IN THE HIGH COURT OF LESOTHO In the matter
between: REX and
PEETE MASHEANE Accused
Delivered by the Honourable Mr. Justice J L. Kheolaon the 21st day of September. 1992.
The accused is charged with the murder of Khabutlane
Masheane (deceased), it being alleged that upon or about the 25th day
1990 and at or near Ha Masheane in the district of Berea the
said accused, acting unlawfully and with intent to kill, did assault
the deceased and inflict wounds upon him from which the said deceased
died at Maluti Hospital on the 26th July, 1990.
He pleaded not guilty to the charge.
The post-mortem examination report made by Dr.
Olowolagba was formally admitted by the defence and became evidence
before this Court.
The doctor formed the opinion that death was due
injury - brain damage. The deceased had a severe
depressed fracture of the right parietal skull.
Externally there was bleeding from the right ear and swollen right
Internally the brain was scattered and soaked in
blood on the right parietal region.
P.W.I Detective Trooper Mosoeu was stationed at Sefikeng
Police Station. On the 28th July, 1990 he was going to his office
met the accused who told him that he had fought with the
deceased and that he had died. On arrival at the charge office he
charged the accused with murder. On the following day he
went to the village of Ha Maaheane accompanied by the accused. On
arrival there the accused gave him a stick and explained that
he used it to hit the deceased. The stick (lebetlela) was handed in
and marked Exhibit "1".
Under cross-examination D\Trp Mosoeu said that the
accused explained that during their fight the deceased had a stick
but he did not
hit him but he (accused) hit him. The deceased was
drunk. D\Trp Mosoeu said that he instructed Thabo Masheane (P.W.3) to
deceased's stick to the charge
office but when the stick was brought he (Trp Mosoeu)
was not there. This witness said that the accused told him that when
with the deceased on the road they had a quarrel and then
accused went to his home to fetch his stick. When he came back he saw
deceased also returning from his home holding a stick. When they
met he hit the deceased. The latter fell down and that was the end
P.W.2 is Lehola Masheane. On the 25th July, 1990 he and
some other villagers went to cut thatching-grass. The deceased was
drank the Sesotho beer that was brewed for this purpose.
The accused was not there. They went back to the village late in the
and continued to drink beer until much later in the
afternoon when the deceased left. P.W.2 followed him until he
to his brother's place. P.W.2 passed but the accused
shouted at him and said he should wait for him so that they could
and talk. They parted after a very short time because
the accused went to Majara's place. As they parted the accused met
deceased and insulted him. The latter insulted back using
the same insult. They did not stop but just passed
At that time the deceased was holding a sickle in his
hands. From there deceased went to the home of the parents of P.W.2.
the sickle there and went to his home. The accused went to
his home. P.W.2 says that he also went to his parent's home and sat
the forecourt with his mother. After a short while the accused
returned from his home. He was then holding a stick in his right hand
and a blanket was rolled on the left arm. He was walking towards the
home of the deceased. He disappeared from their sight as he
apparently reached the home of the deceased.
The accused did not take a long time but came back and
called P.W.2 by name and ordered him to go and see the deceased where
belaboured him. At that time he looked very angry: Before
P.W.2 could answer him, P.W.3 who had been working in the garden came
The accused said to him: "Uncle, Uncle, go and see the
deceased where I belaboured him", When he eventually went to the
scene of the crime P.W.2 observed that the. deceased had fallen down
on his back, there were three contusions on the head and there
bleeding from the right ear.
He was unable to speak. He lay about seven (7) paces
from his house. They did not see any stick at the place where the
found lying. A vehicle was used to convey the deceased
to Mapoteng hospital on the same evening. P.W.2 admitted that the
the accused got pregnant while the accused was away from home
for a long time. On that day he observed that the accused looked very
well he and formed the opinion that he was not drunk. He says that he
could not make a mistake about the spot where he found the
lying. Jacobina's yard is about one hundred and forty yards away from
the deceased's yard. He thought the accused and deceased
when they insulted each other because they did not stop to indicate
that they were going to fight.
P.W.3 Thabo Masheane testified that on the day in
question the deceased went to the veld where the villagers were going
to cut thatching-grass,
P.W.3 did not go there but worked in his
garden. In the afternoon the deceased called at the home of P.W.3 and
returned the sickle
which he had borrowed in the morning. He went to
his home, P.W.3 says that after some time he saw the accused jump
over his (accused's)
fence and going towards the home of
the deceased. The accused walked normally when he
proceeded there. He passed at the forecourt of the house of P.W.3. He
a "lebetlela" stick in his right hand. A
blanket was rolled up his left arm. He got out of the view of the
P.W.2 when he actually reached the home of the deceased.
After a shortwhile the accused came back and told P.W.2 that he had
the deceased. P.W.3 says that he came out of his garden.
The accused reported to him that he had belaboured the deceased and
P.W. 3 to the spot where the deceased was lying. He had fallen on
his left side of the body at his forecourt. He denied that at the
preparatory examination he had said that the deceased had been found
lying at Jacobina's place. In the preparatory examination record
proceedings he is recorded as having said that the deceased had
fallen or was lying at his aunt's place. Jacobina is the deceased
aunt, P.W.3 says that he asked the accused why he assaulted the
deceased. He said the deceased had insulted him using very vulgar
P.W.3 tried to help the deceased by trying to
make him sit up but in vain because the accused did not
come to where the deceased was lying to
give assistance. He merely pointed him from, a distance.
Deceased could not speak and had a swelling on the head. He asked
come and guard the deceased. He went to the chief's place
and brought the chieftainess to the scene of the crime. She
her subjects to take the deceased to the hospital where he
died after two days.
In cross-examination P.W.3 said that the accused never
complained that his last daughter was not fathered by him. He
after P.W.I had instructed him to look for the
deceased's stick at the scene of the crime, he did find a stick a
long distance from
there. He was not sure that it was deceased's
stick. P.W.I said he had been told by the accused that a stick was
The evidence of Chieftainess 'Maselebalo Maaheane does
not carry the Crown case any further because she arrived too late at
of the crime after the deceased had been taken into his
house. She testified that she was acting as chief in the place of her
who was working in South Africa. She was the head of Masheane
family in the absence of her husband. As far as she knows
8 the accused never complained that the deceased had
fathered his (accused's) last daughter, 'Mathabo.
At the end of the Crown case the defence
closed their case without giving any evidence.
The evidence against the accused, which I have accepted
as true, is that during that fateful afternoon the accused met the
and insulted him without any provocation. The deceased
insulted him back using the same insult. They just passed each other
actually confronting each other. Later that afternoon the
accused was seen leaving his home and going in the direction of the
home. He was armed with Exhibit "1". He had
rolled up a blanket on the left arm. It is a well known practice with
men to roll up a blanket on the left arm when they are going
to fight. The blanket is used as a sort of a shield to stop the blows
from one's assailant. The accused returned from the home of the
deceased and reported to P.W.2 and P.W.3 that he had belaboured the
deceased. He invited P.W.3 to go and see him. He led him to the acene
of the crime and pointed out the deceased.
The deceased was lying on the ground. He could not speak
and had a contusion on the head and bled from the right ear. It is
cause that those injuries led to his death. It is common cause
that those injuries were caused by the accused. He confessed to both
P.W.2 and P.W.3 that he had caused those injuries. Under
cross-examination it was put to the Crown witnesses that the accused
fighting with the deceased when he inflicted those injuries. The
defence made no attempt to explain in any detail how the fight took
place and why the accused went to his home and armed himself in the
manner described above and then went to the home of the deceased
assaulted him there.
The accused was obviously not defending himself when he
went to the home of the deceased and attacked him. He was the
at the position of the wound on the parietal
region, it is probable that it was inflicted from behind It means
that the deceased
was facing away from the accused at the time he hit
him with that heavy stick.
The people who went to the scene of the crime
did not find any stick there or anywhere near that area.
The policeman attended the scene of the crime in the company of the
but the latter failed to point out the stick alleged by him
to have been used by the deceased in their so called fight. I am of
view that the stick that was later found lying some distance from
the scene of the crime had nothing Co do with the deceased. It
probably planted there by the accused himself in an attempt to
implicate the deceased. There is ample evidence that the deceased
been holding a sickle in his hands and nothing else.
It was suggested in cross-examination that the deceased
had fathered one of the accused's daughters, 'Mathabo and that was
the cause of the trouble between them. There is no
evidence to that effect. In addition to that the accused never
complained to any
member of his family. He never sued the deceased
for seduction but he decided to take the law in his own hands and to
take the live
of a man regarded by the law as innocent.
In The State v. Masia 1962 (2) S.A, 541 (A.D.)
the headnote reads as follows:
On the one hand an accused's failure to testify can only
be used as a factor against him where at the end of the case for the
there is evidence on which a jury' may convict; that is where
the State has prima facie discharged the onus which rests on it. It
cannot therefore be used to supply a deficiency in the case for the
State, that is to say, where there is no evidence on which a
reasonable person could convict. On the other hand, it would be wrong
to regard it as a factor only where at the end of the State's
there is proof of guilt beyond reasonable doubt, for then it would
not be needed. Within these limits, the weight to be attached
must necessarily depend upon the circumstances of the particular
12 In S. v. Khomo and others 1975 (1) S.A. 344
Miller, J., said at pp. 345-346:
"It is well known that an accused person, although
not obliged to say anything may nevertheless assist the State case
remains silent, depending upon all the facts and
circumstances. When I say he may assist the State case, I mean no
more than that
his silence is one of the factors which may be taken
into account in assessing the weight of the evidence in its totality,
be given some weight, depending upon the facts and
In general, greater weight will be attached to silence
where there is direct testimony implicating the accused, which the
reasonably expect he would simply explain away if it were
not true, than in a case where there is no such direct evidence, and
the question of his guilt or otherwise depends upon inferential
reasoning (of S.v.Letsoko, 1964 (4) S.A. 768 (A.D.) at p. 776).
such a case an accused
person might well take up the attitude that he concedes
all the facts proved, but that he challenges the ability of the
Court to draw an inference of guilt from those facts,
and if that is his view, his failure to give evidence may not be
to any consciousness of guilt on his part, but to his
confidence that the evidence does not establish guilt and does not
to be answered,"
I am satisfied that at the close of the Crown case a
prima facie case had been established by the Crown, by both
and a confession by the accused to P.W.2 and
P.W.3. He went to the home of the deceased and hit him with a heavy
stick on a delicate
part of the body; he foresaw that the injuries he
was inflicting upon the deceased were likely to cause death but was
such death occurred or not. I am of the opinion that
he had the requisite intention to kill the deceased.
The accused is found guilty of murder.
14 My assessors agree.
JUDGE 21st September, 1992.
For Crown - Mr. Qhomane
For Defence - Mr. Seotsanyana.
The Court has found that this is a case of dolus
eventualis. In S. v. Sigwabla 1967 (4) S.A.
566 at p. 571 the Appellate Division held that
"(a) Trial courts in their conspectus of possible
extenuating circumstances, should not overlook the fact (if it be
it is a case of dolus eventualis.
(b) While it cannot be said that this factor must
an extenuating circumstance, in many cases it may well
be so, either alone or together with other factors, depending on the
facts of the case."
I am of the opinion that in the present case the fact
that it is one of dolus eventualis is an
extenauting circumstance without any other factors.
Sentence:- Ten (10) years' imprisonment. My
remaining assessor agrees.
J.L. KHEOLA JUDGE
21st September, 1992.
Crown: Mr. Qhomane
Defence Mr. Seotsanyana.
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