HIGH COURT OF LESOTHO
Crown : Miss N. Mokitimi
Accused : Mr. A.T. Monyako
by the Honourable Mr. Justice T. Monapathi on the 7th day of August
Accused pleaded not guilty to a charge of murder. The indictment
or about the 16th of May 1993 and at or near Tebellong in the
district of Qacha's Nek, the said Accused did unlawfully and
intentionally kill MOIKETSI RAMPHALLA."
of the deceased was found at a school, near a school room, where on
the previous night there had been a musical concert. The deceased had
a wound on the left chest as testified by Blyth Mpheta who was PW5 at
the Preparatory Examination (PE) and whose evidence was admitted. The
position of the wound was also corroborated by former policeman Joel
Lebaka (PW4) who was PW7 at the PE. He arrested the Accused together
with PW3 Det. Sgt Jobo who
at the PE. Accused was arrested on the 2nd June 1993.
aforesaid the evidence of only two witnesses given at the PE was
admitted, including the postmortem examination report (Exh "1").
On the 3rd February 1994 the PE was held in this matter and eight (8)
witnesses were led who were as follows: Mosalue Phatela (PW1),
Phoofolo Phoofolo (PW2), Sankoela Ramphalla (PW3), Mara Mosobe (PW4)
Blyth Mpheta (PW5), Bolomo Makakane (PW6), 7430 D/Trooper Lebaka,
(PW7), No 3465 D.Sgt Jobo (PW8).
witness to be called by the Crown was Sankoela Ramphalla (PW1). He
stayed at Ha Phatela in the district of Qacha's Nek. He could read
and write in Sesotho. He was 26 years old. He knew the Accused. He
knew him to be a resident of Tebellong and he was not a fellow
villager. He had known the Accused before the 15th of May 1993. He
also knew the deceased in this case and he had been the witness'
15th of May 1993 the witness was at Tebellong Secondary School where
there was concert which was held in a school hall. There was also
present Mopeli Secondary School singers as one of the competitors.
There was merry making and singing until earlier in the following
morning when a fight erupted between one Mofolo and one Hood. The
latter must have been a different person from the one referred to as
Bahlakoana. They were engaged in fisticuffs. One Maraling (who became
DW 2) came into the scene and made as if he was stopping the fight
but he assaulted those from Ha Phatela village. He beat one Kamela
and Rantekana. The two then ran away. He had been hitting them with
open hands. He left them. And then Maraling came to beat the witness
with an iron stick which the witness warded off with his hands until
he got tired. He went toward the door. He was not able to go out. His
uncle (the deceased) then asked Maraling as to why he was assaulting
the witness when it appeared that the witness was not even fighting.
replied to say that deceased should "go away" (fotsek). It
was then and immediately that deceased and Maraling engaged in
exchange of blows with sticks. At that time the witness was standing
aside and watching. Accused then came in from the side to the
deceased whose blows he parried with a stick. He had the stick held
in his left hand and then
the deceased with a knife which he held with his right hand. The
witness also spoke to the effect that the Accused has also parried
the blows from both fighters. The deceased then exclaimed: "go
aside this man has already stabbed me with a knife". It was then
that the witness and other ran and squeezed out of the door. The
witness went out together with deceased and others.
witness having ran out, he then went round the building after
deceased some short distance whereupon he found the deceased down
having fallen near a class room. He was not able to rise. He then
went on to make a report to others about the injury of the deceased.
One was Kamele. They then went away to their homes with one Phoofolo,
to attend to his (witnesses) wounds which he had received when he was
attached by Maraling. It was the last time that he saw the deceased.
That time it was in the early morning hours when, as the witness
testified, the deceased died at the spot where he had fallen. The
witness last saw the Accused in the hall during the fight. He had
known the deceased well. On that night he had taken liquor. He was
drunk. This was the case with the Accused. The witness had seen the
Accused partaking of liquor in the concert hall. Before this
incidence the Accused and the deceased were on friendly terms and had
never clashed before. On this night the deceased had never attacked
anybody. All he did was to question Maraling as to why he was
assaulting the witness. That alone brought about the attack on the
examination by Mr. Monyako the witness repeated that he saw the
Accused drinking beer in the hall although he did not know how many
beer cans or bottles he drank before the fight. He had been drinking
with Maraling, Hood, Bahlakoana and others. Bahlakoana was the one
who appeared most drunk. There were those who even came already
drunk. Of those Maraling was the first to leave. The distance between
where there was drinking and the stage was about sixteen (16) paces.
Drinking had been done by this group of people next to one wall of
the full hall. Then there was singing by the Mopeli Secondary School
on whom the witness had had his attention concentrated. He was nearer
the singers than that group which was drinking at the side of the
hall although he was towards their side but certainly not on the
was the first to leave and reprimanded those who were making
not to do
so and not to join those noise makers. He did not succeed to quell
the troublemakers. Deceased was not amongst those who were making
noise. The encounter between deceased and Maraling was brought about
when deceased asked Maraling what the reason was for the assault on
the witness (PW 1). Maraling had turned to the witness (who was not
among the noise makers) when the fighting was starting. The fighting
was between Accused and Mofolo. It has been before Maraling got into
the picture. At that time all the people who attended the concert
were still in the hall.
portion had joined the group that was singing. While the witness was
with the group singing he was able to see all what was happening. He
estimated the distance in between as having been about six (6) paces.
He did not hear what Maraling was saying but it had been after he had
beat up Kamele and Rantekane with bare hands. He later was possessed
of a stick while the witness said he was hit with a stick when he was
standing near the wall doing nothing. He denied that he was
disobedient at all. Maraling was not saying anything to the witness
except belabouring him with a stick. He left the witness only when
the witness was tripped near a table. It was at that time the
Deceased asked what was happening.
then a lot of noise people were scattered about. Others even went
through the window. He was able to hear what was said between
Deceased and Maraling. He was very close. Maraling had said Fotsek
(go away) when then the fighting started exchanging blows with
sticks. He did not see injuries on any of the constants. Molahlehi
intervened (Accused did) and warded off the blows and then stabbed.
He had seen the Accused approach when there had been some kind of a
free for all. He approached from the side. He had not known the
relationship between Maraling and Accused. He would not have denied
that Maraling was younger bother of the Accused. When Accused parried
the blows it was at the time he had just been beaten up. He had not
been far he had approached. He had moved away from that table which
had tripped him. About a pace or so away.
Accused so parring the blows he was just away from them on their
side. The witness had seen the Accused approach. He had a stick on
the left hand and a knife on the right. It was shiny that is why he
realized it was a knife. He saw him clearly when he stabbed. He did
the type. He had only seen the blade but not the handle. He inflicted
only one stab wound. The Deceased exclaimed that he had been stabbed.
Thereafter they ran away. He did see blood dripping from his chest
area and was appearing from his clothing.
was lit by a paraffin lamp and candles. That were placed round the
walls and the table. The candles and the lamp cast adequate light in
the hall. Witness was emphatic that he clearly had seen that the
Deceased was injured and was oozing blood. He denied that he could
not see because of lighting. He said he was close to the fighters. He
and Deceased almost got out together because they squeezed through
the door. It was during the hours of about 3.00 in the early morning.
He did see blood coming out from the Deceased and this he saw when
outside having turned around a corner of the building. On the ground
he did not see blood drops but traces on the Deceased's skipper. He
testified that he saw that Deceased had fallen about twenty to twenty
five paces from where he had been stabbed.
messenger of the chief would have been sent as usual when there were
concerts. The witness did not know whether it was done at the
concert. It was not his village. When it was suggested that accused
would say he was sent by the chief to go and see that the concert ran
smooth, he would not deny that. When it was further suggested that
when there was a lot of noise Accused closed the concert and ask
occupants to leave, he denied that and said it would be his first
time to know about that. When challenged the Accused would say he had
not known until later towards morning that a body had been found
dead, he did not know because he (the witness) went away. He had been
with Molefi, Mosaluoe and teachers when he got a message (report)
that someone had been found dead that he would not deny. He was
emphatic that he saw Accused assault Deceased with a knife. To this
he said he swore to God. He said Deceased was seen by the witness and
the Accused must have been seen by others stabbing the Deceased. He
would not know why he picked on Deceased. He did not know the reason.
He did not know why Deceased was stabbed. He would have no reason for
lying. This witness withstood Mr. Monyako's cross examination. He
appeared honest and unshaken. He must have been telling the truth.
PW 2 was
young man of 22 years of age. He had then been 18 years at the time
stayed at Tebellong Ha Phatela. He was illiterate. He knew Accused.
He was at the concert at Tebellong Secondary School when it was on
the night of the 15th May 1993. Deceased was his cousin. At the
concert he was not a singer he was a student from another school, and
he was just going to enjoy the music.
concert begun and proceeded. It broke off early because there was a
fight. Maraling and Accused fought and one Sankoela (PW 1) was also
fought. One Rantekane was also fought. He was also present in the
concert hall where he was standing next to a table. During the fight
he was still at the table. He was about a pace away from where the
fight was taking place. Deceased was at that time sitting at the back
at the chairs. Accused was then roaming about at the stage. The stage
was about 4 to 5 paces. He then saw that Maraling and Accused were
involved in a fight. It was against PW 1 and one Rantekana. He had
before then been hitting others with his open hand. He went back to
the stage where he was roaming about. It was after that fight
involving the Accused, Maraling and PW 1.
had before been belabouring PW 1 with a stick. Deceased had come to
ask what was happening "to his children". Maraling had
answered back by saying he must go away (Fotsek). Deceased and
Maraling were involved in a fight with sticks when Accused came from
the side warded off blows from Deceased and then stabbed Deceased on
the left breast upper chest area. Deceased had attempted to go to the
side when Accused had come from the back about a pace away as the
witness testified. After the stabbing which the witness said he
clearly saw Deceased was reported by this witness to have said: "Go
away from the door so that I can get out, this person has stabbed
me." The witness said they rushed out followed the Deceased out
and found him having fallen down ahead of them. The witness then went
home. He later saw Deceased's corpse at the mortuary when it was
fetched in order for burial which was done later.
taken back to the earlier events in the hall the witness said there
had been people drinking including Accused, Maraling, Bahlakoana, and
Hood. He did not see Deceased drinking. They were drinking beer from
bottles. After then he did not see Accused do anything because he
went home. He never saw him after the stabbing.
cross examination by Mr. Monyako the witness reiterated that he had
seen the Accused roaming on the stage. It was before the stabbing not
afterwards as he later corrected himself. The witness said he had at
all times surveyed the events surrounding the stabbing been watching
the Accused but not all other times. He had all the same seen Accused
go up and down the stage but not when he left the stage. Next he saw
Accused stab the Deceased. He was from the back of Deceased when he
emerged. Accused had never spoken to Deceased on that day. It had
only been Deceased and Maraling who spoke to each other. Accused was
from behind the Deceased when he emerged. The witness had been about
four to five paces away. It was still noisy then. The witness could
still hear conversation between Maraling, Deceased and others despite
the noise in the hall. Lighting had been with candles and another
lamp at the table.
had emerged behind Deceased and just stabbed the latter as he
(witness) demonstrated. He was still a bit towards the back but more
towards the left side. Witness repeated that before stabbing the
Accused had parried the blows between Deceased and Maraling. He did
this with his left hand and stabbed with his right hand. The stabbing
was done on the left side of the Deceased having appeared from the
back towards the left of the Deceased. The stabbing was done with the
right hand. This the witness was not able to easily demonstrate
because he held the knife with his left hand because as he said he
was left handed. I thought it was well explained in the absence of
contradiction. He said he was able to use both hands. I cannot say
his demonstration that he used both hands to write was conclusive. I
however thought that his demonstration was clumsy
repeated that the Deceased asked for his way through the door after
being stabbed. Someone must have opened the door. It was already
opened. They followed the Deceased out. He was not aware who had been
closest to the Deceased as all went out in a rush. Deceased had put
on a black lumber jacket. Only the back of the part of the knife was
seen by the witness. It was an okapi knife. The witness recalled that
Maraling was also putting on a black leather jacket. The witness
insisted that Accused was involved in the fight despite his denial.
He said the Accused killed. The witness said it was his first time to
hear that the Accused had been sent by the chief to quell any
troubles that would arise. He denied it. Towards the end the witness
said he could not even think of reporting the incident to the police
because was still young
immature. It had been his first time to come across such an
occurrence which had frightened him.
clarification was sought by gentleman Assessor Sesioana the witness
responded that he had not know the cause of any assaults except that
he thought this could have been a result of drunkness. The drunkness
must have been the cause of the Accused's actions of going up and
down. The Accused's reaction after the stabbing was not seen by the
witness because they were on the rush to the outside. There had been
confusion and a kind of a free for all where there was fighting with
sticks involving people like Rantekane, Phoofolo and later PW 1,
Maraling, Deceased and Accused. In the end Accused faced Deceased at
the time PW 1 and Maraling were in the picture. Deceased was also
having a stick. Accused was warding off blows from sticks in which
Deceased was also involved with Maraling in a fight. I concluded that
the witness' account must have been the truth and it was correct
despite his obvious immaturity which suggested confiision at some
instances. I saw no factor which disturbed h is reliability.
PW 3 was
3465 Detective Sergeant Jobo. Around 1993 he was stationed at Qacha's
Nek. He was investigating officer in the present case. He also
arrested Accused. On the 7th June 1993 he met the Accused at
Tebellong . He had received information about the death of Deceased.
Then he met the Accused following his (witness) investigation. He
explained that he was a policeman investigating the case. Accused was
cautioned that he was free to volunteer an explanation. He did not
make any explanation except that he knew nothing of killing of the
Deceased. He was not satisfied with the explanation and he told
Accused that he was being placed under arrest and charged with
murder. He did not hand to the witness a weapon he allegedly used.
After that Accused was told to go with and accompany Detective
Trooper Lekaka. The witness remained to attend to other
investigations. Later on Accused was admitted for remand and bail
granted. P. E. was later held.
the witness says he later met the Accused and Trooper Lekaka where
they had waited for transport at the bus stop. When he arrived he
found the Accused wild, difficult and unwilling to go to the police
station. He had to be overpowered and was forcefully handcuffed
because he was resisting. One of the fingers of the witness was even
bit by the Accused who held
on to the
witness. In order to have the witness extricated Trooper Lekaka even
had to take out his firearm and shoot the Accused on one of his legs
thus damaging his toe. This ended in the leg being placed in Plaster
of Paris and the Accused going on crutches. It was because the
witness was in danger. The witness had been pleading for help. The
Accused had been resisting arrest. He was to be brought under
control. The shooting happened inside a hut where the witness found
the other police officer (his colleague) and Accused. Accused was
sent to hospital as a result of the injury to his foot.
witness did know whether there was another Maraling other than
Maraling who ran a business. The witness said one Maraling was the
one who handed over the Accused. Maraling did not provide them with
any beverages. They went via a place called White Hill. There they
did not drink anything like beer. Nowhere had he taken beer together
with the Accused. He would not know what transpired between Trooper
Lekaka and the Accused after the witness had left the latter with the
former as aforesaid. Indeed the witness was surprised as to why the
Accused had suddenly become hostile and was not obeying instructions.
He however did not attempt to find out what had happened after they
separated. The witness denied that he became aware that the Accused
and Trooper Lekaka had become intoxicated. He denied having fought
the Accused. He replied that he would not fight a person under his
control. Indeed there had been a struggle because Accused refused to
go along peacefully with the police officers. When it was suggested
that intoxication was result of that strange behaviour from Accused,
he would not deny if in his absence there had been such drinking. The
defence did not end up suggesting what influence the element of
intoxication could have had on investigations or any relevant
factors. I found the witness to be a straightforward and reliable
witness was PW 4 who was Trooper Joel Lekaka. He was a fellow worker
with PW 3. On the 16th May 1993 he was at Sekake Police Post in
Qacha's Nek. He had retired from the police force in the year 2000.
He was involved in the investigations of the present case. They had
received information from two messengers of the chief concerning the
death of the Deceased. One of the messengers was the Accused. The
witness had met the Accused several times before. That was so even
after the event of discovery of the body, at Ha Sterling where the
witness was on his normal police duties. They had met later when he
was accompanied by sergeant Jobo (PW
witness and police officer Makhutla followed the report.
the report they attended at the village where they met the chief at
then shown a dead body of a man next to a school building. The
witness and his colleague examined the body to discover any wounds.
There was only one wound on the chest. The body was thereafter taken
to a mortuary in Qacha's Nek, On the way the body received no further
injuries. The witness and the chief's messengers including Accused
parted at the school building where the body was found.
witness was on a mission later. It was to arrest Accused. They
succeeded to do so at Ha Sterling. The witness was the one engaged in
investigating the case. He did meet the Accused after he had reported
the matter to the police. It was, on the last occasion, when they
were together with PW 3 to arrest Accused which they succeeded to do
witness confirmed that they went with the Accused and PW 3 towards
the bus stop. Having crossed the river PW 3 left the Accused with the
witness near a village. PW 3 was to attend on some other business. PW
3 was seniormost. The twosome proceeded to the bus stop. There in a
small village a cafe near the bus stop they waited in that cafe which
was housed in a flat-roofed building. The witness did not describe
the building as a hut. It was in that cafe that the witness took beer
together with Accused who also bought bottled beer for himself. They
(police officers) had previously been having drinks. He did not
however know if the Accused had previously had beer at Ha Sterling.
later arrived after a short time (fifteen to twenty minutes). They
prepared to go. Accused then refused to go and said he would not go
to the police office about a charge he did not know about. He
resisted going with the witness and the other officer. The witness
said they had to overcome the Accused in order to handcuff him. It
was only after he was shot on the leg that he succumbed, having bit
PW 3 on one finger. He explained that at the time of the struggle PW
3 exclaimed that he was bit. The witness took out a gun to shoot in
order to disable the Accused. It was then that they were able to
handcuff him. The witness had not even fired a warning shot. The
Accused was taken to the police office and then later to hospital
He later saw Accused after some months. It was a casual meeting in
cross examination of the witness was to find out if the witness had
earlier taken beer. The witness agreed. Secondly whether he knew if
the Accused had earlier taken beer in the village which the witness
said he had not known. At Ha Sterling the witness was taking beer
with villagers and PW 3. The witness agreed that this aspect of
having taken beer with Accused was a bad practice that police rules
did not allow. I had no reason to doubt the evidence of the witness
who substantially corroborated PW 3. That became the end of the
application for discharge of the Accused, for absence of prima facie
case, was rejected by this Court. At that stage the defence had
agreed that there had been a free-for-all as a result of which a
prima facie case could not be established. Refer to the admitted
evidence of Mosaluoe Phatela which established that free for all on
the last occasion of the commission where Accused proceeded towards
the fighting. "In my view I thought he was going to stop the
fighting. It was after that that an alarm was raised that someone was
dying." I also noted that Accused was said to have (himself)
reported the death to the chief as testified by the witness. I
was obvious that on the principles enunciated above a reasonable man
might return a verdict of guilty if not on the charge but on any
other offence of which he would be liable." I dismissed the
application as shown in my ruling of the 1st day of December 2000.
Accused testified on his own behalf He said he resided at Tebellong.
He was a married man with three children. He recalled the events of
that day when there was a concert at a school in 1993 organized by
the secondary school. He was detailed by the chief to oversee the
good and peaceful running of that concert. The concert was to be in a
church building. The Accused introduced himself as the chief's hand
to the teachers and children. He was introduced to one headmaster.
Announcement was made publicly that the chief expected orderly
conduct of that concert. That the witness would intervene whenever
there was a disturbance and where necessary he would stop the
after beginning of the concert there was confusion. This involved one
They were noisy. They had quarrelled and wanted to fight. This was
investigated. One Mofolo who was the instigator was expelled. There
was progress and order for some time. Trouble erupted once again.
Accused was not able to identify those who were involved. This
necessitated a stoppage of the singing. He gave one more notice that
he was dismissing those who were causing mischief and stopped the
concert. He felt there was a need to dismiss occupants and stop the
concert. They listened and left. School children went out first.
Sello and others remained in the concert room. After thirty minutes
of the dispersal of the children Rantekane arrived. Some children
were still in the church. Rantekane reported that there was someone
who had been discovered fallen outside. There was moonlight. The
witness saw blood next to the body of the Deceased who was found
fallen nearby at a spot outside near a classroom. There was no blood
at any other spot. The body was already cold. That is the Deceased
had already died. The Accused then went away with Maraling, Rantekane
and one Pitso. The body was left where it was. They went to report to
Accused said he reported to the chief that there had been a fight.
That the Accused stopped a commotion or fight on the first occasion.
On the last he stopped the concert. In the meantime he left some boys
to watch over the dead body until the next morning. A letter was
written to the police on the next morning which the Accused
delivered. There he made an explanation to the police. It was the
same explanation as the one before the Court. After that they found
transport to White Hill where the Accused alighted and proceeded to
his home. He gave a report to the chief. Police came the next day.
They proceeded to where the body of the deceased was examined. A
wound was found on the middle of chest. The body was released to the
said when he had gone to the concert on the previous day he had not
carried anything. It was one Mofolo who had carried a homemade
dagger. Otherwise he had seen no one carrying a weapon. The Accused
had not been aware of Deceased's presence in the hall. Accordingly he
would not see him do anything. He did not see him leave the concert
hall. He saw the witness Maraling, and Mosaluoe, the latter whose
evidence was admitted. He also saw PW 1. They were present in the
concert hall. He quarrelled with neither. He was not aware as
time which they left. He reiterated that he did not see the Deceased.
He did not assault the deceased nor stab him with a knife. He saw PW
1. The Accused testified that he had himself quarrelled with no one.
He never assaulted the Deceased. Neither did he intervene in the
fight between Deceased and Maraling. Neither had he seen Maraling and
Deceased fight Accused denied any involvement in the fight nor that
he stabbed the Deceased. He therefore did not know why the Crown
witnesses picked on him. It could be that they were against his
having stopped the concert. He denied that he had been drinking nor
that he was going up and down in the hall. He denied that there had
even been any drinking in the concert hall.
testified that he was only arrested after about a month after the
incident. He did not know why the police had to shoot him in the leg
as they did. He was shot while already under arrest. He was
hospitalized afterwards as the given medical book showed. He was
later remanded and granted bail Accused said he did not know why
police shot him.
Mokitimi, Crown Counsel had during the proceedings left the office of
the Director of Public Prosecutions to another government department.
She was recalled specially for this case through intervention of the
Registrar. Otherwise the progress of this case would have been
stultified. This is the line of cross examination by Miss Mokitimi: "
Q. Ntate Maqalika, on that fateful night were you ever near the
Deceased person? A. No.
you have any difference with the Deceased? A. No not at all.
would you say your relationship with the Deceased was? A. They were
that night were you holding any weapon? A. No.
even a stick? A. Not even a stick. Q. Nor even a knife? A. Not even a
knife. That is all."
was obviously no need for re-examination from Mr. Monyako.
questioning of the witness by my Assessor was much more helpful. In
response to it the Accused replied as follows: Maraling was the
Accused's brother. He was present at the concert. He never quarrelled
with anybody. There were boys from Ha Phatela. No one fought with
them. That PW 2 said the Accused helped Maraling who was quarrelling
with someone in the hall, the response was that that could not be
correct. When he was reminded that it was said that he (Accused) came
from the side and stabbed the Deceased, he said there was no truth in
that. That furthermore he shook a knife in the air and said "I
stabbed him". He denied that that ever happened. It was
suggested that the Accused had held a beer quart bottle for some time
in the hall from which he was drinking. This he denied and added
there was never any drinking of beer in the hall. That PW 2 had said
the Accused had held a stick in his left hand and a knife in his
right hand. This he denied. That Accused stabbed the Deceased from
the side of Maraling. That Accused also denied even suggesting that
Maraling and Deceased never even exchanged blows. When it was put to
him that one witness also corroborated PW 1 on this aspect. Accused
replied that none of those things happened. A suggestion was made
that the likelihood was that in order to intervene between Deceased
and Maraling the Accused must have held a stick or some weapon and
could not have been barehanded. He replied that the orders given to
him were that he should not carry any weapon.
examined by the Court the Accused confirmed the Court's observation
that substantially there was nowhere he agreed with the Crown's
evidence. He said the reason was that he was being falsely
incriminated by people who had no intention of telling the truth. He
stated that the only fight that there was was between one Mofolo and
one Bahlakoana. Hood was not involved but he was the one who
intervened together with the Accused. He was never involved in a
fight. It was said they were involved in fisticuffs. Maraling came
into the scene. This he denied completely. Accused said he was the
only one who intervened. He denied further that Maraling had made as
if he was intervening but it was a guise or a ruse to enable him to
assault those from Ha Phatela village. This he also denied. That
Maraling beat Kamele and Rantekane with fists. This he also denied.
added that people only got out of the halt where they were dismissed.
That Maraling never came back with an iron rod. He denied this that
the witness went towards the door. That Deceased then asked Maraling
why he was assaulting PW 1 when it appeared that PW I was not even
fighting. Accused replied that he never saw the two together nor in
fighting posture. That Maraling had replied "Go away"
(Fotsek). This he also denied. He also denied that it was then that
Deceased and Maraling got into blows. That there was witness (PW 1)
who was at that time standing aside and watching. It was also denied
that there was even such fighting. It was suggested that then the
Accused came from the side, parried the blows of the Deceased and
stabbed the Deceased. This he also denied. Then the Deceased
exclaimed to PW 1 that he must go aside because Accused had already
stabbed him. This he denied. When asked as to why the witnesses would
incriminate the Accused he replied that it was a scheme by them to
run away from what they did. That he was the only one who used a
knife he replied that it was part of a plot because he was the
very clear to the Court that the Accused was prepared to deny
everything about his involvement in any offence including innocuous
one. He denied involvement in the second scuffle, the one allegedly
leading to the assault on the Deceased. The question would be why he
was absent in this one when he ought to have at least intervened. He
denied that there was drinking in the hall. He denied that Maraling
was involved in any scuffle. All this denials were made because what
he said was a plot against him.
note that it was not denied that the Accused reported the matter to
the chief and he was one of the messengers to the police. Despite
this the Accused was shifty and clearly bent on lying. More of this
kind of attitude was to come from Maraling who became DW 2.
Maraling Maqalika testified that Accused was his brother (uncle's
son). He said he originally did not know why Accused was arrested.
Those arresting Accused did not tell the witness. He found out later
that Accused was charged as allegedly as having killed Deceased The
witness went to that concert where Deceased was allegedly stabbed. He
went alone. He arrived arrived after the concert had begun. He had
carried no weapons at all. He said the concert hall was lit with a
column lamp which is a paraffin lamp. He said there were no other
observed that this was contrary to the alleged presence of candle
lights in the hall. He said there were none except the column lamp.
DW 2 said
he observed that there was a quarrel between one Mofolo and one
Bahlakoana. It was a quarrel which resulted in Mofolo drawing out a
knife intending to stab Bahlakoana. The Accused successfully
intervened and stopped the fight. By the chief he referred to the
Accused. There was quiet after that and the concert continued. The
witness did see that the two fighters remained in the hall. There was
yet another noisy eruption although the witness was not aware where
it came from. There was then a tot of confusion. As a result the
Accused ordered all the children out of the hall and to disperse,
because there had been chaos in the hall. It seemed all they wanted
to do was to fight.
children were driven out of the hall by the Accused the concert
having been closed some people including the witness remained at the
table and were not connected with the confusion that had just
occurred. The school children stood at the back towards the corner.
They were ordered by the Accused, the teachers and others including
the witness who assisted. The people who went out of the hall were
boys and old people. Before the Accused ordered the people out the
witness said he was involved on the second occasion because he was
with students protecting them. The witness said he did not see the
Deceased during the second eruption.He had gone out with the crowd.
The witness did not notice in what condition the Deceased was when he
left the hall. Before the people were ordered out the witness said he
neither assaulted PW 1, Deceased nor quarrelled with anyone. He
denied that he even got into a squabble with PW 1 nor did Accused
intervened. Neither did the witness quarrel with the Deceased. The
Deceased had appeared much younger than the witness as the witness
had observed. The witness was not able to know why it was stated in
evidence by the Crown that he had quarrelled with PW 1 and Deceased.
It was because nothing like that had happened. He would not know why
he was unfairly implicated.
the hall a certain report did come after some considerable time. It
was brought by one Rantekane The gist of the report was that there
was someone outside who had fallen. The witness did go to the spot
together with the teachers and the chief. On his arrival he saw that
someone lying supine in a pool of blood by his body. The witness was
only able to see the blood around the body.
witness denied that there was any drinking of beer in the hall.
Rantekane's home was at Ha Phatela village. It could not be correct
that he (the witness) beat up boys from Ha Phatela village. Neither
had he quarrelled with any of them. The Deceased could have been
assaulted at a place away from the hall. After the incidence they
were with the Accused, the headmaster, Rantekane and the witness to
report. That was all the witness knew about the events of the concert
Counsel did not see fit to cross examine this witness. Neither was
there any need for re-examination therefore by Mr. Monyako for
defence. My Court assessor then went about clarifying certain things
from the witness' evidence. This went as follows: The witness agreed
that the period between the dismissal of the concert and when the
report came from Rantekane was fairly long although he was not sure
that it could be thirty minutes. Those who remained in the hall with
students before the report came were just seated and doing nothing
intending to do nothing but watching over the children.
who had previously given evidence said Accused was seen holding a
bottle of beer. This the witness said he did not see. He did see the
fight between Mofolo and Bahlakoana although it did not go far. One
of them had already taken out a knife before intervention. The
witness did not see Mofolo fall down. He denied that it was true, as
PW 1 had alleged, that he kicked Mofolo while he was on the floor.
During this time when Mofolo and Bahlakoana were fighting the witness
did not see the Accused nearby. The witness said he did not hear
Deceased say that he had been stabbed with a knife by Accused before
Deceased got out of the hall as PW 1 testified. The witness denied
having said "Fotsek" (Go away) to the Deceased at any time.
They never spoke. He never attacked the Deceased at all.
denied that he was carrying a stick at that time when Accused stabbed
the Deceased. This the witness denied. The witness said the Accused
was not carrying anything in his hands. Neither the Accused nor
Deceased were drunk because there had been no beer
in the hall. DW 2 said he was not even aware that about two hundred
metres from the hall there a place where there was beer drinking and
sale of liquor.
thereafter proceeded to ask questions. This the Court proceeded to do
in the interests of justice and the Court not being an uninterested
umpire. Mr. Monyako did indeed protest that the questioning was on
some points too strident. It was along the following lines.
witness had quite recently known when the case was in Maseru that he
would be a witness, although he would not know the exact date. He
agreed that there was a scuffle on two occasions. He said in none of
them the Accused was involved except as a chief. In only one of them
he was involved. He intervened on two occasions. On the second
occasion it was not clear what was happening the Accused was seen
removing everyone from the hall. The witness did not see anything but
chaos. He ultimately agreed there was fighting He was able to see
there was fighting when he saw people pushing and the chief exhorting
them to go out of the hall. He saw that there was fighting which
thing prompted the chief to intervene. They were pushing, hitting out
with fists and school children going about confusedly. The fighting
did not concern school children although he had not known where it
started. He did not know the people who were involved in the fight.
questioning was getting tighter at this stage when the witness had to
be warned to divulge as much as was necessary. It was clear that he
was hiding something. If students were not involved it must have been
older people whom he knew. It was because according to him children
and older people were at different parts of the hall. Older people
were the ones who were fighting. When the witness was being clearly
evasive he had to be told by the Court in serious terms that he
should not hide things. Having said he (the witness) and the Accused
had just been involved in taking out some people from the hall he was
told by the Court that there should have been no difficulty in
identifying people who were involved.
witness ended agreeing that he knew some of the people he was dealing
with or who were involved in the scuffle. He ended up saying it was
one Hood. He was fighting with one Mofolo. The latter went out. This
took long for no obvious reason. His intention had clearly
hide as much information as possible. Then he agreed that he was near
them or went towards where they were from the table when told that he
was pretending to stop the fight but himself assaulted people from
Phatela Village. He knew Kamele and Rantekane. It was said the
witness even assaulted those people who ran away. It was said he was
possessed of an iron stick and hit one of the witnesses (PW 1). This
he denied. It was in this situation then that Deceased asked why the
witness was assaulting PW 1, It was then that the Deceased was told
to go away. All this he denied. That the witness and Deceased got
into an exchange of blows with a stick. PW 1 had said he was near the
witness. This he denied. At the time the Accused came. He came
between the witness and Deceased parried Deceased's blows with a
stick and then stabbed with his right hand. This the witness denied.
And thereafter the Deceased remarked that he was stabbed. He denied
hearing that. Neither did he see the Deceased go out of the hall. He
did not know why the witness would incriminate the Accused, the
witness' brother. The witness said he went through the same process
in the past when he was falsely charged. It was said that he had
committed a medicine murder. He said the Accused was incriminated
merely because he had intervened.
Monyako remarked that the questioning was harsh and questioning the
witness despite the Crown Counsel having not challenged the evidence
of the witness. I have already communicated my role and why I
intervened with regard to the Accused. I had a distinct impression
that the witness was not only rattled but he was exposed as a liar
and someone who would go all out to hide the truth. On this instance
it was to protect the Accused, his brother.
submitted there were two versions one for the Crown and another for
the defence. I did not use the test of weighing the two versions as
was suggested I should. It was also said therefore the Crown has not
proved its case beyond a reasonable doubt. I did not agree most
respectifuly. All 1 observed was that in reality here were two
credible witnesses PW 1 and PW 2 who were present in the concert hall
and who knew the Accused and the Deceased fully. Their evidence was
overwhelming. No motive was suggested as to why they allegedly
falsely testified against Accused. On the other hand was the evidence
of the Accused and DW 2 who told palpable untruths and were prepared
to deny every piece of evidence and to distance themselves as much as
possible from the events surrounding the fight between Deceased and
DW 2 and later
involvement of the Deceased. Despite having been identified they
attempted to stick to their story namely that while they intervened
in the first scuffle (involving PW 1 and DW 2) that they had nothing
to do with the second one which the Crown witnesses said it involved
Deceased, Accused and DW 2 on the other hand. The attitude of both
Accused and DW 2 showed just that intention to deny not only
immaterial things but all things that concerned their involvement.
The Accused's attitude had been even up to the stage when he applied
for discharge that he had also been involved in what was a
free-for-all. That meant that he was also involved. He later changed
be a matter of common sense that even though the Accused had been
acting as a chief throughout except on this last scuffle when DW 2
who was his brother was involved. The motive was to defend his
brother. Even then this was not commensurate with the attack his
brother faced. Accused acted excessively. Then he took sides with
fatal consequences. That had been preceded by the Accused's question
as to what was happening to "his children". He meant DW2.
has already acknowledged that PW 2 could have clumsy in his
demonstration of what happened during the stabbing but he fully
corroborated PW 1 in all respects. As I have judged both were
reliable witnesses who were not shaken under cross-examination. On
the other hand the Accused and his witness were shifty and bent on
lying. They denied everything short of saying that they were just
seated throughout did not do anything or see anything. Their
reticence said it all. The Crown witnesses told their stories well
and in a highly convincing manner except for the clumsiness PW 2.
Accused and his witness on the other hand lied "in a detectable
manner throughout." See PEKANE BAKINYANE CRI/T/89/94 15th May
1995 per Maqutu J at page 9.
of PEKANE BAKINYANE (above) which was referred to me by Mr. Monyako
on the question of lack of corroboration of the evidence of PW 1: I
also found useful in other respects. Most importantly was the
attitude of the Court where as it is trite law the Crown has onus of
proof which it has to discharge. "Accused should not be
convicted merely because he is a liar as this one appears to be."
The distinction with the present case is that the evidence of the
very convincing and overwhelming, while the Accused's story is
inherently improbable. In PEKANE BAKINYANE'S case (above) there must
have been doubts about certain factors for example that of
identification. That is why the accused was given benefit of doubt.
It is the
credible evidence in the present case that leads me to that Accused's
"explanation is improbable, but that beyond any reasonable doubt
it is false." See R v DIFFORD 1937 AD 370 at 373.
mindful that as Davis AJA said in R v M 1946 AD at 1027:
"The court does not have to believe the defence in all its
details, it is sufficient if it thinks that there is a possibility
that it may be substantially true."
concluded as shown earlier that the Accused's case was demonstrably
false and inherently so improbable as to be rejected as false.
only say that as the facts suggested the Accused did not have any
intention to kill the Deceased. He killed him negligently. I would
not take the fact that the Accused used a knife to stab the Deceased
at a vulnerable upper portion of the body as showing intention to
kill. As I have said the circumstances indicated otherwise. What one
can call spontaneity of action or response to things (the fight
between Deceased and DW 2) seemed to have been what governed to
behaviour of the Accused. Contrast REX v NEKO MAJARA
1991-96(1)LLR750. Accused would therefore only be guilty of Culpable
Homicide. My Assessor agreed.
by the Honourable Mr. Justice T. Monapathi on the 8th day of August
This is a
1994 murder case judging from the case number by which it goes. The
that by the 6th February 1995 something was happening towards making
the case to commence. Happily by the end of last year the case
commenced in earnest and it was in a rush so that by the end of June
this year all that remained was a judgment to be pronounced. There
was judgment yesterday which resulted in the Accused being convicted
of Culpable Homicide after judgment was read.
Accused person has been convicted as aforesaid. I have made my
reasons about how I found that he still had to be convicted of having
said to have committed killed negligently despite that he used a
lethal weapon on a delicate part of the body. In his favour what was
found was a single stab wound on the chest of the deceased. I
justified in my judgment why I would not find that he intended
(dolus) to kill either in the direct (directus) or indirect
circumstances of what was happening on this night of the concert
suggest a situation where an unfortunate thing like this was likely
to happen. Although this Accused person himself denies that there was
drinking there must have been drinking and I believed witnesses who
said he had been drinking. And he himself was drinking. This is what
I believed. The only problem is this one of attaching a moral
judgment to drinking when it is not absolutely shameful. They do not
realize that in appropriate circumstances Courts will regard drinking
as a mitigating factor.
like in this concert hall there was a lot of singing, a lot of moving
up and down. There were occasions where there were fighting, one of
which the Accused himself intervened. Because it was undeniable that
this man must have been sent by his chief as his hand to see that
there was order in that hall. What was just unfortunate was that he
got involved in a fight that involved his brother. 1 want to believe
that if it was not his brother who was involved he could
been involved in this fatal action.
If I saw
things well through the evidence there were both children and adults
in the hall. One can imagine what happens in situation like that. I
am satisfied that the Accused is not a young man. He is a man with a
family, a wife and three children. That is a family to support.
that, during the course of his arrest he appears to have received an
injury. I am not prepared to go more into that except to say it
appeared to have been a rather dangerous injury that he received.
This was to the extent that his leg was placed in Plaster of Paris
and Accused was not even immediately remanded because it was felt
that he had received serious injury. These things I considered in the
Accused's favour. Adding on to that injury was the fact that the
treatment and medication still follows up to date as the green
medical booklet shows. This I also took into consideration.
Accused has committed a serious offence. It is serious because a life
has been lost. That dead man will not come back. If he was a family
man his family would remain without his support and without no one to
fend for that family. That is why our Courts are enjoined to mete out
punishments for people who have committed crimes.
also that the Accused was a first offender which however does not
mean that he becomes immune to certain punishments nor necessarily
that his sentence has to be the lightest of them all.
is not an easy task because you have to balance so many things. In
your discretion as a Court you try to balance a lot of things. And
you avoid a sentence that is shockingly lenient nor a sentence that
is shockingly harsh. You use your discretion to give a punishment
that meets the crime that has been committed, a punishment that takes
into consideration the circumstances of an accused person an
individual and it must be a sentence that addresses itself to the
sentiments and expectations of the community so that the Courts are
not held in disrepute. Because the community has its eyes open to see
that sentences are not nonsensical. I am saying the community has its
eyes open to see that sentences are not nonsensical. And one of the
things to consider will be whether the person has a previous
conviction and again the prevalence of the crime in the community.
The motive behind the commission of that crime and then remorse.
many purposes for which sentences are imposed such as deterrence,
retribution and seeking to rehabilitate an accused person. As I learn
this is the emphasis that is put in in most the penal systems these
days. Deterrence is also stressed. So that others with like minds
will see that there is no value in committing crimes. So that
sentences become a form of a real warning to the community at large.
country sentence is the discretion of the Court. The Court looks at
so many things such as those I have just summarised. Sentencing like
all social disciplines ends up becoming less than a perfect art and
becomes full of disparities. Indeed in response to complaints about
sentences that have been meted out in the past the Law Reform
Commission of Lesotho has issued out a commentary in Reference No. 1
of 2001. It is called Sentencing Trends in the High Court and The
Court of Appeal. In the background to this commentary is a feeling
from this Courts are haphazard, and they are arbitrary. And that
there is no thinking about some sentences that are imposed as being
too lenient "to people convicted of serious crimes."
the recommendations that will be brought about following the above
commentary will result in a grid/table eg. murder without extenuation
12-20 years. Culpable Homicide 6 -12 years with suspension and so
forth. Because the authorities tell the Courts that they are fed up
with sentencing trends. Speaking about Guiding Principles in his
Monogram Sentencing Guidelines in Lesotho The Hon. Mr. Justice S N
Peete says at page 5:
"The need for working out guiding principles become even more
pressing when glaring disparities occur and certain judicial officers
are targeted by critics as being lenient. Guidelines may be a helpful
solution without eroding the judicial discretion in the matter of
not say anything more than that except to say that sentencing is not
an easy task.
that one considers so many thing that one observes as a sentencing
Court. Even as a Court one investigates things that can favour the
accused person. All one is briefly saying is that this man should not
be punished harshly or leniently but be given a reasonable sentence.
We believe that this man should be enabled to come back to the
society. And that if he does go to prison having been incarcerated,
he still goes into a community of human beings. So that a prisoners
remain human beings. The best attitude, if not an ideal, one dictates
that he must be dealt with reasonably at all times. A prisoner is
someone who has just wronged the society and nothing more.
have in our statute book a requirement or provision that people or
wrongdoers will be sent to prison. A lot of things are done in most
jurisdictions to want to avoid the harshness or the eventuality of
people going to prison. This is brought about by different types of
sentence that seek to avoid people going to prison most of the time
for petty offences. There are these sentences such as suspended
sentences, community service sentence(See Criminal Procedure and
Evidence (Amendment) Act No. 100 of 1998). and some other sentences
that makes a real effort to avoid the hardships of imprisonment or
even the stigma thereof. Where speaking of community service one
Service is an order of Court whereby the offender is offered the
opportunity of compensating society for the wrongs he has done by
performing work for the benefit of the community instead of going to
prison. Community Service - as an alternative to custody - Penal
Reform International - October 1999.
matters stand imprisonment is still part of our statute book. It is
because our Courts and the community feel that there are those wrong
doings whose punishment can only attract incarceration and
imprisonment if there is reality in the kind of sentences meted out.
This is the reality of the legal situation. As I have said before
there are certain ways in which the harshness of imprisonment is
ameliorated in so many ways one is community service sentence. I
speak about another example such as where a prisoner is released
during the day to assume his normal or employment as an ordinary
citizen but spends nights in prison for a specified period. It is
because there has been a realization that prison is not a complete
back to say that the Accused has taken the life of a fellow human
being. I have to give him an appropriate sentence having considered
all those factors I have already spoken about some which are
mitigating as I did observe.
Sir. I will send you to a term of imprisonment for five (5) years.
Only two of those I will suspend for three years on condition that
you do not commit a crime involving violence on a human being.
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