CRI/T/3/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

TONA
MOHOLISA

JUDGMENT

Delivered
by the Honourable Mr Justice S.N. Peete on the 23rd June 2000

The
accused a mosotho adult appeared before this court on a charge of
murder it being alleged that on the 29th March 1998 and at or near
Maputsoe in the district of Leribe, he did unlawfully and
intentionally kill David Pheello Maseela. To this charge the accused
pleaded not guilty.

In
support of the charge, the crown called P.W.1 Tsae Moholisa, the
elder brother of accused who told the court that on the 28th March
1998 he had been drinking beer at the party and that he asked the
deceased to lend him a musical cassette so as to dub. On the
following day he went tot he home of the deceased where he found
Mangoetsi Malakoane who was employed as a maid by the deceased. He
says he asked Mangoetsi to borrow him the cassette so that he could
dub its music. Mangoetsi obliged and gave him the cassette; he then
left.

2

It
appears the deceased became annoyed when he got to know that P.W.1
had taken the said cassette; the deceased then looked for P.W. 1
until he found him at a shebeen. A quarrel ensued and P.W.1 tells the
court that the deceased, who was then in a angry mood hit him with a
fist in the face and took away his cassette. It also appears that
P.W.3 Mokoatle Mahase was also fisted by the deceased when he tried
to intervene.

P.W.3
when giving evidence told the court that on that day the deceased had
entered the shebeen and had angrily demanded his cassette from P.W.1
and had hit the latter and that when he tried to intervene, the
deceased had also hit him in the face and had chased him.

P.W.2
Mangoetsi Malakane's evidence shows that P.W.1 took the cassette in
the -absence of the deceased; This annoyed the deceased. P.W.2 then
told the court that after the deceased had retrieved his cassette
from P.W.1, he went back into the sitting room where his two visitors
from Maseru were seated.

She says
that soon thereafter she saw three men approaching the yard and one
of them, being the accused inquired where the deceased was. She says
the two men accompanying the accused carried sticks.

She says
that the deceased then appeared on the doorway and greeted them
saying "Brothers come inside". The accused then said "BX,
I don't like what you have done to my brother" and deceased said
"Come in, I am not fighting, though you look fighting."

3

She says
she then saw the deceased turning back into the house but was then
bleeding profusely; he held on to a stove and then fell down.
Screaming, she rushed to call the two visitors who rushed into the
kitchen to find the deceased bleeding profusely and lying on the
kitchen floor. She says she went to report the matter to the wife of
the deceased who was at work in one of the Maputsoe factories.

Under
cross examination by Mr Teele for the accused, she explained that
when the three men arrived, she was standing behind the deceased on
the kitchen doorway as she had just thrown some dirty dish water away
and was also in the way to the toilet. The arrival of the three men
stopped her in her tracks because she observed that they were in a
fighting mood and the two were carrying sticks. She agreed that the
accused carried no stick at that time. She was also taken to task by
Mr Teele about the version at the preparatory examination where she
is recorded as having said that the deceased told her that he had
assaulted P.W.I with fists over the cassette.

Though
she stood immediately behind the deceased P.W.2 seems not to have
seen the accused actually stabbing the deceased.

"Question:
You did not see the deceased being injured?

Answer:
I only saw when he turned and was bleeding.

Question: At the P.E. you said "accused then stabbed the
deceased with the knife?

Answer: I did not see the stabbing - at the P.E. I might have said I
saw him being stabbed."

4

She
denied categorically that the deceased ever attacked the accused with
fists but insisted that the deceased was all the time inviting the
accused and his companions to come inside. She says the accused would
be lying if he says he was attacked with fists by the deceased on
that day.

P.W.3
Mokoatle Mahase was a witness who was called last by the Crown
Counsel Ms Maqutu and his evidence changed the whole complexion of
the crown case and in brief his testimony went on like this: After he
had been assaulted by the deceased, he ran away to his wife's home
where he was staying. He found the accused and told him that the
deceased had assaulted P.W.I his elder brother over some cassette. He
says the accused, and his father- in- law then went to the home of
the deceased, and he also accompanied them; he was also carrying a
stick.

He says
they found the deceased already at his home. He says the deceased
appeared on the doorway and talked to the accused. He says he then
saw the deceased suddenly attacking the accused with fists and that
he saw when the accused took out a knife and stab the deceased in the
chest area. They then left the yard after the deceased had retreated
back into his house bleeding.

Mr Teele,
in all fairness, did not even cross examine P.W.3 because P.W.3 was
indeed totally favourable to the defence and Ms Maqutu should have
prudently made him available to the defence; his evidence rendered no
credit to but tarnished the crown case. The crown having closed its
case Mr Teele also elected to rest his case without calling the
accused.

5

In this
case the crown had the duty and onus to prove the charge of murder
beyond all reasonable doubt and upon the evidence adduced Ms Maqutu
candidly conceded that the crown had failed in this regard. The
stabbing of the deceased was however unlawful and unjustified. The
evidence of P.W.3 even if believed shows that the stabbing was an
excessive reaction on the part of the accused; his life was not in
danger and he used a lethal weapon inflicting a mortal wound on the
deceased. Though provoked by the incidents that had occurred that
morning he ought to have foreseen that death would result when he
stabbed the deceased with the okapi knife. Mr Teele also candidly
conceded that the accused exceeded the reasonable bounds of
self-defence.

In the
circumstances of this sad and tragic case, I find the accused guilty
of the crime of culpable homicide,and my assessors agree.

Ms Maqutu
informs the court that she has no record of the accused's previous
convictions.

Sentence:
The court finds that the stabbing of the deceased was unlawful and
unjustified. Having considered the mitigating factors raised by Mr
Teele, the court finds that the unlawful act of the accused has
caused the wife of the deceased to become a widow and her children
orphans. For this the wife of the deceased has all rights to claim
substantial compensation in a civil court

6

The
sentence of the court is the following:

Five
years imprisonment or M2,000 half of which is suspended for three
years on conditions that the accused is not convicted of an offence
involving violence to person for which he is sentenced to a term of
imprisonment of six months without an option of a fine.

S.N.PEETE

JUDGE

For
Grown: Ms Maqutu

For
Defence: Mr Teele