CRI\T\69\91

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

TEKE
ANDREW MOEKETSI JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on on the 21st day of August,
1992

The
accused pleaded not guilty to the crime of murder allegedly committed
on 17th October 1990 at Lebung village in the district
of Thaba-Tseka
where the victim Kompi Shoaqa died.

The
defence admitted the evidence led at P.E. in respect of

PW2 - Mahasele

PW3 - Kanono Kanono

PW5 - 'Mamusa Kanono

PW6 - 'Manthabiseng Tatolo

PW8 - Monaheng Khomari and

PW10 - Trooper Matete

The crown
accepted these admissions and they were accordingly read into the
recording machine and thus made part of the instant
proceedings. The
post-mortem report Exhibit A was also incorporated into

2

the
instant proceedings in terms of Section 223(7) of the Criminal
Procedure and Evidence Act 1981.

The
deceased who was at the time still alive was discovered some fifty or
so paces away from the home of PW4 'Malebusa. When so
discovered the
deceased was unable to walk. He appeared to have sustained two
injuries on the head. One was an open wound to the
left of the
forehead and was bleeding the other was a swollen wound above the
left ear.

However
the untested findings recorded by the doctor who didn't even give
evidence in the Court below make no such distinct observations
as
have been testified to by other crown witnesses. As to external
appearances that doctor merely refers to scalp wound 2 or 3

centimetre laceration in frontal area (L). I take it (L) stands for
left. He further refers to depressed skull fracture on the
parietal
area midline with cracks to temporal areas bilaterally tempo to
tempo. With Epidural haematoma and brain compression and
subdural
haematoma.

The cause
of death is recorded as fracture of the skull with epidural and
subdural haematoma.

It is
common cause that the accused had come to live at the home of
'Mathoola at Sehonghong Ha Clark more than ten kilometres

3

away from
the accused's home.

PW7 is a
village nurse working in a local clinic next to an airstrip in her
village. She testified that she discovered a blood stained
stick
Exhibit "1" amongst the accused's blankets in the hut used
by her as a kitchen and allotted to the accused as a
living house and
bedroom. She accordingly comes daily into this hut for purposes of
cooking and sweeping. Thus she also observed
that the stick on this
day, as against any previous days when she had occasion to handle and
see, it had a crack which she showed
to the court.

She had
been summoned to her work where on arrival she found the deceased
lying in a wheelbarrow which apparently had been used
to convey him
from the scene to the clinic. She cleaned the deceased's wounds and
had them dressed.

Police
were sent for; and it is PW7's evidence that before they arrived the
stick had been removed from where she had last seen
it among the
blankets but placed behind the suitcases.

PW4
testified that the deceased had been to her house and left in the
evening shortly before the accused arrived there in the deceased's

absence.

4

PW4 is a
married woman of hardly any intelligence at all. Her looks if
anything leave much to be desired. But nonetheless she was
in love
with the deceased and at the same time with the accused. However it
was not until she had been in love with the accused
for a year that
she told the deceased who had been in love with her for three years
that she no longer loved him.

On the
evening in question she told the deceased that she was no longer in
love with him and had told him so many many times before.
The
deceased accordingly left her and went away into the night. Shortly
afterwards the accused came to PW4's house, asked her to
come out and
go round behind her flat-roofed house and pointing into the darkness
said to her "there is that friend of yours
lying there. I have
killed him". She also said the accused threatened her with death
if she revealed to anyone. Under cross-examination
while initially
appearing to stick to her story she nonetheless said the accused
never said he had killed the deceased. She became
so muddled that
salvation in regard to her version only came through the question put
to her by Counsel for the accused that the
accused said he had beaten
the deceased and not killed him.

Thereafter
PW4 and the accused left for PW3's place (Kanono Kanono's) where they
were accommodated for the night. The accused said
they used to be
accommodated there on previous

5

occasions
to give vent to their secret love. However PW4 said their love was
not secret.

Truly
speaking it does not seem to me that there is much controversy in the
crucial facts in this matter for the accused does not
deny assaulting
the deceased with the result that the deceased succumbed to the
injuries sustained.

There was
no eye witness to the assault. In this regard the Court has had to
hear and consider if the accused's story at the scene
was reasonably
possibly true. It is a further feature of this case that among items
collected at the scene during the discovery
of the deceased in
distress was a stick identified as his. None of these articles
including the said stick has been exhibited to
this Court nor were
the same handed in in the Court below - A damning pointer to the
laxity shown by investigators in criminal
offences in this country
lately.

However
the accused stated that when he was about to reach PW4's place at and
around the scene the deceased whom he did not and
could not recognise
at the time though he was a man he knew well enough, asked who he was
and the accused asked in turn who the
poser of the question was.
Thereupon the deceased said -

"Your mother's vagina, I have been wondering all along why PW4
does no longer requite my my love. So you are the culprit".

6

Saying so
the deceased threw a stone at the accused and felled him to the
ground as the stone had had its mark on the accused's
waist.
Thereafter the deceased rushed at the accused and hit him with a
stick just after the accused had risen. In the process
the accused
hit the deceased twice with Exhibit "1" whereupon the
deceased fell to the ground.

It was
submitted on behalf of the defence that there was no need to have put
to crown witnesses the fact that Exhibit "1"
had already
cracked when the alleged assault in which this weapon was used,
occurred. There is no merit in this argument because
it ignores a
legitimate inference to be drawn that the blow must have been very
heavy to have resulted in the stick cracking as
it did. This argument
further ignores the inference to be drawn that if the blow was as
hard as demonstrated by the cracking of
Exhibit "1",
administered on the deceased's head, then the accused's story that he
expected the deceased later to rise
after he had left him lying there
is baseless. This now further taints his story that he had acted in
self-defence in a fight wherein
the deceased was the aggressor. The
fact that the important explanation of how the deceased hit him with
a stone and felled him,
and later hit him with a stick has been shown
to be an afterthought, strengthens the conclusion that the so-called
self-defence
that he wishes to rely on before this Court is a
fabrication.

7

While
indeed the accused bears no onus to disprove the case against him, it
was a matter of great surprise that a story tendered
by the accused
and acknowledged by him to be of crucial importance in his defence -
inasmuch as it gives colour for the reason
why he assaulted the
deceased - should only be heard for the first time when he was giving
evidence in his defence. The authority
of Phaloane vs Rex 1981(2) LLR
by Maisels, as he then was, at p.246 is that :

"It is generally accepted that the function of counsel is to put
the defence case to the crown witnesses, not only to avoid
the
suspicion that the defence is fabricating, but to provide the
witnesses with the opportunity of denying or confirming the case
for
the accused. Moreover, even making due allowances for certain
latitude that may be afforded in criminal cases for failure to
put
the defence case to the crown witnesses, it is important for the
defence to 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 important allegation".

See also
Small vs Smith 1954(3) SA at 434.

In the
instant case the accused alleges that he told this new matter
referred to above to PW4 yet his side never bothered to at
least in
cross-examination to remind her of what it is alleged the accused
told her. In credit to him the accused owned up that
he did not
reveal this important part of his defence to his counsel.

To my
mind the explanation that the accused gave of the

8

self-defence
relied on by him should fail as a mere afterthought fabricated as the
last minute attempt to foil the case for the
Crown. It is therefore
rejected as false beyond all doubt.

However
the Court cannot in the circumstances of this case say the crown has
proved the intention to kill on the part of the accused.
There is no
evidence that the accused took his stick particularly for the purpose
of killing the deceased that day. Available evidence
shows that a
chance meeting between two males who were vying for the love of a not
particularly good looking female crossed each
other's paths and in
the process the less fortunate one died as a result of the assault
received from the other.

The
accused's conduct is not consistent with that of a man who had fought
in self-defence. He alleges he was injured in the fight
but never
bothered to lodge a complaint with regard to the unprovoked attack he
received from the deceased. He saw that the deceased
couldn't rise
after he had hit him yet without bothering to see whether he would
rise from the assault he leaves his victim in
that state and goes to
enjoy the night with a girl friend a long way away from the scene.
Having woken up early he did not bother
to go and observe if the
deceased had managed to rise. It cannot serve as an excuse for his
callous behaviour that whilst at PW4's
house pointing to her what
appeared to be a

9

figure
lying in the dark he thought the deceased would pick himself up and
go because he had seen the deceased strike light after
light at the
scene before PW4 was called out to come and see that friend of hers.

Because
the positive intent to kill has not been proved though the claim of
self-defence has been rejected as a mere conjecture
the accused is
found guilty of Culpable Homicide.

My
assessors agree.

JUDGE

21st
August, 1992

Mitigation
pleaded : Accused has no previous convictions.

SENTENCE:
Sentenced to 4 years' imprisonment half of which is suspended for 2
years on condition that the accused be not convicted
of a crime
involving violence to the person of another committed during the
period of the suspension.

My
assessors agree.

JUDGE

21st
August, 1992

For Crown
: Miss Nku

For
Defence: Mr. Mathafeng