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.
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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
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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.
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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
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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.