CRI/T/71/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

MATS'ENG
MATS'ENG

JUDGMENT

Delivered
by the Honourable Mrs Justice K.J. Guni on the 15th day of June 1999

The
accused in this case is charged with the crime of murder. It is
alleged against

him that:

"......... on 19th November 1992 at HA 'MANTLOBO in the district
of Botha-Bothe, the said accused unlawfully and intentionally
killed
MOKETE LIOTLO- deceased."

2

The
deceased was a head teacher of the primary school in that village of
HA 'MANTLOBO. The accused is one of the residents of that
same
village. At the time of the commission of the alleged crime this
accused was twenty-one (21) years old. He told this court
that he has
never been to school to learn although evidence will show that he has
been seen on the school yard - herding some animals
which he brought
to the school grounds for grazing. According to his mother this
accused hated school. As a parent she did not
attempt to send him to
school assuming that because of his love for animals, with which he
spent all his time, he would not remain
at school even if he is sent
there.

On the
morning of the 9th November 1992 this accused was making arrangements
to go to the fields to plough or plant some seeds.
He was going to
use cattle to do that job. He told this court that he noticed that
his cattle were very hungry. He decided to take
them to the school
yard for grazing that morning. He advised his colleague who was going
to work in the fields with him, that they
will go in the afternoon
because that morning he was taking the herd of cattle to the school
yard for grazing. So he drove the
herd of cattle to school. There he
let them graze in the school play ground.

When
asked if it is not dangerous for those young school children to
mingle

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with
cattle on their play grounds, the accused told the court that the
children avoid animals as they go about or play in the school
yard.

The crown
led evidence from five witnesses. Only one of these witnesses nearly
saw almost all that happened to the deceased. She
did not see the
beginning of the actual assault. She witnessed the continuation and
ran away before the end. This is PW2 who was
a teacher at that school
where the deceased was the head teacher. She was the first teacher to
arrive at the school that morning.
She saw some animals in the school
yards. She identified them as the goats belonging to the accused's
parents. The accused's mother
is the sister of this witness. The head
teacher - now deceased arrived. The witness saw the boy who was
herding those goats talk
to the deceased. She did not hear what they
said. She saw the boy leave the head teacher and proceeded in the
direction of the
home of the owner of those animals. She saw him
return and go to the head teacher again.

Shortly
there after this witness saw the accused come to the school with the
herd of cattle. He was wearing a blanket. The witness
realised that
the accused was armed with a stick which he had concealed under the
blanket which he was wearing. Part of the stick
protruded above the
accused's shoulder and was seen by PW2 rising opposite his ear. PW2
was instructed by the deceased to

4

assemble
the pupils for the morning parade and prayer. The deceased ordered
PW2 to send pupils of classes four, five and six to
him. These pupils
-assisting the deceased who was supervising them - rounded up those
goats belonging to accused's parents-which
were in the school yard.
The deceased was heard by PW2 saying to the accused, "Ke tla ho
uena ntate" translated "I
am coming to you, father."
The deceased and the accused were approximately (75) seventy-five to
one hundred (100) metres away
from this witness. PW2 did not hear all
that was said by those two - [ deceased and the accused].

The
deceased and the accused were at the school yard where the animals
were grazing. PW2 and some children, were trying to open
what seemed
to be a stiff door of their classroom. They were struggling to open
this door while the deceased with some pupils were
rounding up the
goats in the school yard by encircling them. PW2's attention was
suddenly attracted to where the accused and the
deceased were by a
crackling noise which went thus "qha-a-a". She turned
towards the direction from where the sound came.
She saw the head
teacher lying prostrate on the ground and the accused belabouring him
with the stick. She ran into the village
for her own safety and also
to raise alarm and seek help for the deceased.

5

When PW2
returned from the village she came with four men who had responded to
the alarm and call for help. They found some people
[- women and
men,] already at the scene of the crime. These people according to
this witness were trying to help the deceased.
It turned out from the
evidence of PW4 TALANE MATS'ENG, who is the sister of this accused
that it was herself her mother and one
man. The accused was not
there. He re-emerged a little later still armed with a stick.
Addressing all those people helping the
deceased, the accused said
"Bo mmeng ting" meaning "your mothers". PW2
understanding this to be an insult directed
at them all, she feared
that the accused was threatening them with more violence. Herself and
those who were afraid of the accused
ran away. This time she never
came back.

At the
time PW2 arrived to the deceased with those four men, the deceased
was no longer able to speak. According to PW4 TALANE MATS'ENG
who is
the very first person to arrive at the scene of the crime the
deceased had been in that condition when she arrived. He was
bleeding
through the nose and the blood was flowing into the mouth. He had two
wounds. One on the forehead and another one above
the left ear
towards the back of the head.

6

During
the crown case, the defence appeared to join issues with the
prosecution witness as regards the number of wounds sustained
by the
deceased. It was as if the contention by the accused will be that he
inflicted only one wound or that he hit the deceased
only once.

It
appeared as if defence will claim that some of the injuries were
caused or inflicted by someone else not by the accused. At some
stage
of the cross-examination it appeared as if the accused claims that
the injury was caused by the doctor. Then later on the
suggestion
seemed to shift the blame of causing deceased's death to the delay in
receiving medical treatment. There is no ground
for these
suggestions. The medical treatment, given timeously or delayed,
cannot be blamed for the deceased's death unless it is
established on
the balance of probabilities that there was negligence to a certain
degree in the giving of or delay in giving of
that medical treatment
by the doctor. The deceased was referred to the hospital where he
died by the LTA clinic which according
to the evidence of the accused
person's sister had no facilities or means of treating a case which
was as serious as that presented
to them by the condition of the
deceased. There was no indication whatsoever during the cross
examination of the crown witnesses
that the accused will claim that
he assaulted the deceased in self-defence. Only in his evidence in
chief, this accused claimed
he was attacked with a knife by the
deceased

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and he
assaulted the deceased by hitting him twice on the head with a stick
to ward off his attack.

Where
self-defence is pleaded the prosecution does not have to prove
intention to kill because the accused does not deny it. The
accused
in our case seems to be saying he assaulted the deceased who was
attacking and threatening his own personal safety. The
defence
counsel asked for an adjournment for the purpose of receiving further
and better instruction from this witness in the light
of this defence
being raised at the eleventh hour. This application was granted. The
court resumed after the defence counsel and
client had put their act
together.

Under
cross-examination this accused admitted that he did not tell his
counsel that he assaulted the deceased in self-defence. The
reason
for omitting to give instruction on this aspect according to the
accused is that he was confused from the time the incident
took place
up to the close of the crown case -which is a period of approximately
seven to eight years. Another reason advanced
by the accused for
failure to indicate that he acted in self-defence is that he
[accused] felt that his counsel will not believe
that he acted in
self defence because he did not tell him that initially. The accused
himself was not sufficiently convinced that
he acted in self-defence.
There was no way he can come to the

8

conclusion
that his counsel will not believe him unless he was not convinced
himself. That doubt in his mind of the unlikelihood
of his story of
(acting in self-defence) being believed, has passed on and it is now
resting firmly in my own mind. I do not believe
that accused acted in
self-defence.

The
question of self-defence will be dealt with at the end of the
judgment as it was raised at the end of the trial. This is a serious

murder case. The accused plead not guilty. The crown endeavoured to
discharge the burden of proof which rests on it throughout
the trial.
I therefore turn first to the evidence led and its effect to this
case.

The
accused in his own evidence claimed that he hit the deceased twice
with a stick on the head. The evidence of the only one eye
witness
PW2 is to the effect that the accused belaboured the deceased with a
stick while the deceased was already lying prostrate
on the ground.
This witness ran into the village to look for help. Can she be lying?
If so why? What then caused her and the children
to run? PW2 is a
relative of the accused. She is his mother's sister. There was not
even a suggestion made that she could be falsely
implicating this
accused. She told this court that the accused and deceased were
friends. She has seen them talking together on
other occasions. The
accused and his sister agreed with this testimony

9

in their
own evidence as regards the relations between accused and deceased.

For these
reasons I believe PW2 is telling the truth. There is no exaggeration
in her evidence. She did not even claim to have seen
what put the
deceased to the ground. The medical evidence indicate that the
deceased suffered a fractured skull. The deceased's
brother PW5 saw
two wounds. These are the wounds seen by PW2. PW5 also talked of only
one wound - the fracture of the skull on
the left side of the head
while PW4 adamantly against the evidence of all other witnesses who
saw the injury or injuries on the
deceased, places that injury on the
right-hand side of the head of the deceased. That does not add or
reduce the extent or degree
of the injuries sustained by the deceased
in the hands of this accused.

The
intention to kill in almost all murder cases is determined by
inferences drawn from the facts of each case. THABISO LEJOETSO

1971-73 LLR 177. The accused in our case without any prompting told
this court that he hit the deceased with a stick once. He felt
that,
that first blow was not hard enough and therefore he felt the need to
deliver the harder than before second blow. After hitting
the
deceased the second time the deceased fell. This accused told the
court that he then stopped. There were no further blows delivered
by
him to the body of the deceased. In the light of this evidence PW2
has not yet witnessed any assault on the deceased. PW2 became
aware
of the assault being perpetrated by the

10

accused
upon the deceased only at the stage when the deceased was already
lying prostrate on the ground. The accused is endeavouring
to
convince this court that he did not hit the deceased once he fell
down. He was satisfied that the second blow had done what
he set out
to achieve. He immediately stopped after delivering it.

So far
this court is relying only on the evidence of the accused person
himself in order to determine the question of whether or
not this
accused had the requisite intent to kill or cause a serious harm. The
manner of approach to the school by this accused
must also be taken
into consideration as an indication of his intention. The herdboy
does not conceal the stick he uses for herding
the cattle. The manner
of concealing his possession of the stick as described by PW2
demonstrates concealed hostility to launch
a surprise attack. The
injury caused was a very serious one. The deceased sustained a
fractured skull. Even if the deceased had
a soft skull, the blow or
blows which resulted in the fracture of his skull must have been
delivered with a considerable amount
of force. The feeling of a need
to deliver a second blow goes further to indicate the accused
person's resolve to kill or cause
serious injury. Post mortem report
shows that death was due to intracranial injury. The findings, done
at the hospital where the
deceased was admitted and died are
consistent with the cause of death as indicated on the post

11

mortem
report. On admission at St. Charles Hospital the patient - now
deceased - was found not fully conscious and reacting slowly
to
orders. He was still not able to speak. There was swelling of the
left temporal region which shows some small lacerations. High
up on
the left temporal region were small abrasion. This has caused that
fracture of the skull which was observed externally by
all the
witnesses. It is this injury which was inflicted by this accused as
he told this court himself. The evidence of PW2 is
an added factor
but by the time the accused was seen belabouring the deceased who was
lying down prostrate this fatal injury had
already been inflicted.
Before the deceased fell he was hit twice on the head with the stick
by this accused according to the accused.
The evidence of those
witnesses amongst them the accused's sister - PW4 who accompanied the
deceased to LTA clinic, is to the effect
that no injuries were
inflicted upon the body of the deceased on the way to the clinic and
also subsequently to the hospital. There
were no injuries inflicted
on the deceased when his body was transported from St. Charles to
government hospital for post mortem
examination.

To be
considered together with the nature of the wound is the nature of the
weapon used. The accused used a stick. The stick produced
before this
court is a dangerous weapon. According to the accused, he hit the
deceased twice on the head with that stick. The place
on the body
where the attack is directed assist in many ways to show the
intention of the accused. Hitting the deceased with that

12

stick
particularly on the head, applying the amount of force which this
accused felt was great enough to satisfy him, leaves no
doubt in my
mind that the accused intended to cause his victim's death THABISO
LEJOETSO 1971-73 LLR 177 at 180 B. It is the totality
of the evidence
led in this case that leads to the conclusion that the accused must
have foreseen that he might cause his victim's
death S v MAVHUNGU
1981 (1) SA 56 AD.; R v NTJANYANA PHAKOE 1963 - 66 HCTLR. 140

Even
though self-defence was only raised at the eleventh hour it is still
the duty of this court to consider it. For the accused
to succeed in
his defence, there are certain requirements which must be satisfied.
R v MIYA and OTHERS 1966 (4) SA 274; GIDEON
LETELE v REX 1968 LLR.
Firstly there must have been an unlawful attack commenced upon him or
imminent threat of an unlawful attack.
The place where the accused
and the deceased met is the school yard. The accused knew the
boundaries very well. He also did not
believe that he has a right to
bring his animals to school for the purpose of grazing on the grounds
of the school. The accused
claims that there were other animals
belonging to other residents of the village. It would appear that he
was feeling that there
is an act of discriminating against his
animals. His sister's evidence is more or less in support of that
claim of right for their
animals to graze within the school yard, in
view of the connivance on the part of the head teacher for the
grazing within

13

the
school yard by other villagers. Despite the accused's love for
animals, he is not entitled to secure the right for his animals
to
graze within the school yard by resorting to violence S v KAMFFER
1965 (3) SA 96 (T). There are other ways except the use of
force. May
be because the accused realised that private defence for his property
which was neither attacked nor threatened with
an imminent attack,
may not be available to him, he switched the defence into
self-defence against his own life. In his evidence
in chief the
accused for the first time claimed that the deceased threatened him
with a knife. The accused said that as the deceased
approached him,
he (deceased) had his hand in the pocket. As he drew closer to the
accused, the accused became afraid that the
deceased wanted to stab
him. He then struck the deceased with a stick on the head once. The
accused hit the deceased on the head.
Still no knife came out of the
deceased's pocket. The accused although he had hit the deceased he
went on to say he felt there
was a need to deliver a second blow. The
accused claims that the deceased did not stagger after hitting him
the first time the
deceased was "styling". This the accused
said meant that the deceased was avoiding blows. There is no evidence
that the
accused ever actually saw the knife he felt threatened by.
When he hit the deceased the second time the deceased had not taken
his hand out of the pocket. This is really and truly fabrication.
There is no evidence that the accused's sister the very first
person
to get hold of the deceased found a knife anywhere on the

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body or
near the deceased. The accused's mother was also one of those people
who arrived at the scene before the return of the other
teacher - PW2
who had gone to look for help in the village. There is no evidence of
a knife being seen anywhere at the scene of
the crime. No wonder for
eight years this accused was afraid to say he acted in self-defence.
Even after he has heard the whole
prosecution case against him he was
not able to put together his newly invented defence.

The
accused said as the deceased drew closer to him he became frightened.
- Why did he not continue to move away? What was stopping
him? There
is no evidence of assault or threatened assault on the accused. He
was the attacker and the perpetrator of an unlawful
murderous assault
on the deceased. Even if he feared that the deceased had a knife in
his possession the accused had ample opportunity
to get away. R v
ZIKALALA 1953 (2) SA 568. He does not talk of anything obstructing
his way to run for his dear life. He did not
try to go away simply
because there was no need. His life was not in danger. His plea of
self-defence must fail.

He is
found guilty of murder with legal intent. - (dolus eventualis. It the
finding of this court that there are extenuating circumstances.

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SENTENCE

The
accused has no previous conviction. This is a factor which this court
must bear in mind when assessing an appropriate sentence
in his case.
The accused attended faithfully his trial which has gone on for quite
some time, despite the long distance he had
to travel every time.
This attitude, his legal representative urged this court to consider
in his favour. He did so because he
is sorry for what he did
according to the defence counsel. Compliance with bail conditions is
not per se an indication of contrition
for the crime the accused has
been convicted of. There are distinct and separate sanctions attached
to none compliance with bail
conditions such as re-arrest and
re-detention.

This
accused had an opportunity to show that he was contrite, at the scene
of the crime when he re-emerged and found people around
the deceased
who was at that time in desperate need of help. Instead of helping
those people to help the deceased, he insulted
and threatened them.
Those who were scared of him ran away leaving the deceased helpless,
if someone else did not remain behind
despite this accused's threats.
This accused is the Goliath of that village. His

16

actions
from the start of the events leading to the commission of this crime
up to the end when then the deceased was removed from
the scene of
the crime, are the demonstration of his assumed powers whether or not
it was an overestimation of the said powers.
At no stage throughout
this, did this accused exhibit any sign of remorse, S v B 1996 (2) SA
CR 543 (C).

The court
is being urged to consider this accused as a very very young man. His
youthfulness must influence the court to exercise
its discretion in
assessing an appropriate sentence in his favour. The accused is and
was at the time of the commission of the
alleged crime a major. He
was performing acts which demonstrated that he is a mature man. When
considering that there can be some
people who by the number of their
years should be considered as majors but their actions, be a clear
demonstration of immaturity,
actions therefore should play a part in
the determination of the question of the accused person's maturity.
He is the man who made
decisions of what work to do at what time. He
decided he was going to take the cattle to the school yard for
grazing because they
appeared to him to be very hungry to do the work
he was supposed to do with them that morning. He is for all intents
and purposes
a major. He is in his thirties presently. He was
twenty-one (21) years old at the time of the commission of this
crime.

17

I accept,
though with some reservations that the accused's killing of the
deceased was not premeditated. I say with reservations
because the
accused knew without doubt that his animals are not allowed to graze
within the school yard. He claims that he felt
that there are other
animals, of some of the fellow villagers, which graze within the
school yard and he took his animals there
enforcing their right to
graze on the school yard because he felt there should be no
discrimination against his animals. Even if
such right did exist, the
accused cannot be allowed to enforce it by use of violence against
the person who resist such enforcement.
S v KAMFFER supra. May be
this accused was not expecting any kind of resistence to the
enforcement of the right to graze his animals
within the school yard.
Once he met some resistence he reacted instantaneously in the assault
of the deceased who died from the
injuries sustained during that
assault. S v MARTIN 1996 (2) SA CR 378 (W).

This
accused has shown this court that he is an arrogant person. He wanted
to have his own way irrespective of the place, time and/or
existence
of legal right to do so. By attacking and assaulting the head teacher
on the school grounds, during the school hours,
in the presence of
his pupils the accused proved himself as the most arrogant person. He
did not respect the school. He did not
respect himself. He did not
respect the head teacher. He did not even respect those

18

school
children and their rights to use without hindrance the school
grounds.

e young
and impressionable children must have been adversely affected by such
demonstration of violence by this accused. Worse still,
that act of
violence had deprived them of the services of their teacher. The
courts must be seen to do more than just frown on
such an
irresponsible action. The community has been deprived of the services
of one of those people who are involved in the development
of
manpower for the benefit of the nation as a whole.

The
accused is sentenced to (10) ten years imprisonment.

K. J.
GUNI

JUDGE

15th June
1999

For Crown
: Miss Nku

For
Defence: Mr. Klass