IN THE HIGH COURT OF LESOTHO In the matter
Delivered by the Honourable Acting Judge, Mr. Justice
M.L. Lehohla, on the 15th day of August, 1906.
This is a judgment to be read in cunjontion with the
ruling I made on 6th August, 1986. The ruling is attached.
The accused is charged with the murder of one
Malefetsane Nkhekhe. The killing is alleged to have occurred on 22nd
P.W.1 Sebatli Nkhekhe gave sworn testimony in which he
said he is the son of the deceased. On 21st August, 1986, he had
his father's (deceased's) cattle in a kraal next to the
latter's household. At around dawn on 22nd August, 1985, P.W.1 was
by his father, the deceased, who informed him that not one
of the cattle which P.W.I had penned up on the evening of 21st
was in the kraal. The witness maintained that prior to this
occasion there had never been any history of these cattle either
out or breaking out of the kraal. He and deceased went
looking for them and finally traced them to accused's place where
penned in a kraal fenced in by barbed wire. Accused's house
is also in this
When the two approached accused's house, accused also
appeared from inside his house. Another matter worth noting is that
the report that cattle were missing from the Kraal,
P.W.1 did not bother going to check at the kraal to see what clues he
as possible means through which the cattle effected
their escape from the kraal.
On coming to accused's place the two saw their cattle in
accused's kraal actually mingling among them and constantly being
by a bull which was tupping a heifer which was on heat.
P.W.1 was about 15 paces away from accused and deceased
when the latter were engaged in a lew-pitched conversation which he
hear or follow but at the end of which his father commanded
him to "strike out the cattle and let's drive them home".
all intents and purposes in this witness's view the conversation
hod been friendly and the command he received from his father was
coping stone. In P.W.1's words "they seemed to have clinched the
A sudden turn of events occurred even as the witness was
beginning to enforce his father's command. As he was driving the
and chasing after the bull, whose natural instincts
dictated against separation from accused's heifer which was on heat,
a gun report. In response to that he saw his father
fallen about seven paces from where the accused was standing.
Under cross examination by Mr. Sooknanan for the
defence, P.W.1 was adamant that the discussion between accused and
deceased was friendly. He insisted that after the friendly
conversation between deceased and accused, he saw accused go to his
house and come back with a gun and shoot the deceased. P.W.1
that he or his father had put their cattle to graze on accused's land
To the question "You did that (let your stock to
destroy accused's crops) a number of occasions ?"
P.W.1 replied "He (accused) has been implicating me
thus always. He even took me before the chief and threatened to kill
P.W.1 admitted that at the Preparatory Examination he
was properly recorded as having said "when I heard the first gun
I ran away" but he qualified this by saying he also saw
his father fall immediately after that gun report.
Defence counsel tried to bring to P.W.1's attention the
fact that as he was pre-occupied with carrying out his father's
to drive out the cattle he could not have seen what had
preceded the gun report nor heard what had been said between accused
deceased. However, P.W.1 insisted that nothing untoward had been
said or done between those two.
P.W.1 was hard put to it to give a satisfactory
explanation how he could be telling the truth by saying
his father, immediately prior to the gun report which detracted his
attention from the cattle to the place of encounter between
deceased and accused, had done nothing.
P.W.1 denied that he and deceased attacked accused with
sticks and stones.
A new complexion to the incident was given by P.W.2
Mamockande Tsumane who is accused's daughter-in-law. She
testified that in the early hours of 22-8-85 accused came and knocked
her door demanding a key to a house which is not in regular use.
She complied. Accused left. P.W.2
immediately thereafter she heard accused say that he
cattle a rope for tying cattle as he had seized some?.
to the well to draw water a little while later. On
coming back she heard accused say to deceased"leave the cattle
alone and go
to the chief to report and come back with the chief's
messengers so that you can have the cattle." In reply to that
"These cattle will come out of the kraal or else
someone will die." "Strike those cattle and let's drive
She saw accused moving towards his house. She also saw a
stick being thrown towards him. Immediately thereafter she saw
deceased face each other in a close encounter. A gun
report followed. In close succession to that gun report, two others
and she saw deceased fall.
She had earlier heard accused say "leave those
cattle for I have impounded them already." She said she did not
being cornered at the fence nor did she see or hear
stones being thrown at him.
P.W.3 Chieftainess 'Maseoehla Matsoete testified that
all the participants mentioned above are her subjects. She knew of
between accused and deceased. Accused had previously been
complaining to her about cattle which destroy his crops at night in
fields, yet he was not able to find those responsible for letting
their cattle graze on his land.
She at one time mounted and investigation which led her
to believe that deceased and his boys often grazed their stock on
field at night.
She further testified that P.W.1 on the morning after
P.W.X's father had died, her investigations had revealed that his
usually and on that day had grazed on accused's land,
and that on the night in question his father had told him that the
missing and he could not find them on accused's land
where he knew them to be because by then accused had xx driven them
had impounded them in his kraal.
The Preparatory Examination record to which she was
referred shows that P.W.2 heard the words uttered by accused in the
form "Do not throw the stick at me man." Under
cross examination P.W.2 admitted that these
-6-words conveyed to her that someone was being
Camping on the trail of that is the following text:-
"You didn't see with what he was being attacked
No, I couldn't see with what because
it was dark.
You saw a stick being raised ? I took it
it a stick was thrown at him because with aid of morning
light we saw that stick lying there.
What words relating to the stick that you didn't
see were uttered by the accused ? How
come you throw the stick at me."
P.W.2 said she could not deny accused's contention that
stones were being thrown at him. Her reason is that she could not see
such stones as it was dark nor could she hear their thuds as they
drop on the ground or sounds as they struck against objects lying
the ground. But she was adamant that accused fired into the air twice
with his gun and it was when the stick was being thrown
at him that
she heard a third gun report consequent upon which
deceased fell down and remained slumped on the ground.
was unable to say whether/was firing at random. From
her narration of the firing incident it was common cause
that the firing was effected at rapid succession and very, very short
As rendered by this winess, it appears that the duration
of the firing of the three shots lent itself to the description:
you could say Jack Robinson.
P.W. 4 Detective Sergeant Sekhibane corroborated the
evidence already elicited by Defence Counsel from P.W.2
-7-and P.W.3 that accused said he was attacked by
The application for the discharge of the accused at the
close of Crown case was based on the ground that accused was
when the shooting occurred. He was under attack as
the evidence revealed.
The Court found it significant that the story relating
to the right of private defence came from Crown witnesses. According
the duty of the Crown where a right of private defence is
raised, is to negative such evidence. It can only negative it if it
from the defence side. In this case the opposite has occurred.
Crown witnesses showed existence of private defence. Where such is
the case the Court cannot ignore evidence possibly showing existence
of private defence.
It appears to me that P.W.1 as was rightly pointed out
by Learned Counsel for Defence that he had problems. Deceased was his
He and his father were involved in this reprehensible and
irresponsible exercise of letting their stock graze on accused's land
night. He spoke of one gun shot that was fired consequent upon
which his father fell and died, followed by one more fire shot the
purpose of which he was at pains to explain. P.W.2 heard three gun
reports. P.W.4 found two spent shells in the vicinity. The ground
been disturbed already. While P.W.1 deserves some sympathy for the
stance he adopted of a hen with one chicken as demonstrated
reference to the fact that his father used to beg for fodder from
the accused and was each time obliged with same, in an
attempt to show absence of bad blood between the two and also give
to his testimony that the discussion prior to the fatal
shooting was amicable he was in a cleft stick to explain how it could
in his own mouth to deny knowledge of bad blood between them in
the face of his own evidence that accused had threatened to kill
father over a dog which had worried the accused.
Contrasted and compared with P.W.4's testimony which was
given freely and convincingly without any attempt to favour either
(the same applies for P.W.2's), P.W.1's reticence and
evasiveness on the issue of bad blood between accused and deceased
account for the milk int he coconut; namely that he himself
was a party to letting cattle graze on accused's land and destroy his
crops. He cannot be truthful in his story that the discussion between
accused and deceased was friendly on that fateful day. His
accused had no right to impound the cattle in his own kraal is
demolished by the Chieftalness's story that as the communal
been out of use due to delapidation and consequent insecurity,
accused's kraal was regarded and known by all her subjects
lawful pound. The fact that he and his father set out for accused's
place to retrieve the cattle on the ground that the latter
wrongly penned them there instead of at the communal pound is frowned
upon. If anything, it indicates that inspired by this feeling
the cattle were wrongly penned his father and he were bent on taking
the cattle out by force. It also accounts for the fact
word in season; that he go to the chief's place where he
would be given messengers who would in turn come and have the dispute
There is no onus on the accused to prove self-defence. Rex
vs. THEKO KUMI CRI/T/7/81 by EVANS J. (unreported) at Page 4.
Consequently there doesn't seem to be any need to put
the accused under the necessity to answer. The Crown has established
of private defence. The Court cannot ignore that. Mr.
Seholoholo for the Crown very properly concedes.
Accused is acquitted and discharged. My assessors agree.
For the Crown : Mr. Seholoholo For Defence : Mr.
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