CRI/T/74/2002

IN THE
HIGH COURT OF LESOTHO

HELD AT
MOHALE'S HOEK

In the
matter of:

REX

Vs

LIRA
PONTO ACCUSED 1

MOKHESENG
MOLEKO ACCUSED 2

MOTSEKISEFUTHI
ACCUSED 3

TANKI
SEFUTHI ACCUSED 4

TS'OKOLO
LECHAEA ACCUSED 5

THATO
MAKHELE ACCUSED 6

LEU
MOKOALELI ACCUSED 7

NKIEANE
KHOAELANE ACCUSED 8

LIKOTSI
PONTO ACCUSED 9

NKOTSIMOLETSANE
ACCUSED 10

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 13th of July 2007

Ten
accused were charged with murder. At the beginning of the trial
Accused No. 10 did not attend and the Crown represented by

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the late
Advocate Seitlheko - may his soul rest in peace, applied for and was
granted a separation of trials. It is alleged that
on or about the 7
day of November 2001 and at or near Voezana in the district of
Mohale's Hoek, the accused did one, the other,
or all of them inflict
certain injuries on Motlalepula Khasake from which he died at Ntsekhe
Hospital on the 8th day of November
2001.

The crown
led the evidence of some seven (7) witnesses and the defence admitted
the evidence of two witnesses which was read into
the record. The
admitted evidence consisted of formal evidence by the officer who
arrested the accused and took from them five
(5) knobkerries and what
is described as a "sable". The other was that of Puleng
Khasake, the daughter of Motlalepula
Khasake (the deceased) who
testified that on the 8th November 2001 at around 15.30 she noticed
that a person had fallen down at
the fields and that her younger
brother Khutlang Khasake (Pwl) was trying to assist the person. It
turned out to be her father
who had sustained injuries on the head.
At that time she saw A3, A4,

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A7 and A8
go past driving her family's cattle. She heard Pw4 ask the passers by
why they were passing their victim. A3 then said
he wanted to finish
him off and he advanced towards him but was stopped by A7 (Leu
Mokoaleli).

The rest
of the crown evidence is by and large to the same effect. On the
material date, some say the 7th others the 8th November
- it really
does not matter, a group often men armed with knobkerries and at
least one sword went on a mission to impound animals
which were
grazing in a reserved area. There is some dispute as to whether the
area was in fact reserved but the evidence of the
Chief (DW1) has put
the matter beyond any doubt that in fact it was reserved. The animals
that were grazing at the area were those
of the deceased, Thabiso
Tlali and Thabang Ntjana. The deceased's cattle were flighted away at
the point of being impounded and
the group was able to impound only
those from the other two kraals. But because those of the deceased
had been

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flighted
away the other two were able to negotiate the release of their own
cattle from impoundment.

In the
mean-time the deceased's cattle reappeared and were put to pasture in
the reserved area, albeit on a wheat field belonging
to the deceased.
As well as that, small stock was released from the kraal also to go
and graze at the same place.

The group
of ten went for them. The deceased was seated at a vantage point and
watching these proceedings with Pwl and Pw3 who later
left to warn
his herd-boys to drive his own cattle away for fear they might be
impounded again. The deceased then descended towards
his stock. On
arrival he stood in front of it and demanded to know where they were
taking his animals or what they were doing or
words to that effect.

Up to
this stage there really is not much difference between the story of
the crown and that of the defence. From this point the

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story of
the crown itself has somewhat different versions. Pwl (Thabiso Tlali)
says after the deceased had asked the questions,
he saw a knobkerrie
emerge from the crowd and hit the deceased and then many blows
followed until he came next to Al who then hit
him with a sword
falling him down. He was then belaboured. Pw2 says that after the
deceased had said "what are you doing men",
there was a
reply: "You see what we are doing" and that it was Al who
said so. The accused, according to Pw2 then went
past the sheep and
goats and Al struck the deceased with a sword on the forehead. The
deceased staggered. A knobkerrie was thrown
at the deceased and it
found its mark on the deceased who fell down. Pw3 says after the
accused went passed the animals, Al hit
the deceased with a
knobkerrie and he fell down. After he fell down they belaboured him
although he quite curiously cannot say
with what because he was far.
I say curiously because in the case of Al he was able to say he hit
him with a knobkerrie. His evidence
cannot be relied on, on this
point. Pw5 simply says the

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deceased
was fought with sticks and knobkerries. He doesn't know who fought
first. Pw6 says much the same.

All of
the crown witnesses say that after the assault on the deceased all
the accused left and that as they did Pwl tried to approach
the
deceased who was still on the ground but he was chased away and
stones were thrown at him. A3 is singled out as having been

particularly prominent in this activity.

Be that
as it may Pw2, and Pw4 arrived on the scene. The latter asked the
departing party why they were leaving their victim there.
He says A3
then replied that he too must come so that they should finish him
off. If there is anyone to believe in this regard
it would rather be
Pw4 than the witness Puleng Khasake who said the reply came from A7
(Leu Mokoaleli). Pw4 says Al reprimanded
A3 for saying these words.

The end
of it all is that the accused left the deceased there unable either
to walk or talk and he was bleeding according to Pw3
from the mouth,
ears and nose as well

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as from
the head injuries. He was assisted by his relatives who quickly
assembled. These included his son, daughter, wife and brother
(Pw4).
He was taken in a scotch-cart and later in a vehicle and brought to
Mohale's Hoek's Ntsekhe Hospital where he died. News
of this was
heard the following day.

The story
for the defence is that indeed the deceased was assaulted on that day
but that he was the initial aggressor. Al says he
delivered a blow
with a stick. He parried the blow with a stick and a sword. He was
carrying the former in his right hand and the
latter in his left
hand. After this engagement he saw a knobkerrie fly past and hit the
deceased. He was again hit with a stick.
Al says he does not know
where the knobkerrie proceeded from but A3 admits that he threw the
knobkerrie at the deceased. It found
its mark on his head. A2 admits
to hitting the deceased with a stick. He hit him before he was hit
with a knobkerrie. A2 and A3
say they did so in defence of their
brother Al. Interestingly Al says as the deceased raised his stick
and wrapped his blanket

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around
his arm he saw a gun on the deceased's waist. Now this is mentioned
for the first time in the evidence of Al. It was never
suggested to
any of the witnesses, particularly those who handled the deceased
after the accused had completely disabled him. It
is also interesting
to note that according to Al's own account deceased had rendered
himself incapable of using that gun by wrapping
one hand in a blanket
and carrying and fighting with a stick in another. Yet he says he hit
him because he saw the gun on his waist.

Be that
as it may Al, says after these three blows he stopped the fight and
said that they would kill the deceased. The fight immediately
stopped
and he denies therefore that they belaboured the deceased after he
had fallen down. He denies that anyone ever tried to
stop Pwl from
coming to the assistance of the deceased. He admits that he
reprimanded someone for saying that Pw4 should also come
so that he
should finish him off too.

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The rest
of the accused admit being present at the scene but deny that they
participated in the fight. They were in the vicinity
but rounding up
the stock of the deceased. None of them came to the assistance of the
hapless deceased despite the desperate call
to do so by Pw4. He was
instead met by an arrogant reply that he should come over so that he
should be dealt likewise also. All
the accused seemed interested in
was to collect the deceased's animals and not to care at all about
the fate of their victim. Their
answer to that is that they were
afraid of the relatives of the deceased. Surely this cannot be true.
When the elderly Mr Sekhoba-khobe
Khasake made the plea for help he
was in the company of a very young Khutlang Khasake and he said so,
that they were leaving him
with their victim and a small child. Their
hearts were nonetheless unmoved.

The
accused who participated in the attack on the deceased plead
self-defence or the defence of their colleague or brother and the

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others
claim that they should be exonerated because they took no part at all
in the assault.

Now, this
group of men went on their mission armed with knobkerries and in the
case of Al a stick and a sword. It is agreed by all
that it was an
unusual way of going impound animals and that some trouble was
expected. It is evidence before this court that when
impoundment is
resisted the right course to take is to stop and report those that
obstruct impoundment so that they be prosecuted.
The gentlemen
assessors and in particular Mr Nt'sala who has been Court President
for over thirty years agree that this is the
correct and ordinary
procedure. The accused say that they went to impound animals
expecting trouble and for that reason they armed
themselves; they
were obviously not going to follow that procedure. They were looking
for a fight and they got it. They now claim
self-defence. They are in
my view in the same position as the case referred to in the "SOUTH
AFRICAN CRIMINAL LAW AND PROCEDURE
VOL. I (General

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Principles)
by Burchell and Hunt p.274 note 25" where two people agree in
advance to fight with dangerous weapons and one kills
the other. The
one who kills would at least be guilty of culpable homicide. The
accused say the deceased was the initial aggressor.
He may well have
been and from his actions in obstructing the impounding of his
animals he probably was and in this regard I give
the accused the
benefit of the doubt but I say they were very willing and prepared
takers.

As
indicated earlier when the accused left their homes earlier they were
out for a fight. One does not arm with a sword and a stick
if he is
not going out for a fight in which life and limb might be lost. The
possibility was clearly forseen by all. The accused
say it was
because there were animals from other villages yet in the end they
impounded animals from their own village only and
let those from the
other villages go and a life was lost. The common purpose of that
group was demonstrated by their callous attitude
towards their victim
who lay helpless as they drove away his animals and none

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of them
can be heard to say that he did not participate in the offence (see R
v Mabaso & Another 1982-84 LLR 319; R v Shezi
1948 (2) SA 119
A.D).

No
post-mortem report was produced and we cannot say with scientific
certainty what the cause of deceased's death was. But what
is clear
is that immediately before the attack the deceased was by all
accounts a healthy person who was going about his farming
duties in a
normal way. Immediately after the attack he was unable to walk or
talk and was bleeding from the nose, the mouth and
the head injuries.
He died shortly afterwards. It would be idle not to conclude that he
succumbed to those injuries. I so conclude
(see Thabiso Tsomela V-R
LLR 1974-75 (97) ).

I find
accused guilty of Culpable Homicide. My assessors agree.

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SENTENCE

5 years
imprisonment suspended for 5 years on condition the accused are not
convicted of an offence involving violence to the person
committed
during the period of suspension.

T.
NOMNGCONGO

JUDGE OF
THE HIGH COURT

For
Crown: Ms Makholela

Ms
Khoboko

For
Defence: Mr Lesutu

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