HIGH COURT OF LESOTHO
by the Honourable Chief Justice Mr. Justice J.L. Kheola on the 6th
day of December. 1999
accused is charged with the murder of Tsotleho Mololo upon or about
the 24th day of May, 1988 and at or near Ha Kali in the
pleaded not guilty.
'Makhafa Mololo is the mother of both the accused and the deceased.
On the night in question she was sleeping in her house
drunk and reported to her that the deceased had fought with him. She
said she would confront them to-morrow in order to resolve
quarrel. He left and she thought he was going to his home. He came
back accompanied by one Thabo and he again said that he
the deceased and that the latter had fallen down. They left and took
the deceased to his home.
following day P.W.1 saw the deceased and noticed that he was
seriously ill due to the injuries inflicted by the accused.
taken to Mafeteng hospital where he died about two or three days
Seqao Namane testified that on the 24th day of May, 1988 he was with
the deceased who wanted the accused to buy beer for him.
had just arrived home from the Republic of South Africa where he
worked. When they met the accused the deceased repeated
that the accused should buy beer for him. At one time the accused
even threatened to kill P.W.2 and to take his dead
body to the
mortuary. P.W.2 says after this threat the accused and the deceased
left for their home. After he parted with them
he heard the sound of
sticks indicating that the brothers were fighting. He went to the
chief's place and reported the matter.
The chief said that he would
attend to that matter on the following day. When they parted the
accused and the deceased were armed
He did not see the fight between the accused and the deceased except
hearing the sound of sticks indicating that they were
to the post-mortem examination report the death of the deceased was
caused by a fracture skull with epidural haemorrhage.
defence the accused testified that on the day in question the
deceased found him at the home of'Maketso. He demanded that
accused must buy beer for him. Accused said he did not have money.
The deceased persisted until he gave him M5-00. Accused
place and went to the home of 'Mamosala. While he was there he heard
the deceased and P.W.2 speaking angrily that they
were coming to
'Mamosala to open another room for him so that they could not see
him. After some time he came out of that room because
and P.W.2 were making a lot of noise. Deceased said that the accused
was silly because he refused to buy beer for
him. He said that he had
given him money with which to buy beer.
accused threatened to assault them. They left and went to their
homes. P.W.2 came back running and holding a stick and a sword.
However his sister arrived and took him home before he could use the
weapons he had fetched from
deceased also came back. He was holding a stick and delivered several
blows try to hit the accused. The latter warded off those
the deceased's stick broke. Accused says that after the stick of the
deceased had broken he went to his home and reported
to P.W.1 that
the deceased was fighting against him. He got out of the house and
went to the kraal. The deceased arrived there
carrying a stick and a
sword. He delivered blows with the sword but the accused managed to
ward them off. The accused delivered
one blow with a stick aiming at
the head of the deceased. That blow landed on the left ear. He fell
down. One Nkoe came and the
deceased was taken to the chiefs place.
On the following day the deceased was taken to Mafeteng Hospital
where he died two days
common cause that on the day in question the accused and the deceased
were drunk. It is also common cause that the deceased
aggressive towards the accused and provoked him as much as he could.
The accused tried all he could to appease his brother
and even gave
him money. They fought twice but the crucial and decisive fight was
the second one at the kraal. When the deceased
found the accused at
the kraal he delivered several blows with a sword at the
The latter warded them off. He then hit the deceased on the left ear
fracturing the skull.
accused was viciously attacked by the deceased without any
provocation. He (accused) was entitled to defend himself. In my view
he did not exceed the bounds of self-defence because he hit him only
once, but that blow caused the death of the deceased.
In R v.
M. 1946 AD. 1033 at p. 1027 Davis, A.J.A. said:
"..............the court does not have to believe the defence
story, still less does it have to believe it in all its details;
is sufficient if it thinks that there is a reasonable possibility
that it may be substantially true."
come to the conclusion that following the outrageous behaviour of the
deceased towards the accused, there is a reasonable
the defence story may be substantially true.
the accused not guilty and he is discharged.
Crown: Miss Nku
Accused: Mr. Mafanfiri.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law