IN THE HIGH COURT OF LESOTHO
In the Matter of:
VS MOFIHLI SEFEANE
Delivered by the Hon. Mr. Justice B.K. Molai on
the 2nd day of March, 1993.
The accused is before me on a charge of murder, it being
alleged that on or about 15th March, 1989 and at or near Ha Makhakhe
district of Mafeteng he unlawfully and intentionally killed
Mokalanyane Mosoa. When it was put to him, the accused pleaded not
to the charge.
In the course of the trial Mr, Mathafeng, counsel
for the defence, admitted the depositions of Pule Mosoa, D/Tpr.
Mphoto and P/W Lesia who were P.W.1, P.W.6 and P.W.7, respectively,
at the proceedings of Preparatory Examination.
Mr. Ramafole who represents the Crown in this
trial accepted the admissions made by the defence. The depositions
of P.W.1P.W.6 and P.W.7 at the
Preparatory Examination proceedings
were, therefore, accepted as evidence and it became unnecessary to
call the deponents as witnesses
in this trial.
It may also be mentioned that it was disclosed, in the
course of the crown evidence, that Maphure Mokoma who was P.W.4 at
Examination proceedings had since died and,was
therefore, not available to testify in this trial. By consent of
both counsels his
depositions, at the Preparatory Examination, were,
however, accepted as evidence in this trial. The Medical doctor who
the post-mortem examination on the dead body of the
deceased was an expatriate. He has since returned to his country and
is not available
to testify in this trial. Likewise his post-mortem
Examination report on the body of the deceased was, by consent of
handed in, from the bar, as exhibit "A".
Mr. Ramafole for the crown informed the court
that the crown was dispensing with the evidence of Maki Motau and
Napo Motsoahae who were P.W.5
and P.W.8, respectively, at the
proceedings of the Preparatory Examination. The witnesses were,
therefore, made available to the
defence, if it so wished.
Briefly stated, the evidence relied upon by the crown
was that of D/Tper. Mphoto according to whom he was a police officer
at Matelile police post. On 15th March, 1989 he was on
duty at his police post when he received a certain report following
he proceeded to the village of Ha Makhakhe where he found the
body of the deceased. He examined the body for injuries and found
that it had sustained two open wounds, one below the right breast and
another above the left breast.
Following his investigations, D/Tpr Mphoto met the
accused, cautioned and charged him as aforesaid. He conveyed the
dead body of
the deceased in a police vehicle to the mortuary. It did
not sustain additional injuries whilst it was being transported from
Makhakhe to the mortuary.
According to the Post-mortem examination report - axh
"A"-on 17th March, 1989 the medical Doctor at Mafeteng
Hospital examined a dead body of a male Mosotho adult. The
body was identified as that of the deceased, Mokalanyane Mosoa, by
Mosoa and Pule Mosoa. This is confirmed by Pule Mosoa who,
according to his evidence, is the son of the deceased.
The findings of the Medical Doctor were that the
deceased had sustained a superficial laceration on the right chest
and a deep laceration
on the carotid area of the left aspect of the
neck. On opening the body, the doctor found that the
left carotid was amputated and the pericardial sac filled with
From these findings the doctor formed the opinion
that the deceased'8 death was due to post intrapericadial haemorrhage
as a result of the injuries he had sustained.
I can think of no good reasons why the opinion of the
medical doctor that the deceased died as a result of the injuries
upon him should be doubted. The salient question that
immediately arises is whether the accused is the person who inflicted
on the deceased and,therefore, brought about his death.
In this regard it is perhaps necessary to mention, from
the word go, that it is common cause that the accused is married to
of the deceased who was, therefore, hie father-in-law.
The court heard the evidence of P.W.1, Motlatsi Molupe, who testified
he worked as a salesman at the shop of one Maneo in the village
of Ha Makhakhe. On the afternoon of the day in question, 15th March,
1989, he and a co-worker viz. 'Mapalesa Makhakhe were sitting outside
the shop. He noticed 'Mapalesa hurriedly getting up and going
the shop. When he looked around P.W.1 saw a certain 'Maphure Mokoma
and the deceased entering through the gate leading into
premises. The deceased was holding a small poplar stick. They
were followed by the accused who was holding an
unclaspped yellowish knife in his hand. When Maphure and the deceased
he was seated, the latter stopped whilst the former went
into the shop.
On arrival at the spot where he was standing, the
accused touched the deceased on the shoulder and asked him whether he
carrying a stick for him. The deceased then turned around
and faced towards the accused saying: "wait child, why do you
on following me?" or words to that effect. Fearing that
the accused might stab the deceased with the knife he was holding
up from where he had been seated and went to the two men.
He warned the accused not to do what he was apparently up to and
him out of the shop premises. The accused did not heed his
warning. He instead stabbed the deceased above the left breast with
knife he was holding in his hand.
Initially P.W.1 told the court that a fight then ensured
between the two men. In the course of the fight the deceased was
wielding his stick in front of the accused who was delivering
blows on him with the knife. However, P.W.1later conceded that after
the accused had stabbed the deceased, the two men were fighting each
other. The deceased was delivering blows with his stick at the
accused, who was dodging and also delivering blows with his knife at
the deceased. The blows
delivered by the deceased were, however, missing the
accused whilst those delivered by the accused were landing on the
According to P.W.1 the accused eventually left the
deceased and walked away from the shop premises. The deceased then
the shop. He, however, fell down next to the shop
building. He was bleeding profusely from the injury he had sustained
on his left
breast and eventually died on the spot.
The evidence of P.W.1was confirmed by P.W.2, 'Mapalesa
Makhakhe, who, however, told the court that after she and 'Maphure
gone into the shop, she could not see what was taking
place outside the shop. She only heard the voice of the accused
you going about carrying this stick for me?"
She lived in the same village as the accused did and knew his voice
had no difficulty, therefore, in identifying his voice.
P.W.2 further told the court that after 'Maphure Mokoma
had left the shop, she eventually went out through the back door. She
many people gathered outside the shop where the deceased was
allegedly lying dead. She was frightened and could not personally go
nearer to see the dead body of the deceased. In as far as it is
material, the evidence of P.W.1 and P.W.2 was corroborated by Maphure
Mokoma who according to them had since
7 passed away.
The evidence of Police Woman Lesia was to the effect
that on 15th March, 1989 she was still on duty at Matelile police
a brownish press button knife was handed to her. She took
possession of the knife which had since been in the police custody.
knife was by consent of both counsels handed in from the bar as
exhibit "1" in this trial.
In his defence, the accused told the court on oath that
prior to the incidence of 15th March, 1989, the deceased, with the
of two other men, had assaulted him and fractured bis arm.
A plaster of paris had to be put on his arm. Re had reported the
to the local chief who confronted him with the deceased. The
deceased, however, threatened to kill him.
On the day in question, 15th March, 1989, the plaster of
paris had already been removed from his arm. At about 4 O"Clock
afternoon, he left his place of work at a mission and returned
home. On the way he went via the shop of 'Maneo to buy some tobacco.
On arrival at the shop he found P.W.1, 'Maphure Mokoma, a certain
Maki and the deceased. P.W. 2 was not there. When he saw him the
deceased insulted him for no reason and said: "Your mother's
vagina you are: Have you removed the plaster of paris?" He
asked the deceased whether he was still brooding on
the old affair. The deceased then hit him a blow on the
head with a stick he was holding. Initially the accused said the
which the deceased had dealt him a blow on the head was a
heavy pick handle. He later changed and said it was "Mahlephisa"
stick. According to the accused, as he was moving backwards and away
from him, the deceased kept on coming to him and delivering
blows which he (accused) warded off with his bare hands. He
eventually took out of his pocket a knife (Exh 1) with which
delivered a blow at the deceased. He then noticed blood stains on his
knife and suspected that he might have stabbed the deceased.
him and walked away from the shop premises.
The accused denied, therefore, the crown evidence that
when he came to the shop he was already holding an unclaspped knife
hand. According to him the accused used the knife only once
to repel the unlawful attack perpetrated on him by the deceased. He
stabbed the deceased the wound on the chest and did not know how he
sustained the deep injury on the left side of the neck.
It is worth noting that under cross-examination, the
accused told the court that he had rehearsed his defence in this
trial with other
inmates, at the prison, who had schooled him on what
to say in his evidence. He conceded that the evidence he
had given before this court was not the whole truth. The
accused is, therefore, a self-confessed liar whose testimony must, in
finding, be approached with caution.
Considering the evidence as a whole, there can be no
doubt that the accused is the only person who fought with the
deceased on the
day the latter sustained the injuries that brought
about his unfortunate death. The only question for the determination
of the court
is, whether or not when he inflicted the fatal injuries
on the deceased, the accused did so with the requisite subjective
Although the accused told the court that he stabbed the
deceased only once, the evidence is overwhelming that the deceased
two stab wounds, one on the chest and another on the
neck. It is clear from the medical report - exh "A" - that
that resulted in the death of the deceased is the one on
the neck. The question is at what stage of the fight did the accused
this fatal injury.
There is evidence, which I am inclined to believe, that
after he had been stabbed the first injury on the chest the deceased
fighting the accused. If the first stab wound inflicted on
the deceased was the one on the neck which according to the medical
severed the main blood vessel, the deceased
would not have been able to continue fighting as
disclosed by the-evidence. From the fact that after he had been
stabbed the first
wound the deceased was able to continue fighting
with the accused until they reached the gate of the shop premises, it
to infer that he was stabbed the superficial laceration
on the chest. That being so, it must be accepted, in my findings,
fatal stab wound on the neck was inflicted on the deceased
whilst he and the accused were exchanging blows next to the gate
out of the shop premises.
Assuming the correctness of my finding that the fatal
stab wound was inflicted on the neck of the deceased in the course of
it is trite law that in the circumstances one must avoid
making arm chair judgment and put oneself in the situation in which
accused found himself. The accused could not, in the
circumstances, have been able to form the requisite subjective
kill. The question I have posted earlier viz, whether
or not when he inflicted the fatal injury on the deceased the accused
the requisite subjective intention to kill must, therefore, be
answered in the negative.
From the foregoing it is clear that the view that I take
is that the accused is guilty of culpable Homicide and not murder. I
find the accused guilty of Culpable Homicide.
Both my assessors agree with this finding.
In mitigation of his sentence, the court is invited to
take into consideration that the accused is a first offender and has
a plea of guilty to culpable Homicide as a sign of remorse.
His plea has, however, not been accepted by the crown. The accused is
a married man who has a wife and two minor children to maintain. He
has been in custody ever since his arrest in 1989. The relatives
the deceased will in all probabilities sue the accused for ten (10)
herd of cattle as compensation, in accordance with the Sesotho
I am prepared to consider all these factors in
mitigation of the accused person's sentence. However, I cannot turn a
blind eye to
the seriousness of the offence with which the accused
has been convicted. He has deprived another human being of his life.
has on numerous occasions warned that it will take a diem
view of people who deprive other people of their lives. This warning
however, not to be heeded. It is also significant to note that
a knife was used to kill the deceased in this case. Too many people
have lost their lives through the
use of knives in this country. It is time to bring home
to the accused and people of his mind that this type of behaviour
brought to a halt.
For all these reasons, I have come to the conclusion
that a sentence that will be appropriate for the accused person is
that he should
go to gaol and serve a term of five (5) years
imprisonment without an option of a fine. I accordingly sentence him.
JUDGE. 3rd March, 1993,
For Crown: Mr. Ramafole For Defence: Mr,
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