HIGH COURT OF LESOTHO
OF EDUCATION & TRAINING APPLICANT
UNIVERSITY OF LESOTHO
by the Honourable Acting Judge Mrs. Mahase On the 23rd October 2005.
an application in which the applicant approached this court seeking a
final interdict in the following terms:-
the 1st respondent be and is hereby interdicted and restrained from
paying out to any of the third to twenty second respondents;
inclusive (or anyone
may demand any payment covered by this order) any amount(s):-
budgeted for in the 1st respondent's 2004/2005 budget; and
budgeted for in any previous annual budget of the 1st respondent;
of suit jointly and severally against those respondents that oppose
or alternative relief.
founding papers herein were filed with this court on the (date not
clear from the copy of the court file). However, the date
the page for the index is the 13th April 2005.
applicant is the Minister of Education and Training.
respondents are, The National University of Lesotho which has been
cited as the first respondent.
second respondent is the Lesotho University Teachers and Researchers
Union, while the third to the twenty second respondents
members of the second respondent.
all of the third to twenty second respondents have been served with
founding papers herein and they have each signed their
affixed dates. These are presumably the dates on which they were
served with papers herein.
however no such signature nor dates written besides the names of the
3rd, and 17th respondent.
not really the issue because none of them disputes that they have
been served with papers herein.
also no copy of the return of service of the court process upon all
court, however, takes it that service was properly effected upon the
respondents and that is why there is no objection to same.
application is supported by the affidavit of the applicant who is
described in the papers herein as also being the Minister
Education and also in 1.2 (page 7) of his founding affidavit as the
Deputy Prime Minister of Lesotho.
applicant has submitted that among others, he is the Minister
responsible for education in Lesotho as well as the
contemplated by the National University of Lesotho Act, 1992.
further submitted at 1.4 of his founding affidavit that he has locus
standi to bring this application.
founding papers (Notice of Motion) have been issued out from the
office of the applicant's attorneys, Attorney General of Lesotho,
Office, Qhobosheaneng Government Complex, Griffith Hill, P. O. Box
applicant's attorney is written as being L. L. Thetsane.
Attorney General has however not specifically been cited as an
applicant or respondent herein.
founding papers are dated the 20th day of October, 2004.
application is opposed by the respondents who have also raised some
points in limine.
points touch on the issues which this court has extensively spelt out
above, and which form the basis of the 1st applicants
respondents notices to oppose appear on pages 60-61 (15th respondent)
and 62-63 (all other respondents).
numbers 2 to 22nd have appointed the offices of T. Maieane as the
address at which service and acceptance of all notices
in these proceedings will be made.
court notices that the 15th respondent has clearly set out and spelt
the points in limine he raises.
points raised by the 15th respondent will suffice for this court to
deal with this matter. In any case the issues raised herein
same and affect all parties equally.
at page 152 it is made clear that and at paragraph 2(a) the points
raised in limine as outlined in the answering affidavit
of the 15th
respondent as filed along herewith will be pursued at the hearing
hereof on behalf of all the respondents save the
respondent has not filed any notice indicating its intention to
oppose the matter. He should be taken to be ready to abide
court order which shall be issued herein.
LAW IN LIMINE
point raised in this regard is that the applicant has no locus standi
to institute these proceedings against the respondents
argue that the applicant has absolutely no business to do with their
contractual entitlements flowing from their contract
with the first
second leg of the argument is that the National University of Lesotho
Act 1992, does not confer locus standi on the applicant
to bring this
kind of application against any of the respondents.
argue further that it is the Attorney General who in law, and in
terms of the provisions of Section 98(2) © of the Constitution
of Lesotho has the responsibility to bring such an application should
there be violation of the National University of Lesotho
relevant sections of the constitution of Lesotho dealing with the
office of the Attorney General are as follows :-
98(1) of the Constitution of Lesotho provides that there shall be an
Attorney General whose office shall be an office in
98(2) © provides further that it shall be the duty of the
Attorney General to take necessary legal measures for the
and upholding of this Constitution and the other Laws of Lesotho.
therefore nowhere in the Constitution of Lesotho where the Minister
in his Majesty's Government is empowered to exercise
the functions of
the Attorney General.
also no statutory basis anywhere in the laws of this country/kingdom
empowering the applicant herein (nor any Government
exercise the powers of the Attorney General even in matters
pertaining to education and training.
reading of the above-named Provisions of the Constitution of Lesotho,
the applicant is not empowered by law to initiate
the respondents herein in his capacity as the Minister of Education
Attorney General is charged with the duties to among other things
exercise or perform any of the rights, prerogatives, privileges
functions of the state before courts and
Section 98(2) (e) of the Constitution of Lesotho.
Section 98 (4) provides that in the exercise of the functions vested
in him by Sub-Section (2)(a) and (b) and Section 69
Constitution of Lesotho, the Attorney General shall not be subject to
the direction or control of any other person or authority.
therefore is the general rule with no exceptions and it lives no room
for Mannouvre by any other person to perform or purport
the functions of the Attorney General.
applicant should have done, is to seek legal advise from the Attorney
General and then accordingly let the Attorney General
this proceedings on the applicant's behalf.
98(4) is a mandatory provision which has to be complied with to the
made the above observation, it is also worth noting that the Attorney
General has, according to Section 98(2) (b); the duty
ultimate authority over the Director of Public Prosecutions.
words, and contrary to popular belief, the Attorney General has some
authority over the Director of Public Prosecutions.
His functions and
powers are therefore not limited to his own office only.
to the law as it stands, it is the Attorney General who has to give
legal advice and institute proceedings on behalf of
its (government) employees /departments on official matters
regardless of the conduct or wrong complained about.
position otherwise, there would be no point in having established the
office of the Attorney General.
It is the
Attorney General who will decide who to join or who not to join in
the proceedings after he has considered any matter
placed before his
office by any representative of government and he is the only one who
will legally advise government as to what
next has to be done.
circumstances of this case, the Attorney General would have joined
the applicant herein in the proceedings.
court before which the proceedings have been instituted may wish, is
neither here nor there.
greatest respect to the applicant, the correct position is that an
application for joinder in matters relating directly
government Ministries, will be dealt with by the office of the
Attorney General. I say this because I realise that
the applicant has
repeated that ....... "if the court so wishes then the
application can be postponed to join the Attorney
paragraph 8.2 of the replying affidavit.
greatest respect, the correct position is that, should there be a
need for joining any party to the proceedings herein,
would have to be made by a party who wishes to join another party. It
is not for the court to do so. If the Attorney
General wishes to join
any other person to the proceedings, he can do so on his own or he
can apply to court to allow him to do
so. All that the court does is
to determine the issue after having heard arguments for and against
the application on that point.
has been made by applicant of The National University of Lesotho Act,
1992 ("the Act") (A copy this court has
is entitled - The
National University of Lesotho Order, No. 19 of 1992). He says that
this Act, in particular Section 38(a) empowers
him to bring this
application against the respondents herein. Indeed that may be so,
but that has to be done in consultation with
and together with the
denies that this application is frivolus and vexatious. He says that
being a Minister of Education and Training he is
endeavouring to prevent a Contravention of Section 38(a) of the
National University of Lesotho Act, 1992.
further that being a Minister in Government he is responsible for
administering the said National University of Lesotho
Act as he now
seeks to do.
correctly so, but with the greatest respect, the said Act does
nowhere remove the responsibility of the Attorney General
matters affecting government and government ministries directly. The
applicant is a Minister in the Ministry of Education
which is a government Ministry, and which by law has to be legally
advised by the office of the Attorney General,
whose duty is also to
iniate proceedings on behalf of government.
provisions of this Act (National University of Lesotho Act 1992) can
never override those of the Constitution of Lesotho.
court is of the view that the National University of Lesotho Order
(Act) 1992 falls under the definition, "Other Laws
It is an Act of Parliament.
98(2) © is clear as to who should take the necessary legal
measures for the protection and upholding of this Constitution
the other Laws of Lesotho.
position would be different if the applicant was not a government
Minister but was dealing with this application in his personal
capacity as an individual.
present case, the applicant is acting as he does in his official
capacity as a government Minister in charge over the Ministry
Education and Training. This is why this application should have been
instituted by the Attorney General, and not by the applicant
By consulting the office of the Attorney General the applicant will
still have done his duty as envisaged by the National
Lesotho Act 1992, thereby upholding the law and preventing the breach
of the said Section 38 (a) of the National
University of Lesotho Act
common Common Law Jurisdiction His Majesty in his government can sue
and be sued - (The Government Proceedings and Contracts
Act No. 4 of
1965). Section 3(2) of this Act clearly stipulated that:
"Save as may otherwise expressly be provided by law, action or
other proceedings by His Majesty in His Government of Lesotho
be instituted by and in the name of the Attorney General".
Minister of Education and Training is a holder of a portfolio under
the appointment by the king acting in accordance with the
the Prime Minister -(Constitution Act 89).
as applicant or respondent in application proceedings or as plaintiff
and defendant in action proceedings, a department
cannot sue or be sued without the Attorney General being cited. The
Attorney General is the principal Legal Advisor
and representative of
the Government and all its departments.
exclusion of the Attorney General in application proceedings such as
there may amount to a non-joinder and rightly so because
proceedings in which the Government of Lesotho or its departments is
suing or being sued, the Attorney General has a right
to be joined as
a plaintiff or defendant or as applicant or respondent as the case
Ministry of Government on its own has no locus standi to sue without
the Attorney General. This is a generally accepted practice
immemorial For the foregoing reasons, the above points raised in
limine are upheld.
court realises that this is a highly important case which has a
direct bearing on the proper running of The National University
Lesotho; and on the livelihood of its many employees. It is therefore
of particular importance that the issues raised herein
are dealt with
thoroughly for the smooth running of this highest institution in the
issues raised herein are by no means frivolus nor vexatious.
accordingly ordered that the applicant should properly consult with
the office of the Attorney General so that this case can
instituted or initiated by the Attorney General himself as the law so
requires. The applicant will surely be joined
herein as indeed his
Ministry has a direct interest in the matter.
awarded to the respondents in the ordinary scale. There is no
justification for awarding costs otherwise.
Mr. K. E.
Sello for Respondents
Moiloa for 1st Respondent
by the Honourable Acting Judge Mrs Mahase On the 18th October, 2005
accused is charged herein with having committed the crime of Murder
in that upon or about the 16th day of September 2002 and
at or near
Sekameng in the district of Mafeteng, the said accused did unlawfully
and intentionally kill Tieho Makau.
This is a
summary trial before this court. The accused was aged 19 years when
this incident allegedly occurred. He pleaded not guilty
documentary evidence herein was admitted and handed in by consent,
having first been read into the record, as part of evidence
admitted documentary evidence is the following:
report made and filed by one No.4730 Tpr. Lenake a member of the
Lesotho Mounted Police, stationed at Tsakholo Police Station.
is marked exhibit 'A'.
statement of one Makau Makau. He identified the corpse of the
deceased to the medical doctor before a post mortem was conducted
upon the corpse. This is marked exhibit 'B'.
statement of Mabafokeng Snyman - a witness who provided a vehicle
with which the deceased was conveyed to hospital. She accompanied
the deceased to hospital together with other people. This is marked
post-mortem report. It shows that death was due to "penetrating
left atrium cardiac wound with huge pericardial haemorrhage".
This is marked exhibit 'D'
crown then called three witnesses in order to proof its case against
the facts are as follows:
day in question the accused and the deceased who were cousins, had
been drinking beer together since the morning of the 16th
2002 until late afternoon. They left that place towards dusk when
they then went back home. They were at a village called
the deceased who had been buying the beer which he shared with the
there, some men who were unkown to the accused came and they drank
that beer with the accused and the deceased.
deceased took an offence to that and he (deceased) reprimanded the
accused for allowing those villagers to partake in their
later left that place and went back home, they quarrel about this
issue again. The deceased was blaming the accused for
of their beer by the said villagers.
unknown to the accused and the deceased, those village men had been
coming following after the accused and the deceased.
villagers were out to fight this duo. It is not clear why they wanted
to fight those two.
accused managed to run away and escaped, leaving the deceased behind
presumably with those men from Ha Lenonyane.
accused ran to the deceased's home where on arrival, he demanded a
knife so that he could go and help the deceased, who he thought
being attacked by those men from Ha Lenonyane.
accused went out of the deceased's house, armed with a knife, he met
the deceased outside. The deceased continued to blame
the accused for
what had occurred in the sheeben earlier.
deceased took/snatched the lebetlela stick of Pwl, his younger
brother and hit the accused with it.
hit with that stick, the knife which the accused had in his hand fell
down as the accused was rolling down following that
delivered upon him by the deceased. It is not clear where exactly the
accused was hit with that stick, neither is it
clear or not if he
sustained any injuries from that blow.
accused stood up and the deceased chased after him (accused).
Ultimately, the accused ran back into the deceased's house and
himself in there.
deceased tried in vain to burn his house in an effort to force the
accused to come out of it. He used a gas cylinder and opened
that house. The accused inhaled that gas.
failed to burn that house of his, the deceased left that place and
went away into the house of Pw2, a neighbour.
arrival in Pw2's house, the deceased sat behind the door. After the
deceased had left his house, Pwl called out to the accused
to get out
of that place so that he (accused) could get himself a place where he
accused left that house of the deceased, he too went to the house of
Pw2. But before the accused went there to Pw2's house,
he first went
to look for the knife which had been lost when he was hit with a
stick by the deceased.
it and he went into Pw2's house armed with it. On arrival in the
house of Pw2, the accused who found the deceased already
went straight to the deceased and fought him, stabbing him with a
knife on the chest area.
was in her kitchen with the deceased and one "Mamoletsane ran
away into the bedroom. They left the deceased and the
fight, the accused overpowered the deceased, felled him down, sat on
top of him and the accused stabbed the deceased with
an Okapi knife
on the chest repeatedly. Somebody raised an alarm and called for
help. Pwl ran to Pw2's place from where the alarm
arrival there, he (Pwl) found the accused sitting on top of the
deceased stabbing the deceased with a knife. He held the hand
accused to try and restrain him from stabbing the deceased further
but in vain. It was one Tsepo who ultimately came to
stop the fight. Very unfortunately, the deceased was seriously
injured and he died from those injuries on the way
nature and the extend of the wounds the deceased sustained in the
hands of the accused is clearly indicated in exhibit 'D',
already been indicated, death was due to penetrating left atrium,
cardiac wound with huge pericardial hemorrhage.
medical doctor who performed the post-mortem on the body of the
deceased has further remarked that the deceased had been assaulted
very severely, stabbed with knife on the chest.
(2) penetrating chest stab wounds on the left side of chest.
(1) penetrating chest stab wound on the right side of chest.
left atrium cardiac stab wound.
(1) wound, right shoulder and one (1) wound: Posterior right thigh.
of the said wounds which the deceased sustained from being stabbed
with a knife by the accused are six (6).
exception of those last mentioned in number (4), all of these wounds
are/were penetrating wounds. All, except one were
on the chest area.
Tseliso Makau's evidence is briefly that it was around 7:00 to 8:00
pm when the accused arrived and asked him
a knife. That the accused informed this witness that deceased was
being attacked by some boys from Ha Lenonyane village
(accused) was going to help the deceased.
when the accused met the deceased on the fore court and when the
accused stabbed the deceased with a knife on the thigh.
That was the
knife which had just been handed to accused by Pwl. The accused had
said to Pwl he was going to help the deceased
who he said was being
fought by the boys from Ha Lenonyane.
when the deceased chased after the accused. Also he saw that the
deceased was holding a lebetlela stick as he chased after
however his evidence that the deceased hit the accused with a stick.
witness also saw when the knife with which the accused had stabbed
the deceased was thrown near the aloe by the accused. He
testified that he saw when the deceased attempted to burn the house
in which the accused had locked himself. This house, it
remembered was for deceased's parents. It was his home.
saw the accused going to get the knife which he had earlier thrown
near the aloe and when accused went to the home of
Pw2, the deceased
was already in Pw2's home at that time.
heard an alarm raised, Pwl went to Pw2's house and on arrival
thereat, he found the accused sitting on top of the deceased
(accused) was stabbing the deceased with a knife around the chest
area. The deceased was lying down on his back as the accused
lying upon him stabbing him (deceased) with a knife on the chest
testified that he held the hands of the accused at his hands in order
to stop the accused from stabbing the deceased. Lastly
it is his
evidence that there was no other weapon found near where the deceased
was stabbed by the accused, except the knife with
which the accused
fatally stabbed the deceased.
evidence is corroborated by that of Pw2 ('Mamohanuoa Rantsatsi). Pw2
is the lady in whose house the accused stabbed the deceased
Pw2 is a neighbour to the deceased's mother. She and other ladies
were in her home when one 'Mathabo reported that she
did not know why
the children i.e. accused and the deceased were fighting.
the house of Pw2, went the deceased he sat down on the chair behind
the door. The deceased asked about the whereabouts
'Mathabo is the accused's mother. At that time, Pw2 and 'Mamoletsane
went into the kitchen while "Mathabo and
'Malijalo went into the
bedroom of her house.
It is her
Pw2 unchallenged evidence that the deceased was not holding any
weapon when he arrived in her house. It is this witness
who asked the
deceased what was going on between him and the accused. His
(deceased) response was that he would tell them about
that on the
It is her
further unchallenged evidence that as they were talking with the
deceased, the accused opened the door and went into her
the accused went straight to where the deceased was sitting and the
accused stabbed the deceased with a knife on the
ran away from the kitchen into the bedroom. She came out of the
bedroom later only to find that the deceased was lying
down on his
back. That the accused was sitting on top of the deceased, the
accused holding his knife but Pwl was then holding the
time one Tsepo came in to stop the fight. Her evidence corroborated
that of Pwl that the deceased and the accused went to
the home of
Pw2. The deceased having arrived thereat before the accused. That
when accused went into Pw2's house he had a knife
with him. That he
later sat on top of the deceased and stabbed the deceased with a
knife repeatedly around the chest. That the
deceased was not armed
with anything at that time that the accused stabbed him to death.
corroborates Pwl's testimony on the fact that the deceased had fallen
down on his back; that the accused was sitting over
the deceased as
he stabbed the deceased with a knife.
No 9061 Tpr. Ranyali testified that he is member of the Lesotho
Mounted Police Service, that he was stationed at Tsakholo
the day in question, the ll\9\02, Simon Khoele was handed in to him
while he was on duty. He was handed to him by the chiefs
the allegation of having killed one Tieho Makau.
cautioned the accused he asked for an explanation after which he gave
the accused the charge. That the brown okapi knife
was handed to him
by those who had escorted him
charge office. He kept it as an exhibit. It was handed to court as
seen and was marked exhibit 1. He also gave accused a
The stick with which the deceased allegedly assaulted the accused
earlier in their fight was handed to No 4730 Tpr.
Lenake whose report
was admitted as evidence and is marked exhibit A.
accused's defence is that of self defense. It is his story that he
and the deceased had a quarrel on their way back home over
that the accused had allowed some men to drink their beer; which beer
had been paid for by the deceased. He told the court
that as they
continued quarrelling on their way back home the said men suddenly
surfaced and the said men fought them (accused
and deceased). It is
not clear why these men decided to fight the two men who had allowed
them to share their beer.
as it may, the accused told this court that he managed to escaped
from those men leaving the deceased behind and went home.
back home, he (accused) asked for a knife and his intention was to go
back where the deceased was left with those people
so that he could
help the deceased.
Pwl who gave the accused a knife. However just when the accused left
to go to where he had left the deceased with those men
who he said
fought them; he met the deceased on
court. Pwl was with the accused and he (Pwl) was holding a lebetlela
stick in his hands.
to accused, when the deceased saw him, the deceased suddenly snatched
the stick from PW1 and hit him (accused) with it.
there the deceased chased after him (accused) until when accused
locked himself in the house. Evidence has already revealed
house was for the deceased's parents. It was the deceased's home.
It was at
this house where the accused told this court that the deceased
attempted to burn and kill him using a gas cylinder. This
sometime, when all was quite, the accused left the deceased's house
and went to the house of Pw2. Unknown to him, on arrival
found that the deceased was already in Pw2's house, seated behind the
It is the
accused's story that the deceased, who is alleged to have been
holding a stick and an Okapi knife, suddenly assaulted
with that stick, holding the knife with the other hand.
further says that at that time the deceased had blocked the door to
prevent the accused from escaping. That at that time
there was no one
in the house except him and the deceased.
he got hold of the deceased's knife and stabbed him (deceased) with
it haphazardly. That Pwl came in as he was stabbing
the deceased with
a knife. Pwl held his hands to stop him from further stabbing the
deceased with a knife. Accused does not say
in what position the
deceased was as he stabbed him with a knife. He said that the fight
stopped after Pwl, and one Tsepo came
to intervene and it was Pw2 who
had raised an alarm.
the accused told this court that he was drunk and had a black out,
but that he was defending himself.
been submitted on behalf of the accused by Mr. Tsenoli that the
inescapable conclusion on the totality of the evidence is
accused killed the deceased in self-defence.
has, on the other hand denied that the accused fatally stabbed the
deceased in self-defence.
It is its
argument that when the deceased went into the house of Pw2; having
left the accused at the house which he
had attempted to burn, the deceased was not in anyway armed with any
deceased did not tell the accused when he left for Pw2's house that
he was going to Pw2's house.
told the court that the deceased was not armed with a stick when he
went into Pw2's house. Thus the evidence of Pwl corroborates
Pw2 that the deceased was not armed with a stick nor a knife when he
arrived into her house.
also Pwl's story that before the accused went to Pw2's house, the
accused went to the place near the aloes to collect his
he had thrown thereat after he had earlier stabbed the deceased with
makes it clear that when the accused left for Pw2's house, he was
armed with a knife (an Okapi knife). This evidence of the
not been challenged nor denied by the defence in any way.
whose house the deceased went before deceased was fatally attacked by
the accused, has not indicated if there was anything
her from seeing the deceased very well when deceased went into her
house. She raised an alarm and one Tsepo went
to her home. It is
Tsepo who also helped
accused from further stabbing the deceased with a knife.
clear from the evidence outlined herein by the crown that when the
accused found the deceased sitting down behind the door
at and with
Pw2, the deceased was no longer in a fighting mood, neither was he
armed with any weapon. He was sitting there answering
which Pw2 was then putting to him with regard to this fight between
him and the accused.
deceased had just answered that he would tell this witness and others
about that on the following day.
It was at
that time that the accused opened the door, went into that house of
Pw2 and went straight to where the deceased was sitting
the deceased on the chest with a knife.
not until when Pwl later went into that house that the accused was
overcome by Pwl who held the hands of the accused thereby
him from further stabbing the helpless deceased with that knife.
the crown witnesses, who are eye witnesses saw any weapon upon the
deceased before and after he was fatally stabbed to death
accused. The said crown witnesses,
Pw2 denied that the deceased hit the accused with a stick when the
accused entered into the house of Pwl.
both agreed and corroborate each other that the deceased was
overpowered by the accused who sat upon the deceased and stabbed
deceased with a knife many times on the chest area.
has however, and for undisclosed reasons not called Tsepo and the
other ladies who were with Pw2 when this incident occurred.
as it may, this court has no reason to doubt the story of Pwl and
contents as contained in the post-mortem report, exhibit 'D' tally
with the evidence tendered herein by the crown that the deceased
of penetrating chest wounds as described therein.
court has no reason to doubt the medical doctor's observations and
findings, as to the cause of death and the findings thereat
the deceased was rendered helpless while lying down on his back as
the accused sat upon him and repeatedly stabbed him on
the chest area
with an Okapi knife.
evidence herein, the deceased did not at that time pose any danger to
the accused's life. Neither did the deceased utter
or do anything to
the accused endangering the life of the deceased.
unchallenged evidence tendered by the crown that when the deceased
arrived at the house of Pw2; he only asked about the
'Mathabo who is the accused's mother. This was before the accused
arrived at that house of Pw2. This is an innocent
question; it could
not provoke anybody.
no evidence before this court that the deceased had a chance to stand
up from where he was sitting in Pw2's house to block
the way thereby
making it impossible for accused to go out of that house to run away.
On the contrary, evidence is that the accused
did not give the
deceased any chance as he (accused) went straight to the deceased
where the deceased was sitting and he (accused)
then stabbed the
deceased with a knife on the chest area. The deceased ended up having
fallen down on his back. The accused sat
upon him and stabbed him
with a knife several times.
we were to belief the story of the accused that it was the deceased
who hit him first (accused) with a stick when the
accused went into
Pw2's house and that later he (accused) overpowered the deceased;
took away the knife with which the deceased
was allegedly stabbed,
then the accused, having disarmed the deceased had ample time to go
out of that house and avoid danger of
any kind against him. It is
common cause that he deceased had fallen down when the accused
fatally stabbed him (deceased) to death.
These factors and the fact
that the deceased was not blocking the door for the accused to
escape, offered a chance for the accused
to go out of that house of
Pw2 thereby avoiding the occurrence of this unfortunate incident.
the accused continued to sit over the helpless, unarmed deceased and
stabbed him with a knife a number of times on the most
part of one's body, the chest area thereby causing the deceased's
foregoing reasons, this court has come to the conclusion that in the
circumstances of this case, and in particular on the
relation to this fight in the house of Pw2, there was no imminent
danger posed by the deceased against the accused
when the accused so
stabbed the deceased several times on the chest area with that Okapi
accused cannot raise self defence after the deceased had left him for
sometime to go to Pw2's house. It was the accused who
to the deceased where the deceased was sitting in Pw2's house and the
aggressor was then the accused. The accused
could as well have fled
into the bedroom together with Pw2 if indeed he was afraid and feared
the deceased as he wants this court
to belief so.
court has not been told where the accused was hit with a stick by the
deceased at that time, neither has it been told whether
or not the
accused sustained any injuries from that assault upon him by the
deceased when they were in Pw2's house. Of the admitted
forming part of evidence herein, there is no medical report showing
that following that assault upon him by the deceased,
sustained injuries and went for medical treatment; neither is there
any statement by the accused showing that subsequent
to that assault
upon him by the deceased, he sustained injuries.
contrary that stick which was allegedly used by the deceased upon the
accused was handed to the police by Pwl. This is because
Pwl's stick which the deceased had snatched from him (Pwl) at the
very beginning when the accused and deceased started
to fight. This
stick was never
the deceased to pw2's house in which the deceased was later stabbed
to death with a knife by the accused.
accused's story that the deceased hit him with a stick when accused
went into Pw2's house is not in anyway supported by evidence
before this court. All evidence points to only one thing; namely that
the deceased was not armed, and that he was sitting
on a chair behind
the door in Pw2's house when the accused suddenly entered into that
house; rushed to the deceased and stabbed
him with a knife on the
chest area. The accused did not end up there. He continued to
repeatedly stab the deceased with that knife
on the chest area even
after the deceased had fallen down.
be remembered that evidence is that even when Pwl and Tsepo went into
that house, the accused was found still sitting
on top of the
deceased stabbing him with a knife on the chest area. Accused's story
that he could not run away out of that house
because the deceased had
blocked the door is therefore not reasonably possibly true.
highly improbable that the deceased who had fallen down on his back,
with the accused sitting on top of him (deceased) and
with a knife repeatedly, could be a danger to the accused's life.
case of Rex V. Seabata Mokhachane CRI/T/13/04 (unreported) it was
said that, "for the accused to succeed in establishing
defence, there must be evidence adduced before court to show that the
accused's action was to repel an unlawful attack already
imminent upon his life or bodily integrity".
evidence adduced before this court points to the fact that when
accused found the deceased in Pw'2 house, the accused went straight
to where the deceased was sitting and stabbed the deceased with a
knife on the chest area. There is no other evidence to the contrary.
So the accused was the original aggressor as he fatally stabbed the
deceased to death.
action of the accused upon the deceased was witnessed by Pw2, the
owner of that house who was then having a conversation with
deceased when the accused went into her house uninvited and without
knocking before he went into it. Pw2 went into her bedroom
after she had witnessed this attack by the accused upon the deceased.
attack continued even after Pw2 had run into her bedroom. Pwl and
Tsepo later found the accused still sitting upon the already
seriously injured deceased. It was not until after Pwl held the hands
of the accused that he stopped inflicting further stab wounds
the deceased. It has
been indicted that there was no imminent attack by the deceased on
the accused when they were in the house of Pw2. The defence
self-defence can therefore not stand in this case.
assuming for arguments sake that the deceased attacked the accused
first and that the accused had believed that his life was
and that as a result, the deceased would kill him or seriously injure
his life, I have come to the conclusion that in
the circumstances of
this case, the accused exceeded the bounds of reasonable
self-defence. How does accused defend himself against
he deceased in
a situation where the accused had stabbed the deceased with a knife
on the chest area and where the accused had
rendered the deceased
helpless by further inflicting stab wounds when the accused had
cleared over powered the deceased?
Tsenoli for the accused argued that the accused was in a crisis when
he stabbed the deceased to death at that time. It has not
elaborated what that crisis was, but be that as it may, this court
rejects this argument as not being true. There was never
a time when
the accused was faced with a crisis when he went into Pw2's house and
found Pw2 and the deceased peacefully having
foregoing reasons, this court has come to conclusion that the accused
fatally stabbed the deceased to death with that knife
for no good
cause, and that the crown has discharged the onus placed upon it in a
case of this nature beyond a reasonable doubt.
that the four wounds upon the deceased were inflicted at the most
vulnerable part of one's body. The accused should have
once he inflicted such wounds upon the deceased at the said area,
death was likely to be caused. The accused did,
however not care
whether or not death would occur or follow from his assault upon the
helpless, defenceless deceased person.
accused clearly intended to kill the deceased as he eventually did.
He is accordingly found guilty of murder.
is enjoined by the provisions of Section 296 of the Criminal
Procedure and Evidence Act to say whether or not there are
submitted on behalf of the accused that there are indeed such
extenuating circumstances in existence herein. Counsel for
accused applied that the following factors should be regarded as
forming extenuating circumstances:-
age of the accused when he committed this crime. He was then 19
the murder was not premeditated. What happened was an accident.
both accused and the deceased were cousins and they had no bad blood
against each other.
on that fateful day, both accused and deceased had been drinking
beer from the early hours of the morning until very late
in the late
afternoon. As such they were both very intoxicated such that their
normal reasoning powers were diminished.
court has accordingly come to the conclusion that extenuating
circumstances which somehow diminishes the accused's blameworthiness
do exist; to wit lack of premeditation to commit this crime.
that they were close relatives and cousins as their mothers were
sisters. There was no bad blood between them.
the fact that they were both highly drunk or intoxicated from beer
drinking from the early hours of the morning until the
accused, it was submitted, is a first offender.
is one of the five children in his family, and is survived by his ill
mother, who has to attend periodic medical treatment
in the Republic
of South Africa.
is helping his mother to maintain and support his family by
time this unfortunate incident occurred, the accused's mother had
visited the deceased's mother together with the accused.
families of the accused and deceased are still in good terms and they
worked together in the funeral of the deceased.
accused has shown remorse. It was further submitted that being a
young man and close relative of the deceased, the fact
that he has
been convicted of having unlawfully killed the deceased is already a
torture upon the accused, who it was argued, will
live with this
unfortunate thing in his mind for ever. That this will always haunt
Tsenoli further submitted in mitigation on behalf of the accused that
the court should consider a lenient sentence and avoid
sentence. He agreed that due to his tender age, a custodial sentence
is not appropriate for the accused would go to
prison where instead
of reforming and be rehabilitated, he might meet older hardened
criminals who may influence him negatively.
applied that the court should consider imposing a sentence until the
course, this he said mindful of the fact that someone has lost life
court has carefully taken into account all which has been said by
counsel for the accused on behalf of the accused in mitigation
indeed a very sad situation that as indicated above, both accused and
the deceased were under the influence of beer and were
really nothing they fought for which could be said to be serious but
for their drunkenness.
accused had not premeditated to kill the deceased.
however, used a knife to inflict the said fatal wounds upon the
deceased as has already been explained herein.
is a highly lethal weapon which should never have been used upon any
however be remembered that the accused had initially thrown away that
knife but he suddenly remembered it and he went
to pick it up and
followed after the deceased armed with it. He ultimately fatally
stabbed the deceased with
it at the
time when the deceased was no longer fighting him (accused).
justice of this case demands that an appropriate sentence be imposed
so as to detter other people with the mind like that of
from committing actions such as this one.
law do not lightly view instances of this nature where a human being
is killed and his life taken away by the actions
of another human
being with impunity. Life is sacred and God given. It should be
valued and protected.
court accordingly imposes a sentence of seven (7) years imprisonment
upon the accused.
in question should be lawfully disposed off by the police.
: Ms. Mabea
Defence : Mr. Tsenoli
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