HIGH COURT OF LESOTHO
Matter of :
K.K. PRAH Plaintiff
BANK P.L.C. Defendant
by the Hon. Mr. Justice M.L. Lehohla on the 23rd day of December,
sues defendant in terms of claims set out in
summons as follows:
of damages in the sum of F1.79,600 for breach of contract.
Interest thereon at 22% per annum calculated from 23rd July, 1987 to
date of payment.
Payment of damages in the sum of M300 for breach of contract.
Interest thereon at 22% per annum calculated from 18th June, 1987 to
date of payment.
Payment of damages in the sum of M1,187-40 for breach of contract
and being interest at 22% per annum on M10.000 calculated from
November, 1986 to 18th June, 1987.
Interest thereon at 22% per annum from 24th November, 1986 to date
Costs of suit.
claims in the alternative the above sums save that in respect of (a)
(c) and (e) the basis of his claim is
defendant was negligent.
Prah the only witness who was called to testify on behalf of
Plaintiff sought to show that he has a house at No.351 Keizersgracht
Amsterdam. This house or property was mortgaged to Westland Utrech
Hypothek Bank in the Netherlands. See Annesure "A".
discovering that plaintiff was more than knee-keep in arrears the
Westland Bank threatened to sell plaintiff's house by public
in collaboration with the Estate Agents called van Eysden, Ter Borgh
and Roos plaintiff was given to understand that Westland
stall for some two or so weeks before carrying out their threat
provided plaintiff would in the meantime speedily send
over a sum of
M10,000 in order to ensure that the house is sold not by public
auction but in an open market where it would fetch
plaintiff was agreeable to a proposition by the estate agents to
lower the asking price from 259,000 guilders to 250,000
respect of sale in the open market as against in forced sale by
plaintiff approached his Bankers in Lesotho that is Barclays Bank
P.L.C. the defendant and entered into a contract
with them on 24th
November, 1986 with a view to transferring urgently by telegraphic
method the sum of M10,000 to Westland Bank
in Amsterdam. See Annexure
terms of annexure "A" plaintiff authorised defendant to
debit his account No. 811232300 for the charges incurred
transfer of the M10,000 to Westland Bank. The photocopy of the
distinctly marked "X" in a box distinguished as urgent as
against two other boxes Identified as "ordinary"
thus clear to me that defendant understood as well as plaintiff that
the question of the transfer of this money was indeed
testified that he elected this mode of transfer of money because he
was keen to forestall the auction of his house. He
the telegraphic transfer was deliberate and that he had discussed
this method over the counter with one of the
members of defendant's
staff who confirmed that the telegraphic transfer was the quickest
method of transfer for meeting the purpose
plaintiff had in mind.
is the photocopy of the deposit slip that plaintiff received after
the defendant had processed the papers and assured
him that all would
plaintiff visited defendant several times to find out if the transfer
had been effected. The impression given was that
it in fact had been.
Indeed this impression was buttressed by defendant's showing
plaintiff a copy of telex message advising Westland
Bank to credit
plaintiff's account with payment of M10,000 for the mortgaged
property Keizersgracht 351 Amsterdam. See Annexure
out that this money was neither sent to or received by the mortgagee.
Instead it was stuck somewhere between defendant
in Maseru and its
head branch in Johannesburg.
plaintiff's house was sold at what he feared might be give away
close of plaintiff's case defendant made an application for the
absolution from the instance on the basis that plaintiff
prove his damages which depended for their proof on expert knowledge.
Indeed plaintiff had conceded that he
an academician and not knowledgeable on matters relating to property
that falls within the sphere of qualified estate agents.
application was, however, opposed. Mr. Addy for plaintiff relied on
LAWSA 9 page 242 paragraph 429 reading: "The opinion
of a laymen
is admissible if it is relevant. ....... It will be relevant also if
the witness possesses some attribute that would
enable him materially
to assist the court in reaching a conclusion (even on an ultimate
issue if it would be of appreciable help
to allow him to do so) and
if it would be impossible for him to render such assistance without
giving his opinion. See R.v. Vilbro
1957(3) S.A. 223 (A).
I am of
the opinion that the help of an expert on matters canvassed in the
main trial would be useful. See Coopers (S.A.) Ltd vs
Schadlingde-Kampfung MBH 1976(3) S.A. at 370 where Wessels J says:-
"There are ...... cases where the court is, by reason of lack of
special knowledge and skill, not sufficiently informed to
to undertake the task of drawing properly reasoned inferences from
the facts established by the evidence. In such cases
the evidence of expert witnesses may be received because, by reason
of their special knowledge and skill, they are
better qualified to
draw inferences than the trier of fact."
35 (11) a and b are of relevance in this connection.
J. has defined the words appearing in our rule 11(b), i.e. "summary"
371 of his judgment.
however that "reasons therefor" is the phrase that causes
difficulty. In the context in which the phrase "reason
is used in Rule 36(9)(b) which is akin to our 35 (11)(b) Wessels J.
says "it means, or at least includes, the
facts or data on which
the opinion is based. The facts or data would include those
personally or directly known to or by the expert
witness e.g. from
general scientific knowledge, experiments, or investigations
conducted by him, or known to or ascertained by
others of which he
has been informed in order to formulate his opinion, e.g. experiments
or investigations by others, or information
from text-books, which
are to be duly proved at the trial."
instant matter it is not clear what current market value of property
was at the time when the matters giving rise to this
place. Estate Agents with their knowledge based on their penchant for
market trends would be of use in this case. I
accept Mr. Pick's
submission that a single line as to the value of the property by
Agents who have not come to testify before this
court therefore who
cannot be cross-examined would not do.
would be no harm in taking their evidence on commission or in having
their affidavits sworn to before competent authorities
and sent to
observed that plaintiff was put under the necessity to go and
discover in Holland what he could have easily discovered from
defendant, if defendant was not taking him for a constant irritant or
a plaything that merited no serious attention. If plaintiff
the expenses he has had to incur going to Amsterdam
to expose the fact that defendant had not done enough to discover
that the money it kept on saying had been remitted to
Holland was in
fact not, I would consider awarding such sum if it was proved.
maintains that the Auction price fetched by the house is less than
the market price. He relies for this view on the market
in agreement with the mortgagees. The auction took place on 13th
December, 1986. Ex "E" shows that Van Eijsden
Utrecht may have felt that F L250,000 was a fair price for the
property at the time. However, it seems the property,
was sold for a
lesser price of F170.400.
has given what one might regard as the sentimental value he attaches
to the property. No doubt a lot of history surrounds
the place . It
is a monument of no mean significance. As plaintiff enlightened the
court this property straddles the Ming's Canal
and is an 18th Century
house whose value increases instead of depreciating with the passage
of time. Plaintiff restored and repaired
it after buying it. Of
significance is that he took a bond on it for 150,000 guilders in
1980 it having been bought in 1969 for
35,000 guilders. No doubt it
has increased appreciably in value through the years. But these are
matters which require experts
in the particular discipline to
determine or throw the light on.
in support of the application for absolution relied on Pitout vs.
North Cape Livestock Cooperative 1977(4) S.A. 842 Hanos
1972(1) PTD 334 and Thirlwell vs. Johannesburg Bulding Society and
Others 1962 (4) D.& C.L.D. at 581. These authorities
pertinent to the subject under consideration. To that extent I may
just express my indebtedness to him for referring
them, but because they are foreign I have decided to give expression
to my penchant for domestic cuisine.
Roman Dutch system of Law damages have to be proved before an
aggrieved party can succeed. See CIV/T/37/84 Kalaoone vs. Tuke
unreported at 4 where the words appear.
"In my view the onus is on the plaintiff to prove that he has
incurred damages. ......... He has not ............ satisfactorily
discharged the onus that clearly rests with him. Consequently I am
unable to award him any damages for loss ......."
C1V/A/17/82 Kaibane vs Maqolo (unreported) at 5 where more or less
the same views have been highlighted.
CIV/T/145/85 Malebanye vs Russell (unreported) at 3 this court said
"It is regrettable that ..........respondent sought
away failure to call requisite witnesses by saying that it is
difficult to call witnesses outside Lesotho to come and
evidence." In the last mentioned case, the court granted
defendant absolution from the instance.
also observed that defendant has conceded that the claim under 1(c)
is no longer contested. Plaintiff's claim under this
head is made
order of court.
taken the view that there would be no necessity to absolve defendant
from the instance in respect of claim (e) in the summons.
in respect of the main claim am satisfied that defendant is entitled
to absolution from the instance. But because of plaintiff's
success in respect of other claims and the fact that he was made to
tread half the globe to discover
could have easily done without too much bother and enxiety but for
defendant's reprehensible attitude towards plaintiff,
I order that
65% costs be awarded to plaintiff.
Plaintiff : Mr. Addy
Defendant : Mr. Pick.
by the Hon. Mr. Justice B.K. Molai on the 20th day of December, 1988.
accused is summarily charged with the crime of murder, it being
alleged that on or about 5th July, 1988 and at or near Pitso
in the district of Maseru he unlawfully and intentionally killed Napo
Mejaro. He has pleaded not guilty to the charge.
In as far
as it is relevant the evidence heard by the court was that adduced by
P.W.10, D/Tpr Baholo, who testified that he was
attached to the
photographic and finger prints section of the C.I.D. On 6th July,
1988 he received a certain report following which
to the mortuary at Queen Elizabeth II hospital in Maseru where he
found the dead body of Napo Mejaro. The deceased
was a well known
person to him. He had, therefore, no difficulty in recognising his
dead body. On examining it, he noticed that
the body had sustained
wounds on the thighs, abdomen, armpit, face, shoulders and the back.
He took photographs of the wounds. The photographs
were handed in as
part of exhibit "B" in this trial.
evidence of P.W.14, Lt.II Sephelane, was that on 6th July, 1988 he
too received a report fol-long which he went to the mortuary
Elizabeth II hospital where he found the body of the deceased. He
undressed the body and examined it for injuries. He
evidence of P.W.10 that the body had multiple wounds. According to
P.W.14 the wounds appeared to have been inflicted
not disputed that the body of the deceased was properly identified
before a medical doctor who performed an autopsy and compiled
report which was, by consent, handed in from the bar as exhibit "A"
in this trial. According to exhbit "A",
Dr. Jose was the
medical doctor who, on 7th July, 1988, conducted a postmortem
examination on a dead body of a male African adult
at the mortuary of
Queen Elizabeth II hospital here in Maseru. The body was identified
as that of the deceased by a certain Bopehla
J. Mejaro. The
examination revealed a total of 17 gun-shot wounds on the face, body
and extremities. In the opinion of Dr. Jose,
the gun-shot wounds
caused multiple lacerations of the heart, both lungs, stomach, liver
and massive hemorrhage resulting in the
death of the deceased.
I find no
good reason why the opinion of the medical doctor that, in the
circumstances, the deceased died as a result of the gun-shot
inflicted on his body should be doubted. I am prepared,
therefore, to accept it as the truth. That being so, the salient
question for the determination of the court is whether or not the
accused is the person who inflicted the gun-shot wounds on the
deceased and, therefore, brought about his death.
perhaps necessary to mention at this juncture that both the accused
and the deceased were privates in the Royal Lesotho Defence
They played for the soccer team of the Royal Lesotho Defence Force
together and were ordinarily on friendly terms. However,it
appear that on 1st January, 1988 a quarrel broke between the accused
and the deceased. According to him, the accused was
talking to P.W.8,
Sgt. Lebone, when the deceased complained that he had referred to him
as a child. Before the accused could say
anything, the deceased hit
him a blow with a fist on the face. The accused returned the blow and
insulted the deceased by his mother's
private parts. The fight was
stopped and the two men separated. Nonetheless the deceased vowed
that the accused would have to explain
how he knew his (deceased's)
mother's private parts. Ever since that incident the deceased was no
longer as friendly as he used
to be to the accused.
July, 1988 there was yet another quarrel between the deceased and the
accused. The quarrel erupted as a result of the special
was, at the time, served to the members of the soccer team at Ha
Ratjomose branch of the Royal Lesotho Defence Force.
On the day in
question it was the accused's turn to fetch the special diet from the
mess for the members of the soccer team. When
the accused came with
the food there was a general complaint among the members of the team
that too much meat was being served
to them. The deceased then
shouted that the accused was the person responsible for their being
served with meat every day . That
was echoed by some of the members
of the team.
to him, the accused had nothing to do with the decision concerning
the type of food that was to be served to the members
of the soccer
team. The accusation directed to him on that matter was, therefore,
totally unfair. He felt offended and shouted
that whoever said he was
responsible for meat as a special diet for the members of the soccer
team was talking shit. The deceased
then approached and reminded him
(accused) that he had, on an earlier occasion insulted him by his
mother's private parts. He was
then saying he was talking shit. When
the accused asked him whether he was still brooding over that old
affair the deceased threatened
to beat him up. The accused protested
and told the deceased that he could not do it.
common cause that there was a soccer game played on the football
field at Pitso Ground on 5th July, 1988. Both the accused
deceased attended the game. On the early afternoon of that day the
accused went to drink beer at a public bar commonly
next to the football field at Pitso ground. He found many
people,including members of the Royal Lesotho Defence
whom was the deceased, already drinking in the bar.
to him, the accused was drinking his beer in the bar when the
deceased came to him and said they should have a little
Thinking that he wanted to tell him that they should forget about
their previous differences the accused left the
beer he had been
drinking and followed the deceased outside the bar. When they came
outside, the deceased who was clearly in a
fighting mood, invited the
accused to a fight with knives. The accused told him he did not have
a knife. The deceased then caught
hold of, and asked, him how he knew
the private parts of his mother. The accused struggled to free
himself from the deceased's
grip. At that time people came and
intervened by separating them.
to the accused he usually had trouble with one of his arms, a fact
which was known by all the members of his soccer team
medical doctor. In the course of the commotion he had with the
deceased on that day his arm got dislocated.
P.W.4, Taole Phaila, two of many people who came to the scene and
stopped the fight between himself and the deceased even
put his arm into position
It may be
pointed out right away that all the members of the Royal Lesotho
Defence Foce soccer team who testified in this trial
accused's allegation that he usually had problems with one of his
arms. They likewise denied that during the struggle
he had with the
deceased outside the bar the accused dislocated one of his arms when
P.W.8 and P.W.4 had to assist him to put it
into position. Indeed, as
it will be abundantly clear in the course of this judgment, there is
no suggestion that following his
physical stug-gle with the deceased
the accused ever wanted to see a doctor for medical treatment of any
of his arms
result, I have no hesitation in rejecting as false the accused's
story that he ordinarily had problems with one of his arms.
indeed, do I believe that during the scaffle he had with the deceased
outside the bar the accused dislocated his arm which
had to be put
into position by P.W.8 and P.W.4.
to his evidence, the accused testified that after his fight with the
deceased outside the bar had been stopped they both
went back into
the bar and continued drinking. His evidence is, in this respect,
corroborated by that of P.W.13, Mokete Monethi,the
the court that whilst he was serving the customers he could see,
through the window, the accused and the deceased fighting
bar. After the fight had been stopped he saw the two men among the
people who returned into the bar.
to P.W.8, as soon as the fight had been stooped outside the bar he
ordered the accused to leave the place and the latter
did leave in
the company of P.W.1, Pte Nathane. The evidence of P.W.8 is in this
regard corroborated by that of P.W.4.
in his evidence P.W.1 denied that as soon as the fight was stopped
outside the bar he left with the accused on the instruction
On the contrary P.W.1 confirmed the evidence of P.W.13 and the
accused that after the fight had been stopped outside
they all returned into the bar and continued drinking. It was
only when the deceased continued pestering the
accused that they
should go out for a talk and the accused was refusing to do so, that
P.W.8 ordered the latter to leave the place.
On the instruction of
P.W.8 he (P.W.1)left with the accused.
say I find it improbable that as soon as the fight was stopped
outside the bar, P.W.8 could have hastily ordered the accused
leave the place. A more sensible version is that given by P.W.1,
P.W.13 and the accused that after the fight had been stopped
the bar the deceased and the accused, together with the people who
had been intervening to stop the
returned into the bar. It was only when it became apparent that the
deceased wanted to continue the squable that P.W.8 decided
one of the combatants to leave the place so as to put an end to the
inclined, therefore, to believe that P.W.8 and P.W.4 are making a
mistake in their evidence that as soon as the fight between
deceased and the accused had been stopped outside the bar, the latter
was ordered to leave the place. In my view, the truth
is in the
evidence of the accused, P.W.13 and P.W.1 that after they had been
separated outside the bar the accused and the deceased
the bar and continued drinking,
concedes that P.W.8 later ordered the accused to leave Lehafing bar
and he left with the latter. When they were outside the
accused said he was going to his place of residence next to the
National Teachers Training College (N.T.T.C.). The accused
direction towards the main bus stop in Maseru whilst P.W.1 returned
to Lehafing bar where he continued drinking.
to their evidence when they parted outside Lehafing bar both the
accused and P.W.1 had agreed that they would later that
meet at another public bar where they would continue drinking
together. However. when he came to his residence the accused
that day decided to leave Maseru altogether and go to his home in
T.V. He put his rifle in a bag which he left with a friend
of his at
a filling station next to the main bun stop in Maseru so that on his
return from home the following morning he could
collect the rifle and
go straight to his duty station. Having left the bag containing his
rifle at the filling station, the accused
looked for P.W.1 and found
him still at Lehafing bar. He informed him of his decision to go to
T.Y. that afternoons
evidence that after he had been ordered to leave Lehafing bar the
accused returned to that place is confirmed by P.W.1, P.W.4,
and P.W.13. According to P.W.8 he did not notice any trouble between
the deceased and the accused when the latter returned
to the bar. At
about 4.30 p.m. he (P.W.8) left for his residence and did not return
to the bar.
common cause that later that afternoon the accused left Lehafing bar.
He was in the company of P.W.1, P.W.4 and P.W.3 who
had also come to
drink at the bar. According to the evidence of P.W.1, P.W.3 and P.W.4
they were going to report for duty while
the accused who, as has been
pointed out earlier, was not on duty that day, was on the way to his
home in T.Y. They all walked
together in the direction towards the
main bus stop in Maseru, where they were to embark taxis going to
their respective destinations.
passed next to a shop called Mphefeela the accused and hie party
noticed the deceased running after them. On arrival the
straight to the accused, caught hold of, and hit him a blow on the
face with a fist. The accused returned the blow
and also hit the
deceased on the face with a fist. P.W.1, 3 and 4 intervened by
separating them. According to the accused the deceased
a butcher knife with which he wanted to stab him This is, however,
denied by P.W.1, P.W.3 and P.W.4.
view if it were true that the deceased produced the butcher knife at
that stage P.W.1,3 and 4 who were very close would have
seen it. They
did not, I am convinced that the accused is exaggerating on this
as it may, P.W.1,3 and 4 told the court that when they stopped the
fight by separating the deceased and the accused P.W.4
accused and walked with him towards the bus stop. P.W.1 and P.W.3
held the deceased and walked with him back to Lehafing
to P.W.4 whilst he was walking with him the accused suddenly ran fast
and left him behind He ran and disappeared
behind a "bee hive
shop" at the bus stop. When he returned the accused was still
running. He was, then carrying a bag.
P.W.4 also returned and walked
back to Lehafing, As he apprached the bar P.W.4 noticed the bag which
he accused had been carrying
on the ground. He did not, however, pick
Ntseketsi Tjokosela, testified that he had seen P.W.1, P.W.3, P.W.4
and the accused leaving Lehafing bar together. Shortly,
P.W.1 came back and reported that the deceased and the accused were
fighting again. When he and P.W.1 came out of the
bar they noticed
P.W.3 who was holding the deceased in the passage or corridor outside
the door of the bar. Shortly thereafter
the accused appeared at the
entrance of the passage. He was holding a rifle which he pointed at
the deceased end P.W.3 in the passage.
noticed the accused pointing the firearm at them the deceased caught
hold of P.W.3 by the waist and took cover behind him.
confirmed by P.W.3 who told the court that the accused ordered him
and the other people in the passage to move away so
that he could
shoot the deceased. P.W.3 then raised up his arms and pleaded with
the accused not to shoot. However, the accused
who was so angry that
he was even crying took advansing steps threatening that if the
people in the passage did not clear away
from the deceased he was
going to shoot the whole lot.
stage P.W.1 took to his heels and ran out through the opposite exit
of the passage, P.W.4 and P.W.6 ran into a nearby studio
room in the
passage The deceased let go of P.W.3 and ran outside through the
passage, hotly pursued by the accused.
to P.W.1 once he was outside the building of the bar he leaned
against a wall at a corner.
noticed the deceased running round the corner immediately followed by
the accused who was still pointing the firearm at
him. As the
deceased and the accused ran round the corner, P.W.1 heard several
gun reports. According to P.W.3 and P.W.4 the accused
with his rifle whilst he and the deceased were still running through
the passage. The evidence of P.W.1 and P.W.6
was however, that the
shots were, in fact, fired when the deceased and the accused were
already running outside the building.
be no doubt from the evidence that, as the accused was chasing the
deceased with a gun and people were running for their
must have been utter confusion. In a situation like that people are
bound to differ in minor details of what happened
at the time.
However, what comes out clearly from the evidence is that the
deceased was chased out of the passage of the bar building
accused who fired shots at him. Indeed, this is conceded by the
evidence P.W.6 and P.W.4 testified that after the deceased had run
round a corner they followed them. As they appreared
at the corner
P.W.4 and P.W.6 noticed the deceased already lying prostrate on the
ground. The accused was returning still holding
his rifle, P.W.6
pleaded with the accused to lock the safety catch of the rifle and he
complied. P.W.4 and P.W.6 who were then
in the company of P.W.1 went
deceased was lying prostrate on the ground. This is confirmed by
evidence that as he returned From where the deceased was lying
prostrate the accused was still holding his rifle is confirmed
P.W.3 who told the court that after he had followed the deceased and
the accused out of the bar-building he met the latter.
him of the rifle he was carrying and later handed it to P.W.5, Sgt.
Majara. This is confirmed by P.W.5 who told the
court that he
subsequently handed the rifle to P.W.9, Lt. Thaanyane.
As to how
the deceased came to be where he was seen lying prostrate on the
ground is explained by P.W.2, Tsita Moerane, a night
watchman at a
furniture shop next to Lehafing bar. According to him at the
beginning of dust on the day in question P.W.2 was outside
furniture shop when he noticed two men chasing each other from the
direction of the bar.
chased the other men the pursuer was holding a gun with which he
fired shots at him. P.W.2 ran behind a nearby toilet to avoid
hit by bullets. Eventually the man who was being chased fell next to
the toilet and pleaded with the gun man to wait. However,
the gun man
came and shot at the man who had already fallen to the ground. The
gun man then left saying he was going to hand himself
to the police.
Soon thereafter other people came and carried away the injured person
in a vehicle.
been pointed out earlier, P.W.1, 4 and 6 testified that they were the
people who came to where the deceased was lying prostrate.
to them they found the deceased badly injured and unable to speak.
P.W.6 then looked for and obtained a vehicle in which
was rushed to Queen Elizabeth II hospital. They all accompanied the
deceased to the hospital and assured the court
that he sustained no
further injuries whilst he was being transported. However, on arrival
at the hospital the deceased was certifited
evidence of P.W.7, P/W Toloane, is that on 5th July, 1988 she was
posted at Pitso ground police station here in Maseru, At about
hours on that day the accused came to her office and made a certain
report following which she detailed the police officers
to go to a
place next to Lehafing bar. She subsequently cautioned and charged
Tpr Sekamane, confirmed that he was one of the police officers
detailed by P.W.7 to go to a piece next to Lehafing bar on
evening of 5th July, 1988. He found a crowd of people already
examining the place he noticed a pool of blood next to a toilet. In
the vicinity of the toilet he found empty cartridges which
collected. He collected altogether 7 cartridges which he put in an
envelop, showed them to P.W.7 before handing them over
certain L/Sgt Thejane who has not, however, testified in this trial.
The cartridges were later taken by P.W.9.
in his evidence P.W.9 conceded that he had received a rifle from W/O
'Mota who was in the company of P.W.5 he denied that
apart from the
rfle he received anything else.
evidence P.W.11, Lt. Telu-Khunoana, told the court that he was a
qualified Laboratory Technician and Firearms Examiner in
Lesotho Mounted Police Force. Despite the evidence of P.W.9 that he
never received any cartridges, P.W.11 was positive
that on 11th
November, 1988 the former handed to him the qalil rifle before court
together with 7 cartridges for examination. He
subjected both the
rifle and the cartridges to an examination. At the time of the
examination he made notes on the basis of which
he compiled a report
which was handed in as exhibit: According to his report P.W.11 came
to the conclusion that the seven (7) cartridges
had been fired from
the galil rifle before the court.
significant to note that as L/Sgt Thejane, to whom P.W.12 had handed
the cartridges collected from the scene of crime, did
not testify in
this trial there is no certainty as to what he did with those
cartridges A fortiori there is no certainty that the
examined by P.W.11 are in fact the ones that were picked up by P.W.12
at the scene of crime.
that does not, in my view, advanse the defence case. In his evidence
the accused has conceded that he is the person
who, at the
material time, chased the deceased and fired shots at him with the
rifle before the court. He argued, however, that
he did so under
extreme provocation by the deceased and in self-defence.
regards provocation it is worth mentioning that in his won words the
accused told the court that after his fight with the deceased
been stopped next to Mphefeela store he ran a distance of about 40
paces to get his rifle from where he had kept it at the
station. He then returned to Lehafing bar which was about 55 paces
from the filling station That is, the accused had covered
of about 95 paces before he started firing shots at the deceased.
always be borne in mind that provocation is not a defence but a
factor which may reduce the crime of murder to a lesser
terms of the provisions of section 3(1) of the Criminal Law (Homicide
Amendment) Proclamation No. 42 of 1959, the accused's
act of murder
will be reduced to a lesser offence only if he acted in the heat of
passion caused by sudden provocation and before
there was time for
his passion to cool. I am not convinced that where, as in the present
case, ho had time to cover a distance
of about 95 paces before firing
the fatal shots at the deceased the accused can properly be heard to
say he acted
heat of passion caused by sudden provocation and before there was
time for his passion to cool.
common cause that at the time the accused fired shots at him the
deceased was running away. That being so, it cannot be said
deceased was in any way placing the accused's life in danger.
Self-defence cannot, therefore, avail him.
been argued that there is no evidence that any of the shots
admittedly fired by the accused hit the deceased. The possibility
that the deceased died as a result of shots other than those fired by
the accused cannot, therefore, be ruled out. This argument
obviously based on the fact that there was no conclusive evidence
that the catridges examined by P.W.11 were the ones collected
P.W.12 from the scene of crime.
however, be borne in mind that there is no evidence that any person
other than the accused fired shots at the deceased
on the day in
question. The argument that the deceased died as a result of shots
fired by any person other than the accused is,
speculation which has no evidence to support.
large, I am satisfied that the deceased died as a result of the shots
fired by the accused. The question I have earlier posted
or not the accused is the person who inflicted the gun shot
the deceased end brought about his death must, therefore, be answered
in the affirmative,
the correctness of my finding that the accused inflicted fatal
injuries on the deceasedwith as lethal a weapon as the rifle
the court, there is not the slightest doubt in my mind that he did so
with the requisite subjective intention to kill. Consequently,
would find the accused guilty of murder as charged.
: Mr. Mdludi
Defendant : Mr. Pheko.
convicted the accused of murder, the court is now enjoined by the
provisions of S.296 of the Criminal Procedure and Evidence
to state the existence or otherwise of any factors tending to reduce
the moral blameworthiness of his act.
has heard the evidence that on 1st January, 1988 the deceased
assaulted the accused by hitting him a blow with a fist
flymsiest of reasons, namely that the latter had referred to him as a
child. On 2nd July, 1988 the deceased unjustly held
responsible for the type of food that was served to the members of
their soccer team and threatened to beat him up.
On 5th July, 1988
the accused was peacefully drinking at Lehafing bar when the deceased
persistently pestered and assaulted him.
be no doubt from the evidence that the deceased's conduct was highly
provocative. The provocation was, however, not such
that it could
reduce murder to a lesser offence. The court has rightly disregarded
it for purposes of a verdict. Nonetheless, such
properly be regarded as a factor tending to reduce the moral
blameworthiness of accused's act.
also evidence that before he inflicted the fatal injuries upon
the deceased, the accused had been drinking beer which
naturally under the influence of intoxication. It is common knowledge
that when they are under the influence of intoxication
things they would not do when sober. The fact that when he committed
this heneious crime the accused was under the influence
intoxication can, in my view, be properly regarded as a factor
tending to reduce the moral blameworthiness of his act.
premises, I come to the conclusion that extenuating circumstances do
exist in this case and the proper verdict is, therefore,
accused is guilty of murder with extenuating circumstances.
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