CRI/T/102/2005

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

REX

VS

SEKAKE
'MALERE

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 15th July, 2007

This is a
case in which the accused Sekake Malere is charged with the crime of
murder it being alleged:-

That upon
or about the 12th day of June, 2005 and at or near Kolone in the
district of Berea the said

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accused
did unlawfully and intentionally kill Tumo Makhalanyane.

The
charge having been read to the accused he had pleaded not guilty. The
Crown called a number of witnesses amongst them was Pwl
Tello
Mokitimi who sworn had stated he lived at Kana, Berea district and he
was literate. He knew accused before court who lived
at Kolone being
Sekake 'Malere. He knew what accused was charged for the reason he
was in court to testify. On 05/06/2005 accused
and deceased Tumo had
arrived at a shop called Morning Star arriving at about 7.00 p.m at
the same time and bought tobacco he was
selling. The shop was
Letlatsane Makara's owned by Sam Kani for whom he worked. The two had
left after sometime and deceased had
arrived shouting:- Tsosane,
Tsosane, saying Sekake had stabbed him with a knife. The shop had
been closed and the door could not
be opened and after sometime Tau
arrived inquiring after some person stating further that Sekake had
stabbed Makhalanyane. They
had opened the door finding Tumo
(deceased) was lying in a pool of

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blood and
a man had been asked to remain deceased while a report was made the
chieftainship. They had then returned to the shop
with the
chieftainship and villagers being called.

Cross-examined
by Mr. Nathane the witness says deceased was lying towards the
entrance of the shop and Tau was obliged to go through
the verandah
and before he got into the shop would not see where deceased had
fallen for the deceased had fallen some distance
from the door. He
could not say when deceased was stabbed save what deceased said. The
incident had happened in June and in winter
at 7-8 p.m and it was
already dark. It was dark on the day in question. Deceased and
accused had not bought alcohol at the shop
and Tau found accused and
deceased at the chop. He denies when deceased and accused came to the
shop they were heavily drunk. When
the men came to the shop he had
not met them before. He says he does not know what accused and
deceased had been doing before coming
to the shop nor does he know
that on leaving the shop deceased, accused and Tau quarrelled nor
could he deny in the quarrel Tau
and deceased

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assaulted
accused owing to their state of drunkenness. He says he can't deny in
defending himself accused produced a knife or that
accused left
deceased and Tau in their fighting mood.

Re-examined
the witness says as far as he is concerned accused and deceased drunk
when they came to him and so was Tau. He says
he does not sell liquor
and it was not partaken at his shop.

Pw2
Malerato Masupha sworn states she lives at Kolone, Berea district and
knows accused before court who is Sekake Malere and she
is in court
to give evidence regarding a report she received. She is chieftainess
at Kolone. One Tello and Tsosane Masupha had
reported to her to the
effect that Makhlanyane was dead having been stabbed by accused with
a knife and deceased had been stabbed
already when he came to the
shop. She had called police and relatives had taken deceased away.
She had seen a wound on deceased's
clavicle

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Cross-examined
the witness testified she did not know if Pwl's shop sold liquor. By
the assessor the witness says it was between
7-8 p.m when the events
took place. Police had removed deceased saying she was to remain on
the scene awaiting arrival of accused.

Pw3 Tpr.
Mahlehle sworn had testified he joined the police service in 2001. He
was attached to the CID and has been so attached
from 2002 to date.
In 2005 he was stationed at TY and knows accused before court having
seen him at Kolone, 'Mamathe's. A report
had been made to the police
on 12/06/2005 to the effect that a man had been killed at Kolone at
Themba's shop; the following day
on 13 June, 2005 the accused as
suspect was arrested having given himself up to the chieftainess of
the area. With the police he
had gone to the scene finding Pw2 who
handed accused to the police and having introduced himself to accused
the latter had given
an explanation and being not satisfied with it
had charged accused of murder. Accused had taken him to a bush where
he showed the
witness where the knife was hid. Accused had

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produced
a panga knife from the bush. The knife had been handed for safe
keeping to the Clerk of Court but it was said the police
keep the
knife and it had been so kept though it appears the exhibit is
missing.

Cross-examined
the witness has testified when he went to the bush Pwl was not with
him for in accused going to point out he did
not think Pwl's presence
was necessary and in any event accused was co-operative. He is not
aware in searching a chief is to be
present. He denies accused did
not take him to the bush. He did not know Poloko nor does he know the
knife accused used or was
Poloko's.

No
re-examination.

Mr.
Mokorosi reads into the record a scene crime report by D/Tpr. Poloko.
Postmortem report is also read into the machine the reports
being
marked respectively Exhibits A, B and C.

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On
02/05/2007 appears Mr. Mokorosi for the Crown and Mr. Nathane for the
defence. Assessor Mr. Lekomola is before the court and
assessor Mr.
Mafatle is missing.

Pw4
Tsosane Masupha sworn states in 2005 he resided at Kolone,Mamathe's
where he still resided at present. He was literate and knew
accused
to whom he is not related though he is a neighbour. He was in court
to testify in regard to one Makhalanyane who is deceased
having died
on 13/06/2005 in his presence. On 12/06/2005, Tumo Makhalanyane came
to a shop where he was with one Tello buying tobacco
and Sekake
Malere has come in course of their discussion and they had chattered
together and Tau had come in and bought a cigarette.
Tau lived at
'Mamathe's at a village called Moshebi, Tau had left leaving the
witness with Tello the while Tau, Sekake and Tumo
left. The witness
has testified he believed the men were going to their homes and yet
he heard someone cry out and they'd heard
footsteps as if someone was
running when he heard Tumo the deceased on the verandah of the shop
as if he was kicking the door calling
out the witness's

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name;
Tsosane, Sekake has stabbed me with a knife. Tau was shouting and
someone came running outside and at the door Tau also called
out the
witness's name and he had answered saying; you know that Sekake has
stabbed Tumo with a knife. He says when he lit the
torch he found
Tumo had fallen and there were bloodstains. In reply to his question
Tau had said Sekake stabbed Tumo with a knife
because Tau had said he
should go back and buy liquor. Clarified the witness says it was
Sekake who said Tau should go back and
buy liquor. There was no
drinking in the shop and both accused and deceased not drinking. Tau
did not buy liquor there being no
liquor in the shop. The witness has
testified Sekake ordered Tau to go back so he can buy liquor.
According to the witness, the
reason Tumo was stabbed with a knife by
Sekake was because Tau said Tumo and Sekake were fighting him.

Mr.
Mafatle arrives during the progress of the case and court ordering
where an assessor returns after evidence has been led irrespective
of
period of absence, an assessor may not be allowed into the case.

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Cross-examined
the witness says he did make a statement to the police which he
signed and acknowledges the writing thereon to be
his. He says the
owner of the shop is Ntlatsane Makara and did not know who were
lessor and lessee. He denies liquor is sold at
the shop. He says
complainant Khashemane stabbed at the shop where he is security guard
and doesn't know whether deceased stabbed
in course of drinking
liquor. He says deceased was to buy liquor at Kana at a bar. He says
he did not tell the police anything
about Tau or what he said to him
and does not know whether there was fighting between deceased and Tau
though from what Tau told
him it appears there was fighting between
Tau and deceased. He says he does not know who initiated the fighting
or circumstances
which brought about the fighting. He says he can't
tell when deceased, Tau and Sekake are drunk and he cannot deny they
were drunk
for he does not know when they are drunk. That happened
because of drunkenness he says he does not know because he was not
present
or for that matter that accused was defending himself.

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No
re-examination.

In answer
to question by Mr. Lekomola the witness says at the shop there was no
quarrel between accused and deceased.

Pw5 Tau
Sesinyi sworn has stated he lives at Pitsaneng Ha Mohlape and he is
semi-literate and knows accused his means of knowing
him being that
he is from Kolone. He knows when accused killed somebody. He went to
Kolone and there found a salesman Teko Mokitimi,
one Tsosane and the
accused, the deceased and others. He bought a cigarette and when he
entered, accused and deceased and other
persons were pleased to see
him as they'd always known each other. Accused had then said if the
witness wanted liquor it was available
and as for deceased, he was
already drunk and it was better he went home; he says accused was
addressing him. He says then him,
deceased and accused were a
distance from the shop. Accused and deceased had then had a quarrel,
deceased had suggested the witness
go home for he was very

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drunk;
the witness shared the same opinion with deceased for he wanted to go
to where beer was sold. There was a lengthy quarrel
between accused
and deceased; deceased was saying the witness was to go to sleep for
people would catch him and accused was saying
deceased should leave
the witness alone so the latter could get where liquor is sold.
Accused had then said to deceased: I will
end up stabbing you with a
knife and accused had ended up stabbing deceased with a knife the
while deceased was urging the witness
to go home when accused stabbed
deceased with a knife. The witness says he was then between accused
and deceased the latter being
on the left-hand side and accused on
the right-hand side with the witness holding a touch case, accused on
the right side saying
they should go and deceased on the left-hand
side saying they shouldn't go and accused produced a knife stabbing
deceased. The
witness says he then asked accused: Have you stabbed
him with a knife? Accused had not replied save fleeing. Deceased had
gone
to the shop and the witness followed to determine how deceased
was stabbed. It was at about 8-9 p.m. The witness has testified when

deceased came to the

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shop he
did not hear him make noises and he could not see him; at the shop
they had asked him you've just left, what do you want
and had called
deceased by name asking his whereabouts and Pw4 had said he knocked
at the door and they did not know where he was
and he had explained
to Tsosane (Pw4) and Tello (Pwl) that deceased stabbed with a knife
though he couldn't say where as it was
dark. By torchlight it was
found deceased had fallen on the doorway dead and a report to the
effect had been made to the chief.
Police informed and on finding out
the witness was in company of deceased had concluded person in
company of deceased (the witness)
was very drunk and had warned the
witness not to stray far as he would be wanted the following day. The
following day he had explained
to the police as he has explained to
court.

Cross-examined
the witness says he told the police what he told the court. He says
there was no bad-blood between him and deceased
and when he took his
bag it was not in bad mood for deceased wanted to go home. He says
deceased

12

pulled
this way and accused that way, they were struggling over the bag. Put
to the witness he was so hopelessly drunk, he remembers
nothing, he
says he still remembers some facts.

At end of
Crown case court finding because of accused state of drunkenness
(indeed both Pw5 and the deceased were hopelessly drunk)
it could not
be said that he had the requisite intention to murder and accused was
therefore found not guilty of murder and acquitted
and discharged of
this offence there being, on the contrary, evidence to go to trial on
a charge of culpable homicide.

The Crown
having closed its case the defence also closed its case.

I am to
mention that in course of the trial Crown evidence and particularly
that of Pw5 was not challenged in material respects,
not challenged
because the defence was put to Crown witnesses it being claimed that
in producing the knife and stabbing the deceased
accused was acting
in self-

13

defence.
Crown witnesses and particularly Pw5 has denied that accused was
acting in self-defence or at all. Pw5's evidence was to
the effect
that there was some contention between accused and deceased as to
whether to buy more liquor or go home. Deceased was
for going home
and accused for buying more liquor. In course of the argument accused
and deceased were holding Pw5's bag pulling
it this way and that and
accused had threatened to stab deceased with a knife, something which
he did in circumstances in which
accused's life was not threatened at
all. Worse, on stabbing the deceased, accused had fled the scene.

Importantly,
this evidence was not gainsaid by the defence and there is no reason
whatsoever why the court should not believe it.
Question is why did
accused flee the scene unless he was conscious of his deed? Pw5's
allegation of accused fleeing finds support
in Pwl and Pw4's evidence
who claim to have, by torchlight, found deceased fallen, dead in
presence of Pw5. They do not mention
accused's presence.

14

Whatever
defence accused may have raised in course of cross-examination is so
flimsy this court has had no hesitation in rejecting
it out of hand.
Besides, the accused was acquitted on the capital charge for the
reason that there was sufficient evidence proofing
that he would not
have had the requisite intention to murder by reasons of his alcohol
intake.

The
inquiry now is different for it has to do with negligence. This court
has carefully listened to the Crown and defence counsel
and their
accompanying Heads of Argument but the court is of the view having
acquitted the accused on the capital charge for the
reason that owing
to accused's voluntary intoxication he could not have had the
requisite intention to murder, a question now arises
whether equally,
accused can be found not guilty of culpable homicide.

The
question posed by the court arose in Rex vs Ngaka Lehlohonolo LLR
1980(2) 541. In this case, accused for very flimsy reason(s)
stabbed
deceased with a knife and in his summary of facts in favour of the
accused Mr. Maope for the

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accused
had submitted that the case was on all fours with R v Mohlomi
(1971-73 LLR 57). Rooney J in convicting Lehlohonolo above
as
charged, rejected the contention. It is nevertheless important to go
into facts of Mohlomi's case above in that in this court's
view, the
facts are consonant with facts in the instant case.

In
Mohlomi's case above the headnote of the report reads:-

1. Where
   an accused person unlawfully kills another whilst suffering from
   amnesia induced by voluntary intoxication, he is guilty
   of culpable
   homicide.

   
   

2. Facts
   of the case. Accused charged with murder of his grandmother while he
   had been to a threshing feast where he consumed alcohol
   and had
   taken more at a friend's home. At his mother's home he caused some
   commotion behaving strangely. Deceased took a 14 year
   old girl for
   an adult and

   
   

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when the village headman arrived he found accused lying next to the
deceased and he was heard repeating "it is a good thing
the old
lady dies because she has killed many people by bewitching them".

C. Accused gave evidence of a strange feeling coming over him as if a
cloud was descending on him and that thereafter his mind
was a
complete blank. There was no evidence accused mentally disordered.

1. Held:-
   Taking into account all the surrounding circumstances and in
   particular the strange behaviour of the accused and to be
   believed
   when he stated that he was suffering from amnesia when he killed his
   grandmother. He could not, therefore, have had
   the mental capacity
   to form an intention to kill.

   
   

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2. Since
   the accused had brought the amnesia upon himself by voluntary
   consuming intoxicating liquor, he should be held criminally

   responsible for his acts. Accordingly accused was found guilty of
   culpable homicide (S v Johnson 1969 (1) SA 201 (A.D).

   
   

According
to the learned Rooney J, Jacobs CJ in Mohlomi's case above defined
three categories of cases one of which being where
an accused had
acted involuntarily and automatically and could not be said to be
criminally responsible for his actions. The second
category was where
as a result of consumption of intoxicating liquor a person's mind
deteriorated to such an extend that he became
temporarily insane. In
defining this category Jacobs CJ referred to the case of S v Johnson
above "where in such a case the
charge against the accused is
murder but cannot be found guilty of that crime because he clearly
could not have had the mental
capacity to form an intention to kill.
In such a case the proper verdict is one of culpable homicide".

18

Although
in deciding R v Mohlomi above the learned Chief Justice did not refer
to the criminal liability of Intoxication Persons
Proclamation, 1938,
the Proclamation sets out in Section 2(1) the following proposition:
"save as provided in this section,
intoxication shall not
constitute a defence to any criminal charge". Sub-section (2)
and

(3) read
as follows :-

"(2) Intoxication shall not be defence to any criminal charge if
by reason thereof the person charged at the time of the act
or
omission complained of did not know that such act or omission was
wrong or did not know what he was doing; and

1. The
   state of intoxication was caused without his consent by the
   malicious or negligence act of another person; or

   
   

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2. The
   person charged was by reason of intoxication insane, temporarily or
   otherwise, at the time of such act or omission;

   
   

3. Where
   the defence under the preceding sub­section is established,
   then in a case falling under paragraph (a) thereof the
   accused
   person shall be discharged, and in case falling under paragraph (b)
   the provisions of Sub-section (2) of section one
   hundred and sixty
   nine of the Criminal Procedure and Evidence Proclamation (1) shall
   apply".

   
   

Finally, Sub-section (4) reads:-

"(4) Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed any intention,

specific or otherwise, in the absence of which he would not be guilty
of the particular offence charged".

20

In my
view, Rooney J gave interpretation to the statutory provisions
referred to above for amongst other things he has said (p.556)

Sub-section (4) above introduces into the law of Lesotho a principle
derived from the law of England as recently restated in Regina
v
Garlick Times Law Reports (2nd December, 1980) where the Court of
Appeal per Lane L.C.J. stated in R v Sheehan (1975) 1 WLR 739
and R v
Predage (1975) Crim. L.R. 575 pointed out that when the question of
drunkenness arose, it was not a question of the capacity
of the
defendant to form the particular intent which was in issue, for what
was in issue was the question simply whether he did
in fact form such
an intent.

In the
instant case there was no evidence that accused suffered from
involuntary intoxication nor indeed was there a complaint that

accused's intoxication was malicious having been caused by an act of
another. On the contrary, although accused restricted himself
to
self-defence in course of cross-examination of Crown witness in view
of the fact that there was no evidence in support of the
defence, the
court rejected

21

the
purported defence. And although the court agrees with Rooney J (p.556
of Seholoholo's case above) that the onus of establishing
the defence
of intoxication in terms of Section (2) rests upon an accused as it
does of insanity, I also agree with the learned
Judge that the burden
of proving intention rests on the Crown as in all other cases save
that, as Schreiner JP said in R v Taylor,
1949 (4) SA 702 at 713:-

"..... the decision of the question whether in fact he had the
intent will ordinarily proceed along the same lines as if he
had been
sober".

Evidence
that both Pw5 and the accused including the deceased were intoxicated
came from Pw5 explaining the strange behaviour of
the accused in
stabbing the deceased. Pw5's evidence was not negated and there was
no reason for the court not to believe it or
reject it. Besides, in
fleeing after stabbing the deceased, this is proof that accused was
conscious of his act.

22

Having
regard to provisions of the legislation referred to above and
circumstances of this case including the decision in Mohlomi's
case
above, this court comes to the inescapable conclusion that accused is
guilty of culpable homicide.

My
assessor agrees.

G.N.MOFOLO

JUDGE

23

In
mitigation

Mr. Fuma
says he is not fully instructed though accused has no previous
convictions.

In
mitigation, Mr. Nathane appears to place a premium on the court
having said Pw5 was hopelessly drunk. I agree but it does not
mean
that his explanation can be rejected out of hand for it explains what
happened. If accused had some other explanation, it
was for him to
negate Pw5's explanation, improbable as it may seem.

Nevertheless,
Mr. Nathane says accused is first offender, has a family to support
and this is not an intended crime for which a
custodian sentence can
be imposed. Court bearing in mind circumstances of this case and
person of the accused the only sentence
that comes to mind is payment
of M800.00 or 2 years imprisonment bearing in mind since the prisoner
has been convicted of culpable
homicide there is the likelihood of

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deceased's
estate claiming 10 head of cattle to raise deceased's head.

In the
result, the prisoner is sentenced to pay M800.00 or undergo 2 years
imprisonment payment being deferred to 18 October, 2007.

G.N
,MOFOLO

JUDGE

For the
Crown : Mr. Mokorosi

For the
Defence: Mr. Nathane

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