CRI/T/153/2000

IN THE
HIGH COURT OF LESOTHO

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.

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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

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caught
fire. About a month later on the morning of the 23rd 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.

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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.

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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

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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

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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 chiefs 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:

   
   

4. 
   

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

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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.

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4.
MEDICAL EVIDENCE ON INJURIES AND CAUSE OF DEATH:

1. 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 23rd December, 1994. It is indicated on the said
report that the deceased
died at 1:35pm that same day.

2. CAUSE
   OF DEATH:

   
   

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The
post-mortem examination report was issued by the Registrar on the
28th 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 ground, 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.

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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 23rd 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) 7051 - 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

11

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

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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

13

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

14

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

15

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

16

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.

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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

18

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

20

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.

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K.J.GUNI

JUDGE

For the
Crown : Mr. Joala

For the
Defence Mr. Monyako

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