CRI/T/43/88

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MOTSE
MIYA

Held at
Butha-Buthe

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 16th day of December,
1988

The month
of November marks the annual prayer meeting of an unnamed religious
denomination of which accused, his mother, his wife,
P.W.4 Mathebe
Nyamane, P.W.5 Mofechana Senekane, P.W.6 Mosebetsi Nyanane, P.W.7
'Mamaseli Maleke and P.W.8 Monyane Ralithakong
are devout members.

Apparently
this event has such an attraction that even those without any purpose
for attending it find themselves gravitating to
it. Of these P.W.10
Mphethe Ratsele serves as an avowed example.

The pious
meeting held in a tent pitched at P.W.7's homestead at Ha Lekopa
ground to an unscheduled halt between 11.00 pm. of 21st
November 1987
and 1.00 O'clock of the following morning. The day itself was an
ominious one - characterised by the howling moan
of the wind and
gloom of darkness. The full throated choral singing in the tent only
helped muffle and drown the loud bang of a
commando pistol as a
gunshot rang out fatally injuring the deceased Ali Nyamane in

2

respect
of whose murder accused Motse Miya today stands charged.

The
defence with a view to shortening the procee­dings admitted the
preliminary depositions of P.W.1 Fusi Nyamane who identified
deceased
before the doctor for purposes of post mortem examination, P.W.3 No.
4695 Detective Trooper Motlatsi, P.W.6 Mosebetsi
Nyamane, P.W.7
Mamaseli Maleke, P.W.8 Monyane Ralithakong, P.W.9 No. 4536 Detective
Trooper Sebele, P.W.10 Mphethe Ratsele, P.M.13
Lt. Lehlohonolo,
P.W.14 2nd Lt. Matlosa and P.W.15 2nd Lt. Mejaro. Their evidence was
accordingly read into the recording machine
and thus made part of
these proceedings.

The
evidence of P.W.6 revealed that she was at the prayer meeting having
been assigned to stand at the door of the tent to allow
members only
to come in. It was while performing this function that she saw a boy
Mphethe sitting next to the door. Then a woman
trampled on Mphethe's
leg where upon the latter voiced his complaint. An argument ensued
between the two. In the course of this
argument a man who was with
this woman closed ranks with her by getting hold of Mphethe and
hitting him with an open hand. This
woman then pushed P.W.6 Mosebetsi
the door keeper and entered the tent. Soon thereafter she pushed her
again and went out. It is
the further admitted testimony of P.W.6
that the man was still assaulting Mphethe. Then P.W.6 saw the woman
holding something which
she thought was a stick, and giving it to the
man. The man got hold of that object and raised it to hit Mphethe,
but before the
blow could reach him, Mphethe fell down. A big sound
ensued thereupon P.W.6 got into the tent to report to P.W.5 Mofechana
Senekane
(whose evidence was neither admitted nor led) that someone
was being killed outside. It is not denied that P.W.5 then said the
bullet had hit deceased. It can safely at this juncture be assumed
that deceased was inside the tent for it appears that P.W.6's

unopposed evidence that she got into the tent implies that she was
outside it before when she witnessed

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the
encounter between the boy Mphethe and the man referred to above. In
the tent she found P.M.5 who had not been outside but who
told this
lady that deceased had been hit. Thus no reasonable possibility can
be advanced against the conclusion that deceased
was also in the tent
at the time. Time must have been so brief between the point when
P.W.6 got into the tent and repor­ted
to P.W.5 about somebody
being killed outside and the point when P.W.5 told her that deceased
had been hit that he could not have
heard of it from anybody from
outside before P.W.6 told him. It becomes plain there­fore that
P.W.6 must have entertained a
mistaken belief that either the man she
saw falling immediately before the sound of the gun or someone else
who might have been
outside the tent was hit by the bullet from the
gun she heard exploding outside.

P.W.6
further testified that "the man concealed the object which gave
a sound under his clothes. The object nearly fell down
after it gave
a big sound. The man end Mphethe were three paces away from me"
In fairness to the accused and his Counsel I
have since discovered
after scrutinising the manuscript of the Learned Magistrate who
recorded the depositions at P.E. that the
word "after" was
spelt as "a fir" in the text admitted by the defence.

Indeed
the P.E. depositions which have been admitted are very sketchy and
full of contradictions. Without benefit of hearing the
relevant
witnesses to clarify certain important details it becomes very taxing
to try to make sense out of the given texts. Still
on the question of
where the deceased was when he got hit P.W.7 at whose place the
prayer meeting was held is recorder as having
said

"Accused came to me and told me that he had killed somebody
outside. He did not tell me why he-killed the man. The man was
lying
in the tent. I did not hear the sound of any gun because there was a
lot of wind".

A close
scrutiny of this evidence tends to show

4

that a
number of things were overlooked in the leading of the crown
witnesses at the P.E. Further that without benefit of hearing
accused
it might just have been understandably difficult to see things in
their proper perspective. But as we now know accused
in his evidence
said immediately after realising that it was his own gun which had
fired he looked among people who were outside
the tent and saw that
nobody was injured. It was only after he went inside the tent where
he found a man and a woman tending to
deceased after the latter

had been
shot, that accused discovered that the injury occurred not to anybody
outside but inside the tent. Further it may well
be that when getting
the report from accused that he had killed somebody outside the two
were in a house belonging to P.W.7 and
by outside she meant outside
that house. But because this witness says deceased was lying in the
tent and in the absence of any
evidence that deceased was carried
from outside into the tent I remain firmly of the view that deceased
was in the tent when he
got shot.

The
evidence of P.W.10 Mphethe which also was read into the recording
machine after being admitted further strengthens the above
view for
he is recorded as having said at page 5 line 30 :

"The man let me go and I fell down. He ran into the tent and I
ran to my home."

The
evidence of P.W.10 apart from supporting that of accused that it was
dark outside (he says there was no moon) tends to show
by inference
that the woman who trampled on his leg was accused's wife.
Furthermore it is corroborated by that of P.W.6 on the
point that a
woman trampled on his leg while in his words he "was standing
next to the tent." He is recorded as having
said he objected but
the woman did not reply. It is not denied by the accused that

"The man hit me with a fist. He asked me what I was saying to
his wife. I did not reply. He

5

got hold of me and pulled me a short distance away. He called the
woman. I did not see what the woman handed to him. I heard the
sound
of the gun only. The man let me go and I fell down. He ran into the
tent and I ran to my home."

In
evidence before me accused denies that he admitted that statement
that he hit P.W.10 with the fist, and that he asked what P.W.10
was
saying to his wife, and that he pulled him a short distance away. He
further denies that he admitted the statement that the
woman handed
him an object. It thus remains to be wondered how his attorney could
have in these instances acted against his client's
interests or
instruction. Taking into account the vast experience of his attorney
who is the most senior in this territory and
the expert manner in
which he has conducted the case on behalf of the accused the only
conclusion I can come to is that accused
is not being honest. That
can hardly count to his credit.

It is
regrettable that the court was not given benefit of evidence of the
description of the area including the immediate vicinity
of the place
where events of the fateful day took place. It is the mark of the
carelessness of the investigation that was done
in this that there
has not been placed before court the shell of the bullet that must
have been ejected and fallen down when the
shot was fired. The
importance of these inadequacies will become apparent in my treatment
of the next witness.

This was
P.W.12 Dr. Wilhelm Krick who testified that in November last year he
performed an autopsy on deceased; and formed an opinion
that death
was caused by a shot wound which had entered the left end of the
brain. In his observation before hitting and entering
the left cheek
the shot must have entered the shoulder and exited at a point above
it and travelled the short distance between
the exit point on the
upper part of the shoulder into entry point on the left cheek. The
doctor did not find any exit point on
the other side of the

6

cheek or
skull. He was able to follow the entry with a probe. The probe went
as far as the front part of the brain where bones are
thick. But
because of lack of necessary instruments he was not able to retrieve
the bullet wherever it was lodged.

He
described the path that the bullet followed as one of upward slanted
pattern from below the outer left shoulder to its top leading
to the
head. He explained that the cause of death was trauma caused by the
bullet entering the brain.

The
report was handed in marked "A".

Now comes
the importance of the evidence as to the physical features of the
scene of crime as will be illustrated by questions put
to the doctor
by defence attorney followed by the replies :-

"You said the bullet must have come from below as it moved to
the head from the shoulder - ? Yes but depending on whether
deceased
was standing or sitting. Accused will say deceased was sitting. Would
there be anything to show inconsistency with his
assertion - ? What
he says is inconsistent with what I found. If you found these things
you have mentioned can you be heard to
wildly say deceased must have
been standing. Couldn't you also have said he was sitting - ? I could
say so. Yes. But you definitely
say the bullet was moving upwards
towards jaw - ? Yes. It could also have followed same path if the
deceased was lying down and
gun fired at angle pointing towards lower
part of shoulder and inclining in an oblique line towards the head."

7

If the
evidence relating to the topography of the scene of crime had been
available it would not have been difficult to determine
the relative
positions of the deceased and the accused or his gun. Given that the
incline of the bullet path from relative positions
of the entry -
exit - and - entry points are constant it would be easy to determine
by process of elimination any inconsistencies
in the evidence that
might seek to elevate or lower the relative positions of the
deceased, the accused and/or his gun regard also
being had to the
distances separating them.

It for
instance may be argued that deceased could not have been hit where
the wounds are unless he was standing. Cast iron evidence
might show
that he was sitting; though concealing that he was sitting on an
elevated spot such as a stoep. This is what could have
been cleared
by investigators bringing all available evidence before relevant
authorities till finally before Court,

The crown
led evidence from members of the police force regarding mainly the
safety of the gun that was used to inflict the fatal
injury through a
shot that was fired from it. This is a firearm commonly referred to
as a commando pistol. I am satisfied with
their testimony including
that of D.W.3 Lt./Col Phapho that under no circumstances could this
gun be fired whether by being hit
hard upon the ground or against any
object as long as the safety catch is at position "S" or
other­wise the no-danger
position.

I need
not go into the spurious myth of a thing or phenomenon spawned by him
and referred to as "hook-iron" save to say
once more
accused in advancing this story about the hook iron and how it can
reduce the safety quality of "Ex.1" has
brought to himself
discredit with regard to an important if not crucial aspect of his
defence.

Accused's
story in brief is that he is a member of

8

the Royal
Lesotho Defence Force. By rank he is a Trooper stationed at Mohale's
Hoek employed in the general department.

On the
day in question he set out from Mohale's Hoek for his home in
Butha-Buthe at Makhoakhoeng at a place called Phoku. He had
learnt
while at his station in Mohale's Hoek through his brother-in-law that
his wife was seriously ill. He travelled with his
brother-in-law by
vehicle to Butha-Buthe where they arrived at around 10 pm. Accused
had his rifle "E.1" and its 24 bullets.

Notwithstanding
the report about the seriousness of his wife's illness and that he
had been just because of it, put under the necessity
to travel all
that distance from his station he was nonetheless not surprised when
he come home that the wife was not there because
he knew on that
particular day being the day of the annual prayer meetings she would
definitely be at such meeting. No sooner had
his father confirmed
that the wife was at P.W.7's place attending a prayer meeting than
accused drove there accompanied by his
brother-in-law.

Accused
came to the tent found his wife seated next to his mother. He asked
his mother's permission to talk to his wife. The permission
was
granted and accused moved outside the tent with his wife. There were
many people in the tent.

Because
it was dark near the door way accused located a spot near the tent
where a beam of light had thrust through a hole in the
tent providing
an ideal place where he and his wife could talk together away from
the din inside the tent and no doubt also from
the stare of curious
eyes.

But
trully that was not to be: for as intrusively as the inscrutable ways
of providence, hardly two minutes after accused and his
wife were
standing there, two blanketed men with suspicious slow movements
looked

9

at them
in a manner that suggested they wanted to know who accused was, or
who he and the wife were, or to say something.

This
weird and irritating ritual was performed on no less than four
occasions. Whereupon accused observed to his wife that it seemed

these men had some ulterior motive or something unappealing in their
manner. Accused then invited his wife into the tent and decided
he
would resume his talk with his wife at home.

Accused
and wife made for the tent door with the wife moving in front of him.
Just as the wife was a metre away from getting into
the tent and was
trying to push through the throng of crowds who had gathered in that
area, an old man gave way and she managed
to pass. But one of the
strange characters accused had identified by his blanket caught hold
of the wife either by her shawl or
blanket. Another stranger who was
not a member of the ones who had tormented accused and his wife
outside the tent by pacing up
and down, also grabbed her. Accused
said to the blanketed stranger "brother this is my wife and not
just a girl" meaning
"not just fair game."

Then the
tug of war became more and more intense of men pulling at accused's
wife from one direction and accused pulling her towards
him from the
other.

It is at
this stage that accused saw one man trying to hit him with something
shiny half a metre or a quarter long. However on account
of that
object's shortness and the distance accused happened to have kept
away from that man the blow failed to strike accused.
For the first
time an indication of what the tug of war was about was given some
oral expression for accused heard the foiled striker
say "she
can't be exclusively yours (Lover)".

Accused
noticed that as more and more men were entering into the lists
against him he was being over­powered. He thought of
shouting but
abandoned the thought

10

for what
could it avail him amidst such noise of people singing! he thought of
going inside the tent without the encumberance of
his wife to seek
assistance but banished the thought for fear that by the time he
returned the wife would have long been taken
away.

Because
the man holding to the front of accused's wife was closest he was hit
with a fist by accused. The men were clearly in a
war path hence
accused took out his Commando pistol intending to hit one of the men
with it because he feared the gun might fall.
Suddenly they ran away
when he made to hit him but the gun fell and the next thing accused
found that a man behind him had been
hit by a bullet.

Indeed
accused's story is so difficult to grasp that I couldn't help but
sympathise with his attorney when he pointed out that "Ex.1"

is not shiny and it is there for any body to see that it cannot shine
at night submitting as he did as though the factor of a shiny
object
emanated from the crown witnesses whereas it emanated from the
accused himself.

I recall
actually asking accused at the relevant time whether he had furnished
his attorney with the story relating to this ½
or ¼
metre long shiny object and he said he had. The same answer was
purveyed with regard to the many men who had been pulling
at
accused's wife.

It is
clear to me that even in respect of these two incidents given as they
were for the first time when accused came into the witness
box
accused was fabricating. Hardly need I comment on the improbable
remark that one of the men tugging at accused's wife said
she could
not be accused's exclusive lover.

In fact
all this is belied by the admitted evidence of P.W.7 who is recorded
as having said "accused never came to me to complain
about his
wife." I make an allowance for a possibility that some meaning
of this expression might have been lost in the translation.

11

But again
not in so many words the next statement which cannot be said to be
unrelated to the one preceding it clearly puts the
matter beyond
question; it reads "Neither did his wife complain to me about
someone's behaviour." A peraphrace of this
statement shows that
accused couldn't have been justified in pretending to us that he was
defending his wife's honour when the
wife herself was not troubled by
anybody's behaviour towards her honour.

I was
satisfied with D.W.2's testimony that the holes that he observed on
accused's trousers bore no testimony to the fact that
they had been
caused by a gun shot. He explained that it was precisely for this
reason he referred to them as tears instead of
holes. According to
him they appeared to be ruffled tears without gun powder which he
would have expected given the distance from
the gun that caused them.
Accused unlike this witness had said in his testimony the holes were
neat and appeared as if they were
punched by means of a hot
cross-section of round wire for the edges were even scotched or
singed.

The
object that P.W.6 saw the woman who by now it is clear that she was
accused's wife, handing over cannot have been anything else
but
"Ex.1" the Commando pistol. P.W.10 corroborates P.W.6 as to
the handing over of this object to accused. The fact
that the
evidence shows that it nearly fell after it had given a big sound
cannot lead to any other inference but that it had been
fired while
in the actual and physical control and direction of accused. It is
therefore not true that before it was fired he had
just unslung it
from his shoulder and under his jacket. Indeed in keeping with what
counsel for the accused submitted it is not
shiny. Nowhere have any
of the crown witnesses suggested that it was shiny. On the contrary
one of them thought it was a stick.
Yet the amazing thing is that
immediately after being handed to accused P.W.10 takes to his heels
and falls just before the gun
gave a big bang.

The
principle in law is that an accused person who

12

tells
untruths when giving evidence is as good as one who gives no evidence
at all. But should the Court in coming to a conclusion
make two
inferences then the fact that accused has been lying may be
considered as strengthening the inference of guilt. But this
does not
relieve the Crown of its burden to prove the case beyond reasonable
doubt. The onus rests on the crown throughout,

I reject
on the score of absurdity accused's story that the fire-arm fired
itself.

The only
and constant direction to which credible evidence points is of
accused's legal intention to commit the crime charged. See
Rex vs
Thabiso Lejoetso 1971-3 LLR. 180 where Evans J. said

"Legal intention, dolus eventualis, exists when the assailent at
the time of the actus reus foresaw that it might cause his
victim's
death."

There can
be no lawful excuse entitling accused while clearly shown to have
picked up a quarrel with a man that he must have had
a reason to seek
to assault, to entertain the view that because he shot and killed
deceased while meaning to shoot and kill P.W.10
he should be freed
from Criminal liability. See South African Criminal Law and Procedure
Vol. 1 at 116 (b). Nothing in the evidence
is inconsistent with
accused's guilt.

Accused
is accordingly found guilty of murder as charged.

JUDGE

16th
December, 1988.

13

ON
EXTENUATING CIRCUMSTANCES

Court has
found that there are extenuating circumstances in this matter.

Pleas
advanced by accused's attorney are fully endorsed.

The fact
that because you are a policeman you should have known better has at
the same time another perhaps not so obvious a side
that a verdict of
murder is very telling against you and it may well be no other form
of punishment can exceed it in severity.
You are still young, have a
family and will according to custom be required to raise head of
deceased by his family. The fact that
you are a policeman will make
you a target of jeers by your inmates but of course that is a matter
that you brought to yourself.
You have done discredit to members of
your force and as if to mock the very joyous occasion and bid
defiance to the high esteem
in which the gathering held their worship
and the atmosphere of peace in which the proceedings were carried out
you defiled the
purpose for which the worshippers had gathered there
by the incongruous use of your gun and the fatal injury of an
innocent man.

I have
taken into account the fact that your counsel says you have expressed
regret for death of deceased. You are also immature
and relatively
new in the force.

You
aresentenced to 5 years' imprisonment.

My
assessors agree.

JUDGE

16th
December, 1988.

For Crown
: Mr. Qhomane

For
Defence : Mr. Molapo.