IN
THE HIGH COURT OF LESOTHO

CRI/T/153/2000

In the matter between

REX

VS

HABOFANOE FOLENE & TWO
ORS

JUDGMENT

DELIVERED BY THE
HONOURABLE MRS JUSTICE
K.J.GUNI ON THE 22^ND NOVEMBER,
2005.

Charge………………
murder…………..

Definition and essential
elements thereof………common purpose.

Defence of Alibi…………………

The burden of establishing
the same on the balance of

probabilities rests on the
accused.

The court is not entitled to
accept the bare denial of presence at

the scene of the crime
without any proof whatsoever in the face of

overwhelming competent and
credible evidence to the contrary.

1.
CHARGE:

The accused are charged with the
crime of murder. It is
alleged that they assaulted the deceased by
hitting him on the head
and chest with “Mabetlela”
sticks. The deceased sustained head
and chest injuries. His death
was due to the head injury which was
caused by a single blow
delivered on the deceased’s head by
PHAMOLI FOLENE during the
assault which was being
perpetrated upon the deceased by the three
accused persons.

The three accused persons are
all the members of one family
i.e. ( FOLENE FAMILY). They are
HABOFANOE, RAMAEMA
AND PHAMOLI.

2. FACTS OF THE CASE:

All the accused persons and all
the crown witnesses in this
case are members of the same
community. They all lived together
in the same village. They have
known each other for a very long
time. One morning around October
or November of 1994
RAMAEMA’s house was discovered completely
burnt out over
night. It was not known when during the night and
how that house

caught
fire. About a month later on the morning of the 23^rd
December,
1994 the FOLENE children i.e. [ this is the descsription
given to
the three accused and one Tsiu who was in their company
on that
day] were seen walking passed the deceased’s home. They
went to
a home of one of their neighbours called ‘MANEO. On
arrival at
‘MANEO’s they asked her who had burnt RAMAEMA’s
house.
According to the accused ‘MANEO’s reply to that question
was
that they could not ask her such a question in the absence of
her
husband or that she could not answer such a question in the
absence
of her husband or words to that effect. PW1 SEBAPOLO
SEBAPOLO and
his brother MAFAFA SEBAPOLO who are the
immediate neighbours of
‘MANEO were sent for by her to come
and listen together with her
what these FOLENE’s children [ 3
accused and Tsiu ] were saying
to her. In the presence of the two
SEBAPOLO brothers the FOLENES
spoke of burning ‘MANEO’s
home. The SEBAPOLO brothers
discouraged them from taking
such an action. They verbally
restrained FOLENES from burning
MANEO’s house. During that
discussion the parties were all
seated down inside MANEO’s
house. It appeared as if the
FOLENES have been successfully
restrained from burning
‘MANEO’s house. They were all seated
down and discussing the
matter amicably.

Without
further ado or giving notice to anyone Tsiu left the
party still
seated in MANEO’s house. He had been gone for a
while-to the
extend that the rest of the party concluded that he has
gone home
since the question of their desire to burn ‘MANEO’s
house
seemed to have been amicably resolved.

While the FOLENES and SEBAPOLOS
were seated with
‘MANEO in her house there was an alarm to the
effect that
someone is trying to set alight ‘MANEO’s house.
They all rushed
out of that house. The FOLENES immediately after
making their
exist of ‘MANEO’s house, left for one of their
own homes, that of
‘Me’ ‘MAGEORGE FOLENE. The SEBAPOLOS got
engaged
immediately in verbal and physical restraining of TSIU
FOLENE
from setting alight ‘MANEO’s house. Despite the effort
made by
SEBAPOLOS to restraining TSIU they were not succeeding,
TSIU
still managed to continue sprinkling paraffin onto
‘MANEO’s
house. He proceeded to struck several matches to set
the house on
fire. The strong prevailing winds put out the match
every time
TSIU struck it. Eventually TSIU ran out of the matches.
At this
juncture TSIU was successfully removed from the scene by
one of
his family members one RAMONATE FOLENE.

Some of the fellow villagers who
heard the alarm were still

coming
to ‘MANEO’s place. The three accused were at this time
standing
outside ‘Me’ ‘MAGEORGE’s house. The deceased
opened and
came out of his gate. He joined PW7-LEPHEANE
RAKHOBOSO on the way
to ‘MANEO. PW7 LEPHEANE
RAKHOBOSO and the deceased proceeded to
MANEO’s. The
deceased’s wife ‘MANTSENYEHO RATEKANE
followed
immediately after them.

In full view of all the crown
witnesses who testified before
this court the three accused
persons holding their “mabetlela”
sticks in their
hands, high in the air came running towards the
deceased and PW7
once the deceased came out and closed his gate.
When the accused
approached the deceased and LEPHEANE
RAKHOBOSO, they gave way by
stepping outside the path –
allowing the accused to pass. But to
the surprise and shock of the
witness, the three accused also came
out of the way and followed
the two gentlemen. Upon observing that
the accused are in fact
coming to them the deceased and LEPHEANE
RAKHOBOSO
began to run away. They split. LEPHEANE RAKHOBOSO ran
to
the back of MAFAFA SEBAPOLO’s house while the deceased
ran to
the front. The three accused pursuit and caught up with the
deceased.
They attacked him using those sticks which they were
holding high
in their hands as they ran. RAMAEMA delivered

two
blows which the deceased successfully warded off with his
walking
stick. The three accused, as they attacked, were trying to
encircle
the deceased who kept retreating as he warded off the
blows.
PHAMOLI delivered one blow which landed on the head
of the
deceased. The deceased staggered as the result.
RAMAEMA and
HABOFANOE belaboured him as he fell. They
continued belabouring
him on his chest after he had fallen on his
back on the ground.
The villagers who were intervening to stop
the assault upon the
deceased were all unarmed. They kept
running away for their safety
when an assault upon their own
persons was imminent. But they kept
coming back to try to stop
the assault upon the deceased by
pleading with the accused to stop.

As the assault upon the deceased
went on unabated PW5 –
LENGOLA SHEA found and picked up a stick
from the ground.
He raised it and shouted to the accused thus
“what is the matter?
Why are you doing this?” They stopped.
MAFAFA threw himself
between the accused and the deceased –
intending to shield him.
RAMAEMA indicated his house and said
“Look at my house”,
LENGOLA looked and observed that it was
just a wall without a
roof. RAMONATE FOLENE arrived at the scene.
He verbally
restrained the accused. He persuaded them to go away.
He left the
scene with all the accused.

The
villagers were now able to attend to the injured victim of
the
assault. He was helped to rise up. He was then escorted to
SEBAPOLO’s
house where his wound on the head was cleaned
and his hair removed
around it. He was then escorted to the chief’s
place where
referral letter was issued to place him before the
MORIJA POLICE
STATION which referred him to MORIJA
HOSPITAL where he died on
arrival.

3. MURDER:

Murder is the unlawful and
intentional causing of the death
of another human being, REX
V NDHLOVU 1945 A D369 at 373.
The deceased person was well
and going about his daily business.
The deceased and LEPHEANE
RAKHOBOSO followed closed by
the deceased’s wife, were at the
time going to MANEO’s house, in
response to the alarm raised
that someone was trying to set it
alight. The accused person
attacked and assaulted the deceased
without any excuse. Belatedly
RAMAEMA claimed he attacked
and assaulted the deceased because he
was provoked. He told this
court that the deceased once herded his
animals in RAMAEMA’s
garden. As a result those animals destroyed
his crops.

Later-on
in his evidence RAMAEMA told the court that he
forgave the
deceased and forgot about the incident. On the date of
murder the
deceased called RAMAEMA and his relatives rags.
Nobody ever heard
the deceased call them rags. But RAMAEMA
told the court that that
insult brought back the previous hurts when
the deceased with his
animals destroyed RAMAEMA’s crops. The
whole story was
unbelievable. Then RAMAEMA and others
seemed to suspect that the
deceased torched RAMAEMA’s house.
That is why they assaulted
him. There was no provocation. The
house had been burnt long ago.
The accused were now taking the
law into their own hands when they
attacked the deceased. If they
were provoked, the accused should
have acted at the time the
house was torched – not weeks after.
HOMICIDE AMENDMENT
PROCLAMATION 1959. That they were called rags
is also not
true. They were seen running to the deceased who was
some
distance from them. Nobody had heard any insult from
the
deceased to the accused. Therefore the accused’s action
of
assaulting the deceased was unjustified.

4.
MEDICAL EVIDENCE ON INJURIES AND CAUSE OF

DEATH:

A.
INJURIES

The deceased had sustained
laceration on the scalp and a
swollen head according to the
Medical Officer’s report. There was
heavy bleeding from the
mouth and nostrils. The Doctor observed
that the patient’s
pupils were widely dilated and not reacting to
light. There was a
swelling on the right of his chest wall posterity.
His right ribs
were fractured. The doctor formed the opinion that
these
injuries were caused with the blunt instruments. It is the
doctor’s
further findings that the degree of force applied to cause
these
injuries was severe. The danger to life of the said injuries
was
equally severe. The degree of immediate disability was also
severe.
The degree of long term disability was total. In other
words the
doctor meant that the patient’s useful life had come to an
end.
This medical report was issued out on the 23^rd
December,
1994. It is indicated on the said report that the
deceased died at
1:35pm that same day.

B. CAUSE OF DEATH:

The post-mortem examination
report was issued by the
Registrar on the 28^th
December, 1994 at Queen Elizabeth II
Hospital – MASERU. The
cause of death was found to be due to

the
head injury, sub/epidural haemotoma. There was an open
wound on
the head. The frontal part of the scalp was cut open.

5. CONSISTANCY OF EYE
WITNESSES’S ACCOUNT
WITH THE MEDICAL EVIDENCE.

Six crown witnesses who were
present at the scene of the
crime during the assault upon the
deceased by the accused actually
saw PHAMOLI hit the deceased on
the head with the stick. The
deceased staggered and finally fell.
RAMAEMA and
HABOFANOE belaboured him on the chest. The evidence
points
without a doubt that the injury on the scalp was caused
by
PHAMOLI when he hit the deceased on the head with a stick
–
causing an open and bleeding wound. The doctor’s
examination
revealed a cut of the frontal part of the scalp. When
the deceased
fell prostrate on the round, the two accused RAMAEMA
AND
HABOFANOE continued belabouring him on the chest. The
six
eyewitnesses observed this phenomenon. The deceased
complained
of the pain in the chest. The doctor’s examination
revealed
fractured right ribs.

6. COMMON PURPOSE:

There
appears to be an agreement amongst the accused
persons that
together they were going to some place. The accused
were first
seen by PW3 that morning of the 23^rd December,
1994
walking passed her residence. She recognized and knew them
to
be RAMAEMA, HABOFANOE and PHAMOLI. The three
accused and
TSIU were found in MANEO’s house by SEBAPOLO
brothers:- They
were still together when threatening to set alight
MANEO’s
house. They left MANEO’s house and together went
and stood
outside ‘M’E MAGEORGE’s house. When the
deceased emerged
from his home the three accused ran together
from ‘M’e
‘MAGEORGE’s house towards him. They together
attacked and
assaulted him by hitting him with their sticks. By
performing the
act of assaulting the deceased together, the three
accused
manifested their shared common purpose to injure
seriously or kill
the deceased. R v MGEDEZI 1989 (1) SA 687
(A) 705I – 706C.
evidence of the eye-witnesses shows this court
clearly that the
three accused were acting together in order to
achieve one
objective. As they attacked and assaulted the
deceased, they tried
to encircle him as each and everyone delivered
a blow or blows on
the person of the deceased. The post-mortem
examination report pin
points the cause of deceased’s death as
head injury. The
evidence of eye witnesses without a doubt
identities the
particular assailant – PHAMOLI as the one who hit

the
deceased with a stick on the head causing an open wound that

bled. PHAMOLI is therefore the one who actually killed the
deceased.
RAMAEMA and HABOFANOE actively associated
themselves with the
killing of the deceased by participating in that
assault together
with PHAMOLI.

Each of the accused was not only
aware of each other’s
weapon. They must have actually seen each
one of them using his
stick. The accused held their sticks in
their hands which were
raised high into the air for all to see.
Any harmful or dangerous act
performed by anyone of them in full
view of the others is
attributable to all the three of them.
PHAMONG MOHALE and
KHOTSO MOHALE CRI/T/12/2003 [unreported]. All
the three
were not merely present at the scene but they were all
active
participants.

7. DEFENCE OF ALIBI:

PHAMOLI claims that he was not
present at the scene of the
crime. He did not take part in the
alleged assault of the deceased
because he was not even present in
Lesotho on the date of the
assault. He was in the Republic of
South Africa, working in the
mines. All these eye-witnesses who
testified that they observed

him
taking part in the assault of the deceased are falsely and
perhaps
maliciously implicating him. He told this court that he
knows them
very well. He has known them since his youth when
he began to make
note of things he saw and feel. He also told the
court that those
crown witnesses know him very well. Therefore
there can be no
question of a mistaken identity. That is why I felt
perhaps he
feels that they are malicious and falsely incriminating
him with
such a serious offence. He could not think of any reason
why all
the seven fellow villagers who know him so very well
would falsely
implicate him in this serious crime. According to the
evidence
tendered before this court, there is only one answer in
the
affirmative, to the question whether or not PHAMOLI was
present
at the scene of the crime and performing the actions
witnesses by
those present at the scene of the crime at the time.

8. ONUS:

The accused person has nothing
to prove before court. The
heavy onus rests upon the crown
throughout the trial to prove
beyond reasonable doubt the
accused’s quilt. When an accused
person raises a defence of
alibi, he must establish it on the balance
of probabilities. It is
not enough mere to claim absence from the
scene in the face of the
overwhelming evidence to the contrary,

without
making an attempt to produce evidence to support the
alleged
absence. For example in our present case the accused who
claims
he was out of the country can bring his travel document to
show
the court that he was out of the country. The travel
document will
clearly show when he made his exists and entries
into the country.
It should have been his paramount consideration
to retain that
passport more especially that he knew that the police
have been
looking for him because the people blame him for the
death of the
deceased. It is suspicious that he decided to look for
the lawyer
to instruct for his defence and advice the lawyer to call
him to
come to attend the trial when it starts.

This kind of defence – Alibi,
should not be raised at the last
minute-denying the investigators
an opportunity to check the
truthfulness of the alleged absence
from the scene of the crime
especially when there is evidence of
the eye - witnesses who saw
and identified the culprit honestly
and correctly. The accused
learnt that the police were looking for
him and they found and
arrested his co-accused. The accused did
not go to report to the
police to enquire why they arrested his
relatives and why they also
wanted him. Instead the accused went
to look for an attorney to
instruct for his defence because he
heard that the people blame him
for the death of the deceased. He
requested the said attorney to

inform
him to come to attend the trial once the trial is due to
commence.
According to his attorney it become clear that this
accused
expected to be charged with the crime of murder of this
deceased.
It should have been part of the preparation for the trial
to go to
the police and advise them of his alibi. The fact that the
police
failed to arrest him does not prove his alibi. The fact that
he
brought himself to court to stand trial does not prove his
alibi.

The police who were looking for
the accused and who
arrested his co-accused, were their local
police officers from
MORIJA POLICE STATION. The accused says he
had no time to
go to the local police station to report. But he
had all the time to
come to MASERU – which is far from his home.
He together with
his brother looked for the residence of the
attorney – his present
attorney of record – MR.MONYAKO. he
instructed
MR.MONYAKO to apply for bail for his co-accused and
requested
him to inform him to come and stand trial when it
commences.
Had the accused gone to police to inform them at the
time they
were looking for him in December 1994 while he was still
in
possession of his passport or thereafter but prior to trial
date, police
could have had an opportunity to check his alibi.
Police could
have checked his alibi before the accused lost or
disposed of his
passport. Coming to MASERU to look for an attorney
was not a

waste
of time. Having found and instructed an attorney the
accused
together with his attorney or alone should have gone to the
police
who had been looking for him. Before court the accused
claims he
has no passport to prove that he was out of the country.
Despite
his knowledge that the police have arrested his co-accused
in
connection with this murder and that they are looking for him
for
the purpose of arresting him, he fails to report to them. He
disposed
with his passport that could clearly assist in the
determination
of his whereabouts at the time.

In the face of such
overwhelming incriminating evidence, the
court is not entitled to
accept unsupported and bare allegation of
absence from the scene
of the crime. The crown has established
the accused’s guilty
beyond a reasonable doubt.

One of the accused – HABOFANOE
died during the trial.
[May his soul rest in peace]. This court is
not going to pass
judgment against him. The two remain accused are
found guilty of
murder with a direct intent to kill. They
assaulted the deceased
with those dangerous weapons “Mabetlela”
sticks. They directed
their attack and assault to his head
and chest. They are vulnerable
parts of the body which in turn
contain and protect the vital organs
such as the brain in the
skull and the heart in the chest. The

accused
must have and did intent to kill or injure the deceased

seriously.

9. MENS REA

Concentrating or directing an
assault on the deceased’s head
shows that the accused intended
to injure the deceased grievously
or to kill him. The type of
weapons used by the accused to
perpetrate the assault on the
deceased, also show that the accused
meant to injure the deceased
seriously or kill him. That is why I
have no alternative but to
find them guilty of murder with a direct
intend to kill.

My two brother assessors agree
with the fact finding in this
case.

10. EXTINUATION:

The accused persons were seen by
the eye-witnesses

attacking
and assaulting the deceased who died shortly after the
attack.
There was no apparent reason for their attack. It appeared
to have
been an unprovoked and unsolicited attack. Their
apparent
blameworthiness in those circumstances is full and pure.
Every
person who witnessed the assault was prompted by the
surprise and
shock to intervene. Everyone was asking the accused
why they
were doing what they were seen doing. They were asked
what was
the matter. The response was an indication by RAMAEMA –
who
pointed at his house – inviting the enquiring minds to have
a look
at it. At that time the inquiring person PW6 – one
LENGOLA
SHEA looked and noticed that it was just a wall without a
roof. As
shown in the evidence during the trial, that house was
discovered
completely burnt out one morning in October or November
1994.
The owner – RAMAEMA suspected that it was set alight by
the
deceased. He claimed that the deceased issued the threat that
he
will burn him in that house when he – RAMAEMA rebuked
the
deceased for destroying his crops with his animals. An
extenuating
circumstance is any factor whose effect reduces
the
blameworthiness of the accused. The three accused may have
set
upon the deceased believing that they are entitled to punish
him for
the alleged wrong against one of them i.e. RAMAEMA. Even
if
that was true and correct the accused were wrong to take the
law
into their own hands. But on the balance of probabilities it
is

established
that is the position they held. REX V NDLOVU 1970
(1) SA 430 at
433. But as an extenuating circumstance their
suspicion or believe
no matter how wrong, has the effect of
reducing their
blameworthiness. The existence of the extenuating
circumstances
removes from your necks the rope that was placed
by the law of
this Kingdom, for the crime that you have committed
Criminal
Procedure and Evidence Act 1981 (1) (a) provides that a
“sentence
by hanging shall be passed by the High Court, upon the
accused
convicted before it of murder”. This court is therefore
not
entitled to pass the mandatory death penalty where it has made
a
finding that there are extenuating circumstances. It is
authorized to
use its discretionary powers to pass an appropriate
sentence
depending on the circumstances of your case.

11. SENTENCE:

This court has taken into
account the manner in which you
acted when committing this
offence. It was broad daylight when
you ran with your “Mabetlela”
sticks held in your hands which
were raised high into the air
for every one to see that you are
launching an attack. Nobody knew
who was your target or
intended victim and why. Even the deceased
you took him by
surprise as he stepped out of the way, letting you
pass – not

knowing
that he was in fact your target. When he started to run for
his
safety it was too late. You were already upon him. Three
young man
against an old man of seventy (70) years of age. That
act on the
face of it clearly demonstrates that you are cowards.
That act was
not only cowardly but it was barbaric. These are
aggravating
circumstances in your case, more especially that you
behaved in
that fashion is the presence of many of your fellow
villagers who
had come out of their homes when that alarm of the
burning of ‘M’e
MANEO’s house was raised. Behaving as you
did as an
uncontrollable and unruly gang which could not be
restrained
physically and/or verbally when engaged in your
murderous attack
upon the deceased, you must have put fears in the
eyes of the
observers of your action. You are the FONLENES.
The village is
called “HA FOLENE”. You are the chiefs and as
such you should
therefore take care of the peace, tranquility and
dignity of the
village. But instead you acted as peace breakers, law
breakers and
murders in broad day light infront of all those present
to
witness. Are you the village bullies or the caretakers?
Ask
yourselves that question. If the answer is not satisfactory
you are
now given an opportunity to reconsider your status and
make an
appropriate adjustment in your behavior in particular on
how you
resolve the disputes that occur or are suspected to have
occurred in
your village. You are not entitled to jump to
conclusions and

punish
your suspects without first placing them before courts of
law.

When assessing an appropriate
sentence, I have also taken
into account your particular and
personal circumstances that have
been drawn to this court’s
attention by your attorney. Indeed, you
have been convicted of a
very serious crime – murder with a direct
intent to kill. Bad as
it is you are still human beings and as such,
you are expected to
make amends. The anxiety over the possible
conclusion must have
weight on your minds. In Sesotho Tradition
and culture you are
expected to raise the head of the deceased, you
should be given an
opportunity to do so. If you do not do so
voluntarily, the
dependants of the deceased are entitled in law to
sue you for
compensation.

As first offenders you deserve
some consideration that you
may be fallen Engels, therefore you
should be treated with some
sort of leniency.

You are each sentenced to
fifteen (15) years imprisonment.

K.J.GUNI

JUDGE

For the Crown : Mr.
Joala

For
the Defence

Mr. Monyako