IN THE HIGH COURT OF LESOTHO In the matter of :
TEKE ANDREW MOEKETSI JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on on
the 21st day of August, 1992
The accused pleaded not guilty to the crime of murder
allegedly committed on 17th October 1990 at Lebung village in the
Thaba-Tseka where the victim Kompi Shoaqa died.
The defence admitted the evidence led at P.E. in respect
PW2 - Mahasele
PW3 - Kanono Kanono
PW5 - 'Mamusa Kanono
PW6 - 'Manthabiseng Tatolo
PW8 - Monaheng Khomari and
PW10 - Trooper Matete
The crown accepted these admissions and they were
accordingly read into the recording machine and thus made part of the
The post-mortem report Exhibit A was also incorporated
the instant proceedings in terms of Section 223(7) of
the Criminal Procedure and Evidence Act 1981.
The deceased who was at the time still alive was
discovered some fifty or so paces away from the home of PW4
'Malebusa. When so discovered
the deceased was unable to walk. He
appeared to have sustained two injuries on the head. One was an open
wound to the left of the
forehead and was bleeding the other was a
swollen wound above the left ear.
However the untested findings recorded by the doctor who
didn't even give evidence in the Court below make no such distinct
as have been testified to by other crown witnesses. As
to external appearances that doctor merely refers to scalp wound 2 or
laceration in frontal area (L). I take it (L) stands forleft. He further refers to depressed skull fracture on the
parietal area midline with cracks to temporal areas bilaterally tempo
With Epidural haematoma and brain compression and subdural
The cause of death is recorded as fracture of the skull
with epidural and subdural haematoma.
It is common cause that the accused had come to live at
the home of 'Mathoola at Sehonghong Ha Clark more than ten kilometres
-3-away from the accused's home.
PW7 is a village nurse working in a local clinic next to
an airstrip in her village. She testified that she discovered a
stick Exhibit "1" amongst the accused's
blankets in the hut used by her as a kitchen and allotted to the
accused as a living
house and bedroom. She accordingly comes daily
into this hut for purposes of cooking and sweeping. Thus she also
the stick on this day, as against any previous days
when she had occasion to handle and see, it had a crack which she
showed to the
She had been summoned to her work where on arrival she
found the deceased lying in a wheelbarrow which apparently had been
convey him from the scene to the clinic. She cleaned the
deceased's wounds and had them dressed.
Police were sent for; and it is PW7's evidence that
before they arrived the stick had been removed from where she had
last seen it
among the blankets but placed behind the suitcases.
PW4 testified that the deceased had been to her house
and left in the evening shortly before the accused arrived there in
PW4 is a married woman of hardly any intelligence at
all. Her looks if anything leave much to be desired. But nonetheless
in love with the deceased and at the same time with the
accused. However it was not until she had been in love with the
for a year that she told the deceased who had been in love
with her for three years that she no longer loved him.
On the evening in question she told the deceased that
she was no longer in love with him and had told him so many many
The deceased accordingly left her and went away into
the night. Shortly afterwards the accused came to PW4's house, asked
come out and go round behind her flat-roofed house and
pointing into the darkness said to her "there is that friend of
lying there. I have killed him". She also said the
accused threatened her with death if she revealed to anyone. Under
while initially appearing to stick to her story she
nonetheless said the accused never said he had killed the deceased.
so muddled that salvation in regard to her version only
came through the question put to her by Counsel for the accused that
accused said he had beaten the deceased and not killed him.
Thereafter PW4 and the accused left for PW3's place
(Kanono Kanono's) where they were accommodated for the night. The
they used to be accommodated there on previous
occasions to give vent to their secret love. However
PW4 said their love was not secret.
Truly speaking it does not seem to me that there is much
controversy in the crucial facts in this matter for the accused does
deny assaulting the deceased with the result that the deceased
succumbed to the injuries sustained.
There was no eye witness to the assault. In this regard
the Court has had to hear and consider if the accused's story at the
was reasonably possibly true. It is a further feature of this
case that among items collected at the scene during the discovery
the deceased in distress was a stick identified as his. None of
these articles including the said stick has been exhibited to
Court nor were the same handed in in the Court below - A damning
pointer to the laxity shown by investigators in criminal offences
this country lately.
However the accused stated that when he was about to
reach PW4's place at and around the scene the deceased whom he did
not and could
not recognise at the time though he was a man he knew
well enough, asked who he was and the accused asked in turn who the
the question was. Thereupon the deceased said -
"Your mother's vagina, I have been wondering all
along why PW4 does no longer requite my my love. So you are the
Saying so the deceased threw a stone at the accused and
felled him to the ground as the stone had had its mark on the
Thereafter the deceased rushed at the accused and
hit him with a stick just after the accused had risen. In the
process the accused
hit the deceased twice with Exhibit "1"
whereupon the deceased fell to the ground.
It was submitted on behalf of the defence that there was
no need to have put to crown witnesses the fact that Exhibit "1"
had already cracked when the alleged assault in which this weapon was
used, occurred. There is no merit in this argument because
ignores a legitimate inference to be drawn that the blow must have
been very heavy to have resulted in the stick cracking as it
This argument further ignores the inference to be drawn that if the
blow was as hard as demonstrated by the cracking of Exhibit
administered on the deceased's head, then the accused's story that he
expected the deceased later to rise after he
had left him lying there
is baseless. This now further taints his story that he had acted in
self-defence in a fight wherein the
deceased was the aggressor. The
fact that the important explanation of how the deceased hit him with
a stone and felled him, and
later hit him with a stick has been shown
to be an afterthought, strengthens the conclusion that the so-called
he wishes to rely on before this Court is a
While indeed the accused bears no onus to disprove the
case against him, it was a matter of great surprise that a story
the accused and acknowledged by him to be of crucial
importance in his defence - inasmuch as it gives colour for the
reason why he
assaulted the deceased - should only be heard for the
first time when he was giving evidence in his defence. The authority
of Phaloane vs Rex 1981(2) LLR by Maisels, as he then was, at
p.246 is that :
"It is generally accepted that the function of
counsel is to put the defence case to the crown witnesses, not only
to avoid the
suspicion that the defence is fabricating, but to
provide the witnesses with the opportunity of denying or confirming
the case for
the accused. Moreover, even making due allowances for
certain latitude that may be afforded in criminal cases for failure
the defence case to the crown witnesses, it is important for
the defence to to put its case to the prosecution witnesses as the
court is entitled to see and hear the reaction of the witness
to every important allegation".
See also Small vs Smith 1954(3) SA at 434.
In the instant case the accused alleges that he told
this new matter referred to above to PW4 yet his side never bothered
to at least
in cross-examination to remind her of what it is alleged
the accused told her. In credit to him the accused owned up that he
not reveal this important part of his defence to his counsel.
To my mind the explanation that the accused gave of the
self-defence relied on by him should fail as a mere
afterthought fabricated as the last minute attempt to foil the case
for the Crown.
It is therefore rejected as false beyond all doubt.
However the Court cannot in the circumstances of this
case say the crown has proved the intention to kill on the part of
There is no evidence that the accused took his stick
particularly for the purpose of killing the deceased that day.
shows that a chance meeting between two males who
were vying for the love of a not particularly good looking female
other's paths and in the process the less fortunate one
died as a result of the assault received from the other.
The accused's conduct is not consistent with that of a
man who had fought in self-defence. He alleges he was injured in the
but never bothered to lodge a complaint with regard to the
unprovoked attack he received from the deceased. He saw that the
couldn't rise after he had hit him yet without bothering to
see whether he would rise from the assault he leaves his victim in
state and goes to enjoy the night with a girl friend a long way
away from the scene. Having woken up early he did not bother to
and observe if the deceased had managed to rise. It cannot serve as
an excuse for his callous behaviour that whilst at PW4's
pointing to her what appeared to be a
figure lying in the dark he thought the deceased would
pick himself up and go because he had seen the deceased strike light
light at the scene before PW4 was called out to come and see
that friend of hers.
Because the positive intent to kill has not been proved
though the claim of self-defence has been rejected as a mere
accused is found guilty of Culpable Homicide.
My assessors agree.
JUDGE 21st August, 1992
pleaded : Accused has no previous convictions.
SENTENCE: Sentenced to 4 years' imprisonment
half of which is suspended for 2 years on condition that the accused
be not convicted of a crime
involving violence to the person of
another committed during the period of the suspension.
For Crown : Miss Nku
Defence: Mr. Mathafeng
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