Herder convicted of culpable homicide over Christmas Day killing

Edit Phakela

…six co-accused acquitted

Kabelo Masoabi

ACTING High Court Judge ‘Manapo Motebele has convicted livestock herder Koakoa Sefale of culpable homicide for the shooting death of fellow herder Fihlang Nkopane, and acquitted six men who were charged with him.

The acquitted men are Moleboheng Sefale, Thabiso Tholong, Relebohile Motsiri, Mokhethi Matefane, Tumelo Mapoulo and Thabang Tholong.

Mr Nkopane was shot dead at a cattle post in Ha Nkopa Tšehlanyane, Leribe, on Christmas Day in 2020.

The court heard that Mr Sefale arrived at the cattle post, where Mr Nkopane was resting with two other men, and shot him several times.

Mr Nkopane had gone to the cattle post to relieve another herder, Rethabile Jampolo, who wanted to go home and spend Christmas with his family.

Rethabile Motseki was charged with the others at first but later became a state witness. He told the court that after the shooting, Mr Sefale ordered him to cover the victim’s clotted blood with cow dung.

He also testified that Mr Sefale and Thabiso Tholong then carried Mr Nkopane’s body away and hid it.

According to Mr Motseki, the group later went to the village and drank alcohol through the night.

He said that the following afternoon, Mr Sefale ordered the other accused, all of them livestock herders, to dig a grave where Mr Nkopane’s body would be permanently buried.

Six days later, community members grew suspicious about Mr Nkopane’s disappearance and began searching for him.

They found a suspected grave in the Kotanyane Mountains, and Hlotse police then took over.

Mr Nkopane’s body was exhumed in an advanced state of decomposition. The court heard that it was found with a pink backpack marked “Kings”.

He had been shot in the left side of the head, and the bullet exited through the back of his head. He also had gunshot wounds to the chest and back.

Police investigations identified the accused as suspects. Two of them had fled, and some of the accused later handed themselves over to police.

Mr Sefale gave police a 9mm firearm and said it was the weapon he had used to shoot Mr Nkopane.

In her judgment, Justice Motebele relied on section 26 of the Penal Code Act, 2010. It provides that where two or more people share a common intention to pursue an unlawful purpose, and an offence is committed in pursuit of that purpose, each of them is deemed to have committed the offence.

The judge said the court therefore had to decide whether each accused had joined the common purpose at the time of the conduct that caused Mr Nkopane’s death.

She stressed that merely associating with people after an offence had been committed did not, on its own, establish common purpose.

Thabiso Tholong was accused number three. Justice Motebele said the evidence showed that he was present when Mr Nkopane was shot. However, it did not show that he had agreed beforehand with Mr Sefale to kill him. His involvement, she said, was limited to helping Mr Sefale carry the body from the cattle post to lower ground.

As for the remaining accused, the judge said the evidence placed their involvement on 26 December 2020, when they gathered and agreed to bury Mr Nkopane’s body. By then, she noted, Mr Nkopane was already dead.

“There is no evidence before the court that they were present at the cattle post when the deceased was shot, that they participated in the shooting, that they encouraged or facilitated it, or that they had entered into a common purpose with accused number one before the fatal shooting occurred,” Justice Motebele said.

The court found that accused numbers two to seven had not taken part in the killing. Even so, Justice Motebele said their conduct after the shooting could still have criminal consequences. She cited section 27 of the Penal Code, which creates the offence of being an accessory after the fact. She said the Crown might therefore need to consider whether to prosecute them for what they did after the shooting.

However, she stressed that the court could deal only with the offence charged before it. It could not replace that charge with one of being an accessory after the fact.

“In the circumstances, I find the Crown has established beyond reasonable doubt that accused number one is the one who caused the death of the deceased,” she ruled.

Mr Sefale was therefore convicted of culpable homicide, and the six co-accused were acquitted and discharged.

Justice Motebele revoked Mr Sefale’s bail and postponed sentencing to Tuesday.