IN THE HIGH COURT OF LESOTHO In the matter of
R E X
Delivered by the Hon. Mr. Justice B.K. Molai on the
22nd day of February, 1984.
The accused pleaded not guilty to a charge of murder on
the following allegations :
"In that upon or about the 8th February, 1983 and
at or near Qoaling in the district of Maseru the said accused did
and intentionally kill one Ts'eliso Lesenyeho."
At the commencement of the trial, Mr. Peete,
counsel for the crown, accepted the admissions, tendered on behalf of
the accused by Mr. Molapo, counsel for the defence, of the
depositions made by Dr.Moji, Thabo Nkolanyane and Tpr. Makhakhe who
were respectively P.V.1,4 and
5 at the Preparatory Examination
proceedings. As their depositions were, in terms of the provisions of
section 273 of the Criminal Procedure and Evidence Act, 1981
admitted in evidence, it became unnecessary, therefore, to call as
witnesses Dr. Moji, Thabo Nkolanyane and Tpr, Makhakhe. The crown
then called three (3) witnesses to testify in support of its case
after which the defence,as it was perfectly entitled to do, closed
its case without adducing any evidence.
The court had, therefore, only the crown evidence to
consider for determining whether the commission of the offence by the
had been established beyond a
2/ reasonable doubt
Briefly, the evidence of P.W.1, Tpr. Nthonyane, was that
at about 4.30 p.m. on 8th February, 1983, he was visiting his
at a place called Qoaling in the district of Maseru. He
was in the company of P.W.2 Tpr. Liau,
When the two police officers came to the home of P.W.I's
grandmother, they noticed a white ford car outside the yard. It had
registration numbers nor temporary permit papers. Its bonnet
was open and a person appeared to be fiddling with something in its
engine. They went to the car and found that the accused was the
person fiddling with something in its engine. P.W.2 also noticed
the car had no insurance and clearance discs.
They greeted and introduced themselves to the accused as
police officers. He reluctantly responded to the greetings, closed
and got into the car from which he came out carrying a
ladies' handbag. Asked whoso car that was, the accused replied that
to two men with whom he was going.They had left him with
the car and would come for it at about 10.00 p.m.
As it displayed no registration number plates, no
temporary permit papers, no insurance and clearance discs and the
that it belonged to people who would only come for it
at 10.00 p.m., the police officers became suspicious that the car had
stolen. In the circumstances, the police's suspicion that the
car had been stolen was reasonable.
According to P.W.2, they then informed the accused that
they were arresting him for the theft of that car. As officers
law to execute criminal warrant, the police were, in
terms of section 24(b) of the Criminal-Procedure and
Evidence Act, supra, entitled to arrest the accused. The
section reads, in part:
"24. Every peace officer and every other officer
empowered by law to execute criminal warrants may arrest without
(b) every person whom he has reasonablegrounds to
suspect of havingcommitted any of the offences mentionedin
Part II of the First Schedule; "
Theft is one of the offences mentioned in Part II of the
First Schedule. When the police officers informed him that he was
the accused explained that he could take them to a
place called Borokhoaneng where he would show then the owners of the
car. As he
said so, the accused was moving backwards before he
suddenly turned round and took to his heels. The two police officers
After running for some distance, the accused turned
round, produced a revolver with which he fired two shots at the
He, however, missed them and the chase continued.
The police officers raised an alarm to which many people in the
by joining in the chase. One of those villagers
was the deceased, Ts!eliso Losenyeho. He was running ahead
of the two police officers. As they ran after him, accused's pursuers
were throwing stones at
him.In the course of the chase, accused again
turned round and for the second time fired a shot in the direction of
the police officers.
He again missed and the chase continued. After
he had run for some distance, the accused again turned round and for
the third time
fired two shots. The deceased was hit by one of the
According to the evidence, at the time he fired the shot
that hit the deceased a hail of stones was being thrown at the
many of the stones were actually hitting him. He could
not have the opportunity to aim at any perron in particular he just
aimlessly. After the deceased was hit, the accused managed to
escape and continued running away.
P.W.3, Mojaki Thebe, testified that on the day in
question, he was in the village when he heard the alarm and the
report of a firearm.
He then noticed that many people were running
after the accused. Among the people who were chasing the accused,
4/ he knew to be ,
he knew to be a'police officer. He noticed the deceased
whom he also knew very well fallen behind a toilet belonging to a
woman by the name of Mary P.W.3 got the impression that the
accused had committed an offence of some kind and the reason for his
chase was to assist the police officer, P.W.1, to arrest him. He
immediately ran to intercept the accused.
When he appeared where the accused was, P.W.3 noticed
that he was aiming a firearm at the people who were following
him.He fired a shot at them and tried to run away. When he
noticed P.W.3, accused fired at him but missed. P.W.3 was holding a
knife with which
he threatened the accused. Accused fired another
shot at P.W.3 but missed. when the accused tried to fire a third
shot, P.W.3 heard
only a click after which the accused dropped the
firearm to the ground. P.W.3 picked it up and at the same time
caught hold of the
accused. He told him that they should go back so
that he might see his victim (the deceased). The accused who by that
time had already
sustain a bleeding head injury complied.
When they came to the deceased, P.W.3 found him lying on
his back. Ho had sustained a bleeding wound on ;he right side of the
bone and was clearly dead, P.W.3 was, on this point,
confirmed by P.W.2.
With the help of one Sempe, the deceased and the accused
were carried in a vehicle to the hospital and the police charge
The body of the deceased sustained no
additional injuries whilst it was being conveyed to the hospital.
The evidence of P.W.1 was slightly different in that
when they returned with the accused to the deceased, the latter was
was only when they arrived at the hospital that he
noticed that the deceased was already dead.
Whether the deceased died at the scene of crime or was
dead on arrival at the hospital is immaterial. What is important is
he had been shot by a bullet, fired by the accused, the
deceased died before any treatment could be given to him. There could
no suggestion, therefore of novus actus interveniens
perceptating his death.
5/ The evidence of
The evidence of Dr. Moji was that on 11th February,
1983, he performed a post mortem examination on the deceased's body
identified before him by Thabo Nkolanyane. He found that
the body had a gun wound on the right clavical region. The bullet
entered the body of the deceased thus injuring his left
lung, the diaphram and the stomach before it finally settled between
10th and the 11th rios. He removed the bullet which he handed to
Tpr. Makhakhe. He formed the opinion that death was due to
as a result of the gun wound.
There can be no doubt, on the evidence, that the
deceased died of the injury inflicted on him by the accused. The only
determination by the court is whether or not at the time
he fired the fatal shot, the accused had the requisite subjective
to kill - be it direct or legal.
The evidence adduced by the crown itself is that at the
time he fired the shot that fatally injured the deceased ,a hail of
thrown by his pursuers was falling on the accused. He could
not, therefore, have the opportunity to aim the shot at any
person and he just fired at random, presumably to scare
away the people who were trying to forcibly arrest him.
perhaps a pertinent question here is whether the action
of accused's pursuers was lawful. I have already decided that in the
of this case, the two police officers were, in terms of
the provisions of S.24 (b) of the Criminal Procedure and Evidence
Act, 1981,empowered to arrest The accused. On the evidence, the
deceased and other villagers joined in the chase against the accused
result of the alarm raised by the two police officers who were
actually seen running after him.
They believed, therefore, that the accused had committed
an offence of some sort and was escaping from a lawful arrest by the
officers who ordinarily had the authority to arrest criminal
Now, section 27(2) of the Criminal Procedure and
Evidence Act, supra. provides:
"Every person may arrest without warrant
6/ any other
any other person whom he believes on reasonable grounds
to have committed an offence and to be escaping therefrom, and to be
pursued by one whom the private person believes on reasonable
grounds to have authority to arrest the escaping person for that
There can be no doubt, therefore, that the deceased and
other villagers were, in the circumstances of the present case,
by the above cited section to come to the assistance of the
police officers and arrest the accused - even by force if need be.
follows, therefore, that in my opinion their action was likewise
lawful. The question whether or not the action of accused's pursuers
was lawful must, therefore, be answered in the affirmative.
Granted that the deceased and other pursuers were
effecting a lawful arrest of the accused, there can be no question of
in self-defence for'that defence avails only a person
who acts to repel an unlawful attack on him. However if, on the
the accused was, at the time he fired the fatal shot, not
aiming at the deceased, or any person in particular for that matter,
would seem to me illogical to infer that he had the intention to
kill. It follows, therefore; that, in my view, the question whether
the accused had the requisite subjective intention to kill must be
answered in the negative.
It does not, however, necessarily follow that the
accused must now go scot free. Even if it were accepted that at the
time he fired
the fatal shot, the accused did not aim at the deceased
or any other person in particular there can be no doubt, on the
that he was fully aware of the presence of a large number
of people around/. He nevertheless used a firearm aimlessly and for
lawfully justifiable' reason. That he could not be allowed to do.
He had a duty of care not to injure the people who were around
carrying out a lawful duty. His failure to do so constituted, in my
view, neglegence which has resulted in the unfortunate death
I take the view that the accused is guilty of culpable
homicide and accordingly convict him.
My assessors agree.
In mitigation, Mr. Molapo, on behalf of the
accused, invited the court to take into consideration the fact that,
following his conviction of assault with intent
to do grievous bodily
harm, the accused was already serving a prison term. Whatever
sentence the court might impose on him should,
concurrently with the sentence the accused was already serving in
gaol. I certainly take that into account.
I am also aware that the accused is about 3½ years old.
He probably has dependants to look after. In trying to punish the
it is unfortunately his innocent dependants who will suffer
Nonetheless, I shall not turn a blind eye on the
seriousness of the offence width which the accused has been
convicted. He has unlawfully
deprived another human being of his
life. In a number of decisions this court has repeatedly warned
that the courts of law
take a rather dim view of people who
unlawfully deprive their fellow humans of the right to live. The
warning seems to be going unheeded.
It is about time the courts of
law demonstrate their determination to deal effectively with those
who like the accused commit this
The incident of car stealing has, of late, become a real
nuisance. Consequently the law of the land empowers the police and
persons to arrest the perpetraders of this and other
related crimes. It was in the course of discharging his lawful duty
as a responsible
citizen that the deceased was unlawfully killed by
the accused. This, in my view, is an aggravating factor calling for
punishment if only the accused and those of his mind were
to be deterred from a repetition of this kind of behaviour,
8/ In the premises,
In the premises, I come to the conclusion that the
circumstances of this case warrant a sentence of seven (7) years
the accused is accordingly sentenced. The sentence
will, however, run concurrently with whatever term of imprisonment
may presently be serving in gaol.
22nd February, 1984.
For the Crown : Mr. Peete, For the
Defendant: Mr. Molapo.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law