R v Ramoepana and Another (CRI/T/41/2000)

Case No: 
CRI/T/41/2000
Media Neutral Citation: 
[2003] LSHC 84
Judgment Date: 
6 August, 2003

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CRI/T/41/2000

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


REX

vs

'MAPELAELO RAMOEPANA MOSOEU RAMOEPANA


Judgment Delivered by the Hon. Mrs Justice A, M. Hlajoane on 6th August, 2003.


The first accused had been indicted before this Court jointly with her husband, accused 2, on two counts of murder, one count of attempted murder and the last count of malicious damage to property. The second accused passed away in May 2000 and the trial proceeded against 'Mapelaelo Ramoepana alone.


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In count 1. it was alleged that upon or about the 28th day of September 1996 and at or near Hleoheng, in the district of Leribe, the said accused did each, the other or both of them unlawfully and intentionally kill Malefetsane Ramoepana.


In count II, it was alleged that upon or about the 28th day of September, 1996 and at or near Hleoheng in the Leribe district, the said accused did each, the other or both of them unlawfully and intentionally kill 'Manthuseng Ramoepana.


In count III, it was alleged that upon or about the same, date and year as in above counts and at or near Hleoheng in the Leribe district the said accused did one or the other or both of them unlawfully and with intent to kill, assault Matseuoa Ramoepana by shooting her with a firearm on her body.


And on the last count, count IV it was alleged that upon or about the same time and place as in the other preceding counts, the said accused, one or the other or both of them did unlawfully and intentionally injure and or damage the door and windows of the house belonging to one Malefetsane Ramoepana, the property or in the lawful possession of the said Malefetsane Ramoepana with intent thereby to injure the said Malefetsane Ramoepana in his property.


Before going; into the evidence in this case I may wish to state briefly the events as slated by the Crown that are a sequel to this trial. There were two accused persons charged in this case, who were husband and wife. The other accused, accused's husband has since passed away. The two deceased persons in this case were husband and wife. As can be seen from their surnames, the accused persons and both deceased


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are relatives staying in the same village. So far so good with this highlight. The charges were put to the accused and she pleaded not guilty to all four and this was in accordance with her counsel's instructions.

In terms of Section 227 of the Criminal Procedure and Evidence Act 9 of 1981, evidence at the Preparatory Examination (PE) of P.W.I Ramoepana Ramoepana, P.W.3 Mahlomola Ramoepana, P.W.6 who was also P.W.12 Ketso Ramoepana, and P.W.10 Lt/Col. Telukhunoana were admitted by the defence and accepted by the Crown. The depositions were read into the machine to form part of the record in this case.


P.W. 1 at the PE, Ramoepana Ramoepana had told the Court that, he resided at Tabola in the Leribe district. He stayed at the separate village from that of the accused though he was related to the accused in this case. The deceased used to stay with the accused in one village, their house's i.e. accused's and deceased's, being only 40 metres apart with no other houses between them.


P.W.1 was the oldest person in the Ramoepana family. He had not received any complaint from any member of the Ramoepana family prior to 28th September, 1996. He received some information in September 1996 about the deceased's death. Following that information he proceeded to deceased's place where on entering the house, he observed blood on the floor. He also observed holes on the walls, gunshot's holes. From the deceased's place, the witness proceeded to the accused's place but did not find anyone at home.


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It was on the 2nd October, 1996 when the witness identified the bodies of the two deceased persons at Hlotse Hospital as being that of husband and wife, Maleletsane Ramoepana and 'Manthuseng Ramoepana respectively.


The other admitted evidence was that of P.W.3 at the P.E proceedings, Mahlomola Ramoepana, who had told the Court that as a villager of Ha Monyane where both deceased lived, he knew both deceased in this case as his relatives. He remembered that in 1996 accused's husband, Mosoeu Ramoepana was a member of LDF. His home was adjacent to that of the deceased's.


Prior to the events of this case, the witness had received some information concerning the fight over a field. As a family they had resolved that it was wrong that the field in issue had been given back to the headman. The accused and both deceased persons had been before the Courts of Law about the same field and the Court had decided in favour of the deceased.


Late in September of 1996 the witness had received some information which he followed and proceeded to the scene of crime. When he got there he found the accused's husband standing at the forecourt at the deceased's place with a firearm in his hand. Accused's husband had advised the witness to go back to his home and the witness tried to resist but was eventually advised to obey the order, and did go back to his home. At that time the witness did not see the accused in this case. The witness had been standing 4m away from deceased's home and said the door for the house was left open and the windows were broken.


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On his way hack home the witness met a group of people going to deceased's home. He joined the group and went back to deceaseds' place. This time he entered the deceaseds' home and found 'Manthuseng in the house in a pool of blood. She was already dead. Her husband was also on the floor but was still alive. Their daughter was there also, very confused and had also sustained injuries. The matter was reported to Police.


It is worth mentioning at this stage that it had been stated earlier on that the evidence of P.W.3 Mahlomola Ramoepana at the PE was going to be admitted but it came out that as the evidence was read into the machine some problems surfaced. The problem entailed a witness who when his evidence was recorded by the Magistrate had not been called by his name but as Prosecution witness so and so, P.W.3. This necessitated the Crown to apply for calling that witness to come and clarify the identity of the person not called by name but as P. W.3. This was objected to by the defence who felt that they were only going to be allowed and restricted to cross examining that witness on the issue of identity only.


The Crown on the other hand pointed out that the witness could be cross examined on anything and not be confined to the identity of the witness only. The Court allowed the witness to go into the witness box to give his evidence. After he had given his evidence, the defence then indicated that they were no longer admitting that evidence at PE.


The deposition of P.W.10 at the P.E Lt/Col. Telukhunoana was also admitted and read into the machine. His evidence was that, he lived at Leribe at the time of the


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hearing of the P.E. He was stationed at Police Headquarters in 1996. One of his duties was to carry out ballistics tests on firearms alleged to have been used in criminal activities. He had been given Exh "1" (9mm pistol) and Exh "2" (dead bullets and shells) by Police Officer Motloli for tests. He duly carried out the necessary tests after which he prepared a report. The report was read and explained to the accused, and was handed in as an exhibit and was marked as such. The witness had told the Court that it was possible that a bullet could be affected by the skull. Also that the firearm, Exh "1" could shoot at a distance of 50 metres. And that that firearm was a powerful one especially if the target was close.


After reading the admitted evidence the Crown called in P. W. 1 Dr Isaac Molefi Seqhobane, who after he was sworn-in had told the Court that before he was transferred to Thaba-Tseka as a Medical Doctor, he was working at Motebang Hospital in Leribe. He left Motebang Hospital in 2000. As a district Medical Officer he was doing other administrative duties. He was custodian of hospital property which included records.


After looking at the documents he had been given by the Crown, the witness showed that the two documents were post-mortem examination reports for Maleletsane Ramoepana and 'Manthuseng Ramoepana respectively. The witness further showed that the first report had been prepared by Dr Sane on the 2nd October, 1996. The report showed that the deceased died of a gunshot wound on the abdomen (Intra abdominal haemorrhage). According to the report death occurred on the 28th September. 1990.


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The second report related to 'Manthuseng Ramoepana and was prepared by the same doctor. Unfortunately the report had not shown when death had occurred. The cause of death was due to a gunshot wound anterior part of the neck, the wound which went through the throat causing blood to flow into the trachea. The doctor who prepared the reports was no longer within the country. The doctor claimed that since the reports were from his office he wished to hand them in as part of his evidence. The reports were handed in as exhibits and marked as such.


The other reports which were also handed in by the witness were the three Police Medical forms styled LMP 47. The first one related to 'Mapelaelo Ramoepana. The report showed a 2cm wound on the right arm, a 2cm wound on the right hand, also a 2cm wound above the right knee. It was shown that a sharp instrument could have been used to cause the injuries. The patient had been examined by Dr Ntene.


The second report related to Mosoeu Ramoepana and showed multiple scalp lacerations. 5cm laceration frontal region, 5cm laceration posterior right parietal region, 3cm laceration left forearm. The report had been prepared by Dr Mokhesi.


The third report was that of 'Matseuoa Ramoepana which showed an entry wound on

the right side of the chest with exit on the left side of the chest, 5cm from the midline. Another wound was behind the left ear and was a gun shot wound. The patient was attended by Dr Ntene. All these reports were handed in as part of the evidence and were marked as such.


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P.W.2 Palaelo Ramoepana told the "Court that she was the daughter to the accused person. She was from a feast on the day in question with other people. She had seen one 'Matumelo running and also remarking about a fight between the deceased, Malefetsane and Mosoeu (accused's husband). As she heard that, the witness ran to her home calling out to her mother, whom she did not see at the time.


The witness then went to where the fight was taking place and when she got there she found the deceased, 'Manthuseng and Malefetsane, her husband, both assaulting accused's husband, Mosoeu Ramoepana. 'Manthuseng was using a sword whilst her husband was only using his hands.


According to P.W.2. the accused arrived when the fight was already on. The deceased, Malefetsane fired and the accused then went back to her home and collected a firearm. The accused then fired twice in the air. The witness could not see what happened thereafter as she left for her grand-mother's place.


In cross examination, the witness showed that she was very confused on that day as a person who easily gets confused when unusual things happen. She even confessed that she would usually lose her good judgment under such circumstances.

P.W.3's evidence, 'Maneo Ramoepana was to the effect that she was the maternal aunt to both deceased persons, and the grand-mother to the accused. She had been invited by the deceased Malefetsane to his place for some beer. Since the witness was from a feast, she was already drunk. She however could still remember that she had seen both deceased enter their house after she was already seated in their


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house.


Her evidence went further and showed that the deceased locked the door after they had entered the house. She then saw the deceased 'Manthuseng, pass over to the bedroom and as she did that, the witness heard a gun report from the rear window outside the house. She then took refuge under the table. She then heard another gun report at the bedroom window, still outside. After the third gun report, the witness heard the accused remark that she had run out of bullets. According to this witness, that was the time that she asked the deceased Malefetsane to open for her so that she could leave lor her home.


P.W.3 showed that she did not know as to when 'Matseuoa Ramoepana had come into the house. She only saw her come out from the bedroom to come and hide under the table in the kitchen. Indeed the deceased Malefetsane opened the door for P.W.3 who left for her home leaving both deceased persons and 'Matseuoa in the house. When she got to the outside, she only thought of running to her home where she went straight to bed and slept without reporting to anyone.


She only visited the scene the following day in the morning, only to find the deceased 'Manthuseng, dead in her bedroom. She could also observe that the windows for deceased's house were broken.


In cross-examination. P.W.3 showed that she was drunk on that day as she was from a feast where she had taken both sesotho beer and beer. The witness indicated that she sobered up as she heard the gun reports.


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According to P.W.3 the accused never got into the house whilst she was there, but that accused were shooting from outside. In all fairness to her, the witness showed that she did not see the accused shooting but only heard gun shots. She only heard the accused's voice as she claimed that she had run out of bullets. The witness had seen the accused disappear from the window of the kitchen.


P.W.4 Ketso Ramoepana in his evidence showed that the deceased persons in this case were his parents. On the day in question he was from work and learned when he got home that there was a commotion in the village. He met people driving another person in a wheel-barrow. On close check he realized that the person driven was his sister who was covered in blood. The witness was in a vehicle when he observed all these.


The witness did not know what had happened, but when he got home he found his father. Malefetsane lying in a pool of blood in the kitchen, but he was still alive. He observed injuries on the face and body of the deceased. The witness showed that the deceased could still talk but with a low voice. The only words that he heard was when deceased told him that he was tired, and as he was saying that he (deceased) called out P.W.4's name.


The witness then went into the bedroom going to get something to put on light in the house as it was gelling dark. The witness found his mother, 'Manthuseng in the bedroom and he said he could realize that she was dead. Police van arrived and Malefetsane was taken to hospital. 'Manthuseng was left there for the whole night. Police came again in the morning and took photos of the scene and the deceased who


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had according to the witness, holes all over her body. The body was then taken away by police.


According to P.W.4 there were holes all over in the house, on the units, wardrobe and the windows too were broken. It was P.W.4's evidence that the source of the quarrel between the deceased persons and the accused was a field. He showed that the case was taken before the Courts of Law and his father, the deceased won the case. The witness handed in the judgment from Tsifalimali Central to support his statement about his father winning the case. The judgment was handed in as an exhibit and was marked as such. In cross-examination the witness clearly showed that he did not know what could have sparked the confrontation for that day as he was not there when it started.


P.W.5 'Matseuoa Ramoepana after she was sworn-in told the Court that both deceased persons in this case were her parents, and that accused's home is near to her home. The witness told the Court that she was still at home on the day in question, visiting a place not far from her home. As she was there, she heard the husband to the accused calling out to the accused to bring him his gun so that he could go and shoot at Malefetsane, who is P. W.5's father. The witness showed that as accused's husband said these he was at their home where P.W.5 could still see them.


The witness had earlier left her father at home and as she heard the accused's husband say those words, she left in an effort of going to look for her mother to inform her of what she had just heard. She did find her and reported to her. Her mother in turn asked her to go and tell her brothers where they were at a feast. Her


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efforts to look lor her brothers were without success. She then decided to go back home.


P. W.5 then said, as she entered the gate, she heard a gun report and the sound came from accused's home. She found both her parents outside the house with one Nkhono 'Maneo. They all rushed into the house on the sound of the gun report and locked themselves in. As the shooting continued, the witness and Nkhono 'Maneo hid under the table in the kitchen, her father stood at the door and her mother went into the bedroom. The witness also heard window panes being broken. They eventually went into the bedroom all of them during the shooting. As the witness passed near the window she saw the accused with a gun in her hand and she fired a shot which hit the witness between the breasts. It was the rear window of the kitchen. The witness fell down still in the kitchen. Her mother came and took her to under the bed in the bedroom, and all four of them were under that same bed.


The shootings continued even on the front part of the house and the window panes were broken. The property in the house was hit by bullets. The witness heard accused swear that the two deceased persons were not going to see the end of that day still living. This according to P.W.5 confirmed that it was in fact the accused who was shooting. There was a pause and accused was heard saying she was going to re­load the gun.


During that interval Nkhono ' Maneo asked to be allowed to leave for her home. Malefetsane. P.W.5's father opened the door for her and she left. The door was again locked with three people inside the house.


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After 'Maneo had left the shooting resumed. The witness then heard the door leading to the outside being hit with a heavy object forcing the door which had been locked to open. P.W.5 then saw the accused enter the house. The witness was still lying under the bed. In explaining how she felt after she was shot, the witness said she felt as though there was dust inside her stomach and she bled heavily.


P.W.5 saw the accused enter the kitchen, passing over into the bedroom where they were. As she got in there she started firing directing the blows to under the bed. It was P.W.5's evidence that as the shooting by the accused continued she noticed her mother lying down helplessly. Accused's husband also entered the house and as he entered he too started shooting. According to the witness, when accused and her husband realised that they had shot all of them and that her mother was dead, they both went out of the house. The witness felt something on her ear and as she touched it, she discovered that she had also been shot on her ear. The witness had gone further and showed that from where she was under the bed she could still see people entering the house.


After both the accused and her husband had left P.W.5 realised that both her parents had injuries which were bleeding all over. The witness had said she did not believe that the accused and her husband saw where she had hidden under the bed without explaining further why she had such a belief.


The evidence went further to show that after the accused and her husband had left, P.W.5 went out of the house leaving her parents in there. She could not remember what happened thereafter except that one lady came and held her. The witness had


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passed out and when she finally came to she was in hospital where she spent three days. According to P. W.5, her family and that of the accused were not in good terms prior to the day of the incidents. The source of their quarrel was a field.


Under cross-examination, P. W.5 was taken to task concerning the evidence that she had given at the P.E but she insisted on saying she saw the accused holding a firearm whilst she (accused) was still outside and that she was shooting. It would seem that the witness at the P.E had said the accused and her husband were standing at the forecourt of her (P.W.5) home as they were shooting, but before this Court she told the Court that the accused and her husband were still at their home when they started shooting.


The cross examination also revealed that the witness never told the Magistrate at the P.E stage that the accused also shot her on the chest as she passed near the window. The witness had further told the Court that though she was frightened by the shooting her right judgment remained unimpaired. It was also put to the witness that in fact her deceased parents were the ones who started the fight, but the witness replied by showing that she was not aware of that. It was also indicated under cross examination that her deceased parents had assaulted the accused's husband and this was a surprise to the witness.


Though P.W.5 said she did not observe anything, it had been put to her that one 'Matumelo, who was accused's neighbour was going to say that she witnessed the accused breaking the deceased's windows whilst the accused's husband was shooting. What the witness testified to was that she had seen both the accused and her husband


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shooting. According to P.W.5 accused was only 5 paces away from them as she continued shooting inside the house. P.W.5 was facing towards the accused as she hid under the bed. The cross examination revealed further that the accused would say she had a gun in her possession whilst she was still outside which gun was later taken from her by her husband.


P.W.5 explained further that she had seen the accused's face when she was firing through the window and could even see how the accused was dressed. But when accused was inside the house firing, she could not see her (accused's) face but only identified her by her clothes as she had already seen how she was dressed. She only saw her up to the chest as there was a bedspread overlapping.


P.W.6 Senior Inspector Chabalala in his evidence told the Court that he was stationed at Maputsoe during September 1996 as a Warrant Officer. It was on the 28th September, 1996 when he was still on duty that a soldier by the name of Ramoepana came to his office. That person, Ramoepana is the husband to the accused before Court. The witness showed that it was at around 6.30 p.m. when Ramoepana arrived at the Charge Office alleging to have been assaulted. According to this witness Ramoepana was covered in blood.


The witness decided to take the injured person to hospital, Motebang Hospital at Hlotse, but before the person was taken to hospital, IInd Lt. Monyane arrived at the Charge Office coming to report about people who had been shot at Hleoheng. The witness then proceeded to Hleoheng where he first reported to the Chief of the area. The chief in turn took them to the scene of crime at the home of one Malefetsane


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Ramoepana and Manthuseng Ramoepana. When they got there they realized that 'Manthuseng was already dead but Malefetsane was still alive. Both were still inside the house.


Evidence went further to show that Malefetsane was taken to hospital, Motebang Hospital, and the body did not sustain any further injuries on the way to the hospital. On the following morning the witness went via Motebang Hospital to check on the condition of Malefetsane and the accused's husband. He came to know that Malefetsane passed away, whilst accused's husband had already been discharged. Because the accused's husband had yet not left the hospital premises, the witness grabbed the opportunity and questioned him about what actually had happened, and he gave his explanation.


According to P.W.6, accused's husband already knew him, but he still identified himself to him. They then left together to Hleoheng following the explanation which accused's husband had given. When they got to HIeoheng, he was asked to hand over the firearm he had talked about. The accused's husband tried to be difficult but when he realized that the game of hide and seek was not taking him anywhere, he eventually took them to his home where he asked his mother to hand the gun over to him. It was a 9mm pistol which was unloaded.


It would seem that the witness and accused's husband were at the accused's parental home because he then showed that, they went to accused's home where they met the accused. Questions were put to the accused and she gave her explanation. The gun was shown to the accused in the presence of her husband.


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According to P.W.6. he already had the accused as the suspect after they had left her husband in hospital and also taking Malefetsane, the deceased, to hospital. From the explanation of both the accused and her husband it became evident that the gun belonged to accused's husband as his personal licenced firearm. The accused admitted having used the gun. She even explained why she shot the deceased persons. The explanation being that she was defending her husband who was being assaulted by both the deceased. P.W.6's evidence showed that following the explanations from both accused and her husband, the accused was arrested.


It must be clear that from the initial stage, accused's husband was not a suspect. On further investigations accused's husband ended up becoming a suspect. When he was eventually arrested the firearm had already been seized and kept in police custody. The witness handed in the gun and its magazine which he claimed had always been in his custody as an exhibit and it was marked as such. The witness had taken the gun for ballistic examination.

In cross examination P.W.6 still showed that even after they had confronted the accused and her husband they still had the accused as their only suspect. Further investigations revealed that accused's husband was also a suspect. The witness further showed that accused's husband only became suspect after some ten days or so and the accusal had already been arrested. He pointed out that the gun was never examined for fingerprints.


It was also put to the witness that the accused's story was that there had been a family scuffle whereby the two deceased persons fought the accused's husband.


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The accused had been in her house all along and when she came out she was armed with a gun. She fired twice in the air and the deceased persons dispersed. Accused's husband got the gun from the accused and shot at the two deceased. This was denied by the witness as his story was that investigations revealed that it was the accused who shot the two deceased.


hrough his investigations it appeared as though two firearms had been used in the fight, but only one gun was found. The investigations revealed that the one which was produced before Court was the one which the accused used.


P.W.7 D/Tpr Nyooko told the Court that he was stationed at Maputsoe during 1996. Whilst still on duty on the 28th September, 1996 he received some information. Following that information, he together with P.W.6 and others proceeded to a place called Ha Monyane. They arrived there after sunset. They were shown two people inside the house who had sustained injuries. The injured people were identified to them as Malefetsane Ramoepana and 'Manthuseng Ramoepane.


The house in which these people were found was a two roomed house. The woman, 'Mathuseng was already dead but the man, Malefetsane was still alive. The two were found in separate rooms. One room was used as a kitchen and the other room as the bedroom. Malefetsane was therefore found in the kitchen whilst 'Manthuseng was in the bedroom. According to this witness, as it was already dark, they rushed the one who was still alive to hospital and the woman was left there for the night with instructions that she should not be removed or tempered with.


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The witness and his team visited the scene the following day in the morning. They found the deceased's body in the same condition as when they left it the previous day. On inspecting the scene starting from the outside, they found two empty shells of 9mm calibre at accused's gate. They also noticed that the accused's place was not far from that of the deceased persons. Also found was an unused 9mm bullet. They then proceeded to the house of the deceased.


In describing the deceased's house, the witness showed that it was a two roomed house with three windows. Two of the windows were on the front part whilst the third window was at the back. The outer door was broken. A 9mm empty shell was found at the roar window. In front of the house five 9mm empty shells were also found. On entering the house a total of 13 shells were found in both rooms. Nine used bullets were also found inside the house.


It has already been shown that 'Manthuseng was still in the house. She had fallen near the bed on her back, facing upwards. On examining the body P.W.7 found that she had bullet wounds all over her body. The witness observed a wound above the left eye, a wound on the left side of the neck and both these wounds had no exit. There was also a wound on the left elbow and that elbow was broken, three open wounds at the back with no exit, a wound on the left thigh which had both an entry and exit points, and another wound on the right leg. The witness had recorded his observations. Next to the dead body was a black sword which was blood stained. The witness seized the sword as an exhibit. The sword was handed in as an exhibit and was marked as such.


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Through his investigations the witness came to know that the deceased had used the sword in the fight. On inspecting the inside of the house P.W.7 found that there were holes and scratches on the walls and on the wardrobe in the bedroom. These holes were signs of where the bullets had dug the wall and the holes were still fresh. The deceased was transported to the mortuary and the body never sustained any further injuries on the way to the mortuary.


P.W.7 then went and checked on the condition of Malefetsane who died in hospital. He was already at the mortuary. On examining his body, the witness observed three wounds on the stomach, one of those wounds had an exit at the back, one wound above deceased's buttocks on the left side. The other wound penetrated the left thigh. There was another open wound above the right knee and another on the right ankle. All of these wounds had been sutured except for one above the right knee. The wounds were also covered in plasters. The witness had kept the items found at the scene in police custody as exhibits. He had also taken the shells that were found for ballistic examination. The witness showed to Court both used and unused bullets, the Projectiles and shells. They were handed in as exhibits and were marked as such.


The witness showed that their investigations led to the arrest of the accused after they had introduced themselves to her. The accused was confronted on that very same day, the 29th September, 1996. The accused happened to be the only suspect at the time.

Further investigations revealed that accused's husband was also a suspect. This


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was some days after the accused was already arrested. Accused's husbands's rights were explained to him and he gave his explanation. He was thus arrested and charged of two counts of murder, one of attempted murder and the last one for malicious damage to property.


The witness had taken photos of the scene and the bodies of the deceased persons. He prepared two separate albums for those photos. The witness explained that he was trained for scene of crime and photo taking. The photo albums were handed in as exhibits and were marked as such.

When he was cross-examined, P.W.7 pointed out that he together with his team only came to the scene after the incidents had happened. He never examined the accused's husband for any injuries on himself as he (P.W.7) never met him during the initial stage of his investigations. P.W.7 even explained that the accused herself had no injuries though the instruction to her counsel showed that accused also had injuries and had even consulted a doctor.


The accused's husband reported at P.W.7's office some time after the arrest of the accused. Though the witness never examined him he had produced his medical form. According to this witness a wound caused by a sable would not be the same as that caused by a bullet. A bullet wound would lacerate and puncture whereas a wound from a sable would show some tears. The witness confirmed that the accused's husband was also later charged of the same counts as appear in the indictment. It eventually came out that the accused had admitted shooting at the two deceased persons as they (deceased) had attacked her husband. According to this


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witness. the projectiles that he picked up at the scene were all of the same type and make.


P.W.8 IInd Lt. Monyane in his evidence informed the Court that he was stationed at Quthing. Before that he had been working at Roma. He was still working in Quthing in l996. His home is at Hleoheng Ha Monyane and stays in the same village with the deceased and the accused. They had attended a graduation ceremony at NUL on the 29th September, 1996. They arrived back home at about 3.00 p.m. The witness may have been on his annual leave, but this did not come out clearly.


P.W.8's evidence continued to show that as he was at home a child came to report about a fight to the chief, Chief Nchakha Monyane. The witness must have been in the chiefs company because his evidence showed that the chief asked him (P.W.9) to accompany him to the scene. They went together to the scene.


In trying to explain the location of accused's home to that of the deceased persons, P.W.8 showed that from his home (P.W.8) to accused's place he had to pass the deceased's place. When P.W.8 got to deceased's place he was stopped by the accused's husband. The witness pointed out that the accused's husband was very angry and shouted at him when he (P.W.8) tried to calm him down so that they could talk. He (accused's husband) was still at his home at the time.


At that time the witness saw the accused at deceased's place standing at the rear window and shooting inside the house through that window. The witness did not go nearer to the accused as he said he was afraid of the gun. He kept on talking to the


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accused's husband in an effort of asking him to go and stop the accused from shooting, The witness saw the accused eventually leave the window for her place. P.W.8 Then realised that the accused had been using a pistol.

The accused was seen leaving her home with her husband to the deceased's place. When they got (here P. W.8 saw the accused's husband take a big stone which had been used to close a fowl run and struck the deceased's door with it. The door was forced open. The witness realised that when the accused proceeded back to deceased's place with her husband it was only the accused who was armed with a gun.


After the door had opened the accused and her husband were seen getting inside the deceased's house. Once they were inside, several gun reports were heard. P.W.8 then saw a child come running out of that house towards him. It was the deceased's child but the witness could not remember the name of the child. The witness then went nearer to the house whilst the chief stood near the fence where people had already gathered. The accused and her husband were seen leaving the deceased's house for their place. P. W.8 did not have occasion to talk to both accused and her husband to get to know the source of their fight.


P.W.8 then managed to get inside the house as he had heard people crying inside. He got into the bedroom where the cry came from. He opened the door to the bedroom and the first person he met in there was 'Manthuseng. He tried to assist her but because of her weight could not manage to raise her. He realized that her clothes on the chest were soaked in blood.


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P. W.8 then heard a cry from under the bed and found that it was 'Malefetsane. The witness pulled him from under the bed and discovered that he was still alive and could still talk. P.W.8 then heard the deceased claim that the accused's husband had killed his wife. He asked the witness to assist him. Before he could assist him, the witness told Malefetsane that he had been telling him to leave those fields as he (deceased) managed to be educated by her mother without any benefit from those fields. The deceased had agreed with him on that but showed that it was no longer of any use to talk to him like that.


It was P.W.8 who reported the matter to Police at Maputsoe. Accused's husband arrived at the Police Station as P.W.8 was reporting. He surrendered himself to Snr Inspector Chabalala who is P.W.6 in this case. P.W.8 observed what he called a bad wound on accused's husband's forehead and the wound was still covered in blood. P.W.8 had earlier on noticed that wound when he (P.W.8) was at accused's place and had asked for a short talk with accused's husband.


Further in his evidence P.W.8 showed that he knew about the issue concerning the fields between the two families. He was also aware that the matter even went before the Courts of Law and that Judgment was given in favour of the deceased.


In cross examination P.W.8 pointed out that the deceased, Malefetsane Ramoepana had indicated that accused's husband, Mosoeu Ramoepana, had shot him and also shot his wife. P.W.8 had also reported to P.W.6, Snr Inspector Chabalala. The witness still insisted on pointing out that he had seen the accused shooting inside the house through the window.


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At this juncture the Crown made an application in terms of Section 227 of the Criminal Procedure and Evidence Act 1981, that the evidence of P.W.4 and 5 at the PE be admitted in evidence as those witnesses have passed away. The Defence Counsel Mr Mosito did not object to this instead he added that he in fact had no choice as that is the law, but concluded by saying that the matter was entirely in the Court's discretion.


The Court exercised its discretion and allowed the application. The evidence of 'Malineo Ramoepana was duly read into the machine.


'Malineo Ramoepana had told the Court that she resided at Ha Monyane. She was at a least within the village of Ha Monyane on the 28th September 1996. It was at a graduation ceremony. As she was there, late in the evening, she received some information. Following that information she left with others to deceased's place. On her way to that place she met a group of people running back towards them.


'Malineo then heard the accused telling his uncle not to come any closer. As she said these words, the accused was near the deceased's house. The door for the deceased's house was still closed. 'Malineo then heard gun reports. She did not see the two deceased persons but saw accused's husband at the forecourt of the deceased's place. Accused was breaking the windows of deceased's house and her husband followed her. As they had entered the house 'Malineo heard more gun shots. 'Malineo was about 150 paces away from where the shooting took place.


'Malineo then saw both accused and her husband getting out of deceased's


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house and leaving for their home which was next to the home of the deceased. 'Maneo Ramoepana (P.W.3) was seen leaving deceased's house also. Her clothes were soaked in blood and appeared to be very much confused. 'Malineo took 'Maneo to hospital and later came back to deceased's place. In deceased's house she found 'Manthuseng already dead but her husband was no longer there. 'Malineo is related to the accused and her husband as their aunt. Deceased, Malefetsane, being the brother to 'Malineo's husband. Accused's husband was a member of LDF. He may have been on leave during that time.


Evidence of' Matumelo Ramoepana which was also read into the machine was to the effect that, she resided at Ha Monyane together with the accused and her husband. He is also related to the deceased and also live in the same village. She knew accused's husband as a member of LDF.


At about 4.00p.m. on the 28th September, 1996 'Matumelo was going to her home village from Tabola. On the way she met Mahlomola Ramoepana who reported to him about accused's husband. 'Matumelo got hurt by the information so much so that she walked faster in order to get home on time. When she was about to reach home she met accused's husband going to his home.


'Matlumelo also saw the deceased Malefetsane going to his home. They were in deceased's house when she heard the dogs barking and Malefetsane's wife went out of the house. When she returned she invited 'Matumelo to the outside saying her husband was dying. When 'Matumelo got outside she saw Malefetsane Ramoepana and 'Mapelaelo Ramoepana fighting. They were in the street. Malefetsane had a


27


sjambok and 'Mapelaelo had nothing. 'Matumelo went away and reported the fight to one Monyane, but whilst she was on her way to Monyane she heard a gun shot.


After reporting, 'Matumelo went back to where the fight was taking place, only to find that it had ended. She showed that before she jumped over the fence she heard a gun report. She saw both deceased persons enter their house and close the door behind them. She heard another shot from accused, 'Mapelaelo, who came nearer Malefetsane's place where she broke the windows as she was shooting. 'Matumelo showed that 'Mapelaelo aimed into the house at the same time uttering abuse words.


'Matumelo then saw Mosoeu approach 'Mapelaelo and together tried to open Malefetsane's door but failed. She saw Mosoeu pick up a big stone, hit the door and the door opened. They both entered the house and gun reports were heard from inside the house.


'Mapelaelo and Mosoeu then went out of the house and 'Mapelaelo was heard saying, "you have died, you will never see this day." Mosoeu then chased 'Matumelo and others still holding a firearm in his hand. When 'Matumelo got inside the house she found 'Manthuseng Ramoepana lying in a pool of blood and did not notice her husband. There were holes and blood stains on the wardrobe and walls. The dead body was left in the house for the night. 'Mapelaelo was arrested the following day.


The Crown had asked to be allowed to make a submission in regard to what he called a typing error in the record, which he thought might convey a meaning inconsistent with the other evidence. She specifically referred to the evidence of


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P.W.4 at PE 'Matumelo Ramoepana where it was said P.W.3 was injured yet P.W.3 was the identifying witness. He said the witness must have been talking about P.W.2 'Matseuoa not P.W.3 Mahlomola. This was objected to by the Defence Counsel showing that the witness testified before the Magistrate under oath and that the evidence had been read back to her. He showed that that was not a typographical error but would be an amendment of the deposition.


The application by the Crown was refused as the Court considered that it was not a typographical error but a substitution of the evidence. The Crown therefore decided to call the Magistrate who presided at the P.E.


Mr Motsamai Kolobe was called as P.W.9. He was given a copy of the P. E record where the first accused was 'Mapelalo Ramoepana and the second accused, Mosoeu Ramoepana. He also read the names of the first three Crown witnesses as P.W.1 Ramoepana Ramoepana, P.W.2 'Matseuoa Ramoepana and P.W.3 Mahlomola Ramoepana. The witness explained the Procedure at P.E.

The witness told the Court that the Procedure at P.E is that the witnesses have to be sworn-in and can opt to give evidence in one of the official languages, Sesotho or English. The evidence will be interpreted by a sworn-in interpreter. The evidence will be read back to the witness, thus giving him chance to correct where necessary. The witness will then sign at the end to confirm that his statement had been recorded correctly. The Magistrate has to record what is being said by the interpreter not what he directly heard from the witness.


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He went further and showed that when the witness is giving evidence, he will be calling out people by their names, even those who have already appeared in Court as Crown witnesses like himself. But the interpreter in turn will be referring to those who have already given evidence as P.W. so and so. Even the Court when reading the statement back to the witness too will be referring to other witnesses as P.W. so and so. The Magistrate here clearly pointed out that he was not sure if the witness would appreciate that reference to witnesses as P.W. so and so.


The witness referred to page 5 of the P.E proceedings, where the evidence of Mahlomola Ramoepana is recorded, but the Defence Counsel objected to the procedure taken as amounting to correcting the evidence of a witness who had already given his evidence. The Crown on the other hand pointed out that he only wanted to clear some eminent confusion. The defence still insisted that irregular evidence will not be allowed.


The Court allowed the witness to continue in his evidence so that it could be seen whether such evidence could be allowed. In proceeding with his evidence P.W.9 clarified that when P.W.4 at P.E in his evidence referred to P.W.3 she in fact was referring to 'Matseuoa Ramoepana who is P.W.2. The witness said he was saying that because when taking in totality the evidence of P.W.4, P.W.3 was never in the house but P.W.2. The witness, P.W.4 in his evidence talked about a she not a he.


On making a clarification on the evidence of P.W.5, 'Matumelo Ramoepana after reading her evidence. P.W.9 also showed that when P.W.5 referred to P.W.3 she in fact was referring to P.W.2 as P.W.3 was never in that house, deceased's house but


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P.W.2.


It was only a fter hearing these clarifications from P.W.9 that the Court was then able to make a ruling on whether or not to allow the evidence. The evidence of P.W.9 was allowed for reasons that follow below. Taking the evidence at P.E of P.W.4 and P.W.5 where the record makes reference to P.W.3, it came out that considering their evidence in totality reference has always been made to P.W.2 all along who happened to be in deceased's house and was a she not a he. P.W.3 Mahlomola Ramoepana only came alter the fight had ended.


P.W.9 clearly told the Court that the interpreter in his interpretation of evidence of a witness will not be referring to a witness who has already given evidence by name but as P.W. whatever. Even the Magistrate at P.E will do the same when reading the evidence back to the witness. This therefore could not amount to correction of evidence of a witness but only done to clear some eminent confusion in the minds of the Court and all concerned in the matter.


In cross examination P.W.9 who happened to be the Magistrate who presided at the P.E in this case told the Court that during the Proceedings at P.E he had the assistance of both the prosecutor and an interpreter. According to this witness questions put to the witness in his evidence in chief do not form part of the record, so that only answers will be recorded. He went further and explained that what is recorded is what is asked under oath not what is asked by the Prosecutor who will not be sworn-in but that the witness will be sworn-in. The witness admitted that questions under cross examination will become part of the record.


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The witness went further to say that questions put under cross examination constitute accused's defence and questions under evidence in chief only help in leading the witness. The witness agreed with the defence counsel that what he had said was only his own perception and understanding of the law. It was suggested to P.W.9 that questions put in Court irrespective of whether or not they come from defence or prosecutor form part of the record. The purpose being to enable even a different Court to understand the flow and nature of the evidence. But P.W.9 still insisted on saying that answers from the witness would be sufficient to assist the Court to understand.


On the PE record there was not even a slightest reflection of what was asked by the prosecutor. The witness pointed out that an interpreter would have to translate from Sesotho into English and vice versa. It was also put to the witness that the accused would say that when witnesses were testifying at P.E their evidence was never read hack to them, and the reply was in the negative. It was clear that the witnesses at PE were testifying in Sesotho, and P.W.9 denied that there was no interpreter during the proceedings at P.E.


This being an old case the witness could not quite remember whether Mr Ranyali was the one interpreting but he said under normal circumstances he must have been there (Mr Ranyali). The witness further pointed out that the message conveyed by the date stamp impression at the end of every evidence was that the presiding officer read back the witnesses testimony to the witness and that the interpreter interpreted back to the witness. But P.W.9 was very clear in saying that when sitting as a Judicial Officer he would not be taking what comes out from the witnesses'


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mouth but would record what comes out from the interpreter. He further said he would only make some modifications where there has been some misinterpretation.


It was P.W.9's evidence that he could remember a he put for a she after he would have read the PE proceedings and that he based his reply on the contextual appreciation. To a suggestion that a stamp impression was just put on the record after each witness had testified, P.W.9 showed that he could not dispute that as he could not remember. He could not also dispute the fact that the interpreter merely put his signature on the record without having interpreted anything sentence by sentence.


The witness was asked to state the normal procedure at the P.E on the question of interpreting the proceedings. He told the Court that normally as the witness would be giving his evidence led by the prosecutor, the interpreter would be interpreting from Sesotho to English. He said there would never be a time where evidence at P.E would be given without the assistance of an interpreter. Also that when the evidence is read back to the witness, he would be told the purpose of that exercise, being to make additions or corrections where there have been some misinterpretation.


After the close of the Crown case the accused chose to go into the witness box and gave her evidence. Her sworn evidence in a nutshell was that she listened carefully to the proceedings at P.E where the proceedings were conducted in Sesotho and that there was no interpreter.


She indicated that she remembered the day that the deceased persons met their death. It was on the 28th September, 1996 when her 9 year old son came to her and


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asked her to go out of the house to witness something. The child uttered words to this effect, "mother, mother please come out and see." The accused then said as she came out, she saw her uncle, the deceased clumsily embracing her husband, at the same time cutting her husband with a sabre (sword). Malefetsane had his hands around her husband's waist. Accused said she could not see her husband's hands as her husband was trying to free himself.


Accused in her evidence showed that the wife of Malefetsane, one 'Manthuseng was the one who was using the sabre (sword). Accused angrily approached them and enquired as to what the matter was. As she was asking, 'Manthuseng struck her with a sabre and cut her at the back of her hand and the middle part of her arm near the elbow. The accused then went back to her house, collected her husband's gun and went back to where the fight was taking place. She fired twice in the air.


According to the accused as she fired Malefetsane and his wife dispersed. Accused's husband snatched the gun from the accused and started firing. Accused's husband was not saying anything as he did all these. Accused tried to stop him but all in vain. Accused asked her husband to ignore the temptation of shooting at those people but he replied and showed he couldn't leave them. As all these happened they were at a passage between accused's yard and deceased's yard.


Accused indicated that her husband kept on shooting until when accused learned later that both deceased had died. Accused's husband kept on shooting till the deceased were at a passage leading to their home and accused's husband had followed them to their home. The shooting continued even after the accused had


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entered their home. Accused's husband entered deceased's home and kept on shooting whilst he was already inside the house.


Further in her evidence accused told the Court that she never carried a gun and that the police never found any firearm in her possession. Accused said she never fired any shot whilst inside deceased's house as she did not know how to use a gun. When she first fired, she had only pressed where she had put her finger and it fired. She denied ever shooting at 'Matseuoa, P.W.5 through the window. To accused's recollection the cause of the quarrel was a dispute over inheritance. It was accused's evidence that she never shot at anybody on that day. Accused further showed that her husband died later during May 2000 killed by deceased's sons.


In describing the deceased's house the accused explained that it was a two roomed house, one room being used as a kitchen and the other as a bedroom. Accused had earlier on shown that she also followed her husband into deceased's house as he was shooting. She had also shown that her husband kept on shooting even whilst he was already inside the house, though she could not notice the direction at which he was firing. Later in her evidence she said that her husband was aiming his gun at the two deceased persons.


It was accused's evidence that she neither saw 'Matseuoa, P.W.5, nor 'Maneo, P. W.3 on that day. Her evidence was that if they were there she could have seen them as she was still able to see under the table in the kitchen. But immediately changed to say she did not see under the table and would therefore not know if there were people under that table.


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Accused's evidence showed that she only fired two shots in the air. She never fired to kill anybody on that day, and denied ever breaking deceased's windows. Her evidence further was that it was her husband, Mosoeu, who used a big stone to break the door at deceased's place so that he could gain entry into deceased's house. She further told the Court that after the shooting her husband went to hospital as he had sustained injuries. Accused also had been injured and she too went to see the doctor.


The accused denied ever participating in the destruction of deceased's property. Also that they never planned with her husband to fight the deceased at their home. She also denied ever saying that the deceased were not going to see the end of that day. She went to the Police after the shooting to report the incident of deceased's death. When she went to report she was told by Police that her husband had already reported. Her evidence further showed that Police never asked her about any firearm, and never reported to Police that she had lost her firearm.


In cross examination the accused pointed out that they knew each other so well with P.W.3, 'Maneo Ramoepana, and that P.W.3 lied when she said she saw her (accused) from the rear window of deceased's house. But later said P.W.3 could have seen her as her (accused's) house is near to that of P.W.3. Accused denied that P.W.3 saw her (accused) through the window and that she ever saw her shoot at her (P.W.3).

Accused took it that P.W.3 was only implicating her as her (accused's) husband is late. It was put to the accused that she was putting all the blame on her husband because he was no more.


Because her husband struggled to free himself she (accused) could not see


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where her husband's blows were directed. Accused indicated that she said her husband was furious and could not talk because he just snatched the gun from her, with these words, "just see how bloody I am". Accused when realising that she could no longer contain her husband's fury, decided to disassociate herself from his acts as she had wanted him to stop what he was doing.


Accused went on and told the Court that she had been crying out for help and had realised that people had gathered at the scene. Accused had admitted to P.W.7, Sgt Nyooko that she had used the gun because P.W.7 had said she should say so in order to save her husband from losing his job. He admitted saying that she used the gun to defend her husband, but indicated that P.W.7 never asked her the stage at which she had fired the gun.


Further in cross examination the accused indicated that she heard when P.W.3, 'Maneo, in her evidence testified to the effect that she identified the accused by voice. Accused explained that the motive to implicate her could be that, P.W.3 was not on their side as there is a division in the family.


Accused further explained that it was her first time to fire a gun on that day. She just pressed without any idea as she had been seeing people use guns over television. According to the accused, her husband was the first to be given charges, whereas she was only charged some time thereafter, months later. Her evidence went further to show that she was the one who took the gun to where the fight took place. There was a time when she had left her husband shooting when she went back home as her husband refused to go home. This was at the time when her husband was


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inside deceased's house in the bedroom. Accused explained that when the fight took place it was at about three or four in the afternoon. There was no other witness called for the defence.


On looking at the evidence as a whole, it is common cause that there had been a fight between the deceased's and accused's families over a field on the day in question. It was a family feud. It is an issue for determination by this Court as to who between the two families started the fight.


Considering the evidence of P. W.5 'Matseuoa Ramoepana accused's husband was the one who started the fight. P.W.2 Pelaelo Ramoepana only came when the fight had already started and did not know where it had started. Unfortunately one 'Matumelo could not be called as a witness as the person who even raised an alarm, but her deposition was admitted in evidence by consent.

From the evidence that was led before this Court it became evident that the source of the misunderstanding between the two families was a field. It has also been stated that the matter was even taken before the Courts of Law where judgment was given in favour of the deceased persons. It may be that the deceased became boastful or that the accused and her husband were still not satisfied and felt that they would resort to violence, but that would be pure speculation which would not help take our case any further. In short the cause of the fight for that day has not been established, but what remains is the fact that both families were not in good terms because of a field.


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We learned from the evidence of P.W.3 'Maneo Ramoepana that both deceased had run into their house, closing and locking the door behind them. She was corroborated on this point by P.W.5 'Matseuoa Ramoepana, who also told the Court that her parents, both deceased, rushed inside the house on the sound of the gun and locked themselves in. The accused and her husband may have been angered, but when both deceased fled to their home, this surely allowed them enough time for cooling of passion; Regina v Masakale Mphosi 1963 -66 HCTLR 17 at 19. But instead the accused pursued the deceased even after they had locked themselves inside their house. We are here talking about cooling of passion in the legal sense, because in reality that pause may turn out to be time for one to even becoming angrier that before.


According to P. W.2, Pelaelo, who is the daughter to the accused, accused was the one who went home to collect the firearm. The accused herself did not deny that she was the one who collected the gun from home. She even said she had fired twice in the air, thus indicating that she was quite familiar with the use of that gun. P.W.5 on the other hand said that whilst they were already inside the house, she saw the accused shooting through the window and even shot her on the chest between the breasts as she was passing on to the other room.


The evidence of P.W.5 on the issue of the accused shooting inside the house through the window at deceased's place was corroborated by that of P.W.8 IInd Lt Monyane, who loo testified to the effect that he saw the accused at the deceased's place shooting through the window. He had also seen the accused leave for her place only to come back later with her husband to deceased's place, accused holding a


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Firearm. R v Manda 1951 (3) SA 162, that "where corroboration is required it must be of a kind that implicates the accused." Also R v J 1966 (1) S.A 88. P.W.8 even told the Court that as the accused was shooting, he was talking to the accused's husband asking him to stop the accused from shooting.


According to the evidence of both P.W.3 and 5, the accused was heard saying that she had run out of bullets and was going to re-load her gun. There was a pause and P.W.8 showed that after he had seen the accused shooting through the window at the deceased's place he saw her leave for her home. That must have been when P.W.3 managed to flee to her house. Accused was seen later coming back with her husband with a gun in her hand. This could have been after she had re-loaded her gun, because once she had gained entry into the deceased's house with her husband more gun reports wore heard. Also to be remembered is the fact that the medical report had shown that accused's husband, Mosoeu Ramoepana claimed to have been assaulted on the head and on both hands with a sword. This attack may have weakened his hands.


Also to be remembered is the evidence of P.W.8 when he said he saw the accused enter the deceased's house with a gun in her hand. P.W.5 had also seen the accused entering the house in which they were, and she (P.W.5) could still see the accused from where she had hidden under the bed. P.W.5 saw the accused shooting, directing his blows under the bed where both deceased and P.W.5 had hidden. So that the evidence of P. W. 8 corroborated P. W.5's evidence that accused continued shooting even when she was already inside deceased's house.


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We have been told by the crown witnesses that accused at some stage before entering deceased's house ran out of ammunition, even there it is obvious that there was yet another ample opportunity for cooling of accused's passion, but because the deceased had injured her husband she wanted to see them dead.


Depositions of P.W.4 and 5 at P.E were handed in and the defence counsel did not object to that. In response to the application by the crown for handing in that piece of evidence in terms of Section 227 of C.P &E Act 1981, the defence counsel replied as follows: "I have no choice as that is the law, but the matter is entirely in the Court's discretion."But now the defence in his addresses and heads of argument is saying that such depositions could only be admitted in evidence if and only if in terms of Section 227 (2) (a) CP & E Act it was proved on oath to the satisfaction of the Court that the deponents were dead. He is now asking the Court to disregard those depositions.


This point had been eloquently discussed in the case of R v Chabalala 1991 -96 Vol. 2 LLR 957 and cases cited therein, that the section leaves the Court with unfettered discretion to exercise. The other aspect will be the question of prejudice to the accused as a result of the admission of the depositions. This investigation the Court is enjoined to make before and after the deposition had been admitted. In our case the investigation is made after the admission of the deposition when the Court is evaluating the evidence as part of the other testimony in order to reach a conclusion towards a final judgment on matters of credibility amongst others. It's not made before as the depositions were handed in by consent of both parties.


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For the Court to make a determination on the question of prejudice, it has to look at the nature of the evidence sought to be put in, and if for instance it conflicts with the other evidence led in the particular case, or if from cross examination the evidence recorded would seem to leave a doubt, then the Court should be very slow in admitting the evidence as envisaged under Section 227 of the Act, R v Rasool 1929 TPD 73.


The admitted depositions of the two witnesses not called to give evidence was that, they saw the accused breaking the deceased's windows as she was shooting through the window, P.W.4 at P.E had also heard gun reports after accused had entered deceased's house. It was the evidence similar to that given by P.W.5 and P.W.8 at this trial, so that the question of prejudice does not arise as there had been no conflict with the other evidence given before this Court.


P.W.9 Magistrate Kolobe who presided at the P.E proceedings clearly explained the procedure at P.E. He was asked as to whether he had been assisted by a prosecutor and interpreter at the P.E and the answer on both was in the affirmative. P.W.9 even explained fully what the functions of that interpreter were. The witness admitted that his record only reflected answers given by the witnesses not the questions that the public prosecutor asked the witness. The witness did not come up clearly that there was in fact no interpreter in Court during the proceedings at P.E he only said that under normal circumstances there would always be an interpreter. He went further to say that this case being an old one he would not exactly remember as to what transpired in the proceedings. He could not dispute because he couldn't remember. By that he could not have been taken to have said there was for certain no


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interpreter.


As was said in R v Moleleki 1982 (1) LLR 89, in giving out the functions for a Judicial Officer at P.E that he cannot act as an interpreter as he would not have been sworn in as such. The magistrate did not say for certain that there was no interpreter, what he said was that he could not dispute because he could no longer remember.


But, even if we were to disregard the P.E proceedings, there has been overwhelming evidence against the accused, that she was seen holding a gun in her hand on that day at deceased's place shooting through the window of deceased's house, the evidence of P.W.5 and 8. She was also seen entering the same house with a gun in her hand and once she had entered, gun reports were heard. P.W.5 saw accused shooting as she entered the house. According to P.W.5 both accused and her husband were shooting each using a gun, meaning that there were two firearms used, though only one was exhibited.


The defence had asked the Court to view 'Matseuoa, P.W.5's evidence in the light of her likely bias as the deceased's child. With that in mind the Court also considered the evidence of P.W.8, IInd Lt Monyane as an independent witness who strengthened the prosecution's case on relevant issues given by P.W.5, the shooting and the damaging of property.


The accused also wanted the Court to consider her as having not participated in the crimes charged but her late husband only. She claims innocence in the whole


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scenario. Accused told the Court herself that she was the one who went home and collected the firearm. She had even fired in the air. She said she was asking her husband to leave the deceased yet she went and collected the firearm.

It was said in ihe case of R v Du Randt & Another 1954 (1) SA 313, that common purpose may be created on a spur of the moment and without premeditation, which exactly had been the position in this case. Accused had found the fight between deceased and her husband already going on. They never planned with her husband to go and attack the deceased at their home; at least there has been no evidence to that effect. On the principle of common purpose it would therefore not matter if it was accused's husband who was doing the shooting or the accused herself. Even if we were to believe accused's story that it was her husband who was shooting, she too would still be taken to have fully participated in the commission of the crimes charged on that principle of common purpose. She associated herself with her husband in the shootings because even after the interval that was taken, she came back with her husband to the scene and the shootings continued.


The accused satisfied the five pre-requisites to be applied to an accused as set out by the defence that:


  1. she must have been present at the scene of any of the incidents referred to in the particulars, including the acts pleaded, of the offences charged;


  1. She must have been aware of the conduct involved in such incidents.


  1. She must have intended to make common cause with the actual


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perpetrators of the said incidents;


  1. She must have manifested her sharing of a common purpose with the perpetrators by himself performing some act of association with their conduct; and


  1. She must have had the necessary mens rea.


Picked up at the scene by P.W.7 D/Tpr Nyooko was a total of 21 shells and projectiles, from inside and outside deceased's house. For someone to have fired so many bullets gives a clear indication that such person wanted his/her victim dead or badly injured, and this is what accused associated herself with as the person who brought the gun to the scene.


The accused has also been charged of malicious damage to property. A person commits malicious damage to property if he unlawfully and intentionally damages movable or immovable property of another, Hunt, South African Criminal Law and Procedure (1996) Vol II Third Edition. It would still be malicious damage to property even where the accused's conduct did not reduce the value of the property, see the case of Mashangu 1924 AD 11. So that in this case the windows have been damaged and the door also. The walls and wardrobes had holes from the gun shots. Which shows that the financial loss, sentimental value or commercial value are not necessarily the decisive factors in determining whether malicious injury to property has been committed. That may well be considered in passing sentence.

There also is the issue of the evidence of P.W.1, the doctor who handed in the post-mortem reports and medical reports. All those documents were not prepared by


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the witness. The witness merely read the contents prepared by other doctors as having, been an administrator then and custodian of the hospital's property which included also records.


In Phomane and Another v R 1985 - 90 LLR 1 at 4 the Court held that the magistrate ought to have ruled that the medical reports were inadmissible because evidence was given by the doctor other than the one who prepared the reports. In the similar vein the reports handed in by P.W.1 are inadmissible evidence as he did not himself prepare the reports.


The Court has not been told that both deceased were unwell before the incidents of that day. The deceased 'Manthuseng died on the spot and Malefetsane died in hospital a short while after his admission. It would not be unreasonable to infer that he died from the serious injuries that he had sustained.


I have already shown that besides the evidence that was given at the P.E, there is also overwhelming, evidence of witnesses who gave evidence before this Court against the accused in the commission of the crimes charged. She was seen shooting at deceased's place through the window thus damaging the deceased's property. She was seen entering the deceased's house with a gun in her hand after her husband had used a big stone to force their entry. She was seen shooting whilst already inside the house. Even if we were to believe her story that her husband did the shooting, on the doctrine of common purpose as illustrated she too participated fully in the commission of the crimes charged.


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I have in this case therefore accepted the evidence that the accused fired the shots which caused the deceased's death, and damaged deceased's property. She also fired the shot in an attempt to kill P.W.5 'Matseuoa Ramoepana. In so doing the accused must have realized that death was likely to occur R v Lechalotsana & One 1979 (1) LLR 210. The accused therefore had the requisite subjective intention to kill, at least in the legal sense.


As a result, I have come to the conclusion that the accused did commit the crimes of murder, attempted murder and malicious injury to property as charged. She is accordingly convicted of murder in count land 2, attempted murder in count 3, and malicious injury to property in count 4.


My assessors agree with my findings.


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Extenuating Circumstances

The Court having in Count 1 and 2 convicted the accused of murder, is now enjoined under the Provisions of Section 296 (1) of the Criminal Procedure and Evidence Act 9 of 1981, to determine the existence or otherwise of such factors which may lend to reduce the accused's moral blameworthiness of her acts. The Court of Appeal in Matsoai and Others v R 1967-70, held that when extenuating circumstances are found to exist, the trial Judge must specify what those extenuating circumstances are.


The accused has already been found guilty of murder in both Counts, at least in the legal sense. Evidence was led in extenuation by the accused herself. I have found that evidence to have been a bit confusing. The accused showed that the misunderstanding over the field in question started once she got married into the Ramoepana's family, but did not explain further what her marriage had to do with the dispute over the field.

The accused has also shown that the field had been owned by the elder brother to her husband who was still living during that time. She has not explained why her husband, in the presence of his brother, got involved in the dispute over that field. So much was left unexplained.


The accused has alleged remorse without substantiating that remorse which she alleges. Nothing has been said about the remaining members of the deceased's family, their children. At least a copy of the judgment over the field from Tsifalimali Central


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Court had been handed in as an exhibit thus forming part of the record in the proceedings. Judgment was in favour of the deceased, Malefetsane.


The Court has however found that there had been no premeditation, but the accused acted on the spur of the moment on realising that there was a fight between her husband and both deceased. This is a factor tending to reduce the accused's blameworthiness of her acts.


Under the circumstances, having found that extenuating circumstance does exist in this case, the proper verdict therefore is, that the accused in Count I and 2 is found guilty of murder with extenuating circumstances.


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Sentence


The Crown in mitigation of sentence told the Court that the accused has no previous convictions, thus making her a first offender.


Counsel for the accused addressed the Court on mitigation of sentence. He asked that justice must be tempered with mercy in an effort of trying to balance the interests of the society and that of the accused. The accused being a first offender, had acted at the spur of the moment. She felt very much provoked on seeing her husband being assaulted by both deceased persons. Accused has a family of six children two of whom are married and the last three still attending school. Her husband having being killed by the deceased persons' children who still mourn the loss of their parents.

Accused's conduct from the time of the happening of events to the date of trial has been commendable. She has cooperated with the police and the Court during the trial.

The delay in bringing this 1996 case before the Courts of Law has been a dark cloud which remained in accused's mind all this time. As a mother, if taken to prison for a long term of imprisonment, that might have a negative bearing on the future being of her children.


Sentencing appears to be the neglected area of the criminal proceedings, because usually it takes far less time and enquiry to settle a man's prospects and fate


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in life than it takes to find out say, whether he took a suitcase or any property belonging to another unlawfully. Much attention is usually given to questions of guilt or innocence. Once the accused is convicted, sentencing usually follows within a very short space of time


The accused has told the Court that ever since the killing of the deceased persons, she felt sad and sorry for what has happened. She has however not shown any attempts or efforts that she took in trying may be to demonstrate her sadness.


The Court has however considered all the mitigating factor placed before it together with the authorities cited in support thereof, but the Court is not prepared to lose sight of the seriousness of the offences charged. Deceased's children lost both parents in one dreadful incident. One of them even witnessed the killing of her parents.


In passing the sentence the Court should seek to prevent the need or desire for self-help from arising. It should also simultaneously refuse to take emotional revenge on behalf of the indignant society and its members, S v Thonga 1993 (1) SACR 365. Murder being a very serious offence, it would, I hope, not be irrelevant to bear in mind that if sentence for serious crimes are too lenient, the administration of justice may fall into disrepute, and the injured persons may be inclined to take the law in to their own hands.


The accused may have been angered, but as Schreiner JA stated, "naturally righteous anger should not becloud judgment."


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R v Karg I961 (1) S.A 231. I am personally of the opinion that imprisonment is only warranted where, as in this case, it is necessary to remove the offender from society for the protection of the public and where the purpose envisaged cannot be met by some alternative punishment. The punishment should fit the criminal as well as the crime, R v Zonele & Others 1959 (3) S.A 319.


In the light of all what I have said above, I have come to the conclusion that the proper sentence for the accused should be as follows:


For murder in Count 1: Ten (10) years Imprisonment without an option of a fine.


For minder in Count 2: Ten (10) years Imprisonment without an option of a fine.


For attempted murder in Count 3: Four (4) years Imprisonment without an option of a fine.


Malicious damage to property in


Count 4: Three (3) years imprisonment or M3,000 of which half is suspended for a period of three years on condition that the accused is not found guilty of a similar offence during the period of suspension.


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The sentences to run concurrently.


For Crown: Mr Seitlheko

Mr Mojaje


For Defence: Mr Mosito


A.M. HLAJOANE

JUDGE