HIGH COURT OF LESOTHO
NKETU - ACCUSED NO.l
NKETU - ACCUSED NO.2
NKETU - ACCUSED NO.3
NKETU - ACCUSED NO.4
by Mr Justice W.C.M. Maqutu on the 12th May 2005
separation of trials was ordered and a warrant of arrest was issued
against Thabang Nketu and Oriele Nketu.
mentioned accused namely Thota Nketu, Bakoena Nketu, Mokete Nketu and
Rethabile Nketu are charged with murder:
"In that upon or about the 16 th December 2002 and at near Ha
Senekane in the district of Berea, the said accused did one
other of them, unlawfully and intentionally kill TAPEANE THABANG.
Tseko and did commit the crime of murder."
added two counts of unlawful possession of firearms against all
accused without objection from the defence.
accused pleaded not guilty Trial commenced on the 27th April 2005.
witness Pwl was Mafereka Tsukulu. He told the court he knows all the
accused and the deceased as they live in Ha Senekane.
On the 16th
December 2002, he had received the complaint of accused 2 made on his
behalf by his of the chief. Accused 2 was accompanied
by the three
accused. They were also with Thabang and Oriele - who are not before
court. All six of them are brothers. Accused
2 laid a complaint
against deceased Thabang Tseko to the effect that deceased had shot
his cow. Accused 2 wanted deceased to be
called before the chief
immediately to answer this allegation. After asking accused 2 a few
questions and been told that deceased
had been seen through the
window the previous night, Pwl and the chiefs court concluded this
matter should be referred to the police
exchange of words took place between Pwl and the others who presided
over the matter and accused 2. The other accused were
Accused 2 wanted deceased to be directed to take the injured cow and
give him an uninjured one. Pwl referred the matter
to the chief, and
the chief directed that a letter be written to the police and given
to accused 2 to take it to the police. After
the letter had been
written, it was handed to accused 2 who was with accused 2's uncle
called Tseliso and accused 2 left the chief's
accused 2 was 12 to 15 paces from the chiefs court, deceased came
from his home nearby. As deceased passed the chiefs court,
accused spread out and followed the deceased. It was at that stage
that Pwl realized that all the four accused together
with Thabang and
Oriel were armed with fire-arms. Tseliso Nketu their uncle came back
to the chiefs court that had been sitting
in the open beside the
Tseliso Nketu (who is the uncle of all the accused) to reprimand and
stop all the accused who were going towards the deceased.
Nketu's reply was that Pwl should stop them himself. Pwl retorted
that Tseliso Nketu was their father, they would listen
to him more.
Pwl says he saw accused 2 and Oriele Nketu other called after all the
accused. The person they actually called by
name was Mokete Nketu,
accused 3 who was
the others. At that time accused 2 (Bakoena Nketu) and Oriel mount
their horses and going towards the deceased also. The
Tapeane was just walking in the road.
time the accused and the others (namely Oriel and Thabang) reached
the deceased. Fire arm reports were heard. Pwl told the
court that he
actually saw all this. The accused and the others chased the deceased
until the deceased reached the home of Mamohlapele
the accused and the others reached the residence of Mamohlapele, they
became out of sight. It was at Mamohlapele
that several gun reports were heard. After a short while Oriel Nketu
passed near the chiefs court and shouted,
and he said "go and
call the police we have killed that dog." As he said this, the
other accused and Thabang were still
around the precincts of
Mamohlapele Moshoeshoe's home.
directed Pwl to write a letter to the police. This Pwl did, and took
it to the police and came with the police. Pwl told
the court that
inside the wall of an unroofed building they found the deceased dead.
Deceased's corpse was covered with blood.
He saw a wound on the
deceased's head -he did not see other wounds as deceased's corpse
still had clothes on. There
firearm next to the deceased's corpse - the deceased had not been
the court that the four accused, Oriele and Thabang were brothers bom
of the same parents. They were related to him by
marriage to PwL
Deceased had passed five to ten paces from the chiefs court without
saying any thing. The cow that accused 2 reported
about - from
accused 2's report had still been alive, but Pwl never saw it.
Pwl said he did not know of any bad blood between deceased and the
accused. Pwl in answer to question said he had
not heard that on the
15th December 2002, deceased (Tapeane) had during the day had claimed
that accused 1 had stolen his cattle
at the cattle post when they
met. He was not aware deceased had manhandled accused 1 causing
accused 1 to run away. Pwl had not
heard gun reports during the night
preceding the 16th December 2002. Nor did he know that during that
night deceased and two men
had discharged firearms into the air near
accused l's home. Accused 1 's home is about 600 metres from his
questions Pwl said he had no personal knowledge that deceased and two
men attacked the home of accused 2 in the night
and drove away a cow
belonging to accused 2. All Pwl recalls is the report of accused 2
that was made at the chiefs court. That
report referred to deceased
having been alone when he drove away the cow of accused 2. Accused 2
had said his cow was shot - he
wanted deceased to be called. Accused
2 never said his cow was stolen.
the court that all the accused were wearing blankets - it was not
true to suggest they were not wearing blankets when they
were at the
chiefs place. Pwl told the court that they went to the police with
answering further questions told the court that it was not true to
say the deceased confronted the accused when they left the
place. It was the accused who went to the deceased. Pwl told the
court that he actually saw the accused when they came to
deceased. There was no kraal in front of Mamohlapele's home
obstructing his line of vision. The kraal is below Mamohlapele's
place. There is a road that passes below the chiefs place going to
the tarred road. There are trees and aloes surrounding the chiefs
the court that he did not know if deceased was already injured when
he ran to Mamohlapele's place. Pwl told the court he
did not hear
deceased insult accused 1 and 2 and Thabang. All he heard were gun
reports when they got to the deceased. Pwl told
the court it was
false for the accused to say the deceased ever fired at them at that
stage. The accused and deceased were more
than 15 paces from Pw1 -
consequently Pwl was not too far not to know who was the aggressor.
Pwl and the others were calling the
accused back when they went to
the deceased. The accused produced fire arms and fired at the
deceased. It is false that only accused
1 and Thabang produced
firearms - it is also false to say the others did not have firearms.
- answering question - he does not know what happened at
Mamohlapele's place. He how ever denies that only accused 1, Oriele
and Thabang who got there. He saw all the four accused, Oriel and
Thabang get to Mamohlapele's place. Oriele and accused 2 were
horse - back. Pwl told the court he does not know if deceased fired
at the accused and they merely returned the fire. It is
there was firing animals scattered
was confusion - but there was of dust. It is not correct that
deceased was carrying a gun that Pwl could not see.
the court that he saw the police pick several empty bullet casings.
Pwl told the court he believed the accused had hidden
their fire arms
and that there were not only two firearms. Pwl denied only accused 1
and Thabang had firearms that were fired that
day. Pwl told the court
hat he does not know if the eight empty fired cartridges came out of
the deceased's firearm.
witness Pw2 was Lebohang Mabuse who told the court he resides at Ha
Senekane and is 56 years old. He told the court he
knows both the
deceased and the accused, all of whom resided at ha Senekane. On the
16th December 2002 he was among the people
who were at the chiefs
court with Pwl, Tseliso Nketu. Josias Mopeli came with accused 2 to
take a letter to the police, because
it was alleged deceased had shot
the cow of accused 2 during the night. This was between 6.45 am and
accused 2 had been given a letter to the police the other three
accused, Oriel and Thabang followed the deceased who was walking
the shops. They followed the deceased in a hurry. Oriele was on
horse-back while they were watching they heard gun reports
form the direction they had gone. Pw2 says immediately thereafter, he
saw deceased 3, accused 4, Oriele and Thabang. They
got out of view.
Mamohlapele Moshoeshoe shouted saying "here are people killing a
person at my home." Pw2 told the court
he heard gun reports.
After gun reports had stopped they went to Mamohlapele's home. Pw2
told the court he saw nothing as they
had been wearing blankets - he
just heard gun reports.
got to the unroofed building they found deceased seated leaning
against the wall where he had been hiding, dead. He concluded
deceased was hiding because this building was full of stored
property. Pw2 said he saw no gun next to deceased - but there were
several empty cartridges next to body. Deceased's body had bullet
wounds all over the body. Pwl told the court that they waited
police. At that time the accused had left.
the court that he did not see deceased converse with the accused. The
accused followed deceased. Pw2 does not agree to
the suggestion that
deceased fired at the accused.
Pw2 said what happened at Mamohlapele's he could not see because they
were out of view. If accused say there were
only two firearms - Pw2
said nobody knows because the accused were wearing blankets. Pw2 told
the court that accused 2 and Oriel
went with the other accused. If
accused 2 and Oriel were going to intervene Pw2 said he does not know
- all he can say is that
they left with the other accused from
Mamohlapele's home after the shooting. The shooting took place in the
All he can say is that he had also heard gun
reports as they were chasing deceased.
witness Pw3 was Jonas Ntsubise Mopeli. He told the court he resides
in the same village with the accused. He knew the
deceased. Pw3 told
the court that he was illiterate. On the 16th December 2002 accused 2
arrived at Pw3's place to report that
deceased had invaded his home
and taken his cow. He took accused 2 to the chief so that a letter
could be written to the police.
That letter was written by Pwl on
behalf of the chief and read it to them. Pw3 told the court that he
never saw the deceased that
is all he knows.
called Thabo Rakotsoane as the fourth witness Pw4. He told the court
he knows the accused and the deceased. On the 16th
December 2002 he
got to the chiefs place at the time accused 2 was asking that
deceased be called to the chiefs administrative
court. It was between
7 and 8 am. Accused 2 was claiming that his cow had been injured with
a firearm. He was with others including
Pwl and Pw2. The chiefs court
ruled that it was going to make a letter to the police.
Nketu with his younger brothers Thabang Nketu, accused 3, Accused 4
and Accused 1 were also at the chiefs court sitting along
As the letter written to the police was read deceased passed near the
court. Accused 2 was very angry. Pw4 told the court
he saw accused 1,
accused 3 and accused 4 going in the direction that deceased had
taken. Pw4 could not see more because he was
seated inside the chiefs
court. Several gun reports were heard in the direction the accused
had followed. Pw4 says he then saw
the accused chasing the deceased
towards Mamohlapele's place. Deceased was being chased by accused 3,
Thabang and others.
accused had firearms. Pw4 heard more gun reports at Mamohlapele's
palce. Pw4 remained at the chiefs court until the police
came. He got
as the police were putting the corpse of the deceased in the police
vehicle. Deceased had passed in shirt sleeves
eating something from a
plastic bag. Deceased was unarmed - he passed the chiefs court
without speaking to the accused.
cross examination Pw4 said he does not remember making a statement to
the police. Pw4 told the court in answer to questions
that he saw
accused 1 carrying a firearm when he left Mamohlapele's place. Pw4
also told the court that he saw Oriele and accused
2 go to
Mamohlapele's they found the others who had invaded Mamohlapele's and
joined the fray. All six of them had firearms. Mamohlapele's
than 100 metres from where he was. The place is open and he could
see. The house of Moshoeshoe is at the side and does
not obstruct the
view. Pw4 said he saw what was happening in the unfinished building.
All the accused had guns every one of them
participated in the
shooting. It is not true that only three of them got there.
then called Mamohlapele Moshoeshoe as the fifth witness Pw5. She told
the court that she was semi literate and had done
the old standard 3.
She is 78
years old. She know all the accused and the deceased. They are
children of the village of ha Senekane in which she lives.
16th December 2002 at about 7 am she had been in her vegetable garden
with her grandson Limpho Motsoahae. She heard some
one coming running
with loud foot steps.
the deceased who had a wound on the forehead. It was a fresh burnt
wound Deceased had nothing in his hands. Pw5 showed him
one of her
house in which to hide. While she was standing outside, she heard a
loud report of firearm. She saw people with firearms
among whom was
accused 2 accused 3, Thabang, Oriele, accused 1 and accused 4. Pw5
asked what was going on but she got no reply.
They went where the
deceased had gone. Pw5 told the court that she ran to the chiefs
place calling the chief to come to her rescue.
As she was running
towards the chiefs place she had heard a voice say he is in here, it
had come form one of the six men who had
come to her place.
chiefs court Pw5 said she found many men surrounding it. One of them
was sitting next to a table. Pw5 said to them "my
children I am
firearms." The man sitting next to a table said he was helping
her by sitting like that bending his head. Tseliso Nketu
was the only
one who looked at her. Those many men did not come to her assistance.
back to her home. As she did so, the gun reports intensified. She
used a passage to get there. As Pw5 went towards where
deceased to hide. Thabang Nketu had climbed on top of one of her
houses. At that time he shouted - we have finished
him. They cocked
the things they were holding. Thabang got down from the house. At
that time accused 2, Oriele accused 1, accused
3 and accused 4 went
out of the gate. She entered the house in which deceased was, and
found that deceased was dead.
back to the chief complaining that the chief had failed to help her.
The accused and the others of their group were standing
yard. She then went to the T.Y. police to report the matter. Pw5 told
the court that she has six houses. Deceased was
in the house in which
once kept chicken. The accused had no wounds while deceased was
covered with blood and bums.
Pw5 said a long time had passed but she had not forgotten her
statement. Pw5 was read a statement made to the police
in which she
read the following passage:
"I found the person was Tapeane Phaloane, even before I asked
him what was the matter Thota Teboho Nketu, Oriel Nketu, Thabang
Nketu, were coming following him. I realized these people were
chasing Tapeane I beckoned him to come and hide in the unroofed
building. He did actually hide. AH these people were holding firearms
in their hands."
ordered that the entire statement be read to her. Among other things
Pw5 said he picked 4 shells which she took to the
identified her signature on the statement but denied it was her
correct statement. Pw5 said the police never read back
to her what
they had written. They said she should sign what they have recorded.
Consequently she does not understand the statement
as it is not
complete. Thabang had said "here is he is." Accused 2 had
being riding a horse round her yard. The other
five came into her
yard. The police had omitted some of the things she said. The
statement is wrong there were no two Thabng Nketu's
at her place -
there was only one. Pw5 admitted that on 17th December 2002, the
events were still fresh but she told the court
her statement is not
called the sixth witness Sankoela Moshoeshoe Pw6. H e told the court
he was the son of Pw5. He also resides at Ha Senekane
and knows all
the accused and the deceased. He was asleep between 8 and 9 am. He
was woken by gun reports outside. He did not go
out. He peeped
through the window and saw accused 2, Oriel Nketu, Thabang Nketu,
Accused 1, Accused 3 and accused 4 firing. I closed
After the shooting I only saw accused 2, accused 1, Oriel, accused 3
Thabang and accused 4 leave the yard of Pw5.
Pw6 told the court he
did not see the deceased before he was shot that day. He later
reported the matter to the chief.
cross-examination Pw6 said he agrees that firearms and shooting were
an important thing that ought to be in his statement.
taken by the police was not read back to him. He acknowledged the
statement when he signed it. The signature on it
was his. In 2002 the
events were still clear in his mind.
portion of the statement read to him stated:
"It was around 7 hours or 6 hours. I was sleeping at my parents
home there I heard gun reports, I woke up and peeped through
window. I then saw Tapeane Phaloane passing near the house I was in.
After Tapeane had passed Thota Nketu passed followed by
what appeared to be happening they were chasing the accused holding
firearms. After they had passed and gone in the direction that
Tapeane had gone I heard several gun reports. I heard one of them
"here he is."
answering questions noted that (according to the police statement) he
did not say he saw others or that other than Oriele and
were holding firearms. - Pw6 said he told the police that he saw the
others after the shooting, and he also saw they
were also holding
firearms. The witness said he was surprised that the statement to the
police did not state that he saw Thabang,
accused 2, accused 4 and
accused 3 get out of the yard, he is surprised. About the holding of
guns Pw6 said he told the police
he saw Accused 1 and Oriele, others
joining them later when the shooting took place. Pw6 said he heard
gun reports but did not
see any shooting.
senior inspector Mothebeli who told the court that he was in the
bullistics section. He received training in the Metropolitan
Laboratory in London. He was brought two firearms (pistols) and
several fired cartridges. He found that the two pistol
had fired some
of the empty cartridges shells. His report was handed in and marked
report showed that about 8 fired cartridges had been fired in a 90 mm
Parabellium Model 80 Luger Pistol that was not there for
concluded that there were least three pistols fired where those fired
cartridge cases came from.
then called Pw8 Trooper Tsakulane as the eighth witness. He told the
court accused 1 and accused 2 came to the Sefikeng
police post on the
16th December 2002. Accused 2 said he had brought accused 1. Accused
1 did not give Pw8 a firearm Iicience of
the firearm he had brought -
when Pw8 demanded it. Pw8 charged accused 1 with unlawful possession
of a firearm and a charge of
murder. Pw8 proceeded to Ha Senekane
with trooper Thula and Trooper Tletu. There the chief accompanied him
to the home of Mamohlapele
Moshoeshoe - Pw5. In an unroofed building
he found the body of a male person. The name of the dead person was
reported to be that
of Tapeane Tseko.
undressed the body and found it had an open wound on the forehead,
bullets wound and the head, chest right groin, another on
groin. These wounds were holes - consequently Pw8 concluded they were
bullet wounds. Pw8 collected about 13 fired cartridges
near the body.
They took the body to the mortuary. From information received accused
2 was arrested at the Maseru border post.
He gave accused 2 a charge
the court that the Officer in charge of investigations was Inspector
Jane who died in February 2003.
he also arrested and charged Oriel Nketu. Pw8 handed in the firearm
without serial numbers and it was marked Exhibit 1
and the 13 fired
cartridges were marked Exhibit 2 collectively. Pw8 told the court he
does not know who arrested accused 3 and
4 and others.
Pw8 told the court that he demanded an explanation from accused 1.
Pw8 agreed with counsel that he did not tell the
court that he
followed up the explanation of accused 1.
medical report was admitted by consent in terms of section 273 of the
Criminal Procedure and Evidence Act of 1981 it was marked
"B". The identity of deceased was not disputed. Pw9
Mahapeba Phaloane was called to prove that deceased was also
Phillip Thabang Tseko.
closed its case.
defence called Accused 1 as its first witness. He said he resides at
Ha Senekane. He knows deceased. On the 15th December 2002
had grabbed him by the clothes in the neck region. Deceased demanded
from accused 1 production of his cattle that he alleged
accused 1 had
taken in the cattle post in the mountains. Accused I denied this. As
deceased attempted to assault Accused 1, accused
the night accused 1 and two other people came to his residence and
discharged a firearm about ten times. Accused 1 did not
Deceased had knocked at the door of accused 1 but he did not open the
door. He saw that the person knocking at the door
was the deceased
through a widow. As they were doing this deceased and his two
companions were pulling a cow that belonged to accused
2. When he
thought deceased had gone he went out, but when he got out deceased
chased him with a fire arm and fired at him six
times. Accused 1 ran
to his parent's home. There he found accused 2 who told him deceased
had invaded him, and left with accused
2's cow that he was pulling
with a rope. He and accused 2 went to the chief in the night. The
chief told them to come the following
following day they went to the chief who took them to the senior
chief Sekete Masupha. Before they got to the chief their uncle
Tseliso Nketu brought the cow of accused 2 which had lost an eye and
had injuries all over the body. They did not take the cow
chief. At the senior chiefs place Pwl was acting as a chief. A letter
was written based on the report accused 2 made. Accused
2 handed the
letter to him. Accused 1 was taking this letter to the Sefikeng
police with Thabang - but they did not reach Sefikeng.
When they were
about to leave deceased met them. The other accused and Oriel had
been left at the chiefs place.
accused 1 and Thabang met the deceased. Deceased insulted them and
said "Nyoa meng ting le etsang?" Translated this
"Your mother's vagina what are you doing?" At that time
they were not doing anything they were just walking. Deceased
out a firearm and fired. They were a bit far and out of view from the
chiefs court - about 30 paces. Accused 1 told the
court that he and
Thabang pulled out their fire arms and fired back. Deceased then ran
away. None of them had been hit, Oriel joined
them when they left
Mamohlapele's place - they were only two with Thabang at that stage.
told the court he and Thabang chased deceased who had run to
Mamohlapele's home. They could not leave the deceased because
were already fighting. They could not find the deceased at
Mamohlapele's. Just as they were about to leave, the deceased fired
at them from an unroofed building. He went towards deceased and fired
four times at the deceased -because those were all the bullets
he had. There was an exchange of fire between deceased, on the one
hand and Thabang and accused 1 who returning the fire.
several shots. They left the deceased there.
and Thabang found the other accused at the chiefs place when they
left Mamohlapele's home. Accused 1 and Thabang had left
accused at he chiefs place where they came back. Accused 1 told the
court that he would not know if the other accused
investigate. Accused 1 told the court that they did not report to the
chief but went to report to the police instead. Accused
I said he
went to report to the police with accused 2 but Thabang did not go
with them. Accused 1 told the court that he took his
fire arm with
him. The police charged him with unlawful possession of a firearm.
After that accused 2 went back home.
Accused 1 told the court he is 30 years old and cannot read and
write. There was bad blood between him and the deceased
but there was
no cause for it. Deceased kept his cattle at the cattle post while
accused 1 kept his cattle in the village. There
was moon light, that
is why he saw deceased during the night of the 15th December 2002. He
could not find the fired cartridges
when he tried to look for them
near his home.. Accused 1 told the court that he only told his
brother and no one else. He had waited
three minutes after seeing who
was pulling the cow, before he went out.
Pw3 the chief did not say accused 1 and 2 went to his house that
might - the fact is they did. Accused 1 ran to his parents
although the chiefs place was nearby. All the crown witnesses knew
him. Deceased was four paces from him when he fired at
fired two times -they pulled out their firearms and fired back at
deceased. Accused 1 told the court that he does
not know if deceased
was hit at that stage. Pwl, Pw3 and Pw4 are not telling the truth
when they said all accused l's brothers
followed the deceased. Oriele
only came to Mamohlapele's when he and Thabang were leaving the
premises of Mamohlapele Pw5.
further questions Accused 1 said they had looked for deceased for two
minutes at Mamohlapele's when the deceased fired
at them as they were
leaving. Deceased fired two times, although they had not seen the
deceased. Asked what happened to the pistol
with which deceased was
firing at them, accused 1 said he does not know. The unroofed house
of Mamohlapele was 1.8 metres high.
Accused 1 said he only stopped
firing at deceased when his ammunition was exhausted. Accused 1 told
the court that they left deceased
standing when they left. They had
not fired at deceased at that stage even though the deceased still
had a firearm in his hand.
Accused 1 learned of deceased's death at
the police station. Dealing with questions accused I told the court
that his brothers
did nothing even when accused 1 and Thabang were
fired at. When he and Thabang got back to them at the chiefs place
were still doing nothing. Accused 1 told the court he
did see Mamohlapele Pw5 that day. He did not speak to her because he
fighting. He only saw Pw5 when they left her premises. Pw5 was
not correct when he said, he and other accused entered her yard.
Accused 1 told the court that he shot at deceased because the
deceased was shooting at him.
previous night of 15th December 2002 deceased was firing randomly,
accused 1 did nothing out of fear although he carries his
all the time. Accused 1 did not go out of his house out of fear.
Accused 1 told the court he did not know he had killed
although he had been firing at the deceased. Accused 1 admitted that
he had earlier chased the deceased although deceased
second defence witness was accused 2. He told the court that he and
the other accused including Thabang and Oriele are sons
Nketu. Accused 2 told the court that during the night of 15 December
2002 accused 1 came and told him that deceased
had invaded his place.
Deceased had also unfastened a cow and fired around his place and
knocked at his door. Accused 2 in turn
also told him that deceased
had invaded his home, taken a cow and woken people by firing
randomly. The home of accused 1 was about
800 metres from the home of
accused 2. Accused 1 told the court that no one saw deceased except
him at his home. He learned this
when he asked. The report was made
by accused 1 between 11 and 12 pm. The other brothers who reside at
accused 2's parental home
were asleep at the time - these were
accused 3, accused 4, Oriele and Thabang.
morning accused 2 said he went to Chief Josias Mopeli. They went via
the home of Tseliso his uncle. Tseliso brought the cow
with a damaged
eye and several wounds. Accused 2 said his uncle Tseliso, accused 1,
accused 3 Oriele, accused 4 and Thabang went
from their village with
chief Josias Mopeli Pw3 to the senior chief together although they
were not in one group.
got to the senior chief Pw3 Josias Mopeli reported the grievance to
the senior chiefs court. Accused 2 told them that
he saw deceased who
had invaded his premises drive away his cow with two other people. He
asked chief to call the deceased so that
the deceased can take the
injured cow and give him a wholesome uninjured cow. The chiefs court
said this was a criminal offence
for the police - consequently they
were going to write to the police to deal with the matter.
letter was written and given to him (accused 2). He handed the letter
to accused 1 to deliver it. After accused 1 had left,
Thabang going to the police, accused 2 said he saw the deceased,
although he did not see accused 1 and Thabang meet
2 then left the chiefs
While he was at the chiefs place he had heard gun reports but did
told the court that he did nothing because accused 1, Thabang and
deceased were ought of sight. Accused 2 conceded that
reports at that time of the morning was an unusual thing.
Accused 2 told the court that he saw accused 1 and Thabang chasing
the deceased. Accused 2 said he did nothing and others
They were all surprised. Accused 2 told the court that he was
particularly surprised because he had chosen the procedure
things through the chief. Later Oriele went towards accused 1 and
Thabang out of the sight of accused 2 - and probably
got to them.
Oriele was running.
guns fired the first time no one went. Oriele went running when guns
were now firing at Mamohlapele's home. Accused 2 told
the court he
had no firearm that day.
and accused 4 did not go to the home of Mamohlapele Pw5. Accused 4
had gone to take animals to the pastures. Later accused
2 got a
from accused 1 about what had happened at the home of Pw5
Mamohlapele. Accused 2 accompanied accused 1 when he went to the
accused 2 told the court that he was arrested by the police at the
border when he was going to work at Vaal Reefs
in the Republic of
South Africa. Deceased had come to his home on the 15 th December
2002 at night. Accused 2 had been woken by
gun reports and the loud
steps made by the cow outside.
and accused 2 were riding horses when they got to the chiefs place.
Although several witnesses say accused 2 and his brothers
deceased, accused 2 insisted they remained at the chiefs place.
Accused 2 told the court that he did not see Pw5 Mamohlapele
chiefs place nor did he hear her scream. Accused 2 told the court he
learned of the deceased's death at the police station.
passed near the chiefs court. Accused 2 said he wants the court to
believe that when he heard the gun reports in the
direction of where
his brothers were - he did nothing. Accused 2 did not care what was
happening because he did not expect anything
to happen to his
re-examination Accused 2 said he did not know the fight was about the
cow. He also did not know the gun reports were in respect
of the cow
of accused 2. Accused 2 never came close to the deceased.
Nketu accused 3 was the third defence witness. He told the court he
was 29 years and was married. On the 15th December 2002
he was asleep
- but his sleep was interrupted by gun reports. However, he remained
in bed and did nothing. Accused 2 woke him up
and asked him if he had
heard gun reports outside. This was about ten minutes after they had
stopped. After that accused 2 went
to the chiefs place.
16th December 2002 while he was at home his uncle Tseliso Nketu
brought the cow of accused 2 from Ramahata's. It had wounds
the body and its eye was out. Accused 2, Motapu and Pw3 left him at
home with accused 4. Later accused 1 and accused 4 followed
the chiefs place. They found many people among whom were Pwl, Pw2,
Letuka and others he could not recall. Accused 1, Accused
2, Pw3 and
Tseliso Nketu were there. A letter was written and given to accused
2, who in turn handed it to accused I and Thabang.
After this accused
3 said accused 1 and Thabang got out of view - and they heard gun
reports soon thereafter, they
accused 1 and Thabang chasing deceased. They ran to Mamohlapele's
place. By this time accused 4 had left for their parent's
Accused 3 had remained with others at the chiefs court. Oriele went
to investigate. Accused 3 said he was not armed and did
participate in the killing.
accused 3 said he was literate. They had not all left home at the
same time. Accused 2 and Accused 1 joined them
on the way. They had
heard on the first occasion five to six gun reports. At Mamahlapele's
there were gun reports from various
firearms which worried him. This
made him fear for the lives of his brothers and that of the other
person. He was afraid to go.
When the guns subsided he left with
accused 2. Accused 2 was going to Sefikeng while he was going home.
Accused 2 told the court
that he never checked what happened and
there was nothing surprising in that.
further accused 3 said before this he did not think Pw5 Mamohlapele
hated him - but because she said he was at her
place, he concluded
Pw5 hated him because she had not even said so in her statement the
police. Pw6 also had said in court for
the first time that he had
seen him leave Mamohlapele's yard after the shooting at the place of
Pw5. Pw6 had"
so to the police. Crown counsel read the following passage from the
statement of Pw6.
"After a long time I saw Bakoena Nketu, Thota Nketu, Rethabile
Nketu, Mokete Nketu and Thabang Nketu leaving the yard, still
saying we have finished him."
comment of accused 3 was that Pw6 was not telling the truth. However,
this confirmed that Pw6 had said this to the police.
Nketu accused 4 was the last defence witness. He told the court he is
20 years old now. In 2002 he was 18 years old. He
told the court that
during the night of the 15th December 2002 he heard gun reports.
Later accused 2 came and knocked, and after
accused 3 had opened the
door, accused 2 told him what had happened.
16th December 2002, after accused 1 and accused 2 had gone to the
chief, Tseliso Nketu came driving the cow of accused 2.
injured on the neck and the rest of the body and had lost an eye. Pw3
was present at the time. Accused 2, accused 1, Pw3
and Tseliso Nketu
went to the chief together. Accused 4 told the court he remained at
home. Latter accused 4 told the court that
he went to the chiefs
court with accused 3.
chiefs court, accused 4 says he found a letter being written. Accused
4 told the court that even before that letter was completed
closed he returned home. From home he went to the veld to look after
animals. He did not have a gun and did not shoot the deceased.
accused 4 said he was arrested the day after the death of the
deceased in the afternoon on Tuesday. He had only gone
to the chiefs
court to listen. He was told the letter that was being written was in
respect of the cow of accused 2 and the firing
by the deceased, about
which accused 2 had spoken. Accused 4 told the court that he never
met the deceased that day. Because the
veld was far consequently
accused 4 did not hear any gun reports. It is not true that they
followed deceased. Crown witnesses were
not telling the truth when
they said he was armed.
Defence closed its case.
then went on an inspection in loco at Ha Senekane. There it found
that the chief court met in the open in a circular stone
five paces in diameter. The height of the wall of the kraal is about
two feet or 6o centimeters. Mamahlapele's residence
is 70 paces from
There is a road that passes in the precincts of the chiefs court
about 14 paces from the kraal of the chiefs court. When
standing in this road he can see where deceased was supposed to be
when the fight began. This is 91 paces from the point
of the road
opposite the chiefs kraal. If a person is standing about 3 paces from
the point of the road where the fight started
he cannot be seen
because of the aloes. Deceased is supposed to have run 80 paces from
that part of the road, where the fight started
There are the houses of Ramotubeli Moshoeshoe about 22 paces from
Mamohlapele's home. They do not significantly
interfere with a
person's at the chiefs court from observing a person running from
where the fight started the home of Pw5 Mamohlapele.
The place is
can see from the chiefs court what is happening inside Mamohlapele's
compound of 6 houses. Deceased's body was found in a
house 4 metres by 3 1/2 metres, at a corner. It was agreed that the
house was then unroofed or partially roofed.
and both counsel observed that nothing could stop any of the men at
the chiefs court from going to the road to observe
what was going on
further up the road when the fight started or gun reports were heard.
heard the evidence I have the following preliminary observation to
is nothing on record about the character of deceased or about the
type of person deceased was. The only description about
is in the Report of the Post-Mortem Examination Exhibit "B".
In it deceased is described as a "huge,
well nourished young
statements taken by the police were not sworn statements. Some of
them were undated.
Putsoane put to Pw6 that he had told the police that he saw all
accused leaving Pw5 yard - when Pw6 had in fact said so.
death of inspector Jane the chief investigator had lead to some
exhibits not being handed in.
were absurdities in the evidence of Crown witnesses. In my view there
is no way that Pw4 could see what was happening in Mamohlapele's
wall. That is out of view he could not have seen the accused shooting
as he claims he did. Pw6 also could not have seen the accused
shooting immediately when they got to the home of Pw5. The reason
being that according to Pw5 and accused 1, they had to look for
deceased. In was only after finding the deceased that firing
commenced. That being the case their evidence has to be treated
great caution. Indeed the court has to treat the evidence of all eye
witnesses - because the court is of the view i
evaluating) the evidence, not all the attackers of the deceased could
have carried firearms.
2, 3 and 4 tried to shift the responsibility for the death of
deceased on to Accused 1 and Thabang contrary to what witnesses
Accused 2 even went to the police and reported that accused 1
admitted being in an exchange of fire with the deceased. Even
accused 1 handed a fire arm, other evidence led to the arrest of
other accused 1. The attempt of accused 1 and accused 2
responsibility for the death of the deceased away from the shoulders
of their other brothers failed. A proper reading
and analysis of the
evidence shows that the accused lied. The court saw and heard the
evidence of the accused and did not believe
clear however, is that they were labouring under a smouldering
resentment because of what they believed or knew the deceased
done to the cow of accused
It is not
possible for a relative to be as indifferent as they claimed they
were then gun reports were heard. They claimed they
were not curious
to know what was happening when accused 1 and Thabang who chased
gun reports. It became strange that even after the death of the
deceased they should all go away and not try to help unravel
village tragedy. Pwl told the court that all the accused went to the
chiefs court after the shooting - where Oriele boastfully
had killed that dog meaning the deceased. I believe that Pwl is
telling the truth.
satisfied that Pwl saw the four accused, Thabang Nketu and Oriel
Nketu go to the deceased who was walking up the road. Pwl
the truth that they went to deceased carrying firearms, even if it
might not be all of them as Pwl told the court. I
also believe Pwl
when he says Tseliso Nketu refused to do anything when Pwl asked him
(as their uncle) to stop the accused. I also
believe Pwl when he say
he and others called the accused not to approach deceased in that
manner - but they persisted and went
to the deceased. Pwl told the
court that he had seen accused 2 and Oriele mount their horses and
followed Thabang accused 1, accused
3 and accused 4.
corroborates Pwl that accused 1, accused 3, accused 4, Oriele who was
on horse-back followed the deceased. Pw2 says after hearing
reports accused 2 who was on horse-back, accused 3 and accused 4
chased the deceased who was running away. Oriele who was
the chase. Pw4 Thabo Rakotsoane confirms what Pw2 said to the effect
that accused 1, accused 3, accused 4 and Thabang went
deceased. Pw4 says these people had fire-arms. He also says in
cross-examination, he did see accused 2 and Oriele go
witnesses namely Pwl, Pw3 and Pw4 say the deceased was unarmed. The
allegation of the accused that deceased was armed
and that he fired
at them is false. They could not even say what happened to deceased's
firearm. Pw5 Mamohlapele told the court
that when he showed deceased
where to hide deceased was unarmed.
happened at Mamohlapele's is fraught with confusion - what is clear
is that Pw6 told the court that he saw all the four accused
with Oriele and Thabang leave the yard of Mamohlapele Pw5. One of
them said they had finished the deceased. Pw5 says they
there but the police statement that states only accused 1, Thabang
and Oriele. I am satisfied that it is wrong and badly
Indeed the name of Thabang was repeated twice. It seems to me that
evidence aliunde from several witnesses put all the
accused there and
I believe this evidence.
accused have not been believed when they say the deceased was
carrying a firearm and was the aggressor. Accused 2, accused 3
accused 4 have tried to distance themselves from the shooting by
saying they were not there at that stage. Pwl, Pw2, Pw4, Pw5
all put all the accused at the place that the deceased was shot by
the accused acknowledges the use of two firearms and claims, the
third one was used by the deceased - a fact that the court
problem in this case is that the people who are alleged to have
caused the death of the deceased were alone when they did what
are alleged to have done. It is only they who know exactly what each
of them did. In this part of the world our system has
doctrine of common purpose. Burchell in Volume 1 of South African
Criminal Law and Procedure General Principles of
Criminal Law 3rd
Edition at page 37 says this of this doctrine.
"There is a controversial rule in the South African criminal law
concerning common-purpose cases whereby the conduct of the
perpetrator may, in certain circumstances, be attributed or imputed
to the other participants in the common purpose. By means of
process of imputation all those who actively associate in the common
purpose with the requisite guilty mind will be co-perpetrators."
taken a stage further the principles in terms of which individuals
becomes socii crimnis or accomplices. An individual can
a co-perpetrator by being part of a group perpetrating a crime even
if crown has not proved that he had the specific
role to do what the
actual perpetrator actually did.
case the accused went towards the deceased where firearms were
discharged at deceased. The deceased was chased by the accused
place where they looked for him and found him and then in the
presence of all the accused, the deceased was killed by discharging
several bullets into the body of the deceased. Some might not have
been carrying firearms, but the observers were under the impression
that they were carrying firearms. The first accused says only two
firearms were used by them. Evidence of a ballistic expert says
least three firearms were discharged.
accused on the evidence before me actively assosciated themselves
with the purpose of killing deceased. They all chased
was being shot at. The deceased was not armed, but they lied to the
court and said he was exchanging fire with them
with a non-existent
firearm. They falsely alleged that crown witnesses who had a clear
unobstructed vision of
happening were obstructed by non-existent obstacles. Had the court
not gone on an inspection in loco, it might have been
Snyman in Criminal Law 4th Edition page 262 has said:
"The crucial requirement is that the persons must all have had
the intention to murder and to assist one another in committing
murder. Once that is proved, the act of X, who actually shot and
killed Y, is imputed to Z, who was a party to the common purpose
actively associated himself with its execution, even though a causal
relationship between his (Z's) act and Y's death cannot
proved. X's act is then regarded as also that of Z."
problem is that the law requires that it should be proved beyond
doubt that the accused subjectively had the specific intention
kill. See State v Sigwahla 1967 (4) SA 566 at page 570 where Holmes
JA said dolus directus need not always be proved because
eventualis is enough. Holmes JA said of dolus eventualis'.
"Subjective foresight, like any factual issue, may be proved by
inference. To constitute beyond reasonable doubt the inference
be the only one which can reasonably be drawn."
It is not
enough that the accused made common purpose to attack the deceased.
That could be the actus reus for assault which could
homicide if the negligence in its execution resulted in the death of
the deceased. Evidence has to show that the accused
the subjective intention to kill deceased. Consequently in S v
Mgendezi 1989 (!)
SA 689 at
page 106 A-B Botha JA said a person must not have been a mere
spectator. He must manifest an intention to make common
those who were actually perpetrating the assault - by some act of
assosciation with the others who killed the deceased.
case even if it could be doubted that some of the accused initially
had no intention to kill the deceased when the first
shots were fired
- other subsequent events changed the position. The deceased ran
away. The accused collectively ran after the
deceased knowing that
lethal firearms were being discharged at the deceased. Deceased had
hidden himself at the home of Pw5. According
to accused 1 and Pw5,
the deceased was hunted for some time. Eventually according to Pw5
one of the accused said "here he
is." Several gun reports
were heard. Later more than 13 fired cartridge shells were collected
next to the body of the deceased.
clear that from the aforegoing facts, which the court accepts, the
accused had formed the subjective intention to kill the
Those three or more of the six participants who shot the deceased
were doing it on behalf of those who had no firearms.
This is an
inescapable inference because by the time the deceased was cornered
at the home of Pw5 they had
assosciated themselves with the intention to kill deceased. They all
made sure that deceased died from a hail of bullets.
therefore the finding of the court that all four accused are guilty
says the accused have no previous conviction.
Court: The court accepts that there are extenuating circumstances
because of the accused smouldering resentment they had.
Putsoane addresses the court on mitigation of sentence
Nketu is sentenced to Six years imprisonment.
Nketu is sentenced to Six years imprisonment.
Nketu is sentenced to 5 lashes with a light cane after medical
Crown : Miss Makoko
Accused : Mr Putsoane
omitted to convict accused 1 Tsokolo Thota Nketu unlawful possession
of a firearm. Since I intended that sentence to run
the murder one. I shall let the matter rest. However the unlicensed
firearm with no numbers should be forfeited
to the Crown. It is so
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law