HIGH COURT OF LESOTHO
R E X
by the Hon. Sir Peter Allen on the 26th day of August, 1987
appellant, aged 29 years, was convicted on 26 November 1986 by a
first class magistrate at Mokhotlong. He was charged on two
culpable homicide and
of assault with intent to do grievous bodily harm.
convicted as charged on count 1, but, on count 2, he was convicted of
the lesser offence of common assault. On the first
appellant was sentenced to imprisonment for two years and, on
the second count, to a fine of M40 or imprisonment
for four months in
default (to run concurrently).
commenced his prison sentence on 26 November 1986 and he was released
by the High Court on cash bail on 30 March 1987 after serving
months of his sentence.
represented the appellant in both courts. He has confined his address
to this Court to the convictions
has relied entirely on the defence of self-defence, since it was not
disputed that the appellant stabbed the 22 years old
Lesoetsa Moorosi, with a knife in the chest. He died from loss of
July 1985 in the evening there was a beer party at the home of a
woman called 'Matankiso Letsie (P.W.3) 2t Thabang. A number
people attended and it appears that all those concerned had drunk a
considerable amount of beer by midnight. At that time
the beer was
finished and the drinkers started to disperse.
appellant attended the party with his friend Kabelo Koma (P.W.1), who
was treated throughout the trial as an accomplice. The
with his friend Malefetsane Chere (P.W.2), who was also the
complainant in the second count in the charge sheet. Among
witnesses were two other women, 'Mafutho Motleleng (PW who called
herself the concubine of the appellant, and 'Masehloho Tsita
the girlfriend of the deceased.
the fact that they had all consumed a quantity of beer it is hardly
surprising that their later testimony was confusing and
contradictory. The owner of the house 'Matankiso (P.W.3) was aged 43
years and so quite a lot older than the other witnesses. It
that she had drunk very little and her account of events is less
confusing and possibly more reliable.
during the evening the appellant asked 'Matankiso to escort 'Mafutho
(the appellant's girlfriend) to the appellant's
house where he would
shortly join her. 'Matankiso stayed with 'Mafutho until the appellant
then 'Matankiso went back to her own home. It was about midnight by
then and the deceased and others had just arrived at
her house and
started drinking. The appellant came back to her asking for a tin of
beer. Others also arrived, including one Saleoa
(who did not
testify). She told them all that the beer was finished so the
deceased and his friend Malefetsane (P.W.2) started
to leave. The
deceased called to his girl-friend, 'Masehloho (P.W.5),to go with
him. As she tried to leave the house the appellant
and Kabelo (P.W.I)
pulled her back into the house.
the appellant had his own girl friend, 'Mafutho, waiting for him at
his home, he apparently decided that he also wanted
deceased's girl-friend) to go with him too. She had already refused
his earlier invitation. She objected to being
pulled back by the
appellant. There was a certain amount of ineffective pushing and
pulling by these drunken men and 'Matankiso
and Saleoa pushed the
deceased and Malefetsane outside and Saleoa went out with them. The
two women, 'Matankiso and 'Masehloho,apparently
blocked the doorway
so as to keep the two groups apart. Kabelo (P.W.1) tried to get out
of the window but he was pulled back into
the house by 'Matankiso at
first. But he got out at his second attempt and he proceeded to
attack the deceased and Malefetsane
(P.W.2). They all had a drunken
fist fight wherein they were mostly hitting out at each other and
missing. Saleoa was also involved
trying to separate them.
appellant pushed past 'Matankiso and joined in the fight, apparently
to assist his friend Kabelo. The appellant fell down
and got up with
a knife in his hand.
tried to take it from him and was threatened by the appellant. Kabelo
released him and he attacked the deceased who fell
down after being
stabbed. Malefetsane (P.W.2) then attacked the appellant in order to
assist the deceased. The appellant tried
to stab Malefetsane but they
were separated after the appellant had struck Malefetsane on the jaw
with his fist. The appellant
then ran away. There was no police .
evidence of when the appellant was arrested. Such evidence should
always be given.
defence the appellant testified that it was Kabelo (P.W.I) who came
to his house that night to ask him to go back to 'Matankiso's
because two men were fighting with Kabelo's brother. This was quite
different from what the woman 'Matankiso (P.W.3) had stated
There was no fight when he reached there so the appellant sat down
and drank beer. Then the quarrel over the girl 'Masehloho
occurred without the appellant participating. He said that the
deceased attacked Kabelo (P.W.1) with his fists and they
and were separated by 'Matankiso.
appellant claimed that he was the one who prevented Kabelo from
getting out of the window. The appellant said . he tried to
outside in order to separate the deceased and Malefetsane who were
fighting with Kabelo. At first 'Matankiso prevented him from
out but he soon got past her and then the deceased and Malefetsane
attacked him with their fists and he was struck on the
arm by a stone
and he fell over backwards. The deceased and Malefetsane then both
kicked him in the ribs while he lay on the ground.
That was when he
pulled out his knife, opened it and threw it at his
attackers. He said it was his intention to defend himself and he
did not see whether or not he had stabbed anyone.
medical report on the appellant (exh. 'C') shows.. that he had a
bruise on the forehead and on the right upper arm. He said
and the others were all "considerably drunk" at the time.
magistrate considered the appellant's claim that he acted in self
defence and dismissed it on the grounds that the fight
house did not concern the appellant at first and he only became
involved because he pesisted in going outside when
others tried to
stop him from doing so. He thus took part in the fight "willingly
and unlawfully" and it resulted in
the death of the deceased.
This was caused by the assault and stabbing by the appellant.
magistrate believed the prosecution version of the incident and it is
clear from that, and indeed, even from the appellant's
that he joined in this drunken brawl quite uninvited and
unnecessarily. It was not his fight and if he had kept
would have been injured apart from a few minor cuts and bruises.
The appellant was the one who brought a dangerous
weapon into the
fray. The question is was he justified in using it?
general principles of the law on self defence are clear enough.
Briefly they are:
the accused had been unlawfully attacked and had reasonable grounds
for thinking that he was in danger of death or serious
the means of self-defence which he used were not excessive in
relation to the danger; and
the means he used were the only, or least dangerous, means whereby
he could have avoided the danger to himself.
counsel for the appellant and for the Crown spoke of the test in such
cases being the reactions of a reasonable man in the
But this test is not easy to apply because surely a reasonable man
would not get so drunk, that he became involved
in such an incident.
Further a reasonable man would not go to a drinking place armed with
a deadly weapon. . It.might be that a
person in the appellant's state
of life and circumstances might act like that but that does not make
him a reasonable man, nor
can he be compared with one.
rate the first principle is that the appellant should be the one who
is. attacked. In this case, as we have seen, it was
the appellant who
voluntarily joined in the fight.. He claimed that he was then set
upon and kicked by the deceased and Malefetsane.
But he had brought
that retaliation upon himself by first attacking them.
point is whether he had reasonable grounds for apprehending that he
was in serious danger. It was clear that most of the
struck missed their targets due to the combatants' drunkenness. This
most probably applied to the kicking also, if
it took place. No other
witness spoke of anyone kicking the appellant, and Kabelo (P.W.1.)
when questioned about it replied that
he did not see it happen. There
is nothing in the appellant's testimony to explain why he decided to
use his knife at all let alone
he felt himself to be in any danger of serious injury or death.
second principle concerns the type of weapon used. As I have
indicated, nobody else was armed or, at least, nobody else produced
any weapon, so clearly there was no justification for the appellant
to do so. Since by his own claim he was only being subjected
drunken kicks it cannot be said that using a knife was the only way
in which he could avoid these kicks. All he had to do was
to roll out
of the way, get up and stagger off. He was in no real danger and he
did not claim in court that he was.
I agree with the trial magistrate that the appellant was the attacker
and not the victim of an attack. He had no business
and the deceased and others were justified in reacting against him.
All he had to do was to go away. Instead he
attacked again,this time
with a knife. It was unnecessary to use such a dangerous weapon and
it was totally unjustified and inexcusable
to kill anyone in those
appellant was clearly acted unlawfully and, in my opinion, he was
properly convicted of culpable homicide on count 1 of the
second count of assault, Mr. Mdhluli for the Crown, did not support
the conviction because of doubts as to what really happened.
to me that the complainant Malefetsane was himself an agressor in the
drunken fight, in which he chose to take part, and
that he got what
he deserved for being involved. I do not think he was a victim and,
it is not certain who hit him. In the circumstances I would agree
that the conviction on the second count should not be
appellant was sentenced to imprisonment for two years for culpable
homicide and Mr. Pheko, on his behalf, chose not to pursue
against sentence. In the circumstances I would say that that was
sensible for it was a very lenient sentence indeed.
This was a
totally unnecessary killing of a young man by the appellant. The fact
that the appellant was drunk or had been drinking
alot is no excuse
or defence at all. He got himself into that state voluntarily and
because he was not responsible enough to control
of liquor. In my opinion he deserves a much longer sentence of
imprisonment but I shall not interfere with
it in the circumstances.
the appeal against conviction on the first count of culpable homicide
is dismissed and the sentence will stand. The
conviction on the second . count of assault is allowed and the
conviction is quashed and the sentence is set aside.
bail is now discharged and he must forthwith return to prison and
serve the remaining portion of his sentence.
take leave of this appeal I should like to take the opportunity to
comment very briefly upon the lower court procedure.
to be in the habit of writing judgments in criminal cases only after
an appeal has been filed. The judgment is
then written in the form of
an answer to the grounds of appeal. I think that this procedure is
absolutely wrong. The judgment should,
indeed must, be written before
the verdict in the case is pronounced.
appeal will then be against the finding and verdict in that judgment
and not the other way round. It is unhelpful and indeed
wrong for a
magistrate to make "submissions" on the allegations
contained in the appellant's memorandum of appeal. Alot
present lower court judgments contain afterthoughts and decisions
based on hindsight rather than being a true reflection
magistrate's thoughts and findings at the time of the trial. As such
they are not proper judicial conclusions and they sometimes
or confuse the appeal court.
second point is that full details of every witness and accused person
should always be recorded in court. It is very difficult
appeal court to picture the persons involved in a case when only the
name is given. The magistrate should record the full
name (not just
one name), age, sex, nationality and occupation of each person. It
helps also to know if a woman is married as well
as her occupation
(which may be housewife, cultivator or whatever else she works at).
Whether a person is a juvenile or adult is
also most important and
helpful. It does not take long to record such details and they can be
very useful to both the trial court
and the appeal court.
P. A. P.
for the Appellant
Mdhluli for the Crown
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