CRI/T/217/2001

IN
THE HIGH COURT OF LESOTHO

In
the Matter of:-

REX

V

TLELAENE
MOHAJANE

JUDGMENT

Deliveredby
the Honourable Madam Justice N. Majara

on
the 21^st
December 2007

On the 6^th
day of September 2007, the accused appeared before this Court on a
charge of murder. In terms of the indictment, on or about the
20^th
April 1999 and at or near Litsuming in the district of Maseru, he
unlawfully and intentionally killed one Phoka Mohajane. He pleaded

not guilty to the charge. I might also mention at the onset that the
accused was initially charged with another, Teele who failed
to show
up on several dates of hearing, resulting with several postponements
of the case until the Crown moved an application for
a separation of
trials in terms of Section
170 of the Criminal Procedure and Evidence Act 1981.
The Court duly granted the application.

The Crown called
three (3) witnesses to take the stand to prove its case. The first
witness was the deceased’s father, Mafa
Mohajane,
who testified that on the day in question he received information
that his son had been arrested by the accused and Teele Mohajane
on
suspicion that he had stolen a goat belonging to one Lekula
Phatsoane (DW2).

PW1 told the Court
that he went to Lekula’s place together with PW2 Koetje
Mohajane
and some other men to inquire from Lekula as to what actually
happened to the deceased. Soon after they arrived thereat, the
accused and Teele arrived and reported to Lekula that they had
arrested the deceased and tied him up because he had stolen Lekula’s

goat and that they had left him at the cattle-post because he had
refused to walk.

PW1 added that he
asked the accused to take them along to show them where the deceased
was and that they all followed the accused
who led the way. While
they were on the way, the accused and Teele walked faster leaving the
rest of the group behind. However,
PW3 kept the same pace as them
until they disappeared out of sight.

It was his further
testimony that when they later arrived at the place, the accused and
Teele were no longer there and PW3 was waiting
with the dead body of
the deceased all by himself. He added that PW3 reported to them that
after they had unbound the deceased,
the accused had left the scene
saying that they were afraid that they might be injured by the men
coming behind. He further told
the Court that he observed a track of
flattened grass which he believed was where the deceased had been
dragged and that he also
noticed pieces of broken sticks close-by.

PW2 was one
Koetje
Mohajane
and
he basically gave the same testimony as PW1concerning the report that
the accused allegedly gave at DW2’s place, the journey
to the
cattle-post and the fact of the accused and Teele walking faster and
leaving the rest of the team behind, as well as that
of the deceased
being found dead and pieces of broken sticks being seen thereat.

PW3, Ntsane
Liketso told the Court that he did not know the deceased and his
parents but that he was present when PW1, PW2 and other
men arrived
at Lekula’s place and the accused arrived and reported that
they had arrested the deceased as a result of their
suspecting him to
have stolen a goat. He confirmed what PW1and PW2 said happened on
the way to the scene. He went on to state
that when they arrived at
the place where the deceased was, he saw him lying down with his
hands tied with a rope and that the
accused and Teele untied him and
took the rope with them saying that they were afraid of the group
that was coming behind.

The three Crown
witness all testified that the body of the deceased was guarded for
the whole night in the absence of the accused
persons until the
morning when the police arrived.

The post-mortem
report was read into the record to form part of the evidence by
consent with the defence. It reveals that death
was due to rupture
of the trachea and contusion of the left lower lobe and the doctor’s
remarks are that the deceased had
multiple bruises and echymoses all
over the body.

At the close of
the Crown’s case the accused elected to take the witness stand
and testified in his defence. He also called
a witness who also
happens to be his employer, Lekula. The accused’s evidence
was to the effect that at the time of the
incident, he and Teele
Mohajane were at their respective but neighbouring cattle-posts. He
stated that whilst there, they were
attacked by stock-thieves, a
group of about ten (10) people, who were also shooting at the posts.
That he called out to Teele
and the deceased as he was running
towards home/village and the latter joined him on the way home.

He added that upon
arrival at DW2’s place they narrated what had happened with
regard to the alleged attack. Later on, PW1
and the others arrived
and he angrily asked them what they had done with his son and they
told him the same story and stated that
they did not know where the
deceased was. He added that P.W.1 told them to go and show them
where they had left his son and they
led the way to the cattle-post.

According to the
accused, as they were going along, PW1 was threatening them and that
is when they decided to walk faster. It was
his further testimony
that on the way, they were joined by PW3. When they got to the river
they searched for the deceased and
after a while found him lying down
with his hands tied behind his back. They untied him as they thought
he was still alive. Upon
realizing that he was dead, they fled for
their lives in fear of reprisal from the group that was coming
behind.

The accused
further told the Court that they ran away from the village and sought
refuge at the Maseru Police Station where they
reported the matter.
After a few days they were taken to prison, were later released on
bail and went back home. They then learned
that the deceased was
dead.

DW2, Lekula
Phatsoane confirmed the accused’s evidence with regard to the
report about the attack on the cattle-posts by stock-thieves.
He
also testified that upon realizing that P.W.1 was angry after he had
arrived at his place to inquire about his son, he went
to report the
matter to the chief while PW1 and others demanded that they should go
with the accused to look for the deceased.

The witness
further told the Court that he reported his missing stock to the
chief but to date nothing has happened and that unfortunately
that
particular chief has since passed away. He stated further that he
did not go to the cattle post with the others and that
the accused
and Teele returned late in the night and it was on his advice that
they went to report the matter at the Maseru Police
Station. Further
that it was his son who paid their bail deposit.

In short the
defence’s version is that accused and Teele did not arrest and
tie up the deceased nor did they assault him on
suspicion that he had
stolen a goat. Further that, the deceased must have been beaten up
by the stock-thieves who had attacked
the cattle-post. Accused also
denies that they ever reported that they had tied up the deceased for
stealing a goat upon their
arrival at DW2’s place.

I now proceed to
analyse the evidence before this Court.

All the crown
witnesses were cross-examined by the defence Counsel with the
projected defence being that it was a lie that the accused
and Teele
ever confessed to them to having arrested and tying up the deceased
but that instead they had reported that they had
been attacked by
stock thieves at the cattle-post and had fled for their lives.

All the witnesses
however remained unshaken in their evidence regarding the report the
accused and his companion made at DW2’s
place. In his
submissions,
Mr. Tsenoli
made the contention that the Crown witnesses contradicted themselves
on material facts especially concerning what each of them
said in
their evidence with regard to the alleged confession by the accused
and Teele.

I however do not
accept this submission for the reason that the witnesses corroborated
each other on all the material aspects of
the evidence. The only
difference is that only two of them mentioned that accused and Teele
said the deceased had refused to walk
and had thrown himself down.
Other than that, their evidence was congruent in so far as the
alleged report on the arrest and the
tying up of the deceased, as
well as their having been led to the place where he was found dead
goes.

Further, it is my
view that the fact that P.W.1 and P.W.2 did not mention PW3’s
presence at the house of DW2 is not material
since they all testified
that he was with the group that went out to the cattle-post and was
the one who kept up with the accused
and Teele until they got to
where the deceased was.

At any rate, it
stands to reason that in the normal course of things, witnesses can
never give the same testimony word for word
as if their evidence was
rehearsed. Otherwise it is that very fact that might raise some
doubts on the truthfulness of their evidence.

I also find it
apposite to mention that I carefully observed all the witnesses
whilst they were on the stand. In my opinion, all
the three crown
witnesses struck me as trustworthy since their demeanour was by and
large without question. They also stuck to
their evidence from the
beginning to the end without wavering or being evasive even under
cross-examination. It is my view that
they were undoubtedly
credible.

The evidence that
the accused and Teele untied the deceased and fled is also common
cause. It is also my opinion that this particular
fact is actually
proof that the reason that they untied him was that they were the
ones who had tied him up in the first place
hence their taking with
them the rope that had tied him. They really had no business
tampering with the body of a deceased person
who per the version of
the defence was murdered by unknown stock-thieves. Their conduct in
this regard was highly suspect.

With regard to the
version of the defence, it is my opinion that both the accused and
his witness were very poor and unimpressive
witness. I might also
mention that this is so despite the fact that DW2 is a very senior
citizen. He testified that he was born
in 1921 which makes him about
86 years of age.

Starting with the
accused, it is my opinion that his demeanour was very suspect, not to
mention that his evidence was full of material
contradictions. First
of all, he testified in his evidence in chief that he became aware of
the attack when he heard gun reports
and that it was dark and he
could not see his attackers before he called out to the others.
Under cross-examination his evidence
improved to the effect that he
actually saw the alleged attackers and there were about ten (10) of
them.

Further, his
explanation on why they untied the deceased after they had left the
other people behind oscillated a great deal. To
illustrate my point,
in his evidence in chief, he told the Court that they acted in that
manner because they saw that the deceased
was already dead. Under
cross-examination he changed and said the deceased seemed to be still
alive, yet when asked the same question
by one of the assessors he
reverted back to the initial version that they saw that the deceased
was already dead.

Over and above
this, the accused testified that after the incident they ran away
from their home village fearing for their lives
and came to Maseru
where they were placed in protective custody by the police at the
charge office and then eventually were transferred
to the Central
Prison. He also testified under oath that they were never given any
charge as they were merely in protective custody
but were later
released on bail. Needless to mention, this is absurdity at it worst.
I will not even waste time analyzing this
part of the evidence.
Suffice it for me to say that it just goes to show the type of a
witness the accused was before this Court.

With regard to
DW2, it was put to him during cross-examination that in his sworn
statement he had given the same version as that
of the three crown
witnesses, mainly that the accused and Teele had reported that they
had arrested the deceased and tied him up
and had left him because he
refused to walk. While he admitted that he did give a sworn
statement to the police he however denied
all the contents thereof as
well as the signature that appeared at the end.

On this point,
Mr. Tsenoli
made the submission that it was imperative on the Crown to have
called an independent witness to testify on the issue of the
signature.
I however am of the view that despite this not having
been done, the contents of the statement made before the police were
in
fact his. He simply no longer wanted to associate himself with
them for reasons best known to him. I however am of the view that
he
wanted to protect the accused who was at all material times his
herd-boy. Clearly the initial shock that made him give the
said
statements had since worn off with the passage of time.

To illustrate my
point, the manner in which he responded to some of the questions
suggested that he was bent on denying the contents
of his statement
at all costs. For instance he replied as follows to a couple of the
questions that were put to him by Ms
Mofilikoane:-

Q. Did you make
any statement to the police?

A. I did.

Q. I do have your
statement with me now.

A. If
it is not lies.

Surely for anyone
to suggest that what is contained in his own statement might be lies
even before he is referred to the contents
thereof is a clear
indication that he too readily wanted to distance himself from it and
it is my opinion that it is because he
knew that the two versions
were totally contradictory of each other and cast serious doubt on
his credibility.

Indeed, I found
him to be a very incredible witness despite his age. For instance,
he was very evasive when answering damning questions
against the
accused. He was also too eager to confirm the accused’s story
regarding the alleged attack to the extent of
alleging that his
horses were stolen during the raid. Yet what is surprising is that
it was his evidence that all the witnesses
who could some and
corroborate this evidence have died.

While this is
possible regarding the time it took for this case to be prosecuted,
it is the manner in which he too readily suggested
that everyone was
dead who could back him up including on the evidence of the spent
bullets that were allegedly found at the scene
by some nameless
person, that strengthens my view that he was telling palpable
untruths.

Further, the issue
of the bullets only came up for the first time in DW2’s
evidence and I found it very surprising that none
of the people who
arrived at the scene first ever made any mention of seeing them nor
was this fact ever suggested to them while
they were in the witness
box. Even the accused never talked about any spent shells.

Be that as it may,
even if this Court were to believe that they were indeed found the
next day during daylight, it is surprising
that none of the people
who were there was called to testify in this regard nor were they
ever taken to the police. I do not even
want to go into the fact of
why it was allegedly a nameless boy who picked them up from the scene
in the absence of any other person
with the natural result that DW.2
is the only living person who knows and/or ever saw them.

Furthermore, while
he was in the box, I formed the opinion that D.W.2 was a biased
witness and had every reason to want to confirm
the accused’s
version. This is to the extent that he kept changing his version
insofar as the fact that PW3 did go with
the group to the scene is
concerned. It is also worthy to note that he also told the Court
that it was his son who bailed the
accused and Teele out of prison
which is another pointer that he has in interest in the accused being
found innocent at all costs.

I cannot leave
this point without mentioning DW2’s conduct while he was on the
stand. Every time he was faced with a particularly
difficult
question from the Crown Counsel, he would go into some litany on why
the proceedings were conducted in English when everyone
in Court was
a Mosotho. He did this several times despite the fact that when he
initially posed this question, and a couple of
times thereafter, the
Court patiently explained to him how and why court proceedings were
conducted in English. Otherwise, when
the questions were easier, he
was more than happy to answer them with the assistance of the Court
Interpreter.

For all these
reasons I find that the evidence of the defence is not only highly
improbable but is false beyond doubt and I accordingly
reject it.

The Court is
now left with the question of determining whether it was the accused
and Teele who murdered the deceased. In the absence
of any evidence
from eyewitnesses, it has to rely on the evidence before it which is
mostly circumstantial. In the case of Rex
v Blom 1939 AD 188
quoted to this Court, the position that was laid down when dealing
with this type of evidence is that the Court can draw an inference

from it. To that extent the learned Watermeyer J.A. stated as
follows in his judgment at p 202:-

“(1) The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.

(2) The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If they
do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”

Applying the above
test to the facts in
casu,
it is my opinion that both two cardinal rules have been satisfied for
the following reasons; the accused reported in the presence
of the
Crown witnesses and D.W.2 that they had arrested the deceased and
tied him up. When leading the way to the scene, they
increased their
pace so that they arrived there before anyone else but for P.W.3 and
upon arrival thereat, they untied the deceased
and fled the scene.
This conduct on their part was very damning and clearly showed a
guilty conscience.

In addition, the
fact that when found, the deceased was indeed tied up strengthens the
Crown’s evidence that the accused and
his partner had reported
that they had arrested and tied him up. This was certainly no
coincidence at all.

The post mortem
report also showed that death was due to rupture of the trachea and
contusion of the left lower lobe and the doctor’s
remarks are
that he had multiple bruises and echymoses all over the body. These
wounds do not tally with gunshots at all but rather
with whipping or
severe blows with blunt objects such as sticks and there is
unchallenged evidence before this Court that there
were broken pieces
of sticks found at the scene.

Surely if this
Court were to believe that there were ever any stock thieves at the
cattle-post who also stole DW2’s horses
as the defence would
want us to believe, they had no business wasting time beating up one
young man, tying him up and dragging
him for some distance
especially, when he was not even manning the cattle-post where the
alleged theft occurred, instead of making
a quick getaway as logic
dictates.

All these facts
lead this Court to draw one inference to the exclusion of any other
and that is, the accused and Teele indeed arrested
the deceased, tied
him up and belaboured him with the sticks whose broken bits were
found at the scene and the poor boy died from
those injuries. Indeed
the two cases of Rex
v Patekile Tshoba 1999-2001 LLR 931
and Rex
v De Villiers AD 493
respectively quoted to this Court by the defence Counsel are on all
fours with the test laid down in Blom’s
Case (supra).

I need not repeat
the quoted passages in this judgment. Suffice it for me to say in my
opinion they support this, my finding.

For all these
reasons, I find that the Crown has discharged its onus of proving its
case beyond a reasonable doubt and I accordingly
find the accused
guilty as charged.

I also find
presenting some extenuating circumstances and they are as follows:-

Eight years ago
when he committed this crime, accused was still a young man of tender
age. He is also un-alphabetic and lacks the
sophistication that
normally comes with some form of education. All he knows and is
familiar with is life at the cattle-post where
conflicts and
arguments are usually resolved with fights. While admittedly the
weapons used can be lethal, they have on many other
occasions been
used on others without necessarily resulting in fatal consequences as
it happened in this case.

My assessors
agree.

SENTENCE

When considering
sentence, the Court took into account all the mitigating factors that
were pleaded on behalf of the accused by
his defence Counsel to wit,
that the accused immediately went home to report the matter and also
led the witnesses and others to
where the deceased was which was a
sign of contrition on their part.

In addition, this
case has been hanging on his head for about eight (8) years and if he
had been timely prosecuted as justice dictates,
he would probably be
nearing the end of his jail term. Lastly, the accused stood his
trial to its finality and has no previous
criminal record.

On the other hand,
the Court has the duty to discourage and punish offenders as well as
to deter others from committing crime and
as such, needs to strike a
proper balance between the accused’ interests and those of the
deceased, his family, friends and
dependants as well as those of the
community at large and alive to these factors, I proceeded to also
take into account the following:-

That murder is a
capital offence that derogates from the right to life and the
sanctity of human life. There is also a growing
culture of violence
towards others where they are assaulted with impunity without due
regard to the possible and usually fatal
consequences, which culture
should not be encouraged let alone tolerated.

Further, this
Court should be wary not to send out the wrong message to the public
that it is alright to act violently towards and/or
kill others and
that as long as one shows that he is remorseful, he will get off
lightly. While indeed the accused has a wife
and dependants, at
least he will still be able to see them during his time in jail and
after he has completed his sentence when
unfortunately the same
cannot be said with regard to the deceased.

In addition, it is
my view that having family and dependants should not be used as a
reason for us not to be punished because we
all have loved ones but
we have to pay for our misdeeds no matter how painful this might be
to them or how negatively it might
affect them.

Consequently, I
find that the appropriate punishment would be for the accused to be
sent to prison for a period of three (3) years
and I so sentence him.

N.
MAJARA

JUDGE

For the crown : Ms
Mofilikoane

For the
defence : Mr. Tsenoli