THE HIGH COURT OF LESOTHO
In the Matter of
J U D G M E N T
Delivered by the Hon. Mr. Justice B.K. Molai
on the 13th day of November, 1987.
The accused is before me on a charge of murder. The
Facts disclosed by the charge sheet are that on 15th November, 1985
at or near
Mpharane in the District of Leribe, the accused unlawfully
and intentionally killed one Mohlalefi Ntelane.
It is common cause that the deceased lived in the same
village as the accused does. They were in fact relatives According
P.W.1, 'Mathabang Soto, who also lived in the same village
with the deceased and the accused, she was, on 15th November, 1985,
home from the mill at Mokhanipi when she noticed the
accused following her. The accused caught up with her. After they
each other the accused passed on. P.W.1 then met another
woman with whom she talked for a short time. She then noticed the
who was in the company of one Papa approaching on the same
road but from the opposite direction. Then the accused, Papa end the
deceased met and passed each other at a distance of about 12 paces
(indicated) from her. Nothing was said between the deceased.
and the accused as they passed each other on the way. She would have
heard it if the deceased and the accused talked to each
of course, they were whispering.
2/ However, she
However, she noticed that after passing the deceased and
Paps on the way the accused walked fast in the direction towards his
When the deceased and Papa came to P.W.1, the former
stopped and talked to P.W.1 about her field which he was supposed to
in preparation for ploughing. It was whilst she was
talking to the deceased on the road that P.W.1 noticed the accused
them. He was holding a knife similar to the one
before court. P.W.1 was, however, not bothered for she thought the
returning to where he came from at the time he was
When he came to them the accused went round
P.W.1 and suddenly stabbed the deceased, who stood
facing her, on the chest. She immediately took to her heels and went
an alarm at a nearby house where there was a feast for
removing a mourning cloth. Whilst she was running away, P.W.1 had
to look back when she noticed the deceased picking up a
stone. He did not, however, throw the stone at the accused. He
holding it until accused's mother, one 'Mampheletso Libabe,
came and intervened in the fight. The accused then left in the
towards his home.
The deceased eventually fell to the ground still holding
the stone. Later on the police came and carried him away. He was
alive. However, on the following morning, P.W.1 learned that
the deceased had passed away.
According to the accused, the deceased was a secret
lover of P.W.1, a fart which is, however, denied by P.W.1. When he
met Papa and
deceased, the latter asked him whether he was also in
love with P.W.I. The accused denied it. The deceased then told him
talking shit. When accused returned the insult, the deceased
then attacked and stabbed him with an okapi knife. He (accused) also
took out his okapi knife with which he stabbed the deceased in
self-defence. He denied, therefore,
P.W.1's evidence that before stabbing the deceased he
first went home from where he brought the butcher knife before court.
P.W.2, 'Manthatisi Thaate, one of the villagers, told
the court that on the day in question she was one of the women who
at the home of Papa where there was a feast for the
removal of mourning cloth. At one time she went outside the shelter
the cooking was taking place to attend to her baby.
It was whilst she was outside the shelter that P.W.2
noticed the accused following P.W.1 on the road from the direction of
She also noticed the deceased who was walking in the
company of Papa on the same road but from the opposite direction.
a time when P.W.2 went into the shelter to put bread into
the pot. When she got out she noticed the accused walking fast
the direction of the deceased and P.W.1 who were talking to
each other on the road. The accused was clearly holding a knife in
hand and coming from the direction of his house in the village.
When the accused came to where P.W.1 and the deceased
were, P.W.2 saw him stabbing the deceased with
the knife he was holding. At that time Papa had left
the deceased with P.W.1 and was at the entrance leading
his home. When she noticed the accused stabbing the
deceased with the knife P.W.2 raised the alarm by calling out
who was inside a house at the place where there was
a feast for the removal of a mourning cloth.
Although the accused denied that he first went to his
house, armed himself with a knife and then returned to stab the
the latter was talking to P.W.1 on the road, it seems
to me that the evidence of P.W.1 that he did is corroborated by that
I see no good reason why these two women should implicate
him falsely on this point. I am inclined, therefore, to accept their
story as the truth and reject the accused's version as
- 4 -
Although P.W.2 had initially told the court that after
the accused had passed P.W.1 on the road, she saw him passing the
and Papa who were walking together on the same road but in
the opposite direction, she later changed and said she only saw the
when he was returning from the direction of his house in the
village. She did not, therefore know if when the accused passed the
deceased and Papa on the way to his house there was any discussion
The evidence of P.W.1 that she noticed that when the
accused met the deceased and Papa on the road no conversation took
them is not corrobo-rated by the evidence of P.W.2.
There is, therefore, only P.W.1's word that no conversation took
the accused and the deceased and Papa at the time they
met on the road. On the other hand there is accused's word that
did take place.
In my view P.W.1's story that after meeting the deceased
and Papa the accused for no reason, ran home, armed himself with a
with which he returned to stab the deceased does not make
sense. The accused's version that when he met the deceased and Papa
was an altercation between them is a more sensible explanation
in as much as it gives a motive why the accused had to run to his
home, armed himself with a knife with which he returned to stab the
In her evidence P.W.3, 'Mampheletso Libabe, told the
court that the accused was her own son. She confirmed that on the
day in question
she was inside a house at the home of Papa where
there was a feast for the removal of a mourning cloth. She then
heard P.W.2 raising
the alarm by calling out her name and saying the
accused was stabbing a person with a knife. P.W.3 then immediately
rushed out of
the house and noticed the accused and the deceased on
the road just outside Papa's premises. The accused was holding up a
at the deceased who was also holding a stone,. She ran and got
between the two men. She noticed that the deceased was badly injured
on the neck and bleeding profusely.
5/ When she
When she remonstrated with him for what he had done to
the deceased the accused simply left in the direction towards hie
thereafter she, however, noticed the accused running
away from his home. P.W.3 assured the court that the knife before
not an okapi knife is the one the accused was armed with on
In his testimony P.W.4 D/Tpr Seboka told the court that
on 15th November, 1965 he left his station at T.Y. on his way to
He was travelling in a police van. On the way he met one
Monyane, another police officer who was at the time stationed at
police post. The two police officers then travelled together
On their way back from Kolojane they went via Mpharane.
As they passed on the road next to Mpharane. High School it was
sun set. They were stopped by some women who asked them if
they could assist by rushing to the hospital an injured person in
village. One of the women was 'Mathabang Soto.
When P.W.4 inquired about the whereabouts of the person
who had caused the injuries the women pointed at a person who was
on the upper side of Mpharane High School. The police
officers then immediately turned their vehicle and chased after the
who was running away. When they came to the home of one
Chabeli the road was bad. They then left the vehicle and continued
chase on foot. They called out at the person who was running
away and told him to stop for they were police officers. When he did
not stop they fired a warning shot. The man then stopped and
returned to them. P.W.4 found that it was the accused who was a
person to him.
When he was asked about the person he had allegedly
injured in the village and the weapon used, the accused gave a
following which he took the police officers to a
spot next to a kraal used for dipping animals. From that spot he
produced and handed
over to P.W.4 a long butcher knife which is
before court. On
examining it P.W.4 noticed that the knife had what
appeared to be blood stains on its blade. He took possession of the
he later handed to one D/Sgt Peete at Hlotse police
station. It was labled in his presence. Although D/Sgt Peete has
not been called
as a witness in this trial P.W.4 assured the court
that the knife before court is the one produced by the accused on
that day and
it was handed in as Exh. 1.
According to P.W.4 after the accused had produced Exh. 1
he escorted him to the vehicle from where they drove to the village
They found the deceased bleeding profusely from the
neck but still alive. In an attempt to save his life they put the
into the vehicle and rushed him to Hlotse hospital without
examining him for further injuries.
The deceased did not sustain additional injuries whilst
he was being transported from Mpharane to the hospital. However, a
after arrival at the hospital P.W.4 learned that the
deceased was dead. Before returning to his station at T.Y. P.W.4
accused to HLotse police charge office where he handed
him to the police after cautioning and charging him as aforesaid.
P.W.4 had neither observed any injuries on the accused
nor did the accused himself complain that he had been injured on that
However, the accused appeared to be some what drunk.
In his evidence, the accused conceded that after P.W.3
had remonstrated with him for stabbing the deceased, he left and went
home, then threw the knife he hod used to stab the deceased
with into the garden. He conceded that he then ran sway and was
by the police officers one of whom was P.W.4 who was an
acquaintance of his. when shots were fired at him he realised that
be injured and then decided to stop and surrender himself.
He denied, however, that he produced to P.W.4 Exhibit 1 which was not
the knife he used to stab the deceased.
7/ I find no .......
I find no good reason why P.W.4 who is admittedly an
acquaintance of the accused would say the accused pointed or
1 to him if he did not in fact do so. Indeed, the
evidence of P.W.1 P.W.2 and P.W.3 who is accused's own mother confirm
1 is the knife which was used by the accused to stab the
deceased. While still on this point, it may be mentioned that P.W.3
me as a very honest lady who came to this court prepared to
tell the truth and nothing else. I have not the slightest hesitation
in accepting her evidence corroborated by the evidence of the other
crown witness that Exh 1 is the knife with which the accused
the deceased. In an attempt to hide this knife the accused threw it
away whilst he was running away and P.W.4 was telling
the truth when
he testified that after he had arrested him, the accused took him to
the spot where he produced it.
Although he claims to have been injured by the deceased
and P.W. 4 denied him the opportunity to see a medical doctor, the
of the accused in this regard is denied by P.W.4 and all the
crown witnesses who saw him on that day. In reply to the question
were put to him by the court, the accused himself testified that
he did not report the alleged injuries to the police at Hlotse,
magistrate before whom he was remanded and the prison authorities. I
am convinced that the accused's story that he had been
injured by the
deceased on the day in in question is nothing but a fabrication which
I am not prepared to accept.
The deposition of Raletsoai Ntelane who was P W.6 at the
proceedings of the Preparatory Examination was admitted by the
The crown counsel accepted the admission. In terms
of the provisions of S.273 of the Criminal Procedure and Evidence
Act 1981, the deposition became evidence and it was, therefore,
unnecessary to call the deponent as a witness in this trial.
to Raletsoai Ntelane he is the father of the deceased. On
15th November, 1985 he was at his home in
the village of Mpharane when he heard the alarm
following which he proceeded to a place where a large number of the
gathered. He found the deceased lying on the ground.
He had sustained open injuries on the neck and the left side of the
He confirmed that the deceased was subsequently conveyed to
hospital in a police vehicle. He Jeter identified the body of the
before the medical doctor who performed the post mortem
It may be mentioned that during the course of this
trial, Mr. Thetsane for the crown informed the court that Dr.
Carola Walter Kochling who had performed the post mortem examination
over the body of the
deceased was on ex-patriate who had since
returned to his home overseas and was therefore not available to
testify before this court.
Mr. Thetsane accordingly applied
that the deposition of the medical doctor who was P.W.1 at the
Preparatory Examination proceedings be admitted
in evidence in terms
of the provisions of S.227 of the Criminal Procedure and
Evidence Act 1981. The application was, however, opposed by Mr.
Mphalane, counsel for the defence. In that event, Mr. Thetsane
had no alternative but to adduce the evidence of P.W. 6, Limakatso
who testified that she was the Principal Personnel Officer in
the Ministry of Health, As such her duties included recruitment of
both Local and Expatriate staff in the Ministry. She knew Dr. Carola
Walter Kochling and her husband Dr. George. They were both
volunteers from Germany and recruited as medical officers in March
1984. They were both initially posted in Mokhotlong
and later Hlotse
Government hospitals. When in March 1986 their contracts expired,
the two medical doctors left Lesotho for their
home in Germany.
Dr. Carols Kochling was, therefore, presumably in Germany. She used
the word "presumably" because
after Dr. Carola had left
Lesotho for Germany she (P.W.6) did not trace if she volunteered to
work in another country.
9/ It was
It was argued that Dr. Carola Kochling might have gone
to any of the neighbouring countries where she is readily available
in this trial. In my view, the argument is not supported
by the evidence of P.W.6 and I reject it as baseless.
Mr. Thetsane also adduced the evidence of P.W.5 Mr
Ramashamole the Resident Magistrate who presided over the Preparatory
proceedings in this rase, He told the court that as it
appeared on the record of the Preparatory Examination the deposition
Kochling who was P.W.1 was correctly recorded by him at the
time of its making. The accused who was present at the proceedings
the Preparatory Examination was afforded the opportunity to
cross-examine Dr. Carola Kochling. However, the Resident Magistrate
told the court that Dr. Carola Kochling was a male Doctor who had
since left the magisterial district. Regard being had to
evidence of P.W.6 and thy fact that the name "Carols" seems
to be a Latin word of a femine gender I am convinced that
Resident Magistrate cannot be correct in his evidence that Dr. Carols
Kochling was not a lady doctor. Be that as it
may, I was otherwise
satisfied that the deposition of Or. Carola Kochling who had since
left this country was correctly recorded
by the Resident Magistrate
in the presence of the accused. The accused was addmittedly afforded
the opportunity to cross-examine
her. In the circumstances of this
case DR. Carola Kochling cannot be compelled to attend this court
without considerable amount
of delay or expense. I accordingly
allowed her deposition to be read as evidence in this trial.
The evidence of Dr Carola Kochling was to the effect
that she was the medical doctor who on 20th November, 1985 performed
(Exh A) on a dead body of a mole African adult. The
body was identified before her by Raletsoai Ntelane as that of the
The examination revealed stab wounds on the right side of
the neck penetrating to the lung , lower chest, upper chest and lower
arm. When opening the cavity, it was found that
10/ the pleural
the pleural sac was full of blood. On these finding the
doctor formed the opinion that death was due to the stab wound on the
I can think of no good reason why Dr. Carola Kochling's
opinion that the deceased died as a result of the stab wound
his neck should be doubted. I am therefore prepared to
As has been pointed out earlier, the accused raised the
defence of self-defence in that at the time he stabbed him the
also attacking him with a knife. That was, however,
denied by both P.W.1 and P.W.2, the two eye witnesses who told the
at the time the accused fatally stabbed him the deceased
was just talking to P.W.1 and posing no danger at all to his
life. I have rejected as false the accused's story and
accepted as the truth the evidence of both P.W.1 and P.W.2 on this
That being so, self-defence cannot avail the accused. It was
also argued that the deceased hod falsely accused the accused of
having illicit love affair with P.W.1 and insulted him. The accused
therefore, acted under provocation. That may be so, I have,
however, accepted the evidence that the accused then went to his
house where he armed himself with the butcher knife exhibited before
the court before returning to stab the deceased where he was talking
to P.W.1. The accused cannot, therefore, be said to have acted
the heat of passion. If any at all the provocation was not such that
it could, in our law, reduce the crime of murder to a lesser
offence. The argument does not, in my view, hold water and it is
By and large,I am satisfied that the deceased died as a
result of the injury unlawfully inflicted upon him by the accused
That being so the only question remaining for the
determination of the court is whether or not at the time he
the deceased to death the accused had the
requisite subjective intention to kill. If it were borne in mind
that the accused used
a leathal weapon such as a knife to stab the
11/deceased on the
deceased on the upper portion of the body, there could
be no doubt that he was aware that death was likely to result. He
acted reckless of whether or not death did occur. That
granted, it must be accepted that the accused had the requisite
intention to kill, at least in the legal sense.
I would, therefore, find the accused guilty of murder as
Both my assessors agree with this finding.
B.K. MOLAI JUDGE.
13th November, 1987.
For Crown Mr. Thetsane, For Defendant Mr. Mphalane.
Having convicted the accused of murder I am enjoined by
S.296 of the Criminal Procedure and Evidence Act, 1981
to make a finding as to the existence or otherwise of factors
tending to reduce the moral blameworthiness of his act.
In this regard I accepted the accused's evidence that
before he stabbed the deceased to death the latter had insulted and
him of having illicit love affair with P.W.1, There was,
therefore, an element of provocation Although it may not have been
as to reduce murder to a lesser offence the provocation may
properly be taken into account for,purposes of extenuating
The court has found that in killing the deceased as he
did the accused had intention in the legal sense. Assuming the
of this finding, it must be accepted that the accused did
not premeditate the death of the deceased. The absence of
is in itself a factor to be considered in determining
the existence or not of the extenuating circumstances.
Finally there was evidence which I accepted that at the
time he assaulted the deceased and inflicted upon him the fatal
the accused was under the influence of intoxication .
Although the accused's intoxication was hot such that it could
a defence in this case, it is trite law that intoxication
affects the minds of people so that they do things they would not do
sober (S. v. Ndhlovu (2) 1965 (4) S.A. 692 at p.695 C-E, 696
A-B). This, in my view is a factor to be properly considered in
the existence or otherwise of the extenuating circumstances.
2/ By and large . ...
By and large I em satisfied that there are extenuating
circumstances in this case and a proper verdict is that the accused
of murder with extenuating circumstances*
Both my assessors agree.
SENTENCE 10 years imprisonment which is to
with effect from 15th November, 1985 the date on which
the accused has since been kept in prison.
B.M. MOLAI JUDGE
16th November, 1987.
For Crown Mr. Thetsane, For Defendant Mr.
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