HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of March. 1989.
pleaded not guilty to a charge of murder wherein it was alleged that
on 1st March, 1988 he intentionally and unlawfully
killed his father
'Meselara Ntlhola at Ha Makhabane in the district of Mohale's Hoek.
preparatory examination depositions of P.W.2 Ntebele Ntlhola, P.W.3
Malehlohonolo Molai, P.W.7 detective trooper Mongali and
the post mortem report of the doctor who did not depose in the Court
below but had left the country for good
even before the P.E. was
conducted, were admitted by the defence and accepted by the Crown
admitted evidence was that one day in March he went to P.W.5
'Malebohang Lehloenya's cafe. He was asked by D.W.2 Sankana
to accompany him with P.W.5 to a spot where the dead body of deceased
was found. Deceased was full of blood. Only the following
P.W.2 able to see that deceased had sustained about seven wounds
whose locations he did not remember. The occurrences took
late dusk. It had been raining
throughout that day.
'Malehlohonolo 'Molai's testimony is to the effect that on 1st March
1988 accused came to her house and told her that he had
had a quarrel
with his father and urged P.W.3 to go and see.
proceeded to the scene and found deceased dead. As it was dark he was
able to see the blood on deceased's body by making use
of a torch
which lit up deceased whereupon the blood became visible on his body.
P.W.3 did not ask accused why he killed his father
because she was
frightened and upset. She did not see any wounds though.
member of the Royal Lesotho Mounted Police Force No. 4918 detective
Trooper Mongali's testimony at P.E. was to the effect
that in March
1988 he was stationed at Phamong Police Post in the Mohale's Hoek
district. On 1st March he received a report at
about 8.20 p.m.
whereupon he proceeded to Ha Makhabane the following morning. There
he found deceased's body. He found seven punched
wounds on the body.
These injuries which seemed to have been inflicted with a pointed
instrument consisted of
(i) a wound on the head;
(ii) one on the nose;
(ill) one on the chest;
(iv) one on the left abdomen;
(v) another on the left shoulder and
(vi) & (vii) two at the back.
found the exhibit 1 a spear which was displayed before Court. Though
witnesses referred to it as a spear this seemed to me
to be a dart
commonly used by herd boys for killing mice with by piercing them
with this type of instrument during the mice hunts.
It consists of a
reed of roughly five feetlength forming its shaft headed by a sharp
pointed piece of metal about six inches long.
It is on all accounts a
very lethal weapon the mere sight of which, curdles one's blood.
was not present at the scene where the dart was found but it was
P.W.7's testimony that accused had given the description
of where it
would be found.
mortem report showed that the body was examined eight days after
death had occurred. Death was due to cardiac arrest caused
internal exsanguination and cardiac tamponade and hoemotothorax after
an injury caused by a sharp long instrument.
external appearance revealed several small stab wounds on anterior
chest around the 2nd intercostal space on the right and behind
left shoulder around the dorsal chest. There was also a wound below
the left eye next to the nasal root.
'Malebohang Lehloenya testified that her home is separated from
deceased by a road running between the two. The estimated
between the two homes is that of about ten paces. She testified that
she and deceased are related because of the marriage
deceased's daughter and someone related to P.M.5.
she knew accused well. On 1st March 1988 at about dusk she was seated
outside her home doing some cooking there and also
She was in the company of her daughter P.W.4 'Mammatli 'Mamaqabe.
said she saw accused appear from his father's home. It was not dark
because there was moonlight although because it was cloudy
was shining through the thin layer of clouds. Accused headed for one
of the houses whereupon P.W.5 heard the sound as
if something was
being severely pounded with the result that each time it was pounded
it produced a sound suggesting it was breaking.
The sound come from
the direction of deceased's home where accused was last seen heading
towards before being obscured from view
by portions of the fixed
structures and buildings erected there.
P.W.5 sent for D.W.2. Meantime deceased emerged into view and
inquired who was there. Accused replied "it is me."
time accused was standing near a. fire
the forecourt of his father's homestead consisting of a hut and an
L-shaped flat-roofed house. Accused seized hold of deceased
him expertly;. threw him to the ground below the rise of the
forecourt. At this time P.W.5 says she was only five paces
deceased and his assailant.
then hurriedly made for the hut where P.W.6 his brother Pheello aged
18 years had already gone to bed. Accused shouted "Pheello
open". Accused went in and came back at deceased who inquired
"what's the matter," but was vouchsafed no reply.
Thereafter P.W.5 heard deceased ask accused "why do you stab
me." At the time deceased and accused were close to each
P.W.5 was not able to see what actions had aroused deceased's
inquiries to accused. Then deceased shouted for P.W.5 asking
come and indeed "behold a wonder of what my son is doing to me."
fell to the ground; tried to rise but fell again. She pleaded with
accused and asked him what his father could possibly have
At the time accused merely uttered rhetorical questions "what do
you say grandmother, what do you say grandmother?
Where is that
Sankana, he too should come so that I may finish him off like I am
finishing off with you."
was wearing a light shirt and a white pair of trousers. In the
circumstances he was clearly visible to P.W.5 who saw him
father around. Accused did not have any blanket on.
then said I am shooting you. Whereupon deceased said "finish up
my child for you have finished me already." Then
accused said as
they were standing close to each other "let me have a go at you
once more to finish you." They then parted.
running towards P.W.5's house but in trying to climb up the road
embarkment he fell never to rise again. P.W.5 got
a torch and lit up
deceased's face with it and saw that his eyes had turned and worn the
glazed gaze of death. Deceased
bleeding profusely from his nose, mouth and neck. The bizarre appears
around deceased's neck made P.W.5 think that the neck
had been cut;
whereas the blood from the chest had collected around the neck and on
congealing had formed a crusted embossment
around the neck.
come and kept watch over the dead body till the following morning
when police after inspecting the scene collected the
conveyed it to Mohale's Hoek mortuary.
being asked about Exhibit "2" the dart said she knew that
it was kept in the hut together with another one. She
said the hut is
the same one where he saw accused go hurriedly into only to come in
fury at deceased thereafter.
question put to P.W.5 that it was raining and dark that night she
said it had rained before deceased died. She admitted that
been bright before the death. She pointed out that though there were
clouds they were scattered.
adamant that she had witnessed the scuffle that went on between
deceased and accused.
referred to portions extracted from her statement in the P.E. record
showing that she couldn't have seen deceased run or
even fall because
she had testified in that court that she had heard her daughter P.M.4
relate to her these incidents presumably
as and when they took place.
She denied this.
adamant that she had been roasting maize outside. She repudiated the
suggestion that the condition of the weather would
not allow her to
be cooking and roasting maize outside her house. However the credible
evidence of P.W.4 corroborated by P.W.6
who said he had run to report
to P.W.5 about the fight shows that indeed P.W.4 and 5 were found by
P.W.6 around a fire outside
their house engaged in just the type of
occupation they had told the court about.
appear that the sound that alarmed P.W.5 was that made by big stones
which were used to pound at deceased's door resulting
in its breakage
and that of the window that P.W.6 told the court about. The policemen
also referred to these breakages and. also
to the stones found near
the door in question.
gave a somewhat clearer picture of events than her mother but like a
dull and unsophiscated member of her class she seemed
to labour to
come out with clear answers under cross examination. While she had
earlier stated that it wasn't because of her bravery
that she and
P.W.5 stayed on doing nothing when deceased is alleged to have been
asking accused repeatedly whether he was stabbing
and killing him,
but because the struggle didn't "seem strong at the time"
she became confused and started saying deceased
was not strong and
was in an obvious cleft stick to explain what she meant by this
latter version. However she was deftly steered
in re-examination by
Crown counsel to a more plausible path that it was because accused
hod naked that all those who usually came
to deceased's aid should
come in this occasion so that he could kill them too. It is this
utterance that made her step her mother
trying to rise from her seat
to go and intervene. Otherwise I find that P.W.5's evidence
corroborates that of her mother in material
the most plausible evidence is that of P.W.6 Pheello. He testified
that accused is his elder brother and deceased his father.
the evening in question accused came from his own house a good
distance away from his father's homestead. That he was sleeping
the hut. He heard accused go to deceased's house where the latter was
sleeping alone. Accused hit the door with force. P.W.6
was very angry and demanding of deceased that should open the door.
Deceased replied that he was already in bed. Then
accused came to
knock at the door of the hut inside where P.W.6 was. After being
asked to come in, accused stepped in, lit some
light and withdrew the
dart from the roof of the hut where it had been stuck aloft
thatching. Accused immediately retraced his steps and proceeded
outside growling the words "I had better kill you, now."
didn't know to whom these words were being referred. He rose and
dressed up and prepared to go and tell P.W.5 ell these events.
when P.W.6 got outside that he saw deceased run towards P.W.5's
house. He sew that deceased seemed to be fleeing from where
was. P.W.6 followed deceased, saw him try to climb to the top of the
road from the steep bottom of its side but fail and
fall to the
ground. P.W.6 found that deceased had died. P.W.6 said P.W.5 was at
her home but that she was one of those who came
to see deceased where
he had fallen.
no contradiction among these witnesses because the fact that P.W.6
says P.W.5 was at her home then does not detract from
that on seeing deceased fell she went to fetch a torch from her house
in order to come end light up deceased and
see the injuries with the
aid of torch light. Regard must also be had to the fact that the
distances between the respective homesteads
are very short. Taken
along with the fact that -deceased actually approached P.W.5's home
in a run, it is not far fetched to realise
that when P.W.5 saw
deceased pass her and fall the little delay that P.W.6 incurred
before coming out of the hut was enough to
enable P.W.5 to have
proceeded to her own house without being seen by P.W.6 who found her
there where she had gone to collect the
corroborates P.W.5 and 4 that accused was wearing a white pair of
trousers and a light shirt.
further told the court that accused had broken a window and two
doors. He said accused had been working in the wool-shearing
before this incident. Deceased too was occupied in this type of
engagement. The two had had a quarrel before. That is
P.W.6's mother's death which occurred in 1986. P.W.6 did not know
what the source of that quarrel was but his mother
had on that
cross examination P.W.6 said when proceeding to P.W.5's home he met
nobody. That he found P.W.5 cooking outside her home in
of P.W.4. The exchange of words between accused and deceased gave
P.W.6 the impression that they were quarrelling.
the day P.W.6 never saw deceased come from accused's home. In fact
accused only stopped living in the homestead of his father
a week or
so before the incident. He was adamant that accused had never been
expelled from deceased's house where he had been living
before the incident. He denied that accused was wearing a yellow pair
of trousers. He further testified that it is
not the case that he
dislikes accused more than ever before now that he killed his father
but that he is hurt for he now hasn't
anyone to help him. He said he
took some time dressing up before going outside because he did not
know who accused. Was threatening
to go and kill. P.W.6 testified
that he is illiterate and had never bean to school.
testified that he is 33 years old and is the eldest in his family.
Further that he never went to school. Notwithstanding
that it was
never put to P.W.6 that he was not telling the truth in saying he
never went to school accused said that of a family
of six siblings he
is the only one who never went to school.
proceeded to say he is married but that his wife left for the
Republic of South Africa after the quarrel she had with deceased.
wont to stay at his own home after he had had a quarrel with
deceased. Ho said they quarrelled over money which deceased
to say this is a completely new thing in these proceedings. Accused
told the court that on the day in question he had had
with deceased and others at P.W.5's cafe. Thereafter they went for
another bout of drinks
when he was in the company of very many people who were drinking and
making a noise in the house of Matlotlo that he heard
voice of someone saying "how come 'Meselara is taking goods from
his son's house yet ho has expelled him."
accused left in order to go and investigate at his house where he
found that the door which he had left locked by means of
was no longer locked and that his wallet was lying on the floor
emptied of the M45.00 and that M800.00 which he had kept
pillow case was missing including two of his blankets. He sold he
made these discoveries with D.W.2.
is accused's uncle and headman testified that he went with accused to
the letter's home after a complaint was made to
him by accused. He
found that nothing of what accused said gave any suspicion that the
place had been robbed.
as a matter of habit accused doesn't lock his house. He further said
when they got to accused's house accused never pointed
out to him
that the padlock had been picked and entry forced into that house. He
said accused never complained that his M800 went
missing from the
pillow case nor did he say his blankets were missing from the
bedding. In fact he said the bedding appeared to
be still intact.
money that he heard accused say went missing was about M50.00 but
D.W.2 dismissed this complaint from his own mind for
he was surprised
that anyone could keep that amount of money in an unlocked house.
Though he did not believe accused he suggested
that he should be
confronted with deceased the following day. He indicated that as a
chief he had heard deceased say that in a
wool-shearing business only
a very good worker would approximate M250 in three months. This
indeed would tend to belie accused's
claim that he earned M200 per
week in wool shearing
If fact D.W.2 said it would be impossible to give credit to any such
claim because he knew of an occasion when because
accused had no
money when arriving from that occupation he borrowed a sheep for
slaughter from P.W.5.
said accused was not drunk on the day in question and that he knows
him so well that he would tell if he is or is not drunk
for in any
case when he drinks he makes a good job of this habit leaving no
doubt that he has had some drink.
had testified that because he felt hurt when D.W.2 virtually did
nothing about his complaint about deceased's behaviour
he then went
to deceased to get that money by force. He said deceased admitted
having taken the money and kept it some place known
by accused too.
enough to spark the trouble that ended deceased's life. Accused said
he never thought that the dart used for killing mice
could kill a
man. Asked whether he had tried it on to himself to see if his
assessment of its lethal potential would hold he said
he never tried
it. When it was pointed to him that no man of his age and experience
could use this weapon on another and expect
it not to have lethal
consequences he readily conceded.
testified that even as he was piercing deceased with this weapon the
latter was saying nothing. Further that because it was
dark he could
not see where the dart was finding its mark.
was put to him that because he could not see his mark then the
conclusion should hold that he was piercing at random and
should not make virtue of necessity by claiming that he did not
pierce vital organs because it was by sheer accident that
them end that it makes no difference that he missed them as the
consequences are equally fatal accused was in an obvious
stick. I am in agreement with the Crown's submission that accused had
no lawful excuse for killing his father as the totality
evidence by crown witnesses is well corroborated on material respects
and as to events which occurred in the night in question.
never at all clear what the defence was, save that an attempt was
made to lay down a historical background leading to the
no direct evidence that accused was suddenly one extremely provoked
by deceased. None ever came to the surface that he
was acting in self
the precious time was wasted in the cross examination of P.W.5 &
4 because I fail to see what accused's manner of dress
achieve when he did not deny the act and; in any case his presence
and identity would serve cure the defect that his
yellow instead of white or vice versa.
that accused tried to put forth was categorically denied by not only
the Crown witnesses but his own witnesses. D.W.3
was led to the
completion of his evidence in chief before he suddenly remembered
that he had heard someone say property was being
taken from accused's
place by deceased.
after remembering this point which was the main thing for which
accused called him he was unsatisfactory in his answer to the
question whether he was the one who informed accused about it or
whether he had been informed by 'Manaha. Having said he himself
accused he turned round and said he had heard that 'Manaha had.
suspicion that deceased robbed his house was baseless because he
usually left his house unlocked clearly indicating he
could not have
had anything of value in it. D.W.3 was not able to support the
so-called discussion he was supposed to have had
unshaken in his testimony. Medical evidence
valuable as to providing a basis from which intention can be
gathered. The weapon is itself an obviously lethal kind of dart
on the mere look of it shows that it is capable of great penetration
into the body or flesh for it is sharp-pointed and tapers
sharp point to a smooth flushing with the handle that thus provides
no resistance to further penetration.
a subjective test to find if accused's attack was initiated by
provocation or self-defence or any of the known defences
in order to
help reduce the crime committed from murder to culpable homicide or
even less, the court finds accused's defence wanting
in all possible
forms of acceptable excuses or legal defences.
clear therefore that in using the weapon in a manner that accused did
he must have appreciated that it would cause death.
If he did not,
then in weilding it he must have done so without regard to the
consequences that the use of this weapon might bring
accused must have forseen that death might result. See S vs Mini
1963(3) SA. 188 at 192. The part of the body on which
savagelly inflicted is on the chest, face and back of the upper body.
accused had partaken of liquor it is clear from D.W.2's evidence and
that of accused himself that he was not so drunk as
distinguish right from wrong. His own witness says accused was sober.
Accused says he was angry.
I have no
doubt that the only fitting verdict is that accused is guilty of
murder as charged,
has been told that accused had pertaken of liquor that day. Although
it is not easy to say how much was taken it cannot
be denied that he
in fact had taken it with the usual consequences that liquor has on
the consumer's mind.
been asked to consider that judging from the time accused spent at
Matlotlo's house drinking from 1 p.m. to sunset he must
considerable amount of liquor.
I am told
that rightly or wrongly accused believed that deceased had broken
into his house. The Court is asked to consider what
felt especially as testified by D.W.2 that when they parted accused
said his heart was sore. The fact that accused
was hurt is bespoken
by his setting out for D.W.2's to lodge a complaint. The Court should
judge accused's moral conduct against
the background of his
illiteracy and the fact that there is an element of disharmony that
existed between him and his father.
heard the above and having considered that killing one's father is
one of the worst types of crime, especially in circumstances
reveal not even the remotest
excuse I reluctantly find that extenuating circumstance exist. Having
heard addresses in mitigation and considered that
absence of previous
convictions cannot mitigate the heinous nature of this offence I
imposed seventeen years imprisonment.
: Mr. Thetsane
Defence : Mr. Moorosi.
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