HIGH COURT OF LESOTHO
by the Honourable Mr Justice S.N. Peete on the 14th February 2000
accused a mosotho male adult aged about sixty years is charged with
the crime of murder it being alleged that upon or bout the 1st day of
March 1991 and or near Ha Nthoanyana - Matelile in the district of
Mafeteng, the accused did unlawfully and intentionally kill Khothatso
pleaded not guilty to the killing; he tendered a plea to assault
common but this was rejected by the crown. Mr Mda, counsel for the
accused, then admitted all the preparatory examination depositions of
P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 and P.W.9. The
defence dispensed with the reading of these depositions and the court
that the depositions be photocopied and be supplied to Assessor Mr
Khoboko as they now formed part of the record of the case.
admitted evidence showed that one the 1st day of March 1991 at Ha
Nthonyana village, a squable arose between the deceased and the wife
of the accused Mpheng over some money which deceased had apparently
given to one Moleleki with instructions to give to his children. The
deceased was in such a fighting mood that Mpheng rushed into a house
of P.W.3 Ithabeleng Makhabane and locked herself therein. P.W.3 then
ordered some children to run to the home of the accused and make a
report. Later P.W.5 Eliza Moqulo passed by and P.W.3 asked her to
escort the deceased away. She succeeded to do so.
accused then arrived and shouted at Eliza saying; "Eliza, wait
with that person of yours." She stopped but asked the deceased
to run away because the accused sounded very angry. The deceased
began running and the accused pursued him until they disappeared from
view. P.W.2 Mamakhooa Manosa saw the accused chasing the deceased and
saw when the two men grappled. She saw when the accused pull the cane
stick of the deceased and hit him with it. The deceased was seen
warding off the blows with his arms.
deceased followed the accused demanding his stick but soon fell down.
People came and transported him home in a wheelbarrow. He had knife
wounds on the neck and waist. P.W.4 stated that he saw the accused
behind the deceased and heard him loudly demand "How long have I
reprimanded you for my wife?" He says he saw the accused assault
the deceased with a stick on the thigh.
headman then called the accused who then explained that the fight was
caused by the attack the deceased had made on Mpheng and that he had
stabbed the deceased with a knife because the deceased grabbed his
testicles. He handed an okapi knife and a cane stick to the headman.
postmortem examination was carried out by Dr Mario Drechsel on the
5th March 1991 and he was of the opinion that death was due to a
stabwound under the left armpit causing intrathoracal bleeding into
the left lung; he opined that a sharp instrument like a knife could
have been used with a considerable force.
also common cause that the accused was arrested by D/Trooper Koena on
the 2nd March 1991. The trooper also examined the body of the
deceased and noticed an open wound on the left side of the neck and
another wound on the left side of the waist.
closed its case after which the accused then gave evidence in his own
defence upon oath. He informed the court that he is an illiterate
peasant farmer and had grown up with the deceased. He says that on
the day the deceased met his death he had been sitting at his home
peacefully eating peaches with his okapi knife when a young boy from
P.W.3 arrived reporting that the deceased had barricaded his wife
Mpheng and had assaulted her. He says he jumped up and rushed towards
P.W.3's house and along the way he met his wife Mpheng. She was
crying and explained that deceased had assaulted her.
way he then saw the deceased with Eliza crossing a rivulet. He
shouted at Eliza to stop the man but Eliza urged deceased to run
away. A chase began. He told the court that he was chasing the
deceased in order to ask him why he had been assaulting his wife. He
says he was very angry "I was very angry -I could die".
When he caught up with him he says he asked him why he had been
assaulting his wife - the deceased vouchsafed him no reply but then
turned to attack him with his cane stick. He says he warded off the
blows using his hands and caught hold of the deceased who then
suddenly grabbed his testicles very tightly. He says he felt extreme
pain which caused him to become dizzy, he felt he was
die. He then took out his okapi knife, opened it single handedly with
his left arm (he demonstrated this to the court) and then stabbed the
deceased. He says he then managed to get hold of the cane stick and
began swinging it at the deceased who was still approaching.
told the court that on previous occasions the deceased had molested
and assaulted his wife and that the family councils and the chief had
intervened to no avail. He further states that most villagers were in
great fear of the deceased.
cross examination it was suggested to him that he had not stabbed the
deceased in self-defence but because he was angered by the conduct of
the deceased who was even alleged to have been carrying an illicit
affair with Mpheng. He denied ever uttering the words "For how
long have I reprimanded you for my wife."
candidly conceded that the evidence did not support a charge of
murder but that of culpable homicide because it was the killing under
provocation. Ms Nku contended that the deceased grabbed the testicles
of the accused because the accused was attacking him. That may be so
but we have no direct evidence of the circumstances under which the
stabbing occurred; we only have the version of the accused. In the
case of R. v.Mohlerepe -1979 (1) LLR 14, late Mofbkeng J. held that
where there are two mutually destructive versions presented to the
court the test to be applied in such a situation is simply that the
court must be satisfied, on adequate grounds that the version it
accepts is true and the other false; a court is not entitled to
convict an accused person merely because his explanation is
improbable. It will only do so if beyond reasonable doubt it is
false. An accused person should not be convicted merely because he is
a liar. In the present case, it appears that most crown witnesses saw
the fight from a distance because no one of them ever saw a knife
being brandished or being used. We only have the version of the
accused and there are no
grounds - without speculating - to reject the accused's version as
false. That he was grabbed with his testicles by the deceased is
rendered even more probable by the report he is alleged to have made
to his chief.
also referred to the case of Rex vs Lerato Phatsoane - CRI/T/6/91
(unreported) a case factually similar to the present case and
submitted that there is a reasonable possibility that the accused's
version may substantially be true. In the cited case Kheola C.J.
acquitted the accused because the crown had failed to prove its case
beyond reasonable doubt.
present case the stabbing must have occurred at a close encounter and
was not seen by the by-standers; it is reasonably possible that when
he stabbed the deceased, the latter was holding or pulling the
testicles of the accused. There is no adequate grounds to reject this
as being false and to convict the accused even on a competent verdict
of culpable homicide. The truth of the accused's version is
reasonably possible and has not been proven false by the crown.
accused is found not guilty and discharged on the murder charge.
These is however uncontroverted evidence that the accused lashed the
deceased; with a cane stick - He has also pleaded guilty to assault
common at the beginning of the trial - a plea which was rejected by
the crown. The court finds him guilty of assault common.
then pleaded in mitigation pointing that his client was a first
offender and had shown remorse in pleading guilty to assault common.
Six months imprisonment or Ml 00.00 wholly suspended for three years
on condition that the accused is not found guilty of an offence
involving violence to person for which he is sentenced to six months
imprisonment without an option of a fine.
: Ms Nku
Respondent : Mr Z. Mda
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