R v Mashalane (CRI/T/30/99)

Case No: 
CRI/T/30/99
Media Neutral Citation: 
[2003] LSHC 63
Judgment Date: 
28 May, 2003

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CRI/T/30/99

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

vs

CHAKA MASHALANE


JUDGMENT


Delivered by the Honourable Mrs Justice A. M. Hlajoane on the 28th May, 2003.


The accused appeared before me facing three charges of murder, attempted murder and unlawful possession of a firearm respectively. In Count one it was alleged that upon or about the 22nd of February, 1997 the accused acting unlawfully and with intent to kill, did assault the deceased Mothepu Mabandla and inflict a bullet wound upon him from which the said Mabandla died at Thaba-Khubelu on the 23rd of February, 1997.


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In Count two it was alleged that upon or about the same date as in Count one, the accused acting unlawfully and with intent to kill, did assault one Lebitsa Ntsoeu and inflict a bullet wound upon the said Lebitsa Ntsoeu.


In Count three it was alleged that upon or about the 23rd February, 1997 and at or near Thaba-Khubelu in Mokhotlong the said accused did unlawfully and intentionally have in his possession a firearm to wit a 9mm Pistol serial No AB 19805 without holding a certificate contrary to section 3 (1) of the Internal Security (Arms and Ammunition) Act 1966.


When the three charges were put to him the accused pleaded not guilty to all three of them, and his counsel, Mr Phoofolo, showed that the pleas were in accordance with his instructions. The pleas of not guilty were accordingly entered on all the three Counts.


The Prosecution led evidence of eight crown witnesses in its effort to establish a prima facie case. The evidence of the first crown witness, Tpr Yengane after being duly sworn in, told the Court that he was stationed at Mokhotlong in 1997 as a Police Officer. He remembered that he had been issued with a firearm in the performance of his duties which firearm unfortunately got lost sometime in February, 1997 as they had gone out on patrol with other Police Officers. They were on horseback. The witness and his team had stopped at a place called Mechalleng to allow their horses to drink. In fact the witness had remained behind with one Molikeng Lithakong. After they had watered their horses they proceeded on their way to Reli cattle post.


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It was P. W. 1 's evidence that on their way he had put his hands on his waist to check for his firearm, only to find it missing. He did not have any idea as to how it got lost. It would seem that the witness did not go back to where the horses had been drinking but proceeded on his journey. He only looked around him and then proceeded on his journey. He informed his team about his missing pistol. The witness and his team spent the night at the place called Matlaong. P. W. 1 went back to where the horses had been drinking the following day to look for the gun but all in vain.


The team proceeded on its patrol for stock theft and then went back to their station. Arriving back at his station P. W. I reported about the missing gun which according to him was still loaded with 15 rounds. He gave the serial No of the gun as AB 19805.


The cross examination revealed that, in fact the witness had been out on patrol for two weeks and he was not certain as to when the firearm might have fallen. He showed it could have been when his horse was drinking or when it was galloping causing him to fall off.


P. W. 2 Sgt Letsoepa, after being sworn-in told the Court that he too was stationed in Mokhotlong in 1997. He clearly identified the accused in this case as he had been the investigator in this case. He went further to show that he met the accused at the charge office as he had surrendered himself. When the accused surrendered himself according to the witness, no report had been given about the deceased. When he so surrendered himself he had no gun with him but his


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explanation to the witness culminated in their going to where the accused had hidden the gun at a place called Phutha. One Police Officer who was not called as a witness was driving the vehicle which took them there. Tpr Phakisi also accompanied them.


According to this witness the accused took out from under a rock near the foot path and the road, a 9mm pistol and handed it over to P. W. 2. On inspecting the firearm, the witness found that it had a bullet in its muscle or chamber, whilst another bullet was still in the magazine. The gun bore the serial No. AB 19805.


e witness and other two Police Officers visited the scene of crime the day following that of the accused surrendering himself. As they arrived they identified themselves to the chief and were shown the dead body of the deceased on the ground. This was at Thaba-Khubelu. The body was at the forecourt of the accused's place. On examining the body an open wound on the left side of the chest was discovered and another open wound on the right shoulder at the back. Two 9mm shells were also found at the accused's place. The dead body was transported to Mokhotlong mortuary and it did not sustain any further injuries on the way to the mortuary.


P. W. 2's investigations revealed that the firearm which the accused handed over to him was in fact that of P. W. I which had gone missing. The gun was eventually released to P. W. 1 as there was a Court order to that effect. It would seem that the gun was again taken by the witness from P. W. I for purposes of producing it as an exhibit before court and was thus handed in as an exhibit and was marked as such. An amendment was made in Count III to include also two rounds of ammunition, and this was not objected to by the Defence. The charge was thus amended accordingly.


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The two shells which had been picked up from the scene of crime were taken for ballistic examination and later taken to the Magistrate Court at the Preparatory Examination stage, but they could not be produced before the Court as they could no longer be traced, 'carelessness'. P. W. 1 had identified the gun and the bullets as his.


According to this witness, the shells were found at the door at the accused's place. The distance where the deceased had fallen from accused's place was estimated at 100 paces away.


Under cross-examination, P. W. 2 explained that the accused had in fact told him of his quarrel with the deceased. The witness had no quarrel with the suggestion that the accused went to the police to seek refuge as he had been attacked at his place of residence. The quarrel it would appear, had not brought the accused and the witness face to face.


The witness explained further that he explained the accused's rights to him but did not remember including also accused's rights to legal representation of his (accused's) choice. It also came out under cross-examination that the witness and one Foloko visited the scene of crime on the 23rd February 1997, that is, a day following the deceased's death. And when they so visited the scene, they did not go with the accused who was already in detention, but left him behind at the charge office. The witness showed that he found it not necessary to have visited the scene with the accused. There had been a directive from the witness's office that the chief of the area should instruct his subjects to guard the dead body for the night as Police would only come the following day. This was done.


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11 was suggested to the witness under cross-examination that in fact some of the men who were asked to guard the dead body for the night were Thusang Mokete and Semethe Rasethuntsa, both of whom had clashed with the deceased before he met his death and had been sent by the chief to go and bring the deceased before the chief. It was also suggested that both Mokete and Semethe had directly met the accused after the incident and being potential witnesses, and having been charged with the assignment of going to guard the dead body for the night, could not exclude the possibility of them interfering with the Police investigations. The witness showed that there could be such a possibility, but disagreed with the suggestion that there could also have been a possibility of interfering with the position where the dead body was after the shooting and before the Police visited the scene.


P. W. 2 also pointed out under cross-examination that the distance between accused's place at Thaba-Khubelu and Mokhotlong Police was not far except that the road between the two places was bad and that caused the journey to be long, as would have to cross three dongas and pass a mountain. He further showed that by horse could take 2 to 214 hours. The witness could not remember where the deceased had fallen because according to him Tpr Foloko took over and continued with further investigations. It was suggested to the witness that accused was going to say that he in fact did not directly shoot at the deceased but that what happened was, as he was attacked he retaliated from the rondavel behind which the deceased fell. The witness could not deny that. Through his investigations the witness came to know that there had been a clash or a fight between the deceased and the accused. It was this witness's testimony that he would caution a suspect at the completion of his investigations, and also that in law an arrest could only be effected at the completion


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of the investigations.


Lebitsa Ntsoeu was called by the Crown as P. W. 3. His testimony was to the effect that he remembered that it was on a Saturday during the second month in 1997 when he was sent by Chief Tsiu Matete, to go and call the accused. The witness knew the accused well as his home boy. He went to call the accused in the company of Semethe Rasethuntsa, Lethusang Mokete, Tau Baholo, Ramahlele Thebe, Lenka Lenka, Mothepu Mabandla and Griffiths Mokete.


It was P. W. 3's evidence that as they neared accused's place, estimated at 20 paces away, 'Mamarife, the accused's wife, shouted to warn her husband that they were coming to arrest him. According to the witness, 'Mamarife even asked the accused to shoot at them (witness and his group). The accused who was standing outside at the time went inside one of his houses and came out of the house uttering insulting words. The accused put off his blanket and started shooting. The group dispersed and ran away and the witness got shot in the process.


According to this witness, as the accused fired the second time, Griffiths Mokete asked the accused why he was shooting at them yet they were not at his place and had so far not said anything to him. It would seem that the witness fell, because his evidence went further and showed that Lethusang and Rasethuntsa came to where he had fallen and found that he had sustained an injury. They supported him to the chiefs place. The witness reported to the chief as to what had happened to him.


As the witness was already at the chiefs place, Griffiths Mokete also arrived


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showing them where he too had been shot. His report also showed that Mothepu Mabandla had been shot and had fallen. The informer did not know if the deceased was still alive. The two who were injured were referred to the Police by the chief. They found the accused already at the Charge Office. They were later referred to the doctor.


The witness explained that there had been no quarrel between them and the accused prior to their going to call him following the instructions from the chief. They had only been sent to go and call him and come back with an answer. It was his evidence that they were all not armed with anything as they proceeded to the accused's place to call him.

According to P. W. 3, accused had two houses, one on the right facing East and the other on the left facing West. As the group approached accused's home, the accused was standing outside the house with its door facing East. The accused was near the door. He went into the house and came back. His wife had entered the house with him. There was a gun report and the witness did not see when the deceased was shot and when he fell.


As he heard the shooting, the witness went back home and never came back to the scene even after he had been to the Police Station. This witness also showed that it was a two hours journey by horse from the scene to the Police Station. He later observed that one Griffiths had been shot on the finger of the left hand and also on the left cheek. The witness had also been shot.


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Under cross-examination, the witness showed that they had only been asked by the chief to go and call the accused but not to arrest him. He did not know the reason why the chief sent for the accused. The witness had seen the accused's son just seated at the chiefs place without knowing why he was there. He also indicated that they hud gone to the accused's place to call him and also ask him why he had not come as the chief had sent somebody to go and call him. According to this witness, they were sent in a group as the accused failed to respond when only one man was sent.


In response to questions put to him, the witness told the Court that they had prior to that day been sent in a group by the chief to go and arrest one Tebelo Matete. He said, it was for the first time that they had to go in such a big group just to go and ca 11 someone, the accused. The cross examination revealed further that none of those men who were sent was armed with anything. The question further put to the witness was: -

Q = How did you take notice that none of you was armed?

A = I noticed that because it was not at night.


This was because the witness had shown that it was still light as it was before sunset and could even notice if one of the men in his group had a firearm in his hands. The witness was putting on a blanket on that day.


To a suggestion that some of his men were armed and one of them even fired a shot at accused, the witness denied the allegation and further showed that that was a lie as the accused was never injured but he on the other hand was shooting. The witness had seen the accused's son seated at the chiefs place without knowing if he


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was under arrest as many villagers were there. He did not know that accused and his son were suspected of theft of a horse.


The witness explained further that the accused came out of his house facing East before firing at the group. It came out from this witness that accused's house was within the village and that because the shooting took place in bright day light, there were many people who were watching from near accused's house. It was suggested to the witness that in fact there were more than seven men in his group going to call the accused and were walking in different groups as there were more than one path leading to accused's place. The witness was certain that he knew all the men who were in his group, but when asked about other people whom he had not mentioned but claim also to have been sent by the chief to go and call the accused, the witness said they might have not been in his group.


It was P. W. 3's evidence that when he was shot on his right leg he was about 10 paces away from accused's place, which was just below accused's forecourt. Next to P. W. 3 was Semethe. The witness had not seen the deceased anywhere near him as they advanced to accused's place. It was also put to the witness that accused was going to show that his wife had told him that their son was under arrest at the chiefs place and that he had been assaulted and had sustained injuries.


In cross-examination to this witness, the defence already indicated what their line of defence was going to be, that for safety reasons he did not want to go to the chiefs place at that late hour but preferred to go in the morning. He was going to show that he had shot twice in the air to scare the men away, as the group of men


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came to his house at night and started hurling stones at his house and shooting. He said he never shot straight at anyone, and could not identify his attackers as it was already dark.


P. W. 4 D/Tpr Foloko told the Court that he was stationed at Mokhotlong in 1997 when he received a report concerning the death of someone at Thaba-Khubelu. Following that report, he with P. W. 2 had proceeded to the scene, where he found a man fallen on his face near accused's houses, about 30 paces away. The witness took photos of the place and examined the place.


The witness found a shell near the deceased, about 3 paces away. Another shell was found, one foot away from the same house, where the deceased had fallen, 30 paces away from it. Photos of the shells were also taken by the witness.


The witness then took photos of the dead body of the deceased, first in the position he had found it and later took photos of the naked body. On examining the body he discovered a wound on the left side of his breast, another wound at the back below the shoulder blade. Though there were those two wounds, the witness could not tell whether one was the entry wound and another an exit wound, he left that for the doctor to explain. Photos of the wounds were also taken. The skipper he had put on had two holes.


The body was taken to the mortuary and did not sustain any further injuries on the way. After the photos were processed an album was prepared and was handed in before the Court. Other photos taken showed the accused's houses, the place where


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the deceased had fallen, ten paces away from the house and also the people who had gathered at the scene of crime. The witness concluded by telling the Court that through his investigations, he came to learn that the events had taken place after sunset.


Under cross-examination, the witness showed that he had left the accused behind at the charge office when he visited the scene of crime. When asked if he could have taken the accused with him to the scene had he known that he was already at the charge office, the witness showed that he would be guided by the explanation from the accused, and would only go with him when he found it necessary. He went further to say that even when he was already at the scene he did not find it necessary to have brought the accused with him.


Since there were two rondavels at accused's place, the witness explained that the dead body was lying on the side, 10 paces away from the rondavel on the left. He showed that if one was standing at the door for the other rondavel, he could not see where the body was as the other rondavel would be an obstruction, but standing on its side would clearly see where the body was. The witness further explained that because the two shells were found at the scene, that would not conclude that there must have two wounds inflicted as the other blow may have missed its target.


P. W. 4 had come to know that the events had taken place at night, but only came to know about them the following day when he was charged with visiting the scene as the scene of crime officer. The witness explained that he did not observe any stones at the scene, but had observed a broken window. According to this witness the


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damage seemed to be an old one, as there were no broken glasses below that window. The witness had the same observation about the door which could not properly close. He took it, to be an old damage to what he called an old stable door.


The Crown called in P. W. 5, Thusang Mokete, who told the Court that the accused was his co-villager. The witness had lost his horse two days prior to the alleged incidents. The witness had received some information relating to the son of the accused, one Marife Mashalane. The information was about his missing horse. Following that information the witness proceeded to the cattle post to search for his horse. He was in the company of Lenka Lenka.


When they got to the cattle post, the witness confronted Marife who in turn explained that in fact he was aware that their horse had been stolen and that his father, the accused was the one who knew of its whereabout. Marife asked the witness to go down with him to his father so that he could be confronted with his father. The three of them proceeded back home. On their way home, Marife changed to say that he should he taken before the chief as his father, the accused, was going to feel betrayed when he learned that his son had spilled the beans about the horse as they had made a deal with him not to tell anyone.


They did report themselves to the chief when they got home and did not go to the accused's home. After Marife had given his explanation to the chief, the chief then sent his men to go out and call the accused. Ramahlele Thebe and another had gone out to call the accused but came back with a reply that the accused was said to be in the fields.


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The chief then sent out Ramahlele on horse back to go and call the accused from the fields. He came back with a reply that accused had promised to come, but accused never showed up. When the accused was at his home, back from the fields, the chief sent out Tau Baholo and Griffiths Mokete to go and call him, but still he did not come, instead they told the chief that accused had shown that he would not come.


This witness told the Court that the chief sent out more men this time. Those that were mentioned by the witness were, Lebitsa Ntsoeu, Mothepu Mabandla, Lenka Lenka, Thusang Mokete, Tau Baholo and the witness himself. They were detailed to go and tell the accused that he was being called by the chief. The witness even said that, they were asked not to do anything to the accused but just call him. According to P. W. 5, when they went to accused's place the time was around 5. 00 to 6. 00 in the lute afternoon, the time when the cattle were coming home.


It would seem that the group that went to call the accused did not get to accused's place at the same time. They went there in groups following each other, and P. W. 5 was well behind as he had just been from the cattle post and was still feeling tired. The witness told the Court that as he was still some distance away from the accused's place, he saw the accused pointing a gun at Griffiths Mokete. He then saw some sparks coming from the mouth of that gun, and saw Griffiths staggering. As he staggered, Griffiths uttered these words, "why are you shooting at me yet I have not even arrived at your place, and does not know yet what I was coming to say. "


The witness said, accused kept on shooting. He even pointed his gun at P. W. 3, Lebitsa Ntsoeu and shot him. P. W. 3 fell to the ground and exclaimed that the accused


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had shot him on his leg. The witness then ran away as accused continued shooting. He saw the accused point his gun at Mothepu Mabandla, the deceased, who was on his (P. W. 5's) left hand side, and he shot him. The deceased fell and staggered as he tried to stand up, but P. W. 5 left him and went back to the chiefs place. Griffiths Mokete was ahead of him but the witness eventually caught up with him. Griffiths showed him where he was shot on his hand and a hole on his blanket where the bullet went through before hitting his second finger cutting the nail of the small finger.


It would seem that P. W. 3 had left the scene with Semethe Rasethuntsa to the chiefs place earlier than P. W. 5 because P. W. 5 told the Court that they found P. W. 3 and Semethe on the way and helped to carry P. W. 3 to the chiefs place as he had an injury on his right leg, on the sheen.


When they arrived at the chief's place, they were referred by letter to the police. At the charge office as arrangements were being made for taking those who were injured to the doctor, the accused arrived. According to P. W. 5, it was at dusk though he could not be precise on time. Police detailed people through a letter to the chief to guard the dead body for that night and P. W. 5 was amongst those who guarded the body. The police visited the scene in the morning and came to realise that the person was dead.

The police took the dead body away. The witness showed that he had noticed that his horse was missing during the month of January 1997, around the 29th or 30th January. He only met accused's son on the morning of February 22, 1997, the day the deceased met his death.


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P. W. 5 explained that accused had two houses, and that as accused was shooting he was standing on the forecourt. The two houses faced one another. He showed that the deceased had fallen on the side of the house on the left, whilst still some distance away from the house. The distance was estimated at 30 paces.


Under cross examination the witness pointed out that he was not personally attacked but were attacked as a group by the accused. The witness had reported the incident of his missing horse to the police who asked him to look for his horse and promised too to assist him.


According to P. W. 5, he went to the cattle post in search of his horse on the 22nd February, 1997. He was not suspecting the accused or his son at that time. He did not go straight to accused's cattle post but went and slept at his cattle post. He had left home oh the previous day the 21st. When P. W. 5 proceeded to accused's cattle post in the early morning of the following day he already had some information.


When P. W. 5 proceeded to the cattle post he was travelling on horse back. P. W. 5 showed that when they came down from the cattle post with the accused's son, Marife, Marife was walking on his feet whilst he, (P. W. 5) was on horse back and were chatting to each other. He said he did not take Marife to the police but to the chief as the chief had instructed them to. It was put to the witness that they had assaulted accused's son and even broke his left arm, but this was denied by the witness. It also came from this witness that his cattle post was far from that of the accused, and that his cattle post was the furthest. It was also suggested that Marife must have been galloping like a horse as he was walking alongside men who were on


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horse back, but this was denied by the witness.


The witness under cross examination showed that he was amongst the group that went to call the accused on the last occasion. The witness did not deny that they had gone in a big number to call the accused and further showed he did not know why the chief sent such a big number to go and call only one man. He hadn't even bothered to ask the chief, but he was not amazed by that. The witness remembered one other occasion when such a big group of men was sent out by the chief to go and call a man who had fought his wife. The witness further showed that normally only two people are sent out to go and call someone before the chief, but more men would be sent out if a person was violent. They were according to the witness never told that the accused was one such a violent person.


P. W. 5 under cross examination, showed that he did not know the procedure of dealing with someone who failed to abide by the chiefs request. He did not know that such a person could be summoned for disobeying instructions from the chief. It was put to the witness that in fact their motive with his group was to bring the accused before the chief dead or alive. As the complainant the witness did not find anything bad for having been in the group of men who went to call the accused.


The witness told the Court that the chief had sent them but had warned them not to do anything to the accused. It was put to him that he was saying this for the first time, as he never stated that at the Preparatory Examination stage, but P. W. 5 said he remembered saying so even at the initial stage. The witness said he considered going to call someone and going to collect him to mean one and the same thing, but


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when he was told that in calling someone one is left with a choice but to collect meant to bring by force, he agreed. He then firmly showed that they were ordered to go and collect the accused, hence the large number.


The witness did not agree with the suggestion that the incident happened at night. According to P. W. 5 the accused was called before the chief for confrontation with his son, Marife, who was already at the chiefs place. When the group approached the accused's place, they were following different paths, 30 paces apart (estimated). As they approached Lebitsa and Lenka were ahead of them, with Lenka only 4 paces ahead of the witness as compared to Lebitsa who was 30 paces away.


The witness saw the accused come out of his house and standing on the forecourt at his place. The witness last saw the accused standing there 60 paces away from him. He heard the first gun report and said Griffiths was the first one to be shot. When taken to task on his evidence at P. E. where he had said he was only 6 paces away from the accused when he heard the first gun report, he said he meant that Griffiths was the first one to be shot at that ankle. He said Griffiths was the one closer to the accused as he was in front and his group had arrived first at the accused's place. Griffiths had not been in accused's group, but in another group which had taken a different path. The witness had said he saw the accused point his gun at Griffiths.


The witness then heard Griffiths ask as to why the accused was shooting at him yet he was not at his place and have not even heard what he was going to say to him (accused). It was thus put to the witness that P. W. 3 had heard something different


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from what the witness heard, namely that accused said, "why shoot at us". The witness then told the Court that his statement was the one which was correct. According to P. W. 3 he was the one who was shot first, but P. W. 5 said Griffiths was shot first so that the witnesses had seen things differently. The witness went further and told the Court that as the accused shot at those two people he just stood still where he was and only walked away thereafter. The witness gave the Court the impression of being a very brave man. It was put to the witness that at the Preparatory Examination stage he had said they ran away on hearing the gun report, but the witness showed that that statement was wrong as he could not remember ever running away.


Under cross examination P. W. 5 showed that it was not true that the accused was attacked from both sides. It was also put to the witness that the accused did what he did in self defence as he was attacked by a group of men who even threw stones at accused's place damaging his property and at the same time shooting. This was denied by the witness. It was also suggested that the accused did not go to the chiefs place because it was already at night, but the witness also denied this.


The witness was shown a photo showing where the deceased had fallen after he was shot, but he denied that that was where the deceased fell. The witness even made a mark on that photo to indicate where the deceased fell, which was a place behind the rondavel. On that photo also the witness showed the two paths from the chiefs place going to accused's place in between them. The witness was standing on the right side opposite to where the deceased was. It was therefore suggested to the witness that the idea of following two different paths to accused's place was to


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surround them, but this the witness denied. Finally the witness told the Court that he was in the company of Lenka as he proceeded to the cattle post and that he never found his missing horse to date of hearing of this case.


P. W. 6, Lenka told the Court that he knew the accused as his co-villager, and remembered that during the second month of a certain year, they had gone up with P. W. 5 to search for his missing horse. His animals and those of P. W. 5 used to graze together.


The witness and P. W. 5 went up to the cattle post in search of the horse. They had met with one man first at the cattle post, and later met with one Marife who when asked about the horse showed that though he never saw the horse, he knew where it was. Marife when asked about the whereabout of the horse showed that he had heard his lathee say that he wanted to take that horse.


According to P. W. 6 the suggestion of going home with Marife came from Marife himself, and indeed they went back home with him. On their way back home Marife suggested that they should go before the chiefs place not to his home as his father would fight him. Before the chief the witness explained why they were before him.


Ramahlele Thebe was sent out by the chief to call the accused before him. The messenger came back with a reply that the accused was said to be at the fields. The same Ramahlele was then asked to go on horse back and call the accused from the fields. He came back to say that the accused had promised to come. There were other


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two men who were sent for the third time to go and call the accused, their names were forgotten. They were requested to go and collect the accused according to P. W. 6, but the accused had told them that he was not coming.


P. W. 6 then told the Court that the chief asked them all to go and tell the accused that he was called. P. W. 6 listed eight people who were sent to go and call the accused, and he too was amongst the group. The witness gave out names of those whom he could remember and indicated that he had forgotten others. He said, as they approached the accused's place, he heard a gun report. He was then a distance of about 120 paces away from the accused's home at that time. As they heard the sound of the gun the witness saw P. W. 3 sit down and he too sat down. He then invited P. W. 3 to run away.


It was P. W. 6's evidence that they did not walk in a group to the accused's place but were scattered. He and P. W. 3 took the direction on the left side of the house where accused was. P. W. 6 had seen the accused outside his home on the forecourt before the shooting started. He could see that accused had a black object in his hand and could not see clearly as he was far. The witness heard P. W. 3 say that the accused had shot him. P. W. 6 then rose from where he was seated and ran back to the chiefs place, but before he left he had heard three gun reports. He went back and reported to the chief. Other men from the group also went back to the chief, but Mothepu Mabandla, the deceased never came back.


P. W. 6 noticed that P. W. 3 had sustained an injury on his leg, whilst Griffiths was injured on his finger. P. W. 6 was not amongst the people who kept guard over the


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The witness gave out names of the people whom he remembered who were in his company when going to accused's place. They were Thusang Mokete (P. W. 5), Ntsoeu Lebitsa (P. W. 3), Lenka Lenka (P. W. 6), Ramahlele Thebe who became P. W. 8 in (his case, Mothepu Mabandla (the deceased) Moyekele Semethe and the witness himself. As accused took out that something from under his blanket a gun shot was heard. He fired for the second and third time and the witness saw the deceased fall down.


When the deceased fell he was only 4 paces away from the witness. The witness then saw the deceased trying to stand up on more than one occasion and each time falling back to the ground. P. W. 7 then ran away to the chiefs place. He found Griffiths and P. W. 3 already there and both claimed to have been shot. P. W. 7 had only seen the deceased being shot but not the other two. The witness had observed when accused look out the object from under his blanket pointing it at the deceased and deceased falling down.


It was this witnesses' testimony that he had gone to the chiefs place because the chief had called them. According to this witness, they had gone to the accused's home when the cattle were coming home. When the group proceeded to accused's place some were in front whilst others came behind. There were two paths going there, one on the left side of the house and another on the right side of the house. The witness remained at the chiefs place when other men took those who were injured to hospital. He did not also go to keep guard over the dead body.


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deccased for that night. He only saw the deceased's body the following day at accused's place. The body was near the house on the left side, estimated at 7 to 8 paces away. He had not seen the deceased being shot. According to this witness the house near where the dead body was had no windows. The witness observed the injuries on the dead body, a wound on the right side of his chest below the right breast. Another wound was behind the left shoulder.


The witness told the Court that he was charged of assault on accused's son but he was acquitted. He went further to say that it was his first time to see such a large group being sent to go and call only one person. He said it was in the late afternoon when the cattle were coming home, when they went out in a group to call the accused.


In cross examination the witness told the Court that they left for the cattle post a day before the deceased met his death. He showed that when they came down with the accused's son from the cattle post he was on horse back so was P. W. 3, but Marife was walking on foot. They had left the cattle post in the morning and arrived at the chief's place in the afternoon. According to this witness the time that they took to get to the chiefs place from the cattle post was for a normal walk as their horses were taking a normal pace. It was put to the witness that accused was going to say it would take the whole day for one to travel from his cattle post to the chiefs place, and his response was that that wouldn't be the case if one walked fast enough. The witness explained that Marife was taken before the chief and not to the Police because he chose so. He denied that when they came down from the cattle post with Marife it was because Marife was under arrest, but said Marife was only assisting them in their search for the horse.


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It was this witness's response to questions put to him that for the many occasions that messengers were sent to go and call the accused, the accused never became violent. After the witness and P. W. 3 arrived with Marife at the chiefs place, the chief called out men of the village, but the witness showed he did not know why they were called, but later said they may have been called to come and listen to what Marife was going to say.


It was put to the witness that he was hiding something when he said he did not know why the chief kept on sending messengers to the accused yet the accused had made his position clear that he would not come. P. W. 6 showed that none of the men who went to call the accused was armed.


P. W. 7, Tau Baholo told the Court that he lived in the same village as the accused. He was also aware of the events surrounding the death of the deceased, Mothepu Mabandla. He was one of the men who were sent to call the accused. According to him it was a group of about eight men. This witness also told the Court that the accused's son had indicated that his father knew about the horse, but the information did not come straight from accused's son himself but from the chief.


The witness went further and showed that they had gone to accused's place in a group and that as they approached the accused's place he saw the accused take something from under his blanket. They were about 120 paces away from he accused as they noticed that.


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At the Preparatory Examination stage the witness had mentioned more than ten people whom he said were in his company when they proceeded to the accused's place, and this was put to the witness that he was now reducing the number conveniently, but he responded in the negative. According to this witness under cross examination, the deceased had fallen 15 paces away from the house. Though in this Court the witness told the Court that he saw the deceased fall, at the Preparatory Examination stage he had said he was told by some men that the person who was shot and fallen was in fact the deceased. The explanation that the witness gave to this was that the events happened a long time ago but could not dispute that he might have forgotten some of the events that took place.


The witness also told the Court in cross-examination that when the deceased was shot he was facing away from the accused. The witness denied when it was put to him that he and his group were intending or had intended to surround the accused's house. It was also brought to the witness's attention that for most of the crown witnesses in this case, the issue of deceased falling and rising so many times was never raised at the Preparatory Examination stage, but was being raised for the first time before this Court, thus giving an impression of being a fabrication.


Again it was put to the witness in cross examination that in fact accused was standing at the door of his rondavel when he fired two shots, not at the forecourt as the witness said, but in answer the witness said that he saw him standing at the forecourt. It was also put to the witness that accused was going to say that he fired in response to an attack against him and his property, to which the witness answered by saying they had not intended to go and fight but accused fired even before he got


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to know why the group was there.


What again was put to the witness was that amongst other things, the accused had heard gun reports from the group and he became apprehensive that his life was in danger, but the witness showed that none of them had a gun in his possession despite him not having searched them. Accused was going to say that stones were thrown at his house, resulting in the damage to the window. The witness was in agreement with the suggestion that accused did all that was possible in order to protect his life, and that accused did not pursue them after they had run away but remained where he was at his place. It came out from the witness that when he ran away he had not known that the deceased never got up from where he had fallen. The witness never observed any shootings from his group, neither the throwing of stones at accused's house.

The last witness, P. W. 8 Ramahlele Thebe whose evidence was to the effect that both accused and the deceased were his co-villagers. He remembered the events which culminated in the death of the deceased. He had seen on that day as he was still at his home, P. W. 5 and 6 driving Marife Mashalane to the chiefs place, since the witnesses's home was not far from the chief s place. After P. W. 5 and 6 arrived at the chiefs place, the chief called him (P. W. 8). He was ordered by the chief to go and call the accused. He came back with a reply that accused was said to be at the fields. The report came from accused's wife. The chief then asked the witness to ride his (chiefs) horse and call the accused from the fields. According to this witness he did not know why he was being called. The reply was that accused promised to come.


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After some time, the chief detailed yet two other people to go and call the accused. It was Griffiths Mokete and Tebelo Matete, who came back with the reply that accused had promised to come in the morning. It would seem that by that time, many people had then gathered at the chief s place, hence the statement by the witness that, "the chief then detailed the many people who were at his place to go and call Chaka. " Amongst the group he remembered, Thusang Mokete (P. W. 5), Lenka Lenka (P. W. 6), himself (P. W. 8), Tebelo Mokete, Semethe Rasethuntsa, Lebitsa Ntsoeu (P. W. 3), Griffiths Mokete and Tsiu Matete.


According to this witness, they did not go to accused's place at the same time. He was amongst the group that came last. As the men who were in front neared accused's place and the witness still some 250m away from accused's place, gun reports were heard. As the gun sounded the witness saw the deceased fall down, and when he fell the accused was still standing at the door of his house. The witness then said, "we then fled".


It was only when he was at the chiefs place that he noticed that P. W. 3 and Griffiths Mokete were injured. The injured were referred to the police. To P. W. 8's observation, the deceased was in front of the group. He fell in front of the accused's house 200m away. The witness explained that, to get to the accused's place they had to go up. The deceased was shot as he approached the accused' door. The witness only observed the injuries on the deceased the following day when the police had already arrived.


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He observed a wound below the left side of the breast and another on the shoulder. The witness had not asked why the chief had sent so many men just to go and call the accused. He had seen Marife at the chiefs place but did not observe any injuries on him.


The witness told the Court further that there was a kraal near accused's place on the left side, belonging to one Tankiso, and that the deceased was near that kraal when he was shot, a little above where the deceased fell.


Under cross examination the witness showed that he saw Marife under arrest and tied with a rope on both his hands. It also came from this witness that the chief had detailed them to go and arrest the accused. The witness went and stood at the court's door to demonstrate how the accused stood as he fired. The roof of the door was above his head.


According to this witness he was not armed but that the other two men were armed with sjamboks as they were on horseback. He said he clearly saw the sjamboks as he was in the company of those men. When asked about the time when they proceeded to accused's place, the witness said it was in the late afternoon, before sunset, just about sunset.


he witness also informed the Court that he saw people walking within the neighbourhood of the accused's homestead who must have seen what was happening. The witness had not observed any throwing of stones at accused's house, neither did he see any damage to accused's house and windows. According to this witness, the


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chicf had accompanied them to the accused's place.


At this juncture, by consent, the medical reports for Griffiths Mokete and Lebitsa Ntsoeu (P. W. 3) were handed in as part of evidence in this case, and were accordingly marked as such, exhibits "B" and "C" respectively and were read into the machine.


Exhibit "B" showed a 1 x 2. 5cm laceration, approximately 1 x 2cm abrasion middle phalanx, lateral aspect of the finger was 1 x 3cm deep laceration middle phalanx of the middle finger nail. The little finger was lifted up. The x-ray showed the fracture of the distal phalanx of the little finger. The cause of the injury was a missile, probably a gun shot. The degree of force used to inflict the injury was severe, and the degree of danger to life was also severe. The degree of immediate disability was also severe.


Exhibit "C" for P. W. 3 showed a 1 x 5cm in diameter wound on the lateral aspect of the right leg. 1 x lcm vertically oblong wound on the anterior aspect of the right leg (exit). The x-ray showed a fracture of tibia midshaft. The cause of the injury as above was a missile. Both the degree of force used to inflict the injury and the degree of danger to life were severe. As for the degree of immediate disability was moderate, but the degree of long term disability was partial.


The post-mortem report was also handed in by consent. It was read into the machine and marked Exhibit "D". This report showed the cause of death as being due to a cardio-respiratory failure, secondary to massive cardiac and lung injury. The


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deceased had been shot in the chest with entry wound underneath his left nipple and another irregular wound with surrounding swelling in the right infra scapular region.


The firearm Examiner's report was also handed in by consent and after being read into the machine, marked Exhibit "E". The report was prepared by the late Lt Col. Tlhabi John Telikhunoana (may his soul rest in peace). In his report the officer showed that the following were handed over to him for examination:


  1. 1 x 9. 0mm Tanfoglio pistol s/no. AB 19805

  2. 2 x 9. 0mm x 19. 0mm fired cartridge cases.


As a trained officer in the microscopic examination of fired bullets and cartridge cases, firearms mechanisms, photomicrography and restoration of obliterated numbers on metal, with eleven years experience, he had examined both items in (1) and (2) above. He had found the firearm to be still in a good working condition after he had fired cartridges therein for test purposes. The report showed under microscopic examination that the fired cases in (2) above had been fired from the pistol in (1) above.


After the crown had closed its case, the accused chose to go into the witness box to testify. In his evidence after being sworn in the accused told the Court that on the day in question, the 22nd February, 1997, he was at home with his wife and two of his children. The other two children were at his cattle post at a place called Reli. According to the accused it would take him a day and a half to get to his cattle post on horseback and full two days on foot.


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On the morning of the day in question the accused had proceeded to a place called Mechalleng Ha Mohale on horseback. He went and came back in the evening. To get to that place he had to cross Mechalleng river. As accused crossed that river the horse stopped in the water to drink. As the horse was drinking the accused felt that it slipped on something on its left leg. It would seem that the water was as clear as crystal because the accused said, on looking in the water he realized that the horse had stepped on something black.


He must have come down from his horse as he said he then picked up that black object only to find that it was a gun an its magazine with seven rounds. The accused put the gun in his saddle bag and proceeded on his way. He came back home at sunset. It was the accused's evidence that he had not intended to keep the gun for his personal use, but to take it to the police, but that this did not happen as his intentions were overtaken by events.


At his home at the forecourt, as the accused was busy unsaddling his horse, he was informed by his wife that she had been to the chiefs place and had seen his son Marife. But before the wife could explain any further, the accused saw the deceased arrive at his place. He was in the company of Tau Baholo (P. W. 7). The deceased announced his presence by saying, "knock knock", warning me to expel the dogs for them. The accused expelled the dogs allowing the visitors then to come nearer his home. The men told the accused that he was being called by the chief, but the accused turned around and replied that he would come in the morning.


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According to the accused, these chief's messengers being men he already knew were just normal but somehow drunk. They told the accused that they did not know why he was being called by the chief. The accused then told the men to go and tell the chief that he would come in the morning as it was already late at night. Even besides, the accused told the Court that he was also feeling tired from his journey. Accused went further and showed that the men left and he unsaddled his horse and went inside his house. He said as the chiefs messengers arrived he had to wait and listen to them.


The evidence went further to show that, at dusk when the accused was in one house with the children, and his wife in another house, he heard the dogs barking on the outside as if they were seeing something nearby. It was already dark. As the accused went out, he heard a sound of a gun. He heard the same sound the second time and heard the dogs whining from a distance. As he heard the third gun report, the accused thought of the gun in his possession. He took it, loaded it, and cocked it. The accused was then standing at the door, and he observed stones being thrown at his house and at the door.


As the accused heard the fourth gun report he fired twice in the air, still standing at the door step. He heard the throwing of stones subside as he fired in the air. There remained silence thereafter. The accused showed he was very frightened and had no way of escaping.


The accused told the Court that it was not true that his wife encouraged him to shoot at the bastards. He said it could not be true because his wife was not with him


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but in another house. Accused explained that he had no other means of preventing the imminent danger other than acting as he did. He said he did not even identify who his attackers were, so that it could not be true that he shot at Griffiths directly as P. W. 3 told this Court. He also said it was not true that Griffiths even remarked why he (accused) shot at them yet they were not at his place. He never heard such words from anyone.


According to the accused, his attackers did not wait to introduce themselves, but that as they came they were already shooting. The accused then went to report to the police immediately thereafter, where he was kept for two weeks, only to be remanded on the Monday following. He showed he has never been charged of theft of a horse neither was his son. According to the accused, when he finally saw his son, he had broken the fingers of his left hand, and was treated at Queen II hospital. Accused's rights to legal representation were never explained to him. He was even left behind at the charge office when police visited the scene.


The accused had been home for 1 and a half hours from his journey before he was attacked, and this was before he could report to his wife about the gun he had found in the river. The accused confirmed that when he was attacked he still had his blanket on but that he never put it off at any stage.


The accused's wife had told the accused that their son Marife was at the chiefs place and that he had a swollen face. Neither the accused nor his wife knew why their son was at the chiefs place, but according to the accused he thought that may be Marife had gone to report about the animals at the cattle post. The estimation given


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by the accused from his home to the chiefs place was 350m, but that the place was out of view. He also estimated the distance of his home to the charge office at 5 to 10kms.

The explanation given by the accused as to why he chose to go to the police instead of going to the chief was that no one ever bothered to come and check on him even after it was realized that his attackers had left, but chose to run to where he thought he would get a better protection.


When accused was on his way proceeding to report to the police, he heard people talking and thought they were the same people who had attacked him. He went and hid the gun. The reason for hiding the gun, he said, was that he was afraid they would take the gun from him yet he was eager to hand it over to police and the gun was no longer working, presumably he had run out of ammunition, or was not familiar with the use of that gun.


Accused said, he had met many people on his way to the police and further showed it was not true that they found him at the charge office. He said he did not surrender himself to the police but went there for protection and safety. Accused reported to D/Sgt Tsita why he was there and according to the accused, Tsita might have explained to P. W. 2. Accused never talked to P. W. 2 in explaining where he had hidden the gun.


It was put to the witness that only two shells were found at the scene, and the accused had testified to the effect that he had fired twice in the air. The accused had


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realised that the gun was no longer working after firing two shots. All the crown witnesses who testified before this Court were known by the accused as men from his village.


When asked to give the reason why men from his village attacked him, the accused showed he did not know the reason for their behaviour. The accused also said it was not true that he was called from the fields. The report that the accused gave to the police was that some unknown people had attacked him at his place, but accused was only surprised to find that he was being arrested. He was never even told why he was being detained in police custody.


The accused explained the reason why only two shells were found at the scene yet he had shown that even his attackers had also fired. He said the other shells might have fallen amongst the bushes which were at the place where his attackers fired from. Accused also showed that shells had been found at his forecourt. The accused explained that as he fired he was not aware that he could hit at someone but that it could have happened. Accused was asked as to why he went out and stood at the door when he heard the gun reports, he replied by saying he did not think of exposing himself as an open target, but he thought he was allowing himself chance of easily escaping should his attackers think of burning his house.


The accused was asked to demonstrate and show how he shot in the air. He took a pen and pointed straight ahead of him and showed how he fired. The accused pointed straight ahead of him and was told by the Court that what he did was different from shooting in the air. He explained that that's what he understood shooting in the


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air to mean. And this was the defence case.


In analysing the Crown's evidence the Court learned that P. W. I had been on patrol for two weeks and lost his gun bearing the same serial number as one picked up by the accused. It was possible that P. W. I lost his gun as the horses were drinking, but he had said he could not be sure as to where and when his gun went missing. He only gave two possibilities, namely that either it fell as the horse was drinking or as the horse was galloping and he falling off that horse. The same gun was picked up by the accused the following day as his horse was also drinking at the river at the same spot.


P. W. 2 as the investigator in this case saw the accused at the Charge Office as he had surrendered himself. The accused had no gun with him as he so surrendered himself, but the explanation from the accused led the police to a place where accused took out a gun from under a rock near the foot path and the road. This confirms the accused's story that he had hidden the gun on the way as he was proceeding to the Charge Office. According to him, he went there for safety not to surrender himself. He hid the gun for fear that his attackers were going to take it from him.


The story of P. W. 2 also confirmed as true the explanation by the accused that he could not be charged of unlawful possession of that firearm because he had only picked up that gun from under the water at the river and was intending to hand it over to the Police soonest. The gun was not found hidden at home but on the way to the Charge Office. The gun was the very one which went missing from P. W. l's possession the previous day and bearing the same serial No AB 19805 as that of the


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occused.


On visiting the scene of crime, two 9mm shells were found at accused's place, at the forecourt. The body of the deceased was found lying 100 paces away from the accused's place. On inspecting the body an open wound on the left side of the chest was found and another on the right shoulder at the back. Because we had not been told that the bullet still remained trapped in the body, I took it that one wound was an entry point whilst the other was the exit wound, meaning that the deceased was shot only once.


P. W. 2 had shown that the accused had explained to him that he shot the deceased in the process of their quarrel. The Court too on looking at the Crown's evidence in its entirety is inclined to belief that in fact the accused was attacked on that fateful evening. The Crown witnesses wanted the Court to buy their story that they had gone there just to go and call the accused. One might begin to wonder as to how the chief of that area conducted his chiefly administration, sending such a huge number of men for calling just one person.


The Crown witnesses all wanted the Court to believe that the shootings happened in bright day light. They all said it was before sunset, when the cattle were coming home. Accused on the other side told the Court that it was already dark hence the reason why he told the chiefs messengers that he would come to see the chief the following day. P. W. 2 had no quarrel with a suggestion that, in fact the accused proceeded to the Charge Office to seek refuge as he had been attacked; and that the quarrel had not brought accused and deceased face to face.


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P. W. 5, Thusang Mokete told the Court that he saw sparks of fire coming out from the mouth of the gun as the accused fired, but failed to negative the fact that such sparks could only be visible if the shooting was done at night. The Court was thus invited to examine the probabilities in the light of the evidence put before it. It went to confirm the accused's story that the group came to his place when it was already at night hence why he chose to see the chief in the morning. The visit by the police of the scene of crime the following day also tended to confirm the accused's story that, in fact, it was already dark.


What also is worth mentioning in this case is the fact that all the Crown witnesses who testified before this Court were the very same people who were sent by the chief to go and call the accused, which means that they are witnesses in their own activities. The Court was told that there were people in the neighbourhood who must have witnessed what happened, but were never called by the Crown as independent witnesses to come and testify. Because of their participation in the whole scenario, the risk of minimising their role in this case cannot be ruled out.


In most instances these Crown witnesses have been very evasive if not deceptive, for instance, they had all, except for P. W. 8, shown that they did not know why (he chief was calling the accused. Even the very same people, P. W. 5 and 6, who came down with the accused's son from the cattle post. They wanted the Court to buy their story that they were walking normally with the accused's son, yet they both were on horseback and Marife was walking.


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The accused has told the Court that he had been informed by his wife that she had seen their son Marife, at the chiefs place with a swollen face. But the two Crown witnesses' evidence was to the effect that Marife was only going with them in an endeavour to assist them in the search for P. W. 5's horse. It came out from both these two witnesses that they were even charged of assault on Marife, but were acquitted, and as we know, acquittal may mean so many things.


There were two different stories given, as to why Marife was not taken to his home but to the chiefs place. According to P. W. 5 it was because the chief had instructed them to bring Marife before him, but the other explanation was that Marife was the one who asked P. W. 5 and 6 to take him before the chief as he was scared his father would be angry with him for having came out or having exposed their secret. Meaning it was not true that they got the information concerning Marife at P. W. 5's cattle post. The truth of the matter is, they left home already knowing that they were going to arrest Marife.


I have already shown that the Crown witnesses were very evasive. This came out also where each one of them came out with a different number of people who had gone to call the accused on the chiefs instructions. But it became evident that there were more than ten people, able bodied men, as the defence counsel put it. P. W. 5 had finally agreed under cross examination that they had been ordered to go and fetch the accused, hence the large number of men.


These able bodied men all said they were not armed with anything. Isn't this deceitful? We have been told that P. W. 5 and 6 had just arrived from the cattle post


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on horseback. The Court here can take a judicial notice of the fact that a Mosotho men uses a sjambok once on horseback. Here we are talking of men living up in the mountain areas of Mokhotlong where most Basotho still live their traditional way of life.


Even P. W. 6 showed that they had been asked to go and collect the accused. P. W. 6 had said when coming down with Marife their horses were taking a normal pace but when it was put to him that it would take one the whole day to complete that journey, he changed to say that it wouldn't be so if one moved fast enough, meaning that their horses were galloping fast for them to have only taken half day. How about Marife walking along with them on foot?


P. W. 7 showed that accused did all that was possible in order to protect his (accused's) life. He even showed that accused never pursued the group after the group had run away.


It only came out from the last Crown witness, P. W. 8 that when they proceeded to the accused's place at least P. W. 5 and 6 still had their sjamboks in their possession as they had just arrived from the cattle post on horseback. This witness also revealed to the Court that in fact they went to accused's place with a clear intention of arresting him, but not just to go and call him.


That clearly answered the question why they proceeded in that big number to accused's place, which was the only reasonable inference to be drawn under the circumstances. We have not been told that the accused was in any way a violent


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person.


According to the evidence by the crown witnesses, the accused had on more than one occasion that day, refused to come when called by the chief. The chief had an option open to him to follow, that of taking him before the Courts of law for disobeying lawful instructions from his chief, Rex v Leteketa Rantletse 1926 - 53 HCTLR p226. I have already shown that the manner in which the chief conducted himself clearly indicated that he had sent his men to go and arrest the accused, but not to call him. But even there, though the chief had powers to arrest, as people charged with the duty of maintaining law and order in their respective areas, it does not seem that the arrest or calling of the accused by the chief through his men was done with that purpose in mind. This was discouraged in Rex v Napo C of A (CRI) No 13 of 1968 (unreported). The case of Thole en 'n Andre v Minister of Justice and Another 1967 (2) PH J28 (N) it was stated that, "Those chiefs who act contrary to the fundamental principle and are brought before the Courts of Law will be treated in the manner they deserve. "


The accused may have exaggerated a bit when saying that some of the Crown witnesses carried firearms, but the circumstances point to an intended attack of some sort by the group by whatever means. That obviously called on the accused to employ whatever means at his disposal to defend himself and his property. Rex v Kali 1985 -90 LLR 264. He said the group were throwing stones at his house and had to prevent them from coming nearer him.


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From the evidence of the Crown witnesses, the Court was made aware that a situation of necessity was created which compelled the accused to feel he was going to suffer an injury which he could only avoid by breaking the law.


In criminal cases, where self defence is raised, the Crown must negative that defence beyond a reasonable doubt, and the Crown does not discharge that onus if the version of the accused though improbable might reasonably possibly be true. The story of the accused need not be believed but accepted if reasonably possibly true. Lehoqo v Rex 1891 (1) LLR163. The gun he used had just been picked up from the river, He even took it along when going to seek for protection and refuge.


In Rex vs Remaketse Ntabe 1985 - 90 LLR 187, it was said that the defence if successfully pleaded entitled the accused to an acquittal, but if however depending on the circumstances of the particular case it be found that the force used was rather excessive, a verdict of culpable homicide must be returned.


In this case, the Court having considered the whole of the evidence is of the view that the version told by the accused might reasonably be possible and that the Crown has not proved beyond a reasonable doubt that the killing of the deceased was illegal. Considering the number of men who went to the accused's place, and the option which was open to the chief when accused refused to come and the unholy hours that the group chose to go to accused's place, the accused was quite entitled to act as he did in self defence.


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I therefore find the accused not guilty, and he is acquitted and discharged.

My assessors agree with my finding.


A. M. HLAJOANE

JUDGE


For the Crown: Ms Ntelane

For the Defence: Mr Phoofolo