IN THE HIGH COURT OF LESOTHO In the
matter between:-R E X and
MOHLAKOLA MATSOAI 1st Accused
MATSOAI 2nd Accused
MALEFANE MATSOAI 3rd Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 17th day of October, 1990.
The accused are charged with the crime of murder; it
being alleged that on the 15th day of November, 1987 and at or near
in the district of Berea, they each or other or all of
them unlawfully and intentionally killed Matsoai Matsoai. They
guilty to the charge.
The defence admitted the depositions made at the
preparatory examination by the following witnesses. 'Makatiso
who raised an alarm when the wife of the deceased
to her that her husband had been killed; Mochesela Ntisa
(P.W.2) whose evidence is to the effect that when he heard the alarm
down to the fields. He saw A2 leaving the dead body and he
was holding a black piece of timber stick (He identified the piece of
stick before Court as the one A2 was holding). He examined the dead
body and saw a wound on the head from which bones were protruding,
wound on the back of the head and a fractured arm. The field in
question belonged to the father of the deceased; but after his
it was used by the father of the accused. At the time of this
incident it had been ploughed by the deceased and he had planted
wheat which was being grazed by the cattle of the accused; Trooper
Lelala (P.W.6) who examined the dead body at the scene of the
and found several wounds on the head from one of which brain matter
was appearing, he found a piece of stick at the scene of
It was marked Exhibit "1"; Detective Trooper Ramone (P.W.7)
testified that the accused 1 came to Mapoteng Police
Station and gave
ham a sword and said that he had used it in the fighting. It was
marked Exhibit "2"; Kheola Matsoai (P.W.3)
body of the deceased to the doctor; Litaba Lekanyane (P.W.10)
convoyed A2 to the police station in his vehicle and
(P.W.11) is the medical practitioner who carried out a post-mortem
examination of the body of the deceased. He formed
the opinion that
death was due to severe head trauma with skull fracture and extensive
brain damage. There was a huge laceration
on the forehead with
clearly visible skull fracture and brain damage; open scalp wound on
the left side and above the left eyelid
and a fractured lower arm
with a laceration.
The first witness called by the Crown in this Court is
Tau Matsoai. He is the son of the deceased and he is eighteen years
accused are his paternal uncles and they are brothers. On
the morning of the 15th November, 1987 he was at his home when he saw
grazing on his father's field on which there was wheat which
had been planted by his father. A1 was herding the cattle. The
went to the father of the accused in order to report to him
that his son; was deliberately grazing cattle on his field. On his
he reported that the father of the accused had said that those
cattle were being looked after by men like himself. He and the
went to the field. On their arrival there the deceased
greeted A1 and immediately after that A2 and A3 arrived. The deceased
A1 what those cattle wanted there. A1 said there were weeds
(theepe) on the field and he wanted that the cattle should grace the
weeds so that he can plough the field. A3 said that A1 should leave
the deceased alone so that he could do what he wanted to do.
deceased said he was satisfied but A1 shouted "Attack!"
The accused attacked the deceased and hit him with their
weapons. A1 struck him with & sword, A2 struck him with a stick
hit him with a sword. (Tau identified Exhibit "1" as
part of A2's stick and Exhibit "2" as A1's sword). He ran
away because A2 hit him with a stick on the waist.
Under cross-examination Tau deposed that at the time
they saw the cattle grazing on his father's field his father was
ready to leave
for Kimberley where he worked. They did not take any
weapons when they went to the field because the intention of the
to impound those cattle. The deceased was wearing a
blanket and he (Tau) was sure that he was not hiding any sword under
because he saw him when he was putting it on. He denied
that Exhibit "2" belonged to the deceased. When he ran away
deceased had been hit three times. The stick of A2 broke when he
hit the deceased on the head with it. He denied that A1 had Exhibit
"1" and that the deceased was in a bad mood when he arrived
at the field. He denied that Exhibit "1" broke when
warded off a blow delivered by the deceased with Exhibit "2".
Tau estimated that the village is about 700 to 800 yards
from the field.
'Matau Matsoai (P.W.2) was at her home at about 8.30
a.m. on the 15th November, 1987. She was in the company of her
and their son Tau. They saw the cattle of Mojalefa
and Nako grazing on the field of the deceased on which wheat was
grown and they
were being herded by A1. The deceased went to the
father of the accused and to Nako to report to them what A1 was doing
to his field.
When he cage back he went down to the field with Tau.
She remained at home but she could see the field from her home. When
and Tau arrived at the field, A2 and A3 also arrived. She
then saw them fighting but she did not see how the fight starter.
The deceased fell down and she then tried to go down to
the field. She did not reach the field because on the way she met A3
a sword and he chased her.
The field in question is about 1 kilometre from her
home. She and the deceased saw and recognized A1 who was 1 kilometre
and that is why the deceased went to A1's father in order
to make a report.
P.M.3 'Makhotso Seotsanyana testified that she lives in
the same village with the accused. On the day in question she was at
when she saw the cattle of the father of A1 grazing wheat on
the field of the deceased. A1 was looking after them. She saw the
and his son (P.W.I) going to the field. At the same time she
saw A2 and A3 go to the same field. As she was far from the field
did not clearly see what was happening but she saw that they were
fighting. One person fell down and she saw that things were being
raised up in a manner indicating that they were hitting the person
who had fallen down.
Motjotjo Patsi (P.W.4) is the younger brother of the
father of the accused. The deceased is the son of his late brother
who was the owner of the field in question. After his
(Mohlakola's)death his fields (there are three of them) were
allocated to the
deceased by the family and the local chief confirmed
the family decision and formally allocated the fields to the
On the day the deceased was killed he received a report
as a result of which he took his stick and proceeded to the fields.
cattle and people on the field which is the subject matter of
these proceedings. A1 and A3 were holding shiny objects and were
in the direction of Letsoela's village. When he arrived at the
field the deceased was already dead and A2 was still looking after
the cattle. He was holding one stick and a piece of a broken stick
similar to Exhibit "1". He testified that the accused
killers and killed the deceased because he saw them leave the
deceased. He was about two hundred or three hundred yards away
he saw them.
He admitted that during the lifetime of Mohlakola the
field in question used to be ploughed by the father of the accused.
he did so under the system of sharing with Mohlakola who was
the owner of the field.
A1 testified that on the 15th November, 1987 he was
herding his cattle on the field in question on which there was no
wheat but wild
weeds. The deceased and his son (P.W.1) arrived. The
former was very angry and asked him what he (accused) intended to do.
he could answer that question the deceased struck at him
with a sword he was holding (he identified Exhibit 2 as that sword).
warded off that blow with his stick and immediately struck the
deceased on the arm with his stick. As a result of that blow the
fell on the ground. He (accused) took the sword and struck the
deceased on the head with it till he fell down. After he had fallen
down he never assaulted him again . A2 and A3 were not there at all
and he alone fought with the deceased.
Regarding the field A1 says that it was being ploughed
by his father since his (accused's) childhood. It never belonged to
of the deceased.
A2's version is that he regained at home when A1 took
out the cattle to graze. A long tics after that he went down to the
met A1 near the river. A1 was carrying a black sword and a
piece of a stick. A2 says that he drove the cattle left by A1 and
reached the field where they had been grazing. He denies that
he chased P.W.I.
A3 testified that on the morning in qeustion he was on
his way to work in the Republic of South Africa when he met A1 near
The latter was holding a sword and a broken piece of
stick; he (A1) reported to him that he had clashed with the deceased
father's field. A3 denies that he ever participated in the
fight between A1 and the deceased.
The accused are implicated in the murder of the deceased
by four Crown witnesses. P.W.1 was at the field with the deceased and
what happened. According to him all the accused hit the deceased
on the head with their respective weapons. He is corroborated by
mother, P.W.2 who, though she was about one kilometre away, saw that
there was a fight leading to her husband falling down. She
down to the field but failed to reach it because on the way she met
A3 who chased her away with a sword in his hand. I agree
criticism of her evidence on the ground that she was a little bit too
far to see exactly what happened at the field. She
confessed that she
did not see how the fight started but saw that there was a fight
after A2 and A3 had arrived.
It is also correct that the evidence of P.W.1 and P.W.2
should be approached with caution because they are closely related to
deceased and have been directly affected by his death. The
impression I had of the two witnesses was that they were honest and
witnesses. P.W.I admitted that as soon as the fight started
he ran away and does not claim to have seen all that happened. In the
same way P.W.2 does not claim to have seen what each of the accused
did to her husband. She could not have seen clearly what happened
because she was a little bit too far. In any case the evidence of
P.W.1 and P.W.2 is corroborated by P.W.3 and P.W.4 who saw what
happened. P.M.3 saw A2 and A3 .. leave the village. They joined their
brother who was herding cattle on deceased's field. From her
could not see what was happening except that those people on the
field were fighting and one of them fell down; the others
up. All she could see was that they were raising up their arms and
hitting the one who had fallen down. P.W.3 impressed
me as being an
honest witness because she made no attempt to claim to have seen more
than she did.
P.W.4 is the paternal uncle of the accused and, like all
the other Crown witnesses, has never had any quarrel with the
have been on very good and cordial terms with him. In
other words no reason was suggested why he could falsely implicate
in this serious crime. He did not see the fight but when
he appeared at the scene he saw A1 and A3 leaving the deceased who
down. They were holding shiny objects
and going in the direction of Letsoela's village. The
question one may asked is: if the A3 was not involved in the fight
why was he
holding a shiny object and accompanying A1? The only
reasonable inference to be drawn from his conduct is that he was
from the scene of the crime because he had participated
in the murder of the deceased. A3 boarded a vehicle with A1 and never
to the scene of the crime. He alleges that he did not go to
the scene of the crime because he was afraid as A1 had told him that
the deceased bad died. It seems to me that was the very reason why he
had to go to the field to see and help his cousin who had been
by his own elder brother. He is a man of about twenty-five years of
age and must have seen dead bodies many times and there
was no reason
why he was allegedly afraid of seeing the corpse of his own cousin.
The real reason was that he was running away.
A2 is also implicated by his own uncle who, when
arriving at the scene of the crime, found him holding a full stick
and a piece of
a broken stick similar to Exhibit 1. P.W.4 says that
because A2 was holding those weapons he regarded him as a killer. His
is to some extent corroborated by P.W.1, P.W.2 and P.W.3
that he participated in the murder of the deceased.
A1 has raised the defence of self-defence by admitting
that he alone caused all the injuries which caused the death of the
in the manner described above in the summary of his
The law governing self-defence has been stated in a
number of cases as follows:-
In R. v. Attwood, 1946 (1) A.D. 331 at p. 340
Watermeyer, C.J. said:-
"The accused would not have been entitled to an
acquittal on the ground that he was acting in self-defence unless it
as a reasonable possibility on the evidence that accused had
been unlawfully attacked and had reasonable grounds for thinking that
he was in danger of death or serious injury, that the means of
self-defence which he used were not excessive in relation to the
and that the means he used were only or least dangerous means
whereby he could have avoided the danger."
In Union Government (Minister of Railways &
Habours v. Buur, 1914 A.D. 273 at p. 286, Innes, J.A. (as
he then was) said:-
"Men faced in moments of crisis with a choice of
alternatives are not to be judged as if they had had both time and
to weigh the pros and cons. Allowance must be made for
the circumstances of their position."
Although this was a civil case dealing with negligence,
the principles stated above were said to be applicable in criminal
Holmes, A.J.A., in R.v.. Patel, 1959 (3) S.A. 121
(A.D.) at p. 123.
It is trite law that where the accused exceeded the
bounds of reasonable self-defence and killed his assailant he may be
of culpable homicide despite the fact that the killing
was intentional (See R.v. Koming, 1953 (3) S.A. 220 (T) at pp.
232-3). However, if the excess is immoderate a verdict of murder will
be returned (See R. v. Krull, 1959 (3) S.A. 393 (A.D.) at p.
In the present case even if the evidence of the A1 were
to be believed he would still be found guilty of murder because he
exceeded the bounds of reasonable self-defence. In his
own words he says that when the encounter started the deceased
blow with a sword. He (A1) warded off that blow with his
stick and immediately struck back at the deceased hitting him on the
arm and causing the sword to fall from the deceased's hand. He
(A1) took the sword and struck the deceased on the head until he fell
down. He does not remember how many times he struck him.
According to medical evidence the deceased had three
wounds on the head and a fracture of the lower arm. The injuries
that after disarming the deceased and taking his
sword the accused viciously attacked him causing very serious
injuries. At the time
he did so his life was no longer in any danger
because the deceased was disarmed. However, A1's story has been
rejected by this Court.
It is a lie. He was seen by several Crown
witnesses when he attacked the deceased with his own brothers. There
is overwhelming evidence
that there was
wheat growing on that field. His belligerent conduct of
destroying that wheat by grazing it with his cattle is a clear
that he was determined to cause trouble. The fact that as
soon as the deceased and his son arrived at the field, A2 and A3 also
is a clear proof that the whole thing was planned in advance.
The evidence of the Crown, which I have believed, is
that the first blow delivered by the A1 was so severe that it caused
to fall down. The rest of the injuries were inflicted
after he had fallen down and were inflicted by the three accused. I
that although three of the Crown witnesses were about one
kilometre away they could and did see that there was a fight because
saw when one person fell down and the others hit him with
Mr. Snyman, attorney for the accused, submitted
that on fateful day in question the deceased became aware that A'1
was in his field where the
cattle were grazing. The deceased was on
his way to work and did not have much time. He first visited two
other people and then went
down to A1 with the specific intention of
fighting or killing him because of the fact that he was alegedly
grazing in his field.
I do not agree that the deceased went there
with one thing in his mind, i.e. to fight or kill the accused. There
evidence that there was wheat growing on that field.
It had been planted by the deceased. It was only a normal and natural
by the deceased to go to the field to investigate and to
find out why the A1 was deliberately and maliciously
destroying the wheat crop. As I pointed out during
arguments the deceased was entitled to go to the field and to impound
It was the accused who was bent on causing trouble by
maliciously and openly grazing the deceased's wheat crop. When the
asked him what the cattle were doing there, he said they
were grazing weeds because he wanted to plough the field. Thereafter
ordered his brothers to attack the deceased.
The evidence of Kholoang Letsoela (D.W.4) was to the
effect that some weeks before the present incident he had some
the deceased and that on the last of such encounters
the deceased was armed with a panga. He went on to say the deceased
was an aggressive
person. The deceased may have been an aggressive
person but in the present case A1 was the aggressor. He deliberately
deceased by grazing his wheat crop with animals.
However, the evidence which I have believed is that the accused were
and that the deceased did not own any panga; he was
not holding any panga when he went to the field.
I come to the conclusion that the accused viciously
attacks:, the deceased and hit him on the head and arm with dangerous
and were reckless as to whether death resulted from their
acts or not.
1 accordingly find the accused guilty of murder.
17th October, 1990.
I have found that the accused had the intention commonly
known as dolus eventualis. In S.v. Sigwahla 1967 (4)
S.A. 566 (A.D.) the Appellate Division held that
"(a) Trial courts in their conspectus of possible
extenuating circumstances, should not overlook the fact (if it
that it is a case of dolus eventualis. (b) While it cannot
be said that this factor must necessarily be an extenuating
in many cases it may well be so, either alone or
together with other factors, depending on the particular facts of the
I have , also found that there was a dispute about the
field in question and that the accused persons were not happy that
had been using the field for a long time it should
suddenly be allocated to the deceased.
I find that there are extenuating circumstances.
In passing sentence I took into account the personal
circumstances of the accused and the fact that they are first
offenders. I also
took into account that the accused took the law
into their own hands and completely ignored lawful means to resolve
They decided to kill the deceased in cold blood.
SENTENCE: Fourteen (14) years' imprisonment
Order: Exhibits are forfeited to the Crown and
are to be destroyed by the police.
For Crown ; Mr. Mokhobo For Accused ; Mr.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law