IN THE HIGH COURT OF LESOTHO
In the Matter of :
R E X
Delivered by the Hon. Mr. Justice B.K. Molai
on the 26th day of November, 1990.
The accused have pleaded not guilty to a charge Of
murdering 'Matanki Ramothamo, it being alleged that 00 or about 18th
1988 and at or near Ha Ntlama in the district of Berea
they each or some or all of them unlawfully and intentionally killed
It is significant that during the hearing of this trial
Mr. Fosa, who represents the accused in this matter, informed the
the defence would admit the depositions of 'Mapeete
Molapo, Mohobane Mautsoe, 'Mantahli Ntlama, D/Tpr. Mosuhli and Dr.
who were, respectively. P.W.5,7,8,9 and 10 at the
proceedings of the Preparatory Examination. Mr. Thetsane,
counsel for the crown, accepted the admissions made by the defence
In terms of the provisions of S.273 of the Criminal
Procedure and Evidence Act, 1981 the depositions of 'Mapeete
Molapo, Mohobane Mautsoe, 'Mantahli Ntlama, D/Tpr. Mosuhli and Dr.
Muwazi became evidence and it was
unnecessary, therefore, to call the
deponents as witnesses in this trial.
It is also worth mentioning that at the close of the
crown case the defence applied for the discharge of accused 2, 3 and
4 on the
ground that the evidence adduced by the crown had failed to
establish a prime facie case for the accused to answer.
The application was opposed by the crown who contended that the
evidence did establish prima facie case in respect of
No. 2 accused, It conceeded, however, that no prima facie case
had been established against Nos. 3 and 4 who should, therefore, be
acquitted and discharged.
I considered the evidence adduced by the crown and found
that there was not an iota of competent evidence which a court of
advising itself, could convict Nos. 3 and 4 accused.
They were accordingly acquitted and discharged at the close of the
As regards No.2 accused I found that there was evidence
indicating that he had taken the police to a spot behind his house
he dug in the ground and produced certain weapons
allegedly used in the fatal assault on the deceased. The questions
immediately arose were: who had buried the weapons
behind No.2's house; why were they buried and how did he know that
they were buried
behind his house? Without ' going into the question
of its credibility, it seemed to me that the evidence did establish
prima facie case for No.2 accused to answer and the
application for his acquittal and discharge at the end of the crown
case could not be properly
allowed. It was accordingly refused.
I, however, pointed out that the fact that the court had
turned down the application did not necessarily mean that No.2
compelled to go into the witness box and testify in his
defence. The defence was perfectly entitled to tell the court that it
closing its case in which event the court would be bound to deal
with the question of credibility of evidence and determine
whether or not it had been established beyond a . reasonable doubt
that the accused had committed the offence against which he stood
charged. The defence counsel told the court that in that event it
would call accused 2 to testify in his defence.
The court heard the evidence of P.W.1. D/L/Sgt Seboka,
who testified that on 19th September, 1988 he was stationed at T.Y
when he received a certain report following which he
proceeded to Ha Ntlama. He was in the company of two other police
D/Tper Matete and D/Tper Seboka who were, however, both
not called to testify in this trial.
4/ At Ha Ntlama
At Ha Ntlama P.W.1 was taken to a spot next to the
village tap where the deceased's dead body was found lying on the
ground. It was
dressed in a blue jersy with white strips, an off
white petticoat and lying in a pool of blood. On examining the body
P.W.1 found that it had sustained multiple wounds on the
head, chest, arms, hips, buttocks and knee. He counted altogether a
of 31 open wounds and an abraision on the right knee.
The body was conveyed to T.Y. Government hospital
mortuary for post mortem examination. It sustained no additional
being transported from Ha Ntlama to the mortuary. I
shall return to P.W.1's evidence later in this judgment.
The evidence of Dr. Muwazi was to the effect that she
was the medical doctor who, at about 2.30 p.m. on 22nd September,
an autopsy on a dead body of a female African adult.
The body was identified before her as that of the deceased by a
According to D/Tper Mosuhli, on the morning of the day
in question, 22nd September, 1988, he and P.W.1 went to the mortuary
Government hospital where the latter showed him the body of
the deceased. He confirmed that he was the police officer who, on the
afternoon of the same day, 22nd September, 1988, identified, before
Dr. Muwazi, the body of the deceased..
5/ In the
In the post-mortem examination report Dr. Muwazi
confirmed that the external examination of the deceased's body
revealed that it had
sustained multiple deep wounds inflicted by the
use of sharp instruments such a swords. On opening the body the
medical doctor found
that there was pericardium haemorhage resulting
in the death of the deceased.
I am prepared to accept as the truth the unchallenged
medical evidence that the deceased's death was due to internal
bleeding as a
result of the multiple injuries that had been inflicted
upon her with sharp weapons such as swords. The question that arises
the determination of the court is whether or not Nos. 1 and 2
accused are the persons who had inflicted the injuries on the
and, therefore, brought about her death.
In this regard the court heard the evidence of P.W.3,
Lebohang Malibetsa, who testified that the deceased was his maternal
On the night of 18th September, 1988 he, the deceased,
his younger brother and sister were sleeping in the same house at Ha
when he heard some foot steps behind the house. As he got up
and put on the light P.W.3 heard some one violently knocking on the
door with a hard object and angrily calling out: "open here or
else we shall set you on fire, together with the children, inside
house." He had no difficulty in
6/ identifying ... .
identifying the voice of the person who spoke at the
door as that of No.1 accused who was his relative and lived in the
as he did.
As No. 1 accused uttered the words mentioned above P.W.3
heard grass being pulled from the thatched roof of the house. He
the door and opened it. some people he could not recognise
them ran away leaving the grass burning outside the door of the
P.W.3 quickly pushed the burning grass to the forecourt
of the house and extinguished the fire. Whilst P.W.3 was busy putting
out the fire the deceased screamed out and ran away in the direction
towards the home of one Pholo, leaving the young children inside
After extinguishing the fire P.W.3 tried to follow the
deceased but could not find her. He then returned and went to report
had happened to one Thabo Keta. a next door neighbour who was.
however, not called as a witness. The two went to report to one
the chief's right hand man in the village. In turn,
Makukuno instructed P.W.3 and his companion to go and report to one
another of the chief's right hand man in the village. From
Tsoloane's place P.W.3 and Thabo Keta proceeded to the Chief's place
they found Makukuno already waiting on the forecourt. A report
was then made to the chief. On the instructions of the chief they
were joined by other village men with whom they proceeded to search
for the deceased. During the search they found the
deceased lying next to the village tap some distance
away from the house of Pholo. P.W.3 himself did not go close enough
to see if
the deceased were still alive. He, however, went with
members of the search team to Pholo's house where a report was made.
house they went to a hillock in the village where
Makukuno said he would raise a general alarm.
On the way to the hillock they met A2 who was walking
towards his house in the village. When Makukuno asked him where he
at that time of the night, A2 replied that he had been to
the home of one 'Masetho to announce the news that his sister,
had given birth to a child. Makukuno expressed his suspicion
that A2 could have been to 'Masetho's home to announce the birth of
child by his sister, 'Maneo, as alleged, because he knew that it was
a week or so since the latter had given birth to a child.
In any event, P.W.3 and his party parted with A2 and
continued on their way to the hillock from which the alarm was
P.W.3 returned home and took his younger brother
and sister to the home of one Mokhoatha.
In his testimony P.W.4, Makukuno Tsosane, told the court
that he was the chief's right hand man at Ha Ntlama. According to
P.W.3 and Thabo Keta had reported that the former's family
had been attacked he referred them to Tsoloane, another of the
chief's right hand man in the village whilst he himself
proceeded to the chief's place and reported the matter to
Ntlama. On the instructions of the
chieftainess he went to wake up Lesaoana Moshoeshoe and Mohobane
Mautsoe with whom he waited for
the arrival of P.W.3 and Thabo Keta
at the chief's place,
P.W.4 denied, therefore, P.W.3's suggestion that he was
present when the village men (Lesaoana Moshoeshoe and Mohobane
waken up. He conceded, however, that, after P.W.3 and
Thabo Keta had arrived at the chief's place, he Lesaoana Moshoeshoe
Mautsoe left with them to search for the deceased in the
The evidence of P.W.4 was confirmed by chieftainess
'Mantahli Ntlama and Mohobane Mautsoe. I am prepared to reject as
story in as far as it is contradicted by the evidence
of P.W.4 corroborated by that of chieftainess 'Mantahli Ntlama and
P.W.4 confirmed that during the search for the deceased,
he and his party found her lying next to the village tap, a short
from the house of one Pholo Khabo. According to P.W.4 the
deceased was already dead. He then left the search team and went to
up Pholo Khabo. As he and Pholo were going to where the
deceased's body was, they met A2 who was coming from a downwards
It could have been at about 10 p.m. He confirmed the
evidence of P.W.3 that he then
questioned A2 about where he came from at that time of
the night. In his reply A2 initially said he was from 'Masetho's home
he had gone to announce the news that his sister 'Maneo had
given birth to a child. When he told him that he (P.W.4) knew that
had given birth to a child about a week ago A2 then
somersaulted and said he was from A1's parental home where they
drinking beer. Although not entirely satisfied with A2's
explanation about his walking about in the village at that time of
P.W.4 and Pholo let him go.
According to P.W.4 as he and Pholo were talking to A2
the members of the search party, including P.W.3, were not there.
waiting at a distance of about 10 paces (indicated) away.
P.W.4 denied, therefore, the evidence of P.W.3 that he was present
he (P.W.4) met and questioned A2 about his movements at night.
He conceded, however, that because he and A2 were not whispering as
they talked to each other P.W.3 could have followed their
In his evidence P.W.4 told the court that after A2 had
left, he and Pholo went to join the members of the search team. He
Lesaoana Moshoeshoe to go to the hillock and raise an
alarm in responce to which many villagers came to the spot where the
was lying dead. P.W.4 denied, therefore, P.W.3's evidence
that it was he (P.W.4) who went and raised the alarm from the
hillock in the village.
The evidence of both P.W.3 and P.W.4 was, however,
contradicted on this point by the evidence of Mohobane Mautsoe
according to whom
he was the one who actually raised the alarm on the
instructions of P.W.4. I am inclined to accept as the truth the
evidence of Mohobane Mautsoe and reject as false the
contradictory stories of both P.W.3 and P.W.4 on this point.
It is common cause that after they had been alarmed, the
villagers gathered at the scene of crime where a night virgil was
over the body of the deceased throught the night. On the
following day, 19th September, 1988, the police were sent for.
As it has already been pointed out earlier, P.W.1 and the other two
police officers attended the scene of crime.
Now, coming back to his evidence P.W.1 testified that
after he had examined the body of the deceased for injuries and
information he cautioned and interrogated A1 and
A2. After they had given explanations regarding the death of the
deceased the accused
took him to the home of A2. He was in the
company of the other two police officers, P.W.4 and two other
At his home A2 went behind the house from where he dug
in the ground and produced two home made swords one of which had its
wrapped with a rubber band.
11/ Its blace
Its blaced had what appeared to be blood stains. The
accused then took him to the home of A.1 At his home A1 produced a
iron rod. There was nothing of interest on the iron rod.
Asked about the clothes he had been wearing on the previous day A1
a shirt and a pair of greenish trousers which had what
appeared to be blood stains on the buttocks. Because of the blood
them,P.W.1 took possession of the sword with a rubber band
on its handle and the greenish pair of trousers. He subsequently
them to be sent to a forensic biologist, 'Mapeete Molapo
together with the deceased's jersey and petticoat, for examination.
This is confirmed by 'Mapeete Molapo, the forensic
biologist, whose evidence was to the effect that on 29th September,
1988 she subjected
to a forensic test the deceased's jersey and
petticoat as well as the sword and the pair of trousers produced by
A2 and A1, respectively.
Her findings were that the blood stains on
the jersey petticoat and the sword were of a human being-group 0. The
blood stain on the
green pair of trousers was, however too small to
determine the species of its origin and group.
It is common cause that from A1's home, P.W.1 and his
party, returned to the scene of crime from where the body of the
with A1 and A2 were conveyed in a police
vehicle to T.Y. town. On the way to
T.Y. P.W.1 met A4. He cautioned and interrogated him.
Following his explanation A4 was also taken to T.Y. together with A1
In T.Y. the body of the deceased was left at the mortuary
whilst the three accused viz. A1, A2 and A4 were taken to the police
A 3 was subsequently brought to T.Y. police station where he
joined the other three accused.
P.W.1 told the court that he considered the
statement which A2 had made at Ha Ntlama to amount to a
confession. After they had come to T.Y. police
station A1 repeated the same statement. He then asked
him whether he would be prepared to repeat the statement even before
to which question A1 replied in the affirmative.
Arrangements were then made for A1 to go to a Magistrate before whom
that he and the other three accused had planned to kill
the deceased for having bewitched his younger brother, Manyarela, who
buried on 17th September, 1988. He himself participated in the
killing of the deceased by kicking her with booted feet at the time
the other accused were assaulting her with swords.
P.W.2, 'Mantsebo Machaha, the magistrate, confirmed
that on 21st September, 1988 No. 1 accused appeared before her and
confession. Although the admissibility of that confession was
challenged on the ground that it was not freely and voluntarily made
I have, in a separate judgment, found that it was freely
voluntarily made and, therefore, admissible evidence.
The two accused gave evidence on oath in their defence.
Although he conceded to have planned, together with the other
the killing of the deceased for having bewitched his late
brother, A1 told the court that when they came to her house he heard
deceased calling out the name of her son, Rabelete. He was afraid
of Rabelete. When he heard the deceased calling out his name he
immediately ran away and never participated in the assault on her. He
only learned afterwards that the deceased had been assaulted.
As it has already been stated earlier in this judgment,
on 21st September, 1988 A1 made a confession in which he clearly told
magistrate that he had participated not only in the planning
of the deceased's death but in the actual assault on her as well.
am convinced that his evidence before this court, that he never
participated in the assault on the deceased, is but an after-thought
which I have no hesitation in rejecting as false.
In his evidence A2 told the court that he neither
participated in the plan to kill the deceased nor did he assault her.
however, that on the night of 18th September, 1988 he
met P.W.4 in the village and told him that he was from the home of
where he had gone to announce that his sister,
'Maneo, had given birth to a child. As he was
illiterate he did not know the time when the child was born.
14/ He, however, ....
He, however, called his brother Majoooa Mokhomatha who
testified, as D.W.2, that the child was born at about 2.30 a.m. on
of the 18th September, 1988.
Well, if the evidence of D.W.2 that his sister, 'Maneo,
gave birth to a child at 2.30 a.m. on the night of 18th September,
to be believed, it is obvious that A2 was telling a lie,
both at the time he spoke to P.W.4 and in his evidence before this
when he said he had been to 'Masetho to announce the news that
his sister had given birth to a child. According to P.W.4 and P.W.3,
who are both literate, it was around 10p.m. on the night of 18th
September, 1988 when P.W.4 met and questioned A2 about his nocturnal
movements. At that time the child had, according to D.W.2, not yet
been delivered. That being so, A2 could not have been to the home
'Masetho to announce the birth of a child which was not yet born. I
am of the opinion that both A2 and D.W.2 were simply not being
with the court. I have no hesitation in rejecting as false their
evidence on this point.
A2 conceded that after he had been interrogated by P.W.1
he took the latter to his house from where he produced the two
to him the swords had been pinned on a stoep behind
the house. He denied, therefore, the evidence of P.W.1 that the
swords had been
buried in the ground from where he (A2) dug them out.
Although A2 denied to have dug the
15/ swords from
swords from the ground behind his house, the evidence of
P.W.1 that he did,was corroborated by that of P.W.4. I am inclined to
as the truth the evidence of P.W.1 corroborated by P.W.4 that
A2 had in fact buried the swords in the ground behind his house from
where he dug them out.
The reason advanced by A2 for keeping the two swords not
in the house but at the spot from where he produced them behind the
was that they might be stolen in the house because the door
thereof did not close properly. He,however, conceded that his other
was kept in that house.
I must say I find the reason advanced by A2 for hiding
the two swords behind the house in the manner described by P.W.1 and
whilst his other property was still kept in that same house
totally unconvincing. Regard being had to the medical report that the
deceased had been assaulted with swords; A2 was, around the time the
deceased was assaulted, seen in the vicinity of the place where
dead body of the deceased was found, his contradictory replies to
P.W.4's question about his nocturnal movements and that he
in the ground his swords one of whose blade had blood stains falling
within the deceased's blood groop O, leave no doubt
in my mind that
the real reason why he hid the swords in the ground behind his house
was because A2 knew that he was owe of the people
who had used the
swords in the deceased's brutal assault which he wanted to cover
16./ That being.......
That being so, the question I have earlier posted viz.
whether or not the two accused are the persons who have inflicted the
on the deceased and brought about her death must, therefore,
be answered in the affirmative.
The question whether or not in assaulting the deceased
to death the accused had the requisite subjective intention to
a matter of inference to be drawn from either their words or
acts. As it has already been pointed out earlier, in his confession
A1 told the magistrate that he had planned or premeditated the
death of the deceased. There can be no doubt, therefore, that
assaulting the deceased he had direct intention to kill.
A1's confession cannot be used as evidence against A2
who is his co-accused. I have, however, found that there is
indicating that A2 had participated in the
assault perpetrated on the deceased.
In brutally assaulting the deceased on the upper parts
of her body A2 and A1 were,in my view,
aware that death was likely to occur. They nonetheless
acted reckless of whether or not it did occur. That granted, I come
conclusion that in assaulting the deceased as they did, the
accused had the requisite subjective intention to kill. In the case
A1 it was direct intention whilst in the case of A2 it was
intention in the legal sense.
17/ In the .
In the result, I have no alternative but to find both
accused guilty of murder as charged.
My assessor agrees.
B.K. MOLAI JUDGE.
23rd November, 1990.
For Crown : Mr. Thetsane For Defence: Mr. Fosa.
We are enjoined by S.296 of the Criminal Procedure
and Evidence Act, 1981 to state the existence or otherwise of
There is evidence indicating that A1 believed that the
deceased had bewitched his younger brother, Manyarela and was,
for his death. As regard A2 I have found, on
evidence, that he had intention to kill, in the legal sense i.e.
there is no evidence
that he premeditated the death of the deceased.
In my view, there are, in this case, extenuating
circumstances viz. the belief in witchcraft and the absence of
proper verdict is, therefore, that the accused are
guilty of murder with extenuating circumstances.
My assessor agrees with this finding. SENTENCE:
Thirteen (13) years imprisonment.
B.K. MOLAI JUDGE
For Crown : Mr. Thetsane. 26th November,1990 For
Defence: Mr. Fosa.
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