CRI/T/5/81
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
v
1.      MOSELI MOSELI
2.      KOPANO KHORORO
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai
on the 11th day of September, 1981
The two accused before Court are charged with the
crime of murder, it being alleged that :
"Upon or about the 4th July, 1980 and
at or near Qethane Ha Khauta, in the
district of Berea, the said accused,
one or the other or both of them,
acting unlawfully and with intent to
kill, did assault Tlali Mokhosi and
inflicted upon him certain wounds or
injuries from which Tlali Mokhosi
died at Maluti Hospital, Mapoteng on
the 5th day of July, 1980."
They have both pleaded not guilty to the charge.
The evidence has disclosed that on the evening of
Friday the 4th July, 1980, P.W.5 Ariete Tseka was selling
sesotho beer at the home of her sister-in-law, 'Mamotlalepula
Tseka, who has not testified before this Court. Although
she admitted that there was an accordion playing in the
house in which she was selling her beer P.W.5 denied that
there were people dancing or playing at that time.
2/ However,

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However, P.W.4, Molaoli Mokotjo, a cousin of accused 1,
told the Court that he was dancing or playing with many other
people in the beer house as the accordion played. Indeed,
accused 1 told the Court that there were people playing in
the beer house and he had gone to P.W. 5's place because
a music instrument was being played. In my view it would
be a curious thing that an accordion was being played in
a beer house full of many people and yet there was no
singing or dancing in respond. P.W. 5 told the Court
that the Chief of the village in which she was selling
beer did not permit late selling of beer and playing of
the accordion. That may account for her attempt to hide
the fact that there was noise and dancing during the
selling of beer on the evening in question. The evidence
of P.W.4 and accused 1 is, in my view, more sensible than
that of P.W.5 and I am prepared to accept it as the truth
on this point.
It was common cause that the two accused were present
at the beer house on that evening and when he arrived accused
1 was in the company of a woman by the name of 'Mantoetse
who also did not testify before this Court. After some
initial hesitations, P.W. 4 admitted that he knew that
'Mantoetse was a secret lover of both accus d 1 and the
deceased. Accused 1 admitted that 'Mantoetse was his secret
lover and that was one of the reasons why he had gone for
drinking with her on that day.
While accused 1, 'Mantoetse, P.W.3, P.W.4 P.W.5 and
many other people including accused 2 were at the beer house,
the deceased who was a stranger to the two accused and P.W.5
arrived. P.W.5 told the Court that although at that stage
accused 2 had already bought two scales of Sesotho beer she
3/ was

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was positive that accused 1 and 'Mantoetse had not yet
bought any beer from her and they appeared quite sober.
That accused 1 was still sober at that time was confirmed
by P.W.3 and P.W.4.who themselves had admittedly taken
one or two scales of Sesotho beer and were not as yet
drunk. Accused.1 however disputed the evidence of P.W.3,
4 and 5 and told the Court that he had at that stage already
bought 60c worth of beer after he had spent about M4 on
Sesotho beer in another village before coming to P.W.5's
place. He had all the time been drinking with 'Mantoetse
only and they were taking 10c scales which are larger than
5c scales. That means accused 1 had taken about 23 scales
of Sesotho beer. In my view, if it were true that accused 1
had a belly to contain that quantity of Sesotho beer he
would be unable to move or talk properly. As the saying
goes he would be "as drunk as a lord" and totally unable
to know what he was doing. As it will be shown in the
course of this judgment, accused 1 was perfectly aware of
and able to react to what was happening around him. He
may have taken some beer that day but not the quantity
he wants this Court to believe he has. I have no hesita-
tion in rejecting any suggestion that he was so intoxi-
cated, at the time the deceased arrived at P.W5's beer house
on that day, that he could not know what he was doing.
Accused 2 admitted to have taken about 2 scales of Sesotho
beer at the time the deceased arrived. He too claimed
to have been very drunk. He was, however, able to see
that other people were drunk. He clearly saw what the
deceased did on his arrival. He saw the fight between
the deceased and accused 1. He took the decision to go
and join accused 1 in the assault on the deceased. He
ran after the deceased and accused 1 to intervene by
4/stopping

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stopping the latter from assaulting the deceased. I am
not convinced that a person who was as intoxicated as he
wants this Court to believe he was, can be able to do all
these things. Although he may have taken about 2 scales
of Sesotho beer I am convinced that he was not so drunk
as not to know what he was doing.
According to the evidence of P.W. 4 and P.W. 5 on his
arrival the deceased entered the beer house and called at
'Mantoetse to come out with him for a talk. 'Mantoetse
was hesitant to go out but the deceased grabbed and let
her out of the house. A somewhat rowdy and scandalous
conversation about their love affair in the Republic of
South Africa took place between 'Mantoetse and the deceased
on the fore-court outside the beer house. All this was
confirmed by the two accused and P.W. 3, a nephew of
the deceased. The squabble between 'Mantoetse and the
deceased was so nasty that P.W. 5 had to go out of the
beer house to put an end to it. Accused 1 himself told
the Court that he was disgusted by the revelation that
'Mantoetse had another lover besides himself.
Although P/W. 5 wanted to impress the Court that
when he spoke to and grabbed 'Mantoetse out of the house,
the deceased was in a peaceful mood, P.W. 4 noticed that
accused 1 got disturbed. Accused 1 himself told the Court
that he was annoyed by what the deceased was doing to his
lover. This coupled with the fact that the moment they
were outside the house 'Mantoetse and the deceased kicked up
a row which worried P.W. 5 herself leaves me with no doubt
in my mind that the deceased was not as peaceful as P.W. 5
would like this Court to believe. I accept the evidence
that the deceased was aggressive as he spoke to and
grabbed 'Mantoetse out of the house.
5/ When

When she came to the fore-court of the beer house
where 'Mantoetse and the deceased were quarrelling P.W.5
learned from the latter that he was the maternal uncle
of P.W.3 and one Khathatso who has also not given evidence
before this Court. She then instructed P.W.3 and Khathatso
to take their uncle away from her place. They complied.
'Mantoetse however queried P.W.5's decision to dismiss
the deceased whom she claimed was her husband.
According to the evidence of P.W.3 confirmed by P.W.5
and P.W.4 the deceased walked away in the company of
Khathatso and P.V.3 himself without any resistance and
'Mantoetse followed them.
P.W.4 told the Court that at the time the deceased
spoke to 'Mantoetse and before she was taken out of the
beer house accused 1 walked out of the house and went to
the nearby kraals from which direction he later saw him
emerging. P.W.3 confirmed that he had seen accused 1
going to and later emerging from the direction of the
kraals. P.W.5 did not notice at what stage accused 1
had left the beer house. She, however, later saw him
emerging from the direction of the kraals. Accused 1
denied this. I can see no sensible reason why P.W.3, 4
and 5 should fabricate against accused 1 on this point. .
I accept as the truth their evidence that they saw accused
1 emerging from the direction of the kraals.
As he emerged from the direction of the kraals,
accused 1, with his stick raised up, was seen by P.W.4
and P.W.5 going to where the deceased and Khathatso,
closely followed by 'Mantoetse, wore. This was confirmed
by P.W. 3 who was, at that time, on the fore-court of the
6/beer

beer house, after he had temporarily returned there to
leave the scale of beer he had been holding in his
hands when he complied with P.W.S's request that they
should take away the deceased. Accused 1 caught up with
the deceased and his party and was seen by P.W.5 and
P.W. 3 hitting 'Mantoetse on the back of her body with
his stick. This was confirmed by P.M.4 although according
to him-Khathatso was not with the deceased and 'Mantoetse
at that time, I have no doubt that P.W.4 was making a
mistake here because the evidence of P.W. 3 that he and
Khathatso were taking away the deceased on the request
of P.W.5 was confirmed by P.W.5, the person who obviously
had an interest in the deceased leaving the place and
was therefore observant that the deceased in fact left
the place. P.W.3 left the deceased and returned to the
beer house only to leave his scale of beer. I see no
reason why Khathatso who was also willing to take the
deceased away should have suddenly left him and vanished
at that stage.
According to the evidence of P.W.4. P.W.3 and P.W.5,
the blow which accused 1 delivered on 'Mantoetse was not
a hard one. The deceased who had been walking ahead of
'Mantoetse then turned round, obviously wondering what
was happening. It was as the deceased turned round that
accused 1 swore at the deceased and, clearly using great
amount of force, delivered a blow on his forehead with
the stick.
At that time accused 2 came to the scene. According
to the evidence of P.W.5 and P.W.4 accused 2 also came
from the direction of the kraals. P.W.3, however, said
accused 2 was coming from the fore-court of the beer house.
7/ Whether

-7-
Whether accused 2 came from the fore-court of the beer
house or the direction of the kraals one thing important
is that P.W.3, P.W.4 and P.W.5 all testified that, on
arrival he too hit the deceased a blow with a stick on
the back of the head. The deceased then started running
away and was hotly pursued by the two accused.
The defence version was slightly different. According
to the evidence of the accused at the time 'Mantoetse and
the deceased squabbled on the fore-court of the beer house
accused 1 was still on the fore-court and as a result of
the scandalous conversation he told 'Mantoetse that they
should leave for their home. 'Mantoetse complied and the
two were on their way home when the deceased followed them.
When he caught up with them the deceased, who was admittedly
not armed with any visible weapon, grabbed and swore at
accused 1 before hitting him with an open hand on the face,
complaining that he (accused 1) was the one misleading
'Mantoetse. Accused 1 got completely upset by what the
deceased did. In his confusion accused 1 hit the deceased
a blow on the forehead with his stick when the latter
started running away. Accused 1 chased the deceased with
a settled intention to drive him, once and for all, from
that area. When they came behind the houses of one Daemane
the deceased picked up a stone which he threw at accused 1.
Accused 1 dodged the stone and as the deceased was picking
up another stone to throw at him he hit him a second
blow on the head with the stick. The deceased fell to
the ground. Accused 1 was_still belabouring him on the
ground with his stick when accused 2 arrived and intervened
by holding him away from the deceased. They left the
deceased lying on the ground. According to the accused,
8/the

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the injuries found on the deceased were inflicted by
accused 1 alone and accused 2 did not assault him at all.
I have already accepted the evidence of P.W.3, P.W.4
end P.W.5 that they clearly saw accused 1 coming from the
direction of the kraals and assaulting the deceased
where he was with 'Mantoetse. I do not, even for one
moment, believe the defence story that the deceased, a
stranger in the village, who was not even armed with
any weapon could have attacked accused 1, who was clearly
armed with a stick, in the manner described by accused 1.
It is just a desperate attempt to cover the truth that
accused 2 also assaulted the deceased as testified by
P.W.3, P.W.4 and P.W.5. I have no hesitation therefore
in accepting as the truth the evidence of P.M.3, P.W.4
and P.W.5 that accused 1 joined by accused 2 assaulted
the deceased, in the manner they described, before he
started running away.
P/W. 3, 4 and 5 told the Court that when he was thus
assaulted by the accused the deceased ran passed the fore-
court of the beer house and out of their view in the
direction towards Daemane's houses with the two accused
in hot pursuit. The chase was so frightening that P.W. 3
and P.W.4 were afraid to go to the rescue of the deceased.
When she saw the deceased assaulted and chased in that
manner, P.W.5 feared for his life and raised the alarm.
She and two men, Letsatsi and Khathatso, followed the
direction in which the deceased was chased by the two accused.
Although the deceased and his assailants were out of their
view P.W.5 and P.W.4 could hear the deceased screaming
"Jo! I die, I die!" in the direction of Daemane's houses.
P.W.5 told the Court that, apart from the screams, she
could also hear the sound of repeated blows of sticks as
she approached Daemane's houses. On the way P.W.5 was
met by accused 1 who was already returning from the
direction of Daemane's. He was still aggressive and swore
9/ at her

-9-
at her before pocking her on the chest with his stick
and angrily asking her where 'Mantoetse was. She replied
that she did not know where 'Mantoetse was and accused 1
passed away. She remembered at that stage slightly seeing
accused 2 followed accused 1 on their way back.
When she came next to Daemane's houses, P.W.5 found
the deceased having fallen on his face and Letsatsi and
Khathatso trying to assist him to a sitting position.
The deceased could neither speak nor open his eyes. He
was bleeding through the mouth, the nose, the ears and
had great difficulty in breathing. He had sustained
head injuries which Letsatsi was bandaging with a doek
to stop the bleeding. No medicine of any sort was used
to treat the injuries on the deceased.
P.W.3 confirmed that, after reporting to his mother
what had happened to his uncle, the deceased, he went
looking for him and eventually found him in a pool of blood
next to Daemane's houses where Letsatsi, Khathatso, P.W.5
and other people were assisting him. The deceased was
speechless and could not close his mouth. P.W.3 found a
vehicle in which he conveyed him to Mapoteng Hospital.
No additional injuries were sustained by the deceased
while he was being conveyed to the hospital.
At Mapoteng Hospital P.W.3 was present when the hair
was cleaned around deceased's head injuries and his wounds
washed before he was taken into the operating room. He
noticed that the deceased had a broken jaw, multiple
wounds on the head and a depression on the head above the
ear. Immediately after the deceased had been taken into
the operating room the medical doctor, P.W.2, arrived.
10/After

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After a short prayer had been recited P.W. 2 ordered
him and his party to leave the room.
P.W.3 then returned home. On the following day
which was a Saturday, he returned to the hospital only
to find that the deceased had passed away. He went to
report to the police at Mapoteng. He was present when
the body was removed by P.W.6, a Police Officer, to T.Y.
Government hospital for post-mortem examination. He
accompanied the body and was the one who identified it
before the medical officer, P.W.1 as that of his uncle the
deceased. That was on the 8th July, 1980, On the same
day he accompanied the body back to Mapoteng and then
took it for burial.
P.W.6 testified that on 6th July, 1930 he received
a report about the death of the deceased. He went to
Mapoteng mortuary where P.W.3 identified to him the body
of the deceased. He noticed that the body had multiple
injuries on the head and the face. Seven wounds on the
head and five on the face.
P.W.6 then went to accused's home where he found
the two accused at a beer house with some other people.
After identifying himself and explaining to the two accused
that he was investigating the death of one Tlali Mokhosi
(deceased) accused 1 and accused 2 handed their sticks to
him, Exhibit 1, and Exhibit 2, respectively. P.W. 6 took
possession of the sticks, arrested the accused and
brought them to his Police Station. He confirmed the
evidence of P.W.3 that he took the body of the deceased
to T.Y. Hospital for post-mortem. The body of the deceased
was on 8th July, 1980 identified before P.W.1 by P.W.3 as
11/ that

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that of the deceased.
The evidence of P.W.2, the medical doctor at Mapoteng
Hospital, was that on 4th July, 1980 he treated the
deceased and noticed the injuries on him. The deceased
had multiple bruises on the head: several sculp (3)
lacerations 7-10 cm, skull fracture, and broken jaw.
He formed the opinion that a blunt instrument, such as
sticks Exhibit 1 and 2, could have been used to inflict
the injuries on the deceased and great force must have
been used to inflict those injuries as the skull bones
were separated. In his treatment he consentrated on
the broken jaw as his patient was unconscious and the
tongue could have easily slipped inside the throat thus
choking him to his immediate death. With the help of
his nurses the lacerations were sutured. According to
P.W.2 the patient was afforded the best available
treatment at the hospital and it could not have precipitated
his death. The patient simply could not have survived
with the injuries he had sustained. He certified him
dead at 4.30 a.m. on the 5th July, 1980, the cause of
death being brain damage resulting from the head injuries.
P.W.1, the medical officer at the Government hospital
in T.Y. conceded that on the 8th July, 1980 he performed
the post-mortem examination on the dead body of the deceased.
The body was identified before him by P.W. 3 as that of the
deceased. He formed the opinion that death was due to
brain damage and subdural haemorrhage resulting from
multiple cracked and depressed fractures of the skull.
He too testified that a blunt instrument could have been
used to inflict the injuries on the deceased and great
force must have been used. As the body was deeply frozen
12/ he could

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he could not tell the exact date of death but in his
estimation it could have occurred about 2 days prior
to his examination. He noticed 5 lacerations on the
scalp with total 11 stitches, abrasions on the right
arm and chin. The parietal bone was cracked, The
frontal bone was depressed and part of the brain could
be seen. In his opinion the deceased could not have
survived with the injuries on him.
I see no valid reason why the evidence of P.W.2
that, notwithstanding that the best treatment available
at Mapoteng Hospital was afforded to him, the deceased
died as a direct result of the injuries inflicted upon
him should be doubted and I am prepared to accept it
as the truth.
It is clear from the evidence I have accepted that
at the time he was leaving the beer house the deceased
was followed and assaulted by accused 1 joined by accused 2
in the manner described by P.W.3,4 and 5. The deceased
was leaving the beer house on the instructions of P.W.5,
the owner of the place, and it cannot be said he was
doing anything wrong at that time. The accused's attack
on him at that time was no doubt unlawful. It has been
suggested that when accused 1 came to where the deceased,
Khathatso and 'Mantoetse wore, the deceased was the first
to attack accused 1 and as P.W. 3,4 and 5 were at a
distance they could have missed to notice it. There is
no evidence to support this suggestion. On the contrary
P.W.3 and 5 were positive that the deceased had not in any
way assaulted accused 1 when the latter hit him a blow
with his stick. The suggestion has no basis and it is
13/ therefore

-13-
therefore rejected. Assuming, for the sake of argument,
that the deceased did attack accused 1 as suggested by the
defence it seems to me the assumption cannot take the
defence case very far for there is evidence which I have
accepted that when he was hit a second blow by accused 2
the deceased then started running away in the direction
of Daemane's houses. That being so, the deceased was
placing the accused in no danger at all and there was
no need to chase and continue the assault on him. The
two accused were however clearly seen by P.W.3,4 and 5 chasing
the deceased in the direction of the place where he was,
shortly after, found brutally assaulted. Indeed, the
defence did not seriously dispute the evidence of P.W.3,4
and 5 that as the deceased ran away the two accused, armed
with sticks, pursued him. The defence contention was
that as he ran after the deceased accused 2's intention
was to intervene by stopping accused 1 from continuing
the assault on the deceased.
I have accepted the evidence of P.W.3, 4 and 5 that
when accused 1 started assaulting the deceased accused 2
came to them and instead of intervening on behalf of the
deceased they clearly saw him joining accused 1 in his
assault on the deceased. They saw the deceased then
running away and the two accused following him in hot
pursuit. If accused 2 really had the intention to stop
accused 1 from continuing the assault on the deceased he
could have easily called on him to stop or raised the
alarm for people to come to the rescue of the deceased.
This he did not do. After the deceased had been brutally
assaulted where he was found, next to Daemane's houses,
accused 2 was seen by P.W.5 following accused 1 on their
14/way back

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way back to the beer house. In his own testimony accused 2
saw accused 1 belabouring the deceased with a stick and
must have been aware that the deceased, whom he claims
to have intended to rescue, was fatally injured. He did
nothing to assist. Instead he returned to the beer house
with accused 1 leaving the fatally injured deceased to
die like a dog. This in my view, does not picture accused
2 as a person who ran after the deceased with the sympathy
he would like this Court to believe he had. It seems to
me highly probable that he and accused 1 continued their
assault on the deceased where he was found in a critical
condition next to Daemane's houses.
However, apart from accused 1 and accused 2, none if
the witnesses was present and, therefore, saw when the
deceased was actually assaulted next to Daemane's houses.
On the evidence, the possibility that accused 2 may have
changed his mind and desisted from assaulting the deceased
cannot be totally excluded. That granted, it must be
accepted that on the evidence it has not been proved
beyond reasonable doubt that accused 2 took part in the
assault on the deceased next to Daemane's.
Although on the evidence I am satisfied that accused 2
did assault the deceased before the latter started running
away, I must have a doubt as to whether he continued the
assault next to Daemane's houses. The benefit of that
doubt goes to accused 2.
What now remains to be considered is whether in their
assault on the deceased the two accused had the requisite
subjective intention. The defence has raised the special
defences of intoxication and provocation.
15/ The law

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The law governing intoxication as a special defence
is the Criminal Liability of Intoxicated Persons Proclamation
NO. 60 of 1938 (Laws of Basotholand Vol.11 1960 Ed.)
Section 2(2) provides :
"Intoxication shall be a defence to any
criminal charge if by reason thereof the
person charged at the time of the act or
omission complained of did not know that
such act or omission was wrong or did not
know what he was doing and-
(a)     the state of intoxication was caused
by the malicious or negligent act of
another person; or
(b)     the person charged was by reason of
intoxication insane, temporarily or
otherwise, at the time of such act
or omission.."
It is clear from the provisons of this section that
in order to establish the defence of intoxication two
requirements must be proved. Firstly: that the accused
was so drunk that he did not know that what he was doing
was wrong or did not know what he was doing. Secondly:
that the state of his drunkeness was caused involuntarily
or that it amounted to insanity.
In the present case I have found on the evidence that
even if the accused had taken some sesotho beer they were
not so intoxicated as not to know what they were doing..
It cannot therefore, be said that the first requirement
has bee proved to satisfy the establishment of intoxication
as a defence within the meaning of the Proclamation. The
defence of intoxication must therefore fall away on this
point alone. Even if I were wrong in holding that on the
evidence it has not been established that the accused were
so drunk as not to know what they were doing, there
was no evidence at all to suggest that the accused's
16/ drunkeness

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drunkeness was involuntary or amounted to insanity. It
follows therefore that on the evidence before the Court
intoxication within the meaning of Proclamation 60 of 1938
above has not been established and cannot be relied upon
as a defence in this case.-
On the question of Provocation, Section 3(1) of the
Criminal Law (Homicide Amendment) Proclamation NO, 42 of 59
(Laws of Basotholand V01. II, 1960 Ed.) provides :
"(a) A person who
(a)     unlawfully kills another under
circumstances which but for the
provisions of this section would
constitute murder: and
(b)     does the act which causes death
in the heat of passion caused by
sudden provocation as hereinafter
defined and before there is time
for his passion to cool is guilty
of culpable homicide only."
In terms of Section 4(a) of Proclamation NO. 42
of 1959 above, "provocation" is defined as :
"any wrongful act or insult of such
a nature as to be likely, when done
or offered to an ordinary person or in
the presence of an ordinary person to
another person who is under his immediate
care or to whom he stands in a conjugal,
parental, filial or fraternal relation
or in the relation of master or servant,
to deprive him of the power of self-
control and to induce him to assault
the person by whom the act or insult
is done or offered."
I have accepted the evidence that accused 1 and the
woman, 'Mantoetse were lovers and going together when
they arrived at P.W.5's beer house. I have also accepted
the evidence that when he arrived at the beer house the
deceased, a stranger in the village and another lover of
17/'Mantoetse

-17-
'Mantoetse, but most likely unknown to accused 1, aggressively
talked to and grabbed 'Mantoetse out of the beer house where
they had their scandalous conversation. In my view deceased's
conduct was provocative. It has been argued that even if
the conduct of the deceased were provocative it would
not constitute provocation to accused 1 within the meaning
of the Proclamation for the reason that 'Mantoetse was
not his wife and the two did not fall within any of the
relations mentioned under Section 4(a) of the Proclamation.
I am not convinced that as enumerated under the provisions
of section 4(a) the relations of people who can be provoked
are exhaustive. If one were to put oneself in the shoes
of accused 1 it would not be so difficult to understand
that the conduct of the deceased under the circumstances
must have been provocative to him.
Under the provisions of Section 3(1)(6) for provo-
cation to reduce murder to culpable homicide the accused
must have acted in the heat of passion caused by sudden
provocation and before there was time for his passion to
cool. In the present case however there is evidence
indicating that when the deceased by his conduct provoked
accused 1 the latter was not so provoked as to be unable
to control himself. He went out of the house and was seen
walking to the kraals which were some distance away. He
later emerged from the direction of the kraals and walked
another distance to reach the place where he started
assaulting the deceased. He cannot therefore be said
to have acted in the heat of passion by sudden provo-
cation and before there was time for his passion to cool.
Provocation cannot therefore be relied upon in this case.
18/ The

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The sticks, Exhibit 1 and 2, with which the accused
were armed on the day in question were the heavy type
wrapped with black tapes normally carried about by men
from the mines in this country. The two accused were
positively seen by P.W.3 and 4 using these sticks in
their assault on the deceased before the latter started
running away. The head of a human being is a particularly
vulnerable part of the body and in hitting the deceased
hard blows on the head with sticks such as Exhibit 1 and
2 the accused, to say the least, clearly had the legal intention
to cause him grievious bodily harm.
In his own evidence accused 1 told the Court that
when he overtook the deceased next to Daemane's houses
he belaboured him even after he had already fallen to the
ground and was completely defenceless. That he hit the
deceased several blows on the head is perfectly consistant
with the medical evidence according to which the deceased
had sustained multiple head injuries as a result of which
death resulted. Having regard to the heavy stick used
by accused 1 in his assault on the deceased; the amount
of force applied to inflict the injuries on the deceased
and the numerous wounds actually inflicted on the deceased's
head, there is no doubt that in assaulting the deceased
in the way he did accused 1 was embarking on an act which
was likely to kill and he knew was likely to kill the
deceased. He was nevertheless reckless whether death
will ensue. As it was stated by Hoexter J.A. in S. v Mini,
1963(3) S.A. 188 :
"A person has the necessary intention
to kill if he appreciates that the
injury which he intends to inflict
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on another may cause death and
nevertheless inflicts that injury,
reckless whether death will ensue
or not."
I have no doubt in my mind that in the circumstances
of this case accused 1 had the requisite intention to
kill, if not direct at least legal.
In the premises I have no alternative but to find
accused 1 guilty of murder as charged. Accused 2 is
found guilty of assault with intent to do grievious
bodily harm.
My assessors agree.
EXTENUATING CIRCUMSTANCES :
The Court has already found that accused 1 is
responsible for the unlawful and intentional killing
of the deceased, Tlali Mokhosi. What now remains to
be determined is whether or not, on the evidence, there
are circumstances which serve to diminish the moral
blameworthiness of accused 1 for his conduct.
It is trite law that in determining the issue of
extenuating circumstances, nothing which in fact influenced
the accused's mind or emotions and thus his conduct
should be ruled out of consideration even if it were
unreasonable for him to be so influenced.
In the present case I have found, on the evidence,
that in aggressively talking to and grabbing 'Mantoetse
out of the beer house the deceased, a stranger in the
area, was conducting himself in a provocative manner to
accused 1, who admittedly was a lover of and going
along with 'Mantoetse. Although I have rejected the
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defence's contention that accused 1 had consumed the
quantity of sesotho beer he wished this Court to
believe he had, I accepted that he had been drinking
on the day in question and his state of mind was
naturally affected to some degree.
I have rejected the argument that, on the evidence,
the provocation which had been offer to accused 1 and
the quantity of beer he might have consumed on the 4th
July, 1980 were such as to serve as a defence to a
charge of murder. They are,however, facts to be properly
taken into account for purposes of extenuating circums-
tances. I have, therefore, taken them into account and
come to the conclusion that extenuating circumstances
tending to reduce the blameworthiness of accused 1 do
exist in the present case. The verdict in respect of
accused 1 should, therefore, be the one of guilty of
murder with extenuating circumstances and it is accordingly
found.
My assessors agree.
SENTENCE:
Mr. Maope for the Crown points out that the two
accused have no previous convictions.
In mitigation Mr, Sooknanan, for the accused,informs
the Court that accused 2 has been in custody since the
6th July, 1980; be is married with two children; and
has most certainly lost his work in the Republic of
South Africa.
Accused 1 has spent 10 months in custody before he
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was released on bail; a civil action for compensation
is most likely pending against him as a result of the
deceased's death; and the two accused have been most
co-operative with the police.
The Court takes into consideration the points that
have been raised on behalf of the accused. However,
the offences with which the accused have been convicted
in this case are serious and, in my view, merit equally
serious sentences if a repetition of the type of counduct
of which they have been convicted were to be avoided.
In the circumstances I come to the conclusion that the
following sentences are appropriate.
Accused 1 : Eight (8) years imprisonment.
Accused 2 : Three (3) years imprisonment, to run
retrospectively from the 6th July, 1980,
the date on which he was detained in
custody.
ACTING JUDGE.
11th September, 1981.
For the Crown : Mr. Maope
For the Defence : Mr. Sooknanan