R v Makhasane and Others (CRI/T/03/2004 )

Case No: 
CRI/T/03/2004
Media Neutral Citation: 
[2004] LSHC 116
Judgment Date: 
28 September, 2004

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CRI/T/03/2004

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

V

THEOHA MAKHASANE

MOEKETSI MOLIKO

RANTSEUOA MOLIKO

MOEKETSI MABUSE


JUDGMENT


Delivered by the Honourable Mr. Justice W.C.M. Maqutu on the 28th September 2004


COUNT 1

The accused are charged with the crime of murder.


In that upon or about the 21st day of April 2000 and at or near Ha-Lumlsi in the district of Mafeteng, the said accused did each, the other or all of them unlawfully and intentionally kill 'MASEBINA SELEMELA.


COUNT 2

Accused 1 Theoha Makhasane and Accused 2 Moeketsi Moliko were also charged with count II that:


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"The accused are guilty of a contravention of Section 3 (2) A of the Internal Security (Arms and Ammunition) Act No 17 of 1996 (as amended). In that upon or about the 22nd day of April 2000 and at or near Ha Raliemere in the district of Mafeteng, the said accused one or the other or both of them did unlawfully and intentionally have in their possession firearms to wit, one 1.65 V20R model 70 pistol s/n 123792 and .38 special revolver without valid certificates at the time and did thereby contravene the provisions of the aforesaid Act.


The accused pleaded not guilty to both counts (as amended)


The events occurred in 2000 which is more than four years ago. By the time this matter was heard Lerato Hlotho who had been accused number 1 had died. Consequently the order of the accused had to be re-arranged. Accused Number 2 Theoha Makhasane became Accused Number 1 and the other accused numbers were adjusted upwards accordingly.


The first crown witness (PW1) was Teronko Setaka. PW1 was an accomplice and he was duly told by the court what his rights and that if he gave his evidence satisfactorily he would be exonerated of the charge with which the accused are charged. However, if he did not, he might later be charged with the crime with which the accused are charged. The accused told the court that he understood the warning and still agreed to give evidence.


PW1 told the court that on the 21st April 2000 while they were at a shop at Ha-Raliemere Lerato Hlotho (now deceased) came. It was between 5 and 8 pm. They had been drinking alcoholic beverages. Pwl told them that his uncle Moeketsi Hlotho had been robbed of his blanket and bag by


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Phehello. This happened after uncle had just got off the buses. During the robbery his uncle had be injured.


Lerato Hlotho asked accused 1, accused 2, accused 3 and Pwl to join him and go to Ha-Lumisi and take their revenge on Phehello and also recover his uncles goods. All of them agreed to go to Phehello's home as Lerato Hlotho had requested. Ha Lumisi where Phehello's home is about 2 to 3 kilometers from Ha-Raliemere, the village of the accused. The three accused, PW1 and Lerato went to Ha-Lumisi.


PW1 told the court that when they went to Phehello's home, he was armed with a stick, accused 1 was not armed with stick. Accused 1 had earlier shown him a 7.65mm pistol which he was carrying, Pwl and accused 3 and Lerato Hlotho were also carrying sticks, Pwl knew Phehello. PW1 told the court that he could not read and write although he seems to have signed his statement before the police.


PW1 says when they got to Ha-Lumisi they proceeded to Phehello's home. They found Phehello not at home. At this time visibility was poor, as night had begun to fall. On their way back they saw two people that they could not clearly identify because it had become dark. These people began to run. Lerato, the three accused and Pwl chased them. They were throwing stones at these people. These two people ran into the yard of Kiname. Lerato Hlotho and the accused followed them into this yard. The two people and the residents of this place who had been outside went to the house.


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Lerato Hlotho, the three accused and PW1 got into the yard. Lerato went to the window and began firing several shots into the house, accused 1 tried to fire his 7.65mm pistol, but it would not fire. Accused 1 turned his back away from the house, cocked the pistol and it fired. Accused 1 then turned towards the house and fired at lease twice.


The noise attracted neighbour's attention. Consequently (according to Pwl) Lerato, the three accused and Pwl ran away before neighbours could come to the place. PW1 says he had been unaware (before Lerato Hlotho fired) that Lerato Hlotho had a firearm. Consequently on the way to Ha-Raliemere PW1 remarked that Lerato Hlotho's firearm was powerful. Accused 2 told Pwl that the firearm Lerato Hlotho had belonged to him. They parted and went to their respective homes.


The following day at 5 am the police came to arrest them. When they got to Pwl they had already arrested Lerato Hlotho.


Under cross-examination Pwl said that Pwl denied that there was any firing from the house and from the people who were fleeing. Pwl insisted that all the accused were in the forecourt inside Kimane's yard. Lerato Hlotho fired into the house. Accused 1 did turn away from the house when his 7,65 pistol could fire. After it had fired, accused 1 fired towards the house several shots - about four shots. Pwl emphatically denied Lerato Hlotho fired the 7.65 pistol. Pwl said Lerato Hlotho fired the .38 special revolver. PW1 said he, the three accused and Lerato Hlotho only ran away when they realized the neighbours were coming because neighbours had woken each other.


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The next witness was Poho Sefuthi. Poho Sefuthi claims he was with Monyatsi Selemela, they had just got down from the taxis, as they were going they met a group of men and this group of men for unknown reason asked for tobacco and as they were there Monyatsi realised that they were in a fighting mood. He said they should run and they ran, there was a third person nearby who also started running. The evidence of Monyatsi Selelema Pw3 is not that different. Save that he ran straight home, but Pw2 Poho Sefuthi ran to the home of Kiname Selemela and on the way he had asked for help from neighbours. He told neighbours that he was being chased and he got into this yard of Kiname Selemela and those people who were chasing him fired a gun. As they fired and he ran into the house and there was more firing, and eventually after the firing had ceased he found that the wife of Kimane Selemela had been shot.


At this stage let me show that during cross-examination of Pwl and Pw2, it was suggested that there was firing from these people who were running away or from the house. Cross-examination implies some one from the accuseds' group only returned the fire. But both Pwl and Pw2 showed that there was no firing from that direction. So we have through cross-examination a suggestion that the accused fired back they did not initiate the firing but this was denied.


Trooper Ranyali Pw4 gave evidence that he was one of the people who arrested these accused and among the duties he performed to recover the 7.65 from accused No.l and Pw5 Trooper Mafatle says he recovered a .38 from accused 2 but accused No2 denies that any firearm was ever found from him, this he did through cross examination. Accused 1 showed that


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the 7.65 pistol was not recovered from him. The suggestion of accused 1 was that rather it was the .38 revolver that was found in his house.


Kiname Selemela Pw6 is the husband of the deceased who is the subject of the murder charge of the accused. He says his recollection of events is not good. Kiname Selemela Pw6 showed how Pw2 Poho Sefuthi reported that he was chased by a group of people. He had heard the voice of Pw2 who eventually got into his yard. From this group of people who were chasing Pw2 firing began. He tried to ask them what was wrong they would not answer. He ran into the house and when he was in the house and he was asking what they were doing and what they wanted. They said he should take out those people from his house and someone was firing a gun from the direction of the window into Pw6's house. During the firing he heard his late wife emit a sound "ouch" which implied she had suffered pain. After that he fled. When he came back after the firing had stopped he found his wife was injured and he got a vehicle to take his wife to the hospital. It is now common cause that his wife died.


Then came Tiisetso Sefuthi Pw7. This witness only tells us of what happened in the village and his evidence does not take the case very far. After this witness came Sgt Thamae Pw8. Sgt Thamae Pw8 appeared to be hesitant and defensive, she claimed to have recovered two shells of a 7.65 pistol and a bullet of a .38 revolver. It had already been fired and there was something she thought was also a shell which was made of copper and some lead. She recovered these outside the house of deceased at the forecourt. She was very confused as she gave evidence. She


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ordered these things to be taken for ballistic examination including the 7.65 pistol. The .38 revolver was never taken for ballistic examination.


Trooper Mafatle Pw5 under cross-examination had suggested that the .38 revolver was not taken for ballistic examination because there were no shells of that gun that were found. But Sgt Thamae Pw8 was not sure. Then at that stage there was medical evidence (handed in as Exhibit "A") which shows clearly that a bullet was found in the liver of the deceased and it was handed to a police lady. This bullet has never been accounted for. We do not know what happened to it save that the doctor said it was extracted from the liver of the deceased. The statement of the ballistic examiner was handed in by consent and marked Exhibit "B" although it was not an original. This statement had been made by Inspector Pali.


Inspector Pali was the next witness after Sgt Thamae Pw8 and he gave evidence as Pw9. He showed that there were two 7.65 fired cartridges which matched with the firearm which showed they were fired form the 7.65 mm Pistol serial No. 123792 Exhibit 1. There was A .38 fired bullet and one bullet jacket of a .38 special revolver. This was made of copper and a lead core bullet, he examined these things microscopically and he made a report 'Exhibit Bl" which he handed in. Exhibit "Bl" was the original of Exhibit B. Pw9 also handed Exhibits "C" and "D" which showed the similarly between the case of a bullet he fired from the 7.65 pistol Exhibit 1 and the two cartridge cases that were brought for examination.


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He was cross-examined and showed that he marked these exhibits carefully. He had a scratch identifying marks on a bullet. Now he confirmed that he was never given a .38 special revolver to examine. Although one of the shells was missing he was able to show from the marks he made that the exhibits that had already been handed in - that is Exhibits 3,4 and 5 had passed through his hands.


The last witness Pwl0 was Trooper Mochachane who was one of the people who arrested the accused. He was not sure who of the accused he arrested but he was with Sgt Matla, Trooper Mafatle and others, he says he also arrested accuse No.l who gave an explanation. He did not meet accused No.2 but he also arrested accused 3 and the late Lerato Hlotho. In cross-examination he denied that the accused were assaulted.


I must first say before getting to the evidence of the accused that I was not happy with the police evidence and the way they handled this case. It was not professional, there was also a great deal of negligence. There is no reason why a bullet that was found inside the deceased is not before court. That has never happened as far as I know in this court that such an important exhibit is not accounted for in the evidence. Only the Doctor tells us he gave the bullet to a policewoman. I asked Crown counsel Mr. Seitlheko to find us this police woman, but here it was all confusion. I can understand an exhibit being misplaced or lost in the exhibit room - but in this case the police have not acknowledged the existence of this bullet that was taken out by the doctor from the deceased's liver.


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Now I come to the evidence of the accused. The first accused to give evidence was Theoha Makhasane, accused 1. He says he had a .38 special revolver on this day and he agrees with Pwl Teronko Setaka that he was not carrying a stick however, he denies he ever showed Teronko Setaka Pwl a 7.65 pistol. He was, carrying a .38 special revolver and it is a firearm that he usually goes around with and he admits it was not licensed. He is not sure of its serial number. He says on this particular day while they were drinking at a shop Lerato Hlotho came to them and told them that his uncle had been robbed on his way home by one Phehello and he asked them to accompany him to Ha-Lumisi where Phehello lived to go and recover the blanket and the bag of this uncle that had been taken. So they left their village of Ha-Raliemere to this village and they did not find Phehello at his home.


They walked a few paces, saw two people that they did not know it was around 7.00pm. It was getting dim but it was not dark, and requested these people to stop. These people did not stop they started running. At a distance of 8 paces from these people he had identified Phehello. Accused 1 said they chased after them. These people ran until they entered a yard and a house. They were throwing stones at them as these people were running. When he and the other accused got to the yard in which these people had sought refuge, the people they were chasing started firing at the accused. Gun reports came from inside the house. None of the accuseds' group were shooting at that stage. It was those people who started shooting. When these people fired at accused 1 he tried to fire with his own firearm. It would not fire. He turned around and fired the firearm to the ground, it fired. He was near the gate outside the yard. There was a


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lot of noise of people gun reports from firearms and this noise came from inside the house.


The people accused 1 was with were shielding behind the aloes. Lerato Hlotho fired a firearm returning the fire while those people were firing at accused 1 and his group. Accused said his other companion were carrying sticks. Accused 1 claimed he never fired his firearm towards the house. When they heard a noise they ran away. The people who entered the house are those whom they were chasing. He and the accused ran away. The only person who entered the yard was Lerato Hlotho. Lerato Hlotho did not enter the house. Accused No.l says he only saw that Lerato Hlotho had a 7.65 firearm after the police had arrested them. As they ran they parted ways but they were subsequently arrested by the police, and after the arrest the following day the police asked him to produce his firearm. He instructed his wife to give the police a firearm, the wife said they could go and find it for themselves in the house.


The police went in and came out with a .38 special revolver. The witness said the .38 revolver Exhibit 2 that was in court was not the one that the police recovered from his house. His .38 revolver was silver in colour and had a brown wooden handle. After all that he says he was kept in police custody for 3 weeks being beaten. The police wanted him to agree that the 7.65 pistol was his. He says the police got a 7.65 pistol from Lerato not from him as they claim. He says the police wanted him to admit that the 7.65 pistol was his because the .38 revolvers belonging to him was not functioning. He told the court that it was working although it had not fired the first time but later fired when he was not facing the house.


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Then after this witness there was accused 2. Accused 2's evidence is that he was invited to accompany Lerato to recover his uncle's goods from Phehello and he readily agreed and they went and their aim was to collect those goods. It was not true that they were going to avenge the beating of Lerato's uncle, as well as Pwl had said. He had a stick like any Mosotho man when they went and got there. They did not find Phehello and there were some people they met on the way whom they chase and threw stones at them because those people were running away. They ran into Kiname's place. He was outside the yard with the others. He heard several gun reports while he was outside the yard. He was not aware of where the gun reports came from.


He did not even see Kimane's house, the house was 10 paces away. He only saw there was a house. He heard gun reports and ran away alone and went to sleep. While accused 1 was in police custody the police beat him. Accused 2 denied that he was the one that produced the .38 revolver marked Exhibit 2. He even denied that he knew Trooper Mafatle. He said Pwl is not telling the truth when says after they had run away from Kimane's place, Accused 2 said the gun that had been fired by Lerato was his. He was just surprised that Pw5 Trooper Mafatle claims that the firearm was found in his possession. Under cross-examination he said he just did not see who was shooting. He ran away and he was never shown any firearm. He does not really know what he was arrested for because police never told him. The police in asking questions never asked him questions in relation to the death of the deceased and the circumstances that surrounded it.


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The last defence witness Rantseuoa Moliko, accused 3. He also says they went with Lerato to Phehello's place to recover Lerato's uncle's property i.e the bag and the blanket. He had thought that Phehello would be human enough, to cooperate to give them those things without any problems. Yes, it was becoming dark but they could still recognize people when they got there and they did not find Phehello. They walked 14 paces from Phehello's home. They saw three people, the third person was Phehello, he is a person he knows well, he did not identify the others. They just asked those people, "stop we would like to talk to you." Those people stared running and on the way he did not throw any stones. He did not notice any of his friends throwing stones as they claim they did.


After that they entered the yard, they made a noise after that he heard a gun report, they were beside, the yard by that time, none of their group entered the yard. He did not see any of them enter the yard from the time he heard a gun report. He hid for about 5 minutes and ran home. He says they were all armed with sticks when they left home. The police did come. It was around 2.00 a.m. at dawn when the police came to arrest them and the police did not reveal their individual names. They took them to their vehicle. They spent 3 weeks at the charge office. The police were just beating them not being specific about what they really wanted from them.


They were not telling them but they said they should tell the truth. They were not telling them the type of truth they wanted. He only had bruises. He did not see that Lerato had a firearm. He hid himself because his intention was not to go and fight, then after that followed cross


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examination. There is not much to it except that he saw nothing, he just hid, he did not throw a stone. He says these people fired but when he is asked; "did you see them?" He is not sure and he says he never entered the house.


My task is to determine what is true about this case. The Crown conceded that there is nothing in the evidence that can show that the accused had intention to kill. The only issue that the Crown is pressing is that I should find the accused guilty of culpable homicide because they had a common purpose to go and cause mayhem there. To assault Phehello and when they got there they were negligent about what they were doing in order to get Phehello. The defence says because the specific firearm that was fired at the deceased was not identified none of the accused should not be found guilty.


The defence say common purpose is out, because the accused did not have a common purpose to shoot that poor lady who died. They had no purpose, what happened there, just happened because it just happened and none of the accused associated himself with what was happening. Whatever shooting was done on the side of he accused it was done in self-defence.


The police evidence is highly unsatisfactory. But the evidence that comes from both sides, from the accused and the accomplice has some common features. The first thing we have to do is, to be careful with the evidence of an accomplice. See the case of Rex v Ncanan 1948 (4) SA 399. An accomplice has an inside knowledge of the crime and he can easily


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substitute whoever he likes for what was done by others and put in however he likes at any point in the chain of events. Mr Seitheko said the evidence of an accomplice was impressing and it was given well. That is not enough, because Schreiner JA at page 405 of Rex v Ncanana said;


"...an accomplice is not merely a witness with a possible motive to tell lies about and innocent accused, but is such a witness peculiar equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth."


We had considerable difficulty when he said he was compelled he did not go there willingly under cross-examination and therefore because of this feature we had to be very careful lest we convict the innocent. That is the first thing that this court has to bear in mind. Consequently where the evidence of an accomplice Pwl is uncorroborated, the court should warn itself before it can convict for the reasons I have already stated about an accomplice. The accomplice said the accused and Lerato and himself went in search of Phehello to go to Phehello to go and avenge the assault of Lerato's uncle suffered at the hands of Phehello and recover the goods.


There is no doubt that Lerato and the accused were engaged in an illegal act of self-help when there are courts and other institutions of the state to help the people who have been wronged. They decided to go armed. Accused No. 1 admits he had a firearm and the others had sticks and there were five people against one man. At the very least the accused, Pwl and Lerato were going to Phehello to go and intimidate Phehello. To say they were going there peacefully cannot be the truth, the court does not believe that. They were going there, as the accomplice said, to go and beat up this


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man take the goods. If they could find him, they did not intend to kill Phehello, but the aim to do this unlawful act is there, and the court accepts what the accomplice said. Pwl the accomplice is corroborated by circumstances surrounding the going of accused there.


The accused admit they went being many against one person. Some had sticks one had a firearm. This admission corroborates the accomplice. The accused corroborate the accomplice by saying when they saw people that they do not know they start giving a chase believing Phehello is one of them. On the way they began to throw stones at them and these people ran, until they got to the place of Kiname Selemela Pw6. The common purpose to use violence in throwing stones cannot be disputed. Had on of the stones killed one of those people, the accused would be guilty of culpable homicide.


The accomplice Pwl is corroborated by Pw2 and Pw6 that it is the accuseds' group that began the firing, and that the fire was not returned. Accused 2 and accused 3 have said that they are not sure, they think the firing came from the opposite side. Accused 1 suggested that firing did come from the accuseds' side at one stage the Lerato Hlotho discharged a firearm. The accomplice Pwl, Kiname Selemela Pw6 and Pholo Sefuthi Pw2 say there was no firing from their side. There are no grounds for not believing those people. We just have to compare the evidence of he accused and that of Pw2 and Pw6, their evidence on this point was not shaken. You will find that there is no doubt that the accused were not being truthful. Their Demeanour, the way they answered questions shows clearly that they were not telling the truth.


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Just to make one example about what accused No.l said - the police already had the deceased Lerato Hlotho in their custody with the 7.65 pistol, if we are to believe the accused. Why should they torture accused 1 to say a firearm which was found with Lerato(formerly Accused 1) was not found on the late Lerato? The police are many things but not that stupid. They already had the culprit (if we are to believe the accused 1) who was found with a 7.65 pistol, then why should The police want it changed into a .38 special revolver? To prove what? They did not know Lerato Hlotho would die that time. What is happening here is that accused 1 is trying to foist the 7.65 pistol that was found on him on the late Lerato Hlotho. Accused l says the police tortured him to reverse the roles, no court would believe that in the circumstances of the case. Pwl's evidence about the 7.65 pistol belonging to accused 1, is corroborated by the police who were be bad witnesses. His strategy is to blame the late Lerato Hlotho for the death of the deceased in the hope that this will relieve him of liability.


There is a confirmation of the evidence of Pwl's (the accomplice) by Accused 1 that 2 firearms were used there. A .38 special revolver and a 7.65 pistol. This corroborates the accomplices evidence. Who of the accused had which firearm is immaterial. The accomplices evidence leaves the court in no doubt that it was Lerato Hlotho who must have hit deceased as he was firing through the window. This evidence is corroborated by Pw6 Kiname Selemela. I think the evidence we have to accept without doubt is that of the accomplice rather than that of the accused. In the crucial matter of the firing of 2 guns at that sport is


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corroborated by accused 1 himself. So I have no difficulty in saying Accused 1, Lerato Hlotho fired recklessly or negligently towards the house and during the process accused 2 and 3 were there in the yard at the forecourt wanting Phehello as the accomplice said. No court would ever believe what accused 2 say, namely that he was there for 10 seconds or 30 seconds.


Mr Molapo for the first accused argued that there could be no common purpose in a case of culpable homicide. He referred me to the case of S V Coetzee & Another 1974 (3) SA 571. It appears Mr Molapo only read part of the headnote of the case. However the rubric of this case S v Coetzee on page 571 continues:


"If two or more accused participate in an assault which leads to the death of the victim, any one of those accused is guilty of culpable homicide if he should have foreseen that any one of the blows which formed part of the assault as a whole could cause death."


In this case the first accused (and the other participant to the assault) in firing towards the house in which deceased was should have foreseen that one of the bullets might kill a person.


It will be observed therefore that the bald statement that is found in the headnote of S' v Coetzee to the effect that "there can be no common purpose in the crime of culpable homicide" could be misleading. In culpable homicide the foreseeability test is an objective on while in murder the test of guilt is specific intent. The finding of common purpose in a


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case of culpable homicide has been criticized although it is accepted as settled law. Consequently Horwitz J in R v Tsosane & Others 1951 (3) SA 405 DE said.


".. .But it seems to me, nevertheless, to be a contradiction in terms to say that the death of the deceased was caused wrongfully but without an intention to kill or to cause serious bodily harm, and maintain at the same time that there existed a common purpose to cause such unintentional death. However that may be, I prefer to found my decision herein on the absence of evidence to justify the finding that common purpose existed."


In the case of Rex v Tsosane & others Horwitz J found those accused guilty of assault on the basis of their individual assault on the deceased.


The problem Horwitz J had in Rex v Tsosane is that he thought in culpable homicide there is no mens rea at all. The correct position was put by Holmes JA in S v Matshiza 1970 (3) SA 747 at page 752 A-C where the learned Judge said:


"Accordingly, if a assaults B and in consequence B dies, A is not criminally responsible for his death unless


  1. He foresaw the possibility of the resultant death, yet persisted in is deed, reckless whether death ensued or not; or

  2. He ought to have foreseen the reasonable possibility of resultant death.


In (a) the mens rea is the type of intent known as dolus eventualis and the crime is murder; in (b) the mens rea is culpa, and the crime is culpable homicide."


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In Rex v M. Phoofolo 1971 -73 LLR 255 Jasobs CJ ( in this common purpose case) also spoke of mens rea for culpable homicide at page 264 B and said:


"This requirement of mens rea in the case of culpable homicide is satisfied if a reasonable person in the position of the individual participants to the unlawful act which caused death would have realised that serious injury could be caused and would have foreseen that such injuries could possibly be dangerous to life."


It will again be observed that in S v Nkwenja 1985 (2) SA 560 that the South African Appellate Division found the two accused guilty of robbery and culpable homicide where the apparent injuries on the deceased were apparently of a light nature. The reasoning of the Court was that when the accused "divided their roles and decided to use violence in order to overcome possible resistance, it was reasonably foreseeable that the use of violence for that purpose in those circumstances could possibly result in death." From the aforegoing it is clear that common purpose can be deemed to exist in culpable homicide cases.


Mr Matiea for accused 2 and Mr Shale for accused 2 argued that their clients were briefly outside deceased yards and fled when thy heard gun reports. They could not therefore be associated with the actions of people who fired a revolver and a pistol that possibly killed the deceased. There was nothing that accused 2 and 3 did to associate them with the actions of those who discharged firearms at the premises of the deceased. These are issues of credibility to which I will go into later.


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Mr Seitlheko and Mr Shale referred me to the case of S v Mgedezi and others 1989 (!) SA 687 for prerequisites that have to be met before an inference of common purpose can be made. They referred me to the rubric (case summary) of he case at page 868. These are that the accused must


  1. Be present at the scene where violence was committed

  2. Be aware of the assault of the victims.

  3. He must have intended to make common purpose with those who were actually perpetrating the assault.

  4. He must have manifested his sharing of the common purpose with the perpetrators of the assault by performing on act of association with the conduct of the others

  5. He must have the requisite mens rea.


Mr Seitlheko for the Crown conceded that evidence does not show that any of the accused had a direct intention to kill, although the negligence of some of those who fired at the house of the deceased bordered on recklessness. But where there is doubt the accused get the benefit of it. Consequently he asked the court to find the accused guilty of culpable homicide.


In general the accused lied. Miller JA in S v Dladla 1981 91) SA 526 at page 530 D noted:


"That an innocent person may falsely deny certain facts because he fears that to admit them would be to imperil himself, is well known and has often be recognised by the courts."


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However in this case the evidence of the accomplice is well corroborated -even by the accused themselves at places. There are many unsatisfactory issues in this case but they have nothing to do with the coming of the accused into the yard and the negligent firing and attack on the occupants of the house and demanding that the occupants, take out that person. So they joined common purpose in using that type of negligent violence together to get the person they regarded as Phehello out of the house. Unfortunately, they killed the deceased whom they did not wish to kill, that is what culpable homicide is. It could only be murder if they had an intention to kill a person, but killed a wrong person accidentally. The Crown has conceded that intention has not been demonstrated.


The crown had problems with count II. The evidence of the police was very unreliable. It struck me as strange that the .38 special revolver had not been taken to the fire-arms examiner. As if that was not enough, even the bullet that had been extracted from the liver of the deceased and handed to a policewoman vanished, it was never before court. Negligence of this kind is unusual.


PW4 said he took the 7.65 firearm from accused 1 's home. Accused 1 says that is not the true. Accused 1 said the firearm he had was a .38 revolver which was silvery in colour 0 not the 7.65 automatic pistol Exhibit 1. Before the court was a black .38 revolver Exhibit 2 allegedly found in the possession of Accused 2.


The question that the court asked itself was what happened to the .38 revolver that accused 1 claims he had. The issue could simply be settled


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by finding that accused 1 was not telling the truth. In the circumstances of this case that could only happen if the evidence of the police evidence was credible. On this issue of who possessed what weapon (with or without a licience) I cannot trust the evidence given by the police together with Pwl - the accomplice.


Pw5 told the court that he recovered the .38 revolver Exhibit 2 from accused 2 and handed it to Pw8 Lance Sergeant Thamae. This weapon was never sent to the firearm examiner. This was an uncommon omission. It was necessary to determine whether or not it had been recently fired. If accused 1 was right then the police had lost the .38 revolver from him and substituted a different one.


Pw8 Lance Sergeant Thamae gave evidence that on the 22nd April 2000 she went to the scene of crime where she recovered a shell of a 7.65 pistol which was marked Exhibit 3. She also recovered a spent bullet made of copper marked Ex 4. There was also a lead dead bullet marked Exhibit 5. There was also a dead bullet Exhibit 6. Under cross-examination it turned out that Pw8 filled an LMP12 form which showed that live ammunition of a 7.65 that was handed to the Clerk of Court of the Magistrate Court were 5 not 2 as Pw4 Trooper Ranyali had deposed. There were also 2 shells of a 7.65 not one as Pw8 had stated in her evidence in evidence in chief.


I was not happy with the entire evidence of Pw4, Pw5 and Pw8. Their demeanour and their recollection of events was not satisfactory. It was as if they were hiding something. There was the evidence of the accomplice


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which should have corroborated what the police said. In S v Vreden 1969 (2) SA 524 at page 531 Leon J said the following of an accomplice witness:


"An accomplice is a person with a possible motive to tell lies about an innocent accused to shield some other person or to obtain immunity"


I was left with a feeling that the police in this case had made such a bad job of the investigation of the case that they were cooking the evidence. The case had been investigated by a group of policemen but due to bad leadership a lot of evidence had not been properly assembled and kept. I found the evidence of Pwl the accomplice in many respects unreliable and artificial on the issue of possession of firearms. It was as if he had come to corroborate what the police wanted him to say.


Pwl said accused 1 showed him alone that he had a 7.65 pistol for no apparent reason on their way to Ha-Lumisi to commit the self-help crime against Phehello which ultimately led to the accidental death of deceased. I was not persuaded that Pwl was telling the truth. I was left suspicious that the truth is different. He was only saying so to corroborate the police story.


In respect to the .38 revolver that was (according to Pwl) fired at the scene of crime by Lerato Hlotho Pw 1 gave a very suspect story. According to Pwl on the way home he remarked that Lerato Hlotho's firearm was powerful. Accused 2 said the .38 revolver was his. That is how he knew the .38 special revolver belonged to Accused 2. Under cross-examination Pwl said "I saw and identified that .38 special revolver when Accused 2 produced it when we were arrested." PW5 a policeman had said the


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accused 2 had gone with them to produce the firearm as a result of questions they asked "and eventually accused 2 co-operated and produced the firearm." Nowhere is it said the accomplice Pwl was an eye witness. I was not impressed with Pwl on this issue. I was left uncertain that I was being told the truth.


The charge sheet also displayed confusion from the police. They charged the accused together as if they possessed the firearms together when each one should have possessed his own firearm alone. Consequently I gave the accused the benefit of the doubt on illegal possession of the firearms because I could not be sure they were actually the ones that the accused possessed.


The evidence that indirectly supported count 1 was that of the accused themselves. It was corroborated by an independent witness Pw6 that I found credible.


What was clear was that Lerato Hlotho and Accused 1 had discharged firearms at the house or in the vicinity of the house of the deceased, supporting the common purpose of all the accused to get Phehello. Accused 1 corroborated the accomplice on this issue. In my view it was immaterial which firearm was discharged. The other accused and the accomplice were nearby in the deceased's yard or next to it. It was an issue of credibility where exactly the accused and the accomplice Pwl were and what they were doing.


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Stand up accused 1. On count 1 I find all three of you guilty of culpable homicide my assessor agrees. You may be seated. Yes Mr Seitlheko.


CC: No previous convictions.


HL: No Previous convictions? Yes Mr Molapo.


SENTENCE


HL: Yes, all of you tell us you have families I symphathise with you up to a point but what about Kiname Selemela? He has lost a wife who had wronged you in no way. You just got to his house behaving like mad people and killed his wife. Now as if that is not enough you come to lie and make a long trial, if you had pleaded guilty your sentence would be lighter, that is a principle. You do not waste everybody's time and then at the end you expect the court to be very lenient and happy with you. Now that is the first thing. There is one more thing, that you are relatively young. But you were all over 21 and quite mature, that you went drinking that Lerato probably had some influence over you as the accomplice said. I will also take into account that accused 3 did not have a firearm; accused 2 also did not have a firearm. Lerato seems to be the one who killed deceased and Accused 1 had a firearm and fired it there. So I will give you different sentences for that reason.


Now stand up Accused 1 have already told you that Kiname Selemela has lost his wife and his children have lost much more than your children will suffer when you are in prison. Nevertheless I


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have tried to be as Moderate as I can, you cannot make sentences too light otherwise people will take the into their hands, as Lerato Hlotho and yourselves did, if courts do not punish serious crimes firmly. Accused 1 Theoha Makhasane, is that you?


Al: Yes my Lord?


HL: You are sentenced to 4 years imprisonment. Sit down. Moeketsi Moliko, is that you?


A2: Yes my Lord.


HL: You are sentenced to 1-year imprisonment. Sit down.


Accused 3 Rants'euoa Moliko, You are sentenced to 9 months imprisonment


W.C.M. MAQUTU

JUDGE OF THE HIGH COURT


For Crown : Mr Seitlheko

For Defence ; Mr Molapo

Mr Matiea

Mr Shale