HIGH COURT OF LESOTHO
matter of :
MOTSELEKATSE KHABANE MASELOA
by the Hon. Mr. Justice B. K. Molai on the 23rd day of June, 1986.
accused appear before me charged with the crime of murder, it being
alleged that on or about 7th April, 1985 and at or near
in the district of Berea they each or both, unlawfully and
intentionally killed one Fusi Motselekatse.
commencement of this trial Mr. Pitso, who represented the accused,
informed the court that the defence was admitting the
Puseletso Litali, 'Malelingoana Patela, 'Mamapele Matsitsa, 'Maseoeng
Litali, Macheli Motselekatse and Dr. Patrick
Sendyose who were,
respectively, P.W.1, P.W.2, P.W.3, P.W.6, P.W.7 and P.W.8 at the
proceedings of the preparatory examination.
Mr. Thetsane, for the
Crown, accepted the admissions, made by the Defence counsel, and the
depositions became evidence, in terms
of the provisions of S. 273 of
the Criminal Procedure and Evidence Act, 1981. It was therefore,
unnecessary to pall the deponents
as witnesses in this trial.
heard the evidence of P.W.1, L/Sgt. Masupha, who testified that on
7th April, 1985 he received a certain report following
proceeded to the house of .'Mamapele Matsitsa, in the village of Ha
Motsoene where he found a dead body of a man inside
the house. The
body was identified to him as that of the deceased. There were three
pieces of a broken stick found in the house.
He took possession of,
and handed, them in as exhibit 1 in this trial. P.W.1 went on to say
after it was identified to him he examined
the body and found that it
had sustained multiple injuries on the neck, shoulders, arms, chest,
armpit, thighs, legs and feet.
He counted altogether 17 wounds on the
body of the deceased.
examining it P.W.1 conveyed the body of the deceased to T.Y. mortuary
and it sustained no additional injuries. He then continued
May, 1985 No.1 accused surrendered himself to the police when he
cautioned and charged him with the murder of the deceased.
police custody No.1 accused gave him information following which he
(P.W.1) and the accused proceeded to No.2 accused's
home at Ha
Makola. They found No.2 accused not in. His wife was, however, in and
she handed a sword to P.W.1 who took possession
of it. It is exhibit
2 before this Court.
later on No.2 accused also surrendered himself to the police, P.W.1
confronted him with exhibit 2 and he identified it as his
This is, however, denied by No.2 accused.
It is to
be observed that when he was asked whether
No,2 accused could tell him that exhibit 2 was his property he had
warned him that he was a suspect and therefore, not obliged
anything and should he decide to do so, that would be reduce to
writing and could be used as evidence against him at a later
P.W.1 told the court that he did so only after No.2 accused had
identified exhibit 2 as his property. When he was made to
that he should have warned the accused whom he already regarded as a
suspect, in terms of the Judges' Rules before the
accused could say
anything to him P.W.1 somersaulted and said he had, infact,
administered the warning before No.2 accused could
I am sure
that P.W.1 was not being truthful to this Court. The truth of the
matter is that he did not warn the accused at all, and
committing perjury by making two contradictory statements on oath
before this Court.
as it may, the evidence of P.W.1 that he found the body of the
deceased with multiple injuries was corroborated by that
Patrick Sendyose in whose deposition, at the proceedings of the
preparatory examination, he told the Court that he was the
doctor who performed the post mortem examination on the body of the
deceased. He confirmed the evidence of Macheli Motselekatse
latter had identified the body as that of Fusi Motselekatse, the
deceased. The doctor's findings also confirmed that there
altogether 17 injuries as described by P.W.1. He formed the opinion
that although some of the injuries could have been inflicted
blunt instrument, the bulk of them was consistant with the use of a
sharp instrument. From his findings Dr. Patrick
concluded that death was due to Cardiac Tamponede and haemothorax
resulting from the injuries inflicted on the deceased.
medical evidence was not challenged, I can think of no good reason to
disbelieve it. - I am prepared, therefore, to accept
deceased died as a result of the injuries inflicted on him.
question that immediately arises is whether or not the accused are
the persons who inflicted the injuries that deprived the
his life. In this regard, it is, perhaps, helpful to outline briefly,
the events leading to this unfortunate death
of the deceased.
appear that prior to 1976 a woman by the name of Makaizer owned a
field in the area of Ha Motsoene. There was a time when
she went to
work in the Republic of South Africa. Before leaving for her place of
work 'Makaizer and the deceased concluded an
agreement whereby the
latter was to plough the field on half shares with her. In 1976
P.W.2, Tseliso Motsoene, the chief of the
area realised that the
deceased was no longer ploughing the field on half shares with
'Makaizer. He was taking all the harvest
from the field to his house
and using it for himself. P.W.2 was disatisfied with this state of
affairs. He then wrote a letter
to 'Makaizer notifying her that as
she was no longer using it the field had reverted to the
chieftainship for reallocation. He
accordingly reallocated the field
to one Kori Motselekatse, the father of No.1 accused in 1976. I must
point out that the fact
that the deceased took all the harvest from
that field for his own benefit in breach of his agreement with
was no basis on which P.W.2 could lawfully deprive that woman of her
rights on the field. It was a matter purely between
the deceased and
'Makaizer. P.W.2 had no business in it.
as it may, the decision of P.W.2, depriving 'Makaizer on her field
and re-allocating it to Kori Motselekatse, was, however,
and rightly so in my opinion, by P.W.2's senior chief and the
decision of the senior chief was made known to Kori Motselekatse
however, ignored it and continued to plough the field on half shares
with his son-in-law, No.2 accused.
deceased who, as has been pointed out earlier, had been using the
field following his arrangement with its owner was unhappy
atitude of Kori Motselekatse who was, in fact, his own elder brother.
This created bad blood between the deceased and
evidence the two accused told the court that they normally worked in
the mines, in the Republic of South Africa. In 1984
they were on
leave here at home in Lesotho when they received reports that the
deceased was in the habit of unlawfully taking maize,
watermellons from the field.
day in question, 7th April, 1985, the two accused were returning to
their place of work, in the Republic of South Africa,
short leave at home. As they walked towards the bus stop, outside the
village,the two accused noticed that there was
a person in the field.
They decided to go to that person and find
business he had in the field.
approached the field, that person left and took the direction towards
the village of Bethania. They identified that person
as the deceased
who was clearly carryingsomething in his blanket. The accused,
however, went to" the field and inspected it
for any possible
damage. They found that maize cobs had definitely been recently
broken and taken away. They then followed the
direction taken by the
appeared in the village the two accused saw the deceased next to a
church and he was giving maize cobs to people who had
come to church
for Easter services. When he saw the two accused coming towards him.
the deceased left the people to whom he had
being giving away the
maize cobs. The accused followed and caught up with the deceased when
he was next to the house of 'Mamapele
Matsitsa No. 1 accused was the
first to come to the deceased and Wo. 2 accused was following about 9
paces (indicated) behind.
caught up with him No.1 accused asked the. deceased why he had been
causing damage in the field by taking maize cobs. The
reply was that he would not be talked to in that manner by small
children. No.2 accused then rushed at the deceased
when the latter,
who had pulled out a knife tried to stab him. No. 2 accused caught
hold of the knife which cut him on the hand.
He however, managed to
take the knife from the deceased who then ran into the house of
deceased ran away, No.1 accused went to his house leaving No 2
accused still holding the deceased's
where the latter had injured him. At his house which was about 50
paces (indicated) away No 1 accused armed himself with the
exhibit 1, and returned to No 2 accused. They then followed the
deceased to the house of 'Mamapele which was also a distance
50 paces (indicated) from the house of No 1 accused. I shall return
to the evidence of the two accused in a moment.
evidence 'Malelingoana Patela testified that she was a married
daughter of 'Mamapele Matsitsa. On 7th April . 1985 she was
her maiden home at Ha Motsoene when, in the early morning, the
deceased came to their house. The deceased appeared reluxed
for a brown paper with which to prepare his tobacco for a smoke.
(10) minutes after the deceased had come into the house, the two
accused also arrived. As they entered into the house
the two accused
passed her next to the door way, kicked aside her smell child and
headed straight to where the deceased was seated
in the house They
were clearly in a fighting mood and so the witness quickly picked up
her little child and cleared out of the
house, leaving her mother.
'Mamapele Matsitsa, who had. been making her bed. The witness could
not, therefore, see what took place
in the house between the two
accused . and the deceased.,
was outside the house 'Malelingoana. raised an alarm by shouting:
"Here are people fighting in the house." On
of 'Mamapele who had also come out of the house and was raising the
alarm she ('Malelingoana) rushed to the chief
and made a report. This
who said he then went to 'Mamapele's house where he found the
deceased dead. He then sent a report to the police. The evidence
'Malelingoana was, in as far as it is material, also corroborated by
that of 'Mamapele Matsitsa.
'Maseoeng Litali and Puseletso Litali confirmed that, on the morning
in question, they heard the alarm raised by 'Malelingoana
'Mamapele. As a result they proceeded to the latter's house where
they found the deceased dead.
to their evidence, the two accused told the court that when they
followed the deceased No 2 accused was the first to enter
'Mamapele's house and he was immediately followed in by No 1 accused.
Although he denied that after passing 'Malelingoana
next to the door
way he kicked aside her little child, No.2 accused admitted that he
went straight to the deceased and started
stabbing him with the knife
he had taken from him.. He denied, therefore, to have used the sword
that was allegedly received from
his wife. No.1 accused also
confirmed that as he followed No.2 accused into 'Mamapele's house the
latter was already stabbing the
deceased with his (deceased's) knife.
He joined No.2 accused in his assault on the deceased by delivering
blows on the latter with
his stick, exhibit 1, which even broke into
pieces. They eventually went out leaving- the knife and the broken
pieces of exhibit
1 in the house.
in his own mouth No.1 accused was aware that Mo 2 accused was
assaulting the deceased with a knife and joined him by hitting
deceased blows with his stick
The accused, therefore, knew the person they wanted. That being so,
it cannot be said they were so provoked as not to
know what they were
doing. In the premises, the accused's provocation, if any at all,
cannot have been such that it could reduce
the crime of murder to a
the fact that the accused inflicted on the deceased, a total number
of 17 wounds, many of which were concentrated on the
upper part of
the body, leaves no doubt in my mind that they must have realised
that death was likely to result. They, nonetheless,
acted reckless of
whether or not death did occur., That being so, it must be accepted
that when they assaulted the deceased in
the manner they did, the
accused had the subjective intention to kill.
therefore, find both accused guilty of murder as charged.
evidence, which I accepted, that the . deceased was seen unlawfully
taking maize cobs from the field which No.2 accused
Motselekatse, the father of No.1 accused, had cultivated albeit
wrongfully. That, in my view, was provocation to the two
the deceased. Even if it were such that it could not reduce the crime
of murder to culpable homicide such provocation
must properly be
taken into consideration for purposes of extenuating circumstances.
it would appear, from the evidence that the accused did not actually
plan or premeditate the death of the deceased. In
itself the absence
of premeditation seems to be a factor tending to lessen the
moral blameworthiness of the crime committed
by the accused See page
365 of Hunt in his invaluable work : South African Criminal Law and
Procedure Vol. 11.
foregoing it seems to me there are extenuating circumstances in this
case and I find accordingly. Both my assessors agree
was invited to take into account, for the benefit of the accused, the
facts that both accused are first offenders, the
deceased is their
own relative, by unlawfully taking the produce of the field
admittedly cultivated by No.2 accused and the father
of No,1 accused
the deceased was himself provocative to the accused and P.W.2's
unjust decision to re-allocate to Kori, 'Makaizer's
field which the
deceased had all along been using was the
cause of the accused's trouble in this matter.
prepared to consider these factors. However, even if the deceased had
wronged them the accused should not have taken the law
into their own
hands and killed him. They should have taken the deceased to Court to
be punished in due process of the law.
this Court has, time and again warned that it will take a rather diem
view of people who show no respect for the life of
humans. If only a repetition of this kind of a thing were to be
brought to a halt it is necessary to impose upon the
sentences that will be commencerate with the seriousness of the
offence they have committed.
taken into consideration that although it was found that the two
accused had acted in consert in their assault on the deceased
were, therefore, both rightly convicted of murder, the bulk of the 17
wounds on the deceased were however, inflicted by No.2
for that reason I have come to the conclusion that the sentences of
10 years' imprisonment and 8 years' imprisonment
for No.2 accused and
No.1 accused, respectively, are appropriate. They are accordingly
: Mr. Thetsane
Defence : Mr., Pitso.
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