HIGH COURT OF LESOTHO
by the Honourable Mr Justice S.N. Peete on the 29th August, 2001.
accused, a mosotho adult aged 38, appears before this court charged
with the crime of murder it being alleged in the first count that
upon or about the 19th day of September 1997 and at or near Caltex
Garage Hlotse in the district of Leribe, the accused did unlawfully
and intentionally kill Mohau Lefosa. On the second count he was
charged with being in unlawful possession of a firearm without a
valid licence. He pleaded not guilty to both counts.
defence admitted the depositions of P.W.9 Molefi Lefosa, P.W.11
Mosiuoa Lefosa and P.W. 13 Dr Seqhobane and these were read into the
machine and form part of the record in this case.
witness called by the Crown was John Mohanoe Lefosa P.W.1 who told
the court that deceased was the son of his elder brother. On the 19th
September 1997 he says he had gone for a drink at Caltex Garage and
was sharing a nip of Gordons gin which he aptly called "konyananyana"
with one Makhabane.
saw a man called Tumelo sitting in the company of the deceased who,
upon noticing him, stood up and came to greet him saying "Hey,
uncle, I did not see you." He then returned to his seat. He says
the accused then came in wearing a Basotho National Party hat and
scarf with green, white, red and blue stripes. After greeting them,
he went to where the deceased and Tumelo were seated.
while he heard some altercation and accused was saying "That one
is talking shit. Come outside." He saw accused and deceased
confronting or grabbing each other, and they went out. After a short
while he heard a gun report and one Ntjolota rushed into the bar
announcing "Hey, someone has shot another." Tumelo retorted
saying "If people are shooting each other why do you come
inside?" There was commotion and when he got out, he found that
Mohau had fallen on the cement stoep and the accused was standing
about five metres away. One Kobeli soon arrived driving deceased's
car and was crying bitterly. This witness says he advised that the
car would not convey the injured man comfortably and that he decided
to use his own van to transport his injured cousin to Motebang
that at the hospital he was allowed to see the wound below the
breast; and after the doctor had examined the patient, he informed
them that Mohau had passed away.
cross examination P.W.1 admitted that in the bar, the deceased took
accused's BNP cap but that he thought they were joking. Mohau was a
BCP man and the accused a BNP. He took them to be friends.
Mahanetsa - P.W.2 - was called as the next witness. He informed the
court that he was related to the accused and that on the 19th
September 1997 he was at Caltex at dusk and was playing cards with
the accused in the public bar. At one stage, he went to see Ntjolota
Monyane in the private bar. As he entered, the accused remarked "By
the way do you drink with silly children in this private bar?"
He asked accused to whom he was referring. He said "This Mohau"
Mohau then said "You, Semakale you will excrete." The
accused then stood up and walked to the door and the deceased came
following him. P.W.2 says he even tried to prevent the deceased from
going out as he then appeared angry. Deceased then said "If you
break my watch, you will pay". Accused was saying "Leave
him so that I give him his mother". He says the deceased grabbed
his shoulder as he went round the partitioning wall. He then heard a
gun report. When he rushed after them, he found the deceased already
lying prostrate. He rebuked the accused who was then saying "Do
you see I told you; you will excrete." Deceased then said
"Truly, brother Semakale do you really kill me."
witness admits that he did not see the actual shooting as he was
behind the wall at the time it occurred. He entered the bar and made
cross examination he says that he did not see any exchange of fists
when the two men were in the bar; he insisted however that he found
the accused holding a gun; he could not dispute the suggestion that
the same gun could belong to the deceased.
he did not see deceased holding anything except a can of beer.
Monyane, P.W.3, told the court that on the 19th September 1997 he was
at the Caltex bar. The accused arrived later wearing a BNP scarf.
After a while, the accused asked "Cousy, how are your party
people" - pointing at Mohau; and later he heard accused say to
deceased "Follow me." After the two men left the bar, he
heard a gun report; and soon thereafter, P.W.2 came in rushing saying
accused had shot the deceased. P.W.3 says when he got outside, he saw
the accused standing by and was saying "stand aside, next."
cross examination, P.W.3 he says he did not see the deceased snatch
accused's cap and wipe his nose with it. He says it is probable that
at the preparatory examination before the magistrate, he could have
said that the accused pointed at the deceased saying that the
deceased had threatened to kill him.
Tumelo Selonyane, told the court that he is related to the accused as
a brother. On the 19th September 1997 he was at the Caltex bar in the
company of many people.
later came in and sat down. The accused also arrived wearing BNP hat,
and deceased remarked "What kind of hat are you wearing? ....
Let me fit it on!" The deceased then removed it from the
accused's head and donned it and then returned
it to the
accused. After this, the deceased went to greet P.W.I, his uncle, who
had called him to greetings.
it was noisy in the bar, but he saw when accused and deceased went
out through the door. Shortly after they had gone out, he heard a gun
shot and people rushed out in panic. He heard someone say "Semakale
is shooting Mohau."
got out, he saw the accused standing by holding a gun and the
deceased was lying prostrate. He says he heard when the accused said
cross examination, he says he did not hear any alternation between
the two men in the bar and that the deceased never spat into
accused's hat before he donned it.
Motseare Mota told the court that he was staying in the living
quarters at the backyard of the Caltex garage. That day he was from
doing some piece job at Sebothoane and returned home between 8 and 9
pm. Soon upon his arrival, he heard a gun report, and when he got
outside to investigate he found two people: one prostrate and one
standing a distance away. When he approached, he discovered that the
prostrate man was Mohau Lefosa and the accused was standing by
holding a gun. He says he asked "Men, what is happening."
Deceased then spoke "Semakale, why
shooting me?" The accused replied, "I can repeat you again!
Next." The people then retreated.
continues to say that he went to the front of the Caltex building to
look for any policeman he could find. He found Chaba and gave him a
report. He identified the gun before court as similar to that he saw,
in accused's hands. Deceased carried nothing in his hands.
cross examination, he says he found Chaba at the front of Caltex and
not in the public bar and that when they returned to the scene, the
accused had disappeared.
Detective Trooper Chaba informed the court that he had seen the
accused earlier that evening at a card game in the public bar. At
about 8 pm. Motseare Mota arrived and asked him to come quickly as
there had been a shooting. At the scene they found Mohau Lefosa lying
prostrate; the accused was no where to be seen. Ntjolota P.W.3
explained what had happened. He then looked for the accused and found
him between the public and the private bar. Accused then made an
explanation and also handed over a 7.65 pistol. Upon releasing the
magazine, P.W.6 says he found it had one live bullet. The accused
failed to produce the certificate for the said firearm. He states
that he also found a 7.65 shell which could have dropped by when the
gun was fired.
the accused to the Charge Office arid after charging him with the
crime of attempted murder he put him into the cell and proceeded to
the Motebang Hospital where the deceased had been conveyed. At the
hospital he found that Mohau Lefosa
already passed away. He examined the corpse and discovered a gun shot
wound below the left breast. Back at the Charge Office he then
charged the accused with murder.
formally handed in the gun and the shell as "Ex. 1"
collectively. During cross examination he explained that he did not
hand in the live bullet because it had not been used in the
commission of the crime.
the crown closed its case, the defence made admissions of the
depositions of P.W.2 Policeman Khanare, P.W.4 Major Telukhunoana and
his ballistic report and the autopsy report, according to which death
of the deceased was due to haemorrhagic shock caused by a bullet
penetrating through the abdominal aorta.
defence then closed its case .
against the accused is clearly a circumstantial one and the following
are the salient facts of the crown case-
the 19th September 1997 the deceased was at the private bar at the
Caltex Garage Hlotse in the Leribe district.
accused arrived later that evening wearing a woolen hat with party
colours of the Basotho National Party.
deceased then was seen removing the woolen hat from the accused and
donning it and returning it to the accused.
an altercation erupted between the deceased and the accused who was
complaining about deceased's behaviour to him.
accused was heard to say "Follow me" and the deceased
followed despite attempts of other men who sought to prevent him.
short while after their exit a gun report was heard.
who was outside did however not witness the actual shooting because
a wall obscured his view.
accused was found standing near the prostrate Mohau Lefosa and was
holding a gun.
deceased was heard saying "Semakale ... u nthunyetsang?"
and the accused retorted saying- "I can repeat you again"
and then said "Next".
the circumstantial evidence adduced on behalf of the crown and there
is no eye witness to the shooting. The defence having closed its case
without putting the accused into the witness box, the test now is
whether the crown has proved beyond reasonable doubt that it was the
accused who shot the deceased and did so intentionally thus causing
view, the uncontroverted facts which I have listed above establish a
strong prima facie case that it was the accused, and no one else, who
shot the deceased. He was seen altercating with the deceased, and was
heard inviting the deceased to follow him out; a gun shot was soon
heard; in my view the deceased could not have uttered the words
"Semakale, why do you shoot me" if accused had not shot the
deceased. The accused could not utter the words "I can repeat
you again" if he had not shot the deceased. He was seen by more
than one witness holding a gun and standing near the prostrate
deceased. The accused has elected not to give any evidence. Even
though the accused had no onus to prove his innocence, the
circumstantial evidence against him was very strong despite certain
discrepancies between the versions at the preparatory examination and
before this court. In the case of S. v. Theron, 1968 (4) SA 61 it was
held that the failure of the accused to testify becomes important
only if there is strong circumstantial evidence against the accused.
The strong prima facie proof becomes conclusive proof. Each case
depends upon its own particular circumstances: The conclusion is
irresistible in this case that, despite no direct evidence, it was
the accused who shot the deceased. I come to a conclusion that the
crown witnesses - despite some discrepancies here and there, - were
truthful, frank and objective. On the other hand, the accused elected
to keep his silence (Tsotang Pelea vs Rex - C of A (CRI) No.2 of 2000
- per Ramodibedi J.A.)
step to consider is whether the shooting was unlawful in that it was
not justified by defences such as self-defence. In this case, it is
clear that the accused might have been angered by the deceased; it is
also probable that the accused had consumed liquor on that particular
evening. There has been no evidence that the deceased went out
carrying anything but a can of beer; we do not know what
outside - except to say it has been proved that the accused shot the
deceased, not in self-defence but because he had been angered by the
conduct of the deceased. He was probably angry when he used the gun
he had on him, but I hold that the shooting was totally unjustified
and therefore unlawful.
inquiry is whether the accused had the necessary intention to kill
the deceased. The accused has not given evidence. He could have
consumed liquor on that day and acted under provocation. He was
however still in control of his actions; he invited the deceased to
follow him to the outside. He shot at him at the upper region of the
body and the results were fatal. In my view, he had a legal intention
-dolus eventualis - to kill the deceased. He uttered words showing
that he in fact gloated over what he had just done. I have no
hesitation to find that he had a legal intention to kill the deceased
and foresaw subjectively that shooting the deceased in the manner he
did could have fatal results.
which was meted to the accused did not warrant the violent reaction
which culminated in the death of the deceased. Whilst the accused's
tempers may have flared, as a result of political arguments of that
evening, I do not believe that the accused's life was at any stage
endangered or imperilled. He had come to the public bar wearing a
political party hat and was already having a probably loaded gun in
his possession. He seems to have been ready to use it at the
slightest of provocations. He invited the deceased out. He used a gun
which, though looking rather haggard, old and weather - beaten, is
still a lethal weapon. I find him guilty of murder. My assessors
agree with this finding.
find that extenuating circumstances do exist in a subjective sense.
These are those circumstances which are not too remote and which
reduce the moral blameworthiness of the accused in the commission of
the crime (Section 296 (1) -Criminal Procedure and Evidence Act 1981;
R. v. Rapule Makhetha - 1991 - 96 (2) LLR 1326). In this case, the
killing was not premeditated; the intention was dolus eventualis;
there existed some degree of provocation and intoxication which
however did not reduce murder to culpable homicide. My assessor also
accused is also found guilty under the second count. The court has
already found that the accused shot the deceased with it and handed
it over to Detective Trooper Chaba and that he failed to produce the
firearm certificate for it.
passing sentence the court considers the following circumstances-
absence of premeditation
of previous convictions.
court has always been stressing upon the sanctity of human life and
that human life can only be violated in special circumstances
prescribed by law; human life thus cannot and must never be taken
over triviality or slightest of excuses. Though
or unplanned the killing of the deceased in this case was "callous",
to say the least and indeed a fist fight could have perhaps settled
the scores! The accused was however ready to resort to a lethal
weapon with fatal consequences. He deliberately shot the deceased -
albeit on the spur of the moment. He could not and cannot justify his
drastic act - hence his silence before this court.
the accused has deprived the deceased his life in unwarranting
circumstances and over a triviality. He used a gun deliberately in
careless disregard to the life of another being. He has deprived a
family its son, his wife a husband, his children a father and
breadwinner and his colleagues a friend. For that, it is my most
unpleasant duty to impose sentence, which in all circumstances of the
case, should meet the interests of the accused and of the society.
Count 1:- 7 years
6 months wholly suspended for three years on condition that the
accused is not convicted of a similar offence during the period of
suspension. The pistol is forfeited to the Crown.
sentences to run concurrently.
Counsel : Ms Dlangamandla
Accused : Mr Klass
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law