HIGH COURT OF LESOTHO
by the Honourable Mrs Justice A. M. Hlajoane on the 28th May, 2003.
accused appeared before me facing three charges of murder, attempted
murder and unlawful possession of a firearm respectively.
one it was alleged that upon or about the 22nd of February, 1997 the
accused acting unlawfully and with intent to kill,
did assault the
deceased Mothepu Mabandla and inflict a bullet wound upon him from
which the said Mabandla died at Thaba-Khubelu
on the 23rd of
two it was alleged that upon or about the same date as in Count one,
the accused acting unlawfully and with intent to kill,
one Lebitsa Ntsoeu and inflict a bullet wound upon the said Lebitsa
three it was alleged that upon or about the 23rd February, 1997 and
at or near Thaba-Khubelu in Mokhotlong the said accused
unlawfully and intentionally have in his possession a firearm to wit
a 9mm Pistol serial No AB 19805 without holding a certificate
contrary to section 3 (1) of the Internal Security (Arms and
Ammunition) Act 1966.
three charges were put to him the accused pleaded not guilty to all
three of them, and his counsel, Mr Phoofolo, showed
that the pleas
were in accordance with his instructions. The pleas of not guilty
were accordingly entered on all the three Counts.
Prosecution led evidence of eight crown witnesses in its effort to
establish a prima facie case. The evidence of the first crown
witness, Tpr Yengane after being duly sworn in, told the Court that
he was stationed at Mokhotlong in 1997 as a Police Officer.
remembered that he had been issued with a firearm in the performance
of his duties which firearm unfortunately got lost sometime
February, 1997 as they had gone out on patrol with other Police
Officers. They were on horseback. The witness and his team had
stopped at a place called Mechalleng to allow their horses to drink.
In fact the witness had remained behind with one Molikeng
After they had watered their horses they proceeded on their way to
Reli cattle post.
It was P.
W. 1 's evidence that on their way he had put his hands on his waist
to check for his firearm, only to find it missing.
He did not have
any idea as to how it got lost. It would seem that the witness did
not go back to where the horses had been drinking
but proceeded on
his journey. He only looked around him and then proceeded on his
journey. He informed his team about his missing
pistol. The witness
and his team spent the night at the place called Matlaong. P. W. 1
went back to where the horses had been drinking
the following day to
look for the gun but all in vain.
proceeded on its patrol for stock theft and then went back to their
station. Arriving back at his station P. W. I reported
missing gun which according to him was still loaded with 15 rounds.
He gave the serial No of the gun as AB 19805.
examination revealed that, in fact the witness had been out on patrol
for two weeks and he was not certain as to when
the firearm might
have fallen. He showed it could have been when his horse was drinking
or when it was galloping causing him to
P. W. 2
Sgt Letsoepa, after being sworn-in told the Court that he too was
stationed in Mokhotlong in 1997. He clearly identified
the accused in
this case as he had been the investigator in this case. He went
further to show that he met the accused at the charge
office as he
had surrendered himself. When the accused surrendered himself
according to the witness, no report had been given about
deceased. When he so surrendered himself he had no gun with him but
to the witness culminated in their going to where the accused had
hidden the gun at a place called Phutha. One Police
Officer who was
not called as a witness was driving the vehicle which took them
there. Tpr Phakisi also accompanied them.
to this witness the accused took out from under a rock near the foot
path and the road, a 9mm pistol and handed it over
to P. W. 2. On
inspecting the firearm, the witness found that it had a bullet in its
muscle or chamber, whilst another bullet was
still in the magazine.
The gun bore the serial No. AB 19805.
and other two Police Officers visited the scene of crime the day
following that of the accused surrendering himself. As
they identified themselves to the chief and were shown the dead body
of the deceased on the ground. This was at Thaba-Khubelu.
was at the forecourt of the accused's place. On examining the body an
open wound on the left side of the chest was discovered
open wound on the right shoulder at the back. Two 9mm shells were
also found at the accused's place. The dead body
was transported to
Mokhotlong mortuary and it did not sustain any further injuries on
the way to the mortuary.
P. W. 2's
investigations revealed that the firearm which the accused handed
over to him was in fact that of P. W. I which had gone
gun was eventually released to P. W. 1 as there was a Court order to
that effect. It would seem that the gun was again
taken by the
witness from P. W. I for purposes of producing it as an exhibit
before court and was thus handed in as an exhibit
and was marked as
such. An amendment was made in Count III to include also two rounds
of ammunition, and this was not objected
to by the Defence. The
charge was thus amended accordingly.
shells which had been picked up from the scene of crime were taken
for ballistic examination and later taken to the Magistrate
the Preparatory Examination stage, but they could not be produced
before the Court as they could no longer be traced,
P. W. 1 had identified the gun and the bullets as his.
to this witness, the shells were found at the door at the accused's
place. The distance where the deceased had fallen
place was estimated at 100 paces away.
cross-examination, P. W. 2 explained that the accused had in fact
told him of his quarrel with the deceased. The witness had
with the suggestion that the accused went to the police to seek
refuge as he had been attacked at his place of residence.
it would appear, had not brought the accused and the witness face to
witness explained further that he explained the accused's rights to
him but did not remember including also accused's rights
representation of his (accused's) choice. It also came out under
cross-examination that the witness and one Foloko visited
of crime on the 23rd February 1997, that is, a day following the
deceased's death. And when they so visited the scene,
they did not go
with the accused who was already in detention, but left him behind at
the charge office. The witness showed that
he found it not necessary
to have visited the scene with the accused. There had been a
directive from the witness's office that
the chief of the area should
instruct his subjects to guard the dead body for the night as Police
would only come the following
day. This was done.
suggested to the witness under cross-examination that in fact some of
the men who were asked to guard the dead body for the
Thusang Mokete and Semethe Rasethuntsa, both of whom had clashed with
the deceased before he met his death and had been
sent by the chief
to go and bring the deceased before the chief. It was also suggested
that both Mokete and Semethe had directly
met the accused after the
incident and being potential witnesses, and having been charged with
the assignment of going to guard
the dead body for the night, could
not exclude the possibility of them interfering with the Police
investigations. The witness
showed that there could be such a
possibility, but disagreed with the suggestion that there could also
have been a possibility
of interfering with the position where the
dead body was after the shooting and before the Police visited the
P. W. 2
also pointed out under cross-examination that the distance between
accused's place at Thaba-Khubelu and Mokhotlong Police
was not far
except that the road between the two places was bad and that caused
the journey to be long, as would have to cross
three dongas and pass
a mountain. He further showed that by horse could take 2 to 214
hours. The witness could not remember where
the deceased had fallen
because according to him Tpr Foloko took over and continued with
further investigations. It was suggested
to the witness that accused
was going to say that he in fact did not directly shoot at the
deceased but that what happened was,
as he was attacked he retaliated
from the rondavel behind which the deceased fell. The witness could
not deny that. Through his
investigations the witness came to know
that there had been a clash or a fight between the deceased and the
accused. It was this
witness's testimony that he would caution a
suspect at the completion of his investigations, and also that in law
an arrest could
only be effected at the completion
Ntsoeu was called by the Crown as P. W. 3. His testimony was to the
effect that he remembered that it was on a Saturday
during the second
month in 1997 when he was sent by Chief Tsiu Matete, to go and call
the accused. The witness knew the accused
well as his home boy. He
went to call the accused in the company of Semethe Rasethuntsa,
Lethusang Mokete, Tau Baholo, Ramahlele
Thebe, Lenka Lenka, Mothepu
Mabandla and Griffiths Mokete.
It was P.
W. 3's evidence that as they neared accused's place, estimated at 20
paces away, 'Mamarife, the accused's wife, shouted
to warn her
husband that they were coming to arrest him. According to the
witness, 'Mamarife even asked the accused to shoot at
and his group). The accused who was standing outside at the time went
inside one of his houses and came out of the
house uttering insulting
words. The accused put off his blanket and started shooting. The
group dispersed and ran away and the
witness got shot in the process.
to this witness, as the accused fired the second time, Griffiths
Mokete asked the accused why he was shooting at them
yet they were
not at his place and had so far not said anything to him. It would
seem that the witness fell, because his evidence
went further and
showed that Lethusang and Rasethuntsa came to where he had fallen and
found that he had sustained an injury. They
supported him to the
chiefs place. The witness reported to the chief as to what had
happened to him.
witness was already at the chiefs place, Griffiths Mokete also
them where he too had been shot. His report also showed that Mothepu
Mabandla had been shot and had fallen. The informer
did not know if
the deceased was still alive. The two who were injured were referred
to the Police by the chief. They found the
accused already at the
Charge Office. They were later referred to the doctor.
witness explained that there had been no quarrel between them and the
accused prior to their going to call him following the
from the chief. They had only been sent to go and call him and come
back with an answer. It was his evidence that
they were all not armed
with anything as they proceeded to the accused's place to call him.
to P. W. 3, accused had two houses, one on the right facing East and
the other on the left facing West. As the group approached
home, the accused was standing outside the house with its door facing
East. The accused was near the door. He went into
the house and came
back. His wife had entered the house with him. There was a gun report
and the witness did not see when the deceased
was shot and when he
heard the shooting, the witness went back home and never came back to
the scene even after he had been to the Police Station.
also showed that it was a two hours journey by horse from the scene
to the Police Station. He later observed that
one Griffiths had been
shot on the finger of the left hand and also on the left cheek. The
witness had also been shot.
cross-examination, the witness showed that they had only been asked
by the chief to go and call the accused but not to arrest
him. He did
not know the reason why the chief sent for the accused. The witness
had seen the accused's son just seated at the chiefs
knowing why he was there. He also indicated that they hud gone to the
accused's place to call him and also ask him
why he had not come as
the chief had sent somebody to go and call him. According to this
witness, they were sent in a group as
the accused failed to respond
when only one man was sent.
response to questions put to him, the witness told the Court that
they had prior to that day been sent in a group by the chief
and arrest one Tebelo Matete. He said, it was for the first time that
they had to go in such a big group just to go and ca
11 someone, the
accused. The cross examination revealed further that none of those
men who were sent was armed with anything. The
question further put
to the witness was: -
Q = How
did you take notice that none of you was armed?
A = I
noticed that because it was not at night.
because the witness had shown that it was still light as it was
before sunset and could even notice if one of the men in
had a firearm in his hands. The witness was putting on a blanket on
suggestion that some of his men were armed and one of them even fired
a shot at accused, the witness denied the allegation
showed that that was a lie as the accused was never injured but he on
the other hand was shooting. The witness had
seen the accused's son
seated at the chiefs place without knowing if he
arrest as many villagers were there. He did not know that accused and
his son were suspected of theft of a horse.
witness explained further that the accused came out of his house
facing East before firing at the group. It came out from this
that accused's house was within the village and that because the
shooting took place in bright day light, there were many
were watching from near accused's house. It was suggested to the
witness that in fact there were more than seven men
in his group
going to call the accused and were walking in different groups as
there were more than one path leading to accused's
place. The witness
was certain that he knew all the men who were in his group, but when
asked about other people whom he had not
mentioned but claim also to
have been sent by the chief to go and call the accused, the witness
said they might have not been in
It was P.
W. 3's evidence that when he was shot on his right leg he was about
10 paces away from accused's place, which was just
forecourt. Next to P. W. 3 was Semethe. The witness had not seen the
deceased anywhere near him as they advanced
to accused's place. It
was also put to the witness that accused was going to show that his
wife had told him that their son was
under arrest at the chiefs place
and that he had been assaulted and had sustained injuries.
cross-examination to this witness, the defence already indicated what
their line of defence was going to be, that for safety
reasons he did
not want to go to the chiefs place at that late hour but preferred to
go in the morning. He was going to show that
he had shot twice in the
air to scare the men away, as the group of men
his house at night and started hurling stones at his house and
shooting. He said he never shot straight at anyone, and could
identify his attackers as it was already dark.
P. W. 4
D/Tpr Foloko told the Court that he was stationed at Mokhotlong in
1997 when he received a report concerning the death of
Thaba-Khubelu. Following that report, he with P. W. 2 had proceeded
to the scene, where he found a man fallen on his
face near accused's
houses, about 30 paces away. The witness took photos of the place and
examined the place.
witness found a shell near the deceased, about 3 paces away. Another
shell was found, one foot away from the same house, where
deceased had fallen, 30 paces away from it. Photos of the shells were
also taken by the witness.
witness then took photos of the dead body of the deceased, first in
the position he had found it and later took photos of the
On examining the body he discovered a wound on the left side of his
breast, another wound at the back below the shoulder
there were those two wounds, the witness could not tell whether one
was the entry wound and another an exit wound,
he left that for the
doctor to explain. Photos of the wounds were also taken. The skipper
he had put on had two holes.
was taken to the mortuary and did not sustain any further injuries on
the way. After the photos were processed an album
was prepared and
was handed in before the Court. Other photos taken showed the
accused's houses, the place where
deceased had fallen, ten paces away from the house and also the
people who had gathered at the scene of crime. The witness concluded
by telling the Court that through his investigations, he came to
learn that the events had taken place after sunset.
cross-examination, the witness showed that he had left the accused
behind at the charge office when he visited the scene of
asked if he could have taken the accused with him to the scene had he
known that he was already at the charge office,
the witness showed
that he would be guided by the explanation from the accused, and
would only go with him when he found it necessary.
He went further to
say that even when he was already at the scene he did not find it
necessary to have brought the accused with
there were two rondavels at accused's place, the witness explained
that the dead body was lying on the side, 10 paces away
rondavel on the left. He showed that if one was standing at the door
for the other rondavel, he could not see where the
body was as the
other rondavel would be an obstruction, but standing on its side
would clearly see where the body was. The witness
that because the two shells were found at the scene, that would not
conclude that there must have two wounds
inflicted as the other blow
may have missed its target.
P. W. 4
had come to know that the events had taken place at night, but only
came to know about them the following day when he was
visiting the scene as the scene of crime officer. The witness
explained that he did not observe any stones at the
scene, but had
observed a broken window. According to this witness the
seemed to be an old one, as there were no broken glasses below that
window. The witness had the same observation about the
could not properly close. He took it, to be an old damage to what he
called an old stable door.
called in P. W. 5, Thusang Mokete, who told the Court that the
accused was his co-villager. The witness had lost his horse
prior to the alleged incidents. The witness had received some
information relating to the son of the accused, one Marife
The information was about his missing horse. Following that
information the witness proceeded to the cattle post to
his horse. He was in the company of Lenka Lenka.
got to the cattle post, the witness confronted Marife who in turn
explained that in fact he was aware that their horse
had been stolen
and that his father, the accused was the one who knew of its
whereabout. Marife asked the witness to go down with
him to his
father so that he could be confronted with his father. The three of
them proceeded back home. On their way home, Marife
changed to say
that he should he taken before the chief as his father, the accused,
was going to feel betrayed when he learned
that his son had spilled
the beans about the horse as they had made a deal with him not to
report themselves to the chief when they got home and did not go to
the accused's home. After Marife had given his explanation
chief, the chief then sent his men to go out and call the accused.
Ramahlele Thebe and another had gone out to call the
accused but came
back with a reply that the accused was said to be in the fields.
then sent out Ramahlele on horse back to go and call the accused from
the fields. He came back with a reply that accused
had promised to
come, but accused never showed up. When the accused was at his home,
back from the fields, the chief sent out Tau
Baholo and Griffiths
Mokete to go and call him, but still he did not come, instead they
told the chief that accused had shown that
he would not come.
witness told the Court that the chief sent out more men this time.
Those that were mentioned by the witness were, Lebitsa Ntsoeu,
Mothepu Mabandla, Lenka Lenka, Thusang Mokete, Tau Baholo and the
witness himself. They were detailed to go and tell the accused
he was being called by the chief. The witness even said that, they
were asked not to do anything to the accused but just call
According to P. W. 5, when they went to accused's place the time was
around 5. 00 to 6. 00 in the lute afternoon, the time
when the cattle
were coming home.
seem that the group that went to call the accused did not get to
accused's place at the same time. They went there in groups
each other, and P. W. 5 was well behind as he had just been from the
cattle post and was still feeling tired. The witness
told the Court
that as he was still some distance away from the accused's place, he
saw the accused pointing a gun at Griffiths
Mokete. He then saw some
sparks coming from the mouth of that gun, and saw Griffiths
staggering. As he staggered, Griffiths uttered
these words, "why
are you shooting at me yet I have not even arrived at your place, and
does not know yet what I was coming
to say. "
witness said, accused kept on shooting. He even pointed his gun at P.
W. 3, Lebitsa Ntsoeu and shot him. P. W. 3 fell to the
exclaimed that the accused
him on his leg. The witness then ran away as accused continued
shooting. He saw the accused point his gun at Mothepu Mabandla,
deceased, who was on his (P. W. 5's) left hand side, and he shot him.
The deceased fell and staggered as he tried to stand
up, but P. W. 5
left him and went back to the chiefs place. Griffiths Mokete was
ahead of him but the witness eventually caught
up with him. Griffiths
showed him where he was shot on his hand and a hole on his blanket
where the bullet went through before
hitting his second finger
cutting the nail of the small finger.
seem that P. W. 3 had left the scene with Semethe Rasethuntsa to the
chiefs place earlier than P. W. 5 because P. W. 5
told the Court that
they found P. W. 3 and Semethe on the way and helped to carry P. W. 3
to the chiefs place as he had an injury
on his right leg, on the
arrived at the chief's place, they were referred by letter to the
police. At the charge office as arrangements were being
taking those who were injured to the doctor, the accused arrived.
According to P. W. 5, it was at dusk though he could
not be precise
on time. Police detailed people through a letter to the chief to
guard the dead body for that night and P. W. 5
was amongst those who
guarded the body. The police visited the scene in the morning and
came to realise that the person was dead.
police took the dead body away. The witness showed that he had
noticed that his horse was missing during the month of January
around the 29th or 30th January. He only met accused's son on the
morning of February 22, 1997, the day the deceased met
P. W. 5
explained that accused had two houses, and that as accused was
shooting he was standing on the forecourt. The two houses
another. He showed that the deceased had fallen on the side of the
house on the left, whilst still some distance away
from the house.
The distance was estimated at 30 paces.
cross examination the witness pointed out that he was not personally
attacked but were attacked as a group by the accused.
The witness had
reported the incident of his missing horse to the police who asked
him to look for his horse and promised too to
to P. W. 5, he went to the cattle post in search of his horse on the
22nd February, 1997. He was not suspecting the accused
or his son at
that time. He did not go straight to accused's cattle post but went
and slept at his cattle post. He had left home
oh the previous day
the 21st. When P. W. 5 proceeded to accused's cattle post in the
early morning of the following day he already
had some information.
W. 5 proceeded to the cattle post he was travelling on horse back. P.
W. 5 showed that when they came down from the cattle
post with the
accused's son, Marife, Marife was walking on his feet whilst he, (P.
W. 5) was on horse back and were chatting to
each other. He said he
did not take Marife to the police but to the chief as the chief had
instructed them to. It was put to the
witness that they had assaulted
accused's son and even broke his left arm, but this was denied by the
witness. It also came from
this witness that his cattle post was far
from that of the accused, and that his cattle post was the furthest.
It was also suggested
that Marife must have been galloping like a
horse as he was walking alongside men who were on
back, but this was denied by the witness.
witness under cross examination showed that he was amongst the group
that went to call the accused on the last occasion. The
not deny that they had gone in a big number to call the accused and
further showed he did not know why the chief sent
such a big number
to go and call only one man. He hadn't even bothered to ask the
chief, but he was not amazed by that. The witness
other occasion when such a big group of men was sent out by the chief
to go and call a man who had fought his wife.
The witness further
showed that normally only two people are sent out to go and call
someone before the chief, but more men would
be sent out if a person
was violent. They were according to the witness never told that the
accused was one such a violent person.
P. W. 5
under cross examination, showed that he did not know the procedure of
dealing with someone who failed to abide by the chiefs
did not know that such a person could be summoned for disobeying
instructions from the chief. It was put to the witness
that in fact
their motive with his group was to bring the accused before the chief
dead or alive. As the complainant the witness
did not find anything
bad for having been in the group of men who went to call the accused.
witness told the Court that the chief had sent them but had warned
them not to do anything to the accused. It was put to him
that he was
saying this for the first time, as he never stated that at the
Preparatory Examination stage, but P. W. 5 said he remembered
so even at the initial stage. The witness said he considered going to
call someone and going to collect him to mean one
and the same thing,
was told that in calling someone one is left with a choice but to
collect meant to bring by force, he agreed. He then firmly
that they were ordered to go and collect the accused, hence the large
witness did not agree with the suggestion that the incident happened
at night. According to P. W. 5 the accused was called before
chief for confrontation with his son, Marife, who was already at the
chiefs place. When the group approached the accused's
were following different paths, 30 paces apart (estimated). As they
approached Lebitsa and Lenka were ahead of them,
with Lenka only 4
paces ahead of the witness as compared to Lebitsa who was 30 paces
witness saw the accused come out of his house and standing on the
forecourt at his place. The witness last saw the accused standing
there 60 paces away from him. He heard the first gun report and said
Griffiths was the first one to be shot. When taken to task
evidence at P. E. where he had said he was only 6 paces away from the
accused when he heard the first gun report, he said
he meant that
Griffiths was the first one to be shot at that ankle. He said
Griffiths was the one closer to the accused as he was
in front and
his group had arrived first at the accused's place. Griffiths had not
been in accused's group, but in another group
which had taken a
different path. The witness had said he saw the accused point his gun
witness then heard Griffiths ask as to why the accused was shooting
at him yet he was not at his place and have not even heard
was going to say to him (accused). It was thus put to the witness
that P. W. 3 had heard something different
the witness heard, namely that accused said, "why shoot at us".
The witness then told the Court that his statement
was the one which
was correct. According to P. W. 3 he was the one who was shot first,
but P. W. 5 said Griffiths was shot first
so that the witnesses had
seen things differently. The witness went further and told the Court
that as the accused shot at those
two people he just stood still
where he was and only walked away thereafter. The witness gave the
Court the impression of being
a very brave man. It was put to the
witness that at the Preparatory Examination stage he had said they
ran away on hearing the
gun report, but the witness showed that that
statement was wrong as he could not remember ever running away.
cross examination P. W. 5 showed that it was not true that the
accused was attacked from both sides. It was also put to the
that the accused did what he did in self defence as he was attacked
by a group of men who even threw stones at accused's
his property and at the same time shooting. This was denied by the
witness. It was also suggested that the accused
did not go to the
chiefs place because it was already at night, but the witness also
witness was shown a photo showing where the deceased had fallen after
he was shot, but he denied that that was where the deceased
witness even made a mark on that photo to indicate where the deceased
fell, which was a place behind the rondavel. On
that photo also the
witness showed the two paths from the chiefs place going to accused's
place in between them. The witness was
standing on the right side
opposite to where the deceased was. It was therefore suggested to the
witness that the idea of following
two different paths to accused's
place was to
them, but this the witness denied. Finally the witness told the Court
that he was in the company of Lenka as he proceeded
to the cattle
post and that he never found his missing horse to date of hearing of
P. W. 6,
Lenka told the Court that he knew the accused as his co-villager, and
remembered that during the second month of a certain
year, they had
gone up with P. W. 5 to search for his missing horse. His animals and
those of P. W. 5 used to graze together.
witness and P. W. 5 went up to the cattle post in search of the
horse. They had met with one man first at the cattle post, and
met with one Marife who when asked about the horse showed that though
he never saw the horse, he knew where it was. Marife
when asked about
the whereabout of the horse showed that he had heard his lathee say
that he wanted to take that horse.
to P. W. 6 the suggestion of going home with Marife came from Marife
himself, and indeed they went back home with him.
On their way back
home Marife suggested that they should go before the chiefs place not
to his home as his father would fight him.
Before the chief the
witness explained why they were before him.
Thebe was sent out by the chief to call the accused before him. The
messenger came back with a reply that the accused
was said to be at
the fields. The same Ramahlele was then asked to go on horse back and
call the accused from the fields. He came
back to say that the
accused had promised to come. There were other
who were sent for the third time to go and call the accused, their
names were forgotten. They were requested to go and collect
accused according to P. W. 6, but the accused had told them that he
was not coming.
P. W. 6
then told the Court that the chief asked them all to go and tell the
accused that he was called. P. W. 6 listed eight people
who were sent
to go and call the accused, and he too was amongst the group. The
witness gave out names of those whom he could remember
that he had forgotten others. He said, as they approached the
accused's place, he heard a gun report. He was then
a distance of
about 120 paces away from the accused's home at that time. As they
heard the sound of the gun the witness saw P.
W. 3 sit down and he
too sat down. He then invited P. W. 3 to run away.
It was P.
W. 6's evidence that they did not walk in a group to the accused's
place but were scattered. He and P. W. 3 took the direction
left side of the house where accused was. P. W. 6 had seen the
accused outside his home on the forecourt before the shooting
started. He could see that accused had a black object in his hand and
could not see clearly as he was far. The witness heard P.
W. 3 say
that the accused had shot him. P. W. 6 then rose from where he was
seated and ran back to the chiefs place, but before
he left he had
heard three gun reports. He went back and reported to the chief.
Other men from the group also went back to the
chief, but Mothepu
Mabandla, the deceased never came back.
P. W. 6
noticed that P. W. 3 had sustained an injury on his leg, whilst
Griffiths was injured on his finger. P. W. 6 was not amongst
people who kept guard over the
witness gave out names of the people whom he remembered who were in
his company when going to accused's place. They were Thusang
(P. W. 5), Ntsoeu Lebitsa (P. W. 3), Lenka Lenka (P. W. 6), Ramahlele
Thebe who became P. W. 8 in (his case, Mothepu Mabandla
deceased) Moyekele Semethe and the witness himself. As accused took
out that something from under his blanket a gun shot was
fired for the second and third time and the witness saw the deceased
deceased fell he was only 4 paces away from the witness. The witness
then saw the deceased trying to stand up on more than
and each time falling back to the ground. P. W. 7 then ran away to
the chiefs place. He found Griffiths and P. W.
3 already there and
both claimed to have been shot. P. W. 7 had only seen the deceased
being shot but not the other two. The witness
had observed when
accused look out the object from under his blanket pointing it at the
deceased and deceased falling down.
this witnesses' testimony that he had gone to the chiefs place
because the chief had called them. According to this witness,
had gone to the accused's home when the cattle were coming home. When
the group proceeded to accused's place some were in
others came behind. There were two paths going there, one on the left
side of the house and another on the right side
of the house. The
witness remained at the chiefs place when other men took those who
were injured to hospital. He did not also
go to keep guard over the
for that night. He only saw the deceased's body the following day at
accused's place. The body was near the house on the
estimated at 7 to 8 paces away. He had not seen the deceased being
shot. According to this witness the house near where
the dead body
was had no windows. The witness observed the injuries on the dead
body, a wound on the right side of his chest below
the right breast.
Another wound was behind the left shoulder.
witness told the Court that he was charged of assault on accused's
son but he was acquitted. He went further to say that it
first time to see such a large group being sent to go and call only
one person. He said it was in the late afternoon when
the cattle were
coming home, when they went out in a group to call the accused.
examination the witness told the Court that they left for the cattle
post a day before the deceased met his death. He showed
they came down with the accused's son from the cattle post he was on
horse back so was P. W. 3, but Marife was walking
on foot. They had
left the cattle post in the morning and arrived at the chief's place
in the afternoon. According to this witness
the time that they took
to get to the chiefs place from the cattle post was for a normal walk
as their horses were taking a normal
pace. It was put to the witness
that accused was going to say it would take the whole day for one to
travel from his cattle post
to the chiefs place, and his response was
that that wouldn't be the case if one walked fast enough. The witness
Marife was taken before the chief and not to the
Police because he chose so. He denied that when they came down from
post with Marife it was because Marife was under arrest,
but said Marife was only assisting them in their search for the
this witness's response to questions put to him that for the many
occasions that messengers were sent to go and call the
accused never became violent. After the witness and P. W. 3 arrived
with Marife at the chiefs place, the chief called
out men of the
village, but the witness showed he did not know why they were called,
but later said they may have been called to
come and listen to what
Marife was going to say.
put to the witness that he was hiding something when he said he did
not know why the chief kept on sending messengers to
the accused yet
the accused had made his position clear that he would not come. P. W.
6 showed that none of the men who went to
call the accused was armed.
P. W. 7,
Tau Baholo told the Court that he lived in the same village as the
accused. He was also aware of the events surrounding
the death of the
deceased, Mothepu Mabandla. He was one of the men who were sent to
call the accused. According to him it was a
group of about eight men.
This witness also told the Court that the accused's son had indicated
that his father knew about the
horse, but the information did not
come straight from accused's son himself but from the chief.
witness went further and showed that they had gone to accused's place
in a group and that as they approached the accused's place
he saw the
accused take something from under his blanket. They were about 120
paces away from he accused as they noticed that.
Preparatory Examination stage the witness had mentioned more than ten
people whom he said were in his company when they proceeded
accused's place, and this was put to the witness that he was now
reducing the number conveniently, but he responded in the
According to this witness under cross examination, the deceased had
fallen 15 paces away from the house. Though in this
Court the witness
told the Court that he saw the deceased fall, at the Preparatory
Examination stage he had said he was told by
some men that the person
who was shot and fallen was in fact the deceased. The explanation
that the witness gave to this was that
the events happened a long
time ago but could not dispute that he might have forgotten some of
the events that took place.
witness also told the Court in cross-examination that when the
deceased was shot he was facing away from the accused. The witness
denied when it was put to him that he and his group were intending or
had intended to surround the accused's house. It was also
the witness's attention that for most of the crown witnesses in this
case, the issue of deceased falling and rising
so many times was
never raised at the Preparatory Examination stage, but was being
raised for the first time before this Court,
thus giving an
impression of being a fabrication.
was put to the witness in cross examination that in fact accused was
standing at the door of his rondavel when he fired
two shots, not at
the forecourt as the witness said, but in answer the witness said
that he saw him standing at the forecourt.
It was also put to the
witness that accused was going to say that he fired in response to an
attack against him and his property,
to which the witness answered by
saying they had not intended to go and fight but accused fired even
before he got
why the group was there.
again was put to the witness was that amongst other things, the
accused had heard gun reports from the group and he became
apprehensive that his life was in danger, but the witness showed that
none of them had a gun in his possession despite him not
searched them. Accused was going to say that stones were thrown at
his house, resulting in the damage to the window. The
witness was in
agreement with the suggestion that accused did all that was possible
in order to protect his life, and that accused
did not pursue them
after they had run away but remained where he was at his place. It
came out from the witness that when he ran
away he had not known that
the deceased never got up from where he had fallen. The witness never
observed any shootings from his
group, neither the throwing of stones
at accused's house.
witness, P. W. 8 Ramahlele Thebe whose evidence was to the effect
that both accused and the deceased were his co-villagers.
remembered the events which culminated in the death of the deceased.
He had seen on that day as he was still at his home, P.
W. 5 and 6
driving Marife Mashalane to the chiefs place, since the witnesses's
home was not far from the chief s place. After P.
W. 5 and 6 arrived
at the chiefs place, the chief called him (P. W. 8). He was ordered
by the chief to go and call the accused.
He came back with a reply
that accused was said to be at the fields. The report came from
accused's wife. The chief then asked
the witness to ride his (chiefs)
horse and call the accused from the fields. According to this witness
he did not know why he was
being called. The reply was that accused
promised to come.
some time, the chief detailed yet two other people to go and call the
accused. It was Griffiths Mokete and Tebelo Matete,
who came back
with the reply that accused had promised to come in the morning. It
would seem that by that time, many people had
then gathered at the
chief s place, hence the statement by the witness that, "the
chief then detailed the many people who
were at his place to go and
call Chaka. " Amongst the group he remembered, Thusang Mokete
(P. W. 5), Lenka Lenka (P. W. 6),
himself (P. W. 8), Tebelo Mokete,
Semethe Rasethuntsa, Lebitsa Ntsoeu (P. W. 3), Griffiths Mokete and
to this witness, they did not go to accused's place at the same time.
He was amongst the group that came last. As the
men who were in front
neared accused's place and the witness still some 250m away from
accused's place, gun reports were heard.
As the gun sounded the
witness saw the deceased fall down, and when he fell the accused was
still standing at the door of his house.
The witness then said, "we
only when he was at the chiefs place that he noticed that P. W. 3 and
Griffiths Mokete were injured. The injured were referred
police. To P. W. 8's observation, the deceased was in front of the
group. He fell in front of the accused's house 200m away.
explained that, to get to the accused's place they had to go up. The
deceased was shot as he approached the accused'
door. The witness
only observed the injuries on the deceased the following day when the
police had already arrived.
observed a wound below the left side of the breast and another on the
shoulder. The witness had not asked why the chief had sent
men just to go and call the accused. He had seen Marife at the chiefs
place but did not observe any injuries on him.
witness told the Court further that there was a kraal near accused's
place on the left side, belonging to one Tankiso, and that
deceased was near that kraal when he was shot, a little above where
the deceased fell.
cross examination the witness showed that he saw Marife under arrest
and tied with a rope on both his hands. It also came
witness that the chief had detailed them to go and arrest the
accused. The witness went and stood at the court's door
demonstrate how the accused stood as he fired. The roof of the door
was above his head.
to this witness he was not armed but that the other two men were
armed with sjamboks as they were on horseback. He said
he clearly saw
the sjamboks as he was in the company of those men. When asked about
the time when they proceeded to accused's place,
the witness said it
was in the late afternoon, before sunset, just about sunset.
witness also informed the Court that he saw people walking within the
neighbourhood of the accused's homestead who must have
seen what was
happening. The witness had not observed any throwing of stones at
accused's house, neither did he see any damage
to accused's house and
windows. According to this witness, the
accompanied them to the accused's place.
juncture, by consent, the medical reports for Griffiths Mokete and
Lebitsa Ntsoeu (P. W. 3) were handed in as part of evidence
case, and were accordingly marked as such, exhibits "B" and
"C" respectively and were read into the
"B" showed a 1 x 2. 5cm laceration, approximately 1 x 2cm
abrasion middle phalanx, lateral aspect of the finger
was 1 x 3cm
deep laceration middle phalanx of the middle finger nail. The little
finger was lifted up. The x-ray showed the fracture
of the distal
phalanx of the little finger. The cause of the injury was a missile,
probably a gun shot. The degree of force used
to inflict the injury
was severe, and the degree of danger to life was also severe. The
degree of immediate disability was also
"C" for P. W. 3 showed a 1 x 5cm in diameter wound on the
lateral aspect of the right leg. 1 x lcm vertically
oblong wound on
the anterior aspect of the right leg (exit). The x-ray showed a
fracture of tibia midshaft. The cause of the injury
as above was a
missile. Both the degree of force used to inflict the injury and the
degree of danger to life were severe. As for
the degree of immediate
disability was moderate, but the degree of long term disability was
post-mortem report was also handed in by consent. It was read into
the machine and marked Exhibit "D". This report
cause of death as being due to a cardio-respiratory failure,
secondary to massive cardiac and lung injury. The
had been shot in the chest with entry wound underneath his left
nipple and another irregular wound with surrounding swelling
right infra scapular region.
firearm Examiner's report was also handed in by consent and after
being read into the machine, marked Exhibit "E".
was prepared by the late Lt Col. Tlhabi John Telikhunoana (may his
soul rest in peace). In his report the officer showed
following were handed over to him for examination:
9. 0mm Tanfoglio pistol s/no. AB 19805
9. 0mm x 19. 0mm fired cartridge cases.
trained officer in the microscopic examination of fired bullets and
cartridge cases, firearms mechanisms, photomicrography
restoration of obliterated numbers on metal, with eleven years
experience, he had examined both items in (1) and (2) above.
found the firearm to be still in a good working condition after he
had fired cartridges therein for test purposes. The report
under microscopic examination that the fired cases in (2) above had
been fired from the pistol in (1) above.
crown had closed its case, the accused chose to go into the witness
box to testify. In his evidence after being sworn
in the accused told
the Court that on the day in question, the 22nd February, 1997, he
was at home with his wife and two of his
children. The other two
children were at his cattle post at a place called Reli. According to
the accused it would take him a day
and a half to get to his cattle
post on horseback and full two days on foot.
morning of the day in question the accused had proceeded to a place
called Mechalleng Ha Mohale on horseback. He went and
came back in
the evening. To get to that place he had to cross Mechalleng river.
As accused crossed that river the horse stopped
in the water to
drink. As the horse was drinking the accused felt that it slipped on
something on its left leg. It would seem that
the water was as clear
as crystal because the accused said, on looking in the water he
realized that the horse had stepped on something
have come down from his horse as he said he then picked up that black
object only to find that it was a gun an its magazine
rounds. The accused put the gun in his saddle bag and proceeded on
his way. He came back home at sunset. It was the
that he had not intended to keep the gun for his personal use, but to
take it to the police, but that this did
not happen as his intentions
were overtaken by events.
home at the forecourt, as the accused was busy unsaddling his horse,
he was informed by his wife that she had been to the
chiefs place and
had seen his son Marife. But before the wife could explain any
further, the accused saw the deceased arrive at
his place. He was in
the company of Tau Baholo (P. W. 7). The deceased announced his
presence by saying, "knock knock",
warning me to expel the
dogs for them. The accused expelled the dogs allowing the visitors
then to come nearer his home. The men
told the accused that he was
being called by the chief, but the accused turned around and replied
that he would come in the morning.
to the accused, these chief's messengers being men he already knew
were just normal but somehow drunk. They told the accused
did not know why he was being called by the chief. The accused then
told the men to go and tell the chief that he would
come in the
morning as it was already late at night. Even besides, the accused
told the Court that he was also feeling tired from
Accused went further and showed that the men left and he unsaddled
his horse and went inside his house. He said as
the chiefs messengers
arrived he had to wait and listen to them.
evidence went further to show that, at dusk when the accused was in
one house with the children, and his wife in another house,
the dogs barking on the outside as if they were seeing something
nearby. It was already dark. As the accused went out,
he heard a
sound of a gun. He heard the same sound the second time and heard the
dogs whining from a distance. As he heard the
third gun report, the
accused thought of the gun in his possession. He took it, loaded it,
and cocked it. The accused was then
standing at the door, and he
observed stones being thrown at his house and at the door.
accused heard the fourth gun report he fired twice in the air, still
standing at the door step. He heard the throwing of
stones subside as
he fired in the air. There remained silence thereafter. The accused
showed he was very frightened and had no
way of escaping.
accused told the Court that it was not true that his wife encouraged
him to shoot at the bastards. He said it could not be true
his wife was not with him
another house. Accused explained that he had no other means of
preventing the imminent danger other than acting as he did.
he did not even identify who his attackers were, so that it could not
be true that he shot at Griffiths directly as P.
W. 3 told this
Court. He also said it was not true that Griffiths even remarked why
he (accused) shot at them yet they were not
at his place. He never
heard such words from anyone.
to the accused, his attackers did not wait to introduce themselves,
but that as they came they were already shooting.
The accused then
went to report to the police immediately thereafter, where he was
kept for two weeks, only to be remanded on the
Monday following. He
showed he has never been charged of theft of a horse neither was his
son. According to the accused, when he
finally saw his son, he had
broken the fingers of his left hand, and was treated at Queen II
hospital. Accused's rights to legal
representation were never
explained to him. He was even left behind at the charge office when
police visited the scene.
accused had been home for 1 and a half hours from his journey before
he was attacked, and this was before he could report to
about the gun he had found in the river. The accused confirmed that
when he was attacked he still had his blanket on but
that he never
put it off at any stage.
accused's wife had told the accused that their son Marife was at the
chiefs place and that he had a swollen face. Neither the
his wife knew why their son was at the chiefs place, but according to
the accused he thought that may be Marife had
gone to report about
the animals at the cattle post. The estimation given
accused from his home to the chiefs place was 350m, but that the
place was out of view. He also estimated the distance of
his home to
the charge office at 5 to 10kms.
explanation given by the accused as to why he chose to go to the
police instead of going to the chief was that no one ever bothered
come and check on him even after it was realized that his attackers
had left, but chose to run to where he thought he would
get a better
accused was on his way proceeding to report to the police, he heard
people talking and thought they were the same people who
him. He went and hid the gun. The reason for hiding the gun, he said,
was that he was afraid they would take the gun
from him yet he was
eager to hand it over to police and the gun was no longer working,
presumably he had run out of ammunition,
or was not familiar with the
use of that gun.
said, he had met many people on his way to the police and further
showed it was not true that they found him at the charge
said he did not surrender himself to the police but went there for
protection and safety. Accused reported to D/Sgt
Tsita why he was
there and according to the accused, Tsita might have explained to P.
W. 2. Accused never talked to P. W. 2 in
explaining where he had
hidden the gun.
put to the witness that only two shells were found at the scene, and
the accused had testified to the effect that he had
fired twice in
the air. The accused had
that the gun was no longer working after firing two shots. All the
crown witnesses who testified before this Court were
known by the
accused as men from his village.
asked to give the reason why men from his village attacked him, the
accused showed he did not know the reason for their behaviour.
accused also said it was not true that he was called from the fields.
The report that the accused gave to the police was that
people had attacked him at his place, but accused was only surprised
to find that he was being arrested. He was never
even told why he was
being detained in police custody.
accused explained the reason why only two shells were found at the
scene yet he had shown that even his attackers had also fired.
said the other shells might have fallen amongst the bushes which were
at the place where his attackers fired from. Accused also
shells had been found at his forecourt. The accused explained that as
he fired he was not aware that he could hit at
someone but that it
could have happened. Accused was asked as to why he went out and
stood at the door when he heard the gun reports,
he replied by saying
he did not think of exposing himself as an open target, but he
thought he was allowing himself chance of easily
escaping should his
attackers think of burning his house.
accused was asked to demonstrate and show how he shot in the air. He
took a pen and pointed straight ahead of him and showed
how he fired.
The accused pointed straight ahead of him and was told by the Court
that what he did was different from shooting
in the air. He explained
that that's what he understood shooting in the
mean. And this was the defence case.
analysing the Crown's evidence the Court learned that P. W. I had
been on patrol for two weeks and lost his gun bearing the same
number as one picked up by the accused. It was possible that P. W. I
lost his gun as the horses were drinking, but he had
said he could
not be sure as to where and when his gun went missing. He only gave
two possibilities, namely that either it fell
as the horse was
drinking or as the horse was galloping and he falling off that horse.
The same gun was picked up by the accused
the following day as his
horse was also drinking at the river at the same spot.
P. W. 2
as the investigator in this case saw the accused at the Charge Office
as he had surrendered himself. The accused had no
gun with him as he
so surrendered himself, but the explanation from the accused led the
police to a place where accused took out
a gun from under a rock near
the foot path and the road. This confirms the accused's story that he
had hidden the gun on the way
as he was proceeding to the Charge
Office. According to him, he went there for safety not to surrender
himself. He hid the gun
for fear that his attackers were going to
take it from him.
of P. W. 2 also confirmed as true the explanation by the accused that
he could not be charged of unlawful possession of
because he had only picked up that gun from under the water at the
river and was intending to hand it over to the
Police soonest. The
gun was not found hidden at home but on the way to the Charge Office.
The gun was the very one which went missing
from P. W. l's possession
the previous day and bearing the same serial No AB 19805 as that of
visiting the scene of crime, two 9mm shells were found at accused's
place, at the forecourt. The body of the deceased was found
paces away from the accused's place. On inspecting the body an open
wound on the left side of the chest was found and
another on the
right shoulder at the back. Because we had not been told that the
bullet still remained trapped in the body, I took
it that one wound
was an entry point whilst the other was the exit wound, meaning that
the deceased was shot only once.
P. W. 2
had shown that the accused had explained to him that he shot the
deceased in the process of their quarrel. The Court too
on looking at
the Crown's evidence in its entirety is inclined to belief that in
fact the accused was attacked on that fateful
evening. The Crown
witnesses wanted the Court to buy their story that they had gone
there just to go and call the accused. One
might begin to wonder as
to how the chief of that area conducted his chiefly administration,
sending such a huge number of men
for calling just one person.
witnesses all wanted the Court to believe that the shootings happened
in bright day light. They all said it was before
sunset, when the
cattle were coming home. Accused on the other side told the Court
that it was already dark hence the reason why
he told the chiefs
messengers that he would come to see the chief the following day. P.
W. 2 had no quarrel with a suggestion that,
in fact the accused
proceeded to the Charge Office to seek refuge as he had been
attacked; and that the quarrel had not brought
accused and deceased
face to face.
P. W. 5,
Thusang Mokete told the Court that he saw sparks of fire coming out
from the mouth of the gun as the accused fired, but
negative the fact that such sparks could only be visible if the
shooting was done at night. The Court was thus invited
to examine the
probabilities in the light of the evidence put before it. It went to
confirm the accused's story that the group
came to his place when it
was already at night hence why he chose to see the chief in the
morning. The visit by the police of the
scene of crime the following
day also tended to confirm the accused's story that, in fact, it was
is worth mentioning in this case is the fact that all the Crown
witnesses who testified before this Court were the very
who were sent by the chief to go and call the accused, which means
that they are witnesses in their own activities.
The Court was told
that there were people in the neighbourhood who must have witnessed
what happened, but were never called by
the Crown as independent
witnesses to come and testify. Because of their participation in the
whole scenario, the risk of minimising
their role in this case cannot
be ruled out.
instances these Crown witnesses have been very evasive if not
deceptive, for instance, they had all, except for P. W. 8,
they did not know why (he chief was calling the accused. Even the
very same people, P. W. 5 and 6, who came down with
the accused's son
from the cattle post. They wanted the Court to buy their story that
they were walking normally with the accused's
son, yet they both were
on horseback and Marife was walking.
accused has told the Court that he had been informed by his wife that
she had seen their son Marife, at the chiefs place with
face. But the two Crown witnesses' evidence was to the effect that
Marife was only going with them in an endeavour to
assist them in the
search for P. W. 5's horse. It came out from both these two witnesses
that they were even charged of assault
on Marife, but were acquitted,
and as we know, acquittal may mean so many things.
were two different stories given, as to why Marife was not taken to
his home but to the chiefs place. According to P. W. 5
it was because
the chief had instructed them to bring Marife before him, but the
other explanation was that Marife was the one
who asked P. W. 5 and 6
to take him before the chief as he was scared his father would be
angry with him for having came out or
having exposed their secret.
Meaning it was not true that they got the information concerning
Marife at P. W. 5's cattle post.
The truth of the matter is, they
left home already knowing that they were going to arrest Marife.
already shown that the Crown witnesses were very evasive. This came
out also where each one of them came out with a different
people who had gone to call the accused on the chiefs instructions.
But it became evident that there were more than ten
bodied men, as the defence counsel put it. P. W. 5 had finally agreed
under cross examination that they had been ordered
to go and fetch
the accused, hence the large number of men.
able bodied men all said they were not armed with anything. Isn't
this deceitful? We have been told that P. W. 5 and 6 had
from the cattle post
horseback. The Court here can take a judicial notice of the fact that
a Mosotho men uses a sjambok once on horseback. Here we
of men living up in the mountain areas of Mokhotlong where most
Basotho still live their traditional way of life.
W. 6 showed that they had been asked to go and collect the accused.
P. W. 6 had said when coming down with Marife their
taking a normal pace but when it was put to him that it would take
one the whole day to complete that journey, he changed
to say that it
wouldn't be so if one moved fast enough, meaning that their horses
were galloping fast for them to have only taken
half day. How about
Marife walking along with them on foot?
P. W. 7
showed that accused did all that was possible in order to protect his
(accused's) life. He even showed that accused never
pursued the group
after the group had run away.
came out from the last Crown witness, P. W. 8 that when they
proceeded to the accused's place at least P. W. 5 and 6 still
their sjamboks in their possession as they had just arrived from the
cattle post on horseback. This witness also revealed to
that in fact they went to accused's place with a clear intention of
arresting him, but not just to go and call him.
clearly answered the question why they proceeded in that big number
to accused's place, which was the only reasonable inference
drawn under the circumstances. We have not been told that the accused
was in any way a violent
to the evidence by the crown witnesses, the accused had on more than
one occasion that day, refused to come when called
by the chief. The
chief had an option open to him to follow, that of taking him before
the Courts of law for disobeying lawful
instructions from his chief,
Rex v Leteketa Rantletse 1926 - 53 HCTLR p226. I have already shown
that the manner in which the chief
conducted himself clearly
indicated that he had sent his men to go and arrest the accused, but
not to call him. But even there,
though the chief had powers to
arrest, as people charged with the duty of maintaining law and order
in their respective areas,
it does not seem that the arrest or
calling of the accused by the chief through his men was done with
that purpose in mind. This
was discouraged in Rex v Napo C of A (CRI)
No 13 of 1968 (unreported). The case of Thole en 'n Andre v Minister
of Justice and
Another 1967 (2) PH J28 (N) it was stated that, "Those
chiefs who act contrary to the fundamental principle and are brought
before the Courts of Law will be treated in the manner they deserve.
accused may have exaggerated a bit when saying that some of the Crown
witnesses carried firearms, but the circumstances point
intended attack of some sort by the group by whatever means. That
obviously called on the accused to employ whatever means
disposal to defend himself and his property. Rex v Kali 1985 -90 LLR
264. He said the group were throwing stones at his
house and had to
prevent them from coming nearer him.
evidence of the Crown witnesses, the Court was made aware that a
situation of necessity was created which compelled the
feel he was going to suffer an injury which he could only avoid by
breaking the law.
criminal cases, where self defence is raised, the Crown must negative
that defence beyond a reasonable doubt, and the Crown does
discharge that onus if the version of the accused though improbable
might reasonably possibly be true. The story of the accused
be believed but accepted if reasonably possibly true. Lehoqo v Rex
1891 (1) LLR163. The gun he used had just been picked
up from the
river, He even took it along when going to seek for protection and
In Rex vs
Remaketse Ntabe 1985 - 90 LLR 187, it was said that the defence if
successfully pleaded entitled the accused to an acquittal,
however depending on the circumstances of the particular case it be
found that the force used was rather excessive, a verdict
homicide must be returned.
case, the Court having considered the whole of the evidence is of the
view that the version told by the accused might reasonably
possible and that the Crown has not proved beyond a reasonable doubt
that the killing of the deceased was illegal. Considering
of men who went to the accused's place, and the option which was open
to the chief when accused refused to come and
the unholy hours that
the group chose to go to accused's place, the accused was quite
entitled to act as he did in self defence.
therefore find the accused not guilty, and he is acquitted and
assessors agree with my finding.
Crown: Ms Ntelane
Defence: Mr Phoofolo
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