C OF A
(CIV) NO.1 OF 1994

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

MOHLOLO
NTSOKOLO

VS.

REX

HELD AT:

MASERU

CORAM:

Steyn JA

Browde JA

Kotze JA

JUDGMENT

STEYN JA:

Appellant
who was Accused No. 12 in the Court below was convicted in the High
Court on three counts. These were:

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Count 1 : Murder

Court 2 : Assault with intent to do grievous bodily
charm.

Count 3 : Assault with intent to do grievous bodily
harm.

On Count 1 : Appellant was sentenced to 8 years' imprisonment.

On Count 2 : 18 months' imprisonment

On Count 3 : 18 months' imprisonment.

He
appeals both in respect of his convictions and sentences.

No less
than 21 accused were charged in this matter with the murder of the
deceased and assault upon three complainants. These offences
were
committed because it was suspected that the deceased and the
complainants were witches. With the use of witchcraft they were

purported to have caused the death of the children of one MOTHEO
MATJENE (accused No. 1 in the Court below). The events are fully

described in the judgment of the High Court and are only repeated
insofar as they are relevant to the appeal noted by the Appellant.

The
evidence establishes that the deceased died as a result of a broken
neck. It is clear that this injury and the other injuries
sustained
by her, as well as the

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extensive
injuries sustained by the complainants, were occasioned during a
protracted period of detention and torture by a horde
of villagers
who shared the conviction that the deceased and the complainants were
witches. As such, the villagers suspected that
they had caused the
death of accused No.1's children at a circumcision school.

During
the course of the hearing, it was alleged that Appellant had been
involved in the events during which the complainants had
been
"driven" like cattle over rough terrain over a period of
two days, questioned as to their possible culpability as
witches for
the death of the children and seriously assaulted.

Three
issues arose for decision by the Court a quo.

1. Was
   the appellant involved in the assaults and

   
   

2. Did
   he through his involvement in the assaults cause the death of the
   deceased.

   
   

3. If
   so, did he do so with the intention to kill?

   
   

The
learned Judge a quo answered all three questions in the affirmative.
With due reliance on the doctrine of common purpose, he
found that
the Appellant participated in the assaults with knowledge and
appreciation that they could cause death or cause grievous
bodily
harm and found him guilty of murder.

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The
judgment in this respect reads as follows:

"It seems to me that in the present case there is no need for
the Crown to establish that any of the accused committed any

particular act of assault. It is sufficient to show that they had
common purpose to either kill the deceased and the regarded the

complainants and the deceased as witches who had killed the children
of A1 by witchcraft. They assaulted them with various weapons
such as
sjamboks, sticks and a knobkerrie. They chased them over a fairly
long distance during which time the deceased and the
complainants
fell down but they were whipped with sjamboks to force them to get up
and walk or run. All the accused associated
with others in meting out
severe punishment to the so called witches. Evidence has shown what
each of the accused did. In other
words Crown was able to prove
particular acts done by each of the accused. It would have been
enough for the Crown to have proved
that the accused had common
purpose."

After
citing authority for the proposition that association in the common
design makes the act of the principal offender the act
of all, the
learned Judge goes on to say:

"In the present case the accused must have foreseen, and
therefore by inference did foresee, the possibility that the brutal

assaults meted out to the so called witches were likely to cause
death but they were reckless as to whether death ensued or not.
There
is evidence that at one stage A1 hit the deceased between the
shoulders with a knobkerrie; at one stage the deceased fell
down on
that rough . terrain. The fact that she broke her neck at the time
that she was being driven by the accused should not
come as a
surprise to the accused. She fell down on that rough terrain and was
severely assaulted with various weapons.

Association in the common design need not be express, it may be
implied from conduct, (R. v. Duma and Another, 1945 A.D. 410 at

p.415).

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It is a
well established principle of our law that a prior agreement on a
common purpose is not required, it is sufficient if collaboration

began without premeditation and on the spur of the moment (S. v.
Maree, 1964 S.A. 545 (0); R. v. Mashotonga, 1962 (2) S.A. 321).
In
the present case some of the accused, such as A7, joined the party
that was escorting the so called witches and started whipping
them.
There was no prior agreement. Most of the accused joined in the
assaults as soon as they heard that it had been established
that the
complainants and the deceased were witches who were responsible for
the deaths of the children of A1.

For the
reasons given above I have come to the conclusion that the Crown has
proved its case beyond a reasonable doubt."

Mrs.
Kotelo for the Appellant contended that in formulating his approach
as outlined above, the Court a quo misdirected itself on
the facts.
In this regard, she pointed to the fact that there was a considerable
body of evidence which confirmed the version of
the appellant which
he gave in evidence that he had on numerous occasions intervened on
behalf of the "witches" in order
to prevent them being
seriously assaulted. Thus for example P.W.I said that appellant
intervened on behalf of the complainants
when they were being
lynched. This witness also . confirmed that the deceased was placed
on Appellant's horse prior to her death.
P.W.5 says Appellant stopped
the lynch party - and more particularly Accused No. 1 - from
seriously assaulting the complainant
Popotoana. At this stage accused
No. 1 was about to use a stone to strike this complainant. (See pp.
264 and 266 of the record).

P.W.6 was
even more explicit as to the protective role that appellant played.

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At pp.
341 - 343 the witness says that the Appellant stopped the assault
saying that "please people are never treated in this
manner"
and that "people should not be killed". P.W.9 also gave
evidence to this effect saying that he saw P.W.I
and Appellant
"intervening on behalf of these four people (the deceased and
three omplainants) who were being assaulted.
They succeeded in
intervening. He also says that he saw Appellant putting the deceased,
who appeared to be tired, on his horse.
"A1 was leading the
horse and A12 (Appellant) walking along supporting Mamvulani (the
deceased)". The witness says that
"when they were some
distance (away) I saw Mamvulani on the ground near the horse".
The next day he found that the deceased
near this spot, she was dead.
She had been moved. Her eye had been removed as well as part of her
ear. Subsequently he also saw
that the deceased's vagina was missing
- "the whole of it was cut out with a sharp instrument...."

Mrs.
Kotelo relied very heavily on the evidence of P.W. 12 for her
contention that Appellant had, far from belaying the complainants
and
the deceased, actually prevented the assaults from being life
threatening. Thus for example at p.637 of the record this witness

deposed to the fact that A1 levelled a blow with a stick at one of
the complainants (Popotoana) but the blow did not land "as
he
(No.1) was stopped by A12".

The role
that Appellant played in the events at the stage this witness was

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introduced
into the events is described by her as follows:

"C.C. Yes, you said you got to Moiketsi's place you found house
full of people please go on from there.

P.W.12 I was ordered to go in sit with the other witches.

C.C. Yes, who were the other witches go on what happened?

P.W.12 It was Popotoana, Mamvulani, 'Mantsane then it was me.

C.C. Yes, there were many people in the house?

P.W.12 There were many people in the house.

C.C. Yes, did you recognize the people please tell His Lordship if
you knew some of them?

P.W.12 I recognized some I did not. C.C. Who did you recognize?

P.W.12 I recognized A1, A8, and then Jobo thus All then A12 and
A11's father.

C.C. What is the name of A11's father?

P.W.12 Moiketsi my Lord.

Interp That will be A16 he has passed away.

P.W.12 Then I recognized A10 then I also recognized Moroke.

C.C. Yes, if you don't remember or if that is all then by all means
say so.

P.W.12 I also recognized Khupiso, I also recognized A19 well I did
not recognize the others, I also remember Makanke.

C.C. Yes, you are told to join the other witches.

P.W.12 The person who talked to me is Mohlolo.

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H.L. A?

Interp. A12 My Lord.

C.C. Yes, what did he say to you please proceed?

P.W.12 A12 asked me to tell he truth.

C.C. Yes, what did he say, did he ask you anything so that you could
tell the truth? Please go on

P.W.12 When he asked me to tell the truth he asked me whether I knew
those people.

C.C. Yes, tell us who are those people?

P.W.12 'Mantsane, Popotoana and the deceased Mamvulani

C.C. Yes, go on.

P.W.12 I told him in reply that I did not know them I saw one
Popotoana and Mamvulani I also saw her once 'Mantsane was my first

time to see him he asked me whether I know Motheo's children, in
reply I told him that I did not know them there after he kept
quiet,
he said that he was leaving that he was tired he is going to sleep.

C.C. Yes, he went what happened please go on?

P.W.12 He left and Moiketsi came in when A16 got in he asked, "have
they told the truth?"

There was evidence of a damning nature against Appellant. This was
given by P.W.11 who alleged that the Appellant assaulted her
the
whole night. He was the person who beat the complainants very
severely and ordered them to undress. This witness denied that

Appellant ever intervened in order to protect anyone. Indeed
accordingly to her "He was out to kill. He never intervened.."

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It is
apparent that this evidence is in direct conflict with the testimony
of P.W. 12 not only on the question as to whether Appellant

intervened or not, but also as to whether he stayed in the house and
participated in the assaults. The problem is, as Mrs. Kotelo
pointed
out, that the learned Judge nowhere in his judgment deals with this
conflict, neither does he evaluate the merits of the
competing and
irreconcilable versions deposed to. Certainly it would be difficult
for us, in the absence of such an evaluation
and a reasoned finding,
to reject the evidence of P.W. 12 on these issues, more particularly
as her evidence is confirmed by other
Crown witnesses. In fact, a
reading of the evidence leaves us as a Court of Appeal with a clear
impression that P.W.11 was in material
respects an unsatisfactory
witness.

The Court
a quo did make a credibility finding in respect of the Appellant.

It says
the following in this regard:

"A12 Mohlolo Ntsokolo's evidence is to the effect that during
the ordeal of the complainants and the deceased he played the
part of
a . benefactor. At various times he stopped many people from
assaulting or attempting to assault he complainants and the
deceased.
He says that he does not know how they sustained the injuries which
they had. I have formed the opinion that A12 has
told this Court
nothing but lies. There is overwhelming evidence by not only the
complain­ants but by independent witnesses
that he severely
assaulted the com­plainants and the deceased. There is no reason
why so many witnesses can implicate him for
no apparent reason. I am
satisfied that A12 participated in the assaults of the complainants
and the deceased."

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The
finding that "there is overwhelming evidence..... that he
severely assaulted the complainants and the deceased"......appears

to some extent to rely on the evidence of P.W.11 which has however
not been critically evaluated. As stated above it was never

contrasted with the evidence of P.W.12 or with the evidence of the
other Crown witnesses concerning the protective role played
by
Appellant. That appellant did assault some of the complainants with a
whip and that he participated in "driving" them
along does
seem to have been established beyond doubt. However, his behaviour to
protect them whenever an attempt was made to use
weapons which could
cause their death, is inconsistent with a state of mind that he
either deliberately sought their death or was
reckless as to whether
their death could result from his own conduct or that of his
colleagues and to which he was proved to be
a party.

Counsel
for the Crown conceded that the failure to advert to the evidence
concerning the Appellant's intervention in protecting
the
complainants amounted to a misdirection. However she said that the
other evidence concerning appellant's participation justified
a
finding that he was guilty of culpable homicide.

The
difficulty in this regard is however, that it would not appear that
such conduct as could be attributed to Appellant and which
could
justify such a finding was proved to be causally related to the death
of the deceased. It was not established when she died
or how she came
to break her neck. Indeed the

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probability
is that when she was placed on Appellant's horse she was still alive.
She appeared "tired" at this stage
and was supported by
Appellant. Sometime later she is seen lying on the ground.
Subsequently she is found to have died. If for
example her neck was
broken as a result of a fall from the horse, which is certainly not
impossible, there would be no causal link
between the whipping
administered by the Appellant and her death.

As
indicated above, we are satisfied that by participating in driving
the deceased and the complainants over rough ground against
their
will and by seeking to elicit the truth from them by whipping them,
Appellant assaulted them and did so with the intent of
causing them
serious bodily injury. We are however not satisfied that in doing so
the Crown established that he intended to kill
her or that the
evidence establishes that he can be held criminally liable for her
death.

It
follows that the verdict of guilty of murder recorded in respect of
the Appellant on Count 1 cannot be sustained. A verdict of
guilty of
assault with the intention to cause grievous bodily harm is
substituted therefore. The sentence of 18 months imprisonment
imposed
by the Court a quo in respect of the assaults on the two other
charges seems to us also to be appropriate in respect of
this Count
(Count 1).

In the
result, the appeal succeeds to the extent that Appellant is found not

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guilty
of murder, but guilty of assault with intent to do grievous bodily
harm on Count 1. The sentence of 8 years' imprisonment
is set aside.
In place thereof a sentence of 18 months' imprisonment is
substituted. This sentence is to run concurrently with
the sentences
of 18 months' imprisonment imposed on Counts 2 and 3 both of which
sentences are also ordered to run concurrently.
The convictions and
sentences on these Counts are confirmed.

The
Appellant has already served 18 months' imprisonment and should
therefore be released immediately.

J.H STEYN

JUDGE OF
APPEAL

I concur

J. BROWDE

JUDGE OF
APPEAL

I concur
......................

G.P.C.
KOTZE

JUDGE OF
APPEAL