CRI/T/9/1982

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

'NAUOA
KHACHA

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 23rd day of
November 1982

The
accused before me 'NAUOA KHACHA is indicted upon a charge of
murdering Mpholo Mojaki (the deceased) on or about 4th December
1979
at or near Zakaria's in the district of Butha Buthe. The particulars
read that he did so jointly with other persons unknown
but whilst
acting together.

On the
4th December 1979 the deceased, a shopkeeper and trader, left Libono
village driving his van, accompanied by Khahliso Ramosebi,
(PW1)
related by clan to the deceased and at the material time working for
him as a shop assistant, to purchase goods for his shop
from Butha
Buthe. That was sometime during the morning.

Having
made his purchases, the deceased and Khahliso set off driving back
home. They had to pass Lepatoa village but did not intend
to stop
there. That was sometime during the early afternoon. Khahliso
testifies that the van was stopped by a man who, for convenience
I
shall call Mr. X. He was in the middle of the road at or near Lepatoa
village bus stop. The deceased parked his van by the roadside.
Mr. X
was joined soon afterwards by another man carrying a gun, who for
convenience I shall call Mr. Y. From the description of
their clothes
Khahliso concluded they(i.e. X and Y) were soldiers of the PMU (Para
Military Unit). They asked the deceased and
Khahliso about their
names and their relationship to each other which they gave. They
searched the vehicle and threw the groceries
on the ground. They
asked the deceased for his passport, tax receipts, drivers permit,
and trading licence. The deceased produced
all these, which 'were
perused and then returned. The deceased and Khahliso were told to
stand side by side on the edge of the

2

road. Y
asked X to "go and call others". After sometime the accused
and another man, who for convenience I shall call
Mr. Z, in what the
witness thought were civilian clothes, arrived together with X.
Amongst the groceries on the ground was a bottle
of brandy. The
accused remarked that he can finish the bottle in one gulto. He did
not, however, do so. 7 who came with the accused
asked the deceased
his name. The deceased gave it whereupon Z replied "I have been
looking for you and found you today".
The deceased asked why he
was being treated in this fashion and X, Y or Z (it is not clear who)
but not the accused replied "You
will learn why later. You will
be taken to Butha Buthe and you will answer there". The witness
Khahliso picked up the groceries
and stood some seventy yards away
(pointed) waiting for the bus since the groceries that were unloaded
were heavy and she had still
some distance to get home. She did
however notice the accused, deceased, and another man, who could have
been either X or Z, get
into the van cabin, and one man, the one
holding the gun, who could be Y, get onto the back of the van. The
van which was open,
i.e. with no canope, passed her by and stopped on
the road towards Phamong village 300 yards away (pointed). The
accused was driving.
The bus arrived. The witness boarded it, got
home to Libono, and informed deceased's wife of what happened.

Masetefane
Lerotholi (PW2) lives in a small village called Bochabela. The
villagers draw water from a well nearby situate in a depression,
and
having organised a Letsema (working party) for the following day, she
had gone to draw water. She testifies that on her third
journey,
after having collected the water in a container which she placed on
her head, and whilst on the road leading to the village
she saw the
accused driving deceased's van, with deceased and another man next to
him and one man at the back. The accused raised
his hand in a
greeting gesture and continued driving whilst she proceeded home,
poured in the water she had collected in a larger
Sesotho jar, and
was on her way back to the well for the fourth time which she said
would have been her last trip. This was mid
afternoon.

Approaching
the well she testifies that she saw the deceased's van parked on a
slope off and below the main road. Further below
by the stream, and
not very close to the van, she saw the accused, the deceased, and two
other men both the latter with guns. One
of these two men wore a blue
blanket

3

and the
other a brown blanket. Accused held a sjambok. She saw accused and
the other two men assaulting and kicking the deceased.
They were
urging the deceased to get up end run. He did so but with difficulty.
The man with the blue blanket vent in front of
the deceased, looked
him in the face, ordered him to raise his hands, aimed the gun at
him, and shot. The deceased fell. The witness
says she picked up her
can and fled to her mother-in-law's house to inform her what
happened. As she was fleeing she heard another
shot. Later whilst at
her mother-in-law's she saw accused and the other two men with the
guns emerge from the depression and take
a westerly direction.

The
depositions of Tae Nako (PW4 at the preparatory examination) and that
of doctor Ewals(PW6 at the preparatory examination) were
admitted by
the defence in terms of s.273 of the Criminal Procedure and Evidence
Act 1981. Nako's evidence (he was also called
by the Court to testify
mainly about locations and distances) was that he was the village
headman of Bochabela responsible to Chief
Zakaria of the village
bearing his name, which was nearby. According to W/0 Moahloli it was
l½ km away. On the morning of
the 5th December 1979 Nako was
on his way to Ha Zakaria to report on some matters to the chief and
noticed that the deceased's
van was off the road on a slope towards
the well. He went to investigate but found no one. After reporting to
chief Zakaria he
vent back to the scene and found the deceased's
body.

Detective
W/0 Moahloli(PW3) who was second in command in Butha Buthe CID,
arrived at the scene with other police officers on the
5th. The van,
Reg. No. B0084, was 100 yards below the main road and he could see
its wheel marks on virgin terrain. The key of
the vehicle was inside
the switch but the gear lever was missing. Later he was shown the
deceased's body. He knew deceased from
before as well as his vehicle.
The body was some 50 yards from the vehicle. The officer, who had 18
years service in the CID, testifies
that be was familiar with gun
shot wounds having investigated a number of similar cases before. He
saw two wounds on the head.
He thought the wound on the lip, which
was scorched, indicated firing at close range and was the entry of a
bullet, end the wound
on the b?ck of the neck was the exit of a
bullet. The officer did indeed find a spent bullet near the body
which he took possession
of. He

4

arranged
for the body to be taken to Butha Buthe mortuary and attended the
post mortem on the 6th December. He did not however conduct
further
investigations into the case because he was transferred to another
district, His superior officer, a Lt. Khosa, was informed
about the
finding of the spent bullet. He had left it in his office drawer when
he was transferred,

Dr Ewals
performed the post mortem on the 6th. The deceased had one wound on
the upper lip of about 1 cm with "black"
around this wound.
The "black skin" could have been caused by a "gun shot
explosive". There was another large
open wound of about 6 cm in
diameter at the back side of the neck. Inside the wound "there
were many fragments of broken fracture".
Inside the mouth there
was a wound with many "bones fracture". He attributed the
cause of death to fracture of the neck.
He did not know whether the
shot was fired from close range or not, for he was not an expert, but
it was possible that it was fired
from a close range according to the
condition of the wound.

The
accused testifies that Khahliso and Masetefane have concocted their
evidence for on that day he was working in his garden situate
a
little distance from his house in the village of Lepatoa attending to
crops and was nowhere near Bochabela well. He had no hand
in the
deceased's death. His wife Mamahlapela (DW1) supported him. They
learnt of deceased's death on the morning of the 5th December
from
the acting chieftainess of Lepatoa. On the same or following day 6th
December he took his animals to the cattle post some
distance away
because the chief had given an order in November to all the villagers
that cattle should be taken there. He cannot
remember how many days
he stayed at the cattle post. He was going and coming back home.

The
deceased and the accused are related. Accused says deceased is his
father's cousin, I do not think the exact relationship is
important
suffice it to say that the accused says the deceased supported the
BCP (Basotho Congress Party) and I accept that, whilst
he the accused
supported the BNP (Basotho National Party). I have no evidence of the
deceased's political activities other than
what the accused says. The
accused's activities consisted firstly of belonging to the PVR(Police
Volunteer Reserve -see Order 33
of 1970 Vol XV Laws of Lesotho p.
376) in Lepatoa, and secondly he had /allocated

5

allocated
a house in his compound to accommodate members of the PMU (Para
Military Unit) when they came to the village as a result
of the
activities of an organisation called the LLA (Lesotho Liberation
Army) in Butha Buthe area. The W/0 speaks of instability
and a number
of politically motivated killings at the time with many bodies found
in the veld close to the borders. Accused confirms
this. Chief
Lepatoa himself was killed about a month before the incident giving
rise to these proceedings allegedly by the LLA.
The accused says the
LLA had attacked his own home at night and he was rescued only by the
timely arrival of some members of the
PMU in a vehicle whereupon the
LLA fled. That was before the deceased's death.

Khahliso
(PW1) is related to the accused. The accused's father is the elder
brother of her father and she calls him uncle. She had
known him for
many years. Masetefane is not related to the accused although she had
known him for some years. She was not related
to the deceased either
but had known him for many years as he lived in an adjoining village
to her own parents'. The accused confirms
his blood relationship with
Khahliso, He also knows Masetefane and says he is not related to her.
He says that apart from the fact
that Khahliso and her father are BCP
sympathisers he cited two previous incidents which may have
contributed to her false evidence
implicating him. In 1978 the
accused says he was helping Khanliso's brother to repair a spacegram
using a screw-driver which somehow
got lost, and he (Khahliso's
brother) told accused later that she (Khahliso) had suspected him of
stealing it. The screw­driver
was eventually found by Khahliso's
brother. The second incident, also in the same year happened when
Khahliso's father (whom the
accused visited) had given him a pipe as
a gift but Khahliso's brother told him (the accused) that Khahliso
was saying that he
stole the pipe from her father. The accused says
he complained to Khahliso's father about her false accusations.
Khahliso denied
that she was a BCP sympathiser and says she was still
young (looked in her twenties) newly married and had not made up her
mind
which party to join. She denied any knowledge of the
screw-driver and pipe episodes. Her father, she says, does not smoke
a pipe.

The
accused attributed Masetefane's false evidence to purely political
motives for there was no personal animosity. She had denied
that she
was either a BCP member or a

6

sympathiser.
She is a woman in her early forties and had spent many years in the
Republic. The accused says he knows that she is
a BCP supporter
because he had seen her going to the house of Moshe or Moses, a BCP
activist,wearing BCP colours and chanting BCP
songs.

The
accused says he does not possess a Sandringham blanket brownish in
colour with purple stripes or patches, (this is how the two
witnesses
described what he was wearing on that day) nor does he own a sjambok,
and had never driven a vehicle.

The
accused's home is some 300 yards (pointed) as the crow flies from the
spot where Khahliso and the deceased were stopped by X
and Y at
Lepatoa bus stop. The little hamlet of Bochabela (70 tax payers) and
the well near which the deceased and his vehicle
were found is stated
to be (by Nako) one hour on foot from Lepatoa (the accused's home)
half an hour on horseback, and some five
minutes by motor car. Some
houses of Lepatoa can be seen from Bochabela. I have no reason to
suspect major inaccuracies in Nako's
evidence as he had been a
headman there for forty years. He knew that Malefetsane had organised
a "letsema" for the 5th
December but did not know that she
had been drawing water in preparation for the event on the 4th
December. The well 1s used by
Bochabela villagers. It is some 150
yards (pointed) across the main road from the village as the crow
flies although villagers
have to follow a circuituous and longer
route and cannot reach it in direct straight line,

Masetefane
had testified that at least two other persons may have witnessed the
beating and or the shooting, One was Manthabiseng,
who was in front
of her on the road that leads to the well. Masetefane adds that as
she was about to make her descent (the vehicle
was not yet within her
sight) she saw Manthabiseng running away. When the shooting started
she saw one Seabata Tsoeu, an elderly
man of Ha Zakaria village,
herding his cow on an adjoining hillock. He was in a position to see.
He too left his cow behind and
fled.

It is
conceded by counsel for the Crown and counsel for the defence that
the accused's fate depends entirely on the credibility
of the two
ladies as opposed to the accused's and his wife's. There is no onus
on the accused to prove anything, and if at the
end of the day, the
Court entertains any doubt about the veracity of the testimonies

7

of the
Crown witnesses, the accused is entitled to an acquittal. That
correctly summarises the law.

Mr.
Cilliers for the defence submitted, however, that even if the Court
comes to the conclusion that the accused was present at
the well when
the man in the blue blanket shot the deceased dead, the Crown has not
adduced evidence from which the Court can infer
(beyond reasonable
doubt and within the test laid in R. v Blom 1939 AD 188) that the
accused had made common cause with the killer
to render him guilty of
murder, and the only verdict that the Court can bring is one of an
assault. Mr. Kamalanathan for the Crown
submits that if the two
ladies were believed, the nature of the defence is such that the
Court must infer that the accused made
common cause not merely to
give the deceased a beating but to kill him.

Mr.
Cilliers attacks the two lady witnesses on a number of grounds. He
submits that they were politically motivated in favour of
the BCP and
must have been got at, either through pressure from the family, or
from the party, to falsely implicate the accused
a well-known
supporter of the opposite party. He says that apart from that, the
episodes of the screw-driver and the pipe demonstrate
that Khahliso
had the tendency of fabricating accusations against the accused and
her evidence against him on this charge is the
last of a series. He
submits further that the other witness Masetefane betrayed her bias
when the Court, of its own motion, indicated
that it wishes to call
Manthabiseng and Seabata as Court witnesses,because when Masetefane
was asked for the details of how they
could be traced she volunteered
the information that both have fled the village since the incident.
The Court did in fact initiate
steps through Crown Counsel to find
their whereabouts but was informed that they no longer lived in the
village.

Mr.
Cilliers pointed to a number of discrepancies :

1. The
   colour of the blanket accused was wearing. Khahliso says it was a
   sandringham brownish with purple stripes at the trial but
   brownish
   at the preparatory examination (p.4 line 28). Masetefane said it was
   brownish at the preparatory examination (p.6 line
   5) and only added
   the purple at the trial and after Khahliso had given her evidence
   thus indicating they discussed the former's
   evidence about the
   blanket overnight.

   
   

8

2. Khahliso
   says only one of the persons she met carried a gun whilst Masetefane
   says she saw two each carrying a gun.

   
   

3. Khahliso
   at the trial says there were three persons, including the accused,
   in the front, and one at the back carrying a gun,
   but on
   cross-examination she says there may have been two in the back when
   they passed her at the bus stop as she testified at
   the preparatory
   examination(p. 5 line 9).

   
   

4. Masetefane
   at the trial (and the preparatory examination p.5 lines 28-29)says
   there were three personsin the van cabin and one
   person at the back
   when the vehicle passed her on the road when coming back to the
   village carrying the can of water on her third
   trip but at the
   inquest the magistrate had recorded her as saying that there were
   three persons in the front cabin excluding
   the deceased.

   
   

Mr.
Cilliers finally asks how is it that Khahliso had not protested to
the accused who is her uncle at the roadside

when the
deceased was stopped, why had she not raised an alarm, why had she
not gone straight to accused's wife at their house (only
300 yards
away) to make a report and waited until she got to Libono?

I do not
find the discrepancies material. It should be remembered that the two
lady witnesses were interviewed firstly by the police
(Lt Khosa or
men under him at Butha Buthe) who took down their statements not very
long after the deceased was killed, and then
secondly they appeared
before a magistrate who held an inquest in August 1981, that is 20
months after the incident; and then thirdly
they appeared again
before a different magistrate who conducted the preparatory
examination in February 1982, that is 26 months
after the incident;
and finally before me in October 1982, some 34 months after the
incident. I would have been surprised if there
had been no
disrepancies. Some of the "discrepancies" have been
reasonably explained by the two witnesses. Masetefane
says she told
the magistrate at the preparatory examination that the accused's
blanket had purple stripes to the predominent brown
and that he
failed to record it. She denied discussing the case overnight with
Khahliso. At the inquest the magistrate recorded
that there were 3
persons excluding the deceased whilst she said she told him including
the deceased for if it had been otherwise

9

they
would have asked her to describe what the fifth man was wearing.
Khahliso says she might have said there were five persons
three in
front and two at the back, but explained that the incident happened a
long time ago (which is true) but she was sure one,
at the back, held
a gun, and this she could not have forgotten. She also says she was
frightened and confused which is quite understandable,
and she did
not know accused's wife well enough to make the first report to her,
and I think she could hardly have done so if accused
was involved in
the kidnapping of the deceased.

The other
"discrepancies" are more apparent than real. When the
deceased's vehicle with Khahliso on board was stopped
at Lepatoa it
was early in the afternoon. When the vehicle was seen by Masetefane
in the depression near the well of Bochabela
it was later in the
afternoon. Indeed we are unable to say, if the men, apart from the
deceased and the accused that Khahliso saw
in deceased's vehicle,
were necessarily the same men that Masetefane saw near the well for
sometime must have elapsed between the
first sighting at Lepatoa bus
stop and the second and third sightings of Masetefane of the vehicle
once when passing her on the
road, and then when she saw it at the
well.

Now there
is no possibility, in a case like this, of mistaken identity, and it
does not appear to me important what colour of blanket
accused was
wearing for the accused is Khahliso's uncle and she had known him for
many years and is known to Masetefane as well
as they met in drinking
places and were acquainted with each other.

They both
said they had not made up their mind to join any political party, but
even assuming they were BCP sympathisers, the question
that must be
asked is whether they have gone to the extent of bringing a
completely innocent man and a low ranking member of the
BNP and put
him where they said he was. If they were "got at" by party
and family one would have thought that they would
try and implicate
someone higher up in the heirarchy. In addition the accused was on
visiting terms with Khahliso's parents. It
is said that blood is
thicker than water. She gave her evidence in a candid and
straightforward manner, did not exaggerate the
role accused played at
the bus stop and I exclude entirely the suggestion that she was
concocting a story. Masetefane's evidence
was also most impressive,
she was forthright, and certainly not shaken in cross

10

examination.
The fact that she heard that Manthabiseng and Seabata had fled does
not indicate bias. She too collected her children
and went back to
her parental home and so did Khahliso.

The two
witnesses testify that they have never seen the accused drive a
vehicle before and he says that he does not drive at all.
If the two
witnesses were acting in concert knowing he does not drive, one would
have thought that they would have put him next
to somebody else (not
in the driver's seat) to make their evidence more watertight.

It is
true that the accused gives me an alibi, supported by his wife, and
that no onus lies on him to prove it, or anything else,
(R v Biya
1952(4) SA 514 AD) and it is sufficient if a doubt is created in the
mind of the Court, or that it may reasonably be
true, to entitle him
to an acquittal. Alibi evidence cannot, however, be considered in
isolation of other evidence, the surrounding
circumstances, and the
demeanour of the witnesses in the box, including the accused's if he
elects to enter it. (R. v Hlongwane
1959(3) SA AD 337 at 340 G to 341
B).

There is
firstly no difficulty about the identification, for accused is
well-known, secondly there is no question of vast distances

separating the place or places the witnesses say they have seen the
accused and the place or places where the accused says he actually

was. Accused's own admission is that the Lepatoa bus stop (where
Khahliso saw him) is only 300 yards away from his home and the

Bochabela road and well (where Masetefane saw him) is some 5 minutes
drive by car according to Nako. In addition he had staying
in his
compound on the relevant date PMU personnel. It is true that Khahliso
was unable to estimate how long it took the man X
to fetch him but it
is clear that it could not have been a long time.

Thirdly
there is the accused's demeanour in the box. He cut a very sorry
picture indeed answering the most pertinent questions with
evasion.
His evidence about the screw-driver and pipe did not have a genuine
ring of truth, his conduct in leaving his home on
5th or 6th December
to go to the cattle post after he learnt the deceased was found shot
dead on the 5th not so far from his own
home (and deceased was a
fairly close relative) does not lend credence to his

11

essertion
of non involvement in his death, and his insistence that he remembers
precisely his movements on the 4th, but not other
dates when, if he
had no hand in deceased's death, he had no cause to remember,
convinces me beyond any shadow of doubt and within
the totality of
the evidence that his alibi is false and his wife's support, quite
clearly in this instance, does not improve upon
it.

There is
no doubt that the onus lies on the Crown to prove common intent to
murder but Mr. Cilliers submits the evidence of Khahliso
at the bus
stop discloses no common purpose (on accused's part) to commit murder
because

1. The
   accused was fetched from his home by X and arrived at the bus stop
   where deceased was being held with another man 2.

   
   

2. The
   words the accused uttered were to the effect that he is able to
   drink the bottle of brandy in one gulp and that proves nothing:
   it
   was the other man Z (who came with him and X) who said words to the
   effect "I have been looking for you for a long time
   and today I
   have found you". In other words the identification of the
   deceased as a BCP supporter, who may have had a hand
   in the
   disturbances prevalent in Butha Buthe,including perhaps the slaying
   of Chief Lepatoa, was not laid by the accused himself
   for surely he
   knew very well where the deceased lived and had his cafe; it was
   surely not difficult for the accused to trace
   the deceased or to
   give information as to where he could be traced well before he was
   stopped at Lepatoa.

   
   

3. The
   last thing that Khahliso heard before being ordered to pick the
   groceries and go was the deceased protesting at the way he
   was being
   treated and demanding to know the reasons. It was either X or Z who
   replied that he will know the reasons when they
   got to Butha Buthe.
   The argument is that if the accused agreed to go he himself was not
   to know what the others were contemplating.
   What he knew was that
   the deceased would be legitimately interrogated at Butha Buthe.

   
   

4. It
   cannot be inferred (beyond reasonable doubt) from the accused's
   conduct in the detention and the driving of the deceased towards

   Butha Buthe that he had subjectly encompassed deceased's death for
   he was himself probably under the Percy of (or the command
   of as Mr.
   Cilliers put it) of the man or men who held the gun or guns. 5. It
   is not known what happened between the time

   
   

12

Khahliso
saw the vehicle being driven in the direction of Butha Buthe with the
deceased aboard and the time

Masetefane
saw the events below the well. Accused's role there consisted only of
assault on the deceased and from that evidence
alone, it could not be
irresistibly inferred that he subjectively knew or had made common
cause with the man who saw the deceased
dead.

Mr.
Kamalanathan contends that inferences favourable to the accused must
be based on evidence heard and not on speculation. If the
Court finds
as a fact that he was present the irresistible conclusion is that the
accused foresaw that the deceased would be killed.

This is
an important question of law which is not easy of determination. I
asked Mr. Cilliers to cite authorities for the proposition
that
favourable inferences can be drawn outside the ambit of facts as
believed. His contention is that the issues are separate
but no
precedents were cited save Blom supra, on inferences. I must however
confess that I have in the course of many years on
the Lesotho bench
tried several dozen accused persons on charges of murder. On a number
of occasions I heard prosecution witnesses
testify that the accused
spoke and behaved in a drunken manner to the extent that I, as the
trial officer, felt at the end of the
Crown case, that there was an
even chance that the accused may not have forced the specific intent
to kill but that there was a
case to answer for murder nevertheless,
only for the accused to go into the witness boy to say that he was
perfectly sober. That
kind of evidence by an accused did not per se
induce me to accept what he says, and resolve the question of intent
in favour of
the Crown. And on some occasions, on similar prosecution
evidence, the accused would go into the box only to testify he was
not
present at all; and that evidence, if not believed, did not per
se induce me to find that specific intent to kill has been proved.

The
situation in this case, however, as different for the events below
the well witnessed by Masetefane must of necessity throw
adverse
light on the apparent innocuous conduct of the accused in the events
earlier at the bus stop witnessed by Khahliso. Below
the well the
accused has been seen sjamboking and kicking the deceased in company
of two armed men who were doing the the. Common
purpose may be formed
instantanuously. The witness Masetefane spoke of the per x the
deceased, who was having difficulty,

13

whether
from physical punishment or fright at the possibility of impending
death, to stand up and run. She spoke in the plural.
And accused was
seen coming out of the depression together with the two men with guns
one of whom had shot deceased dead. When
added to his entire denial
of presence there no other verdict can, in my view, be brought except
one of murder and I so find. This
verdict accords with the law as
laid in S. v Mailings and others 1963(1) SA 692, and R. v Mashaile
end others 1971-1973 LLR P 163.

If
however I am wrong, and if, whatever the circumstances, every
equivocal piece of evidence, must end up in a favourable inference

contrary to the tenor of events and the accused's own evidence then I
have no doubt that the accused is guilty of being an accessory
after
the fact to the crime of murder.

My
assessors agree.

CHIEF
JUSTICE

23rd
November, 1982

For Crown
: Mr. Kamalanathan

For
Defence: Mr. Cilliers

14

EXISTENCE
OR OTHERWISE OF EXTENUATING CIRCUMSTANCES

Mr.
Cilliers did not call evidence on extenuation but he submitted that
on the Crown's own evidence these do exist. The accused
it was
submitted is morally less blameworthy for the following reasons :

1. The
   accused is a socius criminis not a principal. He did not do the
   killing. The post mortem report showed no signs that the sjamboking

   or kicking had contributed to deceased's death. The extent of the
   accused's involvement was minimal.

   
   

2. There
   was no dolus directus. The accused was invited to come to the bus
   stop where deceased was held. He did not identify deceased
   to the
   soldiers as a BCP active supporter. This was done by someone else.
   He added that the accused could have believed that
   the deceased
   would be taken to Butha Buthe for interrogation. The Court's finding
   that accused foresaw the possibility of death
   was not arrived at
   because he had manifested an intent to kill from inception but
   rather, that it came about from recklessness
   of the consequences.
   The dolus was eventualis.

   
   

3. The
   accused was an ignorant peasant farmer who was accompanied by two
   people carrying guns intent on mischief and,in a way, if
   he was
   not,under duress, he was certainly under their influence to do
   something to show he sympathised with them.

   
   

4. There
   was no evidence of premeditation on accused's part.

   
   

5. The
   political instability in that part of the country at the time,
   including the murder of his own chief, may have prayed on accused's

   mind to go along with the killers up to a certain point but no
   further and found himself helpless thereafter.

   
   

Mr.
Cilliers cited S. v X. 1974(1) SA 344 especially p. 348.

On the
evidence as I believed it accused is definitely engaged in a cover
up. He was certainly not candid with the Court but it
is not
difficult to appreciate that the actual killers may have exerted (and
still exerting) upon him pressure to keep his mouth
shut. It would be
unrealistic, I think, to

15

take this
as an aggravating factor that cancels out the cumulative effect of
the points in extenuation raised by Mr. Cilliers.

I am
firmly convinced that this is not a case that justifies imposing the
ultimate penalty and I accept that extenuating circumstances
exist.

My
assessors agree.

SENTENCE:
12 years imprisonment.

CHIEF
JUSTICE

30th
November 1982