Rex V Letsie (CRI/T/0008/2023) [2024] LSHC 71 (25 April 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                CRI/T/0008/2023

 

In the matter between

REX                                                                               CROWN     

 

AND 

 

BULARA LETSIE                                                           ACCUSED                                                                                 

 

Neutral Citation: Rex v Bulara Letsie [2023] LSHC 71 Cri (25^th April 2024).

 

CORAM                :         HLAELE J.

ASSESSORS        :         MS KHATI AND MR CHAKA

HEARD                :         14^TH FEBRUARY 2024

DELIVERED        :         25^TH APRIL 2024

 

SUMMARY: The accused acted in self-defence. The attack he used to thwart the deceased’s attack was moderate. As a result, the accused is found guilty of culpable homicide.

 

 

ANNOTATIONS:

CITED CASES:

1. R. v Attwood 1946 A.D. 331 at p. 340.
2. R v Morale (CRI/T 45 of 94) [1994] LSCA 174 (29 November 1994).
3. R. v. Krull 1959 (3) S.A. 392 (A.D) at p. 399.
4. S v Litako and others (584/2013) [2014] (16 April 2014).
5. R v Ndera 1955 (4) S.A 182 (A.D).

 

STATUTES

1. Criminal Procedure and Evidence Act,1981.

 

ARTICLES

1. See also the critical analysis on the cases by Monye -Stephen and Monyakane, Mampolokeng. 2018/08/16- “The Legal implications of S v Ndlovu and Litako v S on the South African law of hearsay evidence: A critical overview’’. 2016 (3) SACJ 308. See also LUTCHMAN, S. S v Litako 2014 SACR 431 (SCA): A clarification on extra curial statements and hearsay. PER [online]. 2015, vol.18, n.2, pp.430-448.ISSN1727-378http//dx.doi.org/10.4314/PELJ.V.1812.12

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

HLAELE J

[1] INTRODUCTION

1.1 The accused was charged as follows:

THAT:

BULARA LETSIE a m/m aged 27 years of H/M MOHLALEFI BERENG U/C NTHATI BERENG at Moru-Motŝo Ketane.

 

(HEREINAFTER CALLED THE ACCUSED)

IS GUILY OF CONTRAVENING SECTION 40(1) OF THE PENAL CODE ACT NO.6 OF 2010 READ WITH SECTION 40 (2) THEREOF

In that upon or about the 27^th of December 2017 at or near Moru-Motŝo Ketane in the district of Mohale’s hoek, the said accused did perform an unlawful act or omission with the intention of causing the death of NOHANA MASOLENG, such death resulting from his act or omission, the said accused did thereby contravene the provisions of the Act as aforesaid.

 

[2] SUMMARY OF EVIDENCE

CROWN’S EVIDENCE

2.1 PW1 was Mats’ana Masiphole whose evidence was that the events of this case happened immediately after the 2017 Lesotho elections. He was a candidate to be elected in those elections. He however did not win. But immediately after the elections he decided to host a feast to thank the people who had voted for him. The feast was to be held on the 26^th December 2017. A day before the feast while the villagers of his village Moru-Mots’o were at the witness’s homestead preparing food for the following day’s feast, the witness realized that the deceased did not attend the preparations whereas he was still at home at the time and this seemed strange to the witness as him and the deceased’s family were close. The accused and his wife were present during the preparations.

2.2 On the day of the feast the chief had requested the witness and the people who were going to perform political songs to begin their performance at his place.  He was not in good health and would not be able to attend the celebrations. The performers did indeed accede to the chief’s request. They gathered at the chief’s place on that day and began their performances.

2.3 At the end of the performances, while preparing to go to the feast, the witness was talking to the chief when he heard a fight ensuing behind him. As he looked back behind the crowd, he saw sticks being raised. He then pushed his way through the crowd to see what was happening. He saw the deceased and the accused’s sister tussling to get hold of a knife. The witness took the knife from them. On the other side he saw the accused being held tight by some ladies. The white shirt he was wearing was ragged. The witness intervened. As he was intervening, he saw that the deceased had a wound on the head. He then removed the deceased from that place and drove him to his (deceased’s) house.

2.4 After driving the deceased to his home, the witness telephoned the Ketane police who then instructed him to convey both the accused and the deceased to the police station. He passed the police’s message to the accused and the deceased. The deceased refused to go. The accused was willing to go, however they could not go without the deceased. Having failed to convince the deceased to go to the police, the witness went back to the feast.

2.5 The following morning the witness saw the deceased leaving the village taking the Ketane direction by foot. After a while the witness saw the accused also leaving the village and taking the Ketane direction as well, but on horse-back. As he saw this with other elderly men in the village they got the apprehension that something wrong might happen if accused meets deceased on the way. So, the witness made a phone call to a couple of people who live in the village called Thabana-Ts’ooana where deceased was going to pass through. He wanted to alert deceased that accused was following him. One man called Shakhane got the message and followed deceased and accused on a horse-back. The witness also followed them. When the witness was at the place called Matebeleng, he saw Shakhane and accused coming his way. Accused was carrying a stick. When he met with them the accused told him that he met with the deceased and they fought and that they left the deceased back there.

2.6 The witness then found it prudent to go back to the village and convey the news to the chief as well as seeking assistance. So they went back to the village and reported to the chief. They then took a horse to carry the deceased with as they heard that he was not in a good state. They got to the place where the deceased was and they found him still alive but in a bad condition as he noticed that he had wounds on the head. They found him lying down under the shadow of a shrub. They carried him on to the horse and carefully drove the horse as the terrain there was bad. They walked a short distance pulling the horse while the deceased was on the horse with one other person who was holding him as they went. Within a short distance they saw that the deceased had passed on. The witness reported this to the chief and the police.

2.7 The arrangements for carrying the deceased’s corpse to the village were made as the police were unable to get to the scene due to unavailability of a police vehicle at the time. He was carried on a stretcher to the village. The following day the corpse was carried still on the stretcher to a place called Ha-Thetsinyane. It was police’s instruction as that was the place where the vehicle road ends. They had been directed by the police to convey the corpse there for the police to examine it. The police did indeed examine the corpse and conveyed it to the mortuary.

2.8 PW2 was Shakhane Shakhane. His evidence was that on the day of political celebrations, as he and the other performers were leaving the chief’s homestead they were passing by the deceased’s house when he saw him coming out of his house and joining the performance. Immediately thereafter he heard a fight ensuing. When he heard that he jumped and held the stick that the accused had held up to hit the deceased with. The deceased was already on the ground having fallen.

2.9 After that the accused and deceased got separated by some people who were holding them apart and the deceased was guided to his home.

2.10 The following day, the witness went to the fields early in the morning. While he was at the fields ploughing, he saw the deceased passing by walking. He later saw the accused also passing by on horse-back in a hurry. Some moments later he saw one Thaabe Letsie passing by. Moments thereafter one Raboshabane Letsie also passed by the field going in the same direction. Moments after that Edward also passed by the field. Thaabe and Raboshabane are the accused’s siblings while Edward is their close relative.  When seeing that the brothers were taking the same direction as the deceased, he suspected that something was amiss, he then left what he was doing, rode his horse and followed after them. He passed the three brothers who were on foot on the way. After passing a village called Thabana-Ts’ooana, he found accused’s horse unattended. He then went by foot to where he thought the accused and the deceased could have disappeared to.

2.11 He saw the accused and the deceased from afar and he went closer to them. When he got close to them the three brothers were also closely behind him.

2.12 He realized that both the deceased and the accused were seated down. He observed that they both had blood on their clothes. He however could not get too close to them to see who got injuries as the three brothers were fast approaching and he wanted to plead with them to not fight the deceased. The witness then asked the accused to stop his brothers from approaching where accused and deceased were.  The accused acceded to the request and stopped them. The witness was afraid that if the brothers could get close to the deceased, they would probably fight him.

2.13 The witness then called out the deceased’s name and told him to stay right where he was for. He had noticed that he was unable to walk as when he saw the brothers approaching, he tried to stand up, however, he faltered and sat back down. The witness could not reach where the deceased was, for he was preventing the three brothers from getting to the deceased. Thereafter the witness and the brothers went to the chief’s place. When they got to the chief’s place, he handed the Mohloare stick that the accused had told him he had hit the deceased with to the chief. The accused had also told the witness that the stick belonged to the deceased. Thereafter, the witness went back to the field. When he got back to his village he heard that the deceased had passed on.

2.14 The cross examination of this witness discussed a spear which the witness never mentioned in his evidence in chief. The witness showed that he did not know anything about a spear and that he never saw a spear on the accused. The defence’s version that was put to this witness was that the deceased was the one who started the fight on the day of political celebrations unprovoked by the accused.

2.15 This witness showed that indeed accused did not provoke the deceased as he was one of the performers on that day and was actually leading one of the lines. It was put to this witness that the reason why deceased attacked accused on that day was because deceased wanted to get rid of accused in order to get his (accused’s) wife as deceased had a child with accused’s wife. The witness’s response was that he did hear about such.

2.16 The version of the accused that was further put to this witness was that if it was the accused’s intention to kill the deceased, he would not have obliged to the witness’s request to stop his brothers from approaching the deceased. The witness agreed that indeed that was so. The witness also did not refute the accused’s version that it was the deceased who started the fight on that day as he was the one who hauled stones on the accused until he had to get off his horse. On re-examination however, the witness showed that he did not know who started the fight on the that day as he was not present when the fight started. His evidence was that the day he saw the deceased provoke the accused was the day of political celebrations.

2.17 PW3 was NO.11751 L/S Ntsime who was the investigator of this case. His testimony was that on the 27^th December 2017, there arrived the accused at Ketane Police Station where the witness was stationed reporting that he was there to surrender himself to the police for killing Nohana Masoleng. He also handed to him a Mohloare stick which he told him he used in the killing of the deceased. He preferred a charge of murder on the accused and arrested him.

2.18 On the 28^th December 2017, he proceeded to Ha-Rantoetse where he was going to examine the corpse of the deceased. When he arrived at that place, he examined the corpse of the deceased and observed that it had five open wounds on the head and weal’s from the shoulders down to the ribs and thighs. After examining the corpse, he conveyed it to the mortuary.

2.19 PW4 was Doctor Moorosi, a pathologist. He was not the doctor who carried out the pathology examination. He testified that the contents of the post mortem report showed that the post-mortem was carried out at Nts’ekhe Hospital and it showed the cause of death as bleeding into the skull. It also showed that the corpse had fracture of the frontal bone meaning there was a form of force applied on the head of the deceased which could have caused such injuries. The fracture could have been caused by a blunt or sharp object like a stone or a stick.

2.20 On cross-examination, the version of the accused that was put to this witness was that it is sound when performing a post-mortem to measure wounds and take photographs of the wounds.  The opinion of the pathologist should be based on objective facts which include using a post-moterm album to prove what his opinion is based on.  The witness’s response was that it indeed is sound to do so, however, the equipments for taking photos are not always available. But as the photos are taken only to enhance the clarity of what is written on the post-mortem report, their nonavailability does not make the report unreliable. Hence the opinion of the pathologist does not get invalidated by the unavailability of the post-moterm photos. 

2.21 The accused’s version was further that the witness would not be able to establish the cause of death by just looking at the post-mortem report. That he should have been present during the post-mortem examination to be able to establish what caused the deceased’s death. The witness’s response was that usually people who sustain a fracture of the skull, lacerations on the head as well as bleeding into the skull tend to die.

2.22 Admitted statements

Were the following;

The statement of L/S Leina marked ext 3.

The statement of Moiketsi Masoleng which was an identifying statement and was marked ext 4.

 

[3] DEFENSE'S EVIDENCE

3.1 DW1 was Lesibu Letsie who is accused’s younger brother. His evidence was that on the day of political celebrations he was watching the performances while sitting over a kraal. He then heard noise coming from where the singing and dancing was. He immediately rushed to that place and found accused’s T-shirt torn. He realized that the accused and deceased had fought. Deceased was holding a knife with his right hand. The witness held the deceased’s right hand and they struggled over the knife. The witness’s sister ‘Malekholo Ntsane managed to get hold of the knife and took it. Thereafter deceased went to his home. PW1 telephoned police and the police gave an instruction that deceased should be arrested. Deceased refused to be taken to the police.

3.2 The witness further testified that sometime in 2014 or 2015 his elder brother Theko Letsie had an altercation with the deceased.  This is after the deceased had told Theko that they were cowards in their family as they were fighting him after he had honoured them by giving them a heir. The reason deceased was saying that was because he (deceased) had a child with accused’s wife. Theko and deceased fought on that day whereby deceased even pulled out a knife. The witness himself struck deceased with a stick and they were eventually separated by people who were with them. Due to that incident the witness, Theko and deceased were directed by the chief to go to Ketane Police Station.  Whereat they were reprimanded by the police. They were told that if deceased would fight them again they would have to report him to the police.

3.3 The witness’s further evidence was that due to what the police had told them to do if deceased would fight again, in the morning of the 27^th December 2017 he found the accused saddling his horse. He told him that he was going to report deceased at Ketane Police in accordance with police directive. The witness as well as his other two brothers followed after the accused to the Ketane police to report what deceased had done the previous day.

3.4 When he got to Thabana-T’sooana, he saw accused’s horse without its owner. He then proceeded to look around, he went across two ridges and saw PW2. PW2 immediately told him to stand right where he was and to never get closer for there was a problem there as accused and deceased had fought.

3.5 After that PW2 drove them to the village. The witness and other village men were then directed by the chief to go and convey the deceased home and they complied. A stretcher was made and deceased was placed on the stretcher and tied to the stretcher by ropes. On the way back home there was the time when one of the people who were carrying the stretcher slipped. The deceased fell by the head on the area which had small stones gathered together. They prepared the deceased and put him back on the stretcher and conveyed him home.

3.6 Under cross-examination the crown’s version was that the witness’s evidence was a fabricated story, intended to protect his brother (the accused) from going to prison. That the trend he has exhibited is that he always gets involved to protect his brothers whenever they are in danger. For example; starting with the incidence of 2013/2014 where his other brother Theko was fighting with the deceased and the witness got involved in the fight by striking deceased with a stick. Another incident being that of the day of political celebrations whereby when the witness saw the accused fighting with the deceased, he ran from the kraal where he was sitting to where the fight was taking place to protect his brother (the accused). Even on the day when the witness and his brothers followed the accused, they did that to go and fight the deceased with the intention of protecting the accused.  They did not even have a referral letter from the chief referring them to the police. The witness responded that this was not true. That in 2013/2014 and on the day of political celebrations he was just intervening and not fighting. On the fateful day he was going to report the incident of the day of political celebrations to the Ketane police as he was directed by the police after the incident of 2013/2014.

3.7 Adv Fuma who represented the crown read the witness’s statement which he gave to the police when the events of this case were still fresh in his mind. The essence of that statement was that when the witness, the accused and their other two brothers saw the deceased leaving the village they met and conspired to follow and fight him. The statement continues to say the accused took a spear and followed the deceased. The witness responded that the statement might not be correct since it was not read back to him after it was written down.

3.8 DW2 was Bulara Letsie (the accused) who in the same vein, started his evidence by narrating the events of the day of political celebrations. As his pre fight evidence in all material facts is the same as that of the other witnesses who came before him, I will start his evidence where he told the court that when he and the performers were going to the chief’s place, he saw the deceased sitting outside his home. Performances were made and as the performers were going back to the feast the accused was leading one of the performance lines. As accused looked to his right side, he saw the deceased coming towards him holding a nylon stick and when he got to him he said ‘kena’ which means fight.

3.9 The deceased struck the accused with his stick. The accused had already raised his stick while he was singing and he also struck deceased twice with the stick and deceased fell. The people intervened and separated them. Accused realized that the deceased had taken out a knife. Deceased was eventually taken to his house. After that accused went to his home and asked his wife whether she sees what she had caused and his wife asked for forgiveness.

 

3.10 When asked what his wife was apologizing for, he related a story of how he came to suspect that a child that his wife had in 2005 was not his but deceased’s child. He questioned the wife about the child and the wife cried.

3.11 His further testimony was that deceased was in love with his wife and wanted to kill him to get him out of the way so he could have his wife.

3.12 The beginning of his evidence about the 27^th December 2017 was in all material facts the same as DW1’s evidence.

3.13 His evidence was further that after passing the village called Thabana-Ts’oana he found the deceased holding stones and pelting them at him. The accused dismounted the horse and hid behind the bushes. When he saw deceased coming towards where he hid himself. He rose in a short while. Upon seeing him, the deceased insulted him and threw a stone at him. Accused also pelted a stone and hit him on the head.

3.14 Deceased approached closer and tried to strike accused with a stick. The accused however, disarmed and hit him with it on the buttocks.

3.15 Deceased asked for forgiveness, however, accused   started hitting him on the legs. After that they both sat down together. Then PW2 appeared and he asked him to stop his brothers from approaching the deceased. He stopped them.

3.16 From there the accused, PW2 and the three brothers went to the chief’s place. The chief directed the village men to go and fetch deceased home. He later heard that deceased had demised. Thereafter he went and surrendered himself to the police.

3.17 On cross examination, the crown’s version was that there was never an affair between deceased and accused’s wife. That, such a relationship existed only in the mind of the accused. According to the crown, the belief that there was an affair between accused’s wife and deceased stirred anger inside the accused towards the deceased and caused him to start a fight with the deceased on the day of the political celebrations as well as on the day he killed the deceased. The accused was steadfast and never shifted from the position that the deceased had such a relationship with his wife. She had even admitted to it by crying and apologizing when he asked her about it. The accused further responded that on the day of the political celebrations it was the deceased who started the fight as well as on the crime scene.

 

[4] THE CROWN’S CASE

4.1 In order to prove the guilt of the accused the evidence of PW1 only pointed towards a fight which had ensued between the accused and the deceased a day or so before his demise. PW1’s evidence was also instrumental in corroborating that of PW2 that the deceased was still alive when other people joined them at the place where the assault had taken place.PW1 was also corroborated by PW2 and the Police that it was through the instruction of the police that the corpse of the deceased was kept at the village for a day before the police could access it.

4.2 PW2’s evidence established and confirmed the stick fight that occurred between the accused and the deceased. In like manner as PW1 none of them proved who caused the fight.

4.3 PW1 witnessed the early exodus of the deceased towards the Ketane direction. In some space of time, the accused followed on horseback. His inquiry to the reason for accused’s purpose was met with an answer that he will tell him later.

4.4 What is crucial about his evidence is that he confirmed that upon his arrival the deceased was assaulted and the accused was the one who was likely to be the assaulter. There was no other visible person on the vicinity. He also excluded the accused’s siblings from being identified as part of the assault team. He made it clear that they headed his counsel not to join in the assault. He also confirmed that the deceased was already in bad shape at the time he arrived at the scene. What was lacking in the evidence of PW1 and PW2, was the testimony of what had occurred during fight that had resulted, firstly in the deceased being badly assaulted and secondly, his ultimate demise. 

4.5 The value of the Police investigator’s evidence was that the accused had handed himself to the police voluntarily. He had also handed in the stick which he said was the weapon he had used on the deceased which caused his death. I must state that the weapon was never exhibited in court due to administrative negligence of both the prosecution and the police under whose custody the weapon was. It is becoming increasingly a practice in criminal cases for weapons used in the crime not to be available to the court due to administrative glitches or negligence. This hampers the administration of justice. Both offices should be warned against this practice which is becoming a norm.

4.6 When the crown closed its case, the evidence which advocate Fuma had presented before the court was;

1. That the deceased and the accused had bad blood amongst them. This was due to the fact that the accused believed that the deceased had an adulterous relationship with his wife. This relationship resulting in the birth of a child who was being raised by the accused. Advocate Fuma submitted that this evidence proved that the accused had a motive to kill the deceased.

 

2. That in the morning of the fateful day, the accused had followed the same trail as the deceased. The accused was riding on horseback at high speed in order to catch the deceased.

 

3. An eye witness had arrived at the scene of crime shortly after what had transpired between the deceased and the accused.

 

4. The deceased was severely beaten and had blood all over him and the accused had blood stains too.

 

5. That the accused handed himself over to the police together with the weapon which he said he had used on the deceased.

 

 

 

6. No other person except the accused was present at the scene of the crime.

4.7 Thus, at the close of the Crown’s case, its case was, in as far as the cause of the death was concerned, circumstantial.

 

THE LAW ON CIRCUMSTANTIAL EVIDENCE.

[5] APPLICATION FOR DISCHARGE

5.1 It is prudent to state that at the close of the crown’s case Advocate Ntori on behalf of the accused applied for discharge of the accused. I however made a ruling that the crown had established a prima facie case against the accused and that the accused had a case to answer.

 

[6] DEFENCE’S CASE

6.1 A legal controversy arose concerning the admissibility of the evidence of DW1. During his cross examination, Advocate Fuma read to him the statement he had made to the police. I will commence with the contents of the statement before I proceed to its legal status.

6.2 In the statement, or rather the parts which advocate Fuma read to the witness, the witness had alluded to the fact that he, together with the accused and some of their siblings, had met at the morning of the fateful day. It was during their meeting, as the statement read, that these parties discussed the trip that the deceased had undertaken. They conspired to follow him with the intention to harm him.

6.3 The witness’s snap reaction to the statement was that the statement was not read back to him by the one who had penned it. I deliberately use the word “snap” to demonstrate the speed with which he was quick to respond to being confronted with statement. This reaction was not missed by Advocate Fuma who immediately picked issue with his reaction to demonstrate to the court that this witness was not reliable.

6.4 Two legal issues arise from this statement. The first is, in the light of the witness’s repudiation of it, what is its legal status? The second is, it being an informal statement against a third party, is it admissible against the third party, that is the accused? Put differently, can the court find that the accused conspired with his siblings to kill the deceased, based on the statement allegedly made by his brother?

6.5 It was established at the commencement of his evidence that DW1 is illiterate. He had not finished Primary school. A police officer who records a witness statement has the responsibility to establish the literacy level of such a witness. This gives the witness ownership of the statement.

6.6 There is no evidence before the court to contradict this witnesses’ assertion that he is not aware of the contents of the statement. I can only rely on his uncontroverted testimony that he indeed does not know the contents because they were not reread to him. Advocate Fuma’s cross examination failed to shift this witnesses’ disassociation with the contents of the statement.

6.7 The second legal controversy is regarding admissibility the statement. The controversy centered around whether extra-curial statements made by a third party are admissible against an accused person. Whereas the law is clear ambigiuos in relation to confession, the same cannot be said in relation to admissions. The case of R v Ndlovu[1] added paraffin to the fire. However, I consider the matter to be settled by the case of S v Litako[2].

6.8 On the strength of the case of Litako, I am of the view that the statement of DW1 cannot bind the accused. It had been Advocate Fuma’s contention that the law points specifically and directly to co- accused and not a third party. It was his view that DW1 is not a co-accused in this case, as such Litako is not applicable. My reading and interpretation of the law is that an admission is only admissible against the maker. The courts have shifted from the Ndlovu jurisprudence.

6.9 The inadmissibility of this piece of evidence leaves the evidence of this witness with the version of the accused that had at all times been put to the crown witnesses. This witness testified that the reason they had set out to go to Ketane was to report the fight or confrontation that had occurred between the accused and the deceased. This was due to the order that the police had made previously that whenever the families of the accused and of deceased had a fracas, either family should involve the police.

6.10 As stated above, when the accused took the stand, he recounted the version that his counsel had all along put to crown witnesses. The crucial evidence which this witness provided, which no other witness could testify on was what had occurred when they faced off with the deceased in the absence of anyone’s view. No eyewitness could recount the events other than the accused.

6.11 The version of the accused was that he dismounted his horse because the accused had stoned him off. This piece of evidence tallies with that of PW2 who had informed the court that he had been attracted to the scene of the crime by the absence of the accused on his horse.

6.12 Upon dismounting he hid himself behind a shrub, but soon feared that he had become visible to the deceased. He took the first strike. A stone throwing battle began and the accused admitted to hitting the deceased with a stone on the head. Deceased then approached accused with his stick and tried to hit the accused who disarmed him.

 6.13 A fight ensued which ultimately resulted in him disarming the accused. Upon disarming him he hit him on the buttocks with the stick, causing him to stumble and falter. He then hit him again and when he fell he hit him on the legs. They then had a chat wherein the deceased apologized. He rose again and hit the deceased on the legs probably aggrieved by the apology which confirmed his long-held suspicion that he committed adultery with his wife. It was then that PW2 and others found them. The deceased’s life was by this time hanging on a thread. He soon after met his death.

6.14 From the evidence of the accused, the death of the deceased resulted from his hands. The question that this court needs to answer is whether the death of the deceased can result in a conviction of murder.

6.15 At the close of the crown’s case, it had established that the accused was circumstantially, the cause of the death of the deceased. There being no other person who could have caused fresh wounds that were visible on the deceased when the other witnesses saw him immediately after the fight with the deceased. Thus, the crown had established actus reas.

6.16 The defence raised self-defence against the unlawfulness of the act. This charges the court to interrogate the defence in terms of the law, the evidence and the analysis of the two.

 

[7] SELF DEFENCE

7.1 In R. v Attwood[3]the requirements to be satisfied for self-defence are that an accused is entitled to an acquittal on the ground that he was acting in self-defence if it appears as a reasonable possibility on the evidence –

(a) “That he had been unlawfully attacked and had reasonable ground for thinking that he was in danger of death or serious injury, (Though there may be cases of lawful self-defence where the accused was originally the aggressor R. v. Ndara, 1955(4) S.A. 182 (A.D.) at 182 E.)”.

(b)that the means of self-defence which he used were not excessive in relation to the danger;

(c)that the means he used were the only or least dangerous means whereby he could have avoided the danger."

7.2 From the aforesaid dictum the law is clear that a man is entitled to defend himself against danger that is imminent or that he thinks is imminent.[4]

7.3 It was also said in the case of R. v. Krull[5] per Schreiner, J.A. that:

“In self-defence the motive is fear, which from the law's viewpoint is a better motive than anger, which operates in provocation. If you kill intentionally within the limits of self-defence, you are not guilty. If you exceed those limits moderately you are guilty of culpable homicide; if immoderately, you are guilty of murder. No greater precision is possible as a matter of law. In this respect our treatment of the subject is more direct but less logical than that of the English law which, if self-defence fails, re-examines the facts to see whether the Crown has negatived provocation (see Bullard v R., 1957 A.C. 635). Under our system it does not follow from the fact that the law treats intentional killing in self-defence, where there has been moderate excess, as culpable homicide, that it should also treat as culpable homicide a killing which though provoked was yet intentional. Since a merely provoked killing is never justified there seems to be no good reason for holding it to be less than murder when it is intended”.

7.4 The task of the court is to now pit the law against the evidence before it. The purpose being to establish whether the crown has proved that self defence cannot be sustained. Put differently, whether the defence has led evidence to satisfy the legal requirements.

7.5 Advocate Fuma submitted that as far as the crown is concerned, self defence is not sustainable.  The totality of the evidence points at the accused being a man who was consumed with the fallacy of a non-existent relationship between his wife and the deceased. It was the crown’s view that such a relationship existed only in the mind of the accused. It was the crown’s contention that, on the fateful day, the accused’s only and main mission for mounting the horse was to chase after the deceased and murder him. To beef up this point, Advocate Fuma submitted that the fight that had ensued the previous day before the crime, when the villagers were merry-making during political celebrations, the accused was the aggressor against the deceased. This anger was thus carried out when the accused and his siblings plotted in the morning to follow the deceased to Ketane and kill him.

7.6 The culmination of the aggression and anger of the accused climaxed, according to the crown, at the hilltop the accused, filled with unreasonable anger, attacked the deceased and killed him.

7.7 It was therefore the theory of the crown that in their outline of evidence, there is no room for self defence because the accused was the attacker or aggressor.

7.8 The theory postulated by the crown has to pass the master test, being; have they proved their case beyond reasonable doubt?  

7.9 Unfortunately for the crown, when it closed its case, it had not satisfactorily answered the question regarding what had taken place once the accused dismounted his horse. Its possible eye witnesses, being PW1 and 2 admitted that they did not witness how the deceased got injured. So much so that, when the crown rested, at best they had circumstantial evidence pointing at the accused as the murderer. In fact, Advocate Fuma submits that he had intention in the form of dolus eventualis in that he hit the accused with the weapon disregarding the foreseeable possibility of death resulting.  

7.10 When the accused took the stand, the erstwhile circumstantiality of the evidence became direct. In terms of the law, the standard or test of the testimony of an accused person is that it should be reasonably probably true.[6] 

7.11 The evidence of the accused as narrated above, is to the effect that on the day preceding the commission of the crime, whilst they were merry-making, the deceased attacked him. This version was never gainsaid by any of the crown witnesses. He continued to testify that it was after this fight, that him and his siblings remembered that the police had warned that if there occurred a fracas between them and the deceased they should report to the police. He therefore had a reasonable explanation of his reason for leaving the village early to go to Ketane. He was not chasing after the deceased but was going to report the fight at the police station in Ketane. His brothers were also on the same mission. This version of the accused contradicted the version of the crown witnesses. In terms of the law, the court is to accept the version of the accused unless it is not reasonably probably true.

7.12 The testimony of the accused explained the events of the brawl between him and the deceased. His explanation as stated above was that he dismounted because the deceased had started to throw stones at him.

7.13 The explanation of the fight as narrated by the accused points toward him defending himself against the deceased. His evidence was that the accused managed to hit him with one blow and once the next was coming he blocked it and disarmed the deceased. The situation being what it was, the deceased still had an opportunity to stone him. He thus hit him to prevent an attack.  The deceased was indeed the initial aggressor. The accused was preventing an imminent attack. Once the court come to this conclusion, in law this means that the accused has satisfied the requirements of self defence. Thwarting an imminent attack.

7.14 The cases cited herein provide that preventing the attack is not the end of the story.  Schreiner JA puts it succinctly in Krull[7] when he states;

“If you exceed those limits moderately you are guilty of culpable homicide; if immoderately, you are guilty of murder. No greater precision is possible as a matter of law”.

7.15 Meaning that the next step is to inquire into the excessiveness or otherwise of the force used to thwart the attack. This will lead the court to three conclusions. The first is, if the attack back was within limits, the accused stands to be discharged. If moderate, the court can return the verdict of culpable homicide. The third is, if the force was immoderate, then the accused is guilty of murder.

7.16 From the totality of the evidence I am of the view that the weapon used by the accused to thwart the attack was moderate. Being the same weapon which the deceased himself used. Fights, or brawls are by nature emotionally charged. Hormones such as adrenalin which prepares a human in a stressful or dangerous situations are released into the bloodstream. This gets the human body ready for a “fight or flight” response. Ordinarily, without turning this into a scientific project, when this takes effect, such a person is ready to defend themselves against all odds. There is no tape or tool to accurately measure the extend of the defence that one involved in the fight can do. The court specifically in this case cannot ignore the long-standing cold war between the two parties. Each felt that this was a do- or- die event. Each had to preserve not only their dignity but their life. It was under these circumstances that the accused hit the deceased with the stick which he handed to PW4.

7.17 The question remains; did he exceed the bounds of self- defence and to what extend? With the history of the animosity of the two fighters, the court concludes that the accused moderately exceeded the bounds of self -defence. There was no need for him to have continued to hit the accused on the legs after he had surrendered. I advisedly choose moderately because the post mortem report points at the wound on the head as that which caused the death of the deceased. This wound was as a result of the first attack which had only one intention, to foil the deceased’s imminent attack. 

 

[8] CONCLUSION

8.1 I conclude that the accused acted in self -defence and the means he used moderately exceeded the bounds of self -defence.

 

[9] CONVICTION

9.1 I find the accused guilty of culpable homicide and My assessors agree with me.

I invite the parties to address me on mitigating and aggravating factors.

[10] MITIGATNG AND AGGRAVATING FACTORS

10.1 Advocate Ntori submitted that the accused was a man who had bottled the public shame of having another man impregnate his wife and have a child born out of the adulterous union. He said the fact that he had not caused the deceased any harm until the fateful day indicates that the accused had no ill-intent against the deceased. He said the court should also look at the fact that the accused was not the initial aggressor of the events that led to the death of the deceased.

10.2 He also added the traditional mitigating factors. These are that the accused is a first offender. Also, the court should look into the fact he is a breadwinner or sole breadwinner. I am not quite convinced that the accused is the sole breadwinner of his family when evidence was led to the effect that they farm fields with his wife. Also, in this day and age of the emancipated women, the absence of a man does not leave a total void in the livelihood of a family. This is more so because the law and societal norms do not restrict a woman from being economically active for her family.

10.3 The Crown for its part emphasised that the sanctity of life should persuade the court to give a sentence that reflects that it is not acceptable for a man to take the life of another. The court, according to advocate Fuma, should, send a message that even where self defence is the only option left for a person, they should be mindful not to act immoderately.

10.4 Having considered these factors, I incorporate them in the sentence I am going to render. I also look at the nature of the crime. That culpable homicide does not erode the fact that there has been loss of life. The sanctity of life is a factor that courts jealously guard. I also am aware that crimes involving the loss of life are on the rise. This calls for the court to be mindful of the purpose of punishment as a means of public deterrence.  I observe the fact that the accused is a first offender and a man who displayed remorse during the proceedings.

10.5 For the abovementioned reasons, I sentence the accused as follows.

[11] SENTENCE:

11.1 I sentence the accused to twenty (20) years imprisonment. Fifteen (15) years of which I suspend, on condition that for a period of three (3) years, the accused is not found guilty of a crime involving violence or loss of life.

 

My assessors agree with me.

 

 

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M. G. HLAELE

JUDGE

 

Crown:     Advocate Fuma

Defence:   Advocate Ntori