IN THE HIGH COURT OF LESOTHO In
the Matter of :
Delivered by the Hon. Mr. Justice B.K.Molai on the
30th day of December, 1986.
The two accused have pleaded not guilty to a charge of
murdering Malefetsane Pululu, it being alleged that on or about 10th
and at or near Phuthing in the district of Mohale's Hoek
they, acting in concert with one Thapelo Maphasa, unlawfully and
killed the deceased.
Mr. Moorosi, who represented No. 2 accused in
this case, told the court that by concernt with Mr. Klass, counsel
for No. 1 accused, the defence
would not' dispute the depositions
of Kakaretso Botsane, Bokang Pululu, D/Tpr Leteba and Dr. Strupowski
who were respectively
P.W.4. 5, 6 and 7 at the proceedings of the
Preparatory Examinations. Mr. Seholbholo, for the crown
accepted the admissions mada, on behalf of the accused persons by the
defence counsels. In terms of the provisions
of S. 273 of the
Criminal Procedure and Evidence Act, 1981. the
depositions of P.W.4, 5, 6 and 7 at the Preparatory Examinations were
accordingly admitted in evidence and it became unnecessary,
therefore, to call the deponents as witnesses in this trial.
It may be mentioned that at the close of the crown case
an application was made for the discharge of No. 1 accused on the
no case had been established for him to answer. As it
will be shown in a moment, there was ample
2/ evidence .....
evidence which, on the face of it, clearly connected No.
1 accused with the commission of this offence. I declined to deal
question of credibility at that juncture and came to the
conclusion that merely looking on the fact of it, the evidence did
a prima facie case against No. 1 accused. For that
reason, the application for his discharge was refused.
As he was perfectly entitled to do, Mr. Klass
told the court that, in that event, he was closing the defence case.
Mr. Moorosi initially elected to call No. 2 accused into the
witness box. However, after a short adjournment he told the court
that, on second
thought, the defence had decided to close the case
for No. 2 accused without calling him into the witness box or leading
in his defence. For the decision in this matter we have,
therefore, only the prosecution evidence whose credibility I shall
to deal with.
Briefly the evidence of D/Tpr Leteba was that on 12th
May, 1985 he received a certain report following which he proceeded
to a place
in the area of Mekaling within the district of Mohale's
Hoek where he found a dead body of a man. The body was identified to
as that of Malefetsane Pululu. On examining it for injuries he
found that the body had sustained multiple wounds viz. two open
on the head, a wound on the right side of the chest, a wound
on the lips and a wound on the right ear. He transported the body of
the deceased in a police vehicle to the mortuary for Post Mortem
examination and it sustained no additional injuries. I shall
return to his evidence later in this judgment
The evidence of Dr. Strupowski was that he was the
medical doctor, who, on 13th May, 1985, had performed the post mortem
on the deceased's body which was identified before him by
Bokang Pululu and Chabana Rachabana. This was confirmed by Bokang
who, as has been pointed out earlier was P.W.5 at the
proceedings of the Preparatory Examination. As a result of the post
examination, the medical doctor found the following: a deep
laceration on the
3/ right cheek
right cheek, two wounds on the head, a skull impression,
a fracture on the left temporal with a sub-arachnoidal bleeding
in the death of the deceased. From the above
injuries, the doctor formed the opinion that an instrument such as a
stick could have
been used, with considerable force, to assault the
I am unable to think of any good reason why the medical
doctor should be doubted in his unchallenged evidence that the
died as a result of the injuries inflicted upon him. I am
inclined, therefore, to accept his evidence as the truth, on this
The salient question that immediately arises is whether
or not the accused are the persons who inflicted the injuries on the
and consequently brought about his death. In this regard, it
is common cause, from the crown evidence, that on the day in
10th May, 1985, there was a feast at the house of one
Tsoabiso at Mekaling, alias, Phuthing. The feast was attended by
Botsane, who was P.W.4 at the Preparatory Examination, the
deceased himself, Moeketsi Khama, Tseliso Kubetso, the two accused,
Thapelo Maphasa who is the father of No. 2 accused and many other
The court heard the evidence of P.W.I, Moeketsi Khama an
accomplice witness. It is significant to bear in mine that as such
is not merely a witness with a possible motive to tell lies
about the accused persons but peculiarly equipped by reasons of his
knowledge of the crime, to convince the unwary that his lies
are the truth. It is of utmost importance, therefore, that his
should be approached with great care so that the risk of
convicting an innocent accused may be reduced.
In his testimony P.W.1 told the court that during the
feast he was with No. 2 accused when Thapolo Maphasa told them that a
which was causing him trouble was present at the
feast and invited them to go with him for the "dog". By the
P.W.1 understood Thapelo Maphasa to mean a person who
was pestering him. He and No. 2 accused then
4/ followed ...
followed Thapelo Maphasa to a person who was walking
next to the kraals.
As it was late after dusk and on a dark night that
person was carrying a flash light. When he came to that person,
started delivering blows on him with a stick and the
person fell to the ground. P.W.1 and No. 2 accused then came and
Maphasa in his assault on that person who was trying
to rise up. He (P.W.1) hit that person on the ribs and noticed that
one of the
blows delivered by No. 2 accused landed on the head. He
saw No. 1 accused already delivering blows with his stick on that
although he did not notice when he had arrived at the scene.
After they had beaten him up, P.W.I and the two accused
returned to the feast leaving Thapelo Maphasa standing next to where
person was lying prostrate on the ground. Thapelo Maphasa was at
that stage, no longer beating up that person. After they had
left him at the scene of crime, P.W.1 did not again see Thapelo
Maphasa who had since vanished from the village.
He (P.W.I) later learned that the person they had been
assaulting was the deceased who was found dead next to the kraals. He
2 accused then decided to go for hidding at the cattle posts
from where they, however, returned after three days. They were
by the chief and elderly people of the village to go and
surrender themselves to the police in Mohale's Hoek.
Returning to his evidence, D/Tpr Leteba confirmed that
on 14th May, 1985 he met P.W. 1 and No. 2 accused. They handed their
to him and made certain explanations. He later met No. 1
accused who also gave an explanation concerning the death of the
and handed over his stick. He had, however, not been able to
meet Thapelo Maphasa who was still at large. Following their
D/Tpr Leteba cautioned and charged the two accused and
P.W.I with the murder of the deceased. He also took possession of
which he handed in as exhibits at the Preparatory
5/ The evidence of
The evidence of P.W.1 that it was suggested at the feast
that a person who turned out to be the deceased should be assaulted
to some extent, by P.W.2, Tseliso Kubetso, who also
told the court that during the feast No. 1 accused had told him that
a person he and others intended beating up. No. 1 accused
did not, however, disclose the name of that person.
Later in the night of the same day, P.W.2 received an
information that a person was seen lying prostrate next to the
kraals. He got
the impression that it might be the person No. 1
accused had threatened that he and others were going to assault at
the feast. As
it was late at night, P.W.2 did not do anything about
the information. In the morning of the following day he did, however,
the kraals where-he saw a dead body of a man whom he identified
as the deceased. He later reported to the police at Mohale's Hoek
what No. 1 accused had said to him at the feast.
I must say I carefully observed P.W.1 as he testified
from the witness box. He impressed me as a witness of the truth. I am
therefore, to accept his evidence, corroborated to some
extent by that of P.W.2, that he and the two accused not only agreed
Maphasa's suggestion, but actually assisted him, to
assault the deceased on the night in question.
That being so, there is not the slightest doubt in my
mind that P.W.1 and the two accused, acting in concert with Thapelo
did inflict upon the deceased the injuries described by
D/Tpr Leteba and Dr. Strupowski. The answer to the question I have
posted viz. whether or not the accused are the persons who
inflicted the injuries on the deceased and consequently brought about
his death must, therefore, be in the affirmative.
In assaulting the deceased in the manner described by
the crown evidence, the accused must, in my view, have realised that
likely to result. They, nonetheless, acted reckless of
whether or not it did occur. That granted, I am convinced that the
acted with the requisit sub-
jective intention to kill, at least in the legal sense.
From the foregoing, it is obvious that the view that 1
take is that the two accused are guilty of the murder of Malefetsane
and I accordingly convict them.
My assessors agree with this finding.
B.K. MOLAI JUDGE.
30th December, 1986.
For Crown : Mr. Seholoholo, For Defence : Mr.
Klass for 1st Accused
Mr. Moorosi for 2nd accused.
The accused have already been convicted of murder. In
terms of the provisions of S. 296(1) of the Criminal Procedure
and Evidence Act, 1981, I am now required to state whether
there are extenuating circumstances i.e. factors, connected with the
commission of the crime
tending to reduce the moral blameworthiness
of the accused's act.
In this regard there is evidence that the two accused,
P.W.1 and a certain Thapelo Maphasa assaulted and killed the deceased
feast where they had been drinking beer which was free-for-all.
Granted that they had been drinking beer at the feast,
there is no doubt in my mind that at the time they joined Thapelo
the assault on the deceased, the accused were under the
influence of intoxication.
It is a well-known fact that intoxication affects
the mind of a man so that he does the things he would
not do when sober. This may properly be taken into account as a
to reduce the moral blameworthiness of the accused's
act - vide page 363 of the South African Criminal Law and
Procedure(Vo.II) 1970 ed. by Hunt.
From the foregoing it is obvious that the view that I
take is that by reason of the accused's intoxication, extenuating
do exist in this case and the proper verdict is that of
"guilty of murder" with extenuating circumstances.
My assessors agree.
SENTENCE : Accused 1 : 8 years imprisonment Accused 2 :
6 years imprisonment.
12th January, 1907 For Crown : Mr. Seholoholo, For
Defence : Mr. Klass for Accused 1
Mr. Moorosi for Accused 2.
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