IN THE HIGH COURT OF LESOTHO
In the matter between:
PITSO MOLOLO ACCUSED
Delivered by the Honourable Chief Justice Mr. Justice
J.L. Kheola on the 6th day of December. 1999
The accused is charged with the murder of Tsotleho
Mololo upon or about the 24th day of May, 1988 and at or
near Ha Kali in the district of Mafeteng.
He pleaded not guilty.
P.W.1 'Makhafa Mololo is the mother of both the accused
and the deceased. On the night in question she was sleeping in her
the accused arrived.
2 He was drunk and reported to her that the deceased had
fought with him. She said she would confront them to-morrow in order
their quarrel. He left and she thought he was going to his
home. He came back accompanied by one Thabo and he again said that he
fought with the deceased and that the latter had fallen down. They
left and took the deceased to his home.
On the following day P.W.1 saw the deceased and noticed
that he was seriously ill due to the injuries inflicted by the
was taken to Mafeteng hospital where he died about two or
three days later.
P.W.2 Seqao Namane testified that on the 24th
day of May, 1988 he was with the deceased who wanted the accused to
buy beer for him. The latter had just arrived home from the Republic
of South Africa where he worked. When they met the accused the
deceased repeated several times that the accused should buy beer for
him. At one time the accused even threatened to kill P.W.2 and to
take his dead body to the mortuary. P.W.2 says after this threat
accused and the deceased left for their home. After he parted with
them he heard the sound of sticks indicating that the brothers
fighting. He went to the chief's place and reported the matter. The
chief said that he would attend to that matter on the following
When they parted the accused and the deceased were armed with
3 sticks. He did not see the fight between the accused
and the deceased except hearing the sound of sticks indicating that
According to the post-mortem examination report the
death of the deceased was caused by a fracture skull with epidural
In his defence the accused testified that on the day in
question the deceased found him at the home of 'Maketso. He demanded
the accused must buy beer for him. Accused said he did not have
money. The deceased persisted until he gave him M5-00. Accused left
that place and went to the home of 'Mamosala. While he was there he
heard the deceased and P.W.2 speaking angrily that they were
to assault him. He asked 'Mamosala to open another room for him so
that they could not see him. After some time he came out
of that room
because the deceased and P.W.2 were making a lot of noise. Deceased
said that the accused was silly because he refused
to buy beer for
him. He said that he had given him money with which to buy beer.
The accused threatened to assault them. They left and
went to their homes. P.W.2 came back running and holding a stick and
However his sister arrived and took him home before he could
use the weapons he had fetched from
4 his home.
The deceased also came back. He was holding a stick and
delivered several blows try to hit the accused. The latter warded off
blows until the deceased's stick broke. Accused says that after
the stick of the deceased had broken he went to his home and reported
to P.W.1 that the deceased was fighting against him. He got out of
the house and went to the kraal. The deceased arrived there carrying
a stick and a sword. He delivered blows with the sword but the
accused managed to ward them off. The accused delivered one blow with
a stick aiming at the head of the deceased. That blow landed on the
left ear. He fell down. One Nkoe came and the deceased was taken
the chiefs place. On the following day the deceased was taken to
Mafeteng Hospital where he died two days later.
It is common cause that on the day in question the
accused and the deceased were drunk. It is also common cause that the
was too aggressive towards the accused and provoked him as
much as he could. The accused tried all he could to appease his
and even gave him money. They fought twice but the crucial
and decisive fight was the second one at the kraal. When the deceased
found the accused at the kraal he delivered several blows with a
sword at the
5 deceased. The latter warded them off. He then hit the
deceased on the left ear
fracturing the skull.
The accused was viciously attacked by the deceased
without any provocation. He (accused) was entitled to defend himself.
In my view
he did not exceed the bounds of self-defence because he
hit him only once, but that blow caused the death of the deceased.
In R v. M. 1946 AD. 1033 at p. 1027 Davis, A.J.A. said:
" the court does not have to believe the defence
story, still less does it have to believe it in all its
details; it is sufficient if it thinks that there is a reasonable
that it may be substantially true."
I have come to the conclusion that following the
outrageous behaviour of the deceased towards the accused, there is a
that the defence story may be substantially
6 I find the accused not guilty and he is discharged.
My assessors agree.
J.L. KHEOLA CHIEF JUSTICE
6th DECEMBER, 1999.
For Crown: Miss Nku For Accused: Mr. Mafanfiri.
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