CRI/T/12/2003
IN THE HIGH COURT OF LESOTHO
In the matter between
REX
V
PHAMONG MOHALE KHOTSO MOHALE
JUDMENT
DELIVERED BY THE HONOURABLE MRS. JUSTICE K.J. GUNI ON THE 13th DECEMBER, 2004
Charge_______________murder----------------------------------
Private defence---------------definition thereof-----------------------
Common purpose-----------------------------------------------------------
Charge----------------------------murder--------------------------------
Private defence----------------'definition othere of------------------
When can private defence be successfully pleaded?
SUMMARY
The two accused are charged with the crime of murder. They are brothers. The elder brother is accused 1 (Al). The younger brother is accused 2 -(AZ). Together with Weir sister the two accused were traveling on the road in the village of HA JIMISI, MAZENOD, in the district of MASERU. There was an old couple - the husband - Pw6 and bis wife -deceased traveling on the footpath towards their residence in that same village. The two accused together with their sister deviated from the road which they were following. They went to intercept and stop the old couple on their way. There they assaulted both of them The old couple tried to run away from their assailants. The husband - Pw6 successfully escape from the assaults. The wife deceased was stabbed with a knife and hit with a stone at toe back of her head. She sustained fatal wounds from which she died.
The accused pleaded private defence - commonly called self-defence. They allege that they were attacked first by the old couple. They claim the initial attack was verbal- they were threatened with death. The second attack was physical They allege the old man assaulted Al with an iron rod. They also allege the old lady retrieved a knife from their luggage. With the knife in her hand, she rushed at A2 trying to stab him. A2 picked that knife when it fell from the hand of tbe old lady. Be then in self defence stabbed her many times.
HELD: Before an accused can successfully plead private - defence - self- defence - there must be competent evidence showing that there was an unlawful attack at the accused person's Interest
Further held: Where there are two or more accused who combine their efforts in order to achieve an unlawful objective they are all liable and responsible for an act of one or others, which is done in the furtherance of their objective.
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BACKGROUND HISTORY OF THE CASE
The deceased and her husband are the residents of HA JIMISI -MAZENOD, in the district of Maseru. The unnamed villagers of HA JUMISI accused the deceased of witchcraft. They threatened her with death. For her safety the couple decided to leave that village. They sought and found refuge here at MASERU. They hired a room on someone's property. They rented out their own house at HA JIMISI to one PULE LESALA. The rentals from their house was to be their only regular source of income. LESALA paid rentals irregularly. Eventually he failed to pay any rent at all. By then he was living in the old couple's house with a concubine -whom he introduced as his wife. It seems the concubine offered to buy the old couple's house instead of paying rentals. They agreed. A contract of sale of that property was entered into between the old couple and that couple of LESALA and his concubine. The deposit was paid and accepted. That was the first and the last payment ever made in respect of the purchase price of that property. Since the old couple was already in financial problems when they sold their house, the none payment of the purchase price of their property sank them deeper in debt for none payment of rent at their refuse. The chieftainess of HA JIMISI paid them regular visits at their refuge. Seeing their financial difficulties she advised them to vacate the rented accommodation and offered them a shelter on her own property at HA JIMISI. They accepted.
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While they lived in the shelter in the yard of chieftainess they sued PULE MOSALA for eviction from their house for breach of contract of sale because she did not pay fully the purchase price of that property.
Despite the judgment the accused persons' mother remained in occupation of that property. When the chiefs bungle or messenger was asked to forcibly throw her out in accordance with the court's judgment, he - the bugle relented saying that the accused persons' mother should not be forced out.
He persuaded the old couple to leave her alone alleging that she will come out on her own. The old couple did not take the law into their own hands. They persistently followed the legal channels. They had hoped the authorities will come to their assistance. The accused person's mother stayed in occupancy of the old couple's house in total deviance of the judgments of the court. When she died it emerged that she was not after all PULE LESALA'S wife. Her really husband emerged. He claimed her corpse, property and children. He took them to their home MANTSONYANE where he buried her.
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The chieftainess at HA JIMISI advised the old couple to go to their own house to occupy it, now that the accused person's mother has vacated it. They also thought may be that time referred to by the bugle, that the accused's mother will vacate at her own sweat time has come. They were helped by some relative with a motor vehicle which conveyed their beds, table and chairs and 100 litres empty drum to their house. They were carrying on their persons small items. The old man carried one bench, a hammer wrapped up in a cloth. He also had an umbrella stick in his hand. He used it as a walking stick. The old lady was carrying a big pot, or bowl on her head. It contained smaller items inside it. The old couple was walking back to their house having fetched these items from the shelter they occupied at the chieftainess's premises. The accused persons together with their sister came to the village of HA JIMISI on the 10th April, 2002. They saw the goods already placed in the house of the old couple. They went looking for the old couple in that village of HA JIMISI.
CROWN CASE
On the 10th April, 2002, the two accused together with their sister arrived at the shelter in the neighbourhood of MR. and MRS. NKETSI'S home. MR and MRS NKETSI is the old couple consisting of the sixty-seven years old man and his old lady the deceased in this matter, who was sixty-two years old.
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This shelter was operating as a small shop. A certain man - Pw5 stopped at that shop to buy some cigarettes. While this man was there, the two accused persons together with their sister arrived there. They asked "U kae?" translated "where is he or she?" The reply was, "u sa fetile!" translated "He or she has passed!" The two accused and their sister proceeded on their way. They were following the road. The old couple was walking along the footpath - traveling to their house. They carried on them the items mentioned at paragraph 1. The accused and their sister intercepted and stopped them. A1 angrily, with a loud voice was heard ordering them to drop the goods they were carrying and forthwith to go and remove those that they have placed in their house already. Even before the old couple could respond to the order, Al assaulted the old man by hitting him with a stick which he already had in his possession. The old couple dumped the goods they were carrying and started to run for their lives. Al concentrated his attack on the old man who warded off the blows with the umbrella stick he had in is possession. He has been using it as a walking stick. Pw6 - the old man because of his age, ill health etc. needed a support when he walked. So he used the umbrella stick as such supports when he walked. So he used this umbrella stick as such support. The attack by Al upon the old man was fears and vicious. The old man was busy warding off the blows. He had no chance to run without exposing his back to danger.
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His wife - deceased had got away some distance when the accused persons' sister shouted "ea batluoang ke enoa" translated 'the one who is wanted is this one" - indicating the deceased.
A2 gave the deceased a chase. A1 relented his assault upon Pw6 - who begun to get away. A2 picked up a stone and threw it at the deceased - hitting her at the back of her head. The deceased fell. A2 who was following her in hot pursuant caught up with her. She rose up, but even before she straightened up she was already running away. A2 stabbed her at the back with a knife. He shook it while its blade was still buried in the deceased's body. The deceased kept on running. The accused 2 pulled out his knife but still pursuit the deceased who descended into the donga. A2 followed. While both A2 and the deceased had disappeared in the donga Pw5 peeped. He saw A2 near the deceased who had fallen facing down on the ground. A2 was wiping the blade of his knife on the grass. Pw5 came down. He tried to raise the deceased. She was too heavy. Pw1 arrive. Two together tried and succeeded to raise the deceased. She had sustained one deep open wound at the back of her head. She had five stab wounds at her back. More villagers and her husband arrived at the scene. They loaded her on the wheelbarrow to remove her from the donga to the road from where she was conveyed to the hospital. She sustained no further injuries on that way to the hospital. She was pronounced dead on arrival at the hospital.
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DEFENCE CASE
The accused claim that they were attacked first by the old couple. In the first instance the attack was verbal. The accused persons claim that they were asked the following question by the old couple; "le batla ho shoa joaloka 'ma lona?" translated - "do you want to die just like your mother?" The accused took this question as a threat to their lives. Why? How? The accused claim that the old lady - now deceased, bewitched their mother who at her death bed told the accused's sister that "ntlo ea mo qeta!" translated " the house has just finished me!". Since the accused persons' mother was occupying the old couple's home in deviance of the judgments against her occupation they regard the old lady-deceased as the one responsible for forcing her to vacate their house by witchcraft. Their mother according to them made them belief that she was dying because of that house. They felt deceased could do the same to them. When they went to the mortuary to collect corpse of their mother it was found covered in blood. Their mother had no injuries from which the blood could have come. They, therefore, concluded that it is the deceased's witchcraft. How? There is no evidence that the blood was there in the first place. We only have their word for it. Was it human blood. There is no evidence. Was it their mother's blood? There is no evidence. How is that bleeding of their mother's corpse connected with the alleged witch or witchcraft?
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Even if the accused person's believed this "mambo jumbo" how then did the alleged witchcraft pose an immediate danger to the lives - warranting the taking of another person's life?
Then the defence changes. They now claim that the old couple physically attacked them first. The old man is alleged to have assaulted A1 with an iron rod. The old lady is alleged to have retrieved a knife from her luggage and rushed to A2 intending to stab him. She threw that knife at him, A2 claims, he picked it and went to stab her many times at the back in self-defence. What danger did the old lady's back pose to A2's life?
4- ESTABLISHED FACTS:-
The nature of the defence - private defence is the admission by the accused that they unlawfully and intentionally killed the deceased
but justifiably. All the facts alleged in the crown case we may say they are admitted. It is not in dispute that the deceased's death was due to head injury and haemopneuma thorax. The deceased has sustained five(5) stab wounds at her back. Those wounds were deep enough to cause pneumo thorax. A2 told the court that he stabbed the deceased so many times at her back he could not remember. The deceased had sustained a fracture of the occipital lobe - causing the deep depressed wound of about 4-6 centimetres.
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A2 said he picked up the stone which he threw at the deceased -hitting her at the back of her head. Pw4, Pw5 also saw A2 pick up that stone and threw it at the deceased who fell down after she was hit. The deceased was picked up from the donga where she fell for the last time and was found therein with A2 who was wiping off the blood from the blade of his knife on the grass. She was found to have sustained many wounds at the back of her body. It was from these injuries that the deceased died.
PRIVATE – DEFENCE
Generally speaking the person's actions, though unlawful, may be justified when he acted against an unlawful attack - already commenced or imminent upon his or her rights, [see private defence definition by C R SNYMAN CRIMINAL LAW, THIRD EDITION - PAGE 97.] It is available to a person who is accused of committing a crime and who wants to be excused from liability on the ground that he or she was forced to commit the alleged crime because was defending his or her legal right.
According to the accused persons, they were verbally attacked when they were asked if they want to die like their mother. That utterance or question put fear in their minds that the utterer is going to kill them by means of witchcraft. The two accused believed she killed their mother by means of her witchcraft.
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Their grounds for this belief is that their mother died and on her death bed she told their sister who told the mourners at her funeral that she died because of the old couple's house. She said "ntlo e mo qetile!" translated "she died because of the house!" or the house killed her. What a bull! There is no such a thing as witchcraft. The accused themselves heard from someone alleging that their late mother alleged that she is dying because she is bewitched. True she was a squatter who did not just cause inconvenience by her illegal occupation of the old couple's house, but actually caused them suffering some hardship and homelessness. She was killed by her guilt. She was not at peace in her conscience by her cruel behaviour.
Even if I accept that the accused believe in witchcraft there is no evidence that it posed immediate danger to their lives to warrant the killing of another person.
There is no evidence that by being asked if they want to die like their mother, their own lives were immediately in danger. Private defence cannot therefore be available to them unless there is evidence that their live were in immediate danger. The allegation that they were physically attacked first by the old couple, has also turned out to be false. There is no evidence to show this court that the two accused were at any stage attacked by the old couple.
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Evidence of the eye-witnesses clearly shows the two accused as the aggressors. Together with their sister, they intercepted and stopped the old couple without being provoked in anyway by them. They started the unlawful attack upon the deceased and her husband without provocation. There was no prior or imminent attack directed at the accused's interests. R V MOGOHLWANE 1982 (2) SA 587. The evidence of the people who witnessed the assault by the accused upon the old couple, only shows that the deceased and her husband ran away. By running away they posed no threat of danger to anyone. R V ZIKALALA 1953(2) SA 568 at 571. They only exposed themselves to the danger which resulted in the loss of the deceased's life. Private defence cannot be available to an aggressor who at all the material time had no attack directed at him or her. There is no evidence that the old lady even attempted to get a weapon. A2 was seen producing the knife himself as he caught up with the deceased after pursuing her. It is not true that she retrieved a knife from her luggage. There is no evidence that her husband - Pw6 ever assaulted anyone of the accused. In his evidence Pw6 told the court that the assault upon him was so fears and vicious, he had no chance. He was even accused of running away from the fight - leaving his wife behind and therefore he could not tell what happened to her.
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Where there was no unlawful attack - commenced or immanent, there can be no private defence. There was no time during that attack when the deceased faced her attack. The fact that she received all the injuries with her back, is a strong support of the evidence of eye-witnesses who testified that she was running away.
6. COMMON PURPOSE
Common purpose arises were two or more persons combine their effort in an undertaking for an illegal purpose each one of them is liable for anything done by the other or others, in the furtherance of their objective R V GARNSWORTHY 1923 WLD 1. It is the evidence of the accused persons that the house from which they demanded the old couple to remove their property was their mothers. According to A1 they wanted the old couple to vacate it because he wanted to move in to re-occupy it. It is therefore the objective of all the three - the two accused and their sister to force the old couple to vacate their home. They embarked on an unlawful assault of the old couple.
The Three - the two accused and their sister were traveling together. They arrived at the shelter that operated as a shop in that village, together. They must have been aware of the weapons which each one had in his or her possession. They must
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have been aware that to engage the old couple in a fight, their weapons will be used. A1 and his sister must have known that A2 has a knife in his possession. A2 himself denies that he had a knife in his possession. He claims that the old lady attacked her with that knife. He dispossessed her and used the same to stab her five (5) times in self defence. This I have rejected. The evidence shows that it was A2 who chased after the old lady who had done nothing except to try to get away. It was their sister who proclaimed, "the one who is wanted is this one!" - indicating the deceased. This statement indicates without a doubt that there was a prior arrangement or agreement between them to attack the deceased more especially because the accused blame her for the death of their mother. A2 was observed producing the knife with which he stabbed the deceased.
They must have been all aware that the use of a stick or a knife is likely to result in a serious injury or death of another person. With the full knowledge of the likely consequences, the accused nevertheless went ahead with their endeavour to attack and assault the old couple. S V SMITH 1984 1 SA 583(A) while all the three - the two accused and their sister were engaged together in the assault of the old couple - deceased and her husband, Pw6, one of them caused the injuries from which the deceased died. From their sister's call "ea batluoang ke enoa" indicating the deceased who was trying to escape.
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It becomes apparent that there was prior arrangement to assault the deceased. When anyone of the three does an act in the furtherance of the pre-determined objective, all the three are liable and responsible in exactly the same way and to the same extent as the
actual perpetrator. Both accused are found guilty of committing the crime of murder with a direct intention to kill.
7. EXTINUATION
You have been found guilty of murder with direct intent to kill. By hitting the deceased with a stone at her back as she run away cannot be regarded as acting in defence of any right. She fell when she was on the ground she posed no danger to anyone. Rushing to catch up with her while she had fallen or as she rose up, is a clear demonstration of intent to kill or cause grievous bodily harm. Deceased was stabbed at her back with a knife which the accused shook while its blase was still buried inside the body of the deceased. Again that behaviour by the accused clearly demonstrate his intention to kill. Further and more serious stab wounds were caused to the deceased by the accused. They were four in number. Each one by itself fatal. I rejected the suggestion that the accused when causing so many fetal wounds within a few moment of each other, must have been mad and therefore out of control. It is the accused's clear determination to ensure that he put an end to the deceased's life.
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Weird as your belief in witchcraft is it seem to me to have been a driving force urging you to act in the manner you did. The accused persons' crime is heinous indeed. S V PETRUS 1969 4 SA 85 (A). The belief that the deceased possessed powers of witchcraft by means of which she could kill the accused has failed as a defence.
At this stage I do accept that weird belief in witchcraft and powers commanded there under, can operate as an extenuating circumstances.
The belief that the accused killed a witch who had powers to harm them is not a defence but a factor which can be considered to have the effect of reducing the severity of the appropriate penalty in their case. Therefore because this court has found that there is exetenuation circumstances the accused will not face the ultimate penalty provided under the law for conviction of murder with direct intent to kill.
87 SENTENCE
I have taken into account when assessing an appropriate sentence all those circumstances and factors which your counsel has placed before this court. As for you, the two accused you have shown nor expressed no remorse for your crime. You appear to have planned, designed and executed your plan to take away the deceased's life with some precision.
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As you searched for the deceased in the village - making inquiries about her whereabouts you were already armed with deadly weapons. As the deceased ran away, your sister called out, 'the one who is wanted is this one!" indicating the deceased, you quickly attacked her. The attach against her husband abrumptly relented. This is a clear indication that there must have been prior arrangement as to who of the two is to be attacked.
Your mother disrespected the law. She defied court judgment and orders with impunity. She took advantage of the old couple's lack of power to take the law into their own hand even if they wished. They respected the law and hoped that eventually the rule of law will prevail. You were on the other hand certain that you are the law unto yourselves and that with your physical powers the law cannot touch you. You must learn that the law protects both the weak and the strong. You might hang on to 18th century beliefs on witchcraft, but like the survival of the fittest, is a long ago concept which has no room in the 21st century. You have to learn to respect most of all and in the first place yourselves. You have to learn to respect yourselves. Once you respect yourselves you will learn to respect other people and their rights. The old couple, as senior citizens commanded more respect from you. If you were properly brought up BASOTHO children you would not intercept an adult.
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You would not stop such an elderly person on her way rudely. Attacking an elderly person is out of question for a well brought up and cultured MOSOTHO child.
SENTENCES : Accused 1 = 10 Years Imprisonment
Accused 2 = 15 Years Imprisonment
The two assessors agree with the fact finding in this case.
K.J. Guni
Judge.
ASSESSORS : Mr. Sesioana
Mr. Matete
FOR CROWN : Ms. Mofilikoane
FOR DEFENCE : Ms. Mahase & Mr. Nt'sene
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