IN THE HIGH COURT OF LESOTHO
In the Matter of :
v TSOTSI KAIZER KOLOTI
Delivered by the Hon. Mr. Justice B.K. Molaion
the 12th day of January, 1987.
The accused appears before me charged with the crime of
murder on the following allegations:
"Upon or about the 10th day of April, 1985 and at
or near Mokoallong in the district of Berea, the said accused did
and intentionally kill one Mohai Rapapa."
He has pleaded not guilty to the charge.
From the typed record of the Preparatory Examination,
it appeared as if the depositions of the witnesses were recorded by
different magistrates viz Mr. Mapeshoane and Mr. Ramashamole.
Although he did not give evidence at the proceedings of the
Examination, Mr. Mapeshoane was called as a witness in
this trial to enlighten the Court on this point. He assured the court
he alone had presided over the Preparatory Examination
proceedings. The name of Mr. Ramashamole as the magistrate who also
over the proceedings of the Preparatory Examination was,
therefore, typographical error.
The evidence of P.W.2, D/Tpr. Seboka, was that,
following information received, on 11th April, 1985 he proceeded to
the house of one
'Mamothenjoa Qekisi at Mokoallong where he found a
dead body of a man who was identified to him as the deceased. He
examined the body of the deceased
2/ for injuries.
There was a single open wound below the left breast.
Before conveying the body in a police vehicle to T.Y. mortuary, P.W.2
accused's house but found him not in. According to P.W.2 the
body of the deceased did not sustain any further injuries whilst it
was being transported from Mokoallong to T.Y. mortuary.
P.W. 1, Dr. Sendyose, told the court that he was the
medical doctor who, on 16th April, 1985. had performed an autopsy on
body of a man at T.Y. mortuary. He confirmed P.W.2's
evidence that the external examination of the body had revealed a
single 5 cm
long stab-wound on the left side of the chest between the
5th and the 6th ribs. P.W.1's evidence was corroborated by that of
Mosehlana Rapapa, that the latter had identified the body as
that of the deceased. According to P.W.I, the deceased's hands,
and legs were covered with blood thus suggesting that the
deceased was standing erect when he was stabbed.
On opening the body of the deceased, P.W.1 found that
the stab wound had penetrated the chest wall making a 4 cm cut
through the heart.
The pericardial sac was filled with blood. There
was also about one liter of blood in the chest cavity and the left
lung had collapsed.
From these findings P.W.1 formed the opinion that
a long sharp instrument could have been used with severe force to
inflict the injury
and death was due to the resultant bleeding into
the chest cavity and the pericardial sac.
I can think of no good reason why the evidence of P.W.1
that the deceased died as a result of the stab wound found on his
be doubted. I am prepared, therefore, to believe him on
this point. The salient question that immediately arises is whether
the accused is the person who inflicted the injury and
consequently brought about the death of the deceased.
In this regard, it is common cause that on 10th April,
1985, there was beer selling at the home of P.W.6
'Mamothenjoa Qekisi. The accused, Leporoporo Mohokare,
'Maboteng Koloti.the deceased and many other people attended.
Acccordlng to P.M.7. 'Maboteng Koloti, the accused was
the son. of the elder brother of her husband. On the evening of 10th
1985, she arrived home from. T.Y. town. She then called at
P.W.6's house where she found the accused and other people. The
asked her to buy him some beer and she gave him 40c with
which to buy pineapple beer. She then returned to her house to serve
to her children after which she went back for drinks at the
house of P.W.6.
On arrival at P.W.6's place, P.W.7 told the accused that
his meal was ready at her house. The accused, however, asked her for
beer and she gave him another 40c. She then bought herself beer,
sat down on a hide and started drinking.
It was then that one Thuso asked her to buy him some
beer and she bought 70c worth of beer which she said Thuso should
the other people in the house. At that time the accused
came to where she was seated and asked why she bought beer for the
in the house since they had been drinking and never gave him
any of their beer. P.W.7 told the accused that if that were the case
he should not share his bear with any of the people in the house.
However, the accused persisted on telling her that she should not
have bought beer for the people in the house.
Feeling that the accused was pestering her, P.W. 7 rose
and went to sit some distance away from him. The accused then lay
the hide she had been sitting. She advised the accused not to
sleep in a beer house but to go home where his meal was waiting. He
did not reply.
Shortly, thereafter a woman by the name of 'Maliqoatsi
came in. She appeared very drunk and immediately slept on the hide
the accused. The accused and Maliqoatsi spent a long time
lying next to each other on the hide and P.W.7 even thought that they
had fallen asleep. She then
4/ noticed the
noticed the accused moving. As he did so the accused
pulled the blanket which 'Maliqoatsi was wearing and covered himself
P.W.7 rebuked the accused for removing the blanket from
another person's wife leaving her exposed in a beer house. She tried
the blanket away from him but the accused pulled it tight.
She hit the accused with an open hand on the hand and snatched away
blanket which she put on the owner. She returned to where she had
The accused then stood up and went to P.W.7. He hit her
on the cheek with an open hand and was kicking her on the ribs when
came and intervened by holding him back. Accused violently
pushed away P.W.6 who fell on the fire place. When she got up P.W.6
the accused out of her house but the accused once more
violently pushed her away and in the process spilt the deceased's
When he asked him why he silt his beer, the accused told
the deceased not to utter a word for he was, in fact, after him. As
so the accused caught hold of the deceased by the collar of
the shirt and pulled him towards the door. When they came to the door
the deceased supported himself by the door frame with both his hands
and resisted from going out through the door. The accused then
his hand and struck the deceased a blow on the chest before leaving
the house. He was never again seen in the village.
P.W.7 thought the accused had struck the deceased a blow
with a fist but immediately thereafter noticed that blood was
from the deceased.
As he was struck the blow, the deceased retreated into
the house before falling to the floor and buldging. P.W.7 pleaded
men in the house to come to the assistance of the
deceased who was clearly injured. P.W.8, Leporoporo Mohokare, touched
deceased and pointed out that he was already finished.
5/ A report
A report was made to the chief who in turn sent for the
police. P.W.7 confirmed the evidence of P.W.2 that the police
came to P.W.6's house and conveyed the body of the
deceased in a police vehicle to the mortuary.
The accused gave evidence in his defence and confirmed
that during the drinking at P.W.6's place, on the evening in
question, a fight
broke out as discribed by P.W.7. According to him
it was the deceased who caught hold of him by the collar of the shirt
him towards the door. He then noticed the deceased
putting his hand into the pocket. He believed that the deceased was
a knife with which he was going to stab and injure him on
the stomach where he had previously been operated.
Although he initially told the court that because of
drunkness he did not remember stabbing the deceased who might have
by a nail at the door,the accused eventually conceded
that he did stab the deceased. That was, however, in self-defence. He
before surrendering himself to the police at T.Y. he had thrown
away the knife with which he had stabbed the deceased and it was
available for production as exhibit in this trial.
The evidence of P.W.7 that the deceased had not in any
way, provoked the accused when the latter attacked and stabbed him
commotion in the drinking house was, however, corroborated
by that of P.W.6 and P.W.8 both of whom impressed me as more reliable
witness than the accused. In my view the evidence is simply
overwhelming against the accused and there is not the slightest doubt
in my mind that he did attack and stab the deceased in the manner
described by P.W.7 corroborated by P.W.6 and 8.
That being so, the answer to the question I had earlier
posted viz. whether or not the accused is the parson who inflicted
on the deceased and consequently brought about his death
must be in the affirmative.
In stabbing the deceased on the chest with a leathal
weapon such as a knife the accused must have realised that
6/ death was
death was likely to result. He, nonetheless, acted
reckless of whether or not it did occur. That granted, it must be
in stabbing the deceased as he did, the accused had the
requisite subjective intention to kill, at least in the legal sense.
In the premises, I have no alternative but to come to
the conclusion that the accused is guilty of murder as charged. He is
My assessors agree.
B.K. MOLAI JUDGE
9th January, 1987.
For Crown : Miss Nku
Defence : Mr. Matlhare.
CRI/T/26/85 EXTENUATING CIRCUMSTANCES
I am enjoined by S.269(1) of the Criminal Procedure
and Evidence Act, 1981 to state whether or not extenuating
circumstances exist in this case.
There is ample evidence that the accused stabbed and
killed the deceased in a beer house where he had been drinking a
concoction commonly known as pineapple beer. To my mind
when he thus stabbed and killed the deceased the accused was under
of liquor and, therefore, intoxicated.
It is a well known fact that intoxication affects the
mind of a man so that he does the things that he will not do when
must be taken into account in deciding the existence of
factors that tend to reduce the moral blameworthiness of the
That being so, I have no alternative but to come to the
conclusion that the answer to the question whether or not extenuating
exist in this case must be in the affirmative.
Consequently the proper verdict is that the accused is guilty of
murder with extenuating
My assessors agree. Sentence: 9 years
B.K. MOLAI" JUDGE.
12th January, 1987.
For Crown : Miss Nku For Defence: Mr.Matlhare.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law