IN THE HIGH COURT
OF LESOTHO In the matter of:
R E X
vs KEKELETSO MOHLOKI
Delivered by the Hon. Sir Peter Allen on the 14th day
of May, 1987
The accused is indicted on two counts. The first is of
the murder of his wife 'Maitumeleng Mohloki and the second count is
attempted murder of his cousin Tankiso Moerane. Both occurred
on 28th June 1985 at Ha Ramokhele in Mafeteng District. At the end
the prosecution case counsel for the defence submitted that there was
no case to answer.
The Crown called four police officers to testify and the
evidence of four other witnesses was admitted. This included the
report on the injuries sustained by the complainant Tankiso
in the second count and the post mortem report on the deceased in the
first count and brief evidence by a police photographer who
photographed the body of the deceased.
With regard to eye-witnesses, the complainant Tankiso
(P.W.6) revealed at the start of his testimony that he was, in
effect, a hostile
witness. He stated that he was so drunk
/at the time ...
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at the time that he did not observe what was going on.
Consequently he was abandoned by the prosecution. It could be that,
as a close
relative of the accused, he decided or was persuaded not
to testify against the accused. At any rate, as a witness he was of
to the prosecution or the Court and he must be disregarded.
The only other eye witness was Litlhong Fosa (P.W.5) who
testified that she was sitting in the kitchen at the time of the
A beer drinking party was going on in the sitting room next
to the kitchen and a number of people were drinking and some were
to music on a cassette player. Beyond the sitting room was a
bedroom in which two children slept on the bed. Under the bed was a
Commando sub-machine gun, kept there by the accused's wife (the
deceased) who was
The Witness saw the deceased dancing in the doorway of
the bedroom. She saw the accused go into the bedroom and then heard
The deceased fell down in the door-way with a bullet
through her right eye and brain and another through her right breast.
went right through her body and it appears that one of
those bullets then went on through the upper chest of Tankiso who was
at a table near to the deceased.
Nobody saw who picked up the gun and who fired it or in
what circumstances it was fired. The witness denied hearing any
seeing any quarrel between the accused and the deceased.
There was no certain evidence of whether or not there
could have been someone else in the bedroom. It is probable
that there wag not anyone else there and it is probable
that the accused fired the gun but these were not proven facts. Even
did fire the gun the circumstances are not known. Was it fired
accidentally or negligently or deliberately? Was the accused provoked
in some way by the deceased or was he so drunk that he did not know
what he was doing ? It may well be that the accussed could answer
some of these questions but he does not have to do so. He need say
nothing at all. It is not the duty of the defence to fill in the
in the prosecution case. The defence does not have to prove anything
at all in a case of this sort.
It is up to the prosecution to prove its case beyond all
reasonable doubt. At this stage, that is, at the end of the
the Court has to consider whether or not the
prosecution has made out a prima facie case against the accused upon
which a reasonable
Court might convict the accused. In other
words, there must be a case based on proven facts on which the
accused could be convicted If no further
evidence is adduced to the
Court by the defence.
Yet, as I have already pointed out, what we have is a
list of probabilities and a strong suspicion, perhaps, that it was
who shot and killed the deceased. But does this mean that
there is no doubt about it? The Court cannot convict anyone based
suspicion or mere probabilities. The Court cannot speculate
about what may or must have happened. It can only draw conclusions
upon the facts and circumstances described by the witnesses.
Murder is almost serious crime and there has to be
absolute certainty before a Court can convict anyone of it. Any
at all about the evidence mean that
the prosecution has failed to make out its case.
/This particular ...
- 4 -
This particular case, in my opinion, is full of such
doubts. The credibility and reliability of the eye-witness Fosa is
not a question
to be decided at this stage. But the facts are very
relevant and she really did not tell the
Court anything upon which a definite finding can be
police and medical evidence is largely technical and it
is based on what was found and seen after the crime. It
does not advance the case against the accused as far as
themain facts in issue are concerned.
It is strange that none of the people in the sitting
room, so close to the deceased, could be produced to testify as to
happened. Were they all so drunk or so unhelpful that
they were discarded as witnesses? This is not known.
At any rate, upon the meagre evidence before the Court,
I am satisfied that the Crown has failed to make out a prima facie
the accused on the two counts on which he was indicted.
The Assessors agree with me.
Accordingly, the accused is acquitted on both counts and
he is to be released forthwith.
P. A. P. J. ALLEN
14th May 1987
For the Crown : Mr.Mthluli
For the Defence : Mr.Pitso Accused present on bail
P. A. P. J. ALLEN JUDGE
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The firearm (exhibit 1) and the spent bullets (exhibit
3)and empty cartridge cases (exhibit 2) are to be handed over to the
JUDGE. 14th May 1987
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