CRI/T/51/87

IN THE HIGH COURT OF LESOTHO
In the matter of
:

REX

V

MACHAHA KOATLA Held at Butha-Buthe

JUDGMENT

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
22nd day of August. 1989.

The accused now aged 20 years is charged with the murder
of Kolomane Lehana, who died from a stab wound inflicted between his
shoulders
on 25th June 1987.

The accused pleaded guilty to the charge but a plea of
not guilty was entered in order to enable the crown to discharge the
onus of
proving the crime committed beyond reasonable doubt. The
charge is of murder.

The evidence of P.W.1 D/Sgt Mokoroane P.W.3 Dr. Oliver
and P.W.8 Trooper Khobotlo at Preparatory Examination was read into
the recording
machine as it had been admitted for the defence and
accepted by the crown. It has thus formed part of the record in
these proceedings.

The crown led viva voce evidence of P.W.2
Sekerenchana Koto who testified that on the day in question he had
been at

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at the shop of the accused's uncle.

He was persuaded despite his reluctance to accompany the
accused and one Mokuoane to the home of a girl 'Masenono or Ntsoaki
Lehana
P.W.6 the grand-daughter of the deceased. The home is at Ha
Nyenye.

The accused and his companions accordingly set out from
'Mathata for Ha Nyenye.

The purpose for the expedition as intimated by the
accused to P.W.2 was in order to abduct P.W.6,

When they were about to reach the scene accused
intimated that he would like Aupa to go and ask P.W.6 to come and see
him. Aupa was
not there. The task was assigned to George who
obliged.

The accused and his company approached the corner of the
yard enclosing deceased's house.

P.W.6 came out and reported to the deceased that there
were some people outside.

At the time the accused was in the four court of
deceased's house.

The deceased came out and asked the accused who he was.
The same question was put to the accused's companions but none
vouchsafed
him any reply,

P.W.2 Sekerenchane tried to reply but the accused
stopped him saying he didn't want the deceased to recognise him.

The deceased expelled these young men from the vicinity
of his yard.

Later the accused was identified through the thrust of
light streaming from the door by P.W.6 when the accused was standing
opposite
the door

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inside the deceased's yard.

It is common cause that deceased had a walking stick.

The accused having retreated to a place near but outside
the gate intimated to P.W.2 that he was going to stab the deceased
with a
knife Ex."1".

P.W.2 wrested the unclasped knife from the accused's
hand.

Shortly afterwards the accused struggled for possession
of his knife from P.W.2 and P.W. 2 surren­dered it to him. P.W.2
testified
that he formed the impression that the accused having
clasped the knife, placed it in his pocket under his blanket.

Then P.W.2 betook himself from the scene when shortly
afterwards the deceased approached the gate. When P.W.2 looked back
he saw the
accused extend his hand to the deceased who fell
immediately afterwards.

P.W.2 conceded that in this court he said he did not see
the accused extend the hand towards the deceased but that this is
what he
had said in the court below and swears that what he told that
court is the correct version.

P.W.6 regarding the stabbing says that the deceased had
just turned after closing the gate and was facing her when she saw
the accused
extend his hand towards the back of the deceased. The
accused was behind the deceased.

The deceased came next to the door where he asked P.W.6
to support him.

She helped him to a chair inside the house. She had
observed nothing in her attempt to find out what the matter was with
the deceased
when she examined him.

/She

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She testified that the deceased fell when he was inside
the house. To this extent her evidence is in sharp contrast with
that of
P.W.2 who said the deceased fell immediately after receiving
what appeared to be a blow at the back from the accused.

It is common cause that the accused had taken beer that
day. At least the crown evidence did not dispute this fact. The
accused testified
to what amounts to his advanced stage of
drunkenness caused by his having indulged in drink since early that
morning and topping
up the earlier intake of beer by drinking two
more quarts at 'Mantala's at Ha Nyenye, and buying two more before
heading for the
vicinity of the deceased's yard.

Facts are not in serious dispute in this case though the
crown witnesses showed that the stabbing was effected on the
deceased's back
when he was facing away from the accused. The accused
made a demonstration showing he was face to face with the deceased
when he
stabbed him with George standing between the two and facing
the deceased.

The accused said the deceased had hit him with a cane
stick at the back and felled him.

Intoxication if properly pleaded is a defence to a
charge of murder. See S. vs. Ndlovu 1965(4) SA. at 695 C to
E.

Where it is not pleaded the court can scarcely treat it
as a defence on behalf of the accused person.

That is not to say where it features in evidence
sufficiently to ground the fact that though the killing was
intentional such drink
did not affect the accused's perception as to
reduce his moral blameworthiness.

What is clear is that at the time the accused inflicted
the blow there was no danger posed by deceased

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to him. Consequently I find the accused guilty of
murder with extenuating circumstances on account of the undisputed
intake of liquor
he had Consumed."

JUDGE.
22nd August, 1989.

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ON MITIGATION

I have heard your counsel's plea in mitigation which
painted you a far more admirable person than you actually are.

It is granted that you pleaded guilty to murder. Often
this is a sign that you are remorseful.

Attention has been drawn to your deportment in court. I
have observed that you had your arms folded across your chest in the
manner
of humble monks.

It has been pleaded that you should be given lenient
sentence. I have been told that your family have gone out of their
way to palliate
the hurt suffered by the deceased's family. That they
offered a beast, a coffin and other necessaries for the burial of the
deceased.
They have also paid 4 head of cattle to raise deceased's
head.

If there are any who deserved the favour of this Court
it is your family.

As for you, while you may wish to enjoy these attributes
by proxy, yet a brief history of how you went out of your way to
pester 'Masenono
and in turn her family including use of or threat of
physical violence against her and her sister, one would be inclined
to ask whether
attributes ascribed to your family fit you as well.

A simple answer is that they sit ill on you.

It is to be regretted therefore that all in the name of
propitiating the hurt suffered by the deceased's family culminating
in the
loss of their beloved caused by you should have been put to
all that trouble when they are altogether innocent.

I have heard of meetings which were held between

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your family and the deceased concerning your mis­deeds.

I think it is about time this Court showed that your
misdemeanour cannot go without a curb.

Your family has suffered more than they deserve. It is
time you shouldered consequences of your mis­deeds.

The most lenient sentence I can impose is that of seven
years' imprisonment.

My assessors agree.

JUDGE.
22nd August, 1989.

For Crown : Mr. Sakoane

For Defence : Mr. CD. Molapo.