IN THE HIGH COURT OF LESOTHO In the matter
V MOEKETSI KHOTSO MOKOENA
Delivered by the hen. Mr. Justice M.P. Mofokeng on
the 3rd day of September, 1981.
The accused, Moeketsi Khetso Mokoena, is indicted before
me on three counts, namely:
(i) The murder of Ngaka Moji; (ii) Attempted murder of
Trooper Mahlo, and
(iii) Contravention of Section 3(2) (a) of Act 17 of
1966 (Internal Security) (Arms and Ammunition).
To all of them he has pleaded not guilty.
It is common cause that accused, Selala and Kheabane
were the visitors of one Tlala from the 14th April 1979 until their
about noon on the 18th April 1979 as tax defaulters.
On the morning of the 18th April 1979 the police, under
the command of Lt. Shale, mounted a tax drive in the village not far
the De Beers Diamond Mines. The accused and his two fellow-men
were found not to have paid their basic tax. They were placed under
arrest by Sgt. Mphelle who then requested trooper Mahlo (hereinafter
simply referred to as
- 2 -Mahlo) to escourt them to the charge office.
As three men moved along, Mahlo came behind. They must
have moved leisurely because Mahlo appeared to be reading from a
Suddenly, the word 'halt' was uttered and when Mahlo
looked up, he saw the man infront of him holding a small firearm
hands) and pointing it at him. He took five to six paces
backwards. The man fired and Mahlo almost simulteneously fell down
began to somersault and roll on the ground. when he tried to get
up another shot was fired in his direction and he repeated the
I have just described until he fell into a ditch. when he
got up he ran away. when he managed to look back he saw the same
who had fired at him, grappling with another man. We now know
that this other man was Ngaka Moji (hereinafter referred to as the
deceased). He saw the deceased fell down by the accused and the
latter then stood astride over the former; he was in a bending
with his right hand stretched forward holding the firearm at
a very close range to the body of the deceased. He says he heard the
sound of a firearm twice coming from whore the deceased and the man
were. Thereafter, he saw the man who had fired at the deceased
him and walk to join two of his colleagues who had continued to walk.
when he got to them, they all ran away.
Because Mahlo had raised an alarm villagers and the
police began to chase the three men who were running away. It was
broad day light.
The chase went on for a distance of about two to
two and a half miles. Sgt. Moketa was very swift. He was also
armed. He soon
left many chasers far behind and was gaining on the
three men. He could now discern what they wore. They got into a
and when they
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emerged the third man had disappeared. He chased after
remaining two men. He could notice that they were getting tired. He
a command that they should stop. Only one of them did so.
The other continued to run.
The man who had stopped was ordered to raise his hands
and was eventually arrested. That person so arrested wore a brown
rug, called Scotland in that area, a black pair of
trousers and a brown beret. He was the accused before Court. It is
by the accused that that is the apparel he wore on that
Wednesday; when he was apprehended as a tax defaulter; when he was
by Mahlo; when he ran away and upon his second arrest by
There is disagreement between the Crown's version and
that of the accused in certain respects:
Mahlo, Nchela and Khutlisi all say that the person who
fired firstly at Mahlo and secondly at the deceased is the man who
wore a brown
travelling rug (Scotland), black pair of trousers and a
Sgt. Pekile says that he came chasing after the accused
and the other two men. He came following Sgt. Moketa and when he
accused had. been stopped by Sgt. Moketa he retrieved a
pistol and a plastic paper which turned out to contain bullets of
sizes, on the ground whore they had been put by the accused
on the orders of Sgt. Moketa. He also unloaded the pistol's magazine
and found bullets (of differing sizes) and reloaded it again. when
he left in pursuit of the man who continued to run away (it is
cause he is Selala) he took the pistol (loaded) and the bullets
contained in a plastic with him. He passed the late
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trooper Phakoa. He tried to fire at Selala with the
pistol but it jammed. He eventually got a .303 gun from the late
and fired at Selala. In the process Selala was shot
dead. A knife had been found whore Selala had been seen hiding
he was shot.
The accused says, that the Crown witnesses are terribly
mistaken. It was not the man who wore a brown travelling rug who
Mahlo and who subsequently fired and killed the deceased but
that it was the man who was with him since Saturday, the man who wore
a grey and red (sometimes described as reversible) rug. That man is
Selala. That is also the man from whom a pistol (now exhibit
found. On him only a knife (exhibit 15) was found. He says he was
arrested by Sgt. Moketa and a man called Letsie and certainly
with Sgt. Pekile. The accused is virtually saying that the police
have called witnesses who did not witness any of the events
attested to under oath or as it was put to Crown witness after Crown
"Everything you have told the Court is a figment of
The medical evidence has been admitted. The cause of
death is due to (i) Cardiac Temponade and (ii) Pneumohaemotherax.
two wounds caused by bullets. The first wound, the point
of entry was at the right seventh intercostal space at the front of
body. The path of this bullet merely formed a canal and did not
enter the thoracic cavity but went out below the lower angle of
scapula. The second wound was at "the left seventh intercostal
region along the paravertebral line". There was no
exit of the
bullet. however, the bullet was found in the sixth intercostal
muscles. This bullet entered from the back and
- 5 -
was responsible for the extensive damage. This bullet
was retrieved and handed over to Warrant Officer Letsunyane whose
at the preparatory examination was admitted by the defence
and in addition he gave viva voce evidence at this trial.
Detective Sgt. Mpopo, whose evidence at the preparatory
examination was admitted by the defence and also gave viva voce
this trial took the same bullet from Maseru Police
Headquarters and handed it to the laboratories in Pretoria for
an expert. In addition there were certain exhibits 1
(Pistol); 3 (6 empty cartridges); 4, 5 and 6.
Mr. Schalk Willem Van Willem Van der Merwe is an expert
employed as an examiner of firearms, ammunition and toolmarks
the Forensic Ballistics Section of the South African
Criminal Bureau. He had been trained in the microscopic
identification of fired
bullets and Cartridge cases. He received a
One 7.65 mm Llama pistol (number removed) (Exh.1)
One 7.65 mm Spent bullet (Exh.2)
Six 7.65 mm Fired cartridge cases (Exh.3)
On examination he found that
(i) The pistol was in working condition and also fired
live rounds in it for test purposes.
(ii) On microscopical comparison he found that:
the fired cartridge cases 3(c) i.e. Exh.3 werefired
in the pistol 3(a) i.e. Exh.1.
the spent bullet 3(b) i.e. Exh.2 was fired fromthe
pistol 3(a) i.e. Exh.1.
the doctor's and the ballistics experts' evidence was
- 6 -
The witnesses Nchela and Khutlisi are not police
officers, It is true that Nchela was a friend of the deceased whereas
not except that he also worked at the De Beers Diamond
Mine as a fitter. They both stated in their evidence that they had
seen the accused, and his two fellow-men and yet not once
did they make any attempt to give the facial descriptions of the
they saw under police custody as tax defaulters. They had
seen them on several occasions. If they wished to lie they could so
have done so by giving the accused's facial features. They,
like other witnesses, noted the particular apparels worn by the three
men particularly the man who was very active. Nchela stated that he
took particular notice of this man who was firing at his friend
that he could recognise him and know him. I find nothing wrong with
that. These two witnesses observed the firing from an observer's
seat if I may be permitted to use the expression. It was broad day
light with nothing to obstruct their view. They were very near.
They were sober. (See Rex v. Khetso Moeketsi and Others, CRI/T/37/77
at pp. 26 - 27 dated 30th June, 1978). Remembering that the events
they described took place two years ago, they gave
remarkably well indeed. I did not get the impression that they gave
their evidence with any bias. They endeavoured
to tell the Court the
truth to the best of their ability. This, of course, does not mean
that the Court is saying that there were
no discrepencies on the one
hand between the evidence of these witnesses and that of Mahlo on the
other hand. There are bound to
be found discrepencies but in broad
outline their evidence coincide and to that extent it shews in my
view that the witnesses were
not schooled at all.
- 7 -
The defence contends that there should have been held an
identification parade. Honestly, I do not see what purpose this
served because the accused was not a total stranger to
some of the witnesses and moreover, he does not deny the fact of his
when first Mahlo was fired at and when the deceased was also
fired at. It is also contended that finger prints should have been
taken on exhibit 1. It will be seen shortly that with the view taken
of the evidence this exercise would have yielded nothing favourable
to the accused.
I accept the evidence of Mahlo that the person who
pointed and fired a shot at him was the accused. He stood face to
face with him.
He had seen hew he was dressed, hew he looked like.
He saw the same man fell the deceased to the ground and fire at him
blank range. He is corroberated by Nchela and Khutlisi.
Sgt. Moketa gave his evidence very well indeed. I can
find no reason why this Court should not accept his version of the
What grudge did he have against the accused? None was
suggested. The same approach applies to the evidence of Sgt. Pekile.
them when they say that they found exhibit 1, the pistol
and various sizes of live ammunition in the possession of the
The accused tried to stretch the Court's credulity a bit
too far when he suggested that the pistol came from the dead mam
hew could Selala have been engaged in exchange of firing, he
firing with a pistol and Sgt. Pekile with a .303? There were only two
shots fired with a big firearm. The pistol had jammed. I believe
that evidence. Accused was shewing the Court a scar caused by
stone shortly before he fell
- 8 -
unconcious but when the Court pointed out that there
were in fact three scars parallel to each other he quickly said that
them as he was being kicker1 as he came to.
It is always a risky business to accept the evidence of
identification and I am quite well-aware of it. In this particular
me the events took place during broad day light by
persons who had been seen in the village for a number of days, who a
previously were engaged in an exchange with the police as
to why they should not pay tax. They began to attract attention to
from that moment. One of them was soon to be engaged in a
strange exercise to the people of that area. They were bound. to
a closer look at him and they did. He tried to run away, not
alone, as he wanted the Court to believe, but with his friends. They
were mistaken because they soon found the whole village and the
police force literally on their heels. (Cf. Rex v. Khetso_Moeketsi
and Others (supra) p. 27); Rex v. MoSotho Benjamine Thakalekoala and
Others, CRI/T/26/78 (unreported) dated 8th November 1978).
I have accepted the evidence of the Crown witnesses as
to the identity of the person who fired exhibit 1 on the 18th day of
1979. Accused shifted all the blame on his dead friend,
Selala, perhaps based on the principle that dead men tell no tales.
they do tell tales most of the time. however, the accused was
just plain lying to this Court. It is unbelievable that every-body
who witnessed the events of that day should, for no rhyme or reason,
team against the accused. It is, of course, also true that
persons are prone, sometimes, to telling lies in Court in the belief
that a falsehood is better than the truth.
- 9 -
But for a person of this accused's intelligence to tell
the Court that he was running in his own direction and that the other
also, and yet they were all going in the same direction, was
plain lying. Three men had been together for a number of clays,
similar canvass bags, arrested at the same time, argued
with the police about tax, did and said nothing when persons were
at, ran away when the killer arrived and later two of
them almost arrested together and yet the accused says that each was
his own direction? And yet for a distance of more than two
miles they all ran together? This was a deliberate lie on the part of
the accused trying to avoid a simple and unavoidable fact that they
all of them acted jointly. Their actions speak aloud in that
respect. It is a deliberate attempt on the part of the accused that
the Court should depart from acting with reasonableness. The
refuses to depart from performing its duty as though devoid of common
sense. The evidence of the accused is palpably false
reasonable doubt and I reject it.
The evidence before me thus satisfies me that the person
who fired at Mahlo twice and subsequently shot and killed the
the accused before Court. And the unchallenged expert's
evidence, which I unhastatingly accept, proves that the bullet found
the body of the deceased was fired from the firearm found in
the possession of the accused. The undisputed medical evidence
established that both gun shot wounds contributed towards the
deceased's death. That the two wounds were caused by two bullets
from different angles one from the front and the other from the
back is not disputed.
The witnesses are all agreed that a shot was fired at
- 10 -
the deceased who came rushing to the accused crying that
he was being killed. At that stage the deceased was on his way to
He had done absolutely nothing to the accused. There had been
no provocation whatever on the part of the deceased. There was then
a struggle. The deceased was obviously still alive. In my view the
probabilities are extremely high that the wound whose entry
infront had been inflicted. Then he was violently felled to a hard
surface. At point blank range, the accused fired more shots
direction of his (deceased's) upper part of the body, the most
vulnerable part of the body. The probabilities favour the
one of these bullets inflicted a wound whose entry was at the back.
(Sgt. Ntaitsane found four (4) empty shells next to
the body of the
deceased). At that moment, the deceased posed no threat to the
accused. Instead, he lay helpless on the ground, while
being raised. Accused, now consumed with the desire to cause the
death of the deceased, fired at the region of his chest
whore he must
have known deceased's most vital organs are situated and he would
definitely die. Accused is no simpleton. He was
sober. He clearly
knew what he was doing. He now desired the death of the deceased and
that accomplished he went to join his friends
and they ran away.
There is only one conclusion to which this Court must
come to and that is that the dolus of the accused was directus. (Cf.
and__Others_,_ 1980(1) LLR. 57 at p. 60). He is
therefore found guilty of the crime of murder which the Crown has
beyond reasonable doubt.
There is no doubt in my mind that the accused fired at
Mahlo twice with a clear intention of killing him and is thus guilty
crime of attempted murder. Two used shells.
were found about ten (10) paces away from whore the
deceased lay which would be the spot whore accused stood as he fired
at him (Mahlo).
Accused was found in possession of rounds of ammunition.
I accept the evidence of Sgts. Moketa and Pekile and reject that of
who merely substituted the name of the dead man Selala
for that of himself. It has been proved beyond reasonable doubt that
accused is guilty of Contravening the provisions of Section 3(2)
(a) of Act 17 of 1966 (Internal Security) (Arms and Ammunition).
My assessors unanimously agree with all my findings.
I wish to record my appreciation to both counsel for the
thorough manner in which they prepared their presentation and
this matter. It made the task of the Court so must
day of September, 1981.
For the Crown : Mr. E. Muguluma For the Defence :
Mr. J.S. Makhene
EXISTENCE OR OTHERWISE OF EXTENUATING CIRCUMSTANCES.
The accused has been found guilty of the murder of the
deceased. In terms of Section 290(1) of the Criminal Procedure and
Proclamation 59 of 1938 the Court is enjoined to inquire
whether extenuating circumstances exist in this particular case.
Phakoe v Rex, C. of A, (CRI) 10/1966 dated 30th
November 1966). In other words, the Court has to pass a moral
judgment and in doing
so has to take into consideration the standard
of behaviour of an ordinary person of the class of the community to
which the accused
belongs. The Court is also not exclusively
confined to the evidence or whatever the accused chooses to say at
this stage. If, looking
at the whole of the evidence before it,
there is a fact or facts favourable to the accused, the Court is
entitled to take such fact
or facts into consideration in deciding
whether extenuating circumstances exist. (Cf. Rex v. Malefetsane
Potlaki. (CRI/T/57/79 (unreported)
at p. 43 dated 15th June 1978).
I have closely scanned the whole of the evidence before
me. The difficulty I have is that the accused was not frank with the
and he has elected not to give evidence at this stage of the
proceedings. however, despite that falsehood, I still have to
to fathom and see whether from the accused's actions at the
relevant time I can say his killing of the deceased was morally (not
legally) justified. The test is subjective. (Cf. Rex v. Malefetsane
Potlaki (supra) p. 40). The accused was armed with a lethal
a pistol. It was fully loaded. He knew that it was in good working
order. If by any stretch of imagination he had been
in doubt about
that when he left Tlala's home for the police station that morning,
he was soon to be assured of that fact when several
shots were fired
- 2 -
(In any event it is difficult to believe that the
accused would carry about a firearm which was not in good working
order. when, he
therefore, fired at the deceased, who had offered no
provocation to him (or any of his colleagues for that matter) he knew
the danger of what he was doing. The deceased has
posed no threat or danger to him. He had known of his (deceased's)
their immediate vicinity. Perhaps it might be argued
that when he saw the deceased he thought he (deceased) was coming to
of Mahlo. But then Mahlo had ran away and, moreover, the
deceased had not spoken a word to the accused. Evidence points the
way. It is the accused who spoke to the deceased and said he
should stop but the latter continued to walk on. He was then fired
at. He was hit, the bullet entering through the front of the chest.
Deceased staggered or rushed forward uttering words indicative
he had been hit by a bullet fired at him by the accused. Accused
then swayed him to the left and to the right and with great
fell him to a hard surface. At this stage the accused must have
realised that the deceased was not armed nor was he in a
fight. But when the deceased lay prostrate and helpless the accused
must now have realised that the deceased was definitely
not armed nor
fighting. Notwithstanding, the accused, at point blank range, pumped
several bullets in the direction of the vital
part of the deceased's
body. One such bullet entered the chest Cavity through the back and
caused great damage. What excuse was
there for the accused to have
fired several bullets at the person of a man who lay helpless and
defenceless? The onus is on the accused
on a balance of
probabilities. The ordinary person of the class of the community
whore the accused lives, a man of accused's education,
would have known that the use of a pistol on the person
of another is a dangerous exercise and would not have shot at a
defenceless man who lay on the ground unless the sole
aim was to make sure that the victim would really be stone dead.
The position of the accused becomes even more serious
when it is remembered that his sole reason, as he triumphantly said
it in evidence
during the trial was that he wanted to escape from
custody. In doing so he deliberately murdered a person who, in no
way, was connected
with his arrest. In my view, he also murdered the
deceased thinking that he was the closest person to the firing at
Mahlo and hence
might give a good description of him. however, even
before a single shot was fired at the deceased, there were already
of eyes focussed on him.
The shots which were fired at the deceased, while he lay
prostrate and helpless and accused stood astride over him, were fired
an "actual desire to kill the deceased". (Cf.
Motlatsi Ntsukunyane v. Rex. C. of A. CRI/A/1/1967 (unreported) dated
September, 1967). The circumstances surrounding the murder of
the deceased were certainly of an aggravating nature and the
of the accused is extreme. I therefore come to the
conclusion that the accused has failed to discharge the onus cast
There is an increase of the use of firearms in this
Kingdom. The Courts have warned that unless this manace abated these
who use firearms
at the least pretext and for no lawful excuse will
be visited with heavy sentences. Police Officers should feel fret to
their affairs. In this particular case a police officer was
threatened with death by shooting and an ordinary citizen was
these who take the lives of their fellow
human-beings as though valueless must be prepared to
accept the heavy penalties which the Courts will meet out to them.
takes the law into his hands, and thereby threaten the
due process of the law, will be dealt with severely by the Courts.
Phaloane v. Rex, (CRI) No. 7 of C. of A. 1980 at p. 22
dated 3rd July, 1981). In that case also a defenceless person had
dead and the President of the Court, Maisels, said
"If conduct of the nature with which the Court
isconcerned in the present case were not to be punishedwith
the utmost sevenity there would be chaos in thecountry and the
respect of the public and the policefor the whole system of
justice would disappear. Thecountry would lapse into anarchy
with persons beingtempted to take the law into their own hands.
It isI consider the Court's duty to demonstrate inunmistakable
fashion that conduct such as that of whichthe appellant has been
found guilty cannot and willnot be tolerated in this Country ".
These remarks, with which I entirely agree, are opposite
to the present case before me.
I have taken into consideration what accused's counsel
has put before me by way of mitigating factors. The assessors
agree with sentences that follow:
On Count II: This is a serious offence committed
police officer who was performing his duties. He gave
the accused no cause to attempt to murder him. Government Officials
be killed or their lives threatened while performing their
lawful duties. This kind of an offence is regarded very seriously.
least possible sentence I can impose on the accused is one of 5
(Five) years' imprisonment.
On Count III: Possession of ammunition without the
necessary-permit or certificate constitutes one of the most serious
It must be totally discouraged by visiting it with heavy
sentence allowed by law. This calls for the imposition
of the severest sentence. Accused is sentenced to one
(1) year's imprisonment.
On Count Is Since the Court has found no extenuating
circumstances there is only one sentence which it must
now pass. In terms of Section 292 of Criminal Procedure and Evidence
(supra) the accused is ordered to be returned to custody
and be hung by the neck until he is dead.
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