IN THE HIGH COURT OF LESOTHO In the
SEKHOBE LETSIE Appellant
vR E X Respondent
Delivered by the Hon. Sir Peter Allen on the 26th day
of August, 1987
The appellant, aged 29 years, was convicted on 26
November 1986 by a first class magistrate at Mokhotlong. He was
charged on two counts
1. of culpable homicide and '2. of assault with intent
to do grievous bodily harm.
He was convicted as charged on count 1, but, on count 2,
he was convicted of the lesser offence of common assault. On the
the appellant was sentenced to imprisonment for two
years and, on the second count, to a fine of M40 or imprisonment for
months in default (to run concurrently).
He commenced his prison sentence on 26 November 1986 and
he was released by the High Court on cash bail on 30 March 1987 after
four months of his sentence.
Mr. Pheko represented the appellant in both courts. He
has confined his address to this Court to the convictions
only and has relied entirely on the defence of
self-defence, since it was not disputed that the appellant stabbed
the 22 years old
deceased, Lesoetsa Moorosi, with a knife in the
chest. He died from loss of blood.
On 30 July 1985 in the evening there was a beer party at
the home of a woman called 'Matankiso Letsie (P.W.3) 2t Thabang. A
of young people attended and it appears that all those
concerned had drunk a considerable amount of beer by midnight. At
the beer was finished and the drinkers started to disperse.
The appellant attended the party with his friend Kabelo
Koma (P.W.1), who was treated throughout the trial as an accomplice.
deceased was with his friend Malefetsane Chere (P.W.2), who was
also the complainant in the second count in the charge sheet. Among
the witnesses were two other women, 'Mafutho Motleleng (PW 4) who
called herself the concubine of the appellant, and 'Masehloho Tsita
(P.W.5), the girlfriend of the deceased.
Due to the fact that they had all consumed a quantity of
beer it is hardly surprising that their later testimony was confusing
contradictory. The owner of the house 'Matankiso (P.W.3) was
aged 43 years and so quite a lot older than the other witnesses. It
appears that she had drunk very little and her account of events is
less confusing and possibly more reliable.
Apparently during the evening the appellant asked
'Matankiso to escort 'Mafutho (the appellant's girlfriend) to the
where he would shortly join her. 'Matankiso stayed
with 'Mafutho until the appellant arrived
home and then 'Matankiso went back to her own home. It
was about midnight by then and the deceased and others had just
her house and started drinking. The appellant came back to
her asking for a tin of beer. Others also arrived, including one
(who did not testify). She told them all that the beer was
finished so the deceased and his friend Malefetsane (P.W.2) started
leave. The deceased called to his girl-friend, 'Masehloho
(P.W.5),to go with him. As she tried to leave the house the appellant
and Kabelo (P.W.I) pulled her back into the house.
Although the appellant had his own girl friend,
'Mafutho, waiting for him at his home, he apparently decided that he
also wanted 'Masehloho
(the deceased's girl-friend) to go with him
too. She had already refused his earlier invitation. She objected to
being pulled back
by the appellant. There was a certain amount of
ineffective pushing and pulling by these drunken men and 'Matankiso
and Saleoa pushed
the deceased and Malefetsane outside and Saleoa
went out with them. The two women, 'Matankiso and
the doorway so as to keep the two
groups apart. Kabelo (P.W.1) tried to get out of the window but he
was pulled back into the house
by 'Matankiso at first. But he got
out at his second attempt and he proceeded to attack the deceased and
Malefetsane (P.W.2). They
all had a drunken fist fight wherein they
were mostly hitting out at each other and missing. Saleoa was also
involved trying to
Then the appellant pushed past 'Matankiso and joined in
the fight, apparently to assist his friend Kabelo. The appellant
and got up with a knife in his hand.
Kabelo tried to take it from him and was threatened by
the appellant. Kabelo released him and he attacked the deceased who
after being stabbed. Malefetsane (P.W.2) then attacked the
appellant in order to assist the deceased. The appellant tried to
Malefetsane but they were separated after the appellant had
struck Malefetsane on the jaw with his fist. The appellant then ran
away. There was no police . evidence of when the appellant was
arrested. Such evidence should always be given.
In his defence the appellant testified that it was
Kabelo (P.W.I) who came to his house that night to ask him to go back
home because two men were fighting with Kabelo's
brother. This was quite different from what the woman 'Matankiso
(P.W.3) had stated
earlier. There was no fight when he reached there
so the appellant sat down and drank beer. Then the quarrel over the
(P.W.5) occurred without the appellant participating.
He said that the deceased attacked Kabelo (P.W.1) with his fists and
both fought and were separated by 'Matankiso.
The appellant claimed that he was the one who prevented
Kabelo from getting out of the window. The appellant said . he tried
outside in order to separate the deceased and Malefetsane who
were fighting with Kabelo. At first 'Matankiso prevented him from
out but he soon got past her and then the deceased and
Malefetsane attacked him with their fists and he was struck on the
a stone and he fell over backwards. The deceased and
Malefetsane then both kicked him in the ribs while he lay on the
was when he pulled out his knife, opened it and threw
it at his
/two attackers ...
two attackers. He said it was his intention to defend
himself and he did not see whether or not he had stabbed anyone.
The medical report on the appellant (exh. 'C') shows..
that he had a bruise on the forehead and on the right upper arm. He
he and the others were all "considerably drunk"
at the time.
The trial magistrate considered the appellant's claim
that he acted in self defence and dismissed it on the grounds that
outside the house did not concern the appellant at first
and he only became involved because he pesisted in going outside when
tried to stop him from doing so. He thus took part in the
fight "willingly and unlawfully" and it resulted in the
of the deceased. This was caused by the assault and stabbing by
The magistrate believed the prosecution version of the
incident and it is clear from that, and indeed, even from the
testimony, that he joined in this drunken brawl quite
uninvited and unnecessarily. It was not his fight and if he had kept
would have been injured apart from a few minor cuts
and bruises. The appellant was the one who brought a dangerous
the fray. The question is was he justified in using it?
The general principles of the law on self defence are
clear enough. Briefly they are:
(a) that the accused had been unlawfully attacked and
had reasonable grounds for thinking that he was in danger of death or
that the means of self-defence which he usedwere
not excessive in relation to the danger; and
that the means he used were the only, or
leastdangerous, means whereby he could have avoidedthe
danger to himself.
Both counsel for the appellant and for the Crown spoke
of the test in such cases being the reactions of a reasonable man in
But this test is not
easy to apply because surely a reasonable man would not
get so drunk, that he became involved in such an incident. Further a
man would not go to a drinking place armed with a deadly
weapon. . It.might be that a person in the appellant's state of life
circumstances might act like that but that does not make him a
reasonable man, nor can he be compared with one.
At any rate the first principle is that the appellant
should be the one who is. attacked. In this case, as we have seen,
it was the
appellant who voluntarily joined in the fight.. He claimed
that he was then set upon and kicked by the deceased and Malefetsane.
But he had brought that retaliation upon himself by first attacking
The next point is whether he had reasonable grounds for
apprehending that he was in serious danger. It was clear that most
blows being struck missed their targets due to the combatants'
drunkenness. This most probably applied to the kicking also, if it
took place. No other witness spoke of anyone kicking the appellant,
and Kabelo (P.W.1.) when questioned about it replied that he
see it happen. There is nothing in the appellant's testimony to
explain why he decided to use his knife at all let alone
because he felt himself to be in any danger of serious
injury or death.
The second principle concerns the type of weapon used.
As I have indicated, nobody else was armed or, at least, nobody else
any weapon, so clearly there was no justification for the
appellant to do so. Since by his own claim he was only being
to drunken kicks it cannot be said that using a knife was
the only way in which he could avoid these kicks. All he had to do
to roll out of the way, get up and stagger off. He was in no real
danger and he did not claim in court that he was.
Consequently, I agree with the trial magistrate that the
appellant was the attacker and not the victim of an attack. He had no
in interfering and the deceased and others were justified in
reacting against him. All he had to do was to go away. Instead he
attacked again,this time with a knife. It was unnecessary to use
such a dangerous weapon and it was totally unjustified and
to kill anyone in those circumstances.
The appellant was clearly acted unlawfully and, in my
opinion, he was properly convicted of culpable homicide on count 1 of
On the second count of assault, Mr. Mdhluli for the
Crown, did not support the conviction because of doubts as to what
It seems to me that the complainant Malefetsane was
himself an agressor in the drunken fight, in which he chose to take
that he got what he deserved for being involved. I do not
think he was a victim and, in
/any case, ...
any case, it is not certain who hit him. In the
circumstances I would agree that the conviction on the second count
should not be
allowed to stand.
The appellant was sentenced to imprisonment for two
years for culpable homicide and Mr. Pheko, on his behalf, chose not
the appeal against sentence. In the circumstances I would
say that that was sensible for it was a very lenient sentence indeed.
This was a totally unnecessary killing of a young man by the
appellant. The fact that the appellant was drunk or had been drinking
alot is no excuse or defence at all. He got himself into that state
voluntarily and because he was not responsible enough to control
consumption of liquor. In my opinion he deserves a much longer
sentence of imprisonment but I shall not interfere with
it in the
Accordingly the appeal against conviction on the first
count of culpable homicide is dismissed and the sentence will stand.
against conviction on the second . count of assault is
allowed and the conviction is quashed and the sentence is set aside.
appellant's bail is now discharged and he must forthwith return
to prison and serve the remaining portion of his sentence.
Before I take leave of this appeal I should like to take
the opportunity to comment very briefly upon the lower court
Magistrates seem to be in the habit of writing judgments
in criminal cases only after an appeal has been filed. The judgment
written in the form of an answer to the grounds of appeal. I
think that this procedure is absolutely wrong. The judgment should,
indeed must, be written before the verdict in the case is pronounced.
/The appeal ...
The appeal will then be against the finding and verdict
in that judgment and not the other way round. It is unhelpful
and indeed wrong for a magistrate to make "submissions"
on the allegations contained in the appellant's memorandum of appeal.
Alot of these present lower court judgments contain afterthoughts and
decisions based on hindsight rather than being a true reflection
the magistrate's thoughts and findings at the time of the trial. As
such they are not proper judicial conclusions and they sometimes
mislead or confuse the appeal court.
The second point is that full details of every witness
and accused person should always be recorded in court. It is very
for an appeal court to picture the persons involved in a
case when only the name is given. The magistrate should record the
name (not just one name), age, sex, nationality and occupation
of each person. It helps also to know if a woman is married as well
as her occupation (which may be housewife, cultivator or whatever
else she works at). Whether a person is a juvenile or adult is
most important and helpful. It does not take long to record such
details and they can be very useful to both the trial court
P. A. P. J. ALLEN JUDGE
26 August, 1987
Mr. Pheko for the Appellant Mr. Mdhluli for the
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