HIGH COURT OF LESOTHO
matter of :
R E X
by the Hon. Mr. Justice M.L. Lehohla on the 6th day of March. 1989.
oral evidence that the Court heard in this trial is that of P.W.2
Tlale Sokamisa. The rest of the evidence was admitted
in the form of
witnesses' depositions led at preparatory examination. These
depositions were read into the recording machine and
thus made part
of the record in the instant proceedings.
of this evidence is to the effect that there was beer drinking at the
home of Nkolenyane in January 1987. The merry-making
went on until
well after twelve midnight, when accused had a quarrel with one
'Malimakatso. With the aid of some of the merrymakers
intervened the quarrel was brought to an end.
however took a new turn when accused was heard asking deceased why he
hit him. P.W.1 Leohesa, who according to accused was
only two paces
away from him, testified at P.E. that he did not see deceased
assaulting accused. In fact P.W.1 took accused outside
while deceased was left inside. Deceased came following. P.W.1 saw
accused hit deceased twice with a stick. The stick
got broken where
tripod and hit deceased with it. P.W.1's attempts at intervening were
foiled by accused who overpowered him.
belaboured deceased and afterwards left the place. An alarm had been
raised and many people came to the scene. These are
people whom P.W.1
met while he was following accused who had just decamped. P.W.1 then
returned with the vast concourse of people
who had responded to the
alarm by heading for the scene of the incident.
found deceased already dead. It is in respect of this death that
accused Thabo Moorosi today stands charged with unlawful and
intentional killing of the deceased Tseko Lebetsa. The death is said
to have occurred on 10th January 1987. Accused pleaded not
Tlala Sokamisa who gave evidence before this Court supports P.W.1's
evidence but it is strange that while he came to the scene
response to an alarm he had received from a small boy Tolo or Poli
Lebetsa his perception of events differs from that of P.W.1.
said when he came he found accused outside the house seated and
holding a stick and a stone. He saw these objects because
bright moonlight and in any event he came close to where accused was
seated. P.W.2 went past and got into the house where
deceased sitting on a chair in the company of others including one
Maletuka. P.W.2 asked him what the matter was but deceased
did not know.
deceased tried to go out but was prevented by this witness from doing
so. P.W.2 went outside and tried to grab hold of accused
intention of dragging him from the scene but accused defied all such
attempts. Shortly before this accused had asked P.W.2
to light him up
and P.W.2 did so by striking a match whereupon he noticed a small
scratch on accused's forehead.
Maletuka came out and posed certain questions concerning Lechesa.
was about to go out when he was struck with a stone by accused in
consequence of which deceased stopped in his tracks and
fell with his
face landing on the door-step. it is strange that P.W.1 made no
mention of this aspect of the matter yet he was so
with the events in which he participated so prominently by taking
accused outside the house.
it is P.W.2's testimony that accused then rushed at deceased and
belaboured him with the stick he was holding.
evidence shows that death was caused by damage to the brain. In the
doctor's opinion deceased was hit with a sharp instrument
like an axe
or a sword. P.W.2 explained to the court the tripod he saw in the
scene of the incident. He described it as a three-logged
made of pieces of iron droppers used in constructing fences. It is
common knowledge that tripods are used for supporting
I have no
doubt that the edges of these fencing droppers can inflict injuries
which are indistinct from those caused by the instruments
suspected were used in the assault.
medical report furnished me with the information that the akin
covering the skull was cut by a sharp object and that 5 cm long
were seen underneath the scalp. The skull was pierced resuling in
several deep holes in the brain. There were multiple fractures
skull and the brain was subsequently damaged in several parts.
submitted that the posture of events revealed by the evidence should
lead the Court to no other conclusion than that accused
the injuries referred to above had the requisite intent to murder the
deceased. Further that even though he
that causing these injuries might result in deceased's death he
nonetheless was reckless as to whether death resulted
or not. Mr.
Moorosi countered by submitting that regard being had to the beer
accused had taken it cannot be said he had the requisite
the appreciation of consequences of his act. I am persuaded in favour
of the view that drunkenness cannot in the circumstances
of this case
be accepted as a defence.
regrettable that none of the weapons used in assaulting deceased were
produced in Court.
story was a pitiable tissue of lies. I put no reliance on it. He
denies the crucial point that he was seen inflicting
with a stick, a atone and a tripod on the deceased. He suggests that
the injuries found on the deceased's body could
be accounted for by
people who either remained on or came to the scene after he left for
the chief's place.
unable to accept the suggestion that accused had been provoked by the
fact that he was made to walk in the rain carrying a
kitchen rack or
unit by deceased. The fact that he got wet when the rack tilted and
thus emptying on him rain water which had collected
compartments cannot justify his brutal attack on the deceased.
Accused behaved in a despicable manner towards almost everybody
whom he came into contact that day.
without doubt that in line with S. vs. Mini 1963(3) SA.188 at 192.
"....... A person in law intends to kill if he deliberately does
an act which he in fact appreciates might result in the death
another and he acts recklesssly as to whether death results or not,"
is guilty of murder as charged.
accused is found guilty of murder founded on the type of intent
commonly known as dolus eventualis, coupled with the facts revealed
in evidence that there was intake of liquor, I am persuaded to the
view that extenuating circumstances do exist in this case. These
factors that the Court takes into account relating to the moral
blameworthiness of the accused person. The beneficial effect
is to save accused's neck from the ultimate penalty.
Sentenced to 6½ years' imprisonment.
: Mr. Thetsane
Defence : Mr. Moorosi.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law