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C of A
(CRI) No.4/90

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal between

MASUPHA
MOSHOESHOE 1ST APPELLANT

SEEMA
MAFA 2ND APPELLANT

MOHLOMI
MPHATSOANE 3RD APPELLANT

MAKESANA
LETSOKO 4TH APPELLANT

and

REX

Coram:
Mahomed J.P

Kotze'
J.A.

Leon J.A.

JUDGMENT

LEON,
J.A.

Six
accused appeared before the High Court charged with the murder of the
deceased on 13 February 1987. Each pleaded not guilty
but all the
accused were found guilty of murder with extenuating circumstances.
Accused numbers 1, 2, 3 and 4 were each sentenced
to 8 years'
imprisonment while accused numbers 5 and 6 were each sentenced to 8
cuts with a light cane.

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Accused
numbers 1, 2, 3 and 4 have appealed against their conviction as well
as their sentences while accused numbers 5 and 6 have
not appealed.

The
doctor who performed the post mortem was not called as a witness but
his report was handed in by consent. According to that
report the
deceased had multiple stab wounds all over his face and scalp. The
cause of death"was scalp laceration with skull
and brain damage.
Trooper' Quobete who examined the body of the deceased shortly after
he had been killed described the injuries
in greater detail than the
doctor. He found open wounds on the right cheek, one on the right
ear, and four on the head. He thought
that most of them had been
inflicted with a blunt instrument.

Save in
one respect, to which I shall refer later, the medical evidence and
that of Trooper Quobete are quite consisted with he
Crown case and
quite inconsistent with that of accused no.1.

Four eye
witnesses, three women and a man, directly

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implicated
the appellants and the other accused in the commission of the
offence. The defence of accused no.1 was self-defence while
that of
the other accused was a denial that they had participated in any was
in the killing of the deceased as they were not present
at the time.

The
deceased was an old man. According to the post mortem report he was
70 years of age while there was other evidence that he was
73. On the
Crown case at the time of the assault upon him he was wearing a
helmet and carrying a walking stick and an umbrella.
That was
confirmed by the police evidence that a damaged yellow helmet and an
umbrella were found at the scene. When the first
appellant (accused
no.1) gave evidence he denied that the deceased was carrying an
umbrella or that he wore a helmet.

Before 1
refer to the evidence of the eye witnesses I should mention that the
police evidence was that a sword or battle axe which
had been put in
the soil was pointed out by accused no. 5 and that various sticks
were handed to Trooper Quobete by the other accused.
These were
handed in at the preparatory examination but lost by the time the

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matter
came to trial.

The Crown
witnesses who directly implicated the appellants were MATSELI

MASELI
(PW 3), MATEBOHO KHOALI (PW 5) , MAMAFOHLA KHOALI (PW 6) and JONE or
JONNY MASELI (PW 7). It will be convenient to refer
briefly to their
evidence in the order in which they gave it.

Matseli
Maseli lived in the same village as all the accused and the deceased.
At about 8 am on the day in question while at home
she heard a noise.
He observed that Jonny, who is her brother-in-law, was being chased
by all the accused. During the chase they
came across the deceased
who asked them what they were doing whereupon the third accused hit
the deceased on the head with an iron
bar causing him to fall to the
ground. The first accused then hit him on the head with a sword, the
others joined in assaulting
the deceased with various weapons.
Accused no.2 had a sword and a stick, accused no.4 an axe, accused
no.5 a sword and accused
no.6 a stick. She claimed that accused no. 4
hit the deceased on his legs with an axe which is inconsistent with
the police and
medical evidence. When

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that
evidence was put to her she endeavoured to defend her position by
saying that the deceased wore gumboots but the police evidence
was
that he wore ordinary boots.

Her
evidence suffers from the defects referred to above as does that of
MATEBOHO KHOALI (PW 5) and much was made of this by counsel
for the
appellant. Where a witness is called upon to recall a fastmoving
scene it is not uncommon and not surprising that the recall
of events
is less than perfect on matters of detail, and the trial judge was
aware of the criticism. My overall impression on a
reading of the
record is that these were not dishonest witnesses,

MATEBOHO
KHOALI'S evidence was much to the same effect as that of the previous
witness except for the additional information that
when accused no.3
struck the deceased he said that he was an old man who was not afraid
of people and that he had warned him a
long time ago that he would
kill him. She confirmed the other evidence that the deceased wore a
helmet, and carried an umbrella
and a reed stick. He died immediately
after the attack.

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MAMAFOHLA
KHOALI (PW 6) also heard the noise, saw the chase and witnessed the
attack upon the deceased by the six accused. She agreed
that it was
accused no.3 who had assaulted the deceased with a knobkierie the
others then joining in. She also heard accused no.3
say to the
deceased that he would catch him and kill him. She was on good terms
with all those against whom she had testified and
had no reason to
give false evidence against them.

Jonny
Maseli (PW 7) knew all the accused regarding accused no.1 as his
chief. (There was other evidence that he was a headman.)
On the day
in question he was herding three of his family's cattle on a common
pasture. The accused arrived accused no.1 informing
him that they
were driving the cattle. Jonny asked why, accused no.3 said that they
were taking them to the chief's place but accused
no.1 intervened
instructing them not to talk to him but to kill him. They were all
armed and in a fighting mood. They chased Jonny
and he ran. While he
was running he heard the deceased calling accused no.1's name asking
him why they were chasing a boy, carrying
such dangerous weapons.
Accused no.3 then struck the deceased with his

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iron
knobkirie causing the deceased to fall down. The other accused then
joined in the assault on the deceased. He saw wounds all
over the
face and cheeks of the deceased. He denied that he had even attacked
the deceased or that the deceased had made as if
to do so.

Counsel
for the appellant referred to certain differences on matters of
detail between the Crown witnesses. These are to be expected
in a
case of this kind with honest witnesses. Indeed if they told exactly
the same story in all respects one would suspect a conspiracy.
Then
it was pointed out that the evidence at the trial had been given in
greater detail then it was at the preparatory examination.
As the
learned Judge a quo pointed out evidence at a preparatory examination
is usually led in a more perfunctory matter than at
a trial. These
criticisms are not of substance.

In the
coure of his evidence accused no.1 said that he was a headman. He
knew all the Crown witnesses. In the area there was a chieftainship

dispute and also a reserved pasture for the cattle in the village.

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On the
morning when the deceased was killed he saw cattle grazing in the
reserved pastures. He instructed the other accused to impound
them
but they declined saying "they are in your field chief." He
went there himself armed with an iron rod and carrying
some wires. He
found Jonny and his younger brother herding cattle and informed them
that he was taking the cattle. An argument
ensued. Jonny struck at
him with a sword. In warding off the blow his hand was cut and a
medical certificate was handed in confirming
the cut which was a
slight cut. Much was made of this by Counsel for the appellants but
his hand could have been cut during the
attack upon the deceased and
in my view evidence of the cut is not inconsistent with the Crown
case.

According
to the evidence of accused no.1 the deceased, who had earlier asked
him where he was taking the cattle, put his hand in
his pocket. In
order to prevent him taking his hand out of his pocket accused no.1
hit him with his stick claiming that he was
defending himself. None
of the other accused was present. The female Crown witnesses also
threw stones at him.

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There are
a number of unsatisfactory features about the evidence of accused
no.1. They include:

1. His
   evidence does not account at all for the stab wounds found by the
   doctor.

   
   

2. His
   evidence regarding the number of blows which he struck (one or two)
   does not tally with the deceased's injuries.

   
   

3. He
   denied that the deceased was carrying an umbrella or wore a helmet
   yet a broken helmet (which fitted in with the Crown case)
   and an
   umbrella were found at the scene.

   
   

4. He
   said that the deceased fell because he put his hand in his pocket
   which is nonsense.

   
   

5. His
   evidence reads badly.

   
   

The
second accused testified that on the day when the deceased died he
was at home repairing his sewing machine.

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He
alleged that the Crown witnesses were all liars and he also denied
Trooper Quobete's evidence relating to his arrest. There are

unsatisfactory features and improbabilities in his evidence. He knew
all the Crown witness well, was on good terms with them and
could
advance no reason why they should falsely incriminate them. He
alleged that he was assaulted by Trooper Quobete but that
was not put
in cross-examination. He was evasive and contradictory as to why he
had introduced new matter into his story at a late
stage of the
cross-examination when he stated that there had been threats to kill
him. Although there was evidence of exhibits
being handed in at the
preparatory examination he alleged that he did not see this.

The
defence of the third and fourth accused was that on the morning of
the deceased's death they were looking after the father of
accused
no.3 and took no part in the assault of the deceased. The evidence of
both of these accused is inherently improbable as
they were quite
unable to account for the evidence of the Crown witnesses with whom
they were on good terms.

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There are
further points of criticism of these witnesses. The evidence of
accused no. 3 does not read well, At times he gave answers
which were
not relevant to the questions. At other times I thought that he was
rather evasive. His evidence conflicted with that
of accused no.1 who
said that they had seen him running away from where the deceased had
fallen whereas accused no.3 said that
he had seen accused no.1
driving cattle. When he was pressed on the point he said that he did
no understand the question.

The
evidence of accused no.4 contains a further improbability. Having
heard of the killing of the deceased in his own village he
did not
bother to enquire from anyone in the village as to how that had
happened. He claimed to be innocent: if he were he would
have made
enquiries. It is far more likely that his failure to make such
enquiries was because he knew all about the killing having
taken part
in it.

On a
consideration of all the evidence and the probabilities I am
satisfied that the lower Court was correct in accepting the evidence

of the Crown witnesses

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and
rejecting that of the accused. It was correctly conceded by Counsel
for the appellant that in those circumstances there was
common
purpose and that murder was the correct verdict on the basis of dolus
eventualis.

Finally
it was argued that the sentence was "a bit high". Even if
it were that would not be a sufficient basis on which
to interfere.
In any event I regard the sentence of 8 years as a proper sentence in
all the circumstances. This was a merciless
attack on a defenceless
old man who had merely asked them what they were doing. A number of
injuries were inflicted causing scalp
laceration and brain damage.
Having due regard to all those matters which may properly be taken
into account in favour of all those
convicted I am unpersuaded that
there is any basis upon which this Court can interfere.

In my
judgement the appeal must be dismissed and the convictions and
sentences confirmed.

Delivered
in Maseru on this day of July, 1993.

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R.N. LEON

JUDGE OF
APPEAL

I agree

I.
Mahomed

PRESIDENT
OF THE COURT OF APPEAL

I agree

G. P.
KOTZE