IN THE HIGH COURT OF LESOTHO In the Appeal
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
26th day of May, 1989.
The appellant was charged before the Subordinate Court
in Mohale's Hoek with the offence of Culpable Homicide.
The deceased Lazarus Phangoa succumbed to injuries
inflicted on him by the appellant on 11th May 1987. Deceased died
while being conveyed
to the Mohale's Hoek Government Hospital after
he had sustained those injuries on the same day.
Appellant was convicted by the court below and has
appealed against conviction only.
The only eye witness Matsepang Tumane who testified
before the trial court as to the events told that court that deceased
the field where this witness was in the company of
'Malitsoanelo Tumane the accused's wife peeling beans.
P.W.1 'Matsepang Tumane heard a cracking sound and on
turning her head saw that the appellant Tsokolo was hitting the
a stick. She testified that appellant hit deceased
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The appellant did not reply when P.W.1 asked why he was
assaulting the deceased thus.
However under cross-examination P.W.1 shifted from the
version which she had portrayed in her evidence in chief.
Under cross-examination she conceded that the
assault was preceded by an exchange of words between
deceased and the appellant.
It was elicited from her that appellant in an exchange
of words with deceased asked if he the appellant should not ask
It appears that appellant had earlier disapproved of the
apparent love affair existing between his wife and the deceased. He
warned deceased never to be seen in his wife's company.
In cross-examination then a different story
emerged from that in P.W.1's examination in chief. She
testified that after hearing the words referred to above she had seen
approaching the appellant and that deceased had adopted a
crouching position when doing so. She mentioned that appellant was
a stick at the time and she and appellant's wife ran away and
did not see what happened save that when she ran away deceased had
rushed at the appellant.
The magistrate described P.W.1 as a liar and an
Her version to the extent that it departs from her
evidence in chief supports that of the appellant who testified and
by his wife that, deceased rushed at him when
appellant asked him why he was with his wife despite the previous
When deceased rushed at appellant it is said he was in
an angry mood and had dipped his hand in his pocket such that
deceased might be
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having a knife with which to stab him.
There is no evidence to substantiate presence of the
Appellant then put thus in fear for his safety hit
deceased with the stick first on the forehead. Deceased rushed at him
appellant hit him on the jaw whereupon deceased fell down,
got up on his knees and sat down. Appellant testified that he did not
hit deceased when the latter was on the ground.
Indeed an accused's story need not be true as long as it
is possibly reasonably true. In other words an accused need not
the court of the veracity of his tale.
I have observed that the medical evidence has not been
made part of the record in these proceedings.
I have no option but to accept appellant's story in the
It thus becomes difficult to take the view that when he
acted as he says he did the appellant ought as a reasonable man in
to have foreseen that death would ensue.
Consequently it seems to me that appellant has used more force in his
fear that deceased was bent on injuring him with a knife
than was justified by the circumstances regard being had to the fact
deceased was fifty years old while appellant was only twenty
five. Mr. Mda in argument pointed out with his tongue in the
cheek that the crown did not lead evidence to exclude the possibility
suffered further injury while being conveyed to the
hospital. My reaction to this is that the Crown is not obliged to
avenue of escape that an accused may avail himself of
from criminal liability.
Moreover if the crown case was not so bedevilled by the
inconsistency of its star witness, the learned magistrate's findings
hold on the grounds that
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" if the appellate court is merely left
in doubt as to the correctness of the conclusion, then
it will uphold it."
See Rex vs. Dhlumayo & Another 1948(2) SA.
677 et seq. But section 238 of our C.P. & E. here has
(1) " any Court may convict on the
single evidence of any competent and. credible witness."
The only star witness was discredited by the learned
magistrate. The record shows he was right to discredit her.
It becomes difficult to decide how far to go along with
P.W.1's evidence in an endeavour to determine where the truth ends
lies begin in view of her complete about face once she was
under cross-examination. See CRI/T/80/91 Rex vs Moroka Mapefane
(unreported). See also Rex vs Sabilone Nalana & 25
Others CRI/T/51/69 (unreported) by Jacobs C.J. as he then was.
Appellant is accordingly acquitted of Culpable Homicide
and convicted of assault with intent to do grievous bodily harm.
there is substantial success in this appeal the sentence
imposed in the Court below was nevertheless so light that I am
to disturb it.
JUDGE. 26th May, 1989.
For Appellant : Mr. Z. Mda For Crown : Mr.
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