IN THE HIGH COURT OF LESOTHO
In the Matter of :
v LETSIELO FOROMANE
Delivered by the Hon. Mr. Justice B.K. Molai on the
26th day of June, 1989.
The accused has pleaded not guilty to a charge of murder
on the following allegations:
"upon or about the 21st day of November, 1987and
at or near Mariamaneng in the districtof Thaba-tseka, the said
accused did unlawfully and intentionally kill
It is significant to mention that at the. commencement
of this trial Mr. Moorosi, who represents the accused, informed the
the defence admitted all the depositions made at the
Preparatory Examination proceedings. Mr. Sakoane, counsel for the
the admissions made by the defence counsel. In terms
of the provisions of S. 273 of the Criminal Procedure and Evidence
Act, 1981 their depositions became evidence and it was, therefore
unnecessary to call all the deponents as witnesses in this
the consent of both counsels the post-mortem examination report was
handed in from the bar as exhibit "A".
2/ In as far ........
In as far as it is relevant the evidence of D/Tpr Nteta
was that on 23rd November, 1937 he received a certain report
he proceeded to Linakeng clinic where he found the
dead body of the deceased, Phafomane Tlaka. On examining the body for
the police officer found a single stab wound on the left
side of the chest. The accused person was handed over to him and
had given him an explanation the police officer cautioned
and arrested him. He later charged him as aforementioned.
The body of the deceased was transported to the mortuary
at Mokhotlong hospital. It sustained no additional injuries whilst it
being conveyed from the clinic to the mortuary.
According to the post-mortem examination report (Exh
"A") Sam Tlaka identified the body of the deceased before
officer who performed the autopsy at the mortuary of
Mokhotlong hospital on 24th November, 1987. The examination revealed
stab wound on the left side of the chest. The wound had
penetrated through the left upper lobe of the lungs and the cardial
On these findings the medical officer-formed the opinion that an
instrument such as a knife could have been used to inflict the injury
on the deceased and death was due to the stab wound into the cardial
I can think of no good reasons why the opinion of the
medical officer that the deceased died as a result of the stab wound
cardiac sac should be doubted in the circumstances of
this case. The salient question is, however whether or not the
is the person who stabbed the deceased and, therefore,
brought about his death.
3/ The evidence
The evidence of Olae Tlaka and Nokaene Foromane was that
on the evening of the day in question they were with the deceased's
Nothishene Tlaka, and the deceased himself in the latter's
house when they heard dogs barking and someone beating them up
the house. The deceased went out of the house to check what
was happening. Shortly thereafter he (deceased) returned into the
followed by the accused who appeared to be under the influence
Inside the house the accused took a seat on a place
commonly known as "mohoaoloana". Then the deceased who was
a stool next to the door asked him why he was beating up
his dogs. After the accused had explained that the dogs were bitting
the deceased told him to leave the house as he was tired and
wanted to sleep.
The accused then stood up, went to the deceased, who was
still seated on his stool next to the door, and stabbed him with a
on the chest before walking out of the house. According to his
evidence Olae Tlaka tried to assist the deceased to his bedding which
has already been prepared for him on the floor but the latter
colapsed and died.
The evidence of Olae and Nokaene is in all material
respect corroborated by that of the deceased's wife Nothishene
testified that when she saw her husband falling down as a
result of the stab inflicted upon him by the accused she screamed out
the house and fainted. The next thing she found herself back in
her house which was crowded with many people. Her husband was lying
dead on his bedding.
4/ Sidwell .....
Sidwell Mododa testified that on the evening in question
he was already in bed in his house when he heard dogs barking.
he heard women screaming from the direction of the
deceased's house. He got up and rushed to the scene. On arrival
the deceased lying dead in his house. He had a gaping
wound above the left breast. On the following day the accused was
in connection with the death of the deceased.
In his evidence Mpanana Mokoaqa testified that one
morning he learned of the death of the deceased. Shortly thereafter
the accused passing next to his house. He called the
accused into the house and asked him where he was going to. In reply
explained that he had been sent to collect some wheat
from the home of one Mochokoloane. He asked the accused how he could
on an errant When he (witness) had learned that he (accused)
had killed a person. When the witness suggested to take him to the
where it was alleged he had killed a person, the accused went
out of the house and ran away.
Mpanana then ordered Mohlakotha Mokoaqa and Johannes
Mokoaqa,who has since passed away,to get on horses and chase after
This is confirmed by Mohlakotha who testified that he
and the late Johannes rode after, and caught hold of the accused.
him back to Mpanana's place from where he was escorted to
the house of the deceased who was the chief/headman in the village.
to the evidence of Sidqell,Mpanana and Mohlakotha on
arrival at the chief's place the accused handed over
5/ his stick
a brown okapi knife.
It may be mentioned that in his evidence Tpr Nteta
testified that at the time the accused was handed to him at the
clinic the stick
and the okapi knife were also handed over to him. He
took possession of and later handed them in as exhibits and part of
at the preparatory examination proceedings.
In his defence, the accused gave evidence on oath and
told the court that at about 9 a.m. on the day in question which was
he, the deceased who was in fact his relative, and many
other people started drinking beer at the home of a certain woman in
village. They were a group of 20 people and shared
altogether about 10 or so large scales of beer. According to him, at
about 5 p.m.
on that day, the accused returned home only to find his
wife and mother not in. He decided to go and search for them.in the
In the course of the search the accused came to the home
of one Mokoebi where he found only the wives of his two elder
drinking beer. When he asked then why they were there
at that late hour of the day his sisters-in-law argued that he was
them. He got a twig with which he whipped the two women who
then ran away.
The accused returned home and found only his mother in.
His wife was still not in. One of his elder brothers fought him for
whipped his wife. Thereafter he decided to go and report the
absence of his wife to the deceased who, as it has already been
was the chief in the village and a relative of his.
6/ He conceded
He conceded that as he approached the deceased's
homestead dogs barked at him and he had to beat them away. Inside the
house he found
the deceased seated on a stool next to the door. The
deceased was in the company of his wife Nothishene Tlaka, his brother
and Nokaene Foromane, one of the two women he (accused)
had whipped at the home of Mokoebi. He further conceded that to the
question as to why he had been beating up his dogs he
replied that he was merely chasing away the dogs which were biting
According to him the accused then reported the
disappearance of his wife to the deceased who, however dismissed
him as having
brought frivolous matters before him. In the
observation of the accused the deceased did not welcome him at his
house because he
had beaten up the dogs and whipped his sisters -
in-law one of whom was Nokaene Foromane who had apparently come to
report the matter
at the chief's place.
Accused testified that he was offended by the attitude
of the deceased and so he stabbed him on the chest with the okapi
he was going out of the house. However, in reply to the
questions that were put to him by the court he ctaimed that the
had attacked and hit him a blow on the head with a stick. He
had therefore stabbed him in self-defence. As a result of the attack
on him by the deceased he sustained an open wound which he could not,
however, take to a medical doctor for treatment because he had
no money. On arrival at the Mokhotlong police station and the prison
he reported his injury but both the police and
the prison authorities
did nothing to afford him medical treatment.
7/ It will be
It will be remembered that according to the crown
witnesses' depositions, which were admitted by the accused, at the
time the accused
stabbed the deceased, the latter was just
sitting on his stool and not in any way attacking him. It was
contended in argument that once they had been accepted by
crown, the accused's admissions formed part of evidence and became
binding on the accused person who could not be allowed to
I am unable to agree with this contention which is
dangerously too wide in its implications. The depositions admitted by
person may include statements which are contradictory of
one another. As it was pointed out by the Court of Apael inBernard Sepanya vs Rex - C. of A. (CRI) No. 3 of 1977
(unreported) at p.6:
"It is, of course, quite clear that statements
which are contradictory of one another cannot both be true .....in
appellant's counsel intended to admit
........ the truth of all the evidence...
other than any statements-made thereat which were
contradictory to one another."
True enough, in the present case there is no
question or contradictory statements in the depositions initially
admitted by the accused. What happened is that after he had admitted
all the depositions made at the Preparatory Examination proceedings,
the accused went into the witness box and testified or; oath
the time he stabbed the deceased,the latter was attacking him with a
stick. He was,so to speak, withdrawing that portion
of the admissions
which stated that at the time he stabbed the deceased the latter was
sitting in his stool and not in any way attacking him.
As Hoffman pointed out at page 304 of his work South
African Law of Evidence (2nd Ed)
" There is no authority dealing with the
circumstances in which formal admissions made in Criminal proceedings
may be withdrawn.
In principle there seems no reason why this should
not be allowed at any time before verdict....."
It seems to me, therefore,where the accused, having
admitted the depositions made at the Preparatory Examination, goes
into the witness
box and, so to speak, withdraws part of the
admis-sions he has made by denying the correctness thereof he is, on
principle, entitled to do so
and the court cannot simply dismiss him
on the ground that he initially admitted all the depositions made at
the Preparatory Examination.
The court has a duty to take theaccused seriously and consider, in the contex of the evidence in
a whole, what he has said on oath so as to determine whether to
the accused's story or that of the prosecution witnesses.
Now, it is important to observe that although the
accused has testified that at the time he stabbed the deceased, the
latter was attacking
him with a stick, this is denied by Mothishene
Tleka, Olae Tlaka end Mokhaene Foromane all of whom were admittedly
present in the
house at the material time. According to Nothishene,
Olae and Nokhaene the deceased was just seated on his stool at the
accused stabbed him with a knife.
Moreover, if the accused's story that he stabbed the
deceased at the time the latter was attacking him with a stick were
he would no doubt have mentioned it in his evidence
He did not. I have no hesitation in rejecting as false
his story in this regard. Likewise I reject as untrue the accused's
that the deceased had inflicted on his had an open
wound for which the police and the prison authorities refused to
refer him for medical treatment. It is by now a well established
practice of the police and the prison authorities to refer for
medical treatment all victims of assaults who come
to their custody with injuries. I see no reason why they
would have treated the accused differently if, in deed, he had
an open wound on his head at the time he came to the police
and the prison authorities.
In my view the evidence is simply overwhilming against
the accused and the truth of the matter is that he stabbed the
deceased who was merely sitting oh his stool and not in any way
placing his life in
danger. Contrary to what he
wishes this court to believe the accused sustained no
injuries at all. That being so, self-defence cannot avail him and the
was earlier posted viz. whether or not the accused is
who stabbed the deceased and brought about his death
must, therefore, to answered in the affirmative.
Bearing in mind that he used a leathal weapon such as a
knife to stab the deceased on the chest which is a vulnerable
part of a human body I am convinced that the accused was aware that
was likely to result. He nonetheless acted reckless
wheather or not death did occur. Consequently it must be
9/ that in
that in assaulting the deceased as he did the accused
had the requisite subjective intention to kill, at least in the legal
In the result, I come to the conclusion that the accused
has committed the offence against which he stands charged and
find him guilty of murder as charged.
Both my assessors agree with this finding.
B.K. MOLAI JUDGE
26th June, 1989.
For Crown : Mr. Sakoane For Defendant : Mr.
CRI/T/73/88 EXTENUATING CIRCUMSTANCES.
Having convicted the accused of murder, the court is
enjoined by S.296 of the Criminal Procedure and Evidence Act, 1981 to
existence or otherwise of any factors tending to reduce the
moral blameworthiness of his act.
In this regard there was evidence that before he stabbed
the deceased to death the accused had spent the whole day at a beer
drinking intoxicating beverage. He must have been under the
influence of intoxication. It is common knowledge that intoxication
affects the mind of a person so that he does things he would not do
The court has also found on evidence that in assaulting
the deceased, as he did, the accused had intention to kill only in
sense i.e. there was no evidence that he had premeditated
the death of the deceased.
It is trite law that intoxication and the absence of
premeditation of the deceased's death are factors to be properly
taken into account
in determining the existence or otherwise of
factors that tend to reduce the moral blameworthiness of the '
accused's crime. Consequently
I find that extenuating circumstances
do exist in this case and a proper verdict is that the accused is
guilty of murder with extenuating
My assessrs agree. .
Sentence : Nine (9) years imprisonment.
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