IN THE HIGH COURT OF LESOTHO In the matter
vs THABO QEBISO
Delivered by the Honourable Mr Justice S.N. Peete on the
1st September, 2000
The accused, a 75 year old Thembu man of Phamong in the
Mohale's Hoek district appeared before this court facing a charge of
of his son it being alleged that on the 6th day November 1993
and at or near Ha Teboho in the district of Mohale's Hoek, the
did unlawfully and intentionally kill Wangabantu Qebiso. The
weapon used was a mohloare (olive) stick.
The main witness for the crown was Kulegile Qebiso
P.W.2, deceased's younger brother, who told the court that on the
evening of the
6th day of November he and the deceased were preparing
to go to bed in a rondavel owned by the accused. The deceased
as he had been to a "letsema" (communal
ploughing) on that day. The accused then entered and demanded tobacco
deceased who replied he had none. The accused also appeared
drunk; he then went out and soon returned carrying a "mohloare"
stick and again demanded tobacco from the deceased who again said he
had none. The accused then struck the deceased on the neck as
latter was bending down. "It was not a heavy blow" he said.
The deceased then fell down after a little while.
According to him there was no fight between the two. When the accused
came in again,
P.W.2 says he warned him "you will kill this
person". The deceased was at the time snoring or groaning hard
and could not
talk. He says he went to awaken his uncle Eric Adonsi
and his mother who having examined the deceased left saying he could
see him in the morning. In the morning he says he left the
deceased still snoring; he left for the veld to attend to his herd.
the evening the deceased was brought back from the clinic already
Under cross examination by pro deo counsel Mr Khauoe,
this witness insisted that he also had assisted in the "letsema"
at Mochokochoko's and that Challa's field had already been
He admitted that the accused was once a mine worker and
that he used to remit money home to support them all. He denied that
ever forcibly demanded money form their mother or that
he even broke the tin-trunk in the process.
He further denied that before the accused struck the
deceased with the stick, the accused had remonstrated with the
Challa's field. He insisted that the accused only
demanded tobacco from the deceased who used to smoke even dagga. He
the deceased used to be very violent and wild at times.
The evidence of Mangoejane Qonokelo was to the effect
that he was a close relative to the accused though their villages
He told the court that the deceased was the eldest son of
the accused but was always cheeky and disrespectful. He told the
that on that day he met the accused who reported to him that he
was from reporting the assault to the police, and that when he got
home he found the deceased already dead.
Under cross examination, he told the court that the
accused had explained that it was the deceased who began the trouble
into his hut.
The defence then admitted the depositions of Trooper
Kelepa who attended the scene of the crime and examined the corpse
a wound on the head. He then transported the body to the
government mortuary in Mohale's Hoek. Trooper Rametse's deposition
admitted and showed that the accused arrived at
Phamong Police Station and surrendered himself and also
handed in a stick. The postmortem examination report was also
showed that the cause of death was "fracture of the
right temporal bone causing epidural haematoma." All these were
into the machine and formed part of the record.
The crown then closed its case indicating that it now
supported a lesser charge of culpable homicide. In this regard, I can
the accused having formally pleaded not guilty to the main
charge the matter was entirely in the hands of the court.
The accused in giving his evidence informed the court
that he was born on the 8th May 1925 and was a Thembu peasant farmer
at Phamong in the Mohale's Hoek. He was a mine worker till he
was retired when his shoulder got dislocated. The deceased was his
eldest son who also used to work in the mines but was then
retrenched. He told the court that he used to remit money to his wife
for family upkeep. He told the court that there existed bad blood
between himself and the deceased and that the deceased used to
liquor and smoke dagga; he once received a report that the deceased
had forcibly demanded money from his mother and had broken
tin-trunk in the process. He was a disobedient young man who always
demanded money for satisfy his gluttonous needs. He was of
physique and was a feared "Goliath" in the village. The
deceased and one Shalla were on very good terms and used to
Despite his orders that Shalla's field should never be
ploughed with his cattle, the deceased persisted though. He says that
however permitted Shalla's field to be planted seed only to
placate his son.
He told the court that on the 6th May he had joined the
"letsema" ploughing at Mochokochoko's field and had
about 11 am. as they were going to the chief's court to
attend a meeting. He then saw the deceased and his friend Shalla in
and looking very drunk. What annoyed him was the fact that he
had noticed that the field of Shalla had not been planted seed. At
Mochokochoko's hut they were given food and one tin of Sesotho beer.
He retired and went home at about 9 pm. He was carrying his
stick as usu. On arriving at home he entered the rondavel occupied by
his two sons. It was open. He went in and inquired
from the deceased
"Wangabantu, guteni unga ya ga planta etsimo ea lo Shalla?"
- "Wangabantu why have you not planted
seed in Shalla's field?"
To which deceased replied "I would never go there as there were
people planting." The accused
then said "It is better that
you leave my house." Deceased retorted "This is my home
...you are the one to go".
Accused says the deceased then bent
down to grab his stick. Sensing danger, he struck the deceased
pre-emptively on the neck. He
then left the house. He says he did not
intend to kill his son.
Question: When you left were you aware he was injured?
Question: Did you intend to injure him?
Question: If you saw he was injured what would you have
Answer: I would have raised an alarm.
He says that on the morning of the following day he went
into the rondavel and found out that the deceased had just passed
then raised alarm and went to the chief and Phamong Police
He says he was arrested on the 9th November 1993 and was
refused permission to attend the funeral of his son.
Under cross examination, he described vividly how bad
the relations between him and his son were. He was even afraid of
him. He says
he struck the deceased because the Shalla affair had
annoyed him and he struck him when he tried to raise his stick. He
explain that his son P.W.2 had been coached by Challa and
his colleagues to deny the altercation over Shalla's field.
The defence then closed its case.
The court finds that as the concession that evidence did
not support a charge of murder was correctly made by Mr Semoko for
the issue at this trial then is whether the crown has
proven the charge of culpable homicide beyond a reasonable doubt or
the version of the accused may reasonably possibly true. In
the case of Moshesha vs Rex - 1976 LLR 47 it was held by Mofokeng J
where a court is faced - as is the case presently - with two
conflicting stories, it must satisfy itself that the story of the
on whom the onus rests is true and the other false; and that
the judicial officer must bear in mind the cautionary rule applicable
to the evidence of a single evidence and that where a motive to
mislead exists on the part of such witness, absence of corroborating
evidence renders such evidence
7 unsatisfactory and may result in a reasonable doubt as
to the guilt of the accused.
In this case the crown case rests upon the evidence of a
single eye witness (P.W.2) and in the circumstances of the case it is
improbable that he could have been coached by Challa and his
friends to testify adversely against his aging father. I am of the
that the story of the accused has a ring of truth because it is
rather improbable that he could have attacked his son for merely
giving him tobacco. It is more probable that an altercation occurred
provoking the accused into striking his son; on the other
hand I do
not believe that the deceased was struck in self-defence, but under
In cases of culpable homicide the test is whether the
accused ought reasonably to have foreseen the possibility of the
death of another
resulting from his conduct. The act must be both the
factual and legal cause of the death. "The accused need not
actual manner of his victim's death if the manner of the
victim's death is within the ordinary range of human experience"
per Mofokeng J. in Motjekoa vs Rex 1976 LLR 258 at 261; see also
the judgment of my Brother Lehohla J in Rex vs Mafupara - CRI/T/19/96
dated 10th February 1999. Even according to the evidence of P.W.2
Kulegile Qebiso the blow with a stick was not a heavy one. In my
the fact that death results from an act does not ipso facto
necessarily mean that the actor must be found guilty of culpable
homicide; it must be proven that death was foreseen as a possible
result. Snyman - Criminal Law (1995) - p 403 says-
"It is, admittedly, usually easy to draw this
conclusion in cases of assault resulting in death, yet there is no
every case of assault which results in death the person
committing the assault ought to have foreseen that death might result
that he was therefore negligent."
In S v Van As -1976 (2) SA 921 the accused had slapped
deceased - a very fat man, who then lost his balance and fell, became
and died. The court found the accused guilty of common
In the case before court, I am of the view that the
crown has failed to prove that the accused ought to have foreseen
that the deceased's
death would result when he struck only once with
the mohloare stick. In other words, it is not the consequence of the
act that is
decisive but also the mental culpability of the accused
at the time he committed the act - see also Rex vs Chobokoane
per my Brother Maqutu J (dated 16th August 2000) where
the accused was charged with attempted murder but was ultimately
of assault with intent to do grievous bodily harm.
Having considered all the circumstances of this case, I
hold the view that the accused was annoyed by the conduct of the
on that day and by his most impudent replies. He struck at
him only once perhaps in a fit of anger but foreseeing that injury
result. I find him guilty of assault with intent to do grievous
Crown Counsel: The accused has no previous convictions.
mitigation: Mr Khauoe points that the accused is a first offender
and an old man of 75 years. His act that resulted in death
was unfortunate but had fatal consequences. Postponement or
suspension of sentence was appropriate.
Sentence: Having considered the circumstances of this
case and what was said in mitigation the sentence of the court is as
- 1 year imprisonment or M500.00 wholly suspended for a
period of three years on condition that the accused is not during
found guilty of an offence involving injury to person for
which he is sentenced to six months or more without an option of a
S.N. PEETE JUDGE
For Crown : Mr Semoko Defence : Mr Khauoe
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