CRI/T/2/66

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

MOTLASELO
JOHANNES MOLAPO

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 5th day of January, 1987.

The
accused is before me on a charge of murder in that upon or about the
4th April, 1985 and at or near Thibella in the district
of Maseru he
unlawfully and intentionally killed one Ezekiel Bashemane. He has
pleaded not guilty to the charge.

At the
commencement of the trial, Mr. Ramolibeli who represents the accused
in this trial informed the court that the defence admitted
the
depositions of W/0 Fuma Sgt. Mohau, Likeleli Morakabi, Nkhala 'Neko,
Captain Motebang Ramashamole, Pte Mochesane, D/Tpr. Makhakhe,
Dr.
Taoana and T.M. Moahloli who were, respectively, P.W.1, 2, 4, 5, 7,
9, 10, 11 and 12 at the proceedings of the Preparatory
Examination.
Mr. Lenono for the crown accepted the admissions and the depositions
of P.W.1, 2, 4, 7, 9, 10, 11 and 12 at the Preparatory
Examination
became evidence, in terms of the provisions of S.273 of the Criminal
Procedure and Evidence Act 1981. It was unnecessary,
therefore, to
call the deponents as witnesses in this trial.

The
evidence of D/Tpr Makhakhe who was P.W.10 at the Preparatory
Examination, was that he was a member of the C.I.D. On the evening
of
4th April, 1985 he heard gun reports from Thibella location. As a
result, he proceeded to the location where he found a crowd
of people
and the dead body of the deceased

2

next to
Morakabi cafe. He examined the body for injuries and found that it
had three bullet wounds on the left side of the abdomen.
On
inspecting the surroundings he found three shells of a rifle. He took
possession of the shells which were handed in as exhibits
at the
Preparatory Examination.

The
evidence of D/Tpr Makhakhe that he found the deceased dead in the
street of Thibella location with three bullet wounds on the
abdomen
was confirmed by Pte Mochesane (P.W.9 at the Preparatory Examination)
who also testified that he accompanied the body when
it was conveyed
to the mortuary and it sustained no further injuries.

The
evidence of Dr. Taoana who was P.W.11 at the Preparatory Examination
was that on 9th April, 1985 she car­ried out an autopsy
on a dead
body of a man. The body was identified before her as that of the
deceased by W/0 Fuma and Sgt. Mohau. That was confirmed
by W/0 Fuma
and Sgt. Mohau who were, respectively, P.W.1 and P.W.2 at the
Preparatory Examination. The medical doctor found that
death was due
to massive abdominal bleeding resulting from bullet wounds on the
stomach. I am prepared to accept as the truth the
un­challenged
evidence of Dr. Taoana that the deceased had died as a result of
injuries found on his abdomen.

The court
heard the evidence of P.W.2, L/Sgt Mohlahatsa, who told the court
that he and the deceased were members of the Royal Lesotho
Mounted
Police (R.L.M.P.). They both lived at the old police quarters in
Maseru. On the evening of 4th April, 1985 at about 7.30
p.m., the
deceased requested him to accompany him to Thibella location where he
wanted to buy some meat at Morakabi Cafe. They
proceeded to the cafe
and were not armed with anything.

As they
entered the location, P.W.2 and the deceased met four (4) men who
were walking in the opposite direction. They greeted those
men by
saying"Lumelang banna" (loosely translated "hello
men"). Those men appeared to be dissatisfied by the
greeting for
they murmured something they could not follow. P.W.2 and the
deceased, however laughed and ignored

3

those
men. When they came to the cafe, P.W.2 and the deceased found that it
was already closed. They went into the adjacent room
and inquired
whether there were some cooked chicken legs. They were told that
there were none and so P.W.2 and the deceased left.
After going
through the gate of Morakabi cafe, P.W.2 noticed there was a person
coming behind him and the deceased. When he came
close to them that
person said : "I am the one". P.W.2 and the deceased then
began walking slowly so that they could
follow why that person was
saying those words. That person walked passed them still saying "1
am the one". Imme­diately
after walking passed P.W.2 and the
deceased,that person stopped, turned towards them and produced a
rifle from under­neath
his blanket. He was still saying the
words: "I am the one". P.W.2 and the deceased then stood
still. By the aid of the
street light P.W.2 recognised that person as
the accused.

When the
deceased tried to by-pass him, the accused opened fire with his
automatic rifle and the deceased dropped to the ground.
P.W.2 took to
his heels and returned into the house from where they had inquired
about the cooked chicken legs. He reported to
the women who were in
the house that the deceased had been shot. In as far as it is
material, the evidence of P.W.2 was corroborated
by two of the women
who were in the house viz. Likeleli Morakabi and Nkhala 'Neko. They
were respectively P.W.4 and 5 at the Preparatory
Examination.

P.W.2
eventually went to Tea Blues restaurant in search of assistance. He
was helped by one Ntholi who con­veyed him in his
vehicle to the
police headquarters where he reported to Lt. Col. Makoaba. Both
Ntholi and Lt. Co. Makoaba were, however, not called
as witnesses in
this trial.

It is
common cause that on the day in question, 4th April, 1985, the
accused, P.W.3 Corporal Makhabane Kholopane, Pte. Mochesane
and Pte.
Mphaphathi were assigned for duty at the International Airport at
Thota-Moli.when they knocked off duty at Thota-Moli,
the accused ,
Pte Mochesane and Pta. Mphaphathi decided to go for drinks at the
home of P.W.1, Alice Mats'osa, at Thibella Location.
They found
Corporal Kholopane

4

already
drinking at P.W.1's place. Although the accused claimed that they
were drinking pineapple and bottled beer P.W.1 was positive
that she
served the accused and his compa­nions with only pineapple and
not bottled beer. That was, indeed, confirmed by P.W.3.

I am
satisfied, therefore, that the accused was not being honest with this
court when he said he and his colleagues were taking
bottled beer at
the home of P.W.I on the evening in question.

Be that
as it may, it is common cause that when the party eventually left
P.W.1's house, the accused remained behind and was the
last to leave.
P.W.I confirmed his evidence that he remained borrowing some money
and she actually lent him M10. After the accused
had left her house,
P.W.1 heard a gun report but she did not go out of the house to find
what it was.

According
to P.W.3, he left P.W.1's place after Pte. Mochesane and Pte.
Mphaphathi had left. When he was about 50 paces away, he
saw that the
accused was also following him. Thereafter he noticed that the
accused was having an altercation with another man.
He returned and
intervened by separating them. That man then left and when he joined
the tarred road from Seputana robbots to the
airport, took the
direction towards the airport. P.W.3 said the deceased was known to
him. He was positive that he was not the
person who was having an
altercation with the accused.

Having
separated the accused and that other man, P.W.3 left and continued on
his way home. After passing Seputana robbots he heard
the report of
an automatic rifle from the direc­tion of the location. He was
worried about the accused and so he returned torwards
the location.
On the way he met the accused who informed him that he had already
shot a person.

The
accused's explanation was that he had been threatened with something
that looked like a firearm by three people and he shot
one of them.
On his (P.W.3's) suggestion they went

5

and
reported the incident to Captain Ramashamole. That was confirmed by
the Captain himself according to whose testimony he seized
accused's
rifle, examined it together with its maga­zine and found that
three bullets had been fired from the rifle. He subsequently
brought
the accused to the police charge office and kept the rifle which he
later handed in as exhibit at the Preparatory Examination.

The
evidence of T.M. Moahloli, the magistrate, was that on 9th April,
1985 the accused appeared before him wishing to make a statement.
He
administered the usual warning to the accused and asked him
preliminary questions the replies to which were recorded as in the

reneoed form. The accused was allowed to make his statement which the
magistrate reduced to writing at the time of making.

In his
statement, Exh "B", the accused told the magis­trate
that on the evening in question, 4th April, 1985, he left
P.W.1's
place at the location on his way home at the R.L.D.F. headquarters.
As he passed next to Morakabi cafe he met three men
who inquired
about his names. He ignored those men and continued on his way home.
After he had walked passed them those men asked
why he did not reply
to their question. He then told them that he was a soldier and asked
them what it was that they wanted. Shortly
thereafter, he looked back
and noticed that there was a person following him. That person was
raising up his hand and about to
strike him.

As the
activities of the insurgents were, at that time, rife in the country
particularly in the locations, the accused believed
that the person
who was following him was an insurgent about to kill him. He
immediately removed his rifle from the shoulders and
shot at that
person in self-defence. P.W.3 then came to him and asked what the
matter was. He (accused) explained what had happened
and on the
suggestion of P.W.3 they went and reported to captain Ramashamole.

Considering
the evidence as a whole, it seems to me that it is not really
disputed that the accused is the person who on the evening
of 4th
April, 1985, shot and killed the deceased at Thibella location. The
only question is whether

6

or not he
did so in self-defence.

In his
confession to the magistrate, the accused stated that only one person
was attacking him on the night in question. He has
repeated this
statement in his evidence before this court. But according to the
evidence of P.W.3 the accused's explanation was
that three people
were attacking him when he shot one of them.

I
observed P.W.3 as he testified before me. He impres­sed me as a
truthful witness. If the accused's evidence that only one
person had
attacked him were to be believed, it would appear that he lied to
P.W.3 in saying three people had attacked him. The
evidence of P.W.2
is, however, that he was with the deceased when the accused shot him
without any pro­vocation at all. P.W.2
impressed me as a truthful
witness. I am prepared to accept his story as the truth and reject
the accused's version as false on
this point. That being so, I have
no alternative but to come to the conclusion that the accused's claim
that he shot the deceased
in self-defence is yet another of his lies.
I reject it as false and accept as the truth P.W.2's evidence that
the deceased was
shot and killed in the manner he described.

am
convinced that in shooting the deceased on the upper portion of his
body, the accused realised that death was likely to result.
He
nonetheless acted reckless of whether or not it did occur. That
granted, there is not the slightest doubt in my mind that in
shooting
the deceased as he did, the accused had the requisit subjective
intention to kill, at least in the legal sense.

In the
premises, I find the accused guilty of murder as charged.

My
assessor agrees with this finding.

B.K.
MOLAI

JUDGE.

5th
January, 1987.

For Crown
: Mr. Lenono,

For
Defendant: Mr. Ramolibeli.

7

CRI/T/2/86

EXTENUATING
CIRCUMSTANCES

Having
convicted the accused of murder, I am now enjoined by S. 296(1) of
the Criminal Procedure and Evidence Act 1981 to state
whether or not
there are any factors connec­ted with the commission of the
crime,tending to reduce the moral blameworthiness
of his act.

In this
regard there was evidence that shortly before he killed the deceased,
the accused had been drinking pine­apple which
is an intoxicating
beverage. He must have, there­fore, been some what intoxicated.
Now, as Holmes, J.A. once put it in S.v.
Ndhlovu (2) 1965 (4) S.A.
692 at 695:

"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 things which when
sober he would not do.

I am
prepared to accept that by reason of accused's intoxication the
question whether or not there are any factors tending to reduce
the
moral blameworthiness of his act must be answered in the affirmative.
The proper verdict is therefore that of guilty of murder
with
extenuating circum­stances.

My
assessor agrees with this finding.

SENTENCE:
9 years imprisonment.

B.K.
Molai

JUDGE

5th
January, 1987.