HIGH COURT OF LESOTHO
Director of Public Prosecutions
Qhomane/Miss N. Nku/Miss L. Maqutu
Accused One : Mr. M.E. Teele
by The Honourable Mr. Justice T. Monapathi on the 9th day of March
Seate ( Accused) and one Matumelo Lerata (A2) had been charged with
the murder of Khahloe Ntlhokotsi (deceased). Accused joined issue
with the Crown. So did his Co-accused who was discharged at the end
of the Crown case. The Accused gave evidence in his own defence after
the close of the Crown case. The main issue remained to be as to
whether the Crown had proved its case beyond a reasonable doubt. It
became related with the defence's contention
assault, which the Accused admitted, was not the cause of the
alleged that upon or about the 1st day of April 1994 at or near Ha
Makoatlane in the district of Berea, the said Accused did unlawfully
and intentionally kill the deceased. The post mortem report showed
that death of the deceased had been due to "fracture of scalp
with brain hemorrahagy (sub-dual and intra cerebral haemorragy)
"Hemorragy" should have meant Haemorrhage."
Preparatory Examination (P.E.) had been held at which the following
witnesses made depositions P.W.1 Lefu Ntsala, P.W.2 Tumelo Lerata,
P.W.3 Khunong, P.W.4 Monaheng Ntsokotsi, P.W. 5 Paolosi Ntsokotsi,
P.W.6 Moratuoane Ntsokotsi, P.W.7 Selai Moeketsi, P.W.8 No. 6445
D/L/Sgt Monyeke of the Royal Lesotho Mounted Police. The depositions
of P.W.4 and P.W.7 at the P.E. were admitted as evidence and read
into the recording machine.
admitted evidence of Monaheng Ntsokolsi the elder brother of the
deceased was that it was on a Easter Friday when he left with the
deceased to the place of one Pheko. They had gone to drink beer.
There was drinking and dancing at that place. Deceased happened to
dance with A2. The witness became suspicious as he saw deceased and
A2 hugging and holding each other's waists in their dancing
movements. He thought they were in love.
witness then went to A2 and asked her why she could have a love
affair with deceased who was so young. A2 responded by saying that
deceased was merely her son. The reply suggested a denial and that
the deceased was too young to be her lover. This issue of the love
affair was raised with A2 about three times. In the end the witness
no longer saw the deceased and A2. He testified that he did
search for them. It did not seem that the issue of the love affair
was raised with both the deceased and A2. Nor that this love affair
was proved except the witness' mere suspicion. It could not be
established from the evidence that A2 and the deceased left together.
It was submitted that it could only be a matter of speculation.
witness testified that he went to sleep at a different place from
where the deceased had normally slept. On the following day he
received a report from his father that the deceased had been
assaulted. When he got to their home he found that the deceased had
in fact been assaulted. He was injured and was unable to talk.
evidence was admitted. He was the person who identified the deceased
to the doctor before the latter could perform a post-mortem
examination on the body of the deceased. The deceased had been his
cousin. The post-mortem report was admitted in terms of section
223(7) of the Criminal Procedure and Evidence Act of 1981 since the
doctor had left the country. The postmortem report spoke of an
"opened wound at the back side of the head (a compound
fracture)." It had further reported of the cause of death as
stated earlier in the judgment. Defence Counsel remarked that the
report had said nothing about the skull and its contents. I thought a
"compound fracture" meant that at least the skull had been
damaged or cracked.
the points made by the Accused concerned the injuries found on the
deceased. It was that the doctor had not recorded the fact of the
haemorrhage in the space of the paragraph 10 of the post- mortem
examination report form. It was suggested that if it was so it meant
that the report was inaccurate as to the injuries
cause of death. About the first aspect was the contention that the
absence of that report was caused by the fact that the doctor had not
opened the skull.
evidence of P.W.5 Paolosi Ntsokotsi was used as support for the
contention that the doctor could not have explored the inside of the
skull to investigate the cause of death or the extent of the injury.
The witness said he saw the deceased and made preparations for his
burial. The deceased's head was not sutured neither was it held in
any place with bandage. If the doctor had opened the skull as Counsel
later argued the sutures or bandage would have been seen. Counsel
further argued that in the circumstances the Crown had failed to
prove that the assault was the cause of death.
witness PW5 was at his home late into the night and he had been
asleep. He received a message that the deceased (his son) had been
assaulted. He was shown a place where he was allegedly assaulted but
later taken to the Chief's place which was five hundred (500) metres
away when found. He was leaning against the wall and in a sitting
position. He said he was assaulted and he was feeling cold. The
witness examined the deceased. He found that he had an open wound
which was slightly bleeding above the left eye and a swollen one at
the back. The witness said there was a depression at the middle top
of the head. He said he saw in all three injuries. The witness
however admitted that the examination he did could not have been a
thorough one in the circumstance that is why he could speak of a
swelling later a depression, three injuries and later two. He was
examining the deceased with the aid of a torch because it was dark.
witness said Tampo Ntsokotsi's vehicle was found but it did not have
lights. It was however able to travel to the Chiefs place and carried
the deceased to his home where he remained overnight. The witness
said the deceased did not
any further injuries until he was carried to the Queen Elizabeth II
Hospital in Maseru by use of another vehicle which belonged to
someone who had gone to attend a church feast. Another vehicle except
that one of Tampo had been found but there had been no driver or some
such problem. The deceased was placed in [he ward 4 of the hospital.
He had since the previous day been unable to speak. He looked
hopeless. The witness went home after the deceased was admitted into
witness said on arrival at his home he asked the Chief to call all
those who had been involved in the assault of the deceased. A meeting
was arranged at the Chiefs place where the witness' brother, the
chief and the Accused were present. The Co-accused was not present
the meeting was dispersed after the Accused was confronted with the
allegations of the assault on the deceased. On the following day a
report was received that the deceased had died. An arrangement was
made by the witness to place the deceased in a mortuary following a
letter from the Chief to the police.
witness was closely questioned about the inability of Tampo, who was
a neighbour and relative of the deceased, to use his vehicle to carry
the deceased to hospital that very night of his injury. This Tampo's
vehicle as it was suggested was said to have been mechanically sound
but without good lights. An impression was sought to be created that
since Tampo was a relative his inability to assist further was caused
by a family disagreements. Most probably there was such a
misunderstanding inasmuch as the witness called it a "family
matter" but I was not convinced that there was an outright
refusal on the part of Tampo. It was clear on the evidence however
that Tampo had been unwilling to use his vehicle because of bad
suggested that inasmuch as Tampo had driven to the chiefs place he
might as well have risked travel to Maseru or Teyateyaneng Hospital.
Adamant as the witness was, I sensed that there was more than met the
eye concerning the relations between the witness and Tampo. Although
much was made about this I did not see how it was an intervening
cause in the strict sense of novus actus interviniens even if Tampo
has in truth refused or was unwilling to assist. One suggestion was
that the witness was reluctant to use Tampo's vehicle because Tambo
had suggested that the Accused should not be charged.
witness was also questioned about his unhappiness over the fact that
his son had been away from home that night. He denied however that
whipped his son. A point was sought to be made that the deceased's
father's reluctance to take deceased to hospital supported the
inference that he had indeed whipped the deceased.
was Royal Lesotho Mounted Police Officer No. 6445 Monyeke. He had
been PW8 at the PE. In April 1994 he received a report about the
death of the deceased. As a result he went to a mortuary where he
found the deceased's body.
observed a wound above the left eye, another on the left ear, a
bruise on the head and a swelling at the back.
investigation led him to the Accused and his Co-accused who reported
themselves at the Police Station where they were charged after giving
certain explanations. They were placed under arrest. On the day of
their arrest a timber stick was brought by the deceased grandmother's
Moratuoane Ntsokotsi. Accused contended that it was the stick that he
had used. The stick was kept at the Police Station. It was later
handed in at the P.E. but disappeared thereafter.
cross examination by Mr. Teele the witness was made to recall exactly
where the alleged injury on the ear. He said he saw about: three
depressions, the biggest which was in the middle of the head. He also
remembered seeing an open wound. The dead person he saw was
identified to him. He therefore excluded a mistake of identifying of
the body even though he testified that it was Paulosi Ntsokotsi who
identified the body to him. It was Paulosi the deceased's father who
said he left for work after the death of his son. He could not have
confirmed identifying the deceased to the police.
witness said he travelled to the deceased's village where he made
necessary investigations. On of the people he spoke to was Mohlouoa
and Lerato Khunong. It was true that the witness could have mistook
the nature of the wound on the deceased's ear despite that he had
made recordings thereof in his notebook. I however did not observe
the serious flaw that the defence sought the Court: to note. This did
not mean I became unaware of the slight variations in the witness
testimony. My concern was whether serious wound that was revealed on
the head of the deceased that could not have been caused by anyone
other than the assault by the Accused.
Ntsokotsi who was PW 6 at the PE was called in as PW 13. She had been
at her home during the Easter Friday night in the village of
Lekokoaneng where the deceased was assaulted. Deceased was her grand
child. She got a report that night about the deceased who came in a
vehicle accompanied by his father. This was after a report had been
received of an assault on the deceased who had been lying somewhere.
A few of
people had gone to ask Tampo assistance with his vehicle. The witness
testified that it was not Tampo's vehicle but another which brought
to his home. The vehicle had been brought from a neighbouring
village. Tampo's vehicle had been said to have had its lamps damaged
by his son but it was otherwise in good condition.
mattress bedding was made for deceased who arrived drenched in water.
He had a wound on the left eye. He was unable to speak. He was not
immediately taken to a doctor because transport was not available
evidence of PW 3 Lerato Khunong and PW 2 Tumelo Lerata were to the
effect that the deceased was struck a blow with a timber stick and he
fell down. That he was subsequently belaboured on the ground PW 3 had
been at the church feast. He had gone out when he heard screams from
A2. It was about sixty metres from where the witness was. Together
with PW2 and one Ntsala they rushed to where the screams came from.
They then found A1,A2 and other people. It was then that he found
Accused and deceased struggling over a stick.
appeared that the stick got loose and Accused was able to hit the
deceased who fell down. At the time A2 had been throwing stones and
had been missing. She was drunk. She was the same lady who had been
dancing with the deceased, one person intervened and the witness went
away because he was scarred. He later heard that the deceased was
hospitalized. This witness appeared not to know the background of the
fight. He came into the picture when already there was that struggle
between the deceased and the accused.
evidence did not differ materially from that of PW3 in that they
could have arrived at the same time with the latter after hearing the
screams himself. He said he found Accused and the deceased
quarrelling over a stick. This stick the Accused ultimately wrested
off from the deceased whereupon he hit him
times with it. I did not see the evidence of the witness to differ
very much from that of PW 3 except that much was made in the cross
examination about the desire of the witness to protect his mother who
had been drunk and involved in shouts of a drunk person. In a similar
way he found deceased and Accused quarrelling over a stick until the
beating which the Accused administered on the deceased. He said at
the time no one was attempting to intervene.
Accused gave evidence in his defence. He had been at a drinking place
on the day of the day of the fight where he took about three quarts
of beer. He left at about seven at this place. He was going to his
own home. He was alone. He went via one Pheko's cafe which was also a
drinking place in the village. There he bought another drink.
Pheko's place he found A2, the deceased and another person. If I
recall well deceased's brother was present. There was drinking, music
and dancing. A2 also partook of Accused's beer. A2 wanted to leave
with Accused because it was dark. They went together towards the
village of Ha Makoatlane. He said he was not feeling drunk but was
"just nice." A2 was that lady about whose dancing with the
deceased and the suspected love affair the deceased had complained.
were on their way he heard the sound of stones thrown at them and
hitting a pole. They hid against a house. The stone throwing
continued even when they had gone into a passage. There he became
aware of the identity of the stone thrower. It was the deceased. He
hit with a stick and fell deceased down. At that lime people had
appeared. He denied that he belaboured the deceased who had fallen
down. At chat time A2 was making a lot of angry noise and at the same
time was throwing stones in response to that initial stone thrower.
She was drunk and hitting deceased with stones. She was only able to
stop when one of the boys
her son) took her away. The Accused confirmed that Tumelo was one of
the boys who arrived at the scene. Accused said he had never intended
to injure nor kill the deceased who he had met by chance when he was
going away to his home. I did not find any reason to disbelieve PW 2
and PW3 about the incident of the Accused having grappled with the
deceased for the stick. The denial by Accused of this incident was
the boys was sent to call the chief. The chief arrived. Then the
deceased was asked what he had done to receive an assault. He said he
had raped A2. That it was Accused and A2 who had assaulted him. The
chief then left. After some time the deceased was removed to the
chief's place where his father and brother arrived. There was a
reference to Tampo's presence. Deceased's father was angry with
deceased remarked about that he had often warned the deceased not to
go about loose about night. The remarks had culminated with
deceased's father whipping deceased with a sjambok. This was stopped
by intervention of the chief and Tampo. Deceased then reported that
he had been assaulted by Accused and A2.
already made certain findings including this one about the medical
report and submission made by the defence. And the circumstances
surrounding the events as after the injuring of the deceased and
those concerning the problems about Tampo's transport, his vehicle
and its condition.
concluded mat there must have been a lot of delay in sending the
deceased to hospital. This delay was caused by so many things, it
included the problem of the misunderstanding between deceased's
father and Tampo. That is why in response to one of the question
concerning relationship between the deceased's father and
the deceased's father replied that it was a family matter.
I did not
think that those circumstances (of the delay) were an intervening
event or a separate cause of death of the nature off novus actus
interveniens as we understand it. I concluded that that injury which
caused the facture of the skull and [he haemorrhage was the cause of
death and it was caused by that timber stick which this accused
admitted to have used in the assault on the deceased. There were of
course a few injuries that the doctor described, even those that were
described by the witnesses themselves including the police officer.
These were minor injuries. I am not able to say that the deceased's
father or A2 could have caused these minor injuries. To remind you A2
accused himself has given a statement under oath in his own defence.
The Accused described those circumstances beginning from the time
when he visited one drinking place, if I recall well it was Pheko's
cafe. There was drinking of beers. At the first place he took some
three beers, according to him. It must have been at this second place
where he took another beer and where he met 'Matumelo and others,
including the deceased. He says after that drink he had about 7.00pm
or was it 9.00pm, when he resolved that he was going back to his
home. It was then that 'Matumelo asked the accused to accompany her
because it was dark.
shortly after their departure that there was that bout of stone
throwing, some stones hitting against poles, things like that, and
accused hiding at the back of houses to run away and to hide himself
from these stones. Eventually at the back of the houses of was a
passage of which this accused came to realise who the thrower of
these stones was. He began to realise mat it was the deceased. He men
describes his acts which constituted in attempt to defend himself
and that he ultimately assaulted the deceased in self-defence.
Meaning that he admitted to having assaulted this deceased with the
timber stick. If I recall it must have been the timber stick that the
accused said belonged to the deceased.
I do not
think this accused is to be believed. What I believe happened is that
there was a stage where this accused and the deceased grappled and
were fighting for the stick and this is the incident that described
exactly by PW2 and PW3. I did not see why I should not believe PW2
and PW3 in describing these circumstances starting from when there
was a fighting over the stick, when eventually the accused was able
to win the stick and thereupon assaulted the deceased. This appears
to be what happened. It was correct that these two witnesses may not
have been unable to see what happened as before they came into scene.
I was not able to speculate as to what happened before the grappling
over the stick except what the Accused said. But what was clear was
that there was a struggle over the stick between the two gentleman.
The accused wrested off the stick and thereupon beat up the deceased
when he could have easily left the deceased. At the same time heeded
the warning against adopting an armchair approach.
I am not
able to say that this killing by the accused was intentional. At the
same time the evidence that is on record does not indicate in anyway
that the accused was acting in self-defence. There is a lot of
confusion concerning the involvement of 'Matumelo, this aspect of her
having been seen throwing stones in a drunken activity. At the same
time there is this other description of events, including that the
deceased's father having whipped the deceased with a sjambok.
confusion even starts from that time when the deceased was seen
'Matumelo (A2), in a way that brought about that complain that I have
already spoken about in my judgement and the suspicion being that the
deceased was in love with A2. It is clear that this matter of love
affairs between 'Matumelo suspended love affair between 'Matumelo and
the deceased and drunkenness had a place in the confusion that we
have here. This included this confusion as to where suddenly did the
deceased follow this accused after the accused had gone out of the
shebeen with 'Matumelo. Why did that young man follow up the accused
and A2? Why did that happen? Why this coincidence that the deceased
had been seen accompanying A2, then there was a fight between Accused
remained convinced that there is a lot that should have been
explained, more especially more evidence seeking to explain the
circumstances as before the deceased being seen with the accused
fighting over the stick. All in all I would find this accused guilty
of unintentional killing of the deceased. He killed him negligently.
POKI v REX 1985 - 1989 LAC 29 had been an appeal from the High Court
on conviction for murder. The appellants had stabbed the deceased
with knives on vulnerable parts of the body. That is why the High
Court had concluded that they had "acted recklessly".
Mahomed JA found against this conclusion and said at page 31-32 in
almost similar vein to the instant matter:
"The material evidence pertaining to the details of the struggle
between the deceased and the appellants emanate from the evidence of
the appellants themselves. That evidence points to a swift escalation
of events following upon the initial stone throwing by the deceased.
The appellants were clearly angry. The circumstances do not support
any inference of deliberation, or selection of target areas, which
might have been quite unplanned.
In the circumstances, I have a doubt as to whether it can safely be
said that the Appellants had the requisite mens rea to kill the
deceased. The Crown has not in any view discharged the onus of
proving this element beyond a reasonable doubt. It accordingly
follows that the Appellants should have been found guilty of Culpable
also mindful of the warnings of the courts about how a judge should
go about a defence story, that there was no need to believe every
detail of it, that it was sufficient if I thought that there was
reasonable possibility that it may be true. See R v M 1946 AD 1027at
1033 per Davis AJA. Accused's version was false beyond a reasonable
finding was that there had been nothing by way of with self defence
on the part of the Accused. Rather circumstances were as seen by PW2
and PW3 that Accused ended up assaulting that young man as after they
were seen fighting over the timber stick. One could not speak of
there having been circumstances strictly speaking suggesting
self-defence on the part of the Accused. And most importantly when
this assault did take place there were people already assembled at
the scene. The Accused could have ably moved away from the young man.
I did not see what danger, what real threat there was that could have
supported the claim that Accused was acting in defence.
Accused was therefore found guilty of Culpable Homicide, having
killed Khahloe Ntsokotsi in a negligent act.
13th day of March 2000 I sentenced the Accused to a period of
imprisonment of four (4) years without the option of a fine.
Accused's Counsel addressed the Court and asked for a lenient
sentence I had already noted that the Accused had merely killed
through negligence not intention. I further noted the attendant
circumstances of drunkness stone throwing, the grappling for the
stick and what I suspected to have been jealousy over A2. It was just
was told that the Accused has two dependent children of one being
eight years of age and they being in Standard Six and Standard Seven
classes, at school, respectively. Accused also had a wife who was a
housewife. All had depended on the Accused and would suffer hardships
if the Accused was sentenced to a term of imprisonment.
Accused had already spent two (2) months in prison awaiting trial in
this case which has taken close to six (6) years to completion. It
was in 1994 when he was in prison. Having worked in South Africa, he
has lost his employment and benefits.
that the deceased was certainly a young man who had no dependants.
But his life has been lost and he will not return to this world. The
death of a human
remains a serious matter to his relatives, his community and to the
state. That is why punishment for such a crime ought to be realistic
and not shockingly lenient. If not there will be no value in
judgments and sentences and the Courts will be brought into
disrepute. It did not matter whether an accused was a first offender.
never been a static or immutable rule that a first offender should
not be punished to imprisonment. It depends on the circumstances of
each case. It is often strongly contended that sending a man to
prison puts him at the risk of contamination resulting from his
contact therein with difficult characters. It can never always be so.
A modem prison is intended for rehabilitation. The element of
deterrence cannot always be lost in the sentence of imprisonment. The
wisdom and practicality of the punishment has however made it to
remain in the statute book.
considered all the aspects and submissions towards the sentence in
this matter. My order was to send the Accused to imprisonment for
four (4) years without option of a fine.
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