CRI/T/17/84

IN THE HIGH COURT OF
LESOTHO

In the matter of :

REX

V

LIKENKSNG NKETU Held at Quthing

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
13th day of December, 1989.

The accused was jointly charged with Motlalekhosi
Sehloho for the murder of Tekane Qosane who died in the house of
Motlalekhosi on
15th May 1983.

Motlalekhosi has not appeared to stand trial in this
Court; hence the application by the Crown for separation of trials.
The application
for separation of trials was granted by this Court.

The admitted evidence of P.W.1 Semaka Machekane in the
court below provides the background for a possible motive in the
perpetration
of this crime.

The deceased and P.W.1 were members of the Police
Volunteer Reservist Group.

The two intended to set out for Motlalekhosi's house to
apprehend Motlalekhosi's son-in-law Kelebone in connection with
theft of
a goat.

/It

-2-

It seems P.W.1 and the deceased did not go at the same
time to Motlalekhosi's house because at the time that P.W.1 was
pursuing the
plan to go to arrest Kelebone he was called by
Motlalekhosi and informed that his colleague had just been killed by
the same
Motlalekhosi.

P.W.1 indeed saw for himself that the deceased was dead.

The accused himself stays at the home of Motlalekhosi.
The latter is his uncle.

With the exception of the two Crown witnesses namely
P.W.3 Malikelenyane 'Mota and P.W.4 Mateboho 'Mota the entire
depositions of
witnesses who testified before the court below were
admitted on behalf of the accused and accepted by the crown including
the post
mortem report Ex."A".

The facts of this case fall within a very narrow
compass.

According to the oral evidence of P.W.3 and P.W.4 who
are eye witnesses Motlalekhosi invited them from P.W.3's home after
they had
been drinking at Jusi's house. They obliged and went along
with him to Motlalekhosi's home.

They got in and found the accused, Kelebone and other
people in there.

They were treated to some mugful of beer but before they
had had any meaningful sips therefrom the deceased came in carrying
an iron
rod three and half feet in length. This is an iron rod
usually referred to as a dropper used in constructing fences.

Motlalekhosi asked the deceased what he wanted there.
The deceased vouchsafed him no reply. The question was repeated
and when
the deceased remained silent Motlalekhosi hit him twice with
a stick on the head. The deceased didn't fall. Then Motlalekhosi
addressed
himself to the accused and Kelebone to join in the assault.

/The

-3-

The two witnesses who gave oral evidence are adamant
that they saw the accused belabour the deceased at least twice on the
head with
his Kolitsana stick.

The deceased fell. There was a general screaming of
women who were in there. They were not able to get out of the house
because Motlalekhosi
deliberately blocked their path to the door.
Indeed P.W.3's attempts were thwarted this way;while P.W.4 awaited an
opportune moment
when Motlalekhoei was busy stopping others from
going out, and grabbed hold of the door knob and went out.

These witnesses testified that it was not told to them
why the deceased was being thus assaulted.

The admitted medical evidence shows that the deceased's
skull was smashed in a manner akin to a smashed egg­shell. The
brain
tissue and part of the brain were protruding.

In the opinion of the doctor extremely savage force was
used in wielding the weapon that effected these injuries.

P.W.3 testified that she didn't know if the bela­bouring
on the deceased continued after he had fallen to the ground because
of
the commotion which was in there.

P.W.4 said she did not know if it continued because she
managed to escape only after she had seen the accused deliver his two
blows
and the deceased fall to the ground.

The accused gave his sworn testimony in which he told
the court that only Motlalekhosi is the man who assaulted the
deceased. He
said Motlalekhosi hit the deceased twice with a stick
on the head and the deceased fell to the ground; and when he was
about to
deliver the third blow the accused parried it with his stick
which he pinned into the wall above the head of the fallen deceased.

The stick even broke.

He said Kelebone was not at all in the house nor did
nor

/participate

-4-

participate in the assault.

The crown's version about the presence of Kelebone and
his participation in the assault was not challenged when crown
witnesses testified
to it. Only for the first time when the accused
gave his evidence was it said that those crown witnesses should not
be believed
because they were lying. But the authority in Small
vs Smith 1954(3) S.A. 434 at p. 438, read along with Phaloane vs
Rex 1981(2) L.L.R. at 246 is sufficient to show

that it is grossly unfair to let evidence by the other
side go unchallenged and only afterwards argue that it should be
disbelieved.

The accused's story in this respect is demostrably and
deliberately false. The eye witnesses told the court that the
accused participated
in the assault. The accused denies this but
fails to say why these witnesses could implicate him falsely in the
perpetration of the
crime charged. In a lame attempt at giving a
suggestion why they implicate him he said P.W.3 had been threatened
and thus forced
to implicate him. But this version was not put to
P.W.3 when she was in the witness box.

He further suggested that P.W.4 was influenced by P.W.3
to implicate him but this was not put to P.W.4 either. It is thus
clear to
me that the accused was not only fabricating but was intent
on misleading this court.

There is authority for the view that an accused who
gives false testimony does there by provide a basis the effect of
which is to
strengthen the case for the Crown.

It is not enough though that even if the accused's story
is improbable his is thereby a lost cause. The approach favoured
by the
authorities is that his story should not only be disbelieved
as improbable but must be shown as false beyond reasonable doubt.
Thus
even if the crown case has no defects in it if there is some
reasonable doubt in the totality of the case as it stands

/such

-5-

such doubt should redound to the accused's benefit.
Indeed the state's case need not be rejected or even be disbelieved
to entitle
the accused to his acquittal. Even if I subjectively
disbelieve him I should nonethe­less acquit him if the onus
resting on the
crown relying on credible witnesses has not been
discharged.

The accused made a demonstration of how he leapt to the
deceased's rescue. He completed the manoeuvre consisting of sailing
across
the floor and pinning a stick much shorter than the one he
said he used into the wall five paces away in one and half seconds
and
caught the simulated strokes effected by Motlalekhosi at the
fourth stroke. I give him credit for his show of agility.

However the eye-witnesses denied that this is what he
did. They say they saw him assault the deceased on the head at least
twice.
Their reaction to the fact that because of his deformity he
could not have been able to wield a stick in the right hand while his
left hand would necessarily have to be supported by something firm on
account of the paralysis on his left leg was that he is able
to
effect these movements for he is even a builder who becomes quite
speedy in his building business.

Indeed the agility he manifested before this Court
while intended to show how he managed to protect the deceased served
at once to
suppport the assertions for the eye witnesses that he
performs such feats without any difficulty.

I have no doubt therefore that the accused parti­cipated
in the assault of the deceased.

I further hold that because of his associating himself
with those who assaulted the deceased he attracted their criminal
stigma.

Medical evidence showed that the assault was effected
with a sharp heavy instrument.

/The

-6-

The deceased's iron rod is one such instrument. It is
inconceivable that he inflicted the injuries on himself with it. Nor
has it
been suggested he did.

The crown submitted that the accused used his Kolitsana
stick thus he did not wield the deceased's iron rod. I agree.

However he associated himself with anyone of those who
applied the iron rod in assaulting the deceased. He was present in
the assault.
He must have realised that the brutal manner in which
the deceased was being assaulted would possibly cause his death or
serious
injury but nevertheless participated in that assault
-regardless of the consequences which were more than likely to befall
the deceased.
The motive for the assault was clearly to help
Kelebone escape the arrest that the deceased was lawfully entitled to
effect.

I accordingly find the accused guilty of the murder of
the deceased as charged.

My assessors agree.

J U D G E.
13th December, 1989.

-7-

EXTENUATING CIRCUMSTANCES

Court found that extenuating circumstances in the
respect that the accused being a complete dependent of his roguish
uncle Motlalekhosi
was virtually his slave who was completely under
his influence.

Address in mitigation heard. Order:- Sentenced to 7
years' imprisonment.

J U D G E.
13th December, 1989.

For Crown : Mr Sakoane For Defence: Mr Fosa.