CRI/T/53/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

and

BUTI
MAKOTOKO 1st Accused

SAJENE
SELLO 2nd Accused

LIKOTSI
NTS'ASA 3rd Accused

RAFUTHO
MOTHOBI 4th Accused

KOMOTO
MOTHOBI 5th Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 27th day of August,
1990.

The
accused are charged with murder, it being alleged that on the 4th day
of November, 1987, and at or near Ngope Tsoeu in the district
of
Maseru, the said accused did, one or each or all of them unlawfully
and intentionally kill Makhamoqa Kotelo.

2

The
accused pleaded not guilty.

The Crown
has one eye-witness by the name of Litlhare Jeke (P.W.1). Her
evidence is that on the 3rd November, 1987 she had a "stockfel"

party at her home. At this kind of a party different kinds of liquor
are sold. P.W.1 was assisted by the wife of A1, 'Malethola
and one
Nthabiseng in the selling of the liquor. The party was attended by
many people including the deceased and one Thapelo who
had a illicit
love affair with the wife of A1. At some stage P.W.1 left her house
and went to 'Mamothibe's place. On her way she
met A1 who asked her
the whereabouts of his wife. She told him that she was at her
(P.W.1's) home. At about 4.00 p.m. or 5.00 p.m.
P.W.1 was returning
to her house when she found A1 at the gate of her yard. He asked her
to tell his wife that they should go home.

She told
A1's wife her message but the latter was not ready to go because she
was still selling beer as Nthabiseng, who was supposed
to take over
from her, was still suckling her baby. She decided to get out of the
house in order to report to A1 what his wife
had said, but as soon as
she appeared at the door A1 threw a stone at her and hit her on the
belly. She bent down holding her belly
with her hands. A1 threw
another stone and hit her on the forehead. She fell back into the
house and on Thapelo who sat near the
door. He pushed her away and he
and the deceased rushed out of the house. Thapelo asked A1 why he was
fighting or attacking the
owner of the house. There was no answer.
Immediately after that she heard the cracking of sticks

3

and when
they came out one Mokharitsane had already fallen down. They caught
hold of the deceased and Thapelo and dragged them back
into the
house. Not long after that stones started being thrown at the house.
The throwing of stones became so intense that the
door and windows
were destroyed. Chairs and a radiogram were broken. In an attempt to
stop the stones from coming into the house
they put a drum at the
doorway. A4 and others were still in the house and A4 had taken
Nthabiseng's baby and was hiding himself
at the corner of the house.

After a
long time the acting headman Tumo Jase arrived and he ordered the
people who were throwing stones to stop. They complied.
P.W.1 says
that she and other people got out. The deceased and Thapelo remained
in the house. Tumo suggested that they (deceased
and Thapelo) should
be handcuffed and be taken to the chief's place. A5 said it was
useless to handcuff them because they were
going to kill them. Tumo
suggested in the alternative that the house should be guarded for the
whole night so that on the following
morning they could be escorted
to the chief's place. One 'Mamapoko said it was not fair that they
should be guarded before wounds
were inflicted upon them because a
person they had assaulted, i.e. Makharitsane could die anytime
because of the wounds he sustained.
Tumo gave up and said there was
nothing he could do because the men had beaten him or were not
prepared to obey his orders. The
men dug a big hole on the wall at
the back of the house. P.W.I says that after that she heard that the
deceased and Thapelo had
got out and there was a cracking of sticks
near her house.

4

She
approached the spot where there was a cracking of sticks. She stood
about eight (8) or ten paces away and saw that the deceased
was
already lying on the ground. There was a group of about six (6) men
who were standing near him. She identified A1, A2 and A5.
Many people
had gone down in pursuit of Thapelo. A5 saw her and invited her to
come so that they could kill her with him. A2 said
they should go and
burn the blankets of the deceased and those of Thapelo. As it was
dark she did not see the blankets referred
to. A5 said they should
take a stick and poke it into the anus of the deceased to see if he
was still alive. She then saw when
A2 took a big stone (Exhibit 4)
and hit the head of the deceased with it. She saw in the morning that
the deceased's skull had
been crushed. That night she slept at the
home of one 'Matusetso because A5 had threatened to beat her up. He
had uttered the threatening
words when they left the deceased saying
they were going to burn his blankets.

Under
cross-examination P.W.1 deposed that she did not partake of any
liquor that day because party was at her home end decided
to remain
sober throughout the party. She says that she identified the accused,
i.e. A1, A2 and A5 by their voices because it was
dark and cloudy.
However, when the clouds cleared she saw the three accused and
identified them well as his co-villagers. It was
when the sky was
clear that she saw when the A2 crushed deceased's skull with a stone.
She also saw that A1 was wearing the same
clothes he was wearing
during the day.

5

Tsele
Makepe (P.W.3) testified that on the evening in question a report was
made to him that people were fighting at the home of
P.W.I. When he
arrived there he was briefed by the acting headman Tumo Jase (P.W.4).
He went to the forecourt and talked to the
people who were alleged to
be in the house. As he was speaking A2 said he was going into the
house to handcuff those people. As
soon as he entered he was struck
with a stick on the head. He staggered out and collided with the
walls of the house. He (P.W.3)
caught hold of him and led him away
from the house. His head was covered with blood. He suggested that
torches should be found
so that they could light through the door and
the hole at the back of the house. The plan worked because when he
lit through the
hole the deceased and Thapelo came out through the
door. When he came to the front of the house he saw a group of about
six (6)
near the flat-roof house; the others were chasing another
person and he joined in the chase. After they had failed to catch
that
man he returned to P.W.1's place and he saw A1 coming out of
P.W.1's house carrying a sling bag. He (A1) said it was his bag which

his wife took away when she ran away with the devil they had killed.
P.W.3 asked him whether they had already killed a person.
A1 did not
answer that question. From there he went to his home because he did
not want to associate with people who had already
killed a person.

On the
following morning he returned to the scene of the fight and found A1
and A2. A1 expressed his sorrow that an innocent man
had been killed
while the culprit had gone scot-free.

6

The
evidence of the acting headman Tumo Jase (P.W.4) does not carry the
Crown case any further regarding the identity of the killers
of the
deceased. He arrived at the scene of the fighting and found that
there was commotion and disorderliness. He succeeded in
stopping the
throwing of stones at the house. A5 and others were saying
Mokhiritsane had been assaulted so severely that he could
die any
moment and that was the reason why they wanted the deceased and
Thapelo to get out of the house. He confirms that after
A2 was struck
with a stick on the head he accompanied him to the gate and ordered
him to go home. He also joined the people who
were chasing Thapelo
but they failed to catch him. When they returned to the scene of the
fight he found that the deceased had
been killed. His skull was
crushed.

The
post-mortem examination report signed by Dr. E.N. Tlale was handed in
by consent of the defence. The cause of death is stated
as being head
injuries. The following injuries were observed: Fractures of mandible
left side, left temporal, mastoid, parietal
and occiputal bones.
Brain tissue was mixed with bone fragments.

The
defence of A1 is complete denial of what the Crown witnesses have
said about him. He admits that he was present at the home
of P.W.1
when the fighting started. He was standing at the gate waiting for
his wife so that they could go home but in vain because
his wife
refused to come out of the house. After the arrival of the acting
headman his wife came out with the

7

others
and she ran away towards her maiden home. He chased her.

Having
failed to catch her he returned to the scene of the fighting and
found that deceased had already died. The acting headman
instructed
all the men to guard the dead body until the following morning. He
denies that he took part in the killing of the deceased;
he also
denies that he took part in the throwing of stones.

A2
testified that he went to P.W.1's place because an alarm had been
raised that there were people who were fighting and the instructions

of the chief were that those people must be arrested. A short while
after his arrival there he attempted to go into the house but
was
struck on the head with sticks by the deceased and Thapelo. After
that he went to his home and never returned to the home of
P.W.1. He
denies that he crushed deceased's head with Exhibit 4. He denies that
he uttered the words attributed to him by P.W.1.

A5's
defence is a complete denial of the Crown's evidence against him. The
reason why he went to the scene of the crime was that
he heard a lot
of noise coming from that area. On his arrival there people started
running down the slope. He joined them because
he was under the
impression that they were running away from something. He later
learned that they were in fact chasing a person.
On their return from
pursuing that person the chief instructed all the men to guard the
dead body of the deceased He denies the
evidence of the Crown that he
made the utterances attributed to him by P.W.1 and P.W.4.

8

The
defence closed its case without calling A3 and A4 to give evidence.

I have
already stated above that there is only one eye-witness. The other
witnesses purport to corroborate her by referring to certain

utterances made by some of the accused either during or after the
commotion and disorderliness. Section 238 (1) of the Criminal

Procedure and Evidence Act 1981 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. The most
important words in the above section are competent and credible.

Relying
on the abovementioned section, Miss Moruthoane, Crown Counsel,
submitted that A1, A2 and A5 were implicated by P.W.I who
had a good
knowledge of the voices of the accused because she lived in the same
village with them. She also saw the accused during
the interval when
the moon was not covered by the clouds. A1 is implicated by P.W.3.
She submitted that the question of mistaken
identity does not arise
in the present case.

It is
trite law that 'even where the witness is honest the possibility of a
mistake in identifying the accused, where identity is
in issue,
demands that the greatest circumspection should be employed in
considering the identification (R. v. Hlatywayo, 1953
(1) P.H., H74).
The Court should carefully consider the evidence - the positive
assurance of identity by

9

an honest
witness is not sufficient. Where the light was relatively poor at the
locus in quo, and the witness had rela­tively
little opportunity
for careful observation and the witness was in a state of shock then
the possibilities for mistake are too great
to justify a conviction'.
(R. v. Thulo, 1958 (1) P.H. H90 (A.D.). See also Swift's Law of
Criminal Procedure, 2nd edition by Harcourt
at p. 476.

In the
South African Law of Evidence by Hoffmann, 1st edition at p.25 the
law is stated as follows:

"The accuracy of a witness' observation depends first, of
course, upon his eyesight. Second, it will be affected by the
circumstances
in which he saw the person in question; the state of
the light, how far away he was, whether he was able to see him from
an advantageous
position, how long he had him under observation,"

In the
instant case the witness (P.W.1) was not identifying strangers but
people who lived in the same village with her. That she
knew their
voices very well was never challenged by the defence. At one time AS
was actually talking to her directly and threatening
to kill her
together with the deceased if she drew nearer. Under those
circumstances I am satisfied that P.W.1 was in a good position
to
identify the accused by their voices. She was only about eight (8) or
ten paces from the accused.

In
addition to identifying the accused by their voices she saw the three
accused assault the deceased. She explained that although
it was dark
and cloudy, there were times when the

10

clouds
cleared from the moon and the moonlight enabled her to see the
accused very well. I have no doubt that from the distance
of about
ten paces she was able to identify the three accused. One may ask why
she did not identify the two or three people who
were with the three
accused. The answer is simple -we were told that amongst the people
who were at P.W.1's place there were some
strangers from neighbouring
villages.

P.W.1 did
not just have a fleeting glance at the accused. She observed them for
some considerable time because she was not passing
but standing and
watching them and one of than even spoke to her threatening to kill
her with the deceased.

The
defence criticized the evidence of P.W.1 on the ground that she has a
bias against the accused, particularly A1 because Thapelo
is her
brother. This is the man who he: run away with A1's wife and on some
occasions Thapelo and A1's wife used P.W.1's house
as a meeting
place. This alle­gation is based on speculation and no evidence
because even on that fateful day A1 and P.W.1
met and he asked her to
call his wife. There was no hostility between them. A1 was the first
to show hostility towards P.W.1 by
hitting her with stones when she
attempted to report back to him. I am satisfied that P.W.1 is and was
never habouring any bias
or hostile intent against any of the three
accused. The impression I had of her was that she was honest and
truthful.

11

It was
argued that P.W.1 must have been in a state of shock to such an
extent that she could not make a proper identification. I
do not
think that she was in that kind of state of shock; she was standing
not far from the accused and watching what they were
doing.

The
evidence of P.W.3 tends to corroborate the evidence of P.W.1 in that
A1 made a statement to P.W.3 which amounts to a confession
or
admission that he and others had killed the deceased. P.W.3 says that
when he met A1 carrying a sling bag, the latter said:
"This is
my bag which my wife took away with her when she ran away with the
devil we have killed." A1 was referring to
the deceased who was
lying dead not far from where they were. This admission corroborates
P.W.1's evidence that A1 and his companions
killed the deceased. On
the following morning A1 again expressed his sorry that the innocent
man had been killed instead of the
culprit. His intention was to kill
the man who had ran away with his wife.

A1's
story cannot be reasonably possibly true. He could not wait at the
gate for his wife from 5.00 p.m. to 9.00 p.m. are then remain

inactive when stones were being thrown at the house against the very
man who had deprived him of his wife. He had every reason
to throw
stones at Thapelo and the deceased and to kill them. It seems to me
that the whole uprising and disorderlinoss was caused
by A1 who threw
the first stone that hit P.W.1. Thapelo and the deceased apparently
angered the villagers when they assaulted Mokharitsane.

12

A2's
version that immediately after he was assaulted he found a stick on
the ground and used it to support himself and went to his
home, is a
lie. He was never seen by anybody going to his home. On the following
morning he was found by P.W.3 at the scene of
the crime. Being at the
scene of the crime would not incriminate him in anyway because the
chief had instructed them to guard the
dead body until the police
arrived. The making of a false statement may throw an unfavourable
light upon a fact previously neutral,
which can then become an item
of corroborative evidence (Corfield v. Hodgson (1966) 2 All E.R.
205).

As far as
A5 is concerned he is implicated by P.W.1 and his unruly behaviour
just before the deceased was killed tenos to corroborate
P.W.1's
evidence. He was one of those people who defied the acting headman
Tumo Jase by saying that because those people inside
the house had
severely assaulted Mokharitseng they must be killed. His evidence
that he did not do anything when he arrived at
the scene of the crime
is false and I have rejected it.

I come to
the conclusion that A1, A2 and A5 had a common purpose to kill the
deceased because they were seen assaulting him and
lastly A2 crushed
his head with Exhibit 4. They had the requisite intent in the form of
dolus eventualis.

For the
reasons stated above I find A1, A2 and A5 guilty of murder. A3 and A4
are found not guilty.

My
Assessor agrees with me.

J.L.
KHEOLA

JUDGE

27th
August, 1990.

13

EXTENUATING
CIRCUMSTANCES

The Court
found the following as extenuating circumstances:

1. There
   was no premeditation.

   
   

2. The
   intention proved was that known as dolus eventualis.

   
   

3. There
   was an element of provocation in that the deceased and his colleague
   Thapelo resisted arrest and assaulted A2 and one Mokharitsane.

   
   

SENTENCE:- In passing sentence the Court took into consideration the
following factors: all the accused are first offender; there
was an
element of provocation on the part of the deceased and Thapelo.
However, the offence is aggaravated by the fact that the
accused
defied the chief's orders and actually carried out their acts almost
in his presence. The Court cannot allow people to
take the law in
their own hands. Each accused person is sentenced to seven (7) years'
imprisonment.

J.L.
KHEOLA

JUDGE

28th
August, 1990.

For the
Crown - Miss Moruthoane

For the
Defence - Mr. Fosa and Mr. Lerotholi.