CRI/T/1/86 IN THE HIGH COURT OF LESOTHO
In the matter of
THABANG MARAISANE LAI JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on
the 30th day of November, 1987
The accused Is indicted on a charge of murdering one
Thapelo Belebese at Motimposo, Maseru over three years ago on 26 May
shooting him through the head
The main eye-witnesses were Thapelo Taetsane (PW1) and
TSokolo Sekhampu (PW2) who were then aged about 17 years The
Belebese was aged 18 years. These three with other
people were at a place called Peter's cafè Motimposo at some time
between 7 and
8 p.n. on the day in question. it was dark at the
Apparently the deceased boy had been drinking and he
snatched Thapelo's (PW1) cap from his head. Thapelo demanded it back
quarrelled An elder intervened and told the deceased to
return the cap which he did. Thapelo then went home where he
that he had not bought some sugar. He returned to the
cafè accompanied by his brother Taleli (who did not testify).
They arrived at the cafè before 9 00 p.m. and, on the
way, they met the accused whom Thapelo knew quite well He was clean
at the time although more usually he wore a beard Thapelo
said he wore a green blanket under which he carried a shotgun. He
that the accused was known in their village to be a policeman
and he claimed to be one although he never wore uniform He had an
identity card of some sort which he told people was a police identity
Knowing this about the accused, Thapelo approached him
and told him of the earlier incident in the cafè and said that he
about whether the deceased would continue the quarrel.
The accused then accompanied Thapelo and his brother to the cafè.
Outside the cafè they found the deceased talking to a
woman and Thapelo pointed him out to the accused. The accused
beckoned to the
deceased to come to him but the deceased did not
The accused then approached the deceased and removed the
shotgun from under his blanket where it had been slung on his
The accused asked the deceased where Thapelo's cap was.
The deceased replied something like, "you can shoot me if that's
The accused was carrying the shotgun pointing upwards
in the direction of the deceased's head and, without a word, he
fired it when he was very close to the deceased. There
was no time for the many pellets to separate before they struck the
and the whole lot, together with the plastic cartridge cap,
large hole in the deceased's forehead above his right
eye and the tremendous force of the impact flung the deceased into
He fell to the ground dead. The accused then asked, "where
are the others?" Thapelo was frightened and replied that there
were no others involved. The accused left the place carrying the gun
and nobody tried to stop him.
Detective Sergeant Molefi (whose P E. evidence was
admitted) came to the scene shortly afterwards. He saw the deceased
with a fresh
open wound on his forehead which had been bleeding. He
took the body to the mortuary
On 28 May 1984 a post mortem examination of the body was
carried out by Dr. Mapetla (PW3) at the Queen Elizabeth II Hospital,
She completed a written report which was put in as exhibit
'A'. The body was identified to her by Motlalepula Mokhatla (whose P
E. evidence was admitted) who was related to the deceased by marriage
(he was brother-in-law of the deceased's mother).
The doctor found a large hole in the deceased's forehead
about 35 cms in diameter caused by an object penetrating the skull
it with extensive brain damage, which was the cause of
death. There was no exit wound and the doctor found about nine pieces
and a circular piece of plastic inside the skull.
Unfortunately this doctor had no experience of gunshot
wounds and the police appear to have carelessly lost the items
inside the deceased's head. It would appear that the
pieces of metal were pellets from the shotgun cartridge and the
was probably the cartridge cap.
There was a spent cartridge in the shotgun (exhibit and
as the top of the cartridge had not been crimped it would no doubt
sealed with a cap of some sort. At such close range
everything that came out of the gun barrel would have entered the
Detective Trooper Masupha (PW5) of Maseru C I.D. claimed
to have been the investigating officer although he seemed to have
idea of how to do the job, and he did nothing effective
as far as I can see. In every homicide trial that I have conducted
so far the so-called investigations have been carried out by
inexperienced troopers insteads of by experienced senior officers, as
they clearly should have been. It ought to be obvious to the police
that a serious case that is likely to be tried in the High Court
be thoroughly and carefully investigated. Junior officers are not
capable of such work and they should not be left to deal
cases without at least very close supervision from their superiors
Although the accused was apparently well-enough known
locally, he was not located by Trooper Masupha On 6 June 1984
officer, Trooper Ramashamole (PW4), of Maseru Central
Charge Office, received a report and he went with another trooper to
to arrest the accused who was known to him by the nickname
of Sergeant Molapo. In fact the accused himself stated that
was his brother-in-law although this was not put to
Ramashamole himself. At any rate he knew that he was looking for one
Maraisane and he enquired first
of the chief. But he did not find the accused until he
reached Ha Ts'iu. There he found the accused at the home of Boesame
(D.W.I) where he was in the habit of going daily to drink
beer. The accused had no beard at the time, he was clean shaven.
When he saw the two policemen the accused pointed his
shotgun at them. Ramashamole grabbed hold of the nun which the
released and he ran away They chased him but did not
catch him The gun was put in as exhibit 1. It was an old Greener
which is a shot gun that used to be manufactured for use
by police forces dealing with riotous mobs. In the breach was a
case of the type called an SP 70 for 12 bore
shotguns. Around the forward part of the butt was bound a piece of
The carrying sling was made partly of leather and
partly of metal chain. In fact it looks like a lead chain for a dog.
Thapelo (PW1) when he identified the gun as that used by
the accused at the scene of the shooting, especialy pointed out the
binding and the chain sling as being on the gun that he saw the
accused use then and also carrying on other occasions in the village
during the few weeks prior to the shooting
Boesane Mafoea (DW1) who appeared at the P E as a
prosecution witness, and whose brief testimony there was admitted by
stated that the accused regularly drank beer at his
place and he carried the same shotgun (identified) with him daily.
confirmation that the accused was known locally as a
/ It was ...
It was not until 1 October 1984 that Det Tpr. Masupha
(PW5) again met the accused. That was in Maseru and he than arrested
on a charge of murder.
The accused gave sworn testimony in his defence and he
denied the entire prosecution case. He said he was not at Peter's
the day in question, that he did not shoot the deceased, and
that he had never had a green blanket or a gun and had never claimed
to be a policeman. Nor had he called himself Molapo. He did not
know Thapelo (PW1) at all and he could not say why Thapelo should
have lied about the matter. He alleged that Tpr. Ramashamole was his
brother-in-law (though, as I indicated earlier, this was not
Ramashamole in cross-examination) But the accused could not suggest
any reason why Ramashamole was lying about him The accused
knowing Boesame but denied that he ever went to Boesame's house
drinking. The accused stated that he was convinced that
there was a
conspiracy to implicate him and blame him for the killing.
He stated that he was at home in May 1984 suffering from
what he called cancer of the thigh. He said that it was later cured
local medicine obtained from a Mrs Mapanya He had not been
for any treatment from a medical doctor.
The defence did not call Mrs Mapanya or the accused's
wife to support this claim. Of course, the defence does not have to
alibi but, in the face of the prosecution evidence
identifying the accused at the scene of the crime and later, in
the gun at Ha Ts'iu, it would surely have been prudent
defence to call these witnesses in order to support his
Thus the prosecution case depends upon the
identification of the accused at the scene by Thapelo (PW1). The
other witness, Ts'okolo
(PW2), spoke of a man in a green blanket
carrying a gun. He was not able to identify the accused as that man.
But his description
of the killer supports that of Thapelo (PW1) as
far as it goes.
This was further supported by Tpr. Ramashamole's (PW4)
testimony of having taken the same gun from the accused eleven days
on 6 June 1984. Also by the admitted evidence of Boesame
Mafoea (DW1) that the accused regularly carried the same gun with him
he was drinking at Boesame's home. This last witness was only
called by the defence to testify about events that were alleged to
have happened at the police station afterwards. Boesame claimed that
he was arrested because he was known as a close friend of the
(denied by the accused) and later released. The only useful and
relevant evidence from this witness was the very brief statement
he made at the P.E. which was admitted in this Court, and to which I
have already referred.
I found Thapelo (PW1) to be a straightforward witness,
not particularly intelligent, but truthful and credible. He was not
shaken in cross-examination and there was revealed no reason
at all why he should have told lies or made up his evidence against
the accused Apart from the actual identification of the accused,
Thapelo's version of the shooting was corroborated by the other
eyewitness Ts'okolo (P.W.2), who did not know the accused and
/had no ...
had no apparent reason to lie about what he saw.
On the other hand I did not find the accused's testimony
and complete denial at all convincing. I am satisfied that the
version that the accused shot the deceased and caused his
death was the truth.
Mr. Matlhare for the defence submitted that the
prosecution had failed to call expert ballistic evidence that the
was capable of being fired, and I agree that this
should have been done.
However, in this case the gun was clearly identified by
Thapelo (PW1) as the weapon used by the accused for the shooting.
particularly recognised the green band around the stock
of the gun and the peculiar leather and chain sling attached to it.
same identification was made by Tpr. Ramashamole when he seized
the gun from the accused a few days after the shooting. Thus this
gun was identified as the gun which actually fired the fatal shot.
But, even if it was not so identified, the evidence-is
clear that the deceased was shot to death and,even if the gun had not
recovered, that would not have saved the accused, provided the
prosecution witnesses could be believed In such cases a clear
of the weapon without it being produced, would usually be
In the present case I am satisfied that the shotgun
exhibited was the weapon used to shoot and kill the deceased by the
and I so find.
The next matter for consideration is whether there was
sufficient evidence of malice aforethought, the
accused's intention to kill the deceased. From the
evidence available it does not appear that the accused went to the
cafe with any
formed intention to harm the deceased. It appears to
have been an act committed by him on the spur of the moment without
There is no doubt that the accused acted in a very
foolish and irresponsible manner. He had no business to be carrying
at all and certainly no authority to use it against anyone.
The deceased had done him no harm at all, there was no provocation
the shooting was totally without justification. The previous
incident was nothing but a rather childish quarrel between these two
youths over a cap. It was no business of the accused and he should
not have interfered at all.
It is possible that the accused fired the gun merely to
frighten the deceased and without intent to harm him. This is not
the defence was a complete denial. Whatever it was the
accused was thinking or intending at the time, he pointed the gun in
of the deceased and pulled the trigger while standing
very close to him. It was a very dangerous and unlawful act.
I am not satisfied beyond reasonable doubt that it was
proved that the accused intended to kill the deceased, but I do find
accused unlawfully caused the death of the deceased. The
Assessors agree with this verdict.
Accordingly the accused is acquitted of the offence of
murder but, instead, he is convicted of the lesser offence of
P. A. P J ALLEN JUDGE
30th November, 1987 Mr. Matlhare for the defence Mr.
Mdhluli for the Crown
I have said the shooting was unjustifed. It was an
irresponsible, stupid and callous act by the accused for which there
is no excuse.
The accused was not drunk and not provoked. Mr.
Matlhare has asked for leniency for the accused but he took the life
of this 18
years old boy for no good reason at all and I do not
consider that he deserves much mercy.
The accused will go to prison for five (5) years.
P. A. P. J. ALLEN JUDGE
30th November, 1987 ORDER
The shotgun (exh.1) is to be handed to the police
Maseru for disposal.
P. A. P. J. ALLEN JUDGE
30th November, 1987
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