IN THE HIGH COURT OF LESOTHO In the matter
NARO LEFASO Held at Butha-Buthe
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
26th day of May. 1989.
Accused pleaded not guilty to two counts; first of arson
and next of murder.
It is alleged in the indictment that he set fire to
'Mampooa Paepae's house with intent to injure her in her property at
the district of Butha-Buthe, It is also alleged that on
the same day i.e. 28th June 1988 accused killed 'Mampooa Paepae
The facts of this case fall within a very narrow
compass. It was only in addresses that the crown approximated
persuading the court
that accused is the one who burnt the deceased's
house on the basis of circumstantial evidence that he was found there
after the alarm was raised and was beating the
deceased. So it was submitted the two charges are part of a
The evidence led arouses a very strong suspicion
- 2 -
that in order to facilitate deceased's expulsion from
her house accused set it on fire. There is no direct evidence showing
indeed did so. Whatever circumstantial evidence may link
accused with arson does not exclude the possibility that deceased
might have accidentally caused the fire that made her flee
from the house. Nor is the possibility excluded that someone other
the accused set fire to this house.
There is however a strong suspicion, founded on the
presence of burnt match sticks found outside that the fire was set
thus excluding the possibility that deceased caused the
burning of the house from inside. But P.W.1's evidence that he
accused with having caused the fire was not gainsaid.
However the crown did not pursue this with any purposeful enthusiasm
was to be expected in the circumstances. It was not put to the
accused that he burnt the house nor was it drawn to his attention
that he did not assert his innocence in the face of evidence
implicating him in the burning of that house.
Needless to say no evidence was led to show what the
structure that got burnt was made of.
I therefore find that the requirements of circumstantial
evidence have not been satisfied. Accordingly accused is given
doubt and acquitted on count 1.
The defence admitted the evidence of P.W.3 Home Mpooa at
preparatory examination in the court below. The thrust of his
that he is a headman. Accused and deceased are his
In response to an alarm raised he went to
deceased's house which was on fire. He found the
deceased already dead. Accused was not at the scene
when P.W.3 got there. P.W.3 looked for him but failed
- 3 -
to find him. He reported the matter to the police and
proceeded with them to accused's home where the police obtained a
which is now before Court.
He admitted evidence of 'Matsele Matletla merely shows
that she helped put out the flames from the burning house.
P.W.5 'Mamako Motsoanyane's evidence was also admitted.
Her evidence shows that she felt deceased's forehead and concluded
was dead. She also testified that she knew "Ex.1"
the knob-kerrie to belong to the accused.
P.W.7 'Makhojane Paepae's admitted evidence is. that she
is deceased's granddaughter who helped put the fire out.
P.W.8 'Malikeleko Phello's admitted evidence is that in
the early morning of 28-6-88 some people came looking for accused at
"but he came very early in the morning. He went away.
During the day police came". Accused disappeared until when this
witness saw him on the day when the P.E. proceedings were conducted.
P.M.8 is the one who handed the knob-kerrie to the police.
P.W.9 Mosiuoa Motholatseleng's admitted evidence is that
he identified deceased's body before the postmortem was
P.W.10 Trooper Khaboliso's admitted evidence is that he
is a member of the Royal Lesotho Mounted Police stationed at
1st July 1988 he was on public transport coming to
town when he saw accused go on board the vehicle in question when it
Ha Marakabei. P.W.9 arrested the accused when they reached
Butha-Buthe town. Accused told him he had come to surrender himself.
P.W.9 then charged accused with murder. P.W.11 No. 5618 Detective
Trooper Saba's admitted evidence shows that he went on inspection
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the house which had burnt.
The house had been burnt partly at the back. In front
of the house he saw blood on the ground about a meter away from the
He observed that deceased had bled from mouth and nose. She
had a depression on the head. He conveyed the body for further
by a doctor.
P.W.12 Doctor Krick's admitted evidence is that he was
on duty on 1-7-88 at his station in Butha-Buthe. He performed a
on the deceased. Deceased had died from the extensive
fracture of her left head. The bones had been pressed down on the
itself was smashed. There had been bleeding into the
brain. He formed the opinion that the injury could have been caused
by a heavy
instrument. His report was handed in marked "A".
P.W.1 'Mota Paepae testified that deceased was his
mother. He said he knew the accused and that they live in the same
P.W.1 said on 28-6-88 he was at home. In the evening of
that day while he was in bed he and his wife heard his mother the
"My son Caswell the house is burning".
The deceased was outside her own house which is in the
same yard as P.W.1's. The houses are facing each other and are about
Thereupon P.W.1 woke up together with his wife and
headed for deceased's house.
There was moonlight. P.W.2 'Mantsoaki Paepae who is
P.W.1's wife corroborated this evidence and said she was able to see
was accused who was seen molesting the deceased three times
with a knob-kerrie "Ex.1" because of the light from the
fire and the fact that there was moonlight also.
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P.W.2 testified that accused was wearing a dun blanket
when she saw him belabouring the deceased
even when she was already on the ground.
The deceased was bleeding from the nose and mouth when
P.W.1 saw her.
P.W.1 identified and pointed out a knob-kerrie which he
said he saw accused belabour the deceased with.
It is a bamboo-coloured stick with a crude and heavy
Under cross-examination P.W.1 was referred to a passage
recorded in his evidence at Preparatory Examination showing that in
to whoever he said was belabouring his mother when first
was seen by him, he did not say that it was the accused Naro that he
Whatever the merit this question may carry it seems to me not
to advance accused's case in any manner because P.W.1 further
that when he appeared accused stopped belabouring the
deceased when P.W.1 took a reed and threatened to stab accused with
Even as he uttered the threat to stab accused with the reed
P.W.1 told him that he was aware it was accused who had burnt
P.W.1 said it was at this stage that accused turned tail
and ran away; and disappeared from the scene till when later seen by
witness at P.E. in the Court below.
However it was put to P.W.1 that at P.E. he is recorded
as having said
"the man ran away when I came near but he came back
and I said I would stab him. It was then that I identified him as
P.W.1 conceded that those were his words.
This witness clarified the position by saying that
accused ran away first when seen by P.W.1, then turned
back towards him but ran away for good when P.W.1 pulled
a reed and threatened accused with it. This explanation does not
me to disturb the substance of P.W.1's evidence.
At this time P.W.1 was with his wife P.W.2 and nobody
else had come to the scene yet.
It was put to P.W.1 that he made an assumption when he
did not see accused among people who had responded to the alarm
it was on account of accused's guilty conscience and
P.W.1 agreed that this was the case. He was emphatic that the man he
was the accused whom he knows very well and with whom he has
had normal relationships.
P.W.2 'Mantsoaki Paepae corroborated P.W.1's evidence in
all material respects and testified that she saw accused hit deceased
times with a knob-kerrie.
She further testified that 'Mamoliehi who was jointly
charged with the accused before the matter came before this Court was
Under cross-examination P.W.2 said when she and her
husband heard the alarm raised by deceased that her house was burning
proceeded to deceased's house. She testified
that accused on seeing them approach ran away but came back still
1" the knobkerrie which he was brandishing
but did not hit anybody with it at that stage. However when P.W.1
took a reed and
challeged accused to a fight accused ran away.
Asked why she never said at P.E. that deceased was hit
three times she said the question was not put to her in that manner
confined herself to-saying accused assaulted the deceased
within her view.
She testified that she did not see 'Mamoliehi. She also
said accused was wearing a dun blanket and
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went further to say he also had black trousers and a
tattered cap on.
She was adamant that Ex."1" was the weapon she
saw accused hitting the deceased with. She also testified that
was bleeding from the mouth and nose. She was not able to
see if the knob-kerrie had blood on it for it remained in the
of the owner.
She admitted that some people whom she knows live across
the Caledon at a farm in South Africa and that sometimes they just
the river to come to Lesotho. However she did not know one
P.W.6 'Mathabang Khoena said she is accused's sister.
Accused came to her on 30-6- 88 at 7 p.m. before he left for
the following day. Accused told her that people were
saying that he had killed the old 'Mampooa. Consequently accused
said he was
going to report himself to the police. She also testified
that she knew that 'Mamoliehi was in love with the accused. She
denied any knowledge of the knobkerrie before court.
Under cross-examination she said she knew Phamola though
she did not know where he lived. She did not know the name of the
Phamola used to live. Phamola was not a relative of the
accused. Their relationships were however normal.
On that day, that is, 30-6-88 accused did not say where
he came from nor did he say it when he left. However she said accused
having killed the deceased. P.W.6 knew of no conflict that
existed between accused and deceased prior to the incident and felt
would have known if there were any clashes involving accused
because he usually though not always confides in her.
Accused in a sworn statement before this Court said he
lives at Benteke. He was coming home from the Orange Free State when
that deceased had died. He
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had gone to the Free State to fetch his money from
Phamola. He said he had gone to the Free State late on Tuesday. He
said he had
gone late there because he was running away from the
Republic of South African police. He spent the night on the farm in
State at Phamola's place but did not get the money.
In the morning he was told to go away and come later for
all the occupants of Phamola's house would be going to work and that
bosses would not like it if accused remained there in their
Then accused went home early in the morning.
Accused denied the admitted evidence of P.W.8
'Malikeleko Pheello that he came early in the morning to her place.
P.W.8 had indicated
that some people had come to her place looking
for accused on the night of 28-6-88. Accused's denial of this
is centred on his own explanation that he only
came to P.W.8's place after sunrise. He conceded though that he came
there in the
He went further to state that he went back to the Free
State during the day. Asked how he could brave going into the Free
the day in the light of the fact that he had earlier
said he only moved in the Free State at night because of his fear
that the R.S.A.
police would arrest him he said the mountain ridges
where he moved about at day time ensured his safety from the police
him an advantage of seeing them before they could come and
He spent this further night in the Free State i.e.
Accused denied that he killed the deceased; and branded
as lies evidence saying he did so or assaulted her at all.
For all it is worth P.W.1's evidence that he drew
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to accused's attention the fact that he had burnt
deceased's house was not denied during cross-examination of that
witness nor in
accused's evidence in-chief.
Accused stated that he used to be in love with
'Mamoliehi but their love affair terminated long before the events
giving rise to this
When it was pointed out to him that his own sister
testified to the events immediately surrounding the incident, and in
she showed that he and 'Mamoliehi were lovers even
then,accused said he was not aware that his sister was referring to
the time immediately
surrounding and particularly pertaining to the
He acknowledged the knobkerrie as his. He had left it at
home when he went to the Free State and only learnt later that police
He said he came back from the Free State on a Thursday
and met his sister to whom she reported that it was being alleged he
the deceased; hence his decision to go to Butha-Buthe police
station the same day.
Along the way at Ha Marakabei he met with a policeman
in a vehicle bound for Butha -Buthe. He told the policeman that he
going to Butha-Buthe. Accused denied the admitted evidence of
P.W.10 that this policeman arrested him. He denied that he told
the policeman that he was going to surrender himself. He said he
told the policeman that he was going to report himself.
Accused does not remember the day he left for the Free
State but can only remember that it was towards the end of the fifth
He stated that he did not know the dates of the months.
Accused said though he had a passport he did not use it to cross to
in question for that place was very near.
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Accused said he had not quarrelled with P.W.1 and did
not know why he could implicate him falsely. He did not know why
P.W.1 in implicating him falsely either.
He conceded that he has some dun or donkey blankets. He
said he didn't have a tattered cap.
Mr. Molapo in argument submitted that indeed
accused had told him about the fact that he had gone to the Republic
of South Africa during the
events which constitute the subject matter
of this case. He submitted further that accused might not have
understood the question
why the version was not put to the Crown
witnesses. He further submitted that it would seem putting such a
question would not be
necessary in view of the fact that P.W.2
conceded that she concluded it was accused who had committed the
offence because he was
not among villagers who came to help
extinguish the fire.
But accused's attitude will become clearer as we go
further down in this judgment.
Accused conceded that it was only when he was giving
evidence on his behalf that the court for the first time learnt that
he had gone
to the Free State. In other words he never disclosed his
case during the time when the version for the crown was being heard.
SeePhaloane vs Rex 1981(2) LL.R 246 where Maisels P. said
"It is generally accepted that the function of
counsel is to put the defence case to the Crown witnesses, not
only to avoid
the suspicion that, the defence is fabricating, but to
provide the witnesses with the opportunity of denying or confirming
for the accused ...."
Accused was questioned
"If you are aware of this particular and important
aspect of your defence, why is it that witnesses who say that they
on that day were not challenged that you were not there on
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but rather were in the Free State - ? There was no one
who knew where I was.
You mean your lawyer didn't even know that story that
you were going to give when you are in the box - ?
Not so - ?
He didn't know".
In R vs.Hlongwane 1959(3) SA. 367 at 370-1 it is
"The legal position with regard to an alibi is that
there is no onus on an accused to establish it, and if it might
be true he must
be acquitted But it is important to point
out that in applying this test, the alibi does not have
to be considered in isolation.
The correct approach is to consider
the alibi in the light of the totality of the evidence
in the case, and the Court's impressions of the witnesses."
There is no escaping the view that accused when
confronted with cast-iron evidence of eye-witnesses who know him and
could not be
mistaken as to his identity and who testified that they
saw him effect the assault decided to embark on fabricating that he
the time in the Free State. There is authority for the view
that an accused who gives false evidence does thereby provide a basis
which has the effect of strengthening an inference of guilt. SeeBroadhurst vs Rex 1964 A.C. 441 at 457. The tenor of
this authority does not of course relieve the Grown of the onus
resting on it to prove its case
beyond a reasonable doubt. At 409 of
3rd Edition of South African Law of Evidence by
Hoffmann and Zeffertt we are told
" no onus rests on the accused to convince
the Court of the truth of any explanation which
he gives. If he gives an explanation, even
if that explanation is improbable, the court
is not entitled to convict unless it is satisfied,
not only that the explanation is improbable,
but that beyond reasonable doubt it is false.
If there is any reasonable possibility of his
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explanation being true, then he is entitled to his
But in R vs Mlambo 1957(4) SA. at 738 et seqMalan J.A. said
"...... there is no obligation upon the crown to
close every avenue of escape which may be said to be
open to the accused. It is sufficient for the Crown to produce
evidence by which
such a high degree of probability is raised that
the ordinary reasonable man, after mature consideration comes to the
the case has been proved against the accused. Mr. Molapo
urged the court to find that there are doubts in this case which
should redound to accused's benefit. He pointed out that it is
that if accused was the one who committed the offence he
would run away when he had not been identified only to come back into
glare of the raging flames so as to be identified. But the
evidence that was elicited in this connection did not show that in
away he fell out of the view of these witnesses who said they
He further submitted that it would be doubtful that a
man who is said to have used the weapon "Ex.1" could leave
it at his
house and make no attempt to dispose of it, and further
that there was no drop of blood on it yet it is shown in evidence
First it is not unusual for people who commit crimes to
do strange things. Next absence of blood from a blunt instrument
as proof that it was not used. Moreover blood seen was
issuing from mouth" and nose. Blows were effected on the head
on those organs.
At 738 of Mlambo above Malan J.A. said
"An accused's claim to the benefit of a doubt
must not be derived from speculation
but must rest upon a reasonable and solid foundation
created either by positive evidence
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or gathered from reasonable inferences which are not in
conflict with, or outweighed by the proved facts of the case."
See also Miller vs Minister of Pensions (1947) 2
ALL E.R. at 373 where Lord Denning in regard to the same issue
expressed himself as follows :- i.e. (Criminal standard)
"It need not reach certainty, but it must carry a
high degree of probability. Proof beyond a reasonable doubt does not
proof beyond a shadow of doubt. The law would fail to protect
the community if it admitted fanciful possibilities to deflect the
course of justice; If the evidence is so great against a man as to
leave only a remote possibility in his favour, which can be dismissed
with the sentence (of course it's possible but not in the least
probable), the case is proved beyond a reasonable doubt, but nothing
short of that will suffice,"
The instant case has not shown what the motive for
killing was. But reference to Mlambo above at 737 shows that
"Proof of motive for committing a crime is always
highly desirable, more especially where the question of intention is
Failure to furnish absolutely convincing proof thereof,
however, does not present an insurmountable obstacle because even if
is held not to be established there remains the fact that an
assault of so grievous a nature was inflicted upon the deceased that
death resulted either immediately or in the course of the same night.
assault .. committed upon a person
causes death either instanteneously or within a very
short time thereafter and no explanation is given of the nature of
by the person within whose knowledge it solely lies, a
court will be fully justified in drawing the inference that it was of
aggravated nature that the assailant knew or ought to have known
that death might result."
Mr. Mokhobo for the crown asked the court in
acknowledging the existence of the intention to commit the crime
charged to rely on the
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nature of the weapon used namely the crudeknobkerrie,
the part of the body where it was applied,namely
the head, a vital organ.
The resultant dent which was observedafter the use
of the weapon.
The apparent brutal force that must havebeen used
to accompany the application ofthe weapon; and
The fact that accused immediately disappearedfor a
long time before he could surrenderhimself to the police who
I may add to the above list the fact that deceased was a
defenceless old lady who to all appearances was taken unawares by the
assault on her.
Account being taken of the fact that the distance
between P.W.1's house and deceased's house is short and that in
response to the
alarm raised by deceased P.W.1 and P.W.2 rushed to
the scene it is apparent that the wielding of the weapon was brisk,
I find nothing in the Crown evidence especially that
given by oral witnesses to serve as a basis for doubting their
Much in the same manner as Rooney J. said in CR.
T. No. 112/88 The King vs. James Masilele (unreported) at 12
lines 7 to 8.
"The tenuous alibi raised by the accused comes to
nothing. It is for the crown to show that the alibi is not well
those observations are dittoed in the instant case.
This - i.e. duty to disprove the alibi - I think the
crown has managed to do as evidence has amply borne it out in this
I have been informed from the bar that a witness who
would testify in support of accused's alibi is serving term in South
The defence proposed to . abandon attempts at summoning him
before this Court.
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Even assuming he would testify to accused's presence in
the Republic at the time of the events it is scarcely possible that
would prevail against that of the Crown witnesses who
said the accused was seen belabouring deceased at the relevant times.
person cannot be at two different places at once.
Moreover in his own defence accused never put his
version of an alibi to crown witnesses who say they saw him in order
to enable them
admit or deny his version or even to cast a doubt as
to their untramelled perception of accused and his identity.
I therefore find that the alibi cannot be true and that
accused's attempt at raising it albeit so late in the day is nothing
but something akin to clutching at the straw of a drowning man.
The accused's defence is rejected as false beyond all doubt.
On the basis of evidence led and tested before this
Court I accordingly find accused guilty of the murder of the deceased
My assessors agree.
JUDGE. 26th May, 1989.
- 16 -ON EXTENUATING CIRCUMSTANCES
The purpose of an inquiry into the existence or
otherwise of extenuating circumstance is to afford a person convicted
of a capital
offence an opportunity of escaping the ultimate penalty
where such circumstances are shown to exist. Attention is
on the moral blameworthiness of the convicted person and the
test is subjective. In other words the question asked is whether
though the accused has been convicted of the murder the court
should find' circumstances which subjectively speaking reduce
moral blameworthiness with regard to the offence committed.
Conversely acceptance of diminished moral blameworthiness reduces
full rigour of the sentence to some extent.
In the address intended for persuading the court that
such circumstances do in fact exist the court was told that accused
a background and social milieu of ordinary people who live
in the villages where they are apt to project the type of mentality
A woman 'Mamoliehi whose name appeared time and again in
this case is said to have been in love with the accused.
She is also said to be the deceased's close relative.
The court was asked to take into account that in the absence of this
husband the deceased had a high degree of care over her.
Accused through his counsel maintains that 'Mamoliehi
has caused the break down of accused's own marriage in the sense that
she lived virtually as man and wife.
'Mamoliehi played on accused's feelings to the extent
that she urged him to get rid of the deceased who seemed to be
their illicit love affair.
It was projected as accused's weakness or human
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frailty that he failed to appreciate that deceased was
entitled to live also; and thus fell to the temptation of putting her
at the instigation of his lover 'Mamoliehi.x
Mr. Mokhobo indicated that accused is not
entitled to the claim that he committed the act in order to live
happily with 'Mamoliehi after clearing
the deceased out of the way
because accused testified that the love affair had long stopped
before the commission of this crime.
But even if the affair still prevailed around that time,
does it reduce his moral blame worthiness? That is the question.
Regard being had to the short distance between
deceased's house and that of P.W.1 and P.W.2, and to the fact that
P.W.1 and P.W.2
immediately set out for the deceased's house on
hearing deceased's alarm it would appear that the assault was
effected quickly and
brutally with the aim of causing death, and
death occurred within minutes if not seconds.
The particularly brutal, cowardly and wicked manner of
the killing is in my view a factor to be taken into account in
the matter regarding the existence or otherwise of
At 738 Mlambo is authority for the view expressed
as follows :-
"Moreover, if an accused deliberately takes the
risk of giving false evidence in the hope of being convicted of a
crime or even, perchance, escaping conviction altogether
and his evidence is declared to be false and irreconcilable with the
facts a court will, in suitable cases, be fully justified in
rejecting an argument that, notwithstanding that the accused did not
avail himself of the opportunity to mitigate the gravity of the
offence, he should nevertheless receive the same benefits as if he
had done so.
The logical result of the contrary view
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would be to place a premium upon false testimony and to
afford protection to the cunning and ingenious criminal who could
commit murders and, by destroying the body, defy
detection of the cause of death and thus escape condign punishment.
The danger of
serious miscarriages of justice would be very real and
if this line of reasoning had succeeded in the past many notorious
would have escaped the gallows."
The summary of the proposition advanced before me is
that deceased had to die so that she could not interfere in the love
I do not accept this proposition on the grounds that the law
cannot put a premium on the fact that failing deceased's death the
illicit love affair would not thrive freely. In this regard it
cannot sincerely be said accused properly and fairly reflects the
attitudes of the village or of the social milieu of which he is a
product. Even in the villagers' view free propagation of an illicit
love affair cannot mitigate the death of, or cost the life of the
deceased. Rather than that such an attitude should serve as reducing
the moral blameworthiness it would aggravate it.
Accused took advantage of the blackguardly trick - no
matter who initiated it - played on the unsuspecting wretched
who had to flee from her burning house. Instead of
obtaining help for which she was shouting she was mercilessly
assaulted by the
I taxed my mind to find, with the assistance of my
assessors whether, even if the existence of the love affair between
'Mamoliehi could be said to have reduced his moral
blameworthiness there could be other factors which would lead to the
but in vain. Hence I have come to the conclusion that the
existence of that love affair fails to ground any extenuating
whatsoever. A defenceless old lady who posed no danger
to the accused lost her life while exercising her legitimate function
parent. In such circumstances the law allows only one
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sentence which is mandatory.
Will the accused say why death sentence should not be
imposed - ?
Accused : "I wish to be given prison term to
Sentence: The sentence of the Court is that you
be removed from the place where you are standing and taken to the
place of custody where on
an appointed day, you will be hanged by the
neck until you are dead. May God have mercy on your soul.
JUDGE. 26th May, 1989.
For Crown : Mr. Mokhobo For Defence : Mr. Molapo.
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