INTHE HIGH COURT OF LESOTHO
In the matter of :
V SIMON MABULA
Held at Quthing
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on
the 14th day of December 1989.
The accused is charged with the crime of murder
following the assault on Monyooe Tlaitlai the deceased who died on
22nd October 1988.
The defence admitted the depositions of P.W.l
D/Police-Woman Letele and P.W.5 Rasilasi Tlaitlai.
P.W.2 No. 5648 D/Tpr Tseloa gave oral testimony showing
that he met the accused at Tsakholo Police post on 21-11-88. P.W.2
at that Police Post at the time.
He was an investigating officer into the death of the
deceased in this case.
When the accused came on that day to report himself
P.W.2 cautioned and warned him.
The accused gave his explanation regarding the ...death
of the deceased. At the end of this he was given
the charge for the murder of the deceased.
Then on 24-11-88 P.W.2 went with the accused to the
accused's village at Matsoseng where in the presence of P.W.3
Matsosa the accused acknowledged the stick
brought there by the accused's brother one Motlatsi.
P.W.3 had been sent for by P.W.2 who had asked Tiheli to
summon P.W.3 from the communal garden where she had been working to
quickly to her home at the chief's place
P.W.3 then handed the stick to P.W.2 who left with the
Evidence shows that it was the accused who had asked his
brother where this stick was and asked him to bring it along.
An eye witness to the assault is P.W.4 Taelo Mosehle who
is an unsophisticated illiterate whose prime occupation consists in
stock. Although his estimates of the distances are no
exception to the usual mind- boggling inaccuracies purveyed usually
witnesses but more particularly by illiterates of
this society I have no doubt as to P.W.4's perception of events
place on the day in question.
On that day in the afternoon he had been to the mill to
grind corn at Lekhalong some 10 km. from this witness's home at Ha
A good distance away from Ha Majake P.W.4 saw the
accused assault the deceased with a stick on the head. He saw him hit
and felling him though on account of the distance
separating this witness from the scene he was not able to see how
many times the
blows had been delivered before the deceased fell.
However the witness is positive that only one blow
was delivered after the deceased had fallen to the
ground. There after the accused came towards P.W.4 leaving the
at the scene.
Then the accused who was pulling a horse walked
hurriedly passed P.W.4 in the opposite direction. P.W.4 recognised
the accused as
the man he had seen once a month back at the latter's
home at Matsoseng. Otherwise P.W.4 knows the accused's brothers very
and observed that their features bear some similarity to the
On the previous occasion when P.W.4 first met the
accused at the latter's home he greeted him and the accused requited
warmly. But on the day of the incident they did not
greet each other.
P.W.4 testified that from the time he saw the
belabouring take place up to the time when he and the accused went
past each other heading
in opposite directions nothing had
obscured his view from the accused nor had there been any people who
went past him in the
opposite direction before the accused did.
P.W.4 came to the scene where he found the deceased
lying on the ground and without touching him observed that he had a
the head. Thereafter P.W.4 went to report the matter to one
Mr Bulara. The deceased was not responding when P.W.4 tried to speak
P.W.4 had observed that during the encounter the
deceased was trying to defend himself though he was unarmed.
When he came to the scene P.W.4 saw a manufacture -made
whitish stick lying next to the deceased.
He had not been able to see if the accused was carrying
anything in his hands at the point when he and the accused went past
other in opposite directions because the accused was pulling a
horse and walking hurriedly. It seems therefore that P.W.4 didn't
pay any attention whether the accused was carrying anything.
The admitted medical report shows that the skull of the
deceased had suffered a communited depressed fracture that led to
intracranial haemorrhage. With regard to the external
appearance the post-mortem shows that there were bilateral burr hole
There were skin lacerations over the left skull.
From the admitted evidence of P.W.5 Rasilasi Tlaitlai
the deceased's son, it appears that the deceased
the day of the assault and died the following day
inHospital in Maseru.
P.W.4 who witnessed the assault from a distance and
identified the assailant indicated that when he first saw the
belabouring he was
some 4 km away. He could neither at that distance
identify the assailant nor the victim. But he took a short time to
scene because he was riding on a donkey which raced there
an he thus was able to recognise the accused when he came face to
with him some 200 paces away from where the deceased was lying.
The accused gave his evidence in which he denied having
assaulted the deceased on the day of the incident
or at all. He said it was his brother who had assaulted
the deceased. It was however not put to P.W.4 until after the latter
recalled that this was the case. It is thus a clear incident of
an after-thought in these proceedings.
In any event P.W.4 stated that he had witnessed this
assault and nothing had obscured his view from the assailant and the
he was approaching the scene till recognising,when he
reached it,who the assailant and the victim were.
The accused suggested that P.W.4 might have mistaken
the incident of movements wherein his brother Tiheli and the accused
raise the deceased for an assault on the deceased. But
P.W.4 had in his uncontroverted
evidence indicated that apart from the accused and the
deceased there wasn't anybody at the scene. He was able to see the
he described it because it lay in a horizontal plane
obstructed by no objects. Indeed it was never put to P.W.4 that the
brother was at the scene of the incident when P.W.4 cade
In fact the accused's version is self-contradictory
because he also said through questions put by his counsel and later
by the accused himself that by the time P.W.4 pitched on
the scene the deceased had long been removed from there.
I have no hesitation in rejecting the defence version as
false beyond reasonable doubt in this regard.
Much was made of the question of the accused's identity
by P.W.4. But the accused himself stated that he had seen this
at Matsoseng village although he didn't think the
witness would have had a lasting impression of him as in any case the
still a small boy growing up in the village. He went
further to say P.W.4 did at one stage live in this village.
P.W.4 on his part said he had seen the accused a month
back prior to the incident. P.W.4 knew the accused's brothers and is
to tell them apart.. The accused admits that although he
resembles his brothers in features the one in question i.e. Tiheli is
lighter. Thus it would seem that because P.W.4 in any event
said he is more familiar with the accused's brothers than he is with
the accused there is no reason why he can mistake the accused for any
Because, perhaps, of over-caution or unease that
investigating officers felt an identification parade was conducted
was asked if he could point out the man he had seen
molesting the deceased.
P.W.4 is said to have done this with ease. He
actually told me he identified the accused not by his
clothes but by the correspondence of the accused's facial appearance
mental picture of him since the day he saw him
immediately after the latter's assault on the deceased.
P.W.7 D/Sgt Mofolo gave her evidence as to how she
conducted the identification parade. I have no doubt that her
manner of conducting
the parade conforms with guidelines laid down inMohajane vs Rex C of A (CHI) No. 7 of 1984
The witness herself gave her evidence in a manner that
left me in no doubt that nothing in it could even remotely prejudice
in any manner.
Section 238(1) provides that
"any court may convict any person of any offence
alleged against him in the charge on the single evidence of any
I have no doubt that the evidence of P.W.4 as a single
witness who observed the occurrences at the scene was telling this
truth. He had no motive to lie. He was candid and frank
if rather annoying by having to time and again be reminded to speak
He bore the accused no grudge.
The accused on the other hand had some motive to assault
the deceased who had come there to protest and drive the accused's
from tresspassing in his field and impound them. The
deceased had previously impounded the accused's animals.
The accused cut a pathetic figure in the witness box by
relating a whole tissue of lies in the strands of which he was
I reject his evidence as not only improbable but as
demonstrably false beyond reasonable doubt. D.W.2 Tiheli Mabula's
nothing of substance to detract from the credible
evidence led for the crown on which I
D.W.2 satisfied me that P.W.4 knew him very well and
that there was no way he could mistake the accused for him. I am
D.W.2's testimony in support of this view because he
furnished the information that P.W.4 was at one time hired as a
Matsoseng and that is how he knew D.W.2 so well and his
brother Motlatsi. It is clear therefore although he didn't see the
that often he also knew him well enough not to mistake him
for any other person.
I have been referred on behalf of the accused to
CRI/T/3//86 R vs Mahase (unreported) by Sir Peter Allen.
But as I have indicated above the identification parade
was a superfluous exercise motivated by over-caution on the part of
because the evidence of P.W.4 was quite sufficient to
establish the identity of the accused.
The accused is accordingly convicted of murder as
My assessors agree.
Sentenced to 13 years' imprisonment.
J U D G E. 14th December, 1989.
For Crown : Mr Qhomane For Defence : Mr Fosa.
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