1

C. of A.
(CR) No. 10 of 1989

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

MACHABE
MOSALA First Appellant

NTOANE
MOSALA Second Appellant

SHETLENG
MOSENYE Third Appellant

TANKI
RATALANE Fourth Appellant

TSEKISO
RAPHANYANE Fifth Appellant

and

REX Respondent

Held at
Maseru

Ackermann,J.A.
Kotze,J.A.
Steyn,
J. A.

JUDGEMENT

Ackermann.
J. A.

The five
appellants (to whom I shall, for the sake of convenience, refer as
the "accused") were charged in the High Court
before Molai,
J. and two assessors with the murder of Chief Mafa Matete at
Mantsonyane Ha Mafa in the district of Thaba-Tseka
on the 14th July
1987.

The
accused all pleaded not guilty and, after the close of the Crown
case, gave evidence in their own defence. They were all five

convicted of murder and, extenuating circumstances having been found
in all their cases, sentenced as follows:

2

Accused
1: 10 years imprisonment.

Accused 2 and 3: 8 strokes with a light cane, to be administered
privately by a member of the prison staff.

Accused
4: 8 years imprisonment

Accused
5: 8 strokes with a light cane, to be

administered privately by a member of

the prison staff.

At the
time of their trial Accused 1 and 4 were adults; accused 2 was
sixteen years old and accused 3 and 5 both eighteen years
old.

All five
the accused appealed against their convictions but only accused 1 and
4 against their sentences.

It is
common cause that the deceased died on the 14th July 1987 as a result
of an assault on him by one or more persons. An understanding
of the
evidence concerning the events which led to the deceased's death is
complicated by the confused presentation of the evidence,
which
confusion was worse confounded by the
absence of any plan of the
scene of events. Such a plan would have contributed to some greater
clarity regarding the location of
houses and geographic features and
the positions and movements of witnesses and persons relevant to the
events on the day in
question. This task was further complicated
by the fact that cross-examining counsel frequently combined
argument, proposition and
query in the same question as well as
combining a number of propositions and queries in one question. This
made it difficult at
times to discern what the witness was assenting
to or
dissenting from. Witnesses were moreover allowed to refer to
exhibits without such exhibits being identified for the record.

3

Mrs.
'Mampoi Matete, the mother of the deceased, lived with the deceased
in his home at Ha Mafa at Mantsonyane. Ha Mafa is apparently
not a
compact village but consists of scattered households that are some
distance apart. On the 14th July 1987,
at dusk, and as a result of
a report she had received, Mrs. 'Mampoi Matete came upon the body of
the deceased lying beside a road
some three hundred yards from her
home. Her home is in a mountainous area and the place where she saw
her son's body was below
her home. It was at the time already so dark
that a torch
had to be used for her to identify the body. Mrs
Matete noticed two wounds on her son's body. A large wound on the
forehead oozing
blood and another wound near the ear. The deceased
was clearly already dead. She left her son's body in charge of
the
people who had congregated at the scene. Mrs Matete says that
the deceased was on friendly terms with Accused 1, who lives in the

same village.

The
investigating officer, Detective Mongaula (PW7), who removed the
deceased's body from the scene the next day and conveyed it
to the
St. James Hospital in Mantsonyane, stated that the place where he
found the body was near the home of Accused 1. He made

contemporaneous notes in his notebook of the injuries he noticed
on
the deceased's body. According to his evidence there were several
open wounds on the deceased's head, another open wound on his
right
jaw and certain ragged wounds above his left ankle which looked like
dog bites. In addition the deceased had
scratches on both legs.
Detective Mongaula estimates that the deceased had more than ten
wounds on his head.

4

From the
judgment of the trial Court it appears that defence counsel admitted
the correctness of the deposition made by one Mohau
Matete, the
deceased's uncle, at the preparatory examination. This admission was
apparently made in terms of
s. 273 of the Criminal Procedure and
Evidence Act, 1981. A note of caution needs to be sounded in this
regard.

In his
judgment in the court below Molai, J. stated that in terms of s. 273
this deposition "became evidence". It must
be pointed

out,
however, that s. 273 refers only to the admission of "any fact
relevant to the issue" and the fact that such admission"

shall be sufficient evidence of that fact". S. 273 is concerned
with the proof of facts by admission. It does not render the

deposition "evidence" in the present case as though it were
testimony in the trial before the Court a quo. The distinction
is
important. By "admitting" a deposition the accused or his
representative is in effect, but in a somewhat loose sense,
saying
that the correctness of the facts deposed to by the deponent is
admitted. No problem arises if there are no obscurities
or
contradictions in the deposition. If there are, doubts may arise as
to what precisely has been admitted. A further danger arises
if this
mode of admission leads to the erroneous belief that the deposition
becomes "evidence" at the

trial. It
might mistakenly be thought that conflict could arise between such
"evidence" and, for example, testimony given
or documents
proved at the trial. This would be incorrect, for once a fact
relevant to the issue has been admitted, such fact cannot
be
contradicted until the admission has been withdrawn or

5

otherwise
rendered inoperative in some legitimate way. For these reasons it is
important that, when admissions are recorded in terms
of s. 273 of
the Criminal Procedure and Evidence Act, such admissions are clearly
formulated. Failure to do so could lead to uncertainty
and confusion.

Returning
to the admission made in respect of the deposition of Mohau Matete;
it is stated therein by him that on the 15th July
he found the
deceased body above the home of Accused 1. He states that the body
was full of wounds "from the front part to
hind tip of the
head". One wound stretched from just above the left eye to the
left temporal region. There was an open wound
from under the left
nostril to the left cheek and a further open Agreement was also
reached between the Crown and the defence
regarding the
correctness of the written report compiled by the medical doctor who
performed the post-mortem examination on the
deceased's body. The
correctness of the contents was apparently admitted. According to
this report the deceased, described as young
Arican male who appeared
to be 40 years of age, had sustained the following injuries: a
laceration on the right parietal scalp,
a puncture wound and a
contusion on the left cheek. On examining the skull and its contents
a laceration was
found on the right parietal scalp and a depressed
fracture over the left parietal area which had caused a subdural
haematoma. The
doctor ascribed the cause of death to intracranial
bleeding as a result of the injury to the head. Molai, J. stated in
his

6

judgment
that he was "inclined to reject as false the medical report that
the deceased had sustained only three injuries on
the head and find
that the truth is in the evidence of PW 7 corroborated by Mohau
Matete that the deceased had, in fact,
sustained far more than
three open wounds on the head". In my view Molai, J. erred in so
finding. It would seem that the learned
judge fell into the very
error I alluded to above, viz. by treating the doctor's report, the
subject of the admission, as evidence
in the case which could be
evaluated and rejected as thought it had been given before the Court.
This he could not, in my view,
do. The admission was binding on all
the parties as well as the Court, and it must be accepted that the
injuries detailed in the
report were the only ones to be found on
post- mortem examination.

It seems
to be common cause, however, that the deceased died on the 14th July
1987 from intracranial bleeding caused by the head
injuries detailed
in the post-mortem report.

The only
issue at the trial and on appeal was whether the Crown had proved the
involvement of Accused 2, 3, 4 and 5 in the assault
on the deceased
and whether Accused 1's admitted assault on the deceased had exceeded
the bounds of self-defence and whether his
intention to kill the
deceased had been proven beyond
reasonable doubt.

The
background to. the assault on the deceased is difficult to piece
together from the evidence.

7

Mahlomola
Semoli (PW 1) lives near Mafeteng and testified that during 1986 two
head of cattle, belonging to him, a black animal
as well as a black
animal with white spots, went missing. One was apparently a cow and
with calf at the time. He reported the loss
to the police and
subsequently, in the company of Daniel Semoli (apparently also known
as Manyekemane Semoli, PW 2) saw the spotted
beast at the Marakabei
police station. Present at the police station were both the deceased
and Accused 1, apart from various police
officials. The deceased
informed the witness that his other cow was at Accused 1's home. PW 1
then decided to go to the home of
the deceased at Mantsonyane to look
for the other head of cattle. The deceased apparently warned him not
to go to Accused 1's home
directly because he would attack him and
rather search other parts of the village first. Accused 1 left first
for Mantsonyane driving
a donkey which had been released to him by
the police. The witness left for Mantsonyane some time later in the
company of the deceased,
PW 2 and one Lefulesele Raphoka and arrived
at Mantsonyane when the sun was setting. When they passed Accused 1's
kraal at Mantsonyane
they were attacked by dogs which, according to
the witness, had been set on them and were followed by many people,
including Accused
1. Some of these people, whom he could not
identify, threw stones at the witness and his companions. He and his
companions then
ran away and in the process some of the crowd
assaulted the deceased with sticks. In cross-examination he said that
at this stage
he heard the sound of three gunshots. They cried for
help but did not receive any help until they reached the deceased's
home where
they reported that the deceased was being assaulted. The
witness

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estimated
the distance between the place where they had been attacked by the
dogs and the deceased's home to be about 400 yards.
After spending
the night in the veld they reported the incident to the police at
Marakabei.

It was
put to the witness in cross-examination that he and his companions in
fact met the accused while they were still on their
way to the
village of Mantsonyane on the 14th July and that they in fact
attacked the accused with sticks. This was denied. It
was also put
to him that the cow at the police station was not his but belonged to
accused 1 or his brother and had the markings
of accused 1 or his
brother. The witness denied that he and the deceased were the
aggressors and that Accused 1 only assaulted
them in self-defence.
He denied that the deceased fired a fire- arm at Accused 1. He never
saw a fire-arm on the deceased. It was
also put to the witness that
he had attacked accused 1 at the river and that accused 1 thereupon
ran to one Montsi Lekhetho. This
was denied. The witness (so it was
suggested) followed Accused 1 and attacked him again near the village
of Mateu causing him to
run away and to leave his donkey behind. It
was also put to him that Accused 5 had eventually driven the donkey
to Mantsonyane.
All of this was denied.

Manyekemane
Semoli (PW 2) confirmed in his evidence that he, his brother
Mahlomola Semoli and Lefulesele Raphoka went to Marakabei
police
station where they found a black cow with white spots which he says,
belonged to Mahlomola Semoli. At a stage the deceased
and Accused 1
arrived. Both Mahlomola Semoli and

9

Accused 1
laid claim to the cow at the police station. In the presence of
Accused 1 the deceased stated that two cows had arrived
at his
village but that he drove them to Thaba Tseka because they did not
belong to Accused 1. The deceased mentioned
that there was another
cow at Mantsonyane, at Accused 1's place, which they could go and
identify. Accused 1 then left, apparently
to go to Mantsonyane, and
the witness, Lefulesele Raphoka and the deceased followed some time
later, arriving at
Mantsonyane at about sunset. On their way to
the deceased's place they passed Accused 1 's home and as they did so
were attacked
by a number of dogs. Accused 1 then appeared, in the
company of certain people whom the witness could not identify.
This
group then stated throwing stones at them. The witness and his
companions tried to run away up the hill. As they were running
the
witness heard the report of a gun. In cross- examination he said that
there could have been three shots. He turned around and
saw that the
deceased had fallen down and that the people in the company of
Accused 1 were "belabouring" him. The witness
and his
companions tried to enlist help, without success, and eventually went
to the deceased's home where they
reported what was happening to
the deceased's mother, Mrs 'Mampoi Matete. They then left, spent the
night in the veld, and returned
to Marakabei the next day to report
he events to the police. While they were at the police a report was
made that the
deceased had died. Later Accused 1 arrived carrying
a gun and said that he had obtained it from the deceased. The witness
had not
met either the deceased or his mother prior to the 14th July
1987. He did not at any stage on the day in question see the deceased

in possession of a fire-arm. It was only when

10

questioned
by Molai, J. at the conclusion of his evidence that the witness for
the very first time mentioned that Accused 3 had
formed part of the
group that had thrown stones at them.

Mrs.
'Malehola Motsiba (PW 3) lived at Mantsonyane and all five the
accused were known to her. The deceased was her cousin. The
house of
Accused 1 is situated approximately forty to forty-five paces from
her own home. On the day in question she was at home
and saw Accused
1 and 5 walking briskly past her house. They
were not driving a
donkey. They greeted her and as they passed by Accused 1 called out
to Accused 2 and warned him to get him sticks
because "there are
some people behind coming fighting He also warned him to "stand
in such a way that they should not
see that you are fighting".
In response Accused 2 ran into his house. Apparently Accused 3 and 4
were also on the scene but
the evidence in chief of the witness is
unclear as to when precise they arrived and as to whether the remarks
which Accused
addressed to Accused 2 were also addressed to any of
the other accused. The witness was about forty-five paces from
Accused when
Accused 1 spoke to Accused 2. When Accused 2 came out
with his two sticks, Accused 4 and 5 were outside Accused 1's house
At this
stage Accused 3 had run into the house of one Tankis Accused
1 then also reappeared with two sticks and with a blank wrapped
around
his hand and the sticks. He then proceeded below the kraal and
sat down. The "other people" were standing on the forecourt

(presumably of Accused 1's house). At that stage she saw the deceased
appearing with three men. She did not know the three men.
The
eceased greeted her and he and his

11

companions
passed near to her house. They apparently (I say "apparently"
because the evidence of the witness, who was
allowed to give her
testimony in a disjointed and often vague fashion, is not clear on
this point) proceeded up a rise towards
or past
Accused 1's kraal.
The deceased apparently proceeded a little ahead of his companions
and was standing on the top of a rise. Accused
1 then rushed out of
his kraal and "delivered a blow on these three men with a
stick". When asked by Crown Counsel which
of these men had been
struck the witness replied "to the middle
one". A fight
then started. The witness says she saw "that there was now
fighting hitting each other .......". After
the fighting
started, Accused 1's dogs rushed towards the deceased and his
companions. Thereupon the companions ran away, followed
by the
deceased. The witness says that the companions ran "sideways"
(presumably this means on a level plane) while the
deceased ran
"upwards" (presumably up the hill). Initially the witness
said that the fight was between Accused 1 and
the three
strangers.
Later in her evidence she added that Accused 2, 3, 4 and 5 also
participated in the fighting. The five accused ran after
the deceased
as he ran up the hill and disappeared from view. They came back after
a long time. On further questioning
in chief the witness stated
specifically that she saw Accused 2 hit the deceased. She could not
say where the blow landed. According
to her the accused were the
aggressors. She also subsequently said that the deceased and his
companions did not
retaliate. The deceased was wearing two
blankets, a pink one on top of another blanket, which were pinned to
his shoulders, and
carried a yellow plastic bag. According to the
witness, Accused 1 was wearing a white overall. In cross-examination
the witness

12

was vague
as to who started the fight and did not know whether or not the
deceased had attacked Accused 1 first. In cross- examination,
for the
first time, she mentioned that she had heard the sound of fire-arm
shooting at the scene of the fight. She
did not see anyone in
possession of a firearm, nor does she know who fired the firearm. She
did however state, in cross- examination,
that she heard the fire-arm
shots at the time the deceased and his companies were running away.
In answer to
questions put by the Court the witness stated that
when the deceased and his companions separated after they had started
running
away some of the accused chased the deceased and others
chased his companions. Accused 1 and 2 chased the deceased. She only
saw
Accused 2 land one blow on the deceased; she did not
see
whether Accused 1 hit him.

Lineo
Ranyali (PW 4) was fifteen years old when she testified. She lived in
Mantsonyane and was in standard four at school. On the
14th July 1987
she was sitting on a stone outside her home and saw Accused 1 passing
by on his way to his home. The witness said
that she remained sitting
on the stone throughout the events
to which she testified. Accused
1 was in the company of Accused 2 and as they passed by, at a
distance of some 12 to 15 paces from
the witness' home, she heard
Accused 1 tell Accused 2 "......go into the house and take the
sticks because there are some
people who are coming fighting".
Accused 2 went into a house and came
out carrying two wooden
sticks. Accused 1 thereupon told him "... you should not show
that you are fighting". Accused
1 stood in front of a kraal
while Accused 2 stood in the forecourt of the

13

kraal.
She then saw four men proceeding up the hill. The only member of this
group whom she recognised was the deceased. They proceeded
along a
path which passed behind Accused 1's kraal. At some stage Accused 1
moved from the point where he was standing, approached
the group who
were moving up the hill and hit one of
the group with a stick.
Stones were thrown at the group and dogs from the kraal of Accused 1
attacked them. The witness says that
Accused 2, 3, 4 and 5 threw the
stones. On being so attacked the group ran away, including the
deceased. The deceased ran behind
the others. They were running in
the direction of the deceased's
home. The accused apparently
pursued them and the witness heard Accused 1 shouting at Accused 2 to
hit the deceased on his feet.
The witness says that "they"
then proceeded to hit the deceased on his legs whereupon he fell
down. Before the deceased
fell down she heard three fire-arm reports.
Before the deceased fell
down he was at a distance of some eighty
paces from the witness. The witness did not know who fired the shots,
but she says that
they came from behind the deceased. The deceased
ran uphill along a road or path but when he fell he was about seven
paces
off the path. After the deceased fell all five the accused
assaulted him with "mabetlela" sticks. The point where this

assault took place was above the witness's home. The deceased got up
and tried to run away, but was again assaulted by the
accused.
After the accused had finished assaulting the deceased they all
returned to the kraal of Accused 1. The witness was adamant,
in
cross-examination, that the accused did not separate when chasing the
deceased's group (as suggested by the previous prosecution
witness)
but that they all chased after the deceased.
In her statement to
the magistrate the witness apparently said

14

that she
did not know who started the fight. She also there stated that the
fight started in the forecourt of Accused 1 and that
of the four men
who arrived that day the deceased "stood on top of the hill".
In her evidence in the Court a quo she
was
adamant, however, that
the fight started on the road above the kraal, some forty paces above
the kraal. The witness placed the time
of the events at about an hour
or two before sundown. On being questioned by the Court the witness
stated that the
deceased wore a pink blanket and carrying a yellow
plastic bag.

Mrs.
Petlane (PW 5), a woman some fifty five years of age, also testified
for the prosecution regarding the events on the day in
question. She
also resides at Ha Mafa Mantsonyane and was returning from Ha Toka to
her house, which caused her to pass
Accused 1's home at a distance
of some forty paces. At the time she was carrying a window frame on
her head, cushioned by a blanket
(presumably folded up). As she was
passing Accused 1's home she passed a man proceeding in roughly the
opposite
direction. He was wearing a pink blanket and carried a
plastic bag in his hand. After she had passed this man (clearly it
must have
been the deceased) she heard two fire-arm shots. She turned
around to see what was happening. She noticed a number of men,
wearing
grey blankets, chasing the deceased with a number of dogs. At
the same time they were assaulting him with sticks. She identified

the assailants as the five accused. Accused No. 1 instructed the
other assailants to hit the deceased on his feet.
The deceased
fell to the ground and the five accused proceeded to belabour him
with sticks. The witness started screaming and ran

15

away to a
neighbouring house, that of Mrs 'Mampoi Matete (PW 6). She was joined
by three unkown men who came running to the same
house. The witness
knows the five accused well. When she saw the deceased for the first
time he had passed Accused 1's kraal and
was on top of "the flat
rock" which, according to her, is
some two hundred yards from
Accused 1's kraal. It is above Accused 1 's kraal. When she saw the
deceased at this point he was alone
and walking quite peacefully. She
estimated that the home of PW 4 (Lineo Ramyali) is about sixty paces
from the home
of Accused 1. They are both on a slope. She
estimated that Accused 1's kraal is about fifty paces from the road.
At the stage when
she turned round and saw the deceased being chased
he was already some hundred and twenty paces above the flat
rock.
According to the record of the proceedings before the
Magistrate the witness apparently said that she first saw the
deceased standing
on a hill next to Accused 1 's home. The witness
says that her evidence before the magistrate was
incorrectly
transcribed.

Detective
Mongaula (PW 7), to whose evidence reference has already been made
earlier in this judgment, took possession of a . 22
Bereta pistol
with registration number 031684 N and six bullets when he arrived at
the scene of events at Mantsonyane on the 15th
July 1987. The pistol
was handed to him by policemen
named Silase and Khanyapa. He was
also handed a brown Okapi knife and a brown timber stick which had
been cut into pieces. Detective
Mongaula sent the pistol to be
examined at the firearm section of the C. I. D. at Manyekemane. It
was also checked

16

against
the register of fire-arms. The prosecution did not adduce any further
evidence regarding this firearm. One is accordingly
left in the dark
as to whether it was in working order, was registered in anyone's
name or had fingerprints on it.
The witness also said that he was
given certain sticks by Accused 2, 3 and 5 which were handed in as
exhibits. He could not say
which stick he received from which
particular accused.

All five
the accused testified in their own defence.

Accused 1
admitted assaulting the deceased on the day in question but denied
that he had the intention of killing him. Earlier that
day he had.
gone to the police station at Marakamei in response to a request by a
policeman called Konyana. Some time
previously an ox belonging to
Accused 1's younger brother had been taken from his (Accused 1's)
kraal by the police. It was a black
animal with white spots. Accused
1 had been in possession of the animal and the police had asked him
to come and explain why the
ox was in his possession. He arrived at
the police
station at 8 a. m. and found the Semoli brothers (PW 1
and PW 2), the deceased and a third person there. Rival claims were
made
to the ox but, according to Accused 1, he demonstrated from a
book which recorded the earmarks that the ox belonged to his brother.

The police thereupon told him to go home and fetch his
brother.
Accused 1 says that a donkey, which had been removed by
the police together with the ox, was then released to him and he
proceeded
to return home (i. De. to Mantsonyane) with it.

17

On his
way home and as he was crossing a river near Ha Mateu Accused 1 saw
the four persons whom he had earlier seen at the police
station. At
the time he was carrying a piece of plastic rope with which he was
driving the donkey,. He also had with him the book
recording the
cattle earmarkings. Mahlomola Semoli (PW 1) approached him and
demanded to see the rope. Accused 1 refused and continued
on his way.
PW 1 then moved ahead, turned round and aimed a blow at him with his
stick, which Accused 1 managed to ward off. Accused
1 ran away,
abandoning his donkey at the river. In the process he also lost his
book of ear markings. As he was running away he
saw Accused 5 on a
ridge and asked him for a stick. Accused 5 did not have one with him.
Further up the hill Accused 1 met one
Moutsi Lekhetho. At a

later
stage (from his evidence it does not emerge clearly when) Accused 1
saw Accused 5 again, driving his donkey in the direction
of
Mantsonyane. He also realised that the deceased's companions were
still pursuing him. When Accused 1 reached his

kraal he
found Accused 2, 3 and 4 putting his animals in the kraal. He told
them that a group of men were trying to fight with him
and that they
(Accused 2, 3 and 4) were to fetch their sticks so that they could
meet any attack from the group. Accused 1 himself
went to fetch two
sticks. He then saw the group approaching and noticed that at a
particular fork in the road they took the branch
that leads to
Accused 1's home. Accused 1 apparently has two houses, situated on
the slope of the hill, one higher than the other.
He saw the deceased
standing in the forecourt of the top house while the other three
members of the group were standing in the
forecourt of the lower
house. He

18

went to
the forecourt of the lower house to find out what the men wanted. The
deceased was the only one to respond; he called out
to his companions
to catch Accused 1 and kill him. The three other men thereupon
wrapped their blankets round their arms, raised
their sticks and came
towards Accused 1. Accused 1 raised
his own sticks. When the men
were quite close to him Accused 1's dogs attacked them, whereupon the
Semoli brothers and the third
man ran away. As they ran away Accused
2, 3 and 4 threw stones at them. As Accused 1 was about to join the
chase he heard a gun
fire. He turned to face the deceased, saw him
pointing a fire- arm in his direction and heard a second shot. The
firearm was similar
to the Bereta pistol handed in as an exhibit by
Detective Mongaula. Accused 1 rushed at the deceased and a third shot
went off.

Accused 1
then struck the deceased several times with his stick on the head.
The deceased then ran away. Accused 1 followed him
and hit him on the
back with his stick while the deceased was running away. In
cross-examination it emerged that he also hit the
deceased several
times on the back of his head as he was
running away. As the
deceased was running away he was still, according to Accused 1,
trying to fire his weapon. After running for
some eighty paces the
deceased fell to the ground as a result of one of the blows which
Accused 1 had struck him. As the
deceased fell the pistol fell
from his hands. Accused 1 picked it up and went to his home. He did
not see the deceased getting up
again. According to Accused 1,
Accused 5 was not on the scene at all.

19

Accused 1
says that the only disagreement he had with deceased, who was his
Chief, was in regard to the deceased's refusal to give
him cattle
"bewyse". I understand "bewyse" to be
certificates of ownership relating to cattle. Save for this,
he
and
the deceased were on cordial terms. He had been a subject of the
deceased for some ten years.

Montsi
Lekhetho, who was called by the defence, also lives in Mantsonyane.
He says that he saw three men chasing Accused 1 near
the river.
Accused 1 came to the witness, who heard him asking the deceased to
return his book of earmarkings. A little
while later he spoke to
the three other men who had been in the deceased's company. They said
that they were chasing Accused 1 because
he had taken their cattle. A
short while later the deceased also came up to him and he asked the
deceased why his
companions were fighting with Accused 1. The
deceased replied that he did not know but that he had heard them
saying that Accused
1 had taken their cattle. He accompanied the
deceased to his (the witness's) house at Ha Mateu. After a short
sojourn there the
deceased left for his home at Mantsonyane. The
witness remained at his home at Hu Mateu.

In
cross-examination he stated that he did not see the deceased in
possession of a fire-arm on the day in question. He also did
not see
Accused 1 driving a donkey.

Accused
2, who is a younger brother of Accused 1, was living with him at the
time of the events which form the subject matter of
the

20

present
case. He confirms that when Accused 1 came home at sunset on the 14th
July 1987, he reported that some people were coming
to fight with
him. Accused 2 went to fetch his sticks (presumably at the request of
Accused 1) but was told by
Accused 1 not to do anything if these
persons did not fight with them. He saw the three men as well as the
deceased arrive at Accused
1's kraal. He confirms in broad outline
the version of Accused 1 as to how events unfolded. He confirms that
he was a
party to chasing after the deceased's three companions
and that he also threw stones at them. Some of the stones actually
hit the
fugitives. He took part in the chase until they reached the
fields at a place called Lekhalong. There he and his
companions
stopped and returned home. Accused 2 says that he heard
the firing of the gun as they were busy chasing the three men. He
heard
three shots. When Accused 2 returned home he found Accused 1
there. Accused 1 at some stage produced a fire-arm.
He also took
Accused 2 to the forecourt of the upper house where Accused 2 saw a
hat and a yellow plastic Checkers packet.

Accused
3, although he is no relation of Accused 1, lives at the Tatter's
home where he is employed as a herdboy. He confirms that
when Accused
1 arrived home at sundown on the day in question he asked Accused 2,
3 and 4 to get their sticks, as
there were people who were
spoiling for a fight with Accused 1, but he also cautioned them not
to fight if these other people did
not start a fight. Accused 3
fetched his stick and together with Accused 1, 2 and. 4 went to stand
near the stable which was
adjacent to the kraal. He saw the men to
whom Accused 1 had

21

referred
coming up the valley in their direction. The deceased went to the
forecourt of the upper house whilst his companions went
to the
forecourt of the lower house. Deceased told these other men to kill
Accused 1 and that he would assist them if they

were
overpowered by Accused 1. The deceased's companions proceeded to wrap
their arms in their blankets, raised their sticks and
advanced on the
Accused 1. The dogs then attacked these men who ran away. Accused 2,
3 and 4 chased them and threw stones at them.
As they were chasing
them, Accused 3 heard 3 gunshots. They continued chasing the other
men because they wanted to beat them up
badly because they had
started the fight. They gave up the chase at the fields at Lekhalong
and returned to Accused 1's house.
Accused 5 only made his appearance
after they returned to Accused 1's house. Accused 1 exhibited a
firearm to them. He also saw
the deceased's hat and Checkers bag in
the forecourt of Accused 1's house. Accused 1 admitted to the other
accused that he had
beaten the deceased. Accused 3 flatly denies

ever
having beaten the deceased. It was put to this accused in
cross-examination that he was well aware of the fact that Accused
1
had an unlicensed pistol. He denied that he had ever seen a pistol in
Accused 1's possession. He estimates that they chased the
deceased's
companions for a distance of about three hundred yards before giving
up the chase.

Accused 4
lives in Mantsonyane in the home of one Tankiso, the grandfather of
Accused 5. He and Accused 1 often helped one another
with the
grazing and herding of cattle. In general his account of the events
that occurred on the 14th July 1987 co-

22

incides
with that of the previous accused. He says that shortly before the
deceased and his companions arrived on the scene he saw
Accused 5
come to the house where he (Accused 4) lived. On his version Accused
5 did not participate in any assault, either
on the deceased or on
any of his companions. For the rest his version is in accord with
that of the first three accused. He also
confirms that the deceased
was standing in the forecourt of the upper house and that his three
companions were standing in
the forecourt of the lower house. He
also heard the sound of three gun shots coming from behind him while
he was chasing the deceased's
three companions. He is also quite
emphatic in his evidence that during all the time he had worked in
conjunction
with Accused 1 he never saw him in possession of a
fire-arm.

Accused 5
lives with his grandfather, one Tankiso, in the village of
Manyekemane. At the time of the trial he was, as already indicated,

18 years old. Apparently he and Accused 1 are nephews. On the day in
question he saw Accused 1, the deceased
and three unknown men at a
river in the vicinity of Manyekemane. He stated that two of these men
gave evidence for the prosecution
in the present case. He first saw
Accused 1 and then the deceased and the three men following behind
Accused 1. At a
certain stage he saw one of the men raising a
stick as though to strike Accused 1, who appeared to ward of the
blow. Accused 1 ran
off with the three unknown men chasing him. The
deceased remained on the bridge over the river. It emerged
subsequently
(albeit inferentially) from Accused 5's evidence that
Accused 1 had been driving a donkey with him at the time when he was

3

accosted
by the deceased's companions and that he abandoned the donkey when he
ran away. Accused 1 came running to Accused 5 and
asked him for a
stick with which to defend himself. Accused 5 did not have a stick
and Accused 1 proceeded to run in the direction
of a man standing at
a ridge near Mateu. Accused 5 went down to the river to fetch Accused
1's donkey which he drove along with
him. He caught up with Accused 1
and together they returned to Mantsonyane. The deceased and his
companions were apparently also
proceeding in the direction of
Mantsonyane. Accused 5 says that at a village called Thoteng it
appeared that the deceased's group
had separated, two walking in the
same direction as Accused 1 and 5 and the other two in another
direction. Two of these men tried
to outflank and stop the two
accused, whereupon Accused 5 abandoned driving the donkey and ran
away in the company of Accused 1.
At the home of 'Malehola Accused 1
and 5 parted, Accused 5 going to his own home. As they parted Accused
1 asked Accused 5 to fetch
his stick, in view of the fact that the
deceased's companions were trying to attack Accused 1, and to come to
Accused 1's assistance
in case these men came to Accused 1's home.
Accused 5 said that he was afraid and did not comply with Accused 1's
request. He remained
at the home of his grandfather, Tankiso, and
while there heard shots being fired. He did not venture out until his
grandfather
came home who reported to him that Accused 1 had been
assaulting the deceased. Only at this stage did he go to Accused 1's
home
where Accused 1 showed him a gun which he said he had taken from
the deceased. Accused- 5 denied having been a party to any assault
on
the deceased.

4

Although
the court a quo found Mahlomola Semoli (PW 1) not to have been an
honest witness regarding the number of calves his one
cow could have
had in the period it went missing, the court accepted his evidence
and that of his brother Manyekemane Semoli (PW
2) to the effect that
after leaving the police station on the 14th of July they did not
again encounter Accused 1 until they reached
Mantsonyane towards
sunset that day. In the judgment the following finding is recorded:

"Having regard to this and other discrepancies in their evidence
I am not convinced that No. 1 accused No. 5 accused and DW
2 were
testifying to
the truth when they said No. 1 accused was assaulted
or chased by PW 1, PW 2 and their companion at the river next to the
village
of Ha Mathew. In my view, the truth is in the evidence of PW
1 and PW 2 that from Marakabei police post they and the deceased
boarded
a bus in which they travelled to Yeats' shop at Mantsonyane
from where they walked to the village of Ha Mafa and they neither met

nor assaulted No. 1 accused in the manner described by the defence
evidence. "

In this
passage Molai J. states that he is "not convinced that No. 1
accused, No. 5 ccused and DW 2 were testifying to the
truth
........." In my view this constitutes a misdirection regarding
the burden of proof in a criminal case. The accused
do
not have to
convince the court of the existence of any facts nor does the Court
have to be convinced that they are speaking the
truth. The test is
whether the version of the accused can reasonably possibly be true.

Before
dealing specifically with the Courts' above finding a few general
remarks are necessary. Without the benefit of a map or
plan or
photographs of the terrain (either of the large area

25

between
the police station at Marakabei and the village of Mantsonyane or of
the smaller area of Mantsonyane or of the houses featuring
in the
events of the 14th July) it is difficult (if not dangerous) to fault
the description given by a witness of
such terrain or of events
taking place on such terrain (particularly where it is mountainous)
or to establish a significant contradiction
between what two
witnesses have said or between what a witness has said on different
occasions. Apart
from the mere bald statements by witnesses, it is
also not possible to establish with any certainty what positions on
the terrain
are visible or not visible from other positions; or what
a witness ought or ought not to have seen at or from a
particular
place in the sequence of events.

Even
after a careful perusal of the evidence one is left with a persisting
impression full story has not been told on either side.

In regard
to the above quoted finding by the Court a quo it must be remembered
that Accused 1's version is corroborated by Accused
5 and by Montsi
Lekhetho. It is true that their versions of events at or near the
river do not always correspond in every minute
detail. Nonetheless
they are in substantial agreement. It is also true that the evidence
of Accused 5 is not above criticism regarding
his movements, the
succession of events or his faculties of recollection. Yet I am far
from satisfied that
the evidence of these three witnesses about
what happened at and near the river that day is a concocted
fabrication. I believe it

26

would
have been difficult to sustain a concoction with such apparent
conviction. There is, moreover, support to be found in the
evidence
of other prosecution witnesses for the fact that there had been some
prior incident of the nature testified to by
Accused 1 and 5. Mrs.
Motsiba (PW 3) refers in her evidence to the statement on the scene
by Accused 1 that "there are some
people behind coming
fighting". There was no suggestion, cm either version, of any
fighting at the Marakabei police station.
It seems distinctly
improbable that Accused 1 would have made such a statement if he had
not seen the prosecution witnesses in question
at all after leaving
the police station and if there had been no trouble between them.
That Accused 1 made such a
statement is confirmed by Lineo Ranyali
(PW 4). In my judgment it cannot be said that the version of the
accused on this particular
issue is not reasonably possibly true.

An
unsatisfactory aspect of the prosecution case relates to the Beretta
pistol which, it is common cause, Accused 1 handed to the
police and
which he said he had wrested from the deceased. It is common cause
that the pistol was examined at the firearm section
of the C. I. D.
and checked against the register of fire-arms. If
the results were
entirely negative and did not advance the prosecution or the defence
cases either way, one would have expected
that such evidence would
have been led by the prosecution. The fact that the matter was left
to rest in total obscurity, without
any explanation, warrants the
inference that the evidence regarding the fire-arm would not have
supported the state version. It
is also unlikely that Accused 1 would
have

27

handed
the pistol to the police if he had used it. The evidence of the
Semilo brothers regarding the fire-arm is also cause for
discomfort.
Mahlomola Semoli omitted all reference to gun shots in his
evidence-in-chief while his brother only mentioned one
shot in his
evidence-in-chief. It seems most unlikely that if Accused 1 had fired
the pistol these witnesses would not have seen
him do so. The case
which the prosecution sought to establish was that Accused 1 was
anxiously soliciting stick
weapons and helpers in order to attack
the deceased and his company with sticks and that by persistently
attacking the deceased
with a stick, Accused 1 had manifested the
intention to kill him. If that were indeed his intention it would
have been
so much easier to use the fire-arm at close quarters.
Molai, J. was therefore fully justified in adopting the approach,
which he
clearly has done, that the case had to be decided on the
basis that Accused 1's version regarding the use of the firearm
was
reasonably possibly true.

This
conclusion does not of course redound to the credibility of the
Semoli brothers.

Molai, J.
rightly approached the evidence of the 15 year old Lenoe Ranyali with
caution, not only because of her youth and timidity
but because her
powers of recall appear to have been suspect. Molai, J. also found,
rightly in my view, that Mrs. Petlane's positive
identification of
Accused 2, 3, 4 and 5 could not be accepted.

28

It
appears that great reliance was placed by the Court a quo on the
evidence of Mrs. 'Malehola Motsiba (PW 3) and the question which

arises is whether the Court was entitled to do so, when weighed
against the evidence of the five accused. She was not an entirely

disinterested witness, because the deceased was her cousin. Her
evidence was not unmarked by some confusion and uncertainty. One
is a
little surprised by the fact that she could hear so clearly what
Accused 1 was saying to Accused 2 at a distance of some forty-five

yards. She says that at one stage Accused 3 ran into Tankiso's house.
This seems somewhat improbable, quite apart from the fact
that
Accused 3's evidence is to the contrary. The unchallenged evidence of
Accused 3 is that he lived in Accused's 1 home. There
would
accordingly be no reason for him to have entered Tankiso's house,
particularly if he had wanted to collect his stick. It
is moreover
significant that it is Accused 5 who in fact lives in Tankiso's
house. The question which arises is whether Mrs. Motsiba
was not
mistaken in thinking that it was Accused 3 who entered this house,
whereas in fact it was Accused 5. Accused 5 in fact
says that he
entered Tankiso's house before the fighting and remained there until
well after the fighting had stopped. There are,
moreover, important
contradictions in her evidence. At one stage she said that Accused 1
had struck the deceased's three companions
with a stick. This cannot
be correct because neither of the Semoli brothers makes such a
complaint. She subsequently adjusted her
statement by saying that
Accused 1 had struck the "middle one" with a stick. Had
this been the case one would have expected
the Semoli brothers to
have had knowledge of this fact. Initially

29

Mrs
Motsiba said that the opposing factions were "hitting each
other". She later etracted this and stated that the deceased

and his companions did not retaliate. In cross-examination she became
vague as to who had started the fight and could not say
whether or
not the deceased had attacked Accused 1 first. Initially Mrs Motsiba
said that Accused 1 fought with the three strangers
but later added
that Accused 2, 3, 4 and 5 also joined in. At one stage in her
evidence she said that all five the
accused pursued the deceased
as he ran up the hill and disappeared from view. They only came back
after a long time. Yet at another
stage in her evidence she said that
the deceased ran up the hill whereas his companions ran on a level
plane. If
this is indeed so it would have been impossible for all
the accused, at one and the same time, to have attacked both the
deceased
and his companions. At a subsequent stage of her evidence
the witness said that the deceased and his companions
separated
when they started running away and that some of the accused chased
the deceased while some chased, his companions. She
ultimately says
that Accused 1 and 2 were the persons who chased the deceased. She
only saw Accused 2 land one blow on the deceased
and did not see
whether Accused 1 hit him. It is also significant, I believe, for the
reasons already mentioned, that Mrs. Motsiba
makes no mention at all
in her evidence-in-chief of any shots being fired. In my view these
features detract
materially from her credibility and reliability
as a witness.

It is
convenient to deal with the convictions against Accused 2, 3, 4 and 5
first. The evidence of all five accused regarding the

30

attack
itself and their participation in it is clear and mutually
corroborating. Accused 5 did not take part in any attack at any
stage
at all. Only Accused 1 was involved with the deceased and with no
attack on anyone else. The deceased was standing in the
fore-court
of the upper house when the fight began whereas his companions were
standing in the fore-court of the lower house. Only
Accused 2, 3 and
4 took part in the attack on the deceased's companions and took no
part in the attack on the deceased
himself.

The
danger in a case such as the present is not that the identifying
evidence placing Accused 2, 3 and 4 on the scene might be unreliable,

because they admit being on the scene, but that the evidence
connecting them all with a specific attack on
the deceased is. The
evidence of Accused 1, 2, 3 and 4 to the effect that the deceased and
his companions were separated and that
separate attacks took place on
the deceased and his companions is to some extent confirmed by the
evidence of Mrs.
Motsiba in the respects above referred to. There
must have been great confusion on the scene, with dogs barking and a
pistol being
fired. Visibility could not have been ideal; the events
took place at sundown, in winter and on a mountainous terrain.
In
addition the house of Accused 1 was some forty-five paces from that
of Mrs. Motsiba and the actual fighting must have taken place
even
further away. In the light of the version testified to by Accused 1,
2, 3 and 4 it has not, in my view, been
established beyond
reasonable doubt that Accused 2, 3 and 4 participated in any way in
the attack on the deceased. There

31

also does
not seem to be a sound basis for convicting them of any offence
against the deceased on the basis of any common purpose
with Accused
1. The trouble which had previously arisen, was between Accused 1 and
the deceaseds* companions, not between Accused
1 and the deceased. It
was not reasonably to be expected
that the deceased, their chief,
would gratuitously open fire on Accused 1 (on his version) or that
Accused 1 would without apparent
reason batter the deceased in the
way he did (on the prosecution version). The accused were charged
with the murder
of the deceased, not with any offence against his
companions. It follows, from what I have already said, that Accused
2, 3 and 4
ought not to have been convicted of murdering the
deceased, nor is there any basis on which to convict them of any
lesser crime
against the deceased.

In the
light of the aforegoing, the prosecution's case against Accused 5 is
even weaker. Accused 5 and all the other accused are
quite emphatic
that Accused 5 did not take part at all in any of the skirmishes or
assaults that day. Either this is true or a
deliberately concocted
fabrication by all five accused. There seems to me to be no
conceivable reason why, if Accused 5 had taken
part in the fight that
afternoon, there would have been a conspiracy of perjury to remove
him altogether from the scene,
while at the same time keeping
Accused 2 and 3 (also youths) on the scene. In my view the conviction
against Accused 5 can also
not stand.

32

The case
against Accused 1 stands on an entirely different footing. On his own
version, which in my view must, in its general import,
be accepted as
being reasonably possibly true, he was the only person o assault the
deceased. On his ersion all the material
injuries inflicted to the
deceased's head were inflicted by him. It is common cause that these
injuries caused the deceased's death.
In the case of Accused 1 only
two issues arise, namely, whether the Crown has proved beyond
reasonable doubt (a) that the killing
of deceased was unlawful and
(b)
that Accused 1 had the necessary subjective intention to kill
the deceased.

Accused
1's case is that he acted within the bounds of self- defence in order
to prevent the deceased from killing him. In the first
place it is
improbable that Accused 1 could really have thought that the deceased
intended to kill him by shooting him
with a pistol. At no stage
earlier that day, either at the police or at the river, had the
deceased adopted an aggressive or threatening
attitude towards him.
The deceased laid no personal claim to the cattle in dispute, nor was
their any animosity
between them. The deceased was after all the
chief in this particular area and it seems unlikely that he would in
cold blood have
shot Accused 1 to death, particularly when, on the
version of Accused 1, Accused 1 was not involved in the
aggression
towards the deceased's companions. The retaliation
against the deceased's companions by Accused 2, 3 and 4 was, even on
their version,
excessive and unwarranted. Faced with the vicious
attack by the dogs, the deceased's companions immediately ran

33

away,
quite clearly indicating that they were abandoning any physical
aggression which they might initially have contemplated. There
was no
warrant for chasing them, attacking them or throwing stones at them.
Under these circumstances it seems far more likely
that the shots
fired by the deceased were not aimed at the accused but were warning
shots aimed at ending the fight. After he had
fired the third shot
the deceased was assaulted by Accused 1. Upon being hit by Accused 1
's stick the deceased started running
away. Whatever fears Accused 1
might originally have
had, once the deceased had started running
away there was no justification for ccused 1 to follow him and to
continue assaulting
him. There was no danger to Accused 1 if he
remainedat his home and sought shelter there. Nevertheless he decided
topursue the
deceased and to strike him several blows with his stick
on the back of his head. This continued for some eighty paces, the
deceased
eventually collapsing as a result of one of the blows which
had landed on his head.

There can
be no doubt, in my view, that by pursuing the fleeing deceased for
some eighty yards and by hitting him several blows
from behind on his
head with his stick, Accused 1 clearly and knowingly exceeded the
bounds of reasonable self defence. His
explanation that the
deceased was still trying to fire shots at him while running away is
quite unconvincing. The deceased had fired
three shots before being
hit by Accused 1. Had he wanted to fire more he could easily have
done so. In any event, even if
he had tried to shoot at Accused 1
after he had commenced running away, this would have constituted
legitimate self-defence. At

34

this
stage he had (even on Accused 1's version) abandoned whatever initial
design he might have had against Accused 1. He had obviously
done so
because of the power of Accused 1's retaliation. He was running away
in order to secure safety from
the continued attack on him, an
attack which could (and indeed did) cause him serious bodily harm.
Under these circumstances he
would have been entitled to defend
himself. In my view the prosecution established beyond reasonable
doubt that Accused 1 clearly
and materially exceeded the bounds of
any self-defence
and that his killing of the deceased was
therefore unlawful.

The next
issue to consider is whether there is adequate proof that Accused 1
intended to kill the deceased. The accused says that
he did not
intend to kill him. Does the totality of circumstantial, evidence
prove the contrary beyond reasonable
doubt? It cannot be inferred
from the fact that Accused 1 had prepared himself and certain of his
co-accused for a fight against
the deceased's companions that he had
at that stage already intended to kill the deceased. He might not
even have
anticipated getting into a fight with the deceased. The
attack was not pre-meditated.

If proper
medical evidence had been led it might have been possible to
establish how serious the wounds were which were found on
the
deceased at post mortem examination. It has already been found in
this judgment that the correctness of the post-
mortem report
cannot be rejected, inasmuch as its correctness was formally
admitted. Whatever the lay witnesses thought they had

35

identified
as wounds, or whatever injuries Accused 1 thought he had inflicted on
the deceased, the fact of the matter is that on
the basis of the
post-mortem report only three injuries of any relevance were found,
namely, the laceration on the right
parietal scalp and the two
injuries on the left cheek. The depressed fracture over the left
parietal area which caused the subdural
haematoma is clearly below
and associated with the laceration on the right parietal scalp. In
the absence of expert
medical evidence it is not possible to say
that more than three blows caused these injuries; nor is it possible
to say how severe,
depressed or extensive the depressed fracture is
nor how much force was required to cause it. In the absence of any
such
factual basis it would be dangerous, on lay speculative
inference alone, to conclude beyond reasonable doubt that Accused 1
must
actually and subjectively have foreseen, in the heat of the
moment, that the blows which caused these injuries might
reasonably
cause the deceased's death, and that he was reckless as to whether
death ensued or not. In my view it could not safely
have been found
that the proven facts, in the light of the post-mortem report, led to
an inference of such a nature beyond
reasonable doubt. It follows
from this that Accused 1 ought not to have been convicted of murder.

There can
be no doubt, however, that Accused 1 ought reasonably to have
foreseen that the blows he inflicted on the deceased's head
could
cause his death. In failing to do so he was negligent, and
accordingly his unlawful killing of the deceased
constituted the
crime of culpable homicide. A conviction of

36

culpable
homicide would have been the correct and competent verdict.

In view
of the conclusion that Accused 1 ought only to have been convicted of
culpable homicide we are at large on the matter of
sentence. This is
a serious case of culpable homicide, resulting from a deliberate
attack with a dangerous weapon. The deceased
was a person in
authority who, on the available evidence, had been trying to resolve
a dispute between contending parties and to
restore order after a
fight had broken out. It would have been of assistance to this Court
if the learned trial Judge had recorded
the relevant personal
circumstances of Accused 1 in his judgment on sentence. In view of
the fact that Accused 1 was sentenced
some three years ago this would
not, because of the delay involved, be an appropriate case to refer
back to the trial judge for
the re-imposition of sentence. Under the
circumstances this Court must do the best it can on the record. In my
view an appropriate
sentence would be one of 5 (five) years
imprisonment.

The
following order is made:

1. The
appeals of Accused 2, 3, 4 and 5 succeed and their convictions and
sentences are all set aside.

37

2. The appeal of
Accused 1 succeeds to the follow extent:

2.1
Accused 1's conviction of murder is set aside and for it is
substituted a conviction of culpable homicide;

2.2
Accused 1's sentence of 10 years imprisonment is set aside and for it
is substituted a sentence of 5 (five) years imprisonment.

L.W.H.ACKERMANN
JUDGE
OF APPEAL

I agree:

G.P.C.KOTZE
JUDGE
OF APPEAL

J.H.STEYN
JUDGE
OF APPEAL

DELIVERED
at MASERU this 13TH day of NOVEMBER 1992.