CRI/T/40/85

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

1. LERATO
SHA

TA

2.
TSELISO MAPHASA

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K.Molai on the 30th day of December, 1986.

The two
accused have pleaded not guilty to a charge of murdering Malefetsane
Pululu, it being alleged that on or about 10th May.
1985 and at or
near Phuthing in the district of Mohale's Hoek they, acting in
concert with one Thapelo Maphasa, unlawfully and
intentionally killed
the deceased.

Mr.
Moorosi, who represented No. 2 accused in this case, told the court
that by concernt with Mr. Klass, counsel for No. 1 accused,
the
defence would not' dispute the deposi­tions of Kakaretso Botsane,
Bokang Pululu, D/Tpr Leteba and Dr. Strupowski who were
respectively
P.W.4. 5, 6 and 7 at the proceedings of the Preparatory Examinations.
Mr. Seholbholo, for the crown accepted the admissions
mada, on behalf
of the accused persons by the defence counsels. In terms of the
provisions of S. 273 of the Criminal Procedure
and Evidence Act,
1981. the depositions of P.W.4, 5, 6 and 7 at the Preparatory
Examinations were accordingly admitted in evidence
and it became
unnecessary, therefore, to call the deponents as witnesses in this
trial.

It may be
mentioned that at the close of the crown case an application was made
for the discharge of No. 1 accused on the ground
that no case had
been established for him to answer. As it will be shown in a moment,
there was ample

2

evidence
which, on the face of it, clearly connected No. 1 accused with the
commission of this offence. I declined to deal with
the question of
credibility at that juncture and came to the conclusion that merely
looking on the fact of it, the evidence did
establih a prima facie
case against No. 1 accused. For that reason, the application for his
discharge was refused.

As he was
perfectly entitled to do, Mr. Klass told the court that, in that
event, he was closing the defence case. Mr. Moorosi initially
elected
to call No. 2 accused into the witness box. However, after a short
adjournment he told the court that, on second thought,
the defence
had decided to close the case for No. 2 accused without calling him
into the witness box or leading any evidence in
his defence. For the
decision in this matter we have, therefore, only the prosecution
evidence whose credibility I shall now proceed
to deal with.

Briefly
the evidence of D/Tpr Leteba was that on 12th May, 1985 he received a
certain report following which he proceeded to a place
in the area of
Mekaling within the district of Mohale's Hoek where he found a dead
body of a man. The body was identified to him
as that of Malefetsane
Pululu. On examining it for injuries he found that the body had
sustained multiple wounds viz. two open
wounds on the head, a wound
on the right side of the chest, a wound on the lips and a wound on
the right ear. He transported the
body of the deceased in a police
vehicle to the mortuary for Post Mortem examination and it sustained
no additional inju­ries.
I shall return to his evidence later in
this judgment

The
evidence of Dr. Strupowski was that he was the medical doctor, who,
on 13th May, 1985, had performed the post mortem examination
on the
deceased's body which was identified before him by Bokang Pululu and
Chabana Rachabana. This was confirmed by Bokang Pululu
who, as has
been pointed out earlier was P.W.5 at the proceedings of the
Preparatory Examination. As a result of the post mortem
examination,
the medical doctor found the following: a deep laceration on the

3

right
cheek, two wounds on the head, a skull impression, a fracture on the
left temporal with a sub-arachnoidal bleeding resul­ting
in the
death of the deceased. From the above injuries, the doctor formed the
opinion that an instrument such as a stick could have
been used, with
considerable force, to assault the deceased.

I am
unable to think of any good reason why the medi­cal doctor should
be doubted in his unchallenged evidence that the deceased
died as a
result of the injuries inflicted upon him. I am inclined, therefore,
to accept his evidence as the truth, on this point.

The
salient question that immediately arises is whether or not the
accused are the persons who inflicted the injuries on the deceased

and consequently brought about his death. In this regard, it is
common cause, from the crown evidence, that on the day in question,

10th May, 1985, there was a feast at the house of one Tsoabiso at
Mekaling, alias, Phuthing. The feast was attended by Kakaretso

Botsane, who was P.W.4 at the Preparatory Examination, the deceased
himself, Moeketsi Khama, Tseliso Kubetso, the two accused,
one
Thapelo Maphasa who is the father of No. 2 accused and many other
people.

The court
heard the evidence of P.W.I, Moeketsi Khama an accomplice witness. It
is significant to bear in mine that as such P.W.1
is not merely a
witness with a possible motive to tell lies about the accused persons
but peculiarly equipped by reasons of his
inside knowledge of the
crime, to convince the unwary that his lies are the truth. It is of
utmost importance, therefore, that
his evidence should be approached
with great care so that the risk of convicting an innocent accused
may be reduced.

In his
testimony P.W.1 told the court that during the feast he was with No.
2 accused when Thapolo Maphasa told them that a "dog"
which
was causing him trouble was present at the feast and invited them to
go with him for the "dog". By the "dog"
P.W.1
understood Thapelo Maphasa to mean a person who was pestering him. He
and No. 2 accused then

4

followed
Thapelo Maphasa to a person who was walking next to the kraals.

As it was
late after dusk and on a dark night that person was carrying a flash
light. When he came to that person, Thapelo Maphasa
started
delivering blows on him with a stick and the person fell to the
ground. P.W.1 and No. 2 accused then came and joined Thapelo
Maphasa
in his assault on that person who was trying to rise up. He (P.W.1)
hit that person on the ribs and noticed that one of
the blows
delivered by No. 2 accused landed on the head. He saw No. 1 accused
already delivering blows with his stick on that person
although he
did not notice when he had arrived at the scene.

After
they had beaten him up, P.W.I and the two accused returned to the
feast leaving Thapelo Maphasa standing next to where that
person was
lying prostrate on the ground. Thapelo Maphasa was at that stage, no
longer beat­ing up that person. After they
had left him at the
scene of crime, P.W.1 did not again see Thapelo Maphasa who had since
vanished from the village.

He
(P.W.I) later learned that the person they had been assaulting was
the deceased who was found dead next to the kraals. He and
No. 2
accused then decided to go for hidding at the cattle posts from where
they, however, returned after three days. They were
persuaded by the
chief and elderly people of the village to go and surrender
themselves to the police in Mohale's Hoek.

Returning
to his evidence, D/Tpr Leteba confirmed that on 14th May, 1985 he met
P.W. 1 and No. 2 accused. They handed their sticks
to him and made
certain explanations. He later met No. 1 accused who also gave an
explanation concerning the death of the deceased
and handed over his
stick. He had, however, not been able to meet Thapelo Maphasa who was
still at large. Following their explanations,
D/Tpr Leteba cautioned
and charged the two accused and P.W.I with the murder of the
deceased. He also took possession of their
sticks which he handed in
as exhibits at the Preparatory Examination

5

The
evidence of P.W.1 that it was suggested at the feast that a person
who turned out to be the deceased should be assaulted was

corroborated, to some extent, by P.W.2, Tseliso Kubetso, who also
told the court that during the feast No. 1 accused had told him
that
there was a person he and others intended beating up. No. 1 accused
did not, however, disclose the name of that person.

Later in
the night of the same day, P.W.2 received an information that a
person was seen lying prostrate next to the kraals. He
got the
impression that it might be the person No. 1 accused had threatened
that he and others were going to assault at the feast.
As it was late
at night, P.W.2 did not do anything about the information. In the
morning of the following day he did, however,
go to the kraals
where-he saw a dead body of a man whom he identified as the deceased.
He later reported to the police at Mohale's
Hoek what No. 1 accused
had said to him at the feast.

I must
say I carefully observed P.W.1 as he testified from the witness box.
He impressed me as a witness of the truth. I am prepared,
therefore,
to accept his evidence, corroborated to some extent by that of P.W.2,
that he and the two accused not only agreed to
Thapelo Maphasa's
sugges­tion, but actually assisted him, to assault the deceased
on the night in question.

That
being so, there is not the slightest doubt in my mind that P.W.1 and
the two accused, acting in concert with Thapelo Maphasa,
did inflict
upon the deceased the injuries described by D/Tpr Leteba and Dr.
Strupowski. The answer to the question I have earlier
posted viz.
whether or not the accused are the persons who inflicted the injuries
on the deceased and consequently brought about
his death must,
therefore, be in the affirmative.

In
assaulting the deceased in the manner described by the crown
evidence, the accused must, in my view, have realised that death
was
likely to result. They, nonetheless, acted reckless of whether or not
it did occur. That granted, I am convinced that the accused
acted
with the requisit sub-

6

jective
intention to kill, at least in the legal sense.

From the
foregoing, it is obvious that the view that 1 take is that the two
accused are guilty of the murder of Malefetsane Pululu
and I
accordingly convict them.

My
assessors agree with this finding.

B.K.
MOLAI

JUDGE.

30th
December, 1986.

For Crown
: Mr. Seholoholo,

For
Defence : Mr. Klass for 1st Accused

Mr.
Moorosi for 2nd accused.

7

CRI/T/40/85

EXTENUATING
CIRCUMSTANCES

The
accused have already been convicted of murder. In terms of the
provisions of S. 296(1) of the Criminal Procedure and Evidence
Act,
1981, I am now required to state whether there are extenuating
circumstances i.e. factors, connected with the commission of
the
crime tending to reduce the moral blameworthiness of the accused's
act.

In this
regard there is evidence that the two accused, P.W.1 and a certain
Thapelo Maphasa assaulted and killed the deceased at
a feast where
they had been drinking beer which was free-for-all.

Granted
that they had been drinking beer at the feast, there is no doubt in
my mind that at the time they joined Thapelo Maphasa
in the assault
on the deceased, the accused were under the influence of
intoxication.

It is a
well-known fact that intoxication affects the mind of a man so that
he does the things he would not do when sober. This
may properly be
taken into account as a factor tending to reduce the moral
blameworthiness of the accused's act - vide page 363
of the South
African Criminal Law and Procedure(Vo.II) 1970 ed. by Hunt.

From the
foregoing it is obvious that the view that I take is that by reason
of the accused's intoxication, extenuating circumstances
do exist in
this case and the proper verdict is that of "guilty of murder"
with extenuating circumstances.

My
assessors agree.

SENTENCE
: Accused 1 : 8 years imprisonment

Accused 2 : 6 years imprisonment.

B.K.
Molai

JUDGE

12th
January, 1907

For Crown
: Mr. Seholoholo,

For
Defence : Mr. Klass for Accused 1

Mr.
Moorosi for Accused 2.