IN THE HIGH COURT OF LESOTHO IN THE MATTER
TLOKOTSI RASEOTSANA RESPONDENT
Delivered by the Honourable Chief Justice Mr. Justice
J.L. Kheola on the 30th October, 1995.
The accused is charged with two counts of murder. In the
first count it is alleged that between the 1st day of July, 1991 and
8th day of July, 1991 (the exact date to the prosecutor unknown)
and at or near Matsieng in the district of Maseru, the said accused
did unlawfully and intentionally kill Mpho Raseotsana. In count 2 it
is alleged that between the 1st day of July, 1991 and the 8th
July, 1991 (the exact date to the prosecutor unknown) and at or near
Matsieng in the district of Maseru, the said accused
and intentionally kill Mpae Raseotsana.
It is common cause that the deceased persons are the
sisters of the accused. He was older than them. They were both
unmarried as well
as the accused. However, Mpho had a small child.
The accused and his sisters lived in a flat roofed house with two
rooms. One room
was used by the deceased as a bedroom.
Another room was used as a kitchen. However, at night
the accused used it as his bedroom. The bedding would be made up in
to enable the deceased to use it as a kitchen.
It is common cause that the mother of the accused was
working in the Republic of South Africa at the time of the deaths of
and had been working there for some time before the
present tragedy struck her family. She used to remit money to her
the end of every month for their maintenance. The exact
amount of money she remitted has not been proved because she did not
evidence in the present trial. According to the Crown evidence
the remittances were made to the accused who was expected to utilize
them to provide the necessaries of the family. It has been alleged
that the accused started squandering the money and not using it
the purpose for which it was intended. As a result of this unbecoming
behaviour on the part of the accused his mother stopped
money to him. Instead she started sending it to Mpho (deceased in
The change did not please the accused and he suddenly
developed a very hostile attitude towards the deceased persons. He
fought and quarrelled with his sisters especially at the
end of the month when the money came. The fights and quarrels were so
that witnesses have lost count of them.
The dead bodies of the deceased were found by Kobeli
Raseotsana on the 8th July, 1991. He is the elder brother of the
accused and had been living in Leribe for several years.
On the day in question he arrived at his parents' home and noticed
front door was open. When he entered into the kitchen he saw
a bedding on the floor which had not been made up and yet it was 1.00
p.m. In the bedroom he found the dead bodies of the two deceased.
Mpho's child was found in the bedroom. She was still alive but
exhausted and weak. She was taken to the hospital/clinic and has
Kobeli Raseotsana described the positions in which he
found the bodies. Mpho's body was lying on its back on the bed which
the window. Mpae's body was on a bed behind the door. He was
so shocked that he did not examine the bodies but he went out of the
house and raised an alarm. Many people came including P.W.4 who is
the Chieftainess of the area.
P.W.2 testified that the hammer (Exhibit 1) which was
subsequently allegedly pointed out by the accused was his property.
it in the house when he went to Leribe.
P.W.3 Raseotsana Raseotsana is the uncle of the accused.
His evidence is that when the mother of the accused went to work in
of South Africa he was appointed the caretaker of the
deceased and the accused. His house was not far from the home of the
of the accused and the deceased. He used to visit them on a
daily basis. He testified that he last saw the deceased and the
on the 4th July, 1991. On that day he was returning from a
local court where he had a civil case.
He passed near the home of the accused. He saw the
accused sitting outside the house. Mpae was outside the house and
washing a pot.
He passed and went to his home. He then saw Mpho pass
near his home carrying a 20-litre-tin returning from the cafe. She
that their mother had sent her money with which to buy
groceries. She told him that she and Mpae were going to Thaba-Chitja
their grandmother lived. They were going to launder for her.
For the rest of that week he did not see the accused and his sisters.
On the following Monday he was returning from Makeneng
when he saw many people at the home of the accused and his sisters.
obvious to him that there was something amiss. He met Sgt.
Mongaula (P.W.I) who explained to him what had happened. He went into
the house and saw accused's bedding on the floor. There was a big
kettle on a primus stove. He examined the bodies of the two deceased
persons; Mpho had a depression on the head, her face was green and
there was foul smell in the house. Mpae had a depression on the
her left ear, lower lip and two front teeth were missing.
The two corpses were taken to the mortuary. Accused was
not there when the corpses were found. He did not attend the funeral
sisters. He asked some of his relatives living in the
neighbouring villages to help him in the search for the accused.
four months one of such relatives, a certain Mokiza,
arrested the accused and brought him to him (P.W.3) . The accused was
and Mokiza was accompanied by other people.
P.M.3 says that when he saw the accused he asked him why
he was handcuffed. The accused said "I killed my two sisters and
child". P.W.3 says that he asked the accused whether he
was the one who killed them; the answer was "Yes". He says
that when the accused uttered those words he had not been assaulted
or forced in any way to make that admission.
P.W.3 says that a few days later he was at his home when
he was called to the home of the accused by the police. When he
the accused was sitting in the buck of a vehicle. The
police ordered him to alight. He went into the house and took Exhibit
inside the box and handed it over to the police. They returned
to the vehicle and left with him (Accused).
Accused and deceased no longer lived happily together.
The reason for the unhappy relationship was that at the beginning
used to send money to the accused so that he could buy
the necessaries for the family. As time went on the accused started
the money and buying nothing for the family. Their mother
decided to make a change and then sent the money to Mpho. They
fighting and quarrelling with each other because the accused
would demand money from Mpho and when she refused to give him money
the trouble would start. P.W.3 says that he often confronted them and
sometimes the accused would show some understanding. His complaint
was that sometimes large sums of money were sent to them but they did
not give him anything. He often invited the Chieftainess when
the accused with his late sisters.
Under cross-examination P.W.3 denied that he met the
police and the accused at the gate after the hammer was taken from
He denies that he even asked the police whether that was
all they found. He says that the injuries were not consistent with
of a hammer alone, other weapons must have been used. He says
that he uttered those words while they were still in the house
P.W.4 Chieftainess 'Mats'oeu Letsie testified that she
is the Chieftainess of Ha Mafafa where accused lives. She knew the
the accused very well because she is her subject. For many
years the mother of the accused has been working in the Republic of
Africa. P.W.4 alleges that during the absence of the accused's
mother she was also in charge of the accused and his sisters. She
aware of the frequent fights between the accused and his sisters.
According to her the cause of these fights was that the accused
wanted that their mother should send the monthly maintenance
allowance to him and not to his sister Mpho.
On the 8th July, 1991 P.W.2 came to her and reported
that there was a dead body in their parents' house. She raised an
alarm and went
to the house accompanied by some people.
On her arrival there she found bedding in the kitchen,
accused's shirt was hanging from a chair, there was a
kettle on a primus stove. In the bedroom she saw the dead body of
Mpho on a
bed near the window; the dead body of Mpae was on a bed
behind the door. There was a child behind the curtain. Her face was
and she was barely alive. Mpho's body had a big depressed
wound on the forehead as well as at the back of the head. The body
already turning green in colour as if it was burnt. There were
abrasions on the private parts.
Mpae's body had blood on the ear, the earlobe was
missing, there was a wound near the same ear, a wound at the back of
the head, two
front teeth and the upper lip were missing.
P.W.4 says that about three months after the death of
the deceased the accused was brought to the village by his relatives.
in a vehicle with many people. He appeared to be in a good
condition and had no injuries. When she looked at him he cried. She
him why he was crying, he said: "It is because I killed my
three sisters." He explained that he meant the deceased and
Rethabile (Mpho's child).
Dr. Puleng Ramatabooe (P.W.5) testified that she
performed post mortem examination on the bodies of the two deceased
to her, Mpho Raseotsana died as a result of skull
fracture and bums which covered 40% of her body. The burns were on
the head, anterior
chest, abdomen, perineum and medial thighs. There
was gross swelling of the abdomen and the neck which was dislocated.
Mpae Raseotsana died as a result of skull fracture with
intracranial haemorrhage. She had dry blood on the face and head,
right ear, laceration of the upper lip, multiple scalp
stabwounds, cut upper lip and one front tooth was removed.
The defence of the accused is an alibi. He
testifies that he left his parents' home at about 6.00 a.m. on the
3rd day of July, 1991. At the time of his departure his two
and Mpho's child were alive and well. He told them where he was going
and asked them to tell people who might look for him
where he had
gone. When he left his home his destination was roads camp at
Teyateyaneng. He was going to look for a job. On his arrival
stayed with one Samuel Mpota who is his relative. Samuel Mpota was to
help him find a job at the roads camp where he was
arrived there on the 3rd day of July, 1991 and stayed with Samuel
Mpota for two weeks while attempts were being made
to find him a job.
At the end of two weeks his attempts to find a job had not been
successful. He decided to move on and went to
Kolonyama where he met
one Mphethe who got a job for him at Fobane. He was employed as a
herdsman by one Chaka Sekeleoane. He worked
there until November,
1991 when he decided to go home for a while and come back.
He decided that before he went to his home he must call
at Qeme at the home of one Mokiza who is his relative. He was well
by Mokiza and decided to spend the night there. That night
Mokiza invited many men who came to his place and arrested him
and accused him of having killed his sisters and
Mpho's child. He categorically denied the charge. The
produced handcuffs and handcuffed him warning him to tell the truth.
admitted that he killed his sisters. He was taken to the
Chief's place where he spent the whole night. He was not assaulted by
during his detention.
In the morning he was taken to his home village. He
travelled in a van accompanied by not less than five men including
vehicle was stopped at the cafe and Mokiza called P.W.3
Raseotsana. When the latter arrived he asked the men where they found
(accused) . P.W.3 then borrowed a stick from one of the men and
hit him on the head once. The men who were accompanying him
and stopped P.W.3 from assaulting him. Chieftainess
'Mats'oeu Letsie arrived at a later stage. She asked where they found
accused denies that he confessed to the Chieftainess and to
P.W.3 that he had killed his sisters and Mpho's child.
The accused says that a few days after he had been
handed over to the police he was taken to his parents's home. On
there they went into the bedroom. One of the policemen
who accompanied him went straight to his (accused's) suitcase, opened
took out a hammer (Exhibit 1). He denies that he pointed out
the hammer. He did not know who put it in his suitcase. He denies
he uttered the words to the effect that it was the weapon he had
At the close of the defence case I decided to call
Mpota but I made a mistake and called the wrong person
as a court witness. He is Ts'epo Raseotsana whose evidence was
Section 202 (2) of the Criminal Procedure and
Evidence Act 1981 provides that
"The court shall subpoena and examine or recall and
re-examine any person if his evidence appears to it essential to the
decision of the case."
Once I decided that the evidence of Samuel Mpota was
essential to the just decision of the case, subsection (2) makes it
that I call such a person.
Samuel Mpota is a witness called by the court. He
testified that in 1991 he was working at Teyateyaneng in the Roads
a labourer. He lived in the roads camp at Ha Ramochini
where a corrugated iron sheet tent was allocated to him. His tent was
outside the camp. He said that when the sisters of the accused
died he was still stationed at Teyateyaneng. He heard about their
deaths over the radio. It was on a Monday when he heard the
At that time the accused was his guest and he was
staying in his tent with him. He told him (accused) that he heard
over the radio
that his sisters had died and that he must go home. He
gave him R10.00 for transport to return home. The accused left on the
day which was a Tuesday. At the following weekend he
(witness) went to his home to attend the vigil and burial of the
By the way, Samuel Mpota's home
11 is at Ha Mafafa i.e. he and accused come from the
Samuel Mpota says that when he arrived at home he was
surprised because the accused was not there despite the fact that he
him money for transport to enable him to go home and attend
his sisters' funeral. He asked P.W.3 the whereabouts of the accused.
It was clear that accused never arrived at his home.
The evidence of Samuel Mpota has established that it is
correct that the accused was at Ha Ramochini in Teyateyaneng when his
were reported dead. In other words his alibi has been
established. The second thing which has been established beyond any
reasonable doubt is that the accused heard about the
deaths of his
sisters while he was still staying with Samuel Mpota. In his own
evidence he said that he left his home on the 3rd
July, 1991 and
arrived at Samuel Mpota's place of work on the same day. He then
remained there for two weeks. That is to say. he
was there until
about the 17th July, 1991 which was a Wednesday.
The question is : Why did the accused not attend his
sisters' funeral? He knew that they had died because Samuel told him
even kind enough to give him money for transport. Samuel went
to the funeral but the accused was not there. The only reasonable
to be drawn from his strange behaviour is that he killed
his sisters and was afraid that he would be arrested.
Mr. Fosa, counsel for the defence, submitted that
Samuel Mpota is not a reliable witness because in his
evidence-in-chief he said that the
accused did not tell him the
reason why he had paid him a visit. In cross-examination he said that
he had given the accused his address
so that he could get in touch
with him (Samuel Mpota) from time to time to find out if Samuel had
found a job for him. In other words
the accused had come to find out
if a job had been found for him.
I did not have the impression that Samuel was
deliberately misleading the court. The way the question was framed by
the court may
not have been clear to him. He struck me as a reliable
witness and gave his evidence well and in a straightforward manner.
It seems to me that the Monday on which Samuel heard the
obituaries must have been the Monday following the discovery of the
bodies. It was on the 8th July, 1991 when the bodies were found
and the obituaries over the radio could not have been made on the
same day. They must have been made during the course of that week and
Samuel heard them on the 15th July, 1991. He says that the
had been with him for only three days. Which means that if the
accused left his home on the night of the 4th July, 1991 or
morning of the 5th July, 1991, he did not go straight to Samuel's
place. He arrived there on the Saturday following the discovery
I have come to the conclusion that the accused told this
court lies about his movements from the time he left his
home until he came to Samuel's place of work. He lied because he.
that before he left his home he killed his sisters.
As I understand it the Crown's case rests partly on
circumstantial evidence and on some admissions allegedly made by the
he was arrested. I shall first deal with the law
regarding the approach the Court must adopt towards circumstantial
The leading case is Rex v. Blom. 1939 A.D. 188 at p.p.
202 -203 where Watermeyer,J.A. said:
" In reasoning by inference there are two
cardinal rules of logic which cannot be ignored:
The inference sought to be drawn must beconsistent
with all the proved facts. If itis not, the inference cannot be
The proved facts should be such that theyexclude
every reasonable inference from themsave the one sought to be
drawn. If theydo not exclude other reasonable inferences,then
there must be a doubt whether theinference sought to be drawn is
In Rex v. De Villiers. 1944 A.D. 493 at p.p. 508-509
Davis A.J.A. said:
" The court must not take each circumstance
separately and give the accused the benefit of any reasonable doubt
as to the inference
to be drawn from each one so taken. It must
carefully weigh the cumulative effect of all of them together, and it
only after it has done so that the accused is entitled
to the benefit of any reasonable doubt which it may have as to
inference of guilt is the only inference which can
reasonably be drawn. To put the matter in another way; the Crown must
the Curt, not that each separate fact is inconsistent with
the innocence of the accused, but that the evidence as a
whole is beyond reasonable doubt inconsistent with such
Mr. Thetsane. counsel for the Crown, has given a
list of what he calls or regards as facts which have been proved.
They are as follows:
that the accused was last seen on the 4thJuly, 1991
and so were the deceased persons.
that the accused decided to leave his homeso
unceremoniously that he could not informhis uncle or his sisters
with whom he wasstaying.
that in an attempt to absolve himself fromliability
the accused attempts todemonstrate that when he left his
home forT.Y. everything was still in order.
that the accused unashamedly lied beforethis
Honourable Court to say that he went toT.Y. looking for a job
where he met Mpotaand his cousin respectively. This turnedout
to be a lie as his cousin had alreadyleft for Thabana-Morena at
that when he is accused, according to him,by Mokiza
of having killed the children hedoes not demonstrate a. single
sign of marvelat such a serious allegation but merelyresponded
by saying he never killed anychildren. This was a clear
indication thathe knew who these children were.
that the accused is unable to account forhis
suspicious movements from the time heleft his home till he was
arrested by Mokizawho handed him over to his uncle.
P.W.3 testified that he last saw the deceased and the
accused on the 4th July, 1991. He says that he was
passing near accused's home when he saw him sitting outside the
house. Mpae was
also outside the house washing a pot. Later Mpho
passed at his (P.W.3's) home and she told him that their mother had
sent them money.
She was carrying a 20-litre tin of paraffin. She
told him that their mother had sent them money with special
instructions that she
must buy soap and go to Thaba-Chitja and wash
their grandmother's clothes. Mpho said that they would go to
Thaba-Chitja on the following
day. He never saw the deceased again
until on the 8th day of July, 1991 when their bodies were found. He
never saw the accused until
November, 1991 when he was brought to him
by Mokiza under arrest. P.W.3 explained that when he saw the accused
and Mpae outside their
home he was returning from the court where he
had a case.
It seems to me that the 4th day of July, 1991 was a day
P.W.3 could remember well because a very important thing happened to
that day. He had a case in a court and was returning from that
court case when he saw the accused and his sisters. P.W.3 impressed
me as being a reliable witness who gave his evidence in a
straightforward manner. It is significant to note that the accused
his date of departure from his home as the 3rd day of July,
1991. He must be aware by now that there is satisfactory evidence by
reliable witness that on the 4th July, 1991 he was still at his home.
He was seen in the company of Mpae.
Mr. Thetsane submitted that the accused on at
occasions is alleged to have admitted that he killed his
sisters and Mpho's child. These occasions were as follows:
(i) when he first met his uncle; (ii) when he first
met the Chieftainess; (iii) when he was later confronted with
after he had produced it.
He submitted that the only issue for determination in
the light of this statement which was repeated at divers times will
or not such a statement is admissible. He referred to The
South African Law of Evidence by Hoffmann and Zeffert, 4th edition
211 -212; David Petlane v Rex, 1971-73 L.L.R. 85 at pp.
I agree with that submission. The statements made by the
accused are admissible. They were not a confession made to a
mere admissions which are not equivalent to a plea of
guilt in a court of law. The accused could later raise several
as self-defence or provocation or insanity. In the
present case the accused has not raised any such defences. His
defence is that
he never made such admissions. I carefully observed
P.W.3 Raseotsana Raseotsana and Chieftainess 'Mats'oeu Letsie when
in the witness box and they struck me as being honest and
reliable people who intended to tell the court the truth. The
made no such impression.
The next important issue is whether the statement was
and voluntarily made. P.W.3 said that when he found the
accused in a vehicle with Mokiza and others he asked him why he was
Accused said that he had killed his two sisters and
Mpho's child. P.W.3 asked him, "Are you the one who killed
said "Yes." P.W.3 further said that the
accused had not been assaulted before he made the admission. I have
no doubt that
the accused is not telling the truth that P.W.3 hit him
with a stick on the head. The police did not see any injury on his
did he report to them that he had been assaulted.
Chieftainess 'Mats'oeu Letsie said that when she came to
the vehicle the accused was sitting in it. When she looked at him he
crying. He said it was because he had killed his sisters and
Rethabile. She said that at that time the accused did not have any
It seems to me that the discovery of the hammer (Exhibit
"1") in the house was of no important significance. The
used to be kept in the same house long before the deceased
were killed. I do not think that the court must rely on its discovery
as the pointing out as contemplated by section 229 (2) of the
Criminal Procedure and Evidence Act 1981.
Taking into account all the circumstances of this case I
have come to the conclusion that the only reasonable inference to be
from the proved facts is that the accused killed the two
deceased persons in the counts against him. Judging from the extent
injuries and brutal way in which the deceased were
killed I have no hesitation to hold than this is a
proper case of dolus directus.
For the reasons stated above I have come to the
conclusion that the Crown has proved its case beyond a reasonable
doubt. I find the
accused guilty of the murders of Mpho Raseotsana
(Count I) and Mpae Raseotsana (Count 2).
J.L. Kheola CHIEF JUSTICE
30th October, 1995
Section 296 (1), (2) and (3) of the Criminal Procedure
and Evidence Act 1981 read as follows:
Where the High Court convicts a person ofmurder,
it shall state whether in itsopinion there are any
extenuatingcircumstances and if it is of the opinionthat
there are such circumstances, it mayspecify them.
In deciding whether or not there are anyextenuating
circumstances, the High Courtshall take into consideration the
standardsof behaviour of an ordinary person of theclass of
the community to which the accused
(3) Failure to comply with the requirements of
sub-section (1) shall not affect the validity of the verdict or any
as a result thereof.
The accused was born in the rural area of Lesotho and he
grew up in that area. He attended school until he reached the
but did not complete his Junior Certificate. Like
the community to which he belongs the accused is not a sophisticated
was the elder brother of his late sisters and regarded
himself as not only the heir but also a person who was a caretaker of
sisters in the absence of his mother. It must have appeared to be
a demotion in status in his family when Mpho was made to manage
financial aspects of the family. He now had to beg for money from
her. A request which was refused by Mpho.
The accused must have felt that he was being insulted by
the behaviour of his mother. The quarrels and fights which he had
sisters had been going on for a long time. In South African
Criminal Law and Procedure, Vol. II by Hunt, Revised 2nd edition by
at p.p. 381 - 382 the learned authors say:
"It is clear that provocation short of what is
required to negative guilt may constitute an extenuating
X's emotional instability may be such, as a
result of a series of events spread over a long period of time and
not strictly amounting
to 'provocation', as to amount to an
extenuating circumstance. In R v Von Zell, for instance, one of the
specified by the Appellate Division was:
the strains and stresses to which appellant was
subjected because of his relations with his wife and daughter,
because of his wife's
desertion and because of the legal proceedings
which she instituted against him.'"
I have also considered the question of youthfulness. At
the time of the commission of the offence the accused was already 21
of age. It has been held that youthfulness may itself amount to
an extenuating circumstance (S. v.Manyathi 1967 (1) S.A. 435 (A.D.)
at pp. 438 - 439) . It is trite law that youthfulness applies to
persons of 18 years of age or more. I am of the view that the accused
was still immature and lacked experience of life. I do not think that
he acted from inherent wickedness. He was under emotional stress
because of the fights with his sisters that have been going on for a
I have come to the conclusion that the cumulative
effects of the points I have stated above is that there are
In mitigation of sentence I took into account that
The accused is a first offender.
He has been in custody awaiting trial fornearly
Sentence: Count 1 : Twelve (12) years' imprisonment.
Count 2 : Twelve (12) years' imprisonment. Sentences shall run
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