HIGH COURT OF LESOTHO
MOTSOELI First Accused (Al)
MOTSOELI Second Accused (A2)
Crown: Miss Mokitimi
Defence: Mr Fosa
by the Honourable Mr. Justice T. Monapathi on the 18th day of
Thabiso Kalake died on the 13th September 1994 at or near
Lekokoaneng, in the Berea district.
no dispute that the Deceased died as a result of a stab wound on the
shoulder inflicted with a knife. Deceased had had other injuries on
the head. What remained was whether the people charged with the
murder killed the Deceased with the requisite intention to kill.
Accused were charged with the murder of the deceased. They pleaded
not guilty to the charge. The Accused in 1997 were said to be both of
the age of twenty two (22) years. They cannot both be of the same age
since they are brothers.
like there were two fights between the two Accused and Deceased the
latter who was joined by PW 4 on the last and fatal fight which
followed events of the previous day or alleged unsavoury conduct by
Deceased towards A2's sister.
Preparatory Examination (PE) had been held after whose completion the
Accused were indicted. Of the seven depositions of the witnesses who
appeared before the PE those of Mamotlatsi Nte (PW 2) and Tona Kalake
(PW 1) were admitted and read into the recording machine and were
declared to be part of the proceedings.
events of the first fight were between Al and A2 the aggressors on
the one side and Deceased on the other side will be largely common
cause. It is the events or sequence of the events of the last fight
which are contested on a really narrow plane if not on an even
restricted legal issue as to whether A2 had
to kill when he stabbed.
testified at the PE that she had seen people going towards a certain
place in the village. She followed those people. There she found the
Deceased with one Itumeleng Kalane (PW 1 at PE) who later testified
as PW 4 in this Court. Deceased had sustained injuries on the head
and a stab wound on the left shoulder.
witness did not ask the Deceased about how he sustained the injuries.
PW 4 gave an explanation. The witness walked the Deceased who they
supported for distance but he got tired. The witness then raised an
alarm after she had left the Deceased with PW 4. The witness set
about finding a vehicle to carry the Deceased to hospital. She had
also intended to report the matter to the chief.
witness returned she found that the Deceased had been moved to
Deceased's home. A vehicle had been obtained. And the witness and the
Deceased travelled to the hospital and Charge Office. The Deceased
was in the presence of the witness, conveyed to hospital. On their
journey from home the Deceased sustained no further injuries.
following day Deceased was reported to have died. The witness was
also asked by police to hand over the Deceased's stick and she
PW 4 at
the PE Tona Kalake deposed that Deceased was his younger brother's
son and had otherwise been in good health when he got a report about
witness later identified Deceased's body before the doctor who
performed a post-mortem examination. The body of Deceased was later
released to the witness for burial.
PW 1 at
the trial was Sam Khelemethe. He testified that there had been a
drinking session at the kraal on this day of the fight. It was after
a wood gathering "letsema" Deceased was present at the
gathering. What became unusual was that A2, while at the same time
delivering a blow with a stick on Deceased, remonstrated with him "to
do that what you did or attempted to do yesterday." A2 would say
that the Deceased, who was being urged by PW 4 through provocative
dance and statements, was the original aggressor. He would say that
as a result his helmet even got broken by Deceased's blow with a
witness stated that A2 delivered another blow. The third blow was
warded off by the Deceased with his own stick. It was at that time
when Al came from behind the Deceased and struck the latter with a
stick after which the Deceased ran away.
he followed the Deceased and the two Accused who however overpowered
him. Further on the witness noticed that PW 4 had joined as a result
the witness was able to intervene. After PW 4 joined Deceased had
then refused to go home said he wanted to go back "where people
were". This suggested that he wanted to continue with the fight.
and PW 4 had then gone back to where the Accused were. They met
Accused along the way. The witness had then decided to go home and
not get involved any further.
witness passed next to where the Deceased was with the Accused he
noticed the Deceased fall against the fence and as soon as he did
that A2 stabbed the Deceased with a knife on the chest.
view it will be significant as to why A2 was seen stabbing the
Deceased with a knife when the accepted story will be that at that
stage Al was
who was pitted against the Deceased while A2 was on PW 4 in a stick
fight. The Court will deal with this later on.
witness continued to say that he saw the Deceased hit anyone and he
never saw A2's helmet being broken. He also said he did not see any
stones being thrown towards the Accused by Deceased and PW 4. He did
not see Deceased assault anyone.
witness' evidence was largely unchallenged about the general flow of
events. He said it was the Deceased who first arrived at the kraal.
Later arrived Accused who then charged the Deceased as said before.
witness confirmed therefore that there were two stages in the fight
between the Accused and Deceased who was joined by PW 4. In addition
that at the kraal it was A2 who arrived finding Deceased already
Manthofeela Habasisa testified that the gathering at the cattle kraal
was a result of a wood gathering "letsema" after which the
participants were being given food and beer.
but gone into the house after attending to those gathered outside
heard sounds of sticks at the kraal. As she looked outside she saw
Deceased covered with blood on the face. He was running away and the
two Accused were chasing after him presumably towards the fence of
witness said she noticed that PW 2 was armed with a knife. She.
decided to run behind the group. At the same time she was shouting
"Beware of the knife". At some point Al threatened her with
a stick as she was asking what the problem was. It was then that she
heard Deceased say to PW 4 that they should "go back to the
people." This suggested that they should re-engage the Accused
in a fight. The witness went back to her home. This witness' evidence
was that when she arrived at the yard of 'Mapuleng Deceased already
had wounds. She had not seen anyone assault the Deceased.
PW 3 was
No. 38734 Police Woman Ntsitsi. Her evidence was to the effect that
around September 1994, while on duty there arrived the two Accused
who gave her a report. They handed to her two sticks together with an
Okapi knife. The items would be handed in as exhibits in Court.
Having given her an explanation she cautioned them and gave them a
charge of Assault with Intent to Cause Grievous Bodily Harm. The
witness later handed over the three items to policeman Khobatha. She
contended however that she could positively identify them since they
were handed to her. She further contended that
she could not recall which stick belonged to which Accused those
sticks handed to her were not broken.
PW 4 was
Itumeleng Khalane. He testified to say that on the day in question
the two Accused joined others at the home PW 2 after other men had
arrived from wood gathering in the forest. He had been with Deceased
who went to kraal his cattle. They later rejoined and went together
to PW 2's place. It was where they found the two Accused and other
as they had arrived the witness went on to testify at PW2's place
(apparently it was near a kraal) he saw the two Accused belabouring
the Deceased with sticks. Deceased eventually managed to run away.
The two Accused chased after the Deceased but they were prevented
from going farther in the chase by the witness and PW 1.
witness said that the two Accused ended up getting to the Accused on
the fence of 'Mapuleng where on arrival the Deceased fell down. As
soon as he fell on the fence the Accused continued to strike him with
sticks. That the Deceased had been unarmed.
witness continued to say as soon as after the Deceased had fallen on
he saw A2 stab the Deceased along the shoulder area. The Deceased
then fell down.
witness then said he supported the Deceased to walk to one
Mamotlatsi's place. That is where he left the Deceased who was still
alive at that time. He later learned about the Deceased's death the
cross examination the witness said he did not hear the words of
challenge from A2 to the Deceased. He says he could have heard those
words if uttered because he was close enough.
the witness did not see Deceased holding a stick. This was much
against the evidence of PW1 and the general evidence that the
Deceased had travelled back from where he was and came back to the
Accused to engage in a fight with sticks. This is much probable when
considered with the fact that the Deceased had said he wants to come
"back to the people". That expression suggested that he was
itching for a fight and actually came back to engage the Accused
together with the witness. The witness denied that such statement was
witness denied that the Deceased could ever have delivered a blow
he did not fight nor was he armed with a stick.
witness denied furthermore having seen PW 1 who said he was present
and did even intervene. He denied even seeing the Deceased's stick
fall inasmuch as Deceased did not have a stick at all. This was much
against the evidence of PW 1.
witness who appeared to have been all along in company of the
Deceased soon after Deceased re-joined him after kraaling his cattle
was a very evasive and untruthful witness. He attempted to avoid
obvious things such as that he and Deceased came back to re-engage
the Accused although the Accused gave a different reason for having
followed up the Deceased and the witness.
witness however has to be believed that ultimately the two Accused on
the one side the Deceased got into the fatal fight. Nevertheless he
denies his own involvement. I would believe that this witness was
also involved in the fight with A2 at one stage. It is one of the
things that he hesitated on or was reticent about that made him
unreliable in some respects. Apparently it was to down play his role
in the whole affair. It is however undeniable that he was in company
of the Deceased on the second occasion which is the crucial one i.e.
after the Deceased was chased away from the place of PW 2.
closed its case after the evidence of PW 4. The two Accused each gave
evidence in their own defence starting with Al.
testified that A2 found him with PW 4 at the kraal of PW 2. PW 4 had
told the witness that he was going to sleep and had apparently left.
Al was surprised to see PW 4 coming back in the company of the
Deceased. The two were waving their sticks in a war-like dance and
testified further to say that when the Deceased was near him he had
been complaining that there was no "manly" songs
(mokorotlo) being sung at the kraal where men had assembled as
aforesaid. At the same time Deceased belittled and abused calling him
a woman and an uncircumcised "boy".
evidence went Deceased first hit A2 with a stick and the blow landed
on A2's plastic helmet. He tried to intervene in response to which PW
4 said "two, two!" This was to suggest that one was to pick
his adversary in combat. A2 had then produced a knife. That is when
Deceased ran away.
witness says he chased after PW 4 at this time but ended up not
reaching the place where the Deceased and A2 were fighting. After
some time Deceased and PW 4 approached the two Accused person
throwing stones at
former seemed to be in a fighting mood. As they arrived at the place
where the witness was the Deceased came and fought the witness while
PW 4 fought A2.
and this was significant, that it came from the mouth of Al that he
hit the Deceased with a stick after which A2 came and stabbed the
Deceased. And furthermore that at the time when A2 stabbed the
Deceased the latter was leaning against the fence. After that both
Accused left the scene. The witness then claimed that he had not seen
the exact place where Deceased was stabbed. What was even more
important to note was that at the last scene this Accused had been
fighting with the Deceased on whom A2 suddenly came to deliver a blow
with a knife. Incidentally the First Accused was candid enough to
admit having assaulted the Deceased with a stick until the moment
when Deceased had fallen and then A2 took over with fatal
DW 2 who
was A2 claims in his evidence that Deceased had been troubling his
sister and the Deceased was reprimanded by the witness. Apparently
this complaint against the Deceased must have been reported to the
witness then said later he went to the place where wood was being cut
found Al to whom he made a report about what was reported to him
about the Deceased's previous conduct.
some time, the Deceased arrived. Deceased then passed a remark to the
effect that the witness and others around at the gathering were women
the witness being the worst of them. It was at about that time as the
witness stated that the Deceased hit him with a stick which broke his
helmet. The witness then said he levelled a blow with a stick and
managed to hit him on the head. The Deceased then delivered another
blow which the witness managed to parry with his stick which got
broken in the process. A2 said he then took out a knife and the
Deceased ran away. People intervened. A2 said he and Al then left
after they were separated from the Deceased and PW 4.
Accused then left the scene. After some time they were approached by
the Deceased and PW 4 who were throwing stones at them. The witness
said they approached the Deceased and his partner because they feared
that if the others went unchallenged they would break windows at Al's
home. The two pairs approached each other and a fight ensued. Al
faced the Deceased while the witness fought PW 4. Al then hit the
Deceased who fell on the ground but supported himself on a fence. The
witness then left PW 4 with whom he was fighting and went and stabbed
the Deceased with a knife on the shoulder. After
As I have
said in the beginning of the judgment it was largely agreed that
there were two incidents or fights involving the two sides of the
Accused and the Deceased with PW 4 on the other hand. The two groups
seemed to have followed closely on each other. To the extent as I
found when PW 4 and Deceased turned back and returned the other pair
seemed to have been following but not sufficiently closely.
both were keen to be involved in a fight. It was however not as if
the Accused would not have avoided the Deceased and his partner if
they wanted to inasmuch as other people successfully intervened and
separated the two groups. Even if one would read into the events up
to this stage that the two Accused could have acted in self-defence
or through provocation I would find it difficult to accept that this
extended up to the second stage of the events that is the second
encounter. The two events seemed to be separable. The reason why the
Accused pursued the other group was primarily that they thought the
other group would break windows by stone throwing.
with Crown submission where was simply put to say that the evidence
put in Court can be said to be that both the prosecution and the
different stories. And that however one thing which was common was
that both Accused persons managed to assault the Deceased with sticks
and A2 was the only person who stabbed the Deceased.
not explicitly said by the defence it could be read from the evidence
however and Counsel vacillated between the defence of either
provocation or self defence. If it was assumed that defence of A2 was
provocation the Crown as submitted, would concede that as to the
first stage of the fight there could have validly existed such
provocation. But A2 had not responded immediately and this was his
time had elapsed between the provocation and the fighting as both
Accused admitted. They said they had been made to stop pursuing the
other side and they only reacted later because stones were being
thrown. The Deceased and PW 4 had been effectively ignored except for
their stone throwing.
light of the fact that enough time elapsed between the provocation
and the fighting the defence of provocation would not stand as I
concluded. Time which is of essence of the purpose of the defence. As
a matter of fact the Accused even said they had been prepared to
ignore the Deceased and his partner but for the fact that they came
back throwing stones.
in Lesotho is that if the defence of provocation stands the accused
shall be acquitted. And if the defence is successful there should not
even be any conviction for a lesser offence. This should also be the
finding in respect of Al although he said he was defending his
brother. His conviction for Assault with intention to cause grievous
bodily harm should stand. The Crown's contention was that this was a
case where a defence of self-defence ought to fail. I agreed with
the cases of the two Accused different with respect to the approach
to the stabbing of the Deceased which was the last stage of the
proceedings. Indeed it could on the one hand be said that it was a
fight involving the four fighters two against the other two. It meant
that, and this was the evidence, that A2 faced PW 4 and Al faced the
Deceased. At the time when the Deceased had been overcome and beaten
to the extent that he leaned against a fence A2 left his opponent and
then administered a stab wound on the already helpless Deceased.
While admitting that he looked away from PW 4 and faced Deceased who
he stabbed he very glibly explained why he abandoned PW 4 and charged
at Deceased who was already vanquished and defencelessly having been
grievously assaulted with a stick by Al. A2 had been wielding his
knife not since but even on the first stage of the fight up until the
chase was stopped by people who intervened as said before. A2 was
possessed of the knife
next stage. I found I could not find intention against him merely
because he had been knife wielding over a long time.
it was in the heat and during the run of the fight that he found
himself facing Deceased when hitherto be (A2) had been facing PW 4.
In the run of the fight he had turned to the Deceased who he stabbed
because he still felt threatened by the Deceased. It can only mean
that he overacted in his action against the Deceased as I believed
him. See Julius Pone v Director of Public Prosecutions 199-2000 LLR
say this that A2 overacted even against the background that this last
fight followed on an earlier encounter and that the intent of the
Deceased and his partner on the last occasion was to re-engage the
two Accused according to the evidence of PW 4.
evidence of A2 might reasonably be true and even on his own evidence
a case of culpable homicide can be said to have been proved. I would
not say that the Crown proved its case beyond a reasonable doubt that
A2 was guilty of intention to kill either dolus or otherwise. He can
only have killed the Deceased negligently.
feeling is that Al is guilty of Assault with intent to do Grievous
Bodily Harm and A2 is guilty of Culpable Homicide. My Assessor
by the Honourable Mr. Justice T. Monapathi on the 8th day of October
Accused are cousins. In Sesotho "Emong o re emong ke oa
Rangoana'e". The first one has been convicted of assault with
intent to Grievous Bodily Harm. This other one has been convicted of
that the circumstance surrounding the two assaults are primarily out
of the provocation caused by the Deceased. It had to do with the
remarks that the Deceased is said to have said about the other
Accused being a woman or something like that. And also against the
background that there was an unsavoury something that the Deceased
had done to the sister of one of the Accused which seemed to have
occurred before or the day before that day of
where wood was to be gathered.
that "letsema" there was drinking and merrymaking at the
place of PW 2. The Deceased and PW 4 having arrived finding either
Accused 1 (Al) or Accused 2 (A2) present. After those remarks by the
Deceased there was some fighting with sticks. At that time A2 was
seen carrying a knife. Then on the second occasion it is then that
there was that final fight which resulted in A2 stabbing the
judgment I remarked that I did not understand why A2 had to stab the
Deceased when the Deceased had been fighting with Al. These are the
circumstances about the fight itself or the events which ended up
with the Deceased dying. These I have discussed in my judgment But
they all underline the fact that the Deceased provoked the Accused
and finally carried the last fight to the Accused.
that these two Accused persons are first offenders because Mr. Kotele
says there are no records of these two Accused having had any
previous convictions. I have considered the factor in my sentence.
these Accused as I accepted have got the dependents to a different
The First Accused having a wife and three children. The Second being
married with one child. This is an important thing to consider.
death of a Deceased person is a serious thing in that a life has been
lost. The Deceased must have had the dependants or might be having
relatives in the same way the Accused do have. He will never come
back to life. But these two accused even if I sentence them to prison
they will still come back from prison into their own communities and
I have to
re-visit the serous thing that the Deceased seemed to have been the
person who provoked the two accused extensively. And in evaluating
this provocation one has to look at things through the eyes of the
standard of the community from which these two Accused come from as
our law enjoins us to do. Both of them come from circumcision school
and obviously they see things differently in my understanding. And
this I would take judicial notice of that in the people who come from
circumcision school are not happy if one suggests to them that they
are boys or they are women or something like that. To them that is
serious kind provocation.
I do not
know why people from the background of the Accused see things that
way. That is why the law says that one must always judge them by
standard. I would say that I agree with Mr. Fosa that Accused are
unsophisticated people and they are Basotho tribes men.
again that they have been faithful in attending at trial, in abiding
by the conditions of their bail and including that they have obeyed
the warning that they attend even after they were convicted when
their Counsel had fallen ill.
courts of this land are often warned that in having to impose
sentences they must avoid being angry or end up exaggerating the
seriousness of an offence. At the same time one must not as presiding
officer forget that one must mix other consideration with the need
for mercy. But the mercy which one exercises must not end up making a
sentence that one imposes too lenient neither should the sentence be
too harsh. It is because sentences that are too lenient or that are
too harsh will look nonsensical and will tarnish the reputation of
Courts. Sentence must be realistic.
that are realistic will have to take account of the fact that the
public has interest in the judgments and rulings that are passed by
courts. This is proper and to be expected because the Courts belong
to the nation.
same time the Court must not overlook the personal circumstances of
an accused persons it is said that they are unsophisticated people as
a factor together with their family situation.
must look at the crime itself. I have commented about that there was
that first fight there was a second fight in which there was the
assault and the death of the Deceased person. All of these which are
come to an important issue that receives debate on a daily basis in
our courts. Then the question is what is the aim of punishment. One
of them could be that a corrected person is warned not to repeat the
crime that he has committed. Others are warned who may be tempted to
commit the same crime nor commit offence. Sometimes a person is taken
out of the community to protect the community like sending him to
prison. Sometimes a convict is dispatched finally by sending him to
death so that he never trouble anybody. To others question still
remains : What is the purpose of punishment?
modern trend is to say that corrected person must be rehabilitated.
Their behaviour must be corrected. If they sent him to prison it must
also be for the purposes of their being rehabilitated. And there are
many ways of punishment these days that aims at or focus on
rehabilitating an offender. And
it depends on the resources of a community or the satisfaction of a
system that is being run which would dictate a number of options.
That is why if it is a country which has many resources then there
are many options. Our country is not one of them. To a poverty
stricken people fine are not an easy option. That is why we still
remain with a sentence of a prison where otherwise other options
would fit the bill. One of them is diversion. The other that needs
more emphasis is Community Service.
is unfortunate in its result these days is that Courts now are
looking inside the prisons to find what they really look like. The
conditions these days are worrisome. There is overcrowding, there are
insanitary conditions and a lot of bad things now happen in prison.
One finds that there is sodomy and rapes in prison.
said all these I now impose the following sentences:
You Al I
sentence you to three years. That three years I will suspend for
three years on condition that you will not commit a crime involving
bodily harm or violence.
You A2 I
sentence you to five years imprisonment without option of a fine.
Those I do not suspend.
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