R v Shainotsi and Another (CRI/T/74/99)

Case No: 
CRI/T/74/99
Media Neutral Citation: 
[2003] LSHC 70
Judgment Date: 
25 June, 2003

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CRI/T/74/99

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

vs

1. SHAINOTSI

2. MORUTI MAKHETHA


JUDGMENT


Delivered by the Honourable Mr. Justice B.K. Molai on 25th day of June, 2003


The accused persons appear before me charged with two counts of murder and house breaking with intent to steal and theft, on the following allegations:


Count 1 "In that upon or about the 2nd day of November, 1996 and at or near Mpharane in the district of Leribe, the said accused each or the other or both of them, did unlawfully and intentionally kill Tseliso Matsoso."


Count II: "In that upon or about the 2nd day of November, 1996 and at or near Mpharane in the district of Leribe, the said accused did, each or the other or both of them, unlawfully and intentionally and with intent to steal, break and enter the shop there situate of Clement Tlisang Mahaheng and did unlawfully steal the


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property listed in the charge sheet"


The charges were read and explained to the accused persons who pleaded not guilty. Mr. Makotoko and Mr. Mpaka, who represent Accused 1 and accused 2, respectively, in this trial, told the court that the plea of not guilty tendered by the accused persons were in accordance with their Instructions. The plea of not guilty was, therefore, entered in respect of the accused persons in Count I. and Count II.


At the commencement of the trial, both Mr. Makotoko and Mr.Mpaka for A1 and A2, respectively, informed the court that the defence admitted the depositions of Michael Au, Clement Mahaheng, Mohlophehi Makhetha, Likhetho Makhetha and Bafokeng Majoro who had testified as P.W.1, P.W.3, P.W.4, P.W.5and P.W.7 at the proceedings of the Preparatory Examination. Miss Nku for the Crown told the court that the crown accepted the admission made by the defence in respect of only the deposition of Michael Au. It did not, however, accept the admissions made in respect of the depositions of Clement Mahaheng, Mohlophehi Makhetha, Likhetho Makhetha and Bafokeng Majoro. The deposition of Michael Au was accordingly accepted in evidence it was, therefore, not necessary to call him to testify in this trial. It may by mentioned that although the admission made by the defence counsel in respect of the deposition of Mohlophehi Makhetha was not


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accepted, the crown did not call him to testify as a witness in this trial. It was common cause that D/Tpr Kharafu, who had testified as P.W.9 at the proceedings of the preparatory examination, had since passed away. His deposition was, by consent of all the parties, admitted in evidence in terms of the provisions of section 227 (1) of the Criminal Procedure and evidence Act.


Six (6) witnesses were called to testify in support of the crown case. One (!) witness was called to testify on behalf of Al who himself did not give evidence in his defence. No witnesses were called to testify on behalf of A2 but he himself went into the witness-box and gave evidence in his defence.


The evidence heard by the court was that of P.W.6, D/Tpr Chonela, who testified that he lived in the village of ha Maqele in the district of Leribe. Ho was a member of the Lesotho Mounted Police Service until 1998 when he retired from the service. In 1996 he was based at Maputsoe police station. Early in the morning of Sunday, 3rd November 1996 he reported for work at his duty station where he received a certain information. Following that information, he proceeded to a village of Mpharane. He was in the company of two (2) other police officers and they were travelling in a police vehicle.


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On arrival at Mpharane, P.W.6 and his colleagues noticed a large number of people gathered at a culvert. They went to those people and found that there was a dead body of a person at the culvert. According to P.W.6, the dead body was identified to him as being that of Tseliso Matsoso, the deceased jn this case. He (P.W.6) proceeded to examine the deceased's dead body for injuries. In the findings of P.W.6, the dead body had an open wound on the left temporal region, an open wound on the back of the head. The head, the face and the whole body, as well as the clothes, were full of blood. After he had examined the deceased for injuries, P.W.6 and his colleagues conveyed him to the mortuary at Hlotse government hospital, in their police vehicle. The deceased did not sustain additional injuries whilst he was being transported from Mpharane to the mortuary. I shall return to the evidence of P.W.6 later in the judgment.


It is common cause that, after the dead body of the deceased had been conveyed to the mortuary of Hlotse government hospital, an autopsy was performed over it by a medical doctor who compiled a report. The report was by agreement of the parties handed in, from the bar, as exh. "A".


According to exh."A", at 15:45 hours on 13th November 1996 and at Motebang hospital (Hlotse hospital), a medical doctor examined a dead body


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of a male african adult The dead body was identified to the medical doctor by Michael Au Tumane Matsoso as being that of Tseliso Matsoso.


As it has been stated, earlier in the judgment the deposition of Michael Au was admitted by the defence. The crown accepted the admission made by the defence In his deposition Michael Au confirmed that he did identify the dead body of the deceased before the medical doctor who performed the post­mortem examination. The deceased was his relative and he had, therefore, no difficulty in Identifying his dead body before the medical doctor.


According to exh."A", the external examination revealed that the deceased had sustained multiple deep lacerations on the left temporal skull, left side of the neck, left shoulder and elbow. On opening the body the examination revealed that there was a fracture of the left elbow, a fracture of the left temporal skull and haematoma. From these injuries the medical doctor formed the opinion that death was due to extensive loss of blood resulting from the head injuries.


I can think of no good reasons why the opinion of the medical doctor that the deceased died of extensive loss of blood resulting from the injuries that had been inflicted on his head should be doubted. The salient question


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that arises for the determination of the court is whether or not the accused are the persons who inflicted the injuries on the deceased and, therefore, brought about his death. In this regard, the court heard the evidence of Clement Tlisang Mahaheng who testified as P.W.1 and told the court that he lived in the village of Mpharane, in the district of Leribe. He knew the two accused persons who also lived in the same village as he did. According to him, P.W.1 owned a cafe in his home village. The deceased was employed as a night watchman at the cafe.


The cafe building consisted of three rooms. One room was used as a storeroom. The second room was used by the deceased as his living room. The third room was used as the cafe/shop. There was a door leading from outside into the room used as the cafe or shop. From inside the cafe there was another door leading into the room used by the nightwatchman (deceased) as a living room. From the room of the night watchman there was another door leading into the storeroom. From the night watchman room there was a third door loading outside. The doors leading from outside into the room used as the cafe and the room used as the living room for the night watchman had burglars proof doors.


P.W.1 testified that at about 7:30p.m. on Saturday, 3rd November 1996,


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he closed business at his cafe. He properly closed all the windows and locked the doors of the rooms used as the cafe and the storeroom. As usual P.W.1 took the keys with him and went home, leaving only the deceased at the cafe. Early in the morning of the following day 4th November 1996, P.W.1 received a report as a result of which he sent for the headman whilst he himself immediately proceeded to his cafe. It will become clear in the judgement that the date on which P.W.1 properly closed his cafe was 2nd and not 3rd November 1996.


On arrival at the cafe building, P.W.1 observed that all the windows of the rooms used as the cafe and the storeroom were still intact. The door of the entrance leading from outside into the cafe, together with to burglar proof, were also still in tact. However, the burglar proof door of the entrance leading from outside into the room used by the night watchman (deceased) had been forced open. The burglar proof door had been bent or curved from the top downwards and there were some scratches on the iron door frame thus suggesting that an instrument such as a crowbar had been used to force open the burglars proof door.


According to him, P.W.1 first entered into the room which was used by the night watchman (deceased). From there he noticed that the doors leading


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into the cafe room and the storeroom had been forced open. He then entered into the cafe room where he noticed that a lot of his stock had been removed from the shelves and the refrigerator. There were blood stains on the floor, the walls and refrigerator.


From the room used as the cafe, P.W.1 went into the one in which the deceased lived He again noticed blood stains on the floor, walls and grades of beer which were scattered about. He then moved into the storeroom where he found that a lot of stock had been removed, there were bloodstains on the floor and the walls . From the storeroom P.W.1 returned into the room used by the deceased and then outside the building. The deceased, was nowhere to be seen. The stick and the sable which the deceased was using to guard at the cafe were also nowhere to be seen.


From the cafe building, P.W.1 proceeded to a culvert approximately 100 paces (and) away from the cafe. He went there in the company of the local headman and many other villagers. At the culvert, P.W.1 found many people already gathered there. He noticed the deceased who was in a sitting position and leaning against the culvert. He observed that the deceased had a multiple wounds on the head and was already dead.


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P.W.l confirmed that eventually the police came to the scene. When they undressed and examined him for injuries P.W.1 observed that besides the head injuries the deceased also had multiple weals all over the body. Having examined him for injuries, the police transported the deceased away in their police vehicle. He did not accompany the dead body of the deceased when it was being transported away by the police.


P.W.1 told the court that, later on, he was at the cafe when the police and Al arrived in a police vehicle which was loaded with a lot of property. He, however, no longer remembered the exact date. He identified the property as some of his property which was found missing after the cafe had been broken into.


It is to be recalled that although in his evidence P.W.1 said the police were in the company of Al when they arrived at his cafe with the property listed in exh. "B", P.W.6 denied it. According to P.W.6, when the property was found at Likhetlane river Habi Majoro, and not Al, was accompanying the police officers. The property was loaded on the police vehicle and transported straight to Maputsoe police station where P.W.1 later identified it as some of his missing property. The property was not transported via the cafe of P.W.1 as he (P.W.1) wished the court to believe. To that extent there was, therefore,


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a discrepancy in the evidence of P.W.6 and P.W.1.


Be that as it may, P.W.1 confirmed that, at a later stage, he did go to Maputsoe police station where some of the property which had been found missing at his cafe, after it (cafe) had been broken into, was released to him by the police. According to him, P.W.1 took all that property to his home at Mpharane. He later took and dumped the property at a place called Mokotakoti, next to the village of ha Maqele. The reason therefor was because the property had been damaged.


It is, perhaps, important to mention, at this juncture, that some of the property listed in exh. "B" were admittedly perishables from the refrigerator in the cafe e.g meat staff. Other property listed in exh. "B" were, however, not perishables e.g boxes of cigarettes. I find it incredible that P.W.1 could have dumped away all the property including the non-perishables that had been kept in the storeroom and the shelves of his cafe. P.W.1 was, in all probabilities, exaggerating in his evidence that he had dumped away all the property that the police, at Maputsoe police station, had released to him, presumably for safe keeping.


In any event, P.W.1 went on to tell the court that, after it had been


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broken into, he used the cafe just to sell the remaining stock, thereafter, he closed down the business and had since not been running a cafe business. P.W.1 further told the court that he had not allowed the accused or, for that matter any other person to break into his cafe and take away his property. Whoever did so, therefore, did so unlawfully.


P.W.2, Molahlehi Sehlabaka, testified that he lived at Mpharane in the district of Leribe. He was the headman of Mpaharane. He knew Al and A2 who both lived in the same village as he did. He also knew the deceased in his life time. The deceased was employed as a night watchman at a cafe of P.W.1.


In his testimony, P.W.2 told the court that at about 7:30 a.m on 3rd November 1996 he received a report (presumably from P.W.1) following which he proceeded to the cafe of P.W.1, in the village of Mpharane. From the cafe he was directed to a culvert where he found a dead body of a person. He identified that person as the deceased. He immediately detailed a messenger to fetch the police from Maputsoe police station. Eventually the police did arrive and examine the deceased for injuries. Whilst the police were examining him for injuries, P.W.2 noticed that the deceased had sustained multiple injuries on the head and all over the body. Having examined it for


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injuries the police conveyed away the dead body of the deceased in their

police vehicle. He himself returned to his home in the village and did not accompany the deceased's dead body when it was taken away by the police.


According to him, P.W.2 later learned that the police were at P.W.l's cafe. He proceeded to the cafe where he did find the police and many other villagers. In his presence the police did inspect the premises of P.W.l's cafe building. He confirmed the evidence of P.W.1 that the burglar proof door of the entrance leading from outside into the room used by the night watchman (deceased) had been forced open. It was through that entrance that he entered into the night watchman room and joined the police officers who were already carrying out the inspection. He too observed blood stains on the floor and walls of the night watchman room. From that room P.W.2 and the police officers moved into the room used as the cafe. Again, P.W.2 observed that there were blood stains on the floor, counter and refrigerator. The shelves were virtually empty as a lot of stock appeared to have been removed therefrom. From the room used as a cafe P.W.2 and the police officers moved into a third room, presumable the storeroom, where he (P.W.2) again noticed blood stains on the floor and walls. After they had inspected P.W.l's cafe building the police left the places. P.W.2 also parted company with them and returned to his home, in the village.


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P.W.2 further testified that, later on, the police officers came to him at his home. They were then in the company of one Habi Majoro who was apparently under arrest. According to him, (P.W.2), he himself, Habi Majoro, the police officers and P.W.1 proceeded to a popular tree plantation at a stream where they found a lot of property hidden in a donga. The property consisted of drinks, tins of beef, etc. They loaded the property on to the police vehicle which returned to Maputsoe police station. When the police returned to Maputsoe police station with the property, P.W.2 parted company with them and returned to his home, in the village of Mpharane. Before parting with the police officers, P.W.2 heard them telling P.W.1 to follow them to Maputsoe police station.


It is to be observed that although P.W.2 testified that P.W.1 was present when he (P.W.2), Habi Majoro and the police officers proceeded to the stream where the property was found hidden in a donga, P.W.1 himself gave evidence before this court and never said he went with P.W.2, Habi Majoro and the police officers to the stream where the property was found hidden. There is no doubt, in my mind, that P.W.2 was mistaken in his evidence that P.W. 1 was present when his property was found hidden at the stream.


He that as it may, P.W.2 told the court that the police officers later came


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to him at Mpharane looking for the accused persons. He first took the police officers to where Al stayed in the village. They found Al in and arrested him. He then took the police to where A2 stayed in the village. A2 could not be found at his place or any where in the village. The police were, therefore, unable to arrest him, on that day.

P.W.3 Bafokeng Majoro, testified that he lived at Mpharane in the district of Leribe. He knew the two accused persons who lived in the same village as he did. He also knew the deceased in his life time.


In his testimony, P.W.3 further told the court that in 1996 he and a certain Lebohang were working at a "fato-fato". On Saturday, 2nd November 1996, they had received their pay. In the evening of that day they went to drink beer at one Matsepiso's home, in the village of Mpharane, where there was a stockvel.


At the table where he and Lebohang were drinking, they were in the company of one Bereng. P.W.3 himself bought a total of 4 bottles of beer on that evening. He was quite drunk when, at about between 9:30p.m. and 10:00p.m, P.W.3 noticed Al and A2 arriving at the stockvel. On their arrival at the stockvel A2 was already drunk for he was noisy and reciting poems, a


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thing which he usually did when under the influence of intoxication. Indeed, he was even holding a bottle of beer in one of his hands. About approximately 10 minutes after Al and A2 had arrived at the home of Matsepiso, P.W.3 and Lebohang left the place for their home.


According to P.W.3 there were two paths leading from the home of Matsepiso to their home. One was on the upper side whilst the other was on the lower side. As P.W.3 and Lebohang went through the gate of Matsepiso's premises the former noticed Al and A2 also leaving the place. After they had passed them. Al and A2 followed the path on the lower side whilst P.W.3 and Lebohang followed the one on the upper side. As P.W.3 and Lebohang were walking towards their home, there was a time when the former stopped to pass water whilst the latter continued alone on his way towards their home.


It was whilst he was passing water that, P.W.3 noticed the two accused, who were walking ahead, leaving the path they had been following and going to join the one Lebohang was following. When they came to Lebohang the two accused attacked and assaulted him. According to him, P.W.3 had no difficulty in seeing what the two accused were doing to Lebohang because the moon was shining brightly, on that night. When he noticed the two accused assaulting Lebohang, P.W.3 turned back and ran away. He ran to the home of one Phoka Pholo, a neighbour of Lebohang's grandmother. Whilst he was


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telling Phoka Pholo what had happened to Lebohang, P.W.3 heard people talking as they passed outside the house of Phoka Pholo. He peeped out through the window and noticed two people passing outside the house. One of them was shouting "Ha ho na poho e ka bang ea tsamaea mona boshing bona. Ho tsamaea rona bo-morena Phau feela." (Loosely translated: Nobody will walk about this night except we bo-morena Phau). P.W.3 identified that person, by his voice, as being A2.


When he heard A2 uttering those words, Phoka Pholo (Now deceased) advised P.W.3 not to go out of the house. In accordance with the advice given by Phoka Pholo, P.W.3 did not go out and spent the night at the home of Phoka Pholo. In the morning of the following day, 3rd November 1996, P.W.3 and Phoka Pholo went to see Lebohang at the home of his grandmother. They found him in. He had sustained injuries on the head which was swollen. In his explanation, Lebohang told P.W.3 and Phoka Pholo that he had been assaulted and injured by Al and A2 who even took his radio and some clothes. He did not know the reason why the two accused persons had assaulted and dispossessed him of his property.


In his evidence, P.W.3 further told the court that he had been requested by the parents of A2 to look after him during the time he (A2) was at the


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circumcision school. He had since been regarding A2 as his responsibility.


It was for that reason that, from the home of Lebohang, P.W.3 went to the home of A2 to find out why he (A2) and Al had, on the previous night assaulted Lebohang. On arrival at his (A2's) home, P.W.3 found him not in. He found only his elder brother by the name of Mohlophehi, who said he had last seen A2 on the previous day. He did not, therefore, know A2's whereabouts


Thereafter, P.W.3 left A2's home to look for him in the village. Whilst he was looking for him in the village, P.W.3 met one Tutu Makhetha, a relative of A2. After P.W.3 had explained to him why he was looking for A2, Tutu Makhetha joined him in the search for A2. Eventually the two did meet A2,in the village. When they seriously questioned him as to why he and Al had assaulted Lebohang, on the previous night, A2 said they were drunk and wanted to rob him of the money he had earned for working at the "Fato-Fato". In his explanation, A2 told P.W.3 and Tutu Makhetha that Al had, on the previous day, informed him that Lebohang, P.W.3 and others who worked at the "Fato-Fato" had received their pay. They (A2 and Al) then decided to find and rob Lebohang and P.W.3 of the money they had earned for working at the "Fato-Fato".


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P.W.3 further told the court that, whilst he and Tutu Makhetha were talking to A2, he heard an alarm raised to the effect that a person was found killed at the area of the shops, in the village. As a result of that alarm, P.W.3 and Tutu Makhetha asked A2 whether he and Al were not the ones who had killed the person allegedly found killed at the area of the shops. Initially A2 denied that he and Al were responsible for the death of the person allegedly found killed at the area of the shops. However, he later somersaulted and admitted that he and Al were the ones who had assaulted a person called Tseliso at P.W.l's cafe but they were so drunk that they did not know what they were doing. According to A2, he used the sable whilst Al used the stick to assault Tseliso. Thereafter, they carried and placed him (Tseliso) at a culvert next to the cafe of one Nthako. Tseliso was then still alive and they did not realise that he would eventually die.

P.W.3 told the court that after A2 had given him and Tutu Makhetha, they took him to the place where it was alleged that a person had been found killed. That was at a culvert next to the cafe of one Nthako. On arrival at the culvert, they found many villagers already gathered around a dead person whom P.W.3 identified as Tseliso, the deceased in Count I. The police and P.W.2 had not yet arrived at the scene.


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According to P.W.3, when he and Tutu Makhetha arrived with A2 at the culvert he reported to some of the people who had gathered there what A2 had told him and Tutu Makhetha. He remembered that one of the people he reported to,was Nthako, the owner of the cafe next to the culvert where the deceased was found dead. Thereafter, P,W.3 and Tutu Makhetha returned into the village to assist Lebohang. They left A2 in the care of Nthako and the other villagers who were waiting for the police to arrive.

later on the same day, 3rd November 1996, P.W.3 and Tutu Makhetha returned to the culvert where they found that the corpse of the deceased had already been removed. They then went to the home of Nthako who informed them that after they had left the culvert, A2 escaped and ran away. P.W.3 then returned to his home in the village.


According to P.W.3, Tpr Kharafu and P.W.6 later came to him looking for the home of P.W.5 who had already been arrested but was not with the two police officers at the time. In his evidence P.W.3 told the court that P.W.5 was the son of his paternal uncle and, therefore, his relative. He confirmed that he did go with the two police officers to P.W.5's home, opened the house and assisted the police to search for the stick (exh."1") therein. In the course of the search, P.W.3 found exh. "1" behind a side-board and handed it to the police


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officers who took possession thereof and then left.


Now, returning to his evidence, P.W.6 told the court that, after he and the other police officers had transported the deceased from Mpharane to the mortuary at Hlotse government hospital, they returned to Maputsoe police station where they found other urgent reports. Instead of returning to Mpharane they had to attend to those urgent reports. It was only on the following day, 4th November 1996, that P.W.6 returned to Mpharane. He was then in the company of Tpr. Kharafu, who has since passed away, and one Clement Mahaheng who had come to the police station early in the morning of that day, 4th November 1996.


On arrival at Mpharane, P.W.6 and his companions went straight to the cafe of Clement Mahaheng. He found that the cafe building had been broken into and there were blood stains on the floor, the counter and the walls of the cafe. Some of the shelves in the cafe were empty indicating that items had recently been removed therefrom. The door leading from the cafe room into the adjacent room was left open. On entering into that adjacent room P.W.6 noticed that grades of beer and other articles were scattered all over, there was a pool of blood on the floor, there were also blood stains on the walls, grades


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of beer and other articles indicating that there had been a scuffle in the room. The door lending outside from the adjacent room and its burglar proof had been forced open P.W.6 noticed a trail of blood stains leading from the adjacent room towards the culvert where he had, on the previous day, found the dead body of the deceased.


From the cafe of Clement Mahaheng P.W.6 and Tpr Kharafu proceeded to the chief's place in the village of Mpharane. However, on the way they met one Habi Majoro who gave them information about the death of Tseliso Matsoso and the theft at the cafe of Clement Mahaheng. The two police officer,s then continued on their way to the chief's place, together with Habi Majoro. They reported to the chief the information that Habi Majoro had given to them. Thereafter, the police officers and the chief were taken by Habi Majoro,to a certain spot at Likhetlane river where they found a lot of grocery under the trees and bushes. Some of the grocery was contained in bags whilst others were contained in plastics. According to him, P.W.6 prepared the list of all the property found at Likhetlane river, loaded it on their police vehicle and returned to Mpharane village where they parted with the chief. The list has since been in the possession of the police. P.W.6, Tpr Kharafu and Habi Majoro then proceeded to Maputsoe police station together with the property.


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According to him, P.W.6 later called Clement Mahaheng to Maputsoe police station where he (Mahaheng) was shown the property, which had been found at Likhetlane river, and the list thereof prepared by P.W.6.Mahaheng identified the property as part of the property he had found missing at his cafe after it had been broken into. He, however, pointed out that the list prepared by P.W.6 did not include all the property he had found missing from the cafe. By agreement of all the parties, P.W.6 was allowed to hand in the list as exhibit "B" despite the fact that he was no longer a member of the police service and, therefore, not the last person to have possession thereof.


In the evidence of P.W.6, when he and Tpr. Kharafu took him to Maputsoe police station together with the property listed in exh. "B", Habi Majoro was not under arrest. He was merely assisting the police in their investigation of this case.


Following the information given to them by Habi Majoro, at Maputsoe police station, P.W.6 and Tpr. Kharafu returned to Mpharane on the same day, 4th November 1996, to look for the weapons that had allegedly been used in the commission of the offence in Count 1. Habi Majoro himself remained at Maputsoe police station. On arrival at Mpharane village, P.W.6 and Tpr Kharafu met the chief and, inter alia told him that on the information they


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had received from Habi Majoro the stick which had allegedly been used in the commission of the offence in Count I could be found, through one Bafokeng Majoro, at his (Habi's) home. The chief then took the two police officers to the home of Bafokeng Majoro. They found Bafokeng in and told him the information from Habi. Bafokeng Majoro did take the two police officers and the chief to Habi's home, open the house and looked for the stick therein, in the presence of P.W.6, Tpr Kharafu and the chief. Eventually Bafokeng Majoro found the stick behind a sideboard. It was a brown timber stick wrapped with green and yellow wires. The stick also had blood stains on it. He (Bafokeng) handed the stick to P.W.6 who took possession thereof. it had since been in the custody of the police. Again although P.W.6 had retired from the police service and was, therefore, no longer a member thereof, it was agreed by all the parties that he could hand the stick in as exhibit in this trial. The stick was accordingly handed in, from the bar, as exh. "1" and part of P.W.6' evidence. P.W.6 told the court that after he had handed exh. "1" to him, Bafokeng Majoro returned to his home.


After Bafokeng had parted company with them, P.W.6 asked the chief to take him Tpr. Kharafu to the home of one Likhetho who, according to the information received from Habi, might know the whereabout of a sable, another weapon also allegedly used in the commission of the offence in count


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I. The chief did lake them to the home of Likhetho. They found Likhetho in at his home. According to P.W.6, when he was asked the whereabouts of the sable, Likhetho replied that he had taken it and a radio to one Mohlophehi for safe keeping, after A2 had left them with him. He said the reason he did so was because he himself was going to tutor at a circumcision school and thought the articles could be safely kept by Mohlophehi who was a brother of A2. Thereafter Likhetho took P.W.6, Tpr Kharafu and the chief to Mohlophehi's home which was also the home of A2 who, however, usually slept at the home of Habi. They found Mohlophehi in. In the presence of P.W.6 and his party, Likhetho told Mohlophehi that the police officers wanted the sable and the radio he (Likhetho) had handed to him. Mohlophehi then handed over the radio and the sable which had blood stains. They were contained in a leather bag. P.W.6 and Tpr. Kharafu took possession of the radio and the sable. They had since been in the custody of the police. The sable was later handed in as exhibit by Tpr. Kharafu at the proceedings of the preparatory examination. The radio was never handed in as exhibit because it was eventually found that it was involved in a different case and not the present one. It is significant to observe that Mohlophehi was not called to testify as a witness, in this trial. What he is alleged to have said in this case remains, inadmissible hearsay evidence and, therefore, of no assistance to the court.


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Whilst they were at Mpharane, on 4th November 1996, P.W.6 and Tpr. Kharafu got Information that Al and A2 were nowhere to be found in the village. The police officers did not, therefore, go to look for the accused persons at their respective homes. Instead they returned to their duty station at Maputsoe police station.


However, on the following day, 5th November 1996, the two police officers returned to Mpharane where they met the chief. Accompanied by the chief they went to the home of Al and found him in. P.W.6 introduced himself and Tpr. Kharafu to the accused. He told the accused that they were Investigating this case and regarded him as one of the suspects. He warned the accused that he was not obliged to say anything, should he choose to say anything that would be reduced to writing and could be used as evidence against him, at a later stage. Despite the warning, Al chose to give an explanation which P.W.6 considered to amount to a confession. P.W.6 asked Al whether he would be prepared to repeat the explanation before a magistrate and he (Al) replied in the affirmative. Al was then arrested and charged as aforesaid.. He was escorted to Maputsoe police station where he was confronted with the stick, exh. "1". According to P.W.6, Al conceded that exh. "1" was the stick he had used on the deceased, in count I. Thereafter, P.W.6 took Al in Leribe Magistrate court so that he could make his confession


26


before a Magistrate.


It is, perhaps, worth noting that the confession which Al had allegedly made before the Magistrate was, at the proceedings of the preparatory examination, handed in as exhibit and part of the evidence. It was, however, not handed in as exhibit and part of the evidence in this trial.


P.W.6 told the court that, from the office of the Magistrate, Al was taken into the court-room of the Leribe subordinate court. He was remanded into custody by another Magistrate. Thereafter, P.W.6 and Tpr. Kharafu continued looking for A2 who was eventually traced to a place called ha Rakobeli. He was cautioned, given a charge and arrested. From ha Rakobeli, the police officers escorted A2 to Maputsoe police station where he was confronted with the stick (exh. "1") and the sable. He (A2) admitted to have assaulted the deceased in Count I with the stick but not the sable.


As stated, earlier in the judgment, it was common cause that Tpr. Kharafu had since passed away and was, therefore, not available to testify as a witness in this trial. His deposition at the proceedings of the Preparatory Examination was, by consent of all the parties, admitted in evidence in terms of the provisions of section 227 (1) of the Criminal Procedure and Evidence Act


27


1981 The evidence of Tpr. Kharafu was to the effect that he was one of the investigators in this case. He confirmed P.W.6's evidence that on 5th November 1996 they went to the home of Al at Mpharane. They found Al in, introduced themselves to him as police officers and warned him in terms of the judges rule. Al gave them an explanation. Thereafter they proceeded to the home of Likhetho Makhetha. They found him in. From the home of Likhetho Makhetha they proceeded to the home of one Mohlophehi. They found him in. Tpr Kharafu further confirmed the evidence of P.W.6 that Mohlophehi, inter alia, gave them a sable which had blood stains on its blade. After Al had admitted that it was the one he had used to assault the deceased in Count 1 Tpr. Kharafu took possession of the sable. It had since been in the custody of the police. He (Tpr. Kharafu) subsequently handed it in as exh. "2" and part of his evidence at the proceedings of the Preparatory Examination.


P.W.5,Habi Majoro, testified that he lived in the village of Mpharane, in the district of Leribe. He knew the two accused persons before court. They also lived in the same village as he did. Al was, in fact, his next door neighbour whilst A2 was his former school mate. He also knew the deceased in his life time.


Miss Nkn, the crown counsel, told the court that P.W.5 was an


28

accomplice witness and should be declared as such. He was accordingly warned and declared an accomplice witness. The court will, therefore, approach the evidence of P.W.5 with caution for as Schreiner, J.A. put it in the leading case of R v. Nconana 1948 (4) SA 399 at p. 405:


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


In his testimony, P.W.5 told the court that A2 and one Mpube Senoko normally slept at his (P.W.5's) parental home. The three of them slept in the same hut. However, at about 7:00p.m. on the night preceding the morning of the day on which the deceased was found dead at the culvert, he and Mpube Senoko went to bed. A2 was not there. At about 8:00p.m. he (P.W.5) heard a knock at the door of the hut in which they were sleeping. According to him, P.W.5 put on the light and opened the door. A2 and Al then entered into the hut. He observed that Al was carrying a stick whilst A2 was carrying a radio cassette, some clothes viz. trousers and shirts which had blood stains on them. When he asked them where they came from, Al and A2 told him that they came from a stockvel. He then asked them about the property they were carrying. A2 replied that he and Al had assaulted one Lebohang at the


29


stockvel that property, from him. Shortly thereafter. Al and A2 left the hut in which P.W.5 and Mpube Senoko had been sleeping. They were still carrying the property they had allegedly taken from Lebohang.


After A1 and A2 had gone out of his hut, P.W.5 also went outside and stood on the forecourt. The moon was shining brightly. He could see Al and A2 walking to some aloes, about 100 paces (ind.) away from his hut. They left the trousers and the shirts carried by A2, at the aloes. They then went away, still carrying the stick and the radio. Thereafter P.W.5 returned into his hut and got into bed.


Late on that same night,P.W.5 heard another knock at the door of his hut and a person saying "ko-ko". He again got out of bed, put on the light and opened the door. Al and A2 then entered into the hut. P.W.5 noticed that besides the stick he had been carrying, Al was then carrying a bag containing grocery was, in addition to the radio, also carrying a bag of grocery and a sable. When P.W.5 asked the two accused from where they got the grocery they were carrying A2 replied that they had taken it from P.W.l's cafe. According to him, P.W.5 knew that there was a night watchman at P.W.1's cafe. He therefore, asked the two accused where the night watchman was when they took the grocery from the cafe. It was, then Al who replied that they had


30


assaulted that night watchman who, as a result, ran away. When the two accused told him that they intended to hide the grocery at his place, P.W.5 refused. A2 then told P.W.5 that there was other grocery outside the house, and requested him (P.W.5) to assist him and Al to carry all the grocery to a place where it would be hidden. When he was promised a share, in return for his assistance, P.W.5 agreed to give the assistance. The two accused and P.W.5 then wont outside the hut where he (P.W.5) noticed that there were two more bags of grocery. He told the accused persons that he could carry only one of the two bags. There upon A2 returned into the hut from where he came out with Mpube Senoko. In the presence of Al and P.W.5, A2 asked Mpube Senoko to help by carrying one of the two bags, outside the hut, to a place where the grocery would be hidden. He also promised Mpube Senoko that he would be rewarded for rendering the assistance. Mpube Senoko did agree to assist.


Thereafter, Al, A2, P.W.5 and Mpube Senoko carried the four bags of grocery to a place called Linooeng, outside the village of Mpharane, where the grocery was hidden. After hiding the grocery at Linooeng, P.W.5 and his party returned to his (P.W.5's) hut, in the village of Mpharane. A2 took the sable and the radio saying he was going to leave them at the home of one Likhetho Makhetha. Al left the stick, he had been carrying, in P.W.5's hut. They (A2


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and A1 went out of P.W.5's hut. However, A2 later returned to P.W.5's hut where he spent the night as usual.


Early in the morning, before sun rise, A2 woke up saying he was driving cattle to the veld for grazing. Later in the morning of the same day, P.W.5 woke up and went to buy paraffin at one of the cafes, in the village. When he went out of the cafe, P.W.5 noticed a crowd of people gathered at a culvert, some distance away from the cafe. He went there to investigate what was happening, On arrival at the culvert, P.W.5 noticed a dead person whom he identified as the deceased in this case. Thereafter he returned to his hut, in his village.


On the way to his hut, P.W.5 met Al and told him that the person he (Al) and A 2 said they had assaulted, on the previous night, was dead at the culvert. He (P.W.5) advised Al to go and surrender himself to the police. However Al said he would first go to the culvert and see for himself what had happend there .According to him, P.W.5 then parted with Al and continued on the way to his hut, in the village.


At his hut, P.W.5 washed himself and then decided to go to Maputsoe police station and report what he and the two accused person had done, on


32


the previous night. Whilst he and another person were waiting at Mpharane but stop, P.W.6 and another police officer by the name of Tpr Kharafu came to them and asked who of them was Habi. In reply, P.W.5 told them he was the one. The two police officers then asked him his knowledge about the theft that had taken place at P.W.l's cafe. He replied in the affirmative and told them what he had already told the court. P.W.5 further told the court that whilst the two police officers were with him at the bus stop, their vehicle was waiting in front of P.W.l's cafe. It was loaded with the grocery which he and the two accused had hidden at Linooeng, on the previous night. The grocery was not contained in the bags.


P.W.5 assured the court that he was not the one who had taken the police to Linooeng and pointed out the spot where the grocery had been hidden. What he had pointed out to the police and P.W.2 was the spot next to the aloes where he had seen Al and A2 hiding the clothes. He had also told the police that the stick which Al had left at his (P.W.5's) hut could be found there (at his hut).


In his evidence, P.W.5 told the court that after he had spoken to the two police officers, at the bus stop, he went with them to the home of Al. They found Al in and the police officers arrested him. From Al's home P.W.5 went


33


to the home of one Likhetho Makhetha with the police officers who were looking for the sable and the radio which A2 had said he was taking to him (Likhetho Makhetha). They did find Likhetho Makhetha who, however, told the police officers that A2 had said he should take the sable and the radio to his ( A3's)home, in the morning. They (sable and radio) were, therefore, at the home of A2. P.W.5, the police officers, and Likhetho Makhetha then proceeded to a2's home where they found his (A2's) elder brother by the name of (Mohlophehi Makhetha. According to P.W.5, Mohlophehi Makhetha handed the sable and the radio to the police officers.


Thereafter P.W.5, Al, Likhetho Makhetha and Mohlophehi Makhetha were taken by the police officers to Maputsoe police station where P.W.5, Likhetho Makhetha and Mohlophehi Makhetha gave statements. After giving statements, P.W.5 and Mohlophehi Makhetha were taken back to their home, at Mpharane, by the police officers.


Likhetho Makhetha testified as P.W.4 and told the court that he was illiterate. He lived at Mpharane in the district of Leribe. He knew Al and A2. He was related to A2 who was the son of his elder brother. Al was just his co-villager it Mpharane.


34


In his testimony, P.W.4 told the court that one night he was sleeping at his house when A2 arrived carrying a bag which he said contained a radio and a sable. In the explanation of A2, he and Al had fought with some people at a stockvel. In the course of that fight, they took the radio and the sable from those people.


P.W.4 further told the court that shortly after he had come to his house A2 went away leaving behind the bag which he had said contained the radio and the sable. When he woke up in the morning, P.W.4 opened the bag which A2 had left at his house. He found that the bag did, indeed, contain a radio and a sable (exh. "2"). As he was going to a place called Molumong, on that day, P.W.4 took the bag and its contents to the parental home of A2 in the village. He did not find A2 at his parental home. He, however, found his elder brother, one Mohlophehi Makhetha. He explained to Mohlophehi Makhetha how A2 had left the bag and its contents at his (P.W.4's) house on the previous night and left it (bag) with him.


After he had handed the bag and its contents to Mohlophehi Makhetha, P.W.4 continued on his way to Molumong from where he returned in the afternoon of the same day. It was on his arrival back home from Molumong (hat P.W.4 learned that A2 and Al had assaulted Lebohang and that the


35


watchman who worked at the cafe of P.W.1 had been found killed.


As stated earlier in the judgment, A2 gave evidence on oath, in his defence. Al did not. However, Teboho Notsi was called to testify, as D.W.1, in the defence of Al.


In his evidence, D.W.1 told the court that he was born on 3rd September 1985. Al was a brother of his mother and, therefore, his maternal uncle. He live at Mpharane with Al and his grandmother i.e the mother of Al. In his evidence in chief, D.W.1 testified that on the evening of Saturday, 2nd November 1996, he and his grandmother were sitting at home chatting about a school trip he was going to take to Bloemfontein, on the following day. At about between 8p.m. and 9p.m. Al, who appeared to be under the influence of intoxication, arrived home and joined in the conversation about D.W.l's school trip to Bloemfontein. At 10p.m, the grandmother retired to bed, leaving D.W.1 and Al who continued chatting until 12 midnight when they themselves went to bed.


It is to be remembered that, in his evidence, P.W.5 told the court that at about 8p.m. on 2nd November 1996 D.W.2 and Al who were carrying a radio cassette, some clothes and exh."1", respectively, called at his house. Later, on


36


the same night, D.VV.2 and Al again called at his house carrying bags of grocery which they subsequently took to a place called Linooeng. If, at 8p.m. and later on the night of 2nd November 1996, Al was at P.W.5's place, D.W.1 could not have been correct in his evidence that between 8p.m and 9p.m. he (Al) was at home. The evidence of P.W.5 was in that regard corroborated by P.W.3 who told the court that around 10p.m. on the night in question, he and Lebohang were at the home of 'Matsepiso when D.W.2 and Al arrived there.


In my view, Al could not have been at the home of P.W.5 and at the same time be at his home, as D.W.1 wished the court to believe. I am prepared to accept as the truth the evidence of P.W.5 corroborated by P.W.3 and reject as false the version of D.W.1, on this point.


D.W.1 told the court that, although there was no watch in his house, he was able to tell the time when the events of that night took place because the next door neighbour had a radio which was being played loudly. He could, therefore, hear when the time was being announced over the radio.

According to D.W.1, the bus, by which his school was to travel on the following day, was due to leave the school for Bloemfontein at 7:00a.m. It was going to be his first time to visit Bloemfontein. He was, therefore, very


37


excited about the trip to Bloemfontein, That was the reason why he remembered vividly the times when the events of 2nd November 1996 had occurred


It is, however, significant to mention that under cross-examination, D.W.1 testified that he did not remember the exact date when he travelled to Bloemfontein on a school trip. It was, however, on a Saturday.


Assuming the correctness of D.W.l's evidence that it was on a Saturday when he travelled to Bloemfontein on a school trip, it stands to reason that he could not have been testifying to the truth when, in his evidence in-chief, he told the court that on that Saturday, 2nd November 1996, Al had arrived home drunk at about between 8p.m. and 9p.m. and joined in the conversation which he (D.W.1) was having with his grandmother about the trip to Bloemfontein on the following day. That day must, in my view, have been a Friday because on Saturday he (D.W.1) was in Bloemfontein.

Assuming the correctness of my view, P.W.5 may well have been correct in his evidence that at about 10p.m. on the night of Saturday, 2nd November 1996, A1and A2 came to his house carrying bags of grocery. Indeed, under cross examination D.W.1 told the court that he would not dispute it if P.W.5


38


tcstified that at about 10p.m. on the night of Saturday, 2nd November 1996, Al

and A2 had come to his house carrying bags of grocery.


In his testimony, D.W.1 told the court that during the night preceding the day on which he was to travel to Bloemfontein, he slept in the same house with Al who did not wake up or go out for the whole night. The reason he said so, was because, in the morning of the following day, he noticed that a skipper and a blanket which were placed on Al's bed when they got to bed on the previous night were still as they were.


According to D.W.1, in the morning he woke up at 5:00a.m. and prepared himself to go to his school where he and other school children were to wait for the bus. He knew that it was 5:00a.m. when he woke up on that morning because he had gone to a lady by the name of 'Mamokoai who lived next door to his house and enquired what time it was.


D.W.1 told the court that there was a watch in the class-room at his school. Before the bus could actually leave his school premises for Bloemfontein, he went into the class-room and checked the time. It was 8:30a.m. when the bus left for Bloemfontein. He did not know what time it was when they arrived in Bloemfontein because he did not have a watch with


39

In his evidence, D.W.1 told the court that he never had a passport. When he went to Bloemfontein in 1996 he used a permit to cross into the Republic of South Africa. On his return from Bloemfontein, he handed the permit to his mother for safekeeping. He did not know what his mother, who had since passed away, did with the permit.


After he had returned home from Bloemfontein D.W.1 went to his granmother, by the name of 'Mamahlape, at a place called Lekhalong. She was a different person from Al's mother with whom he lived at Mpharane. On his return from Lekhalong, D.W.1 found that Al was not at home. He learned that he (Al) had been arrested by the police.


In his defence, Moruti Makhetha testified as D.W.2 and told the court that he too lived at Mpharane in the district of Leribe. He never attended school and was, therefore, illiterate. He was, however, able to read a watch and tell the months of the year.


In his evidence, D.W.2 told the court that one evening in November 1996 he and Al were drinking beer at the home of one 'Matsepiso at Mpharane.


40


They were sitting together with a certain Kokole as they drank beer in 'Matsepiso's house. The three of them had a lot of beer to drink on that night According to him, D.W.2 alone bought six (6) quarts of beer which he shared with his two drinking companion that night. At about between 10 and 11p.m., D.W.2 felt that he was quite drunk. He corroborated, therefore, the evidence of P.W.5 and P.W.3 that Al could not have been at home around between 8p.m. and 9p.m. as D.W.1 wished the court to believe.


D.W.2 told the court that whilst he and Al were drinking beer at the home of 'Matsepiso, P.W.3 and Lebohang, who were much older than them (D.W.2 and Al), arrived at the beer house. On their arrival, P.W.3 and Lebohang took the beer which D.W.2 and Al were drinking and spilt it on them (D.W.2 and Al). As they did so, P.W.3 and Lebohang asked D.W.2 whether he was already drinking beer. In reply, D.W.2 told P.W.3 and Lebohang that it was quite unnecessary to ask him such a question for they (P.W.3 and Lebohang) could see for themselves that he was drinking beer. Thereupon, P.W.3 and Lebohang started fighting D.W.2 and Al. The four grappled with each other till they got out of the drinking house.


Whilst the fight was going on outside the house, Lesolathebe and Moorosi, together with many other people who had been drinking in the beer


41


house,came out and intervened or stopped it (the fight). After the fight had been stopped, D.W.2 and Al left the place and returned to their home. After they had gone out of 'Matsepiso's premises, D.W.2 noticed P.W.3 and Lebohang following them. They (D.W.2 and Al) threw stones at them. One of the stones hit P.W.3 who fell to the ground. Lebohang ran back to Matsepiso's house. D.W.2 and Al then went to where P.W.3 had fallen down and started beatting him with sticks. After beating P.W.3 with sticks D.W.2 and Al continued on their way home. However, on the way they decided to waylay Lebohang. Whilst they were waylaying him, D.W.2 noticed Lebohang walking along the lower path that led to his home. D.W.2 and Al then went to and caught up with him. They also beat him up with sticks and dispossessed him of his radio and a bag in which the radio was contained.


It will bo recalled that, in his evidence, P.W.3 testified that he and Lebohang had arrived at 'Matsepiso's place before the arrival of Al and D.W.2. Shortly after Al and D.W.2 had arrived at 'Matsepiso's house P.W.3 and Lebohang left the place. There was, therefore, a discrepancy between the evidence of P.W.3 and that of D.W.2, on this point. Although in his evidence D.W.2 told the court that there was a fight at the home of 'Matsepiso and in the course of that fight P.W.3 was hit with a stone and sticks, there was no mention of this in the evidence of P.W.3. It is, however, common cause that


42


early in the morning of the following day P.W.3 was out looking for D.W.2 and Al. I must say I find it incredible that P.W.3 who had been severely assaulted at night, as D.W.2 wished the court to believe, could have been up and looking for D.W.2 and Al in the morning of the day following that night. A reasonable thing for P.W.3 to do in the circumstances, would have been to remain at home just like Lebohang admittedly did.


He that as it may, D.W.2 went on to tell the court that, after he and Al had assaulted and deprived Lebohang of his bag containing the radio, they continued on the way to their respective homes, in the village of Mpharane. He told the court that on their way home, he did not hear Al uttering the words "Ha ho motho ea tla tsamaea mona title le rona Bo-Morena Phau" (Loosely translated: Nobody will walk about here except we, Bo-Morena Phau). It is to be recalled, however, that P.W.3 said those words were uttered by D.W.2 himself and not Al. In all probabilities, D.W.2 was testifying to the truth in his evidence that he had not heard Al uttering those words.


D.W.2 denied that, on the night in question, he and Al had been at P.W.l's place where they broke into the cafe, assaulted the deceased in count I and stole the grocery, the subject matter of count II. It is to be remembered, however, that, in his evidence, P.W.5 told the court that, on the night in


43


question, A1 and D.W.2 called at his house on two occasions. On the first occasions. D.W.2 were, inter alia, carrying exh. "1" and exh. "2", respectively In his evidence, P.W.1 identified exh. "1" and exh. "2" as the weapons which the deceased in count I, who was a night watchman at his (P.W. l 's)cafe always used whilst he was on duty, at the cafe. In the evidence of P.W.1 exh "1" was the deceased's own property. Exh. "2" was his (P.W.l's) own property which he had, however, lent to the deceased so that he (deceased could use whilst on duty at the cafe. On the second occasion they came to his (P.W.5) house, on the night in question, Al and D.W.2 were carrying bags of grocery listed on exh. "B". They both told him that they had taken the grocery listed in exh. "B" from P.W.l's cafe after they had assaulted the night watchman (deceased) who then ran away.

There was no suggestion that Al and D.W.2 were under a coercion of any sort when they told P.W.5 that they had taken the property listed in exh. "B" from P.W.l's cafe after they had assaulted the night watchman who worked at the cafe. What Al and D.W.2 said to P.W.5 amounted, therefore, to a confession. The evidence of P.W.5 was, in a way, corroborated by the evidence of P. W.4 who told the court that, on the night in question, D.W.2 had come to his house carrying a bag which contained a radio and exh. "2". He (D.W.2) left the bag and its contents at his(P.W.4's) house. In the morning and


44


before going to a place called Molumong, P.W.4 took the bag and its contents to D.W.2's parental home where he handed them to one Mohlophehi, the elder brother of D.W.2.


Although D.W.2 denied that he and Al had been to the cafe of P.W.1, on the night in question, there is in my finding no doubt that P.W.5 was testifying to the truth in his evidence that they did come to his house twice, on that night, carrying exh. "1", exh. "2" and the grocery listed in exh."B" when they confessed to him that they had taken exh."B" from P.W.l's cafe after assaulting the deceased in count I. In his denial, D.W.2 was, therefore, not being honest with the court.


Returning to his evidence, D.W.2 told the court that in the morning following the night on which he and Al had assaulted Lebohang, he woke up at 10a.m. and learned from some people that there had been an alarm raised to the effect that a person had been found killed at a culvert on the outskirt of the village of Mpharane. He subsequently met P.W.3 who assaulted and fastened him with wire saying he should do what he did to him on the previous night. According to D.W.2, P.W.3 was alone when he met and assaulted him. He denied, therefore, the evidence of P.W.3 that he (P.W.3) was in the company of one Tutu.


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D.W.2 told the court that as he assaulted him, P.W.3 ordered him to go with him to the home of Matsepiso. It was on their way to the house of Matsepiso that P.W.3 and D.W.2 met Tutu Makhetha who was admittedly his (D.W.2's) relative. When they met him, Tutu Makhetha asked P.W.3 why he was fastening D.W.2 with a wire and assaulting him. In reply, P.W.3 told Tutu Makhetha that he (D.W.2) and Al had assaulted him and Lebohang on the previous night. It was whilst Tutu Makhetha was talking to P.W.3 that an alarm was raised that a person had been found dead at the culvert P.W.3 then asked D.W.2 whether he and Al were not the ones who had killed that person. According to him, D.W.2 denied it. However, as a result of the alarm they all proceeded to where many people had gathered at a culvert.


D.W.2 confirmed that on arrival at the culvert he found a dead person whom he identified as Tseliso, the deceased in count 1. Later on, the police arrived and carried away the deceased in their police vehicle. Thereafter D.W.2 returned to his home. He Subsequently left his home for a place called Kolonyama to visit his maternal uncle who had been involved in a car accident. He confirmed that it was whilst he was at Kolonyama that P.W.6 and the late D/Tpr Kharafu came and arrested him. He was taken to Maputsoe where he gave a statement at the police station.


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Considering the evidence as a whole, I am satisfied that on the night of Saturday, 2nd November 1996, P.W.l's cafe in the village of Mpharane, was broken into, the night watchman (deceased in count I) assaulted and the property listed in exh. "B", as well as exh. "1" and exh. "2" which were in the possession of the deceased whilst on duty at the cafe removed therefrom. Having cautioned myself of the dangers of the evidence of P.W.5, as an accomplice, I am convinced that he was testifying to the truth when he told the court that on the night of Saturday, 2nd November 1996, Al and D.W.2 had called at his home carrying exh "1" exh"2" and the property listed in exh. "B". They confessed to him that they had assaulted the deceased at P.W.l's cafe and took possession of the property listed in exh. "B". On their own confession, there is no doubt, in my mind, that Al and D.W.2 did assault the deceased. The answer to the question I have earlier posed viz. whether or not they were the persons who had assaulted the deceased and inflicted upon him the injuries that brought about his death must, therefore, be in the affirmative.


The next question that arises for the determination of the court is whether or not in assaulting the deceased and inflicting upon him the injuries that brought about his death, as they did, the accused persons had the requisite subjective intention to kill. Although there was no evidence that the accused persons had planned or premeditated the death of the deceased, there


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was over whelming evidence, which I accept, that his assailants had assaulted the deceased who sustained multiple open wounds on the head. In assaulting the deceased with weapons, as lethal as exh "1" and exh. "2" on the head which is the upper portion of a human body and, therefore, vulnerable, the accused persons were aware that death was likely to result. Nevertheless, they carried out the assault regardless of whether or not it did occur. In the circumstances,, I find that in assaulting the deceased and inflicting upon him the injuries that brought about his death, the two accused did have the requisite subjective intention to kill, at least in the legal sense.


As regards count II, the evidence of P.W.1 that, on the evening preceding the morning on which his cafe was found broken into he had properly closed the windows and locked the doors thereof was not really disputed. In gaining entry into the cafe and removing therefrom the property listed in exh. "B", as they confessed to P.W.5, the two accused persons must have done so by committing a Housebreaking. In his evidence, which was, again, not disputed, P.W.l told the court that he had not permitted the accused persons or any other person to break into his cafe and remove the property listed in exh. "13".


There is evidence, which I accept, that after they had removed the


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property from P.W.l's cafe, the two accused persons took and hid it at Linooeng. There can be no doubt in my mind that in so doing the accused persons' intention was to deprive P.W.1 permanently of his property. The evidence has thus established beyond a reasonable doubt that the accused persons did commit the crime of Housebreaking with intent to steal theft.


In the result, I come to the conclusion that the two accused persons are guilty of the offences of Murder and Housebreaking with intent to steal and theft, against which they both stand charged in Count I and Count II, respectively. They are accordingly convicted as charged, on both Counts.


EXTENUATING CIRCUMSTANCES


Having convicted the accused persons of murder, in Count I, the court is, now enjoined by the provisions of section 296 of the Criminal Procedure and Evidence Act, 1981, to determine the existence or otherwise of any factors that may tend to reduce the moral blameworthiness of their act. In this regard, the court was told that in 1996 when they committed the offence in Count I, Al and A2 were aged 19 years and 18 years, respectively. They were, therefore, still youths who could not be expected to behave like adults or mature people. The accused's youthfulness is a factor to be properly taken into account for


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purposes of extenuating circumstances.


There was evidence, accepted by the court, that on the night they committed the offince, in Count I, the accused persons were under the influence of intoxication. That was after they had been to the home of 'Matsepiso where there was beer drinking. It is a fact of life that, when they are under the influence of intoxication, people do things they would otherwise not do when sober. Intoxication is a factor to be properly taken into consideration for purposes of determining the existence or otherwise of extenuating circumstances.


An it has been stated, earlier in the judgment, in assaulting the deceased and inflicting opon him the injuries that brought about his death, the accused persons had the requisite subjective intention to kill, in the legal sense i.e. there was no evidence that they had planned or premeditated the death of the deceased. This lack of premeditation of the death of the deceased is, in law, an extenuating circumstance.

Consequently, I find that there are, in this case, extenuating circumstances vis. the accused persons' youthfulness, intoxication and the absence of premeditation of the deceased's death. The proper verdict is,


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therefore, that both accused persons are guilty of murder with extenuating circumstances, on Count I.


My two assessors agree with this finding.


SENTENCE


In mitigation of their punishment, the crown counsel informed the court that the accused persons had no record of previous convictions. They were, therefore, first offenders.


In addition, the defence counsel invited the court to consider a number of factors in mitigation of the punishment of the accused persons. The factors were eloquently stipulated by the defence counsel and it is, therefore, unnecessary for me to go over them again. Suffice it to say they were all taken into consideration in assessing the punishment that is appropriate for the accused persons, in Count I and Count II.

Despite all the factors that have been taken into account, in mitigation of the accused persons' punishment, the court is not prepared to turn a blind eye to the seriousness of the offences with which they have been convicted.


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In Count 1 the accused persons have been convicted of murder. They have unlawfully deprived another person of his life. The life of a human being is God-Given and for that reason sacred. The law of this land forbids a person to unlawfully kill another. There is nothing wrong with such a law. It derives from the Divine Command "Thou shall not kill". The accused persons are no exceptions. If they thought the deceased had wronged them, the duty of the accused persons was to bring him before the courts of law where Justice would be sorted out in a civilised manner - certainly not to take the law into their own hands and kill the deceased. Indeed, the courts have, in numerous decision given a warning that they take a diem view of people who unlawfully kill others. However, this warning seems to be going unheeded and many cases of homicide are still brought before the courts of law.


It seems to me that in killing the deceased, as they did, the accused person' purpose was to commit the offence against which they stood charged in Count II. The accused persons could not, in my view, be permitted to commit the offence under Count I to attain their purpose of committing the offence under Count II. The principle is that the end does not justify the means. Where the offence under Count 1 is committed as a means of committing the offence under Count II, there is clearly an element of aggravation. The incident of Housebreaking with intent to steal and theft is


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too rampant in this country.


For the above reasons, I come to the conclusion that there is a need to impose a punishment that will deter the accused persons from a repetition of the sort of behaviour with which they have been convicted. A sentence that will serve as a lesson to the accused persons and people of their mind that the courts of law will not tolerate this kind of behaviour. The accused persons are accordingly sentenced as follows:


Count I: Al is to serve a term of 15 years imprisonment. A2 is to serve a term of 15 years imprisonment.

Count II: Al is to serve a term of 7 years imprisonment. A2 is to serve a term of 7 years imprisonment.


The sentences in Count I and Count II are to run concurrently.


B.K. MOLAI

JUDGE


25/06/03