HIGH COURT OF LESOTHO
by the Hon. Mr. Justice M.L. Lehohla on the 12th day of February,
accused was charged with the crime of murder. It is alleged in the
indictment that on or about 21st January, 1990 at or near
Ramonaheng in the district of Berea, he unlawfully and intentionally
killed one Sekonyela Tlatsa.
accused pleaded not guilty to this charge.
agreement between Counsel appearing for the respective parties the
P.E. deposition of PW7 Litaba Makoro who has since died was
in terms of section 227(1) of the Criminal Procedure and Evidence Act
of 1981. This agreement was reached notwithstanding
that the section
requires that there be proof on oath that the witness has died. This
evidence was read into the recording machine
and made part of the
record in this proceeding. Mr. Peete for the defence however wished
it to be
record that he was not able to cross-examine this witness for the
reason stated above.
admissions were made in respect of the depositions (at the
preparatory examination) of
PW2 Joel Malataliana
PW3 Dick Matsau
PW6 Dr. Goerttle Germanic who has since left Lesotho for his home
overseas. Thus his evidence also was admitted in terms of section
of our C.P. & E.
'Mamosiuoa Kopu and PW9 the learned Magistrate Mrs. Machaha.
mortem prepared by PW6 was handed in marked "A" .
confession made before and taken down by PW9 was accepted to the
extent only that it was made and not necessarily as to the
proposed to retain the numbering given to witnesses as they testified
at the P,E.
then proceeded to hear the evidence of PW5 No.3488 Detective Lance
Sergeant Seboka who testified that at
of the event he was stationed at T.Y.. in the C.I.D. section. He said
he has been a policeman for fifteen years. On 21-1-89
was at his house at T.Y. It was about 10 p.m. that night when police
who were on duty came to his place. Following
a report they gave him
about a dead man PW5 went to the Charge Office and collected
Detective Trooper Matete with whom he left
in a vehicle for the scene
at Ha Ramonaheng. At the scene they found many people having already
gathered there. The place was above
the road near the T.Y.
Magistrate's Court estimated at about 50 paces apart.
shown the deceased who was lying near the Unique Motor Spares garage.
The body of the deceased was identified to PW5 by
one Malupe Lesita.
PW5 said he had known Malupe before but not the deceased.
distance of 50 paces from the deceased PW5 saw a trail of blood. He
observed that the body was showing signs of stiffening
that riguor mortis was setting in.
of blood led from the place where the body was lying to some spot 50
testified that even though there was no moonlight he was able to
observe what he saw by aid of the headlights of
vehicle and the light from Unique Motor Spares garage.
deceased was, according to PW5, lying on his back in a pool of blood.
On undressing the body PW5 discovered two wounds on the
chest; flanking the sternum. They seemed to be open wounds. There
were other wounds on the back of the deceased. There
were six of them
in pairs flanking the spinal cord. Though they were stab wounds they
were not open. The blood seemed to have come
from the front chest
wounds. The only blood from the back wounds seemed to have coagulated
before it could drip into the pool below
was taken to the TY Government mortuary. No additional injuries were
sustained by the body between the scene and the government
following day PW5 went to inform the deceased's relatives about the
death. When he came back to office he found the accused
present there. After a few inquiries from the other police as to the
accused's business there PW5 called the accused, identified
to him and informed him that he was investigating factors relating to
the deceased's death. After giving the accused the
accused gave an explanation whereupon arrangements were made to take
him before a magistrate.
cross-examination PW5 said he had known the accused for about 3
years. He had also discovered through investigations he made
immediately around the scene that although he did not know the
deceased he nevertheless knew the deceased's sisters. He testified
that he had never had trouble with the accused before. PW5 said he
didn't know that the accused had been stabbed with a knife but
subsequently he came to know that.
he saw any wounds on the accused PW5 said if he is not mistaken while
already on bail the accused showed him a wound on
sustained, as the accused is reported to have said, from boys from
the deceased's village. At this stage there was no
mention of the
deceased as having taken part in that previous stabbing.
described the nature of the trail as consisting of blood drops on the
ground formed in short intervals from one another. The
answer to a question under cross-examination whether he would say the
drops were from wounds on the back stated that
he thought they could
have been from the front wounds because those were open. He further
stated that he
deny the accused's story that the fight started and ended at the gate
to the Magistrate's Court, He conceded that the
trail began at some
distance other than the spot where the stabbing occurred. The import
of this to me is that the stabbing occurred
and the blood started
showing on the ground some distance away from where the stabbing
occurred because the accused and the deceased
were not stationery but
running during the incident.
elicited from this witness that the Unique Motor Spares garage lights
by aid of which he was able to see the deceased clearly
and the nearest light to the deceased was about three paces away.
conceded that because the deceased was lying on his back one could
not be certain whether the blood which had welled up
beneath him had
exclusively emanated from the front wounds.
put to this witness that the accused admits inflicting the front
wounds. The witness further conceded that when the accused
explanation to him he referred to the front wounds and denied any
knowledge of the back wounds. He also said he wouldn't
deny if the
accused said he inflicted the
wounds in self-defence. In fact he admitted this as the version given
to him by the accused during interrogation.
stated that the deceased was wearing a sweater which even bore the
stab punches opposite the chest and back wounds. He however
this sweater to the deceased's relatives before any court could have
had the opportunity to see it. This is indeed regrettable
not sit well on a police officer of PW5's experience.
any investigations had been mounted to exclude . possibility of the
back wounds having been inflicted by any one else other
accused he pointed out that PW7 Litaba Makoro indicated that he had
been walking with the deceased and the deceased had
not had any
quarrel with anyone besides the accused at the time.
elicited from PW5 that PW7 volunteered the information supplied to
6731 Detective Trooper Mosuhli's testimony is that he knew the
accused for a long time and that on 22nd January 1989 in
he met the accused at the charge office at T.Y. This witness found
the accused there. The accused approached PW4 and
handed a knife
Exhibit "1" to him as well as
him an explanation about Exhibit "1". PW4 gave the accused
a charge of murder because the man the accused was talking
cross-examination said the accused said that Exhibit "1"
came from the person he had had a fight with. PW4 said
"1" had blood on it.
his evidence at the end of the Crown case the accused said he knew
the deceased and had met him at a farewell function
High School. He even remembered an incident during that occasion when
he intervened in the deceased's favour when
the deceased was fighting
some boys there.
21-1-89 the accused said he was at a hotel drinking liquor from 3
p.m. till 6 p.m. when his aunt or grandmother asked him to
her home to Ha Ramonaheng. The accused complied and the two took a
road leading to Ha Ramonaheng via the shopping area.
way they saw some boys besides the road. These boys started hurling
abuse at them. This group of boys seemed to be following
them as they
headed for M.S. shop. Then the group resolved itself into two persons
who definitely made a
for the accused and his aunt while the balance of the group remained
behind. The accused didn't know these two people but
that one of them was wearing a white hat whom he later recognised as
Sekonyela Tlatsa the deceased.
accused and his aunt decided to go to Mr. Mokhali's home to seek
protection against possible attack by these people who were
them. Unfortunately Mr. Mokhali was not able to spare any moments for
such help as was requested because he Was busy
selling liquor to his
accused testified that he had had previous problems with T.Y. boys.
On 12-5-88 when going out from the T.Y. stadium he was way-laid
some of them near Petrose's home where he was stabbed under his left
arm-pit. The Court was shown an old scar in support of
after the accused and his aunt had come and settled in Mokhali's home
for a while the man with a white hat came in.
Then the accused and
his aunt left. But along the way they saw the same pair that they had
seen earlier. This time the pair were
in front of Alpha Motors. The
"hey you ram from Lithabaneng what do you think you are. Stop
regard the accused denies the late Litaba
evidence at P.E. that the deceased addressing himself to the
accused's aunt said
"young lady do you hear I am talking to you".
PW7's testimony that the accused is said to have said to the deceased
"you boys of Ha Ratsiu you look down upon people".
accused says the deceased grabbed hold of him. He admits that PW7
grabbed hold of the deceased when the deceased seemed bent
trouble to the accused.
accused's version goes further to show that the deceased pulled away
from PW7 and came at him again and at the same time PW7
came to the
accused too. The accused was quick to say PW7 never spoke addressing
himself to the accused asking the latter not to
mind the deceased for
the deceased was drunk.
juncture the accused said they were near the court's gate. He said at
this point he could only see the roofing of Unique
garage and not the place itself. He was not certain if there are any
lights at the Unique Motor Spares Garage. He
related his tale further
to show that the deceased grabbed him and said
"it seems you didn't quite feel when we.
they stabbed you last year" Asked to repeat this he said "it
seems you didn't quite feel when we stabbed you last year".
accused said the deceased took out a knife. The accused asked him why
he was doing so as well as reminding him of the incident
intervened for the deceased at Assumption High School.
accused denies PW7's evidence that he saw the accused chase after the
deceased for some 50 paces.
to the accused the deceased grabbed hold of his hand and the two of
them struggled for possession of the knife held by
the deceased. The
accused says he managed to overpower the deceased and dispossessed
him of the knife. Thereafter, so the story
goes, the accused tried to
walk away but the deceased took a knife from PW7 and tried to stab
him. Then the accused, so he says,
took out the one he had placed in
his pocket and stabbed the deceased in self-defence. The accused said
when he stabbed the deceased
the latter kept coming at him. He
further gives pungency to his story that he was drunk as well as
scared while stabbing the deceased.
as untrue PW7's version that he asked the accused "did you stab
further said the deceased fell down after being stabbed, but rose and
fled along the road leading to Unique Motor Spares garage.
when the deceased retreated thus he didn't see any blood. He stresses
that he knows nothing of the six wounds on the deceased's
denies ever inflicting them. He denies ever chasing the deceased. He
however says he didn't know how he inflicted the
two chest wounds. He
stated that at the time of the encounter with the deceased his aunt
had run away.
following day he went to report the incident to the police. When he
arrived at the police station on 22-1-89 he saw PW7 pointing
as he entered the charge office. He casts a sinister motive at PW7
for the latter's failure to mention the insults hurled
at the accused
and says this shows PW7 is concealing the truth.
cross-examination he said the impression he formed of the two people
following him and his aunt was that they had a common
against either of them or both him and his aunt.
indicated that from Mokhali's the two people following him and his
aunt were between 8 to 10 paces behind. He could see these
very persons who had followed them earlier.
stage when the group of boys insulted the accused in particular; the
two men following the accused and his aunt had not featured.
after passing this insolent group of boys the two men followed the
accused and his aunt; so the accused said under cross-examination.
fact he said these two people consisting of the 38 year old PW7 and
the deceased came from this gang. The accused said he is
21 years old
though he looks 16. The accused said knowing of his situation at T.Y.
he was suspicious of these two people dogging
his foot steps.
accused said apart from being suspicious by virtue of the fact that
these two came from the gang of boys who had insulted him
there was a
further element of suspicion as to their motive because they
quickened their pace when accused and aunt quickened theirs
slowed down when he and the aunt slowed down, showing they didn't
want to go past the people in front of them.
accused said the two followers' intention became manifest when the
deceased insulted him saying
"hey you ram from Lithabaneng you think you are clever" .
the other man i.e. PW7 said anything the accused said "only when
deceased had grabbed me
What did PW7 say...? He pulled the deceased. Didn't he perhaps ask
deceased why deceased was pestering you...? After the time deceased
was grabbing me. What did the deceased say....? He just pulled
himself from the unknown man. Deceased didn't oblige when being
pulled away from you by the unknown man....? He didn't. What did the
unknown man do....? He let the deceased be thereafter. Naturally
realised he didn't associate himself with deceased's actions. He
didn't even know who you were....? I disagree for he let him
deceased was fighting me. But at the stage the unknown man restrained
the deceased you felt he was not that bad for he
assailant from harming you....? Not so. Why not so....? Because when
I got stabbed with a knife one man had come
to ask for tobacco from
me while the 2nd one came to stab me. Did the unknown man join
deceased in harassing and molesting you
when separating deceased from
you...? He did not join him. Naturally you thought he was not that
bad....? No You still had the
feeling that his motive is
significant from the above passage that the accused despite manifest
good actions by PW7 he would not give him credit for
is partly because he disagrees with PW7' s evidence which on material
facts gives a story with a clear ring of truth
to it as opposed to
that of the accused which fails not only to be reasonably possibly
true but is beyond doubt false, and partly
because he is obsessed
with a paranoid fear and suspicion of anyone he regards as a boy from
T.Y. This would ;tend to provide a
motive for the killing.
the deceased appeared drunk that day the accused categorically denied
that the deceased was drunk at all.
accused almost by accident mellowed down to accept what seems to me
to be the patent truth. This is how it went:
"When this unknown man restrained deceased what did he say to
deceased.....? He said he should let go of me.
Why....? Because I am walking with my wife.
This is what PW7 says at P.E. He only differs with you in saying the
deceased was speaking to the woman.....You never said you
look down upon people.....? I never"
be noted that earlier the accused had said when restraining the
deceased from him PW7 had kept quiet and never said anything.
shown above PW7 said what the
at last but involuntarily credited him as the truth.
has the accused manifested this involuntary credit to PW7 than does
he resort to his hitherto begrudging habit. For example
"PW7 says he said to you never mind this man he is drunk...? He
You pick and choose. You admit what he said at one stage and reject
what he further said at the other. Why would PW7 say he asked
to mind the deceased.....? I don't know. May be to implicate me.
How implicate you....? He never said.
Please give the reason he would implicate you....? I can't"
accused said he could not go away and leave his aunt at the scene at
the stage PW7 had pulled the deceased from him for he feared
might rape his aunt.
further attributed his failure to flee in a situation which he
perceived as either his life or his aunt's to the fact that he
drunk, having taken a nip of what he terms Bertrams and more than 12
cans of Castle beers.
heard for the first time, when it was put to the accused that his
story is improbable in the sense that he having taken
so much drink
could overpower a "sober" man who had
mind on stabbing the accused who suffered not even the slightest
injury, that the accused also got injured in the process.
mentioned that he had said the deceased had stabbed him on his
finger. But this is not borne by the record nor was it put to
Crown witnesses by his Counsel who was so meticulous in his handling
and putting the defence case to them.
sought to show that the back wounds might have been inflicted by
someone other than the accused either before the encounter
accused or after. He seeks to support this by relying on PW5's
evidence that these wounds did not seem to have bled. But
suggestion of an unknown element which might be responsible for the
stabbing at the back is defied by PW7's testimony which
that the accused following after the deceased in a chase seemed to be
lowering his hand in a hitting motion at the
deceased. Account should
also be taken of the fact that these back injuries were not deep thus
it would seem their lack of depth
corroborates PW7's version that the
blows were inflicted when the deceased was running away. Thus it
would not be farfetched to
infer that because of the distance the
deceased was trying to put between his body and the knife point the
accused was failing
to achieve the full or proportionate thrust of
his knife into the deceased's back. the suggestion that deceased
already had wounds
at the back when he came to the scene is merely
speculative and conjectural.
theory that the wounds at the back were inflicted by some other
person than the accused after the stabbing is negated by the
immediate presence at the scene after travelling a short distance
i.e. 50 paces by PW7 who makes no mention of anybody being within
vicinity except the accused whom he asked if he had stabbed that man.
Thus the evidential burden shifts to the defence if they
someone came later to inflict the back wounds.
accused denied that it is only because PW7 has died that he says the
deceased got the knife from him in order to attack the
second time round.
accused was referred to paragraph 7 in CRI\APN\56\89 where he had
made a sworn statement when applying for bail in respect of
instant matter. There he was confronted with his own version as at
the time :-
"Two of the gangsters came out insulting me'. Before this Court
you said only one did so....? Yes. How do you reconcile these.....?
Some do reconcile others don't. Did the unknown man intervene in
support of the deceased....? No. But at paragraph 8 of your affidavit
you said the unknown man intervened in his aid....? I must have been
confused. I was new in Court at the time. But events were
fresh in your mind....? Yes. But I was new in Court.
You were not in Court but your lawyer must have been to see you in
prison to get your story....? The lawyer didn't come. My first
was Mr. Phoofolo. He was prevented from applying for bail. Then the
case was taken by Mr. Monyako who never came. At paragraph
9 you said
you stabbed him 2 or 3 times on the body. Am I to say you don't know
how many times you stabbed him......? I don't.
But I am not saying I
don't know how many times I stabbed. But it appears in your sworn
statement i.e. 2 or 3 times.....? I don't
Court: What you said there under oath couldn't have been true you
mean....? It is not true.
How could you be untruthful under oath at that stage.....? Silence".
accused avoided facing the question that the wounds at the back are
consistent with PW7's version that he saw the accused pull
and stab the deceased twice before the two fell out of PW7's vision,
by saying he didn't chase the deceased.
bizarrerie in the accused's story which lacks local colour is
heightened by the following text:
"The man fell down, rose and ran away....? yes What became of
him...? I don't know.
Explain then who could have inflicted these other six stab wounds at
the back.....? He may have come already having them or he
afterwards. The scene consisted of you, the deceased, your aunt and
the unknown man. Surely the unknown man could not
him....? I don't know.
You run way from this point because you know you stabbed him when
helpless and drunk.....? He was still fighting.
Meaning then you managed to overcome him because he had six other
wounds....? I am not saying that".
'Marefiloe Lephema gave evidence largely supporting the accused. Like
the accused she was bent on evading questions. Having
only one of the two men following her and the accused was
concentrating on the accused she was hard put to it to
say why she
ran away yet she was not the centre of attraction. Hence the
suggestion to her by the Crown that she ran away because
deceased, according to PW7, was addressing himself to her, and
according to the Crown this was consistent with DW2's flight
scene. But DW2 sought to evade this question by saying she was
"You ran away for you were scared....? Yes. Who had scared
you.....? Two people following us. At what stage.....? When they
accused. Did they both hold him.....? Only one What was the other
doing....? Just standing.
The accused created an impression that two people were intent on
assaulting him. You also keep saying they, they, they. Do you
give the same impression.......? Yes.
How do you reconcile those two things.....? If he did not have the
same intention as deceased he would have separated him.
So according to you he associated himself with deceased ......? Yes
Though he was doing nothing.....? Yesand saying nothing.....?
Court: Does it surprise you that the accused says this man in fact
pulled the deceased away from him.....? It surprises me for
Had this occurred would you have seen it.....? I would have seen it.
Why ......? for I was a distance away.
C.C: Do you remember giving evidence at P.E......? yes Do you
remember saying the following at P.E.: one of them said 'Hey you
small boy wait for us there'. They came to us and one of them caught
hold of the one who held the accused and asked why he was
accused.....? I remember saying that.
How do you reconcile this with what you said today that the other man
stood there doing nothing.........? I saw him doing nothing.
Do you realise what you tell this Court is materially different from
what you told Magistrate at P.E.......? (silence)
You can't explain away this because you are not honest with this
Court. You want to conceal the fact that the 3rd man went to separate
deceased from accused. You do so to give the impression that the 3rd
man was in the same mission with the deceased.
Do you remember PW7 saying deceased should leave accused because
accused is walking with his wife.....? I didn't hear that.
If it was said would you have heard it.....? No Why not......? He
might have said it to accused. Accused says he was with you when
was said ..........? (silence)".
set out the above account of the accused's and his witness' versions
to highlight the contradictions and improbabilities
therein. The accused at almost the
hour introduced the question of a 2nd knife which he said the
deceased got supplied with by PW7. However it was not put
to PW5 that
this was going to be the accused's version. The Court accordingly
finds there was no such knife. If there was then
PW5 should have been
taxed with it in the light of the fact that he testified that he
interrogated the accused and in his fairness
to the case for the
accused conceded that he would not deny that the accused fought in
self-defence. Mr. Peete sought to make capital
out of this statement
which obviously PW5 could not, basing himself on first hand
observation of events, either truthfully admit
or deny. I accept the
submission that the so called 2nd knife was a mere herring across the
accused is unworthy of credit. Indeed no onus rests on him to
convince the Court of the truth of any explanation he gives. Even
the explanation is improbable the Court is not to convict unless
beyond doubt the version purveyed is untrue. See R. vs Didford
AD 370 at 373. See also Hoffman's 3rd Edition at 409. It is important
to observe that the proposition contained therein should
be viewed in
the light of Miller vs Minister of Pensions (1947) 2 All E,R.
evidence shows that death was due to a stab wound in the left
ventricle of the heart resulting in cardiac failure. The doctor
indicated that there was no chance of
such an injury. The doctor also observed a 1 cm stab wound on the
left subclavicular region. There was another 5 cm stab
wound on the
left axilla. There were also six stab wounds (1 cm to 2 cm) in depth
at the back of the deceased.
of the doctor's finding that one of the chest wounds penetrated the
chest wall and pierced the left part of the heart it
seems to me
impossible that a man having sustained such an injury could stand up
after falling and walk away. The accused's story
in that regard must
be rejected not only as improbable but as false beyond doubt.
being the case it is not difficult for the Court to accept PW7's
story that the accused while chasing the deceased until the
disappeared from his view was lowering and raising his hand in a
stabbing motion towards the deceased. This to my mind accounts
number of wounds which were found at the deceased's back. PW7 from a
distance of 50 paces helped by the garage lights had
seen the accused
effect the movements referred to twice before the two disappeared
around the corner. There was no suggestion by
PW7 that the accused
stopped the chase before disappearing from his view. It becomes
irresistible to accept that over and above
the two wounds that must
have been inflicted when the accused's hand was seen being lowered
twice at the deceased who was running
away four more were inflicted
back. Thus it would seem the fatal wound which bled profusely along
with the other observed on the deceased's chest was
the accused's story as false that the deceased obtained any knife
from PW7 with which to attack him.
being taken of the chase for a considerable length of distance and
the many wounds inflicted on the upper body of a defenceless
coupled with the lethal weapon used on a man who is running away,
though admittedly he had made a nuisance of himself to the
and his aunt, I find that the positive intent to murder has been
proved. Moreover the accused must subjectively have realised
when injuries inflicted on the deceased's upper budy with a lethal
weapon like Exhibit "1" fatal consequences might
Thus he acted recklessly whether such consequences occurred or not.
The accused was in no danger to life or thai: of his
aunt when he
chased after the deceased and delivered the first two blows which PW7
said he saw him deliver. The accused is being
totally untruthful in
suggesting that the only injuries that he inflicted were inflicted at
the scene where PW7 would have seen
him inflict them on the
deceased's front. If such a thing had happened no doubt PW7 would
have mentioned it. It does PW7 great
credit that he having been the
deceased's friend never attempted to exaggerate
that be actually saw the accused inflict the two wounds to the front
of the chest. It becomes obvious that the accused
wishes to cast
doubt as to the existence of good lighting at the scene so as to make
it appear that neither PW7 nor even another
neutral and unbiased
witness like PW5 could see as clearly by the Unique Motor spares
garage lights as they claimed. In this regard
as in many other
instances traversed in this case the accused is being deliberately
dishonest and only bent on trying to mislead
accused is found guilty of murder on the basis of dolus eventualis
Extenuation the Court was asked to consider the following factors
which appeared proved on a balance of probabilities :
conviction was on basis of dolus eventualis, which sometimes is
of provocation and
the Court found that extenuating circumstances exist in this case.
regard to mitigation the Court took into account
of previous convictions
of the accused
of increase in his family as his wife expects a second baby a round
May this year.
increased burden on the accused's shoulders imposed by his father
having deserted his own family
having provided an element of provocation to the accused's actions
resulting in deceased's death
of drink having blurred accused's judgment
evidence that the accused sought to avoid confrontation as
illustrated by his attempt to seek an escort to protect
him and DW2
at Mokhali's. Subjectively speaking his general mistrust of T.Y.
boys was not unfounded.
of remorse manifested by surrender to police. Court accepts this but
imposes a year's imprisonment. My assessors had suggested
higher sentence and I cannot say they are wrong.
: Mr. Thatsane
Defence: Mr. Peete
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