CRI/T/11/84

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX
Plaintiff

v

TSITSO
LEPELI Defendant

JUDGMENT

Delivered
by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 21st day of
December 1934

The
accused before me Tsitso Lepeli, who is a member of the Lesotho
Mounted Police attached to the Traffic Branch, is indicted upon
a
charge of murdering Nteboheleng Tsita on or about 1st October 1983 at
or near Stadium area in Maseru town.

The
accused pleaded not guilty.

It is
common cause that Saturday 1st October 1983 was a busy day in the
Kingdom's calendar. It was firstly "Graduation Day"
at the
National University of Lesotho at Roma starting from 9 a.m. and it
was secondly the semi finals between national soccer
teams starting
from 2 p.m. at Maseru. His Majesty the King, the Rt. Hon. the Prime
Minister and other V.I.P.'s were expected to
attend both functions.
No doubt the personnel of the traffic department were somewhat over
stretched.

The
accused was given the task of standing with a colleague at the robot
road intersection along Leabua Jonathan Highway that leads
to the
stadium (a T junction) to stop motorists using the road His Majesty
and the Prime Minister were expected to pass and diverting
them to
another. The accused was given a "commando" type gun
(specimen Exhibit A produced) and two bullets. Lieutenant
Malephane
issued him with this weapon without any

2

specific
instructions as when to use it. The officer testified he expected
other ranks to have "common sense".

Motorists
converging on the stadium were unaware of these traffic arrangements.
Many of them coming from central Maseru drove right
up to the robot
(it was not in fact in working order that day) only to discover that
they could not take their left into stadium
road. Those motorists
intending to attend the match coming from the opposite direction,
i.e. from TY direction, were told at the
junction where the accused
and his colleague stood to drive straight ahead to Kentucky Fried
Chicken corner and turn right to get
to the stadium through Motsamai
road. Those reaching the T junction from the Maseru side were told by
the accused and his colleague
that they could do a U turn and drive
back to the Kentucky Fried Chicken corner to get to the stadium as
aforesaid. It was common
cause there was noise and confusion.

Justice
Bambatha Tsita (P.W.I), a former police officer and public
prosecutor, was the President of Lioli Football Club one of the
teams
that reached the semi finals. The kick off time was scheduled for 2
p.m. He had been with the team preparing for the event
until shortly
before 1 p.m. and went home to fetch his family. It is customary for
the Presidents of the clubs to lead their teams
into the football
arena in a sort of a parade shortly before the kick off. Mr. Tsita,
accompanied by his wife, who was next to
him in his car, and four
children in the back, discovered, soon after passing Kentucky Fried
Chicken corner that traffic was not
smooth and there was congestion
at the T junction. Mr. Tsita felt he was getting pressed for time. It
was past 1 p.m. He did not
queue behind the vehicle in front of him
but swerved to his left in such a way that two of its wheels were on
the dirt verge and
the other

3

two on
the tarmac. He was hooting and squeezing between cars appealing to
other motorists to give him priority as he careered to
the T
junction.

What
happened at the T junction was not common cause except for the fact
that the accused fired one bullet from the "commando"
gun
issued to him in the direction of Tsita's car after the latter drove
up stadium road for a distance of between 22 and 30 feet
(estimated)
which bullet hit Tsita's nine year old daughter Nteboheleng in the
face as she (with other children) was kneeling on
the seat looking
out through the rear windscreen, hopelessly damaging the brain, from
which injury the child died an hour or so
after her admission to
Queen Elizabeth II Hospital.

The
versions I heard of the incident vary. The full details of the
divergence of the testamonies need not be recounted in this Judgment

for it is available in the record and it would suffice if I briefly
outline the evidence of each eye witness:-

Mr.
Justice Tsita (P.W.1):-

He says
he knew the accused well and vice versa. The accused knew he was the
President of Lioli F.C. He thought that accused noticed
his
manoeuvres to get to the front when he was by-passing other vehicles.
From a distance of 15 feet (pointed) he stopped and told
accused
"Brother allow me to pass to get to the stadium". Tsita
says the accused heard him and replied "Yah".
Tsita
understood this to mean "okay" and started driving up the
uneven (though tarmaced) road to the stadium, when he
heard a bang.,
looked back, and saw that his rear windscreen was shattered to
smithereens. After a few seconds he realised his
daughter was in a
pool of blood shot through the head.

Mrs.
'Makhosi Tsita (P.W.4):-

Her
evidence is almost the same as Mr. Tsita's but she is

4

not as
emphatic as her husband that the accused did say "Yah" or
indicate unequivocally that they can proceed. She thought
and
believed that accused did give permission. She protested that even if
she and her husband misunderstood the traffic officer
"what
right has he got to shoot?"

Mr.
Tsubane James Phothane (P.W.2):-

He says
he was driving his car to the stadium coming from the direction of
Sebaboleng and TY. At the T junction there was some traffic

congestion. There was one vehicle in front of him. He wanted to turn
to the right to go up the road leading to the stadium to watch
the
match. He saw the accused preventing traffic from taking this road
and the witness says he indicated to the policeman that
he will not
go up but intended to park anywhere in the vicinity and walk up to
the stadium. He says that at that moment he saw
a vehicle driven by a
person, whom he discovered a few moments later to be Tsita (P.W.1),
trying to communicate with the accused
who was directing a heavy
stream of traffic away from entering the stadium road. He did not
hear what words were exchanged between
Tsita and accused because
there was much noise, but he did see the accused gesticulate. He
could not say whether the movements
meant he had given him permission
to go up or to make a U turn. He saw Tsita drive up. He then saw the
accused pull up his gun,
point it at Tsita's car, and shoot.

Tseliso
Kuenane (P.W.3):-

He
testifies that he was coming from the direction of TY and saw Tsita
driving a car at the junction from the opposite side and
two
policemen. He stopped and he heard Tsita ask accused's permission to
proceed up the road to enable him to lead his team into
the stadium
and heard accused says clearly "Ee", yes in Sesotho which
meant Tsita could go. The

5

witness
himself apparently was told, or it was indicated to him, that he
should proceed to Kentucky Fried Chicken corner. Accused
and Tsita
spoke to each other from close range and this witness says
emphatically that after permission was granted, the accused
pulled
his gun and shot at Tsita's car from the rear.

Thabiso
Makhooa (P.W.5):-

He says
he was driving from TY road towards town. He was not on his way to
attend the match. At the T junction he saw the van of
Tsubane James
Phothane (P.W.2) and Tsita. The traffic officer, the accused, was
next to Phothane's car, which was stationary. Tsita's
car drove right
up to the accused and came to a dead halt. He saw accused and Tsita
talking. The witness observed no gestures.
He saw Tsita drive up
stadium road. The accused turned, lifted his gun, and fired.

The
accused testifies that his instructions were to stop any vehicle
except His Majesty's and the Prime Minister's from going up
stadium
road from 11.30 a.m. onwards and he and a colleague were instructing
drivers of all traffic coming from either direction
to proceed to the
stadium via Motsamai Road at the Kentucky Fried Chicken corner. He
saw a car coming fast from the town side and
stop at the
intersection. This was driven by Tsita. Tsita wanted to go up stadium
road and he went up to him and told him that
his instructions were to
prevent anyone from going up except His Majesty and the Prime
Minister. Having said this accused says
he turned round to attend to
the heavy traffic. He heard Tsita say: "Foestek" (an
Afrikaans word for dog) "I am
the President of Lioli Football
Club". Accused says he knew Tsita by sight but did not know that
he was a former police officer
or a public prosecutor or the
President of Lioli Football Club and that in any event his orders
were to

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make no
exceptions. Tsita drove up without permission. He had to stop him. He
lifted his "commando" gun and fired one
bullet aiming for
the tyres. That vehicle stopped and Tsita came out in a fighting mood
and said he killed his child. He did not
see the child and he did not
believe Tsita but learned of the death later. He continued
controlling traffic. He did not intend
to kill anyone but he shot at
the wheels in an attempt to stop Tsita as he was ordered to do by his
superior officer.

Mapesela
Rantiti (D.W.1):-

He is
accused's colleague and was on duty with him at the time. He says he
was 5 - 8 feet (pointed) from accused who held a gun.
Tsita drove up
to accused. Accused said "The road is closed". Tsita
replied "I am the President of Lioli".
Accused did not
respond to this and walked away and continued with his job. Tsita
then drove his car towards accused compelling
him to retreat
backwards and drove up the road. The witness then heard a shot and
later realised a child in Tsita's car was hurt.

Tsiame
Letsie (D.W.2):-

He is a
Warrant Officer in the Lesotho Paramilitary Force but was off duty on
the day in question and not in uniform. He was on
his way to the
stadium travelling in a friend's car. They were coming from Maseru.
His friend's vehicle was the first at the T
junction from this
direction and before he had time to ask the accused what was wrong he
saw Tsita dash past him from behind, He
halted his vehicle just
before reaching accused. The witness heard the accused ordering Tsita
not to proceed. He heard Tsita reply
"Man, you are wasting my
time, I am in a hurry to get my team on the football ground".
The witness adds that accused
repeated "The road is closed"
and gesticulated accordingly with his arm, Tsita however did not

7

heed and
drove up almost colliding with accused who had to jump. Accused
pulled his gun and shot from a distance of 22 paces (pointed).

We can
divide the witnesses' evidence into four categories:-

1. Tsita
   (and to some extent his wife) and Tseliso Kuenane who say accused
   gave permission to Tsita to proceed, and after having
   done so, he
   aimed the gun and shot at the vehicle.

   
   

2. Tsubane
   James Phothane who says he saw Tsita and accused speaking to each
   other (but did not hear the conversation) and the accused

   gesticulate but could not say if this meant Tsita could go ahead up
   stadium road or turn back to Motsamai road.

   
   

3. Thabiso
   Makhooa who says he saw Tsita talking to accused but did not hear
   the conversation. He saw no gestures by accused giving
   an indication
   one way or the other.

   
   

4. The
   accused, Mapesela Rantiti and Tsiame Letsie who testify that Tsita
   was definitely forbidden from proceeding up the stadium
   road and he
   disobeyed the order.

   
   

We find
it difficult to believe that the accused first gave permission to
Tsita to go and then immediately changed his mind, aimed
his gun and
shot. We have no evidence of any motive on the part of the accused to
harm Tsita and/or his family. The accused who
was on duty since 11.30
a.m. at the T junction, had no idea about the identity of the
motorists that were going to come to the
junction and could not have
had any idea that Tsita and his family would have been one of those
motorists. We do not accept the
proposition that in a split second
the accused changed his colour from a law enforcement officer
(somewhat harassed by people in
a hurry) to a callous murderer.

The only
reasonable inference that we can draw is either that Tsita
misunderstood what the accused said (Ee for yes and e-e for
no have
similar sounds in Sesotho) or alternatively

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that
Tsita understood him perfectly, but nonetheless, with all the
confusion and the noise, he decided to take a chance and slip
up the
road. Whether it was one or the other the killing cannot be
justifiable either in terms of s.42 of the Criminal Procedure
and
Evidence Act 1981 or s.7 of the Police Order 1971 (Vol. XVI Laws of
Lesotho p. 97) or on the ground of obedience to lawful
orders, or on
the ground of necessity (for which see Burchell and Hunt S.A.
Criminal Law Vol.I 1970 Ed. p.296) for the officer
was not in any
personal danger and the King and the Prime Minister were no where
near the scene for accused to legitimately apprehend
any threat to
their safety or security in Tsita's act of disobedience.

I do not
think that the accused intended to kill the child. It may well be he
really thought he could hit at the lower part and
deflate a tyre but
the fact of the matter is that his act in shooting, taking all the
circumstances into consideration, was grossly
negligent and reckless
and amounts to culpable homicide.

We find
him guilty accordingly. My assessors agree.

CHIEF
JUSTICE

21st
December 1984

For
Defendant : Mr. Addy

For Crown
: Mr. Peete