IN THE HIGH COURT OF LESOTHO In the
R E X
BUTI MAKOTOKO 1st Accused
SAJENE SELLO 2nd Accused
LIKOTSI NTS'ASA 3rd Accused
RAFUTHO MOTHOBI 4th Accused
KOMOTO MOTHOBI 5th Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 27th day of August, 1990.
The accused are charged with murder, it being alleged
that on the 4th day of November, 1987, and at or near Ngope Tsoeu in
of Maseru, the said accused did, one or each or all of
them unlawfully and intentionally kill Makhamoqa Kotelo.
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The accused pleaded not guilty.
The Crown has one eye-witness by the name of Litlhare
Jeke (P.W.1). Her evidence is that on the 3rd November, 1987 she had
party at her home. At this kind of a party
different kinds of liquor are sold. P.W.1 was assisted by the wife of
A1, 'Malethola and
one Nthabiseng in the selling of the liquor. The
party was attended by many people including the deceased and one
Thapelo who had
a illicit love affair with the wife of A1. At some
stage P.W.1 left her house and went to 'Mamothibe's place. On her way
A1 who asked her the whereabouts of his wife. She told him
that she was at her (P.W.1's) home. At about 4.00 p.m. or 5.00 p.m.
was returning to her house when she found A1 at the gate of her
yard. He asked her to tell his wife that they should go home.
She told A1's wife her message but the latter was not
ready to go because she was still selling beer as Nthabiseng, who was
to take over from her, was still suckling her baby. She
decided to get out of the house in order to report to A1 what his
said, but as soon as she appeared at the door A1 threw a
stone at her and hit her on the belly. She bent down holding her
her hands. A1 threw another stone and hit her on the
forehead. She fell back into the house and on Thapelo who sat near
He pushed her away and he and the deceased rushed out of
the house. Thapelo asked A1 why he was fighting or attacking the
the house. There was no answer. Immediately after that she
heard the cracking of sticks
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and when they came out one Mokharitsane had already
fallen down. They caught hold of the deceased and Thapelo and dragged
into the house. Not long after that stones started being
thrown at the house. The throwing of stones became so intense that
and windows were destroyed. Chairs and a radiogram were
broken. In an attempt to stop the stones from coming into the house
put a drum at the doorway. A4 and others were still in the house
and A4 had taken Nthabiseng's baby and was hiding himself at the
corner of the house.
After a long time the acting headman Tumo Jase arrived
and he ordered the people who were throwing stones to stop. They
P.W.1 says that she and other people got out. The deceased
and Thapelo remained in the house. Tumo suggested that they (deceased
and Thapelo) should be handcuffed and be taken to the chief's place.
A5 said it was useless to handcuff them because they were going
kill them. Tumo suggested in the alternative that the house should be
guarded for the whole night so that on the following morning
could be escorted to the chief's place. One 'Mamapoko said it was not
fair that they should be guarded before wounds were inflicted
them because a person they had assaulted, i.e. Makharitsane could die
anytime because of the wounds he sustained. Tumo gave
up and said
there was nothing he could do because the men had beaten him or were
not prepared to obey his orders. The men dug a big
hole on the wall
at the back of the house. P.W.I says that after that she heard that
the deceased and Thapelo had got out and there
was a cracking of
sticks near her house.
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She approached the spot where there was a cracking of
sticks. She stood about eight (8) or ten paces away and saw that the
was already lying on the ground. There was a group of about
six (6) men who were standing near him. She identified A1, A2 and A5.
Many people had gone down in pursuit of Thapelo. A5 saw her and
invited her to come so that they could kill her with him. A2 said
they should go and burn the blankets of the deceased and those of
Thapelo. As it was dark she did not see the blankets referred to.
said they should take a stick and poke it into the anus of the
deceased to see if he was still alive. She then saw when A2 took
big stone (Exhibit 4) and hit the head of the deceased with it. She
saw in the morning that the deceased's skull had been crushed.
night she slept at the home of one 'Matusetso because A5 had
threatened to beat her up. He had uttered the threatening words
they left the deceased saying they were going to burn his blankets.
Under cross-examination P.W.1 deposed that she did not
partake of any liquor that day because party was at her home end
remain sober throughout the party. She says that she
identified the accused, i.e. A1, A2 and A5 by their voices because it
and cloudy. However, when the clouds cleared she saw the
three accused and identified them well as his co-villagers. It was
the sky was clear that she saw when the A2 crushed deceased's
skull with a stone. She also saw that A1 was wearing the same clothes
he was wearing during the day.
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Tsele Makepe (P.W.3) testified that on the evening in
question a report was made to him that people were fighting at the
home of P.W.I.
When he arrived there he was briefed by the acting
headman Tumo Jase (P.W.4). He went to the forecourt and talked to the
were alleged to be in the house. As he was speaking A2
said he was going into the house to handcuff those people. As soon as
he was struck with a stick on the head. He staggered out
and collided with the walls of the house. He (P.W.3) caught hold of
and led him away from the house. His head was covered with blood.
He suggested that torches should be found so that they could light
through the door and the hole at the back of the house. The plan
worked because when he lit through the hole the deceased and Thapelo
came out through the door. When he came to the front of the house he
saw a group of about six (6) near the flat-roof house; the others
were chasing another person and he joined in the chase. After they
had failed to catch that man he returned to P.W.1's place and
A1 coming out of P.W.1's house carrying a sling bag. He (A1) said it
was his bag which his wife took away when she ran away
with the devil
they had killed. P.W.3 asked him whether they had already killed a
person. A1 did not answer that question. From there
he went to his
home because he did not want to associate with people who had already
killed a person.
On the following morning he returned to the scene of the
fight and found A1 and A2. A1 expressed his sorrow that an innocent
been killed while the culprit had gone scot-free.
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The evidence of the acting headman Tumo Jase (P.W.4)
does not carry the Crown case any further regarding the identity of
of the deceased. He arrived at the scene of the fighting
and found that there was commotion and disorderliness. He succeeded
the throwing of stones at the house. A5 and others were
saying Mokhiritsane had been assaulted so severely that he could die
moment and that was the reason why they wanted the deceased and
Thapelo to get out of the house. He confirms that after A2 was struck
with a stick on the head he accompanied him to the gate and ordered
him to go home. He also joined the people who were chasing Thapelo
but they failed to catch him. When they returned to the scene of the
fight he found that the deceased had been killed. His skull
The post-mortem examination report signed by Dr. E.N.
Tlale was handed in by consent of the defence. The cause of death is
as being head injuries. The following injuries were observed:
Fractures of mandible left side, left temporal, mastoid, parietal and
occiputal bones. Brain tissue was mixed with bone fragments.
The defence of A1 is complete denial of what the Crown
witnesses have said about him. He admits that he was present at the
P.W.1 when the fighting started. He was standing at the gate
waiting for his wife so that they could go home but in vain because
his wife refused to come out of the house. After the arrival of the
acting headman his wife came out with the
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others and she ran away towards her maiden home. He
Having failed to catch her he returned to the scene of
the fighting and found that deceased had already died. The acting
all the men to guard the dead body until the
following morning. He denies that he took part in the killing of the
deceased; he also
denies that he took part in the throwing of stones.
A2 testified that he went to P.W.1's place because an
alarm had been raised that there were people who were fighting and
of the chief were that those people must be
arrested. A short while after his arrival there he attempted to go
into the house but
was struck on the head with sticks by the deceased
and Thapelo. After that he went to his home and never returned to the
P.W.1. He denies that he crushed deceased's head with Exhibit
4. He denies that he uttered the words attributed to him by P.W.1.
A5's defence is a complete denial of the Crown's
evidence against him. The reason why he went to the scene of the
crime was that he
heard a lot of noise coming from that area. On his
arrival there people started running down the slope. He joined them
was under the impression that they were running away from
something. He later learned that they were in fact chasing a person.
their return from pursuing that person the chief instructed all
the men to guard the dead body of the deceased He denies the evidence
of the Crown that he made the utterances attributed to him by P.W.1
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The defence closed its case without calling A3 and A4 to
I have already stated above that there is only one
eye-witness. The other witnesses purport to corroborate her by
referring to certain
utterances made by some of the accused either
during or after the commotion and disorderliness. Section 238 (1) of
the Criminal Procedure
and Evidence Act 1981 provides that any court
may convict any person of any offence alleged against him in the
charge on the single
evidence of any competent and credible witness.
The most important words in the above section are competent and
Relying on the abovementioned section, Miss
Moruthoane, Crown Counsel, submitted that A1, A2 and A5 were
implicated by P.W.I who had a good knowledge of the voices of the
she lived in the same village with them. She also saw
the accused during the interval when the moon was not covered by the
A1 is implicated by P.W.3. She submitted that the question of
mistaken identity does not arise in the present case.
It is trite law that 'even where the witness is honest
the possibility of a mistake in identifying the accused, where
in issue, demands that the greatest circumspection should
be employed in considering the identification (R. v. Hlatywayo,
1953 (1) P.H., H74). The Court should carefully consider the evidence
- the positive assurance of identity by
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an honest witness is not sufficient. Where the light was
relatively poor at the locus in quo, and the witness had
relatively little opportunity for careful observation and the
witness was in a state of shock then the
possibilities for mistake
are too great to justify a conviction'. (R. v. Thulo, 1958 (1)
P.H. H90 (A.D.). See also Swift's Law of Criminal Procedure, 2nd
edition by Harcourt at p. 476.
In the South African Law of Evidence by Hoffmann, 1st
edition at p.25 the law is stated as follows:
"The accuracy of a witness' observation depends
first, of course, upon his eyesight. Second, it will be affected by
in which he saw the person in question; the state
of the light, how far away he was, whether he was able to see him
from an advantageous
position, how long he had him under
In the instant case the witness (P.W.1) was not
identifying strangers but people who lived in the same village with
her. That she
knew their voices very well was never challenged by the
defence. At one time AS was actually talking to her directly and
to kill her together with the deceased if she drew
nearer. Under those circumstances I am satisfied that P.W.1 was in a
to identify the accused by their voices. She was only
about eight (8) or ten paces from the accused.
In addition to identifying the accused by their voices
she saw the three accused assault the deceased. She explained that
it was dark and cloudy, there were times when the
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clouds cleared from the moon and the moonlight enabled
her to see the accused very well. I have no doubt that from the
about ten paces she was able to identify the three
accused. One may ask why she did not identify the two or three people
with the three accused. The answer is simple -we were told
that amongst the people who were at P.W.1's place there were some
from neighbouring villages.
P.W.1 did not just have a fleeting glance at the
accused. She observed them for some considerable time because she was
but standing and watching them and one of than even spoke
to her threatening to kill her with the deceased.
The defence criticized the evidence of P.W.1 on the
ground that she has a bias against the accused, particularly A1
is her brother. This is the man who he: run away with
A1's wife and on some occasions Thapelo and A1's wife used P.W.1's
as a meeting place. This allegation is based on
speculation and no evidence because even on that fateful day A1 and
and he asked her to call his wife. There was no hostility
between them. A1 was the first to show hostility towards P.W.1 by
her with stones when she attempted to report back to him. I
am satisfied that P.W.1 is and was never habouring any bias or
intent against any of the three accused. The impression I had
of her was that she was honest and truthful.
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It was argued that P.W.1 must have been in a state of
shock to such an extent that she could not make a proper
identification. I do
not think that she was in that kind of state of
shock; she was standing not far from the accused and watching what
they were doing.
The evidence of P.W.3 tends to corroborate the evidence
of P.W.1 in that A1 made a statement to P.W.3 which amounts to a
or admission that he and others had killed the deceased.
P.W.3 says that when he met A1 carrying a sling bag, the latter said:
is my bag which my wife took away with her when she ran
away with the devil we have killed." A1 was referring to the
who was lying dead not far from where they were. This
admission corroborates P.W.1's evidence that A1 and his companions
deceased. On the following morning A1 again expressed his
sorry that the innocent man had been killed instead of the culprit.
intention was to kill the man who had ran away with his wife.
A1's story cannot be reasonably possibly true. He could
not wait at the gate for his wife from 5.00 p.m. to 9.00 p.m. are
inactive when stones were being thrown at the house
against the very man who had deprived him of his wife. He had every
throw stones at Thapelo and the deceased and to kill them.
It seems to me that the whole uprising and disorderlinoss was caused
A1 who threw the first stone that hit P.W.1. Thapelo and the
deceased apparently angered the villagers when they assaulted
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A2's version that immediately after he was assaulted he
found a stick on the ground and used it to support himself and went
home, is a lie. He was never seen by anybody going to his
home. On the following morning he was found by P.W.3 at the scene of
crime. Being at the scene of the crime would not incriminate him
in anyway because the chief had instructed them to guard the dead
body until the police arrived. The making of a false statement may
throw an unfavourable light upon a fact previously neutral, which
then become an item of corroborative evidence (Corfield v. Hodgson(1966) 2 All E.R. 205).
As far as A5 is concerned he is implicated by P.W.1 and
his unruly behaviour just before the deceased was killed tenos to
P.W.1's evidence. He was one of those people who defied
the acting headman Tumo Jase by saying that because those people
house had severely assaulted Mokharitseng they must be
killed. His evidence that he did not do anything when he arrived at
of the crime is false and I have rejected it.
I come to the conclusion that A1, A2 and A5 had a common
purpose to kill the deceased because they were seen assaulting him
A2 crushed his head with Exhibit 4. They had the
requisite intent in the form of dolus eventualis.
For the reasons stated above I find A1, A2 and A5 guilty
of murder. A3 and A4 are found not guilty.
My Assessor agrees with me.
J.L. KHEOLA JUDGE
27th August, 1990.
The Court found the following as extenuating
There was no premeditation.
The intention proved was that known asdolus
There was an element of provocation inthat the
deceased and his colleagueThapelo resisted arrest and
assaultedA2 and one Mokharitsane.
SENTENCE:- In passing sentence the Court took
into consideration the following factors: all the accused are first
offender; there was an
element of provocation on the part of the
deceased and Thapelo. However, the offence is aggaravated by the fact
that the accused
defied the chief's orders and actually carried out
their acts almost in his presence. The Court cannot allow people to
take the law
in their own hands. Each accused person is sentenced to
seven (7) years' imprisonment.
28th August, 1990.
For the Crown - Miss Moruthoane
the Defence - Mr. Fosa and Mr. Lerotholi.
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