HIGH COURT OF LESOTHO
by the Honourable Mr Justice S.N. Peete on the 11th April 2002
accused is facing two counts.
murder indictment, it is alleged that on the 7th August 1998 and at
or near Mafeteng Prison compound in the district of Mafeteng,
Lesotho, the accused did unlawfully and intentionally shoot and kill
one Lekhetho Leokane; on the second count it is alleged that upon the
same day and occasion he attempted to kill one Hlomohang Shoaepane by
shooting him through both thighs. He pleaded not guilty to these
representing the accused then formally admitted as evidence the
depositions of the following witnesses at the preparatory
examination: P.W.1 Superintendent Makaliana, P.W.7 Detective
Inspector Ntsika, P.W.8
Jane, Detective Foloko, P.W.10 Senior Inspector Mothibeli; these were
read into the machine as evidence. Also admitted were the post mortem
report and its findings and the medical report concerning the
injuries under count two.
support of the indictments, the crown counsel Ms Dlangamandla called
P.W.1 Sentle Lebona who told the court that in August 1998 he was a
principal officer at the Mafeteng Prison where the accused worked
also as a principal officer. The deceased and Hlomohang Shoaepane
were prison officers at the same institution.
informed the court that on the 7th August 1998 there was a party held
in the evening to bit farewell to Mr Sechaba Mokhethi who was going
on retirement from the prison service. Certain contributions were
determined at a staff meeting held earner where the type of foodstuff
and drink were also discussed. According to P.W.1 though varying the
amounts of contribution were.,raised at the meeting (Ml5.00 or
M30.00) there was no voting nor clash of opinion.
on to tell the court that the accused arrived later that evening
after the party had started and requested some drink. He says that
accused drank a Hunters Dry and then a Lemon Sting - all alcoholic
wines. He says he then advised the accused to hold his horses because
he would create shortages for other people at their party.
that he then saw the accused vomiting next to a window and he asked
him, "Man, why are you doing such a bad thing ... go a bit
accused did not look drunk but normal. He says he then turned to the
deceased and Lekhotla Moshoeshoe who had approached him for more beer
and remarked that the accused was vomiting because he had been mixing
his drinks. He then heard accused say "what are you saying?"
to which he replied "you mix drink ... that is why you vomit".
accused then retorted saying "you are talking shit" He says
he then pushed the accused aside going towards the store where drinks
were kept. He says as he proceeded thus towards the store he suddenly
heard the sound of a gun being cocked and when he turned around to
look he saw the accused holding a gun and was saying "I am
ready" He admitted that he too was also armed though he in
civilian clothing. Then the deceased and Shoaepane, who had been
standing by, came in between raising their hands saying "Please
do not do this" the accused was pointing the gun at him at the
as he retreated? the accused then pushed the deceased backwards onto
a stoep; and as the deceased tried to regain his balance, he heard a
report of a gun; and then another. He heard the deceased exclaim "U
ntsekisang?" (what have I done to you) to which the accused said
"I told you some day I will get you" He says the accused
then turned towards Shoaepane and shot again.
as people rushed to the scene, he and Moshoeshoe pulled Shoaepane
from where he had fallen. At the time the accused was firing into the
air, and he ultimately departed from the scene.
reaching the deceased, they found that he looked tired and had blood
stains on his shirt sleeve. He was unable to talk. The deceased and
Shoaepane were quickly transported to the hospital. He observed that
Shoaepane had injuries on both his thighs.
the court that he undressed the deceased with the assistance of the
hospital doctor and then noticed a wound on the left arm and left
breast. He says the deceased then died soon thereafter.
noticed that the deceased had his firearm on his waist as they
undressed him at the hospital.
cross examination, P.W.1 denied that he was refusing to serve drinks
to the accused and maintained that relations between him and the
accused had hitherto been cordial during the five years they worked
together as colleagues.
explained that when the deceased was shot he was not near the
deceased and there was no reason why the accused shot the deceased
because the clash, if any, was between him and the accused over his
vomiting on that day. He says the deceased and Shoaepane came only to
intervene when they saw the deceased with a gun drawn.
Accused will say that the deceased and Shoaepane were shot by
No, they were not ... He will be lying to say that He shot them
deliberately ... He shot deceased at one time and at another angle
says when they got to the deceased they found a lady officer Ramatobo
trying to help him. P.W.1 denied that he ever insulted the accused
when he was vomiting or about to.
importantly, he denies that he punched the accused at the back of the
head such that the accused fell backwards on the stoep
Accused then asked you why you punched him and you then reached for
He is lying.
You cocked your gun but it slipped out of your hand and fell down?
Accused remembered his gun as you were going to shoot him ?
No, 1 could have kicked him if the gun was already down. I would not
He pulled it out and shot into the air to warn you and cause you to
He is lying. He did not shoot into the air. Question: You grabbed
It is all fabrications. He lies.
As you ran towards Shoaepane, he tried to shoot your hand and this
was a second shot.
He says he hit nothing but you hit behind Shoaepane?
He heard a gun being cocked and looked only to see deceased pointing
a 9mm automatic at him?
Lies. The deceased's gun was found at his waist at the hospital and I
was with Mothae and Lelia.
He was retreating and shooting? Answer: I never ran away
He realized that his life was in more danger?
He is lying to say deceased pointed him with a gun.
He shot at the deceased's hand to disarm him?
He retreated towards the kitchen?
He retreated after firing many bullets.
He then ran away having climbed and jumped over the security fence?
cannot dispute that.
be noted that P.W.1 denies that no fight occurred in which punches
were delivered; he says that the deceased and Shoaepane had raised
their hands beseeching the accused who then had his gun cocked.
called was Hlomohang Shoaepane P.W.2. He informed the court that he
also attended the farewell party in the prison compound that was held
for Mr Mokhethi. He was sitting down with colleagues and drinking
beer. After a while he went out to ask for more beer from P. W. 1. As
P. W. 1 was explaining that he could not find the keys to the
storeroom where beer and other drinks were kept, the accused arrived
and vomited somewhere near the
says P.W.1 then asked the accused to do his vomiting further down.
P.W.2 then says he later found P.W.1 and the accused engaged in
heated argument about the vomiting and the accused was saying "I
see you have shit" and that the accused then pulled out a gun,
cocked and pointed it at the P. W. 1. He says that deceased and
Moshoeshoe tried to intervene from the side. He says he also joined
raising his hands to placate the accused who did not heed their
request to put the gun back to holster.
he saw when the accused push the deceased with his left hand and as
the deceased staggered trying to regain his balance, the accused
fired at him. He stated that the time the deceased had no firearm in
his hands. The deceased asked "why do you shoot me" to
which question the accused said "I told you I will even catch
you." The deceased then fell down. He says the accused then
jumped onto the stoep and shot at him and the bullet hit his left
thigh penetrating through to the right thigh. He says that at no time
did he see P.W.1 hit the accused at the back of the head with a fist.
He says people rushed to the scene and saw officer Ramatobo helping
the prostrate deceased.
hospital he saw that the deceased had a wound on the left arm and
left breast and was gasping for breath. He says he himself spent a
few days as an inpatient at the Mafeteng Hospital.
cross examined, P.W.2 insisted that when the accused pushed the
deceased, the latter was trying to pacify the accused and was not
holding any gun. He did not however hear the accused say "I am
ready" after cocking his gun.
Accused shot you because P.W.1 had cowered behind you?
No, Lebona (P. W. 1) was then about ten to twelve paces from me when
I was shot through the thighs. Accused shot me from a distance of
about six paces. He shot the deceased and then me.
called was Lekhotla Moshoeshoe P.W.3 who informed the court that in
August 1998 he was a prison officer at Mafeteng Prison and the
accused was his principal officer.
he also attended the farewell party on the 7th August 1998 and was in
the company of deceased and Shoaepane. At one stage, they went to
P.W.1 asking for more drink. When they got to P.W.1 he heard accused
say, "man, what are you saying about me?" and P.W.1 replied
"the way you mix your drinks results in you vomiting." The
accused then retreated and pulled out a gun from his waist, locked it
and said "I am ready" He says they then rushed in raising
up their hands pleading. "Sergeant Moorosi, how can people of
your rank do things like these "? The accused then pushed the
deceased away with his left hand while his right hand held the gun.
He then fired at the deceased who held nothing in his hands at the
time. The deceased asked "why do you shoot me" to which the
accused replied "I told you I will ultimately catch you";
he was then retreating and shooting into the air. He says he then
heard P.W.2 screaming for help; he says he did not see what had
cross-examination, the following questions were put to him.
Deceased was not searched at the hospital? Answer: It happened and
the gun was found at his waist
If it is true that deceased took out his gun at the prison compound
and flashed it, it would not be possible for the gun to be found at
his waist at the hospital?
was near him.... 1 could have seen him draw the gun.
that he was falsely implicating the accused and admitted that the
preparatory examination he did not mention that the accused said "I
told you 1 will eventually catch up with you"
Ntlalane Ramatobo was then called to give evidence. She told the
court that on the 7th August 1998 she attended a farewell party for
Mr Mokhethi who was retiring from the prison service.
time she was on her way to the toilet at about 7 pm. As the toilet
was then occupied she had tried to squat nearby to pass water. As she
was about to squat, she heard the sound of a gun being cocked; on
looking she saw that it was the accused doing the cocking of the gun
ten paces away. She says she shouted "Moorosi, what are you
doing?" and ran towards him but before she reached him she heard
a gun report and people scattered. She heard deceased ask "why
are you shooting us" and accused said "I told you I will
ultimately catch you" after which she heard another report. She
says she saw the deceased stagger and she caught hold of him.
Hlomohang Shoaepane was on
ground and was crying in pain. The deceased then said "Morena
Ramatobo, he has finished me" She encouraged him say "please
be brave like a man" She then noticed a hole in his lumber
jacket on the left arm. She says at the time he was shot, the
deceased had nothing in his hands.
cross-examination she says she heard the cocking of the firearm as
she was trying to squat to pass water but she admits that she had not
heard any altercation that preceded this; nor did she hear the
accused say "I am ready", she did not see any pushing. She
denied that she is falsely implicating the accused because the
accused had been annoyed by her failure to transmit his message his
of bereavement earlier that week.
then closed its case.
accused then gave evidence on oath. He informed the Court that in
August 1998 was a principal officer at the Mafeteng Prison; and that
on the 7th August 1998 there was a farewell party held to celebrate
the retirement of Mr Sechaba Mokhethi. Before the party was held,
there had been a meeting to discuss the party issues e.g.
contributions, and types of refreshments. Regarding the amount of
contribution to be made differing amounts had been suggested e.g.
M15, M25 and M30.00. The last sum carried the day to the acute
disappointment of P.W.1 who was then a senior principal officer, who
was out-voted. He was not happy at all, he says. He says that on the
7th August 1998 he had gone off duty at 2 pm and having changed into
private attire at his "open Camp" residence, he then walked
to the party with his private firearm on his person.
arrived at the party which he found already in process, he went to
P.W.1 to ask for a Hunters Gold. He says P.W.1 obliged having opened
the container. He says he sat down and drank and after some time he
then went to ask for another drink.
that at one stage, the lights in the storeroom where liquor was kept
went out and he asked P.W.1 to give him money in order to buy candles
at the cafe just outside the prison compound. He went and bought the
candles. Having lit the candle, he looked for his half-drunk can of
beer but could not find it. He therefore asked for some more drink
from P.W.1 who grudgingly gave him another. After some time, he went
for another Hansa can. He says that P.W.1 was now totally opposed to
serving him liquor as he requested. He says P.W.1 was scolding him
all the time but gave him a Hansa quart, which he again drank also
belching loudly. He then heard P.W.1 remark "nyoa mae enoa ...
ke ile ka hla ka u bona hore u tla qetella u entse tjena"
back from a rabbits den and asked P.W.1 why he insulted him for
belching. He says he had not vomited though he felt nauseous. P.W.1
ignored him and he asked him yet again. He says P. W. 1 then hit him
with a fist causing him to fall down and kicked him as he tried to
stand up. He says he jumped on to the stoep but fell down. He says he
saw P. W. 1 draw a gun which however slipped out of his hand and fell
to the ground. He says he drew his own gun and shot twice into the
air to scare P. W. 1. He says P. W. 1 fired back.
he heard someone say "He has shot me".
saw the deceased on his right with his gun cocked and heard another
sound of shooting from where P.W.1 had run to.
he then fired in the direction of P.W.1 and then heard the deceased
say "why do you shoot me now"
he again fired into the air with the "fourth bullet." He
says he again fired the fifth time and started to run away.
ever saying at the time that he said to deceased: "I told you
that one day I will catch you"', nor did he ever say "I am
ready," he further denies saying that P.W.1 was talking shit. He
says P.W.1 had been harbouring a grudge against him since P.W.1 had
been out-voted on the contribution issue. P.W.3 was falsely
implicating him he says because Moshoeshoe was once taken to task for
having used his firearm carelessly while drunk at the hotel. P.W.4
was implicating falsely him because he once reprimanded her for
suppressing messages of his bereavement. He says he at the time of
the shooting he was not drunk but shot in self defence.
cross- examination by Ms Dlangamandla he denied that he ever said
that the deceased and Shoaepane were shot accidentally or by mistake
though this could have been suggested by his counsel when
cross-examining the crown witnesses. He says when he shot in their
direction he shot in self defence.
case, the onus is as usual upon the Crown to prove its case on these
two counts beyond a reasonable doubt; no onus rests upon the accused
to establish his innocence and if the accused pleads self defence he
needs to show that the defence he raises is under the circumstances
reasonably possibly true. The raising of this defence by implication
means that the accused admits committing the act charged but did so
in self-defence mistake or accident do not feature. If this defence
successfully pleaded the accused is entitled to an acquittal because
the unlawfulness of his act is thereby vitiated.
case, it is common cause that a quarrel erupted between the accused
and P.W.1, the latter bemoaning the rate at which the accused was
gulping down beers at the farewell party. The evidence showed that at
one stage the accused belched loudly or sought to vomit nearby and
this prompted P.W.1 to remark that the gluttonous imbibing of the
accused caused him nausea or to vomit.
evidence of the crown witnesses sought to establish that the accused
shot the deceased as the latter and Moshoeshoe were attempting to
intervene between the accused and P.W.1. What remains to be decided
is whether the accused shot the deceased acting in self defence or in
a situation aberratio ictus.
concept of aberratio ictus is sometimes problematic in our law. Put
ideally, it occurs where X shoots at Z intending to kill him but the
bullet hits and kills Y whose presence was to X unknown; X in that
situation has no intention to kill Y and cannot be convicted of
murdering Y - See S. v.
1970 (3) SA 747 at 751-3 per Holmes J.A who, in stating that the
doctrine of versari in re illicita was outworn, stated that X would
however be guilty of culpable homicide where X foresaw the reasonable
possibility that Y would be shot yet persisted in his deed. He
further reasoned it would be murder if X subjectively foresaw the
possibility of resultant death of Y yet persisted recklessly in his
deed; in the latter scenario the type of intention is dolus
eventualis whereas in the former it is culpa (S.v. Sigwahla - 1967
(4) 566 A.D.) R. v. Kuzwayo - 1949 (3) SA 761; S.v. Nkombani 1963 (4)
SA 877. Where X shoots into a crowd or group of people there is dolus
indeterminatus and it may amount to murder - S.v. Mauhunger - 1981
(1) SA 56 at 67-8.
the particular circumstances of this case, it is important to note
that upon the admitted evidence of Trooper Jane, five 7.65 firearm
shells were found at the scene and the accused in giving evidence
states he shot five times and the ballistic report of Senior
Inspector Mothibeli states that a fired bullet and cartridge cases
had been fired in and from the pistol 7.65 serial no.D16191.1 do not
therefore believe as probable or possible the story of the accused
that P.W.1 or deceased fired at him; I also find no good reason to
believe that when he was shot the deceased had drawn his gun and was
pointing it at him. I believe as true that when shot the deceased
still had his gun on his waist.
of this case paint a picture of the accused being infuriated by P.W.1
who had rebuked him for gulping down many drinks and thereafter being
about to vomit. It is probable in the circumstances of this case that
the accused at the time of the shooting had taken much drink and in
state and was quick to draw his pistol at the slightest of
provocation. That he did not shoot Lebona that evening was rather
fortuitous than planned; I do not however believe that he
premeditated killing of the deceased but the accused ought to have
reasonably foreseen that his random shooting would have fatal
consequences. His utterances that he was ready and had told the
deceased that he would one day catch him are more consistent with his
dangerously drunken conduct than with any premeditation on his part.
On this point some crown witnesses say they did not hear words being
uttered by the accused. I therefore find that the crown has not
proven beyond reasonable doubt that the accused had the necessary
intention - directus or eventualis - intoxication and possible
provocation being taken into account when determining his mental
state when he shot wildly.
however find that when he shot the deceased the accused did not act
in self-defence. Upon his own admission when giving evidence, the
accused was not very intoxicated on the day in question; he had
however consumed liquor in a manner that rendered him nauseous. I
also find that his version of having acted in self-defence as
untenable and false. No one hit him with a fist at the back of the
head; no one pointed a gun at him on that day. In his wild and sudden
fury, he shot at random and ought to have foreseen that his shooting
could have the fatal results. Under our law, the dividing line
between dolus eventualis (legal intention) and culpa is rather a thin
one and much depends upon the particular circumstances of each case.
As van den Heever J.A. aptly said in Julius Pone vs D.P.P - 1999-2000
LLR 214 at 226-
"... If there is a reasonable doubt whether the version of the
accused may not be true, the crown has not discharged the onus
burdening it of proving all the elements of the offence charged, more
particularly the intention to kill. "
I do find
that culpa has been established beyond all doubt and I therefore find
the accused guilty of the crime of culpable homicide under count one.
count two the accused is charged with attempted murder. My views as
regards the intention to kill apply in same vein under this count.
Section 186 of the Criminal Procedure and Evidence Act (supra) reads:
"Any person charged with attempted murder or with assault with
intent to murder may be found guilty of an assault with intent to do
grievous bodily harm or of a common assault if such be the facts
188 (3) then reads:-
"(3) If at the trial of any person on a charge alleging that he
killed or attempted to kill or assaulted any other person, it has not
been proved that he committed the offence charged, but has been
proved that he pointed at the person against whom the offence is
alleged to have been committed, a firearm, airgum or air pistol, in
contravention of any law, the accused may be convicted of having
contravened that law."
26 of Internal Security (Arms and Ammunition) Act No. 17 of 1966
"26. If a person has in his possession a firearm or ammunition
with intent by means thereof unlawfully to endanger human life or
cause injury to any person or property, of to enable any other person
by means thereof unlawfully to endanger human life or cause injury to
any person or property, he shall, whether death or any injury to
person or property has been caused or not, be guilty of an offence
and liable on conviction to the penalty prescribed in section 43. "
I am of
the view that under the circumstances of this case, it is appropriate
to bring in a verdict under Section 26 of Act 17 of 1966 (supra). The
accused is found guilty of having contravened the said section.
to sentence, I think it is appropriate that this court should voice
its concern upon the prevalent and rampant use of firearms in our
Kingdom. Many a life has been lost- young and old, male and female -
at the barrel of a gun.
Lesotho to-day, the Court is acutely aware that a section of our
people have become "trigger happy cowboys" who wield and
use guns at the flimsiest of causes. To these individuals the
sanctity of human life counts but little. Our society deprecates such
undesirable elements who deserve robust punishment for their
accused in this case was a Senior Prison Officer from whom discipline
and orderliness were expected; but he acted like a "bull in a
china shop" he shot wildly at his own colleagues for a trivial
reason. A gun in the hand of a drunken man becomes a dangerously
lethal weapon. If he had left the gun
his home before going to the party he could perhaps not be before
this court. He has however deprived the Leokane family a son, a
husband and a father. In his drunken state he acted most brutishly
and with utter disregard to human life. That he is a first offender
and has had otherwise an unblemished record stand him in good stead;
but he must be punished. In Rex vs Julius Pone (supra) van den Heever
J.A. having reduced the conviction from murder to culpable homicide,
noted that in imposing a sufficiently suspended sentence, the
interests of society could be adequately catered for in causing the
accused person, in/so far as may be necessary, to be less impetuous
in his violent reactions than he was at the relevant episode.
considered all the circumstances of this case, the court imposes the
Count One: M10,000or 10 years imprisonment -one quarter of which is
suspended for three years on condition that the accused is not found
guilty during that period of suspension of an offence involving
injury to person for which he is sentenced to six months or more
without an option of a fine, or an offence under the Arms and
Count Two: Four hundred Maloti (M400.00) or one year imprisonment.
It is ordered that both sentences run concurrently.
pistol is declared forfeited to the State and it is ordered that the
accused should be banned forever from ever being licenced to possess
a firearm of any sort or calibre.
direct that the Registrar of this Court dispatch of this judgment to
the Commander of the Lesotho Defence Force, the Commissioner of the
Police Services, Director of Intelligence and Director of Prisons.
This should serve as a stern reminder that service or private
firearms should be handled and used with the fullest sense of
responsibility and duty by the officers under their command. In
future this court will not hesitate to impose the harshest or
ultimate of sentences upon any officer who uses a firearm
irresponsibly in circumstances where discipline and restraint ought
to have been exercised. Human life is always precious but of late it
is often violated for the most trivial of reasons and unlawful use of
guns occurs with monotonous frequency. This despicable type of
criminality must come to an immediate stoppage.
: Ms Dlangamandla
Accused: Mr Nteso
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