HIGH COURT OF LESOTHO
by the Honourable Mr Justice WCM Maqutu on the 15th day of September
case accused is charged with the crime of murder:
upon or about the 26th day of September, 1995 and at or near MAPUTSOE
in the district of LERIBE the said accused, did unlawfully and
intentionally kill SEQOBELA SIMON MOHALE. Accused pleaded not guilty.
led the viva voce evidence of three children of between 14 and 18
years, all of whom gave evidence on oath. The medical evidence was
by consent. The preparatory examination depositions of the
investigating officer Lance Sergeant Mopeli and that of the
identifying witness Molomo Mohale who identified the deceased's body
before the post mortem were admitted and read into the record. The
accused gave sworn evidence in his own defence.
led the evidence of Pontsa Ramarou (PW1) who showed that at dusk they
were singing at the forecourt outside the row of rooms in which
accused had rented premises. Deceased (the late Seqobela Mohale) was
singing with them. The words of the song were:-
tsa ntate Mohale ke tseo, chesa morosoroso" translated it means
"there comes the little children of Mohale, burn or eliminate
all cheating" or words to that effect.
wording of the song, it is clear that they must have admired deceased
or he must have taught them that song in his own praise. PW2 Mamello
Jane says when they saw the deceased they started singing that song.
PW3 'Neheng Makhele actually says that song, which they sang with
deceased, was his method of playing with them. This portion of the
Crown case is undisputed.
about ten children were singing with deceased, accused accordingly to
PW1 and 3 came out of Tsuinyane's premises, told the children to
disperse. He even insulted the children by including their mothers
the abusive language he used. PW1 and PW2 agree on this. PW3 agrees
with them but does not go into details about the nature of the
insult. All witnesses i.e. PW1, PW2, PW3 and the accused himself,
agree on the fact that the witnesses and the deceased were singing
aloud. There is no dispute that not all the children (except two)
lived in the site in which the accused lived. Deceased lived in the
same site although he did not live in the block with lines of room in
which accused lived.
PW3 say the singing continued although it was no more very loud. PW1
was not asked to clarify this issue. PW1, PW2 and PW3 deny they were
causing any nuisance. PW2 says they continued singing for 30 minutes
while PW2 said they continued singing for only two minutes. However
when accused rushed into the house they dispersed because they all
agree that someone said accused was going to get a sjambok. They
dispersed although some did so more slowly than others.
PW2 say accused came out from his premises carrying an SLR rifle
about 1½ yards long. They ran away. PW2 claims he saw deceased
also running but unable to get far because he was ill. I do not
believe PW2 saw anything after seeing the accused coming out carrying
a rifle as she ran for her life. PW1 says deceased did not run away.
Accused (according to PW1) shot deceased where he had been standing.
Accused said in his evidence that he saw deceased coming towards him
and he shot deceased. Although accused says he did not know where
deceased was going he thought deceased was coming
him because even when accused had got out of the deceased's way,
deceased still came towards him.
witnesses including the accused say he was very drunk at the time.
Accused says his memory is not very good about what happened. He does
not even remember using abusive language. He just heard a lot of
singing, he could not distinguish whether they were adult voices
because he was drunk. Accused could not say why he took the rifle
(and what threat he perceived) that made him take that rifle for his
defence. He lied and said a firearm which could hit a target at two
kilometres had a range of only a little over half a kilometre.
says he saw accused shoot deceased says she saw him through a
partially closed door, where she was hiding. She was not challenged
or shaken on this point. I do not believe the accused is telling the
truth when he says deceased was coming towards him. I believe PW1
when he says he shot deceased who was just standing where he had been
during the singing. I also accept what PW1, 2 and 3 said namely that
deceased drew the attention of all people to the effect that he had
been shot for no reason at all. Deceased before he died said God
should receive his soul, as PW1 and PW2 testified. PW2 and PW3 only
heard a gun report but did not see what happened to deceased. PW3 ran
away even before she saw accused carrying a rifle.
no doubt that accused was irritated by the singing in which
were saying they belong to the deceased, who was singing with them.
Accused went for his rifle when they continued singing. When he came
out he shot deceased who was standing where he had been standing
during the singing. Accused's mind was befuddled by drink. A person
who has taken alcohol even if provoked can still be able to form the
intention to kill. See Rex v Khotso Bothata 1978 LLR 427. At page 429
Cotran CJ dealing with a form of verbal provocation that occurred on
a person who had taken alcohol immoderately said:
"The words uttered by the deceased may be said to have been
provocative, and to a person who had imbibed liquor more so, but I do
not consider the two factors sufficient to reduce the crime to
be observed that accused could still remember a lot of what he did.
He is only shocked by his lack of logic. We do not consider
voluntarily induced intoxication as an excuse in the commission of
any crime. If a person was temporarily insane because of voluntary
intake of intoxicating substances, the court returns a special
verdict of guilty but insane. See Section 2(3) of the Criminal
Liability of Intoxicated Persons Proclamation 60 of 1938 read along
with Section 17(2) of the Criminal Procedure and Evidence Act of
1981. This issue was dealt with by the Court of Appeal in Tsitso
Matsaba v Rex 1991-1996 LLR 615. It is clear as I have already stated
that accused remembers a lot of what he did although he was drunk.
Consequently he does not allege (nor is there evidence showing)
temporary insanity in the sense of being dead drunk.
accused is liable for his actions.
that is not enough. Accused is charged with a crime that involves the
presence of a special intent. This the Crown has to prove beyond a
reasonable doubt. As Williamson JA said in S v Mini 1963(3) SA 188 at
"In order to hold that an accused on a charge of murder, had the
requisite mens rea...the court must find as a subjective fact, that
the accused intended to kill the deceased: This fact falls to be
established beyond reasonable doubt. The finding (like any other
fact) may be one based on inferences from established facts and
case of Mini there was evidence that accused was not sober- he was
drunk to some degree. Judges who were in the majority found accused
guilty of culpable homicide. While the minority of two out of five
judges said he was guilty of murder.
court has to decide is what was in the mind of this particular
accused, in the condition he was in, not what could be expected of a
difficult to delve into a person's mind. If a person takes a
dangerous weapon and shoots another on the chest there is a strong
inference that he subjectively intends to kill. However, this must be
the only inference that the
make. This has to be so, because the Crown is relying solely on
circumstantial evidence. In S v Sigwahla 1967(4) SA 566, it was shown
the onus to prove subjective intent is on the Crown in such
circumstances. The Crown conceded that with a mind soaked in alcohol
and drunkenness, it could not say it has proved subjective intention
to kill beyond reasonable doubt.
I have no
option but to give the accused the benefit of doubt on mens rea to
therefore find the accused guilty of culpable homicide, but not
murder. Stand up accused. You are guilty of culpable homicide. My
Crown : Mr T Semoko
accused : Mr M Mathafeng
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