CRI/T/5/87 IN THE HIGH COURTOF LESOTHO
In the matter of :
NOSI MOTHIBETSANE JUDGME N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
3rd day of December, 1990
The accused is charged with the murder of Seetseng
Makume who died from assault injuries on 23rd November 1985. The
scene of the assault
was at a place called Ha Ramatlope in the
The accused pleaded not guilty to the charge. Originally
the accused was one of the four assailants who were charged with this
Some or all of his other co-assailants have since been
tried. The accused's trial to-day is a result of an application for
of trials necessitated by the accused's failure to stand
trial with the alleged co-assailants.
The depositions of P.W.4 Gerard Mpela at the Preparatory
Examination were admitted because this witness has since died and
could not give oral evidence in this Court.
The Post-Mortem Report of the Medical Officer who
examined the deceased's body was also admitted because that officer
has since completed his contract with the Lesotho
Government and gone abroad for good.
The defence on its part made formal admissions of the
witnesses whose P.E. depositions were accepted by the Crown and
into the recording machine and thus made part of
today's proceedings. The witnesses in question are the following :-
P.W.3 Mohanoe Sello P.W.5 Setlai Leferofere P.W.9
Mahusetsa Makume P.W.10 'Matsolo Lefama P.W.12 D/Trooper Moshoeshoe
Although the defence was prepared to admit the evidence
of P.W.6 Scabata Shano the Crown did not accept that admission.
the witness was called upon to give oral evidence and in
turn cross-examined on it
The evidence led indicated that the deceased was a miner
in the goldfields of South Africa and had not been long in the
he had had a week-end off from his job,
On the day of the incident the deceased was present at a
stockfair party held at the home of P.W.8 'Masupang Many people had
there. Beer was being sold at this party which had started
approximately at 9.00 a.m.
The deceased was in a jolly mood and displaying a very
The accused and P.W.5 had brought their tape recorders
to this party. P.W.5 was operating one of these recorders to provide
The 3 other co-assaiiants were not present when P.W.6 came
at about 3.40 p.m. to this party. True to his generosity the deceased
bought 40 cents worth of beer and offered it to P.W.6 and one Thabang
who drank it The accused does not drink.
The accused went out carrying his tape recorder and left
Because the batteries of the recorder which had remained
in play had run down the music stopped and the deceased stopped
The deceased had his knobkerrie with him at this feast. He
bought a four gallon tin full of beer for all thosewho were there. He paid some R6-00 to P.W.8 for the purchase
of this beer.
The merrymakers took the 4-gallon tin outside and
lavishly helped themselves to its contents.
When he left the accused did not say where he was going.
However one and half hours later his presence at the scene was
noticed by P.W.8. She did not notice when
the accused came hack though.
For purposes of clarity the three original accused
Ramanaka Mothihetsane, Mphonyane Loferefere and Maqhobela Petlane
will he referred
to as co-assailants 1, 2 and 4 in these proceedings
Co-assailant 4 arrived, found the deceased holding a mug
full of beer. The deceased offered co-assailant 4 this beer which
to he the very last drop from the 4-gallon tin which those
present had been treated to. Co-assailant 4 gulped it hurriedly with
the result that some of the beer spilled on his chin and chest.
The deceased was later seen standing at one of the
cornered of P.W.8's house, heartily engaged in a conversation with
thus engaged in this conversation with the deceased
P.W.6 observed the accused repeatedly hitting the ground with his
apparently thought nothing of this and dismissed it as
some form of an innocuous hut strange diversion.
The accused seemed to have approached the scene from the
left while the 3 other co-assailants approached it from the right.
as the deceased was looking away from P.W.6, co-assailant 1 came
between the deceased and P.W.6
and levelled his stick at the hack of the deceased's
head with the result that the deceased who was caught unawares by
this blow staggered
forward and towards the left in a haze only to he
dealt a savage blow on the chest with a timber stick by the accused
that he feared or thought that the deceased was
fighting his brother assailant 1.
At this stage in the chain of events it is important to
note that the accused conceded that he was aware when the deceased
the blow from the hack of his head that the deceased was
taken unawares. He was aware also that the deceased in his
from the blow he was not posing any danger to
anybody. Thus caught in the jaws of this untenable behaviour on his
part in attacking
the deceased who was flailing his limbs in a haze
the accused sought to explain his behaviour by saying that all turned
his mind and without knowing what he was doing he found
himself having struck the deceased on the chest with that stick.
It is important also to note that P.W.11 D/trooper
Lephoto had in his evidence in the presence of the accused in this
that the accused had told him that be fought the
deceased because the latter had fought his brother co-assailant 1.
how the accused could reconcile the statement he is
said to have given to P.W.11 with his evidence that he assaulted the
because he thought the latter was fighting his brother,the
accused said he did not hear when P.W.11 gave this piece of his
The upshot of the accused's failure to hear evidence
given in his presence which evidence conflicts with his own is that
evidence remains unchallenged. Furthermore the accused
was represented in these proceedings. If it is true that he did not
this evidence which contradicts his, I am in no doubt that the
accused's counsel would have cross-examined P.W.ll on it provided
was of the view that it was not true.
Needless to say the accused in his own words can
that his version that the deceased could he said to have
attacked a man away from whom he was facing when assaulted was
Further evidence shows that after the initial blow to
the hack of his head the deceased who was set to by the accused and
fell to the ground. Crown witnesses testified that
while on the ground the deceased was belaboured by these men with
sticks in a
manner akin to thrashing of sorghum.
It is on record that the accused's timber stick got
splintered in the process whereupon he picked up the deceased's
where it had fallen and belaboured him some more with
The accused states that he hit the deceased with that
knobkerrie only once on the arm. Asked why;hs said because he
thought the deceased
would rise and attack him and the others who had
joined in the assault on the deceased who was already sprawled
helplessly and in
careless abandon on the ground. In this posture of
events when asked if he seriously thought the deceased could rise and
danger to the four men assaulting him the accused retreated
to his well-worn excuse that his mind had gone blurred and
he just saw himself doing what he did.
Albeit with some reluctance the accused conceded that
his position at the time of the assaults while the deceased was lying
was towards the upper part of the deceased's body.
Evidence showed that when seen in the deceased's hands
his knobkerrie was still intact and the handle long. However, after
on the deceased with that knobkerrie the handle was now
shorter showing that it had got broken. The accused says he does not
in what condition that knobkerrie was when he picked it up
and hit the deceased with it. He however conceded that had the
knobkerrie been used prior to the attack on the deceased
he would have noticed if he was present when that knobkerrie was
the light of the fact that prior to the attack on the
deceased no commotion occurred necessitating the use of that
is safe to infer that the knobkerrie's handle got
broken when applied by the accused on the deceased. It is also safe
to infer that
much force was used in wielding that knobkerrie with
the result that it broke. Needless to say that from reliable
the accused's place vis-a-vis the position of the
deceased's body during the assault the accused must have hit the
deceased on the
Reliable evidence shown that the accused did not only
hit the deceased once with that knobkerrie. It also shows that he
did not hit
him only once with that stick. Surely it becomes
difficult to understand how, if it is true that the accused's mind
after using each of these weapons only once to hit the
deceased, he could recollect with clarity of mind that he had applied
of them only
once unless the hacloading of his mind was conveniently
selective; that is completely beclouded to make him unaware of what
doing hut at once sufficiently clear to enable him to state
with certainty that on each occasion he hit the deceased once. To my
mind the accused's account of his participation in the assault is
untenable and geared at either minimising his participation or
falsely denying the savage attack he unleashed on a man who posed no
danger to him.
The Crown submitted that the accused's departure to
Mapokane's from where he came to the scene almost simultaneously with
the 3 co-assailants
was a mare ruse embarked on byhim after he had ascertained that the deceased was at P.W.8's
place so that the co-assailants said he could later come and kill the
deceased as they did. The accused denies this. He however is at a
quandary to say how a man who appeared to pose no danger to anyone,
who was offering almost everyone who was at the stockfair beer he
had bought, could for so apparent reason be so savagely attacked
unawares even by one
of the co-assailants who drank the last drop of beer
bought by the deceased. The accused is unable to say why in the
light of his
admission that his explanation is absurd he participated
in the assault on the deceased.
It is not difficult therefore to draw a conclusion that
the attack on the deceased was not sponteneous but a result of
by those who unleashed this savage and brisk attack on
The accused conceded that the deceased was older than he
is and that the deceased at one stage grew up in the accused's
He conceded further that he in turn went and stayed
at the home of the deceased as the deceased's ward after the deceased
and up a home nearby in their village.
It would seem to me therefore that in order to negative
the view that the accused's sole departure from P.W.8's place was in
to fetch the co-assailants, he used a stratagem of separating
from the co-assailants and approaching P.W.8's place by taking a
about path,. The purpose of this stratagem was to hoodwink
those who had remained on the scene into believing that the accused
no part in the plot that was hatched against the deceased
To my mind the simultaneous arrival of the accused and
the co-assailants at P.W.8's place after the accused's long
that place was no coincidence, less still his
assault on the deceased immediately after co-assailant 1 had dealt
the deceased a stunning
blow at the back of his head.
A matter of further significance is that the accused,
after the deceased had been beaten to death and any prior attempts by
and P.W.8 to intervene on the deceased's behalf had been
thwarted, lingered for a short while when his companions departed and
P.W.8 and P.W.6 said the whistle was blown as a mark of
triumph for the mission successfully accomplished. The accused does
having blown the whistle immediately after the deceased
appeared'to he dead. Ha however says that that did not signify any
on his and his companions' part. He says that he blew his
whistle to summon those who were to accompany him to the circumcision
school. P.W.6 in a very fair and generous manner told the Court that
indeed a whistle can he blown either to summon people to go
circumcision school or as a mark of victory, triumph or celebration.
The accused stated that he failed to go to the
circumcision school or be accompanied to that place by
those he was summoning there because it was decided by the
they go to the chief's place because they had
caused an accident at P.W.8's place.
It thus poses no difficulty to rule out as a mere red
herring across the trail the accused's attempt at watering down the
triumph signified by his blowing the whistle immediately
after the assault. He attempts to water down this celebration by
a wholly unrelated story that he blew the whistle to summon
people to a circumcision school. The accused's version lacks local
in the extreme in this regard.
Confronted with the incongruity of his version of the
circumcision school in comparison with the one home out by
the more relevant, the accused grunted his
disagreement hut bore the look of a dying luck in a thunderstorm.
The authority of S. vsX 1974(1) SA 344 at 347 H to 348 A is relevant as
to the state of an accused's mind as reflected by acts done after the
authority is even more so in the instant matter where
the accused's state of mind was marked by fanfare and joy immediately
The Court has to also have regard to the fact that the
accused breached his conditions of hail by failing to attend his
trial at the
time the co-assailants were tried There is authority for
the view that a man who flees from trial confirms his guilt.
The post-mortem report shows that death was due to brain
damage. The skull was fractured and there was a depression on it.
Regard being had to the fact that the accused was
standing opposite the deceased's upper body when the assaults were
and that his stick and the deceased's knobkerrie applied
by the accused splintered and broke respectively leaves me in no
the force with which these weapons were used was savage
and directed at the upper part of the deceased's body of which the
a vital organ.
for the Crown submitted that when P.W.2 knocked off from work and
came to P.W.8's stockfair the accused was still absent. She
that it was no matter of sheer coincidence that when the
accused came hack to the scene his brother and other co-assailants
the accused converged on the deceased.
She further submitted that there was actual intention to
kill on the part of the accused formulated earlier than at the time
was launched. She buttressed her argument by stating that
all the assailants including the accused encompassed the deceased's
On this basis she prayed that the accused should he found
guilty of the murder of the deceased on the basis of a manifest
called dolus directus as distinct from doluseventualis
Arguing in the alternative and relying on S.vs
Ngobozi 1972(3) SA 476 at 478 Miss Moruthane prayed
that the accused should he found guilty of murder on the basis of the
principle of common purpose. She quoted a passage
referred to in the above case saying -
"Suppose A and B, each carrying a knife, form an
unlawful common purpose, in the execution whereof each is to play a
part, to assault C by stabbing him. In the ensuing
scuffle, first A gets in the fist and only stabbing-blow; and as the
Each is guilty of murder if he subjectively foresaw the
possibility of the execution of their unlawful common purpose causing
death of C. In other words, each unlawfully and negligently
caused the death of a fellow being".
Needless to say common purpose can arise on the spur of
the moment and without prior deliberation or formulation of method of
Relying on Rex vsCilliers 1937 AD 278 at 285 the Crown pointed out
that acts or utterances of one conspirator are admissible against the
other if made in furtherance
of the common purpose.
Having considered the evidence adduced in this
proceeding and considered the authorities highlighting and supporting
the legal principles
to he had regard to I find that it would not be
necessary to resolve the present case on the basis of common purpose
in the teeth
of abundant evidence showing that it would not be wrong
to infer that the intent to kill was formed long before the attack
on the deceased.
Consequently the accused is found guilty of murder with
My assessor agrees.
JUDGE 3rd December, 1990
JUDGMENT ON EXTENUATION
Defence Counsel having started off to give an ex-partestatement not based on sworn evidence was invited by the Court to
say if he had had regard to the words of Schutz P. as he then was
C. of A. (CRI) No. 7 of 1989 Naro Lefasovs Rex (unreported) at 12.
The main thrust of that judgment on extenuation if that
where counsel wishes to rely on a statement of the nature referred to
he or she should "ascertain clearly whether the Crown
admits its factual correctness".
In the instant case it appeared that learned Counsel for
the defence had not paid any regard to this state of affairs.
Having utilised the time allowed him to acquaint himself
with relevant portions of that judgment and to consult further with
he very properly decided to lead the accused in evidence
The main thrust of the accused's evidence at this stage
was that in September 1985 the deceased in the company of his wife
at the accused's place at night while the accused was
sleeping there alone.
The deceased accused him of having an illicit love
affair with his wife. The deceased hurled an insult at
to wit "your mother's vagina" and left
the accused in there
with a promise or threat that he was going to report
hiscomplaint to the accused's mother.
The accused rose after the deceased had left, dressed up
and fled to Rasekonti's place because he said he feared the deceased
come hack and kill him
The accused reported to Rasekonti what had transpired
between him and the deceased. The following day Rasekonti undertook
the accused with the
deceased hut was dissuaded from letting the accused
accompany him by one Dyke. Thereupon Rasekenti went alone to see the
for the deceased would kill the accused.
It is to he wondered how the deceased could have done
this at any subsequent time having let slip the opportunity to kill
when he found him undressed at night at the accused's
place where the latter had just awoken from his sleep. Be it
the accused says the deceased even then was armed
with a knobkerrie.
When Rasekonti came hack to report about the results of
his trip the accused's mother was with Dyke and the accused. He told
that the deceased had said that this he kept a secret confined
to only those who had, up to this far, heard it.
The accused's mother became suspicious and went to
complain to the chief about his child being threatened at night by
The chief did not call the deceased to confront him
with the accused's mother. Afterwards when he gave this matter a
attention the deceased was already gone to the mines.
Thus the chief's efforts were thwarted.
Then Ramanaka the accused's elder brother came hack from
the mines a week before the events whereupon the accused told him of
foregoing. Ramanaka expressed a wish to see the deceased
wherever opportunity would allow.
On the day of the incident the accused having located
the deceased at P.W.8's place left and went to 'Mapokane's to alert
and the other co-assailants of the deceased's presence at
The accused and they duly set out for P.W.8's place.
The accused separated from them some distance away from that place
another path leading to P.W.8's
This is the place where this dastardly and wanton attack
on the deceased took place.
The accused laid much store by the fact that his
brother, despite the accused's dissuasion, insisted that the deceased
should he confronted
there and then. The accused says he had advised
that this matter would better he looked into at home and not at the
However, he was prevailed upon by his brother whom he
feared would, if the accused persisted in his advice, charge the
lying if he seemed to he wavering instead of seizing
this opportunity to go and confront the deceased there and then.
The accused said that on his own he feared the deceased
so much that he would not have dared challenge him to a fight. He
wants the Court to believe that his brother Hamanaka is
the one who influenced him to commit this offence.
The accused was hard put to it to say why he did not
tell this story to the Court in the main trial. His excuse is that
he had forgotten.
He only came to remember it when his Counsel
urged him without let up to remember it. The Court is not oblivious
of the fact
that the accused was, during the main trial, pressed
without avail to say why the deceased was killed. It cannot he true
to say he had forgotten the reason why. He conceded that
the reason he has now advanced was important. It is therefore my
that he was lying when he said he had forgotten it. He was also
lying in the main trial when he said he did not know why his brother
and he assaulted the deceased.
In the light of the fact that he has now brought to
surface some background to this entire episode it becomes clear again
his assertion to the contrary, is lying when he
persists that the plot to kill or assault the deceased was not
embarked upon at the
time he alerted
the co-assailants of the deceased's presence at P.W.8's
place; or even earlier.
While his cohorts might have had beer to drink the
accused was in his sober senses. This in itself can scarcely
accommodate him within
what the law regards as extenuating
circumstances. These being factors not ton remotely related to the
offence hut if shown to exist,
serving to reduce the offender's moral
blameworthiness Needless to say in order to avail extenuating
circumstances must he established
by the accused on a balance of
I have strained my wits to consider what possible
extenuating circumstances can he said to exist where an innocent man
from the hack of his head is converged upon by a
group of four mature men each armed with either timber sticks,
knobkerrie or sword,
and is belaboured in a manner similar to
thrashing of sorghum.
Serious consideration of the excuse advanced that the
accused's brother prevailed upon him to commit this cowardly and
has brought me to the view that it would he perhaps
flying in the face of moral loyalty to one's brother and would even
a course of conduct that would have taxed the
emotional resources of a much more sophisticated individual than the
accused's if he
did not give in to his brother's wicked schemes.
For this I do find that extenuating circumstances just
and only just exist in this case.
You may count yourself extremely lucky for this
The accused is sentenced to 20 years' imprisonment.
JUDGE 4th December, 1990
For Crown : Miss Moruthane For Defence: Mr. Fosa
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