HIGH COURT OF LESOTHO
by the Honourable Mrs Justice A.M. Hlajoane on the 1st March, 2005.
accused appeared before me charged with the crime of murder. It being
alleged that upon or about the 9th day of March, 1993
and at or near
Ha Rakolo, in the district of Leribe, the said accused did unlawfully
and intentionally kill Malefetsane Rakuoane.
accused pleaded not guilty to the charge of murder, and Mrs Kotelo
for the defence conceded that the plea of not guilty was
accordance with her instructions. There had been a Preparatory
Examination (PE) held at the magistrate's Court where evidence
witnesses was led.
this Court, evidence of four (4) Crown witnesses was led. The defence
admitted evidence of the other four (4) Crown witnesses
at P.E. and
such admitted evidence was duly read into the recording machine to
form part of the record in this trial. The admitted
evidence was that
of P.W.6, 7, 8 and 9 at the P.E.
evidence of P.W.6 at the P.E., No.8133 Tpr Ramakau, was to the effect
that; he was a member of R.L.M.P stationed at Tlalinyane
He was on duty on the 9th March, 1993 and accused arrived around past
lunch. As the accused approached him he could
see that his clothes
were covered in blood. When he arrived, he told P.W.6 that he had
done something wrong and handed over to
him a knife.
asked him where the wrong was done and accused replied, 'Ha Ratsita'.
He handed over to him an okapi three (3) star knife
and said it was
the one. He gave him an explanation about the knife. P.W.6 examined
the knife and found it to be covered in blood
all over. The witness
seized the knife. The knife was handed in and labelled exhibit
followed the information he had received and approached
chief, and together visited the scene. When they got there the body
was found lying down near a field, and had sustained injuries.
stripped the body and found blood on it with several wounds.
according to P.W.6 had about eighteen open wounds. He showed that
some of them were so open that one's hand could go through
others were just open wounds. Most of the wounds were on the chest.
The body was then conveyed in Police vehicle to the
found an iron rod on the scene, and it was brought before Court. The
iron rod had been found next to the deceased with no
blood on it. It
was produced in Court and marked exhibit "2". P.W.6 had
told the Court that, other than the blood that
he saw on the
accused's clothing, accused had not sustained any injuries, nor did
accused inform him of any.
witness had shown exhibit "2" to the accused and accused
told him that it was his stick. P.W.6 then told the accused
deceased was late. He cautioned and charged him of murder.
P.E. Motoko Makara had told the Court that he resided at Ha Rakolo.
He knew the deceased in his lifetime. He was his
He was in hospital in March 1993 where he identified the body of the
deceased to the doctor who performed a post
mortem examination. The
deceased's name was Malefane Rakuoane.
of P.W.8 at P.E., Dr Seqhobane, showed that he was a Superintendent
at Leribe Hospital. He carried out a post mortem on
body on the 18th March, 1993. The body was identified by Motoko
Makara, P.W.7 above and another. He made written
notes of his
findings which showed multiple stab wounds. On the whole he found
(18) eighteen stab wounds.
wounds on the head, one on the left thigh, one on the left supra
clavicular and had gone through the heart, another on the
mammary side, also went through the heart and the rest on the chest.
The conclusion reached was that the deceased died due
to acute loss
of blood. The report was handed in and marked exhibit "A".
doctor showed, the injuries must have been caused by use of a sharp
instrument. He referred to exhibit "1", the knife,
indicated that it could cause wounds of a similar nature. He said the
degree of force employed was severe. He concluded by
showing that all
the wounds were very fatal, worst of all, those that went through the
Tshabalala, who was P.W.9 at the P.E. had shown that, he was a member
of R.L.M.P stationed at Leribe. He had received a report
Tlalinyane Police on the 9th March, 1993. He proceeded to that place
in Police van, where he was shown the body of a male
conveyed the body to Leribe mortuary, and the body sustained no
further injuries to the mortuary.
then called in 'Mathaele Rakuoaneas P.W.1 She told the Court that the
deceased was her husband, and they were still staying
deceased met his death. The deceased was suspecting that P.W.1 was in
love with the accused. Accused had shown that
the information came
from his relatives but had asked the witness not to confront such
relatives. The deceased repeated the same
information again, and
P.W.1 decided to call Nkala Rakuoane to her home as their relative to
come between them.
to P. W. 1 the deceased and the accused were friends as they belonged
to the same Political Party. They were in a habit
of visiting each
other presumable to discuss matters concerning their Party.
Deceased's brothers were present when P.W.1 had called
before Nkala, they denied ever saying that the accused had an affair
with P.W. 1. Before he left, Nkala asked the deceased
and his wife to
only after some few days of that meeting, if we can call it a
meeting, that the deceased confronted P. W. 1 that he had seen
woman in a red dress talking to a man on horseback and thought that
that woman was P.W.1. The deceased might have been angry
talked to his wife about this because, P.W.1 then said he even
reported the matter to the Chief. P.W.1 had responded by
she could not have been that woman in red as she had on that
particular day been at home for the whole day. Deceased
convinced and even said he had witnesses.
called the deceased before him to ask him. Deceased told the Chief
that some two boys were his witnesses who saw the woman.
told to come the next day and Nkala was also invited. The accused was
also present. The boys whom accused had said were
denied before the Chief that they ever saw P.W.1 with a man on
horseback. They said they had only seen a woman who
resolved the matter by asking the accused and the deceased to stop
visiting each other. The accused was plainly told that
was complaining about his wife as he suspected accused to be in love
with her. Though the accused denied the love
affair with deceased's
wife he nonetheless welcomed the suggestion of not visiting
day, P.W.1 left home in the morning for work in RSA as usual. She
would usually leave home at 5.00 a.m. and come back home
at 5.00 p.m.
It was after she had crossed the river coming to her home that she
met a mentally disturbed somebody talking about
a fight between the
accused and the deceased. When P.W. 1 arrived home she found no one
at home except her children who also were
talking about the same
rumour as the person she met after crossing the river.
witness showed that it was after about a month since the meeting
before the Chief concerning deceased's complaint and the accused
no longer visiting deceased's place. It would seem that the deceased
had bought some maize from the accused and the accused
had to come to
deceased's place and collect the empty bag. When accused arrived at
deceased's place, he found the deceased not
at home but only P.W.1.
Deceased had visited Ha Masupha and P.W. 1 asked the accused to wait
for the deceased. When deceased arrived,
he did give the bag to the
cross examination, the witness showed that the deceased did not have
any problems when he found the accused at his home when
home from Ha Masupha. When deceased arrived home, the
explained to him why he was at his place and even told him that P.W.1
had encouraged him to wait for him. The witness further
that she knew the accused well as they resided in the same village.
P. W. 1 said that she was not aware that the accused
had his right
leg amputated from the knee downwards, but had seen that accused was
limping. Accused had once worked in the mines,
but the witness was
not sure if the injury on accused's leg happened whilst he was still
working in the Mines.
Lebajoa Nketsi told the Court that he was semi-literate as he only
went up to standard 2 at school. He knew the accused well
stayed with him in the same village. It was during the third month in
1993 when he saw the accused and the deceased together.
looking after his cattle. They were about 150 to 200 metres away from
him when he saw them.
witness showed that he saw the accused grab the deceased, fell him
down, get on top of him and started stabbing him. He stabbed
times. The witness took it that the accused was using a knife, as he
witnessed how he was stabbing. The witness, a 27 years
old man, ran
to call his father. The witness saw the accused get of the deceased
as his father emerged from a distance. He had
shouted at his father
witness did not proceed to where the stabbing took place, instead
after calling his father he went back to his cattle. He saw
father help the deceased. According to this witness, his father was
the first person to get to the deceased. P.W.2 said after
got of the deceased, the deceased rose from the ground and sat for
sometime after which he fell back to the ground.
P.W.2's father used
some bandages which he got from women who had come to the scene. Many
people then gathered at the scene.
never approached the place where the deceased had fallen, maybe he
was scared. After rising from where the deceased had fallen,
accused went away to his home. Before the stabbing, the witness said
he had seen the accused and the deceased standing together
something like 5 minutes. During the stabbing the witness observed
that the accused was using.a knife. According to this witness
these happened at about 1.00 p.m.
his cross examination P.W.1 was asked to estimate the time he had
spent in the witness box, and he said it was difficult
An observation was then made that he was unable to estimate when in
fact he had been able to estimate time of the
events that took place
in 1993, almost ten years ago. He clarified in cross examination that
he came to the conclusion that accused
was using a knife in stabbing
deceased considering the way the accused was executing his act.
witness had earlier on shown that he was about 200m away from the
accused , as there was a donga in between them and the accused
the other side of that donga. There was also a rock near the village,
but was not between them. There were no trees between
them except for
some aloes inside the donga. P. W.2's cattle were behind him as he
was looking after them. They were coming after
him as he was still
to this witness, it was the accused who called the deceased by saying
"Malefetsane come here." The witness said,
engaged in some conversation for something like 5 minutes, but could
not hear what they were saying. He then saw the
accused get hold of
the deceased and fell him to the ground. P.W.2 said that before the
accused called the deceased, he had been
looking after his cattle.
They were facing each other as they talked.
witness was surprised to learn for the first time that the accused
has a wooden leg and that he was limping. This has been the
since 1993. He also learnt for the first time that the accused was
using an iron rod to assist him when walking. It was also
to him that accused's leg could not bend. During the stabbing the
that he observed the knife as it was shining.
going to call his father for help, P.W.2 pointed out that he did not
have to go and cross the donga but had to go back for
of about 250 metres. The witness's father was on a hillock digging
out some medicine. He had to come up the slope
though not a steep
slope when going to where P.W.2 was. His father who was not an old
man, took something like seven minutes to
get to the witness.
examination to the witness suggested that the accused's story was
that, as he was looking after his cattle on that day,
approached him from the direction of deceased's sister's house.
Deceased walked towards the accused and asked accused
as to what he
was saying. The exact words used by the deceased were, "you have
made my wife yours." To this P.W.2 replied
by showing that
things did not happen that way, but that he did not hear what accused
and deceased were saying to each other.
defence story was also going to be that, it was the deceased who
started manhandling the accused and even felled him down. That
the deceased who took out the knife and tried to stab the accused
with it, saying these words, "today I am going to
All these were denied by P.W.2.
knew the accused well but was not sure whether or not he was left
handed. P.W.2 insisted that from where he was standing,
clearly see what was happening at the scene.
had adjourned for purposes of going out on an inspection in loco. The
place was at Ha Ratsita at Ha Rakolo. The observations
were made in
the presence of the accused and his Counsel, the Crown and her
witness, P.W.2, Gentlemen Assessors, the Registrar,
observations were as follows:
- P.W.2 pointed out to us the place where he said the fight took
- He also showed us the direction from which the deceased came as he
approached the accused, which was the direction from his
place one 'Mapoloko Makara.
- The witness demonstrated to us as to how the accused and the
deceased stood as they were talking to each other. They were facing
- The accused on the other hand pointed out a different spot where
he was standing, 18 paces away from that pointed out by P.W.2. It was
at one Sekoato-Koato's maize field. And according
to the accused that
was the spot where the fight took place. He also pointed out the
place where his (accused) cattle were grazing
behind him, which was 4
paces away from where he was standing.
also showed us a spot, different from that shown by P.W.2, where he
(accused) said P.W.2 was standing. It was a place out
of view from
where the accused and the deceased were. It was a place behind a
hillock, 32 paces from that shown to us by P.W.2.
Accused also showed
us a field over which P.W.2's cattle were scattered.
- P.W.2 showed us the spot from where he called out his father, and
also the place where his father had been digging out medicine
- The direction taken by his father when he approached the scene. He
had gone passed a small plateaux on the other side to where
- The witness had left the spot where he had been standing to go and
drive away his cattle which had been trespassing in the field,
back to where he had been standing.
- Deceased's sister's place is near the place where the fight took
place. The yard had two gates on opposite sides.
- The direction which the accused followed after the fight to his
donga the witness had talked about which was in between where he was
standing and where the fight took place. There was a
dam lower down
cross examination continued, P.W.2 pointed out that the accused was
looking after his cattle at a maize field which was a
This was in March of that year. The witness denied that the accused
was in the company of a small boy who even took
the cattle for
drinking. Instead, P.W.2 showed that it was the accused himself who
took the cattle for drinking. The witness denied
also that the
deceased and some other 3 people had earlier on passed near where the
accused had been standing, taking his (deceased)
cattle to his
sister's yard. He said the deceased only drove his animals to the
showed that the deceased went to where the accused was
the accused had called him. P.W.2 did not hear deceased ask the
accused as to whether the accused still had his wife (deceased's)
his (accused's). He denied that it was the deceased who started
assaulting the accused with a whip. What P.W.2 observed was
accused holding the deceased and that he felled him down.
to P.W.2 deceased was older than the accused. P.W.2 was not aware
that the accused had a wooden leg. (At this juncture
demonstrated to the Court that he had a wooden leg from below the
knee by putting off the wooden part). Accused's story
would be that,
there was just no way he could have managed to fell the accused down
considering the incapacity he had. But P.W.2
continued to show that,
not only did accused fell the deceased down, he even pinned him down
with his knee.
denied that it was the deceased who first took out the knife, but
showed that it was the accused who took out his knife and
deceased with it. It was the deceased's life which was in danger as
the accused was the one on top with a knife in
his hand. He concluded
by saying that he did not hear the conversation between the accused
and the deceased, he only heard the
accused calling out the deceased
as he was shouting.
Mokuru Nketsi told the Court that both the accused and the deceased
lived with him in the same village, and were older than
is P.W.2's father. On the day in question, P.W.2 had shouted to him
that accused was killing a person. He rushed to
the scene and found
the accused on top of the deceased. He had pinned him to the ground.
As he came closer the accused ran away.
It was P.W.2 who raised an
alarm. He saw the deceased rise and sit down. He helped him by trying
to stop the bleeding using the
bandages from some women who had
rushed to the scene. He noticed several wounds on the deceased's
body, particularly on the chest.
He was the first person to come to
describing how the accused had pinned the deceased to the ground, P.
W.3 explained that, accused had his knee on deceased's belly.
deceased passed away before the Police came to the scene and P.W.3
covered him with a blanket. Police then came to the scene.
cross-examination, P.W.3 explained that P.W.2 was standing near a
plateaux as he witnessed the fight as there was nothing
his vision. He even told the Court that he could still see P.W.2 from
where he was digging his medicines. The witness
was quite aware that
the accused had a wooden leg but showed that nonetheless, accused
could still run. This witness and the accused
are related as
son is married to the daughter of accused's sister.
Malefetsane Jonathane as the Chief of the area, knew both accused and
deceased well as his subjects. Deceased had been before
him more than
five times with the same complaint of some love affair between the
accused and deceased's wife. Deceased was also
complaining that the
affair was making his life miserable, but accused and deceased's wife
were denying that there was anything
between them. According to this
witness, it was only a week after their last meeting over that issue
when deceased met his death.
After he had received the report he too
rushed to the scene and found the deceased covered in blood. People
had already gathered
there. It was the same witness who sent for the
police. He further explained that, he was not aware himself of any
between the accused and the deceased's wife.
examination revealed that the accused and the deceased were well
behaved for the many times that P.W.4 had called them
before him. The
two have been staying at the same village all the time as none of
them worked away from home. The deceased never
said he ever saw the
accused and his wife together in some suspicious or compromising
situation. Deceased was only saying that
the accused was visiting his
home. Though deceased's wife had said her husband and the accused
to the same political party, P.W.4 said that was not the case.
accused would go to deceased's place when deceased was there even in
his absence. According to P.W.4 deceased had always been
accused to stop visiting his place but that the accused would not
listen. According to this witness, the peculiar feature
deceased's wife was her tidiness. P.W.4 said the woman was the second
best in the whole village in tidiness.
close of the Prosecution's case, the accused chose to go into the
witness box to give his evidence. The accused after
told the Court that he lived at Ha Rakolo. That the relationship
between him, deceased and his wife was just a neighbourly
relationship, as people also belonging to the same Political Party,
witness was aware that the deceased suspected that he was in love
with his wife. He considered the suspicion to have been unfounded.
Accused used to visit the deceased's place when he was there at home,
but when he found him absent, he would go back home. The
for visiting the deceased was for discussing matters concerning their
party and strategising on ways and means of attracting
more people to
accused did not dispute that he was taken before the Chief to explain
about his relationship with deceased's wife. He only denied
was called before the Chief on so many occasions. He had stopped
visiting the deceased's place after the meeting before
to the accused he was going to water his animals on that fateful day.
He took his animals to the dam which we saw when
the Court had gone
out on inspection in loco. The deceased had been sitting at the home
of one Malefetsane Makara, looking after
his animals. The accused who
at that time had asked a small boy to drive the animals home, saw the
deceased leave the yard coming
said as the deceased was near him, he asked him (accused) as to what
he was saying. The reply from the accused was that
he was only
telling the small boy to drive the animals home. He then heard
deceased utter these words, "Oh, is it because
of this wife of
mine whom you have turned to be yours (called his mother's privates
parts), today is your last day, I am killing
deceased had a sjambok, accused saw him take out a knife and coming
even closer to him. Accused had an iron rod which he
used as his
supporting stick. The rod fell to the ground, but the accused was
afraid to pick it up because of the knife in deceased's
rushed at the deceased in trying to defend himself, grabbed the hand
which held the knife.
accused further told the Court that he was the first one to fall to
the ground, and this allowed the deceased to come and ride
like riding on a horse. He then said, deceased pinned him down with
his knee. They then struggled over the knife which ended
near where the accused had fallen. By that time the deceased was
still on top of the accused. The accused hurried to
get the knife and
started stabbing the deceased with it, and this he did whilst the
deceased was still on top of him.
pointed out that since he was scared, he stabbed randomly at the
deceased. He continued stabbing till he managed to free
under the deceased. He said he did not look at the deceased after he
had freed himself, but took the knife and went
away. He learned of
the deceased's death the following day. Accused admitted having used
the knife in stabbing the deceased. He
even surrendered himself
together with the knife to the Police.
expressed his state as being remorseful for what he did as it was his
first experience. He surrendered himself to Police
same day. Accused
did not deny evidence by P.W.2 that in their struggle with
deceased, he fell the deceased down, and that P.W.2 could see
everything that happened from where he was standing. He only disputed
the evidence that said he was the one who was on top of the deceased
as it was the other way round. He also did not believe the
P.W.3 that he saw him stabbing the deceased.
examination, the accused told the Court that he was struggling to
free himself from the deceased who had pinned him down.
him, he was the first one to fall to the ground, and as the deceased
remained standing, accused still held his wrist
with a knife.
asked to clarify this point of his falling, accused showed that they
both fell to the ground. He then said, the knife fell
hand after both of them had fallen. Deceased had fallen on top of
accused and the knife had fallen near accused's
face. The accused had
fallen on his right side and used his right hand to pick up the
being in possession of the knife the accused started using it to stab
the deceased violently and did not count the number
of times that he
struck at the deceased. Accused could not deny when he was told that
deceased had injuries on the chest and also
on the head. He explained
this by saying that he could not deny anything as he had lost his
senses. He could not deny that he was
responsible for all the wounds
the body of the deceased.
suggested to the accused that the injuries on the deceased person
only confirmed that whoever inflicted them was on top of
still insisted that he was under and not on top of the deceased. In
explaining how the deceased got stabbed on the
head, the accused
showed that deceased could have been stabbed as he was bending over
him. As for the wound on deceased's knee,
accused said it could have
been when the deceased had fallen over him as his knees were near
him. Accused took the blame for having
omitted to mention that the
deceased at some stage lowered his head towards him.
accused demonstrated how the deceased fell over him with one knee on
his thigh and the other on the waist, the left side of
his waist, as
accused had fallen on his right side. Accused's response was that he
never saw P.W.3 around, he only saw P.W.2 before
the fight started.
He denied that P.W.3 ever witnessed the fight as he did not see him
there, but said he did not bother to look
around as he concentrated
on the fight. He did not again look around him even after the fight
but rushed to the Police.
continued to show that he was nervous as the incident appeared bad to
him. He did not only stab once on the chest as the
overpowered him. Even after he had taken possession of the knife he
continued stabbing the deceased as he said he had lost
concluded by showing that as he was stabbing he had supported himself
with the right elbow and his shoulder.
being a murder case, the onus was on the Crown to prove the essential
elements of the crime of murder and also prove that it
accused who in fact committed the offence. The salient questions
being whether the killing of the deceased was intentional
unlawful and whether it was done by the accused.
at the evidence placed before this Court, could it be said that there
has been proof that death of the deceased was the
result of a
voluntary act of the accused? According to the accused, it was the
deceased who came to him asking the accused as to
what he was saying.
P.W.2 had also said that it was the deceased who approached or went
to the accused. But P.W.2 gave this approach
by the deceased a
qualification by saying that it was because the accused had called
evidence on behalf of the Crown we learned that it was the deceased
who had been complaining that the accused was inlove
wife. Taking it from there, who then could be asking another as to
what he was saying? Would it not be the accused asking
as to what he was saying, or would it be the deceased asking? The
accused had approached the chief for intervention
and members of
deceased's family were invited by the deceased's wife. In all those
meetings the accused denied any relations with
deceased's wife. Even
when giving evidence before this Court, the deceased's wife denied
that she had any affair with the accused.
the person who claimed to have seen the fight from the beginning. He
saw the deceased approach the accused though he could
not hear what
they were saying to each other. The Court even visited the place of
the alleged incident and saw that P.W.2 must
have seen from where he
showed he was standing as there were no obstacles that could have
obscured his view.
learned from this witness, P.W.2, that the deceased was the one who
approached the accused. This witness struck me as a truthful
in that aspect as he could clearly see from where he was standing.
The accused also said it was the deceased who approached
him. As to
how the fight started, it was the word of this witness against that
of the accused. But it had been established that
the deceased had
been complaining that the accused was in love with his wife.
have been possible that the accused could have started the fight by
attacking the deceased for accusing him of having an
affair with his
wife. It could also be the deceased attacking the accused for having
an affair with his wife. But what came out
in cross examination to
P.W.2 was that the deceased was the one who first insulted the
accused passing a remark that accused had
made his (deceased's) wife
his (accused). It was the deceased who had always been complaining
that the accused was having an affair
with his wife. He even falsely
fabricated stories concerning two boys whom he said had told him they
had seen his wife dressed
in red and in the company of a man on
horseback. The two boys when called before the chief denied ever
saying that but only remembered
having seen a woman cutting grass for
listened to the evidence in this case would be inclined to consider
the deceased as a jealous husband. The Court even had
to ask if there
was something that was peculiar with deceased's wife and was told
that she was the second most in tidiness in the
whole village of Ha
Rakolo. This came from the Chief.
accused did not deny that he was responsible for all the multiple
stab wounds on the deceased. His only contention was that
acting in self defence. The Crown had been saying the accused was
on top of the deceased as he inflicted the wounds. The accused on the
other side said it was the deceased who was on top.
report revealed that there were 18 wounds in all. Most injuries were
on the chest area, fourteen on the chest
area, three on the head and
one on the left thigh. There were some wounds which had gone through
the heart, and the deceased died
due to acute blood loss.
accused pleaded self defence, and for this to succeed there are a
number of issues to be considered. The Crown was saying the
was the one on top and the accused saying the deceased was on top.
P.W.2 and P.W.3 said these for the Crown and the defence
determine this issue, we have to look at the injuries sustained by
the deceased. Two of the Crown witnesses did see that it was
accused who was on top of the deceased and considering the number of
wounds that the deceased sustained on the chest, confirms
that it was
the accused who was on top. The accused was becoming evasive in some
crucial areas of his evidence. He had said in
his evidence that he
was the first one to fall to the ground allowing the deceased to come
and ride on him and that both struggled
over the knife which fell in
the process. But under cross examination he said they both fell to
the ground and the knife fell from
the deceased after they had both
defence contented that it could not have been possible for the
deceased to have sustained an injury on the left thigh if at
deceased was the one below. But I don't see how that could not be
possible because like one using a whip on a horse, there
be backwards movements of the hand whilst stabbing. There can also be
such movements in stabbing as possibly the one
below would be trying
to raise his knees in an effort of trying to free himself by pushing
the one on top away.
took it that the three wounds on the head must have been caused by
the accused as the deceased was moving his head from
side to side
with pain as he was being stabbed.
accused said, it was the deceased who had possession of the knife
from the beginning. That might have been so, but the deceased
caused any injury on the accused. At least if the deceased was on top
with a knife in his possession, he could have at least
kind of an injury on the accused. The accused, a disabled man with a
wooden leg amputated from a little below the knee.
The accused had
even said as he was stabbing he had supported himself with his right
elbow and shoulder. How then could he have
managed to have stabbed so
many wounds in that position, his story is not worthy of belief.
was told that the deceased was a little older than the accused. The
accused was asked to demonstrate and show to the Court
on his leg. He was able within seconds to throw the wooden leg on the
floor and immediately fitted it back. He was
very active and fast in
those movements. Which portrayed to the Court a person who could not
be hampered in his movements by his
deceased out of jealousy might have been the aggressor, but when the
accused had managed to have the knife from him and sat
on top of him,
he was no longer the one in danger but the deceased. The deceased
could not have all the time lowered his chest
and head to the accused
to allow him stab him. The story of the accused could therefore not
be believed that he was the one below
I hold a
different view that this case is distinguishable from CRI/T/26/84 R v
REMAKETSE NTABE (unreported) cited by the defence
in that, the facts
in that case are more or less similar to the present. In both cases,
- the fight was fuelled by jealousy.
- The deceased was the aggressor,
- The deceased had the knife but the accused took it from him,
- The accused was on top of the deceased.
accused though wanted to say was acting in self defence, he could not
be said to have acted within the bounds of that defence.
might have acted in self defence but exceeded the bounds of that
defence, considering that he was the one who was on
considering also the number of wounds inflicted; see BELEME v R 1990
-94 LAC 607. He had already disarmed the deceased.
His only option
was to run for his safety or thow that knife away. Accused's story
has been the most improbable and unworthy of
belief. The accused
lacked the intention to kill, but was reckless in stabbing the
deceased as he did.
result the accused is found guilty of culpable homicide. My Assessor
agrees with my findings.
Defence addressed the Court in mitigation of sentence after the Court
had been informed by the Crown that the accused has no
previous convictions. The usual factors of being a bread winner with
children to look after. All those have been about
circumstances of the accused. Nothing was said about the deceased or
his family about maybe extending a helping hand
in the funeral
arrangements or assisting the deceased's family in anyway without
necessarily admitting any guilt or liability.
has nonetheless considered those mitigating factors in passing
Eight (8) years imprisonment, of which five years is suspended for a
period of three years on condition that accused is
not convicted of a
similar offence involving violence to another person during the
period of suspension.
Crown: Ms Maqutu (Ms Makoko)
Defence: Mrs Kotelo (Mr Moshoeshoe)
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