HIGH COURT OF LESOTHO
HON. MR JUSTICE S.N. PEETE
DATE : 26th APRIL 2005
1. The two accused face a charge of murder, it being alleged that on
or about the 15th January 2002 and at or near Ha Pitso in
district of Berea, the accused one or other of them unlawfully and
intentionally killed Malejone Letsaee. To this charge they
2. In support of the charge, Ms Makoko for the crown called Mpata
Samonyane (P.W.2), who informed the court that the deceased
lover (concubine) and that on the 15 January 2002 he attended a
stokfel at Ha Pitso at the house of one Khauhelo Ntsapi.
liquor and music; in his company were Accused No.l, accused No.2?
Thabo Fako and many other people; he was sharing beer
3. He says he later called the deceased out for a lover's chat and
that they both went out into the dark night; he continues to
as they chatted he saw three people coming towards where he and
deceased stood. As they arrived or passed, he recognized
by his voice when he said "hey". He says two of these
people suddenly returned and recognized accused 1
and Accused 2 as
they grabbed the deceased and dragged her along. He says he did not
intervene but returned into the stockfel house.
After some time,
Accused no.l came back into the room - the deceased was no longer
4. After an alarm had been raised by Accused no.2 on the following
morning, the dead body of the deceased was found at a place
Bobeta. Inspection indicated that the deceased had been strangled and
left dead and prostrate in the veld.
5. He went to say that he had met Accused No.l later near
Phuthiatsana river and the latter had told him that he had assaulted
the deceased with a stick only on her pelvic area and had not poked
her private parts.
8. It should be noted that no mention of choking or strangling was
made at that stage. He says Accused no.l explained that they
attempted to assist her but she had asked them to let her alone.
9. During cross examination by Mr Lesuthu for both accused, P.W.2
admitted that even Accused no.2 was also in love with the deceased.
It was put to P.W.2 further that the accused never strangled the
10. Both accused admit having assaulted the deceased on that night;
but denied strangling her thus causing her death. The evidence
linking the accused to the strangulation is circumstantial, and this
means that in order to substantiate the murder charge there
no reasonable doubt that it was the accused who strangled her. The
fact that a third person was at the scene - Ntala
-allegedly also in love with the deceased -raises serious doubts
about his own participation in the tug-of-war over the
deceased - a
concubine of them all.
11. Accused no.2 in giving evidence told the court that on the
following morning he went to the scene to recover his cap; and
found the naked corpse of the deceased and thereupon raised alarm.
Raising alarm is consistent with someone beholding a
someone had strangled the woman on the previous night, a question
mark remains unanswered as to what Ntala Kolotsane
12. A lurking but a strong doubt has pervaded this case throughout.
There may be strong suspicion that both the Accused strangled
deceased. That is not enough. Assault her grievously they did. That
Accused No. 1 is alleged to have made an exculpatory statement
P.W.2 to the effect that they (him and accused No.2) had only
assaulted her with stick on the pelvic area and had tried to assist
her towards her home, indicates that they knew of no strangulation.
13. The other fact is that accused no.2 even raised an alarm when he
discovered the deceased now lying dead in the veld.
14. Detective Sergeant Mosuhli examined the corpse on the 16 January
2002. During cross examination he told the court that the
gave him an explanation to the effect that "they chocked her
because she was making noise" Somehow this damaging
was not reduced to writing in the presence of a magistrate. Section
228 (2) of the Criminal Procedure and Evidence Act
"228. (1) .............................
(2) If a confession is shown to have been made to a policeman, it
shall not be admissible in evidence under this section unless
confirmed and reduced to writing in the presence of a magistrate. "
Since this aspect of the sergeant's evidence cannot therefore be
regarded as admissible, strangulation has not been linked to the
accused by any credible evidence.
15. In the circumstances, although there is strong suspicion that
the two accused might have also strangled the deceased after
her with sticks, there is no evidence sufficient to prove that the
two accused did strangle the deceased.
16. The only verdict open upon the insufficient facts of the case is
that of "guilty to the crime of assault with intent
grievous bodily harm." Both accused are found as guilty.
Gentlemen Assessors agree.
Sentence: Two years or two thousand maloti half suspended for three
years on condition that accused are not convicted of an offence
involving injury to person. Fine to be paid before 31st May 2005.
: Ms Makoko
Appellants : Mr Lesuthu
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