CRI/T/3/99 IN THE HIGH COURT OF LESOTHO
the matter between:-
TONA MOHOLISA JUDGMENT
Delivered by the Honourable Mr Justice S.N. Peete on the
23rd June 2000
The accused a mosotho adult appeared before this court
on a charge of murder it being alleged that on the 29th March 1998
and at or
near Maputsoe in the district of Leribe, he did unlawfully
and intentionally kill David Pheello Maseela. To this charge the
pleaded not guilty.
In support of the charge, the crown called P.W.1 Tsae
Moholisa, the elder brother of accused who told the court that on the
1998 he had been drinking beer at the party and that he
asked the deceased to lend him a musical cassette so as to dub. On
day he went tot he home of the deceased where he found
Mangoetsi Malakoane who was employed as a maid by the deceased. He
asked Mangoetsi to borrow him the cassette so that he could
dub its music. Mangoetsi obliged and gave him the cassette; he then
It appears the deceased became annoyed when he got to
know that P.W.1 had taken the said cassette; the deceased then looked
1 until he found him at a shebeen. A quarrel ensued and
P.W.1 tells the court that the deceased, who was then in a angry mood
him with a fist in the face and took away his cassette. It also
appears that P.W.3 Mokoatle Mahase was also fisted by the deceased
when he tried to intervene.
P.W.3 when giving evidence told the court that on that
day the deceased had entered the shebeen and had angrily demanded his
from P.W.1 and had hit the latter and that when he tried to
intervene, the deceased had also hit him in the face and had chased
P.W.2 Mangoetsi Malakane's evidence shows that P.W.1
took the cassette in the -absence of the deceased; This annoyed the
P.W.2 then told the court that after the deceased had
retrieved his cassette from P.W.1, he went back into the sitting room
his two visitors from Maseru were seated.
She says that soon thereafter she saw three men
approaching the yard and one of them, being the accused inquired
where the deceased
was. She says the two men accompanying the accused
She says that the deceased then appeared on the doorway
and greeted them saying "Brothers come inside". The accused
said "BX, I don't like what you have done to my brother"
and deceased said "Come in, I am not fighting, though you
She says she then saw the deceased turning back into the
house but was then bleeding profusely; he held on to a stove and then
down. Screaming, she rushed to call the two visitors who rushed
into the kitchen to find the deceased bleeding profusely and lying
the kitchen floor. She says she went to report the matter to the wife
of the deceased who was at work in one of the Maputsoe factories.
Under cross examination by Mr Teele for the accused, she
explained that when the three men arrived, she was standing behind
on the kitchen doorway as she had just thrown some dirty
dish water away and was also in the way to the toilet. The arrival of
three men stopped her in her tracks because she observed that
they were in a fighting mood and the two were carrying sticks. She
agreed that the accused carried no stick at that time. She was also
taken to task by Mr Teele about the version at the preparatory
examination where she is recorded as having said that the deceased
told her that he had assaulted P.W.I with fists over the cassette.
Though she stood immediately behind the deceased P.W.2
seems not to have seen the accused actually stabbing the deceased.
"Question: You did not see the deceased being
Answer: I only saw when he turned and was bleeding.
Question: At the P.E. you said "accused then
stabbed the deceased with the knife?
Answer: I did not see the stabbing - at the P.E. I
might have said I saw him being stabbed."
She denied categorically that the deceased ever attacked
the accused with fists but insisted that the deceased was all the
the accused and his companions to come inside. She says
the accused would be lying if he says he was attacked with fists by
on that day.
P.W.3 Mokoatle Mahase was a witness who was called last
by the Crown Counsel Ms Maqutu and his evidence changed the whole
of the crown case and in brief his testimony went on like
this: After he had been assaulted by the deceased, he ran away to his
home where he was staying. He found the accused and told him
that the deceased had assaulted P.W.I his elder brother over some
He says the accused, and his father- in- law then went to
the home of the deceased, and he also accompanied them; he was also
He says they found the deceased already at his home. He
says the deceased appeared on the doorway and talked to the accused.
he then saw the deceased suddenly attacking the accused with
fists and that he saw when the accused took out a knife and stab the
deceased in the chest area. They then left the yard after the
deceased had retreated back into his house bleeding.
Mr Teele, in all fairness, did not even cross examine
P.W.3 because P.W.3 was indeed totally favourable to the defence and
should have prudently made him available to the defence;
his evidence rendered no credit to but tarnished the crown case. The
having closed its case Mr Teele also elected to rest his case
without calling the accused.
In this case the crown had the duty and onus to prove
the charge of murder beyond all reasonable doubt and upon the
Ms Maqutu candidly conceded that the crown had
failed in this regard. The stabbing of the deceased was however
unlawful and unjustified.
The evidence of P.W.3 even if believed
shows that the stabbing was an excessive reaction on the part of the
accused; his life was
not in danger and he used a lethal weapon
inflicting a mortal wound on the deceased. Though provoked by the
incidents that had occurred
that morning he ought to have foreseen
that death would result when he stabbed the deceased with the okapi
knife. Mr Teele also candidly
conceded that the accused exceeded the
reasonable bounds of self-defence.
In the circumstances of this sad and tragic case, I find
the accused guilty of the crime of culpable homicide,and my assessors
Ms Maqutu informs the court that she has no record of
the accused's previous convictions.
Sentence: The court finds that the stabbing of the
deceased was unlawful and unjustified. Having considered the
raised by Mr Teele, the court finds that the
unlawful act of the accused has caused the wife of the deceased to
become a widow and
her children orphans. For this the wife of the
deceased has all rights to claim substantial compensation in a civil
6 The sentence of the court is the following:
Five years imprisonment or M2,000 half of which is
suspended for three years on conditions that the accused is not
convicted of an
offence involving violence to person for which he is
sentenced to a term of imprisonment of six months without an option
of a fine.
For Grown: Ms Maqutu For Defence: Mr Teele
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