CRI/T/6/89
IN THE HIGH COURT OF LESOTHO

In the Matter of :

REX

v

1. GERARD NKAKI 2. 'MOKO NKAKI

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
21st day of June, 1989.

The two accused are before me on a charge of muder. it
being alleged that on or, about. 21st July, 1987 and at or near Upper
Thamae
in the district of Maseru they both or either of them
unlawfully and intentionally killed one Mathe Seahle. They have
pleaded not
guilty to the charge.

It may be mentioned from the word go that Mr.
Thetsane. counsel for the crown, accepted the admissions made by
Mr. Pitso, who represents the accused in. this case, that the
defence would not dispute the depositions of Kelebone Nkaki, Dr.
Nacsric Oliver.
D/Tpr Selebalo and D/Tper Pelea who were,
respectively, P.W.4, 6, 7 and 8 at the proceedings of the Preparatory
Examinations. In
terms of the provisions of S.273 of the Criminal
Procedure and Evidence Act; 1981 their depositions were
accepted as evidence and it became unnecessary, therefore, to call
the deponents as witnesses in this trial.

2/ It is

-2-

It is common cause from his evidence that on 27th July,
1987 Dr. Oliver Performed a post mortem examination on a dead body of
a 33
years old male African. The body was identified before him by
Kelebone Seahle as that of the deceased, Mathe Seahle.

The external examination revealed that the deceased had
sustained a 7 cm laceration under the right armpit a 3 cm laceration
on the
head,bruises on the left arm, a 2 cm laceration on the left
lumber area and a laceration under the left armpit. On opening the
body,
the medical doctor found that the laceration under the left
armpit had penetrated the left lung causing a . massive haemothorax
and collapse thereof with the resultant death of the deceased.
He formed the opinion that a sharp instrument was used and massive
force
applied to inflict the injury on the left armpit of the
deceased.

I am prepared to accept as the truth the unchallenged
evidence of the medical doctor that the deceased died as a result of
the injury
that had been inflicted on his left armpit. The next
guestion that remains for the determination of the court is whether
or not the
accused are the persons who inflicted the injuries
and. therefore, brought about the death of the deceased.

In this regard it is common cause that on the night in
question, 21st July, 1987, the deceased, the two accused and P.W.2,
Pte Cheko,
visisted Upper Thamae lodge for beer drinking. According
to P.W.2, the deceased and the two accused were already drinking beer
in
the public bar of the lodge when the first noticed them. He was
not, therefore in a position to tell the. court whether or not they
had come into the public bar before

3/ his arrival.....

-3-

his arrival there. In any event P.W.2 told the court
that after exchanging greetings with accused 2 who is an ex-member of
the army,
and acquantance of his he went into the private bar of the
lodge for his drinks. I shall return to his evidence in a moment.

The evidence of P.W.1, Matia Lethapa, is to the effect
that as of 21st July, 1987 he was employed as a night watchman at
Upper Thamae
lodge. He reported for duty at 6 p.m. on that day. At
about 9.p.m. he was standing at his post at the gate of the lodge
when he noticed
the two accused arriving in a combi. They parked
their combi outside the gate and entered into the bar. On several
occasions he noticed
the two accused coming out of the bar carrying
bottles and tins of beer which they consumed in their combi. At one
time he (P.W.1)
even talked to accused 1 and warned him that it was
not permissible to take bottle of beer out of the gate of the lodge
premises.
However, Accused 1 assured him that they would not go away
with the bottles and he (P.W.1) ignored the matter. As there was
electrict
light illuminating the area where,he was standing guard at
the gate P.W.1 had no difficulty in seeing the accused going to and
from
the bar for their beers.

At about between 11 p.m. and 12 midnight, P.W.1
noticed the deceased, in the company of a person he did not know,
leaving the lodge. At the time the deceased
and his companion Passed
through the gate at which he was standing guard, P.W.I noticed that
the two accused were standing about
4 paces (indicated) away from the
gate. Accused 1 then told the deceased that he was "cabating"
them at the main bus rank in Maseru. By that

P.W.1

-4-

By that P.W.1 understood accused 1 to mean that the
deceased was interfering with the operation of their taxi at the bus
rank.

As accused 1 thus talked to him, P.W.1 noticed accused 2
suddenly delivering blows with fists on the deceased whose blanket
dropped
to the ground in the process. The deceased tried to pick up
his blanket but accused 2 stepped on it with his foot. The deceased
struggled
to pull away his blanket but accused 2 produced a knife
with which he stabbed him under the armpit. P.W.1 could, see the
knife because
it was shinning in accused 2's hand as the latter was
stabbing the deceased.

Whilst accused 2 was assaulting the deceased in
the manner described, accused 1 joined him by kicking and hitting the
deceased with fists. As he was
being assaulted by the two accused the
deceased who was not armed with anything moved backwards until he
fell into a furrow. Apart
from telling the accused and the deceased
to stop what they were doing, the deceased's companion, who was,
however, not called as
a. witness in this trial, did nothing to
intervene, in the fight.

According to him, P.W.I was also scared to intervene in
the scaffle particularly so becasue he realised that accused 2 was
using
a dangerous weapon. He, however, went into the bar of the lodge
to enlist assistance. On his return from the bar P.W.1 was in the
company of many other people amongst whom was P.W.2. On arrival at
the place where the fight was taking place, P.W.I noticed that
the
deceased was no longer in the furrow into which he had fallen. He was
then lying prostrate in the middle of the road. Accused
2 was
standing on the side

5/ of the taxi

-5-

of the taxi combi which accused 1 was driving towards
where the deceased was lying in the road, clearly in an attempt to
run him over.
According to P.W.1, the deceased was saved by P.W.2 who
rushed at and stood in front of the taxi combi requesting accused 1
to stop
the vehicle so as not to run over the deceased in the road.
Accused 1 complied with the request of P.W.2 who then ran to a nearby
police station in the village of Upper Thamae.

Returning to his evidence, P.W.2 testified that at about
a little before 12 midnight on 21st July, 1987 he was already leaving
the
lodge for his house. As he went through the gate he noticed a
person lying prostrate on the road. A taxi combi was moving towards
that person. The vehicle had its lights on and was illuminating the
road, P.W.2 had, therefore, no difficulty in identifying the
deceased
as the person who was lying prostrate in the road. He was, however,
no longer wearing the blanket .. he had been wearing
in the public
bar. The deceased had clearly been injured as there was a pool of
blood at the spot where he was lying in the road,,

P.W.2 confirmed the evidence of P.W.1 that he then
rushed at and stood in front of the taxi combi which was being driven
by accused
1 whom he knew very well as they had at one time, been
renting rooms on the same stand. He could not see where accused 2 was
at that
time. P.W.2 then knocked at the windscreen of the taxi combi
and told accused 1 to stop the vehicle so as not to run over the
deceased.
According to P.W.2 the vehicle

6/ was then......

-6-

was then about 2 paces from the deceased and on the
verge of running him over.

When accused .1 complied and stopped his vehicle, P.W.2
rushed to make a report to the police at Upper Thamae police post. He
immediately
returned to the scene of crime in the company of P.W.3,
Tpr Baholo. This is confirmed by P.W.3 who testified that on arrival
at the
scene of crime he found many people gathered there. The
deceased whom he knew very well as a traffic police was lying in a
pool of
blood in the road. Accused 1, who was standing with another
person next to a taxi combi which had fallen into a furrow some 20
paces
away from the deceased, was pointed out to him. P.W.3 went to
accused 1 and his companion but as he approached them and before he
could identify him, accused 1's companion ran away and disappeared
under cover of darkness. However, P.W.3 was able to arrest and
take
accused 1 to Upper Thamae police station. On the following day he
handed him over to Tpr Selebalo of the Maseru Police. P.W.3
further
told the court that before he left with accused 1 for the police
station at Upper Thamae, ie Tpr Tsiu had arrived at the
scene of
crime in a vehicle in which the deceased was rushed to Queen
Elizabeth II hospital for medical attention.

This is confirmed by P.W.2 who testified that he
accompanied the deceased to the hospital. However, on arrival at the
casuality department
of the hospital the deceased was certified dead
and had to be taken to the mortuary.

7/ The evidence ....

-7-

The evidence of Kelebone Nkaki was to the effect that he
was the elder brother of the two accused. On the early morning 22nd
July,
1987 accused 2, who appeared drunk and had some blood stains on
his trousers, arrived at his house at Upper Thamae. To his inquiry
about the blood stains on his pair of trousers and where he came from
at that early hours of the morning accused 2 informed Kelebone
Nkaki
that he had been involved in a fight at Mafeteng where he ordinarily
stayed. He was, however, on his way to Leribe where their
original
home was.

Before leaving for work in the morning of 22nd July,
1987 Kelebone Nkaki gave accused 2 a change of clothes so that he

could wash the blood stains on his pair of trousers. On
his return from work later on that day kelebone found that accused 2
had already
left. He assumed that he had gone to his home in Leribe.

According to Tpr Pelea in September, 1987 accused 2 was
arrested and kept in Police custody at Mafeteng in connection with a
different
offence. The police officer then received a certain report
following which the accused was transferred to Maseru police. This is
confirmed by D/Tpr Selebalo who also told the court that on 18th
October, 1987 accused 2 took him to Upper Thamae where He was to
point out the place where he had thrown away the knife he had used in
his fight with the deceased. A search was made for the knife
which
could, however, not be found.

In their evidence on oath the two accused conceded that
on the evening in question they visited Upper Thamae lodge for beer
drinking.
They were travelling in a taxi combi which was driven by
accused 1. After parking their vehicle

8/outside the

-8-

outside the gate of the lodge premises, the two accused
entered into the public bar where they met P.W.2. They drank
altogether between
10 and 12 bottled beers. They denied, however, the
evidence of P.W.1 that there were occasions when they went outside
the bar with
beers that they consumed in their vehicle.

I must say I observed all the witnesses as they
testified from the witness box. P.W.I impressed me as a witness of
the truth. I am
unable to think of a good reason why in a lodge
milling with many people he could pick on the two accused persons and
fabricate against
them that on several occasions he saw them going
out of the bar with beers which they consumed in their vehicles. He
was honest enough
to tell the court that when he pointed to him that
it was not permissible to take bottles of beer away from the lodge
premises accused
1 assured him that they would return the bottles
after use and he ignored the matter. I am prepared to accept
as the truth P.W.1 's evidence that he did, on several occasions, see
the two accused taking beers to their

vehicle and reject as false the accused's story that
they did

not.

Be that as it may, the accused conceded that at about 12
midnight, the public bar was about to close down and they left for
their
vehicle. As they went through the gate of the lodge Premises
they noticed two people walking about 5 paces ahead of them. One of
the two people made a remark about the vehicle in which the accused
were travelling to the effect that they (accused) were transporting
passangers in vehicles that were not in good conditions,

9/ It will .....

-9-

It will be remembered that according to the evidence of
P.W.1 the accused were waiting outside the gate of the lodge premises
when
the deceased and his companion passed next to them. The accused
were the first to talk to and attack the deceased who had not uttered
a word to them or made any remark about their vehicle. In their own
testimony, the accused told the court that they were not conveying
passangers at the time nor was there any­thing apparently wrong
with their vehicle. I find it unconvin­cing that, in the
circumstances, the deceased could have remarked that the accused were
conveying passangers in vehicles that were not in good conditions.

In any event accused 1 told the court that he had
identified one of the two people as the deceased, a traffic police
officer in Maseru,,
When accused 2 asked him who those two people
were, accused 1 told him that one of them was the deceased, a traffic
police officer.
Accused 2 then asked whether those two peole were
police officers even at night. In reply accused 1 said they just
wanted to "cabata"
people meaning that the police officers
were molestning people.

There was then an altercation between the deceased and
his companion on one hand and the two accused on the other hand. In
the course
of that altercation the deceased hit accused 2 a blow on
the face with a fist and a fight ensured.

According to the accused when the fight started, accused
1 moved away. The fight was, therefore only between the deceased and
accused
2 who told the court that the deceased was no match for him.
After he had hit him the first blow he told the deceased "net he
(accused 2) was going to beat him up until he swearted

10/ From then ......

-10-

From then onwards he was punching the deceased like a
boxing bag. Eventually the deceased lowered his hands and threatned
that he
was going to shoot him. As the deceased's hands were
underneath his blanket he feared that the deceased had in his
possession a gun
with which he was going to shoot him. Accused 2 then
took out his knife with which he stabbed the deceased in
self-defence.

It is clear from the evidence that accused 1 was the
person who had a complaint that the deceased was interfering with the
operation
of his taxi at the Maseru bus rank. 1 do not believe that
he could have stood aside when the deceased was fighting with accused
2,
his own brother. On the contrary I am inclined to accept as the
truth the evidence of P.W.1 that when accused 2 started assaulting
the deceased, accused 1 joined and assisted his brother in the
assault on the deceased. Indeed, the evidence of P.W.1 that accused
1
was also fighting the deceased is corroborated by that of P.W.2 who
told the court that when he first came to the scene of crime
accused
1 was driving his vehicle

towards the deceased clearly in an attempt to run him
over.

I reject as false the defence's story that accused 1 did
not join

accused
2 in the assault on the deceased and accept as the truth the crown's
version that he did. Bearing in mind that there was electric
light
illuminating the area where the fight was taking place accused 1 must
have realised that accused 2 was stabbing the deceased
with a knife.
He nonetheless joined in the attack on the deceased thus associating
himself with what his brother, accused 2 was doing.
On the principle
of common purpose, accused 1 is equally responsible for the injuries
that accused 2 inflicted on the deceased.

11/ As regards ......

-11-

As regards the defence of self-defence, it is
signi­ficant that in his own mouth accused 2 told the court that
the deceased was
no match for him. He was just punching the deceased
like a boxing bag. Although accused 2 testified that deceased
threatened to shoot
him and he could not see if the deceased had a
gun in his possession as his hands were underneath his blanket, P.W.1
told the court
that the deceased's blanket had dropped down at the
time accused 2 started attacking him. He was unable to pick it up
from the ground
because accused 2 had stepped on it by his foot and
stabbed him with a knife. The evidence of P.W.1 was on this point
corroborated
by that of P.W.2 who told the court that at the time he
first came to the scene of crime the deceased was lying prostrate in
the
road and no longer wearing the blanket he had been wearing in the
public bar. In my view the accused are being dishonest with this
court in their story that they believed the deceased had in his
possession a gun with which he threatened to shoot. By and large
I am
satisfied that at the time he stabbed the deceased the fatal wound
under the left armpit accused 2's life was not in danger
at all. That
being so, self-defence cannot avail him. Considering the evidence as
a whole there is no hesitation in my mind that the question I
have earlier posted viz. whether or not the accused are the person
who
inflicted upon the deceased the injuries that brought about his
death must be answered in the affirmative.

Regard being had to the fact that a knife was used with
massive force to stab the deceased on the upper portion of his body I
am satisfied
that the accused were aware that death was

12/ likely to

-12-

likely to result. They acted reckless of whether or not
death

did occur. Consequently the accused had the requisit
subjective intention

to
kill, at least in the legal sense.

In my judgment both accused are guilty of murder and I
accordingly convict them .

Both my assessors agree.

B.K. MOLAI JUDGE

21st June, 1989

For Crown : Mr. Thetsane,
For Defence : Mr. Pitso.

-13-

CRI/T/6/89

EXTENUATING CIRCUMSTANCES

This court is now enjoined by S. 296 of the Criminal
Procedure and Evidence Act, 1981 to state whether or not there
are any factors tending to reduce the moral blameworthiness of their
act.

The court has found no evidence indicating that the
accused had premeditated the death of the deceased. There is also
evidence that
shortly before they assaulted and killed the deceased
the accused had been drinking beers at the lodge. This must have
affected their
minds so that they were prone to do things they would
not do when sober.

I find,therefore, that the accused's state of
intoxication and absence of premeditation for the death of the
deceased do constitute
extenuating circumstances in this case. The
proper verdict is that the accused are guilty of murder with
extenuating circumstances.

My assessors agree.

Sentences : A.1 - 9 years imprisonment A.2 - 12
years imprisonment

B.K. MOLAI JUDGE

21st June, 1989.