CRI/T/93/99
IN THE HIGH COURT OF LESOTHO
In the Matter Between
REX
Vs
PAAMO RASEHLOHO 1st ACCUSED
NTOBAKI SHALE 2nd ACCUSED
LERONTI MAFEREKA 3rd ACCUSED
MAHOLA RASEHLOHO 4th ACCUSED
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 15th August 2007
All four accused appeared before me on charges of murder on the basis of the allegation that upon or about the 15th day of April 1995 and at or near St Michael's in the district of Maseru they each or the other or all of them unlawfully and intentionally kill Thabo Tsebo and Lefu Tsebo. They pleaded not guilty to the charges. Unfortunately, one of them, namely, Leronti Mafereka passed away before this trial could reach its finality.
I find it convenient to mention from the onset that initially, eight accused were formally charged herein but by the time this matter was placed before me, about half of them had since passed away. This is hardly surprising when considering the fact that this case is more than ten (10) years old. As
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is usual with the office of the DPP, no explanation was offered from the side of the Crown why it took so long before it could be prosecuted. It is no small wonder therefore that even some of the statements got misplaced in the interim, thereby denying the defence the opportunity to study them in preparation for the trial. Some of the accused persons passed away before they could answer the charges preferred against them and the other one (A3) before this matter could be finalized.
Needless to mention, it is delays of this nature that negatively affect the justice of the case not only with regard to interested persons such as the family of the deceased persons, but to the accused persons as well who have the right to know their fate and speedily too. In my opinion this is one of the classical examples that epitomize the adage 'justice delayed is justice denied'. At this rate, there is no way we are going to win back the public's lost confidence in the criminal justice system.
I now turn to deal with the evidence that has been placed before the Court. The evidence of the Crown consisted of testimonies of members of the deceased's family only and the gist of it is that in the morning hours of the stated day, a group of about twenty (20) people arrived at the homestead of the late Thabo Tsebo whereby they attacked and killed him and his son Lefu Tsebo by shooting them. The evidence also revealed that the deceased are father and son respectively.
According to the evidence of P.W.I 'Maseselo Tsebo who testified that she is the daughter-in-law of Thabo Tsebo and the wife of Lefu Tsebo, on that fateful morning, she heard someone shouting outside ' Why are you going to
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kill Ntate Thabo?' Upon hearing that, she opened a window and noticed Leronti's sister holding him and trying to stop him from going to the house. The said Leronti was accused no. 3 who I have already shown passed away in the middle of this trial.
P.W.I further testified that she also saw a group of people behind A3 who were all heading to the house. That she then went outside the gate to where the multitudes were heading and saw a person running in front of them and that they were shouting 'stop that thief whereby that person disappeared behind the kraal. She added that she heard someone shout 'Shoot! When are you going to shoot?' whereupon she saw a man whom she later learned to be Makhoathi shoot her father-in-law Thabo Tsebo and the latter staggered into the house.
I should mention at this point that the said Makhoathi is not among the accused before the Court. It was P.W.l's further testimony that she then heard a voice saying that after those people were killed, they should also kill the women which is when she fled in the direction of the mission. She further told the Court that before she could arrive thereat, she saw her husband, Lefu Tsebo running down the road with Thabang Mafereka and Matoli (both since deceased), chasing him whereupon the latter shot Lefu with the others following closely behind.
P.W.I added that she then saw her husband fall into a culvert whereby he was shot again. Further, that it was while she was at the mission where she had fled that the same group of people passed by and were patting Makhoathi on the shoulder, telling him that he is a man. When she went to
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the culvert, she found her husband lying on the ground with his neck twisted and his mouth open. After covering him with a towel, she and others went to the deceased Thabo's house where they found him lying on the floor. She also explained the nature of the wounds that she saw on the deceased. Lastly, she added that the accused persons before the Court were all present amongst the group of the deceased's assailants.
P.W. 2 in turn testified that the deceased persons were his grandfather and father respectively. He also told the Court that on the morning in question he saw a group of people who were laughing and blowing a whistle approaching his home. The group entered through the gate and he heard a voice saying 'Shoot! What are you waiting for?'
He then heard gun reports and saw Makhoathi who was in front of the group fire the first shot. It was P.W.2's further evidence that he and the others who had all been loading sheep into a van ran into the house after his grandfather also told them to run. He added that more shots were fired and he saw his grandfather fall down as he was about to enter the house. He then hid in another room and heard further gun reports. When he heard the reports coming his way, he ran outside where he hid under some bags containing farm produce.
It was this witness' further testimony that the group of people could not see him from where he was hiding and that he saw some of them chasing his father amongst whom he recognized Thabang Mafereka, Ntala Mafereka and Matoli Mokoma as well as accused no.4. He then saw them shoot his father at the culvert after which they came back to the house in song, went to
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the deceased Thabo's vehicle and took his firearm. He then heard more shots after which the group left singing. It was then that he left his hiding place in search of the others with whom he had fled. He also explained the wounds that he saw on the deceased persons.
P.W.3 Seselo Tsebo also testified that the deceased are his grandfather and father respectively. He told the Court that on the morning in question he was at home when he saw a group of people approaching. Amongst them he recognized Miki Rasehlooho, Leronti Mafereka (A3), Thabang Mafereka and Mahola Rasehlooho (A4). At this stage, the witness pointed at all four accused and told the Court that he was referring to them.
He added that upon entering the premises, Matoli Rasehlooho said 'shoot!' whereby the group of people started shooting although he did not see who fired the first shot. The deceased Thabo then told them to flee and they fled and hid under some bags. He added that Thabo was shot whilst in the house and that Lefu ran out and was chased by the same group of people amongst who were the accused.
It was his further testimony that one of the people asked what they were waiting for and to shoot 'this person' but he did not recognize the author of the words. Lefu was chased until he was shot and he fell down below his yard in a culvert. Like the previous witness, P.W.3 described the wounds that he saw on the deceased.
The last witness that was called by the crown was P.W.4 Seabata Tsehloane. His evidence was that he was brought up by the deceased
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Thabo and that on the date of the incident he was present at the latter's home. His evidence in chief was more or less similar to that of the other three crown witnesses. He however testified that of the group of the people who took part in the assault and killing of the deceased, he recognized three people, namely, Matoli, Thabang and Leronti (A3).
It was his further testimony that during the shooting incident, he like the others ran away and that two people chased him but when they got close, one of them being Paulosi, who pointed a gun at him, he heard a voice calling out that they should leave him alone as he was a child. The two then left him and he remained there and saw part of the group chasing Lefu and the others chasing Thabo though he did not recognize those in the latter group.
He continued that he heard gunshots from those who were chasing Lefu after which they came back to Thabo's place. The witness added that he did not go back to the house but sat by the road where he eventually got into a vehicle and left for Maseru to report to the police. He later learned that the two had died.
After the four witnesses gave their respective testimonies, the post-mortem reports were read and handed over to the Court by consent with the defence team. The crown then closed its case.
At the end of the crown's evidence, Counsel for the accused applied for their discharge. In his verbal and written submissions, Mr. Lesuthu submitted on behalf of the first three accused that there is no evidence connecting
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Accused No.l and No.2 with the crime and that the evidence before the Court has established that Accused No. 3 was held back by his sister at the gate and as a result was prevented from joining the mob.
He added further that there is no explanation with regard to the absence of the firearms that were allegedly used in the commission of the crime and also why the rest of the group of about twenty people is not before the Court except for the four who are all since deceased.
It was Mr. Lesuthu's further submission that the three accused should be acquitted at this stage without being called upon to answer only for them to strengthen the Crown's weak case.
In turn it was submitted by Mr. Mohau on behalf of accused No. 4 that all the witnesses that were called to give evidence in support of the crown's case are members of the deceased's families. He added that no independent witnesses were called to give evidence including the police officer who investigated the crimes especially regarding accused No. 4's alibi.
Mr. Mohau submitted further that the witnesses' evidence differed in material respects from what they said at the preparatory examination
especially the names they gave as those of the people they saw on the day in question which were none of the accused before the Court and that the names of the accused were added to the list by P.W. 1 and P.W.3.
Counsel for accused No.4 added that the evidence of P.W. 2 has greatly improved in material respects from what he told the magistrate at the P.E.
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wherein he stated that on the material date, he was able to recognize the assailants because he was standing outside the house and they just ignored him. Yet, in his testimony before this Court, the witness completely changed his story and stated that he ran into the house along with his father, grandmother and grandfather and after a while went to hide under some bags of grain from where he was able to see and identify the assailants.
Mr. Mohau also pointed out that under cross-examination, the witness was unable to explain why in her evidence at the P.E., 'Mamoeketsi had omitted to mention him as having been amongst the people that fled into the house. Further, that no exhibits were handed in by the Crown to form part of the evidence.
It was thus submitted on behalf of accused No.4 that the onus was on the Crown to disprove his defence of an alibi beyond a reasonable doubt. In addition, that the investigating officer ought to have been called to state what he found after following up on the accused 4' explanation. Mr. Mohau also added that all the witnesses had a clear interest in the matter and that their testimonies which kept changing with time cannot be enough to put the accused to his defence.
In the alternative, Mr. Mohau submitted that even if this Court was to hold that there is evidence that accused No.4 was at the scene, the evidence taken in its totality falls far short of establishing the requirements of common purpose between him and the assailants and that it would be improper to call the accused to his defence under these circumstances. Counsel for accused No.4 also referred the Court to the case of S v Mgedezi & Ors 1989 (1) SA
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687 (A) at 705 I to 706 C and that of S v Jama & Ors 1989 (3) SA 427 A at 436 D.
In response, Mr. Peete submitted on behalf of the Crown that the evidence led by the prosecution is largely circumstantial there being no direct evidence that a particular person pulled the trigger at the deceased persons. He pointed out that all the crown witnesses have testified that all the accused were among the group of people who attacked and killed the deceased especially because the incident occurred in the morning hours when everyone could clearly see so that there was no error in persona.
Mr. Peete made the further submission that according to the evidence before the Court all the people who went to the deceased' home did so acting with a common purpose and to this end, he referred this Court to the work of CR Snyman; Criminal Law; 3rd Edition at 257. Counsel added that a person is also guilty if he unlawfully and intentionally furthers a crime committed by someone else.
Further, that P.W.3's testimony revealed that all the four accused before the Court were among the people who attacked and killed his grandfather and father and that all of them are known to him. Mr. Peete also referred the Court to the case of Mabaso & Another v Rex 1980-1984 LAC 256 at 258-255 wherein the Court of Appeal quoted with approval the position stated in the case of S v Madlala 1969 (2) SA 637 (A) at 640.
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After considering all the above submissions, I dismissed the application and promised that my reasons would form part of the judgment and I proceed to give them immediately below.
Firstly, I do not agree with the submission that the crown's evidence was largely circumstantial as it was testified to by eyewitnesses. It was as such, direct evidence. Nonetheless, I found that although there were some inconsistencies with regard to the crown witnesses'
testimony, their evidence was basically the same in so far as the attack and shooting are concerned. It is trite that witnesses'
evidence is not expected to be the same word for word and in all respects if the inconsistencies do not go to the heart of the matter.
Further, as has been stated in previous authorities, the Court cannot expect witnesses to recount their evidence as if they were reciting rehearsed testimony since that would in itself be cause for concern. It should be remembered that the incident in question is alleged to have occurred more than ten (10) years ago, a fact which I have already alluded to earlier on in this judgment.
Further, all the accused were placed by the witnesses at the scene, although one of them P.W.4 testified that out of the group of assailants he recognized four people namely, Matoli, Thabang, Paulosi all of whom are not before this Court, as well as Leronti who I have already shown is no more.
On the issue of the witnesses' credibility, I do agree with the submission that was made by Mr. Mohau that in our system even at this stage of the
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proceedings the Court can consider this issue especially on the strength of the case of Rex v Teboho T. Ramahaetsana & 2 Ors 1978 LLR 172 at
174 quoted to this Court. Therein, the Court per Cotran CJ had this to say:-
"In Lesotho, however, our system is such that the Judge (though he sits with assessors is not bound to accept their opinion) is the final arbiter on law and fact so that he is justified, if he feels that the credibility of the Crown witnesses has been irretrievably shattered, in anything to himself that he is bound to acquit no matter what the accused might say in his defence short on admitting the offence. "
However, whilst I agree that in casu, there are certain inconsistencies with regard to the evidence of the witnesses which they gave in Court and what they testified to in the preparatory examination, as I have said, they are basically on non-material issues such as for instance, as was suggested to the same witness, he had mentioned at the P.E. that he was able to recognize the attackers because he had stood outside and they had just ignored him, yet before this Court he testified that he was amongst the people who fled and hid inside the house as soon as the shooting started.
In addition that P.W.I had mentioned before this Court only three people as being the ones she identified and that none of them were the accused persons whereas at the P.E. she had testified that she did not look at or identify any of the assailants. Indeed perusal of the P.E. record reveals that this witness did testify more than once during her evidence that she was unable to look at and identify any of the people who were at her house because of great fear. It is however my view that although there were these inconsistencies, they were not of such a serious nature as to cause damage to their evidence as a whole especially in so far as how the shooting incident is alleged to have taken place. In this last regard, their evidence is corroborative.
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Another suggestion was made that only members of the family were called as witnesses by the Crown and that this factor should be taken into account in assessing the credibility of the evidence. Whilst I agree that this might be unusual, I do not think that the factor in itself necessarily discredits witnesses' evidence. It is possible that an incident can be witnessed by members of the family only in the case where other people are not around at the time. For example, it can happen at night, or very early whilst other people are still sleeping.
Nonetheless while this has not been suggested to be the position in casu, it is my opinion that the reason for this can be inferred from some of the questions that were put to the crown witnesses by both Counsel during cross-examination, to wit, that the deceased Thabo was not a very popular man due to the fact of being notorious for cruelty to some members of the community including allegations of murder against some.
To illustrate this point some of the questions that were put to Al by counsel for A4, Mr. Mohau in relation to the deceased Thabo were as follows:-Q. What was he famous for? A. I do not know.
Q. Was he well known at St. Michael's? A. Yes. He was resident there.
Q. Did he have any court cases to your knowledge, as a party? A. Yes he was suing some people.
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Q. Was he also accused? A. Not that I know of.
Q. Did you know one Samuel Rasehloho? A. Yes. He is a boy in the village.
Q. Where is he?
A. I heard that he died in Roma.
Q. When?
A. Prior to my father-in-law.
Q. Can you deny that was the source; that your father was said to have killed him?
A. I will because I do not know.
From what I gathered from the above questions and those which were put to the other witnesses by Mr. Lesuthu as well, the deceased Thabo was not exactly well liked by his fellow villagers. However, whether or not there was a legitimate reason behind this is immaterial in this case. The point I am making is that for this reason, I find it hardly surprising that only members of his family came to testify in this matter.
By the same analogy it is my view that the question of the investigating officers not having been called to give their evidence by the Crown is not per se, reason enough to discredit the evidence of the eyewitnesses who were at the scene at the time of the incident. In my view, it is an issue to be
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addressed own when the Court assesses the totality and strength of the evidence before the Court.
With regard to the issue of accused No. 4's defence of alibi, whilst I agree that absence of the police testimony is curious, I also considered the fact that more than one of the witnesses placed him at the scene. In addition, I could not ignore the fact that the nature of the incident was confusing and upsetting, especially to the Crown witnesses who were all members of the family. In all fairness, they could not be expected to see and/or perceive things in exactly the same manner. Even under ordinary circumstances, this is not easy.
Suffice it to say that in my view, their testimonies were on all fours in so far as the fact that the incident was carried out by a big group of people some of whom were the accused persons before the Court is concerned. Even the very fact that the number of the alleged assailants was estimated to be around twenty, further strengthens my point that it would not easy for the witnesses to see the same things or be able to identify the same people during the entire occurrence.
It is for these reasons that I was satisfied that the crown had discharged its onus of placing a prima facie case before this Court and accordingly dismissed the application for discharge.
I now turn to deal with the submissions that were made at the end of the trial for and against the accused. Mr. Lesuthu who represented the first three accused started with the contention that it is surprising that out of about
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twenty people who were initially charged, only eight (8) of them were placed before the Court.
He added that failure by the Crown to give any explanation as to the absence of the other accused may give rise to the presumption that police investigations might have revealed that the accused might have not actively participated in the crime. Further, that the Crown should have obtained accomplice evidence but that instead, only a very close family of the deceased 'that have been carefully selected to give evidence' as he contended, were called.
Mr. Lesuthu also submitted that the Crown has failed to prove conspiracy to kill and the presence of premeditation. In addition, that even common purpose as it is legally defined was not established because for it to succeed, the accused must act in concert in doing something. Lastly, that the evidence of the accused was not shaken during cross-examination and that they should on that basis, be acquitted. To this end Mr. Lesuthu referred the Court to the case of R v Nsele 1995 92) SA 145 (A) as quoted by Schreiner AJ in R v Bergslell 1995 (4) SA at 188 (A).
With regard to A4, Mr. Mohau made the submission that the witnesses' evidence differed on material respects from what they said at the P.E. and what they testified before this Court. That this is specifically in relation to P.W.I and P.W. 3's evidence where in the former, they did not include A4's name among those of the people they alleged they identified at the scene yet they told this Court, that they did see him.
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Mr. Mohau also made reference to the other inconsistencies in the evidence of the Crown. He further added that the defence that was put to the Crown witnesses with regard to A4 was that of an alibi to the effect that on the date and time that the incident is alleged to have taken place, A4 was had been sent to ha Mokhoabane, Sefikeng to report the death of his elder brother who had been killed the previous day.
Further, that it was A4's case that when he came back, he learned of the death of the deceased persons herein from one Matoli who even confessed that it was he and Thabang Mafereka who had killed the deceased and that they had reported the matter to Chieftainess Mamasakoane Mafereka and had also handed in their firearms.
Mr. Mohau pointed out that A4 was not cross-examined at all on this version and that the chieftainess was also 'prevented' from testifying by the Crown in the sense that she had initially gotten into the witness box and left without testifying but had subsequently not been called again by the Crown. Counsel for A4 submitted that the issue for determination is whether on the totality of the evidence before the Court, it can be said that the case against A4 has been proved beyond a reasonable doubt.
In addition, Mr. Mohau made the submission that it is trite that the onus is on the Crown to disprove an alibi beyond a reasonable doubt and that if there is a reasonable possibility that the accused' defence of being at one place when the offence was committed at another might be true, he is entitled to an acquittal. To this end Mr. Mohau referred the Court to the
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cases of Lempe v R LAC (1995-99) 359 at pp381-382 and R v Biya 1952 (4) SA 514 (AD) at 521.
Finally, Mr. Mohau submitted that where a party fails to test evidence through cross-examination such as in casu, it may be very difficult if not downright impossible for such a party to deny the truth of such evidence. In this regard the Court was referred to the remarks made by Lord Handworth M. R. in Mechanical ETC Co. Ltd v Austin (1935) AC 346 at 359 as well to the work of Hoffman and Zeffert, South African law of Evidence (3rd Ed) pp 356-357.
In his response, Mr. Peete made the submission that in casu, on the basis of the Crown's evidence especially P.W.3's testimony, even if it was Makhoathi who killed the deceased, he was with the accused persons before the Court and that they all acted together to achieve their intention of killing the deceased persons.
Further, that the meaning of the doctrine of common purpose is 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. Further, that in such a situation, the acts of one are the acts of others. To support his point, Counsel quoted the cases of S v Khoza 1982 (3) SA 1019 (A) and S v Sefatsa & Others 1988 (1) SA 868 (A).
Mr. Peete added that where an accused has been shown to have joined a conspiracy, if he is to escape liability, it must be proved as a fact that he
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dissociated himself from the common design before it was executed. He referred the Court to the decisions in S v Shaik & Others 1983 (4) SA p 57 at pp 64-64 and S v Madlala 1969 (2) SA 637 A at pp 640-641.
On the defence of alibi, Counsel for the Crown made the submission that the accused must give the most satisfactory form of rebuttal and show that he could have not have been the one who committed the offence because he was elsewhere at the material time.
He added that whilst the Appellate Division stated in R v Biya 1952 (4) SA 514 that the accused never bore the onus of proving his alibi this does not mean that the Court must consider the probability of alibi in isolation. On this same point, he further made reference to the case of R v Hlongwane 1957 (3) SA 337 (A) at pp 340-241.
I proceed to deal with the above submissions and also find it convenient to start with A4 and his defence of alibi. This defence was projected to the Crown witnesses during their cross-examination. To illustrate his point, Mr. Mohau even put to P.W. 1 that her evidence on the identity of A4 is false for the reason that at the P.E., she stated that she did not identify any of the assailants on that day as she was scared yet in her testimony before this Court she stated unequivocally that all the four accused were present which shows that her evidence cannot be trusted in so far as the identity of A4 goes.
Counsel for A4 also suggested to P.W.3 that at the P.E. he mentioned the names of the people whom he said he had identified at the scene and that
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none of them carried the name of Mahola Rasehloho in response to which the witness said he did not recall. Although this witness was adamant that this accused was present on that day, it is my opinion that I have to consider this factor in conjunction with the fact that indeed at the P.E. he like P.W.I made no mention of A4's name.
In addition, I also take into account the fact that A4 told this Court from the onset as it was put to all the Crown witnesses that he had been send on an errand early that day and thus could not have been present at the scene. When considering a similar issue in the case of R v Biya 1952 (4) 514 at 521 the Appellate Division stated that:-
"If there is evidence of an accused person's presence at a place and at a time makes it impossible for him to have committed the crime charged, then if on all the evidence there is reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime. "
In addition, as Mr. Mohau correctly pointed out, A4 was not cross-examined at all with regard to his evidence to wit, he had been
sent to report the death of his brother in Berea. While I am aware that failure to cross-examine does not per se preclude the other
party from disputing the truthfulness of the evidence, authorities abound that such failure especially on the part of the prosecution,
may be decisive in determining the accused's guilt. See for instance, Hoffman & Zeffert (supra) pp356-357 quoted to this Court.
Admittedly, this factor cannot be considered on its own but against the evidence placed before the Court.
Bearing this particular factor in mind, I find that when the totality of the evidence is taken into account, including the inconsistencies of the Crown
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witnesses' testimony with regard to the presence of A4 at the scene, the fact that his alibi was not tested and/or shaken, and that his explanation is reasonably possibly true, the crown has not successfully discharged its onus of disproving A4's defence of alibi. I accordingly find him not guilty and discharge him. Accused 4 is free to go home.
I turn now to deal with the case against the first three accused. On the submission regarding that only four accused are charged despite the allegations that there were about twenty, it is my view that whilst this might be so, it does not really assist the Court as far as determining the veracity of the evidence that has been placed before it with regard to the accused' alleged participation herein. In my view, the assumptions made by Counsel based on this factor as stated above, are equally not helpful for the determination of the guilt or otherwise of the accused.
The same applies with regard to the issue of absence of accomplice evidence. I cannot make considerations based on what has not been placed before this Court which I might add may not even have existed, but will only confine my findings to the evidence that was adduced before me.
I have already stated that P.W.3 testified that he saw all the accused amongst the group of persons that attacked and shot dead the deceased herein. Whereas P.W.4's evidence was that he recognized only one of them namely, Accused No.3 who I have already shown has since passed on.
P.W. 1 also testified that she also saw all of the accused as part of the group on that day. I have however shown that at the P.E. she told the Magistrate in
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no uncertain terms that she did not look at or identify any of the attackers on that morning because she was very scared. I might add that against this backdrop, I have no doubt in mind that indeed this witness was scared by such a harrowing occurrence. It is only natural for a normal person to be scared by watching loved ones being chased and mowed down with firearms right in front of her eyes.
I therefore find it difficult to accept her testimony that more than ten (10) years later, she can now state with clarity the identity of the attackers. Her evidence at the P.E. was not that she had forgotten the names, but that she neither looked at nor identified
even a single one of them. I have also shown that whilst her evidence corroborates that of the other witnesses in so far as the shooting and chasing of the deceased is concerned, it unfortunately is not helpful in so far as the identity of the attackers is. I therefore find this part of her evidence very doubtful and I accordingly reject it.
Coming back to the evidence of P.W.3, it was put to him during cross-examination that these accused will deny that they were among
the assailants. P.W.3 insisted that they were present although he did say he could not recall what they were wearing. Further, unlike P.W.I, it was never suggested that at the P.E. he did not identify the said accused. In my view, this witness remained unshaken on the issue of the identity of these accused and I have no reason not to accept it as true.
P.W.4 in turn testified that of all the accused before this Court, he was only able to recognize Accused No.3. He therefore corroborated P.W.3 in so far as the identity and presence of this particular accused go. Needless to
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mention, this part of the evidence has since been overtaken by events for the reason that accused 3 died during this trial.
In their defence, the accused told the Court that they were not at the scene on that particular day but only went there after the incident had already taken place. However, I must also point out that this defence was never suggested to the Crown witnesses during their cross-examination and the Court did not get the opportunity to hear what their response would be in this regard.
Instead, what was put to them, especially to P.W.2, was that the accused would say that it was not true that there were many gun reports at the place and that the shells that were found there if any, belonged to the deceased. Considering that the accused told the Court that they were absent during the incident, I find this suggestion not only baffling but very self-incriminating.
This is because in my opinion, a person who was definitely not at the scene at the time of the incident cannot make such bold suggestions unless of course he wishes to dispute the evidence on the basis of his own personal knowledge. In my opinion, by suggesting this to the Crown witnesses, the accused placed themselves at the scene of crime. Obviously, this factor contradicts their evidence that they were never at the scene at the time of the incident.
When I take all these factors into account, I have no doubt in my mind that the explanation that the accused gave this Court is not only highly improbable but is as a matter of fact, palpably false. I accordingly reject it.
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This brings me to the question of whether or not, by their presence thereat, the accused acted with a common purpose with Makhoathi and the others to murder the deceased herein. Common purpose has been dealt with in several authorities both in Lesotho and in South Africa. The Courts have also laid down several guidelines that should be taken into account in making a determination whether or not accused persons can be found to have acted with a common purpose.
Common purpose in its very basic sense denotes the existence of an agreement to carry out a particular act. In the case of S v Shaik and Others 1983 (4) SA 57 the Court stated that, 'that there was such agreement must be inferred from the facts....' Further, in the case of S v Sefatsa and Others 1988 (1) SA 868 quoted with approval in S v Mgedezi and Others 1989 (1) SA 686, the Court laid down the factors to be present in determining whether the accused acted in concert or associated himself with the unlawful actions of others as being that:-
He must have been present at the scene where the violence was being committed;
He must have been aware of the assault of the victim(s);
He must have intended to make common cause with those who were actually perpetrating the assault;
He must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of
association with the conduct of the others.
He must have had the requisite mens rea in respect of the killing of the deceased i.e. he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.
Further, in the Sefatsa case (supra) it was stated that:-
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"The principle applicable in cases of murder when there is shown to have been a common purpose is that the act of one participant in causing the death of the deceased is imputed, as a matter of law, to the other participants (provided, of course, that the necessary mens rea is present). A causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants."
Coming back to the case at hand, the Crown witnesses' evidence in this regard was that the group of people that entered the premises of the deceased Thabo, were amongst other things, egging on Makhoathi to shoot. The evidence further revealed that it was only A3's sister who tried to intervene by holding on to him in an attempt to try to stop him from taking part in the attack.
Otherwise, the rest of the evidence shows that the whole group was there to see that the deceased were shot and killed. A voice was allegedly also heard encouraging the assailants to go and kill the women after they had finished with the men. Applying the above considerations to this scenario it is my opinion that all these facts lead to one conclusion, viz, even if not all the assailants were armed with pistols and/or pulled the trigger, they had all gone to the deceased's home with a common purpose, being to murder them.
I am saying this fully cognizant of the fact that the Crown's cross-examination of the accused person was very scanty if not downright poor to the extent that it did nothing to shake their story that they were not at the scene. It should however be recalled that
the other factors which I have
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already mentioned above established beyond any reasonable doubt, their presence and participation at the scene.
Finally, while I am aware that the Crown's evidence did not establish active participation on their part in the sense of them having been seen pulling the trigger, it has in my view successfully established their presence and that of the above five factors as stated in the Sefatsa Case (Supra) and other authorities referred to therein, which all lead me to the conclusion that they acted in concert and with the common purpose to kill the deceased.
Lastly, though as it was correctly submitted by both the defence Counsel that failure by the Crown to hand in exhibits as part of the evidence or to call any of the investigating officers to come and testify herein was suspect, under the prevalent circumstances herein, this in my view was not fatal to the case of the Crown for the reason that it was never denied that the two deceased persons were shot and killed on that fateful day. Things might have been different if the defence was challenging the fact of the murder and the type of weapon that was allegedly used.
The defence never challenged the issue of the alleged murder weapon(s) save to state that the accused herein did not participate in the incident and that A4 was nowhere near the scene on that fateful morning. In my opinion, despite of these shortcomings, the Crown ably discharged its onus of proof beyond any reasonable doubt For all the above reasons, I find Al and A2 guilty of murder with extenuating circumstances in that, whilst self-help is not and can never be
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justifiable, in certain cases such as in casu, it can lessen the blameworthiness of the accused. Secondly, it is obvious from the evidence that the group had basically accompanied Makhoathi to carry out an act of revenge as can be deduced from the fact that they encouraged him to shoot the deceased and also congratulated him after the incident. It should be remembered that the evidence has established that the deceased Thabo was notorious for being a cruel and murderous individual.
In addition, this Court believes on the basis of the evidence before it that the rest of the group were not really appreciative of the fact that encouraging, accompanying and giving chase to a quarry who is about to be murdered by another, is the same as carrying out the act by oneself. Certainly ignorantia juris non-excusat, but in some cases, it can be considered as a mitigating factor.
SENTENCE
In considering what in my opinion would be the most appropriate punishment in this matter I have taken the following factors into
consideration on the one hand; that this matter is very old with the result that the remaining two accused have to bear the brunt of the fault of all the others, especially Makhoathi whom evidence established as having been the main culprit; that the accused are first offenders who were at a tender age (in their early twenties) at the time of the incident and have since married with children and several dependants; that their participation was more in the form of encouraging and ensuring that Makhoathi carried out his intention to murder the deceased; that the accused have since the beginning of this case attended their remands and trial faithfully and that the deceased
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Thabo's character and his relations with the other members of the community was that of a bully thus creating a sense of bitterness in some of them. Over and above all these, this case has been hanging above the heads of the accused for almost thirteen (13) years.
On the other hand, I have also considered that the at the time of the murder, there was no form of provocation on the part of the deceased and that the mob came very early in the morning and found the family going on with its business, not to mention that it is not even clear what gripe they had against Lefu who was also murdered on that day, and that members of their families witnessed and suffered a great loss in both deaths. Further, that murder is a capital offence and the right to life is sacrosanct and should be promoted and protected by everyone especially the Court, at all costs.
Lastly, that while it is incumbent upon any Court to mete out punishment that is both exemplary and deterrent in nature, every case has to be dealt with according to its peculiar circumstances and factors.
I accordingly find that the appropriate sentence herein would be that of imprisonment for a period of three (3) years. I accordingly so sentence them.
N. MAJARA
JUDGE
For Al and A2 : Mr. K. Lesuthu
For A4 : Mr. K. Mohau
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