CRI/T/45/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

-R E X

and

MOHLAKOLA
MATSOAI 1st Accused

TSA8ELLO
MATSOAI 2nd Accused

MALEFANE
MATSOAI 3rd Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 17th day of October,
1990.

The
accused are charged with the crime of murder; it being alleged that
on the 15th day of November, 1987 and at or near ha Matsoai
in the
district of Berea, they each or other or all of them unlawfully and
intentionally killed Matsoai Matsoai. They pleaded not
guilty to the
charge.

The
defence admitted the depositions made at the prepara­tory
examination by the following witnesses. 'Makatiso Ntisa (P.W.1)
who
raised an alarm when the wife of the deceased reported

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to her
that her husband had been killed; Mochesela Ntisa (P.W.2) whose
evidence is to the effect that when he heard the alarm he
went down
to the fields. He saw A2 leaving the dead body and he was holding a
black piece of timber stick (He identified the piece
of stick before
Court as the one A2 was holding). He examined the dead body and saw a
wound on the head from which bones were protruding,
a wound on the
back of the head and a fractured arm. The field in question belonged
to the father of the deceased; but after his
death it was used by the
father of the accused. At the time of this incident it had been
ploughed by the deceased and he had planted
wheat which was being
grazed by the cattle of the accused; Trooper Lelala (P.W.6) who
examined the dead body at the scene of the
crime and found several
wounds on the head from one of which brain matter was appearing, he
found a piece of stick at the scene
of the crime. It was marked
Exhibit "1"; Detective Trooper Ramone (P.W.7) testified
that the accused 1 came to Mapoteng
Police Station and gave him a
sword and said that he had used it in the fighting. It was marked
Exhibit "2"; Kheola Matsoai
(P.W.3) identified the body of
the deceased to the doctor; Litaba Lekanyane (P.W.10) convoyed A2 to
the police station in his vehicle
and Or. Gotink (P.W.11) is the
medical practitioner who carried out a post-mortem examination of the
body of the deceased. He formed
the opinion that death was due to
severe head trauma with skull fracture and extensive brain damage.
There was a huge laceration
on the forehead, with clearly visible
skull fracture and brain damage; open scalp wound on the left side
and above the left eyelid
and a fractured lower arm with a
laceration.

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The first
witness called by the Crown in this Court is Tau Matsoai. He is the
son of the deceased. and he is eighteen years old.
The accused are
his paternal uncles and they are brothers. On the morning of the 15th
November, 1987 he was at his home when he
saw cattle grazing on his
father's field on which there was wheat which had been planted by his
father. A1 was herding the cattle.
The deceased went to the father of
the accused in order to report to him that his son. was deliberately
grazing cattle on his field.
On his return he reported that the
father of the accused had said that those cattle were being looked
after by men like himself.
He and the deceased went to the field. On
their arrival there the deceased greeted A1 and immediately after
that A2 and A3 arrived.
The deceased asked A1 what those cattle
wanted there. A1 said there were weeds (theepe) on the field and he
wanted that the cattle
should grace the weeds so that he can plough
the field. A3 said that A1 should leave the deceased alone so that he
could do what
he wanted to do. The deceased said he was satisfied but
A1 shouted "Attack!"

The
accused attacked the deceased and hit him with their weapons. A1
struck him with a sword, A2 struck him with a stick and A3
hit him
with a sword. (Tau identified Exhibit "1" as part of A2's
stick and Exhibit "2" as A1's sword). He
ran away because
A2 hit him with a stick on the waist.

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Under
cross-examination Tau deposed that at the time they saw the cattle
grazing on his father's field his father was ready to leave
for
Kimberley where he worked. They did not take any weapons when they
went to the field because the intention of the deceased
was to
impound those cattle. The deceased was wearing a blanket and he (Tau)
was sure that he was not hiding any sword under his
blanket because
he saw him when he was putting it on. He denied that Exhibit "2"
belonged to the deceased. When he ran
away the deceased had been hit
three times. The stick of A2 broke when he hit the deceased on the
head with it. He denied that
A1 had Exhibit "1" and that
the deceased was in a bad mood when he arrived at the field. He
denied that Exhibit "1"
broke when A1 warded off a blow
delivered by the deceased with Exhibit "2".

Tau
estimated that the village is about 700 to 800 yards from the field.

'Matau Matsoai (P.W.2) was at her home at about 8.30 a.m. on the 15th
November, 1987. She was in the company of her husband (deceased)
and
their son Tau. They saw the cattle of Mojalefa and Nako grazing on
the field of the deceased on which wheat was grown and they
were
being herded by A1. The deceased went to the father of the accused
and to Nako to report to them what A1 was doing to his
field. When he
cage back he went down to the field with Tau. She remained at home
but she could see the field from her home. When
deceased and Tau
arrived at the field, A2 and A3 also arrived. She then saw them
fighting but she did not see how the fight started.

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The
deceased fell down and she then tried to go down to the field. She
did not reach the field because on the way she met A3 holding
a sword
and he chased her.

The field
in question is about 1 kilometre from her home. She and the deceased
saw and recognized A1 who was 1 kilometre from them
and that is why
the deceased went to A1's father in order to make a report.

P.M.3
'Makhotso Seotsanyana testified that she lives in the same village
with the accused. On the day in question she was at her
home when she
saw the cattle of the father of A1 grazing wheat on the field of the
deceased. A1 was looking after them. She saw
the deceased and his son
(P.W.1) going to the field. At the same time she saw A2 and A3 go to
the same field. As she was far from
the field she did not clearly see
what was happening but she saw that they were fighting. One person
fell down and she saw that
things were being raised up in a manner
indicating that they were hitting the person who had fallen down.

Motjotjo
Patsi (P.W.4) is the younger brother of the father of the accused.
The deceased is the son of his late brother Mohlakola
who was the
owner of the field in question. After his (Mohlakola's)death his
fields (there are three of them) were allocated to
the deceased by
the family and the local chief confirmed the family decision and
formally allocated the fields to the deceased.

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On the
day the deceased was killed he received a report as a result of which
he took his stick and proceeded to the fields. He saw
cattle and
people on the field which is the subject matter of these proceedings.
A1 and A3 were holding shiny objects and were
going in the direction
of Letsoela's village. When he arrived at the field the deceased was
already dead and A2 was still looking
after the cattle. He was
holding one stick and a piece of a broken stick similar to Exhibit
"1". He testified that the
accused were killers and killed
the deceased because he saw them leave the deceased. He was about two
hundred or three hundred
yards away when he saw them.

He
admitted that during the lifetime of Mohlakola the field in question
used to be ploughed by the father of the accused. However
he did so
under the system of sharing with Mohlakola who was the owner of the
field.

A1
testified that on the 15th November, 1987 he was herding his cattle
on the field in question on which there was no wheat but
wild weeds.
The deceased and his son. (P.W.1) arrived. The former was very angry
and asked him what he (accused) intended to do.
Even before he could
answer that question the deceased struck at him with a sword he was
holding (he identified Exhibit 2 as that
sword). He warded off that
blow with his stick and immediately struck the deceased on the arm
with his stick. As a result of that
blow the sword fell on the
ground. He (accused) took the sword and struck the deceased on the
head with it till he fell down. After
he had fallen down he never
assaulted him again . A2 and A3 were not there at all and he alone
fought with the deceased.

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Regarding
the field A1 says that it was being ploughed by his father since his
(accused's) childhood. It never belonged to the father
of the
deceased.

A2's
version is that he remained at home when A1 took out the cattle to
graze. A long time after that he went down to the fields
and met A1
near the river. A1 was carrying a black sword and a piece of a stick.
A2 says that he drove the cattle left by A1 and
never reached the
field where they had been grazing. He denies that ho chased P.W.1.

A3
testified that on the morning in question he was on his way to work
in the Republic of South Africa when he met A1 near the river.
The
latter was holding a sword and a broken piece of stick; he (A1)
reported to him that he had clashed with the . deceased at
their
father's field. A3 denies that he ever participated in the fight
between A1 and the deceased.

The
accused are implicated in the murder of the deceased by four Crown
witnesses. P.W.1 was at the field with the deceased and saw
what
happened. According to him all the accused hit the deceased on the
head with their respective weapons. He is corroborated
by his mother,
P.W.2 who, though she was about one kilometre away, saw that there
was a fight leading to her husband falling down.
She rushed down to
the field but failed to reach it because on the way she met A3 who
chased her away with a sword in his hand.
I agree with the criticism
of her evidence on the ground that she was a little bit too far to
see exactly what happened at the
field. She confessed that she did
not see how the fight started but saw that there was a fight after A2
and A3 had

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It is
also correct that the evidence of P.W.1 and P.W.2 should be
approached with caution because they are closely related to the

deceased and have been directly affected by his death. The impression
I had of the two witnesses was that they were honest and
truthful
witnesses. P.W.1 admitted that as soon as the fight started he ran
away and does not claim to have seen all that happened.
In the same
way P.W.2 does not claim to have seen what each of the accused did to
her husband. She could not have seen clearly
what happened because
she was a little bit too far. In any case the evidence of P.W.1 and
P.W.2 is corroborated by P.W.3 and P.W.4
who saw what happened. P.W.3
saw A2 and A3 .. leave the village. They joined their brother who was
herding cattle on deceased's
field. From her home she could not see
what was happening except that those people on the field were
fighting and one of them fell
down; the others beat him up. All she
could see was that they were raising up their arms and hitting the
one who had, fallen down.
P.W.3 impressed me as being an honest
witness because she made no attempt to claim to have seen more than
she did.

P.W.4 is
the paternal uncle of the accused and, like all the other Crown
witnesses, has never had any quarrel with the accused.
They have been
on very good and cordial terms with him. In other words no reason was
suggested why he could falsely implicate the
accused in this serious
crime. He did not see the fight but when he appeared at the scene he
saw A1 and A3 leaving the deceased
who had fallen down. They were
holding shiny objects

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and going
in the direction of Letsoela's village. The question one may asked
is: if the A3 was not involved in the fight why was
he holding a
shiny object and accompanying A1? The only reasonable inference to be
drawn from his conduct is that he was running
away from the scene of
the crime because he had participated in the murder of the deceased.
A3 boarded a vehicle with A1 and never
returned to the scene of the
crime. He alleges that he did not go to the scene of the crime
because he was afraid as A1 had told
him that the deceased bad died.
It seems to me that was the very reason why he had to go to the field
to see and help his cousin
who had been killed by his own elder
brother. He is a man of about twenty-five years of age and must have
seen dead bodies many
times and there was no reason why he was
allegedly afraid of seeing the corpse of his own cousin. The real
reason was that he was
running away.

A2 is
also implicated by his own uncle who, when arriving at the scene of
the crime, found him holding a full stick and a piece
of a broken
stick similar to Exhibit 1. P.W.4 says that because A2 was hodling
those weapons he regarded him as a killer. His evidence
is to some
extent corroborated by P.W.1, P.W.2 and P.W.3 that he participated in
the murder of the deceased.

A1 has
raised the defence of self-defence by admitting that he alone caused
all the injuries which caused the death of the deceased
in the manner
described above in the summary of his evidence.

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