CRI/T/15/80
IN THE HIGH COURT OF LESOTHO
In the matter of .
REX
v
MOEKETSI MOTHEBE
JUDGMENT
Delivered by the Hon. Mr Justice F.X. Rooney
on the 9th day of March, 1981
Mr. Muguluma for the Crown
Mr. A.T.R. Remolefe for the accused
The charge against the accused is one of murder in that
upon or about the )30th March, 1980 he did unlawfully and intentionally
kill Seabata Mothebe.
It is not in dispute that the accused caused the death of the
deceased by striking him twice on the head with an iron rod
(Exhibit B) which is normally used as a tethering bin for horses.
Death was due to brain damage. The deceased's skull was cracked
by the blows.
I shall first set out the background to this case which has
been well established by the evidence of witnesses both for the
Crown and for the defence. The accused's grandfather, Moeketsi
was married to 'Mamatita (P.W 4). They had seven sons of whom
the eldest, Matita, died a few years ago. The heir to Matita
was Kahlolo, the elder brother of the accused. Although Kahlolo
is married, he is said to be a man of weak intellect, not
responsible enough to manage his inheritance without assistance.
The family home is at Makobong village where there are two
houses. 'Mamatita occupies one and Kahlolo and his wife Claudia
another. Since the death of her eldest son, 'Mamatita who is now
a woman of advanced years, became dependent for her maintenance
and support on her two grandsons, in accordance with custom. For
some time past, 'Mamatita has been dissatisfied with this situation.
It is probable that her dissatisfaction arises from a fear that
her grand children will not make sufficient provision for her.
2/       She favoured a different

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She favoured a different arrangement which would place the
obligation to support her upon her surviving sons in
particular the deceased and one Mojela.
I have no doubt that this conflict ensued for a time
before the events of the 30th March, 1980. At a family
meeting convened at the end of 1979, it was decided that the
accused should act as a kind of guardian for his brother
Kahlolo. This decision did not please 'Mamatita who would
have preferred the deceased to have assumed that office.
Although Kahlolo was the heir, she resolved to force him and
his wife to leave the family homestead in defiance of his
rights and those of the accused as his brother's guardian.
On the morning of the 30th March, 1980 'Mamatita took the
drastic step of ordering her sons, the deceased and Mojela to
unroof the house occupied by Kahlolo and his wife. The
deceased climbed on the roof and proceeded to destroy the
thatch thus precipitating a series of events which were to
have tragic consequences for himself.
Most of the witnesses who gave evidence at the trial coloured
their testimony in accordance with whichever faction of the Mothebe
family they were attached. As a result, there are considerable
conflicts of evidence. Fortunately, because of the view that
1 take of this case as a whole, it will not be necessary for me
to make specific findings of fact on all of these contentious
issues. I do not propose, therefore, to review in detail the
evidence of all the witnesses, but, I shell endeavour to re-
construct the events of the day by taking a broad view of the
evidence adduced.
The day began for the accused peacefully enough. He first
took his horse for exercise ana then went to a stock-fair where
he met a number of his friends who have a mutual interest in the
promotion of stock-fairs for both amusement and profit. At
that time the accused carried no weapon other than a walking
stick which had once been broken and had been repaired by
binding a band about the effected part. It was while the accused
was enjoying the company of his cronies that his wife 'Malerato
(D.W. 3) burst upon them with the startling news that the
deceased and Mojele were unroofing Kahlolo's house. The accused
/was greatly

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was greatly shocked to hear this,as he put it:
"I stood up Everything came to
a stop, that is,all happiness
left me."
The accused left the stock-fair at once. He was determined
to put an end to the destruction of his elder brother's house at
any cost. He realized that his walking stick was an inadequate
weapon with which enter the fray against his partenal uncles. As
ho neared the house of 'Maselloane Mothebe (PW 1), he sow her
some distance away and called out to her requesting permission
to borrow her husband's fighting stick. When 'Meselloane
refused this request, the accused passing her house espied
Exhibit B in the yard. He went and took it. Now more securely
armed, the accused proceeded on his way to Makohong village.
The accused was coming from the direction of 'Mate. The
boundary between the villages of 'Mate and Makobong is marked
by a line of aloes in which there is a passage referred to in
these proceedings as the Aloe-gate. It was in this vicinity that
accused and the deceased met.
There was evidence that the deceased used a knife to cut
the binding of the thatch on Kahlolo's house. When he got down
from the roof, the deceased and his brother Mojela went off in
the direction of 'Mate Mojela became involved in a fight with
some of the Mothebe family who supported the accused. It was
variously reported by witnesses that the deceased brandishing a
knife attacked Kahlolo's wife Claudia and she threw stones at
him in retaliation. Eventually the deceased disappeared in the
direction of the Aloe-gate. It was also stated by witnesses.
that while he was demolishing the roof, the deceased issued
threats against the accused and other members of his faction.
Other witnesses said that the deceased fell twice from the roof
lending on the hard ground. I suspect that this evidence was
designed to explain or at least alleviate the accused's
responsibility for the severe head injuries sustained by the
deceased. But, as the deceased loft the scene without any visible
signs of injury, I am not prepared to take any notice of this
evidence.
The accused said that when he met the deceased at the Aloe-gate, the latter insulted him and tried to stab him with a knife.
Acting entirely in self defence, the accused struck the deceased
4/       twice with the iron

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twice with the iron bar. It is significant that although
people came on the scene to render assistance to the stricken man
immediately after this incident, the accused did not toll anyone
about the knife, no search for it was made end no knife was ever
found at or near the scene. It is also noted that when the
accused reported himself to the village headman Tumahole Selebalo
(P.W 7) later in the day, he produced both his walking stick and
the iron bar but, made no reference to a knife in the hands of
the deceased.
No one other than the accused and his wife Malerato claimed that the deceased
attacked him with a knife. Some witnesses positively stated
that the deceased had no knife. I am satisfied that the accused
15 not telling the truth in this respect, but, even if his version
was correct and the deceased advanced upon him brandishing a knife
and uttering threats, the accused was not justified in retaliating
to the extent of hitting the deceased twice on the head with such
force as to crack his skull. Ho could have defended himself more
effectively by striking at the knife arm of the deceased. If
this was self defence, and I do not accept that it was, the
accused clearly exceeded the limits permitted by the doctrine
of private defence and is guilty of culpable homicide.
I take the view that the proper decision in this case rests
entirely upon the issue of provocation. In all cases of murder
there is on onus upon the Crown to prove the absence of provocation
The Criminal Law (Homicide Amendment) Proclamation 1959
Section 4 defines provocation as follows.
"(a) The word 'Provocation' means and includes,
except as hereinafter stated, any wrongful
act or insult of such a nature as to be
likely, when done or offered to an ordinary
person or in the presence of an ordinary person
to another person who is under his immediate
care or to whom he stands in a conjugal,
parental, filial or fraternal relation or in
the relation of master or servant, to deprive
him of the power of self-control and to induce
him to assault the person by whom the act or
insult is done or offered
(b)      For the purposes of this section the expression
'an ordinary person' means en ordinary person
of the class of the community to which the accused
belongs
(c)      Where such an act or insult is done or offered
by one person to another or, in the presence
of another, to a person who is under the
immediate cere of that other or to whom the
5/       letter stands

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A lawful act is not provocation to any
person for an assault.
(e)     An act which a person does in consequence
of incitement given by another person in
order to induce him to do the act and thereby
to furnish an excuse for committing en assault
is not provocation to that other person for
an assault.
(f)      An arrest which is unlawful is not necessarily
provocation for an assault but it may be
evidence of provocation to a person who knows
of the illegality "
The Sesotho family law is finely balanced between different
interests. Within the system each man and women is aware of his
rights and obligations and their importance. A man's standing
Within his family may often depend upon his assertion of his
customary rights and the acceptance of his customary obligations.
The man who defies established custom challenges all those who
are affected by his actions. The normal process for the
settlement of disputes include a resort to the courts. But,
where this does not provide immediate and selutary correction of
an abuse of customary law the tensions created may often lead
to violence.
The accused in this case was, as the guardian of his older
brother, in the position of heir to the estate of his father and
grandfather. 'Mamatita was required by law to accept that she
was the pensioner of her grand-sons If she had any genuine
grievances against them arising out of any failure on their
part to make adequate provision for her, she had the fight to
cell a family meeting to consider her complaints. She called
upon her sons to eject the heir from the homestead which was
his by right of succession. The deceased, in complying with
this request and in setting out upon the destruction of Kohlolo's
house created for the accused a situation which called for
immediate response on his part if he were not to lose all credit
within the family It was a direct challenge to his position
and a public denial of his rights as the protector of his elder
brother The action of the deceased placed the accused in a
situation where, as he said "all happiness left him". He could
think only to arm himself with the intention of putting a stop
6/       to a grave wrong

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to a grave wrong. It is just possible that if he had not
met the deceased on the way, he might have been able to claim
official assistance from the Chief or Headman. I do not know
where the deceased was going at the time that he encountered
the accused. But, I accept that when the accused saw him, he
was labouring under a great resentment of a kind, sufficient
to deprive him of his power of self-control. I take the view
that the provocation offered to the accused by the deroofing
of the house of his brother was the principal factor in this
case. It is immaterial whether or not the deceased offered
any additional verbal insults at the time that he met the
accused.
As the Crown have failed to prove that this was a case
in which the accused acted in the absence of provocation, the
accused must be found not guilty of murder. As I reject the
contention that the accused acted in self-defence, I hold that
this was an unlawful killing and I bring in a verdict of
culpable homicide against the accused accordingly.
(Counsel address the Court on sentence. No previous
convictions recorded against the accused).
The accused is sentenced to two years imprisonment suspended
for 3 years on condition that he is not convicted of any offence
of the nature of an assault in which a weapon is used, committed
during the period of the suspension.
JUDGE
9th March, 1981