IN THE HIGH COURT OF LESOTHO In the matter
andTHUSO MABASO Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 20th day of August. 1993
The accused is charged with the murder of Fielane
Mohokane on or about the 10th day of September, 1989, and at or near
the district of Leribe.
He pleaded not guilty to the charge.
P.W.1Raphael Monkhi testified that on the day in
question he went to a place where the initiates for circumcision were
they were due to go to a circumcision school in a week's
time. The meeting proceeded well. At about 1.00p.m. it came to an end
the people started returning to their homes. P.W.1says that on
their way back home he was in the company of the following people:
Paleng, Thabo, Jaba, Koaling, Thota, deceased and the accused. He was
walking infront of the accused and the deceased and was about
paces ahead of them.
P.W.1 says that the accused hit the deceased twice above
the left ear with a stick. The deceased fell down. Accused then hit
times on the ribs with a stick. Thabo intervened and
stopped the accused from assaulting the deceased. There was no
exchange of words
before the accused hit the deceased with a stick.
He says he did not intervene because he was afraid of the accused.
was holding a stick in his hand but he never used it
because when the accused struck him on the head he fell down. After
the deceased bled from the mouth and the nose. A scotch
cart was brought to the scene of the crime and the deceased was
to the hospital.
In cross-examination P.W.1 said that he did not know
that the deceased was a lunatic. He was the uncle of the accused. He
know that there was bad blood between the accused and the
deceased. He says that when he looked back he saw that the accused
assaulting the deceased. He saw two wounds on the head.
P.W.3 Mpho Tsupane testified that on the day in question
he was on the hill between the villages of Khapung and Liphofung. He
returning from a meeting at Phatlalla concerning a circumcision
ceremony that was to take place in a week's time. He estimates the
time to have been about 3.00p.m. He was accompanied by some people
including P.W.1, deceased and Thabo.
The accused came at a later stage and joined the others
where they were standing. When the accused joined them he did not
anybody. He, all of a sudden, struck the deceased on the
head with a stick. The latter (ell down and the accused continued
him after he had fallen down. Thabo stopped the accused from
assaulting the deceased.
P.W.3 says that he asked the accused why he was
assaulting the deceased. He said that the deceased had once struck
him. Accused was
already walking away when he gave the reason why he
assaulted the deceased, Thabo also asked the accused why he assaulted
He did not answer him. P.W.3 says that the deceased was
unable to stand up. He was unable to speak. They took him and put him
a shade. He observed the following wounds: one on the middle of
the head,one on the left side of the head and others on the ribs.
left the deceased in the care of P.W.1and Thabo. He fetched a scotch
cart from the village and the deceased was taken to the hospital.
It is P.W.3'8 evidence that on that day the usual and
customary "playing with sticks" was not there. The accused
the deceased without any justifiable cause. The
deceased never hit the accused with a stick while they were standing
there at the
side of the hill. To his knowledge the accused and
deceased had cordial relations and they were related
4 to each other.
In cross-examination P.W.3 says that at the preparatory
examination he said that other men did not intervene in the fight but
did by warding off the blow delivered by the accused directed
at the deceased. He forgot to mention that the deceased was bleeding
from the ear. He remembers very well that the deceased bled from the
ear because he was the one who put the deceased in the scotch
and he bled on the pillow he brought.
The version of the accused is that they were returning
from a place called Moroeroe where they had gone to see the
initiates. He was
in the company of Moqebelo and Thota. They stopped
at the hillside and saw their fellow men coming up from Moroeroe
River and were
singing. They joined the group and went along with
them singing. When they came to the second hill the deceased took two
him and said: "Hooa". This was an invitation
to him that they should engage in a stick play. He accepted the
As soon as they started the deceased struck him with his
stick on the forehead just behind the hairline. He (accused) struck
on the forehead. The deceased struck him on the left
elbow. He (accused) struck the deceased above the left ear. The
down. Thereafter he left. The deceased
appeared to be tired. He was able to ait on hie buttocks
after he hit him. Later he stood up and walked to the side of the
says that after the deceased had fallen down he never
assaulted him. He denies that Thabo stopped him from assaulting the
All the men were standing about seventy paces from them and
made no attempt to intervene in play when it developed into a fight.
One Koaleli shouted at them and asked them why they were fighting.
Accused says that he told Koaleli athat he saw what was happening
The accused testified that he surrendered himself to the
police. He had a wound on the forehead which was still bleeding when
to the police. His left elbow was swollen. The police saw his
injuries but they did not refer him to a doctor for examination and
treatment. When he was taken to court for remand the wound was still
clearly visible but the magistrate made no order that he must
examined by a doctor. When he came to prison the officers there did
not refer him to a doctor despite the fact that they saw the
He says that he did not help the deceased because the blood from his
wound was pouring into his eyes. Although he still thought
deceased he had no strength to help him. He did not have the chance
to retreat after he was struck on the forehead. Any
backwards would have caused him to fall and thus exposing himself to
a serious danger.
Mr. Klaas, attorney for the accused, submitted that
there were minor discrepancies and contradictions in the evidence of
P.W.3. As an example of this he says that P.W.1says that
there were eight men when the accused attacked the deceased. On the
hand P.W.3 says that there were only four men. I agree that
there seems to be discrepancy in their evidence on this point.
there seems to have been a number of groups of men and
joining each other at various points along the way. P.W.1mentions
accused joined their group just before he assaulted the
deceased. The question is whether he was alone or not.
The other contradiction is that P.W.1said they were
still walking when the attack took place. On the other hand P.W.3
says they had
The evidence of the two Crown witnesses is that on that
day there was no playing with sticks. The accused attacked the
any warning and struck him on the head and on the
left side of the head. He fell down. The accused belaboured him after
he had fallen
down. In his defence the accused says that the deceased
invited him to a play with their sticks. Instead of playing he
struck him on the forehead with a stick and the play
developed into a fight. It was never put to the Crown witnesses in
that the deceased was
the first to hit the accused. I heard for the first time
when the accused went into the witness box that the accused was
the deceased with a stick. It was never revealed that the
accused had sustained any injuries at all.
It was never put to the Crown witnesses that the accused
was actually defending himself and that he had no chance to retreat.
The Crown witnesses, or at least one of them, i.e. P.W.3
said that when he asked the accused why he assaulted the deceased, he
the deceased had struck him on a previous occasion. In other
words he was saying that he was retaliating. This allegation was not
denied in cross-examination. It stands unchallenged.
The whole of the defence case was never put to the Crown
witnesses. In Small v. Small 1954 (3) S.A. 434 Classesn, J. said:
"It is, in my opinion, elementary and standard
practice for a party to put to each opposing witness so much of his
own case of
defence as concerns that witness, and if need be, to
inform him, if he has not been given notice thereof, that other
contradict him, as to give him fair
warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly unfair
and improper to let
a witness's evidence go unchallenged in
cross-examination and afterwards argue that he must be disbelieved."
Again in Phaloane v. Rex 1981 (2) L.L.R. 246 at pp .
252-253 Maisels, P. said:
"The learned trial Judge however stated that the
failure by Mr. Erasmus to put his client's case did not imply an
of the Crown witnesses' evidence although it may weaken
criticism of these witnesses. He considered that the evidence from
was entitled to the same careful consideration as if
the elements of the defence case had been put to the witnesses for
Speaking for myself I think the learned Judge was, if
anything, leaning over backwards to be fair to the appellant and I am
to say that I attach considerable weight in the circumstances
of this case failure by the defence to cross-examine the Crown
on the crucial questions as to whether the deceased was
tied by a rope and chain when he spoke to the appellant and as far as
is concerned the alleged attack by the deceased on the
appellant. But, so Mr. Braamua argued, the defence case was
put to Motlaka. He referred to a number of
passages in the record in support of his submission, I have read all
these passages and
I can find no support for the suggestion that his
defence was put at all to Motlaka, let alone put substantially."
In the present case I attach a great deal of importance
the failure of the defence to put their case to the two
Crown witnesses. Mr. Klaas is a fairly well experienced attorney of
and I find it unbelievable that he could overlook to put
the entire defence case to the Crown witness. There was no indication
all that the accused had been hit by the deceased and that he had
sustained any injuries. Such injuries were not even shown to
Trooper Moeketsi (P.W.2) who says that the accused made an
explanation to him and gave him the stick (Exhibit "1"). I
it quite improbable that the police, the magistrate and the
prison authorities showed no interest in the wounds the accused had
sustained and that they were never medically treated until
they healed on their own,
I found P.W.1and P.M.3 to be honest reliable witnesses
who were not shaken at all by the cross-examination by the defence
On the other hand the story of the accused is so improbable
that it cannot be reasonably possibly true. It was obviously an
of which his own counsel was probably not aware.
Mr. Klaas submitted that the Crown has failed to prove
that there was deliberate and direct intention to kill the deceased.
which I have accepted is that the accused struck the
deceased without any prior warning and without any provocation on the
the deceased. Exhibit "1" is a very heavy and
ragged stick. In striking the deceased with that kind of
weapon the accused foresaw the possibility that his act was likely to
the death of the deceased but he was reckless as to whether
death occurred or not.
I find the accused guilty of murder. My assessors agree.
J.L. KREOLA JUDGE
20th August, 1993.
For Crown ; Mr. Ramafole For Defence ; mr. Klaas.
The fact is that this is a dolus eventualis is an
Seven (7) Years' imprisonment.
Exhibit "1' is forfeited to the Crown.
J.L KHEOLA JUDGE
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