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:

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

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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

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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

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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

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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

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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

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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

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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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