HIGH COURT OF LESOTHO
by the Honourable Madam Justice N. Majara on the 21st December 2007
6th day of September 2007, the accused appeared before this Court on
a charge of murder. In terms of the indictment, on or
about the 20th
April 1999 and at or near Litsuming in the district of Maseru, he
unlawfully and intentionally killed one Phoka
Mohajane. He pleaded
not guilty to the charge. I might also mention at the onset that the
accused was initially charged with another,
Teele who failed to show
up on several dates of hearing, resulting with several postponements
of the case until the Crown moved
an application for a separation of
trials in terms of Section 170 of the Criminal Procedure and Evidence
Act 1981. The Court duly
granted the application.
called three (3) witnesses to take the stand to prove its case. The
first witness was the deceased's father, Mafa Mohajane,
that on the day in question he received information that his son had
been arrested by the accused and Teele Mohajane
on suspicion that he
had stolen a goat belonging to one Lekula Phatsoane (DW2).
the Court that he went to Lekula's place together with PW2 Koetje
Mohajane and some other men to inquire from Lekula as
actually happened to the deceased. Soon after they arrived thereat,
the accused and Teele arrived and reported to Lekula
that they had
arrested the deceased and tied him up because he had stolen Lekula's
goat and that they had left him at the cattle-post
because he had
refused to walk.
that he asked the accused to take them along to show them where the
deceased was and that they all followed the accused
who led the way.
While they were on the way, the accused and Teele walked faster
leaving the rest of the group behind. However,
PW3 kept the same pace
as them until they disappeared out of sight.
his further testimony that when they later arrived at the place, the
accused and Teele were no longer there and PW3 was waiting
dead body of the deceased all by himself.
that PW3 reported to them that after they had unbound the deceased,
the accused had left the scene saying that they were
afraid that they
might be injured by the men coming behind. He further told the Court
that he observed a track of flattened grass
which he believed was
where the deceased had been dragged and that he also noticed pieces
of broken sticks close-by.
one Koetje Mohajane and he basically gave the same testimony as PW1
concerning the report that the accused allegedly gave
at DW2's place,
the journey to the cattle-post and the fact of the accused and Teele
walking faster and leaving the rest of the
team behind, as well as
that of the deceased being found dead and pieces of broken sticks
being seen thereat.
Ntsane Liketso told the Court that he did not know the deceased and
his parents but that he was present when PW1, PW2 and other
arrived at Lekula's place and the accused arrived and reported that
they had arrested the deceased as a result of their suspecting
have stolen a goat. He confirmed what PW1 and PW2 said happened on
the way to the scene. He went on to state that when they
the place where the deceased was, he saw him lying down with his
hands tied with a rope and that the accused and Teele
took the rope with them saying that they were afraid of the group
that was coming behind.
Crown witness all testified that the body of the deceased was guarded
for the whole night in the absence of the accused
persons until the
morning when the police arrived.
post-mortem report was read into the record to form part of the
evidence by consent with the defence. It reveals that death
to rupture of the trachea and contusion of the left lower lobe and
the doctor's remarks are that the deceased had multiple
echymoses all over the body.
close of the Crown's case the accused elected to take the witness
stand and testified in his defence. He also called a witness
happens to be his employer, Lekula. The accused's evidence was to the
effect that at the time of the incident, he and
Teele Mohajane were
at their respective but neighbouring cattle-posts. He stated that
whilst there, they were attacked by stock-thieves,
a group of about
ten (10) people, who were also shooting at the posts. That he called
out to Teele and the deceased as he was running
and the latter joined him on the way home.
that upon arrival at DW2's place they narrated what had happened with
regard to the alleged attack. Later on, PW1 and the
and he angrily asked them what they had done with his son and they
told him the same story and stated that they
did not know where the
deceased was. He added that P.W.I told them to go and show them where
they had left his son and they led
the way to the cattle-post.
to the accused, as they were going along, PW1 was threatening them
and that is when they decided to walk faster. It was
testimony that on the way, they were joined by PW3. When they got to
the river they searched for the deceased and after
a while found him
lying down with his hands tied behind his back. They untied him as
they thought he was still alive. Upon realizing
that he was dead,
they fled for their lives in fear of reprisal from the group that was
accused further told the Court that they ran away from the village
and sought refuge at the Maseru Police Station where they
the matter. After a few days they were taken to prison, were later
released on bail and went back home. They then learned
deceased was dead.
Lekula Phatsoane confirmed the accused's evidence with regard to the
report about the attack on the cattle-posts by
He also testified that upon realizing that P.W.I was angry after he
had arrived at his place to inquire about his
son, he went to report
the matter to the chief while PW1 and others demanded that they
should go with the accused to look for the
witness further told the Court that he reported his missing stock to
the chief but to date nothing has happened and that unfortunately
that particular chief has since passed away. He stated further that
he did not go to the cattle post with the others and that the
and Teele returned late in the night and it was on his advice that
they went to report the matter at the Maseru Police
that it was his son who paid their bail deposit.
the defence's version is that accused and Teele did not arrest and
tie up the deceased nor did they assault him on suspicion
that he had
stolen a goat. Further that, the deceased must have been beaten up by
the stock-thieves who had attacked the cattle-post.
denies that they ever reported that they had tied up the deceased for
stealing a goat upon their arrival at DW2's
proceed to analyse the evidence before this Court.
crown witnesses were cross-examined by the defence Counsel with the
projected defence being that it was a lie that the accused
ever confessed to them to having arrested and tying up the deceased
but that instead they had reported that they had
been attacked by
stock thieves at the cattle-post and had fled for their lives.
witnesses however remained unshaken in their evidence regarding the
report the accused and his companion made at DW2's place.
submissions, Mr. Tsenoli made the contention that the Crown witnesses
contradicted themselves on material facts especially
each of them said in their evidence with regard to the alleged
confession by the accused and Teele.
do not accept this submission for the reason that the witnesses
corroborated each other on all the material aspects of
The only difference is that only two of them mentioned that accused
and Teele said the deceased had refused to walk
and had thrown
himself down. Other than that, their evidence was congruent in so far
as the alleged report on the arrest and the
tying up of the deceased,
as well as their having been led to the place where he was found dead
it is my view that the fact that P.W.I and P.W.2 did not mention
PW3's presence at the house of DW2 is not material since
testified that he was with the group that went out to the cattle-post
and was the one who kept up with the accused and
Teele until they got
to where the deceased was.
rate, it stands to reason that in the normal course of things,
witnesses can never give the same testimony word for word as
evidence was rehearsed. Otherwise it is that very fact that might
raise some doubts on the truthfulness of their evidence.
find it apposite to mention that I carefully observed all the
witnesses whilst they were on the stand. In my opinion, all
crown witnesses struck me as trustworthy since their demeanour was by
and large without question. They also stuck to
their evidence from
the beginning to the end without wavering or being evasive even under
cross-examination. It is my view that
they were undoubtedly credible.
evidence that the accused and Teele untied the deceased and fled is
also common cause. It is also my opinion that this particular
actually proof that the reason that they untied him was that they
were the ones who had tied him up
first place hence their taking with them the rope that had tied him.
They really had no business tampering with the body
of a deceased
person who per the version of the defence was murdered by unknown
stock-thieves. Their conduct in this regard was
regard to the version of the defence, it is my opinion that both the
accused and his witness were very poor and unimpressive
might also mention that this is so despite the fact that DW2 is a
very senior citizen. He testified that he was born
in 1921 which
makes him about 86 years of age.
with the accused, it is my opinion that his demeanour was very
suspect, not to mention that his evidence was full of material
contradictions. First of all, he testified in his evidence in chief
that he became aware of the attack when he heard gun reports
it was dark and he could not see his attackers before he called out
to the others. Under cross-examination his evidence
improved to the
effect that he actually saw the alleged attackers and there were
about ten (10) of them.
his explanation on why they untied the deceased after they had left
the other people behind oscillated a great deal. To
point, in his evidence in chief, he told the
that they acted in that manner because they saw that the deceased was
already dead. Under cross-examination he changed and
deceased seemed to be still alive, yet when asked the same question
by one of the assessors he reverted back to the initial
they saw that the deceased was already dead.
above this, the accused testified that after the incident they ran
away from their home village fearing for their lives
and came to
Maseru where they were placed in protective custody by the police at
the charge office and then eventually were transferred
to the Central
Prison. He also testified under oath that they were never given any
charge as they were merely in protective custody
but were later
released on bail. Needless to mention, this is absurdity at it worst.
I will not even waste time analyzing this
part of the evidence.
Suffice it for me to say that it just goes to show the type of a
witness the accused was before this Court.
regard to DW2, it was put to him during cross-examination that in his
sworn statement he had given the same version as that
of the three
crown witnesses, mainly that the accused and Teele had reported that
they had arrested the deceased and tied him up
and had left him
because he refused to walk. While he admitted that he did give a
police he however denied all the contents thereof as well as the
signature that appeared at the end.
point, Mr. Tsenoli made the submission that it was imperative on the
Crown to have called an independent witness to testify
on the issue
of the signature. I however am of the view that despite this not
having been done, the contents of the statement made
police were in fact his. He simply no longer wanted to associate
himself with them for reasons best known to him. I
however am of the
view that he wanted to protect the accused who was at all material
times his herd-boy. Clearly the initial shock
that made him give the
said statements had since worn off with the passage of time.
illustrate my point, the manner in which he responded to some of the
questions suggested that he was bent on denying the contents
statement at all costs. For instance he replied as follows to a
couple of the questions that were put to him by Ms Mofilikoane:-
Q. Did you make any statement to the police?
A. I did.
Q. I do have your statement with me now. A. If it is not lies.
for anyone to suggest that what is contained in his own statement
might be lies even before he is referred to the contents
thereof is a
clear indication that he too readily wanted to distance himself from
it and it is my opinion that it is because he
knew that the two
versions were totally contradictory of each other and cast serious
doubt on his credibility.
found him to be a very incredible witness despite his age. For
instance, he was very evasive when answering damning questions
against the accused. He was also too eager to confirm the accused's
story regarding the alleged attack to the extent of alleging
horses were stolen during the raid. Yet what is surprising is that it
was his evidence that all the witnesses who could
corroborate this evidence have died.
this is possible regarding the time it took for this case to be
prosecuted, it is the manner in which he too readily suggested
everyone was dead who could back him up including on the evidence of
the spent bullets that were allegedly found at the scene
nameless person, that strengthens my view that he was telling
the issue of the bullets only came up for the first time in DW2's
evidence and I found it very surprising that none of
people who arrived at the scene first ever made any mention of seeing
them nor was this fact ever suggested to them while they
were in the
witness box. Even the accused never talked about any spent shells.
as it may, even if this Court were to believe that they were indeed
found the next day during daylight, it is surprising
that none of the
people who were there was called to testify in this regard nor were
they ever taken to the police. I do not even
want to go into the fact
of why it was allegedly a nameless boy who picked them up from the
scene in the absence of any other person
with the natural result that
DW.2 is the only living person who knows and/or ever saw them.
while he was in the box, I formed the opinion that D.W.2 was a biased
witness and had every reason to want to confirm
version. This is to the extent that he kept changing his version
insofar as the fact that PW3 did go with the group
to the scene is
concerned. It is also worthy to note that he also told the Court that
it was his son who bailed the accused and
Teele out of prison which
is another pointer that he has in interest in the accused being found
innocent at all costs.
leave this point without mentioning DW2's conduct while he was on the
stand. Every time he was faced with a
difficult question from the Crown Counsel, he would go into some
litany on why the proceedings were conducted in English
in Court was a Mosotho. He did this several times despite the fact
that when he initially posed this question, and
a couple of times
thereafter, the Court patiently explained to him how and why court
proceedings were conducted in English. Otherwise,
when the questions
were easier, he was more than happy to answer them with the
assistance of the Court Interpreter.
these reasons I find that the evidence of the defence is not only
highly improbable but is false beyond doubt and I accordingly
is now left with the question of determining whether it was the
accused and Teele who murdered the deceased. In the absence
evidence from eyewitnesses, it has to rely on the evidence before it
which is mostly circumstantial. In the case of Rex
v Blom 1939 AD 188
quoted to this Court, the position that was laid down when dealing
with this type of evidence is that the Court
can draw an inference
from it. To that extent the learned Watermeyer J.A. stated as follows
in his judgment at p 202:-
"(1) The inference sought to be drawn must be consistent with
all the proved facts. If it is not, the inference cannot be
proved facts should be such that they exclude every reasonable
inference from them save the one
sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn is correct"
the above test to the facts in casu, it is my opinion that both two
cardinal rules have been satisfied for the following
accused reported in the presence of the Crown witnesses and D.W.2
that they had arrested the deceased and tied him
up. When leading the
way to the scene, they increased their pace so that they arrived
there before anyone else but for P.W.3 and
upon arrival thereat, they
untied the deceased and fled the scene. This conduct on their part
was very damning and clearly showed
a guilty conscience.
addition, the fact that when found, the deceased was indeed tied up
strengthens the Crown's evidence that the accused and his
reported that they had arrested and tied him up. This was certainly
no coincidence at all.
mortem report also showed that death was due to rupture of the
trachea and contusion of the left lower lobe and the doctor's
are that he had multiple bruises and echymoses all over the body.
These wounds do not tally with gunshots at all but rather
whipping or severe blows with blunt objects such as sticks and there
is unchallenged evidence before this Court that there
pieces of sticks found at the scene.
this Court were to believe that there were ever any stock thieves at
the cattle-post who also stole DW2's horses as the
defence would want
us to believe, they had no business wasting time beating up one young
man, tying him up and dragging him for
some distance especially, when
he was not even manning the cattle-post where the alleged theft
occurred, instead of making a quick
getaway as logic dictates.
facts lead this Court to draw one inference to the exclusion of any
other and that is, the accused and Teele indeed arrested
deceased, tied him up and belaboured him with the sticks whose broken
bits were found at the scene and the poor boy died from
injuries. Indeed the two cases of Rex v Patekile Tshoba 1999-2001 LLR
931 and Rex v De Villiers AD 493 respectively quoted
to this Court by
the defence Counsel are on all fours with the test laid down in
Blom's Case (supra).
not repeat the quoted passages in this judgment. Suffice it for me to
say in my opinion they support this, my finding.
these reasons, I find that the Crown has discharged its onus of
proving its case beyond a reasonable doubt and I accordingly
accused guilty as charged.
find presenting some extenuating circumstances and they are as
years ago when he committed this crime, accused was still a young man
of tender age. He is also un-alphabetic and lacks the
that normally comes with some form of education. All he knows and is
familiar with is life at the cattle-post where
arguments are usually resolved with fights. While admittedly the
weapons used can be lethal, they have on many other
used on others without necessarily resulting in fatal consequences as
it happened in this case.
considering sentence, the Court took into account all the mitigating
factors that were pleaded on behalf of the accused by
Counsel to wit, that the accused immediately went home to report the
matter and also led the witnesses and others to
where the deceased
was which was a sign of contrition on their part.
addition, this case has been hanging on his head for about eight (8)
years and if he had been timely prosecuted as justice dictates,
would probably be nearing the end of his jail term.
the accused stood his trial to its finality and has no previous
other hand, the Court has the duty to discourage and punish offenders
as well as to deter others from committing crime and
as such, needs
to strike a proper balance between the accused' interests and those
of the deceased, his family, friends and dependants
as well as those
of the community at large and alive to these factors, I proceeded to
also take into account the following:-
murder is a capital offence that derogates from the right to life and
the sanctity of human life. There is also a growing culture
violence towards others where they are assaulted with impunity
without due regard to the possible and usually fatal consequences,
which culture should not be encouraged let alone tolerated.
this Court should be wary not to send out the wrong message to the
public that it is alright to act violently towards and/or
and that as long as one shows that he is remorseful, he will get off
lightly. While indeed the accused has a wife and
dependants, at least
he will still be able to see them during his time in jail and after
he has completed his sentence when unfortunately
the same cannot be
said with regard to the deceased.
addition, it is my view that having family and dependants should not
be used as a reason for us not to be punished because we
loved ones but we have to pay for our misdeeds no matter how painful
this might be to them or how negatively it might
I find that the appropriate punishment would be for the accused to be
sent to prison for a period of three (3) years
and I so sentence him.
crown : Ms Mofilikoane
defence : Mr. Tsenoli
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