IN THE HIGH COURT OF LESOTHO
In the matter of :
KEPA PIKAPA KEQE Held at Butha-Buthe
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
11th day of May, 1989.
The accused is charged with the crime of murder of
Edward Morapalla who the crown alleges the accused killed unlawfully
on 4th December 1987 at Ha Ramolekalali in the
Accused pleaded not guilty to the charge.
The defence admitted the preparatory depositions of
P.W.1 Phororo Thuto, P.W.3 Paballo Polihali and P.W.5 Dr Schumacher.
P.W.1's evidence is that on the day in question
there was a (Letsema) communal hoeing work party at
the field of Litseho. Among those present wereaccused
After the hoeing the hoeing party consisting of many
people sat down to drink beer. Accused and deceased also took some
P.W.1's observation they did not seem drunk.
It would seem that not much beer was brewed for
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this occasion because cross-examination of P.W.4 Makoae
Morapalla deceased's brother revealed that deceased had told him that
sitting in the field only one four-gallon tin of beer was
drunk. A further four-gallon tin was drunk later at the field owner's
The alleged story of the deceased told to P.W.4 is corroborated
by the admitted evidence of P.W.1 as to the fact that from the field
the hoeing party went to Litseho's home and that further feasting was
While accused and deceased were in Litseho's house an
oral quarrel erupted between them. It appears deceased had remarked
cattle which had strayed into the grave yard might disturb
the soil of freshly dug graves. Accused took exception to this remark
and charged that deceased was prompted by sheer jealousy to make it
because the cattle in question were accused's. It turned out
cattle were not accused's at all but one Stephen's. The quarrel was
put down by those present in the house. Though the disputants
the reprimand they nonetheless appeared upset.
It is common cause that in order to reach
deceased's parental home from Litseho's one has to go
past accused's home.
The evidence of P.W.1 shows that immediately after
deceased left for his parents' home accused also left.
Some time afterwards P.W.1 saw deceased leave his
parents' home for his own home. The two even had some hearty exchange
of words when
P.W.1 was enkraaling his sheep and deceased was on his
To go back home from his parents' home deceased had to
pass a little below accused's home.
After enkraaling his sheep P.W.1 heard 'Malimakatso
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P.W.2 calling out. Consequently P.W.1 headed for a
spring lying along the way to deceased's home. P.W.1 said many people
around the spring, including P.W.2, one 'Masethole and
school children. Deceased had laid down on his side. Deceased
the gathering that accused had hit him on the head with a
stone, further that deceased said he did not know with what accused
hit him at the back of the head. A lot of blood was oozing from
the wound on deceased's head.
When lying there deceased did not have anything in his
hands. Accused was not there where deceased was found lying on the
Many other men arrived at the spring at sunset and
helped one another to take deceased to the chief's place for deceased
longer walk on his own. The chief ordered the men to go and
arrest the accused and bring him to him.
Accused was found at his home and brought to the chief's
The following day messengers were sent to take accused
to the Mapholaneng Charge Office. Deceased was conveyed to
in one Abdul's car.
Days afterwards P.W.1 saw accused at his house in the
company of two policemen. P.W.1 saw accused take out a knobkerrie
from a wall
between his houses and an iron rod from inside one of his
houses and gave them to the police.
The police informed P.W.1 that deceased had died.
P.W.3's admitted evidence shows that on 6th December 1987 he was at
when he saw two policemen and accused arrive there.
Having been informed of deceased's death P.W.3 was detailed as a
the chief to accompany the police to accused's home
where the accused took out a knobkerrie between his
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houses hidden among some grass and an iron rod from
inside his house and handed them to the police. Accused and the
P.W.5's admitted evidence shows that on admission at the
Mokhotlong hospital the deceased was almost unconscious. He had
with breathing as well as a brain problem resulting in
unconsciousness. Deceased died the same day in hospital.
Two days afterwards i.e. on 7th December 1987 P.W.5
performed the post mortem examination on the body of the deceased and
that there were two open wounds on both sides of the scalp
above the ears and a fracture of the left temporal skull with
and epidural haematoma causing brain damage;
There was also a small superficial laceration on the
P.W.6 Detective Trooper Foloko's admitted evidence is
that the two exhibits marked "1" and "2" remained
custody since their retrieval from accused's home by
accused from an old wall and his house respectively. These had been
to P.W.6 by accused himself.
P.W.2 'Malimakatso Morapalla gave her evidence on
oath that she resides at Tloha-re-bue in the district of
Mokhotlong. Accused is her cousin and known to her. Deceased was her
On 4th December 1987 she had gone to hoe at her field.
She came back from there in the company of 'Malikhapha. As she
the hill next to her house she saw accused emerge from his
house already running.
When she first saw accused she was some hundred paces
away from him. Accused was speaking in a raised voice saying "I
to kill him there in the trees."
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It is worth mentioning at this stage that accused in
a sworn statement before this Court said the fight
between him and. deceased took place not at the ridge as stated by
P.W.2 but at
the place of the trees.
P.W.2 said accused was wearing a blanket and that he was
not holding anything.
She further said accused stood at the ridge where he
stopped. The ridge was estimated at about one hundred and fifty paces
where P.W.2 was when she saw accused stop and remain
standing. She testified that from the time accused was seen running
house till he got to the ridge accused was always within her
P.W.2 said she was surprised when she heard the words
uttered by accused so much so that she even spoke to 'Malikhapha and
what could have confused your brother."
The latter replied that she did not know. It was while accused was
standing at the
ridge that P.W.2 saw deceased coming along the road
passing through P.W.1's village. This village is said to be not far
village because the two villages share a spring. The
villages were estimated to be about fifty paces apart.
Deceased went along and caught up with a girl Libuseng
along the way. He overtook her and proceeded along till he came next
accused was. To reach his village deceased would have to
pass the ridge referred to earlier.
P.W.2 said she did not know what was happening but
immediately when she took a look she saw accused hit the deceased
with a hand.
Deceased fell immediately to the ground but accused hit
him once more whilst thus fallen.
After meting out these blows accused returned. Libuseng
had not yet gone past the ridge when the
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incident took place there.
P.W.2 raised an alarm when she saw the assault.
Consequently P.W.4 Makoae Morapalla responded to the clarion call
that had been transmitted
to him through 'Malikhapha who had received
it from P.W.2.
P.W.2 proceeded to the scene. Along the way she saw the
accused on his way back but moving along a parallel path some ten
from P.W.2's path.
She heard accused muttering to himself "I have
killed that thing of yours there it has vomited meats."
Accused was holding a knobkerrie under his left arm-pit
but over his blanket.
P.W.2 was joined by P.W.4 along the way and they found
deceased at the spring beyond the ridge.
Deceased had stretched his arms out and was gaping and
gasping repeatedly. P.W.2 could see blood on his jacket and at the
had water drops on his face showing he had just washed.
P.W.4 asked deceased what had happened and deceased said
"brother I am tired" and kept saying that; or "Kepa
P.W.2 observed that deceased was swollen.
P.W.2's testimony was criticised under cross-examination
on the grounds that she was exaggerating and inclined to make her
richer in that her alleged remarks to 'Malikhapha in this
Court differed from those she is recorded as having said at
examination; further that in this court she said accused
said he would kill deceased at the place of the trees whereas at P.E.
mention of trees is made with regard to this point, further still
that at P.E. she said accused was hitting deceased with a fist
whereas in this Court she said it was with a hand.
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My assessment of these criticisms is that when taken
along with the substance of her story and the totality of the
evidence in this
case they pale into insignificance.
For instance the fact that when she saw accused come
back from the ridge he was carrying a knob-kerrie is corroborated by
evidence of P.W,4 Makoae Morapalla that he saw not only
the knobkerrie but an iron rod both of which weapons accused even
attempt to hide under his blanket.
Indeed as was properly submitted by counsel for the
crown if P.W.2 was bent on fabricating or falsely implicating the
would have had no reason for saying when proceeding to
where deceased later found the accused she saw the latter already
the knobkerrie which she later saw when she and he crossed
their respective paths.
Indeed P.W.2's honesty is borne out in this respect by
not straining to make her story more truthful when she said she
if accused was holding anything when he set out for the
She did not want to commit herself by saying that
accused was assaulting deceased with a stick or any other objects
besides the hand
or fist though she, having seen the nature of the
injuries and known that after they had been inflicted she saw
she appreciated that it might have been the one
used to inflict those injuries. However she did not, despite this,
budge from her
version which on all accounts would seem to reduce the
role played by accused in meting out the assaults on the deceased.
More than anything else it seemed to me that the
defence's cross-examination of P.W.2 was geared at eliciting
rather fine details
with the result that she became at times
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P.W.4 testified that deceased is his brother. On the day
in question P.W.4 had not attended the "letsema" to which
He instead was hoeing his parents field. When the
letsema came to a close P.W.4 also knocked off from the field he was
went to his parents' home where he was later and shortly
joined by deceased. The two conversed for a long time before deceased
When he left deceased was not holding anything. P.W.4 heard his
wife 'Masethole shouting for him. Thereupon he went into the house
pick up his stick and proceeded to the place where deceased was.
Along the way and as he was running he met with accused who was
running but in the opposite direction. Accused was holding a
knobkerrie and an iron rod. P.W.4 pointed these out easily before
I am most impressed with P.W.4's evidence. It sounds
not only credible but was given with the confidence that showed he
he was talking about.
The cross-examination of this witness appeared to have
been the denial of all that he said.
"Accused was not wearing a red blanket - ?
I said he was.
He has never had one - ?
He has it. It is there at home.
He has a grey one which he was wearing - ?
He was wearing a red one that day when I met him.
You mistake him for another person -?
I know him. We live in the same village.
He was not holding a knobkerrie - ?
Nor an iron rod -?
He never spoke to you-?
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He did and he gave me a clear answer to my question."
I therefore accept this witness' evidence as true
because of its high and unparalleled quality. I believe him when he
told him accused hit him with a knobkerrie on the chest
when he was down.
Accused gave his sworn testimony.
He denied ever being seen by P.W.2 on the day in
question. He denied utterances attributed to him by that
witness. He denied that he came running out of his house and. was
at the ridge. The most important aspect of his version is
that he says he hit deceased only once with a stone.
Accused came up with a new story that deceased had
struck him with a stone behind the shoulders such
that he even fell to the ground. He conceded that this
indeed was something new as it had never been put to the crown
But he said he had told this to his counsel.
Indeed his counsel confirmed this and stated that he
forgot to put this important aspect of his client's defence to the
I have been told and, indeed it is not unheard of that
Homer sometimes nods, I have never on the other hand been told that
may also mean that Homer sometimes goes into an
However I do accept Mr. Kolisang's sincerity of
his confession to this omission albeit with utmost bewilderment. To
this extent accused's credibility is vindicated.
However even assuming that his belated version is true
that he acted in self defence against the deceased, it becomes
to see how deceased on credible evidence is shown
to have suffered
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injuries in more than three places when accused had hit
him only once with a stone on the head. His counsel suggested that
might have hit his head against the stony ground where he
fell after being struck by the accused once. But Lord Denning inMiller vs Minister of Pensions 1947 2 ALL E.R. at 373 says
"The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice."
While R vs Ndlhovu 1945 A.D. at 386 shows that
legal authorities disapprove of speculation
"on possible existence of matters upon which there
is no evidence, or the. existence of which cannot reasonably be
I do not only believe that deceased was dealt the severe
blows above the two ears and at the nape by the accused I also
accept the deceased's dying declaration that accused hit
him with a knobkerrie on the chest when he was already on the ground.
deceased's dying declaration it seems not only one weapon was
used to assault him. That P.W.2 saw accused deliver a blow with
means he did followed by delivery of another when deceased
was already down amply shows criminal intent.
The knobkerrie itself is a crude piece of wood which
cannot be wielded by any reasonable person against another without
that serious injury might ensue or possibly death.
The part of the body injured namely the head is an
additional ground from which criminal intent can be gathered.
I find that the crown has discharged the onus which
throughout this case has been resting upon it. I accordingly find
My assessors agree.
J U D G E. 11th May, 1989.
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Factors affecting moral blameworthiness of the accused.
After letsema there was drinking at home of Litseho.
Consumption of liquor has different effect on different people.
Closeness of drink to events that took place. Serious
altercation concerning cattle at grave yard. It was late afternoon;
place at sunset.
Accused may have suffered some provocation however
slight this would affect his moral blameworthiness.
Even if he was lying when he said deceased attacked him
the belief that he did may reduce his moral blameworthiness.
Accused has no previous convictions.
Accused is 45 years old. He is entitled to mercy. He
has 4 minor children. He was prepared to tender plea to lesser
shows that he was remorseful. He has been in
custody since December 1987.
Sentence: Sentenced to thirteen years'
J U D G E. 11th May, 1989.
For Crown : Mr. Qhomane For Defence : Mr. Kolisang.
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