C. of A.
(CRI) No. 8-10 of 1979

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

SELLO LEHPHANE 1st Appellant

NTSANE MPHAHAMA 2nd Appellant

MOKALANYANE MOKALANYANE 3rd Appellant

and

THE KING Respondent

HELD AT
MASERU

Coram:

MAISELS,
P.

DENDY
YOUNG, A.J.A.

SCHUTZ,
A.J.A.

JUDGMENT

Dendy
Young, A.J.A.

The three
appellants were charged firstly with the murder of one Monyake
Hlalele (hereinafter called the deceased) on the 17th day
of
September, 1977 at or near Mekateng - Lower Qeme in the district of
Maseru; secondly with the crime of Housebreaking with intent
to steal
and theft at or near Mekateng - Lower Qeme in the Maseru district. It
is alleged that on the same day they broke into
Fraser's shop Limited
(herein­after referred to as the shop) and stole the property
listed in the indictment as amended.

The
appellants pleaded not guilty to both counts. They were however
convicted on both counts and sentenced : on Count one each was

sentenced to death, on Count 2 accused 1 was sentenced to 8 years'
imprison­ment appellants 2 and 3 to six years' imprisonment
each.

They have
now appealed against conviction and sentence on both counts. In point
of fact the appeal has

2

not been
pursued in respect of count two. The contest in the appeal relates to
count 1 only. It is argued for the appellants that
the Crown failed
to prove intent to kill and that the correct finding should have been
guilty of culpable homicide. Alternatively
if there was in law an
intent to kill the proper verdict was murder with extenuating
circumstances. The finding that the appellants
unlawfully killed the
deceased is not challenged.

The main
pillar of the Crown's case was the evidence of the accomplice (Botsi
Shakhane) which was in skeleton as follows : On the
evening of the
17th September 1977 the three appellants together with the accomplice
set out with the common objective of gaining
access to the shop and
stealing money therefrom. It appears that the scheme was to force the
manageress of the shop to co-operate
with them in getting hold of the
money. However they found her already back in her home with the doors
locked. This caused a change
of plan. The four thieves, as I shall
call them, so as to include the accomplice, decided to break into the
shop. But first the
nightwatchman had to be dealt with to prevent his
raising the alarm. They waylaid the deceaseds overpowered him and
carried him
struggling and shouting to a spot some 100 yards outside
the village. There was much noise being made in the village that
night
due to singing and the beating of drums related to the presence
in the village of diviners and no one heard or heeded the deceased's

shouts. By the time the thieves reached the spot, deceased had for
some reason ceased to shout but was apparently still resisting.
The
four thieves pinned the deceased down on the ground and the first
appellant tied him up with copper wire brought along by the
first
appellant for just such an eventuality. Having tied up the deceased
the thieves left him lying down and then went on to break
into the
shop. Large bundles of goods were taken from the shop and carried
away.

The
deceased died that night and his body was found next morning still
tied up. It will be convenient

3

at this
point to introduce another pillar of the Crown case, namely, the
medical evidence. A post-mortem exami­nation was carried
out on
the 20th of September 1977. The schedule of observations in the
doctor's report reads as follows :

"External Appearances (5) Copper wire twisted. extremely tightly
around neck, running from there over the back to the wrists
of both
arms, that were bent on the back. The wire was tied so many times
that it was impossible to untie them without help from
outsiders:
Around the ankles there was the same copper wire also tied extremely
well. A small wound on the left car, bruise on
the occiput.

Age of deceased: Apparent 45 - 50 Reputed 42

Skull and its contents (10) Subconjunctival bleeding in left eye, the
head was extremely congested."

No other
observations were made. In a sketch attached to his report the doctor
shows a single loop of wire round the neck of the
deceased with the
end extending down the back and attached to another piece of wire
securing the wrists. The ankles were tied with
a third piece of wire.
The medical report concludes that death was due to asphyxia due to
strangulation and under "Remarks"
the report has this –

"The victim was strangulated by means of copper wire. This wire
was buried in the skin since it was tied with great force
(only at
one place I could push my little finger between wire and skin). The
way this was done makes it very likely that more than
one murderer
was involved".

Incidentally
the doctor in evidence retracted the word 'murderer'.

In
evidence the doctor said he inferred from the fact that there was
little or no swelling of the feet that deceased had died within
a few
minutes. Asked to indicate how the wire was tied round the neck the
doctor said :

4

"It was just a sort of a loop around the neck which went down to
the hands and it was tied there and the hands were also tied
with
another piece of wire.".

The
doctor did not know how many times the wire was wound round the neck.
Me had not made a note on that point. Asked whether the
strangulation
could have been due to deceased's efforts to loosen the wire the
doctor replied:

"No. He had no chance to loosen anything. It was so tight."

Unfortunately
the medical evidence leaves unexplained certain important features
relating to the mechanism of death. In the first
place it does not
explain whether death was due to obstruction of the air passage or to
cardiac arrest by compression of the carotid
sinus. Then again it
leaves unexplained the function (if any) of the attachment of the
wire to the neck and from there to the wrists
behind the back; that
is to say whether or not the fatal constriction of the neck could
have resulted from the deceased's own struggle
to free himself. This
nutter was of importance because it seems clear that the thieves did
not desire the death of the deceased.
Otherwise why the trouble of
taking him away from the village and why the laborious process of
tying him up. It would have been
much simpler to have killed him out
of hand, had death been intended. The wire around the neck was
obviously intended to have some
function: probably to prevent the
deceased shouting for help but that conclusion suggests that it was
not the intention to kill
him. This point was seized upon by Mr. Kuny
who appeared for the appellants and it formed the basis for his
contention that the
Crown had not established beyond reasonable doubt
the intention to kill.

Reverting
now to the account given by the accomplice. Right at the spot outside
the village where the deceased was being constrained,
a discussion
took place as to what was to be done about him. The accomplice and
appellant 3 were in favour of leaving two of the
number

5

to guard
the deceased whilst the remaining two broke into the shop. On the
other hand appellants Nos. 1 and 2 were for tying him
up. Appellant
No.l produced the copper wire he had brought with him and, the other
three helping to hold down the deceased, appellant
No.l tied him up
in the manner described in the medical report. Deceased resisted. The
accomplice saw how he was tied. He says
the deceased continued to
struggle; he was kicking; but it appeared to the accomplice that the
deceased was suffocating.

The
following extracts from the evidence of the accomplice reflect what
he observed

"You now saw that he had tied wire around the guard's neck and
that the guard was choking? - That is so My Lord. I asked Sello
why
ho was choking that man.

C.C. Yes? - He then asked me who I wanted to have died. I said this
person would die and he said that doesn't matter, Ntsane also
said
the same thing.

What eventually happened? - We then went to the shop, H.L. Did you
leave this man there? - That is so.

C.C. What was the man doing when you left him? -I saw as if he was
already dead".

The
accomplice went on to say that the housebreaking and theft was then
carried out. His evidence continues :

"Then
after you had then removed these goods what did you then do? - We
rested after we had come out of the shop.

Yes, all
of you? - Yes.

While you
were resting did you have any, did you talk to each other? - Yes.

Yes, who
talked to who? - I said to them, we should go and see if that person
has not died.

Then what
was their response? - They refused. All of them? - That is so.

And what
did you then do? - I went alone and left them there.

6

Proceed?
- When I got to that person I found that he was dead.

What did
you do then? –

H.L. When you got to this person what did you do? Did you light him
with a torch, did you touch him? - I lit him with a torch My
Lord.

Yes? - I said are you still alive. I repeated that four times. I
found that he was dead.

I want to know how did you find out that he was dead because he
didn't reply to your questions? - I was afraid to touch him but
he
was not making any movement at all.

C.C. Then? - I went back to my fellow men. I told them I found that
person having died. Sello replied me.

Can you tell the court what he said to you? - He said it was not his
first tine to kill a person.

H.L. When you returned from the body? - That is so My Lord.

C.C. After that what did each one of you do? - We left from there and
went on our way.

Did you leave together or did you at any stage part with any of the
accused? - When we left there we left Mtsane still struggling
with
his bundle.

Then? - I asked Sello why it was that he killed a person so cruelly".

Within a
week or so the police had traced the goods stolen from the shop to
the four thieves and they were arrested. At the trial
the three
appellants gave evidence on oath. They denied all knowledge of the
events that night. However the evidence that the three
appellants and
the accomplice were the culprits was overwhelming and the learned
trial Judge go found. This finding has not been
questioned on appeal.

On the
murder count the learned Judge found a common purpose on the part of
the thieves to assault the deceased by overpowering
him and tying him
up. He held that the method of tying the deceased was particularly
dangerous from the point of view of strangulation
he said:

7

"This dangerous type of assault must have been realised by the
others that it could have fatal results, (R. v. Lewis, 1958(3)
S.A.
107 (A.D.) at 189) yet they were reckless as to whether death would
ensure or not. I am of the view, therefore, that they
must have
foreseen that there was a possibility of accused 1 causing the death
of the deceased and yet despite the deceased's resistance
they pinned
him down and persisted in their plan reckless of the fatal
consequences.".

Incidentally
the case of R. v. Lewis is not in ay respectful view, a satisfactory
decision and should not be followed in this country:
compare S. v. du
Preez 1972(4) S.A. 504. However on the view I take of this case it is
not necessary to pursue this matter further.

Later in
his judgment the Judge said:

"I am quite aware, and have already cited an authority that the
test is whether each socius criminis foresaw the possibility
that his
socius" would commit the act in question in the prosecution of
their common purpose. (See S. v. Malinga and others,
(supra) p. 264)
. In my view, the accused foresaw this possibility and were reckless
whether death resulted or not."

It will
be seen, therefore, that the learned Judge negatived a direct
intention to kill but found what is called dolus eventualis.

Before
this Court Mr. Mdhluli for the Crown contended that the learned trial
Judge had been over-generous to the appellants and
that the evidence
established a direct intention on the part of each appellant to kill
the deceased.

On the
other hand Mr. Kuny, as already stated, argued that, short of knowing
what caused the constriction of the neck and the mechanism
of death,
it was not possible to say which, if any, of the appellants
subjecti­vely realised the danger to life.

In my
view it is unnecessary to determine whether during or immediately
after the tying up operation, the minds of all three of
the
appellants adverted to the danger to the life of the deceased
involved in the method adopted

8

to
prevent him from calling for help. If the evidence of the accomplice
is accepted then there is in ray view, no reason to think
that the
virtually immediate distress of the deceased was not apparent to all
of the thieves.

If they
did not realise the danger before or during the tying up operation
they realised the danger immediatelyafterwards. Yet the
attitude of
mind was one of callous disregard of the possible consequences to the
life of the deceased. To them the possible death
of the deceased was
irrelevant when weighed against the attainment of their immediate
objective which was to break into the shop.

In my
judgment this attitude of mind provided the necessary dolus i.e. the
intention to kill for the purposes of the crime of murder.

I have
anxiously considered whether the evidence of the accomplice in regard
to the distress signs exhibited by the deceased can
properly be
relied upon having regard to the natural suspicion attaching to the
evidence of an accomplice. However the learned
trial Judge was fully
alive to this aspect of the case. Me accepted the evidence of the
accomplice. In his judgment he said:

"I am satisfied that the evidence of the accomplice was by far
superior to that of the accused who lied unashamedly. (Rex
v.
Nakanana and Others, 1971-73 L.L.R. p. 122 at 128). They even lied
against their own counsel. I am satisfied with the evidence
of the
accomplice* He was not shifty and restless like the accused I am
convinced that he endeavoured to tell the court the truth.
I am
fortified in coming to this conclusion because his evidence does not
stand alone. It has been corroborated; not by just mere
corroboration
but corroboration which implicates the accused.".

It is
true that the corroboration the Judge had in mind related to the
housebreaking and theft and not to the signs of distress
on the part
of the deceased. However some corroboration on the crucial aspect of
the distress exhibited by the deceased is to be
found in the medical
evidence which was to the effect that the deceased must have
suffocated to death within minutes.

On the
whole I am of the opinion that it cannot be said that the verdict of
murder against each of the three appellants by the trial
court is not
supported by the evidence

9

within
the meaning of section 3(1) of the Court of Appeal Act 1978. No other
ground of interference with the verdict has been suggested.

In my
judgment the appeal against conviction must be dismissed.

On the
question of extenuating circumstances, fir. Kuny submitted that there
was room for differentiation between the 1st appellant
who did the
tying up and the other two whose parts consisted in holding down the
deceased. Alternatively he said the case of appellant
No.3 was at any
rate distinguishable; he had shown reluctance to participate in the
proposal to tie up the deceased and this said
Mr. Kuny indicated a
lesser degree of moral blameworthiness. The appellants did not choose
to give evidence on extenuation. Although
it is not noted on the
record we were very properly informed by Mr. Kolisang who appeared
for the appellants in the court a quo
that the decision not to
testify was taken delibera­tely. On the evidence the three
appellants callously went off to steal
from the shop leaving the
deceased in his state of distress. The learned trial Judge was fully
alive to the features emphasised
by Mr. Kuny. There is no
misdirection on his part. In the circumstances I do not think that
this Court would be justified in interfering
with the sentence.

In my
judgment the appeals must be dismissed.

(Signed) J.R. Dendy Young

J.R. DENDY YOUNG

Acting Judge of Appeal.

Delivered
on the 10th day of Januarys 1980 at MASERU.