IN THE HIGH COURT OF LESOTHO In the matter
andPOTSANE MOSUHLI Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 16th day of August. 1993.
The accused is charged with murder, it being alleged
that upon or about the 27th day of April, 1985 and at or near
Bokhoasa in the
district of Thaba-Tseka the said accused did
unlawfully and intentionally kill Tlhoriso Ramaimane.
Re pleaded not guilty to the charge.
According to medical report of the post-mortem
examination the deceased's death was due to repeated strong beatings
to the head and
those to the left hemisphere of the brain impression
fractures and also a large epidural haematoma, causing sudden death.
The evidence of Mothea Makhoali is that on the day in
question he was at the home of 'Mamokhafola. He was in the company of
Potsane, Tlhoriao and many other people. It was at dusk.
There was moonlight. From there he, accused and Maieane went to the
of Motsunyane, They all got into the house. The accused invited
one Hlakae to come out of the house with him. Hlakae complied. After
that the rest of them also went outside. Mothea says that when they
came out, Hlakae and the accused were at the forecourt. The accused
was holding Hlakae and demanding that he should pay back the money he
owed him. Hlakae said that he would pay it some other day.
At that juncture Maieane held Hlakae and shook him
asking him when he would pay the money. The deceased joined the
quarrel and caught
hold of Hlakae's stick and tried to wrest it from
him. After a short struggle Hlakae managed to pull away his stick. He
and got into the house. The accused held the deceased at the
shoulder and pulled him away. They stood about forty paces from
who says that he heard when the accused asked the deceased
whether he was "joining it". Immediately after that he
a thudding blow and one of them fell down. Because of the poor
state of light he did not see who was falling down.
As he approached them he saw that Maieane was also there
was stopping the accused from assaulting the deceased.
When he came to them he asked them what they were doing. NO one
The accused and Maieane left. He saw that it was the
deceased who had fallen down and that he had a wound on the forehead.
and walked away. The accused was drunk and had a "lebetlela"
stick. Maieane was also holding a "lebetlela" stick.
it was put to him that it was Maieane who had assaulted the deceased,
he said he did not know.
Mabilikoe Ntlibi is the chief of that area. He went to
the house of 'Matli and found the deceased there. He noticed that he
the verge of dying and asked him what had happened. He said:
"Potsane" and died.
I am of the view that this utterance by the deceased
just before he died cannot be regarded as a dying declaration because
not a complete statement. We do not know what he intended to
say about the accused. Furthermore there is no evidence that when he
uttered that word he had lost all hope to live.
Maieane Sennenne testified that when they left
Mamokhafola's place he was with the accused and P.W.I. When they came
place the accused said that he was going to fetch his
money from Hlakae. He got into the house and came out with Hlakae.
about twenty paces from him. He then heard
them making noise. He went to them and found that the
accused was demanding his money from Hlakae. The latter was saying
that he would
pay it some other day. At that time the deceased came
and tried to wrast a stick from Hlakae. Thereafter the accused had a
with the deceased. He was saying that that day was not the
day on which the deceased struck him, Maieane says that he intervened
and separated them.
The deceased left and was some distance ahead of them.
The accused ran towards him and when he came to him he struck him at
of the head with a stick. The deceased fell down. The
accused hit him on the head again. Maieane says that when the accused
the third blow at the deceased he (Maieane) warded it off
with his own stick. The accused said that he was retaliating because
deceased once hit him.
It will be recalled that at one stage when P.W.2 was
being cross-examined he suddenly said that he was mentally disturbed
he was seeing strange things. It was very clear that P.W.2
was telling a lie. It seems to me that the real reason why he
that he was not mentally sound was that he did not want to
give further evidence because the cross-examination was simply too
for him. An order was made that he must be examined by a
psychiatrist. As soon as he was released from gaol he vanished into
air. All attempts to trace him have been
in vain. I have no doubt in my mind that he is
deliberately evading service. He was aware that further
cross-examination would reveal
It will be noted that at the preparatory examination he
was declared as an accomplice. This indicates that he had made a
to the public prosecutor which implicated him in the same
charge against the accused. The Crown cannot declare a witness as an
unless that witness has a made a statement that he
participated in the crime with which the accused is charged. However,
got into the witness box he gave a statement that exculpated
him and implicated the accused.
I have formed the opinion that P.W.2 is dishonest and
unreliable. His evidence must be discarded in its entirety.
The version of the accused is that when they left
'Mamokhafola's place he was accompanied by Maieane, Hlakae and
Mothea. They had
been drinking Sesotho beer and they were drunk.
Their intention was to go to their respective homes. When they came
home Maieane peeped at the door and called the
deceased. The latter came out and he left with Maieane. He followed
them. He was with
Mothea. Maieane and the deceased were about seventy
paces ahead of them. Accused says that he
suddenly heard the sound of a stick blow. Mothea asked
him whether those people were fighting or playing. He said he did
Mothea remained behind because he was passing water. He
(accused) went to the deceased and Maieane. When he came to them the
had already fallen down and Maieane was standing besides
him. He asked Maieane why he had struck the deceased. He got no
Mothea eventually arrived and he also asked Maieane what the
deceased had done but there was no answer.
The accused says that he and Mothea passed and continued
on their way to their homes. When they were a short distance from
deceased had fallen they saw Maieane coming behind them.
The deceased also rose and came behind them.
In cross-examination the accused admits that he did ask
Hlakae about his money. He denies that there was any quarrel between
Hlakae about the money, He did not see when Maieane
This is an unfortunate case because on the night in
question all the witnesses who gave evidence before this Court,
accused were drunk. The accused concedes that he was
very drunk. He concedes that it is possible that he might not have
things due to drunkenness.
It was at night and the events in this case took place
well over eight years ago. All these things make it impossible for
to ascertain what exactly happened. I have already
rejected the evidence of P.W.2. Now the single witness who implicates
is P.W.I. The accused has denied the story of P.W.1and
has given his own version.
InR. v. Difford 1937 A.D. 370 at p. 373 Greenberg, J.
" 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 the present case I have considered the explanation
given by the accused and have come to the conclusion that there is a
possibility that it might be true.
8 The accused is found not guilty and he is
My assessors agree.
JUDGE 16th August, 1993.
For Crown: Mr. Thetsane For Accused Mr.
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