C. of A. (CRI) No. 1-2 of 1980
IN THE LESOTHO COURT OF APPEAL
In the Appeal of :
1. NTETI MAKAMOLE )
2. TENTENKI RABIRI) Appellants
3. PENYA BINYANE )
v
REX Respondent
HELD AT MASERU
CORAM:
MAISELS, P.
TEBBUTT, J.A.
VAN WINSEN, J.A.
JUDGMENT
The three 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.
The 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 he stated.
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"Letsatsi Moorosi(the deceased) who was aged betv;een 40-50 (according to the post-mortem report Exhibit A) was employed by Nteti 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 (worth some 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 apparently unconscious 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".
I may here interpose to say that I fully agree with the learned Chief Justice's finding on this point.
The Judgment then proceeds :
"Al reported to the chief of Auplass chieftainess Maletapata Makhaola (PW2) about the missing angora. There is no doubt that A1 was able to trace the whereabouts of the deceased, and requested a letter from his chieftainess addressed to chieftainess-Matseliso of the village bearing her name across the river to apprehend the deceased who was supposed to have hidden, or stolen or eaten (it does not matter which) the angora goat. This errand was executed by Tentenki Rabiri (A2) and another man called Moepe Tsekela not called as a witness, A1 provided the two men with horses (his own), and, armed with the letter, both left for Matseliso's village on Sunday 4th June 1978 at about 10 a.m.. On reading the letter Matseliso caused the deceased, who was in the veld herding cattle for another 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
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"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 that he 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" which 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 and 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 and Tsekela the messenger) left her house, they were joined by A2, Penya Binyane, (A3), a youth called Makalo Taeli (PW4), Tsekela Kotla (DW1) 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" the words of a man, as my assessors explain to me, who finds himself surrounded by a lynch mob who despaired of getting justice from the 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 habits. The "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".
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With regard to the last paragraph of this quotation from the Judgment, here again, a reading of the record satisfies me that the learned Chief Justice's findings and comments are more than fully justified.
At about 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 and accused No.2.
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 time 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 was still 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 Taelo, and the second accused Tentenki Rabiri? - That is so.
So when accused No.1 gave you this message No.3 was not there? - That is so.
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 blankets.
And these two blankets were handed to you? - Yes. They were wet? - Yes, they were very much wet.
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"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 messenger 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) this explanation.
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 trying to 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 the deceased".
This account as Mr. Kuny who appeared for the appellants stated is not entirely satisfactory - but A2 in cross-examination gave the following evidence with regard to this meeting with the chieftainess :
"You 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, why?
It is because when we got to the chieftainess . place accused No.l tried to explain but the chieftainess stopped me and said she would get explanation from the messenger, Tsekela. After Tsekela had given his explanation we confirmed what he had said to the chief.
And that's what the chieftainess said is what you confirmed? - That is the truth of what took place that day.
Nobody explained to the chieftainess that Makalo went into the water.
Makalo, 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 swimmer.
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"So Makalo managed to get out himself although he wcs in difficulty? - He managed and then when I got hold of him he was already out.
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 in.
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 spot 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 who had taken the message to the police.
Why didn't you tell them about the incident? - I had explained to them".
In the light of subsequent evidence it is clear that the account of the deceased "dropping himself in the water" given to the 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 death.
To revert 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 not in spate. Indeed it could have been crossed at some points on foot, but in that stretch of the water where the deceased allegedly drowned 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
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"advanced the proposition that the deceased may-well have died when he first came into contact with the water. This is of course possible -(see for example Glaister, Medical Jurisprudence and Toxicology 10th Ed, p.150 para 3). The doctor, a new graduate from 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 his body".
It is certainly a matter for regret that, as pointed out by the learned Chief Justice, the post-mortem examination was conducted by an inexperienced medical officer. Whilst I appreciate the difficulties of obtaining the services of qualified pathologists to carry out 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.
The learned Chief Justice referred to a passage in Glaister, supra. This passage was not put to the doctor in evidence. The Court seems to have been in error under those circumstances in relying on what was said by Glaister, Hoffmann South African Law of Evidence (2nd Ed.) 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 the expert has not referred or which have not been put to him in cross-examination".
Ct the 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 in the present case, because there can be no doubt that the deceased died from the sudden exposure to and immersion in the cold water.
The 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
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to search 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 Kotla, an 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 angora. The 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 punishment retreated 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.
When the 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' die".
On this evidence accepted by the learned Chief Justice there is no doubt that Al was rightly convicted of culpable homicide. The defence evidence 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 as. false.
It appears that the deceased fell into a whirlpool in the river, and even if Al was not aware of the existence of this
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whirlpool, there can be no doubt that he should, as a reasonable man, have foreseen that, in forcing the deceased into a deep fast-flowing river in mid-winter, handcuffed as he was, he might drown. There was no novus actus interveniens between the whipping of the deceased and his falling into the river and drowing.
Under these circumstances there can be no doubt that Al was guilty of culpable homicide.
I consider it desirable to mention one aspect of the learned Chief Justice's treatment of the two main Crown witnesses, Tsekela the messenger and Makalo the youth. He said that even if they were not accomplices, they were certainly accessories after the fact, and are 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 defence evidence.
It is now necessary to deal with the cases of A2 and A3 who were found guilty of being accessories after the fact.
They were rightly acquitted of being socii criminis because it is clear that although they both unlawfully assaulted the deceased, they both 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.
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The 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) at 439). 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 but as correctly found by the learned Chief Justice his assault had no bearing on the cause of the deceased's unlawful death which took place later at the river. The learned Chief Justice however considered that A3 took part in an unlawful act and had given the 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.
Counsel for the Crown Mr. Muguluma found it difficult to support the conviction in respect of this appellant. He pointed out that the 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 river and there is nothing to show that he knew what had happened there. There is nothing to show that he either actively or passively associated 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
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that there is no link between A3's acts and the crime in any material respects, and that there is no evidence that A3 associated himself with the crime committed by Al at the river. We agree with the attitude adopted by Mr. Muguluma; and consider A3's appeal must succeed.
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.
In the result I would make the following orders :
The appeal of Al against conviction and sentence is dismissed.
The appeal of A2 against conviction is dismissed but his appeal against sentence succeeds. The Judgment of the Court below in regard to 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".
The appeal of A3 succeeds and his conviction and
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sentence are set aside.
I.A. Maisels
Signed: ....................
I.A. MAISELS
President
P.H. Tebbutt
I agree Signed: ..............
P.H. TEBBUTT
Judge of Appeal
L. de V. van Winsen
I agree Signed: ...............
L. DE V. VAN WINSEN
Delivered this 12th day of January 1981 at MASERU
For Appellants : Mr. Kuny
For Respondent : Mr. Muguluma
