C OF A
(CRI) NO. 1 OF 2000
LESOTHO COURT OF APPEAL
MABOKA First Appellant
RANKHELEPE Second Appellant
appellants in this matter appeared before the High Court on two
charges namely murder and arson respectively, it being alleged
upon or about the 1lth February 1993 and at or near Matlameng in
Leribe district they unlawfully and intentionally killed
'Maphooko Phooko (hereinafter referred to as the deceased) and there
and then set her house on fire with intent to injure her
in her said
appellant pleaded guilty to culpable homicide on the first count and
guilty to the charge of arson on the second count. For his part the
second appellant pleaded not guilty to both counts.
who presided in the matter found both appellants guilty as charged on
both counts and sentenced each of them to nine (9)
imprisonment. Although the learned Chief Justice had found both
accused guilty on both counts he however failed to specify
which count they were being sentenced. It is not clear whether the
nine (9) years' imprisonment in respect of each appellant
murder or arson or indeed both. More about this later.
it to say at this stage that both appellants have appealed to this
court against their convictions only. It proves convenient
with the case of each appellant separately and at this stage it is
regrettably pertinent to observe that the record of
including the translation thereof is of such a poor nature as to
belie the importance of the case itself.
against the first appellant.
trial the Crown called only two witnesses namely PW1 'Mathabo Mathabi
and PW2 'Masesu Mashili. Stripped of all its side issues
of PW1 was that following the death of the appellants' brother who
had been struck by lightning she proceeded to the
home of the first
appellant. She gave no particular reason for going there and denied
the suggestion that she had gone to pay her
condolences to the
bereaved family, nor did she admit to having told that family that
the deceased was responsible for the death
by lightning as suggested
by the first appellant and consistently adhered to her denial both
before the Chieftainess 'Masesu Mashili
(PW2) as well as the Senior
Chieftainess 'Majoel Moshoeshoe.
emerged in cross examination that what PW2 did admittedly tell the
first appellant's family though is that the deceased had insulted
(PWl's) child whom she even threatened to kill with lightning. This
admission then prompted the following question by counsel
appellants (Record page 22):
'DC.: But and (sic) also that your timing was very bad you talked
about this your son at a very bad time do you agree with me that
the son of that house had been struck by lightening (sic) do you
PW1: Yes 1 did talk about lightening (sic).
DC: No, I am saying do you see your time (sic) was bad?
PW1: Yes may be I talked without realising it."
significance of this "bad timing" is that it led to a chain
reaction of events and indeed it is the case for the first
that his elder brother's wife 'Mamookho reported to him about PWl's
visit to their family and her implication of the
deceased in the
death of his brother by lightning.
to PW1 then it is her evidence that she subsequently returned to her
home and while she was there she heard an alarm by
shouting: "here are people who have come to kill a person."
Pressed further she modified the alarm to the following
"He (Thato) said people hurry here is Mosehle (first appellant)
killing 'Maphooko." She duly proceeded to
the deceased's place
where she found her present. She had been "beaten" on her
back and PW1 observed "some marks"
on the deceased's back.
further testified that on the following day she was summoned to PW2
with the two appellants. PW2 then sent them to the Senior
Chieftainess's administrative court. It is here that PW1 alleges
"they (the appellants) said they did
because I said 'Maphooko had killed their brother." She however
reiterated her denial as stated above. According
to PWl's evidence
the appellants then "praised themselves saying that they will
ultimately kill her." She however immediately
qualified this by
stating it was Mosehle (first appellant) who said that. The meeting
at the Chiefs place was then postponed to
another date and PW1
returned to her village in the company of the deceased each finally
going to her own home. She learned of
the deceased's death the
learning of the deceased's death PW1 hurried to her (deceased's)
place where she confirmed that the deceased was dead and her
cross-examination PW1 was consistent in her version that it is the
first accused who vowed that he would ultimately kill the
the Senior Chieftainess's administrative court.
evidence of PW2 is briefly to the effect that both appellants came to
her place "reporting that they chased the deceased,
and when I
asked them why they chased her, they told me that since someone had
died in their family, who died of lightening (sic)
they thought that
it was just an ordinary death and then they were informed by
"Mathabo that the persnd (sic) who died in their family had been
killed by 'Maphooko with lightening (sic) so they had been
her they wanted to kill her, thereafter they left and then arrived
on who actually made this vow to kill the deceased PW2 testified that
it was Mosehle Maboka namely the first appellant.
testified further that she then sent the appellants to the Senior
where they repeated their vow to kill the deceased because she had
killed their brother with lightning. PW2 corroborates
PW1 that she
denied ever telling the appellants' family that the deceased had
killed their son with lightning.
further the evidence of PW2 that on the same day on which they went
to the Senior Chieftainess she received a report at midnight.
also heard the deceased crying ''please Mosehle have mercy on me."
She proceeded to the deceased's home where she found
house already on fire. She found other villagers already there
"trying to help to put out the fire and taking
out the deceased
out of that house." The deceased was then placed in the
forecourt where PW2 observed that "she had been
stabbed with a
sharp object" all over the body. She was already dead. PW2
conceded that she did not see the appellants there
at the time the
house was burning. This was after she had surprisingly stated: "I
only saw their shadows after they had picked
some grass and lid (sic)
them (sic) and then leave the rondavel."
examination PW2 conceded that the deceased was "feared" by
the villagers who alleged that she was a witch.
Defence made the following formal admissions at the trial namely:
"when confronted by the two accused persons the deceased run
(sic) away to the home of one 'Mankhasi Mashili."
several people found the deceased in her burning house and took her
out of that house.
"the first accused reported himself at Pitseng Police Post in
connection with the death of the deceased".
the first accused was arrested and given a charge of murder by
No.4929 Trooper Mputsoe."
mortem report of the deceased was also admitted by the defence. Death
was due to haemorrhagic shock caused by "multiple
stab wounds 5
on the left breast penetrating the heart. Remarks: Another stab wound
on right breast, burns on the body."
completed the Crown's case.
appellant gave evidence in his own defence as DW1. He did not call
any witnesses. The record does not show that the first
evidence on oath. This is a matter for grave concern indeed in a case
as important as this. It may be that this
was by design or that it
has to do with the unsatisfactory nature of the record of proceedings
itself. The judgment of the Court
a quo however states that the first
appellant gave evidence "under oath." This must therefore
be accepted as the true
state of affairs on the issue.
the evidence of the first appellant that a day after his brother was
killed by lightning his sister, one 'Mamookho reported
to him that
PW1 had informed members of his family that the deceased had killed
his brother with lightning. The first appellant
testified that he was
"hurt" by the report and decided to confront PW1 which he
did at her home in the company of the
second appellant. But before
then they went to "drink" liquor in the village.
to the first appellant's version when they tried to speak to the
deceased she fled. They neither chased nor assaulted
her. Instead he
suggested to the second appellant that they should go to PW2's place
to report that they had gone
deceased "to question her" but that she fled. He emphasises
that they had not gone to the deceased to fight "but
to the death of our brother who had been struck by the lightening
(sic)". PW2 agreed to arrange a meeting between
and the deceased the following day. PW1 also attended the meeting. It
was at this meeting that the deceased told
the Chieftainess (PW2)
that the appellants chased her. He denied ever vowing to kill the
to the first appellant's version PW2 was unable to resolve the.
matter and then passed it on to the Senior Chieftainess.
He once more
denied the alleged vow to kill the deceased and the Senior
Chieftainess adjourned the matter because his witnesses
were not in
attendance. They then left for home where "we passed on to
drink" Sesotho beer at the home of 'Mamakoro Mokhaila
the place at eight o'clock in the evening. It was at this stage that
he suggested to the second appellant "that we
should go to
'Mamookho's (the deceased) place and ask her politely about this
matter" adding "He tried to stop me from
going and I told
him that we were not going to fight."
It is the
first appellant's evidence that he was drunk and that when they
reached the deceased's home they "knocked and she
opened. And I
said to her we haven't come you (sic) in bad face (sic), we just want
to resolve this issue such that nothing will
remain lengthing (sic)
about this story that had been related by 'Mathabo at my home.
Instead of responding to us she insulted
us saying that we were silly
children and she pushed us outside her house, she further said we
were satan (sic) and we will follow
our brother, and my heart was
hurt and I was out of control."
his own counsel what he then did the first appellant testified:
"DW1: At the time that she pushed me I stabed (sic) her with a
the fact that the deceased admittedly had six (6) stab wounds the
first appellant sought to give the impression that he
with a knife only once.
examination the first appellant told the court a quo that he believed
that the deceased had killed his brother with lightning.
however explain why he went to confront the deceased except to say
that he wanted "to know the truth from her."
denied that the deceased was injured on the previous encounter with
him. According to him, PW1 and PW2 are lying on
this issue yet he
cannot say why they should lie in this respect except to claim that
he is surprised. Instead he confirms that
he has never quarrelled
with PW2. Nor can he explain the origin of the weal marks on the
appellant himself confirmed that he confronted the deceased and PW1
at PW2's place about the allegations relating to witchcraft
death by lightning and that they both denied the allegations. Yet
despite these denials he still admittedly went to the
home of the
deceased to "confront"her once more at night and in the
absence of the Chieftainess. In this regard he was
by the Crown Counsel in cross examination:-
"CC: But how else did you expect the matter to be resolved when
the deceased deny ever had (sic) struck your brother by lightening
DW1: I expected it to be solved legally."
appellant cannot explain how he expected the matter to be solved
"legally" at the deceased's home in the cover
the course of his cross examination by Crown Counsel the first
appellant introduced another version that as the deceased
away "we grappled with her." Asked whether the second
appellant also grappled with the deceased he immediately
said "I was still with A2 but I was grappling with the
deceased." It was "at that time that A2 pulled
me away from
the deceased saying that we should leave." In a clear suggestion
that the deceased did not pose any threat to
him the second appellant
was then asked:
"CC: And this is when you decided to stab her? DW1: Yes my
the first appellant seriously deny that he stabbed the deceased six
(6) times all of which were completely unjustified.
He did however
plead provocation and drunkenness. More about this later.
appellant further revealed in cross examination that at the time they
finally left the deceased, she was shouting in her
house and crying
too. He elaborated that she was shouting asking for help. He was then
pertinently asked :
"CC: And you did not help her after having stabbed her six (6)
times? DW1: I did not do so, I left for my home."
He denied that he proceeded to set the deceased's house alight with
the second appellant Significantly, however, he conceded that
crucial time there were only the two of them there. Nor could he deny
that he did not report to anybody about the fact
that he had left the
deceased injured in her house adding instead "this was a
disgrace to me my Lord."
a quo clearly believed the evidence of PW1 and PW2 both of whom
impressed it as truthful and honest. In particular the
Court a quo
believed the evidence in which both PW1 and PW2 corroborated each
other that the accused vowed in advance to kill the
the totality of the evidence in so far as the first appellant is
concerned fully renders the Court a quo's finding
in this regard
justifiable. The first appellant stalked the deceased not only
determinedly but also violently on at least two occasions.
first occasion the deceased fled for dear life but not before she had
been assaulted on her back. This was in broad day
light yet the first
appellant admittedly went back to the home of the deceased at night
thus prompting the Court a quo to pose
the question in its judgment:
"How did the accused think that a person who ran away from them
at day time because she was
afraid of them could discuss a serious
matter with them at night? No, they did not go there in order to
discuss anything but to
kill her as they had vowed to do so."
Indeed in so far as the first appellant was concerned this was more
so since at that
stage the matter was already in the hands of the
Senior Chieftainess and for that reason the Court a quo was frilly
concluding that there was altogether no reason why the
accused went to the deceased's home to discuss a matter that was
pending before the Chieftainess.
first appellant's conduct in proceeding to the deceased's home at
night, armed with a knife, "to confront her"
for the second
time must be weighed against the fact that the Senior Chieftainess
who was a person in authority had by that stage
already warned the
appellants from setting their feet on the deceased's premises.
Significantly this evidence was elicited by the
counsel in the cross examination of PW1 (Record: page 23-24) in the
following terms which merit quotation in full
even at the expense of
overburdening this judgment:
"DC: You told this court that at the Chiefs place someone
praised himself that he is going to kill the deceased? PW1: Yes.
Who was this? PW1: Mosehle DC: Where?
PW1: At Ha-Letsie at the Chiefs place. DC: Where was the Chief? PW1:
Present. DC: Which Chief? PW1: Chieftainess 'Majoele. DC:
person who was there? PW 1: Yes, there were many people.
DC: And what did the Chieftainess said (sic) about this if it is
true? PW1: She hadn't finished it. DC: We heard that, what did
say when she heard that the accused says (sic) he would eventually
kill the deceased? PW1: She responded by saying that she
hear them to have steped (sic) on that forecourt. DC: Which one? PW1:
a quo came to the conclusion that if a person expresses his intention
to commit an act which amounts to a criminal offence
and a few hours
thereafter carries out the act then his intention is very clear.
While each case must certainly depend on its own
peculiar facts and
circumstances the Court a quo was justified in taking into
consideration the fact that the first appellant had
earlier vowed to
ultimately kill the deceased which vow he actually carried out hence
demonstrating in practical terms that it
was just not an empty
threat. On the totality
facts in this matter therefore the approach of the Court a quo cannot
be faulted. This was a classical case where the intention
to kill was
proved by the expressed words and deeds of the accused himself.
Indeed in stabbing the screaming defenceless woman
six (6) times with
a knife in the vital part of the body namely the chest area, the
first appellant must have realised that he
was killing her. He did
not even offer her any help even after she was totally injured but
simply vanished from the scene. All
these factors as fully set out
above are consistent with a pre meditated intention to kill which was
for that matter expressed
in words before the killing.
phenomenon of accused persons publicly declaring their intentions to
kill other human beings and carrying out such vows as a
fact is sadly not new in this country. See for example Blyth
Monanthane v Rex 1978 LLR 447 per Maisels P. That was a
case in which
before killing the two deceased persons namely a European and a
Mosotho the accused had said "Today I am going
to kill a
European and a Mosotho" and on being asked what they had done to
him he stated that they wanted to "spoil"
his work. Like in
the instant case he thereafter carried out his expressed intention by
pushing the deceased (a European and a
Mosotho) off the top of the
building and thus killed them. He was duly convicted of murder
without extenuating circumstances and
sentenced to hang. Both
conviction and sentence were confirmed on appeal.
factor that renders Blyth Monanthane v Rex (supra) substantially
similar to the present case is that the accused in that
drank liquor and smoked dagga. Like in the instant case he then
pleaded drunkenness but the trial court found that his
merely to provide him with dutch courage to perpetrate the intended
crime and that on the facts his faculties were
extent that he was able to operate the crane shortly before causing
the death of the deceased.
in the instant matter the first appellant claimed at the trial that
he was drunk he was disbelieved by the court a quo
which made a
finding that this was a lie. This appellant did not call any
witnesses to support his claim that he had been drinking
and that he was drunk. There is not even any evidence to show what
quantity of Sesotho beer, if any, he drank nor
is there evidence to
show that if he drank at all he was so drunk as not to know what he
In a well
motivated reasoning the Court a quo dealt with this aspect of the
matter and properly rejected the allegation of drunkenness
the following on page 10 of its judgment:
"To show that they were not drunk at all they surreptitiously
went to the home of the deceased, making sure that no person
them. Having killed the deceased and set her house onfire they
vanished into thin air. So that when the people, including P.W.2
rushed to the home of the deceased when the alarm was raised the
accused had left in agreat hurry and were not found near the burning
house. Their arrival there and their departure were well planned. No
drunken men would do that."
the Court a quo rightly held that if the appellant drank beer at all
it was for Dutch courage needed for the implementation
intention to kill the deceased.
previously stated not only did the first appellant plead drunkenness
but he also pleaded provocation. Moreover it will be recalled
is first appellant's evidence that the deceased insulted him and that
he was "hurt." His typical
in this regard in cross examination was "I seem to be drunk and
angry it wasn't my intention" (Record; page
convenient then to examine the provisions of Sections 3 and 4 of the
Criminal Law (Homicide Amendment) Proclamation No.
42 of 1959.
Section 3 thereof provides as follows-
"3( 1) A person who -
kills another under circumstances which but for the provisions of
this section would constitute murder; and
the act which caused death in the heat of passion caused by sudden
provocation as hereinafter defined and before there is
time for his
passion to cool; is guilty of culpable homicide only.
3(2) The provisions of this section shall not apply unless the court
is satisfied that the act which causes death bears a reasonable
relationship to the provocation."
of the Proclamation defines "provocation" as follows :-
"4(a) The word "provocation" means and includes,
except as hereinafter stated, any wrongful act or insult of such
nature as to be likely when done or offered to an ordinary person or
in the presence of an ordinary person to another person
who is under
his immediate care or to whom he stands in a conjugal, parental,
filial or fraternal relation or in the relation of
master or servant,
to deprive him of the power of self-control and to induce him to
assault the person by whom the act or insult
the purposes of this section the expression "an ordinary
person" means an ordinary person of the class of the community
to which the accused belongs."
reading of these sections has left me in no doubt that for an accused
benefit thereby he must have killed in the heat of passion caused by
sudden provocation before there was time for his
passion to cool.
There must be evidence that the act of provocation relied upon was
likely to deprive an ordinary person of the
power of self control and
to induce him to assault the deceased.
facts of the instant case it is clear that nowhere did the deceased
say to the first appellant that she had killed his brother
lightning. At any rate by the time this appellant confronted the
deceased for the second time on the fateful day enough time
passed for the first appellant's passion to cool after a report had
been made to him implicating the deceased in the death
brother. It follows then that the Homicide Proclamation cannot avail
the first appellant in this respect.
Mokhali v Rex C of A (CRT) No.2 OF 1989 (unreported) the accused had
"proceeded to chase the deceased, in a state of
anger" eventually shooting him several times. The accused then
sought to rely on the provisions of Sections 3
and 4 of the Homicide
Proclamation. In confirming the conviction of murder, Mahomed JA, as
he then was, expressed the position
in the following terms with which
I am in respectful agreement:-
"'The circumstances of the "provocation'* proved by the
facts in this matter were not such as to make it likely that
"ordinary person" in the position of the appellant would so
lose his self-control as to be and be induced to kill
the deceased or
to perform acts of so serious a nature as to carry with it an
appreciated risk of death ensuing. Such "an
would on the facts, have had enough time for his "passion to
cool" sufficiently before he attempted
an act as serious enough
as the killing of the deceased. Moreover the act of killing the
deceased in these circumstances does not
"bear a reasonable
relationship to the provocation" within the meaning of Section
with a similar situation in Likhetho Nkoli v Rex C of A (CRI) No.
1988 (Unreported) Trengove JA considered two main factors in
confirming the conviction for murder namely:
is no evidence that on the afternoon in question the appellant was
not in his sound and sober senses." One has
a similar situation
appellant's action was not an entirely impulsive act, on the
blinding spur of the moment, leaving him no time to think of
possible effect. The appellant had been following the deceased and
PW2 and he started attacking the deceased as he caught
them," (Emphasis added).
has a similar situation here.
of Mona and Another v Rex 1985-89 LAC 364 per Schutz, P (as he then
was) (in which both Mahomed JA (as he then was) and
concurred) probably raises a stronger case of provocation than the
instant case. The appellants had been convicted
of murder without
extenuating circumstances by the High Court and sentenced to hang for
having "slaughtered" four women
whom the believed were
witches responsible for the death of the 1st appellant's father by
witchcraft. There was evidence that at
least four of the deceased had
taunted the 1 st appellant in the face that they were indeed
responsible for his father's death
and that the appellant's clan
needed to be reduced in numbers as they were too many. On the
following day one of the victims repeated
the taunt to the 1st
appellant adding that his father was there at the caves and that he
should go and fetch him. This sparked
off merciless beatings of the
victims to death.
the fact that Schutz, P (as he then was) was satisfied that "the
appellants acted with great brutality, using sticks,
burning down a
hut with one of
victims inside it, and in some cases using a knife to finish off what
the sticks had not accomplished" the learned President
came to the conclusion that the crime of murder had been proved.
Accordingly the verdict of murder was confirmed but extenuating
circumstances were held to exist by virtue of the appellants' belief
remains then to consider the "insult" that the first
appellant claims was made by the deceased on the fateful night.
Indeed Mr. Teele for the appellant has relied heavily on the fact
that the appellant's evidence that the deceased threatened them
death was uncontradicted. The trial court rejected the appellant's
story as not only improbable but also as false and in doing
pointed to the following factors:
"The deceased was afraid of them (the accused) as she clearly
showed this at daytime when she ran away from them. To say that
the accused arrived at her house at night she was bold enough to
confront them and to push them out of her house and to threaten
with death by saying that they would follow their late brother, is
not only improbable but a mere pack of lies. They went
there with the
sole intention of killing the deceased."
all of the aforegoing factors in this case the approach of the court
a quo cannot be faulted. The appellant had already
made a murderous
attack on the deceased who, as earlier stated, fled for her dear life
without so much as raising an insult. That
was in broad daylight. As
stated above the appellant once more "'confronted" the
deceased using the cover of darkness.
Hence the court a quo was
justified in concluding that the first appellant did not meet her by
chance but per design. This after
he had on several occasions
expressed his intention to kill the deceased.
regarding the accused's explanation it is correct to say that the
test is not whether the explanation that he gives is true
it may possibly reasonably be true. Conversely the test is not
whether the court subjectively disbelieves the accused
nor does the
court have to reject the case for the Crown in order to acquit the
accused. It remains the duty of the court throughout
whether the defence case is so demonstrably false or inherently so
improbable as to be rejected as false.
R v Difford l937 AD 370.
S v Singh 1975 (1) SA 227 at 228 per Leon J (now Judge of our Court
S v Kubeka 1982 (1) SA 534 at 537.
S v Jaffer l988(2)SA84.
S v Munejai 1986 (4) SA 712 at 714.
facts of the instant case and in so far as the first appellant is
concerned the court a quo carefully analysed the evidence
the allegation relating to drunkenness and provocation. The Court a
quo rejected the defence story as false and came
to the conclusion
that the attack upon the deceased and indeed her killing was
premeditated. For reasons fully set out above the
conclusion of the
Court a quo was clearly warranted by the facts and as such cannot be
follows from the aforegoing that the Crown succeeded to prove its
case beyond reasonable doubt and that accordingly the appeal
the conviction of murder in respect of the first appellant stands to
appellant's conviction on this count was based on circumstantial
evidence and in this regard the Court a quo stated the
inference to be drawn from the evidence is that they (the accused)
set her (deceased's) house alight immediately after
The Court a quo rejected, as mere speculation, the defence suggestion
that other people who hated the deceased
were likely to have set the
house on fire.
pertinent to bear in mind in this regard the two cardinal rules of
logic as set out by Watermeyer JA in the leading case of
R vBlom 1939
AD. 188 at 202-203 namely that:-
"(1) the inference sought to be drawn must be consistent with
all the proved facts. If it is not, then the inference cannot
proved facts should be such that they exclude every reasonable
inference from them save the one to be drawn. If they do not
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct."
burning down of the deceased's house must be considered in the light
of the first appellant's premeditation and vow to ultimately
deceased. He was obviously determined to carry out his expressed
intention to the extent that he was not daunted by the
fact that his
intended victim the deceased escaped and outran him in the first
attempt. Nor is that all. The deceased was heard
crying out for help
and mentioning the name of the first appellant in the process. People
rushed to her aid only to find her house
ablaze. There is undisputed
evidence that they assisted the deceased and pulled her out of the
burning house (Record page 40) -
a fact which the defence duly made a
formal admission of as shown above. This clearly belies the defence
suggestion that people
who hated the deceased could have set her
house on fire. This suggestion in my view is not reasonably possible
in the circumstances
of the case but is pure conjecture.
the first appellant admitted in cross examination (page 97 of record)
that at the crucial time when the deceased's
house was set on fire
there were only the two appellants and the deceased at the scene. The
cross examination was as follows:-
"CC: witness has came (sic) and testify before this Court when
the alarm was raised and the deceased was crying for help there
flame (sic) already.
lord we were not there at all moreover the deposition at the
Magistrate Court said that there were many people at the kraal
don't know what could have happen (sic).
you have testified before this Court that at the crucial time there
was only you, the second accused and the deceased at
DW 1: Yes
at that time we were only two my lord."
follows from the aforegoing, in my judgment, that the only reasonable
inference to be drawn from the peculiar circumstances of
this case is
that the first appellant set the deceased's house on fire after
fatally stabbing her and leaving her inside the house.
inference is clearly consistent with the first appellant's
premeditated and declared intention to kill the deceased. See
and Another v Rex (supra).
accordingly follows that the finding of the Court a quo that the
first appellant is guilty of the crime of arson in count II
faulted. The appeal on this count also fails.
result the appeal of the first appellant on both counts is dismissed.
earlier stated it is the sentence that has given this Court anxious
moments. It seems incorrect that despite the fact that The
appellant was convicted on two counts namely murder and arson
respectively he was nonetheless sentenced to nine (9) years
imprisonment without specifying which count he was being sentenced
for. In these circumstances this Court is obliged to interfere
rectify the sentence passed by the court a quo.
the sentence in respect of the first appellant is altered to read:
Nine (9) years' imprisonment. Count II: Five (5) years' imprisonment.
Both sentences to run concurrently.
against the Second Appellant
a quo based its conviction of the second appellant purely on the
principle of common purpose. That court was also of the
view that the
second appellant told the crown witnesses that his intention was to
help the first appellant, his cousin, in the
killing of the deceased.
relying on common purpose as it did the Court a quo quoted the
following passage from South African Law and Procedure, Vol. 1
Burchell and Hunt p364:
"Association in a common illegal purpose constitutes the
participation - the actus reus. It is not necessary to show that
party did a specific act towards the attainment of the joint object.
Association in the common design makes the act of the
offender the act of all. Such association need not be express, it may
be implied from conduct. Becoming a member of a
band with a common
intention to kill coupled
with presence at the scene of the killing would attract liability."
always be borne in mind however that the modern approach is that
there is no magical power contained in the doctrine of
and that where there is participation in a crime each of the
participants must satisfy all the requirements of the
the crime in question before he can properly be convicted as a
co-perpetrator. Such was the view of the Appellate
Division in S v
Williams 1980 (1) SA 60(A) at 63; S v Maxaba 1981 (l) SA 1148 (A) per
Viljoen JA; S v Khoza 1982 (3) SA 1019 (A)
salutary for courts then to exercise some caution to ensure that
innocent persons are not convicted for crimes committed by
such is the inherent danger of the doctrine of common purpose.
be recalled that the Crown in the instant matter called only two
witnesses namely PW1 'Mathabo Mathabi and PW2 'Masesu Mashili.
in her evidence in chief PW1 initially implicated both accused by
stating that they praised themselves saying that they
ultimately kill the deceased she immediately retracted and indicated
that it was Mosehle the first appellant who said these
cross examination by defence counsel PW1 consistently maintained her
evidence that it was the first appellant who expressed
to kill the deceased. Thus for example she was asked the following
questions on page 23 of the record:-
"DC: You told this court that at the chiefs place someone
himself that he is (sic) going to kill the deceased?
DC: Who was this?
procedurally incorrect for this witness to be allowed to give a
totally fresh version in re-examination by stating that the
appellant told the chieftainess that he was going to "help"
his brother at the deceased's place. Defence counsel's
this new piece of evidence was to no avail. It seems to me that it
was unfair and prejudicial to the second appellant
to lead this fresh
piece of evidence in this manner at that stage since it clearly did
not arise from cross examination and more
especially since the
defence counsel was not given an opportunity to cross examine on the
issue at all. I would accordingly ignore
this piece of evidence. In
any event it was not even explained what "help" PW1 was
referring to. To that extent the evidence
was colourless. Yet in its
judgment the Court a quo stated the following "in re-examination
PW1 said that A2 had said that
he would help Al in the killing of the
deceased." This finding was not supported by the evidence. As
indicated above the record
does not show that the words "in the
killing of the deceased" were used at all.
in my view it was a misdirection for the court a quo to state as it
did on page 4 of its judgment that "PW1 says
that at the two
meetings of the chiefs the accused said that they would eventually
kill the deceased for the death of the brother
of Al.'" The
record does not reveal PW1 ever saying that in so far as the second
appellant is concerned.
not take the Crown's case any further in so far as the second
appellant is concerned. Although she too initially implicated
second appellant by stating that he reported to her that he had
chased the deceased with the first appellant and that they
wanted to kill her she like PW1 later changed her version and only
implicated the first appellant while exonerating the second
appellant. This was in answer to Crown Counsel's examination in chief
as follows (record page 36):-
"CC: Who said these?
PW2: The accused.
CC: Both of them?
PW2: Mosehle Maboka.
CC: That is the first accused who said that?
CC: What about the second accused?
PW2: He was quite (sic)".
The last word "quite" is obviously a spelling mistake.
There can be no doubt that the intended word was "quiet".
In fact in cross examination (record page 54) PW2 maintained that the
second appellant never said anything although she had attempted
suggest both appellants spoke simultaneously. In her own words she
had earlier said (record page 54) "I am saying at that
spoke, if these people come to (sic) and speak simalteniously (sic)
would I hear anything."
any lingering doubt on whether the second appellant said anything by
way of a vow to kill the deceased or at all PW2 was
once more asked
the following questions in cross examination (record: page 56):-
"DC: And did anyone vowed (sic) to kill the deceased?
DC: Who was that?
DC: Did accused 2 said (sic) anything?
PW2: No he did not say anything."
follows from the aforegoing that the evidence of PW1 and PW2 was far
from harmonious and or satisfactory in so far as the second
was concerned. The evidence was full of contradictions.
each of the two witnesses ended up by conceding that the second
appellant was quiet and did not utter any threats
to kill the
deceased. At the very least the court a quo should have entertained a
reasonable doubt in so far as the second appellant
was concerned even
if the court was impressed with the honesty of the witnesses for it
is not uncommon for a witness to be honest
and yet mistaken.
further follows from the aforegoing that the finding by the court a
quo that the second appellant also "publicly expressed"
intention to kill the deceased is a grave misdirection.
page 10 of its judgment the court a quo made the following finding
namely that "they (both accused) stabbed her (the
times on the left breast and all those wounds penetrated the heart.
They knew very well where the deceased was most
fact of the matter is that there is absolutely no evidence that the
second appellant ever stabbed the deceased.
Once more the finding of
the court a quo on this issue is with respect a clear misdirection.
finding that the second appellant did not stop the first appellant
from going to the deceased's house at night and that he
did not stop
him during the stabbing of the deceased. This finding overlooks the
uncontradicted evidence of the first appellant
to the effect that "he
(the second appellant) tried to stop me from going and I told him
that we were not going to fight."
On top of this there is no
evidence on record to even remotely suggest that the second appellant
was aware that the first appellant
was armed with a knife or that it
might be used.
on page 20 of its judgment the court a quo appears to have viewed
with disfavour the fact that the second appellant did
evidence in his own defence. The court expressed itself in the
"In any event he (the second appellant) has not even given
evidence before this court to explain his non-participation in
act. He wants this court to accept the evidence of Al which I have
rejected outright as nothing but a pack of lies."
respect there is no onus on an accused person to prove or explain his
innocence. This is so because the onus remains on the
throughout to prove its case beyond reasonable doubt. In this regard
I am mainly attracted by the remarks of Williamson JA
in S v Mini
1963 (3) SA 188 (A) at 196 in the following terms:-
"No onus can be cast on an accused to give evidence in
explanation and a failure to given an explanation never amounts to
failure to discharge an onus. If the facts indicate that an accused
in all probability must have intended to kill, a failure
why such inference should not be drawn may, when thrown into the
balance, convert a strong inference into a necessary
certain circumstances. But where a failure to give evidence may be
due to factors other than a realisation of guilt
on a charge of
murder, it cannot in circumstances like the present be of any real
value in strengthening the inference to be drawn
facts. In my view, the fact that the appellant in this case did not
enter the witness box,
went no distance towards assisting the State to prove intention to
all of the aforegoing considerations it follows in my judgment, that
there must be a reasonable doubt about the guilt of
and that accordingly the Crown failed to prove its case beyond
reasonable doubt against this appellant.
like to record at this stage that in this Court Miss Maqutu for the
Crown very fairly and properly conceded that the Court
a quo erred
and misdirected itself in finding the second appellant guilty on both
counts and that the Crown was unable to prove
beyond reasonable doubt
that the second appellant had common cause with the first appellant.
I have no doubt that if this concession
had been made before the
trial court it would have been of great assistance to that court.
result the appeal of the second appellant is allowed. Both
convictions and sentence against the second appellant are set
result I would order that:
appeal of the first appellant against his convictions on both Counts
1 and 2 is dismissed.
sentence in respect of the first appellant on Count 1 is altered to
read "Nine (9) years' imprisonment,"
sentence in respect of the first appellant in Count II is "Five
(5) years' imprisonment.'1 Both sentences to run concurrently
appeal of the second appellant against his convictions
1 and 2 is upheld and the sentence of Nine (9) years' imprisonment
imposed against the second appellant is also set aside.
at Maseru this 13th day of April 2000.
Appellant: Mr. Teele
Respondent: Miss Maqutu
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