CRI/T/57/2002

IN THE
HIGH COURT OF LESOTHO HELD AT MASERU

In the
Matter Between:-

Rex

And

Khosana
Tlapana

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 29th September 2005

On the
3rd November 2004 the accused appeared summarily before me on a
charge of murder in that on or about the 26th April 2000
he
unlawfully and intentionally killed one Mphanya Thakaso. He pleaded
not guilty to the charge and the crown led evidence in support
of
their case.

At the
commencement of the trial Ms Shale, counsel for the Crown informed
the court that the defence wished to admit certain statements
of the
crown's witnesses all of which were read into the court record and
became part of the evidence.

1

The crown
called four (4) witnesses to the stand. According to P.W.l's
evidence, on the date in question and whilst at the house
of the late
'Mammoelo, the accused started swearing at P.W.2, who also happens to
be her younger sister, by her mother's private
parts and threatened
that he was going to kill her because she said she no longer loved
him. The evidence went on to show that
when P.W.I reprimanded him,
the accused became more aggressive and started insulting her too. He
also rose up and threatened to
assault P.W. 1 but the deceased who
was present, intervened whereupon he was also subjected to the
accused's insults.

When the
deceased reacted to the accused's insults, the late 'Mammoelo asked
him to ignore the accused as he had already insulted
her too. P.W.I
went on to say that the accused started insulting everyone in the
house and repeated his threats that he would not
leave without having
killed P.W.2.

P.W.2
also testified that she advised the accused to leave and come back
the following day to talk things over with P.W.2 and that
it was then
that the accused took off his blanket and jacket, put his stick on
the ground and produced a pistol. He then went out
for about three
(3) minutes or so. When accused went out, the deceased advised P.W.2
to leave the room and go into

2

another
as she was the source of accused's aggression and P.W.2 obliged. The
evidence went on to show that when accused came back
into the room
and realized that P.W.2 had left, he became very angry and tried to
gain entry into the other room but was obstructed
by the late
'Mammoelo whereby a struggle ensued. Upon seeing this, P.W.I rose and
accused pushed 'Mammoelo to the floor where-upon
the deceased
reprimanded the accused and told him not to behave that way simply
because 'Mammoelo did not have a husband.

It was
also P.W.l's evidence that the deceased tried to get hold of the
accused whereby the accused said he would show the deceased
who he
was as he was stopping him from doing what he wanted to do and that
'Mammoelo's house was not his home. It was then that
the accused shot
the deceased once and the latter fell on the ground. 'Mammoelo then
snatched the pistol from the accused. P.W.I
then asked the accused if
he had really shot the deceased and accused left after watching the
deceased for a while.

P.W.I
also told the Court that when she tried to talk to the deceased, the
latter did not respond and she saw him bleeding from
the nose and
ears. She then went into the room where P.W.2 had fled and asked her
to open the

3

door and
the latter did after some persuasion and upon being informed that the
accused had left having shot the deceased. P.W.2
then went to fetch
their brother Mojalefa who came, shook the deceased and upon getting
no reaction from him, went to find a vehicle
that would take him to
hospital. According to P.W.I, the deceased was already dead by that
time.

P.W.2's
evidence was mostly similar to that of P.W.I but for the part after
she fled into the other room. She testified that whilst
in there, she
could hear the quarrel between the accused and her mother and the
struggle for the door. She said that after she
heard the deceased
reprimand the accused, she heard some-thing like a glass falling
down. After some time she heard P.W.I ask the
accused why he was
killing the deceased.

It was
also P.W.2's evidence that afterwards P.W.l came and told her that
the accused has killed the deceased whereupon they went
to call their
brother Mojalefa. After deciding that a vehicle was needed to take
the deceased to a hospital P.W.2 then went to
one Lemohang's place
where she found her mother holding the pistol. P.W.2 then testified
that she took the pistol from her mother
and they went home where
they found many people

4

gathered
there. She then went with the said Lemohang to report the matter to
the police and the police came and took the accused
away.

Two other
witnesses who took the stand were P.W.3, Number 8924 Detective
Trooper Seisa and P.W.4 Senior Inspector Mothibeli respectively.

P.W.3 was part of the investigating team in this matter and he
testified that some time in April 2001 he was on duty when Detective

Sergeant Raboqha who is since deceased handed him a 7.65 MM pistol
with serial number 661202 and two spent shells of the same caliber.

P.W. 3 labelled the pistol and recorded the death of the deceased. He
handed the same pistol before the court as an exhibit and
the court
marked it exhibit 1. P.W.4 in turn was the ballistics examiner who
examined the pistol and found that indeed the spent
shells had been
fired from the same pistol.

During
the trial when the crown called P.W.3 to take the stand, the defence
raised the objection that since the defence had not
been provided
with this particular witness' statement the court should not let him
take the stand.

It was Mr
Thulo, Counsel for the defence's submission that the principle of

5

a fair
trial dictates that an accused person has to be given statements of
all the witnesses before the trial commences so that
he gets the full
picture of the case he is going to face and prepare his defence. He
argued further that the crown already knows
the case they want to
place before the court and thus should not be allowed to call a
witness whose statement has not been made
available to the defence
otherwise an accused person might suffer prejudice.

I
overruled this objection for the reasons that whilst I appreciate the
rationale as contained in the case of Seoehla Molapo v DPP,
I am of
the opinion that this principle was not meant to exclude any evidence
which might be crucial for the proper determination
of the issues
raised in a trial. It would therefore be an anomaly to stretch the
principle to mean that any time a witness' statement
is not made
available to the other side such evidence should necessarily be
excluded by the Court.

The
court's duty is to first and foremost ensure that the interests of
justice are served. In the conduct of trial, a court is not
expected
to sit as an umpire in a sporting game and apply hard and fast rules
even if such would defeat

6

the ends
of justice. That is why they are given a wide discretion which of
course they must exercise judiciously.

To
support my view, Section 202 of the Criminal Procedure and Evidence
Act of 1981 empowers the court at any stage of a criminal
trial to
subpoena or cause to be subpoenaed any person as a witness or examine
any person in attendance though not subpoenaed as
a witness, if his
evidence appears to it essential to the just decision of the case. As
can be seen from the above mentioned provision,
a court is given wide
latitude to apply its mind in ensuring a fair and expeditious
decision of any trial. This means that where
the court is of the
opinion that the evidence of a particular witness is crucial, it can
call such a witness regardless of whether
or not either side had
intended to call him/her. It was for these reasons that I overruled
the objection and allowed P.W.3 to take
the stand.

After
P.W.3 gave his testimony and answered questions that were put to him
under cross-examination, Mr Thulo moved another application
that the
court should not admit the firearm and spent bullets as exhibits
because they were not handed in by their custodian. To
put this issue
in perspective, I should mention that during his evidence P.W.3
testified that he had been

7

given the
firearm, a bullet and a spent cartridge by the late Detective Raboqha
to take them for a ballistics examination.

He
testified further that although he could not recall who actually took
the pistol and cartridge for examination, he only knew
that this
eventually happened. I reserved my ruling on this particular
application especially because I had already accepted and
labeled the
firearm as exhibit 1. I however directed Mr Thulo to bring the Court
authorities that support his application. This
he did.

In the
case of Mohlokinyane Masheane v Samuel Ramotse CIV/A/9/89

which was
quoted to this Court, the Honourable Molai J held that the evidence
of one Molapo Motemekoane Masheane who handed in receipts/invoices
as
part of his evidence was in the circumstances inadmissible hearsay
for the reason that he had testified as if he was the defendant

therein whereas he was just his representative. In casu, P.W.3
testified that he was given the firearm and cartridge by his
superior.
Nowhere did his evidence suggest that he is the person who
seized the firearm and took it for ballistic examination. The two are

therefore

8

distinguishable
in that P.W.3 did not adduce hearsay evidence which would be
inadmissible.

In
addition, from the other authorities quoted to the Court, it would
appear that the rationale for the requirement to label and
produce
exhibits at the trial is so that such evidence which is considered
real is placed before the court.

In
Criminal Procedure and Sentencing in the Magistrate's Court 3rd
Edition PI12, Inigo Bing stated that

"The procedure is for the particular witness who found or came
by (my underlining) the piece of real evidence to attend Court
with
it and produce it for inspection and examination by the Court"

In casu,
P.W.3 actually handled the firearm and cartridges and gave them a
label. His evidence with regard to their identity is
therefore not
hearsay. This my opinion is reinforced by the position which was
adopted by the Court in R vs Robson (1972) 2 ALL
ER 699 at 701
wherein Shaw J stated that;

"My own view is that in considering that limited question (of
admissibility) the judge is required to do no more than to satisfy

himself that a prima facie case of originality has been made out by
evidence which defines and describes the (exhibit) up to the
moment
of production in court. "

9

In casu,
no evidence was brought to suggest that the firearm was not the
actual murder weapon. Most of the cross-examination was
directed at
showing that P.W.3 was neither the custodian of the exhibits nor the
one who took them for ballistic examination. The
evidence however
shows that he is one of the police officers who came to have it in
their possession during the investigations
and hence was able to say
that it is actually the same firearm. In the absence of any evidence
to the contrary, the Court accepts
it as the actual exhibit. This is
strengthened by the unchallenged evidence of P.W.4, the ballistics
expert. For these reasons,
I dismiss the objection raised by the
defence.

Coming
back to the evidence tendered before the Court, the admitted
statements were those of Mojalefa Ramokoena, Lemohang Mothae
and
Andreas Thakaso respectively. According to Lemohang's statement, on
the night in question, she was at home sleeping when 'Mammoelo

arrived at her house, breathing heavily and looking scared. She was
holding a firearm with which she told her that Tsoeu-Tsoeu's
child
had killed that of 'Manqosa at her place. She said that they then
went to 'Mammoelo's place but that she did not go inside
as she was
scared.

10

Thakaso's
statement was to the effect that after he received a report that the
deceased had been shot at 'Mammoelo's place he went
there and found
him lying dead. He observed a wound below the deceased's right eye.
He also saw a blanket and jacket which were
said to belong to the
accused. He identified the body of the deceased to the doctor who
performed the autopsy at Queen Elizabeth
II hospital, on the 30th
April 2001. The post-mortem report which was also admitted showed
that the cause of death was a gun-shot
wound.

The
defence's evidence was the accused's sole testimony. According to
him, on that fateful day he started drinking at around 12.00
noon
until late afternoon when he went to 'Mammoelo's place. He then
ordered one quart beer bottle as he wanted to leave but could
not
because 'Mammoelo did not give him his change. Accused told the court
that 'Mammoelo said that he would not leave as he no
longer came to
her house to see her daughter (P.W.2). He then told her that he no
longer loved her daughter whereupon 'Mammoelo
called P.W.2 against
his will. P.W.2 came and he told her that it was her mother who
wanted her and not him. P.W.2 then informed
her mother that she no
longer loved the accused as he was a womanizer (sefebe).

11

Accused
testified further that he asked 'Mammoelo to reprimand her daughter
but the latter continued to call him names until he
got offended and
insulted her by her mother's private parts. He says that at this
stage P.W.I who had arrived with the deceased
joined in the quarrel
and also insulted him by his mother's private parts.

According
to the accused's version, during this exchange, the deceased did not
say anything. The accused attempted to assault P.W.I
with a stick as
she continued insulting him and the latter ran behind her mother. He
further told the court that 'Mammoelo told
him that he would rather
kill her first before killing her children at her home. It was
however accused's story that he had not
threatened to kill anyone. He
went on to show that when he tried to get hold of P.W.I, the deceased
intervened and that 'Mammoelo
produced a firearm from her waist.
Accused then put some distance between them and himself whereupon he
heard the report of a gun
and ran away leaving behind his blanket and
jacket. He then learned of the deceased's death on the following
morning on his way
to fetch his things.

From the
evidence as a whole, facts which are common cause are that on the
night in question, the accused went to the house of 'Mammoelo
who is
since deceased and bought a quart beer bottle. On the same day, the

12

deceased
also arrived at the house and ordered a beer. At some point the
people who were in the house were the said 'Mammoelo, P.W.I
her
eldest daughter and the deceased's lover, P.W.2, her youngest
daughter who used to be the accused's lover, the deceased and
the
accused. Both the accused and the deceased were drinking.

It is
also common cause that during this time, some disagreement arose
concerning the accused and P.W.2's relationship which culminated
in
P.W.2 leaving the room and going into another. It is also common
cause that insults were exchanged between the accused, 'Mammoelo,

P.W.I and P.W.2 and that at some stage during the argument, the
deceased was fatally shot with a firearm.

It is on
the basis of these facts that the issue which this Court has to
determine is who on that fateful day produced the gun and
fired a
shot at the deceased thereby causing his death. According to the
crown's evidence, the gun belonged to the accused who
they said was
in a belligerent mood on that night, insulting people and threatening
to kill P.W.2 because of relations which had
gone sour between the
two of them.

13

It his
heads of argument, it was Mr Thulo's contention that the Court should
reject the crown's evidence for the reasons that it
was inconsistent
on the material aspects. Indeed Under cross-examination, P.W.I and
P.W.2 did contradict one another on some aspects
of the evidence,
however, in the Court's opinion, the contradictions were in respect
of unimportant facts such as firstly who arrived
before whom on that
night between the accused and P.W.I who was in the company of the
deceased, secondly who gave the beer to the
accused and lastly what
were 'Mammoelo's actual words to the accused when she gave him the
beer.

Authorities
abound on the issue of certain inconsistencies in witnesses'
evidence. It has been generally stated that such inconsistencies
do
not necessarily suggest that witnesses are deliberately telling the
Court untruths but rather that events which occurred a notable
time
in the past cannot be told with the same precision otherwise there is
the danger that such evidence was rehearsed and/or orchestrated.
See
the decision of the Court of Appeal in Masupha Moshoeshoe and 3 Ors v
R 1991-96 LLR Vol 1 783 at 785 where Leon J.A as he then
was had this
to say;

"Counsel for the appellant referred to certain differences on
matters of detail between the Crown Witnesses. These are to
be
expected in a case of this king (sic) with honest witnesses. Indeed
if they told exactly the same story in al (sic) respects
one would
suspect a conspiracy. "

14

As Ms
Shale rightly submitted, under cross-examination, P.W.I stood firm On

the
material aspects of what the conflict was about, to wit, that the
accused was insulting P.W.2 and their mother, threatened to
kill
P.W.2 and was in possession of a firearm which he eventually used to
fatally shoot the deceased after the deceased intervened
when he was
trying to hit her with a stick.

True
enough, some of the answers she gave during cross-examination
revealed that some of the facts did not appear in her previous

statements which she made to the police. However, in the Court's
opinion, these were not material to the issue of who killed the

deceased. This is more so when account is taken of the fact that the
first docket containing the witnesses' statements went missing
as
well as the one that was put together after. It would therefore be a
tall order to expect a person to give a statement on three
different
occasions word for word, as if she was reading from a book.

On the
principle as stated in Moshoeshoe's case (Supra,) naturally a person
will omit and/or add certain facts each time s/he relates
an
incident. What is

15

important
is that the gist of his/her account should be the same especially on
the material aspects of his/her story. Having said
this, suffice it
to say that as far as the conflict, the insults, the threats and the
shooting were concerned, P.W.l's evidence
was basically the same and
it was corroborated by P.W.2 on most of the material aspects.

However,
P.W.2 showed that she did not know who had shot the deceased as she
had left the room by that time. She however confirmed
that at some
stage after the struggle for the door between her mother and the
accused, she heard from the other room what sounded
like a glass
falling. Taking all these factors into account, the position as
stated in the case of Julius Pone v Director of Public
Prosecutions
1999-2000 LLR & LE 214 (C of A) does not apply in casu.

Mr Thulo
also suggested that the crown's evidence was a fabrication designed
to protect the fact that it was the two crown witnesses'
mother who
produced a firearm and mistakenly shot the deceased while her
intention was to shoot the accused. If this argument were
to be
accepted by the Court then it wouldn't make sense why P.W.2 would
stop short of corroborating her sister on the fact that
she also saw
who shot and killed the deceased. She did

16

not do so
and in the opinion of the court this negates the suggestion that the
two sisters fabricated the facts. P.W.2 was found
to be reliable and
her evidence trustworthy.

Coming to
the accused's version, he testified that 'Mammoelo is the one who
produced a firearm and shot and killed the deceased.
However, he
contradicted himself on the material aspects such as how drunk he was
on that day and how as he alleges, the deceased
was actually shot. In
his evidence in chief, he testified with certainty that 'Mammoelo
shot the deceased with a bullet which was
meant for him with him
still in the room.

Under
cross-examination he said he did not hear the gun-shot as he had
already run outside. He then changed his story and said he
did hear
the report of a firearm from outside which story he changed again and
said he was not even sure what the sound was and
that it could have
been the echo of his boots when he jumped out. Assuming that the late
'Mammoelo shot the deceased after accused
had already run out, the
question would be why would she do that as there clearly was no
animosity between the two of them from
the evidence in toto.

17

It was
also established through the evidence that the accused was drunk on
that particular night. Although under cross-examination
he denied
this, in his evidence in chief he did admit to having been very drunk
and the Court finds the latter as the more probable
when account is
taken of the fact that he himself told the court that he had been
drinking non-stop since midday.

The
above-mentioned contradictions made him a very unreliable witness in
the eyes of the Court. Even if his story were to be believed,
this
Court finds it ludicrous for him to suggest that an ordinary Mosotho
woman of the age and caliber of the late 'Mammoelo would
suddenly
produce a firearm from her waist and aim a shot at another person,
having kept it on her person all the time. While this
is not totally
impossible, the Court finds it highly improbable and not even
reasonably possibly true and therefore rejects the
accused's story as
totally false.

There is
a plethora of authorities that if there is any reasonable possibility
of the accused explanation being true, then he is
entitled to his
acquittal. See the case of R v Difford 1937 AD 370 at 373 and other
authorities cited therein. However, as I have
already shown such is
not the position in casu.

18

In
addition, there is even no logical reason to believe that the late
'Mammoelo owned and/or kept a firearm on her person not to
mention
that there was no evidence to suggest that she knew that the accused
would be coming to her house on that day so that she
could have armed
herself in readiness for the altercation that ensued.

On the
issue of how the firearm came to be in the possession of 'Mammoelo,
the crown's evidence per P.W. 1 's version showed that
after the
accused had shot the deceased he just stood there and watched the
deceased and that is when 'Mammoelo snatched it from
him. The
inference which the Court draws from this evidence is that after
realizing the enormity of his actions, the accused sobered
up and the
fight went out of him as sanity came back and he just stood there
bemused by what he had just done.

Mr Thulo
also suggested that the late 'Mammoello was the culprit and the
reason why P.W.2 took the pistol from her was so that she
could get
rid of the latter's finger-prints. On this aspect, the Court finds
that no evidence was led on the question of how many
sets of
fingerprints were found on the firearm or to whom they belong. This
argument therefore does not take us anywhere. However,
even if the
Court were to accept this suggestion, under

19

normal
circumstances and when everything is considered, ordinary Basotho are
not that knowledgeable about the concept of fingerprints
on weapons
and what the implications might be, least of all when circumstances
were as unsettling as what had just occurred on
that day. These are
normally acts of hardened criminals or scenes that one sees in
movies. It is therefore most probable that 'Mammoelo
snatched the
firearm as a result of shock and for fear that the accused might use
the it again.

Over and
above these factors, accused's conduct after the shooting incident is
found to have been very peculiar. If his story were
to be believed by
this Court, how does he explain leaving the place after as he
alleges, someone had just been shot in his presence
and not report
the incident to anyone at all either on the same day or the following
morning when he allegedly fled fearing for
his life and yet
nonchalantly purport to go back to the same place to collect his
blanket and jacket as if nothing had happened?
The Court finds this
conduct by the accused totally unusual. It cannot be said to have
been that of a reasonable man. If anything,
it suggests that he acted
that way because indeed he was the culprit. I reject the story as
totally false.

VERDICT

20

The next
issue for consideration is whether accused should be found guilty of
the crime of murder. Murder is defined as the unlawful
and
intentional killing or causing the death of another human being. From
the evidence as analyzed above, two of the elements of
murder have
already been established, to wit, unlawfulness and causing the death
of the deceased. The next question to consider
is whether on the
basis of the evidence, the accused had the intention to kill the
deceased. In a number of authorities, it has
been stated that for the
crime to be murder the Crown has to prove intention beyond a
reasonable doubt as against negligence.

The
evidence has shown that not only did the accused threaten to kill a
person that day (P.W.2) whilst he was generally aggressive,
but that
he also directly told the deceased that he would show him as the
latter was obstructing him from doing what he wanted
to do. He then
went ahead and pulled the trigger whereby he fatally shot him. The
evidence also shows that although the initial
intention of the
accused had been to kill P.W.2, he ended up killing the deceased. The
accused's act was therefore deliberate and
he had the direct
intention to kill the deceased.

21

For the
above reasons, the Court finds that the crown has discharged its onus
of proving its case beyond a reasonable doubt. The
undisputed
evidence also showed that the accused had been drinking since around
twelve noon (12.00) that day and that he was very
drunk. It follows
that in his drunken stupor he was not thinking as clearly as he
ordinarily would have when sober. Although not
excusable, this factor
negatively affected accused thinking faculties on that day and
thereby lessening his blameworthiness.

Mr Thulo
also correctly submitted that there is no evidence of accused having
Premeditated the killing and that he acted under the
influence of
liquor, the deteriorating love affair and simply overreacted by his
actions.

On the
basis of the above reasons, I accordingly find the accused guilty of
murder with extenuating circumstances.

My
Assessor agrees.

SENTENCE

In
mitigation, the Court was told that the accused is a first offender,
is

married
with two children the older one being a ten (10) year old who

22

attends
school and the younger a one and half year old baby. He is the sole
bread winner who supports his family through farming.

Sentencing
is usually the most difficult part of the trial especially where a
person's life has been lost. The Court has to try
and strike a
balance between factors adduced in mitigation of the accused such as
how his dependants will suffer as a result of
his incarceration and
the fact that the deceased also left his family and/or dependants.

I take
into account the fact that murder is a capital offence which carries
with it maximum punishment in this country. Naturally
where the Court
finds that the death sentence is not the appropriate one in any given
circumstances, imprisonment is usually considered
the next most
appropriate one.

As His
Lordship, the Honourable Molai J aptly put it in Rex v Moferefere
Mphuthi CRI/T/107/2001, Lesotho prisons are not some Nazi

concentration camps where people used to be subjected to the most
inhumane treatment. Instead, our convicts are given the basic

necessities of life free of charge. They undergo rehabilitation so
that they can fit back into society at the end

23

of their
term. They also get different kinds of training with the aim to help
them make a better life for themselves and their dependants
once they
are out of prison. Over and above this, they still enjoy visits from
family and friends until they finish serving their
sentence.

On the
other hand, the family and friends of the deceased can never see him
nor hear his voice again. He is taken away from them
forever,
including his financial, emotional and other support.

Over and
above striking a balance between these interests, the Courts also
have the duty to discourage and punish crime. It is not
a disputable
fact that taking of one's life has become the norm in this country.
People have lost the respect of others' right
to life. This is
evidenced by the increasing number of murder cases that the High
Court tries every week. This kind of attitude
towards life and the
disrespect for the law must be discouraged by the Courts.

Bearing
all these factors in mind, I accordingly sentence the accused to
imprisonment for a period of fifteen (15) years.

24

Exhibit 1
shall be forfeited to the state.

N. Majara

JUDGE

For the
Crown : Ms Shale and Ms Khubetsoana

For the
Defence : Mr Thulo

25