HIGH COURT OF LESOTHO
by the Honourable Madam Acting Justice M. Mahase On the 13th
accused appeared before this court charged with two counts as
Contravention of Section 3(1) of the Internal Security
Ammunition) Act No. 17 of 1966 (as amended).
accused has tendered a plea of guilty to count 2 and has tendered
that of not guilty to count 1.
a plea of guilty in count 2, and which plea was accepted by the
crown; facts were outlined. The gun and bullet in question
handed in as exhibits and were marked exhibit 1 collectively. This is
the gun which was used to commit the crime in count
the facts with regard to count 2 are as follows:
Policewoman Hlabana's evidence would disclose that on the 11th
August, 2000 she was on duty at Mokhotlong charge office.
Setsoto Seforo arrived thereat and surrendered himself to her in
respect of the death of one Napo Malapane.
Setsoto Seforo also handed to No.9893, a 9mm pistol, described as
being a Z88 Robella gun whose serial number had been
rubbed off. He
also handed over to her a bullet in respect of that gun. No.9893
cautioned the accused and asked him for an explanation
and to produce
a firearm license for this gun. He failed to do so. He was then
cautioned and given a charge as appears in count
2. The gun and the
bullet were admitted as exhibits and were collectively marked exhibit
outlined facts were accepted by the defence.
1 the charge of murder, the facts are briefly as follows:-
day in question, there was a person to be buried in that village of
Ha Malapane. Villagers had gathered at the grave yard
grave. The accused and the deceased were among those people.
a time when the accused left the grave yard and went to his home. He
later went back to the grave yard. When he arrived
back there, the
deceased was then in the grave taking out the soil from that grave
that was being dug.
suddenly a gun shot report. At the sound of that gun shot report, the
deceased came out of that grave rolling. The accused
who was then
standing on the upper side of the grave was seen holding a
gun/firearm in his hand. The accused then went to where
was and he (accused) shot at the deceased twice with that gun he was
holding. This, the accused did in full view of
all the village men
who were there digging the grave in that grave yard. The deceased
died immediately. The villagers stayed there
guarding over the
deceased's body, until in the evening when they were ordered to take
that body of the deceased to his home.
has called five witnesses to support its case. All of them are eye
witnesses to this barbaric killing of the deceased
except Pw5. Pw5,
Mojalefa Marasi was not there at the scene of the crime when the
crime was committed he however, heard a gun shop
report three times.
He was on his way to the said grave yard. As he went there, Pw5 met
accused was going to the village from the grave yard Pw5 saw that the
accused was holding a gun/firearm in his hand. They exchanged
greetings only and went passed each other.
Pw5 who later found the empty shell at the scene of crime. This, Pw5
handed over to the police on the following day. Pw5
chief/headman of that area of Ha Malapane.
common cause that the deceased was injured fatally after being shot
at by the accused. He was bleeding from the mouth and
D/Tpr. Raliile attended the scene of crime after this incident was
reported to the police. He examined the body of the deceased
observed that the deceased had sustained the following wounds:-
wound on the forehead;
wound below the right scapular and;
wound below the ribs.
saw a pool of blood at the scene of crime.
handed an empty bullet by Pw5. This bullet and gun were then sent for
ballistic examination by Pw4.
is a report of the firearm examiner in respect of the said gun and
bullet. It is the evidence of the firearm examiner,
Mr. P. Pali that
the said bullet is for the gun in question, a 9mm Z88 which said
number has been rubbed off. The said fired cartridge
fired from that said gun, which gun was also found to be in a good
the gun which was handed to the police by the accused.
witnesses who are eye witnesses have testified, thereby corroborating
each other's evidence that the deceased was not
armed with anything
when he was shot at by the accused. Neither had the deceased had any
contact nor any conversation with the
accused immediately prior to
also all agreed that nothing dangerous at all was found upon / from
the deceased when he was searched immediately after
being shot at by
items which were found from the deceased were a tin of Zambuk and a
plastic bag of BB tobacco.
clear to this court this far that at the time when the accused
fatally shot the deceased, the deceased had not in any unlawful
acted against the accused, nor against any of all those people who
were gathered in that grave yard.
accused's story is that he and the deceased were friends. They headed
their animals together until in 1988 when horses belonging
deceased got lost at the cattle post. At that time, the deceased was
away from his home.
the accused who had received a report about the said missing horses
of the deceased, went out of his way to look for same
but in vain.
deceased did however not belief that his horses had been stolen by
anybody else, but the accused. It was at that time that the
relationship between the deceased and the accused became very sour.
The local chief tried in vain to intervene between them to
hostility between them persisted even after the said horses were
found and recovered from the police pound. The deceased was
adamant that it was the accused who had
his horses that he lodged a civil claim for damages of his horses
against the accused in the sum of Ml,200.00 per horse.
deceased refused to withdraw even after his horses were found and
returned to him.
common cause that the deceased has had a grudge and a bad-blood
against the accused since that time; August 1998. They were
in talking terms.
night of the 2nd August 2000, the house of accused was attacked by
some men who were armed with firearms. An attempt was
also made to
burn it down. The accused and his wife were asleep in their house
when it was attacked. Fortunately they survived
It is the
accused's story that after his attackers had left his home, a 5 litre
petrol container, a tampler, empty bullet shell
and a lot of burned
match sticks were found at his home. That the tampler bore the name
"'Mamokoenihi" and that this
is the name of the deceased's
wife. It is also his story that the deceased and his wife never
attended the scene of crime at accused's
home. The matter was
subsequently reported to the police but no action was ever taken nor
investigations ever carried out about
also accused's story that the deceased once threatened him (accused)
saying that accused should go to the police in Mokhotlong
his (deceased's) tampler. He is alleged to have further said that
there was still a lot of petrol available in Mokhotlong.
further went on threatening the accused and boasting that he
(deceased) still had a gun and that he will ultimately
alleged to have been uttered some time on the 8th August 2000 when
the deceased and the accused met each other along the
way in their
accused further testified that the deceased had informed him
(accused) that he should never use a certain path which went near
passed the deceased's home.
accused reported about this to the police but the police never
investigated the said threats against the accused by the deceased.
When the deceased died, these had not been investigated.
Raliile looked for the report in this regard from Mokhotlong charge
office but he did not find it. Accused insists that he
incident and denies that that report could not be found at the police
as it may this court has noted that the said allegations and threats
which the deceased is alleged to have directed at the
uttered before the 11th August 2000; the day on which the deceased
was fatally shot at by the accused.
never any communication between the accused and the deceased on the
day that the deceased was shot at and killed by the
juncture, the salient point to be determined is whether or not, in
the circumstances of this case the crime of murder has
analyzing the principles of law to be applied in this case, Defence
Counsel Mr. Khauoe and correctly in my mind relied on the
case of Rex
v Ndlovu 1945 A.D. 369 where the court had this to say:
"The onus of establishing an intent to kill rested throughout on
case of Rex v Mkhize 1951(3) S.A. 28 at 31H, Centlivers C. J. had
this to say:
"The court will only reject the accused's explanation if it is
satisfied beyond reasonable doubt that it is false; it is sufficient
if there is a reasonable possibility that it might be true".
instant case, the fatal shooting of the deceased by the accused
occurred under very unfortunate circumstances. People had
the grave yard digging a grave for a fellow villager who was to be
buried on that day.
including the deceased herein were relaxed and unarmed with any
weapon, except the accused.
accused, for reasons best known to him went to the graveyard armed
with a firearm/gun. He clearly had a motive and intention
to kill the
deceased. He shot at the deceased unprovoked and at a very close
defence has denied that the first gun shot, which was fired at the
time when the deceased was still in the grave, was fired
reason given for that denial that it was the accused who fired that
first shot seems to be that nobody saw from where and
by whom that
first gun shot was fired.
been indicated above, people who were at that graveyard, were relaxed
and were busy concentrating on digging the grave. Nobody
this kind of thing to happen at the grave yard of all places.
have a high respect for the dead and the grave yards. What the
accused did at that grave yard was unthinkable in Basotho
wonder nobody saw when the accused fired the first shot.
as it may, it is common cause that it was only the accused who was
seen with a gun; who then shot at the deceased twice
at a very close
range and in full view of other village men who had gathered thereat
digging a grave in preparation of a burial
of another fellow
villager. No other person was seen in possession of a firearm at that
place, at that time except the accused.
of any nature was found upon the deceased immediately after he was
shot at by the accused.
therefore unchallenged circumstantial evidence that the first shot
was fired by the accused at the deceased while the deceased
busy in the grave.
deceased did not go out jumping and rolling down above that grave on
his own or voluntarily. He did so after the accused had
gun at him.
accused did not end the deceased's life in secret, he let everybody
see him do it by shooting at the deceased twice after the
had jumped out of the grave.
medical doctor's post mortem report shows that death was due to brain
and liver laceration. He has remarked that there were
entry and exit
investigating officer had observed three wounds on the deceased as
wound below the right scapular and
wound below the ribs
tally with evidence that the deceased was shot at more than once.
accused admitted that they were once friends with the deceased. That
they headed their animals together that their relationship
completely destroyed after the horses of the deceased had gone
missing. Their hostility towards each other continued even after
said horses were found and returned to the deceased because the
deceased was not convinced that he (accused) had nothing to
the disappearance of the said horses.
It is his
further story that all efforts to reconcile them failed. That his
relationship with the deceased was so bad that they
each other. However deceased used to threaten him (accused) whenever
they met, threatening to kill him.
It is his
further story that after he was attacked by people who also
unsuccessfully tried to burn his house, he never attended
for fear of being killed by the deceased who had uttured such threats
It is the
accused's story that he too heard the gun shot report; although he
could not say from where it came from. He saw the deceased
immediately going out of the grave. Having gone out of the grave,
accused says the deceased then raised his jersey and held himself
the waist. That he then saw at that time that the deceased was
holding a gun.
It is his
story that at that time, the deceased was facing directly at him
(accused). He then shot at the deceased twice before
shot at the deceased, the accused left that place (the graveyard) and
went away to his home and later to the police where
to the accused, the deceased had on the 8th August 2000 told him
(accused that he (deceased) would shoot at the accused.
accused says is the reason why he shot at the deceased on the 11th
testified that he had believed that the deceased would indeed kill
story of the accused makes it clear that he did not shoot the
deceased on the 8th August 2000 when the alleged threat to kill
(accused) was made by the deceased.
wonders why the accused did not react to that threat there and then.
Why wait until after some three days to react to it?
I find it
hard to belief the story of the accused. It has already been pointed
out above that when the accused went back to the
where he had left to attend to some visitor at his home, he found the
deceased in the grave taking out the soil
as the grave was being dug.
first gun shot was fired, the deceased was still in that grave; and
he posed no danger at all to the accused; nor to anyone
it is common cause that no weapon of any kind was seen nor found upon
the deceased prior and immediately after he was shot
at in cold-blood
by the accused.
person who was seen having a gun at that place is the accused. I also
observe from the evidence adduced herein that it
was only after the
accused had earlier left that graveyard and came back that a gun shot
report was heard. In all the circumstances
and on a summary of the
evidence as a whole, the only reasonable inference to be drawn
consistent with all the proven facts is
that the accused is the only
person who was seen in possession of a gun with which he later
fatally shot the deceased three times.
I am in
this regard fortified by the fact that, there is unchallenged
evidence that the deceased sustained three open wounds which
this court were to belief that the accused shot at the deceased only
twice, then the question as to how the deceased sustained
wound will remain unanswered.
court rejects as false the accused's story that the first gun shot
report heard in that grave yard was not fired by him. Also
as being false and fabricated story is the
evidence that the deceased tried to pull out a gun from his waist.
deceased had been working inside the grave when the first gun shot
report was heard. None of the crown witnesses testified that
saw a gun upon the deceased prior or after he was shot at nor while
he was still working in the grave.
been argued on behalf and in the defence of the accused that the
accused shot the deceased because the accused was under
that the deceased was about to shoot him (accused).
respect, this holds no water. It has already been explained that he
circumstances under which the deceased was shot at by the
negative the defence of self-defence.
was, on that day, no immediate danger of death nor grievous bodily
harm posed by the deceased against the accused.
explanation of the accused as to why he shot at the deceased on that
day is not reasonably possibly true. It is 16 false and
a fiction of
his imagination. It is therefore rejected as being palpably false.
clear to this court, and based on the totality of the evidence
adduced by the crown is that the accused had intended to
kill the deceased when the deceased least expected him to do so.
has ably and beyond any shadow of doubt proofed that the defence
relied upon by the accused; namely self-defence does
not stand in the
defence of self-defence has been discussed by the learned authors of
Garniner and Lansdown, Volume 11, 6th Edition at page 1546
"The accused must have been unlawfully attacked, R. V. ATTWOOD
1946 (AD) 331
AT 340 and had reasonable grounds for thinking that he was in danger
of death or serious injury, that the means used in self-defence
not have been excessive in relation to the danger apprehended, that
the use of the means must have been the only method or
dangerous method whereby the accused could reasonably have thought
that he could avoid threatened danger.........."
court has accordingly come to the conclusion that regard being had to
all the evidence adduced before this court including
evidence, the crown has discharged the onus cast upon it of proving
its case beyond a reasonable doubt.
case of Miller v The Minister of Pensions 1947 (2) All E.R. p373, the
court had this to say:-
"Proof beyond reasonable doubt does not mean proof beyond the
shadow of doubt. The law would fail to protect the community
admitted fanciful possibilities to deflect the cause of Justice."
This is a
sad but also a very serious case. The accused's action upon the
deceased was unlawful, barbaric, inhuman and unjustifiable.
very fortunate that in shooting the deceased as he did in the mist of
so many other people, the accused did not injure some
accordingly find the accused guilty of murder as charged.
Khauoe for the defence, applied that this court should find that
there are extenuating circumstances on the part of the accused.
Mofilikoane for the crown agreed with Defence Counsel for the accused
that extenuating circumstances do exist on the part of
It is the
opinion of this court that indeed there are extenuating circumstances
found to exist herein.
the fact that the accused was frustrated by denial of services by the
police after an attack upon his house in which he
and his wife were
sleeping. He had entertained the strong feeling that the deceased was
involved in the said attack and had contributed
to the attempt to
burn his (accused's) house.
of issues have been raised by Defence Counsel for accused in
mitigation of sentence; one of which is that the accused has
remorse for what he has done to the deceased.
court is persuaded to agree with the defence that the accused did
show remorse for having killed the deceased who was once
accused, just like the deceased has dependents to support and look
after. We are not to overlook the fact that the deceased
too was a
father who had responsibility to support his own dependants. His loss
to his children is a permanent
family will never see him again. They will forever miss his love and
support. Very unfortunately death has the final and
possession and use of unlawfully acquired firearms for whatever
reason should not be lightly looked upon. A firearm is not a
the way that the accused brandished it in full view of everybody, is
a clear indication that the accused had a very clear,
intention to use it for everybody to see when he killed the deceased.
occurred to him that he could have fatally shot other people as there
were many people who had gathered thereat.
very lucky that both counsel herein are agreed that there are
extenuating circumstances. This court is aware that he was angered
frustrated about the negative attitude of the police towards him and
their subsequent failure to attend to his case. He however
have resorted to killing the deceased.
foregoing reasons I have come to the conclusion that the accused is
guilty of murder with extenuating circumstances.
court has been informed that the accused has no previous convictions
i.e that he is a first offender Defence Counsel, Mr. Khauoe,
mitigation of sentence on behalf of the accused asked the court to
consider this fact in imposing sentence upon the accused.
asked the court to take into account that it has taken five (5) years
to have this case prosecuted to finality. That accused
is a married
man with six children, three of which are in high school; a wife and
seven other orphaned children of accused's two
elder brothers who
have since passed away, together with their wives.
accused also has to look after, maintain and support his elderly
parents who are aged 101 and 88 years respectively.
accused is living on farming, which is too poor.
accused has already or has started paying damages to the deceased's
family in respect of this death of the deceased. He
has now already
paid seven head of cattle and is left with the balance of three head
court is not sure about the above. Nothing has been shown as proof of
respect of count 2, Defence Counsel in mitigation indicated that
indeed the accused had possessed that gun though unlawfully
purposes of safe guarding his live stock and himself.
crime of stock theft is very rife in Mokhotlong and throughout this
country. That in most cases such theft is carried out
through the use
of firearms/guns. That in the process stock owners and their
herd-boys even loose their lives.
pointed out that the accused had acquired this gun long before he and
the deceased had a misunderstanding.
Defence Counsel asked the court to consider the time which the
accused has spend in jail awating trial, before he was released
bail and the fact that this case has taken inordinately too long a
time before it was finally prosecuted.
court has carefully taken into consideration all that has been said
by Defence Counsel on behalf of the accused in mitigation
also a sad situation that the police in Mokhotlong never attended to
the case involving an attack upon his family. This was
a serious case
where firearms were used and an attempt to burn accused's house was
that the inaction and the indifference of the police in such serious
matters where other people's live are endangered
results into people
loosing confidence in the police force as a whole. It is the duty of
the police to uphold the rule of law.
Unattended victims of crime end
up taking the law into their own hands if they are neglected by those
whose duty it is to protect
as it may, there is no justifiable reason why anybody should take the
law unto one's own hands.
such as this one should be treated with the seriousness they deserve
so that a sentence imposed upon an offender should serve
deterrent factor to other people.
case of Rex v Karg 1961(1) S.A. at p237, Schreiner JA (as he then
was) had this to say:-
u........It is not irrelevant to bear in mind that if sentences for
serious crimes are too lenient, the administration of Justice
fall into disrepute and injured persons may incline to take the law
into their own hands".
entirely agree with the above.
foregoing reasons, this court imposes the following sentences upon
1-18 years imprisonment without an option of a fine.
Count 2 -
M500.00 (Five Hundred Maloti) or one (1) year imprisonment in default
are to run consecutively.
are to run from August 2000.
is to be lawfully disposed off by the police.
- Mrs. Mofilikoane
Defence - Mr. Khauoe
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