IN THE HIGH COURT OF LESOTHO
In the matter of :
LOPE MABEISA Held at Quthing
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
12th day of December, 1989.
September 10th 1988 was a day of festive activity at the
home of a 54 year old lady P.W.1 'Malikhang Maime. The occasion
baptism of the children of P.W.1's family.
Much as the Holy Scriptures to whose pronouncements
the newly baptised had just dedicated their lives denounce both the
and the taking of beer, it was not felt an incongruous
occasion by the elders of that family that beer should be made
in sufficient quantities to quench the thirst of ten
or so people who were gathered at P.W.1's home at Ha Raliemere to
in the joy of her family. Accordingly the husband of P.W.I
held the distinct honour of laddling out beer from a 20 litre tin to
those who were in attendance.
Like the rest of the people who had been there before
him the accused when he arrived at about 7.00 p.m. was also
given his share of the contents of the 20 litre tin by
the hospitable husband of P.W.1.
In keeping with the mood of the occasion there was hymn
singing amidst which a hearty conversation was going on among those
seated around the table which was in the middle of the house
some seven or eight paces away from the door.
The accused, P.W.5 Likhang Maime and P.W.3 headman
Ramahapela Ramabanta were sitting abreast of one another on the one
side of the
table while the deceased Phakiso Banyane was seated on
the opposite side but at an oblique angle vic a vis the
accused. It was during this conversation that the accused
expressed his preference of Sesotho beer to hops.
P.W.I who was sitting close to the door saw the accused
rise and heard him address himself to the deceased as follows :
"elder brother will you come outside so that we can
speak to each other."
This invitation was heard by P.W.5 as well as by P.W.3.
Although the deceased's name is not "Moholoane" translated
English as "Elder Brother" it became clear to P.W.5
that the accused was addressing himself to the deceased for he was
facing him when he made that utterance.
It seemed to P.W.1 that when the accused arrived he was
already drunk for he even spilled beer on other people. More over
to P.W.1 she knows the accused so well that she can tell
whether he is drunk or sober for he easily gives himself away by
noisy when drunk.
The crown evidence shows that the deceased complied when
asked by the accused to go with him outside. This evidence shows
two went out following each other, the accused leading the
way and the deceased bringing up
They later came back into the house. However it appears
no attention was paid to the order in which they came back nor to the
that separated their re-entry into the house.
After some interval the accused once more said the
deceased should go out so that they could talk to each other. Once
more the deceased
complied and the original order in which they
went out on the first occasion was maintained.
The door closed behind the deceased and immediately
afterwards P.W.1 heard a heavy thud against the door from outside.
this thud was heard five minutes after the two had exited
but it turned out that in fact the thud occurred within an interval
a count from one to five as this witness satisfactorily did
the count. According to my watch at which I was looking as she
from one to five it seemed that the thud occurrred three
seconds after the door closed behind the deceased.
Apprehensive of what could have happened outside P.W.1
opened the door there and then and looking out side she saw the
lying face up outside the door while in the same moment she
saw the accused dropping his blanket and running away from where the
deceased had lain. She there and then shouted P.W.5's name and asked
him to come outside to see what had happened to the deceased.
P.W.5 obliged. He found the deceased lying in the
position described by P.W.1. He observed that the deceased's head
was lying about
half a pace from the door step while the rest of the
body including the lower limbs were resting on the stoep. P.W.1 and
that a gurgling sound was produced from the deceased's
throat. They helped raise him and supported him on either side into
P.W.3 and others observed that he had a cut and open
wound around the root of the throat region and that foams of blood
out in rythm with the deceased's respiration.
They also observed that the deceased appeared to have
sustained a stab wound that gave the impression that an instrument
one side of the deceased's cheek and came through at
the other cheek. The deceased attempted to speak but no voice came
The accused's blanket was later retrieved from where it
had fallen and eventually handed in in this Court marked Ex."1".
The medical evidence which was admitted on behalf of the
accused along with the report Ex."A" is very sketchy and
no reference to the cheek to cheek wound observed by the eye
witnesses including the D/Sgt. Mosifa P.W.7 who testified that on
the deceased's dead body he observed two wounds below the
left eye and another wound below the chin around the windpipe.
P.W.7's observations were not challenged on behalf of
the accused. The only challenge of some substance related to his
of the Judge's rules in that he did not caution the
accused before the latter gave his explanation but only afterwards in
to the charge of murder that was given to the accused.
Likewise P.W.6 Trooper Motenalapi was challenged for his failure
to observe those rules in that he cautioned the accused only
after he had obtained an explanation from him in relation to the
of the assault with intent to do grievous bodily harm
preferred against the accused prior to the death of the deceased.
Although these two officers, despite their long
experience in the police force namely ten years in respect of P.W.6
and 23 years in
respect of P.W.7, have breached these important
administrative rules of procedure the importance of which
centres on the fact
accused in giving his explanation should be on his guard
and know that what he says may be used in evidence supporting the
preferred against him they did not hide from him the fact that
they were policemen. P.W.6 was in uniform. P.W.7 called the accused
to his own office at the police station at Mafeteng.
I should however emphasise that the Judges' rules
guarantee an accused person's rights before and during trial. They
thus should be
observed by police officers for these rules are
intended to protect an accused person against being taken advantage
of. Where it
appears an accused person has been prejudiced because
of police non-observance of these rules whether intentionally or by
an accused person has often been freed from criminal
liability. Police must therefore take note.
After the deceased had been placed in the house, P.W.3
in company of P.W.2 and P.W.5 set out for the accused's place. P.W.3
at the door and was answered by the accused's wife who on
being asked where the accused was told a lie that he was not in the
However after the chief explained that it was necessary that
the accused should accompany him to Tumahole's home where it was
that the deceased had received injuries immediately after
being seen in the accused's company the accused came out wearing
When he came next to P.W.5 he delivered a blow at him
with a stick. P.W.5 warded the blow off. The accused was heard to
he was ready to meet his own death. After his blow had been
parried by P.W.5 the accused made good his escape into the night and
was only seen by these witnesses after his arrest by the police.
He was arrested by P.W.6 on 11.9.88 in connection with a
charge of assault with intent to do grievous . bodily harm on the
before the latter died.
He was subsequently charged with murder by P.W.7
after the latter learnt and satisfied himself that the
deceased had died. This was on the same date i.e. 11.9.88 when P.W.7
the accused at the police station where he had been kept under
arrest by P.W.6.
The accused told this Court that it was the
deceased who on the two occasions that they went out,
had asked him to go out. He said that the deceased within hearing
who were in the house said on both these occasions the
accused should go away because he was a boy for he had not been to
or circumcision school.
Needless to say the crown witnesses denied these
allegations and stated that they would have heard if any such were
made by the deceased
in the manner and pitch of voice described by
The accused said the deceased in fact on both these
occasions was the one who went out first followed by him.
was never put to the crown witnesses. Nor was it
put to them that the deceased must have been having a sword while he
the house; yet in Small vs Smith 1954(3) S.A. at 434 it
"It is, in my opinion elementary and standard
practice for a party to put to each opposing witness so much of his
own case or
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 go unchallenged in cross-examination and afterwards
he must be disbelieved."
The court heard for the first time when the accused was
giving evidence that the deceased was wearing a blanket in the house
crown witnesses whose evidence showed that the deceased was
on short-sleeved shirt were never challenged.
The accused wants the court to believe that the sword
used by the deceased was not only on him throughout his
presence in the house but was in fact used by the deceased to injure
finger to his right hand yet hardly five seconds after the
discovery of the seriously injured Phakiso outside the door this
was not anywhere to be found. The accused admits that the
sword did not betake itself from the deceased. Likewise if anybody
it away P.W.1 would have seen him for she did not only respond
immediately to the thud outside the door but she also saw the accused
run away from where the deceased had fallen. By token of this rule
the accused himself would have seen the person who removed the
from where the deceased had fallen.
Faced with this difficult situation the accused
suggested that the sword must have been removed by some miracle or
means. I cannot accept that.
Although the accused says that the deceased after
slapping him on the face followed up that action by attacking him
with a sword
that injured him on the small finger he did not show the
chief this injury. He contents himself with saying he told the chief
"that man has also injured me" at the time the chief
had gone to fetch him from his house.
He says he failed to show the chief that injury because
P.W.5 who was in the chief's company had hit him behind the head with
Yet when he got arrested only a day after the incident he
did not show his injury to any of the police who interrogated and
him. In fact P.W.6 said that the accused bore no injuries
following the fight that the accused told him he and the deceased
engaged in the previous day. The accused said that the injury
that he sustained was deep and profusely bleeding and that it took
three weeks to heal yet he never asked that he be allowed by his
captors to let him have it medically treated.
I have no hesitation in rejecting as false beyond
doubt the accused's story that the deceased called him a
boy or that the deceased sought to expel him from the feast on the
that he was not from the initiation school.
I reject his story that the deceased injured him with a
sword. I reject his story that P.W.5 hit him on the head with a
The accused was hard put to it to say why he did not
complain to the headman who as the lawful authority was the proper
appeal to if the deceased was tormenting him at P.W.1's
house. The headman was present and readily available at this feast
the alleged occurrences.
The accused said that after the deceased had slapped him
on the face and attacked him with the sword the accused in
the deceased twice with the timber stick Ex."2".
He did not observe where he hit the deceased.
Asked whether, in view of the medical evidence that the
breakage of the deceased's collar bone was consis tent with the
of a blunt instrument, his timber stick was not the
instrument used to cause that injury the accused said he did not
There are a number of discrepancies in the crown
evidence both among themselves and as regards the evidence some of
them gave previously
in the court below compared with the one given
in this Court.
P.W.1 said the feast during which the deceased was found
injured was on 9.9.88 whereas in the court below she had said this
was held on 10.9.88. In this respect her evidence differs not
only from that she gave previously in the court a quo but also
from that of P.W.3 and P.W.5 who said it was held on 10.9.86. Some
witnesses said the deceased was carried into the house.
One said he
was only supported on either side but was able to and did walk into
the house. Some
witnesses said the wounds seemed to have been caused by
a sharp instrument. The doctor said those he described were caused
blunt instrument. The police Sgt. refers to two wounds on the
left cheek. Other witnesses say there was one wound on each cheek.
P.W.5 said the deceased did not drink because he had
special duties to perform at the feast but P.W.3 said the deceased
P.W.I also said the deceased was not drinking that
P.W.1 said the accused and the deceased appeared to be
angry when they left for the door. P.W.5 sail they never spoke to
except for the words addressed to the deceased by the
accused. P.W.3 said they were conversing even though they were
the table and their conversation was drowned by the
noise. The order in which the deceased the chief and P.M.2 were
seated is different
when described by the chief from the description
given by P.W.5. But all these discrepancies are not fatal to the
case for the crown.
The discrepancies with regard to the date when
the assault occurred is not only well covered by possible lapse of
but the statute itself says the phrase "on or
about" as it appears in the charge sheet where time is not of
as would be the case where an alibi was pleaded covers
three months before and three months after the date specified. The
for the crown were frank and candid showing honesty and
readily admitting discrepancies observed in their evidence and
no desire to falsely incriminate the accused.
The medical evidence showed that the deceased's mandible
was fractured. Further that the collar bone was broken; and that the
sustained severe oedema of the neck (meaning severe swelling
of the neck) and severe surgical emphysema (meaning severe pockets of
air under the skin) and that the surgical emphysema and the oedema
were a result of the fractured mandible. Consequently the deceased
asphyxia (meaning deprivation of oxygen or inability to
breathe) due to the severe oedema of the neck and the severe
concluded that these injuries were consistent with the
use of a blunt instrument.
The accused admitted that the deceased could not have
sustained the other injuries observed on him except if caused by
whom the deceased had had a fight. Indeed nobody saw
the accused effect the injuries on the deceased. But the only
and rational approach dictates that within so short a
time as the three seconds at the end of which P.W.I saw the deceased
down and the accused run away from him no one else but the
accused would be accountable for the injuries sustained by the
See R vs Mlambo 1957(4) S.A. 737 et seg.
The accused said that throughout the period he he
in the house he had his stick on him; but even though he
heard P.W.3 when giving evidence say that he had nothing
his hands for P.W.3 would have seen it if he had any
weapon for they were sitting next to each other the
accused did not gainsay this version. He only
decidedwhen it was his turn to give evidence to say that P.W.3
was not telling the truth. See Small vs Smith
See also Phaloane vs Rex 1981(2) LL.R. at 246
where Maisels P. as he then was said:-
"It is generally accepted that the function of
counsel is to put the defence case to the crown witnesses, not only
to avoid the
suspicion that the defence is fabricating, but to
provide the witnesses with the opportunity of denying or confirming
the case for
the accused. Moreover, even making allowances for
certain latitude that may be afforded in criminal cases for a failure
to put the
defence case to the crown witnesses, it is important for
the defence to put its case to the prosecution witnesses as the trial
is entitled to see and hear the reaction of the witness to
every important allegation."
P.W.1 said she did not bear the accused any grudge. The
accused on his part gave no suggestion why P.W.1 or
any of the crown witnesses could give false evidence
against him. The only suggestion made on his behalf was that P.W.1
to the deceased and not to the accused. P.W.1 reacted by
showing that notwithstanding that this is the position she was not
on giving false evidence against the accused.
The crown submitted that assuming without conceding that
the deceased had a sword hidden on his person he couldn't have
the injuries on himself. The injuries were inflicted by
the only person who fought with him on that day and the accused
under cross examination that he is the person who fought
with him that day. The crown called in aid the authority of Rexvs Blom. 1939 A.D. at 202 for purposes of invoking
inferential reasoning. This is spelt out at page 66 of CRI/T/22/88
Rex vs Motamo Sehlabaka
The crown submitted that the defence case was shattered
under cross-examination. The accused had made out that the deceased
aggressor but under the heat and pressure of
cross-examination he persisted in his notorious assertion that he was
telling the truth
without saying how that could be so in the face of
incontrovertible evidence by the crown witnesses who could have for
when the deceased shouted twice that the accused
should go out for he was not circumcised. But the crown showed that
P.W.2 is known
by accused not to have been to the initiation school
yet P.W.2 was not asked by the deceased to quit for reasons advanced
the accused. It is strange that the accused should have kept
the question of his injury a well guarded secret confided only to his
I have already indicated that the crown evidence is far
superior to that of the accused. I should not be understood to imply
the case is therefore to be decided on preponderances.
But because of the falsity of the accused's evidence
I wish to refer to the authority of Broadhurst vs Rex(1964) AC 441 at 457 that
"Save in one respect, a case in which an accused
gives untruthful evidence is not different from one in which he gives
But if on the proved facts two inferences
may be drawn about the accused's conduct or state of
mind, his untruthfulness is a factor which the jury can properly take
as strengthening the inference of guilt ..."
On the basis of the above authority it is important to
avoid the natural tendency that because the accused is lying, it must
he is guilty and accordingly convict him without more ado,
whereas the burden of proof of the accused's guilty lies on the crown
throughout. In other words the burden is not discharged simply
because the accused has been lying for he may be lying for reasons
which are not connected with his apprehended or surmised guilt at
all. The crown relied on Rex vs Fred Tekane 1980(2) LL.R. at
342 in support of the view
"that it is not encumbent upon the crown to prove
scientific cause of death provided .... it is able to prove that the
resulted in death was perpetrated by the accused."
Given the estimated size of the sword alleged to have
been used against the accused by the deceased i.e. that it was two
feet long Mr Pitso conceded that the accused may
not be entitled to double benefit namely that because the sword was
two and half feet long the people
inside the house would have seen
it; therefore it ought to have been short enough for the deceased to
have kept it unseen on his
person, while at the same time it should
have been as long as the accused gave the court to believe it was in
order to justify the
accused's vicious reaction towards its use by
the deceased. However credible evidence shows that there was no
sword of whatever
size for had there been one; common sense dictates
that it should have been found lying around the deceased where the
Thus the crown's reliance on R vs Ndhlovu 1945
A.D. 369 at 386 is not out of step with acceptable submission that
legal authorities disapprove of indulgence in speculation
possible existence of matters upon which there is no evidence, or the
existence of which cannot reasonably be inferred from
Buttressing its view on the above authority the crown
submitted that the accused came out with fanciful expla-nations about
received his injury on the small finger. The crown called in
aid the authority of Miller vs Minister of Pensions
(1947) 2ALL E.R. 372 and 373 where a warning was given against
fanciful explanations being allowed to deflect the cause of justice.
Further reliance was reposed on Mlambo where at
738 it was stated
"An accused's claim to the benefit of a doubt ...
must not be derived from speculation but must rest upon a reasonable
foundation created either by positive evidence and or
gathered from reasonable inferences which are not in conflict with,
by the proved facts of the case."
It would seem to me that the existence of the deceased's
sword is outweighed by evidence showing that there was no such sword.
The crown submitted that it does not rely on what the
accused told the police but on independent evidence before court.
properly it concluded that in any case there is no question
of any confession before this Court.
The accused maintains that when he and the deceased went
out the deceased must have been aware that the accused was carrying
2 yet when deciding to take the accused by surprise and
assault him he only slapped him on the face and subsequently applied
sword instead of using the sword from the word go especially
when he was aware that for any slight mistake the accused would gain
upperhand because of the stick in his possession. I
find that the sort of possibility postulated by the accused in this
falls within the four corners of what in Miller vs
Minister of Pensions (1947) 2 ALL E.R. 372 at 373 is embodied in
the expression "of course it's possible but not in the least
which event it is concluded that the crown's case
has been proved beyond reasonable doubt.
Because of the nature of this case I wish to borrow
the words of Tebbutt J. in S. vs Jaffer
84 at 88 et seg. where he said :
"The story may be so improbable that it cannot
reasonably be true. It is not, however, the correct approach in a
to weigh up the State's version, particularly where it
is given by a single witness, against the version of the accused and
to accept or reject one or the other on the probabilities."
Indeed arguing in the same vein Van der Spuy A.J in S
vs Munyai 1986 (4) S.A. 712 at 715 said
"There is no room for balancing the two versions,
i.e. the State's case against the accused's case and to act on
In S vs Singh 1975(1) S.A. 277 it was said that
the proper approach was for a court to apply its mind not only to the
merits and demerits of the
State and the defence witnesses, but also
to the probabilities of the case.
"This was to ascertain if the accused's version was
so improbable as not reasonably to be true. This however, did not
departure from the test as laid down in R vs Difford
1937 A.D. 370 at 373 that, even if accused's explanation be
improbable, the court is not entitled to convict unless it is
not only that the explanation is improbable but that beyond
any reasonable doubt it is false. If there is any reasonable
of his explanation being true, then he is entitled
to his acquittal."
Thus in S vs Kubeka 1982(1) S.A. 534(W) at 537F-H
it was said regarding an accused's story:
"Whether I subjectively disbelieve him is, however,
not the test. I need not even reject the State case in order to
if there exists a reasonable possibility that his
evidence may be true. Such is the nature of the onus on the State."
In keeping with this view Van der Spuy said at
"In other words, even if the State case stood as a
completely acceptable and unshaken edifice, a court must investigate
case with a view to discerning whether it is
demonstrably false or inherently so improbable as to be rejected
I have no doubt that the accused's story is not only
palpably false but it is so inherently improbable that it should be
as demonstrably false beyond reasonable doubt.
Taking the cummulative effect of all the circumstance::
of this case and weighing them together carefully I find that the
of guilt is the only one which can reasonably be drawn
against the accused for the fatal assault inflicted upon the deceased
the home of P.W.1 on 10.9.1988. His claim of self-defence
cannot stand because it has been shown that the sword he alleges the
wielded against him was just a product of the accused's
I find the accused guilty of murder as charged. My
JUDGE. 12th December, 1989.
ON EXTENUATING CIRCUMSTANCES
Regard has been had to the accused's background in an
effort to find whether or not extenuating circumstances exist in this
The accused's background as an unsophisticated
semi-illiterate peasant who herds after stock was a factor which was
advanced on his
behalf as warranting a finding that extenuating
circumstances exist in this case. The court was asked to take into
that the accused originates and lives in a rural area
where practices of the kind he embarked on are not unusual thus
incur a moral stigma.
It was submitted therefore that the test to be applied
is a subjective one and in doing so the accused's subject tive mind
product of the sort of community in which he lives should not
be divorced from the moral attitudes of such a community. The
had taken beer.
In the same way as was the case in CRI/T/59/88 Rex vs
Thembinkosi Yawa (unreported) where an accused who was a Xhosa
laboured under a long nurtured dislik-of being disparangingly
referred to as a Xhosa
even though the case showed that it was false
that he killed the deceased because the deceased had incensed him by
calling him a
Xhosa disdainfully, the court nonetheless attributed
some weight to not too remote a possibility that psychologically the
nursed a phobia against being called a Xhosa to the extent
that after taking liquor he imagined that the deceased had called him
a Xhosa, and thus gave vent to the pent up desire to inflict
physical injury on whoever he thought was likely to belong to a
of those who called him Xhosa during his growing up period.
Likewise people from the Circumcision schools are apt to
insultingly refer to non-initiates as boys or dogs or as possessed of
It is not unlikely that the accused
was referred to in these derogatory terms one time or
another during his growing up process. He must have detested this
for an opportunity when he could prove himself a man for
the benefit of initiates in a man to man fight, even if unprovoked,
one of the initiates. Hence the fact that after imagining
that the deceased who perhaps was given authority to play a distinct
role at this feast the accused felt piqued and belittled for the
deceased had been so appointed because he was "a man"
not "a boy" by virtue of the fact that he had been to the
This pent up dislike for being called a boy, even though
he was not called one, combining with the liquor the accused had
vent on this occasion. The unfortunate deceased was the
I thus come to the conclusion that extenuating
circumstances are shown to exist in this matter.
No previous convictions.
Sentenced to 11 years' imprisonment.
J U D G E. 12th December, 1989.
For Crown : Mr Sakoane For Defence : Mr Pitso.
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