HIGH COURT OF LESOTHO
by the Honourable Mr. Justice W.C.M. Maqutu On the 28th November 2006
accused is charged with murder. In that upon or about the 08th day of
May 2004 and at or near Lower Moyeni in the district of
said accused did unlawfully and intentionally assault Tholang
Phatsoane and inflict a knife stab wound upon him from
which the said
Tholang Phatsoane died on the same day.
pleaded not guilty.
the court that - between 11.00 am and 12.00 pm - while he was leaning
at Moyeni Quthing, against a bus he saw accused stab
deceased with a
knife for no apparent reason. He did not know what had preceded the
stabbing. Accused's cross-examination showed
that the stabbing was
earlier preceded by an assault by deceased on the accused at some
other place. Pwl conceded that he was not
aware of these facts. Pwl
also conceded he did not know this cause of accused's anger.
the court of an earlier - between 11.00 am and 12.00 pm - fight
between deceased and accused at Mount Moorosi. Deceased
accused with a fist on the mouth as a result of which accused's
bled. Pw2 said he had separated them. Pw2 had refused to allow
accused to get onto the passenger vehicle Pw2 was driving -
he told accused that he might again fight with deceased.
deceased went for Mount Moorosi to Moyeni Quthing - a distance of 44
kilometres. Two hours later accused arrived at Moyeni
Quthing - a
place at which Pw2's vehicle was loading passengers. At that time Pw2
was in the front cabin of another vehicle sitting
with its driver.
Deceased was leaning against that same vehicle about 2 metres from
Pw2. Pw2 says he heard a loud noise - as he
got down from the
vehicle, he saw accused had just stabbed deceased with a knife.
Deceased was taken to hospital but died before
he got there. This was
confirmed by the doctor.
cross-examined showed Pw2 did not see the stabbing. Pw2 could not say
why deceased wanted earlier to be taken to the front
of the vehicle
-but Pw2 was positive deceased never threatened accused.
deceased had assaulted accused, accused had not provoked the
deceased. Pw2 separated them and found accused to be bleeding.
Marobela Marobela a bus conductor. Duly sworn, he saw accused at
Moyeni Quthing. Pw3 worked in a different passenger carrying
for a different employer. Accused went behind their vehicle. Pw3
heard a sound of some one hitting something. Pw3 saw the
of accused with a knife stained with blood. Pw3 said although
deceased was 8
from him - he did not know what deceased was doing. Deceased bled
profusely causing Pw3 to ask Pw2 to find a vehicle to rush
to hospital. Pw3 did not go to hospital with them. Pw3 however did
observe the deceased had a wound above the left breast.
Pw3 said he heard no exchange of words between accused and deceased.
He could not deny deceased might have provoked
accused by conduct.
There was a lot of noise in the area caused by motor vehicles and the
policeman Pw4 Sergeant 'Moleli told the court that he arrested
accused in the cause of duty. Accused handed a knife to him and
closed its case.
gave evidence in his own defence. He said he gave the deceased M20.00
for bus fare as he thought that was the right thing
to do, because he
found it wrong for bus-conductors not to pay. Accused expected
change. Deceased was not happy to give accused
deceased gave the accused M 10.00 change. Accused insulted him.
Accused asked to move to the front of the bus.
He actually moved to
the front of the bus.
got to Mount Moorosi, deceased opened the front door of the bus and
hit accused with a fist on the head and he (the accused)
Deceased had to open the door from the outside because its inside
latch did not function. When he
the ground he went for deceased and they held on to each other. Pw2
to Moyeni Quthing in different buses with deceased. About an hour or
two later they met. At the bus rank where they met
for no reason insulted him again and asked if he still want the
deceased to assault him. Deceased came towards
him - accused then
stabbed him with a knife. He went home to report. The following day
he surrendered to the police. The bus stop
was very noisy.
accused said his change ought to have been M 12.00 not M 10.00.
Accused admits that because it takes about an hour
to get to Quthing,
eh ought to have cooled down. There are things Pw2 and Pw3 did not
hear. Accused said he stabbed deceased
he was afraid of him. Accused said he had no intention to kill
defence closed its case.
the accused's version of the fight. I also believe that the witnesses
Pw2 and Pw3 did not hear what words preceded the
fight. I have no
doubt the accused was labouring under some smouldering resentment.
clear was that when they met, accused was ready to stab the deceased
at the slightest provocation. In other words accused
wanted an excuse
to stab deceased. He intended to kill deceased because deceased had
earlier offended him.
facts as stated by the accused, I am satisfied accused was not
defending himself. When they quarreled again at Moyeni Quthing
stop, the accused stabbed the deceased on the chest. Any reasonable
man should know that stabbing a person on the chest, above
breast - is in the heart region.
is whether the accused subjectively intended to kill deceased. I
think he did. He had sufficiently cooled down. Consequently
deceased's earlier assault and provocation does not avail as a
defence - according to the Criminal Law Homicide Act 1959. The
exchange of words accused had with deceased was so short and of such
a nature that they could not entitle accused rationally to
deceased where death was a certainty.
eventualis according to S v Sigwahla 1967 (4) SA 566 can be inferred
where a person does something that makes the death of
clearly foreseeable. It is inferred from the facts. Like all inferred
facts, it must be the only conclusion to be reached.
From the facts I
have no doubt accused intended the deceased's death from the
accused is guilty of murder.
I have no
doubt there are extenuating circumstances. Accused was labouring
under a smouldering resentment. He did not act as a responsible
might have. If provocation is immediate it puts the intention to kill
in doubt. Even
if it is
immediate it must be of a nature that leads to loss of self-control.
Since parties did exchange some angry words before
the stabbing - I
accept accused stabbed the deceased in anger.
surrounding circumstances definitely reduce accused moral blame
worthiness. That of course does not mean people should be killed
merely because they gave offence. Life is sacred and law an order
cannot be maintained if people punish each other at will.
This is a
borderline case of murder - it could be culpable homicide in certain
circumstances. Accused is a first offender. I have
accused's youth into account. I think an attempt should be made to
give the accused a sentence that might reform him.
sentence would not benefit this society or the accused himself.
is sentenced to six years imprisonment two of which are suspended for
three years on condition that accused is not found
guilty of a
similar assault or assault with intent to do grievous bodily harm.
25th January 2007
Crown = Mr. Rammena
Accused = Mr. Makholela
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