IN THE HIGH COURT OF LESOTHO In the matter
MORENENG MATHABA Held at Butha-Buthe
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
10th day of May, 1989.
Accused pleaded not guilty to the intentional killing of
Joshuoa Setipe Mathaba who died at Ha Khalanyane in the Mokhotlong
on 23rd December 1986.
Medical evidence handed in in the form of a post mortem
report marked "A" shows that the cause of death was an open
The body was badly decomposed and infected with magots
when it was examined seven days after the death. There was a deep
of the scalp and the skull was fractured with the result
that the brain substance was exposed.
The Preparatory depositions of P.W.4 and P.W.5 Moupo
Setipa and Trooper Thebe respectively were admitted on behalf of the
and accepted by the Crown. P.W.4's evidence is to the effect
that he repaired to the scene on the day in question and on examining
the body he saw two wounds on the head and
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He later accompanied the body to the mortuary and was
the one who identified the body to the doctor before the post mortem
P.W.5's testimony is to the effect that Lisema Mathaba
came to his office one day in December 1986 in the company of accused
holding a stick. A report was made by Lisema concerning
accused and the stick. Lisema later handed over to this witness the
and the accused. The stick was handed in at P.E. and marked
Ex."1". The same number was retained in this Court by
of the admission relating to it by the defence.
The evidence of P.W.7 at P.E. Lisema Mathaba was not led
because of the absence of this witness. No. 2828 Detective Trooper
gave sworn evidence showing that Lisema had been served with
the subpoena requiring his attendance to this Court. The court
been satisfied that no good reason had been forwarded for
Lisema's absence issued a bench warrant for his apprehension.
In order to settle once and for all a dispute that arose
concerning certain things alleged to have been said by P.W.1 Masetipa
the deceased's wife, in submissions by the crown concerning
suspected stray cattle and the time of her husband's arrival at home,
I propose to render one and half pages of her evidence in chief
verbatim as appears in my manuscript as follows:-
I live at Taung in Mokhotlong district. I know the
accused. He is my uncle. He lives at Mokhotlong.
I was at home on 22-12-86. I was with my father and
mother-in-law. I am married. My husband has since died.
My husband was in the village not in our house.
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During the day I don't know where he had gone.
He returned in the evening before sun set. He did not
say where he came from.
He slept in the same room with me.
It was at about early in the morning when I heard a
knock at the door. It was before sun rise.
That person knocked first time and I remained quiet. The
person knocked for the second time and called my name. It was when
my name that I recognised her by her voice when she
I heard that to be 'Malebitso's voice. I prepared to
open for her, but did not do so because she opened it herself. She
and sat down near the bed. I was still in bed when she came
I expected her to say what she had come for but
she did not say anything.
Then I heard a sound as if something was being hit. I
was sleeping with my husband not facing each other.
It will be clear from the above therefore that Crown
counsel relied in making his submissions on portions of the P.E.
of P.W.1's evidence which was not led in this Court.
However the cross-examination of this witness revealed
that at P.E. she had said her husband arrived very late at night and
that the true position is that in fact he came very late
at night and not before sunset as she had perhaps wished the Court to
that her husband since arriving before sunset never ventured
out throughout that night till when rudely aroused from his sleep by
accused's wife's and accused's intrusion.
It is in this regard that there is some substance in
defence's criticism of this witness as tending to
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hide certain things. What appears to have been sought to
hide would most likely be P.W.1's husband's alleged deviation from
of matrimonial virtue.
P.W.1 testified that immediately after accused's wife
came in and sat down and remained silent she heard the sound referred
On hearing it she turned her head to see what was
happening. Then she saw a man standing next to the bed with a raised
stick in his
hand. She recognised him as the accused Moreneng. She
inquired "Moreneng what are you doing" but accused
Even as she rose to see what was happening her husband
happened to be rising at the same time as she did with the result
that he knocked
against her and she instantly got pushed over the
edge of the bed and fell to the floor between the bed-stead and the
The fall was from a considerable height of some one and
half metres because tins had been used to give added height to the
When she recovered from the fall she found that there
was no longer anybody in the rondavel.
However the credible evidence of P.W.2 'Majoshuoa the
deceased's mother shows that accused's wife had remained in there for
her later when deceased was led into the rondavel to be
seated on a chair and later to be laid down on the mattress placed on
floor where he died shortly afterwards.
I attach much importance to the testimony of P.W.1 that
while she might understandably be tempted to lie in order to protect
moral rectitude she did not implicate the accused
falsely when she said she saw him in her house with a raised stick.
been inclined to implicate the accused falsely there seems
scarcely any reason why she would not say that she saw him deliver
blow that accounted for the sound that was consistent with that
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that was hit when she suddenly noticed that accused was
in her house though she did not see him enter.
When P.W.1 came to the door she saw deceased staggering
with his hands stretched out and P.W.2 rushing to support him from
arm-pits. P.W.1 rushed to the deceased to help support him
Meantime accused was pacing up and down and around this
trio swearing at the deceased by his mother's private parts and
in his utterances to kill
P.W.2 fully corroborates this portion of the evidence.
Her own version which, if I may say even at this stage, is very
that she was busy grinding corn early in the morning
when her attention was drawn to the outside by the bark of a dog.
When she came out she saw accused behind whom was the
deceased at the door. Her house and deceased's house face each other
only ten paces apart. The two were some three paces apart
when P.W.2 heard deceased ask accused what he was doing. At that time
and deceased were facing each other.
Accused did not reply to the question put to him by
deceased but delivered a blow with a stick, P.W.2 saw the blow land
head whereupon deceased grabbed the side of his upper
face. Deceased was not carrying anything but was wearing short
and a pair of trousers. Otherwise he was bare-footed.
Given the opportunity or forewarning that P.W.2 received
from the barking dog and the short distance that she had to travel to
scene there can be no doubt that she was able to witness all that
occurred outside from the beginning to the end. Given the fact
deceased was bare-footed when he came outside the door I have no
doubt that P.W.1's evidence is well corroborated that deceased
he arrived put his shoes off and went
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into bed. This alone would belie accused's story
that he observed deceased all along from where he
aroused him with accused's wife in the grave yard
till deceased on coming to his house propelled accused's
wife into it and turned round at the door and delivered a blow with a
at the accused.
Accused's deliberate attempt at misleading the court in
this' aspect of the matter further strengthen's the crown's version
had been a long long -time in the house before
accused's wife came there at dawn followed shortly by actions
attributable to accused.
This is further strengthened by accused's failure to put
to P.W.1 the version that she was incorrect in saying deceased came
the house first and accused's wife came next after this long
long time she attested to for that matter. Accused conceded that he
did not instruct his counsel on this. Hence it is not wrong to make
an observation that he is fabricating.
Furthermore accused conceded that it was only when he
was giving evidence that the court heard for the first time that be
found deceased and accused's wife in the grave yard
dying down under cover of a green and brown shawl. Needless to state
were true it could not have been left out when his version
was being put to the Crown witnesses especially when it was the
of those witnesses that accused did not say why he was
assaulting the deceased.
I accept the crown's version that deceased was. not
carrying anything when being assaulted by the accused. There was some
that he had been carrying a stick when allegedly he was
aroused from the grave yard where he was chased along with accused's
by the accused. If so, it is difficult to understand why
deceased would run away all that distance without putting up a fight
only start fighting when he was at the door of his house.
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Deceased's possession of a stick and. shawl which had
been used as a spread on the ground on which he and accused's wife
when aroused there is belied by the fact that credible
evidence led showed that no such things were seen or found at the
of deceased's house where accused said he had dropped them
after dispossessing deceased of them.
Indeed a prudent man having managed to dispossess his
rival of a weapon used in an attempt to harm him would have not
it until he handed it to the chief. Accused said he
reported the incident to the chief; and this appears to be true. If
he had presence
of mind to report as he says he did why if the stick
had been dispossessed from deceased would he not have presence of
mind to take
it along with him to the chief?
I have had a look at the stick with which accused struck
the deceased. It is a heavy timber stick measuring about one and
long wound with fused wire at far and near ends and
middle. The thick end is some ten centimetres in diameter while the
is about 6½. It tapers gently from end to end. If I may
add, severe use of such a weapon can hardly be without serious
P.W.3 'Manyakane Mathaba's story in its material respect
is a report of what accused told him after the latter had already
the deceased and left him at death's door. Indeed he said it
was not worth sending deceased for any medical treatment because his
life was not worth an hour's purchase. Thus since it is not
independent evidence but a report of what accused told him it does
improve on accused's story nor does it land any credence to it.
There doesn't seem to be anything to gainsay the
conclusion that the number of injuries deceased sustained were
inflicted by the accused.
It would seem therefore an idle waste of
time to determine how they were inflicted because at no time when
they were inflicted was
the deceased seen as the aggressor. There is
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reasonably high degree of probability that the sound of
something P.W.1 heard being hit followed by her observation of
a raised stick and the instant departure from the house
followed by deceased asking what accused was doing, was due to an
accused had dealt him in the house. Subsequent blood seen on
the sheet on the basis of which another mattress was used instead of
the one that was on the bed would tend to give credence to P.W.1's
version albeit given rather late in the day during cross-examination.
This attitude derives support from the fact that as to the standard
of proof there is authority for the view that it need not reach
certainty. If as in this case a high degree of probability shows
that an act has been committed, then that is enough.
Accused's version is that when he came to his village
from the mountain he learnt of the death which had occurred at
some hundred paces from the grave yard. He learnt that
his wife had gone to Hlaoli's place where there was a wake. He went
but did not see his wife. He made inquiries as to her
whereabouts but did not get or find any leads to where she could have
gone. He embarked on a hunt for her in several homes of his
relatives. It was when he went towards Lisema Mathaba's house the
to which passes near the grave yard that he found people
sleeping in the grave yard. He said these people were his wife and
The time was then dawn. He asked them "what are you
doing there." The wife said that's my husband.
Then they ran away. They headed for the deceased's
place. Deceased was in front on reaching forecourt he sent the
to the front, and made her enter first. Deceased got
in but turned round at door. When he delivered the blow accused
warded it off
with his left arm covered with his blacket.
Credible evidence shows that deceased was not armed so
there is no basis for a man armed with as lethal a stick as "Ex.1"
to claim that he was defending himself. No
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basis avails for the claim that accused's case qualifies
for treatment under the statutory plea in mitigation provided by the
No. 42 of 1959 (Homicide Amendment) because no basis has
been revealed in evidence that there was provocation except the one
by the accused. In any case even if accused's version were
to be entertained he would fall between the stools because having
to accommodate himself within the provisions of the above
Proclamation by attacking deceased at the grave yard he then claims
he was acting in self-defence when he got to the deceased's
home. Thus he lost his claim to the plea of provocation when he acted
in self-defence. But the essence of the matter is that there was
nothing to justify his so-called self-defence because evidence shows
that deceased did not attack him nor was he armed in order to inspire
accused with apprehension of immediate danger to himself.
I have indicated that accused's story cannot possibly
reasonably be true. It is therefore rejected on the score of
Because of the value I attach to the crown version it
seems to me that the only rational and common sense explanation of
wife came to deceased's home was that she had been
compelled by her husband in a bid to trump up some excuse for going
house in order to give vent to accused's extreme
jealousy inflamed by the delay incurred either before he found her or
came to her own house and got taxed about where she came
This view is expressed on account of the fact that in
argument counsel for defence made much of the fact that accused's
in deceased's house has not been accounted for by the
Crown. This submission overlooks the fact that accused's wife is not
as a witness against him in a charge such as the present.
But that is not to say accused was at any stage precluded from
her as his witness to
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support his version. He was under no compulsion to call
her, however he failed to do so hence the inference that he did not
because he knew that she would not support his story if it
I accordingly find accused guilty of murder as charged.
Accused is sentenced to five years' imprisonment.
J U D G E. 10th May, 1989.
For Crown : Mr. Qhomane For Defence : Mr. Lesutu.
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