IN THE HIGH COURT OF LESOTHO In the matter of :
v LEBOHANG MOLIBETSANE
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
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
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 statements to the police because they fear being
made to attend court endlessly. In this same Court in the case of
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
them must ensure that appeal records are completed as soon as
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
crimes committed much later than the date when the present accused
is alleged to
committed the crime with which he today stands
charged. There have been accused who were released on
whose cases have been completed with dispatch. Accused,
on the contrary, has been in custody all along. Inordinate delays in
the accused to trial has been the subject of many a
On the 28th November 1981 Bishop Molatoli (hereinafter
referred to as Bishop) was preparing a birthday party for his wife
beverages (including beers and spirits) and snacks
(hereinafter referred to as food) were at the party that evening.
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
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
Upon entering the room where the food was kept, Bishop's
attention was drawn to the fact that the window was open and window
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
left. The suspicion fell almost immediately upon people
uninvited, people who wore tender shoes. Accused and his friend, one
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.
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
that accused was in possession of a "knife".
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
knife in the hand of the accused. It was already opened.
However, the print on sofa differed from the design of the sole of
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
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
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.
the room followed by Nombulelo who stood on the
doorway. At that moment the accused was outside, Bafo was talking to
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
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
was slapping the deceased. The latter immediately clutched
his upper part of the chest and part of the neck for he was slightly
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.
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
alia, "The patient had a wound on the left side
of the neck anterially". The wound in his view had been
within twelve hours of admission and was caused by a
sharp object." He only noticed that the "Clothes of the
stained with blood."
/Dr. Titi ...
Dr. Titi Mohapi performed the post-moterm examination on
the body of the deceased. She found that death was due to
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
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
find anything. He (accused) then let the witness into the
house and took out a knife amongst others in a drawer and handed it
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 ...
The accused's evidence is a simple one. Except what he
formally admitted through his legal representative, Mr. Isaac
lawyer of considerable experience particularly in the
field of Criminal Law and Procedure) he says he knows nothing about
of the deceased. He says he was not any where near
Bishop's rooms. He says that all the Crown witnesses are falsely
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
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
on a Saturday. He heard that he had not die in a
natural death. He was arrested in the street by Makhamisa. However,
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
(the deceased) so "cruelly". He denied that he had done
The events in this case occurred over two years ago. It
is, therefore, understandable that contradictions should be present.
when one looks at the salient features of this case the
witnesses are agreed. Difa knows the accused very well. He says he
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 rooms. Nombulelo saw accused for the first time that
night. However, there was not only sufficient light but also time
actions of the accused which drew attention to himself.
I am satisfied that her identification is sufficiently reliable. The
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.
(of both doctors) clearly shows that a sharp object was
used. The witnesses say it was a "knife" but what they
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
disputed by the defence. Queen and Nombulelo had earlier
seen accused and Bafo. Queen knows Bafo. She stood with him talking.
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)
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
regardless of the earlier request. I believe Queen and Nombulelo.
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
II. To Crown Counsel he emphatically says that the exhibit
1, belongs to a woman called Nosehlano. It was retrieved there by
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
point in time. I honestly do not think he recalls with
clarity what actually took place. Despite the favourable evidence
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
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
of the accused's alibi. In my view that onus has been
discharged beyond reasonable doubt and the accused's explanation (and
was no onus on him to prove anything) has been shown to be
palpably false beyond reasonable doubt and hence could not possibly,
There is evidence that the accused was already drinking
at the party and this was before the guests were served with either
or drinks. Nobody knows whether he had been drinking and if
so what quantity before he
arrived at the party. His actions, in my view, suggest
that he was already under the weather. Otherwise I am satisfied that
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
In the result the accused is discharged of the offence
of murder but because he acted negligently as a consequence of which
died he is found guilty of the crime of culpable
My assessors agree with my findings.
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.
From the evidence the deceased had had nothing to do
with the altercations. He was not even present. He was approaching
as a friend to see whether some further information
concerning the missing cans of beer could be obtained. He was
that he died. He has forfeited his valuable young
life (He was about 22 years of age). His parents have lost a son
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 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
the Court must do its duty and pass, not only a deterrent
sentence, but discourage, by passing robust sentences so that there
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.
For the Crown : Miss Nku For the Accused : Mr.
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