R v Matsoai and Others (CRI/T 45 of 89) [1990] LSCA 161 (17 October 1990)

IN THE HIGH COURT OF LESOTHO In t he matter between:- R E X and MOHLAKOLA MATSOAI TSA8ELLO MATSOAI MALEFANE MATSOAI CRI/T/45/89 1st Accused 2nd Accused 3rd Accused J U D G M E NT Delivered by t he Honourable M r. Justice J. L. Kheola on t he 17th day of October, 1990. The accused are charged with t he crime of m u r d e r; it being alleged that on the 15th day of November, 1987 and at or near ha Matsoai in the district of B e r e a, they each or other or all of them unlawfully and intentionally killed Matsoai M a t s o a i. They pleaded not guilty to t he c h a r g e. T he defence admitted t he depositions m a de at the prepara- tory examination by t he following w i t n e s s e s. 'Makatiso Ntisa (P. W.1) who raised an alarm when the wife of the deceased reported /2 -2- to her that her husband had been killed; Mochesela Ntisa (P. W.2) whose evidence is to t he effect that when he heard the alarm he w e nt down to the f i e l d s. He saw A2 leaving t he dead body and he was holding a black piece of timber stick (He identified the piece of stick before Court as t he o ne A2 was h o l d i n g ). He examined the dead body and saw a wound on the head from which bones w e re protruding, a wound on the back of t he head and a fractured arm. The field in question belonged to t he f a t h er of t he deceased; but after his death it was used by the father of the accused. At the time of this incident it had been ploughed by the deceased and he had planted wheat which was being grazed by the cattle of t he accused; Trooper Lelala (P. W.6) w ho examined the dead body at t he scene of t he crime and found several wounds on the head from one of which brain m a t t er was appearing, he found a piece of stick at the scene of the c r i m e. It was marked Exhibit " 1 "; Detective Trooper Ramone (P. W.7) testified that the accused 1 came to Mapoteng Police Station and gave him a sword and said that he had used it in t he f i g h t i n g. It was marked Exhibit " 2 "; Kheola Matsoai (P. W.3) identified t he body of t he deceased to t he doctor; Litaba Lekanyane (P. W.10) convoyed A2 to t he police station in his vehicle and O r. Gotink (P. W.11) is the medical practitioner who carried out a post-mortem examination of t he body of the deceased. He formed the opinion that death was due to severe head trauma with skull fracture and extensive brain d a m a g e. There was a huge laceration on the forehead,with clearly visible skull fracture and brain damage; open scalp wound on the left side and above the left eyelid and a fractured lower arm with a laceration. /3 - 3- The first witness called by the Crown in this Court is Tau Matsoai. He is the son of the deceased.and he is eighteen years old. The accused are his paternal uncles and they are brothers. On the morning of the 15th November, 1987 he was at his home when he saw cattle grazing on his father's field on which there was wheat which had been planted by his father. A1 was herding the cattle. The deceased went to the father of the accused in order to report to him that his son. was deliberately grazing cattle on his field. On his return he reported that the father of the accused had said that those cattle were being looked after by men like himself. He and the deceased went to the field. On their arrival there the deceased greeted A1 and immediately after that A2 and A3 arrived. The deceased asked A1 what those cattle wanted there. A1 said there were weeds (theepe) on the field and he wanted that the cattle should grace the weeds so that he can plough the field. A3 said that A1 should leave the deceased alone so that he could do what he wanted to do. The deceased said he was satisfied but A1 shouted "Attack!" The accused attacked the deceased and hit him with their weapons. A1 struck him with a sword, A2 struck him with a stick and A3 hit him with a sword. (Tau identified Exhibit " 1" as part of A2's stick and Exhibit " 2" as A1's sword). He ran away because A2 hit him with a stick on the waist. /4 -4- Under cross-examination Tau deposed that at the time they saw the cattle grazing on his father's field his father was ready to leave for Kimberley where he worked. They did not take any weapons when they went to the field because the intention of the deceased was to impound those cattle. The deceased was wearing a blanket and he (Tau) was sure that he was not hiding any sword under his blanket because he saw him when he was putting it on. He denied that Exhibit " 2" belonged to the deceased. When he ran away the deceased had been hit three times. The stick of A2 broke when he hit the deceased on the head with it. He denied that A1 had Exhibit " 1" and that the deceased was in a bad mood when he arrived at the field. He denied that Exhibit " 1" broke when A1 warded off a blow delivered by the deceased with Exhibit " 2 ". Tau estimated that the village is about 700 to 800 yards from the field. 'Matau Matsoai (P. W.2) was at her home at about 8.30 a.m. on the 15th November, 1987. She was in the company of her husband (deceased) and their son Tau. They saw the cattle of Mojalefa and Nako grazing on the field of the deceased on which wheat was grown and they were being herded by A 1. The deceased went to the father of the accused and to Nako to report to them what A1 was doing to his field. When he cage back he went down to the field with Tau. She remained at home but she could see the field from her home. When deceased and Tau arrived at the field, A2 and A3 also arrived. She then saw them fighting but she did not see how the fight started. /5 -5- The deceased fell down and she then tried to go down to the field. She did not reach the field because on the way she met A3 holding a sword and he chased her. The field in question is about 1 kilometre from her home. She and the deceased saw and recognized A1 who was 1 kilometre from them and that is why the deceased went to A1's father in order to make a report. P. M.3 'Makhotso Seotsanyana testified that she lives in the same village with the accused. On the day in question she was at her home when she saw the cattle of the father of A1 grazing wheat on the field of the deceased. A1 was looking after them. She saw the deceased and his son (P. W.1) going to the field. At the same time she saw A2 and A3 go to the same field. As she was far from the field she did not clearly see what was happening but she saw that they were fighting. One person fell down and she saw that things were being raised up in a manner indicating that they were hitting the person who had fallen down. Motjotjo Patsi (P. W.4) is the younger brother of the father of the accused. The deceased is the son of his late brother Mohlakola who was the owner of the field in question. After his (Mohlakola's)death his fields (there are three of them) were allocated to the deceased by the family and the local chief confirmed the family decision and formally allocated the fields to the deceased. /6 - 6- On the day the deceased was killed he received a report as a result of which he took his stick and proceeded to the fields. He saw cattle and people on the field which is the subject matter of these proceedings. A1 and A3 were holding shiny objects and were going in the direction of Letsoela's village. When he arrived at the field the deceased was already dead and A2 was still looking after the cattle. He was holding one stick and a piece of a broken stick similar to Exhibit " 1 ". He testified that the accused were killers and killed the deceased because he saw them leave the deceased. He was about two hundred or three hundred yards away when he saw them. He admitted that during the lifetime of Mohlakola the field in question used to be ploughed by the father of the accused. However he did so under the system of sharing with Mohlakola who was the owner of the field. A1 testified that on the 15th November, 1987 he was herding his cattle on the field in question on which there was no wheat but wild weeds. The deceased and his son. (P. W.1) arrived. The former was very angry and asked him what he (accused) intended to do. Even before he could answer that question the deceased struck at him with a sword he was holding (he identified Exhibit 2 as that sword). He warded off that blow with his stick and immediately struck the deceased on the arm with his stick. As a result of that blow the sword fell on the ground. He (accused) took the sword and struck the deceased on the head with it till he fell down. After he had fallen down he never assaulted him again . A2 and A3 were not there at all and he alone fought with the deceased. /7 - 7- Regarding t he field A1 says t h at it was being ploughed by his father since his (accused's) childhood. It never belonged to t he father of the deceased. A2's version is that he remained at home when A1 took out the cattle to g r a z e. A long time after t h at he w e nt down to the fields and m et A1 near the river. A1 was carrying a black sword and a piece of a stick. A2 says that he drove the cattle left by A1 and never reached t he field w h e re they had been grazing. He denies that ho chased P. W.1. A3 testified that on t he morning in question he was on his way to work in t he Republic of South Africa when he m et A1 near the river. The latter was holding a sword and a broken piece of stick; he (A1) reported to him that he had clashed with the . deceased at their father's field. A3 denies that he e v er participated in the fight between A1 and t he deceased. The accused are implicated in t he m u r d er of the deceased by four Crown w i t n e s s e s. P. W.1 was at t he field with the deceased and saw what happened. According to him all the accused hit t he deceased on the head with t h e ir respective w e a p o n s. He is corroborated by his m o t h e r, P. W.2 w h o, though she was about one kilometre away, saw that t h e re was a fight leading to her husband falling d o w n. She rushed down to t he field but failed to reach it because on the way she m et A3 who chased her away with a sword in his hand. I agree with t he criticism of her evidence on the ground that she was a little bit t oo far to see exactly what happened at the field. She confessed t h at she did not see how the fight started but saw that t h e re was a fight a f t er A2 and A3 had -8- It is also correct that t he evidence of P. W.1 and P. W.2 should be approached with caution because they are closely related to t he deceased and have been directly affected by his death. The impression I had of t he two witnesses was that they w e re honest and truthful w i t n e s s e s. P. W.1 admitted that as soon as the fight started he ran away and does not claim to have seen all that happened. In the same way P. W.2 does not claim to have seen what each of t he accused did to her husband. She could not have seen clearly what happened because she was a little bit too f a r. In any c a se t he evidence of P. W.1 and P. W.2 is corroborated by P. W.3 and P. W.4 who saw what happened. P. W.3 saw A2 and A3 .. leave the village. They joined their brother who was herding cattle on deceased's field. From her home she could not see w h at was happening except that those people on t he field were fighting and one of them fell down; t he others beat him up. All she could see was that they w e re raising up their arms and hitting the o ne who had,fallen down. P. W.3 impressed me as being an honest witness because she m a de no attempt to claim to have seen m o re than she d i d. P. W.4 is t he paternal uncle of the accused and, like all t he other Crown w i t n e s s e s, has never had any quarrel with t he accused. They have been on very good and cordial terms with him. In other words no reason was suggested why he could falsely implicate t he accused in this serious c r i m e. He did not see t he f i g ht but when he appeared at t he scene he s aw A1 and A3 leaving the deceased who had fallen d o w n. They were holding shiny objects - 9- and going in the direction of Letsoela's village. The question one may asked is: if the A3 was not involved in the fight why was he holding a shiny object and accompanying A1? The only reasonable inference to be drawn from his conduct is that he was running away from the scene of the crime because he had participated in the murder of the deceased. A3 boarded a vehicle with A1 and never returned to the scene of the crime. He alleges that he did not go to the scene of the crime because he was afraid as A1 had told him that the deceased bad died. It seems to me that was the very reason why he had to go to the field to see and help his cousin who had been killed by his own elder brother. He is a man of about twenty-five years of age and must have seen dead bodies many times and there was no reason w hy he was allegedly afraid of seeing the corpse of his own cousin. The real reason was that he was running away. A2 is also implicated by his own uncle who, when arriving at the scene of the crime, found him holding a full stick and a piece of a broken stick similar to Exhibit 1. P. W.4 says that because A2 was hodling those weapons he regarded him as a killer. His evidence is to some extent corroborated by P. W.1, P. W.2 and P. W.3 that he participated in the murder of the deceased. A1 has raised the defence of self-defence by admitting that he alone caused all the injuries which caused the death of the deceased in the manner described above in the summary of his evidence. /10