CIV/T/5/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

1. MOLEFI
KHATEANE

2.
ARABANG LESIAMO

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 21st day of December, 1982.

Molefi
khateane and Arabang Lesiamo (hereinafter referred to as accused 1
and accused 2 respectively) are charged that on or about
the 30th
May, 1981 and at or near Rothe in the District of Maseru, they both
or either of them, unlawfully and intentionally killed
one Hlabeli
Paki.

The
prosecution called eight (8) witnesses to testify on its behalf. At
the end of the crown case the defence closed its case without
leading
any evidence. The court has therefore only the crown evidence to
consider and determine whether in law the commission of
the crime by
the accused has been proved beyond a reasonable doubt.

It
appears, according to the evidence adduced by the crown, that on the
night of 30th May, 1981, the deceased, Hlabeli Paki, arrived
at his
home at Ha Ratau in the area of Rothe in the District of Maseru from
his place of work in the Republic of South Africa to
find his wife,
'Makatleho Paki (P.W.2) in bed with another man, Seabata Mohloki. On
his arrival the deceased knocked

2

at the
door and asked P.W.2 to open for him P.W.2 recognised him by his
voice. However, she delayed to open the door because she
was sleeping
with another man in the house. When she eventually opened the door
P.W.2 rushed out of the house and bumped against
the deceased who
fell to the ground. Seabata Mohloki then managed to escape and run
away. The deceased got up and in an attempt
to get hold of her
followed P.V.2. He was unsuccessful and P.W.2 ran into the house of a
neighbour, one 'Mankareng Mohloki. While
in 'Mankareng Mohloki's
house, P,V.2 could hear deceased talking at the home of one Tsotsi,
another neighbour. According to P.W.2
the deceased was complaining
that he had brought something (she could not follow what) for his
wife and found her sleeping with
another man in his own house. He was
therefore going to see his relatives so that he could divorce her in
their presence. When
she overheard the deceased saying these words,
P.W.2 decided - to go and call her own father. At about 4 O'clock in
the morning
P.W.2 accordingly left

'Mankareng
Mohloki's house for her parental home at Matukeng. I shall return to
P.W.2's evidence later in this judgment.

The Court
also heard the evidence of P.V.4, Tokelo Khantsi, who testified that
on the night of 30th May, 1981,he was hosting a feast
of
head-diviners(mathuela) at his house at Ha Ratau in the area of
Rothe. This is confirmed by P.W.3, Ralesika Mosao, P.V.5, Moeketsi

Mokheseng, and P.W.1 Makalo Kholoane, who were present at the feast
on the night in question. According to the evidence of P.V.4,5,
3 and
1, the two accused were not only present at the feast but were
assigned with the duty of maintaining peace and order at the
feast.
The accused were armed with sticks, exhibits 1 and 2, as they went
about their duty at the feest.

Although
P.W.4, who was understandably busy with his guests, did not see the
deceased on that night, P.V.1,3 and 5 assured the Court
that the
deceased did come to the feast even if it were for a very brief
period. I see no reason to doubt them on this point. According
to the
evidence of P.W.1, 3 and 5, when they first saw him at the feast, the
deceased was having an altercation with accused 1.
The alterca­tion
resulted in a stick fight between the two men. One of the blows
delivered by the deceased landed on the head
of accused 1, who fell
to the ground. Although they were not very far from the deceased and
accused 1 as they quarrelled the witnesses
did not follow hat the
quarrel was about.

3

Now that
the deceased is no more, accused 1 is the only person who can put us
in the light. He baa decided, as it is his right to
do so, not to say
anything before this Court. The cause of his quarrel with the
deceased is, therefore, anybody's guess. If, perhaps,
he thought
accused 1 was the man who had been sleeping with his wife (P.W.2) the
deceased was, of course, wrong on the evidence
of P.W.2. Be that as
it may, the evidence of P.W.1, 3 and 5 is that after he had hit
accused 1 a blow with his stick the deceased
immediately left and
walked way in the direction towards his house which was not very far
from P.W.4's house.

According
to the evidence of P.W,3, accused 2 then snatched a torch from P.W.1
and ran after the deceased accompanied by accused
1, who had got up
from the ground. The evidence of P.W.1 is slightly different on this
point. According to P.W.1, it was accused
1 and not accused 2 who
snatched away his torch. It may be mentioned at this stage that P.W.1
has his right side eye missing. I
thought because of this abnormality
he might be making a mistake when he said it was accused 1 who took
away his torch. His testimony
was, however, confirmed by that of
P.W.5 who was standing next to him when P.W.1's torch was snatched
away. Moreover, the evidence
of P.W.1 corroborated by that of P.W.3
and 5 is that he immediately followed accused 1 demanding the return
of his torch. P.W.1
told the Court that as he left accused 1 was
joined by another person who appeared from the direction of nearby
kraals and that
other person spoke to accused 1 asking whether they
should go. He definitely recognised that other person as accused 2 by
his voice.
I am inclined to accept the evidence of P.W.1 corroborated
by that of P.W.5 that it was accused 1 who snatched away P.W.1's
torch.
Even if I were wrong on this, the important thing is that
there is overwhelming evidence that the two accused were definitely
seen
following the deceased immediately after the latter had fought
with and injured accused 1.

Now,
coming back to his evidence, P.W.1 told the Court that he was able to
follow the two accused on that dark and rainy night because
they were
each holding a flash light or torch. His torch which was held by
accused 1 had a bright light as its batteries were fresh.
The torch
held by accused 2 had somewhat dim light presumably because of its
flat batteries. The evidence of P.W.1 supported

4

by that
of P.W.3 and 5 is that there is a ridge between deceased's house and
that of P.W.4 where the feast was held. As P.W.1 was
following them,
the two accused got over that ridge before him and were for a short
while out of his view. As he approached the
top of the ridge P.W.1
could hear the sound of breaking glasses from the direction of the
deceased's house on the other side of
the ridge. When he got to the
top of the ridge P.W.1 saw the flashing of two torches in a field of
maize adjacent to deceased's
house. He vent to the spot where the
torches were flashing.As he approached closer P.V.1 could hear the
sound of repeated blows
as if something was being beaten up with
sticks. He was about 50 paces away from the two people with torches
when accused 1 flashed
him with a torch and asked "Who are you?"
He recognised him as accused 1 by his voice and the brighter light of
the torch
with which he was flashing him. In reply to accused 1's
question, P.W.1 told him who he was and demanded his torch back.
Accused
1 then said the following words or words to that effect :

"Potiane (meaning accused 2) finish quickly with this dog or
else this other dog will cause our arrest."

According
to him, P.W.1, then got frightened and thought it unwise to approach
any further. He decided to return to the place of
the feast and
immediately hurried

back. As
he approached the place of the feast P.W.1 said he was raising an
alarm by saying:

"Hey God's people here are people killing me when I demand my
torch from them".

or words
to that effect. There was no response to his alarm and he believed
that the reason for the lack of response could have
been that people
thought he had again taken ill as he had been mentally sick in the
past following food poisoning (sejeso). Back
at the feast, according
to his evidence, P,W.1 sat outside and did not report what he had
seen to anybody due to his fright. When
it was pointed out to him
that at the preparatory examination he had told the magistrate that
he did not know the reason why he
could not report to anybody, P.W.1
told the Court that he was a mentally sick person when he testified
before the magistrate. He
had since been treated

5

by a
Sesotho doctor and was cured from his illness.

P.W.2,3,4
and 5 told the Court that they lived in the same village as P.W.1
They were however not aware that p.W.1 was ever mentally
sick at any
time. I have also observed P.W.1 as he testified before this Court.
There was no indication that he was a mentally
deranged person. At
any rate he himself told the Court that as he t/ testified before
this/ he was not mentally sick. He cannot
therefore be regarded as an
incompetent witness in terms of Sec. 219 of Criminal Procedure and
Evidence Act 1981.

I must
concede that I also found it rather strange that after he had
returned to the place of the feast P.W.1 took no initiative
to report
what he wanted this Court to believe caused him great fear. It is
possible that at the time he came to the accused at
the maize field
next to deceased's house, it did not occur in P,W.1's mind that they
were beating up a human being. He only apprehended
the danger of
being assaulted by the accused from the words that accused 1 uttered,
i.e.

"....finish quickly with this dog or else this other dog will
cause our arrest."

He
therefore returned a disappointed person as he had failed to retrieve
his torch from accused 1, His story that as he returned
to the place
where the feast was held he was rasing the alarm is most probably an
exaggeration ex post facto Indeed, P.W.3 who
according to the
evidence, went to look for and net P.W.1 on his way back to the place
of the feast told the Court that he did
not hear P.W.1 raising any
alarm. I can see no good reason why P.W.3 should lie on this point
and am inclined to believe as the
truth his story that although he
appeared sad, P.W.1 was not raising any alarm as he returned to the
place of the feast. P.W.1
corroborated by P.W.5 further told the
court that towards the morning hours as he sat outside the house in
which the feast was
held, he saw accused 2 returning to the feast. He
was then holding his torch which had brighter light. P.W.1 asked
P.W.5 to get
the torch from accused 2, P.W.5 complied. P.W.1 then
left for his home.

6

The
evidence that the two accused were absent from the place of the feast
for a substential part of the night was confirmed by P.W.4
who
testified that at about midnight he had to serve food and was
expecting the two accused to assist him. They worn, however,
not
there and it was not until towards the morning that he again saw
accused 2.

Returning
now to her evidence, P.W.2 testified that when she came to her
parental home at Matukeng, she pursuaded her father to
come with her
to her home as there was a quarrel between the deceased and herself.
On arrival with her father at her home later
that same day, P.W.2
found that her house's window panes, which were in tact at the time
she ran out of the house, were broken.
Inside the house she found her
belongings disorderly scattered.

Shortly
after that P.W.2 had the occasion to go to draw water from the
village spring. On her way to the spring P.W.2 noticed the
deceased
lying prostrate in a maize field next to her house. She identified
the deceased by the clothing he was wearing as he Lay
in the maize
crop. P.W.2 hastily returned to the house and reported to her father
and a friend of the family who had just arrived
to pay a visit to the
deceased. When her father cane to where the deceased was lying, she
heard hum remarking that the deceased
was no "longer alive.
P.W.2 got frightened and immediately proceeded on her way to Morija
police station to make a report.
As it was getting late, she had to
spend the night at a certain village and continued her journey on the
following morning. Before
she came to the police station, P.W.2 met
the police officer D/Tor Talime (P.W.7) who was going in the company
of deceased's younger
brother Motlatsi Paki, (P.W.8) and another
relative. On the suggestion of P.W.7 she continued her journey to
Morija Police station
accompanied by the relative who had been going
with P.W.7 and P.W.8 while the latter continued on their way to
deceased's home

P.W.7,
the police officer who attended the scene of crime told the Court
that following a certain report, he proceeded to deceased's
home at
Ha Retau. He confirmed P.W.2's evidence that he found the window
panes of deceased's house broken and the property inside
the house
disorderly scattered. He then went to the spot where the body of the
deceased was lying in the maize field next to the
deceased's house.
He noticed that the pockets of deceased's trousers

7

turned
inside out. On examining the body itself, he noticed that it had
sustained multiple injuries on the neck , upper lip, either
side of
the temples back of the head and the lower jaws were loose.

According
to P.V.7, the deceased was already dead as his body was cold. He
ordered that the body should be carried to the nearest
bus stop. He
continued with his investigations and did not accompany the body to
the bus stop. He later attended the post mortem
examination.He did
not then notice additional injuries on the body.

In the
course of his investigations at Ha Ratau, the/ P.W.7 found that/two
accused persons were missing from their village and their
whereabouts
were not known. It was only when he returned to Morija Police Station
on 3rd June, 1981 that he found the accused already
arrested.

P.W.6,
Lt. Thamae told the Court that following a report, he proceeded to a
village called Topa in a police vehicle. He found the
body of the
deceased at a bus stop at Topa and examined it. He noticed a wound
which he thought pierced from the left lower jaw
of one side through
the wind pipe to the lower jaw of the other side; a wound on the left
ear and a wound on the upper lip. He
however did not carefully
scrutinise the injuries as he was not an expect on wounds. He carried
the body of the deceased in a police
van to Morija Hospital for post
mortem examination and it sustained no additional injuries.

Following
certain information, he proceeded to Maseru Boarder Post where he
found the two accused on 2nd June, 1981, they were still
carrying
sticks exhibits 1 and 2. Accused 1 had a fresh wound on the head just
above the eye. Accused 1 claimed to have sustained
the injury at a
"Focho" at Thibella location in Maseru Reserve. When he
asked them whether they had any money in their
possession, accused ?
said he had none. Accused 1 produced only M2.49. He then took the
accused in a police van to Maseru Police
Charge Office where he
searched them. On accused 1, P.W.6 found M22 hidden in one of the
socks he was wearing. Accused 1 also handed
over the M2.49 and P.W.6

8

took
altogether M24.49 from accused 1. When accused 2 was searched,P.W.6
found M59 also hidden in one of the socks he was wearing.
P.W.6 again
took possession of the money. The total amount of money taken from
the two accused was therefore M83.49 which was handed
in as exhibit
and marked exhibit 3. I think it is worth mentioning here that
although deceased's pockets were found turned inside
out there was no
evidence that he had been carrying any money in his possession. There
is no conclusive evidence therefore that
the M83.49 belonged to the
deceased. P.W.6 also took possession of the sticks carried by each of
the accused. They were the type
of heavy sticks commonly called
"mabetlela" normally bought from shops. They were handed in
as exhibits and marked exhibit
1 for the stick from accused 1 and
exhibit 2 for the stick from accused 2.

After
they had been searched at Maseru Police Station, the two accused were
brought to Morija Police Station where they were subsequently
charged
with the murder of the deceased.

P.W.9,
Dr. Moore, testified that he was the medical doctor who performed a
post mortem examination over the body of the deceased
on 4th June,
1981. The body was identified before him as that of the deceased by
P.W.8 Motlatsi Paki. He took notes at the time
of examination and
basing himself on those notes prepared the post mortem examination
report which he handed in as exhibit and
was marked exhibit A.
According to the medical evidence, the deceased had sustained
multiple injuries on the right forearm, left
side of the upper lip,
left ear, below left side of his jaw, under the chin, on the centre
of the scalp, on the back, and the left
side of the neck was
extremely swollen and bruised. The posterior pharynx was also
extremely swollen and completely obstracted
the airway. There was
however, no fracture of the skull. There were also multiple fractures
of the mandible. In the opinion of
P.W.9, death was due to
respiratory obstruction due to multiple fractures of lower jaw and
trauma to the floor of mouth. P.W.9
also formed the opinion that
extremely heavy blows with heavy blunt instruments such as the
sticks, exhibits 1 and 2 could have
been used to inflict the injuries
that resulted in the death of the deceased.

Considering
the evidence as a whole I am left with no doubt in my mind that after
the deceased had fought with and hit accused 1
a blow with a stick,
accused 1 assisted by accused 2 with whom he was responsible for the
maintenance of peace and order at the
feast followed him to his home.

9

The two
accused clearly had a motive to assault the deceased because of what
he had done to Accused 1 . An irresistable inference
to be drawn from
the evidence as a whole is that the two accused, acting in concert,
in fact caught up with and brutally assaulted
the deceased with the
sticks, exhibits 1 and 2, from his house up to the spot in the maize
field next to his house where P.W.1
saw them flashing torches and
where the body of the deceased was indeed later found. The inference
is strengthened by accused's
failure to give any evidence in their
defence.

It has
been argued before me that even if the court accepts the evidence
that the two accused were seen beating up the deceased
in the maize
crop next to his house, there is no evidence that the deceased was
still alive at the time. They may as well have
been beating up an
already dead body of the deceased. In that event, it could not be
pro­perly inferred that the deceased died
as a result of injuries
caused by the accused. There is no evidential basis for such
hypothetical argument. All that the evidence
indicates is that the
accused must have caught up with the deceased and brutally assaulted
him thus inflicting upon him the injuries
that, according to the
medical evidence, ended up in the loss of his life. I have no
hesitation in rejecting the argument.

The only
question for consideration by the Court is whether the prosecution
evidence has successfully proved beyond a reasonable
doubt that when
they assaulted and inflicted upon the deceased the injuries that
caused his death the accused had the requisite
subjective intention
to kill. It is trite law that intention is not something that can be
reached by any of our senses. It is a
matter to be inferred from
either the words or the acts of the accused person. In the instant
case, there is evidence which this
court has accepted shoving that
the two accused have brutally assaulted the deceased on the upper
part of his body. As a result
of the assault the deceased sustained
multiple injuries including fractures of his lower jaw and trauma to
floor of mouth. The
result was the obstraction of deceased's
respiratory system and subsequent loss of his life. Any reasonable
person in the position
of the accused who brutally assaults and
inflicts serious injuries on the head

10

of
another person must realise that death Is likely to result. The
accused were likewise aware that their brutal assault on the
deceased
was likely to result in death but regardless of whether or not death
resulted, carried out their assault and the deceased
lost his life.
In the premises I come to the conclusion that the question whether
the prosecution evidence has established, beyond
a reasonable doubt,
the accuseds's intention to kill must be answered in favour of the
crown.

The
accused are accordingly found guilty of murder as charged.

My
assessors agree.

B.K.
MOLAI

JUDGE

21st
December, 1982.

For the
Crown : Miss Moruthane,

For the
Defendents : Mr. Matlhare.

11

CRI/T/5/82

EXTENUATING
CIRCUMSTANCES

The two
accused have already been found guilty of the murder of the deceased,
Hlabeli Paki. The question that remains for the consideration
of this
Court is whether the verdict should be one of guilty of murder with
or without extenuating circumstances.

In the
first place, the Court is indebted to both counsel for their able
addresses in this regard.

I think
it is by now trite law that any fact associated with the crime which
serves to diminish the moral blameuorthi-ness of accused
person for
his deed, must be taken into account in the consideration for the
existence of extenuating circumstances.

In the
instant case there is evidence that there was beer drinking at the
feast on the night in question and that the accused are
people who
normally drink beer. Although there is no evidence that the accused
were actually seen drinking, one thing certain is
that they were
assigned important duty of seeing to it that the feast proceeded in a
peaceful and orderly fashion. It may not be
beyond imagination that
the accused as important figures at the feast were offered and had
taken some beer as they went about their
duty. That granted, it may
perhaps serve as some explanation for accused's somewhat overreaction
after the deceased had arrived
at the feast and had an altercation
with accused 1.

There is
also evidence which was adduced by the Crown and accepted by the
Court that the deceased assaulted or was apparently the
first to
assault accused 1 who was admittedly going about his lawful duty at
the feast. That was provocation on the part of the
deceased. This
provocation could not, however, in law serve as a factor reducing
murder to culpable homicide regard being had to
the distance which
the accused travelled from the place where the feast was held to
deceased's house where according to the evidence
accepted by the
Court the accused finally caught up with and fatally

12

assaulted
the deceased. Nevertheless the Court Is perfectly entitled to
consider the existence of this provocation for purposes
of
extenuating circumstances.

I hold
the view that there are extenuating circumstances and the question
whether or not the verdict should be one of guilty with
extenuating
circumstances must, therefore, be answered in the affirmative.

My
assessors agree.

SENTENCE
:

Each of
the two accused is sentenced to six (6) years imprisonment.

B.K.
MOLAI.

JUDGE

22nd
December, 1982.

For the
Crown : Miss Moruthane.

For the
Defendents : Mr. Matlhare,