HIGH COURT OF LESOTHO
HON. MR JUSTICE S.N. PEETE
18th NOVEMBER 2004
law — self defence - onus of proof on the crown to prove the
self defence false beyond all reasonable doubt.
accused stabbed the deceased with a knife after the deceased had
threatened to kill the deceased or himself be killed,
the crown must
negative self defence beyond a reasonable doubt; no onus rests on the
accused to proved his innocence. All he needs
to show is that his
version is reasonably possibly true or probable.
Held: Upon the facts, the crown failed to show that when he stabbed
the deceased who was threatening death, the accused acted
and not in self-defence.
The accused found not guilty and discharged.
accused stands charged with the crime of murder it being alleged
that on the 24th day of December 1997 and at or near Likhakeng
the district of Leribe, the accused unlawfully and intentionally
killed one Nkhahle Bombere.
To this charge he pleaded not guilty.
defence further admitted the depositions of Detective Trooper
Koalepe, Patala Liahelo, and Dr. Seqhobane all of whom had given
formal evidence at the Preparatory Examination before the Leribe
Subordinate Court regarding the identity of the deceased, his
autopsy and arrest of the accused.
crown then called P.W.I Ponto Liahelo who informed the court that he
lived in the Likhakeng village and that on the 24th December
about 6 pm he happened to be in the company of the deceased at the
shop of one Maqhomaki. He told the court that the
deceased who had
just arrived from Butha-Buthe was drinking castle beer. He went
further to say that the deceased then asked
him to go and fetch his
girl friend Itase Maqhoane P.W.2 from her house and that Itase had
requested that deceased go to the
says they both went to the house of Itase P.W.2 and as it was
raining they sought shelter at the house of P.W.2 where they
later joined by Mamatebele (P.W.3).
they were seated therein, someone knocked at the door and P.W.2
inquired "who is it?" - the no response was followed
another knocking and the man's voice said "It is me".
Itase then explained "oh....it is abutiPitso".
says the deceased then asked P.W.2 to go out and inquire and after
P.W.2 had gone out he then heard her shouting from the outside
saying that deceased should not go out; but the deceased stood up
and opened the door and that as he peered at the door the accused
stabbed him with the knife "on the left side of the neck and
that the deceased moved back saying "Hey man..., he has
me " and he fell down soon thereafter.
says the deceased "had said nothing before he was stabbed".
He told the court that deceased had had a year old love
the P.W.2 and that "she was going to elope with the deceased to
cross examination by the late Mr Mathafeng, he denied that some
threats had been uttered and stated that deceased was not
belligerent mood. It was then put to P.W.I that deceased had said-
"'Na ke moshana oaButha-Buthe ... nke ke ka tla telloa hole
did not hear that.
crown then called P.W.2 Itase Maqhoane who admitted that she was a
girlfriend to both the deceased and the accused; she informed
court that on the Christmas evening of the 24th December P. W. 1
arrived asking her to meet the deceased; and that because
rain, they sheltered at her house and were in the company of
deceased Mamatebele and Ponto.
they sat in the house talking the accused arrived and knocked at the
door asking Mamatebele to come out for a talk. She says
went out and came back saying that the accused wished to speak to
her. She says she refused and that the accused then
she does not come out ....I break. "
says the deceased then asked her to go and inquire and when she went
out, she found the accused who tried to force his way
in and was
violent, even trying to slap her.
In the fracas that ensued he heard deceased say "Ponto ...man,
...he has stabbed me!"
Upon entering the house she found him already lying prostrate and
examination then went like this:
Question: Accused will say the deceased was boasting that he was a
boy from Butha-Buthe and if not killed, he would kill... no
play trivialities with him.
Answer: I did not hear that; but the deceased said he would not come
all the way from Butha-Buthe for masaoana (trivialities)
I did not
hear threats to kill.
admitted however that the deceased was being restrained by Ponto and
Mamatebele in the house and that there was general commotion.
Question: Deceased was saying he would not come from Butha-Buthe for
trivialities ... either he kills or he is killed.
Answer: I heard that.
Question: Accused acted against a threat to be killed and in self
Answer: I hate what he did .... Not himself.
Question: He feared for his life
Answer: No... I don't understand
Question: His aggressiveness way consistent with his threats
14. P.W.3 Mamatebele Ntebele then gave evidence and informed the
court that on that day the accused came and knocked at the house
which P.W.2, deceased, Ponto P.W.1 and herself were sheltering from
rain. Accused then asked her who was in their company in
the house -
and that she hoodwinked him by saying that they were with P.W.2's
brother - she did so because she foresaw a violent
the two men.
She says the accused insisted saying "Call Itase ...so that I
tell her once that we should part ways. "
15. She says that as Itase tried to lock the door the deceased
wrenched the key and opened the door and the deceased said "Ponto
if I die rush home to tell them I have died. She admitted that the
deceased had just said "I can't come all the way from
Butha-Buthe for trivialities ".
16. She says as he opened the door, the deceased retreated saying
"Ponto ... he has stabbed me." He then fell down.
examination went on like:
Question: Accused will say that he heard deceased say that he not
come from Butha-Buthe for trivialities ... someone will die!"
I can't deny that.
The crown then closed its case.
17. The accused then gave evidence and informed the court that he
had a love affair with P.W.2 and that he had come to know that
deceased also was in love with P.W.2.
He went on to tell the court that on the 24th December 2004 he had
gone to the shop of one Malika where liquor was being sold and
joined a casino card game and was also drinking castle beer. It was
then that he recognized the deceased in the group of the
18. He says that at about 9 pm when he went to the house of P.W.2 he
was already very drunk; it was also a very dark and rainy
He says as he, Ponto, Itase and Mamatebele sat in the house, someone
knocked and he heard someone say "Ponto ... is itPitso?"
went to say that he called P.W.3 to come out and when he inquired who
was the man inside, P.W.3 had said it was P.W.2's brother
Maqhoane and Ponto. He disbelieved her. From the inside, a voice
came out saying "I am a boy from Butha-Buthe... I can't come
here for trivialities .... Today ifPitso does not kill me, I
killing him". The door opened roughly, he says. He goes on to
say that he broke loose from P.W.2 who was grappling him,
deceased was coming from the door. He says "I took out the knife
- opened it and stabbed him ... where I can't say."
19. Under cross examination he insisted that having heard the words
"I kill or be killed" he took the deceased to be
because he heard him threatened death to him.
"I stabbed him because I had heard his threats as he was being
The defence closed its case.
is not in dispute that the accused stabbed the deceased with a knife
thus causing his death on the Christmas Eve of the 24th
is also common cause that both the deceased and the accused were in
love with P.W.2, an unmarried woman living there at Likhakeng.
evidence also shows that when the accused came knocking at the door
of the house rented by P.W.2, the deceased took offence
that he had not come from Butha-Buthe for trivialities and that
either Pitso killed him or be killed by him
is not in dispute the deceased was being restrained by Ponto and
5) That the stabbing towards the doorway immediately after having
uttered the threatening words is not in dispute.
21. What is in issue is whether when he stabbed the deceased the
accused acted in self-defence. The onus is upon the crown throughout
to show that the accused acted unlawfully and to disprove self
defence as false beyond all reasonable doubt; no onus rests upon
accused to prove his innocence; all he need show is that his version
is reasonably possibly true or probable. In this case
facts indicate that the deceased was belligerent towards the accused
over Itase and even uttered some threats "to
kill or be killed"
- and this was admitted by P.W.2.
22. If that be the case - as I find it to be so - it is probable
that when he stabbed the deceased at the doorway, the deceased
approaching the accused belligerently having uttered the threats "to
kill or be killed". The crown could not convince
the court that
the accused exceeded the reasonable bounds of self defence or that he
had gone to the house of P.W.2 armed and with
intent to kill. If that
harboured by the accused, it had to be proved beyond a reasonable
doubt. The fact that deceased threatened to kill or be killed
it quite probable that when the door opened, the deceased was coming
to fulfil his intention to kill.
[The Assessor Gentleman however is the opinion that the accused was
criminally negligent in using that knife as did once a person
appeared at the door — despite the utterances made by the
deceased. The deceased was not armed according to the crown
hold therefore that upon the facts of this case the crown has not
proved its case beyond a reasonable doubt; there is a reasonable
possibility that when he stabbed the deceased the accused acted
self defence. He is found not guity and is discharged
: Ms Dlangamandla
Defence: Mr Teele
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law