CRI/T/33/80IN THE HIGH COURT OF LESOTHO In the matter of :REX vSETLABOCHA MONYANEJUDGMENTDelivered by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 29th day of October 1981
The accused Monyane is indicted on a charge of murdering Sekana Sethinyane on or about 26th April 1980 at or near Mafolaneng in the district of Mokhotlong.The accused denied the charge.A stockfair party at the home of Masamuele with plenty of drink food and music, which had lasted the whole night, was drawing to a close at sunrise. An altercation developed between the deceased and one Morapeli. Crown witnesses Masamuele(PW4- who was the hostess) Nkukeng (PW1) and Matailane(P¥3) say that this fight arose when the deceased and Nkukeng were about to leave the party and it was suspected that Morapeli was sitting on Nkukeng's hat which the latter could not find. Nkukeng(PWl) is the deceased's elder brother. The deceased told Morapeli to stand up so that the hat could be picked up. When Morapeli delayed or refused to obey, the deceased lifted him up and manhandled him and in the ensuing fight the deceased got the better of Morapeli. Masamuele says the deceased sat on Morapeli and was chocking him. The accused on the other hand says that the cause of this fight was not the hat but a remark by Morapeli addressed to the deceased, that Nkukeng, who was then asleep with his head close by, should not be awakened because he will vomit on him. If the matter is important, which I do not think it is, I prefer the Crown witnesses evidence on this issue.The above three witnesses add that the combatants were separated. The deceased went and poured into his "scale" some/beer
-2-beer from a tin at the corner of the room sat and drank it, then poured himself another, stood up and walked with the scale across the room towards the door.According to Nkukeng (PWl) after the first fight between the deceased and Morapeli was over the accused said to Morapeli "give me that thing". Nkukeng says Morapeli passed something but he did not see what. The accused, with a blanket covering his hands, was standing by the door. Accused then struck with his hand at deceased's abdomen. Deceased uttered one sentence only viz: "What are you doing to me" and then supported himself on accused. Accused pushed the deceased away. Deceased fell outside bleeding from the abdomen. The witness Nkukeng says he asked accused "What has he (meaning deceased) done to you? Where is the knife?" Accused allegedly said "Here it is". It was in his right hand, open, but he did not surrender it. It is accepted that the cause of death was internal bleeding.Matailane Molise (PW3) testifies that after the deceased and Morapeli were separated, the latter sat on a stoep in the house whilst deceased went to fetch a drink from the corner. Matailane says he saw the accused take a knife from Morapeli. He stood near the door. The deceased, with a scale in his hand, walked towards the door. There accused held deceased by his left hand and pulled him. Deceased protested that his fight was with Morapeli, not the accused. The witness adds that the accused then stabbed the deceased with a knife in the stomach. Deceased fell outside and died. The witness ran to the deceased's father in law Lejeka (PW2) who lived nearby (70 paces pointed) and informed him of what happened and they returned to the scene together.Masamuele (PW4) says (in chief) that after the first fight deceased got himself a drink and walked across to the door to get out. Accused was next to the door and he pulled deceased towards him by the hand. She heard deceased ask accused "What is the matter" and saw deceased fall backwards at the outside of the door. She then heard Matieho (another witness) say "What happened Sekana is bleeding". In cross-examination she added, rather reluctantly, that she saw Morapeli pass a knife to the accused earlier.Matieho Chaka (PW5) says that she left the house where the party was being held to take her child to sleep in another/place
—3—place and on her return she saw accused and deceased grappling at the door. Accused was holding a knife. Deceased fell and stood up immediately and asked accused: "What are you doing to me?" to which accused replied "It is not me, it is this one" pointing in the direction of some person (not named but presumably Morapeli) inside the house. Deceased gripped accused's blanket and accused pulled himself backwards. Deceased fell.Lejeka (PW2) testifies that he was at home near where the party was being held when Matailane (PW3) came and told him that Morapeli had killed the deceased. He went to the place and found many people. He asked Morapeli if it was true that he killed the deceased and Morapeli denied this. When asked who did it Morapeli demured. Accused was at the door and he too was asked who killed the deceased. Accused said it was Morapeli. Morapeli however, according to this witness, then said it was the accused who did it. Someone apparently said that the knife was with the accused. When Lejeka asked accused if this was so he admitted it. He produced the knife (now clasped) and handed it to Lejeka. Lejeka noticed blood at the door and also on the accused's blankets and inquired from him how it came about. The accused explained that deceased held on to him and thus his blankets became soiled. Lejeka then apprehended three persons: Morapeli, the accused, and a "stranger" to the village who was inside the house. I am satisfied that this "stranger" was in no way involved in this homicide.The prosecution produced three other witnesses Sefofane Maleka (PW6), Leatla Molisane (PW7), and Lephele Lethunya(PW8) to prove that there was serious friction, if not deadly enmity, between accused and deceased. Leatla (PW7) who was chieftainess Maserame's bugle at the village where deceased lived says that some time in July of the previous year (that would be 1979) the accused came to him and complained that deceased had stolen his bridle. The bugle Leatla continues by saying that he investigated the accused's complaint, confronted them with each other, and having found the accused's allegations unsubstantiated, dismissed the complaint. Accused was not satisfied with this finding, told the bugle so, and threatened that he will kill deceased. Sometime earlier, the accused had complained to the deceased's room mate Sefofane (PW6) about the bridle and the witness advised the accused to lay a charge with the police to which accused allegedly replied that he will not do so but would rather kill the deceased. The witness says that the threat perturbed him and/he reported
-4-he reported it to the bugle Leatla who said he had already heard about the matter and was going to investigate. Leatla further testifies that in February of the following year (that would be 1980) accused again complained that deceased had deliberately let his cattle graze on his (accused's) land and though it was night time, he (accused) recognised deceased by his voice when the latter was uttering insults. Accused told Leatla that if he did not kill deceased, deceased was sure to kill him. The bugle Leatla questioned deceased who denied the trespass allegations. Leatla appointed a day to investigate the second complaint. On the appointed day accused failed to turn up. The bugle says that accused's utterances against deceased worried him and he warned him on both occasions. In fact, the bugle added, accused had once threatened to kill another person, and he took accused to the police. The police took no action. He did not refer these particular threats by accused to the police, but on the day of that same party accused had invited him to come to Masarauele for the stockfair, but he, the bugle, remarked that that was near deceased's house, that deceased was very likely to attend, and that he refuses to accompany the accused to "night stockfairs" where there might be trouble. Accused allegedly replied that he will be very pleased if deceased attended because if he did he will kill him. A hanger on, or spectator, at the bugle's administrative headquarters "court", Lephele (PW8) confirms both complaints by the accused, the bugle's investigations, and the threats uttered by the accused against the deceased.Now the accused denies all this latter part of the prosecution evidence as a complete fabrication. He says he never charged deceased with stealing his bridle, nor charged him with cattle trespass, and denied he ever uttered threats against him. He failed to explain, however, why three witnesses, all of whom I found to be satisfactory in every respect, should come to court to purjer themselves, but as "proof" of their fabrication he maintains that he is a subject of headman Henry of another village and he would have lodged his complaints against deceased, if he had any, to his own headman, not to the witness Leatla. But this explanation was devoid of candour because at the time of the incidents accused did not live at his home village but in tents for road workers in the vicinity of deceased's headman where Leatla was in charge. Nothing in accused's demeanour shows anything in his favour. We think that he is a man who has not the slightest respect for the truth./With regard
-5-With regard to the events at the stockfair the accused gives the Court a very long story indeed very much at variance with the evidence of the three Crown witnesses whose testimony I have summarised. The gist of it was that the deceased and Morapeli fought at the house during which he saw Morapeli stab the deceased with a knife. He (and others including Matailane) intervened to pull them apart but it was difficult. He says he then attempted to force the knife out from the hand of Morapeli who resisted violently but after a long struggle, he succeeded to wrench it, still open, from Morapeli injuring his own finger in the process. Whilst this was in progress, deceased after he was stabbed by Morapeli, stood up and gripped him when he was still tackling Morapeli over the knife. This explains the blood on his own blanket and another blanket he had borrowed from Masamuele. He says he raised an alarm addressing the people "You men I have asked for help, someone is fighting with a knife, what is your intention, here is the knife".None of the Crown witnesses supports the accused on this and we think here too, he is lying.However the major doubt created by the evidence of Lejeka cannot be removed. We must remember that the Crown witnesses had been drinking all night. Despite their protestations in Court no one knows for certain the state of their sobriety, whilst Lejeka was definitely sober. He says Matailane reported to him that it was Morapeli who had stabbed deceased, that when he went to the scene to investigate, Nkukeng who was present at the time and who later says that it was accused who did the stabbing did not name the accused at the crucial moment, nor did Masamuele, nor did any other person from the large crowd that was present. To be sure they all said that accused had possession of the knife, but none said accused inflicted the fatal wound, and the accused and Morapeli were, according to Lejeka, accusing each other which necessitated tying them both.Morapeli himself did not give evidence at the trial so we do not know what kind of person he is. He was not found although he gave evidence at the preparatory examination. That evidence is most unsatisfactory in any event and cannot in any way clinch the case in favour of the Crown.Of course there is suspicion that it was indeed accused who had fatally stabbed deceased but we are not 100% sure, as/we must be,
-6-we must be, before we convict. We have to, reluctantly, give accused the benefit of the doubt and he is accordingly dischargedCHIEF JUSTICE 29th October, 1981For Crown : Mr, KabatsiFor Defence: Adv. G.N.Mofolo