CRI/T/184/05

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

VS

MOROAHABUSOE
CHABELI

JUDGMENT

Delivered
by the Honourable Judge M. Mahase On the 29th October 2007

Criminal
law - Murder - Self-defence - what is - factors which must be
present.

The
accused appeared before this court charged with having committed the
crime of murder.

The
incident is alleged to have occurred upon or about the 25th day of
December 2001, at or near Taung - Pontseng in the district
of
Mohale's hoek.

1

Having
been postponed several times since the 23rd March 2006 for different
reasons and regarding none service and so none attendance
of crown
witnesses, the crown was finally able to secure the attendance of its
witnesses on the 22nd May 2007.

When the
charge was read to him the accused pleaded not guilty.

In order
to proof its case against the accused, the crown called four (4)
witnesses viz:-

Pwl -
Sikila Johannes Mokhothu Pw2 - John Chabeli Pw3 - Janefeke Ratolo Pw4
- Mamorena Tsoeu

The
following statements were admitted by both Counsel and so they were
read into the court record to form part of the evidence
herein:-

• Statement
  of one No.6793 D/Tpr Molelle - exhibit "A". This witness
  attended the scene of crime subsequently conveyed
  the body of the
  deceased to Mafeteng mortuary.

  
  

• 
  

2

- That of
No.9137 policewoman Rangoajane - exhibit "B" Having
cautioned the accused, she gave him a charge of murder on
the 26th
December 2001.

• That
  of No.8836 D/Tpr. Lethetsa - exhibit "C".

  
  

• 
  

She and
others accompanied the accused to the village of Ha Ratolo from where
the accused produced and handed to her the weapon
allegedly used to
commit the crime in question.

• That
  of Mr. Josiase Khabanyane - aged 72 years -exhibit "D".

  
  

• 
  

He is the
one who identified the body of the deceased to the medical doctor
before a post mortem was carried out upon it.

Lastly,

• The
  post mortem report - dated the 3rd January 2002 -Exhibit "E"
  (but the date stamp thereat is of the 4th January 2002)

  
  

• 
  

Briefly
the facts of this case are as follows:-

On the
day in question, - viz the 25th December 2001, the accused, the
deceased and several other men were moving

3

were
around their village and were engaging in beer drinking to celebrate
Christmas day.

The
accused in particular first went to the shop of one Molise where he
bought beer and cigarette. While he was there he was joined
by one
Mahlomola Chabeli in the drinking of beer which they bought and paid
for in turns.

The
deceased also later went thereat. On his arrival thereat, the
deceased twice asked the accused to buy him beer and each time
the
accused replied that he did not have money. At one stage while he
persisted with this request, the deceased called to accused
saying
hei man (hei monna) buy me beer. The accused took a strong exception
to that and he reprimanded the deceased to never refer
to him as man.

The
deceased then immediately apologized for having referred to the
accused in that fashion. Immediately after that altercation,
the
accused left that place of Molise having not finished drinking the
beer which he and Mahlomola were sharing prior to the arrival
of the
deceased at that place.

Having
left the shop of Molise, the accused went to another shop of Rampone
where beer was also being sold. Here music was being
played and many
people who had gathered thereat were dancing outside that shop as
music was being played.

4

The
accused went into that shop and continued to buy and drink beer. He
did not join those who were dancing to music outside that
shop.

Sometime
later, the deceased and Mahlomola also went to that shop of Rampone.
On their arrival thereat, Mahlomola once more joined
the accused and
continued to buy and drink beer together. The deceased remained
outside the shop for a while.

He later
went into the shop wherein the deceased and Mahlomola were sharing
beer. The deceased then drank that beer which was being
shared by the
deceased and Mahlomola. When he did so, the deceased had not been
invited by the accused nor Mahlomola to drink that
beer. Neither the
deceased nor Mahlomola objected to that.

Shortly
thereafter the deceased went out of that shop and joined a group of
people who were dancing.

At one
stage, the accused went outside that shop to obey the call of nature.
As he did so, he left Mahlomola and those other who
were in the shop
behind in that shop.

One must
mention that, as is common practice with Basotho men both the
deceased and the accused and many other men who were at Rampone's

shop, were carrying their sticks.

5

Shortly
after the accused had gone out to obey the call of nature, a fight
ensued between him and the deceased. None of those people
who were
there saw how this fight began. In other words nobody could say who
between the deceased and the accused was the original
aggressor.

Pwl - the
Sheeben owner and Pw4 - the saleslady thereat were alerted about this
fight between deceased and the accused by the noise
that was made by
that group of people which had been dancing to the music outside that
shop.

They both
immediately rushed outside to see what was happening. They saw that
the accused was belabouring the deceased with a stick
in full view of
that group of people which was outside and which had earlier been
dancing to the music.

When they
saw that assault by the accused upon the deceased, the deceased had
fallen down helpless and defenceless. The accused
was mercilessly
belabouring the deceased with a lebetlela stick. The deceased's stick
was seen by Pwl lying down next to where
the deceased had fallen
down. In other words the deceased was no longer holding his stick as
he was being so belaboured with a
stick by the accused.

6

He was
not making any attempt at all to ward off the blows which were
directed upon him by the accused; neither was he trying to
fight the
accused back.

Pwl, and
the rest of the other people inquired from the accused why he
(accused) was assaulting the deceased. This witness tried
to
intervene to stop the accused from further assaulting the deceased
but all in vain.

Crown
evidence is that in reply to Pwl's question as to why the accused was
belabouring the accused with a stick; the accused angrily
asked Pwl
to stay away and refrain from involving himself in the fight between
him and the deceased since Pwl did not know what
had transpired
between him and the deceased.

Having so
responded, the accused continued to belabour the helpless deceased
with a stick all over his body and in particular on
the head until
the deceased's skull was fractured and its contents were exposed.

In fact
it is the evidence of Pwl which is corroborated in this material
respect that the accused was very angry, was in a fighting
mood and
he threatened to assault anybody thereat who attempted to stop him
form further assaulting the deceased.

7

It is the
evidence of Pwl and that of the other crown witnesses who witnessed
and saw as this incident unfolded that the accused
was so furious and
aggressive towards all those who tried to intervene to stop this
callous assault upon the helpless, defenceless
deceased person that
the accused only stopped to so assault the deceased on his own.

It is the
crown evidence that the accused stopped belabouring the deceased with
a stick only when it was obvious that the deceased
was so seriously
injured and was unable to recover and when it was clear that deceased
could no longer stand up to fight back nor
could he run away from the
accused.

All the
crown witnesses who actually saw this assault being carried out upon
the deceased by the accused corroborate each other's
evidence that
the accused concentrated his blows upon the head region of the
deceased's body while the deceased was already lying
down wherein he
had fallen down doing nothing after he was felled down by the stick
blow which had been administered upon him by
the accused. They also
corroborate each other on the fact that as he was being so belaboured
by the accused, the deceased could
no longer do anything but was
helpless and defenceless.

8

Pw2 was
in particular subjected to a lengthy crueling cross examination but
he was not shaken in his evidence. He further told the
court thereby
corroborating the evidence of other crown witnesses that the skull of
deceased was broken and that his head bones
and brains were separated
such that the brain tissue was scattered.

This
evidence is in turn corroborated by that of the medical doctor who
carried out a post mortem upon the deceased's body. This
post mortem
report; exhibit "E" shows that death was due to brain
tissue laceration; cut skull bone; (right facial region)
- Vide item
7 of this exhibit.

Further
on, vide items 9 and 10 respectively

The
medical doctor's remarks/observations are as follows:-

- Long
opened wound on right facial region. Visible brain tissue.

- Brain
laceration, fracture of frontal bone, zygomatic bone and (R) parietal
bones.

- Cut
hard palate (R) nose - cut wound.

9

The above
kind of injuries are concentrated on the head and they are not
consistent with those caused by the administration of only
one stick
blow upon one's head.

The
evidence of the crown in this regard has not been challenged in any
way by the defence. Neither has the crown evidence that
the deceased
was so belaboured as described by these witnesses as he was lying
down helpless after having been repeatedly hit on
the head with a
stick, been successfully gainsaid by the defence.

Last but
not least on the above issue, all crown witnesses who witnesses this
fight testified that when the accused ultimately left
the scene of
crime, he left in the company of Mahlomola Chabeli and that when he
did so, the accused had taken away with him the
stick belonging to
the deceased. The accused later surrendered himself to police in
Mohale's hoek district.

It must
be pointed out and stressed that the crown witnesses who testified
herein witnessed this incident at different stages because
depending
on where they were in relation to the scene of crime, they arrived
and or went to where the deceased was being assaulted
at different
times.

For
instance, Pwl, Pw2 and Pw4 had remained in the shop when this fight
between the accused and the deceased started

10

outside
that shop. They only went outside to the scene of crime after someone
who was outside there had raised an alarm alerting
people about this
incident. Obviously they would not have seen that which occurred
while they were inside the shop before an alarm
was raised.
Conversely those crown witnesses who were outside that shop witnessed
the fight when it earlier started than those
who had been in the
shop.

There is
therefore no merit in the argument that the crown witnesses have
contradicted each other's evidence regarding the number
of blows
which the accused had administered upon the deceased.

Each of
the crown witnesses are adamant that the accused repeatedly hit the
deceased with a stick on the head even after the deceased
had fallen
down and was defenceless or helpless. The deceased never woke up
after that and he died on that spot as he was being
assaulted by the
accused.

There is
further unchallenged crown evidence that having so belaboured the
deceased with a stick, and having taken away the deceased's
stick,
the accused who had ignored all reprimand to stop the assault upon
the deceased, and having threatened to assault everyone
who tried to
intervene to stop this assault; he left that place but then shortly
and

11

immediately
after walking a few paces away from deceased went back to where the
deceased was lying down dead and that he remarked
about deceased
still being alive. He then administered a few more blows upon the
already dead deceased person. He subsequently
left for his home
carrying the deceased's stick away with him.

What is
clear and unchallenged is that the accused ignored all people who
reprimanded and asked him to stop that brutal assault
upon the
deceased. He also became so furious at those who tried to intervene
that he threatened to also assault them. Everybody,
even the owner of
the shop wherein this incident took place feared the accused and they
looked on helplessly as the accused assaulted
the deceased.

Indeed it
is not surprising that the people who witnessed this assault upon the
deceased by the accused feared for their lives.
From their evidence
the accused was beyond himself with fury as he committed this assault
and threatened those who tried to stop
him from further assaulting
the deceased as he did.

The
accused stopped administering the stick-blows upon the deceased only
when to his satisfaction it was clear that the deceased
had died;
nobody could stop him from what he did upon the deceased.

12

It is
clear from the crown evidence that none of the crown witnesses and
those who witnessed this brutal assault of the deceased
by the
accused ever had an intention to deliberately cause the accused any
harm. All they did was to try to stop the accused from
further
assaulting the deceased fatally.

The
accused did surprisingly ignore those people who allegedly in turn
assaulted him but he continued to belabour the already injured
and
defenceless deceased person, who was not posing any threat of
violence upon him.

Now, one
wonders why it is that he ignored those who were clearly posing
danger to his life while at that time/stage the deceased
was no
longer threatening the accused's life in any way? The accused says he
was in imminent danger of his life because of deceased.
This part of
the accused's story holds no water. It is an after thought and is not
reasonably possibly true. It is rejected as
being false.

One also
wonders why it is that the accused did not seek any medical treatment
for the said injuries. It is not his story that as
a result of such
injuries which he alleges to have sustained in the hands of some of
the crown witnesses he had to seek medical
treatment. This court is
mindful of the fact that the accused went back to his home after
having fatally wounded

13

the
deceased and that he surrendered himself voluntarily to the police on
the following day. It is not his story, nor has this been
put to any
of the crown witnesses that any of them had prevented him from
seeking medical treatment for his said injuries.

Neither
is it his story that he was refused and or denied that opportunity by
the police. There is nothing on record showing that
the accused
reported or laid a charge of assault to the police against those who
allegedly assaulted him.

The above
factors make the accused's story in this regard and as to the kind of
injuries he has allegedly sustained in the hands
of some of the crown
witnesses even more suspect and doubtful.

There is
no doubt in the mind of this court that it was the accused who
fatally assaulted the deceased on the day in question. He
has been
positively identified as being the only person who was seen fatally
assaulting the deceased.

No
reasons can be found by this court as to why the entire crown
witnesses, some of whom are closely related to the accused to wit

Pw2; could falsely implicate him in the commission of this offence.
This court can not find any motive for them to have done that.

14

Accused
has raised, a defence commonly known as self-defence. The accused's
story is that when he was at Molise's shop wherein he
and Mahlomola
(who has not been called to testify in this trial) were sharing a
bottle of beer; the deceased also arrived thereat.

That upon
his arrival the deceased asked the accused to buy him (deceased)
beer. The deceased repeated this request to accused twice
and on each
occasion, the accused replied that he did not have money.

That
after such requests from the deceased, he (accused) realized that the
deceased was in a fighting mood and that he was stirring
trouble, and
was on the verge of assaulting him (accused). It is his further story
that it was at that stage that he immediately
recalled that the
deceased had, on the previous Christmas i.e. on the 25th December
2000; terribly assaulted him (accused) without
good cause.

One must
hasten to note that there is no evidence suggesting that there was a
time when the deceased and the accused were at the
shebeen house of
Molise where they first met each other-on the day in question
indicating that the deceased tried in any way to
fight nor did he
provoke the accused in any way.

15

The story
that the deceased was in a fighting mood and stirred trouble when he
twice asked the accused to buy him (deceased) beer
was never put to
Pwl; the owner of the first shebeen shop. It is to be recalled that
Pwl and the deceased were left behind by the
accused and Mahlomola at
Pwl's shebeen house; and that Pwl and deceased went to Rampone's
shebeen shop sometime after Pwl had closed
his shop after the taking
of the stock by Pwl's wife who had been working at Pwl's shop on that
day.

In other
words, Pwl and the deceased went to Rampone's shop long after the
accused and Mahlomola had left Pwl's shop for Rampone's
shop.

As it has
already been alluded to above, there is no evidence that while at
Molise's shop the deceased did in anyway provoke nor
tried to fight
the accused.

Be that
as it may, even if one were to argue, without conceding to the fact
that the accused was somehow not satisfied and felt
provoked by the
way the deceased spoke to him when they were at Molise's shop, the
accused had had time to cool off and he did
not act upon the deceased
at that very time when the deceased asked accused to buy him beer.
Rampone's shop was situated about/between
500 - 600 paces from
Molise's shop.

16

There is
also crown evidence that the deceased had called the accused man
(monna) at one stage while deceased was asking the accused
to buy him
(deceased) beer but that when the accused objected to being referred
to by the deceased in that fashion, the deceased
immediately
apologized to accused for that and that that was the end of that
story until when the accused left for Rampone's shop
immediately
thereafter.

What is
clear to this court, and this has not been challenged nor denied by
the accused is that it was the accused who had a grudge
against the
deceased over what allegedly occurred between them on the 25th
December 2000.

It is the
accused's story that he had, on that Christmas day in 2000, been
unjustifiably and terribly assaulted by the deceased.

It is the
accused's story that on arrival at Rompone's shop, the deceased drank
some of the beer he, Mahlomola and one Lehohang
had been sharing but
that no one took an offence against that behaviour of the deceased
even though they had not invited the deceased
to share their beer
with him.

17

That
immediately after that, the deceased went outside the said shop and
joined those people who were dancing to music thereat.
He conceded
that there were many people thereat.

He and
others, including Mahlomola remained in Rampone's shop and Pwl who
had arrived at that shop in the company of the deceased
bought them
beer. The accused told this court that he in fact reluctantly drank
that beer and left it unfinished because it had
been bought for them
by the person who had been in the company of the deceased earlier on.

This is
itself a clear indication that the accused had a grudge against the
deceased as well as against anybody who happened to
have been in the
deceased's company; due to that incident which allegedly occurred on
the Christmas of the previous year.

It is his
further story that at around 7:00 pm, he went outside Ramponi's shop
to obey the call of nature. He was still carrying
his lebetlela stick
when he went outside.

It is his
story that as he went outside he went passed the deceased who was
together with other people still dancing to the music.
That, nothing
happened between the two as the accused was outside to obey the call
of nature.

18

That it
was as he went back into the beer-house that he heard someone
shouting saying "choo" (whatever this means) that
he
suddenly looked back and he was then at the door-way. He then
realized that the deceased was holding a stick and directing it
at
him (accused). It is his story that the deceased had aimed a blow
with that stick at his head. He told this court that he had
not
uttered any word to the deceased when he realized that the deceased
had aimed a blow at him with that stick.

That
eventually he was struck a blow by the deceased with that stick. He
however did not fall down. He says he then realized that
the deceased
was fighting him without any good cause. That he then in turn hit the
deceased with a stick on the ribs' area because
he had realized that
his life was in danger. He repeated to hit the deceased with a stick
and this second blow felled the deceased
down.

The
accused told this court that he was just lucky in having been able to
ward off the blows directed at him by the deceased.

Contrary
to the overwhelming evidence of all the crown witnesses who testified
herein and who are all eye witnesses to this incident,
the accused
denies that he continued to belabour the deceased with a stick he was
carrying after the

19

deceased
had been felted down by the second blow which he had delivered upon
the deceased.

It is
clear from the evidence of the accused, and this is a matter of
common cause that the accused did not sustain any injuries
from the
alleged fight between him and the deceased. Only the deceased
sustained injuries herein described by all the crown witnesses
who
witnessed this fight and whose evidence has been corroborated by the
post mortem report as to the nature and the extend of
such injuries.

It is the
accused story that he was assaulted further by some of the people who
had gathered at the said beer-house at the time
when he was
assaulting the deceased.

This
latter part of the accused's story has however not been put to those
people, particularly to Pwl and Pw2 under cross examination.
It is
also highly improbable that the accused has emerged unhurt without
any injuries after being assaulted by more than one person
whilst he
himself was belaboring yet another person. The accused's story in
this regard is not only illogical but it is not reasonably
possibly
true.

What is
most noticeable is that in all of the events which took place at this
place wherein the accused fatally assaulted the deceased,
he
ultimately escaped uninjured and amist the

20

background
of his being a victim of assault not only by the deceased but by some
other people other than the deceased.

This
story that the accused was assaulted by some other people while at
the scene of crime and at the time that he too was busy
belabouring
the deceased with a stick is an after thought and lacks all elements
of truthfulness.

It has
been falsely fabricated so as to create a false impression that there
was a justifiable reason for him to have assaulted
the deceased. All
crown witnesses' evidence is that the accused was not only very
furious and violent as he belaboured the already
helpless defenceless
deceased person but that he equally displayed such violent,
agrressive behaviour against anybody who dared
tried to intervene to
stop his assault upon the deceased.

In other
words, the manner in which he brutally and mercilessly assaulted the
deceased instilled fear in everybody who was there
and no one dared
held him so as to help the deceased by stopping accused from further
belabouring the deceased.

A salient
question, which comes to one's mind, is if indeed the accused was
also assaulted by some other people, in particular he
says he
actually saw Pwl and Pw2 assault him,

21

why did
he then not go for them since he had obviously already at that time
incapacitated the deceased who could not fight him back
anymore?

The fact
which the accused has himself conceded to, namely that the deceased
fell down after the accused had hit him on the head
for the second
time is enough- to explain that at that time when deceased fell down
he no longer posed any danger to the accused's
life. There was then
no need for accused to have continued to belabour the deceased with a
stick until or to an extend of having
fractured/shattered his skull
thereby exposing brain tissue.

The only
inference which can be drawn from the description of the nature of
the injuries which the deceased has sustained in the
instant case is
that more than excessive force has been used in inflicting such
injuries.

It is a
matter of common cause that many people were there outside that
beer-house dancing to music but none of them, in particular
Pwl and
Pw2 who have testified in this case ever heard the deceased uttering
the words "choo" and which words allegedly
prompted the
accused to look back and then realized that the deceased was about to
deliver a stick blow on his head.

22

No
meaning of any kind can be attributed to the said words. They can not
even be interpreted to have been insulting words; nor can
they be
understood to have forestalled a life threatening situation against
anybody.

Indeed no
legal meaning can be attributed to the said words regarding being had
to the circumstances of this case.

This part
of the accused's story that the deceased ever uttered such words,
which are meaningless was not even put to any of the
crown witnesses
Pwl nor Pw2.

Be that
as it may, it is the unchallenged crown evidence that it was the
accused who had harboured a grudge against the deceased
because of an
incident which had occurred on the previous year; on Christmas day
where the deceased had allegedly assaulted the
accused. The accused
has conceded to this fact in his evidence in chief.

He told
this court that what came back to his mind was the fact that the
deceased had assaulted him (deceased) on the 25/12/2000
so that is
why he left that place and went to ha Rampone.

The
accused further told this court that he did not buy any beer for the
deceased. That immediately after he had declined

23

to buy
that beer, it came to his mind that actually the deceased would or
that he was about to stir trouble.

This
evidence, coming from the accused can not be ignored because it goes
to show that indeed it was the accused who had haboured
ill-feelings
and still had a grudge against the deceased.

There is
nothing before this court indicating that when the deceased asked the
accused to buy him beer, there was anything whether
by words or deed
which could make anyone who was in there feel that the deceased was
about to stir any trouble as against the accused.
What is clear is
that the accused was himself not prepared to forget that incident
which allegedly had occurred between him and
the deceased on the
25/12/2000.

Indeed
the above is buttressed by further evidence that he declined to
partake in the drinking of beer merely because that beer
had been
bought and offered to them by Pwl who had been in the company of the
deceased when the deceased arrived at Rampone's beer-house.

The
accused has also in his evidence in chief told this court that the
reason why he left the shop for Molise without having finished
the
beer he had just bought was merely because the

24

deceased
had also gone there and that the look on the deceased's face made him
realize that the deceased had an intention to fight
him (accused)

With
respect, and as has already been alluded to above this shows that it
was him who had a grudge against the deceased. The accused
could not
say what it is which was on deceased's face which made him come to
the conclusion that the deceased had an intention
to fight him. He
has also conceded under cross examination that the relationship
between him and the deceased was not good because
of the incident
which allegedly occurred between them on the Christmas of the
previous year when he was allegedly assaulted by
the deceased.

This
court is left in no doubt that the perceived feeling by the accused
that the deceased had an intention to fight him on the
Christmas of
2001 was unfounded. His story that the deceased had such an intention
is rejected as being false. He has falsely fabricated
it so as to
justify his uncalled for brutal fatal assault upon the deceased in
revenge for the incident referred to above which
had occurred on the
Christmas day of 2000.

It has
already been pointed out that none of the people who had been
together with the accused and the deceased at

25

Ramponi's
shop, - the scene of crime had seen the deceased attempting to hit
the accused with a stick after the latter had returned
from where he
had obeyed a call of nature.

What is
clear and a matter of common cause is that the accused was able to
disarm and take away the stick of the deceased. Having
done that he
then belaboured the deceased with his own stick until he had
fractured the accused's skull as the deceased was lying
down where he
had fallen and unable to fight back or to stand up and flee due to
the injuries he had been caused by the accused.
Indeed the accused
has conceded in his evidence in chief that he had managed to take
away the stick of the deceased from him.

The
accused has pleased self-defence.

Self-defence
has been described in a number of authorities

• In
  his book, Criminal Law and Procedure through cases, the Hon. M.P.
  Mofokeng has this to say about self defence:-

  
  

"......self-defence
envisages that the person

who kills
had little or no choice............" Vide

page 235
and authorities therein cited.

26

He
further says that the onus of negativing self-defence in a criminal
case is on the crown. Now in the instant case, can it be
argued
convincingly that when the accused assaulted the deceased as he did,
he was faced with an imminent danger to his life and
that he
therefore had little or no choice but to kill?

In the
mind of this court this question should be answered in the negative.

None of
the crown witnesses who were at the scene of crime saw the deceased
trying to hit the accused with a stick. This is a matter
of common
cause. This evidence has not been denied. All of the crown witnesses
who were there denied that there was such a time
when the deceased
did so. This they denied even after being subjected to a lengthy
cruelling cross-examination.

The words
which were allegedly uttered by the deceased and which words
allegedly prompted the accused to look, back and which words
are
meaningless, were not directed in particular at the accused nor were
they in any way insults neither could they be said to
have been
threatening words. The case in point herein is that of GIDEON LETELE
v REX CRI/A/149/1968 and that of S. v MIYA AND OTHERS
1966(4) S.A.
274 where it was stated that:

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For an
assault to be committed when no physical impact takes place there
must be a threat of immediate personal violence in circumstances
that
led the person threatened reasonably to believe that the other
intends and has the power immediately to carry out that threat

The crown
has, in the view of this court successfully and beyond a shadow of
doubt discharged the onus placed upon it of negativing
self-defence.

Last but
not least, the accused can not plead self-defence because from all
the evidence adduced herein by the crown, the accused
was the first
one to successfully hit the deceased on the rib area and he
immediately after that first blow then continued to belabour
the
deceased even after the deceased had fallen down.

Not only
that, the accused was able to disarm the deceased as he managed to
take away the deceased's stick.

Further
still even as he was aware that the deceased was so critically
injured with a skull and scattered brain tissue, and in total

disregard and pleas or reprimands that he should stop to belabour the
deceased any further, the accused continued to do so and
nobody dared
hold him as he had threatened to

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assault
anyone who dared stop him or who dared intervene to assist the
deceased.

The
accused has clearly exceeded the bounds of self-defence even if he
felt that his life had been threatened by whatever he alleges
the
deceased had done against him. It has already been shown that all the
crown witnesses have denied that the deceased ever posed
any danger
in anyway to the accused -either earlier on that day or at that time
when the accused fatally assaulted him.

This
story that the deceased ever attempted to hit the accused with a
stick and in full view of the many people who were there dancing
is a
falsely fabricated story. It is also an after thought which was not
put to those crown witnesses who were there at that shop
when the
accused brutally assaulted the deceased thereby killing him. This
story is therefore rejected by this court as being false.

There is
evidence which has not been challenged that indeed the relationship
between the accused and the deceased was soured because
they had
fought on Christmas day in 2000. Even the accused has not denied this
- actually he conceded that he still had a grudge
against the accused
because of that incident.

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It is
because of the above stated reasons that this court has rejected the
accused's story that he assaulted the deceased in self-defence.

There is
further evidence that there is a time when the accused had after
causing the said injuries upon the deceased, and had moved
from that
place, he immediately thereafter before he finally went away; went
back to where the deceased was lying down inquiring
or remarking that
the deceased was still alive.

He then
administered some other blows before he ultimately then left that
place as he had satisfied himself that the deceased would
never wake
up.

This
unchallenged evidence indeed negatives the defence herein raised by
the accused; viz self-defence.

Indeed,
the crown evidence adduced herein has proved beyond any shadow of
doubt that the accused has unlawfully assaulted the deceased
with the
intention to kill and that indeed he killed the deceased.

For
.these reasons the accused is found guilty as charged with having
committed the crime of murder.

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EXTENUATING
CIRCUMSTANCES

An
extenuating circumstance has been stated to be any fact associated
with the crime which serves in the minds of reasonable men
to
diminish the moral blameworthiness of an accused person for his deed.

Vide
Jacobs C.J. in BOTSO MASHAILE AND OTHERS v REX 1971 - 73 LLR 148 AT
164.

In the
case of REX v BIYANA (1938) EDL 310 LANDOWN J.P. said:-

"an
extenuating circumstance ......... is a fact associated with the
crime which serves in the minds of reasonable men to diminish
morally
albeit not legally, the degree of the prisoner's guilt". See
Mofokentg page 167.

There is
a plethora of authorities on this issue. Suffice it to say that it is
trite law that the onus of establishing extenuating
circumstances
lies on the accused on a balance of probabilities. Vide Ndlovu 1970
(!) S.A, 430 AD at 433 (see also Mofokeng 242)

The test
applied here is a subjective test and not an objective Mr. Masiphole
submitted on behalf of the accused that the

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following
are extenuating circumstances which this court should accept as
having been in existence and therefore should influence
the court to
conclude that the accused blameworthiness is diminished by them.

Drunkenness.
It has been submitted that when this incident occurred, the accused
had prior to the occurrence of same imbibed some
three bottle of beer
and as such his mind was clouded due to intoxication; and that this
serves to reduce his moral blameworthiness.

There is
evidence from the accused himself that he did not finish all of the
said three bottles of beer. He also denied that he
was intoxicated
from beer drinking.

Indeed it
is trite law that in a situation as in the present one where the
accused has voluntarily consumed alcohol he is to be
held criminally
liable for actions which he commits while so intoxicated.

It is to
be recalled in this case that the accused was very much alive of his
actions and indeed even of the other people around
him. For instance,
he could observe and make up his own .mind as to the-mood-in-which
the deceased was in.

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If indeed
the accused was so intoxicated as to be not held morally responsible
for his actions, he could not, some six years down
the line so
vividly recall the mood in which the deceased was prior to him
assaulting the deceased fatally.

- Besides
that the deceased's behaviour in threatening violence to all those
people who reprimanded all tried to intervene in order
to stop him
from fatally assaulting the deceased, negative any view that he was
so drunk and intoxicated not to have appreciated
the consequences of
his actions.

- He also
could well recall the incident which had occurred on the previous
year wherein he was allegedly assaulted by the deceased,
so in a way
he punished the deceased for that.

- He also
had deliberately taken away the deceased's stick and this he did well
aware that having disarmed the deceased, he will
be able to revenge
and assault the deceased.

• Last
  but not least, the manner used and the force he applied in fatally
  assaulting the deceased negative anything showing that
  he was so
  intoxicated from beer

  
  

• 
  

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drinking
that he could not appreciate the consequences of his actions.

This
court is mindful of the fact that there is no allegation of whatever
nature that the accused has a history of any mental disease.

The
cumulative effect and the totality of the above as well as the
surrounding circumstances of this case negative on the part of
the
accused the existence of any extenuating circumstances. His moral
blameworthiness is therefore not diminished in anyway.

He
completely defied all reason and all persuasion and reprimand by
those who were thereat present pleading with him not to belabour
the
helpless, defenceless deceased person.

It is for
the foregoing reasons that this court has found that no extenuating
circumstances exist which reduce the moral blameworthiness
of his
actions.

The
accused is therefore found guilty of murder without extenuating
circumstances.

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SENTENCE

Having
found the accused guilty of murder without extenuating circumstances,
this court is enjoined by the Provisions of Section
298(1) of the
Criminal Procedure and Evidence Act No.9 of 1981 to impose a sentence
of death upon the accused.

Death
sentence is hereby and accordingly imposed upon the accused.

Accused
shall be returned to custody and he shall remain thereat and be
hanged by the neck until he is dead.

My
assessor agree.

M. MAHASE

JUDGE

For the
Crown ; Ms. Ngcobo

For the
Defence : Mr. Masiphole

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