IN THE HIGH COURT OF LESOTHO In the matter
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
9th day of June. 1989.
The accused was charged with the murder of Tlhabeli
Matebane who received injuries at Central Hotel in Qacha's Nek on the
of 11th September 1987. He later succumbed to those injuries
some few days afterwards. He had been transferred from Qacha's Nek
Government Hospital to Queen Elizabeth 11 Hospital by plane on
Accused pleaded not guilty to the charge.
The evidence of the following witnesses at preparatory
examination was admitted and made part of the proceedings in the
P.W.8 Copral Matabene P.W.10 D/Tpr. Lepheane P.W.12
Although the defence had stated that it admitted the
evidence of P.W.2 Dr. C.T.Moorosi, the crown refused to accept the
Consequently this witness gave viva voce evidence
and was in due course cross-examined,
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In an endeavour to discharge the onus placed on it the
crown led the evidence of two eye-witnesses, namely P.W.5 Motlatsi
P.W.7 No. 4771 Detective Policewoman Phafoli.
P.W.5 is the proprietor of a hotel called Central Hotel
situated in Qacha's Nek. A short distance away from the main hotel
is also a drinking place called the White House also owned by
P.W.5. The deceased was P.W.5's employee. Beer and refreshments are
sold at the bar in this hotel as well as at this outbuilding
known as the White House.
There is a big discotheque hall measuring about seven
paces in breadth and fifteen paces in length at the Central Hotel.
is lit with four electric lights. In most days music
lovers, dancers and general members of the public including members
police force attend the disco on payment of a fee per person.
On such days the management of the hotel usually
provides security from the police force in order to ensure that
takings at the door
are not spirited away by rowdy and unruly
elements who go there under the guise of coming to enjoy amenities
offered by the business.
However there are days once a week when the disco
facilities are offered free of charge. On such days great crowds of
drawn to the disco, no doubt fuelled by hopes of making
the most of the free enjoyment of benefits offered there. Most
it is during evenings of such days as was the case on the
evening that deceased met his death, that the management never
to call in aid members of the police force to take specific
charge of the security against elements who might endanger the safety
and lives of disco-goers.
It was when P.W.5 was at his hotel in an empty
discotheque hall at about 5 p.m. or 6 p.m. that he met with the
accused who had an
open knife in his hand.
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The knife, believed by this witness to be a clasp knife
was in fact a flick-knife or switch knife which is the type whose
out of the handle at the pressing of a button according
to D.W.2 Tsautse Chaka's evidence. P.W.5 had only seen its blade and
his estimation it could measure up to five inches in length.
P.W.5 further testified that even though he was seeing
accused for the first time, he appeared to be in a fighting mood for
were knitted and his utterances were not peaceful in that
he was saying
"I have come to cure the lunatics in this place
P.W.6 Tumane Selimo repeatedly stated that at the stage
where he himself had occasion to come into contact with the accused
was uttering the words alluded to by P.W.5 and that
accused was further saying he had observed that "these boys of
are full of s..."
Apart from a boy Pallo whom P.W.5 had met on his
entrance at the door there were only accused and P.W.5 in the hall.
asked the accused why he was going about with an open
knife. Accused's reply was that he had come to cure the lunatics at
Thereupon P.W.5 referred a policeman Makhetha to the
accused who was still armed with an open knife. P.W.5 then let the
and resumed his usual day to day routine of selling liquor
in the bar. Accused and Makhetha seemed to be talking for a good
of an hour while seated somewhere at a corner in the same bar.
At the end of or during the conversation accused was no
longer holding the knife. But P.W.5 could not hear the conversation
to the distance hence was unable to say if it was interspersed
with violent or
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After some time P.W.5 left the bar for the disco hall
where at about 7 or 8 p.m. music was playing and hotel frequenters
He stood at the door on a raised place towering some one
half feet above the dancing floor. From this elevated position P.W.5
a good view of the interior of the dancing floor.
There and then P.W.5 saw a knife drop from the accused
who was next to the deceased.. Deceased was standing leaning against
with his arms folded. He was carrying nothing in his hands.
Then Tsautse D.W.2 picked up the knife and handed it to
the accused. Two or so minutes afterwards P.W.5 saw the accused
with his knife what appeared to be sweeping movements
around the deceased's face. P.W.5 was about seven paces away from the
this happened. The lighting was good and came from four
The deceased ran away towards the opposite wall
described as the lower side of the hall. It was while deceased was
running away thus
that P.W.5 saw the accused stab him at the back
with a knife.
Prior to the stabbing there had been no appearance to
P.W.5's observation of an altercation or a quarrel between the
accused and the
P.W.5 said he could have heard or even observed if there
were any such. Accused stabbed the deceased once more during the
flight. Consequently the deceased fell on a girl called
Nthabiseng who was sitting next to the wall. Accused stabbed him
P.W.5 went to his office intending to fetch a stick with
which to fight the accused.
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On his way back he met with the deceased whose white
dust coat was drenched with blood at the back.
P.W.5 took him to hospital in a vehicle. The deceased
seemed to have been affected by the injuries because even though he
on his own he did not walk steadily.
The accused had disappeared from the scene at the time.
At least three witnesses who knew deceased well have told me that he
P.W.5 testified that accused did not appear drunk.
P.W.7 corroborated P.W.5 on all material respects. She
said she saw accused whom she was seeing for the first time that
the deceased three times with a knife.
The accused after chasing the deceased across the dance
hall,full of people though not congested, disappeared through the
P.W.7's attempts at tracing and arresting him were thus
She had seen someone push the accused outside the door
on the lower side of the hall and appear to cause the accused to make
It is on the basis of the version of these two witnesses
that Mr. Thetsane submitted that despite suggestions by the
defence that these two witnesses didn't see anything they were
adamant that they saw.
Indeed the defence witness D.W.2 supports P.W.5 that the
knife fell from the accused prior to the incident and was picked up
to the accused by D.W.2 himself, Tsautse.
The crown sought to establish that there was a direct
causal link between the inflicting of the injuries on the deceased
and his subsequent
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In this regard the crown relying on its witnesses
pointed out that undisputed evidence showed that deceased was
admitted at the hospital
at Qacha's Nek on the same night he had
sustained the injuries i.e, 11-9-87.
The doctor attended to him the following day.
Indeed the tenor of P.W.11 Dr. Nolting's evidence is
that when he treated the deceased he had already been sutured by a
on his experience the doctor attended the deceased to
determine if the blood pressure was normal and it was. Thus the
the patient was stable. But the patient complained of
continuous pains whereupon P.W.11 gave him some pain killers. The
satisfied that the deceased was ready to be discharged on
However at the time of discharging him he observed that
deceased's condition was deteriorating whereupon he decided to
to Queen Elizabeth 11 Hospital in Maseru because
available facilities at Qacha's Nek were either limited or plainly
out of commission
at the time.
Mr. Thetsane conceded that the Crown did not lead
evidence to show what type of treatment deceased whilst still alive
received on arrival at Queen
Elizabeth 11 Hospital in Maseru. But in
an endeavour to establish the causal link between the stab wounds and
deceased's death he
relied on the evidence of P.W.2 Dr. Moorosi who
performed the post mortem examination on the body of the deceased.
P.W.2's evidence was that he observed that one of the
stab wounds penetrated the pleural area housing the lungs. No lung
though the instrument used to effect the injury had
penetrated the body cavity.
The body had three wounds at the back. Only one had
penetrated the cavity.
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Asked if (under cross examination) mere penetration
could result in death Dr. Moorosi promptly took exception to the
of the word "mere" in framing the question.
He stated that penetration cannot be described as mere because
when the skin is broken germs are deposited on the raw
flesh and if an instrument used is not sterile then an accumulation
germs may cause infection which may lead to death.
P.W.2 observed hematoma around the left kidney and
adrenal gland. He also observed extensive bleeding under parietal'
the 8th to 10th ribs along the wound as shown in the
sketch. This wound is on the right posterior aspect of the trunk.
observed diffuse hematoma on lower part of the
posterior aspect of the lower lobe of the right lung accompanied by
on pleura. He also observed presence of severe
congestion on both lungs.
The peritoneal cavity contained roughly 500 ml of sero
The effect of congestion in the lungs was said to have
led to failure of the heart to pump blood resulting in the failure of
organ to maintain the circulatory system in a condition
that could sustain life.
It was therefore P.W.2's opinion based on his
examination of the body of the deceased that death resulted from the
effect of the wounds
referred to above.
Asked if it is possible for a person to die after a long
time following the factors he outlined in his evidence P.W.2 said it
for a person to die after a few minutes, hours or even
days. He stated that it is not unusual for a person to live for a
without dying because suddenness of death depends on how
much blood collected in the body cavity.
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The crown accordingly submitted that accused is to be
found guilty of murder for had he not inflicted the injuries deceased
not have died. Having made this submission Mr. Thetsane
for the crown was quick to submit further that the onus rests on the
Crown to exclude actus novus interveniens. See R vs.
Sekati 1980 (1) LL.R. at 214.
At page 216 of Sekati above under 3 is said
regarding causation :
"Where x assaults y and causes him injuries(and)
then y is admitted at a hospital wherehe eventually dies, x on a
charge of murdercontends that the death of the deceased hadnot
been caused by the injuries he had inflictedupon y but by the
medical treatment which yreceived after his admission at the
hospital.There was medical evidence as to the treatmenty
received at the hospital; there wasevidence, also, as to y's
cause of death.It was held that x who inflicts injuries isnot
entitled to expect that y will receivemedical attention or such
attention as isavailable, he is not entitled to
escaperesponsibility for y's death if thatattention is
unsuccessful in saving y's life.However, there must be evidence
to excludethe:possibility of incompetence or negligenceor
dereliction of duty of professional medicalmen' "
per Cotran J. as he then was in Rex vs Tlali &
Others CRI/T/27/74 (unreported) at 17.
The crown sought to persuade the court to distinguish
the instant case from that of R vs Ntloana 1967-70 LL.R. 48 at
58 where Evans J. observed that
"...... furthermore, in the absence of
medical testimony there was nothing to satisfy the court
that the hat or 'doek' snatched from the head of a woman by Teboho
was not itself a source of the infection which could have been
the actual cause of death although probably most unlikely. Then
is the question again of a further actus interveniens as
it appears that an operation was performed on the deceased at the
Maseru Hospital presumably to remove the bullet; but no medical
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called by the crown, which was most essential in order
to indicate whether, in fact, a nova causa did arise and was
the actual cause of death; or whether the actus interveniens
had no connection with the subsequent death of the deceased."
Thus Mr. Thetsane submitted that unlike inNtloana where a layman tried to staunch the flow of blood in
the instant case a nursing sister applying her techniques obtained
sutured the stab wounds. Thus it cannot be said she
did not use sterile instruments in suturing the wounds.
The crown relying on P.W.11's evidence that it is not
unusual for a patient to be treated by a nurse, submitted that in
the patient was treated by a more qualified person namely a
nursing sister who, however, did not testify.
The crown reposed a lot of reliance on the fact that
after treatment the patient's condition satisfied P.W.11 that it had
Further that P.W.2 indicated that the type of
stitching used to suture the wounds, together with instruments i.e.
forceps used ruled
out possibility of infection resulting therefrom
because they were sterilised. On the other hand accused's knife was
not, and could
not have been, sterilised.
The crown further indicated that the submission by the
defence that P.W.11 should have entertained fear that infection might
the wounds was gound-less in the light of the fact that under
cross examination there was not even the slightest suggestion that
death might have resulted from negligence of those who treated the
In R vs. Du Plessis 1960(2) SA. 642 it was held
"Where a wound is inflicted and the person is
placed in the cere of a medical practitioner and the person dies,
then the person
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inflicted the wound is responsible for such person's
death unless the medical practitioner by his negligent or intentional
a nova pause which is actually the cause of
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 the outside by a third person and the death
results as a natural consequence of the infliction of the
wound then the person who inflicted
the wound was the cause of death "
A different position is illustrated by R vs
Motomene 1961(4) SA 569 (WLD). In giving a
summary of the facts in this case Evans J. in Ntloana at 57
"The accused on a charge of murder, stabbed a woman
with a knife. He had injured a vein but the bleeding had stopped, a
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.
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
death of the deceased.
"Held, further that the accused should be convicted
of assault with intent to do grievous bodily harm."
Even without paying much attention to the speculative
evidence by P.W.2 about the effect of infection that accused's knife
had, and his exclusion of germs that might have been
introduced into the wounds by the nursing sister who sutured them, I
am of the
view that his testimony that a 500 ml mixture of blood end
water fluid could with the passage of time cause heart failure which
result in death, is satisfactory. P.W.2 said the suddenness of
death would depend on how much blood had collected in the body
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It would seem therefore that the suggested and
conjectural fear that the nursing sister's intervention might have
caused the death while on the one hand possible is
not in the least probable on the other hand. Hence, but for the
by the accused, the deceased would not have died.
Moreover in R vs Adams 1957 CR. L.R. 365 in his
charge to the jury Devlin J, as he then was said:
"Cause means nothing philosophical or technical or
scientific. It means what you twelve men and women sitting as a jury
jury box would regard in a common sense way as the cause."
Adopting the same attitude Cotran C.J. in Thabo
Tsomela vs Rex 1974-75 LL.R at 99 said
"I am unable to subscribe to the view that a court
of law is precluded from coming to a conclusion about the cause of
reason only that no medical evidence was available, or if
available, was not satisfactory or not (scientifically) conclusive."
Referring to Ntloana above this Court in
CRI/REV/1/36 Rex vs Mabilikoe & 5 Others (unreported) at 8
"Evans J was basing his doubts on
the role played by a lady who tried to extract a bullet
from deceased's wound by inserting a finger into it. In other wordsnovus actus interveniens was shown to be a positive act
based on a demonstrable action by a participant whose attempt at
bringing relief to the deceased could
not be excluded as a new thing
that caused the death of the deceased independently of the accused's
initial act. In other words
if sought to be relied on novus actus
interveniens must be shown to have been an effective cause not
imagined or invented."
At page 9 of the above case this Court observed that
" It is indeed vain to speculate about
causation to such an extent as to grab at any fanciful
one in the process."
Rooi vs Regina P.H. weekly Legal Service,
July-December 1952(2) H. 119 p. 242 heard by the
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Transvaal Provincial Division on Appeal laid down that:
"A person who assaulted another has no right to
expect that the latter would receive medical treatment to repair the
so inflicted. If death was caused by the wound, it was no
defence to say that if a doctor had intervened, the natural result of
the assault would have been averted ....."
The crown stressed that the eye witness P.W.5
emphatically showed that no hostile altercation between deceased and
accused took place
prior to the stabbing. While deceased was unarmed
accused had a knife whose blade was exposed.
P.M.5 saw accused stab deceased with this knife even as
deceased was fleeing to avoid the danger posed by the accused.
P.W.7 didn't see where the accused and the deceased
were standing. She only saw accused chasing after the
deceased and stabbing him during and after the flight.
Mr. Thetsane accordingly submitted that these
witnesses' testimony has not been shaken or shattered.
He pointed out that the defence strained to indicate
that these witnesses were either absent or did not see what occurred.
this attitude by the defence and submitted that the
only conclusion to be reached concerning why the defence is anxious
to say these
witnesses did not see is that they should be removed
from the scene and discredited thus leaving accused's sole testimony
to be tested
Referring to the attempt by the defence to suggest that
accused had reported to P.W.5 that some people had been taunting him
him with being an alien and a Xhosa at the White House,
the Crown submitted that P.W.5 on the contrary said when he first saw
accused the latter was brandishing and wielding a knife saying he
had come to Cache's Nek to cure the
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lunacy among young men there who were full of S ....
Indeed it was my view that P.W.5 was a cool witness
who suffered from no stage fright while giving evidence and being
He narrated his story calmly; and could not be
branded as deliberately incriminating the accused falsely.
Despite the searching cross-examination concerning why
he did not pursue the matter which seemed to unsettle him when
the knife in the manner he described, P.W.5 stated that he
drew the police attention to it and they asked the accused to stop
trouble. P.W.5 was very candid. He readily admitted that
his major concern regarding the invitation of police at his premises
to ensure not so much the security of the disco attendants as to
ensure that the inflow of the takings beneficial to him was not
Indeed even though P.W.5 did not see the policeman
who was in private produce his identity card to the accused the fact
this policeman had seen that the accused was unruly and had an
open knife with him absolved P.W.5 from further care and worry, for
it was the policeman's duty to disarm the accused and cool him down.
P.W.5 had done his part by handing the accused over to the
The defence argued that the crown had called in evidence
a police woman who must have been told about the events but did not
Mr. Thetsane accordingly submitted that the crown is
not so inexperienced in its conduct of the case as not to know
that it requires first
hand witnesses to testify. I agree with this
submission and would go further to say there does not seem to be any
basis for the
view that the crown erred in calling P.W.7 to testify.
There does seem to be substance in the crown's
observation that the defence seeks to remove crown
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witnesses from the scene so that what remains should be
the accused's version, which, if it is successful, should be regarded
I have not come across any suggestion that P.W.7 for any
specific reason was implicating the accused falsely. She testified
she saw accused for the first time that day. Accordingly she
bore him no previous grudge. Her evidence is thus free from any
that on account of some previous differences she had with the
accused, today finding him in circumstances of agony and travail, it
is justifiable to suggest that she is having her own back. In short
her evidence is without taint of vengeance.
In his defence the accused said that while at the white
house he and his company consisting of Ntaote otherwise known as
one Tsautse D.W.2 were attacked by some four boys armed
with panga knives.
The source of the attack according to the accused was
that these boys found him sitting next to a girl and asked her why
she was sitting
next to a person who was alien in that area. She
replied that she knew the accused. But the boys said
"This man is a Xhosa. He has no right to bring the
Transkeian cleverness here. This is not Transkei but Lesotho".
One of the boys lifted the accused by the shoulder, The
accused fearing that his cloths might get torn rose
to his feet. The accused brought to Ntaote's attention
his fear that these boys might injure him. However Ntaote intervened
the accused together with his two companions i.e. Tsautse and
Ntaote left for the Hotel. Along the way they met three people one
whom was the deceased who pointed at the accused and said "This
is the boy who is full of s... and has been causing trouble."
Needless to say D.W.2 Tsautse denies all this
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version that was portrayed by the accused. Crown
witnesses who testified i.e. P.W.6 denied that deceased had in any
I have no hesitation in rejecting the accused's tale as
a mere figment of his imagination.
Accused went further in his evidence to say that
deceased's company tried to stop D.W.2. But the accused and his
company left deceased
there and his companions. When the accused
reached the hotel he went into the bar getting in there through the
door leading from
He met P.W.5 the hotel proprietor otherwise known to the
accused as Montgomery and reported to him that he was being fought.
There is not much use really in pursuing this aspect of
the accused's version about the report and the fight because it is
not only by P.W.5 but by accused's own witness D.W.2 who
denied that anybody in deceased's company tried to stop him.
The accused said P.W.5 did nothing about the report he
had made to him. He contented himself with saying nobody would do
to the accused. However P.W.5 acted on the information that
accused gave to him about a dark-complexioned boy whom he pointed out
as being one of those who had been pestering him at the White House.
This he did by taking the boy to
the other side.
Even at this stage it is impossible to find what story
accused wishes to be believed between the two versions that he gave
that P.W.5 did not do anything and that P.W.5 did something
following accused's complaint to him. Furthermore P.W.5 was never
with the version under cross examination that he heeded
accused's complaint by even taking the dark complexioned boy to the
side after accused had pointed him out to P.W.5.
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The accused further told the court that he went to the
disco hall and joined in the dancing and beer-drinking. It was when
Tsautse and others for whose drinks he had been paying
were sitting, that accused saw six men coming to him at the corner
had been sitting. These six men consisted of the deceased,
the dark complexioned boy and four others. One of these six men
and shook cigarette ashes into the accused's beer. Two of
these men were armed with Panga knives while deceased and the rest
armed with knives.
The accused's version is very difficult to follow.
Despite saying in his evidence in-chief that deceased was the man who
him end said he was full of S... and causing trouble he
conceded to the suggestion under cross examination that he gave an
that it was P.W.6 Tumane Selimo who was responsible for
The accused conceded that it was never put to P.W.5 that
he called P.W.6 following the fact that the accused had complained to
about him. This serves merely to show that the accused is so
thoroughly entangled in a web of his own making that he maintains any
answer which he instantly invents would do despite its inconsistency
with his own tale.
The accused said he was being tormented by boys
with being a Xhosa. I may just make an observation
though that he seemed to be more at home with a Xhosa speaking
a Sesotho speaking one who was replaced when it
became obvious that he could not understand proceedings easily when
Sesotho. Of course this is not to say he does not
understand Sesotho. It does not mean that the court accepts that
him and called him a Xhosa from Transkei. These are
all things that accused has been shown to have imagined or invented.
He denied that he ever said within P.W.5's hearing
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that he had come to Oacha's Nek to cure the lunatics
there. He denied that while saying so he was holding a knife with an
He explained that P.W.5 implicated him falsely because he
observed that the accused is now facing a criminal charge.
He conceded that it was never put to P.W.6 that P.W.5
called P.W.6 following accused's complaint to P.W.5 about P.W.6. He
the failure to put such a question to the witnesses to his
I have no hesitation in rejecting accused's version as a
mere fabrication. See Phaloane vs R 1981(2) LL.R. at 246. The
accused further stated that one of the six men who came to him said
"We shall stab you even while you are still seated
if you don't stand up. This is Qacha's Nek in Lesotho if you don't
This utterance was in response to the accused's query
about why cigarette ashes were being tapped and peppered into his
There and then the men lifted accused by his shoulders.
Deceased fetched the accused a slap in the face. The accused jumped.
It is important to give his version verbatim at
"I jumped. I was holding a knife. I even
sustained a stab wound on the left. It is still there. I don't know
me. It was one of them.
I had no option but to stab whoever was near me. I did
not know who it was I stabbed.
I didn't know the deceased. I was seeing him for the
first time. I didn't see who I stabbed. I stabbed the one who was
of me when I was being fought by men who had stabbed me on
the left arm.
It is not true that I stabbed the deceased even when he
was running away. I am only implicated for I didn't belong to that
In the light of the above verbatim account of the
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events as narrated by the accused, it becomes clear that
Mr. Thetsane's remark that accused has denied the court a very
import aspect namely how in the face of six men armed with deadly
managed to unclasp his knife and wield it so expertly
that they all made way for him with the result that he was able to
deceased three times, becomes pertinent. Accused says
only God knows what happened.
Credible witnesses deny any attack on accused by
anybody. D.W.2's evidence that accused's knife was not a clasp knife
but a flick
knife accounts for the speed with which the blade sprang
into action against the deceased. The accused did not tell the court
this knife was a flick knife even when asked how in the
circumstances he described he could have managed among other things
it. A simple answer that the knife is a flick one instead
of a clasp one would have thrown much better light on the issue
it goes without saying that unclasping a clasp knife requires
far more elaborate effort and incurs much longer time than pressing
button on a flick knife to make the blade spring out.
It is noteworthy that the court learnt for the first
time when the accused was in the witness box that he was ever slapped
face by the deceased. Mr. Moorosi in argument tried to
show that neither Crown witnesses nor D.W.2 was always with the
accused throughout. But this argument in so
far as it relates to
events which took place in the disco hall runs counter to accused's
own version. First because he included P.W.6
among the six men who
attacked him in there. Next because D.W.2 denied that deceased ever
slapped the accused in the face. Furthermore
it was never put to
P.W.6 who according to the accused was close to him when he was
slapped in the face that in fact such a thing
occurred and that by
reason of his proximity to the participants at the time P.W.6 must
have witnessed the event. See Phaloane above.
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It was only when accused was in the box that the court
learnt for the first time that he was in the company of Ntaote and
in the hall drinking beer in a relaxed atmosphere as imagined
and purveyed before this Court by the accused.
Mr. Moorosi in argument contended that PiW.11
even if he could be said to be competent in his profession was
nonetheless negligent in that
he failed to exercise his skill with
competence. He pointed out that because there was possibility of
infection caused by the germs
on the weapon used to cause the wounds
P.W.11 should have entertained legitimate fears and administered
Needless to state this question was never
put to P.W.11. Classen J. in Small vs Smith 1954(3) SA 434
put it succinctly at 438 that :
"It is, in my opinion, elementary and standard
practice for a party to put to each opposing witness so much of his
own case of
defence as concerns that witness, and if need be, to
inform him, if he has not been given notice thereof, that other
contradict him, so as to give him fair warning and an
opportunity of explaining the contradiction and defending his own
It is grossly unfair and improper to let a witness's
evidence go unchallenged in cross-examination and afterwards
he must be disbelieved."
The defence's submission is accordingly rejected on the
score of absurdity. Needless to say, even as important an event as
that accused was stabbed with a knife by one of the
six men who attacked him was only heard for the first time when
accused was giving
evidence on his own behalf. This in my view is
what would bring grist to the mill if it was at all true. The
accused's lawyer would
then have had no problem at all in putting it
to the crown witnesses in order for the court to realise as early as
possible in the
case that it grounds the accused's defence. But it
was not done.
I have no hesitation in rejecting this as an
afterthought. Accused struck me as a total stranger
- 20 -to the truth.
I endorse the crown's submission that the court may not
convict an accused person simply because the defence version is
C.F. R vs Monyako CRI/T/7/75 (unreported) at 6.
By token of the same rule the court should look at the
possibility of the defence version being true. Thus it should weigh
and demerits of either version and make a finding.
Presence of six men all armed with knives and bent on
attacking the accused without prior warning while the latter was
relaxing with friends, but being so outwitted and
outmanoeuvred by the accused in the manner that he wishes the court
defies all reasonable probability.
The question put to P.W.5 under cross-examination was
that to the best of accused's recollection deceased was one among
had been taunting him. But in his evidence in chief
accused is positive that deceased was in fact the man who even hurled
at him. Clearly P.W.5 was in this way denied as clear an
opportunity as was desirable, of denying this subsequent positive
of the accused. C.F. Phaloane above.
I find that accused's story that he was stabbed in the
front of his left shoulder in the encounter he outlined is devoid of
because credible evidence showed that no one but the
accused was armed with a knife during the attack in the disco hall.
I reject his story that he even stabbed one of his
attackers as a mere product of his fertile but wild and misguided
Describing the incident in the disco hall accused said
when confronted by the six men he had no option but to stab whoever
him. He thus stabbed somebody who was facing him. He
stabbed him on right
- 21 -
front arm. Thereupon the attackers stood aside and
Ntaote arrived and said he and the accused should leave. After the
dispersed to the sides accused ran away and noticed
someone in front of him and statabbed him three times at the back as
was running away. Then accused ran outside. The accused
was hard put to it to give a satisfactory answer to the question why
stabbed a man who was running away. He instead contented himself
with saying he stabbed him because the men was fighting him. I
reject this as totally nonsensical.
Mr. Moorosi strained in an attempt to persuade
the court that there might have been circumstances which . influenced
the accused to behave as
he did. Evidence showed that whatever those
circumstances might have been, there was no palpable cause for his
Any that existed was in his imagination. The
accused said he had been drinking but was not drunk. P.W.5 said he
did not appear drunk.
D.W.2 said he wouldn't be able to say if the
accused was drunk for though they are friends they lived apart for
eight years. D.W.2
said even though he himself was drunk he was
conscious of his own acts.
Since they had taken more or less equal amounts of drink
it would not be wrong to resolve the issue in favour of P.W.5's
of the accused's
Hence I agree with Mr. Thetsane's submission that
ordinarily speaking surrounding circumstances in a case
where there are eye witnesses are an incidental issue
which is residual. Unlike in a case of circumstantial evidence where
is to be supplied by the crown, in this case people who
testified that they saw the events have been cross-examined. Hence
burden shifts to the defence to say why incidents
surrounding the event occurred. See CRI/T/37/88 R vs Ramatla
(unreported) at 14. C.F. R vs Mlambo 1957(4) SA 728 at 737
- 22 -
"Failure to furnish absolutely convincing
proof (of motive) does not present
an insurmountable obstacle because even if motive is
held not to be established there remains the fact that an assault of
a nature was inflicted upon the deceased that death
Credible evidence showed that after being stabbed while
fleeing from the accused, the deceased was stabbed at least once
had fallen on the girl Nthabiseng who was sitting along the
lower wall of the hall. The accused's version is not true that he
the stabbings while deceased was still on his feet. A
distinct feature worth mentioning is the accused's level of
on all accounts, is very low indeed. For example
when asked who the six people were who attacked him he said he did
not know them,
but that Tsautse appeared to know them. Asked whether
he asked Tsautse about their identity he said he did not because
to know them and instead he asked Ntaote because
they were unknown to him.
Asked how he hoped to get their identity from a man who
did not know them he said that's why he asked him.
He however conceded that it would be impossible
for him to get their identity from someone who did not
I am alive to the statement of the law by Hoffmann and
Zeffertt in the 3rd edition of South African Law of
Evidence at 409 that
"..... no onus rests on the accused to convince the
court of the truth of any explanation which he gives. If he gives an
even if that explanation is improbable, the court is not
entitled to convict unless it is satisfied, not only that the
is improbable, but that beyond reasonable doubt it is
false. If there is any reasonable possibility of his explanation
then he is entitled to his acquittal."
I have no doubt that accused's version is false beyond
reasonable doubt. In this view I am further fortified by the
in CRI/T/17/88 Rex vs Phepheng
(unreported) at 8 that there is
- 23 -
"in Broadhurst vs Rex 1964 AC 441 at 457
that save in one respect an accused who gives false evidence is in
the same position as one who gives none at
all and that in reaching a
conclusion in a case where the jury can make two inferences the fact
that the accused has given false
evidence serves as a factor in
strengthening an inference of guilt. Of course the onus rests on the
Crown throughout to prove its
case beyond reasonable doubt.".
It was more or less in recognition of the above
principle that Jacobs C.J. as he then was in CRI/T/80/71 Rex vs
Moroka Mapefane (unreported) at 8 said
"...... but an accused, giving evidence from
the shadow of the gallows so to speak, shouldnot and
cannot be convicted merely because heis a liar. His lies might
in certaincircumstances sufficiently swing the balanceagainst
I can hardly think of any reason why such circumstances
can be said not to be reflected in the instant case
I am satisfied with D.W.2's evidence that accused was
particularly rowdy that day. For no apparent reason he assaulted
Pitso and Fuma
whom he took to be soldiers because of their manner of
dress. I learn that one of them was in fact a soldier while the
not. D.W.2's narration of the events to the extent that
they fell within the time frame of the incident described by the
is not only reliable but most satisfactory. It
disproves accused's story. D.W.2's evidence cannot be tainted with
lies arising from
any ill motives because he is accused's friend. I
am satisfied that D.W.2 was wrongly recorded at page 8 of the P.E.
it is said he saw a knife drop from deceased. Further
that the manuscript relating to the above page shows that D.W.2 said
was very angry for he saw him holding a knife "yet with
deceased I didn't see any weapon."
Mr. Thetsane in an attempt to show that accused
- 24 -
was in no fear for his life when he embarked on these
dastardly and nefarious acts, referred me to authorities which relate
See R vs Attwood 1946 A.D. 331 quoted with
approval in R vs Molato 1974-75 30 at 33. But Mr. Moorosi
in reply indicated that it is clear that no case of self-defence can
stand in the circumstances revealed in this case. I am thus
of the necessity to deal with that branch of law. I may in passing
make an observation that Mr. Moorosi's view in this connection
is well conceived because in my opinion accused's plea raised for the
first time in his evidence in chief
apart from appearing to be a
fabrication, in its nature defies all cognisable elements of
self-defence as understood in our law.
To expect that three unprovoked stab wounds at the back
of an unarmed assault victim, effected while the latter was in full
and when he had already fallen, can ground self-defence on the
part of the perpetrator thereof truly beggars description.
The accused has used a lethal weapon on a man who posed
no danger to him. The stab wounds are sited on the upper back of
body. On all accounts this is a vital part of the human
body. Surely it must have occurred to the accused that in inflicting
stab wounds serious injury or death might occur.
It is not wrong to say people don't always mean to carry
out serious threats that they utter against others. It is not wrong
where an assault is immediately preceded by a threat to kill,
such a threat then assumes a definitive character. In a trial by
it would not be wrong for the jury to regard such a threatening
utterance as a pointer to accused's premeditated intent.
In this case the accused prior to the assault on the
deceased had been seen attacking other people.
- 25 -
His friend D.W.2 had to even be celled to cool him down.
In S vs Mini 1963(3) SA 188 at 192 Williams J.A.
neatly summed up the position as follows :
"A person in law intends to kill if he
deliberately does an act which he in fact appreciates might
result in the death of
another and he acts recklessly as to whether
such death results or not."
In the same case Holmes J.A. said at 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 to
...... It is not necessary that he should
have a desire to cause death."
R vs. Jolly 1923 AD 176 at 187 is authority for
the view that :
"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."
In keeping with this view expressed in R vs Butelezi
1925 A.D. 169 at 194 that
"the knife went through the chest wall
any person pushing a knife through the chest wall, must
have had the intention of causing serious injury to the person
C.F. CRI/T/36/85 R vs Lebitsa (unreported) I find
. that the crown has discharged the onus cast upon it.
The accused is accordingly found guilty of murder as
9th June, 1989.
- 26 -
JUDGMENT ON EXTENUATING CIRCUMSTANCES
Even though the accused was at liberty to give evidence
with regard to extenuating circumstances, he chose to rest that
of the matter on the eloquence of his counsel who, in his
address notwithstanding that the accused had told me under oath
conviction that he was not drunk, sought to persuade me to the
view that the accused was in fact drunk.
It is trite law that the onus of showing, on a balance
of probabilities, the presence of extenuating circumstances rests on
The test to be applied by the court in deciding on
presence of extenuating circumstances is a subjective one. The
matters to which
the court will have regard in considering the
question of extenuating circumstances are well summerised by Holmes
J.A. in S vs Letsolo 1970(3) SA. 476(A).
The learned Judge said at pp. 476E-477B:
"Extenuating circumstances have more than once been
defined by this court as any facts, bearing on the commission of the
which reduce blameworthiness of the accused, as distinct from
his legal culpability. In this regard a trial court has to consider
(a) whether there are any facts which might berelevant
to extenuation, such as immaturity,intoxication or provocation
(the list is
(b) whether such facts, in their cumulativeeffect,
probably had a bearing on theaccused's state of mind in doing
(c) whether such bearing was sufficientlyappreciable
to abate the moral blameworthiness of the accused's doing
what he did."
In deciding (c) the trial court exercises a moral
It should suffice that even though an accused
- 27 -
person may be said to have taken liquor, that in itself
does not entitle him to the benefit that otherwise the
existence of extenuating circumstances can endow on him unless the
had a bearing sufficiently appreciable to reduce his
Evidence led coupled with his own evidence that he was
not drunk tends to disqualify accused from the benefit that
generally hold under that heading. The fact
that immediately after achieving his purpose he discreetly decamped
from the scene speaks
volumes for the view that he was not drunk. He
took precautions immediately to avoid arrest. Could he have instantly
The fact that an innocent and. defenceless man was a
victim of the accused's unprovoked act disqualifies him from the
provocation under (a) holds. The accused is a mature man
therefore the question of immaturity does not feature.
In R vs. Naro Lefaso CRI/T/8/89 (unreported) at
16 this Court pointed out that :
"The purpose of an inquiry into the existence or
otherwise of extenuating circumstances is to afford a person
convicted of a
capital offence an opportunity of escaping the
ultimate penalty where such circumstances are shown to exist."
If I may use the parallel by Isaacs J.A. in Piet
Mdluli and Mandle Alfred Mdluli vs The King CRI. APP NO. 7/79
(Swaziland Court of Appeal decision) (unreported) at 6 extracted fromMbombo Dlamini and Others vs R 1970-76 Swaziland Law Reports
p. 42 that;
"It is wrong to believe that belief in witchcraft
can never constitute an extenuatingcircumstance but it is also
wrong, even thoughit would be merciful, to say that belief
inwitchcraft always extenuates ";
I would say it is wrong to believe that intoxication can
never constitute an extenuating circumstance but it is also wrong
because it would be weird
- 28 -
perverted and untenable, to say that intoxication always
It would be a sad day when sober and innocent lives can
be randomly taken away by drunks who embark on the senseless killings
a full assurance that the law would not subject them to the same
fate that their victims suffered.
It has been argued that the accused has been found in
judgment to be unintelligent. I don't think that even taken in
with the fact that he had taken some beer that would act
as a factor in reducing his moral blameworthiness. Otherwise a
would find favour in some quarters that unintelligent
persons be kept in an asylum and away from normal communities.
Although the accused has been shown to have imagined all
the torments by the people who he said were calling him an alien
is a fact that he was much better at home when proceedings
were conducted in Xhosa than in Sesotho.
From this it cannot be farfetched to come to the view
that when going through life, people noticing this disability made a
him or teased him.
It would seem he suppressed his dislike and intense
resentment of that practice. However it tormented his mind to the
whenever he imagined that anybody was taunting him with
being a Xhosa he felt that he must be punished.
Coupled with the drink that he had taken that day and
the fact that police instead of disarming him did something akin to
to him, his imaginations sought an instant outlet and
the deceased was the unfortunate victim thereof. The accused seized
to unleash his pent-up emotions and wielded his
knife against the innocent Tlhabeli Matabane with fatal results.
- 29 -
This factor taken along with drink is what in my view
has sufficient bearing on the accused's state of mind in doing what
he did to
enable him to escape the extreme penalty which he otherwise
most richly deserved.
Sentence : Sentenced to 14 years' imprisonment
JUDGE. 9th June, 1989.
For Crown : Mr. Thetsane For Defence : Mr.
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