R v Ralibolu and Others (CRI/I 84 of 90) [1991] LSCA 46 (26 April 1991)

CRI/t/84/90 IN THE HIGH COURT OF LESOTHO In the m a t t er between:- R EX and LEETO RALIBOLU KHATHATSO RALIBOLU MOROBI RALIBOLU 1st Accused 2nd Accused 3rd Accused J U D G M E NT Delivered by the Honourable M r. J u s t i ce J. L. Kheola on the 26th d ay of A p r i l, 1991 At the commencement of t h is trial the C o u rt w as informed that one Khothatso Ralibolu who w as accused number three at the preparatory examination p r o c e e d i n gs had absconded and that d e s p i te a very d i l i g e nt search m a de for him he could not be f o u n d. The Crown Counsel applied f or a separation of t r i a ls so t h at the trial of A3 can c o me at a later stage. For convenience 1 shall refer to Khothatso Ralibolu as A 3. T he accused are charged with m u r d e r, it being alleged that upon or about the 26th d ay of December, 1989 and at or near Kolbere /2 - 2 - in the d i s t r i ct of Thaba-Tseka. t he accused murdered Lefa M o t l o m e l o. They pleaded not guilty. M o k e te Motlomelo (P. W.1) testified t h at on t he 26th December, 1989 he and t he deceased w e nt to Kolbere v i l l a g e. They had been sent there by their uncle Tsehla to cut trees with which he intended to build a hut at h is c a t t l e - p o s t. On their arrival at Kolbere they found t h at o ne Botha from whom they w e re to g et the t r e es w as not in the v i l l a g e. They decided to go to a f e a st at the home of Lekhooa Tsoloane w ho w as P. W.3 at t he preparatory examination (P. E) and whose d e p o s i t i on w as admitted in evidence in t h is C o u rt in t e r ms of section 227 of the Criminal Procedure and Evidence A ct 1931. P. W. I said t h at when they approached their d e s t i n a t i on they m et A3 w ho w as scolding them and accusing them of trespassing upon h is arable land. Although the deceased denied t he accusation A3 struck him once on the head with a "lebetlela" stick. Lekhooa Tsoloane intervened and t he f i g ht stopped. The stick used by A3 w as fairly thick because it w as one and half inches thick and about one yard long. Thereafter P. W.1 and the deceased went to the f e a st at Lekhooa's home. W h i le they w e re there A1 came to them and ordered the deceased to go home. In reply the deceased said A1 had no right to tell him to go home. P. W. I then asked the deceased that they should go to their h o m e. The deceased agreed. They walked away b ut when they were behind t he h o u se A, c a me to then and struck t he deceased on t he head with a "lebetlela" stick. He struck him /3 - 3 - once. P. W.1 attempted to intervene but noticed that there were many people who were attacking thorn. They ran away but before they did so A2 had struck the deceased on the arms with a stick. When they came home P. W. I noticed that the deceased had a bruise on the frontal bone and another on the beck of the head, there w as an abrasion on the waist and a swelling on the left forearm. On the following day the mother of the deceased incised the bruises on the need because the deceased complained of severe pain and it w as hoped that if blood came cut pain would be eased. However, no blood came out and the deceased died later that evening. P. W.1 w as holding an axe while the deceased held a saw. Phapang Tsoloane (P. W.2) testified that he attended the feast at the home of Lekhooa who is his younger brother. There were many people at the feast and P. W.1 and the deceased were there. He saw them standing about fifteen paces from him and invited them to come and take food. They refused. Thereafter he went into the house but after some time he w as informed that there w as a fight outside. When he got out he saw that P. W.1 w as being chased by Al and A 3. He intervened and enabled P. W.1 to escape. He never saw the deceased. Lekhetho Tsoloane (P. W.3) w as also attending the feast. While he w as there he witnessed a fight between the deceased and A 1. The latter struck the former on the head with a stick two times. He did not see clearly whether the two blows actually landed on the head because the deceased w as warding them off with his hands/arms. The deceased ran away and A1 chased him for a short distance before /4 - - giving u p. P. W.3 did not see any a xe or saw on t h at d ay and he is positive that the deceased had no weapon in h is h a n ds at the time A1 w as assaulting him. P. W.4 Lekhetho Matjobo testified that he is a headman u n d er Chief Seelane Seelane ( P . W . 5 ). On the 26th D e c e m b e r, 1989 t he three accused came to h is place accompanied by m a ny o t h er p e o p l e. They gave him two swords and explained t h at the deceased and P. W.1 had attacked them with those w e a p o n s. They also g a ve him three sticks which they (accused) said they used when the deceased and P. W.1 attacked t h a n. T he accused did not e x p l a in to him that the deceased trespassed on the field of A 3. P. W.4 says that he transferred t he accused and the w e a p o ns to Chief Seelane Seelane w ho c o n f i r ms that the accused came to h is place together with the w e a p o ns mentioned a b o v e. They all agreed that they f o u g ht with t he deceased and P . W . 1. A2 explained that he did not know the c a u se of their f i g ht but he w as of the opinion that he w as under the influence of itoxicating d r i n k s. T he other accused did not give him a clear a n s w e r. Trooper Mokete (P. W.6) w e nt to Manamaneng airstrip w h e re he found the dead body of t he d e c e a s e d. He examined it and found the following injuries: a wound on the top of the head, a wound on the left forearm, a wound on the left side of the head, a wound on the back of the neck, a wound on t he scapula and on t he left side of the c h e s t. On the 2nd January, 1990 ho gave the dead body to t he pilot w ho flew it to Mokhotlong Mortuary f or post-mortem e x a m i n a t i o n. The body w as already in an advanced state of d e c o m p o s i t i o n. - - It was common cause that the weapons which were given to the police by Chief Seelane could not be traced and were not produced in evidence. The doctor who carried cut a post-mortem on the body of the deceased formed the opinion that death w as subdural haematoma on the right side of the head. There w as sagittal fracture of the frontal bone. The doctor d o es not refer to the other injuries which were observed by the police officer. The deposition of 'Makhethang Mosoeu (who w as P. W.2 at the preparatory examination) w as admitted by the Defence Counsel as evidence before this Court. She deposed that on the day in question she went to feast at the home of Lekhooa Tsoloane. She saw the deceased and P. W.1 as well as the girls and two women, 'Makhahliso and Manthabiseng. These people were on a hill above the village. She went up to them end hoard 'Manthabiseng and 'Makhahliso say: "Aubuti Lefa, stand up and go, you won't be called a coward." Deceased (Lefa) did not say anything. The witness says that she also spoke to the deceased and asked him to stand and g o. He said he w as resting. They left him there and returned to the village. On their way she noticed that the deceased, P. W. I and other boys were being chased by many men including the accused. She identified one Mokotsolane. At that time those people were actually chasing P. W.1, she did not see the deceased. At the time she saw the deceased sitting there he w as not holding anything in his hands. P. W. I w as also not holding anything. /6 - - The accused elected to give sworn statements. A1 says that he saw when the deceased and A3 were fighting in the village. He intervened and the fight w as stopped. He asked A3 why they were fighting. A3 said they had walked across his cultivated land. After the fight was stopped the deceased and P. W.1 went to their village which is about five or six kilometres away. They were not hiding anything in their hands. At about 4.00 p.m. he saw the deceased at Lekhooa's place and both of them had swords. When he asked them why they had come back after the first fight they attacked him alleging that he w as involved in the first fight because A3 is his brother. A1 says that the deceased tried to hit him with a sword but he managed to ward off that blow with his stick. He hit back and struck the deceased on the right hand. As a result of that blow the deceased dropped his sword on the ground. He d e n i es that he hit the deceased on the head. A1 says that when he asked the deceased and h is companion to go home the deceased asked him when he had started to teach him when he should go home and then he attacked him. A2's version is that after the first fight between the deceased and A3 he again saw the deceased and P. H.1 at the feast at the home of Lekhooa. They were offered food but declined the offer. Later he noticed that there w as a fight between A1 and the deceased; he tried to intervene but P. W.1 attacked him with a sword. He struck P. W.1's hand and the sword fell d o w n. He never had any fight with the deceased. After the fight the weapons used by the - 7 - deceased and P. W.1 were collected and taken to the headman. It is common cause that the deceased w as struck on the head with a stick by A3 who h as absconded and w as still at large when this trial started. A separation of trial w as ordered and the trial of A1 and A2 proceeded. Now the first question to be decided is what effect the wound inflicted by A3 had on the deceased. This question has to be decided first because the Crown has failed to prove common purpose between A3 on the one hand and A1 and A2 on the other hand. A1 and A2 had nothing to do with that first fight between A3 and the deceased. The wound inflicted by A3 seems to have had some effect because after that he w as seen sitting on the side of a hill and complaining that he felt tired and w as resting. I am of the opinion that the sudden tiredness must have been caused by that wound. There is evidence by P. W.3 that during the second fight he saw when A1 struck the deceased twice on the head with a stick, however, the witness is not sure that the blows actually landed on the head of the deceased because he warded off the two blows with his arms. After that the deceased ran away and w as later chased and assaulted by many people. The wounds which were found on the body of the deceased by Trooper Mokete were many and according to the evidence before me some of them must have been caused by those many people who chased and assaulted the deceased. For instance the wounds on the back of the head, on the left side of the head, . on the left scapula and on the left side of the chest. There is no evidence that the said three wounds were inflicted by any of the accused. /8 - - In h is d e p o s i t i on Lekhooa Tsoloane deposed that in the f i r st f i g ht the deceased w as struck on the head with a stick by A 3. After that he advised the deceased and P. W.1 to go to their home. They went up the ridge in the d i r e c t i on of their home. They w e re not holding anything in their h a n d s. From there he w e nt to h is h o me w h e re he had a f e a s t. T he deceased and P. W.1 and two o t h e rs arrived. He invited them to c o me into the house to eat food. They refused. He w e nt into the h o u s e. When he c a me out fighting had d e v e l o p e d. A1 struck t he deceased on the head with a stick. He rushed to them and caught A1 and asked him w h at he w as d o i n g. The deceased ran away but fell d o w n. The evidence of Lekhooa Tsoloane is confirmed by P. W.1 t h at A1 did strike the deceased on the head with a stick once. It m ay be that P. W.3 is referring to a d i f f e r e nt occasion w h en the deceased w as struck twice and appeared to be warding off the b l o ws with h is a r m s. He w as not sure that at that time t he stick did in f a ct reach their t a r g e t. I am convinced t h at A1 struck t he deceased on the head with a stick and not on the hand as he a l l e g e s. There is overwhelming evidence that at the time he w as struck on the head, t he deceased w as not holding anything in h is h a n d s. He w as not holding any sword, saw or an a x e. The b l ow inflicted by A1 had a d e v a s t a t i ng effect on the deceased because it even caused him to fall d o wn when he attempted to ran away. M r. P e e t e, attorney f or the d e f e n c e, d e a l i ng with common purpose, referred t h is Court to the c a se of R. v. Zwakala and another, 1976 L. L. R. 221 whose head note reads as f o l l o w s: - 9 - other if they act in pursuance of the same purpose and have agreed to that purpose. The agreement may commence on impulse without any prior consultation. For sufficient common purpose to exist the persons need not plan together to kill the deceased. The basis of the guilt of a Socius criminis is however his own m o ns rea. Where common purpose to murder is established it does not necessarily follow the same intent must be imputed to all involved parties. In the circumstances of the case the presence of intent on the part of the accused found to be manifest by the seriousness of the assault, the weapons used and the part of the body where injuries were inflicted." He submitted that while it is not in dispute that there w as trouble between the accused and the deceased and P. W.1, it is still incumbent upon the Crown to show beyond reasonable doubt that one or the other of the two accused inflicted the wounds that caused the death of the deceased. The case against A3 having been withdrawn (actually, trials having been separated) the acts of A3 cannot be imputed to the two accused unless the indictment alleged specifically that they action in concert with A 3. In the circumstances each accused car only be hold criminally responsible for h is own acts and upon his own mens rea. He submitted that in this case the Crown has failed to prove that the two accused had planned with A1 to attact the decceased. I agree with Mr. falied to prove common purpose. However, in my view the Crown has proved beyond any reasonably doubt that A1 caused the subdural haematoma that was the cause of the death of the death. Or even if A3's blow had had an effect on the brain of the daceased. A'1's blow accelerated the death of the deceased. In the view that I have taken it had a devastating effect which felled the deceased. I am of the view - - that the Crown h as proved that but f or A 1 's conduct the deceased would not have died when he d i d. (See Hunt: South African Criminal Law and Procedure, V o l. II pp. 3 2 5 - 6 ). I have formed the opinion t h at the self d e f e n ce raised by A1 h as been proved to bo f a l se beyond any reasonable d o u b t. T he impression one g e ts from the evidence is that A1 w as aggressive w h en he noticed that the deceased had c o me back with other people after the f i r st f i g ht had been stopped. He went to them and ordered the deceased to go h o m e. The deceased said that A1 had no right to tell him when to go to h is h o m e. It w as at t h is juncture that A1 attacked the d e c e a s e d. A1 is not telling the truth t h at the deceased attached him with a sword when he asked him why they had c o me back after the f i r st f i g h t. He is not telling the truth that the deceased and P. W.1 w e re armed with swords. All the Crown w i t n e s s es who testified before this Court did not see the swords and w e re quite sure that the deceased and P. W.1 w e re unarmed. They w e re not holding any saw or a x e. The fact that after the fight the accused and some other people gave the two swords allegedly found at the scene of the f i g ht w as an attempt to falsely implicate the deceased and P. W.1 and an attempt to boost the accused's self- d e f e n c e. When the deceased and P. W.1 were seen standing outside the house of Lekhooa Tsoloane they were unarmed, although they did not accept the offer of food w a de to them, there is no evidence that they acted in a provocative way t o w a r ds anybody. It w as A1 w ho acted in a provocative way when he ordered them to go to their h o m es and attacked them. He had no right to expel them. /11 - - The case against A2 is supported by the evidence of one eye-witness i.e. P. W.1. I am of the opinion that the evidence of P. W.1 is unreliable because at the relevant time he w as also being attacked by a m o b. He said that when they left the home of Lekhooa he was walking infront of the deceased. He looked back and saw when A1 struck the deceased on the head with a "lebetlela" stick. He tried to intervene but realised that there were many people attacking them. He ran away. It seems to me that he did not have a good chance to observe the events. In any case A2 d e n i es this and gives an explanation that he was at the kraal when the fight started. People who were fleeing came to him and P. W.1 attacked him. He hit him on the hands forcing him to drop his weapon. I think his story may be reasonably possibly true. I doubt very much that he saw well that P. W.1 w as armed with a sword. However, I am of the opinion that the doubt I have regarding the evidence of P. W.1 must be exercised in favour of A 2. In the result I come to the conclusion that A1 had the intention to kill in the form of d o l us eventualis. I accordingly find A1 guilty of murder. A2 is found not guilty. My assessors agree. J. L. KHEOLA JUDGE 26th April, 1991. - - EXTENUATING CIRCUMSTANCES I found that there was no premeditation and that the intention the accused had w as in the form of d o l us eventualis. These two factors are extenuating circumstances. SENTENCE:- In passing sentence I took into account that the accused is a first offender, he is married with five children and that he is an uneducated and unsophisticated Mosotho peasant living in the rural areas where the use of these heavy "lebetlela" sticks is a common occurrence. They are traditional weapons that people go about in the villages holding them. Be that as it may it is the duty of this Court to protect the community from unlawful attacks with such weapons especially where a person has been killed. A deterrent sentence must be imposed. In the result the accused is sentenced to seven (7) years' imprisonment. J. L. KHEOLA JUDGE 26th April, 1991. For Crown - M i ss Moruthoane For Defence - Mr. Peete.