CRI/T/2/66 IN THE HIGH COURT OF LESOTHO
In the matter of :
R E X
MOTLASELO JOHANNES MOLAPO
Delivered by the Hon. Mr. Justice B.K. Molai on the
5th day of January, 1987.
The accused is before me on a charge of murder in that
upon or about the 4th April, 1985 and at or near Thibella in the
Maseru he unlawfully and intentionally killed one Ezekiel
Bashemane. He has pleaded not guilty to the charge.
At the commencement of the trial, Mr. Ramolibeli
who represents the accused in this trial informed the court that the
defence admitted the depositions of W/0 Fuma Sgt. Mohau, Likeleli
Morakabi, Nkhala 'Neko, Captain Motebang Ramashamole, Pte Mochesane,
D/Tpr. Makhakhe, Dr. Taoana and T.M. Moahloli who were, respectively,
P.W.1, 2, 4, 5, 7, 9, 10, 11 and 12 at the proceedings of the
Preparatory Examination. Mr. Lenono for the crown accepted the
admissions and the depositions of P.W.1, 2, 4, 7, 9, 10, 11 and 12 at
the Preparatory Examination became
evidence, in terms of the
provisions of S.273 of the Criminal Procedure and Evidence Act
1981. It was unnecessary, therefore, to call the deponents as
witnesses in this trial.
The evidence of D/Tpr Makhakhe who was P.W.10 at the
Preparatory Examination, was that he was a member of the C.I.D. On
of 4th April, 1985 he heard gun reports from Thibella
location. As a result, he proceeded to the location where he found a
of people and the dead body of the deceased
2/ next to -......
next to Morakabi cafe. He examined the body for injuries
and found that it had three bullet wounds on the left side of the
On inspecting the surroundings he found three shells of a
rifle. He took possession of the shells which were handed in as
at the Preparatory Examination.
The evidence of D/Tpr Makhakhe that he found the
deceased dead in the street of Thibella location with three bullet
wounds on the
abdomen was confirmed by Pte Mochesane (P.W.9 at the
Preparatory Examination) who also testified that he accompanied the
it was conveyed to the mortuary and it sustained no further
The evidence of Dr. Taoana who was P.W.11 at the
Preparatory Examination was that on 9th April, 1985 she carried
out an autopsy
on a dead body of a man. The body was identified
before her as that of the deceased by W/0 Fuma and Sgt. Mohau. That
by W/0 Fuma and Sgt. Mohau who were, respectively,
P.W.1 and P.W.2 at the Preparatory Examination. The medical doctor
death was due to massive abdominal bleeding resulting from
bullet wounds on the stomach. I am prepared to accept as the truth
unchallenged evidence of Dr. Taoana that the deceased had
died as a result of injuries found on his abdomen.
The court heard the evidence of P.W.2, L/Sgt Mohlahatsa,
who told the court that he and the deceased were members of the Royal
Mounted Police (R.L.M.P.). They both lived at the old police
quarters in Maseru. On the evening of 4th April, 1985 at about 7.30
p.m., the deceased requested him to accompany him to Thibella
location where he wanted to buy some meat at Morakabi Cafe. They
to the cafe and were not armed with anything.
As they entered the location, P.W.2 and the deceased met
four (4) men who were walking in the opposite direction. They greeted
men by saying"Lumelang banna" (loosely translated
"hello men"). Those men appeared to be dissatisfied by the
greeting for they murmured something they could not follow. P.W.2
and the deceased, however laughed and ignored
3/ those men
those men. When they came to the cafe, P.W.2 and the
deceased found that it was already closed. They went into the
adjacent room and
inquired whether there were some cooked chicken
legs. They were told that there were none and so P.W.2 and the
deceased left. After
going through the gate of Morakabi cafe, P.W.2
noticed there was a person coming behind him and the deceased. When
he came close
to them that person said : "I am the one".
P.W.2 and the deceased then began walking slowly so that they could
that person was saying those words. That person walked
passed them still saying "1 am the one". Immediately
walking passed P.W.2 and the deceased,that person stopped,
turned towards them and produced a rifle from underneath his
He was still saying the words: "I am the one".
P.W.2 and the deceased then stood still. By the aid of the street
P.W.2 recognised that person as the accused.
When the deceased tried to by-pass him, the accused
opened fire with his automatic rifle and the deceased dropped to the
took to his heels and returned into the house from
where they had inquired about the cooked chicken legs. He reported to
who were in the house that the deceased had been shot. In
as far as it is material, the evidence of P.W.2 was corroborated by
of the women who were in the house viz. Likeleli Morakabi and
Nkhala 'Neko. They were respectively P.W.4 and 5 at the Preparatory
P.W.2 eventually went to Tea Blues restaurant in search
of assistance. He was helped by one Ntholi who conveyed him in
to the police headquarters where he reported to Lt. Col.
Makoaba. Both Ntholi and Lt. Co. Makoaba were, however, not called as
in this trial.
It is common cause that on the day in question, 4th
April, 1985, the accused, P.W.3 Corporal Makhabane Kholopane, Pte.
Pte. Mphaphathi were assigned for duty at the
International Airport at Thota-Moli.when they knocked off duty at
Thota-Moli, the accused
, Pte Mochesane and Pta. Mphaphathi decided
to go for drinks at the home of P.W.1, Alice Mats'osa, at Thibella
Location. They found
4/ already drinking
already drinking at P.W.1's place. Although the accused
claimed that they were drinking pineapple and bottled beer P.W.1 was
that she served the accused and his companions with
only pineapple and not bottled beer. That was, indeed, confirmed by
I am satisfied, therefore, that the accused was not
being honest with this court when he said he and his colleagues were
beer at the home of P.W.I on the evening in question.
Be that as it may, it is common cause that when the
party eventually left P.W.1's house, the accused remained behind and
was the last
to leave. P.W.I confirmed his evidence that he remained
borrowing some money and she actually lent him M10. After the
left her house, P.W.1 heard a gun report but she did not
go out of the house to find what it was.
According to P.W.3, he left P.W.1's place after Pte.
Mochesane and Pte. Mphaphathi had left. When he was about 50 paces
away, he saw
that the accused was also following him. Thereafter he
noticed that the accused was having an altercation with another man.
and intervened by separating them. That man then left and
when he joined the tarred road from Seputana robbots to the airport,
the direction towards the airport. P.W.3 said the deceased was
known to him. He was positive that he was not the person who was
an altercation with the accused.
Having separated the accused and that other man, P.W.3
left and continued on his way home. After passing Seputana robbots he
the report of an automatic rifle from the direction of the
location. He was worried about the accused and so he returned
the location. On the way he met the accused who informed him
that he had already shot a person.
The accused's explanation was that he had been
threatened with something that looked like a firearm by three people
and he shot one
of them. On his (P.W.3's) suggestion they went
5/ and reported
and reported the incident to Captain Ramashamole. That
was confirmed by the Captain himself according to whose testimony he
accused's rifle, examined it together with its magazine
and found that three bullets had been fired from the rifle. He
brought the accused to the police charge office and kept
the rifle which he later handed in as exhibit at the Preparatory
The evidence of T.M. Moahloli, the magistrate, was that
on 9th April, 1985 the accused appeared before him wishing to make a
He administered the usual warning to the accused and asked
him preliminary questions the replies to which were recorded as in
reneoed form. The accused was allowed to make his statement which
the magistrate reduced to writing at the time of making.
In his statement, Exh "B", the accused told
the magistrate that on the evening in question, 4th April, 1985,
P.W.1's place at the location on his way home at the R.L.D.F.
headquarters. As he passed next to Morakabi cafe he met three men who
inquired about his names. He ignored those men and continued on his
way home. After he had walked passed them those men asked why
not reply to their question. He then told them that he was a soldier
and asked them what it was that they wanted. Shortly
looked back and noticed that there was a person following him. That
person was raising up his hand and about to strike
As the activities of the insurgents were, at that time,
rife in the country particularly in the locations, the accused
the person who was following him was an insurgent about
to kill him. He immediately removed his rifle from the shoulders and
at that person in self-defence. P.W.3 then came to him and asked
what the matter was. He (accused) explained what had happened and
the suggestion of P.W.3 they went and reported to captain
Considering the evidence as a whole, it seems to me that
it is not really disputed that the accused is the person who on the
of 4th April, 1985, shot and killed the deceased at Thibella
location. The only question is whether
6/ or not he
or not he did so in self-defence.
In his confession to the magistrate, the accused stated
that only one person was attacking him on the night in question. He
this statement in his evidence before this court. But
according to the evidence of P.W.3 the accused's explanation was that
people were attacking him when he shot one of them.
I observed P.W.3 as he testified before me. He
impressed me as a truthful witness. If the accused's evidence
that only one person
had attacked him were to be believed, it would
appear that he lied to P.W.3 in saying three people had attacked him.
of P.W.2 is, however, that he was with the deceased when
the accused shot him without any provocation at all. P.W.2
me as a truthful witness. I am prepared to accept his story
as the truth and reject the accused's version as false on this point.
That being so, I have no alternative but to come to the conclusion
that the accused's claim that he shot the deceased in self-defence
yet another of his lies. I reject it as false and accept as the truth
P.W.2's evidence that the deceased was shot and killed in
I am convinced that in shooting the deceased on the
upper portion of his body, the accused realised that death was likely
He nonetheless acted reckless of whether or not it did
occur. That granted, there is not the slightest doubt in my mind that
the deceased as he did, the accused had the requisit
subjective intention to kill, at least in the legal sense.
In the premises, I find the accused guilty of murder as
My assessor agrees with this finding.
JUDGE. 5th January, 1987.
Crown : Mr. Lenono,
Defendant: Mr. Ramolibeli.
Having convicted the accused of murder, I am now
enjoined by S. 296(1) of the Criminal Procedure and Evidence Act
1981 to state whether or not there are any factors connected
with the commission of the crime,tending to reduce the moral
blameworthiness of his act.
In this regard there was evidence that shortly before he
killed the deceased, the accused had been drinking pineapple
an intoxicating beverage. He must have, therefore, been
some what intoxicated. Now, as Holmes, J.A. once put it in
S.v. Ndhlovu (2) 1965 (4) S.A. 692 at 695:
"Intoxication is one of humanity's age-old
frailties, which may, depending on the circumstances, reduce the
of a crime, and may even evoke a touch of
compassion through the perceptive understanding that man,
seeking solace or pleasure
in liquor, may easily over-indulge and
thereby do the things which when sober he would not do.
I am prepared to accept that by reason of accused's
intoxication the question whether or not there are any factors
tending to reduce
the moral blameworthiness of his act must be
answered in the affirmative. The proper verdict is therefore that of
guilty of murder
with extenuating circumstances.
9 years imprisonment.
B.K. Molai JUDGE
5th January, 1987.
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