CRI/T/ 53 /99

IN
THE HIGH COURT OF LESOTHO

HELD
AT BUTHA-BUTHE

In
the Matter of:-

R

V

LEKEBA

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 14^th
July 2008

This is a case of
murder wherein the accused was charged with the unlawful and
intentional killing of one Matoloane Mokete on or
about the 27^th
day of December 1997.

At the start of
the case, the Crown informed the Court that only accused No. 1 was
present whereupon they applied for a separation
of trials. The
application was duly granted and the Court proceeded with the case
against him only.

After he was read
his charge the accused pleaded not guilty and the defence admitted
all the evidence contained in the depositions
of the Crown witnesses
that had testified at the preparatory examination.

A brief summary of
the facts in terms of the admitted evidence is that on the day in
question the deceased was assaulted by a group
of people for having
allegedly broken into the house of Accused No.1’s uncle and
stealing some property. It is common
cause that none of the
witnesses saw the actual assault except for one who deposed that at
the time he arrived at the scene, he
saw accused No.8 whipping the
deceased and that the latter was already injured at that time.

I might also
mention at this stage that none of the Crown witnesses testified that
they saw accused No.1 herein partake in the assault
of the deceased
although one did mention having seen him with some of the co-accused
at the scene after the incident. It is also
common cause that the
said assault resulted in the death of the deceased. The post-mortem
report showed that death was due to
a head injury.

At the close of
the crown case the defence put the accused to the stand. Per his
testimony the accused was attending a feast in
the village on that
day when he received a report from the daughter of one of his
erstwhile co-accused whereupon he proceeded to
the latter’s
house. Upon arrival thereat, he found the deceased outside the house
bending over a tape recorder, three pairs
of pants and a blanket. He
greeted him and asked him what he was doing and instead of replying,
the deceased rose and hit him
with an iron rod on the hand whereupon
the latter’s own stick fell down.

He bent to pick up
the stick but was hit for the second time on the chest by the
deceased. It is at that time that the other accused
persons arrived
and intervened by belabouring the deceased with sticks. It is not
denied that the injuries sustained by the accused
during this
incident were also reported to and observed by the police who carried
out investigations in this matter and to whom
the sticks and iron-rod
were handed.

I now proceed to
consider the issue whether at the end of the entire case the Crown
has successfully discharged its onus of proving
its case beyond a
reasonable doubt.

That he who
alleges must prove is trite. On the basis of the evidence that was
placed before this Court, I am satisfied beyond
doubt that the Crown
has not successfully discharged this onus in that there is no iota of
evidence that linked and or implicated
the accused in the alleged
assault. It cannot even be correctly argued that the doctrine of
common purpose should apply in this
case in that all its basic
elements have not been established.

Without further
ado, I find the accused not guilty and accordingly discharge him.
Accused is free to go home.

My assessors agree
with me on this finding.

N.
MAJARA

JUDGE

For
the Crown : Ms Motinyane

For
the Defence : Mr. Thulo