C. of A.
(CRI) No. 3 of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

VINCENT
MONAHENG MUSETSE THESE Appellant

V

REX
Respondent

HELD AT
MASERU

CORAM:

Schutz P.

Mahomed
J.A.

Aaron
J.A.

JUDGMENT

SCHUTZ P.

The
appellant was found guilty of murder without extenuating
circumstances by Molai J and sentenced to death. He appeals to this

Court against conviction and sentence. The murder of which he was
convicted is of that unhappy sub-species commonly known as ritual
or
medicine murder.

Molai J
analysed the evidence in great detail in the course of his judgment
so that little purpose would be served by repeating
that process.
Accordingly I propose to set out only an outline of the facts and to
go into detail only where questions of credibility,
admissibility

2

and
weight arise.

On the
night of 31st December, 1982 the deceased Mdkhachane disappeared from
his village of Makhebesela at Maqhaka. On 3rd. January,
1983 his
mutilated body was found on the plateau of Maqhaka mountain. The
deceased's genital organs, that is the penis, the scrotum
and the
testicles were missing. According to Dr Choi, who performed the
post-mortem examination, and whose evidence was not challenged
in the
relevant respect, the wound caused by the removal of the genitals was
such that "it could be easily identified that
it was not by
means of animal cut so in my suggestion a sharp instrument was used
to make such wound."

The only
eye-witness called by the Crown was Moltsepi Thebe, who is the
appellant's younger brother, and who was 11 years old when
he gave
evidence. He gave a detailed account of the murder of the deceased by
the appellant. Three things must be said about this
witness at the
outset. He was young. The trial court warned itself against the
dangers of accepting the evidence of a child who
may be particularly
imaginative and prone to the prompting of others, whether consciously
or unconsciously. This Court must also
warn itself against those
dangers. The next consideration is that young Thebe was treated as an
accomplice and has to be treated
as such. The trial court clearly
warned itself against the dangers of accepting an accomplice's
evidence and of the need to observe
the cautionary rule adopted by
our courts, which goes beyond what is required by statute. The
cautionary rule has been discussed
again

3

in this
Court quite recently in the case of Khokoane Manamolela & Others
v R (C of A (CRI) No. 2 of 1982 at p 11-14 - delivered
on the 28th
February, 1983). In the course of the judgment in that case I
referred to the judgment of SCHREINER J.A. delivered
in this Court in
the case of Tsiu Lethola and seven Others v R 1963-1966 H.C.T.L.R. 12
at 15-16. In the course of his judgment
Schreiner J.A. remarks that
the weight of an accomplice's evidence may be increased if there is
blood relationship or friendship
between him and the accused. I find
it unnecessary to repeat the principles that are applicable in a case
such as this. This Court
also must warn itself of the dangers of
accepting young Thebe's evidence and of the need to apply the
cautionary rule. The third
comment that I make about this witness is
that when he was first interrogated he denied knowledge of the
circumstances of the deceased's
death and gave his present version
only after he had been detained for a very considerable time.

The
accomplice's story is as follows. On New Year's Eve 1982 there was
celebration in the village. The appellant approached him
and said
that "he wanted someone to mutilate". The appellant
instructed him to go and call a small boy called Tlali.
The witness
sought Tlali but could not find him and reported back to the
appellant. The appellant then told the witness to call
another boy
called Sanku. He went to Sanku but the latter refused to respond to
the request. The appellant then instructed the
witness to fetch the
deceased, but added that the deceased was to be told that he was
being called for by

4

one
Tsotang. The witness found the deceased and brought him back to the
appellant. The fact that someone used a ruse in conveying
that it was
Tsotang end not he that was calling the deceased is confirmed by two
witnesses. Tsotang Motseki was called. He was
a friend of the
deceased. He denied that he had sent a message for the deceased that
the latter should come to him on the night
in question. In fact his
evidence was that he was not at the village at all that night. The
other witness was Sekhofa Thebe, a
15 year old, and a nephew of
Moitsepi Thebe, and therefore presumably also of the appellant. He
confirmed that on the evening young
Thebe came to the deceased and
called him, stating that it was Tsotang who was calling him. The
deceased then went away with young
Thebe towards where a person was
waiting next to the kraal. He did not say who this person was. The
trial Court found that the
evidence as to how the deceased was
attracted by a ruse was probably the truth. I can see no reason for
not accepting the evidence
of Tsotang and Sekhofa, but, as the trial
court recognised, the question still remains whether it was the
appellant who practised
the ruse. The evidence of these two witnesses
therefore tends to confirm that of young Thebe in an important
respect but not in
the respect whether it was the appellant or some
other person who stood at the kraal and who committed the murder. In
fact to use
the evidence of these two witnesses as corroboration for
purposes of the cautionary rule would be to fall into the trap that
the
courts have so often warned against, namely that one of the
perils in an accomplice's evidence is that he is in the position to

give accurate circumstantial

5

details.
I would therefore suggest that if he was relying on this
corroborating evidence alone, the trial judge may have gone too
far
when he said, "there is no doubt in my mind that (young Thebe)
was testifying to the truth when he said the person leaning
against
the kraal was not Tsotang but the accused."

I take up
the story of young Thebe where I had left it which was at the point
where the deceased came to the appellant in response
to the letter's
call. The appellant then told the deceased to accompany him up to
Maqhaka mountain in order to fetch the appellant's
dagga, offering
the deceased a reward of two Maluti in return. The deceased agreeing,
the three of them, that is the appellant,
young Thebe and the
deceased, then proceeded up the mountain. When they were up the
mountain the appellant directed that wood should
be gathered in order
to make a fire as he was feeling cold. Whilst young Thebe was
complying with this request he heard a sound
of something or someone
falling over a cliff. The appellant and he proceeded to the spot
below the cliff where the deceased was
crying out for help saying
that he had broken his right hand. The cliff was over 12 feet high.
The appellant then took out a sharpened
iron rod and stabbed the
deceased with it "at the beck near the shoulder blade holding
him by the neck." As the appellant
stabbed young Thebe hid
himself behind some rocks. There was some confusion, at least, in his
evidence with regard to this incident.
At one stage he said that he
saw only the stabbing action and not the stabbing object. Later he
said that he saw both. Dr Choi
did not find any wound

6

consequent
upon this stabbing in the course of the post­mortem examination.
However, he did say that the body was considerably
putrified and
blistered. That there was a stab wound on the deceased's body is,
however, deposed to by Detective Trooper Seboka,
who said that when
he found the body on the mountain there was an open wound on the left
breast (a position different to that described
by young Thebe).
Speaking of the time of the postmortem, on the following day, he was
asked "was this wound on the chest still
visible?" His
answer was ''yes it was still visible but on account of the body
being putrified it was almost closed up".
One knows from
experience that postmortem examinations are not always conducted with
the thoroughness with which they should be,
and particularly does
this seem to happen when the conditions are trying. I do not think
that we are in a position to find that
the evidence of Dr Choi
positively contradicts that of young Thebe. The probability is that
there was a stab wound which was overlooked
by the doctor. If the
detective trooper was falsely trying to corroborate the Crown
witness, one would have expected that he would
at least have taken
the trouble to get the position of the injury right. But the subject
of the stabbing does not end. there. During
the appellant's evidence,
when he was describing the important incident when he was taking the
piece of dried flesh out of the
roof of the house where he lived, he
stated that he also took out a sharp iron rod. He said that he did
not have anything to do
with this rod and that he was not hoping to
find it in the roof. When he was asked whether he believed that this
rod was in the
roof, his answer was

7

"yes
I was just implicating myself". None of the Crown witnesses
seems to have described the finding of this rod. I consider
that
there is a significant element of corroboration in this evidence in
that young Thebe said that the appellant used a sharpened
iron rod to
stab the deceased and in that the appellant and none other went to a
place where such an object was secreted.

To take
up the story again, the appellant then took hold of the deceased's
leg and dragged the deceased some distance away to a
place where
there were bushes. While this was happening young Thebe came out of
hiding. The witness said that he saw that the deceased
had been cut
in the front part of his body, although he did not see the cutting
taking place. He also said that "I saw blood
clearly as it was
jetting up and falling down making a sound," The trial judge had
some rather disparaging things to say about
this evidence. He
regarded the witness as being intelligent but said that after two
days of strenuous cross-examination he "clearly
broke down
towards the end and started saying things that I considered senseless
or incredible." Thus he said that he found
it incredible that
the witness could have seen blood jetting up and could have heard it
dropping to the ground. He suggested that
this evidence was a product
of the witness' "fertile imagination" after he had heard
upon discovery of the body that
the genitals had been removed. I
fully allow that the trial judge had the advantage of seeing the
witness, an advantage that I
have not had. But I do not find this
particular part of the evidence incredible. It may be that the reason
for the

8

trial
judge's disbelief was that this all happened at night. The witness
himself said that it was dark that night because there
was cloud in
the sky. But it was the night of the full moon. At least one witness
described that the cloud was scattered, which
would mean that the
moon would break through fitfully. A considerable amount can be seen
at close range by the light of the full
moon. I am quite ready to
accept that a dark liquid such as blood can be seen at full moon. The
witness is supported to an extent
by the evidence of Detective
Trooper Seboka who says that he found a pool of blood about three
paces from the body and another
pool of blood higher up on the cliff.
It is possible that the witness reconstructed from having himself
seen these pools of blood
when he went up the mountain with the
police.

I resume
the witness's story. The appellant then threw the deceased or his
corpse over the cliff. Together with the witness he then
proceeded to
a nearby dam into which he threw the tennis shoes which he had
removed from the deceased. As the story proceeds it
becomes
increasingly clear that it could not have been a pitch black night.
The persons initially involved had climbed a mountain,
and the
remaining two climbed down it again, went to a dam and found their
way home. The deceased's mother, Mathuso Mokhachane,
identified the
one tennis shoe which was later recovered from the dam as being her
own which she had lent to the deceased on the
night in question.
Although there was no final and definitive identification of this
shoe, there is a considerable degree of probability
that it was her
shoe. But the matter does not end there. Many weeks after the murder
the witness took the police

9

to the
dam and after a long search the tennis shoe was recovered. The day
before, the appellant himself had taken the police to
this dam. I
regard this evidence as being significant corroboration implicating
the appellant. There is a considerable improbability
that the
appellant would take the police to such a spot and that the police
would thereafter find in the dam the tennis shoe which,
according to
the evidence that must have been available to them by then, had been
thrown into the dam. This evidence is evidence
of pointing out and is
therefore admissible regardless of any statements that the appellant
might have made regarding the matter.

To
proceed with the story, the brothers Thebe then went home. On the way
the appellant warned his brother not to tell anybody anything
about
the events of the night threatening to kill him if he did. On the
way back the appellant was carrying a tin or mug and the
sharpened
piece of iron. He told his brother that the tin contained flesh.

According
to Detective Trooper Seboka, on the same day that the appellant
pointed out the dam, he pointed out substantially the
same places on
the mountain as had been pointed out by young Thebe. This again is
admissible evidence of a pointing out and tends
to corroborate the
evidence of his brother in a manner which implicates the appellant.

The
appellant gave evidence and denied the evidence of his brother in all
material respects.

10

Leaving
now the eye-witness, I turn to the next important piece of evidence.
Motsoafa Mamantja was the headman's bugle living at
Maqhaka. He says
that during February 1983 the appellant arrived at the village in the
custody of the police. They went to Tseliso's
house. The police asked
the appellant "where?" at which the appellant pointed to a
place in the roof where the grass
had been disturbed. The appellant
stepped on a chair, and then came down holding a "thing" in
his hands. I shall come
back to the important question what that
thing was. I interpose to say that the witness proceeded to add that
the police asked
him what the thing was and that the appellant
replied that it was the front part of the deceased. The admissibility
of these words
stands on a footing different from the pointing out
and I will deal with them separately. Another brother of the
appellant, one
Tseliso Thebe, was also present on this occasion. He
gave evidence essentially the same as that of the witness just
mentioned regarding
the removal of something from the roof and the
words of the appellant. He added that what was removed was a parcel
wrapped in paper
and that the contents appeared to be a piece of dry
flesh. He was horrified at what had been extracted when he realised
that this
object had been in the same house as that in which his
recently deceased wife had lain when deed. Detective Trooper Seboka
confirmed
this evidence. He said that the appellant had replied that
the object removed was the penis of the deceased. He described the
contents
of the parcel as being dry flesh with heirs on it. The
appellant did not deny this evidence. According to him the police
asked
him where "it" was, and he pointed it out

11

to them.
He then stood on a chair and took "it" out. It was a
parcel. He agreed that he had said that the contents of
the parcel
were the front part of the deceased.

Leaving
aside for the moment the admissibillty of the words employed by the
appellant on this occasion, the pointing out is plainly
evidence of
great importance, if the object removed was human flesh, and even
more so if it came from the public region. The appellant
said that
the words he had used, and by inference also his conduct, resulted
upon torture and ill-treatment inflicted on him by
the police.
Whatever truth may lie in this evidence, the question still remains
how he was able to point out this piece of flesh
hidden in the roof.

The
appellant's answer to this evidence when the answer emerged, was
simple. The piece of flesh did not derive from a human at all
but
from an animal called Tatai. He said that this animal was a wild
animal, coloured black, with hair similar to that of a pig,
but
having more hair than a pig has. The first mention that was made of
the Tatai was made in the course of the appellant's evidence
in
chief. Notwithstanding that he claimed that he had instructed his
counsel on this important matter, nothing was put to the expert

witness, to whom I shall refer below, concerning this suggestion. The
appellant proceeded to say that he had acquired the piece
of Tatai
flesh in the course of a hunting expedition at a certain cattle post
when his dogs had killed a Tatai in the presence
of one Mohlouoa. He
shared the flesh of the Tatai with Mohlouoa, who, according to the
appellant, was a medicine man like himself.
The valuable quality of
this

12

material,
according to him, was that it would allow the possessor to cause the
cattle to come home from the veld on their own.

Not only
was this Version not put to the expert witness, but it was also not
put to the police. According to the appellant, he told
the police
that what he had found was Tatai flesh. The Crown called evidence in
respect of the nature of this piece of flesh. The
witness was Capt.
Oelofse of the S.A. Police. He (I am rather uncertain of the sex of
this officer so that if I wrongly call her
him, no offence is meant)
has a B.Sc Zoology degree, is stationed at the forensic science
laboratory in Pretoria and his particular
expertise is the analysis
of hair end related matter. He examined the piece of flesh, and the
following resulted. Thirteen hairs
were removed from it. The sample
was submitted to a close macroscopic and microscopic examination in
accordance with approved scientific
methods. He concluded that the
hairs were human public hairs. He could not determine the sex. These
facts were contained in an
affidavit made by Capt Oelofse, which was
presumably admissible under section 223(4) of the Criminal Procedure
and Evidence Act.
However, Capt Oelofse also gave evidence. No
cross-examination was directed to the question whether the flesh was
human flesh.
The captain gave evidence as to whether the hair was
pubic hair, and based his conclusion on the appearance of the hair.
There
was cross-examination as to whether the hairs came out of the
flesh or whether they were merely attached to it. In
evidence-in-chief
it was said that "the roots broke when I
pulled out the hair." The question was then put "could this
hair have been
grown out of this flesh or it came there

13

independently?"
The answer was "It was embedded there." The next question
was "In your experience in your career
could this hair have
grown out of the flesh as a natural process or what?" The answer
was "It was grown there."
The following was asked and and
answered in cross-examination.

"Do
I understand it that the flesh was so dry that it was not possible
for you to see the roots or the hair at all? Root hairs
were not
visible.

What you
mean is that you were not able to see the roots? Yes.

So any
suggestion that there were roots on this flesh is a mere speculation?
The fact that the head of the hairs were grown outwards
makes it true
that there were root hairs.

But
surely you cannot say that indicates beyond reasonable doubt that
there were roots on the flesh? It is a possible things."

To my
mind this evidence establishes quite clearly that the captain was
describing hairs growing out of the flesh. The fact that
he did not
examine the roots themselves and could therefore not say with
certainty that there were roots takes the matter no further.
The
cross-examination was in my opinion quite inconclusive. There is
surely a great difference between 13 hairs that are attached
to a
piece of flesh by some process of encrustation and hairs growing out
of the flesh. I would also point out that the suggestion
implicit in
the cross-examination that each fact has to be proved beyond
reasonable doubt is without foundation. The correct approach
in a
criminal case is to determine at the end whether the proved facts
establish guilt beyond reasonable doubt.

14

The
admissibility of this evidence was attacked on the basis that Capt
Oelofse had done no more than state a bald opinion without
stating
his premises. In Coopers SA (Pty) Ltd v Deutsche Gesellschaft fur
Schadlingsbeka-mbfung MBH 1976 (3) SA 352 (A) the following
was
stated by WESSELS, J.A. (at 371G):

"Except possibly where it is not contraverted, an expert's bald
statement of his opinion is not of any real assistance. Proper

evaluation of the opinion can only be undertaken if the process of
reasoning which led to the conclusion, including the premises
from
which the reason proceeds, are disclosed by the expert......the
summary must at least state the sum and substance of the facts
and
data which lead to the reasoned conclusion (i.e., the opinion). Where
the process of reasoning is not simply a matter of ordinary
logic,
but involves, for example, the application of scientific principles,
it will ordinarily also be necessary to set out the
reasoning process
in summarised form."

I think
that Capt Oelofse's evidence could have been fuller, but I do not
accept that it constitutes a bare statement of opinion.
He looked at
the hairs both with his unaided eye and with the aid of a microscope.
He is skilled in identifying human hair and
I fall to see why he had
to deliver a long lecture as to why what he saw was human heir. As to
his opinion that the hair was pubic
hair he gave his reasons. He
relied upon the curly nature of the hair, the shortening in its
growth and its thickness. I think
that this is sufficient. As to
whether the hair grew out of the flesh, I have already dealt with
that. What was involved was simply
the use of one's eyes.

The
appellant gave further evidence as to this piece of flesh and as to
how it could have had hairs upon it. He stated that he went
to bed
with this piece of flesh. He did not wear pyjamas. The piece of flesh
came into contact

15

with his
pubic hairs.. I would expect that if 13 of his pubic hairs (at the
lowest - 13 makes no account for the daily crop reaped
before Capt
Oelofse's appearance - as to which see below) were wreched out after
being attached to the piece of flesh it must have
been quite a
painful experience. That he does not describe. Why he had to take
this piece of flesh to bed with him at all instead
of putting it in
the roof where it was ultimately placed was not explained. His
conduct is at the least extraordinary. In cross-examination
it was
put to him that Capt Oelofse's evidence was to the effect that the
hairs were standing upright and were not stuck to the
flesh. Upon
this the following exchange took place: "Now you say she is
talking tales? Yes, she had no knowledge in that respect."

Further on in cross-examination he says that he knew that his pubic
hairs were on the piece of flesh and that he used to pull them
out
daily. If that is so he left remarkably many behind. It was then put
to him that the wool from his blankets was more likely
to have stuck
to the flesh than his own pubic hairs. He agreed with that but could
give no explanation as to why no wool was found.
I find this whole
story an incredible invention. Such a finding on an accused's
evidence on a material point can have an important
bearing on the
application of the cautionary rule, and in this case I consider that
it does have such a bearing.

The
question of the tatei does not end there. Nobody else in the court
appeared to be aware of the existence of such an animal.
The judge
and the assessors had. never heard of such a creature. At the end of
the defence case the court called one Mohlouoa Sehloho.
He had once

16

been with
the appellant at the cattle post at Thekamphole's village. He denied
ever having hunted the tatei with the appellant,
and indeed denied
knowledge of the existence of any such animal. When this witness had
given his evidence the appellant said that
the wrong Mohlouoa had
been brought to court. An application was then made that the
appellant should accompany the police to the
post in order to bring
the right Mohlouoa. The application was granted, and the party
departed. When the court resumed it was told
that the cattle posts
were deserted. Second Lt Letsunyane was called. He stated that the
party went up to Mapoteng Police Station
and stayed there overnight.
The next morning when the party was about to leave for the cattle
post the appellant said to him that
it would be better to return as
he had given false information to his attorney and to the court end
that there was no Mohlouoa
at the cattle post. In cross-examination
it was put to him that his version of what the appellant had said was
a lie. He denied
this. At the end of this the following occurred:

"DC My Lord I wish to call the accused on this allegation.

HL I have never heard of such a procedure. It is only the court that
can call the witnesses. The thing has taken far too long.
It is not
necessary for me to recall the accused."

The trial
then ended. It may have been better if the trial Judge had allowed
the appellant to record his denial of this statement
and his
cross-examination thereon on oath. But I do not think that his
refusal to allow this constituted an irregularity. It was
an
important port of the appellant's case to establish the existence of
the

17

tatai. I
would have thought that if it existed in a country so highly
populated as Lesotho its existence would by now have been
recorded in
the books. Moreover, it had always been open to the appellant to call
the corroborating evidence as to the hunting
expedition. In order to
help him and to see that justice was done the trial judge caused a
witness to be called who was thought
to be the witness that the
appellant had in mind. A blank was drawn. Although forebearance must
be shown by a judge in ensuring
that an accused has a proper
opportunity of advancing his case, and particularly so in a capital
case, criminal trials must have
an end. I do not think that a
criminal trial should be protracted indefinitely in order that the
definitive expedition be sent
up into the high mountains in order to
determine finally the existence of the legendary Yeti.

I
conclude that the flesh that the appellant removed from the roof was
not that of the tatai but that of a human and that it came
from the
pubic region.

The
matter does not end there. There is evidence by one person that prior
to the time the appellant expressed an intention or a
desire to
commit ritual murder. A prior statement of the intention to commit a
crime is admissible evidence: S v Holzhausen, 1984(4)
SA 852 (A).
Then, after the crime had been committed, the appellant made a
confession to another person, who was not a policeman.

The
evidence of the prior statement, which was denied by the appellant,
was given by one Tom Phatsoane, who was 20 years old. He
said that in
December 1982 the

18

appellant
approached him and asked him with what, according to his observations
of the country, one can strengthen oneself in order
to make oneself a
true man. He replied that one could strengthen oneself with a
water-snake known as tlhoare. The appellant replied
that the
water-snake has no strength. The witness then asked the appellant
with what he could strengthen himself. The appellant
replied that he
could strengthen himself with human blood. The appellant then
encouraged the witness to strengthen himself with
human blood so as
to be a real man. He further said that they ought both to be real
men. The witness asked him how they were to
achieve that state. The
appellant replied that on the night of Christmas day the two together
should kill a person but not in their
own village. The appellant
expressed an intention of taking blood and fat from the body of the
person killed. The witness made
as if to go along with the plan.
Thereafter, according to the witness, he made up a story which he
told to the appellant. The substance
of the story was that in his
dreams his deceased grandmother had come to him and warned him that
he would be killed if he went
along with the plan. The appellant said
that the dream resulted from witchcraft. It was agreed that the two
would meet again on
New Year's Eve 1982. On that evening the witness
informed his mother that if the appellant came he was to be told that
he, the
witness, was out. The appellant did come on that evening and
the witness heard him calling for him and also heard his mother say

that he was out.

As
already indicated this evidence is disputed. The witness was rounded
up by the police. He feared that he might be suspected,
and he also
feared that somebody might

19

might
have implicated him. He does not appear to have been immediately
forthcoming to the police. However, no reason has been suggested
why
he should have fabricated this damning story. In cross-examination
the appellant was asked "Are you enemies then?"
The answer
was "No". Of this witness' evidence the trial judge said
that the probabilities were high that he was telling
the truth and
that he was inclined to accept his evidence. It . must be stated of
this witness that outwardly he was an accomplice,
although according
to him his accomplice-ship was a charade. I am inclined to treat his
evidence with some caution, and although
I think that it is very
probably true I will treat it as that of another accomplice.

The next
witness stands on a different footing. Some time after the appellant
had been arrested he succeeded in escaping. Whilst
he was on the run,
according to Ntja Mohapi, he came to his, Mohapi's, house at about
8.00 p.m. one evening, when the witness was
already asleep. He was
the cousin of the appellant. He already knew that the appellant had
been arrested, and the appellant told
him that he had escaped. Then
comes a passage in his evidence which exhibits one very improper as
also unwise leading question
by counsel for the Crown. The passage
reads:

"I
asked him for what he was arrested and he told me.

If you
still remember can you tell us what he said? He was arrested for
killing Mokhachane.

Did he
say why he killed him? He said that he was preparing his medicines.

Anything
else? Nothing."

20

The
appellant denies this whole incident. The defence submits that the
passage just quoted is vague. But that is not all that the
witness
said. In cross-examination the following appears, "Now the
accused will deny that he ever held any discussions with
you
particularly on the killing of Mokhachane? He will be lying because
that is what he told me with his own mouth." And further
on the
following appears:

"Did he voluntarily say to you he had killed specifically
Mokhachane or just a person? He specifically called the name of

Mokhachane.

Was he proud of that action? Yes he did it with intention as I
further questioned him."

I do not
think that there can be any doubt as to the effect of the evidence of
this witness. The appellant was not merely reciting
to him the charge
that had been brought against him but was confessing to the killing.
This conclusion is to some extent supported
by the witness' reaction
after this conversation. He expelled the appellant from his house. In
cross-examination the appellant
was asked about the evidence of this
witness. After recording his denial of the incident he said that he
did not knot what was
going on in the witness' mind.

He was
then asked whether the witness had anything against him to which the
answer was "No". The trial court by clear
implication
accepted the evidence of this witness. To my mind the evidence should
be accepted as true. It is very difficult to
believe that the witness
would have fabricated this story against his own cousin to whom he
bore no hostility. Being a confession
not made to a peace officer,
and there being no evidence that the confession was not voluntary,
indeed the contrary, I consider
it to be admissible,

21

and once
admissible, weighty,

I have
already related the words the appellant admits he used at the time
that he removed the piece of flesh from the roof. The
trial court did
not rely upon the words apart from the pointing out which accompanied
them. A question arises as to whether the
words themselves are
admissible. Although uttered in the presence of police officers, the
words do not seem to me to constitute
a confession in the technical
sense employed in our law, even although as an admission merely they
are very damning. But supposing
that the words may be admissible,
reliance on them would involve another lengthy enquiry as to whether
they were not uttered because
of police intimidation and threat,
which is the appellant's explanation for having uttered them. The
police admitted through the
mouth of Detective Trooper Seboka that
the appellant was detained and interrogated without being charged for
much longer than the
law allows. This passage appears in his
cross-examination :-

"Are you telling the court that you sacrificed the accused's
liberty for your investigations? That is so."

Against
the background of that admitted impropriety, I think it would be much
safer to ignore these words, particularly when there
is so much other
reliable evidence.

The trial
court found that the cause of the deceased's death was castration
performed whilst he was still alive. This finding is
challenged. The
cause of death advanced by Dr.Choi was castration and multiple
contusions. But in cross-examination he conceded
that he was not sure
of the exact cause of death. He agreed that another cause could have

22

been
shock resulting from castration. This is not a case in which, in my
opinion, a determination of the exact cause of death is
particularly
important. Let us suppose that death could have been caused by the
stab wound, bleeding caused by the castration,
shock resulting from
the castration, or being twice hurled down a cliff, someone, more or
all of these. This is not a case where
the facts do not speak as to
the accused's intention and his attainment of his goal. There are
cases where it is clear that an
accused is responsible for a death
but where it is uncertain whether the death was caused intentionally,
negligently or justifiably.
In such a case, as in many others, the
medical evidence as to the cause of death is sometimes very
important. The deceased was
apparently healthy when he set out for
the mountain. Not long after he was found to have died by violence.
The evidence shows that
the appellant acted with a premeditated
intention to kill. He took away parts of the deceased's body which
had all along been his
purpose. In such circumstances, speculations
as to the deceased's possibly having tumbled down the cliff, or
having died for not
having been taken to hospital (a suggestion
actually put forward in cross-examination) or having succumbed to
general enfeeblement
simply do not arise. What if the process of
decomposition had gone its full course and nothing but a skeleton had
been found? I
do not think that it would have been much difference to
the case other than that there would not have been the evidence that
the
genitalia had been removed.

In
conclusion, on the question of the conviction for murder, I am of the
opinion that the evidence of young Thebe is credible although
not
entirely satisfactory, is amply

23

corroborated,
that even without his evidence there is damning evidence against the
appellant, that the appellant's evidence was
rightly rejected, and,
in short, that the case against him is overwhelming. In my view he
was correctly convicted of murder.

That
leaves the question of extenuation.

We have
before us the unhappy spectacle of a young man, who has committed a
brutal and bestial murder, actually believing that by
doing so he was
achieving some end, and knowing that his conduct was unlawful. I
expand on the matters just summarised. According
to his father the
appellant was bom in March 1963. Thus he was some three months short
of the age of 20 when the crime was committed.
In terms of Section
297(2) (b) of the Criminal Procedure & Evidence Act a sentence of
death may not be passed upon a person
who was under 18 years at the
time of the commission of the offence. Regarding the crime being
brutal and bestial, those words
are taken from the judgment in
Khokoane Manamolela (above), also a ritual murder case. The evidence
in the present case does nothing
to detract from what was said in the
former case. In fact the evidence confirms the description. It seems
that any innocent young
child playing with his playmates was good
enough for the appellant's ends, to be taken away and brutally
mutilated by the removal
of his private parts whilst still alive.
Regarding the next point: I have said that the appellant actually
believed that he was
attaining an end by doing what he did. I say
that because I fail to see how he could have brought himself to this
deed unless he
believed that he would "strengthen himself"
through his

24

victim's
blood and fat. Finally, as to his appreciation of the unlawfulness of
what he was doing, this is amply demonstrated by
his furtive
execution of his design and by the threat Uttered to his younger
brother.

The onus
of proving extenuating circumstances rests on the appellant. He can
discharge that onus by means of his own evidence (which
does not help
much in this case) or by reliance on the other facts proved in the
course of the case. The question is whether the
facts show that the
appellant's moral blameworthiness is reduced so as to amount to
extenuation.

Substantially
five matters have now been raised as constituting extenuation.
Although at the end of the case it is necessary to
consider the
cumulative effect of possibly extenuating circumstances, I shall deal
with the five matters in order. They are :-

1. That
   the appellant was insane, (This point does not appear to have been
   raised below).

   
   

2. That
   he suffered from mental immaturity, or was a person subject to
   delusions, and was a person whose responsibility was diminished
   even
   though he was not legally insane.

   
   

3. That
   the Crown or the court should have caused evidence to be led as to
   the appellant's mental state, and, this not having been
   done, he is
   entitled to the "benefit of the doubt."

   
   

4. That
   the appellant's belief in witchcraft or darkcraft should be treated
   as extenuation.

   
   

5. That
   the appellant's youth should be similarly treated, either alone or
   in conjunction with other possible factors.

   
   

I address
myself to these five matters in turn.

25

As to the
question of insanity, this is not a matter of extenuation at all, but
an answer to a claim for conviction. The onus of
proving insanity on
a balance of probabilities rests upon the accused: R. v Makabe 1977
LLR. 229 and cases there cited. In any
event there is no suggestion
in the evidence, to my mind, that the appellant may be insane,
however wrong-headed he may be.

Next, the
question of diminished responsibility. It is pointed out on behalf of
the appellant that he is a person of no great education
and that, as
he has said, he acts on dreams. For instance, he says that his
ancestors have directed him to dig herbs and make medicines.
In R. v
Biyana 1938 EDL 310, Lansdown JP acknowledged that extenuation might
be present where the accused had :-

"A mind which, though not diseased so as to provide evidence of
insanity in the legal sense, may be subject to a delusion,
or to some
erroneous belief or some defect, in circumstances which would make a
crime committed under its influence less repre­hensible
or
diabolical than it would be in the case of a mind of normal
condition."

But, as
is said in Hunt S.A. Criminal Law & Procedure 2 Ed. Vol. 2 p. 381
:-

"In many cases, psychopathy, or mental immaturity or some other
mental defect short of legal insanity has been considered
an
extenuating circumstance, but none of these is necessarily and in
every case extenuating. Furthermore, as SCHREINER J (as he
then was)
warned in R v Hugo, 'it is not every warped or prejudiced mind that
can be said to be suffering from a "delusion,
erroneous belief
or defect." There must be a clear element of abnormality. The
clouding of a normal brain by hatred goes no
further than the motives
giving rise to the hatred'".

26

The fact
that the appellant may believe his dreams does not, in my opinion,
show that he has a diminished responsibility. The contention
under
this head is closely related to the belief in witchcraft, with which
I shall deal below. Again, however wrong-headed the
appellant may be,
I do not think that diminished respon­sibility has been shown.

As to the
next contention, namely that someone other than the appellant should
have procured the leading of evidence of his mental
state: As I have
already said the onus of proving insanity rests on the appellant and,
as I have also already said, the onus of
proving extenuation is on
the appellant. It is not ordinarily for the Crown or the Court to
procure evidence of these matters.
No doubt if the Crown has
available evidence that the accused is insane, it should make it
available to the defence. There may
be rare cases where the Court,
after the presentation of the Crown and the defence cases, remains
concerned that the accused's
mental state has not been sufficiently
probed. In such cases it may be right that the Court causes evidence
to be led. But I do
not think that this was such a case. On all the
appearances the Court was dealing with a man who entertained a wicked
belief and
not one who was insane or whose responsibility was
diminished.

This
contention was given a new twist during the hearing of the appeal. It
was suggested that in some manner or another the appellant's
mental
state should be further investigated. One form that the suggestion
took was that the case should be remitted to the trial
Court

27

for the
hearing of further evidence. The problem that stands in the way of
this suggestion is that no case has been made out for
remittal. No
explanation is offered as to why the evidence contemplated was not
led before. Now is there any statement that evidence
is available or
that its nature is such that it may have a bearing on the result. I
do not think that there is any basis for acceding
to the informal
request now made. The other suggestion was that the appellant be sent
for mental observation. Again there is no
evidence suggesting that
there is any need for mental observation, save for the fact that the
appellant is young and says that
in the past he has acted on dreams.
I do not consider that to be a basis for such a step, particularly at
this late stage of the
proceedings. If doubts had been entertained by
the appellant's counsel as to the letter's mental state, en
appropriate application
should have been brought before or during or
even after the trial. I do not consider that this suggestion as now
advanced should
or could be acceded to.

As to
witchcraft : It has often been recognised by courts in Southern
Africa that a belief in witchcraft may, in some cases, constitute

extenuation: Hunt (op cit) p. 384. The locus classicus probably still
remains R v Fundakubi & Others 1948 (3) SA 810 (A) at
818-9. This
case was referred to by the trial judge. The relevant passage reads:-

"That a belief in witchcraft is a factor which does materially
bear upon the accused's blameworthiness I have no doubt; the
language
of Lansdown J P in Biyana's case (supra) seems to me to state the
position admirably. And it

28

follows that Pittman J P, was not correct in excluding that belief
from the consideration of the jury or the court, respectively.
...

We are not here concerned, on the one hand, with the so-called
'ritual' murders, in which the purpose is to obtain portions of
the
victim's body for 'medicine', or, on the other hand, with such
practices as that of murdering new-born twins. But even within
the
class of witchcraft murders with which we are here dealing, it should
not be supposed that the existence of a belief in witchcraft
must
necessarily and in all cases be treated as an effective extenuating
circumstance. The witch-doctor, who 'smells out' a victim,
may escape
responsibility for the subsequent murder because it cannot be shown
that he has done more than indicate the supposedly
guilty person,
without having instigated any violent action against him; but where
actual incitement to murder is brought home
to the witch-doctor it
would not, I apprehend, be right for the jury (or court) to find
extenuating circumstances in his favour
merely because it was found
that he was a firm believer in the dark craft practised by him."

As far as
I am aware the practice in Southern Africa (including Lesotho) has
been to punish ritual murder with death in the case
of principal
offenders. It is always dangerous to categorise classes of murder and
draw conclusions from the categorisation. But
I think that a broad
but clear distinction can be seen between the killing of a witch and
murder for ritual purposes (a distinction
which demonstrates that
however reprehensible "witch" - killing is, ritual murder
is worse). I am not suggesting, of
course, that "witch"
-killing is extenuated. The very passage just quoted demonstrates
that it often is not. But a person
who kills under the genuine belief
that he is bewitched is trying to ward off an evil force, as he sees
it, which threatens him
with death or some other disastrous
consequence. It is a sort of self-defence, however misdirected. The

29

ritual
murderer stands on a different footing. He kills not to ward off an
evil threatened by his victim but to confer a benefit
upon himself.

There is
nothing in this case to indicate otherwise than that the appellant
acted to strengthen his person or in some way advance
his position. I
can find no extenuation under this head.

There
remains the question of youth. I pass over the possibly controversial
question as to whether youth alone can constitute extenuation:
See
Hunt (op cit) p. 385. A problem about treating youth alone as an
extenuating circumstance is that a line has already been drawn
at the
age of 18 years. How many more lines are to be drawn? In general, I
think that youth must be weighed together with other
factors. One
must have regard to the personality, qualities, maturity, experience
and circumstances of the youth involved. (This
list is naturally not
exhaustive). The appellant does not seem to me to have been a man
acting simply as a deluded and inexperienced
youth. He had already
embarked upon a career with a better side and a dark side. It seems
to me that it was not youth but a choice
of evil that set him upon
his dark course.

Taking
all these matter cumulatively, I am of the view that it has not been
established that extenuating circumstances are present.

In the
result I would dismiss the appeals against the conviction and
sentence.

30

I have
had the advantage of reading the joint judgment of Mahomed and Aaron
JJA. and have given careful consideration to it. I do
not, however,
agree with the conclusion, because in my view of the evidence it does
not establish the immaturity and lack of inherent
wickedness which my
learned brethren are able to find in it.

In the
result the order of the Court, by a majority, is that set out in the
judgment of Mahomed and Aaron JJA.

Sgd W.P. Schutz

W.P. SCHUTZ

President

31

MAHOMED
AND AARON JJA.

We have
had the privilege of reading the judgment of Schutz P and are in
complete agreement with his finding that the conviction
of the
appellant on the charge of murder was correct.

After
anxious deliberation we have reached the conclusion, however, that
extenuating circumstances do exist and that the death sentence

imposed on him by the Court a quo should be set aside. It is not
necessary in the circumstances to deal with the application to
remit
the matter to the High Court to hear further evidence on extenuating
circumstances.

The
question before the Court when it is enquiring whether extenuating
circumstances exist is whether there are "facts bearing
on the
commission of the crime which reduce the moral blameworthiness of the
accused as distinct from his legal culpability"
(S. v. Letsoso
1970 (3) 5A 476 (A). In that case Holmes JA listed the matters which
a Court will consider in the following words:-

1. "Whether
   there are any facts which might be relevant to extenuation, such as
   immaturity, intoxication, or provocation (the
   list is not

   
   

exhaustive);

2. Whether
   such facts in their cumulative effect had a bearing on the accused's
   state of mind in doing what he did;

   
   

3. Whether
   such bearing was sufficiently appreciable to abate the moral
   blameworthiness of the accused in doing what he did."

   
   

See also
S. v. Babada 1964 (1) SA 26 at 27-8

S. v.
Smith and Others 1984(1) SA 592 H tp 593 C

32

The main
factor that was urged on us as constituting an extenuating
circumstance was the youth of the appellant: at the time when
the
offence was committed, he was three months short of his twentieth
birthday. While it is correct that youth in itself is not
to be
regarded as an extenuating circumstance, the approach of the South
African Courts over the past decade is that teenagers
ought generally
to be regarded as being immature, and therefore entitled to
extenuation unless the circumstances of the case are
of such a nature
that the Court feels obliged to impose the death sentence. (S. v.
Lehnberg; 1975 (4) SA 553 (A); S. v. Van Rooi,
1976 (2) SA 580 (A)).
In our view, this approach should be adopted in this country also.

In
Lehnberg's case, Rumpff CJ. stated that "the death sentence
ought only to be imposed on a teenager who has committed a murder
if
it actually appears that he killed out of inherent wickedness."
(The judgment was in Afrikaans: I have adopted the translation
into
English which is given in the head-note. The word which is translated
as "wickedness" was "boosheid").
I continue to
quote from the head-note:

"Such an approach does not mean that in such a case no onus
rests on the accused with regard to extenuating circumstances.
It
only means that a teenager is prima facie regarded as immature, and
on that ground extenuating circumstances can be found unless
it
appears that the wickedness of his deed rules out immaturity."

In S.. v.
Mapetsi, 1976(4) SA 721 (A), Rumpff, CJ took the opportunity of
explaining that the phrase "unless it appears that
the
wickedness of his deed rules out immaturity" did not, when taken
by itself, correctly

33

express
the intention of the Court in the Lehnberg's case. He stated (again I
quote the English translation of the head-note):

"Murder is always wicked deed, and whenever it has to be
considered whether the youthfulness of the accused cannot serve as

extenuation, then not only must the nature of the act be considered,
but also the motive with which the crime was committed, the

personality of the accused, and other relevant factors which, in the
particular instance, come to light to determine whether the
offence
was committed from the inherent wickedness of the accused."

It is
useful in this connection also to quote from the judgment of Miller,
JA in S. v. Ceaser, 1977 (2) SA 348 (A), where the following
was said
(at 353 B-F):

"A finding that a person acted from inner vice in the commission
of a crime does not imply that he has manifested vicious
or wicked
propensities throughout his life; nor is a long history of wickedness
necessary to such a finding. Primarily, the question
in any given
case (in the context under discussion, i.e. with reference to youth
as a mitigating factor) is whether the crime in
question stemmed from
the inner vice of the wrongdoer, whether he be a first offender or
one with many previous convictions. It
is in order to answer that
question that the Court will examine, and take into account as
indiciae, the wrongdoer's motive, personality
and mentality, past
history and whatever else is relevant to the enquiry. And, of course,
it will take into account the nature
of the crime and the manner of
its commission. (See the passage quoted above from the judgment of
the CHIEF JUSTICE in Mapatsi's
case). The concept of inner vice as
the genesis of a grave crime committed by a youth throws into proper
contrast the case of a
crime (perhaps equally dastardly) committed by
another youth who has, largely because of his youth and its attendant
degree of
inexperience, acted in response to outer influences; e.g.
under the pressure and stress of intense emotions induced by another
(Cf. Lehnberg's case) or under the direct or indirect influence of
one older than himself, or under circumstances which to him,
because
of his youth and inexperience, were provocative or emotive."

The
killing in the present case was a brutal deed, and

34

had been
planned by the appellant. His motive was no more than to enable
himself to practise his craft more effectively. He appeared
to
appreciate at the time that his actions were wrong. He was prepared
to murder any one of three possible victims who would agree
to come
with him. These are doubtless factors which tend to show that
appellant's actions were promted by "inherent wickedness".

But that is not the whole of the enquiry: the Court must also have
regard to the personality, environment, mentality, and past
history
of the appellant and to his degree or lack of experience and
sophistication.

There was
evidence that appellant's schooling terminated when he was but 13
years of age, and had completed standard 3. (At that
time, this would
have been equivalent to the present standard 1). He claims that he
then had dreams, in which he was "appointed"
as a
"traditional doctor" and enjoined to become a herbalist;
and from that time onwards, the years which would normally
have been
spent in his acquiring more education and maturity of judgment were
spent in teaching himself to become a witchdoctor.
The murder was
committed in order to equip himself better for this task...

On a
reading of the record of the trial, the appellant comes through as an
unsophisticated, semi-literate, rural youth, of below
average
intelligence, and out of the main stream of the normal activities of
boys of his age.

There is
no indication of stable or deep relationships within his peer group
from whom he must have become estranged by his departure
from school
at a very early age. His naive belief that he could be "appointed"
a traditional

35

doctor by
his ancestors through the medium of dreams and his decision to pursue
at such an age a search for herbs in the countryside,
to the
exclusion of his formal education and participation in the more
normal activities of adolescence, suggests a measure of
emotional end
intellectual immaturity. This must have become exacerbated with time,
because of the absence of intellectual stimulation
from his school
and friends, the lack of discipline inherent in a school education,
and his comparative isolation.

Moral
values are reinforced by strong encouragement in the environment of
what is good and wholesome, and corresponding censure
of what is
wrong. The relative isolation of the appellant and the quality of his
environment probably did not provide the optimum
measure of censure
against what was wrong. Many irrational beliefs are tolerated and
encouraged by even older men in an unsophisticated
environment. All
tills probably stunted his intellectual and emotional development. An
offence committed in these circumstances,
however heinous when
objectively perceived, reduces in some measure the moral guilt of the
offender.

When
these factors are considered in the light of his age, it is difficult
to infer that the appellant's conduct was in consequence
of any
"inherent wickedness" within him.

In our
view the cumulative effect of these factors had a bearing on the
appellant's conduct and that bearing was sufficiently appreciable
to
abate the moral guilt of the appellant.

36

The Court
a quo took into account the youth of the appellant but it failed to
appreciate sufficiently that this was prima facie
evidence of
immaturity and that the evidence did not support the conclusion that
the offence of the appellant was committed purely
from "inherent
wickedness."

This
Court is therefore at large to substitute a finding of extenuating
circumstances. Such a finding is justified by the evidence
and the
death sentence is not mandatory. Although the Court, in these
circumstances, still has a discretion to impose the death
sentence,
this is not justified on the evidence.

The
question then arises as to what is a suitable alternative punishment.
Here the brutality of the killing, the need to deter others
from
ritual murder, and the self-serving motive of the appellant, are
factors which call for a very severe sentence, even though

extenuating circumstances may have saved appellant from the ultimate
penalty.

Regard
being had to all the circumstances we consider that a sentence of 20
years' imprisonment would meet the ends of justice.

In the
result it is ordered that

1. The
   appeal against the conviction be allowed to the extent that there be
   substituted therefor a conviction of murder with extenuating

   circumstances.

   
   

2. The
   appeal against the sentence be upheld and the sentence of death be
   set aside.

   
   

37

3. The
   appellant be sentenced to 20 years' imprisonment.

   
   

Sgd I. Mahomed

I. MAHOMED

Judge of Appeal

Sgd. S. Aaron

S. AARON

Judge of Appeal

Dated at
Maseru this 29th day of January, 1985.

For
Appellant : Mr. W.C.M. Maqutu

For
Respondent ; Mr. S. Peete.