HIGH COURT OF LESOTHO
matter of :
J U D G M
E N T
by the Hon. Mr. Justice M.L. Lehohla on the 16th day of August, 1990.
accused pleaded not guilty to a charge of the unlawful and
intentional killing of one 'Malibakiso Maoela who died on 25th
1988 at Matsaneng in the district of Mafeteng.
refused an application to admit in terms of section 223(7) of the
Criminal Procedure and Evidence Act 9 of 1981 the post
of the doctor who examined the deceased. The reason for the refusal
was that grave doubts surrounded the question
whether the body
examined was of the deceased in the instant case in view of the fact
that P.W.5 Kuse Maoela whose names appear
in the doctor's report
man who identified the deceased before him denied both at P.E. and in
this Court that he ever identified the deceased's body
to any doctor
around the time of its examination.
the crown recalled P.W.3 a 14 year old daughter of the deceased who
testified that before her mother's death which
occurred on the same
day that she was stabbed by the accused she was in good health. P.W.2
Daniel Rasebonang had testified before
P.W.3 did that police who came
to collect the deceased who was still alive but only barely so then
had taken some thirty minutes
to arrive at the scene. The deceased
was taken to the hospital in Mokone's vehicle. On account of the
nearness of the hospital
to the scene the deceased could not have
taken more than twenty minutes to reach the hospital where she was
certified dead a short
while after arrival and examination. It should
then be clear that the deceased did not survive more than an hour
after being stabbed.
cross examination following her recall P.W.3 testified that it was
correct that her mother during a period in excess of one
had her leg in plaster of Paris cast due to an injury sustained when
she fell into a donga when she slipped.
clarification in response to a question posed by the gentleman
assessor on my left P.W.3 stated that the fall could have
either in February or March 1988 while the stabbing occurred in
November of that year.
submissions made at the closing addresses Mr. Pitso for the defence
held P.W.3's evidence in doubt because he contended P.W.3
her mother had sustained an injury a month before the killing whereas
later her answer tended to indicate that the injury
had occurred some
8 to 9 months before.
context in which P.W.3 was asked under cross-examination entails
neither a contradiction necessarily nor
attempt to fabricate. It went as follows:-
"Is it not true that for some month or so before her death the
deceased had fallen into a donga and plaster of Paris had to
It is true."
answer was "it is not true" in response to the
the question that suggested that the injury had occurred only a month
before the stabbing then the essence of the question
that she had
sustained an injury to her leg before the stabbing would have falsely
been denied and needlessly lost. Thus it required
that the gentleman assessor elicited from the witness.
event P.W.3's reply that when she died the deceased's leg was no
longer in plaster of Paris cast satisfies me that she was
good state of health. Moreover the deceased who was quite close to
her daughter and usually revealed to her what ailments
she had did
not complain of any around the period immediately surrounding or
preceding her death. I take it therefore that no other
cause than the one attested to by the eye witnesses is accountable
for the deceased's death.
state of events therefore the submission that the cause of death has
not been established is rejected.
generally it is not unknown in criminal cases that even where the
dead body has disappeared as in the case where it was
overboard at sea and thus precluding possibility by medical evidence
to establish the cause of death the culprit has been
court, tried and where appropriate convicted.
should serve as a pointer that even although medical evidence is
helpful or even necessary for purposes of establishing the
death, its absence cannot per se render a criminal trial foredoomed
because as rightly pointed out by Mr. Mokhobo for
the crown there is
view that even though there is no medical evidence as to the cause of
death that does not preclude the court from convicting
person of a homicide.
Police Woman Motsamai who attended the scene of crime immediately on
receiving a report regarding the assault on the deceased
that on her examination of the deceased she saw blood coming from a
wound situated on the left side of the deceased's
Detective Trooper Mpholo identified EX."1" as the knife
that the accused handed to him on 26-11-88 when the latter
report himself to P.W,1 at the Police Station.
Kuse Maoela the accused's father testified that he is the one who
undertook to send the accused to the police station as the
was absent when the police came to P.W.5's place looking for the
accused who was living there.
other eye witness besides P.W.3 who testified to these events is
P.W.2 Daniel Rasebonang.
the court that on that fateful day he had occasion to go to a
restaurant surviving under the commercial name Eighty-Eight.
drinking "Long Tom-of Lion Lager and had just downed a sixth can
of the same stuff and was about ready to leave after
buying a case of
these "Long Tom' when a young man came to him. He did not know
this young man. The young man called him by
was surprised by the familiarity that the young man showed to him
asked if the young man knew him. This young man was
the accused who
in response said yes. The accused further told P.W.2 that he knew
P.W.2's children and explained that he stayed
at Maoela's house which
is next door to P.W.2's.
then asked the accused to help him carry the case of "Long Toms"
to P.W.2's home. The accused agreed.
way the two met a woman whom P.W.2 later knew as the deceased.
heard the deceased say to the accused that the accused is silly. The
accused put the case down and aggressively made for the
This event was later demonstrated before the court which recorded it
"Demonstration; a quick but gentle dropping of the box on the
ground followed by a brisk walk towards the (imagined) deceased."
stated that the deceased had by then had her back towards the accused
some 7 paces away. P.W.2 admonished the accused against
the act as he
feared that from the manner of his approach towards the deceased the
accused was going to attack her. The accused
heeded the admonition,
turned back picked up the case and proceeded with P.W.2 to the
arrival the accused asked P.W.2 for the brand of cigarettes called 20
Peter Stuyvesant. P.W.2 sent a child to buy him some.
then told the accused that he was going to Lelimo's cafe. The accused
said he was going with him. When P.W.2 got inside the
accused had lagged some 15 paces behind him. Then P.W.2 heard a noise
outside. When P.W.2 marched outside to indulge his
curiosity he saw
the accused chasing after the deceased. P.W.2 came after the accused
and reprimanded him. The accused came back.
proceeded to Albert's cafe which is 50 paces away from Mokone
Lelimo's cafe. P.W.2 was following the deceased who had run
Albert's cafe. It is at this cafe that P.W.2 found the deceased
fallen and bleeding. He tried to help stop the bleeding
unable to locate the wound from which the blood was spouting.
testified that as he was seeing the accused for the
time on that day he would not tell if he was drunk.
accused never drank in his presence.
cross-examination P.W.2 was told that the deceased met him and the
accused on their way to Mokone's cafe from P.W.2's home and
their way from Eighty-Eight restaurant to P.W.2's home. Further that
when he went towards the deceased the accused was not
aggressive mood. P.W.2 denied these assertions and buttressed his
observation of the latter event by pointing out that he
the accused back and the accused complied. The accused does not deny
that he heeded P.W.2's call to desist from approaching
testified that he was ignorant of the state of
between the accused and the deceased for he was seeing them for the
first time that day. He did not know until subsequently
were even aunt and
that apart from saying the accused was silly the deceased further
swore at the accused by the latter's parents' private
parts. He said
he would have heard if why such utterances had been made by the
laker indicated by the accused the relative positions the three of
them were bearing towards each other make it impossible
that P.W.2 could not have heard words uttered by the deceased apart
from the fact that she said the accused was silly.
The accused showed
that he and P.W.2 were walking a breast of each other with P.W.2 just
a foot apart when the deceased who was
8 paces away uttered whatever
words she did.
denied that because of drink he might have forgotten that the
deceased had sworn at the accused by his parents' private parts.
branded as a lie the suggestion that he invited the accused to go
with him to Mokone's cafe.
described as unfounded the suggestion that the accused was going to
beg for pardon from the deceased when
approached her for the aggressive manner created no basis for any
what basis he could have gone hack for the pardon of someone he had
not wronged the accused said the deceased was aggrieved
because he had not greeted
accused did not say at what stage the deceased is alleged to have
said he did not greet her. But if he contends that it was
was in P.W.2's company this version was never put to P.W.2. It stands
to reason therefore that the conclusion may
not be faulted that
the version was never put because it was a fabrication.
conceded that as he was indoors he did not see the source of the
second encounter between the accused and the deceased. He
denied that the accused did not chase the deceased.
put to P.W.2 that it was the deceased who attacked the accused. In
reply P.W.2 said when he appeared it was when the accused
aged 14 stated that she attends school and is doing standard 6
day in question she and her mother were just. arriving from Mafeteng
when the accused approached them while they were next
accused touched the deceased on the chest and the deceased warned him
not to. The accused left her and went away.
afterwards went to Mokone's cafe leaving her mother sitting next to a
dam 50 yards away from Mokone's cafe.
found the accused at the cafe in the company of P.W.2 whom she did
not know. There was no shopkeeper in the cafe.
P.W.3 was in the cafe the accused said to her "you, I want to
kill your mother."
P.W.3 proceeded to go outside intending, in report the accused's
threats to her mother. But she met her mother at the
door and the
mother asked P.W.3 why she was was waiting there. P.W.3 told her that
the shopkeeper was not in. It was at this stage
but just outside The
door some 6 paces away that P.W.3 told her mother about the accused's
accused came following after the deceased after she asked him why he
said he was going to kill her.
the accused thrust his hands into his pocket whereupon the deceased
asked "what are you doing Paki."
accused drew a knife tore at the deceased'n dress with it and the
deceased said "sorry sorry brother" and tried to
accused said I want to kill you. Saying these words the accused
followed the deceased and stabbed her. The deceased ran to Albert's
cafe at the door of which she fell and much blood flowed from her
not know what became of the accused. P.W.3 identified Ex."1"
as the knife used by the accused to slab the deceased.
is a knife with a white handle. Its blade is very very sharp and has
a mean looking thin sharp point. The entire
blade is about four
denied that this knife was wrested from the deceased's grasp by the
accused during the fight when the accused was being attacked
denied the allegation that the accused did not say he wanted to kill
the deceased. She however said even though the threats
uttered in an angry mood they frightened her because of the manner in
which the accused had just
couched her mother's chest.
the accused was about a foot away from the deceased when he drew the
knife. However P.W.3 did not notice the stage at which
the knife was
somewhat strange that P.W.2 in whose presence the threatening words
were allegedly uttered made no reference to them. In fact
the accused remained outside the cafe when he himself was in it. Only
did P.W.2 move out when his attention was attracted
to the noise
outside. When he appeared he saw the accused chasing the deceased.
3 corroborate each other regarding the chase by the accused of the
the accused in his evidence testified that it was true that P.W.3
found him and P.W.2 in the cafe.
accused's version is that on the day in question he found P.W.2 at
Eighty-Eight Restaurant. He and P.W.2 were already from P.W.2's
when they met the deceased who said the accused was silly when they
met her. She also swore at him by his parents' private
parts. He was
hurt by this. He tried to approach her but was stopped by P.W.2 as he
intended speaking to her. He and P.W.2 proceeded
on their way to the
cafe inside which they were found by P.W.3 who said nothing to them
and they to her.
that he told P.W.3 that he wanted to assault or kill her mother. He
only said that P.W.3 should beg for pardon on his
behalf from her
mother because the deceased had insulted him alleging that it was
because he did not greet her. However this was
not put to P.W.3. Then
P.W.3 left leaving the accused in there. There and then the deceased
came in and started assaulting the
accused with a litter of coca cola
bottle. However this was never put to either P.W.2 or P.W.3, yet in C
of A (CRI) 7 of 1989 Naro
Lefaso vs Rex (unreported) at 7 Schutz P.
had this to say:
for the defence to put the salient parts of the defence case to the
relevant crown witnesses has been stressed by this
Court over and
over again. One reason for putting the defence version is to give the
crown witnesses a chance to counter it."
an accused person's point of view failure
his version before he gives evidence leads to a natural inference
that he has concocted a version at the last minute,
even though such
an inference should not always be drawn."
accused proceeded to say the deceased while assaulting him was saying
he is silly like his father after whom he had taken.
outside and made a spectacle of herself shouting and saying the
accused should come outside the cafe so that she could
show her that
she was a girl from Maseru. The accused obligingly came out and went
to tell her she should not disgrace him as she
was his aunt.
accused said he noticed that the deceased was ready to fight as she
was holding a knife which was already unclasped. He only
when he was a foot away that the deceased was holding a knife.
deceased delivered a stabbing blow at him the accused got hold of her
hand and pulled the knife away and quickly cut her
with it for he was
also afraid of the knife.
he stabbed her once with that knife.
cross examination the accused stated that he did not know how old he
is. He denied that he and P.W.2 met the deceased along
their way from
Eighty-Eight Restaurant to P.W.2's home. He would not say why P.W.2
should lie saying the accused even dropped the
case of beer in order
to approach the deceased in the manner earlier described.
accused said it surprised him that P.W.2 should only have heard the
deceased say he was silly and fail to hear when she was
parents' private parts. He said he didn't know why P.W.2 should say
the accused approached the deceased aggressively.
He denied that he
he didn't know why P.W.2 felt he should stop
denying that he,had earlier said P.W.2 urged him to go and beg for
pardon from the deceased the machine was played back and
unmistakeable voice contradicted him and only then did he admit he
had been correctly recorded as having said so.
therefore he had told his counsel that P.W.2 had urged him to ask for
pardon from the deceased he said
it was put to P.W.2 that he said accused should go and ask for pardon
he said it was. When told to desist from lying he
his previous answer and said that he had made a mistake.
testified that he had gone to buy bubble gums from Mokone's cafe. But
when he entered the shopkeeper P.W.4 went
"You remained in the shop when P.W.4 Makena went out -?
I remained with another man I don't know.
What was he doing -? Drinking with P.W.4 Makena. Anybody else in
there -? Only two of them.
Makena drinking with -? Moiloa."
from the above it should not be difficult, to realise that the
accused is a facile liar. In one and the same instance he
doesn't know with whom Makena was drinking and yet he says the man is
Moiloa. Thus showing he knew him, this being borne
out by the fact
that he said he
speaking with this Moiloa in the cafe.
accused said the only occasion he spoke to P.W.3 in the cafe was when
he asked her to go and ask for pardon for him from the
said there was no bad blood between him and P.W.3 and that no quarrel
had occurred between them previously. He was
thus hard put to it to
say why then P.W.3 could lie about him and say he threatened to kill
her mother while they were in Mokone's
cafe. He merely contented
himself with saying he was surprised at this.
accused stated that if the question was ever put to P.W.3 that her
mother was the first to attack him with the coke bottle he
heard. Amazing to relate that even though this would seem to
constitute a vital aspect of the accused's defence in this
however let it pass over in silence yet he sought to make the court
to believe that he was not satisfied with the fact
that his counsel
omitted to put it on his behalf. When his attention was drawn to the
fact that if he felt while proceedings were
going on in court unequal
to the task of catching his counsel's eye in order to let the latter
approach him there in the box his
opportunity seemed in these
proceedings not to have been lost since P.W.3 had been recalled after
an interval spanning about eight
hours. At this juncture the accused
was clearly in a cleft stick yet in Phaloane vs Rex 1981(2) LL A at
246 Maisels P. as he then
"It is generally accepted that the function of counsel is to put
the defence case to the crown witnesses, not only to avoid
suspicion that the defence is fabricating, but to provide the
witnesses with the opportu-nity of denying or confirming
the case for
the accused. Moreover, even making allowances for certain latitude
that may be afforded in criminal cases for a failure
to put the
defence case to the crown witnesses, it is important for the defence
to put its case to the prosecution witnesses as
the trial court is
entitled to see and hear the reaction of the witness to every
to me palpably false that if counsel for the accused had been briefed
by the accused on this aspect of the matter he could
have failed to
put it to the crown witnesses.
the accused having heard P.W.6 give 13 evidence from the start to
finish, even though he realised that at the time he
went to make his
statement it was before
that he did so and further that P.W.6 saw the injury that he
sustained on his mouth from the alleged bottle blow deli vered
deceased, failed to have this question put to P.W.6 and thus denied
the court the opportunity to observe the reaction of
P.W.6 to this
important allegation which could either have been confirmed or
accused stated that he did not chase after the deceased and
emphatically said P.W.2 who said he saw him do so when he appeared
was lying and should not be believed because he never got outside the
cafe at all. But it was never put to P.W.2 that he never
got out of
the cafe at all. This is a matter that this Court heard for the first
time when the accused was giving evidence under
cross examination yet
in Lefaso above at 8 Schutz P. stated that. another reason for
putting the defence version is that
"crown counsel is entitled to assume that a fact is not in issue
if it has been deposed to and is not challenged. There is
no call on
the prosecuting counsel to call further witnesses to prove a fact
which is not in issue."
accused said he stabbed the deceased on the right side of the chest
and urged that P.W.6 who said the injury was on the
left side of the
chest should be disbelieved even though her version which was clearly
in conflict with his was let go unchallenged.
same vein in Small vs Smith 1954(3) SA 434 Classen J. pointed out
"It is grossly unfair and improper to let a witness's evidence
go unchallenged in cross examination and afterwards argue that
must be disbelieved."
regard to the evidence of P.W.3 vis a vis the actions of the accused
on that day I find the words of Schutz P. highly commendable
in C of
A (CRI) No.3 of 1984 Thebe vs Rex (unreported) at 20 where the
"To my mind the evidence should be accepted as false It is very
difficult to believe that the witness would have fabricated
story against his own cousin to whom he bore no hostility."
accused's narration of how he approached the deceased who had raised
a knife as he observed this some distance away was a pathetic
at wiggling out of a difficult situation created by himself for he
later said he only observed the knife in the deceased's
hand when the
latter suddenly raised it to stab him when he was barely a foot away
from her as he was responding to her call to
come and be shown that
she is a girl from Maseru. This sudden change from the fact that he
had observed the knife as he approached
to the fact that he only
observed it when raised and ready to stab him is difficult to
comprehend. However it seems that in his
invention of the defence as
he is getting along he wishes to improve his tale because in a clear
contradiction of his earlier statement
that he saw the knife raised
as he approached the deceased who was some distance away he later
sought to show that he failed to
see this knife well in advance
because the deceased had concealed it in her folded arms.
atmosphere that the accused himself created of a furious woman who
was boasting about being a girl from Maseru and was
obviously on a
war path it becomes difficult to accept the story that she was
folding her arms as she was doing so. It is said
she was wearing only
a jersey on her upper body thus her arms were not covered under a
Broadhurst vs Rex (1964) A C 441 at 457 Lord Devlin said:-
"Save in one respect, a case in which an accused gives
untruthful evidence is not different from one in which he gives no
evidence at all ...... But if on the
proved facts two inferences may be drawn about the accused's conduct
or state of mind, his untruthfulness is a factor which the
properly take into account as strengthening the inference of
in the accused's answers that he did not know why his counsel did not
put his version to the prosecution witnesses was
an attempt to cast a
blame on his counsel for the fabrications produced at the last minute
from the accused's own mind. I cannot
accept that his counsel is to
blame for this.
already dealt with the question relating to the advantage afforded by
the availability of medical evidence to establish the
cause of death.
But in Rex vs Fred Tekane 1980(2) L L R at 342 support is given to
"that it is not encumbent upon the crown to prove scientific
cause of death provided ...it is able to prove that the act that
resulted in death war; perpetrated by the accused."
In R vs
Adams 1957 CR. R.R. 365 in his charge to the jury Devlin J. as he
then was said
"Cause means nothing philosophical or technical or scientific.
It means what you twelve men and women sitting as a jury in
box would regard in a common sense way as the cause."
the same attitude Cotran J. as he then was in Thabo Tsomela vs Rex
1974-75 LL.R at 99 said
"I am unable to subscribe to the view that a court of law is
precluded from coming to a conclusion about the cause of death
reason only that no medical evidence was available, or if available
was not satisfactory or not (scientifically) conclusive."
regard to the two opposing versions namely that of the crown and that
of the accused it would be beneficial to adopt the approach
by Tebbutt J.in S. vs Jaffer 1988(2) SA 84 at 88 et seg that
"The story may be so improbable that it cannot reasonably be
true. It is not, however, the correct approach in a criminal
up the State's version........, against the
version of the accused and then to accept or reject one or the other
on the probabilities."
Munyai 1986(4) SA 712 at 715 arguing in the same vein Van der Spuy
"There is no room for balancing the two versions, i.e. the
State's case against the accused's case and to act on
Van der Spuy went on to say
"The fact that the court looks at the probabilities of a case to
determine whether an accused's version is reasonably possibly
something which is permissible. If on all the probabilities the
version made by the accused is so improbable that it cannot
supposed to be the truth, then it is inherently false and should be
Kubeka 1982(1) SA 534 at 537 Slomowitz said in regard to an accused's
"Whether I subjectively disbelieve him is, however, not the
test. I need not even reject the State case in order to acquit
am bound to acquit him if there exists a reasonable possibility that
his evidence may be true. Such is the nature of the
onus on the
der Spuy put it at 715
other words, even if the State case stood as a completely acceptable
and unshaken edifice, a court must investigate the
defence case with
a view to discerning whether it is demonstrably false or inherently
so improbable as to be rejected as false.
favoured course was adopted in S. vs Singh 1975(1) SA 277 where it
was said that the proper approach was for the court to apply
not only to the merits and demerits of the State and the defence
witnesses. but also to the probabilities of the case.
"This was to ascertain if the accused's version was so
improbable as not reasonably to be true. This however, did not mean
departure from the test laid down in R vs Difford 1937 AD 370 at 373
that even if an accused's explanation be improbable, the
court is not
entitled to convict unless it is satisfied not only that the
explanation is improbable but that beyond any reasonable
doubt it is
false. If there is any reasonable possibility of his explanation
being true, then he is entitled to his acquittal."
had close consideration of the foregoing in conjunction with the
facts presented before me in this case and am of the firm
that the accused's version is not only inherently improbable but
beyond all doubt false. Thus it cannot be possibly reasonably
It is thus rejected on that score.
accused was aware that he was wielding a dangerous weapon. He ought
as a reasonable man in the circumstances, to have realised
thrust into the deceased's body it might cause injury or even death.
no room for the application of the Homicide (Amendment) Proclamation
42 of 1959 even granting that the accused was provoked
at his first
encounter with the deceased by the latter's remark that he was silly.
However a lot of time passed in between then
and the second encounter
such that his passion had cooled down.
no room for a plea of self-defence because the accused had disarmed
his victim when he stabbed her.
accordingly found guilty of murder as charged. My assessors agree.
J U D G
E. 16th August, 1990.
for the accused addressed the Court in extenuation.
thrust of the accused's plea in this regard is
counsel asked the Court to take into account that although the
element of provocation could not be relied upon in the main trial
because of its remoteness at that stage to the criminal act, yet for
purposes of extenuation that element cannot be discarded as
further urged the Court to consider the fact that the effective cause
of death did not derive from the state of criminal intent
as dolus directus but rather from the one known as dolus eventualis.
finally submitted that even though the accused's age is unknown he is
a young man.
Court's view is that even though taken individually none of these
factors can help reduce the accused's blame
however their cummulative effect suffices to ground a conclusion that
extenuating circumstances exist in the instant
case. The Court
therefore is persuaded that the extenuating circumstances do in fact
effort to determine the accused's age his counsel consulted his
father who was sitting in Court.
subsequently informed the Court that the accused is aged 19. I have
already stated that this factor
could not reduce the accused's moral blameworthiness. In this regard
I am fortified by the minority decision by the Appeal
in C. of A.(CRI) Thebe vs Rex.
that the ultimte sentence has been averted should be as far as the
accused's luck can go and no further.
heartless manner in which the deceased was
in full view of her then 12 year old daughter and the fact that no
apparent reason justified the accused's wicked act
on a defenceless
female should suffice to indicate the Court's attitude towards the
accordingly sentenced to 19 years' imprisonment. My assessors agree.
16th August, 1990
: Mr. Mokhobo
Defence: Mr. Pitso
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