CRI/T/36/90 IN THE HIGH COURT OF LESOTHO

In the matter of :

REX

v

DAMANE DAMANE HELD AT QUTHING

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
10th day of December, 1990

The accused was charged with the murder of one Tsokolo
Masoetsa who died on the 11th September, 1989 at Makhalong Mphaki in
the district
of Quthing. The accused pleaded not guilty to the
charge. It was admitted on behalf of the accused the preparatory
depositions
of the following witnesses :

P.W.6 - Dr. Sfetcher Klauss

P.W.7 - D/Tpr Ntepe P.W.8 - W/O Hant?i

The first Crown witness who was called and gave oral
evidence is one Boy-Boy Letsie who lives at Mphaki in the same area
as the accused
does. He knew both the accused and the deceased. By
profession he is a builder having got himself a certificate in that
regard.
On the 11th of September 1989, he told me that he was at
Mphaki working

/there

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there. After knocking off, he repaired to Makhalong
which is his home, this was around 3 or 4 o'clock p.m. He was in
the company
of Tlaix P.B.5 and one Malofetsane. Along their why
they were met by the deceased who was riding on horseback and his
horse is said to have been moving slowly.
Shortly afterwards they met with the accused who was also on
horseback following the deceased.
After they had gone past the
accused they were just about to meet a lady who was moving in the
opposite direction to them, thus following
the deceased and the
accused. She drew their attention to people who, she said, were
fighting behind them. The trio hurriedly went
to the scene. Indeed,
according to one of these Crown witnesses, when their attention was
brought to this incident, I was told,
the tried were about from where
the witness box in to the building outside
there estimated at about 20 paces.

P.W.1 corroborated by P.W.3 told me that they saw the
accused grappling with the deceased. And then, their grappling led
to a fall
into a culvert. The accused was seen, rspeatedly, using
Exhbibit 2, the stone,
to hit the deceased. The deceased tried to rise but failed. The
trio tried to intervene, orally, by asking the accused
to leave the
deceased be. The accused's begin answer was in the form of a
question asking if they hadn't any business to do. At
the time the
accused was seen carrying the stick which is before Court and he was
seen moving from where he had been belabouring
the deceased with this
atone going to the rise in the raad and picking a stone, the size of
a cement block, raising or lifting it
and then letting it drop on the
head of the deceased

The accused is said to have said when leaving the
deceased that the deceased had stabbbed him with a spear

hut
did not kill him, and that this is now the chance that

the accused was going to use
for killing him. He was heard to

ask
boys who were, around there if the deceased hadn't died. And he took
the deceased's horse and mounted it and left

/the

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the place chasing his own horse while he was mounted on
the deceased's horse.

The accused denies that when
he was seen by these witnesses he was riding on his own horse; he
denies also that he used a big stone to drop on the deceased's
head
while the deceased was lying prostrate.

In evidence before me, he told me that the deceased had
way-laid him and that the deceased was armed with a stirrup and a
whip. The
deceased is the one who started the fight.

At the time when the accused was applying for hail a
short while after the events, he told the Court then that the
deceased was armed
with a stick, hut today some year and odd weeks
afterwards he suddenly remembers that the deceased was armed with a
stirrup and a
whip.

Needless to say I have observed the witnesses who gave
evidence for the Crown on the issue. They were not only consistent
in what
they said, hut their story had a ring of the truth to it.
Moreso because they consistently, with the exception of the
deceased's
brother told me that they had nothing against the accused,
therefore, they would have had no cause whatsoever to give evidence
falsely
incriminating the accused. It is in this respect, therefore,
that I accept their evidence that the accused was seen riding on
horseback
hurriedly behind the deceased. Even with regard to the
deceased's brother, he told me that even though there is no love-lost
between
him and the accused, he wouldn't falsely implicate him in
this Court. I take his story as true also on that, moreso because
his
story was not tested or challenged when he said the accused
during one of the occasions when they had differences with the
deceased
went to the deceased's place - and in the words of the
deceased's brother "besieged the deceased along with the
deceased's children"
- according to the deceased's brother's
story.

Needless to say, this story was never tested or

/challenged,

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challenged, therefore, it is taken as evidence before
Court which is truthful.

It would appear, therefore, from that evidence that the
accused has consistently been the aggressor whenever he had occasion
to encounter
the deceased. Because not only did the deceased's
brother give evidence to that effect hut there was also one of the
Crown witnesses,
a mature man, who told me that the accused had one
time insulted his mother and that the mother complained to the
deceased and asked
him to chastise the accused way hack when the
accused was in his early twenties. The deceased obliged and
chastised the accused.
This sort of gives a background to the feud,
the long feud that existed between the accused and the deceased. But
the peculiar aspect
of this feud is that whenever it came to either
blows or whatever, it was always the accused who was seen either
around the deceased's
place or because the accused was being
reprimanded legitimately by the deceased at the accused's parents'
request.

I have no hesitation then in rejecting the accused's
story as just a fabrication and as not worthy of credit at all. Of
course, as
put by his counsel in summarising the case for his client,
an accused person has the lattitude while fighting for his life to
tell
lies hut some of the lies he gave were so ridiculous that they
could best be looked upon with contempt.

The injuries have been described by the doctor who
performed the post-mortem. The doctor ascribed death to multiple
skull fractures
which also led to bleeding into the brains and
causing tremendous compression in there. The doctor described the use
of force applied
there as tremendous to get such a fracture that he
found. I have no doubt in my mind that the stone that the witnesses
described
and said they saw the acused lift and let drop on the
deceased's head could have caused the injuries that the doctor has
described.

/The

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The accused's story consists of inconsistencies. He told
me in his evidence - in-chief, that after he had

hit the deceased twice with Exhibit 1 he had occasion to

hit
the deceased twice with Exhibit 1 move
on to the top of the road and left him there. This is the evidence
that he gave in his evidence -in-chief. Ten minutes afterwards
he
told me that he hit the deceased five times on the same spot with
that Exhibit1. Asked how he would reconcile the story that
he gave
me about hitting the deceased twice with this stone, with the
statement he made later that he hit him five times, he was
obviously
in a cleft stick. And the reason is very obvious, namely that the
five to make the number of occasions that he hit the
deceased with
that stone to rise to five he would have had to resile from his story
that after hitting the deceased with this stone
twice he left for
good. In other words, in order for the number of occasions in which
he hit the deceased with that stone, even
if it was at the same spot,
to come to five he would have had to go hack to the scene after
returning from the place where he had
left for good after hitting the
deceased twice with that stone. One sees in that type of relation of
a tale or narration of a story
a desperate move to run away from the
obvious. I have no doubt that the Crown witnesses tell me the truth
when they say that the
accused picked up this enormous stone and let
it land on the deceased's head. The accused wants to make merit of
the fact that the
stone in question has not been brought in Court.
While in fact that is a charge on the investigating officers, it does
not assail
the credibility of the Crown witnesses who testified to
this point before me.

The question then to ask in this case is why should

the
accused have belaboured the deceased the way it is described he did;
and ultimately kill him? One of the factors that a Court
has to take
into account is an accused's behaviour immediately after the event.
S. vs
X. 1974(1) SA 344 at 347 H to 348 A is authority
for the view that the accused's conduct immediately after the event
is

/pertinent

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pertinent to the charge or the state of mind in which he
was when he committed the offence. The Crown witnesses told me that
the
accused asked if the deceased hadn't yet died. That clearly shows
the intention that he meant the deceased to die when he assaulted
him.

The Crown in argument submitted before Court that on
account of the long feud that existed between the deceased and the
accused the
latter must have formed an intention to settle old scores
with the deceased. The defence asked the Court to reject that as
having
no basis whatsoever in evidence. But where there is no direct
evidence it would help to use inferences to arrive at a conclusion
provided that the inference sought to he drawn is the only one that
is reasonable in the circumstances.

It would appear in the circumstances therefore that the
existence of the long feud between the accused and the deceased could
very
easily lead to the accused behaving in the way he did towards
the deceased. But if that he not the case, surely, this behaviour
immediately after the encounter shows that he had the intention to
kill. I reject, therefore, the version that there was any case
for
self-defence in this trial. I also reject the accused's story that
the deceased had way-laid him. First of all the Crown witnesses
said
that the deceased was not armed with anything. Naturally, a man who
seeks to way-lay another usually makes preparations to
ensure that
his life would never be in danger. There was no how the deceased
could arm himself with a stirrup and its strap while
intending to
way-lay the accused if at all he used the stirrup and strap. That
only shows the desperate attempt on the deceased's
part to quell
whatever attack was being mounted against him if at all he used the
stirrup and its strap. In any case the accused
said just as
much,namely, that if he himself were to he attacked then he would use
the stirrup as the last resort. The only inference
to draw from the
accused's denial that he was riding on horseback when he came
following the deceased is that the accused does

/not

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not relish the idea that he was eager to catch up with
the deceased who was riding ahead of him, and pick up a quarrel or a
fight
with him. He chose to tell this deliberate lie in the teeth of
overwhelming and credible evidence with the hope that, because he
would not ordinarily catch up with the horse rider i.e. the deceased
if he was walking on foot, some impetus could he given to his
story
that he was able to catch up with the horse-rider not because he had
come hurriedly following him hut because the horse-rider
had
motionlessly way laid him.

The accused collected some items from the scene
including the deceased's blanket and the horse. It is to he wondered
why then if
the deceased in this encounter had occasion to use his
whip the accused didn't collect the whip to report himself carrying
it along
with him as he did to the police. I have already stated
that the question of the use of the stirrup and the whip are just
figments
of the accused's imagination. He would have indeed made
mention of them at the time that he was under oath while applying for
hail
before Court if they featured at all in this trial. But in the
evidence he made mention of a stick. No stick was brought to Court
belonging to the deceased. I* would appear that even before the
Court that heard his hail application the accused was telling lies.

The accused is accordingly found guilty of murder as
charged.

My assessors agree.

JUDGE
10th December, 1990

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EXTENUATING CIRCUMSTANCES

I have just heard an address on the existence or
otherwise of extenuating circumstances in this case. Of their nature
the extenuating
circumstances help avert the ultimate penalty. I
have listened, therefore, carefully to your counsel's address on this
issue why
you shouldn't he sentenced to death. He told me that there
was this long feud between you and the deceased as testified to by
the
Crown witnesses including yourself. You also told me that it is
undeniable that you had taken drink that day. Countering one of
these
factors, the Crown properly told the Court that a long feud would
only serve to aggravate the crime, because on it is based
the element
of premeditation which would never he of help to you at all, at all.
The Crown did very properly too concede that there
was an element of
drink in this case. On that, and that alone, the Court finds that
extenuating circumstances do exist.

S E N
T E N
C E

I am being given reasons why the sentence to he imposed
on you should not he stiff. One of them is that you immediately went
to the
police to report yourself, hut that was not before you had
boasted to the young boys who were around there that you had killed
this
fellow. I have heard this evidence which showed me that you are
the type of man who doesn't want to he chastised. As a young man
maybe you would have protested against being chastised hut that
chastisement has got its own effect which I would call very
beneficial
effect. But now it looks like you have persistently
resisted reprimand even to you at the behest of your own parents.
Now, you
have come to me, the deceased tried to chastise you, you
ultimately killed him.

My assessors agree with me that you have got to he kept
away from society for considerable length of time. I

/have

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have been told that you have children whom you are
fending for including your mother. I think your mother should he
happy now that
you are kept out of her sight for a while, because you
ultimately killed somebody whom she had asked to put you right as if
to cock
a snook at her you broke the rod
that was meant to correct you.

The least sentence that I can impose on you is that you
go to gaol for twenty-two (22) years.

My assessors agree.

JUDGE
10th December, 1990

For Crown : Mr. Mokhobo For Defence: Mr. Fosa