CRI/T/20/86
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
V
MAKAFANE LETSOELA
EMMANUEL LETSOELA
JUDGMENT
Delivered by the Hon. Acting Mr. Jusctice M. Lehohla on the 15th day of September, 1987.
The two accused who are brothers stand charged with the crime of murder of their uncle a 65 year old Isdora Letsoela committed on or about 31st May 1985 at Ha Letsoela in the Berea district. The charge sets out that the accused in order to accomplish the killing of the deceased were acting in concert.
In an opening address the Crown stated that it would through evidence seek to establish that the motive for the killing was a long standing dispute over a tree plantation. Formal admissions on behalf of the accused were made by Mr. Maqutu on 18th August 1987. They are as follows:
Severe head injuries on the deceased;;
Compatibility of those injuries with use of blunt force;
The fact that deceased had been attended to in Leribe before being later transferred to Queen Elizabeth 11 hospital Maseru before he died;
The fact that under schedule 9 of observations as to external appearances in Ex"A" are listed
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four injuries set out as follows:-
Sutured lacerations
8 cm (left) pariental scalp (b) 3 cm (left) frontal
5 cm (left) temporal scalp,
1cm mid-chin (submental)
(5) That at the time of death the injuries had been sutured;
(6) That deceased was aged about 65 years and was obese. Further that others are not clear and are incomprehensible.
On the application of the public prosecutor who conducted the preliminary examination the magistrate accepted the instant Exhibit A then marked "B". The allegation was that the medical practitioner who had. performed the post-mortem examination had since left the country for good.
There was also accepted in that Court Exhibit "All" an admission form drawn up by a doctor who admitted deceased when he came to Maseru. The admission of this document before this Court was strenuously opposed by Mr. Maqutu for defence. At the end of the day i.e. on 21st August 1987 Mr. Mdhluli for the crown having failed after making a diligent search to secure documents which would facilitate the tracing of this document to its author, submitted that he was not going to seek any postponement to enable him to conduct a further search. Consequently Exh"A11" was ruled unusable before this Court.
However it was further shown in the document Exhibit "A" which was handed in that
"The whole of (left) pariental bone was separated from the rest of the vault and there was a huge collection of blood under the bone."
There is no doubt in my mind that to achieve the results
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set out in the paragraph immediately above savage or brutal force must have been used.
It remains therefore to determine in the light of evidence adduced on both sides who brought about such results.
P.W.1 Moifo Letsoela testified on behalf of the Crown that accused 1 and accused 2 are his uncles. They live in a village where he is a headman and therefore are his subjects. The deceased Isdora Letsoela was also his uncle and subject. The witness knew of the dispute between the two accused and deceased. The dispute was over tree plantation. The actual dispute which resulted in a fight that led to deceased's death centred on a tree that had been grown in a donga. The tree was in part of the land which deceased had won in legal battle against accused 2.
P.W.1 testified that deceased made a complainant to him; namely that the tree that he had chopped had been removed without his knowledge or consent by accused 2,
Thereupon P.W.1 detailed his personal messenger called Sefoboko P.W.2 accompanied by Letsie Molapo and deceased to find out whether the tree complained of had been in fact in the portion of the land where deceased had won it in litigation.
P.W.1 went further to say he had in fact informed accused 2 in deceased's presence that an inspection was to be held following the complaint lodged by the deceased. It may just serve purposes of clarity to mention that accused 2 was involved in the legal dispute over the land
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in question on behalf of a relative of his called Mphonyane who laid claim to it by inheritance from her mother 'Maeliza.
P.W.1 further stated that Sefoboko came and made a report to him after a long time and that deceased was absent when this report was made. After that report P.W.1 said he met accused 2 very late after all and. everybody had made reports to him. He said he never spoke to accused 2. Instead he went to Ntsoaki Khetha's home after receiving the report. On arrival there he was informed that deceased had been taken to hospital and later that he had died in hospital. Apart from this dispute he knew of no disharmony between accused 2 and the deceased. With regard to relations between deceased and accused 1 the witness said the two used to talk to each other but was quick to state that he was not always with any of these people involved. He explained that the reason for this was that they stayed in different homes, though in the same village. He was not asked if he would have known should relations have not been as he stated. In any event I noticed a veiled attempt on P.W.1's part not to commit himself about any knowledge of bad blood between the deceased and any of the accused.
There was an attempt in cross-examining this witness to show that at the appeal stage Mphonyane won the land in which the tree grew. The witness said he was not present so he knew nothing about the events at appeal. However what I find important in this aspect of the case is that at the time of deceased's death
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there was a Court's decision in his favour regarding the tree and the land in which it grew.
P.W.1 said he told accused 2 the previous day that an inspection of the area in dispute would be held the following day. He admitted that accused 2 came late after others had left for the plantation. He also admitted that the man who accompanied P.W.2 to the plantation was Letsie Molapo who is not his subject. It happens to be a fact that Letsie Molapo stayed at deceased's house because deceased was married to this Letsie Molapo's sister, P.W.1 however regarded P.W.4 as either a friend of the deceased or his employee. One thing he knows is that P.W.4 used to herd after deceased's animals. However at and around the time in point he was no longer herding after deceased's animals.
Asked if.P.W.4 at this time was working for deceased P.W.1 said "I don't know but he was always there." In the light of the evidence that revealed that P.W.4 was related to deceased's wife a different complexion is given to the strenuous attempt at showing that he was just a lackey of the deceased.
P.W.1 further conceded that the correct procedure would have been for the chief's messenger to go to the plantation accompanied by the two disputants i.e. deceased and accused 2. He also conceded that it was unfortunate that P.W.2 left with deceased before accused 2 came.
He ...was referred to a statement appearing on page 2 of the P.E. record wherein he is recorded as having said
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"I saw them on their arrival from the tree plantation and accused 2 was the first to arrive. The messenger came later on and
reported that he had run away when there was a fight on the way back. He said that the two accused were fighting against the deceased
Isdora Letsoela. Accused 2 made a report to me that he was intervening when accused 1 fought the deceased."
P.W.1 admitted as true the statement he made in the magistrate's court and further that events were then relatively more fresh at the time in his mind. He was emphatic though that accused 2 came late to him and. was consequently told that others had left for the plantation.
In his turn P.W.2 Sefoboko Sefoboko told the court that he is P.W.1's subject, does nothing for a living but truly knows the two accused as well as the deceased. He did not know how deceased carried on with the two accused.
In June 1985 he was called to P.W.1's home through P.W.1's agent P.W.4 Letsie.
On arrival at the chief's place P.W.2 was asked by P.W.1 to intervene between deceased and accused 2 for they were disputing over a tree. Thereupon P.W.2 went looking for accused 2 but did not find him at his home. However he left the message with accused 2's wife that he and the man accompanying him i.e. P.W.4 Letsie were setting out for the plantation. Then P.W.2 proceeded to tell the court that he and his company waited for a long time for the two accused but when these did not arrive he, P.W.4 and deceased left. On arrival at the plantation P.W.2 saw a tree in a donga. This was
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the tree he had been detailed to inspect.
Then he and his company returned. On their way-back home they met accused 2 whom P.W.2 told that he and his company were already returning from the plantation having waited for him to no avail before coming to the plantation. Accused 2 proceeded on his way to the plantation.
After sometime P.W.2 while still walking home with his companions saw accused 2 and his brother Makafane accused 1 catch up with them. There and then accused 1 hit deceased at the back of the head and felled him. Accused 2 hit the deceased too while the deceased was lying on the ground. P.W.2 says that when thus assaulted deceased had not said anything to any of the accused. Referring to the disposition of the two accused when they arrived and when they assaulted the deceased P.W.2 said their eyes appeared furious. He further testified that both accused were using sticks to assault the deceased.
His mode of intervention on behalf of the deceased was by. making verbal pleas to the accused asking them why they were hitting the deceased and whether they didn't realise they were injuring him, P.W.2's pleas were not heeded. Then he left in order to report to the chief. Even as he left the two accused were beating the deceased up. He further said he didn't see P.W.4 when he left the scene because he was running away.
He came back later to the scene at around 10 a.m. or after. Deceased had already been taken away then.
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P.W.2 said he learnt of deceased's death afterwards. He never knew of any quarrels between deceased and any of the accused. He had no knowledge of any of their blood or family ties. He never even knew of the dispute between Mphonyane and deceased over the plantation.
He was adamant that neither he nor any of his companions was armed at the time of the incident, that deceased didn't fight when assaulted, that deceased was lying on the ground when he ran away and that he had not said anything when the assault started till he ran out of earshot of the deceased.
Under cross-examination he said he was not aware that his mission required him to reconcile the parties involved in the dispute. In fact in re-examination he said his was to go and inspect with the parties the object around which the dispute revolved.
He placed the time at which he and his companions went to the forest at about 9 a.m. while the time at which the fight took place was about 10 or 11 am.
The plantation was estimated at about two miles from home. (The witness pointed at the mountains in the Free State as the point of his estimation of the distance in question). It was clear to me that at this juncture proceedings had sunk into an area which is very difficult to rely on namely the illusive estimation of an ordinary Mosotho regarding time and distance. My own estimation of the distance between the court room and the Caledon which divides it from the mountains is two miles. The mountains are a good fraction of this distance away from
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the Caledon itself.
The following questions put by the defence counsel will give a mere glimpse of what I mean to illustrate:-
"If you did go to the plantation then you wouldn't be back from there before an hour -? That's according to my estimation as I view this". "You must have gone there at eight not nine o'clock? I believe you for I can't calculate the time."
Nothing much turns on this, though it would have been beneficial if there had been some more clarity as to the times and distance. However be that as it may.
P.W.2 denied that it was deceased who struck accused 1 with a stick first. He denied the suggestion that it was because he was not telling the truth that he chose to say deceased said nothing before and during the fight. He denied that deceased was armed with anything.
Mr. Magutu for the defence made reference to a medical report which the crown admits was on its file though it does not admit its contents. Relying on this report Mr. Maqutu put to P.W.2 the question that accused 1 was injured on the day of the fight and that the form shows he sustained an injury which had to be sutured. P.W.2 admitted that this was a matter of surprise to him.
He however pointed out that he did not witness the entire fight to its close as he had to flee. It was strange though, that the chief got the report of the fight from accused 2 who left the scene much later than P.W.2 yet P.W.2 says he never went anywhere else before
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going to the chief's place. For that matter P.W.2 said he even ran to the chief's place from the scene. The distance between the chief 's place and Ntsoaki's where the fight took place was estimated at between a kilometre and a mile as the crow flies from the court room to RLDF quarters. It would seem to me that P.W.2 -is not truthful in suggesting that despite the fact that he had a good head start and was running he was beaten to the chief's place by accused 2 who it was not even suggested went there running. P.W.2 must either have gone to the chief's place via some other place or must have hidden somewhere along the way to rest in order to recompose himself from the fright he received on seeing the fight break.
It was put to P.W.2 that parties to the fight were not silent and that P.W.2 must have heard deceased swear at the accused calling them "Lifolotsana" meaning abortions or slinks a term used in Sesotho to. refer to a calf born dead; often born so prematurely. He denied this.
P.W.2 readily conceded that the chief's place was about 300 to 400 yards from the scene of the fight. Surprisingly this did not make him recoil with any self-doubts despite that the estimation he gave of the same distance was far much greater.
P.W.2 was taken to task about why he ran away despite that there was no question of danger posed by any of the accused to him. He explained that he ran away to report to the chief what he had observed befalling the deceased. He conceded that he took the shortest route to the chief's
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place yet amazing to relate he is reported to have come there much later than accused 2. It may be worth noting though that despite the disparity or conflict as to what P.W.1 said at PE. and in this Court on the question of who between accused 2 and P.W.2 arrived first to P.W.1 the latter was not taken to task. The conflict having been established defence counsel found it fitting in his address to the court to say the only conclusion to reach having considered this conflict is that P.W.1 had been got at by the family of the deceased. It would have been wise to put to P.W.1 this conclusion in order to give him an opportunity to admit it or deny it. I think it would be rash to regard as valid a conclusion reached in circumstances set out in defence counsel's submission in the light of P.W.1's otherwise straight forward evidence, not tainted by any wisp of bias or deliberate attempt to mislead the court.
Under cross-examination P.W.2 was adamant that as they were walking deceased was hit and he fell and that accused 2 joined in the
belabouring that ensued. He gives as the reason of his insistence on the accuracy of his narrative the fact that he was there and he saw these events occur in his presence. He insists that his intervention was confined to verbal pleas to the accused to stop belabouring deceased.
To the question put: "Letsie also did nothing -? I didn't see what he did" he replied. Further it was put to him "You ought to have seen what Letsie claims to have done if you were present when deceased was hit -? I didn't see what Letsie did."
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"Letsie says at Magistrate's Court: Accused 2 joined the assault while deceased was still on his feet and staggering before he fell -? I didn't see that," "Accused 2 intervened and stopped the fight and did not assault the deceased -? No one intervened. They were both fighting."
P.W.2 insisted that he saw accused 1 hit the ' -deceased several times. He however denies that the hitting was effected several times before the deceased fell. His narrative is "I saw him hit deceased once and he fell". He said the stick used by accused 1 to hit deceased was the timber stick yellow and brown in colour. He denied that accused 1 used the iron rod of about 2½ feet in length.
To the question - "That stick which is about a metre long belongs to accused 2 -? It was carried by accused 1" - he replied.
He said he was not certain if accused 2 was carrying the reinforced stick,
Under re-examination he explained that he left the scene when deceased fell and was being belaboured.
P.W.3 Richard Letsoela testified to his knowledge of quarrels between deceased and accused's parents over the plantation. He testified that the disputed plantation between deceased and accused 2 was awarded to deceased. He denied conspiring with anybody to deceive the Court. Otherwise the balance of his evidence was no more then hearsay.
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P.W.4 Letsie Molapo testified that before 31st May 1985 he stayed at deceased's place. He grew up there as deceased is his brother-in-law.
On the day in question he had been ordered by P.W.1 to go and call P.W.2 with whom he came along. He had been with deceased's company earlier when the two of them went to P.W.1's place. Then at about 6 am, they set out for the plantation to inspect the source of deceased's complaint. He explained that this was after sunrise.
My reference to the 1985 Legal Diary showing times of sunrise and sunset at Johannesburg in standard time of South Africa shows that the sun rose only at 6.46 am, on 31st May 1985. In respect of Ha Letsoela one would make an allowance of plus or minus two minutes for the sunrise on that day.
P.W.4 said that he and deceased and P.W.2 came to the plantation and saw that one tree had been cut and further testified that none of the accused was present when this inspection was going on. After ascertaining the facts in the plantation they went back home. When they were near Ntsoaki's home the two accused caught up with them.
Then accused 1 who was on horseback dismounted, drew a sword and came towards the deceased. He explained that the object that accused 1 held was shiny and sharp. He said the deceased was at the time bending trying to tie his shoe. Accused 1 came rushing to him and without saying anything started beating deceased with
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it behind the right ear. Accused 2 mounted a horse and immediately dismounted it and rushed towards deseased armed With a timber stick and hit deceased with it while the latter tried to stand up. He said accused 2 then pulled a sword from under his blanket and struck deceased with it on the head and later under the chin. He said at this time P.W.2 had already run away as he fled at the stage when accused 1 rushed at the deceased. He supports P.W,2's evidence to the effect that P.W.2's intervention consisted of words to wit: Fellows what are you doing killing the man I am walking with," and further to the extent that none of the accused heeded that oral intervention. He testified that the beating took place for a long time that he said he was not able to estimate and that he tried to intervene by throwing stones at the accused but was surprised and disturbed by someone who came from
behind and threw a stone at him forcing him thus to betake himself from that spot to another from which he no longer threw any stones but waited and watched.
Under cross-examination he conceded that the length of time spent by accused belabouring the deceased could not have been less than three quarters of an hour.
In his evidence in chief he explained that after the blow received by deceased from accused when the former was trying to rise he never tried to rise again. He further stated that deceased was not carrying anything with which to ward off the blows delivered by the two accused. He said he knew the timber stick and that it belongs to accused 2 and that he saw him use it at the material time on 31st May 1,985.
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With respect to P.W.2 it was stated by P.W.4 that he was carrying a twig. He denied any knowledge of the cable stick. He further denied that deceased was carrying it at all. He was shown half length of a fencing rod commonly referred to as a dropper used in constructing fences. This was wrapped in masking tape. P.W.4 said he never saw it on the day of the events.
He denied that deceased directed the word "Sefolotsana" to the accused. He went so far as to say he didn't know what it means, A very strange thing indeed coming from a man who is reputed to have been herding after live stock for a long time. It is doubtful that even if he lived in a rural society which adhered firmly to the motto: See no evil say no evil and hear no evil the utterance of the word sefolotsana would escape P.W.4's ears, or his knowledge of the object with which that word is associated.
P.W.4 testified further that after the accused stopped beating the deceased they left him there lying on the ground while he went to report to the chief. He then went looking for a vehicle which was later used for conveying the deceased to Hlotse hospital. The deceased was still alive then, P.W.4 saw the injuries on the deceased. They consisted of a wound behind the ear another on top of the head, others on chin and left thigh. Deceased was not talking when conveyed to Hlotse and later to Queen Elizabeth 11 Hospital in Maseru by ambulance accompanied all the while by P.W.4.'" To P.W,4's observation deceased was in the same condition on arrival at Maseru as he had been when he came to Hlotse.
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Under cross-examination he said the swords used by the two accused were about 2½ feet long. That they were shiny and that accused 1's sword was wrapped in black tape at the handle. The rest of its body was also sharp. As for accused 2's he said he could not see its handle. He said the belabouring with these swords on deceased lasted a long time. The time was estimated at about 45 minutes being the time from which Court started at' 9.30 am. to 10.15.am. being the point in time at which P.W.4 gave the foregoing reply. He however said ,he. could not estimate the time and further said he has not been conscious of the passage of time since the start of his evidence to the moment in point.
Defence Counsel put to him the question:
"Had they spent all that time the head where they were concentrating their blows would have been mangled -? I am not the one
who was. assaulting" he replied. "This whole assault with swords is a figment of your imagination. It is improbable -? It is not imagination. I saw it done in my presence." "For the time you estimated the deceased was being hit non-stop -? I had no watch I don't know how many minutes it took.""They hit him with these swords so many times that it was hard to count -? Yes". "On a fallen man -? Yes" "Using words-? Yes" "If what you say is correct you would see many wounds -? I found four wounds. "Only 4 yet the man was hit innumerable times -? Yes".
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The Court asked at this stage:
"Didn't it surprise you that they were only 4 despite the many blows delivered to inflict them -? There were some on the ribs and knees,"
He conceded that he was suggesting there were more wounds than he had mentioned.
He was referred to page 7 of the P.E. record and shown that he had said nothing about the wounds he had mentioned at the magistrate's court. At P.E. he had referred to the following wounds:-
one over the left eye
another over the middle of the head
one on the lower lip
The other wound on the right thigh.
He said he was surprised that the doctor's findings revealed that injuries were consistent with use of blunt force.
He denied the accused's story put through their counsel that deceased looked towards accused 1 and said "I won a case against their father Ralipoli who has died, I don't see what they being Lifolotsana think they can dispute over a plantation with me." He denied that accused 1 thereupon asked what deceased was saying. He further denied that at that point deceased rushed towards accused 1 and hit him with a cable stick on the forehead. He denied that accused 1 hit deceased with the iron rod. He conceded that he used stones but qualified his answer by saying he only used stones at the time the accused were assaulting the deceased. He denied accused 2's version
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that P.W.4 threw a stone which missed accused 2 such that he dismounted from the horse with the result that P.W.4 ran away. He further denied that it was immediately-after he had run to the hillock 30 paces away that accused 2 intervened the deceased and that it was then that deceased followed
He denied accused 's version that he assaulted deceased in self-defence and that accused 2 intervened He denied P.W,1's statement that accused 2 reached him before P.W.2 did.
Although he had earlier said they left for the plantation at sunrise he later said the sun rose when he and the deceased and P.W.2 approached the plantation. He explained that they had to go early to the plantation because it is far away - a distance of between Ha Thamae and PMU. estimated at about 6 km.
Apart from the fact that P.W.4's story seems to be highly exaggerated as to the length of time spent by the accused assaulting the deceased it does not sound credible as to its reference to the use of swords by the accused on deceased. It is also questionable why it was only when asked by court whether the stone thrown by the stranger who forced him to betake himself a distance away hit him, he said it hit him between the shoulders. One wonders why at the time he mentioned this particular incident he did not say the man hit him with stone instead of confining himself to a general statement implying that the man threw that stone in his direction.
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P.W.5 Detective Trooper Leuta told the court that he was involved in the investigation of this case and that he arrested accused 1 at Maputsoe in connection with deceased's murder. Accused 1 gave him the iron rod exhibit 1 and said it had been used in the fight with the deceased. He arrested him on 3/6/85. When P.W.5 met accused 1 on 2/6/85 accused 1 showed him an injury he said he had sustained at the fight with deceased. This injury was on the head. P.W.5 made no other observation besides the injury he was shown.
Under cross-examination P.W.5 conceded that he saw accused 1 on 31/5/85 and gave him a form with which to see a doctor. The form shows the time 18.00 hours as the time when accused 1 was attended to at Maluti Hospital at Mapoteng.
It was however pointed out as strange that accused 1 should have sought assistance of Mapoteng police station instead of the Maputsoe police station which is nearer not only to his home but to the scene of events. Stranger still was the fact that accused 1 said to the policeman who issued the form to him that deceased was still at home and that he never mentioned that deceased had sustained serious if any injuries at all during the fight.
Indeed it was P.W.5's evidence that "nothing of what he (accused) said made me suspect that the deceased was in a bad way."
P.W.6 Lt. Sgt. Mohlaka testified that he knows both accused 2 following a report he had received earlier.
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On 1/6/85 P.W.6 having warned accused 2 of the nature and purpose of his visit to him warned accused that he was a suspect in the matter of Isdora Letsoela's death.
Following this explanation accused 2 handed over to this witness a brown and yellow timber stick exhibit "2". It is P.W.6's evidence in chief that accused 2 said when handing over to him this stick that this was the stick he used on Letsoela. At this point in P.W.6's evidence the assessors had been asked to clear the court room but in keeping with the ruling in David Petlane vs Rex 1971 1973 LLR 85 it was ruled that it does not amount to a confession when an accused person says he assaulted or even killed another because "it contained no admission that he had killed anyone intentionally or unlawfully" See Petlane (supra) at 88 and 90.
P.W.6 further states that after arresting accused 2 he inter viewed P.W.4 Letsie Molapo and asked him what deceased was carrying as he was accompanying him on that day of the events. Thereupon P.W.4 indicated to him a black cable stick consisting of several strands of wire measuring about one metre in length. The witness handed in this cable marked exhibit "3" by this Court.
Under cross-examination P.W.6 denied the suggestion that accused 2 said when this witness came there he said "produce the sword".
He further denied the allegation that accused 2 stated that he had no sword, for as P.W.6 reasoned" I had never demanded any sword from him."
He further disagreed with the invitation by the defence counsel to the effect that accused 2 would say he never
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used the stick but rather handed to P.W.6 the stick being the one he carried that day.
He however insisted that despite his version to the contrary P.W.4 Letsie Molapo is the one who gave him the cable stick "Ex.3"
This important aspect in the case cannot be ignored especially as it comes from the Crown witness. My conclusion with respect to it is that it is patently clear that P.W.4 was not telling the truth when he said deceased had nothing in his hands on 31/5/85.
P.W.6 further denied that it was his own conclusion that accused 2 said he used "Ex.2" in the fight.
If I may add at this point; the court's impression of this witness is that he gave his evidence without bias or attempt to favour either side. He strikes me as truthful and therefore as a reliable witness. I have no doubt that his evidence taken as a whole is beyond reproach on its material respects.
At the close of the crown case accused 1 Makafane Letsoela gave sworn testimony the purport of which was that while deceased died on 31/5/85 the judgment which had been in his favour with respect to the land in dispute was upset on appeal in 1986. He emphasises that after the decision in 1986 there was no more appeal on the matter.
As to the events surrounding deceased's death he said that he had been told by accused 2 that there was going to be an inspection of a tree cut by deceased on 31/5/85. On the day in question he set out for the
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plantation at about 7.30 am. and met with deceased, P.W.2 and P.W.4 on their way back from the plantation. He greeted them and passed on. On his arrival at the plantation he found accused 2 and asked what decision had been reached by him and the others he had met on his way to the plantation. Accused 2 explained that he had met with those others on their way back therefore he had not been told of any decision.
Accused 1 then was no longer on horseback. His younger brother was though. The two came along till they reached near Ntsoaki's home where accused 1 heard deceased say "As for these lifolotsana, I'll show them a thing for not even their father ever vanguished me in a case, what do they think they can do" whereupon accused I asked what deceased was saying only to be there and then hit by the deceased on the head with the cable stick Exh."3".
Accused 1 was carrying "exhibit 1" the iron rod. He delivered two blows to the deceased's head. He also says he hit him the third time. At this time he was being pelted with stones by P.W.4, he says. He even reckons that one of those stones might have hit the deceased. It was while he was hitting the deceased with the iron rod that accused 2 came to intervene. He testified that deceased fell while thus being hit with the iron rod. As P.W.4 was continuing to throw stones at accused 1 accused 2 stopped accused 1 from attacking P.W.4.
Accused 1 says he did not hit deceased while lying on the ground. He further says deceased rose but was
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not hit yet he fell again. He pointed out that P.W.4 was not telling the truth when he said he was using a sword to assault the deceased. He also pointed out that accused 2 never at all hit the deceased.
After the deceased had fallen accused 1 says he took his horse and rode home from where he went to Kolojane where he hoped to find soldiers to report to about his fight with Isdora. He however did not find any soldiers there whereupon he reported to the chairman of Kolojane village. A letter was issued to him and taken to the police station where another was issued to be taken by him to Mapoteng Hospital where his injury was attended to by a doctor. The form he was given by the police to take to the doctor was handed in and marked Exh."B".
He said that he handed the iron rod to the police after his arrest.
Under cross-examination he said he knew deceased to be a very shrewd man. He testified that he detested his shrewdness. He regarded deceased as old enough to be his father. Accused 1 said he is illiterate. He further admitted that he was stronger than the deceased. He denied that he disliked the deceased but his ways. He thought deceased was cunning. He regarded deceased's ways with intense dislike.
Accused 1 says he was informed at night the previous day that there was to be an inspection of the plantation.
He admitted meeting deceased, P.W.4 and P.W.2 on their way back from the plantation.
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He however denied knowing that P.W.2 was the chief's representative. He said he never formed any opinion that the three had been to the plantation or that they had anything to do with it. All he thought was that they were on some errand of their own unknown to him. However he conceded that he expected that they might have been to the plantation. He did not ask them though if they had been for according to him he thought messengers were yet to be detailed to come to the plantation.
He went to the plantation where he found accused2. His. younger brother told him that those people had done the inspecting on their own. He was not involved because he too when he came there those people had already come back from the plantation. He and accused 2 who was on horseback proceeded along the way going home and intending to go and see P.W.1 but when they caught up with deceased's company deceased insulted him and his younger brother.
Accused 1 says the offensive words were uttered in a loud voice by the deceased facing him. When he inquired what deceased was saying the deceased then inflicted the blow with the cable stick "Exh."3" on his head. Then the fight started. P.W.4 began throwing stones at accused 1.
Asked whether P.W.4 threw the stones before accused1 reacted to the offensive utterances by deceased he said "At the time he
delivered the blow." He said P.W.4 was about 3 paces away when he started throwing stones at him.
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He concedes that he was confronted by two people from two angles and that consequently his attention was divided between the two i.e. deceased and P.W.4. He further stated that deceased missed him but hit his blanket when P.W.4 was throwing stones at him. Because he had the iron rod in his hand he used it to belabour the deceased with it. He however did not count the number of times the iron rod hit deceased. He said he beat the deceased twice before he fell down; and that after he fell he said "I beat him for 3rd or 4th time. I don't know for he was fighting back". Asked how deceased could have fought back when he had fallen, accused said "I beat him twice while he was in the standing position."
Accused 1 does not deny belabouring the deceased while the latter was on the ground. He said he did not count the number of times he belaboured him. He remembers that accused 2 intervened. He conceded that he did not remember the number of times he hit deceased, while on the ground because he was besides himself with rage.
Asked why he continued hitting the man lying on the ground and whether he could in the circumstances regard him as a danger to him he replied "He appeared to be wanting to rise again."
Asked whether he had no compassion for a man who was not only a relative but old enough to be his father when beating him so ruthlessly
accused said the deceased was not his father's equal and that he was confused.
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When it was pointed out to him that bones were found to have been broken and deceased's jaw separated from the skull, accused said he would not admit causing that type of injury and suggested that the man who was throwing stones might be responsible for it.
He however admitted that he could have caused the serious head injuries found on the deceased.
It is strange that accused 1 should suggest at this stage of the proceedings that P.W.4 hit deceased with a stone while the deceased
was lying down yet at no stage whatsoever in his defence was it put to P.W.4 that he is partly responsible for injuries caused on the deceased. This suggestion is rejected as devoid of all truth.
Indeed accused 1 painted a very pathetic picture of the events at this point when he was under cross-examination. He said that P.W.4 hit deceased with a stone when he had already been separated from the deceased by accused 2 but realising that this answer makes it appear as if the hitting by Letsie occurred when he (accused 1) was no longer on the scene he sought to explain it away by saying "this took place for a short time."
Further "At the time you say Letsie threw stones you allege you had stopped hitting deceased -? He threw stones when we were fighting. Did he beat you -? He missed me. All the time yet he was so close -? I was dodging. Dodging stones and belabouring at the same time -?
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I did not inflict more than 3 injuries. How did you manage to dodge stones and beat up deceased at once -? I did".
Accused 1 admitted that within the short time he alleges the fight took place results were brutal and effective.
He was unable to give a reasonable explanation for the fact that instead of deceased's venom being directed at accused 2 who was the man concerned in the disputed land it should be directed at someone who hadn't anything to do with it.
The version of accused 2 Manuel Letsoela as to the fight is to all intents and purposes similar to that of accused 1. He told the court that when he and accused 1 caught up with deceased and company deceased said "what do these stinks (lifolotsana) think they can do when I have vanquished their father." Then accused 1 asked him what he was saying. But before he could even finish the sentence deceased had inflicted a blow on accused 1's head with "Exh.3". Then accused 2's horse shied. As he corrected its course accused 2 was confronted with a stone which he dodged and he dismounted amidst a number of stones thrown at him by P.W.4. He approached P.W.4 who ran away. Then he came to separate accused 1 from deceased who had fallen.
Regarding the arrest accused 2 says on arrival from Ficksburg he found a policeman who was to arrest him in the company of P.W.4. and two other policemen.
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Two of the policemen asked "where are the swords and invited the chief to go along with them to accused 2's place.
Under cross-examination he said he saw deceased hit accused 1 with a stick and that at the time he accused 2 was still on horseback. P.W.4 was throwing stones at him as a result of which he dismounted and chased after him. Regard being had to the fact that P.W.4. was throwing these stones in order to relieve deceased who was hard pressed by accused 1, it is difficult to understand how as accused 2 put it "There were many stones thrown at me by Letsie." It is also difficult to see how if indeed accused 2's efforts were directed at intervening in order to separate accused 1 from the deceased P.W.4 could be relentlessly throwing stones at him (accused 2).
It is difficult to see how accused 2 hoped to effect his intervention in the face of the following :
"As soon as you had ducked from the stones you started chasing P.W.4 -? I was not chasing him but was going towards him. Was it to greet him -? To ask him why he was throwing stones at people who were fighting. You were going to confront him with that -? Yes. He was then concentrating on you -? Yes, When he was running away -? I then turned to intervene between accused 1 and deceased."
As a coping stone to his interest in the encounter accused 2 said he did not observe any injuries on the deceased after separating accused and deceased. Asked why he didn't observe the injuries he said it was because he was intervening and thereafter he went
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to the chief's place to report. Indeed he went so far is to say that when he left the deceased the latter was in a sitting position. Accused 1 says deceased was lying on the ground.
There is authority in Hoffman's South African Law of Evidence 3rd Edition at page 461 for the view that
"In certain circumstances however the making of a false statement may throw an unfavourable light upon a fact previously neutral, which can become an item of corroborative evidence,"
In Broadhurst vs Rex 1964 AC. at 457 the following words appear and they are appropriate in the instant case.
"........save in one respect, a case in which an accused gives untruthful evidence is not different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused's. conduct or state of mind, his untruthfullness is a factor which the jury can properly take into account as strengthening the inference of guilt ...."
While it is understandable that accused 1 should naturally adopt an attitude of a protective brother towards accused 2 by shielding him from the commission of the offence charged, and allot to himself the entire blame it defies all logic that accused 2 should in his untruths contradict even accused 1.
On the submissions made by both counsel and concessions by the crown that there might have been provocation offered by the deceased to accused 1 coupled with the undeniable fact on evidence that deceased
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was carrying the cable stick with which he struck accused 1 on the head I have no difficulty in finding that though provoked accused 1 exceeded the bounds of self-defence by a very great margin indeed to the extent that he kept on hitting a man who was already on the ground lying there and helpless.
Accused 1 is found guilty of culpable homicide.
As for accused 2 I have shown that his version of the events cannot sincerely overcome P.W.6's version that he admitted having used the timber stick on the deceased. As pointed out by the Crown the evidence of P.W.4. was tainted with exaggerations and downright lies. The same cannot be said of the evidence of P.W.2. The events which he witnessed before fleeing have a ring of truth in them. He said that after the deceased had been beaten by accused 1 and had fallen on the ground accused 2 Joined in the assault, P.W.2 was not shaken in this aspect of his evidence that associated accused 2 directly with the vicious assault on the deceased.
Mr. Maqutu argued that accused 2 be given benefit of doubt. But Malan J.A,'s words in R vs Mlambo 1957(4) SA. 727 A.D. at 738 are very appropriate to the effect that .
"An accused's claim to the benefit of a doubt when it may be said to exist must not derive from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or out weighed by, the proved facts of the case."
I do not think that accused 2's claim to benefit of doubt is Justified.
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He is also found guilty of culpable homicide.
Sentence :
Accused 1 is sentenced to 4 years' imprisonment.
Accused 2 is sentenced to 4 years' imprisonment or M4000 of which half is suspended for 3 years on condition that he is not convicted of a crime involving violence committed during the period of the suspension.
15th September, 1987.
For the Crown : Mr. Mdhluli
For the Defence: Mr. Maqutu.
