IN THE HIGH COURT OF LESOTHO
In the matter of :
V PHUMO PHUMO
Held at Quthing
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
17th day of August, l990.
The accused pleaded not guilty to the charge of murder
of Tsekele Phafoli whom the crown alleges the accused killed
and unlawfully on 29th
March 1987. The offence took place at Ha Khoro in the
The defence admitted the P.E. depositions of
P.W.1 Dr. Prempeh P.M.4 'Manneheng Khoete P.W.5 Moeuoe
Sebinane P.W.7 D/sgt. Khoele P.M.8 Lethusang HLalele
Exhibit A the post mortem report prepared by P.W.1 was
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The crown accepted admission of these depositions as
well as admission of exhibit A.
The admitted evidence of P.W.1 shows that the body of
the deceased was examined on 31st March 1987.
In the opinion of P.W.I the cause of death was fractured
skull and haemorrhagic shock. The fracture of the skull itself could
been caused by a blow with a heavy object. The other injuries
could have been caused by a sharp object. P.W.1 further indicated
that some other injuries could have been caused by a sharp object.
He also thought that the lacerations and abrasions were caused
through use of moderate force. The doctor indicated that the blunt
instrument used namely a stick must have been heavy.
The court has weighed exhibit 1 the stick before it and
is in no doubt that the doctor was correct in saying the stick used
been heavy because I found that it in fact is very heavy.
The deceased is said to have been 70 years of age and
P.W.1 thought as much. The deceased was described as of slender
frame of body.
The external appearances revealed multiple lacerations
of left upper arm and
forearm, abrasions of left wrist, laceration of left ear
and left post auricular region. There was a haematoma on left side
neck and post auricular region. The deceased's lungs are said
to have been congested.
Of all these injuries the accused in his evidence
revealed that he recollects causing only one which is behind the left
ear. He made
a demonstration of how he caused it but the force he
revealed was far from producing a heavy blow which in the opinion of
was accountable for the fracture of the skull.
The admitted evidence of P.W.4 shows that this witness
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in response to a scream that she heard she saw the
accused assaulting the deceased with a stick and further that at that
deceased was lying down.
While P.W.4 hurriedly made for Seabata's place to report
she saw P.W.3, P.W.2 and Seabata hurriedly making for the scene.
P.W.4 was far she did not hear the accused's reply to P.W.3's
question to him about why the accused was assaulting the deceased.
P.W.3 in her evidence fills this gap by supplying an
answer that the accused said he was assaulting the deceased because
he had blown
off the roof to his house. In this respect P.W.3 is in
a sense corroborated by D.W.3 (in this Court) who was P.W.6 Tamolo
D.W.3 supports the consistency of the accused's answer
to the question why the accused was assaulting the deceased. D.W.3
accused said D.W.3 should look at the walls of his house and
told him the deceased was responsible for blowing away those roofs.
Needless to say P.W.3's evidence as to the answer proffered by the
accused regarding this question was not denied in these proceedings.
Because this aspect of the matter was not challenged it seems to me
to be the only palpable reason why the accused assaulted the
An attempt was made to show that the assault occurred
because the deceased tried to intercept a donkey which had eaten some
from the accused's garden. It is said the donkey was
intercepted while being driven to the chief's place to be impounded
compensation from the deceased could be claimed on its
If this could be so, it is strange that at the time when
the assault was taking place and when the accused had an opportunity
the inquirers-more than one in number - could not tell them
It was argued that the accused when applying for bail he
did in fact indicate at paragraph 7 that he assaulted the
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deceased because of reasons he supplied today.
But at the time he was applying for bail it was months
after the event. He had by then long offered to the eye witnesses
upper most in his mind as justifying the assault, namely
that the deceased had blown off the roof from the walls of his house.
When he applied for bail the accused had had ample time
to formulate what his defence was going to be and he fabricated one.
therefore dismissed as an afterthought fabricated at the
stage he applied for bail and hopefully expected to hold sway in this
It is true that nobody saw when the fight started. But
there is evidence of some screams being heard around the time. P.W.2
P.W.3 went to the scene from a distance estimated as a kilometer
away. But D.W.3 who struck me as very honest and unbiased estimated
this distance at only 200 metres away. Knowing the usual
difficulties that ordinary Basotho women pose with regard to giving
estimations of distances it is not to be unexpected that
the distance was much shorter than they estimated,
D.W.2's evidence on the point tends to show that the
distance between these two points was less than 300 metre; which is
where he claims he was from the scene as he was standing
on the hill when he observed the stick fight between the accused and
But because his evidence was an absolute tissue of lies
there is not much point in taking any portions of it as corroborating
version. It is therefore rejected in its entirety. None of
the crown witnesses saw him at the scene where he said he came and
the accused from the deceased. The reliable defence witness
Tamo Qhala says D.W.2 is lying when he claims he came to remove the
accused from the deceased. He butressed his testimony by showing
that he would have seen D.W.2 if he removed the accused from the
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D.W.2 made a huge pretence of the fact that he left the
scene together with the accused. He said when he did so the deceased
up on his feet and talking. The accused with whom he claimed he
had left said the deceased was lying on the ground when he himself
last saw him as he left. In this regard the accused's version is in
agreement with the Crown's version. This sets D.W.2 alone as
One of the women who gave oral evidence said she was
able to see the hands of the deceased as he lay on the ground. None
of the deceased's
hands held anything. Had there been anything held
in the deceased's hands she would Have seen it. The fact that no
to the deceased was found anywhere near the scene
gives support to this woman's version which stands in stark contrast
to that of
D.W.2 who said when the deceased went down towards the
stream driving the donkey after unkraaling it he did not know if the
was holding anything but that when he came running to the
scene he saw that he was holding a stick with which he engaged the
in a stick fight. D.W.2's invention finally stands in stark
isolation by its falsehood when compared with the Crown version that
deceased's face was covered in blood, whereas D.W.2 who pretended he
came nearer to the deceased than anyone else and thus had an
advantage to observe him better said he saw no blood on the deceased
at all. The Crown version is that the deceased was unable to
thus he was carried from the scene in a blanket. D.W.2 pretends that
the deceased just walked away from the scene. D.W.3 denies
story and supports that of the Crown. Strangely the people that
D.W.2 claims he found at the scene saw no stick held by
yet D.W.2 insists he saw one.
In any case credible evidence shows that the accused's
alleged refrain from assaulting the deceased amounted to nothing else
of the interveners for the deceased because he
attacked those who intervened.
The accused claimed that during his fight with the
deceased the deceased hit him with a stick on the inner right wrist
with the result
that his stick even fell away.
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But this important aspect of the matter was not put to
the eye witnesses yet Schutz P. in C of A (CRI) 7 of 1989 Naro
Lefaso vs Rex (unreported) at 7 et seq said
"The need for the defence to put the salient parts
of the defence case to the relevant crown witnesses has been stressed
Court over and over again. One reason for putting the
defence version is to give the crown witnesses a chance to
counter it From an accused person's
point of view failure to reveal his version before he
gives evidence leads to the natural inference that he has concocted a
at the last minute."
The accused even assuming his story about the donkey to
be true strangely felt that he should take it to the chief -a
which he presumably embarked upon -to avoid bloodshed
yet when possibility of bloodshed loomed large he failed to proceed
chief to report who would, hopefully provide a remedy.
Even though he realised that the deceased had laid
helplessly on the ground after he had belaboured him the accused
either that evening or the following day to find out
how the deceased had fared.
His reason for making no attempt to secure the welfare
of the deceased on the day of the incident or report to the chief is
was going to see his wife who was in hospital. This is
strange because his initial plan for the day was to go to the chief
the donkey there and perhaps afterwards to go to see his wife
who was at least in good hospital hands.
The following day he failed to do either of the two
things because then he was going back to the mines in the Republic.
smacks of callousness of the first magnitude.
The accused claims that the deceased was armed with a
stick. But credible evidence shows that this claim is
not true. Coupled with the fact that the accused was seen
deceased at least three times even when the
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deceased was lying on the ground it would seem that the
accused's claim of self-defence has no merit whatsoever. The accused
seen assaulting the deceased after he had applied for bail
but before. It would be illogical therefore to disregard testimony
what he was heard saying in place of what he subsequently
fabricated in his affidavit prepared at the stage when he was
for bail. He cannot therefore make capital out of the fact
that the fabrication he embarked on when applying for bail has
to this day. A lie which is consistent with a prior lie
does not turn either of the two into the truth. The statement in the
application was never tested. There was no need to test it
because all that need be shown at that stage in order to grant the
bail was that he would stand trial and not abscond. Needless
to state, at the time he applied for bail the statements by Crown
who testified to the events had already been in the
possession of the investigating officers who came to the scene on the
the events. The fact that the accused's false averment was not
tested against the Crown witnesses' statements is no proof that it
must have been true. The testing has been conducted in this Court
which has come to the conclusion that the averment is false and
therefore deserves to be rejected.
Even assuming that the accused's story that the deceased
attacked him is true absence of the stick supposedly wielded by the
proves that the accused was lying in his claim that there
was any such stick. The number of injuries observed by the medical
disprove the accused's story that he knocked the deceased
This Court has time and again drawn attention to the
importance of Broadhurst v. Rex 1964 AC 44 at 457 that
save in one respect an accused who gives false evidence is in the
same position as one who gives none at all
and that in reaching a
conclusion on proved facts in a case where the jury can make
inferences regarding the accused's conduct or
state of mind the fact
that the accused has given false evidence serves as a factor in
strengthening an inference of guilt. Of course
onus rests on the Crown throughout to prove its case
beyond reasonable doubt.
Of course the fact that an accused person has been
proved a liar, cannot per se lead to the conclusion that he
is lying because he is guilty, regard being had to the fact that he
is speaking, so to speak, from
the shadow of the gallows. But in
other circumstances that factor can swing the balance against him.
See CRI/T/80/71 R. vs Mapefane (unreported) at by Jacobs C.J.
as he then was -
One would have expected that a man who was motivated by
claim of right as the accused seeks this Court to believe, would act
than he did after the assault. He could have gone to
report his misfortune to the authorities instead of disappearing
only to surface
months and months after the event when he got
I have considered the merits and demerits of either
side. The defects in the Crown's case consist mainly as to the
referred to in evidence. But I have no doubt that
the Crown testimony as to what its witnesses saw is truthful. I have
in rejecting the accused's version as false beyond all
The accused cannot seriously make merit of the fact
that he heeded D.W.3's intervention or the deceased's plea that he
assaulting the deceased because at that point, in my
view, the actus reus had been accomplished. Needless to say
the intention is to be gathered from the heavy stick used on the
vital part of the body
resulting in the fractured skull, saying
nothing of the various other injuries reflected in Exhibit "A"
and the belabouring
on a defenceless old man lying on the ground as
testified by eye witnesses.
The accused ought, as a reasonable man, to have realised
that assaulting a man of slender frame so advanced in age ever would
in fatal consequences despite which he went on regardless.
For this reckless conduct the accused is found guilty of murder as
My assessors agree.
17th August, 1990 For Crown : Mr. Mokhobo
Defence: Mr Monyako
9 JUDGMENT ON EXTENUATION
Extenuating Circumstances have been summarised by Holmes
J.A. in S. vs Letsolo 1970(3) S.A. 476 A at 476 E to 477 as
" have more than once been defined
by this Court as any facts, bearing on the commission of
the crime, which reduce the blame-worthiness of the accused, as
from his legal culpability. In this regard a trial Court
has to consider
whether there are any facts which might berelevant
to extenuation, such as immaturity,intoxication or provocation
(the list is notexhaustive),
whether such facts in their cummulative
effect,probably had a bearing on the accused's stateof mind
doing what he did;
whether such bearing was sufficiently appreciableto
abate the moral blameworthiness of theaccused's doing what he
The accused gave evidence in an endeavour to prove on a
balance of probabilities that even though legally speaking his act is
but subjectively speaking moral factors exist which are
sufficient to palliate the full rigour of punishment that would
He stated that it was sometime after his roofs were
blown off that he came home from the Republic of South Africa where
He only learnt when he and the deceased were fighting
how the roofs got blown off.
He had hit the deceased and as the latter fell he said
the accused should pardon him as he would presently tell the accused
The accused stopped assaulting the deceased then. The
deceased enumerated the names of the culprits. These were
'Mamokoto and the other staying with
the deceased .
It should be clear from this testimony that the deceased
did not include himself. The accused says he was hurt to learn
about the culprits' involvement but did not continue
belabouring the deceased.
The accused is insistent that his assault on the
was prompted by the question of the donkey which had
destroyed his crops and was intercepted by the deceased when the
taking it to the chief. Yet be stopped beating the
deceased from whom he learnt without any prompting the names of the
who had blown the roof of his house.
Needless to say the main judgment dismissed as
groundless this question of the donkey.
When asked by Counsel for the Crown if the accused was
aware that the deceased did not include himself among the culprits,
stated that he thought the deceased had included himself
because among the culprits was one who stayed with the deceased.
But he later resiled from this.
He said when the deceased talked as alleged the person
who was present was D.W.3. The others such as P.W.2, P.W.3 and
approaching. But Seabata was already near.
The accused believes D.W.3 could have heard the
Strangely though,it is in evidence that D.W.3 even
though he was so close he had cause to ask the accused why he was
The accused's story is made even the more difficult to
understand by the fact that in evidence he said he had stopped
deceased when D.W.3 asked him to stop. Yet on the other
hand he said he had stopped when the deceased offered to say who the
were. He left it to the Court to resolve this issue.
To my mind if indeed the accused stopped beating the
deceased when the latter made the offer to say who the culprits were,
deceased was inventing any story which might help
stop the accused from beating him further while he was
on the ground;a frail man of seventy who was unarmed when being thus
It is difficult for me to understand what in the middle
of a beating could have prompted the deceased to offer the names of
The accused suggests that perhaps it was the pain.
The only reasonable cause that to my mind might have
prompted the deceased to give these names is that the deceased was
asked to account
for the agency other than natural that blew the
roofs of his house or houses off. But the accused in his testimony
said he had not
known until at the end of the belabouring that the
misfortune he suffered was through human agency. Moreover he said he
believe people can cause roofs to be blown off.
Assuming then that the accused embarked on this
heartless act because he believed in witchcraft which in evidence he
he does not, the words of Isaacs J.A in Piet Mdluli
and Mandie Alfred Mdluli vs the King CRI.APP No. 7/79 (Swaziland
C.A. decision) (unreported) at 6 and extracted from Mbombo Dlamini
and Others vs R. 1970-76 Swaziland Law Reports p.42 by Schreiner
P as he then was would be appropriate, namely
"It is wrong to believe that belief in
witchcraftcan never constitute an extenuating circumstance,but
it is also wrong, even though it would bemerciful, to say that
belief in witchcraft alwaysextenuates "
I have searched my mind and considered C. of A (CRI)
No.3 of 1987 Tseliso Mona and Another vs Rex (unreported) and
R. vs Fundakubi and Others 1948(3) SA 810 in an attempt to
find out if killing based on a belief that the deceased has killed
one's relative by witchcraft constitutes
extenuation whether equally
killing because of a belief that the deceased has destroyed property
Even having exercised my mind seriously on this question
which is strictly not in issue I have not been able to find
that any extenuating circumstances exist in this case.
I have also had regard to the fact that there is abundance of
for the view that dolus eventualis does not
necessarily extenuate. It does not do so in this case.
My assessors are firmly of the same opinion.
Indeed as Counsel for the Crown in addresses interposed
"How can the accused then say he attacked the
deceased and felt provoked when he only learnt about who destroyed
after he had attacked the deceased".
I agree further with the final question put to the
accused in the proceedings at the extenuation stage that :
"Your reason for killing the deceased was
notbecause he had blown off the roof to your housebut some
other reason you concealed ? No"
The accused's Counsel in addresses did concede that the
story for the accused may be difficult to follow.
He was, in part, no doubt placed in a cleft stick by his
acknowledgement, not in so many words, that the element of
to be relied upon and that had been canvassed
during proceedings was an integral and inseparable part of the
version that was rejected.
Will the accused say why death sentence should not be
imposed: Because I did not intend that the deceased should die.
The sentence of this Court is that you be removed from
where you are to a place of custody where on an appointed day. you
hanged by the neck until you are dead.
May God have mercy on your soul.
JUDGE 17th August, 1990
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