IN THE HIGH COURT OF LESOTHO In the matter
and BOFIHLA MOTEMEKOANE
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 5th day of February, 1990
The accused is charged with murder. It is alleged that
upon or about the 27th day of February, 1988, and at or near Airport
in the district of Maseru the accused unlawfully and
intentionally killed Thamsanqa Sixishe (hereinafter referred to as
To this charge the accused pleaded not guilty.
The defence admitted the depositions of the following
witnesses: Dr. Macario Oliver (P.W.1), Tseliso Mahao (P.W.4), Trooper
(P.W.5), Nthomeng Majara (P.W.6) and Thozamile Sixishe
It is common cause that on the 27th February, 1988 the
accused stabbed the deceased on the base of neck on the left side
with a knife
- Exhibit 1. The wound was 3 cm. long and 6 cm.
deep. The jugular vessels were lacerated. Death was due to massive
haemorrhage due to laceration
of the jugular vessels. According to
the accused the stabbing took place in the course of self-defence.
It is common cause that on the day in question the
deceased and one Phineas Molise (P.W.2) went to Airport Hotel to
attend a musical
performance that was supposed to be held there on
that day. The accused and his companions went to Airport Hotel for
the same purpose.
When Phineas and the deceased arrived there they
were told that the festival had been cancelled.
Phineas testified that when they left Airport Hotel they
took the road leading to the stadium. Somewhere along the road they
the accused. He was fighting with one boy from Hlotse who was
apparently well known to the deceased. The accused had a brown okapi
knife with stars on the sides of . its handle. The deceased
intervened and tried to stop the fight-pleading with the accused not
to do such a thing. The boy from Hlotse left immediately after the
deceased had intervened. Phineas says that after the stopping
fight, he and the deceased proceeded towards the stadium and that the
accused and his companions followed them. However, under
cross-examination Phineas says that the accused and his companions
were ahead of them.
Before they reached the gate of the stadium the accused
told the deceased that he had made himself a "starring" and
was in a fighting mood because the deceased had
intervened in his (accused's) fight with the boy from Hlotse.
the accused was about to fight with the deceased,
Phineas says that he suddenly saw Samuel Sefefo (P.W.3) in his van
the road leading directly towards the gate of the
stadium from Mthembu's. He stopped the van and asked Samuel to carry
him and the
deceased to the bus stop because the accused wanted to
fight with the deceased. As he spoke to Samuel he was on the driver's
and was leaning against the van with his head in the cabin. The
deceased and the accused together with the other boys were standing
about eight paces away behind him.
After talking to Samuel he turned and saw accused clasp
his knife, put it into his pocket and leave the place. After that the
came to him and held him with his hands as if he was falling
on him. He noticed that blood was spurting from the deceased's left
shoulder like water from a pipe that has burst. The deceased was
carried to the hospital where he died on the same day. This witness
says that he did not hear when the deceased referred to the accused
and his companions as the "Young of Matlame' and that if
uttered such words he would have heard him.
Phineas denies that Exhibit 1 belonged to the deceased.
He alleges that he was in the house of the deceased that morning when
the latter dressed and he saw that he did not have any
knife in his pockets. He says that they met the deceased and his
at the gate of Airport Hotel and that they were following
the accused and his companions but they had no intention of fighting
the accused. He saw Exhibit 1 very well at the time the accused
was fighting with the boy from Hlotse. He saw that it was an okapi
knife with three stars. However when Exhibit 1 was examined in Court
it was found that it had seven stars - three big stars and four
Phineas admitted under cross-examination that he did not
see when accused stabbed the deceased and did not know the cause of
He did not see that there was a struggle between the
deceased and the accused before the former was stabbed; but he says
there had been a struggle behind him he would have heard
because the accused and the deceased were not far from him.
Samuel testified that when he came near the
stadium he was stopped by Phineas who asked him to carry them
to the bus stop because the accused wanted to fight with the
deceased. According to him Phineas was standing near the van on
driver's side but his head was not in the cabin. There were a number
of boys infront of his vehicle including the deceased and
accused. He did not look at Phineas but looked at the boys infront of
the vehicle about
whom Phineas was talking . They were about twelve paces
infront of his vehicle. He saw that the accused was talking but he
hear what he was saying.
While Phineas was still talking to him the deceased was
facing towards the vehicle and he (Samuel) saw when the accused took
brown okapi knife and stabbed the deceased with it on the left
shoulder and a lot of blood came out immediately. The deceased
several times before he took off his coat and put it on the
wound in an attempt to stop the bleeding but in vain. Samuel says
he sat in the vehicle until the deceased came to him and asked
him to take him to the hospital because the bleeding was too much.
The deceased tried three times to get into the buck but failed and
then lay down near the vehicle. He was eventually carried into
vehicle but died on the way to the hospital.
Samuel told the Court that the deceased was not doing
anything and his hands were in the pockets of his coat. When his
was drawn to the fact that at the preparatory examination
he said he did not see whether the . hands were in the pockets or
hanging on the sides, he denied having said so. But the
preparatory examination proceedings show that he said so.
Again when his attention was drawn to the fact that at
the preparatory examination he said he did not see the type of knife
held, but that he noticed that it was a knife, he said he saw
that it was an okapi knife.
In his defence the accused repeated what he had said in
his "confession" which was recorded by Miss Nthomeng Majara
- P.E.) which was admitted by the defence. The accused
testified that on the afternoon of the day in question he went to
Hotel with one Keke 'Moletsane who is his friend. They met
the deceased's group at the gate of Airport Motel and the deceased
to them: "The young of Matlama, there is no longer any
mucial performance." They immediately decided to leave, they
from the gate but the deceased and his companions followed them
down the road leading to the stadium. When they were about fifty
yards from the gate of the stadium he and Keke stopped and asked the
deceased and his companions what they wanted from them. The
said they were fighting. He (deceased) and his group kept on
advancing towards him. The deceased took out a knife from his
and they surrounded him and Keke. The deceased tried to stab him with
that knife but missed him.
The accused says that after the deceased had missed him
he moved back but was stopped by the deceased's companions who had
them. He then went to the deceased and held his righ:
wrist in an attempt to wrest the knife from him. A struggle ensued.
He finally took the knife from the deceased and stabbed
him on the left side of the neck because the deceased was still
him. He (accused) ran away with his friend immediately
after he had stabbed the deceased. He gave Exhibit 1 to Keke and
to keep it; he denies that he asked him to hide it. He went
to his home and reported on the same day that he had stabbed a person
with a knife. In the "confession" he said he did not report
because he was frightened. He reported on the following day
was told that police were looking for him.
Mr. Pheko, counsel for the defence, pointed out a
number of contradictions in the evidence of Phineas and Samuel
Sefefo, He also submitted
that the evidence given by Samuel in this
Court differs in material respects from the evidence he gave at the
The Court shall now consider the contradictions in the
evidence of the two Crown witnesses. It is Phineas's evidence that
went to Samuel's vehicle the deceased was still surrounded by
people and the accused was near him, but Samuel denies this. In my
view this is not a very material contradiction, if it is a
contradiction at all, because during the time that Phineas was moving
from the group of boys towards
Samuel's van, the deceased may have
changed his position. At the time Samuel saw him, the deceased was
already on the side of the
other boys and they were behind him.
Samuel cannot know where the deceased and the accused
before he came to the scene.
Another contradiction is that Phineas says that while he
was talking to Samuel his head was in the cabin and that the deceased
the accused were behind him. This is the reason why he did not
see when the accused stabbed the deceased. On the other hand Samuel
says that the boys were infront of his vehicle; he was not even
looking at Phineas as he spoke to him, but he was all the time
at the boys about whom Phineas was talking. But when he was
asked by the Court he said 'they were in the road and on the right
They were infront of me'. This statement seems to suggest that
there were other boys behind Phineas because if they were on the
side they must have been behind him. Be that as it may Phineas
was positive that the deceased and accused were behind him. Samuel
was also positive that the accused and the deceased were infront of
I tend to believe Samuel who appeared to be more
reliable than Phineas who was involved in the fight and frantically
went to Samuel
seeking help. His observation may not have been very
accurate. That his head was in the cabin when he spoke to Samuel is
The head of a driver of a van is usually so close to
the window that a person outside need not put his head through the
order to talk to him. It does not make sense why Phineas
had to do that. Even if he wanted to whisper to Samuel there was no
to do that. I believe the evidence of Samuel on this point. In
any case the position of his head when he spoke to Samuel is a veryminor point. What is important is whether the
accused and the deceased were infront of the vehicle or
on the right side of it. I have already said that I believe the
Samuel who is an independent witness who gave his
evidence in a more straightforward manner than Phineas.
I agree with Mr. Pheko that the evidence of
Samuel Sefefo before this Court differs to some extent to the
evidence he gave at the preparatory examination.
He previously said
he did not see the type of knife used by the accused in stabbing the
deceased. He now says he saw that it was
a brown okapi knife. He gave
his evidence in the magistrate's court in December, 1988 and in this
Court in October, 1989. He was
describing the events which took place
in February, 1988. In addition to the long interval between the dates
on which he gave his
evidence and the date of the events, there is a
possibility that he saw Exhibit 1 at the magistrate's court. I did
not have the impression
that the witness was deliberately telling the
Court a lie. It must be taken into consideration that he was giving
the events which took place long before he appeared
before the Courts.
Another example where Samuel contradicted himself is
that at the preparatory examination he said that when the deceased
his hands were in his pockets but he immediately
qualified that statement by saying he is not sure whether his hands
were in the
pockets or just hanging on his sides. Before this Court
he was positive that they were in the pockets of his ail - weather -
It is not clear why he is now sure and yet at a much
earlier date which was closer to the date of the occurence of these
was not sure.
It was also suggested that Samuel says the fighting took
place along the road from Mthembus and about thirty paces from the
near the gate of the stadium. On the other hand Phineas
says that the fight took place along the road running from Airport
and on the side of the stadium to the airport. He says that it
was before they came to the junction opposite the gate of the
This statement is attributed to Phineas wrongly. He never
said the fight took place before they came to the junction. What he
is that (and I quote his words from my notes):
"We went down and before we reached the gate of the
stadium accused said to deceased 'I think you have made yourself a
(or a boss)' (A starring is a person who knows a lot).
Accused and the boys were coming behind us. I tried to talk to the
and said that they should stop fighting because accused was
following the deceased."
There is nothing in the above statement to indicate that
the fight actually took place before the boys came to the junction.
one gets from the statement is that they were still
moving. The next thing Phineas refers to is the arrival of Samuel's
van but he
does not specifically mention the exact spot where Samuel
The version of the accused regarding the spot where the
stabbing took place is that they were about fifty paces from the
referred to above and they were at a junction of a gravel
road which leads into the village. He alleges that Samuel could not
seen them from where he had stopped his vehicle. He claims that
he was defending himself because the companions of the deceased
him and the deceased and the latter advanced towards him.
He lunged at him and tried to stab him with Exhibit 1 but missed him.
his so called confession the accused says that the deceased fell
down when the missed him. There is no mention of this in his evidence
before this Court. He (accused) went to the deceased and held his
right wrist in order to wrest the knife from him. A struggle ensued
till he managed to take the knife. He stabbed him on the left side of
the neck and ran away with his friend Keke, because the other
rushed at them.
I find the story of the accused to be most improbable
that the boys who were, according to him, on the side of the deceased
completely surrounded him and the deceased, did not
intervene when he overpowered him. He alleges that when the
towards him he moved back and collided with the
boys who were in the circle. It is unbelievable that after he had
they allowed him to escape without any resistence.
The truth seems to be that the boys who were in the
circle before Samuel arrived were on the side of the accused. I have
already found that when Samuel arrived the deceased was
no longer surrounded by any people; they were all behind him.
If Exhibit 1 belonged to the deceased, why did the
accused ask Keke to keep it? He says that he was not hiding it but
Keke to keep it. He does not explain why the knife could
not be safe in his custody. A reasonable man would have taken this
to his parents and told them what had happened. Again the
accused does not explain why he did not report to his parents that he
been involved in a fight with another boy and that he had stabbed
him. After all he ran away immediately after he stabbed the deceased
and did not know that his victim had died. What was he afraid of? He
alleges that he was defending himself but was afraid to tell
he also decided that the knife which was not his
property would not be safe in his custody.
I have formed the opinion that the accused intended to
hide Exhibit 1 when he gave it to Keke. He knew that he had done a
with it and wanted to distance himself from it.
The other part of the story of the accused which is most
improbable is the description of the manner in which he wrested theknife from the deceased. He alleges that the deceased was holding
the handle of the knife which is about five centimetres
long. The hand of the deceased must have covered almost the whole of
with less that two centimetres sticking out on the
thumb-side of his hand. It seems to me that it would be impossible
for the accused
to have a good grip of that small part of the handle
and to pull the knife out of the hand of the deceased. Even if by
magic he had
succeeded in gripping that small part of the handle the
blade would have cut deceased's palm. There was no such injury
to medical evidence.
1 have formed the opinion that the accused is not
telling the truth that there was a struggle between himself and the
he ellegedly restled the knife from him. Samuel saw
that there was no such struggle before the stabbing of the deceased.
to the evidence of the Crown the accused already had that
knife when he earlier fought with the boy from Hlotse.
According to the Crown the cause of the fight between
the accused and the deceased was the intervention of the deceased in
between the accused and the Hlotse boy. The accused was not
very happy about that and accused him of making himself a "starring"
(boss). On the other hand the accused says that the cause of the
fight was that the deceased referred to them as the young of Matlama
and followed them saying that he wanted to fight with them. He
finally attacked the accused with a knife. It is hard to believe that
the deceased could call ' the accused and Keke the young of Matlama
and then decide to fight with them for
no apparent reason. On the other hand it is
understandable why the accused could be angry with the deceased. The
latter had intervened
in a fight that was no concern of his and that
way he had 'got too big for his boots' and had to be taught a lesson.
Mr. Pheko referred to the recent case of S. v.
jaffer, 1988 (2) S.A. 84 in which the criminal standard of proof
was re-stated. At page 88 Tebbutt, J. stated the law in the following
"It is, of course, always permissible to consider
the probabilities of a case when deciding whether an accused's story
possibly be true (see S v Singh 1975 (1) SA 227 (N); S
v Munyai 1986 (4) SA 712 (V) at 716B). The story may be so
that it cannot reasonably be true. It is not,
however, the correct approach in a criminal case to weigh. up the
particularly where it is given by a single witness,
against the version of the accused and then to accept or reject one
or the other
on the probabilities. This approach was considered
by Van der Spuy AJ in S v Munyai (supra) where he said at 715G:
"There is no room for balancing the two versions,
i.e. the State's case against the accused's case and to act on
Dealing with Singh's case Van der Spuy aJ., with whom
Klopper ACJ concurred, said that the, proper approach was for a court
its mind not only to the merits and demerits of the State
and the defence witnesses, but also to the probabilities of the case.
was to ascertain if the accused's version was so improbable as
not reasonably to be true-This, however, did not mean a departure
from the test as laid down in R v Difford 1937 AD 370 at 373 that,
even if an accused's explanation to imprbbable, the court is not
entitled to convict unless it is satisfied not only that the
explanation is improbable but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
being true, then he is entitled his acquittal."
I have considered the merits and the demerits of both
the Crown and the defence witnesses and have come to the conclusion
the story of the defence is not only improbable but beyond any
reasonable doubt it is false.
For the reasons stated above I find the accoused guilty
My assessors agree.
J.L. KHEOLA JUDGE
5th February, 1990.
At the time of the commission of the offence the accused
was a youth of eighteen (18) of age. It seems that our Courts might
youthfulness to be an extenuating circumstance (See R v
Jantjes, 1908 E.D.C. 382, R v Ndhlovu, 1954 (1) S.A. 455.
(A.D.) at p.459) but the general rule is normally to require some
factor in addition to youthfulness. In the present
additional factor is the absence of premeditation.
The defence counsel pointed out that in convicting the
accused the Court did not indicate whether or not there was
I agree with the criticism. If I may be allowed to
correct the omission, this was a case of dolus eventualis and
not of dolus directus. The fact that this is a case of doluseventualis is an extenuating circumstance (See S v
Siqwahla, 1967 (4) S.A. 566 (A.D.) at p. 569; S v Arnold,
1965 (2) SA 215 (C) at pp 219 et seq.).
I find that there were extenuating circumstances and the
accused is found guilty of murder with extenuating circumstances.,
Although it is not a good idea to sentence a youth, who
is a first offender, to imprisonment without the option of a fine,
are sometimes under an obligation to do so because of the
seriousness of the offence and in order to pass a
that will be deterrent to others. The cases of murder
a knife has been used are prevalent throughout the
it is the duty of our courts to pass sentences that will
have a deterrent effect.
The accused is sentenced to five (5) years'
J.L. KHEOLA JUDGE
For Crown : Miss Moruthoane For Defence : Mr.
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