CRI/T/27/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of.

REX

V

LESESA
LETHUNYA

JUDGMENT

Delivered
by the Hon Mr. Justice Sir Peter Allen on the 14th day of December,
1987

The
accused is indicted on two counts of murder by shooting alleged to
have occurred on 22 May 1987 at Khubetsoana, Maseru. The
victims were
the wife of the accused, 'Malapane Lethunya (count 2), and a man
alleged to have been her lover, Teboho Koma (count
1). He was also
her uncle.

It was
common ground that for some time before this incident the accused and
his wife had been quarrelling about extra-marital love
affairs that
each accused the other of having Evidence of this dispute was given
by Matlere Thejane (PW2), the father of the deceased
'Malapane, and
by Ekabang Koma (PW8), a younger brother of the deceased Teboho Koma,
as well as by the accused himself

The
accused admitted that he had seriously assaulted his wife and that
she then left him and went to stay with her uncle, the deceased
Koma,
at Maseru East There were a

2

number of
family meetings arranged in an attempt to patch up their quarrels but
they were inconclusive and the couple stayed apart.
The accused
alleged that his wife was having a love affair with her uncle Koma
while she was staying at his home, where Koma's
wife was also living.
At the same time the accused admitted that he had a girl friend and
lover named Pinki Potaung.

At one of
the family meetings attended by both the accused and the deceased
Koma, the accused had made some very critical remarks
about the
behaviour of his wife, and the accused alleged that he was then
attacked by Koma who tried to punch him but missed Matlere
(PW2)
denied that this happened. But it is clear that the two families did
not make any progress in their attempts at reconciliation
and the
accused and his wife 'Malapane were drifting further apart.

The
accused said that he was told that Koma had given a large sum of
money to 'Malapane and had bought her an expensive watch and
other
gifts The accused described himself as "insanely jealous"
of her and that he had "an obsession" about
the affair
between his wife and Koma. Apparently he thought that it was all
right for him to have an affair with another woman
but he could not
bear the idea of her also having an affair But jealousy is a strange
and destructive feeling

'Malapane
worked at the L.T.C. office in Maseru and one of her colleagues in
that office was Amelia Molapo whom the accused said
was continually
supplying him with information about the movements and activities of
'Malapani

3

and Koma.
Amelia was acting as his spy and informant. This woman did not
testify and it is not known how true the accused's claim
was nor what
her motive was for doing this unpleasant task.

In
addition, the accused started following his wife and Koma and
watching them from a distance and seeking information about them
All
the signs of an obsession, in fact.

In
November 1986 the accused illegally purchased a 9mm automatic pistol
of unknown make from a person whom he named as Tseliso Moroko.
He had
ammunition for it and he was in the habit of carrying it about with
him. He did not explain why.

On
Thursday 21 May 1987 the accused was informed by Amelia that Koma had
arranged to collect 'Malapane on the next day after her
work and then
take her to some un­specified place. He also heard of a party
planned by Amelia for some of her colleagues at
the L.T.C., on the
same Friday.

During
the afternoon of Friday 22 May the accused went to see one Cheseho
Motsoakeletse (PW4) who worked as an electrician at the
U S Embassy
in Maseru. The accused said that he wanted to borrow Cheseho's car
that day to deal with some family matters in Maseru
East. No doubt he
realised that he could move around unseen more easily in someone
else's car. Cheseho'a car was a green Peugeot
504 saloon.

The
arrangement was that the accused would return the car to Cheseho at
the polo ground where Cheseho was going for soft-ball practice
at the
end of the afternoon.

4

Otherwise
the accused would find Cheseho afterwards at the home of his friend
Thabo Ralise at Lower Thamae.

At 4.30
p.m. the accused was sitting in the car which was parked in the car
park at Lancer's Inn across the road from the L.T.C.
office where his
wife was working. At the same time one Tsoloane Makhetha (PW3) was on
his way from work to Lancer's Inn where
he intended to buy himself a
cold beer.

He said
that the accused called him over to talk and asked him to get into
the car. When Tsoloane replied that he was on his way
to buy a beer
the accused told horn not to bother as he bad some cans of beer in
the car and he gave him one. They sat in the front
seats and drank
silently. When Tsoloane asked the accused what he wanted, the accused
told him to look at two women and a man standing
together outside the
L.T C. enquiry window about 25 metres from them.

The
accused pointed to one of the women, who was wearing a green dress,
and said that he wanted to see in which vehicle she was
going to
leave Tsoloane asked if she was the accused's lover and he replied
that she was his wife. Nothing was happening so Tsoloane
left the car
and went to make a telephone call from a nearby booth. He described
the accused as being restless and agitated and
constantly peering
through the car windows.

When ha
had finished 'phoning he saw the accused talking to a man called
Jerry, the assistant manager of Lancer's Inn. At the same
time he saw
the two women and the

5

get into
a red delivery van driven by the deceased Koma, whom he knew and
recognised. He also saw the accused trying to get his
car started and
being pushed by some people for that purpose.

Tsoloane
went across to the accused who asked him to get in as he wished to
follow the van. Tsoloane declined as he said his driver
had arranged
to pick him up from the hotel.

The
accused drove off and followed Koma's van keeping two other vehicles
between them. They went along the road to the old airport
as far as
Seputana where some of the passengers got out. After that Koma drove
to his home in Maseru East and the accused left
him there and went
home to Khubetsoana.

At about
6 00 p.m. the accused drove to the Salang restaurant at Khubetsoana.
The restaurant was owned by the deceased Koma and
the accused asked a
woman employee there if she knew where Koma was She told him that
Koma had gone home. The accused then drove
to Koma's home in Maseru
East and asked for him there. A woman domestic servant told him that
Koma had been there with the accused's
wife but they had gone. She
added that 'Malapane had told her that she was going to a party
somewhere in the location. This was
apparently the same party that
the accused said he had already heard about from Amelia, but it
appears that he did not then know
where Amelia's house was located.

The
accused drove around the area looking for signs of a party such as
cars parked outside, a lot of people

6

about and
much noise. He did not find such a place. This was probably because
it was in fact a small party and apparently only one
of those
attending had a car parked outside. So the accused drove to his home
before 7.00 p.m.

At around
7.30 p.m. he took the car to Lower Thamae to meet Cheseho (PW4)
again. The accused found Cheseho with some other people,
including
one Ntsane Ntsane (PW9) whom he knew. The accused asked Ntsane Ntsane
if he knew where a party was being held for L.T.C.
women workers and
whether he knew a certain woman who worked in the phonograms
department of the L.T.C, But Ntsane Ntsane was unable
to help him and
the accused left with Cheseho, supposedly to go to their homes which
were close to each other in Khubetson.

Although
the oar belonged to Cheseho the accused seemed to use it as if it was
his own vehicle and he continued driving from place
to place
searching for his wife while Chesebo sat beside him as a docile
passenger. The accused drove first to the Victoria Hotel
in Kingsway
where the accused stopped to make a telephone call to Koma's home to
find out if 'Malapane was there.

Apparently
she was not there and, on their way out, they passed the entrance of
the Kingsway Cinema and the accused went inside
saying that he wanted
to apeak to someone there. When he came out they got into the car to
proceed to Khubetsoana with the accused
still driving.

At around
8.00 p.m. they came to the Salang res­taurant once again and the
accused decided to go inside for a drink. Cheseho
dutifully followed
behind him.

7

They saw
the deceased Koma sitting at the counter and he greeted them. The
accused then left Cheseho standing there and went down
some steps
into the darts room where he found one Seeiso Letsie (PW14) who asked
the accused to buy him a beer. On their way to
the bar Letsie claimed
that the accused said, "My elder brother, today I think
some­body is going to die, if I don't die
myself" Letsie
replied, "I think you're drunk."

Then the
accused said, "Mine is here" and moved the side of his body
against Letsie, who said that he felt a hard object
at the accused's
waist under his jacket which he thought was a gun. This was possible
since the accused has admitted that he was
in fact carrying a 9mm
automatic pistol that evening.

At about
the same time the accused noticed that Koma had left the restaurant
He bought a beer for Letsie and left immediately with
Cheseho, who
said that the accused appeared to be in a hurry. The accused said
that he wanted to follow a vehicle which was then
moving away with no
lights on. It was in fact Koma's van although Cheseho claimed that he
did not know so at the time. The accused
told Cheseho to watch out
for the van's brake lights which they saw when the van slowed down to
turn a corner. They followed and
saw the van stop outside a house.
The accused then stopped and switched off the car lights. He got out
for a moment and did something,
then re-entered the car In Court it
was suggested that he had cocked his gun ready for firing, but he
denied this.

The van
had stopped beside a car which was parked outside a house in the
Stores Area of Khubetsoana. This was, in fact, Amelia Molapo's
house
where the party was

8

taking
place. It was a small house with only two rooms and the 7 or 8 people
attending the party were occupying both rooms. The
room used as the
kitchen was nearest to the road and it had a window looking on to the
road. One of the guests was Khopiso Mqedlana
(PW6), the owner of the
car parked outside. The window was open and he said he was sitting at
the window keeping an eye on his
car parked outside. He and his wife,
'Masebone, were present because she worked at L.T.C. with Amelia and
'Malapane, who was also
at the party. This was confirmed by another L
T.C. colleague called 'Mamoorosana Sekoala (PW12) who was also
present, but in the
other room, used as a bedroom. She (PW12) was
there with Amelia and her sister preparing some food for the party.
There was music
playing and people were drinking.

On the
other side of the road outside Amelia's house there is a streetlight
on a tall pole (about 20 paces from the window). There
is another
streetlight on the corner of a road junction,just before reaching
Amelia's house, and about the same distance from the
window The
witnesses said that the lights were working that night, so there was
adequate light in the area

Khopiso
(PW6) knew the accused because they had once worked at a mine
together for two years. Khopiso and his wife were sitting
with
'Malapane at the window when Koma's van stopped outside 'Malapane
told them that she was going out to tell her uncle Koma
that the
party had just started and that he could either collect her later or
on the next morning. She was seen to go outside and
to stand by the
passenger's door of the van apparently talking

9

to Koma
who was sitting inside the van. Khopiso (PW6) said he saw this and so
too did Cheseho (PW4) as he and the accused moved
up and stopped
their car behind Koma's van. Both witnesses saw the accused get out
and walk towards his wife who was still standing
talking to Koma.

Khopiso
testified that he did not see what happened next, but he looked so
uncomfortable and nervous when he said that, that it
was clear that
he had conveniently "forgotten" the rest of the incident
However, Cheseho described what followed. He
said that the accused
approached his wife 'Malapane and grabbed her by the arm and she
started to scream and to call out something
which the witness could
not hear. Koma got out of his van and came round the back of the van
between the two vehicles. He raised
both of his hands and approached
the accused and 'Malapane calling out "Butleng!" (meaning
"stop" or "hold
it").

Cheseho
saw the accused pull a gun from his waist­band and he fired two
shots and the witness immediately ducked down below
the car
windscreen level. 'Malapane had broken away from the accused and
moved between him and Kota, She probably turned away when
the accused
fired his second shot because that bullet passed through her left
side and her heart and then out of her chest on the
right side. She
fell down and the accused pursued Koma along the road still firing at
him.

At the
road junction Koma turned right and ran northwards until he reached
the house of Mrs Qholosha (PW5) which was about 40 paces
from the
junction. Outside

10

her house
was another street light and Koma fell to the ground about 12 paces
from the lamp-post Mrs Qholosha had heard the sounds
of the earlier
gunshots and she was looking out of her window.

Under the
street light she saw two people. One was the accused, whom she knew
and recognised He was standing over the other person
who was lying on
the ground. She saw the accused point a small gun downwards and he
fired 2 or 3 shots. She saw the flashes from
the gun as it was fired.
When she saw that the accused had walked away towards Amelia's house,
Mrs Qholosha went outside and approached
the body. She recognised
Teboho Koma whom she knew very well. There was blood coming from his
head and he appeared to be dead She
cried out in alarm and other
people came to the scene.

Mrs
Qholosha said that there was a small apricot tree about four feet
high in her yard between the window and the road She said
that it did
not obstruct her view of the accused and, in any case, it was late
May and there were no leaves on it.

Cheseho
(PW4) described how he saw Koma running away from the accused. Koma
was moving slowly and limping, no doubt because he had
already been
hit by one or two bullets, may be more. It seems surprising that he
could move as far as he did. The 9mm bullets are
quite large ad they
are designed to stop and disable a man and to knock him down at close
range. It appears that Koma was a fairly
heavy man and so perhaps his
excess fat absorbed some of the shock of his injuries for a short
while.

11

Cheseho
said that he saw the accused approach Koma, who had fallen down near
the street light The accused stopped there and Cheseho
heard more
gunshots.

The
accused then ran back and joined him in the car. The accused said, "I
told them that they would shit." He then drove
the car towards
where Koma was lying and then passed by him and went away. Cheseho
told the accused to take him home, which he
did, and Cheseho got out
He said he was by then afraid to ask the accused to leave the car
with him and he watched the accused
drive off in it.

Cheseho
managed to get a lift to the police charge office where he reported
what had happened, but the police had already received
a report of
the incident by then.

While the
accused was pursuing Koma, 'Malapane, although fatally injured
through the heart, somehow had managed to crawl to the
door of
Anelia's house. 'Mamooros in Sekoala (PW12) heard the gunshots and
went into the kitchen where she noticed that 'Malapane
was absent She
asked where 'Malapane had gone and was told that she was outside.
'Mamoorosana opened the front door and 'Malapane
fell through the
doorway and collapsed on the floor bleeding badly. She managed to
speak and said, "He has finished me "
She then became
unconscious.

Khopiso
(PW6) noticed that the accused's car had gone by then and he and
other people there carried her into Khopiso's car and he
took her to
Queen Elizabeth II Hospital where she died after admission. Khopiso
then drove to the charge office and reported the
incident to

12

L/Sgt
Chakache (PW11) at some time after 9 00 p.m.

At 10 15
p.m. the accused himself reported to the charge office. He was
accompanied by his mother and sister. He stated that he
had shot dead
his wife and Koma and he had then driven off and he had afterwards
thrown the 9mm pistol that he had used into Maqalika
Dam. He told
L/Sgt Chakache that he had no licence for the firearm and that he had
purchased it from someone in R S A. The accused
had also added that
there was one bullet remaining in the gun and so he had thrown it
into the dam because he thought that he might
otherwise have killed
himself with it. The accused was arrested and charged with murder

Earlier,
at shortly before 9.00 p m , W.O. Ntsele (PW7) of the Police
Transport Section was driving a police van to his home in

Khubetsoana. When he reached the scene of the shooting he saw a group
of people standing about Mrs Qholosha (PW5) reported to him
what 'had
happened W O Ntsele drove to the charge office and picked up Tpr
Mahanyele (PW1), who was then in the CID, together with
another
trooper. They went back to the scene and Tpr Mahanyele became the
investigating officer in this case

Once
again, as in previous cases, I have to criticise the tendency of the
police to allow junior officers to investigate serious
criminal cases
that are almost certainly going to come before the High Court for
trial. Quite clearly such investigations should
be carried out under
the direct supervision of an experienced senior officer Tpr Mahanyele
did not do a very good job of investigating
this case, but such a
junior officer cannot be expected to

13

do so if
he is not properly supervised and if he does not have the advantage
of working with and learning from a highly experienced
officer

The
Warrant Officer was in the transport section and not CID and so he
considered it proper to hand over the case to his subordinate
who was
in the CID. I do not think that this way correct because the senior
officer present at such an incident should in fact
always remain in
charge until he is relieved by a senior CID officer.

An
investigating officer has a number of important duties to perform at
the scene and one of these is always to prepare a simple
sketch plan
of the scene of the crime showing the location of all relevant items
such as buildings roads, street lights, the position
of the body,
blood stains weapons, empty cartridges, broken glass and so on
Dis-tances of one from the other should also be recorded
The sketch
plan is then handed into Court at the commence­ment of the trial,
with copies to the prosecution and defence Thus,
throughout the
trial, the Court is able to follow the evidence of the various
witnesses so much more easily by making reference
to the sketch plan
when­ever necessary.

When I
asked Tpr Mahanyele why he had not drawn a sketch plan of the scene
he admitted that he did not even know what a sketch plan
was. And yet
he was supposed to be the investigating officer in a very serious
double homicide case.

The
consequence was that, at the end of the pro­secution case, the
Court had to use up valuable time going

14

to the
scene so as to obtain a picture of it that should have been provided
right at the start by the prosecution. I hope that in
future the
police will take steps to ensure that sketch plans are always
prepared, as well as that more senior officers conduct
the
investigations of serious offences

All the
eye-witnesses, including W.O. Ntsele, stated that there wore working
street lights at the scene at that tine. The Court
itself saw the
lamps in place. In spite of this Tpr. Mahanyele insisted that there
were no street lights at all in that area A
police officer without a
power of observation is not a lot of use

W.O.
Ntsele stated that the body of Koma was lying face upwards under a
street light. Tpr. Mahanyele described the injuries seen
as a ragged
wound in the centre of the forehead, a ragged wound on the right
shoulder, other wounds to the left buttock, left thigh,
below the
left armpit and one on the top of the head. He described the wounds
as all being at the front of the body, although I
do not see how that
description could fit the wound on the buttock In fact there were
other wounds at the back of the deceased
The investigating officer
should have checked the body thoroughly

Both
officers noted that the deceased had a pistul inside a holster which
was tucked into the waistband of his trousers W.O. Ntsele
removed it
and found that it was a Beretta 7.65mm automatic pistol (exh.l)
loaded with 8 live bullets, one of which was in the
chamber and seven
in the magazine. The safety catch was on and the gun was cocked. It
had not been fired

15

Tpr
Mahanyele then demonstrated an uncertain memory and a lack of ability
to count He first stated that the gun had only 5 bullets
in it and
then later he handed in 8 bullets (exh.3) which he claimed to have
taken from the gun He found six spent 9 mm cartridge
cases (exh. 2)
at the scene but, when describing the different places where he found
them, his total kept coming to seven rather
than six. Eventually it
appeared that he had found 2 cases outside Amelia's house where
'Malapane was shot, one case near Koma's
body and three cases on the
corner near a street light Of course there may have been others not
found.

Three
days later, on 25 May 1987, Dr Mohapi (PW10) performed post mortem
examinations on both bodies at the Queen Elizabeth II Hospital,

Maseru, and handed in to Court her reports on Teboho Koma (exh.A) and
'Malapane Lethunya (exh.B). The body of Teboho Koma was identified
to
the doctor by the deceased's brother, Ekabang Koma (PW8). That of
'Malapane Lethunya was identified by her father Matlore Thejane
(PW2)

On Koma
were found nine injuries, all probably caused by bullets entering or
exiting from the body. At, least two were exit wounds
but there may
have been more. There was an entry wound in the centre back of his
head with a larger exit wound above his right
eye There was a wound
high up on the right chest and another in the left side under the
upper arm. There were two in a direct line
from it through the left
arm and it would appear that all three wounds could have been caused
by the same bullet entering the body
through the arm

16

There was
an entry wound in the left small of the back and another in the left
buttock. Another in the left thigh both of which
the doctor thought
were entry wounds, although I believe that they could have been an
entry and an exit if the bullet had passed
through flesh without
striking a bone.

The head
wound smashed the skull and caused brain damage resulting in death Mr
Maqutu lavished praise on the doctor for her examination
reports, but
I was not so impressed because, in fact, several things were left
undone.

No
attempt was made to open the body so as to report on internal
injuries to bones and organs Some doctors seem to seize on what
is
probably the fatal injury and to ignore the rest. That is not correct
procedure All in juries must be examined and reported
on in full. It
is not always the obvious injury that eventually turns out to be the
cause of death. It is possible, for instance,
for a person to die of
heart failure before actually being struck by a bullet or stabbed
with a knife, and I have dealt with such
cases. Thus the
investigating officer must request a complete examination and report.

No
attempt was made to locate and remove the bullets from the body. This
can easily be done with the aid of X-rays and a probe.
It should
always be done in gunshot cases as it is necessary to know which are
entry and which are exit wounds, and also to learn
how many bullets
actually penetrated the body. In addition the extracted bullets must
be examined and reported on by the ballistics
expert or firearms
examiner, who is supposed to be able to

17

calculate
how close the gun was to the body at the time of firing, and often to
identify the weapon which fired the bullets.

But these
omissions are much more the fault of the police rather than the
doctor It is absolutely essential that the police investigating

officer is always present at the post mortem examination It is his
duty to inform the doctor what the police may be looking for,
such as
entry and exit wounds, or what requirements they have such as the
extraction of bullets or pellets or other foreign bodies.
It is also
his duty to receive such bullets etc from the doctor and then to take
them to the firearms examiner. If the doctor is
not informed of these
requirements he will probably do nothing about them, as happened in
this case.

Tpr
Mahanyele, who claimed to be the investigating officer, did not
bother to attend the post mortem examination Even if he had
attended
I doubt whether he would have known what to do or what to ask for. It
is yet another reason for having an experienced
senior officer
performing that duty

The post
mortem examination of 'Malapane Lethunya (exh. B) was more
straightforward She was shot with one bullet which entered her
left
side under the rib cage and passed upwards at an angle through the
liver, heart and left lung and pulmonary vein and artery
The bullet
exited on the inside of the right breast and passed through cause
that breast and away. The of death was perforation
of the heart and
massive bleeding.

18

If the
accused was correct when he said he fired seven rounds from his gun,
and one went into 'Malapane, the other six were probably
fired at
Koma. He had nine injuries but five of those were probably caused by
only two bullets The two in the head by one bullet
and the three
holes through the left arm and into the left side were no doubt
caused by one bullet. That leaves four other injuries.
This would
mean that all six rounds fired at Koma hit him, three in the back,
two in the front and one into the left side. Of course,
there would
have been more certainty about this if the post mortem had been as
comprehensive as I have indicated.

Lieut.
Telukhunoana (PW13) testified about the pistol and ammunition
exhibited He is a firearms examiner but, in my opinion, not
a
ballistics expert His quali­fication as a medical laboratory
technician is irrelevant to the science of ballistics Apart
from a
familiarisation visit of one week to the ballistics section in
Pretoria the witness has on]y worked with firearms for about
two
years It will probably take about 10 years of such work before he can
properly be called an expert.

The
witness was apparently prepared to give an opinion about the firing
mechanism of a 9mm pistol which he had never seen or handled
and of
which he did not even know the make or type. No expert would ever do
such a thing. There are quite a number of different
countries in the
world which manufacture 9mm automatic pistols and I cannot accept the
assertion of the witness that they all have
the same type of firing
mechanism

As I have
already pointed out, a firearms examiner should have been asked to
examine and report on bullets which

19

ought to
have been extracted from the deceased Koma. The Lieutenant said that
he had never been present at the examination of a
human corpse in a
gunshot case. He should rectify this omission as soon as possible so
as to acquire some firsthand knowledge of
how bullets and pellets are
affected by contact with and penetration of the human body.
Otherwise, when he does examine extracted
bullets etc, he will not
understand the significance of the distortions caused to them by
their passage into and through the body.
Nor will he be able to
estimate the range at which they were fired Furthermore he should
know at first hand about entry and exit
wounds caused by bullet
Second hand information is not expert evidence

According
to this witness the 7.65 Beretta pistol (exh 1) was test-fired and
found to be in working condition The eight live rounds
(exh.3) fitted
that pistol and could be fired from it. The six empty cartridge cases
were 9mn and so of a larger calibre and they
had been fired from a
different gun. The witness put in his report as exhibit C

The
witness Cheseho (PW4) testified that he met the accused a few days
before this trial commenced Cheseho had already made a statement
to
the police but apparently he did not receive a summons to attend the
trial until after he met the accused.

Cheseho
said they met at the accused's home and talked about this case in
which Cheseho was expecting to be called as a prosecution
witness.
After discussing the matter the accused suggested that Cheseho had
forgotten

20

some
points in his earlier statement. The first was that they had found
Koma and 'Malapane kissing each other inside the van. The
second was
that Koma came out of the van pointing his gun at the accused The
third was that Cheseho did not see where the gun came
from that fired
the shots and he merely heard the shots Cheseho then stated in Court
that he did not see Koma and 'Malapane kissing
in the van nor in fact
were they very close together when she was talking through the van
side window. He added that he did not
see Koma produce a gun. Cheseho
stated that he was friendly with the accused and they were drinking
com­panions and there were
no misunderstanding or grudges between
them.

The
accused testified on oath at considerable length in his defence He
did not dispute the general outline of the prosectuion case
but he
did deny various allegations made by some of the witnesses.

He
admitted that at the same time as he thought his wife was conducting
an affair with her uncle Koma, he himself had a woman friend.
In
spite of that he described himself as being "insanely jealous"
of his wife and that he had an obsession about the
matter He had
heard that Komp had given 'Malapane an expensive watch and large sums
of money and so he started to spy on them He
said

" I agree I shot both my wife and Koma. I shot at Kome because
he was holding a firearm to shoot at me, to stop him, not to
kill
him. I did not want to give him a chance to kill me. I agree he had
an opportunity to shook me and he did not shoot at me."

21

Later, in
cross-examination the accused said

" I was shotting in self-defence, stopping him from coming back
and fighting me. Shooting my wife was unintentional. It was
an
accident. She was standing between us I was not reckless to shoot
them. She moved into it when I fired "

The
accused admitted that he carried a loaded pistol with him on the
afternoon and evening when he moved around Maseru looking for
his
wife and Koma. He added that he usually carried it.

With
regard to the testimony of Makhetla (PW3) that he met the accused at
the Lancer's Inn car park at 4 30 p.m and was invited
into the car to
drink a beer with the accused who was then spying on his own wife,
the accused denied that the conversation ever
took place. It is not
clear why the accused bothered to deny something that he himself
described as having happened in the absence
of Makhetla It is not
likely that Makhetla could or would have made it up. There would be
no purpose in doing on.

Concerning
the alleged conversation with Letsie (PW14) in the darts room of the
Salang restaurant, when Letsie said the accused
told him that
somebody was going to die that day if he did not die himself, the
accused denied that he said anything at all to
Letsie because, so he
said, he was in a hurry to follow Koma who had just left the
restaurant. This testimony, if true, would have
indicated a measure
of premeditation by the accused

22

The
accused admitted that most of Cheseho's (PW4) testimony was accurate
but he denied some parts, such as that the accused stopped
the car
before approaching Koma's parked van outside Amelia's house, and that
the accused got out for a few moments and then got
back into the car.
This would probably have been to cock his pistol ready to fire it
Again, it could have been denied because it
was further evidence of
premeditation.

The
accused denied the testimony of Cheseho (PW4) and Khopiso (PW6) who
both said that 'Malapane was standing by the passenger door
of the
van talking to Koma, who was sitting inside on the driver's side. The
accused's version was that 'Malapane was sitting inside
the van
kissing and cuddling with Koma who had pulled her dress up and
exposed her thigh. Cheseho and Khopiso were strongly cross-examined

about this and both remained unshaken and adamant that 'Malapane was
in fact standing outside the van at the time.

The
accused's version to some extent supported his claim that he was so
provoked by what he saw in the van that he lost control
and started
shooting. But, of course, that would never have happened if he had
not taken a gun with him in the first place, and
it tends to make his
claim less credible.

However,
there was the unexplained fact that the deceased Koma was also
carrying a loaded pistol. The accused related that he had
seen Koma
with the gun on a previous occasion when the accused and his witness
Teboho Serobanyane (DW2) were at a place called
the Speedy Five Star
restaurant in Maseru East at the beginning of this

23

year They
met the deceased Koma's wife and a man called Tejane who tried to
persuade Mrs Koma to go home with him. She refused and
eventually got
a lift home with the accused When they arrived at home Koma appeared
outside with a gun and fired it into the air,
not at anyone in
particular

None of
the witnesses agreed with the accused that Koma pulled out a gun when
he got out of the van at Khubetsoana. This was the
accused's initial
defence, that he had to fire first in self-defence. However, after
that the accused chased Koma firing at him
repeated from behind There
was no longer any question of self-defence then. The accused
maintained that he had to keep firing so
as to prevent Koma from
turning round and taking a shot at him But he also admitted that Koma
never actually tried to shoot at
him, so that explanation is not
credible.

According
to the accused, when Koma fell down near the streetlight he was still
holding the pistol in his hand However, Cheseho
(PW4) stated that
Koma did not produce a gun at all. Mrs Qhobosha (PW5) went out of her
house to look at the body of Koma and she
did not mention seeing any
gun. Nor, indeed, was she questioned about it in cross-examination,
which she certainly ought to have
been since the accused was going to
make this allegation in his defence.

Both of
the police officers, Tpr Mahanyele (PW1) and W O Ntsele (PW7), were
certain that when they arrived at the scene at around
9 00 p m. they
found the pistol still in its holster tucked into Koma's waistband
and

24

loaded
with live rounds The gun was cocked but it had not been fired, and it
would appear that it had not been taken out of its
holster. The
accused suggested that somebody had interfered with it and put it
back into the holster He claimed as well that somebody
had moved
Koma's body But there was no apparent reason revealed for doing this
and no evidence at all to substantiate it. I cannot
find any credible
evidence that Koma's pistol was ever produced that evening nor that
it was a visible threat of any kind to the
accused. But clearly Koma
had the pistol with him and it seems that the accused knew that Koma
might be carrying it. Perhaps that
was why the accused himself was
armed and why he may have stopped to cock his gun before approaching
Koma who was sitting in the
van However, the accused did not say
this.

The
prosecution witnesses were cross-examined at length and their
testimony was strongly challenged, but they all remained unshaken

throughout. This was specially so with the prosecution's main
witness, Cheseho (PW4) He showed no apparent signs of nervousness
or
agitation. He described the events simply and in a straightforward
and convincing manner. I was impressed by him as being a
witness of
the truth.

I do not
believe that there was any question of the accused acting in
self-defence The deceased Koma did not produce his gun and
he made no
attempt to attack or to threaten the accused. He merely tried to
intervene in a normal way to prevent the accused from
assaulting
'Malapane outside the van, and he got shot at for his pains.

Having
received at least one bullet wound at the van, Koma tried to escape.
He was apparently rather over

25

weight as
well as injured and so he could not move fast. The accused is tall
and looks fairly fit. I doubt whether he had any difficulty
in
staying close behind Koma while he continued shooting at him.

The last
shot was no doubt under the streetlight outside Mrs Qholosha's house.
That was the fatal shot, fired into the back of Koma's
head after he
had fallen down helpless with several other wounds already
incapa­citating him Mrs Qholosha said that she saw
the accused
standing over Koma and firing his gun downwards at him. I can find no
good reason to doubt her testimony about this.

The
accused admitted that he pursued Koma and kept shooting at him until
his ammunition had all been expended. Having given up the
obviously
unacceptable story of self-defence, the accused claimed that he was
provoked and angered by the sight of Koma and 'Malapane
kissing and
cuddling each other This was too much for him on top of all the
previous information that he had received of illicit
meetings and
expensive gifts.

If the
accused did actually believe what he was told, and what he claimed he
saw at the scene, then I would agree that he had some
reason to
display jealousy and to feel provoked. In law, under s.3 of the
Criminal Law (Homicide Amendment) Proclamation, 1959
(No 42/59), it
is a partial defence to a charge of murder if the accused kills
someone in the heat of passion caused by that person's
sudden
provocation, and before there is time for his passion to cool. This
is not a complete defence but it reduces the capital
offence of
murder to

26

a
conviction of culpable homicide

Mr.
Maqutu for the defence in fact submitted that the Court could convict
the accused of culpable homicide on this particular ground.
However,
it is not quite as straightforward as that. The provocation has to be
"sudden" and there has to be a complete
loss of control by
the accused. That would clearly not be the case if there was an
element of planning or premeditation in what
the accused did.

In this
case the accused went out armed with a loaded pistol and ho spent
several hours deliberately and openly enquiring after
and searching
for his wife. He followed behind Koma's van on the same mission. It
is clear that the accused was not only expecting
trouble at the time
but he was actually out looking for trouble. Thus, any provocation
that he may have felt was not just something
that occurred suddenly
and in the heat of the moment. It was rather a feeling that had been
building up all day, and indeed probably
for some time before that
day

Even if
the accused is believed with regard to his allegation that he found
the two kissing each other in the van, it is apparently
the sort of
thing that he was expecting to find and so it was not likely to have
come as a particular surprise to him. This could
hardly be described
as "sudden provocation",furthermore the evidence indicates
that the accused was well aware of what
he was doing at the time of
the shooting. It was not a case of "seeing red" and losing
complete control

27

of
himself In my opinion the defence of provocation is not available to
the accused with regard to the shooting of Koma.

The next
question to be decided is whether or not the accused intended to kill
Koma and 'Malapane There are two types of intention
known to law.
There is first the obvious actual intention (dolus directus) in its
ordinary grammatical sense That is, that the
accused meant to do the
act with which he is charged or, at least, that he foresaw the
unlawful act as a certain consequence of
his actions.

Secondly
there is what is known as the legal intention (dolus eventualis) of
an accused person That is where he does not mean to
cause a
particular result, such as death, which has resulted from his
conduct, but there is an appreciation or understanding by
the accused
that his actions entail a risk to life, and there is a recklessness
on his part as to whether or not death results
(see S.v Sigwahla
1967(4) SA 566 (AD)).

With
regard to the shooting of 'Malapane (count 2), I am not satisfied
that there was proof beyond reasonable doubt that the accused

intended to kill her It seems more likely that it was Koma whom he
was after at the time and there is a possibility that 'Malapane

unfortunately got in the way when the accused started to shoot at
Koma

But the
accused's action was clearly unlawful for they were all standing
close together at the time and there was a distinct possibility
of
hitting her with a stray bullet which he must have realised.
Consequently

28

I
consider that the proper verdict with regard to the killing of
'Malapane is one of culpable homicide. The The Assessors agree
with
this

Turning
now to the shooting of Koma (count 1), there is some evidence of an
actual intent to kill him because the accused went searching
for him
with a loaded gun which he knew how to use. The accused then pursued
Koma and shot at him when he tried to escape at the
van and further
away when he ran towards the other street­light round the corner,
and when he was down on the ground. I have
no doubt that, at the
time, the accused intended to shoot and to seriously injure Koma. But
I feel a slight doubt that the accused
had then formed an actual
intention to kill him.

However,
I am in no doubt at all that, at the time, the accused was well aware
of the possibility and the risk of killing that resulted
from this
repeated firing of the gun, and I find, too, that there was an utter
recklessness on his part as to whether or not death
did ensure
Consequently I find that the accused had a legal intention (dolus
eventualis) to kill Koma, and the offence committed
by him on count
one was therefore murder.

Because
of the particular circumstances of this case, and the finding which I
have just made, I am now going to consider the question
of
extenuating circumstance: I am of the opinion that counsel have
already said all that can be said or argued, and that I have
before
me more than sufficient material for a finding to be made at this
juncture (see Ntjanyana Phakoe v R. 1963-66 LLR 140 (C.A.)).

29

I have
already held that there was not sufficient evidence of provocation of
the accused by Koma which would have reduced the offence
from murder
to culpable homicide However, I have explained that there are very
special requirements in law for the type of provocation
that must be
proved in such cases.

In this
present instance I have taken an overall view of the evidence, and
particularly of the lengthy explanation given to the
Court by the
accused himself of his conduct and of his very strong feelings during
the period leading up to the shooting incident,
as well as at the
actual time of the shooting.

From all
this I have come to the conclusion that there is evidence that the
accused actually felt con­siderably provoked, in
the ordinary
way, and that a reasonable person, in similar circumstances and
conditions, might indeed have cause to feel a degree
of provocation.
Of course, this was no justification at all for what he did, but
nevertheless I am of the opinion that there were
extenuating
circumstances for what he did and I now so find. The Assessors are in
agreement with this.

Accordingly,
on count one, with regard to the killing of Teboho Koma, the accused
is convicted of murder in extenuating circumstances.

On count
two, with regard to the killing of 'Malapane Lethunya, the accused is
convicted of culpable homicide.

P.A.P.J.ALLEN

JUDGE

16th
December, 1987

Mr
Mdhluli for the Crown

Mr.
Maqutu for the defence

30

SENTENCE

The
accused is aged 33 years and he is no longer married because his wife
was one of the persons whom he killed. In making a finding
that there
were extenuating circumstances in the killing of Koma I have taken
into account the element of provocation which I still
bear in mind
The accused is a first offender.

This was
a very bad case in which the accused shot his wife and then emptied
the contents of the magazine of an automatic pistol
into the man he
believed to be his wife's lover. The accused is to some extent lucky
to escape the extreme penalty and I cannot
take a much more lenient
view of his case than that

On count
1 the accused is sentenced to imprison­ment for 9 years.

On count
2 the accused is sentenced to imprison­ment for 5 years. The two
sentences are to run concurrency

P.A.P.J.ALLEN

JUDGE

16th
December, 1987

ORDER

The
pistol and two packets of ammunition (exhibits 1, 2 and 3) are to be
handed over to the Maseru Police for disposal.

P.A.P.J.ALLEN

JUDGE

16th
December, 1987