CRI/T/10/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

LESOLE
MASHALE. THABO MOSUOE MOSUOE MOSUOE

JUDGMENT

Delivered
by the Hon. Mr. Justice B. K. Molai on the 12th day of December,
1985.

The
accused are before me on a charge of murdering one Ranford Lehloaea,
it being alleged that on or about 28th October, 1984 and
at or near
Ha Toka in the district of Thaba Tseka they unlawfully and
intentionally killed the deceased. They have all pleaded
not guilty
to the charge.

At the
start of this trial Dr. Tsotsi who repre­sented the accused
intimated that the defence admitted the depositions of Qetelang

Likhama and D/Tpr Mongaula who were respectively P.W.2 and P.W.9 at
the proceedings of Preparatory Examination. Mrs Bosiu,Counsel
for the
Crown did not dispute the admissions and the depositions of Qetelang
Likhama and D/Tpr. Mongaula were accordingly accepted
in evidence in
terms of the provisions of S.273 of the Criminal Procedure and
Evidence Act, 1981. It became unnecessary, therefore,
to call the
deponents as witnesses in this trial.

It is
perhaps useful to mention by way of a background to this case that it
would appear a certain woman by the name of 'Maboitelo
owned a
business site at the village of Ha Toka in the area of Mantsonyane.
She had erected a building on the site. On portion
of the building
was hired and used as a restaurant by P. W. 4, Geoffrey Motholo, and
P. W. 5, 'Makarabelo Motholo,

2

(husband
and wife). The other portion of the building was used as a cafe by
'Maboitelo herself and the deceased.

It is not
very clear whether the deceased was an employee of 'Maboitelo or he
operated the cafe business in partnership with her.
That is, however,
not so important for the decision in this matter. What is important
is that after the death of 'Maboitelo in
1983, the deceased remained
trading alone at the cafe. Accused 3, a relative of the late
'Maboitelo then claimed that by the arrangement
of his family he had
inherited the cafe and wanted the deceased to vacate the place so
that he (accused 3) could run the cafe.
The deceased resisted the
move and that resulted in bitterness between him and accused 3. This
is evidenced by Exhibit C according
to which Accused 3 and 2 were, on
15th June, 1984, restrained by Thaba-Tseka Subordinate Court from
interfering in the business
of the deceased and Exhibit I a charge
sheet according to which the deceased and another were, on 16th
October, 1984,con-victed
of assaulting accused 3 with a stick and
pointing firearm at him.

It is
against this background that in as far as it is material, P.W.2,
('Mamotjoka Matekane, told the Court that she was at all
material
times employed by the deceased as a shop assistant at the cafe. On
28th October 1984, P.W.2 and the deceased were in the
cafe. The
deceased who was preparing to leave for Thaba-Tseka, was checking
money next to P.W.2 at the counter when the latter
noticed accused 1
entering into the cafe. Accused 1 who is a street preacher and a
relative of both accused 2 and 3 immediately
engaged in a discussion
with the deceased about biblical matters. He was about to refer the
deceased to a verse in the bible when
accused 2 also entered into the
cafe. Shortly after accused 2 had entered into the cafe accused 3
also came in and greeted.

As soon
as he noticed accused 3, the deceased stood up but accused 1 suddenly
produced a long knife with which he delivered a blow
at the deceased
across the counter. P.W.2 did not see if the blow actually landed on
the deceased for there was then a commotion.
The

3

The
deceased was running into an adjacent room used as his bedroom while
the three accused hotly pursued him into the room. She
could see that
apart from the knife, accused 1 had a yellowish screw driver in the
hind pocket of his trousers. As she had seen
accused 3 closing the
door, P.W.2 also ran into the bedroom intending to escape through
another door leading outside from the bedroom.
When she appeared at
the door of the bedroom, P.W.2 could see accused 2 hitting the
deceased with a stick and accused 1 stabbing
him with the yellow
screw driver.

When he
noticed her entering the bedroom, accused 3 rushed at P.W.2 holding
up a knife. P.W.2 turned back and ran towards the door
of the main
entrance of the cafe. As he came running after her, P.W.2 could hear
accused 3 saying :"stab him and cut his throat".
She found
that accused 3 had in fact merely closed the door and had not locked
it so that she was able to open and run outside.

After she
had escaped from the cafe P.W.2 ran to the restaurant and reported to
P.W.4, Geoffrey Motholo. She then went to a vehicle
which was waiting
at the bus stop and reported to the people therein what was happening
at the cafe. Some of those people actually
got out of the vehicle and
proceeded to the cafe. They were, however, stopped by accused 3 at
the door of the main entrance to
the cafe. He told them it was a
family fight and they need not involve themselves.

P.W.2
then rushed to the chief's place. She met D.W.4, 'Mathaabe Toka
Mojela, the Chieftainess of the area, on the way to her place
and
reported what was happen-ing at the cafe. (This is confirmed by D.W.4
herself). The chieftainess was not prepared to render
any assistance.
P.W.2 returned to the bus stop next to the cafe, found a vehicle
going in the direction of Marakabei Police station
and boarded it
together with P.W.4. They came to Marakabei police station where they
reported what the accused were doing to the
deceased at the cafe.
They returned with the Marakabei police to the cafe.

4

To the
inquiry of the police, P.W.5. Makarabelo Motholo informed them that
she had seen D.W.4 and a group of men going in the direction
towards
the centre of the village. The police officers went to look for D.W.4
in the village and later returned with her to the
cafe.

After the
police had entered into the cafe, P.W.2 and other people who had
gathered there also went into the cafe. She found the
deceased lying
dead in a pool of blood on the floor of the bedroom. The body of the
deceased was subsequently carried to the mortuary
at Mantsonyane
hospital. On the following day, 29th October, 1984, P.W.2 accompanied
the body of the deceased from Mantsonyane
hospital to Thaba-Tseka
hospital. The body sustained no additional injuries whilst it was
being transported.

P.W.2
told the court that she was one of the people who identified the body
of the deceased before the medical doctor who performed
the post
mortem exa­mination at Thaba-Tseka hospital.

According
to P.W.3, Thabo Molefi, he lived in the area of Lesobeng. He,
however, knew the deceased and accused 1 very well. On the
day in
question he was going to get a bus at Mantsonyane on his way to
Maseru. As he approached the bus stop next to the deceased's
cafe,
P.W.3 heard the screams of a man coming from the cafe. He also
noticed P.W.2 outside the cafe. She was screaming and clearly
calling
for help. P.W.3 then ran to the cafe.

As the
scream came from the room used by the deceased as his bedroom, P.W.3
went to the door of the bedroom and tried to open it
but found that
it was locked. He went to the window whose curtains were still open
and peeped inside. He clearly identified accused
1 and accused 2, who
was a stranger to him, assaulting the deceased in the bedroom.
Accused 1 was stabbing the deceased with a
screw driver while accused
2 was hitting him with a timber stick. As he was being assaulted, the
deceased had fallen on the bed
and was warding off the blows with his
bare hands. He was at the same time pleading: "Oh! people of God
do you really kill
me on a Sunday!" At that time P.W.3 heard
accused 1 saying: "Do you also know a prayer!"

5

P.W. 3
then rushed to the door of the main entrance to the cafe where a
large number of people, clearly trying to gain entrance
into the cafe
had gathered. He noticed a person standing at the door with a knife
in his hand and preventing people from going
into the cafe. He was
telling them "This is a family fight, stand away from it".
At that time P.W.3 noticed P.W.4 running
to the vehicle which was
waiting at the bus stop and inquiring the where­abouts of its
owner as he wanted to rush to the police
station. P.W.3, who was on a
journey,got the impression that the vehicle was about to leave and he
might be left behind. He, therefore,
rushed to the vehicle which
shortly thereafter pulled off for Maseru.

He
conceded that due to fright and the crowd of people who had gathered
at the door of the main entrance to the cafe he did not
have a good
opportunity to scruti­nize the man standing with a knife in his
hand at the door and would not, therefore, be in
a position to say
with certainty that it was accused 3. Well we now know and it will
become more and more clear in the course of
this judgment that
accused 3 was the person standing at the door to the main entrance of
the cafe.

P.W.4
confirmed the evidence of P.W.2 that on the morning of 28th October,
1984 he was in his restaurant when the latter came and
reported that
the three accused were killing the deceased in the cafe. He
immediately proceeded to the cafe portion of the building.
As he
passed next to the window of the deceased's bedroom on his way to the
door of the main entrance to the cafe P.W.4 heard a
person crying:
"jooe! Jooe!" inside the bedroom. He hurried to the main
entrance of the cafe where he found accused 3
standing at the door.
He was wearing a blanket and holding a knife in one of his hands. A
portion of what he considered a stick
clearly appeared below from
underneath the blanket. Accused 3 angrily told him that nobody would
enter into the cafe as that was
a family fight. He was obviously
ready to take immediate steps should P.W.4 try to persist in going
into the cafe.

6

P.W.4
decided not to do so. Instead he returned and ran to a vehicle which
was waiting at a nearby bus stop intending to ask the
driver thereof
to rush to the Police station. He in vain looked for the driver of
that vehicle. P.W.4 then ran to the chief's place
intending to report
what was happening at the cafe but on the way met P.W.2 who informed
him that she had already reported to D.W.4
who however, appeared
unconcerned. After asking one Seliane to go to D.W.4, P.W.4 returned
to the cafe. On the way he noticed accused
3 and a man in white
overalls walking in the direction from the cafe towards the chief's
place. The man in white overal was unknown
to him. He was carrying a
stick and the legs of his overall had red stains. When he noticed
him, accused 3 told P.W.4 that he too
should close down. By that,
P.W.4 understood accused 3 to mean that he should close his business
in the restaurant. However, his
wife (P.W.5) informed him that she
had already closed the door of the restaurant.

About 20
minutes later another vehicle going in the direction towards
Marakabei police station came to the bus stop and both P.W.4
and
P.W.2 left in that vehicle for the police station. They reported to
Marakabei police who immediately returned with them to
Mantsonyane.
He confirmed the evidence of P.W.2 that on arrival at the cafe the
police inquired the whereabouts of D.W.4 and P.W.5
informed them that
she had seen her going in the company of a group of men towards a
drinking place in the village. The police
went to look for D.W.4 in
the village and later returned with her to the cafe.

P.W.4 was
one of the people who entered the deceased's bedroom after the police
had come to the scene. He found the deceased dead
in the bedroom. He
noticed a pool of blood on the floor, blood stains on the walls, on
the bed and on the sheets. He accompanied
the body of the deceased
when it was being transported from the cafe to Mantsonyane hospital
and it sustained no further injuries.

The
evidence of both P.W.2 and P.W.4 is confirmed by P.W. 5, 'Makarabelo
Motholo, who told the court that

7

on the
day in question she was working in the kitchen while her husband,
P.W.4, was serving customers in the restaurant when she
heard P.W.2
desperately calling out the name of P.W.4. As her children had been
playing in the street outside the building and
there was a motor
cycle rally on that day P.W.5 had a thought that they might have been
involved in an accident. She was,therefore,
the first to jump out of
the restaurant and frantically inquire from P.W.2 what the matter
was. P.W.2 tearfully explained that
the accused were killing the
deceased in the cafe.

P.W.5
immediately raised an alarm to the people who were in the restaurant
and in a vehicle that was parked at the bus stop outside
the cafe. As
she did so P.W.5 could hear the voice of the deceased from the cafe
portion of the building. He was crying "jooe
they have killed
me".

In
respond to the alarm, many people from the res­taurant and the
vehicle that was waiting at the bus stop rushed to the cafe
and
crowded at the door of the main entrance. P.W.5 noticed that accused
3 was standing at the door holding an okapi knife in his
hand. She
heard him telling the crowd that no body would enter there as that
was a family fight. The crowd then started dispersing
indispair. She
noticed P.W.4 at the vehicle which was waiting at the bus stop. He
was inquiring the whereabouts of the driver clearly
with the
intention of boarding that vehicle. She called at him and advised
that he would better start at the chief's place. P.W.4
then left the
vehicle and rushed in the direction towards the chief's place.

After
P.W.4 had left, the vehicle also took off. P.W.5 then noticed accused
3 entering into the cafe and closing the door behind
him. Shortly
after, accused 3 opened the door and came out in the company of
accused 2 who was a stranger to the witness. Accused
2 was wearing
white overalls and clearly carrying a timber stick. Accused 2's
overalls had red stains. They closed the door and
took the direction
towards the chief's place.

8

P.W.5
then returned to the kitchen, switched off her gas cyllinder, closed
the door of the restaurant and went to stand outside.
It was whilst
she stood outside that she noticed accused 1 coming out of the cafe.
He was carrying a brown brief case with which
the deceased used to
take his money to the bank. P.W.5 went into the restaurant from where
she could watch where accused 1 was
going with the deceased's brief
case. She saw him going to the house where he and accused 3 stayed in
the village. Later on,she
saw accused 1 running back to the cafe. He
entered into the cafe and closed the door behind him. P.W.5 then went
out and leaned
at the restaurant's corner which is adjacent to the
room used by the deceased as his bedroom. From there she could hear
the deceased
making sounds of a person suffering with pain. Shortly
after accused 1 had entered into the cafe, the deceased stopped
groaning.

While
accused 1 was in the cafe, P.W.4 came back and stood where she was.
According to P.W.5, she then suggested to him to lock
the door of the
restaurant as he was intending to go to the police station and it was
P.W.4 and not herself who actually locked
the door.

It will
be remembered that P.W.4 had said it was P.W.5 and not himself who
had closed the door of the res­taurant. Their evidence
was
criticised on this apparent discrepancy. I say the discrepancy is
apparent because P.W.5 may have closed the door without locking
it.
If according to P.W.5 it was P.W.4 who actually locked the door which
she had already closed without locking, the discrepancy
in their
evidence is, in my view, apparent rather than real.

After
P.W.4 had locked the door, P.W.5 then saw accused 1 coming out of the
cafe and running across the road in the direction towards
the centre
of the village. Eventually another vehicle arrived at the bus stop
and P.W.4 and P.W.2 boarded it on their way to Marakabei
police
station. As to what happened when P.W.4 and 2 later returned with
Marakabei police the evidence of P.W.5 is almost identical
with that
of P.W.4 and P.W.2.

9

The three
accused also testified on oath before this Court. Their evidence's to
what happened at the cafe on the day in question
is slightly
different. Although they conceded to have come to the deceased's cafe
in the order described by P.W.2, the three accused
denied that
accused 1 ever took part in the assault on the deceased. According to
them accused 2, who is the father of accused
3, had gone to the cafe
to buy himself some tobacco. Accused 3 had gone there to buy some
bread. When he saw accused 3 following
accused 1 and 2 into the cafe,
the deceased suddenly stood up and started swearing at the accused
saying: "Your mother's anus
you are, you have come to attack me,
I am going to shoot you all!" or words to that effect.

As he
uttered those words the deceased rushed towards the door of the room
he used as his bedroom. P.W.2 ran out of the cafe at
that stage so
that she could not have seen what happened afterwards.

Both
accused 2 and 3 believed that as he ran towards his bedroom the
deceased was going for his gun and was capable of carying out
his
threat to shoot them as he had, indeed, tried to shoot accused 3 in
the past (See Exh.1). In order to forstall that accused
2 immediately
struck the deceased a blow on the head with the timber stick he was
carrying. That did not, however, stop the deceased
from running into
the bedroom and both accused 2 and accused 3 had to chase after him.
Accused 3 outran accused 2 and was the first
to get into the bedroom
after the deceased. Inside the bedroom, the deceased took his rifle
and was about to fire when accused
3 caught hold of one end of the
rifle. The deceased and accused 3 then struggled for possession of
the firearm and at the same
time the latter was stabbing the former
with a knife. In the meantime, accused 2 came into the bedroom and
hit the deceased another
blow on the head with a stick. The deceased
fell on his buttocks. Accused 1 came in, caught hold of accused 3,
who was in the process
of stabbing the deceased, and removed him out
of the room. Accused 1 returned into the bedroom caught hold of
accused 2 and removed
him out of the room.

10

According
to accused 2, before accused 1 could remove him out of the room he
delivered yet another blow on the deceased who was
trying to rise
from where he had fallen on his buttocks.

After
accused 1 had removed them from the deceased, accused 2 and 3
confirmed the evidence of P.W.2, 4 and 5 that they then proceeded
to
the chief's place and reported to D.W.4 what had happened. Although
D.W.4 said the two accused also surrendered their weapons
to her they
denied it. They, however, admitted that they were instructed by D.W.4
to go and report themselves to the police at
the Thaba-Tseka which
they did.

This was
confirmed by P.W.6, D/Tpr Matlali, who told the court that on 28th
October, 1984, accused 2 and 3 came to his office and
reported to
have fought with the deceased who had died. Following that report
P.W.6 cautioned and charged the two accused. The
accused also handed
to him a timber stick and okapi knife which they said they had used
in the fight. P.W.6 took possession of
the stick and the knife. They
had since been in the police custody.

Accused 1
conceded that as he left the cafe, he was carrying the deceased's
brown brief case. After he had stopped the fight,he
saw the brief
case in the cafe room and decided to steal it. He was going to use it
to carry his Bible after he had returned to
his home in Morija. He
took it to accused 3's house where he was staying while on a visit at
Mantsonyane. Later on that day the
police found him at accused 3's
house, arrested him and took possession of the brief case.

Although
the accused said P.W.2 ran out of the cafe before the assault on the
deceased started and she could not have seen the assault,
it is to be
remembered that according to the evidence of P.W.3 and P.W.5 once she
was out of the cafe P.W.2 raised the alarm screaming
that the three
accused were killing the deceased in the cafe. As it has been
mentioned earlier in the judgment, she repeated this
to D.W.4 when
she reported to her in the

11

village.
Moreover, P.W.2 impressed me as a better witness than the three
accused in the witness box. She could not in my view have
been able
to report the assault in the words she used unless she had witnessed
it. The accused were simply trying to shield accused
1 by hidding the
real role he played in the fight. But the evidence of P.W.2 that
accused 1 was also assaulting the deceased was
corroborated by that
of P.W.3 another impressive witness who testified that as he peeped
through the window of the deceased's bedroom
he saw accused 1 whom he
knew very well as one of the two people assaulting the deceased
another acquaintance of his.

There is
no doubt in my mind that the second man with whom accused 1 was
assaulting the deceased was accused 2 for there is amble
evidence
that at that time accused 3 was at the door of the main entrance to
the cafe preventing people from coming in.

P.W.3
further told the court that as he assaulted the deceased, accused 1
was clearly using a yellowish screw driver.

Indeed,
that goes a long way to confirm the evidence of P.W.2 that apart from
the knife with which he struck the first blow at the
deceased,
accused 1 had also a yellowish screw driver in the hind pocket of his
trousers. There is not the slightest doubt in my
mind that P.W.2 was
testifying to the truth when she said the deceased was as­saulted
by accused 1 jointly with accused 2 and
accused 3. I accordingly
accept her evidence as the truth and reject as false the accused's
story that accused 1 was intervening
in the fight and did not assault
the deceased.

In his
evidence P.W.7, S/Sgt. Machachamise, con­firmed that on 28th
October, 1984, P.W.2 and P.W.4 came to his office at Marakabei
police
station and made a certain report following which he immediately
accompanied them to Mantsonyane. He went to deceased's
cafe where he
found his dead body lying on its back on the floor in a room
allegedly used as a bedroom by the deceased. The body

12

lying in
a pool of blood. Chairs and bedding were scattered around in the
room. He noticed blood stains on the walls and bedding.
It was clear
that a scafle had taken place in that room. There was a short gun
pieced against the wall next to the bed. He was
convinced that the
short gun could not have been used in the scafle because it was still
contained in its canvas bag.

I must
say even if when he ran towards the bedroom the deceased thought of
getting his short gun to defend himself against the unlawful
attack
on him, the swiftness with which the attack was carried out according
to the evidence of P.W.2 and, indeed, the accused
themselves left him
with no chance to do so. P.W.7's version that he found the short gun
still intact in its bag is yet another
evidence of this. It follows,
therefore, that, in my opinion, there is no truth in the accused's
story that accused 3 ever struggled
with the deceased for possession
of the firearm in the bedroom.

The
evidence of P.W.7 goes on to say after he had been to the deceased's
cafe he went to look for D.W.4 in the village. He met her
on her way
to the cafe and returned with her. D.W.4 confirmed that accused 2 and
3 had reported to her about the death of the deceased
and she had
already sent them to the police at Thaba-Tseka. She did not, however,
know the whereabouts of accused 1. With the assistance
of messengers
detailed by D.W. 4, P.W.7 proceeded to look for accused 1 in the
village. They eventually found him sitting outside
accused 3's house.
Accused 1's explanation about what had happened at the cafe was that
he merely intervened to stop accused 2
and accused 3 from assaulting
the deceased and did not himself assault the deceased - I have
already found on evidence that this
is a lie - In any event with the
permission of accused 1, P.W.7 in vain proceeded to search the house
for weapons allegedly used
during the assault on the deceased. He,
however, found the brown brief case containing the deceased's
letters,passport and two
savings books. Accused 1 told P.W.7 that the
brief case was left in the house by accused 3 the owner of the house.
From the evidence
we now know that this was yet another lie by
accused 1.

13

Be that
as it may, P.W.7 confirmed accused 1's evidence that he took
possession of the brief case together with its contents viz.
the
deceased's letters, passport and the savings books. He returned to
the cafe together with the accused. At the cafe he examined
the body
of the deceased for injuries. There were so many wounds on the body
that he was not able to count the exact number.

That in
my view confirms the evidence of P.W.3 that at the time he came to
the cafe and peeped through the bedroom window, accused
1 and accused
2 were belabouring the deceased with a stick and a screw driver.

The body
of the deceased was eventually conveyed to Mantsonyane hospital and
P.W.7 also assured the court that it sustained no further
injuries.
On the following day, 29th October, 1984, the police from Thaba-Tseka
arrived and P.W.7 handed the matter over to them.

In his
evidence, P.W.8,Sgt. Ndongeni, confirmed that following a certain
report on 29th October, 1984 he proceeded to Marakabei
police station
where P.W.7 handed to him accused 1 together with some articles
including the brown brief case. They then proceeded
to the deceased's
cafe at Mantsonyane together with accused 1. In the deceased's
bedroom he saw what P.W.7 and some of the wit­nesses
have already
described to the court. From the cafe they went to the mortuary at
Mantsonyane hospital. He was shown the deceased's
dead body which had
multiple injuries.

Accused 1
then took him to a house where he allegedly stayed in the village of
Ha Toka. In the house accused 1 opened a shelve of
a sideboard from
where he took out a knife and handed it to P.W.8 with the explanation
that it was the knife he had used in his
fight with the deceased. It
was a big knife with a black handle. Accused 1 said he had also used
a yellowish screw driver which
had, however, been taken by accused 2
and 3 at the time he parted with their company at the deceased's cafe
and he would not know
what they did with it.

14

P.W.8
took possession of the knife and returned with accused 1 to the
mortuary at Mantsonyane hospital. He conveyed the body of
the
deceased to Thaba-Tseka hospital where a post mortem examination was
performed. No additional injuries were sustained by the
body whilst
it was being transported to Thaba-Tseka hospital.

At
Thaba-Tseka police station, P.W.8 met accused 3 and accused 2. After
interrogating them, accused 2 took him to D.W.4's place
at
Mantsonyane where he (accused 2) requested D.W.4 to produce the
weapons that he and accused 3 had left in her custody. D.W.4
then
handed over a yellowish screw driver and an iron rod. This was
confirmed by D.W.4 herself who told the court that when on
28th
October, 1984 she instructed accused 2 and accused 3 to go and report
themselves to the police at Thaba-Tseka, they handed
to her for
safekeeping the yellowish screw driver and the iron rod with the
explanation that they were the weapons used in their
fight with the
deceased.

As has
been pointed out , the accused now deny knowledge of these weapons. I
however, see no good reason why D.W.4 should fabricate
a false story
against them on this point. I am inclined to accept her story as the
truth and reject as false that of the accused.

It should
also be borne in mind that P.W.4 did testify in his evidence that
when he saw him at the door of the main entrance to
the cafe accused
3 was, apart from the okapi knife, holding what he believed to be a
stick. It seems clear to me that that was
in fact the iron rod and
P.W.4 mistook it for a stick. This must be so for I can think of no
good reason why accused 3 should have
swapped a stick for a more
dangerous weapon like the iron rod and tell D.W.4 that it was the
weapon he had used in his fight with
the deceased. As for the
yellowish screw driver, accused 1's explanation to P.W.8 seems to
tally with what P.W.2 and P.W.3 had
been testifying to, namely, that
apart from the knife, accused 1 was also armed with a screw driver.
There is no doubt in my mind
that in his explanation to P.W.8 about
the yellow screw driver, accused 1 was making a clean breast like a
dying man.

15

The
evidence of P.W.1, Dr. Christian Laroche, is that he was the medical
doctor who performed the outopsy on the dead body of the
deceased at
Thaba-Tseka hospital on 31st October, 1984. The body was identified
before him by P.W.2 and Sebastian (Qetelang) Likhama
in the pre­sence
of D/Tpr Mongaula. This was confined by P.W.2, Likhama and D/Tpr
Mongaula.

P.W.1's
examination revealed multiple wounds on the head, body, kidney and
lungs of the deceased. The wounds were consistent with
the use of
instruments such as the knives, screw driver, timber stick and the
sharpened iron rod before the court. From these injuries,
the doctor
formed the opinion that death was due to the stab wounds into the
lung and kidney. I find no good reasons to doubt the
conclusion
arrived at by P.W.1 viz. that the deceased died as a result of the
injuries inflicted upon him.

It is
clear from all that has been said that, in my view, the accused
acting in concert, assaulted the deceased and inflicted upon
him all
the injuries that have resulted in his death.

It has
been contended in argument before me that the accused were acting in
self-defence as the deceased had threatned to shoot
them and they
believed he was capable of carrying out his threat. I have, however,
accepted the evidence of P.W.2 that the accused
were the first to
attack the deceased with the leathal weapons they carried with them
on their arrival at the cafe. That being
so, the defence of
self-defence was available to the deceased and not the accused who
were his assailants. The contention cannot,
in my opinion, be
supported by evidence and I ac­cordingly reject it.

Considering
the evidence as a whole I am convinced that because of the bitterness
which existed between the deceased and accused
3 over the cafe
business, on 28th October, 1984, the three accused went to the cafe
with a settled intention to kill the deceased.
This is evidenced by
the leathal weapons they were all carrying, the brutal assault they
meted out to the deceased and the savage
force they applied in
inflecting the injuries.

16

In the
circumstances, I am left with no option but to come to the conclusion
that in assaulting the deceased in the manner they
did, the three
accused had the requisite subjective intention to kill. I would,
therefore, find them guilty of murder as charged.

Both my
assessors entirely agree with this finding.

B.K.
MOLAI JUDGE

12th
December, 1985.

For Crown
: Mrs. Bosiu

For
Respondents: Mr. Tsotsi.

17

CRI/T/10/85
EXTENUATING CIRCUMSTANCES

Having
convicted the accused of murder we are now enjoined by S.296 of the
Criminal Procedure and Evidence Act, 1981, to decide
on the existence
or not of any factors, associated with the crime, tending to diminish
the moral blameworthiness of the accused's
guilt.

We have
accepted in the course of judgement that the cafe business operated
by the deceased belonged to the late 'Maboitelo, a relative
of the
accused. By the decision of the family, the business was inherited by
ac­cused 3 who wanted the deceased to vacate his
place of
business. Indeed, there was some evidence indicating that, to that
end, accused 3 approached D.W.4, the chieftainess of
the area and the
Subordinate Court of Thaba-Tseka but all to no avail as the deceased
refused to vacate the place.

The
deceased's defiance of the family decision must have resulted not
only in the bitterness between him and accused 3 but also
emotional
instability to accused 3 and the other members of his family.
Although this may not be regarded as provocation in the
legal sense,
it is certainly a factor to be properly considered as tending to
lessen the moral blameworthiness of the accuseds'
act.

We come
to the conclusion, therefore, that extenuating circumstances do exist
in this case and the proper verdict is that the accused
are guilty of
murder with extenuating circumstances

Sentence:
Nine (9) years imprisonment each. My assessors entirely agree.

B K.
MOLAI

JUDGE

13th
December, 1985.