CRI/T/33/80
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
v
SETLABOCHA MONYANE
JUDGMENT
Delivered 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

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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

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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

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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,

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we must be, before we convict. We have to, reluctantly, give
accused the benefit of the doubt and he is accordingly discharged
CHIEF JUSTICE
29th October, 1981
For Crown : Mr, Kabatsi
For Defence: Adv. G.N.Mofolo