IN THE HIGH COURT OF LESOTHO
In the matter between:-
MATOBO & OTHERS
Delivered by the Honourable Mrs. K.J. Guni on the 25th March, 2003
The four accused are charged with the crime of murder of their own chief - BERENG THEKO. The indictment reads as follows:
"That the accused are guilty of the crime of murder in that or about the 26th day of June 1992, and at or near LITS' ANENG in the district of MASERU, the said accused did each or the other or all of them unlawfully and intentionally kill one BERENG THEKO ".
All the accused has pleaded NOT GUILTY to this charge. Each and every one of them totally deny any involvement whatsoever in the
commission of the alleged offence. In addition A1-MATHEANT0A MATOBO, has pleaded an ALIBI. He claims that on the day the alleged offence was committed at LITS'ANENG, he was here in MASERU, where he had come to purchase stock for his groceries shop. He was travelling by bus, which on that day waited for miners from RSA. These miners had been delayed and the bus, which Al was travelling, waited until the border between LESOTHO and RSA was closed, which was at that time 8 or (10p.m.) ten o'clock at night. He is not sure of the exact time.
All the accused persons in this matter reside in the same village. They are all related by blood or affinity. It is an established fact that there was bad blood between the late chief and his subjects amongst them, these accused persons. Sometime in the past, the late chief- using his messengers, tried to empound the animals belonging to some of these accused when those animals were trespassing on reserved pasture. It seems the seizure of those animals was thwarted by owners and/or their herdboys. The litigation to resolved that problem of resisting the seizure of the animals for empoundment was instituted in the area's local court. A2 claimed before this court that it was his herdboy who was sued because he was the one who
resided the seizure of the animals. At other times when the late chief had called a "Pitso" the discussion of the subject matter thereof became heated and disorderly. In the end he had to order the people to dispense because the debate had degenerated into shouts and hurling of insults. At one time the disagreement at one Pitso got so bad that some of the villagers including some of these accused persons and crown witness - MPHO MOEKETSI, went to the PRINCIPAL CHIEF of the Area to ask him to intervene. The accused acknowledged that there was such a dispute between their chief and themselves, including other villagers and not just themselves.
It would appear that the late chiefs arrogance drove him directly into collision with his subjects. According to MPHO MOEKETSFs evidence the late chief was disrespectful of his people. He insulted them as a matter of cause. On this point of arrogance by the late chief, MPHO MOEKETSI's evidence is supported in material respects by the evidence of the late chiefs mistress DW5 'MALISEMELO MAKAFANE. She is the last person who was seen in the company of the late chief alive. She was travelling with the late chief from the village of HA CHALALISA where they had gone as part of the Land Development Committee to resolve the land dispute and headmanship
over the said village, that had arisen between RAMATHALEA SEKOATI and MAHLOMOLA CHALALISA.
According to PW2, who is the father of Accused 3-Folepe Mapota Makafane and the uncle of Khobatha Makafane-A4, the late chief was involved in an illicit love affair with DW5-'MALISEMELO MAKAFANE. In June 1992 when the chief died, the love affair between him and DW5 had been going on for three years according to the observation of PW2. The period of the duration of this illicit love affair was confirmed by none other than the participant in the said affair - 'MALISEMELO MAKAFANE herself.
The deceased was treating her as though she was his wife to the disgust and the annoyance of her in-laws in particular A4 and PW2 amongst others. PW2 took steps to stop the continuation of this notorious love affair between his chief and his son's wife. I deliberately describe DW5's husband as PW2's son because in Sesotho custom he is his son because PW2 and DW5's husband's father are brothers. It was appropriate for PW2 to take steps to stop that bad behaviour. He is not just expected to take such steps, infact SESOTHO custom demands that as the head of the extended family he
should guard jealously their family name and reputation. There is a duty place on the elders of the family to protect its good name.
According to PW2, he called the two families (i.e. his family and that of DW5) to try and reprimant DW5 to decease from committing the alleged matrimonial offence. The late chief had also been invited to those two families meeting. DW5 denies that there was ever such a meeting. She should, because their affair continued unabated. She claims that she was oblivious to their notoriety as a result of their bad behaviour with her lover. The late chiefs paramour-DW5 although boasting publicly of her love for him, she has some unkind words for her lover. She testified how arrogantly the late chief demonstrated his power and its abuse over his subjects. She was asked to draw his attention to a discontent of one of the litigants in the dispute they had had just resolved at HA CHALALISA. The late chiefs response was that he does not care and that he does as he pleases because he is the chief and there is nothing they can do about it.
DW5 told the court that she and the late chief had gone via one of the litigant's home. There the late chief was given one hundred maloti (100) and
two tablets or pills - brown in colour. Is she painting a good or bad picture of her chief? She claimed that she did not know what the money and the pills were for. She then proceeded to show the court that RAMATHALEHA SEKOATI asked the chief if he had noticed that his decision (the chiefs) making him the headman of HA CHALALISA did not satisfy MAHLOMOLA CHALALISA. According to DW5, MAHLOMOLA CHALALISA had expected that he would be made the Headman of HA CHALALISA - succeeding after his father who was the headman thereat. This is an attempt to shift the motive to kill the chief away from the unhappy and discontented villagers these accused persons who have been arrested for suspicion that they are the ones who killed the chief.
As I have already mentioned at the beginning of this judgement, the accused and their witness - DW5 are relative. DW5 is married to KHOBATHA MAKAFANE's brother. Evidence has shown this court that KHOBATHA MAKAFANE at the last "Pitso" held to choose the Land Development Committee which went to HA CHALALISA to settle the land dispute between MAHLOMOLA CHALALISA and RAMATHALEHA SEKOATI, vigorously opposed the nomination of his sister-in-law- DW5 to be in that committee.
Like PW2 - LEBOEA MAKAFANE, their uncle KHOBATHA MAKAFANE was deeply offended by the late chiefs attitude of conducting publicly his love affair with his sister-in-law. Despite his objections, his sister-in-law was elected into that committee. DW5's membership of that committee provided convenient excuse for her and her love to be together. But to her-in-laws it must have felt like salt was being rubbed into their wounds of their pride. May be some of her relatives could not take any more of that insult.
The established facts of this case show this court that the Land Development Committee - consisting of the late chief Bereng Theko as ex-officio Chairman went to Ha Chalalisa to resolve the land dispute and headmanship of Ha Chalalisa. The members of the said committee were, PALEO MOLEPE, GAUDA NTSOELE, KUBU KUBU, 'MOMOTJOKA LENKOE and 'MAUSEMELO MAKAFANE-DW5.
The members of the committee went to HA CHALALISA from their homes in LITS'ANENG, on the morning of the 26th June 1992. That was the very next day following the day of their election in the said committee. They completed the task which they had set out to perform at HA CHALALISA at
about one o'clock in the afternoon of the 26th June 1992. They returned to LlTS'ANENG-their home in groups of two or three. The chief was travelling back home in the company of his mistress-DW5. All the other members travelled ahead of the late chief and his mistress. Who remained behind. When asked why they remained. DW5 gave only one reason for their remaining behind when others left. She said her lover wanted to show her someone's house in that village. But in her evidence she testified to the effect that they went via the successful litigant's home where the chief was given money and drugs. At about four o'clock that afternoon the late chief was seen in the company of DW5 by PW4. This witness had borrowed the bridle from the late chief on an earlier occasion. On this date - 26th June 1992 at that late afternoon he returned the chiefs bridle which he handed to him while the chief was in the company of DW5 . The late chief reprimanted PW4 for having kept to himself his bridle, for too long period He nevertheless received it and he and his mistress continued on their way.
The late chief was wearing a "letlama" blanket. The next day round about one o'clock in the afternoon an alarm was raised for all the villagers to come and see what has happened at "MAKARENG". The villagers converged
to where the alarm was raised. There at MAKARENG, Chief Bereng Theko was found dead. He was no longer wearing his blanket. His face was covered with blood. He had sustained several lacerations on the head, including his forehead. Both right and left arms - from their wrists, through the lower arms up to the upper arms and shoulders the deceased had lacerations, deep and shallow cuts and fractures. These injuries are consistent with the fact that the deceased was engaged in a verocious fight where weapons such as the ones produced by these accused to the police as the ones they used to assault, fight or kill the chief. The post-mortem examination shows the cause of his death as being due to Hamorrhagic shock, secondary to multiple lacerations. It is aparent that he lost not only the battle which seemed too much heavy, but he also lost his life.
There is no direct evidence which connects the four accused persons to the alleged crime of murder of their chief. The motive to kill the chief has been spread to cover not only these accused persons as part of the discontended villagers. But to cover even one of the litigants in that land dispute at HA CHALALISA. The defence endavoured to give the impression,
and have succeeded, that it was not only these accused who wanted to see the chief dead.
The next question to resolve is who then had an opportunity to kill the chief. The only person who was expected to shed some light on "who has done it?' is unfortunately unable to do so. DW5 I repeat was the last person to be seen in the company of the deceased just before he met his death which could have happened just a matter of a few hours from the time they were seen together. The chief came to HA CHALALISA riding on a horse.
When he returned home he gave his horse to one of the member of the committee to ride it back home. The chief seemed to have derived some fun walking together with his mistress. All other members of the committee walked back home ahead of the two lovers - (the chief and DW5). Along the way, at some village, the two men, one of whom was towing or leading the chiefs horse back home stopped at a sheebeen where they had some drinks. DW5 with her paramour found these people waiting, apparently with a view that the chief might need his horse to ride back home. The man called at the chief to take his horse and ride. The chief indicated that he does not need his
horse. The man insisted to handover to the chief his horse. Thereupon the chief pointed out to him that if he rides on a horse, the person travelling with him (meaning DW5) will have to walk faster and harder in order to keep up with the horse. So he did not want to subject DW5 to suffer that hardship or inconvenience. The chief persisted that the man takes his horse back home. DW5 had earlier on told this court how much he loved the late chief. In her evidence at this juncture she is trying to show the court that the late chief also cared deeply for her and valued her companionship perhaps till death do them part. The same month introduced a twist in the story of their companionship. Suddenly the chief did not want to be seen coming into his village in her company and without his horse. The chief directed her to run or walk fast in order to catch up with PWl's who was far ahead. This time it was convenient for her to walk fast or even run. She ran so she said, but caught up with no one. She had left her lover there where he was next day found dead.
All these accused persons after their arrests took the police to their various homes where they indicated and/or produced weapons which they claimed at the time that they used them when they fought with or assault or
killed their chief or words to that effect. Those indications were made by the accused persons freely and voluntarily. All the accused denies that they made statements at the time they produced those weapons to the police. The question to be determined is therefore whether or not the accused made those statements allegedly made by them when they produced the said weapons? This is a question of fact whether or not such statements were made by the accused as alleged. There was no need to hold a trial within a trial to establish if those statements were made freely and voluntarily S.V CHENISSO 1983 (4) SA 912. There is no allegation and/or evidence of any undue pressure being brought to bear upon the accused. The accused simply deny ever making any statement when producing those weapons. The statement made by the accused at the time they produced the weapons they used when they assaulted the chief, were ruled admissible. Those statements were not confessions. The accused are charged with murder. None of the accused admitted murdering the chief. Their admissions to assault, fight or kill the chief, are not admission to murder and therefore admissible. PETLANE V Rex 1971-73 LLR at 88.
All the accused persons admit that they took the members of the investigating teams to their village LITS'ANENG. They also all admit that there at their various homes, they all produced weapons which they handed over to the police. Strangely enough all the accused persons claim that the weapons produced before this court are not the ones which they handed to the police. Why would the police substitute the identical weapons for those which were handed to them by the accused? No one has suggested the reason why the police would substitute those weapons. True this is one of those matters which should have been brought to trial and completed long ago. The matter itself occurred in 1992. The trial commenced in 1997. When the High Court was torched in 1998, the original record was destroyed in that fire. One of the accused persons has since passed away. Some exhibits got lost because the investigations office changed locations several times over the years. Therefore the suggestion that seemed to be attractive is to the effect that the police lost the weapons these accused persons handed to them but wisely secured identical weapons and substituted the lost ones. Is there a need to substitute? What and why? There is no need and nothing is a substitute. These are the correct home-made spear, swords/sables and sticks. Where could the police find the identically home-made weapons? The
attempts by the accused to create some difference of some kind on the weapons have failed e.g. Accuse 1 denies that EXHIBIT 1 is the spear he handed to the police, Accused 2 claims his sable had red tape on the handle. The one before court has black tape. What is the function of the tape? Merely to enable the user to hold the weapon with less risk to hurt himself. Accused 3 - FOLEPE MAPOTA MAKAFANE went on indications with the members of the investigating team to a place where he pointed out the place where ashes together with the remains of the late chiefs property which was in his immediate possession on the day when he was last seen alive. These were ashes and chair remains of his blanket and the bridle. The police witnesses told the court that those exhibits though they were produced at the (Preparatory Examinations) got lost when they moved offices. If the police explained their failure to produce those particular exhibits, for what good reason could they not explain the loss of any other item which is lost as alleged by these accused .
Accused l - MATHEANTOA MATOBO told this court that he possesses no weapons. As a Mosotho man he must have at least a stick. The police forced him to produce any weapon he has as a mosotho man. He could only
think of a spear that was buried in his kraal. In order to save his skin from further assaults by police he decided to take the police to his home where after securing a spade he dug up the spear which to his knowledge had been buried by his brother as "THAKHISA" in his kraal. This so called spear was dug up in the presence of the chiefs messenger-PW3 and the members Criminal Investigation's Division PW5 and 6. All three witnesses observed that there was a blood stain on that spear. Common sense failed the police terribly on this point because the stain was not tested to determine whether or not it was of human origin. How long could it have been there? If that blood was of human origin, was it likely that it came from any of the accused or the deceased? All these questions could have answers if only the police did their work properly.
Accused2 - TSOETE TSOETE took the police to his home. There, within the walls of newly constructed dwelling house, there were bundles of thatching grass. TSOETE thrust his hand inside one of those bundles and pulled out the sable/sword which he handed to the police. Accused 3-FOLEPE MAPOTA MAKAFANE went into a smoky hut which he indicated as a place where he sleeps. In there on the roof he pulled out a stick. It is called
a bone stick. It is whitish cream in colour. It looks like plastic or bone. Police were taken to task for calling it bonestick. Call it anything. The name is not material. The evidence of the police and the chiefs representative establish without a doubt that it is the stick produced by Folepe A3.
Accused 4-KHOBATHA MAKAFANE conducted a search in the house in the presence of his mother and DW5 but failed to find what he was searching for. He peeped under the bed and lifted the mattresses. He enquired presumably from DW5 thus "where is that thing of mine which I left here?" DW5 had already asked accused4, what was it that he was looking for. She must have been aware what it was that he was searching for. DW5 proceeded to the entrance of that house. Above the door frame and under the roof of that house she pulled out sword/sable. She handed it to the accused whom she informed that she long ago removed it from where he left it.
Now I shall deal with Al's defence of ALIBI. Accused l (one) has in addition pleaded an alibi. This alibi was put to PW1, but she could not confirm or deny it. On that same day PW1 as a member of that LAND DEVELOPMENT
COMMITTEE had gone to HA CHALALISA. S v VAN EK EN 'N ANDER, 1996 (1) SA CR 130. Al led no evidence except himself. He claims he was here in Maseru at the time the deceased was killed at LITS'ANENG. He testified to the effect that he left Maseru very late, perhaps between 8 p.m. and 10 p.m. for LITS'ANENG. He is not certain of the exact time. There is no exact time of the death of the deceased, but it is the same night when accused l returned there after 8 or 10 p.m. The late chief was discovered already dead at midday or immediately there after on the next day. Even if MATHEANTOA MATOBO had come shopping to Maseru, he returned to LITS'ANENG that night. The onus proving the falsity of this alibi rests upon the crown. SELLO LEMPITANE AND OTHERS V REX CRI/T/38/78. Where the accused is in a situation where he can have nothing but his own evidence, it cannot be held against him that there was no evidence to corroborate him - S V NDLOVU 1983 (4)SA 507. Matheantoa had his mother whom he claims he left in the cafe in charge. He could have called his wife or at least fellow shoppers or travellers who were with him in that bus. It is impossible for the crown ten years after the event to establish which bus the accused used, who were his fellow passengers then. The onus resting on the crown to negative such defence must shift to the accused. Where he is better to establish it at least
on the balance of probabilities. PHALOANE V R(IAC) 1980-84 Page 72 There is an onus resting on the accused to establish on the balance of probabilities his defence S V NDLOVU supra. The accused should have given his alibi early enough to give the crown an opportunity to verify or disprove it. S V VAN EK EN ' ANDER (supra) e.g. those investigators. Criminal Investigations Division.
The court is urged to draw an inference from the fact that these accused produced the weapons which they alleged they used when they fought with the chief or words to that effect. This court has accepted that these are the weapons these accused handed to the police. The accused in turn have accepted that they produced the weapons in the presence of PW3-MPHO MOEKETSI who represented the chief because at that time the chieftainess who should have been the acting Chieftainess in the absence of her late husband, was mourning and unable to be present at those indications. She instructed PW3 to represent her. All the accused persons told the court that the relations between them and PW3 were good and still are. PW3 therefore had no bad faith to act in such a way that he falsely implicated the accused. PW3 testified before the court that the exhibits from
1 - 4, spear, produced by accused 1; sable/sword produced by accused2, Bone stick produced by accused3; and sword or sable and stick produced by accuseds are all the weapons these accused produced and handed to the police in his presence as the chief representative. This witness PW3, in his evidence supports the police witnesses that these accused at the time each produced a weapon, each accused made an accompanying explanation. Such as "this is a weapon I used when the chief was killed or this is the weapon I used to kill the chief or this is the weapon I used when we fought the chief. It is the finding of this court that all these accused gave those explanations when they produced those weapons. It is not likely that they could hand in those weapons quietly without saying a word. It is the evidence of all these accused that they went with the police to those places for the sole purpose of producing those weapons. DW5 in her evidence even though she denies that Accused4 said those words or words to that effect, she showed the court that she spoke to the accused. She asked him questions. Accused4 also asked questions. Both of them got answers to their questions. It is from these established facts that this court is urged to draw inferences. All parties in this trial agreed that the cardinal requirements set out in Rx v BLOM 1939 A.D 188 at Page 202-203 must be satisfied before such inferences are drawn.
DW5 was the very first person to be arrested for suspicion of that murder. It is understandable because she was the person who was last seen in the company of the chief perhaps a few hours before his death, she claim that the police arrested her for the purpose of showing her the list of the names of suspects. There was no need for her to be arrested only to be shown a list which the police pleaded with her not to disclose to anyone. Why would the police show her the list of names of suspects if they did not want her to tell those suspects? It just does not make sense. She denies that she is the one who gave the names of the suspects to the police. Her denial that she gave those names to the police may be excused. But to claim that the list was made by the police and merely shown to her by them for the purpose of employing her not to tell those suspects, she must have got her nickers in the twist.
It can, therefore, be inferred from the fact that the accused produced the murder weapons, that they are the ones who murdered the deceased, particularly because at the time each accused produced the said murder
weapon, made an accompanying explanation, that he used that weapon when they assaulted or killed or fought with the chief.
The injuries sustained by the deceased indicates that he was involved or are consistent with the alleged fight.
Evidence of PW2 shows that the accused in particular Accused 4 fought with their chief. The utterances made by the accused persons as and when they produced the weapons confirm that they engaged the deceased in a fight, e.g. each accused said, "This is the weapon I used when we fought the chief or when we killed the chief or words to that effect. An inference can be safely drawn that all the accused were together fighting their chief.
It was not one accused at the time on different date. Even if they took turns or assaulted him separately there would still be a need to establish a common purpose. Common purpose is where two or more persons combine in an undertaking for an illegal purpose, each one of them is liable for anything clone by the other or others of the combination, in the furtherance
of their object, if what was done was what they knew, would be a probable result of their endeavouring to achieve their objects S v MALINGD 1963 (1) SA 692 (A). In a fight all of them together were assaulting the deceased. They must have seen that the injuries they have inflicted or were inflicting upon him will cause his death. They deny inflicting any injuries on him. It must be inferred that if they fought him or assaulted him or killed him as they admitted that fact in their various statements made when they produced the weapons, they must have inflicted those injuries from which he died. They definitely saw the possibility of him dying. The injuries were concentrated on his head. There was an open wound on his forehead. There were (3) three open wounds on the middle of the head. There were three more open wounds at the back of his head. The deep and shallow cuts, lacerations and fractures on both right and left wrists, forearms, upper arms and shoulders, indicate that the attack was directed more to the upper part of his body. The numerous number of the wounds concentrated on his head, together with the degree of the seriousness, makes the drawing of the inference that the accused intended to murder the deceased inevitable. R V MLAMBO 1957 (4) SA AD 727 REX V DUBE 1948 AD 360. The attack on that vulnerable part of the body - the head, was intended to put an end to his
life. This clearly demonstrate a direct intent to murder. The deceased died when assaulted or soon after because he was discovered the very next day before midday because the person who found him reported the finding to the chief who then went to the feast where the villagers were gathered to raise the alarm at 12 or so midday.
After the fight or assault, the chief was left there without any assistance if he was still alive. Or he was left there already dead. A4-reported to PW2 that night at dusk that they have fought with the chief. He did not tell PW2 where and how they fought. PW2 did not want to know because he asked no question. But PW2 told the court that when Accused4 made that report to him, he PW2 understood the message very well. But he did not ask where is the chief? How is he? The accused seems to have not cared at all whether or not their chief died? The items of property which he had in his immediate possession were disposed off. His blanket and bridle were burnt. Why? By whom? A3 FOLEPE MAPOTA MAKAFANE took the police to a place where the remain of those items together with their ashes were found. It was at the same area - MAKARENG, in the vicinity of where the body of the deceased was found. Accused3 must have taken part in their destruction. He does not
explain why he indicated those items to the police and the chiefs representative. His silence leave the court no option but to infer from his conduct that he participated in the attempt to cover up their action and try to conceal the identity of the deceased by destroying those items. Accused3 does not say why and by whom they were burnt. All other accused are also silent. The disposal of the deceased's property is of little significance in this matter because the deceased's identity and that of his assailants has been established beyond any doubt.
All four accused are found guilty of murder with direct intent.
For Crown - Mr. Thetsane
For Defence - Mr. Monyako