CRI/T/26/82

IN THE HIGH COURT OF LESOTHO In the matter of :

REX

v LEBOHANG MOLIBETSANE

JUDGMENT

Delivered by the Hon. Mr. Justice M.P. Mofokeng on the
25th day of October, 1983

Lebohang Molibetsane (hereinafter referred to as the
accused) is charged with the crime of murder. He has pleaded not
guilty.

I must preface this Judgment by referring to the
inordinate delay in bringing the accused before this Court. Delays, I
am afraid to
say it, are becoming a common feature of our Criminal
trial system. It should never happen for Justice delayed is Justice
denied.
The evidence tendered in most such cases is not always of the
best. Most witnesses are scrapping the very bottom of the barrel of
their memories. In some cases the guilty man gets away with it
because either vital witnesses have since died or have moved to other
places without informing the police. Yet

in some cases potential witnesses to a crime refuse

/to
give ...

-2-

to give statements to the police because they fear being
made to attend court endlessly. In this same Court in the case of
Bofifi
v Rex, L.L.R. 1 at 3 (an appeal against the severity of
sentence) it was said:

"There can be no excuse for this type of delay in
the administration of Justice. Magistrates and the staff appointed to
assist
them must ensure that appeal records are completed as soon as
possible

The Registrar in turn must put appeals

down for hearing with dispatch, particularly in those
cases in which appellants are serving their sentences."

The underlying principle in this except is applicable in
the present case. There have been trials of cases heard in this Court
of
crimes committed much later than the date when the present accused
is alleged to

have
committed the crime with which he today stands

charged. There have been accused who were released on
bail

whose cases have been completed with dispatch. Accused,
on the contrary, has been in custody all along. Inordinate delays in
bringing
the accused to trial has been the subject of many a
judgments.

On the 28th November 1981 Bishop Molatoli (hereinafter
referred to as Bishop) was preparing a birthday party for his wife
Queen. The
beverages (including beers and spirits) and snacks
(hereinafter referred to as food) were at the party that evening.

/Difa ...

-3-

Difa kept the keys to the room in which the food was
kept. Another room situated at another block of rooms (See Exh."A")
was used for dancing (or giving according to one's taste). Difa left
for the Hilton Hotel to obtain ice-blocks. On his return he
went to
the room whore the food was kept. He was accompanied by Oueen and
Nombulelo. After a very short time Oueen left the room
to call her
husband Bishop.

Upon entering the room where the food was kept, Bishop's
attention was drawn to the fact that the window was open and window
pane
broken. A few items were missing amongst which were half a dozen
cans of castle beer. On the arm of the sofa shoe prints were
apparently
left. The suspicion fell almost immediately upon people
uninvited, people who wore tender shoes. Accused and his friend, one
Bafo,
wore such shoes. There was apparently another person also.
However, when accused and Bafo were invited from the dancing room to
the room where food was kept, accused put up such resistance that he
was seen in possession of a shiny object in his left hand.
When this
happened Difa, Bishop and Queen were in the street. It should here
be explained that when one moves from the room where
the party would
be held to the room where the food was kept, one can walk along the
pavement or in the street before entering another
gate to the room
where the food was kept. However, because of the noise many people
had gathered at this stage. Queen alerted her
husband

that accused was in possession of a "knife".
The latter

/gathered ....

-4-

gathered stones and so did Difa and possibly other
by­standers. Bafo immediately advised the accused to clasp his
knife and put
it in the pocket. The latter obliged.

They moved into the room where food was kept. Accused's
foot was lifted even though he tried to refuse. Nombulelo says she
saw a
knife in the hand of the accused. It was already opened.
However, the print on sofa differed from the design of the sole of
accused's
tender shoe. The same was true with Bafo. They were all
the time in possession of a tin of castle of beer - similar to the
beer
cans kept in the room. After the comparisons were made, accused
and Bafo were told to leave the premises as they were not invited.

They were taken to leave off at the street and it is said they loft.
When these events took place, the guests had not yet been served
with

anything. Apparently when accused and Bafo were

questioned about the cans of beer they simply replied

that they had bought them at 'Maletltlo's.

Later in the evening, Nombulelo was in a room in the
same block as where the jive session w?s held. She made a report.
Deceased left
the room followed by Nombulelo who stood on the
doorway. At that moment the accused was outside, Bafo was talking to
Queen. Deceased
then requested to have a private talk with the
accused who had been coming in the direction of the deceased and the
latter was walking
towards him.

/However

-5-

However, as soon as the deceased emerged accused
retreated and deceased apparently kept coming towards him. He was
now not saying
anything. Accused had one of his hands at the back.
Suddenly, he lunged forward and gave a movement with one hand as
though he
was slapping the deceased. The latter immediately clutched
his upper part of the chest and part of the neck for he was slightly
in
a bending position. Accused immediately ran away and so did Bafo.
The deceased tried to follow them but soon returned. He staggered
and fell. He was helped by Queen and Nombulelo. He was placed in a
car. He had bled where he had. fallen and was still bleeding.
His
white skipper on one side was soaked in blood. Nombulelo joined him
in the car.

On the way he ceased to breathe. He was pronounced dead
at the hospital.

The depositions of identification of the deceased and
the doctor who pronounced him dead at the preparatory

examination were admitted as evidence at this trial.

Dr. Mosotho, who certified the deceased dead on his
arrival in the Casualty Section of the hospital, deposes in his
evidence, inter
alia, "The patient had a wound on the left side
of the neck anterially". The wound in his view had been
"inflicted
within twelve hours of admission and was caused by a
sharp object." He only noticed that the "Clothes of the
patient were
stained with blood."

/Dr. Titi ...

-6-

Dr. Titi Mohapi performed the post-moterm examination on
the body of the deceased. She found that death was due to
"Exsanguination
due to large tear in a major blood vessel."
There was an "oval"shaped wound with clean edges at the end
of the neck
just above the medial end of the right clavicle. Wound
(was) 2 cm x 1 cm. Very deep extending into the plural cavity and
penetrated
through lung (Probe). No other wounds or fractures."
The large blood vessel which was torn, was the "jangular vein".
There had been massive haemorrhage of blood into the chest.

D/L Sgt. Molefi deposed briefly that, inter alia ,
accused had informed him that he had fought because he was being
attacked. He was
in the company of Bafo. After the fight he fled to
Lithoteng (which was his home) Upon being asked where the knife was
he said it
was at Lithoteng (at his home). He was taken there. He
looked for it where he said he had buried it. He dug the ground but
did not
find anything. He (accused) then let the witness into the
house and took out a knife amongst others in a drawer and handed it
over
to the witness. It is Exh. 1. Later another knife was handed
over to the witness by the accused's headman. However, it was shown
to the accused and he made an explanation the nature of which was
never revealed. According to my brief notes which I made as the
evidence progressed, not a single question was put in
cross-examination to this witness.

/The accused's ...

-7-

The accused's evidence is a simple one. Except what he
formally admitted through his legal representative, Mr. Isaac
Matlhare, (a
lawyer of considerable experience particularly in the
field of Criminal Law and Procedure) he says he knows nothing about
the murder
of the deceased. He says he was not any where near
Bishop's rooms. He says that all the Crown witnesses are falsely
implicating
him. Accused's attitude is one of an alibi.

Concerning exhibits 1 & 2 he knows nothing because
he saw D/L Sgt. Molefi take possession of them at Lithoteng. He does
not know
to whom they belong.

He knows Bishop by sight. He never wears tender shoes;
he heard of the death of the deceased the following Monday when it
had occurred
on a Saturday. He heard that he had not die in a
natural death. He was arrested in the street by Makhamisa. However,
it turned
out this was, in fact, at the brickwork, Cathedral area. He
tried to run away but he caught him and asked him why he had killed
Nku
(the deceased) so "cruelly". He denied that he had done
so.

The events in this case occurred over two years ago. It
is, therefore, understandable that contradictions should be present.
However,
when one looks at the salient features of this case the
witnesses are agreed. Difa knows the accused very well. He says he
saw
the accused at the rooms of Bishop that night. Bishop knows the
accused. He knew him before that evening. He says accused was
present in one of

/his ...

-8-

his rooms. Nombulelo saw accused for the first time that
night. However, there was not only sufficient light but also time
and certain
actions of the accused which drew attention to himself.
I am satisfied that her identification is sufficiently reliable. The
same
remarks apply with equal force to Queen.

By admitting the post-mortem examination report in its
entirety the accused admits the cause of death as stated therein.
The evidence
(of both doctors) clearly shows that a sharp object was
used. The witnesses say it was a "knife" but what they
describe
is seeing a shiny object in accused's hand.

There was enough light in the street from the lighting
in the next street. In addition there was moonlight. These facts
were not
disputed by the defence. Queen and Nombulelo had earlier
seen accused and Bafo. Queen knows Bafo. She stood with him talking.
The
deceased, who was not involved in the earlier episode and was
personally known to the accused said to him "My fellowman, let
us have a private talk." Instead of coming, the accused
retreated and the deceased kept approaching. Then he (accused)
struck
the fatal blow. Oueen and Nombulelo saw this. The accused and
Bafo had come back to the party despite their earlier expulsion. The
accused could not at that moment have been at Lithoteng. He was here
in Maseru. I am satisfied that accused had come back to the
party
regardless of the earlier request. I believe Queen and Nombulelo.

/Under ...

-9-

Under cross-examination, accused negates what he had
virtually admitted through his counsel not challenging the evidence
of D/L Sgt.
Molefi. He now says he hart visited Lithoteng which was
Bafo's home whereas in his evidence-in-chief he said his home was
Moshoeshoe
II. To Crown Counsel he emphatically says that the exhibit
1, belongs to a woman called Nosehlano. It was retrieved there by
D/L
Sgt. Molefi. This the Court was hearing for the first time like
many other assertions by the accused.

The contradictory nature of the accused's evidence is,
in my view, a clear indication of his state of sobriety at that
particular
point in time. I honestly do not think he recalls with
clarity what actually took place. Despite the favourable evidence
given
by D/L Sgt. Molefi he brazenly brands him a liar. Indeed he
goes further to show that he is an inverterate liar, he blames his
legal
representative who has done so much for him at this trial. He
also brands him a liar. The onus is on the Crown to prove the
falsity
of the accused's alibi. In my view that onus has been
discharged beyond reasonable doubt and the accused's explanation (and
there
was no onus on him to prove anything) has been shown to be
palpably false beyond reasonable doubt and hence could not possibly,
reasonably
be true.

There is evidence that the accused was already drinking
at the party and this was before the guests were served with either
snacks
or drinks. Nobody knows whether he had been drinking and if
so what quantity before he

/arrived ...

-10-

arrived at the party. His actions, in my view, suggest
that he was already under the weather. Otherwise I am satisfied that
the
accused is an inverterate liar. I am satisfied that he is the
person who stabbed the deceased fatally that night. However, the
burden of proving that the accused though drunk had the necessary
intention is on the Crown and not for the accused to prove his
state
of sobriety.

In the result the accused is discharged of the offence
of murder but because he acted negligently as a consequence of which
the deceased
died he is found guilty of the crime of culpable
homicide.

My assessors agree with my findings.

SENTENCE

I have listened with utmost interest to the most
impressive actress by your counsel. In my view, he has said all that
a legal representative
would say for his client in your position.

The Courts have, for a long period of time, warned
against the wanton use of a knife. It remains with them now to
impose such sentences
as will deter the likes of the accused.
Personal circumstances of each accused will be taken into
consideration. The Courts, as
usual will, where circumstances
permit, temper justice with mercy. However, that does not imply that
the accused ought to be treated
with maudling sympathy for that will
no longer be justice but would rather encourage the society to take
the law into its own hands.
(self-help)

From the evidence the deceased had had nothing to do
with the altercations. He was not even present. He was approaching
the accused
as a friend to see whether some further information
concerning the missing cans of beer could be obtained. He was
peaceful. For
that he died. He has forfeited his valuable young
life (He was about 22 years of age). His parents have lost a son
through the
negligence of the accused. It is, therefore,
understandable that he should be severely punished so as to expatiate
for his sin in
this world. The life of a fellow human-being is
sacred. Those who take it away without just cause must be punished,

/This ...

-2-

This is one of those dreadful, awful stabbing cases
which are rampant in this country. They must cease.

The Court has taken into consideration the

administrative punishment accused has already received.
The Court expresses its profound sorrow. Nevertheless, in the final
analysis
the Court must do its duty and pass, not only a deterrent
sentence, but discourage, by passing robust sentences so that there
is
no resort to self-help by the community.

The sentence of the Court is that the accused will go to
prison for a period of 10 (ten) years.

My Assessors fully endorse this sentence.

JUDGE

25th
October, 1983

For the Crown : Miss Nku For the Accused : Mr.
Mntlhare