CRI/T/59/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

1. KATEPI
MAKHENA

2.
HLOMPHANG RATIPI

HELD AT
QUTHING

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 12th day of December,
1990

The
accused have already been convicted on their own pleas of Culpable
Homicide following the death of PHENDUKA MPIYAKHE on the
29th of
September, 1989 at Ha Selebalo Dilli Dilli in the district of
Quthing. To the original charge of Murder the accused had
pleaded not
guilty. And following that the preparatory depositions of P.W.2,
Lwaephe Makhena, and P.W.7 Dr. Klaus were admitted
and recorded in
these proceedings. The Crown on its part had dispensed with the
evidence of Likhang Phenduka tendered in the court
below.
Consequently the rest of witnesses who gave evidence in the court
below gave oral evidence in this Court.

In brief
the evidence for the Crown was as follows : The deceased was heard to
say to one of the witnesses that

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he was
keen on attacking accused No.1 because accused No.1 had reported to
the owner of the fields where a wheat crop had been trespassed
by the
deceased's horses. Incidentally, when first this was adumbrated
accused No.1 was present. He took exception to that and
a quarrel
ensued between the deceased and accused No.1. And thanks to the
intervention of one Liphafa P.W.4 the quarrel ended without

consequence, and accused No.1 left the spot immediately thereafter. A
long while afterwards the deceased was seen to leave the
place too.
So did accused No.2. At a later stage on the same day both accused
and the deceased were seen at a hillock by P.W.3.
When P.W.3,
Skhefolane, approached the scene he noticed that there was an
interchange of angry words between the deceased and accused
No.1.
Among the words which he heard uttered by the deceased were "why
didn't you take the matter to the chief" or something
to that
effect. Thereafter the deceased was seen to attack accused No.1 by
delivering a blow with a stick which accused No.1 dodged;
in response
thereto accused No.1 dealt the deceased a blow on the head. In the
course of the fight accused No.2 supplied accused
No.1 with a stick
which is before Court and that was not before accused No.2 was also
seen by P.W.3 to deliver a blow on the deceased.
However I am
satisfied that accused No.2 did play a minor role in the event.
Through questions put to the Crown witnesses appears
that at one
stage he also tried to intervene.

It was
further stated that a bore was also used in the assault. There was a
strenuous denial through questions put to the Crown
witnesses as to
the role played by this bore. P.W.3 had told the Court that the bore
was used by accused No.1 to hit at or jab
at the wounds already
inflicted on the deceased's head. What is amazing then about the bore
is the fact that although it was for
a lawful purpose that accused
No.1 had borrowed it from P.W.4, this bore, it appears was brought to
serve a legitimate purpose
hut some days after the incident it
remained hidden among the aloes near the scene.

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On this
issue of pointing out one could briefly refer to the case of S. v.
Moumbaris 1973(3) SA 109T where it was stated that it
will surfice,
i.e. the object used in carrying out an unlawful act followed by a
pointing out - it will surfice if it is discovered
as a result of an
actual physical pointing out that the accused had knowledge of some
fact relevant to his guilt. Arguing in the
same vein Milne J.P.,as he
then was, is reported as having said:

"The effect is to admit evidence of a pointing out even though
the relative confession was obtained as a result of acts of
gross
cruelty inflicted upon the person making it".

While at
this stage I wish also to refer to the evidence which was adduced
from the side of the police who gave evidence in this
Court. It
emerged from the cross-examination that the police are not above
hoard in their manner in which they went about the investigation
of
this matter. For instance, it emerged that these accused, who are
very unsophisticated from the look of things, were taken advantage

of. They no doubt cooperated with the police throughout the entirety
of the police investigations, hut it behoved the police as
a matter
of Judges' rules and administrative procedure that they should have
warned the accused before eliciting any information
from them save
their names. The purpose of a caution given to an accused person is
to guard against self-incrimination by that
accused person, and in
its text the frame of this caution is that the accused should know
after he has been cautioned that whatever
then he will subsequently
say might he used against him in evidence in a case that might
follow. There is therefore no point in
eliciting all the relevant
information including statements which are incriminatory to the
accused and after he has given them
and laid them hare to his
adversaries he should he told that now "I caution you".
There is no longer any point in cautioning
him, because the accused
would have incriminated himself in any case. I am giving this stern

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warning
that should the police persist in this type of remiss-ness in going
about their investigations cases which are brought in
this Court in
this way are going to he thrown out. Having said all these I should
point out that a plea of guilty to the crime
committed is always a
sign of remorse.

I have
endorsed what the defence counsel has said in his plea in mitigation
including the concession by the Crown that the accused
are first
offenders. I have paid particular attention to the fact that the
deceased himself seemed to have been playing a loading
role in
precipitating the bitter end to which he was a victim. But in the
same vein, one would scarcely place the chief above hoard
in his
treatment of this entire matter, While on the one hand he did a good
thing by admonishing the deceased against uttering
threats relating
to accused No.1, when he felt the need to tell accused No.1 about
those threats he should have informed the deceased,
too, that he has
informed accused No.1 about those threats, or at best he should have
called them both and asked the deceased to
say in the presence of
accused No.1 the sort of things that he had intimated secretely to
the chief; and thereafter should have
given caution or reprimand as
the case might he; hut it appears that uppermost in his mind the wish
to go to a stockfair.

SENTENCE

The Court
cannot over emphasise the displeasure it has of people who take the
law into their own hands; nor can it over emphasise
the inviolability
of human life. Consequently each accused is sentenced to pay a fine
of M2000 or serve 5 years'jail term half
of which is suspended for
two years on condition that the respective accused is not convicted
of an offence involving violence
committed during the period of the
suspension. The bore Exhibit 1 should be returned to P.W.4.

JUDGE

12th
December, 1990

For Crown
: Mr. Mokhobo

For
Defence: Mr. Lehusa