IN THE HIGH COURT OF LESOTHO
In the matter between:
HOPOLANG SELLO MOSOEU
Delivered by the Hon. Mr. Justice G. N. Mofolo On the 18th day of November, 2003
Delivery of judgment was delayed in this matter and others owing to the fact that for a number of months up to and including 26/08/03 the court was engaged in a marathon case.
The accused in the instant case was charged with murder it being alleged that:
'— upon or about the 27th December, 1996 and at or near Mashai (Ma-Cross Cattle Post) in the district of Thaba-Tseka the said accused did unlawfully and intentionally kill one Lekhqfola Motlomelo.
The accused had 1steaded not guilty to the charge. P.W.I Tholang Mohlouoa Mafole sworn had stated he lived at Solane, Thaba-Tseka, Mashai and he was literate. He knew accused before court and his means of knowing him was that they resided together in the same village. He had known deceased in his lifetime after whose cattle he herded and stayed at his home.
He knew events leading to his death. Then he was present at the cattlepost of' Malekhafola Motlomelo. 'Malekhafola was deceased's mother. Deceased arriving from the mines had gone to the cattlepost in the morning hours to count his flock of sheep. He had said he would go to the cattle post first and return to the flock. Accused had arrived asking me the whereabouts of his flock. As for deceased he had said he had gone to his cattle. Accused had pipped through the door of the cattlepost asking if he was consuming meat and accused had gone after deceased. Accused had not found meat in the hut When accused got to deceased he says he was at the cattlepost and from where he was could see the deceased and accused. He says he knows Victoria Hotel and the distance between where he was and accused and deceased could be as far as Victoria Hotel and the distance is estimated to be 1.5 km - 2 km. It was in the morning and cloudless. Accused and deceased had thrown stones at each other. Accused and deceased had quarrelled but he had not heard what the quarrel was about. In throwing stones accused and deceased were close to each other being about 10 metres apart. They had then advanced to each other carrying sticks. Accused had assaulted deceased but he had not seen with what accused assaulted deceased
though in arriving at the cattlepost accused was carrying a stick. Deceased also carried a stick. As deceased was assaulted, he fell and he had seen accused belabour deceased with a stick. Accused had stopped the assault but returned to deceased and started belabouring him. When accused returned to deceased, the latter was lying prostrate on the ground unable to rise. Accused had then said: I wanted to kill you. Accused had then shouted at Morabaraba at the latter's cattlepost. He says Morabaraba's cattlepost from where he is is as far as Victoria Hotel. Accused having called out to Morabaraba the latter had gone to where accused and deceased were and he was still at the cattlepost Accused and Morabaraba had merely stood aside for about one hour doing nothing. Accused had then shouted to him to say he was to come where they were and he had done so. Accused had then said to him he was to go home to report to 'Malekhafola to collect the victim because the victim made him unable to count his flock. He had gone home but at the time accused spoke with him he saw deceased lying down blood covering his face though he had not had a close look. He had found 'Malekhafola and together with other people had gone to where deceased was. Accused had been carried away to Mokhotlong mortuary. He says he knows how long an hour is. He says the time Morabaraba and accused stood by and the time he has been giving evidence could be the same. Ms. Mofilikoane says the witness has been giving evidence for 45 minutes. He says accused and Morabaraba were doing nothing. As he was young, he could not intervene though as he does not know when he was born he can't say how young he was then.
Cross-examined by Mr. Maieane the witness says he does remember making a statement to the police and he had thumb-printed the statement which was read back to him and he had fixed his thumb on it. He had told the court where he was and where accused and deceased were. Owing to the distance he had not heard what accused or deceased said. Though he had not heard all, he saw the killing. He says he told the police he heard accused say he wanted to kill deceased. He also agrees he told the police they were far and he did not hear the communication. He denies what he is telling the court is an afterthought and concoction of the truth. He says he was deceased's herdboy and deceased was responsible for his upbringing. He agrees he liked deceased and could protect him as token of his care for him though if he did something wrong he would not protect him. That accused will say deceased followed him he denies and also denies he is the only one who says accused followed deceased. The witness has denied he covers deceased's misdeeds. He says in the stone throwing episode it's accused who started throwing stones. He had also seen accused and deceased exchange blows at close quarters. The witness has said accused started the fighting. The witness has said accused followed deceased from the cattlepost. The witness says while staying at the cattlepost he was not an infant but a grown up. The witness has testified his indifference to the fighting was because he was afraid to go to where fighting was taking 1stace and not because he knew deceased to be on the wrong. The witness had denied accused delivered the fatal blow to defend himself because it was accused's intention to kill deceased as when accused belaboured deceased where he had fallen. The witness has
testified accused went to the cattlepost to fight because on arrival accused had asked him where his small stock is and he had denied knowledge thereof.
By Court the witness has said deceased did not stay at the cattlepost for he was in the mines and had come to the cattle-post to count stock. He herded sheep and they were so many he could not count them. Cattle were also so many he could not count them either. The flock and herd was 'Malekhafola's. There was no strange flock in his animals. He thinks accused was older and stronger than deceased.
P. W.2 Morabaraba Thola's evidence under oath had been that he resided at the cattlepost at Mokoros's, Mashai, Thaba-Tseka. He was literate and 46 years old. He knew accused before court and his means of knowing him was that their cattleposts were near to each other. Accused's home was at Seeiso's and they were far apart. He knew deceased in his lifetime by reason of grazing in the same area and he also knew where deceased resided. He recalled events of deceased's death and on the day he was at the cattlepost. He had been called by accused while he was in the veldt and he had responded to the call. Accused had then told him he had assaulted a person, according to the witness, the assaulted person was beside the accused seated with him legs stretched out. He knew the person who was bloodstained and bleeding from his head alive but speechless.
He had done nothing and accused did nothing to the person lying on the ground. He had called deceased's herdboy to go and report home that is, P.W. 1. When P. W. 1 came accused had said: 'I have assaulted deceased, go home and report. ' When P.W.I left both him and accused had also left for respective cattleposts leaving deceased behind. Apart from accused, himself, P.W.I and deceased there were no other people. Accused was from home and his herdboy stayed at the cattlepost. Accused had said he was looking for his sheep. Accused and deceased were carrying sticks and deceased's stick was lying next to him.
Cross-examined by Mr. Maieane the witness agreed he had made a statement to the police in Januaiy, 1997 and then facts were fresher in his mind than they were now and he had said accused apart from saying he looked for his sheep he had said nothing else. That to the police he had said accused told him something about the fighting the witness says he could have though he could have forgotten this by reason of passage of time. He had affixed his thumb-print on the statement The witness has said the accused had said deceased fought him and he fought back. He says he remembers accused saying this. Apart from what accused told him he had not witnessed the fighting.
Mr. Maieane had then admitted the statement of identifying witnesses Masite Mafola, Seelane Motlomelo and Makhafolo Motlomelo respectively and the statements had been read into the record. Because of the absence of crown witnesses the matter had been on 10 May, 01 postponed to 14 November, 01.
On 14 November, '01 the crown had called P.W.3 Clement Tsebo Tauoa No. 6323 who sworn had stated he was a member of LMPS stationed at Marakabei police station and remembered December, 1996 when he worked at Mashai, Thaba-Tseka. He recalled where he was on 22 December, 1996 being at work at Mashai police station and it was about 3 p.m. Accused had then given him a report. He had cautioned and charged accused. He had arrested accused and kept him in custody. The stick he gave him was before court which is a smooth 'lebetlela' stick with 5 x rings. Accused having given him the stick he had kept it in police custody. He had taken the stick to Thaba-Tseka magistrate's court where it was entered into court's records and he was handing it in as an exhibit. The stick was marked Exh. 1.
Cross-examined by Mr. Maieane the witness had testified apart from accused's report he had no knowledge of the case.
The post-mortem report had been handed in by consent and read into the record and marked ExkA.
The Crown having closed its case the defence had called D.W.I Sello Julius Mosoeu who sworn had stated Hopolang was his nickname. On the day in question he had left his home in the morning to look for his lost sheep after his son had reported 3 sheep were missing. He had gone to 'Malekhafola's
cattlepost and asked P. W. 1 about the sheep but he had denied their knowledge. He had gone past where Morabaraba (P.W.2) stays and walking up a meadow Lekhafola (deceased) had called him asking what he wanted at the cattlepost and he had said he was looking for his three missing sheep. He had asked the witness as to whether the 1stace was where he herded his sheep and he had not replied. Then Lekhafola had said: ' Stop where you are I want to assault you, I have found you today.' He says he did not stop and he fled for fear he was going to be assaulted. He thought deceased had a gun on him. Lekhafola was so angry it seemed he had a gun besides he was from Gaudeng mines. He ran up the meadow until he reached Morabaraba's cattlepost where deceased caught up with him and caught hold of him at 'Mamotoloane's cattlepost. Deceased struck him with a stone on the right shoulder and also struck him with a stick and he had parried the blow, struck at deceased and hit him on the head. He says he does not know why deceased did not fend off the blow for he is not that skillful in stick 1staying. He says he struck at deceased in self-defence. He says he had tried to flee but accused had caught up with him.
Accused says he struck deceased the first time and he did not fall and fell on the second blow. He had then left to call Morabaraba (P.W.2) and Mohlouoa (P.W. 1) and had said P.W.2 was to ask deceased why he was chasing him what had he done. When P.W.I came he had sent him home to tell 'Malekhafola deceased was chasing him and he had caused some injuries. P.W.I had gone home returning with some people. P.W.2 had asked deceased but he had not
replied. He says deceased having fallen did arise. He says deceased walked towards the river unassisted. He had gone home and saw people take deceased to a doctor. He says the incident happened on 26/12/96 though he does not remember day of the week. He reported himself at Sehong-hong police on 27/12/96 and prior to reporting himself to police had reported himself to the chief of Mashai Jonathan Monyane. He had not been arrested by police and did not intend the unfortunate incident nor had he contemplated it.
Cross-examined accused has said at deceased's cattlepost one can see 'Mamotoloane's cattlepost though the cattlepost is removed. He says when deceased called him he was going to Monyooe's cattlepost though before you get there you go past 'Mamotoloane's cattlepost and then he was going past 'Mamotoloane's cattlepost coming towards deceased sideways and they were going to meet at 'Mamotoloane's where deceased caught up with him. He was coming up the meadow and deceased was above the valley. Accused says P. W. 1 was at deceased's cattlepost and could see what was happening much as it was at a distance being from the court to Mokorotlo hat (about 2-3 kilometres away).
Accused has said at the time of fighting he was not aware somebody could have seen them. After the fighting he noticed some people were watching them and P.W. 1 was one of them. He denies that as P.W. 1 said he was the first to strike a blow and he denies he struck deceased more than two times. He says P. W. 1 is lying the reason being that he works for deceased and grew up at
deceased's. The accused has testified at the time of fighting Morabaraba was at his cattlepost. Morabaraba could not see the fighting for he was out of view though he could hear if he shouted. After deceased fell he had called out to Morabaraba. He says he did not go out to call Morabaraba but gave a shout He agrees as Morabaraba said that after assaulting deceased he left him where he was. The witness says him and Morabaraba assisted deceased by making him seated until he came to his senses. He agrees he did not say he assisted deceased in his evidence-in-chief. He disagrees that this is an afterthought save that he omitted to mention that he assisted deceased. That Morabaraba had not told the court they assisted deceased and made him seated he says they left deceased after he gained consciousness. The witness says when villagers arrived they were angry and he could have been killed. He maintains deceased attacked him. The villagers had torched his residential home. He says P. W. 1 is not telling the truth that he said he wanted to kill deceased. He denies he said to P. W. 1 'Malekhafola was to collect the victim. He says villagers invaded him and destroyed everything he had. That he left deceased prostrate because he intended to kill him he denies. He says the deceased was the aggressor. He agrees he did not deny P.W. 1 was watching him though not everything P.W. 1 has said is true.
Re-examined he says deceased chased him for he was in front. By court the accused says he did not speak to deceased and he did not have letter of search.
When, on 14 November, 2001 the trial had been postponed and on 13 November, 2002 when the trial resumed it was claimed the record of proceedings was untraceable and the court had ordered that a transcript be made available. The transcript has not been made available to court to date probably because the record was recovered.
On 13 November, 2002 the defence had called D.W.2 Remaketse Chaka who sworn had stated he was aware of why he was before court and was aware accused was charged of murder of Lekhafola Motlomelo. He had witnessed the events while at his cattlepost. He had heard Lekhafola shout to his herdboy saying: 'who is that one from my cattlepost' and the reply had been it is father Sello namely, accused. Tholang was P.W. 1 and deceased had said to accused: 'what do you want at my cattlepost' and accused had said: I am looking for my sheep and deceased had said: 'you are bringing me 'monyakane' (sheep sickness) this will make me buy a second wife .' When deceased said wait accused, the latter, had fled. He says he could hear what both accused and deceased said. He says deceased chased accused and hit the latter with a stone. Fighting had started and accused struck deceased with stick and deceased fell. D.W.2 says when deceased fell accused belaboured him. He also says deceased rose walking dizzily down the incline.
Cross-examined the witness has agreed some of the things he told the court he had not told the police and the reason was some of these may have escaped his
mind; as to the fact that the accused had not said deceased insulted him, the witness maintained this is what he heard. He also says after deceased was knocked down he rose and accused is not telling the truth that deceased did not rise.
In re-examination the witness has said his statement was not read back to him and since the statement was not verified certain things he has said could well not have appeared in his statement.
After this witness the defence had closed its case.
Facts of this case are that on the fateful day accused had gone out looking for his lost sheep. In course of this search he had gone to deceased's cattlepost and there finding P.W. 1 had asked him the whereabouts of deceased and P.W. 1 said he had gone to his cattle. As for accused's sheep P.W.I had denied knowledge of them and accused's search for meat had yielded nothing. It is of significance that when accused came to deceased's cattlepost, deceased had left the cattlepost having gone to the cattle. P.W. l's evidence had been that accused asked him if he was consuming meat; not only this, accused had not found meat but followed after deceased. I am therefore satisfied that in search of his lost sheep accused had followed deceased.
Question is; why did accused go after deceased? The answer is because
accused was looking for his sheep. There were no restrictions on accused as to where and from whom to inquire about the loss of his sheep. It is not far-fetched to say where animals are lost, often in this country because stock theft is rife, fatalities follow. Deceased had not lost stock, he was arriving from the mines having gone to the cattlepost to count his stock. According to P.W. 1, accused's mother's sheep were so many he had lost count and so were the cattle. For what reason would deceased chase and come to blows with accused? On the contrary, if accused was suspicious he would lose his cool. P.W.l's evidence was that accused asked him the whereabouts of his flock and as to where deceased had gone. Accused pipped through the door of the cattlepost hut and asked if P. W. 1 was consuming meat and accused followed deceased. There can be no doubt that accused was highly suspicious of P.W. 1 and the deceased no wonder coming to deceased he asked the latter about his lost sheep. I fail to understand how, on deceased being asked about the sheep, he would want to fight accused. Of course if the approach is skewed or impolite or suggests that a person from whom an inquiry is directed is a suspect or thief nor can I rule out the fact that a person from whom an inquiry is directed can take exception to the inquiry.
P.W. 1 's evidence has been that accused was the aggressor and responsible for deceased's death and that in the struggle that ensured accused was not defending himself but had the intention to kill deceased.P.W.2's evidence is no different and in my view corroborates that of P.W. 1 in material respects. It has been said P.W. 1 took sides by reason of standing in loco parentis to the deceased
and in any event P. W. 1 was deceased's herdboy and shepherd. This could well be though I have taken note of P.W.1's evidence that whatever the relationship between himself and deceased, if the latter is out of step he would not defend him. P. W. 1 's evidence also read well and he stood cross-examination admirably.
Has to be recalled that P.W.2 was called by accused to the scene and as accused has said, P.W.2's and his cattlepost were neighbouring. If what P.W. 1 has testified to was motivated by P.W. l's relationship with deceased, what, then is the motivation for P.W.2 testifying against accused? I can see none save that P.W. 1 and P.W.2 were telling the truth afterall, it was P.W. l's evidence that he was at a vintage point with a bird's eye-view of what took 1stace below between accused and deceased; besides, it was accused's evidence that after the fighting he noticed some people were watching them and P.W. 1 was one of them.
Indeed it was P. W.2's evidence that accused had called him to the scene of crime and there he had found deceased beside the accused seated with his legs outstretched, bloodstained and bleeding from his head though alive but speechless; further, neither him or accused had done anything to the person lying on the ground. According to P.W.2 accused had said he has assaulted a person and after P.W. 1 was sent home to report both P.W.2 and accused had gone to their respective cattleposts leaving the deceased behind and apart from accused, the witness, P.W.I and deceased there were no other people. It is also noteworthy that accused did not say to P.W.2 that injuries on deceased were
occasioned by accused defending himself against the deceased, though cross-examined by the defence the witness had said accused had said deceased attacked him and he fought back.
I have found accused's evidence rather extraordinary with its hyperboles and exaggerations. It was accused's evidence that the deceased had said to him; 'stop where you are, I want to assault you, I have found you today' and accused had fled. Problem with this is that it is not deceased but accused who had lost stock and deceased had no reason to behave as is claimed and it is not deceased who went after accused.
If this is what deceased said to accused, why was it not put to Crown witnesses and particularly P.W. 1 who seemed within ear-shot? In his evidence D. W.2 said nothing of the sort. And then there is this business of accused telling P.W.I he was to inform 'Malekhafola deceased was chasing him; P.W.l's evidence was, on the contrary, that he was sent by accused to ask 'Malekhafola to collect her victim because the victim made him unable to count his flock. If indeed this is what accused told P. W. 1, it it something that should have been put to P.W.I but wasn't. The same goes for P.W.2 for his evidence says nothing about accused having told him deceased chased him. In his evidence P.W.2 testified accused had said to P. W. 1:I have assaulted deceased, go home to report P.W. 1 says this is all that accused said. If it is true that accused spoke to P. W.2 about deceased chasing him, at least this should have been put to P.W.2.
As for D. W.2's evidence, it would seem like P.W. 1 he was sitting on higher ground and witnessed the fighting from a vintage point. According to D.W.2 deceased insulted and chased accused. But it was not accused's evidence that deceased insulted him. As I have said above, it was accused evidence that deceased had said to him: 'stop where you are, I want to assault you, I have found you today.' On the contrary, D.W.2's evidence had been that deceased had said: 'You start bringing me 'monyakane' (sickness which kills sheep) and something like I will buy a second wife . ' Quite clearly therefore, accused's and D. W.2's evidence is conflicting in material respects and the court while believing Crown evidence, has rejected the defence evidence as untrue.
As to accused's claim that he was defending himself, I am aware of no eminent threat to accused's life after accused knocked the deceased down. After the deceased was knocked down the accused should have immediately desisted from assaulting deceased but crown evidence was that after deceased fell accused belaboured him. I reject accused's notion of self-defence with the contempt it deserves.
As to intention, by belabouring deceased even when he had fallen, striking deceased on a vital part of the body and causing numerous fractures of the skull, depressed fracture in the left temporal region and a large extra-dural haematoma as the doctor has shown in the post-mortem report, accused had the intention to
kill deceased. By belabouring deceased even when he had fallen, accused was aware fatal consequences would result but persisted in his conduct regardless of the consequences.
In the result, the crown having proved its case beyond reasonable doubt, the accused is found guilty of murder as charged.
Although my remaining assessor Mr. Leboela is now late, before his passing away he agreed with me as to the conviction
My Assessors agree.
G. N. MOFOLO
For the Crown: Ms Mofilikoane
For the Defence: Mr. Maieane
Both the Crown and the defence agree that this is a case of dolus eventualis. Besides, stock theft is so rife in the country; owners of stock have become so befuddled, or with considerable loss of control, some are no longer able to distinguish between real thieves and the innocent. Accused but for his loss of control which in any event did not negative his intention to kill, never canvassed or for that matter premeditated deceased's death and for this reason and the fact that the case is one of dolus eventualis as both the Crown and defence have submitted, I do agree that there are extenuating circumstances.
In mitigation it has been submitted accused works in the mines and is likely to lose his job; he has 8 minor children, all school-going and a wife; supports an elderly mother and dolus eventualis is also a mitigating factor, accused as a result of killing deceased his home has torched and he had lost everything he has.
The court has considered above mitigating circumstances and the fact that the prisoner is claimed to be first offender. However, this was a grubbily case of murder and the left of a young man with a very bright future has been whisked and permanently removed for no good reason.
The court having considered the mitigating circumstances has deceased the
least sentence to be imposed is 7 years imprisonment and accordingly the court sentences accused to 7 years imprisonment.
My Assessors agree
G. N. MOFOLO
For Crown: Ms. Mofilikane
For Defence: Mr. Maieane