IN THE HIGH COURT OF LESOTHO In the matter
LEMENA LEBUSA JUDGMENT
Delivered by the Hon. Mr Justice ML Lehohla on the 15th
day of May. 2000
The accused is charged with murder; it being alleged by
the Crown that upon or about 14th May, 1988 and at/or near Ha Jopo in
Mohale's Hoek district he did unlawfully and intentionally kill
To this charge the accused pleaded not guilty.
As the indictment indicates this is a very old case that
took simply too long before trial.
2 It is unacceptable that a Preparatory Examination
record which appears to have
been completed on 9th November, 1988 incurred such a
long delay to be typed that the typed scripts only reached the
on 2nd August, 1995. It is equally unacceptable
that after all such delay a further delay was incurred in the
with the result that the accused had his first
appearance before this Court only on 26th November, 1999 when because
in the service of subpoenae for witnesses the case was
called just for mention before it could definitely take off on 22nd
In an attempt to shorten proceedings the defence
admitted the depositions of the following witnesses who testified at
Examination of this matter in the Court below :
PW6 Mokheseng Selone
PW7 Detective Trooper Lepheane
PW8 Dr W E Nolting
Further admission was made in respect of PW5 Moqibi
Ntilo's evidence. The admission was in terms of the Criminal
Procedure and Evidence
At 7 of 1981 section 227.
The admissions were accepted by the Crown and read into
the recording machine and thus made part of the proceedings before
Needless to say the post-mortem report was handed in and
marked Exhibit "A".
In terms of Dr Nolting's post-mortem report death could
have occurred on 15th May, 1988. This doctor established the cause of
as severe haemorrhage from the stomach and intestines caused by
piercing wounds. The doctor indicates that his findings are
with the report that he received that the deceased had
The external appearances are described by Dr Nolting as
being of a man with swollen body and loose skin and blisters all
attributes this phenomenon to freezing, possibly the result
of refrigeration in a funeral parlour.
The doctor further observed what he describes as omentum
coming through the wound in the abdomen. He observed one wound on the
and one wound on the right hip as reflected in the diagram
attached to Exhibit "A". The diagram reflects at (1) a four
centimetre long wound caused by a sharp object. The omentum majus
4 hanging out. At (2) is reflected a two centimetre long
would caused by a sharp object. The would is described as very deep.
is described a small wound that is not deep but which goes to
PW5's admitted evidence shows that his home is at Ha
Jopo and that on the evening of that day a concert was taking place
in a hall
in that village. PW5 was present at that concert. He had
occasion to leave for his homestead but on turning back to the
he found the deceased fallen inside the concert hall.
PW5 saw the wound on the deceased's belly and sought the help of
women to hand
over a doek with which PW5 attempted to tie the belly
with a view to staunching the bleeding.
PW5 said the chief arrived and ordered men to look for
the culprits in the act. The accused who later was charged as accused
with another came to the concert hall after thus being
rounded up with PW2. The accused i.e. Lemena Lebusa according to PW5
to the stabbing of the deceased. The deceased also was
rueful that Talasi had joined in the chase after him otherwise he
would have "outdone" people who had set after him.
5PW6 also resides at Ha Jopo. He is the elder
brother of the deceased. He was
sent for in the night when his brother was said to have
sustained serious injuries. PW6 saw for himself when he arrived at
hall that the deceased was stabbed. PW6 and others asked
who had stabbed the deceased the deceased replied that "it was
he was with Khatampi and Mongoli". The deceased could
still speak then.
However attempts to rush him up for medical attention
were foiled by the fact that he died along the way. According to PW6
had intimated to him shortly before he died that he was
tired and had preferred being taken back home. His actual words,
shortly before he died and while he was carried on a ladder
intended to convey him to a vehicle some distance away were "I
finished" and he died. The body was conveyed to the doctor
who performed the post-mortem examination.
PW7 a police officer attached to the CID at Qacha's Nek
testified at Preparatory Examination that on 16th May 1988 he was at
He knew the accused. On that day the accused was with his
relatives at Ha Sekake.
6PW7 examined the body of the deceased in the presence
of the accused. PW7
observed the wounds which have been referred to earlier.
He accordingly cautioned the accused and gave him a charge of murder.
conveyed the body along with the accused to Qacha's Nek. The body
of the deceased sustained no further injuries during the conveyance
between Ha Sekake and Qacha's Nek.
The oral evidence of witnesses led was first, though for
a very brief period, preluded by that of PW2 Mongoli Lebusa whose
had to stop because the witness was hungry and had not had
meals in the morning of the trial. Thus he had to step down and the
heard the evidence of PW1 Mampolai Sechaba.
PW1 and the deceased were lovers. PW1 knew the accused
too because the accused's brother is married to PW1's sister. PW1
Ha Mabatho village which is far from that of the accused and
his sister-in-law. PW1 testified that she could neither read nor
Moreover on the day of the concert she had come on a
visit to her sister's home at Ha Jopo.
7In the evening she and her lover i.e. the deceased
were at the concert enjoying the entertainment offered there.
PW1 accepted his sister's offer to put up with his lover
in one of the huts at her sister's seeing that PW1 's attempts to get
elsewhere for the night was meeting with failure. The
sister's offer appeared even the more welcome because the husband of
sister was away in the mines in Johannesburg at the time.
PW1 and her lover accordingly repaired to the hut
prepared for their accommodation for the night after the exhausting
stay at the
The night proved uncomfortable because the accused came
knocking at the door and making what to me appears to be making a
of himself. Asked who it was by PW1 the accused replied
The occupants of the hut did not open the door for him.
He threatened to break the door. Asked why he would break the door he
by posing a counter question namely why PW1 would not open
the door. To this she said she wouldn't open the door because she was
sleeping. This in turn led to the question posed by the
8 accused "with whom are you sleeping". Told
that PW1 was sleeping with the
deceased the accused is said to have said "if you
are sleeping with Nako in this house open and I am going to slaughter
a goat". Asked why the accused would do that he
vouchsafed PW1 no reply. Apparently the accused was incensed by the
the deceased sleeping with a woman at his relative's house.
The accused then with the assistance of others including
Talasi the deceased's relative started raining stones at the door of
hut which the Court was told did not have any windows.
PW1 suggested to the accused to go and ask his
sister-in-law to open the door but he declined to take this
suggestion and instead
worked himself up into a fury of a man who was
frantically preoccupied with hurling stones at the door of the hut in
which PW1 and
the deceased found themselves entrapped.
Khatampi who at one stage was Lemena's co-accused was
heard to say aloud "if there are Mookho i.e. PW1 (her maiden
Nako in there kill them both so that the case could have no
9 PW1 told the Court that when the deceased heard the
voice of PW3 Talasi
outside he said "oh you Talasi my brother and you
Tanki (PW4) you are in that group. Am I to be killed in your
Apparently in a vain attempt to make believe that Talasi
was absent the accused mocked at the deceased and asked "do you
Talasi is outside here".
If I may pause here, it appears that a concerted effort
was being made to obscure the identity of people who had joined ranks
the accused to assail the deceased. The accused's identity could
not be foiled because he had the undisguised motive to object to
couple unmarried to each other sleeping together at his brother's
place in the latter's absence.
The accused was heard by the entrapped couple to call to
Mongoli the accused's brother's son and order him to go to the lower
to fetch a spear. It is PW1's evidence that Mongoli managed to
bring the spear along because on his return Mongoli was heard to say
to the accused "here it is". In any event PW2 Mongoli
himself in turn corroborates PW1's evidence on this very important
aspect of the matter.
10 Be that as it may it was during the course of
this torment and sheer terror
instilled into the deceased and PW1 that the deceased
while thus entrapped inside realising that the door was about to give
PW1 to blow off the lamp. He thus made good his escape from
the hut aided by darkness inside there. But the moon is said to have
been shining outside.
When PW1 went outside everybody had cleared from the
premises. She testified that when the deceased fled from the hut the
chased him. She, on getting outside, ran away.
She didn't know what direction the chase took. She came
to see the deceased later in the concert hall that night. He was
He was already bandaged but PW1 could see blood seeping
through the bandage made out of a doek.
Of importance is that in that concert hall PW1 saw the
accused, PW2 and PW3 and others. However she didn't hear if the
PW1 heard the deceased relate the events of the night,
including the incident that led to his injury, to his brother PW6.
Under cross-examination PW1 was reminded that at
Preparatory Examination she did not tell the Magistrate that she met
with the accused
in the concert hall when deceased was already
injured. I don't think much should turn on this omission because it
is a fact that
the Chief had called for all those who had earlier
been to the concert to reconvene at the concert hall where the
deceased lay injured.
Both PW1 and the accused had earlier been to
It was put to PW1 that accused was not in the concert
hall at the time PW1 was relating her story to the gathering. She
was. PW1 denied that when the accused came and knocked at
the door where PW1 and the deceased were sleeping someone who was in
knocked him on the head. I accept PW1's denial and reject the
suggestion that anyone who was in that hut hit the accused on the
I reject also the suggestion that is a sequel to this bizarre
invention that had it not been for that assault he would not have had
cause to fight with the deceased.
I am not able to look with favour or accept the
suggestion that Khatampi retrieved the spear from the accused. His
failure to give
evidence to give explanation regarding things he is
said to have done cannot be explained away by questions put to Crown
that the accused was not concerned that the deceased was
12 with PW1 as PW1 is not the wife or concubine of the
accused. Nor can it avail the accused that because Khatampi had made
suggestions about eliminating the entrapped couple then he
must have been the one who wielded the spear with which the deceased
I therefore accept as satisfactory the evidence of PW1
on essential aspects of the charge preferred against the accused.
PW2 after being recalled proceeded and informed the
Court that the accused is his uncle. PW2 is the son of the woman who
and her lover to put up at her home.
PW2 did not know the deceased. PW2 heard of the
description of the deceased from PW5 and others during day time. The
coincided with what PW2 perceived of the deceased
later. PW2 was at the concert which had taken place at Mantsieng's
was during the night. It was during this concert that PW2
fell asleep and was awakened by a girl who indicated that people were
PW2's parental home. PW2 accordingly went to find out what
was happening. I should indicate that PW2 at the time was aged
12 and thirteen. He ran to his house
13 which is only 100 metres away. On arrival at his home
PW2 found that the door had already been broken.
PW2 testified that on arrival at home he saw among
people standing outside his uncle Lemena the accused, Khatampi who
was at one stage
accused 2 and PW4 Tanki Sello.
That PW2 mentioned that the accused Lemena was among
people outside is quite significant in view of what is alleged to
have been his
role in this total episode. Indeed he said the three
men he mentioned were standing outside. He said the accused called
and told him to go and fetch a spear. I am saying that this
is quite significant because a spear is a weapon that is associated
causing physical harm or death. It is far-fetched and indeed
inconceivable that a close relative of the accused who even stayed
him could falsely implicate the accused about the instruction he
gave PW2 to fetch a spear. In my view, the instruction to fetch
spear which was later handed to the accused could not have been for
any reason but, in the context of what was prevailing, for
of causing harm.
PW2 indeed fetched the spear from his parental home
where the accused was
14 staying. PW2 didn't know what the spear was going to
be used for. Given his age in 1988 (he was bom in 1975) he could not
for not inquiring what the spear was needed for. It is
significant that on being handed the spear the accused snatched it
This was at the stage that PW2 saw many people come running
after the one who was running ahead. At this stage the accused was no
longer at the house where PW2 had left him when he first met him. The
scene is clear that the situation was one of feverish urgency
part of the man who snatched the spear from PW2 and joined in the
This witness got to realise that PW4 and Khatampi had
joined the chase because when the chasers returned and came upwards
On his return from the chase the accused met with PW2
who had been lagging behind during the chase. They walked side by
side the accused
still holding the spear. The nearest PW2 was to the
spear at any stage during the return was a foot away. He noticed
nothing on the
spear. But he says after a while during the chase he
had heard the accused say "I have stabbed him". A short
he had heard Khatampi say "I have hit him".
PW2 never asked who these people were referring to. But to my mind,
no other man than the deceased had been stabbed or hit
15 chase in which the accused and Khatampi participated,
I have no doubt that reference was being made to the deceased. Thus I
as totally baseless and therefore unacceptable the suggestion
that the words attributed to the accused namely "I have stabbed
him" were actually an inquiry by the accused whether Khatampi
had stabbed someone. I accept PW2's story that the accused uttered
the words "I have stabbed him".
PW2 said on going home he joined Khatampi, the accused
and PW4. He and the accused made for PW2's parental home where they
partying company with Khatampi and PW4.
PW2 and the accused were called to the concert hall at
early dawn where they found the deceased lying on the ground with
Under cross-examination PW2 stated that he didn't see
the accused drink that night. However he readily conceded that the
been drinking at day time. PW2 denied that the accused
when telling him to go and fetch the spear had explained to this
someone in the house had assaulted him and that this was
why the accused wanted to fight people who had assaulted him in
16 lacks of elementary canons of credibility. First, PW1
told the Court that she and the deceased were the only people who
that hut and that they were sleeping. Next, nowhere did she
suggest or concede that anybody opened that door before it broke due
to being pelted with stones from outside. How then the accused could
have been assaulted by people in there in the circumstances
all logic and indeed escapes me. That PW2 a close relative of the
accused dismisses this suggestion as totally false strengthens
notion of ill-use put by the accused to this spear. Be it remembered
that PW2 said he wouldn't want anything evil to befall the
this proceeding. Saying so he satisfied me that he bears the accused
no malice. Thus he is not bent on getting his own
back on him by
falsely implicating him in this trial.
The flimsy suggestion that it is Khatampi who used this
spear probably to harm the deceased does not absolve the accused from
for its use because he is the one who ordered that it be
fetched. PW2's evidence on the issue is of crucial importance because
says when making this order the accused was shouting in anger. No
wonder then that PW1 from inside the hut regarding the spear heard
that order which was laced with feverish urgency for its no doubt,
immediate use. I may even surmise that the accused because he
company had entrapped the deceased in there felt he could not risk
the deceased escaping in his absence were it to fall to
17 own lot to fetch the spear he so earnestly needed,
his nephew come to his aid by fetching it.
PW2 in re-examination denied that the accused asked
Khatampi if Khatampi "had stabbed him". I accept PW2's
evidence in this
respect and accordingly reject the suggestion made
to him on the score of falsity. I may indicate that the evidence of
PW2 as it
stands is of good quality, untainted with exaggerations or
downright falsities. He didn't seek falsely to put his uncle in bad
He readily indicated his ignorance of things alleged to have
happened in his absence even where these tended to conflict with his
evidence. This is where astute re-examination by a lawyer who is
familiar with his brief came to good use. On the whole PW2's evidence
remained unshaken. It is corroborated in material respects by that of
The evidence of PW3 is not reliable insofar as he
indicated that he had been drinking too much on the day in question.
I decide therefore
to overlook it in favour of credible evidence so
far given. Moreover, I think PW3's evidence is bedevilled by the fact
that he wishes
to distance himself from events which put him among
people who were in the company of the accused pelting with stones the
the hut where PW1 and the deceased were sleeping. Not only
so, but he was seen among those who
chased the deceased after his escape from the hut and
finally; though not directly
charged by the deceased with having assaulted him, he
bears the shameful responsibility of having sided with the deceased's
as a result of which the deceased denounced him as the man
whose acts made the deceased see no point in trying to save his life.
It should be remembered that PW3 is the deceased's cousin who
ordinarily should have tried to defend him instead of joining with
those who were bent on injuring and harming him.
The same goes for PW4 who though not a relative of the
deceased his evidence is in sharp contrast with that of PW2 to the
PW4 said that the deceased ran into the concert hall
hotly pursued by the accused. I am not going to make any use of the
which is unreliable in some patent respects for fear that
even where it conforms with some aspects which are admissible there
always fear for treating with favour some portions of such a
witness's evidence because of the uncertainty to know where the lies
end and the truth begins and vice-a-versa.
I take solace in the statement of our criminal law that
where there is prima facie evidence of criminal liability at the end
Crown case, then if the defence closes its case, as in the
instant matter without leading any evidence, the prima facie
19 evidence becomes conclusive.
Indeed Mofokeng J in CRI/T/32/78 Rex vs Makhethe and 2
Others (unreported) at p. 13 succinctly put the point across in the
"It was argued that at the close of the Crown case
there was prima facie evidence on which a reasonable court might
that when the defence closed its case without leading any
evidence whatsoever, the prima facie evidence became conclusive
The position as I understand it is this : at the close of
the Crown case but before the defence has closed its case the
to be decided is : is there evidence against the accused on
which a reasonable court might find the accused guilty. But when the
defence has closed its case without leading evidence, the question to
be decided is; has the Crown established the charge beyond
reasonable doubt "
In CRI/T/1/92 Rex vs Masupha Seeiso (unreported) at p.
10 and delivered on 3rd August 192 the Court had this to
"It does seem possible that generally speaking
though at the end of the Crown case it is found that an accused
person has a case
to answer, if he in turn closes his case without
leading evidence he could be acquitted if it is found that the Crown
has not discharged
the onus cast on it to furnish proof beyond a
reasonable doubt that an accused person is guilty. This might be a
risky step for an
accused person to take for in a majority of cases
the prima facie case becomes conclusive as in such instances other
come into play including the accused's failure to
discharge evidential burden where it is shown to exist after the
totality of the
evidence has been weighed".
invaluable works of S.E. van der Merwe et al styled Evidence at page
provide a fund of pertinent material in a passage
"The State will have established a prima facie
case; an evidential burden (or duty to adduce evidence to combat a
case made by his opponent ) will have come into existence
i.e. it will have shifted, or been transferred, to the accused. In
words, a risk of failure will have been cast upon him. The onus
still rests on the State, but, if the risk of losing is not to turn
into the actuality of losing, the accused will have the duty to
adduce evidence, if he wishes to be acquitted, so that, at the end
the case, the Court is left with a reasonable doubt "
The late Moqibi indicated that the deceased stated that
the accused had stabbed him. PW1 and PW2 also said as much before
Since the accused came to the hall in company of PW2 then
no reason can impress on this Court why the accused could not have
such words uttered in his presence. His attempt to suggest
through questions put to Crown witnesses by his Counsel on his behalf
that he couldn't have heard those words is a mere charade.
Furthermore credible and therefore acceptable evidence shows that the
accused said within PW2's hearing "I have stabbed him".
Needless to say no one else within the vicinity of that utterance
stabbed with a spear during that night besides the deceased. The
accused's pretence, put through his counsel to the Crown witnesses
that it might be Khatampi who stabbed the deceased cannot avail the
accused because in the light of the fact that the accused had
been heard to say if it was Nako who was with PW1 in the hut
he was going to slaughter him like a goat, and in the
light of the fact that he ordered
for the spear to be fetched while he was keeping watch
to ensure that the deceased didn't escape; or if he did, from the
it would not be with any success, further in the light of
the fact that within a short while of the end of the chase he was
to say I have stabbed him, and finally in the light of the fact
that the deceased laid the blame on him for the stabbing; no way
the accused hope to escape criminal liability for the death of the
deceased. Even assuming it is Khatampi who stabbed the deceased,
accused had done more than enough to show he associated himself with
Khatampi's acts hence his resort to a lordly sleep in the
his bed even though he had earlier heard Khatampi's wicked suggestion
that it would be better to kill PW1 too if the deceased
is killed, so
as to suppress and render evidence of the sordid deed obscure and
incapable of detection. Not that I believe any bit
of this calculated
herring across the trail; but in case Khatampi is also liable it does
not render the accused innocent because
clearly he made common cause
with Khatampi were I to take it that Khatampi did the stabbing which,
I do not.
As in CRI/T/75/79 Rex vs Peter Kenene Mahase
(unreported) at p.39 I wish to reiterate the phrase reflected therein
to the following
effect as it is apt in the instant case as well:
"The Court formed an opinion at the close of the
Crown case that a sufficiently strong prima facie case existed to
accused's answer. What I mean is that standing on its own
the Crown case was enough to secure the accused's conviction"
the crime charged.
I may add that in a criminal case it is important to
establish, where possible, motive for the offence committed. In the
the only form of motive I have been able to discern is
the accused's resentment at the deceased sleeping with a woman at
his own brother's household.
Use of the lethal weapon in the form of a spear driven
through the upper part of the human body can always lead to one thing
criminal intent to commit the offence charged.
The accused is accordingly found guilty of murder of
Nako Selone as charged.
My assessor agrees.
JUDGE 15th May, 2000
For Crown : Mr Ntaote For Defence : Mr Matooane
During the extenuation phase of the trial the Court
benefited from the agreement made between counsel as to what appear
to me truthfully
to be two important factors which could be
considered in an attempt to find whether or not there are extenuating
this case. The first is that the accused is an
unsophisticated illiterate. The next is that the element of
intoxication is a factor
which is worth considering at this stage of
Indeed, extenuating circumstances where established
serve to palliate the accused's moral blameworthiness and in the
him or her to avoid the ultimate penalty of death. The
onus is on the accused on a balance of probabilities to establish the
of extenuating circumstances. The test is subjective.
The existence of extenuating circumstances can be proved
by evidence not too remotely related to the case that
the accused was drunk
the accused is immature
the background and social milieu of which he is a
product does not frown
24 upon a certain form of conduct.
The list is not exhaustive. But even if one factor
standing alone might not avail an accused person, indeed a
combination or accumulation
of two or more factors might just be
enough to fit the bill.
Thus taking into account also factors which are not part
of the agreement between the respective counsel; the situation
facts gathered from evidence is such that the combination
of drunkenness and illiteracy subjectively could have moved the
to think that he justifiably had a bone to pick with the
deceased for sleeping with a woman in his brother's household and
form of intent reflected is one known as dolus eventualis as
opposed to dolus directus, as reflected by the fact that there was a
hue and cry after the deceased thus showing it couldn't be said there
was direct intent to kill. While not meaning to be understood
that the existence of dolus eventualis necessarily helps avert the
ultimate penalty, I should indicate that put side by side
directus the form of intent known as dolus eventualis , would more
readily help the accused avert the ultimate sentence
than would dolus
directus do. Thus I feel that the accused has adequately discharged
the onus cast on him and do find that extenuating
this case exist.
The Court has taken into account that the accused has no
previous convictions. Further that he was relatively young and aged
at the time of the commission of the offence. Further that
the case has been hanging over his head since 1988 and that he has
to forfeit his bail since 1995 when he mistakenly thought that
the law had gone on retirement. He is married and has two children.
However the Court would be failing in its duty if it
could be blinded by these factors to the fact that an innocent life
lost; and that the accused tended to over play his hand
where it was not his business to interfere as the authorised person
had given permission to the couple to put up at the place
which is hers and not the accused's.
The accused is sentenced to 12 years' imprisonment My
26 15th May, 2000
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