HIGH COURT OF LESOTHO
RAMOEPANA MOSOEU RAMOEPANA
Delivered by the Hon. Mrs Justice A, M. Hlajoane on 6th August, 2003.
accused had been indicted before this Court jointly with her husband,
accused 2, on two counts of murder, one count of
attempted murder and
the last count of malicious damage to property. The second accused
passed away in May 2000 and the trial proceeded
1. it was alleged that upon or about the 28th day of September 1996
and at or near Hleoheng, in the district of Leribe,
the said accused
did each, the other or both of them unlawfully and intentionally kill
II, it was alleged that upon or about the 28th day of September, 1996
and at or near Hleoheng in the Leribe district, the
said accused did
each, the other or both of them unlawfully and intentionally kill
III, it was alleged that upon or about the same, date and year as in
above counts and at or near Hleoheng in the Leribe
district the said
accused did one or the other or both of them unlawfully and with
intent to kill, assault Matseuoa Ramoepana by
shooting her with a
firearm on her body.
the last count, count IV it was alleged that upon or about the same
time and place as in the other preceding counts, the
one or the other or both of them did unlawfully and intentionally
injure and or damage the door and windows of the
house belonging to
one Malefetsane Ramoepana, the property or in the lawful possession
of the said Malefetsane Ramoepana with intent
thereby to injure the
said Malefetsane Ramoepana in his property.
going; into the evidence in this case I may wish to state briefly the
events as slated by the Crown that are a sequel to
this trial. There
were two accused persons charged in this case, who were husband and
wife. The other accused, accused's husband
has since passed away. The
two deceased persons in this case were husband and wife. As can be
seen from their surnames, the accused
persons and both deceased
relatives staying in the same village. So far so good with this
highlight. The charges were put to the accused and she pleaded
guilty to all four and this was in accordance with her counsel's
of Section 227 of the Criminal Procedure and Evidence Act 9 of 1981,
evidence at the Preparatory Examination (PE) of P.W.I
Ramoepana, P.W.3 Mahlomola Ramoepana, P.W.6 who was also P.W.12 Ketso
Ramoepana, and P.W.10 Lt/Col. Telukhunoana were
admitted by the
defence and accepted by the Crown. The depositions were read into the
machine to form part of the record in this
P.W. 1 at
the PE, Ramoepana Ramoepana had told the Court that, he resided at
Tabola in the Leribe district. He stayed at the separate
that of the accused though he was related to the accused in this
case. The deceased used to stay with the accused
in one village,
their house's i.e. accused's and deceased's, being only 40 metres
apart with no other houses between them.
the oldest person in the Ramoepana family. He had not received any
complaint from any member of the Ramoepana family prior
September, 1996. He received some information in September 1996 about
the deceased's death. Following that information
he proceeded to
deceased's place where on entering the house, he observed blood on
the floor. He also observed holes on the walls,
gunshot's holes. From
the deceased's place, the witness proceeded to the accused's place
but did not find anyone at home.
It was on
the 2nd October, 1996 when the witness identified the bodies of the
two deceased persons at Hlotse Hospital as being that
of husband and
wife, Maleletsane Ramoepana and 'Manthuseng Ramoepana respectively.
admitted evidence was that of P.W.3 at the P.E proceedings, Mahlomola
Ramoepana, who had told the Court that as a villager
of Ha Monyane
where both deceased lived, he knew both deceased in this case as his
relatives. He remembered that in 1996 accused's
Ramoepana was a member of LDF. His home was adjacent to that of the
the events of this case, the witness had received some information
concerning the fight over a field. As a family they
had resolved that
it was wrong that the field in issue had been given back to the
headman. The accused and both deceased persons
had been before the
Courts of Law about the same field and the Court had decided in
favour of the deceased.
September of 1996 the witness had received some information which he
followed and proceeded to the scene of crime. When
he got there he
found the accused's husband standing at the forecourt at the
deceased's place with a firearm in his hand. Accused's
advised the witness to go back to his home and the witness tried to
resist but was eventually advised to obey the order,
and did go back
to his home. At that time the witness did not see the accused in this
case. The witness had been standing 4m away
from deceased's home and
said the door for the house was left open and the windows were
way hack home the witness met a group of people going to deceased's
home. He joined the group and went back to deceaseds'
time he entered the deceaseds' home and found 'Manthuseng in the
house in a pool of blood. She was already dead. Her
husband was also
on the floor but was still alive. Their daughter was there also, very
confused and had also sustained injuries.
The matter was reported to
worth mentioning at this stage that it had been stated earlier on
that the evidence of P.W.3 Mahlomola Ramoepana at the PE
was going to
be admitted but it came out that as the evidence was read into the
machine some problems surfaced. The problem entailed
a witness who
when his evidence was recorded by the Magistrate had not been called
by his name but as Prosecution witness so and
so, P.W.3. This
necessitated the Crown to apply for calling that witness to come and
clarify the identity of the person not called
by name but as P. W.3.
This was objected to by the defence who felt that they were only
going to be allowed and restricted to cross
examining that witness on
the issue of identity only.
on the other hand pointed out that the witness could be cross
examined on anything and not be confined to the identity
witness only. The Court allowed the witness to go into the witness
box to give his evidence. After he had given his evidence,
defence then indicated that they were no longer admitting that
evidence at PE.
deposition of P.W.10 at the P.E Lt/Col. Telukhunoana was also
admitted and read into the machine. His evidence was that, he
at Leribe at the time of the
of the P.E. He was stationed at Police Headquarters in 1996. One of
his duties was to carry out ballistics tests on firearms
have been used in criminal activities. He had been given Exh "1"
(9mm pistol) and Exh "2" (dead
bullets and shells) by
Police Officer Motloli for tests. He duly carried out the necessary
tests after which he prepared a report.
The report was read and
explained to the accused, and was handed in as an exhibit and was
marked as such. The witness had told
the Court that it was possible
that a bullet could be affected by the skull. Also that the firearm,
Exh "1" could shoot
at a distance of 50 metres. And that
that firearm was a powerful one especially if the target was close.
reading the admitted evidence the Crown called in P. W. 1 Dr Isaac
Molefi Seqhobane, who after he was sworn-in had told the
before he was transferred to Thaba-Tseka as a Medical Doctor, he was
working at Motebang Hospital in Leribe. He left
Motebang Hospital in
2000. As a district Medical Officer he was doing other administrative
duties. He was custodian of hospital
property which included records.
looking at the documents he had been given by the Crown, the witness
showed that the two documents were post-mortem examination
for Maleletsane Ramoepana and 'Manthuseng Ramoepana respectively. The
witness further showed that the first report had
been prepared by Dr
Sane on the 2nd October, 1996. The report showed that the deceased
died of a gunshot wound on the abdomen (Intra
According to the report death occurred on the 28th September. 1990.
second report related to 'Manthuseng Ramoepana and was prepared by
the same doctor. Unfortunately the report had not shown when
had occurred. The cause of death was due to a gunshot wound anterior
part of the neck, the wound which went through the throat
blood to flow into the trachea. The doctor who prepared the reports
was no longer within the country. The doctor claimed
that since the
reports were from his office he wished to hand them in as part of his
evidence. The reports were handed in as exhibits
and marked as such.
reports which were also handed in by the witness were the three
Police Medical forms styled LMP 47. The first one related
'Mapelaelo Ramoepana. The report showed a 2cm wound on the right arm,
a 2cm wound on the right hand, also a 2cm wound above
the right knee.
It was shown that a sharp instrument could have been used to cause
the injuries. The patient had been examined
by Dr Ntene.
second report related to Mosoeu Ramoepana and showed multiple scalp
lacerations. 5cm laceration frontal region, 5cm laceration
right parietal region, 3cm laceration left forearm. The report had
been prepared by Dr Mokhesi.
report was that of 'Matseuoa Ramoepana which showed an entry wound on
side of the chest with exit on the left side of the chest, 5cm from
the midline. Another wound was behind the left ear
and was a gun shot
wound. The patient was attended by Dr Ntene. All these reports were
handed in as part of the evidence and were
marked as such.
Palaelo Ramoepana told the "Court that she was the daughter to
the accused person. She was from a feast on the day in
other people. She had seen one 'Matumelo running and also remarking
about a fight between the deceased, Malefetsane
and Mosoeu (accused's
husband). As she heard that, the witness ran to her home calling out
to her mother, whom she did not see
at the time.
witness then went to where the fight was taking place and when she
got there she found the deceased, 'Manthuseng and Malefetsane,
husband, both assaulting accused's husband, Mosoeu Ramoepana.
'Manthuseng was using a sword whilst her husband was only using
to P.W.2. the accused arrived when the fight was already on. The
deceased, Malefetsane fired and the accused then went
back to her
home and collected a firearm. The accused then fired twice in the
air. The witness could not see what happened thereafter
as she left
for her grand-mother's place.
examination, the witness showed that she was very confused on that
day as a person who easily gets confused when unusual
She even confessed that she would usually lose her good judgment
under such circumstances.
evidence, 'Maneo Ramoepana was to the effect that she was the
maternal aunt to both deceased persons, and the grand-mother
accused. She had been invited by the deceased Malefetsane to his
place for some beer. Since the witness was from a feast,
already drunk. She however could still remember that she had seen
both deceased enter their house after she was already
seated in their
evidence went further and showed that the deceased locked the door
after they had entered the house. She then saw the deceased
'Manthuseng, pass over to the bedroom and as she did that, the
witness heard a gun report from the rear window outside the house.
She then took refuge under the table. She then heard another gun
report at the bedroom window, still outside. After the third gun
report, the witness heard the accused remark that she had run out of
bullets. According to this witness, that was the time that
the deceased Malefetsane to open for her so that she could leave lor
showed that she did not know as to when 'Matseuoa Ramoepana had come
into the house. She only saw her come out from the bedroom
and hide under the table in the kitchen. Indeed the deceased
Malefetsane opened the door for P.W.3 who left for her home
both deceased persons and 'Matseuoa in the house. When she got to the
outside, she only thought of running to her home
where she went
straight to bed and slept without reporting to anyone.
visited the scene the following day in the morning, only to find the
deceased 'Manthuseng, dead in her bedroom. She could
that the windows for deceased's house were broken.
cross-examination. P.W.3 showed that she was drunk on that day as she
was from a feast where she had taken both sesotho beer
and beer. The
witness indicated that she sobered up as she heard the gun reports.
to P.W.3 the accused never got into the house whilst she was there,
but that accused were shooting from outside. In all
fairness to her,
the witness showed that she did not see the accused shooting but only
heard gun shots. She only heard the accused's
voice as she claimed
that she had run out of bullets. The witness had seen the accused
disappear from the window of the kitchen.
Ketso Ramoepana in his evidence showed that the deceased persons in
this case were his parents. On the day in question he
was from work
and learned when he got home that there was a commotion in the
village. He met people driving another person in a
close check he realized that the person driven was his sister who was
covered in blood. The witness was in a vehicle
when he observed all
witness did not know what had happened, but when he got home he found
his father. Malefetsane lying in a pool of blood in the
he was still alive. He observed injuries on the face and body of the
deceased. The witness showed that the deceased
could still talk but
with a low voice. The only words that he heard was when deceased told
him that he was tired, and as he was
saying that he (deceased) called
out P.W.4's name.
witness then went into the bedroom going to get something to put on
light in the house as it was gelling dark. The witness found
mother, 'Manthuseng in the bedroom and he said he could realize that
she was dead. Police van arrived and Malefetsane was taken
hospital. 'Manthuseng was left there for the whole night. Police came
again in the morning and took photos of the scene and
according to the witness, holes all over her body. The body was then
taken away by police.
to P.W.4 there were holes all over in the house, on the units,
wardrobe and the windows too were broken. It was P.W.4's
that the source of the quarrel between the deceased persons and the
accused was a field. He showed that the case was taken
Courts of Law and his father, the deceased won the case. The witness
handed in the judgment from Tsifalimali Central
to support his
statement about his father winning the case. The judgment was handed
in as an exhibit and was marked as such. In
witness clearly showed that he did not know what could have sparked
the confrontation for that day as he
was not there when it started.
'Matseuoa Ramoepana after she was sworn-in told the Court that both
deceased persons in this case were her parents, and that
home is near to her home. The witness told the Court that she was
still at home on the day in question, visiting a place
not far from
her home. As she was there, she heard the husband to the accused
calling out to the accused to bring him his gun so
that he could go
and shoot at Malefetsane, who is P. W.5's father. The witness showed
that as accused's husband said these he was
at their home where P.W.5
could still see them.
witness had earlier left her father at home and as she heard the
accused's husband say those words, she left in an effort of
look for her mother to inform her of what she had just heard. She did
find her and reported to her. Her mother in turn
asked her to go and
tell her brothers where they were at a feast. Her
to look lor her brothers were without success. She then decided to go
then said, as she entered the gate, she heard a gun report and the
sound came from accused's home. She found both her parents
the house with one Nkhono 'Maneo. They all rushed into the house on
the sound of the gun report and locked themselves in.
As the shooting
continued, the witness and Nkhono 'Maneo hid under the table in the
kitchen, her father stood at the door and her
mother went into the
bedroom. The witness also heard window panes being broken. They
eventually went into the bedroom all of them
during the shooting. As
the witness passed near the window she saw the accused with a gun in
her hand and she fired a shot which
hit the witness between the
breasts. It was the rear window of the kitchen. The witness fell down
still in the kitchen. Her mother
came and took her to under the bed
in the bedroom, and all four of them were under that same bed.
shootings continued even on the front part of the house and the
window panes were broken. The property in the house was hit
bullets. The witness heard accused swear that the two deceased
persons were not going to see the end of that day still living.
according to P.W.5 confirmed that it was in fact the accused who was
shooting. There was a pause and accused was heard saying
going to reload the gun.
that interval Nkhono ' Maneo asked to be allowed to leave for her
home. Malefetsane. P.W.5's father opened the door for her
left. The door was again locked with three people inside the house.
'Maneo had left the shooting resumed. The witness then heard the door
leading to the outside being hit with a heavy object
forcing the door
which had been locked to open. P.W.5 then saw the accused enter the
house. The witness was still lying under the
bed. In explaining how
she felt after she was shot, the witness said she felt as though
there was dust inside her stomach and she
the accused enter the kitchen, passing over into the bedroom where
they were. As she got in there she started firing directing
to under the bed. It was P.W.5's evidence that as the shooting by the
accused continued she noticed her mother lying
Accused's husband also entered the house and as he entered he too
started shooting. According to the witness,
when accused and her
husband realised that they had shot all of them and that her mother
was dead, they both went out of the house.
The witness felt something
on her ear and as she touched it, she discovered that she had also
been shot on her ear. The witness
had gone further and showed that
from where she was under the bed she could still see people entering
both the accused and her husband had left P.W.5 realised that both
her parents had injuries which were bleeding all over.
had said she did not believe that the accused and her husband saw
where she had hidden under the bed without explaining
further why she
had such a belief.
evidence went further to show that after the accused and her husband
had left, P.W.5 went out of the house leaving her parents
She could not remember what happened thereafter except that one lady
came and held her. The witness had
out and when she finally came to she was in hospital where she spent
three days. According to P. W.5, her family and that
of the accused
were not in good terms prior to the day of the incidents. The source
of their quarrel was a field.
cross-examination, P. W.5 was taken to task concerning the evidence
that she had given at the P.E but she insisted on saying
she saw the
accused holding a firearm whilst she (accused) was still outside and
that she was shooting. It would seem that the
witness at the P.E had
said the accused and her husband were standing at the forecourt of
her (P.W.5) home as they were shooting,
but before this Court she
told the Court that the accused and her husband were still at their
home when they started shooting.
examination also revealed that the witness never told the Magistrate
at the P.E stage that the accused also shot her on
the chest as she
passed near the window. The witness had further told the Court that
though she was frightened by the shooting
her right judgment remained
unimpaired. It was also put to the witness that in fact her deceased
parents were the ones who started
the fight, but the witness replied
by showing that she was not aware of that. It was also indicated
under cross examination that
her deceased parents had assaulted the
accused's husband and this was a surprise to the witness.
P.W.5 said she did not observe anything, it had been put to her that
one 'Matumelo, who was accused's neighbour was going
to say that she
witnessed the accused breaking the deceased's windows whilst the
accused's husband was shooting. What the witness
testified to was
that she had seen both the accused and her husband
According to P.W.5 accused was only 5 paces away from them as she
continued shooting inside the house. P.W.5 was facing
accused as she hid under the bed. The cross examination revealed
further that the accused would say she had a gun in
whilst she was still outside which gun was later taken from her by
explained further that she had seen the accused's face when she was
firing through the window and could even see how the accused
dressed. But when accused was inside the house firing, she could not
see her (accused's) face but only identified her by her
she had already seen how she was dressed. She only saw her up to the
chest as there was a bedspread overlapping.
Senior Inspector Chabalala in his evidence told the Court that he was
stationed at Maputsoe during September 1996 as a Warrant
was on the 28th September, 1996 when he was still on duty that a
soldier by the name of Ramoepana came to his office.
Ramoepana is the husband to the accused before Court. The witness
showed that it was at around 6.30 p.m. when Ramoepana
arrived at the
Charge Office alleging to have been assaulted. According to this
witness Ramoepana was covered in blood.
witness decided to take the injured person to hospital, Motebang
Hospital at Hlotse, but before the person was taken to hospital,
Lt. Monyane arrived at the Charge Office coming to report about
people who had been shot at Hleoheng. The witness then proceeded
Hleoheng where he first reported to the Chief of the area. The chief
in turn took them to the scene of crime at the home of
and Manthuseng Ramoepana. When they got there they realized that
'Manthuseng was already dead but Malefetsane was still
were still inside the house.
went further to show that Malefetsane was taken to hospital, Motebang
Hospital, and the body did not sustain any further
injuries on the
way to the hospital. On the following morning the witness went via
Motebang Hospital to check on the condition
of Malefetsane and the
accused's husband. He came to know that Malefetsane passed away,
whilst accused's husband had already been
discharged. Because the
accused's husband had yet not left the hospital premises, the witness
grabbed the opportunity and questioned
him about what actually had
happened, and he gave his explanation.
to P.W.6, accused's husband already knew him, but he still identified
himself to him. They then left together to Hleoheng
explanation which accused's husband had given. When they got to
HIeoheng, he was asked to hand over the firearm he
had talked about.
The accused's husband tried to be difficult but when he realized that
the game of hide and seek was not taking
him anywhere, he eventually
took them to his home where he asked his mother to hand the gun over
to him. It was a 9mm pistol which
seem that the witness and accused's husband were at the accused's
parental home because he then showed that, they went
home where they met the accused. Questions were put to the accused
and she gave her explanation. The gun was shown
to the accused in the
presence of her husband.
to P.W.6. he already had the accused as the suspect after they had
left her husband in hospital and also taking Malefetsane,
deceased, to hospital. From the explanation of both the accused and
her husband it became evident that the gun belonged to
husband as his personal licenced firearm. The accused admitted having
used the gun. She even explained why she shot the
The explanation being that she was defending her husband who was
being assaulted by both the deceased. P.W.6's
evidence showed that
following the explanations from both accused and her husband, the
accused was arrested.
be clear that from the initial stage, accused's husband was not a
suspect. On further investigations accused's husband ended
becoming a suspect. When he was eventually arrested the firearm had
already been seized and kept in police custody. The witness
the gun and its magazine which he claimed had always been in his
custody as an exhibit and it was marked as such. The
taken the gun for ballistic examination.
examination P.W.6 still showed that even after they had confronted
the accused and her husband they still had the accused
as their only
suspect. Further investigations revealed that accused's husband was
also a suspect. The witness further showed that
only became suspect after some ten days or so and the accusal had
already been arrested. He pointed out that
the gun was never examined
also put to the witness that the accused's story was that there had
been a family scuffle whereby the two deceased persons
accused had been in her house all along and when she came out she was
armed with a gun. She fired twice in the air and the deceased
dispersed. Accused's husband got the gun from the accused and shot at
the two deceased. This was denied by the witness
as his story was
that investigations revealed that it was the accused who shot the two
his investigations it appeared as though two firearms had been used
in the fight, but only one gun was found. The investigations
that the one which was produced before Court was the one which the
D/Tpr Nyooko told the Court that he was stationed at Maputsoe during
1996. Whilst still on duty on the 28th September, 1996
some information. Following that information, he together with P.W.6
and others proceeded to a place called Ha Monyane.
They arrived there
after sunset. They were shown two people inside the house who had
sustained injuries. The injured people were
identified to them as
Malefetsane Ramoepana and 'Manthuseng Ramoepane.
in which these people were found was a two roomed house. The woman,
'Mathuseng was already dead but the man, Malefetsane
was still alive.
The two were found in separate rooms. One room was used as a kitchen
and the other room as the bedroom. Malefetsane
was therefore found in
the kitchen whilst 'Manthuseng was in the bedroom. According to this
witness, as it was already dark, they
rushed the one who was still
alive to hospital and the woman was left there for the night with
instructions that she should not
be removed or tempered with.
witness and his team visited the scene the following day in the
morning. They found the deceased's body in the same condition
they left it the previous day. On inspecting the scene starting from
the outside, they found two empty shells of 9mm calibre
gate. They also noticed that the accused's place was not far from
that of the deceased persons. Also found was an
unused 9mm bullet.
They then proceeded to the house of the deceased.
describing the deceased's house, the witness showed that it was a two
roomed house with three windows. Two of the windows were
on the front
part whilst the third window was at the back. The outer door was
broken. A 9mm empty shell was found at the roar window.
In front of
the house five 9mm empty shells were also found. On entering the
house a total of 13 shells were found in both rooms.
bullets were also found inside the house.
already been shown that 'Manthuseng was still in the house. She had
fallen near the bed on her back, facing upwards. On examining
body P.W.7 found that she had bullet wounds all over her body. The
witness observed a wound above the left eye, a wound on
the left side
of the neck and both these wounds had no exit. There was also a wound
on the left elbow and that elbow was broken,
three open wounds at the
back with no exit, a wound on the left thigh which had both an entry
and exit points, and another wound
on the right leg. The witness had
recorded his observations. Next to the dead body was a black sword
which was blood stained. The
witness seized the sword as an exhibit.
The sword was handed in as an exhibit and was marked as such.
his investigations the witness came to know that the deceased had
used the sword in the fight. On inspecting the inside
of the house
P.W.7 found that there were holes and scratches on the walls and on
the wardrobe in the bedroom. These holes were
signs of where the
bullets had dug the wall and the holes were still fresh. The deceased
was transported to the mortuary and the
body never sustained any
further injuries on the way to the mortuary.
then went and checked on the condition of Malefetsane who died in
hospital. He was already at the mortuary. On examining his
witness observed three wounds on the stomach, one of those wounds had
an exit at the back, one wound above deceased's
buttocks on the left
side. The other wound penetrated the left thigh. There was another
open wound above the right knee and another
on the right ankle. All
of these wounds had been sutured except for one above the right knee.
The wounds were also covered in plasters.
The witness had kept the
items found at the scene in police custody as exhibits. He had also
taken the shells that were found for
ballistic examination. The
witness showed to Court both used and unused bullets, the Projectiles
and shells. They were handed in
as exhibits and were marked as such.
witness showed that their investigations led to the arrest of the
accused after they had introduced themselves to her. The accused
confronted on that very same day, the 29th September, 1996. The
accused happened to be the only suspect at the time.
investigations revealed that accused's husband was also a suspect.
days after the accused was already arrested. Accused's husbands's
rights were explained to him and he gave his explanation.
He was thus
arrested and charged of two counts of murder, one of attempted murder
and the last one for malicious damage to property.
witness had taken photos of the scene and the bodies of the deceased
persons. He prepared two separate albums for those photos.
witness explained that he was trained for scene of crime and photo
taking. The photo albums were handed in as exhibits and
was cross-examined, P.W.7 pointed out that he together with his team
only came to the scene after the incidents had happened.
examined the accused's husband for any injuries on himself as he
(P.W.7) never met him during the initial stage of his
P.W.7 even explained that the accused herself had no injuries though
the instruction to her counsel showed that
accused also had injuries
and had even consulted a doctor.
accused's husband reported at P.W.7's office some time after the
arrest of the accused. Though the witness never examined him
produced his medical form. According to this witness a wound caused
by a sable would not be the same as that caused by a
bullet. A bullet
wound would lacerate and puncture whereas a wound from a sable would
show some tears. The witness confirmed that
the accused's husband was
also later charged of the same counts as appear in the indictment. It
eventually came out that the accused
had admitted shooting at the two
deceased persons as they (deceased) had attacked her husband.
According to this
the projectiles that he picked up at the scene were all of the same
type and make.
IInd Lt. Monyane in his evidence informed the Court that he was
stationed at Quthing. Before that he had been working at Roma.
still working in Quthing in l996. His home is at Hleoheng Ha Monyane
and stays in the same village with the deceased and
the accused. They
had attended a graduation ceremony at NUL on the 29th September,
1996. They arrived back home at about 3.00 p.m.
The witness may have
been on his annual leave, but this did not come out clearly.
evidence continued to show that as he was at home a child came to
report about a fight to the chief, Chief Nchakha Monyane.
must have been in the chiefs company because his evidence showed that
the chief asked him (P.W.9) to accompany him
to the scene. They went
together to the scene.
to explain the location of accused's home to that of the deceased
persons, P.W.8 showed that from his home (P.W.8) to
he had to pass the deceased's place. When P.W.8 got to deceased's
place he was stopped by the accused's husband.
The witness pointed
out that the accused's husband was very angry and shouted at him when
he (P.W.8) tried to calm him down so
that they could talk. He
(accused's husband) was still at his home at the time.
time the witness saw the accused at deceased's place standing at the
rear window and shooting inside the house through that
witness did not go nearer to the accused as he said he was afraid of
the gun. He kept on talking to the
husband in an effort of asking him to go and stop the accused from
shooting, The witness saw the accused eventually leave
the window for
her place. P.W.8 Then realised that the accused had been using a
accused was seen leaving her home with her husband to the deceased's
place. When they got (here P. W.8 saw the accused's husband
big stone which had been used to close a fowl run and struck the
deceased's door with it. The door was forced open. The
realised that when the accused proceeded back to deceased's place
with her husband it was only the accused who was armed
with a gun.
door had opened the accused and her husband were seen getting inside
the deceased's house. Once they were inside, several
gun reports were
heard. P.W.8 then saw a child come running out of that house towards
him. It was the deceased's child but the
witness could not remember
the name of the child. The witness then went nearer to the house
whilst the chief stood near the fence
where people had already
gathered. The accused and her husband were seen leaving the
deceased's house for their place. P. W.8 did
not have occasion to
talk to both accused and her husband to get to know the source of
then managed to get inside the house as he had heard people crying
inside. He got into the bedroom where the cry came from.
the door to the bedroom and the first person he met in there was
'Manthuseng. He tried to assist her but because of her
not manage to raise her. He realized that her clothes on the chest
were soaked in blood.
then heard a cry from under the bed and found that it was
'Malefetsane. The witness pulled him from under the bed and
that he was still alive and could still talk. P.W.8 then
heard the deceased claim that the accused's husband had killed his
He asked the witness to assist him. Before he could assist him,
the witness told Malefetsane that he had been telling him to leave
those fields as he (deceased) managed to be educated by her mother
without any benefit from those fields. The deceased had agreed
him on that but showed that it was no longer of any use to talk to
him like that.
P.W.8 who reported the matter to Police at Maputsoe. Accused's
husband arrived at the Police Station as P.W.8 was reporting.
surrendered himself to Snr Inspector Chabalala who is P.W.6 in this
case. P.W.8 observed what he called a bad wound on accused's
husband's forehead and the wound was still covered in blood. P.W.8
had earlier on noticed that wound when he (P.W.8) was at accused's
place and had asked for a short talk with accused's husband.
in his evidence P.W.8 showed that he knew about the issue concerning
the fields between the two families. He was also aware
matter even went before the Courts of Law and that Judgment was given
in favour of the deceased.
examination P.W.8 pointed out that the deceased, Malefetsane
Ramoepana had indicated that accused's husband, Mosoeu Ramoepana,
shot him and also shot his wife. P.W.8 had also reported to P.W.6,
Snr Inspector Chabalala. The witness still insisted on pointing
that he had seen the accused shooting inside the house through the
juncture the Crown made an application in terms of Section 227 of the
Criminal Procedure and Evidence Act 1981, that the
evidence of P.W.4
and 5 at the PE be admitted in evidence as those witnesses have
passed away. The Defence Counsel Mr Mosito did
not object to this
instead he added that he in fact had no choice as that is the law,
but concluded by saying that the matter was
entirely in the Court's
exercised its discretion and allowed the application. The evidence of
'Malineo Ramoepana was duly read into the machine.
Ramoepana had told the Court that she resided at Ha Monyane. She was
at a least within the village of Ha Monyane on the
1996. It was at a graduation ceremony. As she was there, late in the
evening, she received some information. Following
she left with others to deceased's place. On her way to that place
she met a group of people running back towards
then heard the accused telling his uncle not to come any closer. As
she said these words, the accused was near the deceased's
door for the deceased's house was still closed. 'Malineo then heard
gun reports. She did not see the two deceased persons
accused's husband at the forecourt of the deceased's place. Accused
was breaking the windows of deceased's house and her
her. As they had entered the house 'Malineo heard more gun shots.
'Malineo was about 150 paces away from where
the shooting took place.
then saw both accused and her husband getting out of deceased's
leaving for their home which was next to the home of the deceased.
'Maneo Ramoepana (P.W.3) was seen leaving deceased's
house also. Her
clothes were soaked in blood and appeared to be very much confused.
'Malineo took 'Maneo to hospital and later
came back to deceased's
place. In deceased's house she found 'Manthuseng already dead but her
husband was no longer there. 'Malineo
is related to the accused and
her husband as their aunt. Deceased, Malefetsane, being the brother
to 'Malineo's husband. Accused's
husband was a member of LDF. He may
have been on leave during that time.
of' Matumelo Ramoepana which was also read into the machine was to
the effect that, she resided at Ha Monyane together
with the accused
and her husband. He is also related to the deceased and also live in
the same village. She knew accused's husband
as a member of LDF.
4.00p.m. on the 28th September, 1996 'Matumelo was going to her home
village from Tabola. On the way she met Mahlomola
reported to him about accused's husband. 'Matumelo got hurt by the
information so much so that she walked faster
in order to get home on
time. When she was about to reach home she met accused's husband
going to his home.
also saw the deceased Malefetsane going to his home. They were in
deceased's house when she heard the dogs barking and
wife went out of the house. When she returned she invited 'Matumelo
to the outside saying her husband was dying.
When 'Matumelo got
outside she saw Malefetsane Ramoepana and 'Mapelaelo Ramoepana
fighting. They were in the street. Malefetsane
and 'Mapelaelo had nothing. 'Matumelo went away and reported the
fight to one Monyane, but whilst she was on her way to
heard a gun shot.
reporting, 'Matumelo went back to where the fight was taking place,
only to find that it had ended. She showed that before
over the fence she heard a gun report. She saw both deceased persons
enter their house and close the door behind them.
She heard another
shot from accused, 'Mapelaelo, who came nearer Malefetsane's place
where she broke the windows as she was shooting.
that 'Mapelaelo aimed into the house at the same time uttering abuse
then saw Mosoeu approach 'Mapelaelo and together tried to open
Malefetsane's door but failed. She saw Mosoeu pick up a
hit the door and the door opened. They both entered the house and gun
reports were heard from inside the house.
and Mosoeu then went out of the house and 'Mapelaelo was heard
saying, "you have died, you will never see this day."
Mosoeu then chased 'Matumelo and others still holding a firearm in
his hand. When 'Matumelo got inside the house she found 'Manthuseng
Ramoepana lying in a pool of blood and did not notice her husband.
There were holes and blood stains on the wardrobe and walls.
body was left in the house for the night. 'Mapelaelo was arrested the
had asked to be allowed to make a submission in regard to what he
called a typing error in the record, which he thought
might convey a
meaning inconsistent with the other evidence. She specifically
referred to the evidence of
PE 'Matumelo Ramoepana where it was said P.W.3 was injured yet P.W.3
was the identifying witness. He said the witness must
talking about P.W.2 'Matseuoa not P.W.3 Mahlomola. This was objected
to by the Defence Counsel showing that the witness
the Magistrate under oath and that the evidence had been read back to
her. He showed that that was not a typographical
error but would be
an amendment of the deposition.
application by the Crown was refused as the Court considered that it
was not a typographical error but a substitution of the
Crown therefore decided to call the Magistrate who presided at the
Motsamai Kolobe was called as P.W.9. He was given a copy of the P. E
record where the first accused was 'Mapelalo Ramoepana and
accused, Mosoeu Ramoepana. He also read the names of the first three
Crown witnesses as P.W.1 Ramoepana Ramoepana, P.W.2
Ramoepana and P.W.3 Mahlomola Ramoepana. The witness explained the
Procedure at P.E.
witness told the Court that the Procedure at P.E is that the
witnesses have to be sworn-in and can opt to give evidence in one
the official languages, Sesotho or English. The evidence will be
interpreted by a sworn-in interpreter. The evidence will be
to the witness, thus giving him chance to correct where necessary.
The witness will then sign at the end to confirm that
had been recorded correctly. The Magistrate has to record what is
being said by the interpreter not what he directly
heard from the
further and showed that when the witness is giving evidence, he will
be calling out people by their names, even those who
appeared in Court as Crown witnesses like himself. But the
interpreter in turn will be referring to those who have
evidence as P.W. so and so. Even the Court when reading the statement
back to the witness too will be referring to
other witnesses as P.W.
so and so. The Magistrate here clearly pointed out that he was not
sure if the witness would appreciate
that reference to witnesses as
P.W. so and so.
witness referred to page 5 of the P.E proceedings, where the evidence
of Mahlomola Ramoepana is recorded, but the Defence Counsel
to the procedure taken as amounting to correcting the evidence of a
witness who had already given his evidence. The Crown
on the other
hand pointed out that he only wanted to clear some eminent confusion.
The defence still insisted that irregular evidence
will not be
allowed the witness to continue in his evidence so that it could be
seen whether such evidence could be allowed. In proceeding
evidence P.W.9 clarified that when P.W.4 at P.E in his evidence
referred to P.W.3 she in fact was referring to 'Matseuoa
who is P.W.2. The witness said he was saying that because when taking
in totality the evidence of P.W.4, P.W.3 was never
in the house but
P.W.2. The witness, P.W.4 in his evidence talked about a she not a
a clarification on the evidence of P.W.5, 'Matumelo Ramoepana after
reading her evidence. P.W.9 also showed that when
P.W.5 referred to
P.W.3 she in fact was referring to P.W.2 as P.W.3 was never in that
house, deceased's house but
only a fter hearing these clarifications from P.W.9 that the Court
was then able to make a ruling on whether or not to allow
evidence. The evidence of P.W.9 was allowed for reasons that follow
below. Taking the evidence at P.E of P.W.4 and P.W.5 where
makes reference to P.W.3, it came out that considering their evidence
in totality reference has always been made to
P.W.2 all along who
happened to be in deceased's house and was a she not a he. P.W.3
Mahlomola Ramoepana only came alter the fight
clearly told the Court that the interpreter in his interpretation of
evidence of a witness will not be referring to a witness
already given evidence by name but as P.W. whatever. Even the
Magistrate at P.E will do the same when reading the evidence
the witness. This therefore could not amount to correction of
evidence of a witness but only done to clear some eminent
in the minds of the Court and all concerned in the matter.
examination P.W.9 who happened to be the Magistrate who presided at
the P.E in this case told the Court that during the
P.E he had the assistance of both the prosecutor and an interpreter.
According to this witness questions put to
the witness in his
evidence in chief do not form part of the record, so that only
answers will be recorded. He went further and
explained that what is
recorded is what is asked under oath not what is asked by the
Prosecutor who will not be sworn-in but that
the witness will be
sworn-in. The witness admitted that questions under cross examination
will become part of the record.
witness went further to say that questions put under cross
examination constitute accused's defence and questions under evidence
in chief only help in leading the witness. The witness agreed with
the defence counsel that what he had said was only his own perception
and understanding of the law. It was suggested to P.W.9 that
questions put in Court irrespective of whether or not they come from
defence or prosecutor form part of the record. The purpose being to
enable even a different Court to understand the flow and nature
the evidence. But P.W.9 still insisted on saying that answers from
the witness would be sufficient to assist the Court to understand.
On the PE
record there was not even a slightest reflection of what was asked by
the prosecutor. The witness pointed out that an
have to translate from Sesotho into English and vice versa. It was
also put to the witness that the accused would
say that when
witnesses were testifying at P.E their evidence was never read hack
to them, and the reply was in the negative. It
was clear that the
witnesses at PE were testifying in Sesotho, and P.W.9 denied that
there was no interpreter during the proceedings
being an old case the witness could not quite remember whether Mr
Ranyali was the one interpreting but he said under normal
circumstances he must have been there (Mr Ranyali). The witness
further pointed out that the message conveyed by the date stamp
impression at the end of every evidence was that the presiding
officer read back the witnesses testimony to the witness and that
interpreter interpreted back to the witness. But P.W.9 was very clear
in saying that when sitting as a Judicial Officer he
would not be
taking what comes out from the witnesses'
would record what comes out from the interpreter. He further said he
would only make some modifications where there has
P.W.9's evidence that he could remember a he put for a she after he
would have read the PE proceedings and that he based
his reply on the
contextual appreciation. To a suggestion that a stamp impression was
just put on the record after each witness
had testified, P.W.9 showed
that he could not dispute that as he could not remember. He could not
also dispute the fact that the
interpreter merely put his signature
on the record without having interpreted anything sentence by
witness was asked to state the normal procedure at the P.E on the
question of interpreting the proceedings. He told the Court
normally as the witness would be giving his evidence led by the
prosecutor, the interpreter would be interpreting from Sesotho
English. He said there would never be a time where evidence at P.E
would be given without the assistance of an interpreter.
when the evidence is read back to the witness, he would be told the
purpose of that exercise, being to make additions
where there have been some misinterpretation.
close of the Crown case the accused chose to go into the witness box
and gave her evidence. Her sworn evidence in a nutshell
was that she
listened carefully to the proceedings at P.E where the proceedings
were conducted in Sesotho and that there was no
indicated that she remembered the day that the deceased persons met
their death. It was on the 28th September, 1996 when her
9 year old
son came to her and
to go out of the house to witness something. The child uttered words
to this effect, "mother, mother please come
out and see."
The accused then said as she came out, she saw her uncle, the
deceased clumsily embracing her husband, at the
same time cutting her
husband with a sabre (sword). Malefetsane had his hands around her
husband's waist. Accused said she could
not see her husband's hands
as her husband was trying to free himself.
in her evidence showed that the wife of Malefetsane, one 'Manthuseng
was the one who was using the sabre (sword). Accused
approached them and enquired as to what the matter was. As she was
asking, 'Manthuseng struck her with a sabre and cut
her at the back
of her hand and the middle part of her arm near the elbow. The
accused then went back to her house, collected her
husband's gun and
went back to where the fight was taking place. She fired twice in the
to the accused as she fired Malefetsane and his wife dispersed.
Accused's husband snatched the gun from the accused and
firing. Accused's husband was not saying anything as he did all
these. Accused tried to stop him but all in vain. Accused
husband to ignore the temptation of shooting at those people but he
replied and showed he couldn't leave them. As all
these happened they
were at a passage between accused's yard and deceased's yard.
indicated that her husband kept on shooting until when accused
learned later that both deceased had died. Accused's husband
shooting till the deceased were at a passage leading to their home
and accused's husband had followed them to their home.
continued even after the accused had
their home. Accused's husband entered deceased's home and kept on
shooting whilst he was already inside the house.
in her evidence accused told the Court that she never carried a gun
and that the police never found any firearm in her possession.
Accused said she never fired any shot whilst inside deceased's house
as she did not know how to use a gun. When she first fired,
only pressed where she had put her finger and it fired. She denied
ever shooting at 'Matseuoa, P.W.5 through the window.
recollection the cause of the quarrel was a dispute over inheritance.
It was accused's evidence that she never shot
at anybody on that day.
Accused further showed that her husband died later during May 2000
killed by deceased's sons.
describing the deceased's house the accused explained that it was a
two roomed house, one room being used as a kitchen and the
other as a
bedroom. Accused had earlier on shown that she also followed her
husband into deceased's house as he was shooting. She
had also shown
that her husband kept on shooting even whilst he was already inside
the house, though she could not notice the direction
at which he was
firing. Later in her evidence she said that her husband was aiming
his gun at the two deceased persons.
accused's evidence that she neither saw 'Matseuoa, P.W.5, nor 'Maneo,
P. W.3 on that day. Her evidence was that if they were
could have seen them as she was still able to see under the table in
the kitchen. But immediately changed to say she
did not see under the
table and would therefore not know if there were people under that
evidence showed that she only fired two shots in the air. She never
fired to kill anybody on that day, and denied ever
deceased's windows. Her evidence further was that it was her husband,
Mosoeu, who used a big stone to break the door at
deceased's place so
that he could gain entry into deceased's house. She further told the
Court that after the shooting her husband
went to hospital as he had
sustained injuries. Accused also had been injured and she too went to
see the doctor.
accused denied ever participating in the destruction of deceased's
property. Also that they never planned with her husband to
deceased at their home. She also denied ever saying that the deceased
were not going to see the end of that day. She
went to the Police
after the shooting to report the incident of deceased's death. When
she went to report she was told by Police
that her husband had
already reported. Her evidence further showed that Police never asked
her about any firearm, and never reported
to Police that she had lost
examination the accused pointed out that they knew each other so well
with P.W.3, 'Maneo Ramoepana, and that P.W.3 lied
when she said she
saw her (accused) from the rear window of deceased's house. But later
said P.W.3 could have seen her as her (accused's)
house is near to
that of P.W.3. Accused denied that P.W.3 saw her (accused) through
the window and that she ever saw her shoot
at her (P.W.3).
took it that P.W.3 was only implicating her as her (accused's)
husband is late. It was put to the accused that she was putting
the blame on her husband because he was no more.
her husband struggled to free himself she (accused) could not see
husband's blows were directed. Accused indicated that she said her
husband was furious and could not talk because he just
gun from her, with these words, "just see how bloody I am".
Accused when realising that she could no longer
contain her husband's
fury, decided to disassociate herself from his acts as she had wanted
him to stop what he was doing.
went on and told the Court that she had been crying out for help and
had realised that people had gathered at the scene.
admitted to P.W.7, Sgt Nyooko that she had used the gun because P.W.7
had said she should say so in order to save her
husband from losing
his job. He admitted saying that she used the gun to defend her
husband, but indicated that P.W.7 never asked
her the stage at which
she had fired the gun.
in cross examination the accused indicated that she heard when P.W.3,
'Maneo, in her evidence testified to the effect that
the accused by voice. Accused explained that the motive to implicate
her could be that, P.W.3 was not on their side
as there is a division
in the family.
further explained that it was her first time to fire a gun on that
day. She just pressed without any idea as she had been
use guns over television. According to the accused, her husband was
the first to be given charges, whereas she was
only charged some time
thereafter, months later. Her evidence went further to show that she
was the one who took the gun to where
the fight took place. There was
a time when she had left her husband shooting when she went back home
as her husband refused to
go home. This was at the time when her
deceased's house in the bedroom. Accused explained that when the
fight took place it was at about three or four in the afternoon.
There was no other witness called for the defence.
looking at the evidence as a whole, it is common cause that there had
been a fight between the deceased's and accused's families
field on the day in question. It was a family feud. It is an issue
for determination by this Court as to who between the
started the fight.
the evidence of P. W.5 'Matseuoa Ramoepana accused's husband was the
one who started the fight. P.W.2 Pelaelo Ramoepana
only came when the
fight had already started and did not know where it had started.
Unfortunately one 'Matumelo could not be called
as a witness as the
person who even raised an alarm, but her deposition was admitted in
evidence by consent.
evidence that was led before this Court it became evident that the
source of the misunderstanding between the two families
was a field.
It has also been stated that the matter was even taken before the
Courts of Law where judgment was given in favour
of the deceased
persons. It may be that the deceased became boastful or that the
accused and her husband were still not satisfied
and felt that they
would resort to violence, but that would be pure speculation which
would not help take our case any further.
In short the cause of the
fight for that day has not been established, but what remains is the
fact that both families were not
in good terms because of a field.
learned from the evidence of P.W.3 'Maneo Ramoepana that both
deceased had run into their house, closing and locking the door
behind them. She was corroborated on this point by P.W.5 'Matseuoa
Ramoepana, who also told the Court that her parents, both deceased,
rushed inside the house on the sound of the gun and locked themselves
in. The accused and her husband may have been angered, but
deceased fled to their home, this surely allowed them enough time for
cooling of passion; Regina v Masakale Mphosi 1963
-66 HCTLR 17 at 19.
But instead the accused pursued the deceased even after they had
locked themselves inside their house. We are
here talking about
cooling of passion in the legal sense, because in reality that pause
may turn out to be time for one to even
becoming angrier that before.
to P. W.2, Pelaelo, who is the daughter to the accused, accused was
the one who went home to collect the firearm. The
accused herself did
not deny that she was the one who collected the gun from home. She
even said she had fired twice in the air,
thus indicating that she
was quite familiar with the use of that gun. P.W.5 on the other hand
said that whilst they were already
inside the house, she saw the
accused shooting through the window and even shot her on the chest
between the breasts as she was
passing on to the other room.
evidence of P.W.5 on the issue of the accused shooting inside the
house through the window at deceased's place was corroborated
of P.W.8 IInd Lt Monyane, who loo testified to the effect that he saw
the accused at the deceased's place shooting through
the window. He
had also seen the accused leave for her place only to come back later
with her husband to deceased's place, accused
R v Manda 1951 (3) SA 162, that "where corroboration is required
it must be of a kind that implicates the accused."
Also R v J
1966 (1) S.A 88. P.W.8 even told the Court that as the accused was
shooting, he was talking to the accused's husband
asking him to stop
the accused from shooting.
to the evidence of both P.W.3 and 5, the accused was heard saying
that she had run out of bullets and was going to re-load
There was a pause and P.W.8 showed that after he had seen the accused
shooting through the window at the deceased's place
he saw her leave
for her home. That must have been when P.W.3 managed to flee to her
house. Accused was seen later coming back
with her husband with a gun
in her hand. This could have been after she had re-loaded her gun,
because once she had gained entry
into the deceased's house with her
husband more gun reports wore heard. Also to be remembered is the
fact that the medical report
had shown that accused's husband, Mosoeu
Ramoepana claimed to have been assaulted on the head and on both
hands with a sword. This
attack may have weakened his hands.
be remembered is the evidence of P.W.8 when he said he saw the
accused enter the deceased's house with a gun in her hand.
also seen the accused entering the house in which they were, and she
(P.W.5) could still see the accused from where she
had hidden under
the bed. P.W.5 saw the accused shooting, directing his blows under
the bed where both deceased and P.W.5 had hidden.
So that the
evidence of P. W. 8 corroborated P. W.5's evidence that accused
continued shooting even when she was already inside
been told by the crown witnesses that accused at some stage before
entering deceased's house ran out of ammunition, even
there it is
obvious that there was yet another ample opportunity for cooling of
accused's passion, but because the deceased had
injured her husband
she wanted to see them dead.
of P.W.4 and 5 at P.E were handed in and the defence counsel did not
object to that. In response to the application
by the crown for
handing in that piece of evidence in terms of Section 227 of C.P &E
Act 1981, the defence counsel replied
as follows: "I have no
choice as that is the law, but the matter is entirely in the Court's
discretion."But now the defence
in his addresses and heads of
argument is saying that such depositions could only be admitted in
evidence if and only if in terms
of Section 227 (2) (a) CP & E
Act it was proved on oath to the satisfaction of the Court that the
deponents were dead. He is
now asking the Court to disregard those
point had been eloquently discussed in the case of R v Chabalala 1991
-96 Vol. 2 LLR 957 and cases cited therein, that the
the Court with unfettered discretion to exercise. The other aspect
will be the question of prejudice to the accused
as a result of the
admission of the depositions. This investigation the Court is
enjoined to make before and after the deposition
had been admitted.
In our case the investigation is made after the admission of the
deposition when the Court is evaluating the
evidence as part of the
other testimony in order to reach a conclusion towards a final
judgment on matters of credibility amongst
others. It's not made
before as the depositions were handed in by consent of both parties.
Court to make a determination on the question of prejudice, it has to
look at the nature of the evidence sought to be put
in, and if for
instance it conflicts with the other evidence led in the particular
case, or if from cross examination the evidence
recorded would seem
to leave a doubt, then the Court should be very slow in admitting the
evidence as envisaged under Section 227
of the Act, R v Rasool 1929
admitted depositions of the two witnesses not called to give evidence
was that, they saw the accused breaking the deceased's
windows as she
was shooting through the window, P.W.4 at P.E had also heard gun
reports after accused had entered deceased's house.
It was the
evidence similar to that given by P.W.5 and P.W.8 at this trial, so
that the question of prejudice does not arise as
there had been no
conflict with the other evidence given before this Court.
Magistrate Kolobe who presided at the P.E proceedings clearly
explained the procedure at P.E. He was asked as to whether he
been assisted by a prosecutor and interpreter at the P.E and the
answer on both was in the affirmative. P.W.9 even explained
what the functions of that interpreter were. The witness admitted
that his record only reflected answers given by the witnesses
questions that the public prosecutor asked the witness. The witness
did not come up clearly that there was in fact no interpreter
Court during the proceedings at P.E he only said that under normal
circumstances there would always be an interpreter. He went
to say that this case being an old one he would not exactly remember
as to what transpired in the proceedings. He could
because he couldn't remember. By that he could not have been taken to
have said there was for certain no
said in R v Moleleki 1982 (1) LLR 89, in giving out the functions for
a Judicial Officer at P.E that he cannot act as an
interpreter as he
would not have been sworn in as such. The magistrate did not say for
certain that there was no interpreter, what
he said was that he could
not dispute because he could no longer remember.
if we were to disregard the P.E proceedings, there has been
overwhelming evidence against the accused, that she was seen
a gun in her hand on that day at deceased's place shooting through
the window of deceased's house, the evidence of P.W.5
and 8. She was
also seen entering the same house with a gun in her hand and once she
had entered, gun reports were heard. P.W.5
saw accused shooting as
she entered the house. According to P.W.5 both accused and her
husband were shooting each using a gun,
meaning that there were two
firearms used, though only one was exhibited.
defence had asked the Court to view 'Matseuoa, P.W.5's evidence in
the light of her likely bias as the deceased's child. With
mind the Court also considered the evidence of P.W.8, IInd Lt Monyane
as an independent witness who strengthened the prosecution's
relevant issues given by P.W.5, the shooting and the damaging of
accused also wanted the Court to consider her as having not
participated in the crimes charged but her late husband only. She
claims innocence in the whole
Accused told the Court herself that she was the one who went home and
collected the firearm. She had even fired in the
air. She said she
was asking her husband to leave the deceased yet she went and
collected the firearm.
said in ihe case of R v Du Randt & Another 1954 (1) SA 313, that
common purpose may be created on a spur of the moment
premeditation, which exactly had been the position in this case.
Accused had found the fight between deceased and her
going on. They never planned with her husband to go and attack the
deceased at their home; at least there has been
no evidence to that
effect. On the principle of common purpose it would therefore not
matter if it was accused's husband who was
doing the shooting or the
accused herself. Even if we were to believe accused's story that it
was her husband who was shooting,
she too would still be taken to
have fully participated in the commission of the crimes charged on
that principle of common purpose.
She associated herself with her
husband in the shootings because even after the interval that was
taken, she came back with her
husband to the scene and the shootings
accused satisfied the five pre-requisites to be applied to an accused
as set out by the defence that:
must have been present at the scene of any of the incidents referred
to in the particulars, including the acts pleaded, of
must have been aware of the conduct involved in such incidents.
must have intended to make common cause with the actual
perpetrators of the said incidents;
must have manifested her sharing of a common purpose with the
perpetrators by himself performing some act of association with
their conduct; and
must have had the necessary mens rea.
at the scene by P.W.7 D/Tpr Nyooko was a total of 21 shells and
projectiles, from inside and outside deceased's house.
For someone to
have fired so many bullets gives a clear indication that such person
wanted his/her victim dead or badly injured,
and this is what accused
associated herself with as the person who brought the gun to the
accused has also been charged of malicious damage to property. A
person commits malicious damage to property if he unlawfully
intentionally damages movable or immovable property of another, Hunt,
South African Criminal Law and Procedure (1996) Vol II
It would still be malicious damage to property even where the
accused's conduct did not reduce the value of the
property, see the
case of Mashangu 1924 AD 11. So that in this case the windows have
been damaged and the door also. The walls
and wardrobes had holes
from the gun shots. Which shows that the financial loss, sentimental
value or commercial value are not
necessarily the decisive factors in
determining whether malicious injury to property has been committed.
That may well be considered
in passing sentence.
also is the issue of the evidence of P.W.1, the doctor who handed in
the post-mortem reports and medical reports. All those
not prepared by
witness. The witness merely read the contents prepared by other
doctors as having, been an administrator then and custodian
hospital's property which included also records.
Phomane and Another v R 1985 - 90 LLR 1 at 4 the Court held that the
magistrate ought to have ruled that the medical reports
inadmissible because evidence was given by the doctor other than the
one who prepared the reports. In the similar vein the
in by P.W.1 are inadmissible evidence as he did not himself prepare
has not been told that both deceased were unwell before the incidents
of that day. The deceased 'Manthuseng died on the
Malefetsane died in hospital a short while after his admission. It
would not be unreasonable to infer that he died from
injuries that he had sustained.
already shown that besides the evidence that was given at the P.E,
there is also overwhelming, evidence of witnesses who
before this Court against the accused in the commission of the crimes
charged. She was seen shooting at deceased's
place through the window
thus damaging the deceased's property. She was seen entering the
deceased's house with a gun in her hand
after her husband had used a
big stone to force their entry. She was seen shooting whilst already
inside the house. Even if we
were to believe her story that her
husband did the shooting, on the doctrine of common purpose as
illustrated she too participated
fully in the commission of the
I have in
this case therefore accepted the evidence that the accused fired the
shots which caused the deceased's death, and damaged
property. She also fired the shot in an attempt to kill P.W.5
'Matseuoa Ramoepana. In so doing the accused must have
death was likely to occur R v Lechalotsana & One 1979 (1) LLR
210. The accused therefore had the requisite subjective
kill, at least in the legal sense.
result, I have come to the conclusion that the accused did commit the
crimes of murder, attempted murder and malicious injury
as charged. She is accordingly convicted of murder in count land 2,
attempted murder in count 3, and malicious injury
to property in
assessors agree with my findings.
having in Count 1 and 2 convicted the accused of murder, is now
enjoined under the Provisions of Section 296 (1) of the
Procedure and Evidence Act 9 of 1981, to determine the existence or
otherwise of such factors which may lend to reduce
moral blameworthiness of her acts. The Court of Appeal in Matsoai and
Others v R 1967-70, held that when extenuating
found to exist, the trial Judge must specify what those extenuating
accused has already been found guilty of murder in both Counts, at
least in the legal sense. Evidence was led in extenuation
accused herself. I have found that evidence to have been a bit
confusing. The accused showed that the misunderstanding over
field in question started once she got married into the Ramoepana's
family, but did not explain further what her marriage had
to do with
the dispute over the field.
accused has also shown that the field had been owned by the elder
brother to her husband who was still living during that time.
not explained why her husband, in the presence of his brother, got
involved in the dispute over that field. So much was
accused has alleged remorse without substantiating that remorse which
she alleges. Nothing has been said about the remaining
members of the
deceased's family, their children. At least a copy of the judgment
over the field from Tsifalimali Central
been handed in as an exhibit thus forming part of the record in the
proceedings. Judgment was in favour of the deceased,
has however found that there had been no premeditation, but the
accused acted on the spur of the moment on realising that
there was a
fight between her husband and both deceased. This is a factor tending
to reduce the accused's blameworthiness of her
circumstances, having found that extenuating circumstance does exist
in this case, the proper verdict therefore is, that
the accused in
Count I and 2 is found guilty of murder with extenuating
in mitigation of sentence told the Court that the accused has no
previous convictions, thus making her a first offender.
for the accused addressed the Court on mitigation of sentence. He
asked that justice must be tempered with mercy in an effort
to balance the interests of the society and that of the accused. The
accused being a first offender, had acted at the
spur of the moment.
She felt very much provoked on seeing her husband being assaulted by
both deceased persons. Accused has a family
of six children two of
whom are married and the last three still attending school. Her
husband having being killed by the deceased
persons' children who
still mourn the loss of their parents.
conduct from the time of the happening of events to the date of trial
has been commendable. She has cooperated with the
police and the
Court during the trial.
in bringing this 1996 case before the Courts of Law has been a dark
cloud which remained in accused's mind all this time.
As a mother, if
taken to prison for a long term of imprisonment, that might have a
negative bearing on the future being of her
appears to be the neglected area of the criminal proceedings, because
usually it takes far less time and enquiry to settle
prospects and fate
than it takes to find out say, whether he took a suitcase or any
property belonging to another unlawfully. Much attention
given to questions of guilt or innocence. Once the accused is
convicted, sentencing usually follows within a very short
accused has told the Court that ever since the killing of the
deceased persons, she felt sad and sorry for what has happened.
has however not shown any attempts or efforts that she took in trying
may be to demonstrate her sadness.
has however considered all the mitigating factor placed before it
together with the authorities cited in support thereof,
but the Court
is not prepared to lose sight of the seriousness of the offences
charged. Deceased's children lost both parents in
incident. One of them even witnessed the killing of her parents.
passing the sentence the Court should seek to prevent the need or
desire for self-help from arising. It should also simultaneously
refuse to take emotional revenge on behalf of the indignant society
and its members, S v Thonga 1993 (1) SACR 365. Murder being
serious offence, it would, I hope, not be irrelevant to bear in mind
that if sentence for serious crimes are too lenient,
administration of justice may fall into disrepute, and the injured
persons may be inclined to take the law in to their own
accused may have been angered, but as Schreiner JA stated, "naturally
righteous anger should not becloud judgment."
R v Karg
I961 (1) S.A 231. I am personally of the opinion that imprisonment is
only warranted where, as in this case, it is necessary
to remove the
offender from society for the protection of the public and where the
purpose envisaged cannot be met by some alternative
punishment should fit the criminal as well as the crime, R v Zonele &
Others 1959 (3) S.A 319.
light of all what I have said above, I have come to the conclusion
that the proper sentence for the accused should be as
murder in Count 1: Ten (10) years Imprisonment without an option of a
minder in Count 2: Ten (10) years Imprisonment without an option of a
attempted murder in Count 3: Four (4) years Imprisonment without an
option of a fine.
damage to property in
Three (3) years imprisonment or M3,000 of which half is suspended for
a period of three years on condition that the accused
is not found
guilty of a similar offence during the period of suspension.
sentences to run concurrently.
Crown: Mr Seitlheko
Defence: Mr Mosito
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