IN THE HIGH COURT OF LESOTHO In the matter of :
1. TSEPO KHONGOANA 2. MOIPONE LINEO
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
29th day of April, 1992
The first and second accused, father and son
respectively; are charged with the murder of Mashantela Ntlamelle who
succumbed to injuries
inflicted on him on 24th March 1989 at Photong
in the district of Butha Buthe.
The defence admitted the medical evidence as well as the
identity of the deceased. The Crown accepted these admissions.
the evidence of PW1 Doctor Angela Corea was read into
the recording machine and made part of the record in these
Despite the admission by the defence of the
establishment of the identity of the deceased by PW2 Pikitlane
Ntlamelle the latter's
evidence was led and no cross-examination
thereupon. PW2's evidence was that he and the deceased
were close relatives, one being the son of the other's paternal
PW2 in answer to a report he received concerning the
fate of the deceased set out for the latter's home where he
discovered that the
deceased was lying dead in his house.
PW2 made a cursory examination of the deceased's body
whereupon he saw a wound on the deceased's head; another wound seen
by PW2 was
at the root of the deceased's neck. The next other wound
was on the right side of the deceased's thigh. However, after the
had passed and police had arrived PW2 observed two further
wounds on one of the deceased's shoulder blades at the back. Thus
concluded he had seen five wounds in all and he testified that no
further injuries were inflicted on the body between its conveyance
from the deceased's home to the mortuary where post mortem
examination was performed by PW1 the doctor.
In the opinion of PW1 stated in "Exhibit A" -
the post mortem report - death was due to haemutopneumo-thorax
resulting from a wound inflicted on the right of the
middle clavicular line around the second intercostal space.
The external appearance revealed 1 cm wound below the
clavicular region, 1 cm wound on the left of the neck,
two wounds on the right shoulder, a 7 cm wound on the right thigh,
and an open
wound on the right parietal region of the head.
The doctor has also indicated that the wounds on the
shoulder, neck and thigh only go to the muscles and resulted in no
to the blood vessels. The doctor observed a depressed
skull fracture on the right parietal region and that there was
nor subdural haematoma on the dura mater which
On the fateful night there was a stockvel held at
Malefetsane Chakela's home near deceased's home.
The 1st accused and the deceased were on friendly
neighbourly terms. The deceased's elder brother was however a good
friend of 1st
accused. The deceased had earlier gone to the stockvel
from which he later returned with one Mohapi Kahlolo.
PW5 'Mamahali Ntlamelle is the deceased's wife. She and
a boy Molefi Ntlamelle PW6 were in the house when they heard an
of angry words between the deceased and the 1st accused
outside. It was already dark and it had rained, patches of clouds
lingering in the sky.
It is common cause that neither PW5 nor PW6 witnessed
the start of the combat between deceased and accused 1.
However PW5 on hearing the disturbance outside detailed
PW6 to see what was happening outside. Following the report by PW6
wife came out and found accused 1 pinning the deceased
to the ground immediately below the window to her house. she observed
accused 1 was effecting stabbing motions towards various places
on the deceased's body.
She said when she tried to intervene accused 2 seized
her by the waist, felled her to the ground and throttled her.
this episode was not witnessed by PW6 yet it is said
to have lasted more than five minutes.
PW6 told the Court that accused, 2 was pinning the
deceased to the ground while accused 1 was effecting stabbing
movements at the
deceased's body. However PW5 who came immediately
after the call by PW6 did not see accused 2 pinning the deceased to
The first accused's story is that he was hit by the
deceased who felled him to the ground. Mohapi who could have thrown
on the origin, the duration and the end of the event did
not give evidence in this Court. Attempts to secure his presence
-5-in this Court failed.
The final act alleged by PW5 supported by PW6 is that
when PW5 had managed to drag the deceased from where he had fallen
stabbed by accused 1 with a knife accused 1 came to the
door-way where the deceased was lying prostrate and stabbed him on
thigh. Accused 1 denies this. But I have no doubt that he
is being untruthful in this respect.
Attempts were made by counsel for the defence to
discredit PW5's evidence. But my understanding of her evidence does
her as a liar bent on deceiving the Court deliberately by
either exaggerating certain aspects of the case or withholding them
virtue of the fact that she is the deceased's wife. This view has
support from the fact that she readily conceded that there was
of noise at the stockvel. The 1st accused disapproved of this noise
and expressed his resentment by questioning the deceased
companion why they were making so much noise. The answer by the
deceased was that they were not making noise but enjoying
The 1st accused resented the fact that "a Mosotho" with
whom the deceased was walking said that he would show
him S.... .
Thereupon the deceased said the two should go and show each other
s.... elsewhere but not in his yard.
PW5 in her support of the 1st accused's story went
further to say she was in grave doubts whether she and her family
to have any sleep due to the noise emanating from the
place of the stockvel.
It was submitted that the two accused acted in concert
and therefore they should be held equally liable for the death of the
The problem with this submission consists in the fact that
even if the Crown evidence is true to the effect that accused 2 was
the deceased to the ground or preventing PW5 from intervening
for the deceased while accused 1 was inflicting stabbing blows at the
deceased, it was never put to accused 2 that he was aware that
accused 1 had a knife with which the deceased was being stabbed while
accused 2 was rendering the assistance one way or the other to the
accomplishment of the so-called common purpose.
The closest accused 2 would be guilty of if he was not
aware of the presence of the knife would be assault provided the
of PW6 on the issue was supported. As indicated
earlier it has not been so supported. Consequently it would not be
safe to convict
accused 2 of the offence charged or of any of the
competent verdicts that flow from it. It sounds true that accused 2
PW5. But the Crown did not charge him with the assault on
Despite his unimpressive story and no doubt concocted
tissue of lies he is given benefit of doubt acquitted and discharged.
As for accused 1 regarding the murder charge, his
counsel during addresses submitted that he is not guilty of murder or
at all. For the submission in the alternative the
defence counsel relied on the allegation just rejected in this
that generally a good case by the Crown is destroyed
by untruthful witnesses seeking to emboss an otherwise simple and
story. That may be so generally. But in this
particular case there is no element of such a thing.
To determine what offence if any the 1st accused is
guilty of the Court is enjoined to look into his state of mind.
There is nothing
in this proceeding to show that the weapon used on
the deceased was carried by the 1st accused for the purpose of
the deceased that day. It is common cause that
the deceased and he were on good neighbourly terms. The 1st accused
had taken liquor
even though not at the stockvel but earlier
The Crown submits that the allegation that accused 1 had
taken liquor is a mere red herring across the trail, and therefore
be rejected. I am unable to agree because if this accused
meant to lie and say he had taken liquor while he
had not he could easily have said he took the liquor
from the stockvel and that would have been possibly reasonably true
even if it
The Court is of the view that although this accused had
levelled vicious attack with a lethal weapon on the deceased he has
shown to have had a positive intention to murder. It is of
course false that this accused was dealt such a blow by the deceased
required medical attention which he was denied by the police and
prison warders. Thus even if this accused acted in self-defence
against the deceased initially plainly when observed inflicting
injuries on the deceased he was in no danger at all.
The Court is of the view that in effecting the wrongful
act this accused's mind was clouded by the intake of drink coupled
exchange of angry words and what might have happened between
him, the deceased and Mohapi before being seen by any of the
who saw only the portion of the assault leading to the end.
Accused 1 is acquitted of the capital offence but only
convicted of Culpable Homicide.
-9-My assessors agree.
JUDGE 27th April, 1992
Accused 1 is sentenced to 3 years' imprisonment of which
one is suspended for 2 years on condition that he be not convicted of
committed during the period of the suspension and of which
violence is an element.
JUDGE 29th April, 1992
For Crown : Mr. Lenono For Defence: Mr. Maqutu
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