THE HIGH COURT OF LESOTHO
In the matter between:
SEKHOAHLA NEHELO Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 28th day of May. 1993.
The accused is charged with the murder of Kabelo Rantso
on or about the 10th day of June, 1990 and at or near ha Mohasi in
He pleaded not guilty to the charge.
The defence admitted all the depositions of the Crown
witnesses at the preparatory examination except the deposition of
P.W.3 testified that on the day in question he visited
his aunt for the whole day. At about 11.00 p.m. he returned to his
home. On his way be found the accused and the deceased
fighting with each other near the home of the accused. They were
fighting with sticks. The accused was in his yard and
the deceased was outside. The accused's yard is not fenced with the
wire but with long poles which are at right angle to the
vertical posts. The accused and the deceased were separated by the
but were very close to each other as they exchanged blows with
the sticks. The accused was saying: "I shall kill you, it is
long time since you started troubling me."
P.W.3 says that he became frightened and hid himself
behind a tree and watched the fight from there. The fight with sticks
for some time until the accused produced a spear-like
weapon and stabbed the deceased with it on the chest. The latter fell
The accused had been holding the spear-like object in his left
hand and a stick in the right hand. Just before he stabbed the
he transferred the stick to the left band and held the
spear-like object in the right hand. That weapon was about a metre
After the deceased had fallen down the accused jumped
over the poles and went to him. He took out a knife and stabbed him
P.W.3 did not count how many times the accused stabbed
the deceased after the latter had fallen down. The deceased was just
there and making no movement when the accused was stabbing him.
After that he jumped over the poles
into his yard and went to his house. He brought a torch
and lit up the deceased and said: "'Mamapepe, I have killed
'Mamapepe is the accused's wife but she was not there when
the accused uttered those words. He went back to his house and then
P.W.3 says that he went to the home of one Moeketsi who
is the neighbour of the accused. He was going to report to him what
He found Moeketsi standing at the door of his house.
Even before he made his report; Moeketsi said that he had seen what
They both proceeded to the home of P.W.1
Karabo Motjetsi for the purpose of reporting what had
happened. On their way they met one Neo who took them back to the
Neo confirmed that the deceased was dead. From there P.W.3
went to his home and slept.
The evidence of P.W.1 Karabo Motjetsi is to the effect
that on the day in question there was a feast at his home. Late that
he found the accused and the deceased sitting down in one of
his houses. He listened to their conversation and heard that they
exchanging insulting words. Because he knew that the accused and
deceased were very troublesome people who always quarrelled with
other, he expelled them from his premises. They left. During the
night an alarm was raised and the deceased was found dead near
yard of the accused. In order to reach
his place the deceased did not have to pass there where
he was found dead.
P.W.2 Dr. Brissi He Schusster testified that on the 13th
June, 1990 he performed an autopsy on the body of the deceased. He
the opinion that death was due to haematothorax (left) caused
by a stabwound; the left lung was lacerated. The deceased had
stabwounds on the head, face, left chest side and back side
P.W.4 Kokoana Motjeketjane deposed that on the night in
question the accused came to his home and reported that he had killed
and that that person was in the graveyard.
P.W.5 Detective Trooper Chabalala deposed that on the
10th June, 1990 he went to ha Nkhasi and was shown a dead body of a
identified as the deceased in this case. He examined it
and found the following wounds: a wound above the left eye, one on
ear, one on the neck, ten wounds on the left ribs, eight
wounds at the back and two wounds on the head. He carried the dead
to the mortuary.
P.W.6 Police Woman Nkoro testified that on the 10th
June, 1990 was on duty at Hlotse police station when the accused
to her and gave her a knife. He said he had
5 killed a person with that knife.
The accused gave a sworn statement to the effect that on
the 10th June, 1990 he went to a feast at the home of Ncheme. He was
some food and while he was eating the deceased came and started
grumbling. He ignored him because he always behaved in that manner
whenever he saw him. Later that afternoon that the accused received a
message a friend at Lekhalong wanted to see him immediately.
for Lekhalong accompanied by a woman who was a visitor in the
village. On their way he deviated and went into the donga to
nature. While he was there he heard the woman screaming. He rushed
back to where he had left the woman. The deceased was
woman. The accused says that he intervened and stopped the deceased
from harassing the woman. Surprisingly instead of
continuing with his
journey to Lekhalong he returned to P.W.1's place leaving the
deceased with that woman because it turned out
that she was his
The accused returned to P.W.1's place and he was given
some bear. He sat down and drank it. The deceased suddenly appeared
him and asked him to come aside. He sat down and drank
it. The deceased suddenly appeared and insulted him and asked him to
aside. The people who were sitting with him stopped the deceased
from causing trouble. The accused says that he was hurt by the
of the deceased. He went into the
house and found Ngaka and Lebusetsa sitting on a bench.
He sat between them. He was given some beer. While he was drinking
the deceased came into the bouse. He caught him by the
shoulders and raised him up. He said he (accused) should come out so
he (deceased) can beat up his small belly. Ngaka intervened and
reprimanded the deceased. When P.W.1 came he expelled them from his
premises. It was at about 10.00p.m.
The accused says that when he left for his home the
deceased followed him and kept on insulting him. When he came to his
yard he went
to the gate. The deceased jumped over the poles which
form a fence around the yard and intercepted him before he came to
The accused went to him and pointed his stick at him. The
deceased reacted by delivering a stick blow at him. A fierce stick
ensued. One of the blows delivered by the accused landed on the
head of the deceased and caused an open wound. The deceased retreated
and jumped over the fence to the other aide. The accused remained
inside the fence and checked the wounds he had sustained.
The deceased produced a hat from his pocket and wiped
off the blood from his head. He looked at the hat and cried out and
I like this". He insulted the accused and rushed
towards him. The accused says that he felt frightened and nearly ran
However, he did not do so although he had the chance.
They were again engaged in a savage fight with their
sticks. Accused landed another blow on the head of the deceased. He
retreated and took the path leading down the slope. He
took about three or four steps and put his hand in his pocket. He
a knife which was already unclasped. He came rushing towards
The accused says that he struck the hand holding the
knife. It fell down outside the yard. They both rushed for it. But
came to it first and took it. The deceased came and
jumped on to his right upperarm. He thrust the knife at him and
stabbed him on
the chest. The deceased turned and it appeared as if
he was looking for something on the ground. He sat on the ground. The
says that he did not continue the fight after the deceased
sat down. He went to his house and reported to bis wife. He took a
and a torch and went to the charge office. He gave P.W.6 the
knife and the stick. He denies that he repeatedly stabbed the
after he sat down. He denies that he stabbed him with a
weapon which looked like a spear.
The evidence of P.W.3 who is the only eye-witness is
challenged on the ground that it is unreliable. It was submitted that
if he was
there the natural reaction by him would have been to raise
an alarm. He did nothing but merely watched the fight
from behind a tree where he was hiding. At the relevant
time P.W.3 was only about 19 years old. He was still a youth and not
enough to be expected to make wise decisions when he is
confronted with an emergency, I am of the view that he did his best
the incident to the accused's neighbour immediately
after the end of the fight,
I had a very good impression of P.W.3 as a witness and
that he was truthful and honest. He gave his evidence well and
put to him in a satisfactory manner. In any case
his evidence is to some extent corroborated by that of the accused.
He came to the
scene of the fight after it had started. He says that
the accused was inside the yard and the deceased was outside. In
during the stick fight the combatants were separated by
the fence. This part of his evidence is corroborated by the accused.
inconceivable how he could make up such a story unless he saw
P.W.3 says that the accused used a weapon which
resembled a spear to stab the deceased on the chest. I am of the view
that there is
substance in his evidence. When two people are fighting
with sticks and there is a fence separating them from each other, it
impossible to extend one's arm and stab the other person
with a knife. The other person would be about two paces away where he
be reached by hand. Moreover, the accused
would have exposed himself to serious danger to hie head
when, he extended his right arm leaving his head exposed. However,
spear-like weapon which was about one meter long it would be
very easy to reach out for the target.
Regarding the number of injuries inflicted by the
accused with the knife, the evidence of P.W.3 is corroborated by the
performed the autopsy and the police officer who examined
the dead body of the deceased. There were well over twenty stabwounds
the body of the deceased. This is consistent with the evidence of
P.W.3 that after the deceased had fallen down the accused took
knife and stabbed him many times.
On the other hand the accused has told the Court nothing
but a pack of lies. On the question of injuries he says that he
deceased on the chest once and left him sitting down.
This is a lie. He was seen by P.w.3 when he jumped over the fence and
the deceased numerous times. When he is asked to account for
the numerous wounds found on the dead body, he boldly says that that
question can be put to P.W.3 who remained with him. I think that is
an unsatisfactory explanation after P.W.3 has explained what
His explanation of how he got the possession of the
is not only improbable but false beyond any reasonable
doubt. He says that as the deceased came towards him with a knife in
hand, he struck that hand holding the knife with his stick.
It fell outside the yard. They both rushed at it. He was so quick
he reached the knife before the deceased did so. That is
improbable because the knife fell on the deceased's side of the
(deceased) would have reached it before the accused did so.
Another lie that the accused has told this Court is that
in the stick fight he was the victor because he managed to land about
blows on the head of the deceased at different times. The doctor
found no lacerations on the head but stabwounds. A stick cannot
a stabwound when the blows are delivered in the manner the accused
described. There ought to have been lacerations on the bead.
again confirms the evidence of P.W.3 that the infliction of the wound
on the chest was the cause of the deceased's fall.
I shall now deal with the question of self-defence
because what the accused is saying is that he was defending himself
unlawful attack within his premises. I have already
rejected his story but even if his story were to be believed I am of
that self-defence is not available to him. In Gardiner and
Lansdow's Criminal Law and Procedure, Vol.2.p.
1413, the following propositions, based on authority,
are stated; we quote in so far as they are relevant to this case.
"Where a man can save himself by flight, he
should flee rather than kill his assailant.
So think Matthews (48,5,3,7,) and Moorman
(2.2.12) and see also van der Linden
(2.5.9); R.v.Odgers (1843) 2 Mood & R. 479;
R.v. Smith (1837) 8 C&P.160: but Danhounder
(c.72) with his ideas of defence against
dishonour, is of the contrary opinion. But
no one can be expected to take to flight to
avoid an attack, if flight does not afford
him a safe way of escape. A man is not
bound to expose himself to the risk of a
stab in the back, when by killing his
assailant he can secure his own safety...
Moorman (2.2.12); van Quistory, para.
In considering the question of self-defence, a jury must
endeavour to imagine itself in the position in which the accused
In the instant case and according to the accused's
version there were two occasions when he had ample chance to flee.
says that he had nowhere to flee to because the attack
was within his own premises. The first occasion is when he
allegedly struck the deceased on the head with a stick
at the time they were fighting in the yard. He says that the deceased
and jumped over the fence. He took out a hat from his
pocket and wiped off the blood from his head. He then looked at the
the hat and then rushed at the accused. I am of the view
that the accused had ample chance to flee when the deceased retreated
jumped over the fence and took out a hat from the pocket, looked
at it and then started the attack again. The accused could have
and could not have exposed himself to risk of a stab at the back
because the deceased was far from him. He had to jump over
before he came to the accused. The accused seems to be under the
impression that he could not be expected to run away from
home. That is not what the law says. The law is that where a man can
save himself by flight, he should flee other than kill
The second occasion was when again the accused landed
another stick blow on the head of the deceased. The blow had the
because the deceased turned and walked along the path
that goes down the slope. He was walking in a direction leading away
accused. When he was a few paces from the accused he took
out a knife from the pocket and again attacked the accused who was
on the other side of the fence. The
accused had ample chance to run away to save himself. He
did not do so because he thought the accused would set his houses on
or kill his children. That is sheer speculation because the
accused was fighting with the accused and not his children. He never
had the intention to set accused's houses on fire. If he had such an
intention he would have gone there at night when the accused
children were asleep.
If the accused was protecting his dignity, our law does
not allow him to do so. If there is a chance to flee without putting
at risk he must do so. I have found that the accused had
such a chance on two occasions before he fatally wounded the
as I have said above the story of the accused is
nothing but a pack of lies.
According to the evidence of the doctor who performed an
autopsy upon the body of the deceased there were multiple stabwounds
left side of the chest. Detective Trooper Chabalala counted
ten stabwounds on the left side of the chest. It is common cause that
only one stabwound on the chest was the cause of death.
Mr. Mathafeng, counsel for the defence, submitted that
the first stabwound which incapacited the deceased forcing him to sit
or to fall down according to the Crown witness, was
inflicted under the circumstances which justified
self-defence. I have stated above that the present case is not a case
If two people are separated by a fence consisting of
poles they cannot be heard to say they had not chance to flee in
order to save
their lives. The accused and the deceased could have
saved their lives by flight without exposing themselves to a stab or
at the back. The deceased did retreat and jump over the fence
without any fatal consequences. He did turn and walkaway without any
fatal consequences to himself. The accused had every chance to do the
In the result I come to the conclusion that the accused
had the intention to kill the deceased in the sense that he foresaw
that his actions may cause the death of the deceased
but he was reckless as to whether death occurred or not.
For the reasons stated above the Crown has proved its
case beyond a reasonable doubt. The accused is found guilty of murder
My Assessors agree.
15 28th May, 1993.
For Crown - Mr. Ramafole For Defence - Mr.
It is trite law that absence of factors justifying a
finding of dolus directus is an extenuating factor. In the present
case I found
that the intent of the accused was dolus eventualis. See
R. v. Sigwahla, 1967 (4) S.A. 566 (A.D.) at p. 571.
I also found that there was no premeditation which is
closely linked to the absence of dolus directus and presence of
as extenuating circumstances.
Mr. Mathafeng submitted that if the accused kills in
circumstances which do not justify killing in self-defence but
his conduct to be justified, his belief may be an
extenuating circumstance. See R. v. Werner and another 1947 (2)
at p. 837; R.v. Kgau 1958 (2) S.A. 606 (S.W.A.). In
the instant case the evidence of the accused establishes beyond any
he honestly believed that his conduct was justified. The
deceased was a troublesome person who followed the accused and
him near his home.
16 I find that there are extenuating circumstances.
Sentence: Seven (7) years' imprisonment. My assessors
28th May, 1993.
For Crown: Mr. Ramafole For Defence: Mr. Mathafeng.
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