IN THE HIGH COURT OF LESOTHO

HELD AT MASERU                                              CRI/T/46/2010

In the matter between:

REX                                                                                       Crown

And

 

JUDGEMENT

Delivered by the Hon. Mr Justice T. E. Monapathi

On the 13^th of July 2011

 

1.        These licensed motel like guest houses otherwise called Bed and Breakfast (B & B) abound in many subarbs of Maseru.  The name itself suggests the purpose.  But it is where for other purposes, men and women, girls and boys liaise.  Sometimes it is married men meeting women who are not their wives for illegitimate purposes.  This is a sure recipe for mischief such as in the present case.   The scene had been set for the sordid event at Molemo Guest House at Ha Tšosane, Maseru.

 

 

2.        This is a case of murder, wherein the Accused (an ex-soldier) is charged with the murder of his neighbour one Tanki Bulane (Deceased).  It being alleged that the said Accused did unlawfully and intentionally shoot and kill the Deceased on or about the 10^th January, 2010 and at or near the said Molemo Guest House Maseru.  Deceased had received not less than 6 gunshot entry wounds mostly on the upper body as will be described later.

 

 

3.        The Crown led evidence of a single witness followed by admissions of the statement of facts as signed and agreed upon by both Counsel for the Crown and Defence.  The latter was a summary of facts admitted from the statements of various witnesses in the matter and it was marked exhibit “A”.  Post-mortem Examination Report and Ballistics Report were also handed in as part of the evidence and were marked exhibits “B” and “C” respectively.  

 

 

4.        The court had later called two (2) witnesses namely Senior Superintendent Chitja (PW2) of the Lesotho Mounted Police Service (LMPS) stationed at Police Training College and one Sekola Phakoe (PW3), a billing and information (IT) Officer of Vodacom Lesotho a mobile cellphone networking company.  This last witness was called by the court.  His evidence was based on print-out from his company indicating calls made by the Accused to his wife on the day of the event.  It was to establish whether around the hour of  11.00 in the morning and 15.00hrs in the afternoon Accused could have phoned his wife, who allegedly did not respond, specifically whether calls were made.  Accused’s attitude had been that many calls were made to which his wife did not respond.  Not much value emerged from PW3 evidence that contradicted Accused’s version.  The uncontradicted story of the Accused was that he made the calls and they were not answered.

 

 

5.        PW1 – ‘Makatiso Molongoana testified to the effect that on the fateful she was on her usual duties at Molemo Guest House where she worked as a receptionist.  She told the court that on that day the Deceased whom they were well known to each other as “Motsoala” (cousin) came in to book for a room.  He was allocated a Room No. 2 and he left for his room around 13:30 hrs.  He had sought for a room and was allocated one before/after certain payment.

 

 

6.        PW1 further testified that at around 13:45 hrs, she saw a certain lady coming in by the gate and going straight to Room No. 2 which was issued out to the Deceased.  She said as the lady walked on the forecourt of the yard, she realized it was the lady who was usually in the Deceased’s company and they teamed up whenever the Deceased came to that place.  She further indicated that the two were regular customers at her work place.  The witness later learned that the woman was Mrs Mphahama,  Accused’s wife.  Mrs Mphahama, as testified before this court, was a Senior Officer in the LMPS (Inspector Mphahama).

 

 

7.        In her evidence PW 1 made it clear that she was so precise about the times at which the events took place as her duties involved amongst others time keeping for the coming in and coming out of customers from rooms.  She indicated that at about 13:50hrs the Accused also arrived. He was in short pants.  He was unknown to her at that time. The witness said as the man approached she left her work station with the intention of washing her hands as she had just had her lunch.  She thought the man would approach the reception.  She further told the court that as she returned from the kitchen she could no longer see the man.  That man had strangely not approach the reception area.

 

 

8.        It was PW1’s evidence that she went and looked around the premises trying to find out where the man in short pants could have gone.  She said it was at that time that she heard noise from one of the rooms and as she listened carefully she realized it came from Room No. 2.  She knocked about three times before someone could finally open the door.  It was that woman she had seen who opened the door.  The woman had both her hands held on her head and had hand-bag still hung on her shoulders.  It was about that time when the witness heard several gun shot reports.

 

 

9.        PW1 further indicated that at about that time of appearing at the door, whilst still expecting the woman to say something about the noise, she heard gun shot reports and immediately the woman closed the door on her and went back into the room.  She said she ran away as the shots continued to be fired and that as she went past the reception area and got to the gate when one Mary Nkoro (her then colleague) appeared from the house and joined her at the gate.

 

 

10.    PW1 also testified that as they tried to make their way through the gate, they saw the Accused and the woman coming out of the room whom she later as aforesaid learnt they were Mr and Mrs Mphahama.  She and Mary Nkoro then left to report the matter to their manageress ‘Majosiase Sentšo, who lived in the same neighborhood.  She told the court that they managed to make the report and they all (i.e the 2 of them) went back together to the Guest House.  On their arrival Mary and one man (whose name was unknown to her) got into the room and inspected it.  She said she was very frightened so that all she could see was that, the Deceased’s body was naked and that the Deceased had fallen supine somewhere near a wardrobe.

 

 

11.    PW1 further testified to the effect that police came after a report had been made to them and that they later collected Deceased’s corpse.  It was further her evidence that subsequent to the events of that day, she and other people collected bullet shells from the room as the latter were being cleaned.  The said shells were also given over to police.

 

 

12.     In court counsel agreed to file a statement of facts marked Exhibit “A” as agreed and signed. This consisted of two statements of identifying witness namely Mohloki Bulane and Motlatsi Bulane.   Both statements were to the effect that the two (2) witnesses identified the body of the Deceased before and after a post-mortem was carried out.  They further disclosed that the Deceased had sustained multiple wounds on the head and body.   Remarkably despite the agreed statements Counsel would unreasonably disagree in argument, over matters which had apparently become common cause.

 

 

13.    Also admitted was the report of No. 5549D/TPR Monaheng an officer of the LMPS.  His report was to the effect that having received the report concerning the shooting at Molemo Guest House he and his other colleagues proceeded to the place.  There they were shown into room where the event took place.  He also stated that the Deceased was already dead upon their arrival.  He (Deceased) was naked and laid in a pool of blood.  He examined his body and observed a number of wounds on Deceased’s body, including side of the head, chest, neck, ribs and stomach.

 

 

14.    The Officer further noted in his report that he collected 15 empty shells, 12 dead bullets and 3 cases, all of which he submitted to ballistics department for examination on the following day i.e on the 11^th January, 2010.

 

 

15.    Admitted also under Exhibit “A” was the report of No. 7127D/TPR Damane of LMPS.  The report stated that whilst on duty at Maseru Central Charge Office on the 10^th January, 2010 the Accused surrendered himself and was accompanied by one Inspector Koele of the LMPS.  Upon his surrender the report stated that the Accused disclosed that he was an ex – soldier and currently a teacher at ‘Mabathoana High School, in Maseru.

 

 

16.    Further, as Accused stated, that the reason he was at the police station was because he had just shot a person he identified as the Deceased herein at Molemo Guest House at Ha Tšosane.  Having inquired about the gun used D/TPR Damane stated that the Accused took it out of his waist and handed it over.  Upon its inspection, D/TPR Damane realized it was 9mm pistol with serial number S104160 with an empty magazine.  The gun was later on handed over to TPR Likoti of the LMPS.  It was later exhibited in this court as exhibit “1”.

 

 

17.    D/Inspector Likoti’s report corroborates to a large extent that of D/TPR Damane in so far as the transfer or handing over of the murder weapon in this case is concerned.  He stated that, indeed, the gun, as already identified was taken over to his office from Maseru Central Police Station where the Accused had surrendered himself.  Also he is the one who handed it over to D/TPR Monaheng of the LMPS who then took it to ballistics for testing purposes.

 

 

18.    In addition, was the report of No. 10393 Inspector Chitja (PW2) wherein the Inspector stated that he is actually the one who issued Inspector Mphahama (Accused’s wife) with a 9mm pistol serial number S104160 together with 15 rounds of ammunition and 1 magazine.  This witness was later called to appear before court with the records indicating the whole process surrounding the application by officer and issuance of a gun.  And indeed he went on to identify the gun before court as the one he personally issued to the Accused’s wife.  This court found no grounds for disbelieving (PW2).  Indeed there was no argument seeking to cast doubt in that direction.

19.    Admitted in this court, at the end, was the statement of Mary Nkoro which statement was or more the less the same as that of PW1, except that this witness did not see the Accused, as described by PW1, entering the premises.  But rather that she heard multiple gun shots reports and as she peeped through the door she saw PW1 around the gate and joined her there. 

 

 

20.    The rest of Mary Nkoro’s evidence on what followed at or from the gate is exactly like that of PW1 who she corroborated.  Further that she is the one together with the man mentioned in PW1’s testimony, who entered into room No. 2 after they had reported the matter to the said ‘Majosiase.  The latter’s statement is to the extent that she received the report from (PW1) as the manageress and came to the scene whereby police were informed and later arrived at the scene. 

 

 

21.    Exhibit “B” was the post-mortem report.  It stated that death was due to multiple gun shot wounds, severe blood loss and multiple organ injury.  It was further recorded in this report that there were 22 entry and exit wounds on the body of the Deceased, resulting in skull fracture and brain contusion.  Significantly, as I remarked, there were two (2) entry wounds on the left side of the head, one (1) entry wound on the chin, and five (5) entry wounds.  The rest were exit wounds and bruises.

22.    Finally, exhibit “C” was the firearms examiner report (ballistic report) of which indicated that a pistol 9mm, serial numbers S104160 was handed in together with 15 empty shells, 12 dead bullets and 3 cases.  The gun was also handed in and it was collectively labeled and marked Exhibit “1” together with the shells.  It was not denied that the gun was handed over as aforesaid by the Accused.  The Crown’s case was thereafter closed.  The defence then applied for discharge at the end of the Crown’s case.  This application was refused by the court as being unreasonable in that, even on the admitted facts, it cannot be said there was in- sufficient evidence.  This is so because as the authors of South African Law of Evidence, fourth edition, at page 506-507, say:

 

“Generally, the questions of credibility do not play a larger role at this stage of the trial. It is usually true to say that the judge’s duty is to consider whether the evidence advanced by the Crown if believed, might be sufficient to satisfy a reasonable man acting carefully that the accused is guilty.”

And then the learned authors referred to cases at footnote 57.  Of course this was not a case where:

“…the prosecution’s evidence may be so contradictory or fanciful that the proper course would be to discharge the accused”. 

Quoted from page 507 of South African Law of Evidence (supra).  Again it had to be considered that in terms of section 175 (3) of the Criminal Procedure and Evidence Act 1981 the absence of sufficient evidence, in order to discharge an accused person,  must exclude that the accused may be convicted of: .… “any other offence of which he must be convicted thereon”.  Accordingly there should be no likelihood of an accused being convicted of a minor offence or competent verdict such as culpable homicide.

 

23.    In his sworn evidence the Accused informed this court that on that fateful day his wife was supposed to have gone to Masianokeng as agreed.  That the Accused ended being on the same side of town with his wife was due to pure coincidence.  He said on that day he had intended to check on his friend who stayed at Ha Tšosane (the area of Molemo Guest House) when he suddenly saw a figure similar to his wife alighting from a “Four Plus One” taxi.  Four Plus Ones are popular and ubiquitous cars used for hire in every major town in Lesotho.   He decided to follows his wife on foot.

 

 

24.    Accused in his evidence further told court that he made numerous attempts to call to the attention of his wife but all in vain.  He said he called out to her shouting her nickname and ending calling her mobile phone, but still with no luck.  So he followed his wife by foot up to a place he later learnt was Molemo Guest House.  Still he had continued to call his wife’s number in vain.  The phone rang but there was no answer.  He said that was even how he got to determine in which room his wife was.  As clear as this is the important thing that the evidence disclosed is that he went straight to the rooms to search and look out.

 

 

25.    Accused further testified that he found that the door. to the room wherein his wife and Deceased were, was unlocked.  He had not known that Deceased was with his wife.  So he got in, and he proceeded into the inner-room (bedroom), wherein, he found the Deceased laying naked in bed and Accused’s wife seated on top of Deceased.  The latters’ upper body was half naked with only her bra still on.  He told the court that as he entered he was shocked at what he saw and the Deceased suddenly called out to him saying “morena” (chief) and he jumped off the bed.

 

 

26.    Accused said immediately, as Deceased jumped off from the bed, he came towards him “as if he wanted to go out” and by that time Accused was standing by the door and he shut it behind him.  In cross-examination Accused became reticent and said that the reason the Accused advanced towards was to attack him. He thinks that was because he did not want to go out of the room. In-chief Accused had said it seemed the Deceased wanted a way out. It was clear that Accused was becoming evasive.  Notably Deceased had not been fully dressed all along.

 

 

27.    Accused further said that as Deceased approached him he started attacking him and he (Accused) tried to free himself and was thrown over near a cupboard.  They must have grappled.  He said it was at this time that he realized Deceased was still advancing towards him and now with a plank in his hands and aimed at him.  He said he thought the plank might have broken from some wooden of piece of furniture.

 

 

28.    Accused then grabbed the gun (referred to earlier in LMPS Officer Likotsi and Damane’s report) which was on the cupboard.  It was after some grappling with hands during which Accused was let loose.    Accused pointed this gun at Deceased and started shooting at him until all he could remember was his wife taking the gun out off his hands.  He thought he could have been in some kind of a trance during the shooting and that he lost his self-control because of the provocation. See S v Lubbe 1963 (4) SA 459 (14).  See alsoR v Thibani 1949 (4) SA 720 (A). He did not know exactly what transpired during the shooting.   He remembered leaving the room with is wife and being given back the gun by his wife whilst outside.  Thus in a nutshell Accused claims to have acted in self-defence.  Indeed he did not give any other circumstances. Mr Molapo’s view was that the hitting out with a plank was the aggression on the part of the Deceased.

 

 

29.    As Miss Khoboko agreed, it is trite law that the Crown has to prove its case beyond a reasonable doubt. Whether or not intention to kill on the part of the Accused has thus been proved it is a matter for determination by the court as in every similar court case.  Counsel said that in the present case there is a clear manifestation of Accused’s intention to kill the Deceased.  One has to merely observe the number of wounds inflicted on the Deceased.

30.    In support of above Counsel went on to say that the evidence of (PW1) was to the effect that she heard multiple gun shots being fired in room No. 2.  This is confirmed by many wounds observed and noted both by the doctor who performed post-mortem examination on Deceased’s body, and the police officers who attended scene.  Counsel argued that it was equally clear that his pointing out (a 9mm pistol) at him was not merely toward him off or maim him but to kill him. Regard had to be to the location (upper body) and number of wounds sustained by the Deceased.  Each of those wounds sustained with a heavy pistol by the Deceased as recorded was aimed at the vital parts of the body, wherein the first bullet or at most two would have been sufficient to tame or frustrate the Deceased’s movement, who allegedly kept on advancing according to Accused’s evidence.  Deceased must have sooner collapsed and fallen to the ground. Wherefore his defence of an attack which was imminent and dangerous should fall off as incredible.  But the only possibly reasonable truth remaining would be, that Accused fired all those shots at Deceased because he wanted him dead.  In most similar circumstances, in Rex v Mokoaleli C of A (CRI) No. 11/2007 the decision if the court-aquo was upheld on page 3 thereof:

“I must say that I find this evidence highly but false beyond doubt.  In my view, a normal human being cannot manage to continue advancing towards and opponent and struggle over a stick with him yet his legs have been broken.”

 

See alsoKhohlane Boi & 13 Others v Rex C of A (CRI) No. 8/2009.

 

31.    It was the Crown’s submission that as a matter of fact the Crown could not indeed show that Deceased’s death was premeditated.  As I found as account, there was no evidence led to show that Accused was from the onset armed with the firearm (i.e as he left his home).  In addition as I concluded the reason Accused and his wife ended-up being on the same side of the town, the very same day the Deceased was brutally killed may have been a coincidence as alleged by the Accused.  This I say in the absence of evidence to the contrary.  That cannot however, prevent the court from inferring that all the so called coincidence caused anger and the following up that led to the shooting which was actually not pre-planned.  Thus, the Crown urges the court however to infer that Accused must have, when seeing that his wife had not gone to Masianokeng as she had indicated, she must have been “up to mischieve”.  He strongly suspected something.  So Accused thus decided to keep a close watch on her moves since that time that day and of which was done surreptitiously The motive was to see where and why his wife was going in that direction. The intention was to discover what his wife was up to.  In Rex v Peverett 1950 AD 213 Watermeyer JA rejected the argument that as a general rule the person’s motives, whether good or bad are irrelevant to criminal liability and held thus:

 

“Evidence of the Accused’s motive in committing a crime is admissible and may prove important in implicating the Accused in the commission of the crime or establishing intention.”

SeeS v Hartmann 1975 (3) SA 532 (c) and Principles of Criminal Law by J Burchell and J Milton (1^st Edition) at page 249 – 250.

 

32.    The Crown had urged the court to look into whether or not Accused brought the murder weapon in this case with him, or found it by the side table as he alleges, this factor still had to be determined.  And can be determined from all evidence put before this court as to which one could be reasonably and possibly true.  The difficulty with this was that on this aspect it was the uncontroverted evidence of the Accused alone.  That he found the gun having seen the gun on the table, then and took it.  It was his wife’s gun.

 

 

33.    The Crown submitted therefore that inasmuch as it has led no evidence to show that Accused actually had himself been armed with the 9mm pistol from the beginning, nevertheless what follows then from Accused’s version of the events of that day is that he followed his wife to where she was headed not by mere chance.  He surely knew that, for whatever his wife was up in the direction, it was not with good intention.  For she had lied about Masianokeng and there she was at Ha Tšosane, so the only reasonable inference that the court can draw is that, though it was not stated in evidence before court Accused must have had reasonable suspicion of someone meeting with his wife.  Hence Accused made it a point to follow them up. Knowing, of course, that the Deceased was a police officer he armed himself with the gun.  The more reason he could still be seen holding the firearm as he came out of the room.  Barring for suspicion and the motive for following his wife, I somewhat found it difficult to follow the reasoning (of possession of the gun) as being a little convoluted for the following reasons. 

 

 

34.     The proved facts could only be that the gun was found in the Room No. 2 already occupied by Deceased and Accused’s wife.  It was difficult to allow for any other unproved version whatever (otherwise) one could strongly  suspect.  We end up with Accused’s story that he saw his wife by chance along his way to Ha Tšosane.  It cannot have been proved that he had intentionally “armed himself with the gun”.  Indeed he may have come out of the room holding the gun about which aspect he vacillated under cross-examination.  This he could not dispute because he had just shot someone.  Whether his wife later wrested his gun from him is neither here nor there.  What is important to record is that there is no evidence that he came with a gun into the room from outside the room.  Whatever the Accused’s motive was once he saw his wife initially embarking from a taxi it remains difficult to believe that he there and then intended to shoot someone.  There may have been an ulterior motive.

 

 

35.    The Crown submitted further that it cannot be held to be true that a person (Deceased) who Accused himself told this court that as he jumped off the bed he headed for the door as to exit, would after he had finally overpowered his opponent and thrown him by the sidetable, would still want to pursue the fight regardless of his prior intention.  Besides it is too far fetched that in circumstances Deceased  who had fallen just by the drawer, presumably after being gunned down, would have pursued the Accused.   I agreed with respect.  In my opinion the Deceased must have been overcome by the effect of the gunshot as early as when the first wound was inflicted.  This therefore in my view does not allow for that the Deceased could have attacked Accused nor offered any resistance.     I noted the two wounds on the head.  In my view even others which were on the upper body could have had the same disabling effect when it is borne in mind that a powerful weapon was used.  It surely must have disabled Deceased from the word go.

 

 

36.    The Crown found it ludicrous that Deceased who was taken by surprise had long been in the room relaxed and well aware of arrangement of things in that room, to have been stupid enough according to Accused to have still wanted to fight him.  It was accordingly submitted that the court should reject this part of evidence as untruthful.  The inference should be that at no time that did the Accused intend to act in self-defence.  Certainly once he started to shoot the Deceased, Accused could no longer have been acting in self-defence as a result of Deceased’s harmlessness.  The Deceased could no longer have attacked him any further even if he had started which is unlikely.  For the record the Deceased was already defenceless.  I agreed with the Crown that a harmless Deceased was butchered, for absence of a better word.

 

37.    Finally it was the Crown’s submission that the weapon used in this case was a powerful and a deadly effective weapon.  Further that the Accused was no amateur in the use of a gun.  He had been trained as a soldier and obviously he was expected to know basic principles governing the operation of a gun.  It was part of his training. See Phaloane v Rex LLR 1981 (2) 246. In that case the deceased’s hands were tied.  The accused was accompanied by five (5) fellow police officers.  He shot the deceased three (3) times with a 9mm pistol. 

 

“The first shot wounded the deceased on the chest and penetrated the sternal plate and traversed the right lung.  The remaining two shots struck the deceased on the left pariental side, caused diffused fractures of the skull and passed through the brain and the base of the skull. Both the bullet wounds in the head were fatal and death was instantaneous”.

At page 247 another worthy remark is to be found (Aaron P quoting the Judge a quo):

“He agreed that the pistol used was a powerful weapon and that the upper part of the body was vulnerable.  A police officer with a firearm should not give way to panic.  A firearm should not be used indiscriminately and that shooting to kill should only be used as a last resort.” At page 261. 

 

I thought all those remarks were apposite.  Meaning that Accused appreciated that the Deceased would be killed in that relentless and brutal shooting which is borne out by the number of wounds inflicted on the Deceased.

 

 

38.    Thus, it was the Crown’s submission that the Accused had failed to establish a defence exonerating him from the commission of the crime with which he stands charged.   It would have been different if the Accused had said that due to extreme provocation he had not been aware of any of his actions until only after the act was completed.  The Crown then moved this court to find the Accused guilty of murder for indeed he possessed the requisite intention for the charge of murder to succeed.  I agreed with respect.

 

 

39.    In the circumstances of this case, as I find, the Accused is guilty of the crime of murder with the direct intention (dolus directus).

 

 

My assessor agrees.

 

---------------------

T. E. Monapathi

Judge

 

 

 

For Crown                       :               Miss Khoboko

For Accused                    :               Mr. Molapo