CRI\T\60\91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

THUSO
MABASO Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 20th day of August.
1993

The
accused is charged with the murder of Fielane Mohokane on or about
the 10th day of September, 1989, and at or near Masaleng
in the
district of Leribe.

He
pleaded not guilty to the charge.

P.W.1Raphael
Monkhi testified that on the day in question he went to a place where
the initiates for circumcision were gathered
as they were due to go
to a circumcision school in a week's time. The meeting proceeded
well. At about 1.00p.m. it came to an end
and the people started
returning to their homes. P.W.1says that on their way back home he
was in the company of the following people:
Paleng, Thabo, Jaba,
Koaling, Thota, deceased and the accused. He was walking infront of
the accused and the deceased and was about
three paces ahead of them.

2

P.W.1
says that the accused hit the deceased twice above the left ear with
a stick. The deceased fell down. Accused then hit him
three times on
the ribs with a stick. Thabo intervened and stopped the accused from
assaulting the deceased. There was no exchange
of words before the
accused hit the deceased with a stick. He says he did not intervene
because he was afraid of the accused. The
deceased was holding a
stick in his hand but he never used it because when the accused
struck him on the head he fell down. After
the assault the deceased
bled from the mouth and the nose. A scotch cart was brought to the
scene of the crime and the deceased
was conveyed to the hospital.

In
cross-examination P.W.1 said that he did not know that the deceased
was a lunatic. He was the uncle of the accused. He did not
know that
there was bad blood between the accused and the deceased. He says
that when he looked back he saw that the accused was
assaulting the
deceased. He saw two wounds on the head.

P.W.3
Mpho Tsupane testified that on the day in question he was on the hill
between the villages of Khapung and Liphofung. He was
returning from
a meeting at Phatlalla concerning a circumcision ceremony that was to
take place in a week's time. He estimates
the time to have been about
3.00p.m. He was accompanied by some people including P.W.1, deceased
and Thabo.

3

The
accused came at a later stage and joined the others where they were
standing. When the accused joined them he did not speak
to anybody.
He, all of a sudden, struck the deceased on the head with a stick.
The latter (ell down and the accused continued hitting
him after he
had fallen down. Thabo stopped the accused from assaulting the
deceased.

P.W.3
says that he asked the accused why he was assaulting the deceased. He
said that the deceased had once struck him. Accused
was already
walking away when he gave the reason why he assaulted the deceased,
Thabo also asked the accused why he assaulted the
deceased. He did
not answer him. P.W.3 says that the deceased was unable to stand up.
He was unable to speak. They took him and
put him in a shade. He
observed the following wounds: one on the middle of the head,one on
the left side of the head and others
on the ribs. He left the
deceased in the care of P.W.1and Thabo. He fetched a scotch cart from
the village and the deceased was
taken to the hospital.

It is
P.W.3'8 evidence that on that day the usual and customary "playing
with sticks" was not there. The accused just
assaulted the
deceased without any justifiable cause. The deceased never hit the
accused with a stick while they were standing
there at the side of
the hill. To his knowledge the accused and deceased had cordial
relations and they were related

4

to each
other.

In
cross-examination P.W.3 says that at the preparatory examination he
said that other men did not intervene in the fight but Thabo
did by
warding off the blow delivered by the accused directed at the
deceased. He forgot to mention that the deceased was bleeding
from
the ear. He remembers very well that the deceased bled from the ear
because he was the one who put the deceased in the scotch
cart and he
bled on the pillow he brought.

The
version of the accused is that they were returning from a place
called Moroeroe where they had gone to see the initiates. He
was in
the company of Moqebelo and Thota. They stopped at the hillside and
saw their fellow men coming up from Moroeroe River and
were singing.
They joined the group and went along with them singing. When they
came to the second hill the deceased took two steps
towards him and
said: "Hooa". This was an invitation to him that they
should engage in a stick play. He accepted the
invitation.

As soon
as they started the deceased struck him with his stick on the
forehead just behind the hairline. He (accused) struck the
deceased
on the forehead. The deceased struck him on the left elbow. He
(accused) struck the deceased above the left ear. The deceased
fell
down. Thereafter he left. The deceased

5

appeared
to be tired. He was able to ait on hie buttocks after he hit him.
Later he stood up and walked to the side of the hill.
He says that
after the deceased had fallen down he never assaulted him. He denies
that Thabo stopped him from assaulting the deceased.
All the men were
standing about seventy paces from them and made no attempt to
intervene in play when it developed into a fight.
One Koaleli shouted
at them and asked them why they were fighting. Accused says that he
told Koaleli athat he saw what was happening
but did nothing.

The
accused testified that he surrendered himself to the police. He had a
wound on the forehead which was still bleeding when he
came to the
police. His left elbow was swollen. The police saw his injuries but
they did not refer him to a doctor for examination
and treatment.
When he was taken to court for remand the wound was still clearly
visible but the magistrate made no order that
he must be examined by
a doctor. When he came to prison the officers there did not refer him
to a doctor despite the fact that
they saw the wound. He says that he
did not help the deceased because the blood from his wound was
pouring into his eyes. Although
he still thought about the deceased
he had no strength to help him. He did not have the chance to retreat
after he was struck on
the forehead. Any movement backwards would
have caused him to fall and thus exposing himself to a serious
danger.

6

Mr.
Klaas, attorney for the accused, submitted that there were minor
discrepancies and contradictions in the evidence of P.W.1and
P.W.3.
As an example of this he says that P.W.1says that there were eight
men when the accused attacked the deceased. On the other
hand P.W.3
says that there were only four men. I agree that there seems to be
discrepancy in their evidence on this point. However,
there seems to
have been a number of groups of men and joining each other at various
points along the way. P.W.1mentions that the
accused joined their
group just before he assaulted the deceased. The question is whether
he was alone or not.

The other
contradiction is that P.W.1said they were still walking when the
attack took place. On the other hand P.W.3 says they
had stopped.

The
evidence of the two Crown witnesses is that on that day there was no
playing with sticks. The accused attacked the deceased
without any
warning and struck him on the head and on the left side of the head.
He fell down. The accused belaboured him after
he had fallen down. In
his defence the accused says that the deceased invited him to a play
with their sticks. Instead of playing
he (deceased) struck him on the
forehead with a stick and the play developed into a fight. It was
never put to the Crown witnesses
in cross-examination that the
deceased was

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the first
to hit the accused. I heard for the first time when the accused went
into the witness box that the accused was struck
by the deceased with
a stick. It was never revealed that the accused had sustained any
injuries at all.

It was
never put to the Crown witnesses that the accused was actually
defending himself and that he had no chance to retreat.

The Crown
witnesses, or at least one of them, i.e. P.W.3 said that when he
asked the accused why he assaulted the deceased, he said
the deceased
had struck him on a previous occasion. In other words he was saying
that he was retaliating. This allegation was not
denied in
cross-examination. It stands unchallenged.

The whole
of the defence case was never put to the Crown witnesses. In Small v.
Small 1954 (3) S.A. 434 Classesn, J. said:

"It is, in my opinion, elementary and standard practice for a
party to put to each opposing witness so much of his own case
of
defence as concerns that witness, and if need be, to inform him, if
he has not been given notice thereof, that other witnesses
will
contradict him, as to give him fair

8

warning and an opportunity of explaining the contradiction and
defending his own character. It is grossly unfair and improper to
let
a witness's evidence go unchallenged in cross-examination and
afterwards argue that he must be disbelieved."

Again in
Phaloane v. Rex 1981 (2) L.L.R. 246 at pp . 252-253 Maisels, P. said:

"The learned trial Judge however stated that the failure by Mr.
Erasmus to put his client's case did not imply an acceptance
of the
Crown witnesses' evidence although it may weaken criticism of these
witnesses. He considered that the evidence from the
appellant was
entitled to the same careful consideration as if the elements of the
defence case had been put to the witnesses for
the Crown. Speaking
for myself I think the learned Judge was, if anything, leaning over
backwards to be fair to the appellant and
I am bound to say that I
attach considerable weight in the circumstances of this case failure
by the defence to cross-examine the
Crown witnesses on the crucial
questions as to whether the deceased was tied by a rope and chain
when he spoke to the appellant
and as far as Motlaka is concerned the
alleged attack by the deceased on the appellant. But, so Mr. Braamua
argued, the defence
case was :substantially" put to Motlaka. He
referred to a number of passages in the record in support of his
submission, I
have read all these passages and I can find no support
for the suggestion that his defence was put at all to Motlaka, let
alone
put substantially."

In the
present case I attach a great deal of importance to

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the
failure of the defence to put their case to the two Crown witnesses.
Mr. Klaas is a fairly well experienced attorney of this
Court and I
find it unbelievable that he could overlook to put the entire defence
case to the Crown witness. There was no indication
at all that the
accused had been hit by the deceased and that he had sustained any
injuries. Such injuries were not even shown
to Detective Trooper
Moeketsi (P.W.2) who says that the accused made an explanation to him
and gave him the stick (Exhibit "1").
I find it quite
improbable that the police, the magistrate and the prison authorities
showed no interest in the wounds the accused
had allegedly sustained
and that they were never medically treated until they healed on their
own,

I found
P.W.1and P.M.3 to be honest reliable witnesses who were not shaken at
all by the cross-examination by the defence counsel.
On the other
hand the story of the accused is so improbable that it cannot be
reasonably possibly true. It was obviously an afterthought
of which
his own counsel was probably not aware.

Mr. Klaas
submitted that the Crown has failed to prove that there was
deliberate and direct intention to kill the deceased. The
evidence
which I have accepted is that the accused struck the deceased without
any prior warning and without any provocation on
the part of the
deceased. Exhibit "1" is a very heavy and

10

ragged
stick. In striking the deceased with that kind of weapon the accused
foresaw the possibility that his act was likely to cause
the death of
the deceased but he was reckless as to whether death occurred or not.

I find
the accused guilty of murder.

My
assessors agree.

J.L.
KREOLA

JUDGE

20th
August, 1993.

For Crown
; Mr. Ramafole

For
Defence ; mr. Klaas.

Extenuating
Circumstances

The fact
is that this is a dolus eventualis is an extenuating circumstance.

Sentence:
Seven (7) Years' imprisonment.

Exhibit
"1' is forfeited to the Crown.

J.L
KHEOLA

JUDGE

20th
August, 1993.