CRI/T/30/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

and

MASUPHA
MOSHOESHOE 1st Accused

SEEMA
MAFA 2nd Accused

MOHLOMI
MPHATSOANE 3rd Accused

MAKESANA
LETSOKO 4th Accused

HALEKHETHELOE
MOSHOESHOE 5th Accused

THABANG
NTHANKA 6th Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 23rd day of April,
1990.

The
accused are charged with the murder of Lephoi Tsomo on the 13th
February, 1987 at or near Mphosong in the district of Leriba.
They
have pleaded not guilty to the charge.

According
to the post-mortem report, which was admitted by the defence, the
cause of death was scalp laceration with skull fracture
and brain
damage. Externally the deceased had multiple stab wounds all over the
face and the scalp.

2

Johny
Maseli (P.W.7) testified that on the 13th February, 1987 he was
grazing his father's cattle on a pasture behind his village.
There
were other boys who were looking after their parents' cattle. That
area was not a reserved pasture at the relevant time.
While the
cattle were grazing A1, A2, A3, A4 and A5 arrived. A1 was armed with
a stick and a sword, A2 had a stick and a sword,
A3 had a knobkerrie,
A4 had a stick and a battle - axe, A5 had a stick and a sword. The
accused were in a fighting mood. P.W.7
says that on their arrival A1
said that they were driving away the cattle. He asked what the cattle
had done. A3 said they were
seizing them and taking them to the
pound. A1 interrupted A3 and said he (A3) should not talk to him
(P.W.7) but must catch him
and kill him.

P.W.7 ran
away and all the five accused chased him and left the cattle behind.
He ran down into the village and when he came to
'Mamofohla's
(P.W.6's) yard he jumped over the fence into the yard. At that time
the deceased was also passing near P.W.6's yard.
He called A1 by name
and asked him what was the matter as they were chasing a small boy
carrying such weapons. A3 was very close
to the deceased and struck
him on the head with his knobkerrie. Deceased fell down. A1, A2 and
A5 jumped over the fence and continue
the chase. P.W.6 intervened and
stopped the three accused from chasing P.W.7. The three accused i.e.
A1, A2 and A5 went to where
the deceased had fallen and hit him with
their weapons.

P.W.7
says that A6 joined the other accused at the time they were chasing
him and before they came to P.W.6's yard. Following

3

the fight
the cattle were never impounded because after the accused had
assaulted the deceased they left him lying there and went
into the
village.

Under
cross-examination P.W.7 said it was not correct that the deceased
stayed at his parents' home because his (P.W.7's) mother
was his
concubine. He denied that he was grazing his cattle on A1's arable
land. Before that day his cattle often grazed at that
area but they
were never impounded. He says that he did not carefully observed what
clothes all the accused were wearing when they
came to him. He only
noticed that A1 was wearing a Victoria blanket and that A3 was
wearing a blanket. The deceased was carrying
a stick and an umbrella,
he was wearing a helmet. He did not hear when A3 referred to the
deceased as a silly old man before he
struck him on the head with a
knobkerrie. He denied that he attacked A1 and cut him on the hand
with something like a sword. He
denied that the deceased behaved like
he was taking out a gun from his pocket before he was struck on the
head. He did not see
when A4 hit the deceased on the legs.

The
evidence of Mamofohla Koatsi (P.W.6) is to the effect that on the day
in question she was in her house at about 8.00 a.m. She
came out when
she heard people shouting saying, "stop him, stop him." As
soon as she came out of her house she saw that
the accused were
chasing P.W.7 and they were near her yard. When P.W.7 entered into
her yard A1, A2 and A5 also entered. Before
the three accused entered
into the yard the deceased had been coming up the road towards them.
When he came to them he asked what
was the

4

matter.
A3 who was behind him, struck him on the head with a knobkerrie and
said: "You silly old man I told you that I will
get you and kill
you." P.W.6 intervened and stopped the accused from chasing
P.W.7. They heeded her plea and left him alone
and went to where the
deceased had fallen and assaulted him as follows: A1 had a sword and
a stick, he struck him with the sword;
A2 had a stick and a sword, he
struck him with the sword; A3 struck him with a knobkerrie; A4 had an
axe and chopped the deceased
with it; A5 had a stick and a sword, he
struck him with the sword; and A6 used a stick.

P.W.6
says that no one intervened in the fight and that the accused left on
their own and went into the village.

Under
cross-examination P.W.6 said that she did not know that on the day in
question A1 attempted to impound her two cattle. She
is not aware
that there is a chieftainship dispute between A1 and one Tlhabeli
over the area in question. She owes allegiance to
A1 and he (A1) took
part in the burial of her brother-in-law who was buried in her
village.

'Mateboho
Koatsi (P.W.5) was in her house when she heard people making noise.
She came out and noticed that the accused were chasing
P.W.7. At the
same time the deceased was going up the road and met the accused. He
asked them what they were doing. Immediately
after that A3 went to
the deceased and struck him with a knobkerrie. The deceased fell
down. A4 came to the deceased and struck
him on the head with
something like an axe. After that all the accused came and assaulted
him while he was already lying on the
ground. A1 struck the deceased
with a sword, A2 used an iron stick; A5 used a sword; and A6 used a
stick.

5

P.W.5
says that none of the accused attempted to stop the others from
assaulting the deceased; they were all beating him up. A3
said . the
deceased was a silly old man who did not respect people and that he
had long said he would kill him. After the fight
she noticed that the
helmet which the deceased was wearing was broken.

She
denied that she threw stones at A1 while he fought with the deceased.

Matsele
Maseli (P.W.3) is a neighbour of P.W.6 and P.W.5. She was also in her
house when she heard the alarm. Her evidence is the
same on all
material points with that of P.W.5, P.W.6 and P.W.7.

P.W.1,
P.W.2 and P.W.4 are police officers who arrested the accused and also
conveyed the dead body in a police vehicle to Hlotse
mortuary. Their
evidence is to the effect that they searched the homes of some of the
accused and found some sticks. At the home
of A5 they found nothing
in the house but A5 pointed out a battle-axe which was buried in his
garden. A5 denies this. The battle
- axe and stick found in the
possession of A5 were handed in as exhibits at the preparatory
examination and were marked Exhibit
2. The deceased's helmet, walking
stick and umbrella were also handed in and marked Exhibit 1. A2's
iron bar and stick were marked
Exhibit 3. At the time of trial all
the exhibits had been lost and they could not be found after a very
diligent search.

6

A1
testified that on the morning of the 13th February, 1987 at about
6.00 a.m. he was at the home of A3 whose father was seriously
ill. A4
was also present. While he was there he saw some cattle grazing at
the reserved pasture outside the village. He has an
arable land in
that area and had some crops in it. He instructed A3 and A4 to go and
seize those cattle which were grazing in the
reserved pastures and to
impound them. A3 and A4 refused to go there on the ground that the
cattle were actually grazing in A1's
arable land and were destroying
his crops. He (A1) went there alone. He was carrying an iron rod
covered with a tape and used as
a stick. On arrival at his field he
found that Johny (P.W. 7) and one Lebuajoang were deliberately
grazing three cattle on his
arable land. There was great damage to
the crops. He told P.W.7 that he was seizing the cattle and taking
them to the pound. He
ordered P.W.7 to go and tell his parents. At
that time P.W.7 was carrying a stick and a sword but made no attempt
to attack him.
P.W.7 and Lebuajoang went away. He drove the cattle
and followed them because the road leading to the chief's place
passes near
the home of P.W.6.

When he
passed near the yard of P.W.6 he found that P.W.7, P.W.6, P.W.5 were
already waiting for him. The deceased was with them
and he asked him
where the cattle were going. Before he could answer the deceased
P.W.7 said: "Why are you asking him, why
don't you shoot him and
kill him?" He (P.W.7) struck him with a sword but he managed to
ward off that blow with his iron rod
and with the left hand. The
sword cut his palm and he bled profusely. A1 says that he became
confused and realised that these people
were fight

7

The
deceased put his hand in his pocket. He (A1) struck him on the head
with his iron rod so that he could not have the chance to
take out
any weapon he had. He hit him several times but he does not remember
how many times. In the meantime the other Crown witnesses
were
throwing stones at . him. He was hit on the back but sustained no
visible injury.

He got a
chance to run away after the deceased had fallen down. On his way to
his home he met A3 and A4 who were on their way to
the scene of the
fight where people were making noise. They asked him what had
happened. He showed them his injured hand and they
helped him to
drive the cattle to the pound which is at his home because he is the
chief of that area. A5 and A6 were still asleep.
He woke them up and
instructed them to put the cattle into the kraal. A5 is his son and
A6 used to sleep at his (A1's) place because
of lack of accommodation
at his parents' place.

A1 was
subsequently examined by a doctor who found that he had a cut wound
left palmar side of the left hand. He handed in a medical
report
which was marked Exhibit "B".

A2's
version is that on the day in question he was at his house and never
heard any alarm that morning. He was repairing his sewing
machine. At
about 10.30 a.m. he was still in his house when he heard the sound of
foot steps behind his house. He came out and
saw a group of about
twenty people at the forecourt of his house. One of them said: "Here
is one of them." He ran away
and crossed

8

to the
other side of the river. He was eventually arrested by Trooper
Qobete. He denies that he had any stick or sword with which
he
assaulted the deceased. He does not know anything about the assault
of the deceased. He was at his home when the deceased was
killed. His
home is about 500 metres from where the assault took place.

A3 and A4
told the Court that during the fight they were at the home of A3
attending to his father who was seriously ill. They were
about 200
metres from the home of P.W.6. While they were helping their patient
A3 heard some noise outside; he came out and heard
the voise of a
woman saying, "Stop him, we have found him." He told A4
about the noise. He also came out. They tried
to go where the noise
came from but met A1 driving three cattle. They noticed that he had
sustained a wound in the palm of his
left hand. When they asked him
what had happened and what the noise was all about, he did not answer
them but instructed them to
drive the cattle to the pound. They
complied.

A3 denied
that he was holding a knobkerrie and that he hit the deceased with
it. A4 also denies that he was holding a stick and
a battle - axe.

The story
of A5 and A6 is that during the fight between A1 and the deceased
they were still sleeping at the home of A1. They were
awakened by A1
who instructed to drive three cattle and put them in the kraal. They
deny that they participated in the killing
of the deceased.

9

Phothetsi
Fatso (D.W.7) testified that on the 13th February. 1987 he passed
near A1's arable land and saw that Johny (P.W.7) was
grazing his
cattle in field. A1 came and drove away those cattle.

Mr.
Peete, counsel for the defence, submitted that the absence of the
exhibits affects the credibility of the Crown witnesses. I
agree that
it affects the credibility of at least one of his clients, namely AS
who denies that any stick and battle - axe or sword
were found in his
possession and were eventually exhibited at the preparatory
examination. The record of the preparatory examination
shows that his
stick and battle axe were recoved by the court a quo and marked
Exhibit 2. The denial by A5 that these exhibits
were there during the
preparatory examination proceedings tells its own tale. A5 is not a
person who is prepared to tell this Court
the truth. Why should the
police lie that he (A5) pointed out the battle - axe where it was
buried in his parents' garden? He happens
to be the youngest of the
accused and I see no reason why police could pick him instead of the
older accused.

A2 also
denies that an iron bar and a stick were produced in evidence at the
preparatory examination. According to the preparatory
examination
record the iron bar and stick allegedly seized from him were handed
in and marked Exhibit 3. It is not true that the
Prosecution
witnesses only talked about thorn without producing them. No court
can give exhibits numbers without seeing them. Even
where an exhibit
cannot be brought before a court of law because of its bulkiness the
presiding office must conduct an inspection
in loco, unless the
parties agree that the exhibit is there and it is as described by the
witnesses.

10

A1 is
claiming that he is the only one who assaulted the deceased and
inflicted all the injuries sustained by the deceased. This
allegation
cannot be true because according to the medical evidence, which was
accepted by the defence, the injuries were caused
witha sharp object.
The doctor was of the opinion that it was possible that even the
skull fracture was caused with a sharp object
(See his deposition at
page 1 of the preparatory examination record which is part of this
record because it was admitted by the
defence). A1 testified that he
caused the injuries with an iron bar covered with a tape. His iron
bar is not a sharp instrument
and could not cause such injuries. The
deceased had about six wounds which were all caused with a sharp
object. There was not a
single wound caused with a blunt object.

It may be
argued that if that be the case then the evidence. of the Crown
witnesses cannot be true that A3 hit the deceased on the
head with a
knobkerrie. There is evidence that the decease was wearing a helmet
and that after the assault it was found to have
been broken. The
Court was not told what material was used the making of that helmet.
If it was breakable as alleged by the Crown
witnesses, then it was
capable of cutting the scalp. Even if the first blow by, As id not
actually cause a cut on the scalp, it
was that blow that felled the
deceased and incapacitated him. It may be that it was that blow which
caused the fracture of the
skull because the doctor is not quite sure
that even the fracture was caused with a sharp instrument. He merely
says that it is
possible that it was caused with a sharp instrument.

In my
view A1 is not telling the truth that he alone caused the injuries
with his iron bar. He is merely trying to protect the accused
who are
his loyal subjects and one of them is his own son.

11

There is
overwhelming evidence by the Crown witnesses including the police
officers that after the assault a broken helmet, a walking
stick and
an umbrella were found at the scene of the crime. There is evidence
by P.W.6, P.W.5 and P.W.3 that the above three items
are the property
of the deceased. There is evidence that it had been raining that
morning and that was the reason why the deceased
was carrying an
umbrella. I find it quite improbable that if the deceased intended to
fight when he came out of the house after
P.W.7 had made a report to
him (according to A1's version), he would have gone there holding an
umbrella and a walking stick. He
could have armed himself with the
right weapons for such an encounter. The things he was fighting
indicate that he was not fighting.

Mr.
Peete, submitted that one of the Crown witnesses lied that the
deceased was chopped on the legs. No wounds were found on the
legs of
the deceased. I am of the view that P.W.5 did not see well where the
axe landed. I did not have the impression that she
was deliberately
telling the Court a lie or exaggerating. Such mistaken observation is
not at all unlikely when it is taken into
account that there was a
vicious attack upon the deceased by six armed men and that the women
were frightened and screaming and
calling for help.

It was
argued on behalf of the accused that all the Crown witnesses except
P.W.3 were unable to describe the colours of the blankets
the accused
were wearing when they allegedly attacked the deceased. I do not
think that failure to observe the colours of the blankets
which the
accused were wearing is of any great importance.

12

The
witnesses know all the accused very well because they live in the
same village with them. If one sees a person one knows very
well it
is not always necessary for one to observe the clothes that person is
wearing. I find it quite normal for some of the Crown
witnesses not
to have cared to carefully observe the clothes worn by the accused
persons. It was daytime and the accused were so
very close to them
that mistaken identity does not arise.

It was
also argued on behalf of the accused that at the preparatory
examination proceedings the Crown witnesses never said that
A3 said
to deceased, "You silly old man, I told you that I shall get you
and kill you." It Is true that those words do
not appear in the
preparatory examination record. What appears in the preparatory
examination record defends to a large extent
on the questions put to
the witnesses by the public prosecutor. There are some public
prosecutors and Crown Counsel who lead a
witness in such a way that a
witnesses is bound to answer only those questions put to him. It is
often not surprising that at the
trial witnesses say much more than
what appears in the preparatory examination record. It would be
unfair to conclude that a witness
is telling a lie because what he
says at the trial does not appear in the preparatory examination
record. It will always depend
on whether or not the point raised is
so material that it changes the whole picture. In the present case
the point complained of
appears to me unimportant.

13

Mr.
Peete, submitted that the blemishes in the evidence of the Crown
witnesses should not be ignored and that their evidence should
be
rejected. I do not agree with that submission. Whatever conflicts
there are in their evidence do not go to the root of the matter.
They
are minor points which are common in cases of fights especially where
many people are involved. Six people were involved plus
the deceased
and it is normal for witnesses not to observe minor things in the
same way or with the same accuracy. We were hihgly
impressed by the
Crown witnesses. Their demeanour suggested truthfulness. They were
not at all shaken by cross-examination which
was very thorough and
searching.

On the
other hand the accused did not by any means impress us as witnesses.
I have shown above that some of the accused have lied
on a very
neutral point i.e. that certain things were exhibited in the court a
quo and given identifying marks. This denial of
a proven fact greatly
affects their credibility.

I shall
now deal with the alibi raised by A2 to A6 inclusive. It is trite law
that the defence must put their case to the Crown
witnesses and if
the defence is one of alibi it must be put to the police so that they
may check it. So it is permissible for a
court to take into account
that a defence such as an alibi may be considerably weakened if it
was disclosed too late to give the
police an opportunity for checking
it. (R. v. Mashelele 1944 A.D.571 at p. 585). In the present case the
accused have not actually
raised a proper defence of alibi because
they were in the same village in which the deceased was murdered.
According to their allegations
they were only a few hundred metres
from the scene of the crime.

14

I have
believed the evidence of the Crown witnesses and reject the evidence
of the accused for the reasons I have given above.

The
accused have alleged that the Crown witnesses lied because they are
biased against them due to a chieftainship dispute between
A1 and one
Tihabeli. This was denied by all the Crown witnesses who claimed that
A1 is their chief and that they pay allegiance
to him. I have no
reason to disbelieve the story of the Crown witnesses and note that
if the defence seriously wanted to challenge
the truthfulness of the
Crown witnesses on this point they would have called their senior
chief.

Mr.
Lenono, for the Crown, submitted that there was common purpose. It is
trite law that when two or more persons act in consort
with the
intention of doing an illegal act, each may be liable for the
criminal act of the other, although the co-operation commenced
on an
impulse and without any prior consultation (R. v. Mkize, 1946 A.D.
197; R. v. Dhladla, 1962 (1) S.A. 307 (A.D.); S. v. Maree
and
another, 1964 (4) S.A. 551). In the present case the accused did not
have any prior consultations but as soon as A3 struck
the deceased
with a knobkerrie and felled him, the rest of the accused came and
hit him on the head with their weapons. In my view
the Crown has
proved common purpose.

I have
come to the conclusion that the story of the accused persons cannot
be reasonably possibly true. The accused had intent to
to kill in the
form of dolus eventualis in the sense that the accused foresaw the
possibility that their acts of hitting an old
man of

15

70 years
of age on the head with their dangerous weapons was likely to cause
death but they were reckless as to whether death resulted
or not.

I find
all the accused guilty of murder. My assessors agree.

J.L.
KHEOLA

JUDGE

23rd
April, 1990.

16

EXTENUATING
CIRCUMSTANCES

I have
found that the accuseds' intention in the commission of this offence
is one known as dolus eventualis. In R. v. Sigwahla,
1967 (4) S.A.
566 at p. 571 the Appellate Division held that

"(a) Trial courts, in their conspectus of possible extenuating
circumstances, should not overlook the fact (if it be such)
that it
is case of dolus eventualis."

I have
found that there was no premeditation. In Rex v. Taylor, 1949 (4)
S.A. 702 at 705 Schreiner, J.A. said:

"If a killing is intentional it is none the less murder because
the intention has only

been formed immediately before or at the time of the act, though the
time factor may be of crucial importance where questions of

provocation or self-defence are raised and be relevant to the issue
of extenuating circumstances."

I found
that there are extenuating circumstances.

SENTENCE:
A1, A2, A3 and A4:- Eight (8) years' imprisonment each. A5 and A6:-
Eight (8) cuts with a light cane to be administered
by a prison
officer at Maseru Central Prison.

J.L.
KHEOLA

JUDGE

23rd
April, 1990.

For Crown
- Mr. Lenono

For
Defence - Mr. Peete.