IN THE HIGH COURT OF LESOTHO In the matter
V LETSOSA HANYANE
Delivered by the Hon, Mr, Justice M.P. Mofokeng on
the 25th day of February. 1983.
The accused is charged with the murder of one Thulo
Matseletsele (hereinafter referred to as the deceased).
On the evening of the 28th August 1981 the deceased and
'Mamaipato (P.W.2) were in the house of 'Maphiela where liquor was
There were other people also present drinking and among
them was one Phohleli.. Between the deceased and 'Mamaipato only the
drank. He had purchased six cans of beer. However, the
deceased had been to this house prior to his coming there with
The two were lovers
As the two lovers were leaving and were at the door,
'Mamaipato met Phohleli who asked her the whereabouts of one
their short conversation was over
apparently the deceased took offence at that and
enquired as to who she was talking to and upon being informed, he
assaulted her by.
hitting her with his open hand. 'Mamaipato then
went back into the house and made a report to 'Maphiela. The deceased
the house and while 'Maphiela spoke to him, 'Mamaipato left
for her house. The deceased
immediately followed her.
Shortly they arrived at 'Mamaipato's house, apparently
there was a change of heart for he requested her to accompany him to
home. When they arrived there she was already asleep,
i.e. 'Maletsatsi. However, upon finding out who they were, and with
promise of payment of debt due to her by the deceased, she
opened. The deceased was drunk and noisy. He inquired as to the
of 'Maletsatsi's mother. Just after they made their entry
into the house the accused entered and 'Maletsatsi was under the
that he was in their company. Because of the noise the
deceased made, he was ordered to go out of the house lest he awakened
children. It was in . this house that the accused was heard to
ask the deceased whether he was still boastful or proud whereupon
deceased replied in the affirmative.
'Mamaipato and the deceased left and the deceased came
behind them. They got into the street and still the accused followed
He, the accused, then overtook them. The deceased at this stage
was staggering somewhat. When the accused was a distance of ten
fifteeen paces he began to fire in their direction. 'Mamaipato
appraised the deceased of this but the latter just said there
not being fired at and continued to walk. 'Mamaipato, perhaps with
fright, sat down. With the third shot the deceased fell.
clearly what happened because of the light emanating from 'Mamotoa's
(D.W.3)'s house. There was an electric globe which was
to the outside of the house. She made reports, first to 'Maphiela and
later to 'Maletsatsi. In the morning she made
a report to her sister
Under cross-examination she denied that there had been a
fight between herself and the deceased. She denied that
the accused intervened inside the house when there was a
fight between herself and the deceased precisely because no such a
took place. She denied that the accused pushed the deceased.
She denied that the accused had chased the deceased outside the house
of 'Maletsatsi. She saw the deceased stagger three times and fall
down. She was still sitting down. The firing was in quick
She could not remember if more shots were fired as she
was frightened. She also stated that she did not know that 'Mamotoa's
was a policeman as she had just arrived in that area.
However, she knew that there were dogs at Mamotoa's home. She
that there was a headman hot far from 'Maletsatsi's place
but she was afraid to go there as it was at night and was afraid that
man who had fired at the deceased might also fire at her. She
also stated that she could not go and inform the deceased's people
they had previously been reprimanded about their love affair.
Whe she saw the body of the deceased the following day,
she saw the key on the left hand and on the right hand he held a
was brown and it was a clasped knife. It was exhibit
1. He had taken it out at 'Mapheila's when they had had a quarrel.
He had put it back in his pocket still opened. How it came
to be in
his hand she did not know. She thought he might have taken it out
during the firing. He had had his hands in his pockets.
She could not
remember when he took them out.
It was then put to her, that the accused had pushed the
deceased outside and the latter attacked the former with a knife.
She denied. It was further said that accused had tried to run into
'Maphiela's (P.W.6) premises but he missed the gate and got
entangled in a barbed wire and
deceased came while he was so entangled and he tried to
stab him with that knife. He then shot at him. She said that
she never saw accused try to run into 'Maphiela's premises. She never
saw accused entangled
in the wire.. She never saw deceased trying to
stab the accused with the knife while the latter was being entangled
in the wire.
Accused and the deceased were close to each other about
five to six paces. It was then specifically put to her :
Q: "Before he fired these shots he had fired the
warning shots as he was running away. - I saw the firing but no
She denied that at 'Maletsatsi's place accused ever
said that she should get outside. She also denied that
ever told Crown counsel that there had been any pushing
inside 'Maletsatsi's house. She identified exhibit
She said she knew it and it belonged to the deceased
andthat was the knife she had seen in the deceased's hand
whilehe lay in the street.
In re-examination she stated that she had not been asked
questions about a knife at the preparatory examination. She did not
exhibits previously. She had seen the pistol at the charge
office. She further stated that she did not see properly how the
hand held out the knife because she was some distance away
and there were also many people. She also stated that she did not
which hand actually held the knife. At the time she saw it, the
police were present. She had gone to the scene when the police
already there. She had passed the body of the deceased earlier that
morning at about 4.00 a.m. and that was the first time
when she was
going to 'Maletsatsi's home. Then it was too dark to see whether
there was any knife. Both hands were outstretched.
deceased lay, to the fence the
the distance was between eight to ten paces. She had
made a statement to the police and this was on the 29th August 1981.
'Maletsatsi (P.W.4) confirms to a large
degree what 'Mamaipato said took place in her house immediately upon
the arrival of the deceased
and 'Mamaipato. The accused arrived
almost with them. She thought they were going together. She
confirms that the accused uttered
the words which 'Mamaipato said he
did. She denies that any fight took place between the deceased and
'Mamaipato. She denies that
the deceased intervened in a fight
between the deceased and his lover. . She had asked the deceased and
Mamaipato to leave because
the deceased was noisy and would wake
up her children. The accused never said anything to her. She never
saw anybody being pushed
in her house.
After the trio had left she immediately went to sleep
and never heard anything. In the morning. 'Mamaipato woke
her up and made a report to her about the deceased.
Under cross-examination she stated that she was not
related to Maipato and that they were just friends. She had seen many
the street; she saw the deceased; she came closer; he was
dead but did not see exhibit 1. From her house to where the
body of the deceased lay was a distance of about 130 yards estimated.
The body was covered with a
blanket. His hands were also covered.
She did not know to whom the blanket belonged. She also stated
further that while at the
scene of the crime she did not talk about
the key. She stated that she was taking no sides in the case but
assisting the court to
arrive at a just decision.
She stated that after letting the deceased and
'Mamaipato in the house she did not ask them what they had
wanted because the deceased had said earlier that day he
would come to pay and she does not usually ask him when he
arrives if he has come to pay. She said that she had
said the deceased should go away because he spoke loudly and was
drunk and would
wake up her children. 'Mamaipato also spoke in a
loud voice when speaking to the deceased who was drunk. 'Mamaipato
was not drunk
and she does not drink and she, 'Maletsatsi,does not
drink either. She said it was at the time when she was telling them
to go out,
to leave her place, that the accused arrived and asked
the deceased whether he was still boastful. The accused never spoke
nor did she speak to him. In fact, she says, she thought they
were going together because they arrive simulteneously. She says
that words spoken by the accused were uttered on his arrival. She
stated that at the preparatory examination she did not mention
anything about these words because she was frightened then. She said
there was neither a quarrel nor a "qabang" between
and 'Mamaipato, There was no fight between the deceased and
'Mamaipato inside her house and accused never intervened because
there was no fight at all between the deceased and 'Mamaipato.
It was then put to this witness:
"Accused will deny that he said to the deceased
that he was proud. - He cannot deny that because that is what he
D/Sgt Lerotholi (P.W.5) deposed that on the morning of
the 29th August 1981 he received a report as a result of which he,
with D/Sgts. Thoahlane. and Selebalo proceeded to Upper
Thamae. There, a dead body of a male person, was identified to them
being that of the deceased,
He examined the body. It lay on its back. It was
covered with a blanket. The blanket was taken off. He inspected the
the body. He saw a knife. The knife was about two feet
away from the body. The knife was opened. The nearest part of the
the knife was the right hand, and it was about a foot away
from it. He said there were fences nearby and the deceased, lay in
middle of the street which was a sort of a passage. He saw two
wounds one above the left breast below the collar bone and the other
above the navel. The body was then transported to the mortuary. While
he was at the scene of crime he received some information as
of which he proceeded to the home of the accused. He found the
accused in the bath-room.
(It must be mentioned at this stage that the witness
also indicated that there was a key with the body of the deceased
which was fastened on a finger). He ordered the accused
to face away so that he could be searched. In his pocket he . .
firearm which was fully loaded with six bullets and the
seventh which was already engaged. He searched inside the house and
more bullets which he then took. The accused produced a
licence for both the firearm and the ammunition. The accused,
with the bullets, was handed over to Sgt. Thoahlane who was
responsible for the investigation of murders. The firearm and the
had been handed into Court at the preparatory examination as
evidence but the knife was never mentioned. He mentioned that he
thought that the knife belonged to the deceased because when
the deceased's brother was asked about it the latter said he was
it for the first time so "it could be that it did not
belong to the deceased."
The witness was referred under cross-examination to the
photographs taken by Sgt, Selebalo. He was asked if the knife, as
the photograph, was similar to exhibit 1
before Court and the examination went thus : /"Is
"Is it similar to knife that has been exhibited to
Court? - No.
Where is the difference? - The wooden handle.
What is the difference? - This one looks white here on
D.C. It has to be white because it is a black and white
photograph. Sgt. don't be stupid. It can't be
otherwise. It can't show the colour of the knife."
It will be shown later that the witness was not as
stupidas alleged at all. The D/Sgt. in fact, when being askedby
the Court said :
"What is white on the photo? - The handle looks
He was then asked if the two knives were identical in
shape and the D/Sgt. answered, "No,"
In re-examination the D/Sgt. agreed that he was in the
group of policemen who first arrived at the scene of . crime and this
between 7.00 a.m. and 8.00 a.m. 'On being asked by the Court he
denied that exhibit 1 was the knife he had found at the scene
of the crime.
'Maphiela Mapetla (P.W.6) gave evidence and
deposed briefly that the deceased and 'Mamaipato came into her house.
did not drink, that they had left and it was about
11.00 p.m. She closed her shebeen and slept. Some long time after
the sound of a gun three times and thereafter 'Mamaipato
made a report to her concerning the deceased. . She then said
made a report to her concerning the deceased. She then
said 'Mamaipato should go and report to the deceased's place. Under
she said that the body of the deceased lay near the
corner of her premises,
D/Sgt, Thoahlane (P.W.7) gave evidence and stated that
on the 29th August 1981 he, together with D/Sgts. Lerotholi
and Selebalo proceeded to Upper Thamae after receiving a
report at the Charge Office, They found the body covered with the
and it was uncovered and identified to them as that of Thulo
Matseletsele, On inspection it was found to have two wounds. He
the body and near the right side of body found a relatively
new knife and it was opened. In the hand was found a key and in the
pocket, when it was searched, an Okapi knife which was
closed was found. The body was taken to the mortuary together with
knives which were thereupon seized and labelled and then put
into the police exhibit room.
That briefly was the Crown's case.
The defence evidence briefly is as follows: Neo Leteba
(D.W.1) deposed that on the morning of the 29th August 1981 he left
Lower Thamae. As he went down the path leading to Lower
Thamae he saw many people standing. He saw a white cloth. He went
and in the centre of that cloth there was a person lying on
his back. The cloth was put around so that people could not get
to where the corpse lay. Whilst he was standing there amongst
the people there was a call that all men should come towards the
He came together with the other men. The corpse was dressed.
He thought the corpse was covered with a blanket. The arms were
The corpse was undressed, he saw a knife and a key.
The knife was in the right hand and the key inside the left hand. The
was similar to exhibit 2. He saw exhibit 1 come
out of the pocket of the corpse. It was taken by one of the men he
thought were the police. It was closed when it was taken
However, exhibit 2 was opened. He only left the scene when
the body was put in the vehicle. He did not see what happened to the
saw when photographs were taken. He does not remember
where exhibit 2 was placed when the corpse was undressed.
When the body was photographed exhibit 2 was still in the
hand. . The body was photographed both before and after it was
Under cross-examination he mentioned that he had known
the accused since he was a child. He did not know that the accused
involved in the killing of the pereson. He did not see the
white cloth in exhibit 'B'. He agreed that the photographs
were taken from different angles. He said the white cloth had been a
metre high. He agreed that
the cloth ought to appear on the
photograph. He was sure the cloth was not removed when the
photographs were taken.
The accused gave evidence on his own behalf. He says
that on the 28th August 1981 he visited different places at Upper.
was drinking liquor. He got to the house of 'Maletsatsi.
He had come from Peete Peete's licenced bar. He had been drinking
until midnight. When he left it . was closing time. He
therefore took it that it was midnight. At the house of 'Maletsatsi
is being sold. He had been there on several occasions.
However, on his arrival that evening the door was closed. He knocked
'Maletsatsi asked who he was and he told her. Before the door
opened a certain man who he did not know arrived. This man tried to
say something to him but he took no particular notice. He says he
was drunk but not much. He entered the house and while he was
looking for a place to sit the man who had also entered rushed at a
certain woman who was in the house and slapped her and hit her
fists. He did not know this woman but knew 'Maletsatsi. He did not
know who that strange
man was but he now knows it was the deceased. He said
that he saw the deceased assault 'Mamaipato.'Maletsatsi and her
brothers were present. There were no other guests.
'Maletsatsi pushed them and said they should get outside. There was
He then got hold of the deceased and said he should not
fight. He pushed him some distance away. The deceased resisted and
firm. He then pushed him towards the door and they both went
outside. Deceased was not holding him but they were struggling. As
he pushed him he found himself outside. When they were outside he
let go of the deceased, who then rushed at him. The accused retreated
and ran away. He was attacked by the deceased "with his hands."
He ran towards the gate.
As he thus ran he took out his firearm from his pocket
and fired into the air. When he looked back he saw the deceased going
other direction round the house in which 'Maletsatsi and the
family lived: "He was behind the house going past the house he
had now left." He, the accused, then returned to 'Maletsatsi's
house. He did not enter because when he appeared at one corner
the house and the deceased at the other the latter asked him whether
he was there again whereupon the accused answered:
"I said you should stop fighting, what are you
fighting in here?"
Then the deceased said:
"Are you boasting of shooting?"
He, the deceased, then put his hand in his overcoat and
took it out with some object in it, however, he could not see as it
He could not see it as the deceased rushed at him. He saw
his arm raised. The accused then turned off and fled. When the
was now about six or seven paces from
him, he then ran towards the gate. The deceased
continued to chase him. He went out of the gate, he also went out. He
was still firing
in the air with exhibit 3. He had eight
bullets in it that night. He had realised when he left the scene of
the crime that evening that he had spent all
the bullets as he was
firing. The deceased continued to chase him. He then realised that
the passage he had to run through was narrow
and he then took a
different direction going to pass 'Maphiela's home. In his own
words: "I tried to get to her home. I was
not yet at the gate
and I tried to enter. I then fell or hit the fence. I got entangled.
When I lifted my head I saw him very close
and raising his hand. It
was dark. I saw nothing in his hand, I took it he was having a
dangerous object, a sharp object. I fired
towards him twice, in
rapid succession." He said he shot twice because he was in
trouble. He fired in quick succession. He
could not notice if there
was anything between them. He thought the deceased was coming to
kill him. He was trying to save himself.
He did not intent to. kill
him. After he had fired at him, the deceased tumbled back and he,
the accused, freed himself and ran
away. He did not see the deceased
fall. He ran away because he had the chance of doing so.
In the morning as he was polishing his shoes ready to go
to 'Maphiela's house to find out who the person was who chased him
night, the police arrived. It was about 8.00 a.m. or
slightly thereafter. He learned that the person who had chased him
He had noticed or discovered that after he had shot the
deceased he found he had used all the bullets.When he fired at the
he did not know that only two bullets were left. He
discovered this afterwards when he reached home. He re-loaded
exhibit 3 with seven bullets when he got home
Under cross-examination he conceded that when the bar
closed he had had a drink but he was not drunk. He was not that much
as he put it.
He said he had known 'Maletsatsi from childhood.
'Maletsatsi was not telling the truth when she said that he
didn't. usually go to her home. She wasn't telling the
truth when she said that he asked the deceased whether he was
says that he had uttered those words, but she
does not speak the truth either. In his own words "I was not so
drunk as not
to know whether I uttered such words or not." He
had heard that the trouble was that 'Maletsatsi wanted 'Mamaipato and
to leave because they made noise and she wanted to sleep.
But it is not so, he had'heard 'Mamaipato say so too but it is not
' The reason he can advance why she 'Maletsatsi said' there was
no fight is because that was her intention. He says he helped
by pushing the deceased out. He says when he started
helping, she was already saying they should-go. He. said when he
the first occasion) he had not gone as far as the
gate. It was surprising that 'Maletsatsi did not hear the firing.
did not take place far away. He returned to the house of
'Maletsatsi because the person who was chasing him had run away, and
him disappear behind the house. He thought he did so because of
the sound of the firearm. When they came face to face, as it were,
with the deceased and there had been a conversation, there had been
this chasing outside, 'Mamaipato and 'Maletsatsi must have heard.
said that 'Mantsela Mara heard all the commotion. However he
"I could not come back to the person who had fired
Nonetheless, the deceased came to him at "full
force" as he puts it. He fired in the air. This was the second
did so. The deceased continued to chase him. He conceded
that it was very stupid of the deceased to have come back to him.
When he shot at the deceased he was defending himself.
He did not see what he had in his hand. He did not see 'Mamaipato.He
know whether she was there or not. "It could be that she
was running with the deceased," he said: However, he says he
have seen her if she was close to the deceased. He further
says she is lying when she says that he passed next to them and fired
at them. , He says he did not see 'Mamaipato at the shooting, that is
at the time the shooting took place. She might have reported
the shooting because they had "just fought with the deceased"
as he put it. He had run away after the shooting.
He was not
entangled in the barbed wire as he was running away from the scene.
He did not go to the scene of the crime that night.
He did not go in
the morning., He was going to pass there on his way to 'Maphiela's
home. He had re-loaded exhibit 3 at home because he did not
know whether the
deceased might come. He also stated that the policemen
did not take him to the scene of the crime. He knew the knife the
him about at the charge office. They had said that they
found two knives at the scene, one of which must be his. They did
him these knives. The policemen who had given evidence in
this case were present when this was said. He said he was seeingexhibit 2 for the first time. He told the Court that the first
defence witness had visited him whilst he was in custody. He had
him that the dead body was found with bullet wounds. It had
a key and
also a knife in hand and another knife in the pocket
that was all he remembered. He had also been told that the body-had
He did not remember when 'Mantsela Mara told him that
she had heard the commotion that night. He went to her to ask
was not at her home,'Mantsela's house and 'Maletsatsi
share a wall. He did not 'go and ask 'Maletsatsi whether she had
commotion. He did not ask 'Mamaipato. He went to
'Maphiela's. He asked her if she knew about the events however, it
that he was not talking to her but to her husband. They
said they knew but they did not want to be involved in the matter.
The third defence witness Mrs. Motoa gave evidence and
said briefly that there was a fence between her site
that of 'Maphiela; their sites are opposite each other. There is a
road separating them, which has now slightly changed as two
cannot now overtake each other. She has electricity installed in her
house and there is a lamp which casts light into the
remembered the night of the 28th August, 1981. She was asleep. It
was about 1.00 a.m. She was awake however, when
she heard shots
being fired in succession. She put it at more than five times. She
then quickly got off her bed thinking that she
was being attacked.
She ran outside. As she handled the door of the sitting room, she
heard foot steps of someone running upwards.
She went out and checked
the lights. The light outside was off. But when she went to bed it
was on. She went back into the house,
got a globe and put it on.
She did not see anything. She said if there had been anybody in the
street between her house and 'Maphiela's
she would have seen that
person. She knew 'Mamaipato, If she had been there or been in
trouble she would have expected 'Mamalpato
to have come to her. She
owned a vehicle and would have assisted any
person. In the morning she heard an alarm by 'Mamookho.
got up and went out. There were some other people. On
left of the body there was a key. The right palm was
On the overcoat it seemed as if a knife had fallen or
there. She could not say whether it was exhibit
exhibit 2 but the make was the same. The knife
She was shown exhibit 'B' 2 and 4 and she says:
was as in 'B' 2, only the handle was showing," When
uncovered the body she saw the whole knife. Her house
closest to the street. After she had replaced the globe
she remained outside for. some time. As she puts it,
I went to the bedroom of the children." She took
ten minutes outside with the light on. She did not know
'Mamaipato did not come to her house. Perhaps she was
afraid of the dogs. If she was outside she would have shouted at her.
Under cross-examination she said that 'Maletsatsi lived
not far from her, in other words, their sites are not far apart. If
had been any noise outside the former's home she would have
heard it. The footsteps she had heard were heavy footsteps of one
She could not have seen a person fallen where a body was
subsequently found as there had been a heap of siol in her yard. She
on exhibit B1 what she said was a heap of soil. There
are people standing there and they are perfectly clearly, seen. The
soil hardly reaches
their legs. She had known the accused before
this incident. She does not sell liquor at her place. 'Maphiela
does. Her dogs are
very vicious. There was nothing guarding the
body like a white cloth. There was nothing preventing people
the body of the deceased.
On being asked by the gentleman Assessor she said it was
true that there is a custom at Thamae's that when one hears a
the streets, even if they don't go out they look through
the windows, but if 'Mamaipato had raised
alarm she could have heard and helped.
Dr. N. Mapetla, a medical doctor stationed at the
Queen 11 Hospital, examined the accused on the 1st September 1981.
She found that he had multiple
scratch marks on the left leg on the
chin, the left palm and on the back of the head. According to her
the injuries were not dangerous
to life. The injuries could have
been caused by a sharp object, however, a knife could not have caused
Under cross-examination she agreed that the injuries
could be consistent with the accused having been entangled in a
She also told the Court that a pin could . have caused
similar injuries. She could not recall whether when she examined
they were fresh, however, they were superficial.
Dr. Leoatle Motsamai. whose evidence at the
preparatory examination, was admitted as evidence at this trial, was
called and asked a few questions by the
Court. The question really
asked was whether from his recollection of the examination he could
say the shot had been fired at close
range or at what distance the
measiles could have been fired and the answer was that he could not
recall. He was unable to say so
unless it appeared in his report.
He gave as the cause of death, internal haemorrhage. The
deceased had gun wounds showing entry on left shoulder entering the
through the left second intercostal space
injuring the left upper lung lobe, the pericardium, the
ascending iota and lodging in the right middle lung lobe;
second bullet entered epigastric region injuring the
stomach and the small intestines and lodging above the right aliac
to his report he found a raptured pericardium
and. there was blood in the pericardium sac. There was
rapture of ascending iota and the left haemothorax. In the left lung
was a hole through the apex. The stomach was perforated; so
were the small intestines. That concluded the evidence before Court.
The defence had wished to call 'Mantsela Mara but
as a result of the medical report handed into court by the defence it
became virtually impossible and it could not be said when
her condition would improve and the case could not be postponed sine
die. The Court would also have wished to hear this witness.
However the circumstances were that was impossible. The Court waited
a week and a doctor called by the Court indicated that the
witness's condition was getting worse. If, she had given evidence at
the preparatory examination. I am of the view that the provisions of
section 227 of the Criminal Procedure and Evidence Act (supra)
apply. These provisions are not applied in favour of the Crown only.
'Mamaipato was subjected to a lengthy, searching,
tideous. and repeatative cross-examination. (Her evidence covers
typed pages). But despite all that the witness gave
her evidence very well indeed. There were the discrepencies, if one
It that way, between her evidence and that of 'Maletsatsi.
In fact, only one, namely, as to when the words alleged to have been
uttered by the accused:-whether they were uttered on his arrival or
when 'Mamaipato and the deceased were leaving 'Maletsatsi's house.
But on closer examination it does not seem to the Court that there Is
such a difference after all that. 'Maletsatsi describes
that when the words were said it was when she was
already telling 'Mamaipato and the. deceased to go out. In other
words, it was
at the time when there was a talk of going out and the
accused was already in the house. 'Mamaipato says they
were uttered by the accused as he entered, 'Maletsatsi says they
the three of them together. So to the Court it does
not seem as if there is much difference. It is of very little
The important thing is, she is corroborated by
'Maletsatsi that the words were uttered; Other than these little
is corroborated by 'Maletsatsi in all the details
of what happened inside Maletsatsi's house. It is also significant
that to 'Mamaipato
it was never put that the accused would deny that
he ever uttered such words. About the events that took place outside
'Maletsatsi also corroborates 'Mamaipato that nothing
happened outside her house; In other words, she did not hear of any
outside her house. nor did she hear any loud conversation
infront of her house. I treat the evidence of 'Mamaipato with great
because she may have a motive of falsely implicating the
accused. Her lover had been killed. In certain aspects, of her
also, she is a single witness and I have warned myself of
the dangers inherent in accepting the evidence of such a witness,
(Rex v. Molomo CRI/T/38/75 dated 2nd April, 1976), I shall
also treat 'Maletsatsi's evidence in the same way because she is
friendly to 'Mamaipato
despite the fact that she made her position
clear as regards the accused and her duty towards the Court.
After the deceased was shot and he staggered and fell,
the accused ran away. She is corroborated not only by the accused
he denies that he saw the deceased fall, even
'Mamotoa heard the footsteps of one person running, and 'Mamotoa had
been awake even
before the first shots were fired. She never heard
the footsteps of many people; From exhibit B the deceased wore
what appears to be the heavy
military style boots. To this extent she is corroborated
in her evidence that they would have caused heavy steps if one ran in
The deceased was shot as he was not running nor was he chasing
anybody. It was contended on behalf of the accused that he had fired
five warning shots at the deceased. This fact, so it was argued,
found support in the evidence of 'Mamotoa and one witness who gave
evidence during the preparatory examination but not at this trial. It
was argued that the witness's depositions even though not admitted
consent, were nevertheless evidence at this trial because a portion
of the preparatory examination record had been 'let in' this
when the evidence of Dr. Motsamai at the preparatory
examination was by consent admitted and thus became evidence at this
trial. The procedure this Court knows and
is followed daily in
criminal trials is that where the Crown does not call a witness it.
intended calling and the defence wishes
to do so, the defence simply
obtains that witness's statement from the Crown and proceeds with the
witness as its own. The strange
procedure propounded by the defence
is not known to this Court neither could learned counsel refer this
Court to any authority for
his proposition. (See R. v. Sepanya
CRI/T/17/77; section 273 of the Criminal Procedure and evidence Act 9
of 1981 which governs admissions in a Criminal trial). Even
in favour of the accused that he fired warning shots, 'Mamotoa says
the shots fired could have been more than five this
tends to support
'Mamaipato's version. She said that shots were fired in their
direction. It was during that period that deceased
injured. If he fired five times in the process she said she did not
remember as she was frightened. The witness who heard
fired, only heard them almost all at once - fired in succession. This
then again lends support to 'Mamaipato's
version that there had been no firing of shots outside
The witness was made to repeat again and again what
transpired inside 'Maletsatsi's house and here is an example:
"D.C, : So, what happened when the accused came in,
-He greeted and asked the deceased whether he was still boastful.
I want to know what he said to the owner of the house? -
H.L. : He did not speak to 'Maletsatsi ? - No.
Neither did 'Maletsatsi speak to him? - Yes.
D.C. : 'Maletsatsi did nost say, look I am asleep
already, please go away, I am not attending to you, she did not say
that? - He
came in at the time 'Maletsatsi was already saying we
should go out because we are making noise."
'Maletsatsi subsequently was to confirm this. The
witness was taxed about the fact that she did not raise an alarm when
was shot at. She said she raised it by going to
'Maphiela's house and telling her about what had happened. It was as
witness had done something very unusual. She had not
gone to the Chief's place. She in fact did not cry out aloud and
help and yet she was to be borne out in this evidence by
'Mamotoa when she said it was a custom at Upper Thamae that when
a fight people do not go out but peep through their windows.
So it turned out that although at first sight 'Mamaipato seemed to
given evidence contrary to the custom as it is known in Lesotho,
she was telling the truth as far as the custom is practised at Upper
About the evidence that the following morning when
people were gathered at the scene she saw a knife in the right hand
of the deceased
and the knife had a brown handle and that the knife
belonged to the deceased and that it was exhibit 1. I think
here she was mistaken. There was a knife on the
ground about a foot away from the hand of the deceased.
She had seen a knife in the hand of the deceased on the
previous evening or early that morning when they were at 'Maphiela's
She saw the deceased put the brown knife inside his back
trousers pocket. What must have happened is that by association she
at that knife and immediately thought it belonged to the
deceased. The fact that she has told what appears to be an untruth
not necessarily lead to the conclusion that her evidence is
totally unreliable. (Rex v Nketu. CRI/T/45/81, dated 11th
August, 1982). Except for this piece of evidence she has been
corroborated in all the evidence where there
were other people
present. She is also corroborated by 'Mamotoa (a defence witness)
that there was only one outburst of shots. Her
evidence is therefore
reliable, trustworthy and is accepted as being truthful. From her
demeanour 'Maletsatsi was a witness of truth.
Indeed she lived up to
her promise to the Court.
The other witness who says he saw a knife in the hand of
the deceased is the first defence witness. He must be mistaken
two policemen who have given evidence together with
'Mamotoa did not see any knife in the hand of the deceased. In fact
bear this out although the first defence witness
wanted to suggest that more photographs had been taken. There
this knife which was on the ground, a foot away from
the right hand of the deceased. Perhaps, to a person who did not look
as it were, it might have seemed as though the deceased had
this knife in his hand and to 'Mamaipato who had seen the deceased in
possession of the knife previously this became a reality. Fromexhibit 2 especially the handle looks whitish in colour. In
other words, the colour is white and when the knife itself was
handle is of a light colour so that the D/Sgt. Lerotholi
was not stupid as the defence
counsel had suggested. He said the knife which was
before Court was not the knife which was on the ground at the scene
of the crime.
The brown knife was found when the person of the
deceased was searched and it had been closed. I accept the evidence
of the two policemen
that there was a knife near the right hand of
the deceased but not in his hand. I accepted their evidence that one
knife with the
brown handle was found when the person of the deceased
was searched, I accept the evidence of the policemen that the two
were kept in exhibit room. Why the evidence about the knives
was not led at the preparatory examination cannot be laid at their
door for they do not or are not responsible for the leading of
evidence at the preparatory examination. That is solely the function
of the Public Prosecutor.
Neo Leteba. the first defence witness, describes
himself as a senior Audit Examiner. That morning he saw a white
cloth surrounding the body
of the deceased and at the centre of that
cloth he saw a person lying on his back. It was put around so that
the people could not
get closer to the corpse. He said that he saw
the knife but as indicated earlier many other witnesses who were
present at the same
time as him did not see the knife which he says
he saw in the hand of the deceased. The white cloth was no where to
be seen on exhibit B. The photographs comprising exhibit
B were taken from different angles and yet the white cloth, which he
said was a meter high, could not be seen. There were no questions
concerning the evidence of this witness put to the police witnesses.
'Mamotoa also saw no such a cloth. This witness had informed
accused that deceased had sustained three wounds. The doctor only
found two wounds. This witness has created the impression that
not at the scene of the crime. He relied too much on hearsay evidence
until it became a reality in his mind. He was shifty
the witness box and did not live up to his educational
standards which were lauded so much in argument. This
witness terribly misled the accused into believing that the body of
was photographed still clutching a knife. That is one
reason why exhibit B was introduced into the evidence by the
defence. As they revealed, he had lied to him yet again.
The accused was restless in the witness box. He told
one lie after the other. If it is true that the question of the
knives was discussed
at the charge office, in the presence of the two
police witnesses, why was there not a single question to this effect
them? If it is true that the police refused to take him
to the scene to retrieve the empty shells why is it that not a single
was directed to the two police witnesses who gave evidence
at this trial? If it is true that prior warning shots had been fired
'Maletsatsi's house why is it that witnesses only testified to one
occasion when there was a burst of gun shots? Why is it that 'Mamotoa
never heard of the earlier outburst of firearm shots? Why is it, as
his counsel so kindly informed the court that not only would
'Mantsela Mara say that she heard the commotion inside 'Maletsatsi's
house but that after the fight 'Maletsatsi came to speak to
she heard footsteps; that not a single question was put to
'Maletsatsi concerning this so-called important evidence? All
factors are clear indices that the evidence of the accused was
fabricated as the trial progressed. It was unbelievable that
accused wished to consult his lawyer before he could divulge the name
of 'Mantsela Mara. The importance of not putting his defence
Crown witnesses while in a position to comment thereon will be shown
It was argued that the body of the deceased was not
formerly identified. It was not necessary since there was
no dispute that the accused had killed the deceased but
did so in self-defence. The only issue before Court is whether that
or not. If it was meant that the body shown on the
photographs was not that of the deceased then one fails to understand
why the defence introduced them into evidence. They were
introduced solely to show the relative position of a knife in
the body of the deceased. It was common cause that the
body shown in the photographs was that of the deceased, 'Mamotoa
said in her evidence that she knew the deceased (although at
first she did not quite recognise him) and that the body was later
by the police. In my opinion there had been plenty of
evidence of identification of the deceased and it is not clear at all
this matter was ever raised at all.
The accused has raised the defence commonly referred
to as self-defence or private defence. The basic
principle in regard to self-defence was succinctly stated by
Watermeyer, C.J. in
the cake of R.v. Attwood. 1946 A.D. 331 at
340 as follows :
"The accused would not have been entitled to an
acquittal on the ground that he was acting in self-defence unless it
as a reasonable possibility on the evidence
that the accused had
been unlawfully attacked and had reasonable grounds for
thinking that he was in danger of death or serious injury ..."
also Rex v Penedo, dated 26th May 1978; S.v. Mokonto,
1971(2) S.A. 319 (A.D.) at pp. 323-4). (My underlining).
The onus of negativing self-defence in criminal
cases is on
the Crown. (R. v. Ndhlovu. 1945 A.D. 369 at 381;Rex v. Penedo (supra)).
The evidence of the Crown, through its principal
witnesses, has clearly established that there was no fight between
the deceased and
'Mamaipato, There was consequently no intervention
by the accused between the deceased and 'Mamaipato since there was no
even an altercation.
The witnesses are agreed that the noise inside
'Maletsatsi's house was caused because of the deceased's drunken
state. The Court accepts
that the deceased and 'Mamaipato were asked
to leave as the former was making noise.
It is significant that the defence version that another
person named 'Mantsela Mara would give evidence to the effect that
heard the conversation between the accused and the deceased
when they stood at opposite corners and that she also heard the
inside the house and particularly that 'Maletsatsi went to
speak to her immediately thereafter was never put to these witnesses.
The importance of putting accused's version to Crown witnesses who
are in a position to comment upon it was put by Maisels,'P. in
case of 'Mota Phaloane v Rex. 1981 LLR. 246 at 252:
"Making due allowances for certain latitude that
may be afforded in criminal cases for a failure to put the defence
case to Crown
witnesses, as to which see the remarks of Davis A.J.A.
in Rex v M. 1946 A.D. p. 1023 at 1028, it seems to me that as
MacDonald J.P. held in S. v. P. 1974(1) S.A. 581 it is
important for the defence to put its case to the prosecution
witnesses as the trial court is entitled to .
see and hear the
reaction of the witness to every important allegation. And as
Claasen J. put it in Small v. Small 1954(3) S.A. 434:
It is, in my opinion, elementary and standard practice
for a party to put to each opposing witness so much of his own case
as concerns that witness, and if need be, to inform him,
if he has not been given notice thereof, that other witnesses will
him, so as to give him fair warning and an opportunit of
explaining the contradiction and defending his own character. It is
unfair and improper to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that he must
Not to have put the opposite view of what the witness
would say suggests to the Court that the accused was not sure of his
and it was fabricated as the case progressed. Apart from what
has already been said, the following examples
will suffice :
In the presence of the accused his instructions were
conveyed as follows to 'Mamaipato :
"D.C.:.... deceased was chasing him with that knife
(reference to exhibit 1).
A : No.
D.C. : .... the deceased came whilst he was still
entangled in the wire, raised his arm and tried to stab him with that
knife and that is when he shot him, did you see that?
H.L. : Did you see the accused trying to run into
'Maphiela's premises? - No.
Did you see the accused, entangled in a barbed-wire? -
Did you see the deceased try to stab the accused whilst
the accused was entangled in the barbed-wire? - No,
D.C. : He will say that as he was fleeing from the
deceased he had fired a number of shots at him .... that he had fired
of warning shots at the deceased without success - I saw
when he fired."
However, a day or two later when the accused gave
evidence in his defence he never mentioned a single occasion that
night when he
saw the deceased in possession of a knife. He was
expected to repeat his version which he had heard a few days
put to 'Mamaipato. He was not recalling
evidence he had given in another Court over a year previously as
Crown witnesses did. His
memory was letting him down terribly. The
reason was simple. He had lied to his counsel. Accused is an
intelligent person and not
expected to have told the Court a tissue
of lies. His evidence has been clearly shown even by his own
witnesses to be false beyond
It is of significance too that the name of this witness
was mentioned for the first time as a result of the Court's questions
in turn, aroused, such an unwarranted attack on the Court, by
the defence counsel, for which no regret
been expressed up to now.
There was yet another attack on the Court's conduct of
the trial. It was contended that the court had impeded a crucial
'Maletsatsi's cross-examination. This occurred when the
witness was being referred to what she had said in her evidence
preparatory examination. The Court was merely drawing
attention to what this Court has said in the case of Rex v.
Tsietsi Moleleki CRI/T/29/81 dated 10th March 1982, in which
Rooney, J. said at p. 2
".... All the witnesses apart from Drs. Choi and
Park, gave evidence in Sesotho. The magistrate recorded the evidence
He did not have a Court interpreter and he performed
that duty himself in view of his knowledge of "both languages.
a practice which should never be followed, even where the
magistrate concerned possesses some skill in interpretation.
In the first place, magistrates are not sworn
translators. The magistrate at the preparatory examination in this
case, set himself
an almost impossible task. He had to listen to the
evidence, interpret it and record it in another language. In the
result the depositions
abound in Sesotho idioms which have been
translated literally into English producing an effect on the style
and language used which
could be regarded as a comical in a less grim
It should be remembered that (subject to the proviso
therein contained) Section 7(1) of the Subordinate Courts
Proclamations (as amended)
lays down that the record of proceedings
in civil as well as in criminal cases shall be in the English
language. If the services
of an interpreter are dispensed with and
if it were shown that the evidence has not been properly translated
by the presiding magistrate
this could result in the setting aside of
the proceedings at a preparatory examination. In the present
instance no objections were
made by the defence to the depositions
recorded and they were admitted in evidence."
The deposition of the witness in question had not been
admitted by the defence. However, the cross-examination of the
allowed to continue although it developed into the
semantic use of certain English and Sesotho words. If there was any
of the cross-examiner that was certainly not the sole
object of the Court, The Court did what it did in the interests of
It has a duty to
-29-protect its witnesses whenever it thinks it's
Such outbursts against the bench were aptly described by
Schreiner, J.A. in R.v. Silber. 1952(2) S.A. 475 at 484A-B :
"Why then, one asks oneself, did he make the
application? The explanation of his conduct is certainly not obvious.
vanity had been hurt because his objections, 'despite his
strenuous arguments, had been so regularly overruled, and he might
been aiming at restoring his self-esteem and possibly his
position in the eyes of the public by a daring attack on the
Another possibility is that he felt that the case was
going against his client and hoped to intimidate the magistrate, or,
to drive him into commiting some irregularity of which use
might be made on appeal. The appellant's counsel submitted that so
as he was aiming at the advancement of his client's cause he
could not be guilty of wilfully insulting the magistrate; I do not
agree. It' may seem to a practitioner, in a seriously misguided:
moment, that his client's cause may be advanced if he wilfully
insults the Court, but this ultimate sense of duty to his client will
not excuse him if his immediate intention was to insult the
do not think that the reasonable possibilities admit of any more
favourable estimate of the appellant's behaviour than
that he had not
consciously worked out a plan to insult the magistrate but that,
irritated by the lack of success of his objections,
he (adapting the
language of Lord. Esher in Royal Aquarium and Summer and Winter
Gardens Society, Limited v. Parkinson, 1892(1) (Q.B.431 at p.
444) allowed nis mind to fall into such a state of unreasoning
hostility towards the magistrate that he was
reckless whether the
charge of bias had the slightest foundation or not. And if that was
the position then, too, in my opinion he
was wilfully insulting the
I entirely agree. If the accused did receive any undue
attention from the bench's questions then so did the Crown witnesses.
counsel never for a moment questioned the Court's right to do
so nor did he resort to any antics. The defence almost said the Court
was biased. If that were the case, the proper procedure should have
been adopted. It must be made quite clear that a judicial officer
entitled to ask witnesses questions. They may at times be difficult.
A judicial officer in our legal system is not an "ampire"
who sees to it that the rules of the game are observed.
(Rex v Hepworth, 1928 A.D. 265 at 277). However,
a judicial officer must be warry lost he descends into the arena and
it is a terrible thing
to see justice blinded. (Phafoli v Rex,
1976 LLR 88 at 100-102). There are times when a judicial officer
will appear to be unfair to one of the parties to the dispute.
such circumstances it is the duty of counsel represnting such a party
to bring such conduct to the notice of the judicial officer.
alao human beings and suffer from human frailties. In doing so
counsel is not expected to disrupt the decorum due to the
will bring the conduct of such judicial officer to his attention with
the combination of courtesy, respect and firmness.
Technique in litigation, 2nd Ed. p. 304). The general public must
see, by conduct, that counsel owes his allegiance to the bench
however strong his feelings towards the cause of his client, the
confidence to his bench must be maintained. His personal feelings
must not be allowed to get the better part of him because once that
happens he may be sure of being dealt with swiftly for contempt.
nearly happened in the present case. Arrogance and offensiveness are
the attributes not recommended to a lawyer towards his
The two witnesses for the Crown were adamant that there
was no commotion outside 'Maletsatsi's house. If there had, they
heard. However, 'Mamaipato was in the company of the
deceased. She saw nothing of the sort. When she left the house of
she was with the deceased who never left her company
except shortly before he was fatally shot. The Court accepts their
as being the truth of what they say happened that night.
The conclusion this Court arrives at on the evidence is that there is
reasonable possibility on the evidence that the accused was
by the deceased. He might have sustained the injuries
described by the doctor elsewhere. 'Mamaipato did not even implicate
falsely saying that he already sustained those injuries
on his arrival at 'Maletsatsi's house, 'Maletsatsi would have also
that accused had already sustained those injuries on his arrival
at her home. She had seen him. She knew him. But because they
endeavouring to tell the truth they did not do such a thing. They
had not paid much attention to him. On the evidence there
therefore no unlawful attack on the accused by the deceased that
There was much to be said for the argument put forward
by Crown Counsel, namely that exhibit 2 had been planted by somebody
not know that the deceased already had in his possessionexhibit 1. This argument finds support in the evidence of the
defence witness, 'Mamotoa,
The next inquiry is whether the accused had the r
requisite mens rea when he so fatally shot the deceased. 'Mamaipato
did not know
the accused. She, therefore, did not know whether he was
drunk or not. 'Maletsatsi who knows the accused well was never asked
condition of the accused as regards his sobriety. The only
evidence on the issue of sobriety is that given by the accused. He
drinking early on the evening in question until about
midnight. There is no evidence as to the quantity of liquor he
the accused made it quite clear in this Court that
he was not so drunk as not to remember what words he uttered He
that he had a lethal weapon in his hand. When he
discharged the pistol in the direction of the deceased, in his
proximity, he was
reckless whether death
ensued or not. This result he must have foreseen. He
therefore had the requisite mens rea when he fired and killed
The accused is found guilty as charged. My assessor
agrees with all my findings,
The onus is on the accused of establishing the
existence of extenuating circumstances. This onus is discharged on a
balance of probabilities
and the test applied is subjective.
The Court is not confined to the evidence that may be
led at this stage, because if looking at the whole of the evidence
there is a fact of facts favourable to the accused, the
Court is entitled to take such fact or facts into consideration in
whether extenuating circumstances exist. (Rex v.
Mokoena, CRI/T/19/80 dated 3rd September, 1981).
The Court in considering this moral judgment is enjoined
to take into consideration the standard of behaviour of an ordinary
of the class of the community to which the accused belongs.
There are only two factors which favour the accused in
the present case and these are :
(i) it has been found that his dolus waseventualis;
(ii) that he was under the influence of intoxicating
liquor, when he committed this crime.
regards (ii) above it was held in Rex v Ramonyatsi
and another, CRI/T/47/81 dated 10th December 1982 that
does not demand a defined.degree of intoxication before
it can serve as an extenuating circumstance.
The combination of these factors constitute extenuating
circumstances in the present case.
My assessor agrees with these findings.
The accused has used a lethal weapon in killing the
deceased. The killing, on the evidence before Court appears
in murder trials it is seldom that the
Court is ever told the motive for killing. From the
words which the accused uttered in 'Maletsatsi's house, it would
seem that the accused knew the deceased and that they
had had some experiences together from which the accused gathered
that the deceased
was a proud or boastful person.
Whatever this experience, the Court has been denied its
nature by the evidence before it.
There has been an increase in the use of firearms which
have resulted in many deaths. A few examples will surfice :
(i) Rex v Mokoena, CRI/T/19/80 dated 3rd
September, 1931. (ii) Rex v Phaloane. 1980(2) LLR. 260. (iii)Rex v Tlelima, CRI/T/11/82 dated 16th September,
(iv) Rex v Ramonyatsi and Another, CRI/T/47/82
dated 10th December, 1982.
It is obvious that the use of a firearm as a means of
killing fellow human beings is on the increase. The Courts would
thus be failing
in their duty if they did not demonstrate their
abhorance of this menace. The Courts have in the past warned against
conduct. It is, in the words of Maisels P., in
Phaloane's case reported in 1981(2) (supra) at page 267 "the
Court's duty to
demonstrate in unmistakable fashion that such conduct
.... will not be tolerated in this country and the way in which it is
do so is to pass an examplary sentence in this case."
This is precisely what this Court intends to do in the present case.
After careful consideration of the facts the least
possible sentence the Court can impose on the accused is
one of ten (10) years' imprisonment.
Exhibit 3 (the pistol) is hereby declared
forfeited to the Crown.
JUDGE. 25th February, 1983.
For the Crown : Adv. S. Peete For the Defence : Mr.
IN THE HIGH COURT OF LESOTHO In the matter
REASONS FOR GRANTING AN APPLICATION MADE BY THE CROWN
FOR CALLING ADDITIONAL EVIDENCE.
When I granted an application made by the Crown to call
two witnesses who did not give evidence at the preparatory
examination I said
I would give my reasons later. These now follow :
The Crown has made an application to lead the evidence
of witnesses, at this trial, who were not called to testify at the
examination. This Court has stated in the case of Rex
v Rampine & Another, 1978(2) LLR. 377 at 383 that "provided
sufficient notice, to which the intended evidence is annexed, is
served on the defence
counsel and he is given sufficient time to
consult with his client and prepare his defence in view of the
altered circumstances and
there is no objection, it is usually
granted at the Court's discretion." There must, moreover, be
cogent reasons why such evidence
was not led at the preparatory
examination. It was made quite plain in Rampine's case (supra)
that the Court would not allow such an application if the written
statement of the witness now sought to be led was
available at the
time the preparatory examination was held and for no
apparent reason, was not made use of. Let me hasten to
add that in that case the evidence sought to be led was quite
bulky - more than the evidence actunlly led at the
preparatory examination. However, if there are cogent reasons why
sought to be led was not so led during the preparatory
examination then as Cotran, C.J. puts it in the case of Rex v Faku
(2) 1979(1) LLR. 215 at 221-2 there is "nothing in law that
prevents the Crown from calling a witness even if he did not give
evidence at the trial (i.e. preparatory examination)," The only
safeguard in this respect is that an accused person is entitled
as I see it, is an account of what the witness is
expected to say, so that he (accused) will not be taken by surprise
and prepare himself accordingly.
I have seen the evidence sought to be led. It is very
short indeed. The accused has been given sufficient time to prepare
The reasons for the non-introduction of the evidence at
the preparatory examination are, in the context of this case,
cogent. The Crown, in my view, has satisfied the
requirements laid down by the cases mentioned earlier in this
In my discretion and bearing in mind also that a
Criminal trial is not a game where a judicial officer has to see that
the rules of
the game are observed but also (and that is what a
Criminal Trial 'is really all about) to see that justice is done or
to put it
in another way, to arrive at a just decision, I grant the
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