IN THE HIGH COURT OF LESOTHO In the matter
SUTHA SHALE Held at Butha-Buthe
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
24th day of. August. 1989.
The post mortem examination report by Dr. Brackish shows
that the death of the deceased Rampinane Mokone was due to a big
bleeding into the left side -that this bleeding was as a
result of application of a blunt instrument on the deceased!s
As to the external appearances the report reveals that
there was blood coming out of the left ear. There were also observed
of the left skull which had a depression. There were
two centimeter wound on the upper lip towards the right and a three
wound on the occiput to the left.
His report was handed in marked Ex, "B". His
depositions were also admitted by the defence.
The crown led the evidence of two witnesses while the
rest of other depositions were admitted and made part of the record
proceedings save that of
P.W.5 Tlala who didn!t respond to the
The oral evidence of P.W.1 Masheane Shale revealed that
he is aged 70 and is an uncle to the accused. Their relations are of
harmonious nature. The two live in the same village of
Maphiring, P.W.1 is accused's father's younger brother.
The deceased was unknown to this witness; in fact to any
of the witnesses who gave evidence including the accused, save that
the Chief of Maphiring chief Lebina knew the deceased!s
father who was a subject of a neighbouring chief.
The accused stands charged with the murder of the
deceased who died on 31st August 1987.
P.W.1 can neither read nor write. It however appears
that on the late afternoon preceding deceased's death later in the
in the company of a fellow villager Tlala were proceeding
from the home of one Setefane where they had gone looking for beer
finding that it had been finished retraced their steps home to
Maphiring in disappointment.
On their way home they were overtaken by the accused who
went ahead of them and came to a stand still at a neck or pass six
paces away. P.W.1 and his companion came following at a
gentle pace. The accused confirms that he went past them and that he
ten paces away from them when he did so.
Thus P.W.1 was able to see that accused was carrying a
stick which this witness described at great detail and identified in
during these proceedings.
Shortly after the accused had gone past P.W.1 and Tlala
were overtaken by the deceased who was walking
hurriedly. He was wearing a blanket but was carrying
nothing in his hands as indeed the events did eventually
bear out at the place where he was found lying on the
ground a hundred paces ahead of P.W.1 who observed the encounter
accused and the deceased at that distance.
P.W.1 says it was at this distance that he saw the
accused rush at the deceased and beat him with a stick so much that
he fell to
the ground. P.W.1 says the accused beat the deceased
several times with that stick. The accused says he only beat him
On seeing this P.W.1 shouted to the accused who there
and then stopped beating the deceased, looked back and rubbed his
the ground. The witness made a demonstration of this
After doing this the accused left, P.W.1 detailed Tlala
to go and report this incident to the chief who sent out messengers
the accused who was eventually arrested and brought back to
the scene and questioned about this incident. In reply he is said to
have said he only saw himself assault the deceased and did not know
what he was doing.
The accused in his evidence said he also had set out on
the day in question for a different place where I would say that he
to find much beer had been brewed for the removal of the
mourning cloth ritual,
He does not remember how much beer he took. However two
four gallon tins of beer was shared between him and some others equal
to people who were in this Court room. My estimate of
people who were in there was about between twenty and thirty.
Later on the accused made his way home. It is common
cause that he went past P.W.1 and Tlala on the way. It is also common
that he waited some 600 paces ahead of them at the neck.
His version differs from P.W.1's in the following
respect. While P.W.1 says the deceased came following
the same direction as that which was followed by the
accused; the accused counters by saying the deceased came to the neck
coming from the direction of the village where the accused
was heading for
At this stage it is to be observed that P.W.1's story
was neither tested nor, let alone, gainsaid under cross-examination.
only heard for the first time when the accused was giving
evidence that P.W.1 was lying.
Mr. Klass for the defence wanted in his
submission to persuade the court to resolve this conflict of versions
in favour of the accused.
But in Small vs Smith 1954(3) S.A. 434 it is said
"It is, in my opinion elementary and standard
practice for a party to put to each opposing witness so much of his
own case of
defence as concerns that witness, and if need be, to
inform him, if he has not been given notice thereof, that other
contradict him, so as to give him fair warning and an
opportunity of explaining the contradiction and defending his own
It is grossly unfair and improper to let a witness's
evidence to go unchallenged in cross-examination and afterwards argue
he must be disbelieved-"
I agree with this quotation and in deference to this
dictum propose to reject the accused's version in favour of the
with my decision I incorporate the submission that the
accused merely brought this new thing into the picture so as to
deceased from the view of P.W.1 whose view is important in
that although he was too far to hear the exchange of words if any
the deceased and the accused he however saw the accused rush
at the deceased and beat him up. The deceased's path to the place
the accused was standing was not obstructed by anything. Thus
if the deceased did anything such as blocking the accused's path
would have seen
However the path from the village on the other side of
where the accused was standing to where the encounter took place is
from P.W.1's view. It is this state of affairs that the
accused wants to take- unfair advantage of. Hence my total rejection
I have tried in vain to find what the accused's defence
is. He did not plead intoxication though he claims to have taken
suggests his senses were dulled by this factor.
He however says the deceased insulted him by saying to
him "Jou Muur". This he says means go back to your mother's
He says the deceased was blocking his way and ordering
him to retrace his steps. He tried to avoid him by going to the other
of the neck but the deceased blocked his path there too. If this
was true P.W.1 would have seen it. I reject it therefore as false
However the question of the deceased's having insulted
the accused cannot as the evidence stands be rejected for there is
to gainsay it as the reliable witness P.W.1. was too
far to hear any exchange of words between the two.
I should add that though this is resolved in accused's
favour it however does not accommodate his. case within the
provisions of the
Criminal Law (Homicide Amendment) Proclamation 42
of 1959 which spells out the effect of provocation as applied in our
The part of the body assaulted and the weapon used are
sufficient to show that the accused had the requisite intent to
The evidence of P.W.1 was so satisfactory that on it
alone the court found that a verdict of guilty as charged would be
The accused is found guilty of the unlawful killing of
the deceased with the legal intent.
My assessors agree. Sentence : Sentenced to 14
JUDGE. 23rd August, 1989.
For Crown : Mr. Thetsane For Defence : Mr. Klass.
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