R v Bolelekoa and Others (CRI/T/130/02)

Case No: 
CRI/T/130/02
Media Neutral Citation: 
[2004] LSHC 113
Judgment Date: 
23 September, 2004

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CRI/T/130/02

IN THE HIGH COURT OF LESOTHO


In the matter between:

REX

VS

PUSETSO BOLELEKOA

MAKHALANYANE TEKANE

MAHLOMOLA RAMOKOATSI


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 23rd September. 2004


Accused persons were charged of murder it being alleged that:


' upon or about the 2th day of January, 2001 and at or near Lisaleng in the district of Mokhotlong the said accused, one, the other or all of them did unlawfully and intentionally kill LEFA RAMPOKO .


Accused persons asked to plead to the charge had plead all not guilty.


The Crown had called P.W. 1 Tpr. Mahloko who sworn had stated he was a member of the Lesotho Police Service from 1997. He says he became a police detective in 1998. In January, 2001 he was stationed at Sani Top,


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Mokhotlong district and on 23/09/03 he had received a report from Ntiti Chopho that someone had died. He had opened a docket and proceeded to the place with Tpr. Nhlapo and Ntiti. At Lisaleng they had found many people plus the body of a person lying by the side of the road wearing gumboots lying on his side. He was not wearing anything on his body save a blanket. He had injuries on his body as if he had been sjamboked. They had taken him to the mortuary at Mokhotlong. He says the whip marks were all over the body and had no whip marks underneath his feet. After some days a postmortem was conducted.


Cross-examined by Mr. Molefi for the defence the witness has testified deceased was wearing trousers and had injuries around the abdomen and not the rest of the body.


NO RE-EXAMINATION


P.W.2 D/Tpr 'Mamookho Hlabana sworn had stated she was a police officer in Lesotho Police Service since 1997. In January, 2003 she was based at Mokhotlong Police Station and was still based there. She recalled events of 11/12/03 when she was on duty. She had earlier received a report about the killing of a person. A1 had arrived and she had demanded an explanation from him and he had said he was surrendering himself on the killing of a person. After he said what for he had come to her she says she cautioned him; she says in cautioning him she told the suspect he is being charged and he can elect to say anything or keep shut and if he gives an explanation she will take the explanation in writing. She says accused chose not to make an explanation. She says she gave him a murder charge and


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arrested him, taken him to court and remanded him in custody. On 02/02/01 A2 had come to her office saying he was surrendering himself on the killing of a person and after cautioning him he said nothing. Accused were accompanied by persons who called themselves suspects' guardians.


Cross-examined by Mr. Molefi the witness said they surrendered themselves but declined to give an explanation. That they told her a story relating to deceased she says they told her a story she was not satisfied with. She says accused did not give her an explanation and in any event the report was not satisfactory.


In re-examination she says accused gave her a report and not an explanation but merely a story. P.W.3 D/Tpr Lekoerje sworn had stated he was working for Lesotho Police Service and had been a policeman since 1990. On 09/02/01 he was at Mokhotlong on duty and Mafeto Ramokoatsi arrived saying he was accompanying Mahlomola Ramokoatsi (A3) who made an explanation after the witness introduced himself to A3. The witness had then cautioned and arrested A3. He says he cautioned accused that he was before the police and could speak though if he did so he would take the story down in writing and the story could be used as evidence against him. Accused had given an explanation and he had charged A3 of murder and arrested him. He says it was not necessary to follow explanation.


NO CROSS-EXAMINATION


P.W.4 Ntiti Chopho sworn had stated he lived at Manemane village, Thaba-Tseka and that A1 was his sister's child and his shepherd. He says by


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beginning of 2001 he believed A1 was still his shepherd; he says he has never attended school and all he knows is when he is told this is year so and so. When deceased died A1 was still his shepherd and he remembered what happened when deceased died. The three accused had come to him from his cattlepost saying three sheep had disappeared plus a clock. Two sheep were his and the third one belonged to A1. They had endeavoured to look for the sheep with A2 and they found somewhere the sheep were forced in and they followed the spoor to Molefi's cattlepost. There they found three shepherds and talking about sheep they found their 2 sheep with the third sheep missing and the other two shepherds fled, they had endeavoured to arrest the other shepherd being the deceased. He had fled and was arrested after some pursuit and he had been driven to where the sheep was slaughtered. As they walked along, deceased was tired and unable to walk. Deceased and accused, so the story went on, had not reached the place where deceased allegedly slaughtered the sheep for deceased was claiming to be hungry. They had gone to deceased's cattlepost, cooked mealie pap and having eaten deceased said he was still hungry and would not go with them. They had, so accused said to P.W.4, that they chastised deceased by whipping to frighten him but had eventually left him. They said they left deceased on the way. They said they were bringing deceased to him at home for he was suspected of slaughtering his sheep and giving it to other shepherds. The witness says other than saying deceased would not go with them accused had not told him of deceased's condition. The witness has further testified saying they did not tell him why he could not go with them for in any event the matter had to be reported to the chief. He says when accused came to him he merely asked how they, as shepherds, could arrest somebody. Accused had said one of the neighbours and relative of deceased attacked deceased with a stick.


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The three of them did say they chastised deceased. He says he saw a whip with A1. He says as it was difficult to locate the chief he had gone to report to the police at Sani Pass the reason being he was concerned because shepherds are incapable of arrest. He says he went to report loss of his sheep the while the other shepherd had been arrested. He says from his home to the cattlepost he goes past 'Letsatsing' and 'Masokoaneng' and thence past maheising. He says they had not found deceased. After reporting the police had said at Lisaleng a person had died suspected of stealing a sheep. Though another sheep is still missing, he does not know whether it was slaughtered. He had gone to where the people were gathered and there saw deceased's body as told by accused. Having seen the corpse he had seen weal/whip marks and vomiting; the whip marks could have been 3 to 4. The corpse was lying sideways and wore a small blanket, a light donkey blanket. The accused having given him a report and while he was waiting for the chief accused persons had disappeared. He says he had not released them save saying he was going to the chief. He says after the incident A1 had stopped herding for him saying he wanted a paying job.


Cross-examined he says he was not told that after eating it is deceased who attacked accused persons. He agrees he had forgotten the name Thabang who on arrival had said: you are playing around with this thief who stole my lambs and he started belabouring the deceased. The witness has testified that accused are saying they did not associate themselves with what Thabang did, the reason they left deceased, this they told him but he did not take it seriously.


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Re-examined he says after A1 was released on bail he came to explain to him and did not herd his sheep anymore and instead accused drove away his sheep with him.


P.W.6 Chopho Chopho sworn had stated he lived at Thaba-Tseka, Matsieng. He was 18 years old and literate though he cannot recall dates and months. He says he knew Lefa (deceased) who came handcuffed and on the day he died he was present at P.W.4's cattlepost where he was told deceased had stolen sheep. He says it was A1 who said this in the presence of A2 and A3. The three accused had left him at the cattlepost going away with deceased; when accused left with deceased the latter was in good state of health and had no scars. He says deceased was going to show accused where the sheep was. He says A1 was holding sjambok and did not remember what A2 and A3 were holding though he thinks it was sjamboks. He says accused persons were not angry and deceased was cooperative and in good mood. He says he saw deceased leave with accused, has not seen him since and he has heard he has since died.


Cross-examined the witness repeats when he saw deceased in company of accused he had no injuries and he was co-operative at the time. He also says he is of the view accused would assault deceased for they believed he'd stolen.


Re-examined the witness says accused would assault deceased because they said he'd stolen. He did not know why they would assault deceased.


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P.W.7 Moeketsi Rampoka sworn had stated he is deceased's father and had examined the body of his son and found he had wounds behind shoulders and on the kidneys being stick and sjambok wounds. The wounds were swollen and the neck was broken swaying from side to side and the right eye was taken out. He had authorized post-mortem examination.


No cross-examination by Mr. Molefi.


The Crown had closed its case.


D.W.I Pusetso Bolelekoa sworn had stated he lived at Manamaneng, Thaba-Tseka district and he was a shepherd. He remembered the year 2000 when he herded sheep herding for P.W.4. He was illiterate and could not compute days, time, months and years. He knew deceased in his lifetime who was a shepherd. During the months January and February, 2001 he was a shepherd. At the time 4 sheep 3 of P.W.4's and one of his got lost and his investigation led him to deceased's cattlepost. He had found deceased in company of a man he did not know and he was with A and A .


He had asked deceased as to where the sheep were and he denied knowledge but one in his company had told him something and deceased fled. He says it is the man he does not know who fled and not deceased. Deceased had then said he drove the 4 sheep and slaughtered one releasing the other three sheep. He had said the slaughtered sheep he had not eaten for there was lightning and he gave it to the dogs; he says the reason was because it was thundering and he was afraid. The witness had asked deceased to take him to where the sheep was but before reaching the place


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accused had said he was hungry and they had returned to the cattlepost to cook food. After eating deceased had resisted going with them and they had threatened him by sjamboking him that is to say the three of them had sjamboked deceased. They had handcuffed deceased and driven him to where the sheep was allegedly slaughtered. They had got to where the sheep was slaughtered and there they found the head deceased saying the dogs had eaten the rest. Deceased had been made to carry the head and driven to P.W.4's cattlepost. At the cattlepost they had found P.W.6, cooked and ate and deceased had declined eating saying he was not hungry; driving deceased to P.W.4's they had not got to P.W.4's for on the way came one Thabang and others saying deceased had been stealing from them and they were taking him away and they had left with deceased. He says in their presence Thabang and his men beat deceased with sticks and they had not associated themselves with the beating. They resisted Thabang and his men taking deceased away from them but had failed. He says this occurred in the veldt and they had informed P.W.4 of the incident. When they left deceased with Thabang and company the latter were assaulting him. At a later stage they had heard deceased had died and they reported themselves to the police station the reason being they had arrested deceased. He says that at the cattlepost where they found P.W.6 deceased was in good condition. He says when Thabang and company took deceased away from them he was in a good state of health and in them sjamboking deceased there were no visible injuries. They had told the police they sjamboked deceased but sjamboks were not demanded from them.


Cross-examined by Mr. Mokuku for the Crown the witness says A1, A2 and A3 were not holding anything and changes his mind to say they were


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holding tree branches. He says they chastised deceased when he refused to go and show them where the sheep was. They had gone to where the sheep was after chastising accused. He says they cooked for deceased thinking he would run away. He says in his evidence he never said deceased attempted to run away. Put to him they looked for deceased because he had already been fastened and was thereafter assaulted, he denies. He assaulted deceased because he was refusing to go and after assaulting him he agreed to go. They assaulted him to show where the sheep was and after assaulting him he agreed to go. It was the three of them who assaulted him. Deceased never attempted to flee save refusing to go with them. He says he agrees with P.w.4 that he never got to the place where the sheep was slaughtered though P.W.4 may have forgotten what the witness told him. He agrees when he reported the events to P.W.4 they were fresh in his mind; he now says that he told P.W.4 he never got to where the sheep was, he says P.W.4 could be mistaken for he told him. That P.W.4 said having not got to the spot it had been decided to take deceased to P.W.4, the witness says he told his counsel his story and this is what he has told the court. He says he told P.W.4 a sheep's head had been found and deceased had been left with the people who took him away from them and had reported to P.W.4 as to what had happened to the sheep and head.


He says deceased's hands were fastened in front with a grass rope and he carried the head in front of him in his hands. He says when animals go missing they are looked for until found otherwise they were reported to owners.


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He says they never recovered the three (3) sheep except the slaughtered one. They identified the sheep by its earmarks; it was his. Deceased was seized by Thabang and others at Lisaleng being the road to and from P.W.4's home, a route they had taken returning to P.W.4's cattlepost. He says P.W.4 found them at the cattlepost. Put to him deceased found on a footpath used by villagers and by him the previous day, returned by the same footpath though he did not see deceased, he says he did not see deceased and he did not flee. That P.W.4 said they reported to him they left deceased along the way because he could not keep pace, he says he remembered that; as to how he reconciled this with saying deceased taken away from them by Thabang and others, he says P.W.4 is not telling what he told him. He agrees they had no right to assault a suspect though they had reported to the police station their sheep were stolen and they had arrested someone.


The bush (moqhoboqhobo) was used by A and A to beat deceased and he used a sjambok. Deceased had not fled. He says their weapons would not leave marks on deceased for all they did was to threaten deceased. Put to him they took advantage of deceased not running away and put the blame on him and belaboured him with weapons until he was tired and left for home, he says they used the same route with deceased being the route to P.W.4's and back. He says he denies what P.W.4 says that he did not find them at the cattlepost. He agrees his story differs from that of P.w.6 and what he told the police.


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In answer to a question by the Assessor accused says he agrees he did not indicate deceased carrying a weapon and in any event he whipped deceased on the foot but otherwise denies assaulting deceased.


The defence closed its case.


Mr. Mokuku has submitted there were inconsistencies in the defence case and that as to the defence case that they are not the ones who assaulted deceased who was instead assaulted and abducted by Thabang and found later dead near the footpath, as the story was not put to P. W.4 who testified accused persons claimed to have left deceased on the way because he was tired and it was getting late, the defence story cannot be true. I am of the view that Mr. Mokuku is mistaken to say the defence was not put to P. W.4 for, on the contrary, and during P.W.4's evidence-in-chief, it was P.W.4's evidence that accused did say one of the neighbours and relative of deceased attacked deceased with a stick. The witness went further to say accused persons did say they chastised deceased. In cross-examination by Mr. Molefi for the defence, P.W.4 admitted he had forgotten the name Thabang who, on arrival, according to accused persons had said: 'you are playing around with this thief who has stolen my Iambs' and he started belabouring the deceased. There can be no doubt that the defence put its case to the Crown witness Ntiti Chopho, P.W.4. Actually, when the Crown did not call Thabang for us on the bench it was a matter of concern wondering what had overtaken Mr. Mokuku. Mr. Molefi for the defence has submitted in view of the fact that it cannot be said the Crown has proved its case beyond reasonable doubt or that when accused persons whipped deceased they had the necessary dolus or culpa, that they be found not guilty of either murder


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or culpable homicide. Mr. Molefi has further submitted there is proof deceased was taken from accused person by Thabang and severely assaulted by Thabang and company.


There can be no doubt that accused persons assaulted deceased or as they said chastised him. Accused persons have shown although deceased was chastised as they said, the chastisement was such that it left no marks on deceased. The postmortem report as to injuries sustained by deceased shows 'multiple marks of severe beating all over the body' and cause of death according to the Dr. was neuro genie shock which Mr. Mokuku has correctly understood as collapse of the nervous system. It could well be that accused persons are responsible for deceased's death and there was plenty of Crown evidence that they are responsible. However, accused have raised a defence. It is a defence that was raised in course of the Crown case and as shown above, P.W.4 alluded to this in his evidence-in-chief and made himself even clearer in course of cross-examination.


The defence which accused persons raised is that in course of their detention of the deceased they suspected of stealing their sheep and while he was being driven to P.W.4's, emerged one Thabang and his company claiming deceased had also stolen their lambs and why were accused playing around with the thief and Thabang and company had belaboured the deceased. What I understand accused persons to say is that Thabang and company interceded or came between them and deceased and while they had assaulted deceased, it was not a severe assault, severe assault having come from Thabang and company.


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The problem is that accused persons have a valid defence and the defence was raised in course of trial. The law is that in criminal cases onus of proof is on the Crown throughout the case. When accused raised the defence above, it behoved the Crown to rebut or disprove the defence in course of Crown case; by it came in course of Crown case I mean the defence came timeously and yet the Crown did nothing about it. I have already rejected Mr. Mokuku's submission that the defence was not put for it first came from P.W.4 in his evidence-in-chief and was pressed upon him in cross-examination.


As I understand the defence, it is in a class falling under the concept novus actus interveniens meaning, according to Snyman, Criminal Law, 2nd Ed. at p.61 'a new intervening event' which the courts apply to determine causation though it is not in all cases that the concept or expression prevails. For example where a victim is bludgeoned on the head and is taken to a doctor for treatment and on the way he is struck by lightning, this does not necessarily exculpate the original offender for but for his injury to the victim, he would not have gone to see the Dr. and en route struck by lightning. Our case is different in that not only was there a deviation from the original cause but new, unexpected cause of events took place or as Snyman p: 62 has said quoting Hunt 345, 348: "An event------- is likely to be regarded as a novas actus if it is abnormal, unlikely, in the light of human experience, to follow an act such as that committed by X". Snyman has also quoted Burchell Hunt p. 119 (General Principles of Criminal Law, Vol. 1, 2nd Ed. where he says "The novus actus (or nova causa) interveniens concept is often described in terms of an abnormal event which will serve to break the chain of causation.' What happened in the


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case of accused persons was an abnormal event and of course the chain of causation was broken. Accused persons little expected that while deceased was in their custody Thabang and company would intervene, take away deceased from them assaulting him. I wish to repeat it could well be this is not what happened accused persons are making up a story. Be this as it may, P.W.4 has supported accused person in this respect saying this is what accused persons reported to him and according to P.W.4 he did not take this seriously for as he said, he was skeptical of herdboys or shepherd effecting an arrest.


It was for the Crown to disprove the defence and it failed to do this. Since the Crown failed to disprove the defence and in the result it is difficult to say who between accused persons and Thabang and company inflicted injuries that caused deceased's death, this court has no choice but to give accused persons benefit of the doubt and accordingly accused persons are found not guilty of the offence charged or culpable homicide. In view of the fact, however, that accused persons have admitted chastising deceased with light weapons and such that could not leave marks or cause serious bodily harm, accused persons are also not found guilty of Assault GBH but Assault Common.


IN MITIGATION


It has been suggested the boys are young and the offence of which they are convicted minor.


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The court agrees save adding that these sort of a crime are now numerous and have to be stopped somehow.


SENTENCE:


Having regard to the person and circumstances of the accused the least sentence to be imposed on accused is 6 cuts with the light cane.


My Assessors agree.


G. N.MOFOLO JUDGE


For the Crown: Mr. Mokuku

For the Defence: Mr. Molefi


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