CRI/T/21/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX
Plaintiff

V

HARETEKE
TLALI Defendant

JUDGMENT

Delivered
by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 11th day of
October 1985

The
accused before me Hareteke Tlali is indicted upon a charge of
murdering Phatela Nkoko (deceased) on or about the 28th October
1983
at or near Ha Setenane in the district of Maseru.

The
accused pleaded not guilty.

The
identity of the deceased, the cause of his death, the post mortem
report on his body (Exhibit A), and the knife (Exhibit 1)
which was
used in the killing (handed to Trooper Mokhali by the accused), have
been admitted in terms of s.273 of the Criminal
Procedure and
Evidence Act 1981.

It is
common cause that the accused and the deceased had been on very bad
terms from before the date that gave rise to these proceedings.
It
was not necessary to find out exactly how the dispute started and how
it developed, but it did concern allegations and counter
allegations
between the accused and the deceased of cattle thefts from each
other. The deceased had laid a complaint of assault
on his person
against the accused

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and one
Chitjana Lebamang and Lephethesang Mohlomi (a witness who gave
evidence at the Preparatory Examination and called by the
trial Court
to testify) some time in May 1983 which complaint resulted in the
arrest of the accused and the other two above mentioned
persons. They
were all released on bail pending trial but came to Maseru
Magistrate's Court for remand from time to time. They
were to appear
again on the 28th October 1983.

The
deceased and the accused and Chitjana Lebamang and Lephethesang
Mohlomi duly arrived at the Maseru Magistrate's Court on that
day.
What took place there was not established with certainty suffice it
to say that no trial appears to have taken place and the
deceased,
the accused, Chitjana Lebamang and Lephethesang Mohlomi found their
way in the afternoon to the taxi rank in Maseru and
all boarded a bus
(a 27 seater Toyota Coaster) to their respective villages and homes
in the area of Koro-Koro about 1½
hours drive away.

The
deceased was killed in the bus whilst it was in motion when
approaching its final destination.

Chitjana
Lebamang, also known as Maphoto, (he will hence­forth be referred
to as Maphoto) was originally jointly charged with
the accused, but
before the Preparatory Examination was held he died. His death was
apparently not connected with this case.

Four
persons gave evidence about the events:- 'Malehlohonolo Litjobo,
known as Nteta, P.W.1 a passenger in the bus, Ramosoanyane
Tsiu P.W.2
the driver of the bus, Masekoche Tsomela P.W.3 another passenger in
the bus, and Lephethesang Mohlomi, who had earlier
appeared with the
accused and Maphoto at the Maseru Magistrate's Court to answer a
charge of assaulting the deceased, who was also
a passenger in the
bus.

3

Nteta
testified that when she boarded the bus after lunch she found a place
in the long row at the back next to the accused and
Maphoto. The bus
is of the type that has two seats on each side of the isle and a
bench at the rear. She saw the deceased (whom
she knew well) when she
entered. He was seated in the third row. No standing is allowed, but
the driver admits allow­ing 5
persons to stand when he set off.
Nteta says that on the way passengers began to alight and she noticed
that one of the seats that
became vacant was next to where the
deceased was sitting, so she moved from the rear to the third row for
comfort and started chatting
to him. She suddenly heard the deceased
scream "Joo". "Joo" is a loud exclamation of a
person hit by an object,
expressing surprise sometimes accompanied
with pain. Nteta looked back and saw the accused holding the deceased
from the neck and
pressing him down, and next to him was Maphoto,
looking down over the deceased. She knew them both very well. Maphoto
was behind
a window seat which would put the accused in the isle
behind or near an isle seat. She ran towards the driver raising an
alarm.
When the driver stopped the vehicle she ran outside. She next
saw deceased on the ground outside the vehicle with Maphoto hitting

him with stones whilst prostrate. Accused stood nearby.

Ramosoanyane
Tsiu, the driver of the bus, testifies that he knew most of the
passengers in the bus by sight from plying the Koro-Koro
Maseru
route. On the day in question, whilst driving, he heard a commotion
(noise of persons crying and fighting) at the back and
some
passengers crowded over him, telling him to stop. He stopped by the
road side and opened the door. The passengers began to
jump off the
bus. He could not see what was happening because passengers were
blocking his view but he was

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last to
leave after his conductor. Outside he saw deceased prostrate on the
ground with his bowels protruding from his belly but
did not see how
deceased came to be there. He asked what happened and a person, not
accused, answered "This man caused us
damage". The same
person who said this (not the accused) picked up a stone and hit
deceased with it in "the region of
the head". By inference
that person was in all probability Maphoto.

Masekoche
Tsomela is P.W.3 at the trial and P.W.2 at the Preparatory
Examination. Her evidence as it appears at the Preparatory

Examination incidentally is partly mixed up with another witness and
the latter part of it should be ignored though the manuscript
has now
been corrected by the committing magistrate. She testifies before me
that she was a passenger in the bus driven by the
previous witness
and found a seat behind the driver. She knows the accused, the
deceased, and Maphoto. They were passengers in
the same bus. She
heard a male voice saying: "Stab this person man". She
could not identify the voice. On looking back
she saw the accused
holding the deceased by the shoulders pressing him down, and saw
Maphoto holding an unclasped knife in his
hand. She heard no
altercation or commotion before she heard the voice. She did not
actually see Maphoto stab the deceased but
she saw him and the
accused carry the deceased outside the vehicle with his bowels
protruding from his stomach. She saw the knife
twice, once when she
looked back and saw Maphoto holding it, and a second time, also in
Maphoto's hand, when he and the accused
were carrying the deceased to
the outside. This witness says that on leaving the bus, she "lost
her senses" and just
kept running.

Lephethesang
(who was called by the Court) was the third person apart from accused
and Maphoto who was at the Maseru

5

Magistrate's
Court on the 28th October 1983. He says that when the case did not
come for trial he left his colleagues to go shopping
and thereafter
found his own way to the bus stop and boarded the bus on his way home
to Koro-Koro. He saw the deceased and accused
and Maphoto in the bus,
but he sat close to where the accused and Maphoto were seated, i.e.
towards the rear. Lephethesang says
he dozed off and woke up on
hearing a scuffle in the bus. The bus was in motion and was
"wobbling". He thought it was
going out of control. Many
people were stand­ing and he could not see what was happening but
when the bus stopped he jumped
out. He was told what happened only
later.

The
accused's version of the incident was that he took the rear seat in
the bus next to Maphoto, Lephethesang, and Nteta, who were,
however,
drinking. Lephethesang went to sleep. Nteta, while she was still in
the rear seat, had a conversation with the deceased
about his cattle
dispute with the accused and one Selebela. Accused says he heard the
deceased say to Nteta words to the effect
that "they"
(meaning accused and Selebela) could do nothing to him even though
they were accompanied by the police. The
accused adds that deceased
further said that the remaining ones (meaning the cattle) will be
consumed. The deceased then beckoned
to Nteta to come and sit in the
vacant seat next to him and she did so. The accused says they kept up
the same conversation. I
understood the accused as implying that the
deceased was boasting about his ability to destroy or steal the
accused's cattle with
impunity because the police could do nothing
about it. The accused says that he felt "very sore in the heart"
and went
to deceased, held him by the jacket, and pressed him down,
but though he intended to assault him (using his hands) he failed to

do so, and pushed him further down the seat. The

6

deceased
bumped into another passenger. The accused says that it was at that
time that he noticed that Maphoto was next to him.
Maphoto kicked the
deceased who fell outside the bus and it was then that he (the
accused) realised that deceased had blood stains
on him and noticed a
knife in the hand of Maphoto. When he saw this sight the accused says
that he changed his mind about assaulting
deceased and having heard
Maphoto saying he had stabbed deceased with the knife he (accused)
took the knife away from Maphoto who
was about to stab deceased
again. Accused says that Maphoto picked up a stone and hit deceased
with it. In cross examination the
accused was asked if he made a
different statement to his lawyer which he swore before a
Commissioner of Oaths admitting that he
did the stabbing. Accused
denied this.

The
accused elected to call no witnesses and the defence closed their
case. The Crown then applied to call a witness, the Commissioner
of
Oaths, before whom accused swore an affidavit when applying for bail
pending trial.

Leave was
granted, and Mr. Matsoso, the Commissioner of Oaths, was called. He
read accused's affidavit (Exhibit B). It was made
on the 14th
November 1984, when Maphoto was alive, and it is at complete variance
with the evidence he gave before this Court on
oath. After outlining
the nature of his dispute with deceased about the cattle the accused
described what happened in the bus,
which included reference to
deceased's conversation with Nteta, but he continued by saying that
he and Maphoto charged at the deceased
who took out a knife. He
(accused) and the deceased then struggled for the control of the
knife which however fell between the
seats, and accused was the first
to get hold of it. The accused said that he then stabbed the
deceased. The deceased (presumably
in his dying seconds) confessed to
the accused that

7

he stole
his cattle. Accused did not elect to go to the witness box again on
this point, but in cross examination, his attorney
suggested to the
Commissioner of Oaths that he just signed the statement without
seeing the accused. Now the accused's legal representatives
at the
time of the bail application were the firm of Messrs Khauoe and
Nthethe who have since parted company. Mr. Nthethe handled
accused's
application for bail whilst Mr. Khauoe represented him at the trial.
Mr. Khauoe submitted that he was simply putting
his client's case to
the witness and it is up to the Court to make up its mind whom to
believe.

Very
well, but the accused made two statements on oath inconsistent with
each other, one to each of the partners of the firm. They
cannot both
be true. What can be said however is that the accused is a person
whose word is not worthy of belief.

The eye
witnesses to the incident did not, as we have seen, give identical
evidence. No Court can expect them to because everything
happened
suddenly. No warning of anything amiss was noticed and each passenger
was consumed in his or her own thoughts and seeing
things from
different angles at fractionally different times, but the Court
believes the evidence of all prosecution witnesses
where it varies
with that of the accused. In particular:-

1. I
   believe that there was no discussion between Nteta and deceased
   about the cattle theft dispute between him and accused. I do
   not
   believe the deceased had insulted or given offence to accused in the
   bus.

   
   

2. I
   believe that it was Maphoto who was seen holding the knife. No one
   saw a knife with the accused even though in his application
   for bail
   he said he picked up the deceased's knife

   
   

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and stabbed him with it. The Court must take into account the
evidence adduced before it and the witness puts the knife in the
hand
of Maphoto. It is possible of course that the accused had held a
knife before but no one saw him with it.

3. There
   is nevertheless abundance of evidence that accused made common cause
   with Maphoto to kill deceased. If Lephethesang was
   asleep, and I
   believe that he was, and if someone said "Stab that person man"
   and I believe that some person said it,
   and if Maphoto actually did
   the stabbing contrary to what accused had previously sworn before

   
   

the Commissioner of Oaths,the only person who could have uttered
those words would be accused for no one else in the bus had any

reason or motive to harm deceased.

4. I
   believe that the accused's participation in the crime as a socius
   criminis. This is reinforced by the evidence of Masekoche
   who
   testified that accused and Maphoto carried the body of the deceased
   and threw him out of the bus.

   
   

In my
opinion the circumstances of the killing show that a conspiracy had
been hatched by accused and Maphoto, although it could
have been on
impulse, to kill deceased. The injuries found on deceased's body at
the post mortem examination were many which included
skull fractures,
consistent with bashing with stones, and a cut wound to the stomach,
consistent with the

9

use of a
knife.

In my
opinion accused is guilty of murder and I so find. My assessors
agree.

CHIEF
JUSTICE

11th
October 1985

For
Plaintiff : Mr. Kabatsi

For
Defendant : Mr. Khauoe