R v Theko and Others (CRI/T 77 of 94) [1998] LSCA 25 (10 March 1998)

CRI/T/77/94 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: R EX v s. M O L I B O EA T H E KO & 7 O T H E RS J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice G . N. M o f o l o, on the 10th d ay of M a r c h. 1 9 9 8. T he a c c u s ed w e re c h a r g ed of the C r i me of M u r d er it b e i ng alleged that C o u nt I T he said a c c u s ed are c h a r g ed with the c r i me of m u r d e r. In that u p on or a b o ut the 2 5 th d ay of N o v e m b e r, 1 9 9 2, a nd at or near Ha Seeiso in the B e r ea district, the said a c c u s ed did e a ch or the other or all of t h e m, acting unlawfully a nd intentionally kill T L A LI M A Q O B E. C o u nt II T h at the said a c c u s ed are c h a r g ed w i th the c r i me of m u r d e r. In that u p on or a b o ut the 2 5 th d ay of N o v e m b e r, 1 9 9 2, a nd at or near Ha Seeiso in the district of B e r e a, the said a c c u s ed did e a ch or the other or all of t h e m, acting unlawfully intentionally kill N T S E B I S E NG M A S A K A L E. Count III T he said a c c u s ed are guilty of contravening Section 3 ( 2) of the Internal Security ( A r ms a nd A m m u n i t i o n) A c t, N o . l 7 of 1 9 6 6. In that u p on or a b o ut the 2 5 th d ay of N o v e m b e r, 1 9 9 2, a nd at or near Ha Seeiso in the district of B e r e a, the said a c c u s ed did e a ch or the other or all of t h em did h a ve in their possession a fire-arm to wit; 7.62 min L I AI (S. L. R.) Rifle Serial N u m b er AD 6 80 8 2 6 2, w i t h o ut h o l d i ng a fire-arm certificate in force at the time. All a c c u s ed b ad pleaded not guilty to the three (3) counts preferred against them. I am to mention that earlier there h ad b e en a preparatory examination a nd the Judicial Officer in charge of the proceedings h ad c o m m i t t ed all a c c u s ed for trial by this court. P . W .1 D / T p r. L i p h a p a ng ( P . W .8 at the P. E.) s w o rn h ad stated he w as stationed at M a p o t e ng police post. In 1 9 92 he w as stationed at Sefikeng Police Post. He k n ew accused persons a nd r e m e m b e r ed 25 N o v e m b e r, 1 9 92 a nd incidents of the day. He h ad b e en at w o rk at Sefikeng Police Post on 25 N o v e m b e r, 1 9 92 at 3 p.m. T wo m e s s e n g e rs h ad c o me to h im f r om M a s a k a l e 's a nd g a ve h im a letter. As a result of the report he h ad repaired to M o n n a m o h o l o 's plateau in c o m p a ny of other policemen. T h e re he h ad f o u nd t wo corpses. T he Chieftainess w as also present. He m et the Chieftainess w ho w as well k n o wn to h im a nd she h ad identified the corpses being those of Tlali a nd Ntsebiseng. He h ad e x a m i n ed the corpses a nd on o ne found an o p en w o u nd on the left thigh, there w as another w o u nd a b o ve the left ear. There w as bleeding t h o u gh the other w o u nd w h i ch w as an o p en o n e. T he s e c o nd corpse h ad an o p en w o u n d, it w as bleeding through nostrils he cannot r e m e m b er on w h i ch side of the b o dy it w a s. T he corpses h ad b e en c o n v e y ed to the mortuary a nd on the w ay h ad sustained no injuries. T he following d ay at 3.00 p.m. accused 1 had c o me saying he learned he w as w a n t ed by the police. He h ad w a r n ed accused telling h im he w as not obliged to say anything. He h ad then asked a c c u s ed 1 about the g un but a c c u s ed h ad preferred to remain silent. Accused 1 had nevertheless led the witness to his (accused 1) vehicle which w as parked outside the charge office. He had taken out the g un and given it to the witness. T he van h ad no cover. T he g un w as lying on the b a ck of the van. F r om behind the seat the accused had taken out the magazine but it w as empty. As he handed over these things to the witness, accused 1 wasn't saying anything. T he witness testified he had asked the accused w h at h a p p e n ed at ' M o n n a m o h o l o 's plateau but the accused had said his lawyer had said he w as to keep m u m. T h ey h ad then left the vehicle and gone to the charge office. T he witness said he asked accused w h at he had d o ne with the g un and accused said it w as the gun he used. He had then given accused a charge of Public Violence and locked h im up. Other accused w e re already locked up and he had questioned t h em o ne by o ne and as a result of the explanations accused 4 h ad given h im the h o m e m a de sword. A c c u s ed 4 had then accompanied h im to his h o me w h e re he produced a h o m e m a de s w o rd after digging it up from the kraal's comer. He had then taken the sword b a ck to the charge office. He had then filled up forms and surrendered the s w o rd and g un to the Clerk of Court. T he gun had then been sent to M a k o a n y a ne for ballistic tests. T he g un and s w o rd had been handed in and m a r k ed Exhibits 1 and 2. A c c u s ed 1 h ad been unable to produce a permit or licence for the g un and he h ad charged accused 1 for unlawful possession of the gun. He had informed accused he w as charging t h em of murder and not Public Violence. He had not attended post-mortem examination but it appeared the D r. w ho performed postmortem examination had left the country. He had served subpoenas on the Dr. but it seemed the Dr. w as not available. T he gun w as an " S L R" and not easily available; it w as used by policemen. It w as m o re powerful than the AK 47 - it h ad a longer range a nd h ad 20 rounds of a m m u n i t i o n. T he g un h ad t wo functions: it w as anti-rapid a nd automatic. It w as self-loading a nd he did not k n ow its country of origin. Cross-examined by M r. P h e ko for accused I the witness h ad testified he w as in fact an investigating officer. T he other investigating officer w as W a r r a nt Officer M a r a. W h en he g a ve evidence at the P. E. facts w e re fresh in his m i nd t h o u gh he could n ow r e m e m b er w h at h ad h a p p e n e d. He admitted things h ad by n ow g o ne by a nd it w as possible things he said in this court he h ad not m e n t i o n ed at the P. E. He says he h ad m a de a mistake to s ay he h ad not w a r n ed or cautioned a c c u s ed for he did. He agrees at the P. E. his evidences h ad b e en read to h im a nd he h ad a g r e ed it w as a reflection of his testimony. He agrees t h o u gh a c c u s ed 1 h ad preferred to maintain his silence he h ad nevertheless persisted accused 1 give h im an explanation a nd says it is b e c a u se he w a n t ed a c c u s ed I to clarify certain issues regarding the gun. Put to h im he h ad not said to a c c u s ed 1 e v en t h o u gh an explanation w as required f r om accused 1 the latter w as not obliged to say anything, he agrees saying it is b e c a u se a c c u s ed 1 w as silent on other issues. He says according to h im the charge w as Public Violence. T he witness says he h as not seen the g un ' S L R' sold to m e m b e rs of the public t h o u gh he h ad expected accused 1 to h a ve a licence for the g un b e c a u se to h a ve a g un o ne n e e d ed to h a ve a licence. A c c u s ed I h ad said he h ad b o u g ht the g u n. T h at a c c u s ed 1 did not h a ve a licence is the basis on w h i ch he c h a r g ed a c c u s ed I for unlawful possession of the firearm. Put to the witness a c c u s ed c h a r g ed b e c a u se he volunteered to bring the g un to the police a nd b e c a u se a c c u s ed 1 did not h a ve a licence, the w i t n e ss s a ys a c c u s ed w as c h a r g ed f o l l o w i ng an e x p l a n a t i on he g a v e. T he witness denies a c c u s ed w as n ot g i v en a w a r n i n g. T he w i t n e ss d e n i es a c c u s ed I w as interrogated by three investigating officers for it w as h im w ho q u e s t i o n ed a c c u s ed I. He disagrees that S o j a ne a nd K a b a ne w e re aggressive in interrogating a c c u s ed I. He d e n i es a c c u s ed I said he w as n ot p r e p a r ed to s ay a n y t h i ng b e c a u se his interrogators w e re harsh. C r o s s - e x a m i n ed by M r. K h a u o e, a s k ed w hy he g a ve a c c u s ed a c h a r ge of Public V i o l e n ce the w i t n e ss s a ys there w e re t wo or ten p e o p le i n v o l v ed in the v i o l e n ce - after all there w as e v i d e n ce that M a s a k a l e 's & Seeiso's p e o p le w e re fighting a nd this a m o u n t ed to Public Violence. He s a ys in Public V i o l e n ce only o ne side c an be c h a r g ed a nd if n e e d 's be the other side c an later be c h a r g e d. He s a ys in Public V i o l e n ce there are a l w a ys t wo sides b o th guilty. He a g r e es he c o - o p e r a t ed with M a s a k a l e 's p e o p le b e c a u se there w e re t wo p e o p le d e ad f r om M a s a k a l e ' s. He d o es n ot d e ny the suggestion that M a s a k a l e 's p e o p le attacked as s u g g e s t ed by accused. T he witness says he doesn't k n ow w h e t h er there's a b o u n d a ry before o ne gets to M o n n a m o h o l o 's plateau. He a g r e es s o me of the a c c u s ed p e r s o ns w e re injured on 25 N o v e m b e r, 1 9 92 a nd h e n ce w hy he issued m e d i c al f o r ms to s o me accused. T h e se p e o p le h ad i n f o r m ed h im t h ey w e re injured by M a s a k a l e 's p e o p l e. As to w hy he h ad taken full three years before the matter c a me to court he s a ys there is no time limit to an investigation. A c c u s ed p e r s o ns h ad n ot b e en arrested by h i m. He did not k n ow w h e t h er a c c u s ed in C o u nt I c a me f r om M a s a k a l e ' s. He says he did not inquire as to the relationship b e t w e en a c c u s ed 1 a nd a c c u s ed 4. He d e n i es he arrested a c c u s ed 4 for he d o es not k n ow w ho arrested a c c u s ed 4. He h ad m et a c c u s ed I at the charge office a nd could not say w ho arrested h im n or d o es he k n ow w ho arrested accused 2, 3, 6, 7 and 8. He could not say w ho arrested the accused persons except accused 1 w ho had handed himself over to him. He says he is not aware that before the magistrate at the P. E. he said he g a ve accused 4 a charge. He denies he singed accused 2's beard and denies he arrested accused 3, 4, 5, 6, 7 and 8. He had not m et accused persons on 25th N o v e m b e r, 1 9 9 2; on 26th N o v e m b e r, 1 9 92 he had m et accused 4 at Sefikeng Police Post already arrested. He agrees during arrests there w as no chiefs messenger. He denies it w as accused 5 and not accused 4 w ho produced the sword; he also denies accused 4 produced the s w o rd on being assaulted. He denies deceased in C o u nt 1 c o m es from M a k o t o k o 's for he c o m es from Masakale's. He denies accused 7 is a herdboy. He says he cannot say whether accused persons w e re attacked. A c c u s ed 4 said fighting erupted w h en he w as herding, cattle. He doesn't k n ow w h e re Tlali w as buried. No cross-examination by M r. Fosa. No re-examination by M r. L e n o n o. Assessor 1: T he Chief of Masakale falls under the chief of Seeiso's. T he area w as in dispute. Police had said it w as to be closed for grazing. Assessor 11: W h en fighting took place he had found nothing but corpses. He had seen no fractures or anything foreign. He says the purpose of cautioning a suspect is to inform him of his rights. P . W .2 W a r r a nt Officer M a ra ( P . W .9 at the P. E.) s w o rn stated he w as an officer in the R . L . M . P. stationed at T e y a t e y a n e n g. B e f o re t h en he w as stationed at Sefikeng Police Post as a c o m m a n d i ng officer in 1 9 9 2. He s a ys he r e m e m b e rs w h at o c c u r r ed at T h a b a - B o s iu on 2 5 th N o v e m b e r, 1 9 9 2. He s a ys the Chieftainess 'Malireko M a s a k a le the Chieftainess of M a s a k a le m a de a report at S e f i k e ng Police Post. He k n ew P . W . I herein a nd h ad a c c o m p a n i ed h im to a place called M o n n a m o h o l o 's plateau a nd there t h ey h ad f o u nd m a ny p e o p l e. T h ey w e re c r o w d i ng there w a t c h i ng o v er d e ad b o d i e s. He w as not able to identify t h o se p e o p l e. He h ad a s k ed P . W . I w ho w as c o m m a n d i ng the C. I. D. to e x a m i ne the c o r p s e s. He c o u ld not r e m e m b er if the Chieftainess w as present o w i ng to the c o n c o u r se a s s e m b l ed there. He h ad before s e en a c c u s ed p e r s o ns b e f o re court. P e o p le present w e re M a s a k a l e 's a nd Seeiso's. F i ve e m p ty shells h ad b e en f o u nd by different p e o p l e. T h ey w e re 7.62 calibre bullets. He h ad t a k en all the e m p ty shells a nd p r o c e e d ed to Seeiso's. T h ey h ad f o u nd all a c c u s ed p e r s o ns e x c e pt a c c u s ed 1. T he chief of T h a b a - B o s iu h ad introduced a c c u s ed p e r s o ns to t h em a nd they h ad a s k ed for explanations f r om t h em t h o u gh these w e re n ot recorded. A c c u s ed p e r s o ns h ad b e en c h a r g ed a nd released. He sees the w e a p o ns a nd shells w h i ch are similar to the o n es he f o u nd on the s c e n e. T h ey h ad b e en sent to M a k o a n y e ne for ballistic tests. T h ey w e re " S L R' rifle cartridges. ' S L R' u s ed 7,65 bullets. T he bullets h ad not b e en put in a plastic b ag by h i m. R e t u r n i ng to h im they w e re kept by the a r m o u r er in the T e y a t e y a n e ng a r m o u r y. T h ey h ad b e en p r o d u c ed at the P. E. a nd f r om the a r m o u r er they h ad c o me to h i m. He h ad p r o d u c ed t h em as exhibits a nd w e re m a r k ed E x h. 3. He s a ys the g un is an ' S L R' a nd did not k n ow its c o u n t ry of origin. It w as u s ed by the police a nd the military. ' S L R' s t o od for Self-Loading Rifle. It did not u se a u t o m a t ic but rapid; an a u t o m a t ic w e a p on o n ce y ou pull the trigger it shoots endlessly; as for r a n g e, it d e p e n d ed on setting; b ut c an go up to 2 00 m e t r e s. C r o s s - e x a m i n ed by M r. P h e ko he s a ys he h ad h a n d ed the shells to the magistrate a nd agrees they w e re not given distinguishing identification m a r k s. T h is w as s u p p o s ed to h a ve b e en d o n e. He could therefore n ot s ay w h e t h er they w e re the o n es f o u nd on the s c e ne n or c an he s ay t h ey are the o n es sent to M a k o a n y a ne for ballistic tests. At the P . E. the shells w e re n ot in his p o s s e s s i o n. B e f o re the P . E. they w e re in the h a n ds of the a r m o u r e r. T h o se he h a n d ed in at the P . E. he can't s ay they are the s a me o n es he h as h a n d ed in before the court. He can't s ay w ho sent the shells to M a k o a n y a n e. C r o s s - e x a m i n ed by M r. K h a u oe the witness s a ys he k n o ws a c c u s ed 5 by sight a nd can't s ay w ho he is. He can't s ay w ho arrested h i m. All a c c u s ed e x c e pt a c c u s ed 1 h ad b e en arrested together. He c o u ld n ot s ay w h e t h er a c c u s ed 5 w as present at chief Seeiso's. Lt. M o f o lo w as the officer in c h a r ge w h en t h ey w e re at Seeiso's. W h en Lt. M o f o lo c a me police w e re already at the s c e ne of the c r i m e. Lt. M o f o l o 's g r o up arrived shortly after their g r o up h ad g ot to the s c e n e. T h at the t wo g r o u ps arrived at the s a me t i me w as not true. At the P . E. he h ad said he w e nt to the s c e ne with Lt. M o f o l o, L i p h a p a ng ( P . W . 1) a nd m a ny other police officers. He s a ys he w a s n 't lying w h en he said this. By w e' he h ad m e a nt the police w i th w h om he w as a nd particularly L i p h a p a ng ( P . W . 1 ). L i p h a p a ng ( P . W . 1) w as o ne of t h o se w ho f o u nd the shells. He w as surprised L i p h a p a ng ( P . W . 1) h ad said he f o u nd the b o d i es only - it w as hardly surprising for he is o ne of t h o se w ho f o u nd the shells t h o u gh he could not say w h i c h. He could not s ay the shell before court w as the o ne he f o u n d. T he calibre of the shell w as ' S L R' - it is 7.62 calibre. 7.62 shell fitted ' S L R' only. He says at the b a ck of e a ch bullet the calibre is inscribed. A 7.62 calibre shell c an be e x p e c t ed to be inscribed. On the shells is ' F N M' a nd there is also no 7.62. T he witness d o es not d e ny that a c c u s ed 5 w as n ot on the s c e n e, or that he w as arrested on 2 5 th N o v e m b e r, 1 9 9 2. He s a ys on 2 5 th N o v e m b e r, 1 9 92 a c c u s ed 4 did s ay he w as h e r d i ng cattle. He c o u ld n ot r e m e m b er w i th w h om a c c u s ed 4 said he w as h e r d i ng cattle. It w as true it w as said M a s a k a le p e o p le c a me to Seeiso's p e o p l e. He c o u ld not r e m e m b er w h e t h er a c c u s ed 4 said M a s a k a l e 's p e o p le started the fighting. C r o s s - e x a m i n ed by M r. F o sa he s a ys he c o u ld n ot s ay w h om he arrested or did not arrest. He could not s ay w h e t h er he arrested a c c u s ed 6 personally. He s a ys he d o es n ot r e m e m b er talking to a c c u s ed 6.. No re-examination by M r. L e n o n o. A s s e s s or 1: He s a ys d e c e a s ed p e r s o ns w e re neither caretakers or rangers. N e i t h er villagers h ad the right to g r a ze at M o n n a m o h o l o 's plateau. A s s e s s or 11: He did n ot k n ow the serial n u m b er of the rifle s a ve that it is called ' S L R' T h e re w e re other self-loading rifles but they w e re shorter bullets u s ed for " S L R" bullets u s ed on " F N" rifles. Shells f r om M a k o a n y a ne w e re labelled in a plastic b a g. By C o u r t: He said the p r e v i o us d ay he h ad said 7.62 shells w e re u s ed w i th " S L R" only. He s a ys he w as w r o ng for t h ey c an also be u s ed on " F N" rifles. By M r. F o sa t h r o u gh the court he s a ys he w as a b le to identify the shells b e c a u se f r om M a k o a n y a ne they w e re labelled in a plastic b a g. W h en t h ey left h im they w e re in toilet paper. He k n ew nothing a b o ut the label s h o wn h i m. He h ad n ot e x p e c t ed the bullets to return in a toilet p a p er - it d e p e n d ed on a p e r s on w ho received t h em in w h at p a p er to w r ap t h e m. In a n s w er to M r. L e n o no arising f r om courts' questions: He s a ys he g a ve the bullets to M r. M o t e b e l e; t h ey w e re in a toilet p a p er w r a p p ed separately b ut in a c o m p o s i te form. He says he u s ed a toilet p a p er b e c a u se it helps preserve i t e ms f r om b e i ng scratched a nd he w as protecting w h e re the stricker p in strikes. P . W. 3 T a e lo M a s a k a le ( P . W .7 at the P. E.) s w o rn testified he w as literate. D e c e a s ed w ho w as killed on 25 N o v e m b e r, 1 9 92 w as his y o u n g er brother. On 25 N o v e m b e r, 1 9 92 he w as h e r d i ng goats at T h a b a n e ng Falls u n d er M a s a k a l e ' s. As he w as h e r d i ng he s aw cattle b e i ng driven f r om w h e re t h ey w e re g r a z i ng at M o n n a m o h o l o ' s. H a v i ng c r o s s ed the s t r e am at H l a c h a n e ng he h ad s e en p e o p le standing on a hillock at H l a c h a n e n g. As he w as far a w ay he c o u ld not identify the people. As the cattle w e re driven across the stream, there w e re p e o p le w ho c r o s s ed the s t r e am with the cattle. As he w as h e r d i ng he s aw cattle b e i ng driven a nd h e r d b o ys w e re already fleeing. He did not recognise a ny of the p e o p le w ho w e re driving the cattle. He h ad not got a ny w h e re nearer. Cattle w e re driven by m a ny p e o p l e. Seeiso's cattle h ad r e m a i n ed w h e re they w e re a nd Seeiso's m en h ad g o ne up the fields a nd s t o p p ed M a s a k a l e 's p e o p le frontally. It a p p e a rs as if b o th g r o u ps h ad r u s h ed at e a ch other a nd he h ad heard a g un report twice. M a s a k a l e 's m en h ad fled. M a s a k a l e 's p e o p le h ad returned to w h e re the t wo g r o u ps m et a nd a g un h ad s o u n d ed t w i ce a nd M a s a k a l e 's p e o p le h ad fled. T wo p e o p le h ad v e n t u r ed f o r w a rd s t o od there for a while, he doesn't k n ow w h at for M a s a k a l e 's m en h ad g o ne to the spot b ut o ne of t h em h ad run t o w a r ds the village. He h ad g o ne to w h e re these p e o p le w e re a nd f o u nd Ntsibiseng M a s a k a le a nd Tlali M a q o be c o v e r ed in blankets. T h ey w e re already dead. He h ad seen injuries on t h em on police arrival. He h ad r i d d en a h o r se to the police post at Sefikeng. W h en police arrived N t s i b i s e ng M a s a k a le h ad a w o u nd on his collarbone - it w as b l e e d i ng a nd Tlali h ad a w o u nd on his right thigh a nd on his h e ad on the side of the h e ad t o w a r ds the n e ck on the occipital b o n e. He h ad f o u nd a shell. O t h er shells w e re f o u nd by other p e o p le a nd Seeiso's m en h ad already fled. He h ad seen t h em flee f r om the scene. T he police h ad t a k en d e c e a s ed in a vehicle. He w a s n 't in the vehicle. He h ad signed for Ntsibiseng's c o r p se for it w as his. After the D r. did a p o s t m o r t em report the b o dy w as released. T he w i t n e ss further testified he k n ew s o me of the a c c u s ed p e r s o ns n a m e l y, A c c u s ed 1, 2 a nd 3. He h ad k n o wn t h em for a l o ng time. A c c u s ed 1 w as not h e r d i ng stock. A c c u s ed 3 u s ed to t h o u gh he c o u ld n ot s ay he w as h e r d i ng at the time. He h ad h e a rd the s o u nd of g u ns t h o u gh he h ad not s e en a n y b o dy h o l d i ng a g u n. He agrees he h ad given e v i d e n ce at the P. E. a nd that there his e v i d e n ce w as short a nd that he h ad said he h e a rd the s o u nd of a g u n. He h ad not told the magistrate the c i r c u m s t a n c es u n d er w h i ch he h e a rd the g un report. He s a ys he m e r e ly said he heard a g un report following c o m m o t i o n. He further s a ys at the P. E. he h ad said he h ad b e en told the p e o p le c a me f r om Seeiso's. If he h ad said w r o ng things or left out s o me it w as for the court to b e ar with h i m. He says at the P. E. he w as confused. He says t h o u gh there w e re t wo contradictory versions he w as nevertheless telling the truth. He says he did not understand w h at w as b e i ng said. He says he n ow r e m e m b e rs for he heard a g un report t h o u gh he wasn't on the scene. He h ad not told the magistrate circumstances u n d er w h i ch he h ad h e a rd the g un report. He h ad not told the magistrate a b o ut the driven cattle. T he magistrate h ad said he w as to lead himself in evidence. At the P. E. he h ad not said he s aw the t wo g r o u ps approaching. He agrees he hid m a ny things f r om the magistrate by reason of not k n o w i ng w h at w as expected f r om h i m. M a s a k a l e 's a nd Seeiso's cattle w e re at M o n n a m o h o l o 's - they w e re as far as the traffic circle f r om the court - a b o ut 1½ km a w ay a nd w e re overlooking him. A l t h o u gh the cattle w e re c o n v e r g i ng a b o ut the s a me time a nd w e re coining in batches, he could not say f r om w h i ch particular kraal they c a me but cattle f r om M a s a k a l e 's a nd Seeiso's w e re arriving intermittently f r om both sides. Cattle m u st cross Liqalaneng a nd again a stream f r om T s i m o k h o l o. This w as h ow he w as able to identify Seeiso's cattle. He says he w as not concluding that b e c a u se cattle c a me f r om Seeiso's therefore the cattle w e re Seeiso's but b e c a u se cattle f r om Seeiso's w e re c o n v e r g i ng on cattle already grazing. He says Seeiso's a nd M a s a k a l e 's area is divided by arable land a nd w h e re cattle w o u ld h a ve m et at Seeiso's field they did not m e et for they h ad diverted a nd g o ne into other fields. A c c o r d i ng to the witness, f r om S e h l a c h a n e ng to M o n n a m o h o l o 's o ne m u st cross a stream. W h en M a s a k a l e 's p e o p le gathered on the plateau they h ad crossed the stream. M a s a k a l e 's people w e re f r om their cattle. T h ey w e re far f r om h im a nd he could not say w ho h ad g o ne w i th the cattle. Tlali a nd N t s i b i s e ng w e re a m o n g st M a s a k a l e 's p e o p l e. Tlali a nd Ntsibiseng a c c o r d i ng to his e v i d e n ce w e re f r om the cattle. He c o u ld not see w h e t h er the p e o p le h ad increased for they c a me f r om an o b s c u re angle. No p e o p le gathered at H l a c h a n e ng for he w o u ld h a ve s e en t h e m. He d e n i es Tlali a nd N t s i b i s e ng w e re a m o n g st m en gathering at H l a c h a n e n g. H l a c h a n e ng w as on M a s a k a l e 's side. T he people he h ad b e en referring to g a ve their b a c ks to the cattle g o i ng in the direction in w h i ch S e e i s o 's cattle w e re g o i ng - the direction they t o ok w as t o w a r ds their h o m e. T h ey w e re g o i ng t o w a r ds M a k o p o ng - it w as not in M a s a k a l e 's direction. He c a n n ot d e ny that M a s a k a l e 's p e o p le w e re a r m ed with s w o r ds a nd sticks. P ut to h im there w as no n e ed for M a s a k a l e 's p e o p le to leave cattle a nd go t o w a r ds M a k o p o n g, he s a ys he does't k n ow w h at for they w e nt to M a k o p o n g. P ut to h im there will be e v i d e n ce M a s a k a l e 's p e o p le w e nt to S e e i s o 's p e o p l e , he s a ys w h i le he w as there he did n ot notice this. He s a ys M a s a k a l e 's p e o p le w e re g o i ng uphill t o w a r ds H l a c h a n e ng stream. T h ey h ad crossed the s t r e am at H l a c h a n e ng crescent, t h o u gh to cross the river o ne d o es not h a ve to go downhill. F r om w h e re M a s a k a l e 's p e o p le w e re to the river o ne g o es d o w n. T h ey w e re g o i ng up t o w a r ds M a k o p o ng h a v i ng c r o s s ed the river a b o v e. Seeiso's m en w e re on the opposite side of H l a c h a n e n g. H l a c h a n e ng a nd Seeiso's are situated on the s a me side of the river. He a g r e es he c o u ld not s ee p e o p le f r om H l a c h a n e n g. He can't d e ny w h e t h er Seeiso's p e o p le w e re h e a r d b o ys e x c e pt t w o. Put to h im there will be e v i d e n ce they did n ot c h a se h e r d b o ys or expelled t h e m, he s a ys e v en if they d e ny that is w h at h a p p e n e d. H l a c h a n e ng w as in v i ew of w h e re M a s a k a l e 's people crossed. He denies w h en M a s a k a l e 's p e o p le e m e r g ed they w e re going to w h e re Seeiso's people w e r e. He s a ys w h at he m e a nt w as that on crossing the river t o w a r ds their cattle Seeiso's m en intercepted M a s a k a l e 's m e n. He denies Seeiso's people didn't go towards Masakale's people and denies the reverse proposition. That Seeiso's people threw stones he says he s aw a m a le w ho threw the stone, though he cannot say w ho started the r u m p u s. He denies Seeiso's m en ran a w ay with their cattle. He says after Seeiso's m en had stopped Masakale's m en both factions had engaged each other though he does not k n ow w ho threw stones for he had heard a gunshot and as to h ow m a ny times he could not tell. He says M o n n a m o h o l o 's w as never in dispute. He says the area in dispute is T h a b a n e ng towards the pass - it is Thabaneng and Khohlong. He says w h e re the cattle w e re the area w as not in dispute. He says it is w h e re cattle from Seeiso's w e re i m p o u n d ed by Masakale's i.e. at M o n n a m o h o l o ' s. He denies at M o n n a m o h o l o 's is w h e re there w as fighting previously and a person had died as a result. N o b o dy h ad died in the area in dispute. T he witness w e nt on to testify that in 1990 he w as not at h o me but in hospital w h e re he took five months. His brother the deceased w as not a herdboy nor does he k n ow whether he had a sword. He does not k n ow whether Tlali w as a Russian. Tlali c a me from Masakale's village. That there will be evidence he does not c o me from Masakale's he says such evidence will not be true. Cross-examined by M r. K h a u oe the witness says he is not sure w h at time it w as w h en the commotion erupted but it could be about 11.00 - 12.00 noon. He says he is not certain whether he had given evidence before lunch. He says at h o me as to what time it is they are guided by s h a d o w s. He denies fighting erupted at about 3.00 p.m. because w h en he c a me to the scene it w as not 3.00 p.m. as guided by s h a d o ws or shades. He could not say h ow m a ny people had gathered at S e h l a c h a n e ng n or c an he s ay h ow m a ny e a ch c a me f r om M a s a k a l e 's a nd Seeiso's. He says his v i ew w as obstructed by b u s h e s. He s a ys he has eyesight p r o b l em a nd c an only see as far as the stage. He also says he c an see a p e r s on as far as the circle i.e. facing the Catholic Cathedral. He s a ys t h o u gh he said he h ad s i g n ed for the b o dy of his d e c e a s ed brother, actually he could not r e m e m b er w h e t h er he w as a s k ed to sign for the b o dy for he w as c o n f u s e d. He s a ys he d o es n ot r e m e m b er w h e t h er his testimony w as read b a ck to h im for his m e m o ry fails h i m. He s a ys he k n ew the p e o p le w e re Seeiso's for the cattle c a me f r om Seeiso's. He s a ys f r om w h e re he w as he c o u ld s ee a p e r s on on a forecourt at Seeiso's. He s a ys Tlali w as buried at M a i m a n e 's his uncle h a v i ng disputed the b o d y. Tlali's n o r m al residence w as at M a i m a n e 's but h ad left a nd stayed at M a s a k a l e ' s. H is true s u r n a me w as M a s a k a le T s e h la b e i ng his m o t h e r 's m a i d en s u r n a m e. Actually Tlali w as Tlali M a q o b e. C r o s s - e x a m i n ed by M r. F o sa the w i t n e ss testified he forgets but k e e ps on r e m e m b e r i ng b e c a u se the court k e e ps on r e m i n d i ng h i m. He s a ys S e e e i s o 's p e o p le w e re f r om fields on the left as y ou go to S e h l a c h a n e n g. T h e se w e re all M a s a k a l e 's fields. He h ad s e en p e o p le s w a y i ng this w ay a nd that but c o u ld n ot s ay w h e t h er they w e re using stones or sticks. R e - e x a m i n ed by M r. L e n o no the w i t n e ss testified he did not s ee N t s i b i s e ng w h en he w e nt to the veldt n or c an he s ay w h e t h er he w as a r m e d. P . W .4 T h a bo M a q o k e la ( P . W .1 at the R E .) s w o rn h ad testified he w as P W .1 at the P. E. a nd lived at M a s a k a l e ' s. Seeiso w as a W a rd C h i ef a nd M a s a k a le fell u n d er Seeiso's jurisdiction. He k n ew a c c u s ed p e r s o n s. T h ey c a me f r om Seeiso's. He also k n ew d e c e a s ed p e r s o ns in the case. D e c e a s ed h ad resided at M a s a k a l e ' s. On the fateful d ay he w as at M a s a k a l e ' s. T a n k i so S e k h a mi h ad c o me to h im a nd m a de a report in the p r e s e n ce of s o m e o ne a nd he h ad p r o c e e d ed to w h e re it w as claimed there w as fighting taking place. He h ad g o ne to M o n n a m o h o l o 's plateau. He h ad found s o me p e o p le on the w a y. He w as in c o m p a ny of M a s a k a le M a s a k a l e. On the w ay he f o u nd Tlali M a q o b e, Ntsibiseng M a s a k a l e, M a t l a ma L e p e k o la a nd M o f o ka M a s a k a l e; he h ad forgotten another n a m e. T h ey h ad p r o c e e d ed to H l a c h a n e ng plateau. T h e re they h ad f o u nd b o ys seated a nd w e re f r om M a s a k a l e ' s. Tšitawas o ne of M a s a k a l e 's m e n. He h ad s e en Seeiso's cattle a nd the h e a r d b o y s. He h ad g o ne to the p e r s on w ho called h i m. T h ey h ad m o v ed in a direction a w ay f r om the cattle t o w a r ds H l a c h a n e n g. N e ar Seeiso's p e o p le they h ad h e a rd the s o u nd of a g un a nd they h ad fled. T he g un report h ad c o me f r om Seeiso's p e o p l e. T h ey b oy h ad also p r o c e e d ed in the discretion of Tsita. W h en he h e a rd the g un report his party w as nearer Tšitaand so w as Seeiso's g r o u p. He says up to the t i me the g un report w as heard, there h ad b e en no c o m m u n i c a t i on b e t w e en Seeiso's p e o p le a nd M a s a k a l e 's people. He says he s aw the g un w h en it m a de a flash. He s a ys he s aw w ho w as holding the g un i.e. M o l i b o ea T h e ko ( a c c u s ed 1). He noticed that Tlali M a q o be h ad b e en shot for he h ad s e en b l o od on his thigh. He h ad also s e en s o m e t h i ng w h en they returned to the s c e n e. T h ey h ad fled w h en they s aw Tlali M a q o be shot but they h ad returned to give h im assistance. W h en they h e a rd the g un report Tlali M a q o be w as about 10 p a c es a w a y. T h at he w as shot he h ad s e en b l o od a nd he w as unable to w a l k; he w as leaning on his stick. After the g u n s h ot Seeiso's m en h ad t h r o wn stones at t h em a nd they h ad d o ne the s a m e. D u r i ng the stone throwing Ntsibiseng Phohleli or M a s a k a le w as shot. He says at the t i me of shooting stone throwing w as in progress. He h ad seen w h en Ntsibiseng Phohleli or M a s a k a le w as shot. W h en he fell t h ey h ad fled. W h en N t s i b i s e ng fell Tlali w as leaning on his stick. L e fu Sefali ( a c c u s ed 2) h ad t h en c o me w i th his s w o rd a nd struck Tlali with it a nd Tlali h ad fallen d o w n. He h ad s e en h ow a c c u s ed 2 h e ld the s w o rd - he w as h o l d i ng it up (as indicated) a nd a c c u s ed 2 c a me r u n n i ng to Tlali - he h ad n ot heard a c c u s ed 2 s ay anything. Tlali h ad fallen a nd as he did so M o t h i b e li ( a c c u s ed 4) hit Tlali with a stone b e l ow the breast. W h en Tlali w as shot he h ad d o ne n o t h i ng to a c c u s ed 1; w h en Tlali w as struck w i th a s w o rd he h ad d o ne n o t h i ng to a c c u s ed 2, either. After N t s i b i s e ng w as shot M a s a k a l e 's m en h ad fled a nd Seeiso's p e o p le h ad left the d e c e a s ed behind. He w as o ne of M a s a k a l e 's p e o p le w ho returned to the scene. T h ey h ad i b u nd Ntsibiseng d e ad while Tlali w as alive. He h ad s e en injuries on b o th of t h e m. N t s i b i s e ng h ad a bullet w o u ld on the collarbone. T h e re w as no other injury. Tlali h ad sustained a g u n s h ot w o u ld on his thigh; there w as a n o t h er w o u nd on the left h a nd side of the h e ad a b o ve the left ear a nd an a b r a s i on on the leftside of the breast. Seeiso's m en w e re M o l i b o ea T h e ko ( a c c u s ed 1 ), L e fu Sefali ( a c c u s ed 2 ); R a l i n eo ( a c c u s ed 3 ), M o t h i b e li ( a c c u s ed 4 ), M o h l o lo ( a c c u s ed 5 ), B a h o lo ( a c c u s ed 6 ), S e c h a c he ( a c c u s ed 7) a nd T s e p i so ( a c c u s ed 8) - all of t h em w e re b e f o re court. T he w i t n e ss testified there w as no explanation for the fighting. He h ad then left w i th M a s a k a le a nd M a t l a ma for the Police P o st at S e f i k e ng to report to the police that Seeiso's m en h ad killed M a s a k a l e 's p e o p l e. W h en t h ey returned to the scene Ntsibiseng w as d e ad a nd Tlali w as still alive. Tlali h ad died b e f o re t h ey w e nt to the police to report. B e f o re Tlali d i ed he said we w e re to give h im his hat a nd c o v er his face. W h en t h ey u n c o v e r ed h im t h ey f o u nd he h ad died. W h en they c a me to the scene with police these w e re d e ad already. T h ey h ad f o u nd s o me shells t h o u gh t h ey h ad n ot c o u n t ed t h em t h ey g a ve t h em to the police. W h en a c c u s ed 1 shot he w as b e h i nd his g r o up b ut a l o n g s i de it. T he g un w as n ot h i d d en a nd e v e r y b o dy c o u ld see it - h e n ce w hy he s aw it. He s e es the exhibits b e f o re court. He s a ys the rifle is similar to the o ne he s aw w i th a c c u s ed 1 a nd the s w o rd is similar to the o ne a c c u s ed 2 struck Tlali with. He s a ys the shells are also similar to the o n es they g a ve to the police. He h ad h e a rd t wo g un reports t h o u gh he c a n n ot s ay h ow m a ny times thereafter the g un s o u n d ed for they w e re already in flight. T he w i t n e ss testified there w as nothing w h i ch M a s a k a l e 's p e o p le h ad d o ne to p r o v o ke S e e i s o 's p e o p le into the tragic e v e n ts of the d a y. T he p l a ce w h e re the s h o o t i ng t o ok p l a ce w as n ot in dispute. He s a ys the p l a ce w h e re the s h o o t i ng t o ok p l a ce falls u n d er M a s a k a l e 's a nd is called M o n n a m o h o l o ' s. T he witness says on 25 N o v e m b e r, 1 9 92 the a c c u s ed h ad g o ne out w i th the cattle t h o u gh they are not h e r d b o y s. He c o u ld n ot s ay w h at for the a c c u s ed w e re there. S e e i s o 's cattle h ad b e en i m p o u n d ed by his people. T he o w n e rs h ad g o ne to the police w ho said the area w as to be o p e n ed for c o m m on grazing until the matter w as resolved. Thereafter their cattle h ad g o ne g r a z i ng a nd Seeiso's p e o p le h ad expelled their h e r d b o y s. T he w i t n e ss testified w h en he w e nt to his b o ys it w as to find out w hy his h e r d b o ys h ad b e en driven a w ay a nd after satisfying h i m s e lf of the e x p u l s i on w as g o i ng to a sk S e e i s o 's p e o p le w hy the b o ys h ad b e en c h a s ed a w a y. He w as n ot a r m ed a nd his colleagues h ad sticks. C r o s s - e x a m i n ed by M r. P h e ko the w i t n e ss testified w h en he s a ys S e e i s o 's m en c h a s ed their h e r d b o ys it is b e c a u se he h ad b e en told this by T a n k i so a nd his object w as to find out w h e t h er that w as true; on the w ay he h ad m et others a nd he did k n ow w h at they w e re g o i ng to do for they g a ve an explanation. He d e n i es instead of g o i ng to Seeiso's they g a t h e r ed at H l a c h a n e ng for t h ey p r o c e e d ed to the h e r d b o ys to ascertain f r om t h em w h at h ad h a p p e n e d. He says they did not gather at H l a c h a n e ng T he witness testified w h en they left the c h i e fs court he w a s n 't a w a re there w as friction b e t w e en Seeiso's a nd M a s a k a l e 's p e o p le t h o u gh he k n ew m e re w as the grazing dispute. He says he did not say there w as s o me fighting a nd cattle h ad b e en i m p o u n d e d. He denies he h ad said at the P. E. there w as s o me fighting though he admits the rest of the last paragraph at p.4. He says w h en he says no fighting t o ok place he is referring to a period w h en Seeiso's cattle w e re i m p o u n d e d. He says he is not able to say w h e t h er or not there w as fighting for he w as in Kimberley. He says the police h ad intervened a nd ordered t h em to o p en the area f o r c o m m on grazing. He says his people h ad not fought Seeiso's p e o p le on the T u e s d a y. T he fighting h ad taken place on the W e d n e s d a y. T h ey h ad g o ne to H l a c h a n e ng plateau w h e re the b o ys w e r e. E x c e pt the o n es he h ad m e n t i o n ed there w e re no other people. He h ad not seen a g r o up f r om the village. T h ey w e re not a r m ed with s w o r ds though s o me people carried sticks. He says he h ad also carried a stick; he says n o ne of their g r o up carried a firearm. He says a stone hit Tlali while he w as standing. He denies they a d v a n c ed on Seeiso's m e n. He denies there w e re three g un reports f r om his g r o up b e c a u se they h ad not a d v a n c ed on Seeiso's m e n. He says there w e re no three g un reports before Tlali w as shot. He says Seeiso's group w as larger than theirs a nd the former fired. He says his g r o up h ad not got to Tsita. He says on approaching Tsita, Tlali w as in front a nd it w as w h en they w e re c o m i ng nearer Seeiso's people. He denies w h en Tlali w as shot he w as closing on Seeiso's people nor had the shooting occurred some short distance from where Tšita was. He denies shooting took place after his group had chased Seeiso's group a w a y. He denies the shooting t o ok place during stone throwing. He say she d o es not k n ow whether Seeiso's people w e re injured. He denies a c c u s ed 1 t o ok the g un f r om his group. He s a ys w h en they returned to assist Tlali t h ey h ad t h r o wn stones a nd it w as at this t i me that N t s i b i s e ng w as shot; he w as n ot t h r o w i ng stones but racing t o w a r ds Tlali. As Ntsibiseng raised his stick his g r o up w e re t h r o w i ng stones t o w a r ds Seeiso's g r o u p. He s a ys they w e re g o i ng to S e e i s o 's p e o p le to find o ut w hy they w e re not allowing their cattle to graze. T h ey h ad g o ne to Tšitato find o ut w hy he h ad called t h em a nd after the fighting t h ey h ad m et a nd t h ey did n ot k n ow w hy he called t h e m. He disagrees to the suggestion that the t wo p e o p le w e re shot in self-defence. He s a ys w h en N t s i b i s e ng w as shot he w as b e h i nd Tlali s a y, 4 -5 p a c es a w a y. O t h er t h an Tlali his g r o up w as closer. He s a ys he also t h r ew stones. He a g r e es his g r o up t h r o u gh stones at Seeiso's m e n. A f t er injuring Tlali Seeiso's p e o p le h ad left a nd his g r o up h ad t h r o wn stones. He s a ys if he d id n ot m e n t i on the stone t h r o w i ng it w as just b e c a u se he w as f o l l o w i ng questions a s k e d. He s a ys n ot all of t h em h ad r un a w ay for it w as h i m s e lf a nd T h a bo w ho r an a w a y. He s a ys he did say at the P. E. after Ntsibiseng w as shot Tlali w as also assaulted. He s a ys at the P. E. he did say not all of t h em r an a w ay a nd if the magistrate h ad n ot r e c o r d ed this it w as a m i s t a k e. He s a ys it w as after parting w i th S e e i s o 's p e o p le that he h ad b e c o me short of hearing. He s a ys if he did n ot s ay there w as s t o ne t h r o w i ng after Ntsibiseng w as shot, it w o u ld w e ll be it is b e c a u se no question led h im to this. He s a ys Tlali w as born at M a s a k a l e 's w h e re his parents lived. H is father w as L e s o le M a q o b e. He h ad forgotten his m o h t e r 's n a me for he w as y o u ng w h en his m o t h er left. Tlali w as buried at M a i m m a n e 's b e i ng n ot M a s a k a l e 's a r ea b e i ng w h e re his m o t h er w as b o m. Tlali h ad relatives at M a s a k a l e ' s. T h e re w e re other M a q o b e 's at M a s a k a l e 's for e x a m p l e, S a n g. Tlali h ad m a ny relatives at M a s a k a l e 's s o me of w h om u s ed the s u r n a me T h a b i s o. He disagrees that Tlali w as a t r o u b l e m a k er a nd f o nd of fighting. C r o s s - e x a m i n ed by M r. K h a u oe the w i t n e ss testified t h ey h ad g o ne there to find out w hy b o ys w e re c h a s ed a w a y. He says Seeiso's p e o p le w e re assaulting their h e r d b o y s. W h en they r e c e i v ed the m e s s a ge b o ys h ad b e en c h a s ed a w ay a nd they w e re at me c h i e fs court playing drafts. He h ad n ot s e en a ny chiefs. An a t t e m pt to find the chief w as unsuccessful a nd they w e re n ot sure the b o ys h ad b e en assaulted. Police h ad not intervened. T h ey h ad b e en told by police to release S e e i s o 's cattle b e c a u se the latter w e re s a y i ng the area b e l o n gs to t h e m. T h ey w e re n ot certain Seeiso's p e o p le w a n t ed to fight t h e m. T h ey h ad n ot k n o wn there w o u ld be fighting b e c a u se the police h ad said they w e re to g a ze c o m m u n a l l y. T h ey h ad n ot g o ne to the police b e c a u se they w e re not sure the b o ys h ad b e en c h a s ed a w a y. T h ey w a n t ed to verify f r om their h e r d b o y s. T h ey h ad d e c i d ed to go to Tšitaand thereafter to the police. He s a ys he did s ay t h ey w e nt to Tšitato find o ut w h at for he w as calling t h em a nd thereafter t h ey w e re g o i ng to go to the police. He s a ys e v en if he h a d n 't m e n t i o n ed this it w as a m i s t a ke for they h ad i n t e n d ed to go to the police. T he witness h as testified that he did n ot foresee that fighting w o u ld erupt. He says fighting did not take place on Seeiso's territory. F r om M a s a k a l e 's to Seeiso's o ne crosses L i o t l o a n e ng - it is not the o ne t h ey c r o s s ed in g o i ng to Tšita. In g o i ng to S e e i s o 's M a s a k a l e 's subjects cross a rivulet. He s a ys t h ey w o u ld n ot s e nd a n y b o dy for Tšitahad called t h e m. He h ad responsibility at R a m a k o p o ng t h o u gh it w as u n d er M a s a k a l e. M a s a k a le fell u n d er Seeiso's. T h ey h ad f o u nd t wo b o ys on the hillock a g ed 1 7 - 18 y e a r s; the b o ys h ad a c c o m p a n i ed t h em to Tšita. T he b o ys h ad said they did not k n ow w hy they w e re c h a s ed a w a y. T h ey did n ot k n ow w h at for Tšitacalled t h e m. T h ey c o u ld not tell w h e t h er the b o ys w e re telling the truth w h en they said they w e re c h a s ed a w a y. He s a ys he h ad forgotten the b oy Ntšasa. He denies the reason he did not contact the chief w as because he w as going to fight. He says he does not k n ow whether in the event of a scrap or fighting Tšitawould take their side. He says Tšitawas sympathetic to their cause. He says he did mention at the P. E. the fact that they w e nt to Tšitato find out w hy the b o ys w e re chased a w a y. He says he is a w a re he did not tell the magistrate their a im w as to find out w hy Seeiso's m en chased a w ay their herdboys. He says w h en he left the chiefs court he h ad k n o wn nothing about the quarrel with Seeiso's people nor did he k n ow anything about the impounding of stock. He says the chasing a w ay of their h e r d b o ys by Seeiso's people w as in defiance of the police order. He says it w as never his aim to fight Seeiso's people. He says he fled because he is afraid of a gun. T h ey had returned to the scene because their colleague h ad b e en shot a nd returned to help an injured m a n. He says they w a n t ed to save the life of a m an w ho had not yet died. He says they w e re not sacrificing their lives but assisting an injured m a n. He says after Tlali w as shot they did not re-group to fight. T h ey h ad not returned a long distance a w ay - it w as about 15 paces a w a y. He denies w h en they returned they w e re fully a r m ed with firearms. Put to h im there w as no injury on Tlali caused by a stone he says he is telling the truth. He says w h en the police arrived he undressed Tlali. He says Tlali w as wearing an overall. He says he is not surprised he is said to be the only one w ho mentions a w o u nd b e l ow the breast. He says he denies they w e re attacking Seeiso's people. He says he w as not present w h en accused 3 gave the s w o rd to the police. He says he d o es not k n ow h ow the s w o rd got to accused 4. T he witness w e nt to say he did not k n ow either M a k h e t ha or Jonathan of Seeiso's. He says he is telling the truth that accused 2 struck Tlali with a s w o rd for he w as present. He h ad k n o wn M o h l o lo ( a c c u s ed 5) b e f o re the fighting; he h ad n ot s e en h im for o w i ng to the fierce fighting he c o u ld not see e v e r y b o d y. He s a ys he did s ay M o n n a m o h o l o 's w as n ot in dispute. He denies a c c u s ed 2 w as n ot h o l d i ng a s w o r d. He h ad n ot c o u n t ed h ow m a ny of Seeiso's m en w e re e n g a g ed in the fighting. He h ad s e en 8 on o ne side a nd Seeiso's m en w e re m o re t h an 8. He h ad helped the police in their investigation. He h ad told the police he h ad n ot r e c o g n i s ed s o me p e o p le a nd b e c a u se of the ferocity of the fighting he h ad n ot r e c o g n i s ed s o me people. He says t h o u gh the fighting w as fierce he h ad identified s o me p e o p l e. He s a ys he w as fighting assisting Tlali. He s a ys he told the police w h at they w e re carrying but the police h ad not seized their w e a p o n s. He s a ys he s aw a c c u s ed 4 hit Tlali w i th a stone a nd if he h ad n ot said this at the P . E. it is b e c a u se he w as n ot properly r e c o r d e d. C r o s s - e x a m i n ed by M r. F o sa the w i t n e ss says other t h an T a n k i so no other p e r s on h ad b r o u g ht the m e s s a ge that the b o ys w e re b e i ng assaulted. He h ad n ot c o u n t ed the n u m b er of b o ys c h a s ed a w ay - he h ad c o u n t ed the n u m b er of kraals involved. Matiti h ad brought the m e s s a ge that Tšitawas calling t h e m. W h en Matiti came to him he had not told him Seeiso's men were armed. They had gone to Tšita purely to find out if the b o ys h ad b e en c h a s ed a w ay a nd if so to find o ut w hy t h ey w e re c h a s ed as the police h ad said the area w as c o m m on grazing. He s a ys they w e re n ot a r m ed w i th s w o r ds a nd sticks. After T a n k i so h ad reported to t h em they h ad d i s c u s s ed nothing. Seeiso's p e o p le h ad c o me t o w a r ds t h e m. He s a ys no fighting w as discussed before fighting t o ok place - they m e r e ly w e nt to w h e re t h ey w e re called. T h ey did not go up the d o n ga to get to S e e i s o 's p e o p l e. He g ot involved in the fighting after Tlali was shot. They had thrown stones after Tlali was injured. Tlali h ad tried to w a rd off the s w o rd b l o w. He s a ys in this court he w as n ot a s k ed w h e t h er he w a r d ed off a b l o w. He s a ys he k n o ws of no fighting b e t w e en Ins p e o p le a nd Kolilane's. No re-examination by C r o wn C o u n s e l. Q u e s t i o n ed by A s s e s s or 11 the w i t n e ss testified he w as a m e m b er of the D e v e l o p m e nt C o m m i t t ee in his village. He says he d o es not k n ow w hy a report w as m a de to h im about the b o ys b e i ng c h a s ed a w a y. He h ad t a k en a stick f r om T a n k i so w h i ch he held at the c h i e fs place. If there is a disturbance a m an carried a stick. P e o p le on the hillock w e re seated in a g r o up a nd their cattle w e re at S e h l a b e ng h e r d ed by M a s a k a l e 's b o y s. T h ey w e re w a l k i ng on either side of the valley a nd no w o r ds w e re e x c h a n g e d. All he h ad noticed w as m en carrying sticks. A m an carrying a firearm w as w e a r i ng a blanket. B e f o re Tlali w as shot there h ad b e en no gunshot. He s a ys N t s i b i s e ng w as shot by a c c u s ed 1. He h ad said N t s i b i s e ng w as shot at the b a ck of the s h o u l d er a nd the bullet h ad c o me out in front. T he t wo g r o u ps h ad never fought with sticks. T he firearm report h ad c o me f r om o ne firearm. T h e re w as interploughing w h en cattle w e re i m p o u n d ed at L i t h a b a n e ng he h ad b e en absent as he w as in K i m b e r l e y. He s a ys m en b e f o re court w e re present in the fighting. T h ey h ad crossed the s t r e am to w h e re Tšita w a s. W h en the g un s o u n d ed Seeiso's p e o p le h ad started t h r o w i ng stones. P . W .5 Peiso Phohleli ( P . W .6 at the P. E.) s w o rn h ad testified he k n ew the events of the d a y. At the t i me he w as herding. He w as illiterate. He w as h e r d i ng at M o n n a m o h o l o ' s. He w as herding cattle. He w as h e r d i ng w i th other b o ys f r om M a s a k a l e 's a nd Seeiso's. P e o p le f r om Seeiso's n a m e ly a c c u s ed p e r s o ns h ad c o m e. Tliey h ad ordered t h em to r e m o ve their cattle f r om M o n n a m o h o k Ts w i t h o ut telling t h em the reason w h y. Seeiso's cattle h ad not b e en o r d e r ed out of the grazing area. T h ey h ad r e m o v ed their cattle to H l a c h a n e n g ., In ordering t h em to r e m o ve their cattle Seeiso's m en h ad b e en chasing t h e m. T h ey w e re also t h r o w i ng stones at them. T h ey h ad then sent T a n k i so h o m e; while they w e re on the hill T h a bo ( P . W . 4) h ad arrived w i th o ne M o f o k a. T h ey c a me to t h em on the hill w h e re t h ey w e r e. Matiti h ad then c o me saying they w e re w a n t ed by Tšita. T h a bo a nd M o f o ka h ad gone up towards where Tšitawas. He had not gone up though he could see Tšita f r om w h e re he w a s. T h o se w ho w e nt up to Tšita w e re P . W . 4, Mofoka, Tlali, N t s i b i s e n g, S e h l o ho a nd Ntšasa. As for the p e o p le chasing t h em a nd t h r o w i ng stones, they w e re at M o n n a m o h o l o ' s. He c o u ld see t h em f r om w h e re he w a s. He h ad heard a g un report 3 times. T h ey h ad g o ne up to see w h at w as h a p p e n i ng w i th S e l o m e t si a nd other b o ys he w as herding with. W h en he h e a rd the g un report he s aw m en shot a nd p e o p le w e re fleeing - they w e re M a s a k a l e 's p e o p l e. He h ad g o ne up to M a k o p o ng b e l ow M o n n a m o h o l o 's a nd f o u nd that Tlali a nd Ntsibiseng w e re shot. Tlali w as shot in the left leg. He h ad fallen d o wn a nd N t s e b i s e ng w as d e ad while Tlali w as still alive. T h e re w e re people in the vicinity of M a s a k a l e 's standing there. He h ad s e en no fighting b e t w e en M a s a k a l e 's a nd Seeiso's p e o p l e. Police w e re fetched a nd they t o ok the d e c e a s ed a w ay a nd he returned to his cattle. M a s a k a l e 's p e o p le w e re carrying sticks. T h e se w e re plastic sticks a nd ordinary sticks. C r o s s - e x a m i n ed by M r. P h e ko he says all cattle f r om M a s a k a l e 's w e re c h a s ed a w ay f r om M o n n a m o h o l o ' s. He says there w e re m a ny kraals a nd he is unable to n a me t h em all. N ot all people he h ad mentioned h ad kraals a nd Ntsibiseng did not have a kraal though he h ad Mothetsi's cattle grazing there. S e h l o ho h ad no kraal a nd he h ad no responsibility for a ny cattle. He says 8 m en h ad c o me a nd Tankiso said he h ad reported to P . . W .4 a nd M a s a k a l e. He forgets w h at d ay of the w e ek it w a s. He cannot recall w h e t h er on the M o n d ay cattle f r om Seeiso's h ad b e en i m p o u n d ed grazing at M o n n a m o h o l o 's a nd that there w as fighting. He d o es not k n ow if police h ad intervened. It w as the first time he h ad seen fighting o v er the area. He says though he lives at M a s a k a l e 's there are times w h en he h as b e en absent f r om the village for over 2 m o n t hs a nd cannot say w h at transpired in his absence. W h en the events he is relating h a p p e n ed he h ad just arrived a nd he w as 2 w e e ks in the village. He says they w e re c h a s ed a w ay by all the a c c u s ed persons before court. After they w e re chased a w ay they h ad not got a n y w h e re near a c c u s ed persons. He says he k n o ws accused 1 very well b e c a u se he k n o ws his n a me a nd he w as w e a r i ng a blanket - it w as dark yellowish. W h en he s aw a c c u s ed 1 he w as about 50 metres a w a y. He could not r e m e m b er if a c c u s ed 1 h ad anything on his head. He h ad not seen accused 1 arrive he h ad seen h im c o me t o w a r ds them. It w as not true a c c u s ed I h ad c o me on the scene about m i d d a y. T he witness denies accused 1 w as driving cattle he used for ploughing. He denies a c c u s ed 1 w as late arriving on the scene. T he witness also denies accused 2 c a me on the scene at around midday. He denies accused I did not find t h em w h e re they w e r e. He says Masakale's and Seeiso's cattle w e re at M o n n a m o h o l o ' s. He says a c c u s ed persons chased t h em a w a y. He says a c c u s ed 1 w as wearing a dark greyish blanket. T he w i t n e ss h as further testified w h en T h a bo a nd his c o m p a n i on arrived at H l a c h a n e ng their cattle w e re at H I a c h a n e ng a nd S e h l a b e n g. H l a c h a n e ng a nd S e h l a b e ng w e re divided by a stream. B o th H l a c h a n e ng a nd S e h l a b e ng fell u n d er M a s a k a l e ' s. Tšitawas at M o n n a m o h o l o ' s. M a s a k a l e 's p e o p le h ad g o ne up H l a c h a n e ng but up the valley a nd there w as no s t r e am to cross. He s a ys he h as not said that w h en these p e o p le w e nt to Tšitathey h ad d i s a p p e a r ed f r om his v i e w. As S e e i s o 's p e o p le w e re g o i ng u p, they h ad d i s a p p e a r ed f r om his v i e w. W h en he e m e r g ed he h ad s e en M a s a k a l e 's p e o p le flee. He s a ys he c o u ld n ot s ee Seeiso's p e o p le before he e m e r g ed into v i e w. He s a ys it w as S e e i s o 's p e o p le w ho c a me t o w a r ds M a s a k a l e 's p e o p le for M a s a k a l e 's g r o up w as g o i ng t o w a r ds Tsita. T he witness says until he heard the g un report he did not k n ow w h at w as h a p p e n i n g. He says while Seeiso's p e o p le h ad disappeared f r om his v i e w, M a s a k a l e 's p e o p le w e re within v i e w. T he g r o u ps w e re giving h im their right h a nd side. He s a ys he w as so far a w ay he could not see a p e r s on fall - he w as a b o ut 1 km a w a y. All he s aw w as people fleeing a nd a g un report. He h ad heard a g un report before they fled - it w as o n ce a nd after they fled it s o u n d ed 3 times. He c o u ld not s ee w ho w as firing. He c o u ld s ee that M a s a k a l e 's p e o p le w e re t h r o w i ng stones. It w as after the g un s o u n d ed the first time. T h ey h ad c o me b a ck a nd there w as stone t h r o w i n g. It s o u n d ed again a nd they scattered. W h en they got o n to the s c e ne there w e re no people. He says in his evidence-in-chief he h ad said M a s a k a l e 's p e o p le ran a w ay - he h ad also m e n t i o n ed this at the P. E. He says t h o u gh he w as in c o m p a ny of T h a bo ( P . W . 4) he h ad not discussed the e v i d e n ce w i th h i m. T h a bo h ad not told h im w h at transpired in court. He h ad not s e en w e a p o ns carried for there w as blanket w e a r i ng a nd stone throwing. He h ad not s e en s w o r ds or g un but he h ad s e en sticks that w e re carried. He says there is nothing strange in this for g u ns a nd s w o r ds are n o r m a l ly hidden. As far as M a s a k a l e 's m en w e re c o n c e r n ed there w as a 9th m an t h o u gh t h ey w e re n ot m o re than 8. He denies o ne of t h em w as carrying a g u n. He s a ys if his p e o p le carried g u ns or s w o rd he w o u ld h a ve noticed this for t h ey w e re nearer h i m. He c o u ld not say w h e t h er a c c u s ed h ad w o u n d s. C r o s s - e x a m i n ed by M r. K h a u oe the w i t n e ss s a ys there is a dividing line b e t w e en M a s a k a l e 's a nd Seeiso's b e i ng a d o n g a. He did n ot k n ow M o k h o a b o ng Ha R a m a q e l e. He k n ew Setimeleng. F r om S e h l a b a n e ng to S e t i m e l e ng o ne c r o s s ed nothing. F r om S e h l a b a n e ng o ne w a l ks into the veldt a nd t h e n ce o ne crosses a bridge; this is not near Liqalaneng. He says he is in court a n s w e r i ng for h i m s e lf a nd n ot T h a b o. He s a ys H l a c h a n e ng is a plateau w i th cattleposts. T he e v i d e n ce that T h a bo a nd c o m p a ny w e nt up the stream is not true. By kraals he m e a nt M a s a k a l e 's kraals n a m e l y: Tlali's ( d e c e a s e d) Ntšasa, T h a bo ( P . W . 4 ), T s e k i so ' M o l a o a, N t h o p o, Kolisang, M a s a k a le M a s a k a l e, Mofihli, M o s o l a, R a l e j a k a ne M o s o l a. That's all the n a m es he r e m e m b e r s. Ntsibiseng h ad cattle responsible to h im b e i ng Mofihli's a nd his s on M o t h e t s i. He h e r d ed T a e lo M a s a k a l e 's cattle. Lebiletsa M a s a k a le h ad a kraal, too. T h ey h ad sent T a n k i so to report to c o m m i t t ee m e m b e rs that they h ad b e en c h a s ed a w a y. He h ad said this at the P. E. T h ey hadn't said he w as to report to parents but to the c o m m i t t e e. He did not k n ow b e f o re the fighting police h ad got to his village. W h en they w e re c h a s ed a w ay they h ad already r e a c h ed the grazing area. T he irid area ( m o k u r u t l o a n e) is a deserted road. C o n c e r n i ng a c c u s ed he did not k n ow their cattle but k n ew a c c u s ed p e r s o ns t h e m s e l v e s. He s a ys w h en he w as c h a s ed a w ay a c c u s ed 5 w as present. He could not r e m e m b er h ow he w as d r e s s ed t h o u gh he w as w e a r i ng blanket. He says a c c u s ed 5 carried a stick - a s m o o t h, stout stick (lebetlela). A c c u s ed 2 w as w e a r i ng a s h a wl (letlama). He denies a c c u s ed 2 w as w e a r i ng an overral. He says a c c u s ed together participated in c h a s i ng t h em a w a y. He insists his cattle w e re at M o n n a m o h o l o ' s. P ut to h im it is the first t i me he says w h en they w e re c h a s ed a w ay the cattle w e re already at M o n n a m o h o l o ' s, he says he could h a ve forgotten to say this. He says he d o es n ot k n ow w h e t h er T h a bo g a ve e v i d e n c e. He d o es not k n ow if Tšitawas also h e r d i ng cattle. He s a ys the cattle he s aw w e re not M a s a k a l e 's a nd could not say w h e t h er they w e re Tšita's. He s a ys their cattle w e re c h a s ed a w ay f r om M o n n a m o h o l o ' s. He says on the d ay in question he h ad h e a rd 3 g un reports. No R e - e x a m i n a t i on by M r. L e n o n o. P . W .6 ( P . W .3 at the P. E.) Mofoka M a s a k a le s w o rn h ad stated he resided at M a s a k a l e ' s. He k n ew a c c u s ed p e r s o ns in the d o c k. T h ey resided at Seeiso's. He also k n ew d e c e a s ed p e r s o ns n a m e l y, Tlali a nd Ntsibiseng. T h ey h ad died in N o v e m b e r, 1 9 9 2. On this d ay he w as at h o m e. He h ad left h o me for the c h i e fs court. T h ey w e re just seated there with other m e n. After T a n k i so h ad m a de a report he h ad left with Tlali a nd Ntsibiseng. O t h e rs n a m e ly T h a b o, M a s a k a l e, Ntšasa, S e h l o ho h ad f o u nd t h em on the w ay at Rantaile's. T h ey w e re g o i ng to M o n n a m o h o l o 's w h e re it w as said their cattle w e re b e i ng c h a s ed a w ay a nd yet the police h ad allowed grazing. T h ey h ad g o ne to H l a c h a n e ng w h e re they f o u nd P e i so a nd Selometsi. T h ey w e re questioning the b o ys w h en Tšitacalled t h e m. Tšitawas at M o n n a m o h o l o 's a nd he h ad sent the b oy L e p h a h a m e l a. H l a c h a n e ng w a s an o p en veldt. On the M o n d ay they h ad i m p o u n d ed Seeiso's cattle; it w as by h i m, K o l i s a n g, a nd M n o no - it is the r e a s on they w e nt to Tšitato h e ar w h at he h ad to say. T h ey h ad taken a direct route to Tsita. T h ey c o u ld s ee Seeiso's m en a nd the cattle. As they w e re about to c o me into v i ew they h ad s e en Seeiso's m en 15 p a c es a w a y; t h ey w e re w a l k i ng t o w a r ds Tšitaand w e re 40 p a c es a w ay f r om h i m. He c o u ld n ot r e m e m b er w h e t h er Tšitawas alone. As they w a l k ed a l o ng t h ey h e a rd the s o u nd of a g un f r om Seeiso's people. He says they w e re so close t h ey h e a rd the s o u nd c a me f r om S e e i so m e n. T h ey h ad fled. T h ey realised Tlali h ad r e m a i n ed b e h i nd a nd believed he h ad b e en shot. He w as standing s u p p o r t i ng h i m s e lf on his stick. T h ey h ad returned, p i c k ed up stones a nd t h r ew t h em at Seeiso's p e o p l e. T h ey w e re w a l k i ng t o w a r ds Tlali in a fighting m o o d. S t o n es h ad b e en e x c h a n g ed a nd there w as s o u nd of another g un report a nd N t s e b i s e ng w as shot. A c c u s ed 1 did the shooting. He h ad s e en the firearm. He s aw it w h en N t s i b i s e ng w as shot. It w as a big g un similar to the o ne before court. Ntsibiseng h ad fallen i m m e d i a t e ly a nd t h ey h ad fled. As they returned a c c u s ed 2 h ad struck Tlali with a s w o rd - it w as like the o ne b e f o re court; it w as a b o ve the left ear. He h ad n ot s e en the s w o rd before. A c c u s ed 4 h ad then hit Tlali with a stone on the chest. W h en Tlali w as struck w i th a s w o rd he w as still standing. Tlali w as a hefty person. W h en he w as struck w i th the s w o rd he tried to w a rd off the b l ow but he w as too w e ak on a c c o u nt of the w o u nd already inflicted on h i m. After Seeiso's p e o p le left he h ad r e m a i n ed standing. He h ad t h en g o ne to m a ke a report to the chief a nd w h en he left Tlali w as seated. He h ad n ot g o ne closer to Tlali or Ntsibiseng. After m a k i ng a report to the chief he h ad returned to the d e c e a s ed persons a nd f o u nd both d e a d. He h ad f o u nd w o u n ds of t h e m. Tlali: a g un w o u nd on the left thigh - a s w o rd w o u nd a b o ve the left ear. Ntsibiseng: a g un w o u nd on the left side of the n e ck w h e re it joins the chest; the police h ad c o me a nd t a k en c o r p s es to the m o r t u a ry W h en he h e a rd the first g u n s h ot n o t h i ng h ad h a p p e n ed b e t w e en M a s a k a l e 's p e o p le a nd Seeiso's p e o p le a nd no w o r ds h ad b e en e x c h a n g e d. S o me o f a c c u s ed w e re h e r d b o ys w h i le others w e re not. A c c u s ed 4, 6, 7 a nd 8 w e re h e r d b o y s. T he others w e re n ot h e r d b o y s. M o n n a m o h o l o 's p e o p le cultivated lands b e l o n g i ng to M a s a k a l e ' s. T he chief of M a s a k a le w as responsible to the chief of Seeiso's. All in all he h ad h e a rd 5 g un reports. A f t er N t s i b i s e ng w as shot there w as intermittent g un shooting. T h ey w e re fleeing a nd returning to help injured people w h i le Seeiso's p e o p le t h r ew stones. W h en he shot, a c c u s ed 1 w as standing b e h i nd Seeiso's p e o p l e. Seeiso's p e o p le h ad s t o p p ed M a s a k a l e 's m en g o i ng to Tšitaand the t wo g r o u ps w e re facing e a ch other a nd a c c u s ed 1 w as at an a n g l e. A c c u s ed 1 w as not directly b e h i nd Seeiso's p e o p le b ut a little on the side facing M a s a k a l e 's p e o p l e. M a s a k a l e 's p e o p le carried virtually n o t h i ng - s o me carried small sticks, others nothing. Cross-examination by M r. P h e ko he says w h en T a n k i so arrived at the chief's court he w as w i th T h a bo M o q o p h e l o, Tlali M a q o b e, M a s a k a le M a s a k a l e, N t s i b i s e ng M a s a k a le a nd Ntšasa ' M o l a o a. After T a n k i so reported they h ad g o ne to w h e re it w as reported they h ad b e en c h a s ed a w a y; they h ad left together. T h a bo a nd M a s a k a le h ad r e m a i n ed b e h i nd to relieve nature. T h at he is saying s o m e t h i ng different f r om w h at he said in evidence-in-chief he a g r e es for s o me of the m en he h as m e n t i o n ed f o u nd t h em on the w a y. He h ad left w i th Tlali, N t s i b i s e ng a nd Ntšasa. W h en T a n k i so reported he w as w i th Tlali, Ntsibiseng, M a s a k a l e, T h a bo M o q o k e la a nd Ntšasa. T a n k i so h ad reported to these m e n. T h a bo a nd M a s a k a le h ad r e m a i n ed w h e re drafts w e re b e i ng played. He a g r e es he said T h a bo a nd M a s a k a le h ad r e m a i n ed b e h i nd to relieve nature. He says o w i ng to p a s s a ge of t i me he h ad forgotten w h at he said at the P. E. T h a bo K o l i s a n g, Mofokeng Mofokeng, Peiso a nd m a ny others he says he d o es not r e m e m b e r. He s a ys as at the P. E. events w e re fresh in his m i nd a nd he r e m e m b e r ed t h em better than n o w. He s a ys at H l a c h a n e ng he forgets w h e t h er Mofokeng a nd T h a bo K o l i s a ng w e re present. P ut to h im there w e re m a ny other people f r om his village he say she d o es not r e m e m b e r. He says w h en they c a me to H l a c h a n e ng M a t l a ma w as present t h o u gh he w as not a herdboy and w as not present w h en T a n k i so reported nor w as Mofokeng Mofokeng w ho is a h e r d b oy present. He says there w e re only 6 of t h em a nd did not k n ow Lepekola. He says they w e nt to Tšitato find out w hy their b o ys w e re c h a s ed a w a y. That in going to Tšitaan effort w as m a de to avoid contact with Seeiso's people he agrees. He says w h at is correct is that they w e nt straight to Tsita. T h ey w e nt to Tšitato ascertain the reason he w a n t ed t h e m. T h ey a v o i d ed Seeiso's people b e c a u se they h ad i m p o u n d ed their cattle a nd they h ad expelled their cattle. He k n ew nothing of fighting on the M o n d a y. He says it is not strange to avoid people. He s a ys in going to Tšita they w e re giving their village their b a c k s. To get to Seeiso's p e o p le they h ad to cross a stream. F r om H l a c h a n e ng they could see Seeiso's people though they w e re d o wn b e l o w. T h ey h ad a bird's eye v i ew of t h e m. He says there w as no reason not to go straight to Tsita. T h ey h ad not g o ne straight to Seeiso's people. He says he did not see Tšitajoin in the fighting. He denies they started throwing stones at Seeiso's people. He denies they w e re m a ny for they w e re o n l y ?. He says besides Tlali a nd Ntsibiseng n o ne of t h em w e re hurt. He denies e v en before Tlali w as injured there w e re 3 g un reports. He denies they w e re a r m ed with sticks a nd s w o r d s. He denies they c h a s ed Seeiso's people before Tlali w as injured. He says s o me of his evidence could be faulty at the P. E. for then he w as still in a state of fright. He says he d o es not k n ow M a i m a n a ' s. C r o s s - e x a m i n ed by M r. K h a u oe the witness says Mofokeng h ad c o me to t h em while they w e re on a hillock w h e re the cattle h ad been. He says at the Magistrate's court he w as still s h a k en by w h at he h ad witnessed. He w as 24 years old a nd not circumcised. He agrees he g a ve his evidence on 21 F e b r u a r y, 1 9 9 4. He s a ys regarding Mofokeng he is a w a re his e v i d e n ce at the P . E. differs f r om his t e s t i m o ny in this court. He k n ew dates o n ly if told. He h ad b e en told by T h a bo Mofokeng w h en Tlali died. He says w h en they w e nt to T e y a t e y a n e ng he h ad a s k ed Mofokeng w h en d e c e a s ed h ad b e en shot. He says no other evidence w as discussed. He s a ys at the P. E. he h ad not m e n t i o n ed Selometsi Selometsi. He s a ys in 1 9 92 Peiso w as a h e r d b o y; they h ad s p o k en a b o ut the events of the d ay w h en Tlali w as injured. It w as only h im a nd Peiso. L e p h a h a m e la h ad said Tšitawas calling t h em t h o u gh o w i ng to p a s s a ge of t i me his m e m o ry w as n ot fresh. He c o u ld n ot exactly r e m e m b er w h e t h er they w e re called by L e p h a h a m e la or Matiti. Seeiso's cattle w e re i m p o u n d ed by h i m. T h e re w as no r e a s on to a v o id Seeiso's people. F r om w h e re they w e re Seeiso's p e o p le w e re 8 00 m e t r es a w a y. He says he n ow r e m e m b e rs Tšitawas not alone t h o u gh he d o es not r e m e m b er w i th w h om he w a s. He doesn't k n ow w h at Tšitaand the m an he w as w i th w e re holding. N o ne of the g r o u ps w e re nearer Tšita. He says before Tlali w as injured M a s a k a l e 's p e o p le h ad not carried sticks though s o me had. He h ad h ad no stick. W h en they c a me to the other b o ys T a n k i so w as not with the other b o ys but herding. It w o u ld not be true that T a n k i so did not go a n y w h e r e. A c c u s ed 2 h ad b e en w e a r i ng a s h a wl or l e t l a m a' blanket - it w as off- white. He says off-white is like colour of pealing wall p a p e r. He denies a c c u s ed 2 w as w e a r i ng a t w o - p i e ce overall. He h ad not noticed w h at trousers he w as w e a r i n g. He could not r e m e m b er w h e t h er he w as w e a r i ng a hat. He says his observation w as impaired by the ferocity of the fight. He k n ew accused 5 and had seen h im during the fighting. He w as throwing stones and w as holding something in his hand - he w as carrying a stick though he could not say w h at kind - it w as not a twig. It w as a stick though he could not say what colour. He says because of the ferocity of the fighting he realises there are things he did not notice . W h en accused 2 struck Tlali with a s w o rd he w as 12 paces a w ay from him. W h en the b l ow w as delivered there w e re others nearer accused 2. This is w h at he s a w. He says even if accused 5 did not have a s w o rd he s aw h im carrying it. Put to h im the first gunshot c a me from his group he says no it c a me from Seeiso's group. He denies they gathered at Hlachaneng in order to spring on Seeiso's m e n. He says w h en the police c a me Tlali's corpse w as undressed and he had seen w o u n ds on the b o d y, a gunshot w o u nd on his thigh, and a s w o rd w o u nd a b o ve his left ear. He denies they w e re attacked in self-defence. Cross-examined by M r. Fosa the witness denies they p r o v o k ed the fight. He says he firstsaw the g un w h en Ntsibiseng w as shot for Tlali h ad already b e en shot. W h en he s aw the g un he w as 10 paces a w ay from it. He says though he h ad not seen w h at accused 6 carried because of the ferocity of the fighting accused 6 h ad nevertheless thrown stones. R e - e x a m i n ed the witness testified to reach Tšitaone h ad to go up the river though it w as not necessary to cross the river in order to reach Tsita. Either w ay they had to cross the stream. By Assessor 1. He says w h en on the M o n d ay cattle w e re i m p o u n d e d, instead of p a y i n g, o w n e rs h ad repaired to the police. He s a ys f r om h o me to M o n n a m o h o l o 's o ne m u st p a ss H I a c h a n e n g. He s a ys there is no interploughing at M o n n a m o h o l o ' s. W h en Seeiso's p e o p le left they w e re w e ll a w a re they h ad injured M a s a k a l e 's people. He says they gathered at the c h i e fs court as a thing of c u s t o m. T h ey w a n t ed to find out w hy their b o ys w e re expelled f r om the c o m m on grazing area. T h ey did not a w a it the c h i e fs instructions. P . W . I Tšita M a l i eo ( P . W .5 at the P. E.) s w o rn states that he resides at M a k o p o ng u n d er M a s a k a l a. He is literate. He k n ew d e c e a s ed p e r s o ns n a m e ly Tlali a nd Ntsibiseng. He r e m e m b e r ed incidents of the d ay they died. It h a p p e n ed at M a s a k a l e 's at a place called M o n n a m o h o l o. It w as the 11th m o n th in 1 9 9 2. He sees a c c u s ed persons in the b o x. He k n o ws a c c u s ed 1, 3 ,4 a nd 5; as for the others, he d o es not k n ow their n a m es t h o u gh he h ad seen t h em often. T he a c c u s ed p e r s o ns c a me f r om Seeiso's. He s a ys a c c u s ed 1 is his m a t e r n al uncle. He s a ys on the d ay in question he w as at M o n n a m o h o l o 's an area falling u n d er chief M a s a k a l e. He h ad just attended a c o m m i t t ee m e e t i ng - it w as a d e v e l o p m e nt c o m m i t t ee m e e t i ng held e v e ry W e d n e s d a y. He h ad to p a ss t h r o u gh M o n n a m o h o l o 's in o r d er to get to M a k o p o n g. He h ad m en s e en M a s a k a l e 's cattle b e i ng expelled. W h i le M a s a k a l e 's cattle w e re grazing together w i th Seeiso's cattle M a s a k a l e 's cattle w e re c h a s ed a w a y. R e a c h i ng M o n n a m o h o l o 's he h ad set on a hillock w i th b o ys f r om M a k o p o n g. He h ad then seen M a s a k a l e 's m en gather at H I a c h a n e ng w h e re their cattle w e r e. It w as in the afternoon after 1.00 p . m. He h ad then sent his brother Matiti o t h e r w i se k n o wn as L e b a m a ng to M a s a k a l e 's m en to call t h em to h i m. It w as c o n c e r n i ng the expulsion of their cattle f r om M o n n a m o h o l o 's for he h ad an idea of g o i ng r o u nd the p r o b l em T he idea w as to consult the police w ho h ad released the area for c o m m on grazing to M a s a k a l e 's a nd Seeiso's cattle. W h en M a s a k a l e 's cattle w e re c h a s ed off Seeiso's cattle h ad r e m a i n ed b e h i n d. Seeiso's p e o p le h ad left their cattle a nd s t o p p ed M a s a k a l e 's p e o p l e. W h en M a s a k a l e 's p e o p le w e re s t o p p ed they w e re c o m i ng to w h e re he w as seated. T he m en he m e n t i o n ed w e re those w ho s t o p p ed M a s a k a l e 's m en a nd m a ny m o r e. It w as p e o p le w ho c a me f r om the cattle b ut a c c u s ed 1 c a me f r om his h o m e. He h ad s e en a c c u s ed 1 w a l k i ng w i th s o m e o ne as he p a s s ed h im f r om inspecting his land. W h en a c c u s ed 1 a nd his c o m p a n i on w e nt past h im he did not k n ow cattle h ad b e en c h a s ed a w ay - they c o u ld h a ve b e en as far a w ay as 40 p a c es a w a y. As s o on as a c c u s ed 1 g ot to M o n n a m o h o l o 's cattle w e re driven off. W h en a c c u s ed 1 p a s s ed h im he w as w e a r i ng a blanket a nd a balaclava. He w as also carrying a g u n. It w as a big g u n. He w as h o l d i ng it w i th his left h a nd flung over his shoulder a nd the m u z z le of the g un w as protruding u n d er the blanket. T he other portion of the g un w as bulging u n d er the blanket. He says they h ad not s p o k en to e a ch other. W h en M a s a k a l e 's p e o p le a p p r o a c h ed a tree, they r e d u c ed their p a ce a nd he h ad s e en a c c u s ed 1 load the g u n. In loading the g u n, it w as as if the others s u r r o u n d ed a c c u s ed 1 for he w as in the m i d d l e. A c c u s ed 1 h ad s t o p p ed a nd w as c r o u c h i ng on o ne k n e e. T he witness says M a s a k a l e 's p e o p le w e re a b o ut to c o me into v i e w. He h ad then said to the b o y s: ' do y ou see that is a g u n ?' T he b o ys h ad d e c a m p ed leaving the w i t n e ss a nd T e r o n k o. T he w i t n e ss w e nt on to testify that they h ad waited there for a long time a nd w h en Seeiso's p e o p le c a me on the scene they h ad stopped M a s a k a l e 's m e n. M a s a k a l e 's m en w e re c o m i ng t o w a r ds h im a nd Seeiso's p e o p le w e re going t o w a r ds M a s a k a l e 's m en b ut at an angle. T h en a g un h ad s o u n d ed a nd as it did so he a nd his c o m p a ny h ad fled t o w a r ds their h o m e. T he g un s o u n d ed t w i ce t h o u gh it w as altogether 5 times; w h en they h e a rd the g un report they w e re still running o n. T h en M a s a k a l e 's p e o p le h ad s h o u t ed saying: 'don't r un a w a y, p e o p le h a ve already d i e d/ T h ey h ad then returned b ut f o u nd N t s i b i s e ng h ad already died; Tlali h ad n ot died but he h ad a w o u nd on his left temple; another o ne on his left thigh; N t s i b i s e ng h ad a w o u nd on the left side of the n e ck next to the collarbone. Tlali h ad died w h i le t h ey w e re g a t h e r ed there a nd Seeiso's m en h ad already left. O ne of t h em h ad g o ne to call ' M a l i a ko M a s a k a le a nd the other o ne h ad g o ne to call the police. T he Chieftainess h ad arrived after s o me time. T h ey h ad l o o k ed at cartridges w h i c h, unless he is m i s t a k e n, w e re 3 or 4. He h ad f o u nd o n e. S h o wn the cartridges he s a ys they are the o n es he is referring to being five (5). S h o wn the g un he says it is the o ne w h i ch shot M a s a k a l e 's m e n. He h ad not s p o k en to Seeiso's m en nor w e re there a ny discussions b e t w e en M a s a k a l e 's a nd Seeiso's m en before the shooting. T he area w h e re the shooting t o ok p l a ce fell u n d er M a s a k a l e. To his k n o w l e d ge the area w as not in dispute. He did not k n ow w h e t h er there h ad b e en clashes in the area s a ve that the area w as u n d er M a s a k a l e 's jurisdiction. He did not k n ow w hy M a s a k a l e 's p e o p le w e re shot on the d ay in question. T h is trial started on 3 0 th A u g u s t, 1 9 95 w h e n, then,three c o u n s e ls h ad a p p e a r ed for a c c u s ed persons M r. P h e ko a p p e a r i ng for a c c u s ed 1 a nd M r. F o sa for a c c u s ed 6; M r. K h a u oe h ad a p p e a r ed for the rest of the a c c u s e d. T h e re h ad b e en several p o s t p o n e m e n ts up to 9 J u n e, 1 9 97 w h en the matter h ad b e en further p o s t p o n ed to 27 O c t o b e r, 1 9 9 7, but there w e re thereafter several p o s t p o n e m e n ts o w i ng to the Presiding J u d g e 's indisposition. H o w e v e r, on 17 F e b r u a r y, 1 9 98 the trial h ad r e s u m ed a nd M r. K h a u oe h ad i n f o r m ed the court he w as n ow a p p e a r i ng for a c c u s ed 1 a nd 6 in M e s s rs P h e k o 's a nd F o s a 's stead a nd n e e d ed a p o s t p o n e m e nt to a c q u a i nt h i m s e lf with the p r o c e e d i n g s. T he trial h ad b e en p o s t p o n ed to 19 F e b r u a r y, 1 9 8 8. T he trial h ad r e s u m ed on 19 F e b r u a r y, 1 9 98 a nd P . W .7 b e i ng r e m i n d ed he w as still u n d er oath, M r. K h a u oe h ad p r o c e e d ed w i th his c r o s s - e x a m i n a t i on a nd the witness h ad testified his m e m o ry w as g o o d. He says b e t w e en 1 9 91 a nd 1 9 94 he h ad n ot suffered lapse of m e m o r y. He h ad g i v en e v i d e n ce at T e y a t e y a n e ng in April, 1 9 9 4. He s a ys w h en he g a ve e v i d e n ce t h en things w e re fresher a nd the e v i d e n ce h ad b e en read to h i m. He h ad c o n f i r m ed the accurary of this testimony. He s a ys it is true before this court he h ad said the place at M a s a k a l e 's w h e re fighting t o ok place w as not in dispute a nd he denies at the P . E. he h ad said M o n n a m o h o l o 's w as in dispute. At the P. E. he h ad not said M o n n a m o h o l o 's but h ad said T h a b a n e ng w as in dispute. He says he h ad raised no q u e ry b e c a u se he w as u n a w a re he c o u ld q u e ry the court. Put to h im he said at the P. E. the source of trouble w as M a s a k a l e 's cattle grazing at M o n n a m o h o l o 's he disagrees. He s a ys there w as a dispute b ut at T h a b a n e n g. He says M o n n a m o h o l o 's only arose after the fighting in w h i ch t wo m en w e re killed a nd h e n ce this trial. He s a ys t h o u gh he w as absent M a j o ro h ad died as a result of conflict b e t w e en M a s a k a l e 's a nd Seeiso's p e o p l e. He k n ew Rantai. Pastures a nd grazing areas w e re M a s a k a l e ' s. W h en he w e nt past Rantaile he h ad n ot s e en cattle grazing. Rantaile's w as a village a nd grazing areas w e re at M a s a k a l e ' s. He s a ys he did s ay he s aw M a s a k a l e 's cattle b e i ng c h a s ed f r om M o n n a m o h o l o ' s. W h en cattle w e re c h a s ed a w ay he w as seated on a hillock w i th b o y s. T he hillock h ad no n a m e. T he hillock w as n ot at M o n n a m o h o l o ' s. He s a ys w h en cattle w e re c h a s ed a w ay he w as a p p r o a c h i ng M o n n a m o h o l o ' s. He s a ys it is not correct to say w h en cattle w e re driven off he w as seated on a hillock. He s a ys w h en he got to the hillock M a s a k a l e 's cattle h ad b e en c h a s ed a w a y. M o l i b o ea ( a c c u s ed 1 ), M o t h i b e li ( a c c u s ed 4 ), R a l i n eo ( a c c u s ed 3 ), L e fu ( a c c u s ed 2) a nd M o h l o lo (accused 5) w e re driving the cattle a w a y. T h e se are the m en he identified c h a s i ng a w ay the cattle. It w as possible in a previous t e s t i m o ny he h ad forgotten the n a m e s. He admits it w as possible he h ad not m e n t i o n ed L e fu ( a c c u s ed 2) at the P. E. He says he h ad called M a s a k a l e 's p e o p le to h im so they c o u ld together go to S e G k e ng Police Post. He says he preferred to sent an e m i s s a ry to M a s a k a l e 's m e n. W h en he sent his m e s s e n g er Seeiso's p e o p le w e re at M o n n a m o h o l o ' s. He says M a s a k a l e 's p e o p le did not h a ve to go past Seeiso's m e n. M a s a k a l e 's m en in order to get to w h e re he w as w o u ld h a ve h ad to p a ss Seeiso's m en at an angle a nd go behind t h e m. He says M a s a k a l e 's g r o up w as m o v i ng in the direction of Sefikeng Police Post. He says M a s a k a l e 's m en w e re further a w ay a nd he w as m u ch nearer a nd closer h o m e. He says he did not go to Seeiso's m en for they s e e m ed in a fighting m o o d. He says M o n n a m o h o l o 's is a place. He says n e ar w h e re he w as there w as a footpath. He says he c o u ld h a ve b e en 1½ kilometres f r om Seeiso's g r o u p. He s a ys Seeiso's m en c l o s ed in rapidly to intercept M a s a k a l e 's m e n. He says a c c u s ed 1 w e nt past h im n e ar a field at L e k h a l o ng w h i ch is in Seeiso's area. W h en a c c u s ed 1 p a s s ed h im he w as w e a r i ng a blanket a nd walking. W h en a c c u s ed 1 passed h im M a s a k a l e 's cattle w e re not yet c h a s ed a w a y. He says 1½ km a w ay o ne can't say w h e t h er or not a m an is in a fighting m o o d. He s a ys t h ey w e re in a fighting m o od b e c a u se w h en a c c u s ed o ne a nd his c o m p a n i on p a s s ed h im a c c u s ed 1 w as carrying a g u n. He did not k n ow w h e re a c c u s ed 1 a nd his c o m p a n i on w e re h e a d ed but he thought they w e re g o i ng to M o n n a m o h o l o ' s. He says the direction they took w as t o w a r ds his village. T he r e a s on he says they w e re g o i ng to M o n n a m o h o l o 's is b e c a u se the direction they t o ok w o u ld m a ke t h em go past M o n n a m o h o l o ' s. He admits a m an carrying a g un is not necessarily in a fighting m o o d, though in the case of accused 1, cattle w e re driven off at Monnamoholo's. He says w h en shooting c o m m e n c ed he w as about 1 0 0m a w ay and accused 1 w as 2 0 0m a w ay from him. He says Masakale's people w e re not behind Seeiso's m en but w e re c o m i ng towards w h e re he w as seated but w e re intercepted. He says Masakale's m en w e re intercepted. He says he does not k n ow whether Ralineo or Mothibeli were injured nor does he k n ow whether they w e nt to hospital. He categorically denies accused 1 w as not carrying a gun. He insists accused 1 w as wearing a blanket as described with a balaclava. He says he can't say w ho w as in accused 1's c o m p a ny nor can he say accused are that c o m p a n y. He says after calling Masakale's m en he w as a w a re of everything that happened that day. He denies it w as by design that Masakale's m en w e nt behind Seeiso's m en in order to attack them. He denies he called Masakale's m en to him so that fighting could c o m m e n c e. It w as correct w h at T h a bo M a p h e k e la said that as he w e nt towards the witness a g un report w as heard. He denies he is incriminating accused 1 to depict Masakale's m en as n ew b om babies. Re-examined by M r. L e n o no he says he keeps on referring to accused 1 as uncle by reason of his being his mother's brother. Assessor 1: W h en accused 1 passed h im they h ad not exchanged greetings. Seeiso's herdboys had joined accused 1. T he b oy he sent to Masakale's group w as a fully g r o wn b oy but has since died. He w as 20 years old at the time of his decease. M en he asked to c o me to him were fully g r o wn up m e n, s o me m u ch older than the b oy he h ad sent to call the g r o u p. T he other m en w i th a c c u s ed 1 w e re not carrying anything a nd M a s a k a l e 's g r o up n e v er r e a c h ed h i m. M r. L e n o no s a ys m e d i c al a nd ballistic reports are available b ut as the D r. is no l o n g er available he w i s h ed to h a nd in the m e d i c al reports. M r. K h a u oe h as at first o p p o s ed the h a n d i ng in of reports, but on reflection a nd after consulting a c c u s ed persons he h as said he d o es not object to the reports b e i ng h a n d ed in. B o th reports are h a n d ed in as exhibits, r e ad into the r e c o rd a nd m a r k ed respectively exhibit " A" " B ", a nd " C" A c c u s ed 3's m e d i c al report is m a r k ed E x h. " D" a nd a c c u s ed 4"s m e d i c al report is m a r k ed E x h. " E ". T he C r o wn h ad closed its case. M r. K h a u oe h ad then applied for discharge of a c c u s ed p e r s o ns a nd the c r o wn h ad o p p o s ed the application. T he trial h ad b e en p o s t p o n ed to 3 . 00 p . m. for full scale a d d r e s s e s, but at 3.00 p . m. the court h ad c h a n g ed its m i nd s a y i ng as the court's m i nd w as m a de up there w as no n e ed for in d e p th addresses. T he court h ad then acquitted a nd d i s c h a r g ed a c c u s ed 3, 5 , 6 ,7 a nd 8 at the e nd of C r o wn c a se a nd f o u nd that there w as e v i d e n ce to go to trial in respect of a c c u s ed 1 ,2 a nd 4. Mr K h a u oe for the d e f e n ce h ad then c l o s ed the d e f e n ce case. In a d d r e s s es M r. L e n o no for the C r o wn h ad said a c c u s ed 1 w as carrying a g u n, he w as seen loading the g un a nd accused's 1's g r o up a nd h e n ce a c c u s ed persons w e re fully a w a re of a c c u s ed 1's unlawful activities; m o r e o v e r, the e v i d e n ce h ad disclosed that during these unlawful activities a c c u s ed 1 's c o m r a d es h ad f o r m ed a semi-circle. A c c o r d i ng to M r. L e n o n o, w h o e v er associates w i th or aligns himself with a perpetrator of c r i me falls into the s a me category with the perpetrator a nd he q u o t ed The State v. M a l i n g a, 1963(1) S. A. 692 (A. D.) M r. L e n o no h as further said the p o s t m o r t em report h as said the cause of death w as a g un shot on the thigh a nd inter-cranial h a e m o r r h a ge in C o u nt 1 a nd this, according to the D r. a m o u n t ed to c a u se of death as c o m b i n a t i on of the t wo factors. He further says the court h ad given other a c c u s ed benefit of the d o u bt but in respect of those w h om the court f o u nd there w as a p r i ma facie case against, it b e h o v ed t h em to explain their state of m i nd in exculpation, if necessary. M r. L e n o no h as said P . W .4 a nd P . W .7 corroborated e a ch other essentially. He s a ys the g un is a police issue a nd a c c u s ed 1 is not licenced to carry it. He submitted the c r o wn h ad p r o v ed its case b e y o nd reasonable doubt. M r. K h a u oe for the d e f e n ce h as submitted the country w as n ow a constitutional m o n a r c hy a nd discrimination in a ny f o rm w as ousted. Article 12 of the Constitution w as to the effect that all w e re entitled to a fair trial a nd that o ur l aw p r e s u m es that an a c c u s ed p e r s on is innocent until he is f o u nd guilty. He says the S o u th African Constitution through its Constitutional C o u rt h as adequately interpreted Art. 12 of Lesotho Constitution a nd case l aw dictates that L i p h a p a n g 's ( P . W . I) evidence be rejected for the reason that a c c u s ed 1 b r o u g ht the firearm to the police voluntarily a nd n ot u n d er arrest. Ballistic e x p e c t 's e v i d e n ce did n ot c o n n e ct the g un w i th the cartridges - or for that m a t t er " S L R" or " S L" n or is it k n o wn w h at t y pe firearm w as p l a c ed b e f o re the court. E v i d e n ce w as that bullets c o u ld be u s ed for a ny self-loading rifle n or w as there a ny e v i d e n ce of h ow the ballistic expert M a j or T e l u k h u n o a na c a me by the bullets. He s a ys there w as no positive identification of a c c u s ed 1. He s a ys T h a bo ( P . W . 4) said he h e a rd the s o u nd of g u ns on either side. Q u e r r i ed by the court c o u n s el s a ys this w as evidence-in- chief at the e nd of the witnesses evidence. He says that a c c u s ed 1 w as s e en l o a d i ng the g un c a n n ot be b e l i e v ed for the w i t n e ss w as so far a w ay he c o u ld n ot h a ve s e en w h at h a p p e n e d, exactly. He s a ys the w i t n e ss w as lying to implicate the a c c u s ed falsely. M r. K h a u oe h as said the court w as seriously to c o n s i d er w h e t h er L i p h a p a ng ( P . W . 1) h ad n ot violated a c c u s ed 1's constitutional rights a nd i m m u n i t i es by questioning a nd d e m a n d i ng a n s w e rs f r om a c c u s ed 1 a l t h o u gh a c c u s ed h ad elected not to s ay anything. M r. K h a u oe h as also said that M a s a k a l e 's p e o p le h ad g o ne b e h i nd Seeiso's people thus trickering the fighting. C o u n s el s a ys a t t a c k ed p e o p le h a ve right of self- d e f e n c e. In so far as rights a nd i m m u n i t i es of an a c c u s ed p e r s on are c o n c e r n ed w h i ch M r. K h a u oe calls constitutional, he h as m e r e ly re-iterated d e m a n ds of the c o m m on l aw w h i ch the constitution h as afrirmed. I w as a little in a q u a n d a ry w h e t h er c o u n s el for the d e f e n ce m e a nt D / S g t. L i p h a p a n g 's ( P . W . 1) e v i d e n ce w as to be rejected o ut of h a nd or s i m p ly e x c l u d e d. I do a g r ee that a c c u s ed 1 h ad e x p r e s s ed the unmistakable desire that he did n ot w i sh to s ay a n y t h i ng in r e s p o n se to i n f o r m a t i on w h i ch P . W . I s o u g ht f r om h i m. It w as up to a c c u s ed 1 to m a i n t a in his silence. If, despite a c c u s ed 1 desiring to m a i n t a in his silence P . W . I h a d, by cajoling, or p r o m i s es of i m m u n i ty f r om prosecution got r o u nd a c c u s ed 1's a v o w ed stance n ot to explain, this w o u ld be i m p r o p e r ly o b t a i n ed e v i d e n ce a nd the court w o u ld e x c l u de it. Similarly, if by u n d ue influence or c o m p u l s i on P . W . I h ad m a de a c c u s ed 1 c h a n ge his m i n d, this e v i d e n ce w o u ld also be e x c l u d e d. N o t h i ng on r e c o rd s h o ws that a ny explanation by a c c u s ed 1 w as o b t a i n ed falsely or by force. In the e v e n t, a ny explanations a c c u s ed 1 m a de to P . W . I notwithstanding a c c u s ed 1's reservations to the contrary, w e re voluntary a nd admissible. M r. K h a u oe h as also said that the e v i d e n ce of the ballistic expert h as in no w ay i m p r o v ed the c r o wn c a se for the expert's e v i d e n ce h as n ot c o n n e c t ed the g un with the cartridges n or h as a clear distinction b e en d r a wn b e t w e en firearms " S L R" a nd " S L" m a k i ng it difficult to k n ow w h at firearm w as p l a c ed b e f o re court. Importantly, there is no e v i d e n ce of h ow M a j or T e l u k h u n o a na c a me by the cartridges. W h i le a g r e e i ng w i th M r. K h a u oe in s o me respects, the court m u st caution that w h at w as a d m i t t ed b e f o re this court w as exhibit " C" b e i ng s t a t e m e nt of the w i t n e ss M a j or T e l u k h u n o a n a. P a r a g r a ph 3 of the s t a t e m e nt reads: On the 2 nd D e c e m b e r, 1 9 92 D / T p r. M o s u h li h a n d ed in the f o l l o w i ng for e x a m i n a t i o n- ( 1) 1 x 7.62 mm L I AI rifle serial n u m b er AD 6 8 0 8 2 5 2. ( 2) 5 x 7.62 mm x 5 1 . o mm fired cartridge c a s e s. P a r a g r a ph 4 I e x a m i n ed the rifle para. 3 ( 1) a nd f o u nd it in g o od w o r k i ng condition, I also fired cartridges therein for test p u r p o s es P a r a g r a ph 5 On m i c r o s c o p ic e x a m i n a t i on I f o u nd that the fired c a s es para.3 ( 2) h a ve b e en fired in the rifle p a r a. 3 ( 1 ). It m ay be said this s t a t e m e nt dispels M r. K h a u o e 's queries, especially c o n s i d e r i ng that E x h. " C" is a d m i t t ed e v i d e n c e. So far as this c o u nt is c o n c e r n e d, c o n s i d e r i ng the c o n t e nt of E x h. " C" a nd in the e v e nt of accepting s a m e, this court will be c o n c e r n ed w i th w h e t h e r, in addition, there w as C r o wn e v i d e n ce that a firearm by so-and-so w as u s ed as a result of w h i ch fatalities w e re c a u s ed resulting in the d e a th of d e c e a s ed p e r s o ns in C o u nt 1 a nd C o u nt 11 of the c h a r ge sheet. A l s o, it a p p e a rs to this c o u nt w h e re there is e v i d e n ce that d e c e a s ed p e r s o ns w e re shot d e ad a nd there is no e v i d e n ce of w ho shot t h em or w h at sort of firearm w as u s e d, in s u ch c a s es forensic e v i d e n ce is a necessity - especially w h e re s p e nt cartridges are f o u nd on the s c e ne of the c r i m e. In this c a se there is e v i d e n ce of w ho carried the g un a nd shot the fatal shots. I do not think that the point that a c c u s ed 1 w as n ot positively identified w as well taken. A c c u s ed 1 w as s e en in b r o ad daylight by w i t n e s s es w ho k n ew h i m. He w as not only seen by P . W . 7, there w as also e v i d e n ce that he shot Tlali ( c o u nt 1) a nd Ntsibiseng (count 2 ). In a ny e v e nt a c c u s ed 1 h as n ot d e n i ed that he w as n ot on the s e en of the c r i m e. It is also incorrect to c l a im that P . W .4 c l a i m ed he h e a rd s o u nd of g u ns on either side - there w as no s u ch e v i d e n c e. T h at M a s a k a l e 's p e o p le h ad g o ne b e h i nd S e e i s o 's p e o p le in an encircling m o v e m e nt a nd an e v e nt w h i ch triggered the fighting, the s u g g e s t i on w as categorically d e n i ed by c r o wn e v i d e n ce a nd the court believed c r o wn w i t n e s s es in this r e g a r d. As for attacked p e o p le b e i ng entitled to self-defence, there w as no e v i d e n ce by the c r o wn that Seeiso's m en w e re attacked. On the contrary, the c r o wn d i s p r o v ed a ny p r e t e n d ed or simulated attack s a y i ng the o n ly r e a s on M a s a k a l e 's p e o p le w e re w a l k i ng as t h ey did w as to go to Tšita(P. W.7) to find o ut f r om h im w hy he h ad sent a m e s s a ge calling t h em to h i m. T h e re w as also c r o wn e v i d e n ce w h i ch the court believed that w h en shooting c o m m e n c ed M a s a k a l e 's p e o p le h ad d o ne n o t h i ng to p r o v o ke the shooting. F a c ts of this c a se are n ot that c o m p l e x. A l t h o u gh s o me c r o wn w i t n e s s es a t t e m p t ed to d e ny that M o n n a m o h o l o 's ( w h e re the conflict o c c u r r e d) w as n ot in dispute, there w a s, in the v i ew of this court, sufficient e v i d e n ce that the a r ea w as in dispute. F or o ne thing is n ot u n d e r s t o od h ow a nd w hy the police o p e n ed the area for c o m m on grazing if there w as no dispute. M o re than this, it is to be u n d e r s t o od there w as no m o r a t o r i um of freezing p e r i od - the are w as o p en for c o m m on g r a z i ng by Seeiso's a nd M a s a k a l e 's stock. T h e re w as also e v i d e n ce that in the s a me area M a s a k a l e 's caretakers h ad i m p o u n d ed Seeiso's stock a nd instead of p a y i ng p o u nd fees Seeiso's p e o p le affected by the i m p o u n d i ng h ad g o ne to consult the police at S e f i k e n g. N o w, it is n ot u n d e r s t o od h ow M a s a k a l e 's grazing caretakers i m p o u n d ed stock w h en according to t h e m, the area w as o p en for public or c o m m on g r a z i ng by Seeiso's a nd M a s a k a l e 's subjects. T he question m ay also be a s k ed as to w h o se stock in particular w as i m p o u n d e d. A c c o r d i ng to P . W .6 Mofoka M a s a k a le on the M o n d ay before the events of the trial, a l o ng w i th K o l i s a ng a nd M n o n o, t h ey h ad i m p o u n d ed Seeiso's cattle. C r o s s - e x a m i n ed by M r. P h e ko the w i t n e ss h ad said in g o i ng to Tšitathe r e a s on t h ey a v o i d ed Seeiso's p e o p le w as firstly that t h ey h ad i m p o u n d ed Seeiso's cattle a nd s e c o n d ly Seeiso's p e o p le h ad driven a w ay their cattle a nd h ad k n o wn nothing of fighting on the M o n d a y. T h is w i t n e s s ed e v i d e n ce is substantially the s a me as the e v i d e n ce he g a ve at the P . E. A witness that supports P . W .6 c o n c e r n i ng the i m p o u n d i ng of stock is T h a bo M a q o k e la ( P . W . 4 ). He told this court t h o u gh he h ad not k n o wn there w as friction b e t w e en M a s a k a l e 's a nd Seeiso's subjects he h ad k n o wn of a g r a z i ng dispute a nd he said this u n d er cross-examination by M r. P h e k o. P r e s s ed he said he h ad n ot said there w as fighting a nd cattle h ad b e en i m p o u n d e d. He denied he h ad said at the P . E. there w as s o me fighting t h o u gh he a d m i t t ed the rest of the p a r a g r a ph attributed to h im at the P. E. He also said by saying no fighting t o ok p l a ce he w as referring to a period w h en Seeiso's cattle w e re i m p o u n d e d. He also said he c o u ld n ot s ay w h e t h er or not there w as fighting for t h en he w as in K i m b e r l e y. Actually, at the P. E. P . W .4 h ad said the dispute b e g an w h en M a s a k a l e 's p e o p le i m p o u n d ed cattle f r om Seeiso's for grazing at a r e s e r v ed a r ea at T h a b a n e n g. T h e re h ad b e en a fight a nd cattle w e re i m p o u n d e d. T he police h a d, h o w e v e r, released the cattle w i t h o ut p a y m e n t. He also said all the a c c u s ed p e r s o ns w e re h e r d i ng cattle at Ha M o n n a m o h o l o, a p l a ce in dispute b e t w e en the chief of M a s a k a le a nd that of Seeiso's. T h e re w as considerable fuss a nd furore b e t w e en the t wo versions as to w h i ch w as w h i ch a nd the w i t n e s s ed credibility s e e m ed in j e o p a r d y. T he question is w h e t h er a dispute necessarily entails friction. S o m e t i m es it d o es a nd other times it d o es not - it d e p e n ds on the conditions a nd parties involved. It is e v en possible that the w i t n e ss m e r e ly h e a rd on w as told of the e v e n ts w i t h o ut w i t n e s s i ng t h em himself. At the P . E. there is no s p a ce for q u e s t i on a nd a n s w er w h i ch is d o ne at the trial. It is quite possible as the w i t n e ss h as said w h e t h er or not there w as fighting he c o u ld n ot k n ow for at the material t i me he w as in K i m b e r l e y. T h is court finds that on material issues the w i t n e ss w as truthful. It a p p e a rs that at the P . E. C o u nt 1 referred to the d e c e a s ed N t s i b i s e ng M a s a k a le w h i le C o u nt 11 involved the d e c e a s ed Tlali M a q o b e. A l s o, unlike in the trial, L e fu Sefali w as a c c u s ed 1 a nd M o l i b o ea T h e ko a c c u s ed 2. F or r e a s o ns that are n ot clear M a s a k a le M a s a k a le w ho w as P . W .2 at the P . E. w as n ot called in e v i d e n ce at the trial. Mofoka M a s a k a le w ho is P . W .6 herein testified at the P . E. ' W h en the first shot w as fired we h ad n ot d o ne a n y t h i ng to these p e o p l e, neither h ad we talked to t h e m/ A l s o, a c c u s ed 2 ( a c c u s ed 1 at the trial) did n ot w a rn us that he w o u ld s h o o t, i n s t e ad he fired killing Tlali in C o u nt 11 ( n ow c o u nt 1) ' A g a i n, ' we h ad n ot g o ne there to fight;' ' we w e re a t t a c k ed for no r e a s on at all a nd o ur p e o p le w e re killed for no r e a s on at all/ T h e se c a t a c l y s m ic a c c o u n ts depict utter d e f e a t i sm a nd hopelessness. At the trial the s a me pathetic, heart-rending a nd shall I s ay h a r r o w i ng a nd p o i g n a nt s e n t i m e n ts w e re repeated. T h e se tragic a c c o u n ts w e re g i v en at the P . E. a nd r e p e a t ed b e f o re this court by P . W .7 w i th rather u n c a n ny repetition a nd regularity. After dealing w i th the e v i d e n ce P . W .4 a nd P . W . 6, the e v i d e n ce P . W .5 a nd P . W .7 n e ed be p ut on the spotlight. P . W . 5 's ( P . W .6 at the P. E.) e v i d e n ce w as v e ry short at the P . E. a nd n ot without c a u se for he says he did not see the fighting a nd r u s h i ng to the s c e ne he h ad f o u nd Ntsibiseng a nd Tlali w e re fatally shot. In evidence-in-chief his e v i d e n ce w as as short a nd uneventful. A nd yet he w as subjected to a tideously l o ng d r e a ry cross- e x a m i n a t i o n. As for P . W .7 ( P . W .5 at the P . E . ), his e v i d e n ce w as n ot that l o ng at the P . E. a nd yet at the trial the c r o s s - e x a m i n a t i on w as so sustained it w as as if e v e r y t h i ng h ad r e v o l v ed a r o u nd P . W . 7. At the P . E. he h ad said the s o u r ce of trouble w as M a s a k a l e 's cattle grazing at M o n n a m o h o l o 's w h i ch falls u n d er M a s a k a l e 's jurisdiction. He also testified M o n n a m o h o l o 's w as in dispute b e t w e en t wo chiefs. He a d m i t t e d, as I h a ve s h o wn a b o v e, that p r e v i o u s ly there h ad b e en fighting b e t w e en M a s a k a l e 's a nd Seeiso's subjects in w h i ch o ne M a j o ro h ad d i ed in 1 9 9 0. It is true while the witness said before this court M o n n a m o h o l o 's w as not in dispute he h ad said at the P. E. M o n n a m o h o l o 's in dispute. It is also true that at the P . E. he d id n ot m e n t i on T h a b a n e n g. I n d e ed at the P . E. he h ad said he did n ot k n ow w hy M a s a k a l e 's p e o p le w e re a t t a c k ed contrary to his denial of this t e s t i m o ny in this court. It h as to be r e m e m b e r ed that P . W . 7 's e v i d e n ce at the P . E w as g i v en in 1 9 94 a nd the witness w as c r o s s - e x a m i n ed of the e v e n ts in F e b r u a r y, 1 9 98 after a p a s s a ge of r o u g h ly four ( 4) years. B e s i d e s, this court d o es n ot think that P . W . 7 's points of d e p a r t u re are material to this inquiry n or is the court p e r s u a d e d, l o o k i ng at the e v i d e n ce as w h o l e, that P. E.7 is b i a s ed against a c c u s ed p e r s o n s. T he d e f e n ce h as raised self-defence as availing a c c u s ed p e r s o ns in that M a s a k a l e 's subjects h ad g o ne b e h i nd S e e i s o 's subjects to attack t h em a nd in the result Seeiso's p e o p le w e re entitled to self-defence. T he c r o wn h as also s u b m i t t ed that a c c u s ed p e r s o ns on the principle of c o m m on p u r p o se are all guilty in c o u nt 1 a nd c o u nt 1 1. R a t h er significantly, C o u nt 1 11 w as n ot a r g u e d. T h is c o u rt n e e d n 't w a s te t i me on t he c l a im of self-defence raised by the d e f e n c e. It is true s e a r c h i ng q u e s t i o ns w e re directed at C r o wn w i t n e s s es in this regard. As I h a ve s h o wn a b o v e, there w as plenty of e v i d e n ce that the attack in all its ruthlessness w as u n p r o v o k e d, uncalled for a nd u n w a r r a n t ed in the c i r c u m s t a n c e s. T he c r o wn h a d, in addition, n e g a t i v ed a nd d i s p r o v ed the p r e t e n d ed a nd s i m u l a t ed claim of self-defence. It is in particular to be n o t ed that there w as n o t h i ng for w h i ch a c c u s ed p e r s o ns w e re d e f e n d i ng t h e m s e l v es for n o ne of t h em w e re t h r e a t e n ed or u n d er g e n u i ne belief that their lives w e re threatened. E v en t h o se of t h em w ho w e re injured sustained the injuries, according to crown evidence, as a result of stone - throwing to repel further attacks on fatally injured comrades who required assistance. So far as common purpose is concerned, it is apparently based on necessary mens rea - an accomplice and co-perpetrator associating themselves with the crime Liability is apparently based on the concept of actus reus and mens rea. Burchell and Hunt (S. A. Criminal Law and Procedure - 2nd Ed.) at p. 431 say mens rea and the scope of mandate between the parties are synonymous in that if the associate in question had mens rea in respect of the crime actually committed by the principal offender the crime fell within the mandate and vice-versa. On the same page it is said Holmes, J. A, in S. v. Malinga, 1963 (I) S. A. 692 (A) adopted the correct approach to a party to a common purpose for the learned judge of appeal having found that the appellants acted in concert, stressed 'the liability of a socius criminis is not vicarious but is based upon his own mens rea and went on to apply the usual test of mens rea to those who had been associated in the common purpose. Moreover, it has been said association in common illegal purpose constitutes the participation - the mens rea and that there is strong authority to support the view that it is not necessary to show that each party did a specific act towards the attainment of the joint object. Moreover, that test of mens rea is applied to those who have been associated with the common purpose though the central question is always whether the crown has proved the necessary mens rea for the perpetration of the crime. A l s o, a prior a g r e e m e nt on a c o m m on p u r p o se is not required - it is sufficient if collaboration occurred on the spur of the m o m e nt a nd the association (or m a n d a t e) as the case m ay be n e ed not be express as it m ay be implied f r om conduct. It is, h o w e v e r, to be understood that the very idea of m e ns rea m ay be illusive a nd extremely misleading for m e ns rea e n c o m p a s s es culpa a nd dolus t wo t e r ms not s y n o n y m o us but divergent in their application for culpa has to do with fault in w h i ch negligence is an e l e m e nt a nd dolus h as to do with intention w h i ch m ay be constructive in its application or not so constructive or direct t h o u gh o n ce a court h as c o me to the conclusion that there w as intention w h e t h er direct or indirect the verdict w o u ld be the s a m e, i.e. m u r d e r. As to intention, e v en in circumstances of c o m m on p u r p o s e, the reasoning by H o l m e s, J. A. a b o ve a p p e a rs to be that e v en w h e re the culprits h a ve acted in concert the liability of socius criminis w as d e p e n d e nt on his o wn m e ns rea. T h e re is also authority for the proposition that m e ns rea is applied to those w ho h a ve b e en associated with c o m m on p u r p o se though the central question is a l w a ys w h e t h er the C r o wn h as p r o v ed the necessary m e ns rea for the perpetration of the crime. (I h a ve underlined). In the instant case it w as P. W.4's evidence that after the d e c e a s ed in C o u nt 1 w as shot by a c c u s ed 1 a c c u s ed 2 struck the d e c e a s ed in c o u nt 1 with a s w o r d, a c c u s ed 4 also struck the s a me d e c e a s ed with a stone. In this regard evidence of P . W .4 a nd P . W .6 is not consistent for P . W .6 says a c c u s ed 2 ( w ho w as a c c u s ed 1 at the P. E.) struck Ntsibiseng with a sharp object on the left ear; he also says Ntsibiseng w as shot on the left thigh a nd yet on p a ge 13 of the P. E. record P . W. 6 w h en he g a ve e v i d e n ce at the P . E. as P . W . 3, testified: 'Ntsibiseng h ad a w o u nd on the left n e c k/ also, 'Tlali h ad a w o u nd on the h e a d, a b o ve left ear a nd w o u nd on the left thigh.' B e f o re this court P . W .6 M o f o ka M a s a k a le ( P . W .3 at the P. E.) g a ve substantially the s a me e v i d e n ce as P . W .4 for P . W .6 told the court as to w o u n d s: Tlali: a g un w o u nd on the thigh, a s w o rd w o u nd a b o ve the left ear. Ntsibiseng: a g un w o u nd on the left side of the n e ck w h e re it joins the chest. C o n s e q u e n t ly this court finds no conflict in the C r o wn e v i d e n ce the conflict (if a n y) h a v i ng b e en created by inaccurate recording at the P . E . ). As to dolus, the central question will be w h e t h er a c c u s ed 2 after the d e c e a s ed in C o u nt 1 w as shot, by striking the said d e c e a s ed w i th a s w o rd a c c u s ed 2 h ad the n e c e s s a ry m en rea to kill the d e c e a s ed Tlali M a q o be a nd the s a me logic w o u ld extend to a c c u s ed 4 plus, of course, w h e t h er the c r o wn h ad p r o v ed s u ch an intention on the part of the a c c u s e d. R. v. R a n dl v. O r. 1 9 54 (1) S. A. 3 13 ( A . D .) a c a se w h i ch m ay be said to be on all fours with the present case; there it w as said the d e c e a s ed w as 'well built a nd p o w e r f ul a m an (Tlali w as said to be hefty), death w as d ue to h a e m o r r h a ge resulting f r om a laceration of the left f e m o r al verin. T h e re w e re t wo serious w o u n ds at the b a ck of the left leg a b o ve k n e e. A c c o r d i ng to the m e d i c al e v i d e n ce the instrument that c a u s ed the w o u n ds w as u s ed with considerable force. T he d e f e n ce h ad c o n t e n d ed the w o u nd w as n ot in a vital part of the b o d y; it w as also c o n t e n d ed a c c u s ed did n ot k n ow d e c e a s ed w o u ld b l e ed to death. T he court h a d, h o w e v e r, c o n c l u d ed it s e e m ed the 1 st appellant in o r d er to effect his e s c a pe h ad inflicted the w o u nd w i th ruthlessness w h e t h er death resulted or not. In the s a me c a se Centlivres, C. J. is q u o t ed as h a v i ng said all that w as required w as the appreciation that there is s o me risk to life in the action c o n t e m p l a t ed c o u p l ed w i th r e c k l e s s n e ss as to w h e t h er or n ot the risk is fulfilled in d e a th - s ee Huebsch 1953 (2) S. A. 561 T he l e a r n ed C h i ef Justice h ad p r o c e e d ed to s ay a l t h o u gh the w o u nd w as n ot in w h at in usually r e g a r d ed as a vital part of the h u m an b o d y, (as w as Tlali's w o u n d) the m a n n er in w h i c h, a nd the vigour w i th w h i ch it w as inflicted m u st h a ve m a de it a p p a r e nt to the first appellant that it w o u ld constitute a g r a ve d a n g er to the life of the d e c e a s e d. N e e d l e ss to say the D r. in the instant c a se h ad f o u nd d e a th w as d ue to a c o m b i n a t i on of t wo factors n a m e l y, ' G u n s h ot w o u nd ( L) thigh a nd intracranial h a e m o r r h a ge - H e ad Injury.' As to Ntsibiseng M a s a k a l e, it a p p e a rs a c c o r d i ng to the D r 's report d e a th w as d ue to ( L) H a e m o t h o r ax a nd the r e m a r ks w e r e: w as shot. It w as a r g u ed on behalf of the d e f e n ce that t h o u gh it is c l a i m ed d e c e a s ed d i ed on the s a me d ay i.e. 2 5 th N o v e m b e r, 1 9 9 2, it w as strange that in the c a se of Tlali M a q o be ( e x a m i n ed by the D r. the s a me d ay as N t s i b i s e ng M a s a k a l e ,) it w as said death h ad o c c u r r ed 5 d a ys b e f o re the e x a m i n a t i o n, w h e r e as it w as said c o n c e r n i ng Ntsibiseng m at death h ad o c c u r r ed 8 d a ys b e f o re the e x a m i n a t i on as if the t wo h ad died on different d a y s. I do not think the objection was well to taken for there was uncontradicted crown evidence that the two deceased died on 25th November, 1992 nor can it be explained why, since the crown evidence was that both accused were taken to the mortuary the same day they died, they only underwent post-mortem examination on 3 December, 1992. In the cause of this trial, the court was under the impression that 'proximate' cause of death was a requirement. A number of cases reviewed by this court shows that liability is not based on 'proximate' cause - see also S. v. Daniels En 'N Ander, 1983 (3) S. A. 275 (A. D.), a case in which 1st accused had inflicted two fatal bullet wounds on deceased and thereafter 2nd accused allegedly shot the deceased in the head as a result of which deceased died. Decision by two judges of the Appellate Division was that there was no policy considerations to exonerate the 1 st accused on the basis of possible modus actus interveniens from liability for the murder. T wo judges had held there was common purpose by two accused. 1st accused had been found guilty of murder and 2nd accused acquitted by majority because his denial of participation reasonably true. In the instant case none of the accused persons gave evidence in denial of allegations against them. There is no evidence in this case as to which of the two wounds inflicted on the deceased Tlali Maqobe caused his death - the medical evidence is that it is a combination of both. If there had been evidence to the contrary, perhaps this court would consider whether one or the other of accused 1 or 2 caused the fatal injury and on this basis consider whether one or the other of the injuries was at attempt on deceased's life or for that matter assault with intent to do g r i e v o us B o d i ly H a r m. S u ch considerations do not a p p ly in the instant c a s e. A c c o r d i ng to the c r o wn e v i d e n ce w i n ch this court b e l i e v e d, w h en a c c u s ed 1 c r o u c h ed to load the g u n, he is said to h a ve b e en flanked by his g r o up a nd included in the g r o up w e re a c c u s ed 2 a nd a c c u s ed 4. W h en a c c u s ed 1 s h ot the luckless a nd defenceless Tlali M a q o be it f o l l o ws that a c c u s ed 2 a nd 4 w e re w e ll a w a re of this. This court h as n ot in the least b e en i m p r e s s ed by the d e f e n ce intimations that Tlali M a q o be w as a R u s s i an n or w as it i m p r e s s ed by s u g g e s t i o ns w h i ch w e re d e n i ed by the C r o wn that the d e c e a s ed Tlali M a q o be w as n ot M a s a k a l e 's subject. T he i m p r e s s i on created, a c c o r d i ng to this, w as that b e c a u se Tlali w as alleged to be a R u s s i an it w as e x c u s a b le to eliminate h im t h o u gh at the material t i me a c c o r d i ng to C r o wn e v i d e n ce he h ad p o s ed no threat to a n y b o d y. S e c o n d l y, it a p p e a rs it w as n e c e s s a ry to get rid of h im for he w as n ot M a s a k a l e 's subject a nd h ad j o i n ed M a s a k a l e 's g r o up to fight, for he w as as w as s u g g e s t ed in c r o s s - e x a m i n a t i o n, 'troublesome a nd f o nd of fighting' T h is court c an think of no r e a s on w hy Tlali w as killed than this. T h e re is also the additional r e a s on that S e e i s o 's cattle h ad at s o me t i me previously b e en i m p o u n d ed by M a s a k a l e 's pasture caretakers of w h om Tlali w as n ot o ne or for that m a t t er Ntsibiseng. O w n e rs of the cattle in question h ad resorted to the l aw a nd their cattle h ad b e en released w i t h o ut p a y m e n t. W h o e v er they w e re they s h o u ld h a ve b e en satisfied a nd there w as no e v i d e n ce that o w n e rs of the cattle w e re either a c c u s ed 1, 2 or 4. W hy a c c u s ed 1 a nd 2 killed the t wo d e c e a s ed p e r s o ns in this c a se a nd a c c u s ed 4 associated h i m s e lf w i th these cruel d e e ds h as not b e en explained to this court s a ve believing c r o wn e v i d e n ce that it w as for nothing. T h at a c c u s ed 4 associated h i m s e lf w i th the h e i n o us a nd c o w a r d ly acts of a c c u s ed 1 a nd 2 there is no d o u bt for a c c o r d i ng to the c r o wn e v i d e n ce a c c u s ed 4 struck the d e c e a s ed Tlali w i th a stone a nd w h en he did so the b r a ve a nd c o u r a g e o us Tlali h ad n ot o n ly sustained a shot w o u nd to his thigh a nd r e m a i n ed s t a n d i ng - suffering, w h en a c c u s ed 4 struck h im w i th a s t o n e, Tlali h ad also b e en struck w i th a s w o r d. It is therefore n ot that a c c u s ed associated h i m s e lf w i th acts of a c c u s ed 1 a nd 2 only, he also actively participated. A c c u s ed 4's association a nd participation w e re p r o v ed b e y o nd r e a s o n a b le d o u bt by t wo w i t n e s s es n a m e l y, P . W .3 a nd P . W .4 w ho testified that a c c u s ed 4 struck the d e c e a s ed Tlali M a q o be w i th a stone w h i le the latter w as already mortally w o u n d e d. T h e re w as also e v i d e n ce by an e ye w i t n e ss P . W .4 that Tlali h ad an brasion on his left breast. H o w e v e r, a l t h o u gh a c c u s ed 4 associated h i m s e lf w i th the c r i me a nd participated in it a n d, a c c o r d i ng to c r o wn e v i d e n ce inflicted an injury on the d e c e a s ed Tlali, it a p p e a rs w h en the injury on the d e c e a s ed Tlali, w as c a u s e d, Tlali w as already mortally w o u n d ed for in a ny c a se the D r. h as said c a u se of d e a th w as a g u n s h ot w o u nd a nd h e ad injury. H a v i ng r e g a rd to w h at this court said a b o ut d o l us a b o v e, there c an be no d o u bt that w h en a c c u s ed 1 a nd 2 inflicted injuries on d e c e a s ed Tlali a nd N t s i b i s e ng t h ey h ad the n e c e s s a ry intention a nd w e re reckless w h e t h er d e a th resulted or n ot a n d, h a v i ng regard to the authorities q u o t ed a b o v e, the court b e i ng satisfied that the c r o wn h as p r o v ed its c a se b e y o nd r e a s o n a b le d o u b t, c o m es to the c o n c l u s i on t h a t- Count 1 B o th a c c u s ed 1 a nd 2 are guilty as c h a r g ed a nd a c c u s ed 4 is f o u nd guilty of C o m m on Assault. C o u nt 11 A c c u s ed I is f o u nd guilty as c h a r g ed a nd a c c u s ed 2 a nd 4 are f o u nd not guilty a nd they are acquitted a nd discharged. C o u nt 1 11 A c c u s ed 1 is f o u nd guilty as c h a r g ed a nd a c c u s ed 2 a nd 4 are f o u nd not guilty a nd they are acquitted a nd discharged. My A s s e s s o rs agree. G . N . M O F O LO J U D GE 12th M a r c h, 1998. O r d er T he g un a nd s w o rd are to be forfeited to the C r o w n. T he c o u rt h as d e c i d ed to deal w i th a c c u s ed 4 b e f o re a d d r e ss in extenuation. C r o wn c o u n s el h as said a c c u s ed 4 h as no p r e v i o us convictions. In mitigation of s e n t e n ce the d e f e n ce h as s u b m i t t ed the p r i s o n er is of t e n d er a g e; is s c h o o l - g o i ng a nd there is n e ed for correction a nd r e f o r m a t i on of the prisoner. C o u r t: H a v i ng t a k en into a c c o u nt the fact that the prisoner is y o u ng a nd s c h o o l - g o i ng this court b e i ng disinclined to ruin the prisoner's life by giving h im a custodian s e n t e n ce the court h as s e n t e n c ed the prisoner to six (6) m o n t hs i m p r i s o n m e nt all of w h i ch s u s p e n d ed for t wo y e a rs on condition the prisoner is n ot f o u nd guilty of c o m m i t t i ng a ny c r i me involving v i o l e n ce d u r i ng the p e r i od of s u s p e n s i o n. E x t e n u a t i o ng C i r c u m s t a n c e s :- M r. K h a u oe for the prisoners h as s u b m i t t ed a l t h o u gh the court h as rejected a c c u s e d 's d e f e n ce that M a s a k a l e 's p e o p le h ad g o ne b e h i nd S e e i s o 's m en in an encircling m o v e m e nt to pin the latter d o wn a nd p o u n ce on t h e m, this is a factor w h i c h, for p u r p o s es of e x t e n u a t i ng avails a c c u s ed p e r s o n s. A l s o, there w as a l o ng history of dispute in the area especially involving M o n n a m o h o l o 's a nd the court w as not to be u n m i n d f ul of the fact that the chief of Seeiso w as senior in r a nk to the chief of M a s a k a l e 's a nd the latter a c c o u n t a b le to the f o r m e r. M a j o ro h ad d i ed previously killed by M a s a k a l e 's m en a nd the m a t t er c o u ld h a ve c o me to a h e ad w h en Seeiso's cattle w e re i m p o u n d ed by M a s a k a l e 's rangers. In the first place, this court a g r e es that there is, a c c o r d i ng to the e v i d e n c e, l o ng d r a w n - o ut hostility b e t w e en S e e i s o 's a nd M a s a k a l e 's p e o p le a nd that, a c c o r d i ng to the e v i d e n c e, this hostility r e a c h ed a boiling point in 1 9 90 w h e re M a j o ro a subject of chief S e e i so w as killed by M a s a k a l e 's subjects. T he i m p o u n d i ng of cattle c o u ld h a ve resuscitated a nd a d d ed fuel to the fire by S e e i s o 's p e o p le ( m o st p r o b a b ly u n k n o wn to M a s a k a l e 's p e o p l e) p r e p a r i ng t h e m s e l v es for a s h o w d o w n. T h e se e v e n ts h ad correctly affected o w n e rs of the stock i m p o u n d ed but t h en as M r. K h a u oe s u b m i t t ed a w h i te m a n 's morality is not the s a me as that of tribal b l a ck m en for w h i le w h i te p e o p le a re a b le to tell w h a t 's m i ne a nd y o u r s, this c o n c e pt is blurred in the m i n ds of b l a ck p e o p le a nd especially tribesmen w ho see an injury to o ne of t h em as an injury to all of t h e m. I n d e ed as M r. K h a u oe submitted, it m i g ht be said that although for p u r p o s es of the trial a nd notwithstanding that provocation is not p er se a d e f e n c e, far-fetched as it s e e ms it m i g h t, for p u r p o s es of extenuation, avail a c c u s ed persons. I n d e ed it d o es s e em although legally only a handful w o u ld be involved in the unsettled dispute a nd i m p o u n d i ng of cattle, emotionally a nd h a v i ng regard to the tribal m ob p s y c h o l o g y, e v e r y b o dy has seen himself as involved for it w as a case of villagers' grazing rights on either side. A nd traditionally, w h en m en go to w a r, it is not those w h o se rights h a ve b e en violated that go to w a r, but all join together as a t e am to protect violated rights. As submitted by M r. K h a u o e, extenuating circumstances h a ve b e en described as a ny factor w h i ch helps to r e d u ce the m o r al (albeit not legal) b l a m e w o r t h i n e ss of an accused. T a k i ng into a c c o u nt the cumulative effect of all the factors c a n v a s s e d, the court c o me to the conclusion that there are extenuating circumstances. In M i t i g a t i on M r. K h a u oe h as said a c c u s ed I h as a wife, 4 children a nd an 80 year old m o t h er all dependent on a c c u s ed w ho is sole bread-winner. A c c u s ed h ad attended court a nd reported himself regularly. T he c r i me h ad b e en c o m m i t t ed in N o v e m b e r, 1 9 92 a nd the trial c o m p l e t ed only in M a r c h, 1 9 9 8. As for a c c u s ed 2, he h ad also o b s e r v ed conditions of this trial, w as a socius criminis t h o u gh the court for purposes of sentence d r ew no distinction. A c c u s ed h ad a wife a nd 5 children he supported. T he court h as taken into a c c o u nt all the mitigating factors favouring the prisoners but is to e m p h a s i se that it is g o i ng to h a ve to be careful to e n s u re that sentences i m p o s ed fit the crime.in order not to turn the court into a l a u g h i ng stock. T he court h as decided that unless there is a strong deterrent s e n t e n ce another flagrant episode could materialise. M en m u st therefore be e n c o u r a g ed at all levels to society to seek justice in the courts of l aw all of w h i ch are o p en to all at all times a nd not to advert to taking the l aw into their h a n ds for this could result in utter c h a os a nd a n a r c hy a nd the u n d e r m i n i ng of the civil society a nd orderly administration w h i ch is the b e d r o ck a nd fountain of o ur civilized c o m m u n i t y. B e s i d e s, too m a ny p e o p le in this country die of firearms w h i ch are so easily available it is o n ly those w ho s hy of t h em that do not p o s s e ss t h e m. P o s s e s s i on of firearms e x c e pt by the security a rm of g o v e r n m e nt or truly responsible citizens is an affront to the c o n c e pt of respect for life a nd it b e h o v es this court to discourage the u se of s u ch d e a d ly instruments. A c c o r d i ng to the e v i d e n c e, the g un w i th w h i ch a c c u s ed I shot d e c e a s ed p e r s o ns is the exclusive w e a p on of the police a nd the military p e r s o n n el a nd yet n o ne h a ve claimed it in the h a n ds of an unlicensed user. A m e s s a ge n e e ds to go out that this a nd other f o r ms of laxity in the control of firearms will not be tolerated. As I h a ve said a b o v e, h a v i ng t a k en into a c c o u nt all the mitigating factors in this c a se the least s e n t e n ce the court c an i m p o se is:- C o u nt 1 A c c u s ed I is s e n t e n c ed to 20 y e a rs i m p r i s o n m e n t; a c c u s ed 2 is also s e n t e n c ed to 20 y e a rs i m p r i s o n m e n t. C o u nt 11 A c c u s ed 1 is s e n t e n c ed to 20 y e a rs i m p r i s o n m e n t. C o u nt 1 11 A c c u s ed 1 is s e n t e n c ed to o ne ( 1) y e ar i m p r i s o n m e n t. All sentences are to r un consecutively a nd are to be served w i th effect f r om 25 N o v e m b e r, 1 9 9 2. J U D GE 10th M a r c h, 1998. M r. L e n o no For the C r o w n: For the Defence: M r. K h a u oe