IN THE HIGH COURT OF LESOTHO
In the matter of :
TSELISO MONA KHOPISO MONA
Delivered by the Hon. Acting Mr. Justice M Lehohla on
the 15th day, of May, 1987
The two accused appearing before this Court are charged
in two counts.
In count 1 the indictment charges that :
"the accused are guilty of the crime of murder in
that upon or about the 21st day of October 1984 and at or near Ha
the district of Outhing the said accused one or other or
both of them and acting in concert did unlawfully and intentionally
1. 'Mapokoane Solane
2. 'Mamahaila Tsoeute
'Mamatatane Qmane and
In count 11 it charges that :
"the accused are guilty of the crime of assault
with intent to murder in that upon or about the 21st day of October
at or near Ha Mosifa in the district of Quthing the said
accused, one or other or both of them acting in concert, did
and intentionally assault 'Makhotsang Tsoeute by hitting
her with sticks on- the head and thereby
inflicting'multiple wounds and hitting her with
the same on the left arm and stabbing her with a
knife on the nose with intention of killing her,"
The underlined words were inserted following an
unopposed application by the crown for an amendment of the
indictment in this Court.
The oral evidence of 7 crown witnesses was heard. The
witnesses appear in the following order :-
P.W.2: 'Manepo Sepele
P.W.3: 'Mathabiso Tsoeute
P W.9: Chawene SolaneP.W.11: 'Makhotsang Tsoeute
P.W.13: Mohaila Tsoeute
P.W.10: Lebotho SejakhosiP.W.12: Mahlalele Hlalele
It was found desirable and convenient to stick to the
numbering of witnesses as. reflected in the Preparatory-Examination.
The evidence of P.W.1, P.W.4, P.W.5, P.W.7, P.W.8,
P.W.14, P.W.15, P.W.16, P.W.17 and P.W.18 was admitted on behalf of
by their counsel Mr. T. Mda. That of P.W,6 was neither
called nor admitted. P.W.10's evidence was adduced at the instance
counsel who sought to have certain matters clarified by
this witness. The position of P.W.2 in this respect is not different
that of P.W.10. save that, she did give evidence in her
examination in chief lasting hardly half a minute. Her evidence in
was that 4 deceased people and the- two accused were on
good terms in the village, that she never heard of any feud between
them and finally
that they used to visit one another.
Under cross-examination P.W.2 stated that she knew
accused's father called Molefe Mona. Strictly speaking it emerged
that Molefe Mona
is the father of accused 1 and paternal uncle of
accused 2 whose father is the younger brother of Molefe Mona.
Her evidence showed that Molefe Mona died in September
1984 and that he had been ill for some considerable
length of time i.e. about a year before he died though he was never
taken to hospital
nor sent for medical treatment anywhere. She
attended the funeral but testifies that she does not know what
happened there. As
far as she is concerned nothing unusual or
untoward happened at that funeral.
Adopting a positive line of questioning towards her Mr,
Mda put the following questions at the end of each her answers appear
"Don't you remember a certain Nthabiseng.
confessing to people gathered at the funeral that she should be
pardoned for she and
others were responsible
for the death (i.e. of Molefe) - ? I don't
Do you know that Nthabiseng was taken to Makaloli
Mosifa (a chief) to repeat the confession- ? I don't.
3ut this was general knowledge -? I was not there. I
At the time of the removal of the mourning cloth (about
a month later) you didn't hear that Molefe's grave had been dug up -?
But this happened in the village where you lived -? I
P.W.3 'Mathabiso Tsoeute gave equally brief
evidence in her examination in chief. She testified that she saw the
accused fight 'Mamohaila.
and that the accused were not drunk.
Further that they had never had a quarrel with' 'Mamohaila prior to
that day. On the contrary
they used to live peacefully with the
In much the same way as the evidence of P.W.10 and P.W.2
at P.E. the evidence of this witness at P.E. had been admitted save
she was called to make certain clarifications for the benefit of
Under cross-examination she said that she knew Molefe
who died in September 1984 and that she attended his
funeral. As far as she remembers there was nothing unusual that
occurred at that
funeral concerning Nthabiseng. She said she did not
know that Nthabiseng was taken to the chief's place immediately after
She said she would not know anything relating to the
day of the removal of the mourning cloth because around that time she
to Qomoqomong. She never heard that Molefe's grave had been
dug up about a month after he had been buried in it. She also
that. Nthabiseng's home is at Ha Sejakhosi a day's journey
by foot from Ha Mosifa the witness's home.
P.W.9 Chawene Solane testified that he is the son
of one of the four deceased i.e. the first deceased in the indictment
in count 1. He testified that 'Mapokoane never had
any differences or quarrel with the accused before her death.
F.W.9's home is
about 70 paces away from the home of the accused and
he and they used, to visit one another before the incident of his
He never heard any rumours in the village leading to
his mother's death. He is not at loggerheads with the accused
Under cross examination this witness did not yield
anything either with.respect to the said Nthabiseng's stunning
behaviour and confessions
at the burial of Molefe
the accused's close relative. He saw Nthabiseng at the
burial. He never heard her confessions.. He never knew that Molefe's
had -been dug up. . At the time of the
removal of the mourning cloth following Molefe's death
he-was absent from his village and had gone to Bolahla Kobo. He
knowledge of any of these peculiarities. In
fact he went on to say he has never ever heard rumours
of any kind about anything in his life.!
P.W.11 'Makhotsang Tsoeute testified that accused 1 is
her brother-in-law. Accused 2 is the son of her husband's elder
On the 21st October 1984 she was at one Motalane's home
where there was beer drinking in Ha Sejakhosi village. When the
came there, accused 1 started hitting her with a stick. She
testified that none of the accused was drunk during the hitting
She said she never knew why they hit her nor did she hear
from the grape vine why they had assaulted her. The assaults were so
brutal that she passed out and only came to three days afterwards in
the Quthing Government hospital. She said that the assaults
took place on a Sunday. She remembers this because the accused were
from Church when they started assaulting her.
Cross-examined by Mr, Mda on whether she was
escorted with Nthabiseng to the Chief's place (i.e. chieftainess
'Makololi D.W.3) by accused 2 and one Lichaba she denied
this allegation. She testified that she knew chieftainess
'Makaloli but was emphatic that she was never escorted
to her place at all. She testified that she was present at Molefs's
but she did not hear anything alleged to have been said by
Nthabiseng there. In fact she said she didn't see Nthabiseng at all
that funeral. She admitted that P.W.12 'Mahlalele was present as
the beer drinking was held at her own house. She denied ever
at the accused then or at any time saying "your father
is there at the cliffs. There's nothing you can do to me." She
denied that accused 1 said to her at the time
"So you confirm the fact that you killed my
In fact she said, she never talked to accused 1 since
his return from the mines. She said she did not know why the accused
her. To the question "why did they assault you., were
they drunk" she said "No, they were from church. Accused
1 just came in and assaulted me,"
"Did you ask them why they assaulted you -? Accused
1 said that was not the point (what I was saying). He said he wanted
feature in the Moeletsi oa Basotho (a local newspaper) and in the
radio broadcasts". "While in the house, you said in the
court a quo, Tlokotsi asked if you are a witch. That is
before the assault started -? I didn't say so.
Were you lying to the Magistrate - ? No But I did not
But the record shows it clearly -? I don't remember if
I said in that court that Tlokotsi asked if I was a witch. Do
you remember if Tlokotsi at all asked if you are a witch He was
I didn't speak to him or he to me. Are you related to
Tlokotsi -? Yes How -? He is my elder brother and we are on good
What about the accused -? Even with them we are on good
terms. When did you stop being on good terms with them -? When they
me I realised for first time that they were not.
Did you hear a rumour in the village that the death of
accused's father was brought about by witch-craft -? No, And that you
were implicated in the practice of witchcraft I have not
P.W.13 Mohaila Tsoeute an old man in his late sixties
after being sworn was told by Mr. Thetsane for
the crown that his evidence had been admitted by the defence but that
he should assist the court by clarifying some points. He
told the court that accused had never had a quarrel with Mamohaila
one of the deceased. He said there was never a rumour
deceased got to be killed He testified that the accused are his
grandsons and that he never inquired why the deceased were
He never heard tell why the killings took place. He further stated
that on the day of the killing the accused were not
Under cross examination he stated that he did not
inquire why the killings took place because he had no such
opportunity because the
accused had already been arrested and he
couldn't ask anybody in the village about it. He knew Molefe the
deceased for he was his
elder brother's son. He was in charge of the
programme at the funeral of Molefe i.e Master of ceremony. He saw
Nthabiseng as well
as P.W.11 'Makhotsang at the funeral. He didn't
hear her say anything after the funeral. Asked whether he knew that
is reputed to have said something at that funeral he
replied that he was away as he left the day following that funeral.
leaving he had not heard anything about Nthabiseng P.W.13 is
not only one of the elders in the village but a headman in it and
acts on behalf of the chief. In that capacity he got to hear
on his return from where he had visited that Nthabiseng, Makhotsang
and 'Malehlohonolo had been escorted to the chief's place by Lichaba
and accused 2= It was three weeks after his return that he
The rumour had it that Nthabiseng had been escorted .
there on the clay of the funeral because she had boasted
that she had killed her grandfather Molefe, As far as this witness'3
went the matter was taken up by the chief who referred it
to a higher chief at Sebapala who in turn referred it to the District
On his return to the village this witness arrived in
Nthabiseng's absence because she had gone to her marital home at Ha
P.W.13 was present when Molefe Mona's family removed the
mourning cloth. He testified that he heard for the first time in
Court that on that day of the removal of the mourning cloth
Molefe's grave had been dug up.
Asked if he heard that his grandsons had killed some
people he replied that he only heard of the killing of one person,
He swore that if the grave had been dup up he
would have known and reported to his chief. He further said his
family don't actually
wear the mourning cloth as such but signify the
occasion by shaving off their hair during the wearing and the removal
never hears of any complaints about witches in his
P.W.10 Lebotho Sejakhosi Letsie after being sworn
was cross examined by Mr. Mda, He stated that he is the chief
of Ha Sejakhosi His village is adjacent to D.W.3 chieftaines
Makaloli Mosifa's village. He somehow
remembers the occasion when
Nthabiseng was brought to him along with 'Makhbtsang P.W.11 after her
father-in-law's burial. These
were brought to him by Lichaba and
another. They were brought to him because he is their chief. They
had been brought to him on
the instructions of D.W.3's the
chieftainess of an adjacent village. The allegation was that they
Molefe, P.W.10 referred them to chieftainess
'MantseboSeeiso. This witness did not know what their fate
was.He did not attend Molefe's funeral either. He did
notremember how many days after the funeral these peoplecame
The last witness for the crown was P.W.12 'Mahlalele
Hlalele who swore that she knows the accused before
Court,, Her home is at. Bolahla-Kobo under Chief Sejakhosi, She
remembers seeing accused
1 assault P.W.11 'Makhotsang. The accused
came from Ha Mosifa village - this is different from her own village.
She had seen the accused many times before 21st October
1984 and known their names. She did not know the
matter of this trial). 'Makhotsang i.e.
P..W.11 's bome is at Ha Mosifa. On. the day in question
she had gone to a donga to relieve nature. While at the donga she
a scream and immediately ran to her house from where the scream
seemed to emanate. The distance between the point in the donga and
her house was estimated at about 500
paces. On coming into view some 150 paces ahead of her
saw accused 1 assaulting P.W.11 with a. stick. P.W.11
fell to the ground. Then accused 1 went away in the direction of '
which lies about 2 kilometres away from P.W.12's
village. The house near which the. assaults were taking
place is P.W.12's. She had brewed beer there for some ten people.
she went to the donga the two accused were not present at her
house. She only saw them when she returned from the donga.
P.W.12 saw blood on P.W.11 's eye and hand. She
appeared to be dead. P.W.11 was carried,into P,W.12's house
. /and she
and she recovered the following day. When P.W.12 went
to the donga P.W.11 was in her house where she had left her. During
on P.W.11. accused 2 was merely following accused 1
keeping a distance of some 3½ paces behind him. She did not know why
1 was belabouring P.W.11.
Under cross examination by Mr. Mda P.W.12 denied
any knowledge of what had transpired between accused 1 and P.W.11.
She testified that she didn't know if any grudges
them. She said P.W.11 would not be telling the truth if she said
before P.W.12 left for the. donga accused 1 and
2 were already at her
house for she would have seen them if they were. She denied
that Tlokotsi was there either before she left for the donga. She
did not see him at any stage for
She denied that she was hiding something. She testified
that she was not withholding any information . from the Court and
the suggestion that the reason for withholding information was
that she knew that Tlokotsi had come to P.W.11 and asked her if she
was a witch.. Elaborating on her version on this point she
said "I would have heard those words if he had uttered them or
if I had
been present when he said them, But I did not see or hear
him." She further said before she went to the donga beer had
out as it was only a quantity of four gallons and she had brewed
it for ten people only. Many more came after it had run out before
she went to the donga. Others were already leaving before she went
to the donga. When the accused arrived in her absence there
have been any beer for them to drink.
Asked how often she goes to Ha Sejakhosi, she said she
never goes there and suggested that she is not used to
that place and that it is far away. Confronted with the fact that a
hardly two kilometres from her home is within walking distance
as shown by villagers from different places including that particular
village from which P.W.11 had travelled from there to the witness's
own home she insisted that she is not used to it.
To the suggestion that she would not have anything to do
with that village because it is haunted she replied that she hadn't
of anything about it. She only got to know the accused because
they attend an Apostolic Church near the Anglican one which she
To the questions that followed she replied as follows:-
"Do villagers from accused's place come
to bury deceased people in your village - ? Yes.
Your villagers go to bury deceased in accused's village
You too go to bury people dying in accused's
village -? Yes".
She knew of accused's 'father's' death in September 1984
but did not attend the funeral because she had gone shopping which
from morning till evening of that day.
Asked why despite the fact that she goes to funerals in
that village she nonetheless said she never goes to that village she
she was not thinking of funerals.
D.W.1 Tseliso Mona gave sworn evidence in which
he testified that his home is at Ha Mosifa, He used to work in the
mines in the Republic of South Africa.
fell ill and died. His surname differs from that of his
father's Molefe Tsoeute because his father took as his surname
grandfather's name. He attended his father's funeral.
After his father's funeral a woman called Nthabiseng said she and.
had killed his father.. Her story involved 'Makhotsang and
Sankoela's wife who owned that they did.
Then accused 2 and P.W.9 Chawene escorted Nthabiseng to
the chief's place. He went along with them to the chief's place i.e.
Makaloli Mosifa's place after they had been to
chieftainess 'Masalomone Mosifa, It involved Nthabiseng, 'Makhotsang
i.e, P.W.11 and
Sankoela's wife. These three were referred to the
Principal Chief after they explained that they had killed Molefe with
called Qhoala, Poho-Tsehla and Letapisa. It was suggested
that those concerned would be told of the date of hearing and outcome
of the matter. They waited but to date were not told.
On the day of the removal of the mourning cloth at his
father's home he heard one Makakamela shouting and saying from
where he was standing "Bafokeng come and see a
miracle." He and others went and found that Molsfe's grave had
out at the position of the head to the coffin level.
He and others went home to explain to Tsukutla who went
to report to the chief. Accused 1 and Lichaba went to Likolobeng to
a witchdoctor who should divine or smell out those
responsible for digging out the grave.The witchdoctor said he
the obvious. He told
accused 1 and his companion that they knew who had
killed accused 1's father and admitted the fact. So by token of the
the ones who admitted the killing are the culprits.
On 21st October 1984 accused 1 and 2 left for Ha
Sejakhosi and came to P.W.12's house. There and then P.W.11 said she
a tinker's cuss; further that accused 1's father was in a
cave and that accused 1 should go and fetch him.
This struck him. as something akin to what he heard
uttered some days ago by 'Mapokoane, 'Mamohaila, 'Mamatatana and
2 then called accused 1 who
explained to him what P.W.11 had said. Accused 1 felt
vexed by this. He immediately hit P.W.11 with a stick.
P.W.11 ran outside the house. Accused 1 hit her again and
she fell to the ground. When she rose from where she
had. fallen and charged at accused 1 he hit her again with a stick
her. Accused 1 says he was very angry because the case
had not" proceeded against the killers of his father and because
deceased in this matter had said Bafokeng were too many and.
deserved slaughter he felt he should start by carrying the battle to
the death to those who threatened to kill the Bafokeng. He testified
that he and accused 2 went to the homes of the various deceased
.. and assaulted them. They started with assaulting
P.W.11; then went to 'Makhalema,then to 'Mapokoane, then to
'Mamatatana and finally
Accused 1 says during all this trail of assaults he was
suffocating with anger due to the fact that he had been
reminded by P.W.11 that his father had died and these
deceased including P.W.11 were responsible, Because P.W.11 was
this infuriating act accused 1 says he intended killing
everyone of them. He says he was sober when belabouring this women.
After the assaults he went and burnt down 'Mamakhalema's
house so that, and these are his words, "even if she survived
she should not live in that house."
He further said he and accused 2 proceeded to
'Mamatatana's while others were salvaging household goods from
'Mamakhalema' s burning
house,. Accused 1 stabbed 'Mamakhalema
with a knife. From there they went to 'Mapokoane and accused 1
stabbed her with a knife
too. Thereafter they went to report to the
police where they were kept in custody to date. While in detention
he went to make a
confession before a magistrate at Quthing because
he did not intend what he did but because of anger. He got to know
that these people had died. Accused 1 says he never went
to school. All he did was to herd after live-stock. He says today he
remorseful about what he did to the victims of his assaults.
Prior to this incident he says he never heard anything
about witchcraft. He only heard about witchcraft from these women.
Under cross examination accused '1 said bis father had
been ill just a week before he died. When his
father fell ill accused 1 was at home but did not take
to a doctor because he did not have money. Consequently
he went back to the mines only to come back after his
On the day of the incident he had gone to Ha Sejakhosi
for beer drinking. He went to Motalane's house. He says he is used
P.W.12's husband and swears that P.W.12 is his cousin.
He and Motalane do share-cropping. His father's things
are even kept at P.W.12's house. He is puzzled that P.W.12 should
him and suggest that she occasionally sees him on Sundays
when he goes to church in her village. He says that P.W.12 was there
he arrived at her house. He explains that he never attested to
the fact that he is related to P.W.12 in his examination in chief
because no question prompted him in that regard. Faced with a
question that he was merely inventing the story that P.W.12 is his
cousin he said P.W.12's father Sekhonyana is the one who is his
cousin and stated that P.W.12 is disowning him merely to hide the
question of her involvement in his father's death.
Accused 1 is adamant that P.W.11 provoked him by saying
she was responsible for his father's death. Asked about the role
the four deceased women in the provocation he said they had
provoked him the previous day.
Although the deceased women provoked him and made him
feel angry with them he denies that he deferred the assault on them
other day. Asked why he assaulted them then his answer is
very garbled and herdly makes any sense at all. His anwer was "I
felt it was
useless because 'Makhotsang had told me that."
However rendered in the vernacular it does seem that by this
meant that since 'Makhotsang had repeated saying
what the deceased had said then he decided "come what may I am
left with no
choice but to assault them". He says he was certain
that P.W.11 was referring to the deceased when she threatened that
others were going to harm the Bafokeng.
To the following questions put to him accused 1 replied
"You planned on the day they uttered the words that
you would carry out the assaults on 21st October 1984 -? No
Why didn't you carry any steps there and then -? I took
steps for I took them to the chief's place.
The same words were repeated on the day of removal of
the mourning cloth -? On that day the grave was dug up."
It seems that the accused are related to all the
deceased. It also appears that none of the deceased was taken to the
Accused 1 admits that the source of his assaults on
the women was Nthabiseng and says that he would have assaulted her
too but for
the fact that she had run away to Mohale's Hoek. He
however says he does not believe in witchcraft despite the fact that
witch doctors sometimes. His reason for not consulting
medical doctors is that they are too far away from his home. Accused
he burnt 'Mamakhalema's house while she was in there
without intending to kill her, but rather to deprive her of her
house. Asked how
he could reconcile this statement with
the fact that it would be impossible for anybody to come
out alive from a house burnt in that manner he was clearly in a
Asked by Mr. assessor Molapo who among the
deceased said Bafokeng you are too many and have to be reduced he
said "They all said it". Shown the rediculousness
he wanted to portray to. the Court he said 'Mamatatana had said that
at his home. Asked if she led them in saying it so that
just chimed in he replied that they were saying it among themselves.
Asked why he had the intelligence to go and hand himself
over to the police after the assaults but did not go to them when he
that the chiefs were delaying in treating of his grievance
he would not give any satisfactory reply save that he gave himself up
to the police because he had done the act and decided to give himself
D.W.2 Khopiso Mona testified under oath that he
is charged jointly with accused 1 with the murder of the four
deceased and the assault with intent to
murder the fifth. He said he
feels sorry about the incidents but that he had the same sense of
grievance as accused 1 against them.
He was very angry on that day
so he acted without intention to harm for he was even from church
Under cross examination he' stated that he associated
himself with what accused 1 said about the deaths and the assault.
he assaulted the other women who did not offer any
provocation on the day in question he replied "They circulated
and it hurt us.
-18-So we decided to finish them up",
"If the version is to be believed thai accused 1
assaulted 'Makhptsang because she had said on that day of the
she didn't care and that they would continue reducing
you Bafokeng, why were these women assaulted -? They had said that
day. On the day of the incident they didn't say anything
How did you feel when 'Makhotsang said those words -?
I felt hurt.
Why did you not assault her -? I did.
you also took part in her assault -? Yes.
Where were "Mamakhalema 'Mamatatana 'Mamohaila and
'Mapokoane -? At their homes.
So you hunted down these other four: -? Yes. You beat
them up and belaboured them when you got to their places -? Yes.
Were you angry when deceased said the words -? Yes. You
didn't beat them up on the day they provoked you. -? No.
Then you managed to hold your anger when provoked by
deceased but when they said nothing you became provoked
to the extent that you assaulted them to death -?
They had. provoked us and they had increased in their
D.W.3 Makaloli Mosifa testified that she is headman of
Ha Mosifa village. The two accused are her subjects including the
She knew Molefe the "father"
of these accused. He was her subject as well. When
Molefe died she was at home but she did not attend the
-19-funeral because she was ill.
After his death and funeral she saw people living in
that place arrive escorting Nthabiseng, 'Makhotsang and Sankoela's
arrival Nthabiseng spoke and said D.W.3 should plead for
her pardon to Nthabiseng's uncle Jobo for she was the one who had
her uncle Molefe. D.W.3 sent Nthabiseng to a senior chief
'Mantolo Nkuebe the following day. The group had spent the night at
place. She never knew what action chieftainess 'Mantolo took
about the people she had referred to her. She further testified that
she knew of the occasion of the removal of mourning cloth in respect
of Molefe's death. However she did not attend the ritual because
was not feeling well.
She never heard what happened at the grave yard on the
day of the removal of the mourning cloth. She knows Tsukutla as one
subjects. He never brought to her a report that a grave had
been dug up. She learnt of the deaths of the four women from one
On being cross-examined she said it was only Nthabiseng
who asked for pardon. She as chieftainess even asked why others were
along and Nthabiseng said she was in it with them. Asked if
in her opinion or from her observation Nthabiseng is normal she
"I am not a doctor".
"But she is your subject -? On that day she did
Prior to that day -? She was normal. Subsequent to that
-? She was normal. On the day in question what is it she did to
being abnormal -? She appeared to be wild and she was
Where were 'Mapokoane, 'Mamohaila, 'Mamatatane and
'Mamakhalema -? No. they were at their homes.
Who was escorting these people to your place -?
Accused 2 and Mochini-Boy P.W.5 and many others and
Chawene Solane P.W.9.
Did 'Makhotsang and Sankoela's wife confirm what
said "?No, they denied it.
Did accused 2 hear them deny -? Yes he did.
What was his reaction to that -? Nothing,
Were the names of 'Mapokoane, 'Mamatatane, 'Mamahaila
and 'Mamakhalema mentioned by Nthabiseng -? No,
Did you render no service to these people who came
before you looking for service -? I rendered them
service by making a letter referring them to my
D.W.3 said that she would have known if action had been
taken regarding her subjects by senior chiefs in as much as she got
that her senior chief was brought by defence counsel to
Maseru in connection with the instant trial. Nthabiseng did not say
she killed Molefe. She said when asked how she killed Molefe
Nthabiseng merely continued saying that she be pardoned. She
that Molefe had been ill for about a month. But he was
already very lean. As far as she could see he died from illness
by ordinary pains of life. She finally said that she would
deny any evidence suggesting that Tsukutla ever told her that
grave had been dug up. She also said that although
Nthabiseng had been married off from her village as her
father is her subject she used to see her go past her village when
but since the incident she has never seen her again.
With reference to the evidence that was admitted as it
appears in the preparatory examination record it is important to note
P.W.1 'Matiisang Monese stated that she is related to the
deceased. 'Mamakhalema. On 21st October 1984 she was in
company outside her home when both accused arrived and
assaulted the deceased with sticks.. After being taken into the house
who responded to the alarm raised by P.W.1 when she ran
away in desperation from the alarming incident 'Mamakhalema was again
to- by the two accused. Accused 1 had the cheek, even at this
stage to inquire in mock surprise whether in the state the deceased
was whether she was still alive. P.W.1 says she-was bleeding from
the wounds at the time.
As if that was not disconcerting enough to be stopped
there and then accused 1 after swearing at deceased by
calling her "satan" and a- witch drew a knife
and stabbed her whilst she was lying on the ground. He also
with violence when the latter was trying to put
out the fire accused 1 had set to Mamakhalema's house with the aid of
from accused 2 to whom it had been made obvious what
the matches were required for. Accused. 2 willingly handed over the
to accused 1 to. accomplish his purpose despite the fact that
'Mamakhalema was in that house and completely helpless and couldn't
escape the fire in order to preserve her life.
P.W.2 'Manepo Sepele also in her evidence that was not
gainsaid explained the horrifying incident which she observed as the
started attacking 'Mamatatane with sticks after the deceased
asked why they seemed to be in such a hurry. They attacked P W 2 and
chased her away so that she couldn't intervene in 'Mamatatane's
behalf. Having returned from the chase they came to the deceased
where they found her fallen on her face. Accused 1 drew his knife and
stabbed her behind the right shoulder with it. The deceased
of him:- "Are you finishing me up completely?" and the two
accused left her there without the slightest compunction.
P.W.3 'Mathabiso Tsoeute likewise explained the
occurrence of a grim act executed on 'Mamahaila by the two accused
As reflected in the admitted depositions of P.W.8 Leona
Solane, 'Majpotooane a lady of advanced years was also cruelly
the two accused with sticks. She later died from the
injuries she had sustained.
The accused made confessions before the magistrate
Mapeshoane - Esquire. There is no dispute as to the contents of both
No force or undue influence was applied to induce the
Though the medical evidence at P.E. was as well admitted
it appears there is some confusion as to whose the burnt body was
the deceased 'Mamakhalema and 'Mapokoane. It may well be the
confusion was brought about by the identifying witnesses especially
when P.W.18 Dr. Stalimach had so many dead bodies to
examine. Evidence shows that the deceased whose house
was burnt while she was inside it is 'Mamakhalema yet in his report
at P.E. P.W.18 referred to 'Mapokoane
Solane's body as consisting of bone particles and the ball of the
thigh which was on the ashes.
In his address Mr. Thetsane for the crown submitted that
matters were not hotly disputed in this case. P.W.12 said she saw
1 assault P.W.11. There seems hardly any reason to
disbelieve her. Accused 2 said he himself also assaulted, P.W.11.
This he said
under cross examination. The charge alleges that he was
acting in concert with accused 1. It would appear that on the
of common purpose he would hardly escape liability for this
assault once it was proved that he associated himself with the acts
accused 1 even if he did not. deliver any physical blows. See
Jenk. Cent. 271 "Qui non propulsat injuriam guando potest,
who does not repel an injury when he can, induces it,"
or 2 Inst. 146
"He who does not prevent what he can prevent, seems
to commit the thing."
Crown evidence showed that on 21st October 1984 the
witnesses saw the two accused assault the deceased and P.W.11. They
did not know
the cause of the assault. Under cross examination they
showed that they knew of no dispute between the accused and any of
except P.W.10 who said he had heard through grape vine
that assaults had been carried out because deceaseed had allegedly
Molefe the father and uncle of the accused.
For all her protestations to the contrary it became
clear especially from D.W.3's evidence that P.W.11 was
escorted to the chief's place as one of those complained
of having bewitched Molefe. Mr, Thetsane very properly conceded this
Moreover Mr. Mda had laid bare her untruthfulness when
contrasting her evidence in this Court and that in the court a quo
regarding the fact that she in that court said Tlokotsi asked her
whether she is a witch. A point she strenuously denied in this
Court. Her assertions also that she never went to accused's village
showed that she is a very facile liar for it turned out in evidence
that she went to funerals in that village before. Equally astounding
by its pointlessness is P.W.9 Chawene' s assertion that he
never hears rumours of any kind in his life. As clearly indicated by
Mr. Mda Chawene was apt to conceal certain information because
as revealed by D.W.3 a witness whose evidence is most worthy of
who was frank and did not attempt to conceal anything was
positive that among those who had escorted Nthabiseng, P.W.11 and
wife to her place were not only accused 2, P.W.5 but
Chawene P.W.9 as well.
As to the crux of the matter it was submitted no reason
could be found why the accused assaulted the deceased and P.W.11.
to the accused the assault started at P.W.12's house where
P..W.11 had uttered some words.
The others were assaulted on the allegation that they
had said they had caused the death of Molefe.
The defence raised is not a defence as such but
provocation which is a plea in mitigation.
What escapes one's understanding about the accused's
reactions is the fact that according to them the deceased had uttered
words the previous day; yet they did not react there
and then as would become one who is said to have been stung to the
waited for their anger to cool off only to be sparked off
a day after by P.W.11 who for that matter was not within the
vicinity of the deceased from which point it could be said
they heard the provocative words and at its extremest did nothing to
themselves from their utterer.
Even if the accused genuinely believed their "father11
had been killed by some occult methods inexplicable by resort
to any conceivable phenomena they should not have taken the law into
their own hands because they had already laid their complaints with
the lawful authorities.
Mr. Thetsane accordingly submitted that the
intention of the accused was to gratify their murderous and brutal
instincts and lust. And that if
it is true that they were threatened
they would have reacted even as the four women were uttering the
provocative words while seated,
as stated, under a tree.
He invited the court to consider that the sole issue for
determination is whether the accused intended to kill. Such
can be facilitated by consideration of the weapons
used. In this case a knife and sticks on defenceless women. Next
portions of the bodies against which injuries were
inflicted. Medical evidence has shown that 'Mapokoane Solane had
inflicted with a blunt instrument and that death
was due to brain damage. The whole scalp had been torn
to pieces. Many sites of the skull had been laid bare with multiple
especially in the occipital area. See EX."c" handed
in on 9th December 1986.
The body of 'Mamatatane revealed in examination that
death was due to brain damage due to assault with a blunt instrument.
3 lacerations on back of the head and multiple skull
fractures with (molil) pieces.
'Mamohaila also suffered death from brain damage caused
by use of a blunt instrument. Although she had no skin laceration
described her injury as a huge depression fracture
underlying (R) fronto pariental.
The fourth specimen for examination is what the doctor
referred to as follows :-
"it can only be stated that there was
presented to examination the ash of a human being of an adult. Age
not possible to give. Nor
sex. Injuries and cause of death: Only
parts recognised 2 x spine 2 pieces of skull and 2 pieces of bones of
Mr. Thetsane submitted that the degree of force can be
gathered not only from the injuries but also from the description by
who saw the accused belabouring the deceased.
As for the nature of injuries it was manifestly clear
that the accused intended killing their victims. A good many of the
died instantly with the exception of the one who was burnt
alive in the house.
In reply Mr. Mda submitted that accused be found
guilty of culpable homicide on the grounds that they had been
provoked. He indicated that the defence
did at no stage
-27-contend that the accused were intoxicated or insane.
Submitting that the accused could not have committed
these acts without cause if indeed they were in their right state of
Mda said it behoves one to find out what their
state of mind was; and accordingly pointed out that the basis of
their reaction was laid
down by D.W.3. Once more this submission
seems to me to be baseless. What is amazing though is to observe
practical aspects of folie a denx finding expression in real
life (The underscored words mean "a delusion shared by two
emotionally associated persons."
Mr. Mda submitted that it does not necessarily
mean that the accused were not provoked that they did not react on
the previous day. I fail
to appreciate the relevance of provocation
in Homicide cases is concerned.
Arguing in this vein it was submitted for the defence
that the accused were labouring under some resentment and that a keen
of grievance was still lingering in their minds despite that
they took no action. They also feared that the women were going to
cause them some harm or kill them. In response to this I would quote
an appropriate legal maxim i.e. "Qui non cadunt constantem
virum vani timores sunt aestimandi - Those fears are to be esteemed
vain which do not affect a firm man."
Another factor which I find completely bizarre in the
accused's action is that having been provoked by P.W.11 they should
in attacking people who were not even near P.W.11.
This is a strange type of novelty
smacking of what one might call provocation by proxy and
ought not to be entertained.
The Criminal Law (Homicide Amendment) Proclamation 42 of
1959 section 3(1) b says "a person who does the act which causes
in the heat of passion caused by sudden provocation ....... and
before there is time
for his passion to cool is guilty of culpable homicide
The above act, in line with the authorities that I have
consulted, does not excuse the sort of conduct that disguises itself
while in actual fact such conduct denotes the idual
accused's predisposition to violence s peculiar fadish reaction or
to happenings in life and worst of all any of his reactions
based on or motivated by his religious or superstitious beliefs and
While it might be argued that there was an element of
suddenness in reaction to p.W:11's provocative words it does not seem
would avail in respect of the four deceased.
Section 4 of this proclamation makes reference to
"provocation defined" in the postil. It is not necessary
to render its
definition for purposes of this judgment.
Moreso because clearly evidence has established that P.W.11 denied
any association with 'Manthabiseng in the alleged
killing of Molefe.
It would not make sense to suggest that it could be hardly a month
after such denial of a matter as serious as
ascribing someone's death
to her P.W.11 could out of the blue
brazen it out to men armed with sticks that she had
anything to do with their relative's death.
Rex vs Makhetheng Setai 1980(2) LLR. 359 at 378
is authority for the view that "provocation does not reduce an
intentional killing to culpable homicide"..
Indeed the only
inquiry to make upon a charge of, murder is whether accused
subjectively intended to kill. If he did then his act
However should the intention to kill be negatived by provocation then
the right verdict to return would be that of culpable
In S. Sigwahla 1967(4) SA. at 570
Holmes J.A. applying the meaning of "intention to kill" to
facts of the case before him stated
"It is sufficient that the accused subjectively
foresaw the possibility of his act causing death
In Rex vs Ngcobo 1921 A.D. at 96 Innes C.J. said
the terrible wounds
"....... showed a violence and a ferosity of
purpose which would naturally imply, if not a
purpose to kill, certainly a determination to do serious
harm calculated to cause death, regardless of the consequences. And
provocation as appellant did receive was wholly
insufficient to account for this determination".
Rex vs Rai Manyangaga & others 1971 - 1973
LLR. 171 by Evans J. clearly shows that belief in witchcraft cannot
per s_e reduce a homicide from murder to culpable homicide.
In Rex vs Butelezi 1925 A.D. at 169 Kot7ee J.A.
"It is ........ well established that great
provocation or sudden uncontrollable passion
may rebut the presumption of malice or an
intent to kill and reduce the killing from murder to
manslaghter. Thus, if a husband finds a man in the act of adultery
wife and, acting on the impulse of the . moment kills one or
both of them,the provocation he received will render him liable for
the crime of ..... culpable homicide......".....
...For the circumstances rebut the presumption of
malice, which is the essential ingredient in the definition of
murder. C/F Rex vs Jolly & Others 1923 A.D. at 180
to 190, where Kotzee J.A. said
"in a case of homicide malice is presumed and it
lies upon the accused to establish by evidence ....... that the
. does not hold against him.
by showing that it is a case of excusable or
See also Mofokeng J's Criminal Law and
Procedure through cases at 233 et seq.
For the above reasons both accused are found guilty of
the murders of 'Mapokoane Solane, 'Mamohaila Tsoeute, 'Mamatatane
'Mamakhalema Monese in count.1.
They are convicted of the assault with intent to murder
'Makhotsang Tsoeute in count 11.
ACTING JUDGE. 15th May, 1987.
For the Crown ; Mr. Thetsane For the Defence: Mr.
RULING ON EXTENUATING CIRCUMSTANCES.
Section 296(1) of the Criminal Procedure and Evidence
Act 1981 lays down that "where the High Court convicts a person
it shall state whether in its opinion there are any
extenuating circumstances and if it is of the opinion that there are
it may specify them".
(2) "In deciding whether or not there are any
extenuating circumstances, the High Court shall take into
consideration the standards
of behaviour of an ordinary person of the
class of the community the accused belongs."
Submitting his argument in an attempt to persuade
the Court to find that there are extenuating circumstances in the
instant case where both accused have been convicted
of the murder of
four women Mr. Mda relied on Rex vs Fundakubi 1948(3)
SA. 810 at 815 where Schreiner J.A. said
" In our view an
is a fact associated with the crime which
serves in the minds of reasonable men to
diminish,morally albeit not legally, the degree of theprisoner's
guilt. The mentality of the accused mayfurnish such a fact. A
mind, which though notdeceased so as to provide evidence of
insanity in thelegal sense, may be subject to a delusion, or
tosome erroneous belief or some defect, in circumstanceswhich
would make a crime committed under its influenceless
reprehensible or diabolical then it would be inthe case of a mind
of normal condition. Such delusion,erroneous belief or defect
would appear to us to bea fact which may in proper cases be held
to providean extenuating circumstance ".
Relying on the above text Mr Mda submitted that
the existence of extenuating circumstances cannot be excluded by
aggravating factors such as brutality, premeditation
Re-iterating this view Jacobs C.J. as he then was
in Rex vs Botso Mashaile and Others 1971-73 LLR.
at page 164
"Nothing which influenced the accused's minds or
emotions and therefore their conduct can be ruled out even if it was
for them to be so influenced. Nor must the brutality
and callousness of the deed be given men much weight and be allowed
exclude the possibility of extenuating
It is trite that the subjective view of the accused's
conduct is of great importance in determining the existence or
In Fundakubi supra Schreiner J,A. at 815
went further krever to point out that a belief in witchcraft may
serve as a basis for finding that extenuating circumstances
among other things the victim practiced witchcraft to grave harm.
It was submitted on behalf of the accused that a basis
exists for finding that extenuating circumstances exist in their
the death of their "father" provided a basis
for the accused's belief that he had been bewitched. Secondly the
confession by Nthabiseng in P.W.11's proveace that they
and others caused Molefe's death by some recondite means. Thirdly
by deceased that they were going to illiminate all
the Bafokeng. Fourthly the provocative words by. P.W.11 which led to
on her which sparked off and flamed latent feelings of
grievance against the deceased resulting in their being battered to
I have considered all the submissions made on behalf of
the accused, including the fact that they are men of humble
Schreiner J.A.supra makes reference to the fact
that an accused in witchcraft case is entitled to a finding that his
belief constitutes an
extenuating circumstance if his victim
practiced witchcraft to grave harm. In this case the accused were
afforded an opportunity
to hear some of their suspects deny that they
had bewitched. Molefe and caused his death by use of witchcraft. See
page 12 of the
judgment along with D.W.3's evidence.
In Rex vs Rai Manyangaza 1971 -73 LLR at
175 in finding that extenuating circumstances existed Evans J.as he
then was took into account that "there had
been drinking by all,
but insufficient to support a defence of intoxication in law."In
the instant case the element of drink
by accused was excluded by both
of them and crown witnesses.
Finally in Fundakubi supra at 819 it is
stated that :
"But even within the class of witchcraft murders
with which we are dealing it should not be supposed that the
existence of a
belief in witchcraft
must necessarily and in all cases be treated as
an effective extenuating circumstance"
I have come to the conclusion that whatever extenuating
circumstances may exist do not serve to palliate the horror of this
Henes I find none in respect of either of
TSELISO MONA will you say why death sentence should not
be imposed on you ....? I did not do the act intentional I was pained
deceased saying they had killed my father.
KHOPISO MONA will you say why death sentence should
be imposed on you....?
"I took long taking indifferent attitude
towards the provocation. If it was not for the words we would not
have committed the murder.
I pray for lenient
sentence. My children I left with no one to look after
them. Father is aged. I am the only son. I ask for forgiveness.
In respect of the assault with intent to murder in Count
11 each accused is sentenced to three years' imprisonment.
In Count 1 Tseliso Mona in respect of the murders of
'Mapokoane Solane, 'Mamohaila Tsoeute, 'Mamatatane Qamane and
the sentence of this Court is that you be removed
from the place where you are standing, taken in custody where on an
you will hang by the neck until you are dead.
In count 1 you Khopiso Mona in respect of the murders of
'Mapokoane Solane, 'Mamohaila Tsoeute, 'Mamatatane Qamane and
Monese, the sentence of this Court is that you be
removed from here to the place of custody where on an appointed day
you will hang
by the neck until you are dead.
May God have mercy on your souls.
My assessor agrees with the findings.
ACTING JUDGE. 22nd May, 1987.
For the Crown : Mr. Thetsane For the Defence : Mr.
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