CRI/T/96/03

IN THE
HIGH COURT OF LESOTHO

In the
matter between

REX

V

KALI
LENTSO

JUDGEMENT

DELIVERED
BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 18™ FEBRUARY 2005

IDENTITY
OF THE ACCUSED

1. By
   direct evidence - Eye witnesses saw and identified the accused at
   the scene of the crime....................witnesses had prior
   and
   thorough knowledge of the accused.

   
   

2. By
   circumstantial evidence - The accused is the owner of the gun used
   to commit the alleged crimes. There is no evidence that
   the gun was
   not in his possession at the time he was seen and identified at the
   scene of the crime. There is evidence that the
   gunman - Identified
   as the accused was using the gun that night.

   
   

3. Ballistic
   evidence established that the dead bullet and shells found at the
   scene of the crime were fired from the accused person's
   gun.

   
   

4. Murder
   - Causation..........Medical evidence as to the cause of the death.
   Post-mortem examination revealed that the death of
   the deceased was
   done to gunshot wound. The bullet retrieved by the doctor from the
   body of the deceased, was found to have been
   fired from the
   accused's gun.

   
   

SUMMARY
OF THE CASE

The
accused had lived for many years in the village. He grew up in that
village. He was known to everyone thereat. He also knows
every
villager thereat thoroughly. He had been absent from the village for
many years as he works in the Republic of South Africa
where he
resides. He also has established his own home elsewhere. He pays
regular visits to his village because although he has
left, his
parents, brothers and sisters still live there. He went there to be
with his family for the Christmas of 2(H)].

One of
the villagers was attacked by the gun man the night of the 24!h
December 2001. the villagers who were the members of the
congregation
of the church in the village had assembled for the Christmas night
vigil when the alarm was raised that one villager
is being attacked
by the gun man. The members of the congregation rushed to the scene
to rescue from that attack - the victim of
the gun man. In the
process one of them was shot and killed by the gun man. The other was
shot and injured on the right hand wrist.
The third victim was
assaulted by being hit on the head with an iron rod or a stick. All
these villagers had a thorough prior knowledge
of the accused. There
was moonlight that night. The victims of assault had an opportunity
to see the accused in the moonlight at
a very close proximity while
engaged in an actual physical struggle with him during the assault.
The accused was seen as he took
aim and shot at the one of the
witnesses. The accused was observed at a close proximity by the
witness who ran away from the scene
of the crime as the accused fired
shots at her own house entrance from which the witness had just
escaped because she felt she
was choking on a gunfire smoke.

2

The
accused handed his firearm to the police. Ballistic tests carried out
establish that the dead bullet found and retrieved hy
the doctor from
the body of the. deceased was fired from the accused' s gun. The
shells collected at the scene of the crimes were
found to have been
fired from the accused 's gun. There is no evidence that the accused
ever lost the possession and control of
his gun prior to or during
the period in question.

Held:- It is proper for the court to find that the identity of the
accused is established where there are eye witnesses who had
an
opportunity to see the accused properly and did in fact had a good
look at him and identified him.

Held:- It is safe to presume that the registered or licenced owner
of the gun is the person who had the physical possession and
control
of his or her gun, where there is no evidence that the gun went
missing from his or her possession at the time in question.

[1]
CHARGES

The
accused is charged with three counts. In the first count, the accused
is charged with the crime of MURDER. It is alleged that
on the 24th
December, 2001 at LESOBENG HA MOLIA, in the district of THABA -TSEKA
the accused did unlawfully and intentionally kill
one RETSEUSUSOE
LEHLOENYA.

In the
second count the accused is charged with the crime of ATTEMPTED
MURDER. In that upon or about the 24th December, 2001 at
LESOBENG HA
MOLIA in the district of THABA-TSEKA the accused did unlawfully shoot
at one MOLATO LINKOANE with the intention of
killing him.

3

In the
third count the accused is charged with the crime of ASSAULT. In that
upon or about the 24th December, 2001 at LESOBENG in
the district of
THABA-TSEKA, the accused did unlawfully and intentionally assault one
TSABO NYELIMANE by striking him with an iron
bar or a stick on the
head - causing an open and bleeding wound.

[2] FACTS

On the
24th December2001, at about (10) ten o'clock at night, one MATHABO
MOSENYE/SHETLENG was in bed with her husband -MAHLOMOLA

MOSENYE/SHETLENG. She felt the smoke that was choking her therein.
She hurried or ran out of her house in an effort to escape from
that
smoke. As she came out of her house she ran towards the field
adjusant to her house. She heard the gun report. She looked
back and
saw this accused standing by the side of the entrance of her house
from which she had just emerged.

[3] ALARM
RAISED

MATHABO
MOSENYE ran into the maize field crying out for help. She cried out
that MAHLOMOLA is being attacked with guns or being
attacked by a
gunman or words to the effect. One TSABO NYELIMANE heard the alarm.
He was outside the church where the huge congregation
had gathered
for the night vigil. He went into the church and informed the
congregation that he heard the cry of MATHABO MOSENYE
that MAHLOMOLA
MOSENYE is being attacked

4

with a
gun. The church service was stopped. All the members of the
congregation decided to go to rescue MAHLOMOLA MOSENYE from that

attack. While the congregation was proceeding to MAHLOMOLA MOSENYE'S
residence they heard more gun reports. They split up into
two groups
for the purpose of catching the attacker. Each group was blocking the
attacker's way out of MAHLOMOLA MOSENYE'S premises.

Some of
them rolled rocks towards the attacker - who ran away. They gave
chase after him, throwing stones at him as he fired at
them. TSABO
NYELIMANE was in a group which way laid the attacker as he ran from
MAHLOMOLA MOSENYE'S residence. Seeing that the
attacker was going to
run over him TSABO NYELIMANE stood up. He grabbed hold of the
attacker. They struggled. TSABO shouted to
his colleagues thus -
"here he is. I have got him". The accused hit TSABO with
something like a stick or iron bar on
the head - causing an open
wound which bled profusely. The blood was coming down his face to
cover the eyes. Because of the injury
and the loss of blood TSABO
became weak, he suspects. As the accused belabored him with the
weapon described above TSABO warded
off the blows. A fifty five (55)
years old TSABO NYELIMANE was overcome by the younger man - 45 years
old accused. TSABO was not
only busy warding off the blows and trying
to detain the accused, he was also forced to keep wiping off from his
face the blood
which was flowing down his face to cover his eyes.

5

IDENTITY
OF THE ACCUSED as TSABO grabbed hold of the attacker. The struggle
ensued. TSABO recognized and identified the attacker
as KALI - this
accused. After shouting to his colleagues that he was there at his
side, KALI hit him on the head with the object
which could be a stick
or an iron bar.

TSABO
cried "KALI o mbatile" translated "KALI has struck me"
KALI freed himself from that old man and ran off.
He crossed the
stream, TSOKOUSO, RETSELISITSOE, SERUOE, MATJALA and MOLATO LINKOANE
were there in hot pursuit of this accused.
Once across that stream
the accused discharged his firearm thrice. It would appear he shot
RETSELISITSOE who fell and died on the
spot.

He shot
MOLATO LINKOANE - Pw3 (hereafter referred to as MOLATO). He hit him
on the right hand wrist which sustained the bullet entry
and also
exit wounds. Though the members of that congregation managed to
rescue MAHLOMOLA from the attack, the attacker got away
after killing
one of them and injuring two others.

[4]
DEFENCE CASE

The
accused pleaded not guilty to all the charges. He denies each and
every incriminating allegation made against him. The accused
and all
the witnesses live in the same area although in two different
villages.

6

The
accused person was born and grew up in that area. He knows every
crown witnesses from that village very well. All the crown
witnesses
from that village, where the events which led to the commission of
the alleged offences took place, told this court that
they too know
this accused very well.

[5] ISSUE

There is
only one issue in this trial. The accused does not dispute that the
deceased is dead and died in the circumstances described
in the crown
case. He does not deny that the two victims of attempted murder and
assault crimes suffered what they complain of
in the hands of the
attacker. His defence is straightforward and simple. That is to say
he is not that attacker. He was not at
the scenes of those crimes.

[6] THE
WEATHER CONDITIONS AND THE VISSIBILITY ON

THAT
NIGHT.

The gun
attack on MAHLOMOLA at his residence commenced round about 10 p.m. at
night. The evidence of the witnesses shows this court
that there is
always a presumption that the night is dark. There was a bright moon
in the sky on that night. There were scattered
clouds which were not
too dark according to the evidence. At times the moon went behind a
cloud and emerge again.

7

Ten
o'clock at night in December in the Southern Hemisphere is not very
late nor too dark. This is a common knowledge factor which
can be
safely taken a judicial notice of.

[7]
IDENTITY OF THE ACCUSED Both direct and circumstantial

[A]
Direct - by eye witnesses

This
accused person although he works and lives in the REPUBLIC OF SOUTH
AFRICA he told this court that he pays regular visits to
that village
of HA MATIEA because it is his home and his parents still live in
that village. He admits that he was picked up on
the way to the
village by Pw2 - PHORI PHORI on the 24th December 2001 at about 5
p.m. - the day in question. He went there to see
his parents,
brothers and sisters bearing Christmas presents for them. The people
this accused met as he alighted from MR. PHORI'S
motor vehicle at his
shop according to the evidence of MR. PHORI were just thrilled to see
him. This is a clear indication that
he was most welcome. Everybody
was happy to see him. In other words, the accused is well liked by
his fellow villagers

Although
the accused's parents are still alive and well and therefore
maintaining his home at HA MOLIA village at LESOBENG when
the time
came for the cuckoo to fly away from the nest this accused
established his own home here at MASERU.

8

As he
pointed his gun at him - shooting him, MOLATO saw and recognized the
accused. It should be expected that each one took a good
look at his
target. He aimed properly and accurately in order to hit bull's eye.
Consequently MOLATO hit the accused who turned
his attention towards
him.

The
accused also took a good look at MOLATO - took aim to ensure that he
hit him. Evidence shows this court that both of these parties

successfully hit their targets. Therefore they both had a good
opportunity to see and recognize each other. MOLATO also told those

who were with him in that chase that abuti KALI o nthuntse letsohong"
translated "brother KALI has shot my hand".
This clearly
indicates without a doubt that MOLATO had recognized and identified
KALI then and there.

The
evidence of these two witnesses with regard to the identity of the
accused is supported by that of Pw4 - TSABO NYELIMANE [hereafter

referred to as Ntate TSABO]. The accused has known this witness for a
long time. So too this witness has known the accused for
a very long
time as he told this court. He said they grew up together although he
was a little older than the accused. This witness
was lying down as
the accused approached where he was. He got up and grabbed hold of
him. In the ensuing struggle to free himself
and get away the accused
struck this witness with a stick or iron rod on the head.

10

They were
fighting and looking at each other's moves and maneuvers at a very
close quarters in order to protect and defend themselves.
There is no
chance of mistaken identity at such close proximity of people who had
known each other for as long as these two - [TSABO
and KALI]. Even at
the time ntate TSABO cried out to his colleagues after KALI has
struck him on the head he called him by his
name -clearly indicating
that he recognized and identified him then and there. The identity of
the accused is properly established
by direct eye witnesses who had a
prior and thorough knowledge of the accused and an opportunity to see
and identify him in the
moon light within a close proximity. The
accused does not allege conspiracy by the fellow villagers to falsely
incriminate him.
Why? Perhaps he also does not doubt their honesty
and sincerity. The appearance of their sincerity and honesty is the
red flag.
The court must be very cautious when approaching the
evidence of identification of the accused, where witnesses are so
certain.
S V MTHETWA 1972 (3) SA 766 appropriate allowances must be
made regard being had of the fallibility of human nature.

Seeing
that the eye witnesses are not malicious, can they be making innocent
and genuine mistake and the court unwittingly caught
in the snares of
their honesty and sincerity S V MEHLAPE 1963 (2) SA 29 (A). I am
afraid the answer is in the negative.

11

There is
a substantial support that confirms the evidence of these
eye-witnesses in the form of a circumstantial evidence.

WEAPON
USED

2.
.Circumstantial identification of the accused. The firearm which was
used at the time MAHLOMOLA was under attack at his residence
is
licensed in the name of the accused. He denies having been that
attacker.

There is
evidence that the next morning three shells were picked up from
MAHLOMOLA'S fore court. Evidence of PW1 showed this court
that when
she heard the gun report, she saw the accused in the forecourt
standing near the entrance into her house. The members
of the
congregation according to the evidence of their leader Pw5 -also
heard the gun reports emanating from MAHLOMOLA'S home as
they came
towards his home to assist him. These three shells were picked up at
the very spot. This clearly indicates that the firearm
identified as
the one from which they were discharged was the one used to shoot at
MAHLOMOLA'S residence that night. Pw5's home
-where the church
congregation was gathered, is not too far from MAHLOMOLA'S home.

Those
shells were taken by the chief who handed them over to the police.
Those shells together with the accused's gun which he handed
over to
the police himself, were sent for ballistic tests.

12

There was
also a dead bullet which was retrieved from the upper lobe of the
deceased's right lung by the doctor who performed the
Post-mortem
examination on RETSELISITSOE LEHLOENYA -deceased in this case. The
ballistic report lists these three - [3 shells,
one dead bullet and
the gun] as the objects of the ballistic test in this case.

The gun
which was used in both the murder and attempted murder crimes is
found by the court to have been the one handed to the police
by this
accused according to him. It is his own gun. It is licenced to him.
There is no evidence that this gun was not in his possession
and
under his control on the date in question. Circumstantial evidence
though not direct, it is in some cases the most reliable.

If the
eye witnesses are mistaken could the ballistic evidence which shows
the gun of this accused to be the one used at the scenes
of the
crimes on the day in question, where was the accused? In his bed
asleep. There is no satisfactory evidence to that effect.
I cannot
accept the accused' s word in the face of overwhelming evidence to
the contrary.

13

It is
safe to presume that the registered or licenced owner of that weapon
is the person who was at the scene of the alleged crimes.
In the
absence of evidence showing that the gun was lost, the owner must be
the person who has the physical possession and control
of his or her
gun.

[8]
OBSERVATIONS ON THE DEMEANOUR OF WITNESSES

In almost
twenty-years of my practice as a presiding officer in criminal
trials, I seldom find the number of witnesses as large
as this one -
in a single trial - who give their evidence in this satisfactory
manner. They made no attempt to exaggerate or embellish
their
evidence in any manner whatsoever.

They gave
their evidence simply and in a straight-forward manner. They all
impressed me as honest witnesses. As I said I have never
met more
than one witness in a single trial who impressed me like these
witnesses did in this trial. I am surprised. No one tailored
his or
her evidence to coincide with the other witnesses' evidence. None of
them hesitated to give credit where it was due.

From
their appearances and demeanor they are ordinary BASOTHO men, women
and boys. They are not sophisticated or so little educated
that their
education became a danger to themselves and those around them by
claiming to know things they know nothing

14

about it.
They had no malice. Even the accused person did not think that any of
those witnesses was maliciously and falsely implicating
him.

E.g. Pw1
was choking from gun fire smoke. She needed some air. She escaped
from her house where this smoke was choking her. She
made no attempt
to tailor her evidence in such a way that she claimed to know the
cause of the smoke that was choking her. Similarly
PW5, although the
church night vigil was held at his home, he requested the
congregation to assist to rescue the victim of the
gun attack. He saw
in the maize field the flash lights as the gun was discharged.

He heard
his son say "abuti KALI -(this accused) shot me. He also said he
heard the other witness say " he is on my side.
Although Pw3
cried out "KALI struck me - KALI o mbatile" he did not
claim to have seen and identified the accused. He
readily conceded
that the attacker was in the maize field and that the maize crop was
tall enough to obscure his view. Pw3 was
in the company of the
deceased who must have been hit by the bullet at the time the accused
fired three times at them. Pw3 testified
that he hit the accused with
a stone. The accused turned his attention to him. He turned and faced
his assailant He took aim, fired
at him and hit him on that hand
which threw a stone at him.

15

It is
easy for Pw3 to claim that he saw accused aim and discharge his gun -
hitting the deceased. But he refused to claim that he
saw the accused
shoot at the deceased. These are honest truthful witnesses.

[9]
VERDICT

There is
sufficient and credible evidence that this accused was at the scene
of the crimes. There is also competent and satisfactory
evidence that
the accused must have shot and killed the deceased. The deceased's
death was due to gun shot wound - causing bilateral
haemothorax and
haemopericardium. The bullet which caused this wound was found by the
ballistic expert to have been fired from
this accused person's gun.

I am
satisfied with the evidence before court that the accused shot and
caused the injury on the complainant - MOLATO LINKOANE'S
wrist. He
fired and/ or shot at him with the intention to kill him therefore
committing the crime of attempted murder. The accused
is also found
guilty of assault by hitting the complainant - ntate TSABO with an
iron rod or a stick on the head - causing him
an open wound.

16

[10]
EXTINUATION

When the
investigating officer, Pw6 - DETECTIVE SGT. RAMOCHELA was
cross-examined by counsel for the accused he was asked what
explanation did the accused person give him, that as the result he
arrested him. It emerged from the investigating officer's reply
that
this accused was aggrieved by the suspected thefts of MAHLOMOLA whom
he had gone to attack that night. The accused suspected
that
MAHLOMOLA had been stealing his father's animals. According to the
evidence before this court, MAHLOMOLA was the first person
who was
attacked by the gunman. The deceased and the members of congregation
came to his rescue after Pw1 - MAHLOMOLA'S wife had
raised the alarm.
The accused had come there specifically to attack MAHLOMOLA. Although
the defence subsequently tried to claim
that the accused admitted
under duress - going to that village to kill MAHLOMOLA, it is the
only plausible explanation as to why
this accused committed the
offences he has been convicted of.

There
must be a reason why the accused attacked MAHLOMOLA. The killing of
the deceased happened because the deceased went to assist
MAHLOMOLA.
So did the others. In his address on extenuating circumstances the
counsel for the accused asked this court to regard
those reasons
allegedly given to the police by this accused, at the time of his
arrest, [i.e. to say he had gone there to sort
out MAHLOMOLA for
allegedly stealing his father's animals] as part and parcel of the
extenuating circumstances.

17

If the
accused was convinced that MAHLOMOLA had stolen his father's animals,
the proper course of action to follow was to report
him to the chief
or police. Taking the law into his own hands and administering
punishment was wrong. That is why he now finds
himself in this
embarrassing position. In the eyes of the law he has committed a
wrong. But because of his reason for committing
this offences, that
becomes a factor which to a less degree reduces his blameworthiness.
NT JANYANA PHAKOE 1963 - 1966 H.C.L.R.
page 140. The accused had been
found guilty of murder with direct intent to kill. He is therefore
liable to pay the ultimate price.
His crime is extenuated by the fact
that he was angry against MAHLOMOLA. He was trying to punish
MAHLOMOLA at the time he committed
the crime of murder against the
innocent person - RETSELISITSOE. The grievances he had against the
person he intended to kill reduces
the blameworthiness of the offence
he has been found guilty of.

The fact
that during the trial it was suggested by the defence that it was the
police who forced the accused to admit that he went
back to his
village to kill MAHLOMOLA because of the alleged theft of his
father's animals by the said MAHLOMOLA, is now at this
stage
considered in his favour as extenuating circumstances. It is so
because the accused is entitled if he elects, to resile from
the
previously taken position REX V MALOPI 1954 (1) SA 390 at 397 -398.

18

11.
SENTENCE

The
accused has been convicted of a very serious offence. He killed an
innocent person against whom he had no grudge. The accused
found
himself in this position because he decided freely to take the law
into his own hands by going to that village to punish
MAHLOMOLA for
the suspected wrong doing. Because you are denying that you are the
gun man who attacked MAHLOMOLA that night and
as a result you killed
this person you did not even know as he was the visitor in that
village you have not even expressed remorse
for this action. It was
Christmas eve. People were celebrating Christmas when you brought
upon that village the tragedy of the
death of the deceased.

In your
favour I have taken into account all those circumstances personal to
you as indicated by your counsel. You are married and
you have two
minor children. This is sad. You have decided to take the chance of
disappearing from them for a long time by going
to LESOBENG to kill
someone.

Your wife
is unemployed. This fact did not spring up immediately upon your
conviction of these crimes. You have all along known
that you are the
only breadwinner in your family. You considered the difficulties
likely to arise as a result of your action. But
nevertheless decided
to go ahead.

19

The
commission of the crime such as this one that you are convicted of,
rests the total responsibility on the perpetrator.

Your
parents were happy to see you and to receive from you the Christmas
presents you bought them. Did you show them your gun and
inform them
what Christmas present you wish for some fellow villager? What did
they say? Perhaps you never intimated to them the
purpose of your
visit to the village. Now they will miss you and your support. The
inconvenience to your family will only be temporary.
After serving
your sentence you will be back with them. The deceased person's
family will never see him again. You have removed
him from his family
permanently.

You are
sentenced to :-

For
Count 1 - 30 Years Imprisonment.

Count 2 - 2 Years Imprisonment.

Count 3 - 6 Months Imprisonment.

ALL
SENTENCES TO RUN CONCURRENTLY.

DISPOSAL
ORDER

The
murder weapon - your gun - EXHIBIT 1 is forfeited to the crown.

20

This
judgment must be drawn to the attention of the gun licencing
authority. My recommendation to the gun licencing authority is
that
this accused is not a fit and proper person to possess or have under
his control the gun or any lethal weapon.

KJ. GUNI

JUDGE

ASSESSORS
: Mr. Makhera

Mr. Mathiba

FOR CROWN
: Ms. Ngcobo

FOR
DEFENCE : Mr. Shale

21