IN THE HIGH COURT OF LESOTHO
the matter of :
MOZWANDILE RANKALI PHELESELE RANKALI MOFEREFERE RANKALI
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla in
the 20th day of November 1989.
The four accused named above are charged with the murder
of Mamotjejoa Nokotjoa who died on 1st March 1989 following assaults
caused by sticks wielded by all the accused and a knife used
by accused number two.
The entire preparatory examination record was admitted
on behalf of all the accused by their counsel. It was conceded that
exist between some of the depositions in the P.E.
and the brief that the accused's counsel holds. However the court
by the accused's counsel that these discrepencies would
not affect the tenor of the case.
The evidence of the following witnesses at P.E. was
dispensed with as unnecessary for the determination of this case:-
P.W.5 Mamohlomi Rankali at page 7 of the P.E. P.W.7
Simon Nokotjoa at page 9 of the P.E. P.W.8 Tokelo Sofonia at
page 10 of the
P.W.9 Detective/Tpr Moqhobai at page 11 of the P.E.
P.W.10 D/Tpr Letsoepa at page 12 of the P.E. and
P.W.l1 Tpr Possa at page 12 of the P.E. record.
The court was asked to consider as relevant the P.E.
depositions of :-
P.W.I Dr Pelletier
P.W.2 Lieketseng Rankali
P.W.3 Mamophoiwilo Nongotjoa
P.W.4 Mamokhatla Molotjoa
P.W.6 Mamaoala Nongotjoa and
These depositions were accepted by the crown read into
the recording machine and made part of the instant proceedings.
P.W.1's testimony at P.E. was that he examined the dead
body of the deceased and formed the opinion that death had occurred
before the examination. He formed the opinion that death
resulted from a massive skull fracture behind the left ear. This
resulted in brain damage. P.W.1 also observed numerous
other-injuries the most serious of which was a stab wound on the left
which had collapsed. The head injuries were caused by a blunt
object while the one on the collapsed lungs-was caused by a
P.W.2 is 12 years old. Having been warned to tell the
truth at P.E. she related her story which showed that three of the
are related to her. Accused number 2 is her father. Accused
number 1 is her father's brother while accused number 3 is her
elder brother. Accused 4 is a fellow villager.
P.W.2 attends school at Matobeng and is in class five.
One day while-P.W.2 was at school she fell ill. Her
teacher-carried her into a class-room. Her fellow pupils were sent
to fetch her
mother from home. The
mother came and carried P.W.2 home where she was made to
In her sleep P.W.2 saw the deceased and one Thembi
standing before her and telling her to go with them to the mountain.
In this vision
the deceased was not wearing any shoes nor anything on
her head. Thembi was wearing a dark blanket and an ugly hat. P.W.1
of the two who she says were wearing ugly dark clothes.
She told her parents about this incident but was not certain if they
seen what she saw in their presence.
On the following day this vision occurred again to P.W.2
who saw the deceased wearing a dark dress, no hat, no shoes but this
carrying a knobkerrie while one Ntombazana Nokotjoa was carrying
a black bucket full of black water. One of the characters in P.W.1's
vision was carrying a stick used for stirring mealie pap. She drew
water from the bucket and poured it on P.W.1's face.
These characters asked P.W.2 to go with them to the
mountain. During the day they disappeared.
P.W.2 heard during the day that the deceased had died
and thereafter she felt better.
She was never sent for any medical treatment. She took
some time before going back to school because she couldn't walk as
P.W.3 testified at P.E. that the deceased was her aunt.
This witness was at her home on 1st March 1989 when accused 1 called
shouting that a mysterious occurrence should be seen by all.
When P.W.3 came to Mathongoane's home she heard P.W.2 crying and
Mamotjejoa the deceased was killing her. Accused 1 then asked
that Edward the chief's secretary should detail messengers to go and
call the deceased. The messengers went but came back shortly saying
the deceased refused to come along with them because on a previous
when she had been called to Abraham's place in similar
circumstances she barely managed to escape with her life.
Accused 1 then said he was going 0tn fetch the deceased
himself. Accused 1 was carrying a timber stick. He came to the
held her by hand and told her to come along with him to
Mathongoane's. He also asked if she didn't hear that she had been
P.W.3 heard the deceased say that she was afraid because she
had heard her name being mentioned apparently by people who had
at Mathongoane's which is only about 70 paces away from the
deceased's home. Then accused 1 hit the deceased with the stick on
the head. Accused 1's mother went to stop him from assaulting the
deceased, and urged that resort should be had to the law. The
deceased also said it would be advisable to have a Sesotho doctor
called in order to smell out whoever was bewitching the child P.W.2.
She also told accused 1 that she knew nothing about what was ailing
P.W.2 and was not responsible for it.
Then accused 2 came to his house and entered it after
dismounting from his horse and inquired what the matter was. He came
a timber stick and made for the deceased's home. When
the deceased saw him she ran into her house. Accused 2 roughly
door and forced his entry.
Accused 3 and 1 also entered following accused 2 in that
order. The accused deny that Thonkozile stopped Mamohlomi when the
went to stop the assault on the deceased.
P.W.3 also testified that after the stick clicks had
stopped the accused came out of the house where the deceased had
but accused 2 on coming to the door way took out a
knife, opened it with his teeth and turned back into the deceased's
is at this stage that P.W.3 ran to her own home.
P.W.4 testified at P.E. that on 1st March 1989 she
was at her home when headman Edward's messengers
arrived. These were Banbilitje Nokotjoa, accused 4 Seabata Makeka and
These messengers were sent to the deceased who is
P.W.4's mother-in-law. The messengers told the deceased that P.W.2
the deceased's name, whereupon the deceased suggested
that she would rather go if summoned by Chief David for she felt
she was not used to the family where she was being called
to. P.W.4 testified that the deceased said she was afraid for her
because she nearly lost it previously when she complied
with a similar command. Then accused 1 came and hit the deceased
the stick on the head. Banbilitje reprimanded him for
assaulting a person at her own home. The accused's mother stopped
Thokozile said the mother should have complied with the
suggestion that she was to stay at her home for Thokozile wanted her
to finish the deceased off. This is denied by the accused.
P.W.4's evidence corroborates that of P.W.3 in all
material respects. She testified at P.E. that the deceased suggested
that a Sesotho
doctor be called in order to determine if she was the
one who was responsible for P.W.2's torment.
Then accused 2 and 3 arrived at the house where the
child was kept. They dismounted their horses and after a short
for the deceased's home. The deceased seeing them
approach ran into her son's house.
Accused 2 told her to open and said she was a devil. He
forced the door open whereupon accused 1 entered after him followed
3. The door closed behind those of the accused who were
in that house. Then P.W.4 heard the deceased cry amidst sounds of
The door opened to let accused 4 in and closed behind him
whereupon further sounds of sticks were heard.
Thereafter the four accused came out but accused 2 while
at the foreground opened his knife and went back into the house where
stabbed the deceased and came out.
P.W.4 found a pool of blood around where the deceased
was lying. The deceased had wounds on the body and fingers. Each of
was armed with a timber stick similar to the ones
observed before Court.
P.W.6's evidence is to a large measure the same as that
of P.W.3 and P.W.4. She also testified at P.E. that the deceased
Thongozile who had said the deceased should go and listen to
P.W.2's utterances, that she was afraid to go there because accused
had already assaulted her.
P.W.6 also said when the accused came out after
assaulting the deceased Thongozile asked them whether they had killed
the witch and
said that they should not leave the witch alive. She
also testified in the court below that no people came to the
during the assaults and that afterwards the
deceased was left lying there.
P.W.12 testified that three of the accused are his
uncle's sons. The deceased was P.W.12's younger brother's wife. The
was about 65 years old.
In the afternoon of the fateful day P.W.12 heard accused
1 shouting and saying people should come and see an incident at
home. Mathongoane is accused 1's father.
P.W.12 went to that place and found P.W.2 who rose and
ran towards the door shouting and crying "Mamohlejoa where do
Accused 1 complained to P.W.12 that the deceased was
refusing to come and hear what P.W.2 was saying.
P.W.12 advised accused 1 to ask Edward the chief's
secretary who performs the chief's duties in the absence of the
latter to order
that the deceased be called. Edward then sent out
the messengers referred to earlier. The messengers came back without
P.W.12 then advised accused 1 to take the matter to
court. But accused 1 said he was personally going to fetch the
mother tried to stop him but he turned a deaf ear to
Accused 1 is said to have been very angry when he went
to the deceased. P.W.12 followed him to the deceased 's home. On
there accused 1 said to the deceased "'Mamohlejoa lets
go there" but she refused. Then accused 1 caught hold of her
and pulled her but she escaped. Then he delivered a blow with
a stick. The blow landed on the hand with which the deceased was
protecting her head. Accused 1 said again that she should come along
with him but the deceased once more refused.
P.W.12 took the deceased into one of her huts and closed
her in there. But her daughter-in-law opened the door and said
get out, I want you to die here at your home."
Accused 1 asked her to go with him and when she refused he hit her on
with a stick and she bled. P.W.12's attempts At saving the
deceased were thwarted by Mamaoala who kept pulling her out saying
should rather die in her own home.
Then the other accused arrived in the order referred to
above. P.W.12's story lends support to that given by P.W.4 and 6.
said that accused 2 unclasped his knife and went back into
the house when all others had come out except the deceased. When
2 came out later P.W.12 saw that the brown okapi knife that
accused 2 was carrying was blond-stained. Acccused 2 then collected
two pieces of his stick, cleaned the knife by pulling it against his
fingers, clasped it and went away.
Accused 1 gave his evidence under oath. He is aged 28
and is married with two children.
Accused one told the court that he heard the evidence
saying he had assaulted the deceased and does not deny it;.
He further said that P.W.2 fell ill and that she
complained that the deceased was the cause of her illness. It is
common cause that
P.W.2 is accused 1's niece.
Accused 1 said this was not the first time that a
complaint was raised about the deceased's causing
The accused remembered an incident in which one
Limakatso Mokhethi was involved. It appears that Limakatso
complained that the deceased
had caused lightening to strike her.
However accused 1 was quick to bring to the Court's
attention that he was not present when the alleged incident took
place. He only
got to know about it through letters he received from
home in Lesotho while he was at work in the Republic of South Africa.
accused 1 acknowledged that he hadn't the personal knowledge of
He went further to inform the Court of another incident
which involved the deceased's witchcraft practices.
He told the court that a daughter of one of his brothers
vanished in water. Men set about looking for the child. Accused 1
At the end of the fruitless search when the search party
returned home the deceased asked whether they had secured that child
then told no, she said the child would never surface until and
unless its parents had come home from Durban. Indeed the child
appeared when the parents arrived. The accused said that this
incident made him feel angry with the deceased for it became clear
him the deceased had caused the child's disappearance.
Accused one said he believed that the deceased was
responsible for the disappearance of the child and furnishes a rather
for so believing namely that the deceased when
relating her story did not
sit down but faced away from the people she was
addressing as she stood at the door.
The other instance he related concerning the deceased's
witchcraft involved the news the accused received from Thembi's child
granddaughter of P.W.4 'Mamokhatla. This child told accused 1
that he had been scarified under foot. The accused said that he
that he had been scarified while he was at the mines. He
learnt from this child when he came home that the deceased had sent
from home to the mines in the Republic to scarify him under font.
He did not feel when the scarification took place nor did he the
child effect it. He did nothing about this incident but told the
court that to date hie feet are rotten underneath.
On the day of the instant incident accused 1 was at
home, He testified that he was present in the house when P.W.2
she was seeing the deceased. Accused 1 did not see
the deceased though, nor did he hear her speak to P.W.2 who claimed
was saying. she should get ready to company her to the
mountain with those dressed in ugly dark clothes like the deceased's.
Accused 1 then called people to come and hear whet P.W.2
was saying about the deceased. Many people came. Accused 1 estimated
they could come to 60 in number. The village headman was
represented at this gathering by Edward 'Muso. Edward then sent
to go and call the deceased to the place where P.W.2 was
complaining about her. The deceased refused to come. Accused 1
to go and fetch the deceased. He told the chief's
representative thus. He said he was not in a happy mood when he
intention to go and fetch the deceased. He said he was
Accused 1 came to the deceased who was sitting outside
her house. He asked her to come along with him to hear for herself
said about her. The deceased refused to coma saying she
didn't know how to undo but could only do.
Significantly none of the crown witnesses who were
present at this stage of the events made mention of what accused 1
claims the deceased
said concerning this implicit admission by the
deceased that she had in fact bewitched P.W.2 but was unable to undo
the spells cast
in bewitching her.
Accused 1 said it was immediately after the deceased
uttered these words that he hit her with the stick. He denied that
told him that it would be better if a Sesotho doctor
were called to fathom if she was responsible for the child's
troubles. I may
just indicate that I reject accused l's version in
favour of the crown's not only in this respect but also reject
accused 1's testimony
to the effect that the deceased said she could
only do but not undo.
Accused 1 admits the evidence that P.W.12 tried at least
twice to stop him assaulting the deceased. He also told the court
own mother pleaded with him when he left home intending to
fetch the deceased and did not stop him when he was at the deceased's
home where it was P.W.12 who was trying to stop him assaulting the
deceased and no one else.
Accused 1 said that when P.W.12 stopped him he obliged
and went to accused 2's home. This home was estimated at between 40
paces. I accept the testimony therefore that a person standing
outside accused 2's place can see and hear all that takes place at
the deceased's house. Yet none of the people gathered at accused 2's
place came to the deceased's rescue even though they saw that
attacked first by accused 1 and later by all the accused facing the
charge for her murder.
It is accused 1 who reported to accused 2 about what
P.W.2 was saying. Accused 2 also satisfied himself by listening to
and hearing from her that the deceased was responsible for
Then accused 2 followed by accused 3 went to the
where they were later joined by accused 4.
The deceased ran away when she saw accused 1 and 2
approach her home.
They forced their entry behind the deceased who had
sought refuge in one hut and belaboured her.
Under cross-examination accused 1 said he knew the child
who scarified him under foot. He said he subsequently discovered
had scarified him; for the child told him she had been sent
by the deceased to scarify him. Accused 1 said he was not in the
of walking bare footed. The court took a look at the soles of
accused 1's feet and saw that he had some irregular horny
surrounded by some tender scars which are not
inconsistent with attempts at crudely removing those horny or
He also said in saying that the deceased should let
herself be killed in her premises he understood 'Mamaoala to mean
that she should
in fact be killed for accused 1 knew that 'Mamaoala
had difficulty begetting children and that the deceased was to blame
He was not aware though of any ill blood between the
deceased and 'Mamaoala. However he knew that the deceased had taken
It is regrettable that 'Mamaoala gave no evidence before
this court for she might have thrown some light about what she meant
the deceased should not take refuge into one of the houses
which according to one of the witnesses belonged to her son. Thus
possibility cannot be excluded that 'Mamaoala meant that the
deceased should rather get killed in her own hut than in
Accused 1 told me that he didn't see this panty he was
talking about. When asked who produced it he said a witch doctor
did. Asked if he himself saw it he said he never. Nor did
'Mamaoala complain to him that the deceased had taken her panty.
then from whom he heard that
'Mamaoala's panty had been taken by the deceased accused
1 failed to disclose the identity of his informer.
Accused 2's version is not different from accused 1's in
material respects. He said he believed what P.W.2 was saying even
she is only 12 years old and that she appeared to be mental.
Under cross-examination he said his intention in going
to the deceased's home was to call her to the child who was
He explained that he took a stick when going to call
this 65 year old lady because he had been to Khohlong carrying it.
Asked why he didn't leave the stick at his home via
where he had gone before heading for deceased's he said he hadn't
time to sit
at home moreover he didn't trust the deceased. He said
he didn't trust her because he had heard that she was a witch. He
conceded that the stick he was carrying could not prevent the
deceased bewitching him.
He denied though that when setting out for the deceased:
home he had already intended killing her. He was hard put to it to
he felt he should use the stick when even he alone would have
managed to overpower the deceased and if need be drag her bodily to
where she had been asked to go.
Asked why accused 2 did not pull the deceased he said
the deceased had gripped at the door and could not be moved. He
that he did not tell his counsel this piece of fresh
evidence in his defence. He admitted that he stabbed the deceased on
side of her rib cage after all others had left the deceased
and gone out. He said he was not aware that the stab wound was next
to the deceased's heart region. He said that all the other accused
had used sticks in assaulting the deceased and in such a manner
the sticks were even striking at each other.
Counsel for the crown pointed nut that the accused had
genuine belief in witchcraft. He asked the court to consider if
as laid down in the Homicide Amendment Proclamation
played any role in the instant case.
I was referred to Rex vs Biyana 1936 E D L 310 at
I was also referred to Mona & Another vs Rex
C of A (CRI) No. 3 of 87 (unreported) at 6. I also had occasion to
look at and consider S vs Fundakubi 1948(3) SA 810.
Mr. Mokhobo submitted that the attack was carried
out in the heat of passion. He drew attention to the fact that the
accused are related to
the deceased. He pointed out that the
deceased was belaboured with sticks because it was believed by the
accused that she had bewitched
P.W.2. Having considered the relevant
provisions of our law on provocation Mr. Mokhobo submitted
that the accused's acts do not bear any reasonable relationship with
the offence hence provocation cannot avail the accused.
In response Mr.Magutu made reference to the
famous New Salem Witches' Trials in 1692 which centred around the
shrieks of little girls. He pointed to the
irony in the cause for
this tragic death now under trial, that it resulted from the
hysterical shriek of the little girl Lieketseng
Mr. made an impassioned plea to the court to try to
get schooled in the meaning of witchcraft. He referred me to Witches
and Historians Interpretation of Salem at 2 where it is asked of
little girls who usually gave evidence resulting in the execution of
witches once convicted : "Had
the afflicted girls been lying, or
were they actually the victims of some sort of hysteria?"
It Appears that out of a close study of witchcraft in
Salem the following points emerge:
(a) Witchcraft was a phenomenon acted nut at village
level involving people on the lowest rung of the social ladder. The
case can boast of no different ones,
Unless one understands history sociology
andpsychology, full comprehension of the sincerityof
believers in witchcraft cannot be possible.
Irrationality in human behaviour continues,despite
the 20th Century's belief that it
is the golden age of reason. When considering that the
mass murder of six million Jews in Hitler's Germany was effected
years it becomes clear that our sense of reason and
justice calls for scepticism.
Indeed Mr. Magutu submitted that the dark aspects
of our social and cultural life are bound to make us blush. He
submitted that belief in witchcraft
will out-live science and
civilisation. Hence it behoves us to try to understand it. He
pointed out that the Church deals with
what ought to be and not with
what is. He further pointed nut that the body of sophistication
which regards religion as the basis
of our morality is itself
regarded as superstitious.
I was referred to the works of Roger Hart;
Witchcraft published by Wayland Publishers in London and
G.P. Putnam's Sons in New York. At page 63 referring to the year
the mile stone which marks the start of the combat of heresy
by the Holy office, Roger Hart says
"From that time until its decline in the late
1600's and early 1700's, the number of executions for witchcraft
reached the appalling
total of 100,000. Of these only 5000 or so took
place in the British Isles; most took place in Germany, which was
in Europe for the barbarity shown to its accused.
But France, Italy, Spain, Scandinavia and other parts of Europe, too,
have a record
of considerable injustice, prejudice and cruelty....
The history of witchcraft in France went back at least
to 1398, when the University of Paris had declared that the witches'
the devil was not merely superstitious magic, but religious
Mr. Magutu pointed out that although our rational
system is said to be based on science the last executions for
witchcraft in various parts
of the world occurred but a day or so ago
for hardly any can boast that the last execution of witches occurred
more than three hundred
ago. For instance the last official execution for
witchcraft in Germany was in 1775. The victim was Anna Maria
Schwagel at Kemptan
in Bavaria. The last execution for witchcraft in
France was in 1745. The victim was Father Lovis Debaraz at Lyons.
laws were repealed as late as 1787 in Austria. The
last execution for witchcraft in England occurred in 1684. The
victim was Alice
Holland in Exeter. But the last trial was in 1712
when Jane Wenham was reprieved after actually being convicted of
At page 106 Hart says of Scotland :
"Between 1573 and 1722 more than four thousand men,
women and children were executed for witchcraft north of the border.
no country did the witch-cult flourish more rankly, in no country
did the belief persist more lately, in no country did the persecution
of sorcery rage fiercer and the fires blaze brighter than in Scotland
At page 101 the learned author in reference to James 1
"He found that convictions were too often based on
unreliable children's evidence. The cases which brought about his
of heart included the Abingdon trials of 1605, where the
accusations were made by Anne Gunter, a girl of fourteen; the case of
Leicester Boy, John Smith, in 1618, whose testimony resulted in
nine hangings, and a similar case two years later, that of Bilson
Boy, William Perry. A contemporary wrote:
'The frequency of forged possessions (i.e. by devils)
wrought such alteration upon the judgment of King James that ... he
diffident of, and then flatly to deny, the workings of
witches and devils as mere falsehoods and delusions."
At page 108 Hart says
"Witch delusions persisted in Scotland until well
into the eighteenth century. In 1704, for example, the Pittenweem
on the east coast of Scotland provoked mob violence,
condoned by the authorities, resulting in the death of two accused
In June, 1727, Janet Home of Dornoch was burned for having
used her daughter as a flying horse. As late as 1773, the Associated
reaffirmed its belief in witchcraft, a fearful tribute
to the power of superstition only two hundred years ago."
Mr. Magutu thus submitted that the accused
wanted justice to be done because their child was claiming that the
deceased was responsible for
her hysteria. When the deceased refused
to turn up they decided to let her have a taste of what she had dosed
to their child. He
submitted that the accused were anxious to see
justice done village style and felt angered when the deceased refused
to comply with
the chief's order. Mr. Magutu accordingly asks
the court to acquit the accused of the capital offence.
I have heard all that was said for the accused by their
counsel. I am of the firm view that they have committed murder on a
woman. Their intention was borne out by the fact that
they approached the deceased armed with the lethal sticks.
I accordingly find them guilty of murder as charged. My
J U D G E.
ON EXTENUATING CIRCUMSTANCES
Much of what I was addressed on at the completion
of the defence case appeared to me to be intended to
as a basis for pleading that
extenuating circumstancesexist in this case.
Counsel for the accused contended that there was a
ge-r&dne belief by the accused that the deceased had caused the
had reduced P.M.2 to a state of hysteria and
hallucinations; and that thus extenuating circumstances were present.
Indeed the crown conceded that there was this genuine
belief by the accused that the deceased was responsible for P.W.2's
and unwholesome condition. In R vs Fundakubi and Others
1948(3) SA 810 (A.D.) there is no doubt that in some circumstances a
genuine belief in witchcraft extenuates. But in CRI. APP. No.
Piet Mdluli and Mandie Alfred Mdluli (unreported) at 6 Isaacs
J.A. in a judgment concurred in by Maisels P. and Mahomed J.A.
sitting in Swaziland said :
"The leading case in this Court is that of Mbombo
Dlamini and Others vs R 1970-76 Swaziland Law Reports p.
42 (Court of Appeal). In this case Schreiner, P. said (at page 43)
'It is wrong to believe that belief in witchcraft can
never constitute an extenuating circumstance but it is also wrong,
it would be merciful, to say that belief in witchcraft
always extenuates. It has been pointed out that there is broad
between murders resulting from a belief that the murdered
person or his family or property was by witchcraft, and murders where
is no belief that the person murdered has done any wrong at all
to the murderer, but where he is killed simply for the purpose of
providing parts of his body for strengthening or aggrandising some
other person, or group of persons. It is the unquestioned innocence
of the person murdered that makes the second class of case so
difficult to treat as extenuated. Of course there are other factors,
like unnecessary cruelty, that may affect the decision...'"
The learned Isaacs A.J. then proceeded as follows:
"In the case of R vs Fundakubi & Others
Schreiner J.A. (as he then was) said (at page 819)
'There may well be other cases in which it would be
proper for the jury or the Court to decline to bring in a finding of
circumstances even where the belief in witchcraft is
certainly present. The circumstances might, for instance, show that
consciously used unnecessary cruelty in bringing about
the death of the victim
In Mdluli above the Court of Appeal failed to
find any extenuating circumstances in respect of the 1st Apppelant.
But the Lesotho Court of Appeal in C of A (CRI) No 3 of
87 Mona and Mona vs Rex (unreported) Schutz P. sitting with
Mahomed and Trengove J J A. found that extenuating circumstances
existed and relying on Fundakubi at 819 said at 10:
"Not that great reliance can be placed on the
severity of punishment alone to get rid of the evil (murders
resulting from a belief
in witchcraft); but it may be suggested, if
any such suggestion is necessary, that the imposition of
suitably severe punishments
should be made the occasion, not so much
for expressions of sympathy with the accused, as for public
admonition or reprobation
of those criminally foolish persons who
allow themselves to be induced by utterly unfounded suspicions of
innocent persons to commit
the most savage murders."
Unlike in Mdluli where one of the appellants was
shown to be under the influence of the other, in the instant case
each of the accused appears to
have played his part voluntarily
without invitation by any other to join in the fatal assault.
Accused four was no relative of any of the accused or of
P.W.2 for that matter. He is portrayed in evidence a.s the man who
in last without any suggestion that his participation was
required and joined forces with the three others who were belabouring
His case stands in stark isolation therefore from
what might have influenced the other accused to carry
nut the barbaric assault on the deceased.
The attitude of the court should accordingly come nut in
the wash when coming to sentence. However it cannot be ignored that
refusal to obey the chief's order to come and be denounced
publicly as a witch fanned the pent up resentment against her.
The potential provocation the witchcraft had on the
minds of the accused is a factor that cannot be ignored. Clearly
so young, is already superstitious. She must have got
the belief in witchcraft from her parents. So the crown can
that the belief by the accused was not genuine. See
R vs Nathane LL.R. 64.
Schutz P. said in Mona at 11
"The retributive and deterrent aspects of sentence
must play an important part in this case."
Unlike in Nona where the victim on whom the deceased
were alleged to have practiced witchcraft had died from that practice
instant case the alleged victim of the deceased's evil spells
is still alive. In fact it seems to me that taking into account the
heat waves which charactirise the climate of this country around
early March and the fact that many people are said to have crowded
her parents' house, thus making the room atmos-phere intolerably
close, it is small wonder that P.W.2 was perspiring in the manner
described by accused 2 and also that she was even delirious.
I am not unmindful of Fundakubi at 819-820 where
it is said
".... the accused who believes in witchcraft may
become so enraged against the person who, he believes; has by the
methods destroyed the accused's children or other
close relatives, that he is really beside himself and acts with all
fury that he might be expected to show towards a
venomous snake that
had bitten his child."
The court is entitled to take a serious view of the fact
that there was an element of self help in this matter. The accused
to administer instant justice on the deceased despite the
suggestion by a parent of one of them and by P.M.12 that the matter
taken to court. It behoves the court therefore to record its
disapproval of the conduct whereby the aggrieved party takes the law
into his or her own hands.
It has been pointed out though that belief in witch
-craft is more than likely to outlive rationality and science. It is
warming that even before Lesotho had reached the
degree of sophiscation it has reached today King Moshoeshoe I had
belief in witchcraft could only perpetuate untold harm
in his nation and accordingly decreed that witches should be removed
their villages instead of being executed. This is heart warming
because even though Lesotho was labouring in darkness at that time
the civilised nations of the world were nonetheless executing witches
through use of Judicial machinery.
Regard being had to the social milieu of which the
accused and indeed the witnesses for the crown also are products and
the bona fide belief that the deceased had bewitched P.W.2
and the fact that it was common knowledge that the deceased was a
witch I find that
extenuating circumstances are present in this case.
Accused 1 is sentenced to 14 years' imprisonment.
Accused 2 is sentenced to 13 years' imprisonment.
Accused 3 is sentenced to 13 years' imprisonment.
Accused 4 is sentenced to 16 years' imprisonment.
My assessors agree.
JUDGE. 20th November, 1989.
For Crown : Mr. Mokhobo For Defence: Mr. Maqutu.
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