CRI/T/38/90

IN THE HIGH COURT OF LESOTHO

In the matter of :

REX v

MOTLATSI MASOETSA

HELD ATQUTHING

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
11th day of December, 1990

The accused was indicted before this Court on a charge
of Murder of one Macosonke Mok'hompe who died on the 8th of June 1989
at Tiping
in the Quthing district at a place called Mphaki.

The accused to start with had pleaded guilty to Culpable
Homicide a competent verdict to the charge of Murder. The Crown
rejected
his offer of plea to Culpable Homicide. In the admissions
proposed on his behalf, the accused admitted the evidence of P.W.8,
Dr.
Voelkein. The Crown accepted this admission, The evidence of
that doctor was accordingly read into the recording machine and made
part of these proceedings. The doctor had indicated that he examined
the dead body of the deceased on the 12th June 1989. He found
that
the wounds were caused by a blunt instrument used with

/considerable

-2-

considerable force. He based his belief that
considerable force had been used on the fact that there was an
extensive fracture of
the skull.

The Crown then led oral evidence of the balance of the
Crown witnesses who had given evidence at the Preparatory
Examination. In
brief, their evidence is as follows : The
chieftainess of the area 'Mameslakato Nkuehe had ordered her
subjects or some of
her subjects including her bugle P.W.2,
Lichabalikae Ntai, to go and impound stock which was grazing on
reserved pastures. The subjects
duly complied. But along the way to
chief Mosiuoa's place driving these cattle, donkies, sheep and
whatever, P.W.2 happened to he
at the head of the stock that was
being driven there; especially horses which were rather unruly and
restive and therefore running
around far ahead of the stock which was
coming behind him. It was while ho was at the head of this group
that he saw the accused
some 250 paces away, and he says he
recognised him because not only that they are related hut because he
recognised the horse, the
chestnut horse, he was riding on. He also
identified him by the manner of his apparel, by the manner of his
dress, the blankets
he was wearing. He had no difficulty, ho told
me, in recognising the accused.

The accused was headed in the opposite direction to
where the group driving these impounded stock were heading. P.W.2
had, during
the course of his evidence,told the Court that there was
among people who were driving these impounded stock an old man -the
deceased
in this case. The deceased was on foot while the rest of
the young man were riding on horseback including P.W.2; the deceased
came
clogging along slowly behind the group who were driving the
impounded stock. No doubt tiredness plus his age having caught up
with
him it was no surprise, therefore, that he took a rather unduly
long time before emerging from the neck which P.W.2 thought he should
have made by that time. P.W.2 got anxious and suggested that people
should go looking for the deceased.

/He

-3-

He told me that he was made even the more anxious by the
fact that he had seen the accused riding rather hard in the direction
of
the place where the deceased was supposed to come and emerge from.
No doubt he was further buttressed in his fear for the life of
the
deceased by the fact that and knowledge that among the stock
impounded were the accused's.

The request was duly complied with and a group of young
men were sent to go and look for the deceased. The most impressive
of the
evidence given by these witnesses who went there was that of
P.W.4, Thabo Morai. It corroborates and supports that of his mates
that is of P.W.1

, Lebuang Ntai, P.W.3, Mohlolo Ntakatsana's; in brief it
is as follows : Having been given an instruction by the chief to go
on looking
for the deceased they rode hard towards the neck where
they were expecting the deceased to have emerged from. When they
emerged they
did observe some 100 paces away from the neck, that the
accused was belabouring the deceased with a stick. The accused was
facing
the direction of the neck -the accused said he was not facing
the neck - he nonetheless heard these witnesses say that he was doing
so hut did not bother to cross-examine them on their version of
events which in his view was an obvious lie even if it is in
contradiction
of his own story. However, on seeing them approach,
the accused got on to his horse and fled. They rushed to the scene,
found the
deceased who was speaking hut only barely so. The
deceased told them that the accused, calling him by name Motlatsi
Masoetsa, had
finished him. Even as he was speaking he was showing
them the injuries which were obvious on the head, and along the
deceased's
rib region. They helped him along. - To go slightly back
- These Crown witnesses' evidence is somewhat discrepant as to the
actual
position in which the deceased was when they first saw him. In
the Preparatory Examination P.W.1 had said that the deceased had
tried
to rise when they came to him hut he

/staggered

-4-

staggered and fell. The same was said by P.W.3 at the
preparatory examination. But in this Court both of them said that
the deceased
had remained prostrate throughout; and only moved from
there when they were carrying him to a horse which they took to
convey him
to the chief's place. However, to his credit P.W.1
realising that the events at the scene were closer to the time when
he gave evidence
at the preparatory examination than the events today
when he is giving oral evidence before this Court; was quick to say
that the
true position was as reflected in the preparatory
examination. However P.W.3's evidence was different on the issue.
He insisted
that what he told this Court was the actual position.
But somewhere along the course of his evidence he did contradict
himself even
in this Court on that issue. As if that was not enough
he contradicted even the contradiction he had given in this Court.
Consequently
the machine was played hack; and confronted with the
unerring piece of invention consisting in the type of the machinery
that we
have here, he was clearly in a cleft stick and therefore he
said he agreed with what P.W.1 had said.

The evidence that remained consistent throughout, not
only in the court below, hut in this Court also, was that of P.W.4.
He told
me that, when they came to the deceased, the deceased tried
to rise hut he staggered and when he was about to fall they supported
him and gave him assistance. The deceased had shown them and he
observed the wounds where he complained the accused had assaulted
him. He supported the story related by his mates, namely, that when
they surfaced to the neck, they saw the accused repeatedly hitting
the deceased along the upper part of the deceased's body. Much was
made of the number of blows that were delivered. But regard
being
had to the fact that the deceased was dressed, not all the blows
which were delivered on his body could have left any marks.

The evidence of the doctor who performed the post­mortem
makes the number of the injuries as at least four

/serious

-5-

serious injuries.

There is, however, an unfortunate thing regarding the
strict adherence to protocol in the villages in this country. P.W.2
who struck
me as a man of affairs at whose instance and initiative
help was quickly availed to the deceased did nothing for a whole 24
hours
of the deceased's arrival at the place of the chief from 9.00
o'clock until the following day. The fact that the deceased did show
sighs of life even immediately after he had been struck and some 24
hours after he had spent the night at the chief's place without
any
medical attention is a sure sign that if, in fact, he had been rushed
to places where he could get relief in time he probably
would still
he alive to day perhaps. But strict adherence to protocols stood in
the way of all these attempts at saving the deceased's
life. After a
message had been sent to Chief Mosiuoa about the condition in which
the deceased was the latter in turn sent a message
to inform a
superior chief. No doubt, at the time when all this was being done
the deceased's life was ebbing away at a fast rate.
That was just an
aside.

The crux of the matter in this case is that it appears
that the deceased was going about hie duties and carrying out his
lawful functions
of obeying lawful authority in joining the men who
were told to go and impound the stock which had trespassed in the
reserved pastures.
The accused took advantage of the fact that
because of his old age and the fact that he was lagging behind he
should go and wreak
his anger, if there was any such, on him.

It is significant that in this Court the acused who had
sworn to tell me the truth, told me that he had hit the deceased
because the
deceased insulted him by saying "Mosono ka nyoko"
to him. Apparently when saying this, the accused had forgotten the
fact that in his application for hail he had sworn an Affidavit
in
which he had said he had hit the deceased because the deceased had
joined a group of

/men

-6-

men who were driving his cattle or interferring with his
cattle. What remains when all is said and done is that no how if
either
of these two versions was true could a man, who acted the way
the accused did, forget the reason why he had assaulted another to
death. In the circumstances the accused is clearly in a cleft stick.
Neither is it true that the deceased insulted him as a result
of
which he attacked him nor the fact that the deceased had driven his
cattle; moreso because he was not driving any at the moment;
if there
were any people who were responsible for driving cattle, these were
the young men who were riding on horse-hack, whom the
accused, no
doubt, felt he would not match. Hence his decision to make quick work
of the fossil that had remained behind. He also
made mention, in his
evidence, of the fact that he had committed this act because one of
his herdhoys had been assaulted the previous
day at the cattle-post.
Significantly, he conceded that the deceased was not one of the
people who had hit his herdhoy. It would
appear, therefore, that for
no good reason whatsoever, the accused belaboured as the Crown
witnesses said the poor fossil. Even
if he felt justified in being
angry that his cattle had been impounded, surely, the best person to
have gone to register his protest
to was the man from whom the
instruction to impound them amanated. But in the scheme of the
accused's doing things he felt that
the weakest must go to the
proverbial wall.

From the nature of the injuries inflicted and the
conduct of the accused after he had inflicted those injuries, namely,
that he betook
himself from the scene, scarcely taking care to see
whether the deceased didn't require immediate help, it is clear to me
that the
act was committed with intent. On his part the accused told
the Court that by leaving the deceased, so to speak, in the lurch he
was showing remorse. One would quickly liken the type of remorse
that he is talking about to the tears of a crocodile which flow
when
it is eating up somebody. I reject that explantion of his with
contempt.

The accused is convicted, therefore, of Murder as
charged.

My assessors agree.

JUDGE
11th December, 1990

EXTENUATING CIRCUMSTANCES

In an attempt by your counsel to pursuade the Court of
the existence or otherwise of the extenuating ' circumstances he
addressed
the following to the Court.

That you did show your remorsefulness by pleading guilty
when the charge was first put to you and that your plea to Culpable
Homicide
was rejected by the Crown thus it was not really your fault
that the case took this long. Further that the interval between the
assaults
and the deceased's death was so long that if he had received
medical attention on time he would have survived.

My view is that the last of the above grounds would have
had some merit if the accused had been seen doing something towards
alleviating
the deceased's condition instead of abandoning him and
leaving him to the tender mercies of the elements and animals of prey
in the
veld.

I take the first of the grounds advanced as constituting
extenuating circumstances.

M I T I G A T I O N : Having considered pleas
in mitigation on behalf of the accused I have come to the conclusion
that 14 years' imprisonment would
meet the justice of this case. It
is so ordered.

My assessors agree.

JUDGE
11th December, 1990

For Crown : Mr. Qhomane For Defence: Mr. Matooane