IN THE HIGH COURT OF LESOTHO In matter
andNGENAPHI KANYOTHI Accused
Delivered by the Honourable Mr. Justice J.L, Kheola on
the 8th day of September. 1993
The accused is charged with the murder of Makunyene
Kanyoti upon or about the 5th day of August, 1990 and at or near Ha
in the district of Quthing.
He pleaded not guilty to the charge.
The deceased's death was due to a fatal injury by a
abject penetrating through the left superior thoracic
inlet straight into the superior lobe of the left lung.
P.W.1 'Maekha Kanyoti is the wife of the deceased. The
accused is the younger brother of the deceased. She testified that in
the accused and the deceased had a dispute concerning the
ownership of a tree plantation. The deceased won the case in the
of law. However, ever since that case the
relations between the two families have not been good.
On the day in question she saw that the children of the accused were
a domestic fowl. She identified the fowl as hers and
told the children that the fowl was hers.
The accused, who was at his home which is not far from
P.W.1's home, answered and said the fowl was his and instructed
the children to continue to chase it till they caught
it. P.W.1says that she told the accused that to prove that the fowl
when it got tired it would run into her house or into the
culvert of her kraal according to how she had taught all her fowls.
fowl did run into the culvert of her kraal. The accused came and
The deceased joined his wife and told the accused that
the fowl was his. P.W.1says that at this juncture the accused invited
to come to his home with him so that he could show them the mate
of that fowl. The wife of the accused also shouted from her home
said they should come and see the mate of that fowl. When they came
to the home of the accused, she asked him where the mate
of the fowl
was. The accused said that it was there and fastened because it was
going to be slaughtered. All of a sudden the accused
knife. P.W.1says that at that time the accused was about four paces
infront of her. The deceased was behind her. She turned
the deceased that
3 the accused had produced a knife.
They both turned and walked back to their home. The
accused rushed at the deceased and stabbed him just below the left
deceased turned and held the blade of the knife. During
the struggle over the knife, the son of the deceased came and joined
father in the struggle to try to dispossess the accused of the
knife. He was not successful until he pushed the accused into the
kraal. During the struggle the deceased got weak because of the
stabwound and collapsed on the kraal.
Thereafter the accused rose from where he had fallen and
rushed at the son of the deceased still holding the knife. The latter
up a stone and hit him on the forehead with it. The accused
fell into the kraal and fainted. P.W.1says that she cried and took a
bucket full of water and poured it on the deceased and the accused.
The accused regained his senses, rose and left for his house.
deceased was unable to stand. They carried him to his house where he
died immediately after he had arrived there.
In cross-examination P.W.1said that the son of the
deceased (P.W.2 Velaphi Kanyoti) was at his home when he heard them
the fowl and then proceeding to the home of the
accused. He was not with them when they arrived at the accused's
4 home. She denied that they went to the home of the
accused for the purpose of taking the fowl from the accused by force.
that the names of the children who were chasing the fowl
were Mampolokeag and Nongoliso.
P.W.2 Velaphi Kanyoti testified that on the 5th August,
1990 at about 5.00 p.m. he was sleeping in his house when he was
by a noise outside. He heard accused's wife saying the fowl
was hers. He came out of the house and stood at the forecourt. He saw
the accused and the deceased standing near the forecourt of the
latter. Accused was saying that they should go to his place so that
he could show them the mate of that fowl as proof that it was his.
They proceeded to the home of the accused. P.W.2 says that he
into his house and took a blanket and followed them.
When he got into the accused's site they had reached the
accused's forecourt. The deceased asked the accused as to where the
mate was. At that time P.W.1warned the deceased that the
accused had a knife. She said they should go home. P.W.2 says that as
approached, the accused rushed at his father (deceased) and
stabbed him with a knife. The deceased turned and held the knife.
also came and held the knife. During the struggle he pushed the
accused over the wall into the kraal. He fell into the kraal but
and advanced towards him. P.W.2
picked up a stone and hit him on the head. He fell into
the kraal again and apparently fainted. P.W.1 brought a bucket full
and poured the accused and the deceased with it. The
accused rose and got into his house. The deceased was
carried to his house but died immediately after his arrival there.
The version of the accused and his wife is in direct
conflict with the version of P.W.1and P.W.2. The accused testified
that it is
true that he and the deceased had a dispute over a tree
plantation. He took the case to the courts of law and lost. He denies
as a result of that dispute he was not on cordial relations with
On the day in question he was sitting near his kraal and
busy making yokeskeis and using a knife. On that same day he had
sold a fowl (a cock) to one Sindephi. When Mampolokeng,
Sindephi'a daughter came to fetch the fowl she found him near the
he was etill making yokeskeis. He instructed Mampolokeng
and his daughter to catch the fowl. They chased it. While they were
it P.W.1 came out of her house and said that the fowl was
hers and asked them why they were chasing it. They caught the fowl
brought it to him at the kraal. The toe of that fowl was not cut
like P.W.1's fowl's whose toes are cut.
P.W.1 went into her house and came out accompanied by
deceased and P.M.2. They came to him. When they came to
him they did not say anything. The deceased just hit him with a stone
head and blood (lowed down into hie eyes. He held the deceased
around the waist still holding the knife in his hand. He says that
does not know how he stabbed him because he was not fully conscious.
He does not even know how he held the knife after he was
hit with a
D.W.2 'Mampolokeng Mokoteli testified that cm the day in
question he was sent by his father to go to accused's place to fetch
he had bought from the accused, She found the accused near his
kraal making yokeskeis. The fowl was at the accused's place. She and
accused' daughter, Nongoliao were instructed to catch it. They chased
it until it went to P.W.1's place where Nongoliso caught it.
said that the fowl was hers. Nongoliso said that it belonged to her
family. P,W.l examined the fowl and said that it belonged
D.W.2 says that she did not know what P.W.1observed to confirm her
claim that the fowl was hers. They took the fowl to the
was still at his kraal. She denies that the accused left his kraal
and went to P.W.1's premises while they were chasing
After they had given it to the accused, P.W.1and the
deceased left their home and came to the accused at his kraal.
Without uttering a single word, the deceased just hit
the accused with a stone on the head. Blood flowed down his face.
the accused and deceased grappled with each other. D.W.2
said that she ran away towards her home. As she ran away she saw
to the scene of the fighting. She ran until she came to
her father and reported to him whet was happening.
The criminal standard of proof has been stated in a
number of cases.
In R. 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
even if that explanation is improbable, the court is not
entitled to convict unless it is satisfied, not only that the
is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
true, then he is entitled to his acquittal."
In R. v. M 1946 A.D. 1026 at p. 1027 Davis, A.J.A. said:
" the court does not have to believe
the defence story, still lees does it have to believe it
in all its details; it is sufficient if it thinks that there is a
possibility that it may be substantially true."
In Miller v. Minister of Pensions (1947)2 All E.R. 372
373 Lord Denning, J. said:
"It need not reach certainty, but it must carry a
high degree of probability. Proof beyond a reasonable doubt does not
beyond a shadow of doubt. The law would fail to protect
the community if it admitted fanciful possibilities to deflect the
of justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour, which can be dismissed
with the sentence of course it's possible but not in the least
probable,' the case is proved beyond reasonable doubt, but nothing
short of that will suffice."
In the instant case the accused has given an explanation
which is reasonably possibly true. His version is corroborated by
Mokoteli who is an independent witness. I say she is an
independent witness because she is not related to the accused in any
I observed her when she gave evidence before me and I formed the
impression that she was honest and reliable. She was not shaken
all in cross-examination. She corroborated the accused on the crucial
points in the case being that the accused never left his
went to P.W.1's home; that it was the deceased who hit the accused
with a stone on the head; that at that time the deceased's
not arrived at the kraal of the accused; that immediately after the
accused was hit with a stone by the deceased the two
with each other.
The effect of the evidence of the accused and
'Mampolokeng is that the deceased and his wife invaded the accused at
his home on the
ground that he (accused) was taking their fowl. I
have carefully considered the story of P.W.1and P.W.2 as to the
reason why they
went to the home of the accused. They allege that the
accused invited them to come so that they could compare the fowl with
I do not know what that really means because the fowls of
both families meet during the day as well as at night where they
on the trees. Cocks mate with the hens indiscriminately so that
it is possible that one may find fowls identical to each other but
belonging to a different
In any case P.W.1 says that she showed the accused that
the toe of that fowl was cut. At that time the accused was at her
the fowl. It seems to me that the cut toe was
conclusive proof that the fowl was here because that was her mark.
toes were not cut. Now why did the deceased and
P.W.1go to accused's place. They were convinced that the fowl
belonged to them and
there was no reason why they could agree to go
and see the mate of the fowl. Their story is improbable and
If their story is true that it was the accused who
the fowl at P.W.1's kraal, it must have been clear to
them that the accused intended to cause serious trouble. Fowls are
and caught by children and not by their parents. Why
did the deceased and his family go to the home of the accused when he
clear that he was in a fighting mood? I tend to agree with
the suggestion that they went there to take the fowl by force. And
to the evidence of 'Mampolokeng the deceased actually used
force when he came there.
The situation of the wound also seems to suggest that
the deceased was facing the accused when he was stabbed. If he was
from the accused and the accused is not left handed
the wound would have been on the right side of the body
of the deceased. However, if the accused grappled with the deceased
he was still holding the knife with his right hand it was
possible to stab him on the left side of the body. Be that as it may
finding of the Court is that the story of the accused may
reasonably possibly be true.
I come to the conclusion that the Crown has failed to
its case beyond a reasonable doubt.
The accused is found not guilty and he is discharged.
JUDGE 8th September, 1993.
For Crown: Mr. Semoko For Defence: Mr. Lebusa.
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