IN THE HIGH COURT OF LESOTHO
In the matter of :
Delivered by the Hon. Mr. Justice M.P. Mofokeng
on the 16th day of September. 1982.
The accused is charged with the crime of murder, it
being alleged that on the 20th day of September 1981 he
intentionally killed one Tseliso Letela (hereinafter
referred to as the deceased). The accused pleaded not guilty.
It was admitted, on behalf of the accused and accepted
by the Crown.
that the deposition of Dr. Park at the preparatory
examination, together with the post-mortem report
and the cause of death be evidence at this trial.
that it was the accused who fired the gun (exhibit
that caused the injuries found on the arm of the
deceased as deposed to by doctor Park in his
that the gun (exhibit 1) is the property of the
that the identity of the deceased is accepted and
consequently the depositions of Motuba Molisa are
evidence at this trial.
The evidence of the Crown in a nutshell is : At about
sunset, on the date already mentioned, Motsokotsa Ramotho (PW.
(d) that the identity of the deceased is accepted
and consequently the depositions of Motuba
Molisa are evidence at this trial .
The evidence of the Crown in a nutshell is : At
about sunset, on the date already mentioned, Motsokotsa
Ramotho (P.W.1) arrived at the house of Ntsane Mokoteli
(D.W.2) where hops was being sold. He entered the house.
He was shortly joined by the deceased. They drank. There
were also many other people who came for the same purpose.
At dusk they went out carrying their scales of hops.
They left behind many people who were drinking and there
was blaring type of disco music usually played at such
places. Incidentally, Ntsane Mokoteli says that the
drinking people were very quiet. To continue, Motsokotsa
Ramotho and deceased stood in the forecourt but near the
cattle kraal. There were two people sleeping on the
hardground who, apparently, had started their drinking
session, too early.
While standing there and enjoying their hops, accused
arrived. He inquired as to who they were. There was no
reply. He asked again directing his inquiry to Motsokotsa
Ramotho. He obliged. At that stage it would seem the
deceased was now standing behind Motsokotsa Ramotho, for
the accused said to him he should stand aside so that he
could shoot the deceased. Motsokotsa Ramotho did not move
because he was petrified with fear. The accused then
angrily said to him : "Your mother's vagina. I say you
should stand aside so that I should shoot this person."
Still he did not move; instead the deceased ran and a
shot rang as the deceased was about to take a turn towards
the back of the house. I believe this is the time
deceased left his bayonet and a hat which were only
fetched the following morning by Qhabaphosela Rakabaele
The witness went to Ntsane Mokoteli to make a report.
The latter went out and found nobody behind the house.
This was not surprising because both the deceased and
the accused disappeared behind the house and must have
run away, each for a different reason.
Previously the accused had complained to Motsokotsa
Ramotho that the deceased was in love with his wife.
The latter said he knew about this love affair. But
it was put to him that he was not telling the truth. No
such a complaint had ever been made to him. However,
Motsokotsa Ramotho was the only person who knew about
this love affair. The other witnesses knew nothing
The accused went to his home and left the gun
(exhibit 1) and the spent cartridge (exhibit 3) and
passed on to his father. He made a report. He then
left for Setsoafa Chechela (P.W.5) who is his cousin,
and there volunteered an explanation to him and said
that he had shot the deceased because the latter was in
love with his present wife.
It should be stated here that it is not disputed that
the deceased was in love with accused's wife by the name
of 'Mampho. Crown witnesses, including the deceased's
own father (P.W.3) agree with this.
Accused went to Sefikeng police post and handed
exhibit 4. The following day detective Ntlaloe (P.W.7)
left with the accused and at the accused's home was
handed exhibit.1. He examined the forecourt for any
signs of a struggle. He saw none. He examined the door
but it was still intacked. Inside the house there were no
signs that any fight had taken place. Every item had been
neatly put in its place and with neatness. Thereafter
accused then took him to where he said the fight took place.
This was at the rocks. After examining the place and its
vicinity he found no blood. He informed the accused who
then said he had lied. He then took the witness to Seana's
place which is about 300 - 400 yards from the deceased
father's house. This he said is where the fight took place.
In the presence of the accused, Motsokotsa Ramotho, pointed
a spot near the kraal where he stood with the deceased when
the accused arrived, but could not point the exact spot
where the deceased was shot.
The accused gave evidence under oath simply stated
that all the Crown witnesses who told the Court that he had
said he killed the deceased because he was in love with his
wife, 'Manthabiseng, were being untruthfull. All that
happened is that at about midnight he was woken up by the
presence of two people in house who had kicked opened the
door. They ran out when they saw that he had got up. He
took his gun and chased after them. His aim was only to
identify them. They ran on the edge of the cliffs until he
was close to them. They were near a rock. One on each
side. He inquired as to what their intention was. There
was no reply. He then noticed that the deceased held a
stone in his right hand and a sword in his left hand. The
other person held a stick. The deceased threw a stone at
him and when the deceased wanted to get hold of the sword
with his right hand he shot the left arm. Meanwhile the
other person was trying to gather stones from the ground.
After the shooting they ran away. But to Motsokotsa
Ramotho it was put to him that accused would say to the
Court this is how it came about that he fired a shot at
the deceased :
"It was at the time you (Motsokotsa) threw stones
at him (accused) that he shot the deceased on the
Answer : No.
It was after this that deceased said to you :
"He has shot me in the left arm."
Answer : No.
It was at this stage that you ran in the direction
of Seana Hoeane." (This is apparently where
Ntsane Mokoteli also lived and worked).
Accused said he had shot the deceased because the latter
and Motsokotsa Ramotho had fought with him.
He said that the deceased had been in love with his
wife, 'Mampho. He had caught them inside the house and had
made such noise that the whole village woke up and came
to the scene. The deceased was reprimanded by his father
(P.W.3). He then expelled 'Mampho. This happened about
two to three years ago. Now he says the deceased had an
affair with his present wife. They even left together for
Maseru. He came to Maseru and found his wife working and
not living with the deceased. He subsequently lived with
her at home and was living with her when the present
Accused called Ntsane Mokoteli to give evidence on his
behalf. Ntsane Mokoteli told the Court that the deceased
and Motsokotsa Ramotho were at his house drinking hops.
After a time they left. They did not hold any scales of
hops when they left. At about 3 a.m. Motsokotsa Ramotho
entered his house and made a report. Since the previous
evening there had been no noise in his house. People
drank in silence. Immediately after the report he went out.
There was nobody. Under cross-examination he conceded that
he had been playing records and the sound of music was very
loud indeed. He said that Motsokotsa Ramotho had said to
him that the accused was chasing him with a gun. He was
then shown a sworn statement he had made to the police on
the 21st September 1981 and signed by him. He admitted
his signature thereon and that it had been read back to
him. In it he had said that the accused "has chased
Tseliso with a gun behind my house near the fence."
The Crown witnesses were candid and I detected no sign
of unfairness or animosity towards the accused nor were
they biased in favour of the deceased. I particularly
observed Motsokotsa Ramotho when he was confronted with the
version that the accused would later tell the Court. He
appeared most surprised and his denials were equally-
emphatic. The accused, himself, conceded that he could
think of no reason why his own relation, Setsoafa Chechela
(P.W.5), would come and tell this Court a lie about him if
he said the accused had told him that he had shot the
deceased because the latter was in love with his wife. The
accused first lied to the detective about the place where
the shooting took place. The place he lied about was at
the rocks where he said the deceased and Motsokotsa Ramotho
threw stones at him. He then took the detective almost
behind Ntsane Mokoteli's (Seana's) house. He did not dispute
the various spots pointed out by Motsokotsa Ramotho such
as where they stood with deceased when accused arrived.
Accused began to lie deliberately about being assaulted by
the detective but conceded that he never instructed his
counsel about it.
In my view there was never any throwing of stones at
the spot where the rocks are situated. Accused's counsel,
very fairly, conceded this. Accused shot the deceased in
the manner deposed to by Motsokotsa Ramotho.
Now the accused does not drink, but he chose to go to
a drinking place. The reason seems obvious. He knew that
the deceased had arrived and as a lover of hops he would
get him there. He would go there under cover of darkness
but the urge to revenge was too much. He could not wait.
He coldly shot the deceased, not caring whether he caused
his immediate death or not* His gun (a shotgun to be
precise) was loaded with a cartridge which is used in
killing big game. I do not think man can be classified
as such. His actions were those of a man who had hunted
his man and had got him cornered. If a man says he wishes
to shoot another what does he think will happen to the
man he has caused an injury? A gun, whatever its make,
is a lethal weapon. Accused told Motsokotsa Ramotho to
step aside as he wished to shoot the deceased. When his
order was not obeyed he issued insults. He showed
determination to seriously injure the deceased. Moreover,
he took two cartridges and as he said, under oath, if he
had missed with the first one he would have used the second.
After the shooting he says he was felt satisfied.
All the actions of the accused point to the fact that
he had the intention to kill the deceased. When the accused
shot the deceased he had the desire to kill him. There
was no sudden provocation as governed by the Criminal Law
(Homicide Amendment) Proclamation 1959. (See Rex v. Lira
Moleleki, 1960(2) L.L.R. 441 at 452). If there had been
any provocation at all, the accused had had ample time to
cool off. The accused, therefore, clearly displayed an
intention to kill the deceased.
In the result the accused is found guilty of the crime
My assessors agree with the findings of the Court.
For the Crown :Mr. Kalamanathan
For the Defence :Mr. Matsau
The onus is on the accused of establishing the
existence of extenuating circumstances. This is on a
balance of probabilities. The Test to be applied is
The accused may lead evidence at this stage
specifically directed at this inquiry. But in many cases
the accused chooses not to do so and argues that the
evidence at the trial also discloses extenuating
circumstances. Accused has chosen the latter course.
He is perfectly entitled to do so.
There is evidence that the deceased had been in love
with the accused's wife 'Mampho. There is also evidence,
however slender, that he was also in love with accused's
present wife. Accused had not caught the deceased with
his present wife but the suspicion was there. He had
made a report about it to Motsokotsa Ramotho. To his cousin
Chechela he had said that he had shot the deceased because
the latter was in love with his wife. He foolishly denied
these reports but they were true. That is what was
going on in the accused's mind. He believed that the
deceased was determined to break his family life. He had
to destroy the deceased. That is why I referred to the
killing as a revenge killing. The deceased had done and
doing the accused great injustice by breaking up his
family in such a shameful manner,
The dolus in this case was eventualis and not directua.
My assessors and I find that there are therefore
Courts do not countenance self-help for that will lead
to chaos. You must be severely punished.
Taking your personal circumstances and the general
disregard to human life in this country my assessors and
I have agreed that your sentence shall be 10 years'
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