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CRI/T/53/92
IN THE HIGH COURT OF LESOTHO
In the Matter of:
REX
v
TS'OTLEHO MOTSAMAI
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 23rd day of March. 1993,
The accused has pleaded not guilty to a charge of murder on the following allegations:
"Upon or about the 6th day of June, 1989 and at or near Ha Leaoa in the district of Thaba-Tseka the said accused, acting in concert with one Malefetsane Makhamisa (since deceased), did unlawfully and intentionally kill Motsamai Leaoa."
At the commencement of the trial, Mr. Hlaoli, counsel for the defence, admitted, on behalf of the accused person, the deposition of D/Tper Matete who was P.W.7 at the proceedings of the Preparatory Examination and the post-
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mortem Examination report compiled by the medical doctor who had conducted the autopsy on the dead body of the deceased. Mr, Qhomane, who represents the crown in this trial, accepted the admissions made by the defence counsel. The deposition of D/Tper Matete and the post mortem examination report became evidence and it was unnecessary, therefore, to call both D/Tper Matete and the medical doctor as witnesses in this trial.
The evidence of D/Tper. Matete was to the effect that, on 6th June, 1989, he had received a certain information following which he proceeded to a house in the village of Ha Leaoa where he found two dead bodies, one of which was identified to him as being that of the deceased, Motsamai Leaoa. Re examined the bodies for injuries and found that the deceased had sustained multiple injuries viz. an open wound behind the left ear, an open wound on the right jaw, another wound behind the neck, swollen hands and a gaping wound on the chest. He conveyed the two bodies to Paray hospital from where the body of the deceased was taken to the mortuary at Queen Elizabeth II hospital in Maseru. It sustained no additional injuries whilst it was being transported from Ha Leaoa to Paray hospital and Maseru.
A post-mortem examination was performed on the dead body of the deceased in his (D/Tper. Matete's) presence at the mortuary of Queen
Elizabeth II hospital. In the course
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of the examination, a bullet was found in the chest of the dead body of the deceased. The bullet was handed to him and had since been in the custody of the police.
the post-mortem examination report compiled by the medical Doctor who had examined the body of the deceased was, by consent of both counsels, handed in, from the bar, as exhibit "A" in this trial. According to exhibit "A", on 14th June, 1989 a medical Doctor at Queen Elizabeth II hospital performed a post-mortem examination on a deceased body of a male Mosotho adult. The body was identified before him as that of the deceased, Motsamai Leaoa, by Tlohang Leaoa and Lefu Leaoa. This is confirmed by both Tlohang Leaoa and Lefu Leaoa who have testified as P.W.6 and P.W.1, respectively, in this trial.
The external examination revealed that the deceased had sustained multiple injuries e.g. 0.5 on wound around the 8th rib at the back of the right side of the chest, 0.5cm laceration on the left side of the neck and a rugged laceration on the 7th rib area. On opening the body, the medical Doctor found that the deceased had sustained a fractured left mandible, a laceration on the left side of the tongue, a perforation of the right side aorta, a ruptured pulmonary artery, a perforation of the right lobe of the lung and a huge haematoma on the right lung. A bullet was found lodged in the 2nd intercostal area.
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From these findings the medical doctor formed the opinion that the death of the deceased was due to internal haemorrhage and collapse of the right lung as a results of
the injuries that had been inflicted upon him.
I can think of no good reason why the opinion of the medical doctor that the death of the deceased was brought about as a result of the injuries that had been inflicted upon him should be doubted. The question that remains for the determination of the court is whether or not the accused is the person who inflicted the injuries on the deceased end, therefore, brought about his death.
It is not really disputed that prior to 6th June, 1989, the accused had been away from his home village of Ha Leaoa, According to the crown evidence, the accused disappeared from the village some time in April, 1989 after he had severely assaulted a person by the name of Mpho. The accused admitted having fought with Mpho. The matter was, however, amicably settled. According to him, the accused then took a horse to his elder brother, Lebohang, who ran a cafe business at a place called Mphosong. He denied, therefore, the suggestion that he had run away from his home village as a result of his fight with Mpho.
Whether or not the accused left home as a result of his fight with Mpho is immaterial. What is important is,
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in my mind, that it is common cause that prior to 6th June, 1989, the accused had, for some time, been away from his home village of Ha Leaoa.
It is further common cause that on the day in question, 6th June, 1989, the deceased had asked some people to help harvest barley in hie field on the out skirts of his village of Ha leaoa. He, himself left home for a place called Ha Maiane alias Tsieng Ha Leoka. On his way back home, the deceased apparently went via his barley field. He gave some bundles of barley to the people who had been working on the field, presumably as a reward. Before he and the people who had been helping him to harvest his barley could proceed on their way back home, the deceased noticed a school teacher by the name of 'Makhethang Tlolotlolo passing on a foot path next to the field. She was accompanied by small children. The deceased then called at the school teacher and asked her to send the children to come and get some barley for her horse. The school teacher complied. The deceased and his party joined by the school teacher and the children then proceeded on their way home in the village of Ha Leaoa,
P.W.4, 'Makhethang Tlolotlo, testified on oath and confirmed that she was a school teacher at Ha Leaoa Primary School. She lived in the same village as the accused and the deceased did end, therefore, knew them well. On the
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day in question, 6th June, 1989, she and four children were on their way from another school known as Khopung school. They were returning to their home at Ha Leaoa, As they passed next to his barley field, the deceased called, and asked, her to send children to get some fodder for her horse. According to her, P.W.4 waited on the foot path whilst the children went to get the fodder from the deceased, who was in his barley field. When they returned with the fodder, the children were in the company of the deceased, Taelo Moleleki and Phetho Leaoa. P.W.4 and the children then continued on their way home in the company of the deceased and his party until they came to a mashy place. Whilst she was assisting the children to cross the meshy place, the deceased and his party walked ahead.
After she had assisted the children across the mashy place, P.W.4 noticed a man in a dark overcoat coming down Makhati stream towards the foot path along which she, the children, the deceased and his party were walking. That man joined the foot path ahead of her and the children but behind the deceased and his party. He was, therefore, walking behind the deceased and hie party whilst P.W.4 and the children were following him on the same foot path.
When he came to a mountain neck, from where the village of Ha Leaoa was within view, the man in the dark overcoat stopped and waited until P.W.4 and the children
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came Co him. As she passed next to him, the man in the overcoat said to P.M.4: "Hey you woman, wait here! Where is the owner of this place?" As he uttered those words, the man in the dark overcoat was pointed in the direction of a certain flat roofed house in the village. Thinking that he was referring to the owner of that house P.W.4 replied that he was in the mines of the Republic of South Africa. The man in the dark overcoat then said : "I don't want the people you are talking about. I want the chief of this place." Because he spoke to her in a rude manner, P.W.4 said to the man in the dark overcoat: "Why don't you inquire from the men ahead of you instead of me? Who are you for I see you for the first time in this area?" He then left saying: "You are wasting my time woman!"
As he left her, the man in the dark overcoat followed the direction taken by the deceased, his party and the children. P.W.4 then noticed that a bundle of barley, carried by one of the children who were by that time, walking ahead with the deceased and his party, was getting loose. She called at the deceased and his party to wait for her so that she could re-adjust the bundle of barley carried by the child. They complied. The man in the dark overcoat was still walking towards the deceased and his party.
When she eventually came to where the deceased and his
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party were waiting P.W.4 re-adjusted the bundle of barley carried by the child. She noticed that the man in the dark overcoat wag speaking to the deceased. They were, however, speaking in low voices and she could not follow what they were talking about.
After she had re-adjusted the child's bundle of barley, P.W.4 continued on her way home. She had walked only a few paces when she heard a gun report behind her. She looked back and noticed the deceased dropping to the ground. She then saw the man in the dark overcoat approaching the deceased and firing a gun at him. The children ran away and scuttered in the fields. She heard one of the men who had been walking in the company of the deceased raising an alarm: "Hey! Here is a person killing Motsamai." or words to that effect.
Having shot at the deceased, the man in the dark overcoat returned, following the same foot path that she (P.W.4), the children, the deceased and his party had been walking on. As the man in the dark overcoat returned, P.W.4 noticed another man walking higher up the hill and waiving his hand at him. She could not recognise who the man walking on the hill was. However, the two men walked parallel each other in the same direction.
According to her, P.W.4 was frightened by the sight of
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the deceased being shot with a gun. She did not know what then happened to her for the next thing she found herself already in her house at the village of Ha Leaoa.
The evidence of P.W. 4 was, in all material respects, corroborated by Taelo Moleleki and Phetho Leaoa who testified as P.W.2 and P.W.3, respectively, in this trial. According to P.W.2, he positively identified the accused as the man who emerged higher up the hill, some 80 paces (ind) from the spot where the deceased was shot dead, at the time the man in the dark overcoat was returning. He confirmed that the accused and the man in the dark overcoat walked, parallel to each other, in the same direction. He raised an alarm so that villagers could chase after, and arrest, the accused and the man in the dark overcoat who were clearly running away together. In response to the alarm, many villagers chased after the accused and the man in the dark overcoat. P.W.2 himself remained with the dead body of the deceased and did not join in the chase after the accused and the man in the dark overcoat. When he was later joined by many villagers P.W.2 went home to get a hide (mokhahla) with which to carry the dead body of the deceased. After he had returned with the hide, there was a time when he went into a nearby valley. When he returned from the valley, P.W.2 found the accused and the man in the dark overcoat already under arrest at the place where the deceased was lying dead. The man in the dark
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overcoat had sustained two injuries, one on the forehead and another on the chin. When he was questioned by P,W.3 as to why they had killed the deceased, the accused, who had no apparent injuries, replied that he and the man in the dark overcoat had been sent by one Lebohang, his elder brother, to come and kill the deceased. He (accused) was to point out the deceased to the man in the dark overcoat who would then execute him.
It is, perhaps, convenient to mention, at this juncture, that in the course of his evidence, P.W.2 told the court that he was hard of bearing. Although, in his evidence in chief, he was positive that P.W.3 was the person who was questioning the accused, when the latter replied that he and the man in the dark overcoat had been sent by Lebohang to kill the deceased, it became clear under cross-examination that P.W.2 had no personal knowledge of that fact. He had only learnt it from other people. Indeed, as it will be seen in a moment, P.W.3 himself denies ever asking the accused any questions.
In my view, the evidence of P.W.2 must be approached with caution. It will be unsafe to rely on it unless it has been corroborated by the evidence of a more reliable
witness.
In his evidence, P.W.3 confirmed that as the man in
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the dark overcoat was returning after he had shot the deceased, another man emerged up the hill. Re (P.W.3) recognised that man as the accused. Both the accused and the man in the dark overcoat walked parallel to each other, at a distance of about 80 paces (ind.), until they disappeared over a mountain nek.
Later on, at about dusk the accused and the man in the dark overcoat were escorted back to where the deceased was lying dead. They both had their hands fastened with ropes. The man in the dark overcoat died shortly thereafter. P.W.3 assured the court that he himself never asked the accused and the man in the dark overcoat any questions.
In his testimony, P.W.5, Nkere Nkere, told the court that on the day in question, 6th June, 1989, he was the acting headman of the village of He Leaoa, On the afternoon of that day he was standing at the kraal outside his house when he heard two gun reports from across a steam on the outskirts of the village. He then heard P.W.2 raising an alarm: "All men in the village come quickly! Here is a person shooting Motsamai" or words to that effect. When he looked where P.W.2 was raising the alarm across the stream, P.W.5 noticed a man in a dark overcoat going away from another person who was lying on the ground. He also saw another man higher on the hill walking in the same direction as the man in the dark overcoat. P.W.5
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likened Che man walking higher up the hill as the accused.
In response to the alarm raised by P.W.2, P.W.5 rode on his horse which had been fastened outside the house and chased after the man in the dark overcoat and his companion, who were both clearly running away in the direction towards a mountain nek. P.W.5 was joined by many other villagers. On the way he passed next to the person he had seen laying on the ground across the stream and identified him as the deceased who was already dead. He noticed P.W.4 also lying on the ground some distance away from the spot where the deceased was lying dead.
As they were being chased by P.W.5 and the other villagers, the man in the dark overcoat and his companion disappeared over the mountain nek. When they came over the mountain nek still in pursuit of the two man, P.W.5 and his party saw the man in the dark overcoat and his companion still running together in the direction towards the villages of Ha Sekereu and Ha Seloloana. P.W.5 and his party raised the alarm for the villagers of Ha Sekereu and Ha Seloloana to stop the two men. In response to the alarm, the men of Ha Sekereu and Ha Seloloana joined in the chase after the man in the dark overcoat and his companion. The man in the dark overcoat then fired two shots. The men from Ha Sekereu and Ha Seloloana who were close to him picked up stones which they threw at him. At that time his
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companion separated and ran down towards the river. The man in the dark overcoat ran in a different direction towards the cliffs over which he fell.
According to P.W.5 when the two men parted and ran in different directions some people chased after the man in the dark overcoat whilst he and other people chased after his companion who was running down towards the river. That man threw himself into the river which was in flood. He nearly drowned. He submerge into the water and when he emerged he raised his hands and said: "I am surrendering myself." P.W.5 then positively identified that man as the accused. When he asked him: "Why are you killing Motsamai?", the accused walked out of the water and replied that he and the man in the dark overcoat had been sent by Lebohang, his (accused's) elder bother, to kill Motsamai for having deprived him (Lebohang) of his cattle and chieftainship. P.W.5 and his party then escorted the accused to confront him with the man in the dark overcoat. They found the man in the dark overcoat already apprehended at the cliffs over which he had fallen, a distance of about 80 paces (ind.) away. On arrival a small firearm allegedly taken from the man in the dark overcoat was handed to P.W.5 by a man called Maphale, from the village of Ha Seloloane. Maphale was, however, not called as a witness in this trial. P.W.5 noticed that the man in the dark overcoat had sustained two injuries,
one on the forehead and another on
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the chin. He had apparently sustained the injuries when he fell over the cliffs.
As he was a complete stranger to him, P.W.5 asked the man in the dark overcoat who he was. He replied that he was Malefetsane Makhamisa from Ha Selomo in the district of Butha-Buthe. When P.W.5 asked him why he had killed the deceased, Malefetsane Makhamisa replied that he and the accused had been sent by Lebohang to kill the deceased. He said as he himself did not know the deceased, the accused was to point out the deceased to him.
It is important to bear in mind that, in his own evidence, P.W.5 was, at the time, the acting headman and as such a peace officer. The replies given by the accused and Malefetsane Makhamisa to his questions amounted, in my view, to confessions which were, however, never repeated before a magistrate. They remained, therefore, inadmissible evidence.
Be that as it may, P.W,5 went on to testify that he and the men from Ha Leaoa then fastened the accused and Malefetsane Makhamisa before escorting them back to the place where the deceased had been shot dead. They arrived there at dusk. Shortly, thereafter, Malefetsane Makhamisa, who could no longer speak passed away. The dead bodies of both the deceased and Malefetsane Makhamisa were conveyed
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to the chief's place in the village of Ha Leaoa.
P.W.5 then sent for the police who, however, came on the following day, 7th June, 1989. He denied, therefore, the evidence of D/Tper. Matete that the police went to the village of Ha Leaoa on 6th June, 1989.
Regard being had to the fact that it was already after dusk when a report was sent to the police at Thaba-Tseka, I am inclined to accept as the truth the evidence of P.W.5 that the police came to the village of Ha Leaoa only on 7th June, 1989 and reject as false the evidence of D/Tper Matete that he proceeded to Ha Leaoa on 6th June, 1989.
According to P.W.5, after the police had examined the two dead bodies for injuries, he took them (police) to the spot where the deceased had been shot dead and the cliffs over which Malefetsane Makhamisa had fallen. The dead bodies, together with the accused person, were then taken away by the police. He, himself, however, remained at home and did not accompany the dead bodies to Thaba-Tseka.
The evidence of P.W.5 was corroborated by P.W.6 who also told the court that the deceased was his own brother. When he, P.W.5 and some villagers chased after the accused and Malefetsane Makhamisa, other villagers carried home
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P.W. 4 who had apparently lost consciousness next to the apot where the deceased was lying dead across the stream on the outskirts of the village of Ha Leaoa.
It is worth mentioning that it is common cause that with the exception of P.W.4, all the witnesses who testified before this court were relatives of both the accused and the deceased. They all lived peacefully in the village of Ha Leaoa.
In his defence the accused denied the evidence that at the time the deceased was brutally killed on the outskirts of the village of Ha Leaoa, he was anywhere near that place. According to him, the accused was on the day in question, 6th June, 1989, returning home from Mphosong where he had taken a horse to his elder brother, Lebohang. When he passed next to the village of Ha Seloloane and Ha Sekereu, he noticed many people chasing down a mountain slope a person in a dark overcoat, They were at the same time raising an alarm for people to stop that person.
As he was walking innocently on his way home, boys from the villages of Ha Seloloana and He Sekereu came to him and said: "Here is one of them!" They suddenly started beating him up with sticks. As he had no stick with which to defend himself, the accused ran away in the direction towards the river. He was, however, stopped by the river
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which was in flood. The boys then caught up with him and continued assaulting him. Eventually P.W.5 came to the scene. Instead of intervening on hie behalf P.W.5 joined in the assault on him. After he had been severely assaulted at the river, the accused was escorted to where the man in the dark overcoat had been captured and beaten up. He was seeing that man for the first time. When P.W.5 asked him whether he knew the man in the dark overcoat, the accused replied in the negative. P.W.5 then told him that he was yet to speak the truth, He (accused) and the man in the dark overcoat were fastened with ropes and escorted to Ha Leaoa. On the way he and the man in the dark overcoat were, however, parted. He alone was escorted to a place where he found the deceased lying dead outside the village of Ha Leaoa. He never again saw the man in the dark overcoat and did not know what eventually became of him. He spent the night at the chief's place together with the dead body of the deceased. On the following day, the police arrived in the village. He and the dead body of the deceased were taken by the police to Thaba-Tseka where he was charged with the murder of the deceased.
It is significant that although he denies to have been anywhere near the place where the deceased was lying dead at the time the latter was shot by the man in the dark overcoat, the accused was identified by P.W.2 as the person who, emerged on the hill a distance of only about 80 paces
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away. True enough I have earlier said it would be unwise Co rely on the evidence of P.W.2 save where it had been corroborated. In this regard the evidence of P.W.2 is, however, corroborated by that of P.W.3. The evidence of P.W.2 and P.W.3 is in a way corroborated by P.W.5 one of the people who chased after and arrested accused and the man in the dark overcoat. It is true that there was a time when the accused and the man in the dark overcoat disappeared over the mountain nek and were, therefore, out of the view of P.W.5 and other villagers who were chasing after them. The accused and the man in the dark overcoat could not, in my view, have been out of view for a long time because when P.W.5 and his party came to the mountain nek they were able to see the accused and his companion still running together in the direction towards the villages of Ha Sekereu and Ha Seloloana. From that time the accused and the man in the dark overcoat never went out of view of P.W.5 until they were both captured, the accused at the river and the man in the dark overcoat at the cliffs over which he had allegedly fallen. The evidence of P.W.5 is in this regard, corroborated by P.W.6, one of the people who had joined him in the chase after the accused and the man in the dark overcoat.
It is worth noting that after he had allegedly been severely assaulted by P.W.5 and certain boys from the villages of Ha Sekereu and Ha Seloloana, the accused was
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admittedly taken to Thaba-Tseka police station. There is, however, no suggestion that the police referred him to a medical Doctor for treatment, as they usually do with injured people who come to the police stations. If it were true that he had been severely assaulted, the accused would naturally have sustained injuries. That being so, there is no reason why, contrary to their normal practice, the police would have treated the accused differently by not referring him to a medical doctor for treatment.
Although the accused told the court that he parted with the man in the dark overcoat whilst they were being escorted back to Ha Leaoa and he did not know what eventually became of that man, the evidence is, in my opinion, simply overwhelming that the accused was with him until that man died at the spot where the deceased had been shot dead. Indeed, the accused remained with the dead bodies of the man in the dark overcoat and the deceased until they were taken to Thaba-Tseka by the police.
The accused's evidence that he was innocently walking on the way to his home at Ha Leaoa when he was attacked by boys from the villages of Ha Seloloana and Ha Sekereu was subjected to criticism by the Crown counsel on the ground that such evidence was not disclosed during the cross-examination of the crown witnesses. I was told in argument to reject the accused's evidence as sheer
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fabrications because the defence had failed to disclose its defence under cross-examination of the crown witnesses. In this regard I was referred to the decision in Rex v. 'Mota Phaloane 1980(2) LLR 260 where the head note reads:
"It is important for the defence to put its case to the prosecution witnesses as the trial court is entitled to see and hear
the reaction of witnesses to every important allegation. But failure to put his case does not always imply an acceptance of the evidence of the crown witnesses although it may weaken criticism of those witnesses. The evidence for the defence is entitled to the same careful consideration as if the elements of the defence case had been put to the witnesses for crown". (My underlining)
I have underscored, in the above cited passage, the words "The evidence for the defence is entitled to the same careful consideration as if the elements of the defence case had been put to the witnesses for crown," to indicate my view that the decision in Rex v. 'Mota Phaloane, supra, is no authority that the accused's evidence should be rejected merely because the defence failed to disclose its case, under cross-examination of the crown witnesses.
I have given due consideration to the accused's evidence and am convinced that he has told this court a pack of lies which I have no hesitation to reject as false evidence. The important question is, however, whether the crown has succeeded to establish, beyond a reasonable doubt, that the accused has committed the offence against
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which he stands charged.
In my finding, there is ample evidence which is not really disputed that Malefetsane Makhamisa and not the accused was the person who actually shot, and inflicted upon the deceased the injuries that resulted in his death. The question that now arises for the determination of the court is whether or not the accused can be held responsible for the death of the deceased under the doctrine of common purpose. There is, in my finding, no admissible evidence that, prior to the killing of the deceased, the accused and Malefetsane Makhamisa, the actual perpetrator of the killing, planned his death. The accused himself was not present when the deceased was shot dead. He was only seen emerging on the hill at the time Malefetsane Makhamisa was returning after the deceased had already been shot dead. In my view, there is no convincing evidence to indicate that the accused can be regarded as a socius criminis in this case and, therefore, held responsible for the death of the deceased under the doctrine of common purpose.
There was, however, the evidence of P.W.4 that when he was seen emerging on the hill, the accused waived hie hand at Malefetsane Makhamisa with whom he ran away. It is significant that of all the witnesses who claimed to have seen the accused emerging on Che hill, P.W.4 was the only one who testified that the accused had waived his hand at
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Malefetsane Makhamisa before running away with him. However, she, herself told the court that she was, at the time frightened. That being so, the possibility that P.W.4 could have been mistaken in her evidence that the accused waived his hand at Malefetsane Makhamisa cannot, in my opinion, be totally ruled out.
There is ample evidence, which I am prepared to accept that after the deceased had been shot dead, the accused was seen running away with Malefetsene Makhamisa. The salient question is whether or not on this evidence alone, the accused can be regarded as an accessory after the fact. To be regarded as accessory after the fact, the accused must, at the time he ran away with Malefetsane Makhamisa, have been aware that the latter had committed the crime and attempted to cover the fact.
I, however, find the evidence that the accused was seen emerging on the hill rather ambiguous. On one hand, it may imply that the accused had been sitting on the hill and watching the crime being committed by Malefetsane Makhamisa. He was, therefore, aware of the commission of that offence. On the other hand, it may imply that the accused was coming from behind the hill where he could not have been aware of the deceased being actually shot dead by Malefetsane Makhamisa. If when he emerged on the hill and ran away with Malefetsane Makhamisa the accused came from
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behind the hill and was not aware that the latter had actually shot dead the deceased, it seems to me, the accused cannot properly be regarded as accessory after the fact.
In the circumstances, the view that I take is that this is a fit case in which the court must have a doubt, the benefit of which is, in our law, always given to the accused person. I do have a doubt as to whether or not the accused can properly be regarded as accessory after the fact in this case.
The accused is given the benefit of the doubt, found not guilty and discharged.
Both my assessors agree with the finding.
B.K. MOLAI
JUDGE
23rd March, 1993.
For Crown: Mr. Qhomane,
For Defence: Mr. Hlaoli.
