CRI/T/16/89

IN THE HIGH COURT OF LESOTHO

In the matter between:

REX and

MAKOAKOA LEBAKA 1st Accused

MATALA NYAPISI 2nd Accused

LIEMO RAMPAI 3rd Accused

MAHLOMOLA MASUPHA 4th Accused

JUDGMENT

Delivered by the Honourable Mr. Justice J. L. Kheola on
the 29th day of October, 1990.

The accused are charged with the murder of Abraham Tall
Khosi on the 5th March 1988 Matukong in the disrict of Leribe.
They have
pleaded not guilty to the charge.

P. W. 1 'Mamahlape Khosi is the wife of the deceased She
testified that on the 5th March, 1988 she and her late husband
attended a
funeral service at Matukeng. After the funeral service
they returned to Hlotse where they lived as her husband was a
policeman in
the Royal Lesotho Mounted Police. On their way back to
Hlotse they called at Motsoenong

Restaurant at Matukeng because the deceased wanted to
buy some tobacco. Having bought the tobacco the deceased asked

/ 2...

-2-

for some money so that he could buy some beer. She gave
him the money and he bought beer which he drank with one Pesa
Letuka. While
they were drinking the beer one Pinki Monoane came to
them and accused the deceased of being a kill because he had
instructed the
police to kill him. He persist in this accusation
until Pesa Letuka intervened and ordered him to stop it. Pinki
complied.

After this disturbing incident she and the deceased left
the restaurant. When she came to the door one lady called her and
said that
she was pleased to know her as the wife of the deceased. As
the lady was talking to her she (P.W.1) saw that the deceased was
outside
opposite the window. She got out and found the deceased
standing with A4 and the latter was insulting the former. She caught
the
deceased and they went to the bus stop. A4 followed them and when
they came to the bus stop he caught the deceased by his jacket
at the
neck and invited him to fight or shoot. The deceased said A4 should
leave him alone and moved backwards for a distance of
about
twenty-five paces while A4 was still holding him. He let him free but
continued to follow him for another distance of about
seventy-five
paces. She heard a gun report and A4 pulled up his skipper and showed
the deceased a wound saying ho had shot him. At
this time A2 and A3
arrived and passed her at the bus stop and went to the deceased who
was already at the top of the bank of the
road. A1 also can-up from
the restaurant and passed P.W.1 at the bus stop and went to the
deceased.

-3-

P.W.1 deposed that when A1 came near the deceased he
shook himself and the deceased fell down. She did not see what A1 did
to the
deceased before the latter fell down. After he had fallen down
A2 and A3 hit him repeatedly with their sticks. A1 left them and went
down towards the restaurant. He was walking normally and not running.
After A2 and A3 had belaboured the deceased with their sticks
A4
searched him.

In cross-examination P.W.1 said that it was raining
heavily that afternoon. She has known A1 for a very long time and
denies the
allegation by the accused that he does not know her. The
deceased was still retreating when ho ended up shooting A4. After
that
he went up to the top of the bank of the road and was opposite
the gate of Spar Supermarket. P.W.1 says that although she was
confused
and crying she saw well what was happening. She denied that
A1 was hit with a stone at the solar-plexus region while he was
trying
to stop people who were throwing stones at the deceased, she
also denies that after the deceased had fallon down A1 chased a
person
who had taken the gun of the deceased

she was in the restaurant and having a good view of the
deceased she did not see him separating people who were fighting.
However,
when she came out the deceased was at the corner of the
restaurant and A4 was insulting him.

P.W.1 testified that although she has not told this
Court that A2 and A3 were throwing stones at the deceased, this were
actually
doing so. She knew A2, A3 and A4 before this

/ 4 ...

-4-

incident because she lived in the same village with
them. She denied that the deceased threatened to shoot A2 and A3 when
they were
enquiring from A4 what had happened. She denied that the
decease then fired at A2 and A3 and that they ran away and turned
and faced
him when he fired the second shot. At the time the deceased
shot A4 the latter was throwing stones at the former.

P.M.2 'Mabaruti Mochesane testified that on the 5th
March, 1988 she was in the restaurant when A1 had a quarrel with
another person.
One man asked the deceased, as a police, to separate
them. The deceased intervened and took or led the man who had a
quarrel with
the accused to the bus stop. Deceased's wife followed
them towards the bus stop. P.W.2 also went with them to the bus stop.
She noticed
that some young men were throwing stones at the deceased
and

one of them was A4. She did not know why they were doing
this A1 and others came up from the restaurant and one of them took
out
something from his sock and gave it to A1 who isnt to the
deceased. He was already at the top of the bank of the road and
opposite
the Spar supermarket. A1 went infront of the deceased and
the latter immediately fell down. She did

not see exactly what A1 did to the deceased but it was
as if he held him at the neck before they both fell down. He took the
gun of
the deceased and then he called A2 and A3. On their arrival
there A2 and A3 hit the deceased with their sticks. A1 was kicking
him
with his shoes after he had taken the gun. While stones were
being thrown

at the deceased she heard gun reports and saw that the

-5-

deceased was shooting but aiming at the ground because
mud was going up everytime he fired.

Under cross-examination P.W.2 said that although she was
in the bar she did not see the quarrel between the deceased and
another person.
She was sure that it was A who was causing trouble in
the bar and not Pinki. Machebane (P.W.4) knows about the quarrel.
She originally
intend to go to Spar Supermarket but failed to reach
her destination because when she came to the bus stop there were many
people
who were throwing stones at the deceased. She did not see what
that person gave to A1 because she did not pay any particular
attention
to what that person was doing.He denied that A1 was hit
with a stone on the solar-plexus and She also denies that A1 is not
the person
who took the gun of the deceased; the truth is that it was
A1 who took it from the deceased after he had caused him to fall.
She
denies that the deceased was held by his jacket while he was
retreating.

P.W.2 said that when she came to the bus stop stones
were already being thrown at the deceased by more than two people.
When the throwing
of stones at the deceased

started A2 and A3 were still near the restaurant. Out
when A1 beckoned them they went to the deceased and hit with sticks.
She admits
that A4 had been shot and had taken a lot of liquor but is
adamant that he was throwing stones at the deceased..

/ 6 ...

-6-

P.M.4 'Machetane Tsuba testified that she was in the
restaurant sitting at a table with her husband when A1 came to them
and asked
her if she lived with one Hlomphang. Her husband answered
A1 and told him that she was his wife. A1 was too quick to take
offence
and asked P.W.4's husband what he thought he could do with
his wife. He said she was too old and not his type. He threatened to
stab
and kill them. P.W.4 says that she saw one Thebe Letuka (he was
P.W.7 at the preparatory examination and his deposition has been
admitted by the defence) and called him and asked him to talk to the
accused because he was threatening her and her husband with
death.
Thebe Letuka went out with A1 but he (A1). returned and continued to
threaten to stab them with a knife. She said when one
man gave a
knife to A1 after taking it from his sock. She also saw A2 and A3
come into the restaurant. They asked one Matseliso to
give them beer.
She offered them wine but they said they wanted beer and left. A1
went out with them. She later saw that A1, A2 and
A3 were involved in
a fight with the deceased. A1 threw a stone at the deceased while A2
and A3 were hitting him with sticks. She
went into the restaurant and
made a report to Thebe Letuka. She went with Thebe to the spot where
the deceased had fallen; on the
way they met A1 A2 and A3 running on
the tarmac going towards Leqhutsung.

P.W.5 Tsietsi Setheki was employed as a nightwatchman at
Spar Supermarket. He deposed that on the 5th March 1988 he arrived at
work
at about 5.00 p.m. while he was

/ 7 ...

-7-

attending the dogs at the back of the supermarket he
heard gun report. He immediately came to the front of the supermarket
and saw
the four accused persons. A1 was

coming up the read; when he came to the deceased the
latter fell down. He did not see what A1 did to the deceased. ... and
A3 belaboured
the deceased with their sticks after he had fallen
down. They ran away when they noticed that he was dead. They were
hitting him
on the head. After that A4 came to him at the gate and
showed him a wound. He asked him if he was happy that he had been
wounded.
A4 went to the deceased and held him and bumped his head
against the gound. He searched him but found nothing. A1 had taken
the
gun of the deceased before he ran away.

P.W.5 testified
that he knew A1 by sight. He often visited the home of the parents
of A1 because it is used as a shebeen for Sesotho
beer. He saw A1
there on severs occasions. He denied that he mistook A1 for another
person. He recognized him very well as a person
he knew. A1 did not
kick the deceased, he took the gun and ran away. He heard one gun
report and denied that there were several
gun reports.

P.W.6 'Matumahole Hlaeli corroborates P.W.4 that he had
a quarrel with P.W.4 and her husband. She saw when one man gave a
knife to
A1. A2 and A3 came into the restaurant but did not do
anything. P.W.6 says that she went to the lavatory outside the
restaurant.
When she came back she met the deceased. A1 pointed at
him and said that he had

/ ...

-8-

caused his arrest for unlawful possession of dagga. The
deceased did not answer him but went straight to the bus stop . When
she later
went to the other side of the road where the deceased had
been assaulted she met A1, A2 and A3. A3 was saying that the
policeman
could not beat or defeat him because he had defeated many
policemen from the Orange Free State. A1 was saying that he had eaten
or
taken thai thing.

Dr. Knight testified that on the 5th March, 1983 he was
on duty at Hlotse Government Hospital. The deceased was seen by him
after
a history of assault. He was unconscious

and bleeding profusely from the mouth. He had multiple
lacerations all over the body, especially on the head, clinically he
had multiple
fractures of the skull and fracture of the mandible. He
was taken to the theatre immediately and traceatomy was done and
blood transfusion
given with all that rescucitation the patient died
within half an hour.

The difficulty I have with the evidence of Dr. Knight is
that the original report he compiled on the 5th March. 1988 when his
memory
was still very fresh and was then relying on the notes or the
medical chart, is lost. On the 13th August, 1988 he was approached
by the police and asked to make another report. In compiling the
present report (Exhibit "A") he relied entirely on his
memory. Dr. Knight appeared before me many times when I was the
Senior Resident Magistrate of Leribe. He is a very reliable witness
whose reports were usually very comprehensive and

-9-

thorough that they were usually admitted without much
cross-examination. However, in the instant case he was asked to make
a report
from memory of the events which occurred over five months
ago. A doctor at Hlotse Government Hospital attends to many patients
in
just one month. In five months Dr. Knight must have treated
hundreds of patients. Although Dr. Knight was not prepared that he
might
have made some mistakes, I think his report is unreliable,
especially the details of the injuries.

Dr. E. O. Olusola performed a post-mortem examination on
the deceased's corpse. He found severe head and facial injuries with
multiple
depressed skull/mandibular fractures and intracranial
haemorrhage. There was a stabwound on centre of the throat and
another stab
wound on the left the wall. He said that the stabwound
of the left chest wall did not go into the lungs and had nothing to
do with
the death of the deceased. The head was like a cracked egg
shell. He was of the view that several blows must have been inflicted
to cause all those fractures and that tremendous force must have been
used to cause those fractures. His report is Exhibit "C"
in
these proceedings.

I think the report of Dr. Olusola is more reliable than
that of Dr. Knight. When he performed the post-mortem examination
there was
no emergency and had enough time to a proper observation.
Although he did not complete pages . and 3 of the post-mortem
examination
form, I am satisfied that all the injuries were observed
and recorded on the first page of the form. There is no doubt that
the assaulted

/ ...

-10-
were so severe that the head was completely
disfigured.

A1 testified that on the day in question he went to
Motsoeneng restaurant at about 5.00 p.m. He remained at the
restaurant for about
twenty minutes and downed four long-toms tins of
beer during his stay there. When he left for the bus stop it was
raining. On his
arrival at the bus stop A2, A3 and A4 were fighting
with the deceased. They were throwing stones at him while he
(deceased) was retreating
and was near the corner of the yard of Spar
Supermarket. He rushed to the accused and shouted at them but they
seemed not to hear
him because of the noise made by the vehicles
passing on the road. He finally came to the accused and passed them
and stood between
them and the deceased. He raised up his hands in
order to stop throwing stones at the deceased. He took a few steps
towards the accused
but was hit on the chest with a stone. He fell
down. When he rose one Thabo Tsukutla told him that someone had taken
the gun of the
deceased and was running away with it. He chased that
person and caught him a very long distance from the scene of the
crime and
took the gun from him. He returned to the scene of the
crime and found that all the people had left. He went to his home and
gave
the gun to one Senatla Lebaka (His deposition at the preparatory
examination was admitted of the defence. He was P.W.3).

He denies that he was given an open knife in the
restaurant. He denies that he caused the deceased to fall nor that
he ever kicked
him. He did not touch the deceased

-11-

at all. He knew all his co-accused as well as the
deceased and wanted to talk to them to stop the fight. He admits that
while he was
in the restaurant he had a quarrel with , Khoro. He did
not see the deceased and he did not interviene in his altercation
with Khoro.

The stories of A2 and A3 are the same and shall be
treated together. On the morning of the 5th March, 19 they went to
Tsikoane Restaurant
and bought eight (3) quart bottles of beer and
drank with two of their friends. Fro:.: there they went to
Motsoeneng Restaurant
and one 'Malikose bought one quart bottle of
beer for them. They drank it and then went into the village of
Matukeng where they
bought one babaton scale of Sesotho beer and
drank it. When they were about to leave that place they heard sound
of a gun coming
from the direction of the bus stop. They rushed to
that place and on the way someone reported to them that A4 had been
shot They
eventually came to A4 and asked him who had shot him He
pointed at the man who had shot him. As they were still talking to A4
that
man came to them and threatened to shock them on the buttocks.
He immediately took out a gun and fired at them. They did not see
where the bullet landed because they were already running away and
not facing that man.

They ran for a short distance of about twenty paces and
that man fired the second shot. They turned and advanced towards the
man.
He retreated as they threw stones at him After crossing the road
that man fired again and went up the bank of the road. They followed
him and found him sitting

/ ...

-12-

down on the top of the bank of the road. They went to

him and hit him several times with their sticks. A2 says
that he hit the deceased on the belly and not on the head as alleged
by some
Crown witnesses. A3 hit hit him on the head about three
times.. Thereafter they left for their homes leaving the deceased
lying prostrate
on the ground. They say that they did not foresee
that the deceased might die as a result of their hitting him with
sticks. They
had no intention to kill him. The deceased did not have
any visible injuries when they found him sitting on the top of the
bank
of the road. He was still holding his gun but no longer firing
at them. As they belaboured him he was still trying to stand up and
that gave them the impression that he was still fighting and trying
to shoot them.

A3 says that he was hitting the deceased very hard

and knew that when a person is hit in the manner he did
he might die.

It is quite correct that there were many people at, the
bus stop when the fight started and that the fight is correctly
described
as a rough and tumble. Nevertheless the main actors in the
fight were clearly seen by all the Crown witnesses. Moreover the main
actors themselves do not deny taking some active part in the fight.
The main actors in the fight are the four accused before Court.

The evidence against A1 is that he first had a

quarrel
with the husband of P.W.4. It was during that quarrel

/ ...

-13-

that a certain person was seen taking out a knife from
his sock and giving it to A1. At that time the knife was apparently
given to
him to stab the husband of P.W. with it. P.W.2 says that the
deceased was asked to interviene because he was a policeman. On the
other hand P.W.4 whose husband was involved in the quarrel says that
it was not the deceased who was asked to intervene in the quarrel
out
one Thebe Letuka. I think the evidence of P.W.4 is more reliable on
this point because she asked Thebe Letuka to intervene and
the latter
confirms this in his deposition whi3ch was admitted by the defence.
There is evidence by P.W.1, P.W.2 and P.W.5 that after
the fight
against the deceased had started A1 was seen going to the deceased
and as soon as he (A1) came near the deceased the latter
fell down.
The witnesses did not see what A1 did to the deceased but P.W.2 says
that she saw as if A1 held the deceased on the throat.
She says that
while A2 and A3 were hitting the deceased with sticks A1 was kicking
him with his shoes.

There is evidence that after doing what he did to the
deceased A1 took the gun of the deceased and went away with it. P.W.4
says that
at one stage A1 was throwing a stone at the deceased and
that after the deceased had fallen down A1 beckoned A2 and A3. When
they
came they hit the deceased with sticks.

A1 said he went to the deceased because he wanted to
stop A2 and A3 from throwing stones at the deceased but was struck
with a stone
and fell down.

/ ...

-14-

Mr. Mphutlane, attorney for A1. submitted that
the Crown has failed to prove that A1 assaulted the deceased in any
way. 1 have attempted to give
a complete summary of the evidence of
the Crown witnesses regarding the participation of A1 in the killing
of the deceased. At one
stage he was seen throwing a stone at the
deceased; at another stage he was seen coming near the deceased and
the latter fell down;
at the last stage he was seen kicking the
deceased. The most important thing is to establish exactly what A1
did to the deceased
before he fell down. No one saw exactly what he
did but circumstances indicate that he must have done something to
him. When the
body of the deceased was examined by Dr. Olusola it was
discovered that there was a stabwound on the left chest wall. The
evidence
before this Court is that just before this fight started if
was given a knife by someone and there is no evidence that any of the
accused stabbed the deceased with a knife except A1, who approached
him and caused him to fall down. It seems to me that the only
reasonable inference to be drawn from the facts proved is that A1 did
something to the deceased and felled him. That something is
that he
stabbed him with a knife on the left chest wall. It is also unlikely
that the deceased fell because he was struck with a
stones The
witnesses did not see anybody throw stones at the deceased at stage.
He was standing alone above the bank of the road
when A1 came to him.
He beckoned the A2 and A3 after he had felled his victim.

Mr. Mphutlane submitted that the Crown had not

/ ...

-15-

established any motive why A1 would wish to kill the
deceased. I think this is not quite correct because P.W.1 testified
that when
he returned from the lavatory A1 was standing at the door
of the restaurant while the deceased was coming out. A1 pointed at
the
deceased and said, This one caused my arrest for dagga."
Deceased did not answer him but went to the bus stop. It seems to
me that A1 had a motive and when he discovered that the deceased was
being attacked by his friends he found an opportunity to revenge.
In
fact if it had not been for A1's attack upon the deceased it is quite
clear that he would have reached Spar Supermarket because
his
assailants were still below the bank of the road when A1 came to him
and felled him.

A1 was very aggressive that day and was prepared to
attack other people for no apparent reason. He first of all became
very aggressive
to the husband of P.W.4 and threatened to kill him.
That was the time he was given the knife.

I shall deal with common purpose amongst the accused at
a later stage of this judgment. The story of A1 that he was hit on
the chest
or on the solar plexus is not true. All the people who were
there did not see that happen. of the Crown witnesses admits that A1
fell with the deceased. But that does not mean that he was struck
with a stone; he fell when he stabbed the deceased with a knife.
It
cannot reasonably possibly be true that when A1 rose he straight away
received a report from one Thabo Tsukulu that a certain
man had taken
the gun and that he (A1) chased that man.

/ ...

-16-

His alleged intention was to protect the deceased from
the attack by A2, A3 and A4 who were throwing stones at the deceased.
How could
he leave the deceased lying there and being belaboured with
sticks and then concentrate on the recovery of a gun? And having
found
the man who was running away with the gun let him go scot-free
without even asking him his name? A1 was seen by many witnesses
taking
the gun of the deceased and going away with it.

A2 and A3 have no defence to the present charge. Their
story that the deceased fired at them when they asked A4 what had
happened
to him is false beyond any reasonable doubt. At the time
they joined the fight the deceased was already retreating from the
onslaught
by A4. It is not even. true that they threw stones at the
deceased after A4 had told them that he had been shot. They just
joined
in the throwing of stones when they saw that A4 was doing so.
There is no question of self-defence as far as A2, A3 and A4 are
concerned.
The deceased was obviously trying to stop them from coming
to him by firing at the ground infront of to try to scare them away
but
they just kept on advancing towards him. One of the witnesses
said she could see made going up as the deceased's bullets hit the
ground. It is common cause that one of such bullets hit A4 and
grazed him on the side of the trunk. They followed the deceased for
a
long distance of about one hundred paces according to P.w.1 and went
to him above the bank of the road and belaboured him with
sticks
after A1 had beckoned them. A2 and A3 say that when they came to the
deceased he was sitting down and doing nothing but still
holding a
gun.

/ ...

-17-

A2 and A3 cannot claim that when they left the road and
found the deceased above the bank and sitting there without posing
any danger
to their lives, they were entitled to belabour him with
their sticks in self-defence.

In Rex v. Attwood, 1946(1) A.D. 331 at p.340
Watermeyer, C.J. said:

" The accused would not have been entitled to an
acquittal on the ground that he was acting in self-defence unless it
appeared
as a reasonable possibility on the evidence that accused had
been unlawfully attacked and had reasonable grounds for thinking that
he was in danger of death or serious injury, that the means of
self-defence which he used were not excessive in relation to the
danger
and that the means he used were the only or least dangerous
means whereby he could have avoided the danger."

It is trite law that where an accused exceeds the bounds
of reasonable self-defence and kills his assailant may be found
guilty of
culpable homicide despite the fact that the killing was
intentional (R. v Molife, 1940 A.D. 202 at 204.205).
However, if the excess was immoderate a verdict of murder will be
returned (R. v Mhlongo, S.A.(A.D S.A.
574 (A.D.) at 581).

In the instant case the question of self-defence does
not arise. A2 and A3 were aggressors right from the

beginning. They joined in a fight that did not concern
them in any way.

/ ...

-18-

Mr. Teele, counsel for A2, A3 and A4 referred to
Rex v Molibeli Rantsoti 1967-70 L.L.R 289 in
which it was held that on a charge of murder, although self-defence,
intoxication and provocation were raised
and each one was not made
out, the combination of circumstances arising from all three defences
sufficed to repel an inference of
intention to kill which was not
discharged by the Crown. That was a case in which the Court found as
a fact that the accused had
been provoked and that he had drunk a
considerable amount of liquor. In the instant case there is no
evidence of provocation or
of self defence or any intoxication to the
extent that the accused did not know

what they were doing. It can safely be accepted they
had been drinking for a greater part of that day but there is nothing
to show
that they were so drunk that they did not know what they were
doing. They seem to remember what they did that day and this is an
indication that they were not too drunk

The evidence against A4 has not been controverted in
any way because he did not give evidence. The story of that which was
put to
the Crown witnesses was that the decease found him outside the
restaurant where he was having a quarrel with another person. The
deceased hit him on the chest with the butt of a gun and ordered him
to stop the nonsense. Later A4 went to the bus stop and found
the
deceased there with his wife. He said: "Ntate, you scared me
with that gun." It is alleged that the deceased went
into the
road and said: "I can shoot you." He pointed hit gun at A4
and shot him. This story was denied by the wife of
the deceased
(P.W.1) whose version of how A4 started the fight is summed up above.
Her version was challenged in

/ ...

-19-

cross-examination but her denial convinced the Court. I
think it was unwise of A4 not to go into the witness box in order to
enable
the other side to test his story in cross-examination. I do
not mean that A4 had to prove his innocence but where there is a
strong
prima facie evidence against an accused person
at the close of the Crown case, he may be expected to give an
explanation.

In R. v. Dube, 1915 A.D. 557 at pp. 563,564
Innes, C.J. said:-

"The onus rested upon the Crown to establish her
guilt. At the same time the fact that she did not endeavour to
explain the circumstances
of suspicion which the prosecu­tion had
set up was an element which the trial Court was entitled to take into
consideration."

The case against A4 is that he threw stones and that
when he found the deceased already lying prostrate on the ground
after he had
been fatally assaulted by the other accused, he held him
and bumped his head against the ground. By so doing A4 was actually
extending
the injury already done to the head of the deceased.

The last point I wish to deal with is whether the
accused had a common purpose. In R.v. Zwakala and
another 1976 L.L.R. 221 at pp. 222-223 Mofokeng, J. summarized
the law regarding common purpose as follows:

/ ...

-20-

" In law it is clear that persons may be held
liable for the acts of each other if they act in pursuance of the
same purpose
and have agreed to share that purpose. Although persons
may pursue the same purpose, it is not common purpose until there has
been
an agreement, (R. v. Bayat and Others, 1947(4) S.A.
128(N). Moreover, to have sufficient common purpose to murder, the
persons involved need not plan together to bring
about the death of
the deceased any more than the single accused must be shown to have
aimed at the death of the deceased before
he can be found guilty of
murder. (R. v. Geere and Others, 1952(2) S.A. 319 (A)). I
therefore come to the conclusion that the two accused acted with a
common purpose when they inflicted the
fatal injuries on the
deceased. But it must be remembered that in law the basis of the
guilt of a socius criminis is his own mens rea (R. v.
Nsele, 1955(2) S.A. 145 (A) at 151: R. v. Maqeba and Others,
1959 H.C.T.L.R. 71), because on a charge of murder where common
purpose has been established it does not necessarily follow that
the
same intent or absence of it must be imputed to all who took part in
its execution. (R. v. Hercules, 1954(3) S.A. 826 (A))."

A1 aimed and stabbed the deceased on the left chest wall
which he must have known to be a vulnerable part of the body. The
force used
must have been light because the doctor said the wound did
not contribute to the death of the deceased. However, it was severe
enough
to cause him to fall to the ground. After that A1 called A2
and A3 to come and finish up the deceased. They did that by
belabouring
the deceased with sticks on the head. The evidence of
that he struck the deceased on the belly only cannot be reasonably
possibly
true. He was seen by P.M.5 Tsietsi Setheki that he was
hitting the deceased on the head. The doctor who performed a
post-mortem
examination of the body of the deceased found no wales or
contusions on the belly

-21-

of the deceased. Surely if the deceased had been struck
on the belly in the manner described by the A2 some wales or
contusions ought
to have been found on the belly.

There is no doubt that A1, A2 and A3 acted in
concideration and their intention was to bring about the death of the
deceased. A4's
participation was minimal but was sufficent to make
him a party to the common purpose. There is evidence that deceased
was still
alive when A4 came to his bumped' his head against the
ground. The head had already severely injured and the deceased was in
any
case already

In R. v. Mgxwiti, 1954(1) S.A. 370 Schreiner.
J.A. held that where an accused person has joined in an assault which
he knows to be aimed at the death
of someone else, his responsibility
for the ensuing death will depend on whether the victim was alive at
the time when the accused
joined in the assault and not on whether
the victim had or had not at that stage received mortal injuries. In
the instant case the
deceased was still alive when 44 joined.

I come to the conclusion that the Crown has proved
beyond a reasonable doubt that there was common purpose amongst all
the accused
and that they all had the request intention for murder in
the form of dolus eventual is. therefore find all the
accused guilty of murder.

My assessors agree.

J.L. KHEOLA JUDGE

-22-

EXTENUATING CIRCUMSTANCES

1. Intoxication - There is ample evidence that all
the accused had been drinking beer for almost the whole day on that
fateful
day. In their evidence before this Court they gave the exact
quantities of beer they consumed at various place in the Tsikoane and
Matukeng areas. I am satisfied that the liquor in some way affected
their mental faculties and their judgment and thereby influenced
them
in regard to the murder (S. v. Saaiman, 1967 (4) S.A. 440
(A.D.) S. v. Msila, 1966 (1) P.H., H159 (A.D.).

2. Absence of factor justifying a finding of

dolus directus. The Appellate Division held in
S.v. Sigwahla, 1967 (4) S.A. 566 (A.D.) at p. 571 that

"(a) Trial courts in their conspectus of possible
extenuating circumstances, should not overlook the fact (if it be
such) that
it is a case of dolus eventual is. (b) While it cannot be
said that this factor must necessarily be an extenuating
circumstance",
in many cases it may well be so, either alone or
together with other factors, depending on the particular facts of the
case."

/ ...

-23-

I found that there are extenuting circumstances.

SENTENCE:

A1, A2 and A3:- Sixteen (16) years' imprison­ment
each.

A4:- Thirteen (13) years' imprisonment.

DISPOSAL OF EXHIBITS:-

1. 
   The revolver shall be given back to the
   police.

   
   

2. 
   The blankets shall be given back to the
   accused from
   whom they were taken.

   
   

3. 
   Sticks are forfeited to the Crown and
   shall be
   destroyed by the police.

   
   

J.L. KHEOLA
JUDGE

29th October, 1990.

For Crown - Mr. Mokhobo

For Accused one - Mr. Mphutlane

For
three others - Mr. Teele.