CRI/T/71/89

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MOZWANDILE
RANKALI

PHELESELE
RANKALI

MOFEREFERE
RANKALI

SEABATA
MAFEREKA

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla in the 20th day of November
1989.

The four
accused named above are charged with the murder of Mamotjejoa
Nokotjoa who died on 1st March 1989 following assaults on
her caused
by sticks wielded by all the accused and a knife used by accused
number two.

The
entire preparatory examination record was admitted on behalf of all
the accused by their counsel. It was conceded that minor
differences
exist between some of the depositions in the P.E. and the brief that
the accused's counsel holds. However the court
was assured by the
accused's counsel that these discrepencies would not affect the tenor
of the case.

The
evidence of the following witnesses at P.E. was dispensed with as
unnecessary for the determination of this case:-

P.W.5
Mamohlomi Rankali at page 7 of the P.E.

P.W.7
Simon Nokotjoa at page 9 of the P.E.

P.W.8
Tokelo Sofonia at page 10 of the P.E.

2

P.W.9
Detective/Tpr Moqhobai at page 11 of the P.E.

P.W.10
D/Tpr Letsoepa at page 12 of the P.E.

and

P.W.l1
Tpr Possa at page 12 of the P.E. record.

The court
was asked to consider as relevant the P.E. depositions of :-

P.W.1 Dr
Pelletier

P.W.2
Lieketseng Rankali

P.W.3
Mamophoiwilo Nongotjoa

P.W.4
Mamokhatla Molotjoa

P.W.6
Mamaoala Nongotjoa

and

P.W.12
Ndokazoe Nkotjoa

These
depositions were accepted by the crown read into the recording
machine and made part of the instant proceedings.

P.W.1's
testimony at P.E. was that he examined the dead body of the deceased
and formed the opinion that death had occurred two
days before the
examination. He formed the opinion that death resulted from a massive
skull fracture behind the left ear. This
fracture resulted in brain
damage. P.W.1 also observed numerous other-injuries the most serious
of which was a stab wound on the
left lung which had collapsed. The
head injuries were caused by a blunt object while the one on the
colla­psed lungs-was caused
by a sharp object.

P.W.2 is
12 years old. Having been warned to tell the truth at P.E. she
related her story which showed that three of the accused
are related
to her. Accused number 2 is her father. Accused number 1 is her
father's brother while accused number 3 is her father's
elder
brother. Accused 4 is a fellow villager.

P.W.2
attends school at Matobeng and is in class five.

One day
while-P.W.2 was at school she fell ill. Her teacher-carried her into
a class-room. Her fellow pupils were sent to fetch
her mother from
home. The

3

mother
came and carried P.W.2 home where she was made to sleep.

In her
sleep P.W.2 saw the deceased and one Thembi standing before her and
telling her to go with them to the mountain. In this
vision the
deceased was not wearing any shoes nor anything on her head. Thembi
was wearing a dark blanket and an ugly hat. P.W.1
was afraid of the
two who she says were wearing ugly dark clothes. She told her parents
about this incident but was not certain
if they had seen what she saw
in their presence.

On the
following day this vision occurred again to P.W.2 who saw the
deceased wearing a dark dress, no hat, no shoes but this time

carrying a knobkerrie while one Ntombazana Nokotjoa was carrying a
black bucket full of black water. One of the characters in P.W.1's

vision was carrying a stick used for stirring mealie pap. She drew
water from the bucket and poured it on P.W.1's face.

These
characters asked P.W.2 to go with them to the mountain. During the
day they disappeared.

P.W.2
heard during the day that the deceased had died and thereafter she
felt better.

She was
never sent for any medical treatment. She took some time before going
back to school because she couldn't walk as her waist
was painful.

P.W.3
testified at P.E. that the deceased was her aunt. This witness was at
her home on 1st March 1989 when accused 1 called to
her shouting that
a mysterious occurrence should be seen by all. When P.W.3 came to
Mathongoane's home she heard P.W.2 crying and
saying Mamotjejoa the
deceased was killing her. Accused 1 then asked that Edward the
chief's secretary should detail messengers
to go and call the
deceased. The messengers went but came back shortly saying the
deceased refused to come along with them because
on a previous
occasion

4

when she
had been called to Abraham's place in similar circumstances she
barely managed to escape with her life.

Accused 1
then said he was going 0tn fetch the deceased himself. Accused 1 was
carrying a timber stick. He came to the deceased,
held her by hand
and told her to come along with him to Mathongoane's. He also asked
if she didn't hear that she had been called.
P.W.3 heard the deceased
say that she was afraid because she had heard her name being
mentioned apparently by people who had gathered
at Mathongoane's
which is only about 70 paces away from the deceased's home. Then
accused 1 hit the deceased with the stick on
the head. Accused 1's
mother went to stop him from assaulting the deceased, and urged that
resort should be had to the law. The
deceased also said it would be
advisable to have a Sesotho doctor called in order to smell out
whoever was bewitching the child
P.W.2. She also told accused 1 that
she knew nothing about what was ailing P.W.2 and was not respon­sible
for it.

Then
accused 2 came to his house and entered it after dismounting from his
horse and inquired what the matter was. He came out carrying
a timber
stick and made for the deceased's home. When the deceased saw him she
ran into her house. Accused 2 roughly opened the
door and forced his
entry.

Accused 3
and 1 also entered following accused 2 in that order. The accused
deny that Thonkozile stopped Mamohlomi when the latter
went to stop
the assault on the deceased.

P.W.3
also testified that after the stick clicks had stopped the accused
came out of the house where the deceased had taken refuge,
but
accused 2 on coming to the door way took out a knife, opened it with
his teeth and turned back into the deceased's house. It
is at this
stage that P.W.3 ran to her own home.

P.W.4
testified at P.E. that on 1st March 1989 she

5

was at
her home when headman Edward's messengers arrived. These were
Banbilitje Nokotjoa, accused 4 Seabata Makeka and Leabua Mokhehle.

These messengers were sent to the deceased who is P.W.4's
mother-in-law. The messengers told the deceased that P.W.2 was
mentioning
the deceased's name, whereupon the deceased suggested that
she would rather go if summoned by Chief David for she felt unsafe as

she was not used to the family where she was being called to. P.W.4
testified that the deceased said she was afraid for her life
because
she nearly lost it pre­viously when she complied with a similar
command. Then accused 1 came and hit the deceased with
the stick on
the head. Banbilitje reprimanded him for assaulting a person at her
own home. The accused's mother stopped him but
Thokozile said the
mother should have complied with the suggestion that she was to stay
at her home for Thokozile wanted her brothers
to finish the deceased
off. This is denied by the accused.

P.W.4's
evidence corroborates that of P.W.3 in all material respects. She
testified at P.E. that the deceased suggested that a Sesotho
doctor
be called in order to determine if she was the one who was
responsible for P.W.2's torment.

Then
accused 2 and 3 arrived at the house where the child was kept. They
dismounted their horses and after a short interval headed
for the
deceased's home. The deceased seeing them approach ran into her son's
house.

Accused 2
told her to open and said she was a devil. He forced the door open
whereupon accused 1 entered after him followed by accused
3. The door
closed behind those of the accused who were in that house. Then P.W.4
heard the deceased cry amidst sounds of sticks.
The door opened to
let accused 4 in and closed behind him whereupon further sounds of
sticks were heard.

Thereafter
the four accused came out but accused 2 while at the foreground
opened his knife and went back into the house where he
stabbed the
deceased and came out.

6

P.W.4
found a pool of blood around where the deceased was lying. The
deceased had wounds on the body and fingers. Each of the accused
was
armed with a timber stick similar to the ones observed before Court.

P.W.6's
evidence is to a large measure the same as that of P.W.3 and P.W.4.
She also testified at P.E. that the deceased said to
Thongozile who
had said the deceased should go and listen to P.W.2's utterances,
that she was afraid to go there because accused
1 had already
assaulted her.

P.W.6
also said when the accused came out after assaulting the deceased
Thongozile asked them whether they had killed the witch
and said that
they should not leave the witch alive. She also testified in the
court below that no people came to the deceased's
rescue during the
assaults and that afterwards the deceased was left lying there.

P.W.12
testified that three of the accused are his uncle's sons. The
deceased was P.W.12's younger brother's wife. The deceased
was about
65 years old.

In the
afternoon of the fateful day P.W.12 heard accused 1 shouting and
saying people should come and see an incident at Mathongoane's
home.
Mathongoane is accused 1's father.

P.W.12
went to that place and found P.W.2 who rose and ran towards the door
shouting and crying "Mamohlejoa where do you take
me to?"

Accused 1
complained to P.W.12 that the deceased was refusing to come and hear
what P.W.2 was saying.

P.W.12
advised accused 1 to ask Edward the chief's secretary who performs
the chief's duties in the absence of the latter to order
that the
deceased be called. Edward then sent out the messengers referred to
earlier. The messengers came back without the deceased.

7

P.W.12
then advised accused 1 to take the matter to court. But accused 1
said he was personally going to fetch the deceased. His
mother tried
to stop him but he turned a deaf ear to her.

Accused 1
is said to have been very angry when he went to the deceased. P.W.12
followed him to the deceased 's home. On arrival
there accused 1 said
to the deceased "'Mamohlejoa lets go there" but she
refused. Then accused 1 caught hold of her blouse
and pulled her but
she escaped. Then he delivered a blow with a stick. The blow landed
on the hand with which the deceased was
protecting her head. Accused
1 said again that she should come along with him but the deceased
once more refused.

P.W.12
took the deceased into one of her huts and closed her in there. But
her daughter-in-law opened the door and said "mother
get out, I
want you to die here at your home." Accused 1 asked her to go
with him and when she refused he hit her on the head
with a stick and
she bled. P.W.12's attempts At saving the deceased were thwarted by
Mamaoala who kept pulling her out saying she
should rather die in her
own home.

Then the
other accused arrived in the order referred to above. P.W.12's story
lends support to that given by P.W.4 and 6. He also
said that accused
2 unclasped his knife and went back into the house when all others
had come out except the deceased. When accused
2 came out later
P.W.12 saw that the brown okapi knife that accused 2 was carrying was
blond-stained. Acccused 2 then collected
two pieces of his stick,
cleaned the knife by pulling it against his fingers, clasped it and
went away.

Accused 1
gave his evidence under oath. He is aged 28 and is married with two
children.

Accused
one told the court that he heard the evidence saying he had assaulted
the deceased and does not deny it;.

8

He
further said that P.W.2 fell ill and that she complained that the
deceased was the cause of her illness. It is common cause that
P.W.2
is accused 1's niece.

Accused 1
said this was not the first time that a complaint was raised about
the deceased's causing peoples' illnesses.

The
accused remembered an incident in which one Limakatso Mokhethi was
involved. It appears that Limakatso complained that the deceased
had
caused lightening to strike her.

However
accused 1 was quick to bring to the Court's attention that he was not
present when the alleged incident took place. He only
got to know
about it through letters he received from home in Lesotho while he
was at work in the Republic of South Africa. Thus
accused 1
acknowledged that he hadn't the personal knowledge of this incident.

He went
further to inform the Court of another incident which involved the
deceased's witchcraft practices.

He told
the court that a daughter of one of his brothers vanished in water.
Men set about looking for the child. Accused 1 was among
these men.

At the
end of the fruitless search when the search party returned home the
deceased asked whether they had secured that child and
then told no,
she said the child would never surface until and unless its parents
had come home from Durban. Indeed the child appeared
when the parents
arrived. The accused said that this incident made him feel angry with
the deceased for it became clear to him
the deceased had caused the
child's disappearance.

Accused
one said he believed that the deceased was responsible for the
disappearance of the child and furnishes a rather curious
reason for
so believing namely that the deceased when relating her story did not

9

sit down
but faced away from the people she was addressing as she stood at the
door.

The other
instance he related concerning the deceased's witchcraft involved the
news the accused received from Thembi's child the
granddaughter of
P.W.4 'Mamokhatla. This child told accused 1 that he had been
scarified under foot. The accused said that he discovered
that he had
been scarified while he was at the mines. He learnt from this child
when he came home that the deceased had sent her
from home to the
mines in the Republic to scarify him under font. He did not feel when
the scarification took place nor did he
the child effect it. He did
nothing about this incident but told the court that to date hie feet
are rotten underneath.

On the
day of the instant incident accused 1 was at home, He testified that
he was present in the house when P.W.2 complained that
she was seeing
the deceased. Accused 1 did not see the deceased though, nor did he
hear her speak to P.W.2 who claimed the deceased
was saying. she
should get ready to company her to the mountain with those dressed in
ugly dark clothes like the deceased's.

Accused 1
then called people to come and hear whet P.W.2 was saying about the
deceased. Many people came. Accused 1 estimated that
they could come
to 60 in number. The village headman was represented at this
gathering by Edward 'Muso. Edward then sent messengers
to go and call
the deceased to the place where P.W.2 was complaining about her. The
deceased refused to come. Accused 1 decided
to go and fetch the
deceased. He told the chief's representative thus. He said he was not
in a happy mood when he declared his
intention to go and fetch the
deceased. He said he was extremely angry.

Accused 1
came to the deceased who was sitting outside her house. He asked her
to come along with him to hear for herself what P.W.2
said about her.
The deceased refused to coma saying she didn't know how to undo but
could only do.

10

Significantly
none of the crown witnesses who were present at this stage of the
events made mention of what accused 1 claims the
deceased said
concerning this implicit admission by the deceased that she had in
fact bewitched P.W.2 but was unable to undo the
spells cast in
bewitching her.

Accused 1
said it was immediately after the deceased uttered these words that
he hit her with the stick. He denied that the deceased
told him that
it would be better if a Sesotho doctor were called to fathom if she
was responsible for the child's troubles. I may
just indicate that I
reject accused l's version in favour of the crown's not only in this
respect but also reject accused 1's testimony
to the effect that the
deceased said she could only do but not undo.

Accused 1
admits the evidence that P.W.12 tried at least twice to stop him
assaulting the deceased. He also told the court that
his own mother
pleaded with him when he left home intending to fetch the deceased
and did not stop him when he was at the deceased's
home where it was
P.W.12 who was trying to stop him assaulting the deceased and no one
else.

Accused 1
said that when P.W.12 stopped him he obliged and went to accused 2's
home. This home was estimated at between 40 to 50
paces. I accept the
testimony therefore that a person standing outside accused 2's place
can see and hear all that takes place
at the deceased's house. Yet
none of the people gathered at accused 2's place came to the
deceased's rescue even though they saw
that she was attacked first by
accused 1 and later by all the accused facing the charge for her
murder.

It is
accused 1 who reported to accused 2 about what P.W.2 was saying.
Accused 2 also satisfied himself by listening to the child
and
hearing from her that the deceased was responsible for her ailment.

Then
accused 2 followed by accused 3 went to the deceased's

11

home
where they were later joined by accused 4.

The
deceased ran away when she saw accused 1 and 2 approach her home.

They
forced their entry behind the deceased who had sought refuge in one
hut and belaboured her.

Under
cross-examination accused 1 said he knew the child who scarified him
under foot. He said he subsequently discovered that she
had scarified
him; for the child told him she had been sent by the deceased to
scarify him. Accused 1 said he was not in the habit
of walking bare
footed. The court took a look at the soles of accused 1's feet and
saw that he had some irregular horny protuberances
surrounded by some
tender scars which are not inconsistent with attempts at crudely
removing those horny or corn-like protuberances.

He also
said in saying that the deceased should let herself be killed in her
premises he understood 'Mamaoala to mean that she should
in fact be
killed for accused 1 knew that 'Mamaoala had difficulty begetting
children and that the deceased was to blame for that.
He was not
aware though of any ill blood between the deceased and 'Mamaoala.
However he knew that the deceased had taken away 'Mamaoala's
panty.

It is
regrettable that 'Mamaoala gave no evidence before this court for she
might have thrown some light about what she meant by
saying the
deceased should not take refuge into one of the houses which
according to one of the witnesses belonged to her son.
Thus the
possibility cannot be excluded that 'Mamaoala meant that the deceased
should rather get killed in her own hut than in
'Mamanala's.

Accused 1
told me that he didn't see this panty he was talking about. When
asked who produced it he said a witch doctor Mohlahlo
did. Asked if
he himself saw it he said he never. Nor did 'Mamaoala complain to him
that the deceased had taken her panty. Asked
then from whom he heard
that

12

'Mamaoala's
panty had been taken by the deceased accused 1 failed to disclose the
identity of his informer.

Accused
2's version is not different from accused 1's in material respects.
He said he believed what P.W.2 was saying even though
she is only 12
years old and that she appeared to be mental.

Under
cross-examination he said his intention in going to the deceased's
home was to call her to the child who was complaining about
her.

He
explained that he took a stick when going to call this 65 year old
lady because he had been to Khohlong carrying it.

Asked why
he didn't leave the stick at his home via where he had gone before
heading for deceased's he said he hadn't time to sit
at home moreover
he didn't trust the deceased. He said he didn't trust her because he
had heard that she was a witch. He however
conceded that the stick he
was carrying could not prevent the deceased bewitching him.

He denied
though that when setting out for the deceased: home he had already
intended killing her. He was hard put to it to say
why he felt he
should use the stick when even he alone would have managed to
overpower the deceased and if need be drag her bodily
to where she
had been asked to go.

Asked why
accused 2 did not pull the deceased he said the deceased had gripped
at the door and could not be moved. He however conceded
that he did
not tell his counsel this piece of fresh evidence in his defence. He
admitted that he stabbed the deceased on the left
side of her rib
cage after all others had left the deceased and gone out. He said he
was not aware that the stab wound was next
to the deceased's heart
region. He said that all the other accused had used sticks in
assaulting the deceased and in such a manner
that the sticks were
even striking at each other.

13

Counsel
for the crown pointed nut that the accused had genuine belief in
witchcraft. He asked the court to consider if provocation
as laid
down in the Homicide Amendment Proclamation played any role in the
instant case.

I was
referred to Rex vs Biyana 1936 E D L 310 at 311.

I was
also referred to Mona & Another vs Rex C of A (CRI) No. 3 of 87
(unreported) at 6. I also had occasion to look at and
consider S vs
Fundakubi 1948(3) SA 810.

Mr.
Mokhobo submitted that the attack was carried out in the heat of
passion. He drew attention to the fact that the accused are
related
to the deceased. He pointed out that the deceased was belaboured with
sticks because it was believed by the accused that
she had bewitched
P.W.2. Having considered the relevant provisions of our law on
provocation Mr. Mokhobo submitted that the accused's
acts do not bear
any reasonable relationship with the offence hence provocation cannot
avail the accused.

In
response Mr.Magutu made reference to the famous New Salem Witches'
Trials in 1692 which centred around the shrieks of little
girls. He
pointed to the irony in the cause for this tragic death now under
trial, that it resulted from the hysterical shriek
of the little girl
Lieketseng aged 12.

Mr.
Magutu made an impassioned plea to the court to try to get schooled
in the meaning of witchcraft. He referred me to Witches
and
Historians Interpretation of Salem at 2 where it is asked of little
girls who usually gave evidence resulting in the execution
of witches
once convicted : "Had the afflicted girls been lying, or were
they actually the victims of some sort of hysteria?"

It
Appears that out of a close study of witchcraft in Salem the
following points emerge:

1. Witchcraft
   was a phenomenon acted nut at village level involving people on the
   lowest rung of the social ladder. The instant case
   can boast of no
   different ones,

   
   

14

2. Unless
   one understands history sociology and psychology, full comprehension
   of the sincerity of believers in witchcraft cannot
   be possible.

   
   

3. Irrationality
   in human behaviour continues, despite the 20th Century's belief that
   it

   
   

is the golden age of reason. When considering that the mass murder of
six million Jews in Hitler's Germany was effected within
four years
it becomes clear that our sense of reason and justice calls for
scepticism.

Indeed
Mr. Magutu submitted that the dark aspects of our social and cultural
life are bound to make us blush. He submitted that
belief in
witchcraft will out-live science and civilisation. Hence it behoves
us to try to understand it. He pointed out that the
Church deals with
what ought to be and not with what is. He further pointed nut that
the body of sophistication which regards religion
as the basis of our
morality is itself regarded as superstitious.

I was
referred to the works of Roger Hart; Witchcraft published by Wayland
Publishers in London and G.P. Putnam's Sons in New York.
At page 63
referring to the year 1199 as the mile stone which marks the start of
the combat of heresy by the Holy office, Roger
Hart says

"From that time until its decline in the late 1600's and early
1700's, the number of executions for witchcraft reached the
appalling
total of 100,000. Of these only 5000 or so took place in the British
Isles; most took place in Germany, which was un­rivalled
in
Europe for the barbarity shown to its accused. But France, Italy,
Spain, Scandinavia and other parts of Europe, too, have a
record of
considerable injustice, prejudice and cruelty....

The history of witchcraft in France went back at least to 1398, when
the University of Paris had declared that the witches' pact
with the
devil was not merely superstitious magic, but religious heresy."

Mr.
Magutu pointed out that although our rational system is said to be
based on science the last executions for witchcraft in various
parts
of the world occurred but a day or so ago for hardly any can boast
that the last execution of witches occurred more than
three hundred
years

15

ago. For
instance the last official execution for witchcraft in Germany was in
1775. The victim was Anna Maria Schwagel at Kemptan
in Bavaria. The
last execution for witchcraft in France was in 1745. The victim was
Father Lovis Debaraz at Lyons. All witchcraft
laws were repealed as
late as 1787 in Austria. The last execution for witchcraft in England
occurred in 1684. The victim was Alice
Holland in Exeter. But the
last trial was in 1712 when Jane Wenham was reprieved after actually
being convicted of witchcraft.

At page
106 Hart says of Scotland :

"Between 1573 and 1722 more than four thousand men, women and
children were executed for witchcraft north of the border. 'In
no
country did the witch-cult flourish more rankly, in no country did
the belief persist more lately, in no country did the persecution
of
sorcery rage fiercer and the fires blaze brighter than in Scotland
..."

At page
101 the learned author in reference to James 1 says

"He found that convictions were too often based on unreliable
children's evidence. The cases which brought about his change
of
heart included the Abingdon trials of 1605, where the accusations
were made by Anne Gunter, a girl of fourteen; the case of
the
Leicester Boy, John Smith, in 1618, whose testimony resulted in nine
hangings, and a similar case two years later, that of
Bilson Boy,
William Perry. A contemporary wrote:

'The frequency of forged possessions (i.e. by devils) wrought such
alteration upon the judgment of King James that ... he grew
first
diffident of, and then flatly to deny, the workings of witches and
devils as mere falsehoods and delusions."

At page
108 Hart says

"Witch delusions persisted in Scotland until well into the
eighteenth century. In 1704, for example, the Pittenweem witch
trial
on the east coast of Scotland provoked mob violence, condoned by the
authorities, resulting in the death of two accused witches.
In June,
1727, Janet Home of Dornoch was burned for having used her daughter
as a flying horse. As late as 1773, the Associated
Presbytery
formally

16

reaffirmed its belief in witchcraft, a fearful tribute to the power
of superstition only two hundred years ago."

Mr.
Magutu thus submitted that the accused wanted justice to be done
because their child was claiming that the deceased was responsible

for her hysteria. When the deceased refused to turn up they decided
to let her have a taste of what she had dosed to their child.
He
submitted that the accused were anxious to see justice done village
style and felt angered when the deceased refused to comply
with the
chief's order. Mr. Magutu accordingly asks the court to acquit the
accused of the capital offence.

I have
heard all that was said for the accused by their counsel. I am of the
firm view that they have committed murder on a defenceless
woman.
Their intention was borne out by the fact that they approached the
deceased armed with the lethal sticks.

I
accordingly find them guilty of murder as charged. My assessors
agree.

JUDGE.

17

ON
EXTENUATING CIRCUMSTANCES

Much of
what I was addressed on at the completion of the defence case
appeared to me to be intended to serve as a basis for pleading
that
extenuating circumstances exist in this case.

Counsel
for the accused contended that there was a ge-r&dne belief by the
accused that the deceased had caused the ailment which
had reduced
P.M.2 to a state of hy­steria and hallucinations; and that thus
extenuating circumstances were present.

Indeed
the crown conceded that there was this genuine belief by the accused
that the deceased was responsible for P.W.2's behaviour
and
unwholesome condition. In R vs Fundakubi and Others 1948(3) SA 810
(A.D.) there is no doubt that in some circumstances a genuine
belief
in witchcraft extenuates. But in CRI. APP. No. 7/79 Piet Mdluli and
Mandie Alfred Mdluli (unreported) at 6 Isaacs J.A. in
a judgment
concurred in by Maisels P. and Mahomed J.A. sitting in Swaziland said
:

"The leading case in this Court is that of Mbombo Dlamini and
Others vs R 1970-76 Swaziland Law Reports p. 42 (Court of Appeal).
In
this case Schreiner, P. said (at page 43)

'It is wrong to believe that belief in witchcraft can never
constitute an extenuating circumstance but it is also wrong, even
though it would be merciful, to say that belief in witchcraft always
extenuates. It has been pointed out that there is broad distinction

between murders resulting from a belief that the murdered person or
his family or property was by witchcraft, and murders where
there is
no belief that the person murdered has done any wrong at all to the
murderer, but where he is killed simply for the purpose
of providing
parts of his body for strengthening or aggrandising some other
person, or group of persons. It is the unquestioned
innocence of the
person murdered that makes the second class of case so difficult to
treat as extenuated. Of course there are other
factors, like
unnece­ssary cruelty, that may affect the decision...'"

The
learned Isaacs A.J. then proceeded as follows:

18

"In the case of R vs Fundakubi & Others Schreiner J.A. (as
he then was) said (at page 819)

'There may well be other cases in which it would be proper for the
jury or the Court to decline to bring in a finding of extenuating

circumstances even where the belief in witchcraft is certainly
present. The circumstances might, for instance, show that the accused

consciously used unnecessary cruelty in bringing about the death of
the victim In Mdluli above the Court of Appeal failed to find
any
extenuating circumstances in respect of the 1st Apppelant.

But the
Lesotho Court of Appeal in C of A (CRI) No 3 of 87 Mona and Mona vs
Rex (unreported) Schutz P. sitting with Mahomed and
Trengove J J A.
found that extenuating circumstances existed and relying on Fundakubi
at 819 said at 10:

"Not that great reliance can be placed on the severity of
punishment alone to get rid of the evil (murders resulting from
a
belief in witchcraft); but it may be suggested, if any such
suggestion is necessary, that the im­position of suitably severe

punishments should be made the occasion, not so much for expre­ssions
of sympathy with the accused, as for public admonition
or reprobation
of those criminally foolish persons who allow themselves to be
induced by utterly unfounded suspicions of innocent
persons to commit
the most savage murders."

Unlike in
Mdluli where one of the appellants was shown to be under the
influence of the other, in the instant case each of the accused

appears to have played his part voluntarily without invitation by any
other to join in the fatal assault.

Accused
four was no relative of any of the accused or of P.W.2 for that
matter. He is portrayed in evidence a.s the man who came
in last
without any suggestion that his participation was required and joined
forces with the three others who were belabouring
the defenceless
deceased.

His case
stands in stark isolation therefore from

19

what
might have influenced the other accused to carry nut the barbaric
assault on the deceased.

The
attitude of the court should accordingly come nut in the wash when
coming to sentence. However it cannot be ignored that deceased's

refusal to obey the chief's order to come and be denounced publicly
as a witch fanned the pent up resentment against her.

The
potential provocation the witchcraft had on the minds of the accused
is a factor that cannot be ignored. Clearly P.W.2 though
so young, is
already superstitious. She must have got the belief in witchcraft
from her parents. So the crown can scarecely argue
that the belief by
the accused was not genuine. See R vs Nathane LL.R. 64.

Schutz P.
said in Mona at 11

"The retributive and deterrent aspects of sentence must play an
important part in this case."

Unlike in
Nona where the victim on whom the deceased were alleged to have
practiced witchcraft had died from that practice in the
instant case
the alleged victim of the deceased's evil spells is still alive. In
fact it seems to me that taking into account the
heat waves which
charactirise the climate of this country around early March and the
fact that many people are said to have crowded
her parents' house,
thus making the room atmos-phere intolerably close, it is small
wonder that P.W.2 was perspiring in the manner
described by accused 2
and also that she was even delirious.

I am not
unmindful of Fundakubi at 819-820 where it is said

".... the accused who believes in witchcraft may become so
enraged against the person who, he believes; has by the most
diabolical
methods destroyed the accused's children or other close
relatives, that he is really beside himself and acts with all the
unthinking
fury that he might be expected to show towards a venomous
snake that

20

had bitten his child."

The court
is entitled to take a serious view of the fact that there was an
element of self help in this matter. The accused decided
to
administer instant justice on the deceased despite the suggestion by
a parent of one of them and by P.M.12 that the matter be
taken to
court. It behoves the court therefore to record its disapproval of
the conduct whereby the aggrieved party takes the law
into his or her
own hands.

It has
been pointed out though that belief in witch -craft is more than
likely to outlive rationality and science. It is however
heart
warming that even before Lesotho had reached the degree of
sophiscation it has reached today King Moshoeshoe I had accepted
that
belief in witchcraft could only perpetuate untold harm in his nation
and accordingly decreed that witches should be removed
from their
villages instead of being executed. This is heart warming because
even though Lesotho was labouring in darkness at that
time the
civilised nations of the world were nonetheless executing witches
through use of Judicial machinery.

Regard
being had to the social milieu of which the accused and indeed the
witnesses for the crown also are products and the bona
fide belief
that the deceased had bewitched P.W.2 and the fact that it was common
knowledge that the deceased was a witch I find
that extenuating
circumstances are present in this case.

Accused 1
is sentenced to 14 years' imprisonment.

Accused 2
is sentenced to 13 years' imprisonment.

Accused 3
is sentenced to 13 years' imprisonment.

Accused 4
is sentenced to 16 years' imprisonment.

My
assessors agree.

JUDGE.

20th
November, 1989.

For Crown
: Mr. Mokhobo

For
Defence: Mr. Maqutu.