HIGH COURT OF LESOTHO
by the Honourable Mr Justice S.N. Peete on the 26th April. 2002.
accused- a father and son-are facing two counts of murder it being
alleged that on the 21st day of July 1986 and at or near Likalaneng
in the Maseru district the said accused did each or other or both of
them unlawfully and intentionally kill Nkhahle Lekhotla on one count
and Tseliso Lekhotla on another. The third count related to the
unlawful possession of a 7.65 pistol without a firearm certificate.
They pleaded not guilty to all these counts.
going into the case, it should be noted that it disconcerting to the
court to observe that prosecution of this matter has taken almost
sixteen years to actualize.
Manthatisi Lekhotla is the wife of Nkhahle Lekhotla - deceased in the
first count. She told the court that during the evening of the 21st
day of July 1986 she was in her house listening to a play being
broadcast on her radio while the her husband - the deceased - was
taking a bath in the same house. She then heard dogs barking outside
and her husband asked her to go out and see what was taking place.
When she opened her door she saw a group of people amongst whom she
recognized accused No.1, No.2, Rethabile, Toka, Phiri Motemekoane,
Teboho, Fusi, Makopi, Mahlafuna Adoro and others. She saw them
because it was a moonlit night and the Accused 1 who was wearing a
"moholu " blanket, then said "where is that one? "
and without waiting for a reply, then struck the witness with a stick
on the left side of the head. When she rushed into the house, she saw
her husband seated on a bag of grain facing away from the doorway
holding a child and she says he exhorted her to leave the door which
was being pelted with stones by the people standing outside. She says
she then saw a flame and heard a gun shot - "thuu ". She
heard the deceased utter a belching sound but was still grappling the
child. She then raised an alarm saying "oh, Sekhobe has killed
afterwards she says that Tseliso Lekhotla arrived at the scene asking
"what is happening- why are you crying" and she told him
that the accused no.1 had killed her husband. She then ran to
Letebele's house four hundred yards away. Whilst there she soon heard
Tseliso Lekhotla crying out "Jo oe, Lehana, Rethabile, please
forgive me why are you killing me. " She did not however see who
were assaulting Tseliso Lekhotla. She explained that the relations
between her husband and Accused no.1 were not at all cordial because
of the animals trespassing and damaging the crops.
cross examination it was put to P.W.1 that her husband Nkhahle had
attacked and injured one Tahlo who worked as a gardener for Accused
No.1 and that he had also made threats to kill Accused No.1 upon his
Accused no, 1 returned to his home in Likalaneng at dusk?
He attacked us at about 8 pm.
As he passed your forecourt you were then throwing away dirty water
and you said "That devil has arrived".
Your and your husband then set dogs upon him?
No. But I have 2 dogs.
As he came out the accused fired in self defence.
No. Deceased was in the house when shot.
Your husband was all the time sitting passively and looking the other
No husband could do that during the pelting barrage of Stones?
wondered why he did so. Question: That was odd?
It was odd.
The accused never attacked in a group?
They were about 10 in all.
You did not see any of accused assault Tseliso?
heard Tseliso calling out Lehana - the name of accused No. 2.I
however never saw them belabour him.
witness informed the court that even after the death of her husband,
accused no.1 continued to even to instigate her ultimate removal from
the village and that she later went to build her homestead at Ha
called was P.W.2 Ntebele Jeke who is the father of deceased Nkhahle
and Tseliso Lekhotla. He is also maternally related to Accused No.1
who is his cousin and to accused No.2.
informed the Court that on the evening of the 21st July 1986, and as
he was about to turn in, he heard gun shots and sounds of stones
being thrown at his doors and windows. When he peeped, he saw accused
no.1 holding a pistol and because there was moonlight, he also saw
Accused No.2, Phiri, Teboho, Mahlafuna, and others. He says that his
door was extensively damaged as a result. He goes on to say that
Tseliso Lekhotla arrived soonafter during the onslaught and that in
the dark he then heard Lekhotla cry out "Ntate Sekhobe, 'na le
ntsekisang - what have I done? "
chased him out of the village and into the darkness. He says he then
went to the house of Nkhahle where he found the door also broken and
found Nkhahle seated on a bag of mealies and looked dead. He looked
as if he had just been washing himself.
he later found Tseliso Lekhotla seriously injured on his face and was
enable to speak. He was later taken to Likalaneng Clinic.
Nkhahle's body was examined when the police arrived and he noticed a
bullet wound behind the shoulder blade and the exit wound below the
breast. The corpse was then transported to mortuary.
confirmed the story that after the burial of his sons the accused
no.1 instigated and demanded that Nkhahle's wife leave the village of
cross examination, he insisted that he could recognize who his
attackers were and in fact he found 3 spent shells on his forecourt
on the following morning.
then called P.W.3 'Mankhahle Jack who is the wife of P.W.2. She told
the court that as she was preparing to go to bed on that day she
heard a dog barking and as she was about to open the door she heard
three gun shots very nearby and a hail of stones landing upon the
door. On peeping out to look, she saw accused no.1, accused no.2 and
many other people like Toka, Fusi, Rethabile, Phumo, Mohlalefi Phiri.
There was moonlight. She says she asked "Sekhobe, why are you
killing us?' and when she managed to get out.she found them leaving
but now chasing
Lekhotla who was crying out "Ntate Sekhobe, u ntsekisang
she then went to the house of Nkhahle where she saw a splintered door
and when entering the house, she found Nkhahle dead but seated on a
bag of mealies. She went out and cried in bitter melancholy.
cross examination, she maintained that though frightened by the
shooting and barrage of stones, she could still recognize Accused
no.1 and no.2 and other people who were attacking them as she had
known these accused long long time. She was not falsely implicating
A1 and A2 never attacked your house?
They attacked us. They are just denying.
They had no cause to attack you?
That is why 1 was surprised.
Accused never chased Tseliso
They chased him.
Tseliso never mentioned Sekhobe as he ran away because Sekhobe was
He was there. He chased my boy for no good reason.
crown witness was P.W.4 Tsitso Motemekoane, the chief of Likalaneng.
He told the court that Accused no.1 is his uncle.
that on the day in question at about 8 pm he received an urgent
report by one Hopolang Kabi whereupon he hurried to Nkhahle's house
and found Nkhahle already dead and was wearing only trousers untied
and it appeared as if he had just had a bath. He noticed utensils
upside down and that the door was broken and splintered but was still
on his hinges.
immediately made a written report to the Marakabei Police who arrived
on the following day. He noticed a bullet hole on the shoulder blade
(scapula) - he did not observe any frontal injuries.
presence, Sergeant Sekantsi found two bullets - one spent the other
that on that day of the attack he also found Tseliso Lekhotla with
"his head crushed, eyes protruding out of their sockets. "
He lay injured at the home of Letebele Mopeli's home. He says Tseliso
was later transported to Queen II Hospital on the same night but
learned that he had died on the following day.
that he also went to the house of P.W.2 where he found windows and a
door also broken. There were many stones which seem to have been
hurled at the house.
explained that the accused no.1 and deceased Nkhahle used to quarrel
frequently over trespassing animals. They are also neighbours in the
village. He confirmed that after the burial and mourning of her
husband, the wife of Nkhahle left the village of Likalaneng and built
a new home at Ha Ntsi.
cross examination, he admitted that he had written the letter dated
30th June 1986 to his Senior Chief Molapo Motemekoane in which he was
reporting the conflict between the two men and that the deceased was
threatening to kill Sekhobe - he admitted though, he had not
confronted the two men.
Inspector Sekantsi No.2545 who told the court that on the 22nd July
1986 whilst he was on duty at Marakabei Police post a report about
the death of Nkhahle and his brother came. Upon arrival at the scene,
he found Nkhahle dead and completely undressed; he observed a pierced
hole below the right scapula and did not see any exit wound. He
notice that the doors of the house were smashed and many rocks were
lying nearby. He also found a 7.65 bullet shell. He was also led to
the house of Ndebele Jack's house where he found that the door was
also smashed. He was also led to where Tseliso Lekhotla lay injured.
was Sergeant Khanyapa no.4609 who told the court that in July 1986
she was stationed at Marakabei Police post. During his investigations
he met accused No.1 already in custody at Maseru CUD. He was also
given a hammer, a stone and a mohloare stick. He says that Accused
no.1 gave him a 7.65 gun which was said to be owned by one Sergeant
He says he formally gave accused no.1 and Accused no.2 charges of
then closed its case.
Nathane then called Accused no.1 to give evidence on oath. The
accused told the court that he resides at Likalaneng where he runs a
small cafe.business. He says he is also a traditional village
informed the court that the deceased Nkhahle Lekhotla was the son of
his niece and was his close neighbour in the village; Tseliso
Lekhotla was Nkhahle's younger brother and stayed at the house of his
father P.W.2 Ndebele Jack.
the court that for a longtime there had existed bad blood between
himself and Nkhahle due to fact that Nkhahle was a cattle thief and
because Nkhahle used to graze his cattle upon his lands. This
conflict had even been referred to senior chief in June 1986.
one day that he was given a report by one Paul Mabathoana when he
returned from his journey to Leribe. The report was to the effect
that the deceased was planning to attack him. He says he reported the
matter to the police who did not take any action.
that on the evening of the 21st July 1986 he arrived at Likalaneng
and called around his cafe business where he got another report that
one of his boys had been attacked and injured by Nkhahle. After his
him of safety, he proceeded to his home and as he passed Nkhahle's
kraal, the dogs barked. "I was alone" he says.
on to say that Nkhahle's wife came out throwing away water and said,
"that devil is already here" He says Nkhahle then came out
rushing towards him. It was then that he the accused, struck
Nkhahle's wife with a stick and "then fired a shot" towards
them. They both retreated into the house. "I shot in
self-defence" he says. "I feared him (deceased) because he
was a giant (sehanyata). " He says the deceased was carrying a
stick as he came out.
explained that the gun actually belonged to one Ramashamole, his
police friend, who had left the gun at the shop by mistake when his
vehicle had broken down.
that he came to the house of Nkhahle with a group of people who
pelted the house with stones. He says he saw a group of people near
Nkhahle's house and they started running away when he fired a shot -
and they disappeared from his view. He never followed them, nor did
he chase or assault Tseliso Lekhotla.
he never saw Accused no.2 his son that evening.
firing into the house of P.W.2 nor breaking his doors with stones.
cross examination, he says he took the gun from the cafe after he had
received a report that his gardener Tahle Mohajane had been attacked
by Nkhahle "I took the gun to protect my children. "
he shot when he saw Nkhahle come out as if to attack him with a stick
and he says Nkhahle was still dressed as he approached. He denies
ever throwing stones at the door of Nkhahle's house or of Ndebele's.
He denies ever-pursuing Tseliso Lekhotla that night and inflicting
injuries that caused his death.
he shot at the deceased Nkhahle in self-defence.
no.2 then gave evidence on oath and informed the court that the
relations between his father Accused no.1 and deceased Nkhahle were
not cordial because the latter was a notorious cattle thief. On the
day in question he says he heard dogs barking near their kraal and
upon getting out he saw a group of people walking past. He then heard
a loud sound coming from the direction of Nkhahle' s house. He then
ran back home and did not come out till morning - he did not receive
any report from his father accused no.1.
on to say that on the following day he saw many people and police at
Nkhahle's house. When he arrived at the scene the police asked him to
explain his whereabouts on the previous night; they also asked him to
bring along his "lebetlela " stick and he was taken to
Marakabei police post where he spent two days in police custody.
ever being part of a group of people who attacked Nkhahle's and
Ndebele's houses; he never chased Tseliso Lekhotla that night nor was
he ever present at the house of Nkhahle when he was shot.
P. W. 1 says she identified A1 and yourself in the group of attackers
who also were throwing stones.
deny. I also deny what P. W.2 and P. W.3 say about me. It is not true
I assaulted Tseliso.
Why lie about you?
P.W.1, P.W.2 and P.W.3 lied about me because they hate us as a
defence then closed its case.
then called as a court witness Tahlo Mohajane in terms of the
provisions of section 202 of Criminal Procedure and Evidence Act. It
"202. (1) The court may at any stage of the criminal trial
subpoena or cause to be subpoenaed any person as a witness or examine
any person in attendance though not subpoenaed as witness, or recall
and re-examine any person already examined.
(2) The court shall subpoena and examine or recall and re-examine any
person if his evidence appears to it essential to the just decision
of the case."
witness informed the court he was employed as a garden boy by accused
no.1 and that one day the deceased Nkhahle had assaulted him saying
he was concealing the whereabouts of Accused No.1. He was
hospitalized as a result of this assault.
witness called was Tsoeu Jack who also confirmed that deceased
Nkhahle had assaulted Tahlo; he went on to say that on the day in
question he had heard doors being smashed with stones and upon
arrival he had found about seven people - Toka, Rethabile, Tsepo,
Fusi and Accused no.2 and Phiri. After they had left, he went in only
to find Nkhahle dead; it was as if he had been washing.
the same group of people chased Tseliso Lekhotla until they
disappeared from view. He says he later found Tseliso seriously
injured on the head and the brain matter was visible.
examined, this witness maintained that Accused no.1 and no.2 were at
addressing the court Ms Mofilikoane, for the crown, submitted that
the crown had proved its case beyond reasonable doubt by showing that
both accused along with a group of other persons had acted in concert
in attacking the house of Nkhahle on the night in question and that
the accused no.1 had admitted shooting. She submitted that under the
doctrine of common purpose the "act of one becomes the act of
all" because they foresaw the reasonable possibility that the
dangerous weapons would be used. He cited in support thereof the
South African cases of Rex vs Nsele - 1955 (2) SA
vs Ndlangisa 1946 A.D. 1101. She submitted that Accused no.2 is
liable for what was done by Accused no. 1 and Accused no.2 is liable
for acts committed by accused no.1 and other socii crimini. She
submits that the version of the accused no.1 that he fired at the
deceased in self-defence should be rejected as false because when
shot the deceased was half-dressed and had not attacked the accused
as alleged by the latter. If anything, the accused and his mob had
pre-empted everything and intended to lynch the deceased and his
family. She submitted that her witnesses had given their evidence
honestly and had been corroborated by objective facts.
Nathane, for the two accused argued that the attack upon the deceased
was not entirely unprovoked. Prior to this incident bad blood had
existed between Nkhahle and the accused and this indeed had prompted
chief Tsitso Motemekoane to write to the senior chief to report about
the situation. It had furthermore been established that Tahlo had
recently been attacked by the deceased Nkhahle who was "baying
for the blood'' of the accused no.1.
submitted that the accused no.1 should be believed when he stated
that the deceased Nkhahle had attacked him and had not, as alleged by
his wife, sat passively on a grain bag and was .cuddling a baby.
Nathane then described his case as one of "preemptive
there had been bad blood between the accused no.1 and the deceased is
not in dispute. What is dispute is whether in shooting the deceased,
the accused no.1 acted in self-defence or whether there was no such
attack at all by Nkhahle thus rendering his conduct unlawful. In
deciding this the court
have regard to the crown evidence in determining what a proper
finding should be in the circumstances of the case.
evidence under count one is mainly to the effect that when he was
shot the deceased was still in the house and had just finished
washing himself. This is confirmed by the evidence from other
witnesses that when they arrived at the scene that night they found
the deceased Nkhahle seated on a grain bag, half-dressed with no
shirt but only his trousers; they also observed that the bullet had
entered from the back and the exit wound was probably in front. There
was also clear evidence that there were many stones lying about and
the door of Nkhahle's house was damaged; these facts falsify the
version of the accused no.1 that no stones were thrown at the door of
Nkhahle. Even his own brother Tsitso also confirmed that the deceased
was found dead but seated on a grain bag and that the door of his
house was damaged, apparently, with the many stones lying about in
the forecourt. It leads to an irresistible conclusion that the
accused launched his attack preemptively. It could be true that the
deceased had injured Tahlo and that he had threatened to attack
accused no.1, but this court finds that the description given by the
accused no.1 of what happened at the house of Nkhahle is not only
improbable but false beyond all doubt. Why were stones found
scattered all over the scene? Why was the deceased found dead seated
on a grain bag in his house? Accused no.1 was identified by P.W.1 as
being amongst the men who attacked the deceased's house with stones
on that night.
own admission, the accused no. 1 took the gun from the cafe and
proceeded to the house of Nkhahle "to protect his children"-
in the company of many persons who were throwing stones and were
armed. He shot into the house of Nkhahle when his own life was not in
danger; as it was dark it is probable that he did not in fact see and
aim at Nkhahle; but in my view his conduct is rendered unlawful by
the fact that he should have subjectively foreseen that in shooting
into the house, as he did, fatal or serious injury might occur yet
persisted in his act.
of shooting was not done in self-defence but was intended to have
fatal consequences. In my view Accused no.1 had the necessary legal
intention (dolus eventualis) when he thus shot. The bullet entered
the left scapula (shoulder blade) of the deceased which means that
the bullet came from behind; a frontal entry of the bullet would, on
the other hand, have meant that the deceased was shot facing the
accused at the material time. The accused in shooting as he did into
the house subjectively foresaw that fatal results would occur. I find
him guilty of murder under count one.
regards accused no.2 on this count, the crown evidence shows that he
and his father accused no.1 were acting in concert along with other
persons that night in attacking the houses of Nkhahle and Ndebele
Jack. I have rejected as false beyond doubt the story of accused no.2
that he was not present when these incidents occurred. He says he was
asleep that night; but he was seen .....occurred. He was seen by more
than two witnesses as being amongst the attacking group. The act of
his father is act - he should have known that his father had a gun
and foresaw that it was likely to be used with fatal consequences.
Where two or more people actively associate themselves with
commission of joint unlawful interprise, their liability arises from
their "common purpose" and the act of one becomes the act
of all and it is not necessary to establish precisely which one of
the group committed the unlawful act [Burchell - South African
Criminal Law and Procedure -Vol.1 p.308] Dolus eventualis often
constitutes the mens rea where there is foresight of the possibility
of death occurring (S. v. Khumalo - 199 (4) SA 310 where a crowd
attacked the house of a municipal policeman broke windows it was held
that mens rea of a socius criminis depends on whether he foresaw that
death was a possibility). It is possible that a participant in a
common purpose to be found guilty of culpable homicide if he did not
foresee the principal offender's killing as a possibility but because
a reasonable person should have foreseen it (Burchell (supra)
p.315-6) I comes to the finding that Accused no.2 is guilty of
culpable homicide under count one.
concerned, I find that the crown evidence reliably shows that he was
present amongst the group that attacked the house of Nkhahle en that
night. His is a bare denial that he was never at the scene. Several
witnesses state that they saw him in the group. I reject as false his
denial and accept as true that he was part of the group that attacked
Nkhahle's house that night. Under the doctrine of common purpose, he
attacked Nkhahle's house and made common purpose with his father. He
also realized that his father would use the gun he was carrying with
fatal results. I find him guilty of culpable homicide.
accused no.1 and no.2 assisted by their companions acted
preemptively, but their conduct was completely unlawful and
unjustified even if the deceased had in fact threatened to attack
accused no.1; the accused took the law into their own hands and meted
out their own justice.
regards count two, there is no direct evidence implicating both
accused with the killing of Tseliso Lekhotla; I am of the view that
the fatal injuries sustained by the deceased Tseliso Lekhotla were
probably inflicted by one or some of the people in the mob that
pursued Tseliso Lekhotla into the night. The pursuers had stones and
sticks and the two accused - assuming in their favour that they did
not commit the actual assault - should have foreseen that fatal
results could occur. I find them both guilty of culpable homicide
under count two.
found that having seen and heard the crown witnesses, the crown
evidence was overwhelming that the accused attacked the houses of
Nkhahle and Ndebele Jack. The witness were truthful, frank and
credible and on the other hand the versions of both accused were not
only improbable but beyond any reasonable doubt false. (Tsotang Pelea
vs Rex-C. of A. (Cri) No.2 of 2000 per Ramodibedi J.A.; Letlaka vs
Rex - C of A (cri) No.3 of 2000 per Steyn P.; Julius Pone vs D.P.P. -
1999-2000 LLR (LB) 214)
I do not
agree that pre-emptive self-defence is lawful - "ho e lata
letailane "-To do so would render lawful what in reality and law
amounts to self help or taking law into one's hands. If such were
allowed, people would kill each other upon mere threat real or
exists extenuating circumstances in this case. The finding that dolus
eventualis is a factor that is usually taken as an extenuating
circumstance. The long standing bad blood between the deceased and
accused no. 1 and the threats allegedly made by the deceased all
reduce the accused's moral blameworthiness - Tahleho Letuka v Rex -
1997 -98 LLR 346; Mohlaisi v Rex 1980-84 LAC 110; Serine v Rex -
1991-92 LLR 42. Khanyapa v Rex 1997-98 LLR 8.
Sentence: Having regard to the personal circumstances of the accused
and the fact that they are first offenders, the court is of the view
that the accused acted in a most high handed fashion in meting out
their own justice on that night. They deserve to be punished.
1- Count 1 - Six (6) years
Count 2 -
Three (3) years
Count 3 -
M100.00 or one (1) year suspended for three years.
- Count 1 - Three (3) years
Count 3 -
Not guilty Sentences in count 1 and 2 to run concurrently s.n.peete-
: Ms Mofilikoane
Accuseds: Mr Nathane
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