CRI\T\83\91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

SEPINARE
MOTSU 1st Accused

MOTSU
MOTSU 2nd Accused

MPITI
MOTSU 3rd Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 26th day of
February. 1993.

The
accused are charged with murder it being alleged that upon or about
the 22nd day of November, 1989 and at or near Ha Motsu in
the
district of Maseru the said accused, one or the other or all of them
did unlawfully and intentionally kill Jobere Lenono. The
accused
pleaded not guilty to the charge.

The post
mortem examination report (Exhibit "B") was handed in by
the Prosecution in terms of section 223 (7) of the Criminal
Procedure
and Evidence Act 1981 because the doctor who carried out the autopsy
is no long in this country. According to the report
the cause of
death of the deceased (Jobere Lenono) was: Head injury with brain
contusion. External appearance - (1) a deep cut
wound through the
skull left temporal frontal region 6cm

2

with
brain exposed. (2) 3cm wound extending down to the maxilla over nasal
(labial) fold left side.

The first
witness called by the Crown is Tseliso Sesing. He testified that he
resides at Ha Lenono and his chief is Chief Lenono
Lenono (P.W.6).
The accused are brothers, A1 is the youngest while A2 is the eldest.
On. the day in question he received instructions
from his chief that
he and others must go to the reserved pasture area and impound the
cattle of one Pabala who is the father of
the accused. The cattle
were unlawfully grazing there because they came from the village of
Ha Motsu which is not under Chief Lenono
Lenono.

The
village of Ha Lenono is situated on a plateau. On the eastern side of
the plateau is a donga which runs from south in a northerly

direction. The people of Ha Lenono and their chief regard that donga
as the boundary between the two villages because the village
of Ha
Motsu lies on the eastern side of the donga. However, the people of
Ha Motsu say that the boundary is at the foot of the
plateau and that
the reserved pasture area in question is on the Ha Motsu side of the
boundary. There is a judgment of this Court
in CIV\A\11\1953 between
Moeketsi Lenono and Fako Motsu who are the predecessors of the
present chiefs of both villages respectively.
The judgment did not
determine the question of the boundary between the two villages but
awarded

3

rights Co
trees and thatching grass at that area to Moeketsi Lenono.

P.W.1testified
that as he approached the area where the cattle were to be seized he
noticed that "Mualle, Palamang, the deceased
(Jobere) and
Mosiuoa were already driving the said cattle towards Lenono's
village. A1 and A2 were coming from Lenono's village
and came infront
of the cattle and blocked their way. As he was far from them he did
not hear whether there was any altercation
between the two accused
and the men who were driving the cattle. At that time A3 was not
there. Immediately after that he saw that
the two groups were
throwing atones at each other and the two accused had started the
stone throwing.

P.W.1says
that he came to the cattle at the same time with A3 who was coming
from Ha Motsu. They both joined their respective groups
and
participated in the stone throwing fight. They were eventually
overpowered by the accused and took to their heels. The deceased
and
Mosiuoa ran in an easterly direction towards the village of Ha Motsu.
He (P.W.1) and the other members of his group ran in
a northerly
direction towards the river. The deceased and Mosiuoa ran until they
crossed the donga and were cornered between the
donga and a fence of
a yard belonging to one of the subjects of Chief Motsu. As the
accused were close behind them the stone throwing
fight resumed again

4

because
the deceased and Mosiuoa could go no further. Seeing that their
colleagues were in serious danger of being killed, those
who had run
away towards the river came back and made a desperate attempt to
rescue their colleagues.

They
threw stones at the accused until A2 ran away and got into the
village. P.W.1says that they advanced to where the deceased
and
Mosiuoa had been cornered. When they approached he saw the deceased
rising from the ground. His face was covered . with blood.
A3 threw a
stone at him and it hit him on the head. The deceased fell down
again. At this stage A1 and Mosioua were still throwing
stones at
each other and finally they fought with their sticks. At last Mosioua
escaped and crossed the donga to Lenono's side.

After the
deceased had fallen down as a result of being struck on the head with
a stone, A3 went to him while he was still lying
on the ground and
struck him on the head with a battle-axe similar to Exhibit "1".
It got struck into the skull. He left
it there and went to assist A1
but Mosioua escaped. P.W.1's group ran away and crossed the donga to
Lenono's side. A1 and A3 returned
to the deceased and A3 pulled the
battle-axe from the head of the deceased. A2 was about 40 paces from
them and asked them why
they did not finish him off. After that all
the accused went into the village.

5

P.W.1testified
that he was armed with a stick which he broke from a poplar tree on
his way to where the cattle were unlawfully grazing.
His colleagues
and the accused were armed with sticks. He saw Exhibit "1"
for the first time when A3 hit the deceased
with it. On the previous
day Pabala's cattle had been impounded for grazing at the same area
and he paid for them without any complaint.

Under
cross-examination P.W.1denied that there was an inter-grazing between
the villages of Ha Lenono and Ha Motsu. However, he
admitted that
there was inter-ploughing. He said he did not see where Exhibit "1"
came from but he denies that A3 picked
it up from the ground when the
deceased fell down. A3 never bent down to pick it up. He just raised
it up and struck the deceased
as soon as he fell down.

P.W.2
Palamang Lenono testified that on the 22nd November, 1989 he was
instructed by Chief Lenono Lenono to go below the village
and impound
some cattle which were grazing at the reserved pasture area. He was
detailed with the deceased, Mosioua and P.W.1 who
remained behind
because he was milking his cows and joined them while they were
already driving the cattle in the direction of
their village. While
they were driving the cattle A1 and A2 suddenly appeared from the
trees where they were apparently hiding
themselves and waiting for
the people of Ha

6

Lenono to
come. P.W.2 was in the company of the deceased and Mosioua. The
accused first stopped infront of the cattle and then started
throwing
stones at P.W.2 and his colleagues. A1 was the first to started
throwing stones. P.W.2 and his colleagues reacted by throwing
stones
at the accused. A3 and P.W.1 joined the fight after it had already
started. A3 had appeared from the donga.

P.W.2
says that not long after the start of the stone throwing the accused
overpowered them forcing them to scatter in different
directions. The
deceased and Mosiuoa were forced to run away in the direction of the
village of Ha Motsu. When they came to the
eastern side of the donga
the accused cornered them between a fence and a donga. The stone
throwing continued until P.W.1and P.W.2
returned from their flight
when they noticed that their colleagues were cornered by the accused
and were about to be seriously
injured. They crossed the donga and
intervened by throwing stones at the accused. At that stage A3 threw
a stone at the deceased
and struck him on the head causing him to
fall to the ground. . He (A3) then struck the deceased on the head
with a battle-axe
and it got struck into the skull. It was only after
chasing away P.W.2 and his colleague that A3 went back and pulled the
battle-axe
from the skull of the deceased.

After the
accused had left and entered into the village

7

P.W.2 and
his colleagues went to where the deceased was lying and carried him
to the western side of the donga. He had injuries
on the head and
could neither walk nor speak. He was eventually carried to the
hospital in a vehicle but died on the way.

Under
cross-examination P.W.2 admitted that at the preparatory examination
he said A1 and A2 belaboured the deceased. He had not
said so at this
trial because he had not been asked such a question. He denied that
other villagers from Ha Lenono joined in the
fight. He says that they
came after the fight and after the deceased had already sustained the
injuries.

P.W.3
Mosiuoa Lenono confirms that when the accused overpowered them he and
the deceased crossed the donga to Motsu's side where
the accused
cornered them between a fence and the donga. During the fight he came
face to face with A1. They fought with their
sticks until A1 drew a
sword and tried to stab him on the belly with it. He blocked that
blow with his right forearm which sustained
a wound. P.W.1 and P.W.2
threw stones at A1 until he (P.W.3) got a chance to escape but he was
hit on the right ankle with stone
when he ran away. He passed the
deceased lying on the ground but he had not seen what had happened to
him. He was already on the
Lenono's side of the donga when he saw A3
go to the deceased and pull a battle-axe from his head.

8

The first
accused, Sepinare Motsu, gave a sworn statement in which he said that
on the 22nd November, 1989 he went to the fields
in the morning. When
he finished his work he drove his father's cattle to the western side
of the donga which divides the village
of Ha Lenono from that of Ha
Motsu. He remained with the cattle at the pastures until about
3.30p.m. when he drove them back to
his village on the eastern side
of the donga. He did not reach his destination because when he
crossed the donga the men from Ha
Lenono came to him. They were the
deceased, P.W.1, P.W.2, P.W.3 and one 'Mualle. The deceased said:
"Hey, you boy leave those
cattle because I am coming to impound
them." After insulting A1 the deceased and his colleagues passed
and went infront of
the cattle. They stopped them and attempted to
drive them back to where they came from. Each of them carried two
sticks and in
addition to that the deceased had a battle-axe. A1 says
that he had a stick and denies that he was holding a sword.

A1 says
that he was frightened and asked the deceased to drive the cattle
well and not to hit them. After he had uttered those words
the
deceased left the cattle and came to him. He raised up the battle-axe
and tried to hit him with it.He dived and avoided that
blow.
Deceased's colleagues then started throwing stones at him and
attacked him with sticks. He looked back and saw A3 inside
Maphoma's
yard. The deceased and his

9

colleagues
retreated when they saw A3 but they continued to throw stones. A1
last saw the deceased when he and A3 were throwing
stones at each
other. Deceased was hit with a stone and fell down. It is not true
that when he fell down A3 hacked him with Exhibit
"1". A1
says that eventually he and A3 managed to escape and went into the
village. It was only at that stage that they
met A2 who never took
part in the fight at all.

D.W.2
Mpiti Motsu is the third accused in this trial. His version is that
on the day in question he was returning home from his
place of work
at Likolobeng. The time was about 4.00pm. He saw a group of people
from Ha Lenono. At the same time he saw cattle
come out of the donga
on their way to Ha Motsu. That group of people went infront of the
cattle and stopped them. There was one
person who was driving the
cattle when they were stopped. After that he saw that the group from
Ha Lenono was throwing stones at
that one person who also reacted and
threw stones at them. A3 says that he ran to that place because he
wanted to see what was
happening. When he arrived there he saw that
the person who was being attacked by the group from Ha Lenono was his
brother A1.
The group consisted of P.W.1, P.W.2, P.W.3, the deceased
and one 'Mualle. He joined on the side of his brother and threw
stones
at the deceased's group. At first he was in Maphoma's yard but
later jumped over the fence, took a stone and threw it at the
deceased.
He hit him and he fell down.

10

A3 says
that when he hit the deceased he was chasing A1 and had a battle-axe
and a stick. The deceased dropped the battle-axe and
the stick when
he fell down. A3 says that he rushed to the deceased and when the
latter tried to take the battle-axe, he came and
took it before the
deceased did so. He struck him with it and he fell down again. He
(A3) pulled the battle-axe and walked away.
He denies that the
battle-axe got embedded into the skull of the deceased. He also
denies that he left it there for some time and
came later to pull it
out. The deceased's colleagues ran away when he struck him with the
battle-axe.

A3 says
that he struck the deceased with the battle-axe because he was trying
to rise and was trying to take the battle-axe. That
was a clear
indication that the deceased was still fighting. He did not aim at
any particular part of his body but hit him on the
head because at
that time the deceased turned his head towards him. At the time he
delivered the blow he was frightened because
the fight was going into
his own village. Furthermore the people of Ha Lenono were still
throwing stones. As the fight was already
in his own village he had
no where to run away to but had to defend himself and his younger
brother.

Under
cross-examination A3 says that the deceased fell down when he hit him
with a stone. He tried to stand up but fell again. He
finally stook
up on his feet while the stone throwing

11

was still
going on. He was wiping off blood from his face. He was busy wiping
his face when he (A3) struck him with Exhibit "1".
He says
that it is correct that the deceased was trying to pick up Exhibit
"1" when he struck him. He was still standing
but not
upright.

The
version of A2 is that he was not involved in the fight. He was in the
village when he heard noise from below the village. He
decided to go
there and find out what was happening. As he walked in that direction
he met A1 and A3. They explained to him that
the people of Ha Lenono
had invaded them. A3 was holding Exhibit "1". He explained
that he had struck a person with it.
He went to the small cliffs
overlooking the place where the fight had taken place. He saw a
person lying on the ground and the
people of Ha Lenono were going to
him.

It is
correct that at the preparatory examination P.W.2 and P.W.3 are
recorded as having said that when they arrived at the reserved

pasture area where the cattle were grazing the three accused were
present and attending to them. However at the trial in this Court

they tell an entirely different story. They say that when they came
to the cattle were unattended. They say that the accused were
hiding
in the trees and ambushed them as they drove the cattle to Ha Lenono.
This is a completely new story which was never raised
at the
preparatory examination. It is a

12

very
material issue on which the witnesses could not have made a mistake.
It seems to me that the Crown witnesses have embellished
their
evidence in this Court.

The Crown
witnesses again attempted to mislead the Court by saying that the
same cattle were impounded on the previous day. Chief
Lenono Lenono
brought his receipt book covering the same period. No receipt dated
the 21st November, 1989 issued in the name of
Pabala Motsu was found.
It seems to me that the Crown witnesses were simply not telling the
truth. The Crown Counsel exposed them
to be liars by asking Chief
Lenono to bring his receipt book so that it could be checked.

Mr.
Thetsane, Crown Counsel, showed his impartiality by producing the
receipt book despite the fact that he noticed that it did
not support
his case. He also submitted that the Court must approach the evidence
of the Crown witnesses with some caution because
all of them, except
P.W.1, are close relatives of the deceased.

It is
common cause that A1 and A3 took part in the fight and threw stones
at the Crown witnesses and that A3 hit the deceased with
a stone and
felled him. He finally struck him with a battle-axe. The deceased
died as a result of the injuries inflicted by A3.
The only dispute is
whether at the time he was

13

struck
with the battle-axe he was still lying on the ground or was already
on his feet and trying to pick up the battle-axe.

A3 tried
very hard to convince the Court that the deceased was already
standing when he struck him. His story is nothing but a pack
of lies.
It goes like this -

"Deceased was still trying to rise but falling again. He finally
rose or stood on his feet while the stone throwing was going
on.
While we were throwing stones they ran away and I took the battle-axe
and hit the deceased. He fell down. He was standing on
his feet and
was removing blood from his forehead. He was busy wiping blood from
his face when I struck him. It is correct that
he was trying to pick
up the battle-axe when I struck him. He was still standing but not
straight up. He bent to try to take it
but I took it before him. It
is true that at the time I hit him he was bending. Before I went for
the battle-axe he was still trying
to rise. He was still bending."

The story
is a complete nonsense which cannot be believed by this Court. Even
if the Court were to take A3's story as it stands
it is clear that
the deceased was totally incapacitated by the stone wound on the
face. He was busy wiping his face at

14

the time
he was struck with the lethal weapon. He posed no danger to the A3.
However the truth is that the deceased was lying on
the ground when
A3 struck him with Exhibit "1".

The next
question to be decided is the ownership of Exhibit "1".
This is very important because the Crown is relying on
common purpose
as far as A1 and A2 are concerned. The evidence of the Crown
witnesses is to the effect that the battle-axe did
not belong to the
deceased and he was not carrying it on that day. They saw it when A3
raised it and struck the deceased with it.

A1's
version is that the battle-axe belongs to the deceased. When the
fight started the deceased drew it from his waist and tried
to hit
him with it. A3 says that when he hit the deceased with a stone he
dropped the battle-axe he was holding.

A1 is not
a reliable witness because in his affidavit in the bail application
he deposed that A3 also threw a stone and hit the
deceased on the
forehead. Deceased fell on the ground and as he tried to rise A3
removed his axe and struck him therewith on the
head. In his evidence
before this Court he says that he never saw when A3 removed the
battle-axe and struck the deceased with it.
He saw the battle-axe
after the fight when A3 was carrying it.

15

It is
true chat A3 behaved in a manner which seems to suggest that the
battle-axe was his property. He took it to his home and kept
it in
the house until the police came. He did not hide it but merely gave
it to the police when they demanded it. One would have
expected him
to take it to the chief and present it to him at the same time the
report was made. But failure by the A3 to do all
these things is not
conclusive proof that the battle-axe belonged to him. In most cases
the people involved in murder cases usually
hide the murder weapons,
I find it rather strange that if the battle-axe belonged to him he
would have kept it in his house.

Mr.
Thetsane submitted that it is trite law that the accused person need
not convince the Court of the truth of his story. The test
being
whether his story is reasonably possibly true. If his story is
reasonably possibly true the accused person is entitled to
an
acquittal.

See: 1. R .v. Difford 1937 A.D. 370

2. S. v. Jaffer 1988 (2) S.A. 84 at pp.88-89.

"........ even if an accused's explanation be improbable the
Court is not entitled to convict unless it is satisfied not only
that
the explanation is improbable but beyond any reasonable doubt it is

16

false."

R.v.Difford (supra) at p. 373.

He
submitted that their story viewed in the light of the Prosecution's
evidence which was not shaken cannot be reasonably possibly
true. I
do not agree with this submission because I found it as a fact that
the Crown witnesses lied and embellished their evidence
as compared
to what they said at the preparatory examination. The story of A2 may
reasonably possibly be true that he was nowhere
near the scene of the
fight, at least during the fight. There is no doubt that after the
fight he did go there and found hie brothers.

The story
of A1 is also reasonably possibly true. I find it unbelievable that
two of the Crown witnesses ran towards the village
of the enemy when
the accused allegedly overpowered them. The story of A1 is more
probable than that of the Crown witnesses that
he had already driven
the cattle to the other side of the donga when the people of Ha
Lenono came to him.

I have
come to the conclusion that the Crown has failed to prove beyond a
reasonable doubt that Exhibit "1" is the property
of A3 and
that on the day in question he was carrying it and that the other
accused were aware that he was carrying such a weapon.
A1 and A2 must
be given the benefit of doubt and be acquitted.

17

Regarding
A3 I entirely agree with the submission that he appreciated that his
act might result in the death of the deceased but
acted recklessly as
to whether such would result or not. In other words he had the
requisite intention for murder in the legal
sense. (S. v. Mini 1963
(3} S.A. 188 at p. 192).

Judgment:-
A1 and A2 are found not guilty and are discharged. A3 is found guilty
of murder. My assessors agree.

J.L.
KHEOLA

JUDGE

26th
February, 1993.

For Crown
- Mr Thetsane

For
Accused - Mr. Ngakane.

Extenuating
Circumstances.

I found
it as a fact that A3 was returning from hie place of work when he
noticed that a group of people of Ha Lenono were attacking
his
younger brother, A1, He immediately to intervene and defend his
brother. During the fight he fatelly injured the deceased.
There was
no premedidation (R. v. Tailor, 1949 (4)

18

S.A. 702
(A.D.) at p. 705).

This is a
case of dolus eventualis and not of dolus directus (S.v. Siqwahla
1968 (4) S.A. 498 (A.D.) at p. 505 D - F).

The fact
that there has been a boundary dispute between the two villages over
a long period of time is a factor which should be
taken into
consideration when deciding the question of extenuating
circmustances.

I have
found that there are extenuating circumstances.

Sentence:
Twelve (12) years' imprisonment. Order: Exhibit "1" to be
destroyed by the police.

J.L.
KHEOLA

JUDGE

26th
February, 1993.

For Crown
- Mr. Thetsane

For
Accused - Mr. Ngakane.