IN THE HIGH COURT OF LESOTHO In the matter of
1. COSTA PETER SABA 2. POSHOLI MOKHACHANE
Delivered by the Hon. Mr, Justice M,L, Lehohla on the24th day of August, 1993
The two accused stand charged with the crime of Murder
allegedly committed on or about 27th December, 1988 at or near
the district of Butha-Buthe. The victim of this killing
is said to be one Tloung Mohloai.
The accused pleaded not guilty to the charge.
The accused are policemen. The deceased was under arrest
and in the police custody in connection with an alleged offence , of
of money when he met his death along the way between 4 point
where the search for money was effected and a place lying some
distance away from the Charge Office where the
deceased's police escort intended to return and keep him that
2 fateful night.
PW1 'Mamokobo Mohloai, the deceased's mother, testified
that the deceased was escorted to her home by the two accused at
p.m. on 27th December, 1988. On arrival accused 2
demanded that the deceased should produce the money of which he was
Thereupon the deceased stated that PW1 had put the money
in an iron trunk. When further being pressed to produce it the
that he had forgotten where the money was.
For some obscure reason, regard being had to the fact
that PW1 was not implicated in the suspected offence of theft, and
that it was
late in the evening accused 2 commanded her to accompany
the trio to the Charge Office. Apparently her protest to the contrary
the suggestion that she should rather go to her chief's place
PW1 observed that the deceased had injuries on the legs
and shoulders. Furthermore the deceased's wrists were swollen.
this stage the deceased was not handcuffed. These events
were taking place in PW1's house when the two accused, PW1 and the
stepped out of that house making ready to go to the chief's
place as earlier suggested.
It was at the forecourt of PW1's where accused 2
summoned the deceased to approach him so that the latter could be
handcuffed by him.
The actual text in this turn of events is as follows :-
"He (accused 2) said the deceased should come so
that he could be handcuffed. Accused 1 at the time had remained
behind in the
forecourt. He had entered the house too. He remained in
the forecourt when they went out of the house. Accused tied the
to a stirrup. He had coupled one hand to the stirrup. He had
used handcuffs to couple the hand to the stirrup.
The other accused went behind the house. He came back
i.e. accused 1. He did nothing at the time. I went to the chief's
place. I got
to the chief's place before them".
Suffice it then to state that accused 2 handcuffed the
deceased and by means of yet another pair of handcuffs tied the first
of handcuffs to the stirrup of a saddle on that accused's horse.
The Court later learnt from PW9 Trooper Mofilikoane that the name
this horse was Horse Gift and that of accused 1's was Litolobonya.
Horse Gift was noted for wildness while Litolobonya was tame.
From PW1's narration of events set out above it seems
clear to me that accused 1 must have heard when accused 2 summoned
to be handcuffed. He must also have observed when that
command was complied with.
Accused 1 seeks to take advantage of the statement by
PW1 above that "the other accused went behind the house" to
himself from being able to see the deceased being handcuffed
and subsequently hitched to the stirrup of accused 2's mount.
If for argument's sake this was to be accepted, or
perhaps even taken at face value, subsequent events expose the
of his pretence beyond doubt.
Even granting that he came following on his horse when
everyone else had gone ahead of him to the chief's place, it leaves a
mark concerning accused 1's attitude towards his own
knowledge and assessment of events. In the first place he knew that
had acquired some notoriety for escaping from police
custody. In spite of his knowledge of this he seeks to purvey a story
he came to the chief's place finding that accused 2 and PW1
had already gone into the chief's hut, he thought that the deceased,
who was standing next to accused 2's horse and unattended despite his
reputation, was holding that horse. (Meaning in deference to
habit and true to his reputation he was free to escape if he wanted).
Furthermore on their departure from the chief's place up
to the point where accused 2's horse allegedly started and as it did
spilling its rider as well as dragging the deceased in the
process/ accused 1 seeks to keep up a pretence that it never
dawned on him that the reason why the deceased seemed to
be inclined to walk more closely to accused 2's horse was that he had
hitched to its stirrup.
Finally and more importantly on this question of accused
1's knowledge that the deceased was tied to accused 2's horse regard
be had to the fact that no attempt was made to put to PW1
accused 1's defence on the point. More significantly regard is to be
to the absence of any attempt to put to PW1 the version that it
couldn't have been in the presence of accused 1 that the deceased
tied to accused 2's horse's stirrup for by then accused 1 had gone
behind the house to pass water. The suggestion in argument
accused 1's version that he had by then gone behind the house is
taken out of context because in the unchallenged version
testimony nothing indicates for a fact that when the deceased was
tied to the stirrup accused 1 was at that time behind
the house. It
is not denied that accused 1 went behind the house. But without an
attempt to establish at what stage he did so it
cannot be construed
that such stage was coincidental to the deceased being tied to the
stirrup. Even at the cost of being repetitive
I find it profitable to
go back to the text which on this point is as follows :
"Accused(2) tied the deceased to a stirrup. He had
coupled one hand to the stirrup. He had used handcuffs to couple the
to the stirrup.
the other accused went behind the house" Surely if
accused 1 sought to rely on this as indicating that he
was absent from the scene at the time he should have
indicated that PW1 said of me
"I couldn't have seen the tying to the stirrup
because I had gone behind the house at the time".
Failing any such dependable testimony it seems to me
that accused 1 is catching at straws. The phrase in quotes
is not meant to be prescriptive but is merely used
as an illustration that accused 1's contention that PW1 didn't say
accused 1 saw
the act of tying the deceased to accused 2's horse
cannot be relied on given the context and circumstances described by
PW1 on the
point. Nothing in the circumstances justifies any drawing
of an inference that accused 1 did not see the act. Indeed the
seems to hold sway because the text above does not say when
the act was being performed accused 1 had gone behind the house, but
rather that he went behind the house when the tying was being
effected by the other accused. Moreover PW1
1had placed accused 1 in the forecourt at the time
accused 2 called the deceased to the horse to which he was hitched.
There was an attempt made on behalf of accused 2 to
discredit PW1 by directly putting it to her that she "never saw
handcuffing the deceased to a stirrup".
This attack on PW1's credit-worthiness must be viewed
against the background that it was never denied that accused 2 tied
to a horse. Nor was it denied that when next he was
found dead the deceased was hitched to a saddle by means
of a pair of handcuffs coupled to another pair which was
used to manacle the deceased's hand or hands.
It was omitted rather glaringly on behalf of accused 2
to put to PW1 that the tying of the deceased to a horse was not in
Though accused 2 commendably approached the truth by
indicating that it was commonly agreed between him and accused 1 to
tie the deceased
to accused 2's horse, his suggestion that the tying
was effected elsewhere than at PW1's place is lamentably flawed by
the fact that
the deceased did not get into the chief's hut. He did
not do so because he was hitched to a horse. Accused 1 who came
that the deceased, who to him appeared to be
holding accused 2's horse was standing next to that horse. Needless
to say the basis
for this belief, is incomprehensible when
entertained by a man who knows that the deceased usually seized the
From PW1's place to the chief's place is not a long
distance. If accused 2 tied the deceased along the way between these
accused 1 would have caught up with them for his delay at
PW1's place was not much.
But since credible evidence shows that the deceased had
already been tied to accused 2's horse when he reached the
chief's place any suggestion that he was so tied only
after leaving the chief's place is not only bizarre but merits
The versions of the two accused are irreconcilable with
what occurred not only before the deceased's death but even after.
2 says he and accused 1 agreed that deceased be tied to
accused 2's horse. Accused 1 denies that he was any part of that.
The two accused suggested that the horse to which the
deceased was tied bolted when they were almost on the culvert. But
marks suggesting that the deceased was being dragged by
accused 2's horse start a long way before one could reach the
is supported by the evidence of the late Warrant
Officer Khobatha PW8 at P.E. where he said at page 10
"There was a sign of something that might have
been pulled on the road about two kilometers from the body".
Regard being had to the fact that the culvert lay about
midway between the body and the start of the drag-marks it
false that the horse bolted because of the culvert
yet the two accused are insistent on this despite proof of the
falsity of their
It is a further cause of bewilderment that although
accused 2 who claimed he was spilled by his horse with the result
that his overalls
even got sailed, he failed to heed PW9's warning
not to wash those overalls which would lend credence to his tale that
The inconsistency of the two accused's versions was
exposed by DM3 Trooper Molatoli called by accused 1. DW3 worsened the
in accused 1's case. DW3 contradicted accused 1's version on
the very point he appeared to have been called to corroborate him on.
While accused 1 said he was the one who showed the rest of the people
where the deceased's body was DW3 said it was accused 2 who
them where the body was.
Much of cross-examination was devoted to PW10 Dr. A.J,
Shayo whose simple evidence was that he observed multiple bruises on
of the deceased and pressure marks on the neck. He also
observed open wounds on the skull.
In his opinion death could have been due to head
injuries or possibly strangulation.
He qualified his opinion by reference to the fact that
because the cartilage at the neck was fractured combined with the
deceased had been injured this could account for the
secondary cause of death while the primary cause of death was the
The fact that these head injuries were half-moon shaped
would lend support to the view that the deceased had been kicked by
to which both accused decided to have him tied.
Some of the bruises on the body are accounted for by the
long distance that the deceased must have been dragged dead or alive
being deposited where he was later found dead still attached to
the saddle of accused 2's horse.
The strangulation may well have been caused by the
entanglement of the neck into the combined length of two pairs of
the stirrup. The weight of the deceased pulled over a
distance of 2 kilometers coupled with tremendous kicks he must have
from the horse which is reputed to have been wild resulted
in the girth giving in and snapping thus releasing the saddle that
on the ground in a heap with the deceased still hitched to it.
Coming now to the verdict: This whole episode seems to
me to smack of utter recklessness on the part of both accused to the
and well-being of the deceased. Accused 1 knew that the horse
to which the deceased was tied was wild. But accused 2's ignorance
this horse's peculiarity is no excuse because the very act of tying a
man to a horse apart from being risky is very
reprehensible and smacks of utter disregard of the
deceased's rights as a human being. Things of that kind were rampant
heyday of slave trade.
It is the rule of law that where an accused's
recklessness results in another's death then the accused's act is
Both accused are accordingly convicted of murder.
I have no doubt that extenuating circumstances exist in
this case in respect of both accused. Counsel are both spared the
to lead evidence or address Court in that regard.
NO PREVIOUS CONVICTION. Disparity in sentencing is
called for by virtue of the fact that accused 2 was senior to accused
Accused 1 is sentenced to 2 years' imprisonment Accused
2 is sentenced to 3 years' imprisonment.
J U D G E 24th August, 1993
For Crown : Mr. Sakoane and Mr. Thetsane For Defence:
Mr. Nthethe for Accused 1 Mr. Klaas for Accused 2
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