R v Hlasoa (CRI/T/34/99 )

Case No: 
CRI/T/34/99
Media Neutral Citation: 
[2003] LSHC 107
Judgment Date: 
30 September, 2003

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CRI/T/34/99

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

Vs

MOLIBOEA HLASOA


JUDGMENT


Delivered by the Hon ML Lehohla, C.J. on the 30th day of September, 2003


The accused pleaded not guilty to two charges put to him in counts I and II respectively.


In count 1 he was charged with the crime of murder it being alleged on behalf of the crown that upon or about the 4th day of February, 1995 at or near Tsiame in the district of Butha-Buthe, the said accused did, unlawfully and intentionally kill 'MUSO TSATS1.


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In count II the charge was that the said accused, on the same day and around the same place as above he unlawfully acquired or had in his possession a .22 pistol serial NO: 766834 without a firearm certificate in force at the time.


Even as early as at this opening stage of my judgment it is important to indicate that the crown led no evidence to link the accused with unlawful possession of a firearm. Needless to say none was produced in court. Furthermore even when challenged in submissions by the defence to substantiate the basis for the charge in count II the crown failed to rise to the occasion. The court therefore without much ado finds itself left with no option but to find the accused not guilty and acquit him of the offence charged in this count on the basis that there hasn't been adduced any evidence to support that charge.


In an endeavour to sustain the charge in count I the crown led in the following order the evidence of:


PW3 MOKOENA SEBAKA


PW5 SELEMO TSOSANE


PW13 MAPITSO TSOSANE


PW10 TEFO NONYANE


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PW 6 SEMETHE MOCHACHE


PW17 Detective Tpr NTLAMA


and PW18 Dt/Tpr MOLTBELI


Otherwise the evidence of PW1 MAMOKHETHI TSATSI and PW15 DR RAMOKEPA was formally admitted, read into the recording machine and thus made part of the proceedings in this trial. An application however by the crown to admit the evidence of PW 7 the late Sgnt Matuma was refused.


For its part the defence at the conclusion of the crown evidence led the evidence of:


DW1 MOLIBOEA HLASOA (the accused)and


DW2 MAPIUS MOPELI HLASOA (Chieftness of the area)


The evidence of PW3 Mokoena Sebaka was to the effect that on the day in question he was at his place of work where he is a trader running a cafe business.


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This witness testified that it was in the evening when he saw four men arrive consisting of three that he knew and the other unknown to him. The three he knew were the accused, the accused's younger brother Pofa and Leburu.


When these four arrived PW3 says he was behind his counter. However the four didn't quite enter but instead peeped through the door an went back out.


PW3 was quick to inform the court that he was alarmed owing to the manner the four came leaving him in no doubt that they were not in a peaceful mood.


He stated that the four were wearing tiger blankets, white gumboots, ordinary hats and carrying sticks. The witness says that although it was after sunset one could identify a person as far away as the Court of Appeal gate.


A matter of somewhat strange significance struck PW3 in the sense that although it was not cold and the four were not herd-boys they were nonetheless wearing these blankets. The hats themselves were woollen and bearing the letters USA inter-woven in them.


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After the four had left, PW3 says one SEKOBI came to him and made a report following which PW3 verified the contents thereof in that when he proceeded to where the report directed him he found the deceased 'Muso lying on his back. Along his way to the deceased PW3 saw Selemo proceeding towards his parents' home clutching his left breast.


PW3 after observing the deceased made for Selemo's home where he and Selemo's parents secured a vehicle and rushed Selemo and one Mphongoa who had sustained gun shot injury on the knee to hospital in that vehicle.


Later PW3 and others stood guard over the deceased throughout that night.


In the morning, police came and examined the deceased. It was at this stage that PW3 was able to observe a hole as if made by a bullet on the base of the deceased's neck. It is this bullet wound that medical evidence attributed the deceased's death to.


The body was conveyed by police in a vehicle to the Butha-Buthe Mortuary. Neither the accused nor any of his companions was at the scene throughout the time that PW3 was there.


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Under cross-examination PW3 stated that it was true that he said the deceased was his friend and he admitted feeling aggrieved that his friend had died.


PW3 admitted being a member of a vigilante group operating at Tsime called "KOPANANG MATLAO". He said this group performed the function of preventing mischief and theft at Tsime armed with sticks at night. At day time they went about their normal businesses.


PW3 admitted that the deceased also belonged to this group as well as Selemo Tsosane, Khutsoane and Thabo Makuka. He however denied that members of this group also belonged exclusively to the same political party. He nonetheless admitted knowing that he and the others mentioned above belonged to BCP while others who belonged to the vigilante group he didn't know which political parties they belonged to. PW3 said he didn't know which political party the accused belonged to.


PW3 testified that he was not present in January, 1995 when police had to go to reprimand this vigilante group nor was he aware that the police were concerned about the behaviour of members of this group who were tending to become a law unto themselves. It is common knowledge that the BCP was in Government around the


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time in question.


PW3 was pointedly told that police were concerned about the vigilante group's interference with accused's business - the latter was running a minor business selling cafe goods - the source of this interference being based on the group's disapproval of the accused's political beliefs.


In fairness to this witness and for his benefit Mr Ntlhoki for the defence brought to his attention that a complaint was laid by the accused before DW2 chieftainess 'Ma-Pius Hlasoa about the lawlessness of the vigilante group as a result of which DW2 called in aid the assistance of police who came at least twice to the area to try but in vain to put the situation under control. PW3 was told that DW2 would come to testify to this and indeed she did.

A letter of complaint addressed by DW2 to the police and her Principal Chief was read paragraph by paragraph (where relevant) to PW3 showing that PW3's group was lawless and that roughly a month later than it was written the deceased met his death.


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With the abundance of evidence charging PW3's behaviour in the manner it does


I am inclined to think that PW3's plea of ignorance to all this is insincere in the extreme.


Indeed his pretence in this regard was detracted from when the court questioned him and he gave his replies in the following text:-


Court: "Heard of Police Pitso that you didn't attend------? The one I attended

was by Police at Tsime.


I was talking about one you didn't attend-------? I heard from the deceased that the accused was complaining that his vehicle was being stopped from bringing supplies".


This admission goes a long way towards supporting the accused's version as deposed to by DW2 that the accused had laid complaints about PW3's group towards the accused and his business.


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PW3's lame excuse that the police sought to intervene for the accused because they were misinformed about the alleged interference by the vigilante group has an unconvincing hollowness regarding its truthfulness. Consequently I reject it as a useless attempt to cover up acts of misconduct which recoiled clumsily on the perpetrators.


I use the word "clumsily" with great caution because the resultant and unfortunate act itself was not prompted by perception of immediate danger that could be warrantable in line with the notion of legitimate self-defence accepted in our law. The unfortunate act was instead a result of unleashing at a wrong time the accumulation of pent up feeling of understandable though not excusable indignation at the raw deal the accused had been made to tolerate for a long time; setting at naught both police and the chieftainess's attempts to bring the situation under control and possibly perhaps allay the accused's keen sense of grievance he was justifiably labouring under.


The next witness for the crown was P W5 Selemo Tsosane who testified that on the day in question and at the particular time he was engaged in playing a game of cards in his shack with some boys. Not long after the deceased and another had left


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the rest of card-players, PW5 heard a gun report exploding from outside. Almost at

the same time he heard an utterance " Where is Selemo?". PW5 said he identified the voice uttering these as Pofa's. See Page 18 of Court's notes. When he went outside his shack he found himself face to face with Pofa, Leburu and the accused. A shot was fired from among the four confronting him and PW5 was hit below the left breast.


PW2 Matsolo Tsosane testified to the effect that on that fateful day and while still at her home she heard a gun report. The time was, according to her, at around 7pm in the evening. After a while PW4 Nkuebe Shasha came into PW2's house running and made a hurried report. She in turn conveyed the report to PW3. Consequent upon the initial report PW2 went out and as she did so she saw four men whom she could not make out. However these men were walking very fast and wearing tiger blankets. At the scene of the incident where the report led her she found her husband clutching his left breast. At a later stage she found he had sustained a wound on the left breast.


PW10 Tefo Monyane was in the company of friends who had gathered at the shack of PW5 for a game of cards with the latter. Whilst there PW10 and others heard a gun report exploding from outside the shack. As PW5 was standing behind the door


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looking outside he heard another gun report. It was, it seems, in response to this gun report that PW5 intimated to PW10 and others that he had been shot. PW10 noticed blood streaming from PW5's left breast. On setting out for the scene immediately afterwards he found the deceased lying on the ground.


PW6 Semethe Mochache's evidence simply supported the story that it was while the company of card players were in the shack of PW5 that they heard a gun report exploding from nearby outside that shack. He likewise afterwards found the deceased lying at the scene inside the road. On later going to PW5's home he found that the latter had sustained a wound on the chest.


The only eye witness to this whole episode is PW13 'Mapitso Tsosane whose evidence was that on the day in question she saw the accused in the company of Pofa Hlasoa and two other men. The quartet, she says, were wearing tiger blankets and gumboots; white in colour.


She testified that when she was later sent to the shop in the afternoon she saw the accused whom she knows very well shooting at the deceased in consequence whereof the latter fell to the ground.


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This witness was vigorously cross-examined by defence counsel Mr Ntlhoki the thrust of whose contention was that the evidence of this witness standing alone on the crucial aspect of the case that, namely; she saw the accused shoot at the deceased is tainted with suspicion of outright bias in that she was the deceased's close relative who also belonged to the infamous "Kopanang Matlao" among whose exploits can be counted the continuous harassment of the accused not only as a commercial rival but definitely a stranger from another village who on that account did not only warrant exclusion but was also perceived as a political rival to the deceased's group and thus deserved persecution by the local villagers.

While it may not be denied that the observations brought forth by Mr Ntlhoki could be relevant in a case such as the present, it appears to me that these contentions tended to overlook the significance of the corroborative aspect of the evidence of PW13 gained from PW3 and PW5 that the accused and the three other men in his company were seen wearing tiger blankets, and white gumboots.


Another important aspect that cannot be overlooked in the overall assessment of the evidence is that these men seemed to be on the war- path and unfriendly mood. One of them uttered the name of PW5 in a manner that showed he was hotly being


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sought after.


But the most important aspect of the circumstance which appears to me that the defence has at least at the initial stage been totally oblivious to and which was sought to be played down only at a later stage when its reality could neither be denied nor run away from was the fact that the entire tenor of the defence case was that the accused's younger brother Leburu could not have been anywhere near the various places he was alleged to have been seen by the crown witnesses on the day in question because he was away on the mines in the Republic of South Africa.


It is important to recall that during cross-examination it was put to PW5 on behalf of the accused that as Leburu and the accused were off-loading the merchandise they were suddenly attacked by a group of people from PW5's shack who fired a shot that sailed towards Leburu and the accused. On that occasion, so it was suggested to the crown witness the accused and his brother dispersed for cover while the mob seized that opportunity apparently to kick at accused' s stock thus scattering it around.


It is thus impossible to make head or tail of the accused's story on this important aspect of events he related because in his evidence-in-chief he made no mention of any


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gun report perceived by him and his younger brother Leburu at the relevant time.


Indeed how could his younger brother be anywhere in his immediate presence when unprompted the accused told this court that Leburu was still at the mines. Yet when confronted with the question how it came about that he and his brother Leburu were, according to the question put on his behalf to crown witnesses, attacked with the result that they ran separately he said the younger brother was on leave at the time therefore not at the mines in RSA but at home in the Tsime area.


It is in this regard that the words of Lord Devlin in Broahurst Vs Rex 1964 AC 441 at 457 deserve to be given a special mention, namely:-


"It is very important that the jury should be carefully directed on the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is not different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused's conduct


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or state of mind, his untruthfulness is a factor which the jury can properly take into

account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness".


There is authority for the view expressed in G Vs Munyai 1986 (4) SA 712 at 716 B-C that:


" The fact that the court looks at the probabilities of a case to determine an accused's version is reasonably possibly true is something which is possible. If on all probabilities the version made by the accused is so improbable that it cannot be supposed to be the truth, them it is inherently false and should be rejected".


In the instant case the question of motive which in other cases causes hardships though not insurmountable ones, by reason of its absence, occasions none because the question of ill blood existing between members of Kopanang Matlao group of which the deceased was a moving spirit and the accused has been well ventilated in this proceeding.


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The warnings that DW2 sounded in her appeals to the Principal Chief and the police appear not to have been sufficiently addressed in the events that led to this case. The chieftainess had made it plain to the authorities that should the accused be forced to react violently it should not be said the chieftainess had not given prior warning.


There was on accused's part a vain attempt to raise at the eleventh hour the defence of alibi. The evidence of PW13, PW3 and PW5 was simply too overwhelming to be rejected on the suggestion contained in the accused attempt to raise the defence of alibi. The accused was identified by his co-villagers who know him well. Moreover a defence such as an alibi may be considerably weakened if it was disclosed too late to give the prosecution an opportunity of investigating it.


In R Vs. Beguidenhout 1954(3) SA 188 at 197 it was stated that "Where the late propounding of a defence, although the onus may remain on the crown, makes it difficult for the crown to produce evidence to counter the accused's version, it may be right to attach substantial and even perhaps, decisive weight to the failure of the accused to call witnesses who are available to him and who could apparently support his story".

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The accused's story is that he is a businessman and carries on business in the Tsime Village, the home of the deceased. Otherwise the accused's home village is Ha Pule where he lives.


The accused said he has three brothers who work in the Republic of South Africa. He postulated that they might well have been at their place of work Gauteng when the deceased met his death. These brothers are Kotsana, Sejabana and Leburu.


He stated that on the day the deceased died he, the accused, had been to collect stock to have it ready for sale at his trading stand in Butha-Buthe. He returned from collecting the stock at between 3pm and 4pm aboard some public transport.


On his arrival at the off-loading spot he found the deceased in the company of Selemo Tsosane, Sekhoali 'Nena, Tefo, Semethe Rangape, Mokoena Sebaka, 'Mapitso Tsosane and many others. This group did nothing untoward except stand there and hurl abuse and insults at the accused.


On alighting the accused asked Mohale-a-boy-to come and assist him to unload the stock. The boy obliged. No sooner had he done this than was he also


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insulted and utterances made at him in the form of a question namely:-


"Mohale are you helping this thief collect stock? Are you also a thief?" These utterances were hurled by the deceased Sekhoali, Semethe and Mokoena. Because the accused was used to being insulted thus he told the court that he chose to remain silent.


The group kept taunting the accused and Mohale even as the two maintained this staunch silence as they went past the group. Tndeed the group even spilled to the ground the merchandise in Mohale's possession.


The accused after reaching his home went to Ha Tlhakanelo at his uncle's place to tell him what uncalled for type of intolerable behaviour the group of "Kopanang, Matlao" had dished out at him. He said he never came back from his uncle's before learning while still there that the deceased had died. This he learnt from his uncle who had had occasion to proceed to the village where death was reported to have occurred. It was thanks to accused's uncle that the accused was advised by him never to go back to his home on the day of his arrival at his uncle's place after reporting about the unsavoury behaviour of the "Kopanang Matlao".


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In my assessment of the evidence led, this explanation preferred by the accused at the stage when he was giving evidence, and never put to crown witnesses to challenge it is denounced by the well-known dictum of Maisels P as he then was, in the case of Phaloane Vs Rex 1982(2) at 246. The authority is itself based on the unassailable wisdom founded on Small Vs Smith 1954 (3) SA expressed at 434 that "It is, in my opinion elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved."


Earlier on I indicated that evidence was to the effect that when shot at PW5 was face to face with Pofa, Leburu and the accused. Had he been shot at by someone firing from behind any of these four I have no doubt that the bullet would have hit anyone of them from behind. Thus the accused's story to place the firing of the gun at some place and time not coincidental with either the shooting of PW5 or the deceased is but a lame contrivance that should be rejected as based on unmitigated fallacy.


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For the above reasons I find the accused's version not only improbable but beyond all reasonable doubt false. I accordingly reject it.


The crown has consequently in my view succeeded in establishing the requisite intent for the crime of murder charged, coupled with the actual killing by the accused.


The accused is accordingly found guilty of murder as charged. He is, as I said earlier, acquitted of the unlawful possession of a firearm charged in count IT.


My assessors agree


CHIEF JUSTICE


EXTENUATING CIRCUMSTANCES


CJ The court has no hesitation in pointing out that sufficient has been gathered from the breadth and length of the case that a lot of ill-will and animosity existed between the accused and the deceased's group. This was exacerbated by the fact that the accused for no fault of his, belonged to a different political party; next; that he ventured from his own village and came to trade in a hostile


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environment. But there is no law forbidding anybody who has got a licence to trade wherever they please or have been licensed to trade.


The next thing was that attempts had been made to try and bring the members of this vigilante group under proper order and restraint through legitimate complaint placed by the accused before his chieftainess. Police also were on more than one occasion involved to try and bring order to that place, but the members of the vigilante group were just bent on persecuting those who did not share their own political believes.

Much as the chieftainess was trying to help the accused she may have unwittingly or perhaps even wittingly-I don't know-but I am inclined to think that she may have unwittingly encouraged the accused to take the law into his own hands by suggesting that should the accused behave irrationally or hit back, it shouldn't be said that "I didn't warn the high authorities."


So in my view there is enough to come to the conclusion that extenuating circumstances are present in this case in the sense that the moral blameworthiness, the stigma attaching to the commission of the crime - I am


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trying to say the moral blameworthiness - is negatived by irresponsible acts of

the vigilante group.


So in the circumstances the court finds that there are extenuating circumstances.


ON MITIGATION


CJ Will the accused please stand up. Well 1 have listened carefully to and agree with everything that your Counsel has stated; namely, that you are a first offender and that you have observed your bail conditions all the time and this case has been dragging on; further that you are married and that you support a daughter who is attending at Thabeng High School.


It is regrettable however that you made a wrong decision, a wrong choice when the state failed you, because if this had been a simple homicide then I would seriously consider suspending the entire sentence, but because intent has been proved as a factor in the commission of this crime then a custodial sentence is inevitable. I am keenly aware of the fact that passions do rise and get inflamed where politics is concerned, and I take judicial notice of the fact that in Lesotho political activity and heated passions have painted a rather dark picture in this


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territory and it is lowly persons or otherwise law-abiding persons like you who in the end carry the can.


I have thought of giving you two years' imprisonment but the mitigation that has been advanced and which is true has prompted me to give you a shockingly light sentence; and I feel the persuasive force of reasoning compelling. The sort of sentence that 1 am going to give you is precipitated by the fact that once you have been found guilty of murder the law doesn't allow a judicial officer trying you to suspend or postpone any part of such sentence.


But again as I intimated to both Counsel appearing before me about the anxiety occasioned me by consideration of the decision in C of A (CRI) NO.l of 1991 MOKETE MOTENA TENA Vs REX (unreported) at page 3 where the Court of Appeal of Lesotho in finding that sixteen years' imprisonment imposed by the trial court on conviction for murder, was excessive decided to suspend portion of the sentence. The honourable Court in doing so seems, with respect, to have had no regard to or been oblivious of provisions set out in Schedule III appearing on the last page of our CP&E Act 7 of 1981 read with section 314 (1) (2) as follows:-


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"SCHEDULE III


Offences on conviction whereof the offender cannot be dealt with under section three hundred and fourteen.


Murder.

Robbery.

Any conspiracy, incitement or attempt to commit any of the above-mentioned

offences".


S.314 (1)


"Whenever a person is convicted before the High Court..............of any offence other than an offence specified in Schedule III, the court may postpone.............. the passing of sentence................


(2) Whenever a person is convicted before the High Court................of any offence other than an offence specified in Schedule III, the court may pass sentence, but order that the operation of the whole or part thereof be suspended......................."


Since the reading of the above provisions makes it clear to me that once


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conviction in reference is of murder no suspension of sentence is permissible I am

accordingly dissuaded from going the Court of Appeal route in Motenatena above.


Needless to say the Court of Appeal suspended six years of the period imposed by the trial court.


So Moliboea Hlasoa the sentence of this court is that you shall remain in detention until the court rises. That means you have a criminal record for murder but are free to go home.


Court adjourns


CHIEF JUSTICE


30 September, 2003


For Crown : Ms Mofilikoane

For Defence : Mr Ntlhoki