HIGH COURT OF LESOTHO
by the Honourable Mrs Justice K. J. Guni on the 28th September 2000.
accused is charged with two counts. The first count is the charge of
the crime of murder. It is being alleged that on the 17th July, at HA
MOTETE, in the district of BUTHA-BUTHE, the accused did unlawfully
and intentionally shoot and kill MALEFETSANE POTSANE. To this charge,
the accused pleaded NOT GUILTY. Therefore a plea of Not Guilty was
entered on his behalf. In terms of section 162 (1) (a) CRIMINAL
PROCEDURE AND EVIDENCE ACT N0.9 of 1981, the accused tendered a plea
of guilty to a crime of CULPABLE HOMICIDE
he might be convicted on this charge of murder. This plea was in
accordance with his counsel's instructions. The Crown Counsel
accepted the plea which was therefore entered on behalf of the
second count is the charge of the crime of contravening Section 3.
(2) (a) of THE INTERNAL SECURITY (ARMS & AMMUNITION) ACT NO. 17
of 1966. It is being alleged that the accused did intentionally and
unlawfully acquire and had in his possession a firearm to wit: 7.65
pistol and two rounds of ammunition, there at HA MOTETE, in the
BUTHA-BUTHE District, without holding the said firearm's certificate
or licence. To this charge the accused pleaded GUILTY. This plea was
in accordance with his instructions to his Defence Counsel and
accordingly accepted by the Crown Counsel. The Court entered a plea
of guilty on behalf of this accused in respect of Count 11.
Defence Counsel, Mr. Lesutu indicated to the Court that the accused
accepts as established all the facts stated in the PREPARATORY
EXAMINATION (P.E.) record. The P.E. record was accordingly read into
the machine and therefore became this trial court's record.
of this case as gleaned from that (P.E.) record are briefly as
common knowledge that stock theft is a very prevalent offence in
Lesotho, particularly in the Mountain areas. This accused acquired
this weapon, the subject matter of count II, for the sole purpose of
protecting himself and his stock against stock thieves. The accused
was offered to buy this gun only in June 1997, a matter of a few
weeks before the commission of the offences with which he stands
charged. He was still contemplating to regularise his recent
acquisition of the said gun when this most unfortunate incident
happened, on 17th July 1997.
accused had a hired herdboy by the name MPHENG. The accused received
a message through MPHENG from two fellow villagers by the names THOAI
and PASEKA. There is a Land dispute between this accused and these
two fellow villagers. These two gentlemen instructed MPHENG to inform
the accused that wherever they meet him (meaning the accused), they
will kill him if he had not by then killed them. (Presumably for that
unnumbered site in dispute). That week after giving MPHENG the above
message for the accused, PASEKA left their village for QWA-QWA, in
the Orange Free state, The Republic of South Africa where he works.
THOAI also left their village, went down to The Town of BUTHA-BUTHE.
Apparently the accused had taken that message to be a warning or
the 17th July 1997, at night, although no exact time is mentioned,
MPHENG sent an unnamed child to this accused to inform him that the
two gentlemen in question are back in the village and that MPHENG has
proceeded to the chief's place. We do not know the reason of MPHENG's
visit to the chief's place that night because the court was not given
that reason. This accused feared for MPHENG's personal safety because
once before the two men in question way laid MPHENG and sprang a
surprise attack upon his person. It occurred in the accused's mind
that such an attack may recur. He also worried about his own personal
safety. The fact that MPHENG was out there alone in the night, in
view of the presence, in the village, of the two men who have
promised to kill MPHENG together with, this accused, worried this
accused. It crossed this accused's mind that under the cover of
darkness, those men (THOAI & PASEKA) might just surprise MPHENG
with an attack on his way from the chief's place that night. Armed
with his newly acquired loaded, 7.65 pistol, the accused together
with the child who brought him the message that the two men are back
in the village, went looking for and trying to meet and assist MPHENG
on the way from the chief's place.
the accused and that child got out of the village and were entering
the fields which bordered the village, the accused heard a cry.
Someone was shouting
Jo nna ka shoa oe !!! The accused thought that cry was from MPHENG.
accused became convinced that MPHENG has fallen into the hands of
THAI and PASEKA who may be engaged in an attack upon MPHENG's person.
He then ran towards the direction where the cry came from. He then
saw three men. He immediately presumed that it must be MPHENG and the
two men who are attacking him. Acting, purportedly for MPHENG's and
his own self defence he fired shots at one of the three men. He was
certain he had fired at THOAI. He was astonished when PW1 whom he
knew very well asked him why he shot at them. The accused then
realised he had shot a wrong man, not THOAI nor his coconspirator.
He replied to PW1's enquiry thus: " I thought you were somebody
else". The deceased, PW1 and their companion were from a party
where they had been drinking. They must have been moderately drunk.
They must have been excited and loudly happy. As the three men went
on their way home which is the same village where this accused and
his two land claim adversaries reside, one of them shouted the cry
which attracted the attention of this accused who mistook that cry
for help from MPHENG whom he feared had fallen into the hands of
their enemies who would be engaged in the murderous attack upon
accused, believing that it was MPHENG who was crying and the deceased
and his companion were attacking MPHENG, he, (the accused,)fired the
fatally injured the deceased. The shots were fired in the mistaken
belief that MPHENG's life and that of the accused were in immanent
danger from the attack by the deceased.
accused to succeed in his defence of self defence, the attack must be
immanent or must have already commenced-GIDEON LETELE v Rex
CRI/A/149/1968. Before the defence of self-defence becomes available
to this accused, the deceased himself must have threatened by word or
deed the life of this accused. There is nothing in the facts of the
case which shows this court that the deceased did or said anything
which seriously threatened the personal safety of this accused or
those under his protection to this accused. GIDEON LETELE v Rex
[Supra] R v MIYA AND OTHERS 1966 (4) SA 274.
anticipation of an immanent attack, may afford some measure of
protection: The accused mistook the identity of the people involved
in a play. He in fact made a number of errors. First, he thought
those people were fighting when in fact they were playing. Secondly,
he thought their play was an attack on the person of MPHENG. There
was no attack and MPHENG was not even present at the scene. The third
error was the identity of the assailants. There were no assailants.
The people the accused wanted to kill [before they could kill him
according to the message they sent to him] were not present there.
appear that the accused was obsessed with fear for his life from
those would be assassins . He was seeing them in his mind. In his own
mind, he wanted, almost desperately, to see them, that night,
attacking MPHENG on his way from the chief's place. We are here,
dealing with the accused's beliefs at the time he acted as he did.
The jury in an American case of DIYALO acquitted the NEWYORK
POLICEMEN, on a charge of murder of a young man whom the police shot
when he put his hand in his pocket while holding his door handle in
order to open his door. The jury believed the defence by the
policemen, when they claimed they sincerely believed DIYALO was
putting his hand in the pocket to get out the gun. DIYALO had no gun.
He only had his house keys in his pocket. The NEWYORK POLICE are
trained and very skilled professionals. Their belief earned them an
acquittal. This accused is an ordinary Peasant MOSOTHO farmer. He
made a great mistake and committed the most regrettable error. He
acknowledged his mistake right from the start. He has never tried to
cover his bad mistake.
mitigation his Counsel described the deceased as his friend. This
implied that there were good relations between accused and deceased.
Immediately he wa
on bail, the accused went and started to mend the rift he has caused
between himself and the deceased's family. He indicated before this
court that almost all the members of the deceased's family have
forgiven him except the deceased's widow. The widow is unconsolable.
This is understandable. She is now left alone to support herself and
their children because of the irresponsible actions of this accused.
The accused has offered to pass ownership of (15) fifteen of his
twenty-five sheep to the widow. Paying part of what is regarded as
compensation for the loss he caused to the deceased's family must
earn the accused a reduction of the term of imprisonment that should
be imposed upon him. MPAKA MOSALA v Rex. 1998 LESOTHO LAW REPORTS AND
BULLETIN 1997 - 1998 page 240 particularly at page 247. This
sentiment was expressed by the Judge of Court of Appeal of Lesotho in
the above cited case.
As far as
illegal possession of a firearm is concerned, the accused although he
had no certificate authorising him to acquire and possess the said
firearm, he had a valid and satisfactory reason to acquire and
possess the same. He had not acquired that gun in order to perpetrate
unlawful actions. He has not abused or misused that weapon. What
happened was a very bad accident due to some degree of negligence.
The accused had a right to protect his tock against the stock thieves
and also for his own protection. It was observed in the case of
AND ANOTHER v Rex. THE LESOTHO LAW REPORTS & BULLETIN 1997 -1998
Page 8 at page 16, by AJA BECK as he then was, that the maximum
penalty provided by Section 43 (1) of THE INTERNAL SECURITY (ARMS AND
AMMUNITION) ACT NO 17 of 1966, should be reserved for most extreme
cases of contraventions of Section 3. (2) of the same Act. The
accused in that case had committed the most callous murder. In broad
day light PHAPANO pumped no less than 20 bullets into the body of the
deceased who had done nor said anything provocative to the accused.
He had known and targeted the deceased whom he had successfully
identified. The accused in our case has been convicted of a lesser
offence than murder. This court should be more lenient to an accused
who has been convicted of lesser offence and has good reasons for
having in his possession the said firearm.
Count I 4 years imprisonment, 2 of which are suspended for a period
of 3 yrs on condition that within that period the accused pass
possession of 15 sheep to the widow of the deceased as part of
Count II (M200.00) two hundred maloti or (6) six months
imprisonment. Both sentences to run consecutively.
(7.65 pistol with two rounds of ammunition) is forfeited to the
crown. The order for forfeiture is suspended for a period of three
years on condition that the accused regularise his possession of the
said gun by obtaining the firearm licence with which he can come to
claim this gun from the Registrar of this court where the gun will be
kept for the period of three years.
: Ms Makoko
Defence: Mr. Lesutu
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