HIGH COURT OF LESOTHO
MALUNGA MATEE SEFAFE RAMOSENA
Crown : Mr. L. Moqhali
Accused : Mr. L. Molefi
ASSESSORS: Messrs Matete and Loko
by the Honourable Mr. Justice T. Monapathi on the 19th day of June
Akhente (Deceased) of Lesotho Mounted Police died at Peka on the 19th
June 1999. He was allegedly shot in a tavern owned by one Mpasa. He
suffered a gun shot wound. It was in the morning of that day around
the hours of 10.00-11.00. There had been beer drinking at the tavern
since the hours of about 7.00 am if not before. There had also been a
lot of noise from carousing
and the sound of music from a hi-fi set which was said to have been
out of the above circumstances were four charges (separately) against
Accused One (A1) Chechile Malunga Matee a male adult Mosotho aged
about 46 and Accused Two (A2) Sefare Ramosena, a male adult Mosotho
aged about 32 both of Headman Thobela Mathealira under Chief Lechesa
Mathealira at Peka in the district of Leribe.
charges were as follows:
"Chechile Malunga Matee (hereinafter called the Accused) is
guilty of the crime of murder. In that upon or about the 19th day of
June 1999 and at or near Peka, in the Leribe district the said
accused did unlawfully and intentionally kill Lebohang Akhente".
"That Chechile Malunga Matee (hereinafter called the Accused) is
guilty of the crime of contravening section 3(2) A of Act No.17 of
1966. In that upon or about the 19th day of June 1999 and at or near
Peka in the Leribe district, the said accused did unlawfully and
intentionally have in his possession a 7.65mm S/N 04937 and six
ammunition without holding a firearm certificate as required under
"That Chechile Malunga Matee (hereinafter called the Accused) is
guilty of the crime of contravening section 3(2) of Act No.17 of
1966. In that upon or about the 19th day of June 1999 and at or near
Peka, in the district of Leribe, the said accused did unlawfully and
intentionally have in his possession a .38 S/N W 264674 and one round
of ammunition without holding a firearm certificate as required under
"That Sefafe Ramosena (hereinafter called the Accused) is guilty
of the crim of attempted murder. In that upon or about the 19th day
of June 1999 and at or near Peka, in the Leribe district the said
accused did unlawfully and with intent to kill point a firearm at
Trooper Mahase .
charges the two Accused pleaded not guilty.
evidence of the following witnesses at the Preparatory Examination
(PE) was admitted at the trial and the depositions were read into the
machine to form part of the record. Their names are preceded by the
numbers at the PE.
PW 1 (No.
7851 Det. Trooper Komanyane) PW 3 (Khotso Mathanyane) PW 5 (Lebohang
Koto) PW 6 (Khotso Moremoholo), PW 12 (Sgt Makoae) PW 14 (No.9346
Trooper Letuka). PW 16 (No.5 631 D/L Sgt Mopeli) PW 11 (No, 9284
Trooper Makoetlane) PW 15 (No.3185 Inspector Matala) PW 10
(Policeman/ Senior Inspector Mothibeli).
following witnesses testified and were sworn in support of the Crown
case. PW 1 No. 4981 Trooper Mahase (who was PW 9 at the PE); PW 2,
Trooper Mahloko (who was PW 3 at the PE); PW 3 Mokoatle Mahase (who
was PW 2 at the PE); PW 4 Ntabejane Ntabejane (who was PW 4 at the
PE); PW 5 Separola Letsipa (who was PW 7 at the PE); PW 6 No. 9010
Det. Trooper Mahloko (who was PW 13 at the PE). After that, then, was
close of the Crown case.
followed an application for discharge relating to certain counts in
the indictment which I briefly dealt with as follows:That only in
Court II did I find that there would be no case to answer. In others
there were prima facie cases. It had been only with respect to Count
I (murder) that there had been no challenge. See my ruling of the
20th March 2002 - "Appendix I".
postmortem Examination Report that was also exhibited and whose
was read into the recording machine revealed that death was due to
".......shock and excessive internal haemorrhage" due to
gunshot. The external appearance showed an entry wound at the area of
the 5th intercostal space" and an existing wound at the "mid
auxiliary right flank;" And " the heart had been perforated
with haemocardium. It clearly meant that a single wound had injured
the heart and resulted in loss of blood. It became clear therefore
that what remained for this Court was to decide, the Accused having
admitted the fatal assault, whether he had the requisite mens rea
(intention) to kill the Deceased.
Komanyane who was stationed at Hlotse was given three guns and
ammunition for ballistic tests in Maseru. It was a 7.65 pistol serial
number 046937, a .38 firearm serial number W 26474 and a 9mm pistol
serial number 101116. There was also a spent bullet of a .38 calibre.
He could not remember how many bullets of that calibre were there in
took the firearm to Maseru for ballistic tests. After that all the
firearms and rounds of ammunition were returned to the police
officer. They were exhibited in this Court as exhibits except the
7.65mm which was handed over to some alleged owner before
commencement of this proceedings.
statement of Senior Inspector Mothibeli who is attached to the
Ballistic Tests Unit confirmed receipt and examination of the
firearms and ammunition (7. ) as stated by Trooper Komanyane. These
included three .38 special fired cartridge cases, one .38 special
fired jacket and one .38 special fired bullet jacket. His report was
exhibit "A" which also stated that a ballastic examination
of the said items was done. He explained the attributes of the .38
Special Rossa (SR) revolver serial no. W 26474 and associated himself
with the report. The result was that he was able to determine that
the .38 revolver had been previously fired. The two other firearms
were however still in good working condition. He tested them but he
was not able to determine whether they had previously been fired or
Manthanyane (Khotso) worked in the tavern as a waiter and he knew
both Accused before Court. On the 19th June 1999 he had been on duty
and there were already customers present since the hour of 7.00 am
when he opened. Khotso said he had seen the two Accused at the tavern
drinking some" beer. They had sat at different tables. Accused
had however testified that they had come at different times
especially that at the time of the fight A1 was present when A2
arrived. The Deceased had also been present. He was also drinking
said A1 had come to the counter with a M20.00 note in order to pay
for the beer he had bought. He said he went to get change for the
cash paid from a cash register. The witness did not speak of his
having seen Deceased approach or facing A1 with a gun held. It was
then that he heard a sound of a broken glass. To this he did not pay
attention. When he returned to A1 he saw the Deceased and A1
wrestling. The Deceased was holding a pistol. Khotso did not say
whether at that stage he saw PW1 around or was the two wrestling men.
A1 was not holding anything. Khotso then ran out of the tavern.
Before he had ran out of the tavern he heard one gun report.
went to the owner of the business to give him a report of the events
that had just occurred. He did not find the owner. He came back to
the tavern. He then saw a white van and asked the owner to call the
police. He went to the police who responded later and attended at the
consequently arrested while still in the tavern. Deceased's body lied
at the floor. It was not at the spot at which Deceased and A1
wrestled. When Khotso was about to give a report to the tavern owner
he saw A2 getting back into the tavern. Khotso did not see what he
was holding. The impression borne by this testimony was that A2 was
seen quite before the fight and later after A1 was arrested.
observed that when A1 paid for the beer he was not drunk. This
corroborates A1's statement that although he started early to drink
he had gone to his home and had breakfast and in no way was he
inebriated. Khotso said A2 was drunk. This was confirmed by Lebohang
Koto. He "looked moderately drunk." This was much against
what A2 said that he was not at all drunk although he had visited
another drinking place called Mashaphe's. One wondered why Khotso
would suggest that A2 was drunk. It appeared that he was not the only
witness who spoke of A2 having been drunk. Khotso had not heard any
argument from any of his customers prior to this incident.
Koto (PW 5) who knew both Accused had also been at the tavern on the
fateful day. He had accompanied A2 to the bus stop with whom they
were to proceeded to Kolonyama. They decided to go into the tavern.
A2 was already under influence of liquor as the witness testified. In
this respect the evidence of Khotso is confirmed.
they were on the way they heard a gun report emanating from inside
the tavern. They proceeded on. At the main door Lebohang heard
another gun report. It must have been a second gun report according
to this witness. The witness however said he heard two gun reports
only. The important thing would be his corroborating that except A2's
shot there had been
gun report before. A2 got into the tavern "despite the commotion
that was taking place." Lebohang also entered. He disconnected
wires from hi-fi set which was turned off. He heard another gun
report. He saw A2 holding the firearm in his hands.
witness saw A2 holding a gun in his hands he had just turned his back
away from the Deceased who was below the counter with PW.1. As I
immediately observed this was not quite in conflict with A1 and A2
and PW1's statements which suggested that when A2 got possession of a
gun he had just removed from the vicinity of A1 and PW1 who had been
engaged in a struggle for the possession of this gun which presumably
was the one referred to by Lebohang. Indeed A1 and PW 1 confirmed
that A2 discharged a bullet from this gun. This was explained later
by A2 in his testimony.
went on to say he turned his back away from the Deceased who was
below the counter with trooper Mahase. The latter was on top of A1
and left them still wrestling. Lebohang must have been positioned in
such a way that he was able to see A1, PW 1 and Deceased at the same
time. That is why he had the impression that A2 had moved away from
the Deceased. A2 in his testimony did not however suggest that he had
ever approached the Deceased.
further saw A2 when he was already out of the tavern with "his
firearm". He was trying to stop vehicles which were heading in
the direction of the police station. He succeeded to stop and board
one vehicle which later came back with him and some police officers.
had said he had, himself, not got into the tavern. When A2 came back
with the police he still retained possession of the firearm which he
gave to Lebohang. Lebohang handed over the gun to his brother Hape.
It was the revolver that was exhibited before Court. Lebohang had
been with A1 on that day but had not realized whether he had been
drunk or not. A1 was later arrested by police.
Moremoholo (Patso) was with A1 in the tavern. A1 came back later and
gave the waiter some money. When he turned back he saw Deceased with
a gun in his hand. He had been four paces away from A1. They had
never spoken to each other before. A1 had approached the Deceased and
they fought for the possession of the firearm. The witness had not
seen A1 holding a gun. , He was not aware if he had been drunk or
not. During that struggle the witness had heard a gun report. He then
went out of the tavern and peeped through the window. He saw Deceased
on the floor. He saw PW 1 on top of A1. A2 was next to them holding a
firearm. He ultimately got out of the tavern. Patso was
to give a report to policeman Makoetlane who arrived later.
Mafereka (Mafereka) was also in the tavern on the day of the
shooting. As he testified it was between 11.00 and 12.00 noon. His
account of the event was a little different from the others already
discussed. It revealed that it was the Deceased who stood up and
approached A1. The witness said before then there had not been any
discussion when then the Deceased then said "Stand still do not
move." It is perhaps more enlightening to quote from the
witness' deposition as to what then later happened. It was that:
"The deceased then wrestled accused first and then latter fought
back. The deceased's firearm dropped on to the floor during the
ensuing fight. I then saw accused 1 holding a firearm and then shot
the deceased with it.. They were both on their feet when accused 1
shot the deceased."
from this account that it was not as if both men approached each
other at the same time. Secondly, when the Accused shot the deceased
it cannot have been with Deceased's firearm which had dropped to the
floor. In the situation as described no other people as yet, besides
the Accused and Deceased were involved.
witness continued to say that when the Deceased dropped to the
was only then that one police officer wrestled with and overpowered
report of a gun was heard by the witness after he ran out of the
tavern. He said it was "in fact three gun shots." A2 was
seen by the witness enter the tavern and come out after a shot with a
small firearm. He came out with a surprised look A1 was later seen by
the witness "hand cuffed with ropes." The witness was not
in a position to say whether A1 or Deceased were drunk.
Makoetlane was ordered by PW1 to take out the firearm that had been
"located at the chest of A1" inside his shirt. It is the
firearm that was exhibited at the PE but released before commencement
of the trial when the witness surprisingly described as a .38. He
assisted to tie A1 with wires from Hi-fi musical equipment.
Makoetlane had later seen A2 in possession of a firearm which he was
using to stop vehicle to take A2 to Peka Police Post.
Makoae was one of the officers who ultimately attended at the tavern
following from A2's report at the charge office. Information from A2
led to discovery of a .38 silver revolver. He found Trooper
Makoetlane already in
tavern attending to the arrest of A1. He also hand cuffed A1 and
charged him with murder of deceased whose dead body was laying in the
tavern. It had two gun-shot wounds. I believed that it could only
have been that one wound was an entry wound and the other one an exit
one. The body was later taken to the mortuary and sustained no
admission of the evidence of the said depositions then followed the
oral evidence of the following witnesses: PW 1, Detective Trooper
Mahase, PW 2, Detective Trooper Mahloko, PW 3 Mokhethi Mahase, PW 4.
Ntabejane Ntabejane and PW 5, Separola Letsipa.
testified that on the 19th June 1999 during the morning he went to
Maphasa's tavern at Peka where he found Deceased Lebohang Akhente who
was a fellow police officer. There were other people present who were
drinking beer. The witness testified that Deceased and the witness
had been sent out to effect an arrest on A1 for some alleged
offences. Deceased was said to have been the officer in charge of the
operation. A1 entered the tavern after the witness and the Deceased.
A1 was seen by this witness approaching the counter. Deceased
followed immediately thereafter. I thought it must have been after A1
had made an order and offered the cash payment. The witness went on
to say that Deceased approached towards A1 holding an ID card in his
left hand and
service pistol in his right hand. PW 1 said he was three paces from
the Deceased and A1 and he heard everything that transpired. As I
concluded there was no reference to the ID by any witness except PW
1. I noted that PW 1 was not able to recite any words that came out
between A1 and Deceased. I noted furthermore that one witness was
able to say that he heard Deceased say "stand where you are."
further stated that after the Deceased had identified himself A1
withdrew a .38 revolver and the Deceased held A1's had holding the
revolver. PW 1 then joined the Deceased in order to overpower A1. He
said when he had joined in the struggle A1 who was the tallest of the
threesome pulled a trigger and Deceased fell down immediately. PW 1
explained that due to the fact that A1 was taller the witness could
not reach the gun except the wrist or end of A1's arm and that left
free movement from A1's hand. The struggle for the gun continued even
after the gun report and the fall of the Deceased. A1 did not deny
that it was during the straggle that the gun went off." The two
wrestled for the gun until PW 1 managed to overpower A1 still
clutching with PW 1 on top. A1 had then pleaded with the witness to
release him and let him go. He refused.
further testified that after a considerable length of time and during
the struggle A2 who was well known to PW 1 appeared having just
tavern approaching PW 1 and A1 where they were struggling on the
ordered A2 to take away the gun from the witness. A2 complied and
wrested off the gun from A1. The two remained holding on the floor.
PW 1 went
on to state that A2 tried to pull him away from A1 but failed. A.1
then ordered A2 to shoot the witness but did not comply even though
he looked furious. Instead A2 took two steps backward and pointed PW
1 with the .38 pistol while ordering him to release A1 or else he
would shoot him. PW 1 did not oblige despite the threat.
PW 1 went
further to testify that after refusing to the release A, A2 came back
to him and started hitting with the firearm on the cheek. Still A1
did not budge despite being hit. PW 1 said at this juncture he felt
that another firearm was located in the inner pocket of A1's shirt.
He said A2 went some steps backwards, shot in the air. He then came
back to point the gun at the witness ordering the witness to release
A1. PW 1 still refused to let go. This movement of the gun and the
pointing made towards PW 1 was corroborated by PW 3. A2 was otherwise
seen leaning or stooping towards the two contestants while on the
floor. It was acknowledged by witnesses that all moved out of the
tavern when the fracas started. It must have resulted in a confusion
such that people and some who were peeping into the tavern through
the window could not have
clearly what was happening inside. I believed that A2 who developed
interest in the matter obviously on the side of A1 could have been
seen stooping bending down as aforesaid but shot of having pointed
the gun at PW 1 and hitting him with the gun with the obvious
intention of forcing PW 1 to let go of A1. This could be positively
deduced from the order given by A1 that A2 must extricate the witness
witness continued and said that A2 then ran out of the tavern leaving
the witness still on top of A1. It was moments that Trooper
Makoetlane arrived and was ordered by PW 1 to take away the firearm
from A1's attire. He said it was a 7.65 pistol. He said Trooper
Makoetlane helped the witness to tie A1 with a rope. It was after the
two contestants had both started let go of each other.
PW 1 went
on to conclude his evidence-in-chief by saying that he saw Deceased
lying dead on the floor and his service pistol being next to him and
that pistol was a 9mm. He said the Deceased was lying face down
bleeding from the mouth and nose.
next called Detective Trooper Mahloko who became PW 2. He said he was
a member of Lesotho Mounted Police and was stationed at Hlotse. On
the 19th day of June 1999 he had been at the village at Peka. It was
of 10.00 and 12.00 midday when he met a vehicle driven by Sergeant
Makoae when the vehicle stopped next to Him he was asked by one of
the people on board to join them into the vehicle. He did. It was
explained that the vehicle was on its way to the bus stop where
Trooper Akhente (Deceased) had been killed. They drove towards the
they got to the bus stop the vehicle was stopped. The witness,
together with other officers who were in the vehicle entered one of
the shops (tavern) and found Deceased's corpse. The witness found
officers Mahase and Makoetlane who were in the process of tying A1
with some plastic roping. Handcuffs were provided and as a result A1
witness testified that he had been made aware of the body of Deceased
which was lying face down in the tavern. The witness said he examined
the corpse. It was bleeding from the nose and there was a pool of
blood nearby. The corpse was turned and then the witness found that
the Deceased had already died. The witness removed the Deceased's
jacket and discovered what seemed to be a gun entry on the left side
of the chest. The exit wound was on the right side below the ribs.
Some three(3) paces away from the Deceased there was a 9mm pistol.
The witness further stated that the pistol was loaded with 10 bullets
and the chamber was empty. The serial number of the pistol was
it to be one of the guns which had been exhibited in Court. He seized
the gun for purpose of it being exhibited before Court. The witness
also took Deceased's skipper which had a "burn mark" which
corresponded with the entry wound on the body.
PW 2 went
further to say that they took the corpse to the mortuary and while on
the way, the corpse did not sustain any further injuries. The witness
said that while they were at the scene, he took Deceased's gun
(Exh.1) and found that it was not corked. Thereafter Trooper Letuka
handed over to him a .38 mm revolver (Exh.3). The witness opened the
revolver and found that it had three (3) shells. He kept the firearm
with the intention of exhibiting it in Court. At a later stage the
guns were taken to Maseru where they underwent ballistic tests.
witness said he met A2 and identified himself. He asked A2 to give
him an explanation. The explanation given did not satisfy him. He
cautioned him and gave him a charge of attempted murder and unlawful
possession of a firearm having asked him to furnish him with a
certificate for possession of the gun which A2 failed to produce. The
witness then said he was not able to ask for any explanation from A1
as he was no longer at Hlotse when he went to seek for an
explanation. PW 2 handed in .38 revolver (Exhibit 3), 9 mm pistol
(Exhibit 1) as well as Deceased's skipper (Exhibit 2) as exhibits. A
spent bullet had also
discovered in the shop which was handed in as "Exhibit 4"
before this Court. An explanation was given by the witness that the
7.65 pistol found on the body of A1 was handed over to someone to
whom it was said to have belonged.
testified that on the day of Deceased's death he had paid his brother
PW1, a visit at Peka Police Post during the morning hours. He had
decided to go back home at Tšifalimali. When PW 1 was taking
him half way they decided to go via Mphasa's tavern. On their arrival
they found people, including the Deceased already present. They also
joined and partook of beer. They also shared a table with the
Deceased who was facing the main door. The witness and PW 2 were
facing in the direction of the counter.
still drinking and after a short while, the witness saw Deceased
standing up and going to the counter. As the witness testified, after
the Deceased had gone to the counter he heard gun a report. People
who were inside the tavern ran out of the tavern. He did the same.
While outside he saw people peeping through the windows and he also
peeped in. He saw the Deceased lying prostrate on the ground. He
looked closely. He realized that he was bleeding from the nose.
outside the witness said he saw PW 1 wrestling with and was on
top of a
man he did not know. He decided to go in after a short while but
someone he did not know stopped him from doing so. He went back to
the window and continued to look inside.
witness then saw a person entering into the tavern. That person then
pointed a gun at PW1. He identified the gun to be Exhibit "3".
He identified the person who was pointing the gun at PW 1 as A2. He
was also able to identify the person who was wrestling with PW as A1.
A2 went outside after a moment.
had gone out a man was heard calling out or shouting that a police
officer had already died (fallen down). This was directed at a person
the witness did not know. Eventually someone who turned out to be a
policeman came into the tavern. He handcuffed A1. Afterwards a police
vehicle came. A1 was taken off apparently to the police Charge
Ntabejane Ntabejane testified that at about 10.30 am on the fateful
day he went to Mphasa's tavern for a beer drink. He found a number of
people already present and drinking beer. They included PW 5. A1 and
Deceased were not there then. He went on to say that Deceased arrived
a few minutes later. He alone. PW 1 later arrived and joined him. He
further stated that after sometime A1 arrived in the room and
proceeded to the counter. Deceased immediately
where A1 had positioned himself at the counter.
stated further that when Deceased approached A1 the former was
holding a firearm in his hand. He did not hear what was said but
realized that A1 and Deceased were fighting over Deceased's gun. He
confirmed that A1 and Deceased had been involved in some conversation
although he did not hear what was being said. They then approached
each other in a forceful and violent motion. During this struggle he
heard a gun report. And he saw PW 1 joining the two (A1 and Deceased)
trying "to separate" the two. He continued to say that he
saw A1 turning back holding his own firearm which was a silver
firearm. The Deceased's firearm was on the floor. A1 was still
holding his firearm. A1l people then ran out of the tavern except A1
and PW 1. The witness suggested that before PW 1 joined in there had
already been the first gun report. He was not aware where it came
from. The witness then said he heard a second gun report. This time
he was aware that it came from where PW 1 and A1 were.
then seen entering the tavern. It was at the time when PW 6 had
joined people who were outside peeping into the tavern through
windows. He was able to see the Deceased who was lying on the floor.
A1 and PW 1 continued wrestling on the floor with PW 1 on top of A1.
He was able to see A2 when he had approached and closed in where PW 1
and A1 were. The witness
a few paces from where he was when he saw A2 emerge from the tavern
holding the silver gun. The witness must have gone away from the area
because he said when he returned to the tavern he found police
officers already present. A1 had been tied up with roping. A2 was no
longer at the scene.
that the evidence of PW1 corroborates all others with regard to the
silver gun having been firstly in possession of A1 and later in
possession of A2. Secondly that there had been a struggle over the
silver gun. A1l further agreed that Deceased's gun had been lying
next to him on the floor. And that PW 1 and A1 were seen struggling
for possession of the silver firearm.
PW 5 was
Separola Letsipa who was the last Crown witness. He testified that he
resided at Peka. He had been drinking beer at the tavern. He was
seated alone and not sharing his beer with anybody.
drinking A1 entered the tavern and went straight to the counter. He
produced M20.00 note. The witness was not aware whether A1 bought
anything. The Deceased rose from where he was seated. He went towards
A1 and then produced a gun. He rushed when he approached A1. A1 had
already turned towards Deceased. He said Deceased had not said any
word when he rushed to A1. He said if there had been any exchange of
words he could have
even if he could not have heard clearly what was being said. A1 and
the Deceased then struggled over Deceased's gun. A1 had also drawn
his own gun.
during the said struggle that the witness rose and ran away towards
the door. When at the door he looked back and saw A1 holding the
silver gun. When just outside he heard a gun report from inside the
tavern. He was only aware that the report came from inside the
tavern. He and others went to the window and peeped into the inside
of the tavern. He then saw Deceased having fallen and with Exhibit 1
(9 mm gun) next to his right hand. At that time PW 1 was holding A1.
A1l had rushed out of the tavern except PW1 and A1.
peeping at the window the witness said he saw A2 then enter into the
tavern. He took the gun from A1's hand. He then pointed the gun
upwards and shot. Immediately afterwards A2 went outside the tavern.
While still holding the firearm which he was using to stop vehicles
one of which was a taxi he ultimately stopped. A van approached but
A2 did not board the vehicle. He got into the van which took the
direction of the police post.
came back with the police officers. The officers then got into the
tavern. It was not clear whether there and then A2 was asked about
the silver gun. Deceased's body was later carried away in vehicle
which A1 also boarded.
asked about the silver gun. A1though he did not hear what A2 said the
witness knew that the gun was said to be with one Lebohang Kofo. This
Court already knew that through the evidence of Lebohang Kofo the gun
ended up in possession of Hape Kofo, Lebohang's brother. The Crown
then closed its case. I need to observe immediately that it
increasingly became unclear until the close of the Crown case as to
what the Accused's defence would be. At the end the only material
conflict would be about the identity of the gun referred to by
Ntabejane Ntabejane (PW 4) in the PE as against what he said in the
box. The only aspects being uncorroborated being whether the Deceased
had had an identity card and what statement he made when he
application for discharge at the end of the Crown case was made in
terms of section 175(3) of the CP&E by the Accused. This was in
respect of the last three (3) counts. Only in respect of Count II
(about 7.65 pistol) did the Court find that the Accused had no case
to answer. See Appendix I (Ruling of the 22nd March 2002)
Accused then testified in their own defence as DW1 (A1) and DW 2 (A2)
who will continue being called A1 and A2 respectfully.
that he stayed at Peka. On the day of the death of the Deceased, at
about 7.00 am he went to Mphasa's tavern. He asked PW 3 and PW 6 (at
the PE) to give him two (2) quarts of beer. He would pay later. They
obliged. He partook of his beer and went back to his home which was
A1 left his home and went back to the tavern with intention of paying
for the beer which he had consumed earlier that morning as already
said. He had in his possession a 7.65 pistol which had belonged to
his friend. When he got into the tavern he had a M20.00 in cash with
which he approached the counter to pay. He was expecting to be given
back some change money.
over the counter to deliver the money to Khotso Matlanyane (PW 3 at
the PE). When Khotso was on his way to the cash machine, Moremoholo
(PW 6 at the PE) told A1 to watch out. This Court noted that this was
not corroborated by the evidence of the said Moremoholo. A1. said
since he did not suspect anything he ignored the warning that he
should watch out but insisted on receiving his change money. As A1
said he observed that both Khotso and Moremoholo who were at the back
of the counter were in fear and hesitated to approach the cash box.
They told A1 that someone was pointing a gun at him.
heard this warning he looked back and realized that a light
complexioned gentleman (Deceased) was pointing a gun at him. The
gentleman was in private clothes. He was then about six (6) paces
from A1. A1 said he was then able to see both hands of the said
gentleman. He was able to see that he held a gun in his right hand
and nothing else. Neither did the gentleman show him anything. I
however at this juncture noted that the admitted evidence of
Morokhane Mafereka had been to the effect that the Deceased had said
to A1 that he must "stand still and not move." The
gentleman said nothing but approached.
then had taken some two(2) to three(3) steps towards A1- At this
stage he realized that everyone was running out of the tavern. He
then approached towards the Deceased. He had felt threatened by the
pointing of the gun. When they met A1 got hold of the gun and they
struggled over its possession. They struggled over it for a long time
until PW1 approached. He pointed a gun at A1. The gun they were
struggling over with Deceased fell down. He got hold of the one held
by PW 1. He says PW 1 was holding Exhibit 3. As he was struggling
with PW 1 he heard a gun report. He does not know which gun had shot.
1 noted that PW 1 had not been challenged in his evidence when he
said he and A1 struggled over Exhibit 3 (the silver gun) which had
been produced and drawn by A1 before the struggle for its possession.
continued to say that while he was struggling for possession of the
he was tripped by a case of beer lying on the ground and he fell down
with PW 1 when then became on top of him. He was asking PW 1 what
they wanted from him. PW 1 vouchsafed him no answer. Then later A2
came into inside the tavern. Other people except A1, PW 1 had gone
out of the tavern. It is to be remarked that A1 would say that it was
only much later when he realized that the Deceased lay prostate in
the same room not quite far away from A1 and PW 1 where the two had
after some time he heard another gun report. And then there arrived a
tall policeman who was in uniform as against PW 1 who was also a
policeman but in private. PW 1 ordered the uniformed police officer
to take a 7.65 mm gun which A1 had had in his jacket. The policeman
searched A1 and found the gun A1 was then tied hands and feet with a
cords or this plastic roping. Other police officers arrived. They
produced two sets of handcuffs. One was used to tie his wrists and
the other was used to tie his hands across the palms. He was then
pulled to the vehicle and was placed at the back of the van. He was
taken to Peka Police Post and later to Hlotse Charge Office where he
was later informed that he had killed a police officer. He was
eventually taken to Court where he was remanded in custody. I would
observe that at the time of trial he was no longer in custody having
been allowed out on bail which
upshot of A1's evidence was that they struggled for the .38 gun with
PW1. He heard a gun report. He did not shoot the Deceased. Neither
does he know who shot the Deceased. After the gun report he did not
see where the Deceased was. It was those aspects of A1's account
which the Crown submitted false beyond a reasonable doubt.
defence then called A2. He testified that he lived at Peka. In 1999
he was a student at National Health Training College in Maseru. On
the day of Deceased's death he was at Peka where he had gone to see
his family. He had left Maseru on the previous day. On the fateful
day he had accompanied his wife who was going to work. He went up to
the bus stop. From there he went to the tavern of one Mashape where
he drank with one Koto (PW 5 at PE)
Mashape's tavern A2 and the said Koto went to the bus stop with the
intention of boarding a taxi to Kolonyama. He said at this point they
were moderately drunk. A2 then asked Koto that they take some more
beer before as transport to Kolonyama was not yet available. They
went across the road to Mphasa's tavern. Having just crossed the road
and before getting to the tavern A2 said they heard a gun report.
when he reached the outside of the tavern there were many people
crowded outside. He immediately entered the tavern. He found PW1 on
top of A1 and both were clutching at a gun. A2 had known PW 1 to be a
policeman. Before this date they had not had a quarrel or a clash. PW
1 then looked back and told A2 to come and help him to take away the
gun A2 then told PW 1 and A1 to let go of the gun because they were
both holding on to it. They agreed and slowly released the gun. He
bent over in order to pull the gun. They had held the gun along the
chamber while A2 held it by the butt and left.
retrieving the gun he turned away and had had the gun pointed
upwards. He proceeded towards the door and as he said he
inadevertedly pulled the trigger hence the gun blasted into the
ceiling and hence the gun report that followed. He had not had any
experience with guns. That is why the gun went off as it did. His
intention had afterwards been to alert the police at their station.
went out of the tavern towards the bus stop. He asked one taxi owner
to take him to the police station. He refused. He proceeded to the
tarred road. A van emerged. He stopped the van. The driver agreed to
take A2 to the Peka Police Station.
police station A2 made a report to one police officer about the
events at Mphasa's tavern. Other officers were summoned to go to the
tavern in accompany of A2. They reached the tavern and entered. A2
had still retained possession of the silver gun he retrieved from PW1
and A1 at the tavern as said before. He gave the gun to one Koto
whose evidence was admitted in the proceedings. A2 then went home. He
was later fetched from his home back to the tavern by the police. He
was then asked about the silver gun. He reported that he gave the gun
to the said Koto.
later taken to the police station where he was told that PW 1 had
reported that he (A2) pointed and hit him with a gun as a result of
which conduct a charge would be laid against him. He denied having
committed the offence. He was however taken to Court where a charge
was read to him. He was remanded in custody. I would observe that at
the time of trial he was no longer in custody having been allowed out
on bail which remained extended to-date.
evidence of the last Crown witness Separola Letsipa corroborated the
testimonies of PW 1, PW 2, PW 3 and PW 4 on the fact that both
Accused had possession of the silver gun. That furthermore PW 1 and
A1 struggled over possession of the silver firearm and that the
Deceased's firearm was found lying
on the floor. And none of the witnesses suggested that the Deceased
had ever used his.
submitted that the evidence outlined proved beyond a reasonable doubt
that the first Accused killed the Deceased unlawfully and
intentionally with a .38 revolver while the second Accused unlawfully
and intentionally assaulted PW 1. I have already dealt with the
aspect of the 7.65 pistol in my ruling on application for discharge.
I also took account of the admitted evidence of Morohlane Mafereka.
believed on overwhelming evidence that the silver gun came from A1.
Indeed he did not venture to say that it did not belong to him but to
someone else. Secondly, there was no reason suggested by A1 as to why
the Deceased ended up sprawled on the ground with his gun near him
except that he came short of admitting that he was shot through the
gun that he A1 and PW 1 had in their possession during the struggle.
not suggest that Deceased was shot through his own gun. The evidence
was therefore overwhelming that he got into a struggle with the
Deceased for the latter's gun but that was not the gun which
discharged. As A1 himself said when he realized that the Deceased was
approaching with his gun
difficult to speculate nor was it suggested that PW1 could have shot
his fellow officer. Any doubt cannot linger in the absence of any
suggestion in that regard.
inference is irresistible that the first gun report was the time when
A1 and the Deceased were struggling. I found it difficult to
disbelieve PW 1 that he had already joined the struggle. How the gun
in A1's possession activated A1 was not able to explain. I had no
alternative but to believe the account of PW 1 as the truthful one
and the most inherently probable in the circumstances.
to do with self defence or provocation would have been worthy of
consideration if the initial response by A1 was that he owned the gun
and he used the gun in circumstances such as to justify those
defences. His attitude was to distance himself from the silver gun
while offering no explanation as to how the gun released the fatal
A2 was a
strange proposition. He had been drinking before going to the tavern.
One witness said he could have been moderately drunk. A2 denied this.
When people were streaming out of the tavern after the gun report A2
boldly stepped into the tavern and was seen approaching the two
gentlemen who were fighting over the gun. This he did without
hesitation. He was itching to get into
people were streaming out of the tavern after the gun report A2
boldly stepped into the tavern and was seen approaching the two
gentlemen who were fighting over the gun. This he did without
hesitation. He was itching to get into action despite that he was not
a party to the original events.
it not difficult to believe that A2 was persuaded by A1 who was his
friend if not an acquaintance to extract the gun from the two
gentlemen and cause PW1 to release A1 at the urging of A1. His
actions indicated compliance. He ended up with the gun and was seen
bending over. He did all or either of the following: pointing the gun
at PW 1 and hitting with the gun. A1l these were an assault and an
unlawful one at that. In the regard to the act of pointing PW 1 was
corroborated by PW 3. No motive was ascribed to why this witnesses
would fabricate against A2. The Crown correctly conceded that A2
would only be convicted of assault common as against the verdict of
attempted murder for which (the latter) he did not have any
Court has already commented about the problem of the defence of
self-defence by A1. The Defence Counsel sought to persuade this Court
that there was more in that defence in favour of the A1 brought about
by the following factors.
Deceased was holding a gun and nothing else. That the Deceased never
ever said a word to A1. That besides PW1 who was a police officer
himself, none of the other witnesses saw or was able to observe the
Deceased identifying himself.
Court has believed that a witness observed and heard Deceased make a
statement to the A1. Even if A1 was to be believed in what he said in
this regard he did not explain to the Court as to how this was
significant or contributed in anyway to his defence. If the Deceased
did not introduce himself how, by that alone, did it conduce to A1's
behaviour and his alleged defence?
correct that there were conflicting versions in relation to how the
Deceased approached A1. One version was that he did that gently. The
defence said if it was so the rest of the witnesses would have seen
the Deceased identify himself. This is difficult to conclude on.
Other things would still get into the picture. For example whether
the witnesses were attracted to the movements of the Deceased at that
time. And secondly were there not other things attracting attention
of the witnesses. I did not see why necessarily if the Deceased was
moving slowly or gently towards the A1 he had to have had all his
difficulty was that the Court was not told nor did A1 seek to
why he acted the way he did merely because the Deceased had not
identified himself. If he had it would have made sense to look into
whether that would be a defence in favour of A1 and how so. I however
observed that Deceased approaching A1 in the way he did, in a place
full of people and unexpectedly so could have precipitated action on
the part of A1. May be a better approach would have done. But that is
the best I can say about this aspect because it remains purely
evidence of PW1 was unchallenged that during the struggle between the
Deceased and A1 the latter produced Exhibit 3 (the shining gun). PW 1
testified so and he was unshaken in his testimony that it was that
gun that was used to shoot the Deceased in the circumstances that PW
1 described. This Court would have no reason to disbelieve PW 1.
PW 1 said
he was himself unarmed. The defence contended that it was not in
accordance with the dictates of common sense that PW 1 could have
been unarmed. That he could not have gone about looking for a suspect
like A1 as he has been described without himself being armed. The
problem was that PW 1's testimony went mostly unchallenged with
respect to the issues of whether he himself had a gun. In any event I
believe that what was the real issue was not that he himself did
produce any gun. A1's denial that he himself carried the
went mostly unchallenged with respect to the issues of whether he
himself had a gun. In any event I believe that what was the real
issue was not that he himself did produce any gun. A1's denial that
he himself carried the shiny gun would be false beyond any reasonable
also correct that PW 4 said that during the struggle he saw that A1
was holding exhibit 3. It was admitted by the Crown at the PE the
same witness had said that he saw A1 holding a different gun. I did
not see how this conflict worked in favour of A1 when the evidence
was overwhelming that he had a firearm and it was Exhibit 3. And
since PW 4 admitted that he could have made a mistake. Even if there
was a doubt it was not explained to me how it would affect the
finding that A1 did not deny having been of possession of Exhibit 3.
If not he should have come out to say where the gun came from and
forthrightly he should have said so. In the result the absence of a
reasonable explanation by A1 made the Crown's version is most worthy
of acceptance as the truth.
Court did not see why PW 5's powers of observation could have been
affected merely because he looked back when he was running out of the
tavern. It was granted that there was already confusion and people
were rushing towards the door to exit. PW 5 said he realized then
that A1 was armed with Exhibit 3. I observed that there was more than
sufficient corroboration that A1
with Exhibit 3. Despite that Khotso Manthanyane had said when he
rushed out A1 was not holding anything the evidence on this aspect
was overwhelming. I concluded that this was proved beyond a
I was not
persuaded that a demand for a certificate for an unlawful possession
need to coincide or be contemporaneous with the accused being in
actual possession of the unlawful firearm. As Defence Counsel said
"There was no evidence or record that a firearm certificate was
demanded from A1 and he failed to produce it." Much as it was
proved that A1 had a firearm the onus has since been on him to
produce a certificate. He failed. I disagreed that there was room for
any doubt once A1 has failed to date to produce the certificate of a
gun that was retrieved from him. It is because he did not "hold
firearm certificate in force at the time."
I had a
serious problem in accepting that while it was not disputed that the
gun that shot the Deceased was Exhibit 3 (silver gun) I could accept
any other version where no version was offered by A1. Furthermore I
did not see that there had been any conflict in the Crown case
regarding the shooting of the Deceased except that one witness said
he did not see what happened in that regard. I accepted that once it
was proved that the silver gun came from A1 and it was the gun that
fired inferences inclined to the Crown's version as the real one when
not able to venture as to who shot the Deceased. Not even that he
(A1) shot Deceased in self-defence. I accordingly found no merit in
the Defence Counsel seeking by inference that if Deceased did not
identify himself and that A1 did not possess the silver gun it would
result in A1 having acted in self-defence. That would amount to
serious and bad speculation inasmuch as A1 did not say, when he
testified, that he acted in self defence. He did not suggest that the
killing was negligent and unintentional. It is because intention can
be spontaneous. There would necessarily be no need to
prove-premeditation. I concluded that A1 had intention to kill in the
manner of dolus eventualis. The struggle as testified by PW1 can only
indicate that A1 was reckless. As van Blerk JA said R v Horn 1958(3)
457 at 466, F-H.
"It is clear that in the case of dolus eventualis intent to kill
will be present where the wrong-doer pursued that act with
recklessness as to whether or not his is fulfilled in death. The
natural concomitant of his recklessness is that the wrong-doer must
in fact have (not ought to have) preconceived death as a
result.................However difficult it may be for the Crown,
there must be proved as an actual fact by inference from all the
circumstances." (My emphasis)
agreed that A1 having testified on his own behalf the test to be
applied was whether the defence story might reasonably possible be
true. If the answer was in the affirmative he was entitled to their
acquittal. I was referred to R v Difford 11937 AD 370,373 and Tšeliso
Lempe v Rex 1997-1998 LLR-LB1959. The problem in seeking to decide
the issue, in the way the defence proposed, lies in the fact that one
did not learn in the first place what the Accused defence would be
nor what his versions would be.
concluded that the Crown has proved beyond a reasonable doubt the
Murder in Count 1 against AI
Contravention of section 3 (2) of Act No.17 of 1966 in count III
Assault in count IV against A2.
by the Honourable Mr. Justice T. Monapathi on the 26th day of June
considered that there is extenuation in this case in favour of A1, I
have to give the following reasons. There may be many including that
one has to rely on the evidence or the findings of the Court in the
judgment. One of the things being that the Accused had the kind of
intention to kill which is said to be a legal one of dolus eventualis
meaning that it was not the kind called directus meaning that this
man had no pre-meditation and was not proved to have meant to kill
on Accused's behalf in my judgment when I said this thing seem to be
precipitated by the way the police approached him and the attempt to
arrest him in the circumstances while much more cautions could have
used. Accused was in an enclosed place it was easy for the police to
take their time to arrest him. They would have been able to ask for
reinforcement but they did not. The Accused was a person who could
not hide that he is a very short tempered man, intelligent as he
appears to be.
remains a person who belongs to that community of Peka where
by the Honourable Mr Justice T. Monapathi on the 26th June 2002
starting this thing from the end because I am dealing with Counsel
who appear not to be ready to assist me who appear to freeze when
they are supposed to stand up and assist the Court with regard to the
difficult matter of sentence. They don't know that this system is run
by Attorneys and Counsel who are there to assist the Court.
is a young man of 32 years old. I have been told that he has no
previous convictions. He is a first offender. He has two children, a
wife and two other dependants. I noted that he was a student at the
NHTC and he even conducts afternoon classes. He is a responsible man.
I agree that a bit of time has elapsed before this case was
finalized. I go back to note that it was said one of his brothers was
mentally ill. That is a man who supports dependants.
proceedings bear out that A2 was a fairly confused man. It might be
due to drunkenness. He must not allow himself to be placed in a
from and this I must take it into consideration in determining
whether there is extenuation. A1though the aspect of drunkenness does
not come out clearly one would strongly suspect that it had an
influence in the way he behaved. He may not had been very drunk but
one would strongly suspect that that which he had taken must have
some influence in the way he behaved.
I do not
want to make a specific finding but my suspicion could have been that
Accused suspected that police were after him. I am saying I do not
want to make a specific finding. This could have added to some
frustration on his part. On the other hand one could have suspected
that it was brought the kind of a sensitive person he became when he
was approached. In his favour it must have frustrated him the fact
that things were against him. That is why I thought police should
have approached him in a better way and I am sure that they would
have easily arrested him if for example they waited for him outside
the tavern. I do not even want to prescribe how police should behave
but there was just no caution in the way they approached him.
that there is extenuation and I will therefore not have to speak
about the sentence of death when I sentence him. I am not bound to do
that. And I may not choose that because there is extenuation.
actions were very strange. I suspect that soon thereafter he must
havebeen ashamed of what he did because his actions were all
contradictions. Here is a man who suddenly gets into a tavern in the
way he did and suddenly here is a man who is able to sought the
support of the police and here is a man who was seen going about with
a gun and who made attempts to hide a gun and in the process of
asking for a transport to the police he was wailing about this gun.
The way he was behaving with a gun in hand cannot be minimized.
taken all these things into account more especially him as an
individual and the crime that he has committed and that the society
would expect him to be punished for what he did but I am prepared
that I should be as lenient as possible with a warning that in the
future he must behave. Here is a man who is at school. Here is a man
who is able to tutor children. He must be a very strong man
academically but that will be of no use if he has got a weak
character and shows that he must do a lot of checking on himself and
this is a warning. Stand up Sir. You are sentenced to prison for
three (3) years and the whole sentence is suspended for three (3)
years on condition that you don't get yourself involved in crimes
involving violence. I am warning you. You are very lucky.
come to you A1. Before I say anything I have to note that where the
a human being is involved it is a serious thing. And although I have
not been told very much about the Deceased he must have dependents,
and he must have relatives, he must have those to whom it is a
was involved in public duty and serious kind of work that involves
the security of everyone of us here. He was a police officer. It is
significant that he died on public duty and that I note seriously.
The two things make his death very serious and aggravating towards
will not come back he has gone forever. -Again the loss is a
remarkable one it has to touch the way the Court is going to sentence
the accused. Thirdly, the Accused was having a dangerous weapon. It
was a dangerous weapon in the form of a gun which was unlicensed and
he was carrying it about in public and he ended up using it in public
and how he came to use it I have already commended. A1l in all it
indicates that he has committed a serious offence.
It is in
serious offences like this where the Courts must show responsibility
much as a Court has to impose a reasonable sentence it has to be a
sentence that makes sentence that drives the point home that the
Courts are serious in their responsibilities to punish wrongdoers.
Indeed a sentence need not be too harsh
inhumane. Neither should it be too lenient. I may as well indicate
that sentencing is a difficult exercise as Mr. Molefi pointed out in
referring to that case of R v Lefa Moloi & Another.
in meting out a sentence has to take into account so many things. I
agree with Mr. Molefi in that regard I take into consideration those
aspects that he has pointed out. The death of a human being touches
on the feelings of not only the society but those of the relatives as
I have said.
- One of
the sentences that a Court has to consider is the one that concerns
whether he should be imprisoned or not. I note that the modern trend
is not to send people to prison unless it is very necessary. A1though
people who argue for sending to prison speak of imprisonment as
having certain benefits. One of them is that a person is sent to
prison so that he may be rehabilitated. So that rehabilitation is
emphasized nowadays so that it is emphasising rehabilitation
disadvantages of imprisonment are brought to background other
emphasis of imprisonment such as retribution and deterrence are
brought into the background because rehabilitation is the most
judgment I have spoken about things that belong to the circumstances
of the commission of this crime things that belong to how this
was arrested. Most of these things have been dealt with when
was addressing rne including things like relatives of the deceased
are likely to sue Accused person for damages and so forth. I have
noted the personal circumstances of this accused person. That he his
a married man, he has two wives and he has four children to support,
that he is the only breadwinner, that he is a first offender. That as
I have found in my judgment this crime was not premeditated, he lost
his job, he acted out of frustration. One of the things that were not
emphasized during judgment was that the gentleman could have been
intoxicated and that his case has taken a long time to resolve since
1999. These I have considered.
considered mostly the three aspects that I have spoken about which
make this crime a very serious one. That seem to attract a sentence
that I will pass. Accused stand up. My sentence is that you will be
sent to prison and it will be for a period of twelve (12) years
without an option of a fine. That is with regard to the count of
murder. The other count was that of possession of the firearm. For
that one you will be sent to imprisonment for one (1) year. The two
sentences to run concurrently.
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