IN THE HIGH COURT OF LESOTHO
In the Matter between: REX
LERATO PHATSOANE Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 10th day of May. 1993
The accused is charged with murder, it being alleged
that upon or about the 9th day of March, 1990 and at or near Upper
the district of Quthing, the said accused did unlawfully
and intentionally kill Lebohang Ntsoana.
The accused pleaded guilty to the charge. The Court
entered a plea of not guilty. After consultation with his Counsel, he
his plea to one of not guilty. Mr. Mda, Counsel for the
defence, indicated to the Court that the defence was admitting the
made at the preparatory examination by P.W.2 to P.W.11
(inclusive). In terms of the procedure those depositions are now
in this Court. Only one witness Rethabile Mathabeng gave
evidence before this Court. I shall deal with her evidence at a later
On the 9th March, 1990 P.W.1 Rethabile Mathabeng and
some of the Crown witnesses were playing at or near the Anglian
when the deceased and others came to them. The deceased
accused P.W.1and her friends of standing on the mountain overlooking
and Leloaleng and insulting them. P.W.1and her friends
denied the accusation and said that they were usually shouting at the
of Mokanametsong. At that time P.W.1left for her home and as
she was leaving her hat fell down. The deceased took it and after her
departure he gave that hat to one Pusetso Lekhehle (P.W.6). He asked
her to take it to P.W.1.
P.W.1explained to this Court that she did not leave her
hat behind because she was angry but because she intended to come
take it from the deceased. This explanation does not make
sense because there was nothing to stop her from taking it at the
she left for her home. Moreover, she did not know that when she
came back the deceased would still be waiting for her there. The
truth seems to be what P.W.6 says that P.W.1was angry when she left
for her home. She was angry because the deceased made a false
accusation against her and her friends and the fact that he took her
The question of whether P.W.1was angry when she left for
home becomes very important when the story of the accused is
considered. His version is that when he arrived from
work he found that P.W.1 was very angry and she told him that the
taken her hat and had also assaulted her. The accused is
the brother-in-law of one Matseliso for whom P.W.1was working as a
At the relevant time Matseliso was not at home and the
accused was left in charge of the house. The hat which the deceased
belonged to Matseliso. It is, therefore, probable that when
the accused arrived at home P.W.1told him what had happened.
The accused says that after the report was made to him,
he took his bag and went to the foot-ball ground for practice. He
he would meet the deceased there and ask him about the hat
and the assault of P.W.1. Unfortunately the deceased did not attend
P.W.1says that when the accused arrived home he asked
her the whereabouts of the hat. She said it was there in the house.
the question three times. She told him it was there in
the house. The accused denies that P.W.1 told him that the hat had
P.W.1 says that the accused asked her where his knife
was. She said she did not know. He went into his bedroom and left.
came back after some time he had blood on his mouth and his
shirt was covered with blood. He ordered her to close and lock the
She complied. She later
left the house and was eventually taken by the police to
the charge office where she made a statement.
The accused says that when he returned from the
foot-ball ground the hat was still not there according to the report
made to him by
P.W.1, He denies that he asked the whereabouts of his
knife. He keeps the knife in his pocket all the time because at his
work he uses it to open boxes of goods which are sold in the
shop. He says that he could not ask P.W.1 such a question because she
did not know where he kept his knife. Having been told by P.W.1 that
the hat had not been returned, he decided to go to the home
deceased and to ask him about the hat and assault of P.W.1.
On his arrival at the home of the deceased, he found him
in the house. The deceased denied that he bad assaulted P.W.1. and
had not returned the hat. The accused says that he invited
him to come with him to his home so that he could confront him with
The deceased agreed.
The two young men i.e. the accused and deceased were
seen by some Crown witnesses walking towards the home of the accused.
was following the accused. When they came near the gate
of the accused's yard, the Crown witnesses saw that the accused and
were fighting. The word "fighting" may
mean a number of things, such as punching or boxing each
other with fists, or grappling with each other and many other things.
the witnesses were not asked to explain exactly what
the accused and the deceased were doing. The deceased was seen
and being chased by the accused. They ran until they got
behind roses and were out of the view of the Crown witnesses. When
emerged the deceased came to the Crown witnesses and sat down.
The accused returned to his home.
It is common cause that the deceased had multiple stab
wounds which were inflicted by the accused with an okapi knife.
the post mortem examination report the deceased had the
following wounds: a stabwound on the left arm, two stabwounds on the
of the head, two open wounds on the right side below the ribs
and a stabwound on the left side entering the left lung tissue and
cutting large lung-blood vessels. The doctor who performed the
post-mortem examination formed the opinion that death was due to the
chest stabwound entering the left lung with consequences of
As I have already said above no Crown witness saw how
the fight between the accused and the deceased started. The accused
is the only
person who has explained how the fight started. He says
that as they approached the gate the deceased asked him if he could
him for such a thing. Even before he could answer
him, the deceased punched him on the mouth and two front
upper teeth were knocked out. The accused says that the blow was so
that he felt dizzy and probably staggered. The deceased
attacked him and punched him on the face several times. Those blows
have the desired effect because he bent down his head and
shielded his face with his arms. However, a few blows did get through
a few bruises on his face.
As he was bending down he managed to catch the deceased
by his legs. They both fell down. The deceased got on top of him and
to punch him. At last the accused kicked or struck the
deceased on his private parts with his knee. The latter released him.
clear that he was in pain. They both rose. The accused says
that he did not run away because he feared that the deceased could
him with a stone from behind. Instead he took out his knife and
unclasped it as the deceased advanced towards him. He wildly wielded
the knife and stabbed the deceased but he does not know how many
times and where he stabbed him. The deceased suddenly ran away.
chased him for a distance of about seven (7) paces and then returned
and went to his home. He never stabbed the deceased during
It became clear under cross-examination that the accused
chased the deceased for a distance of about forty metres and not
as he alleges. There is absolutely no evidence that
the accused stabbed the deceased with a knife during the
chase. If there were such evidence the Court would be entitled to
that all the injuries inflicted during the chase were not
inflicted in self-defence.
The indications are that the stabwound on the left side
of the chest which entered the left lung tissue, was inflicted while
and the deceased were facing each other. There was no
suggestion that the accused is left-handed. The injuries on the back
head could also have been caused or inflicted during the
The criminal standard of proof has been described in
numerous cases. In R. v. Difford 1937 A.D. 370 at p. 373 Greenberg,
" no onus rests on the accused to
convince the court of the truth of any explanation which
he gives. If he gives an explanation, even if that explanation is
the court is not entitled to convict unless it is
satisfied, not only that the explanation is improbable, but that
beyond any reasonable
doubt it is false. If there is any reasonable
possibility of his
explanation being true, then he is entitled to his
In R. v. M. 1946 A.D. 1023 at p. 1027 Davis, A.J.A.
" the court does not have to believe
the defence story, still less does it have to believe it
in its details; it is sufficient if it thinks that there is a
possibility that it may be substantially true."
I have considered the story of the accused. I have come
to the conclusion that there is a reasonable possibility that it may
true. The Crown has, therefore, failed to prove its
case beyond a reasonable doubt.
The accused is found not guilty and he is discharged.
J.L. KHEOLA JUDGE
10th May, 1993
For Crown: Mr. Ramafole For Accused: Mr. Z. Mda.
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