IN THE HIGH COURT OF LESOTHO In the matter
MOJALEFA MOTSELEKATSE KHABANE MASELOA
Delivered by the Hon. Mr. Justice B. K. Molai on the
23rd day of June, 1986.
The accused appear before me charged with the crime of
murder, it being alleged that on or about 7th April, 1985 and
at or near Ha Motsoene in the district of Berea they each or both,
and intentionally killed one Fusi Motselekatse.
At the commencement of this trial Mr. Pitso, who
represented the accused, informed the court that the defence was
admitting the depositions of Puseletso Litali, 'Malelingoana
'Mamapele Matsitsa, 'Maseoeng Litali, Macheli Motselekatse and Dr.
Patrick Sendyose who were, respectively, P.W.1, P.W.2,
P.W.7 and P.W.8 at the proceedings of the preparatory examination.
Mr. Thetsane, for the Crown, accepted the admissions, made by
the Defence counsel, and the depositions became evidence, in terms of
of S. 273 of the Criminal Procedure and Evidence Act,
1981. It was therefore, unnecessary to pall the deponents as
The Court heard the evidence of P.W.1, L/Sgt. Masupha,
who testified that on 7th April, 1985 he received a certain report
which he proceeded to the house of .'Mamapele Matsitsa, in
the village of Ha Motsoene where he found a dead body of a man inside
the house. The body was identified to him as that of the deceased.
There were three pieces of a broken stick found in the house.
took possession of, and handed, them in as exhibit 1 in this trial.
P.W.1 went on to say after it was identified to him he examined
body and found that it had sustained multiple injuries on the neck,
shoulders, arms, chest, armpit, thighs, legs and feet. He
altogether 17 wounds on the body of the deceased.
After examining it P.W.1 conveyed the body of the
deceased to T.Y. mortuary and it sustained no additional injuries.
He then continued
with his investigations.
On 13th May, 1985 No.1 accused surrendered himself to
the police when he cautioned and charged him with the murder of the
Whilst in police custody No.1 accused gave him information
following which he (P.W.1) and the accused proceeded to No.2
home at Ha Makola. They found No.2 accused not in. His
wife was, however, in and she handed a sword to P.W.1 who took
of it. It is exhibit 2 before this Court.
When later on No.2 accused also surrendered himself to
the police, P.W.1 confronted him with exhibit 2 and he identified it
property. This is, however, denied by No.2 accused.
It is to be observed that when he was asked whether
before No,2 accused could tell him that exhibit 2 was
his property he had warned him that he was a suspect and therefore,
to say anything and should he decide to do so, that would
be reduce to writing and could be used as evidence against him at a
stage, P.W.1 told the court that he did so only after No.2
accused had identified exhibit 2 as his property. When he was made
realise that he should have warned the accused whom he already
regarded as a suspect, in terms of the Judges' Rules before the
could say anything to him P.W.1 somersaulted and said he had,
infact, administered the warning before No.2 accused could speak.
I am sure that P.W.1 was not being truthful to this
Court. The truth of the matter is that he did not warn the accused
at all, and
he was committing perjury by making two contradictory
statements on oath before this Court.
Be that as it may, the evidence of P.W.1 that he found
the body of the deceased with multiple injuries was corroborated by
Dr. Patrick Sendyose in whose deposition, at the proceedings
of the preparatory examination, he told the Court that he was the
doctor who performed the post mortem examination on the body
of the deceased. He confirmed the evidence of Macheli Motselekatse
that the latter had identified the body as that of Fusi Motselekatse,
the deceased. The doctor's findings also confirmed that there
altogether 17 injuries as described by P.W.1. He formed the opinion
that although some of the injuries could have been inflicted
blunt instrument, the bulk of them was consistant with the use of a
sharp instrument. From his findings Dr. Patrick
Sendyose concluded that death was due to Cardiac
Tamponede and haemothorax resulting from the injuries inflicted
on the deceased.
As the medical evidence was not challenged, I can think
of no good reason to disbelieve it. - I am prepared, therefore, to
that the deceased died as a result of the injuries inflicted
The question that immediately arises is whether or not
the accused are the persons who inflicted the injuries that deprived
of his life. In this regard, it is, perhaps, helpful to
outline briefly, the events leading to this unfortunate death of the
It would appear that prior to 1976 a woman by the name
of Makaizer owned a field in the area of Ha Motsoene. There was a
she went to work in the Republic of South Africa. Before
leaving for her place of work 'Makaizer and the deceased concluded an
whereby the latter was to plough the field on half shares
with her. In 1976 P.W.2, Tseliso Motsoene, the chief of the area
that the deceased was no longer ploughing the field on half
shares with 'Makaizer. He was taking all the harvest from the field
to his house and using it for himself. P.W.2 was disatisfied with
this state of affairs. He then wrote a letter to 'Makaizer notifying
her that as she was no longer using it the field had reverted to the
chieftainship for reallocation. He accordingly reallocated
to one Kori Motselekatse, the father of No.1 accused in 1976. I must
point out that the fact that the deceased took all
the harvest from
that field for his own benefit in breach of his agreement with
'Makaizer was no basis on which P.W.2 could lawfully
deprive that woman of her rights on the field. It was a matter
the deceased and 'Makaizer. P.W.2 had no business in
Be that as it may, the decision of P.W.2, depriving
'Makaizer on her field and re-allocating it to Kori Motselekatse,
set aside and rightly so in my opinion, by P.W.2's
senior chief and the decision of the senior chief was made known to
who, however, ignored it and continued to plough
the field on half shares with his son-in-law, No.2 accused.
The deceased who, as has been pointed out earlier, had
been using the field following his arrangement with its owner was
the atitude of Kori Motselekatse who was, in fact, his
own elder brother. This created bad blood between the deceased and
In their evidence the two accused told the court that
they normally worked in the mines, in the Republic of South Africa.
they were on leave here at home in Lesotho when they received
reports that the deceased was in the habit of unlawfully taking
pumpkins and watermellons from the field.
On the day in question, 7th April, 1985, the two accused
were returning to their place of work, in the Republic of South
a short leave at home. As they walked towards the
bus stop, outside the village,the two accused noticed that there was
a person in
the field. They decided to go to that person and find
out what business he had in the field.
As they approached the field, that person left and took
the direction towards the village of Bethania. They identified that
as the deceased who was clearly carryingsomething in his
blanket. The accused, however, went to" the field and inspected
for any possible damage. They found that maize cobs had
definitely been recently broken and taken away. They then followed
direction taken by the deceased-
As they appeared in the village the two accused saw the
deceased next to a church and he was giving maize cobs to people who
to church for Easter services. When he saw the two accused
coming towards him. the deceased left the people to whom he had being
giving away the maize cobs. The accused followed and caught up with
the deceased when he was next to the house of 'Mamapele Matsitsa
1 accused was the first to come to the deceased and Wo. 2 accused was
following about 9 paces (indicated) behind.
When he caught up with him No.1 accused asked the.
deceased why he had been causing damage in the field by taking maize
deceased's reply was that he would not be talked to in
that manner by small children. No.2 accused then rushed at the
the latter, who had pulled out a knife tried to stab
him. No. 2 accused caught hold of the knife which cut him on the
however, managed to take the knife from the deceased who
then ran into the house of 'Mamapele.
When the deceased ran away, No.1 accused went to his
house leaving No 2 accused still holding the deceased's
knife where the latter had injured him. At his house
which was about 50 paces (indicated) away No 1 accused armed himself
stick exhibit 1, and returned to No 2 accused. They then
followed the deceased to the house of 'Mamapele which was also a
of about 50 paces (indicated) from the house of No 1
accused. I shall return to the evidence of the two accused in a
In her evidence 'Malelingoana Patela testified that she
was a married daughter of 'Mamapele Matsitsa. On 7th April . 1985
visiting her maiden home at Ha Motsoene when, in the early
morning, the deceased came to their house. The deceased appeared
and asked for a brown paper with which to prepare his tobacco
for a smoke.
About ten (10) minutes after the deceased had come into
the house, the two accused also arrived. As they entered into the
two accused passed her next to
the door way, kicked aside her smell child and headed
straight to where the deceased was seated in the house
They were clearly in a fighting mood and so the witness quickly
picked up her
little child and cleared out of the house, leaving her
mother. 'Mamapele Matsitsa, who had. been making her bed. The
not, therefore, see what took place in the house
between the two accused . and the deceased.,
Once she was outside the house 'Malelingoana. raised an
alarm by shouting: "Here are people fighting in the house."
the instruction of 'Mamapele who had also come out of the house
and was raising the alarm she ('Malelingoana) rushed to the chief
made a report. This was confirmed
by P.W.2 who said he then went to 'Mamapele's house
where he found the deceased dead. He then sent a report to the
police. The evidence
of 'Malelingoana was, in as far as it is
material, also corroborated by that of 'Mamapele Matsitsa.
Both 'Maseoeng Litali and Puseletso Litali confirmed
that, on the morning in question, they heard the alarm raised by
and 'Mamapele. As a result they proceeded to the
latter's house where they found the deceased dead.
Returning to their evidence, the two accused told the
court that when they followed the deceased No 2 accused was the first
into 'Mamapele's house and he was immediately followed in by
No 1 accused. Although he denied that after passing 'Malelingoana
to the door way he kicked aside her little child, No.2 accused
admitted that he went straight to the deceased and
stabbing him with the knife he had taken from him.. He
denied, therefore, to have used the sword that was
allegedly received from his wife. No.1 accused also confirmed that
as he followed
No.2 accused into 'Mamapele's house the latter was
already stabbing the deceased with his (deceased's) knife. He joined
in his assault on the deceased by delivering blows on
the latter with his stick, exhibit 1, which even broke into pieces.
went out leaving- the knife and the broken pieces of
exhibit 1 in the house.
Well., if in his own mouth No.1 accused was aware that
Mo 2 accused was assaulting the deceased with a knife and joined him
the deceased blows with his stick
deceased. The accused, therefore, knew the person they
wanted. That being so, it cannot be said they were so provoked as not
what they were doing. In the premises, the accused's
provocation, if any at all, cannot have been such that it could
crime of murder to a lesser offence.
Finally the fact that the accused inflicted on the
deceased, a total number of 17 wounds, many of which were
concentrated on the upper
part of the body, leaves no doubt in my
mind that they must have realised that death was likely to result.
They, nonetheless, acted
reckless of whether or not death did occur.,
That being so, it must be accepted that when they assaulted the
deceased in the manner
they did, the accused had the subjective
intention to kill.
I would, therefore, find both accused guilty of murder
My assessors agree.
JUDGE. 20th June, 1986,
There was evidence, which I accepted, that the .
deceased was seen unlawfully taking maize cobs from the field which
and Kori Motselekatse, the father of No.1 accused, had
cultivated albeit wrongfully. That, in my view, was provocation to
accused by the deceased. Even if it were such that it could
not reduce the crime of murder to culpable homicide such provocation
must properly be taken into consideration for purposes of extenuating
Moreover, it would appear, from the evidence that the
accused did not actually plan or premeditate the death of the
itself the absence of premeditation seems to be a
factor tending to lessen the moral blameworthiness of the crime
by the accused See page 365 of Hunt in his invaluable work
: South African Criminal Law and Procedure Vol. 11.
From the foregoing it seems to me there are extenuating
circumstances in this case and I find accordingly. Both my assessors
with this finding.
The court was invited to take into account, for the
benefit of the accused, the facts that both accused are first
offenders, the deceased
is their own relative, by unlawfully taking
the produce of the field admittedly cultivated by No.2 accused and
the father of No,1
accused the deceased was himself provocative to
the accused and P.W.2's unjust decision to re-allocate to Kori,
which the deceased had all along been using was the
-12-real cause of the accused's trouble in this
I am prepared to consider these factors. However, even
if the deceased had wronged them the accused should not have taken
into their own hands and killed him. They should have taken
the deceased to Court to be punished in due process of the law.
Moreover this Court has, time and again warned that it
will take a rather diem view of people who show no respect for the
their fellow humans. If only a repetition of this kind of a
thing were to be brought to a halt it is necessary to impose upon the
accused sentences that will be commencerate with the seriousness of
the offence they have committed.
I have taken into consideration that although it was
found that the two accused had acted in consert in their assault on
and were, therefore, both rightly convicted of murder,
the bulk of the 17 wounds on the deceased were however, inflicted by
accused and for that reason I have come to the conclusion that
the sentences of 10 years' imprisonment and 8 years' imprisonment
No.2 accused and No.1 accused, respectively, are appropriate. They
are accordingly sentenced.
JUDGE. 23rd June, 1986.
For Crown : Mr. Thetsane For Defence : Mr.,
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