CRI/T/29/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

and

TUMELO
KHAEEANE

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 5th day of
September, 1988

The
accused, Tumelo Khaeeane, is charged with the murders of Nthako
Likotsi, Mathselira Nkoro and Khauta John Tsiane at Ha Leqele
in
Maseru District on the 9th July, 1983. To these charges the accused
has pleaded not guilty.

The
defence admitted the depositions of 'Mantsaba Nkoro (P.W.1 at the
preparatory examination) and Detective P/W Ranthona as to
the
identity of the deceased persons before the doctor who performed the
post mortem examinations.

Because
the doctor who perfomed the post mortem examinations upon the corpses
of the deceased persons has left this country permanent
the Crown
handed in the post mortem examination reports in terms of section 223
(7) of The Criminal Procedure and Evidence Act
1981.

2

finding
of the doctor was that the deaths were due to bullet injuries. In the
case of Nthako Likotsi the bullet entered from the
right side of the
back, went through the bowels and in the process caused leakage of
bowel contents plus lot of blood and came
out of the left side of the
front of the abdominal wall; in the case of Mathealira Nkoro the
bullet went through the anterior chest
wall, across the heart
(through and through) and landed in the posterior chest wall without
coming out, in the process there was
a lot of blood that was lost in
the right pleural cavity, in the case of Khauta John Tsiane the
bullet entered through the left
upper abdomen and exit through the
right lower chest with gross injury to the liver and some injury to
the right pleural cavity.

It is
common cause that in July, 1983 the accused and the xxxxxx deceased
persons were members of the then Lesotho Paramilitary
Force (L.P.F.)
stationed at Makoanyane. During the evening of the 9th July, 1983 the
accused and some of his colleagues, namely,
Private Vitalis
Ramoeletsi and Private Khohlooa, decided to go out of the camp to
drink beer at the home of one 'Mankeo Tseiso
(P.W.2) which is not far
from the camp. To get to 'Mankeo's place they took a short cut
through an opening cut through the security
fence by soldiers who
frequented 'Mankeo's place.

It is
also common cause that when the accused and his colleagues arrived at
'Mankeo's shebeen the deceased persons were already
there and wore
drinking beer. There were about twenty-two (22) people in the room
whose area was described as being about 5 x 4½
metres. The
deceased persons were standing near the door and singing.

3

Vitalis
Ramoeletsi (P.W.5) stated that they arrived at the shebeen at about
7.00 p.m. They bought beer and set down and drank it,
The type of
beer they were drinking was locally brewed of pineapple. He was the
only one amongst his colleagues who was carring
an A.K. 47 rifle
which had thirty bullets in its magazine,It was not in a cocked
position and the safety catch was in the safe
position.

About an
hour after they had been drinking he went out of the house in order
to relieve nature and handed his rifle to accused to
keep it. When he
came back he found that the accused had changed his seat and had
taken a seat on the opposite side of the room
near a certain girl.
After a while the accused rose are went out of the room. Vitalis says
that the accused was wearing a blanket
and went out still carrying
his (Vitalis's) rifle. As the accused was his colleague he saw
nothing wrong and did and demand that
he must give back his gun when
he went out of the room

While the
accused was outside Vitalis heard three gun shots from outside and
because the sounds quickly followed each other a had
the impression
that they came from an automatic rifle. He took Private Khohlooa rose
and got out as quickly as they could, but
the house they found the
accused standing near the window and fired the gun at the point of
balance. He asked him (accused) what
was happening and who had fired
with a gun. The accused did not answer the question but merely said.
"Take your gun and let
us go.

He took
his gun and they left for the camp. On their way a the camp accused
said that when they arrived at the donatory the (Vitalis)
must count
his bullets. Vitalis asked him why he said

4

count his
bullets and the accused said: "When something is about to happen
I have a premonition." When they got to the
dormitory accused
called him to the toilet where they counted the bullets in the
magazine and found that three bullets were missing,
i.e. there were
only twenty-seven {27} bullets.

After
Vital is had indicated that there was going to be an inspection on
the following day accused suggested that they should go
to one
Private Makateng and borrow three bullets to make a cover-up at the
inspection. They went to Private Makateng and he readily
lent them
three bullets. It turned out during the trial that the practice of
borrowing bullets to cover up a soldier who had lost
or misused his
bullets was common amongst soldiers. Accused explained to Private
Makateng that his rifle had gone off accidentally.

They
returned to their dormitory and slept. While they wore sleeping
Captain Kolonkoane (P.W.1) and Major Macheli arrival and woke
them
up. They took them to the office and they were called into the office
one by one. They were asked why they killed people at
Ha Leqele. They
all denied any knowledge of the killing of people at Leqele's.
However at last the accused told the truth that
he was the one who
had killed those people because his rifle accidentally went off when
his finger touched the trigger by mistake.

Under
cross-examination Vital is stated that on the night in question he
was not drunk because pineapple beer has no intoxicating
effect on
him. He was not in a position to say whether the people in that house
were drunk or not because he is not a medical doctors

5

He denied
that he was the one who suggested that they should go to Private
Makateng and borrow the bullets.

Captain
Kolonkoane (P.W.I) testified that after receiving report that there
had been a shooting at the shebeen of 'Mankeo and. that
some of his
men had been killed he went to the scene of the shooting. He found
two deceased persons lying in the shebeen and one
of them was lying
in the forecourt. He noticed that there were three bullet holes on
the door and the indications were that they
were fired from outside.
The corpses were taken to the Queen Elizabeth II Hospital mortuary in
another vehicle.

On his
arrival at Makoanyane barracks he went to the dormitory used by
accused, Private Vitalis Ramoeletsi and Private Khohlooa.
He found
that they were already asleep. He woke them up and ordered Private
Vitalis Ramoeletsi to give him his gun which was an
A.K. 47 rifle. He
took them to his office together with the gun. When they arrived at
his office he examined the gun and found
that it had thirty bullets
in the magazine. He then called them into his office one by one and
asked them what had happened at
'Mankeo's shebben. They first said
nothing happened but at last accused said he was the one who had
killed the deceased 'for no
reason'. He later said the firearm went
off accidentally when his finger touched the trigger.

On the
following day Captain Kolonkoane went to the scene-of the crime
accompanied by policemen from the C.I.D. Three bullet shells
were
found at the scene of the shooting and they wore all for an A.K. 47
rifle. (They were handed in as exhibits and marked Exhibit
1
collectively).

6

'Mankeo
Tseiso (P.W.2) is the owner of the house in which the shooting took
place. She testified that on the night in question there
were about
twenty-two people in the house including the accused and his fellow
soldiers. The people were in a. very happy mood
and the deceased
persons were standing near the door and singing. The accused was
sitting near her and carrying a gun. At some
stage accused rose and
got out of the house. A short while after he got out she heard three
gun reports from outside and the three
deceased persons fell on top
of each other. However one of them Tsiame rose, he staggered and got
out of the house but feil again
at the forecourt. She saw him fall at
the forecourt because at that time the door had been opened and they
were all trying to get
out.

When she
eventually got out she ran toward Makoanyane camp intending to report
the shooting at her place but met Captain Kolonkoane
who had already
got a report from Private Molapo.

In
cross-examination it was put to her that she could not be sure that
when the shooting started the accused was still outside because
she
was not paying any particular attention to him. Her answer was that
accused had just gone out and had not returned to his seat
near her.
She expected the accused to return to his seat because in the shebeen
people tend to retain the same seats.

Private
Serame Makateng (P.W.6) deposed that on the night of the 9th July,
1983 the accused came to him and borrowed three bullets
for an A.K.
47 rifle and explained that his gun

7

accidentally
went off when he was below the dormitory for "F company".
He gave him the three bullets. He was accompanied
by Private Vitalis
Ramoeletsi who never said anything to him. The accused never returned
the bullets because he was arrested on
the same night.

John
Thaele (P.W.4) was in the shebeen on that fateful night. He saw when
Private Vitalis Ramoeletsi gave his gun to the accused.
After some
time he saw accused standing near the door and immediately after that
he heard gun reports. At that time he noticed
that the accused was no
longer near the door-The deceased persons fell down when he hoard the
gun reports and one of them fell
on him. He pushed him away and
rushed out of the house. He then met the accused outside and he
(accused) suddenly pointed a firearm
at him and asked him if he had
seen the gun that was fired in the house. When he said no the accused
asked him if it was a Government
gun or a civilian gun. He said he
did not see the gun. The accused asked him if Nkoro and the others
were still alive or dead.
He said he did not know. They parted.

Second
Lieutenant Mapeshoane is a member of R.L.M.P. attached to C.I.D. He
testified that he went to the scene of crime on the 13th
July, 1983.
He saw three bullet holes on the door of 'Mankeo's house and found
three bullet shells outside the house. He took them
and kept them as
exhibits in this case. He charged the accused with three counts of
murder. I think this witness must be mistaken
about the date on which
he went to Mankeo's house because according to Captain Kolonkoane
C.I.D. men came on the following morning
which was the tenth July.

8

Accused
gave evidence under oath and denied that he made an admission to
Captain Kolonkoane that he killed the deceased persons.
He denied
that Private Vitalis ever gave him his gun; he denied that he was
outside the house when shooting took place; he denied
that he
borrowed bullets from Private Serame Makateng and his version is that
it was Private Ramoeletsi who borrowed the bullets
because seven
bullets had been stolen from his locker.

The
accused was a very unsatisfactory witness and told a lot of lies. He
said that when they arrived at their dormitory Private
Vitalis
Ramoeletsi discovered that seven bullets were missing from his
locker. This story was never put to the Crown witnesses
whose
evidence was that there were thirty bullets in the-magazine when
accused and his companions went to the shebben and that
when they
returned three bullets were found to be missing from the magazine and
not from the locker.

Mr.
Moorosi, accused's counsel, is a well experienced and capable lawyer
and could not have failed to put this important part of
the defence
case to Crown witnesses if he was aware of it. The impression I had
was that the story was an afterthought. If Private
Serame Makateng
had lent them only three bullets where did the other four bullets
come from because when Captain Kolonkoane examined
the gun that same
night he found that there were thirty bullets. This fact shows that
the accused is lying when he says that seven
bullets were missing.

9

It was
submitted on behalf of the accused that the evidence of Captain
Kolonkoane is inadmissible on the ground that members of
the then
L.P.F. were policemen and that a confession made to them had to be
reduced to writing in the presence of a magistrate
in terms of
section 228 (2) of the Criminal Procedure and Evidence Act 1981. I do
not agree with this submission because the Lesotho
Paramilitary Force
Act No.13 of 1980 makes it clear that members of L.P.F. are not
policemen. Their duties are set out . in Section
5 of the Act and are
entirely different from the duties of policemen set out in section 7
of Police Order No.26 of 1971,

The
statement made to Captain Kolonkoane is admissible,, In that
statement the accused admitted that he shot the deceased persons
for
no reason and later qualified the statement by saying the gun went
off accidentally. The Crown rebutted accidental firing of
the gun
with the evidence, which I believed, that an A.K. 47 rifle is a very
solid gun and that when the safety catch is on safe
it cannot fire
when the trigger is pulled. The safety catch could not accidentally
move to the off position unless it was manipulated
deliberately.

I
observed Captain Kolonkoane when he gave his evidence and he
impressed me as a truthful witness who investigated the matter very

fairly and there has been no complaint by the defence that he
threatened the accused with violence or influenced him in any way
to
make the statement. If the defence had proved threats or promise
emanating from Captain Kolonkoane his evidence would be inadmissible

because he would be in the position of a person in authority as far
as the accused is concerned because the accused was may have

reasonably supposed that he was capable of influencing the

10

course of
the prosecution. In the case of R. v. Barlin, 1920 A.D. 459 at p. 462
Innes, C.J. summed up the law in the following words:

"The common law allows no statement made by an accused person to
be given in evidence against himself unless it is shown by
the
prosecution to have been,freely and voluntarily made - in the sense
that it has not been induced by,any threat or promise proceeding
from
a person in authority."

The
accused is again implicated by his fellow soldiers with whom he had
very cordial relations. He admitted that he had previously
had no
quarrels with all the Crown witnesses,, They all impressed me as
honest and truthful witnesses who had no grudge against
the accused.
I believe their story that the accused took the gun of Private
Vitalis Ramoeletsi and got out of the house. Immediately
after he got
out the people in the house heard three gun reports from outside and
that the bullets hit the three deceased persons
whose names appear in
the indictment The deceased died as a result of the bullet injuries
described in the doctor's reports.

The
circumstantial evidence before me shows that the accused was the
person who fired those three bullets which killed the deceased

persons. At the time of the shooting the accused was outside and had
a gun belonging to Private Ramoeletsi. Immediately after the
shooting
he was found standing outside near a window and holding the gun at
the point of balance and yet when he got out of the
house the gun was
suspended from his shoulder with a sling. When John Thaele got out
and met the accused at the gate he asked him
questions which tend to
prove guilt. He wanted to know if Thaele

11

had seen
the gun used and whether the deceased persons were still alive or
not.

He knew
that the deceased were standing near the door inside the house and
that when he fired into the house through the door they
were the
first targets to be hit.

Another
piece of evidence which implicates the accused is that on their way
to the camp he said he had a premonition that something
was going to
happen and suggested that when they arrived at the camp Private
Ramoelotsi should count the bullets in the magazine
of his rifle.
When they counted the bullets they discovered a shortage of three
bullets. Accused suggested that they should borrow
three bullets from
Private Makateng. I am of the view that he made the suggestion that
the bullets should be counted not through
a premonition that
something would happen but because he knew very well that he had
fired some bullets into the shebeen and knew
that investigation would
be made immediately and that the shortage would be discovered.

I have
come to the conclusion that the accused is the person who fired the
gun from outside the house in question and killed the
three deceased
persons named in the indictment.

The next
question is whether the accused had the requisite intention to kill
in the form of actual intention or in the legal sense.
The evidence
before me shows that he had actual intention to kill. The accused
must have moved the safety catch from the "safe
position11 to
the "off position" deliberately. He aimed at the door
knowing well that the deceased were standing near
that door and fired
three shots. He had actual intention to kill them.

12

His
defence was a complete denial and he also raised the question of
drunkenness. He testified he had been drinking pineapple beer
for
about two hours and that during that period he drank about five
litres. His own evidence clearly shows that he was not so drunk
that
he did not know that the act he committed was wrong or that he did
not know what he was doing {see section 2 (2) of the Criminal

Liability of Intoxicated Persons Proclama­tion No. 60 of 1938).

Section 4
of the above proclamation provides that 'intoxi­cation shall be
taken into acount for the purpose of determining whether
the person
charged had formed any intention, specific or otherwise, in the
absence of which he would not be guilty of the particular
offence
charged.'

In the
case of Rex v. Tailor, 1949 (4) S.A. 702 it was laid down that in a
case of a person charged with murder who is found to
have had the
capacity to form the intention to kill although he was affected by
liquor even to the extent that might justify the
description of him
as drunk, the decision of the question whether in fact he had that
intent will ordinarily proceed along the
same lines as if he had been
sober. In my view this statement of the law conforms with the
provisions of section 2 (2) of Proclamation
No. 60 of 1938.

I have
stated above that the evidence before me proves . that the accused
knew what he was doing. Immediately after the shooting
he was in a
position to plan a major cover-up of borrowing bullets to replace the
ones he had used. He went to Private Serame

13

Makateng
and lied that his rifle went off by mistake when he was below the
dormitory for "F Company". His question to
John Thaele
whether the deceased persons were dead or alive shows that when he
fired the three shots his intention was to kill
them and no other
persons. The house into which he fired was full of many people but
accused knew his targets and asked about them
only.

In any
case the accused did not raise drunkenness as a defence; he never
claimed that he was so drunk that he did not know what
he was doing.

I have
come to the conclusion that the Crown has proved beyond a reasonable
doubt that the accused had the intention to kill the
three deceased
persons named in the indictment.

I
accordingly find the accused guilty of the murders as charged.

My
assessors agree.

J.L.
KHEOLA

JUDGE

5th
September, 1988.

14

FINDING
ON EXTENUATING CIRCUMSTANCES

The Court
is now enjoined to decide if there are any extenuating circumstances
which will enable it to pass any sentence other than
death sentence,
Extenuating circumstances have been defined by Shreiner, J.A. in the
case of R. v. Fundakubi and others (1968 (4)
S.A. 810) as any factor
not too remote or to faintly or indirectly related to the commission
of the crime, which bears upon the
accused's moral blameworthiness in
committing it. The first factor is the accused's age. Although his
date of birth could not be
fixed with any certainty, it was agreed
that in 1983 when he committed the offence he was twenty (20) years
old.

It has
been pointed out in a number of cases that a youth of 20 years is no
child, yet he cannot reasonably be expected to show
the same
stability of character, responsibility and self-restraint as a fully
mature man. It has also been stressed in some cases
that youth is a
relevant extenuating circumstance when it is considered with another
factor or other factors (R.v. Hugo, 1940 W.L.D.
285; S. V. Khumalo,
1968 (4) S.A. 284).

In the
present case the accused was not only 20 years old at the relevant
time but was also drunk. The question of drunkenness was
well
canvassed during the trial; it was established that the accused and
his colleagues had been drinking pineapple beer for about
two (2)
hours and that during that period the accused consumed about five (5)
litres of liquor. There is no doubt in my mind that
the liquor had an
influnce on the mind of the accused and that his moral
blameworthiness cannot be like that of a sober person.
It is not even
necessary for the Court to decide the

15

precise
degree of his intoxication when he committed the offences (S. v.
Babada, 1964 (1) S.A. 26).

Taking
into account the cumulative effect of accused's youthfulness and
intoxication I come to the conclusion that there are extenuating

circumstances. The proper verdict is that the accused is guilty of
murder with extenuating circumstances.

SENTENCE

In
passing sentence I shall take into account the fact that the accused
is a first offender and that he is only a youth of 20 years.
He is
unmarried. He has been in prison for about one year and four months.
On the other side I must take into account that the
accused was a
trained soldier who knew how lethal an A.K. 47 rifle is; he took the
lives of three innocent people who had not provoked
him in any way. I
sentence the accused to two and half (2½) years1 imprisonment
on each count,

J.L.
KHEOLA

JUDGE

5th
September, 1988.

For Crown
- Miss Moruthoane

For
defence - Mr. Moorosi.