CIV/T/24/88

IN THE HIGH COURT OF LESOTHO

In the matter between:-

REX

vs
MAKHABANE TLALI

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 26th day of May, 1989.

The accused is charged with the crime of murder, it
being alleged that upon or about the 26th August, 1987 and at or near
Majakaneng
in the district of Thaba-Tseka, the accused unlaw­fully
and intentionally killed Thabo Khemane (hereinafter called the
deceased).
The accused has pleaded not guilty to this charge.

The first witness called by the Prosecution is one
Masilonyane Sengoatsi. He testified that on the 26th August, 1987 he
went to Ntlatlapa's
bar. When he approached the bar he noticed that
the

/accused..

-2-

accused and the deceased were fighting; the former was
on top of the latter. The accused had a brownish knife in his hand.
He tried
to stop the fight but as soon as the deceased rose the
accused stabbed him with the knife on his left kidney region. At that
stage
the deceased already had a wound on his right hand but the
witness does not know how the deceased had sustained it. The deceased
ran away to the home of one Lakabane Sengoatsi (P.W.5). He (witness)
followed him and saw that the intestines were protruding from
the
would at the kidney region.

He tied him with a doek around the waist.

Masilonyane told the court that after stabbing the
deceased the accused said' " have you felt it, I have stabbed
you." He
then left. The deceased was later taken to the
hospital. The witness did not know how the fight started and the
cause for it.

Under cross-examination Masilonyane deposed that the
accused is a troublesome person who often fought with other people.
He did not
know that the deceased looked down upon other people. He
knew a lady by the name of Makaizer, but that lady was not present
when
the fight took place. Accused appeared to be sober on the day in
question.

The second witness called by the Prosecution was one
Ntlebo Jakobo who testified that on the morning of the day in
question he and
accused went to gather fire wood. While they were
gathering wood they saw the deceased at a distance of about fifty
yards from them.
He had a black stick and was raising it up but not
saying anything. The accused shouted at him and said, "You son
of Ntilane,
I want to cut you." The deceased asked what he

/had done

- 3 -

had done but received no response from the accused.
While they were gathering wood the accused went on saying he would
cut "that
child". Ntebo says that he warned him to desist
from doing such a thing. After gathering wood they carried it to the
village
using three donkeys. It was unloaded at accused's bar. After
that the accused invited him for a drink at Ntlatlapa's bar. When
they
arrived there the accused bought a tin of beer for him.

He sat down in the bar and drank the beer bought for him
by the accused. While he was drinking he heard an alarm that people
were
fighting outside. He rushed out of the house and found that the
accused was on top of the deceased and holding a brown knife in his
hand. He removed the accused and saw that the deceased had a wound on
the right hand and on the left side of his body. He explained
that
the wound on the left side of the body was inflicted by the accused
with a knife after he (witness) and P.W.1 had removed the
accused
from the top of the deceased. The deceased was taken to P.W.5's house
and later to the hospital. He says that as far as he
observed the
deceased did not respect the accused who was much older than him.

\

Under
cross-examination he denied that the accused had

a fresh wound above the left eye when he removed him
from the deceased. He did not see one 'Makaizer at Ntlatlapa's place
on that
day and that he would have seen her if she was present.

Trooper Koetle testified that on the 26th August, 1987
he found the deceased in Lakabane's house. He had a wound on the left
kidney
region from which the intestines protruded. The doek was

/tied around

- 4 -

tied around the waist over the wound and it appeared to
be clean. He carried the deceased to the Paray Hospital in a vehicle.
On the
same day the accused gave him the brown knife before Court
(Exhibit1). On the 29th August, 1987 he arrested the accused and
charged
him with assault with intent to cause grievous bodily harm.
On the 3rd September, 1987 he was informed of the death of the
deceased
and formally charged the accused with murder. He denied that
on the 26th August, 1987 the accused had any wound above his left
eye.
He says that he already had an old scar above the left eye.

The evidence of Lakabane Sengoatsi was to the effect
that on the 26th August, 1987 he was at his house when he saw the
accused and
the deceased near Ntlatlapa's place. The accused was
saying, "Let me stab you again and finish you off. You have felt
it."
As he was about fifty yards from them he did not see
whether the accused had a wound on his face, but he appeared to be
angry.

Dr. Waldis testified that on the 26th August, 1987 the
deceased was admitted at Paray Hospital. He had stabwounds on the
left dorsal
side of the flank on the right forearm and on the right
thigh... The wound on the left flank went deep into the body and
broke one
rib and punctured the large intestines at two places. On
the same evening he performed an operation and found that there were
stools
in the abdominal cavity and the two wounds oh large
intestines. He rinsed out the stools and sutured the two wounds and
the stabwound.
The wound was about two to three centi­metres long
and appeared to have been caused with a sharp object such as Exhibit
1. During
the operation the deceased was

/vomiting.......

- 5 -

vomiting but after the operation he was fine for about
two or three days, then he developed pneumonia which was treated with
drugs
according to approved medical standards. Later the patient
developed delirium tremens.

On the 2nd September, 1987 the wound on the left flank
opened and the intestines could be seen protruding. He decided that
the patient
must undergo a second operation in order to clear the
abdominal cavity. In about ten to fifteen minutes the patient died.
On examination
the doctor found that the small intestines were
attached to each other and then to the first operational wound. There
was yellowish
fluid and pus coming out of the abdomen. The wounds on
the large intestines were still closed and had started healing. It
was his
opinion that the cause of death was the original stabwound
and the others were the consequences. It was caused by the operation
which
he was bound to do under the circumstances.

Under cross-examination Dr. Waldis said he qualified in
1980 and obtained his general practitioner's certificate in 1986.
Before this
operation he had performed many others which were even
more complicated that the present. He admitted that the second
operation was
risky because of the poor condition in which the
deceased was but with an open stomach he had no alternative but to
operate. He formed
the opinion that it was infection that opened the
wound because faeces are very infectious. He developed the infection
despite the
fact that he was put on antibiotics treatment. It was
also impossible to be thorough to cleans stools in the abdominal
cavity,

/The accused

- 6 -

The accused gave evidence in his defence and stated that
on the day in question he was drinking Sesotho beer in the house of
one Ntlatlapa.
He had already drunk three babaton tins of beer before
the events which led to his fight with the deceased unfolded. He and
deceased
were sitting' on the same bench. He never talked to the
deceased on that day but they were on talking terms. While they were
sitting
there he gave a M10-00 note to one 'Makaizer Pereko and asked
her to go to the cafe and to buy snuff for him. She took the money
and went out, the deceased followed her. She later came and told him
that the deceased had taken the money. After that report the
deceased
again went out of the house. He (the witness) followed him intending
to ask him why he had taken his money. As soon as he
got out the
deceased struck him with a stick above the left eye; he fell down;
the wound was bleeding.

When he rose he caught hold of the deceased and they
wrestled with each other till he (accused) managed to throw him on
the ground.
He sat on top of him and took out his knife from his
pocket. He unclasped it and then stabbed the deceased. He does not
remember
how many times and which parts of his body he stabbed with
the knife.. The deceased had struck him even before he spoke to him.
He
denied that he stabbed the deceased after P.W.I and P.W.2 had
removed him from the deceased. He denied that he ever uttered the
words
referred to by the Crown witnesses. He says that he stabbed the
deceased because he had struck him with a stick.

The first issue to be decided by the Court is whether
the accused had a fresh wound above his left eye at the relevant time
i.e. immediately
after the stabbing of the deceased. All the Crown

/witnesses

- 7 -

witnesses deny that he had such a wound. Trooper Koetle
went further to see that when he arrested the accused he saw that old
scar
above the left eye. He apparently did not do anything about

it because it was an old scar which had nothing to do
with the

present case. The rest of the Crown witnesses are fellow
villagers

of the accused and it was common cause that he got along
well with them. There was no reason why they could all of a sudden
turn against
him and fabricate evidence against him. They impressed
me as being honest and truthful witnesses whose evidence has a ring
of truth.
They never attempted to say they saw when the fight started
and to say they know its cause.

I reject the story of the accused that the deceased
struck him with a stick as soon as he came out. He did not have any
wound at all
and must have surprised the deceased. It is very clear
from the evidence of one Crown witness, P.W.2 that the accused
intended to
cause grievous injury to the deceased. Earlier that
morning the accused had threatened to cut the deceased with a knife.
When asked
by P.W.2 why he intended to cut the deceased, the accused
did not answer and kept on opening and closing his knife. In other
words,
the accused premeditated the stabbing or cutting of the
deceased with a knife.

The Prosecution witnesses have denied that the lady by
the name of 'Makalzer was present at the home of Ntlatlapa on the day
in question.
I have believed them on this point and I reject the
accused's version that she was there and that he gave her M10-00 .
The accused
planned the assault on the morning of the 26th August,
1987, and had planned the attack in such a way that no people would

/see how

- 8 -

see how the fight started. If it were true that the
deceased had taken his money why did he not tell the people who
intervened in
the fight that the deceased had just taken his money?
The people would have there and then searched the decased and
interviewed 'Makaizer.
It is also significant that after the stabbing
the accused uttered words which indicated that he was boasting of
having stabbed him.
He never uttered a single word to indicate that
the deceased had taken his money. If it were true that deceased had
taken his money,
he would have mentioned that fact while he was in
frenzy. He did not do so because such a thing never happened.

After the deceased had been assaulted he survived for at
least seven days but during that time the accused never revealed or
complained
to anybody, not even his own chief, that the deceased was
stabbed because he had taken his money and attacked him (accused)
when
he tried to asked him about the money.

Mr. Peete, counsel for the defence, submitted
that the accused acted in self-defence. I have already rejected his
story that as soon as he
came out of the house the deceased struck
him with a stick above the left eye. Even if his story was accepted
as the truth the defence
of self-defence would still not be available
to him. It seems to me that he exceeded the bounds of self-defence.
He says that after
he was struck with a stick he wrestled with the
deceased and managed to throw him to the ground and sat on top of
him. In other words
he had overpowered the deceased and there was no
longer any imminent danger to his life. The deceased was no longer in
a position
to harm him. Instead of calling for help or just

/pressing the

- 9 -

pressing the deceased to the ground until other people
came, he took out a knife from his pocket and stabbed the deceased .
three
stabwounds on various parts of the body including the wound on
the left flank which caused the death of the deceased. I come to the
conclusion that even if his story was believed he would still be
guilty of murder because he grossly exceeded the limits of
self-defence.

Mr. Peete further submitted that the second
operation carried out by Dr. Waldis was a novus actus interveniens
and was the cause of death of the deceased. He submitted that the
operation may have been prudent but was not necessary. He also hinted
that Dr. Waldis did not have enough experience to perform such an
operation. In R. v. Motomane, 1961 (4) S.A. 569 (W.L.D.) the headnote
reads as follows:

"Where, on a charge of murder, the Crown proves a
stab wound, inflicted by the accused with haemorrhage as a result,
and death
as a result of haemorrhage, the burden of proof is upon the
accused to show on the probabilities that there was an interruption
of
the causal chain.

The accused on a charge of murder had stabbed a woman
with a knife. He had injured a vein but the bleeding has stopped, a
clot had
formed, and the woman would probably have recovered in the
ordinary course. But the course which would probably have led to a
natural
recovery had been interrupted. A medical practitioner had
decided to operate, a prudent deci­sion but not a necessary one.
The
clot had been disturbed and the woman had bled to death.

Held, that the causal chain had been broken and that the
Crown had failed to prove that the accused was responsible for the
death
of the deceased.

Held, further that the accused should be convicted of.
assault with intent to do grievous bodily harm".

/In an earlier.

-10-

In an earlier case of R. v. Du Plessis, 1960 (2)
S.A. 642 (T.P.D.) it was held that where a wound is inflicted and

the
person is placed in the care of a medical practitioner and the person
dies, then the person who inflicted the wound is responsible
for such
person's death unless the medical practi­tioner by his negligent
or intentional act introduced a nova causa which is
actually the
cause of the death. The causal connection between the infliction of
the wound and death which resulted is broken thereby.
Where there is
no nova causa introduced from outside by a third person, and the
death results as a natural consequence of the infliction
of the
wound, having regard to the bodily condition of the injured person,
then the person who inflicted the wound was the cause
of the death.
The fact that the deceased, on account of his age, constitution or
habits, was more vulnerable or prone to the result
which followed,
does not affect the causal connection."

In the present case Dr. Waldis testified that the second
operation was necessary and that he had no choice because the
operational
wound had opened and he could see the intestines through
it. It was clear that the cause of the opening of the wound was
infection
caused by faeces which had remained in the abdominal cavity
when the rinsing out was done. There is no evidence by the defence
that
the doctor and his staff were negligent in any way. The onus was
on the defence to prove on a balance of probabilities that there
was
novus actus which interrupted the chain of events from the
stabwound to the death of the deceased. The doctor testified that the
faeces are very
infectious and yet it is not always possible to clean
the

/abdominal cavity

- 11 -

abdominal cavity so thoroughly that subsequent infection
can be

ruled out completely. He pointed out that after the
operation

he put the deceased on antibiotics. I am of the opinion
that

the doctor in the present case was not negligent and
that there

was no interruption in the causal chain. The wound
inflicted by

the accused was the cause of death.

It was submitted on behalf of the accused that at the
time he committed the actus reus he was drunk. The Crown
witnesses who were in the company of the accused just before the
fight testified that he appeared not to be
drunk. It is not the
defence of the accused that he was so drunk that he did not know that
such act was wrong or that he did not
know what he was doing (see
Criminal Liability of Intoxicated Person Proclamation No.60 of 1938,
section 2).

I have formed the opinion that the accused had the
necessary intention to kill in that when he stabbed the deceased on
the left flank
he foresaw that his act might cause deceased's death.

In the result I find the accused guilty of murder. My
assessor agrees.

J.L. KHEOLA
JUDGE

26th May, 1989.

- 12 -

EXTENUATING CIRCUMSTANCES

There is evidence that just before the fight the accused
had been drinking Sesotho beer and that he had already finished three
"babaton"
tins of beer. I am convinced that although the
accused was not actually drunk, the beer he had drunk had affected
his mind.

It is common cause that the deceased used to look down
upon the accused despite the fact that he was much younger than the
accused.
This factor must have been working on the mind of the
accused for a long time. Although that kind of behaviour of the
deceased towards
the accused did not amount to provocation it is a
factor which cannot be ignored when considering extenua­ting
circumstances.

Taking into account the cumulative effect of liquor on
the mind of the accused and the. fact that the deceased looked down
upon the
accused, I have come to the conclusion that there are
extenuating circumstances and that the accused is guilty of murder
with extenuating
circumstances.

SENTENCE:

Eight (8) years' imprisonment. My assessor agrees.

J.L. KHEOLA
JUDGE

26th May, 1989.

For Crown - Miss Moruthoane
For Defence - Mr.
Peete.