C of A
(CRI) No. 8/01
COURT OF APPEAL OF LESOTHO
4 APRIL 2007
Criminal law - Murder - Appellant convicted of murder - Appeal
against conviction only - Evidence alleging conspiracy to kill -
Appellant luring her gardener (Al) to kill her husband - Crown
accomplice evidence - The law relating to such testimony analysed.
a quo correctly concluded that the merits of the accomplice witness
(PW4) and the demerits of the evidence of both Al
and the appellant
were beyond question -
testimony also corroborated by other witnesses and by objective
evidence - Appellant was proved to be a lying witness in material
respects - Common purpose doctrine correctly invoked - Appellant's
guilt established by overwhelming evidence - Appeal dismissed.
30 November 1999 the appellant stood trial jointly with one Ts'epo
Solane (Al) in the High Court on an indictment charging
the murder of the appelant's husband, Edmond Sefatsa Senyane ("the
deceased"). The Crown allged that the murder took place on 29
May 1990 at or near Semphetenyane in the district of Maseru.
23 October 2001 both the appellant and Al were convicted as charged.
Extenuating circumstances having been found in respect
accused, the trial court sentenced them to 15 years imprisonment
should be noted at the outset that Al did not appeal against either
his conviction or sentence. This appeal has been brought
appellant against conviction only.
nutshell, the Crown's case was that in 1967 the appellant, a young
woman of 19 years of age at the time, got married to the
who was then 50
years old - an age gap of 31 years. As age inevitably caught up with
the deceased who was well into his seventies at the time of
alleged murder, the appellant complained that he was no longer able
to satisfy her sexual needs. In addition, she felt that
their children badly. Matters took a turn for the worse when the
appellant turned to a younger man, Emile, for sexual
In due course this affair came to the knowledge of the deceased. For
some time leading up to the deceased's death,
there developed a rift
between him and the appellant.
consequence of the aforegoing, it is alleged that the appellant
hired A1, the couple's gardener, to murder the deceased.
before she had allegedly unsuccessfully tried to solicit the help of
one 'Mathuso Makhetha (PW5) to do this dirty job
who ordinarily resides at Matelile, in Mafeteng district, had
apparently come to Maseru in search of a job. In the process
introduced to the appellant at the latter's residence at Lithoteng
in Maseru. The appellant was herself looking for a
PW5 testified that the appellant then said to her:-
"The kind of work I am offering you will be somehow difficult.
Because I have a man staying with me at my house, and this
my children, we should not allow men to cheat us, as you are a person
coming from far I think you can help me ... you
can help by poisoning
the man I am staying with."
to PW5 the appellant told her that the deceased liked "European"
liquor and that PW5 could help by poisoning
his liquor. The deceased
would not suspect anything since PW5 was staying far away.
was horrified by the appellant's suggestion to kill the deceased.
She says that she "got so frightened my Lord, and told
(appellant) even if I am hungry I cannot take part in the killing
(sic) that man whom I do not even know". She says
appellant tried to persuade her further. She even produced from the
sitting room two bottles, one containing poison
and the other one
liquor. PW5, however, remained unpersuaded and left the appellant's
residence in horror.
was the appellant's alleged persistence to kill the deceased that
she was not undaunted by PW5's rejection of the idea. Henceforth,
the story is perhaps best told by the accomplice witness, Moliehi
(PW4). I should add that the Crown's case rested mainly on the
evidence of this witness.
gave damning evidence against the appellant and Al. She testified
that she was 50 years old. At the material, time in question
lived with Al as lovers. She only went as far as Standard 2 at
school. As a result of her limited education she had no knowledge
calendar months. Sometime in the "second month," but in
winter in 1990 and at about eight o'clock at night, the
arrived at the place where PW4 and Al were residing as live-in
lovers. She requested PW4 and Al to accompany her to
her house as
she came from the residence of one Moipone. This, they did although
PW4 was initially reluctant because she was
route to the appellant's residence, the appellant disclosed to PW4
the conspiracy to kill the deceased. She uttered the following
"Moliehi, do you know that we have agreed with Tsepo (Al) that
this is the day we are going to kill Ntate Senyane?"
confirmed that what the appellant had told PW4 was correct. The
latter in turn was not prepared to participate "in killing
person" but was allegedly threatened to do so by the appellant
in these words:-
"if you are not going to participate you will be the first one
to be killed".
says that she became frightened when, upon arrival at the
appellant's residence, the latter woke up the deceased who had been
sleeping in the kitchen and instructed him to go with Al and PW4 to
side of the Phuthiatsana river. The pretext given was to go and fetch
a sheep which the appellant was going to slaughter for her
the party left for Phuthiatsana river, the appellant proceeded to
her bedroom and came back with an iron rod, Exh "5"
she clandestinely held in such a way that the deceased could not see
it. She secretly handed it to A1 with the words:-
"you should throw him (the deceased) at a deeper place",
apparently in the river.
to PW4 the iron rod in question was the murder weapon Exh "5"in
the party comprising PW4, Al and the deceased proceeded towards
Phuthiatsana river which happened to be in flood as
it was raining.
point close to the river, "where Tsepo (Al) was to perform the
duty", PW4 who was walking about 40 paces behind the other
people heard a chopping sound as if an axe was being used to chop
wood. It came from the direction where the deceased and Al
then heard a voice which she recognized as that of the deceased
exclaim: "Hela banna!!! (Hey men!!!"). This
was followed by
a splashing sound in the water. PW4 shouted to Al and asked him
whether he had killed the deceased. The latter
confirmed "yes I
have killed him". PW4 felt frightened and told Al that she was
running away. She had become sober at
that stage. Al also said he,
too, was running away. The two went back to the appellant's
inside the appellant's house, Al attempted to hand over the iron rod
to the appellant. Significantly
it was red with blood. The appellant, however, declined to accept it
on the ground that her children would see it. She "ordered"
A1 to go with it "so it should not be left at her place".
reported to the appellant that he had accomplished her "mission".
This was obviously in reference to the killing
of the deceased. He
therefore demanded his "reward" from the appellant. The
latter's response was:
"Tsepo I said you should go back to your place the money will
come along with Moliehi" (PW4).
slept at the appellant's house on the night in question at the
instance of the appellant who said that she was afraid to sleep
alone. If PW4's version of the events of that night is accepted, it
would seem that the
appellant's conscience was starting to bother her already.
she left the appellant's place on the following day, PW4 says that
the appellant gave her "the money she had promised
to give to
Tsepo" (Al). It was R40.00 and the appellant specifically
requested her to give it to Al. In PW4's own words,
"It was the money that was to be given to Tsepo (Al) but
actually it was supposed to be M400.00".
not satisfied with this amount because the appellant had promised to
give Al a sum of M400.00 "after he had killed
The reason given by the appellant for paying out only R40.00,
however, was that she was going to employ legal
defend Al if he should be arrested for killing the
She would then use the balance of the money to pay the lawyers.
says that she duly handed over the R40.00 to Al. She gave him the
appellant's explanation that the balance would be used to
to PW4, Al subsequently confessed to her brother, 'Molaoa, that he
had killed the deceased. This, as I observe, was
not challenged in
cross-examination. He also made a similar confession to his own
sister, Thato. Nobody forced him to make these
further testified, and this was not disputed, that Al subsequently
pointed out to the police the iron rod, Exh "5",
used to kill the deceased. It was hidden under the mat inside the
house where Al lived
with PW4. Once again nobody forced Al to make the pointing out in
question. Significantly, PW4 told the trial court that she personally
did not know where the iron rod had been hidden by Al prior to his
pointing it out. She was not challenged in this version which
view should be accepted as correct.
PW4 was unchallenged in her version that both Al and herself pointed
out the murder scene at Phuthiatsana river to
the police. Nobody
forced them to do so.
further gave damning evidence to the effect that the appellant
subsequently brought her father to the place where the witness
stayed with Al to thank the latter for doing a great job by killing
the deceased. This happened at night. No challenge was forthcoming
from any of the accused to deny this damning piece of evidence.
proceeding further, it is convenient at this stage to deal with the
law relating to accomplice evidence. The starting point
is no doubt
section 239 of the Criminal Procedure and Evidence Act 1981. It
"239. Any court may convict any person of any offence alleged
against him in the charge on the single evidence of any accomplice,
provided the offence has, by competent evidence other than the single
and unconfirmed evidence of the accomplice, been proved to
satisfaction of the court to have been actually committed."
approaching PW4's evidence the trial court correctly sought guidance
from the celebrated remarks of Shreiner JA in Rex v Ncanana
SA 399 (A) at 405-406, namely:-
"The cautious Court or jury will often properly acquit in the
absence of other evidence connecting the accused with the crime,
no rule of law or practice requires it to do so. What is required is
that the trier of fact should warn himself, or, if the
trier is a
jury that it should be warned of the special danger of convicting on
the evidence of an accomplice; for an accomplice
is not merely a
witness with a possible motive to tell lies about an innocent accused
but is such a witness peculiarly equipped,
by reason of his inside
knowledge of the crime, to convince the unwary that his lies are the
truth. This special danger is not
met by corroboration of the
accomplice in material respects not implicating the accused, or by
proof aliunde that the crime charged
was committed by someone; so
that satisfaction of the requirements of sec.285 (our sec.239) does
not sufficiently protect the accused
against the risk of false
incrimination by an accomplice . The risk that he may be convicted
wrongly although sec. 285 (our sec.239)
has been satisfied will be
reduced, and in the most satisfactory way, if there is corroboration
implicating the accused. But it
will also be reduced if the accused
shows himself to be a lying witness or if he does not give evidence
to contradict or explain
that of the accomplice. And it will also be
in the absence of these features, if the trier of fact understands
the peculiar danger inherent in accomplice evidence and appreciates
that acceptance of the accomplice and rejection of the accused is, in
such circumstances, only permissible where the merits of
as a witness and the demerits of the later are beyond question."
be seen that the same principle was restated by Holmes JA in S v
Hlapezula and Others 1965 (41 SA 439 (A). See also Bereng
Lerotholi and Others v the King 1959 AC 11 (PC); also reported in
1926-1953 HCTLR 126 (PC); Manamolela and Others v Rex
202; Phasuamane and Others v Rex 1985-1989 LAC 168.
requires to be stated at this juncture that the learned trial Judge
was fully alive to the dangers inherent in the evidence
accomplice. He properly cautioned himself accordingly.
is convenient to digress there to consider the defence version. Both
Al and the appellant gave evidence in their own defence.
denied having had anything to do with the alleged murder of the
deceased. They testified that they did not take part
conspiracy to kill him. While they admitted that the deceased left
with Al and PW4 to go and fetch a sheep, they denied
deceased was killed. Al testified that the deceased told him and PW4
to go back when they reached Phuthiatsana river.
He then saw the
deceased cross the river alone. Both the appellant and Al testified
that the appellant did come back with a sheep
on the following day.
All of this took place in February 1990.
point of departure from the Crown's case, both the appellant and Al
testified that the deceased simply "disappeared"
1990, never to be seen again. However, it is significant that they
made no attempt to explain the circumstances under
disappeared as opposed to PW4's version.
evidence of Lethaka Mokholai (PW2) is crucial. He is the headman of
Lithoteng in Maseru district. The appellant is his subject.
testified that the appellant reported to him that the deceased was
"missing". She did not tell him how long he had
missing for. But more importantly, PW2's evidence is recorded as
"A2 (the appellant) then said to me that I must not talk about
this as her husband had disappeared and she did not want this
information to be disclosed".
cross-examination the following question was put to PW2 on behalf of
"DC: A2 never said to you that you should not disclose her
PW2 : She said so".
her evidence, however, the appellant did not deny PW2's version. It
would thus seem that there is a conflict between the appellant's
evidence and counsel's instructions. The fact of the matter is, I
PW2's version was not challenged. It must therefore be accepted as
correct. This, as the trial court correctly found, demonstrated
guilty conscience on the appellant's part.
fate would have it, there is another material twist to the case.
About two months since the deceased was last seen alive, some
herdboys at the Phuthiatsana river made a gruesome discovery of
"bones which they likened to those of a human being".
investigating officer, NO.4609 D/Sgt Khanyapa (PW7), confirmed in
his evidence that he proceeded to the area in question.
accompanied by Captain Lerotholi, policeman Ramohau and Sgt Lehata
who was then a trooper. On the bank of Phuthiatsana
observed "bones like those of a human being". Below the
bank they noticed "a skull like that of a human
They also discovered clothing consisting of a grey blanket and a
vest or "skipper" in the water, a "Vasco
a blue or grey pair of
trousers, a belt, a black pair of shoes and a jersey. They took away
these items of clothing as well as the bones in question.
clothes and bones were subsequently identified as those of the
deceased. The identifying witnesses in this regard were:-
Motseoa Alina Senyane (PW1), a 65 years old woman who resides at
Lithoteng in Maseru district. She is the deceased's
It is not disputed that she was brought up by the deceased. She
identified him by his teeth and head. She testified
deceased's forehead was "plain and not protruding".
Senyane (PW3). He is aged 64 years and is a former second
Lieutenant. He is related to the appellant in that she is his
maternal uncle's wife. He identified deceased's clothes at Maseru
Central Charge Office. He also identified the skull in question as
that of the deceased.
Senyane (PW6). He is deceased's son. He, too, identified deceased's
clothes. He also identified the bones as those
of the deceased. He
testified that he knew the deceased's skull because he used to shave
him. He identified the skull by its
this overwhelming evidence of identification of the deceased's
remains and clothing, the appellant disputed this. She
the bones and the clothes in question were those of the deceased. In
due course, however, she was confronted with
something which she
simply did not recover from. It is this.
the deceased's remains and clothing had allegedly been discovered as
stated above, the appellant admittedly made an application
High Court under Case NO.CIV/APN/194/90 interdicting
the deceased's next of kin from burying the remains of the deceased.
These included PW6 who, as indicated in paragraph  above,
deceased' s son.
it emerged from paragraph 7 of the appellant's own affidavit in
support of her application that the deceased disappeared
about 28 May 1990" and not in February 1990 as she sought to
convey at the trial. More importantly, she averred
on oath that "his
(deceased's) body was found on or about the 27 July at
crown it all, it is common cause that the remains of the deceased
were released to the appellant by a High Court order. In
circumstances, the appellant cannot now reasonably be heard to deny
that these remains were those of the deceased.
the court a quo made a correct finding, in my view, that "according
to the evidence before me,
the Senyane family, nobody has claimed clothing or human remains
deposited at Phuthiatsana river or its tributary".
that the court a quo's finding that the human remains in question
were those of the deceased is fully justified on the
facts. Such a
conclusion is also consistent with the findings of the medical
practitioner and forensic pathologist, professor A.
examined the skeletal remains in question, namely:-
"4. I came to the conclusion that material examined represented
the skeletal remains of an adult male, is probable age ranging
65 - 75 years. Taking into consideration the ligaments and the
tissues still attached to the bones I am of the opinion that
could have ensured about 2 months before the remains were discovered.
Examination of the skull shows lesions consistant with
application of a penetrating force on four separate areas of the
skull The appearance of these lesions are consistant with
caused by an instrument such as the exhibit
shown to me; I am of the opinion that the application of the force
could have been during life, about the same time, taking in
consideration the appearance of these lesions. I am of the opinion
that the application of one or more or all of these forces could
been the cause of death".
be recalled from paragraph  above, the deceased was into his
seventies at the time of his alleged murder. This reasonably
with the age estimated by Professor Olivier.
is important to note that, after seeing and hearing the witnesses,
the learned trial Judge made very strong credibility findings.
believed PW4's evidence and correctly treated her as an accomplice.
By the same token, he properly applied the cautionary
rule as stated
earlier. In the result, he correctly came to the conclusion that
PW4's merits as a witness and the demerits of
both Al and the
appellant were beyond question. In adopting this approach the
learned Judge is supported by authority. See for
example R v Ncanana
(supra). In contrast, the learned trial Judge
found the appellant to be "a scheming, [duplicitous], false and
unreliable witness." He rejected her evidence. I can
fault with these findings on the facts.
fact that the deceased's body was found at Phuthiatsana river
corroborated PW4's evidence that it was there that the deceased
"killed" and fell in the water. Indeed it is right to say
that, in the light of the Crown's evidence as correctly
the trial court, and viewed at in its totality, the only reasonable
inference to draw is that the "chopping"
sound that PW4
heard as fully set out in paragraph  above was made by Al at the
time he struck the deceased with the iron
rod. Similarly, the
"splashing" sound was made by the deceased when he fell in
the water. See R v Blom 1939 AD 288.
the discovery of the deceased's remains with the "injuries"
observed by Professor Olivier does not only
evidence but it is also proof
that the provisions of section 239 of the Criminal Procedure and
Evidence Act 1981 as fully set out in paragraph  above were
summary, the evidence of PW4 was corroborated in the following
corroborated PW4 on appellant's desire to kill the deceased.
pointed out the murder scene at Phuthiatsana river.
murder scene as pointed out by Al is in the general vicinity of the
place where the clothing and remains of the deceased were
clothing and remains of the deceased were found at the spot which
PW4 pointed out as being the place where the deceased had
skeletal remains discovered at Phuthiatsana river were conclusively
identified as those of the deceased.
injuries on the deceased's skull were consistent with the use of the
murder weapon Exh "5".
murder weapon Exh "5" was pointed out by Al. It had been
hidden underneath the mat in a house which he shared with
Significantly, it is not disputed that PW4 herself did not know
where the weapon had been hidden.
appellant lied in material respects. She lied on how the deceased
disappeared. In this regard she gave conflicting versions,
the morning of an unspecified date in May 1990, she found the
deceased missing from where he had slept in the kitchen.
deceased went away at night on an unspecified date and never came
initially admitted that the clothing and skeletal remains found at
Phuthiatsana river were those of the deceased. However,
as soon as
she realised that she was being charged
with murdering the deceased she denied this fact.
appellant requested PW2 not to disclose the information about the
disappearance of the deceased, thus demonstrating a guilty
the light of these factors it is important to bear in mind the
correct approach in analyzing evidence as laid down by this
Moshephi and Another v Rex1980 - 1984 LAC 57 at 59 F-H, namely:-
"The question for determination is whether, in the light of all
the evidence adduced at the trial, the guilt of the Appellants
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and. evaluation of it. But, in doing so, one
must guard against a tendency to focus too intently
upon the separate
and individual parts of what is, after all, a mosaic of
proof. Doubts about one aspect of the evidence led in a trial may
arise when that aspect is viewed in isolation. Those doubts may
set at rest when it is evaluated again together with all the other
available evidence. That is not to say that a broad and indulgent
approach is appropriate when it is evaluating evidence. Far from it.
There is no substitute for detailed and critical examination
and every component in a body of evidence. But, once that has been
done, it is necessary to step back a pace and consider
the mosaic as
a whole. If that is not done one may fail to see the wood for the
the mosaic as a whole, therefore, the Crown's evidence is
overwhelming that Al killed the deceased for a reward. He
correctly convicted of murder.
remains then to deal with common purpose. As will be seen from what
is stated above, the appellant did not accompany the decease's
on the night the later was killed. She did not physically contribute
the deceased's killing. The Crown's case against her is simply based
on the doctrine of common purpose. The true import of this
lies in the fact that where two or more persons associate together or
agree in a joint unlawful criminal undertaking each
one of them will
be responsible for any criminal act committed by the other(s) in the
furtherance of their common purpose. In such
a situation the acts of
one are the acts of the other(s). See Sechaba Ramaema v Rex C of A
(CRI) NO.8 of 2000 (unreported) and
the cases cited therein.
is equally instructive to bear in mind the seminal remarks of Holmes
JA in S v Madlala 1969 (2) SA 63? (A) at 640, namely,
"It is sometimes difficult to decide, when two accused are tried
jointly on a charge of murder, whether the crime was committed
or the other or both of them, or by neither. Generally, and leaving
aside the position of an accessory after the fact, an
be convicted of murder if the killing was unlawful and there is
he individually killed the deceased, with the required dolus, e.g.
by shooting him; or
he was a party to a common purpose to murder, and one or both of
them did the deed; or
he was a party to common purpose to commit some other crime, and he
foresaw the possibility of one or both of them causing
someone in the execution of the plan, yet he persisted, reckless of
such fatal consequence, and it occurred; see S.
v. Malinga and
Others, 1963 (1) S.A 692 (A.D.) at p.694 F-H and p. 695; or
the accused must fall within (a) or (b) or (c) - it does not matter
which, for in each event he would be guilty of murder".
will be recalled from the evidence of PW4 and PW5 fully set out
above and correctly accepted by the trial court, the appellant
hatched a scheme or conspiracy to kill the deceased. She hired the
services of Al to do the killing and even supplied him with
murder weapon, namely, the iron rod Exh "5". She also
involved PW4 in the scheme. It follows that there was prior common
purpose between the appellant and the actual perpetrator of
murder, namely, Al to kill the deceased. She actively associated
herself with the deceased's murder. She was given a report
murder by Al himself. She continued to demonstrate her association
with him by paying him R40.00 as a reward for murdering
In these circumstances the acts of Al in killing the deceased are the
acts of the appellant. She is equally guilty
of murder just as Al is.
follows from the aforegoing considerations that the appellant's
appeal cannot succeed. It is accordingly dismissed.
I agree :
OF THE COURT OF APPEAL
APPELLANT : MR. H. NATHANE
RESPONDENT: ADV. R.E. GRIFFITHS
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