1

CRI/T/27/95

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

vs

LEMENA
LEBUSA

JUDGMENT

Delivered
by the Hon. Mr Justice ML Lehohla on the 15th day of May. 2000.

The
accused is charged with murder; it being alleged by the Crown that
upon or about 14th May, 1988 and at/or near Ha Jopo in the Mohale's
Hoek district he did unlawfully and intentionally kill Nako Selone.

To this
charge the accused pleaded not guilty.

As the
indictment indicates this is a very old case that took simply too
long before trial.

2

It is
unacceptable that a Preparatory Examination record which appears to
have been completed on 9th November, 1988 incurred such a long delay
to be typed that the typed scripts only reached the Registrar's
office on 2nd August, 1995. It is equally unacceptable that after all
such delay a further delay was incurred in the Registrar's office
with the result that the accused had his first appearance before this
Court only on 26th November, 1999 when because of sloppiness in the
service of subpoenae for witnesses the case was called just for
mention before it could definitely take off on 22nd March, 2000.

In an
attempt to shorten proceedings the defence admitted the depositions
of the following witnesses who testified at the Preparatory
Examination of this matter in the Court below :

PW6
Mokheseng Selone

PW7
Detective Trooper Lepheane

PW8 Dr W
E Nolting

Further
admission was made in respect of PW5 Moqibi Ntilo's evidence. The
admission was in terms of the Criminal Procedure and Evidence At 7 of
1981 section

227.

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The
admissions were accepted by the Crown and read into the recording
machine and thus made part of the proceedings before this Court.
Needless to say the post-mortem report was handed in and marked
Exhibit "A".

In terms
of Dr Nolting's post-mortem report death could have occurred on 15th
May, 1988. This doctor established the cause of death as severe
haemorrhage from the stomach and intestines caused by piercing
wounds. The doctor indicates that his findings are consistent with
the report that he received that the deceased had been stabbed.

The
external appearances are described by Dr Nolting as being of a man
with swollen body and loose skin and blisters all over. He attributes
this phenomenon to freezing, possibly the result of refrigeration in
a funeral parlour.

The
doctor further observed what he describes as omentum coming through
the wound in the abdomen. He observed one wound on the back and one
wound on the right hip as reflected in the diagram attached to
Exhibit "A". The diagram reflects at (1) a four centimetre
long wound caused by a sharp object. The omentum majus

4

hanging
out. At (2) is reflected a two centimetre long would caused by a
sharp object. The would is described as very deep. At (3) is
described a small wound that is not deep but which goes to the bone.

PW5's
admitted evidence shows that his home is at Ha Jopo and that on the
evening of that day a concert was taking place in a hall in that
village. PW5 was present at that concert. He had occasion to leave
for his homestead but on turning back to the concert hall he found
the deceased fallen inside the concert hall. PW5 saw the wound on the
deceased's belly and sought the help of women to hand over a doek
with which PW5 attempted to tie the belly with a view to staunching
the bleeding.

PW5 said
the chief arrived and ordered men to look for the culprits in the
act. The accused who later was charged as accused 1 along with
another came to the concert hall after thus being rounded up with
PW2. The accused i.e. Lemena Lebusa according to PW5 confessed to the
stabbing of the deceased. The deceased also was rueful that Talasi
had joined in the chase after him otherwise he said he would have
"outdone" people who had set after him.

5

PW6 also
resides at Ha Jopo. He is the elder brother of the deceased. He was
sent for in the night when his brother was said to have sustained
serious injuries. PW6 saw for himself when he arrived at the concert
hall that the deceased was stabbed. PW6 and others asked who had
stabbed the deceased the deceased replied that "it was Lemena,
he was with Khatampi and Mongoli". The deceased could still
speak then.

However
attempts to rush him up for medical attention were foiled by the fact
that he died along the way. According to PW6 the deceased had
intimated to him shortly before he died that he was tired and had
preferred being taken back home. His actual words, uttered shortly
before he died and while he was carried on a ladder intended to
convey him to a vehicle some distance away were "I am finished"
and he died. The body was conveyed to the doctor who performed the
post-mortem examination.

PW7 a
police officer attached to the CID at Qacha's Nek testified at
Preparatory Examination that on 16th May 1988 he was at Ha Sekake. He
knew the accused. On that day the accused was with his relatives at
Ha Sekake.

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PW7
examined the body of the deceased in the presence of the accused. PW7
observed the wounds which have been referred to earlier. He
accordingly cautioned the accused and gave him a charge of murder.
PW7 conveyed the body along with the accused to Qacha's Nek. The body
of the deceased sustained no further injuries during the conveyance
between Ha Sekake and Qacha's Nek.

The oral
evidence of witnesses led was first, though for a very brief period,
preluded by that of PW2 Mongoli Lebusa whose evidence had to stop
because the witness was hungry and had not had meals in the morning
of the trial. Thus he had to step down and the Court heard the
evidence of PW1 Mampolai Sechaba.

PW1 and
the deceased were lovers. PW1 knew the accused too because the
accused's brother is married to PW1's sister. PW1 stays at Ha Mabatho
village which is far from that of the accused and his sister-in-law.
PW1 testified that she could neither read nor write.

Moreover
on the day of the concert she had come on a visit to her sister's
home at Ha Jopo.

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In the
evening she and her lover i.e. the deceased were at the concert
enjoying the entertainment offered there.

PW1
accepted his sister's offer to put up with his lover in one of the
huts at her sister's seeing that PW1 's attempts to get accommodation
elsewhere for the night was meeting with failure. The sister's offer
appeared even the more welcome because the husband of PW1's sister
was away in the mines in Johannesburg at the time.

PW1 and
her lover accordingly repaired to the hut prepared for their
accommodation for the night after the exhausting stay at the concert
hall.

The night
proved uncomfortable because the accused came knocking at the door
and making what to me appears to be making a nuisance of himself.
Asked who it was by PW1 the accused replied "Lemena".

The
occupants of the hut did not open the door for him. He threatened to
break the door. Asked why he would break the door he replied by
posing a counter question namely why PW1 would not open the door. To
this she said she wouldn't open the door because she was sleeping.
This in turn led to the question posed by the

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accused
"with whom are you sleeping". Told that PW1 was sleeping
with the deceased the accused is said to have said "if you are
sleeping with Nako in this house open and I am going to slaughter him
like a goat". Asked why the accused would do that he vouchsafed
PW1 no reply. Apparently the accused was incensed by the idea of the
deceased sleeping with a woman at his relative's house.

The
accused then with the assistance of others including Talasi the
deceased's relative started raining stones at the door of this hut
which the Court was told did not have any windows.

PW1
suggested to the accused to go and ask his sister-in-law to open the
door but he declined to take this suggestion and instead worked
himself up into a fury of a man who was frantically preoccupied with
hurling stones at the door of the hut in which PW1 and the deceased
found themselves entrapped.

Khatampi
who at one stage was Lemena's co-accused was heard to say aloud "if
there are Mookho i.e. PW1 (her maiden name) and Nako in there kill
them both so that the case could have no evidence".

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PW1 told
the Court that when the deceased heard the voice of PW3 Talasi
outside he said "oh you Talasi my brother and you Tanki (PW4)
you are in that group. Am I to be killed in your presence".

Apparently
in a vain attempt to make believe that Talasi was absent the accused
mocked at the deceased and asked "do you think Talasi is outside
here".

If I may
pause here, it appears that a concerted effort was being made to
obscure the identity of people who had joined ranks with the accused
to assail the deceased. The accused's identity could not be foiled
because he had the undisguised motive to object to the couple
unmarried to each other sleeping together at his brother's place in
the latter's absence.

The
accused was heard by the entrapped couple to call to Mongoli the
accused's brother's son and order him to go to the lower house to
fetch a spear. It is PW1's evidence that Mongoli managed to bring the
spear along because on his return Mongoli was heard to say to the
accused "here it is". In any event PW2 Mongoli himself in
turn corroborates PW1's evidence on this very important aspect of the
matter.

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Be that
as it may it was during the course of this torment and sheer terror
instilled into the deceased and PW1 that the deceased while thus
entrapped inside realising that the door was about to give in, asked
PW1 to blow off the lamp. He thus made good his escape from the hut
aided by darkness inside there. But the moon is said to have been
shining outside.

When PW1
went outside everybody had cleared from the premises. She testified
that when the deceased fled from the hut the group outside chased
him. She, on getting outside, ran away.

She
didn't know what direction the chase took. She came to see the
deceased later in the concert hall that night. He was wounded. He was
already bandaged but PW1 could see blood seeping through the bandage
made out of a doek.

Of
importance is that in that concert hall PW1 saw the accused, PW2 and
PW3 and others. However she didn't hear if the accused said anything.

PW1 heard
the deceased relate the events of the night, including the incident
that led to his injury, to his brother PW6.

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Under
cross-examination PW1 was reminded that at Preparatory Examination
she did not tell the Magistrate that she met with the accused in the
concert hall when deceased was already injured. I don't think much
should turn on this omission because it is a fact that the Chief had
called for all those who had earlier been to the concert to reconvene
at the concert hall where the deceased lay injured. Both PW1 and the
accused had earlier been to the concert.

It was
put to PW1 that accused was not in the concert hall at the time PW1
was relating her story to the gathering. She insisted he was. PW1
denied that when the accused came and knocked at the door where PW1
and the deceased were sleeping someone who was in there knocked him
on the head. I accept PW1's denial and reject the suggestion that
anyone who was in that hut hit the accused on the head. I reject also
the suggestion that is a sequel to this bizarre invention that had it
not been for that assault he would not have had cause to fight with
the deceased.

I am not
able to look with favour or accept the suggestion that Khatampi
retrieved the spear from the accused. His failure to give evidence to
give explanation regarding things he is said to have done cannot be
explained away by questions put to Crown witnesses that the accused
was not concerned that the deceased was sleeping

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with PW1
as PW1 is not the wife or concubine of the accused. Nor can it avail
the accused that because Khatampi had made unsavoury suggestions
about eliminating the entrapped couple then he must have been the one
who wielded the spear with which the deceased was stabbed.

I
therefore accept as satisfactory the evidence of PW1 on essential
aspects of the charge preferred against the accused.

PW2 after
being recalled proceeded and informed the Court that the accused is
his uncle. PW2 is the son of the woman who invited PW1 and her lover
to put up at her home.

PW2 did
not know the deceased. PW2 heard of the description of the deceased
from PW5 and others during day time. The description made coincided
with what PW2 perceived of the deceased later. PW2 was at the concert
which had taken place at Mantsieng's place. This was during the
night. It was during this concert that PW2 fell asleep and was
awakened by a girl who indicated that people were breaking PW2's
parental home. PW2 accordingly went to find out what was happening. I
should indicate that PW2 at the time was aged between 12 and
thirteen. He ran to his house

13

which is
only 100 metres away. On arrival at his home PW2 found that the door
had

already
been broken.

PW2
testified that on arrival at home he saw among people standing
outside his uncle Lemena the accused, Khatampi who was at one stage
accused 2 and PW4 Tanki Sello.

That PW2
mentioned that the accused Lemena was among people outside is quite
significant in view of what is alleged to have been his role in this
total episode. Indeed he said the three men he mentioned were
standing outside. He said the accused called him aside and told him
to go and fetch a spear. I am saying that this is quite significant
because a spear is a weapon that is associated with causing physical
harm or death. It is far-fetched and indeed inconceivable that a
close relative of the accused who even stayed with him could falsely
implicate the accused about the instruction he gave PW2 to fetch a
spear. In my view, the instruction to fetch a spear which was later
handed to the accused could not have been for any reason but, in the
context of what was prevailing, for purposes of causing harm.

PW2
indeed fetched the spear from his parental home where the accused was

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staying.
PW2 didn't know what the spear was going to be used for. Given his
age in 1988 (he was bom in 1975) he could not be blamed for not
inquiring what the spear was needed for. It is significant that on
being handed the spear the accused snatched it from PW2. This was at
the stage that PW2 saw many people come running after the one who was
running ahead. At this stage the accused was no longer at the house
where PW2 had left him when he first met him. The scene is clear that
the situation was one of feverish urgency on the part of the man who
snatched the spear from PW2 and joined in the chase.

This
witness got to realise that PW4 and Khatampi had joined the chase
because when the chasers returned and came upwards the two were
present.

On his
return from the chase the accused met with PW2 who had been lagging
behind during the chase. They walked side by side the accused still
holding the spear. The nearest PW2 was to the spear at any stage
during the return was a foot away. He noticed nothing on the spear.
But he says after a while during the chase he had heard the accused
say "I have stabbed him". A short distance away he had
heard Khatampi say "I have hit him". PW2 never asked who
these people were referring to. But to my mind, given that no other
man than the deceased had been stabbed or hit during the

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chase in
which the accused and Khatampi participated, I have no doubt that
reference

was being
made to the deceased. Thus I reject as totally baseless and therefore
unacceptable the suggestion that the words attributed to the accused
namely "I have stabbed him" were actually an inquiry by the
accused whether Khatampi had stabbed someone. I accept PW2's story
that the accused uttered the words "I have stabbed him".

PW2 said
on going home he joined Khatampi, the accused and PW4. He and the
accused made for PW2's parental home where they slept after partying
company with Khatampi and PW4.

PW2 and
the accused were called to the concert hall at early dawn where they
found the deceased lying on the ground with injuries.

Under
cross-examination PW2 stated that he didn't see the accused drink
that night. However he readily conceded that the accused had been
drinking at day time. PW2 denied that the accused when telling him to
go and fetch the spear had explained to this witness that someone in
the house had assaulted him and that this was why the accused wanted
to fight people who had assaulted him in there. Indeed this question

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lacks of
elementary canons of credibility. First, PW1 told the Court that she
and the deceased were the only people who were in that hut and that
they were sleeping. Next, nowhere did she suggest or concede that
anybody opened that door before it broke due to being pelted with
stones from outside. How then the accused could have been assaulted
by people in there in the circumstances defies all logic and indeed
escapes me. That PW2 a close relative of the accused dismisses this
suggestion as totally false strengthens the notion of ill-use put by
the accused to this spear. Be it remembered that PW2 said he wouldn't
want anything evil to befall the accused in this proceeding. Saying
so he satisfied me that he bears the accused no malice. Thus he is
not bent on getting his own back on him by falsely implicating him in
this trial.

The
flimsy suggestion that it is Khatampi who used this spear probably to
harm the deceased does not absolve the accused from liability for its
use because he is the one who ordered that it be fetched. PW2's
evidence on the issue is of crucial importance because he says when
making this order the accused was shouting in anger. No wonder then
that PW1 from inside the hut regarding the spear heard that order
which was laced with feverish urgency for its no doubt, immediate
use. I may even surmise that the accused because he and his company
had entrapped the deceased in there felt he could not risk the
deceased escaping in his absence were it to fall to his

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own lot
to fetch the spear he so earnestly needed, his nephew come to his aid
by

fetching
it.

PW2 in
re-examination denied that the accused asked Khatampi if Khatampi
"had stabbed him". I accept PW2's evidence in this respect
and accordingly reject the suggestion made to him on the score of
falsity. I may indicate that the evidence of PW2 as it stands is of
good quality, untainted with exaggerations or downright falsities. He
didn't seek falsely to put his uncle in bad light. He readily
indicated his ignorance of things alleged to have happened in his
absence even where these tended to conflict with his evidence. This
is where astute re-examination by a lawyer who is familiar with his
brief came to good use. On the whole PW2's evidence remained
unshaken. It is corroborated in material respects by that of PW1.

The
evidence of PW3 is not reliable insofar as he indicated that he had
been drinking too much on the day in question. I decide therefore to
overlook it in favour of credible evidence so far given. Moreover, I
think PW3's evidence is bedevilled by the fact that he wishes to
distance himself from events which put him among people who were in
the company of the accused pelting with stones the door to the hut
where PW1 and the deceased were sleeping. Not only so, but he was
seen among those who

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chased
the deceased after his escape from the hut and finally; though not
directly charged by the deceased with having assaulted him, he bears
the shameful responsibility of having sided with the deceased's
tormentors as a result of which the deceased denounced him as the man
whose acts made the deceased see no point in trying to save his life.
It should be remembered that PW3 is the deceased's cousin who
ordinarily should have tried to defend him instead of joining with
those who were bent on injuring and harming him.

The same
goes for PW4 who though not a relative of the deceased his evidence
is in sharp contrast with that of PW2 to the extent that PW4 said
that the deceased ran into the concert hall hotly pursued by the
accused. I am not going to make any use of the evidence which is
unreliable in some patent respects for fear that even where it
conforms with some aspects which are admissible there is always fear
for treating with favour some portions of such a witness's evidence
because of the uncertainty to know where the lies end and the truth
begins and vice-a-versa.

I take
solace in the statement of our criminal law that where there is prima
facie evidence of criminal liability at the end of the Crown case,
then if the defence closes its case, as in the instant matter without
leading any evidence, the prima facie

19

evidence
becomes conclusive.

Indeed
Mofokeng J in CRI/T/32/78 Rex vs Makhethe and 2 Others (unreported)
at p. 13 succinctly put the point across in the following words :

"It was argued that at the close of the Crown case there was
prima facie evidence on which a reasonable court might convict and
that when the defence closed its case without leading any evidence
whatsoever, the prima facie evidence became conclusive evidence. The
position as I understand it is this : at the close of the Crown case
but before the defence has closed its case the question to be decided
is : is there evidence against the accused on which a reasonable
court might find the accused guilty. But when the defence has closed
its case without leading evidence, the question to be decided is; has
the Crown established the charge beyond a reasonable doubt......."

In
CRI/T/1/92 Rex vs Masupha Seeiso (unreported) at p. 10 and delivered
on 3rd August 192 the Court had this to say :

"It does seem possible that generally speaking though at the end
of the Crown case it is found that an accused person has a case to
answer, if he in turn closes his case without leading evidence he
could be acquitted if it is found that the Crown has not discharged
the onus cast on it to furnish proof beyond a reasonable doubt that
an accused person is guilty. This might be a risky step for an
accused person to take for in a majority of cases the prima facie
case becomes conclusive as in such instances other considerations...
come into play including the accused's failure to discharge
evidential burden where it is shown to exist after the totality of
the evidence has been weighed".

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The
invaluable works of S.E. van der Merwe et al styled Evidence at page
417 provide a fund of pertinent material in a passage reading :

"The State will have established a prima facie case; an
evidential burden (or duty to adduce evidence to combat a prima facie
case made by his opponent.....) will have come into existence i.e. it
will have shifted, or been transferred, to the accused. In other
words, a risk of failure will have been cast upon him. The onus still
rests on the State, but, if the risk of losing is not to turn into
the actuality of losing, the accused will have the duty to adduce
evidence, if he wishes to be acquitted, so that, at the end of the
case, the Court is left with a reasonable doubt........."

The late
Moqibi indicated that the deceased stated that the accused had
stabbed him. PW1 and PW2 also said as much before this Court. Since
the accused came to the hall in company of PW2 then no reason can
impress on this Court why the accused could not have heard such words
uttered in his presence. His attempt to suggest through questions put
to Crown witnesses by his Counsel on his behalf that he couldn't have
heard those words is a mere charade. Furthermore credible and
therefore acceptable evidence shows that the accused said within
PW2's hearing "I have stabbed him". Needless to say no one
else within the vicinity of that utterance was stabbed with a spear
during that night besides the deceased. The accused's pretence, put
through his counsel to the Crown witnesses that it might be Khatampi
who stabbed the deceased cannot avail the accused because in the
light of the fact that the accused had earlier been heard to say if
it was Nako who was with PW1 in the hut

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he was
going to slaughter him like a goat, and in the light of the fact that
he ordered for the spear to be fetched while he was keeping watch to
ensure that the deceased didn't escape; or if he did, from the
entrapment it would not be with any success, further in the light of
the fact that within a short while of the end of the chase he was
heard to say I have stabbed him, and finally in the light of the fact
that the deceased laid the blame on him for the stabbing; no way can
the accused hope to escape criminal liability for the death of the
deceased. Even assuming it is Khatampi who stabbed the deceased, the
accused had done more than enough to show he associated himself with
Khatampi's acts hence his resort to a lordly sleep in the comfort of
his bed even though he had earlier heard Khatampi's wicked suggestion
that it would be better to kill PW1 too if the deceased is killed, so
as to suppress and render evidence of the sordid deed obscure and
incapable of detection. Not that I believe any bit of this calculated
herring across the trail; but in case Khatampi is also liable it does
not render the accused innocent because clearly he made common cause
with Khatampi were I to take it that Khatampi did the stabbing which,
I do not.

As in
CRI/T/75/79 Rex vs Peter Kenene Mahase (unreported) at p.39 I wish to
reiterate the phrase reflected therein to the following effect as it
is apt in the instant case as well:

22

"The Court formed an opinion at the close of the Crown case that
a sufficiently strong prima facie case existed to warrant the
accused's answer. What I mean is that standing on its own the Crown
case was enough to secure the accused's conviction" for the
crime charged.

I may add
that in a criminal case it is important to establish, where possible,
motive for the offence committed. In the instant case the only form
of motive I have been able to discern is the accused's resentment at
the deceased sleeping with a woman at night at his own brother's
household.

Use of
the lethal weapon in the form of a spear driven through the upper
part of the human body can always lead to one thing i.e. criminal
intent to commit the offence charged.

The
accused is accordingly found guilty of murder of Nako Selone as
charged.

My
assessor agrees.

JUDGE

15th May,
2000

For Crown
: Mr Ntaote

For
Defence : Mr Matooane

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EXTENUATION

During
the extenuation phase of the trial the Court benefited from the
agreement made between counsel as to what appear to me truthfully to
be two important factors which could be considered in an attempt to
find whether or not there are extenuating circumstances in this case.
The first is that the accused is an unsophisticated illiterate. The
next is that the element of intoxication is a factor which is worth
considering at this stage of the proceedings.

Indeed,
extenuating circumstances where established serve to palliate the
accused's moral blameworthiness and in the result enable him or her
to avoid the ultimate penalty of death. The onus is on the accused on
a balance of probabilities to establish the existence of extenuating
circumstances. The test is subjective.

The
existence of extenuating circumstances can be proved by evidence not
too remotely related to the case that

1. the
   accused was drunk

   
   

2. the
   accused is immature

   
   

3. the
   background and social milieu of which he is a product does not frown

   
   

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upon a
certain form of conduct.

The list
is not exhaustive. But even if one factor standing alone might not
avail an accused person, indeed a combination or accumulation of two
or more factors might just be enough to fit the bill.

Thus
taking into account also factors which are not part of the agreement
between the respective counsel; the situation revealed by facts
gathered from evidence is such that the combination of drunkenness
and illiteracy subjectively could have moved the accused to think
that he justifiably had a bone to pick with the deceased for sleeping
with a woman in his brother's household and that the form of intent
reflected is one known as dolus eventualis as opposed to dolus
directus, as reflected by the fact that there was a hue and cry after
the deceased thus showing it couldn't be said there was direct intent
to kill. While not meaning to be understood to say that the existence
of dolus eventualis necessarily helps avert the ultimate penalty, I
should indicate that put side by side with dolus directus the form of
intent known as dolus eventualis , would more readily help the
accused avert the ultimate sentence than would dolus directus do.
Thus I feel that the accused has adequately discharged the onus cast
on him and do find that extenuating circumstances in this case exist.

25

MITIGATION

The Court
has taken into account that the accused has no previous convictions.

Further
that he was relatively young and aged 25years at the time of the
commission of the offence. Further that the case has been hanging
over his head since 1988 and that he has had to forfeit his bail
since 1995 when he mistakenly thought that the law had gone on
retirement. He is married and has two children.

However
the Court would be failing in its duty if it could be blinded by
these factors to the fact that an innocent life has been lost; and
that the accused tended to over play his hand where it was not his
business to interfere as the authorised person 'Mamongoli had given
permission to the couple to put up at the place which is hers and not
the accused's.

The
accused is sentenced to 12 years' imprisonment

My
assessor agrees

JUDGE

26 15th
May, 2000

For Crown
: Mr Ntaote

For
Defence : Mr Matooane