CRI\T\84\91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

HONKENE
TLELASE Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 15th dav of
February. 1994

The
accused is charged with murder of Ramoloko Kompi on the 6th day of
January, 1990 and at or near Mekaling in the district of
Mohale's
Hoek.

In Count
2 he is charged with attempted murder, it being alleged that upon or
about the 8th day of January, 1990 and at or near
Mekaling, in the
district of Mohale's Hoek, he unlawfully I and intentionally
assaulted Nkuebe Mapholo with intent to kill him
by hitting him with
an iron rod on the head and face

Accused
pleaded not guilty to both charges

B.W.I
Nkoebe Mapholo testified that on the day in question

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he was at
the home of one 'Matebello He was in the company of the accused, the
deceased and one 'Malili who was the girlfriend of
the accused with
whom he lived as man and wife They were drinking beer It was at about
7 OOp.m P W 1 says that he went out of the
house in order to relieve
nature When he came back he found that the accused was fighting with
'Malili He reproached the accused
and ordered him to stop it The
accused complied

Thereafter
he (P.W.I) and the deceased left As they walked away they saw 'Malili
come running behind them and the accused chasing
her She came to them
but passed them without saying anything Accused came to them P W 1
asked him what was happening He did not
answer him but struck him
with an iron rod on the left side of the head above the left ear He
fell down and while he was still
on the ground the accused hit him on
the face just below the eyes and on the left ]aw The accused left him
for a shortwhile but
came back and belaboured him with the iron rod
While the accused was belabouring him he lost consciousness and when
he regained
his senses he was in Queen Elizabeth II Hospital in
Maseru He remained in hospital for well over a month When he was
discharged
his jaws were tied with wires because they were badly
fractured

P W 2
Makhaola Molomo gave evidence that on the day in

3

question
he was called to the scene of the crime because he is the headman in
that village He found P W 1 lying on the ground behind
the house of
one 'Mathabo Mohale He had wounds on the head and the face While they
were trying to stop the bleeding the accused
came. He reported that
he had gone to the chief's place to report that he had caused
troubles there He (accused) said that they
should move aside so that
he could finish up P W 1 P W 2 refused to stand aside and warned the
accused that he had not come there
to play It was at about 8 00p m
and the accused was holding a pipe of about one metre in length P W 2
seized the pipe and kept
it Accused left

P W 2
says that after the departure of the accused he found two knives and
two hats near where P W.1 was lying. One of the hats
was identified
as that of P W 1 The other hat was not known by the villagers. The
accused was brought back to the scene of the
crime and was asked
where the owner of the other hat was He said he chased him and that
he ran downwards P W 2 instructed his subjects
to look for that
person because he suspected that he might be hurt The deceased was
found dead lying near a house nearby P W 2
asked the accused about
the deceased He said he (P W 2) should excuse him because he did not
realise that he had caused such injuries
The face of the deceased was
smashed from the forehead to the chin There were other wounds on the
left side of the head

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P W 2
says that the villagers were so angry that they assaulted the accused
with a stick but he succeeded to stop them after a wound
or wounds
had been inflicted on accused's head. He identified one of the knives
as that of the accused. He knew it because a week
before the present
incident the accused had attacked one Moramang Kasane with it He had
reprimanded him and seized the knife But
after a few days he released
it to accused because he decided not to bring any criminal charge
against him

Warrant
Officer Tsepe arrested the accused and charged him with murder and
assault with intent to murder He says that he was given
a pipe which
was about one metre long The hole of that pipe was filled with cement

P W 4
'Mathabo Mohale testified that on the night in question she was
sleeping in her house when one Masechaba came and woke her
up She
rose and stood at the door She saw two people at her forecourt. They
were the accused and P.W 1 The former was threatening
to stab the
latter P W.I said he should do so In the end P W 1 fell down because
accused hit him with an iron rod The deceased
had been standing on
the path nearby He ran away when P W 1 fell down The accused chased
him They ran until they disappeared on
the other side of the house
which is near hers (P W 4)

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Thereafter
she went into her house and dressed She again came out of the house
and saw the accused coming back from where he had
disappeared with
the deceased He was kicking something black and when he came to where
the deceased was still lying on the ground
he remarked that he
(deceased) was still there He hit him four times with the iron rod.
She confirms that when the Headman asked
the accused what had
happened to P W 1, he (accused) said he should be forgiven because he
did not know that he had caused any
injuries When it was put to her
by the defence counsel that the accused chased the deceased for only
a short distance and came
back, she insisted that he chased her until
they both disappeared at the corner of that other house

The
version of the accused is that when he left 'Matebello's place he was
accompanied by 'Malili P.W 1 and another man he did not
know were
ahead of them 'Malili rushed saying that she was going to buy candles
and matches at 'Masentle's cafe. He also walked
fast behind her
because he intended to buy tobacco from the same cafe When he came
behind the cafe he found 'Malili standing there
with P W 1 and that
other man He asked her why she was standing there when she had said
that she was in a hurry to get to the cafe
She asked him what she was
supposed to do to show that she was in a hurry P W 1 interrupted her
and asked the accused what he was
asking that woman. He (P W.1)
insulted him. When accused asked him whether he was aware that

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he was
insulting him, he said. "Yes, I am saying so, this woman is my
cousin " P W 1 was coming nearer to him when he
uttered those
words All of a sudden P W 1 raised his right arm and stabbed him on
the right arm He again stabbed him on the left
hand. After that they
fought with their sticks He (accused) hit him on the left side of the
head Accused says that it was a stick
and not an iron rod or pipe as
the witnesses said. His stick broke when he hit P w 1

While he
was fighting with P W 1 he noticed that the other man was still there
That other man hit him on the shoulder with a stick
When he tried to
turn and attend to that man, P W 1 hit him on the shoulder He fell
down. That man ran away and when he rose he
did not see where the man
had gone because he was fighting fiercely with P W 1 Finally he hit P
W.1 on the head He fell down He
ordered him to take out the knife
with which he stabbed him At that time one Mabotse came and said'
"Soare, once a person,
has fallen down leave him, do not
belabour him". He stopped hitting him and Mabotse ordered him to
go and report himself to
the chief He complied He says that when he
returned to the scene of the crime the chief was already there He
(chief) instructed
his subjects to beat him up They belaboured him
with sticks

According
to the post-mortem examination report the deceased

7

had the
following injuries; open skull fracture with fracture of the base of
skull and direct brain damage, seven tearwounds on
the head with
extensive and smash fractures of left mandibular and maxilla, open
fracture of left temporal bone extending as fracture
of base of left
skull The chin and the left face were deformed

The
medical report of the accused reveals that he had a 2cm laceration on
the occiput, swelling below the left eye and a tiny laceration
on the
right arm

I have
considered the evidence as a whole and have come to the conclusion
that there is overwhelming and credible evidence against
the accused
It is true that the murder charge is based on the evidence of a
single witness In our law a court can convict an accused
of any
offence alleged against him in the charge on the single evidence of
any competent and credible with. The exceptions being
per]ury and
treason (See section 238 of the Criminal Procedure and Evidence Act
1981).

IN the
present case P W 4 is the single witness who saw what happened Her
evidence was criticised on the ground that she must have
been drunk
and was not a condition to observe the events properly. She admitted
that during the day she had been drinking beer
and was drunk She went
to bed and slept When

8

'Masechaba
woke her up she had sobered up and saw well what happened She says
that after the accused had felled P.W 1 he chased
the deceased until
they disappeared at the corner of a house She did not see what
happened on the other side of that house However
after some time the
accused emerged from near that corner He was kicking something black
which eventually turned out to be the
deceased's hat. It is common
cause that later that same evening the deceased was found dead on the
other side of that house where
the accused had disappeared with him
It seems to me that this is a case depending on circumstantial
evidence

In R. v.
Blom, 1939 A.D 188 at pp. 202,203 Watermeyer, J A referred to two
cardinal rules of logic which governed the use of circumstantial

evidence in a criminal trial

"(1) The inference sought to be drawn must be consistent with
all the proved facts If it is not, then the inference cannot
be drawn

2. The
   proved facts should be such that they exclude every reasonable
   inference from them save the one to be drawn If they do not
   exclude
   other reasonable inferences, then there must be a doubt whether the
   inference

   
   

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sought to be drawn is correct "

In the
present case the only reasonable inference to be drawn from the
proved facts is that when the accused finally caught up with
the
deceased when they disappeared near the corner of that house he
severally assaulted him and murdered him. The other inference
is that
the deceased might have been killed by some other person or persons
when he came there but that is not a reasonable inference
when the
facts of this case are taken into account

It was
put to P W 4 by the defence counsel that the accused will admit that
he chased the deceased but for only a short distance.
In other words
it is common cause that the accused did chase the deceased In his
evidence in the witness box the accused came up
with an entirely
different story that he did not chase the deceased at all His story
cannot be true because his counsel could not
put to the Crown
witnesses a case which was not in accordance with his instructions In
any case we have a Crown witness who saw
when the accused chased the
deceased

The
accused was seen kicking the hat of the deceased until he actually
came to P W 1 One wonders why the accused could do such a
thing if he
had not just felled the deceased and was showing his contemptuous
attitude towards his victim, he was

10

proud of
what he had just done to his victim

The
injuries found on the deceased were identical with those found on P W
1 The skulls, jawe and faces of the victims of the assault
were
smashed to smithereens This indicates that the weapon used on both
victims was the same. It was described as a pipe of about
one metre
in length and whose hole was filled with cement\concrete It was a
very dangerous weapon

The
accused lied that he used an ordinary stick which broke during the
fight He said he left those two pieces of the stick at the
scene of
the crime No such pieces were found at the scene of the crime,

I formed
the opinion that the Crown has proved the case of murder beyond any
reasonable doubt The accused had the requisite intention
for murder
in that he foresaw the possibility that his actions might cause the
death of the deceased but he was reckless as to
whether death
occurred or not I say he foresaw the possibility of death because he
knew very well that the weapon he used was very
heavy and that he
would smash the skulls of his victims

With
regard to the second charge I have absolutely no doubt that the
accused intended to kill P W 1 The weapon used was a

11

murderous
one, the parts of the body which were smashed – the head, face
and jaws - are delicate ones and it is proof that
he intended to
kill. When the accused returned from chasing the deceased he found P
W 1 still lying prostrate on the ground He
again mercilessly
belaboured him with that dangerous weapon until one Mabotse came and
pleaded with him that once a person has
fallen down he should not be
belaboured The accused says that Mabotse uttered those words because
he (accused) was forcing P W.1
to produce the knife with which he had
stabbed him. It was unreasonable of him to belabour a person who was
already unable to rise

I formed
the opinion that the Crown has proved beyond a reasonable doubt that
the accused had the intention to kill P W 1

Judgement:

Count I,-
Guilty of murder as charged.

Count
II.- Guilty of attempted murder

as charged.

My
Assessors agree

J.L
KHEOLA

JUDGE

15th
February, 1994

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Extenuating
Circumstances

One of
the factors I took in consideration in determining whether there were
extenuating circumstances or not was intoxication In
the present case
it was common cause that the accused and his victims had been
drinking beer for a greater part of that day and
that they were drunk
However the drunkenness was not such that they did not know what they
were doing or unaware of what was happening
around them That
intoxication is an extenuating circumstance was emphazised in the
case of S. v. Ndhlovi (2) 1965 (4) S.A. 692
(A.D).

I have
also taken into consideration that this was a case of dolus entualis
See S v. Sigwahla, 1967 (4) S A 566 (A.D ) at p.571

I found
that there are extenuating circumstances

Sentence
Count I: Eleven (11) years' Imprisonment

Count II:
Four (4) years' Imprisonment. Sentences shall run concurrently.

My
Assessors agree.

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J.L
KHEOLA

JUDGE

15th
February, 1994

For Crown
Miss Nku

For
Accused ' Mr. Putsoane (Legal Aid)