CRI/T/25/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX
Plaintiff

v.

TUMAOLE
KHUMALO MOKEMANE Defendant

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 28th day of
November 1985

The
accused before me is indicted on a charge of murdering Morapeli
Thejana on or about the 18th December 1984 at or near Ha Sekoati
in
the District of Mohale's Hoek.

It is
common cause that at about 11 p.m. on the night of 18th December
1984, 'Matokelo Mokemane, the wife of the accused, woke up
her
neighbour Tsabo Ntsebeng (P.W.1) and told him something. What she
told him is probably inadmissible.

Ntsebeng
went to the accused's home and called upon him to open the door. He
tried to get in but some object was behind the door
blocking it. The
house was in darkness. He asked accused's wife to fetch a candle
which she did from the house of another neighbour
'Masekhanya Lipholo
(P.W.2). 'Masekhanya followed her to the accused's house. Ntsebeng
lit the candle and pushed open the door
to find accused standing
holding a knobkerrie and a knife and the deceased lying on his
stomach. He recognised the latter as a
young man, a student, whose
parents lived in the village.

2

It is
common cause that the accused, who was clad only in his underpants,
told Ntsebeng and 'Masekhanya, and in fact others who
gathered later,
that he had killed a person, that that person was a stranger who had
invaded his home, and that that invader had
stabbed him first with a
knife on his thigh. According to the two witnesses who testified, the
accused spoke of one wound and showed
them one wound. The accused
himself Says he showed them two wounds. He also told them that the
knife Exhibit 2 belonged to the
deceased.

It has
also been established that there were incidents in that village of
people roaming at night and knocking at the doors of the
inhabitants
and generally harassing them.

The onus
was on the Crown to establish that the accused had the subjective
intent to kill. On the evidence adduced this was not
proved. The
accused however had inflicted ten wounds on the deceased ail over the
body and it may be he exceeded the bounds of
self defence. The Court
held reluctantly that there was a case to answer, not on a charge of
murder, but possibly on a competent
lesser verdict in terns of s.188
of the Criminal Procedure and Evidence Act 1981.

The
accused went into the box and gave evidence which had been previously
supported by the Crown witnesses, adding that when the
stranger
entered, he kicked off the light and they fought in the dark,

I think
that the accused must be given the benefit of the doubt on all the
possible verdicts. He is accordingly acquitted and discharged.

CHIEF
JUSTICE

28th
November 1985

For Crown
: Mr. Kabatsi

For
Defendant: Mr. Pheko