IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-                                                  CRI/T/14/2007

 

 

REX                                                                               CROWN

 

 

VS

 

 

SEBATA MAKITLE                                                        1^ST ACCUSED

RETS’ELISITSOE RAMOKOENA                                  2^ND ACCUSED     

 

 

JUDGMENT

 

Delivered by the Honourable Madam Justice M. Mahase

On the 4^th May, 2011

 

Criminal Procedure and Evidence – Trial – Charge of Murder – Circumstantial evidence – What is – Inference to be drawn – burden of prove.

 

The accused appeared before this Court being charged with having committed the crime of murder.  The particulars of the charge are clearly spelt out on the charge sheet dated the 29^th August, 2006.

 

The alleged offence is said to have occurred upon or about the 15^th October 2003 and at or near Ha ‘Makepile in the district of Quthing.

 

Initially, there were three accused persons.  It then transpired on the day the case was prosecuted that one Sekonyela Delisa, who was listed as accused number one has since died.  This case was ultimately prosecuted only as regards accused number 1 and 2 i.e. Sebata Makitle and Rets’elisitsoe Ramokoena.  The name of the deceased in this trial is one Makhaola Posholi/Makhaola.

 

One must mention at this juncture that according to evidence accused before this Court, the deceased and Sekonyela Delisa (now dead) were co-herdboys of one ‘Malebese Ramokoena.  The said ‘Malebese is the mother of Rets’elisitsoe Ramokoena, now accused no.2 in this trial.

 

Briefly the facts of this case, and which facts are common cause, are that on or about the 15^th day of October 2003 it was realized that one of the sheep belonging to ‘Malebese had gone missing.  That it was ‘Malebese who alerted his son; A2 about the missing sheep.

 

Following a report about that missing sheep, A2 who was then at the bus stop area at upper Moyeni in Quthing went home.  On arrival at his parental home a report about that missing sheep was repeated to him in the presence of the deceased in this case.

 

A2 then inquired from the deceased about that missing sheep.  That the deceased replied that the said sheep had been stolen by Sekonyela Delisa.  This, the deceased said in the absence of Sekonyela.  Sekonyela, so the evidence revealed, had at that time gone out to the veld to look for the best place at which he would take the sheep out for grazing later in the day.

When Sekonyela later arrived at his employer’s home, he too was given a report about the missing sheep.  He was also informed in the presence of the deceased that, actually, the deceased has already reported to their employer, ‘Malebese that it was him (Sekonyela) who had stolen that sheep.

 

The said Sekonyela, who is described as having been fluent in both Sesotho and Sephuthi languages is reported to have been angered by that report that it was him who had stolen that sheep.

 

Evidence adduced before this Court is to the effect that Sekonyela was so infuriated by that report that he there and then attacked the deceased by striking him (deceased) on the head with a stick.  A2 (Rets’elisitsoe) immediately intervened and stopped any further assault by Sekonyela upon or against the deceased. The deceased sustained a head injury following that assault upon him by Sekonyela Delisa.

 

Further evidence is to the effect that it was after that or at that stage that the deceased then admitted to having stolen the missing sheep.  He also then, went ahead and informed his employer and others thereat, that he had actually hidden the carcass of that sheep at a place called ‘Makepile.

 

It is further evidence that Sekonyela was so angry at the deceased that he expressed his anger in the Sephuthi language, a language which neither of the accused nor ‘Malebese understood.

 

It was after that encounter between the deceased and Sekonyela that; and at the suggestion of A2 (Retselisitsoe) a person considered to be neutral was asked to accompany the deceased, Retselisitsoe and Sekonyela, to ‘Makepile so that the deceased could go and take out the carcass of the said sheep from where he had reported to hidden it.

 

This is when A1 (Sebata) was called by A2’s mother to go with A2, the accused and Sekonyela to the place in question.  When this group left for ‘Makepile; A2 was driving the vehicle while A1, the deceased and Sekonyela set at the back of that bakkie.

 

When they eventually arrived at the place in question, and due to the impassable terrain A2 had to leave his vehicle a few kilometers away from the actual place where the deceased took them for him to take out the carcass of that missing sheep.

 

Evidence adduced before this Court is to the effect that, the deceased took this group of people to the top of the mountain at ‘Makepile and took out the carcass of the said sheep from among the bushes thereat. That again at this stage, a very angry Sekonyela tied that carcass of that sheep on the deceased’s shoulders, securing it thereat using a string or a piece of whip which whip he usually used for herding sheep.

 

Once more, the said Sekonyela assaulted the deceased with a stick but A2 intervened and stopped Sekonyela from assaulting the deceased any further.  Having found that carcass, they then went down that mountain with the deceased walking ahead or in front of them with that carcass tied at his back.

 

It is further evidence that as they went down the mountain, the deceased, suddenly, and without warning ran down the slope and threw himself over a cliff thereby seriously sustaining some injuries.

 

Ultimately, the accused, who had to take another route to get to where the deceased had fallen down below found that actually, the deceased could no longer walk easily.  That it was Sekonyela who out ran the rest of those in his company and when he arrived where the deceased had fallen, he continued to belabour the deceased with a stick.

 

Once more, A2 intervened and stopped Sekonyela from assaulting the clearly seriously injured deceased person.  Once back at the place where A2’s vehicle was parked, they assisted the deceased to board the car which was driven by A2.

 

He was then taken back to the chief’s place with the carcass still tied to his body.  The deceased was lying down prostrate.  Along the way, PW3 boarded that vehicle and was able to see the deceased.  He however never inquired what was the problem with the deceased.

 

Eventually, at the chief’s place the visibly angry chief, to whom a report about the missing sheep had already been made, ordered PW3 to unfasten the deceased who was than still alive.  PW3 obliged.

 

According to PW3, he did not witness any assault by any of the accused upon the deceased.  This witness did also not know who had tied the sheep to the deceased’s body. He however, realized that the deceased’s hands had also been tied to the back and to the dead sheep.

 

Whilst still at the chief’s place and after having unfastened the deceased, this witness PW3 was send away into the village by the chief to go and summon one Leabua to the Chief’s place.  When he ultimately went back to the chief’s place, he realized that the vehicle in which the deceased was earlier in, as well as the deceased and that carcass were no longer there.  He later learned that actually the deceased died on that day at the chief’s place in A2’s vehicle and that on the orders of the chief of that area, the accused had been ordered to take the deceased and that carcass to the police and have the incident reported to police.  That was the last this witness heard of this incident.

 

I pause, to observe that in fact, the four crown witnesses’ evidence corroborate each other in most material respects as to the alleged incident, subject-matter herein.  I note however that the chief or headman of that area has not been called to testify in this trial.

 

The evidence of the policemen who attended the scene of crime and who also went to the chief’s place after the incident in question was reported to them is very brief.  They are in fact the ones who investigated this case.  They are policeman Trp Nthakong (No. 11430) who was accompanied by Sgt Malusi Tona (whose force number has not been given).

 

No. 11430 testified that he attended the scene of crime.  That on arrival thereat he noticed a trail of blood from the hill, going downslop.  He followed that trail which ended up at a certain place.  That at the end of that trail, he found a cloth and pieces of a lebetlela stick. That he took the said items as exhibits; which exhibits had however gone missing from the exhibit room wherein he had kept same.  He could therefore not produce same as exhibits before court.

 

He also was shown a cliff from where it was reported that, that was the cliff where the deceased fell from.  This officer and one other No 10518 Sgt. Ts’otesi were there when the medical doctor performed a postmortem upon the deceased’s body.  In fact Trp Nthakong identified this body to the medical doctor before a postmortem was done upon it.  From their evidence, the deceased’s relatives or family members were not known nor did anybody know their whereabouts.  The deceased was ultimately buried by the office of the District Administrator.

 

These officers, corroborated each other’s evidence that on examination of the deceased’s dead body, they observed the following injuries on it:

-      An open wound on the head;

-      Abrasions the body and arms.

 

Sgt. Ts’otetsi in fact had A2, Rets’elisitsoe Ramokoena arrested on the 30^th October 2003 and a charge of murder was preferred against both accused in this case.  The postmortem report, exhibit “A” herein, shows that death was due to laceration on the occipital aspect of the skull, and vertical aspect, with subdural heamatoma – vide item number 7 of the said exhibit A, see also items numbers 8 and 9 therein for further medical doctor’s remarks in this regard.

 

It will readily be realized that the evidence as to how, why and when the deceased met his death are matters of common cause.

 

I now turn to deal with the defence evidence.  Both accused testified in their defence and in brief, they both shift the blame to Sekonyela Delisa, who was accused1 herein but who has since died.  They do not deny that in fact after the deceased had pointed out and taken out the carcass of that sheep from among the bushes on that mountain top, he was forced to carry it on his body with Sekonyela Delisa (also now dead) having tied same and deceased’s hands o that carcass; as has already been described above.

 

They both deny ever having assaulted the deceased from when he was taken away from his employer’s home to Ha ‘Makepile where the carcass of this sheep was found.  They both also testified that the deceased was injured firstly when he was hit on the head with a stick by Sekonyela Delisa before he was taken to ‘Makepile and subsequent to the discovery of that carcass at the said mountain top at ‘Makepile

 

In fact, A2, Retselisitsoe Ramokoena has repeatedly testified that he in fact intervened all the time when Sekonyela assaulted the deceased to and from ‘Makepile.

 

As for A1 (Sebata Makitle) nothing has been said about his role in all of this incident except that he had been asked by A2’s mother to accompany A2 and the deceased to Ha ‘Mapekile.

 

There is some evidence, which has also not been challenged by the crown that in fact, the deceased, A1 and later PW3 had boarded the vehicle that was driven by A2 to and from Ha ‘Makepile together at the back and that only Sekonyela continued to assault the deceased even then.

 

The picture that has been presented before this Court through evidence adduced by both the crown and the defence is that the deceased died as a result of the injuries which had been inflicted upon him by the said Sekonyela Delisa.  A1 and A2 are portrayed as having been passive on lookers with A2 being only concerned with driving the vehicle which deceased had boarded together with A1 to and from ‘Makepile.

 

It has been submitted on behalf of the crown that the issues for determination by this Court are:

 

-      Whether accused were acting in common purpose;

-      Whether the deceased died as a result of the assault;

-      Whether the crown has proved its case beyond a reasonable doubt

 

Before dealing with the above issues, I wish to indicate that among issues, the crown has, for reasons best known to it decided not to call the mother of accused number 2 who was the deceased’s employer and before whom the deceased  was first assaulted or hit with a stick on the head.

 

As such, there is no direct evidence of anybody tendered to show that indeed, it was only the said Sekonyela (the deceased’s co-herdboy)  who had at all times been  the one who assaulted the deceased while A1 and A2 remained passive except at instances where A2 said he intervened to stop Sekonyela from assaulting the deceased.  In fact it is not clear from the evidence before Court whether or not A2 was still able to see or witness and stop a further assault by Sekonyela upon the deceased at time when A2 was driving the vehicle.  A2’s evidence that he never assaulted the deceased has not been challenged by the crown.

 

I also note, that there is no evidence adduced by the crown to the effect that the pieces of the lebetlela stick as well as the cloth found at the scene of the crime belonged to any of the accused persons nor to Sekonyela himself.  There is no iota of evidence adduced on behalf of the crown to explain and or connect the two items to any of the accused; nor has there been any evidence adduced explaining the presence or even the significance of the piece of cloth found thereat.

 

There is no evidence before this Court that there was a time when the deceased was tied with a piece of cloth. It is also observed by this Court that nothing has been said about the string with which Sekonyela had allegedly tied the carcass onto the deceased’s body.  None of the police officers who investigated this case has made any mention of that string before Court at any stage of their testimony.

 

There is however, before this Court uncontroverted evidence to the effect that neither A1 nor A2 were carrying any kind of weapons on that day in question to and from Ha ‘Makepile.  Indeed none of the other crown witnesses PW3 and PW4 testified, nor were they asked to say whether or not when they saw the accused at the chief’s place just before the deceased died, any of the accused had a weapon of any kind in their hands.

 

I note also, that neither PW3 nor PW4 made mention of the said Sekonyela any where in their evidence before this Court.  This is despite the fact that throughout their testimony, the accused numbers 1 and 2 have been blaming Sekonyela as the person who had at all times been actually having assaulted the deceased even before they left for Makepile.  As I see it, the crown seems to have forgotten to challenge the evidence that it was only Sekonyela who assaulted the deceased.

 

Be that as it may, it has been submitted on behalf of the crown that in fact the accused acted in common purpose in killing the deceased as is alleged in this case.  It is a matter of common cause that in the instance case, the crown is relying on circumstantial evidence in order to proof  a case of murder it has preferred against the accused herein.

 

It is trite that murder is the killing of another with the intention to kill the same; and the burden of proving the case against the accused rests on the crown, which burden has to be discharged beyond a reasonable doubt – vide R v. Difford 1973 AD 370 at 373. Also trite is that no onus rests on the accused to convince the Court of the truth of any explanation, even if that explanation is improbable in all its details, if sufficient, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false.  If there is a reasonable possibility of his explanation being true, then he is entitled to his acquittal.

 

There is a plethora of authorities to the effect that in all criminal cases, it is for the crown to establish the quilt of the accused and not to establish his innocence.

 

The crown has to prove all averments necessary to establish his guilt.  Consequently on a charge of murder, it must prove not only the killing, but that the killing was unlawful and intentional.  Vide R. v. Mdhlo 1945 AD 369 and  R. v. M. Davis 1946 AD where it was stated that “the Court does not have to believe the defence story ,still it does not have to believe in its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantively true”.

 

See also R. v. Kubeka 1982 CISSA 534.

 

The accused have further told the Court, and this has not been controverted that the sole purpose for their having taken the deceased with them to Ha ‘Makepile was so that the deceased, who had admitted having stolen a sheep in question; could go and show them and take out the carcass of same.

 

The crown has, on the other hand, submitted that the accused’s story in this regard cannot be true.  It says that the mission of the accused was to assault the deceased and that is why they did not stop accused 1 (Sekonyela) from beating the deceased.  It submitted therefore that the accused acted or had a common purpose to assault the deceased.

 

I pause to observe that in fact the above, if read and interpreted correctly is an admission by the crown that it was Sekonyela who had assaulted the deceased in the presence of the accused nos. 1 and 2.

 

The only reason why the crown says that accused numbers 1 and 2 acted in common purpose with the said Sekonyela is because they did not intervene or stop such assault upon the deceased by Sekonyela.

 

I note however that the accused repeatedly told this Court in their evidence in chief and under cross examination that they have at all times been intervening and trying stop such assault upon deceased  by Sekonyela, who was very angry, and who had also threatened to assault them.  In the light of this unchallenged evidence and submissions on behalf of the accused, It cannot with be respect argued that the accused now before Court acted in common purpose with Sekonyela.  Neither can it be said that the crown has proved that actually the accused had an intention to kill the deceased.

 

In the case of R. v. Sefatsa and Others 1988 (1) S.A.868, the court had this to say about common purpose:-

 

“A causal connection between the acts of every party to common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants”

 

It has accordingly been submitted on behalf of the crown that indeed since the accused were mentally ad idem on the purpose of their mission they should be found guilty as charged regardless of who was in possession of the weapon.

 

The crown actually submitted that the defence story in fact supports the crown case as it puts all the accused directly at the scene of crime and that the accused have in vain flavoured their story with imagined after thoughts of confused persons who simply want to run away from the truth.  Vide paragraph 12 of crown’s heads of argument.

 

With the greatest respect, the doctrine of common purpose relied upon by the crown does not apply in the instant case; for the following reasons;

 

-      There is evidence, which up to now stands unchallenged; that the sole reasons or purpose why accused 2’s mother, invited accused 1 to accompany the deceased and his son to Ha ‘Makepile was so that accused 1 could witness the pointing out and or the taking out by the deceased, of the carcass of the missing sheep.  No other reason was advanced even under cross examination with regard to the reason why accused went to Ha ‘Makepile; other than that they were to witness when the deceased pointed out and took out the carcass of the missing sheep.

 

-      There is no evidence suggesting that either before or after they left ‘Malebese’s home for Ha ‘Makepile, the accused ever planned to fatally assault the deceased.

 

-      There is also unchallenged evidence that in fact it was the said Sekonyela Delisa (since deceased) who first assaulted the deceased with a stick on the head while they were at ‘Malebese’s home before they left for Ha ‘Makepile.

 

-      There is also unchallenged evidence that at all material times before, while at and after they had come from and when they were coming back from Ha ‘Makepile, it was accused no. 2 who reprimanded, intervened and ordered Sekonyela to stop assaulting the deceased.

 

-      There is unchallenged evidence that accused 2 drove the vehicle in which deceased and accused 1 were travelling to and from Ha ‘Makepile and that as such accused 2 could not both drive the vehicle and assault the deceased at the same time. 

 

-      There in no evidence showing that any of the accused now before court were ever armed with a lebetlela stick which was broken into pieces when that stick was used to assault the deceased.  Neither is there any evidence showing or suggesting that any of the accused had with him pieces of cloth which they used to kill the deceased.  In fact nothing has been suggested by the crown to the significance it attaches to the said pieces of cloth and stick, which were found and collected at the scene of crime some thirty days since the occurrence of the incident in question.

 

In other words, the link or the nexus between the items in question and the accused has not been established.

 

It is not clear whether or not it is the evidence of the crown that the said items were left thereat by the accused on the day when it (crown) alleges that the accused assaulted the deceased.  Neither is it clear that the presence of those items, which items were fetched and or discovered thereat by the police some thirty days since the incident in question had occurred is attributed to the accused.

 

-      There are no reasons advanced by the crown why the police who first attended the scene of crime did not pick up the said items on that very day.

 

-      Neither has this Court been told by the crown that there were any blood stains, and or pieces of hair, found on any of the said items, which when later tested were found to march the blood or hair of the deceased.  What I am actually saying is that in the absence of any DNA tests done upon the said items, it cannot be inferred that such were the items used to assault the deceased fatally by the accused in this case.    

 

-      Put conversely, this Court is of the considered view that in the absence of any evidence to the effect that the said pieces of cloth and pieces of the lebetlela stick were actually murder weapons used by the accused to kill the deceased, it will be a miscarriage of justice to draw an inference that their mere presence thereat points to or that it is proof beyond a reasonable doubt that they are the weapons used to kill the deceased not only by the accused but by some other persons.

 

There is no iota of evidence suggesting that the place in question is not frequented and or open for use by other people other than the accused.

 

There is lastly, also no evidence suggesting that the pieces of stick were indeed of a lebetlela stick nor is this court being informed that such pieces of stick had perculiar features which could be attributed only to the one belongs to any of the accused herein in this case.

 

This is aside from the fact that none of the crown witnesses testified that any of the accused was seen being in possession of the lebetlela stick or being in possession of a piece of cloth prior to the journey to Ha ‘Makepile.

 

This brings me to the issue of intention i.e. legal intention to kill the deceased.  It has been submitted on behalf of the crown that the accused had a legal intention to kill the deceased.

 

The defence, on the other hand deny the above.

 

The authors, Burchel and Hunt describe legal intention – vide South African Criminal Law and Procedure, Volume I, page 119 as follows:-

 

“Legal intention in respect of a consequence consists of foresight on the part of the accused that the consequence may possibly occur coupled with recklessness as to whether it does or not.”

 

The crown submitted that in the present case, the accused did foresee that the consequence of the assault upon the deceased will be death, but they were reckless as to whether it happened or not. 

 

The quotation from the case of S. v. Sigwahla 1967 (4) S.A. 566, at 570E per Holmes J.A., must read:-

 

“Subjective foresight, like any other factual issue, may be proved by inference.  To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn.  It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so and even if probably did do so”

 

The crown submitted that taking the totality of the crown and the defence evidence, one may come up with only one inference that the accused did kill the deceased.  That the assaults or injuries inflicted upon him caused his death.

 

The difficulty with the above submission is the use of the word may, which I have underlined.  The crown itself does not say with certainty that indeed, the one and only inference that can be drawn from evidence adduced before court is that it was the accused now before court who fatally assaulted or caused the injuries which killed the deceased.  Vide paragraphs 13 and 14 of the crown’s heads of argument.

 

The crown seems to forget that actually there is unchallenged evidence that one Sekonyela Delisa (now deceased) is the one who hit the deceased with a stick on the head, thereby inflicting the fatal wound.  There is no evidence adduced before court that other than that assault by Sekonyela on deceased’s head, the other two accused persons did also assault deceased on the head.  We now know as a fact that the deceased has died as a result of the head injuries.

 

There is no evidence that the accused numbers 1 and 2 (Makitle and Ramokoena) ever assaulted the deceased on the head or at all.  In fairness to the accused, we also now know from the unchallenged evidence that Sekonyela was also armed with a whip which he later used to tie up the deceased.

 

The problem with the crown is that it has taken the actions of the accused generally whilst there is a clear and distinct role outlined by each of the accused now before court and which explains clearly which role was played by each of them in the incident.

 

The uncontroverted evidence adduced by the accused in their defence and their story as put to each of the crown witness is that it was Sekonyela who from the onset assaulted the deceased on the head with a stick.

 

Indeed, in the circumstances of this case, and on the basis of the case of R V. Blom 1939 A.D. 188, it will be wrong for this Court to conclude that, the only inference that can be drawn from the facts of this case is that it is the accused herein who have, on the basis of the proved facts; fatally assaulted the deceased.

 

Were this Court to draw such an inference; namely that all the accused have fatally assaulted the deceased; it would have overlooked the fact that:

 

-      The crown has not challenge the evidence that:

(a)The accused died of or as a result of the injuries he sustained when he threw himself over the cliffs – which fact was not brought about by any of the accused now before court.

 

(b)That the deceased died as a result of the head injury he sustained due to the assault with a stick on his head, and which assault was inflicted by Sekonyela Delisa (who was accused 1 but who has since died before the commencement of this trial)

 

The submission that the accused now before this court lacked the necessary legal intention of killing the deceased and that no common purpose on their part to kill the deceased, has been established, brings this Court to conclude that, they had no such intention, neither did they act in furtherance of a common purpose to kill the deceased, neither on their own nor in furtherance of a pre planned illegal common purpose with the now deceased Sekonyela Delisa.

 

We now know for certain that the head injury referred to in exhibit “A” herein, and to which the deceased (Makhaola) succumbed; was inflicted upon him not by any of the accused persons now before court in this case.

 

It is for the foregoing reasons, and in the circumstances of this case that this Court has come to the conclusion that the crown has failed to prove its case against the accused in this case.  The fact whether or not the police should have been involved in the case before the deceased was taken to Ha ‘Makepile, does not advance the case of the crown any further.

 

Both accused are accordingly found not guilty and are acquitted.

 

My assessors agree.

 

 

M. Mahase      

Judge

 

For Crown:                       L. Mofilikoane

For Defence:     A1    -       Adv. K. Nthontho

                        A2    -       Adv. P.S. Nts’ene