HIGH COURT OF LESOTHO
MPEPEA 3RD ACCUSED
MASOKELA 4TH ACCUSED
NTJELO 5TH ACCUSED
HON. MR JUSTICE S.N. PEETE
MESSRS KHOBOKO AND MONATHI
15™ JUNE 2004
 The five accused are summarily indicted upon a charge of murder
it being alleged that on the 9th day of January 2000 at or
Seeiso Roma in the district of Maseru, the said accused did one or
other or all
them unlawfully and intentionally kill Mantsonyane Masokela. To this
charge all accused pleaded not guilty.
 The Crown called Mahapa Mokopi P.W.I who informed the court that
he and all five accused are co-villagers of Khokhotsaneng
- Roma, ha
Seeiso and that on the early evening of the 8th January 2000 an alarm
was raised about one Thabang Ntsane who was attempting
to rape one
Mankotseng Matlakeng - a breast - feeding woman in the village.
 He says that this offending Thabang Ntsane was soon detained by
the villagers and men sat down to guard him till he could
over to the police. He says that all five accused were present among
the men guarding Ntsane.
 He says (hat later that night Accused No.3 came around them
announcing audibly: "I ask all men of the mountain to go
speak'' - and he asked, "where are you going'' - since he did
not know who "men of the mountain were". Accused
"they know themselves".
 He goes on to say that Accused No.l, No.2, No.3, No.4 and No.5
including one Aupa Lepheane and the deceased stood up and all
left them guarding Ntsane. These men said, We are coming back".
W. 1 says he has never been to a circumcision school.
 Early that morning he and other men (including Potlako Masokela,
deceased elder brother) got a letter from the Chief forwarding
offending Ntsane to Roma Police station.
 En route to Roma Police Station, they passed a man and a woman
walking behind a donkey who alerted them about a corpse lying
prostrate near a footpath.
 As he approached he says he recognized the deceased by his
blanket he wore on the previous night and that Potlako Masokela
immediately identified the prostrate man as his brother. His body had
whip marks all over.
 They noticed footmarks trailing to the donga; these they
followed till they reached a spot in the donga where they saw many
broken tree branches and a belt. They then raised an alarm having
immediately returned to the village. He was with Dyke and Thabang.
 He concluded his evidence by stating that all five accused were
missing from the village that morning; and that they came
the village only upon their release on bail.
PW.2 Potlako Masokela told the court that he knew all the accused.
 He says that he knew that Thabang Ntsane had been detained on
the 8th January 2000 because he had assaulted someone's wife.
guard him overnight though.
 He says that on the morning of the 9 January 2000 they came
upon the dead body of his brother near a donga; and upon further
inspection they saw that his shoes were missing and it looked as if
he had been dragged from the nearby donga.
 When the police arrived, he says he then noticed whipmarks all
over the body.
The police then took the body to the Government Mortuary at Queen II
[I6] PW.3 Directive Trooper Tsalong told the court that he was
stationed at Roma Police Station when a letter from the chief of
Khokhotsaneng arrived reporting about the death of the deceased.
 He, Moeletsi and Seeisa - all police - went to the village of
Khokhotsaneng and were led to house where a body was shown
apparently the body had been carried from the veld where it had been
found and transported into the village to await police.
 Having inspected the body and observed the whip marks and weals
they then went to the scene where the body was first discovered.
 In the nearby donga, they saw tree - a blue wattle plantation
and at one spot they found many broken tree branches - they
a rope lying nearby.
They later took the body to Maseru for post mortem examination.
 He says a day after the 9th January he got a report from Maseru
Central Charge Office concerning the accused and he later
Maseru where he found the five accused who made some explanations But
said "those are issues of men of the mountain"
He handed as exhibits a bundle of sticks Ex.I as being those he
collected from the donga.
 Under cross examination of Mr Fosa for the accused he admitted
that it seemed some people had been to the scene prior to
arrival at the donga but that the tree branches looked freshly cut.
Question: How did you learn the accused came to the Maseru
Answer: I learned that they had surrendered themselves.
Question: Accused deny surrendering themselves to police or giving
Answer: They did ... on the 9th January 2000.
Question: They say they were arrested individually?
Answer: That is not so.
 P.W.4 Sello Masokela told the court that on the 9th January
2000 he had received a report concerning his brother and upon
he had found the prostrate body of his brother with weals over his
body; he was bleeding slightly from the nostrils.
He says that after tracing the trail and finding many broken tree
branches in the donga, they waited for the police to arrive but
towards midday, it was decided to take the body into the village as
the body was now beginning to swell. No cross examination
 PW.5 Dyke Noko confirmed in essence what P.W.I had already told
the court-namely that Accused No.3 had asked the "men
mountain" to go out and talk and that all accused including the
deceased had left their company which was guarding
Thabang Ntsane. He
says the accused never come back; he only saw them when they were
released from custody on bail.
He went on to say that as they were escorting Thabang Ntsane to Roma
Police Station they came upon the prostrate body of the deceased.
 The crown counsel Mr Seitlheko then handed in with the consent
of the defence, a post mortem report by a certain Dr Lukemba
-purportedly made on the 13th January 2000. The report states that
death was due to severe injury complicating subdural bleeding
fairly nourished person. Death attributable to assault.
No cross examination.
 PW.5 Sergeant Matsela then informed the court that on the 10th
January 2000 at the Maseru Central Charge Office she was on
when five men arrived and reported themselves to policewoman Matela
indicating that they "had killed a person"'' She
noted down their names in the Police Occurrence Book - It read:-
"551 1655 - Arrest: Sgt Matsela arrested the following
suspects: Selibo Selibo, Kumi Kumi, Thabang Masokela, Polokoe Mpapea,
Lethabo Ntjelo -Charge - Murder - RCI 17-1-2000."
A certified copy of this O.B. note was handed in.
 She identified the five accused in court as the men who
surrendered themselves at the charge office on that day. She
that in police practice when a suspect surrenders himself,
the record reads: "Arrest and not "surrender".
 She says that the accused were later transferred to Roma Police
Station who had been radioed.
 Under cross examination she says she could still recall the
faces of the accused "I have that special gift by God"
 After the crown had closed its case, an application for
discharge of all accused at the close of the crown case was made
Mr Fosa under section 175 (3) of the Criminal Procedure and Evidence
Act of 1981. I dismissed the application and my reasons
Mr Fosa then closed his case without calling any of the accused. 
Section 12 (7) of the Constitution of Lesotho of 1993 reads
(7) "No person who is tried for a criminal offence shall be
compelled to give evidence at the trial."
law an accused can elect to close his case - as the accused have done
- after the close of the crown case. Three situations
there is no evidence implicating the accused;
there is prima facie evidence against the accused but not
there is strong evidence implicating the accused.
 In (a) accused need not give evidence and he must be acquitted;
for (b) and (c) if the evidence is direct and credible, the
of the accused to give evidence to rebut such evidence may render
such evidence conclusive - S v Theron 1968 (4) 61 where
Trengove JJ had this to say at page 63 H to 64 C.
"Generally, in regard to an accused's failure to testify, a
useful, practical distinction can be drawn between situations
which the State's case is (i), if the testimony is wholly credible or
non-credble, no problem arises, for in the former case
the accused's failure to contradict the credible evidence must and,
in the latter case, it would be irrelevant: there would then
prima facie proof and the accused silence could not make or restore
the State's case. It is only when the State's evidence,
amounting to prima facie proof creates some doubts about its
credibility that the accused's silence becomes important,
and may be
decisive, for his failure to contradict the State's evidence may then
resolve the doubt about its credibility in the
State's favour. Of
course, if the accused adduces other . evidence to contradict the
State's, his silence would then usually lose
much, if not all, of its
importance. Similarly in (H) if the inference of the accused's guilt
or innocence can be drawn with the
requisite degree of certainty, the
accused's silence is unimportant. It is only of importance if,
although there is prima facie
proof of his guilt, some doubt exists
whether that proof should be now regarded as conclusive, that is,
that the only reasonable
inference from the facts is one of guilt.
His silence then "becomes a factor to be considered along with
the other factors,
and from that totality the Court may draw the
inference of guilt. The weight to be given to the factor in question
the circumstances of each case. " (per Holmes J.A,
in S v Letsoko and Others, 1964 (4) SA 768 (A.D.) at p 776 C-E. See
R v Ismail, supra, p210 S v Atasia. (A.D.) 1962 (2) SA 541 (A.D.
litis case following are uncontroverted facts of the case.
accused Wo.3 called up all "men of the mountain" to rise
and r.o for a talk.
the deceased joined this group of the men of the mountain with all
the dead body of the deceased was found with weals all over the body
on the following morning. There is no direct evidence
the accused were no where to be seen on the following morning and
thereafter till they returned upon release on bail.
the 10th January 2000 all accused surrendered themselves to the
Maseru Central Charge Officer and made explanations regarding
death of the deceased.
the accused and deceased were all men of the mountain.
the natural course of things, innocent people do not report or
surrender themselves voluntarily to the police and make explanation
regarding death of someone in whose company they were last
 The accused have elected to close their case without leading
evidence in the face of a strong circumstances case against
That the circumcision "koma" prohibits them to reveal
anything they did at the donga to the deceased does not stand
good stead. That is their "law or koma" and one which is
hardly recognized by this court.
 I am convinced that for whatever reason (which the accused saw
fit not to divulge to this court) - the accused one or other
of them assaulted the deceased with tree branches causing his
ultimate death -
which they however ought to have foreseen. I hold that the crown did
not succeed to show that they intended to kill in a subjective
I find all the accused guilty of the crime of culpable homicide.
Crown Counsel: No previous convictions
Mr Fossi: In mitigation.
Sentence: Each accused shall receive five strokes and in addition
thereto each shall pay M1000.00 to be all paid over to the widow
the deceased before the end of November
: Mr Seitlheko
Defence : Mr Fosa
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