C. Of A.
(CRI) 3 of 1986

IN THE
LESOTHO COURT OF ' APPEAL

In the
matter between:

LEFU
MALATA First Appellant

LETOALA
MALATA Second Appellant

Versus

THE KING
Respondent

Held at
Maseru

Coram:-
Schutz P.

Mahomed J.A.

Aaron J.A.

JUDGMENT

Schutz
P.

The
appellants, two brothers, appeal against their convictions of murder
with extenuating circumstances, and their sentences of
15 years
imprisonment.

The
deceased, Thabiso Mokoma, died on 9th July, 1984. The cause of his
death was severe loss of blood through the numerous wounds
inflicted
upon him. Some of these were inflicted with a sharp instrument,
others with a blunt one. At least fifteen wounds were
recorded at the
post mortem. The stab and cut wounds ranged from the head to the
ankles. Detective Trooper Ntlaloe who saw the
body where it was found
said that the muscles at the back of both knees and the tendons of
both feet were cut. Judging by the injuries
the attack which caused
them was brutal and sustained.

The Crown
case rests principally upon two eye witnesses, Lebohang Polane and
Malefetsane Matsietsa, both of whom were believed by
the trial court.

2

Polane
was herding cattle together with the deceased. At about 1 o'clock
No.1 appellant came up to the deceased. Polane was some
15 to 20
paces distant at the time, and could not hear the conversation that
then ensued between the apair, although he could say
that they were
not shouting. After a time No.2 appellant arrived accompanied by a
pack of dogs. He immediately struck two blows
at the deceased with a
stick, but the deceased, who was bearing a cane and a "lesiba"
stick, managed to ward off the
blows. Appellant No.1 then also struck
or struck at the deceased, who ran away into a mealie field in which
the stalks were still
standing. Both appellants chased after him,
and, as he was outdistancing them, they set the dogs on him. The dogs
felled him in
the field and both appellants then beat him. At this
stage the deceased was some 30 to 40 paces distant, and mealie stalks
made
it impossible to see all that was happening. As to his statement
that both appellants beat the deceased after he had been brought

down, the following was said: "Counsel asked you that you could
not say that, because you said at the P.E. that the stalks
were tall,
so you could not have seen where he fell down? I saw sticks being
raised. But actually you did not see A.2 delivering
any blow on the
deceased? Yes". It was put to the witness that No.2 appellant's
stick was being used to drive off the dogs.
In a somewhat
inconclusive passage the witness agreed with this, but also in answer
to the question, "And in doing so (distracting
the dogs), he was
using his stick?" said "Yes it was when he had already
fallen down, and they were beating him up."
The net effect of
his evidence in this regard is, therefore that although appellant
No.2 may have driven off the dogs, he also
participated in the
further attack on the deceased. The witness further stated that both
appellants then left, only to return after
a time. Upon their return
they laid the deceased's body upon mealie stalks. In
cross-examination it was put that this return to
the site would be
denied.

Matsietsa's
account is similar to that of Polane, but by no means identical. He
was further away from the deceased than Polane,
some 80 to 90 yards
distant. According to him,

3

before
appellant No.1 went up to the deceased he first approached the
witness and asked if the deceased had dogs. He also could
not hear
what passed between the deceased and No.1, but described the
discussion as appearing to be conducted in normal tones.
According to
him also, when No. 2 reached the deceased he hit him with a stick and
set dogs upon him: and No.1 then joined in and
delivered blows. He
saw the deceased fall down and the appellants beat him, but could not
say where they were beating him. He did
not see the appellants return
to the scene where the deceased had been left prostrate. Like Polana,
he did not report the attack
due to fear.

The first
appellant did not dispute that he used a stick and a knife on the
deceased. According to him his object was not to kill
but to maim. On
his behalf it was argued that the conviction should be reduced to one
of culpable homicide on the ground that a
subjective intention to
kill had not been proved beyond reasonable doubt. According to him he
met the deceased by chance. The conversation
related to the
deceased's having allegedly threatened No.2 appellant with a gun on a
prior Occasion, and to the mixing of No.2's
cattle with those of the
deceased on another occasion. He conceded that on No.2's arrival the
latter struck at the deceased with
a stick, and that the deceased ran
away: but denied that he, No.1, struck a blow at that stage or that
No.2 set his dogs upon the
deceased. The dogs were said to have
chased the deceased when he ran away, and No.2 was cast in the role
of trying to prevent the
dogs attacking the deceased. Indeed
according to both appellants, No.2, who had initiated the attack,
from this stage on took no
further part in it and had his energies
fully absorbed in restraining the dogs.

Appellant
No.1 claimed that in the mealie field the deceased produced a pistol,
upon which No.1 hit him with a stick. The story
about the pistol was
rejected by the trial court, and in my view correctly so. This
important fact was not put in cross-examination
and bears the marks
of an afterthought. Moreover I find this story of a man armed with a
pistol having injuries of the kind described
inflicted upon him
without his firing a shot somewhat bizarre. Needless to say, no
pistol was found at the scene.

As
already stated, appellant No.1 claimed that his object was to maim
rather than to kill. There is some support for this in the
form of
the unusual injuries to the back of the legs already described. On
the other hand the injuries show a deliberation that

4

discounts
the submission that No.1 acted in a mindless frenzy. But even if such
a view as to No.1's purpose should exclude a finding
of dolus
directus, as I think it should, it does not exclude finding of dolus
eventualis. The wounds were numerous and some were
deep. It did not
require a medical doctor to realize that unhelped, and unable to help
himself, the deceased must have been in
danger of bleeding to death.
Having brought him to this state the appellant simply left him to his
fate. Extensive bleeding must
have been apparent. In these
circumstances I am satisfied that the Crown has proved dolus
eventualis against No.1 in the sense
that he subjectively foresaw the
possibility of death and acted with a reckless disregard for whether
it sould ensue or not. Accordingly,
he was correctly convicted of
murder.

For the
second appellant it was contended that he should not have been
convicted of murder but only of some or other species of
assault. The
basis for this contention was the suggestion that a distinction
should be drawn between the roles of the second appellant
in the two
phases of the attack. At the beginning, it was said , he initiated
the attack. Thereafter, it was said, he was merely
the dog-tender,
trying to keep them off the deceased. I consider that the trial court
was correct in rejecting this version and
am of the view that there
was only one transaction, albeit an extended one. No.2 initiated the
attack. He left the deceased together
with No.1 without any attempt
to assist him when he must have appeared to be in great distress. Why
there should have been a change
of heart in between is not apparent.
According to him he saw No.1 hitting the deceased with a stick in the
mealie field and called
on him to stop. And this was the man who had
initiated the attack with a heavy stick! He was most evasive as to
what he saw, or
rather did not see, when No.1 was butchering the
deceased. According to him the dogs so fully absorbed his attention
that he did
not know what No.1 was doing. I find this incredible.
Moreover, he contradicted himself as to whether a stick broken in two
which
was found on the scene was his. The impression of the two eye
witnesses was both persons beat the deceased with sticks while in
the
mealie field. The sight described must vary considerably from the one

5

described
by the appellants, the one assailing the deceased, the other warding
off the members of a pack of dogs. Although the eye
witnesses were
far from perfect I accept their version and reject that of the
appellants as wholely implausible. For this reason
I think that No.2
must also be convicted on the basis of dolus eventualis in the same
way as No.1, for his own participation throughout
the attack. He too
was rightly convicted of murder.

I turn
now to the question of sentence. This Court was grievously hampered
in dealing with this question as there was no record
of the facts
found as constituting extenuation. Nor was anyone able to tell as to
what these facts were. It is to be emphasized
that there are two
stages to a murder trial: the first leading to the conviction or
acquittal on the murder charge, and the second
leading to the finding
on extenuation. In some cases no further evidence may be led at the
second stage as the evidence led at
the first stage may be
sufficient. In others further evidence may be led. Whichever happens
there should be a proper record of
the second stage, whether of new
evidence, or agreed facts, or both: and there should be a clear
finding by the Court. All this
lacking, we must do the best we can.

The
evidence led in the first stage shows that there was a long-standing
and bitter feud between the respective families of. the
deceased and
the appellants, and that the appellants had some basis for feeling
that their complaints were not properly heeded
by the authorities. In
this case I think that this is a basis for a finding of extenuation
when taken together with other factors.
Secondly, the conviction is
arrived at on the basis of dolus eventualis, which may constitute
extenuation when taken together with
other factors. The finding of
dolus eventualis, means that I have concluded that premeditation has
not been proved beyond reasonable
doubt. We do not know what the
trial court found in this regard at the second stage, but there is a
passage in the record of the
first stage that indicates that that
Court did find premeditation. There is much reason to suspect that
there was premeditation
such as No.1's immediate joining in upon
No.2's attack, but I do not think that premeditation has been proved
so as to lead to
that moral certainty needed in a criminal

6

case.
Accordingly I consider that the Court a quo erred with regard to the
ground of extenuation. This Court is thus at large on
sentence.

The
murder was a brutal one and such as calls for a severe sentence.
Nonetheless I think that in the light of the findings that
I have
made on extenuation, a sentence of 12 years in each case is
appropriate. I do not find merit in the submission that there
should
be a differentiation between the sentences of the two appellants.

Accordingly
the convictions of murder with extenuating circumstances are
confirmed, but the sentences of 15 years are set aside
and replaced
by sentences of 12 years impresonment in each case.

Signed W.P.SCHUTZ........

W.P. SCHUTZ

President

I agree
I.Mahomed.....

I. MAHOMED

Judge of Appeal

I agree
... S.Aaron..........

S. AARON

Judge of Appeal

Delivered
at Maseru this 13th day of October, 1987.

For the
Appellants: Mr. C. Edeling

For the
Respondent: Mr. G.S. Mdhluli

C of A
(CRI) 3 of 1986

13th
October, 1987

9.35

Appellants
: N/A

For
Respondent : Mr. Thetsane

Mr.
Thetsane : Will investigate whereabouts of

appellants

Court adjourned

B.P. Cullinan

Chief Justice

12.35

Al )

A2 ) before Court

)

Mr. N.V.
Qhomane for crown

A2 : I
was at work in fields this morning. On 17^th November 1986.
I was granted bail. I was convicted on 16th January, 1986. I was made
to sign documents in jail. Mr. Khauoe was
my Counsel - he made
application in the High Court.

A1 : I
didnt apply for bail. I was in jail this morning Judgment delivered.

Appeal
against conviction dismissed. Appeal against sentence allowed.
Sentence of 12 years imprisonment substituted in respect of
each
appellant.

Ct. to A2 : How long were you in prison before

you were released?

A2 : Convicted on 16th January, 1986 -released on 17 November, 1986.

B. P.
Cullinan

CHIEF
JUSTICE