IN THE HIGH COURT OF LESOTHO In the matter
vs MATLOU MAKARA
JUDGMENT Delivered by the Hon. Mr Justice ML.
Lehohla on the 2nd day of June, 2000
The accused stands charged with the crime of murder, it
being alleged that on
or about 7th January, 1996 and at or near Com
Exchange in the Leribe District he did unlawfully and intentionally
kill one Selala Putsoa.
The accused pleaded not guilty to this charge.
The preparatory depositions of : PW1 Lefeela Abiel
Putsoa and PW7 D/Trooper Kharafu were admitted on behalf of the
defence and the
Crown accepted the admitted depositions.
2 Because the reasons why the post mortem report of
Doctor Ali who examined
the deceased did not accord with provisions of Section
227(1) of the Criminal Procedure and Evidence Act 7 of 1981 the Crown
under the necessity to call PW8 Mr Lebeta the Senior
Prosecutor who had led evidence at the Preparatory Examination of
It was thanks to PW8 that the Court learnt that actually
the doctor who had performed the post mortem examination on the
was a foreigner and had long left Lesotho for good at the
time the Preparatory Examination was held. The evidence of PW8
gave a different complexion to the Magistrate's inadequate
and blunt statement recorded at page 9 of the Preparatory Examination
record that "the Senior Public Prosecutor informs court that the
medical doctor who carried out the post mortem upon the deceased
herein is not able to come to court". Emphasis supplied by me.
I may just point out that among acceptable reasons set
out in Section 227(1) the one indicated in italics above forms no
The admitted evidence of PW1 is to the following effect:
viz the deceased was his son. He gave the son's age as 19 years. PW1
a report of his son's death and attended the post mortem
examination conducted on the deceased on 26th January,
PW1 later buried the remains of his son.
The admitted depositions of PW7 could be summarised as
follows : PW7 is a Detective trooper who at the time was stationed at
Police Charge Office.
While on duty on 8th January, 1996 he received a report
from Corn Exchange. He immediately set out for Com Exchange. He met
at the latter's home. He asked him for an explanation
after introducing himself to him, explaining the nature of his
that day and giving him the necessary warning against
The accused handed over to PW7 a "Lebetlela"
stick which he explained he had used in a fight with the deceased.
PW7 took away the stick which he hoped to later hand to
the court below as an exhibit but unfortunately failed to find it
place of custody in the Police store-
4 room for exhibits.
PW7 was also handed a home-made knife by the accused who
said it belonged to the deceased. This was handed over in the court
and marked Exhibit "1".
PW7's further investigations of the case revealed that
the deceased had not used this knife in his fight with the accused.
arrested the accused and gave him a charge of murder
of the deceased.
PW5 Kapare Ramaqele gave sworn evidence before this
Court. He said he stayed at "C.X" at Mafotholeng. He knew
as they stayed in the same village. He said he knew the
accused in the same way.
Asked to relate the events of 17-01-95 if he knew and
could recall them he said that he, the deceased and PW6 Isaac Lieta
under a tree shade. The tree belonged to PW4. This was
during the day.
While thus seated with his companions mentioned above
PW5 saw the accused come and go past where they were. The accused
the direction of his home
5 leading to Moeketsi's shop. When the accused was going
past nearby the deceased
asked 50c of him and the accused's response was in the
nature of a question whether the deceased knew him to be working. The
responded by saying it was not because the accused was
working that he was asking 50c of him. All it was, he explained, was
that he was asking for it.
The accused then made for his place of employment at
Mamoeletsi's place where he was a hired herdboy looking after stock.
At the time
the accused was not carrying anything in his hands.
The trio stayed for a while there. But after some thirty
minutes the accused emerged in company of three dogs also carrying a
while at the same time shouting that Selala the deceased should
wait there. To all appearances as far as PW5 was concerned the
seemed to be in a fighting mood. PW5 testified that the trio
ran away when they saw the accused approach in the manner just
PW6 corroborated the aspect of the trio running away; but
he was unable to say why they did so without immense probing. In fact
anything from him was an uphill task. He didn't know where
Muvango which he claimed he came from was. He thought it is in
though you have to go past Pretoria from Maseru to reach it.
6 Further that the Republic of South Africa is in
Lesotho. Indeed the Court recalls its own agony it underwent in order
to drag from
him if the pace kept by the accused when next he
approached was the same as the former and whether it wasn't in fact
of the stick and the increase in the pace that caused
them to run away. His evidence is thus dismissed as of a dullard who
know what his business was in Court. It dawned to this Court
that this was so during the first five sentences he uttered when
to testify. Though to me he looked hardly 21 he insisted that
he was aged 82. Asked if he thought he is the same age or older than
one of my assessors who is 80 he realised that he had exaggerated his
age by an enormous margin albeit that he is illiterate. The
his evidence did not detract from such flights of fancy as pointed
out above. The disturbing feature was the facility with
churned it from his mouth.
However the clear testimony of PW5 inasmuch as it has
the ring of truth to it and supported as it is by logic and common
to be enough to be relied upon as giving assistance to
the Court in its endeavour to discover the truth in this matter.
PW5 said the accused who appeared to be in a fighting
mood was less than a
7 100 metres from the trio when he shouted. This coupled
with other factors mentioned above makes sense as to why the trio ran
PW5 said the deceased and PW6 ran towards Moeketsi's
home while he himself ran in a different direction towards the comer
yard. It is while in this position that he was able to
see his two companions as they ran away. He couldn't at this stage
accused because he was obstructed from view by Stanley's
house and trees immediately around it. However the accused was still
for the deceased to come so that they could talk.
PW5 saw the deceased go down through the gate; and as
PW5 had climbed the rise from the comer he had turned the deceased
and the accused
fell within his view. They were standing and were not
far apart, he said. In fact the distance separating the two was given
metre; while PW5 who was observing all this was 50 paces away
at the time. PW5 says the accused was shouting and saying in a raised
voice "do you know me to be working". Saying so the accused
had raised his stick at the deceased.
Then PW5 said he saw the deceased take from around his
shiny. Then the deceased turned and ran away. The
accused gave chase.
But when the deceased ran past Maletlala's hut he
tripped and fell. The accused was chasing after him still. He caught
up with the
deceased and fetched him three blows with a stick.
PW5 called for Moeketsi the owner of a nearby shop to
come and help. When Moeketsi came out PW5 who was just a small boy in
of fright ran away. He learnt later that the deceased was
taken to hospital. He said the nearest he came to the scene when he
the observation of the blows he saw being delivered was about 20
Told by Mr Mpaka for the defence that the accused's
story is that the accused didn't respond when deceased asked 50c of
time ever PW5 was adamant that the accused's response was
"Do you know me to be working".
PW5 denied that the accused proceeded without responding
to where he was staying.
9 PW5 denied that from where the accused was staying the
latter was going to
the shop to buy chewing gum.
The story put was that the stick the accused was
carrying was Potlaki's and he was returning it to its owner.
PW5's story regarding the presence of dogs which the
accused denies is worthy of credit in that he didn't tend to
exaggerate the viciousness
of the dogs when asked by the court how
big they were. Asked how big was the biggest of the dogs he
demonstrated "2½ feet high".
"Were any of them vicious-looking or were they
ordinarydogs ? They were ordinary.
But you told me you feared them hence you ran away. Why
if they were that ordinary ? The way he was walking and
the fact that they seemed to be heading for the person".
The evidence of PW5 is satisfactory in this regard
because he had earlier
that the accused was making for the spot where the trio were seated
10 heightened pace. He also was able to give a common
sense therefore acceptable
answer to the question put to him that "the accused
couldn't have been accompanied by dogs because he owns none" by
"Those dogs were used to him because they belonged where
he was employed".
It is true that the Preparatory Examination record does
not reveal PW5 as having mentioned the question of dogs accompanying
But the probing by questions asked in this Court even
though done so many years after the event evoke memories which nobody
to evoke in the Court below. Thus it is of importance that
the Court at this stage observes closely the demeanour of the witness
while responding to questioning in order to guard against
embellishing of the story that puts the adverse party falsely in dim
bad light. I am confident that such cannot be a valid criticism to
level against Pw5 whose evidence I accept as satisfactory.
PW5 denied that it was at this stage that the accused
for the first time ever asked "Hey man do you know me to be
PW5 says he didn't hear the deceased respond and say
"Hey man are you cheeky or resistant". Indeed from the
pitch of voices
and given the distance that PW5
was from the two he would have heard if the deceased
offered any such provocative utterance to the accused. I reject it as
up story to seek false justification for the assault meted out
at the deceased. Likewise I reject the suggestion that the deceased
looked furious to the accused because the accused had said "monna"
to him yet the accused being younger than the deceased
disrespectful to say "monna" meaning "man" to the
deceased because if this was uttered PW5 would have
heard it and he
said he didn't hear the accused say "monna" to the deceased
nor the other take objection to the supposed
The story continued to be put to PW5 that in the context
of what appeared to be the deceased bent on giving the accused his
is to me farcical indeed. The accused armed with a stick,
standing a metre away from the deceased, and in company of his dogs
mere sight of which had caused the trio to run away in panic
wants the Court to believe that the deceased was taxing him with
yet hardly a second afterwards he turned tail and
fled from the supposedly insubordinate accused!
PW5's story is worthy of credit also because he didn't
seek to conceal the fact that the deceased drew some shiny object
waist. But if this turns out to be
12 the knife that was handed in, in the Subordinate
Court its role was absolutely minimal. It appears to me that the
drew it to buy time within which to turn and run away
from the accused who seemed bent on assaulting him for asking for 50c
when the deceased knew he was not working.
PW5 denies that the deceased turned and faced the
accused and said to him I can kill you. Asked how he can deny this
yet he was so
far away he said the voices -of the duo were
high-pitched; thus if such words were uttered he would have indeed
heard them. I accept
PW5's attitude and explanations without any
The accused's story is that he was 18 years at the time
of events in this case herding after stock at Corn Exchange. He says
One day in 1996 he left home for the village centre.
When he returned from there he met the trio mentioned earlier. One of
asked for 50c from him. The accused says he ignored him
and went past without replying. The deceased said "hey man I am
The accused having reached home and spent about 45
minutes remembered that
13 he was still having Potlaki's stick which the owner
had lent him. He there and then made for Potlaki's home without the
his idea is that he was going to see if Potlaki is there
and if he was he would invite Potlaki to accompany him to the home of
accused to fetch the stick with him.
The accused said he took a different route from the one
which goes past the trio. Failing Potlaki at the latter's home the
returned to where he stayed. On his way he met the trio where
they had always been. The deceased again asked for 50c from the
It is then that the accused said "Hey man I don't have
money. Tarn not working:" The deceased in reply said I shouldn't
call him "man". The deceased further said go away with that
little money of yours and ended with uttering the abusive phrase
"your mother's .... I see you think you are better". The
accused says he let him be and parted with him and went home only
come back 45 minutes later. This time carrying Potlaki's stick.
Carrying it to its owner.
It is to be wondered why this time he parted from his
rule of leaving the stick and go and find out if Potlaki is there so
he was the two should go and fetch it from the accused's
14 Coupled with the fact that none of the things the
deceased is said to have said
to provoke the accused it is not beyond imagination of
this Court that because the accused had resented being asked for 50c
deceased he felt this time that Potlaki's stick would come in
handy. Hence his departure from the rule he had set for himself
by an increase in his pace and a pack of dogs this time.
It would not be wrong, gathering from the evidence and facts of this
to conclude that the accused felt it was about time he knocked
the stuffing out of what he felt to be a demeaning form of behaviour
on the part of the deceased.
The accused's story is a long rambling tale devoid of
substance. Indeed when confronted with the crucial question why it is
blows he said he effected on the deceased's hands were not
recorded by the doctor who performed the postmortem the accused
clearly in a cleft stick and dumb-founded.
His reason for chasing after the deceased who was
running away and therefore out of the fight even supposing he was
ever part of it
holds no hope for anyone seeking to rely on
self-defence. No one can defend himself from another who is fleeing.
15 The heavy blows which landed on the vital part of the
body with fatal
consequences are not indicative of light use of force,
or force that was tempered by a fall on arms as well. Had that been
there wouldn't have been a depression and crack on the
deceased's skull. Instead the arms and hands where the blows landed
have borne out that aspect of the matter.
The accused however told the Court that he chased after
the deceased with the "purpose of disarming him in case he would
at some later stage and stab him with the knife. The accused is
in this connection deliberately oblivious of the fact that this
would have profitably been utilised by him approaching
higher authorities about the threat that a knife in the deceased's
possession holds for him.
The post-mortem report states that the deceased's body
was examined on 22nd January 1996. The cause of death is said to be
The external appearances revealed laceration of the
right eye brow; and laceration of the occipital region. The skull is
having had a depressed fracture. The right temporal bone was
affected plus subdural haematoma.
16 Given that the laceration on the right eye-brow is a
good distance away from
the depression on the occipital region which is at the
back of the skull, the accused's story cannot be true that the head
were caused by only one blow which, while partly being borne
by the arms and hands, landed somewhere on the head while the first
one aimed too at the knife hand was confined thereto. If only one
blow managed to hit the head then it either landed on the right
or at the back of the head. If it landed at the right brow what then
caused the depression at the back of the head? If it landed
back of the head what caused the laceration on the right eye brow?
The simple explanation for the more than one injury on
the head is to
be found in the evidence of PW5 who said he saw the accused deliver
three blows on the deceased, and in part from
Marorisang who on
observing the savagery with which these injuries were effected on a
helpless man asked "are you killing him?"
the answer to
which by the accused was a callous "tha1sts exactly what I am
Finally the unmistakable answer is given by the accused
in response to the Gentleman Assessor on my left (Mr Mohapeloa's)
"What provoked you so much and which you felt he
depressed and cracked head from your blow ? I don't know
17 One gathers from this curious answer a lashing
without restraint of blows aimed
at the deceased delivered with blind rage and fury. I
reject that there is any defence of self-defence in this case
The position in law is that a man commits murder or
unlawful killing if for no reason or for the slightest provocation he
at the vital parts of another, and with savage force
wields a weapon to achieve this end or if in pursuit of self-defence
that defence by a large margin.
Mr Mpaka raised important questions to consider in the
light of the fact that the stick wielded is not here and therefore
cannot rightly say force used was savage if in fact light
force was applied in using a heavy stick. While I do appreciate the
entailed in this submission 1 cannot ignore the fact that if
little force was used then this does not relieve the accused of the
responsibility of directing it at the vital part of the body.
The accused is found guilty of murder as charged.
My assessors agree.
JUDGE 2nd June, 2000
For Crown : Mr Kotele For Defence : Mr Mpaka
The Court heard during the extenuation phase of the
trial that the accused at the time of the commission of the offence
was aged 18.
It was submitted that the accused did not initiate the
fight. I disagree with this submission. The mere fact that the
50c of the accused cannot in my view be tantamount to
initiation of a fight
I have taken into account that the accused has no
19 The fact of his youth in my view even standing on
its own without interaction
with other factors submitted would tend to entitle the
accused to a finding that extenuating circumstances exist in his
The Court so finds.
With regard to Mitigation of sentence the Court accepts
that that the accused
has no previous records of criminality. It is important
that he be given a second
chance. It may well be that if a proper sort of sentence
is imposed it would help fulfill a rehabilitative purpose in the
life. The Court takes into account the period spent in
detention before the trial commenced.
He is accordingly sentenced to five (5) years'
imprisonment. My assessors agree.
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