IN THE HIGH COURT OF LESOTHO
In the Matter of:
Delivered by the Hon. Mr. Justice B.K. Molai on the
16th day of October, 1989.
The five (5) accused have pleaded not guilty to a charge
of murder framed in the following terms:
"In that upon or about the 14th day of July, 1987
and at or near Mantsonyane Ha Mafa in the district of Thaba-Tseka,
accused one or each or all of them, did unlawfully and
intentionally kill Mafa Matete."
It is, perhaps convenient to mention at this stage that
during the course of this trial Miss Moruthoane, Counsel for the
the admissions made by Mr. Maqutu who represents the
accused in this trial that the defence would not dispute the
deposition of Mohau
Matete who was P.W.8 at the proceedings of the
Preparatory Examination. In terms of the provisions of S. 273 of theCriminal Procedure and Evidence Act, 1981 the deposition of
Mohau Matete became evidence and it was unnecessary, therefore, to
call the deponent
2/ as a witness
as a witness in this trial.
By agreement of the parties the Post-moterm Examination
Report compiled by the medical doctor who had performed the autopsy
body of the deceased was handed in from the bar, as exhit "A".
It was likewise unnecessary to call the medical doctor to
a witness in this trial.
Seven witnesses were called to testify in support of the
Crown case. The five (5) accused were also called to give evidence
the witness box in their defence and another person viz. Monts'i
Lekhetho, testified in support of the defence evidence.
In as far as it is relevant, the evidence of P.W.7,
D/LSgt Mongaula, is to the effect that he is attached to the C.I.D.
On 15th July,
1987 he was still posted at Thaba-Tseka police station
when he received a certain report following which he procee-ded to
Ha Mafa. He was in the company of Trooper Ramakabatane
and one Gerard Tiela who was driving the vehicle in which they were
Both Tpr. Ramakabatane and Gerard Tiela were, however,
not called to testify in this trial.
According to P.W.7, he and his party were taken to a
sport where they found the dead body of the deceased. That was some
above the homestead of No.1 accused. On arrival at the spot
they found many people, including Mohau Matete and Police officers
of whom was Tpr. Khanyapa alias Silas from Marakabei
police post, already gathered at the scene.
P.W.7 examined the body of the deceased for injuries and
made notes, at the time, in his notebook from which he was, by
the parties, allowed to refresh his memory. The
The examination revealed that the deceased had sustained
multiple injuries on the head, jaw, hands and legs. Although he
told the court that the multiple wounds on the head of the
deceased were one on top of the other and he could not, therefore,
them P.W.7 later changed and said he actually noticed more than
ten (10) wounds on the head of the deceased.
According to P.W.7 the following articles were then
handed to him by Tpr.Khanyapa: A bereta .22 pistol serial number
with six (6) rounds of ammunition,two broken pieces
of a "Lebetlela" stick and a balaclava hat. He took
possession of the
articles and handed in the pistol and its rounds of
ammunition as exh 6. The two broken pieces of "Lebetlela"
also handed in as exhibit 2.
It is significant that although P.W.7 told the Court
that he had sent the pistol together with the round of ammunition to
for a balistic examination and a report was actually made,
neither the person who presumably examined the pistol was called as a
witness nor was the balistic report itself made available to this
Be that as it may, P.W.7 told the court that he then
conveyed the body of the deceased to Mantsonyane hospital from where
it was presumably
transported to the mortuary at Queen Elizebeth II
hospital for post-mortem examination. After the postmortem
took possession of the deceased's belongings which he
handed in together with the balaclava hat he had received from Tpr.
as exhibit 1, collectively. The deceased's belongings were
a pink Victoria blanket, a black Seanamarena
blanket, a brown bottle neck jersey, a spotted shirt, a
pair of trousers, a pair of grey socks and a brown pair of shoes.
The police officer looked for and found accused1,2 ,
3, 4 and 5. He arrested, cautioned and charged themwith the
murder of the deceased. In his evidence P.W.7 toldthe court that
although at the time of their arrest accused 2,3 and 4 handed to
him three "Kolits'ana" sticks which he tookinto police
custody for use as exhibits at the trial, he no longerremembered
which of the sticks was handed by each of the threeaccused. The
sticks were, therefore, simply handed in asexhibit 3 for the
first "Kolits'ana" stick, exhibit 4 for thesecond
"Kolits'ana" stick and exhibit 5 for the third
As it will become clear later in the course of this
judgment exhibits 3, 4 and 5 are the properties of accused 3, 2 and
It must, however, be mentioned that the police
officers have a duty to label with sufficient details of identity the
take into their custody for use as exhibits in
subsequent trials. For obvious reasons the importance of this duty
cannot be overemphasized.
According to him, Mohau Mafa Matete lived
at Macheseng in the area of Mants'onyane. The deceased was the son of
his elder brother.
On 15th July, 1987, and following a certain
report, he proceeded to Ha Mafa, still in the area of Mants'onyane,
where he found the
dead body of the deceased lying in the veld some
distance above the home of No. 1 accused. He noticed that the
deceased had sustained
multiple open wounds from the front to the
back of the head. There were also an open wound stretching from above
the left eye to
the temporal region, an open wound stretching from
below the left nostril to the left
5/ cheek and
cheek and an open wound on the left leg.
Mohau Matete further told the court that after the
police had examined it, he and other people accompanied the body of
from the scene of crime up to the mortuary at Queen
Elizabeth II hospital. The body sustained no further injuries whilst
it was being
transported from Mants'onyane Ha, Mafa to the mortuary.
As it has already been pointed out earlier, the
postmortem examination report was, by the consent of the
parties, handed in,
from the bar, as exhibit "A". According
to exhibit "A", the body of the deceased was identified by
before the medical doctor who performed the autopsy at
Queen Elizabeth II hospital on 20th July, 1987. This is confirmed by
Matee, P.W.8 at the preparatory examination proceedings, whose
deposition was, as mentioned earlier, admitted in evidence in terms
of the provisions of s.273 of the Criminal Procedure and Evidence
The external findings of the medical doctor were that
the deceased, a young African male aged 40-43 years and in good
sustained the following injuries: a laceration on the
right pariental scalp, a puncture wound on the left cheek and a
on the left cheek. According to the medical report,on
opening the skull a laceration was found on the right pariental
was also a depression on the left pariental area
resulting in a subdural haomatoma.
From these findings the medical doctor concluded that
death was due to intracranial bleeding resulting from the head
. 6/ It is worth
It is worth noting that according to exhibit "A"
medical doctor who performed the autopsy had observed
only three wounds on the head of the deceased. No mention was made
injuries on the other parts of the body e.g. the legs. This
is in conflict with the evidence of P.W.7 who told the court that he
noticed ten (10) or so open wounds on the head, and some other
injuries on the legs, of the deceased. The testimony of P.W.7 is,
this regard, corroborated by the unchallenged evidence of Mohau
Matete according to whom the deceased had open wounds on the legs
his head was full of many open wounds from the front to the back.
Indeed, No. 1 accused himself told the court that he alone
more than four or five blows on the deceased's head with exhibit 2
which even broke into peices in the process.
I am inclined to reject as false the medical report that
the deceased had sustained only three injuries on the head and find
the truth is in the evidence of P.W.7 corroborated by Mohau
Matete that the deceased had, in fact, sustained far more than three
open wounds on the head. I am fortified in this finding by the
evidence of No. 1 accused himself who as it has already been stated,
told the court that he had hit the deceased at least more than four
or five blows on the head with the stick - exhibit 2.
However, it seems to be common cause that the deceased
died at the spot where he was assaulted and sustained the head
am prepared, therefore, to accept the conclusion reached
by the medical doctor that the deceased died as a result of the head
whatever their number.
That being so, the salient question for the
determination of this court is whether or not the accused are the
persons who inflicted
the head injuries upon the deceased and,
7/ brought about
brought about his death. Very briefly stated, in this
regard the court heard the evidence of P.W.1, Mahlomola Semoli, who
that in 1986 two of his cattle went missing from his home
in the district of Mafeteng. They were a black cow and a black with
white spots ox. The cow was pregnant at the time of its
disappearance. He reported his loss to the police.
On the day in question, 14th July, 1987 and following a
certain information P.W.I proceeded to Marakabei police post. He was
company of P.W.2, Manyekenyane Semoli, and another person who
was, however, not called as a witness in this trial.
It is common cause that on the same day, 14th July,
1987, the deceased who was the Chief of No. 1 accused also came with
to the police post where the black with white spots ox was
found and identified by P.W.1 as one of his cattle that had gone
from his home. It is further common cause that the police at
Marakabei had on a previous occasion seized this ox together with a
donkey from No. 1 accused on a suspicion that they were stolen
property and, therefore, not in his lawful possession. When P.W.1
identified it as his property No. 1 accused also claimed the ox as
the property of his brother who had left it in his possession.
It is further common cause that on 14th July, 1987 only
the donkey was released to No. 1 accused. The ox remained in the
the police and No. 1 accused was instructed to go and
fetch his brother whom he had claimed to be the rightful owner of the
accused then returned home, driving the donkey.
According to P.W.1, whilst at the police post with No. 1
accused and the deceased, the latter had explained that when he first
it in the possession of the accused the ox was with
8/ a black cow.
a black cow. The cow had by then two calves. It was then
agreed that he (P.W. 1) and his companions could go with the deceased
Mants'onyane ha Mafa to see if they would identify the animal
alleged to be in the possession of No. 1 accused as his (P.W.1's)
cow, That was, however, denied by No. 1 accused who told the
court that after he and P.W.1 had disputed the ownership of the ox he
left the police post and the alleged explanation by the deceased was
never made in his presence.
It is significant that P.W.1 told the court that taking
into account the period when his cow, which was pregnant at the time,
missing from his home, it ought to have had two calves as
alleged by the deceased. It must, however, be remembered that in his
evidence, P.W.1 told the court that the cow went missing in 1986.
Assuming the correctness of his evidence in this regard It seems
unlikely that in 1987 the cow could have given birth to two
calves unless, of course, they were twins which fact P.W.I himself,
however, denied. This court is entitled to take a judicial notice
that a cow is pregnant for nine (9) months before giving birth
calf. It is unlikely, therefore, that from 1986 to 1987 P.W.1's cow
could nova given birth twice. In my view P.W.1 is not being
with the court on this point.
In any event, the important thing is that the accused
denied that the explanation made by the deceased was made in his
deceased is no more. For obvious reasons he could not
be called as a witness in this trial. Nor is there a suggestion
that the explanation allegedly made by the deceased was
a dying declaration and, therefore, admissible as an exception to the
of hearsay evidence. Even if the deceased had made the
explanation he is alleged to have made by P.W.1, I would disregard it
9/ evidence on
evidence on the grounds that it was not common cause
that the explanation was made by the deceased in the presence of No.
nor was it proved to have been a dying declaration.
Be that as it may, P.W.1 went on to testify that after
No. 1 accused had left the police post, presumably for his home at
Ha Mafa, he, P.W.2 and their companion also left the
police post in the company of the deceased for Mants'onyane Ha Mafa
were going to have a look at the black cow allegedly in
the possession of the accused. They all travelled in a public bus
disembarked next to Yeats' shop at Mants'onyane. They then
walked from the shop to the deceased's home at Ha Mafa where they
going to spend the night so as to be able to inspect No. 1
accused's stock on the following morning, 15th July, 1987. In fact
told the court that whilst they were on the way to Mants'onyana
the deceased had suggested that the best thing would be to inspect
the animals of other people in the village because if they were to go
directly to his animals No. 1 accused would fight them.
Again, the alleged suggestion was clearly made in the
absence of No. 1 accused by the deceased who, for obvious reasons,
in this trial. Nor is there evidence that when he made
the alleged suggestion the deceased was anticipating death. The
is, in my opinion, inadmissible hearsay evidence.
The evidence of P.W.1 is, in all material respects,
corroborated by that of P.W.2. Manyekenyane Semoli. I shall return to
later in the course of this judgment.
As it has been stated earlier, No. 1 accused gave
in his defence and his story as to what happened after
he had left Marakabei police post is slightly different. According to
10/ accused was
accused was holding in his hand a plastic rope and a
book in which the earmarks he and his brothers used on their animals
as he drove home his donkey. When he crossed a certain
river next to the village of Ha Mathew the deceased, P.W.1, P.W.2 and
companion, who was not called as a witness, also came to the
river. P.W.1 then approached him and in an unfriendly manner demanded
to see the plastic rope he was carrying in his hand. The accused
refused with the rope because of the unfriendly manner in which
demanded it. They then walked together for a distance of about eleven
(11) paces whilst P.W.1 was still insisting to have a
look at the
rope with which he(No.1 accused) refused. P.W.1 then suddenly
delivered a blow with his stick on the accused who warded
it off with
his hand. The blow landed on the earmarks book which dropped to the
ground in the process. No. 1 accused ran away leaving
the donkey and
the earmarks book at the river.
As he ran away, No. 1 accused was chased by P.W.1, P.W.2
and their companion. The accused then noticed No. 5 accused at the
a hillock. He ran to No. 5 accused from whom he borrowed a
stick with which to defend himself from his assailants. As No. 5
had no stick to lent to him, No. 1 accused left and and
continued running away. Me, however, called at the deceased and
to bring along his earmarks book from where it had dropped
at the river. The deceased,who, for reasons already mentioned could
testify before this court, replied that he did not see the book.
As he was running away, No. 1 accused was called by
Monts'i Lekhetho who said he should run to him for rescue. On arrival
Monts'i Lekbetho asked No. 1 accused why those men were
chasing him. Whilst he was explaining to Monts'i Lekhetho why he was
chased, P.W.1, P.W.2 and their companion approached them.
11/ They were followed
They were followed by the deceased. For fear that P.W.1
and his party would assault him, No.1 accused left Monts'i Lekhetho
some distance away from him.
Whilst Monts'i was talking to P.W.1, P.W.2 and their
companion in an attempt to pursuade them not to chase No.1 accused in
they were doing, No. 5 accused arrived driving the donkey
which No. 1 accused had left at the river. He passed next to where
Lekhetho was talking to P.W.1, P.W.2, their companion and the
deceased. He came to where he (No.1 accused) was standing some
Both No. 1 and No. 5 accused then drove the donkey in
the direction towards their home at Ha Mafa in the area of
When they were at a place called Thoteng, which is about
one mile from the village of Ha Mathew or the place where they had
Lekhetho talking to No. 1 accused's assailants and the
deceased, No. 1 and No. 5 accused noticed the deceased and the
P.W.1 and P.W.2 coming running straight after them.
P.W.1 and P.W. 2 were themselves running in the veld, clearly in an
intercept them from in front. When they realised that they
were being chased No. 1 and No. 5 accused left the donkey they had
driving and took to their heels. They outran their pursuers till
they arrived home in the village of Ha Mafa.
The evidence of No. 1 accused was, in all material
repects corroborated by that of No. 5 accused save that the latter
told the court
that on the afternoon of the day in question he was
returning from Yeats' shop in the area of Mants'onyane. He had
12/ been sent
been sent for shopping at the shop. Although he forgot
what articles he bought he had spent altogether an amount of M50 at
If it were true that No. 5 accused went to the shop
where he used the amount of M50 for shopping I find it strange that
he does not
remember even one of the articles he bought. He is, in my
view, not being honest with the court on this point.
According to him, when he approached the river on his
way home from the shop, No. 5 accused was following No.1 accused.
did not wish to walk home in the company of No. 1 accused,
he sat down on a stone before crossing the river. Whilst sitting on
stone, he noticed three strange men coming to, and walking with,
No.1 accused. . The deceased was then next to a bridge some distance
away. No. 1 accused walked for a distance of about ten (10)paces
together with the three strangers before one of them attacked him
with a stick.
No.5 accused denied, therefore, the evidence of No. 1
accused that he was approached by only P.W.1 with whom he walked for
distance (about 11 paces) before the latter attacked him with
the stick. However, No. 5 accused confirmed that when he was attacked
with the stick, No. 1 accused ran to him chased by the three
strangers. When he could not obtain a stick from him, No. 1 accused
continued running away pursued by the three strange men.
No.5 accused further confirmed the evidence of No. 1
accused that the latter was called by Monts'i Lekhetho who asked him
to run to
him for rescue. He (No. 5 accused) then went down to the
river and drove the donkey which No. 1 accused had left behind.
13/ Whilst he
Whislt he (N0.5 accused) was driving the donkey No. 1
accused's assailants passed him on the way and joined the deceased
who was walking
ahead of him. He continued driving the donkey until
he passed next to where NO. 1 accused's assailants and the deceased
to Monts'i Lekhetho. That was at a ridge next to the
village of Ha Mathew. No. 5 accused further told the court that he
only four (4) paces from where Monts'i Lekhetho was
standing and talking to No. 1 accused's assailants and the deceased.
no reason, therefore, why Monts'i Lekhetho could have
failed to notice him and the donkey. I shall return to the evidence
1 and No. 5 accused later in this judgment.
As it has already been stated earlier, the defence
called D.W. 2, Monts'i Lekhetho. to testify in support of the
evidence of No.1
and No.5 accused. D.W.2 told the court that at about
4 p.m. on the day in question , 14th July, 1987, he was coming from
of work and on his way home at the village of Ha Mathew
when he noticed No. 1 accused being chased by three strange men. He
at No.1 accused and asked him to run to him for rescue. The
accused obliged and informed him that his pursuers were chasing after
him for having allegedly stolen their cattle.
D.W.2 tried to pursuade No.1 accused to wait with him,
assuring him that he would tell his assailants to stop chasing him
No. 1 accused refused, saying he was afraid because
his pursuers were going in the company of the chief (deceased) who
had done nothing
to stop his assailants from chasing him. D.W.2 then
14/ advised No.1
advised No. 1 accused to run to the chief's place and
the latter complied.
When he was about 12 paces from him (D.W.2) No. 1
accused called at the deceased and asked him to bring along the
earmarks book which
had dropped at the time he was assaulted at the
river. The deceased, who, however, could not testify in this trial,
he had not seen the book, No. 1 accused was talking
about. The accused then continued on his way home and that was how he
parted with him on that day.
Thereafter the three strange men who had been chasing
No.1 accused came to him (D.W.2). They were P.W.1, P.W.2 and another
who had not given evidence in this trial. When he questioned
then as to why they were chasing after No. 1 accused P.W.1, P.W.2 and
their companion explained that the former had stolen their cattle.
D.W.2 advised them to go to the chief's place where the matter
be resolved rather than chase No. 1 accused in the veld. P.W.1, P.W.2
and their companion agreed and left in the direction
chief's place. Thereafter the deceased who had been following behind
also came to him but denied any personal knowledge
as to why No.1
accused's assailants were chasing him about.
The evidence of D.W.2 that when he talked to the
deceased P.W.1, P.W.2 and their companion had already passed gives a
lie to the evidence
of No. 1 and No.5 accused that the deceased was
in the company of P.W.1, P.W.2 and the other man when D.W.2 talked to
I must also say I find unconvincing the evidence of
D.W.2 that the deceased was as indifferent, as he wants this court to
to No. 1 accused, his own subject, being chased around
by P.W.1 and his companions.
15/ Be that as it
Be that as it may, D.W. 2 told the court that after he
had spoken to him, he then walked with the deceased to his house in
of Ha Mathew where he stayed and chatted with him for
about 15 minutes before the latter left and continued on his way home
Mafa. D.W.2 actually took the deceased half way and returned to
his house when they were outside the village of Ha Mathew.
D.W.2 categorically denied to have seen either No.5
accused or the donkey he was allegedly driving in the vicinity of Ha
the day in question. He told the court that if it were true
that No. 5 accused had passed driving a donkey next to the spot where
he was talking to No. 1 accused's assailants he would have definately
seen him and the donkey.
It must be borne in mind that P.W. 1 and P.W.2 had, on
one hand told the court that they had neither met nor assaulted No. 1
at the river on the day in question. On the other hand No. 1
and No. 5 accused claimed that P.W.1, P.W.2 and the third person had
met and assaulted No.1 accused at the river where he even left his
donkey which No.5 accused subsequently drove to the spot where
was allegedly talking to P.W.1 and his party. However, the testimony
of D.W.2 gives a lie to the evidence of both No.1 and
No. 5 accused
that the latter was seen driving the donkey or was, indeed, anywhere
in the vicinity of the village of Ha Mathew at
the material time.
There is also a discrepancy between the evidence of No.
1 accused and that of No. 5 accused as to what exactly
16/ happened when
happened when No. 1 accused came to the river. Whilst
No.1 accused told the court that he was approached by only P.W.I with
walked for some distance before he attacked him with a stick.
No. 5 accused testified that No. 1 accused was approached by all the
three strangers i.e. P.W.1, P.W.2 and their companion with whom ho
walked for some distance before he was attacked with a stick.
Having regard to this and other discrepancies in their
evidence I am not convinced that No. 1 accused, No.5 accused and
testifying to the truth when they said No. 1 accused was
assaulted or chased by P.W.1, P.W.2 and their companion at the river
to the village of Ha Mathew. In my view, the truth is in the
evidence of P.W.1 and P.W.2 that from Marakabei police post they and
the deceased boarded a bus in which they travelled to Yeats' shop at
Mantsonyane from where they walked to the village of Ha Mafa
neither met nor assaulted No. 1 accused in the manner described by
the defence evidence.
It is common cause that on the evening in question, 14th
July , 1987, No. 1 accused was seen arriving in the village of Ha
a while P.W.I,P.W.2 and their companion also arrived in
the village walking in the company of the deceased.
Now, returning to their evidence, P.W.1 and P.W.2 told
the court that it was their first time to come to the village of Ha
the evening of 14th July, 1987. As they entered the village
they were following a footpath allegedly leading to the home of the
in the village. When they passed behind certain kraals still
on the foot-path they were attacked by dogs. They ran away and, at
same time, struggled to chase away the
dogs. A group of men, amongst whom they clearly
identified No. 1 accused, then chased and threw stones at them.
As they were running away from their assailants and the
dogs, P.W.1 and P.W.2 heard three gun reports. They did not know who
the shots. They, however, had the occasion to look back and
notice that No. 1 accused and his party had caught hold of the
whom they were belabouring with sticks whilst he was lying
on the ground.
According to P.W.I and P.W.2, they and their companion
ran to a certain house in the village and reported what had happened
and the deceased. They received no help and had to proceed to
the chief's place where they reported to P.W.6, 'Mampoi Matete. This
is confirmed by P.W.6 who told the court that one of them even
claimed to have sustained a wound on the head whilst trying to come
to the rescue of the deceased. However, this was not mentioned by
P.W.1 and P.W.2. Assuming it is their companion who told P.W.6
he had been injured by the accused then he was not called to testify
in this trial and what he allegedly told P.W.6 is inadmissible
As they were shocked, by what had happened to them and
the deceased, P.W.I and his party decided to return immediately to
police post rather than spend a night in the village of Ha
Mafa. They slept in the open veld and reached the police post only on
the following day, 15th July , 1987. After reporting to the police
officers at Marakabei police post what had happened to them and
deceased, P.W.1 and his party returned to their home in the district
18/ The evidence of
The evidence of P.W.1 and P.W.2 that when the deceased
was assaulted by No. 1 accused and his party they ran to a certain
the village was, in a way confirmed by P.W.5 'Mapetlane
Petlane, who told the court that on the evening of 14th July, 1987
from a place called Ha Toka and on her way to her house in
the village of Thoteng, alias, Ha Mafa. She was carrying a window
on her head. When she crossed the footpath leading to the
chief's place she noticed a man who was wearing a pinkish blanket. He
carrying a yellowish plastic back and walking along the footpath.
As she crossed the footpath, P.W.5 was on the upper side
of No.1 accused's homestead which was down below. When she first
him, P.W.5 did not recognise who the man in a pinkish blanket
was. He was, however, coming up the footpath leading to the
place and could have passed No.1 accused's homestead by a
distance of about 200 yards.
After she had crossed the footpath, P.W.5 heard gun
reports from behind. She looked back and noticed that the man in a
was then running fast chased by dogs, No.1,2,3,4 and and
5 accused, all of whom she knew very well as they lived in the same
as she did. As the man in a pinkish blanket was running away
chased by the five accused and the dogs P.W.5 recognised the voice of
No. 1 accused shouting: "Strike him on the legs." The man
in a pink blanket and his pursuers were then running at the flat
stones above the home of No. 1 accused. She noticed the man in the
pinkish blanket falling to the ground and being belaboured with
sticks by No. 1,2,3,4 and 5 accused.
19/ It is
It is worth noting that although she claimed to have had
no difficulty in identifying P.W.2,3,4 and 5 as they lived in the
as she did, P.W.5 was unable to identify the man in the
pink blanket as the deceased, her own chief, who also lived in the
as she did. In my view, the basis on which P.W.5 relies
to have identified No,2, 3, 4 and 5 is unconvincing. It must also be
in mind that at the time she says she identified accused 2, 3,
4 and 5, P.W.5 was carrying a heavy load on her head and had just
heard gun reports. She was not, therefore, in the best position to
identify the accused as she claims she had. Although she may have
identified No. 1 accused by his voice, I am not prepared to accept
P.W.5's story that she positively Identified accused 2,3.4 and
she wants this court to believe.
Be that as it may, P.W.5 told the court that she got so
frightened by the sight of what No.1 accused and his party did to the
in a pink blanket that she immediately dropped down the window
frame she had been carrying on her head and ran away screaming. She
ran to the nearest house which belonged to one 'Mampote. She arrived
there simultaneously with three strange men (presumably P.W.I,
and their companion) who made a certain report. As they appeared very
frightened and many people in the village were also screaming,
did not follow what report was made by those three strange men. She,
however, learned from 'Mampote that the person whom No.
1 accused and
his party had been brutally assaulting was the deceased, Chief Mafa
Matete. She herself subsequently went with other
villagers to the
spot where she had seen No.1 accused and his party assaulting the man
in the pink blanket. She actually identified
the man as Chief Mafa
Matete who was then dead.
20/ Returning to
Returning to their evidence No. 1 and No. 5 accused told
the court that as they entered the village of Ha Mafa on the evening
July, 1987 it was towards sun set. They parted company next
to the home of P.W.3, 'Malehola Motsiba. On the instructions of No. 1
accused, NO. 5 accused went to his house to obtain a stick with which
to fight P.W.I, P.W.2 and their companion, if and when they
assault No. 1 accused at his home. On arrival at his house No. 5
accused found his grandfather, with whom he stayed not in.
afraid to return to No. 1 accused's place and so he stayed at his
house until his grandfather came home. On arrival his grandfather
told him that he had just repremanded No. 1 accused for assaulting
The grandfather was, however, not called as a witness in
this triaL What he is alleged to have told No.5 accused is therefore,
and of no evidential value. Be that as it may, No.5 accused
went on to tell the court that he went to No.1 accused's home long
his grandfather had come home. He found No.1 accused and other
accused at the home of No.1 accused who showed him exhibit "6"
which he had allegedly taken from the deceased.
No.5 accused denied, therefore, to have participated in
the assault on the deceased. This is confirmed by all the other
No.1 accused who told the court that after he had
parted with No.5 accused next to the home of P.W.3 'Malehola Motsiba,
he went straight
to his house where he found No.2, 3 and 4 accused
kraal ing animals. He told them that he had been assaulted by some
men who were
still following him. They should, therefore, get their
sticks and be prepared to assist him fight those men if and when they
to assault him at his house.
21/ Accused 2,....
Accused 2, 3 and 4 did get their sticks and waited in
front of the kraal next to the forecourt of his lower house. No.1
took his two sticks and went to wait at the kraal.
Shortly thereafter, No. 1 accused noticed the deceased,
P.W.1, P.W.2 and their companion appearing next to P.W.3's home on
side of his house, a distance of about 100 yards. They
were following the footpath leading to the chief's place. When they
his homestead the deceased, P.W.1, P.W.2 and their
companion left the footpath leading to the chief's place and followed
leading from the village spring straight to his house.
They passed on the upper side of his kraal and came to the forecourts
two houses. The deceased stood on the forecourt of the upper
house whilst P.W.1, P.W.2 and their companion stood on the
of the lower house.
No.1 accused had a thought that the deceased and his
party might be intending to inquire about something. He,therefore,
left his position
at the kraal and went to the forecourt of his lower
house. When he came to the forecourt, he heard the deceased saying to
P.W.2 and the third man : "Hei men, get hold of, and kill
that person.. If he overpowers you I shall come to your assistance"
or words to that effect.
As the deceased uttered those words P.W.1, P.W.2 and
their companion rolled their blankets around their arms and advanced
him (No. accused) with their sticks raised up. No.1 accused
also raised his stick and advanced towards P.W.1, P.W.2 and their
ready to fight back. When they were about 8 paces from each
other Mo. 1 accused's dogs, which had been lying on heap of straw
to the house, attacked P.W.1, P.W.2 and their
22/ and their
and their companion who then ran away chased by the
3 and 4 accused, who had been standing in front of the
kraal nextto forecourt of the lower house, then threw stones at
and chasedafter P.W.1, P.W.2 and their companion.
In their evidence accused 2, 3 and 4 told the court that
the sticks exhibits 4, 3 and 5 were, respectively, their properties.
confirmed the evidence of No.1 accused as to what happened when
he arrived home on the evening of 14th July, 1987. However, the
of No.3 accused, corroborated by that of No.2 and 4
accused, was that after taking their sticks on the instructions of
they went to wait behind the kraal. They, therefore,
gave a lie to the evidence of No.1 accused that they were standing
the kraal next to the forecourt of the lower house.
Accused 2,3 and 4 confirmed that whilst chasing P.W. 1
P.W.2 and their companion they heard gun reports. They did not know
fired those shots and continued chasing P.W.1 and his party.
They chased them until they were in the fields, more than 300 yards
away from the village. In fact it was when P.W.I and his party were
at a place called Lekhalong far away from the village, that No.2,3
4 returned to No.1 accused's house.
Although the evidence of No.5 accused that he went to
No.1 accused's house after accused 2,3 and 4 had returned from
and his party was confirmed by No. 3 and No.4 accused,
that was denied by No.2 accused who told the court that on their
No.1 accused's house they found No.5 accused already
with No.1 accused. if No.3, 4 and 5 were telling the truth then No.2
was obviously not telling the truth on this point or vice
23/ It is clear
It is clear from their evidence that the contention of
the accused is, firstly that No.5 accused took no part in the assault
the deceased or P.W.I, P.W.2 and their companion, secondly
that NO.2, 3 and 4 accused only assaulted or chased P.W.1 and his
but took no part in the assault on the deceased and thirdly
that P.W.I and his party could not have run to the house of 'Mampote
in the village of Ha Mafa.
The first and second contentions are basically questions
of identification. As regards the first contention it is significant
P.W.3 told the court that on the evening of 14th July, 1987 she
was outside her house collecting some dry cow dung from her kraal
when she noticed No.1 and No.5 accused passing next to her home. When
they came to his house No.1 accused was still with No.5 accused.
joined accused 2, 3 and 4. No.1 accused then instructed all the other
accused viz. No.2 3,4 and 5 accused to get their sticks
and stand in
readiness to fight some people who were coming to fight him.
According to P.W.3, No.1 accused even told accused
2-5 to stand in such a way that those people might not
be aware that they (accused 2-5) were going to fight. This is,
by the accused who, as it has already been pointed
out earlier, told the court that No.1 accused merely said the other
fight only in the effect of those people trying to
assault him at his home.
Be that as it May, P.W.3 went on to testify that in
compliance with his instructions all the other 4 accused obtained
sticks and stood
on the forecourt of No.1 accused's house whilst he
himself went to wait at his kraal. Shortly thereafter P.w.3 noticed
P.W.1, P.W.2 and another man also passing next to her
house. They were walking along the footpath leading to the chief's
place. When they were passing behind his kraals,still on
the footpath,No. 1 accused went to the three strange men and
a blow with a stick on one of them. To that extent the
evidence of P.W.3 confirms the evidence of P.W.6 who testified that
the three strange men had a wound on the head.
According to No.1 accused his dogs then attacked those
men who took to their heels. As they ran away those men were chased
accused who were throwing stones at them. The three strange
men ran across the mountain slope while the deceased ran up the
in the direction towards his home.
P.W.3 confirmed that as the three men were running away,
chased by the accused and the dogs, she heard gun reports. She did
ho had fired the shots. However, after she had heard the
gun shots P.W.3 noticed that all the five accused were then chasing
the deceased. As they were chasing him P.W.3 heard No.1 accused
shouting that the deceased should be struck on the legs.
They chased him till they went out of her view on the
upper side of No.1 accused's house. After a while all the accused
No.1 accused home.
P.W.3 denied, therefore, the accused's contentions that
No.5 accused did not participate in the assault on the three strange
the deceased. She further denied that No.2. 3 and 4 accused
assaulted only P.W.1, P.W.2 and their companion but not deceased. I
say I observed all the witnesses as they testified from the
witness box before this court. P.W.3 impressed
me as a truthful and more reliable witness than the
I have so far dealt with. I am prepared to accept her
The evidence ........
The evidence of P.W.3 was, in some material respects,
corroborated by that of P.W.4 Lineo Ranyali, who testified that her
slightly on the upper side of No.1 accused's house. On the
evening in question she was sitting on a stone outside her house.
she had heard gun reports she clearly saw the deceased falling
down as he was being assaulted with sticks by the accused who were
all chasing after him.
The evidence of P.W.4 was, however subjected to
criticism on the ground that, whereas in the Preparatory Examination
record she was
recorded as having told the presiding magistrate that
the fight between the accused and P.W.1 and his party had started on
of No.1 accused's house she has denied it before this
It is worth mentioning that P.W.4 is a young girl of
about 15 years of age. She appeared rather shy as she testified
before this court.
There is, in my view, the need to approach her
evidence with caution. For this reason I accept her evidence only in
as much as it
has been corroborated by that of P.W.3 who as it has
already been stated impressed me as a more reliable witness.
It is to be borne in mind that the assault on the
deceased took place just before sun set when vicibility was still
good. P.W.3 and
P.W.4 live in the same village as accused 2, 3, 4 and
5 do. They, therefore, know each other very well. That being so, it
me the question of mistaken identity of accused 2, 3, 4 and
5 by P.W.3 and P.W.4 is very unlikely. Indeed, the accused
told the court that they lived peacefully with P.W.3 and
P.W.4 in the village. They could not, therefore, advance any good
why the two witnesses would falsely implicate them in this
26/ Although in
Although in their third contention the accused wanted
this court to believe that P.W.1, P.W.2 and their companion were
chased to Lekhalong
which was far away from the village of Ha Mafa
and could not, therefore, have run to a house in that village, the
evidence of P.W.1
and P.W.2 was corroborated by that of P.W.5 that
they did run to the house of 'Mampote in the village of Wa Mafa.
Indeed, the evidence
of P.W.I and P.W.2 that they ran into the
village is in a way, corroborated by P.W.6 according to whom the two
witnesses did come
to her house and reported that the accused were
assaulting deceased. I see no sensible reason why P.W.I P.W.2. P.W.5
and P.W.6 would
all lie on this issue. In my view the evidence is
simply overwhelming against the accused. I accordingly reject their
story as false
and accept as the truth the version of P.W.1, P.H.2 .
P.W.5 and P.W.6 on this point.
It is again worth mentioning that as it is common cause
that the deceased and the accused live peacefully in the village, no
reason could be advanced why the accused would brutally assault
the deceased in the manner described by the evidence. In my view,
only sensible explanation is in the evidence of No.1 accused who told
the court that at the time his dogs and the
other accused started chasing P.W.I, P.W.2 and their
companion he was in
to join/the chase when he heard a gun report. He then looked
around and noticed that it was the deceased who was
using a firearm. He decided to attack the deceased in self-defence.
four (4) accused also told the court that they too heard
gun reports but decided to ignore them and continue chasing P.W.1,
and their companion.
27/ I must say
I must say I find this rather incredible. If they heard
gun reports, as I believe they did, a natural reaction for the other
was to stop chasing P.W.1 and his party and go to the assis
tance of No. 1 accused.
Although it was suggested, under cross-examination that
the accused were the persons who used the firearm which they
planted on the deceased who had in fact, no gun in his
possession on the day in question, it must be remembered that P.W.7
court that he had sent exhibit 6 to Makoanyane for a
balistic examination and a report was made. He also investigated from
section of the firearms about the person in whose name the
pistol, exhibit 6, was registered. Neither the balistic report nor
name of the person (if any was found) in whose name exhibit 6 was
registered were made available to this court. The only reasonable
inference to be drawn from failure to make available to the court all
this evidence is that it was not going to support the Crown
am, therefore, inclined to accept as the truth the evidence of No. 1
accused that it was the deceased who used the firearm
on 14th July,
There is, however, ample evidence which I am prepared to
accept that at the time the shots were fired the accused were
P.W.1,P.W.2 and their companion who were innocently walking
on the footpath leading to the chief's place. The accused were,
the first aggressors.
Granted that the accused were the first aggressors it
seems to me that, in all probabilities, the deceased fired the shots
them away so that they might refrain from their unlawful
on P.W.1, P.W.2 and their companion. That being so,
self-defence cannot avail the accused.
Even if I were wrong and it is held that, in the
circums-tances, self defence did avail the accused there is evidence
that, as he
was being chased by his assailants, the deceased was
away and was brutally assaulted with sticks even after
was fallen down and was lying helplessly on the ground.
The story of
NO.1 accused that as he ran away the deceased was moving
his arm backward as though he would shoot at him is simply
If it were the truth, a natural thing for No. 1 accused
to do would have been to hit the deceased on the arm that was
to shoot. But on his own mouth No. 1 accused told the
court that he aimed his blows on the deceased's head. There is no
my mind that as he ran away the deceased was not in any way
threatening the accused who, in my opinion, exceeded the bounds of
Considering the evidence as a whole, I am satisfied that
all the accused did participate in the brutal assault on the deceased
upon him multiple wounds on his head. The question I have
earlier posted, viz. whether or not the accused are
the persons who inflicted upon the deceased the head
injuries and, therefore, brought about his death, must be answered in
The next question that remains for the determination of
the court is whether, in assaulting the deceased as they did, the
had the requisite subjective intention to kill. In this
regard the evidence that the accused assaulted the deceased with
not just one but, multiple open wounds on his head
which is a vulnerable part of a human body must not be lost sight of.
the deceased in the manner described by
29/ the evidence
the evidence the accused were in my view, aware that
death was likely to occur. They, nonetheless, acted reckless of
whether or not
it did occur. That being so, it must be accepted that
the accused had the requisite subjective intention to kill at least
From the foregoing, it is obvious that the view that I
take is that all the accused have committed the offence against which
stand charged. I accordingly find them guilty of murder.
It must, however, be mentioned that only one of the
assessors agrees with this finding. The other assessor does not. The
the accused are guilty of murder is , therefore, mine
and that of only one of the assessors.
B.K. MOLAI JUDGE
16th October, 1989.
For the Crown : Miss Moruthoane
the Defence : Mr. Maqutu
Having found the accused guilty of murder, the court is
enjoined by S.296 of the Criminal Procedure and Evidence Act, 1981 to
the existence or otherwise of any factors tending to reduce the
moral blameworthiness of their act.
In this regard there was evidence that whilst at
Marakabei police post No. 1 accused and P.W.1 disputed the ownership
black with white spot ox. After the accused had left the
police post for his home village, P.W.1 and his party followed him to
village. They were going to inspect yet another animal which No.
1 accused claimed to be his property. I have found, on the evidence
of P.W.1 himself, that the animal could not possibly be his property.
There was also evidence that at the time P.W.1, P.W.2
and their companion were running away chased by the dogs. Nos. 2,3, 4
accused, the deceased fired gun shots. As it has been
mentioned in the course of my judgment, the deceased may have done so
to scare away the accused and stop them from unlawfully
assaulting P.W.1 and his companions. However,the accused may well
that the deceased was shooting to kill them i.e. he was
taking sides on behalf of P.W.1 and his party.
The cummulative effect of all these factors is bound to
have provocked the accused. Although it could not have reduced murder
lesser offence such provocation can properly be considered an
There is no evidence that the accused planned or
premeditated the death of the deceased. For this reason, I found
accused had intention to kill only in the legal sense.
The absence of premeditation of the deceased's death, is a factor
to reduce the moral blameworthiness of the accused's act.
In the result, I come to the conclusion that extenuating
circumstances do exist in this case. Consequently the proper verdict
the accused are guilty of murder with extenuating
Both my assessors agree.
S E N T E N C E
In mitigation of the accused's sentences the court was
invited to consider a number of factors. They were eloquently
by the defence counsel. There is, therefore, no need
to go over them again, save to mention that they were all taken into
especially the fact that accused 2, 3 and 5 are small boys,
of about 17 years or so, who have not previously served any term of
They, presumably, still entertain the fear of going to
gaol. If they were now sentenced to serve a long term of
2, 3 and 5 will, no doubt, come to realise that
our prisons are not concentration camps where people are tortured and
for we punish people by merely depriving them of their
liberty. Once within the four walls of our prisons people are given a
treatment. This may lead the young accused into a misconception
that prisons are built for people like themselves. They are certainly
There is also the danger that by sentencing them to long
terms of imprisonment accused 2, 3, and 5 are going to mix with
/ hard heartend
hard heartend criminals who will influence them
adversely so that when they come out of the prison the accused are
worse than when
they were sent there.
The court has also taken into account the fact that
accused 4 is an employee of No. 1 accused. It was not easy for him to
the instructions of No, 1 accused that he should take his
stick and fight P.W.1 and his party. However, accused 4 is a grown up
and ought to have told No.1 accused that his instructions were
unlawful. He did not do so.
Notwithstanding the fact that it considered the factors,
to which it was invited in mitigation of the accused's
sentence, the court could not turn a blind eye to the seriousness Of
against which the accused were convicted. It takes a diem
view of people who unlawfully deprive fellow humans of their lives.
is , therefore, the need to impose a sentence that will deter
the accused from a repetition of this sort of a thing. A sentence
that will serve as a lesson to people of accused's mind that the
courts of law do not encourage people to take the law into their
hands and kill other people. In the circumstances, the following
sentences are appropriate and the accused are accordingly sentenced.
Accused 1 : 10 years imprisonment
Accused 2 : 8 strokes with a light cane, to be
administered privately by a member
of the prison staff. Accused 3 : 8 strokes with a
light cane to be
of the prison staff..
Accused 4 : 8 years imprisonment.
Accused 5 ; 8 strokes with a light cane to be
administered privately by a member of the prison staff.
17th October. 1989.
For the Crown : Miss Moruthoane, For the Defence:
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