R v Monatsi and Others (CRI/T/22/96)

Case No: 
CRI/T/22/96
Media Neutral Citation: 
[2004] LSHC 156
Judgment Date: 
15 December, 2004

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CRI/T/22/96

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

V

SEHLOHO MONATSI 1st ACCUSED

POTJO MPU MAQALEHA 2nd ACCUSED

LEHLAKAMETSA SEHLAHA 3rd ACCUSED

MPHO LEFETA 4™ ACCUSED

MOJAKI KALANE 5™ ACCUSED

JOETSAMANG LELEKA 6™ ACCUSED

MONATSI MONATSI 7™ ACCUSED

FOHLA MAPONOPONO 8™ ACCUSED

KALONYENYE LEKOLA 9th ACCUSED

MABUSETSA MAKAKOLE 10th ACCUSED

THIBELLO LEBETSA 11™ ACCUSED


JUDGMENT


DELIVERED BY THE HONOURABLE MRS. JUSTICE K.J. GUNI ON THE 15th DECEMBER. 2004


  1. Identity of the accused.................sufficiency of the evidence of the eye witness Who had known accused persons very well over a long period of time prior to the commission of the alleged crimes.


Accused persons were recognized and identified during broad day light without any obstruction or hindrance to the witnesses sight.


Common purpose .................all the accused were acting together far the common purpose.


The accused traveled together in a group. All the accused were involved in the chase and assault of the deceased. They were all aware of the weapons in their possession and the likelihood of their being used. They all participated in the assault. They must have and did observe each other while each and everyone used his or her weapon to assault the deceased. They must all be held responsible for the death of the deceased who dies during that assault or immediately thereafter.


Murder..................causation

Competence of the court to reach the conclusion regarding the cause of death on the basis of other evidence where there is no medical evidence.


It is quite competent for the court to arrive at the conclusion regarding the cause of death on the basis of other evidence where there is no medical evidence.


Summary

All the accused were seen by the various eye-witnesses from different positions or viewing points at various times and different stages during the process of their assault upon the deceased. The assault went on for a period of 2 - 3 hours. The deceased were chased and driven in and around their very own village by groups of men - including the accused persons in full view of their fellow villagers. This was done during broad day light at about 12.45 to 4 p.m. The deceased were beaten up by the accused and others - using sticks and sjamboks. The deceased were so badly beaten that they were apparently in a very bad shape. They were unable to walk properly due to the assault. This was done in full view of other villagers who observed the severity of the assault and its result. The deceased persons died in the hands of their assailants. One died during the assault and the other died shortly after he was assaulted. Medical certificates and post-mortem reports were not produced as they went missing prior to the trial. There was no medical evidence led before the court.


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Held: 1. That the accused were properly recognized and identified in broad day light without any difficulty, by the eye-witnesses who had known them over a long period of time prior to the alleged crimes.


  1. The accused were acting all together for the common purpose to chase and apprehend the deceased for detention for allegedly committing burglary at the first accused's shop.

  2. All the accused must have been aware that the manner in which they carried out the alleged assault upon the deceased, with the type of weapons they used, death was the likely result. They deliberately or recklessly continued perpetrating the alleged assault regardless of the likely consequences.

  3. There was no evidence that the deceased person were suffering from any ill health prior to their arrests and assault by the accused. The evidence showed that they were well and moving about their daily business when they were caught and assaulted to death fay the accused persons.

  4. In the absence of medical evidence the accused were properly convicted of murder on the basis of the evidence of eye witness.


CHARGES


All the accused are jointly charged with two counts of murder and two counts of assault with intent to do grievous bodily harm. All the charges were committed on the 26th November, 1990, at KHATLELI also known as MAKALONG and at KHONOFANE in the district of MOKHOTLONG.


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OUTLINE OF THE CROWN CASE IN COUNTS I & II


The accused persons were recognized and identified at the scenes of crimes by eye-witnesses. Some accused were on horsebacks, others were traveling by two motor vehicles and at times on foot. It was about 12.45 p.m. when the accused arrived at the village of MAKALONG. They were seen assaulting one PAKISO LEOMA with sticks and sjamboks. The group of the accused persons and others were seen chasing after one EKETSANG LEOMA. They caught EKETSANG. While they assaulted him by beating him up all over his body with "mabetlela"sticks and various types of sjamboks, they escorted him to his home and other places such as PAKISO'S house. Blows delivered by some of the accused and/or others not before this court, caused the deceased - PAKISO to fall.


While the deceased had fallen he was beaten even more as he was being ordered to rise up and accused of pretending to be dead. PAKISO LEOMA was assaulted severely while lying prostrate on the ground. His life ended then and right there while being belabored with a sjambok on his private parts. EKETSANG died shortly after he was so assaulted but while he was still in the hands of his assailants who drove him first to MAPHOLANENG police station and later to MOKHOTLONG police station from where both deceased persons were taken to MOKHOTLONG HOSPITAL MORTUARY.


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COUNTS III AND IV


ASSAULT WITH INTENT TO DO GREVIOUS BODILY HARM The two complainants in these two counts are the relatives and/or friends of the two deceased persons in counts I and II. The complainant in count III is one TEBOHO LETSELA. The complainant in count IV is one LETLAKA LEOMA. They were arrested by the accused and assaulted while under arrest. Their hands were handcuffed behind them. The beating with sjamboks continued unabated as the complainants were being driven around to various places by the accused.


The accused demanded from these two complainants the production of the goods which allegedly were being sold by the two deceased persons in this matter.


They were also being asked to tell their assailants the whereabouts of the two deceased persons and the goods which they were allegedly selling. Their crime, for which they were severely sjamboked, was their failure to produce the deceased persons and the goods sought. After being escorted to various places, while being assaulted, the two complainants were later abandoned and told to go free when released from the arrests.


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DEFENCE


There are a few defence cases or perhaps one case in different shades - depending from which view point one looks at it.


First of all it was put to crown witnesses that they could not and in fact did not see what they claim to have observed, at the time it happened at the scene or scenes of the crime. The reason being that the landscape and/or the topography of the area - where the alleged offences were committed is such that those witnesses from their specified, viewing points or positions could not have seen what they claim they saw, (The dispute arose - as a result an application was made for an inspection in loco. That application was granted. The court went for an inspection in loco. The report of the said inspection was made by myself and accepted by the parties]. This dispute was put to rest when the observations made at the inspection in loco, clearly showed this court that nothing could and nothing did obscure or obstruct the sight of any of those witnesses. Then the shade of the defence case was that the accused persons were not at the scene or scenes of the crimes where the witnesses claim they saw them. That they did not perform the actions the witnesses claim they saw them perform. If they were at the scenes of the commission of the crime, the accused were just watching other people those who are not before this court - perform the acts complained off.


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The other side of the coin of the defence case is that the actions the accused persons were seen performing, were carried at the instructions or orders of the chief - PW1. It is Pw1 who suspected the two deceased persons of burglary at the SEHLOHO's shop. It is Pw1 who invited the accused persons to come and arrest the two deceased persons. This is a disguised admission by the accused that they did arrest and assault the deceased persons, but this they carried out on instruction of the chief - Pw1.


The defence changes again to denial of the allegations made against the accused by the crown witnesses. Defence claims that the injuries from which the deceased died, were self inflicted. One of the deceased was alleged to have jumped off the moving motor vehicle when attempting to escape from police custody. He fell and sustained those injuries which killed him. His death, therefore cannot be blamed on those accused persons.


HISTORY OF THIS CASE


Sometime early November 1990, Pw1 - Chief KAMOHO LETJAMA also known as QETO, was awakened by a very loud, fears and anxious barking of his dogs. This happened at his residence in LILIMALA village in the district of MOKHOTLONG. It was about 02.00 hours when he was so awakened. He saw a torch light through his bedroom window. He then stood up from where he was sleeping and went outside to investigate.


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When he was outside, he heard the loud voice saying "it is me! MPU, the nightwatchman at SEHLOHO'S shop!" Realizing that the night intruder meant no harm, chief KAMOHO calmed down his excited dogs. They kept quite. MPU then came near the chief and reported that ntate SEHLOHO's shop has been broken into. Immediately the chief ordered that all the villagers be awakened and assemble at ntate SEHLOHO's shop. He further instructed MPU to return forthwith to the shop. He went back into his house. He dressed up and followed MPU to the shop. On his arrival at the shop, chief found the villagers - men and women even children already assembled in accordance with his order. He asked MPU to show him where the breaking-in was effected. MPU showed him a chipped brick which was still on the wall. There was no sign that entry has been effect as the wall was still solidly sealed.


The chief then and there told MPU that he sees no sign of burglary. MPU informed the chief that he did not see the people who broke in. It can therefore be concluded, that he did not see them because they were never there in the first place. The chief then pointed out to MPU that he - MPU will give SEHLOHO - the owner of the shop, his allegedly stolen property because there are no signs of breaking - in. Nevertheless the chief ordered the assembled villagers to search for SEHLOHO's property in the neighborhood of his shop.


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In the nearby field a plastic Lesotho Bank bag which contained only a couple of copper coins was found and handed to MPU. Nothing further was found.


Chief KAMOHO caused a letter or a note to be written to SEHLOHO -informing him of the alleged burglary. The chief gave the letter to two boys who were ordered to run on foot to MAPHOLANENG where SEHLOHO resided in order to deliver that message. It was now early in the morning after the sunrise. Evidence shows the court that the two boys met SEHLOHO traveling by his motor vehicle. The boys recognized him and his motor vehicle. They waved him to stop but he ignored them and drove - on. SEHLOHO's shop is situated at the village of LILIMALA. The area in which the village and the shop are situated is called POOPA. LILIMALA is on one side of the river. On the other side of the river is the village of MAKALONG. Both villages are in the area of POOPA which is by trade served by that shop which is situated in LILIMALA.


SEHLOHO arrived at his shop that morning of the alleged burglary. He found the chief, with the villagers gathered outside his shop. He immediately on his arrival address the gathered villagers thus, "MA POOPA le thuoa shop ea SEHLOHO, ke shop ea borobeli ea ka e thuuoang!" literally translating thus "people of POOPA, you break into my shop? This is my eighth shop which is broken into". The chief asked SEHLOHO "did you see the boys?.


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Perhaps presuming that SEHLOHO has received the news of the burglary at his shop from those boys. The chief must have expected the answer to his question to be a "yes" but SEHLOHO shrugged his shoulders indicated "no or I don't know". He then continued his general address to the villagers, "Batsoali khalemelang bana ba lona. Le tlilo phura masapo le phehe setampo ka pitsa tse kholo". Translated: "Parents reprimand your children. You are going to break bones and cook samp in big pots". This is a figurative way of threatening or foretelling the people that there is going to be death. It is tradition and culture amongst the people of LESOTHO to slaughter a cattle and cook samp in big pots to feet the mourners at funerals. Funerals are traditional and culturally attended by many people. The chief interrupted SEHLOHO and he repeated his question - asking SEHLOHO if he saw the two boys he send to him. The chief was becoming disgusted with SEHLOHO's behaviour.


SEHLOHO did not accord the chief and his people the due respect and perhaps gratitude for their trouble to wake up at what we call bewitching hour, in order to assist him when the alarm of burglary at his shop was raised. In response at long last to the chief's inquiry, SEHLOHO remarked, "ah, those two boys - waving a piece of paper!" This was by no means a straight answer. The chief was still not satisfied. SEHLOHO must have noticed his dissatisfaction. SEHLOHO then proceeded to tell the gathering that he -SEHLOHO does not need the help from the chief, or police.


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He said he will sort out the matter himself. He - SEHLOHO ordered the villagers to disperse. Disappointed by SEHLOHO's attitude towards the matter under investigation, the chief also agreed that the people should disperse as SEHLOHO has ordered. The people dispersed.


The fact that there were no signs of breaking -in, coupled with SEHLOHO's behaviour and contemptuous treatment of those villagers and the chief who had come to assist, confirmed the chiefs suspicions that there was no burglary at all that night at that shop. Days went by, weeks went by, on the 26th November, 1990 events leading to the deaths of PAKISO and EKETSANG LEOMA begun to unfold.


ISSUES As gleaned from both the crown and defence cases


The first issue concerns the identity of the accused persons. Were they present at the scene of the crime? Were they properly identified thereat? If the accused were present at the scene or scenes of the crime and were properly identified what roil did they play in the murders of the two deceased's persons and the assault of the two complainants?


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In all the counts, were the accused acting together for a common purpose? Was there a conspiracy amongst the accused to murder the two deceased persons and to assault the two complainants.


IDENTITY OF THE ACCUSED


A1 - SEHLOHO is well known to PW1, 2, 3 AND 4 as the owner of the shop in their area- POOPA. Pw1 and Pw4 reside in LILIMALA village where A1's shop is situated. Pw2 and 3 reside in MAKALONG - the village just across the river which separated the two villages. Al is a well known businessman. He is known by the villagers who are served by his shop. A2 is also known to the villagers at POOPA including PW1, 2, 3 AND 4. They know him as the night watchman at SEHLOHO's shop. A2 resided in that same village - LILIMALA where SEHLOHO's shop is situated. He is known to the fellow villagers. The events of the 26th November 1990 happened around about 12.45 p.m. This was during broad day light. There was sunshine everywhere according to the evidence led. Therefore the visibility was bright and clear.


Pw1 while seated outside his residence, he heard a gun report. He got up and looked in the direction of the sound of the discharged firearm. He saw two men running in front of two horses which were without riders. These two men were running at the bottom of the slope of the mountain which was facing Pw1.


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There was yet another man in a dark blanket who was running in the same direction as the two men below. He was running at the higher level of that slope towards the top of the mountain. Another man appeared on horseback. He raised his horse to catch up with that man in a dark blanket Of the two men running on foot after the man in a dark blanket, one of them was wearing a pair of grey trousers and a short sleeved blue shirt. As this man slowed down or stopped Pw1 heard the gun report. He therefore concluded that the man in short sleeved blue shirt must be the one discharging the gun. They all disappeared into the river where two mountain chains nearly meet - creating a valley. Much later that same day Pw1 saw six or so people escorting one man whom they were beating up with sticks and sjamboks. They descended into MOTSETLANENG river - This is that river which separates the two villages ;- [LILIMALA and MAKALONG].


One JOETSAMANG LELEKA hit the man with a stick causing him to fall down. The man fell. The man did not rise up. Ntate SEHLOHO appeared at that scene. He was on horse. He enquired thus, "Ntate MABUSETSA is he refusing to get up?" Pw1 knows ntate SEHLOHO very well. He sees him at this scene of crime and properly identifies him. Pw1 noticed that Ntate SEHLOHO is that man, in a grey pair of trousers and blue shirt, chasing after another man in a dark blanket. SEHLOHO was now without a shirt. Therefore ntate SEHLOHO was one of the men chasing after EKETSANG - deceased in count II.


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He seemed to collapse. He never again rose up. Those who were with the dead man took him from where he died. One held him by his head while the other two held him by his lower limbs'. They dumped him at the corner of the yard of SEHLOHO's shop. They went passed Pw1 who at that time had come down from his residence and was seated by the road side. Pw1 went closer to see the dead man. He recognized and identified him as PAKISO LEOMA. Pw1 confirmed his earlier conclusion and observations that he was dead.


SEHLOHO after those carrying the deceased, had dumped him, called out to Pw1, thus, " Ntate QETO, ntate QETO, morena!" translated loosely "father QETO, father QETO, chief!" or something like that. Pw1 did not speak but came closer to the dead person, where upon SEHLOHO said to him "motho oa hao ke eo" meaning "there is your subject". According to Pw1, PAKISO was not his subject. He was under chief KHATLELI. FAKATHOLO MOTABOLA - Pw2 is the neighbour of PAKISO LEOMA. His village is MAKALONG under chief MAKATLEHO KHATLELI. The indictment also indicates that the two crimes of murder of PAKISO LEOMA and EKETSANG LEOMA, happened at or near KHATLELI - not LILIMALA in MOKHOTLONG.


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The two villages LILIMALA and MAKALONG HA KHATLELI are separated by a small stream. Otherwise it is one village. The exchange which followed after SEHLOHO had presented PAKISO's corpse to the chief KAMOHO - PW1, confirms that the two men -SEHLOHO and KAMOHO know each other rather very well. There can be no mistake about SEHLOHO's identity and presence at the scene of the crime. Pw1 asked A1 - SEHLOHO why is the dead man his subject? He wondered if SEHLOHO thinks he can eat the corpse! There were no replies to those questions or comments. Under cross-examination Pw1 denied that he was the chief of PAKISO - deceased in count 1. Ntate SEHLOHO was merely mocking the chief - Pw1 or recognizing his presence at that scene


PW2 while seated outside his residence saw three horse riders about 2 - 21/2 kilometers away - on the road from KHUBELU traveling at the high speed towards east. Pw2 - FAKATHOLO MATABOLA, PAKISO LEOMA and MAEKETSANG and EKETSANG LEOMA are neighbours. FAKATHOLO's residence is between PAKISO's residence and that of MAEKETSANG'S where EKETSANG lives. FAKATHOLO was still seated outside his residence when those three horses with their riders on them re-appeared below MAEKETSANG'S residence. He heard one of them shout, " if a man of this MAKALONG village appears he must be shot and killed immediately or words to that effect.


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This utterance brought a chill in his spine i.e FAKATHOLO - Pw2. He was a man of that village MAKALONG - he was there - seated outside - his home. Therefore he could be seen and shot dead immediately.


Pw2 - FAKATHOLO noticed that the man who is making this utterances is SEHLOHO who was at that moment half naked -wearing only a pair of trousers without a shirt. They came to pass very close to where FAKATHOLO was seated - estimated about 25 paces away. Pw2 recognised and identified others in that group as MONATSI MONATSI - A7 and LEHLAKAMETSA - A3. These are the three riders. SEHLOHO was armed with a hippo skin - heavy sjambok which he held in his hand and a pistol at his waist. MONATSI MONATSI and LEHLAKAMETSA had plastic thin whips or sjamboks - what is commonly known as horse whips.


In accordance with BASOTHO culture and tradition the three men greeted FAKATHOLO as they rode passed him. That was acknowledging his presence. He also replied to their greetings. They passed.


The two riders - MONATSI MONATSI and LEHLAKAMETSA proceeded passed PAKISO'S residence. SEHLOHO went passed the girl - MASUNDAY who was seated under the tree near PAKISO'S residence. She lives there. She is PAKISO'S sister-in-law.


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She is deaf and dumb. SEHLOHO tried to talk to her. Pw2 heard him asking her about the whereabouts of PAKISO. SEHLOHO tried to talk to her in vain. SEHLOHO did not use sign language. SEHLOHO asked MASUNDAY "where is the owner of this house ". The girl was just staring at SEHLOHO - not understanding what he said. SEHLOHO also left - followed his companions - A3 and A7. perhaps SEHLOHO was disappointed by not getting a reply to his enquiry.


SEHLOHO-A1. MONATSI M0NATSI-A7, LEHLAKAMETSA-A3 Identified - taking part in the assault of PAKISO:


After those three accused persons had passed his house, PAKISO came out. He followed behind those three horse riders - A1, A3, and A7. SEHLOHO who by then had not quiet caught up with his companions, looked back. He must have seen the man - coming behind them. He turned his horse back and came to the man. When he arrived where the man was he asked him, "who are you?" The man replied, " I am PAKISO". SEHLOHO dismounted his horse. He produced his pistol, pointed it at PAKISO. He ordered PAKISO to sit on the stone which he indicated, near the house. PAKISO sat. SEHLOHO returned the pistol to his waist. He produced the handcuffs. His companions - A3 and 7 were there with him as he handcuffed PAKISO'S hands at his back. They had also returned. SEHLOHO asked PAKISO, "Where are the clothes you were selling at KH0N0FANENG7'


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PAKISO denied ever selling clothes at KHONOFANENG. The manner in which such question was put was an angry one. At the same time the three men had started whipping PAKISO with their sjamboks. By this time they were not more than 10 paces away from Pw2 -FAKATHOLO. He took a good look at them all and at what they were doing - i.e. their identity and the role each played in the assault of PAKISO. As they whipped PAKISO many men arrived.


At this juncture SEHLOHO left PAKISO and went to MASUNDAY -under the tree. He asked her and said, "Hi!, you, what did you say when I asked you where is the owner of this house?". SEHLOHO started whipping the deaf and dumb lady with his hippo skin whip. FAKATHOLO moved towards SEHLOHO and face to face said to him "ekaba sebopuoa sena sa Molimo o se tsekisang?" translated what is your problem with this handicapped person? SEHLOHO replied, don't you see she is hiding this person, I asked her about him and she kept quiet". FAKATHOLO told SEHLOHO that she does not speak. She understands only sign language. SEHLOHO left - with a regret or disgusted perhaps. [I am asking myself why Director of Public Prosecutions did not prefer an assault charge against SEHLOHO? All the male victims and/or normal people - have been given an opportunity to put their cases before the court.


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I see no difference between her - MASUNDAY and other complainants in the assaults counts in this matter, except that she is a woman and disabled. Is this discrimination against woman or the disabled? Be that as it may.]MONATSI MONATSI and LEHLAKAMETSA were seen by Pw2 - driving PAKISO - i.e. escorting him into the house. They were still whipping him. Once in the house Pw2 did not see what was taking place therein. They took sometime being inside that house.


Pw2 heard the banging of tin trunks as they open and shut or being moved or knocked about. They eventually came out of that house, still whipping PAKISO. They drove him passed PW2'S forecourt and between his houses. They proceeded to MAEKETSANG'S house.


As they passed they were very close to Pw2 who was holding his dogs in order to prevent them from attacking the man who was being beaten by everyone around him. Pw2 observed that PAKISO'S face was full of bruises from the whipping. Apart from the first three who started to whip PAKISO, Pw2 could not tell nor count the numbers now. A lot of the men came down from the mountain at the time SEHLOHO(A1), MONATSI(A7), LEHLAKAMETSA(A3) started assaulting PAKISO. Amongst them, Pw2 recognized and identified MPU MAQALEHA - A2, JOETSAMANG LELEKA and MABUSETSA -these two are late.


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THE MEETING OF SEHLOHO AND EKETSANG AS WITNESSED BY PW2


When SEHLOHO shouted, "tell that EKETSANG to hurry up" Pw2 saw EKETSANG emerge at the foot path near PAKISO's home. He came to his home under escort. They drove him into his house. When they came out EKETSANG sat down and said he was tired. SEHLOHO said "come and hold on the tail of my horse". Those near EKETSANG picked him up and supported him as he walked to the horse. He held its tail. SEHLOHO'S horse drugged him along as the rider urged the horse to go. Pw2 saw both decease persons in the company of the accused persons who were still assaulting them by beating them with sjamboks. The deceased had sustained injuries. They had been badly and severely beaten. The accused persons named by Pw2 were known to him prior to the commission of these offences. He recognized them and identified them in a bright clear day within a very close proximity.


Pw3 MAKEKETSANG has known SEHLOHO for a year. He has known MPU since he started his job as- a night watchman at SEHLOHO'S shop. On the 26th November 1990, Pw3 went to SEHLOHO'S shop. As she crossed the stream in front of SEHLOHO'S shop she saw a white motor vehicle van stop. One person whom she recognized as MPU alighted. He ran into the shop. He had nothing in his possession as he ran.


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He came back, still running but this time he had a stick in his hand. MPU admits that he was armed with a stick. He boarded the motor vehicle which then took off. The red motor vehicle also came behind the white one. The two motor vehicles travelled in the same direction and stopped at the stream. There were a lot of passengers in the white motor vehicle. Pw3 could not identify them as they were not near. She could not see if there were people in the red motor vehicle behind. On her way back from the shop, Pw3 saw those two motor vehicles again - traveling in the direction of her village -MAKALONG. She also saw the three horse riders on their horses which hurried towards her. As she approached her home she noticed a lot of people standing in amazement and or puzzled. She was taunted by the passengers in that white motor vehicle.


She heard voices coming from the passengers of the white motor vehicle. The first voice said "ke 'ma ngoana" translated "it is the mother or the mother of the child". The second voice was someone singing a song which went as follows: "khomo e hana ka namane" translated "the cow is refusing with its calf" or something to that effect. The motor vehicles and the horses followed the road near Pw3's residence. On horse back Pw3 recognized and identified SEHLOHO - A1, LEHLAKAMETSA - A3, MONATSI MONATSI - A7. A1 was without a shirt. These are the same people seen and recognized by her neighbour - Pw2 Mr. FAKATHOLO MATABOLA


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The accuracy of the identification by observation of an eye witness depends first of all on his or her eye sight, the light and the distance. SVM 1963 (3) SA 183 T at 185 E. All the eye witnesses in this matter had no complaint with their eye sight at the time in question. The persons sought to be identified in this matter were previously well known over a long period of time. These eye witnesses were not making their very first acquaintances. R V DLADLA 1962 (1) SA 307 (A) at 310- Therefore the accused person's facial characteristics and clothing are of less importance. In a bright day light and within a very close proximity, the witnesses had ample opportunity to recognize and identify the accused persons. There is no doubt, that the observations of these eye witnesses are accurate. These accused were not present at KHONOFANENG where the two complainants were assaulted. There is no evidence implicating A1, 2 and 7 on the two last counts of assault. Therefore they are acquitted on those charges.


MURDER - COUNTS I AND II


By definition murder is the unlawful and intentional causing of the death of another human being. CRIMINAL LAW CR SNYMAN, Third Edition page 401, REX V NDLOVU 1945 AD. 373. The accused persons in this case were seen assaulting the deceased persons by hitting them with sticks and sjamboks all over their bodies.


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The assault perpetrated upon the deceased by the accused was a very severe one. The eye witnesses who saw the actual assault upon the deceased take place, have told this court that the deceased were covered with blood from top to bottom. To Pw2 the two deceased person appeared to be in a very bad shape.


As their neighbour who knows them very well Pw2 noticed that both the decease persons could not walk properly as they were being driven by their assailants between their houses. Despite this bad shape and the obvious injuries already caused, the accused persons did not at any stage exercised some restraint. They continued to assault the deceased even when they had fallen down.


What was the intention of those men who belabored the persons that had fallen. The accused were seen assaulting the deceased who sustained many and severe injuries all over the body. One of the deceased died during the assault. The other died shortly after the assault. There was no medical evidence led. The post-mortem report and medical certificate disappeared prior to the commencement of the trial. According to the evidence of the eye­witnesses, the deceased PAKISO seemed to collapse and fall into coma during the assault as SEHLOHO - A1 sjamboked him while lying prostrate on the ground. The witnesses observed that he died during this episode of that assault.


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EKETSANG was loaded on the motor vehicle still alive although his condition, due to the assault perpetrated upon him, was pretty bad. He had been beaten to such an extent, he could no longer manage to walk. The motor vehicle conveyed him to MAPHOLANENG POLICE STATION and then to MOKHOTLONG. He was found to be dead on arrival at the MOKHOTLONG POLICE STATION.


There is no evidence of ill-health or any kind of ailment suffered by the deceased persons prior to the assault by these accused. Evidence shows that they moved about their daily business as usual. They had only just arrived from NATAL - REPUBLIC OF SOUTH AFRICA where they had gone to seek employment.


A court, therefore is not precluded from coming to a conclusion about the cause of death of the deceased merely because there is no medical evidence. It is competent for the court to find the accused guilty of murder on the basis of the evidence of the eye-witnesses who observed the accused assault the deceased to death. THABISO TSOMELA V REX 1974 LLR page 97.


It is proper and competent for the court to find the accused guilty of murder where there is evidence of eye-witnesses who saw the accused assault the deceased who died then and there at that spot or scene of the assault or deceased who died shortly after the assault.


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INTENTION


The intention to kill is always inferred from the surrounding circumstances of each case. It is seldom express - REX V THABISO LETJOETSO 1971 - 73 LLR at 180 B. The accused persons were armed with dangerous weapons e.g. sticks(mabetlela), sjamboks and a gun.


The vicious manner in which all the accused took part in the assault indicates that the intention was to kill or cause grievous bodily harm. The bodies of the deceased were full of sjambok or sticks marks and bruises caused by the same.


The accused continued these assaults for a prolonged time not caring what harm they are likely to cause. Even when those deceased persons were covered with blood from the head to their toes the accused continued unabated with the assault. It can be said that they intended to kill the deceased or that they did not care if they died.

SEHLOHO - A1 was heard expressing his desire or intent to finish off PAKISO who could not get up from where he had fallen. Al denies he expressed his intention in the manner described. He denies assaulting the deceased. He admits asking MABUSETSA if the deceased PAKISO refuses to get up.


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He claims he was informed by MABUSETSA that PAKISO is dead. This is the reply A1 claims he got from MABUSETSA. None of those witnesses who heard Al asked a question, heard the said reply. I accept that he received no reply because he, Al then proceeded to assault the deceased. Why would he whip a dead man? Why would he order him to rise up as he whipped him? Can whipping resurrect a dead man? Al did not tell this court that he ordered the deceased to rise from the dead. His expressed intent was "to finish him off!" He was seen belabouring him until he collapsed and fell into coma. His intention to kill was made known by him to those who heard him say "let me finish him off' as he proceed to whip him to death. The three accused - Al, a2 and A7 are found guilty of murder with a direct intent to kill.


COMMON PURPOSE


Although A2 and 7 did not express their intention to kill anyone of the deceased persons, they were seen by eye-witnesses take part in the assault of the deceased persons. They were alt armed with various weapons. They were aware of the weapons in the possession of their co-accused. There was a strong possibility or likelihood of their being used, in fact they saw their co-accused use the weapons in their possession during the assault upon the two deceased persons.


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Evidence shows that the accused moved all together. When the deceased persons were caught and attacked each and everyone of the accused participated in the assault. They all acted together for a common purpose. Whether or not initially the common purpose was to apprehend and arrest the deceased persons, the manner in which the intended arrest was carried out was recklessly excessive and dangerous. The accused committed the assaults while carrying out an illegal arrests.


The assaults were not a method of arrest but an exertion of intended punishment. This was wrong and unlawful. They all took part knowingly and regardless of the consequences. The accused persons were seen and identified amongst the assailants of the deceased person. They were participants - not by-standers. All the accused were armed with sticks and sjamboks which they were seen using as they hit the deceased on the body with the said weapons. They accused were acting together. They all accept that they went to arrest the deceased persons. They were then observed assaulting the deceased as they arrested them. They caused the injuries inflicted all over the deceased's body.


The manner in which they carried out the said assault, so severe and vicious, clearly indicates their common purpose was to kill the deceased. None of them disassociated himself with that assault,


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As the deceased persons were being assaulted, they were being driven around - giving anyone who wishes to disassociate himself with the actions of the assailants to drop or fall away. No one intervened to restrain the others from continuing the assault. They continued the beating of the deceased until one of them died on the spot during the assault. The person who engages himself in the unlawful assault of another, is guilty of murder if that person died during the assault or immediately thereafter.


EXTINUATION


Evidence has shown this court that the accused persons searched for and hunted down the deceased on the suspicion that the deceased persons broke-into SEHLOHO 'S shop and stole some property which was not known. This may be true or false. But the accused believed they were entitled to arrest the deceased. That belief too may be wrong but its correctness is not an issue. The accused must be treated in accordance with their beliefs. The accused therefore had a grudge against the deceased. The extenuating circumstance is any factor which may serve to reduce the blameworthiness of the crime the accused has been convicted of. Their anger against the deceased is an extenuating factor. I have found that the manner in which they assaulted the deceased, was a clear demonstration of their anger.


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PW2 in his evidence told this court that even the manner in which the accused asked PAKISO questions, was the angry one. The accused claim that they were arresting the deceased persons for a wrong they had allegedly committed. They were excessive, malicious and extremely cruel in the manner in which they went about effecting the said arrests. Although they are not excused, their blameworthiness is reduced. Therefore they are not going to pay the ultimate price of death as they should because there are extenuating circumstances in their case.


SENTENCE


A1 you may have been aggrieved, but the manner in which you went about to ventilate your said grievances was itself a blatant disregard of the law. What is even more disreputable is the fact that you went about publicly - showing the general public that you have no respect whatsoever for the law and/or the law enforcement agencies. Courts are part and parcel of law enforcement agencies. You counsel describes you as a community leader who out of your own pocket finance or fund some social and sporting activities in your area -MAPHOLANENG.


But at POOPA where you make or earn some of the money that you use in financing those sporting activities at MAPHOLANENG, you reigned terror on the 26th November 1990. You were traveling in POOPA with an army of 40 -50 armed men.


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It was such a show of power and strength. There were men and women standing and watching in amazement the match of your army. When you notice that you have attracted and held their attention you made threatening utterances which were intended to and did in fact instill fear to the hearers. We read in news papers about the private armies in COLUMBIA - SOUTH AMERICA. BASCOBA did not only have his own private army but his army was even bigger and better equipped that the national or state army. The powers of the "drug lords" in SOUTH AMERICA by far surpassed those of state agencies. They are loved and respected by the members of the community as the providers of jobs and other means of earning their likelihood.


Yes you are a powerful person to be able to recruit and command that size of your private army. You must find a proper balance of your values. True, it is not easy to be good to everyone at all times. But one should not go out of one's way to commit the activities of battering people to death in broad day light, in public. A1 on the occasion of the alleged burglary at your shop, you demeaned the chief before his subjects. You pointed out that you do not need the chief/and the police. These are some of the institutions which maintain law and order in this Kingdom. They cannot be dispensed with. But you did and proclaimed that you will sort out the matter yourself. The commission of these offences is how you sorted out the matter yourself.


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You recruited these other accused into your army. A7 and others are such recruits. Your nightwatchman - A2 was not telling the truth on that occasion when he woke up chief KAMOHO - Pw1 and reported burglary at your shop. There had not been any breaking-in. Your behaviour on your arrival at the scene confirms that.


I repeat what Pw1 said to A2 at the time when he realized that A2's report about the alleged burglary, was false. He said to him "you will give SEHLOHO his goods now that I see no sign of burglary". A2 -MPU you are the one who started the ball rolling.

Those events culminated into the loss of two young lives. EKETSANG was forced to leave his three months old baby who will only learn later of his or her father's tragic death. May be PAKISO'S children heard of their father's painful death, but because of their tender age may be they do not appreciate its significance right now.


For being sent to jail, your counsel has already pointed out to this court that your dependants will suffer some inconvenience or even hardship. But that is only temporary. You are alive. You are still with them. PAKISO'S and EKETSANG's dependants are permanently deprived of the breadwinners. This did not just happen.


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For three weeks or so after the alleged burglary at ntate SEHLOHO'S shop he went about recruiting members of his private army - how on earth did he find 40 -50 men he used to attack and kill the two deceased persons? Did they fall from heaven by magic? The answer is certainly "No" those that came to join your army on what basis did they join? A7 you are said to be the father of twelve children. Very well this court is urged to bear in mind their welfare when sentencing you. To you all. A1, 2, and 7 what roll model are you to your children? Big bullies? Who with violence instill fear or even harm others? You were showing off how powerful you were. Now in the 21st century, the rule of the survival of the fittest has no place in this Kingdom.


The experience is a very hard master. It is hoped that you have learned from this experience though I have my doubts because during the course of this trial, many of you accused persons for one thing or the other, were arrested, convicted and jailed for wrong doing? There is no time when you hesitate to take the law into your own hands. The Director of Public Prosecutions indicated before this court after your conviction of these murders, that you have no previous convictions. Yes, you were convicted after you have committed these crimes. You know the delay in bringing this present matter to finality was caused by the fact that some of you were not able to attend the continuing trial because you were in jail in Republic of South Africa and also in this country.


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The impression you made before this court is that you have no or very little respect for the law. The law has a very long arm. It took long to get you but eventually it did. You must now learn to respect it.


SENTENCES;-


Both murders are treated as one for sentence. They were carried out with one and the same objective at one and the same time.


A1 - 25 years imprisonment - for both counts I and II

A2 - 25 years imprisonment - for both counts I and II

A7 - 25 years imprisonment - for both counts I and II.


The long term imprisonment in respect of Al, A2 and A7 must start running from 1996.


K.J. Guni

JUDGE


Assessor : Mr. Motsamai

For Crown : Mr. Thetsane

For Defence : Mr. Ntlhoki

: Mr. Nathane


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