CRI/T/45/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MOTLALEPULA
LILLANE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 14th day of August, 1984

The
accused is before me on a charge of murdering one Selebalo Thebane,
it being alleged that on or about the 19th February, 1983
and at or
near Ha Sebatli in the Distict of Mafeteng, he unlawfully and
intentionally killed the deceased.

Six (6)
witnesses were called to testify in support of the Crown case.
Although no witnesses testified on behalf of the defence,
the accused
himself gave evidence on oath.

The court
heard the evidence of PW.1, 'Manthabiseng Tefo, who told the court
that at about 12 noon on the 19th February, 1983, the
deceased and
two other men from neighbouring villages called at her home. They
were visiting her husband who asked PW.1 to slaughter
a fowl for
them. PW.1 slaughtered the fowl and prepared it for a meal which she
served to the visitors.

According
to PW.1, she had about a quarter of a 20 liters tin of beer commonly
known as "sekumukumu" which she also served
to the
visitors. Whilst she, her husband and the three visitors were eating
and drinking, the accused came in and on their invitation,
joined
them at table, i.e. he took part in the eating of the chicken and
drinking of the beer. After eating, the accused suddenly
took two
sticks

2

one
belonging to the deceased and another to one of the other two
visitors and went out with them. The deceased then followed the

accused out asking where he was. taking the sticks to. Whilst they
were outside, PW.1 heard the deceased saying to the accused
:
"Motlalepula, you are silly for taking away our sticks."
She then heard the accused saying to the deceased. "Do
not say I
am silly, I shall kick you till you excrete". According to
PW.1,. it was clear that the accused and the deceased
were
quarrelling outside over the sticks and her husband went out to
intervene.

Shortly
thereafter, the accused, the deceased and her husband returned into
the house. The deceased was then carrying the two sticks
which he
placed next to him and the other visitors. After a while, the
deceased said as there was no more beer in PW.1's house,
he was going
to find it at the home of one 'Masekharume in the village and he
left. Soon after, the accused also left.

From her
house, PW.1 could see the accused walking fast towards his house. He
actually entered into the house. PW.1 did not, however,
notice the
accused leaving his home but a short time thereafter she heard some
noise from the direction of 'Masekharume's. It was
the noise of
someone saying: " Motlalepula what are you doing to Selebalo".
She immediately left for Masekharume's house.
On the way,she met the
accused who was walking from the direction of 'Masekharume's house
towards the mountain. She did not notice
any injuries on him. The
accused was then carrying a blanket on one of his shoulders. As PW.1
passed the accused on her way to
'Masekharume's, she heard him saying
: "I told you that I would kick you till you excrete". On
arrival at 'Masekharume's,
PW.1 found the deceased lying dead outside
the house.

Later on
PW.1 noticed the accused returning from the mountain and going
towards his house. The village men ran after him. He was
apprehended
and brought back to the scene of crime. It was only then that she
noticed that the accused had sustained a bleeding
wound on the

3

forehead.

The
accused was tied up and spent the night outside the home of
'Masekharume together with the body of the deceased. On the following

day, the police arrived and subsequently took away the body of the
deceased. The accused was arrested and also taken away by the
police.

Although
he conceded that on the day in question he came to P.W.1's home and
found her, her husband and their visitors at meal,
the accused denied
that he joined them on the chicken. According to him, he only joined
them in the drinking of the beer. He denied
that he ever took the two
sticks belonging to the deceased and one of the visitors. Likewise
the accused denied that there was
any quarrel between him and the
deceased outside PW.1's Tiouse. According to him, he peacefully
enjoyed the beer in PW.1's house
until the deceased left saying as
there was no more beer at the home of PW.1, he was going to find it
at 'Masekharume's. Shortly
thereafter, the accused also left for his
house. He was then drunk. On arrival at his house, the accused
started repairing shoes.
While he was repairing shoes, the deceased
appeared from 'Masekharume's home and called him for a talk. After
deceased had insisted
and called him on about three (3) occasions,
the accused eventually went to him at the home of 'Masekharume. As he
believed it
was going to be a short talk, the accused carried with
him a cobbler's pin, wax and a string which he "had been using
to repair
shoes. He, however, left the shoe that he had been working
on. I shall return to his evidence.

Although
the accused denied the story of PW.1 that after he had come to her
house he joined her, her husband and their visitors
not only on the
drinks but on the chicken as well, the evidence of PW.1 that he did
was corroborated by her husband PW.2, Tseliso
Tefo, who told the
court that he was present when the accused came to his house on the
day in question. After he had come to the
house, the accused joined
them at table where there was

4

chicken
and beer. When they had finished eating the chicken and drinking the
beer, the accused then took the sticks of the deceased
and one of the
other two visitors. According to PW.2, the accused was immediately
followed out not only by the deceased but by
one of the other two
visitors whose sticks had been taken away. PW.2 further confirmed
PW.1's evidence that after the deceased
had followed the accused out,
there was a quarrel between the accused and the deceased when he
(PW.2) had to go out and intervene.
The accused then gave the sticks
back to their owners after which they all returned into the house.

As they
returned into the house, PW.2 heard the accused saying to the
deceased: "When I play with you, you insult me, I can
kick you
till you excrete," PW.2 had not followed what the deceased had
said prior to the accused uttering those words. After
they had
returned into the house, the accused wanted to go to the deceased and
fight him but PW.2 reprimanded him against it. It
was then that the
deceased said the accused was clearly after him and it were better
that he left. The deceased accordingly went
out of the house
obviously to avoid the accused. Shortly, thereafter, the accused also
went out of the house. PW.2 did not bother
to observe where the
deceased and the accused went to when they left his house. However, a
short while after the accused had left
the house, PW.2 heard a
scream. He immediately went out of the house and heard that the
scream was coming from the direction of
'Masekharume's house. He
hurried there and on arrival found the deceased lying on his back
outside the house. He was already dead.

At the
same time PW.2 noticed the accused walking fast in the direction
towards a nearby mountain. As the accused was some distance
away from
him, PW.2 could not notice if he had sustained any injuries. Later
on, the accused returned from the mountain and went
to his house.
PW.2 and about 20 village men went to accused's house. The accused,
however, got out and ran away. He was chased
and

5

finally
apprehended. As he was following behind, PW.2 was not among the first
people who actually caught up with and apprehended
the accused, He
was not in a position, therefore, to know if when he was apprehended
the accused was assaulted by his pursuers.
Nevertheless, PW.2 noticed
that as he was brought back to where the deceased was, the accused
had sustained a "bleeding wound
on the head.

I must
say I find it highly improbable that when he came to the house of
PW.1, and was invited to Join her, her husband and the
visitors at
table the accused took part only in the drinking of the beer and not
the eating of the chicken. He himself could not
give the reason why
he could not join them on the chicken as well. The fact that as soon
as he came to the people who were at meal
in the home of PW.1 and
PW.2 the accused was admittedly invited to join them at table is, in
ray view, an indication that they
had no ill feelings against the
accused. That being so, I find no convincing reason why PW.1 and PW.2
should falsely testify against
the accused that he took part in the
eating of the chicken and took away the sticks as a result of which a
quarrel broke between
the deceased and the accused himself. I am
inclined to accept as the truth the story of PW.1 confirmed by that
of PW.2 and reject
as false that of the accused.

The
evidence of PW.3, 'Maletete Sebatli, was that on 19th February, 1983
she was visiting the home of one Kabeli whose house was
adjacent to
the houses of 'Masekharume and PW.2, While she was at Kabeli's, PW.3
also noticed the accused passing in front of the
house towards his
home. He was walking fast and she heard him saying "These boys
from Bereng's village are talking shit."

It is
significant to mention that the deceased came from Bereng's village.
From what she heard him saying, PW.3 presumed that the
accused was
angry and she watched what was going to take place. She, therefore,
saw the accused entering into his house but shortly
got out. As he
got out of the house, the accused was holding a screwdriver and
something of which she could only see a wooden handle.

6

The
accused hurriedly walked in the direction towards 'Masekharume's
house which was about 40 paces (indicated) away from his home.
As the
accused approached 'Masekharume's place, PW.3 could see the deceased
standing outside the house. The accused went straight
to the deceased
and hit him a blow on the head. When the accused delivered a second
blow, the deceased warded it off and hit him
a blow on the head with
his stick. However, after hitting the accused a blow on the head with
the stick, the deceased himself stuggered
and fell to the ground.
While the deceased was still on the ground, the accused stabbed him
once on the back. When she saw that
PW.3 raised an alarm as a result
of which many people, including 'Masekharume, came to the scene. PW.3
went to assist the deceased
while other people tried to get hold of
the accused.

As she
was assisting the deceased to a sitting position, PW.3 noticed a
cobbler's pin which was implanted on the back of the deceased.
Its
wooden handle had broken and dropped to the ground. The cobbler's pin
had been implanted so deep on the back of the deceased
that PW.3 had
to use force to pull it out. After she had pulled out the pin a lot
of blood came out from where it had been implanted
on the back of the
deceased. The deceased then belched and passed away. Next to where
the deceased had fallen, PW.3 noticed a screwdriver.
She took
possession of both the screwdriver and the cobbler's pin. The accused
who was struggling to free himself from the people
who were trying to
apprehend him then said to her "You 'Maletere, I shall kill you
for taking away my weapons." PW.3
then ran to the chief's place
with the screwdriver and the cobbler's pin. She reported to
chieftainess 'Malerato Shakhane and handed
over both the screwdriver
and the cobbler's pin. She then accompanied the chieftainess back to
where she had left the deceased.
On arrival they found the accused
already apprehended. His hands and feet were tied up. On the
following day, the police arrived
and examined the body of the
deceased. It was then that PW.3 noticed that the deceased had
sustained a wound behind the ear, on
the head, on the chest and on
the back,

7

It may be
mentioned right away that PW.3's evidence that the accused had
threatened to kill her was denied by the accused nor could
it be
confirmed by Liphapang Mapepesa (PW.4), one of the people who were
with PW.3 at the time. Likewise her evidence that, apart
from the
injuries on his chest and back, the deceased had sustained other
injuries behind the ear and on the head could not be
supported by the
evidence of Tefo Posholi (PW.6), the police officer who actually
examined the body of the deceased. It may safely
be inferred,
therefore, that in all probabilities, PW.3 was mistaken on these
points.

The
evidence of PW.4, Liphapang Mapepesa, was that on the day in question
he was sitting in the shade under the trees when he noticed
the
accused hurriedly passing next to Kabeli's house. Accused got into
his house and then went out. He walked in the direction
towards
'Masekharume's place. As the accused walked towards 'Masekharume's,
PW.4 heard him saying "I shall kick him till he
excretes"
PW.4 wondered whom the accused was going to kick till he excreted and
so watched him. According to him, PW.4 did
not see the deceased
standing outside the house of 'Masekharume at that time. When he came
to 'Masekharume's place, accused entered
into the house. But before
he entered into the house, PW.4 heard him calling out "Hey you
man, "I shall kick you till
you excrete". Shortly after the
accused had entered into 'Masekharume's house, the deceased came out.
He was physically struggling
with the accused and saying "leave
me alone". As the deceased and the accused struggled out of
'Masekharume's house,
the accused was delivering blows on the
deceased. He believed the accused was hitting the deceased with
fists. The deceased then
delivered a blow on the accused's forehead
with a stick. However, after hitting the accused with the stick, the
deceased himself
fell to the ground. He fell on his face. The accused
then went to the deceased and thrashed what PW.4 thought to be a
knife on
the back of his shoulders. PW.4 then called out : "Hey,
are you stabbing that person".

8

He rushed
to the scene. According to PW.4,after stabbing the deceased on the
back, the accused walked away in the direction towards
his home. PW.4
confirmed the evidence of PW.3 that at the time the accused left she
(PW.3) was attending to the deceased. PW.4
then went to help PW.3 to
assist the deceased to a sitting position. While they were assisting
the deceased, PW.4 also noticed
that a cobbler's pin was stuck on the
shoulders. He confirmed that it was removed by PW.3. PW.4 also
confirmed that a screwdriver
was found next to where the deceased had
fallen. PW.3 took possession of both the screwdriver and the
cobbler's pin and ran towards
the chief's place. However, PW.4 did
not, at that time, hear the accused threatening to kill PW.3,
According to PW.4, while they
were attending to the deceased, accused
returned to the scene. He was then putting on a blanket and armed
with two sticks. The
accused then said: "Clear away so that I
can finish him". PW.4 reprimanded the accused and asked him how
he could finish
the deceased who was already dead. When he realised
that the deceased was in fact already dead, the accused left. Shortly
after,
PW.4 also left and went to collect fodder for his house. Is it
really possible that PW.4 could have been so insensi­tive as
to
go for fodder immediately after he had seen a person being stabbed to
death just in front of his eyes?

I must
say PW.4 did not impress me as a very reliable witness. He, himself
admitted that during the adjournment for lunch he took
some beer.
That clearly affected him for he was often evasive in his reply to
some of the questions that were put to him before
this Court. I am
not prepared, therefore, to accept his evidence safe where it has
been corroborated by the evidence of more reliable
witnesses.

The
evidence of PW.5, 'Masekharume Mosakeng, was that on the 19th
February, 1983, there was beer selling at her home. In the early

afternoon of that day, the deceased came to her house. At the time
the deceased arrived, she was being called outside for a snuff
by one
'Mabafokeng. As there were no customers at the time, PW.5 went out to
'Mabafokeng. According to PW.5, as she went out the
deceased was
going into the house. She, however, passed the deceased

9

at the
door and went to 'Mabafokeng with whom she chatted and enjoyed the
snuff.

As she
sat outside with 'Mabafokeng, PW.5 was facing away from the door of
her house and could not tell if the deceased actually
entered into
her house. Similarly she did not see the accused entering into her
house. Although her hearing was still good PW.5
neither heard the
accused calling out from outside her house nor heard the deceased and
the accused struggling out of the house.
However, while she and
'Mabafokeng were sitting outside the house, PW.5 heard PW.3 raising
an alarm. She turned round and noticed
the deceased fallen down on
the forecourt of her house. The accused was walking around while PW.3
was attending to the deceased,

PW.5 and
'Mabafokeng rushed to help PW.3. She (PW.5) brought some water that
was poured on the deceased. It was all useless for
the deceased was
already dead, PW.5 confirmed the evidence of PW.3 and PW.4 that
whilst they were attending to the deceased, a
cobbler's pin was found
implanted on his back. It was pulled out by PW.3. At the time, PW.5
did not notice any injuries on the
accused. She, however, noticed a
wound on his forehead after the accused had been apprehended and
brought back to where the deceased
was lying dead.

I find
some difficulty with the evidence of PW.5. She was admittedly selling
beer on the day in question. When the deceased came
to her house, she
should have suspected that he was her potential customer. Instead of
waiting to serve him, PW.5, however, went
and sat with 'Mabafokeng
outside the house. This is not what a person who is selling beer
would normally do. One would expect PW.5
to have waited a little to
find out if the deceased wanted to buy some beer so that she could
serve him. She did not do so.

Be that
as it may, I shall now return to the evidence of the accused.
According to him, on entering the house of 'Masekharume, the
accused
found the deceased standing alone behind the door so that after
entering into the house, the deceased was towards the door
whilst he
was

10

more
inside the house. The deceased then asked him what he had said to
PW.3. Accused replied that he had said nothing to her. Without

further ado, the deceased hit him a blow on the forehead with a
stick. The accused then moved backward to get out of the house
but
the deceased caught hold of him by the skipper. He struggled to go
out but the accused again hit him another blow on the left
side of
the forehead.

Now, if
when he hit the accused the first blow the deceased was more towards
the door and the accused more inside the house I fail
to see how the
accused could have moved backward to get out of the house. Again, if
the first and the second blows delivered by
the deceased with his
stick landed on the forehead of the accused it is clear that the two
men were facing each other. The accused
could not, in the
circumstances, have moved backwards to get out of the house.

In any
event, the accused told the court that after the deceased had struck
him the second blow, he managed to escape and run out
of the house.
He was immediately followed out by the deceased and their physical
struggle continued outside the house,, In the
course of the struggle,
the deceased delivered several blows which he (accused) warded off
with his bare hands and arms.

It is
worth noting that the accused himself conceded that he was later
referred to a medical doctor for treatment. According to
the accused
the medical doctor told him that he would treat only one of his
wounds. That, in my view, is inconceivable of a medical
doctor and I
have no hesitation in rejecting it right away. The truth is that the
accused had sustained one wound on the forehead
as described by the
crown witnesses. That explains why the doctor had to treat only one
wound on the accused.

Be that
as it may, according to the accused, after he had been hit the blow
on the head he stabbed the deceased once on the back
with the
cobbler's pin. The accused contended,

11

therefore,
that he stabbed the deceased in self-defence.

In the
first place, I fail to understand what the deceased could have been
doing in the house of 'Masekharume at the time the accused
says he
found him there. There is evidence which I accept that the deceased
left the house of PW.1 and 2 in order to avoid the
accused who was
clearly bend on picking up a fight with him over the question of the
sticks. I also accept the evidence that there
was beer selling at the
home of PW.5 on that day. The probabilities are high, therefore, that
when he went to PW.5's house the
deceased wanted to buy himself some
beer. But if when he came to her house PW.5 went out without serving
him, I see no reason why
the deceased should have remained in the
house. He probably went out and waited for PW.5 to return into the
house so that she could
serve him. PW.3 may well have been testifying
to the truth, therefore, when she said at the time the accused
arrived at PW.5's
house the deceased was standing outside. If that
were accepted as the correct position there would be no doubt that
when the accused
attacked the deceased in the manner described by
PW.3 the attack was unprovoked and the question of self defence could
not arise.
If on the other hand the evidence of accused confirmed by
that of PW.4 that the fight had started inside the house of PW.5 was
correct the evidence of PW.3 and PW.4 himself is that at the time the
accused stabbed the deceased on the back, the latter had fallen
and
was lying prostrate on the ground. Taking into account the position
in which the cobbler's pin was found inplanted on the back
of the
deceased, PW.3 4 and 5 may be telling the truth on this point. If at
the time the accused stabbed him the deceased had fallen,
the accused
was faced with no danger that would have justified him to act in self
defence.

The
evidence of PW.6 Tefo Posholi is that he has now retired from the
police force. However, on 19th February 1983 he was still
in the
police force and stationed at Matelile

12

police
post when he received a report following which he proceeded to Ha
Sebatli. He found a dead body which was identified to him
as that of
the deceased. He examined the body and found that it had sustained a
stab wound on the chest and another on the back.
The screwdriver and
the cobbler's pin before Court were handed to him. They were claimed
by the accused as his property. He took
possession of the two weapons
and kept them in the police custody until he handed them in as
exhibits at the proceedings of Preparatory
Examination. He formerly
handed them in as exhibits in this trial and they were respectively
marked exhibits 1 and 2. The accused
whom he found already
apprehended at the scene of crime was also handed to him. He, in
turn, handed the accused and the body of
the deceased to Mafeteng
police who were, however, not called to testify before this Court.
The medical officer who had performed
the post mortem examination was
also not called as a witness.

Although
the medical officer who performed the post mortem examination was not
called to testify on the cause of death in this trial,
there was, in
my view, ample evidence not really disputed by the defence, that the
deceased had died as a result of the injury
inflicted upon him by the
accused. As has been indicated the question of self-defence raised by
the accused had no evidential support
and could not stand.

There was
also evidence that before he assaulted the deceased, the accused had
been drinking beer and might well have been intoxicated.
However, on
the evidence his intoxication could not have been such as to render
the accused incapable of knowing what he was doing.

There is
not the slightest doubt in my mind therefore, that when he stabbed
the deceased on the upper portion of his body with the
lethal weapon
such as exhibit 2, the accused was aware that his act was likely to
result in death. He, nonetheless, acted regardless
of whether or not
death occurred. That granted, I have no alternative but to come to
the conclusion that in assaulting the deceased,
as he did,

13

the
accused had, to say the least, the legal intention to kill. I
accordingly find him guilty of murder as charged.

My
assessors agree.

JUDGE.

14th
August, 1984.

EXTENUATING
CIRCUMSTANCES

Having
convicted the accused of murder, it now remains for the court to
determine whether or not there were any factors tending
to reduce the
moral blameworthiness of his act.

On the
evidence, it was common cause that prior to inflicting the fatal
injury on the deceased, the accused had been drinking beer
commonly
known as "Sekumukumu". Although it was found as a fact that
the accused was consequently not so drunk as to
be unable to know
what he was doing or form the intention to kill it was not really
disputed that he was somewhat intoxicated by
the beer.

As
Holmes, J.A. once put it in S. v. Ndlovu (2), 1965(4) S.A. 692 at p.
695 -6:

"Intoxication is one of humanity's age-old frailties, which may,
depending on the circumstances, reduce the moral blameworthiness
of a
crime, and may even evoke a touch of compassion through the
perceptive understanding that man, seeking solace or pleasure
in
liquor, may easily over-indulge and thereby do the thing which sober
he would not do. On the other hand intoxication may, again
depending
on the circumstances, aggravate the aspect of blameworthiness ....
as, for example, when a man deliberately fortified
himself with
liquor

14

to enable him insensitively to carry out a fell design. In the
result, in seeking a basic principle in regard to intoxication and

extenuation in murder cases, it is neither necessary nor desirable to
say more than that the court has a discretion, to be exercised

judicially upon a consideration of the facts of each case, and in
essence one is weighing the frailties of the individual with
the evil
of his deed....."

There was
no evidence in the present case that the accused had deliberately
taken beer with the purpose of fortifying himself in
order to
insensitively kill the deceased. Rather than regarding it as an
aggravating aspect I am prepared to regard the accused's
intoxication
as a factor tending to reduce the moral blameworthiness of his crime.

I come to
the conclusion, therefore, that extenuating circumstances do exist in
this case and the proper verdict should be that
of guilty of murder
with extenuating circumstances.

My
assessors agree.

SENTENCE

10 years'
imprisonment, to operate with effect from the 20th February, 1983 the
date from which the accused was kept in custody.

JUDGE.

15th
August, 1984.

For the
Crown : Mr. Peete

For the
Defence : Mr. Moiloa.