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 22ND 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 isalleged that they assaulted the deceased by hitting him on the headand chest with Mabetlela sticks. The deceased sustained headand chest injuries. His death was due to the head injury which wascaused by a single blow delivered on the deceaseds head byPHAMOLI FOLENE during the assault which was beingperpetrated upon the deceased by the three accused persons.
The three accused persons are all the members of one familyi.e. ( FOLENE FAMILY). They are HABOFANOE, RAMAEMAAND PHAMOLI.
2. FACTS OF THE CASE:
All the accused persons and all the crown witnesses in thiscase are members of the same community. They all lived togetherin the same village. They have known each other for a very longtime. One morning around October or November of 1994RAMAEMAs house was discovered completely burnt out overnight. It was not known when during the night and how that house
caught fire. About a month later on the morning of the 23rdDecember, 1994 the FOLENE children i.e. [ this is the descsriptiongiven to the three accused and one Tsiu who was in their companyon that day] were seen walking passed the deceaseds home. Theywent to a home of one of their neighbours called MANEO. Onarrival at MANEOs they asked her who had burnt RAMAEMAshouse. According to the accused MANEOs reply to that questionwas that they could not ask her such a question in the absence ofher husband or that she could not answer such a question in theabsence of her husband or words to that effect. PW1 SEBAPOLOSEBAPOLO and his brother MAFAFA SEBAPOLO who are theimmediate neighbours of MANEO were sent for by her to comeand listen together with her what these FOLENEs children [ 3accused and Tsiu ] were saying to her. In the presence of the twoSEBAPOLO brothers the FOLENES spoke of burning MANEOshome. The SEBAPOLO brothers discouraged them from takingsuch an action. They verbally restrained FOLENES from burningMANEOs house. During that discussion the parties were allseated down inside MANEOs house. It appeared as if theFOLENES have been successfully restrained from burningMANEOs house. They were all seated down and discussing thematter amicably.
Without further ado or giving notice to anyone Tsiu left the party still seated in MANEOs house. He had been gone for awhile-to the extend that the rest of the party concluded that he hasgone home since the question of their desire to burn MANEOshouse seemed to have been amicably resolved.
While the FOLENES and SEBAPOLOS were seated withMANEO in her house there was an alarm to the effect thatsomeone is trying to set alight MANEOs house. They all rushedout of that house. The FOLENES immediately after making theirexist of MANEOs house, left for one of their own homes, that ofMe MAGEORGE FOLENE. The SEBAPOLOS got engagedimmediately in verbal and physical restraining of TSIU FOLENEfrom setting alight MANEOs house. Despite the effort made bySEBAPOLOS to restraining TSIU they were not succeeding, TSIUstill managed to continue sprinkling paraffin onto MANEOshouse. He proceeded to struck several matches to set the house onfire. The strong prevailing winds put out the match every timeTSIU struck it. Eventually TSIU ran out of the matches. At thisjuncture TSIU was successfully removed from the scene by one ofhis family members one RAMONATE FOLENE.
Some of the fellow villagers who heard the alarm were still
coming to MANEOs place. The three accused were at this timestanding outside Me MAGEORGEs house. The deceasedopened and came out of his gate. He joined PW7-LEPHEANERAKHOBOSO on the way to MANEO. PW7 LEPHEANERAKHOBOSO and the deceased proceeded to MANEOs. Thedeceaseds wife MANTSENYEHO RATEKANE followedimmediately after them.
In full view of all the crown witnesses who testified beforethis court the three accused persons holding their mabetlelasticks in their hands, high in the air came running towards thedeceased and PW7 once the deceased came out and closed his gate.When the accused approached the deceased and LEPHEANERAKHOBOSO, they gave way by stepping outside the path allowing the accused to pass. But to the surprise and shock of thewitness, the three accused also came out of the way and followedthe two gentlemen. Upon observing that the accused are in factcoming to them the deceased and LEPHEANE RAKHOBOSObegan to run away. They split. LEPHEANE RAKHOBOSO ranto the back of MAFAFA SEBAPOLOs house while the deceasedran to the front. The three accused pursuit and caught up with thedeceased. They attacked him using those sticks which they wereholding high in their hands as they ran. RAMAEMA delivered
two blows which the deceased successfully warded off with hiswalking stick. The three accused, as they attacked, were trying toencircle the deceased who kept retreating as he warded off theblows. PHAMOLI delivered one blow which landed on the headof the deceased. The deceased staggered as the result.RAMAEMA and HABOFANOE belaboured him as he fell. Theycontinued belabouring him on his chest after he had fallen on hisback on the ground. The villagers who were intervening to stopthe assault upon the deceased were all unarmed. They keptrunning away for their safety when an assault upon their ownpersons 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 himselfbetween 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 aroof. RAMONATE FOLENE arrived at the scene. He verballyrestrained the accused. He persuaded them to go away. He left thescene 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 toSEBAPOLOs house where his wound on the head was cleanedand his hair removed around it. He was then escorted to the chiefsplace where referral letter was issued to place him before theMORIJA POLICE STATION which referred him to MORIJAHOSPITAL where he died on arrival.
3. MURDER:
Murder is the unlawful and intentional causing of the deathof 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 bythe deceaseds wife, were at the time going to MANEOs house, inresponse to the alarm raised that someone was trying to set italight. The accused person attacked and assaulted the deceasedwithout any excuse. Belatedly RAMAEMA claimed he attackedand assaulted the deceased because he was provoked. He told thiscourt that the deceased once herded his animals in RAMAEMAsgarden. As a result those animals destroyed his crops.
Later-on in his evidence RAMAEMA told the court that heforgave the deceased and forgot about the incident. On the date ofmurder 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 whenthe deceased with his animals destroyed RAMAEMAs crops. Thewhole story was unbelievable. Then RAMAEMA and othersseemed to suspect that the deceased torched RAMAEMAs house.That is why they assaulted him. There was no provocation. Thehouse had been burnt long ago. The accused were now taking thelaw into their own hands when they attacked the deceased. If theywere provoked, the accused should have acted at the time thehouse was torched not weeks after. HOMICIDE AMENDMENTPROCLAMATION 1959. That they were called rags is also nottrue. They were seen running to the deceased who was somedistance from them. Nobody had heard any insult from thedeceased to the accused. Therefore the accuseds action ofassaulting the deceased was unjustified.
4. MEDICAL EVIDENCE ON INJURIES AND CAUSE OF
DEATH:
A. INJURIES
The deceased had sustained laceration on the scalp and aswollen head according to the Medical Officers report. There washeavy bleeding from the mouth and nostrils. The Doctor observedthat the patients pupils were widely dilated and not reacting tolight. There was a swelling on the right of his chest wall posterity.His right ribs were fractured. The doctor formed the opinion thatthese injuries were caused with the blunt instruments. It is thedoctors further findings that the degree of force applied to causethese injuries was severe. The danger to life of the said injurieswas equally severe. The degree of immediate disability was alsosevere. The degree of long term disability was total. In otherwords the doctor meant that the patients useful life had come to anend. This medical report was issued out on the 23rd December,1994. It is indicated on the said report that the deceased died at1:35pm that same day.
B. CAUSE OF DEATH:
The post-mortem examination report was issued by theRegistrar on the 28th December, 1994 at Queen Elizabeth IIHospital MASERU. The cause of death was found to be due to
the head injury, sub/epidural haemotoma. There was an openwound on the head. The frontal part of the scalp was cut open.
5. CONSISTANCY OF EYE WITNESSESS ACCOUNTWITH THE MEDICAL EVIDENCE.
Six crown witnesses who were present at the scene of thecrime during the assault upon the deceased by the accused actuallysaw PHAMOLI hit the deceased on the head with the stick. Thedeceased staggered and finally fell. RAMAEMA andHABOFANOE belaboured him on the chest. The evidence pointswithout a doubt that the injury on the scalp was caused byPHAMOLI when he hit the deceased on the head with a stick causing an open and bleeding wound. The doctors examinationrevealed a cut of the frontal part of the scalp. When the deceasedfell prostrate on the round, the two accused RAMAEMA ANDHABOFANOE continued belabouring him on the chest. The sixeyewitnesses observed this phenomenon. The deceasedcomplained of the pain in the chest. The doctors examinationrevealed fractured right ribs.
6. COMMON PURPOSE:
There appears to be an agreement amongst the accusedpersons that together they were going to some place. The accused were first seen by PW3 that morning of the 23rd December, 1994walking passed her residence. She recognized and knew them tobe RAMAEMA, HABOFANOE and PHAMOLI. The threeaccused and TSIU were found in MANEOs house by SEBAPOLObrothers:- They were still together when threatening to set alightMANEOs house. They left MANEOs house and together wentand stood outside ME MAGEORGEs house. When thedeceased emerged from his home the three accused ran togetherfrom Me MAGEORGEs house towards him. They togetherattacked and assaulted him by hitting him with their sticks. Byperforming the act of assaulting the deceased together, the threeaccused manifested their shared common purpose to injureseriously or kill the deceased. R v MGEDEZI 1989 (1) SA 687(A) 705I 706C. evidence of the eye-witnesses shows this courtclearly that the three accused were acting together in order toachieve one objective. As they attacked and assaulted thedeceased, they tried to encircle him as each and everyone delivereda blow or blows on the person of the deceased. The post-mortemexamination report pin points the cause of deceaseds death ashead injury. The evidence of eye witnesses without a doubtidentities 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 thedeceased. RAMAEMA and HABOFANOE actively associatedthemselves with the killing of the deceased by participating in thatassault together with PHAMOLI.
Each of the accused was not only aware of each othersweapon. They must have actually seen each one of them using hisstick. The accused held their sticks in their hands which wereraised high into the air for all to see. Any harmful or dangerous actperformed by anyone of them in full view of the others isattributable to all the three of them. PHAMONG MOHALE andKHOTSO MOHALE CRI/T/12/2003 [unreported]. All the threewere not merely present at the scene but they were all activeparticipants.
7. DEFENCE OF ALIBI:
PHAMOLI claims that he was not present at the scene of thecrime. He did not take part in the alleged assault of the deceasedbecause he was not even present in Lesotho on the date of theassault. He was in the Republic of South Africa, working in themines. All these eye-witnesses who testified that they observed
him taking part in the assault of the deceased are falsely andperhaps maliciously implicating him. He told this court that heknows them very well. He has known them since his youth whenhe began to make note of things he saw and feel. He also told thecourt that those crown witnesses know him very well. Thereforethere can be no question of a mistaken identity. That is why I feltperhaps he feels that they are malicious and falsely incriminatinghim with such a serious offence. He could not think of any reasonwhy all the seven fellow villagers who know him so very wellwould falsely implicate him in this serious crime. According to the evidence tendered before this court, there is only one answer in theaffirmative, to the question whether or not PHAMOLI was presentat the scene of the crime and performing the actions witnesses bythose present at the scene of the crime at the time.
8. ONUS:
The accused person has nothing to prove before court. Theheavy onus rests upon the crown throughout the trial to provebeyond reasonable doubt the accuseds quilt. When an accusedperson raises a defence of alibi, he must establish it on the balanceof probabilities. It is not enough mere to claim absence from thescene in the face of the overwhelming evidence to the contrary,
without making an attempt to produce evidence to support thealleged absence. For example in our present case the accused who claims he was out of the country can bring his travel document toshow the court that he was out of the country. The traveldocument will clearly show when he made his exists and entriesinto the country. It should have been his paramount considerationto retain that passport more especially that he knew that the policehave been looking for him because the people blame him for thedeath of the deceased. It is suspicious that he decided to look forthe lawyer to instruct for his defence and advice the lawyer to callhim to come to attend the trial when it starts.
This kind of defence Alibi, should not be raised at the lastminute-denying the investigators an opportunity to check thetruthfulness of the alleged absence from the scene of the crimeespecially when there is evidence of the eye - witnesses who sawand identified the culprit honestly and correctly. The accusedlearnt that the police were looking for him and they found andarrested his co-accused. The accused did not go to report to thepolice to enquire why they arrested his relatives and why they alsowanted him. Instead the accused went to look for an attorney toinstruct for his defence because he heard that the people blame himfor the death of the deceased. He requested the said attorney to
inform him to come to attend the trial once the trial is due tocommence. According to his attorney it become clear that thisaccused expected to be charged with the crime of murder of thisdeceased. It should have been part of the preparation for the trialto go to the police and advise them of his alibi. The fact that thepolice failed to arrest him does not prove his alibi. The fact that hebrought himself to court to stand trial does not prove his alibi.
The police who were looking for the accused and whoarrested his co-accused, were their local police officers fromMORIJA POLICE STATION. The accused says he had no time togo to the local police station to report. But he had all the time tocome to MASERU which is far from his home. He together withhis brother looked for the residence of the attorney his presentattorney of record MR.MONYAKO. he instructedMR.MONYAKO to apply for bail for his co-accused and requestedhim to inform him to come and stand trial when it commences.Had the accused gone to police to inform them at the time theywere looking for him in December 1994 while he was still inpossession of his passport or thereafter but prior to trial date, policecould have had an opportunity to check his alibi. Police couldhave checked his alibi before the accused lost or disposed of hispassport. 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 thepolice who had been looking for him. Before court the accusedclaims he has no passport to prove that he was out of the country.Despite his knowledge that the police have arrested his co-accusedin connection with this murder and that they are looking for himfor the purpose of arresting him, he fails to report to them. Hedisposed with his passport that could clearly assist in thedetermination of his whereabouts at the time.
In the face of such overwhelming incriminating evidence, thecourt is not entitled to accept unsupported and bare allegation ofabsence from the scene of the crime. The crown has establishedthe accuseds 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 passjudgment against him. The two remain accused are found guilty ofmurder with a direct intent to kill. They assaulted the deceasedwith those dangerous weapons Mabetlela sticks. They directedtheir attack and assault to his head and chest. They are vulnerableparts of the body which in turn contain and protect the vital organssuch 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 deceaseds headshows that the accused intended to injure the deceased grievouslyor to kill him. The type of weapons used by the accused toperpetrate the assault on the deceased, also show that the accusedmeant to injure the deceased seriously or kill him. That is why Ihave no alternative but to find them guilty of murder with a directintend to kill.
My two brother assessors agree with the fact finding in thiscase.
10. EXTINUATION:
The accused persons were seen by the eye-witnesses
attacking and assaulting the deceased who died shortly after theattack. There was no apparent reason for their attack. It appearedto have been an unprovoked and unsolicited attack. Their apparentblameworthiness in those circumstances is full and pure. Every person who witnessed the assault was prompted by the surprise andshock to intervene. Everyone was asking the accused why theywere doing what they were seen doing. They were asked what wasthe matter. The response was an indication by RAMAEMA whopointed at his house inviting the enquiring minds to have a lookat it. At that time the inquiring person PW6 one LENGOLASHEA looked and noticed that it was just a wall without a roof. Asshown in the evidence during the trial, that house was discoveredcompletely burnt out one morning in October or November 1994.The owner RAMAEMA suspected that it was set alight by thedeceased. He claimed that the deceased issued the threat that hewill burn him in that house when he RAMAEMA rebuked thedeceased for destroying his crops with his animals. An extenuatingcircumstance is any factor whose effect reduces theblameworthiness of the accused. The three accused may have setupon the deceased believing that they are entitled to punish him forthe alleged wrong against one of them i.e. RAMAEMA. Even ifthat was true and correct the accused were wrong to take the lawinto 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 theirsuspicion or believe no matter how wrong, has the effect ofreducing their blameworthiness. The existence of the extenuatingcircumstances removes from your necks the rope that was placed by the law of this Kingdom, for the crime that you have committedCriminal Procedure and Evidence Act 1981 (1) (a) provides that asentence by hanging shall be passed by the High Court, upon theaccused convicted before it of murder. This court is therefore notentitled to pass the mandatory death penalty where it has made afinding that there are extenuating circumstances. It is authorized touse its discretionary powers to pass an appropriate sentencedepending on the circumstances of your case.
11. SENTENCE:
This court has taken into account the manner in which youacted when committing this offence. It was broad daylight whenyou ran with your Mabetlela sticks held in your hands whichwere raised high into the air for every one to see that you arelaunching an attack. Nobody knew who was your target orintended victim and why. Even the deceased you took him bysurprise as he stepped out of the way, letting you pass not
knowing that he was in fact your target. When he started to run forhis safety it was too late. You were already upon him. Threeyoung man against an old man of seventy (70) years of age. Thatact on the face of it clearly demonstrates that you are cowards.That act was not only cowardly but it was barbaric. These areaggravating circumstances in your case, more especially that youbehaved in that fashion is the presence of many of your fellowvillagers who had come out of their homes when that alarm of theburning of Me MANEOs house was raised. Behaving as youdid as an uncontrollable and unruly gang which could not berestrained physically and/or verbally when engaged in your murderous attack upon the deceased, you must have put fears in theeyes of the observers of your action. You are the FONLENES.The village is called HA FOLENE. You are the chiefs and assuch you should therefore take care of the peace, tranquility anddignity of the village. But instead you acted as peace breakers, lawbreakers and murders in broad day light infront of all those presentto witness. Are you the village bullies or the caretakers? Askyourselves that question. If the answer is not satisfactory you arenow given an opportunity to reconsider your status and make anappropriate adjustment in your behavior in particular on how youresolve the disputes that occur or are suspected to have occurred inyour 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 takeninto account your particular and personal circumstances that havebeen drawn to this courts attention by your attorney. Indeed, youhave been convicted of a very serious crime murder with a directintent to kill. Bad as it is you are still human beings and as such,you are expected to make amends. The anxiety over the possibleconclusion must have weight on your minds. In Sesotho Traditionand culture you are expected to raise the head of the deceased, youshould be given an opportunity to do so. If you do not do sovoluntarily, the dependants of the deceased are entitled in law tosue you for compensation.
As first offenders you deserve some consideration that youmay be fallen Engels, therefore you should be treated with somesort 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