IN THE HIGH COURT OF LESOTHO In the matter
between: REX and
SEPINARE MOTSU 1st Accused
MOTSU 2nd Accused
MOTSU 3rd Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 26th day of February. 1993.
The accused are charged with murder it being alleged
that upon or about the 22nd day of November, 1989 and at or near Ha
the district of Maseru the said accused, one or the other or
all of them did unlawfully and intentionally kill Jobere Lenono. The
accused pleaded not guilty to the charge.
The post mortem examination report (Exhibit "B")
was handed in by the Prosecution in terms of section 223 (7) of the
Procedure and Evidence Act 1981 because the doctor who
carried out the autopsy is no long in this country. According to the
the cause of death of the deceased (Jobere Lenono) was: Head
injury with brain contusion. External appearance - (1) a deep cut
through the skull left temporal frontal region 6cm
with brain exposed. (2) 3cm wound extending down to the
maxilla over nasal (labial) fold left side.
The first witness called by the Crown is Tseliso Sesing.
He testified that he resides at Ha Lenono and his chief is Chief
(P.W.6). The accused are brothers, A1 is the youngest
while A2 is the eldest. On. the day in question he received
his chief that he and others must go to the
reserved pasture area and impound the cattle of one Pabala who is the
father of the accused.
The cattle were unlawfully grazing there
because they came from the village of Ha Motsu which is not under
Chief Lenono Lenono.
The village of Ha Lenono is situated on a plateau. On
the eastern side of the plateau is a donga which runs from south in a
direction. The people of Ha Lenono and their chief regard
that donga as the boundary between the two villages because the
of Ha Motsu lies on the eastern side of the donga. However,
the people of Ha Motsu say that the boundary is at the foot of the
and that the reserved pasture area in question is on the Ha
Motsu side of the boundary. There is a judgment of this Court in
between Moeketsi Lenono and Fako Motsu who are the
predecessors of the present chiefs of both villages respectively. The
did not determine the question of the boundary between the
two villages but awarded
rights Co trees and thatching grass at that area to
P.W.1testified that as he approached the area where the
cattle were to be seized he noticed that "Mualle, Palamang, the
(Jobere) and Mosiuoa were already driving the said cattle
towards Lenono's village. A1 and A2 were coming from Lenono's village
came infront of the cattle and blocked their way. As he was far
from them he did not hear whether there was any altercation between
the two accused and the men who were driving the cattle. At that time
A3 was not there. Immediately after that he saw that the two
were throwing atones at each other and the two accused had started
the stone throwing.
P.W.1says that he came to the cattle at the same time
with A3 who was coming from Ha Motsu. They both joined their
and participated in the stone throwing fight. They
were eventually overpowered by the accused and took to their heels.
and Mosiuoa ran in an easterly direction towards the
village of Ha Motsu. He (P.W.1) and the other members of his group
ran in a
northerly direction towards the river. The deceased and
Mosiuoa ran until they crossed the donga and were cornered between
and a fence of a yard belonging to one of the subjects of
Chief Motsu. As the accused were close behind them the stone throwing
because the deceased and Mosiuoa could go no further.
Seeing that their colleagues were in serious danger of being killed,
had run away towards the river came back and made a
desperate attempt to rescue their colleagues.
They threw stones at the accused until A2 ran away and
got into the village. P.W.1says that they advanced to where the
Mosiuoa had been cornered. When they approached he saw
the deceased rising from the ground. His face was covered . with
A3 threw a stone at him and it hit him on the head. The
deceased fell down again. At this stage A1 and Mosioua were still
stones at each other and finally they fought with their
sticks. At last Mosioua escaped and crossed the donga to Lenono's
After the deceased had fallen down as a result of being
struck on the head with a stone, A3 went to him while he was still
the ground and struck him on the head with a battle-axe
similar to Exhibit "1". It got struck into the skull. He
there and went to assist A1 but Mosioua escaped. P.W.1's
group ran away and crossed the donga to Lenono's side. A1 and A3
to the deceased and A3 pulled the battle-axe from the head
of the deceased. A2 was about 40 paces from them and asked them why
did not finish him off. After that all the accused went into the
P.W.1testified that he was armed with a stick which he
broke from a poplar tree on his way to where the cattle were
His colleagues and the accused were armed with
sticks. He saw Exhibit "1" for the first time when A3 hit
the deceased with
it. On the previous day Pabala's cattle had been
impounded for grazing at the same area and he paid for them without
Under cross-examination P.W.1denied that there was an
inter-grazing between the villages of Ha Lenono and Ha Motsu.
However, he admitted
that there was inter-ploughing. He said he did
not see where Exhibit "1" came from but he denies that A3
picked it up from
the ground when the deceased fell down. A3 never
bent down to pick it up. He just raised it up and struck the deceased
as soon as
he fell down.
P.W.2 Palamang Lenono testified that on the 22nd
November, 1989 he was instructed by Chief Lenono Lenono to go below
the village and
impound some cattle which were grazing at the
reserved pasture area. He was detailed with the deceased, Mosioua and
P.W.1 who remained
behind because he was milking his cows and joined
them while they were already driving the cattle in the direction of
While they were driving the cattle A1 and A2 suddenly
appeared from the trees where they were apparently hiding themselves
for the people of Ha
Lenono to come. P.W.2 was in the company of the deceased
and Mosioua. The accused first stopped infront of the cattle and then
throwing stones at P.W.2 and his colleagues. A1 was the first
to started throwing stones. P.W.2 and his colleagues reacted by
stones at the accused. A3 and P.W.1 joined the fight after
it had already started. A3 had appeared from the donga.
P.W.2 says that not long after the start of the stone
throwing the accused overpowered them forcing them to scatter in
The deceased and Mosiuoa were forced to run
away in the direction of the village of Ha Motsu. When they came to
the eastern side
of the donga the accused cornered them between a
fence and a donga. The stone throwing continued until P.W.1and P.W.2
their flight when they noticed that their colleagues
were cornered by the accused and were about to be seriously injured.
the donga and intervened by throwing stones at the
accused. At that stage A3 threw a stone at the deceased and struck
him on the
head causing him to fall to the ground. . He (A3) then
struck the deceased on the head with a battle-axe and it got struck
skull. It was only after chasing away P.W.2 and his
colleague that A3 went back and pulled the battle-axe from the skull
of the deceased.
After the accused had left and entered into the village
P.W.2 and his colleagues went to where the deceased was
lying and carried him to the western side of the donga. He had
the head and could neither walk nor speak. He was
eventually carried to the hospital in a vehicle but died on the way.
Under cross-examination P.W.2 admitted that at the
preparatory examination he said A1 and A2 belaboured the deceased. He
had not said
so at this trial because he had not been asked such a
question. He denied that other villagers from Ha Lenono joined in the
He says that they came after the fight and after the deceased
had already sustained the injuries.
P.W.3 Mosiuoa Lenono confirms that when the accused
overpowered them he and the deceased crossed the donga to Motsu's
side where the
accused cornered them between a fence and the donga.
During the fight he came face to face with A1. They fought with their
until A1 drew a sword and tried to stab him on the belly with
it. He blocked that blow with his right forearm which sustained a
P.W.1 and P.W.2 threw stones at A1 until he (P.W.3) got a
chance to escape but he was hit on the right ankle with stone when he
away. He passed the deceased lying on the ground but he had not
seen what had happened to him. He was already on the Lenono's side
the donga when he saw A3 go to the deceased and pull a battle-axe
from his head.
The first accused, Sepinare Motsu, gave a sworn
statement in which he said that on the 22nd November, 1989 he went to
the fields in
the morning. When he finished his work he drove his
father's cattle to the western side of the donga which divides the
Ha Lenono from that of Ha Motsu. He remained with the
cattle at the pastures until about 3.30p.m. when he drove them back
village on the eastern side of the donga. He did not reach his
destination because when he crossed the donga the men from Ha Lenono
came to him. They were the deceased, P.W.1, P.W.2, P.W.3 and one
'Mualle. The deceased said: "Hey, you boy leave those cattle
because I am coming to impound them." After insulting A1 the
deceased and his colleagues passed and went infront of the cattle.
They stopped them and attempted to drive them back to where they came
from. Each of them carried two sticks and in addition to that
deceased had a battle-axe.
A1 says that he had a stick and denies that he was
holding a sword.
A1 says that he was frightened and asked the deceased to
drive the cattle well and not to hit them. After he had uttered those
the deceased left the cattle and came to him. He raised up the
battle-axe and tried to hit him with it.He dived and avoided that
blow. Deceased's colleagues then started throwing stones at him and
attacked him with sticks. He looked back and saw A3 inside Maphoma's
yard. The deceased and his
colleagues retreated when they saw A3 but they continued
to throw stones. A1 last saw the deceased when he and A3 were
at each other. Deceased was hit with a stone and fell
down. It is not true that when he fell down A3 hacked him with
A1 says that eventually he and A3 managed to
escape and went into the village. It was only at that stage that they
met A2 who never
took part in the fight at all.
D.W.2 Mpiti Motsu is the third accused in this trial.
His version is that on the day in question he was returning home from
of work at Likolobeng. The time was about 4.00pm. He saw a
group of people from Ha Lenono. At the same time he saw cattle come
of the donga on their way to Ha Motsu. That group of people went
infront of the cattle and stopped them. There was one person who
driving the cattle when they were stopped. After that he saw that the
group from Ha Lenono was throwing stones at that one person
reacted and threw stones at them. A3 says that he ran to that place
because he wanted to see what was happening. When he
arrived there he
saw that the person who was being attacked by the group from Ha
Lenono was his brother A1. The group consisted of
P.W.3, the deceased and one 'Mualle. He joined on the side of his
brother and threw stones at the deceased's group.
At first he was in
Maphoma's yard but later jumped over the fence, took a stone and
threw it at the deceased. He hit him and he fell
A3 says that when he hit the deceased he was chasing A1
and had a battle-axe and a stick. The deceased dropped the
the stick when he fell down. A3 says that he rushed
to the deceased and when the latter tried to take the battle-axe, he
took it before the deceased did so. He struck him with it
and he fell down again. He (A3) pulled the battle-axe and walked
He denies that the battle-axe got embedded into the skull of
the deceased. He also denies that he left it there for some time and
came later to pull it out. The deceased's colleagues ran away when
he struck him with the battle-axe.
A3 says that he struck the deceased with the battle-axe
because he was trying to rise and was trying to take the battle-axe.
was a clear indication that the deceased was still fighting. He
did not aim at any particular part of his body but hit him on the
head because at that time the deceased turned his head towards him.
At the time he delivered the blow he was frightened because
was going into his own village. Furthermore the people of Ha Lenono
were still throwing stones. As the fight was already
in his own
village he had no where to run away to but had to defend himself and
his younger brother.
Under cross-examination A3 says that the deceased fell
down when he hit him with a stone. He tried to stand up but fell
finally stook up on his feet while the stone throwing
was still going on. He was wiping off blood from his
face. He was busy wiping his face when he (A3) struck him with
He says that it is correct that the deceased
was trying to pick up Exhibit "1" when he struck him. He
was still standing
but not upright.
The version of A2 is that he was not involved in the
fight. He was in the village when he heard noise from below the
village. He decided
to go there and find out what was happening. As
he walked in that direction he met A1 and A3. They explained to him
that the people
of Ha Lenono had invaded them. A3 was holding
Exhibit "1". He explained that he had struck a person with
it. He went
to the small cliffs overlooking the place where the fight
had taken place. He saw a person lying on the ground and the people
Ha Lenono were going to him.
It is correct that at the preparatory examination P.W.2
and P.W.3 are recorded as having said that when they arrived at the
pasture area where the cattle were grazing the three accused
were present and attending to them. However at the trial in this
they tell an entirely different story. They say that when they
came to the cattle were unattended. They say that the accused were
hiding in the trees and ambushed them as they drove the cattle to Ha
Lenono. This is a completely new story which was never raised
preparatory examination. It is a
very material issue on which the witnesses could not
have made a mistake. It seems to me that the Crown witnesses have
their evidence in this Court.
The Crown witnesses again attempted to mislead the Court
by saying that the same cattle were impounded on the previous day.
Lenono Lenono brought his receipt book covering the same
period. No receipt dated the 21st November, 1989 issued in the name
Motsu was found. It seems to me that the Crown witnesses
were simply not telling the truth. The Crown Counsel exposed them to
liars by asking Chief Lenono to bring his receipt book so that it
could be checked.
Mr. Thetsane, Crown Counsel, showed his impartiality by
producing the receipt book despite the fact that he noticed that it
support his case. He also submitted that the Court must
approach the evidence of the Crown witnesses with some caution
of them, except P.W.1, are close relatives of the
It is common cause that A1 and A3 took part in the fight
and threw stones at the Crown witnesses and that A3 hit the deceased
a stone and felled him. He finally struck him with a battle-axe.
The deceased died as a result of the injuries inflicted by A3.
only dispute is whether at the time he was
struck with the battle-axe he was still lying on the
ground or was already on his feet and trying to pick up the
A3 tried very hard to convince the Court that the
deceased was already standing when he struck him. His story is
nothing but a pack
of lies. It goes like this -
"Deceased was still trying to rise but falling
again. He finally rose or stood on his feet while the stone throwing
on. While we were throwing stones they ran away and I took
the battle-axe and hit the deceased. He fell down. He was standing on
his feet and was removing blood from his forehead. He was busy wiping
blood from his face when I struck him. It is correct that he
trying to pick up the battle-axe when I struck him. He was still
standing but not straight up. He bent to try to take it but
I took it
before him. It is true that at the time I hit him he was bending.
Before I went for the battle-axe he was still trying
to rise. He was
The story is a complete nonsense which cannot be
believed by this Court. Even if the Court were to take A3's story as
it stands it
is clear that the deceased was totally incapacitated by
the stone wound on the face. He was busy wiping his face at
the time he was struck with the lethal weapon. He posed
no danger to the A3. However the truth is that the deceased was lying
ground when A3 struck him with Exhibit "1".
The next question to be decided is the ownership of
Exhibit "1". This is very important because the Crown is
common purpose as far as A1 and A2 are concerned. The
evidence of the Crown witnesses is to the effect that the battle-axe
belong to the deceased and he was not carrying it on that
day. They saw it when A3 raised it and struck the deceased with it.
A1's version is that the battle-axe belongs to the
deceased. When the fight started the deceased drew it from his waist
to hit him with it. A3 says that when he hit the deceased
with a stone he dropped the battle-axe he was holding.
A1 is not a reliable witness because in his affidavit in
the bail application he deposed that A3 also threw a stone and hit
on the forehead. Deceased fell on the ground and as he
tried to rise A3 removed his axe and struck him therewith on the
his evidence before this Court he says that he never saw
when A3 removed the battle-axe and struck the deceased with it. He
battle-axe after the fight when A3 was carrying it.
It is true chat A3 behaved in a manner which seems to
suggest that the battle-axe was his property. He took it to his home
it in the house until the police came. He did not hide it
but merely gave it to the police when they demanded it. One would
expected him to take it to the chief and present it to him at
the same time the report was made. But failure by the A3 to do all
these things is not conclusive proof that the battle-axe belonged to
him. In most cases the people involved in murder cases usually
the murder weapons, I find it rather strange that if the battle-axe
belonged to him he would have kept it in his house.
Mr. Thetsane submitted that it is trite law that the
accused person need not convince the Court of the truth of his story.
being whether his story is reasonably possibly true. If his
story is reasonably possibly true the accused person is entitled to
See: 1. R .v. Difford 1937 A.D. 370
2. S. v. Jaffer 1988 (2) S.A. 84 at pp.88-89.
" even if an accused's explanation be
improbable the Court is not entitled to convict unless
it is satisfied not only that the explanation is improbable but
reasonable doubt it is
R.v.Difford (supra) at p. 373.
He submitted that their story viewed in the light of the
Prosecution's evidence which was not shaken cannot be reasonably
true. I do not agree with this submission because I found it
as a fact that the Crown witnesses lied and embellished their
as compared to what they said at the preparatory
examination. The story of A2 may reasonably possibly be true that he
near the scene of the fight, at least during the fight.
There is no doubt that after the fight he did go there and found hie
The story of A1 is also reasonably possibly true. I find
it unbelievable that two of the Crown witnesses ran towards the
the enemy when the accused allegedly overpowered them. The
story of A1 is more probable than that of the Crown witnesses that he
had already driven the cattle to the other side of the donga when the
people of Ha Lenono came to him.
I have come to the conclusion that the Crown has failed
to prove beyond a reasonable doubt that Exhibit "1" is the
of A3 and that on the day in question he was carrying it and
that the other accused were aware that he was carrying such a weapon.
A1 and A2 must be given the benefit of doubt and be acquitted.
Regarding A3 I entirely agree with the submission that
he appreciated that his act might result in the death of the deceased
recklessly as to whether such would result or not. In other
words he had the requisite intention for murder in the legal sense.
(S. v. Mini 1963 (3} S.A. 188 at p. 192).
Judgment:- A1 and A2 are found not guilty and
are discharged. A3 is found guilty of murder. My assessors agree.
26th February, 1993. For Crown - Mr Thetsane For
Accused - Mr. Ngakane.
I found it as a fact that A3 was returning from hie
place of work when he noticed that a group of people of Ha Lenono
his younger brother, A1, He immediately to intervene
and defend his brother. During the fight he fatelly injured the
was no premedidation (R. v. Tailor, 1949 (4)
18 S.A. 702 (A.D.) at p. 705).
This is a case of dolus eventualis and not of dolus
(S.v. Siqwahla 1968 (4) S.A. 498 (A.D.) at p. 505 D -
The fact that there has been a boundary dispute between
the two villages over a long period of time is a factor which should
into consideration when deciding the question of extenuating
I have found that there are extenuating circumstances.
Sentence: Twelve (12) years' imprisonment. Order: Exhibit
"1" to be destroyed by the police.
JUDGE 26th February, 1993.
For Crown - Mr. Thetsane For Accused - Mr.
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