CRT/T/39/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

v

VINCENT
MONAHENG MUSETSE THEBE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 4th day of June, 1984.

The
accused, a 21 years old youth, is summarily charged before me with
the murder of one Mokhachane Mokhachane (hereinafter referred
to as
the deceased) in that upon or about the 31st day of December, 1982
and at or near Maqhaka in the district of Berea he unlawfully
and
intentionally killed the deceased.

Thirteen
(13) witnesses were called to testify in support of the Crown case.
Although no witnesses were called on behalf of the
defence, the
accused himself gave evidence on oath. Two (2) witnesses were called
by the court.

It was
common cause that the accused was a traditional doctor although not
yet in possession of a licence authorising him to operate
as such. It
was also not disputed that on the evening of 31st December, 1982
which was a New Year's eve, the deceased disappeared
from his home
village, Maqhaka, and his dead body was on 3rd January, 1983 found on
the plateau of Maqhaka mountain. The body was
transported to the
mortuary at Queen Elizabeth II hospital in Maseru where a post mortem
examination was performed by P.W.2, Dr.
Choi, a medical practitioner
with some 35 years experience.

2

The
evidence of P.W.2 was to the effect that on examining the body, he
found that the deceased's genital organs i.e. the penis,
the scrotum
and both testicles were completely missing The edges of the wound
caused by the removal of the genital organs were
very clean and from
that he concluded that the deceased had been castrated by the use of
a charp instrument and the absence of
the genital organs could not,
therefore, have been the result of an animal bite.

There
were blood clots on the wound thus suggesting that castration was
done before the deceased was completely deed. The body had
also
multiple contusions. It has developed numerous blisters due to its
high stage of putrefaction thus making it difficult to
detect any
other external injuries (if any). Internal examination of the body
revealed no fractures of the bones.

P.W.2
formed the opinion that deceased'death was due to loss of blood as a
result of castration and multiple contusions.

It may be
pointed out from the on set that I find no good reason why the
evidence of P.W.2 that the deceased's death was due to
loss of blood
resulting from castration and multiple contusions should be doubted.
I am prepared, therefore, to accept it as the
truth.

The
question that immediately arises is how the deceased sustained the
injuries that brought about his death. In this regard the
court heard
the evidence of P.W.3, Moitsepi Thebe, the younger brother of the
accused.

It is
perhaps significant to mention at this stage that P.W.3 was about 11
or 12 years of age and declared an accomplice witness.
It is
necessary, therefore, that his evidence be treated with caution for
as Hoffman puts it at page 416 of his invaluable work,
South African
Law of Evidence (2nd ed.).

"The danger is not only that children are highly immaginative
but also that their story may be the product of suggestion by

others."

3

The need
for caution in dealing with the evidence of accomplice witnesses was
highlighted in the leading case of Rex v. Ncanana
1948(4) S.A. 399 at
p. 405 where Schreiner, J.A. had this to say on the subject .

".......the trier of fact should warn himself . of the special
danger of convicting on the evidcence of an accomplice, for
an
accomplice is not merely a witness with a possible motive to tell
lies about an innocent accused but is such a witness peculiarly

equipped, by reason of his inside knowledge of the crime to convince
the unwary that his lies are the truth."

P.W.3 who
was allowed to testify on oath briefly told the court that on new
year's eve 1982, a space gram was being plyed at the
home of one
'Mateboho in his home village of Maqhaka and many children were
dancing and making a lot of noise to celebrate the
start of the new
year.

He
initially said the moon was shinning on that night but later changed
and said it was a dark night. The evidence of P.W.8, Sekhofa
Thebe,
was, however, that there was moonlight on 31st December, 1982. A
glance at page 11 of Horters' Legal Diary, 1982 will reveal
that on
30th December, 1982 there was a full moon. This court can take
judicial notice that when it is a full moon the moon rises

immediately after sun set. I am, therefore, inclined to believe the
evidence of P.W.8 that there was moonlight on the early night
of 31st
December, 1982.

According
to P.W.3, he was with the accused on the evening of 31st December,
1982 when the latter told him that he wanted a person
he could
mutilate (a re o batla motho ea ka mo retlang). He (PW.3) did not,
however, know the meaning of the expression "to
mutilate a
person." Accused then told him to go and call a small boy by the
name of Tlali Makhebesela. He went to 'Mateboho's
place where many
children were playing but could not find Tlali. He returned to the
accused and reported. The accused then told
him to go and call
another boy called Sanko. P.W.3 returned to 'Mateboho's where he
found Sanko and gave him accused's message.
Sanko, however, refused
to go and P.W.3 again returned and reported to the accused. Accused

4/ told
him ....

4

told him
to go and call the deceased but informed him that it was one Tsotang
and not the accused himself who was calling him. P.W.3
returned to
'Mateboho's place while accused waited at a cattle kraal belonging to
one 'Mathabiso in the village. He found the deceased
and told him
that Tsotang was calling him. This was confirmed by P.W.8 who
testified that on the evening in question he, Molefi
and the deceased
were on their way to 'Mateboho's when P.W.3 came to thorn and told
the deceased that Tsotang was calling him.
The deceased then went
with P.W.3 to a person who was leaning against a kraal. He did not
identify that person. P.W.8 and Molefi
who had been following P.W.3
and the deceased waited for them next to the gate of one Hlalefang.
While they waited, the deceased
called out and told them that they
could go and he would join them later. P.W.8 and Molefi then left and
continued on their way
to 'Mateboho's. That was the last time P.W.8
saw the deceased alive and the next thing he learned that the dead
body of the deceased
had been found on the plateau of Maqhako
mountain.

I see no
reason why the evidence of P.W.3, confirmed by that of P.W.8, that he
went to the deceased and according to accused's instructions
told him
that Tsotang was calling him should be doubted. I accept it as
probably the truth. I am also prepared to accept the evidence
of
P.W.8 confirmed by that of P.W.3 that the letter did in fact go with
the deceased to a person who was waiting at 'Mathabiso's
cattle
kraal. However, the question still remains whether the person waiting
at the kraal of 'Mathabiso was the accused or Tsotang.
P.W.3 said
that person was the accused and not Tsotang. The accused, however,
denied that he was anywhere near that kraal at the
material time and
the person leaning against the kraal could well have been Tsotang.

P.W.7,
Tsotang Motseki, testified that in 1982 he was working as a plumber
in Mafeteng. He was the deceased's relative and very
much fond of
him. He used to meet the deceased and often gave him presents. That
Tsotang and the deceased were so intimately fond
of each

5

other may
well be the r,ason why P.W.3 was told to inform the deceased that he
was called by Tsotang and not the accused himself.

According
to him, although he had come home at Maqheka on 30th December, 1982,
P.W.7 had to go back to his place of work in Mafeteng
at about 6.00
a.m. on 31st December, 1982 and could not return until after a month
due to the exigency of his work. He could not,
therefore, have been
leaning against the cattle kraal of 'Mathabiso at Maqhaka on the
evening of 31st December, 1982.

That
P.W.7 was at work and not at home on the evening of 31st December,
1982 was confirmed by P.W.10, Melafetsane Thebe, the father
of the
accused himself. He also told the court that the accused and P.W.3
were sleeping together in one of his huts at Maqhaka.
On the evening
of 31st December, 1982, they were both not at home until about
midnight when he heard the accused knocking at the
door of the hut in
which he (P.W.10) was sleeping with his wife. Accused was asking for
the key of the hut in which he and P.W.3
normally slept. Their mother
told accused that their hut was not locked as their sisters were
sleeping in there. Their sisters
normally slept with the wife of
P.W.12, Tseliso Thebe, the elder brother of the accused, when he
(P.W.12) was not at home.

P.W.10
also confirmed that on the night of 31st December, 1982,many children
were playing in the village to celebrate the start
of the new year
end he was not parti­cularly disturbed by the accused and P.W.3
coming home late.

I accept
as the truth the evidence of P.W.7 confirmed by that of P.W.3 and to
a certain degree, P.W.10 that he was not and could
not have been the
person leaning against the cattle kraal of 'Mathabiso at Maqhaka on
the evening of 31st December, 1982. There
is no doubt in my mind that
P.W.3 was testifying to the truth when ha said the person leaning
against the kraal was not Tsotang
but the accused.

6

According
to P.W.3, when the deceased came to accused at 'Mathabiso's cattle
kraal, the accused requested him to assist him to fetch
his dagga
from the plateau of Maqhaka mountain and promised to give him M2 as a
reward The deceased agreed and they (i.e. P.W.3,
the accused end the
deceased) left for the plateau of Maqhaka mountain. When they came to
a place called Mabetseng on top of the
mountain, accused said he was
feeling cold and P.W.3 and the deceased should gather some wood to
make fire. P.W.3 and the deceased
then proceeded to gather fire wood
which they carried to where the accused was waiting.

At one
time whilst the deceased had taken his bundle of fire wood to the
accused and he was still gathering some more wood, P.W.3
heard as if
something was falling over the cliffs. He did not, however, knew what
it was. When he brought the wood he had gathered
to the accused, the
latter told him that they should go round to the bottom of the
cliffs. He followed the accused and when they
came to the bottom of
the cliffs, P.W.3 noticed the deceased who pleaded : "K, please
help me I am broken" or words to
that effect. "K" was
a nickname by which the accused and the deceased usually called each
other. When the deceased thus
pleaded with him, the accused went to
him, placed a small tin on the ground before getting hold of him by
the neck and stabbing
him on the back with a sharpened iron rod.
P.W.3 got shocked or frightened by the sight of what the accused did.
He moved backward
and hid behind a rock.

While at
his hidding place, P.W.3 noticed the accused dragging away the
deceased by the leg about 7 paces (indicated) away from
where he was
hidding. As ho dragged the deceased passed where he (P.W.3) was
hidding, the accused called out "Hey, man come
out and let us
go". P.W.3 then left his hidding place and followed the accused
who was still pulling the deceased. He could
see blood jetting up
from the deceased and making sound as it dropped to the ground. The
blood was making a trial behind the deceased
as he was dragged away
by the accused. The deceased was pulled to a place called Masaleng
where "malothoane" bushes were
growing.

7

He was
making no sound of any sort as he was being pulled away. At Masaleng,
the accused threw the deceased over the cliffs. The
heights of the
cliffs at the bottom of which the deceased was stabbed and over which
he was thrown were about 12 feet. After the
deceased hod been thrown
over the cliffs at Masaleng, P.W.3 and the accused left and proceeded
to a nearby dam into which the letter
threw the tennis shoes which
the deceased had been wearing. Accused produced the shoes from the
pockets of his overcoat. Alter
throwing deceased's shoes into the
water,accused washed his sharpened iron rod. Whilst washing the
sharpened iron rod, the accused
told P.W.3 not to mention what had
happened to anybody. He agreed. They then returned home.

On the
way back home, P.W.3 noticed that apart from his sharpened iron rod,
the accused was still carrying the tin which he had
seen him placing
on the ground at the place where the deceased was stabbed. The tin
had a lid on and he could not personally see
what it contained but
the accused told him that it contained the flesh of the deceased.
Back at home the accused placed the tin
at the kraal and warned him
not to play near it. They then went to their house to sleep. I shall
return to his evidence in a moment.

As has
boon pointed out earlier, P.W.3 is not only a young child but a
declared accomplice witness whose evidence must be treated
with great
scrutiny and I am not prepared to accept it save where it has been
corroborated by evidence aliunde of a more reliable
nature.

It may,
however, be pointed out that P.W.3 was in the witness box for 3 days
of which 2 were devoted to strenuous cross-examination.
Although at
the beginning of his evidence, he impressed me as an intellegent
witness he clearly broke down towards the end and
started saying
things that I considered senseless or incredible. Thus, for example,
I found it incredible that as the accused pulled
the deceased away by
the leg, P.W.3 could have seen blood jetting up from the deceased and
making sound as it dropped to the ground.
P.W.3 had probably heard
that when the

8

body of
the deceased was found it had been castrated. He then imagined that
the deceased had a large wound on the region of his
genital organs
and a lot of blood came out from the wound. It may be true that a lot
of blood came out from the deceased's wound,
but the suggestion that
the blood was jetting up and making sound as it dropped to the ground
is in my view nothing but the product
of P.W.3's fertile imagination
which I am not prepared to accept.

As it
will be seen later in this judgment, PW.3 later took PW.13 D/Tpr.
Seboka, and other police officers to the top of Maqhaka
mountain
where he showed them a number of places including the spot where the
deceased's shoes were thrown in the dam. This was
confirmed by P.W.13
who told the court that he was a member of the swimming team in the
police force. He and other police swimmers
got into the dam and
searched the spot pointed out by PW.3 as the spot where the accused
had thrown the deceased's shoes. It was
in the course of their search
that they found one of the tennis shoes which was identified by PW.9,
'Mathuso Mokhachane, the mother
of the deceased, as one of the shoes
that the deceased had been wearing on the evening in question. She
said the shoes were in
fact her own property. On the early evening of
31st December, 1982 the deceased had come home with P.W.8 and Molefi,
She served
them a meal after which they went to play with other
children. When they left the deceased was putting on her pair of
tennis shoes.
She actually allowed him to use that pair of tennis
shoes so as to spare his own pair of shoes for the following day
which was
a New Year's day. After he had left with P.W 8 and Molefi,
the deceased never returned home and the next day she started looking

for him but all in vain. She later learned that the dead body of her
son was found on the plateau of Maqhaka mountain.

The
evidence of P.W.13 further disclose that from the place where the
body of the deceased was found on top of Maqhaka mountain,
he noticed
a trail along which there were what appeared to be blood stains thus
suggesting that the deceased who was blooding was
pulled to the spot
where his dead body was found.

9

It may
well be true, therefore,that as P.W.3 testified,the deceased who was
bleeding was pulled to the spot where his dead body
was found and the
pair of shoes he was wearing on that evening was thrown into the
water.

Coming
back to his evidence, P.W.3 went on to say that in the morning which
was a New Year's day, he and the accused drove the animals
to the
veld for grazing. The accused, however, told him to return home for
his meal after which he returned to the accused when
the latter also
returned home. For the rest of the day he did not see the accused
until in the evening when he (P.W.3) returned
home with the animals.

Some days
later, the police came to his home when P.W.13 and other police
officers took him to Sefikeng police post where he was
interrogated
for many days. The interrogation was about his knowledge regarding
the death of the deacesed. At Sefikeng police post,
P.W.3 stayed at
the residence of one of the police woman and he was not tortured or
illtreated in any way. He initially denied
any knowledge about the
death of the deceased because the accused had instructed him not to
tell anybody what had happened. He,
however, eventually decided to
tell the truth which was what he had told the court. After he had
decided to tell the truth to the
police, he took them to Maqhaka
mountain where he showed them the various places he talked about in
his evidence including the
dam into which the deceased's shoes were
thrown. One of the shoes was actually found in the dam by the police
in his presence.

That the
accused was, at the relevant time, contemp­lating to kill a
person was disclosed by P.W.1, Tom Andreas Phatsoane, who
testified
that on 23rd December, 1982, he was sitting on a hillock next to his
village at Maqhaka when the accused came to him
and they started
chatting. In the course of their chat, the accused asked him what he
would use as medicine to strengthen himself.
In reply P.W.1 told the
accused that he would use a water snake known as "Tlhoare".
Accused told him that the water snake
"Tlhoare" had no
power and could not be used as medicine to strenthen a person. P.W.1
then asked the accused what

10

he would
use as medicine to strengthen himself. The accused told him that he
would use the blood of a human being. The accused encouraged
him that
they should strengthen themselves so as to become real men. He
mentioned that ho had in fact once killed a person at a
place called
Qalaheng in the area of Makatane and on the instructions of his
doctor who lived at Molelle's took blood and fat from
that person.
Accused then suggested to P.W.1 that on Christmas eve, which was the
following day, he should assist him to kill a
person and if he (PW.1)
agreed, he (accused) would protect his home against witchcraft so
that no witches could harm his family.
P.W.1 agreed and promised to
assist the accused to kill a person as suggested. However, when on
the following day he met the accused,
P.W.1 told him that he had had
a bad sleep. He said he had dreamed about some of his dead relatives
who threatened to kill him
if he went on with the plan to kill a
person. However, he told the court that he had in fact not had any
such dream. It was only
a story he had invented in order to avoid
doing what he had promised to do with the accused.

After
PW.1 had informed the accused about the dream, the latter advised him
to wait for a week and if the same dream did not come
back he should
then know that it was only the work of witches who were trying to
interfer with what they had planned to do. They
then agreed that
their next meeting would be on Friday of the following week which
would be the New Year's eve.

On
Friday, 31st December, 1982, P.W.1 was, however, still not prepared
to go on with the execution of the plan. In the evening of
that day
he told his mother, one 'Malebohang Phatsoane, that if the accused
came looking for him she should inform him that he
(PW.1) was not in.
PW.1 then went into the hut used as his bedroom. At about 7 p.m.
whilst he was in that hut he heard the accused
talking outside. The
accused was inquiring about his whereabouts and 'Malebohang told him
that he (PW.1) was not in. The accused
then left and he (PW.1) slept.

On the
following morning, 1st January, 1983, PW.1 did not meet the accused.
He, however, learned that the

11

deceased
had disappeared from the village and his dead body-was later found on
the plateau of Maqhaka mountain.

Accused
told the court that the evidence of both a PW.1 and PW.3 was nothing
but a pack of lies. In particular he denied to have
had a chat with
PW.1 during which he planned to kill a person. He also denied PW.3's
story about going to Maqhaka mountain and
said on New Year's eve 1982
he had gone to a place called Ramoseeka.

I must
say I find it rather strange that PW.3 (accused's own brother)
confirmed by PW.1 should fabricate a false story against the
accused
that on the evening of 31st December, 1982 he was planning to kill a
person. In my view, the probabilities are high that
PW.3 and PW.1
were testifying to the truth on this point and I am inclined to
accept their evidence. As has already been pointed
out the evidence
of PW.10, accused's own father was that on the evening in question
both PW.3 and the accused were not at home
until at about midnight.
He was positive, however, that in the morning they were still at home
and he even sent them to return
a saddle he had borrowed from another
person. According to PW.3, if accused went to Ramoseeka's, it must
have been during the day
on New Year's day after they had taken the
animals to the grazing lands and not during the night when he was
with him.

Accused
told the court that after the disappeance of the deceased and the
subsequent finding of his dead body, the police took him
to Sefikeng
where he was interrogated for several days about the death of the
deceased. He denied all knowledge about it. Whilst
at Sefikeng, the
police tortured him by not giving him food and insulting him. He was
not given food for ten days. He was only
allowed to drink water from
a tap and while going for water at the tap he used to steal peaches.
He was sleeping in a tent with
the police and one night he pretended
as though he was chasing away a dog when he managed to escape and
return home.

According
to P.W.13,D/Sgt Seboka, on 3/1/83, he received a report following
which he proceeded to the top of Maqhaka mountain where
he found a
group of men and a dead body which was identified to him as that of
the deceased.

12

The body
was lying in a pool of blood in a cove. He examined the body and
noticed that all its genital organs i.e. the penis, scrotum
and the
testicles were all missing. The body had several contusion all over.
It had blisters due to its advance stage of decomposition.
He could
see what appeared to be a stab wound on the chest of the deceased. He
had the body carried next to the main road from
where it was
transported to the mortuary at the Government hospital in Maseru
where a post mortem examination was performed by
P.W.2. The body
sustained no additional injuries whilst it was being conveyed from
the mountain to the mortuary.

P.W.13
conceded that he subsequently took the accused to Sefikeng where he
was interrogated about the death of the deceased. He,
however, denied
that the accused was ill-treated in any manner. On the contrary the
accused was well treated. He slept in the same
tent with police and
was served the same food that the police officers were eating at
their camp. Although he initially did not
give satisfactory replies
to the policed questions about the death of the deceased, the accused
eventually did give satisfactory
explanation. On the night preceeding
the day on which he was to be taken before a magistrate for remand,
the accused pretended
to be going to a toilet when he escaped. He
was, however, subsequently traced, arrested and brought before a
magistrate.

P.W.13
also confirmed the evidence of P.W.3 that while he was with the
police at Sefikeng he took him and the other police officers
to
Maqhaka mountain where he showed them various places including the
dam into which he said the deceaseds shoes were thrown. One
of the
shoes was found in the dam during the search carried out by himself
and other police officers. Later on, the accused also
took him to the
top of Maqhaka mountain and showed him the same places as P.W.3 had
shown him.

The
accused denied to have ever taken P.W.13 and other police officers to
the mountain. He however, confirmed the evidence of P.W.13
that
whilst in the police

13

custody
he agreed that he could show the police the penis of the deceased
which he had hidden in the house of his elder brother
PW.6, Tseliso
Thebe. He actually went with the police to the house of PW.6 in whose
presence he took out from the roofs a piece
of flesh which he told
the police was the penis of the deceased. This was confirmed by
P.W.11 Motsoafa Namantja, the chief's representative
who had
accompanied the police officers when the accused was taking them to
the house of P.W.6. It was also confirmed by P.W.6
himself who told
the court that he had just lost his wife and he broke into tears when
he realised that the penis of the deceased
had been hidden in his
house whilst the body of his late wife was lying in that same house.
He considered it disgusting that such
a thing should have happened.

P.W.13
said after he had taken from the roofs of P.W.6's house a piece of
flesh which he said was the penis of the deceased, the
accused handed
it to the police. The piece of flesh was then taken and sent under
the seal of the Commissioner of Police to the
Forensic laboratory in
Johannesburg, by the police, for analysis.

P.W.4,
Captain Welm Qelofse confirmed that she received from Lesotho Police
a parcel containing a piece of flesh. She subjected
it to expert
examination and from the kind of curls of the hair that was growing
on it, she was positive that the piece of flesh
was from the pubic
region of a human being. She was positive that it was not a piece of
the flesh of an animal. She handed it in
as Exh. 1.

The
accused confirmed that Exh. 1 was the seme piece of flesh that he had
handed to the police. He, however,said although ho had
told the
police that Exh.1 was part of the private parts of the deceased, the
truth was that the piece of flesh (Exh 1) he showed
to the police in
P.W,6's house was not the private parts of the deceased, it was a
piece of flesh of a wild animal known as "tatai".
He had
hunted and killed that animal with a certain Mohlouoa at the cattle
post in 1982. He did not,however,

14

know the
surname of Mohlouoa, Mohlouoa was a grown up person and not a boy.
The animal"Tatai"was known only by those people
who like
himself had been to a circumscision school or were traditional
doctors. After killing the animal he and Mohlouoa cut pieces
of its
flesh for making medicine which was to be administered on their
cattle so that they could go home on their own. He carried
his piece
of "Tatai" flesh very carefully on his person day and night
so that it might not be eaten by dogs or mixed
with the meat of other
animals at the cattle post. He was sleeping with it and as he was not
using pyjamas at night he at times
found that the "Tatai"
piece of flesh had clued on to his pubic hair region of his body and
some of his pubic hairs got
stuck to it. When he returned home from
the cattle post, he contained his piece of "Tatai" flesh in
a tin. On arrival
at home he took the piece of "Tatai"
flesh from the tin, wrapped it in a piece of paper and concealed it
on the roofs
in P.W.6's bedroom from where he took it on the day he
went with the police to P.W.6's house. He handed the "Tatai"
flesh
to the police. He assured the court that "Tatai" was
not a monkey. It was an animal resembling a pig by its long hair
that
was growing straight. He said the reason why he told the police that
"Tatai" flesh was part of the private parts
of the deceased
was because the police were torturing him by denying him food and
insulting him. He wanted to be released so that
he could go home and
get food. When he was at P,W,6's house, he repeated that Exh. 1 was
the penis or part of the private parts
of the deceased because he had
already committed himself while at Sefikeng police station. The
accused told the court that there
was no truth in the evidence of
P.W.4 that Exh, 1 was a piece of the flesh of a human being from the
pubic region.

It is
worth noting that the point that the piece of flesh (Exh. I) was
portion of the flesh of an animal called "Tatai"
killed by
the accused and one Mohlouoa at the cattle post was raised for the
first time during the defence case and after the crown
had closed its
case. I personally do not know of an animal called "tatai"
and none of my assessors

15

have ever
heard of it. However, the fact that we do not know of an animal
called "Tatai" cannot be proof that it does
not exist. I
may well be true that we do not know "Tatai" because none
of us has been to a circumcision school or is
a traditional doctor.

The court
took the view that whether or not "Tatai" existed could
have an important bearing for a just decision in this
case. After the
close of the defence case, the court directed, therefore, that a
Mohlouoa who could have stayed with the accused
at the cattle posts
be called to testify in this case.

C.W.1,
Mohlouoa Sehloho, testified that he was

58 years
old. He had been to a circumcision school but was not a traditional
doctor. He knew the accused with whom he stayed at
the same cattle
post about 3 years ago i.e. 1981. He had, however, never hunted a
wild animal called "Tatai" or any animal
at all with the
accused while they stayed at their cattle post. He in fact did not
know of an animal called "Tatai" and
was hearing of it for
the first time. He denied that he and the accused had ever killed any
such animal and cut its pieces of flesh
for purposes of making
medicine to be administered on cattle so that they could go home on
their own.

On behalf
of the accused,counsel for the defence told the court that although
the accused conceded that he had stayed with C.W.1
at the same cattle
post that was in 1980. There was another Mohlouoa (not C.W.1) with
whom he hunted the "Tatai" in 1982.
That other Mohlouoa
stayed in a neighbouring cattle post and if he were allowed to go
with the police he could find him. The court
allowed the accused to
go with the police to find Mohlouoa he was talking about and if any
such person was found, he would be called
as a witness by the court.
For that reason, the hearing was postponed for 3 days.

When the
hearing resumed after 3 days, the court was told from the bar that
Mohlouoa mentioned by the accused was not available.
The court then
called C.W.2 D/Lt. II Letsunyane who testified on oath that on 19th
May, 1984 he and other police officers met the
accused at the Central

16

Prison in
Maseru and left in a police vehicle for Mapoteng police station where
they were to spent the night on their way to the
cattle posts where
the accused had said he would find Mohlouoa. The accused was
accompanied by one of the prison officers. The
party spent the night
at Mapoteng police station.

On the
following morning, the accused was served his breakfast by the prison
officer. When the party was preparing to leave for
the cattle post
that morning, the prison officer who accompanied the accused told
C.W.2 that the accused wished to say something
to him. C.W.2 then
called together the officer commanding police at Mapoteng, the
Headman of Mapoteng village, all the police officers
who were going
in the company of the accused, the prison officer and the accused
himself. In the presence of all those people,
the accused said the
following words:

"It is better that we return here because I have deceived my
attorney and the court that there is a person called Mohlouoa
who
could be found at the cattle posts. What I have said was a lie and
the best thing is that we return to Maseru."

The
police officers tried to pursuade the accused that they should at
least go as far as the cattle posts so that he could show
them the
neighbouring cattle post he had mentioned but the accused said he
would be troubling them for nothing because after all
he knew for
certainty that there were no more animals at the cattle posts at that
time of the year.

The
police then gave up and returned with the accused to the Central
Prison in Maseru.

Considering
the evidence of C.W.1 and C.W.2, there is no doubt in my mind that
the accused's story that there was a wild animal
called "Tatai"
is false. Accused's story that the piece of flesh, Exh 1, is that
of"Tatai" is equally false
and the truth lies in the
evidence of P.W.4 that Exh 1 is a piece of the flesh of a human being
from the pubic region.

17

The
salient question is where did the accused get Exh 1 from. The answer
to this question, in my view, revolves on the evidence
of the next
witness i.e. PW.5, Ntja Mohapi, considered together with the evidence
of PW.1 that the accused had asked him to assist
him to kill a person
on Friday 31st December, 1982; the evidence of PW.3 that on the same
evening of Friday 31st December, 1982,
the accused told him that he
wanted a person he could mutilate and subsequently instructed him to
go and call the deceased, inter
alia, with whom they proceeded to the
top of Maqhaka mountain, the evidence of PW. 13 that when it was
found at Maqhaka mountain
the body of the deceased had its genital
organs missing and that while at Sefikeng police station, the accused
said he could take
the police where he would show them the penis of
the deceased; the evidence of P.W.13 supported by that of P.W.6 and
P.W.11 that
the accused said Exh 1 was the penis of the deceased; the
evidence of P.W.4 that Exh 1 was in fact a piece of human flesh from
the pubic region and the evidence of P.W.2 that the genital organs of
the deceased had in fact been cut away with a sharp instrument.

The
evidence of P.W.5, Ntja Mohapi was that he lived at Ramoseeka and the
accused was the son of his paternal aunt. Accused used
to visit his
home. In February, 1983 he was on leave from his place of work in the
Republic of South Africa, when one day at about
8p.m. the accused
came to his house. On his arrival the accused told him that he had
escaped from the police custody at Sefikeng
where he had been kept
under arrest following his killing of the deceased. He had killed the
deceased because he wanted to prepare
his medicines. While at
Sefikeng, he had pretented to be going to a toilet and then managed
to escape and go home. When he approached
his parental home he heard
the report of a gun and decided to come to his (PW.5's)home. Because
of what the accused said he had
done, P.W.5 was not happy to have him
at his house and so he told him that it would be better that he left
the place.

18

If the
accused had not killed the deceased and only because of the police
torture said he had and Exh. 1 was part of the private
parts of the
deceased, I am unable to find a convincing reason why he told PW.5
that he had killed the deceased for purposes of
preparing his
medicines. He was then away from the police and there was, therefore,
nothing compelling him to deceive PW.5 who
is his cousin.

Taking
the evidence as a whole I am convinced that the only reasonable
inference to be drawn is that the accused is the person who
castrated
the deceased and Exh.1 is part of the deceased's genital organs which
the accused had removed. That answers the question,where
did the
accused get Exh 1 from. Whether when he was thus castrated the
deceased had accidentally fallen or had been deliberately
pushed over
the cliffs is really immaterial for according to PW.2's evidence
which I have accepted, the deceased died as a result
of castration
which was effected while he was still alive. From the evidence of
PW.1, PW.3 and PW.5 I am satisfied that the accused
had premeditated
and planned the killing of the deceased,when he killed the deceased
he, therefore, had the requisite subjective
intention.

Moreover,
it seems to me that accused's statement to PW.5 that he had been
arrested following his killing of the deceased amounted
to a
confession. In terms of the provisions of Section 228(1) of the
Criminal Procedure and Evidence Act, 1981,

"Any confession of the commission of any offence shall, if such
confession is proved by competent evidence to have been made
by any
person, accused of such offence (whether before or after his
apprehension and whether on a judicial examination or after

commitment and whe­ther reduced into writing or not), be
admissible in evidence against such person provided the confession
is
proved to have been freely and voluntarily made by such person in his
sound and sober senses and without having been unduly
influenced
thereto."

PW.5 has
testified on oath that on his own accord the accused came to his
house and made the confession.

19

I have no
reason to doubt that the evidence of PW.5 is competent evidence
proving that the accused made the confession to him. According
to
PW.5's evidence which again I have no reason to disbelieve, the
accused freely and voluntarily told him that he had killed the

deceased in order to prepare his medicines. There was no suggestion
that when he made the confession, the accused was not in his
sober
and sound senses nor can it be said that on the evidence the accused
was in any way compelled to make the confession.

The
accused denied to have come to PW.5's house and made the statement.
But I could find no convincing reason why PW.5, a cousin
of accused,
should fabricate against the accused on this point. It seems to me
that PW.5 was testifying to the truth and I accept
his evidence.

I come to
the conclusion,therefore, that in the circumstances of this case, the
confession is admissible evidence. Section 240(2)
of the Criminal
Procedure and Evidence Act, supra,provides .

"(2) Any court may convict a person of any offence alleged
against him in the charge by reason of any confession of that offence

proved to have been made by him. Although the confession is not
confirmed by any other evidence, provided the offence has, by
competent evidence other than the confession, been proved to have
been actually committed."

I have
already accepted the evidence of PW.2 that the deceased died of loss
of blood resulting from castration and multiple contusions.

Considering this and the evidence

as a
whole, there is not the slightest doubt in my mind that the deceased
was brutally assaulted on his private parts by the accused.
In
assaulting the deceased in the manner described by the evidence, the
accused was, no doubt, aware that his act was likely to
result in the
death of the deceased but acted reckless of whether or not death
occurred. Even if I were wrong therefore in holding
as I do the
accused had direct intention to kill, there can be no

20

doubt
that he had at least, the legal intention to kill. That, in my
opinion takes care of the proviso in section 240(2) of the
Criminal
Procedure and Evidence Act, supra. By and large, I am convinced that
on the evidence as a whole it has been established
beyond a
reasonable doubt that the accused has committed the offence against
which he is charged. In the circumstances, I have
no alternative but
to convict him of murder as charged.

Both my
assessors agree.

B.K.
MOLAI.

JUDGE.

4th June,
1984.

For the
Crown : Mr. Peete,

For the
Defence Mr. Ramolibeli.

EXTENUATING
CIRCUMSTANCES

The
accused has already been convicted of murder and the question which
now arises for decision is whether the crime committed by
the accused
was committed with extenuating circumstances or not. As Schreiner,
J.A. once put it in R. v. Fundakubi and Others,
1948(3) S.A. 810: In
deciding whether ther are extenuating circumstances in a case of
murder no factor not too remote or too faintly
or indirectly related
to the commission of the crime, which bears upon the accused's moral
blameworthmess in committing it, can
be ruled out from consideration.

With this
statement of the law on extenuating circumstances in mind, the Court
was invited to take into consideration two important
factors namely
that the accused was a traditional doctor who, in all probabilities,
had a firm belief in witchcraft, and his youthfulness.

In
support of the contention that a belief in witchcraft was a factor to
be properly considered in determining the existence or
not of
extenuating circumstances the Court was referred to the decision in
R. v. Fundakubi, supra and cases therein cited.

It must,
however, be observed that in those cases the murderers had been
actuated by their believes that their victims were practising

witchcraft by which they had caused the death of their near relatives
or families. In the present case there is, however, no evidence
that
the accused was actuated by the belief that his victim (the deceased)
was practising witchcraft by which he had or could have
caused harm
to the accused himself or his family. The faces in Fundakubi and
other decisions therein cited are, therefore, clearly
distinguishable
from the facts in the present case. That being so, it seems to me
that the decision in Rex v. Fundakubi and Others,
supra, is no
authority that extenuating circumstances exist even where a murderer
who believes in witchcraft kills an innocent
victim from whom he
suspects no harm. To hold the contrary would obviously have far
reaching repercussions.

Indeed,
as Schreiner, J.A. indicated at p. 819 of the above quoted decision:

"......... it should not be supposed that the existence

of a belief in witchcraft must necessarily and in all cases be
treated as an effective extenuating circumstance. The witchdoctor
who
"smells out" a victim, may escape responsibility for the
subsequent murder because it cannot be shown that he has
done more
than indicate the supposedly guilty person, without having instigated
any violent action against him; but where actual
incitement to murder
is brought home to the witchdoctor, it would not. I apprehend, be
right for the jury (or court) to find extenuating
circumstances in
his favour merely because it was found that he was a firm believer in
the dark craft practised by him."

As
regards his age, it was common cause that the accused was born on
13th March, 1963. At the time of the commission of the offence
on
31st December, 1982, he was, therefore, between 19 and 20 years old.
He did not fall within the ambit of the provisions of Section
297(2)
(b) of the Criminal Procedure and Evidence Act, 1981 which reads as
follows:

"The High Court shall not pronounce a sentence of death by
hanging ....... against a person convicted of an offence punishable

by death if in the opinion of the High Court that person was, at the
time of the commission of the offence under the age of 18
years, but
shall instead sentence him to be detained during the King's pleasure,
and he shall be detained in such place and under
such conditions as
the King may direct, and whilst so detained shall be deemed to be in
lawful custody."

No doubt
a youth of between 19 and 20 years is not a child, yet he cannot
reasonably be expected to show the same stability of character,

responsibility and self-restraint as a fully mature man. The question
is whether youth alone is not a factor to be taken into account
for
purposes of determining the existence or not of extenuating
circumstances. In Rex v. Hugo 1940 W.L.D. 285 at p. 286 Schreiner,
J.
had this to say on the subject:

".......youth and extreme old age may be material in conjunction
with other factors.

Once,
however, you are dealing with an adult of normal faculty, the fact
that he is rather young or rather old can hardly be an
extenuating
circumstance.11

See also
p. 365 of the South African Criminal Law and Procedure (Vol. 11) by
Hunt where the learned author says:

"youth cannot be treated as an automatic extenuating
circumstance."

In the
light of the above cited authorities, it seems clear to me that where
the accused is not under the age of 18 years, the question
of his
youth is relevant as extenuating circumstance only when it exists in
conjunction with another factor or other factors. On
the evidence
adduced before this Court in the instant case I am unable to find any
other factors taken in conjunction with which
the youthfulness of the
accused can be regarded as extenuating circumstance.

I come to
the conclusion, therefore, that there are no extenuating
circumstances and the proper verdict is that of guilty of murder
with
no extenuating circumstances.

The
accused shall be returned to the custody and be hanged by the neck
until he is dead.

My
assessors agree.

JUDGE.

8th June,
1984.

For the
Crown : Mr. Peete

For the
Accused : Mr. Ramolibeli.