IN THE HIGH COURT OF LESOTHO In the matter
RAMANAKA MOTHIBETSANE MOQHOBELA PETLANE
Before the Honourable the Chief Justice Mr. Justice B.P.
Cullinan at Quthing on the 22nd day of September, 1989.
For the Crown : Mr. L.L. Thetsane, Senior Crown
Counsel For the Accused : Mr. S. Moorosi, Legal Aid Counsel
Cases referred to:
Tsomela v R (1974/75) LL.R. 97;
R vMotaung (1961)2 S.A. 209.
The two accused stand jointly charged with the murder of
Seetseng Makume at Ha Ramatlepe in the district of Mafeteng on the
23rd November, 1985. The second accused was hitherto the
fourth accused, as originally both accused were jointly charged with
others, Mphonyane Leferefere and Noosi Mothibetsane as the second
and third accused respectively. All four accused were granted bail.
The case was called on, on the 30th of May, 1988, at the
Sessions in Quthing, on which occasion the first and
third accused were at large. Before the trial could proceed however,
accused also disappeared. Since then the first accused
has been re-arrested. The Court ordered separation of trials at these
and proceeded with the joint trial of the first and fourth
accused. Although the fourth accused now appears as the second
on the indictment, it will be convenient to refer to him
throughout as the fourth accused.
The deceased met his death at a stokfel arranged by
'Masupang Leferefere on the date in question. Guests started arriving
at 8 a.m.
in the morning, and drinking commenced shortly thereafter.
'Masupang had arranged a large quantity of beer for sale. The third
was one of the first to arrive at the stokfel. The deceased
arrived thereafter. None of the other accused were present at that
The third accused left before 11 a.m. Around noon, the deceased
purchased a four-gallon tin of Sesotho beer and invited a number
friends to drink with him. The beer was consumed outside 'Masupang's
house, in the forecourt thereof.
Gerard Mpela, a guest at the stokfel, testified that he
left the party before 11 a.m. and returned before 1 p.m. At that
found that the third accused had returned to the party, but,
as the witness testified, he was "standing away from those
and again, "he was going up and down some distance
Sometime between 3.30 and 4.00 p.m. the fourth accused
arrived. There was still some beer left at that stage. The
deceased offered the fourth accused some beer. The
fourth accused drank from the container offered to him by the
deceased, but when
he went to hand it back, the deceased insisted
that he drink it all, which he did. Another guest at the stokfel,
testified however that the fourth accused spilt
some beer on himself when drinking it, and the deceased admonished
him, saying, "Drink
nicely, don't spill it on yourself".
The deceased went to purchase some more beer, but apparently there
was none left in the
house to purchase.
Gerard Mpela testified that the first accused then
arrived. He came past where the witness was sitting, in a hurry, a
stick in his
hand. He approached the deceased from behind. The
deceased was not aware of his approach. The first accused struck the
deceased once on the back of the head. The deceased fell
on the spot. Rethabile Leferefere however testified that the first
struck the deceased on the back of the head and that the
deceased staggered some ten to twelve paces before collapsing, when
first accused struck him again. Gerard Mpela testified that when
people tried to rush to the deceased's assistance, they
found the second accused, who had suddenly appeared at
the stokfel, and the third and fourth accused, already around the
belabouring him with sticks and even with the
deceased's own knobkerrie, which had been taken from him by the third
As to the fourth accused, there is some contradiction as
the nature of his participation. Gerard Mpela testified,
as I have said, that the fourth accused also belaboured the fallen
He observed him, standing over the prone deceased holding a
sword in an upraised hand. 'Masupang arrived on the scene however,
snatched the sword from him. The transaction took everyone by
surprise and was of the briefest duration. All accused suddenly
and departed, going down the slope from the stokfel, the
third accused, apparently in jubilant mood, blowing a whistle.
'Masupang testified that she was inside the house when
the assault commenced. She heard a noise. When she emerged she saw
accused chasing Rethabile. The latter outran the fourth
accused, who returned. She followed the fourth accused to "where
was returning to". She observed him
"coming to the place where the first accused was
killing the deceased. When I came there I saw the fourth accused
the sword. I saw him arrive at the place where the first
accused and some others were hitting the deceased. The others were
the third accused and the . second accused."
She testified that the fourth accused was trying to hit
the prone deceased with the sword, but she caught hold of his wrist
him doing so. The fourth accused asked the third
accused to assist him by hitting 'Masupang, but the third accused
"No, we have finished him". It was then that
the assailants desisted and they departed, the third accused blowing
Rethabile Leferefere testified that when the fourth
accused arrived at the party, he bore a cardigan, which was seemingly
around something. When the first accused suddenly arrived on
the scene, he passed the witness hurriedly, without greeting him,
a stick in one hand with his blanket wrapped around the other
arm. Rethabile then observed the third accused moving behind the
where the deceased stood. The witness was alerted and moved to
a position to see behind the house, in time to observe the assault
upon the deceased by the first, second and third accused. The witness
tried to intervene, but at that stage the fourth accused arrived
the scene, clutching a sword, and chased him away, to a point where
the witness could not observe the assault on the deceased.
The fourth accused asked Rethabile why he was attempting
to restrain the first accused. It was at that stage that 'Masupang
and wrestled for possession of the sword from the fourth
accused. The witness testified that he then "went to where the
accused and others were. I was going to intervene. They were
still belabouring the deceased, the first accused, the second accused
and the third accused." He went back to the house to get a stick
to intervene. "On my way", he said, "I passed
'Masupang and the fourth accused struggling over the sword, a little
where they had earlier been". The witness fetched a
stick and returned. He was but ten paces from the first accused, the
accused and the third accused, when they desisted in the
assault and went away, one blowing a whistle. 'Masupang and the
were "inside the yard near the house". He
"When the others left 'Masupang left the fourth
accused alone and he went downwards to where the others were and they
together. He was still carrying the sword."
Rethabile testified that he approached the deceased and
placed him in the shade of the house, when he expired almost
The doctor who conducted the post-mortem examination
observed "lashes under left armpit and left shoulder, small
head, right side, two small graze wounds right arm".
On examination of the skull he found, "impression fracture
bloodclots". He opined that the cause of death was "brain
damage". Paragraph 8 of the post-mortem report form, headed
"Remarks", is not completed at all. Neither are paragraphs
13 to 21. Strangely enough, with regard to paragraph 12, the
entered "chest no rib fractures", which to me suggests that
the doctor possibly expected to find fractures of the
The witness who identified the body at the post-mortem
examination testified to observing a wound on the deceased's head.
another at the back of the head, and a wound on the left
thigh near the knee. In particular he observed that, "All over
he was bruised". Again, a police officer observed that,
apart from the open wound on the head, the deceased was "bruised
at the back of the head". It was not possible to call the doctor
to give evidence, as he has left the country. I consider the
post-mortem report to be somewhat unsatisfactory. The learned Senior
Crown Counsel Mr. Thetsane refers to the case of Tsomela v R
(1), where Cotran J. (as he then was) held that the lack of medical
evidence, or inconclusive medical evidence, as to the cause
does not preclude the court from making a finding thereon on the
basis of evidence aliunde. But that case can be distinguished,
here the cause of death has been given, though somewhat tersely, in
layman's language, as "Brain damage". One can say
mortem report is inconsistent with the other evidence.
safer position, which I adopt, is that the prosecution
continued assault is inconsistent with the post-mortem
report. Clearly the assault upon the deceased must have been, as
testified, of the briefest duration.
Both accused remained silent in their defence. While
there were contradictions in the prosecution evidence, the witnesses
completely consistent as to the role played by the first
accused. While there is the inconsistency as to the proximity of the
accused, to the assault upon the deceased, there is no
inconsistency whatever as to the role played by him. Considering
the lapse of time involved, three years and ten months,
inconsistency is inevitable. I find the three eyewitnesses o be
impressive witnesses and I accept their evidence.
As to the role played by the fourth accused, I must, in
his favour, accept that the struggle for possession of the sword took
at some short distance removed from the assault on the
deceased, rather than beside the deceased. Nonetheless, here is the
of a guest at a stokfel, arriving apparently unarmed,
subsequently producing, of all things, a sword. The sword was
produced at the
trial, having been surrendered by the fourth accused
to the police when questioned thereupon. It is a "homemade"
some 18 inches in blade, sharp and very pointed.
To be a socius criminis, the accused must in some way
make common cause with the actual perpetrator and thus participate in
(R v Motaung (1961)2 SA 209) . Whether the fourth
accused was one pace or more from the prone deceased, the possession
of the sword, 'Masupang's
courageous struggle with him for possession
thereof, his calling to the third accused for assistance, and his
in company with the other accused, in particular
a jubilant third accused, all point inevitably to his association and
with his fellow accused.
The fourth accused's presence at the scene cannot by any
stretch of imagination be said to constitute a mere failure to
prevent the commission of the crime. He was present at a
distance where he could physically assist the assailants if necessary
there was clear intention on his part to do so. Further, his
struggle with 'Masupang in effect prevented her, in her preoccupation
with wresting the sword from him, from restraining the other
assailants, had she wished to do so. Again there can be no doubt that
his efforts while brandishing a sword, can only have encouraged the
others in their assault upon the deceased.
The remaining issue is one of intent. The evidence
points to pre-meditation, a pre-conceived plan to assault the
deceased. There was
a suggestion made in cross-examination by the
learned Legal Aid Counsel Mr. Moorosi, to Gerard Mpela and Rethabile
the deceased had assaulted the third accused at the
party, and that the first accused had sprung to the latter's defence.
was promptly refuted by the prosecution witnesses, and
there is simply no evidence of such assault before the court.
that the second accused had informed her that the
deceased had insulted him some months previously. That may suggest a
hardly a defence for the accuseds before the court. The
accuseds have remained silent, and the question of the motive for
and senseless killing must remain unresolved.
That does not affect intent. Premeditation there may
have been initially, but the actual intent can only be judged by the
ultimate actions of the accused. Though some evidence of
premeditation is there, and though the fourth accused produced an
lethal weapon, I am not satisfied beyond reasonable doubt
that either he or the first accused intended to kill the deceased. I
however see how the first accused in a joint assault, with the
other accuseds upon the deceased, with heavy lebetlela sticks and
even a knobkerrie, could not forsee at least the possibility of death
resulting to the deceased. There is the medical evidence that
deceased was struck but once in the head, but there is the nature of
the weapons used, the remark by the third accused that "we
finished him", and the jubilation thereafter. It may be, as Mr.
Moorosi suggests, that 'finished' meant nothing more than
but such incapacitation must, if anything,
indicate that the first accused subjectively
possibility of death resulting to the deceased and was
nonetheless reckless thereto.
As to the fourth accused, he witnessed the fatal assault
and wished to take part therein, with a weapon even more deadly than
possessed by the other assailants. He was but a few paces from
the actual assault, in a position to render physical aid to the
and, as I have said, clearly intending to do so. Indeed,
struggling with 'Masupang, as I have said, he thus engaged her
and prevented her, had she wished, from restraining any of
the other three assailants, thus clearly aiding and abetting the
of the offence. Again, he only desisted in his
efforts when advised that the deceased was "finished".
'Masupang was obviously alarmed at the assault, to the extent that
she was inspired to display great courage. In all the circumstances I
cannot but see that the fourth accused in turn subjectively
the possibility of death resulting to the deceased and was
nonetheless reckless as to such.
I am thus satisfied beyond reasonable doubt that both
the accused in this trial subjectively foresaw such possibility, but
nonetheless. The Assessors agree with my findings.
I find both accused guilty of murder as charged and
convict them accordingly.
Delivered at Quthing this 23rd day of September, 1989.
B.P. CULLINAN CHIEF JUSTICE
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