CRI/T/103/01
IN THE HIGH COURT OF LESOTHO
In the matter between:-
REX
and
SELIBO SELIBO 1STBACCUSED
KUMI KUMI 2ND ACCUSED
POLOKOE MPEPEA 3RD ACCUSED
THABANG MASOKELA 4TH ACCUSED
LETHABO NTJELO 5TH ACCUSED
JUDGMENT
CORAM : HON. MR JUSTICE S.N. PEETE
ASSESSORS: MESSRS KHOBOKO AND MONATHI
DATE : 15™ JUNE 2004
[1] The five accused are summarily indicted upon a charge of murder it being alleged that on the 9th day of January 2000 at or near Ha Seeiso Roma in the district of Maseru, the said accused did one or other or all
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of of them unlawfully and intentionally kill Mantsonyane Masokela. To this charge all accused pleaded not guilty.
[2] The Crown called Mahapa Mokopi P.W.I who informed the court that he and all five accused are co-villagers of Khokhotsaneng - Roma, ha Seeiso and that on the early evening of the 8th January 2000 an alarm was raised about one Thabang Ntsane who was attempting to rape one Mankotseng Matlakeng - a breast - feeding woman in the village.
[3] He says that this offending Thabang Ntsane was soon detained by the villagers and men sat down to guard him till he could be handed over to the police. He says that all five accused were present among the men guarding Ntsane.
[4] He says (hat later that night Accused No.3 came around them announcing audibly: "I ask all men of the mountain to go and speak'' - and he asked, "where are you going'' - since he did not know who "men of the mountain were". Accused No.3 said, "they know themselves".
[5] He goes on to say that Accused No.l, No.2, No.3, No.4 and No.5 including one Aupa Lepheane and the deceased stood up and all of them left them guarding Ntsane. These men said, We are coming back".
[6] P. W. 1 says he has never been to a circumcision school.
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[7] Early that morning he and other men (including Potlako Masokela, deceased elder brother) got a letter from the Chief forwarding the offending Ntsane to Roma Police station.
[8] En route to Roma Police Station, they passed a man and a woman walking behind a donkey who alerted them about a corpse lying
prostrate near a footpath.
[9] As he approached he says he recognized the deceased by his blanket he wore on the previous night and that Potlako Masokela
immediately identified the prostrate man as his brother. His body had whip marks all over.
[10] They noticed footmarks trailing to the donga; these they followed till they reached a spot in the donga where they saw many
broken tree branches and a belt. They then raised an alarm having immediately returned to the village. He was with Dyke and Thabang.
[11] He concluded his evidence by stating that all five accused were missing from the village that morning; and that they came back into
the village only upon their release on bail.
[12] PW.2 Potlako Masokela told the court that he knew all the accused.
[13] He says that he knew that Thabang Ntsane had been detained on the 8th January 2000 because he had assaulted someone's wife. He did not
guard him overnight though.
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[14] He says that on the morning of the 9 January 2000 they came upon the dead body of his brother near a donga; and upon further
inspection they saw that his shoes were missing and it looked as if he had been dragged from the nearby donga.
[15] When the police arrived, he says he then noticed whipmarks all over the body.
The police then took the body to the Government Mortuary at Queen II
[I6] PW.3 Directive Trooper Tsalong told the court that he was stationed at Roma Police Station when a letter from the chief of
Khokhotsaneng arrived reporting about the death of the deceased.
[17] He, Moeletsi and Seeisa - all police - went to the village of Khokhotsaneng and were led to house where a body was shown to them; apparently the body had been carried from the veld where it had been found and transported into the village to await police.
[18] Having inspected the body and observed the whip marks and weals they then went to the scene where the body was first discovered.
[19] In the nearby donga, they saw tree - a blue wattle plantation and at one spot they found many broken tree branches - they also saw a rope lying nearby.
They later took the body to Maseru for post mortem examination.
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[20] He says a day after the 9th January he got a report from Maseru Central Charge Office concerning the accused and he later went to Maseru where he found the five accused who made some explanations But said "those are issues of men of the mountain"
He handed as exhibits a bundle of sticks Ex.I as being those he collected from the donga.
[21] Under cross examination of Mr Fosa for the accused he admitted that it seemed some people had been to the scene prior to their arrival at the donga but that the tree branches looked freshly cut.
Question: How did you learn the accused came to the Maseru
Charge Office?
Answer: I learned that they had surrendered themselves.
Question: Accused deny surrendering themselves to police or giving
explanations?
Answer: They did ... on the 9th January 2000.
Question: They say they were arrested individually?
Answer: That is not so.
[22] P.W.4 Sello Masokela told the court that on the 9th January 2000 he had received a report concerning his brother and upon arrival he had found the prostrate body of his brother with weals over his body; he was bleeding slightly from the nostrils.
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He says that after tracing the trail and finding many broken tree branches in the donga, they waited for the police to arrive but that towards midday, it was decided to take the body into the village as the body was now beginning to swell. No cross examination from Mr Fosa.
[23] PW.5 Dyke Noko confirmed in essence what P.W.I had already told the court-namely that Accused No.3 had asked the "men of the mountain" to go out and talk and that all accused including the deceased had left their company which was guarding Thabang Ntsane. He says the accused never come back; he only saw them when they were released from custody on bail.
He went on to say that as they were escorting Thabang Ntsane to Roma Police Station they came upon the prostrate body of the deceased.
[24] The crown counsel Mr Seitlheko then handed in with the consent of the defence, a post mortem report by a certain Dr Lukemba
-purportedly made on the 13th January 2000. The report states that death was due to severe injury complicating subdural bleeding on a fairly nourished person. Death attributable to assault.
No cross examination.
[25] PW.5 Sergeant Matsela then informed the court that on the 10th January 2000 at the Maseru Central Charge Office she was on duty
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when five men arrived and reported themselves to policewoman Matela indicating that they "had killed a person"'' She says she noted down their names in the Police Occurrence Book - It read:-
"551 1655 - Arrest: Sgt Matsela arrested the following
suspects: Selibo Selibo, Kumi Kumi, Thabang Masokela, Polokoe Mpapea, Lethabo Ntjelo -Charge - Murder - RCI 17-1-2000."
A certified copy of this O.B. note was handed in.
[26] She identified the five accused in court as the men who surrendered themselves at the charge office on that day. She explained that in police practice when a suspect surrenders himself, the record reads: "Arrest and not "surrender".
[27] She says that the accused were later transferred to Roma Police Station who had been radioed.
[28] Under cross examination she says she could still recall the faces of the accused "I have that special gift by God" she quipped.
[29] After the crown had closed its case, an application for discharge of all accused at the close of the crown case was made by Mr Fosa under section 175 (3) of the Criminal Procedure and Evidence Act of 1981. I dismissed the application and my reasons were given therefor.
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Mr Fosa then closed his case without calling any of the accused. [30] Section 12 (7) of the Constitution of Lesotho of 1993 reads thus:-
(7) "No person who is tried for a criminal offence shall be compelled to give evidence at the trial."
Under our law an accused can elect to close his case - as the accused have done - after the close of the crown case. Three situations can obtain:-
where there is no evidence implicating the accused;
where there is prima facie evidence against the accused but not conclusive;
where there is strong evidence implicating the accused.
[31] In (a) accused need not give evidence and he must be acquitted; for (b) and (c) if the evidence is direct and credible, the failure of the accused to give evidence to rebut such evidence may render such evidence conclusive - S v Theron 1968 (4) 61 where TroIIip and Trengove JJ had this to say at page 63 H to 64 C.
"Generally, in regard to an accused's failure to testify, a useful, practical distinction can be drawn between situations in which the State's case is (i), if the testimony is wholly credible or non-credble, no problem arises, for in the former case the
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the accused's failure to contradict the credible evidence must and, in the latter case, it would be irrelevant: there would then be no prima facie proof and the accused silence could not make or restore the State's case. It is only when the State's evidence, although amounting to prima facie proof creates some doubts about its credibility that the accused's silence becomes important, and may be decisive, for his failure to contradict the State's evidence may then resolve the doubt about its credibility in the State's favour. Of course, if the accused adduces other . evidence to contradict the State's, his silence would then usually lose much, if not all, of its importance. Similarly in (H) if the inference of the accused's guilt or innocence can be drawn with the requisite degree of certainty, the accused's silence is unimportant. It is only of importance if, although there is prima facie proof of his guilt, some doubt exists whether that proof should be now regarded as conclusive, that is, that the only reasonable inference from the facts is one of guilt. His silence then "becomes a factor to be considered along with the other factors, and from that totality the Court may draw the inference of guilt. The weight to be given to the factor in question depends upon the circumstances of each case. " (per Holmes J.A, in S v Letsoko and Others, 1964 (4) SA 768 (A.D.) at p 776 C-E. See also R v Ismail, supra, p210 S v Atasia. (A.D.) 1962 (2) SA 541 (A.D. atp.546E-H). "
[32] In litis case following are uncontroverted facts of the case.
That accused Wo.3 called up all "men of the mountain" to rise and r.o for a talk.
That the deceased joined this group of the men of the mountain with all accused included.
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That the dead body of the deceased was found with weals all over the body on the following morning. There is no direct evidence to assault itself,
That the accused were no where to be seen on the following morning and thereafter till they returned upon release on bail.
On the 10th January 2000 all accused surrendered themselves to the Maseru Central Charge Officer and made explanations regarding the death of the deceased.
That the accused and deceased were all men of the mountain.
[33] In the natural course of things, innocent people do not report or
surrender themselves voluntarily to the police and make explanation regarding death of someone in whose company they were last seen with.
[34] The accused have elected to close their case without leading evidence in the face of a strong circumstances case against them. That the circumcision "koma" prohibits them to reveal anything they did at the donga to the deceased does not stand them in good stead. That is their "law or koma" and one which is hardly recognized by this court.
[35] I am convinced that for whatever reason (which the accused saw fit not to divulge to this court) - the accused one or other or all of them assaulted the deceased with tree branches causing his ultimate death -
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which they however ought to have foreseen. I hold that the crown did not succeed to show that they intended to kill in a subjective or legal sense.
I find all the accused guilty of the crime of culpable homicide.
Crown Counsel: No previous convictions
Mr Fossi: In mitigation.
Sentence: Each accused shall receive five strokes and in addition thereto each shall pay M1000.00 to be all paid over to the widow of the deceased before the end of November
2004.
S.N.PEETE
JUDGE
For Crown : Mr Seitlheko
For Defence : Mr Fosa
