IN THE HIGH COURT OF LESOTHO
In the matter of :
l.NTSOEAMOKOTI MOHAU PITSO
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 10th day of November 1982
The two accused persons whom I shall call Pitso(Al)
and Tjoloane(A2) appear before me on an amended indictment
that contains two counts one of culpable homicide and one
of assault with intent to do grievous bodily harm. The
particulars state in effect that they jointly and unlawfully
caused the death of Leoba Joala and that they jointly and
unlawfully assaulted Tsehla Mohobane with intent to cause
him grievous bodily harm, on or about the 7th November 1981
at or near Ha Horoho in the district of Butha Buthe.
A1 pleaded guilty to the culpable homicide of Leoba
(the deceased) but not guilty to assault with intent to do
grievous bodily harm to Tsehla Mohobane, and A2 pleaded not
guilty to the culpable homicide of the deceased but guilty
of assault with intent to do grievous bodily harm to Tsehla.
Crown counsel was disposed to accept Pitso's and
Tjoloane's pleas of not guilty but left the matter to the
Court. Mr. Matsau for Pitso (A1) and Mr. G.N. Mofolo for
Tjoloane (A2), admitted all the evidence as it appears on
the preparatory examination records. Two preparatory
examinations were held because Pitso(A1) appears to have
absconded or could not be found when the preparatory
examination against Tjoloane had started. A1 has been in
custody for 6 months and A2 for 12 months.
The Court was reluctant to accept the pleas of not
guilty because there were at least two items of evidence
deposed to by witnesses (whose evidence the defence accepted)
that prima facie shows, or tends to show that the accused
persons had a common purpose. We held that they had a case
to answer but they elected, as they are by law so entitled,
to keep silent.
After considering the evidence again the items that
emerge against the accused are :
That instead of taking the directions to their
own homes after the drinking party, they took the
direction deceased and his companions had taken.
That A1 told a witness upon whom he and A2 descended
called (Mofihli Mabusane) "Let us go man we will
ultimately find them".
The accused persons, as I said, elected to keep
silent and the question to be answered is whether what has
emerged is sufficient to decide conclusively that there was
On (1) the time was just after dusk and there was
evidence that at the village of the deceased there was another-
drinking party. It is therefore possible that the two accused
had taken this direction not with the joint intention of
assaulting the deceased and or his companions but to continue
drinking at another place.
On (2) there is evidence that A1 and A2 either hid
their blankets or had lost them when following the direction
taken by the deceased and Tsehla but it is not clear from
the evidence what happened exactly. The words "let us go man
we will ultimately find them" may have referred to the
blankets or to the deceased and his companions. It is not
abundantly clear to me that they necessarily referred to the
deceased and his companions though my assessors think it must
The deceased had, in the party he left, insulted a
number of persons present, and threatened to use his knife
to kill. He was not addressing anyone in particular and
seemed the worst for drink. If any of those present(and A1
and A2 were) wanted to punish him, there was no motive or
cause for anyone to punish Tsehla for he did not in any way
associate himself with the words of the deceased.
I think the evidence falls short of proving common
purpose with the result that I enter a verdict of guilty
(as pleaded) by A1 on count 1, guilty (as pleaded) by A2 on
count 2, and a verdict that Al is not guilty on count 2
and A2 is not guilty on count 1. My assessors finally
agreed with this Judgment.
A1 : (Count I) - 6 years imprisonment of which 3 years
are suspended for 3 years.
A2 : (Count II) - 4 years imprisonment of which 2½
years are suspended for 3 years.
The suspension will be on condition that neither of
the accused be convicted of an offence involving violence
to the person in which a sentence of more than six months
imprisonment is imposed.
My assessors agree.
10th November, 1982
For Crown : Mr: Kabatsi
For Accused 1 : Mr. Matsau
For Accused 2 : Adv. G.N. Mofolo
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