R v Maphethekatsi and Others (CRI/T/213/2002 )

Case No: 
CRI/T/213/2002
Media Neutral Citation: 
[2004] LSHC 152
Judgment Date: 
10 December, 2004

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CRI/T/213/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

VS

  1. TOMO MAPHETHEKATSI

  2. MOTEBANG LETSENG

  3. 'MUSO MAPHETHEKATSI

  4. TSIETSI THAT JANE

  5. MOHAU MOKOMA


JUDGMENT


Delivered by the Honourable Mr Justice W.C.M. Maqutu on the 10th December 2004

On the 22nd November 2004 this case proceeded before me summarily. The accused were charged with two counts of murder in


Count 1


That the accused are guilty of murder. In that upon or about the 25th December 1996 and at or near Mokhethoaneng in the district of Berea, the said accused did each, the other of them unlawfully and in intentionally killed KELEBONE MALATA.


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Count II

That the accused are guilty of murder in that upon or about the 25 December 1996 and at or near Mokhethoaneng in the district of Berea, the said accused, the other or all of them unlawfully killed LETOALA MALATA.


All five accused pleaded not guilty to the charges. History of the case:


This case is an old one. Its preparatory examination was held on the 16th August 2001. This was almost five years after the death of the two deceased.


On the 3rd August 2004 when the matter first came before me the crown wanted to proceed with the case as a summary case although a preparatory examination had been held. There was no explanation for this conduct. There were no returns of service and only one crown witness was available. A postponement was consequently inevitable.


Before the matter could proceed Mr Mosito informed the court that a preparatory examination had been held but it was not available. The Registrar also confirmed that there was no record of the preparatory examination. It is not recorded what Miss Motinyane for the Crown said.


The court consequently made the following order:


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"The matter is postponed to the 22nd to the 26 th November, 2004. The Crown and the Registrar are directed to see that Crown witnesses are served. The preparatory examination record should be made available to all parties.


On the 22nd November 2004 Miss Motinyane and Mr Seema appeared for the Crown. Mr Mosito appeared for all the five accused. Before proceedings could begin Mr Mosito for the accused objected to the handing in of the preparatory examination as Section 92 of the Criminal Procedure and Evidence provides where the accused are formally indicted before the High Court.


Mr Mosito objected to the preparatory examination because he argued the magistrate had been both the interpreter and the recorder of evidence in proceedings that were conducted in Sesotho. He argued that in R v Mafeka 1991-96 LLR 1199 Ramodibedi AJ (as he then was) had held that such a record was hearsay. These facts were conceded by the Crown - per Miss Motinyane who added that the preparatory examination was defective. The Crown therefore asked for leave to proceed by way of summary trial.


The court acceded to the crown's request and ordered that proceedings be conducted in Sesotho there is a separate judgment or ruling on the issue. Sufficeth that both the crown and the defence concurred. Every one in court that day was a Mosotho whose mother tongue is Sesotho. There was no need for interpretation of evidence. It was agreed by all sides that Sesotho is also an official language in Lesotho.


Pwl Mapolokeng Malata was the wife of the late Kelebone Malata who died on the Christmas day 1996. She was also assaulted during the events that


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led to her husband's death. She claimed that at 5 am when she came back from the toilet she found her husband missing. All she could see was a crowd of people running in the direction of the fields. She claims she went in that direction to go and see what was going on. At a distance of 500 metres she saw her husband engaged in a stick fight with accused 5. Accused 2, Accused 3, Accused 4 and accused 1 went towards her husband carrying sticks. After that she saw nothing because she was assaulted and lost consciousness.


Cross-examination revealed that (in a previous statement) Pwl had claimed to have been assaulted by Accused 1 and accused 3 at the time they were supposed to be assaulted her late husband. In the very first statement of Pwl she had never claimed here husband was assaulted by accused 5. This was not in her statement to the police.

Pw2 had originally told the police he saw nothing of the assault, but when he gave evidence he told the court that he saw all five accused assault the first deceased.


It was on the basis of these inconsistencies that accused 1, accused 3 and accused 4 were discharged at the end of the crown case. The court remarked that this case had not been investigated at all.


When accused 2 gave evidence in his own defence it was because at 6.am on the 25th December 1996 it was admitted that he had gone to the chief to tell the chief that the anti-stock theft association intended to arrest Kelebone Malata and Letoala Malata. It seemed to the court in the absence of an explanation accused 2 might be deemed to be a party to the conspiracy to


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commit an illegal act that might cause resistance and the death of the two deceased.


Furthermore he might be the leader of that anti-stock theft association in its illegal acts to harass people on Christmas day. There were policemen within the 10 kilometre radius to deal with stock theft. Every thing depended on what accused 2 could say to abate these suspicious.


Accused 2 told the court that when he told the chief about what was about to happen, the chief claimed he had not been informed of the anti-stock operation. Just as he left the chiefs premises hundreds of people had begun to chase what he later came to know were Kelebone Malata and Letoala Malata - now deceased.


Mr Mosito urgued me not to believe that the chief could not know what the whole village knew. It also emerged from the evidence of accused 2 that his son who was one of the anti-stock theft unit had merely told Accused 2 what was going to happen. He had not sent accused 2 to the chief. Accused 2 told the court he went to the chief because although the anti-stock theft association normally co-operated with chiefs on this occasion it was strangely going it alone without seeking the chiefs sanction. Accused 2 wanted to make sure the chief knows.


Accused 2 was an old man of about seventy years of age. It would be quite an effort to chase the two deceased. When he left the chiefs premises the chase involving the entire village baying for the blood of the two deceased had begun. It became difficult to disbelieve accused 2. He could possibly be telling the truth. Otherwise his evidence was lies, he tried to shield


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fellow villagers. Accused 2 could not be convicted merely because he lied about the participation of others. I was left in no doubt that he entire village had conspired to raid the two deceased who were suspected of stock theft.


Accused 5 was called upon to answer because the court believes Pwl had consistently said accused 5 had exchanged stick blows with her husband. It turned out that she never said this to the police when she first met police. The view I take is that if she had seen accused 5 exchanging blows with her husband, she would have reported it to the police. I was forced to this view because Pwl and Pw2 had claimed to have seen what they had not seen. It was because the case was uninvestigated and there were no witnesses that they manufactured evidence.


I regard the village of Mokhethoaneng to be unlucky in covering up such a horrendous crime. The court can only hope one day justice will be done through supernatural intervention.


Critical commentary


This is the first time in my twelve years as a judge and thirty-two years as a legal practitioner that I find the police having not investigated a case at all. This is all the more shocking because two people were brutally murdered by a mob of villagers without a hearing or proof that they had done any wrong.


I called Inspector Matsela as a court witness. He said he transferred the docket to Homicide squad of the Criminal Investigation Division. That is police standard procedure, he was not answerable for what happened.


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Inspector Matsela told the court he was aware at the Preparatory Examination that the case had not been investigated.


This brings me to the Director of Public Prosecution. He must have known that the matter had not been investigated before and after the Preparatory Examination. There can be no doubt that the Director of Public Prosecution neglected his duty. He should have found out why the matter had not been investigated and directed the police to investigate it.


Justice miscarried from the very beginning. The court will be highly obliged if Director of Public Prosecution and the Commissioner of Police give reports about what happened. Unless this is done the administration of justice will fall into disrepute and the rule of law will be undermined.


If politicians stopped the investigation or interfered with police duties, that is tragic. Such conduct would render Lesotho ungovernable. Mobs cannot be allowed to murder people in the hope that this will make them happy. The safety of each and every person is in the maintenance of the rule of law. Where every wrong doer is punished by the state after due process of law and the full hearing of evidence.


The people of Mokhethoaneng have got a collective name of being murderers. This bad reputation will have to be hard to erase.


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I am obliged to release accused 2 and 5 like the others although I feel the truth has not been told. I accordingly find them not guilty.


W.C.M MAQUTU

JUDGE OF THE HIGH COURT


For Crown : Miss Motinyane

For All Accused: Mr Mosito


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