IN THE HIGH COURT OF LESOTHO
In the matter of:
Delivered by the Honourable Sir Peter Allen, on the 7th
day of April, 1987.
The Accused is indicted on a charge of murdering Sekete
Makae, a 20 years old student, at Thabana-Morena on 10 June, 1984.
At that time the accused was a Private in the former
Lesotho Paramilitary Force stationed at Mafeteng. On 10 June at 5.30
Moroeng (who is now a 2/Lt. in the R.L.D.F.) detailed two
Privates for guard duty at the home of Mr. Nthebe, who was then a
of Parliament, at Thabana-Morena. The two Privates were the
Accused and Private Likhapha Molatela (P.W.2 - now a Private in the
W.O. Moroeng (P.W.1) checked that each man had an AK 47
automatic rifle and four magazines each containing 30 rounds of
(12 rounds each). They were sent to Thabana-Morena in a
Land Rover and arrived there at about 6.30 p.m.
At around 7.00 p.m. they were joined at Nthebe's
home by Tpr. Ntoeba Pomela (P.W.7) of the L.M.P. The
Accused had decided to check the area and was already walking around
when Pomela reported on duty. The Accused was wearing a
camouflaged military uniform with a cap and a grey coloured blanket
of his uniform. Several Prosecution witnesses stated that he
was wearing two blankets, but the Accused denied that.
In the village that evening there were a number of
people attending a beer-drinking at the house of one Meisi. Among
were four of the Prosecution witnesses, Francis
Moletsane (P.W.3) a miner, Ben Monyane (P.W.4)a bricklayer, Shai
Mphana (P.W.5) a
miner, 'M'abolaoane Nyareli (P.W.6) a married
domestic servant. Also present was a young woman called Matseliso who
was not called
as a witness.
What exactly happened at Meisi's that evening is not
entirely clear. It has to be remembered that it was nearly three
years ago and
that the witnesses were drinking at the time and some
or all of them may have been drunk.
According to Moletsane (P.W.3) he went outside, Meisi's
to urinate at some time between 7 and 8 p.m. He met the girl
was about to enter the house. They exchanged greetings
and she went inside. When Moletsane was ready to go back inside, he
Accused whom he
had not seen before. Moletsane said that Accused told
him he was silly and that he would spank- him. There seemed to be no
for this statement and Moletsane asked the Accused why he said
it but the Accused merely repeated it. He then pushed Moletsane by
poking him in the neck with the muzzle of his gun. Moletsane
re-entered Meisi's leaving the Accused outside. The whole incident
to have been pointless and meaningless.
Ben Monyane (P.W.4) told a different version. He said he
was drinking with Moletsane and others that evening and that he saw
the open door that the accused (whom he had seen before and
recognised) was apparently quarrelling with Moletsane, though he
not hear what they were saying. Moletsane came in and told them
about being poked with a gun by the Accused and then the Accused
entered and ordered them all to go out-side. There were about 10 of
them and they went out and stood in front of the Accused. Monyane
said that the accused then took off his two blankets and asked those
present if the people of that village were silly. Nobody replied
the Accused allowed them to go back into Meisi's. The Accused picked
up his blankets and followed them inside. Once again a pointless
Shortly after this, the deceased boy Sekete arrived and
spoke to his uncle, Shai Mphana (P.W.5), who was one of their
The boy told his uncle that
he was wanted at home by Shai's mother. Sekete waited
while Shai finished his beer and then they left. Shai went first with
friend Matseliso followed by deceased and Monyane. Moletsane
Shai Mphana (P.W.5) told yet another version. He said
that they were drinking at Meisi's when the Accused armed soldier,
whom he had
seen before, arrived and entered the house and sat down.
The Accused then stood up and said, "Men, you go out. 1 see as
boys at Majakaneng are silly." They went outside
following the Accused who made them stand in front of him. The
off his blankets and put them down. Shai then told
Monyane and Moletsane that they should go back inside, which they all
leaving others outside. They were not called back by the
Accused and merely continued with their drinking. Shai said that the
did not come back inside, which contradicts Monyane's
version. However, the incident seems to be equally pointless and
Shai said that his nephew Sekete then came to fetch him
and he went outside with Matseliso followed by Sekete and Monyane,
said, followed about 24 paces behind them.
The fourth eyewitness, the woman 'Mabolaoane (P.W.6)
told another version. She said that the girl
Matseliso was the lover of both Shai and the Accused.
'Mabolaoane said she was drinking there and she saw Moletsane go
times but she knew nothing of the incident with him
and the Accused. She said that the Accused, whom she knew, came in
and he sat down next to her and he did not order anyone to
go outside. He wore two blankets and carried a gun. The Accused asked
her where Matseliso,his lover, was and she pointed to her. He then
asked 'Mabolaoane where Matseliso's husband was. She said the
was referring to Shai although they both knew he was not married to
Matseliso. The Accused then said, "Yes, I see Shai.
going to whip him until he urinates."
'Mabolaoane replied, "When you come to Majakaneng
are you coming to whip men?" to which he said nothing. Then Shai
went out holding hands and the Accused followed them.
She said that other people left but she did not see the deceased whom
That seems rather strange since the other witnesses said he
was with Shai. However, like the others, her vision and memory may
been affected by the passage of time and the amount she drank.
When she went outside, she saw the Accused standing in
the fore-court while Shai and Matseliso were standing
talking some 15 paces away from him. She then went home.
After leaving Meisi's, the witness Monyane (P.W.4)
and the deceased followed behind Shai and Matseliso.
There was moonlight and Monyane said he heard footsteps and saw the
behind them. The Accused asked him if he was Shai and
he said he was not and that Shai was in front of them. The Accused
them and reached Shai but Monyane could not hear what was
said. He saw the Accused move back from Shai and take his gun from
shoulder where it was slung. The Accused then fired once into the
air. Monyane said he and Shai and the deceased ran away and while
they were doing so he heard several more shots. Monyane thought that
the Accused jumped over a fence and cut across to arrive in
them oh the road, for that is where he next saw the Accused who then
fired some more shots without saying anything. Monyane
down into a ditch by the road side keeping his head down. After
further shooting he heard the Accused go away. Monyane
and Shai then
stood up and found the deceased lying with his head in the ditch and
blood on the ground.. They lifted him up from
the ditch and he
appeared to be dead. Moletsane (P.W.3) joined them at that point.
Shai Mphana (P.W.5) described how he heard footsteps
behind him and he heard a voice asking for Shai. He heard Monyane
Shai was ahead and the Accused then approached and asked
him if he was Shai, which he admitted. The accused then unslung his
and Shai moved backwards and the Accused fired into the air. Shai
and ran away with the others. He heard several shots.
The rest of his story was the same as Monyane's. Neither of them said
Matseliso was or what she did and the Prosecution did not call
her to testify.
Both Monyane and Shai said they went to Nthebe's to
report the shooting of the deceased. They both denied being armed
with any sticks
or knobkerries or other weapons and they said that
the deceased was not carrying a knife. They also denied chasing or
Private Molatela (P.W.2) and Tpr. Pamela (P.W.7)
described how they heard shooting just after 7 p.m. and
then the Accused arrived and reported he was the one who fired the
people had attacked him. He appeared to be frightened
and they told him to go inside Nthebe's house and stay there so that
not be seen by the angry villagers who were then approaching
the house to. report the incident. Pomela said that there were more
than 20 people and he heard them say; "Let's walk to Nthebe's
home so that soldiers can kill us like they killed Sekete."
he added that the crowd was not hostile. Pomela also said that the
Accused told him that the deceased was carrying a knobkerrie
he did not mention a knife.
The matter was reported to Mafeteng and Captain Macheli
and W.O. Moroeng (P.W.1) took a vehicle and arrived at the scene at
8.30 p.m. that night. W.O. Moroeng
said he found the Accused and Private Molatela at
home and examined their firearms. Molatela's had not
fired but the Accused's gun had been fired and there
six rounds of ammunition missing. W.O. Moroeng seized
the Accused's gun (exhibit 1) and asked why the Accused
had fired it. The Accused replied that the villagers had attacked
he ran away after they had been fighting over a certain
woman. He admitted firing six rounds.
W.O.Moroeng handed the gun over to Detective Tpr.
Makoetje (P.W.8)who followed Moroeng and the Accused in a separate
vehicle to Thabana-Morena.
Next day Makoetje returned to the scene
and picked up nine empty cartridge cases and one live round. They
were in different places
on and off the road and some were about 25 paces from
rest nearer to the house. The gun and cartridge cases
were sent to the ballistics expert in Pretoria from
wherethey were returned with a report written by Detective
W.O.Du Toit dated 17 October 1984 (exhibit B). The report showed
that an examination of the markings on all nineempty cartridge
cases showed that they had been fired fromthe same gun (exhibit
The body of the deceased was taken to Mafeteng by W.O.
Moroeng and Tpr. Pomela.(P.W.7) where a post mortem examination was
by Dr. Tlale, whose report (exhibit A) was admitted and put
in by consent. This showed a small punctured wound in the chest with
a larger exit
wound in the back just below the ribs. The cause of
death was from loss of blood. The body was identified to the doctor
Makae, the father of the deceased whose evidence of
identification was admitted by consent.
The Accused, now aged 25 years, elected to testify on
oath and called no witnesses. He described how he and Pte. Molatela
went on duty that evening at Nthebe's home. He told Molatela
that he was going to walk round the village and check the area. He
that he did this because there were rumours that Nthebe could be
attacked by members of, the then Lesotho Liberation Army (LLA) who
were often to be found in local bars. He heard a noise in the village
as if people were fighting and went there in that direction
Meisi's home. He said that Matseliso was his lover and he knew her
friend 'Mabolaoane (P.W.6). At Meisi's he found three unknown
standing outside and asked them about the noise. They did not reply
so he went inside. He saw Matseliso inside sitting with a
man whom he
identified in Court as Shai (P.W.5). He asked 'Mabolaoane what was
the relationship between Matseliso and Shai because
he said he did
not want to continue his own relationship with Matseliso if she had
found someone else to go with. 'Mabolaoane told
the Accused that
Matseliso and Shai were lovers. This upset the Accused and he went
outside without saying anymore to 'Mabolaoane
and without speaking to
Matseliso. The Accused several times denied telling 'Mabolaoane that
he would beat Shai
-10-until he urinated, adding that she was lying about
He said he only entered the house once and that
'Mabolaoane was the only person there to whom he spoke. He denied
to leave the house. He said he was dressed in a
military cap and camouflaged uniform with one donkey-coloured blanket
over it. He
carried an AK 47 rifle with four magazines containing 120
rounds of ammunition.
He denied Moletsane's (P.W.3) testimony that the Accused
had called him silly and had then pushed him with his gun, and said
was lying too.
The Accused said he remained standing outside Meisi's
for about five minutes after he went out., He then saw Shai come out
Matseliso by the wrist. She seemed to be reluctant to leave
but she said nothing. The Accused went up to Shai and said, "Don't
drag her away. You can see she's drunk." Shai replied, "You
can't tell , me that. Why do you look down upon me so much?"
The Accused explained in Court that he was not then
trying to take her away from Shai but he only wanted to prevent Shai
her by dragging her away. Shai then bent down and picked
up a stone and the Accused then unslung his gun and poked Shai in the
with the butt end of the gun. He did not remove his blanket.
a group of about fifteen people came towards him from
the house and he retreated. One threw a stone at him which missed him
ran towards the road; He stopped near some trees which were
dense and he looked for a way of escape. The people were running
him and shouting and he saw that Shai had by then acquired a
and that others were throwing stones at him. So he fired
a burst of three rounds automatic into the air (the gun
was switched to automatic fire) but the people kept
advancing. He found a way through the trees and jumped over a fence
into the road
and ran in the direction of Nthebe's house. They
followed him still throwing stones. He saw one in front who came
close to him carrying
an unclasped knife which he held up as if about
to stab the Accused. Fearing that he was about to be stabbed, the
round as he ran and fired another burst of three
rounds. The man jumped upwards and then fell down. The Accused stated
that he had
not intended to hit him but,' even if he had hit him, it
was only to disable him by shooting him in the leg.
The other people were now closer to the Accused so he
did not stop but he kept running. He heard one of them say, "Oh,
shot him. Let's go for him. He would rather kill us all."
They stopped pursuing the Accused when they could
no longer see him. When he reached the post office he
met Pte. Molatela (P.W.2) and a policeman (P.W.7). The
Accused was frightened and he reported that he had shot
someone and they should hide there. They stayed there for about three
until the people had passed by on their way to Nthebe's house
where they raised an alarm.
The Accused and his colleagues then went to Nthebe's
where many people had gathered. The policeman (Pomela) told the
Accused to go
inside Nthebe's house and stay there so as not to
provoke the people outside. The accused said that by then he was very
and confused and he remained in the house out of sight
until Captain Macheli and W.O. Moroeng arrived and questioned him.
said that he told them about the people attacking him
with stones, knobkerrie and nknife. The officers took his gun and he
escorted to Mafeteng where he was interrogated first by the
officer-in-charge of police and then by Detective Trooper Makoetje
The Accused insisted that he only fired six rounds and that
he knew nothing about the other three fired rounds and the one live
that Makoetje had picked up at the scene.
However, the report of the ballistics expert (exhibit B)
clearly states that all nine rounds were fired by the same gun. I
likely that the Accused fired another burst or possibly
fired more rounds in the two bursts than he stated. It does not
since it is clear that the bullets were all fired by the
same gun and the Accused admitted firing at and hitting the one
deceased) who was shot that night.
The implication, from the rather muddled testimony of
the Prosecution witnesses, was that the Accused intended to shoot
Shai and shot
the deceased by mistake or possibly by shooting
negligently at random.
I find this theory difficult to believe because the
Accused had several opportunities to shoot Shai that evening, at
he saw him and stood near him. There was no need for him
to go running about in the dark outside for that purpose.
The circumstances of the incident seem to me to fit more
closely to the Accused's version that a group of people became
him and chased and attacked him. I do not believe that
the Accused was as innocently involved with those people as he
have no doubt that he acted provocatively at Meisi's. But
the Prosecution witnesses who were there were not only rather
mistaken and untruthful as a result of their drinking and
the passage of nearly three years since the incident. They were also
something from the Court and, as witnesses, I found them
unimpressive. As I indicated earlier, their version of events was in
senseless and meaningless. But that is not very surprising since
they were telling
the, Court only a part of what actually happened.
I am inclined to believe that both the Accused and the
witnesses acted provocatively towards each other and that threats
by both sides. I believe that a group of people did chase
the Accused and that they threw stones at him. I am also inclined to
that the deceased attacked the Accused with a knife or that
the Accused believed that he was being so attacked and so he turned
fired in the direction of the deceased. In other words he was
acting in self-defence.
I do not consider that there is sufficient evidence that
the Accused intended to kill the deceased. The question is whether
acted properly in self-defence or whether he went too far
and fired his gun unnecessarily.
The general principles which guide the Court in
considering whether or not the Accused acted in self-' defence were
set out concisely
in R v ALTWOOD 1946 AD 331. They are:
" (a) That the accused had been unlawfully
attacked and had reasonable grounds for thinking that he was in
danger of death or
(b) That the means of self-defence which he used were
not excessive in relation to the danger;
(c) That the means he used were the only, or least
dangerous, means whereby he could have avoided the danger.. "
But it should be remembered that the decision as to
whether the means used by the Accused were excessive or that he used
dangerous weapon available must depend very much upon the
circumstances. Anyone who has been attacked or in a position of
knows well that his feelings and thought processes were very
different from one who merely sits in safety in an office or at
discussing the matter afterwards. There is the element of fear
and darkness and excitement which affect
his actions and reactions.
In the UNION GOVERNMENT v BUUR 1914 AD 273 at 286 it was
" Men faced in moments of crisis with a choice of
alternatives are not to be judged as if they had both time and
to weigh the pros and cons. Allowance must be made for
the circumstances of their position."
In the present instance I accept that the Accused , was
being chased by a hostile, stone-throwing mob and that he was
the deceased with a knife and that he believed that he
was about to be stabbed. The only weapon he had and the only means of
available to him was his gun. In those circumstances, I
do not think that he went too far in firing at the deceased. I do not
any evidence that the Accused intended to kill the deceased but
only that he desired to prevent him from stabbing
the Accused, As such he believed that his life was in
danger and he reacted reasonably in the circumstances, and that
he was acting in self-defence. The Assessors agree.
Accordingly the Accused is acquitted of the offence of
murder and his bail is discharged and he is to be released
P.A.P.J. ALLEN JUDGE
The gun (exh.1) and the ammunition (Exhibits 2 and 3)
are to be handed over to the Police for transmission to the Defence
For Defence : Mr. Mphutlane For Crown : Miss
Accused present. Judgment delivered.
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