HIGH COURT OF LESOTHO
by the Hon. Acting Mr. Justice M. Lehohla on the 2nd September, 1988.
accused in this case is charged with the unlawful and intentional
killing of one Busumane Mokone. The killing is alleged to
occurred on 26th November 1986. Accused pleaded not guilty.
of the accused his counsel Mr. Pitso admitted the depositions of
P.W.1, Makoatle Moiloa, P.W.6 Detective Trooper Nchai,
Detective Trooper Letsoepa at preparatory examination that was held
at Mokhotlong. A copy of post mortem report EX."A"
handed, in also by consent.
Ganuash who prepared EX."A" gave findings as to external
appearance as follows : Three wounds on the body consisting
wound on left sternal edge.
wound on lower left chest measuring 5 cm. in length.
penetrating wound to the left of lower stomach region resulting in
the protrusion of small intestines.
laceration of left ventricle optical region was observed in relation
to the items reflected on the schedule of observation as
and heart. Another laceration was observed on the left lung. Massive
faecal matter was observed in the peritonium (body
spleen was ruptured as well as the small intestines.
Qetelo Matata testified that he knows accused as well as the deceased
because they lived together in the same village.
used to stay in the houses of this witness at Motsitseng Mokhotlong.
He further testified that these houses previously
belonged to one
Petlella from whom P.W.2 bought them.
purpose of buying these houses was that P.W.2's Junior wife should
occupy them. But when the junior wife deserted him and went
in Natal they were occupied by deceased and his wife. Deceased
renovated them and stayed in them for over ten years. In
said when his junior wife deserted him he no longer wanted these
P.W.2 bought these houses from Petlella he testified there was a
kraal which he said he knew nothing about.
in November 1986 accused came to P.W.2 one afternoon to report that
deceased was dismantling the kraal; and asked this witness
upon deceased to desist from doing so for accused had in fact lodged
a case which would be attended the following day.
P.W.2, P.W.1 Moiloa and accused went towards deceased's place but
Moilea remained at his house while the other two i.e.
P.W.2 went ahead and found deceased sitting alone outside his home.
deceased's relative called Koebela Mokone and his wife were inside
went past and stood between the two kraals. It is common cause that
these kraals are divided by an adjoining wall through
which there is
entrance leading from the only kraal which has external exit.
significance of these kraals in these proceedings is to provide a
background to the fact that the kraal without external entrance
used by the deceased to keep his horse there while the one with
external exit was used by accused to keep his cattle and calves.
of the differences between deceased and accused it appears the former
decided to create an exit on the wall of the kraal
where he used to
keep his horse. However the question of the ownership of these kraals
is not a subject matter for resolution in
these proceedings save that
their existence provide a background to events that led to the
death of deceased.Suffice
it to say deceased regarded the kraal
as his while accused on the other hand maintained it belonged to his
witness P.W.4 Mokone said on the day in question he was at deceased's
home in the company of his mother P.W.5 Makoebela
when he saw P.W.2
coming and speaking with deceased about a kraal. P.W.2 asked whose
the kraal was and deceased said it was his
while accused said it was
his own father's.
drove a horse into it. Apparently P.W.2 having transmitted P.W.1's
message to deceased to refrain from touching the kraal
that this was the end of his mission and thus feeling disinclined to
get involved in the apparent fight that was obviously
However he had occasion to warn both accused and deceased to stop
being boyish when the two had retreated into their
and shortly emerged each armed with a stick.
testified that when deceased brought his horse into this kraal
accused ordered a herdboy to drive cattle into it; Deceased
them out. Accused had apparently joined in the driving of cattle into
the kraal without external exit. The fat was immediately
in the fire!
Deceased hit accused with a cane stick.. P.W.4 is not certain where
the blow landed but he observed that it was aimed
at accused. It is
common cause that deceased struck accused with a cane stick.
testified that he hurried to the scene to intervene but found accused
already stabbing deceased with a knife. When P.W.4 reached
accused had Just scaled the kraal wall and run still with his
unclasped knife in one hand.
witness attended to the deceased and sought help of P.W.3 and 5 to
help carry deceased into the house where he soon died.
no doubt that ill blood existed between deceased and accused. Yet the
court is called upon to determine on the facts adduced
the innocence or otherwise of the accused with regard to deceased's
evidence has been adduced to show that deceased was a weakling
with a swollen foot or leg usually hobbling along on
his cane stick
with a limp.
Mokhobo for the crown submitted that actus reus has not been denied
in these proceedings but what remains to be determined is
defence of self defence avails accused at all. He submitted that
accused was averting a lawful attack. However Mr.
Pitso for the
defence pointed out that courts of law exist solely for, the purpose
of resolving disputes among people. There is
merit in this
But it is
a well known principle of law no doubt
on good sense that a swipe with a fly swatter cannot justify a
response with a sledge hammer. Indeed the initial attack
accused on deceased warranted accused's counter-attack. It was
important though that means used in the endeavour should
sufficient to ward off the apprehended danger.
Mokhobo submitted that deceased could not have been in a position to
strike a fatal blow on the accused. I did take the cane
stick to feel
how heavy the bigger remaining part of it was. It felt quite light.
Although the crown maintained accused was attacked
by a man who could
not run, relying on evidence before court Mr. Pitso submitted that
deceased's weakness should not be over inflated
for he was seen
walking into his house to take a stick yet the crown had sought to
show he could go nowhere without the aid of
the other hand accused conceded that he could see when deceased
approached that he was in a violent mood and would have averted
encounter by running away. The crown submitted accused had ample time
to run away but did not.
in his own words testified that in a man to man fight he could have
given deceased one blow with a fist and sent him rolling
because deceased was weak and of very spare frame.
thus submitted there was no need to stab the deceased.
feature that is striking about the nature and location of the wounds
is that the wounds tend to give a lie to accused's story
that he was
inflicting them at random. There is marked consistency of the side of
the body that sustained injuries namely the left.
consistency of the particular place on deceased body that suffered
two injuries namely the region of the breast opposite
the heart and
left lung. These factors seem to favour deliberateness in the aim
taken to inflict
a particular spot which happens to be a vital part of the body.
was hard put to it to show how the attack continued being maintained
by deceased against him even when the first two blows
inflicted. It is incredible that the force of the attack by deceased
could not have been diminished by the first stab
incredible still after the second.
consequently came to the conclusion that accused exceeded the bounds
of self-defence. Hence he is guilty of murder.
circumstances were shown to exist the effect of which was to spare
accused from the extreme penalty.
mitigation the following points were raised:-
in which he lives has to be taken into account.
reported himself to the nearest police station.. Accused has no
Accused: He has no previous convictions.
He is married man.He has kids, wife and old mother. Between 13 and a
Finally he is not a man of education. He is about 30.
Sentence : Sentenced to 8 years' imprisonment,
Crown : Mr. Mokhobo
Defence: Mr. Pitso.
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