CRI/T/18/88
IN THE HIGH COURT OF LESOTHO
In the Matter of :
REX
v
MAKOKO LEKULANA
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 28th day of October. 1988.
The accused has pleaded not guilty to two charges of murder and robbery. The following allegations are disclosed by the body of the charge sheet:
"Count I : In that upon on about the 14th May, 1987 and at or near Ha Motake in the district of Thaba-Tseka the said accused did unlawfully and intentionally kill Tseliso Lekulana.
Count II: In that upon or about the 14th May, 1987 and at or near Ha Motake in the district of Thaba-Tseka the said accused did unlawfully assault Tseliso Lekulana and by intentionally using force and violence to induce submission by Tseliso Lekulana did take and steal from his person certain property (money) to wit (M190-79) and wrist watch his property in his lawful possession and did rob him of the same."
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It may be mentioned from the word go that at the commencement of this trial Mr. Monyako, who represents the accused in this case, told the court that the defence admitted the depositions of all the witnesses who had testified at the proceedings of Preparatory Examination. Miss Moruthoane, counsel for the crown,accepted the admissions made by the defence counsel. In terms of the provisions of section 273 of the Criminal Procedure and Evidence Act 1981 the depositions of all the witnesses who had testified at the Preparatory Examination proceedings became evidence and it was unnecessary, there? fore, to call the deponents as witnesses in this trial.
However, Miss Moruthoane told the court that she would call Molemo Seitlheko, Chief Api Tsiu, Monyamane Lekulana Tpr Ramina and D/Tpr Letsoepa who had testified as P.W.2, 4, 7, 10 and 11, respectively, at the proceedings of the Preparatory Examination, to clarify a few points.
It appears from the evidence that in 1984 the accused was assaulted by the deceased who was subsequently criminally charged and convicted by a court of law. Following the criminal conviction of the deceased the accused sued him for damages before the local court of Mashai.
When on 11th May, 1987 he was served with the summons commencing the civil action for damages the deceased tried to assault the accused who, however,
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ran away and took cover behind one Mokete Motake, the headman of both the accused and the deceased. This is confirmed by Mokete Motake who testified as P.W.8 at the Preparatory Examination and told the court that he stopped the deceased from assaulting the accused and reported the incident to Chief Api Tsiu. On receiving the report Chief Api Tsiu immediately wrote the letter, Exhibit "A" at the Preparatory Examination, in which he instructed headman Mokete Motake to send both the accused and the deceased before him so that their quarrel could be resolved.
On 13th May, 1987 the accused was in the company of Mokete Motake and Bota Lekulana, who testified as P.W.9 at the Preparatory Examination, when the deceased again tried to assault him, Bota Lekulana intervened and stopped the deceased from assaulting the accused. The matter was once more reported to Chief Api Tsiu. This is confirmed by Chief Api Tsiu himself who told the court that he again instructed headman Mokete Motake to send the accused and the deceased before him on 15th May, 1987 so that he could settle the quarrel between them on 11th May, 1987 and 13th May, 1987.
The evidence of Mokete Motake and Bota Lekulana that the deceased had been trying to assault the accused is, in a way, corroborated by Molemo Seitlheko, the Court President at Mashai Local Court in whose testimony
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he told the court that at about lunch time on 14th May, 1987 the accused came to him and inquired whether it was true that the deceased had postponed the civil case he (accused) had instituted against him. When the court President denied any knowledge of it the accused told him that the deceased had again been attempting to assault him and the matter had already been reported to Chief Api Tsiu. The accused then pointed out that the deceased was foolish because he was figthing him in the presence of other people. He (accused) threatened that he would fight the deceased where they would be only two and no one to give evidence.
The evidence of the court President is corroborated by Malineo Seitlheko and Maholomo Mpali, two court clerks at Mashai Local Court, who testified as P.W.1 and P.W.3 ,respectively,at the Proceedings of the Preparatory Examination. They both told the court that on 14th May, 1987 the accused found them at a cafe belonging to one Khulenyane Makaba. He told them that he had been at the Local Court but could not find them. He had gone there to report that the deceased had again been fighting him in the presence of Bota Lekulana and headman Motete Motake. The matter had already been reported to Chief Api Tsiu. The deceased was, however, a fool for fighting him in the presence of other people. He was tired of being chased by the deceased
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daily. He was going to fight him where they would be only two and no one to give evidence.
Now, according to Mohau Pitso who was P.W.6 at the Preparatory Examination proceedings, on 14th May, 1987 he left his home village at Ha Motake for Sehonghong alias Mashai police station. He was in the company of the deceased who was, however, going to a local shop at Mashai. They were going on horse back. This is confirmed by Monyamane Lekulana, the father of the deceased, who testified that before he left for the shop the deceased obtained from him an amount of M100 with which he was going to pay for a saddle which had been sent for repairs at the local shop.
Headman Mokete Motake also testified that on the day in question, 14th May, 1987, he and Chief Api Tsiu went to Sehonghong. On their return from Sehonghong on the same day he did see the deceased at the local shop of Mashai. On the way home from Mashai Local shop he met the accused who asked him about the whereabouts of the deceased. He told the accused that he had seen the deceased at the local shop of Mashai. The accused then asked him whether it was true that the deceased was planning to go to the Republic of South Africa. The headman denied knowledge of that. As they approached the village they parted ways and the accused took the direction towards his house.
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Returning to his evidence Mohau Pitso told the court that when he was at a place called "Khorong" on his way back home from Sehonghong on the night of 14th May, 1987.he heard the deceased calling out his name. When he asked what he wanted there at that time of the night the deceased said he should go to him. He went to him and found that the deceased was injured. On inquiry the deceased informed him that the accused had knocked him down from his horse with a stone. Whilst he was on the ground the accused assaulted and gave him no chance to get up. Thereafter the accused took away his money.
Mohau then assisted the deceased on horse back. They had travelled for a short distance when the deceased complained that he was unable to go on horse back. Mohau had to assist the deceased from the horse. He rode to the village and raised an alarm by reporting to deceased's father, Monyamane Lekulana, Bota Lekulana and the headman Mokete Motake before returning to where he had left the deceased at "Khorong." This is confirmed by Mokete Motake who told the court that he Immediately woke up and went to call other village men. The evidence of Mohau Pitso that he reported to them is also confirmed by Monyamane Lekulana and Bota Lekulana both of whom testified that they immediately proceeded to Khorong where they found Mohau already there with the deceased.
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When he came to him Monyamane asked the deceased what had happened and the deceased told him what Mohau has already explained to the court save that he added that the accused had taken his watch as well.
According to their evidence, Monyamane, Bota and Mohau used a blanket to carry the deceased to his house. The deceased sustained no further injuries. Two messengers were then sent by headman Mokete Motake to report to Chief Api Tsiu that the deceased had been injured by the accused. When they returned the messengers found that the deceased ha passed away.
The evidence of Rantsoelia Lekulana who was P.W.5 at the Preparatory Examination is that on the night in question he heard the alarm
following which he went out of his house. He then noticed a person being carried into deceased's house. He went there and found that that person was the deceased who was the son of his elder brother. He had then been placed on his bed. He confirmed that two messengers were detailed to go and report to Chief Api Tsiu. On their return the messengers found that the deceased had passed away.
As has been stated earlier Chief Api Tsiu confirmed that on 11th May, 1987 and 13th May, 1987 reports were made to him that the deceased had been trying to assault the accused. He in fact told the
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court that the accused himself had been referred to him by headman Mokete Motake to make the reports. When ho made the report on 11th May, 1987 the accused told him that he was not afraid of the deceased and would ultimately kill him. Again when he made the report on 13th May, 1987 the accused said he was lame and could not afford running away from the deceased. He would therefore kill him. When the accused threatened to kill the deceased on those two occasions Chief Api Tsiu reprimanded and told him not to do it especially because he (Chief Api Tsiu) was already taking steps to resolve their differences on 15th May, 1987.
However, on the night of 14th May, 1987 the accused came to the Chief's place and reported to him (Chief Api Tsiu) that whilst he was in his house he had heard his grandfather Lekulana saying he (accused) had killed the deceased. He then peeped at the door and noticed a group of people coming towards his house. He escaped from the house and ran to the Chief's place. Those people were in fact following him to the Chief's place.
Chief Api Tsiu then went out but could neither see nor hear the voices of the people the accused was talking about. He, however, decided to accommodate the accused for the night in one of his houses used by the herdboys.
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Shortly thereafter two messengers from headman Mokete Motake arrived and reported that the deceased had been seriously injured by the accused. When he asked them where the accused was, the messengers replied that he had run away. The Chief then took the messengers to the accused where he was accommodated for the night in the house used by the herdboys. He pointed him out to the messengers and told them what the accused had reported to him. He then asked the accused whether after he had reported to him twice that he would kill the deceased he had in fact done so. The accused denied to have killed the deceased. The Chief then put the accused under arrest. He detailed two messengers to go with the messengers of headman Mokete Motake and see the condition of the deceased. When his two messengers returned he learned that the deceased had passed away.
Early on the morning of 15th May, 1987, Chief Api Tsiu left his place to see the deceased at his house. Before he could actually come to the house he met headman Mokete Motake, the father of the deceased Monyamane Lekulana and many other men who told him that they were on their way to the scene of crime at "Khorong". He joined them to that place.
At "Khorong" they found a spot where there was a lot of blood and ground disturbance indicating that a commotion had taken place. There were also blood drops
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leading to another spot some distance away where it was alleged the deceased was found by Mohau Pitso, fatally injured.
After seeing the scene of crime the party returned to the village and went to the house in which the body of the deceased was kept. Chief Api Tsiu detailed mes. sengers to go and report to the police. He himself returned to his home.
Later, on the same day 15th May, 1987, Chief Api Tsiu returned to the house of the deceased where he met a police officer who had arrived in the village. He (Chief Api Tsiu) was then in the company of the accused. This is confirmed by Tpr Ramina who told the court that on the day in question he was already on his way to the village of Ha Motake on a different case when he received a certain report following which he went to the house of the deceased. He found the dead body of the deceased in the house. In the presence of Chief Api Tsiu, heaman Motake, the deceased's father, Monyamane Lekulana, and many other village men he undressed the body of the deceased and examined it for injuries. In the course of the examination Tpr Ramina found that the deceased had sustained multiple injuries. He noted the injuries in his police notebook from which he was allowed to refresh his memory at this trial. The injuries were noted as follows : two open wounds at the back of the head, an open wound across the forehead, an open wound on the head above the left ear,
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six (6) wounds on the right shoulder - they were, however, not deep wounds, a wound behind the left shoulder, two wounds on the elbow of the right arm, another wound on the right arm above the elbow, a wound between the thumb and the fourth finger of the left hand, a wound on the left side of the hip, abraisions on the knees and a deep wound on the right leg.
After examining the deceased's body for injuries Tpr Ramina was taken to the scene of crime by Chief Api Tsiu, headman Mokete Motake and the village men amongst whom were the deceased's relatives. The accused himself remained at home.
I must say I find it strange that people other than the accused went to point out the scene of crime to the police officer. If it were to be of significance the pointing out of the scene of crime had to be made by the accused.
Be that as it may, Tpr Ramina confirmed that there was a pool of blood and the disturbance of the ground at the scene of crime. From there the party returned to the deceased's house.
According to Tpr Ramina he had learned from Chief Api Tsiu that the deceased had complained that after assaulting him the accused had searched his person
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and taken away his money and a watch. That was confirmed by Chief Api Tsiu who told the court that it was Monyamane Lekulana who had reported to him that the deceased had made the complaint. He did not, however, remember whether it was in the morning when they proceeded to the scene of crime or at the home of the deceased after they had returned from the scene of crime.
In any event Tpr Ramina testified that as a result of what Chief Api Tsiu had told him he searched the accused and found a purse which was hanging around his neck. It contained an amount of M190.79 which he handed in as exhibit at the Preparatory Examination. That is, however, denied by Chief Api Tsiu according to whom he himself searched the accused and found on him the purse which he handed to Tpr Ramina. He conceded that when it was opened the purse was found to contain some money. The amount was however, M180.79 and not M190.79.
This money (180.79) was by consent handed in as exhibit in this trial. It was contained in an envelop. When the envelop was opened it was found to contain M180.79 and not M190.79. I have also checked the deposition of Tpr Ramina at the proceedings of the Preparatory
Examination and found that he told the Magistrate's Court that he had in fact received the money from Chief Api Tsiu. That being so, it must be accepted that the deposition of Tpr Ramina at the Preparatory Examination
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confirms the evidence of Chief Api that he is the one who searched the accused and found the money which he handed over to the police officer. I am, therefore, inclined to accept as the truth the story of Chief Api Tsiu and reject as false Tpr Ramina's version on this point.
According to the evidence of both Tpr Ramina and Chief Api Tsiu when he was question on how he had acquired possession of the money the accused explained that it was part of an amount of M200 he had recently received from Chief Api as compensation after his crops had been damaged by animals. Chief Api confirmed that about three days earlier he had in fact given to the accused M200. It was compensation paid by the owner of animals which had damaged the crops on the field that the accused was ploughing on half-share with one 'Matebello. Asked whether or not he had given 'Matebello her half-share of the compensation money the accused replied in the negative. However a few days later Chief Apt inquired from 'Matebello whether it was true that she had not received her half-share of the compensation money from the accused and she replied that she had received her half-share of the money.
'Matebello was, however not called as a witness in this trial and what she is alleged to have told Chief Api is hearsay and of no evidential value.
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Coming back to his evidence Tpr Ramina told the court that after the accuseds person had been searched he and Chief Api together with other village men proceeded to the home of the accused where a pair of tender shoes was found hanging on a tree. It had clearly been wads washed and was placed there to dry. What appeared to be blood stains was still visible on one of the shoes. He took possession of the shoes and handed them in as exhibit at the Preparatory Examination. He likewise took possession of the clothes that the deceased had been wearing and handed them in as exhibit at the Preparatory Examination.
Tpr Ramina accompanied the body of the deceased to Mashai village and it sustained no additional injuries. From Mashai village the body was transported to Paray hospital. No post mortem examination was carried out because the medical doctor at Paray said he had no time to examine dead bodies. It later turned out, however, that Tpr Ramina did not in fact accompany the body of the deceased from Mashai village to Paray hospital. He has, therefore,no personal knowledge of what the medical doctor at Paray hospital said. On his return from the village of Ha Motake he brought the accused to Mashai police station where he cautioned and charged him.
Monyamane Lekulana did accompany the body to Paray hospital. He admits that no post mortem examination was carried out on the deceased's body which was released.
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to him for burial. He was, however, told at Thaba-Tseka police station that the vehicles were out of order and the body of the deceased could not be transported to Maseru for post-mortem examination. Again, no police officer was called from Thaba-Tseka to testify to this effect.
The evidence of D/Tpr Letsoepa was that he met the accused at Mashai police station. Following information he had received from the accused, he proceeded to Ha Motake with the accused person and another police officer. That was on 28th May, 1987. When they passed a place called "Khorong" the accused showed him the scene of crime. According to him D/Tpr Letsoepa could still see the disturbance of the ground and many foot prints at that spot.
I must, however, mention that this witness admitted that he had been sitting in the court room for a greater part of the hearing in this trial. I am not prepared, therefore, to attach much value to his testimony from the witness box.
There can be no doubt on the evidence before this court that the deceased Tseliso Lekulana passed away on the night of 14th May, 1987. The question that arises for the determination of the court is what was the cause of his death. Although there is no medical evidence to enlighten the court in this regard, there
is evidence that on the morning of 14th May, 1987 Tseliso
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(deceased) left home for the local shop at Mashai there he was to pay for a saddle that had been sent there for repairs. There is no suggestion that he was complaining of any illness. It can, therefore, be safely assumed that he was in the best of health.
However, on the night of the same day, 14th May, 987, Tseliso was found at a place called "Khorong" with multiple bleeding wounds on the head, shoulders, arms, hips, knees and legs. He had clearly been brutally assaulted and could not even mount on a horse. He had to be carried in a blanket to his house in the village where he shortly passed away. Despite the absence of a medical evidence it seems to me the only reasonable inference to be drawn, in the circumstances, is that Tseliso died as a result of the injuries he had sustained.
Assumming the correctness of the finding that the deceased, Tseliso Lekulana, died as a result of the injuries he sustained on the night of 14th May, 1987 the salient question is whether or not the accused is the person who inflicted those injuries upon him and therefore brought about his death. There is no direct evidence in this regard and the court has only circumstancial evidence to rely upon.
There is evidence that in 1984 the accused was assaulted by the deceased who was subsequently cri-finally charged and convicted before a court of Law.
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The accused then sued the deceased for compensation before the Local Court of Mashai. When he was served with the civil summons the deceased wanted to assault the accused on 11th May, 1987 and again on 13th May, 1987, The accused was naturally very unhappy with the attitude of the deceased, He had, therefore, a motive to assault the deceased. Indeed, there is evidence that accused threatened that he was going to fight and kill the deceased in a secluded place where they would be only two and no one to give evidence. The threat was made not only in the presence of the Court President of Mashai Local Court end the other officials of that court but also in the presence of Chief Api Tsiu who even reprimanded the accused for threatening to kill the deceased.
There is also the evidence of Mokete Motake, the headman of both the deceased and the accused that on the evening of 14th May, 1987 he was returning home from Sehong-hong when he met the accused who was obviously looking for the whereabouts of the deceased. According to him Mokete Motake told the accused that the deceased was still at the local shop of Mashai. Shortly thereafter the deceased was found fatally wounded at a place celled "Khorong" which is a place between the local shop of Mashai and his home village at Ha Motake.
Considering the fact that on 13th May, 1987 the accused threatened before Chief Api Tsiu that he was
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going to fight and kill the deceased, on 14th May, 1987 the accused repeated before the officials of the Local Court of Mashai the threat that he was going to fight and kill the deceased, on the evening of the same day 14th May, 1987 the accused was looking for the whereabouts of the deceased and he was, indeed, told by Mokete Motake that the deceased was still at the local shop, it seems reasonable to infer that after parting with Mokete Motake the accused went to "Khorong" where he waylayed and brutally assaulted the deceased as he passed on his way home from the local shop. The question I have earlier posted viz. whether or not the accused is the person who inflicted injuries on the deceased and brought about his death must therefore be answered in the affirmative.
It may be mentioned that according to the evidence of Chief Api Tsiu and, indeed, corroborated by that of Tpr Ramina the majority of the most serious wounds inflicted on the deceased were on his head which is a vulnerable part of a human body. In brutally assaulting the deceased as he did, on the upper portion of his body, the accused was aware that death was likely to result. He nonetheless, acting reckless of whether or not death did occur. That being so, I come to the conclusion that in assaulting the deceased, as he did, the accused had the requisite subjective intention to kill, at least in the legal sense. I would accordingly find him guilty of murder as charged.
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As regards the charge of robbery, it is to be observed that when he left home in the morning of 14th May 1987 the deceased is alleged to have taken M100 with which he was going to pay for a saddle which had been sent for repairs at the local shop of Mashai. There is no evidence that the deceased did not use that money to pay for the saddle.
In his own mouth Monyamane Lekulana told the court that he had not been to the shop to find out whether or not the deceased had paid for the saddle with the M100. He only learned from a certain person that the deceased found that the saddle had not been repaired and could not therefore pay for it. That person was, however, not called as a witness. What he allegedly told Monyamane is, therefore, inadmissable hearsay evidence.
There is also evidence that when he was found badly injured at "Khorong" the deceased told Mohau Pitso and Monyamane Lekulana that after assaulting him the accused searched him and took away his money and watch. It was argued that what the deceased said to both Mohau and Monyamane was a dying declaration which is an exception to the rule of hearsay evidence and, therefore, admissable. There was, however, evidence suggesting that after he had been assaulted at the scene of crime the deceased moved on his own to another spot some distance away. It was from that place that he called at Mohau
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as he was passing on the way from Sehonghong. When Mohau came to him the deceased explained in clear details what the accused had done to him. Nowhere in his statement did the deceased indicate that he was apprehending death.
Both Mohau and Monyamane may well be telling the truth in their evidence that the deceased told them 1 hat after assaulting him the accused took away his money and watch. I am not convinced however, that that was a dying declaration and therefore, an exception to the rule of hearsay evidence. It is inadmissible hearsay evidence upon which the court cannot base this judgment. The deceased may have still entertained the hope that he was going to recuparate and continue his life despite the injuries he had sustained. In any event assuming the correctness of the deceased's statement that it was only after assaulting him that the accused searched him and took away his watch and money that will not amount to robbery. It will be theft common.
However, the difficulty, as I see it, is that when. the M180.79 was found in his possession the accused explained that it was part of the M200 which Chief Api Tsiu had lawfully given to him. The Chief himself gave evidence and told the court that he had in fact given the accused an amount of M200 about three days before that day. The accused's explanation that the M180.79 found in his possession was part of the M200 he had admittedly received from Chief Api was in the circumstances a reasonable one. The onus was on the Crown to prove
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beyond a reasonable doubt that the accused's explanation was false. In an attempt to do so the crown adduced the evidence of chief Api who testified that the accused was supposed to have shared the M200 with 'Matebello. Although the accused said he had not yet given 'Matebello her half-share of the money, 'Matebello subsequently told chief Api that she had, in fact, received her half-share.
As it has been pointed out earlier. 'Matebello was not called as a witness in this trial. What she is alleged to have told chief Api is, therefore, inadmissible hearsay evidence. That being so, it seems to me that the crown has failed to prove beyond a reasonable doubt that the money found in the possession of the accused belonged to the deceased from whom he had stolen it.
By and large, I have a doubt that the accused has committed the offence against which he stands charged under count II. In our law the benefit of such a doubt must always be given to the accused person.
I according find the accused not guilty and discharge him on count II.
Both my assessors agree.
B.K. MOLAI
JUDGE
28th October, 1980
For the Crown : Miss Moruthoane
For the Defence: Mr. Monyako.
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EXTENUATING CIRCUMSTANCES
Having convicted the accused of murder the court is now required to state whether or not there are any factors tending to reduce the moral blameworthiness of his act.
In this regard I have accepted the evidence that in 1984 the accused was assaulted by the deceased. The accused subsequently sued him civily for damages. When he was served with summons commencing the civil action the deceased attempted on two occasions to assault the accused who had to run away.
In my view the deceased's conduct amounted to a provocation. The provocation was, however,not such that it could exonerate the accused
or reduce murder to a lesser offence. It was correctly not considered for purposes of a verdict. Nonetheless, it must be taken into account in determining the existence or otherwise of the extenuating circumstances.
I have also found on evidence that the accused had assaulted and injured the deceased at "Khorong". There is, however, no evidence that after assaulting and injuring him the accused left the deceased dead at "Khorong". On the contrary there is evidence that after he had been assaulted and injured at "Khorong" the deceased was still able, not only to move for some distance away from the spot where he had been assaulted
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but also, to speak to both Mohau and Monyamane. That being so, it may well be that the accused thoroughly beat up the deceased but had no intention to actually on kill him. For that reason I found,on evidence,that in assaulting the deceased, as he did, the accused had intention to kill in the legal sense. That, in itself, is an extenuating circumstance.
In the premises, I come to the conclusion that extenuating circumstances do exist in this case. A proper verdict is therefore, that the accused is guilty of murder with extenuating circumstances.
Both my assessers agree. SENTENCE
In mitigation of sentence the court is invited to consider on behalf of the accused person that he is a first offender, a married man with a wife and minor children to maintain and that the deceased who was, in fact, his close relative had provocked him. It is further pointed out that the fathers of accused and the deceased are brothers. They are now sitting together in the court room and certainly do not approve of what either the deceased or the accused has done.
True enough, the accused has committed a serious offence which calls for a commensurately serious
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punishment. It must, however, be borne in mind that the unfortunate thing is that in punishing the accused, by sending him to gaol, it is his innocent wife and minor children who are going to suffer most. Our prisons arc not concentration camps where people are tortured. They punish people like the accused by merely depriving them of their liberty. Once he is within the four walls of the prison the accused will be afforded a humane treatment. He will be asured of three meals a day, free lodging, free clothing and free medical attention. His wife and minor children, who have committed no wrong at all, will, however, be without a bread winner. In all probabilities it is the accused's father and his brother, the deceased's father, who will have to carry the burden of maintaining the dependents of the accused.
In my view, the thought that he has killed the deceased, his close relative is going to trouble the conscience of the accused for the rest of his life. That, in itself, is punishment enough .
I would, in the circumstances, sentence the accused to serve a term of three years imprisonment. It is ordered that the amount of M180.79 found in the possession of the accused should be given back to him. The deceased's clothes should, however, be released to his father,Monyamane Lekulana.
