COURT OF LESOTHO
by Honourable Acting Justice M. Manase On 6th June, 2006
accused appeared before this court charged with having committed the
crime of murder. It is alleged that he unlawfully and intentionally
killed Khotso Shale. The incident is alleged to have occurred upon or
about the 6th October, 1996 and at or near Bus-stop Area
was first enrolled for prosecution before this court on the 6th
December 2005. It could not be prosecuted on that day because
Ngcobo who was to represent the crown was alleged to have gone to
Mapoteng in relation to another case which she was handling.
defence lawyer, Mr. Teele was not in court presumably because he
already knew that the case would not be prosecuted on that
Mokorosi had appeared before this court for the crown and at the
request of Ms. Ngcobo.
was then postponed for hearing from the 6th to the 9th June 2006
Messrs L. Maqutu and Teele for the crown and defence
appeared before this court for the case to be prosecuted on the said
accused pleaded not guilty to the charge. The plea was said to be
consistent with the instructions which the defence counsel
THE FACTS OF THIS CASE ARE AS FOLLOWS:
deceased, one Khotso Shale, the accused's wife, one Mary Hloele were
working together in Mafeteng at the National Security Services
(N.S.S.) offices. The deceased was the officer commanding the N.S.S.
in Mafeteng while Mary Hloele was a Senior Clerk in the said
Hloele resided at what are referred to as police lines next to the
Mafeteng Bus-stop. (These are government houses). The deceased
resided in Mafeteng, a short distance away from Mary's house. The
said Mary Hloele resided thereat with one Likomo Maele (Pwl)
accused Monamoli Hloele is an ex-police officer who resided in Butha
Buthe where he was operating a taxi business. He was in
the habit of
visiting his wife in Mafeteng. If accused had come to Mafeteng with
his taxi, he used to park it next to the kitchen
but just outside the
accused and his wife had two children who were also residing at
Mafeteng with their mother. The said Likomo used to sleep in
kitchen with the accused's two children while their mother slept in
deny in question; the 6th October, 1996, the accused had gone to
Mafeteng to visit his wife and children. He had arrived
the afternoon. He had not come with his taxi.
duly proceeded home after work. They all later went to bed to sleep.
The accused and his wife were sleeping in the bedroom.
was a four roomed house but the other two rooms were occupied by
another officer who was also a member of the N.S.S.
were sleeping, there were some gun shots reports outside that house.
Pwl was awoken by the said gun shot reports. She
realized that the
exit door to the kitchen was closed and locked. The lights had all
been put off. Pwl went to the bedroom in which
the accused and his
wife had been sleeping. She found her employer, Mary kneeling on the
bed but she realized that the accused
was not in the bedroom.
inquired from Mary as to what was happening. Mary explained to Pwl
about the gun shot reports and that the accused - her husband
gone out to investigate but there were then suddenly some gun shot
reports. Pwl then hit the wall adjacent to Mr. Moorosi's
room in an
attempt to wake Moorosi up.
thereafter Moorosi and one Mokebisa went to Mary's house. Mary,
Moorosi, Mokebisa and Pwl then went outside to see what
happening. When they reached the veranda of Mary's house they heard a
sound of someone gasping for air. The accused was then
nowhere to be
seen around that place.
they were standing there, looking at the man who they had found
fallen down, the accused then arrived thereat in the company
police. They were traveling in a police vehicle. The accused later
went away with the police after the accused had dressed
up. Pwl told
the court that she did not know what had happened but she heard on
the next day that the deceased had passed away.
Neo Mokebisa told the court that he was a colleague of the deceased
and Mary. That he too stayed in Mafeteng and that his
house was the
second house from Mary's house. He had been with the deceased and
others at the restaurant of one Bulara. That he
left the deceased and
others there when he went to his home at about 8:00 pm on that day.
That when he was sleeping at or between
1:00 am and 1:30am, he was
woken up by Moorosi one of his colleagues. That just before Moorosi
went to him, Pw3 had heard a gun
short report coming very close to
where he resided.
then reported to him about an incident which had occurred between the
accused and the deceased. Following that report, they
to Mary's home. There they found a group of people already gathered
thereat. He also found the deceased who was
already dead and covered
with a lot of blood lying down. The deceased's body was lying down
next to the house
accused's wife. This witness was there when the body of the deceased
was taken to the mortuary.
No8158 Tpr. Likhama was, on that day in question on duty from 10:00
pm to 6:00 am. At around 2:00 am, the accused went to Mafeteng
Charge Office. He surrendered himself to Pw4; made a report to him
about this incident. Accused who, according to the testimony
was half naked then handed a 7.65 pistol of serial no. 66526 with no
rounds of ammunition to Pw4. Pw4 then telephoned Sgt.
Letsie and Tpr.
Ranyali to whom the accused later repeated his report.
Letsie and Tpr. Ranyali then went to the scene of crime with the
accused. Pw4 later cautioned the accused and gave him a charge
murder. He also handed the gun in question to the CID police. This
gun was handed in as an exhibit. It was marked exhibit 1.
2357 Sgt Letsie corroborated the evidence of Pw4. He further
testified that he too had earlier at about 2:00 am heard some
shot reports towards the direction of police houses at Mafeteng bus
stop. Following a radio message from Pw4, Pw5 went to the
Charge office where he found ex-Tpr. Hloele who made a report to him
and handed to them a 7.65mm auto pistol about which
he made an
went to the scene of crime where he also found and saw a body of a
male person lying down next to the veranda of the house
in which the
accused's wife resided. That body was later identified as being that
of one Khotso Shale. Pw5 also found a 9mm gun
under the window of
It was lying down close to where the deceased was lying down. It had
an empty magazine and it was open. It was of serial
numbers 245 PNO
3943. This was later handed to Mr. Mothibeli who was in-charge of the
CID in Mafeteng. The said gun was found to
have been in a good
deceased, whose clothes were covered in blood was subsequently
transported to the mortuary. He did not sustain any further injuries
from the said scene of crime to the mortuary. It was later discovered
that the said 9mm pistol belonged to the deceased. Pw6 who
commanding CID in Mafeteng attended the scene of crime with same of
his colleagues. He is the one who examined the body
of the deceased
who he had identified as being that of captain Khotso Shale. Pw6
testified that he identified 11 open injuries
which the deceased has
repeated the examination of the deceased's body once more at the
mortuary. His observations were that the injuries upon the
were still as when he saw same at the scene of crime. It is his
further evidence that the deceased did not sustain any
injuries from the scene of crime to the mortuary.
witness went back to the scene of crime on the next morning at about
6:00 am. Here he found, and picked up six (6) empty shells
verified to be of a 7.65mm pistol and some five (5) empty shells
which were verified to be of a 9mm pistol, and also
some 2 dead
saw a pool of blood at the place where he had found the deceased
lying down on the previous night. The evidence of Pw7,
No. 6413 I/O
Mofoka was admitted excluding those positions which are irrelevant
hearsay evidence. This witness corroborated evidence
that the 9mm
pistol was an official firearm which had been issued to the deceased.
also attended the scene of crime with Pw7 corroborated the evidence
of Pw7 as to the finding at the scene of crime. This
handed the pistols/guns in question and the empty shells and dead
bullets found at the scene of crime. He later took
some swabs from
the deceased's body and had all the said items send for ballistic
examination. Same were duly tested and were later
Mafeteng CID together with the 9mm and the 7.65mm pistols.
to the P.E. record, the swabs were labeled exhibit 3 collectively,
the dead bullets exhibit 4 collectively while the empty
collectively labeled exhibit 5. Very unfortunately and as often
happens when there has been a delay in the prosecution
cases, some of the above-named exhibits were lost, to wit the swabs.
They could no longer be found in the exhibit room
in which they had
dead bullets, empty shells and the two pistols were handed into court
as exhibits and labeled 1 collectively. Pwl testified
purpose for having taken the swabs from the deceased's hands was to
determine whether or not the deceased had himself
fired any of the
guns which were found at the scene of crime.
no written report was filed as to the results or the findings of the
ballistic expert with regard to the said swabs.
This court is
therefore not in a position to say whether or not the deceased ever
fired his own gun.
That is a
sad situation and one may point out that it is absolutely essential
and imperative that proper exhibit rooms and storage
exhibits be provided and that they be manned by trained/qualified
personnel. The loss of exhibits hampers the administration
instant case, the accused has allegedly killed the deceased using a
gun. There is evidence that the 9mm pistol which was
found at the
scene of crime near where the body of the deceased was found belonged
to the deceased. The accused's story is that
the deceased had fired
at him (accused) first at the time when the accused went out to
investigate as to who the intruder who was
at his (accused's) house
was at that time of the night.
will never be known because the swabs which could probably shed some
light at least on the issue as to whether or not
the deceased fired
his gun was never unearthed due to the loss of the said swabs. This
court will never know if indeed the deceased
did empty his magazine
while he shot at the accused.
accused has raised the defence of self-defence. Accused's evidence is
that the deceased was an intruder at his (accused's) home,
turn was the one who shot first at the accused. The accused claims
that he had a right to defend himself and his family
intruder who had gone to his home at that late hour of the night.
This intruder did not respond when after
on the window in the room in which the accused and his wife were
sleeping, was asked to identify himself.
the accused had no idea at all as to the identity of such an
intruder. It is a matter of common cause that the accused was
all injured in the shooting incident between him and the deceased.
The post mortem report indicates that the deceased's
death was due to
ruptured heart. It shows clearly on item (9) that the deceased had
sustained multiple gun shot wounds mostly on
the left side.
clear from the evidence adduced by the crown that there were no other
people outside the house of the accused's wife when
incident occurred. What is clear is that the deceased died as a
result of the injuries he sustained during the shooting
which occurred between him and the accused at the house in which the
accused's wife resided in Mafeteng.
story as to what happened at that place on that fateful night is that
of the accused. All the crown witnesses who testified
preparatory examination, whose evidence has been admitted in this
trial did not see nor witness that incident as it occurred.
who was then in the house with the accused and his wife when that
shooting incident occurred out of her employer's house
had not seen
it. She did not know what let to that shooting incident.
the crown witnesses, including Pw9 D/Tpr. Chonelanga (No.8165 who
gave viva voce evidence during this trial, could tell
the court what
happened that ultimately resulted into the shooting incident between
and the deceased. Pw9's evidence as to his observations at the scene
of crime and as to what he later did once he had found
body outside the accused's wife's house and at the mortuary did not
assist in anyway in advancing the evidence of
of the accused that the intruder who knocked at the window of the
house of his wife at such late hours of the night, was
the one who
shot at accused first cannot be challenged. It is his (accused's)
story that he shot at that intruder in self-defence
as he believed
that the intruder posed a threat to his (accused's ) life. This story
can not be denied and in the circumstances
of this case it is
reasonably possibly true.
has been invited by the crown to determine whether in the
circumstance of this case, the accused acted as he did because
believed that his life was in eminent danger, and or whether the said
intruder posed an eminent threat to the accused's life
actions of the accused upon the deceased.
question can be answered in the affirmative; regard being had to the
circumstances of this case. It has already been shown
that it is a
matter of common cause that accused, his wife, their children and
their domestic helper were already asleep when between
the hours of 1
and 2 am there was a knock on the window of the accused's wife
bedroom. That the person who knocked thereat did
not respond when
asked by the accused to identify himself. That when the accused went
out to investigate who that person was, that
person then shot at the
accused and the accused then returned that fire in self-defence.
the accused had a duty to defend himself and his family against
whoever was at their house at such late hours of the night.
accused could not run away from there when he had been attacked at
his own house.
nothing placed before this court showing that the accused exceeded
the bounds of self-defence in shooting at the deceased
as he did. It
is also clear from the crown evidence that the accused did not even
know the person he had shot at until much later
after this incident
had occurred, (see Pw4's evidence at P.E.).
has not and it could not gainsay the accused's story. That explains
why the crown ultimately conceded that it had failed
to make a prima
facie case against the accused herein.
circumstances, this court has no alternative but to come to the
conclusion that the crown has not made a prima facie case
accused for the accused to answer.
accused is accordingly discharged and acquitted.
gun, a 7.65mm of serial numbers 66526 should be returned to the
accused on production of a valid/lawful proof that he is
gun, a 9mm of serial number 245 P.N.O 3943 which was a service issue
issued to the deceased should be returned to the office
Director of the N.S.S. or
will come to collect it should produce written authority that he/she
has been authorized to collect same for onward transmission
said Director of N.S.S. or to
: Ms. L. Maqutu
Defence : Mr. M. Teele
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