CRI\T\64\91 IN THE HIGH COURT OF LESOTHO
In the matter of:
LIAU LEPHEMA JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
12th day of February, 1992
The accused was charged with the crime of murder. It is
alleged in the indictment that on or about 21st January, 1990 at or
Ha Ramonaheng in the district of Berea, he unlawfully and
intentionally killed one Sekonyela Tlatsa.
The accused pleaded not guilty to this charge.
By agreement between Counsel appearing for the
parties the P.E. deposition of PW7 Litaba Makoro who has since died
was admitted in terms of section 227(1) of the Criminal
Evidence Act of 1981. This agreement was reached notwithstanding
that the section requires that there be proof on
oath that the
witness has died. This evidence was read into the recording machine
and made part of the record in this proceeding.
Mr. Peete for
the defence however wished it to be
placed on record that he was not able to cross-examine
this witness for the reason stated above.
Formal admissions were made in respect of the
depositions (at the preparatory examination) of PW2 Joel Malataliana
PW3 Dick Matsau
PW6 Dr. Goerttle Germanic who has since left Lesotho for
his home overseas. Thus his evidence also was admitted in terms of
227 of our C.P. & E.
PW8 'Mamosiuoa Kopu and PW9 the learned Magistrate Mrs.
The post mortem prepared by PW6 was handed in marked "A"
The confession made before and taken down by PW9 was
accepted to the extent only that it was made and not necessarily as
to the truth
of its contents.
It is proposed to retain the numbering given to
witnesses as they testified at the P,E.
The Court then proceeded to hear the evidence of PW5
No.3488 Detective Lance Sergeant Seboka who testified that at
the time of the event he was stationed at T.Y.. in the
C.I.D. section. He said he has been a policeman for fifteen years.
this witness was at his house at T.Y. It was about 10
p.m. that night when police who were on duty came to his place.
a report they gave him about a dead man PW5 went to the
Charge Office and collected Detective Trooper Matete with whom he
a vehicle for the scene at Ha Ramonaheng. At the scene they
found many people having already gathered there. The place was above
the road near the T.Y. Magistrate's Court estimated at about 50 paces
PW5 was shown the deceased who was lying near the Unique
Motor Spares garage. The body of the deceased was identified to PW5
Malupe Lesita. PW5 said he had known Malupe before but not
For a distance of 50 paces from the deceased PW5 saw a
trail of blood. He observed that the body was showing signs of
indicating that riguor mortis was setting in.
The trail of blood led from the place where the body was
lying to some spot 50 paces away.
PW5 testified that even though there was no moonlight he
was able to observe what he saw by aid of the headlights of
his vehicle and the light from Unique Motor Spares
The deceased was, according to PW5, lying on his back in
a pool of blood. On undressing the body PW5 discovered two wounds on
deceased's chest; flanking the sternum. They seemed to be open
wounds. There were other wounds on the back of the deceased. There
were six of them in pairs flanking the spinal cord. Though they were
stab wounds they were not open. The blood seemed to have come
the front chest wounds. The only blood from the back wounds seemed
to have coagulated before it could drip into the pool below
The body was taken to the TY Government mortuary. No
additional injuries were sustained by the body between the scene and
The following day PW5 went to inform the deceased's
relatives about the death. When he came back to office he found the
present there. After a few inquiries from the other
police as to the accused's business there PW5 called the accused,
himself to him and informed him that he was investigating
factors relating to the deceased's death. After giving the accused
necessary caution PW5 interrogated
him. The accused gave an explanation whereupon
arrangements were made to take him before a magistrate.
Under cross-examination PW5 said he had known the
accused for about 3 years. He had also discovered through
investigations he made
immediately around the scene that although he
did not know the deceased he nevertheless knew the deceased's
sisters. He testified
that he had never had trouble with the accused
before. PW5 said he didn't know that the accused had been stabbed
with a knife but
subsequently he came to know that.
Asked if he saw any wounds on the accused PW5 said if he
is not mistaken while already on bail the accused showed him a wound
chest sustained, as the accused is reported to have said, from
boys from the deceased's village. At this stage there was no mention
of the deceased as having taken part in that previous stabbing.
PW5 described the nature of the trail as consisting of
blood drops on the ground formed in short intervals from one another.
witness in answer to a question under cross-examination whether
he would say the drops were from wounds on the back stated that he
thought they could have been from the front wounds because those were
open. He further stated that he
would not deny the accused's story that the fight
started and ended at the gate to the Magistrate's Court, He conceded
that the trail
began at some distance other than the spot where the
stabbing occurred. The import of this to me is that the stabbing
the blood started showing on the ground some distance
away from where the stabbing occurred because the accused and the
were not stationery but running during the incident.
It was elicited from this witness that the Unique Motor
Spares garage lights by aid of which he was able to see the deceased
were strong and the nearest light to the deceased was about
three paces away.
He also conceded that because the deceased was lying on
his back one could not be certain whether the blood which had welled
him had exclusively emanated from the front wounds.
It was put to this witness that the accused admits
inflicting the front wounds. The witness further conceded that when
gave an explanation to him he referred to the front
wounds and denied any knowledge of the back wounds. He also said he
deny if the accused said he inflicted the
front wounds in self-defence. In fact he admitted this
as the version given to him by the accused during interrogation.
PW5 stated that the deceased was wearing a sweater which
even bore the stab punches opposite the chest and back wounds. He
released this sweater to the deceased's relatives before any
court could have had the opportunity to see it. This is indeed
and does not sit well on a police officer of PW5's
Asked if any investigations had been mounted to exclude
. possibility of the back wounds having been inflicted by any one
than the accused he pointed out that PW7 Litaba Makoro
indicated that he had been walking with the deceased and the deceased
not had any quarrel with anyone besides the accused at the time.
Mr. Peete elicited from PW5 that PW7 volunteered
the information supplied to PW5.
PW4 No. 6731 Detective Trooper Mosuhli's testimony is
that he knew the accused for a long time and that on 22nd January
1989 in the
morning he met the accused at the charge office at T.Y.
This witness found the accused there. The accused approached PW4 and
a knife Exhibit "1" to him as well as
giving him an explanation about Exhibit "1".
PW4 gave the accused a charge of murder because the man the accused
about had died.
PW4 under cross-examination said the accused said that
Exhibit "1" came from the person he had had a fight with.
that Exhibit "1" had blood on it.
In giving his evidence at the end of the Crown case the
accused said he knew the deceased and had met him at a farewell
Assumption High School. He even remembered an incident
during that occasion when he intervened in the deceased's favour when
deceased was fighting some boys there.
On 21-1-89 the accused said he was at a hotel drinking
liquor from 3 p.m. till 6 p.m. when his aunt or grandmother asked him
her home to Ha Ramonaheng. The accused complied and the
two took a road leading to Ha Ramonaheng via the shopping area.
Along the way they saw some boys besides the road.
These boys started hurling abuse at them. This group of
seemed to be following them as they headed for M.S.
the group resolved itself into two persons who
definitely made a
bee-line for the accused and his aunt while the balance
of the group remained behind. The accused didn't know these two
only observed that one of them was wearing a white hat
whom he later recognised as Sekonyela Tlatsa the deceased.
The accused and his aunt decided to go to Mr. Mokhali's
home to seek protection against possible attack by these people who
them. Unfortunately Mr. Mokhali was not able to spare
any moments for such help as was requested because he Was busy
to his customers.
The accused testified that he had had previous problems
with T.Y. boys. On 12-5-88 when going out from the T.Y. stadium he
by some of them near Petrose's home where he was stabbed
under his left arm-pit. The Court was shown an old scar in support
Immediately after the accused and his aunt had come and
settled in Mokhali's home for a while the man with a white hat came
the accused and his aunt left. But along the way they saw
the same pair that they had seen earlier. This time the pair were in
front of Alpha Motors. The deceased said
"hey you ram from Lithabaneng what do you think you
are. Stop there".
In this regard the accused denies the late Litaba
Makoro's evidence at P.E. that the deceased addressing
himself to the accused's aunt said
"young lady do you hear I am talking to you".
He denies PW7's testimony that the accused is said to
have said to the deceased
"you boys of Ha Ratsiu you look down upon people".
The accused says the deceased grabbed hold of him. He
admits that PW7 grabbed hold of the deceased when the deceased seemed
on causing trouble to the accused.
The accused's version goes further to show that the
deceased pulled away from PW7 and came at him again and at the same
time PW7 came
to the accused too. The accused was quick to say PW7
never spoke addressing himself to the accused asking the latter not
the deceased for the deceased was drunk.
At this juncture the accused said they were near the
court's gate. He said at this point he could only see the roofing of
Motor Spares garage and not the place itself. He was not
certain if there are any lights at the Unique Motor Spares Garage.
his tale further to show that the deceased grabbed him and
"it seems you didn't quite feel when we.
they stabbed you last year"
Asked to repeat this he said
"it seems you didn't quite feel when we stabbed you
The accused said the deceased took out a knife. The
accused asked him why he was doing so as well as reminding him of the
when he intervened for the deceased at Assumption High
The accused denies PW7's evidence that he saw the
accused chase after the deceased for some 50 paces.
According to the accused the deceased grabbed hold of
his hand and the two of them struggled for possession of the knife
held by the
deceased. The accused says he managed to overpower the
deceased and dispossessed him of the knife. Thereafter, so the story
the accused tried to walk away but the deceased took a knife
from PW7 and tried to stab him. Then the accused, so he says, took
out the one he had placed in his pocket and stabbed the deceased in
self-defence. The accused said when he stabbed the deceased
latter kept coming at him. He further gives pungency to his story
that he was drunk as well as scared while stabbing the deceased.
He denies as untrue PW7's version that he asked the
accused "did you stab that roan?"
He further said the deceased fell down after being
stabbed, but rose and fled along the road leading to Unique Motor
He said when the deceased retreated thus he didn't
see any blood. He stresses that he knows nothing of the six wounds
on the deceased's
back and denies ever inflicting them. He denies
ever chasing the deceased. He however says he didn't know how he
two chest wounds. He stated that at the time of the
encounter with the deceased his aunt had run away.
The following day he went to report the incident to the
police. When he arrived at the police station on 22-1-89 he saw PW7
at him as he entered the charge office. He casts a sinister
motive at PW7 for the latter's failure to mention the insults hurled
at the accused and says this shows PW7 is concealing the truth.
Under cross-examination he said the impression he
of the two people following him and his aunt was that they had a
common sinister design against either of them or both him
He indicated that from Mokhali's the two people
following him and his aunt were between 8 to 10 paces
behind. He could see these were the very persons who had followed
At the stage when the group of boys insulted the accused
in particular; the two men following the accused and his aunt had not
But soon after passing this insolent group of boys the
two men followed the accused and his aunt; so the accused said under
In fact he said these two people consisting of
the 38 year old PW7 and the deceased came from this gang. The
accused said he is
21 years old though he looks 16. The accused said
knowing of his situation at T.Y. he was suspicious of these two
his foot steps.
The accused said apart from being suspicious by virtue
of the fact that these two came from the gang of boys who had
there was a further element of suspicion as to their
motive because they quickened their pace when accused and aunt
and slowed down when he and the aunt slowed down,
showing they didn't want to go past the people in front of them.
The accused said the two followers' intention became
manifest when the deceased insulted him saying
"hey you ram from Lithabaneng you think you are
Asked if the other man i.e. PW7 said anything the
accused said "only when deceased had grabbed me
What did PW7 say...? He pulled the deceased.
Didn't he perhaps ask deceased why deceased was
pestering you...? After the time deceased was grabbing me.
What did the deceased say....? He just pulled himself
from the unknown man.
Deceased didn't oblige when being pulled away from you
by the unknown man....? He didn't.
What did the unknown man do....? He let the deceased be
Naturally you realised he didn't associate himself
deceased's actions. He didn't even know who
you were....? I disagree for he let him be
whendeceased was fighting me.
But at the stage the unknown man restrained the deceased
you felt he was not that bad for he restrained your assailant from
Why not so....? Because when I got stabbed with a knife
one man had come to ask for tobacco from me while the 2nd one came to
Did the unknown man join deceased in harassing and
molesting you when separating deceased from you...? He did not join
Naturally you thought he was not that bad....? No
You still had the feeling that his motive is
It is significant from the above passage that the
accused despite manifest good actions by PW7 he would not give him
credit for anything.
This is partly because he disagrees with PW7' s
evidence which on material facts gives a story with a clear ring of
truth to it
as opposed to that of the accused which fails not only to
be reasonably possibly true but is beyond doubt false, and partly
he is obsessed with a paranoid fear and suspicion of anyone
he regards as a boy from T.Y. This would ;tend to provide a motive
Told that the deceased appeared drunk that day the
accused categorically denied that the deceased was drunk at all.
But the accused almost by accident mellowed down to
accept what seems to me to be the patent truth. This is how it went:
"When this unknown man restrained deceased what
did he say to deceased ? He said he should
let go of me.
Why....? Because I am walking with my wife.
This is what PW7 says at P.E. He only differs with you
in saying the deceased was speaking to the
woman You never said you Ratsiu boys look down
upon people ? I never"
It should be noted that earlier the accused had said
when restraining the deceased from him PW7 had kept quiet and never
But as shown above PW7 said what the
-16-accused at last but involuntarily credited him
as the truth.
No sooner has the accused manifested this involuntary
credit to PW7 than does he resort to his hitherto begrudging habit.
"PW7 says he said to you never mind this man he is
drunk...? He never.
You pick and choose. You admit what he said at one
stage and reject what he further said at the other. Why would PW7
say he asked
you not to mind
the deceased ? I don't know. May be to
How implicate you....? He never said.
Please give the reason he would implicate you....? I
The accused said he could not go away and leave his aunt
at the scene at the stage PW7 had pulled the deceased from him for he
they might rape his aunt.
He further attributed his failure to flee in a
situation which he perceived as either his life or
his aunt's to
the fact that he was drunk, having taken a nip of
what he termsBertrams and more than 12 cans of Castle beers.
The Court heard for the first time, when it was put to
the accused that his story is improbable in the sense that he having
so much drink could overpower a "sober" man who had
bent his mind on stabbing the accused who suffered not
even the slightest injury, that the accused also got injured in the
He mentioned that he had said the deceased had stabbed him
on his finger. But this is not borne by the record nor was it put to
the Crown witnesses by his Counsel who was so meticulous in his
handling and putting the defence case to them.
Mr, Peete sought to show that the back wounds
might have been inflicted by someone other than the accused either
before the encounter with
the accused or after. He seeks to support
this by relying on PW5's evidence that these wounds did not seem to
have bled. But the
suggestion of an unknown element which might be
responsible for the stabbing at the back is defied by PW7's testimony
which is acceptable
that the accused following after the deceased in
a chase seemed to be lowering his hand in a hitting motion at the
should also be taken of the fact that these back
injuries were not deep thus it would seem their lack of depth
version that the blows were inflicted when the
deceased was running away. Thus it would not be farfetched to infer
of the distance the deceased was trying to put between
his body and the knife point the accused was failing to achieve the
proportionate thrust of his knife into the deceased's back.
the suggestion that deceased already had wounds at the back when he
came to the scene is merely speculative and conjectural.
The theory that the wounds at the back were inflicted by
some other person than the accused after the stabbing is negated by
presence at the scene after travelling a short distance
i.e. 50 paces by PW7 who makes no mention of anybody being within the
except the accused whom he asked if he had stabbed that man.
Thus the evidential burden shifts to the defence if they suggest
came later to inflict the back wounds.
The accused denied that it is only because PW7 has died
that he says the deceased got the knife from him in order to attack
the second time round.
The accused was referred to paragraph 7 in
where he had made a sworn statement when applying
for bail in respect of the instant matter. There he
wasconfronted with his own version as at the time :-
" 'Two of the gangsters came out insulting me'.
Before this Court you said only one did so....? Yes.
How do you reconcile these ? Some do reconcile
Did the unknown man intervene in support of the
But at paragraph 8 of your affidavit you said the
unknown man intervened in his aid....? I must have been confused. I
was new in
Court at the time.
But events were relatively fresh in your mind....? Yes.
But I was new in Court.
You were not in Court but your lawyer must have been to
see you in prison to get your story....? The lawyer didn't come. My
lawyer was Mr. Phoofolo. He was prevented from applying for
bail. Then the case was taken by Mr. Monyako who never came.
At paragraph 9 you said you stabbed him 2 or 3 times on
the body. Am I to say you don't know how many times
stabbed him ? I don't. But I am not saying
don't know how many times I stabbed.
But it appears in your sworn statement i.e. 2 or
3times ? I don't agree.
Court: What you said there under oath couldn't
have been true you mean....? It is not true.
How could you be untruthful under oath at thatstage ?
The accused avoided facing the question that the wounds
at the back are consistent with PW7's version that he saw the accused
a knife and stab the deceased twice before the two fell out of
PW7's vision, by saying he didn't chase the deceased.
The bizarrerie in the accused's story which lacks local
colour is heightened by the following text:
"The man fell down, rose and ran away....? yes
What became of him...? I don't know.
Explain then who could have inflicted these other
six stab wounds at the back ? He may have come
already having them or he was stabbed afterwards. The
scene consisted of you, the deceased, your aunt and the unknown man.
the unknown man could not have stabbed him....? I don't know.
You run way from this point because you know you
stabbed him when helpless and drunk ? He was still
Meaning then you managed to overcome him because
had six other wounds....? I am not saying that".
DW2 'Marefiloe Lephema gave evidence largely supporting
the accused. Like the accused she was bent on evading questions.
that only one of the two men following her and the
accused was concentrating on the accused she was hard put to it to
say why she
ran away yet she was not the centre of attraction. Hence
the suggestion to her by the Crown that she ran away because the
according to PW7, was addressing himself to her, and
according to the Crown this was consistent with DW2's flight from the
But DW2 sought to evade this question by saying she was
"You ran away for you were scared....? Yes.
Who had scared you ? Two people following us.
At what stage ? When they held accused.
Did they both hold him.....? Only one
What was the other doing....? Just standing.
The accused created an impression that two people
wereintent on assaulting him. You also keep saying they,they,
they. Do you want to give the sameimpression ? Yes.
How do you reconcile those two things ? If he
did not have the same intention as deceased he would
have separated him.
So according to you he associated himself withdeceased
Though he was doing nothing ? Yes
and saying nothing.....? Yes
Court: Does it surprise you that the accused says
man in fact pulled the deceased away from him.....?
Itsurprises me for I did not
Had this occurred would you have seen it ? I
would have seen it.
Why ? for I was a distance away.
C.C: Do you remember giving evidence at P.E ? yes
Do you remember saying the following at P.E.: one of
them said 'Hey you small boy wait for us there'. They came to us and
them caught hold of the one who held the accused and
asked why he was after the accused ? I remember
How do you reconcile this with what you saidtoday
that the other man stood there doingnothing ? I saw him doing
Do you realise what you tell this Court ismaterially
different from what you told Magistrateat P.E.. ? (silence)
You can't explain away this because you are not honest
with this Court. You want to conceal the fact that the 3rd man went
deceased from accused. You do so to give the impression
that the 3rd man was in the same mission with the deceased.
Do you remember PW7 saying deceased should leave
accused because accused is walking with his wife ?
I didn't hear that.
If it was said would you have heard it ? No
Why not ? He might have said it to accused.
Accused says he was with you when this was said .?
I have set out the above account of the accused's and
his witness' versions to highlight the contradictions and
therein. The accused at almost the
eleventh hour introduced the question of a 2nd knife
which he said the deceased got supplied with by PW7. However it was
to PW5 that this was going to be the accused's version. The
Court accordingly finds there was no such knife. If there was then
PW5 should have been taxed with it in the light of the fact that he
testified that he interrogated the accused and in his fairness
case for the accused conceded that he would not deny that the accused
fought in self-defence. Mr. Peete sought to make capital out
of this statement which obviously PW5 could not, basing himself on
first hand observation of events, either
truthfully admit or deny. I
accept the submission that the so called 2nd knife was a mere herring
across the trail.
The accused is unworthy of credit. Indeed no onus rests
on him to convince the Court of the truth of any explanation he
if the explanation is improbable the
Court is not to convict unless beyond doubt the version
is untrue. See R. vs Didford 1937 AD 370 at 373.
Hoffman's 3rd Edition at 409. It is important to
observe that the proposition contained therein should be viewed in
the light of
Miller vs Minister of Pensions (1947) 2 All E,R.
Medical evidence shows that death was due to a stab
wound in the left ventricle of the heart resulting in cardiac
failure. The doctor
indicated that there was no chance of
surviving such an injury. The doctor also observed a 1
cm stab wound on the left subclavicular region. There was another 5
wound on the left axilla. There were also six stab wounds (1
cm to 2 cm) in depth at the back of the deceased.
Because of the doctor's finding that one of the chest
wounds penetrated the chest wall and pierced the left part of the
heart it seems
to me impossible that a man having sustained such an
injury could stand up after falling and walk away. The accused's
story in that
regard must be rejected not only as improbable but as
false beyond doubt.
That being the case it is not difficult for the Court to
accept PW7's story that the accused while chasing the deceased until
two disappeared from his view was lowering and raising his hand
in a stabbing motion towards the deceased. This to my mind accounts
to any number of wounds which were found at the deceased's back. PW7
from a distance of 50 paces helped by the garage lights had
accused effect the movements referred to twice before the two
disappeared around the corner. There was no suggestion by
the accused stopped the chase before disappearing from his view. It
becomes irresistible to accept that over and above
the two wounds
that must have been inflicted when the accused's hand was seen being
lowered twice at the deceased who was running
away four more were
inflicted at the
deceased's back. Thus it would seem the fatal wound
which bled profusely along with the other observed on the deceased's
inflicted outside PW7's view,
I reject the accused's story as false that the deceased
obtained any knife from PW7 with which to attack him.
Account being taken of the chase for a considerable
length of distance and the many wounds inflicted on the upper body of
man, coupled with the lethal weapon used on a man who
is running away, though admittedly he had made a nuisance of himself
accused and his aunt, I find that the positive intent to
murder has been proved. Moreover the accused must subjectively have
that when injuries inflicted on the deceased's upper budy
with a lethal weapon like Exhibit "1" fatal consequences
result. Thus he acted recklessly whether such consequences
occurred or not. The accused was in no danger to life or thai: of
aunt when he chased after the deceased and delivered the first
two blows which PW7 said he saw him deliver. The accused is being
totally untruthful in suggesting that the only injuries that he
inflicted were inflicted at the scene where PW7 would have seen him
inflict them on the deceased's front. If such a thing had happened
no doubt PW7 would have mentioned it. It does PW7 great credit
he having been the deceased's friend never attempted to exaggerate
or claim that be actually saw the accused inflict the
two wounds to the front of the chest. It becomes obvious that the
to cast doubt as to the existence of good lighting at
the scene so as to make it appear that neither PW7 nor even another
and unbiased witness like PW5 could see as clearly by the
Unique Motor spares garage lights as they claimed. In this regard as
many other instances traversed in this case the accused is being
deliberately dishonest and only bent on trying to mislead this Court.
The accused is found guilty of murder on the basis of
My assessors agree,
In Extenuation the Court was asked to consider the
following factors which appeared proved on a balance of probabilities
The conviction was on basis of dolus
eventualis,which sometimes is extenuating
Lack of premeditation
4. Element of provocationand 5. Drunkenness
Accordingly the Court found that extenuating
circumstances exist in this case.
J U D G E
M I T I G A T I O N With regard to mitigation
the Court took into account
1. absence of previous convictions 2. immaturity of
Prospects of increase in his family as his wife
expects a second baby a round May this year.
The increased burden on the accused's shouldersimposed
by his father having deserted his ownfamily
Deceased having provided an element of provocationto
the accused's actions resulting in deceased'sdeath
Intake of drink having blurred accused's judgment
Absence of premeditation.
Acceptable evidence that the accused sought toavoid
confrontation as illustrated by his attemptto seek an escort to
protect him and DW2 atMokhali's. Subjectively speaking his
generalmistrust of T.Y. boys was not unfounded.
9. Show of remorse manifested by surrender to police.
Court accepts this but imposes a year's imprisonment. My assessors
a much higher sentence and I cannot say they are wrong.
J U D G E 12th February, 1992
For Crown : Mr. Thatsane For Defence: Mr. Peete
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