CRI/T/14/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

THABO
THOLOMI TAMOLASE ACCUSED

JUDGMENT

Delivered
by the Honourable Chief Justice Mr. Justice J.L. kheola on the 15th
day of March 2001

The
accused is charged with the murder of Lehlohonolo Morake (deceased)
on the 8th July, 1992 at or near Welkom in the district of Quthing.

The
accused was called upon to plead to the charge. He said: "I am
guilty because I have done the act". He eventually pleaded not
guilty.

The first
witness called by the Crown was Trooper Seitlheko who testified that
on the 9th July, 1992 he was on duty in the C.I.D. office in Quthing
when he received a report from Welkom village. As a result of that
report he went to that

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village.
He went to the house of the late 'Matsepang Tsenki and found the body
of the deceased on the bed, he had a wound on the left wrist which
almost amputated the arm and another wound below the left breast. He
was already dead and there was blood on that bed. The deceased was
naked. The late 'Matsepang was present when Trp. Seitlheko examined
the dead body. After that examination the dead body was taken to the
mortuary.

On the
same day Trp. Seitlheko returned to Welkom and found the accused at
his (accd's) brother's place. He charged the accused with the murder
of the deceased. He says that the accused later volunteered to show
the police where he had hidden the sword used to injure the deceased.
It was hidden in a culvert on the road to Mt. Moorosi which was about
one hundred metres from the village. In his brother's house the
accused took out a knobkerrie from under the bed. The two weapons
were handed in by Trp. Seitlheko and marked as exhibit "1"
(collectively).

Under
cross-examination Trp Seitlheko said that one of the windows of
'Matsepang's house was broken. He denied that this was a fabrication
because he never mentioned it in his evidence-in-chief. He also
denied that both exhibits were found in the house under the bed. He
insisted that only the knobkerrie was

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taken out
from under the bed.

The
second Crown witness was one Likopo Makhetha. He testified that he
resides in Welkom village. In July 1992 the deceased died. On the
night in question he went to the late 'Matsepang's house as a result
of a report made to him by the late Tsokolo. On his arrival there he
found the deceased lying on the bed. He was already dead. He had a
wound on the left wrist and another below the left breast. There was
a basin full of blood which was placed under a wardrobe and the
police took it out.

On the
following day he accompanied the police to accused's brother's place.
They found him and he was arrested. During the afternoon of the same
day the police came back to the village with the accused. He
accompanied them to accused's brothers place. Accused took out a
knobkerrie from under the bed and also led the police to a culvert
along the road to Mt. Moorosi and took out a sword wrapped in a white
cloth.

Under
cross-examination Likopo said that although the police took out the
basin full of blood from under the wardrobe they did not take it as
an exhibit because 'Matsepang claimed that the blood was hers. It was
never established

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what she
meant by saying the blood was hers. That could have meant menses.

The
defence suggested that there was blood on the floor after the accused
and the deceased had fought in the house. They seemed to suggest that
the blood was removed from the floor and poured into the basin in
order to give the impression that the deceased was killed on the bed
and that he never fought with the accused on the floor.

Likopo
never saw any blood on the floor nor on the bed because the wounds
were no longer bleeding.

At this
stage of the proceedings the Crown made an application in terms of
section 227 (1) of the Criminal Procedure and Evidence Act of 1981
that the deposition of the late 'Matsepang Tsenki who was P.W. 1 at
the Preparatory Examination proceedings be admitted as evidence in
the present case. After it was proved on oath to the satisfaction of
the Court that the deponent is dead the application was granted.. The
deposition was read into the record.

In her
deposition the late 'Matsepang states that she was in love with both
the deceased and the accused. On the night of the 8th July, 1992 she
was sleeping

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in her
bed with the deceased. She had locked the door and closed the
windows.

During
the night she heard that somebody was entering into the house through
a window. That person struck a match and lit a lamp. She identified
him as the accused. He entered into the bedroom and uncovered the
blankets which they were wearing and asked the deceased what he
wanted there. However the deceased did not answer him because he was
fast asleep. The accused then produced a sharp instrument (later
identified as a sword) and struck the deceased on the left hand
(wrist). She states that she tried to stop the accused from
assaulting the deceased but he (accused) hit her with a knobkerrie on
the back. She ran out of the house and went to the home of a
neighbour and made a report to her. She also reported to the late
headman Tsokolo Motemakoane who went to her house accompanied by
other villagers. When they arrived there she found the deceased still
lying on the bed. He was dead. He had a wound on the left hand and
another below the left breast which she saw later when the police
examined the body of the deceased.

The late
'Matsepang says that on the night in question, she and the deceased
were drunk. That she was a married woman but her husband was at work
in the mines in the Republic of South Africa.

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The
report of post-mortem examination was handed in as an exhibit by
consent of the defence. According to it the cause of death was left
haemothorax, severe haemorrhage and shock. Externally there were: (1)
Rigor Mortis (2)Paper white conjunctivae (3) Avulsion of the left
hand at the wrist (4) Perforating wound about 2cm on the left side of
the chest just below the axilla (5) Severe haemorrhage with clotted
blood, about 3 litres in the left pleural cavity.

After the
Crown had closed its case, the defence made an application for the
discharge of the accused on the ground that the Crown had failed to
establish a prima facie case or a case on which the Court might
convict.

The Court
refused the application on the ground that the Crown had established
a prima facie against the accused. This finding was based on the
ground that the evidence or the admitted deposition of the late
'Matsepang was evidence before this Court and had not been challenged
in any way.

The
evidence that the accused led the police to a place some distance
from the village where he pointed out a hidden sword wrapped in a
cloth tends to show that he had hidden this weapon because he wanted
to conceal his unlawful acts.

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It also
tends to corroborate the evidence of the late 'Matsepang which
appears in her deposition properly recorded at the preparatory
examination proceedings.

At this
stage of the proceedings I did not consider the credibility of the
witnesses especially that of the late 'Matsepang whose evidence
directly implicates the accused because she is the only eye witness
who was present when one of her lovers killed another lover of hers.

After the
dismissal of the application for the discharge of the accused the
defence immediately put the accused in the witness box to enable him
to give a sworn statement.

He
testified that he reside at ha Ntho in the district of Quthing. At
the time relevant to this case he had visited the home of his brother
in Welkom village. 'Matsepang was his lover. On the night in question
he decided to visit her at her home. When he left his brother's house
he armed himself with a sword because the people of that village
often attacked other people at night and assaulted them for no
apparent reasons. When he arrived at the home of the late 'Matsepang
he knocked at the main door which was locked. The late 'Matsepang
opened the door

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for him.
She did not tell him that she had a visitor in the house. As he
entered the bedroom door he saw a person rushing towards him holding
an unclasped knife in his right hand. He was raising it up and ready
to stab him. Before that person could stab him, he delivered a blow
with the sword he was holding. He struck him on the left hand because
that person warded off the blow with the left hand.

When the
blow landed on the left hand, the knife held by that person in the
right hand fell down. That person moved backwards. The accused says
that he then stabbed that person with the sword below the left
breast. He left immediately after that and never returned to
'Matsepang's place.

He denies
that he entered through the window. He also denies that he lit a
lamp. He says that he never spoke to the deceased at all that night
because they fought before there was any exchange of words between
them. According to accused both the sword and the knobkerrie were
found in his brother's house.

Under
cross-examination the accused said that when he hit the deceased on
the left hand his knife fell down and that he (deceased) moved
backwards and was no longer holding any knife. He admits that the
deceased was then harmless. Nevertheless he stabbed him because he
was frightened. He says that when he

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stabbed
the deceased with the sword below the left breast the latter fell
down. He then left without rendering any assistance to him.

The
deposition of the late 'Matsepang was admitted as evidence in the
present trial in terms of section 227 (1) of the Criminal Procedure
and Evidence Act of 1981. The Crown proved to the satisfaction of the
Court that the late 'Matsepang had died. However an additional
requirement of section 227 (1) of the Criminal Procedure and Evidence
Act of 1981 is that it must also be proved to the satisfaction of the
court that the evidence offered is the evidence which was sworn
before the magistrate without any alteration. The Prosecution made no
attempt to prove this important part of their case. The proper person
to prove the evidence at the trial is the magistrate who took it (The
State v Nellmapius, (1886) 2 SAR 121).

For the
above reason it is clear that the deposition of the late 'Matsepang
ought not to have been admitted as evidence in the present case
because the Prosecution failed to comply with all the requirements of
Section 227 (1).

Nevertheless
when I made the ruling that there was a prima facie case for the
accused to answer I also relied on the evidence of pointing out. The
accused

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pointed
out a sword which was hidden in a culvert along the road to Mt.
Moorosi.

That
sword was used in the killing of the deceased.

In his
evidence the accused admitted that he killed the deceased but says
that he did so in self-defence. Now that the evidence of the late
'Matsepang has been found to be inadmissible because of the
irregularity committed by the Prosecution what is left for the Court
to consider is the self-defence raised by the accused. He says that
when he entered into the bedroom he saw a person rushing to him with
his right hand holding an unclasped knife and raising that hand and
ready to stab. He struck the left hand of that person with the sword
he was holding causing the knife in the right hand to fall down. That
person moved backwards when he was struck on the left hand and his
knife fell down. Accused admits that at that time that person was
harmless because he was moving backwards and was also disarmed of his
knife. However it was then that the accused stabbed that harmless
person below the left breast with a sword.

The
accused had a chance to run away because that person was disarmed of
his knife and was moving backwards. He was no longer posing any
danger to the accused. In other words, the imminent attack that was
facing the accused ceased or disappeared when the deceased was hit
with a sword on his left hand causing

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the
knife in his right hand to fall. Any measures taken by the accused
after the complainant's attack has ceased would be retaliatory rather
than defensive and therefore, unjustified (R. V. Hayes,1904 T.S.
383).

It is
clear from the accused's own story that he exceeded the bounds of
reasonable self-defence. He first disarmed the deceased of the knife
and the latter started to retreat. It seems to me that it was at that
stage that the accused had a good chance to flee.

In R. v.
Molato 1974 -1975 LLR. 30 the accused admitted causing the death of
the deceased, but contended that he had done so in self-defence.
However, it was held that even though the deceased may have been the
original aggressor, the accused had failed to take the opportunity to
flee while the deceased was still in his hut and appeared to have
been ready and willing to engage in contest with his father. In those
circumstances the question of self-defence failed. It was found that
the beating of the deceased was persistent and immoderate and he was
accordingly found guilty of murder.

In R v.
Mathlau 1958 (1) S.A. 350 it was held that where an intentional
killing has exceeded the bounds of reasonable self-defence the proper
verdict in law is not necessarily murder: such cases are susceptible
of treatment as cases of

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culpable
homicide. However, if the excess was immoderate, a verdict of murder
will be returned. In R. v. Krull 1959 (3) S.A. 392 (A.D) at p. 399
Schreiner, J.A. said:

"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

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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."

On the
question of provocation see the Criminal Law (Homicide Amendment)
Proclamation No.42 of 1959.

I have
come to the conclusion that the accused exceeded the bounds of
reasonable self-defence moderately. He stabbed the deceased only once
after the latter was no longer a danger to him. He admits that at the
time he stabbed the deceased below the left breast he was already
harmless.

I find
the accused guilty of culpable homicide.

J.L.KHEOLA

CHIEF
JUSTICE

15th
March, 2001

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SENTENCE

Three (3)
years' imprisonment. The whole of that sentence is suspended for 3
years on condition that during that period the accused shall not be
convicted of any offence involving violence to another persons.

J.L..KHEOLA

CHIEF
JUSTICE

15th
March, 2001.

For
Crown: Miss Mofilikoane

For
Accused: Mr. Fosa