R v Nkojoana and Others (CRI/T/74/2000)

Case No: 
CRI/T/74/2000
Media Neutral Citation: 
[2003] LSHC 61
Judgment Date: 
27 May, 2003

Downloads

CRI/T/74/2000

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


REX

vs

PITSO NKOJOANA

SEIPATI NKOJOANA

RAMONOME TSEPISO


JUDGMENT


Delivered by the Hon. Mrs Justice A. M. Hlajoane on 27th May, 2003.


The three accused persons appeared before me charged with three counts of murder, attempted murder and unlawful possession of a firearm. Before the charges were put to the accused the Crown applied for an amendment to the charges by


2


dropping one of the charges, that of attempted murder. The amendment was granted leaving only two charges against the accused.


In count one, the accused are charged with murder. In that upon or about the 8th day of April 1993 and at or near Ketane in the Mohale's Hoek district, the said accused did one or all of them unlawfully and intentionally kill Tsolo Shale.


In count two the accused are charged with unlawful possession of a firearm. In that upon or about the 8th day of April 1993 the said accused, did one, the other or all of them unlawfully and intentionally have in their possession a firearm without being granted or being holder(s) of a certificate issued under Section 4 of the said Act (Act 17/ 1966) and did thereby contravene the provisions of the aforesaid Act.


When the charges were put to the three accused, they all pleaded not guilty to the charges and Mrs Kotelo for defence showed that the pleas of not guilty were in accordance with her instructions. Pleas of not guilty were accordingly entered in respect of all the accused on both counts.


P. W. 1 Reentseng Khosi after being sworn-in told the Court that he knew both the deceased and the three accused as his neighbours. He was at Lekhalong at the old teachers' premises on the 8th April 1993 looking after his horses. This was at around 2. 00 p. m.. As he was there the deceased came and passed near where he was to his (deceased's) field at Thoteng. The deceased later came back with an impounded horse belonging to accused 3. Accused 3 came following the deceased and once he had caught up with him they both started fighting with sticks. The witness was about


3


300m away from where the fight took place.

The Witness then called out to one Sentso from where he had been thrashing pears to go and stop the deceased and accused 3 from fighting. It would seem that Sentso did approach those who were fighting as the witness then said that when he got there Sentso had already intervened. Accused 2 had also arrived by then.


After they were separated accused 3 took his horse which had been impounded by the deceased and went home. One Ramonaheng advised the deceased to go before the Police without explaining further why he should approach the Police. The deceased walked home on foot whilst accused 2 and 3 were on horseback.


The deceased then went back to the thrashing area. As he was there accused 2 and 3 came down from a hill both riding on one horse. It was accused 2's horse and the one which had been impounded was presumably left at home. As they went passed the witness, accused 2 came down from his horse. Accused 3 went on still on horseback. He was in possession of a brown gun. Accused 3 had ordered P.W. 1 not to come any closer as he too would be shot.


At that time the deceased was with Sentso Shoaepane, 'Mamohau Shoaepane and 'Mapheello Shoaepane. P.W.I nonetheless followed accused 3. When accused 3 got to the trashing place he was seen pointing his gun at the deceased and as he did that he was no longer on horseback. P.W.I had run towards them and as he was 100 paces away he heard a gun report. The deceased was then seen rushing at the accused, accused 3, with a stick, and hit him around the ridge of his nose. Accused


4


3 fell down find accused 2 then picked up stones and threw them at the deceased. Accused I had not yet come to the scene. Accused 2 got hold of the gun in trying to intervene The gun was later taken by one Thabiso Mohanoe who has since passed away (may his soul rest in peace).


The witness told the Court further that after the fight they went home. Accused 2 rode on his horse taking a direction to his home at Dryhoek. On his return, he came back with accused 1. When accused 2 arrived he asked where deceased was and he was shown where he (deceased) had disappeared and it was explained further that he might have gone home.


The witness then told the Court that accused 1 and 2 turned their horses and followed the direction which the deceased had taken, P.W.I followed them but only went as far as the pass or neck and then came back. The witness showed that Samuel Shoaepane, Tebelo Ramofolo and Matsoso Lephoto had also followed accused 1 and 2. The Chief, Chief Nkojoane only called P.W.I and others after Samuel Shoapane had come back from following accused 1 and 2 and had given him a report. Following that report the chief instructed the witness and others to go and collect the dead body of the deceased and bring it home. They complied.


Police only arrived in the morning and examined the dead body. As Police examined the body P.W. 1 observed an open wound on the side of deceased's head which was bleeding. The body also had bruises all over. The body was transported on a stretcher made of sticks, to the Police Post, and the body sustained no further injuries on the way to the Police Station.


5


Under cross examination the witness showed that as he witnessed the fight between deceased and accused 2 there was nothing in between which could have obstructed his view.He further showed that the deceased impounded accused 2's horse as it was trespassing on his (deceased's) field not on Mamotale's field as it was suggested to him.


The witness still insisted that despite the fact that there is no gun before this Court, he in fact had seen a brown gun on the day in question and that it was fired. He too had encouraged the deceased to go and report to the Police.


P.W.2 Nkhala Mofao after being sworn-in told the Court that he knew the deceased in his lifetime though they did not live in the same village. He does not know the accused before Court. As he was herding his animals in the late afternoon of the 8th April, 1993 he saw a man from the neck riding on horseback. Following him there came two men and as they neared the man on horseback they started throwing stones at him. The man on horseback was about 30m away from them. He had not identified the man on horseback at the time. They hit him on the head and he fell from the horse. As he fell one leg was trapped in the stirrup and the horse dragged him along as it was running. The horse was running fast and kicking the man in the process. Before the throwing of stones the horse had been going slowly. The two men then returned as the horse was dragging the man. The horse left the man some distance away. Where he had fallen P.W.2 explained that he was no longer moving.


P.W.2 was 100m away from where the deceased had fallen. It was only after


6


the deceased had fallen dead that P.W.2 identified him as Tsolo Shale. One man came and P.W.2 shoedd him where the deceased had fallen. That man raised an alarm and other people on horseback came. P.W.2 then left for his cattle post. Under cross-examination P.W.2 pointed out that he did not identify who the two men were.


P.W;3 Moria Motopi after he was sworn-in showed in his evidence that he knew neither the deceased nor the accused. He remembered giving evidence before the Magistrate Mohale's Hoek concerning the death of Tsolo Shale. He remembered the time that he was looking after his animals when he saw a man coming from a neck and immediately following were some two men. The two men followed the direction taken by the first man to Ketane. They were all riding on horseback. The two following the man in front started throwing stones at the first man. As they threw stones at the first man they were no longer on horseback. The distance between was estimated at 300m away from the first man who was still on horseback.


One stone hit the man on the head causing him to fall from the horse, but one of his leg got caught up in the stirrup. He was dragged by his horse for some distance and as the horse was running away it was also kicking him in the process. The leg was freed from the stirrup and the deceased fell on the ground. The witness estimated the distance as the horse was dragging the deceased as 80m. The two men then went away leaving the deceased there. The witness had not yet identified who the two men were. Some other two men came and were shown where the deceased had fallen.


7


Before the throwing of stones P.W.3 had not heard any conversation between the two men. He showed that if ever there had been any conversation between them he could have heard. P.W.3 then drove his animals away even before he could know if the man was still alive. Under cross examination the witness showed that all these happened in the late afternoon.


The fourth prosecution witness Matsoso Lephoto in his evidence, after he was sworn-in told the Court that he knew both the accused and the deceased. It was on the afternoon of the 8th April, 1993 when he proceeded to where a fight was taking place. People had already gathered there. He met the deceased, who told him about the fight. The deceased went to report to the Chief of the area. P.W.4 encouraged the deceased to go and report to the Police. P.W.4 pointed out that he did not try to find a solution to the problem as he was scared of the gun when he learned that it had been used.


The deceased then left for the Police Station. Accused 1 and 2 arrived on horseback immediately after the deceased had left. One Ramahlaku then remarked and said to accused 1 and 2, "There is your man on horseback heading for the Police, follow him." Accused 1 and 2 then followed the deceased, and as they went after him, P.W.4, Tebelo Ramofolo and Samuel Shoaepane also followed suit as they wanted to ensure that the accused was not going to kill the deceased. P.W.4 and his group did not follow immediately as they still had to go and fetch their horses from the veld.


8


P.W.4 and his group ihen followed the two accused but they only went as far as the neck leading to the Police Station as they had lost track of both Accused 1 and 2. The witness further explained that he had seen the gun in the possession of one Thabiso Mohule who has since passed away. Thabiso in turn gave the gun to Ramahlaku Tsepiso. When he again saw the gun it was at the Magistrate's Court Mohale's Hoek, P.W.4 and his group were later called by some herdboys who showed them where the deceased had fallen. They approached him and found that he was dead. They left him there and went to report to the Police. It was only him and Tebello Ramololo who reported to the Police as Samuel had already left. They had asked him to go and report to deceased's family. The witness observed a wound on the side of deceased's head.


The Police did not come on that same day but in the morning of the following clay. The witness and others had remained with the dead body for the night. After a week when P.W.4 saw accused 3, he realised that he had a wound on the ridge of his nose. The deceased had explained to the witness how and why he had struck accused 3 with a stick on his nose. Accused 3 had remained at home when P.W.4 and his men followed accused 1 and 2.


When the Police arrived, they examined the dead body and had found no weapon with the deceased. The body was transported to the Police Post and was carried on a stretcher made of sticks. The body according to the witness did not sustain any further injuries on the way to the Police Post. The witness had seen the


9


gun, a short gun in Police custody.


Under cross examination, the witness was shown that he never mentioned anything about the short gun at the Preparatory Examination, and his reply was that he was never asked about it. It also came out under cross examination that one Ramahlaku whose name kept on coming in evidence, and accused 3 were brothers. Also that accused 1 and 2 are brothers. They are the sons to Ramahlaku's father's younger brother.


P.W.4 emphasised , on being re-examined that Accused 1 and 2 followed the deceased first and took the direction which the deceased took, whilst he and Samuel Shoapane and Tebclo Ramofolo followed later. Accused 1 and 2 took the deceased's direction and P.W.4 and his group also took the same direction.


The fith witness was Matholang shale who after being sworn-in told the Court that she lived at Ketane and that the deceased Tsolo Shale was her husband. She also know the accused as men from her village. She still remembered the events of April 1993 towards Piaster Holidays.


Her husband, the deceased, left home that morning for the fields. She had later heard 'Ma-Bernice calling out to 'Maleeto about a fight that was taking place. P. W.5 in turn called out to her mother informing her of what she had just heard at the same time rushing to the scene. But she met her husband on the way with a group of men including accused 2, Seipati Nkojoana. She could not see accused 3 amongst the group.


10


P.W.5 then asked the deceased to go home with her and he obliged. When the deceased got home he was advised to go and report to the Chief. The group followed the deceased to the Chief's place, but the accused were not amongst them. From the chief's place, the deceased took the direction to the Police. It was in the evening when P.W.5 learned about her husband's death. According to this witness there was no bad blood between the deceased and the accused.


The Crown had culled one Inspector Mokhara as P.W.6 but at the early stage of his cross examination the witness indicated that he could not remember ever giving any evidence at the Magistrate's Court at the Preparatory Examination stage. The witness was so serious about this fact that the Court even instructed the Registrar to refer him to a Psychiatrist to examine his mental state. This was in August 2002, but the report was never submitted to the Court. The Crown in November when it realized that the report was not forth coming asked the Court to expunge such evidence from the record because the defence had no objection to the fact that accused 2 and 3 were given a charge of murder. P.W.6's evidence was thus expunged from the record and did therefore not form part of the record before this Court.


The Prosecution then called in the evidence of P.W.7 D/Inspector Kanono Mokonyana, who after he was sworn-in gave his evidence to the effect that he was attached to CID at Police headquarters here in Maseru. He was stationed in Mohale's Hoek in 1993. The witness had received a report in 1993 concerning a case of attempted murder. He together with other Police Officers looked for the suspects whom they found at Ha Maphohloane, Mohale's Hoek. They were arrested and taken to the Charge Office. The suspects gave their explanations and such explanations


11


were followed. Following the explanations given the witness gave instructions to other Police Officers to follow the explanation which led to a short gun being taken before him, He was latter transferred from that place. Under cross-examination the witness explained that the firearm was produced before Court at the Preparatory Examination fllnge.


P.W.8 Tpr Damane after being sworn-in told the Court that he was stationed at Mohale's Hoek in 1993. He remembered that in August 1993, P.W.7 had handed over to him accused 3 Ramonono Tsepiso. After he had given accused 3 the necessary caution, Accused 3 gave him his explanation. The explanation led the witness to Thabu-Lethu outside Mohale's Hoek, where he met accused 3's headman. The witness explained to the headman why he was there. The headman then.took them to one Ramahlaku Tsepiso who explained about accused 3's gun. Ramahlaku took out a short gun from his place and explained to the witness about it.


P.W.8 then seized the gun after he had recorded its Serial Number. The witness showed that he took the gun to his duty station, filled the necessary forms for it and kept it in Police custody. Accused 3 was then asked by P.W.8 to produce a licence for his gun but he had none. He was therefore charged of the unlawful possession of that firearm. The gun had been taken to the Clerk of Court and it was ordered that it be kept by the Police in Mohale's Hoek. The witness was then allowed to refresh his memory on the Serial Number for the gun and he then gave the Serial No as F26559. There was no cross examination to this witness.


12


At this juncture, the post-mortem report was handed in by consent in terms of Section 227 (11 (a) (iv) of the Criminal Procedure and Evidence Act 9/1981. The report was read into the machine as the defence had no objection.


The report showed that the post-mortem examination on the body of a male African adult was performed on the 15th April, 1993 and the body identified by Seeiso Mochinc and Motlatsi Ramofolo as being that of the deceased Tsolo Shale. The cause of death was due to sustaining one big open wound on the left side of the forehead and a depressed fracture of frontal skull bone which extended to the brain. The left maxillary bone, Was also fractured. The report was accordingly handed in as an exhibit and was marked as such. This was the close of the Crown case.

After the close of the Crown case the defence counsel indicated that she intends changing the plea of not guilty in Count II to that of guilty in respect of accused 3 only and the Crown had no objection. The plea of not guilty was accordingly altered in respect of Accused 3 in Count II, to that of guilty. The accused chose not to go into the witness box to give any evidence, neither did they call any other evidence on their behalf, and this was the close of the defence case.


It is the accused's case that the Crown has failed to prove beyond a reasonable doubt that the three accused persons killed the deceased person. Also that at the close of the Crown's case the Crown had failed to lead convincing evidence linking the three accused with the death of the deceased person. In other words, the accused persons found themselves with no case to answer or evidence to rebut.


13


There have been three legal issues put forward by the defence, namely,


- Is there direct evidence linking the accused persons to the death of the deceased Tsolo Shale?


- Are there certain inferences that can be drawn which link the accused persons with the death of the deceased (Circumstantial Evidence).


- Were the three accused persons found in possession of a firearm?


On looking at the evidence as a whole of all the Crown witnesses, there is no one who saw the accused persons kill the deceased. There is no direct evidence of the observation by an eye witness of a fact in issue. If therefore direct evidence fails, the Court then has to look at circumstantial evidence which evidence would tend to supply proof in an indirect manner. In instances of such a nature, it is expected from the Court to draw inferences from the evidence given as the witness or witnesses did not directly observe the occurrence of the issue in dispute.


It has been elegantly put in the book of Hoffmann & Zeffertt at 589, that 'circumstantial evidence is an important source of information and is not necessarily of lesser probative value than direct evidence'. See Cloete v Brich 1993 (2) PH F17 (EC). Two considerations were laid down by Watermeyer CJ in the case of R v Blom 1939 AD 188. The considerations to be taken into account when accessing circumstantial evidence are as follows:


the inference drawn must correspond with the facts proved,


14


The inference drawn must be the only reasonable inference one can make.


Also consult N v Mtsweni 1985 (1) SA 590 (A).


The distinction between direct and circumstantial evidence is of special importance in those cases like the present, where an accused person does not testify in his own defence. S v Mthetwa 1972 (3) SA 766.


We have heard P. W. I's evidence that accused 3 was seen pointing a gun at the deceased and a gun report was heard, after which a fight ensured between the deceased and accused 3. It was after that fight that the deceased was seen by P.W.I leaving on horseback to the Police Station. He said it was in the late afternoon at around 4.00 p.m.. We have also been told that accused 1 and 2 arrived shortly after the deceased had left. Then accused 2 asked where the deceased was and the witness showed them the direction which the deceased had taken and they (accused 1 and 2) followed that direction. The two accused were also on horseback as they followed the deceased. It is here important to note that the identity of the deceased and the two accused persons was without any doubt to P.W.I, Reentseng Khosi and P.W.4 Matsoso Lepholo. The three of them were people whom he knew very well, that is the deceased, accused I and accused 2. P.W.I and P.W.4 saw the two accused taking the direction which the deceased had taken. P.W.4 had even followed the two accused.


P.W.2 Nkhala Mofao on the other hand though he did not identify who the men on horseback were, had also around the same time and place seen the first man


15


on horseback and immediately following him were some other two men still on horseback. He said it was in the late afternoon when all these happened. This witness observed the throwing of stones at the first man by the two men causing him to fall from his horse and and the horse dragging him.


The third witness P. W.3 Mosa Motopi, gave similar evidence as that of P.W.2 in that he did not identify the first man on horseback and also the two men who followed the first man to Ketane direction. He also witnessed the throwing of the stones at the first man and the man falling from a horse and the horse dragging him.


P.W.4 Matsoso Lephoto had also seen the deceased leave, and accused 1 and 2 following immediately after him taking the same direction. He too had followed the two accusal but only lost track of them.


Of importance in this case is to find a basis for the accused persons to have had a reason of fighting, and killing the deceased. The Crown's evidence has shown that the deceased hat! impounded accused 3's horse and it would seem that accused 3 did not approve of that as he did not consider his horse to have been trespassing on anyone's land. Accused 3 fought the deceased and managed to take his horse back by force. Later when deceased had returned to the thrashing area accused 2 and 3 came back to him and fought him. That was when deceased struck Accused 3 with a stick causing him an injury on his nose.


Of importance also is the fact that the deceased had only fought with accused 3 who got injured during that fight. Accused 2 threw stones at the deceased when he


16

saw accused 3's injury on his nose. When accused 2 and 1 left to follow the deceased they had been with accused 3 at his place. They turned against the deceased because they sympathised with accused 3. They wanted the deceased to pay back as he had injured accused's nose (ba jella phate). They had a reason to fight the deceased. There had been no other people who were against the deceased during that time and place. Accused I and 2 were the only ones who asked for the whereabouts of the deceased after the deceased had left. They were the only ones who were seen following or taking the direction which the deceased had taken. So that the only reasonable inference to be drawn is that the three people who were seen on horseback following each other by P.W.2 and 3 were accused 1 and 2 following the deceased and throwing .stones at him. leaving the deceased unattended after he had fallen from the horse which had dragged him for quite some distance.


As for P.W.I and 4, they clearly saw accused 1 and 2 follow the direction which the deceased had taken. P.W.4 even tried to follow them but returned on the way when the realized that he had lost track of the two accused persons.


To respond therefore to the three legal issued, the Court finds that there has been no direct evidence linking the accused with the death of the deceased. But there arc certain inferences that can be drawn which link at least two accused persons with the death of the deceased us shown by the evidence of P.W.I, 2, 3 and 4 above.


As was said in the case of S v Nomakhala and Another 1990 (1) SACK 300 (A) and R v Ismail 1952 (I) S.A 204 at 210 that, 'there is no obligation upon the accused to give evidence in any sense except that if he does not do so he takes a risk1.


17


As has already been said above, the accused did not give any evidence as they felt that there was no case for them to answer. The Court has already shown that from the evidence of the four Crown witnesses a reasonable inference can be drawn that accused I and 2 were the ones who were seen following the deceased, throwing stones at him and leaving him unattended and unassisted after he had fallen from his horse which had dragged him along for some distance kicking him wildly in the process. The horse had been going at a normal pace before the throwing of stones.


The accused were legally represented and as such must have been well advised that where the prosecution's case rests on circumstantial evidence, failure to testify is a factor which can be taken into account in inferring guilt. The two accused's acts were unlawful and (hey must have intended to see the deceased dead. They followed him, threw stones at him and did not care to see where they struck the deceased and the Crown witnesses said they saw stones striking he deceased on the head causing him to fall from his horse. We have been told that before the throwing of stones at the tleecased his horse had been going at a slow pace. Even if the stones could not have struck the deceased's head, the horse may have got such a fight from throwing of the stones that it became wild and threw the deceased off as it started galloping fast.


To show that the accused must have intended what happened to the deceased, they witnessed the horse dragging him along and when he was finally freed from the horse's stirrup, they did not bother to approach where he had fallen to check on his condition. Instead they left him there and went back home, not even to report to anyone when they got home because they were satisfied that their mission was accomplished. They subjectively foresaw that a serious crime would possibly be


18


commited as the horse was dragging the deceased along.


It is without doubt therefore that deceased's death was a result of the unlawful acts of accused I and 2. As for accused 3, after he was struck on his nose with a stick by the deceased, he went back home to nurse his wound. It has not been shown that he ever came back nearer to the deceased thereafter.


Coming now to Count II of unlawful possession of a firearm. Evidence of P. W.8 Tpr Pamane, has .shown that he followed the information that he had received, and got to Thaba-Lethu where he was given a short gun. Accused 3 did not deny that it was the gun he hail talked about. He was asked about the licence for possession of that Firearm but did not have any. This takes us back to the evidence of P.W.I, who had told (he Court that he had seen accused 3 pointing a gun at the deceased who had impounded his (accused 3) horse. The gun should be, the very one which the accused, accused used.


Accused 3 has further altered his plea of not guilty to that of guilty in respect of this Count. Besides, P. W.8 was not cross-examined on that aspect thus leaving the Crown's evidence intact.


In (he result the following verdicts are given;


Accused I - Count I Guilty of murder

Count 2 Not guilty, acquitted and discharged.


19


Accused 2 - Count 1 Guilty of murder

Count 2 Not guilty, acquitted and discharged.


Accused 3 - Count 1 Not guilty, acquitted and discharged

Count 2 Guilty as charged


I had been assisted by two assessors from the beginning of this case up to a stage of after the addresses, but today when I come to deliver this judgment I am only assisted by one assessor as the other assessor had departed this life.


Sentence


The two accused, accused 1 and 2 have been found guilty of murder. On the facts of this case it cannot therefore be said that the accused planned to kill the deceased in the legal sense. They felt provoked by the attitude of the deceased of having injured accused 3 after striking him with a stick on his nose. Evidence has shown that all three accused are related to each other. The absence of premeditation in itself is a factor to be considered in tending to reduce the moral blame-worthiness of the accused's acts. Throwing of stones at deceased may have not been such a serious act, but when deceased's leg got trapped in the stirrup, then accused subjectively foresaw that a serious crime was going to be committed as the horse dragged the deceased along for quite some distance.


Provocation not being a defence but a factor to be considered in considering accused's blameworthiness. Also lack of premeditation, both coupled together


20


worked to reduce accused's moral blameworthiness. The accused are therefore to be found guilty of murder with extenuating circumstances.


My assessor agrees with my finding.


The crown counsel had told the Court that the accused has no record of previous convictions. This in itself is a mitigating factor.


The defence counsel on the other hand also invited this Court to consider several factors in mitigation of accused's punishment. In passing sentence therefore I shall take into account the fact that accused are first offenders. The conduct of accused 3 was rather aggressive, but the reasons as to why his horse was impounded did not come up very clearly, save that deceased said the horse was trespassing on his land. The deceased was hit by a stone or stones thrown at him by the two accused. A stone may not be a lethal weapon, but all depends on how it was used. The results may have not been intended, but were foreseen as a possibility, 'dolus eventualis'. A human life has been lost, leaving some kids out there without a father, and a wife without a husband to maintain.


Accused 1 and 2 are therefore sentenced to eight (8) years imprisonment each without an option of a fine.


Accused 3 is sentenced to M500.00 or three months imprisonment.


21


A. M. HLAJOANE

JUDGE


For Crown: Mr Kotele / Ms Maqutu

For Defence: Mrs Kotelo