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."
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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