HIGH COURT OF LESOTHO
by Honourable Madam Acting Justice M. Mahase On 17th February, 2006
accused appeared before this court charged with having committed the
crime of murder.
alleged offence is said to have occurred upon or about the 28th June
2003, and at or near ha Matau in the district of Leribe.
23/8/2005 the accused appeared before this court. He tendered a plea
of guilty to culpable homicide. The crown admitted this
crown then outlined its facts and later reproduced same; typed and
handed same to court as its evidence to support its
case against the
defence did however indicate that it did not agree with the facts
with regard to the evidence of Pw2 and Pw4. The crown and
then agreed that since they did not agree on the facts as outlined
and as recorded on the typed copy, evidence should
then be led and
that the pleas of the accused be changed to that of not guilty to the
charge of murder. That changed plea was accordingly
which were allegedly said to have been uttered by the accused, and
which words the defence denied were ever uttered by
the accused are
"............are you still alive."
defence was adamant that this it is not true that such words were
ever uttered by the accused immediately after he had assaulted
of this case are briefly that on the day in question, the accused who
was then working in the mines in the Republic of
South Africa had
arrived at his home at ha "Matau in the Leribe district at about
accused's wife had no prior knowledge that her husband would be
coming home for a weekend on that day. All was well until at
midnight when there was a knock from the outside window of the
accused's home who was then already in bed with his wife and
sometime before either the accused or his wife responded to that
knock. The person who was knocking at that window then remarked
unless the door was opened he would cause damage to that house.
accused then ordered his wife to go and open the door for that
person. The wife obliged and as she went to the kitchen to go
open the door, the accused went after her and he went into the
bathroom and or he stood behind the bathroom door out of sight
that person who had knocked at his window at that time of the night.
opened the door for that person, the accused's wife asked that person
what he wanted at her house at that time of the night.
The said man
angrily replied that he had been called by the acccused's wife to her
home but that she took a long time to open for
him although it was
very cold outside.
accused's wife then turned to go back into her house and she headed
for her bedroom with that man following closely after her.
had gone passed the bathroom and as they headed to the bedroom, the
accused left the bathroom, took a knife which was
allegedly left on
the kitchen table. He followed after his wife and that man.
accused then assaulted that man by stabbing him at the back of the
head with that knife. There is however evidence that the
assaulted with a homemade sword.
then ensued between the accused and the deceased. The accused did
however over come the deceased. He belaboured the deceased
the accused realized that the deceased was tired and could not fight
back anymore. The accused then left his home to
go away to call his
neighbours. At that time the deceased who was clearly seriously
injured could no longer stand up nor speak.
He was lying down on the
floor in accused's bedroom.
accused first went to the home of Pwl, Thabo Rakhunoane. Accused
reported to Pwl and Pw2 'Mamolefi, (the wife of Pwl) that he
(accused) had caught somebody at his home. Both Pwl and Pw2 went to
the accused's home with the accused.
arrival there, they indeed found the deceased lying down in the
bedroom of the accused. According to them, the deceased had sustained
multiple open wounds on the head. Also still in the presence of these
two witnesses, the accused further assaulted the already
deceased. Pw2 further testified that the accused went on further to
tear the deceased's clothes with a knife.
Joseph Thejane, also a fellow villager/neighbour of the accused,
deceased, and Pwl and Pw2, was awakened by Pwl who (Pwl) made
report to him (Pw3) about this incident. All, Pwl, Pw3 and Pw4 (Pw3's
wife) also went to the home of the accused.
arrival they found that the deceased was no longer in the house
/bedroom of the accused. Deceased was then found on the veranda
the accused. The evidence of both Pw3 and Pw4 corroborates that of
Pwl, and Pw2 that the deceased had sustained multiple/several
wounds on his head. It is also the evidence of Pw2 that the accused
pulled the deceased out of his (accused's) bedroom at
the time when
Pwl had gone away to call Pw3. This explains why the deceased was
found on the veranda by Pwl, Pw3 and Pw4.
Pwl and Pw5 (Pw5 deceased's father) who had been called to accused's
home by Pwl left to get a vehicle with which to transport
deceased to hospital. The only people who were then left behind in
the company of the accused and the deceased were Pw2 and
two witnesses have testified that there was a time when the deceased
tried to crawl out of that veranda. The accused
realized this and he
then remarked saying "are you still alive". The accused
the deceased and assaulted him further with the lebetlela stick.
deceased was already helpless. The two crown witnesses told the court
that they then ran away behind the house of the accused
feared looking at what the accused did to the deceased. Indeed when
Pw3 went back there, he found Pw2 and Pw4 behind the
and on making inquiries as to what they wanted thereat they reported
that they ran away to that place behind the
accused's house when the
accused further assaulted the deceased in their presence.
also evidence which indicates that the accused once again assaulted
the deceased with a stick at the time when the deceased
loaded into a wheelbarrow, which wheelbarrow was used to transport
the deceased to the vehicle of Tpr. Fokane.
Pw3 and Pw5 testified and corroborated each other that the accused
once more assaulted the deceased after the deceased
had been loaded
into the wheelbarrow. Pw4, did not see this happening because when he
later went back to the accused's home, he
found the deceased already
in the wheelbarrow. He was not there at the time that the alleged
further assault upon the deceased
by the accused happened.
gone back to his home to wear something warmer as he was feeling
as it may the deceased was ultimately conveyed to Motebang hospital
in Tpr. Fokane's vehicle. Tpr Fokane drove that vehicle.
accompanied his son to hospital.
no evidence showing that the deceased sustained any other injuries
from the accused's home to the said hospital. The deceased
treated by a medical doctor thereat but he succumbed to his injuries
and died at that hospital on the morning of the following
crown witnesses' evidence corroborate each other that the deceased
had sustained multiple open wounds on the head. This
has been further
corroborated by the evidence of Pw6 and Pw8 whose statements were
admitted by consent as part of the evidence
herein. Pw8 being the
person who identified the body of the deceased to the medical doctor
before a post mortem was performed on
medical report of a doctor who attended to the deceased before he
died when he was first taken and admitted to hospital, exhibit
indicates that the patient had multiple scalp, leg and arm
lacerations. His opinion is that the said injuries had been caused
a sharp object.
B, the post mortem report also shows that the deceased had multiple
scalp lacerations and multiple lacerations on the legs
and arms. It
(exhibit B) further shows that death was due to excessive blood loss.
evidence as contained in exhibits B and C corroborate each other as
to the injuries which the deceased was found to have sustained.
in turn corroborate the other crown witnesses" evidence in this
further told the court that on his arrival at the accused's place,
where he indeed found his injured son, he observed that
was holding a sword in his hand. This evidence has not been
challenged in anyway by the defence.
also testified in his admitted statement, that on the 10th July 2003,
and while he was on duty at Maputsoe police station,
surrendered himself to him (Pw7). That the accused handed to this
witness a table knife with a black handle and a homemade
sword with a
yellow cloth on the handle.
witness duly cautioned and identified himself to the accused, gave
him a charge of murder. Last but not least he kept the said
exhibits; and thereafter arrested the
It is upon the above evidence that the crown relied to proof its case
against the accused.
defence, the accused does not deny having assaulted the deceased. He
admits that the only time when he assaulted the deceased
was at the
time when the deceased was in his (accused's) bedroom with the
accused's wife. He denies ever having further assaulted
at the time when the deceased had been lying down helpless on his
(accused's) veranda and after the deceased had been
loaded into the
accused raised the defences of provocation and self-defence . It is
his story that he was provoked by the deceased who went
to his home
at midnight, knocked on the window and then threatened to damage
accused's house unless his (accused's) wife opened
the doors to let
him into the accused's house.
he was provoked by the way the deceased angrily spoke to his wife;
accusing his wife of taking a long time to open the
door for him
(deceased) while the accused's wife had called him (deceased) to her
house and well-knowing that it was cold outside.
It is the accused's
further story that he was frightened by that person who knocked at
his window at that time of the night, so
also was his wife.
however told the court that he ordered his wife to go and open the
door for that man. That he went to hide himself in the bathroom.
he armed himself with a table knife which he found lying on his
kitchen table, shortly before he went into the bathroom.
accused further told this court that he could hear the conversation
between his wife and that man. He learned and or heard from
conversation that actually his wife had asked the deceased to come
and see or visit her on that night.
common cause that the accused had not informed his wife that he would
come home for the weekend. Neither his wife nor the
deceased had an
idea that the accused would come home to his family on that fateful
It is the
conversation between the deceased and his wife which the accused says
provoked him. The accused made no attempt at all
to intervene between
his wife and that man. He waited until after that man had followed
his wife into their bedroom. He ultimately
stabbed the deceased from
behind on the back of his head, allegedly with that table knife. They
then both fell down. They started
to fight over the sword and the
lebetlela stick which the accused says fell from the deceased's
struggle over the said sword, the accused overcame the deceased as he
took possession of the sword. He then repeatedly assaulted
deceased with it. In his own words the accused told this court that
he so assaulted the deceased with that sword until when
that the deceased was tired and could no longer fight back.
at this juncture, pause to ask why the deceased who had no slightest
idea that the accused was at his home on that day would
go to see the
accused's wife already armed with a sword and a lebetlela stick?
court does not for a moment believe that the said sword was initially
in the hands of the deceased. I see no reason why the
arm himself ready to fight while he did not know nor did he expect
the accused to be at his home on that day.
that the deceased was hit at the back of his head clearly shows that
it was the accused who was armed with a sword with
which he hit the
deceased from behind. That explains why the deceased was so seriously
injured that he could no longer recover
from the said injuries. A
table knife could not cause the kind of injuries, which the deceased
is alleged to have sustained.
of the accused that he was armed with a table knife when he first
went after the deceased is false and has been fabricated
accused in realizing that he used a lethal weapon to inflict injuries
upon the deceased. It is therefore rejected as being
court holds the same above view about the fact that the deceased and
the accused had a struggle over the possession of the
question. This is highly unlikely in the light of the fact that the
deceased was assaulted from behind and he had no slightest
that the accused was there at his home.
that the accused escaped unhurt from that fight with the deceased,
who the accused described as having been very strong,
the deceased never had a chance to fight the accused back because the
deceased was completely taken by surprise by
the presence of the
common cause that when the accused ordered his wife to go and open
for that intruder who was knocking on his window, the accused
then aware that that person knocking on his window was a man.
that, but also that man had threatened to cause damage if the door
was not opened for him. Also it is a matter of common
cause that the
accused did not inquire from his wife who that person could be. He
only ordered his wife to go and open the door
for that man. This he
did even though he himself was frightened by that intruder. One
wonders why the accused did not himself go
to open the door for that
a very strange behaviour exhibited by a normal person of accused's
position who told this court that he cared for his wife
Did he, at that time not fear that that intruder would cause harm to
inference that this court can draw from this behaviour of the accused
is that he did so because he wanted to ambush the
said person, as he
indeed eventually ambushed him thereby causing that man his life.
possibility that the accused had set up a trap for his wife and the
deceased cannot be ruled out. The deceased did unfortunately
fatally fall into that trap. It has already been mentioned that the
accused assaulted the deceased on the head from the back
deceased never expected that to happen. The accused also went further
to repeatedly assault the deceased with a sword
on the head and this
says he did until when he realized that the deceased was tired and
could no longer fight back.
that the deceased fought the accused back is not probably true regard
being had to the fact that the accused has himself
told the court he
hit the deceased from behind and that at the time the deceased was
not at all aware that the accused was at his
home. The deceased was
taken by surprise when he was so assaulted from the back of his head.
story of the accused that he and the deceased ever fought is rejected
as being false and that in the circumstances of this
case it was not
possible for the deceased to have fought back the accused. It has
already been indicated that the accused did not
sustain any injuries
from that fight but that he (accused) had approached the deceased in
such a manner that he gave the deceased
no chance at all to even try
to ward-off the blows, which he delivered upon the deceased.
therefore not possible that the deceased ever posed any danger
against the accused in such a way that the accused had to defend
himself against the deceased. The defence raised by the accused of
self-defence is therefore excluded by the facts of this case.
no iota of evidence suggesting that the deceased did at any time when
he proceeded into the bedroom of the accused fought
or tried in
anyway to put in danger the life of the accused's wife. This is not
so even though the deceased has been described
to have been angry
that the wife of the accused took a long time before she opened the
door for him (deceased).
no suggestion that the deceased assaulted the accused's wife. The
defence of self-defence therefore falls off. What now
remains to be
addressed is the other defence of provocation.
been submitted on behalf of the accused that the accused was very
provoked by the actions of the deceased especially of coming
the accused's wife at odd hours of the night; moreso, when the
deceased said to accused's wife that he and her had an appointment
meet at the accused's home.
submitted that any reasonable man would be provoked by this,
especially because the accused was a man devoted to his family
he felt betrayed by his wife.
(accused) testified that he was so provoked by the deceased's conduct
that he was mad and acted during the
passion when he assaulted the deceased. He denied ever assaulting the
deceased any further after he had dragged the deceased
out of his
court has already indicated that four crown witnesses have testified
that indeed the accused assaulted the deceased further
on two more
occasions before the deceased was conveyed to hospital. Their
evidence corroborate each other's testimony. This court
has found no
reasons and none have been advanced as to why all the said crown
witnesses could falsely implicate the accused in
witnesses were called to the scene of the crime after the accused had
already seriously injured the deceased while accused
were in the accused's bedroom. The said crown witnesses did not see
that assault in the bedroom happen. They all told
the court that the
deceased had already been injured when they found him in the bedroom
of the accused. This has been admitted
by the defence.
however all testified that they saw further assaults by accused upon
the deceased when the deceased was already lying down
accused's veranda already injured and after the deceased had been
loaded into a wheelbarrow. All the said crown witnesses
this court to be telling the truth;
credible and they were not shaken in their evidence under
court has no reason not to belief their stories about what they saw
after they had arrived at the accused's home. The accused,
other hand was not a very reliable witness. The only reason why he
denies that he assaulted the deceased further and in
the presence of
the other crown witnesses is because the earlier assault upon the
deceased by him (accused) happened in the privacy
of his bedroom and
was not witnessed by anybody. He therefore falsely fabricated the
story that the deceased fought him back, was
armed with a sword and
stick and that the deceased was stronger than him (accused).
court has already indicated that the deceased was unaware of the
presence of the accused and so the accused who had waylaid
deceased, took the deceased by surprise and that explains why the
accused was able to hit the deceased from the back thereby
fatal head injuries upon the deceased. It is not true that the
deceased ever fought back the accused.
court has been referred to Section 3 of Proclamation 42 of l 959 -
Criminal Law Homicide - Amendment For purposes of this case,
court will address or refers to Section 3.1(b) of the said
provides as follows: -"A person who:-
the act which caused death in the heat of passion caused by sudden
provocation as hereinafter defined and before there is
time for his
passion to cool is guilty of culpable homicide.
relevance of this above-quoted subsection is that the accused has
raised a defence of provocation. In his own words, the accused
said that at the time when he assaulted the deceased who had gone to
his home to meet his wife at that late hour of the night,
he was so
furious and mad that he did whatever came to his mind at that time.
evidence of the accused has not really been challenged by the crown.
Indeed this court is also of the view that in the
this case, any reasonable man in the position of the accused could
have been provoked by the actions and utterances
of the deceased, who
had no justifiable reason in law at all to go to another man's house
at that time of the night.
deceased went even further to threaten to cause damage to the
accused's house and angrily reprimanded the accused's wife for
failure to open the door for him as he remained outside in the cold
for a long time. This he said was despite the fact that
it was the
accused's wife who had called him to her home that night.
no evidence that the accused had in anyway expected that an intruder
would arrive at his house at that time. There was
never any exchange
of words between his wife and himself, explaining the presence of the
deceased at the accused's home at that
time of the night.
accused's wife immediately ran away without explaining who the
deceased was and why he had gone to see her. The accused was
in a way
left in the dark as to why the deceased had gone to his home at that
late hour of the night. The accused's story that
he was frightened by
the threat of the deceased that he would cause damage to his property
unless he was allowed entry into that
house is reasonably possibly
true. The accused has a duty to protect not only his wife and
children, but also his own property.
that the accused elected not to go to the door to meet this stranger
who went to his home at such late hours of the
does not justify the presence and the behaviour of the deceased
towards one other persons property and family. There is no
that indeed the deceased had been called to the accused's home by his
wife, and that he and the accused's wife had an
appointment. In the
absence of such evidence, the accused's assumption that the deceased
was an intruder who had come to cause
damage to his property was, in
the circumstances of this case reasonable.
remains to be determined is whether or not the accused had the legal
intention to kill the deceased. The crown has submitted
that in the
circumstances of this case the accused was not acting in the heat of
provocation but he deliberately assaulted the
deceased to the point
of killing him. It is the crown's further argument that there was no
sufficient provocation in the circumstances
of this case to
reduce:the crime of murder to that of culpable homicide. The crown
has relied and cited the case of REGINA V MASAKALE
MPHOSI 1963 - 66
H.C.T.L.R 17 AT 19 D-E in support of its argument.
in the above cited case, there was a lapse of considerable time
between the quarrel of the accused and the deceased before
accused ultimately went back to stab the deceased with a knife three
times thereby fatally wounding the deceased.
now before this court is distinguishable from that of Mphosi. In the
instant case, there was never any conversation between
and the accused, neither did any time lapse before the alleged
provocation and the assault of the deceased by the
the accused acted in the heat of passion. It can not be inferred from
the facts of this case that the accused had the legal
kill the deceased. The killing of the deceased by the accused was
foregoing reasons, this court has come to the conclusion that the
accused has committed the crime of culpable homicide.
accordingly found guilty of culpable homicide.
submitted in mitigation on behalf of the accused that he is a young
man of 34 years of age who still has a future ahead of
him. That he
has no previous convictions and or is a first offender. That he is a
sole breadwinner of his own family and looks
after the children of
his elder brother who died shortly after the alleged incident against
the accused had occurred.
as a consequence of this incident, the accused lost his job in the
mines in the Republic of South Africa, thereby
financial as well as psychological stress to his detriment.
this court takes the above into account, it is to be never forgotten
that even the victim of the accused's actions, the deceased
his life permanently and that his family has forever been deprived of
the love, support and care of their loved father.
as it may, the court imposes a sentence of 6 (six) years
imprisonment. This will serve as a deterrent factor to other people
who easily resort to violence in settling whatever problems there may
be in one's life.
sentence also meets the justice of this case.
: Ms. Kanono
Defence : Mr. Mokoko
: Mr. Kolobe
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