CRI/T/33/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

MOHLOLO
MOSHOESHOE

MONYASE
RASELLO

QENEHELO
MOETI

THABO
MAITSI

TAMANE
RASELLO

KATA
NCHEE

MOTLATSI
RAMAOLO

JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 17th Day of
August, 1994.

All the
Accused got bail almost immediately after arrest. The events that are
the subject of this criminal prosecution occurred
on the 8th
February, 1988. The preparatory examination which normally follows
the cases of murder like this one began on the 14th
June, 1989. Even
so only 9 of the 17 people originally charged were in attendance.
Some of the accused were joined as the

2

Preparatory
Examination went on. Some of the Accused were committed for trial
before the High Court on the 18 th January, 1990.
Even when this
happened 5 of the Accused were not there. Interestingly on the 28th
March, 1991 one of the Accused was arrested
for failing to attend the
Preparatory Examination, he sat down for the Preparatory Examination
even at this stage.

Nine
Accused had been indicted of murder by the Director of Public
Prosecutions. On the ........ August, 1994 when the trial eventually

commenced one of the Accused had died, so had several witnesses and
potential witnesses. Before the Accused pleaded the Crown withdrew

the charge of murder against Chief Leboto Jonathan who had been the
First Accused at the Preparatory Examination. Seven Accused
of whom
Mohlolo Moshoeshoe was Accused Number One were called upon to plead
to the charge of murder and they all pleaded not guilty.

Three
Crown witnesses gave viva voce evidence. The Medical evidence was
admitted by consent. Consequently the doctor's deposition
together
with the medical report were read into the record. The medical report
handed in by consent and marked Exhibit "A",
The deposition
of the

3

late
Phakiso Peimane who was made PW.5 and that of the late Thabiso Mokeke
marked P.W 6 were also road into the record. The evidence
of Azael
Nthathane was admitted by consent and read into the record and it was
made P.W 7.

The
unfortunate deceased Mohato Moshoeshoe was suspected of stealing
Chief Leboto Jonathane's cattle. Deceased was a headman under
Chief
Leboto Jonathan, consequently when he was called before the chief in
connection with this allegation many people came out
of curiosity.
Consequently the chief's court was packed with people that day.

The chief
had lost two of his cattle and within a day or two they had been
found int he custody of the police. P.W 6 Thabiso Mokeke
now deceased
alleges that he was made to falsely accuse deceased of theft through
threats. The late Phakiso Peimane P.W 5 was also
accused of also
being a party to the Deceased's alleged theft. P.W 5 and the Deceased
had denied the theft. In the light of the
aforegoing it is clear that
the Crown was at pains to show Deceased was a victim of an error of
judgment or a malicious false accusation
of theft.

4

The
evidence of P.W 1 David Mokhutlulu (a man of 55 years of age) in a
nutshell is to the effect that he went to the chief's court
at
Mahlabatheng. It was on a Sunday. Many men had gathered and among
these were some of the accused. The Chief of the area Chief
Leboto
Jonathan was present. Deceased and the late Peimane P.W.5 were being
asked questions in connection with the theft of Chief
Lcboto
Jonathan's cattle. They denied the theft of those cattle. Malikela
(whom 1 understand is also deceased) was called and he
said Peimane
handed those cattle to some people in the presence of deceased. Chief
Leboto Jonathan left, leaving Mosiuoa Mapetla
in charge of the
proceedings in which deceased was asked questions.

Ramotebang
Mapetla now deceased produced handcuffs and handcuffed one hand of
Peimane saying those were his instructions. When he
tried to handcuff
the deceased along with Peimane, deceased objected and said he would
not be handcuffed when he does not know
what he has done. P.W.1 was
at the time sitting next to the Deceased. A voice said take away the
pistol from the deceased's waist.
P.W.1 realised some people were
standing. Just then P.W.1 heard a gun report. The light that had been
lit was extinguished. There
was pandemonium, some people rushed

5

out
through the door while others wen out through the window.

As
deceased went out through the door, P.W.I heard Deceased say, "You
assault me, your mother's vagina". P.W.I was left
in the house
with Peimane, Malikela and Malefetsane. When P.W.1 went out of the
Court, he realised Deceased had fallen below the
stoep. People were
assaulting Deceased, only P.W.2 Mosiuoa Mapetla was trying to stop
them saying, "Stop men*. At that stage,
he saw Accused Number
One with an iron rod or a sword about to assault Deceased. He said to
P.W.1, "Do not ask questions,
don't you see this man has shot
me". Accused One threatened P.W.1 apparently because P.W.1
seemed to be about to dissuade
him from assaulting deceased. At this
time P.W.1 went behind the house nearby to urinate and then spent
some time there smoking.

P.W.'1
emerged from behind the house to find the deceased carried on a
wheelbarrow on the way to Chief Lebolo Jonathane's house.
When they
were at the Chief's place he heard Accused Number One say he does not
wish to be put in the same house with his enemy.
By enemy Accused One
was referring to the Deceased. P.W.1 then left. The

6

night was
dark. There might or might not have been any clouds in the sky, P.W.1
does not remember. Accused One was still able to
walk. P.W.1 then
left for home with Monyase Rasello (Accused Two) and Accused Five.

The next
Crown Witness P.W.2 Mosiuoa Mapetla aged 73, told the Court that he
was the headman of the village. He could not read and
write but he
was unusually good at estimating time. He was very intelligent and a
good communicator who gave his evidence well.
His eye-sight was very
bad but he claimed in 1988 his eye-sight was still very good. The
Accused did not challenge this fact.

P.W.2
said many of the Accused had joined him out of curiosity when he had
been sent to summon Deceased and Peimane (P.W.5) before
the Chief,
Leboto Jonathan. The only person who had been instructed by the Chief
to go with him to call Deceased and Peimane was
Tsokolo Tsitsinyane.
Although P.W.2 initially denied this fact, it emerged during
cross-examination that Chief Leboto Jonathan
had given him a letter
with which to invite Deceased to appear before him. Everything was
not verbal as P.W.2 had initially told
the Court.

7

Many
people attended this enquiry into the theft of Chief Leboto
Jonathan's cattle with which Deceased and Peimane were suspected.

According to him more than 25 people were present. Deceased and
Peimane denied the allegation although Malikela said they had taken

the cattle. P.W.2 claims he left for home leaving the questioning to
continue. When he was between 100 and 200 paces he heard a
gun
report. He went back to investigate. When he was about 40 paces from
the chief's court, he heard Deceased say, "You assault
me your
mother's vagina". He saw Deceased was being assaulted by many
people and that he was stumbling. He could not distinguish
the
assailants clearly because they were many.

As
Deceased fell, he came between Deceased and his assailants pleading
with them to stop. He was assaulted along with the Deceased
as he
virtually lay on top of the Deceased. After he had reprimanded these
people they stopped and stood some distance away. It
was at that
stage that P.W.2 observed the people who were at the front of the
crowd. These were Accused One, Accused One's brother
Tsietsi (now
deceased), Lillo Tsiu, Jordan Maitse and Accused Number Seven. The
impression that P.W.2 might have created by implication
in his
evidence in chief was

8

that when
he saw these people who must have been assaulting Deceased because
none of the many people in the vicinity was stopping
the fight. In
cross-examination he clarified the position by saying he observed all
these people after he had stopped the fight.

It was
when the general assault on the Deceased by part of the crowd had
stopped and it had stood aside that Accused Number One
left the Crowd
and came to P.W.2 and the Deceased. Accused Number One was carrying a
sword or a metal object that looked like a
sword which was made out
of a plough handle. Accused One asked his brother (moaning Deceased)
why Deceased had shot him. Both Accused
One and Deceased share the
surname of Moshoeshoe and are therefore cousins. Deceased at the time
was sitting on his buttocks showing
signs of being injured. P.W.2
says he looked carefully at the object Accused One was carrying.

As
Accused One came towards the Deceased P.M.2 stepped back. Accused One
delivered a blow on the Deceased on the head. P.W.2 says
he rebuked
Accused One but Accused One said:

9

"I will kill you with him if you protect people who shoot us."

P.W.2
said he did not intervene because Accused One had a weapon which
P.W.2 could not be able to ward off. Accused One delivered
several
blows on the Deceased. Deceased had no chance to do anything. None of
the other people gathered did anything. When Accused
One had
finished, he went away. P.W.2 says he saw P.W.I for a short time
during the assault. The fracas may have lasted about ten
minutes.
P.W.2 says he then left to go and report what had happened to the
chief.

Deceased
was brought to the chief's home in a wheelbarrow. P.W.2 did not see
anything else that night. The following day he went
for the police.
By then Deceased had died. He came with P.W.3 Detective Warrant
Officer Molefi. P.W.2 says he gave P.W.3 the names
of the people he
saw during the fracas. P.W.3 took the body of the Deceased together
with some of the people he mentioned including
Accused One who was
injured. Both Accused One and P.W.2 were sent to the doctor for
medical attention by P.W.3.

10

Under
cross-examination P.W.2 was insistent that Accused One was able to
walk during the time he saw Accused One assaulting Deceased.
P.W.2
denied that Accused One was so badly injured that he could not have
assaulted Deceased. In cross-examination P.W.2 states
that some
people were just standing outside the chief's court. There were those
who were assaulting Deceased and those who were
not. P.W.2 says he
received blows on the arms, the thighs and all over at the time he
had spread himself over the deceased. He
was not hit on the head. At
this time he could not see everything else. P.W.2 was taxed about the
effect the gun shot would on
Accused One's thigh, he was emphatic
that it did not cause Accused One any loss of mobility.

When
during cross-examination it was put to P.W.2 that Accused One does
not own a sword nor did he have one that night. P.W.2 said
Accused
does have a sword. His reason for saying that is that Accused One
produced that sword and handed it to P.W.3 Warrant Officer
Molefi
before they were taken away by P.W.3. P.W.2 says at one stage he was
detained by the police Leribe as a suspect that is
why his evidence
is not identical to what he said at the Preparatory Examination.
P.W.2 did not seem to

11

distinguish
between the statements he made at the Preparatory Examination and to
the Police. P.W.2 said he was detained for a month
as a suspect, he
later corrected himself and said he was detained for two days. I
found this error surprising because as I noted
from the outset P.W.2
has a sense of time that is exceptional for an illiterate person.
P.W.2 insisted that he saw Accused 7 among
the people in the front
row of the group that had stood aside after the had stopped the group
from assaulting the Deceased.

The
medical evidence shows that Deceased's skull was smashed. There are
cuts on the head. Deceased died of subdural haematoma. The
doctor's
deposition was admitted by consent (as already stated) and it was
made P.W.4. The deposition of the late Peimane P.W.5
who is deceased
deals with his ordeal but does not deal with the details of the stick
fight because he claims he remained in the
Chief's court with Accused
Seven and others.

The
deposition of P.W.6 Thabiso Mokeke (also deceased) was read into the
record. P.W.6 claims he was made to lie and. say Deceased
had stolen
catlle by Chief Leboto Jonathane, Kata Nchee (Accused Six) and
Monyane.

12

These
people wanted the truth (so he says) but all they could accept was
the lie that Deceased stole Chief Leboto Jonathan's cattle.
They had
said if he did not speak the truth they would kill him. P.W.6 said he
was never assaulted. This evidence from its nature
could not persuade
me and the Assessors that it was evidence of quality. Since it was
not relevant to this case we did not find
it useful. The evidence of
P.W..7 Azael Nthahane deals with the finding of cattle and is not of
any importance.

The Crown
closed its case. Accused numbers 2, 3, 4, 5 and 6 were discharged on
the grounds that a prima facie case had not been
made against them.
Only Accused numbers 1 and 7 were found to have a case to answer.

Accused
Number One gave evidence in his own defence. His evidence was simply
a denial that he assaulted Deceased. The reason being
that he was
shot on the thigh, therefore because of pain he could not walk. All
evidence against him is false, so he said. He said
P.W.2 was telling
lies about him because they have quarrelled over animals that
destroyed Accused One's crops. Deceased had shot
him because he said
Accused One talks too much.

13

P.W.3 was
telling a lie when he said Accused Number One handed a sword to him.
In any event the sword did not exist for the court
to see. He
admitted that a sword had been an exhibit before the magistrate.

I have no
hesitation in saying 1 believe the evidence of P.W.2 that Accused One
was still able to move. It was dark but not so dark
that a person at
three paces could not be recognised. P.W.2 knew Accused One very
well. Accused Number One did speak telling P.W.2
not to intervene
because he would kill P.W.2 if he helped deceased, because deceased
had shot Accused One. I believe what P.W.2
says namely that Accused
One hit Deceased several blows on the head while Deceased was sitting
down after sustaining some injury
from the first assault. The
injuries that deceased sustained are consistent with the weapon used
by Accused One. No wonder Deceased's
skull was smashed. I have no
hesitation in rejecting the evidence of Accused Number One as untrue.

Accused
Number 7 did not give evidence and closed his case. The Court has
decided to give him the benefit of doubt as the evidence
of P.W.3 in
itself is not enough for the Court to convict. The evidence of P.W.2
does not

14

form an
adequate link in the chain to secure a conviction. As the people had
gathered at the chief's court for a lawful purpose
their presence
there cannot suggest any unlawfulness merely because they did not
help Deceased during the fight.

The
problem I have to grapple with is whether Accused is guilty of murder
or culpable homicide.

Accused
One never in our view had any cooling off period. From the time he
was shot to the time Accused One belaboured Deceased
on the ground
there was never a determinable cooling off period. The fight which
took place was a fluid one. P.W.2 said the fight
took ten minutes. It
could have been much shorter. Accused One seems to have been involved
throughout. Therefore it is safer to
find Accused One guilty of
culpable homicide not of murder.

Accused
One is found guilty of culpable homicide.

Accused
Number Seven is found not guilty and id discharged.

15

My
Assessors agree.

W.C.M.
MAQUTU

JUDGE

Delivered
at Maseru This ....17.m....Day of August, 1994.