HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice B.K. Molai on the 19th day of November, 1985.
accused appeared before me and pleaded not guilty to a charge of
murder on the following allegations:
"Upon or about the 14th day of April, 1984 and at or near
in the Mafeteng district, the accused unlawfully and intentionally
shot and killed Albertus Nicholas De Waal."
course of this trial, Miss Nku, counsel for the crown, filed a notice
of application to lead additional evidence of two witnesses
D/Tpr. Lemphane and one Bazil Norman Young, a ballistic expert from
the Republic of South Africa. In support of the application,
crown counsel attached the affidavit of the public prosecutor at
Mafeteng Subordinate Court, Mr. Joshua Sempe Sempe, who deposed
he did in fact lead the evidence of D/Tpr. Lemphane at the
Preparatory Examination proceedings held in respect of the accused
Motlomelo Makoae. The evidence was recorded by the Presiding
Magistrate and read back to D/Tpr. Lemphane who attached his
signature as proof that it had been correctly recorded.
conceded, however, that he did not lead the evidence of the report of
the ballistic expert witness, Mr. Bazil Norman Young.
His reason for
so doing was that the evidence involved calling Mr. Young
Republic of South Africa with the inevitable costs and delay. The
application was moved on 28th August 1985 after it had
been served on
the 26th August, 1985 upon the Defence counsel Mr. Addy who opposed
it on the grounds that there was nothing in
the Criminal procedure
and Evidence Act, 1981 authorising the crown counsel to follow such a
procedure and the so-called additional
evidence prejudiced the
accused in the presentation of his defence.
it appears no where in the typed record of the Preparatory
Examination, the evidence of D/Tpr Lemphane who was P.W.13 at
proceedings of the Preparatory examination, does appear in the
original manuscript of the record. A careful look at the
witnesses in the index of the typed record of the proceedings reveals
that after P.W.12, the typist wrote P.W.14.
She has thus not only
omitted the deposition but also the numbering of P.W.13.
additional evidence is meant the evidence of a witness who did not
testify at the Preparatory Examination proceedings,
obvious, therefore, that the evidence of D/Tpr. Lemphane does not
fall in that category.
regards the evidence of the ballistic expert witness, Mr. Bazil
Norman Young, it seems to me there is substance in what the deponent,
Mr. Sempe, says viz. that the calling of this witness at the
Preparatory Examination proceedings would have entailed unnecessary
costs and delay. Indeed, this trial has had to be postponed for
several weeks by this court because the expert witness was unable
find suitable time to come to Lesotho.
I am of the opinion that the Public Prosecutor could have properly
invoked the provisions of S.223(4) of the Criminal Procedure
Evidence, supra, and handed in the expert report which is in the form
of an affidavit. The advantage of handing it in at the
Examination proceedings would have been
report would be included in the record of proceedings so that when
the record was handed to the accused or his legal representative
prepare for the defence case the accused or his attorney would be
aware of its existence.
defence counsel was served with the notice of intention to lead the
additional evidence of the report of the expert witness
actual start of the defence case and the report itself was attached
to the notice of application it could not, in my
view, be argued that
the defence was seriously prejudiced in the presentation of its case.
I was, therefore, prepared to allow
the application to lead the
evidence of D/Tpr. Lemphane and the expert witness, Mr. Bazil Norman
perhaps significant to mention that after the crown had closed its
case in this matter, the defence moved an application for
discharge of the accused on the ground that the crown had failed to
establish a case against the accused. The application was
the crown counsel.
been pointed out in the case of R. v. Thoabala 1981(2) L.L.R.363 pp.
364-5 the test to be applied in an application of this
whether on the face of it the crown evidence established a prima
facie case against the accused. At this stage, the court
obliged to deal with the question of credibility unless, of
course, it can be said the crown evidence was so hopeless
that to ask
the accused person to answer the charge would amount to asking him to
help build a case which the crown itself had
failed to establish.
present case there was evidence adduced by a number of witnesses that
accused was seen firing shots in a hotel bar and the
sustained injuries which resulted in his death. Without going into
the question of credibility it seemed to me, on
the face of it,
the crown evidence did establish a prime facie case for the accused
to answer and I accordingly disallowed the
not, however, mean that the accused was obliged to go into the
witness box and lead evidence in his defence. He was perfectly
entitled to tell the court that in that event the defence was closing
its case without leading any evidence at all. It would then
mandatory for the court to deal with the question of credibility and
apply the more stringent test of proof beyond a reasonable
determine whether or not the accused had committed the offence
against which he stood charged.
court had ruled that there was a prima facie case, the defence, as it
was perfectly entitled to do, decided to close its
leading any evidence. The court had, therefore, only the crown
evidence on which to consider the question of credibility
whether or not it had been established beyond a reasonable doubt that
the accused had committed the crime against which
he stood charged
before this court. I shall now proceed to deal with the evidence.
the course of this trial Mr. Addy council for the defence admitted on
behalf of the accused the depositions of Abert Nicholas
Condie Maisa, Sgt. Mokhesuoe. Sgt. Molapo, Pte Mankoe, Pte Liphoto
and Major Hlehlisi who were respectively P.W.4, 10,
14, 15, 16, 17
and 20 at the Preparatory Examination proceedings. The admissions
were accepted by Miss Nku, counsel for the crown.
were accordingly accepted as evidence in terms of the provisions of
S. 273 of the Criminal Procedure and Evidence
Act 1901. and it became
unnecessary, therefore, to call the deponents as witnesses in this
heard the evidence of P.W.5, Budah Zakhura, who testified that during
the day, on 14 April, 1984, he. Ben Maphathe and
the deceased had
been drinking liquor, first at a butchery and later at the home of
Maphatha in the Mafeteng Reserve. Towards the
evening of the same day
he parted with their company and went to Mafeteng hotel
continued drinking in the private bar till he was again joined by
Maphathe and the deceased.
Maphathe and the deceased joined him in the private bar of the hotel,
the latter was wearing his (P.W.5's) hat which the
witness had left
at the home of Maphathe. During the drinking in the private bar,
there was a time when P.W.5 noticed that deceased
who was very drunk
was engaged in a quarrel with the accused. The accused was a stranger
to him (P.W.5) and was wearing a reddish
jersy or skipper shirt. The
quarrel was over the hat which the accused said the decased should
not be putting on in the bar. P.W.5
had to take the hat from the
deceased when he heard the accused threatening that he would shoot
had taken the hat from the deceased, the quarrel ended and the
accused left the private bar of the hotel. Later on the
P.W.5 noticed a man wearing a dark blanket entering into the private
bar and immediately firing shots at the deceased
who dropped to the
floor. He would not say he clearly identified the blanketed man
because a lot of smoke filled the bar and the
man walked out of the
bar the moment the deceased dropped to the floor. The deceased was
carried out of the bar clearly badly
injured as he was bleeding
profusely. He later learned that the deceased was dead at the
Mafeteng hospital mortuary.
April, 1984, P.W.5 was among the people who were called to an
identification parade held behind the police charge office
where he pointed at the accused as the person he had clearly seen
quarreling with the deceased in the private bar of Mafeteng
evidence of P.W.2, Mafole Sematlane, was that on the night of 14th
April, 1984 he was one of the people drinking in the private
Mafeteng hotel. He confirmed the evidence of P.W.5 that the deceased
and the accused who was a stranger to him (P.W.2) and
reddish skipper shirt were amongst the people drinking
bar. At one time P.W.2 also noticed that there was a browl between
the accused and the deceased. Although he did not know
what the browl
was all about P.W.2 did hear the accused threatening to shoot the
deceased. The argument then stopped and he saw
the accused leaving
hour later P.W.2 noticed a man wearing a dun blanket entering the
bar. The witness did not bother and continued in the
was having with a friend. He suddenly heard shots being fired. There
was a confusion as some people ran out of, and
others took cover in
the bar. He, however, remained stunned in his seat. He could see the
blanketed man standing next to the door
of the bar holding a rifle
which was pointed in the direction of the place where the deceased
had been standing at the counter.
Although he could no longer see the
deceased at the spot where he had been standing, P.W.2 clearly
identified the blanketed man
as the man he had earlier seen wearing a
red skipper shirt and quarrelling with the deceased. Before leaving
the bar, the blanketed
man again fired a few shots on the floor next
to where the deceased had been standing next to the counter.
blanketed man had walked out of the bar, P.W.2 stood up and looked
around. He noticed the deceased lying prostrate on
the floor where
shots had been fired. He was obviously injured. P.W.2 then went out
for his car and rushed to the police charge
office. He reported to a
police officer by the name of Semoli. He returned to the hotel in the
company of the police and assisted
to put the deceased on the car
that conveyed him to the hospital.
16th April, 1984, P.W.2 was also called to a line up held behind the
charge office building to identify a person he had
seen shooting at
the hotel on the previous Saturday night and he pointed at the
identification parade was held and a number of witnesses, including
P.W.2, identified the accused as the person they had
with or firing shots at the deceased was confirmed by P.W.4, W/O
however, point out that P.W.4 did not impress me as a very reliable
witness. He seemed to have a rather poor memory. A clear
this is when he told the court that he did not remember ever giving
evidence in a Preparatory Examination proceeding,
including of this
case, during the whole of his police career. It was only when he was
shown the deposition he made and signed
for at the Preparatory
Examination proceeding of this case that he conceded he was wrong.
P.W.4 testified that P.M.5 is one of the witnesses who failed to
identify the accused at the identification parade which
was held on
16th April, 1984 P.W.5, who was an impressive witness before me
testified not only before me but also at the Preparatory
proceeding that he did identify the accused as the person he had seen
quarrelling with the deceased at the hotel on
the night of 14th
April, 1984. I am convinced that P.W.5 who impressed me as a more
reliable witness than P.W.4 was testifying
to the truth. I have no
hesitation, therefore, in accepting as the truth his evidence and
rejecting as false that of P.W.4 on this
evidence of P.W.5 and P.W.2 that the deceased was injured at Mafeteng
hotel on the night of 14th April, 1984 was corroborated
Nicholas De Waal whose deposition at the Preparatory Examination
proceeding is not disputed by the defence. According
to his evidence,
Albert Nicholas De Waal is the son of the deceased. At about 12
midnight on 14th April, 1984, he was talking to
Mafeteng hotel when he received a report following which he proceeded
into the hotel. As he entered the reception
of the hotel he met
people carrying out the deceased who was unconscious and bleeding
profusely. He immediately assisted in putting
the deceased into a car
that rushed him to the hospital. He accompanied the deceased to the
hospital. At the hospital he rushed
to get a doctor. The deceased was
placed on a table. He could see that the whole of the deceased's
shirt was simply soaked in blood
most of which
from the back. As he tried to speak to him the doctor chased him away
and the deceased passed away.
April, 1984, Albert Nicholas Oe Waal identified the body of the
deceased before the medical doctor who performed the post
examination at Mafeteng hospital.
Dr. V.D. Lugte confirmed that he was the medical doctor who performed
the post mortem examination on the body of the
deceased on 15th
April, 1984. The external examination of the body revealed a scretch
on the forehead above the right eye, a small
round wound on the right
shoulder, a big wound on the left shoulder and a small wound on the
right side of the body. On opening
the thorax, the doctor found ½
a litre of blood in the right cavity. There were two holes leading
into the cavity of the
thorax, one from the right shoulder and
another from the left shoulder. The back of the right lung was
damaged. On opening the
abdomen he noticed two bullet tracks leading
one to the lungs and another to the liver. He actually found one of
the bullets resting
just on the left side of the liver.
these findings the doctor formed the opinion that the deceased's
injuries were caused by bullets with the exception of the
the forehead which was in all probabilities due to a secondary cause
e.g. falling. He further formed the opinion that
death was due to
lung damage with the resultant thoraxic haemorrahage.
mind if the evidence of P.W.1 is considered together with that of
P.W.5, P.W.2 and Albert Nicholas De Waal there can be no
the deceased died as a result of the injuries inflicted by the person
who was firing shots at him in the hotel Mafeteng
on the night of
14th April, 1984.
to the question as to when death had occurred prior to his
examination P.W.1 wrote "some time (in fridge)".
argued that someone at the hospital
have placed the deceased in the fridge where he died of cold and not
as a result of the gun shots. This was in my view, a
argument for P.W.I did testify before this court and explained that
what he meant was that as the body had been
kept in a cold fridge it
was not possible to determine with certainty the exact date of death.
remains for the court bo decide whether or not the accused is the
parson who fired the shots in the hotel on the night in
According to Sgt. Mokhesuoe, Sgt. Molapo,Private Mankoe and Private
Liphoto they were members of the Platton that was
based in Mafeteng
from March to September, 1984. The accused was also a member of that
Platton. On 14th April, 1984, the accused
was among some of the men
who were released to go to town for shopping.
5 p.m. it was noticed that the accused and two other men viz. Pte
Mankoe and Pte Liphoto had not returned to the base camp.
Mokhesuoe testified that at about 9.00 p.m. he was instructed to go
to town and look for the missing men. He, Pte Phafoli
Magaleha got into a vehicle and went to look for the men. They in
vain called at a number of places in town before coming
Mafeteng. He waited in the vehicle while one of the privates went to
look for the men in the hotel. It was while he was
waiting there that
Sgt. Mokhesuoe saw the accused going out through the hotel gate in
the company of two men and a woman. He had
no difficulty in
identifying the accused as there was enough lighting outside the
hotel and he was still wearing the same short
sleeved red skipper
shirt that he was wearing when he left the base camp in the morning.
Sgt. Mokhesuoe called out at the accused
who however,did,not reply.
Later on, he again saw the accused returning to the hotel and going
into the disco hall. The witness
and one of his companions went to
look for the accused in the hall but could not find him. After
waiting in the vehicle for some
eventually returned to the base camp. Sgt. Mokhesuoe was warming
himself at the fire place outside the tent when he noticed
accused arriving and entering into the tent in which he usually
slept. He was still wearing his short sleeved red skipper shirt.
witness also retired into his tent, put off the candle light and
that night accused came into the tent in which Sgt. Mokhesuoe, Sgt.
Molapo and W/O Nkomo were sleeping. He put on the light
and made a
certain report. He was then wearing a dun blanket and carrying his
AK.47 rifle No. 2L134270. This is confirmed by Sgt.
testified that following his report he took possession of accused's
rifle and found that it smelled gun powder as though
it had just been
fired. Accused had earlier been issued with 30 rounds of ammunition.
When he unloaded the rifle and counted out
the bullets, Sgt. Molapo
found that 5 bullets were in fact missing.
4.30 a.m. Sgt. Molapo took accused to police charge office where he
was handed together with his rifle to P.W.3, Lt. II
Ramonate, in the
presence of Major Hlehlisi, Lt. Moremi and Lt. Lehloma. This was
confirmed by major Hlehlisi according to whom
at about between 8 and
9 a.m. on 15th April, 1984 he proceeded to hotel Mafeteng where he
was given two used bullets and an empty
shell from an AK.47 rifle. He
took possession of all these articles and subsequently handed them
over to P.W.3 with instructions
to continue with the investigations.
In as far
as it was material the evidence of Major Hlehlisi was confirmed by
P.W.3 who told the court that after he was duly warned,
gave him an explanation following which he too proceeded to the
private bar at hotel Mafeteng where he noticed
a pool of blood next
to the counter. He noticed that the floor and the capert next to the
pool of blood was damaged. Some liquor
bottles were also broken from
the shelves. There were holes amade on the walls, the door leading to
the reception and one of the
Cabinets in the reception.
4 shells of ammunition, two spent bullets and a
cover were found in the private bar. He took possession of the
shells, spent bullets, a bullet cover and the AK.47 NO.2L134270.
later handed them to P.W.6 D/Tpr Lemphane for onward transmission to
a ballistic expert for examination. This was confirmed
himself who told the court that on 28th May, 1984 he took the
articles to Pretoria in the Republic of South Africa where
them to P.W.7, W/O Bazil Norman Young.
trained ballistic expert with 16 years experience, confirmed that on
28th May, 1984 he received from P.W.6 a sealed parcel.
At the time he
received the parcel he noted its contents in his docket which he
brought with him to court.
to the notes P.W.7 made in the docket the contents of the parcel were
in fact an AK.47 rifle No. 2L134270 without magazine
and not "with
magazine" as it is erroneously typed in the report, five (5)
fired cartridge cases, four(4)spent bullets
and 3 mild steel cores.
examined the AK.47 rifle and fired catridges therein for test
purposes. He found the rifle to be in good working condition. He
subjected the five(5) fired catridges cases to a microscopic
examination and found that they had all been fired from the AK.47
rifle No. 2L134270. Due to damage and the lack of sufficient marks
used for identification purposes, it was not possible to determine
whether the four (4) spent bullets and the three (3) mild steel cores
had been fired from the AK.47 rifle No. 2L134270 or not.
the evidence as a whole I find, as a fact, that the accused was, on
the day in question 14th April, 1984, wearing a
red skipper shirt at
the time he left the base camp for the town, he was seen in the hotel
wearing the red skipper shirt by P.W.2
and P.W.5 both of whom
identified him at a subsequent identification parade as the person
they had seen quarrelling with and
to shoot the deceased in the hotel; he was seen at the hotel still
wearing the red skipeer shirt by one of his senior
Mokhesuoe; he was seen by Sgt. Mokhesuoe returning to the base still
wearing the same red skipper shirt on the same
night. He was
identified by at least P.W.2 as the person who entered the
private bar wearing a dun blanket and firing shots
injured the deceased; he was seen by Sgt. Mokhesuoe and Sgt. Molapo
wearing the dun blanket and carrying his Ak.47
rifle No. 2L134270
which appeared to have just been used at the time he entered the tent
in which the two sergeants slept; he made
a report to the two
sergeants following which report he was immediately handed over to
the C.I.D. Officer, P.M.3 together with
his AK.47 rifle No. 2L134270
and that five (5) fired catridges cases picked on the scene of crime
were found to have been fired
from accused's AK.47 rifle No.
view all these facts lead to but one reasonable inference namely that
the accused is the person who shot at and inflicted
the injuries that
caused the death of the deceased. The answer to the question. I had
earlier postulated viz. whether or not the
accused is the person who
killed the deceased must, therefore,be in the affirmative.
P.W.2 and P.W.5 told the court that as he walked out of the private
bar of hotel Mafeteng following his altercation with the
accused threatened that he was going to shoot him. 1 accept the
evidence that the accused did in fact return to the
hotel and without
saying a word aimed a volley of bullet shots at the upper portion of
the deceased's body. That being so, there
is no doubt in my mind that
at the time he shot and killed the deceased, the accused had the
requisit subjective intention
to kill, if not direct at least in
the legal sense. I would, therefore, find the accused guilty of
murder as charged.
: Miss Nku 19th November, 1985.
convicted the accused of murder we are now enjoined by S.296(1) of
the Criminal Procedure and Evidence Act, 1981 to decide
whether or not there are any factors tending to reduce the moral
blame-worthiness of his act.
regard we were invited to take into account the fact that prior to
the incident that resulted in the unfortunate death of
the accused had been quarrelling with him in the hotel. The obvious
in-plication being that there was provocation.
provocation was not such that it could exculpate the accused, it must
nevertheless be properly taken into consideration
for purposes of
determining the existence of extenuating circumstances.
the court was invited to take into consideration the evidence that
the accused had been drinking on the night in question
apparently drunk. Experience has taught us that when they are under
the influence of intoxication,people tend to do things
they would not
do when sober.
view, the cummulative effect of the above-mentioned two factors was
to reduce the moral blameworthi ness of the accused'act.
I come to
the conclusion, therefore, that extenuating circumstances do
exist in this case and the proper verdict is that the
guilty of murder with extenuating circumstances.
10 years imprisonment.
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