IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

VS

SENTSO
NCHOLO

TSOKOLO
MOCHEBELELE

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 6th day of October.
2005

The two
accused were charged

Count I:
with the crime of Murder it being alleged:

"In that upon or about the I8th day of July, 2000 and at or near
Ha Malefane in the district of Butha-Buthe, the said accused
did one
or both of them unlawfully and intentionally kill Mathapholane
Nkoaba. "

Count II:

"In that upon or about the 18th day of July, 2000 and at or near
Ha Malefane in the district of Butha-Buthe, the said accused
did one,
the other or both of them unlawfully and intentionally assault
Malefane Pitso with intent to cause him grievous bodily
harm."

Both
accused pleaded not guilty to the charge. It was P.W.I D/Tpr Jafeta's
evidence under oath that he has been a policeman for
14 years and
recalled events of the time. On 20/07/2000 he found the two accused
persons in his office already arrested on allegations
of assault and
murder. They said they had left exhibits at home. They had together
gone to their home at Ramalefane's to find the
exhibits and did so
voluntarily A2 had given him a white-and-green sjambok, a whip, a
chain and he had taken them to his office.

He says
they also went to Al's home being the one who handed the exhibits to
him and he had kept them in the exhibit room for them
to be
eventually produced in Court and exhibits were handed in marked: a
white-and-green sjambok Exh. 1, a whip Exh. 2, chain Exh.3.

Cross-examined
by Mr. Kolisang the witness has testified the exhibits were found in
A2ss home and the significance of the whip was
that it went with the
sjambok. He says on return from Ramalefane's he had made a report and
agrees with what he wrote in the report.

2

Both Mr.
Mokuku for the Crown and Mr. Kolisang for the Defence agree that the
exhibits were handed to the witness by A . Mr. Kolisang
shows the
Court P.W.1's statement which says A1 handed in a chain and whip and
the sjambok was handed in by A . The witness says
in his statement he
said the two accused gave him the exhibits separately; he also agrees
that the exhibits were handed to him
by A . Put to the witness one
statement or both are false the witness says the statement that A
handed the exhibits to him is a
correct one.

Re-examined
the witness has said the exhibits were in one house.

By the
assessor the witness has testified he kept the exhibits in his office
the Magistrate having authorized him to do so.

P.W.2
Sgt. Takalimane sworn has testified he is a policeman of 14 years in
the LMPS and is stationed in Butha-Buthe as D/Sgt. At
about 12 noon
accused persons had come to his office in company of a police-woman
saying they would explain themselves. Then they
were not under
arrest. After warning them they had given him an unsatisfactory
explanation. He had charged them and locked them
in police cell.
Having questioned them

3

police
had taken them to the scene of crime. In going on the scene accused
were normal and as for the warning it was accused's right
to give or
not to give an explanation. They had gone to scene of crime and
returning he locked them up and later taken to Court.

Cross-examined
by Mr. Kolisang the witness has testified when he gave the accused
the charge his investigations were not complete
and he did not deem
it necessary to await their completion and the report he received was
that somebody had died. Mr. Mokuku has
objected to Mr. Kolisang's
reference to Musasa Motsoene in that the latter can to speak for
himself and failing to do so reference
to what Musasa said would be
hearsay. The objection was sustained. That the deceased fled the
witness testified he did not know.
In answer to a question the
witness say he did question accused who said deceased and the other
boy had taken their money though
it emerged that it was not money
taken but dagga seized. That A1 would testify he fled chased by
villagers the witness testified
A1did not tell him.

Re-examined
the witness has testified if a person dies he is charged of murder
and the docket is taken to the Law Office for an
appropriate charge.

4

In answer
to assessor Mr. Matete the witness says the policewoman he referred
to is policewoman Molapo and he does not know how
she met accused and
he did not see the dead body.

P.W.3
'Manthabiseng Nkeaba sworn has testified she lived at Malefane's in
the Butha-Buthe district and she cannot read and write
and knows why
she is in Court being about her child. Regarding the child, A1 asked
her to release the child who had stolen his
things, it was in the
afternoon when he asked that the child be released though the
incident had taken place in the evening and
she had released the two
children Mathapholane and Steven. She accompanied the children to
Al's with 'Matsoarelo. At Al's he opened
a tin half full of dagga
saying the children had stolen the dagga. A1 was holding a stick and
Mathapholane fled. Other boys gave
chase returning him to A1's home.
When she took Mathapholane to A1 he was in good stead of health.
Returning from being chased
Mathapholane was still fit and not
assaulted, with no wounds. At this home A1 took a chain and rope and
fastened Mathapholane and
Steven. A1 took a stick and A2 came with a
sjambok. A1 attacked the boys with a stick. After being fastened with
a rope on their
wrists and chain on their feet they were taken
outside and tied to tree and could not free themselves and A1 beat
them

5

up, took
them to the dam and there beat them up dragging them to the dam with
a rope; in the dam he kept on bearing them up with
a stick. Taking
them out of the dam he led them to the tree and tied them again
taking out nails and hammering them into their
bodies against the
tree. People were gathered there and when I tried to rescue my child
'Matsoarelo would restrain me and I pleaded
with accused to ransom my
child with a donkey or kitchen scheme but A1 refused saying he is
giving vent to his emotions. She had
then gone to the chief to report
her child was being assaulted and her offer of paying ransom for the
child was refused.

Going to
the chief A1 had come after her and as she reported to the chief A1
said he had achieved his purpose and she had returned
to the scene
with the chief. Together with the chief and 'Matsoarelo they had gone
to A 's and it was night already and A2 was
around having come in
course of A1's assault of boys, having rushed home and returned with
a whip whipping deceased and Steven
after their return from the dam.
The chief came at a time when the boys collapsed and people ran away.
The chief had borrowed a
wheelbarrow from A1 and carried the deceased
and the chief and 'Matsoarelo were holding Steven on account of being
unable to walk
and he was taken to 'Matsoarelo's. when these things
happened it was winter. The

6

condition
of the boys on leaving A1's home in a poor state showing no sign of
life. Steven was able to talk but his neck would not
stand still and
Mathapholane was unable to talk and his neck swaying from side to
side because of wounds they had sustained. Deceased
had an open wound
on the head and above the eye and on the chest and near the bladder.
On the head it was an open wound and fracture
above the eye; there
were nail punctured wounds all over the body. Steven had a wound
above the eye and another above the eyes,
he also had wounds at the
back and was taken to hospital. She had then gone to report to her
in-laws. Men from her in-laws had
applied first aid with the hope
that the boys wound recover. The boys were removed from Al's at
midnight. A2 came at the time the
boys were being assaulted by A1 and
the sun had set. She says she is not sure if the sun had set. The
assault on the chicken took
a very long time for when the boys went
to A1's it was after school and were taken from A1's after midnight.
From the time A2 joined
A1 , the two assaulted the boys. Her boy was
taken to hospital by her in-laws and died on way to hospital having
been taken there
in the morning and they returned with the corpse.
From the time her boys was moved from A1's home to the time he died,
his son
had not sustained injuries. She says she does not know
whether other than injuries inflicted by A1 and A2 the deceased
sustained
other injuries. She says she

7

can
identify objects used to assault Mathapholane and Steven. Shown the
chain the witness says it is the one and the whip and sjambok
and not
the ones used. She says the plastic sjambok is not the one it was a
long one with strings and the stick was wrapped with
strings.

Cross-examined
by Mr. Kolisang the witness has testified when A1 started the beating
it was with a stick. She had not made a statement
to the police.

Put to
her on 07/11/00 she made a statement she says a statement may have
been taken from her but she did not remember. That in
the statement
she makes no mention of A having used a stick she says from the very
beginning A1 used a stick on deceased. She says
she was confused at
the time the statement was taken. Her son died in July 2000 and the
statement was taken in November, 2000.
She says A1 did show her a tin
of dagga saying the boys took dagga and the boys had admitted they
took it at the time of being
assaulted; she says it was at the time
the boys were brought to A1 when he showed them a tin of dagga. She
says this is what she
told the police and she is surprised it was
omitted. The witness has testified events took place a long time ago
and it is not
possible to remember everything.

8

She says
her boy was chased by Malefane's boys and the occasion was a calamity
and she had no opportunity to count those who chased
her boy. The
villagers were present but unwilling to help though the relationships
were normal. The witness says accused showed
her and 'Matsoarelo a
tin of dagga on Al's forecourt. In 2000 A1 was not working on the
road. She says there is no road in the
village and the policeman may
have misunderstood her. A2 had arrived at sunset long after the
assault had commenced. She says she
does not know shy some things she
said were recorded and others no recorded. The witness says as she
was confused she cannot deny
she did not say certain things to the
policeman. She says when A1 knocked nails into the body of her son
villagers were present
and she cannot deny this because she was
absent. The witness repeats: how can I say he produced a tin of dagga
when he didn't?
The witness repeats A led the children to the dam
towing them on a rope with their hands fastened and legs in chain.
Before chief
Lentsoe A1 said he had completed his task.

Re-examined
she says when her son was brought back from the chase he was not
beaten up but wet. By assessor Mr. Matete the witness
agrees her son
was hit with a stick by A .

9

By
assessor Mr. Mafatle she says she had cattle with which she buried
deceased; villagers were just looking and nobody intervened
even when
the chief arrived.

P.W.4
Motlatsi Lelingoana sworn has stated he lives at Malefane's
Butha-Buthe district and know that A1 came to P.W.3's home saying
he
had caught 'Matsoarelo's herdboy Steven for dagga and asked
'Matsoarelo to accompany him to the boy for a chat. Later Steven

arrived and asked he admitted he came from A1's place and they had
gone to A1's. A1 had called Mathapholane fled and was brought
back he
was present. At the time he was chased nobody assaulted Mathapholane.
The witness says one Lesasa arrived saying A1 had
said Mathapholane
was not to be assaulted and Mathapholane was wet for running along
the stream. The witness says when they handed
Mathapholane to A1 he
was not injured. A1 had then fastened Mathapholane and Steven with a
chain while Steven's hands were tied;
Mathapholane's neck was tied
with a chain fastened with wire. A1 had then taken them to a dam next
to his house and thrown them
into the dam the while whipping them. It
didn't take long and he returned them to his home and fastened them
to a tree. P.W.3 and
'Matsoarelo had pleaded with A1 to

10

pay for
the children and A1 had said he did not want payment they would pay
with their own bodies. In his presence A1 was alone
assaulting the
boys and he left. Returning to A1's it was 3 a.m. and he found A1 and
Paul in the house and the boys were being
sjamboked by A and
Mathapholane's had, lost power and weak and he noticed a wound on
Mathapholane's head and weals and whip marks
on his back; he also saw
a small wound on Steven's neck. Mathapholane's shirt was torn and
this is how he noticed the wound at
the back and both eyes were
bleeding; Mathapholane was bleeding at the back and Steven on the
neck. He says Mathapholane bleeded
from whip marks at the back. While
Steven was able to talk Mathapholane was no longer able to talk. The
witness has testified when
A1 caught the boys they were pleading for
mercy even when they were being beaten up. He says on arrival they
were shouting abuti
(brother) Molatoli come to our rescue. According
to the witness, the boys had been to A1's place from the time of
sunset to 3 a.m.
when he found them. He says he did ask accused
persons: you beat up these boys from the time cattle came home to now
i.e. 3 a.m.
and they did not reply save saying: take them away with
you. P.W.3 had arrived, asked for a wheel-barrow and Mathapholane was
carried
in a wheelbarrow. He says Mathapholane was carried in a
wheelbarrow because he could no longer walk perhaps because of he
wounds
sustained;

11

Mathaphoiane
could not stand. At Mathaphoiane's home it was found his private
parts were swollen, could no longer pass water, bled
and breathed
heavily. He was speechless and looked at them blankly. Steven's blood
had frozen but could walk albeit weakly also
urinating blood. Steven
was taken to a doctor the following day. Mathaphoiane was taken to a
doctor the same day on a scotch-cart
but died on the way to hospital.
He says at Al's the weapon used was a whip. Shown the whip he says it
is not the one for it was
longer, bigger and thicker.

Cross-examined
by Mr. Kolisang he says as a result of A1 asking parents that boys go
to him many people converged at A1's home.
He was present at A1's
whom they found on the forecourt and it was said the boys had stolen
dagga and had not entered through the
door. Mathaphoiane fled at
about sunset and he had not heard P.W.3 says her son could not go
into the house. A1 was furious and
agitated. The boys agreed they had
taken dagga. A1 said the boys and parents were to go into the house
to discuss the problem.
At the time of the chase Mathaphoiane had not
fallen even when he was caught and they returned with him and A1 will
not be telling
the truth that on being chased Mathaphoiane was
assaulted. He says it was good that A1 offered matter to be discussed
though when
Mathaphoiane was brought

12

back
accused was very angry. He says after the boys were tied there were
no discussions. The two boys were tied one on his wrists
and the
other with a chain round his neck. He says he doesn't believe it is
the chain he is sown for it was a chain like the one
before Court but
holding two people. He has denied A1 said Mathapholane was not to be
assaulted because there were no people assaulting
him. He says in his
presence chief Lentsoe did not arrive. As for the whip, it is the one
though not complete for the one was much
longer. He says in his
presence A1 did show the dagga for this was done on his arrival after
catching Mathapholane. He says he
knows nothing about money for all
he knows is about dagga; he denies knowledge of Ml,000.00.

NO-RE-EXAMINATION

By Court
the witness has said the boys were fastened on account of dagga and
whipped because of it. He returned to A1's at 3 a.m.
because the boys
were pleading with him for help. All of them had not intervened
because A1 warned them that was his home alone
and the way he was had
they intervened they could have got themselves into trouble.

13

P.W.5
Mongali Motsoene has testified under oath that he lives at
Malefane's, Butha-Buthe district. He says Musasa is his nickname
and
is illiterate. He knew seasons of the year. He says he knows why he
is before Court for in going past A1 had called him saying
people
chasing. Mathapholane were not to assault him; then it was winter. At
the time A1 called him he was going to the football
ground and had to
go past A1's home. He says the boys caught was wet to his thighs, not
wounded and healthy for none of the people
who chased him assaulted
him. They had arrested him, took him to A1 and found the parents
present and A1 said the boys had stolen
his dagga. He says when they
chased Mathapholane he was not assaulted even when he was handed over
to A1.

Cross-examined
by Mr. Kolisang the witness has testified Mathapholane was not being
assaulted in the chasing.

NO-RE-EXAMINATION

PW.6
Qabang Tsepo sworn says he lives at Selomo's Butha-Buthe district. On
days past he came to Malefane's following a report that

'Mamathapholane's child had been assaulted. He is related to

14

'Mamathapholane.
The witness has testified he found Mathapholane on the floor unable
to speak with a wound on the head and several
whip marks all over the
body up to the kidneys. He had learned Mathapholane died before
getting to the hospital and returning to
'Mamathapholane's found
Mathapholane had injuries to his private parts.

NO
CROSS-EXAMINATION

P.W.7
Lentsoe Malefane sworn has testified he is the headman of Malefane's
and remembered July, 2000 when he heard an alarm and
women saying:
met of this village are such cowards and they don't protect children.
Getting to A1 he found two boys namely Mathapholane
Nkoaba and Steven
Pitso tied to a tree. He had asked A1 what the matter was and he said
he was to inquire from the boys who said
that morning they stole A1's
dagga. Finding they were wet and asking the boys said they were made
to swim in the dam by A1. He
had begged A1 to release the boys all in
vain. At A1's Mathapholane and Steven's mother had asked him to help
have their children
released and he tried and failed. Even P.W.3's
offer to pay with donkey and kitchen scheme fell on deaf ears, for
all offers of
payment for the release of the boys were turned down by
A1 who said as he had

15

completed
his task he did not want payment. For the duration of his stay at
A1's, the witness says the boys were tied to a tree
with a chain, it
was cold and the boys were shivering. A1 had said other than release
the boys he would rather he was imprisoned.
He says at this home
Mathapholane was made to bask at the fire for he was cold. He saw
wounds on his head, private parts and weals
on the body and looked
paralysed unable to talk and not aware of anything. Steven had weals
at the back urinating blood, though
he as able to speak, he walked
weakly saying his spine was loose.

Taking
Mathapholane to hospital he died on the say. Steven had said he was
assaulted by A1 and A2 throughout the night and they
were released
after 3 a.m. in the morning. He says he took no action no action nor
did he report to the police and he did nothing
about A1 and A2.
Cross-examined by Mr. Kolisang the witness says when A1 said he would
rather go to gaol than release the boys
their parents were present
and would have heard this.

NO
RE-EXAMINATION

16

By Court
the witness says he did not see the dagga nor did he ask for it. He
did not have the boys released for fear of A1 afterall
these things
took place in his home.

Mr.
Mokuku intending to close Crown case the Court had wondered how
serious he was. On reflection Mr. Mokuku had asked for postponement

to find Steven when then medical reports would be handed in.

This
matter was postponed for several times to trace complainant Steven
who appeared on 29/09/04 after the last postponement on
12/11/03.

P.W.8
Malefane Pitso (alias Ramonotsi) sworn stated he lived at Pela-Tsoeu,
Leribe district; he was illiterate and could not tell
months of the
year or years themselves. He says he knows why he is before Court
being for the reason that they stole dagga and
were beaten up. Though
he could not remember day, month or the year, he does remember events
of the time when he lived at Malefane's
Butha-Buthe at Selomo's
herding cattle being 'Matsoarelo's cattle. On the fateful morning he
had left with Mathapholane to A1's
home to steal dagga. At A1's home
Mathapholane got through the window while he remained outside to keep
watch so that when the
owner

17

was
spotted they could flee. He had seen A1 coming and alerted
Mathapholane and they had both fled. A1 had given chase, did not

catch up with them for they hid themselves. At home it was said A1
had been looking for them saying they had gone to steal his
dagga.
When deceased emerged from Al's house, he did not have dagga. They
had nevertheless along with 'Matsoarelo and 'Mamathapholane
gone to
A1's home where as they were to go into Al's house deceased fled and
a chase was mounted in course of which A1 told P.W.4
to tell the
villagers the deceased was not to be assaulted. Villagers caught hold
of deceased and did not assault him. During the
chase deceased had
fallen into water but taken to A1's home and there they were fastened
with a chain and deceased was fastened
on the neck and his hands
fastened with a chain held with a wire tightened by means of a pair
of pliers. The chain was not fastened
to anything though the chain
was securely tightened to his wrists. One Bless and Sechaba put
questions to them and after the questions
they were taken to the dam
by A1 and the villagers. When taken to the dam the witness and
Mathapholane were in fit physical condition
and were dipped into
water by A1 and then he said they were to dive into the water. A1 had
taken them to his home and tied them
to a tree. 'Matsoarelo had
pleaded the witness be released as his hand was swollen and A1 had
said not before satisfying himself.
When the villagers

18

left A1
tied them to a tree sjamboking them. A1 continued on the assault even
when deceased pleaded with him that we be released
for his mother
would pay. A1 then insulted deceased saying you eat with your mother
and assaulted deceased by means of a rope with
a ring. On being so
assaulted deceased jumped up, the witness caught hold of him and A1
said the witness was to leave him alone.
A1 then ordered them to
undress and whipped them with a sjambok. At the time they were being
sjamboked both 'Matsoarelo and 'Mamathapholane
pleaded with A1 to
have the witness and Mathapholane released as they would pay and A1
said he did not want to be paid. A2 having
arrived A1 untied the
chain from the tree and A2 punched deceased. On arrival A2 had said:
where are those thieves and assaulted
deceased punching me (the
witness) and saying the witness was still fresh and when
'Mamathapholane left for home A ordered the
witness and deceased to
go back to the dam. The witness has testified going back to the dam
his condition and especially that of
the deceased was no good because
of a wound on the latter's head.

The
witness says they went back to the dam and were ordered to dive by A1
the while he was whipping them with a sjambok. The witness
says this
jumping into the dam and being whipped was not for a long time except

19

that
deceased's condition was no good but could dive. Then the sunset and
the moon was rising. They were taken to the dam after
sunset and
returning to the dam it was 7-8 p.m. They were returned to the house
and A2 asked whether they were being released and
A1 said he was not
finished with us and A2 left for his home. The witness says before
leaving A2 put a sickle round his neck and
the witness caught hold of
the sickle and A left for his home with the sickle. On his return A2
came with a plastic whip with A1
holding a sjambok and they were
whipped and taken to the dam and made to dive and by then it was
between 1-2 a.m. and about dawn
and they were released about 3 a.m.
by A1. He says all this happened in winter and it was July and A came
carrying a lath and A
a nail and A attempted to straighten a nail
mounted on a lath and the nail, a roofing nail was driven into him.
It was after this
that A1 said the boys could call their parents to
be released. The chain was released and they were freed about 3 a.m.
The witness
has testified Mathapholane was taken home in a
wheelbarrow in a bad condition and the witness was not so bad save
the nail driven
into him and he urinated blood with a bloody eye and
Mathapholane died on the way to seeing a doctor. He says he was
treated as
an out-patient.

20

Cross-examined
by Mr. Kolisang the witness has testified he was the only one pierced
with a nail. He says he did tell the doctor
his foot was pierced with
a nail. The witness has testified when A arrived the only wound
deceased had sustained was one on his
forehead and when A came
deceased's state of health was not that bad except the wound on his
forehead. He says A2 punched deceased
on the face and they were tied
round the neck with a chain. When their necks were tied they were
ordered to remove skipper and
jersey.

Re-examined
the witness says the chain was fastened in an upward position on the
tree.

By
Assessor Mr. Mafatle the witness says he does not know whether A1
used to give them dagga to smoke. To get in deceased went through
the
window and came out without dagga.

By Court
the witness has testified the dam was not that deep as it was made
for lucks and in diving they did not hurt themselves.

21

Mr.
Mokuku says as the doctor who prepared the medical reports is out of
the country and unavailable the medical reports are being
handed in
by consent and Mr. Kolisang agrees. Medical reports are marked Exh.
"A" collectively and they are read into
the record.

THE CROWN
HAS CLOSED ITS CASE.

After the
close of the Crown case, the defence has called D.W.I Sentso Ncholo
who sworn has stated he was born in 1969 and is married
with children
though they stay at their mother's home. The children were two the
first having been born in 1992 and the second
in 1994. He remembered
what P.W.8 told the Court. He says on the Tuesday he was at self-help
projects and the same day though he
cannot remember the time, the sun
had not risen and he went to Thobi's. Returning he saw the boys and
one was standing next to
an open window and he suspected the other
one was inside. The other one came out through the window and
together with P.W.8 they
fled. He says the window was closed and he
gave chase but they out-distanced him and he went to 'Matsoarelo and
'Mamathapholane
saying their children had spoiled his property and
both came in the afternoon. 'Matsoarelo and her son refused going
into the house
and on inquiry he

22

heard
'Mamathapholane say: "there Mathapholane flees." Molatoli
had given chase and returning there were many people accompanying

them; Mathapholane was arrested and it appeared he had a wound on the
forehead and limping and deceased said they had been assaulted

referring to those who chased him; he also said they threw him into
water; the witness says he said to deceased: "what happened
to
you is what you desired to happen to you." He says he asked
deceased about the Ml,120.00 he stole from his house and they
denied
they had stolen the money and they were released to their home.
Parents had returned at dusk about 8 p.m. and he does not
think he
kept the boys for about an hour. The witness has denied either that
he assaulted complainants or kept them at his home
until 3 a.m. or
that he threw them into or that he tied them to a tree on several
occasions and assaulted them. He agrees he fastened
their wrists and
whipped them with a whip (sephali). He says although he had said to
Musasa (P.W.5) that the boys were not to be
assaulted they were
assaulted. He also says he fastened the boys with a rope because they
would run away. The witness has testified
Ml,120 and not M3,000.00
disappeared. He whipped the boys for he wanted the money they had
stolen.

23

Cross-examined
by Mr. Mokuku the witness says he informed his chief that the boys
had stolen his money and the chief suggested he
meets parents and
pass on to the chief after an agreement is reached. He says the
parents said he was to tie them and whip them.
The accused says under
cross-examination A2 also beat up the boys because he said he was
also victim of household thefts. He says
parents allowed him to
chastise the boys as they would produce the money.

In
re-examination the witness says he has no watch.

By Mr.
Mafatle the assessor he says he knows Malefane (P.W.7) he is his
chief and got to his home on his call and he did not ask
or order him
to release the boys.

By Court
he says the wound was not dangerous and he used a whip and a chain to
tie them. He whipped deceased once and Steve (P.W.8)
four times and
the whip marks would not kill a person.

D.W.2
Tsokolo Paulosi Mochebelele sworn says he thinks it was on 18/07/00
when A1 came to him saying he found people damaging his

24

property
and they had fled. He says he was late returning from work and came
to his home at dusk and went to see A1 about people
who damaged his
property and he found he had tied them and looking at Mathapholane he
found he was already tired and he said to
Steven (P.W.8) this man is
unlike you for you are fresh? He says he went home holding a sjambok
since his mealie-crop was damaged.
He says he assaulted Steven
(P.W.8) with A1 and thereafter A1 left with the boys' parents to the
chief's place; A1 returned with
their parents and released the boys
to their parents who left with their parents but Mathapholane seemed
tired and it was impossible
for him to walk. He says he left with
members of the public to their respective homes.

Cross-examined
he says he came to A1's at dusk. He says when he came to A1 the boys'
hands were tied but not anchored to the tree.
He says he belaboured
Steve (P.W.8) with sjamboks and whip. He says they assaulted Steve
(P.W.8) only once. He says he cannot say
how many times he
administered strokes on Steven (P.W.8). The witness has admitted he
participated in the whipping at A1's home.
The witness says he
whipped the boys because he suspected they were the same ones
damaging his mealie-crop. He says from the time
he was at A1's home
and the time and when he got to A1's home it was 8 p.m. and the boys
were released at about 8.30 p.m.

25

When he
left, the boys were not released long thereafter and certainly not
late into the night. He agrees he went home to fetch
a plastic whip
which he used on the boys afterall he does not deny that he whipped
the boys. The witness has testified he is aware
from the time the
boys were whipped, released and Mathapholane died, nobody assaulted
the boys except A1 and himself.

NO
RE-EXAMINATION

THE
DEFENCE HAS CLOSED ITS CASE.

This is a
case in which two adolescent boys broke into accused l's home by
gaining access though a window to steal accused's dagga.
There is no
evidence that dagga was stolen though the intention was to steal it.
It would seem dagga was not stolen because the
boys were interrupted
by A1 who chased them and failing to catch up with them persuaded
their parents/guardians to attend him at
his home and the boys. It
was at A1's home that deceased fled being chased by the villagers who
brought him before A1. After deceased
was chased and caught, there is
overwhelming Crown evidence that the deceased was neither assaulted
nor hurt. In his evidence D.W.2
(A ) confirms this. Once the boys
(deceased and P.W.8)

26

were
before A1 Crown witnesses have given a chilling account of what
happened to the deceased and P.W.8 with P.W.4 and P.W.8 having
given
such a poignant account of punishment inflicted on deceased and P.W.8
by A1 and A2 , I have taken excerpts from their testimony
for
emphasis.

P.W.4
testified:

"From the time Mathapholane fled and was brought back I was
present. At the time he was chased nobody assaulted him —
when
we handed Mathapholane to A1 he was not injured —. P.W.3 and
Matsoarelo pleaded with A1 to pay for the children and
A1 said he did
not want payment they would pay with their own bodies —. On
arrival the boys were shouting abuti (brother)
Molatoli come to our
rescue — and the boys had been to A1's place from sunset to 3
a. m. —. He says he did ask accused
persons: you beat up these
boys from the time cattle came home to now i.e. 3 a.m. —
Mathapholane was carried in a wheelbarrow
because he could no longer
walk because of wounds sustained, his private parts were swollen and
he could no longer pass water and
breathed heavily looking at us
blankly — Steven's blood had frozen but could walk albeit
weakly also urinating blood."

P.W.8
(Complainant) testified:

"Matsoarelo pleaded I be released as my hand was swollen and A1
said not before he has satisfied himself.

A1 continued in the assault even when deceased pleaded with him that
we be released for his mother would pay —. Going back
to the
dam my condition was not good and especially that of the deceased
because of a wound on his forehead — then the sun
had set and
the moon was rising and we were taken to the dam after sunset at 8
p.m. We were returned to the house and A2 asked
whether we were being
released and A1 said he was not finished with us yet. A came with a
plastic whip with A holding a sjambok
and we were whipped, taken to
the dam and made to dive and it was between 1-2 a.m. and about dawn
and we were released about 3
a.m. by A1. This happened in winter and
it was July —."

27

It is
difficult to imagine a more harrowing experience. It was after this
ordeal according to Crown evidence that deceased and P.W.8
were
released with deceased in his death throes and P.W.8 a walking hulk.
Attention might also be drawn to the fact that the altitude
of this
country is very high with several, cold winter months sometimes
accounting, in some cases, to death by reason of exposure.

P.W.l's
evidence was primarily handing in exhibits while P.W.2 arrested
accused persons and charged them.

P.W.3 is
deceased's mother who testified A1 asked her to bring the deceased
and P.W.8 who stole dagga and she was present when A
and A assaulted
the deceased and P.W.8. 'Matsoarelo had restrained her in attempting
to rescue her child and A1 had refused her
offer of ransom to pay
with a donkey or kitchen scheme to rescue her child A1 saying he
wanted to give vent to his emotions. She
testified as a result of the
assault the boys collapsed and people ran away. She testified the
condition of children on leaving
A1's home was poor showing no sigh
of life, Steven was able to talk but his neck would not stand still
while the deceased Mathapholane
was unable to talk with his neck
swaying from side to side because of wounds

28

sustained.
Deceased had an open wound on the head above the eye, on the chest
and near the bladder; there were also nail punctured
wounds all over
the body. Steven had wounds above both eyes and at the back. It was
also P.W.3's evidence that after being chased
and handed to A1
Mathapholane was in good state of health. As to being tied to the
tree and nails driven into the deceased's and
P.W.8 body by A ,
P.W.8's evidence was that A had gone to his home at some stage and
returned with a lath at the tip of which was
mounted a nail which was
driven into him. Except P.W.8 saying this, no Crown witness has
testified to nails being driven into the
deceased or P.W.8 except the
latter's version which is in any event different from that of P.W.3.
I cannot lose sight of the fact
that P.W.3 was severely traumatized
as a result of the victim's sustained assault and that since after
the assault P.W.8 was still
able to communicate may have communicated
their ordeal to P.W.3, an ordeal which P.W.3 for reason of trauma
appears to have magnified.
Other than this aspect, I found P.W.3 to
be firm and unshaken in the witness box and I have had no reason to
believe her evidence.

I have
quoted material excerpts from P.W.4 and P.W.8's evidence, which in
material respects corroborates that of P.W.3 and like
P.W.3's
evidence, P.W.4's and P.W.8's evidence was in material respects
convincing

29

and the
Court has also believed it. I have found no conflict in successive
Crown testimony and in material respects the evidence
as a whole has
convinced this Court that what took place on the fateful day
regarding the deceased and P.W.8 is true.

All I can
say is that this was a most savage and uncalled for assault on
adolescents claimed to have stolen dagga; and while Crown
evidence
was that A claimed the deceased and P.W.8 had stolen dagga, there
wasn't an iota of evidence that dagga was stolen save
the boys having
gained entrance into A1's house intending to steal dagga. I have not
heard nor was it put to Crown witnesses that
A1 was angered by the
fact that the boys had gained entry into his house forcibly,
admittedly a serious crime given its repercussions.
Instead it was
A1's evidence in the witness box that the boys stole his money. This
defence was neither put to Crown witnesses
or P.W.8 for that matter.
It should have been put to P.W.3 as an excuse for A1 calling her and
the boys before him and also put
to P.W.8 as the alleged culprit and
none of this was done by A1 preferring to keep this to himself and
spring a surprise on the
Crown witnesses for them to deny or admit
the allegation. Having failed to do so, there can be no doubt that
this was an afterthought
amounting to a lie in my view. If not a lie,
at a time when boys' parents and

30

the boys
themselves pleaded to pay for their wrongdoing, it was time for A to
have said to them I want my money which the boys stole
to be paid
back to me. I cannot say that the boys were assaulted and tortured as
they were for breaking into A1's house for A1
has not complained of
this much as it is true, nor can I say the boys were punished by A
and A for stealing A1 's money for this
is untrue. A2 has said he
assaulted the deceased and P.W.8 because he believed them to be
thieves stealing his maize crop. Of course
deceased and P.W.8 were no
such thieves nor did they steal Al's money as he claimed. I cannot
but look upon both A and A as no
more than common thugs glorying in
acts of brutality. Nor indeed can I accept even if A1 was in any way
wronged by the boys to
have entitled himself to take the law into his
hands as savagely as he did. Both A1 and A2 acted as they did not to
chastise the
boys but to teach them a lesson they would never forget.
The savage and sustained assault on deceased and P.W.8 from the time
cattle
came home to 3 o'clock in the morning on a cold winter night
is pointer to the intention of both A1 and A2 to bring about the
desired
result. Not only this, when complainants and their parents or
guardians as it were offered to pay for any of complainants'
wrongdoing,
there is Crown evidence that A1 refused saying he wanted
complainants to pay with their own bodies or words to that effect
adding
he wanted to satisfy himself and as it turned out

31

he
satisfied himself by bringing about Mathapholane's death and maiming
P.W.8 grievously. I reject with impunity Al's assertion
that he was
allowed by deceased's and P.W.8's parent and guardian respectively to
punish the boys.

Whether
or not there was the necessary intention to kill and cause grievous
bodily harm I have no doubt in my mind the Crown has
proved such
intention. The intention nevertheless takes a number of forms though
I will be here concerned with dolus directus and
dolus eventualis.
Dolus directus is directing one's will to bring about the result as
or it were death. Although accused persons
had the intention to kill,
I do not think I it is the type known as dolus directus being, in my
view, dolus eventualis which in
several cases has been described
thus:

"The proposition is well established in our law a person has the
necessary intention to kill if he appreciated that the injury
which
he intends to inflict on an accused may cause death and nevertheless
inflicts that injury reckless whether death will ensure
or not."
(see Thibane 1949 (4) SA 720 (A) 729: Hurbsch 1953 (2) SA 561; Nsele
1955 (2) SA 145 (A) 148: Horn 1958 (3) SA 457
(A) 464. 466: Malinea
1963 (!) SA 692 (A) 694; Mini 1963 (3) SA 188 (A) 190).

And in
Mangondo 1963 (4) SA 160 (A) 162; Sigwahla 1967 (4) SA 566 (A) 570 it
was said:

"It is sufficient if the accused subjectively foresaw the
possibility of his act causing death and was reckless of such
result."

32

The test
of dolus has been expressed thus:

"The test for such dolus is whether the appellant subjectively
foresaw the possibility of death resulting from his assault
on the
deceased, but persisted therein reckless whether such possibility
became fact."

The above
quotations and observations thereof fit in squarely into the present
case. I have already said that its far-fetched to
say accused persons
directed their will towards bringing about death; on the contrary,
they were determined to assault their victims,
were well aware of the
consequences that may follow and in spite of this continued
assaulting the deceased and P.W.8 reckless of
whether they died.

Has to be
taken into account that as to accused 1 and accused 2's intention
regarding the deceased and P.W.8, it was the same for
these suffered
the same grievous injuries with deceased succumbing to his injuries
and P.W.8 surviving probably because of his
physical fitness or other
factors unknown to the Court. That P.W.8 survived the assault has
nothing to do with whether or not the
assailants had no intention for
the intention was one to punish the victims reckless of the
consequences and I make bold to say
that P.W.8 survived is God's
grace. In the result, I have wondered whether accused persons are
guilty of attempted murder in the
2nd count. Since in this case it
was not merely an attempt but there was consummation deceased

33

and P.W.8
having been beaten to pulp and P.W.8 surviving the assault somehow,
it does not seem that this was attempted murder.

The
remarks I have made are not conclusive and are to be looked upon as
antecedent to the yet more somber and pertinent remarks
in this case.
There was evidence of a woman reacting with revulsion at cowardice of
men of the area witnessing the unrestricted
assault by A1 and A2 of
the young boys without so much as the raising of a hand. These things
have happened before and they keep
on happening as was witnessed by
the merriment of the gallery in Roman gladiator combats. In our own
time fans shout in a boxing
contest: kill him, wring his neck. The
spectators in this case must have looked upon the two young men as
real thieves for stealing
A1's dagga. But there's another factor to
the so-called yellow-bellied appearance of P.W.7's men; as P.W.7
testified he was fearful
of interfering for these things happened in
A1's home. Of course to P.W.7 and ordinary subjects, a man's home is
his castle. This
notwithstanding, in material respects P.W.7's
evidence was no different from that of P.W.3, P.W.4 and P.W.8, indeed
P.W.7's evidence
was so strong it was hardly challenged by Mr.
Kolisang and this Court had no reason but to believe it.

34

Mr.
Kolisang for the accused has submitted that the Court should direct
its mind as to whether had deceased and P.W.8 not committed
crimes of
housebreaking with intent to steal and theft whether the assaults
would have taken place. The Courts reaction to this
is that the Court
has shown supra, while it may be said that there was housebreaking,
A1 did not in his evidence claim the boys
to have broken in and
stolen his dagga. And while there was overwhelming Crown evidence
that A1 claimed the boys to have broken
in and stolen his dagga, A1
did not tax Crown witnesses for theft of dagga but alleged theft of
money. As I said above, the defence
was an afterthought and at worst
a lie and the Court has rejected it as false. As to a wound on the
frontal bone fracture of deceased
inflicted by 1st accused, there was
evidence by P.W.8 that returning A was holding a lath fitted with a
ring with which A1 hit
deceased and when the latter was hit he jumped
suggesting, in my view, that deceased recoiled in pain. Even if this
was not the
case, since it was Crown evidence which this Court
believed that after deceased was chased he ha sustained no injuries
even when
he was handed over or released to A1, but that it was after
he was released to A1 and released by A1 that he was seen to have
sustained
injuries and physically helpless, his Court is of the view
that injuries sustained by deceased and

35

P.W.8
whatever their nature, were sustained at the instance of accused 1
and accused 2.

Mr.
Kolisang does not seem to have paid close attention to the evidence
of accused 2 and DW2 who told the Court.

"I returned home to fetch plastic whip which on return for the
second time I used the whip on the boys. I don't deny that
I whipped
the boys. I am aware from the time the boys were whipped and released
and Mathapholane died nobody assaulted the boys
except accused 1 and
myself."

I have
had a look at the Postmortem Report and Medical Form and find that
the Dr. has recorded that death was due to "Head-injury
plus
multiple bruises plus abrasions all over the body." In his
remarks the Dr. has also remarked "the deceased has got
the
frontal bone fracture haematoma. But there is also extensive bruises
plus abrasion all over the body."

With
respect, these doctors' findings and remarks are, in this Court's
view, consistent with Crown evidence.

As to
medical form subject-matter of Count II the Dr. has found there were
multiple haemotoma on chest, back, arms and forearms
plus multiple

36

whip
marks on face, chest back, hand, lefts and face with injury to the
left eye and in addition the Dr. has found the degree of
force
inflicted to be severe while danger to life is moderate immediate
disability being severe with no long term disability. In
this respect
too, the Court finds the Dr.'s findings and observations are
consistent with Crown evidence.

This
Court comes to the conclusion that by assaulting deceased as they did
accused persons had the intention to murder accused and
by assaulting
the complainant Malefane Steven accused persons had the intention to
cause the said Malefane Steven Grievous Bodily
Harm.

The Crown
having proved its case beyond reasonable doubt the Court finds:

COUNT I:
Both accused guilty as charged.

COUNT II:
Both accused guilty as charged.

My
assessor Mr. Mafatle agrees.

37

G. N.
MOFOLO JUDGE

6/10/2005

For the
Crown: Mr. Mokuku

For the
Defence: Mr. Kolisang.

38

EXTENUATING
CIRCUMSTANCES:

I agree
with Mr. Kolisang that though I dismissed A1's excuse for the assault
as trespass or gaining entrance into his house though
the window,
however slight or minor the trespass may have been, it serves as an
extenuating circumstance. Mr. Kolisang hs also
submitted but for the
boys gaining entrance as they did had they not done so the incidence
would not have taken place and that
this also serves as an
extenuating circumstance. Although the two factors appear more or
less the same, I am of the view that taken
together they operate as
an extenuating circumstance.

Taking
into consideration the fact that accused persons did not direct their
minds to bringing about the result but were reckless
whether death or
grievous bodily harm resulted from their assault, I find that there
are extenuating circumstances.

39

In
mitigation of sentence the Crown has submitted there are no previous
convictions. Mr. Kolisang have said both accused have families
with
young school-going children and accused are only subsistence farmers.
He has also used the Court to consider as mitigating
circumstances
the fact that accused I could have been upset by the boys gaining
entry through the window and had they not so gained
entry the
incident would not have occurred.

But I
cannot ignore the fact that deceased and P.W.8 were ad descends
engaged in a frolic which turned into a nightmare. To accused

undoubtedly this was not a frolic but a serious matter deserving
severe punishment. I agree though this Court cannot tolerate the
fact
that accused 1 assisted by 2 took the law into their hands and
dismissed the boys and their mother/guardian's offer of ransom

accused 1 electing to along with accused 2 visit the harshest
possible punishment on the boys. I am not able to comprehend what

induced accused persons to have acted as sadistically as they did
except being under the influence of narcotics. But I do not accept

this for neither in their defence or mitigation of sentence have
accused raised having been influenced by narcotics nor indeed
was
there Crown evidence to the effect. The fact alone that accused 1
possessed dagga does not mean that

40

he took
it. In my long legal practice I have known men and women dealing in
dagga but not taking it, I cannot but conclude that
accused persons
acted as they did in their sound and sober senses.

In my
view, despite the mitigating circumstances adduced which I have taken
into consideration plus the fact that accused persons
are first
offenders, the crime they committed is heinous deserving
corresponding punishment. Although the quality of mercy dropeth
as
gentle rain, interest of justice demand that accused persons be
heavily punished to sent out a signal out there to the like-minded
as
to what may happen to them should they behave in similar fashion

In the
result accused persons are each sentenced to 12 years imprisonment
1/2 of which is suspended for two years on condition that
during the
period of suspension accused persons are not convicted of a crime
involving assault or murder.

I am to
mention that in course of the trial the assessor Mr. Matete failed to
attend the trial and he was excused leaving Mr. Mafatle
as assessor
who has agreed with me in this regard.

41

Any
exhibits produced are to be destroyed.

21/10/2005

For the
Crown: Mr. Mokuku

For the
Defence: Mr. Kolisang

42