CRI/T/63/2006
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
REX
VS
KUBUTU MOKOENYA - ACCUSED 1
SESINYI MOKOENYA - ACCUSED 2
MOLATO MOKOENYA - ACCUSED 3
BOKANG LELUMA - ACCUSED 4
TATOLO MAKETSI - ACCUSED 5
DICKSON SHALE - ACCUSED 6
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 9th August 2007
Accused were charged of the crime of murder it being alleged.
Count I
That upon or about the 18th day of October 1999 and at or near Thaba Tsoeu Ha Shale, in the district
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of Mafeteng, the said accused acting in concert, did one or the other or all of them, unlawfully and intentionally kill Itumeleng Monki.
Count II
In that upon or about the 1st day of October, 1999 and at or near Thaba-Tsoeu Ha Shale, in the district of Mafeteng, the said accused
acting in concert did one or the other or all of them unlawfully and intentionally kill Mahlomola Ralintoane.
Count III
acting in concert, did one or the other or all of them, unlawfully and intentionally kill Miki Mapuleng Leluma. All accused pleaded not guilty to the charges namely: Kubutu Mokoenya (A1); Sesinyi Mokoenya (A2); Molato
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Mokoenya (A3); Bokang Leluma (A4); Tatolo Maketsi (A5) and Dickson Shale (A6) separation of trial having been ordered in respect of Rabosheke Maphobole who was absent Khotso Mokoenya and Tichere Sepeane being deceased.
After the outline of his case Mr. Lenono has by consent handed in three (3) prosecution reports marked Exhibits "A", "B" and "C" contents of which were read into the report. Pw 1 Mabuti Mapoloko Matsoso sworn had stated she lived at Malumeng,
Mafeteng and knew accused persons before court who resided at Pitsos her village and accused's village being close to each other. She knew 'Miki Leluma otherwise known as 'Mapuleng who had since died and she remembered events of the day when she died though she forgets the day, month and year much as she was at her home asleep with her son Matobako Matsoso, Marethabile and the deceased her younger sister who lived at the witness's home. People from Pitsos arrived at 6.00 a.m and she opened the door for them. She had heard a song by them which alerted her. Outside she saw the men from Pitsos who were more than accused
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persons. It was before sunrise and clear outside and they asked her the whereabouts of 'Miki and it was Khotso who asked her whereabouts and she had said she was present and even before answering Khotso had budged into the house. Looking at the men they were in a fighting mood and she saw spears, swords and sticks. Khotso entered but she is not sure with whom and Khotso came out holding 'Mapuleng. 'Miki was in her night dress the group of men saying nothing and she had pleaded with them not to damage her property in the house being when Khotso entered. She did not hear the words of the song and they made off with 'Mapuleng towards her village. She says she knew Khotso, Kubutu (Al) and Tichere (deceased) and as they left they were assaulting her.
She had not seen 'Mapuleng again. She saw the other accused in police custody. Cross-examined the witness testified deceased was her younger sister married at Malumeng and had her own home there. Before her decease she had been living with her. She came to her saying she was afraid of being at her home as she was invaded by men from
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Malumeng, Pitsos and she refused to tell her the reason except what she had it rumoured that Tichere and Khotso's brother died on account of Miki a month before. She says she did report to her mother and the chief that Miki was afraid of staying at her home and can't deny Miki was in love with Khotso's brother. She saw Al for the first time at her home. She says she doesn't know how many people were at her home and can't deny police charged 21 people. She testified there was no identification parade. She admits in her statement she testified Khotso had entered with somebody she did not know.
No re-examination.
Pw2 Maleroala Leroala sworn has testified she lived at Malumeng, Thoteng-ea-Koete and knew Mapuleng in her lifetime and on her death
she was present in the village though she forgets the date, it was in the morning. She says she knows two accused before court namely Khotso and Bokang; she goes closer to accused and points at A4 saying she has a problem with her eyes under light. She says it was
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very early hours before sunrise when she passed many people knowing two and Mapuleng in front of them bleeding from her head. She was at her home when she saw this the crowd not being far from her and about 15 paces away. They were walking with Mapuleng saying, here is Mapuleng she is with us assaulting her; being frightened she ran into her house. She wore a white skirt. Returning she was standing and they walked away with her. It had not taken her five minutes to return and there were many people around and she learned later she had died.
Cross-examined the witness has testified eye problem is her daily problem. She says it was after sunrise and the light was not strong. She says she saw some of the people assaulting deceased Mapuleng.
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By assessor, Mr. Mafatle the witness testified she knew Mapuleng very well and her husband was in the mines and when assaulted husband in the mines.
Pw3 Phokoane Monki sworn testified he was from Thaba-Tsoeu Ha Shale and knew Itumeleng Monki being related to him though deceased. He was son of his elder brother and died in 1999. He knew accused persons who lived in a neighbouring village to his at Pitsos. Then he was at home asleep roused by sound at the door. He rose drawing the door slightly and saw many people surrounding his home. There were three houses and in his house he was alone. These people were throwing stones on some house and others were just standing but in a fighting mood and he did not hear what they said. He went outside not asking who they were. He saw Itumeleng emerging from a flat above his running across the forecourt and somebody from the crowd exclaimed: There he is. They gave chase while he was standing by the door but he does not know what happened to him since he was afraid to make them see him. Itumeleng ended up at corner of the yard
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where he fell and he does not know how he fell. He knew people chasing deceased; it was still dark and at dawn then. They also chased one Mahlomola who was from where Itumeleng was. He does not know whether people chasing Itumeleng and Mahlomola were armed. He says he does not know who chased Mahlomola. All he did was raise an alarm and going to where Itumeleng was found he was injured on the head and all over the body with bleeding wounds, he was dead and Mahlomola ran into the village. He showed the doctor Itumeleng's corpse.
No cross-examination.
Pw4 Matthias Rantabane sworn stated his village is neighbouring to accuseds' village. In October, 1999 he was finishing his morning
prayer as a boy knocked at the door saying many people were entering in the village hurriedly and he had seen them at flat rocks singing a song about a fleeing vulture. They were close to him about 15 paces away carrying sticks and he did not know who they were. He found two
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deceased persons Itumeleng and Mahlomola on the other side of the village and he was with police when they were collected.
No cross-examination by Mr. Lesuthu.
Pw5 Tpr. Nqojane sworn has stated he is at Ketanyane Police Post Mohale's Hoek and an investigating officer in the case and at the time he was stationed at Mafeteng Police Station. He did not know accused persons they having been arrested by Tpr. Mofoka and Sgt. Thamae both deceased. On 18/10/99 a report had been received from Malumeng regarding the murder of Mapuleng Leluma and the body was taken by villagers to the chief. On examination there were eight wounds on the head and weals all over the body there being no exhibits on the scene. The body was taken for postmortem. There was also a report at Shale's two men murdered being Mahlomola Ralinko and Itumeleng Monki and the bodies had been collected and bodies were lying outside a house and stripped Mahlomola had 5 wounds on the chin and
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weals all over the body. He did not know where the exhibits were for they were kept by Sgt. Thamae.
Pw6 Matobako Matsoso sworn has testified he lives at Malumeng Ha Ntja, Mafeteng district and is literate. He knew the late 'Miki Leluma who had since passed away. When she dies he was not present. He now says he was present on the occasion of Mapuleng death. He knew accused persons before court who live at Pitsos near Malumeng. He says he is 27 years old and is literate and is able to remember 1999 when it was in the morning and he was asleep. Lifuo his sister knocked at the door of his bedroom while she was in the kitchen and made a report to him. He did not follow the report save waking up and sitting on the bed until he saw Khotso and Mputi enter. Khotso was deceased and Mputi is A2. After entering they had gone into 'Miki's room and taken her out holding her on either hand and dragging her outside. 'Mapuleng was trying to free herself saying nothing. He
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testified he knew Al, A2's relative. Other than Khotso and A2 he had identified A4, A5, A6 and Mohapi not among accused persons. The men he had mentioned were not the only ones in the huge crowd. He says he did not say he identified A3; he did not talk about him in that he did not identify him. He knew accused persons very well. He says A3 was among people waiting outside. He says he did not mention A3 because he omitted to mention him in his statement to the police. These events had taken place after sunrise and the men were armed with sticks and A2 with a spear. They were in a fighting mood. He watched them for a long time until they disappeared from his view being followed by village people up to Koete's hill where deceased was found.
Cross-examined the witness says he did not flee because the men had not come to him but to 'Mapuleng who knew them nor did he know what for they came. He saw Tichere that day. He stayed at Ntja's and not at Pitso's. He knows Pitso's people because they are neighbours. There were many people there, about 20; of these he only identified the ones he
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mentioned. He says he knew faces and not names. He did not go with police to point them out. He says the names he gave court are the names he gave the police and it was up to the police to make him point them out. He was in his parent's home and his mother (Pwl) was present and did not know if his mother knows Pitso's people. Khotso was with A2 and not Mapetetsa (Al) who was outside and her mother wrong to say Khotso was with Mapetetsa (Al). He says he was in circumcision school with A2 and he knows him very well for they took 6 months together at circumcision school. Villagers had gone to Thoteng-ea-Koete. Mputi was wearing a blanket though he cannot describe it nor can he describe Mapetetsa's and same goes with A4, A5 and A6. He says he is from prison and police did not ask him to identify anything. Put to him accused persons saw witness go through the window the witness denies. Re-examined the witness has testified he did not know whether names he mentioned were real names or nicknames though he identified accused by their names.
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In answer to Mr. Mafatle, assessor's questions he says he did not know why these men took his sister away. He says if he says you are Matobako it is because he knows you.
This matter was postponed Mr. Lenono claiming there are two witnesses unavailable he wished to call. He also says there are three
confessions including that of the late Khotso. Case was accordingly postponed to 22-24/05/07. On 25/05/07, Mr. Lenono informs court
witnesses are in the Republic of South Africa and their whereabouts are unknown and being the case he dispenses with the witnesses.
As for the policeman not before court, his evidence is read into the record by consent. LM12 is also read into the record. As some exhibits were not before court and needed to be brought to court, Mr. Lesuthu has said he doesn't mind their not being brought to court.
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As for confessions' relating to Al and A2, Mr. Lenono says the magistrate who took the confessions has since left the country being at a UK embassy.
Mr. Lesuthu has said he cannot accept the confessions because they are not free and voluntary. Matter was once again postponed to 15/06/07. On 15/06/07, Mr. Lenono closed the Crown case and Mr. Lesuthu also closed the defence case.
There were addresses by both crown counsel and the defence counsel.
In so far as Pwl's evidence is concerned, it relates, primarily, to Count III and the death of 'Miki's "Mapuleng Leluma. Her evidence is that the men at her home were armed with spears, swords and sticks Khotso (deceased) asking the whereabouts of 'Miki the deceased and coming out of the house holding 'Mapuleng ('Miki) who was in her nightdress. The witness's evidence was that apart from Khotso she knew
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and there was also present Kubutu (Al) and Tichere and as the group left 'Miki's ('Mapuleng) was being assaulted. She had not seen 'Mapuleng 'Miki's again.
Cross-examined the witness testified 'Miki was her younger sister and had sought refuge from her because she was afraid of being at her home as men from Malumeng, Pitso's, invaded her. The witness has testified 'Miki's report was made to the witness's mother and the chief. She had seen Al for the first time at her home. She also acknowledged the fact that in her statement she had said Khotso entered with somebody she did not know.
Pw2's evidence covers Counts 1, 2 and 3 to the effect that among those present when 'Miki was assaulted bleeding from her head and Itumeleng and Mahlomola chased was A4. The witness had to go close to accused persons in order to point out who she was talking about saying she had a problem with her eyes under light and that she did however see A4 because it was in early hours before sunrise and being only 15 paces
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away and not under light. I am satisfied the witness did see A4 and in any event that she saw A4 her evidence in this respect has not been gainsaid. Pw3 covers Counts I and II to the effect that he saw Itumeleng and Mahlomola chased by the crowd and he raised an alarm on finding Itumeleng injured on the head with bleeding wounds all over the body and dead while Mahlomola ran into the village.
Pw3 after a report was made to him about many people he had seen them at flat rocks singing a song about a fleeing vulture and they were carrying sticks though he did not know who they were. In presence of police two deceased persons Itumeleng and Mahlomola had been found on the other side of the village. Pw5 was a policeman who collected bodies of the deceased and examined them for wounds. I may mention Pw4's evidence was of no consequence as he saw a crowd without recognizing anybody as a participant in the crimes committed.
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Pw6 was an important witness. He says after a report was made to him by his sister Lifuo he did, while sitting on the bed see Khotso and Mputi, Khotso being deceased and Mputi A2 who, after entering 'Miki's room they had taken her out holding her on either hand dragging her outside even when 'Mapuleng (deceased) was attempting to free herself. This witness testified, quite importantly, that other than Khotso, Al and A2, he also identified A4, A5, A6 and Mohapi not among accused persons. The witness further testified the men he mentioned were not the only ones in the huge crowd. The witness has testified he did not say he identified A3 and says he did not talk about him because he did not identify him. The witness has testified he did not mention A3 because he omitted to mention him in his statement to the police.
I have read Pw6's evidence as saying he did not talk about A3 because he did not identify him. Having said this, the witness changes his mind saying he did not mention A3 because ■ he omitted to mention him in his statement to the police and the court is now confronted with two versions: did
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the witness not say anything about A3 because he did not identify him or because he omitted to mention him in his statement to the police?
On the face of it, it is difficult to choose from the two versions except that while the statement to the police is unsworn, the witness's evidence before this court is on oath and as can be expected, the question of an accused making an unsworn statement and a sworn statement has been dealt with extensionally by courts of law. I am saying this because statements before me made to the police are not sworn to and chances are that Pw6's statement is not sworn to either. If sworn to there is no problem because the two statements carry equal weight. If the statement to the police is unsworn, it does not carry the same weight as statement made to court in that the latter is sworn to. Assuming that the statement made to the police is unsworn, it has been said an unsworn statement from the dock though technically to be regarded as evidence, is certainly not entitled to the same weight as sworn testimony; but it must nevertheless receive due consideration
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by the trier of fact and be accorded the same weight as, in the particular circumstances of the case, the trier of fact considers it deserves (see R v Cele, 1959 (1) SA 245 (AD). In the instant case, the statement was made to the police whereat Pw6 omitted to, according to him, to mention A3 mentioning him in a sworn statement before this court. The reason, in Pw6's evidence-in-chief for not mentioning A3 is that he did not identify him. Suddenly Pw6 turns saying: "I saw A3, he was among people waiting outside". He now says he did not mention A3 because he omitted to mention him in his statement to the police. Curiously, in cross-examination A3's identity by Pw6 was not pressed home.
Indeed it was Pw6's evidence that he knows Pitso's people in that they are his neighbours and yet, of about 20 people on the scene he identified only accused persons reminding me of a saying, we are not to expect you when we see you for it would seem Pw6 is able to identify only those he sees in the dock. This is untenable. None of the crown witnesses identified A3 and there is confusion whether or not Pw6
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identified him. Admittedly, other than by Pw6, Al and A4 were positively identified A2, A3, A5 and A6 being identified by Pw6 though I doubt if A3 was identified by Pw6 because I do not understand why, while his mind was fresh, he did not tell the police among the men he saw at scene of crime was A3. Despite this, and whatever was Pw6's evidence, his evidence was not controverted by the defence.
In Humphrey v Lasra Transport Holdings Ltd and Another, 1994 (4) SA 388 (CPD) matter was referred to hearing of oral evidence. At close of plaintiffs case there was strong prima facie case in favour of applicants. On respondent's case in Opposing Affidavit applicants having no case whatsoever. Respondent failing to testify and court finding it could justifiably be expected of respondent if he had confidence in his version he would reiterate that version in oral evidence submitting it at the same time to cross-examination.
It was said in the result court entitled to draw an adverse
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inference against the respondent and I am of the view although the finding is sourced from a civil case, it equally applies in criminal cases recalling in the instant case at the end of crown there was very little evidence against A2, A3, A5 and A6 who are, largely,
implicated by Pw6. Strangely, at the end of crown case Mr. Lesuthu did not apply for the discharge of accused persons the only reason for not doing so in my view being because Mr. Lesuthu considered his case and found it was not worthwhile applying at that stage as there was evidence to go to trial. But the court was a little taken about when Mr. Lesuthu after the crown case closed his case, something he was entitled to do in any case.
One of the strangest aspects of Mr. Lesuthu's case is that save putting it to Pw6 that accused persons saw the witness go through a window, accused persons' defence was not put to the crown witnesses, not having been put I would surmise for the reason that there was no such defence as, by putting it to Pw6 as he did, it was admission on behalf of accused persons
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that they were present on the occasion of murders of which accused persons are charged.
Mr. Lesuthu has submitted both before me and in his Heads of Argument that six accused were seen among a crowd of twenty people and deceased having been driven away from her sister's home she died of injuries inflicted by some people not before court. With respect, there was no such evidence, evidence in court being that 'Miki in Count III after being dragged from her sister's home by Khotso (deceased) and Tichere (also deceased) members of the crowd assaulted her. Again, accused are charged of three and "not murder of two people" as Mr. Lesuthu claims; secondly, it was not only the deceased driven from her sister's home that died of injuries inflicted on her by the crowd, two other people died of such injuries inflicted on them by the crowd. Crown evidence is not specific as to who inflicted the fatal injuries save that there is crown evidence that accused persons were members of the crowd that inflicted injuries on the deceased persons. Mr. Lesuthu has further submitted two accused confessed before a
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magistrate, while this is true, I disagree that the "confessions failed to stand the test of cross-examination" because owing to the unavailability of the magistrate the confessions did not form part of the crown case. I also disagree that without the confessions the court was left with no evidence against accused for there was crown evidence which implicated accused persons bearing in mind crown case was based on common purpose.
Mr. Lesuthu has also submitted there is no explanation why other accused are not charged; he had further submitted for there to be a conviction the crown needed accomplices. He also says as the crown relies on common purpose, it must first find perpetrators of the crime guilty and then prove the part played by accused in associating themselves with the crime. This is a novel proposition for I don't know where Mr. Lesuthu gets the idea that where several people commit a crime for charges to stand they must all be charged for charging an offender is dependent on evidence. Further, for a conviction the crown is not dependent alone on accomplice evidence. As
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for finding perpetrators of a crime guilty before common purpose is invoked, here again there is no authority for the novel preposition
because where common purpose is in issue, causation is not relevant in that the act of one perpetrator is the collective act of all perpetrators based on individual association with the crime.
In support of socius criminis, Mr. Lesuthu has quoted cases R v Peerkhan and Lalloo, 1906 TS 798 which was approved in Nqcobo, 1928 AD 372; R v Matsitwane and Another, 1942 RD 213 and S v Williams, 1970 (2) SA 654 (A). In Matsitwane above, Mr. Lesuthu is very wrong for the case had to do with which of the two accused inflicted the fatal blow; besides, the case concerned two contradictory statements by accused where the trial court reserved a question of law as to whether there was any evidence upon which accused could be convicted of murder seeing it was a question of which of the contradictory statements to accept or reject. Held, statements not having been made on oath during the course of trial they had been tendered for the purpose of
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establishing the truth of their contents containing, as they did, admissions of fact; that such admissions were only admissible against the accused who made them and that conflicts between the two statements were irrelevant. Held, further, that as evidence led to a reasonable inference that there was joint attack on deceased by at least two and possibly three persons, it was not necessary for the crown to prove which one of the assailants delivered the fatal blow and that, as the evidence led to a reasonable inference that both accused had taken part in the attack on deceased, the question of law reserved should be answered in favour of the crown.
With regard to above observations, I have wondered what Mr. Lesuthu is driving at for in the instant case there is no question of
contradictory statements by accused and, besides, finding in Matsitwane's case above favours the crown case in the instant case.
In Rex v Peerkhan and Lalloo above, the accused appeared on a charge of dealing in overwrought gold and it
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was found a person who knowingly aids or assists another in the commission of statutory offence is himself liable as a principal offender. In the instant case there is no question of principal offender(s) or for that matter aiding, assisting as those present on the seen of crime (including accused persons) participated in the fatal assault of the three deceased persons based on the principle of common purpose and it is unnecessary to particularize as to who inflicted the fatal blow.
Williams and Another above is a criminal case in which one accused stabbed the deceased in the neck and another in the back and the trial court convicted both accused. On appeal the Appellate Division had confirmed the conviction on the ground that in any event appellants' intention and state of the mind was the same. Not without cause for according to Snyman in his Criminal Law - 2nd Ed. at pp. 258-259, the crucial requirement is that the persons must all have the intention to murder and associating one another in committing the murder. It has been said once this is proved, the act of who actually shot and killed Y is imputed to Z who
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was a party to common purpose and actively associated himself with its execution even though a causal relationship between his act (Z's) and Y's death cannot readily be proved, in the event X's act is then regarded as also that of Z (see Malinga 1963 (1) SA 692 (A) 695; Daniels 1983 (3) SA 275 (A) 323F; Shaik, 1983 (4) SA 57 (A); Sapatsa, 1988 (1) SA 868 (A) 896, 901. Safatsa as the leading case was analysed by Prof. Snyman on p.260 of his work above to the effect that where a crowd of about 100 people attacked Y who was in his house by pelting the house with stones, hurling petrol bombs through windows catching him as he was fleeing from the burning house stoning him, pouring petrol over him and setting him alight, eight people were charged of murder two of them acquitted and six convicted of murder; on appeal conviction confirmed the Appeal Court rejecting the idea of causal connection but assuming that a causal connection between the acts of an individual participant in the common purpose of Y's death need not be proved in order to sustain a conviction of murder so long as in respect of such a participant it was sufficient that the individual participant actively associated
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himself with the execution of the common purpose. The court also rejected the notion of active association being too vague to serve as a touchstone of liability saying that would stretch the concept of causation beyond acceptable limits.
Prof. Snyman at pp.261/2 above has also pointed out active association with common purpose presupposes some kind of overt or objectively
ascertainable conduct by the particular accused indicating common purpose with the party actually committing the murder such as joining a crowd intent on the commission of the crime or showing solidarity with the person or persons actually committing the crime (see also Whiting 1986 SALJ 38 39-40; Matenkis, 1988 SACJ 226 231-232. It was further said the particular accused must be shown to have had the intention not only to kill but also to associate himself with the unlawful conduct of the person or persons committing the crime.
It was also said somebody who happens to be present at the scene of action but is merely a passive spectator of the
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events, cannot be convicted of the crime. Problem with accused persons is that crown witnesses were not challenged as to their presence,
association and participation in the murder of deceased persons nor is there any evidence that accused persons though present on the scene of crime were mere spectators and bystanders of events that took place on the fateful day. On the contrary, as shown above, accused persons were part of a crowd assembled at Pwl's home whereat Khotso and Tichere flushed out 'Miki (Count III) dragging her along; they were also part of the crowd that fatally assaulted deceased persons in Count I and II not as bystanders or spectators but as active participants associating themselves in every material respect with the fatal assault on deceased persons. When 'Miki's (Count III) was dragged away from Pwl's home, accused persons associated themselves with this deed and it was their intention to kill 'Miki (Count III). By the same token, when deceased persons in Counts I and II were either chased or hunted down and fatally assaulted, accused persons had not only the intention to murder
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deceased persons in Count I and II, they also actively associated with those who inflicted fatal blows on deceased.
Since when the three deceased persons were murdered accused persons were part of the crowd there being no evidence who inflicted the fatal blows, by reason of accused persons being part of the crowd and actively associating with it in every material respects, there was no need for the crown to prove who delivered the fatal blow(s) on deceased persons for accused by their presence on the scene of crime not only actively associated with those who murdered the three deceased persons, but had the requisite intention to murder deceased persons in Count I, II and III.
The court having believed crown witnesses and the crown having proved its case beyond reasonable doubt, accused 1,2, 4, 5 and 6 are found guilty as charged in Counts 1, 2, 3 and accused 3 by reason of there being very little evidence against him and evidence which this court did not believe but
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doubted, he is found not guilty, is acquitted and discharged on all counts.
My assessors agree.
G.N MOFOLO
JUDGE
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In Extenuation
Mr. Lesuthu says deceased persons killed Lechesa Al's brother and this was a well known fact for Itumeleng in Count I and 'Miki's in Count III were arrested by police who nevertheless released them. Efforts to have suspects arrested and dealt with by law were pointless and the matter having been reported to the chief he ordered that those involved in the murder of Lechesa be arrested for it seemed the police were turning a blind eye. It was in the course of the arrest of Itumeleng (Count I) Mahlomola (Count II) and 'Miki (Count III) that a misunderstanding arose resulting in the death of the three deceased persons.
Mr. Lesuthu has submitted Lechesa's death was treated so badly by the police there having been no postmortem report made resulting in Al and brothers being severely provoked and frustrated by the events. Mr. Lenono has taken exception of this line of argument taken by Mr. Lesuthu in that there was no shred of evidence that Itumeleng in Count I and 'Miki
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in Count III killed Al's brother Lechesa, being something inappropriately revealed from the bar.
I quite agree with Mr. Lenono because accused persons stayed away from taking the court into their confidence. Be this as it may, the court was at a loss why deceased were killed but since motive is irrelevant, this court takes the view that if true accused persons and particularly Al acted like an adolescent instead of an adult, I cannot understand why, and in arresting three people, such a crowd was invited. In Al inviting the crowd, people who were not in the least concerned in his personal affairs, Al brought the unfortunate consequences on himself nor can accused persons be exempted for poking their noses in matters that do not affect them. This was a police affair and if police failed there were other legal avenues open to Al to explore. By inviting such a huge crowd he knew or ought to have known that things would go wrong as they did. I take Al and accused persons to have taken the law into their hands. Despite all this, there can be no doubt that Al and accused persons displayed
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amazing immaturity. I am in any event satisfied that there are extenuating circumstances.
In mitigation
I have accepted of Lesuthu's submissions in mitigation being that some accused are family men supporting wives and children while others are fairly young and their future not to be blighted. I am also aware as accused persons have been convicted, they, are liable to raise heads of the deceased persons though this does not detract from the horror and foul murder committed by the prisoners.
Having taken into account circumstances of this case and person of the accused the least sentence imposed is 5 years imprisonment on each accused in Counts I, II and III and sentences are to run consecutively.
G.N.MOFOLO
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For the Crown : Mr. Lenono
For the Defence : Mr. Lesuthu
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