HIGH COURT OF LESOTHO
by the Honourable Mr. Justice WCM Maqutu on the 19th May, 2004
accused is charged with the crime of murder.
"In that upon or about the 25th day of March 1995 and at or near
Ha Tumahole, Mathokoane in the district of Leribe, the said
did unlawfully and intentionally kill Zakaria Koloi Nkate."
second February 2004 accused appeared before me and pleaded not
guilty Crown Counsel said there were statements of preparatory
examination with which both parties were in agreement. Consequently
Crown Counsel wanted them to read into the record with the
this was done it became necessary for parties in terms of Section 273
(1) of the Criminal Procedure and Evidence Act 1981
to put on record
the agreed facts. It turned out that Crown Counsel was mistaken. All
that was agreed was the identity of the deceased
and the fact that
the stab wounds on deceased's body were inflicted by the accused. All
other facts were disputed including the
circumstances that surrounded
the fight between accused and deceased.
because necessary to hear witnesses, it turned out that they had not
been called, consequently the case was postponed to
the 4th up to the
7th May 2004.
5th May 2004 when the matter was heard, it was discovered that five
of the nine witnesses that gave evidence at the preparatory
examination had died. The deceased had died in March 1995 - nine
years ago. The case which should have been heard in 1995 was being
heard in May 2004. It goes without saying that memories of witnesses
could no more be as reliable as they might have been.
Mathews Motseki having been duly sworn told the court that he was
already in bed when he was called by Thandiwe Lebaea ( a girl)
to where a fight was supposed to be between Sello Sefume and her
brother. According to Pwl it was at night between 8 and
passing Matiase Sefume's cafe Pwl heard the voice of accused Lefii
Mositi. Accused seemed to be holding someone. Accused was
"How long have I been reprimanding you for talking about me?"
Accused repeated this four times. Pwl told the
court that he shouted
to the accused "Lefu, Lefu what is happening?" Accused did
realised that accused was alone when he was 12 paces from accused. It
was at that stage Pwl heard the voice of the deceased
- Zakaria Nkate
calling him - "Mr. Motseki is that you?" Deceased was lying
on the ground. Pwl asked deceased what was
wrong. Deceased said: "He
has finished me." Pwl took away deceased from the fence. Pwl
touched deceased and felt something
like blood on the deceased. He
sent a child to bring matches.
matches had been brought Pwl found there was a pool of blood on the
ground. Deceased was no more bleeding. Pwl was helped by
a boy to
take deceased to Maponts'o Lenkoe's home. Pwl sent a message to the
chief and after some time both the deceased's father
accused's father came. By then the deceased had died.
Cross-examination Pwl revealed that both accused and the deceased
were his relatives. Pwl showed that he did not know what
before he came. Accused's Counsel put the accused's story to him
which Pwl could neither deny or confirm. When Counsel
put to Pwl that
Pwl never found accused near where deceased was lying - Pwl stuck to
Mr. Motsamai the assessor, Pwl confirmed that when he lit a match the
blood had begun to coagulate and that the deceased
was no more
Mositi Pw2 was the second Crown witness. Pw2 is the paternal uncle of
accused, he is also related to the deceased. Pw2 who
was a chief told
the court that accused told him he had stabbed deceased with a knife
that belonged to the deceased. He had done
so in self defence. When
accused came before Pw2, it was between 8 and 9 p.m.
the court that accused had also told Pw2 that accused had said his
uncle the deceased had found him - with a woman called
accused had said deceased said he had told the accused that one day
he would catch accused and then they fought. Accused
had showed Pw2
no injuries that had begun inflicted by the deceased - if the memory
of Pw2 does not fail. Accused had handed a
white Okapi knife which
accused said belonged to the deceased to Pw2.
Cross-examination, Pw2 was not in a position to deny that accused had
shown Pw2 a tear in accused's lumber jacket caused by
knife as this happened a long time ago.
Sefume was sent by Pw2 the chief - to take the accused to the police
on the 26th March 2004. He had also handed the white
Okapi knife that
accused had used to the police.
Crown witness was Sergeant Habofanoe Mopeli Pw 4 who was the
investigator of the case. His evidence was that he received
together with the white Okapi knife that the accused had from
information received used on the deceased. Pw4 then went to collect
the deceased's body after charging the accused with murder.
Deceased's body had three wounds at the back - between the shoulders
and in the kidney region.
Cross-examination Pw4 said there was a wound on the right side of the
chest, two wounds between the shoulders at the back.
That made four
wounds in all. Accused never said his lumber jacket was torn.
in his defence told the court that he had been that afternoon at a
feast where beer was made for ancestors. This was at
place. He left with a woman called Ntsamaeeng on the way home. He had
no love affair with that woman, but deceased
was her lover. It was
between 7 and 8 pm and there was a bit of light.
way they met deceased. Deceased said to Ntsamaeeng "What are you
talking with that man?" Ntsamaeeng replied "Nothing,
our family servant." Accused says he left deceased with that
woman - Ntsamaeeng and went on. He was not aware that deceased
follow him. When deceased got to him he asked "where is the
prostitute you were going with?" Accused said at that
was 80 to 100 metres from where he had left deceased with Ntsamaeeng.
no friction between him (the accused) and the deceased. When deceased
asked the above-mentioned question, deceased had
accused's clothes at the back of the neck. Accused put his hand
inside the pocket and said "I told you I shall
Accused said to deceased:
"Do you want to kill me like the person you stabbed with a knife
said: "Yes, I am now stabbing you, and I want to kill you."
Accused told the court that as deceased was in the
habit of killing
people with a knife, he tried to take a knife from the deceased. They
struggled for the knife until it fell to
told the court that he tried to free himself from the deceased and
reach for the knife. Deceased got hold of the hand of
that had got hold the knife. They struggled for possession of the
knife. Before the knife fell, it had not injured
the deceased. It was
during the struggle while deceased was pushing the accused's hand
that was holding the knife towards acccused's
body that deceased was
stabbed on chest with the knife above the breast. Accused had been
trying to move the knife away from accused's
own body when deceased
received the stab wound. It was not his intention to stab the
intention was ultimately to take knife and run away with it. Accused
told the court he could not run away with the knife
was holding him. Accused said he was scarred because deceased has
said he was killing him. He could not recall
how long they struggled.
Before parting with deceased accused said he had stabbed deceased in
the kidney area.
had been on accused left side. Accused said he inflicted three wounds
on the deceased. The third one was at the back on
the left side.
Accused told the court he was scarred and confused because of the
actions of the deceased on him (the accused.)
told the court that he was moderately drunk, that is why he can
recall the events of that day. Deceased was also drunk,
that is why
he approached him aggressively. Accused told the court he had no
knife, he stabbed deceased with deceased's own knife.
After that he
rushed to the chief to report himself after stabbing the deceased.
Cross-examination accused said he was born in 1963. He was the same
age as the deceased i.e. between 34 or 36 years old. Accused
is semi-literate. Deceased was his paternal uncle. Deceased had no
reason to kill him. Accused had asked accused if he
wanted to kill
him because he had taken out a knife. Accused had left the deceased
alive when he went to report himself to the
in cross-examination reiterated that Pwl never found him in the
vicinity of where the deceased died. Accused had never quarreled
Pwl. Accused said he saw the three wounds he inflicted on the
deceased, but he had not had the time to check the number of
wounds because he never saw the wounds.
of the accused further revealed that deceased was behind accused
holding the knife. Deceased's second wound was
at the back below the
shoulder blade towards the front. Deceased was stronger although
their height was the same. The wound on
the chest weakened the
deceased and it was the first one. When accused was about to run
away, deceased was holding him. Accused
and deceased struggled over
the knife twice. The first time deceased had possession of the knife.
The second occasion was when
the knife was in the accused's hand,
that is when deceased suffered the
wound. After that accused was able to inflict the second wound
with2Xout much resistance.
by his Counsel accused said he did not use maximum force when he
stabbed the deceased, he used minimum force. He had
not made his hand
firm. He did not use his hand hard on the deceased. Accused said he
was able to free himself from the deceased
because of the last wound
on the kidney which was the last wound he inflicted.
the court accused said the deceased produced the knife before he came
in front of him. There was moonlight. Accused said
he saw the
deceased's hand go into his pocket. It should be noted that Pwl said
it was dark and he had to find matches to light
in order to see.
postmortem examination report was handed in by consent and marked
exhibit "A". The cause of death was haemo pneurno
the left side. It showed deceased had a punctured stabbed wound on
the left upper chest anteriorly and another wound
posteriorly on the
left posterior chest. The last one was on the left lumbar region.
We do not
accept the evidence of Pwl. The blood could not coagulated if he came
as early towards the end of the fight between accused
and deceased as
he claimed. He must have come much later. In any event it is not
clear why Pwl did not get to the other fight for
which he had been
woken up. The only thing that we accept is that it was dark.
It is not
disputed that the accused caused the injuries on the deceased. The
accused says they were inflicted accidentally in a
possession of the deceased's knife with which deceased was trying to
kill him. Accused is not saying in a straight
forward manner that he
killed deceased in self defence.
has also to decide whether indeed the knife that the accused used to
kill deceased did in fact belong to the deceased.
Accused is the only
one who knows the truth, there is no other direct evidence to
contradict the accused. The accused's evidence
to be believed or to
create a reasonable doubt has only to be possibly true. Accused has
no onus to prove his innocence. Accused
should not be found guilty
merely because he is a liar. Indeed it is not unusual to find truth
and lies all mixed up in a case.
Where there is any reasonable doubt
- in our law, the accused gets the benefit of such a doubt. Yet
accused's lies cannot be ignored
because of the complexion they might
give to the rest of the evidence and the case as a whole.
the accused in his defence is not firmly claiming self-defence, the
sum total of what he is saying amounts to self-defence.
in Criminal Law and Procedure Through Cases at page 235 says
"self-defence envisages that a person who kills
had little or no
choice... Men faced in moments of crisis with a choice of
alternatives are not to be judged as if they had both
the time and
opportunity to weigh the 'pro and cons'. ... The onus of negativing
self-defence in a Criminal case is on the Crown
- as M.P. Mofokeng in
Criminal Law and Procedure Through Cases at page 260 has correctly
Monyane & another v Rex 1985 - 90 LLR182 at 184 Peete AJ (as he
then was) was dealing with a case in which the accused
killed the deceased who was trying to produce a pistol or a knife. In
that case they were contradicted by two witnesses.
In this case there
is no other witness because there was nobody else present. What the
Monyane case demonstrates however, is that
it is very common for
accused people to falsely claim they were defending themselves when
they killed the deceased. If what the
accused claim is reasonably
true then the court has to give them the benefit of the doubt.
accused approach was rather that he could only escape liability if he
could show he could not run away in the situation he found
in. His wish was to run away or run with the knife or put it beyond
the decased's reach. That is not a realistic approach.
Holmes AJA in
R v Patel 1959 (1) SA 121 at 123D said "the court must beware of
being an arm - chair critic, and must take
into account the
exigencies of the occasion." If the court from the facts finds a
probability that the accused had to defend
himself then it has to
accept that the accused is innocent. All that is required is his life
being imminently threatened and that
he reasonably believed he might
be killed. Running away, if indeed his evidence is true, would be a
speculative arm - chair option
in such circumstances.
case we have to go through the evidence with care. The accused says
his mind was clear although he was moderately drunk.
His story is
that deceased took exception to the fact that accused was with
deceased lady lover Ntsamaeeng at night or at dusk.
That is probable.
Accused left deceased with Ntsamaeeng.
had not walked 100 metres when deceased who must have been following
him got to him and asked him where Ntsamaeeng was.
This was strange
because accused had left deceased with Ntsamaeeng. The chief Pw2 does
not back up the story. Pw2 says accused
told him deceased had said to
the accused (who was with Ntsamaeeng at that time) - that he would
one day catch him and they fought.
has potrayed the deceased as a killer who had killed some one in
Butha-Buthe. This was not put to the chief Pw2 who was
relative of both accused and deceased. Perhaps this killing of a
person was known to the accused - not to Pw2, which
is rather strange
because accused had said deceased is in the habit of killing people.
did not give a convincing explanation of how he saw the deceased who
was behind him produce a knife. Accused is not telling
this account of how the fight took place is improbable and full of
contradictions. It is strange that he could gently
stab the deceased
when he was fighting for his life. Accused admits causing injuries on
the deceased not stabbing deceased. If
deceased was of the same
height and was stronger than accused, the accused ought certainly to
have been desperate and consequently
accused would have been using
all the strength he had.
We do not
accept that the knife belonged to deceased. Indeed if deceased wanted
to kill accused, he could have killed accused easily
account is true that deceased caught accused from the back. He could
not have seen the deceased take out the knife from
Accused told the court that he saw the deceased's wounds but later
had to concede that was not correct. He could only
know the number of
wounds if he inflicted them,
the knife cut deceased by accident caup-2Xsed them 12Xduring the
struggle as his evidence discloses.
is that accused and deceased were of the same height and were both
young. Accused did not sustain any injury. Accused is
not saying in a
straight forward manner that he was defending himself from the
deceased when he stabbed the deceased with a knife.
He claims that
the knife wounded deceased by accident. All accused says he was doing
was to keep away the knife from injuring him
when it cut deceased
accidentally, inflicting three wounds. We are satisfied beyond
reasonable doubt that the accused's story is
has not made a case for a possible threat of injury or a possible
threat to his life. He has created a false story that
deceased was a
dangerous killer - if deceased was, accused would have sought support
for this from Pw2 who was his uncle and who
could not let him down,
and did not let him down in his evidence. No questions were put to
Pw2 about the deceased killing a man
totality of the evidence we believe the accused lied about how the
fight started. Furthermore he tried to foist the knife
deceased. He gave improbable evidence on how the fight started and
how he could have seen the knife in the dark. He claims
to have seen
accused take out an Okapi knife from the pocket. Accused contradicts
himself badly as to how he could have seen this.
We have no doubt
that the knife was from the accused himself from the analysis of
story of the tear of his lumber jacket is unsupported. Pw 2 does not
remember if the accused showed this to him, Pw4 the policeman
definitely says accused did not show it to him. Accused suffered no
injuries at all. He did not even wish to estimate how long
between him and deceased took place. We reject the accused story as
false beyond doubt. I accept the evidence of Pw2
that accused and
deceased fought over Mamonki or Ntsamaeeng because that is the report
accused gave to Pw2 after the incident.
Accused according to Pw2 had
said deceased had said to the accused he had told the accused that
one day he would catch him and
they fought. Accused was very drunk
according to Pw2. Accused says he was drunk but not too drunk to know
what he was doing.
drunk people both accused and deceased had short tempers and
unbalanced judgments. Consequently they fought over Ntsamaeeng
was the deceased's lover.
circumstances we find the accused not guilty of murder - but guilty
of culpable homicide because of the drunken fight that
Mamonki or Ntsamaeeng. We are satisfied that using a knife on the
deceased was excessive as the deceased was not
armed. We have no
doubt that accused is falsely saying the knife belonged to the
deceased to avoid liability.
guilty by Culpable Homicide.
hearing of a plea in mitigation and that accused was a first offender
-Accused is sentenced to 3 years imprisonment.
THE HIGH COURT
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