CRI/T/10/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

R E X

and

MOEKANE
CHAKATSA

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 26th day of
September, 1990

The
accused is charged with two counts of murder. In Count I it is
alleged that upon or about the 25th day of May, 1989, and at
or near
Majakaneng in the district of Thaba-Tseka, the said accused
unlawfully and intentionally killed Phoka Jonkoro. In Count
II it is
alleged that on the 25th day of May, 1989, and at or near Majakaneng
in the district of Thaba-Tseka, the said accused
unlawfully and
intentionally killed 'Mampitla 'Maitumeleng Chakatsa. The accused
pleaded not guilty to both charges.

2

The
defence counsel, Mr. Mafisa, admitted the depositions of the
following witnesses at the preparatory examination: P.W.3 'Maphoka

Ntsane, P.W. 4 'Manyefolo Maseli, P.W.5 Maeza Koloane. P.W.6 Paseka
Namane, P.W.7 White Lerotholi, P.W.8 Detective Trooper Ramone,
P.W.10
Dr. A. Fisdbache, P.W.11 Dr. Leresche and P.W.12 'Maphehello Jonkoro.

The
admitted evidence relates to the identification of the deceased
persons before the two doctors who performed post­mortem

examinations on the dead bodies of the deceased persons; to the fact
that the round hut in which the deceased were sleeping was
completely
destroyed by fire; there were pieces of human flesh on the
window-sill which indicated that the deceased persons or
one of them
got out through the window and that both deceased persons died as a
result of second degree burns over 70% of the body
surface which
resulted in great loss of fluid and in consequence failure of the
heart and the kidneys.

Lehlohonolo
Lelala (P.W.1) is an accomplice. He testified that in May, 1989 he
was working with the accused and others as a team
involved in
building houses for reward for people in the Thaba-Tseka area. On the
25th May, 1989 he was at Ntlatlapa's bar with
the accused and Tita
Lelala (P.W.2) . They drank pine­apple beer for the whole of that
day and they were all drunk when they
left that place late at night.
The two deceased were present at the bar and were seen drinking beer.
At one stage during the day
the accused went outside and called him
(P.W.1) and his brother,

3

Tita
Lelala (P.W.2). He told them that the deceased Phoka Jonkoro, looked
down upon him and he (accused) felt like assaulting him
or burning
him because he was in love with his elder brother's wife. P.W.2
reprimanded him and warned him not to say such a thing.
They all went
into the bar and continued drinking until late at night.

P.W.2 and
his girlfriend, Mosimotsana, were the first to leave the bar that
night and were followed by P.W.1 and the accused whose
destination
was the home of the deceased, 'Mampitla Chakatsa. Phoka had left the
bar much earlier than P.W.2. P.W.1 says that when
they came to
Lekoko's place the accused picked up a small bundle of straw. He did
not ask the accused what he was going to do with
the straw but
assumed that he was going to use it for lighting in the house. When
they left the bar they did not discuss their
destination but he
noticed that the accused was going in the direction of 'Mampitla's
place and he assumed that he was going to
collect his belongings
because at one time he stayed at 'Mampitla's place. When they arrived
at 'Mampitla's place he (P.W.1) stopped
at a distance of about twelve
paces from the house because he was passing water. The accused went
to the door and he (P.W.I) thought
that he was opening the door. The
accused was actually fastening the latch of the door with a wire in
such a way that the door
could not be opened from inside. This is
what he was later told by the accused.

4

Having
thus fastened the door the accused lit the small bundle of straws he
had brought and then set on fire the front part of the
house and then
the back part of the house. The house in question was a small hut
roofed with straw. When they left the hut the
straw-roof was already
burning. They arrived at their place and found P.W.2 and Mosimotsana.
The accused reported to P.W.2 that
he had burnt those people into the
house but did not explain which people he had burnt and into which
house. They slept and at
dawn the accused left for a circumcision
school where the initiates had completed their course and were to
come home on that day.

Under
cross-examination P.W.1 revealed that the accused and the late Phoka
were not friendly to each other, although they sometimes
conversed
with each other it was always not in a pleasant manner. Sometimes
when the accused greeted the late Phoka, the latter
did not respond.
P.W.I did not say anything when P.W.2 reprimanded the accused because
he did not take the threat seriously. He
saw that when Phoka left
'Mampitla remained behind. When the accused set the house on fire he
did not do anything nor raise alarm
despite the fact that there was
no agree­ment between them. After he was arrested he denied any
knowledge about the death of
the deceased. He only told the police
the truth after some months or after two weeks.

5

Tita
Lelala (P.W.2) confirmed that when they were at Ntlatlapa's bar the
accused said he felt like fighting or burning the late
Phoka into a
house. He reprimanded him and it appeared as if he heeded his
reprimand. He left the bar at about 9.00 p.m. and went
to his house.
Later that night the accused and P.W.1 arrived. The accused made a
remark that he did not know how those people would
escape and that
they would burn in that house. He asked the accused what he would say
if those people were found burnt in the house.
On the following
morning when it was reported that the deceased were burnt into the
house, he asked P.W.1 what they did after he
left them at the bar,
P.W.1 said that the accused went away and left him at the bar for a
short time but he did not know where
he had gone to.

P.W.2
deposed that after the accused had made the threats he immediately
warned the late Phoka about them. But he was surprised
that Phoka
went to 'Mampitla's house on the night of the same day on which the
threats were made.

The
evidence of Detective Sergeant Mongaula is not very helpful to the
Court because in May, 1988 when the offence was committed
he was here
at the High Court and only went to Thaba-Tseka in July, i.e. after
two months. He went to the scene of the crime and
found that the
house in question had been destroyed by fire and found a piece of
wire (allegedly pointed out by the accussed

6

It was
inside the house (wall) just near the door. On the 31st July, 1988
having arrested the accused and the two Lelala brothers,
he again
left for Maseru and does not know what happened to the accused and
the accomplice. His assertion that after he had left,
the accused
could not have been detained by the police for three weeks is not
supported by any evidence. The record of the preparatory
examination
shows that the first remand was on the 8th August, 1988. This means
that after his departure the accused remained in
police custody for
at least eight (8) days before the formal remand.

The wire
found at the scene of the crime does not prove anything because if
the Crown intended to prove that it was used in the
fastening of the
door, it (the wire) does not support that contention. If the wire had
been used for that purpose then it would
have been found still
attached to the latch or the handle of the lock. The latch or lock
and its handle were not exhibited in this
Court and there is no
evidence that they were found at the scene of the crime. The wire
alone does not prove anything because it
is not even twisted in such
a way as to show that it was used in fastening something.

The
investigations of this case were delayed to such an extent that vital
exhibits, which could probably confirm the story of P.W.1
that the
door was fastened were not found.

7

The Crown
has failed to prove that the door was fastened in such a way that it
could not be opened from the inside. The mere fact
that human flesh
was found on the window-sill does not necessarily prove that both
deceased persons got out through the window.
One of them might have
got out through the door.

Section
229 (2) of the Criminal Procedure and Evidence Act 1981 provides that

"Evidence may be admitted that anything was pointed out by the
person under trial or that any fact or thing was discovered
in
consequence of information given by such person notwithstanding that
such pointing out or information forms part of a confession
or
statement which by law is not admi­ssible in evidence against him
on such trial."

Mr.
Sakoane, counsel for the Crown, submitted that the accused pointed
out the wire which was allegedly used in the fastening of
the door. I
do not think that this is a proper case of pointing out because the
fact that the house in question had been set on
fire was known by all
the people in that village including the police. It was also
suspected that the deceased persons got out
through the window
because the door was fastened from outside in such a way that the
people inside could not open the door. The
accomplice had already
told the police about the fastening of the door with a wire.

8

For these
reasons it cannot be said that the accused led the police to the
house and pointed out something that was not known. Even
if the
accused did go to the house with the police and showed them a piece
of wire lying near the door, that does not mean that
he pointed it
out in terms of section 229 (2). The police went there with full
knowledge that a wire had been used and that it
was likely to be
found near the door. In addition to all this knowledge they already
had,they decided that the accomplice and the
accused should be
together when the so-called pointing out was done. It is the
accused's allegation that it was the accomplice
who showed the
policeman that piece of wire.

The
accomplice is a lier who should not be believed under any
circumstances. On the following morning when a report was made that

the deceased persons had been burnt , P.W.2 Tita asked his brother
(the accomplice) what he and the accused had done after he left
them
at Ntlatlapa's bar. One would have expected the accomplice to have
told his brother the truth because at that time the accused,
whom he
alleges to have been very much afraid of was not there. Instead of
telling him the truth he lied and said while they were
at the bar the
accused went away leaving him there for short while. He was already
implying that the accused must have gone to
the house in question,
set it on fire and then returned to the bar.

9

Under
cross-examination P.W.1 said that he just thought that the accused
was fastening the door because people were burnt into that
house. He
later said that when they left the house already in flames the
accused told him that he had fastened the door with a
wire. These two
conflicting statements prove beyond any reasonable doubt that P.W.1
is a lier.

The
accused has testified that after he and the Lelala brothers were
severely assaulted by the police he agreed to go before a magistrate

to make a confession. He said he was accompanied by policeman
Ramakatane. When he appeared before the magistrate he told him he

knew nothing about the alleged offence. He told the magistrate that
it was only after severe assaults that he agreed to implicate

himself. The magistrate wrote a letter and gave it P.W.3 ordering him
to take him (accused) to the hospital.

This
allegation has not been challenged by the Crown either in
cross-examination or by calling the magistrate and policeman
Ramakatane
to rebut it. It may well be that the Crown thought that
the allegation has no bearing on their case. I do not think so
because
it proves that the accused and the Lelala brothers were not
only detained for a long time but also that during that period they

were severely assaulted. In his evidence the accused stated that they
were belaboured by the police until he decided to make a
confession
but when he came to the magistrate

10

he
changed his mind and told him that he knew nothing about the
commission of that offence. Detective Sergeant Mongaula is not in
a
position to deny these allegations because he remained at Thaba-Tseka
for only a few days and left the accused in the custody
and care of
other policemen.

The Crown
did not dispute the fact that a few days before the events which give
rise to these proceedings the deceased Phoka Jonkoro
took some
saucepans and a primus stove belonging to his wife 'Matsepiso and
gave them to the deceased 'Mampitla Chakatsa. The removal
of her
property from her own home to the home of a concubine infuriated
'Matsepiso so much that she went to 'Mampitla's home. After
a heated
altercation and exchange of insulting words 'Matsepiso took her
property and returned it to her house. Before leaving
'Mampitla's
house she said, "You will see me you 'Mampitla. You cannot take
my husband and then my utensils." The accused
says that he was
present at Ntlatlapa's bar when 'Mampitla reported her confron­tation
with 'Matsepiso. He (accused) even warned
'Mampitla that she was
breaking up Phoka's marriage.

Thereafter
Phoka immediately left for his house and on arrival there he
assaulted his wife and again took the utensils and gave
them to
'Mampitla at the bar where she was working. There is no doubt that
'Matsepiso was treated in a very insulting and humiliating
manner by
her husband. Having earlier made a threat

11

that the
deceased 'Mampitla would see her it seems that the assault upon her
and the second removal of her utensils back to 'Mampitla
must have
made her very bitter. I think the police ought to have regarded
'Matsepiso as one of the suspects inasmuch as she had
a good motive
to kill the deceased persons who were treating her with the utmost
contempt and humiliation. According to the evidence
of the
Crown,'Matsepiso was never interrogated and it was submitted on
behalf of the accused that she had a good reason or cause
and
opportunity to set the house on fire in order to burn the deceased
persons. I entirely agree with this submission.

P.W.1 and
P.W.2 give conflicting versions of what the accused said when he and
P.W.1 arrived at the house of P.W.2. P.W.1 says that
he said that he
had burnt those people into the house. He however did not give the
names of the people he was referring to. P.W.2
denies this and says
that the accused said that he was wondering how those people would
escape and that they would burn in that
house. When he (P.W.2) asked
him what he would say if those people got burnt, accused did not
answer that question.

It is
also likely that when the accused and P.W.1 left the bar that night
deceased 'Mampitla remained at the bar because she was
the person who
was selling the beer. The accused did not leave the bar at the
closing time but left while the selling of beer was
still going on.
It is therefore unlikely that when the accused and P.W.1 left the bar
and went straight to 'Mampitla's house and
allegedly set it on fire,
'Mampitla could have arrived at her place. The indications are that
they left her at the bar and that
the house was set on fire long
after they had arrived at their place.

12

I have
considered the evidence of the Crown and the defence and have come to
the conclusion that the Crown has failed to prove its
case beyond a
reasonable doubt. I accordingly find the accused not guilty.

J.L.
KHEOLA

JUDGE

26th
September, 1990.

For Crown
- Mr. Sakoane

For
Oefence - Mr. Mafisa.