CRI/T/36/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
v
LEBALLO LEBALLO MOKAKE MONYOBI
JUDGMENT
Delivered by the Hon. Chief Justice Mr Justice T.S. Cotran on the 1st day of October 1985
The two accused Leballo Leballo (A1) and Mokake Monyobi (A2) are indicted before me on a charge of murder. The particulars read that on or about the 18th March 1984 at or near Ramohapi's in the district of Mafeteng one or the other or both did unlawfully and intentionally kill Tebatso Khalienyane, hereinafter referred to as the deceased.
Both accused pleaded not guilty.
The defence admitted the evidence of the following witnesses as it appears in the record of the Preparatory Examination:-
Mokete Mokorosi (P.W.6)
Lirahalibonoe Letsie (P.W.7)
Warrant Officer Mara (P.W.8)
Ramatloane Khalienyane (P.W.9)
Dr. J.B. Westerhuis (P.W.10)
Ramatloane gave evidence of identification of the deceased's body and Dr. Westerhuis testified about the cause of death (severe brain damage) and other matters found in the post mortem. Mokete Mokorosi testified that A1, when in company of A2 and Matente, handed her the axe (admittedly used to kill the deceased) saying he will come to fetch it later. The police however came with
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A1 and A2 and others including the headman Lirahalibonoe and collected it. Warrant Officer Mara testified that he arrested A1 and A2. He was led by A1 to Mokete's house where he was handed an axe.
The rest of the case for the Crown with some minor variations in the witnesses' evidence can be summarised as follows:-
Ha Ramohapi village boasts of two beer halls. They are close to each other.
Ha Ramohapi and Ha Khalienyane are two separate, but adjacent villages, each under its own headman.
Not all the inhabitants of Ha Ramohapi know personally the inhabitants of Ha Khalienyane.
The deceased's home was in Ha Khalienyane. On the day in question (18th March 1984) he made an appearance at Ha Ramohapi at the beer hall of Lephahamela Mofolo some time in the afternoon about 4 p.m. He sat outside in the compound drinking beer with a man he knew called Lebuoajoang Motlohi (P.W.2) from
Ha Ramohapi. Next to them was the bugle of Ha Ramohapi Monare Monare (P.W.1). Monare Monare knew Lebuoajoang but did not know the
deceased.
A1 and A2 were identified by Monare (who knows both of them well) walking along a pathway one after the other outside the compound of Lephahamela's beer hall at about that time.
Monare noticed that the deceased, who was sitting in in his company and that of Lebuoajoang, had moved away towards the gate of the compound. He saw A2 hit the deceased with a stone which fell him down
.
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and saw A1 hit him with an axe, which he produced from his waist, on the head, twice, the second time whilst the deceased was prostrate.
According to Monare A1 wore a jacket. Lebuoajoang testifies that he saw A1 hit the deceased with an axe twice. He did see A2 near A1 but did not see him hit the deceased with a stone.
Lephahamela Mofolo, the owner of the beer hall, saw A1 throw stones at the deceased who ran towards the gate. He adds that A1 outran deceased, pulled something from his waist, and hit deceased twice on the head. He did not see A2. According to Mofolo A1 wore not a jacket but a shirt of the type that hangs over the trousers.
According to A1 he found himself (after earlier having had drinks at his grandparents home) at the stockfare party of one Mamaki Monyobi at Matente Monyobi's compound. A1 puts the time at midday. He says that there arrived a group of men from Ha Khalienyane's village. At that stockfare there was music and dancing. The Khalienyane group, which did not include women amongst them, did not buy any beer, but "took over" the party. They kicked a jug of water from a group that included A1 and A2, interferred with the music, tampered with the women of Ha Ramohapi, joined together in a line, and behaved so disgracefully that they had to be rebuked by the "chairman" of the village. They did not, however, heed the advice without being more belligerent and left the place throwing stones at those from Ha Ramohapi group. During this fracas A2's brother, Matente was injured. One of the women attending him raised an alarm which was heard by a person at Lephahamela's beer hall, one Fako Fako (P.W.3) who says the house was some ½ a mile away. We think it was considerably shorter, one witness describes the distance as "across the
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road". Fako says that he saw A2 only at Matente's. A1, however, says he was there too and this is more likely to have been the case.
I believe this version of A1 of the earlier events because it has a ring of truth and rationalises the events that followed. But he then says that when the group from Ha Khalienyane hit Matente with sticks (the latter came to calm them down and was not actually at the stockfare) and continued to throw stones at them once coming forward and once retreating, and having heard that the Khalienyane group had made it to Lephahamela's beer hall still throwing stones, he and A2 and others made their way there. A1 says he carried stones, but at the gate, quite by chance, he saw an axe on the ground. He picked it up and almost simultaneously he saw a stranger to him, who turned out to be the deceased, rushing at him wielding a stick and was about to strike. A1 says he avoided the blow and struck the deceased with the axe he had just found in rapid succession whilst deceased was standing. He denied that he struck at the deceased the second time whilst prostrate. He says he had had far too much to drink, was sorry for the man's death, felt remorse afterwards because he did not intend to kill, he simply went to Lephahamela's place to fight the intruders and drive them off; a task which he was able to accomplish.
A2 elected to remain silent but with respect to Mr. Kalamanathan who argued to the contrary there is little in the evidence from which the Court can infer beyond any reasonable doubt, that A2 made common cause with A1 to kill the deceased or anyone else. In particular there is no evidence that he knew A1 carried the axe since it was concealed at his waist either beneath the jacket of the overhanging shirt whatever the recollection of the witnesses on the point is. A2 might have harboured anger against the
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Khalienyane people for causing injuries to Matente but this did not manifest itself at more than an intent to engage in public violence or assault on that group. 1 do not think it could be said that he associated himself with the killing.
We do not think that A2 could be convicted of more than assault common and we so find him believing Monare that A2 did hit the deceased with a stone before A1 chopped him with the axe.
As far as A1 is concerned we reject entirely his evidence that he just found the axe on the ground. We believe the prosecution evidence that he had it on him. Whilst there is evidence that deceased carried a stick of a very light type we do not accept that he hit or attempted to hit A1 with it and in any event even if true, A1's retaliation with a lethal weapon is out of all proportion to the weapon (stick) used, if such was the case, by his adversary.
We think that A1 did consume some liquor but his memory of the events of that day does not indicate that he was so drunk that he did not know what he was doing. It may be that the subjective intent to kill rose at the spur of the moment but that does not justify us in finding him guilty of any lesser offence than murder though there may be extenuating circumstances which we will consider at a later stage.
I find A1 guilty of murder as charged. My assessors agree.
CHIEF JUSTICE
1st October 1985
For Crown: Mr. Kalamanathan
For Defendants: Mr. Mda
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Extenuating Circumstances
Extenuating circumstances were found in respect of A1 on the following grounds:-
absence of premeditation,
too much to drink.
Sentence:- A1 Six years imprisonment.
A2 One year imprisonment half of which suspended for two years on condition that he be not convicted of an offence involving violence to the person during the period of suspension.
