CRI\T\42\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

POTSANE
MOSUHLI Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 16th day of August.
1993.

The
accused is charged with murder, it being alleged that upon or about
the 27th day of April, 1985 and at or near Bokhoasa in the
district
of Thaba-Tseka the said accused did unlawfully and intentionally kill
Tlhoriso Ramaimane.

Re
pleaded not guilty to the charge.

According
to medical report of the post-mortem examination the deceased's death
was due to repeated strong beatings to the head
and those to the left
hemisphere of the brain impression fractures and also a large
epidural haematoma, causing sudden death.

2

The
evidence of Mothea Makhoali is that on the day in question he was at
the home of 'Mamokhafola. He was in the company of Maieane,
Potsane,
Tlhoriao and many other people. It was at dusk. There was moonlight.
From there he, accused and Maieane went to the home
of Motsunyane,
They all got into the house. The accused invited one Hlakae to come
out of the house with him. Hlakae complied.
After that the rest of
them also went outside. Mothea says that when they came out, Hlakae
and the accused were at the forecourt.
The accused was holding Hlakae
and demanding that he should pay back the money he owed him. Hlakae
said that he would pay it some
other day.

At that
juncture Maieane held Hlakae and shook him asking him when he would
pay the money. The deceased joined the quarrel and caught
hold of
Hlakae's stick and tried to wrest it from him. After a short struggle
Hlakae managed to pull away his stick. He ran away
and got into the
house. The accused held the deceased at the shoulder and pulled him
away. They stood about forty paces from Mothea
who says that he heard
when the accused asked the deceased whether he was "joining it".
Immediately after that he heard
a thudding blow and one of them fell
down. Because of the poor state of light he did not see who was
falling down.

As he
approached them he saw that Maieane was also there and

3

was
stopping the accused from assaulting the deceased. When he came to
them he asked them what they were doing. NO one answered
him. The
accused and Maieane left. He saw that it was the deceased who had
fallen down and that he had a wound on the forehead.
He rose and
walked away. The accused was drunk and had a "lebetlela"
stick. Maieane was also holding a "lebetlela"
stick. When
it was put to him that it was Maieane who had assaulted the deceased,
he said he did not know.

Mabilikoe
Ntlibi is the chief of that area. He went to the house of 'Matli and
found the deceased there. He noticed that he was
on the verge of
dying and asked him what had happened. He said: "Potsane"
and died.

I am of
the view that this utterance by the deceased just before he died
cannot be regarded as a dying declaration because it was
not a
complete statement. We do not know what he intended to say about the
accused. Furthermore there is no evidence that when
he uttered that
word he had lost all hope to live.

Maieane
Sennenne testified that when they left Mamokhafola's place he was
with the accused and P.W.I. When they came to Motsunyane's
place the
accused said that he was going to fetch his money from Hlakae. He got
into the house and came out with Hlakae. They stopped
about twenty
paces from him. He then heard

4

them
making noise. He went to them and found that the accused was
demanding his money from Hlakae. The latter was saying that he
would
pay it some other day. At that time the deceased came and tried to
wrast a stick from Hlakae. Thereafter the accused had
a quarrel with
the deceased. He was saying that that day was not the day on which
the deceased struck him, Maieane says that he
intervened and
separated them.

The
deceased left and was some distance ahead of them. The accused ran
towards him and when he came to him he struck him at the
back of the
head with a stick. The deceased fell down. The accused hit him on the
head again. Maieane says that when the accused
delivered the third
blow at the deceased he (Maieane) warded it off with his own stick.
The accused said that he was retaliating
because the deceased once
hit him.

It will
be recalled that at one stage when P.W.2 was being cross-examined he
suddenly said that he was mentally disturbed and that
he was seeing
strange things. It was very clear that P.W.2 was telling a lie. It
seems to me that the real reason why he pretended
that he was not
mentally sound was that he did not want to give further evidence
because the cross-examination was simply too much
for him. An order
was made that he must be examined by a psychiatrist. As soon as he
was released from gaol he vanished into thin
air. All attempts to
trace him have been

5

in vain.
I have no doubt in my mind that he is deliberately evading service.
He was aware that further cross-examination would reveal
his lies.

It will
be noted that at the preparatory examination he was declared as an
accomplice. This indicates that he had made a statement
to the public
prosecutor which implicated him in the same charge against the
accused. The Crown cannot declare a witness as an
accomplice unless
that witness has a made a statement that he participated in the crime
with which the accused is charged. However,
when he got into the
witness box he gave a statement that exculpated him and implicated
the accused.

I have
formed the opinion that P.W.2 is dishonest and unreliable. His
evidence must be discarded in its entirety.

The
version of the accused is that when they left 'Mamokhafola's place he
was accompanied by Maieane, Hlakae and Mothea. They had
been drinking
Sesotho beer and they were drunk. Their intention was to go to their
respective homes. When they came to Moteunyane's
home Maieane peeped
at the door and called the deceased. The latter came out and he left
with Maieane. He followed them. He was
with Mothea. Maieane and the
deceased were about seventy paces ahead of them. Accused says that he

6

suddenly
heard the sound of a stick blow. Mothea asked him whether those
people were fighting or playing. He said he did not know.
Mothea
remained behind because he was passing water. He (accused) went to
the deceased and Maieane. When he came to them the deceased
had
already fallen down and Maieane was standing besides him. He asked
Maieane why he had struck the deceased. He got no answer.
Mothea
eventually arrived and he also asked Maieane what the deceased had
done but there was no answer.

The
accused says that he and Mothea passed and continued on their way to
their homes. When they were a short distance from where
the deceased
had fallen they saw Maieane coming behind them. The deceased also
rose and came behind them.

In
cross-examination the accused admits that he did ask Hlakae about his
money. He denies that there was any quarrel between him
and Hlakae
about the money, He did not see when Maieane manhandled Hlakae.

This is
an unfortunate case because on the night in question all the
witnesses who gave evidence before this Court, including the
accused
were drunk. The accused concedes that he was very drunk. He concedes
that it is possible that he might not have seen some
things due to
drunkenness.

7

It was at
night and the events in this case took place well over eight years
ago. All these things make it impossible for this Court
to ascertain
what exactly happened. I have already rejected the evidence of P.W.2.
Now the single witness who implicates the accused
is P.W.I. The
accused has denied the story of P.W.1and has given his own version.

InR. v.
Difford 1937 A.D. 370 at p. 373 Greenberg, J. said:

"........ no onus rests on the accused to convince the court of
the truth of any explanation which he gives. If he gives an

explanation, even if that explanation is 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,"

In the
present case I have considered the explanation given by the accused
and have come to the conclusion that there is a reasonable

possibility that it might be true.

8

The
accused is found not guilty and he is discharged.

My
assessors agree.

J.L.
KHEOLA

JUDGE

16th
August, 1993.

For
Crown: Mr. Thetsane

For
Accused Mr. Mathafeng