CRI/T/27/87 IN THE HIGHCOURT OF LESOTHO
In the matter of.
v LESESA LETHUNYA
Delivered by the Hon Mr. Justice Sir Peter Allen on the
14th day of December, 1987
The accused is indicted on two counts of murder by
shooting alleged to have occurred on 22 May 1987 at Khubetsoana,
Maseru. The victims
were the wife of the accused, 'Malapane Lethunya
(count 2), and a man alleged to have been her lover, Teboho Koma
(count 1). He
was also her uncle.
It was common ground that for some time before this
incident the accused and his wife had been quarrelling about
affairs that each accused the other of having
Evidence of this dispute was given by Matlere Thejane (PW2), the
father of the deceased
'Malapane, and by Ekabang Koma (PW8), a
younger brother of the deceased Teboho Koma, as well as by the
The accused admitted that he had seriously assaulted his
wife and that she then left him and went to stay with her uncle, the
Koma, at Maseru East There were a
number of family meetings arranged in an attempt to
patch up their quarrels but they were inconclusive and the couple
The accused alleged that his wife was having a love
affair with her uncle Koma while she was staying at his home, where
was also living. At the same time the accused admitted
that he had a girl friend and lover named Pinki Potaung.
At one of the family meetings attended by both the
accused and the deceased Koma, the accused had made some very
about the behaviour of his wife, and the accused
alleged that he was then attacked by Koma who tried to punch him but
(PW2) denied that this happened. But it is clear
that the two families did not make any progress in their attempts at
and the accused and his wife 'Malapane were drifting
The accused said that he was told that Koma had given a
large sum of money to 'Malapane and had bought her an expensive watch
other gifts The accused described himself as "insanely
jealous" of her and that he had "an obsession" about
the affair between his wife and Koma. Apparently he thought that it
was all right for him to have an affair with another woman but
could not bear the idea of her also having an affair But jealousy is
a strange and destructive feeling
'Malapane worked at the L.T.C. office in Maseru and one
of her colleagues in that office was Amelia Molapo whom the accused
continually supplying him with information about the
movements and activities of 'Malapani
and Koma. Amelia was acting as his spy and informant.
This woman did not testify and it is not known how true the accused's
was nor what her motive was for doing this unpleasant task.
In addition, the accused started following his wife and
Koma and watching them from a distance and seeking information about
All the signs of an obsession, in fact.
In November 1986 the accused illegally purchased a 9mm
automatic pistol of unknown make from a person whom he named as
He had ammunition for it and he was in the habit of
carrying it about with him. He did not explain why.
On Thursday 21 May 1987 the accused was informed by
Amelia that Koma had arranged to collect 'Malapane on the next day
after her work
and then take her to some unspecified place. He
also heard of a party planned by Amelia for some of her colleagues at
on the same Friday.
During the afternoon of Friday 22 May the accused went
to see one Cheseho Motsoakeletse (PW4) who worked as an electrician
U S Embassy in Maseru. The accused said that he wanted to
borrow Cheseho's car that day to deal with some family matters in
East. No doubt he realised that he could move around unseen
more easily in someone else's car. Cheseho'a car was a green Peugeot
The arrangement was that the accused would return the
car to Cheseho at the polo ground where Cheseho was going for
at the end of the afternoon.
Otherwise the accused would find Cheseho afterwards at
the home of his friend Thabo Ralise at Lower Thamae.
At 4.30 p.m. the accused was sitting in the car which
was parked in the car park at Lancer's Inn across the road from the
where his wife was working. At the same time one
Tsoloane Makhetha (PW3) was on his way from work to Lancer's Inn
where he intended
to buy himself a cold beer.
He said that the accused called him over to talk and
asked him to get into the car. When Tsoloane replied that he was on
to buy a beer the accused told horn not to bother as he bad
some cans of beer in the car and he gave him one. They sat in the
seats and drank silently. When Tsoloane asked the accused what
he wanted, the accused told him to look at two women and a man
together outside the L.T C. enquiry window about 25 metres
The accused pointed to one of the women, who was wearing
a green dress, and said that he wanted to see in which vehicle she
to leave Tsoloane asked if she was the accused's lover and
he replied that she was his wife. Nothing was happening so Tsoloane
left the car and went to make a telephone call from a nearby booth.
He described the accused as being restless and agitated and
peering through the car windows.
When ha had finished 'phoning he saw the accused talking
to a man called Jerry, the assistant manager of Lancer's Inn. At the
time he saw the two women and the
/get into ...
get into a red delivery van driven by the deceased Koma,
whom he knew and recognised. He also saw the accused trying to get
started and being pushed by some people for that purpose.
Tsoloane went across to the accused who asked him
to get in as he wished to follow the van. Tsoloane
as he said his driver had arranged to pick him up
The accused drove off and followed Koma's van keeping
two other vehicles between them. They went along the road to the old
as far as Seputana where some of the passengers got out.
After that Koma drove to his home in Maseru East and the accused left
there and went home to Khubetsoana.
At about 6 00 p.m. the accused drove to the Salang
restaurant at Khubetsoana. The restaurant was owned by the deceased
Koma and the
accused asked a woman employee there if she knew where
Koma was She told him that Koma had gone home. The accused then
Koma's home in Maseru East and asked for him there. A woman
domestic servant told him that Koma had been there with the accused's
wife but they had gone. She added that 'Malapane had told her that
she was going to a party somewhere in the location. This was
apparently the same party that the accused said he had already heard
about from Amelia, but it appears that he did not then know
Amelia's house was located.
The accused drove around the area looking for signs of a
party such as cars parked outside, a lot of people
about and much noise. He did not find such a place.
This was probably because it was in fact a small party and apparently
of those attending had a car parked outside. So the accused
drove to his home before 7.00 p.m.
At around 7.30 p.m. he took the car to Lower Thamae to
meet Cheseho (PW4) again. The accused found Cheseho with some other
including one Ntsane Ntsane (PW9) whom he knew. The accused
asked Ntsane Ntsane if he knew where a party was being held for
women workers and whether he knew a certain woman who worked
in the phonograms department of the L.T.C, But Ntsane Ntsane was
to help him and the accused left with Cheseho, supposedly to
go to their homes which were close to each other in Khubetson.
Although the oar belonged to Cheseho the accused seemed
to use it as if it was his own vehicle and he continued driving from
to place searching for his wife while Chesebo sat beside him
as a docile passenger. The accused drove first to the Victoria Hotel
in Kingsway where the accused stopped to make a telephone call to
Koma's home to find out if 'Malapane was there.
Apparently she was not there and, on their way out, they
passed the entrance of the Kingsway Cinema and the accused went
that he wanted to apeak to someone there. When he came
out they got into the car to proceed to Khubetsoana with the accused
At around 8.00 p.m. they came to the Salang restaurant
once again and the accused decided to go inside for a drink. Cheseho
dutifully followed behind him.
/They saw ...
They saw the deceased Koma sitting at the counter and he
greeted them. The accused then left Cheseho standing there and went
some steps into the darts room where he found one Seeiso Letsie
(PW14) who asked the accused to buy him a beer. On their way to
bar Letsie claimed that the accused said, "My elder brother,
today I think somebody is going to die, if I don't die
Letsie replied, "I think you're drunk."
Then the accused said, "Mine is here" and
moved the side of his body against Letsie, who said that he felt a
at the accused's waist under his jacket which he thought
was a gun. This was possible since the accused has admitted that he
in fact carrying a 9mm automatic pistol that evening.
At about the same time the accused noticed that Koma had
left the restaurant He bought a beer for Letsie and left immediately
Cheseho, who said that the accused appeared to be in a hurry.
The accused said that he wanted to follow a vehicle which was then
moving away with no lights on. It was in fact Koma's van although
Cheseho claimed that he did not know so at the time. The accused
told Cheseho to watch out for the van's brake lights which they saw
when the van slowed down to turn a corner. They followed and
van stop outside a house. The accused then stopped and switched off
the car lights. He got out for a moment and did something,
re-entered the car In Court it was suggested that he had cocked his
gun ready for firing, but he denied this.
The van had stopped beside a car which was parked
outside a house in the Stores Area of Khubetsoana. This
in fact, Amelia Molapo's house where the party was
taking place. It was a small house with only two rooms
and the 7 or 8 people attending the party were occupying both rooms.
room used as the kitchen was nearest to the road and it had a
window looking on to the road. One of the guests was Khopiso
(PW6), the owner of the car parked outside. The window was
open and he said he was sitting at the window keeping an eye on his
parked outside. He and his wife, 'Masebone, were present because
she worked at L.T.C. with Amelia and 'Malapane, who was also at
party. This was confirmed by another L T.C. colleague called
'Mamoorosana Sekoala (PW12) who was also present, but in the other
room, used as a bedroom. She (PW12) was there with Amelia and her
sister preparing some food for the party. There was music playing
and people were drinking.
On the other side of the road outside Amelia's house
there is a streetlight on a tall pole (about 20 paces from the
is another streetlight on the corner of a road
junction,just before reaching Amelia's house, and about the same
distance from the
window The witnesses said that the lights were
working that night, so there was adequate light in the area
Khopiso (PW6) knew the accused because they had once
worked at a mine together for two years. Khopiso and his wife were
'Malapane at the window when Koma's van stopped outside
'Malapane told them that she was going out to tell her uncle Koma
the party had just started and that he could either collect her
later or on the next morning. She was seen to go outside and to
stand by the passenger's door of the van apparently talking
/to Koma . .
to Koma who was sitting inside the van. Khopiso (PW6)
said he saw this and so too did Cheseho (PW4) as he and the accused
and stopped their car behind Koma's van. Both witnesses saw
the accused get out and walk towards his wife who was still standing
talking to Koma.
Khopiso testified that he did not see what happened
next, but he looked so uncomfortable and nervous when he said that,
that it was
clear that he had conveniently "forgotten" the
rest of the incident However, Cheseho described what followed. He
that the accused approached his wife 'Malapane and grabbed her
by the arm and she started to scream and to call out something which
the witness could not hear. Koma got out of his van and came round
the back of the van between the two vehicles. He raised both
hands and approached the accused and
'Malapane calling out "Butleng!" (meaning
"stop" or "hold it").
Cheseho saw the accused pull a gun from his waistband
and he fired two shots and the witness immediately ducked down below
car windscreen level. 'Malapane had broken away from the accused
and moved between him and Kota, She probably turned away when the
accused fired his second shot because that bullet passed through her
left side and her heart and then out of her chest on the right
She fell down and the accused pursued Koma along the road still
firing at him.
At the road junction Koma turned right and ran
northwards until he reached the house of Mrs Qholosha (PW5) which was
about 40 paces
from the junction. Outside
her house was another street light and Koma fell to the
ground about 12 paces from the lamp-post Mrs Qholosha had heard the
of the earlier gunshots and she was looking out of her window.
Under the street light she saw two people. One was the
accused, whom she knew and recognised He was standing over the other
who was lying on the ground. She saw the accused point a small
gun downwards and he fired 2 or 3 shots. She saw the flashes from
the gun as it was fired. When she saw that the accused had walked
away towards Amelia's house, Mrs Qholosha went outside and approached
the body. She recognised Teboho Koma whom she knew very well. There
was blood coming from his head and he appeared to be dead
out in alarm and other people came to the scene.
Mrs Qholosha said that there was a small apricot tree
about four feet high in her yard between the window and the road She
it did not obstruct her view of the accused and, in any
case, it was late May and there were no leaves on it.
Cheseho (PW4) described how he saw Koma running away
from the accused. Koma was moving slowly and limping, no doubt
because he had
already been hit by one or two bullets, may be more.
It seems surprising that he could move as far as he did. The 9mm
quite large ad they are designed to stop and disable a
man and to knock him down at close range. It appears that Koma was a
heavy man and so perhaps his excess fat absorbed some of the
shock of his injuries for a short while.
Cheseho said that he saw the accused approach Koma, who
had fallen down near the street light The accused stopped there and
heard more gunshots.
The accused then ran back and joined him in the car.
The accused said, "I told them that they would shit." He
the car towards where Koma was lying and then passed by
him and went away. Cheseho told the accused to take him home, which
and Cheseho got out He said he was by then afraid to ask the
accused to leave the car with him and he watched the accused drive
off in it.
Cheseho managed to get a lift to the police charge
office where he reported what had happened, but the police
had already received a report of the incident by then.
While the accused was pursuing Koma, 'Malapane, although
fatally injured through the heart, somehow had managed to crawl to
of Anelia's house. 'Mamooros in Sekoala (PW12) heard the
gunshots and went into the kitchen where she noticed that 'Malapane
absent She asked where 'Malapane had gone and was told that she
was outside. 'Mamoorosana opened the front door and 'Malapane fell
through the doorway and collapsed on the floor bleeding badly. She
managed to speak and said, "He has finished me " She
Khopiso (PW6) noticed that the accused's car had gone by
then and he and other people there carried her into Khopiso's car and
took her to Queen Elizabeth II Hospital where she died after
admission. Khopiso then drove to the charge office and reported the
L/Sgt Chakache (PW11) at some time after 9 00 p.m.
At 10 15 p.m. the accused himself reported to the charge
office. He was accompanied by his mother and sister. He stated that
shot dead his wife and Koma and he had then driven off and he
had afterwards thrown the 9mm pistol that he had used into Maqalika
Dam. He told L/Sgt Chakache that he had no licence for the firearm
and that he had purchased it from someone in R S A. The accused
also added that there was one bullet remaining in the gun and so he
had thrown it into the dam because he thought that he might
have killed himself with it. The accused was arrested and charged
Earlier, at shortly before 9.00 p m , W.O. Ntsele (PW7)
of the Police Transport Section was driving a police van to his home
When he reached the scene of the shooting he saw a
group of people standing about Mrs Qholosha (PW5) reported to him
happened W O Ntsele drove to the charge office and picked
up Tpr Mahanyele (PW1), who was then in the CID, together with
trooper. They went back to the scene and Tpr Mahanyele
became the investigating officer in this case
Once again, as in previous cases, I have to criticise
the tendency of the police to allow junior officers to investigate
cases that are almost certainly going to come before
the High Court for trial. Quite clearly such investigations should
out under the direct supervision of an experienced senior
officer Tpr Mahanyele did not do a very good job of investigating
case, but such a junior officer cannot be expected to
/do so ...
do so if he is not properly supervised and if he does
not have the advantage of working with and learning from a highly
The Warrant Officer was in the transport section and not
CID and so he considered it proper to hand over the case to his
who was in the CID. I do not think that this way correct
because the senior officer present at such an incident should in fact
remain in charge until he is relieved by a senior CID officer.
An investigating officer has a number of important
duties to perform at the scene and one of these is always to prepare
a simple sketch
plan of the scene of the crime showing the location
of all relevant items such as buildings roads, street lights, the
the body, blood stains weapons, empty cartridges, broken
glass and so on Dis-tances of one from the other should also be
The sketch plan is then handed into Court at the
commencement of the trial, with copies to the prosecution and
throughout the trial, the Court is able to follow the
evidence of the various witnesses so much more easily by making
the sketch plan whenever necessary.
When I asked Tpr Mahanyele why he had not drawn a sketch
plan of the scene he admitted that he did not even know what a sketch
was. And yet he was supposed to be the investigating officer in
a very serious double homicide case.
The consequence was that, at the end of the prosecution
case, the Court had to use up valuable time going
/to the ....
to the scene so as to obtain a picture of it that should
have been provided right at the start by the prosecution. I hope that
future the police will take steps to ensure that sketch plans are
always prepared, as well as that more senior officers conduct the
investigations of serious offences
All the eye-witnesses, including W.O. Ntsele, stated
that there wore working street lights at the scene at that tine. The
saw the lamps in place. In spite of this Tpr. Mahanyele
insisted that there were no street lights at all in that area A
without a power of observation is not a lot of use
W.O. Ntsele stated that the body of Koma was lying face
upwards under a street light. Tpr. Mahanyele described the injuries
as a ragged wound in the centre of the forehead, a ragged wound
on the right shoulder, other wounds to the left buttock, left thigh,
below the left armpit and one on the top of the head. He described
the wounds as all being at the front of the body, although I
see how that description could fit the wound on the buttock In fact
there were other wounds at the back of the deceased
investigating officer should have checked the body thoroughly
Both officers noted that the deceased had a pistul
inside a holster which was tucked into the waistband of his trousers
removed it and found that it was a Beretta 7.65mm
automatic pistol (exh.l) loaded with 8 live bullets, one of which was
in the chamber
and seven in the magazine. The safety catch was on
and the gun was cocked. It had not been fired
/Tpr Mahanyele .
Tpr Mahanyele then demonstrated an uncertain memory and
a lack of ability to count He first stated that the gun had only 5
in it and then later he handed in 8 bullets (exh.3) which he
claimed to have taken from the gun He found six spent 9 mm cartridge
cases (exh. 2) at the scene but, when describing the different places
where he found them, his total kept coming to seven rather
Eventually it appeared that he had found 2 cases outside Amelia's
house where 'Malapane was shot, one case near Koma's
body and three
cases on the corner near a street light Of course there may have
been others not found.
Three days later, on 25 May 1987, Dr Mohapi (PW10)
performed post mortem examinations on both bodies at the Queen
Elizabeth II Hospital,
Maseru, and handed in to Court her reports on
Teboho Koma (exh.A) and 'Malapane Lethunya (exh.B). The body of
Teboho Koma was identified
to the doctor by the deceased's brother,
Ekabang Koma (PW8). That of 'Malapane Lethunya was identified by her
father Matlore Thejane
On Koma were found nine injuries, all probably caused by
bullets entering or exiting from the body. At, least two were exit
but there may have been more. There was an entry wound in the
centre back of his head with a larger exit wound above his right eye
There was a wound high up on the right chest and another in the left
side under the upper arm. There were two in a direct line
through the left arm and it would appear that all three wounds could
have been caused by the same bullet entering the body
through the arm
There was an entry wound in the left small of the back
and another in the left buttock. Another in the left thigh both of
doctor thought were entry wounds, although I believe that
they could have been an entry and an exit if the bullet had passed
flesh without striking a bone.
The head wound smashed the skull and caused brain damage
resulting in death Mr Maqutu lavished praise on the doctor for her
reports, but I was not so impressed because, in fact,
several things were left undone.
No attempt was made to open the body so as to report on
internal injuries to bones and organs Some doctors seem to seize on
is probably the fatal injury and to ignore the rest. That is
not correct procedure All in juries must be examined and reported
in full. It is not always the obvious injury that eventually turns
out to be the cause of death. It is possible, for instance,
person to die of heart failure before actually being struck by a
bullet or stabbed with a knife, and I have dealt with such
Thus the investigating officer must request a complete examination
No attempt was made to locate and remove the bullets
from the body. This can easily be done with the aid of X-rays and a
It should always be done in gunshot cases as it is necessary
to know which are entry and which are exit wounds, and also to learn
how many bullets actually penetrated the body. In addition the
extracted bullets must be examined and reported on by the ballistics
expert or firearms examiner, who is supposed to be able to
calculate how close the gun was to the body at the time
of firing, and often to identify the weapon which fired the bullets.
But these omissions are much more the fault of the
police rather than the doctor It is absolutely essential that the
officer is always present at the post mortem
examination It is his duty to inform the doctor what the police may
be looking for,
such as entry and exit wounds, or what requirements
they have such as the extraction of bullets or pellets or other
It is also his duty to receive such bullets etc from
the doctor and then to take them to the firearms examiner. If the
not informed of these requirements he will probably do
nothing about them, as happened in this case.
Tpr Mahanyele, who claimed to be the investigating
officer, did not bother to attend the post mortem examination Even if
he had attended
I doubt whether he would have known what to do or
what to ask for. It is yet another reason for having an experienced
performing that duty
The post mortem examination of 'Malapane Lethunya (exh.
B) was more straightforward She was shot with one bullet which
left side under the rib cage and passed upwards at an
angle through the liver, heart and left lung and pulmonary vein and
exited on the inside of the right breast and passed
cause that breast and away. The of death was
perforation of the
and massive bleeding.
/If the . .
If the accused was correct when he said he fired seven
rounds from his gun, and one went into 'Malapane, the other six were
fired at Koma. He had nine injuries but five of those were
probably caused by only two bullets The two in the head by one
and the three holes through the left arm and into the left
side were no doubt caused by one bullet. That leaves four other
This would mean that all six rounds fired at Koma hit him,
three in the back, two in the front and one into the left side. Of
there would have been more certainty about this if the post
mortem had been as comprehensive as I have indicated.
Lieut. Telukhunoana (PW13) testified about the pistol
and ammunition exhibited He is a firearms examiner but, in my
a ballistics expert His qualification as a medical
laboratory technician is irrelevant to the science of ballistics
from a familiarisation visit of one week to the ballistics
section in Pretoria the witness has on]y worked with firearms for
two years It will probably take about 10 years of such work
before he can properly be called an expert.
The witness was apparently prepared to give an opinion
about the firing mechanism of a 9mm pistol which he had never seen or
and of which he did not even know the make or type. No
expert would ever do such a thing. There are quite a number of
countries in the world which manufacture 9mm automatic
pistols and I cannot accept the assertion of the witness that they
the same type of firing mechanism
As I have already pointed out, a firearms examiner
should have been asked to examine and report on bullets
ought to have been extracted from the deceased Koma.
The Lieutenant said that he had never been present at the examination
of a human
corpse in a gunshot case. He should rectify this omission
as soon as possible so as to acquire some firsthand knowledge of how
and pellets are affected by contact with and penetration of
the human body. Otherwise, when he does examine extracted bullets
he will not understand the significance of the distortions
caused to them by their passage into and through the body. Nor will
be able to estimate the range at which they were fired
Furthermore he should know at first hand about entry and exit wounds
by bullet Second hand information is not expert evidence
According to this witness the 7.65 Beretta pistol (exh
1) was test-fired and found to be in working condition* The eight
(exh.3) fitted that pistol and could be fired from it.
The six empty cartridge cases were 9mn and so of a larger calibre and
had been fired from a different gun. The witness put in his
report as exhibit C
The witness Cheseho (PW4) testified that he met the
accused a few days before this trial commenced Cheseho had already
made a statement
to the police but apparently he did not receive a
summons to attend the trial until after he met the accused.
Cheseho said they met at the accused's home and talked
about this case in which Cheseho was expecting to be called as a
witness. After discussing the matter the accused
suggested that Cheseho had forgotten
/some points ...
some points in his earlier statement. The first was
that they had found Koma and 'Malapane kissing each other inside the
second was that Koma came out of the van pointing his gun
at the accused The third was that Cheseho did not see where the gun
from that fired the shots and he merely heard the shots
Cheseho then stated in Court that he did not see Koma and 'Malapane
in the van nor in fact were they very close together when she
was talking through the van side window. He added that he did not
see Koma produce a gun. Cheseho stated that he was friendly with the
accused and they were drinking companions and there were
misunderstanding or grudges between them.
The accused testified on oath at considerable length in
his defence He did not dispute the general outline of the
but he did deny various allegations made by some of
He admitted that at the same time as he thought his wife
was conducting an affair with her uncle Koma, he himself had a woman
In spite of that he described himself as being "insanely
jealous" of his wife and that he had an obsession about the
He had heard that Komp had given 'Malapane an expensive watch
and large sums of money and so he started to spy on them He said
" I agree I shot both my wife and Koma. I
shot at Kome because he was holding a firearm
to shoot at me, to stop him, not to kill him. I did not
want to give him a chance to kill me. I agree he had an opportunity
me and he did not shoot at me."
Later, in cross-examination the accused said
" I was shotting in self-defence, stopping him
from coming back and fighting me. Shooting my wife was unintentional.
an accident. She was standing between us I was not reckless
to shoot them. She moved into it when I fired "
The accused admitted that he carried a loaded pistol
with him on the afternoon and evening when he moved around Maseru
his wife and Koma. He added that he usually carried it.
With regard to the testimony of Makhetla (PW3) that he
met the accused at the Lancer's Inn car park at 4 30 p.m and was
the car to drink a beer with the accused who was then
spying on his own wife, the accused denied that the conversation ever
place. It is not clear why the accused bothered to deny
something that he himself described as having happened in the absence
Makhetla It is not likely that Makhetla could or would have made
it up. There would be no purpose in doing on.
Concerning the alleged conversation with Letsie (PW14)
in the darts room of the Salang restaurant, when Letsie said the
him that somebody was going to die that day if he did
not die himself, the accused denied that he said anything at all to
because, so he said, he was in a hurry to follow Koma who had
just left the restaurant. This testimony, if true, would have
a measure of premeditation by the accused
/The accused . .
The accused admitted that most of Cheseho's (PW4)
testimony was accurate but he denied some parts, such as that the
the car before approaching Koma's parked van outside
Amelia's house, and that the accused got out for a few moments and
back into the car. This would probably have been to cock his
pistol ready to fire it Again, it could have been denied because it
was further evidence of premeditation.
The accused denied the testimony of Cheseho (PW4) and
Khopiso (PW6) who both said that 'Malapane was standing by the
of the van talking to Koma, who was sitting inside on
the driver's side. The accused's version was that 'Malapane was
the van kissing and cuddling with Koma who had pulled
her dress up and exposed her thigh. Cheseho and Khopiso were
about this and both remained unshaken and
adamant that 'Malapane was in fact standing outside the van at the
The accused's version to some extent supported his claim
that he was so provoked by what he saw in the van that he lost
started shooting. But, of course, that would never have
happened if he had not taken a gun with him in the first place, and
to make his claim less credible.
However, there was the unexplained fact that the
deceased Koma was also carrying a loaded pistol. The accused related
that he had
seen Koma with the gun on a previous occasion when the
accused and his witness Teboho Serobanyane (DW2) were at a place
Speedy Five Star restaurant in Maseru East at the
beginning of this
year They met the deceased Koma's wife and a man called
Tejane who tried to persuade Mrs Koma to go home with him. She
eventually got a lift home with the accused When they
arrived at home Koma appeared outside with a gun and fired it into
not at anyone in particular
None of the witnesses agreed with the accused that Koma
pulled out a gun when he got out of the van at Khubetsoana. This was
accused's initial defence, that he had to fire first in
self-defence. However, after that the accused chased Koma firing at
repeated from behind There was no longer any question of
self-defence then. The accused maintained that he had to keep firing
as to prevent Koma from turning round and taking a shot at him
But he also admitted that Koma never actually tried to shoot at him,
so that explanation is not credible.
According to the accused, when Koma fell down near the
streetlight he was still holding the pistol in his hand However,
stated that Koma did not produce a gun at all. Mrs
Qhobosha (PW5) went out of her house to look at the body of Koma and
not mention seeing any gun. Nor, indeed, was she questioned
about it in cross-examination, which she certainly ought to have been
since the accused was going to make this allegation in his defence.
Both of the police officers, Tpr Mahanyele (PW1) and W O
Ntsele (PW7), were certain that when they arrived at the scene at
9 00 p m. they found the pistol still in its holster tucked
into Koma's waistband and
loaded with live rounds The gun was cocked but it had
not been fired, and it would appear that it had not been taken out of
The accused suggested that somebody had interfered with
it and put it back into the holster He claimed as well that somebody
moved Koma's body But there was no apparent reason revealed for
doing this and no evidence at all to substantiate it. I cannot find
any credible evidence that Koma's pistol was ever produced that
evening nor that it was a visible threat of any kind to the accused.
But clearly Koma had the pistol with him and it seems that the
accused knew that Koma might be carrying it. Perhaps that was why
the accused himself was armed and why he may have stopped to cock his
gun before approaching Koma who was sitting in the van However,
accused did not say this.
The prosecution witnesses were cross-examined at length
and their testimony was strongly challenged, but they all remained
throughout. This was specially so with the prosecution's
main witness, Cheseho (PW4) He showed no apparent signs of
or agitation. He described the events simply and in a
straightforward and convincing manner. I was impressed by him as
being a witness
of the truth.
I do not believe that there was any question of the
accused acting in self-defence The deceased Koma did not produce his
he made no attempt to attack or to threaten the accused. He
merely tried to intervene in a normal way to prevent the accused from
assaulting 'Malapane outside the van, and he got shot at for his
Having received at least one bullet wound at the van,
Koma tried to escape. He was apparently rather over
weight as well as injured and so he could not move fast.
The accused is tall and looks fairly fit. I doubt whether he had any
in staying close behind Koma while he continued shooting
The last shot was no doubt under the streetlight outside
Mrs Qholosha's house. That was the fatal shot, fired into the back
head after he had fallen down helpless with several other
wounds already incapacitating him Mrs Qholosha said that she
the accused standing over Koma and firing his gun downwards at
him. I can find no good reason to doubt her testimony about this.
The accused admitted that he pursued Koma and kept
shooting at him until his ammunition had all been expended. Having
given up the
obviously unacceptable story of self-defence, the
accused claimed that he was provoked and angered by the sight of Koma
kissing and cuddling each other This was too much for
him on top of all the previous information that he had received of
meetings and expensive gifts.
If the accused did actually believe what he was told,
and what he claimed he saw at the scene, then I would agree that he
reason to display jealousy and to feel provoked. In law,
under s.3 of the Criminal Law (Homicide Amendment) Proclamation, 1959
42/59), it is a partial defence to a charge of murder if the
accused kills someone in the heat of passion caused by that person's
sudden provocation, and before there is time for his passion to cool.
This is not a complete defence but it reduces the capital
a conviction of culpable homicide
Mr. Maqutu for the defence in fact submitted that the
Court could convict the accused of culpable homicide on this
However, it is not quite as straightforward as
that. The provocation has to be "sudden" and there has to
be a complete
loss of control by the accused. That would clearly not
be the case if there was an element of planning or premeditation in
the accused did.
In this case the accused went out armed with a loaded
pistol and ho spent several hours deliberately and openly enquiring
searching for his wife. He followed behind Koma's van on
the same mission. It is clear that the accused was not only
at the time but he was actually out looking for
trouble. Thus, any provocation that he may have felt was not just
occurred suddenly and in the heat of the moment. It
was rather a feeling that had been building up all day, and indeed
for some time before that day
Even if the accused is believed with regard to his
allegation that he found the two kissing each other in the van, it is
the sort of thing that he was expecting to find and so it
was not likely to have come as a particular surprise to him. This
hardly be described as "sudden provocation",furthermore
the evidence indicates that the accused was well aware of what
doing at the time of the shooting. It was not a case of "seeing
red" and losing complete control
/of himself. ...
of himself In my opinion the defence of provocation is
not available to the accused with regard to the shooting of Koma.
The next question to be decided is whether or not the
accused intended to kill Koma and 'Malapane There are two types of
known to law. There is first the obvious actual intention
(dolus directus) in its ordinary grammatical sense That is, that the
accused meant to do the act with which he is charged or, at least,
that he foresaw the unlawful act as a certain consequence of his
Secondly there is what is known as the legal intention
(dolus eventualis) of an accused person That is where he does not
cause a particular result, such as death, which has resulted
from his conduct, but there is an appreciation or understanding by
accused that his actions entail a risk to life, and there is a
recklessness on his part as to whether or not death results (see S.v
Sigwahla 1967(4) SA 566 (AD)).
With regard to the shooting of 'Malapane (count 2), I am
not satisfied that there was proof beyond reasonable doubt that the
intended to kill her It seems more likely that it was Koma
whom he was after at the time and there is a possibility that
unfortunately got in the way when the accused started to
shoot at Koma
But the accused's action was clearly unlawful for they
were all standing close together at the time and there was a distinct
of hitting her with a stray bullet which he must have
/I consider . .
I consider that the proper verdict with regard to the
killing of 'Malapane is one of culpable homicide. The The Assessors
Turning now to the shooting of Koma (count 1), there is
some evidence of an actual intent to kill him because the accused
for him with a loaded gun which he knew how to use.
The accused then pursued Koma and shot at him when he tried to escape
van and further away when he ran towards the other
streetlight round the corner, and when he was down on the
ground. I have
no doubt that, at the time, the accused intended to
shoot and to seriously injure Koma. But I feel a slight doubt that
had then formed an actual intention to kill him.
However, I am in no doubt at all that, at the time, the
accused was well aware of the possibility and the risk of killing
from this repeated firing of the gun, and I find, too,
that there was an utter recklessness on his part as to whether or not
did ensure Consequently I find that the accused had a legal
intention (dolus eventualis) to kill Koma, and the offence committed
by him on count one was therefore murder.
Because of the particular circumstances of this case,
and the finding which I have just made, I am now going to consider
of extenuating circumstance: I am of the opinion that
counsel have already said all that can be said or argued, and that I
me more than sufficient material for a finding to be made
at this juncture (see Ntjanyana Phakoe v R. 1963-66 LLR 140
/I have already . .
I have already held that there was not sufficient
evidence of provocation of the accused by Koma which would have
reduced the offence
from murder to culpable homicide However, I have
explained that there are very special requirements in law for the
type of provocation
that must be proved in such cases.
In this present instance I have taken an overall view of
the evidence, and particularly of the lengthy explanation given to
by the accused himself of his conduct and of his very
strong feelings during the period leading up to the shooting
incident, as well
as at the actual time of the shooting.
From all this I have come to the conclusion that there
is evidence that the accused actually felt considerably
provoked, in the
ordinary way, and that a reasonable person, in
similar circumstances and conditions, might indeed have cause to feel
a degree of
provocation. Of course, this was no justification at all
for what he did, but nevertheless I am of the opinion that there were
circumstances for what he did and I now so find. The
Assessors are in agreement with this.
Accordingly, on count one, with regard to the killing of
Teboho Koma, the accused is convicted of murder in extenuating
On count two, with regard to the killing of 'Malapane
Lethunya, the accused is convicted of culpable homicide.
JUDGE 16th December, 1987
Mr Mdhluli for the Crown Mr. Maqutu for the defence
The accused is aged 33 years and he is no longer married
because his wife was one of the persons whom he killed. In making a
that there were extenuating circumstances in the killing of
Koma I have taken into account the element of provocation which I
bear in mind The accused is a first offender.
This was a very bad case in which the accused shot his
wife and then emptied the contents of the magazine of an automatic
the man he believed to be his wife's lover. The accused
is to some extent lucky to escape the extreme penalty and I cannot
a much more lenient view of his case than that
On count 1 the accused is sentenced to imprisonment
for 9 years.
On count 2 the accused is sentenced to imprisonment
for 5 years. The two sentences are to run concurrency
16th December, 1987 ORDER
The pistol and two packets of ammunition (exhibits 1, 2
and 3) are to be handed over to the Maseru Police for disposal.
16th December, 1987
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