CRI/T/183/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

vs

MONAMATHA
MONYETSANE

RULING -
SECTION 175(3) OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT

The
accused is charged with murder it being alleged that on or about the
11th September 2004 at or near Ha Ramatseliso in the district
of
Maseru he unlawfully and intentionally killed one Lelingoana Lekau
(the deceased).

The crown
led the evidence of two witnesses who were in the company of both
accused and the deceased on the fateful day they were
also in the
vicinity of the scene although they can hardly be

called
eye-witnesses. The rest of the evidence was formal really, being that
of the policeman who arrested the accused and gave
him the charge. He
never found the murder weapon. There was also the evidence of the
witness who identified the deceased to the
doctor who performed the
post-mortem. The post-mortem report was handed by consent and it
indicated simply that in the opinion
of the doctor death was due to
''chest stab wound". I must observe at once here that such
observations by medical persons
are most unhelpful and leave the
impression that there was no proper autopsy carried out. One does not
need to be a medical doctor
to observe a chest wound and having heard
that a person had been stabbed he died from a such medical people
have to tell us much
more than that about the cause of a person's
death.

Be that
as it may. After this the crown closed its case. The defence then
applied for the discharge of the accused in terms of section
175(3)
of the Criminal Procedure and Evidence Act NO.9 ofl981.

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The
evidence of the two witnesses who testified before us may be
summarized as follows. Oh the 11th of September 2004 both witnesses,

the deceased, the accused and a number of other people were at a
feast at the place of one Lerata in the village of Ha Ts'upane.
After
the festivities the party left in a vehicle driven by PW1, Leboli
Mantso. In the vehicle were the deceased, PW2 Mazakia Makhanya,

Nkhetheleng Mohale and Tebello Monyetsane. The party proceeded as far
as a place called Ha Ramats'eliso where PW1 alighted and
asked the
deceased to take over the driving of the vehicle. He and his wife
proceeded in the direction of their home. On his way
on looking back
he noticed that the vehicle had not moved. This put him on inquiry
and he retraced his steps. On approaching where
the vehicle was, he
realized that there was a serious altercation between the deceased
and the accused. On investigation he found
that Tebello was
restraining the deceased on the one hand and Nkhetheleng was
restraining the accused on the other. Both were getting
at each

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other.
The witness does not appear to have established from the altercation
the real source of trouble between deceased and the
accused.
Nevertheless he testifies that accused left of his own volition in
the company of Nkhetheleng and they were seen to be
standing quiet
some distance away. He goes on to say that the deceased whom they
were apparently still restraining asked to be
let go so that he
should go to the vehicle. On that understanding they let him go.
Instead of proceeding to where the vehicle was
he proceeded to where
the accused and Nkhetheleng were. He had been seen carrying a screw
driver as he did so.

Tebello
and PW1 decided to follow the deceased. On their way they met him
coming back. He said the accused had stabbed him with
a knife and had
finished him. He proceeded to his vehicle where he collapsed. He does
not appear to have ever reached hospital.

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PW1
emphasizes that the place where the deceased went to the accused and
Nkhetheleng was so far that he could not see what happened
there. It
was put on behalf of the accused that the deceased was the aggressor
and that he (accused) produced a knife in an attempt
to frighten him
off. The witness said he did not know, as it was too far and dark. In
short he saw nothing of what happened at
the actual scene of the
stabbing.

The story
of PW2 is essentially the same although they differ in immaterial
detail. She knows there was a quarrel over whether the
accused should
be transported first to Motsekuoa before deceased went home and
deceased said there was not enough petrol. The other
events she did
not see although she appears not to have been too far from where they
happened according to her. She says it was
dark and that at night her
eyes are particularly bad. The long and short of it is that she did
not see what transpired at the scene
and so she could not comment on
the case put forward for the accused.

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That in
sum is the evidence before us.

The test
in an application of this nature is trite and it is whether on the
evidence placed before it a reasonable court might convict
(R v BLOM
1939 AD 188).

In
motivating the application much was said about whether this court
must go into the question of credibility of witnesses or not
at this
stage. I was referred in this regard to the well known South African
and Lesotho authorities on this subject (S V MPHETHA
AND OTHERS
1983(4) SA 262; R v. DLADLA & OTHERS 1961 (3) SA 921. R v
RAMOKATSANA 1978 (1) LLR 70; R v. DANIEL LEHLOENYA AND
OTHERS
CRI/T/35/79) It is of course established that questions of
credibility play a very limited role in applications of this
nature
and courts may take them into account where witness are patently
unworthy of any credibility for instance.

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Fortunately
in this case the question of credibility does not come into play. The
deceased was most probably killed by the stab
wound from the. accused
who does not appear to deny that. Crown witness have testified that
they do not know the exact circumstances
under which he was stabbed -
they did not see the stabbing at all. The accused has put to the
crown his side of the story which
amounts to self defence. And a
court is entitled to take that into account in an application of this
nature. In fact crown counsel
seems to be of a similar view when he
says in his heads of argument the "evidence against accused
should not be considered
in isolation" Counsel for the applicant
points this out in his heads of argument that this is a portion where
the evidence
of the accused has gone unchallenged as in this case. He
refers us in this regard to the cases of R v THUSO GREEN & OTHERS
CRI/T/21/89 at 29; MOLEFE MOHOSHO v R C of A N0.6 of 1990). In the
instant case I would go further and say it is doubly so when
the
evidence of the crown tends to support the story of accused. It was

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to the
effect that the deceased was aggressive; he broke out of the
restraints of PW1 and Tebello and proceeded to where the accused
had
removed himself from the scene of the earlier altercation. He was
armed with a screw, driver.

I do not
think that a reasonable court might convict on this type of evidence.
The application is granted and I discharge the accused.

T.
NOMNGCONGO

JUDGE
23rd MAY 2007

For
Crown: Mr. P. Sealiete

For
Defence: Mr Maieane

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