CRI/T/38/86 IN THE HIGH COURT OF LESOTHO
In the matter of
Delivered by the Hon. Mr. Justice B.K. Molai on the
1st day of October, 1987.
The accused is before me dp a charge of murdering Molefi
Moholoholo, it being alleged that on or about 2nd May, 19B6 and at or
Mafeteng Reserve in the district of Mafeteng he unlawfully and
intentionally killed the deceased., He has pleaded not guilty to
It may be pointed out that at the start of the hearing
of this trial Mr. Khauoe who represents the accused told the
court that the defence would not dispute the depositions of Pheello
Selinyane, Lehlohonolo Ramarothole,
Mamase Mohaleoamathe, Samuel
Sebata, Seabata Ralitlhare , Ralipampiri Ralitlhare, re, Selomo
Hlalele and Tsoanelo Masoetsa who were
6,7,8,9,11 and 12 at the proceedings of the Preparatory Examination.
Mr. Mokhobo for the crown accepted the admissions made by the
In terms of the provosions of section 273 of the
Criminal Procedure and Evidence Act, 1981, the
depositions of P.W.1,2,3,4,6,7,6,9,11 and 12 at the
Preparatory Examination proceedings became evidence and it was
unnecessary, therefore, to call the deponents
as witnesses in
2/ The testimony .....
The testimony of Selomo Hlalele was to the effect that
he was a driver at Le Joint Restaurant in the township of Mafeteng.
night of 2nd May, 1986 he received a certain report following
which he proceeded to the front of the Restaurant where he found
the deceased lying on the ground apparantly injured. He drove his
vehicle and rushed the deceased to Mafeteng Government hospital
which he went to report at the police charge office. The deceased
sustained no injuries whilst he was being transported from
restaurant to the hospital.
By the consent of the parties a post-mortem Examination
report compiled by a certain Dr. Schumacher who, I was told, had
the country and was, therefore, not available to testify
in this trail was handed in from the bar as exhibit "A".
to the post-mortem examination report, on 9th May, 1986 Dr.
Schumacher conducted an autopsy on the dead body of a 22 years old
The body was identified as that of the deceased by Seabata
Ralitlhare and Ralipampiri Ralitlhare. The autopsy revealed a single
stab-wound which had cut through the fifth rib penetrating into the
heart. The pericardial sac and the pleura were full of blood.
those findings the medical doctor concluded that the deceased had
died as a result or the stab wound.
I have no good reason to doubt the medical doctor 's
conclusion that the deceased had died as a result-Df the stab-wound
him., The question that immediately arises for the
determination of the court is whether or not the accused is the
person who inflicted
the injury and, therefore brought about the
death of the deceased.
In this regard, the evidence of 12 years old Tseliso
Mohaleoamathe was that on the late evening or 2nd May, 1986 he and
small boys, Pheland and Lisema, were playing next to the
home of one
3/ Monaheng when ......
Monaheng when their ball ran into the road. Phelane
went to collect the ball but the deceased who was apparently passing
on the road
caught hold of and dragged him away. Tseliso and Lisema
asked him where he was taking the boy to but there was no response
deceased. When he came to a place called White Cafe the
deceased stood outside the door still holding Phelane. At that time
noticed his father inside the cafe and pleaded with him for
help. I shall return to his evident in a momenta
The evidence of Pheello Selinyane was that he was the
father of Phelane. He confirmed the evidence of Tseliao
at about 6.45 p.m. an the evening in question he
was inside White Cafe when he heard his 11 years old son, Phelane
help. He went outside the cafe and found the deceased
hulding him. Tselisa Mohaleoamathe and another bay whose name he did
were nearby. According to him Pheello Selinyane enquired
from the deceased what the matter was. The deceased politely replied
that Phelane had been playing in the road and he was merely
reprimanding him. Realising that the deceased was very drunk,
Selinyane took the boy from him and left for his home. On
the way they met two boys one of whom was the accused. He knew then
the boys who were employees of one Lereko. Accused and his
companion asked where the person who had taken a child was. In reply
Pheello Selinyane told them that he had left that person at White
Cafe and he seemed to be drunk. He declined the invitation of the
accused and his companion that he should return with them
cafe. The accused and his companion then requested Tseliso
Mahaleoamethe to take them to the person who had taken the child.
Tseliso Mohaleoamathe returned with accused and his companion whilst
he (Pheello Selinyane) continued on his way home in the company
4/ Returning to his ........
Returning to his evidence, Taeliso Mahaleoamato
confirmed that after he had taken Phelane from the deceased, Pheello
for home with the boy. He and Lisema accompanied them.
On the way they met the accused and one Thabang who were employees
father Lereko Mohaleoamathe. According to Tseli30
Mohaleoamathe when they met the accused and Thabang no conversation
between them and Pheello Selinyane. As it will become
clear later in this judgment the accused and his companion had
received a falso information that Tseliso Mohaleoamathe
had been abducted by a strange person. They were, therefore, anxious
find the boy and the person who had allegedly abducted him. I
find it improbable that they could have facted to speak to Pheello
Selinyane whom they found wallsing with the boy they were looking
for. 1 accept as the truth the story of Pheello Selinyane that
did have a chat with the accused and his companion at the time he met
them on his way home from White cafe.
Be that as it may, Tseliso Mohaleoamathe did confirm the
evidence of Pheello Selinyane that after they had met the accused and
he did return with them to point out the person who had
caught hold of and dragged away Phelane. They eventually came to Le
Restaurant where he pointed out the deceased as the person they
were looking for. He was seated at v table in the company of
Lehlohonolo Ramarothale and other people. The accused and Thabang
then caught hold of the deceased and told
him to go out with them.
Lehlohonolo Ramarothole, Tsoanelo Masoetsa and Julius
Manyaki confirmed that they were sitting with the deceased at Le
when Thabang and the accused came in and the latter
told him to go out with them for a talk. According to him
told the accused that the deceased would came
to him after he had finished what he was discussiny with him. The
stood up and on his own
5/ followed the ...........
followed the accused and his companion out of the
Shortly after the deceased had followed the accused and
Thabang out ,Lehlohonolo Ramarothole, Tsoanelo Masoetsa and Julius
noticed that there was a commotion outside the Restaurant.
They immediately went out and found that the accused and Thabang were
bitting the deceased with fists and/or open hands. The deceased was,
however, not returning the blows. They intervened by holding
accused and Thabang who then left the place.
Thereafter the deceased who was unable to speak dropped
to the ground. When deceased's jacket was removed to examine him for
Lehlohonolo Ramarathole, Tsoanelo Masoetsa and Julius
Monyaki noticed that he had sustained a stab-wound below the left
confirmed the evidence of Selomo Hlolele that an alarm
was raised and the deceased rushed to Mafeteng Government hospital
in a vehicle.
No additional injuries were sustained by the
deceased whilst he was being conveyed to the hospital. According to
Ramarothnle, Tsoanela Masoetsa and Julius Monyaki the
deceased was certified dead on arrival at the hospital. They
they then went to report at Mafeteng police
The evidence of Mamase Mohaleoamathe was
at about 7.30 p.m. an 2nd May, 1986, she was sitting with her
brother Lereko Mohaleoamathe outside the house when Lisema, a
about the same age as Handyboy, alias, Tseliso Mohaleoamathe came and
reported that the latter and Phelane had been abducted
by a strange
person. Mamase, Lereko and other people including the accused and
Thabang immediately set out in search of Tseliso Mohaleoamathe
the strange person who had allegedly abducted him. On the way they
Separated into two groups, the accused and Thabang following
6/ she, Lereko ........
she, Lereko and others followed a different direction.
On the way she, however, united next to a certain butchery
whilst Lereko and others continued in the search. Whilst waiting
next to the butchery she noticed Pheello Selinyone
Phelane. When she asked them the whereabouts of Tseliso
Mohaleoamathe. Pheello Selinyane informed Mamase Mohaleoamathe
he had returned with the accused and Thabang to find the deceased.
She followed the main road to look for them. Shortly thereafter
accused and Thabang came with Tseliso Mohaleoamathe. They all
I think it is now clear from the crown evidence that the
person who had been taken away by the deceased was Phelane and not
Mohaleoamathe . If Lisema, who was not even called as a
witness, did give infoi-mation that Tseliso Mahsleoamathe had been
such informatio was obviously wrong.
Be that as it may Mamase Mohaleoamathe told the court
that after they had returned home she, the accused, Thabang and one
alias, Nale Mohaleoamathe went to her house. They all
contributed some money with which to buy liquor at the beer house of
Before leaving for the beer house the accused gave her
a knife and some money for safekeeping. She handed them to a woman
she lived in the house.
At about midnight Mamase Mohaleoamathe and her drinking
mates were still enjoying their drinks at Matlosa'a beer house when
and some police officers came in. On the request of Lereko
the accused and Thabang when out with him and the police officers.
to Mamase the accused and Thabang never returned to
the beer house. It was only an the following day that the accused
to her house. He was then in the company of the chief's
representative, one Lekhooa alias, Samuel Sabata, and members of the
7/ of whom .........
of whom was D/Tpr. Ramokone. On arrival the accused
asked Mamase Mohaleoamathe to produce the knife he had given to her
an the previous night. She did produce the knife
which was examined and seized by D/Tper Ramokane after pointing out
to all the people
in the house that it had what appeared to be blood
stains an its blade.
According to P.W.1, D/Tper Ramokone, he met the accused
on 3rd May, 19B6 at the Mafeteng police charge office where he was
The accused then gave him a certain explanation following
which they proceeded to the village of Phahameng where they were
by Lereko Mahaleoamathe and the chief's renresen-tative,
Samuel Sebata. That was confirmed by Samuel Sebata. The accused
them to the house of Mamase Mahaleoamathe. As to what took
place when they came to her house, the evidence of P.W.1 (D/Tpr.
and Samuel Sebata corroborated in all material respects
that of Mamase Mohaleoamathe. According to P.W.1, he then returned to
police charge office together with the accused and the knife
which he handed in as Exh. "1" in this trial. He
cautioned and charged the accused as often
P.W.2, Thabang Tetsa, was declared an accomplice witness
and accordingly warned. As such he was not merely a witness with a
motive to tell lies about an innocent accused but a witness
peculiarly equipped, by reason of his inside knowledge of the crime,
to convince the unwary that his lies were the truth. It is because
of its inherent danger that the court approaches the evidence
P.W.2 with caution.
Very briefly P.W.2 confirmed that he and the accused
were the employees of Lereko Mohaleosmathe. On the evening of the day
an alarm was raised that a strange person had abducted
8/ of whom...........
of whom was Tseliso Mohaleoamathe, the son of his
employer He and the accused were among the people who went out in
search of the
children and the person who had allegedly abducted
them. On the way they met Tseliso Mohaleoamatho. in the company of
and Phelane. Tseliso Mohaleoamathe then took them
to Le Joint Restaurant where he pointed at the deceased as the person
abductad the children. The deceased was in the company of
Lehlohonolo Ramarothole and other people in the Restaurant Accused
hold of and actually dragged the deceased out of the
When the accused and the deceased were outside the
Restaurant he (P.W.2) told the deceased that they should proceed to
charge office but the latter refused by pulling himself
from the accused. P.W.2 then started hitting the deceased with open
on the face. The accused joined in the assault on the deceased
by bitting him with fists- The deceased was so drunk that he could
not return the blows. Eventually Lehlohonolo Ramarothole, Tsoanelo
Masoetsa and others came and inter vened by holding them (P.W.2
the accused) away from the deceased. As the accused was being pulled
away from the deceased, P.W.2 noticed him claspping his
he put into the hind pocket of his trousers. P.W.2, the accused and
Tseliso Mohaleoamathe then left the place and returned
horns at the
village of Phahameng.
On entering the village teey met Lereko Mahaleoamathe
who enquired about the whereabouts of the person who had abducted the
In reply the accused said " (Nkamola, ke mo noele and
ho chaile ke eena." By those words P.W.2 understood the accused
to mean that he had stabbed the deceased who was piobobly dead.
Lereko, who was, however not called as a witness, then rebuked
and the accused saying he had instructed them to arrest the deceased
and bring him to him but not to kill him. He confirmed
that they then went to the house of Mamase where they
9/ contributed .........
some money for drinks at the beer house of Mstlosa. He was, however,
drinking only soft drinks as he did not take liquor
at the time.
Whilst they were at Matloaa's. Lereko and the police arrived. He end
the accused were arrested and escorted to the
charge office where
they were locked up in a cell. They did not discuss the incident that
had occurred at Le Joint Restaurant as
there were many other people
in the same cell.
It should be observed that although P.W.2 testified
that the deceased was caught hold of and actually dragged out of the
by the accused there was no corroborative evidence on that
point. On the con-trrary the evidence of Lehlohonolo Ramarothole
by that of Tsoanelo Masoetsa and Julius Manyski was
that after the accused had spoken to him the deceased went outside
on his own. Indeed. the accused himself testified on
oath and confirmed the evidence that the deceased voluntarily
outside the Restaurant.
I am inclined to reject as false P.W.2's story that the
deceased was physically dragged out of the Restaurant by the accused
as the truth the latter's version corroborated by the
other crown witnesses that the deceased went out of the Restaurant on
As regard P.W.2's evidence that he had to assault the
deceased because the latter was refusing to go to the police charge
it may be meritioned that on the evidence of P.W.2 himself
the police charge office was just across the road from Le Joint
If it were true that the deceased had refused to
accompany him to the police charge, P.W.2 could have easily run
across the road
ana reported him to the police rather than take the
law into his own hands by assaulting the deceased Even after
P.W.2 did not bother to report at the police station.
Instead he left the scene and
10/ returned to .........
returned to the place where he stayed at the village of
Phehameng.. In any event P.W.2's evidence that before he started
him the deceased had refused to accompany him to the
police station was not corrabord ted by any other evidence and far
alone I am not prepared to accept it as the truth.
Bearing in mind that after they had found Tseliso
Mohaleomthe P.W.2 and the accused came to Le Joint Restaurant in
search of the deceased
who was alleged to have abducted children, it
seems to me sensible to infer from this that they had already decided
to was assault
the deceased wherever they would find him. That being
so, I am inclined to accept the accused's story that as soon as the
came out of the Restaurant P.W.2 started bitting him with
According to the accused, the deceased, who was quite
sober at the time returned the blows. When he (accused) tried to
the deceased hit him with fists. He bit back and it was
whilst he and the deceased were exchanging blows that he (accused)
fed up and took out a knife with which he stabbed the deceased an
self-defence. The fight was eventually stopped by Lehlohonolo
Ramarathole and some other people .
Although the accused claimed that the deceased was on
the evening in question, sober and returning the blows the evidence
that he was not was corrode rated by that of
Lehlohonolo Ramarothole, Tsoanelo Masoetso and Julius Monyaki. I
find it reasonable to accept as the truth the evidence of
P.W.2 corroboraled by the other crown witnesses and reject as false
the uncorroborated story of
the accused on this point.
Granted that at the time the accused
him the deceased was drunk and not fighting at all, it must be
accepted that he was posing no danger to the accused. Consequently
the defence of self-defence cannot avail the accused.
11/ Although he ........
he conceded that when they met Leieke Mohaleoamathe at the village
of Phahameng he told him that he had stabbed the deceased
knife , the accused denied that he ever used the words "Nkamola
ke mo noele and ho chaile ka eena". Wall, whether
or not he
used those words it now seems immaterial for in his own words the
accused has admitted that he is the one who on 2nd May,
the deceased with a knife.
The accused conceded that on the following day, 3rd May,
1986, he took P.W.1 to the home of Mamase Mohaleonmathe who produced
knife he had handed to her for safekeeping on the previous night.
He denied, however, that it was the same knife that was handed
as exhibit "1" in this trial.
I examined exhibit "1" at the time it was
handed in end noticed that it had what appeared to be blood stains on
Mamase Mohaleoamathe herself and P.W. 1 were positive
that it was the seme knife that accused had left at the home of
for safekeeping. I am convinced that they were
tailing the truth and the accused was being untruthful on this issue
By and large, I am satisfied that the accused did stab
the deceased with a knife and the question whether or not he is the
who inflicted upon the deceased the injury that brought about
his death must, therefore, be answered in the affirmative. I have
already rejected the accused's story that when he stabber him the
deceased WEB fighting or posing any danger to him and consequently
the defence of self-defence did not avail him. The only question
remaining for the determination of the court is whether or not
he stabbed the deceased to death the accused had the requisite
subjective intention to kill.
12/ It it were.........
If it were borne in mind that the accused used a knife
to stab the deceased, who was defenceless and posing no danger to him
cheat which is the upper portion of the body there should be
no doubt that the accused was aware that death was likely to result.
He, nonetheless, acted reck]es3 of whether or not death did occur.
That being so, I come to the conclusion that the accused
have the requisite subjective intention to kill, at least in the
In the result, I have no alternative but to find the
accused guilty of murder as charged.
Both my assessors agree.
B.K. MOLAI, JUDGE,
1st October, 1987.
For Crown Mr . Mokhobo For Defence Mr.
Having convicted the accused of murder, the court
is now enjoined by the provisions of S.296 of the Criminal Procedure
and Evidence Act, 1981 to make a finding on the existence
Extenuating Circumstances i.e. whether or not there are any factors
tending to reduce the moral blameworthiness of the accused's
In this regard there was evidence, which I accepted,
that the accused had received a report, albeit false, that the
was a complete stranger, had kidnapped Tseliso
Mohaleoamathe, a son of his employer. In all probabilities,
that served as provocation to the accused. Although it was not such
that it could reduce
murder to culpable homicide the provocation
should properly be considered for purposes of extenuating
It may be mentioned that in the course of his evidence,
the accused denied that at the time he assaulted the deceased he was
the influence of intoxication. He however, admitted that
shortly before going to Le Joint Restaurant he had been at Mafeteng
stop where he took some beer. Assuming the correctness of
his evidence that he had taken some beer it rust be accepted that
accused was under the influence of intoxcation, at least to some
degree., It is trite law that intoximation affects the minds
people so that they do things they would not do when sober. There is
no evidence that the accused took the intoxicating
the sole purpose of fortifying himself to insensitively kill the
deceased. His intoxication may, therefore, betaken
as an extenuating circumstance.
14/ In the premises, ......
In the premises, I come to the conclusion that
extenuating circumstances do exist in this case and the proper
verdict is that the
accused is guilty of murder with extenuating
My assessors agree with this finding. SENTENCE
Nine(9) years imprisonment.
B.K. MOLAI JUDGE
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