C OF A (CRI) NO. 1 OF 2000
IN THE LESOTHO COURT OF APPEAL
In the matter between:
MOSEHLE MABOKA First Appellant
KELEBONE RANKHELEPE Second Appellant
v
REX
HELD AT MASERU
CORAM: Leon J.A.
Gauntlett J.A.
Ramodibedi J.A.
JUDGMENT
RAMODIBEDI J.A
The two appellants in this matter appeared before the High Court on two charges namely murder and arson respectively, it being alleged that upon or about the 1lth February 1993 and at or near Matlameng in Leribe district they unlawfully and intentionally killed one 'Maphooko Phooko (hereinafter referred to as the deceased) and there and then set her house on fire with intent to injure her in her said property.
The first appellant pleaded guilty to culpable homicide on the first count and
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not guilty to the charge of arson on the second count. For his part the second appellant pleaded not guilty to both counts.
Kheola CJ who presided in the matter found both appellants guilty as charged on both counts and sentenced each of them to nine (9) years' imprisonment. Although the learned Chief Justice had found both accused guilty on both counts he however failed to specify under which count they were being sentenced. It is not clear whether the nine (9) years' imprisonment in respect of each appellant was for murder or arson or indeed both. More about this later.
Suffice it to say at this stage that both appellants have appealed to this court against their convictions only. It proves convenient to deal with the case of each appellant separately and at this stage it is regrettably pertinent to observe that the record of proceedings including the translation thereof is of such a poor nature as to belie the importance of the case itself.
The case against the first appellant.
At the trial the Crown called only two witnesses namely PW1 'Mathabo Mathabi and PW2 'Masesu Mashili. Stripped of all its side issues the evidence of PW1 was that following the death of the appellants' brother who had been struck by lightning she proceeded to the home of the first appellant. She gave no particular reason for going there and denied the suggestion that she had gone to pay her condolences to the bereaved family, nor did she admit to having told that family that the deceased was responsible for the death by lightning as suggested by the first appellant and consistently adhered to her denial both before the Chieftainess 'Masesu Mashili (PW2) as well as the Senior Chieftainess 'Majoel Moshoeshoe.
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It emerged in cross examination that what PW2 did admittedly tell the first appellant's family though is that the deceased had insulted her (PWl's) child whom she even threatened to kill with lightning. This admission then prompted the following question by counsel for the appellants (Record page 22):
'DC.: But and (sic) also that your timing was very bad you talked about this your son at a very bad time do you agree with me that when the son of that house had been struck by lightening (sic) do you accept that?
PW1: Yes 1 did talk about lightening (sic).
DC: No, I am saying do you see your time (sic) was bad?
PW1: Yes may be I talked without realising it."
The significance of this "bad timing" is that it led to a chain reaction of events and indeed it is the case for the first appellant that his elder brother's wife 'Mamookho reported to him about PWl's visit to their family and her implication of the deceased in the death of his brother by lightning.
To return to PW1 then it is her evidence that she subsequently returned to her home and while she was there she heard an alarm by one Thato shouting: "here are people who have come to kill a person." Pressed further she modified the alarm to the following effect" "He (Thato) said people hurry here is Mosehle (first appellant) killing 'Maphooko." She duly proceeded to the deceased's place where she found her present. She had been "beaten" on her back and PW1 observed "some marks" on the deceased's back.
PW1 further testified that on the following day she was summoned to PW2 with the two appellants. PW2 then sent them to the Senior
Chieftainess's administrative court. It is here that PW1 alleges "they (the appellants) said they did
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all these because I said 'Maphooko had killed their brother." She however reiterated her denial as stated above. According to PWl's evidence the appellants then "praised themselves saying that they will ultimately kill her." She however immediately qualified this by stating it was Mosehle (first appellant) who said that. The meeting at the Chiefs place was then postponed to another date and PW1 returned to her village in the company of the deceased each finally going to her own home. She learned of the deceased's death the following morning.
Upon learning of the deceased's death PW1 hurried to her (deceased's) place where she confirmed that the deceased was dead and her house burned.
In cross-examination PW1 was consistent in her version that it is the first accused who vowed that he would ultimately kill the deceased at the Senior Chieftainess's administrative court.
The evidence of PW2 is briefly to the effect that both appellants came to her place "reporting that they chased the deceased, and when I asked them why they chased her, they told me that since someone had died in their family, who died of lightening (sic) they thought that it was just an ordinary death and then they were informed by
"Mathabo that the persnd (sic) who died in their family had been killed by 'Maphooko with lightening (sic) so they had been chasing her they wanted to kill her, thereafter they left and then arrived the deceased."
Pressed on who actually made this vow to kill the deceased PW2 testified that it was Mosehle Maboka namely the first appellant.
PW4 testified further that she then sent the appellants to the Senior
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Chieftainess where they repeated their vow to kill the deceased because she had killed their brother with lightning. PW2 corroborates PW1 that she denied ever telling the appellants' family that the deceased had killed their son with lightning.
It is further the evidence of PW2 that on the same day on which they went to the Senior Chieftainess she received a report at midnight. She also heard the deceased crying ''please Mosehle have mercy on me." She proceeded to the deceased's home where she found the latter's house already on fire. She found other villagers already there "trying to help to put out the fire and taking out the deceased out of that house." The deceased was then placed in the forecourt where PW2 observed that "she had been stabbed with a sharp object" all over the body. She was already dead. PW2 conceded that she did not see the appellants there at the time the house was burning. This was after she had surprisingly stated: "I only saw their shadows after they had picked some grass and lid (sic) them (sic) and then leave the rondavel."
In cross examination PW2 conceded that the deceased was "feared" by the villagers who alleged that she was a witch.
The Defence made the following formal admissions at the trial namely:
That "when confronted by the two accused persons the deceased run (sic) away to the home of one 'Mankhasi Mashili."
That several people found the deceased in her burning house and took her out of that house.
That "the first accused reported himself at Pitseng Police Post in connection with the death of the deceased".
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"That the first accused was arrested and given a charge of murder by No.4929 Trooper Mputsoe."
The post mortem report of the deceased was also admitted by the defence. Death was due to haemorrhagic shock caused by "multiple stab wounds 5 on the left breast penetrating the heart. Remarks: Another stab wound on right breast, burns on the body."
That completed the Crown's case.
The first appellant gave evidence in his own defence as DW1. He did not call any witnesses. The record does not show that the first appellant gave evidence on oath. This is a matter for grave concern indeed in a case as important as this. It may be that this was by design or that it has to do with the unsatisfactory nature of the record of proceedings itself. The judgment of the Court a quo however states that the first appellant gave evidence "under oath." This must therefore be accepted as the true state of affairs on the issue.
It was the evidence of the first appellant that a day after his brother was killed by lightning his sister, one 'Mamookho reported to him that PW1 had informed members of his family that the deceased had killed his brother with lightning. The first appellant testified that he was "hurt" by the report and decided to confront PW1 which he did at her home in the company of the second appellant. But before then they went to "drink" liquor in the village.
According to the first appellant's version when they tried to speak to the deceased she fled. They neither chased nor assaulted her. Instead he suggested to the second appellant that they should go to PW2's place to report that they had gone
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to the deceased "to question her" but that she fled. He emphasises that they had not gone to the deceased to fight "but in relation to the death of our brother who had been struck by the lightening (sic)". PW2 agreed to arrange a meeting between the appellants and the deceased the following day. PW1 also attended the meeting. It was at this meeting that the deceased told the Chieftainess (PW2) that the appellants chased her. He denied ever vowing to kill the deceased.
According to the first appellant's version PW2 was unable to resolve the. matter and then passed it on to the Senior Chieftainess. He once more denied the alleged vow to kill the deceased and the Senior Chieftainess adjourned the matter because his witnesses were not in attendance. They then left for home where "we passed on to drink" Sesotho beer at the home of 'Mamakoro Mokhaila leaving the place at eight o'clock in the evening. It was at this stage that he suggested to the second appellant "that we should go to 'Mamookho's (the deceased) place and ask her politely about this matter" adding "He tried to stop me from going and I told him that we were not going to fight."
It is the first appellant's evidence that he was drunk and that when they reached the deceased's home they "knocked and she opened. And I said to her we haven't come you (sic) in bad face (sic), we just want to resolve this issue such that nothing will remain lengthing (sic) about this story that had been related by 'Mathabo at my home. Instead of responding to us she insulted us saying that we were silly children and she pushed us outside her house, she further said we were satan (sic) and we will follow our brother, and my heart was hurt and I was out of control."
Asked by his own counsel what he then did the first appellant testified:
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"DW1: At the time that she pushed me I stabed (sic) her with a knife."
Despite the fact that the deceased admittedly had six (6) stab wounds the first appellant sought to give the impression that he stabbed her with a knife only once.
In cross examination the first appellant told the court a quo that he believed that the deceased had killed his brother with lightning. He cannot however explain why he went to confront the deceased except to say that he wanted "to know the truth from her." He further denied that the deceased was injured on the previous encounter with him. According to him, PW1 and PW2 are lying on this issue yet he cannot say why they should lie in this respect except to claim that he is surprised. Instead he confirms that he has never quarrelled with PW2. Nor can he explain the origin of the weal marks on the deceased's back.
The first appellant himself confirmed that he confronted the deceased and PW1 at PW2's place about the allegations relating to witchcraft and the death by lightning and that they both denied the allegations. Yet despite these denials he still admittedly went to the home of the deceased to "confront"her once more at night and in the absence of the Chieftainess. In this regard he was pertinently asked by the Crown Counsel in cross examination:-
"CC: But how else did you expect the matter to be resolved when the deceased deny ever had (sic) struck your brother by lightening
(sic)
DW1: I expected it to be solved legally."
The first appellant cannot explain how he expected the matter to be solved "legally" at the deceased's home in the cover of darkness.
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Daring the course of his cross examination by Crown Counsel the first appellant introduced another version that as the deceased pushed them away "we grappled with her." Asked whether the second appellant also grappled with the deceased he immediately changed and said "I was still with A2 but I was grappling with the deceased." It was "at that time that A2 pulled me away from the deceased saying that we should leave." In a clear suggestion that the deceased did not pose any threat to him the second appellant was then asked:
"CC: And this is when you decided to stab her? DW1: Yes my Lord."
Nor could the first appellant seriously deny that he stabbed the deceased six (6) times all of which were completely unjustified. He did however plead provocation and drunkenness. More about this later.
The first appellant further revealed in cross examination that at the time they finally left the deceased, she was shouting in her house and crying too. He elaborated that she was shouting asking for help. He was then pertinently asked :
"CC: And you did not help her after having stabbed her six (6) times? DW1: I did not do so, I left for my home."
He denied that he proceeded to set the deceased's house alight with the second appellant Significantly, however, he conceded that at that crucial time there were only the two of them there. Nor could he deny that he did not report to anybody about the fact that he had left the deceased injured in her house adding instead "this was a disgrace to me my Lord."
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The Court a quo clearly believed the evidence of PW1 and PW2 both of whom impressed it as truthful and honest. In particular the Court a quo believed the evidence in which both PW1 and PW2 corroborated each other that the accused vowed in advance to kill the deceased. Indeed the totality of the evidence in so far as the first appellant is concerned fully renders the Court a quo's finding in this regard justifiable. The first appellant stalked the deceased not only determinedly but also violently on at least two occasions. On the first occasion the deceased fled for dear life but not before she had been assaulted on her back. This was in broad day light yet the first appellant admittedly went back to the home of the deceased at night thus prompting the Court a quo to pose the question in its judgment: "How did the accused think that a person who ran away from them at day time because she was afraid of them could discuss a serious matter with them at night? No, they did not go there in order to discuss anything but to kill her as they had vowed to do so." Indeed in so far as the first appellant was concerned this was more so since at that stage the matter was already in the hands of the Senior Chieftainess and for that reason the Court a quo was frilly justified in concluding that there was altogether no reason why the accused went to the deceased's home to discuss a matter that was already pending before the Chieftainess.
Again the first appellant's conduct in proceeding to the deceased's home at night, armed with a knife, "to confront her" for the second time must be weighed against the fact that the Senior Chieftainess who was a person in authority had by that stage already warned the appellants from setting their feet on the deceased's premises. Significantly this evidence was elicited by the appellants' own counsel in the cross examination of PW1 (Record: page 23-24) in the following terms which merit quotation in full even at the expense of overburdening this judgment:
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"DC: You told this court that at the Chiefs place someone praised himself that he is going to kill the deceased? PW1: Yes. DC: Who was this? PW1: Mosehle DC: Where?
PW1: At Ha-Letsie at the Chiefs place. DC: Where was the Chief? PW1: Present. DC: Which Chief? PW1: Chieftainess 'Majoele. DC: Any other person who was there? PW 1: Yes, there were many people.
DC: And what did the Chieftainess said (sic) about this if it is true? PW1: She hadn't finished it. DC: We heard that, what did she say when she heard that the accused says (sic) he would eventually kill the deceased? PW1: She responded by saying that she should never hear them to have steped (sic) on that forecourt. DC: Which one? PW1: 'Mamookho's forecourt."
The Court a quo came to the conclusion that if a person expresses his intention to commit an act which amounts to a criminal offence and a few hours thereafter carries out the act then his intention is very clear. While each case must certainly depend on its own peculiar facts and circumstances the Court a quo was justified in taking into consideration the fact that the first appellant had earlier vowed to ultimately kill the deceased which vow he actually carried out hence demonstrating in practical terms that it was just not an empty threat. On the totality
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of the facts in this matter therefore the approach of the Court a quo cannot be faulted. This was a classical case where the intention to kill was proved by the expressed words and deeds of the accused himself. Indeed in stabbing the screaming defenceless woman six (6) times with a knife in the vital part of the body namely the chest area, the first appellant must have realised that he was killing her. He did not even offer her any help even after she was totally injured but simply vanished from the scene. All these factors as fully set out above are consistent with a pre meditated intention to kill which was for that matter expressed in words before the killing.
The phenomenon of accused persons publicly declaring their intentions to kill other human beings and carrying out such vows as a matter of fact is sadly not new in this country. See for example Blyth Monanthane v Rex 1978 LLR 447 per Maisels P. That was a case in which before killing the two deceased persons namely a European and a Mosotho the accused had said "Today I am going to kill a European and a Mosotho" and on being asked what they had done to him he stated that they wanted to "spoil" his work. Like in the instant case he thereafter carried out his expressed intention by pushing the deceased (a European and a Mosotho) off the top of the building and thus killed them. He was duly convicted of murder without extenuating circumstances and sentenced to hang. Both conviction and sentence were confirmed on appeal.
The other factor that renders Blyth Monanthane v Rex (supra) substantially similar to the present case is that the accused in that case first drank liquor and smoked dagga. Like in the instant case he then pleaded drunkenness but the trial court found that his drinking was merely to provide him with dutch courage to perpetrate the intended crime and that on the facts his faculties were still functioning
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to the extent that he was able to operate the crane shortly before causing the death of the deceased.
Although in the instant matter the first appellant claimed at the trial that he was drunk he was disbelieved by the court a quo which made a finding that this was a lie. This appellant did not call any witnesses to support his claim that he had been drinking Sesotho beer and that he was drunk. There is not even any evidence to show what quantity of Sesotho beer, if any, he drank nor is there evidence to show that if he drank at all he was so drunk as not to know what he was doing.
In a well motivated reasoning the Court a quo dealt with this aspect of the matter and properly rejected the allegation of drunkenness by stating the following on page 10 of its judgment:
"To show that they were not drunk at all they surreptitiously went to the home of the deceased, making sure that no person saw them. Having killed the deceased and set her house onfire they vanished into thin air. So that when the people, including P.W.2
rushed to the home of the deceased when the alarm was raised the accused had left in agreat hurry and were not found near the burning
house. Their arrival there and their departure were well planned. No drunken men would do that."
Alternatively, the Court a quo rightly held that if the appellant drank beer at all it was for Dutch courage needed for the implementation of the intention to kill the deceased.
Provocation
As previously stated not only did the first appellant plead drunkenness but he also pleaded provocation. Moreover it will be recalled that it is first appellant's evidence that the deceased insulted him and that he was "hurt." His typical
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statement in this regard in cross examination was "I seem to be drunk and angry it wasn't my intention" (Record; page 90).
It proves convenient then to examine the provisions of Sections 3 and 4 of the Criminal Law (Homicide Amendment) Proclamation No. 42 of 1959. Section 3 thereof provides as follows-
"3( 1) A person who -
unlawfully kills another under circumstances which but for the provisions of this section would constitute murder; and
does the act which caused death in the heat of passion caused by sudden provocation as hereinafter defined and before there is time for his passion to cool; is guilty of culpable homicide only.
3(2) The provisions of this section shall not apply unless the court is satisfied that the act which causes death bears a reasonable
relationship to the provocation."
Section 4 of the Proclamation defines "provocation" as follows :-
"4(a) The word "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely when done or offered to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done.
For the purposes of this section the expression "an ordinary person" means an ordinary person of the class of the community
to which the accused belongs."
A proper reading of these sections has left me in no doubt that for an accused
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person to benefit thereby he must have killed in the heat of passion caused by sudden provocation before there was time for his passion to cool. There must be evidence that the act of provocation relied upon was likely to deprive an ordinary person of the power of self control and to induce him to assault the deceased.
On the facts of the instant case it is clear that nowhere did the deceased say to the first appellant that she had killed his brother with lightning. At any rate by the time this appellant confronted the deceased for the second time on the fateful day enough time had passed for the first appellant's passion to cool after a report had been made to him implicating the deceased in the death of his brother. It follows then that the Homicide Proclamation cannot avail the first appellant in this respect.
In M. Mokhali v Rex C of A (CRT) No.2 OF 1989 (unreported) the accused had "proceeded to chase the deceased, in a state of "great anger" eventually shooting him several times. The accused then sought to rely on the provisions of Sections 3 and 4 of the Homicide Proclamation. In confirming the conviction of murder, Mahomed JA, as he then was, expressed the position in the following terms with which I am in respectful agreement:-
"'The circumstances of the "provocation'* proved by the facts in this matter were not such as to make it likely that an "ordinary person" in the position of the appellant would so lose his self-control as to be and be induced to kill the deceased or to perform acts of so serious a nature as to carry with it an appreciated risk of death ensuing. Such "an ordinary person" would on the facts, have had enough time for his "passion to cool" sufficiently before he attempted an act as serious enough as the killing of the deceased. Moreover the act of killing the deceased in these circumstances does not "bear a reasonable relationship to the provocation" within the meaning of Section 3."
Dealing with a similar situation in Likhetho Nkoli v Rex C of A (CRI) No.
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10 of 1988 (Unreported) Trengove JA considered two main factors in confirming the conviction for murder namely:
"There is no evidence that on the afternoon in question the appellant was not in his sound and sober senses." One has a similar situation here.
The appellant's action was not an entirely impulsive act, on the blinding spur of the moment, leaving him no time to think of its possible effect. The appellant had been following the deceased and PW2 and he started attacking the deceased as he caught up with them," (Emphasis added).
Again one has a similar situation here.
The case of Mona and Another v Rex 1985-89 LAC 364 per Schutz, P (as he then was) (in which both Mahomed JA (as he then was) and Trengove JA concurred) probably raises a stronger case of provocation than the instant case. The appellants had been convicted of murder without extenuating circumstances by the High Court and sentenced to hang for having "slaughtered" four women whom the believed were witches responsible for the death of the 1st appellant's father by witchcraft. There was evidence that at least four of the deceased had taunted the 1 st appellant in the face that they were indeed responsible for his father's death and that the appellant's clan needed to be reduced in numbers as they were too many. On the following day one of the victims repeated the taunt to the 1st appellant adding that his father was there at the caves and that he should go and fetch him. This sparked off merciless beatings of the victims to death.
Despite the fact that Schutz, P (as he then was) was satisfied that "the appellants acted with great brutality, using sticks, burning down a hut with one of
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the victims inside it, and in some cases using a knife to finish off what the sticks had not accomplished" the learned President still came to the conclusion that the crime of murder had been proved. Accordingly the verdict of murder was confirmed but extenuating
circumstances were held to exist by virtue of the appellants' belief in witchcraft.
It remains then to consider the "insult" that the first appellant claims was made by the deceased on the fateful night.
Indeed Mr. Teele for the appellant has relied heavily on the fact that the appellant's evidence that the deceased threatened them with death was uncontradicted. The trial court rejected the appellant's story as not only improbable but also as false and in doing so it pointed to the following factors:
"The deceased was afraid of them (the accused) as she clearly showed this at daytime when she ran away from them. To say that when the accused arrived at her house at night she was bold enough to confront them and to push them out of her house and to threaten them with death by saying that they would follow their late brother, is not only improbable but a mere pack of lies. They went there with the sole intention of killing the deceased."
Weighing all of the aforegoing factors in this case the approach of the court a quo cannot be faulted. The appellant had already made a murderous attack on the deceased who, as earlier stated, fled for her dear life without so much as raising an insult. That was in broad daylight. As stated above the appellant once more "'confronted" the deceased using the cover of darkness. Hence the court a quo was justified in concluding that the first appellant did not meet her by chance but per design. This after he had on several occasions expressed his intention to kill the deceased.
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Now regarding the accused's explanation it is correct to say that the test is not whether the explanation that he gives is true but whether it may possibly reasonably be true. Conversely the test is not whether the court subjectively disbelieves the accused nor does the court have to reject the case for the Crown in order to acquit the accused. It remains the duty of the court throughout to determine whether the defence case is so demonstrably false or inherently so improbable as to be rejected as false.
R v Difford l937 AD 370.
S v Singh 1975 (1) SA 227 at 228 per Leon J (now Judge of our Court of
Appeal).
S v Kubeka 1982 (1) SA 534 at 537.
S v Jaffer l988(2)SA84.
S v Munejai 1986 (4) SA 712 at 714.
On the facts of the instant case and in so far as the first appellant is concerned the court a quo carefully analysed the evidence including the allegation relating to drunkenness and provocation. The Court a quo rejected the defence story as false and came to the conclusion that the attack upon the deceased and indeed her killing was premeditated. For reasons fully set out above the conclusion of the Court a quo was clearly warranted by the facts and as such cannot be faulted.
It follows from the aforegoing that the Crown succeeded to prove its case beyond reasonable doubt and that accordingly the appeal against the conviction of murder in respect of the first appellant stands to be dismissed.
Count II : Arson
The first appellant's conviction on this count was based on circumstantial evidence and in this regard the Court a quo stated the following: "the only
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reasonable inference to be drawn from the evidence is that they (the accused) set her (deceased's) house alight immediately after stabbing her." The Court a quo rejected, as mere speculation, the defence suggestion that other people who hated the deceased were likely to have set the house on fire.
It is pertinent to bear in mind in this regard the two cardinal rules of logic as set out by Watermeyer JA in the leading case of R vBlom 1939 AD. 188 at 202-203 namely that:-
"(1) the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn;
the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct."
Now the burning down of the deceased's house must be considered in the light of the first appellant's premeditation and vow to ultimately kill the deceased. He was obviously determined to carry out his expressed intention to the extent that he was not daunted by the fact that his intended victim the deceased escaped and outran him in the first attempt. Nor is that all. The deceased was heard crying out for help and mentioning the name of the first appellant in the process. People rushed to her aid only to find her house ablaze. There is undisputed evidence that they assisted the deceased and pulled her out of the burning house (Record page 40) - a fact which the defence duly made a formal admission of as shown above. This clearly belies the defence suggestion that people who hated the deceased could have set her house on fire. This suggestion in my view is not reasonably possible in the circumstances of the case but is pure conjecture.
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Significantly the first appellant admitted in cross examination (page 97 of record) that at the crucial time when the deceased's house was set on fire there were only the two appellants and the deceased at the scene. The cross examination was as follows:-
"CC: witness has came (sic) and testify before this Court when the alarm was raised and the deceased was crying for help there were flame (sic) already.
DW1: My lord we were not there at all moreover the deposition at the Magistrate Court said that there were many people at the kraal so we don't know what could have happen (sic).
CC: But you have testified before this Court that at the crucial time there was only you, the second accused and the deceased at the scene?
DW 1: Yes at that time we were only two my lord."
It follows from the aforegoing, in my judgment, that the only reasonable inference to be drawn from the peculiar circumstances of this case is that the first appellant set the deceased's house on fire after fatally stabbing her and leaving her inside the house. Such an inference is clearly consistent with the first appellant's premeditated and declared intention to kill the deceased. See Mona and Another v Rex (supra).
It accordingly follows that the finding of the Court a quo that the first appellant is guilty of the crime of arson in count II cannot be faulted. The appeal on this count also fails.
In the result the appeal of the first appellant on both counts is dismissed.
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As earlier stated it is the sentence that has given this Court anxious moments. It seems incorrect that despite the fact that The first appellant was convicted on two counts namely murder and arson respectively he was nonetheless sentenced to nine (9) years
imprisonment without specifying which count he was being sentenced for. In these circumstances this Court is obliged to interfere and rectify the sentence passed by the court a quo.
Accordingly the sentence in respect of the first appellant is altered to read:
Count I: Nine (9) years' imprisonment. Count II: Five (5) years' imprisonment. Both sentences to run concurrently.
The case against the Second Appellant
The Court a quo based its conviction of the second appellant purely on the principle of common purpose. That court was also of the view that the second appellant told the crown witnesses that his intention was to help the first appellant, his cousin, in the killing of the deceased.
In relying on common purpose as it did the Court a quo quoted the following passage from South African Law and Procedure, Vol. 1 by Burchell and Hunt p364:
"Association in a common illegal purpose constitutes the participation - the actus reus. It is not necessary to show that each party did a specific act towards the attainment of the joint object. Association in the common design makes the act of the principal offender the act of all. Such association need not be express, it may be implied from conduct. Becoming a member of a band with a common intention to kill coupled
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with presence at the scene of the killing would attract liability."
It must always be borne in mind however that the modern approach is that there is no magical power contained in the doctrine of common purpose and that where there is participation in a crime each of the participants must satisfy all the requirements of the definition of the crime in question before he can properly be convicted as a co-perpetrator. Such was the view of the Appellate Division in S v Williams 1980 (1) SA 60(A) at 63; S v Maxaba 1981 (l) SA 1148 (A) per Viljoen JA; S v Khoza 1982 (3) SA 1019 (A)
It is salutary for courts then to exercise some caution to ensure that innocent persons are not convicted for crimes committed by others for such is the inherent danger of the doctrine of common purpose.
It will be recalled that the Crown in the instant matter called only two witnesses namely PW1 'Mathabo Mathabi and PW2 'Masesu Mashili.
Although in her evidence in chief PW1 initially implicated both accused by stating that they praised themselves saying that they would ultimately kill the deceased she immediately retracted and indicated that it was Mosehle the first appellant who said these words (Record page 8).
Even in cross examination by defence counsel PW1 consistently maintained her evidence that it was the first appellant who expressed an intention to kill the deceased. Thus for example she was asked the following questions on page 23 of the record:-
"DC: You told this court that at the chiefs place someone praised
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himself that he is (sic) going to kill the deceased?
PW1" Yes.
DC: Who was this?
PW1: Mosehle."
It was procedurally incorrect for this witness to be allowed to give a totally fresh version in re-examination by stating that the second appellant told the chieftainess that he was going to "help" his brother at the deceased's place. Defence counsel's objection to this new piece of evidence was to no avail. It seems to me that it was unfair and prejudicial to the second appellant to lead this fresh piece of evidence in this manner at that stage since it clearly did not arise from cross examination and more especially since the defence counsel was not given an opportunity to cross examine on the issue at all. I would accordingly ignore this piece of evidence. In any event it was not even explained what "help" PW1 was referring to. To that extent the evidence was colourless. Yet in its judgment the Court a quo stated the following "in re-examination PW1 said that A2 had said that he would help Al in the killing of the deceased." This finding was not supported by the evidence. As indicated above the record does not show that the words "in the killing of the deceased" were used at all.
Similarly in my view it was a misdirection for the court a quo to state as it did on page 4 of its judgment that "PW1 says that at the two meetings of the chiefs the accused said that they would eventually kill the deceased for the death of the brother of Al.'" The record does not reveal PW1 ever saying that in so far as the second appellant is concerned.
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PW2 did not take the Crown's case any further in so far as the second appellant is concerned. Although she too initially implicated the second appellant by stating that he reported to her that he had chased the deceased with the first appellant and that they both wanted to kill her she like PW1 later changed her version and only implicated the first appellant while exonerating the second
appellant. This was in answer to Crown Counsel's examination in chief as follows (record page 36):-
"CC: Who said these?
PW2: The accused.
CC: Both of them?
PW2: Mosehle Maboka.
CC: That is the first accused who said that?
PW2: Yes
CC: What about the second accused?
PW2: He was quite (sic)".
The last word "quite" is obviously a spelling mistake. There can be no doubt that the intended word was "quiet".
In fact in cross examination (record page 54) PW2 maintained that the second appellant never said anything although she had attempted to suggest both appellants spoke simultaneously. In her own words she had earlier said (record page 54) "I am saying at that time A2 spoke, if these people come to (sic) and speak simalteniously (sic) would I hear anything."
To remove any lingering doubt on whether the second appellant said anything by way of a vow to kill the deceased or at all PW2 was once more asked the following questions in cross examination (record: page 56):-
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"DC: And did anyone vowed (sic) to kill the deceased?
DC: Who was that?
PW2: Mosehle
DC: Did accused 2 said (sic) anything?
PW2: No he did not say anything."
It follows from the aforegoing that the evidence of PW1 and PW2 was far from harmonious and or satisfactory in so far as the second appellant was concerned. The evidence was full of contradictions.
Significantly each of the two witnesses ended up by conceding that the second appellant was quiet and did not utter any threats to kill the deceased. At the very least the court a quo should have entertained a reasonable doubt in so far as the second appellant was concerned even if the court was impressed with the honesty of the witnesses for it is not uncommon for a witness to be honest and yet mistaken.
It further follows from the aforegoing that the finding by the court a quo that the second appellant also "publicly expressed" his intention to kill the deceased is a grave misdirection.
Again on page 10 of its judgment the court a quo made the following finding namely that "they (both accused) stabbed her (the deceased) five times on the left breast and all those wounds penetrated the heart. They knew very well where the deceased was most vulnerable." The fact of the matter is that there is absolutely no evidence that the second appellant ever stabbed the deceased. Once more the finding of the court a quo on this issue is with respect a clear misdirection. And so
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is the finding that the second appellant did not stop the first appellant from going to the deceased's house at night and that he did not stop him during the stabbing of the deceased. This finding overlooks the uncontradicted evidence of the first appellant to the effect that "he (the second appellant) tried to stop me from going and I told him that we were not going to fight." On top of this there is no evidence on record to even remotely suggest that the second appellant was aware that the first appellant was armed with a knife or that it might be used.
Finally on page 20 of its judgment the court a quo appears to have viewed with disfavour the fact that the second appellant did not give evidence in his own defence. The court expressed itself in the following terms:-
"In any event he (the second appellant) has not even given evidence before this court to explain his non-participation in the act. He wants this court to accept the evidence of Al which I have rejected outright as nothing but a pack of lies."
With respect there is no onus on an accused person to prove or explain his innocence. This is so because the onus remains on the Crown throughout to prove its case beyond reasonable doubt. In this regard I am mainly attracted by the remarks of Williamson JA in S v Mini 1963 (3) SA 188 (A) at 196 in the following terms:-
"No onus can be cast on an accused to give evidence in explanation and a failure to given an explanation never amounts to a failure to discharge an onus. If the facts indicate that an accused in all probability must have intended to kill, a failure to explain why such inference should not be drawn may, when thrown into the balance, convert a strong inference into a necessary inference in certain circumstances. But where a failure to give evidence may be due to factors other than a realisation of guilt on a charge of murder, it cannot in circumstances like the present be of any real value in strengthening the inference to be drawn from equivocal facts. In my view, the fact that the appellant in this case did not enter the witness box,
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went no distance towards assisting the State to prove intention to kill."
Weighing all of the aforegoing considerations it follows in my judgment, that there must be a reasonable doubt about the guilt of second appellant and that accordingly the Crown failed to prove its case beyond reasonable doubt against this appellant.
I should like to record at this stage that in this Court Miss Maqutu for the Crown very fairly and properly conceded that the Court a quo erred and misdirected itself in finding the second appellant guilty on both counts and that the Crown was unable to prove beyond reasonable doubt that the second appellant had common cause with the first appellant. I have no doubt that if this concession had been made before the trial court it would have been of great assistance to that court.
In the result the appeal of the second appellant is allowed. Both convictions and sentence against the second appellant are set aside.
Conclusion
In the result I would order that:
The appeal of the first appellant against his convictions on both Counts 1 and 2 is dismissed.
The sentence in respect of the first appellant on Count 1 is altered to read "Nine (9) years' imprisonment,"
The sentence in respect of the first appellant in Count II is "Five (5) years' imprisonment.'1 Both sentences to run concurrently with one another.
The appeal of the second appellant against his convictions
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on Counts 1 and 2 is upheld and the sentence of Nine (9) years' imprisonment imposed against the second appellant is also set aside.
Signed:
M.M. Ramodibedi
JUDGE OF APPEAL
I agree Signed:
R.N. Leon
J.J Gauntlett
Delivered at Maseru this 13th day of April 2000.
For Appellant: Mr. Teele
For Respondent: Miss Maqutu
