CRI/T/12/85.

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

vs

1.
SEABATA MASOLENG

2.
MOSOLOLI MASOLENG

JUDGMENT

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 14th day of November,
1985.

The
accused are charged with the offence of murder, in that upon or about
the 29th December, 1984 and at or near Mahlahlathane's
in the
district of Mohale's Hoek, the accused, one or other or both of them
unlawfully and intentionally killed Lithakong Matamane.
They pleaded
not guilty to the charge.

The
defence admitted as evidence before this Court the depositions at the
preparatory examination of the following witnesses: P.W.
1 Dr.
Jordan, P.W.2 Mohanoe Matamane, P.W.4 Monyane Letele and P.W.7
No.3283 P/W Moshoeshoe. Dr. Jordan's evidence was that on
the 31st
December, 1984 he performed a post-mortem examination on the body of
the deceased and formed the opinion that death was
due to massive
cerebral oedema due to extremely large biparietal skull fracture.
Externally he observed the following injuries:
(1) Left
fronto-parietal laceration - 3cm (sutured); (2) 1cm scratch over left
eyebrow; (3) Occipital lacerations x 2 - 4CM each
(sutured) and (4)
Lacerations to back x 7 over right scapula and near the thoracic
spine (2) - ½CM.

2

Monyane
Letele's evidence was that on the 29th December, 1984 accused 1
borrowed a stick from him alleging that he was going to
see Sebotsa's
sons. He gave him instructions that when became back he must give the
stick to his children. The accused 1 returned
the stick on the same
day. On the 31st December, 1984 accused 1 received a message from the
police that he must bring the stick
to the charge office. He complied
with the instruction on the 1st January, 1985.

At the
trial before this Court the Crown called only one witness who was
present when the fight between the accused and the deceased
took
place. Moeketsi Thakanyane (P.W.1) deposed that on the 29th December,
1984 he and the two accused attended a feast at Mahlahlathane's

village. They left for their home at about 4.00p.m. On the way they
met the deceased. He stopped them and stood infront of A1 and
asked
him where he came from. A1 told him that he came from a feast at
Mahlahlathane's village. The deceased then asked A1 whether
he had
not told him (A1) never to come to that village. A1 answered and said
that the deceased should never ask him such a nonsensical
question as
he (A1) did not come from his (deceased's) wife. It is common cause
that at this juncture the deceased was very angry
and very violent.
When Moeketsi noticed that the deceased was angry, he ordered the
accused that they should leave. A1 was just
beginning to walk away
when the deceased attacked him with a stick. The first hit A1's hat
and it fell to the ground. The deceased
/blow delivered the second
blow but A1 warded it off with his stick. The stick of the deceased
broke into two pieces, he remained
holding one piece which was about
1½ feet long. A1 struck the deceased Several times on the head
with a stick (Exhibit 1).
The deceased turned and pretended to run
away but picked up a stone and threw it at A1. He (A1) warded off the
stone with his stick.
It was at this stage that A2 intervened in the
fight and caught hold of the deceased around the whist from behind
and started to
stab him with a knife on the back. Moeketsi says that

3

while A2
was stabbing the deceased and holding him by the waist, A1 continued
to strike him on the head several times with a stick.
Eventually A2
let the deceased go and A1 struck him the last blow which felled him
. They then left him lying on the ground.

As I have
stated above there was one eyewitness. Kanono Ramokete (P.W.2)
arrived at the scene of the crime after the fight.

At the
close of the Crown case Mr. Pheko, for the defence, applied for the
discharge of the accused on the charge of murder. For
reasons that
will become clear from my judgment I refused the application. The two
accused elected to give evidence on oath. Their
story is
substan­tially the same with that of P.W.I except that they deny
that A1 hit the deceased several times on the head.
According to A1
the first blow by the deceased knocked off his hat but did not hurt
him in any way. He warded off the second blow
and immediately struck
the deceased on the head with his stick. That blow did not have the
desired effect because the deceased
continued to advance towards him
and attacking him with the portion of stick. A1 warded off the blow
and struck him again on the
head. The deceased picked up a stone and
threw it at him; he warded it off and struck him on the head again.
The deceased then
moved backwards and tried to pick up another stone
but A1 struck him again and left him lying on the ground.

A2 admits
that during the fight between A1 and the deceased he intervened and
got hold of the deceased by the waist because he was
angry and saw
that A1, who is his brother, was in danger of being seriously hurt,
After he caught hold of the deceased he saw that
there was a knife in
the back pocket of the deceased's trousers. He pulled it out and
stabbed him on the back many times. When
the deceased struggled and
managed to free himself, A1 struck him the last blow which felled
him.

4

I am far
from being convinced that P.W.1 was telling the truth when he
described how A1 repeatedly struck the deceased on the head
with the
stick (Exhibit 1) which is very thick timber stick. If A1 had struck
him numerous times as described by P.W.1, the head
would have been
severely fractured. 1 am of the opinion that the evidence of the
accused with regard to the injuries caused by
A1, is more consistent
with the evidence of Dr. Jordan than with that of Moeketsi. It is
also more probable than that of Moeketsi.

Miss
Mokoaleli, for the Crown, conceded that this is a case of
self-defence and that the only question is whether or not the accused

exceeded the bounds of reasonable self-defence. The test whether the
accused acted justifiably in defence is objective. This means
that
each requirement of the attack and of the defence must be judged from
the external point of view, the accused's beliefs and
his assessment
of the position being relevant only to the question of whether they
would have been shared by a reasonable man (R.
v. Bhaya, 1953(3) S.A.
143 (N), South African Criminal Law and Procedure, Vol. 1 by Burchell
and Hunt). It is common cause that
the deceased attacked A1 with a
stick and stones without any justifiable cause. The life of A1 was in
danger and he had the right
to defend himself with whatever means at
his disposal. The only question is whether in defending himself he
exceeded the bound
of reasonable defence. I think the answer must be
in the negative. At the time A1 delivered the three blows, the
deceased was fiercely
attacking him and advancing towards him all the
time. He stopped striking him as soon as he fell down. If he had
delivered a single
blow after the deceased had fallen down, this
Court would hold that he was no longer defending himself because the
danger to his
life would have stopped.

The
position of A2 is entirely different because he was not the one who
was being attacked. He had the chance to think more collectedly
about
the situation than A1 who was being attacked. He caught hold of the

5

deceased
by the waist from behind and was at a great advantage to disarm him
of the portion of the stick he was still holding. He
was also in a
very good position to throw him down and then to overpower him and
disarm him. But A2 decided to take a knife and
stabbed the deceased
on the back several times. P.W.I told the Court that it was the
stabbing that caused the deceased to fall
to the ground. There is no
evidence that the deceased was about to produce the knife and to
attack the accused with it. The position
is that A2 took a knife from
where it was kept and attacked the deceased with it after he had
literally over-pwercd him by holding
him around the waist with both
arms. I am not implying that A2 had no right to defend his brother
and to use whatever weapon was
avialable to him as long as the life
of A1 was in imminent danger. What I am saying is that as soon as A2
caught hold of the deceased
by the waist, the life of A1 was no
longer in danger, so that the act of stabbing was not in self-defence
but mere vengeance. If
the injuries inflicted by A2 had in any way
contributed to the death of the deceased, I would find him guilty of
murder. However,
according to the doctor's finding the stab wounds
did not in any way contribute to the death of the deceased.

For the
reasons stated above A1 is found not guilty and is discharged. A2 is
found guilty of assault with intent to do grievous
bodily harm.

Sentence
:- R150 or 6 months' imprisonment. My assessor agrees with me.

J.L.
KHEOLA

JUDGE.

14th
November, 1985.

For Crown
: Miss Mokoaleli

For
Defence : Mr. Pheko.