HIGH COURT OF LESOTHO
MONATSI 1st ACCUSED
MAQALEHA 2nd ACCUSED
SEHLAHA 3rd ACCUSED
LEFETA 4™ ACCUSED
KALANE 5™ ACCUSED
LELEKA 6™ ACCUSED
MONATSI 7™ ACCUSED
MAPONOPONO 8™ ACCUSED
LEKOLA 9th ACCUSED
MAKAKOLE 10th ACCUSED
LEBETSA 11™ ACCUSED
BY THE HONOURABLE MRS. JUSTICE K.J. GUNI ON THE 15th DECEMBER. 2004
of the accused.................sufficiency of the evidence of the
eye witness Who had known accused persons very well
over a long
period of time prior to the commission of the alleged crimes.
persons were recognized and identified during broad day light without
any obstruction or hindrance to the witnesses sight.
purpose .................all the accused were acting together far the
accused traveled together in a group. All the accused were involved
in the chase and assault of the deceased. They were all
aware of the
weapons in their possession and the likelihood of their being used.
They all participated in the assault. They must
have and did observe
each other while each and everyone used his or her weapon to assault
the deceased. They must all be held responsible
for the death of the
deceased who dies during that assault or immediately thereafter.
of the court to reach the conclusion regarding the cause of death on
the basis of other evidence where there is no medical
quite competent for the court to arrive at the conclusion regarding
the cause of death on the basis of other evidence where
there is no
accused were seen by the various eye-witnesses from different
positions or viewing points at various times and different
during the process of their assault upon the deceased. The assault
went on for a period of 2 - 3 hours. The deceased were
driven in and around their very own village by groups of men -
including the accused persons in full view of their fellow
This was done during broad day light at about 12.45 to 4 p.m. The
deceased were beaten up by the accused and others
- using sticks and
sjamboks. The deceased were so badly beaten that they were apparently
in a very bad shape. They were unable
to walk properly due to the
assault. This was done in full view of other villagers who observed
the severity of the assault and
its result. The deceased persons died
in the hands of their assailants. One died during the assault and the
other died shortly
after he was assaulted. Medical certificates and
post-mortem reports were not produced as they went missing prior to
There was no medical evidence led before the court.
Held: 1. That the accused were properly recognized and identified in
broad day light without any difficulty, by the eye-witnesses
known them over a long period of time prior to the alleged crimes.
accused were acting all together for the common purpose to chase and
apprehend the deceased for detention for allegedly committing
burglary at the first accused's shop.
the accused must have been aware that the manner in which they
carried out the alleged assault upon the deceased, with the
weapons they used, death was the likely result. They deliberately or
recklessly continued perpetrating the alleged assault
the likely consequences.
was no evidence that the deceased person were suffering from any ill
health prior to their arrests and assault by the accused.
evidence showed that they were well and moving about their daily
business when they were caught and assaulted to death fay
the absence of medical evidence the accused were properly convicted
of murder on the basis of the evidence of eye witness.
accused are jointly charged with two counts of murder and two counts
of assault with intent to do grievous bodily harm.
All the charges
were committed on the 26th November, 1990, at KHATLELI also known as
MAKALONG and at KHONOFANE in the district
OF THE CROWN CASE IN COUNTS I & II
accused persons were recognized and identified at the scenes of
crimes by eye-witnesses. Some accused were on horsebacks, others
traveling by two motor vehicles and at times on foot. It was about
12.45 p.m. when the accused arrived at the village of MAKALONG.
were seen assaulting one PAKISO LEOMA with sticks and sjamboks. The
group of the accused persons and others were seen chasing
EKETSANG LEOMA. They caught EKETSANG. While they assaulted him by
beating him up all over his body with "mabetlela"sticks
various types of sjamboks, they escorted him to his home and other
places such as PAKISO'S house. Blows delivered by some of
and/or others not before this court, caused the deceased - PAKISO to
deceased had fallen he was beaten even more as he was being ordered
to rise up and accused of pretending to be dead. PAKISO
assaulted severely while lying prostrate on the ground. His life
ended then and right there while being belabored with
a sjambok on
his private parts. EKETSANG died shortly after he was so assaulted
but while he was still in the hands of his assailants
who drove him
first to MAPHOLANENG police station and later to MOKHOTLONG police
station from where both deceased persons were
taken to MOKHOTLONG
III AND IV
WITH INTENT TO DO GREVIOUS BODILY HARM The two complainants in these
two counts are the relatives and/or friends of the
persons in counts I and II. The complainant in count III is one
TEBOHO LETSELA. The complainant in count IV is one
They were arrested by the accused and assaulted while under arrest.
Their hands were handcuffed behind them. The
beating with sjamboks
continued unabated as the complainants were being driven around to
various places by the accused.
accused demanded from these two complainants the production of the
goods which allegedly were being sold by the two deceased
also being asked to tell their assailants the whereabouts of the two
deceased persons and the goods which they were allegedly
Their crime, for which they were severely sjamboked, was their
failure to produce the deceased persons and the goods sought.
being escorted to various places, while being assaulted, the two
complainants were later abandoned and told to go free when
from the arrests.
a few defence cases or perhaps one case in different shades -
depending from which view point one looks at it.
all it was put to crown witnesses that they could not and in fact did
not see what they claim to have observed, at the
time it happened at
the scene or scenes of the crime. The reason being that the landscape
and/or the topography of the area - where
the alleged offences were
committed is such that those witnesses from their specified, viewing
points or positions could not have
seen what they claim they saw,
(The dispute arose - as a result an application was made for an
inspection in loco. That application
was granted. The court went for
an inspection in loco. The report of the said inspection was made by
myself and accepted by the
parties]. This dispute was put to rest
when the observations made at the inspection in loco, clearly showed
this court that nothing
could and nothing did obscure or obstruct the
sight of any of those witnesses. Then the shade of the defence case
was that the
accused persons were not at the scene or scenes of the
crimes where the witnesses claim they saw them. That they did not
the actions the witnesses claim they saw them perform. If
they were at the scenes of the commission of the crime, the accused
just watching other people those who are not before this court -
perform the acts complained off.
side of the coin of the defence case is that the actions the accused
persons were seen performing, were carried at the
orders of the chief - PW1. It is Pw1 who suspected the two deceased
persons of burglary at the SEHLOHO's shop.
It is Pw1 who invited the
accused persons to come and arrest the two deceased persons. This is
a disguised admission by the accused
that they did arrest and assault
the deceased persons, but this they carried out on instruction of the
chief - Pw1.
defence changes again to denial of the allegations made against the
accused by the crown witnesses. Defence claims that the
which the deceased died, were self inflicted. One of the deceased was
alleged to have jumped off the moving motor
vehicle when attempting
to escape from police custody. He fell and sustained those injuries
which killed him. His death, therefore
cannot be blamed on those
OF THIS CASE
early November 1990, Pw1 - Chief KAMOHO LETJAMA also known as QETO,
was awakened by a very loud, fears and anxious barking
of his dogs.
This happened at his residence in LILIMALA village in the district of
MOKHOTLONG. It was about 02.00 hours when he
was so awakened. He saw
a torch light through his bedroom window. He then stood up from where
he was sleeping and went outside
was outside, he heard the loud voice saying "it is me! MPU, the
nightwatchman at SEHLOHO'S shop!" Realizing that
intruder meant no harm, chief KAMOHO calmed down his excited dogs.
They kept quite. MPU then came near the chief and
reported that ntate
SEHLOHO's shop has been broken into. Immediately the chief ordered
that all the villagers be awakened and assemble
at ntate SEHLOHO's
shop. He further instructed MPU to return forthwith to the shop. He
went back into his house. He dressed up
and followed MPU to the shop.
On his arrival at the shop, chief found the villagers - men and women
even children already assembled
in accordance with his order. He
asked MPU to show him where the breaking-in was effected. MPU showed
him a chipped brick which
was still on the wall. There was no sign
that entry has been effect as the wall was still solidly sealed.
then and there told MPU that he sees no sign of burglary. MPU
informed the chief that he did not see the people who broke
can therefore be concluded, that he did not see them because they
were never there in the first place. The chief then pointed
MPU that he - MPU will give SEHLOHO - the owner of the shop, his
allegedly stolen property because there are no signs of
in. Nevertheless the chief ordered the assembled villagers to search
for SEHLOHO's property in the neighborhood of his
nearby field a plastic Lesotho Bank bag which contained only a couple
of copper coins was found and handed to MPU. Nothing
KAMOHO caused a letter or a note to be written to SEHLOHO -informing
him of the alleged burglary. The chief gave the letter
to two boys
who were ordered to run on foot to MAPHOLANENG where SEHLOHO resided
in order to deliver that message. It was now early
in the morning
after the sunrise. Evidence shows the court that the two boys met
SEHLOHO traveling by his motor vehicle. The boys
recognized him and
his motor vehicle. They waved him to stop but he ignored them and
drove - on. SEHLOHO's shop is situated at
the village of LILIMALA.
The area in which the village and the shop are situated is called
POOPA. LILIMALA is on one side of the
river. On the other side of the
river is the village of MAKALONG. Both villages are in the area of
POOPA which is by trade served
by that shop which is situated in
arrived at his shop that morning of the alleged burglary. He found
the chief, with the villagers gathered outside his shop.
immediately on his arrival address the gathered villagers thus, "MA
POOPA le thuoa shop ea SEHLOHO, ke shop ea borobeli
ea ka e
thuuoang!" literally translating thus "people of POOPA, you
break into my shop? This is my eighth shop which
is broken into".
The chief asked SEHLOHO "did you see the boys?.
presuming that SEHLOHO has received the news of the burglary at his
shop from those boys. The chief must have expected the
answer to his
question to be a "yes" but SEHLOHO shrugged his shoulders
indicated "no or I don't know". He
then continued his
general address to the villagers, "Batsoali khalemelang bana ba
lona. Le tlilo phura masapo le phehe setampo
ka pitsa tse kholo".
Translated: "Parents reprimand your children. You are going to
break bones and cook samp in big
pots". This is a figurative way
of threatening or foretelling the people that there is going to be
death. It is tradition
and culture amongst the people of LESOTHO to
slaughter a cattle and cook samp in big pots to feet the mourners at
are traditional and culturally attended by many
people. The chief interrupted SEHLOHO and he repeated his question -
if he saw the two boys he send to him. The chief was
becoming disgusted with SEHLOHO's behaviour.
did not accord the chief and his people the due respect and perhaps
gratitude for their trouble to wake up at what we call
hour, in order to assist him when the alarm of burglary at his shop
was raised. In response at long last to the chief's
remarked, "ah, those two boys - waving a piece of paper!"
This was by no means a straight answer. The
chief was still not
satisfied. SEHLOHO must have noticed his dissatisfaction. SEHLOHO
then proceeded to tell the gathering that
he -SEHLOHO does not need
the help from the chief, or police.
he will sort out the matter himself. He - SEHLOHO ordered the
villagers to disperse. Disappointed by SEHLOHO's attitude
matter under investigation, the chief also agreed that the people
should disperse as SEHLOHO has ordered. The people
that there were no signs of breaking -in, coupled with SEHLOHO's
behaviour and contemptuous treatment of those villagers
and the chief
who had come to assist, confirmed the chiefs suspicions that there
was no burglary at all that night at that shop.
Days went by, weeks
went by, on the 26th November, 1990 events leading to the deaths of
PAKISO and EKETSANG LEOMA begun to unfold.
gleaned from both the crown and defence cases
issue concerns the identity of the accused persons. Were they present
at the scene of the crime? Were they properly identified
the accused were present at the scene or scenes of the crime and were
properly identified what roil did they play in
the murders of the two
deceased's persons and the assault of the two complainants?
the counts, were the accused acting together for a common purpose?
Was there a conspiracy amongst the accused to murder the
persons and to assault the two complainants.
OF THE ACCUSED
SEHLOHO is well known to PW1, 2, 3 AND 4 as the owner of the shop in
their area- POOPA. Pw1 and Pw4 reside in LILIMALA village
shop is situated. Pw2 and 3 reside in MAKALONG - the village just
across the river which separated the two villages.
Al is a well known
businessman. He is known by the villagers who are served by his shop.
A2 is also known to the villagers at POOPA
including PW1, 2, 3 AND 4.
They know him as the night watchman at SEHLOHO's shop. A2 resided in
that same village - LILIMALA where
SEHLOHO's shop is situated. He is
known to the fellow villagers. The events of the 26th November 1990
happened around about 12.45
p.m. This was during broad day light.
There was sunshine everywhere according to the evidence led.
Therefore the visibility was
bright and clear.
seated outside his residence, he heard a gun report. He got up and
looked in the direction of the sound of the discharged
saw two men running in front of two horses which were without riders.
These two men were running at the bottom of the
slope of the mountain
which was facing Pw1.
yet another man in a dark blanket who was running in the same
direction as the two men below. He was running at the higher
that slope towards the top of the mountain. Another man appeared on
horseback. He raised his horse to catch up with that
man in a dark
blanket Of the two men running on foot after the man in a dark
blanket, one of them was wearing a pair of grey trousers
and a short
sleeved blue shirt. As this man slowed down or stopped Pw1 heard the
gun report. He therefore concluded that the man
in short sleeved blue
shirt must be the one discharging the gun. They all disappeared into
the river where two mountain chains
nearly meet - creating a valley.
Much later that same day Pw1 saw six or so people escorting one man
whom they were beating up
with sticks and sjamboks. They descended
into MOTSETLANENG river - This is that river which separates the two
villages ;- [LILIMALA
JOETSAMANG LELEKA hit the man with a stick causing him to fall down.
The man fell. The man did not rise up. Ntate SEHLOHO appeared
scene. He was on horse. He enquired thus, "Ntate MABUSETSA is he
refusing to get up?" Pw1 knows ntate SEHLOHO
very well. He sees
him at this scene of crime and properly identifies him. Pw1 noticed
that Ntate SEHLOHO is that man, in a grey
pair of trousers and blue
shirt, chasing after another man in a dark blanket. SEHLOHO was now
without a shirt. Therefore ntate
SEHLOHO was one of the men chasing
after EKETSANG - deceased in count II.
to collapse. He never again rose up. Those who were with the dead man
took him from where he died. One held him by his
head while the other
two held him by his lower limbs'. They dumped him at the corner of
the yard of SEHLOHO's shop. They went passed
Pw1 who at that time had
come down from his residence and was seated by the road side. Pw1
went closer to see the dead man. He
recognized and identified him as
PAKISO LEOMA. Pw1 confirmed his earlier conclusion and observations
that he was dead.
after those carrying the deceased, had dumped him, called out to Pw1,
thus, " Ntate QETO, ntate QETO, morena!"
"father QETO, father QETO, chief!" or something like that.
Pw1 did not speak but came closer to the
dead person, where upon
SEHLOHO said to him "motho oa hao ke eo" meaning "there
is your subject". According
to Pw1, PAKISO was not his subject.
He was under chief KHATLELI. FAKATHOLO MOTABOLA - Pw2 is the
neighbour of PAKISO LEOMA. His
village is MAKALONG under chief
MAKATLEHO KHATLELI. The indictment also indicates that the two crimes
of murder of PAKISO LEOMA
and EKETSANG LEOMA, happened at or near
KHATLELI - not LILIMALA in MOKHOTLONG.
villages LILIMALA and MAKALONG HA KHATLELI are separated by a small
stream. Otherwise it is one village. The exchange which
after SEHLOHO had presented PAKISO's corpse to the chief KAMOHO -
PW1, confirms that the two men -SEHLOHO and KAMOHO know
rather very well. There can be no mistake about SEHLOHO's identity
and presence at the scene of the crime. Pw1 asked
A1 - SEHLOHO why is
the dead man his subject? He wondered if SEHLOHO thinks he can eat
the corpse! There were no replies to those
questions or comments.
Under cross-examination Pw1 denied that he was the chief of PAKISO -
deceased in count 1. Ntate SEHLOHO
was merely mocking the chief - Pw1
or recognizing his presence at that scene
seated outside his residence saw three horse riders about 2 - 21/2
kilometers away - on the road from KHUBELU traveling
at the high
speed towards east. Pw2 - FAKATHOLO MATABOLA, PAKISO LEOMA and
MAEKETSANG and EKETSANG LEOMA are neighbours. FAKATHOLO's
is between PAKISO's residence and that of MAEKETSANG'S where EKETSANG
lives. FAKATHOLO was still seated outside his residence
three horses with their riders on them re-appeared below MAEKETSANG'S
residence. He heard one of them shout, "
if a man of this
MAKALONG village appears he must be shot and killed immediately or
words to that effect.
utterance brought a chill in his spine i.e FAKATHOLO - Pw2. He was a
man of that village MAKALONG - he was there - seated outside
home. Therefore he could be seen and shot dead immediately.
FAKATHOLO noticed that the man who is making this utterances is
SEHLOHO who was at that moment half naked -wearing only a
trousers without a shirt. They came to pass very close to where
FAKATHOLO was seated - estimated about 25 paces away. Pw2
and identified others in that group as MONATSI MONATSI - A7 and
LEHLAKAMETSA - A3. These are the three riders. SEHLOHO
was armed with
a hippo skin - heavy sjambok which he held in his hand and a pistol
at his waist. MONATSI MONATSI and LEHLAKAMETSA
had plastic thin whips
or sjamboks - what is commonly known as horse whips.
accordance with BASOTHO culture and tradition the three men greeted
FAKATHOLO as they rode passed him. That was acknowledging
presence. He also replied to their greetings. They passed.
riders - MONATSI MONATSI and LEHLAKAMETSA proceeded passed PAKISO'S
residence. SEHLOHO went passed the girl - MASUNDAY who
under the tree near PAKISO'S residence. She lives there. She is
deaf and dumb. SEHLOHO tried to talk to her. Pw2 heard him asking her
about the whereabouts of PAKISO. SEHLOHO tried to talk
to her in
vain. SEHLOHO did not use sign language. SEHLOHO asked MASUNDAY
"where is the owner of this house ". The girl
staring at SEHLOHO - not understanding what he said. SEHLOHO also
left - followed his companions - A3 and A7. perhaps
disappointed by not getting a reply to his enquiry.
MONATSI M0NATSI-A7, LEHLAKAMETSA-A3 Identified - taking part in the
assault of PAKISO:
those three accused persons had passed his house, PAKISO came out. He
followed behind those three horse riders - A1, A3, and
who by then had not quiet caught up with his companions, looked back.
He must have seen the man - coming behind them.
He turned his horse
back and came to the man. When he arrived where the man was he asked
him, "who are you?" The man
replied, " I am PAKISO".
SEHLOHO dismounted his horse. He produced his pistol, pointed it at
PAKISO. He ordered PAKISO
to sit on the stone which he indicated,
near the house. PAKISO sat. SEHLOHO returned the pistol to his waist.
He produced the handcuffs.
His companions - A3 and 7 were there with
him as he handcuffed PAKISO'S hands at his back. They had also
returned. SEHLOHO asked
PAKISO, "Where are the clothes you were
selling at KH0N0FANENG7'
denied ever selling clothes at KHONOFANENG. The manner in which such
question was put was an angry one. At the same time
the three men had
started whipping PAKISO with their sjamboks. By this time they were
not more than 10 paces away from Pw2 -FAKATHOLO.
He took a good look
at them all and at what they were doing - i.e. their identity and the
role each played in the assault of PAKISO.
As they whipped PAKISO
many men arrived.
juncture SEHLOHO left PAKISO and went to MASUNDAY -under the tree. He
asked her and said, "Hi!, you, what did you say
when I asked you
where is the owner of this house?". SEHLOHO started whipping the
deaf and dumb lady with his hippo skin whip.
FAKATHOLO moved towards
SEHLOHO and face to face said to him "ekaba sebopuoa sena sa
Molimo o se tsekisang?" translated
what is your problem with
this handicapped person? SEHLOHO replied, don't you see she is hiding
this person, I asked her about
him and she kept quiet".
FAKATHOLO told SEHLOHO that she does not speak. She understands only
sign language. SEHLOHO left
- with a regret or disgusted perhaps. [I
am asking myself why Director of Public Prosecutions did not prefer
an assault charge
against SEHLOHO? All the male victims and/or normal
people - have been given an opportunity to put their cases before the
I see no
difference between her - MASUNDAY and other complainants in the
assaults counts in this matter, except that she is a woman
disabled. Is this discrimination against woman or the disabled? Be
that as it may.]MONATSI MONATSI and LEHLAKAMETSA were seen
by Pw2 -
driving PAKISO - i.e. escorting him into the house. They were still
whipping him. Once in the house Pw2 did not see what
was taking place
therein. They took sometime being inside that house.
the banging of tin trunks as they open and shut or being moved or
knocked about. They eventually came out of that house,
PAKISO. They drove him passed PW2'S forecourt and between his houses.
They proceeded to MAEKETSANG'S house.
passed they were very close to Pw2 who was holding his dogs in order
to prevent them from attacking the man who was being
everyone around him. Pw2 observed that PAKISO'S face was full of
bruises from the whipping. Apart from the first three
who started to
whip PAKISO, Pw2 could not tell nor count the numbers now. A lot of
the men came down from the mountain at the time
MONATSI(A7), LEHLAKAMETSA(A3) started assaulting PAKISO. Amongst
them, Pw2 recognized and identified MPU MAQALEHA
- A2, JOETSAMANG
LELEKA and MABUSETSA -these two are late.
MEETING OF SEHLOHO AND EKETSANG AS WITNESSED BY PW2
SEHLOHO shouted, "tell that EKETSANG to hurry up" Pw2 saw
EKETSANG emerge at the foot path near PAKISO's home. He
came to his
home under escort. They drove him into his house. When they came out
EKETSANG sat down and said he was tired. SEHLOHO
said "come and
hold on the tail of my horse". Those near EKETSANG picked him up
and supported him as he walked to the
horse. He held its tail.
SEHLOHO'S horse drugged him along as the rider urged the horse to go.
Pw2 saw both decease persons in
the company of the accused persons
who were still assaulting them by beating them with sjamboks. The
deceased had sustained injuries.
They had been badly and severely
beaten. The accused persons named by Pw2 were known to him prior to
the commission of these offences.
He recognized them and identified
them in a bright clear day within a very close proximity.
MAKEKETSANG has known SEHLOHO for a year. He has known MPU since he
started his job as- a night watchman at SEHLOHO'S shop.
On the 26th
November 1990, Pw3 went to SEHLOHO'S shop. As she crossed the stream
in front of SEHLOHO'S shop she saw a white motor
vehicle van stop.
One person whom she recognized as MPU alighted. He ran into the shop.
He had nothing in his possession as he
back, still running but this time he had a stick in his hand. MPU
admits that he was armed with a stick. He boarded the
which then took off. The red motor vehicle also came behind the white
one. The two motor vehicles travelled in the
same direction and
stopped at the stream. There were a lot of passengers in the white
motor vehicle. Pw3 could not identify them
as they were not near. She
could not see if there were people in the red motor vehicle behind.
On her way back from the shop, Pw3
saw those two motor vehicles again
- traveling in the direction of her village -MAKALONG. She also saw
the three horse riders on
their horses which hurried towards her. As
she approached her home she noticed a lot of people standing in
amazement and or puzzled.
She was taunted by the passengers in that
white motor vehicle.
voices coming from the passengers of the white motor vehicle. The
first voice said "ke 'ma ngoana" translated
"it is the
mother or the mother of the child". The second voice was someone
singing a song which went as follows: "khomo
e hana ka namane"
translated "the cow is refusing with its calf" or something
to that effect. The motor vehicles
and the horses followed the road
near Pw3's residence. On horse back Pw3 recognized and identified
SEHLOHO - A1, LEHLAKAMETSA -
A3, MONATSI MONATSI - A7. A1 was without
a shirt. These are the same people seen and recognized by her
neighbour - Pw2 Mr. FAKATHOLO
accuracy of the identification by observation of an eye witness
depends first of all on his or her eye sight, the light and
distance. SVM 1963 (3) SA 183 T at 185 E. All the eye witnesses in
this matter had no complaint with their eye sight at the
question. The persons sought to be identified in this matter were
previously well known over a long period of time. These
were not making their very first acquaintances. R V DLADLA 1962 (1)
SA 307 (A) at 310- Therefore the accused person's
characteristics and clothing are of less importance. In a bright day
light and within a very close proximity, the witnesses
opportunity to recognize and identify the accused persons. There is
no doubt, that the observations of these eye witnesses
These accused were not present at KHONOFANENG where the two
complainants were assaulted. There is no evidence implicating
and 7 on the two last counts of assault. Therefore they are acquitted
on those charges.
COUNTS I AND II
definition murder is the unlawful and intentional causing of the
death of another human being. CRIMINAL LAW CR SNYMAN, Third
page 401, REX V NDLOVU 1945 AD. 373. The accused persons in this case
were seen assaulting the deceased persons by hitting
them with sticks
and sjamboks all over their bodies.
assault perpetrated upon the deceased by the accused was a very
severe one. The eye witnesses who saw the actual assault upon
deceased take place, have told this court that the deceased were
covered with blood from top to bottom. To Pw2 the two deceased
appeared to be in a very bad shape.
neighbour who knows them very well Pw2 noticed that both the decease
persons could not walk properly as they were being
driven by their
assailants between their houses. Despite this bad shape and the
obvious injuries already caused, the accused persons
did not at any
stage exercised some restraint. They continued to assault the
deceased even when they had fallen down.
the intention of those men who belabored the persons that had fallen.
The accused were seen assaulting the deceased who
sustained many and
severe injuries all over the body. One of the deceased died during
the assault. The other died shortly after
the assault. There was no
medical evidence led. The post-mortem report and medical certificate
disappeared prior to the commencement
of the trial. According to the
evidence of the eyewitnesses, the deceased PAKISO seemed to
collapse and fall into coma during
the assault as SEHLOHO - A1
sjamboked him while lying prostrate on the ground. The witnesses
observed that he died during this
episode of that assault.
was loaded on the motor vehicle still alive although his condition,
due to the assault perpetrated upon him, was pretty
bad. He had been
beaten to such an extent, he could no longer manage to walk. The
motor vehicle conveyed him to MAPHOLANENG POLICE
STATION and then to
MOKHOTLONG. He was found to be dead on arrival at the MOKHOTLONG
no evidence of ill-health or any kind of ailment suffered by the
deceased persons prior to the assault by these accused.
shows that they moved about their daily business as usual. They had
only just arrived from NATAL - REPUBLIC OF SOUTH AFRICA
had gone to seek employment.
therefore is not precluded from coming to a conclusion about the
cause of death of the deceased merely because there is
evidence. It is competent for the court to find the accused guilty of
murder on the basis of the evidence of the eye-witnesses
the accused assault the deceased to death. THABISO TSOMELA V REX 1974
LLR page 97.
proper and competent for the court to find the accused guilty of
murder where there is evidence of eye-witnesses who saw the
assault the deceased who died then and there at that spot or scene of
the assault or deceased who died shortly after the
intention to kill is always inferred from the surrounding
circumstances of each case. It is seldom express - REX V THABISO
LETJOETSO 1971 - 73 LLR at 180 B. The accused persons were armed with
dangerous weapons e.g. sticks(mabetlela), sjamboks and a gun.
vicious manner in which all the accused took part in the assault
indicates that the intention was to kill or cause grievous
harm. The bodies of the deceased were full of sjambok or sticks marks
and bruises caused by the same.
accused continued these assaults for a prolonged time not caring what
harm they are likely to cause. Even when those deceased
covered with blood from the head to their toes the accused continued
unabated with the assault. It can be said that
they intended to kill
the deceased or that they did not care if they died.
A1 was heard expressing his desire or intent to finish off PAKISO who
could not get up from where he had fallen. Al denies
he expressed his
intention in the manner described. He denies assaulting the deceased.
He admits asking MABUSETSA if the deceased
PAKISO refuses to get up.
he was informed by MABUSETSA that PAKISO is dead. This is the reply
A1 claims he got from MABUSETSA. None of those witnesses
who heard Al
asked a question, heard the said reply. I accept that he received no
reply because he, Al then proceeded to assault
the deceased. Why
would he whip a dead man? Why would he order him to rise up as he
whipped him? Can whipping resurrect a dead
man? Al did not tell this
court that he ordered the deceased to rise from the dead. His
expressed intent was "to finish him
off!" He was seen
belabouring him until he collapsed and fell into coma. His intention
to kill was made known by him to those
who heard him say "let me
finish him off' as he proceed to whip him to death. The three accused
- Al, a2 and A7 are found
guilty of murder with a direct intent to
A2 and 7 did not express their intention to kill anyone of the
deceased persons, they were seen by eye-witnesses take part
assault of the deceased persons. They were alt armed with various
weapons. They were aware of the weapons in the possession
co-accused. There was a strong possibility or likelihood of their
being used, in fact they saw their co-accused use the
their possession during the assault upon the two deceased persons.
shows that the accused moved all together. When the deceased persons
were caught and attacked each and everyone of the
participated in the assault. They all acted together for a common
purpose. Whether or not initially the common purpose
was to apprehend
and arrest the deceased persons, the manner in which the intended
arrest was carried out was recklessly excessive
and dangerous. The
accused committed the assaults while carrying out an illegal arrests.
assaults were not a method of arrest but an exertion of intended
punishment. This was wrong and unlawful. They all took part
and regardless of the consequences. The accused persons were seen and
identified amongst the assailants of the deceased
person. They were
participants - not by-standers. All the accused were armed with
sticks and sjamboks which they were seen using
as they hit the
deceased on the body with the said weapons. They accused were acting
together. They all accept that they went to
arrest the deceased
persons. They were then observed assaulting the deceased as they
arrested them. They caused the injuries inflicted
all over the
manner in which they carried out the said assault, so severe and
vicious, clearly indicates their common purpose was to kill
deceased. None of them disassociated himself with that assault,
deceased persons were being assaulted, they were being driven around
- giving anyone who wishes to disassociate himself with
of the assailants to drop or fall away. No one intervened to restrain
the others from continuing the assault. They
continued the beating of
the deceased until one of them died on the spot during the assault.
The person who engages himself in
the unlawful assault of another, is
guilty of murder if that person died during the assault or
has shown this court that the accused persons searched for and hunted
down the deceased on the suspicion that the deceased
broke-into SEHLOHO 'S shop and stole some property which was not
known. This may be true or false. But the accused believed
entitled to arrest the deceased. That belief too may be wrong but its
correctness is not an issue. The accused must be
accordance with their beliefs. The accused therefore had a grudge
against the deceased. The extenuating circumstance
is any factor
which may serve to reduce the blameworthiness of the crime the
accused has been convicted of. Their anger against
the deceased is an
extenuating factor. I have found that the manner in which they
assaulted the deceased, was a clear demonstration
of their anger.
his evidence told this court that even the manner in which the
accused asked PAKISO questions, was the angry one. The accused
that they were arresting the deceased persons for a wrong they had
allegedly committed. They were excessive, malicious and
cruel in the manner in which they went about effecting the said
arrests. Although they are not excused, their blameworthiness
reduced. Therefore they are not going to pay the ultimate price of
death as they should because there are extenuating circumstances
may have been aggrieved, but the manner in which you went about to
ventilate your said grievances was itself a blatant disregard
law. What is even more disreputable is the fact that you went about
publicly - showing the general public that you have
whatsoever for the law and/or the law enforcement agencies. Courts
are part and parcel of law enforcement agencies.
describes you as a community leader who out of your own pocket
finance or fund some social and sporting activities
in your area
POOPA where you make or earn some of the money that you use in
financing those sporting activities at MAPHOLANENG, you reigned
terror on the 26th November 1990. You were traveling in POOPA with an
army of 40 -50 armed men.
such a show of power and strength. There were men and women standing
and watching in amazement the match of your army. When
that you have attracted and held their attention you made threatening
utterances which were intended to and did in fact
instill fear to the
hearers. We read in news papers about the private armies in COLUMBIA
- SOUTH AMERICA. BASCOBA did not only
have his own private army but
his army was even bigger and better equipped that the national or
state army. The powers of the "drug
lords" in SOUTH AMERICA
by far surpassed those of state agencies. They are loved and
respected by the members of the community
as the providers of jobs
and other means of earning their likelihood.
are a powerful person to be able to recruit and command that size of
your private army. You must find a proper balance of
True, it is not easy to be good to everyone at all times. But one
should not go out of one's way to commit the activities
people to death in broad day light, in public. A1 on the occasion of
the alleged burglary at your shop, you demeaned
the chief before his
subjects. You pointed out that you do not need the chief/and the
police. These are some of the institutions
which maintain law and
order in this Kingdom. They cannot be dispensed with. But you did and
proclaimed that you will sort out
the matter yourself. The commission
of these offences is how you sorted out the matter yourself.
recruited these other accused into your army. A7 and others are such
recruits. Your nightwatchman - A2 was not telling the truth
occasion when he woke up chief KAMOHO - Pw1 and reported burglary at
your shop. There had not been any breaking-in. Your
behaviour on your
arrival at the scene confirms that.
what Pw1 said to A2 at the time when he realized that A2's report
about the alleged burglary, was false. He said to him
give SEHLOHO his goods now that I see no sign of burglary". A2
-MPU you are the one who started the ball rolling.
events culminated into the loss of two young lives. EKETSANG was
forced to leave his three months old baby who will only learn
of his or her father's tragic death. May be PAKISO'S children heard
of their father's painful death, but because of their
tender age may
be they do not appreciate its significance right now.
sent to jail, your counsel has already pointed out to this court that
your dependants will suffer some inconvenience or
even hardship. But
that is only temporary. You are alive. You are still with them.
PAKISO'S and EKETSANG's dependants are permanently
deprived of the
breadwinners. This did not just happen.
weeks or so after the alleged burglary at ntate SEHLOHO'S shop he
went about recruiting members of his private army -
how on earth did
he find 40 -50 men he used to attack and kill the two deceased
persons? Did they fall from heaven by magic? The
answer is certainly
"No" those that came to join your army on what basis did
they join? A7 you are said to be the father
of twelve children. Very
well this court is urged to bear in mind their welfare when
sentencing you. To you all. A1, 2, and 7 what
roll model are you to
your children? Big bullies? Who with violence instill fear or even
harm others? You were showing off how
powerful you were. Now in the
21st century, the rule of the survival of the fittest has no place in
experience is a very hard master. It is hoped that you have learned
from this experience though I have my doubts because during
course of this trial, many of you accused persons for one thing or
the other, were arrested, convicted and jailed for wrong
is no time when you hesitate to take the law into your own hands. The
Director of Public Prosecutions indicated before
this court after
your conviction of these murders, that you have no previous
convictions. Yes, you were convicted after you have
crimes. You know the delay in bringing this present matter to
finality was caused by the fact that some of you
were not able to
attend the continuing trial because you were in jail in Republic of
South Africa and also in this country.
impression you made before this court is that you have no or very
little respect for the law. The law has a very long arm. It
to get you but eventually it did. You must now learn to respect it.
murders are treated as one for sentence. They were carried out with
one and the same objective at one and the same time.
A1 - 25
years imprisonment - for both counts I and II
A2 - 25
years imprisonment - for both counts I and II
A7 - 25
years imprisonment - for both counts I and II.
term imprisonment in respect of Al, A2 and A7 must start running from
: Mr. Motsamai
: Mr. Thetsane
Defence : Mr. Ntlhoki
: Mr. Nathane
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