HIGH COURT OF LESOTHO
matter of :
LEBALLO MOKAKE MONYOBI
by the Hon. Chief Justice Mr Justice T.S. Cotran on the 1st day of
accused Leballo Leballo (A1) and Mokake Monyobi (A2) are indicted
before me on a charge of murder. The particulars read
that on or
about the 18th March 1984 at or near Ramohapi's in the district of
Mafeteng one or the other or both did unlawfully
kill Tebatso Khalienyane, hereinafter referred to as the deceased.
accused pleaded not guilty.
defence admitted the evidence of the following witnesses as it
appears in the record of the Preparatory Examination:-
Officer Mara (P.W.8)
gave evidence of identification of the deceased's body and Dr.
Westerhuis testified about the cause of death (severe
and other matters found in the post mortem. Mokete Mokorosi testified
that A1, when in company of A2 and Matente,
handed her the axe
(admittedly used to kill the deceased) saying he will come to fetch
it later. The police however came with
A1 and A2
and others including the headman Lirahalibonoe and collected it.
Warrant Officer Mara testified that he arrested A1 and
A2. He was led
by A1 to Mokete's house where he was handed an axe.
of the case for the Crown with some minor variations in the
witnesses' evidence can be summarised as follows:-
Ramohapi village boasts of two beer halls. They are close to each
Ramohapi and Ha Khalienyane are two separate, but adjacent villages,
each under its own headman.
all the inhabitants of Ha Ramohapi know personally the inhabitants
of Ha Khalienyane.
deceased's home was in Ha Khalienyane. On the day in question (18th
March 1984) he made an appearance at Ha Ramohapi at the
beer hall of
Lephahamela Mofolo some time in the afternoon about 4 p.m. He sat
outside in the compound drinking beer with a man
he knew called
Lebuoajoang Motlohi (P.W.2) from
Ha Ramohapi. Next to them was the bugle of Ha Ramohapi Monare Monare
(P.W.1). Monare Monare knew Lebuoajoang but did not know the
and A2 were identified by Monare (who knows both of them well)
walking along a pathway one after the other outside the compound
Lephahamela's beer hall at about that time.
Monare noticed that the deceased, who was sitting in in his company
and that of Lebuoajoang, had moved away towards the gate of
compound. He saw A2 hit the deceased with a stone which fell him down
and saw A1 hit him with an axe, which he produced from his waist, on
the head, twice, the second time whilst the deceased was prostrate.
According to Monare A1 wore a jacket. Lebuoajoang testifies that he
saw A1 hit the deceased with an axe twice. He did see A2 near
did not see him hit the deceased with a stone.
Mofolo, the owner of the beer hall, saw A1 throw stones at the
deceased who ran towards the gate. He adds that A1
pulled something from his waist, and hit deceased twice on the head.
He did not see A2. According to Mofolo
A1 wore not a jacket but a
shirt of the type that hangs over the trousers.
to A1 he found himself (after earlier having had drinks at his
grandparents home) at the stockfare party of one Mamaki
Matente Monyobi's compound. A1 puts the time at midday. He says that
there arrived a group of men from Ha Khalienyane's
village. At that
stockfare there was music and dancing. The Khalienyane group, which
did not include women amongst them, did not
buy any beer, but "took
over" the party. They kicked a jug of water from a group that
included A1 and A2, interferred
with the music, tampered with the
women of Ha Ramohapi, joined together in a line, and behaved so
disgracefully that they had to
be rebuked by the "chairman"
of the village. They did not, however, heed the advice without being
more belligerent and
left the place throwing stones at those from Ha
Ramohapi group. During this fracas A2's brother, Matente was injured.
One of the
women attending him raised an alarm which was heard by a
person at Lephahamela's beer hall, one Fako Fako (P.W.3) who says the
house was some ½ a mile away. We think it was considerably
shorter, one witness describes the distance as "across
Fako says that he saw A2 only at Matente's. A1, however, says he was
there too and this is more likely to have been
this version of A1 of the earlier events because it has a ring of
truth and rationalises the events that followed. But
he then says
that when the group from Ha Khalienyane hit Matente with sticks (the
latter came to calm them down and was not actually
at the stockfare)
and continued to throw stones at them once coming forward and once
retreating, and having heard that the Khalienyane
group had made it
to Lephahamela's beer hall still throwing stones, he and A2 and
others made their way there. A1 says he carried
stones, but at the
gate, quite by chance, he saw an axe on the ground. He picked it up
and almost simultaneously he saw a stranger
to him, who turned out to
be the deceased, rushing at him wielding a stick and was about to
strike. A1 says he avoided the blow
and struck the deceased with the
axe he had just found in rapid succession whilst deceased was
standing. He denied that he struck
at the deceased the second time
whilst prostrate. He says he had had far too much to drink, was sorry
for the man's death, felt
remorse afterwards because he did not
intend to kill, he simply went to Lephahamela's place to fight the
intruders and drive them
off; a task which he was able to accomplish.
elected to remain silent but with respect to Mr. Kalamanathan who
argued to the contrary there is little in the evidence from
Court can infer beyond any reasonable doubt, that A2 made common
cause with A1 to kill the deceased or anyone else. In
there is no evidence that he knew A1 carried the axe since it was
concealed at his waist either beneath the jacket of
shirt whatever the recollection of the witnesses on the point is. A2
might have harboured anger against the
people for causing injuries to Matente but this did not manifest
itself at more than an intent to engage in public violence
on that group. 1 do not think it could be said that he associated
himself with the killing.
We do not
think that A2 could be convicted of more than assault common and we
so find him believing Monare that A2 did hit the deceased
stone before A1 chopped him with the axe.
As far as
A1 is concerned we reject entirely his evidence that he just found
the axe on the ground. We believe the prosecution evidence
had it on him. Whilst there is evidence that deceased carried a stick
of a very light type we do not accept that he hit
or attempted to hit
A1 with it and in any event even if true, A1's retaliation with a
lethal weapon is out of all proportion to
the weapon (stick) used, if
such was the case, by his adversary.
that A1 did consume some liquor but his memory of the events of that
day does not indicate that he was so drunk that he
did not know what
he was doing. It may be that the subjective intent to kill rose at
the spur of the moment but that does not justify
us in finding him
guilty of any lesser offence than murder though there may be
extenuating circumstances which we will consider
at a later stage.
I find A1
guilty of murder as charged. My assessors agree.
Crown: Mr. Kalamanathan
Defendants: Mr. Mda
circumstances were found in respect of A1 on the following grounds:-
much to drink.
A1 Six years imprisonment.
year imprisonment half of which suspended for two years on condition
that he be not convicted of an offence involving violence
person during the period of suspension.
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