HIGH COURT OF LESOTHO
by the Honourable Madam Justice N. Majara on the 14th July 2006
the accused was initially indicted jointly with three others on
charges of murder and attempted murder respectively in
that on or
about the 10th April 1998 and at or near Qaba Lodge in the district
of Mafeteng, they unlawfully and intentionally killed
Lesiba and shot one Mofokeng Lintsa with the intent to kill him.
17th May 2005, when this trial commenced the other three accused
failed to make an appearance and the crown applied for a
of trials in terms of Section 170 of the Criminal Procedure and
Evidence Act 1981. The Court duly granted the application
trial proceeded with respect to the present accused only.
indictment was read to him, the accused pleaded not guilty to both
counts and the crown called to the stand, five (5)
support of their case whilst the post-mortem report was admitted by
the defence and handed in by consent to form part
of the crown
Mofokeng Lintsa testified that on the day in question he was at Qaba
Lodge and was on his way to the private bar when after
Benedict Lekhetho he heard the report of a firearm upon which he
found himself on the ground. It was his testimony
that he tried to
stand up but realized that one of his legs was not functioning and
that he was wounded on the right thigh. When
he looked around he
noticed that the said Benedict was holding a firearm.
to this witness, the deceased arrived moments later whereupon he saw
Benedict shoot him twice and the latter fell on the
further told the Court that during the incident the accused was
present and had a stick in his possession but he
did not see him do
anything. After the police arrived, both the witness and the deceased
were conveyed to the hospital and the
mortuary respectively and P.W.
1 was hospitalized for three (3) months.
Malefetsane Lintsa, testified that on the date in question he and the
accused were at a 'stokvel' at the house of
Phaloane Lintsa drinking Sesotho beer. The deceased then went out
carrying the witness7 stick but did not come back. Upon enquiring,
the witness learned that the deceased had left and having received
the report he followed the latter to Qaba Lodge where he found
deceased and his brother already wounded. It was P.W.2's evidence
that when he arrived, he found people from accused' home
those from his own home village engaged in a fight.
witness told the Court that he then saw Benedict shoot P.W. 1 and the
deceased respectively and that when the latter fell down,
he shot him
for the second time. He then saw the accused go to where the deceased
had fallen down and belaboured him with a stick
he was holding.
turn testified that on the said date she was walking in the direction
of the lodge when she saw six (6) men from ha Sekhaupane,
herein included, at the lodge. She then saw P.W. 1 moving in the
direction of the six men whereby Benedict shot him and
fell down. She also testified that after Benedict shot the deceased
she saw the accused hit the deceased with a stick
on the head. All of
the six men then left.
evidence was to the effect that she was an employee at the lodge and
that on the date in question she was on duty
liquor in both the private and public bars respectively. It was her
further evidence that six (6) men, one of whom was the
entered the private bar and she asked them to give her their sticks
as they are not allowed in the private bar.
to her evidence, one of the men bought a beer and after a while the
men asked for their sticks which she handed back and
they went out.
She was later told to close the bar as a fight was taking place
outside. The witness testified further that as she
left she met the
deceased and Benedict and she heard the former ask the latter why
they were fighting people and Benedict in turn
ask him whether he was
fighting whereupon he produced a firearm and shot the deceased twice.
one of the police officers who were stationed at the Matelile police
post in Mafeteng at the material time. His evidence
was to the effect
that after he received a report concerning the incident he proceeded
to the scene and met four (4) of the suspects
on the way among whom
was the accused. It was his evidence that the other three fled and
the accused remained. He warned the accused
and gave him a charge
whereupon accused gave him an explanation and a lebetlela stick.
police officer then arrested accused and proceeded on to ha Qaba with
him where he found P.W.I wounded and the deceased already
took P.W. 1 to the Mafeteng Government hospital and the deceased to
the mortuary. He told the court that it was only then
that he could
examine the body of the deceased with the help of the mortuary lights
and he observed two wounds on the head and
another on the left thigh.
accused was kept in police custody whilst the stick was marked and
kept in the exhibit room. It was however not produced before
Court as it was reportedly missing. The post-mortem report which was
handed in by consent and read into the record showed that
of the deceased's death was haemorrhage and that the deceased
sustained a gun shot wound on the left thigh and the femur
fractured. The report also showed that his skull skin was lacerated.
defence evidence in turn consisted of the sole testimony of the
accused who testified that on the date in question he left his
in the company of three men to Qaba lodge. When they entered the
private bar they were asked to hand over their sticks by
they did. After Benedict had bought them some beer he went outside
only to return after a short while and told them that
he was being
fought outside. Accused testified that he followed Benedict outside
stick in the bar and he found a fight taking place. He then ran away
and was hit with a stone on the forehead as a result
of which he also
dropped his hat.
submissions, Mr Masiphole Counsel for the defence argued that there
is no iota of evidence from the crown insofar as the
attempted murder is concerned. He prayed that the accused should be
found not guilty on this count.
basis of the evidence before the Court, I accept this submission as
correct because indeed none of it connects the accused
shooting of P.W. 1 and the witness himself so testified before this
Court. There is also nothing to show that the accused
himself with the shooting and or assault of P.W.I. Without any
further ado, I find him not guilty and discharge him
on this count.
regard to the count of murder, it was Mr Masiphole's submission that
on the one hand, the crown witnesses' evidence on this
fact was full
of contradictions whilst on the other the accused' story is
reasonably possibly true and that the Court should discharge
this count too.
of this submission is that in his testimony P.W. 1 told the Court
that the accused was present at the time the deceased
was shot but
that he did not see him do anything
P.W.2 testified that she saw the accused hit the deceased on the
stomach yet P.W.3 in turn told the Court that the accused
deceased on the head.
other hand, Mr Tlali for the Crown argued that there were no major
contradictions with regard to the evidence of the crown
that stating that one did not see an act taking place is not
necessarily a contradiction of the evidence of those
who said they
saw it happening. He submitted that on the contrary, it is accused'
story which is full of contradictions when account
is taken of what
was put to the crown witnesses during cross-examination by his
defence counsel and what he told the Court when
he was in the witness
proceed to deal with the question of the alleged contradictions in
both the crown and defence evidence respectively. Indeed,
two of the
crown witnesses testified that they saw accused hit the deceased with
a stick after he had been shot twice by Benedict
whereas P.W. 1 told
the Court that he did not see the accused do anything. The question
is- are the two statements contradictory?
Tlali's submission was that P.W.l's statement is not necessarily a
contradiction of what the other witnesses said for the reason
did not tell the Court that accused did not
anything. Instead, his testimony was that he did not see him do
anything. I accept this submission because I also do not believe
where a witness says he did not see something happen is similar to
saying it did not happen at all. Mr Masiphole's contention
probably be correct if P.W. 1 had categorically stated the accused
did not do anything but that was not his evidence.
addition, when the Court takes into account the circumstances of the
day, it is hardly surprising that this witness could have
of the things that others might have seen. There are a number of
possibilities why he failed to see the said assault,
the most likely
one being that he had also just sustained a gun shot wound and was in
all probability in pain and a bit confused
as was rightly explained
by P.W.2 when this point was raised during cross-examination.
the fight involved many people and was still going on so that it was
easy for anyone not to mention an injured person,
to miss some of the
goings-on. Needless to mention, ordinarily and even under the best of
circumstances, people do not always see,
hear or perceive things
concerning one incident in the same way. This is an undeniable fact.
issue of where the deceased was allegedly hit by the accused, true
enough, one of the crown witnesses said he hit him on
the head whilst
the other said it was on the stomach. However, both were in consensus
that the accused belaboured the deceased
with the stick. It is
therefore my view that it is not surprising that the blows landed on
the different parts of his body.
similar vein, this factor does not support the contention that the
witnesses were necessarily telling untruths or falsely implicating
the accused. The difference in their stories is therefore not weighty
enough to cast any doubt on their evidence for they are agreed
the accused did belabour the deceased with the stick. This is more
the case considering that both sides are agreed that there
was a lot
of confusion on that day.
although the accused denied that he and his companions took their
sticks when they left the private bar as was testified
by P.W.4, the
latter was unshaken that they all did. I have no reason to disbelieve
her story. This is coupled with the fact that
the accused himself did
testify that Benedict had come back into the private bar and told
them that he was being fought outside.
It is therefore highly
unlikely that any reasonable Mosotho man would simply go out, leaving
behind fully aware that his companion is being fought outside.
the accused failed to give any reason to this Court why the witnesses
would give false evidence against him. Even if
this Court were to
believe that to be the case, then there would be no reason why they
all wouldn't say he hit the deceased with
a stick. It is only two of
the five (5) witnesses who testified to this fact. It is for all
these reasons that I do not agree with
the defence submission that
the crown's evidence was contradictory.
all the above factors into consideration, it is difficult to accept
that the accused' story is reasonably possibly true that
it may be
substantially true more especially in light of the fact that as
opposed to the crown witnesses, he contradicted himself
instance when his defence was put to P.W. 1 during cross-examination
it was suggested that accused would say he heard three
before Benedict came back into the private bar to report that he was
being fought outside yet whilst in the witness box,
he testified that
the gun was fired in his presence after he had followed the said
Benedict outside. Secondly, it was suggested
to the witness that
accused would say when he arrived at the spot both he and the
fallen down. In his testimony, the accused told the Court that he was
present when the deceased was shot and fell down.
in the accused' story strengthen the Court's conclusion that his
story is not reasonably possibly true. For
these reasons the Court
rejects it as being totally false. See the decision of the Court of
Appeal in the case of Lehlehla v Rex
C of A (CRI) No. 3 of 2003
(unreported) quoted to this Court.
as the submissions concerning the evidence with regard to the
accused's hat, P.W.2's stick and whether the accused handed
same stick he had used in the assault or another one to P.W.5, the
Court is of the opinion that these are not really material
main events of the day to have any substantial relevance and/or
impact on the issues in question. The evidence has established
a reasonable doubt that after Benedict had shot the deceased, the
accused proceeded to hit him more than once with a stick.
said this, I now proceed to determine whether the accused acted
unlawfully and intentionally and killed the deceased. On
the basis of
the evidence placed before this Court, it is my view that the facts
point to the fact that the accused shared a common
associated himself with Benedict's actions by hitting and belabouring
the deceased with a stick after the latter had
already been shot
fallen down. This is so even though there is nothing to suggest that
the accused and Benedict had planned the assault.
finds authority in the case of S v Sefatsa and Others 1988 (1) SA 868
quoted with approval in S v Mgedezi and Others 1989 (1)
SA 686 where
the Court stated the prerequisites to be satisfied in determining
whether the accused acted in concert or associated
himself with the
unlawful actions of others as being that:-
must have been present at the scene where the violence was being
must have been aware of the assault of the victim(s);
must have intended to make common cause with those who were actually
perpetrating the assault;
must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of
association with the conduct of the others.
must have had the requisite mens rea in respect of the killing of
the deceased i.e. he must have intended them to be killed,
must have foreseen the possibility of their being killed and
performed his own act of association with recklessness as
or not death was to ensue.
the above prerequisites in casu, I accept Mr Tladi's submission that
the crown has established the existence of all
insofar as the accused herein is concerned for indeed it has been
shown that he was present at the scene, was aware of the
the deceased and manifested his common purpose with the acts of
Benedict by belabouring the deceased who had already
been shot with a
stick which factor also proves a manifestation of sharing a common
purpose with the said Benedict.
it is my view that although the accused might not have intended to
kill the deceased, he foresaw the possibility that
the latter might
die and assaulted him with recklessness notwithstanding this
possibility. I might also add that it is really a
pity that the
accused acted so irrationally and recklessly, especially when the
facts show that at the time, the deceased was not
posing any threat
at all either to him, Benedict or any of their other companions.
it is common cause that the deceased died as a result of the wounds
he sustained on that day and having found that accused
acted with a
common purpose with Benedict, whether or not the fatal wounds were
those caused by the gunshots and/or accused' stick
does not make any
above reasons, I find that the crown has proved its case with respect
to the charge of murder beyond any reasonable doubt
and I find the
accused guilty as charged.
find present in casu extenuating circumstances which somewhat lessen
the moral blameworthiness of the accused. These are
that firstly, the
fight and/or assault and consequently the murder of the deceased, was
not premeditated or planned. Secondly,
the accused and his companions
had been imbibing on alcohol and did not act as sober and rationale
people normally do. Thirdly
the accused hit the deceased with a stick
as opposed to Benedict's use of a firearm.
the accused used a less deadly weapon than did Benedict and had only
gone out of the private bar where had been entertaining
himself as a
result of the latter's report that he was being fought outside. He
should therefore be regarded differently from someone
sits and plans the murder of another person in a cold and clinical
way and then proceed ahead with his evil plans.
Count 1- Guilty as charged Count 11- Not guilty
difficult part of a trial is that of sentencing especially where loss
of human life has occurred. Not only does the Court
have to take into
account the personal circumstances of the accused but also the
interests of the family of the deceased and the
dictates of justice.
therefore considers that the accused degree of participation in the
murder of the deceased was lesser than that of Benedict
who has since
been at large. He did not have any previous convictions at the time
of the incident. He also has a twelve year old
child who needs a
father. He had been imbibing on the day of the incident.
other hand, the children and family of the deceased have lost a loved
one for no reason at all. They can never experience
the joy of his
company and the warmth of his love. They expect the Court to mete out
appropriate punishment to his murderers.
is also cognizant of the fact that accused is already serving an
eighteen (18) year term of imprisonment for very serious
namely armed robbery, assault with intent to do grievous bodily harm
and malicious damage to property. Although the Court
that he committed these offences after the murder in casu, it cannot
ignore the fact that
show a propensity towards serious offending on his part and that
there is a serious need for his rehabilitation.
it is the duty of the Court to discourage crime especially where
human life is lost from others' mindless acts of brutality.
sanctity of human life cannot be overemphasized and those who
disrespect it ought to be appropriately punishment as a deterrent
other would-be offenders and also to show the Court's displeasure at
such barbaric acts.
It is on
the basis of all these reasons that the accused is sentenced to
imprisonment for a period of ten (10) years. This sentence
concurrently with the one he is currently serving.
crown : Mr Tlali
defence : Mr Masiphole
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