IN THE HIGH COURT OF LESOTHO In the matter of
ALBERT SEKOATI Held at Butha-Buthe
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
12th day of May, 1989.
In an indictment wherein the accused was jointly charged
with one Teboho Sekolokoto, for the murders of Tokonye Mohlahli and
Monyako, accused pleaded not guilty. His co-accused
tendered a plea of guilty to Culpable Homicide which was accepted by
hence separation of trials of the respective accused.
In the proceedings that ensued the defence admitted the
depositions of the following witnesses at the preparatory examination
P.W.2 Dr Seape
P.W.4 Eric Mahlatsi P.W.5 Maiketso Mohlahli
P.W.7 Dr E.T. Vos and later after he had been sworn
P.W.6 No. 1556 Warrant Officer Lethunya.
The depositions of P.W.2 showed that he examined P.W.1
on 7th January at the Butha-Buthe hospital. The patient had a
the head and along the back.
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The wounds were caused by either a blunt or a sharp
P.W.1 Puseletso Chabeli gave oral evidence before this
Court and pointed out an old scar of a wound which he testified he
during the occasion which gave birth to the instant
P.W.3's admitted evidence shows that while staying in
Butha-Buthe in January 1985 she was in love with one of the deceased
Mohlahli. She also knew the deceased 'Mamookho or 'Mabatho
who was. in love with P.W.1.
It appears that there were four people in all in P.W.1's
house. These were P.W.1 himself, then P.W.3 and the two deceased.
were sleeping in pairs, that is, P.W.1 with deceased
'Mamookho and P.W.3 with the deceased Tokonye.
Then according to P.W.3's evidence during the course of
the night accused came to the house where the four were sleeping and
the deceased 'Mabatho that he wanted his overcoat.
'Mabatho told accused that owing to the fact that things
were scattered about in that house and that the house was small and
that there were visitors in there, accused should come and
collect it in the morning.
Then accused went away only to come back later on in the
company of Teboho who kicked the door and inquired why 'Mamookho did
hand over the overcoat. 'Mamookho said it would be handed over
in the morning and Teboho was not satisfied with that answer
hence he asked why in the morning. Then P.W.1 stated
"because there were visitors" in there.
Thereupon Teboho asked whether the house was used for
sexual intercourse. Thereupon Teboho told P.W.1
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that he was used to calling him a thief and started
assaulting P.W.1 with open hands. P.W.1 threw Teboho outside and with
of 'Mabatho they closed the door.
P.W.3's evidence shows that P.W.1 and deceased
Tokonye then put on their trousers and that there was a
light in the house then.
Then accused said the occupants of the house should open
as he and his companion did not want to fight.
But this in my view was a mere ruse or strategem because
of what followed.
'Mabatho opened the door. Accused entered and rushed at
P.W.1 and put off the flame. Thereupon Teboho insulted the company
in the house and started stabbing P.W.3 with a knife on the
arm and proceeded to stab 'Mabatho too.
P.W.3 escaped from the fracas and on her way back later
she found that Tokonye was lying dead in a ditch and had bled from a
wound described by P.W.7 Dr Vos as sited on the upper side of
the chest measuring 3 cm in length. The wound according to P.W.7
from the cavity of the chest into the heart.
Dr Vos's evidence as to the female deceased's injuries
is that she had 3 stab wounds on the chest. They perforated the lung
right and led to extensive bleeding into the chest.
The cause of death in respect of Tokonye was a
stab-wound on the left upper chest. In respect of 'Mamookho it was
stab wound on upper
chest causing haematothorax. The admitted
evidence of P.W.4 Eric Mahlatsi showed that on the night in question
he had been on his
way from Pholosa night club when he heard some
cries seemingly of a man and a woman from a house nearby. P.W.4
stopped to find out
about these cries whereupon he saw accused and
Teboho coming from the
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house where the cries emanated. He called accused by
name and asked why he and his companion were running away from people
crying but was vouchsafed no answer. Instead they carried
P.W.4 saw P.W.1 running and heading for the house of
Pholosa. P.W.3 also came out running followed by a man who fell into
P.W.4 did not know this man but found that he was dead
when he came to him.
Police collected the woman who appeared dead and later
the man who was dead.
P.W.6's admitted evidence is that on 6-1-85 he met
accused and his companion. They were handed over to him by Sgt.
took accused and his companion to the Charge
Office where he cautioned them. They then made their statements when
the deaths. P.W.6 asked them to hand over their
knives regarding which they made some explanations where upon he
charged them with
the two murders.
P.W.1 whose evidence was led told the court that on
5-1-85 while asleep with his girl friend 'Mamookho and the two
and deceased Tokonye the accused arrived and knocked
at the door whereupon he woke 'Mamookho up and told her that accused
at the door for he identified him by the voice when he
said "basie basie koko" (koko is conventional way of
P.W.1 does not know what."basie basie" meant.
'Mamookho then replied when accused said he wanted an
over-coat. She said "Albert the way things are put all over the
here and the house is small and the fact that we have
visitors you had better come for the coat tomorrow morning."
Accused went away.
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After ten minutes he was back again but this time in the
company of Teboho. The coat was handed over to accused by 'Mamookho.
Then Teboho asked if that is a sexual intercourse house,
P.W.1 replied and told Teboho that those were not the
words he could use for the house was not his.
P.W.1 closed the door and dressed up putting on a pair
of trousers only.
When he tried to let the latch catch by pushing it up he
felt that the door could not swing to, and that it seemed that it was
pushed from outside.
P.W.1 pushed the door harder but could not equal the
countervailing force whereupon 'Mabatho came to his assistance; but
the door swung open. There and then accused stabbed P.W.1
with a knife on the forehead. The court was shown the scar as
by this witness.
Then P.W.1 grappled with accused and held fast the
accused's knife hand. This continued until someone shouting from
what was happening. Whereupon accused disengaged
himself and escaped into the night.
P.W.1 was cross-examined and weaknesses pointed out in
his testimony; namely that he pretended he did not know that Tokonye
love with Setompe, further that whereas at the preparatory
examination he said accused wanted his overcoat because he was
the following morning in this court he said he demanded it
because he was feeling cold. I find that these discrepancies do not
the case in the material respects.
Much was made of the fact that when coming to look for
the coat on both occasions accused was calm. But
as I indicated above his calmness was a sheer ploy that
was used to hide his actual intention; shown by the fact that his
this episode was to keep P.W.1 in a manner that he could not
help those whom Teboho was stabbing with a knife. Once given his
accused had neither lot nor part in P.W.1's house.
A suggestion was made in the cross-examination of P.W.1
that accused only came back in the company of Teboho because P.W.1
to accused that accused's overcoat was with Teboho. But
admitted evidence does not bear out the purport of this suggestion.
this suggestion is not borne out by the evidence, an
inference follows that Teboho was brought along by the accused for
of carrying out the unprovoked attack on the occupants of
I have in the earlier ruling dealt with further matters
which indicate that an inference that common purpose was the central
of this attack is not un- founded. I need not repeat them here.
I can only add that the fact that accused's overcoat
remained in P.W.1's house shows that accused is no stranger in that
P.W.1 testified and showed that accused left the over
coat when he had last come for beer-drinking some three days before.
Evidence also shows that P.W.3 was not only in love with
the deceased Tokonye with whom he was sleeping but was also in love
Teboho. Accused observed that P.W.3 was sleeping with Tokonye
before setting out to call Teboho to the house who started swearing
and; no doubt gripped by pangs of jealousy; accused the occupants of
using the house of P.W.1 as the place for sexual intercourse.
Deceased 'Mamookho lived with P.W.1 virtually as man and
wife. Accused worked with P.W.1. Hence when accused told those
he and Teboho despite his insults had not come to fight
the fears of P.W.1 and 'Mamookho were allayed. Clearly accused used
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familiarity with owners of the house to Teboho's
advantage. Both he and Teboho exploited this advantage.
The fact that when the door was opened accused and
Teboho attacked the occupants of the house must have taken those
occupants by complete
surprise. The manner in which accused and
Teboho carried out each his task so effectively shows that there was
not only a prior
plan but that there was also common purpose,
I have however looked at Snyman's Criminal Law where
the learned writer criticises the doctrine of common purpose : At 212
"This doctrine is unacceptable, being
irreconcilable with the general principles of our Criminal law, and
the liability of different
persons can be determined by applying the accepted
general principles ......"
" A further very fundamental objection to the
doctrine is that, because the common purpose was emphasised, the
causation in murder was either disregarded or
considerably watered down. It was sometimes overlooked that even a
person who had
the same intention as the murderer became a
co-perpetrator only if, apart from his intention, his individual
conduct amounted to
an act or acts which (possibly together with
other factors) caused the death."
With respect, I fail to understand the learned writer's
criticisms which at the barest level seem to ignore the importance of
of labour and speciality of function. The doctrine of
common purpose entails all the manifestations of division;' of labour
that in criminal acts such division is put to achieving unlawful
ends - An abuse in itself of the division of labour.
Accused has elected to exercise his right to remain
As properly submitted by counsel for the crown that
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accused's silence may be a factor taken into account in
de-termining if guilt has been proved beyond reasonable doubt I agree
Indeed the onus remains on the crown throughout to prove
the, case beyond a reasonable doubt. Accused's silence does not
crown of this onus.
It was thus submitted that P.W.4 indirectly
implicates the accused in that he saw him running away
from the place where there were cries which turned out to be at the
a man was found dead and an injured woman was also found
who later died.
I accept P.W.1's evidence that accused had stabbed
him with a knife, therefore the argument cannot stand
that he was playing a passive role in the attack or even that he was
to separate Teboho from P.W.1 as this is not borne out
anywhere in the record.
Evidence which is satisfactory shows that before the
light went out accused stabbed P.W.1 with a knife.
Direct testimony implicating accused in the commission
of the crime has been established.
I cannot accept the view expressed that accused was
playing any pacifying role at all because R vs Ndlhovu
1945 A.D. at 386 amply disapproves of speculation
"on possible existence of matters upon which there
is no evidence, or the existence of which cannot reasonably be
Moreover the submission that accused when he pinned down
P.W.1 and thus rendered him motionless while others were being
Teboho, was to ensure that he didn't fight with Teboho, is
baseless because nothing in the evidence shows that P.W.1 was armed
all. This submission would have had substance if accused was said
to have restrained Teboho from his murderous acts against the
of P.W.1's house. With
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regard to an accused person who chooses not to testify
Holmes J.A. in S vs Madlala 1969(2) SA. 637 says:
"An accused person who elects not to give evidence
runs a risk and the fact that
his failure to give evidence might be due, not to his
complicity in the offence charged, but to his complicity in a
lesser offence, will not enure to his benefit,"
I agree with this authority entirely.
I agree also with the authority in R vs. Mlambo1957(4) SA. 728 at 737 that
"If an assault is committed upon a person;
which causes death .... a very short time there.
after and no explanation is given of the nature of the
assault by the person within whose knowledge it...... lies, a
in drawing an inference that it was of such aggravated
nature that the assailant knew that .......... death might result."
For purposes of proving the case against the accused it
would never do to say he remained silent because his
role was minor.
As indicated in the evidence given accused was a
cunning actor in this crime for, but for his assurance
to 'Mamookho that he and his companion were not coming to fight
not have opened the door.
Why would accused, if he had no common purpose with
Teboho, help push the door which, it seems, P.W.1 and 'Mamookho could
the initial force exerted against it by Teboho?
Why would he after then obtaining his overcoat
comport himself in the manner he did, - heading for
P.W.1 and stabbing him with a knife if he did not associate
the acts of his companion? Having been given his coat
accused had no business to remain in P.W.1's premises, let alone
with a knife.
I find that the crime of murder has been proved
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against the accused and accordingly convict him as
Sentenced to 10 years' imprisonment.
J U D G E 12th May, 1989.
For Crown : Mr. Mokhobo For Defence : Mr.
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