CRI/T/36/85 IN THE HIGH COURT OF LESOTHO
In the matter of:
v THOKO LEBITSA
Delivered by the Honourable Acting Judge, Mr. Justice
M.L. Lehohla, on the 5th day of September, 1986.
The above accused is charged with murder:
In that upon or about 29th day of January, 1985, and at
or near Ha Rannakoe, in the District of Mafeteng, the said accused
and intentionally kill Ramohau Phinithi.
Accused pleaded not guilty to the charge. On behalf of
the accused, Counsel for defence made the following admissions:
the evidence of P.W.6 at P.E. Detective
the evidence of P.W.7 at P.E. Khathatso Phinithiand
on some contingent basis,
the evidence of P.W.1 at P.E. Dr. Gyasi-AgyiNYAMEKYE
who, however, came just after the
opening of defence case and whose evidence was heard
granting of an application for the re-opening of the
Crown case for the purposes of hearing his
oral evidence otherwise he is to be referred to as
P.W.4 in these proceedings.
The evidence of P.W.6 at P.E. was to the effect that he
is a member of the Lesotho Mounted Police attached to the C.I.D.
at Matelile. On 30th January, 1985, he received a report
following which he proceeded to Ha Rannakoe. On arrival there, he
the body of the deceased. The body was lying outside the
decease's garden but close to it. The body was still clothed. P.W.6
undressed the body, examined it and saw a hole in the vest.
This hole seemed to have been caused by a sharp object. The witness
an open wound on the left side of the chest. There were no
other external injuries besides that one. The body was later taken to
the mortuary and it suffered no further injuries in the process.
P.W.7 at P.E. testified that he is the uncle of the
deceased. Having received a report relating to the deceased he went
deceased's home. The deceased was already dead. He
didn't see any
injuries on the deceased. He identified the body before
performed a post mortem examination. He later buried the
body at home afterwards.
The first witness P.W.I Joseph Bofihla Mejaro gave oral
evidence before this Court and testified that he is a Warrant Officer
at Matelile Police Post in the Mafeteng District. He knows
the accused. On 29th January, 1985, he received a report following
he sent police on patrol on 30.1.85. After the patrol left,
accused came to him at the office between 8 and 9 a.m. Accused said
had come to report himself in connection with a fight he had with
somebody the previous day. Accused gave P.W.1 an explanation and
handed him a knife. P.W.1 cautioned the accused and warned him
that should he make a statement such statement would be
recorded and used in evidence against him. Accused expressed his
to go on with the conversation at the end of which P.W.1
laid a charge against the accused.
Under cross-examination P.W.1 testified that he sent out
a police patrol after he had received a report that a person had
happened to know about this, through deceased's relative who
had come to the police station on 29-1-85. The relative was one
or Tello Phinithi.
In answer to a question put by one of the gentlemen
assessors. P.W.1 stated that at the time he came to make the report
normal except for the time when P.W.1 told him that
the report received regarding the knife was that the man on whom it
The next witness for the Crown was P.W.2 Tello Phinithi
who testified that he is illiterate but however knows the calendar
in Sesotho language. He is related to the deceased.
On 29-1-85 P.W.2 was at home building a kraal. He heard
accused's voice. Accused was shouting after a herdboy who was herding
and goats. He was shouting that the herdboy should leave those
animals where they were and that he (accused) would see to the man
who was saying they should be removed. P.W.2 indicated that he was
between 100 and 120 paces away from the accused. He further testified
that accused was obstructed from view. P.W.2 was occupying a higher
Immediately after the heard the foregoing, he heard
'Matello's voice saying accused should not fight the deceased because
place. There and then P.W.2 went to where he could
see. He saw the deceased standing. Accused was about three paces away
deceased. When he saw the accused and deceased in this
position P.W.2 was about seventy paces away from them. Accused was
deceased. Accused had his hands at the back as he did so.
When accused reached the deceased, accused removed his hands from his
and stabbed the deceased. Before the stabbing P.W.2 had heard no
altercation between the two. Had there been one, he says he would
have heard it as he was approaching them fast. P.W.2 heard accused
saying "I will kill you" after stabbing the deceased
knife. Accused said again "I am telling you I'll kill you."
Accused was leaving the deceased there as he uttered
P.W.2 said he could not identify the knife because the handle was
covered by accused's hand. He only saw the blade which,
indicated, could be about 6 inches long. As accused turned back and
left the deceased, P.W.2 came rushing to where deceased
after being stabbed. Deceased had moved some five or so paces from
the point of his encounter with accused and sat there.
lay on his side.
The herdboy drove away the sheep which had been grazing
where accused had said they be left to graze. The sheep belong to
the accused's father. The sheep had been, according to
P.W.2, grazing in deceased's yard.
P.W.2 held the deceased up but deceased appeared to be
Deceased had a knife wound below the left breast. He
died in P.W.2's hands. The latter raised an alarm and people came in
P.W.2 went to report to the chief who in turn handed him
a letter to take to the Matelile Police Station where P.W.2 reached
The stabbing had taken place towards sunset. P.W.2 was
accompanied to Matelile Police Post by the chief's messenger, a
Police arrived the following morning, waited for their
vehicle after examining the body in the presence of P.W.2. When the
arrived,the body was loaded in it and conveyed to the
mortuary at Mafeteng where it was examined by P.W.4 and later
released to relatives
P.W.2 testified that accused and deceased were not on
Under cross-examination learned Counsel for defence
taxed this witness for saying he knows accused because he and accused
villagers instead of saying he knows him because they are
relatives. It was suggested that blood relationship should come
the relationship based on the fact that accused and this
witness lived in the same village. P.W.2 conceded but denied that he
ignored this obvious and natural rule because of his bias against
To the questions: "Where were you building
thekraal ? At my home.
Where was accused ? I did not see him while I was
building, I only heard his voice.
Can you hear conversation between accused and deceased
from the distance of deceased's home ...." I could.
How good is your hearing ? I don't know.
I put it to you you don't have good hearing ? It is
good", he replied.
P.W.2 testified that from his own home he could see
'Matello's home. However, he could not see 'Matello because when he
voice, she was not at her home. He only saw her when he
came to view and she was in a path leading to her home. When she fell
view she was not far from him. He further stated that the
horse which deceased had been riding belonged to 'Matello. Deceased
looked after it. Deceased had dismounted the horse at 'Matello's
home on arrival from the fields. He denied that the horse was at
time grazing in the yard behind accused's house.
He further stated that during the hoeing done at
accused's father's field he could see the horse in the fields away
from home. The
distance between P.W.2 and the fields was estimated at
about 400 paces (from witness box to King's Way). In P.W.3's
same distance was estimated at around a kilometre.
P.W.3 however, said because P.W.2 is the one who usually does the
pacing of lands
during ploughing season, she deferred to P.W.2's
estimation as opposed to hers.
Taxed further as to how he could see the wound on the
deceased despite the fact that not only was the wound covered by the
by deceased but also the fact (as deposed by this witness
P.E.) that deceased had placed his hand over the wound,
P.W.2 said he could see blood oozing around the hand.
To the question: "There is a difference between
blood and wound .... ? None; Blood comes from
Was deceased bare - breasted ? He had
a vest and overall.
You saw the wound through the vest and overall ...? The
overall was unbuttoned.
The vest ? It was punctured. I had
seen accused stab ", he replied.
P.W.2 further testified that his home and 'Matebello's
are equidistant from the scene of the incident. On coming into view,
he estimated that he must have been closer to accused and
the deceased than 'Matello. This is why he could see the knife blade
as opposed to 'Matello's testimony on this point that she
only saw accused's fisted hand striking at deceased. P.W.2 insisted
he went rushing to the scene because he had seen the knife used
by accused in stabbing the deceased. In reply to the question put
him that at that distance he couldn't have seen the knife because it
is not as long as he estimated it, he replied that if it
is not that
long then accused may have changed it. He denied the suggestion
whether accused showed him the knife after stabbing the
deceased with it. In answer to that he said "No, he pocketed it
back pocket and left."
P.W.2 vehemently denied that deceased used to tether
'Matello's horse in accused's yard. He was adamant that deceased
used to tether
the horse in the public grave yard. The grave yard, it
appears, is behind accused's parents' house. He further stated that
the horse had been tethered there by deceased, accused
would come and untether it claiming that the area there is in his
further denied that prior to the stabbing, there had been
any fight between accused and deceased. He also pointed out that
refused to come to deceased's assistance. Chele had been closer
to deceased than was Letutla who even by-passed him standing there
and came to assist the deceased.
P.W.2 insisted that accused said to deceased after the
latter had been stabbed "I'll kill you." Asked what
if anything after the stabbing, he replied: "Come
and see what you have done" to this accused said: I'll kill you
telling you," and left. He further said there was bad blood
between deceased and accused manifested by accused untethering the
horse tethered by deceased at least twice in the area in question,
namely the grave yard.
P.W.3 'Matello Phinithi testified that she had gone to
the lands on 29-1-85 to thrash wheat. Deceased came to collect wheat
just been thrashed. On returning from
the lands, deceased came to P.W.3's yard. Accused's
father and deceased's father are related.
Deceased gave her a report and ran. He was running
towards his yard. P.W.3 came following but at some point waited and
saw sheep in deceased's yard. Deceased drove them and
the herdboy away from that yard. While at about from the witness box
new Government complex, P.W.3 saw accused come at deceased in
full run and deliver a fisted blow at deceased's chest region. Before
then P.W.3 had shouted to accused saying "Where are you running
to and for what are you running to Ramohau?" She testified
accused sometimes fights the deceased. She thus feared that he was
running to fight the deceased one more time. She went into
to drop the basins she had been carrying from the fields. On coming
out she saw the deceased sit down. There and then she
supporting the deceased. She also went up there. When she arrived
there were many people running towards the scene. Others
When last she saw accused run to deceased she only saw
him strike at deceased. Thereafter accused ran away. When she came to
she saw a wound below deceased's breast. It looked as if
caused by something sharp. P.W.2 left for the chief's place to
later came back in the evening and joined people who were
keeping vigil around the deceased. Police came the following
She testified that during the day deceased had tethered
the horse in her own field which was not under crop. She said her
separated from Chele's by a donga. Deceased had gone to hoe
in Chele's field while waiting for wheat to be filled in bags in
field and in turn loaded on the horse and donkeys and carried
to P.W.3's house.
She corroborated P.W.2's evidence that deceased and
accused used to fight. She detested the swearing done to deceased by
accused is by far the deceased's junior and owed him
respect. She further said accused used to untether the horse from the
yard next to accused's home. Under cross-examination she
testified that deceased had been invited for the hoeing at Chele's
Deceased was using P.W.3's hoe. She further said the only
horse that was in the area was hers having been tethered in her field
deceased who was hoeing next door at Chele's field. The Kaffir
corn hoed was still young i.e. two ears or 1½ feet tall. She said
her horse is big and can be seen from the village to the fields i.e.
a kilometre away or in P.W.2's words 400 paces away. She conceded
that by the expression "deceased used to fight with accused"
she did not mean physical combat, rather she meant the verbal
hurled by accused at deceased and that it was detestable because
accused was deceased's junior. She also conceded that Chele's
were feeding on grass and not crops as there weren't any in
She denied that there was ever a scuffle between
deceased and accused before the incident. She denied that
deceased did at all lash accused with a whip. She said
nothing obstructed her view and that had there been any whipping she
have seen it. She denied that she was prejudiced against the
accused. Under re-examination, she said when she saw accused go to
she was outside her house.
She said before the incident deceased had said to her
"look, Chele's sheep are grazing in my yard, but accused detests
grazing next to his home. She said deceased's yard is not
fenced. She said accused was born in 1957 while deceased in 1936.
The next witness for the Crown was P.W.4 Dr. NYAMEKYE.
Although his evidence at P.E. had already been admitted, it was in
of justice that his oral evidence be heard.
He testified that he conducted a post mortem examination
on the body of deceased on 31-1-85. The body had been identified to
P.W.2 and another. It had been dead more than 24 hours.
Inspecting the knife Exhibit "1" he said it was possible
he saw on the deceased could have been caused by a similar
knife. His report was handed in marked Exhibit "A". He
that death resulted from laceration of the pericardium and
the left ventricle. There was a stab wound in the sixth intercostal
in the mammary line. Under cross-examination he elaborated that
what he said meant that there was a cut or a tear on the left side
the heart. The sac of the heart was torn. The result of the tear was
the bleeding into the heart. The flow of blood into the sac
exerted pressure on the heart muscles. Asked if Exhibit
"1" despite its size could cause the injury referred to, he
"Yes" and elaborated that Chest muscle is less
than 3 centimetres from the heart. He said it was difficult to
the degree of force used because the knife went through
soft tissue but he was of the view that because the knife was not
degree of force used was more than slight.
The Crown closed its case at this stage and the accused
gave the balance of his evidence.
Accused swore that on 29th he left for his sister's
home. On the way he met with deceased who inquired why accused
horse. Accused replied that he had not untethered
deceased's horse whereupon deceased said: "Don't argue with me.
This is my
horse not your mother's," and imprecated a curse on
accused by referring to accused's mother's front passage.
Deceased then struck accused with the handle of his
whip. He hit him the second time and then accused inquired why the
him thus. Thereafter the two grappled. Accused got hold
of the whip. A struggle for its possession ensued. The whip fell
hit accused with fists. Accused did not see anybody
during the struggle. Accused did not see P.W.2 nor did he see P.W.3.
said both these witnesses' homes are out of view from where
he was engaged in the struggle with deceased. He denied having been
against approaching deceased by P.W.3.
During this struggle deceased placed his hand in the
pocket and produced a brown knife. Accused produced his too i.e.
Exhibit "1". When "he (deceased) tried to kill me I
ducked. Then when he tried again
he failed to stab me. Then I stabbed
him as it appeared he had come closer to me. I managed to stab him.
We then parted. He went
away, so did I."
Accused testified that deceased was wearing an overall.
He never thought the knife had penetrated the overall. Accused says
intended killing the deceased, not even seriously injuring
At the time accused went to his sister's home he did not
see any sheep in deceased's yard. He would not expect seeing them
he knew they were far away in the veld.
Accused's reason for objecting to deceased's tethering
the horse in the area was that the horse would overgraze the area and
of this is that when cattle bolted from the kraal at night
they would stray into the fields and destroy
crops because nothing on which they could graze would
beforehand them . Earlier accused had said he objected
to this because
the peg used for tethering the horse would make the soil
loose and thus attract fresh lawn to grow there and consequently the
which would bother him. He said the kraal and the grave yard
are 50 paces apart and that there is no visible border dividing his
father's premises from this grave yard.
-14-On the day in question, the horse was not tethered
After parting with deceased, accused met with a boy
called Lebamang who told the accused that he learnt there had been a
deceased and him. Accused admitted the event. On
hearing from Lebamang that deceased had been injured, accused went
a blanket and set out for the Police Station. He
reached the Police Station the following day and reported himself.
Late in the evening,
police informed him that people had come to
report that deceased had died. Police searched him and found a knife
on him and informed
accused that this was the knife with which he
had killed the deceased. They laid a charge against him, took away
the knife and locked
accused up in the cell.
Under cross examination accused stated that Chele is his
father and the sheep which were in the veld belonged to his father
and on that day were herded by Makhala in a small valley far
away from home. He stated that P.W.2 and 3 were not telling the truth
when they said the sheep were grazing in the village that day herded
Asked why they should lie thus, he answered: "To
support each other." He denied that he ever shouted after
the latter was tending sheep in deceased's yard. To the
to him that "you said Makhala leave those sheep
there;, whoever says you should remove them I will
see to (him) ? They are not telling
the truth", he replied,
and suggested that P.W.2 and P.W.3 are just imaginative.
He said he was 50 paces away from the deceased when he went to meet
He denied that P.W.3 asked him not to go to the deceased. He
there had been an altercation between him and deceased
before the fight. He denied that P.W.2 saw him holding a knife. He
walked some 15 paces away from the scene of the
incident before falling out of view. To the suggestion that
evidence showed deceased
could not have walked more than two paces
away from the scene accused said that was not true. One of the crown
witnesses had in
any event said deceased had moved about seven paces
away from the scene.
Asked what he was going to report to the police, accused
said: "Because Lebamang had told me deceased had been injured."
Accused didn't think he had seriously injured deceased though he had
used a knife. Asked why he didn't think he had seriously injured
deceased while using a lethal weapon on him accused replied: "I
was running away."
Accused denied that deceased said to him after being
stabbed "come and see what you have done." He said he had
with P.W.2 and suggested that he was being
implicated by him because of "The horse of P.W.3 and P.W.2."
for an answer
to the question put: "P.W.3 never said the horse is
---? "It is P.W.3's," he replied. "Then
why should P.W.2 implicate
?" He knew deceased's feelings." Accused denied that
he handed the knife over to the police.
To the question: "At the place where deceased
tethered the horse, is it communal property or any particular
person's ---? It
is the chief's place", he replied.
Accused said the place where the horse was tethered was
the grave yard. In the same breath, he said the place
did not belong
to him. He was thus placed in a cleft stick to explain
why he bothered deceased about where deceased tethered the horse.
Asked why he did not run away from deceased while the
latter whipped him, he replied that deceased denied him that chance.
Confronted with the statement that when deceased's body
was searched only tobacco and a pipe were found and no knife,
there was. Asked what happened to it, he said the first
person who came to the scene took it.
It, is significant that nowhere was it suggested, let
alone put to Crown witnesses, that deceased had a knife with which he
to stab accused. This is a factor that arises late under
cross-examination. Accused truly said he did not tell his Counsel
it. It is to be wondered how he could fail to give to his
Counsel such ammunition of great importance to his defence if it is
Another matter which was raised was with regard to
P.W.2's hearing ability. Questions were rightly put to him to show
that his hearing
is not good. Learned Counsel referred in support of
' this point to P.W.2's failure to respond when being asked to come
to the witness
box next to the interpreter. It is true P.W.2 looked
rather sheepish after being ushered into the court room by Court
did not properly show him where he was to take his stand.
Naturally, he looked back to locate where the Orderly had disappeared
because the latter had been following him. Amidst all that P.W.2
was seeing in the well of the Court, he saw the accused
sitting in the dock with all the length and breadth of
the bench to spare, so he headed for the door to the dock intending
to go and
sit next to accused who was blanketed the same way as this
witness. It was at this stage that the interpreter raised his voice
attract this witness to the place where he was required to take
his stand. I would conclude that p.w.2's initial sheepishness was
to the fact that he was over-awed by the Court atmosphere and thus
failed to take his stand as easily as one who is used to the
I am quite satisfied with his hearing ability. Nowhere
during the proceedings did it require anybody including the
raise his voice above normal speaking tone in order to
enable P.W.2 to hear. He denied that his hearing is defective.
Facts adduced in evidence in fact point counter to any
suspicion that he does not hear properly. It was when he was busy
the kraal and obscured by the lie of the land from view that
he was attracted by the raised voice of accused addressing himself to
Makhala who was grazing sheep and goats in deceased's yard. It was in
the same circumstances that he heard his mother's voice reprimanding
accused for rushing at deceased who was asking Makhala to remove his
sheep from deceased's yard. It was in response to these voices
he left his kraal-building business and headed in the direction from
which the voices were coming.
He saw ... the accused stab the deceased with a knife.
He heard accused after doing so say I'll kill you and repeat his
deceased. He heard deceased ask the accused to come and see
what he had done. As for the stabbing incident P.W.2 is corroborated
by P.W.3 who because of the distance (she was further away from
the scene than P.W.2) only saw a fisted blow around the
chest area of the deceased.
Accused is one-eyed. He concedes that with his one eye
he is not able to see as well as when he used to have both his eyes
Obviously his field of vision is to some extent reduced
therefore;assuming that he is truthful when he says he did not see
and P.W.3 This could be ascribed to the fact that not in all
cases where a two-eyed person can perceive things accused would not.
But there was no suggestion that during the encounter with deceased
accused fixed his vision no where else except on his quarry.
case if he did so, that is all the more reason why he could not see
P.W.2 when he came rushing to the scene followed by the
rest of the
people who came afterwards. It is clear that accused cannot be
telling the truth when he says he did not see P.W.3 less
he says P.W.2 and P.W.3 were not in the area at all.
Both these witnesses gave their story convincingly and
without any attempt to either exaggerate or falsely to put accused in
light. They know of bad blood that existed between accused
and deceased. Nowhere in evidence did it seem they preferred one to
other. In fact P.W.3 stated categorically that she did not like
accused's habit of swearing at the deceased because deceased was
older than accused therefore was expected to respect him. To the
questions: "Accused in your view has always been wrong -----?
don't say he is wrong. I blame him for killing deceased who had done
no wrong. I put it to you that you are prejudiced against
accused because of being disrespectful to deceased-
? l don't mind the lack of respect. I am concerned
Accused would have me believe that when the incident
took place in the village at day time nobody was around, who could
anything except himself with one eye and deceased who can
no longer testify.
The incident which precipitated this episode derives
from deceased driving away accused's father's sheep and herdboy from
yard. This is in turn connected with deceased's horse
actually P.W.3's horse in the care of deceased being tethered in the
yard behind accused's parents' home.
I reject accused's story that on this fateful day
deceased had insulted accused by his mother's private parts. Had this
been so P.W.2
would have heard because immediately after he had heard
accused's shouting at the herdboy Makhala and P.W.'s verbal attempts
accused from making for deceased, P.W.2 impelled by
eagerness to see what was going to happen was at the spot within two
a duck's tail.
Even assuming for the moment that accused's tale is
worth consideration, and that the provocative words were uttered
relating to his
mother's private parts, one is left in a quandary to
visualise where exactly in the chain of events the narration given by
First it is improbable that such words could have been
uttered without P.W.2 hearing them and seeing the events that took
then or shortly afterwards. P.W.3 definitely should have
seen the events even if she were not to hear the exchange of words
or the insults even.
It is difficult to see where the provocative words fit
light of the fact that before the encounter with
deceased, accused while still a good distance away from the deceased
was asked by
P.W.3 to desist from rushing at the deceased. P.W.2
though not seeing anything at the time was quick to debouch into open
and see accused heading for the deceased with his hands behind
him. Meantime he was gaining on deceased and accused as there was
suggestion that accused and deceased were moving away from the point
of their encounter. P.W.2 saw accused deliver a stabbing
deceased. This is the signal point at the question of the encounter.
It is preceded by no acts such as whipping of the accused
deceased, falling of the whip during the struggle that ensued,
delivery of fist blows at accused by deceased, and drawing of the
spurious brown knife by deceased coupled with two attempts by
deceased to stab accused before the latter delivered . the fatal
blow at the deceased.
Indeed accused's story that P.W.3 did not see everything
as she claimed she did, does have some substance in that, after
deliver a fisted blow at deceased she went for a brief
moment into her house to put away the basins she had been carrying
when she saw deceased sitting down and P.W.2 supporting
him. While nothing of significance seems to have happened at the
encounter while P.W.3 was in the house, P.W.2 was near
enough to deceased and accused to have heard and seen what was taking
between those two. In other words any suggestion that the acts
alleged to have been committed by deceased on accused, could not have
been seen by P.W.3 while she was in the house is countervailed by the
fact that P.W.2 would have seen such and heard same because
the approach of accused to deceased was nearly complete and P.W.2 was
closing in on the scene all the time.
P.W.2 and P.W.3 corroborate each other on material
aspects of this case. As eye witnesses to the event their evidence is
and beyond reproach. They were not shaken under
cross-examination. Accused himself corroborates the Crown story as to
of the horse on the day in question notwithstanding
questions put by his Counsel to Crown witnesses that the horse was
or near accused's home.
Accused's story is a pitiful fabrication or at best an
afterthought pointing to the fact that he is telling a palpable
Hoffman in South African Law of Evidence 3rd Edition at
Page 461 says:
"In certain circumstances however the making of a
false statement may throw an unfavourable light upon a fact
which can become an item of corroborative
The Crown very properly concedes that the fact that the
accused is proved to have told a false statement either in evidence
of Court cannot per se constitute corroboration. Hoffman P.461
(supra). But in the light of the accused's inconsistent defence it
clear there is something which he wishes to hide.
It is trite law that " All such false incredible
contradictory statements if disproved or disbelieved are
not simply neautralized but become of substantive inculpatory
(R. vs MAKALO MOLETSANE & ORS 1974 - 75 LLR 316 at
Indeed as was properly submitted by Counsel for the
the accused does not have or bear the burden of
convincing the Court of the truth of any explanation he gives. It is
enough if there
is a reasonable possibility that it may be
But "The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course
See Miller vs
Minister of Pensions 1947(2) All E.R.372 at 373 by
Regarding accused's credibility it was submitted by the
Crown in argument that his evidence consists of inconsistencies and
Indeed this aspect of the matter clearly surfaced when
under cross-examination this Court heard for the first time that
attempted to stab accused with a knife. At this stage
accused strove to make belief that he remembered everything that and
occurred but was soon hoist on his own petard when he was
earlier confronted with
questions requiring him to account for his actions. He
his failure to give satisfactory account to confusion.
"alleged fight" he seems to have had an
opportunity to look around and see if anybody was at or near the
scene. Apart from
the fact that evidence has shown that there was no
such fight, there is further evidence to show that accused's was an
attack on the deceased. Accused's story has been shown to
be demonstrably false on this aspect of his evidence as compared with
of the Crown. All that remains clear is that he is absolutely
unable to account for his own explanations. For instance he said he
was searched by the police for a knife yet he himself handed over the
knife to the police. No question by his Counsel was put to
gainsay P.W.1's evidence in chief that accused had handed over the
knife to him. Hence P.W.1's version in this regard becomes
The Crown evidence remained intact and unshaken by any
examination. Accused's story cannot approach anything
near what is reasonably true.
It remains therefore for the Court to determine whether
the killing itself was intentional or not.
Williams J.A. in S vs. Mini 1963(3)S.A. 188 at Page 192,
it has been submitted to me in argument, neatly summed up the
"A person in law intends to kill if he deliberately
does an act which he in fact appreciates might result in the death of
and he acts recklessly as to whether such death results or
To determine the intent, it is also essential to have
regard to the nature of the weapon used, the nature of the injury
the degree of force applied in inflicting the injury and
the part of the body to which the blow was directed.
In the instant case the medical evidence revealed that
the wound lay in the sixth intercostal space in the mammary line. The
was explained as part of the body around the left hand side
of the chest. Shown exhibit "1" whose blade is about 4
long, the doctor said such a knife could have been used to
inflict the injury he had examined. His evidence further showed that
wound was at least 6 inches deep. The width was between 1% to 2%
inches. As to the degree of force used to inflict the injury, the
doctor said it was difficult to determine regard being had to the
softness of the tissue through which the weapon cut. Nonetheless,
stated that the degree of force applied was more than slight. He was
not asked how long after such an injury on the sac of the
heart as he
described had been inflicted death would ensue if the
patient had not been attended to.
The region of the body on which the injury was inflicted
leaves no doubt, in the words of Holmes J.A. in S vs Mini at P.140
" If a person forsees the possibility
of death resulting from his deed and nevertheless does
it, reckless whether death ensues or not, he has in law the intention
" It is not necessary that he
have a desire to cause death,"
Learned Judge concludes.
It was further argued by Mr. Thetsana for the
Crown basing himself on the authority of R vs. Jolly 1923 AD 176 at
187 that as Kotze J.A. said:
"The intention of an accused person is to be
ascertained from his acts and conduct. If a man without legal excuse
uses a deadly
weapon on another resulting in his death the inference
is that he intended to kill the deceased." See
See R v. Ngobo 1921 A.D. 92 also R vs. Butelezi 1925
In keeping with this submission is the presiding Judge's
succinct remark at 194 that
"the knife went through the chest wall and there
can be no doubt that any person pushing a knife through the ribs,
chest wall, must have had the intention of causing
serious injury to the person receiving the wound"
-25-and certainly one which might cause death
There is no doubt that the position and nature of the
wound inflicted reflect in this instance the relation between the
the person inflicting it and such a consequence of his act
as his victim's death. The wound was inflicted at deceased's
part of the body; directly at his heart. Nothing puts mans
rea in any cleaner perspective than this. If I may add, Mr.
Thetsane very properly pointed out that credibility of witnesses
is attacked not at the time of addresses but at cross-examination in
to the attempt by the defence to argue that Crown witnesses
had put their heads together to discuss the case against the accused.
Accused's story of self-defence is baseless. At no time was his life
put in danger by deceased's act.
In the result I reject accused's version of the events
end accept as correct the Crown's.
I also find that accused in inflicting the wound that
in deceased's death had the requisite intent or mend
rea. consequently accused, is found guilty of murder as charged.
My assessors agree.
M.L.LEHOHLA ACTING JUDGE.
For the Crown: Mr. Thetsane For the Respondent:
I have now to consider whether there are any
circumstances in extenuation of accused's crime, namely, his moral
As Lansdowne J.P. said in R vs Biyana (1938) E.D.L. 310
"an extenuating circumstance, is a fact associated
with the crime which serves in the minds of reasonable men to
albeit not, legally, the degree of the prisoner's
In R vs Fundakubu 1948(3)SA 810 AD at 818 Schreiner,
J.A. refers to the subjective side of the considerations to be taken
"It is at least clear that the subjective side is
of very great importance, and that no factor, not too remote or too
or indirectly related to the commission of the crime, which
bears upon the accused's moral blameworthiness in committing it can
ruled out from consideration."
In CRI/T/40/71 R vs Mashaile & Ors. (unreported)
Jacobs C.J. said
"Nothing that influenced accused's minds or
emotions and therefore their conduct can be ruled out even if
unreasonable for them
to be so influenced. Nor must the brutality and
callousness of the act be given too much weight and be allowed
automatically to exclude
In R vs Mkize 1953(2) SA 324 AD at 336 Steyn J.A. said
"I should be prepared to say that the subjective
test of the accused's state of mind is not only a factor to be
account, but is indeed a more important one to consider in
this regard than the objective test of the factual basis for that
I have taken into account that there was no
premeditation. I accept that accused is illiterate. It is important
in considering the
existence of extenuating circumstances to have
regard to the
social milieu of which accused is a product and a
member. He is unsophisticated and is a layman of peasant variety. The
he inflicted is only one, but if I may add from the
demonstration he made I was amazed by the deft manner and the
which he flicked and wielded the knife.
Accused had nurtured evident hatred against the
deceased. There was no love lost between the two. Accused used to
horse from where deceased had tethered it. There
is no physical boundary between this place and the purlieus of
household. Seeing deceased drive away the sheep,
goats and their herd from deceased's place which admittedly is not
with the fact that as the yard was under no crop but
just grass accused's hatred was fanned to an uncontrollable degree
deceased. His latent resentment could no longer be
confined to the usual hurling of abuse at deceased. He had already
verbal restraint against going to the deceased.
Apparently there was nobody to intervene physically before the fatal
however indicated his intention to kill, for he had
cunningly hidden the knife behind his back as he approached the
deceased in order
to perform his blackguardly act on him.
A swaggering young man imbued with such distortion of
the mind due to hatred and animosity discloses the factual basis for
he committed; and that diminishes morally the degree of his
guilt. I find therefore that there were extenuating circumstances but
for which accused should suffer the extreme penalty.
I have listened carefully to the submissions made on
your behalf regarding sentence. I have taken into account the fact
that you have
been in custody
-3-since January 1985, that is almost two years now.
But innocent life has been removed. P.W.3 is now without
a trusted and willing helper. The society has lost one of its members
no good reason. It is fitting therefore that society be, in terms
of the law,
allowed to get its own back as well as protected.
The minimum sentence I propose imposing is that of eight
M.L. LEHOHLA ACTING JUDGE
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