C. of A.
(CRI) No. 1-3 of 1981

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

THABANG
MOHLALISI )

REFELETSOE
PHATE MPOBOLE) Appellants

TSELISO
JOHANNES ISAAC )

v

REX
Respondent

HELD AT
MASERU

Coram:

SCHUTZ,
J.A.

VAN
WINSEN, J.A.

ROONEY,
J.

JUDGMENT

Schutz,
J.A.

The three
appellants, all men in their twenties at the time of their trial,
were tried before Mofokeng J on a charge of murder and
a charge of
housebreaking. The murder alleged was that of one Bitsamang Mafifi on
or about the 8th of November 1978. The housebreaking
alleged was that
of a shop and a cafe. Mofokeng J convicted all three appellants of
murder without extenuating circumstances and
sentenced them to death.
They were also, all three of them, convicted of the housebreaking
charge and sentenced to six years imprisonment.
On appeal there has
been no attempt to disturb the conviction and sentence on the
housebreaking charge. The appeal is directed
against the murder
convictions and the sentences of death. In appealing against the
murder convictions Mr. Unterhalter, who appeared
pro deo for the
three appellants, did not contest that the three appellants
participated in the attack on the deceased which led
to his death.

As most
of the findings of the Court a quo have not been attacked on appeal
it is possible to state the salient facts briefly. During
the day of
8th November 1978 the three

2

appellants
were in company. During the following night they went to a shop near
Makoae's in the Quthing district. They already knew
that the deceased
was the nightwatchman on duty at the shop and had agreed that he was
to be rendered incapable of interfering
with their design of breaking
into the shop. To this end each of the appellants was armed with a
wire, and one of them had in his
possession a cloth. After a
discussion between them and the deceased, as had been previously
agreed the second appellant struck
him over the head with a stick.
They then set upon him and ultimately tied his hands behind his back
and tied his ankles. A gag
was inserted in his mouth and secured. As
it was this gag that caused the deceased's death, it will be
necessary to deal with the
manner of its application in more detail
later in this judgment. The deceased was then abandoned in a rondavel
and the third appellant
was left outside to keep watch. The first and
second appellants then broke into the shop and the neighbouring cafe.
Apparently
the main object of the breaking was to obtain access to
the contents of a safe which was unsuccessfully set upon with axes.
The
appellants removed 7 or 8 blankets from the shop as also 3
bottles of Limosin brandy, some packets of cigarettes and some boxes

of matches. Early the next morning the three appellants were still in
company and embarked upon a drinking spree which appears
to have
continued during the rest of the day until they fell asleep at a beer
hall where they were arrested by the police in possession
of various
of the admittedly stolen articles.

None of
the appellants elected to give evidence at the end of the Crown case
and they were convicted of murder. There­after
each of them
elected to give evidence on the issue of extenuation. During the
course of this evidence each of them admitted to
being present during
the attack on the deceased which led to his death. The question
accordingly arose during the appeal whether
this Court could have
regard to the totality of the evidence given in the Court a quo
including that given on the issue of extenuation.
The question arose
most pertinently because the main thrust of the argument for the
appellants was that an intention to kill on
the part of any one of
them had not been established. There have been conflicting decisions
in the Republic as to whether evidence
in extenuation has to be heard
prior to a decision on the merits or whether the accused is to be
given an opportunity to give evidence
in extenuation after a verdict
of murder has been brought in.

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It is
sufficient to say that the practice in Lesotho is to allow the
accused such an opportunity after verdict. This is in accordance
with
the decision of this Court in the case of R. v. Ntjanyana Phakoe
1963-66 H.C.T.L.R. 140 referred in Hunt South African Criminal
Law
and Procedure Vol. II 369. A question that arises once this procedure
is adopted is whether an appeal court is confined, in
deciding
whether a" Verdict of murder was correctly arrived at, to that
evidence which was before the trial Court at the stage
that that
verdict was entered. That question has been answered for the Republic
in the case of S. v. Mavhungu 1981(1) S.A. 56 (A.D.)
at 65. The
answer is provided in the words of TROLLIP JA as follows :

"It follows that, for the purpose of an appeal against that
verdict, the record of the evidence of the entire proceedings
must be
laid before this Court for its consideration. And in considering
whether the verdict was right or wrong this Court can
also have
regard to the evidence adduced in extenuation".

Counsel
for the appellants did not question the correctness of this decision
or its application in Lesotho. I am in respectful agreement
with the
judgment of TROLLIP JA and am accordingly of the view that in
deciding whether a verdict of murder was correctly arrived
at, this
Court is entitled to have regard also to the evidence given on the
extenuation issue.

The cause
of the deceased's death, according to the doctor performing the
post-mortem was suffocation, which was caused by applying
a piece of
tissue into the mouth. The piece of "tissue" was a cloth
which was an exhibit before the Court and which was
of such a size
that when folded up it constituted a considerable wad. The doctor
stated that

"This piece of cloth had a certain bulk, had a size which was
more than sufficient to stick deep into the mouth and to prevent
the
possibility of breathing".

He also
found swelling of the mouth and the upper part of the throat, that is
inside the throat. He did not find any injuries on
the outside of the
throat.

The
manner in which this wad of cloth had been inserted and secured was
described by Detective Sergeant Liphamamo and to a lesser
extent by
Detective Sergeant Mara, who were brought to the deceased's still
trussed up body on the 9th November. On the outside
was another piece
of cloth that had been tied around the mouth and which had been
knotted at the back of the

4

head.
Tied over this cloth was a wire that had been twisted tight, as if
with a pair of pliers. Not only was the wire tight, but
the mouth was
open with the wire apparently passing over the corners of the mouth.
Once the wire and the piece of cloth wrapped
round the mouth had been
removed, the cloth which caused suffocation was found right inside
the mouth behind the teeth. It was
42 inches in length.

On appeal
it was conceded, and in my view correctly, that the person
responsible for stuffing the cloth into the throat in the manner
that
it was, and for then securing it, had the intent to kill because
death was clearly foreseeable. The argument proceeded, however,
that
it was not possible to determine beyond reasonable doubt which of the
three appellants was this person, and, further, postulating
therefore
that each appellant had to be treated as if he were not that person,
that it had not been proved beyond reasonable doubt
that any of the
appellants was aware of the insertion of the cloth in the particular
manner that it was inserted.

In
deciding whether the essential elements of the crime of murder,
namely intention to kill has been established against the appellants

it is necessary to consider the state of mind of each separately.
Unless an intention to kill has been established against any

particular appellant, he cannot be convicted of murder. Although the
necessary intent may be inferred, there is no substitute for
actual
intent in the crime of murder. The principle of versari in re
illicita to which reference will be made below has never,
in modern
practice, had application to the crime of murder.

It
therefore becomes necessary to consider the case against each of the
appellants separately and to inquire in the case of each
one whether
he may have been the one who stuffed the cloth into the deceased's
throat, or whether he not being that one, was aware
that one of the
other appellants had done so.

I shall
deal first with the case against the first appellant. In his evidence
in chief he said that his intention

"was not to kill a person, it merely was to steal money. I had
the misfortune of tying that person badly when I was tying
him so
that he could not be able to speak before I went to the shop".

It will
be observed that in this passage the first appellant

5

himself
assumes the responsibility for having tied the cloth over the mouth.
In the course of a confession made by him to a magistrate,
which was
not contested on appeal, he had laid the responsibility for this act
at the door of the second appellant. Under cross-examination
he
reverted, for a time, to this version, stating that it was the second
appellant who had tied the cloth over the mouth. Later
in his
cross-examination the first appellant reverted to what he had said in
chief, namely that it was he who had tied the cloth
over the mouth.
Under further cross-examination on these contradictions he claimed
forgetfulness and again tried to blame second
appellant for the act.
Notwithstanding his attempts, at times, to shift the blame for this
act on to the second appellant, I am
of the view that the first
appellant's admission that he tied the cloth over the deceased's
mouth must stand against him. This
conclusion is of importance
because it is impossible to believe that the person tying the cloth
over the deceased's mouth was unaware
of the cloth that had been
stuffed into his throat. Other passages of the first appellant's
evidence that point to intention, at
least in the sense of dolus
eventualis, relate to a conversation that he describes between him
and the third appellant when the
appellants were leaving the shop. He
says that he asked the third appellant whether the deceased was still
alive. This led to questions
which elicited answers that he was
afraid that the deceased might die. His attempt to wriggle out of
these answers by suggesting
that he really meant that the deceased
might die of cold or of having his ankles tied are quite
unconvincing. In the result I am
of the opinion that the Crown has
proved beyond reasonable doubt that the first appellant did intend to
kill. I would add that
in arriving at this conclusion I do not rely
on the evidence of the second appellant to the effect that he saw the
first appellant
place the cloth in the deceased's mouth. I regard the
second appellant as being too unreliable a witness to base any
finding beyond
reasonable doubt on his evidence. I would add that the
first appellant stated that he did not know who placed the cloth in
the
mouth, but for the reasons already given I am not prepared to
accept that evidence.

I turn
next to the case against the second appellant. As already stated, the
second appellant said that it was the first appellant
who tied the
cloth over the mouth. In cross-examination the following passages
appear:

"There
is evidence that there was a piece of

6

cloth inside the mouth of the deceased; if you saw the deceased being
tied over the mouth, you must have seen the person who pushed
that
other piece of cloth inside the mouth of the deceased? - Yes. Who
pushed it in? - It is accused No.1 himself". And later:

"You asked Thabang (No.l) why he pushed the cloth into the
deceased's mouth? - Yes. And what was his reply? - He said it does

not matter".

These
passages establish that the second appellant was well aware of the
cloth stuffed into the deceased's mouth. Mr. Unterhalter
has argued,
both in relation to the evidence of appellant No.1 and appellant No.
2 that they are such unsatisfactory witnesses
that no reliance can be
placed even on their admissions, I do not agree with that argument.
The fact that a witness is unsatisfactory
in trying to ward off the
case being sought to be made against him does not mean that
admissions that are extracted from him are
to be ignored. On the
basis of his knowledge of the cloth stuffed into the mouth, I am of
the view that it has been proved beyond
reasonable doubt that the
second appellant intended to kill.

I do not
think that it can be found with certainty who stuffed the cloth into
the deceased's mouth, but I have concluded that both
the first and
the second appellants knew of its use. The finding of intent is based
on their association with the perpetrator's
act both negatively and
positively, negatively in not removing the gag, and positively in
their continuation of their unlawful
design which had been
facilitated by the incapacitation of the deceased. An additional
positive act on the part of the first appellant
was the tying of the
cloth and wire round the mouth. If either of them was the one who
stuffed in the cloth then his intent would
follow from that act.

The other
elements of the crime of murder being clearly established I therefore
come to the conclusion that the first and second
appellants were
rightly convicted of murder.

I turn
now to the case against the third appellant, again with particular
reference to intent. In his evidence in chief, he said
that he did
not know about the cloth in the mouth and that the first time that he
learnt of it was at the

7

preparatory
examination. In cross-examination he admitted that he saw the cloth
being tied over the deceased's mouth at the stage
that he was at the
deceased's waist. He denied, however, that he saw the cloth that was
placed inside the mouth. I have grave suspicions
as to the truth of
this denial particularly in the light of what the third appellant did
admittedly see. I also suspect that the
third appellant had knowledge
of what was done to the deceased because I think it likely that the
deceased's struggle for breath
after the cloth had been applied would
have been observable to any bystander. However, there is a lack of
medical evidence on this
score. In the result much as I suspect that
the third appellant had the intent to kill just like the other two
appellants, I am
unable to find that it has been proved beyond
reasonable doubt that he so intended.

If the
third appellant is not to be convicted of murder, the question
arises, what is the proper verdict? The Crown contends that
the
verdict should be culpable homicide. For the appellant it is
contended that the verdict should be no more than assault with
intent
to do grievous bodily harm. For the appellant it was contended that a
verdict of culpable homicide could only be based upon
the versari in
re illicita doctrine, that this doctrine had been overthrown in the
Republic - S. v. Van der Mescht 1962(1) S.A.
521 (A.D.) and S. v.
Bernardus 1965(3) S.A. 287 (A.D.) - and that the same should be done
in Lesotho, The line of decisions in
the Republic has not gone
uncriticised - see the majority judgment of Schreiner P. in Annah
Lokudzinga Mathentwa v. R. 1970-1976
Swaziland Law Reports 25. In the
light of the conclusion which I have reached on the facts, I find it
unnecessary to find whether
the versari doctrine still forms part of
the law of Lesotho, or more exactly, whether what has been called the
traditional definition
of culpable homicide, namely death caused by
an unlawful act, but without intent to kill, should be accepted, or
continue to be
accepted, in Lesotho.

The
principle laid down in Bernardus's case (supra) is that it is not
sufficient in order to prove culpable homicide to establish
that
death was caused in the course of an unlawful assault. It is
necessary in addition to establish that the accused ought as
a
reasonable man to have foreseen the possibility of death. In my view
as against the third appellant that test has been satisfied.
There
was not merely an unlawful

8

attack
but a violent one to the third appellant's knowledge. To the
knowledge of all the appellants the deceased was to be struck
with a
stick, which was done. Thereafter two of the appellants in turn
throttled him. There is no evidence that there was any agreed
limit
to the violence to be employed in subduing and silencing the deceased
which was essential to the common purpose that the
appellants had
formed. Once that was so the third appellant ought, as a reasonable
man, to have foreseen the possibility that the
attack might end in
death, particularly after the deceased offered strong opposition to
being subdued. I am therefore of the view
that the necessary
culpability on the third appellant's part has in any event been
established, and that he should be convicted
of culpable homicide.

It was
submitted on behalf of the appellants that despite the finding of the
trial Judge to the contrary certain extenuating circumstances
existed
in the case of first and second appellants. It was argued that he had
misdirected himself in concluding that appellants
directly intended
and desired to kill the deceased and that he should have found that
the encompassment of the death of the latter
was not contemplated by
either of these appellants. The evidence in my view discloses an
intention on the part of the appellants
to neutralize the possibility
of any intervention by the deceased in their plan to break into the
shop and cafe. The method decided
upon by them to achieve this object
was to bind the deceased's hands and feet with wire procured by them
for this purpose and to
place a gag over his mouth by means of a
cloth in the possession of third appellant. There is no evidence that
appellants premeditated
the pushing of a cloth down the throat of the
deceased. Had the appellants decided to kill the deceased there would
have been no
reason to tie his feet and hands and gag his mouth. The
evidence does not exclude the reasonable possibility that the act of
putting
the cloth down the throat of the deceased was undertaken by
one or other of first and second appellants when it appeared that
they
were not succeeding in silencing him. This action, as was said
earlier in this judgment, was undertaken regardless of the fact that

the perpetrator must have and therefore did know that this would
result in the death of the deceased even though this result was
not
desired by appellants. Such being the circumstances the Court a quo
should have found that the

9

perpetrator
acted dolo eventualis and that it was with a similar intention that
the other appellant, be it first or second appellant,
identified
himself with such act.

I find
therefore that there was no direct intention on the part of first or
second appellant to kill the deceased. The question
accordingly to be
considered is whether the fact that appellants did not premeditate
the killing of the deceased but acted dolo
eventualis constitutes, in
the context of the circumstances of this case, an extenuating
circumstance. It is trite law that a finding
that a murder was
committed with only a constructive intent does not by itself and
without more establish an existence of an extenuating
circumstance.
See S. v. Sebiko 1968(1) S.A. 495(A.D.) at p. 497 B-D; S. v. De Bruvn
ed 'n Ander 1968(4) 498 (A.D. ) at p. 500 E-G.
On the other hand such
a finding may correctly be had regard to and in conjunction with
other relevant circumstances present in
a particular case in order to
determine whether there are factors rendering the conduct of the
appellants less blameworthy. The
other relevant circumstances present
in this case are that the killing of the deceased took place as a
consequence of a decision
by appellants to break into the shop and
cafe and the attack on the deceased by appellants, one of whom as
armed with a stick,
was one which regard being had to the former's
age, put his life at risk. Despite this risk the appellants did not
hesitate to
put their plans into execution and first and second
appellants acted in callous disregard of the life of the deceased in
their
determination to gain their ends. Regard being had to such
circumstances the absence of dolus directus on their part cannot
avail
them as an extenuating circumstance. Compare S. v. Nkosi
1980(3) S.A. 825 (A.D.) at p. 829 A-B; Sello Lemphane v. R. 1980(1)
L.L.R.
57 (C. of A.).

In the
light of the aforegoing the appeals of the first and second
appellants against their convictions for murder without extenuating

circumstances and their sentences of death are dismissed. The appeal
of the third appellant against his conviction for murder without

extenuating circumstances succeeds, and there is substituted therefor
a conviction of culpable homicide. The appeals of all three

appellants against the housebreaking conviction and the sentence of
six years imprisonment are dismissed.

In
respect of his conviction for culpable homicide

10

the third
appellant is sentenced to ten years imprisonment, such sentence to
run concurrently with the aforementioned sentence of
six years
imprisonment.

W.P.
Schutz

I agree
Signed: .....................

W.P.
SCHUTZ

Judge of Appeal

L.de V. Van Winsen

I agree
Signed:.....................

L.DE
V. VAN WINSEN

Judge of Appeal

F.X. ROONEY

I agree
Signed: ...................

F.X. ROONEY

Judge of the High Court

Delivered
this 13th day of October 1981 at MASERU

For
Appellants : Mr. Unterhalter

For
Respondent : Mr. Kamalanathan