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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1. 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.

4

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.

2. 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.

5

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.

6

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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3. 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?

8

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.

4. 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.

10

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.

11

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.

15

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.

16

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.

17

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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