CRI/T/1/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

SOLONE
MPOBANE ACCUSED

JUDGMENT

Delivered
by the Honourable Chief Justice Mr Justice J.L. Kheola on the 15th
day of March. 1999

The
accused is charged with the murder of 'Mathabo Moqomisa on the 22nd
December, 1992 at ha Maqabane in the district of Berea.

He
pleaded not guilty to the charge.

The first
witness called by the Crown is Moeketsi Moqomisa. He testified that
the accused and the deceased had been lovers for a
long time and that
out of that relationship four (4) children had been born. One day he
was at the fields when the accused came
to him and asked him whether
he had not seen the

2

deceased.
Moeketsi pointed her out below the fields where she was walking. She
was about hundred or one hundred and fifty metres
from them. The
accused went towards her. As soon as they met the bundle of wood she
was carrying on her head suddenly fell down.
She turned and walked
back to where she came from with the accused following her. They were
walking normally. He (Moeketsi) left,
for his village in a hurry
because rain was coming. That was the last time he saw the deceased.

On the
following day he returned to the fields where he still had some work
to do. While he was there he saw men and women from
his village
looking into the dongas as if they were searching for something. He
asked his mother what those people were looking
for, she told him
that they were looking for the deceased who had been missing since
the previous day. He unspanned his oxen and
went to his home. On
arrival there he noticed that the villagers had gathered at the
forecourt of the house of the deceased. He
told them that on the
previous day he saw the deceased in the company of the accused. He
suggested that they go and ask the accused
the whereabouts of the
deceased. Some messengers were detailed to go and summon the accused
to appear at the chief's place. The
messengers eventually brought
him. He was asked about the deceased. He denied having seen her on
the previous day.

3

The
villagers handcuffed him and threatened to beat him up if he refused
to show them where she was. The accused continued to deny
that he had
any knowledge of the whereabouts of the deceased. At about that time
some men who were on the mountain shouted to inform
the villagers
that they had found a panty and a pool of blood which were about
hundred or hundred and fifty metres from where the
dead body of the
deceased was subsequently found. Moeketsi says that the dead body was
found at the bottom of the cliff and that
there in no path at that
place. He denied that the deceased used to partake liquor.

P. W.2 is
one Motlalepula Majoro. He testified that on the day in question it
was discovered that the deceased was missing. He and
the other
villagers looked for her in the fields and in the dongas. While they
were still searching for her Moeketsi Moqomisa told
them that he had
seen the deceased in the company of the accused on the previous day.
As a result of that information the accused
was summoned to the
chief's place. He testified that the search was extended to the
mountain because they could not find her in
the fields and dongas.
They found a pool of blood on the mountain near a cave. There was a
panty in that pool of blood and it was
identified as the deceased's
panty. He saw shoeprints similar to those of the accused's shoes
which he was wearing on the previous
day. The shoeprints were at the
place where a pool of blood was found.

4

Accused
continued to deny any knowledge about the whereabouts of the
deceased. Something which looked like blood was seen on his
shoes. He
denied that it was blood and explained that he had been building.
After the accused had denied any knowledge about where
the deceased
was, he was handcuffed and a long rope was tied to the handcuffs so
that he could lead them to where the deceased
was. They drove him to
where a pool of blood with a panty in it had been found. When they
arrived there he continued to deny everything
including the pool of
blood and the panty. It was at this stage that it was decided that he
must be beaten up. He was hit with
a sjambok several times until he
said to Motlalepula:

"Brother-in-law come I shall show you where the person is. "

He led
them to a cliff and when they came there he said:

"This is where 1 threw this person down the cliff. "

P.W.2
says that he observed some blood at that place but he could not see
that person at the bottom of the cliff They went down
through a pass
and he led them to where the deceased was. It was a place full of
thick bushes. The deceased could not be seen from
a distance because
of the shrubs. The accused led them to that place and pointed out the
deceased.

5

The next
witness is Qhoeng Mokoma who is the chief of the village of the
deceased His evidence is the same with that of P. W. 2.
He confirms
that the accused denied any knowledge of the whereabouts of the
deceased. He also saw something like blood on the shoe
of the
accused. He says that the place where a pool of blood with a panty in
it had signs of scuffle or struggle on the grass and
the soil around
it. The shoeprints on the soil were similar to the prints of the
shoes of the accused. He confirms that the accused
was hit with a
sjambok before he led them to where he pointed out the body of the
deceased. He had first of all shown them the
top of the cliff and
said that he had thrown her down from there.

The
accused went into the witness box and gave a version which is
completely different from that of the Crown. However there are

certain parts of his version which are the same with the story of the
Crown. His version is that on the 22nd December, 1992 he
was in the
village of the deceased. He had gone there to drink beer. He actually
consumed a good quantity of Sesotho beer and the
usual European beer.
When he left the village he decided to call at the mountain in order
to check his animals. He met the deceased
just by chance in the
fields. He denies that he first met P. W. 1 and asked him whether he
had not seen the deceased. When he met
the deceased she was carrying
a bundle of wood on her head and going in the direction of her
village. As soon as they met she put
down

6

the
bundle of wood and they walked together going to his home because his
wife was not at home on that day.

When they
got to the fields on the top of the plateau he picked a quarrel with
her. The cause of their quarrel was that he had recently
discovered
that the deceased who had been his lover for many years had an affair
with another man. This state of affairs was altogether
unacceptable
to him because for those many years their relationship had been warm
and peaceful. Three children had been born out
of that relationship.
As they quarrelled he hit her on the shoulders with a poplar stick he
had been holding. She ran away. He
chased her for a distance of about
fifteen (15) paces and he returned. He picked up her shawl, doek and
skipper which fell when
she was running away. He took the articles to
his home and hid them amongst the aloes near his home. He says that
he was not aware
that the deceased had fallen down the cliff during
her flight from him.

He denies
that he pointed out the body of the deceased where it was found. His
version is that he was escorted to that place by
the villagers who
pointed out the body to him. They had earlier shown him the pool of
blood in which there was a panty. This place
was near a cave. He says
that on the previous day he and the deceased did not go to that cave.
They passed about three hundred
paces

7

(indicated) from it on the eastern side.

The
accused denies that he said he threw the deceased down the cliff. He
admits that he beat her up but he had no intention to kill
her. He
says that when he left the village of the deceased he was moderately
drunk He denies that the deceased suddenly dropped
the bundle of wood
when he met her. She actually put it down deliberately. When asked
about the other man who had an affair with
the deceased, he said that
the man came to deceased's house at night and knocked at the door
while he (accused) was sleeping with
her.

Mr.
Khauoe, attorney for the accused, submitted that in a case depending
on circumstantial evidence, i.e. in reasoning by inference
the
following rules cannot be ignored as they govern the use of
circumstantial evidence:

1. The
   inference sought to be drawn must be consistent with all the proved
   facts. If it is not, the inference cannot be drawn.

   
   

2. The
   proved facts should be such that they exclude every reasonable
   inference from them save the one sought to

   
   

8

be drawn. If they do not exclude other reasonable inferences, then
there must be a doubt whether the inference sought to be drawn
is
correct. " per Watermeyer, J.A. in Rex v. Bloom 1939 A.D. 188 at
pp 202 - 203.

It is
also correct that the case for the Crown rests partially on the fact
that the accused pointed out the body of the deceased
in a very
obscure place covered by thick shrubs. The contention by the Crown
was that the only person who could point out the body
from such an
obscure place was a person who had prior knowledge that it was lying
there. Mr Semoko, Crown counsel, submitted that
accused had prior
knowledge because he threw the deceased down that cliff. There is
overwhelming evidence of credible witnesses
that the accused pointed
out the body of the deceased in that obscure place. I believed the
three Crown witnesses who gave evidence
before me that it was the
accused who pointed out the body of the deceased. The accused is
telling a lie that it was pointed out
by the villagers themselves. No
reason was given why the witnesses could lay their heads together to
falsely implicate the accused
in this ghastly offence. They had shown
no hostile attitude towards him for many years during his
relationship with the deceased.

9

It is
common cause that after he was arrested and handcuff he was severely
beaten up by some of the villagers who demanded of him
to show them
the deceased. The assault appears to have been serious because the
accused alleges that he sustained injuries on the
head, arms,
shoulders, below the left eye and on the body. It seems that because
of the injuries he had when he was arrested the
police decided to
have him examined by a medical practitioner. However his medical
report cannot be found in the file. The crucial
question is whether
this evidence of pointing out which is tainted by the assault of the
accused is admissible? The answer is that
it is not admissible.

In
Malefetsane Phala Mabope & Others v. Rex 1993 - 1994 L.L.R. 154
it was held that "the evidence of a pointing out may
be
admissible provided the pointing out was made freely and voluntarily
but the Crown had in the instant case not proved beyond
a reasonable
doubt that the pointing out had been made freely and voluntarily. "

At page
169 of the same case Ackermann, J.A. said: "In the light of the
judgment in S. v. Sheehama, supra, any such pointing
out would be
inadmissible unless freely and voluntarily made. The onus was on the
Crown to prove that, notwithstanding the

10

fact
that accused 1 had shortly before been tortured in order to make
statements favourable to the prosecution, the effect of such
improper
inducement had ceased to operate by the time he pointed out the
various matters referred to. "

In the
present case the Crown failed to prove this. It could not even
attempt to do so because the assault of the accused continued
until
the verge of the actual pointing out the dead body.

The
pointing out is again challenged on the ground that it was forced in
violation of section 8 of the Constitution of Lesotho which
provides
that,

1. No
   person shall be subjected to torture or to inhuman or degrading
   punishment or other treatment.

   
   

2. Nothing
   contained in or done under the authority of any law shall be held to
   be inconsistent with or in contravention of this
   section to the
   extent that the law in question authorises the infliction of any
   description of punishment that was lawful in
   Lesotho immediately

   
   

11

before
the coming into operation of this Constitution. "

I have
come to the conclusion that the pointing out in the present case is
altogether inadmissible because it was not freely and
voluntarily
made.

The next
question is whether having thrown out the evidence of pointing out
there are any other circumstances or facts from which
an inference of
guilt can be drawn. Throughout the preliminary investigations the
accused tried to distance himself from the disappearance
of the
deceased. He repeatedly denied any knowledge about her until he was
confronted with the evidence of P.W.I who testified
that on the
previous day the accused came to him and asked him whether he had not
seen the deceased. P. W. pointed her out. She
was walking in the
fields. It is clear that if it had not been because of this evidence
which connected him with the deceased the
accused would have got away
with it. The only reason why he distanced himself from her
disappearance is because he knew what he
had done to her.

The pool
of blood with a panty of the deceased in it is another important
factor to be taken into consideration. It proves beyond
reasonable
doubt that before the deceased was thrown down the cliff she had been
severely assaulted

12

and
probably so incapacitated that she could easily be dragged to the
cliff or be easily carried without much resistence. I am
saying this
in the light of that large pool of blood. To have bled to that extent
the wound or wounds must have been very large.
It is not possible to
distinguish the wounds inflicted on the deceased before she was
thrown down the cliff, from the injuries
she sustained as a result of
the fall. However I am convinced that the initial injuries sustained
near the cliff were very serious
and enabled her assailant to deal
with her as he pleased because she must have been dazed.

There is
evidence that the shoe prints around the place where a pool of blood
with deceased 's panty in it were similar to the prints
of the
accused's shoes. This evidence was not challenged at all and yet it
directly connects the accused with the murder of the
deceased. It
proves that it was the accused who assaulted the deceased at that
place. In addition to this something like blood
was seen on one of
his shoes.

The
defence challenged this evidence on the ground that there is no
expert evidence that the blood in which the panty of the deceased
was
found, was human blood. That is quite right but the evidence we have
is that the panty found in the blood was the property
of the
deceased. It was identified positively by

13

'Mamatebele who had seen her wearing it. We know that it was the
deceased who sustained wounds that day. No animal or bird was
found
dead or injured in that area. It is unthinkable that the blood found
there could be of any animal or bird and that the panty
of the
deceased should be found in it. I have come to the conclusion that it
was the blood of the deceased. No expert evidence
is necessary for
this finding.

I find it
improbable that a person wearing shoes similar to those of the
accused could get involved in a fight immediately after
the accused
ha ben fighting with the deceased. The deceased was wearing a skipper
and a skirt It is altogether improbable that
when she ran away her
skipper could fall down. The accused is telling a lie that the
deceased was not wearing the skipper as they
walked together towards
his home. No Mosotho woman can go about in the veld with her chest
/trunk exposed. The truth of the matter
is that the accused stunned
the deceased by striking her with a stick and then undressed her of
her panty and other clothes.

Another
factor which has to be taken into account is that some clothes of the
deceased which she was wearing on that particular
day were
subsequently found in the possession of the accused and he had hidden
them. His explanation that he

14

hid them
because he did not want his wife to see them is false beyond any
reasonable doubt. He even contradicts himself when the
says that the
shawl had been at his house for some time, at the same time he says
it fell down when the deceased ran away after
he hit her on the
shoulders. His intention was to hide her clothes so that nothing
could connect him with the murder of the deceased.
He pointed them
out only after he had been in the custody of the police. There is
nothing to suggest that during his detention
the police applied any
pressure to force him to point out the clothes.

The
cogency of circumstantial evidence usually arises from the number of
independent circumstances which all point to the same conclusion.

Each fact may be in itself perfectly consistent with innocence, but
the court is not obliged to consider them in isolation. The
question
is whether the evidence as a whole furnishes sufficient proof of
guilt. In R. v. De Villiers 1944 A.D. 493 at p. 508 -509
Davis,
A.J.A. said:

"The court must not take each circumstance separately and give
the accused the benefit of any reasonable doubt as to the inference

to be drawn from each one so taken. It must carefully weigh the
cumulative effect of all of them together, and it is only after
it
has

15

done so that the accused is entitled to the benefit of any
reasonable doubt which it may have as to whether the inference of
guilt is the only inference which can reasonably be drawn. To put the
matter in another way; the Crown must satisfy the Court, not
that
each separate fact is inconsistent with the innocence of the accused,
but that the evidence as a whole is beyond reasonable
doubt
inconsistent with such innocence."

In R. v.
Mthembu 1950 (1) S.A. 670 at pp 679-680 Schreiner, JA. said:

"I am not satisfied that a trier is obliged to isolate each
piece of evidence in a criminal case and test it by the test of

reasonable doubt. If the conclusion of guilt can only be reached if
certain evidence is accepted or if certain evidence is rejected,
then
a verdict of guilty means that such evidence must have been accepted
or rejected, as the case may be, beyond reasonable doubt.
Otherwise
the verdict could not properly be arrived at. But that does not
necessarily mean that every factor bearing on the question
of guilt
must be treated as if it were separate issue to which the test of
reasonable doubt must be distinctly applied. I am not
satisfied that
16 the possibilities as to the existence of facts from which
inferences may be drawn are not fit material for consideration
in a
criminal case on the general issue whether guilt has been established
beyond reasonable doubt, even though, if the existence
of each such
fact were to be tested by the test of reasonable doubt, mere,
probabilities in the Crown's favour would have to be
excluded from
consideration and mere probabilities in favour of the accused would
have to be assumed to be certainties. "

The pool
of blood found near the cave seems to suggest that the deceased lay
at that spot for some time in order for the blood to
collect in that
quantity. And this is turn suggests that the actual killing of the
deceased might have taken place there. In addition
to this there is
evidence that there were signs or disturbances showing that there was
a struggle between the accused and the deceased
because her blood and
panty were there and the shoe prints similar to those of the accused
were there. Furthermore the accused
was the last person seen going in
that direction with the deceased. What ever the accused said to the
deceased when they met in
the fields we shall never know but he must
have uttered very threatening words which forced the deceased to
unceremoniously and
suddenly drop a bundle of wood from her head. She
suddenly went in the opposite

17

direction with the accused We know that she was in a hurry to return
to her home

where she
had left a pot in the fire.

In the
light of the above evidence 1 am of the view that the deceased was
murdered at the place near the cave where a pool of her
blood was
found. The subsequent dropping of the body down the cliff was to
conceal the actual cause of death.

I have
carefully weighed the cumulative effect of all the circumstances
together and have come to the conclusion that the Crown
has proved
beyond a reasonable doubt that the accused killed the deceased. He
had direct intention to kill her.

The
accused is found guilty of murder. My Assessors agree.

18

EXTENUATING CIRCUMSTANCES

In S.V.
Ndhlovu (2) 1965 (4) S.A. 692 (A.D.) The headnote reads as follows:

"Intoxication may reduce the moral blameworthiness of a crime or
may, depending on the circumstances, aggravate the aspect
of
blameworthiness, as when a man deliberately fortifies himself with
liquor to enable him insensitively to carry out a fell design.
In the
result, in seeking a basis principle in regard to intoxication and
extenuation in murder cases, it is neither necessary
nor to desirable
to say more than that the Court has a discretion, to be exercised
judicially upon a consideration of the facts
of each case, and in
essence the Court weighs the frailties of the individual with the
evil of his deed. Thus in murder cases intoxication
may, depending on
the facts, be taken into account as an extenuating circumstance
warranting a lesser sentence than that of death,
and there is no
warrant for the view that intoxication cannot be an extenuating
circumstance unless there is some element of provocation
by the
victim.

19

In the
present case it is common cause that the deceased had been drinking
liquor for approximately three hours. He was moderately
drunk when he
left for his village. There is no evidence that he deliberately
fortified himself with liquor to enable him insensitively
to carry
out a fell design, namely to kill the deceased.

In the
exercise of my discretion in this matter I have come to the
conclusion that intoxication is an extenuating circumstances
in this
case.

The
accused is therefore guilty of murder with extenuating circumstance.

In
mitigation of sentence Mr. Khauoe submitted that in sentencing the
accused the Court must take into account that the charge against
the
accused has been hanging over his head for the last seven (7) years;
that he is still facing a civil claim of ten (10) head
of cattle as
compensation to the dependents of the deceased; that he still has his
own children to maintain.

Having
taken into consideration all these mitigating factors I also took
into account the ghastly nature of this offence; and unnecessary

deprivation of the children of their last breadwinner because their
father is late; the accused did not catch the deceased red-handed

committing adultery with another man. His was

20

just a
suspicion based on very flimsy grounds. The sentence to be imposed by
the

Court
must deter others from committing a similar offence.

For these
reason the accused is sentenced to twelve (12) years' imprisonment.

J.L.
KHEOLA

CHIEF
JUSTICE

15TH
MARCH, 1999

For Crown
: Mr Semoko

For
Defence : Mr Khauoe