C. of A.
(CRI) No. 1-2 of 1980
LESOTHO COURT OF APPEAL
Appeal of :
1. NTETI MAKAMOLE )
2. TENTENKI RABIRI) Appellants
3. PENYA BINYANE )
appellants were indicted in the High Court on a charge of murdering
one Letsatsi Moorosi, to which they all pleaded not
guilty. All the
appellants were found not guilty of Murder, but the first appellant
was found guilty of Culpable Homicide and sentenced
to 10 years
imprisonment, the second and third appellants were found guilty of
being accessories after the fact to the offence
of Culpable Homicide
and were sentenced to 5 years imprisonment (of which 2 years were
suspended subject to certain conditions)
and 2 years imprisonment
(the whole of which was suspended subject to certain conditions)
respectively. The first and second appellants
appeal to this Court
against both their convictions and sentences whilst the third
appellant appeals against his conviction only.
In the comprehensive
judgment of the Chief Justice who tried the case he referred to the
appellants as Al, A2 and A3 respectively
and I shall adopt the same
terminology in referring to them.
events which led up to what may be described as the deceased's last
journey are, if I may be permitted to say so, admirably
set out by
the learned Chief Justice, and I can do no. better than repeat what
"Letsatsi Moorosi(the deceased) who was aged betv;een 40-50
(according to the post-mortem report Exhibit A) was employed by
Makamole (Al) as a herdsman in the village of Auplass in the district
of Qacha's Nek, not far from the Senqu (Orange) river.
A1 is a well
to do man and a church elder who owns 3 cafes, cattle, sheep and
goats. One of his goats, a billy goat, was an angora
R65), unique in that village, and in great demand as a mate for other
ordinary goats. In A1's household at the time
giving rise to these
proceedings was a schoolboy Refiloe Mongali(PW5) aged between 12 and
15 who was placed there by his father
(then a friend of A1), and, in
his (the boy's) spare time, assisted in herding Al's cattle.
According to Refiloe some time towards
the end of May 1978, (exact
date not established) the deceased reported to A1 that the angora
goat had gone astray and was missing,
A1 told the deceased to mount a
search to find it and on three successive days the deceased came back
to report that he could not
trace it. On the fourth and last occasion
A1 allegedly told the deceased "You have eaten it". The
deceased denied this.
A1 tied the deceased hands with a thong and
proceeded to whip him. The deceased was drunk. He lay prostrate
and A1 instructed Refiloe to revive him by
pouring water over him which the boy did. On the following day the
deceased simply left
A1's employ and moved to Matseliso's village,
perhaps a few miles away, but across the Senqu, and found employment
there. A1 denies
this incident. In view of later events the
deceased's decision to leave A1's employment is consistent with
having received rough
treatment by the hand of his employer and I
have no hesitation in finding that the boy, whose evidence was
received on oath, is
telling me the truth".
here interpose to say that I fully agree with the learned Chief
Justice's finding on this point.
Judgment then proceeds :
"Al reported to the chief of Auplass chieftainess Maletapata
Makhaola (PW2) about the missing angora. There is no doubt that
was able to trace the whereabouts of the deceased, and requested a
letter from his chieftainess addressed to chieftainess-Matseliso
the village bearing her name across the river to apprehend the
deceased who was supposed to have hidden, or stolen or eaten
not matter which) the angora goat. This errand was executed by
Tentenki Rabiri (A2) and another man called Moepe Tsekela
as a witness, A1 provided the two men with horses (his own), and,
armed with the letter, both left for Matseliso's village
4th June 1978 at about 10 a.m.. On reading the letter Matseliso
caused the deceased, who was in the veld herding cattle
employer, to be brought before her and she placed him in the custody
of A2 and Moepe who marched him to chieftainess
Maletapata's place at
Auplass. They reached there at about 3 p.m. on the same day.
A1 was not at chieftainess Maletapata's house when the deceased
arrived in company with A2 and Moepe
"but a messenger was sent to fetch him. Al had apparently just
left church. Al says that when he came the deceased was already
handcuffed, A crowd had in the meantime converged at chieftainess
Maletapata's place to watch the proceedings against the "thief".
Chieftainess Maletapata testifies that the deceased said that he will
speak the truth in front of her. He said words to the effect
had "eaten the goat" or that it was "in his stomach".
She then told the deceased that she cannot send
him to stand trial in
court unless he produced an "exhibit". At this stage,
according to the chief-tainess, the deceased,
who was until then
submissive, became suddenly "aggressive" and manifested
symptoms of "mental inbalance".
He got up repeating to
himself "I shall speak the truth, the goat is in my stomach"
several times. It then occurred to
her that his behaviour was that of
a person who wants to "escape" and accordingly she ordered
that he be handcuffed.
This was done with proper handcuffs which were
issued to her by the police to carry out her duties. The "exhibit"
the deceased was supposed to produce was the angora goat's skin
(he told her he had eaten the head) and he indicated that he had
buried it somewhere near the river. The chieftainess says she
instructed her messenger Tsekela Khomoeamola (PW3) to accompany Al
and the deceased to find the skin. She was aware that thieves are
often molested by their captors and warned her messenger Tsekela
Al not to "assault" the deceased. As we shall see in a
moment as soon as the party of three (i.e. A1, the deceased
Tsekela the messenger) left her house, they were joined by A2, Penya
Binyane, (A3), a youth called Makalo Taeli (PW4), Tsekela
and one Musia who was not called as a witness. All members of the
group that accompanied the deceased on his last journey
on earth were
subjectively convinced that he had actually eaten the goat, after all
he has "confessed" to the chieftainess.
The goat however
was in fact alive and well(and still is) albeit entrapped in thick
bush in the veld not far away from Al's cattle
post. It was found by
the police on the following day 5th June 1978. A1 was not present at
the time and I reject his contention
that it was hidden or tied up,
and even if it was, the issues remain unaffected.
In truth the deceased did not of course confess. He said in Sesotho
"Morena oa ka ke se ke le litabeng ha ho sa na thuso"
words of a man, as my assessors explain to me, who finds himself
surrounded by a lynch mob who despaired of getting justice
only person who could have helped him establish his innocence and who
"confessed" in the hope that he may placate
the crowd. The
deceased was not "mentally unbalanced". All the witnesses
say he was perfectly normal except for his drinking
"symptoms" he displayed were those of a person in extreme
anguish and distress, if not in fear of losing
his life, when told to
produce a non-existent exhitit. The chieftainess, in my opinion,
cannot escape moral blame for what happened
later. She tailored her
evidence to suit her convenience".
regard to the last paragraph of this quotation from the Judgment,
here again, a reading of the record satisfies me that the
Chief Justice's findings and comments are more than fully justified.
6 or 7 p.m. the same evening i.e. the 4th June 1978 Al, and certain
others including A2 returned to the chief-tainess.
Her evidence reads
"Who returned? - Accused No.l and Tsekela Khomo-Ea-Mola, they
arrived Tsekela Khomo-Ea-Mola, Tsekela Kotla and Makalo Taelo
They came together? - They arrived together, carrying wet blankets.
Who was carrying a wet blanket? - They were carried by accused No.2
and Makalo but I was frightened because they had already reported
that somebody had dropped himself in water.
Who was the first man who told you that someone had dropped in water?
- It was accused No.l.
What did he say exactly? - He said "these boys say that the
deceased had dropped himself in water when I...... And at that
when I got this report from accused No.2.
From accused No.3 or accused No.1? - I got the report from accused
No.l and he was reporting that these boys have told me as I
up the steep and it was accused No.3 who told me that the deceased
had dropped himself into water.
This is Penya Binyane? - Yes, accused No.1 was at the top of the
steep and accused No.3 was at the middle and he shouted at the
accused No.1 and reported the incident to him, No.1.
And was No.3 present when No.1 told you this message? - No.
He was not among the group who came to you last? -He was not there.
The people who came to you at six o'clock were as follows : Accused
No.1, your messenger Tsekela, one called Tsekela Kotla, Makalo
and the second accused Tentenki Rabiri? - That is so.
So when accused No.1 gave you this message No.3 was not there? - That
And then after getting that message were you given the blankets? -
Yes when I came out they placed the blankets on the floor.
Whose blankets? - The deceased blankets. Both of them? - Yes.
The deceased had two blankets? - While he left me he was wearing two
And these two blankets were handed to you? - Yes. They were wet? -
Yes, they were very much wet.
"You said they put the blankets down, who actually-handed you
the blankets? - These people were standing in a group and the
blankets were dripping and I did not see exactly who it was who did
put them down and my house is rather very small.
I don't know who put them down, thanks.
And then what did you do? - After accused No.l had made an
explanation, I then asked for an explanation directly from the
whom I had directly sent.
That is Tsekela? - That is Tsekela Khomo-Ea-Mola.
Now, this explanation accused No.l made is it the explanation you
have just given to his Lordship?
That is so.
What did you actually say to your messenger? - I said to my
messenger, "please explain exactly with whom were you down there
when accused No.l was not there, explain exactly what took place".
My Lord the messenger will be coming I would like to live(sic)
Did he give you an explanation? - Yes.
And then what did you do? - I then wrote a letter reporting to the
police, and this matter was taken to the police by Makalo Taelo.
I am a little bit confused about the blankets or the accused No.l
blankets? - These blankets belong to the deceased and Tsekela
explained that he took off these blankets from the deceased as the
deceased was trying to throw himself into water. And he was
save the deceased and when he grabbed him by the blankets the
deceased managed to go off the blankets into water.
When these people handed the blankets or brought the blankets, did
you see the handcuffs? - No the handcuffs were still with
account as Mr. Kuny who appeared for the appellants stated is not
entirely satisfactory - but A2 in cross-examination gave
following evidence with regard to this meeting with the chieftainess
hadn't explained what took place at the river and when you got to the
chieftainess's place you didn't explain what took
place/at the river,
It is because when we got to the chieftainess . place accused No.l
tried to explain but the chieftainess stopped me and said
would get explanation from the messenger, Tsekela. After Tsekela had
given his explanation we confirmed what he had said to
that's what the chieftainess said is what you confirmed? - That is
the truth of what took place that day.
explained to the chieftainess that Makalo went into the water.
Tsekela and you got into the water, did you go into the water when
Makalo was in trouble? - I did not because I'm not a
"So Makalo managed to get out himself although he wcs in
difficulty? - He managed and then when I got hold of him he was
You told all these points to my learned friend, did you? - I did. I
told him that we were three at the river and deceased fell
And Makalo fell into the water, you told him too? - I told him that
we could not go into the water and revive him.
When the police came the following day, you went with them to the
river? - I went with the village men to the river to show the
where the deceased had dropped himself into the river, the police
arrived later in the company of the messengers of the chief.
You spoke to the police, or they spoke to you? -Yes I spoke to them
after they later they told me that I followed him after Makalo
had taken the message to the police.
Why didn't you tell them about the incident? - I had explained to
light of subsequent evidence it is clear that the account of the
deceased "dropping himself in the water" given
chieftainess by Tsekela and A1 which according to A2's own evidence
"we confirmed" was a false account and was
given in order
to cover up what had really happened and how the deceased had met his
to the events as related by the learned Chief Justice's Judgment :
'The villagers as well as the police tried to find the deceased's
body. The Senqu river at that time of the year (mid winter) was
in spate. Indeed it could have been crossed at some points on foot,
but in that stretch of the water where the deceased allegedly
was a "koetsa", i.e. a whirlpool. It was a dangerous spot.
No one dared go into it but on about the 17th July
1978 the whirlpool
having cleared somewhat the deceased gum boots could be seen in the
deep. Some 4 days later," on the 21st
July 1978, his body was
seen floating, some distance further down the river. It was
retrieved. The deceased was still handcuffed
and had his shirt and
trousers on. The police took the body to Qacha's Nek mortuary for a
post-mortem. Dr. Zaal(PWl) was on duty.
According to detective
trooper Khasoane (PW6), who was present throughout, it was the
mortuary attendants who cut open the deceased
body. Then the doctor
came "and had a look inside". The doctor testifies that he
was told that the deceased drowned.
The body was well preserved even
though it must have been in the water for over six week's. The doctor
put the cause of death as
being due to "drowning". He added
however that "classical" symptoms of death by drowning lay
in the presence
of water in the lungs. He did not find water in the
lungs. When taxed he
"advanced the proposition that the deceased may-well have died
when he first came into contact with the water. This is of
possible -(see for example Glaister, Medical Jurisprudence and
Toxicology 10th Ed, p.150 para 3). The doctor, a new graduate
the University of Leiden, did not really have much experience and he
complained about the lack of equipment and facilities
at Qacha's Nek
hospital. All what can be said is that the examination was not
forensically thorough. The scientific cause of death
has not been
satisfactorily proved. I will accept however that except for peeling
of the skin there were no external injuries on
certainly a matter for regret that, as pointed out by the learned
Chief Justice, the post-mortem examination was conducted
inexperienced medical officer. Whilst I appreciate the difficulties
of obtaining the services of qualified pathologists to
post-mortem examinations, it is a matter of concern which I have
previously raised with the appropriate authorities,
that the Courts
are increasingly being troubled unnecessarily and both the Crown as
well as accused persons may be prejudiced as
a result of inadequate
and unscientific post-mortem examinations being conducted. It is to
be hoped that some steps can be taken
as soon as possible to remedy
this unsatisfactory state of affairs.
learned Chief Justice referred to a passage in Glaister, supra. This
passage was not put to the doctor in evidence. The Court
have been in error under those circumstances in relying on what was
said by Glaister, Hoffmann South African Law of Evidence
p.80 says :
"The court is not entitled to treat the author of the book or
article as another witness and make use of passages to which
expert has not referred or which have not been put to him in
authorities referred to by Hoffmann on the same page. Be that as it
may however, that does not seem to me to be of any importance
present case, because there can be no doubt that the deceased died
from the sudden exposure to and immersion in the cold
salient facts and all the evidence given by the Crown and defence
witnesses are fully set out by the learned Chief Justice at
p. 129 et
seq of the record and need not be repeated by me. Suffice it to say
that the learned Chief Justice accepted the evidence
of the Crown
witnesses that when the party consisting of Tsekela, Al and the
deceased left the chieftainess
for the skin of the goat which was supposed to have been eaten by the
deceased they were joined first by A2, by one Tsekela
elderly man, Makalo Taeli the youth, and a little later on by A3 and
one Musia. Al and A2 had procured whips. The party
was first led by
the deceased, who was handcuffed, to Al's cattle post and
produced some skins - but not the skin of the missing
deceased, who was continuously urged to produce the skin of the
angora goat then said he had hidden it in sand at the
river bank, and
the party proceeded downwards to the river. Al and A2 whipped the
deceased and A3 felled him and choked him. Kotla,
A3 and Musia fell
out and decided not to go any further. Consequently only five persons
reached the river, i.e. Al, A2, Tsekela
(the messenger) Makalo Taeli
(the youth) and the deceased. The deceased went through the motions
of searching in the sand to find
the skin first in one place, then in
another. Al wielding his whip cornered the deceased at the edge of
the water, and holding
him by the blankets, whipped him on the body,
again urging him to produce the skin. The deceased to avoid further
backwards, until he fell into the water. I
should here mention that on the day after the drowning Trooper
Khasoane inspected the
scene and noticed on the sandy river bank the
marks of gum boots going backwards towards the water. This is of
course of significance
because it corroborates the account given by
the Crown witnesses as to how it came about that the deceased fell
into the water.
deceased fell into the water his head bobbed up and down two or three
times and then he went under. According to Makalo
he showed concern
about the deceased's fate, but Al said "Leave him, let the dog'
evidence accepted by the learned Chief Justice there is no doubt that
Al was rightly convicted of culpable homicide. The
is. riddled with improbabilities, one at least bordering on an
absurdity. I refer to the evidence of Al that he
stopped on a hillock
short of the cattle post and the others proceeded to the river. His
reason for stopping was that he had been
wearing tight shoes and had
sore feet. The learned Chief Justice was in my judgment fully
entitled to reject the defence evidence
appears that the deceased fell into a whirlpool in the river, and
even if Al was not aware of the existence of this
there can be no doubt that he should, as a reasonable man, have
foreseen that, in forcing the deceased into a deep fast-flowing
in mid-winter, handcuffed as he was, he might drown. There was no
novus actus interveniens between the whipping of the deceased
falling into the river and drowing.
these circumstances there can be no doubt that Al was guilty of
consider it desirable to mention one aspect of the learned Chief
Justice's treatment of the two main Crown witnesses, Tsekela
messenger and Makalo the youth. He said that even if they were not
accomplices, they were certainly accessories after the fact,
not in much better position. Consequently he treated their evidence
with the utmost caution and warned himself and his
assessors of the
dangers inherent in accepting their evidence. He treated them as
accomplices and stated "Accomplices do not
of course corroborate
each other". This is not strictly correct cf. Hoffmann op. cit
p. 401 R. v. Thielke 1918 A.D. 373 and
378/9. However it is apparent
that the learned Chief Justice before accepting the evidence of these
two witnesses scrutinized and
analysed their evidence with great
care, and I can find no ground for differing from him in his
acceptance of their evidence and
the positive rejection of the
It is now
necessary to deal with the cases of A2 and A3 who were found guilty
of being accessories after the fact.
rightly acquitted of being socii criminis because it is clear that
although they both unlawfully assaulted the deceased,
dissociated themselves at a certain stage from A1's conduct which
brought about the death of the deceased.
In so far
as A2 is concerned the learned Chief Justice found that he was guilty
of being an accessory after the fact to Al's act
as on the evidence
he did his best to help Al escape punishment. The extract from A2's
own evidence quoted above shows quite clearly
that he was party to an
attempt to cover up before the chieftainess Al's unlawful conduct.
And there is the further fact that A2
carried the deceased's blankets
to the chieftainess. Does this constitute him an accessory after the
fact? As Burchell & Hunt
Vol. I p. 370 point out, before a person
can be so constituted both actus reus and mens rea are required.
learned authors state that in so far as the actus reus is concerned
this is satisfied if any person who after the crime "intervenes
to help the perpetrator to evade justice (R. v. Mlooi 1925 A.D. 131
at 134) or "intervenes and assists the criminal to escape
detention" (R. v. Von Elling 1945 A.D. 234 at 238, R. v. Harmse
1944 A.D. 295 at 299, R. v. Munango 1956(1) S.A. 438(SWA)
Their statement of the law is fully supported by the authorities
referred to by them and I accept it.
In so far
as mens rea is concerned Burchell & Hunt op cit. at p.372 after a
discussion on the subject conclude that the necessary
mens rea is
supplied if the accused associated himself with the crime knowing of
its commission, regardless of whether his purpose
was to benefit
himself on the principal offender. In the present case in my opinion
the facts fully justify a finding in so far
as A2 is concerned that
he was an accessory after the fact to the crime committed by Al. He
knew what Al had done and he assisted
in the cover up attempt to
which I have referred above. The fact that in the result his
assistance was of no avail and the principal
offender was apprehended
and convicted is irrelevant. Cf. the Privy Council decision in Nkau
Majara v. The Queen 1954(AC) 235 (PC)
also reported in 1954
H.C.T.L.R. 38. I therefore consider he was correctly convicted.
In so far
as A3 is concerned however he was not a party to the cover up. It is
true he had taken part in the assault on the deceased
correctly found by the learned Chief Justice his assault had no
bearing on the cause of the deceased's unlawful death which
place later at the river. The learned Chief Justice however
considered that A3 took part in an unlawful act and had given
principal offender assistance. He thus, so the Judge thought,
associated himself in the broad sense of the word with the offence
committed. He referred in this connection to Nkau Majara, supra.
for the Crown Mr. Muguluma found it difficult to support the
conviction in respect of this appellant. He pointed out that
evidence showed that all that A3 had done was to choke the deceased
near the cattle post but that A3 did not go down to the
there is nothing to show that he knew what had happened there. There
is nothing to show that he either actively or passively
himself with the crime committed by Al, (cf. Nkau Majara, supra),
A3's assault was independent of and quite separate
from the drowning
carried by Al of which as stated above he had no knowledge. Counsel
for the Crown submitted
there is no link between A3's acts and the crime in any material
respects, and that there is no evidence that A3 associated
with the crime committed by Al at the river. We agree with the
attitude adopted by Mr. Muguluma; and consider A3's appeal
It is now
necessary to consider the appeals of Al and A2 against the sentences
imposed on them. It was contended by Mr. Kuny that
the sentence of 10
years imprisonment imposed on Al creates a sense of shock. I do not
agree. Al was guilty of a serious crime
committed under circumstances
of appalling cruelty upon a defenceless and humble labourer. The
sentence was of course a severe
one but was in the circumstances, in
my opinion, fully merited.
As far as
A2 is considered his guilt was merely based upon his association with
Al and the chief's messenger in the telling of a
false story to the
chieftainess and to the carrying of the blankets. There is ground on
the evidence for finding that he was possibly
afraid of what Al, a
powerful and wealthy member of the community might do to him if he
did not go along with Al's false account
of what had actually
happened at the river. The learned Chief Justice does not appear to
have considered this aspect of the matter.
Nonetheless a substantial
sentence should be imposed in order to make it clear that anti social
conduct which hinders or is designed
to hinder the discovery of crime
cannot be tolerated. In my opinion a sentence of 3 years
imprisonment, of which one year should
be suspended would meet the
justice of the case.
result I would make the following orders :
appeal of Al against conviction and sentence is dismissed.
appeal of A2 against conviction is dismissed but his appeal against
sentence succeeds. The Judgment of the Court below in
sentence is altered to read "3 years imprisonment of which one
year is suspended for 3 years on condition that
he is not convicted
of an offence involving violence during the period of suspension".
appeal of A3 succeeds and his conviction and
are set aside.
Judge of Appeal
L. de V. van Winsen
L. DE V. VAN WINSEN
this 12th day of January 1981 at MASERU
Appellants : Mr. Kuny
Respondent : Mr. Muguluma
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