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,
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(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
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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. 'Mdthaabe Toka Mojela, the Chieftainess of the area, on the way to her place and reported what was happening 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.
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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.M.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.M.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!"
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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 vheicle 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, 1934 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 accoused 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.
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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, 'Makarabeio Motholo, who told the court that
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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,there.fore, 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.
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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.
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The three accused also testified on oath before this Court. Their evidence as 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.
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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
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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.
Ther 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
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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 placed 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.
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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.
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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 pl3ce 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.
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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 confimed 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.
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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.
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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
13th December, 1985.
