CRI/T/16/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

MAKOAKOA
LEBAKA 1st Accused

MATALA
NYAPISI 2nd Accused

LIEMO
RAMPAI 3rd Accused

MAHLOMOLA
MASUPHA 4th Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J. L. Kheola on the 29th day of
October, 1990.

The
accused are charged with the murder of Abraham Tall Khosi on the 5th
March 1988 Matukong in the disrict of Leribe. They have
pleaded not
guilty to the charge.

P. W. 1
'Mamahlape Khosi is the wife of the deceased She testified that on
the 5th March, 1988 she and her late husband attended
a funeral
service at Matukeng. After the funeral service they returned to
Hlotse where they lived as her husband was a policeman
in the Royal
Lesotho Mounted Police. On their way back to Hlotse they called at
Motsoenong

Restaurant
at Matukeng because the deceased wanted to buy some tobacco. Having
bought the tobacco the deceased asked

2

for some
money so that he could buy some beer. She gave him the money and he
bought beer which he drank with one Pesa Letuka. While
they were
drinking the beer one Pinki Monoane came to them and accused the
deceased of being a kill because he had instructed the
police to kill
him. He persist in this accusation until Pesa Letuka intervened and
ordered him to stop it. Pinki complied.

After
this disturbing incident she and the deceased left the restaurant.
When she came to the door one lady called her and said
that she was
pleased to know her as the wife of the deceased. As the lady was
talking to her she (P.W.1) saw that the deceased
was outside opposite
the window. She got out and found the deceased standing with A4 and
the latter was insulting the former. She
caught the deceased and they
went to the bus stop. A4 followed them and when they came to the bus
stop he caught the deceased by
his jacket at the neck and invited him
to fight or shoot. The deceased said A4 should leave him alone and
moved backwards for a
distance of about twenty-five paces while A4
was still holding him. He let him free but continued to follow him
for another distance
of about seventy-five paces. She heard a gun
report and A4 pulled up his skipper and showed the deceased a wound
saying ho had
shot him. At this time A2 and A3 arrived and passed her
at the bus stop and went to the deceased who was already at the top
of
the bank of the road. A1 also can-up from the restaurant and
passed P.W.1 at the bus stop and went to the deceased.

3

P.W.1
deposed that when A1 came near the deceased he shook himself and the
deceased fell down. She did not see what A1 did to the
deceased
before the latter fell down. After he had fallen down A2 and A3 hit
him repeatedly with their sticks. A1 left them and
went down towards
the restaurant. He was walking normally and not running. After A2 and
A3 had belaboured the deceased with their
sticks A4 searched him.

In
cross-examination P.W.1 said that it was raining heavily that
afternoon. She has known A1 for a very long time and denies the

allegation by the accused that he does not know her. The deceased was
still retreating when ho ended up shooting A4. After that
he went up
to the top of the bank of the road and was opposite the gate of Spar
Supermarket. P.W.1 says that although she was confused
and crying she
saw well what was happening. She denied that A1 was hit with a stone
at the solar-plexus region while he was trying
to stop people who
were throwing stones at the deceased, she also denies that after the
deceased had fallon down A1 chased a person
who had taken the gun of
the deceased she was in the restaurant and having a good view of the
deceased she did not see him separating
people who were fighting.
However, when she came out the deceased was at the corner of the
restaurant and A4 was insulting him.

P.W.1
testified that although she has not told this Court that A2 and A3
were throwing stones at the deceased, this were actually
doing so.
She knew A2, A3 and A4 before this

4

incident
because she lived in the same village with them. She denied that the
deceased threatened to shoot A2 and A3 when they were
enquiring from
A4 what had happened. She denied that the decease then fired at A2
and A3 and that they ran away and turned and
faced him when he fired
the second shot. At the time the deceased shot A4 the latter was
throwing stones at the former.

P.M.2
'Mabaruti Mochesane testified that on the 5th March, 1988 she was in
the restaurant when A1 had a quarrel with another person.
One man
asked the deceased, as a police, to separate them. The deceased
intervened and took or led the man who had a quarrel with
the accused
to the bus stop. Deceased's wife followed them towards the bus stop.
P.W.2 also went with them to the bus stop. She
noticed that some
young men were throwing stones at the deceased and one of them was
A4. She did not know why they were doing
this A1 and others came up
from the restaurant and one of them took out something from his sock
and gave it to A1 who isnt to the
deceased. He was already at the top
of the bank of the road and opposite the Spar supermarket. A1 went
infront of the deceased
and the latter immediately fell down. She did
not see exactly what A1 did to the deceased but it was as if he held
him at the
neck before they both fell down. He took the gun of the
deceased and then he called A2 and A3. On their arrival there A2 and
A3
hit the deceased with their sticks. A1 was kicking him with his
shoes after he had taken the gun. While stones were being thrown
at
the deceased she heard gun reports and saw that the

5

deceased
was shooting but aiming at the ground because mud was going up
everytime he fired.

Under
cross-examination P.W.2 said that although she was in the bar she did
not see the quarrel between the deceased and another
person. She was
sure that it was A who was causing trouble in the bar and not Pinki.
Machebane (P.W.4) knows about the quarrel.
She originally intend to
go to Spar Supermarket but failed to reach her destination because
when she came to the bus stop there
were many people who were
throwing stones at the deceased. She did not see what that person
gave to A1 because she did not pay
any particular attention to what
that person was doing.He denied that A1 was hit with a stone on the
solar-plexus and She also
denies that A1 is not the person who took
the gun of the deceased; the truth is that it was A1 who took it from
the deceased after
he had caused him to fall. She denies that the
deceased was held by his jacket while he was retreating.

P.W.2
said that when she came to the bus stop stones were already being
thrown at the deceased by more than two people. When the
throwing of
stones at the deceased started A2 and A3 were still near the
restaurant. Out when A1 beckoned them they went to the
deceased and
hit with sticks. She admits that A4 had been shot and had taken a lot
of liquor but is adamant that he was throwing
stones at the deceased.

6

P.M.4
'Machetane Tsuba testified that she was in the restaurant sitting at
a table with her husband when A1 came to them and asked
her if she
lived with one Hlomphang. Her husband answered A1 and told him that
she was his wife. A1 was too quick to take offence
and asked P.W.4's
husband what he thought he could do with his wife. He said she was
too old and not his type. He threatened to
stab and kill them. P.W.4
says that she saw one Thebe Letuka (he was P.W.7 at the preparatory
examination and his deposition has
been admitted by the defence) and
called him and asked him to talk to the accused because he was
threatening her and her husband
with death. Thebe Letuka went out
with A1 but he (A1). returned and continued to threaten to stab them
with a knife. She said when
one man gave a knife to A1 after taking
it from his sock. She also saw A2 and A3 come into the restaurant.
They asked one Matseliso
to give them beer. She offered them wine but
they said they wanted beer and left. A1 went out with them. She later
saw that A1,
A2 and A3 were involved in a fight with the deceased. A1
threw a stone at the deceased while A2 and A3 were hitting him with
sticks.
She went into the restaurant and made a report to Thebe
Letuka. She went with Thebe to the spot where the deceased had
fallen;
on the way they met A1 A2 and A3 running on the tarmac going
towards Leqhutsung.

P.W.5
Tsietsi Setheki was employed as a nightwatchman at Spar Supermarket.
He deposed that on the 5th March 1988 he arrived at work
at about
5.00 p.m. while he was

7

attending
the dogs at the back of the supermarket he heard gun report. He
immediately came to the front of the supermarket and saw
the four
accused persons. A1 was coming up the read; when he came to the
deceased the latter fell down. He did not see what A1
did to the
deceased. ... and A3 belaboured the deceased with their sticks after
he had fallen down. They ran away when they noticed
that he was dead.
They were hitting him on the head. After that A4 came to him at the
gate and showed him a wound. He asked him
if he was happy that he had
been wounded. A4 went to the deceased and held him and bumped his
head against the gound. He searched
him but found nothing. A1 had
taken the gun of the deceased before he ran away.

P.W.5
testified that he knew A1 by sight. He often visited the home of the
parents of A1 because it is used as a shebeen for Sesotho
beer. He
saw A1 there on severs occasions. He denied that he mistook A1 for
another person. He recognized him very well as a person
he knew. A1
did not kick the deceased, he took the gun and ran away. He heard one
gun report and denied that there were several
gun reports.

P.W.6
'Matumahole Hlaeli corroborates P.W.4 that he had a quarrel with
P.W.4 and her husband. She saw when one man gave a knife
to A1. A2
and A3 came into the restaurant but did not do anything. P.W.6 says
that she went to the lavatory outside the restaurant.
When she came
back she met the deceased. A1 pointed at him and said that he had

8

caused
his arrest for unlawful possession of dagga. The deceased did not
answer him but went straight to the bus stop . When she
later went to
the other side of the road where the deceased had been assaulted she
met A1, A2 and A3. A3 was saying that the policeman
could not beat or
defeat him because he had defeated many policemen from the Orange
Free State. A1 was saying that he had eaten
or taken thai thing.

Dr.
Knight testified that on the 5th March, 1983 he was on duty at Hlotse
Government Hospital. The deceased was seen by him after
a history of
assault. He was unconscious and bleeding profusely from the mouth. He
had multiple lacerations all over the body,
especially on the head,
clinically he had multiple fractures of the skull and fracture of the
mandible. He was taken to the theatre
immediately and traceatomy was
done and blood transfusion given with all that rescucitation the
patient died within half an hour.

The
difficulty I have with the evidence of Dr. Knight is that the
original report he compiled on the 5th March. 1988 when his memory

was still very fresh and was then relying on the notes or the medical
chart, is lost. On the 13th August, 1988 he was approached
by the
police and asked to make another report. In compiling the present
report (Exhibit "A") he relied entirely on his
memory. Dr.
Knight appeared before me many times when I was the Senior Resident
Magistrate of Leribe. He is a very reliable witness
whose reports
were usually very comprehensive and

9

thorough
that they were usually admitted without much cross-examination.
However, in the instant case he was asked to make a report
from
memory of the events which occurred over five months ago. A doctor at
Hlotse Government Hospital attends to many patients
in just one
month. In five months Dr. Knight must have treated hundreds of
patients. Although Dr. Knight was not prepared that
he might have
made some mistakes, I think his report is unreliable, especially the
details of the injuries.

Dr. E. O.
Olusola performed a post-mortem examination on the deceased's corpse.
He found severe head and facial injuries with multiple
depressed
skull/mandibular fractures and intracranial haemorrhage. There was a
stabwound on centre of the throat and another stab
wound on the left
the wall. He said that the stabwound of the left chest wall did not
go into the lungs and had nothing to do with
the death of the
deceased. The head was like a cracked egg shell. He was of the view
that several blows must have been inflicted
to cause all those
fractures and that tremendous force must have been used to cause
those fractures. His report is Exhibit "C"
in these
proceedings.

I think
the report of Dr. Olusola is more reliable than that of Dr. Knight.
When he performed the post-mortem examination there
was no emergency
and had enough time to a proper observation. Although he did not
complete pages . and 3 of the post-mortem examination
form, I am
satisfied that all the injuries were observed and recorded on the
first page of the form. There is no doubt that the
assaulted

10

were so
severe that the head was completely disfigured.

A1
testified that on the day in question he went to Motsoeneng
restaurant at about 5.00 p.m. He remained at the restaurant for about

twenty minutes and downed four long-toms tins of beer during his stay
there. When he left for the bus stop it was raining. On his
arrival
at the bus stop A2, A3 and A4 were fighting with the deceased. They
were throwing stones at him while he (deceased) was
retreating and
was near the corner of the yard of Spar Supermarket. He rushed to the
accused and shouted at them but they seemed
not to hear him because
of the noise made by the vehicles passing on the road. He finally
came to the accused and passed them and
stood between them and the
deceased. He raised up his hands in order to stop throwing stones at
the deceased. He took a few steps
towards the accused but was hit on
the chest with a stone. He fell down. When he rose one Thabo Tsukutla
told him that someone
had taken the gun of the deceased and was
running away with it. He chased that person and caught him a very
long distance from
the scene of the crime and took the gun from him.
He returned to the scene of the crime and found that all the people
had left.
He went to his home and gave the gun to one Senatla Lebaka
(His deposition at the preparatory examination was admitted of the
defence.
He was P.W.3).

He denies
that he was given an open knife in the restaurant. He denies that he
caused the deceased to fall nor that he ever kicked
him. He did not
touch the deceased

11

at all.
He knew all his co-accused as well as the deceased and wanted to talk
to them to stop the fight. He admits that while he
was in the
restaurant he had a quarrel with , Khoro. He did not see the deceased
and he did not interviene in his altercation with
Khoro.

The
stories of A2 and A3 are the same and shall be treated together. On
the morning of the 5th March, 19 they went to Tsikoane Restaurant
and
bought eight (3) quart bottles of beer and drank with two of their
friends. Fro:.: there they went to Motsoeneng Restaurant
and one
'Malikose bought one quart bottle of beer for them. They drank it and
then went into the village of Matukeng where they
bought one babaton
scale of Sesotho beer and drank it. When they were about to leave
that place they heard sound of a gun coming
from the direction of the
bus stop. They rushed to that place and on the way someone reported
to them that A4 had been shot They
eventually came to A4 and asked
him who had shot him He pointed at the man who had shot him. As they
were still talking to A4 that
man came to them and threatened to
shock them on the buttocks. He immediately took out a gun and fired
at them. They did not see
where the bullet landed because they were
already running away and not facing that man.

They ran
for a short distance of about twenty paces and that man fired the
second shot. They turned and advanced towards the man.
He retreated
as they threw stones at him After crossing the road that man fired
again and went up the bank of the road. They followed
him and found
him sitting

12

down on
the top of the bank of the road. They went to him and hit him several
times with their sticks. A2 says that he hit the deceased
on the
belly and not on the head as alleged by some Crown witnesses. A3 hit
hit him on the head about three times.. Thereafter
they left for
their homes leaving the deceased lying prostrate on the ground. They
say that they did not foresee that the deceased
might die as a result
of their hitting him with sticks. They had no intention to kill him.
The deceased did not have any visible
injuries when they found him
sitting on the top of the bank of the road. He was still holding his
gun but no longer firing at them.
As they belaboured him he was still
trying to stand up and that gave them the impression that he was
still fighting and trying
to shoot them.

A3 says
that he was hitting the deceased very hard and knew that when a
person is hit in the manner he did he might die.

It is
quite correct that there were many people at, the bus stop when the
fight started and that the fight is correctly described
as a rough
and tumble. Nevertheless the main actors in the fight were clearly
seen by all the Crown witnesses. Moreover the main
actors themselves
do not deny taking some active part in the fight. The main actors in
the fight are the four accused before Court.

The
evidence against A1 is that he first had a quarrel with the husband
of P.W.4. It was during that quarrel

13

that a
certain person was seen taking out a knife from his sock and giving
it to A1. At that time the knife was apparently given
to him to stab
the husband of P.W. with it. P.W.2 says that the deceased was asked
to interviene because he was a policeman. On
the other hand P.W.4
whose husband was involved in the quarrel says that it was not the
deceased who was asked to intervene in
the quarrel out one Thebe
Letuka. I think the evidence of P.W.4 is more reliable on this point
because she asked Thebe Letuka to
intervene and the latter confirms
this in his deposition whi3ch was admitted by the defence. There is
evidence by P.W.1, P.W.2
and P.W.5 that after the fight against the
deceased had started A1 was seen going to the deceased and as soon as
he (A1) came near
the deceased the latter fell down. The witnesses
did not see what A1 did to the deceased but P.W.2 says that she saw
as if A1 held
the deceased on the throat. She says that while A2 and
A3 were hitting the deceased with sticks A1 was kicking him with his
shoes.

There is
evidence that after doing what he did to the deceased A1 took the gun
of the deceased and went away with it. P.W.4 says
that at one stage
A1 was throwing a stone at the deceased and that after the deceased
had fallen down A1 beckoned A2 and A3. When
they came they hit the
deceased with sticks.

A1 said
he went to the deceased because he wanted to stop A2 and A3 from
throwing stones at the deceased but was struck with a stone
and fell
down.

14

Mr.
Mphutlane, attorney for A1. submitted that the Crown has failed to
prove that A1 assaulted the deceased in any way. 1 have attempted
to
give a complete summary of the evidence of the Crown witnesses
regarding the participation of A1 in the killing of the deceased.
At
one stage he was seen throwing a stone at the deceased; at another
stage he was seen coming near the deceased and the latter
fell down;
at the last stage he was seen kicking the deceased. The most
important thing is to establish exactly what A1 did to
the deceased
before he fell down. No one saw exactly what he did but circumstances
indicate that he must have done something to
him. When the body of
the deceased was examined by Dr. Olusola it was discovered that there
was a stabwound on the left chest wall.
The evidence before this
Court is that just before this fight started if was given a knife by
someone and there is no evidence
that any of the accused stabbed the
deceased with a knife except A1, who approached him and caused him to
fall down. It seems to
me that the only reasonable inference to be
drawn from the facts proved is that A1 did something to the deceased
and felled him.
That something is that he stabbed him with a knife on
the left chest wall. It is also unlikely that the deceased fell
because he
was struck with a stones The witnesses did not see anybody
throw stones at the deceased at stage. He was standing alone above
the
bank of the road when A1 came to him. He beckoned the A2 and A3
after he had felled his victim.

Mr.
Mphutlane submitted that the Crown had not

15

established
any motive why A1 would wish to kill the deceased. 1 think this is
not quite correct because P.W.1 testified that when
he returned from
the lavatory A1 was standing at the door of the restaurant while the
deceased was coming out. A1 pointed at the
deceased and said, This
one caused my arrest for dagga." Deceased did not answer him but
went to the bus stop. It seems to
me that A1 had a motive and when he
discovered that the deceased was being attacked by his friends he
found an opportunity to revenge.
In fact if it had not been for A1's
attack upon the deceased it is quite clear that he would have reached
Spar Supermarket because
his assailants were still below the bank of
the road when A1 came to him and felled him.

A1 was
very aggressive that day and was prepared to attack other people for
no apparent reason. He first of all became very aggressive
to the
husband of P.W.4 and threatened to kill him. That was the time he was
given the knife.

I shall
deal with common purpose amongst the accused at a later stage of this
judgment. The story of A1 that he was hit on the chest
or on the
solar plexus is not true. All the people who were there did not see
that happen. of the Crown witnesses admits that A1
fell with the
deceased. But that does not mean that he was struck with a stone; he
fell when he stabbed the deceased with a knife.
It cannot reasonably
possibly be true that when A1 rose he straight away received a report
from one Thabo Tsukulu that a certain
man had taken the gun and that
he (A1) chased that man.

16

His
alleged intention was to protect the deceased from the attack by A2,
A3 and A4 who were throwing stones at the deceased. How
could he
leave the deceased lying there and being belaboured with sticks and
then concentrate on the recovery of a gun? And having
found the man
who was running away with the gun let him go scot-free without even
asking him his name? A1 was seen by many witnesses
taking the gun of
the deceased and going away with it.

A2 and A3
have no defence to the present charge. Their story that the deceased
fired at them when they asked A4 what had happened
to him is false
beyond any reasonable doubt. At the time they joined the fight the
deceased was already retreating from the onslaught
by A4. It is not
even. true that they threw stones at the deceased after A4 had told
them that he had been shot. They just joined
in the throwing of
stones when they saw that A4 was doing so. There is no question of
self-defence as far as A2, A3 and A4 are
concerned. The deceased was
obviously trying to stop them from coming to him by firing at the
ground infront of to try to scare
them away but they just kept on
advancing towards him. One of the witnesses said she could see made
going up as the deceased's
bullets hit the ground. It is common cause
that one of such bullets hit A4 and grazed him on the side of the
trunk. They followed
the deceased for a long distance of about one
hundred paces according to P.w.1 and went to him above the bank of
the road and belaboured
him with sticks after A1 had beckoned them.
A2 and A3 say that when they came to the deceased he was sitting down
and doing nothing
but still holding a gun.

17

A2 and A3
cannot claim that when they left the road and found the deceased
above the bank and sitting there without posing any danger
to their
lives, they were entitled to belabour him with their sticks in
self-defence.

In Rex v.
Attwood, 1946(1) A.D. 331 at p.340 Watermeyer, C.J. said:

" The accused would not have been entitled to an acquittal on
the ground that he was acting in self-defence unless it appeared
as a
reasonable possibility on the evidence that accused had been
unlawfully attacked and had reasonable grounds for thinking that
he
was in danger of death or serious injury, that the means of
self-defence which he used were not excessive in relation to the

danger and that the means he used were the only or least dangerous
means whereby he could have avoided the danger."

It is
trite law that where an accused exceeds the bounds of reasonable
self-defence and kills his assailant may be found guilty
of culpable
homicide despite the fact that the killing was intentional (R. v
Molife, 1940 A.D. 202 at 204.205). However, if the
excess was
immoderate a verdict of murder will be returned (R. v Mhlongo,
S.A.(A.D S.A. 574 (A.D.) at 581).

In the
instant case the question of self-defence does not arise. A2 and A3
were aggressors right from the beginning. They joined
in a fight that
did not concern them in any way.

18

Mr.
Teele, counsel for A2, A3 and A4 referred to Rex v Molibeli Rantsoti
1967-70 L.L.R 289 in which it was held that on a charge
of murder,
although self-defence, intoxication and provocation were raised and
each one was not made out, the combination of circumstances
arising
from all three defences sufficed to repel an inference of intention
to kill which was not discharged by the Crown. That
was a case in
which the Court found as a fact that the accused had been provoked
and that he had drunk a considerable amount of
liquor. In the instant
case there is no evidence of provocation or of self defence or any
intoxication to the extent that the accused
did not know what they
were doing. It can safely be accepted they had been drinking for a
greater part of that day but there is
nothing to show that they were
so drunk that they did not know what they were doing. They seem to
remember what they did that day
and this is an indication that they
were not too drunk

The
evidence against A4 has not been controverted in any way because he
did not give evidence. The story of that which was put to
the Crown
witnesses was that the decease found him outside the restaurant where
he was having a quarrel with another person. The
deceased hit him on
the chest with the butt of a gun and ordered him to stop the
nonsense. Later A4 went to the bus stop and found
the deceased there
with his wife. He said: "Ntate, you scared me with that gun."
It is alleged that the deceased went
into the road and said: "I
can shoot you." He pointed hit gun at A4 and shot him. This
story was denied by the wife of
the deceased (P.W.1) whose version of
how A4 started the fight is summed up above. Her version was
challenged in

19

cross-examination
but her denial convinced the Court. I think it was unwise of A4 not
to go into the witness box in order to enable
the other side to test
his story in cross-examination. I do not mean that A4 had to prove
his innocence but where there is a strong
prima facie evidence
against an accused person at the close of the Crown case, he may be
expected to give an explanation.

In R. v.
Dube, 1915 A.D. 557 at pp. 563,564 Innes, C.J. said:-

"The onus rested upon the Crown to establish her guilt. At the
same time the fact that she did not endeavour to explain the

circumstances of suspicion which the prosecu­tion had set up was
an element which the trial Court was entitled to take into

consideration."

The case
against A4 is that he threw stones and that when he found the
deceased already lying prostrate on the ground after he had
been
fatally assaulted by the other accused, he held him and bumped his
head against the ground. By so doing A4 was actually extending
the
injury already done to the head of the deceased.

The last
point I wish to deal with is whether the accused had a common
purpose. In R.v. Zwakala and another 1976 L.L.R. 221 at pp.
222-223
Mofokeng, J. summarized the law regarding common purpose as follows:

20

" In law it is clear that persons may be held liable for the
acts of each other if they act in pursuance of the same purpose
and
have agreed to share that purpose. Although persons may pursue the
same purpose, it is not common purpose until there has been
an
agreement, (R. v. Bayat and Others, 1947(4) S.A. 128(N). Moreover, to
have sufficient common purpose to murder, the persons
involved need
not plan together to bring about the death of the deceased any more
than the single accused must be shown to have
aimed at the death of
the deceased before he can be found guilty of murder. (R. v. Geere
and Others, 1952(2) S.A. 319 (A)). I therefore
come to the conclusion
that the two accused acted with a common purpose when they inflicted
the fatal injuries on the deceased.
But it must be remembered that in
law the basis of the guilt of a socius criminis is his own mens rea
(R. v. Nsele, 1955(2) S.A.
145 (A) at 151: R. v. Maqeba and Others,
1959 H.C.T.L.R. 71), because on a charge of murder where common
purpose has been established
it does not necessarily follow that the
same intent or absence of it must be imputed to all who took part in
its execution. (R.
v. Hercules, 1954(3) S.A. 826 (A))."

A1 aimed
and stabbed the deceased on the left chest wall which he must have
known to be a vulnerable part of the body. The force
used must have
been light because the doctor said the wound did not contribute to
the death of the deceased. However, it was severe
enough to cause him
to fall to the ground. After that A1 called A2 and A3 to come and
finish up the deceased. They did that by
belabouring the deceased
with sticks on the head. The evidence of that he struck the deceased
on the belly only cannot be reasonably
possibly true. He was seen by
P.M.5 Tsietsi Setheki that he was hitting the deceased on the head.
The doctor who performed a post-mortem
examination of the body of the
deceased found no wales or contusions on the belly

21

of the
deceased. Surely if the deceased had been struck on the belly in the
manner described by the A2 some wales or contusions
ought to have
been found on the belly.

There is
no doubt that A1, A2 and A3 acted in concideration and their
intention was to bring about the death of the deceased. A4's

participation was minimal but was sufficent to make him a party to
the common purpose. There is evidence that deceased was still
alive
when A4 came to his bumped' his head against the ground. The head had
already severely injured and the deceased was in any
case already
injured but still alive

In R. v.
Mgxwiti, 1954(1) S.A. 370 Schreiner. J.A. held that where an accused
person has joined in an assault which he knows to
be aimed at the
death of someone else, his responsibility for the ensuing death will
depend on whether the victim was alive at
the time when the accused
joined in the assault and not on whether the victim had or had not at
that stage received mortal injuries.
In the instant case the deceased
was still alive when 44 joined.

I come to
the conclusion that the Crown has proved beyond a reasonable doubt
that there was common purpose amongst all the accused
and that they
all had the request intention for murder in the form of dolus
eventual is. therefore find all the accused guilty
of murder.

My
assessors agree.

J.L.
KHEOLA

JUDGE

22

EXTENUATING
CIRCUMSTANCES

1.
Intoxication - There is ample evidence that all the accused had been
drinking beer for almost the whole day on that fateful day.
In their
evidence before this Court they gave the exact quantities of beer
they consumed at various place in the Tsikoane and Matukeng
areas. I
am satisfied that the liquor in some way affected their mental
faculties and their judgment and thereby influenced them
in regard to
the murder (S. v. Saaiman, 1967 (4) S.A. 440 (A.D.) S. v. Msila, 1966
(1) P.H., H159 (A.D.).

2.
Absence of factor justifying a finding of dolus directus. The
Appellate Division held in S.v. Sigwahla, 1967 (4) S.A. 566 (A.D.)
at
p. 571 that

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

   
   

2. While
   it cannot be said that this factor must necessarily be an
   extenuating circumstance", in many cases it may well be so,

   either alone or together with other factors, depending on the
   particular facts of the case."

   
   

23

I found
that there are extenuting circumstances.

SENTENCE:

A1, A2 and A3:- Sixteen (16) years' imprison­ment each.

A4:- Thirteen (13) years' imprisonment.

DISPOSAL
OF EXHIBITS:-

1. The
   revolver shall be given back to the police.

   
   

2. The
   blankets shall be given back to the accused from whom they were
   taken.

   
   

3. Sticks
   are forfeited to the Crown and shall be destroyed by the police.

   
   

J.L.
KHEOLA

JUDGE

29th
October, 1990.

For Crown
- Mr. Mokhobo

For
Accused one - Mr. Mphutlane

For three
others - Mr. Teele.