CRI/T/15/86

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

REX and

BENEDICT QHELANE 1st Accused

LIMO RANKOPANE 2nd Accused

TELLO MABULA 3rd Accused

TELANG PAKELA 4th Accused

MOTIPI MPHAFI MAKHUBE 5th Accused

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 9th day of August, 1989

The accused are charged with the murder of Nkhetheleng
Mokutu (hereinafter referred to as the deceased) on the 12th day of
July, 1985
at or near Ha Makhakhe - Maphutseng in the district of
Mohale's Hoek. The accused have pleaded not guilty.

When the trial started on the 3rd February, 1987 all the
accused were present. On the 20th October, 1987 the third accused
failed
to attend and a warrant of his arrest was issued and the
case-was postponed to the 22nd October, 1987. On that day the third
accused
was still at large and the Crown counsel applied for a

/separation „

-2-

separation of trials. The application was granted and
the trial continued without A3. On the 3rd February, 1988 A3 was
arrested and
brought before Court. His explanation as to why he
failed to appear was found to be unsatisfactory and his bail deposit
was forfeited
to the State. He was committed to prison. The original
numbering of the accused was retained throughout the trial.

The first witness called by the Crown is Dr. Letele who
performed a post mortem examination on the body of the deceased on
the 19th
July, 1985. He formed the opinion that death was probably
due to traumatic shock and loss of blood. Externally the dead body
had
a laceration on the right parietal region of the head, laceration
on the right hip, abrasion on the right shin, laceration on the
upper
lip. Penis and the left testicle were missing (but were found
separately); the right testicle was out of the scrotum but was
still
attached to the cord. He formed the opinion that the injuries were
caused with a sharp object and that the injury on the head
and on the
upper lip could not cause death. The removal of the penis and the
testicles caused a lot of blood loss.

Incrossr-examination Or. Letele deposed that in the
district the most important function of a medical officer is to
determine the
cause of death and not to pay much attention to minor
injuries. He admitted that there could have been other minor
lacerations on
the head which he overlooked. He said that he put a
question mark before "Traumatic shock" because the deceased
might have
been in a

/state of

-3-

state of shock and that it may have contributed to his
death but he could not be certain. He recorded his findings on a
paper immediately
after the examination and later transferred the
information to the prescribed form (H.25) (Exhibit A).

'Mabereng Mpana (P.W.2) testified that on the evening of
Friday, the 12th July, 1985 between the hours of seven and eight she
was
in her house in the company of Pinky, Lesaoana and the deceased.
A1 suddenly pushed the door and entered into the house. He stood
in
the middle of the house and pointed at Pinky. He asked who he was.
Pinky told him his name. He then pointed at Lesaoana and asked
him
his name. Lesaoana told him his name. He finally came to the deceased
and asked him the same question he had asked the others.
When the
deceased told him his name, A1 rushed at him and grabbed him by his
blankets and said: "I have been looking for you."
He pulled
him and forced him to jump over the fireplace where a wood-fire was
still burning. At that time one Seshophe Makhube (P.W.5)
came into
the house and asked where they were taking his employee to. The
deceased was his shephered. A1 said that A5 had instructed
them to
take the deceased to him. A5 is the headman of the village of Ha
Makhakhe.

'Mabereng deposed that she went out of the house and saw
A4 peeping through the door. He was holding a stick. As she went out
all
the people who were in the house followed her. When Seshophe
suggested that they should take him instead of the deceased, A1 said,
"When I mean to do a thing, I do it." At that time the

/deceased

-4-

deceased told his captors that his shoes remained in the
house. A4 ordered her ('Mabereng) to fetch them. She refused because
she
did not know where they were taking the deceased to. He had left
the shoes and his stick in the house. A1 said they should go; she
cried and went to the home of her neighbour one Octavia Makhetha
(P.W.4). She stood behind Octavia's house and called her. Octavia
came to her and she made a report to her. Octavia went to A1 and the
others and asked him where they were taking the deceased to.
'Mabereng says that the people who were with A1 and A4 appeared to be
many but she could not identify them because it was dark. A1
and his
companions went away with the deceased. She and Seshophe went to
Octavia's house. She asked Seshophe to go to A5's place
and to find
out if A1 had taken him there. She returned to her house and never
saw the deceased again.

In cross-examination 'Mabereng told the Court that the
deceased was the elder brother of her father-in-law. He had lived at
Ha Makhakhe
for two years and A1 and A4 knew him very well. His home
was at Ha Ramonyatsi. It was the first time that A1 and A4 came to
her house;
she was frightened because they came at night. She did
not know that the deceased had assaulted A5, nor did she know that on
the
10th July, 1985 he and Seshophe had assaulted Kelebone Kotele and
cut his leg. As far as she is concerned the deceased was not a
dangerous man. She did not follow the group that drove the deceased
to the chief's place because she had a small baby.

/Lesaoana

-5-

Lesaoana Makhabane is a youth of seventeen (17) years of
age. He was in the house when A1 entered and pulled away the
deceased. He
is Seshophe's brother. He deposed that when A1 came he
asked them their names before he pulled away the deceased. He
contradicts
'Mabereng that A1 was alone when he entered. I think the
contradiction can be explained by the fact that 'Mabereng said A4
peeped
at the door and did not enter into the house. He denied that
'Mabereng cried at any stage when the deceased was dragged out of the
house. He denied that A1 said he was taking the deceased to the
chief's place because the chief wanted him. He also denied that the
deceased was wearing any shoes when they went to 'Mabereng's place.

Octavia Makhetha's evidence was to the effect that when
'Mabereng shouted at her, she came out of her house and she saw two
people
who were pulling another person. She went to those people and
found out that they were A1, A4 and the deceased. She asked them
where
they were taking the deceased to. A4 answered and said nothing
or no harm was going to be done to him. She suggested to them to
leave
the deceased alone because it was at night and to take him on
the following morning. A1 replied and said, "When I mean to do
a
thing I do it." She returned to her and learnt after a few days
that the deceased was dead.

In cross-examination Octavia said that she did not see
Seshophe that evening when she spoke to A1. She heard when A1 asked
the deceased
saying "where is that money". She did not know
that the deceased had cut off the leg of one Kotelo

/Seshophe

-6-

Seshophe Makhube (P.W.5) deposed that on the 12th July,
1985 he was returning from town and called at the home of 'Mabereng.
It was
at about 8.00 p.m. He passed A4 outside the house and noticed
that A1 was pulling the deceased out of the house. He asked them
where
they were taking the deceased to. A4 said they were taking him
to A5. At about 9.00 p.m. he went to A5's place to find out what was
happening to the deceased who was his shepherd. On arrival at A5's
place he spoke to A5 and asked him about the deceased. A5 told
him
that the deceased was to be taken to his chief, Hlasoa Lerotholi. He
pleaded with A5 not to take the deceased to Chief Hlasoa
during the
night and asked A5 to release him to him and undertook to bring him
on the following morning. A5 threatened to assault
him and ordered
him to go away. He left for his home.

Seshophe deposed further that just before he left he had
been in the kitchen with A1, A2, A3, Moqekele Mabula, Jobo Mafeela
(P.W.6)
and A5 as well as the deceased and A5's wife and Makoeneho
Mohakala (P.W.7). A5 caught hold of the deceased and pulled him into
the
adjoining room which was A5's bedroom. A1, A2, A3 and A4 followed
A5 into the bedroom. It was dark in that room and he did not see
what
was happening. On the following day he went to Chief Hlasoa's place
and found out that the deceased was not there. From there
he went to
Chieftainess 'Mabereng Lerotholi (P.W.15) to whom A5 is subordinate.
She wrote a letter to A5 and gave it to him (Seshophe)
to deliver it
to him. He had been at loggerheads with A5 for a long time. The cause
of their dispute was over the inheritance. On
one occasion A5
impounded his horse and demanded

/M50-00 as.......

-7-

M50-00 as compensation for the damage allegedly caused
to crops. The senior chief instructed A5 to release the horse on
payment of
only 50 cents. Seshophe says that on the day he delivered
the letter to A5 for the release of the horse, A5 fought with him and
hit
him with a fist.

In cross-examination Seshophe denied that he said A1 and
A4 should take him instead of the deceased. He did not hear the
discussion
concerning deceased's shoes. He denied that he and the
deceased assaulted A5 when they delivered the letter to him. The
deceased
was at the cafe about 50 yards away when A5 assaulted him,

The evidence of Jobo Mafeela P.W.6 was to the effect
that he also followed the group of people who were escorting the
deceased

to the home of A5. When they arrived at the house of A5,
the

he deceased was taken into the bedroom and he saw when
A1 tied the

deceased with a wire on the wrists and tightened the
wire with a pliers. A3 covered the mouth of the deceased with a
bandage. A5 instructed
then to take the deceased to his chief, Chief
Hlasoa. All the accused except A5 escorted the deceased in the
direction of Chief Hlasoa's
area. However, as soon as they passed the
school, they left the road leading to Chief Hlasoa's place and took a
different direction.
Jobo says that it was at this time that he
decided to return to his home. He returned to his home and slept. He
never returned to
A5 to report that the accused were not taking the
deceased to Chief Hlasoa but were going in a different direction. He
did not do
so because it was at night. But he most surprising thing
is that on the following morning he did not give a report to A5.

/When

-8-

When it was put to him that immediately after he had
returned to his home the deceased escaped and ran away, he said he
did not know
that.

I clearly indicated during the trial that Jobo Mafeela
was so unreliable that his evidence must be rejected by this Court in
its entirety.
He contradicted himself on several points and even
admitted that he was confused or telling a lie. It would be very
dangerous to
rely on his evidence to arrive at any decision.

'Makoenehelo Mohakala (P.W.7) corroborated the other
Crown witnesses that the accused and the deceased arrived at the home
of A5 that
night. She had been invited by A5's wife who had brewed
some beer for her. She left before the deceased started his journey
to his
chief.

The evidence of Chieftainess 'Mabereng Lerotholi
(P.W.15) was to the effect that on the 10th July, 1985 A5 and
Seshophe appeared before
her court and after their dispute was
resolved, she ordered them to keep peace. A5 then said he had excused
Seshophe but said that
he would hunt the deceased day and night til
he killed him. It is surprising that Seshophe, who was an interested
party before the
chieftainess, does not refer to this threat in his
evidence. Motsie Makhube (P.W.8) says that the words uttered by A5
were, "I
tell you, I am going to hunt for the deceased day and
night, I shall find him and he will be carried by a skin blanket."
(mokhahla).
The words are slightly different but mean the same. In

/Sesotho when.......

-9-

Sesotho when one says "you will be carried by a
skin blanket; he simply means that you will die.

The evidence of all the police officers who investigated
this case does not carry the Crown's Case any further. It is common
cause
that on the 17th July, 1985 Warrant Officer Jane and Detective
Trooper Letsoepa attended the scene of the crime at the top of
Motlejoeng
Mountain. They found the body of the deceased, it had the
injuries which have been described by the doctor who performed the
post
mortem examination. The penis and one testicle were cut from the
body and were lying near the feet of the deceased. His blanket and
two woollen hats were found some distance from the body. There was a
pool of blood at a distance of about seven paces. A piece of
a stick
was found near the body. After the discovery of the body the accused
were taken to their homes where certain weapons were
found and seized
by the police as exhibits.

At the close of the Crown case, the defence closed their
case without calling any witness.

The Crown case is based on circumstantial evidence.
Their attempt to secure the attendance of one Berende Moqekele, who
is an accomplice
in this case, was in vain. In a proper case it is
possible for the Crown to get a conviction relying on circumstantial
evidence without
any eye-witnesses. The question to be decided by the
Court in the present case is whether this is a proper case in which a
conviction
can be sustained on the circumstantial evidence

/adduced by.

-10-

adduced by the Crown. The case for the Crown is that on
the 12th July, 1985 A1 and A4 arrived at the home of 'Mabereng Mpana
and dragged
the deceased and took him to the home of A5. On the way
to A5's place they were joined by A2 and A3. When they arrived at
A5's place
they were instructed by A5 to take the deceased to his
chief, Chief Hlasoa Lerotholi. It was alleged that deceased was a
troublesome
and dangerous man who had assaulted A5 and one Kotelo.

The deceased never reached his destination. On the
following day Seshophe went to Chief Hlasoa and found out that the
deceased was
not there. Three days later the dead body of the
deceased was found at the top of Motlejoeng Mountain. It was very
clear from the
body and the surrounding area that the deceased had
been murdered. According to the evidence of the doctor, he died on or
about the
13th July, 1985 and death was probably due to loss of blood
and shock. Loss of blood was mainly from the wound on the scrotum
caused
by castration.

The accused deny the charge and according to what was
put to Jobo Mafeela in the cross-examination, is that the deceased
escaped while
he was being escorted to Chief Hlasoa. The
cross-examination on this point was so brief that we do not know what
the accused did
when the deceased escaped. Did they make any attempt
to recapture him? And if they did how far did they chase him? What
did they
do if he outran them? All these questions and many others
remain unanswered because the accused elected to remain silent after
the
close of the Crown case. Be that as it may, the onus is on the
Crown to prove its case beyond a reasonable doubt.

/In the South......

-11-

In the South African Law of Evidence, 1st edition by
Hoffmann, the learned author states the law regarding circum­stantial
evidence
as follows:-

"All circumstantial evidence depends ultimately
upon facts which are proved by direct evidence, but its use involves
an additional
source of potential error because the court may be
mistaken in its reasoning. The inference which it draws may be a non
sequitur,
or it may overlook the possibility of other inferences
which are equally probable or at least reasonably possible. It
sometimes happens
that the trier of fact is so pleased at having
thought of a theory to explain the facts that he may tend to overlook
inconsistent
circumstances or assume the existence of facts which
have not been proved and cannot legitimately be inferred."

In R. v. Blom 1939 A.D. 188 at pages 202 - 203
Watermeyer referred to two cardinal rules of logic as follows:

"(1) The inference sought to be drawn must be
consistent with all the proved facts. If it is not, then the
inference cannot
be drawn.

(2) The proved facts should be such that they exclude
every reasonable inference from them save the one to be drawn. If
they do not
exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct."

Again in R. v. Hodges (1838), quoted in Wills,
Circumstantial Evidence (7th Edition) p.45 Alderson, B. said:

"The mind was apt to take a pleasure in adapting
circumstances to one another, and even straining them a little, if
need be,
to force them to form part of one connected whole; and the
more ingenious the mind of the individual, the more likely was it, in
considering such matters, to overreach and mislead itself, to supply
some little link that is wanting to take for granted some facts
consistent with its previous theories and reasoning to render them
complete."

/All what........

-12-

All what the Crown has proved in the present case is
that on the night of the 12th July, 1985 A5 instructed A1, A2, A3,
A4, Berend
Moqekele and Jobo Mafeela to take the deceased to Chief
Hlasoa. He was subsequently found murdered. A5 had a motive to kill
the deceased
because he regarded the deceased as a dangerous man in
his village. A few days prior to the killing of the deceased A5 had
expressed
his intention to hunt the deceased day and night till he
killed him. As I said above there is a bit of doubt that A5 uttered
those
words in the presence of his senior chief. I have also stated
that Jobo Mafeela was an extremely unreliable witness. He is the only
one who gave evidence as to what A5 said to them before they started
to escort the deceased to Chief Hlasoa.

The Crown has urged me to infer that the instructions of
A5 to the accused and Jobo Mafeela were that they should go and
kill the deceased on the pretext that they were taking him to his
chief. That the accused actually carried out the instructions of A5.
The question is whether this is the only reasonable inference
that
can be drawn from the proved facts; bearing in mind that the accused
have indicated in cross-examination that the deceased escaped.
To
answer this question the Court must find that the story of the
accused is not only improbable but that beyond a reasonable doubt
it
is false (R. v. Difford 1937 A.D. 370, at p. 373). Has the
evidence of the Crown ruled out the possibility of an escape and the
possibility of other people
killing the deceased after his escape
from the accused, more especially because A5 allegedly expressed his
intention in public that
he would kill him?

/The Crown

-13-

The Crown attempted to rule out the possibility of
escape by showing that the wrists of the deceased were tightly
fastened with a
wire and that a pair of pliers was used to tighten
the wire. This piece of evidence was challenged by the Crown on the
ground that
if it were true some marks ought to have been found on
the wrists. I think there is some substance in this argument. In any
case
that piece of evidence came from a very unreliable witness, Jobo
Mafeela. No marks were found on the wrists of the deceased by either
the police or the doctor.

The possibility of the killing of the deceased by other
people is a very remote possibility. It is remote because there is no
evidence
that the deceased had many enemies who were watching his
movements during day and night. How ever remote that possi­bility
might
be it is a possibility which must be considered by the Court
especially because A5 is alleged to have made known his intention to
kill the deceased in public. The other point to be considered is that
the body of the deceased was discovered after three days and
the
doctor estimates that he might have died about six (6) days prior to
his examination which was carried on on the 19th July, 1985.
Anything
could have happened to the deceased between the time of his escape
and the time his body was found.

during argument I was referred to the case of R. v.
Dube, 1915 A.D.557. The facts of that case are distinguishable
from the present one in that in the former immediately after the
accused
left her house it was found to be on fire and the door had
been securely fastened from outside with a chain, part of the
wind-scream
which was made of reeds, had been broken down. It had
been

/removed and- ..

-14-

removed and placed against the door, and was on fire
too. The accused's husband was burnt to death. She was convicted of
murder. In
the present case the body was discovered three days after
the deceased is alleged to have escaped from the accused-Much was
made
of the fact that the accused failed to testify. I think the law
concerning failure to testify was clearly stated in the case of S.
v. Theron, 1968 (4) S.A. 61 (T.P.D.) in which it was held that
'generally, in regard to an accused's failure to testify, a useful,
practical
distinction can be drawn between situations in which
the State's case is (i) the direct testimony of a witness or
witnesses and (ii) circumstantial evidence In (i) , if the testimony
is wholly credible or non-credible, no pro­blem arises,
for, in former case, the accused's failure to contra­dict the
credible evidence must inevitably result in
the prima facie
becoming conclusive proof, and, in the latter case, it would be
irrelevant: there would then be no prima facie proof and the
accused's silence could not make or restore the State's case. It is
only when the State's evidence, although amounting
to prima facie
proof, creates some doubt about its credibility that the accused's
silence becomes important, and may be decisive, for his failure
to
contradict the State's evidence may then resolve the doubt about its
credibility in the State's favour. In (ii), if the inference
of the
accused's guilt or innocence can be drawn with the requisite degree
of certainty, the accused's silence is unimportant. It
is only of
importance if, although there is prima facie proof of his
guilt, some doubt exists whether that proof should now be regarded as
conclusive, i.e. that the only reasonable inference
from the facts is
one of guilt.

I am of

-15-

I am of the opinion that in the present case the Crown
has established a prima facie case but some doubt exists as to
whether that case should now be regarded as conclusive. That doubt
must be exercised in favour of
the accused.

The accused are found not guilty and discharged. My
assessors disagree.

J.L Kheola

JUDGE
9th August, 1989.

For the Crown - Hiss Moruthoane
For first four
Accused - Mr. Pheko
For fifth. Accused - Mr. Nthethe.