IN THE HIGH COURT OF LESOTHO In the
R E X vs
JULIUS MOTLATSI KOLOBE
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 9th day of June, 1987
The accused is charged with the murder of the Montsi
Motloli on the 31st July, 1982 at or near Ongeluk's Nek in the
district of Quthing.
He pleaded not guilty.
The defence admitted the depositions of the following
witnesses at the preparatory examination: E.P. Matli who is the
took down the "confession" made by the
accused; Detective Trooper Sello whose evidence was thata he arrested
and charged him with murder. The accused explained to him
that he got rid of his service rifle by throwing it into Senqu River
he absconded to Transkei; 'Mabataung Khauoe who identified the
corpse of Montsi Motloli to the doctor who performed the post-mortem
examination and the report of the post-mortem examination was also
admitted by the defence.
The post-mortem examination report reveals that the
cause of death was gun shot wounds on various parts of the body, the
examination revealed the following:.
The lower end of the humerus and upper end of the ulra
was completely shattered.
The wound was traced medically until it entered the
right lung apex causing laceration.
From the right chest the wound was traced upwards
through the neck with an exit right temporal region thus shattering
the base of
the skull including temporal bone, parietal and occipital
bones and sphenoid as well as the brain tissue.
Wound Left Neck
Wound tunnelled inside shattering the left mandible and
the base of the skull and brain tissue probably with exit right orbit
mandible. Pieces of metal were found on the left occipital
Wound on the right hypochondrium has shattered the lower
surface of the right hepatic lobe including the stomach, duodenum and
colon and jejunum.
The lateral quadriceps lacerated but no bullet found.
The bone intact."
The first witness called by the Crown is Private Mateka
Mojapela who testified that in 1982 he was already a member of the
Defence Force. In July, 1982 his platoon was stationed
at Ongeluk's Nek which is on the border between Lesotho and the
South Africa. At that time there were many insurgents
the Republic of South Africa who crossed the border into
Lesotho and killed innocent people. As a result of the insurgency the
forces were on the alert all the time. Private Mateka told the.
Court that both the deceased and the accused were members of his
platoon under the command of Lieutenant Ntsoele assisted by Warrant
Officer Mokhele. On the 31st July, 1982 he was on sentry duty
morning to 6.00 p.m. and was relieved by the. deceased who was armed
with a "baretta" automatic rifle. After he
was relieved by
the deceased,he remained in the sentry-room for a., long time in the
company of the deceased, the accused and others.
decided to go to his dormitory. After he had arrived at his dormitory
he heard a gun. report coming from the direction
of the sentry. The
shooting came from an automatic rifle; he and the other soldiers
approached the sentry cautiously and found that
the deceased was dead
and lying on the ground only a few paces from the sentry room. His
head was covered with blood, his rifle was
still slung from his
shoulder. When a parade was formed it was discovered that the accused
Mojela Hlajoane testified that in 1982 he was in the
same platoon with the deceased and the accused. On the 31st July,
,1982 he left
the camp at about 10.00 a.m. and went to the village
where he was going to buy some- sheep. He was. accompanied by the
When they came to Sefompha's shop they found the. accused
and one Khomoeasera. Deceased greeted them and referred to them as
fellow boys" (bashaana ba heso).The accused then called
the deceased "Mankhoe"- and remarked that
he had realised that the deceased had made himself a boss in their
platoon because he thought they feared him. A fierce
quarrel ensued ...between them till he (the witness) intervened and
deceased out of the shop. They went to the camp leaving
the accused and Khomoeasera at the shop. It was very clear that the
angry and informed him that he would report the matter
to their senior officers. When they arrived at the camp he went to
Mojela further told the Court that later that evening he
saw the accused and the deceased near the storeroom. The accused was
the deceased by his jacket, but because he was some distance
from them . he did not hear what the accused was saying. As a radio
operator he was in a hurry to get into the radio room to make a call
and had no chance to go to them. He entered into the radio room
did not know what finally happened to them. Later that evening he
again met the deceased; they collected their meals and went
sentry room where the deceased was to resume duty at 6.00 p.m. They
were joined by Private Mateka, Private Fantsi and the
all set down in the sentry room and ate their meals. The accused sat
behind them and took no part in the conversation.
After about fifteen
minutes he, together with Private Fantsi and Private Mateka went to
their respective duty posts leaving the accused
and the deceased in
the sentry room. A very short time after he had entered into
the radio room he heard a gun report from an automatic rifle. He got
out and crawled towards
the sentry room from where the gun report
came. When he arrived there deceased was already dead and the accused
had vanished into
thin air. The deceased was lying on the ground
opposite the window of the sentry room. His rifle was still slung
from his shoulder.
The accused and the deceased appeared to be
moderately or slightly drunk..
Under cross-examination Private Mojela admitted that the
accused and the deceased were just about to exchange blows when he
the deceased out of the shop. He denied that at that stage the
deceased was pointing a finger at the accused and swearing at him.
The Crown handed in a statement made by the accused to a
magistrate and submitted that that statement is a confession. At the
Crown case the defence applied for the discharge of the
accused on the ground that the Crown had failed to establish a prima
facie case. It was agreed by both counsel that the case for the
Crown rested on the so-called confession, The Court ruled that
the statement was not a confession,inasmuch as the accused
intended to exculpate himself, there was a prima facie case.
In his testimony before this Court the accused repeated
almost word for word what he had said before the magistrate. He
he had a quarrel with the deceased at Sefompha's Shop but
his version of how the quarrel started differs from that of the Crown
At the shop he sat behind the door while his colleague
Khomoeasera sat directly opposite the doorway. While they were
drinking beer he noticed that Khomoeasera was looking
outside and giggling. He asked him what he was looking at.
that he was looking at "mankhoe". He (the
witness) peeped through the door and saw the deceased who was also
The deceased entered into the shop and suddenly swore at
them and asked them why they called him "mankhoe"".
says that he denied that he had referred to him as
"mankhoe". The accused was furious and refused to
accept that it was Khomoeasera who had called him by that name. At
they agreed that as members of the armed forces it was not good
conduct that they should fight or quarrel in public. They would
their dispute in the camp. After that the deceased left but he
was apparently still very angry.
The accused said that when he arrived at the camp that
evening the deceased attached him when they met near the dormitories.
fought for a long time till they were tired. He denies that at
one time he was holding the deceased by his jacket in an attempt to
strangle him. After the fight he went to the office and checked a
duty roster which showed that
he was to resume sentry duties at 6.00 p.m. He arrived
at the sentry and found the privates referred to above by the Crown
He did not participate in the conversation because none of
the witnesses or the deceased spoke to him. He decided to keep quiet
he was of the opinion that he would re-start the quarrel he
had with the deceased. After all the privates had left the sentry
to go and resume their duties at various places within the camp,
he sat on a counter in the sentry room. A short time after their
departure he heard the sound similar to that of a gun when it is
being cocked and when he looked through the doorway he-saw a person
pointing a gun at him. He dived and rushed to the door in a zigzag
line. Coming to the door he pushed it and hit that person with
closed it. He jumped back to the counter and saw a person or
something like a human being dash past the window on the side
sentry room. He shot at that person or thing with his automatic
rifle. He is unable to estimate how many bullets were discharged
his automatic rifle when he pressed the trigger.
He went out of the sentry room and turned towards the
window where he had shot that something like a human being. He saw a
lying on the ground and he again jumped to one side and shot
at that person because he thought he was waylaying him. He saw a
similar to his near that person and realised that he had shot
one of his colleagues. He took the rifle and proceeded towards the
dormitories intending to report thy matter to his colleagues. On the
way he changed his mind because he remembered that senior officers
were absent and if he had shot one of his colleagues
there would be a. confusion leading to a fight amongst
decided to go to his home. He leaned the deceased's rifle against the
wall and went away.He went to his home and reported
what he had done
to his mother before fleeing to the Republic of South Africa where he
remained for one and half years. He threw
his rifle into the Orange
River before he entered into
It is clear from the summary of the evidence I have
given above that there is no eye-witness to the shooting arid that
the Court shall
rely on what the accused has said. Briefly stated the
story of the accused is that he was defending himself because he
life was in danger when that person or thing suddenly
appeared at the doorway and pointed a gun at him. Although the
the accused is improbable, I shall assume in his favour that
it is true.. Now the question is whether objectively speaking the
reasonably thought that his life was in danger. It is trite
law that the test whether the life of the accused was in danger is
(see South African Criminal Law and Procedure, Vol. I
by Burchell and Hunt p. 278-279). However, in applying the objective
our courts have been warned to be careful to avoid the role of
armchair critics wise after the event, by putting themselves in the
position of the accused at the time of the attack.
Applying the test stated above there can be no doubt
that if it is assumed to be true that a person suddenly appeared at
and pointed a gun at him, the accused was entitled to shoot
that person there and then in self-defence. The accused did not shoot
that person there and then but averted that imminent danger to his
life by pushing the door and forcing that person out of the room.
From there the person is alleged to have proceeded to the side of the
room and the accused saw him quickly passing near the window.
at him. The crux of the matter is whether at that stage it can
objectively or reasonably be said that that person was posing
imminent danger to the accused. The answer must obviously be in the
negative. At that stage that person was not pointing any
the accused. In his own words the accused says that that person was
dashing past the window and did not aim a gun at him.
life was not in any imminent danger at that stage. His beliefs and
assessment of the
position cannot be shared by a reasonable man. He
therefore acted unlawfully.
The accused was safe in a dark room and could easily
hide himself while having a good view of all the windows and the door
which that person had to appear and shoot at him. I am of the
opinion that there was practically no imminent danger to the accused
when he shot at the deceased when he saw him dash past the window.
The third stage is when the accused came out of the
room. He saw a person lying on the ground at the exact spot where he
shot a person. He again unreasonably thought that that
person was waylaying him and started shooting at him.
Although I have come to the conclusion that the accused
unreasonably thought that his life was in danger, I must now deal
crucial question of whether the accused had mens rea
for murder. The tost whether the accused had the requisite intention
is subjective. If the accused genuinely believed that his life
danger when he shot the deceased through the window and when he found
him lying on the ground near the window, he may escape
murder on the ground that he did not intend his conduct to be
unlawful. In deciding this point the Court must take
consideration the fact that earlier that evening the deceased had
fought with the accused and that the latter genuinely
the deceased intended to kill him. He told the Court that when he
closed the door and forced that person out of the
room it crossed his
mind that it could be deceased. He was not yet at peace with the
deceased because they had not yet been confronted
with him by their
I come to the conclusion that the accused did not have
the requisite intention for murder; however the killing of the
Although the accused and his colleagues had taken some
intoxicating drinks earlier that day there is nothing to show that at
killing the accused was still heavily under the
influence of liquor. One
of the Crown witnesses observed that the accused was slightly drunk
when he arrived at the camp. That means that he was not
so drunk that
he did not know what he was doing or that what he was doing was wrong
(see section 2 of Criminal. Liability of Intoxicated
Proclamation No, 60 of 1938). The accused never said that he did not
know that what he was doing was wrong or that he did
not know what he
was doing. He related the events leading to the-shooting of the
deceased in such clarity and detail that one is
left in no doubt
about the. state of his sobriety.
The next question is whether a verdict of guilty of
culpable homicide may be competent according to the facts of this
case. It is
trite law that in cases of culpable homicide negligence
is sufficient mens rea. (See R. v. Mkize, 1951 (3) S.A. 28
(A.D.). The accused's belief that the person passing near the window
posed an imminent danger
to his life was bona fide but was not
at all reasonable and has therefore been negligent. That person was
dashing past the window and was not pointing any
gun at the accused.
A reasonable man would have thought that that person was running away
and would not have shot him.
In the result I come to the conclusion that negligence
has been proved. The accused is found guilty of culpable homicide. .
My assessor agrees.
J. L. KHEOLA JUDGE.
8th June 1987.
Three (3) years' imprisonment of which two (2) years are
suspended for three (3) years on condition that during the period of
the accused shall not be convicted of any offence
involving violence to another person for which he is sentenced to a
period of imprisonment exceecding six (6) months without
of a fine.
J.L. KHEOLA JUDGE.
9th June, 1987.
For Crown - Mr. Lenono For Defence - Mr.
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