CRI/T/57/89

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

SIMON
MABULA

Held at
Quthing

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 14th day of December
1989.

The
accused is charged with the crime of murder following the assault on
Monyooe Tlaitlai the deceased who died on 22nd October
1988.

The
defence admitted the depositions of P.W.l D/Police-Woman Letele and
P.W.5 Rasilasi Tlaitlai.

P.W.2 No.
5648 D/Tpr Tseloa gave oral testimony showing that he met the accused
at Tsakholo Police post on 21-11-88. P.W.2 was stationed
at that
Police Post at the time.

He was an
investigating officer into the death of the deceased in this case.

When the
accused came on that day to report himself P.W.2 cautioned and warned
him.

The
accused gave his explanation regarding the ...death of the deceased.
At the end of this he was given

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the
charge for the murder of the deceased.

Then on
24-11-88 P.W.2 went with the accused to the accused's village at
Matsoseng where in the presence of P.W.3 Chieftainess Maborife

Matsosa the accused acknowledged the stick brought there by the
accused's brother one Motlatsi.

P.W.3 had
been sent for by P.W.2 who had asked Tiheli to summon P.W.3 from the
communal garden where she had been working to come
quickly to her
home at the chief's place P.W.3 then handed the stick to P.W.2 who
left with the accused thereafter.

Evidence
shows that it was the accused who had asked his brother where this
stick was and asked him to bring it along.

An eye
witness to the assault is P.W.4 Taelo Mosehle who is an
unsophisticated illiterate whose prime occupation consists in tending

stock. Although his estimates of the distances are no exception to
the usual mind- boggling inaccuracies purveyed usually by Basotho

witnesses but more particu­larly by illiterates of this society I
have no doubt as to P.W.4's perception of events which took
place on
the day in question.

On that
day in the afternoon he had been to the mill to grind corn at
Lekhalong some 10 km. from this witness's home at Ha Mpeli.

A good
distance away from Ha Majake P.W.4 saw the accused assault the
deceased with a stick on the head. He saw him hit the deceased
and
felling him though on account of the distance separating this witness
from the scene he was not able to see how many times
the blows had
been delivered before the deceased fell.

However
the witness is positive that only one blow

3

was
delivered after the deceased had fallen to the ground. There after
the accused came towards P.W.4 leaving the deceased fallen
at the
scene.

Then the
accused who was pulling a horse walked hurriedly passed P.W.4 in the
opposite direction. P.W.4 recognised the accused as
the man he had
seen once a month back at the latter's home at Matsoseng. Otherwise
P.W.4 knows the accused's brothers very well
and observed that their
features bear some similarity to the accused's.

On the
previous occasion when P.W.4 first met the accused at the latter's
home he greeted him and the accused requited the greeting
warmly. But
on the day of the incident they did not greet each other.

P.W.4
testified that from the time he saw the belabouring take place up to
the time when he and the accused went past each other
heading in
opposite dire­ctions nothing had obscured his view from the
accused nor had there been any people who went past
him in the
opposite direction before the accused did.

P.W.4
came to the scene where he found the deceased lying on the ground and
without touching him observed that he had a wound on
the head.
Thereafter P.W.4 went to report the matter to one Mr Bulara. The
deceased was not responding when P.W.4 tried to speak
to him.

P.W.4 had
observed that during the encounter the deceased was trying to defend
himself though he was unarmed.

When he
came to the scene P.W.4 saw a manufacture -made whitish stick lying
next to the deceased.

He had
not been able to see if the accused was carrying anything in his
hands at the point when he and the accused went past each
other in
opposite directions because the accused was pulling a horse and
walking hurriedly. It seems therefore that P.W.4 didn't
pay any
attention whether the accused was carrying anything.

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The
admitted medical report shows that the skull of the deceased had
suffered a communited depressed fracture that led to massive

intracranial haemorrhage. With regard to the external appearance the
post-mortem shows that there were bilateral burr hole wounds.
There
were skin lacerations over the left skull.

From the
admitted evidence of P.W.5 Rasilasi Tlaitlai the deceased's son, it
appears that the deceased survived the day of the assault
and died
the following day in Hospital in Maseru.

P.W.4 who
witnessed the assault from a distance and identified the assailant
indicated that when he first saw the belabouring he
was some 4 km
away. He could neither at that distance identify the assailant nor
the victim. But he took a short time to reach
the scene because he
was riding on a donkey which raced there an he thus was able to
recognise the accused when he came face to
face with him some 200
paces away from where the deceased was lying.

The
accused gave his evidence in which he denied having assaulted the
deceased on the day of the incident or at all. He said it
was his
brother who had assaulted the deceased. It was however not put to
P.W.4 until after the latter was recalled that this was
the case. It
is thus a clear incident of an after-thought in these proceedings.

In any
event P.W.4 stated that he had witnessed this assault and nothing had
obscured his view from the assailant and the victim
as he was
approaching the scene till recognising,when he reached it,who the
assailant and the victim were.

The
accused suggested that P.W.4 might have mistaken the incident of
movements wherein his brother Tiheli and the accused were helping

raise the deceased for an assault on the deceased. But P.W.4 had in
his uncontroverted

5

evidence
indicated that apart from the accused and the deceased there wasn't
anybody at the scene. He was able to see the scene
as he described it
because it lay in a horizontal plane obstructed by no objects. Indeed
it was never put to P.W.4 that the accused's
brother was at the scene
of the incident when P.W.4 cade his observations.

In fact
the accused's version is self-contradictory because he also said
through questions put by his counsel and later confirmed
by the
accused himself that by the time P.W.4 pitched on the scene the
deceased had long been removed from there.

I have no
hesitation in rejecting the defence version as false beyond
reasonable doubt in this regard.

Much was
made of the question of the accused's identity by P.W.4. But the
accused himself stated that he had seen this witness before
at
Matsoseng village although he didn't think the witness would have had
a lasting impression of him as in any case the witness
was still a
small boy growing up in the village. He went further to say P.W.4 did
at one stage live in this village.

P.W.4 on
his part said he had seen the accused a month back prior to the
incident. P.W.4 knew the accused's brothers and is able
to tell them
apart.. The accused admits that although he resembles his brothers in
features the one in question i.e. Tiheli is
much lighter. Thus it
would seem that because P.W.4 in any event said he is more familiar
with the accused's brothers than he is
with the accused there is no
reason why he can mistake the accused for any of them.

Because,
perhaps, of over-caution or unease that investigating officers felt
an identification parade was conducted wherein P.W.4
was asked if he
could point out the man he had seen molesting the deceased.

P.W.4 is
said to have done this with ease. He

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actually
told me he identified the accused not by his clothes but by the
correspondence of the accused's facial appearance with
P.W.4's mental
picture of him since the day he saw him immediately after the
latter's assault on the deceased.

P.W.7
D/Sgt Mofolo gave her evidence as to how she conducted the
identification parade. I have no doubt that her manner of conducting

the parade conforms with guidelines laid down in Mohajane vs Rex C of
A (CHI) No. 7 of 1984 (unreported).

The
witness herself gave her evidence in a manner that left me in no
doubt that nothing in it could even remotely prejudice the
accused in
any manner.

Section
238(1) provides that

"any court may convict any person of any offence alleged against
him in the charge on the single evidence of any competent
and
credible witness."

I have no
doubt that the evidence of P.W.4 as a single witness who observed the
occurrences at the scene was telling this Court
the truth. He had no
motive to lie. He was candid and frank if rather annoying by having
to time and again be reminded to speak
up. He bore the accused no
grudge.

The
accused on the other hand had some motive to assault the deceased who
had come there to protest and drive the accused's animals
from
tresspassing in his field and impound them. The deceased had
previously impounded the accused's animals.

The
accused cut a pathetic figure in the witness box by relating a whole
tissue of lies in the strands of which he was inextricably
enmeshed.

I reject
his evidence as not only improbable but as demonstrably false beyond
reasonable doubt. D.W.2 Tiheli Mabula's evidence added
nothing of
substance to detract from the credible evidence led for the crown on
which I

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repose
reliance.

D.W.2
satisfied me that P.W.4 knew him very well and that there was no way
he could mistake the accused for him. I am satisfied
by D.W.2's
testimony in support of this view because he furnished the
information that P.W.4 was at one time hired as a herd-boy
at
Matsoseng and that is how he knew D.W.2 so well and his brother
Motlatsi. It is clear therefore although he didn't see the accused

that often he also knew him well enough not to mistake him for any
other person.

I have
been referred on behalf of the accused to CRI/T/3//86 R vs Mahase
(unreported) by Sir Peter Allen.

But as I
have indicated above the identification parade was a superfluous
exercise motivated by over-caution on the part of the
police because
the evidence of P.W.4 was quite sufficient to establish the identity
of the accused.

The
accused is accordingly convicted of murder as charged.

My
assessors agree.

Sentenced
to 13 years' imprisonment.

JUDGE.

14th
December, 1989.

For Crown
: Mr Qhomane

For
Defence : Mr Fosa.