HIGH COURT OF LESOTHO
by the Honourable Mr Justice S.N. Peete on the 14th August 2000
accused, a mosotho adult aged about 28 years appears before this
court charged with the crime of murder it being alleged that upon or
about the 1st day of July 1992 and at or near Kubake in the district
of Mohales'Hoek, the accused did unlawfully and intentionally kill
charge he pleaded not guilty. Mr Mahlakeng who represented the
accused then admitted the testimony of the following witnesses:-
post-mortem examination report along with its findings as to the
cause of death was also admitted.
then called Telang Mvelase who informed the court that she was
working as a bar-lady at a beer restaurant owned by one Mohale
Lekhaleng. The deceased was also employed as a security guard at the
business. She says that on the 1st day of July 1992 the accused came
into the bar restaurant at about 7 pm. The accused banged the door in
closing it whereupon the deceased who was having his meal at the time
inquired from the accused "why are you banging the glass door?"
He says that the accused then grabbed the deceased with his clothing
and dragged him outside. She goes on say that after a while, the
accused came back into the restaurant without the deceased. She then
asked Lira Mohatle (deceased's brother) and Peete Teele to go outside
and look for the deceased. She followed the two men and below the
stoep, they found the deceased fallen and on examining him they
discovered that he had a stab wound on the left breast. The deceased
then said "this boy has finished me". She told the court
that she had observed that the accused had appeared drunk when he
arrived at the restaurant.
cross examination, it was suggested to P.W.I that she was fabricating
the pulling because she had not mentioned this at the preparatory
examination; and that at the preparatory examination she had not
mentioned that the accused had slammed the door as he entered and as
he went out. In fact at the P.E. she did not also state that the
deceased had spoken to say "this boy had finished me".
put to him that the accused would say that he never caught hold of
the deceased's clothing and pulled him outside, to which she replied
that she was positive about this.
Question: "Accused will say that the wind blew the door shut"
Answer: "There was not wind on that day."
that when she and other two men went out to look for the deceased,
the accused had remained in the restaurant dancing to the music. She
did not see if the accused was carrying anything when he came back
into the restaurant. She concluded her evidence by saying that a
report was made to Mohale and the deceased who was alive but unable
to speak, was then transported to the hospital where he was reported
dead on the following day.
post-mortem examination report which was formally admitted shows that
death was due to a stab wound to the right side of abdomen causing
abdominal haemorrhage and peritoneal faecal soiling. The deceased
also had sutured wounds on the head.
called Peete Teele who was employed as a beer case off loader at the
restaurant. He told the court that on the day in question the accused
had entered the restaurant with one Nono Nthama and Mankata Mabitle;
he says the accused banged the door and the deceased who was then
still having his meal, called out "Hey man, don't bang the door
it will break". He says the deceased then went to the accused
who was still holding the door and that the accused then pulled the
deceased with his clothing. He opened the door and slammed it again
as they went out. He says that after about five minutes the accused
came back into the restaurant and continued dancing to the cassette
music being played. He says P.W.I then remarked "please go and
see what has happened to the deceased because he has not returned."
He says that he and Lira Mohatle went out only to find the deceased
fallen below a stoep and that he was bleeding below the left breast.
The deceased then said "that boy who pulled me has finished me.
He has stabbed me."
transported the deceased to the police and then to the hospital where
he was reported dead on the following day.
cross examined by Mr Mahlakeng this witness maintained that he
actually saw the accused pull the deceased because there was a
Coleman light in the restaurant.
Question: "The accused says he did not stab the deceased and
that is why he even re-entered the restaurant."
Answer: "I insist he stabbed because the deceased even told me
admitted evidence of Sgt Mokheseng indicated that on the 7th July
1993 one Lehlohonolo Matsoejane arrived at the Mohales' Hoek charge
office and handed in an okapi knife. This is worthless evidence
because it no where relates to the accused. L/Sgt Lethoko's evidence
is about the arrest of the accused on the 5th July 1993. Detective
Trooper Mohlapiso testified to the effect that he examined the body
of the deceased on the 2nd July 1993 and observed a wound on the left
side of the chest and two wounds on the head.
then closed its case and Mr Mahlakeng made an application under
section 175 (3) of the Criminal Procedure and Evidence Act of 1981
for the discharge of the accused. This subsection reads:
"(3) If, at the close of the case for the prosecution, the court
considers that there is no evidence that the accused committed the
offence charged in the charge, or any other offence of which he might
be convicted thereon, the court may return a verdict of not guilty.
Brother Lehohla J. in the recent case of R v Teboho Mabollane -
CRI/T/14/96 fully discussed the principles governing the exercise of
a judicial discretion when an application
nature is made at the close of the Crown case. In the exercise of my
discretion I took into account the following facts -
there is undisputed evidence that the accused was seen pulling the
deceased and that they both went out.
the deceased is reported to have uttered words to the effect that
the boy who pulled him out had stabbed and finished him.
certain discrepancies between their versions at the preparatory
examination and before this court, there was credible evidence that
the accused was seen pulling the deceased who was found with a chest
wound soon after he went out with the accused. The court carefully
took into account what the deceased is alleged to have said and
indeed this court takes it as a dying declaration and exercises its
discretion to admit it as such. In R. vs Ngcobo AD 561 it appears
that the court can take judicial notice of the words "he has
killed me" in deciding whether the conduct of the deceased and
statement as a whole showed that he expected to die. See also R. vs
Abdul 1905 TS 119 at 122 - 3; see also S. vs Qolo 1965 (1)SA. 174 A.
exercising my discretion to admit this statement, I hold that the
assault and the utterance are sufficiently related in time and
circumstance for it to be said that the deceased's utterance was
spontaneous and excluded any possibility of contrivance or design.
The lapse of time between the tussle in the restaurant and the
utterance was so short and contemporaneous that deceased had no time
or opportunity to devise or to contrive (S vs Bouwer 1964 (4) SA 58).
I find therefore that there was sufficient proof that when the
deceased uttered the words he had a firm expectation that there was
no further hope of his surviving. He was finished. I consequently did
not grant the application made by Mr. Mahlakeng.
accused then elected to close his defence without leading any
evidence. The trite principle of our law at this stage is whether it
can be said that the crown has proved its case beyond reasonable
doubt. In this case, there is no direct evidence implicating the
accused in the stabbing; there is however circumstantial evidence led
by the crown and Mr Semoko for the crown submitted that the only
reasonable inference which the court must come to is that the accused
stabbed the deceased on the chest; any other inference is
extinguished by the utterance of the deceased to the effect that the
boy who pulled him out had finished him. The circumstantial facts
must not be treated in isolation but cumulatively and, as stated in R
v Blom 1939 AD 202, the inference that is sought to be drawn must be
consistent with all proven facts and should exclude any reasonable
inference. Mr Semoko submitted that, speculation aside, there was no
other reasonable inference save that the accused is the one who
inflicted the fatal stab wound.
Mahlakeng in his strong argument contended that the crown had failed
to prove beyond reasonable doubt that the accused inflicted the fatal
would upon the deceased, and that there was no direct evidence as to
what happened outside. In fact, he contends that the fact that
accused returned into the restaurant and continued dancing to the
music should be held to be a factor consistent with non-commission of
an offence. He further submits that the utterances of the deceased do
not qualify to be classed as dying declaration mainly because the
words "he has finished me" are amenable to more than one
meaning and do not only mean that the utterer is contemplating death;
it may have idiomatic interpretation only meaning injury. He cites
Campbell - South African Criminal Law and Procedure - Vol V p.833. -
but see R vs Ncqobo (supra).
submits that the evidence adduced by the crown falls short the
required quantum to establish the guilt of the accused beyond
reasonable doubt and that there is no onus on the
to establish his innocence and in the present case, the accused's
silence cannot weigh adversely against him and that the accused must
therefore be acquitted.
criminal trial, each case must necessarily depend upon its own merits
and particular circumstances that is to say, the cumulative effect of
circumstantial evidence will depend upon the particular circumstances
of the case. In this case a question like this was put
Question: "The accused will say that the wind blew the door
shut". Answer: "There was no wind on that day".
accused did not controvert the evidence that he came into the
restaurant that day; nor was it denied that the deceased remonstrated
with him when the door was banged; he did not deny that he went out
with the deceased and came back into the restaurant alone. The words
"That boy who pulled me out" referred ordinarily to no one
else except the accused. The deceased did not even mention his name.
law, the failure of the accused to testify is of importance "if,
although there is prima facie proof of his guilt, some doubt exists
whether that proof should be now regarded as conclusive, that is that
the only reasonable inference from the facts is one of guilt. His
silence then becomes a factor to be considered along with the other
factors and from that totality the court may draw the inference of
guilt. The weight to be given to the factors in question depends upon
the circumstances of each case" - S V Theron 1968 (4) SA 61; S V
Letsoko, 1964 (4) SA 768. In this case, the time factor is also of
importance. The accused and deceased went out in the circumstances as
described and within a space of five minutes, the deceased was found
injured. The court cannot speculate as to what happened
and is justified to infer that the accused inflicted the stab wound
there being no other reasonable inference.
has however not adduced direct evidence as to the circumstances under
which the deceased was stabbed and it cannot be said with much
certainty that when he stabbed the deceased the accused subjectively
intended to kill the deceased moreso because it was evidence of P.W.1
that the accused was drunk on that day. The accused should benefit
from this doubt and he is therefore found guilty of the crime of
assessor agrees with this finding.
informs court that the accused has no previous convictions. Mr
Mahlakeng in mitigation pleads that the circumstances of the case are
such that a non-custodial sentence be imposed on the accused.
Sentence: Having considered all the circumstances of this case the
court finds that it is competent and appropriate to impose a
community service order- a new form of non-custodial punishment in
Lesotho. The offence of culpable homicide is excluded under the
Schedule IV of the Criminal Procedure and Evidence (Amendment) Act
no. 10 of 1998. I am of the view that the essentials under Rule 14 of
the Community Service Rules 1999 have been substantially satisfied
and that the accused can benefit from the Community Service Order
sentence. The Probation Service Suitability Report by Mr H. Thabane
hereto attached is also positive in this regard.
that instead of serving twelve (12) months imprisonment-
accused perform community service for 480 hours at a place(s) and
time(s) to be appointed by the district probation officer and
Hoek Subordinate Court to supervise this sentence.
sentence of twelve months imprisonment is suspended till the
satisfactory completion of the community service sentence.
Crown: Mr. Semoko
Accused: Mr. Mahlakeng
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