CRI/T/46/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

V

KATISO
SEKO SIMON MAKHEMA

JUDGEMENT

Delivered
by the Honourable Acting Judge Mrs. Mahase On the 12th August 2005

The
accused appeared before this court on the 11th August 2005, charged
with the crime of murder.

The said
incident is alleged to have occurred upon or about the 27th April
2003 and at or near Senqu river area in the Leribe district.

They are
alleged to have unlawfully and intentionally killed one Manuel
Gologolo.

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Facts
which let to this unfortunate incident are as follows:-

On the
day in question, the deceased, Manuel Gologolo had been at work. He
was operating the boat which travels between Phamong
and Ha Robi in
the district of Quthing.

A while
after he had knocked off, he and certain people remained in the place
near the boat for sometime. As he was there, certain
two ladies who
were in the company of three children arrived thereat. They asked the
deceased to transport them to the other side
of the river by boat.
The deceased agreed to help them.

Before
they left that place one Nyepetsi and the accused herein arrive
thereat. They also joined the people who were already in
the boat.

The
deceased, Manuel then asked the said passengers to pay him as it was
already after working hours. The three ladies immediately
paid to the
deceased 55 cents (fifty five cents), as they said they had no other
money.

Deceased
asked the accused, Simon and Katiso to also pay him for ferrying them
across that river in that boat after hours.

2

Katiso
replied immediately refusing to pay any money to the deceased. The
deceased repeated his demand to Katiso (Al) and Simon
(A2). Al
replied refusing to pay any money to the deceased. Having received
this reply from Al, the deceased then ordered the accused
to go out
of the boat. They refused to do so.

The
deceased then took the boat-paddle. He tried to hit Al with it, but
for some unexplained reason, that hit A2 instead. A fight
then
immediately began between Al and the deceased. As they fought they
held each other. The deceased immediately fell into the
river from
that boat.

Having
fallen into the river, the deceased tried to swim out of that river
and he asked people who were there at the time to stop
Al and A2 who
pursued him from going towards him. He then disappeared into the
river and A2 then threw a stone at the place where
the deceased was
seen to be when he last surfaced above the water. Shortly afterwards,
he re-surfaced but he immediately sank for
good in that river.

None of
the crown witnesses have seen how the deceased fell into that river,
nor did any of them see whether or not the stone which
was thrown by
A2 towards where the deceased was last seen in that river, did
actually hit him. The deceased met his death on that
fateful day in
such circumstances.

3

He was
taken out of that river a dead-man by the police diver who had been
send thereat after the people of that area had failed
to locate his
body in the Senqu river.

A
Post-Mortem report revealed that the deceased died of "drowning
at Senqu river. Congestion of the lungs".

Remarks
on this report show that the deceased had "bruises on the
frontal region of the scalp. Mud on the chest".

However
all the crown witnesses, including the police who took deceased out
of that river say in their statement that the deceased
had not
sustained any injuries.

The
defence counsel, M. Matooane has admitted all the statements of the
crown witnesses taken down in writing by the police in relation
to
this incident; but subject to normal hearsay rules. These were all
read into the court record and were admitted as part of the
evidence
herein. They were marked exhibits A, B,C,D,E,F,G,H,I and J (including
the post mortem report).

As has
already been indicated above, the deceased was the original
aggressor. He fought Al when (Al) refused to pay him (deceased)
money
unlawfully for the enrichment of the

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deceased.
The the deceased had demanded to be so paid because he was
transporting those people after hours. The said boat was ferring
the
public thereat free of charge and deceased was a public servant who
was paid his salary from government offers.

It is a
matter of common cause that none of the crown witnesses saw how the
deceased fell into the river. It is the story of the
crown that the
deceased fell into that river as a result of him being pushed into it
by the accused.

The crown
argued that its story in this regard was squarely supported by the
evidence of one 'Maamen Besele, - Exhibit "B"
herein.

I have
read this statement and others, over and over again but there is
nowhere where any of the makers of the said statements including

"Maamen Besele say that any of the accused pushed the deceased
out of the boat into the river. With respect to the crown counsel,

this argument is unsupported by evidence adduced before this court.

In all
these statements, the witnesses are corroborating each other on the
point that, the deceased was the one who assaulted A2
first and that
later Al and the deceased fought.

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That they
were holding onto each other when Manuel (deceased) fell into the
river.

The maker
of statement, exhibit "C" - one Thonatho Molupi says that
the deceased fell into the river after the rowing
paddle he was
holding had fallen into the river. He does not say that the deceased
was pushed into that river from the boat by
anybody; nor that the
paddle was taken away from him by any of the accused thereby
resulting in his falling into the river.

Having
outlined the evidence adduced herein, what remains is to determine
who has actually caused the death of the deceased herein?

I have
already alluded to the fact that all crown witnesses corroborated
each other's evidence that the deceased fell into the river
but none
of them has said that the deceased fell in there as a result of
somebody else's direct actions.

Defence
Counsel for the accused has admitted all the statement s of the crown
witnesses, and the crown did not object to that. The
crown has
therefore not had an opportunity to cross examine any of the
witnesses. As a result some questions remain unclear. For
instance,
it is not clear whether or not the paddle which the deceased was
holding as

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they
fought was snatched by any of the accused thereby causing the
deceased to loose balance and fatally fall into the river in

question.

Actually
this paddle fell into the river before this fight between the
deceased, and Al started. Exhibit "C" reads in
part as
follows:

“........I only saw Manuel falling into the water......"

It is not
his story that the deceased was pushed into that river by any of the
accused.

Further,
can it be said that the stones which were allegedly thrown into the
river at the last place were A2 saw the deceased disappear
into that
river, have hit the deceased, causing him injuries which resulted
into his death? This should be answered in the negative.
It is not
alleged that the deceased died of the injury he sustained when he was
hit with a stone after he had fallen into the river.

I am
fortified in my answer in the negative by the fact that the
Post-Morten report reveals that the death of the deceased herein
was
due to drowning at Senqu River and congestion of the lungs. This has
no relation at all to being hit with a stone.

7

The
bruises referred to under item 8 of the Post-Mortem report cannot be
attributed to the actions of the accused in the absence
of any
evidence to the effect that, the deceased sustained same after being
hit with a stone by any of the accused persons.

The
possibility that these bruises were a result of his fall into the
river where he could have bumped against rocks cannot be overruled.

Indeed S/Insp. Lemphane says "on arrival divers were shown a
rock from where Manuel fell.

In fact
both witnesses who identified the corpse of the deceased before a
Post-Mortem was conducted, say that it had no injuries
at all. It is
corroborated in this regard by S/Insp. Lemphane (exhibit H), the
other identifying witness, Themba Jankie in exhibit
F, that of
identifying witness, David Gologolo (exhibit G).

The only
witness whose statement indicates that the deceased had a wound on
the head is of No.9271 Trp. Mabote.

This too
does not advance the crown's case any further because it is not clear
whether or not that wound was a result of the deceased
having fallen
on some rocks in that river, or whether or not it was inflicted by
the stones which A2 threw at the deceased who
was already in the
river. This court realizes

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that
there is conflict in the evidence of the crown in this regard.

Defence
Counsel for the accused, Mr. Matooane submitted that the accused were
not the proximate cause of the death of the deceased
herein. He
argued that the death of the deceased was caused by drowning and by
nothing else.

It is his
further argument that there is no evidence showing that the deceased
was actually struck by stones thrown at him by any
of the accused
persons herein.

He
submitted that basically there is no unlawful conduct which can be
attributed to the accused as having resulted into the death
of the
deceased.

It is Mr.
Matooane's argument that the scuffle between the accused and the
deceased had nothing to do with the cause of the deceased's
death,
moreso because there is no evidence showing that the deceased was
actually pushed or thrown into the river by the accused.

The issue
as to how the deceased fell into that river has not been clarified by
the crown which has elected not to call viva

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voce
evidence of its witnesses up to this point, it is still not clear how
the deceased fell into the river.

The crown
did, at the end of the day apply that the accused should be convicted
of the crime of culpable homicide. Its contention
being that on the
evidence adduced, a charge of culpable homicide has been made.

Mr.
Mokorosi for the crown argued that the accused did unlawfully and
negligently kill deceased, Manuel Gologolo.

It has
already been shown that the crown's version has not been supported by
its own witnesses's evidence that any of the accused
did push/throw
or cause the deceased to fall in that river.

In the
absence of clarity as to how the deceased fell into that river, this
court is unable to say he was pushed/thrown in there
by any of the
accused persons.

Also
there is no evidence actually showing that the stone which was thrown
at the deceased by A2 after deceased had fallen and sank
in that
river did cause the bruises referred to on the Post-Moterm report.

10

This and
the statement of S/Insp. Lemphane (exhibit H) that ".....on
arrival the divers were shown a rock where Manuel fell
.. .."support
the argument of the defence that the said bruises seen on the frontal
region of the deceased's scalp could have
been caused by something
else in that river and not by the stone which accused threw at the
place where he last saw the deceased
in the river.

For the
foregoing reasons, this court has come to the conclusion that the
crown has failed to proof beyond a reasonable doubt that
the deceased
died as a result of actions of the accused herein.

With
respect, the evidence herein tendered by the crown cannot even
support a verdict on a lessor charge of any kind.

The
accused are therefore accordingly found not guilty and are
discharged.

My
assessors agree.

M. MAHASE
(MRS)

ACTING
JUDGE

For Crown
: Mr. Mokorosi

For
Defence : Mr. Matooane

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