Mokhethi v R (C OF A )

Media Neutral Citation: 
[2010] LSCA 6
Judgment Date: 
23 April, 2010


C OF A (CRI) NO.20/09


In the matter between:










Criminal Law – High Court convicting appellant of murder – evidence establishing that appellant had both the motive and opportunity to commit the crime. Further, appellant admitted having killed the deceased and handed the weapon which he had used to the police. Appellant’s evidence properly rejected by High Court. Appeal accordingly dismissed.



[1] The appellant and Phamotse Simon Mosala (A1 and A2 respectively in the Court a quo), were indicted in the High Court on a charge of murdering Phakiso Mpota (the deceased) on 25 October 2007 at or near Ha Sethuamajoe. They appeared before Mosito AJ and assessors and pleaded not guilty. At the end of the trial A2 was acquitted but the appellant was convicted and, after a finding that extenuating circumstances existed, was sentenced to fifteen years imprisonment. This is an appeal against his conviction.

[2] The evidence shows that the deceased died on 22 October 2007 and not on 25 October but nothing terms on this minor discrepancy. The fact that the deceased was brutally murdered admits of no doubt. His body was found in a shallow grave at a place called Mphatsoenyane. He had sustained severe head injuries – fractures of the occipital and right temporal bones – and his throat had been cut. These injuries caused his death.

[3] During his lifetime the deceased was employed by PW1 as a shepherd. On 11 June 2007 PW1 ascertained that three of her sheep had been stolen. She suspected that the appellant was involved in the theft and instructed the deceased to find out from him what had happened to her livestock and to attempt to secure their return. The deceased ostensibly attempted to carry out these instructions on Saturday 21 October 2007 and again on the following day but on each occasion he returned without the sheep. The deceased made a third excursion, at about midnight on the same Sunday (22 October), this time accompanied by PW1’s two sons. On this occasion the two boys returned but the deceased did not. On the Monday PW1 went to search for the deceased at Mphatsoenyane, which is a cattle post area, but was unable to find him. She repeated this exercise on the following day, again without success. She reported the deceased’s disappearance to her chief who sent her to the appellant’s headman at Ha Sethuamajoe. After the matter had been reported to the headman, he called for the appellant and his father and asked the appellant to explain what he knew about the deceased’s disappearance. The appellant replied that he had not seen the deceased for a long time but that he had heard that he (the deceased) had been looking for him.

[4] On the following day, Wednesday 25 October, PW1 was again present at Mphatsoenyane. PW3, who had earlier been apprehended by certain men on the chief’s instructions, was also there. After a while the police arrived and PW3 pointed out the site of a grave to them. PW3 then exhumed the deceased’s body from the grave and the body was removed by the police to the mortuary.

[5] I consider it prudent to consider the evidence of PW1 without reference to the reports made to her by the deceased. All that needs to be said at this stage is that PW1 gave him instructions to approach the appellant with a view to finding out what had happened to her sheep. That the deceased had at least intended to do so is apparent from the appellant’s response given to the headman. The deceased’s intention is also supported by the fact that on the final occasion he went out at an unusually late hour. And the matter does not end there because, according to the evidence of PW3, he and the appellant had indeed stolen PW1’s sheep. The appellant knew that the deceased suspected that he was the thief, obviously because of what the deceased had told him, and he in turn told PW3 that the deceased should be killed. On the Monday (23 October) the appellant informed PW3 that he and A2 had indeed killed the deceased.

[6] PW3 was apparently initially prepared to associate himself with the appellant in the killing but he later changed his mind. He knew where the deceased and been buried, however, because, on his testimony, the appellant had given him this information. He subsequently pointed out this spot to members of the anti-stock theft association and the deceased’s body was exhumed at that place.

[7] PW2’s evidence is also of considerable importance. He is the appellant’s brother and he told the trial Court that the appellant was in the company of the deceased on the Sunday (22 October); that the appellant and the deceased went up into the mountains; that they were followed by PW3 and a certain Mojalefa; and that at a later stage the appellant, PW3 and Mojalefa returned to where he (PW2) was but that the deceased was not with them. This evidence was substantially corroborated by PW3 who testified that the deceased did not return with the other three because he was tired. It should be observed, however, that the deceased was not killed on that occasion. The four people went up into the mountain during the day and it was at midnight that the deceased left PW1’s home for the last time.

[8] The significance of the evidence concerning the events on the Sunday must be seen in relation to the appellant’s denial that he was in the company of the deceased on that day as, according to his own version, he was at the initiation school. PW2 also testified that on the Sunday night he and the appellant had slept in the same house and that he woke up during the night and discovered that the appellant was not there. His evidence in this particular respect was not accepted by the trial Court and I will not deal further with it. It is, however, of some importance concerning questions that were put to PW2 in cross-examination in respect of the appellant’s version. This will be adverted to later.

[9] The further Crown evidence that I find to be relevant in relation to the guilt of the appellant was given by PW4, Trooper Mahase Tahleho. He was stationed at the Semonkong police station and had been in the police service for fifteen years. On Thursday (26 October) the appellant arrived at the police station and told PW4 that he had come to hand himself in as he and A2 had killed the deceased and had buried him. The appellant gave PW4 an Okapi knife which he said was used in the killing.

[10] The appellant and A2 also gave evidence. It is only with the former that I am now concerned. The appellant’s evidence amounted to a denial of almost all the Crown evidence. He denied the crucial evidence of PW2, confirmed by PW3, that he was with the deceased on the Sunday. He denied that he had stolen PW1’s sheep or that he had admitted to PW3 and PW4 that he had killed the deceased. He claimed that on the Sunday he had been at the initiation school with PW2 and others. Although he testified that he had not slept in the same house as PW2 on the Sunday night, his counsel put it to PW2 that when the witness had looked for the appellant that night, he (the appellant) was not there because he had gone out to look for some cattle. This amounts to an admission that the appellant did not spend the whole night at home. He explained that when he went to the police station it was to seek protection from the anti-stock theft unit and not to surrender himself, but he admitted that he handed the Okapi knife to PW4. He denied saying that the knife was used to kill the deceased.

[11] The appellant’s evidence that he did not kill the deceased was rejected by the Court a quo and rightly so. He clearly had a motive to kill the deceased. There is no doubt that he knew that the deceased wanted to ask him about PW1’s sheep that had been stolen. It is quite obvious, too, that he arranged to meet the deceased at midnight at Mphatsoenyane. There is no reason for the deceased to have ventured out at midnight other than to carry out the wishes of PW1, his employee. The fact that the appellant conceded that he was not at home for the entire Sunday night shows that he had the opportunity to murder the deceased: both the alleged assailant and his intended victim were out of their respective homes on the same night. The evidence of PW3 now requires some attention.

[12] The learned judge a quo correctly held that PW3 was an accomplice as he had conspired with the appellant to kill the deceased. The trial Court’s finding that PW3 might have had a greater involvement in implementing the conspiracy than he admitted to, is not without merit. The Court a quo was, however, alive to the danger of convicting the appellant on the uncorroborated evidence of PW3. The witness candidly admitted that he and the appellant had stolen the sheep and his evidence in this regard has the ring of truth. Moreover PW3’s evidence that the appellant admitted having killed the deceased was confirmed by the evidence of PW4. The appellant’s motive for killing the deceased and the opportunity which he had to commit the crime also receive confirmation from PW1’s testimony. These factors, coupled with the credibility findings of the Court a quo are sufficient justification for accepting PW3’s evidence at least to the extent that he implicated the appellant.

[13] The appellant was also at pains to distance himself from the deceased. His denial that he was with the deceased on the Sunday was palpably false. The evidence of PW2 was obviously true. After all he was the appellant’s brother, he had no reason to give false evidence against the appellant and his evidence as to the events on the Sunday was confirmed by PW3. PW2 and, I may add, PW1, were both regarded by the High Court as reliable and credible witnesses in all respects.

[14] Counsel for the appellants said very little to persuade me that the trial Court had erred in accepting the Crown evidence above that of the appellant. On the contrary, the evidence of the appellant was so improbable that it could not reasonably possibly be true.

[15] The appellant’s counsel argued that there was no evidence of a conspiracy between the appellant and PW3 and there was no aliunde evidence to prove its existence. Moreover he submitted, as I understood his argument, that the finding of such a conspiracy was inconsistent with the court’s conclusion that he and A2 had acted with the common purpose to kill the deceased. The acquittal of A2 and the absence of a common purpose between the two accused has nothing to do with the appellant’s guilt or innocence, nor was any evidence aliunde needed to prove the existence of the conspiracy. Furthermore the alleged inconsistency relied upon by counsel is non-existent.

[16] I have come to the conclusion, on a conspectus of all the evidence, that the Crown has established the guilt of the appellant beyond reasonable doubt.

[17] It is therefore ordered that the appeal be dismissed and the conviction and sentence confirmed.



Justice of Appeal

I agree ________________________


President of the Court of Appeal

I agree _________________________

J W SMALBERGER Justice of Appeal

For the Appellant : Adv. C J. Lephuthing

For the Respondent : Adv. P. Sealiete and Adv. T. Mokitimi