R v Mokete and Another (CRI/T 20 of 91) [1994] LSCA 98 (25 May 1994)

CRI/T/20/91 IN T HE HIGH C O U RT OF L E S O T HO In the matter between: R EX V L E K A TA M O K E TE RETSELISITSOE M O K E TE J U D G M E NT Delivered on the 25th May, 1994 by the Honourable Mr. Justice W. C. M. Maqutu, Acting Judge In this case the accused are charged with the crime of murder- In that upon or about the 17th day of November 1989, and at or near Ha Lesiamo in the district of Leribe the said accused did one or the other or both of them unlawfully and intentionally kill Leloko Molapo. Accused number one pleaded not guilty to the crime of murder but guilty to culpable homicide. Accused number two pleaded not guilty to the crime of murder. T he C r o wn refused to accept Accused number one's plea. T he position the C r o wn took in its outline of facts was that both accused had unlawfully assaulted the deceased. T he C r o wn promised that it will bring evidence to prove murder against both accused. T he Preparatory Examination w as held and concluded on or about the 24th August, 1990. T he accused have been out on bail. T he facts of this case are not straight forward. Both C r o wn witnesses and Defence witnesses were not particularly forthcoming about the cause of this tragedy. I will therefore give in a nutshell the series of events that led to the death of the deceased. I will start with what the Court observed at the ispection in loco because unless this is done nothing will fall into place. T he two accused, Lerata and Retselisitsoe, are the sons of Mokete while the deceased, Leloko, is the son of Molapo. Mokete and M o l a po were the lawful allottees of the right to till and use adjacent pieces of land c o m m o n ly k n o wn as "masimo" in Sesotho, the indigenous language of Lesotho. These lands had been in the M o k e te and M o l a po families for m a ny years. Both the accused and the deceased used these lands during the life-time of their lawful allottees. Trouble s e e m ed to have started w h en deceased, Leloko M o l a p o, ploughed the adjacent portion of the land of the Mokete's land which had been tilled by accused's family for several years. Accused N u m b er O ne brought a court action C C . N o. 117/88 in which they styled their claim wrongly. T h ey claimed deceased had ploughed a grass strip instead of showing that w h at had been ploughed w as a portion of their parents' land. Accused N u m b er O ne w as successful in the Local Court but the Central Court in C C . N o. 177/88 reversed the decision requiring h im to put his claim in an intelligible w a y. After deceased's death C r o wn witnesses were not prepared to tell the truth about w h at deceased had done. Fortunately at the inspection in loco P W .3 (the deceased's wife) unequivocally stated that deceased ploughed this adjacent land although it had been tilled by the accused's family for several years. Deceased had claimed to be asserting an old right to that land because he alleged the boundary had been wrongly changed. T he fight that led to the death of the deceased occurred almost seventeen days after the Central Court had reversed the j u d g m e nt in favour of the accused by ordering absolution from the instance. T he first accused says this case w as the cause of the fight. Could it be that the accused w as angered by the fact that he had been ordered to institute legal proceedings afresh? T he first accused does not say. There are no grounds to disbelieve h i m, therefore it follows that the result of the case and the first accused's resentment over a portion of the parents' land w h i ch deceased had ploughed smouldered. Unfortunately this smouldering resentment which the accused bore towards deceased's action is far too remote to be relevant material to the merits of these proceedings. It only puts the tragic events that followed in perspective. T he deceased had been passing over the accused family land to go and till his family land for several years. There is in fact a small foot-path that passes at the edge of this land w h i ch s e e ms to be used as a short cut to other lands. T h e se m a ny footpaths that go through people's lands are very c o m m o n. During the inspection in loco we used s o me of them. Therefore the footpath on the accused' family land w as nothing exceptional. On the fateful day deceased drove his scotch cart on accused' land to go and plant his parents' land that w as already ploughed. An impression w as given during evidence that deceased had used an access route that could be equated with a public road. It b e c a me clear and the dispute w as resolved at the inspection in loco that deceased drove his scotch-cart to his parents' land over the land of accused' parents. He had been doing so over the years without incident. At the inspection in loco it b e c a me clear that deceased could have gained access to his parents' land through other routes had he not regarded it as his right to pass over the accused' parents land over the years. It is c o m m on cause that while the deceased w as planting in his parents' land the accused ploughed the access route over their land in order to prevent deceased from passing over their parents' land as he usually did. At the inspection in loco whatever dispute there w as about this practice of the deceased s e e ms to have been resolved. W h at e m e r g ed w as that the accused exercised the right to plough their parents' land at the m o st inconvenient time for the deceased. T h ey so to speak terminated the courtesy of allowing deceased to pass over their land without prior warning to the deceased. T he deceased did not elect to look for alternate routes but sought the intervention of chiefs to pass through the accuseds' family land. T he Chiefs w e re unable to help. I have already said if deceased had really m a de an effort to do so, he could have found an alternate route. T he initial instructions of the accused to their Counsel do not disclose that they m a de their Counsel aware of the alternate route deceased could have used. It w as only after a recess over a week-end that the accused w e re able to describe the alternate route that the deceased might have used. Therefore this route w as not put to C r o wn witnesses. It s e e ms clear therefore that the accused w e re determined at that point in time to embarrass and inconvenience the deceased. T he first attempt by the deceased to get out of his family land through the accused family land w as d o ne in the presence of P W .5 S a k o a ne and the late Lioroane. P W .5 and Lioroane had been sent by the headman Motlatsi because he had received a message that there was trouble between deceased and the accused at their lands. In the presence of Lioroane and P W .5 deceased tried to go through accused's family land. Accused number one stopped him from passing as he had already ploughed the access route. P W5 and Liroane stopped deceased from carry out his intention to pass through accused's land. Deceased then went to Chief Lesiamo Molapo P W .4 after borrowing a horse from his village headman Motlatsi. He came back claiming he had failed in his mission (according to what P W .3 and P W .6 said). It was then that he decided to force his w ay through the family land of the accused. Deceased was at this time armed with a sword. There is a lot of dispute about what really happened later after deceased had fallen to the ground. There is also a dispute about what accused number one was armed with. P W .3 and P W .6 say accused number one had a stick and a sword, while the two accused say he only had a stick. Nevertheless it is initially c o m m on cause that accused number one stopped deceased cattle from going through his family land. Deceased got d o wn from the horse he was riding and began to fight with accused number one with a sword. Deceased hit accused number one on the head with a sword and accused number one fell down. Deceased began to hit accused number one with a sword while Accused N u m b er O ne was on the ground. Accused number two took a stone and hit deceased with it. T he evidence conflicts slightly on this point but deceased fell d o w n. B ut both sides agree that accused n u m b er o ne b e g an to hit deceased while he w as on the ground. P W .3 a nd P W .6 say accused n u m b er t wo also hit deceased while he w as on the ground. B o th accused d e ny accused n u m b er 2 participated in the assault. It is f r om this point that the evidence of the C r o wn a nd that of the accused b e c o m es different a nd irreconcilable. Nevertheless the serious w o u n ds on the head that caused the deceased's death are not denied. T he accused are unable to satisfactorily explain h ow they c a me to be there. T he bottom line of w h at they say is that they w e re caused by accused n u m b er o ne alone. A c c u s ed n u m b er t wo according to the accused o ne only hit deceased o n ce with a stone in defence of accused n u m b er o ne w ho w as being belaboured while he w as on the ground. T he Court's task is to resolve this dispute. It will be observed that accused n u m b er o ne pleaded guilty to culpable homicide w h i ch plea the C r o wn rejected. P W .3 M a k o p a no M o l a po (the wife of the deceased) is the first e ye witness to give evidence. S he said on this fateful d ay both accused w e re ploughing on the parents' land in the m o r n i ng hours. D e c e a s ed a nd his children w e re planting his parents' land w h en she c a me with refreshments or food. T he m o t h er of both /... accused told the accused to plough the access route which in PW.3's knowledge w as a public path. Deceased sent A n na Sakoane to the Chief about this. T he late Lioroane and P W .5 Sakoane c a me as the Chief's messengers. W h en they arrived the deceased drove his cattle to the closed access route, the two accused stopped them. P W .5 and Lioroane asked the accused w hy they stopped the cattle. T he deceased then left apparently to go and report to the Chief personally as we shall later see. W h at is significant in the evidence of P W .3 is that deceased was not going h o me w h en his cattle were stopped, he was only going to change planters as the planter he was using had broken d o w n. This first attempt to pass through the access route that had been ploughed over by the accused ended w h en Lioroane advised deceased not to pass there. P W .5 Sakoane Sakoane says in his evidence Chief Motlatsi sent him and Lioroane to accuseds' land to see what was going on. W h en they got there deceased said his path had been blocked. He said this path was used by the public. Deceased spanned the cattle and attempted through the path that had been ploughed over. Accused number one stopped the cattle as they were about to enter the area and said the following words or words to that effect: "Leloko you will not pass where I have ploughed. Y ou will not pass over my land, either you kill me or I kill you." /.. . P W .5 and Lioroane intervened and drove the cattle of deceased back to deceased's land. Accused n u m b er one thanked them for this. P W .5 advised deceased to go and report what had happened to Chief Motlatsi. Deceased went with P W .5 to Chief Motlatsi where he m a de a report. Chief Motlatsi provided deceased with a horse so that he could go and report w h at had happened to Chief Lesiamo M o l a po P W . 4. U n d er cross-examination P W .5 admitted that at the Preparatory Examination he never mentioned the fact that accused n u m b er one had said he would rather be killed or kill than allow deceased to pass over his ploughed land. Indeed P W .5 conceded he had not only been forgetful but w as inclined to exaggerate. P W .4 Chief Lesiamo M o l a po confirmed that deceased c a me before h im in the afternoon and reported that the t wo accused were blocking the path. He wrote a letter to M o k o la Molai the h e a d m an of the accused. Relations between deceased and the accused were not good because of the land dispute. It w as a dispute about a portion of the land belonging to the family of the accused. T he matter w as taken to the court. U n d er cross-examination P W .4 did not dispute that the path or access route deceased used w as on the family land of the accused. He could not be absolutely certain because he lives s o me distance away. This w as so despite the fact that he has a tree plantation next to the family land of the accused. P W .6 K o p a no (the son of deceased) confirms they have always gained access to their land through that path. He regards it as a path for the public. They had got to their land through that path. Accused number one closed it because accused number one claimed it w as on the land of his family. T wo Messengers of the Chief c a me as a result of a message deceased sent to the Chief. P W .6 and deceased spanned animals and tried to pass where the path had been ploughed, accused number one stopped them from passing there. T he Chief's Messengers tried to persuade accused number one to yield but accused number one resolutely refused to yield. Accused number two w as not involved at this stage although he was around. T he Chiefs Messengers and deceased left together. It is c o m m on cause that deceased c a me back on horse back later in the afternoon. P W .3 and P W .6 say deceased told them he had failed in his mission with Chief Lesiamo P W . 4. He then spanned the cattle which pulled the scotch cart and went towards the ploughed access route. It is at this stage that events that followed led to the death of the deceased. According to P W .3 accused number one said to the deceased, that deceased should get d o wn from his horse so that they could fight. P W .6 says words to the same effect although differently phrased. P W .6 puts what accused number one said to deceased as follows: "Leloko get d o wn from your horse let us c o me and fight. This is my family's land, you cannot pass here." What P W .3 and P W .6 said does not coincide at places but they both say after deceased had begun assaulting accused number one who had fallen on the ground from a blow delivered by deceased with a sword, accused number two hit deceased with a stone and deceased fell. Accused number one got up and began assaulting deceased and accused number two picked up the sword that had fallen from deceased and joined accused number one (who had got up) in the assault of the deceased who was still on the ground. They deny that accused number two intervened to stop the fight at all. In fact they both add that accused number one and number two, after deceased had been left prostrate for some time, again assaulted him when they discovered deceased was still alive because deceased had called deceased's younger son, Morero, to come and collect his blanket and hat or helmet. The two accused gave evidence. Both of them were not eloquent or impressive. Their demeanour and lack of communicative stills was a great draw back. It cannot be because accused number one is illiterate. In general the Basotho give evidence very clearly. Accused number two, who was literate, was even worse. In Hoffmann South African Law of Evidence 2nd Ed. at page 434 has correctly stressed: "Whether a witness should be believed or not is obviously not a matter w h i ch can be decided by consulting authorities ... T he value of observing the witness's demeanour.... should not be exaggerated. ... d e m e a n o ur can be a very unsafe guide." In the dispute over a portion of their family land with the deceased, accused n u m b er o ne in particular failed to properly articulate and even to frame his case in C C. 117/88 before the Local Court and consequently the Central Court in its appellate jurisdiction in C C. 177/89 directed that the case be heard afresh. Accused n u m b er o ne failed to tell me intelligibly the relevance of this case to the present tragedy. H ad we not g o ne on an inspection in loco, the relevance of C C. 117/88 which started at the Tsikoane Local Court and w as reversed on appeal in C C. 177/89 of the Tsifalimali Local Court w o u ld have been missed. We are here concerned with the assault on the deceased which both parties agree that it caused his death as the admitted evidence s h o w e d. T he lack of natural e n d o w m e n ts of the accused and their d im wittedness w as noted by the Assessors and I. E v en though it affected their d e m e a n o ur in Court, we have tried our best to see that all this does not affect our assessment of credibility. T he evasiveness of the t wo accused and their reluctance to satisfactorily describe h ow deceased got his injuries left us in no doubt that the accused were avoiding telling the Court the truth. We have very little doubt that deceased w as virtually uninjured during the exchange of blows with accused number one before he fell. At the commencement of the fight the deceased had gained the upper hand quickly and felled accused number one with a blow. All the terrible and fatal injuries were inflicted on the deceased when he was on the ground after accused number two had hit him with a stone. Accused number one was not prepared to state how long he had hit deceased on the ground. He sometimes said he did not count the number of blows he inflicted while deceased was on the ground at other times he alleged he hit deceased only twice on the head. Accused number two, who claims he was seventeen paces away when he emerged from the trees and took a stone with which he assaulted deceased , gave an unconvincing explanation of his failure to save deceased from injury at the hands of accused number one. According to accused number two, accused number one stood up and staggered before he proceeded to assault deceased with a stick. That being the case accused number two could have stopped the subsequent assault on the deceased if he had tried. Accused number two says he did not go near the fallen deceased because he was afraid deceased might get up and attack him. Accused number two was very evasive about the way he alleged accused number one assaulted deceased. He would not even try to estimate the number of blows that accused number one delivered and how this was done. Both accused number one and two refused to answer questions that could have shed light and helped the Court to determine how deceased suffered his injuries. In cross-examination it w as not put to C r o wn witnesses that accused n u m b er one w e nt back to the deceased to collect deceased's sword w h en deceased called M o r e ro to c o me and take his hat and blanket. T he impression w as given that they never w e nt near the deceased as the C r o wn witnesses alleged they did to finish off the deceased. To put everything in a nutshell I observed the t wo accused closely, their evasions, hesitations and reactions to a w k w a rd questions - S v Kelly 1980(3) SA 301 at 3 0 8 B C. I remain with an unhesitating feeling that both accused have lied outright and at places told the truth selectively. I have great difficulty with the evidence of P W .3 w h e re she states accused n u m b er one had a sword and a stick w h en he invited deceased to a fight. This story is corroborated by her son P W . 6. T he difficulty I have is not so m u ch w h at happened to the second sword but rather the fact that P W .6 quite innocently and truthfully admitted the influence of his mother on his evidence. He admitted they discussed the case, something that happens often in these cases but is never admitted. P W .3 and P W .6 have changed their evidence at places from w h at they said at the Preparatory Examination. P W .6 said w h at he said at the Preparatory Examination too w as a result of discussion with his mother P W . 3. T he can of w o r ms w as opened w h en P W .6 would not admit that he s aw accused n u m b er t wo hit deceased at the back of the head with a stone and his father fell. He had said this clearly at the Preparatory Examination. Before this Court P W .6 w as no m o re prepared to specifically admit that accused n u m b er 2 had hit deceased at the back of the head. It was at this point that P W .6 admitted the extensive influence of his mother on his evidence. T he problems which the Court had with P W .6 and the evidence of C r o wn generally on the assault as described by P W .3 and P W .6 became worse w h en P W .6 accused the police of stopping him from giving them the full facts. P W .6 in cross- examination gave the impression that the police stopped him from disclosing that there were two swords at the scene of crime one of them belonging to accused number one. P W .6 further said the police did not allow him to disclose to them the participation of accused number two in the assault of deceased. While the police m ay not be perfect, it is rather far-fetched to accuse them of defeating the ends of justice in this case. At the time P W .6 said this about the police he w as seriously in trouble under cross-examination. A lot of what he was saying was illogical. He could not explain m a ny things indeed he sometimes alleged accused number two used a stick not a sword. I could not be certain that accused number one was untruthful w h en he said he did not assault deceased the second time, though he could not really have gone to pick accused's sword as he alleged he did. My doubt is, if indeed Mosiuoa had said the accused should go back and kill deceased as P W .3 and P W .6 say they did, the injuries would have been m u ch more especially w h en a heavy stick and heavy swords were used. I had an opportunity to hold and wield the sword and the stick before Court. It is not really vital to the determination of this case to decide w ho the real aggressor was. T he accused in closing the usual access route without warning were out to harass deceased. This w as highly provocative especially because the accused could see that deceased regarded this route which passes over the family land of the accused logically or illogically as his right. T he accused were out to cut deceased to size. That in itself does not s h ow a clear intention to kill, m u ch as it w as intended to m a ke deceased's life difficult. I have already s h o wn there w as an alternate w ay out which deceased did not think of. If deceased had really tried, he could have found that route. It seems deceased was not prepared to b ow d o wn to the will of the accused. He sought the help of chiefs without success. There is a small footpath like m a ny others which pass on the family land of the accused. Such footpaths are c o m m on on other lands as well. A scotch cart would require a small road rather than a foot-path. I therefore cannot accept that the deceased could claim a right of w ay over the land in question. Nevertheless the accused sought a confrontation with deceased and they got it. Although accused number one might not verbally have invited deceased to a fight, through his acts he certainly was. Also by suddenly enforcing their rights /. . . he w as pushing deceased to do something if deceased so chose. Deceased fell into temptation of resisting the accuseds' act by force. He should have backed off as P W .5 advised him and actually persuaded him to do on the first occasion. In settled societies, individuals are discouraged and even forbidden from relying on force to settle their misunderstanding. Rights are not expected to be enforced by physical force. Neither the first accused and deceased are free from blame in what later ensued. Perhaps accused number two (who was s o me distance a w a y) might be said to have been defending his brother w ho w as being belaboured on the ground by the deceased w h en he hit deceased with a stone at the back of the head. This conclusion is possible although I am well aware that the action of the second accused can never be judged on the same footing as w h en the attack was directed towards him. T he reason being as Schreiner JA observed being: "in m a ny cases the intervening third party will be better able to ward off the danger without causing death to the assailant than if he were himself being assaulted. For he is in no danger of having his protective action hindered by the assailant." See R v M h l o n go 1960(4) Sa 5 74 at page 580. In this case accused number two could not in the circumstances have been sure that if he delayed in taking remedial or protective action deceased might finish off his brother w h om deceased w as belabouring on the ground. T he problem that the Court has to grapple with is that the deceased fell. First accused stood u p, staggered a little w h en he stood up and thereafter belaboured the deceased w ho w as on the ground. According to the doctor the injuries that w e re inflicted w e re so severe that immediate medical help might not have saved the deceased. Deceased, according to P W .3 and first accused, w as lying on the back. Accused n u m b er o ne delivered frontal blows on the deceased's head causing (according to the medical evidence) the deceased to have "a depressed fracture frontal region with compression of frontal brain". That being the case deceased w as not killed by the w o u nd at the occipital region which w as caused by the stone thrown by accused n u m b er two. There is no doubt in my m i nd that the deceased w as killed by the assault that accused n u m b er one admits having inflicted on the deceased. I reject the subtle suggestion in accused n u m b er one's evidence that it w as possible to cause such an injury while deceased w as standing and fighting. T he description of the fight, as given by P W .3 and P W . 6, s h o ws clearly that the deceased w as uninjured before he w as hit by accused n u m b er t w o, causing h im to fall. Thereafter accused n u m b er one proceeded to belabour deceased on the ground. Reluctantly I give accused n u m b er t wo the benefit of the doubt in respect of assaulting deceased while he w as on the ground. He certainly did not expeditiously stop the fight between deceased and accused n u m b er o ne as accused n u m b er t wo would have us believe. He certainly w as not afraid to approach the fallen deceased. There is a very great possibility that he also assaulted deceased. Unfortunately because of the nature of the C r o wn evidence, as given by P W .3 and P W . 6, I feel I have to give h im the benefit of the doubt. T he type of injuries and their nature do not support the assault as described by C r o wn witnesses. If they w e re telling the truth the injuries on deceased's b o dy would be far worse. In my view, the C r o wn has failed to prove that the first accused had the subjective intention to kill, or that he formed it during the fight. It seems to me that there is no material on which the first accused can be said to have intended to kill deceased w h en he closed deceased's normal access route. He w as harassing deceased and reducing deceased to despair but that does not m e an he intended to kill deceased. Accused n u m b er one w as determined to stop deceased by threat of force and actual force from passing through the land of the family of accused n u m b er one. Deceased initiated the actual physical attack on accused n u m b er one. After accused n u m b er one got up from the ground, after he had been hit with a sword, he must have been so angry and out of control that he inflicted the fatal w o u n ds on the deceased w h en deceased suddenly fell. I therefore c o me to the conclusion that accused w as so provoked that, in the circumstances, a reasonable m an w o u ld have lost his self-control. R v Tenpanyika 1958 (3) SA 7 at page 11. According to our C o m m on L aw for me to determine whether accused had formed the subjective intention to kill in a case such as this one should mentally try and project himself into the position of the accused at the time and guard against the subconscious influence of espost facto knowledge. See S v Mini 1963(3) SA 188 at 196. For subjective intention to kill to have been proved this must be the only possible inference that can be drawn. See S v Sigwahla 1967(4) SA 566 at 577. T he C r o wn has not proved that accused number one had the subjective intention to kill deceased. All the crown has done is to prove that such a possibility exists. That is not enough. I have found it unnecessary to go beyond the c o m m on law into the Criminal L aw (Homicide) Proclamation of 1959 and its extension of the scope of provocation in reducing intentional killing to culpable homicide in line with English L a w. In the light of the aforegoing, I find the first accused guilty of culpable homicide. T he second accused is given the benefit of the doubt and is consequently found not guilty and is discharged. My Assessors agree. Delivered at Maseru This D ay of M a y, 1994. W. C. M. MAQUTU ACTING JUDGE