CRI/T/34/86

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

JOSEPH
MOABI LEBALLO

Before
the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the 5th
day of May, 1988,

For the
Crown : Mr. L.L. Thetsane, Senior Crown Counsel

For the
Accused : Mr. N.A. Matete

JUDGEMENT

Cases
referred to:

(1) R v
Poteradzayi (1959)2 SA 125 (F.C.).

The
accused is charged with the murder of Moitheri Nthonyana on 20th
April, 1986 at Thibella in the Maseru district.

The
defence concedes that the accused caused the death of the deceased,
by discharging a loaded shotgun at him, at a distance of
two paces,
resulting in an entry wound on the deceased's forehead and the
shattering of the right side and right base of the skull,
presumably
causing instant death.

The
deceased apparently had some knowledge of repairing radios and had
accepted the accused's radio for repair. It seems that the
radio
required spare parts. Almost two months had elapsed without the radio
being repaired. The accused then decided to take it
to Bloemfontein
to be repaired there. He called to the deceased's residence on 20th
April, 1986, but found only the deceased's
wife 'Mapaulinah Damane
there.

The
latter testified that the accused was wearing a multi­coloured
patchwork blanket, a distinctive garment, which was tendered
as an
exhibit. She formed the impression that the accused had something
concealed thereunder, seemingly a stick. The accused was
quite angry,
as this was his second time to attempt collection of the radio,
having called to the house five days earlier, when
he found the
deceased asleep. In any event, on the second occasion she told the
accused that the deceased had gone to Qoaling.
The accused departed.
In view of his apparent anger she decided to follow him.

Somewhere
outside the house she heard something drop on the ground. She
observed the accused stoop and pick something up, produce
a firearm
and place the object therein.

Thereafter
the accused met a female relative, and enquired the whereabouts of
the accused from her. She supplied him with some

3

information,
and he then ran in the direction of a house owned by one Litlhare at
Bohlasoeng, where beer was for sale. 'Mapaulinah
Damane pursued him,
and arrived at the particular house to find the accused and the
deceased therein, talking to one another. The
accused requested the
deceased to leave the premises and give him his radio. Apparently the
deceased, who by all accounts was quite
drunk, took exception to the
making of such request while he was drinking. The accused suggested
they "go and talk outside",
which they did, followed by
'Mapaulinah Damane.

Outside
the building was a forecourt, and leading therefrom, in the general
direction of the deceased's residence, was a passage,
bounded on both
sides by a barbed wire fence, approximately 4 to 4% feet high on both
sides. 'Mapaulinah Damane testified that
the accused and the deceased
"went to stand at (the) passage", facing each other. There
the accused again suggested that
they go to the deceased's residence,
to collect the radio. The deceased replied that the accused could go
with the witness, so
that she could hand over the radio. It was then
that the deceased enquired as to what the accused was "carrying
in there".
The accused produced a shotgun saying, "This is
my firearm, which you know, for the mountains". The deceased
enquired
"What are you coming to do to me with the firearm?".
The accused replied, "If you don't go and give me my radio I

shoot you". The deceased then exclaimed, "Shoot me!",
whereupon the accused, pointing the gun at the face of the
deceased,
discharged the weapon. The deceased

4

fell.

'Mapaulinah
Damane testified that she ran into the drinking-houae to raise the
alarm. She then ran to the nearest police station
to report the
matter. Whilst at the police station the accused arrived, carrying
the firearm and the blanket. He surrendered both
to the police,
placing them on a table. The accused then asked her, "Have I
shot Moitheri?" She replied that she did
not know, but that the
deceased had fallen down. On her return with the police to where the
deceased lay, he was found to be dead.
The body was removed to the
mortuary, the accused travelling in the police vehicle.

A
neighbour of the deceased, Puseletso Tale, corroborated the
transaction at the house of the deceased. She testified that she
observed the accused, wearing the patchwork blanket, running into the
deceased's yard, where he spoke to 'Mapaulinah Damane at her
doorway.
She observed part of the firearm projecting out through the top of
the blanket which the accused wore. Thereafter the
accused emerged
running again. She observed "a black metal" falling down,
and the accused stooping to pick it up and
place it in the firearm -
loading it at the muzzle and not the breach. Thereafter he
encountered and spoke to his relative, subsequently
running off,
'Mapaulinah Damane in pursuit.

Phori
Molotsi was drinking at Litlhare's at the time. He

5

observed
the accused coming to the doorway of the drinking house, wearing the
patchwork blanket. He did not appear to be angry.
He merely called
the deceased outside and the latter complied. Thereafter he heard the
report of the firearm outside. Upon emerging
he observed the deceased
prostrate on the ground and the accused walking away fast along the
passage.

Mokhethi
Sello was also drinking at Litlhare's. He was however seated outside
in the forecourt. He observed the accused, wearing
the patchwork
blanket, going to the doorway of the drinking-house and calling the
deceased, apparently without entering therein.
Both approached him
quarrelling, but over what , he couldn't say. As they passed, he
heard the accused say to the deceased, "You
should be aware that
I am shooting you". The deceased replied "Shoot me if you
want to shoot me". The accused once
more said, "I am
shooting you". For the second time the deceased replied: "Shoot
me if you know how to shoot".

The
witness testified that the accused had led the deceased past him,
heading towards the passage. When the above second exchange
took
place, the accused, still moving towards the passage, turned and
faced the deceased, with the result that he was then moving
backwards
with the deceased advancing upon him. They were then six paces apart.
The accused then stood still as he discharged the
firearm at the
advancing deceased, who then fell to the ground, just at the entrance
to the passage.

6

The
accused testified that he had left the shotgun, a single-barrelled
shotgun (admitted as Exhibit "E" at the trial),
for repairs
at the Victoria Technical College, and had collected it on the way
home from work on 20th April, 1986. The route to
his home took him
past the deceased's home, where he decided to enquire about his
radio. He was not wearing a blanket at the time,
but an overcoat. He
carried the firearm underneath the overcoat, inverted, muzzle
downwards,with the butt projecting above the
neck of the overcoat.

Upon
enquiry at the deceased's home the latter's wife told him the
deceased had gone to Motimposo. He ultimately found the deceased
at
Bohlasoeng, where he but called him from the doorway to come and
"have a chat" about his radio. The deceased was a
bit
annoyed, saying, "this wasn't the place to come and look for my
radio". "We were both going towards the passage",
the
accused said. The accused continued, "I thought we were going
towards his house, near the passage. He was in front".
The
deceased observed that the accused was "pestering him about the
radio, that I must go".

The
accused's evidence can thereafter be summarised thus:

"In the meantime I saw him put a hand in his pocket. I could see
him raising his hand. I moved back. I asked

7

him what he was trying to do. He replied I was pestering him about
the radio and I must go. He was facing towards me. He was advancing

towards me. He had turned towards , me. Then I retreated backwards
saying "Don't do that. What are you doing to me. I will
shoot
you."

I had a
gun. Exhibit "E" is the gun. He did not stop. He advanced
fast towards me, I did not stop but I was stopped by
the fence when
moving back.

I said I
would shoot. The deceased said "Shoot if you know how to shoot".
Me were in the middle of the passage, both of
us.

The
second time when I said "I will shoot you", I was caught by
the fence. The deceased was coming at me, very fast. At
that stage I
opened fire. He wasn't very far away - as far as the recorder (two
paces indicated). He was rushing at me with his
hand just over his
head. I couldn't make out what it was. I don't have good eyesight."

The
accused testified that he did not know whether the "bullet had
struck the deceased, as it was "a bit dark." Thereafter
he
reported to the police.

8

The
accused explained that he feared to turn and run away from the
deceased, as the latter might pursue him and "stab me with
a
knife". In any event, the fence stopped him from running away.
In particular he denied wearing the patchwork blanket: he
had taken
that from his house only when the police had told him he would be
placed in a police cell.

I found
the prosecution witnesses to be all credible witnesses. The
deceased's wife must be regarded as a witness with an interest
to
serve. Nonetheless her evidence is corroborated by the other
witnesses, particularly Mokhethi Sello. I observe that the latter
was
a friend of the deceased. Nonetheless, despite a vigorous
cross-examination by the learned Attorney for the defence Mr. Matete,

he was unshaken. I found him to be a convincing impartial witness.

Mr.
Matete points to the unlikely evidence of Puseletso Tale, concerning
the insertion of the object which fell on the ground, into
the muzzle
of the shotgun, which of course, as the accused testified, is loaded
at the breach. The witness could well be mistaken.
Her reference to
the cartridge as "a black metal" and her handling of the
weapon in court, indicates that she is not
familiar with firearms.
Suffice it to say that I found her to be an impressive witness and I
am satisfied that she did not attempt
to mislead the court on the
point. There is also 'Mapaulinah Damane's evidence. Their joint
evidence on the point bears a ring

9

of truth
about it.

As for
the accused, his evidence contains many inconsistencies and
contradictions. He was a most unimpressive witness.' He was subjected

to a vigorous cross-examination by the learned Crown Counsel Mr.
Thetsane. In cross-examination he testified that it was he who
led
the deceased towards the passage and not vice versa, as he had said
in examination-in-chief. In chief he said no more than
that the
deceased had raised his hand (though he did say he was afraid of
being stabbed with a knife if he turned and ran), but
in
cross-examination he said that he had seen "something blackish"
in the deceased's hands. At the end of his evidence,
when questioned
by the Court, he enlarged his evidence again, saying "I could
see a weapon", that is, held by the deceased.
He had earlier
said that it was 7.30 p.m. at the time. The balance of the
prosecution evidence was that it was 6.30 p.m. approximately.
The
accused denied that the street lighting illuminated the scene. He
said "it was dark", stating however, despite it
being 7.30
p.m. in the month of April, that it was no more than being "a
bit dark". Later on he said it was "already
dark".
Despite being able to see a weapon in the deceased's hand however,he
did not observe whether or not the deceased had
fallen down.

As to the
deceased's attack upon him, he subsequently enlarged his evidence,
saying the deceased had rushed at him twice, the

10

first
time "before we got into the passage": the accused did not
elucidate upon the outcome of the deceased's first rush
upon him. "On
the second occasion", he said, "we were in the passage. He
rushed a second time and then we were in
the passage" . If of
course the deceased had led the accused, as the accused first
testified in chief, that would indicate
that they never reached the
passage and that the accused was retreating in the forecourt, to the
relative safety of the drinking-house,
and could not then have been
caught up in any fence. But as I have said, the accused changed his
evidence on the point.

The
accused denied that he had loaded the shotgun beforehand. Despite
testifying that it takes a minute or two to load the shotgun,

subsequently narrowed by him to one minute, he testified that when
the accused rushed at him from a distance of five to six paces,
he
loaded the shotgun and fired. I am not satisfied that it takes as
much as 60 seconds to load and discharge a single-barrelled
shotgun.
I am satisfied however, as a notorious fact, that it is not possible
to do so, that is, to 'break' the shot-gun, insert
a cartridge in the
breach thereof, close and discharge it, in the time that it takes
even a drunken man to dash a distance of five
to six paces. It was
not possible for the accused to have loaded the firearm in the
circumstances which he described, and I accept
the joint evidence of
'Mapaulinah Damane and Puseletso Tale on the point.

11

There is
of course the salient aspect of the blanket. It was never put to any
of the prosecution witnesses that the accused wore,
not a blanket,
but an overcoat. Indeed, I do not see how such question could be put.
At the very opening of the case the deposition
of Trooper
Mokalanyane, taken at the Preparatory Examination, was formally
admitted by the defence, though the accused subsequently
resiled
therefrom in cross-examination. The deposition disclosed that when
the accused reported to the Trooper at the police station,
he handed
over the shotgun and the blanket to the Trooper. 'Mapaulinah Damane
corroborated the evidence of the Police Trooper.
The denial of
wearing the blanket has all the appearance of being an afterthought
by the accused himself. His evidence that he
fetched the blanket from
his home when advised by the Investigating Officer Det. Sgt
Nolutshungu that he would be placed in a police
cell, does not seek
to explain why the police should then take possession of. the
blanket, a point upon which the accused made
no comment. Mr. Matete
was then very properly constrained to submitting, that the accused's
evidence on the point cannot be correct.
In all the circumstances, I
find that the said evidence cannot reasonably possibly be true and I
accept the prosecution evidence
and the formal admission on the
point.

The very
aspect that the accused handed over the blanket with the gun to
Tpr.Mokalanyane is significant. If there was nothing sinister
in the
wearing of the blanket, why then should he

12

voluntarily
hand it over to the police? Again, why deny the wearing of the
blanket, if there was nothing sinister therein? The accused
would
have it that he was innocently en route from work in Maseru, and from
the Victoria Technical College, with the firearm, when
he chanced to
pass the deceased's residence. If he was en route from Victoria
Technical College with the firearm how did he come
to bear with him
at least one cartridge? If the gun had been left in for repair, what
was the necessity to carry a cartridge?

Suffice
it to say that on the totality of the evidence I am satisfied that
the accused wore the blanket in question, and that he
wore it for one
purpose only,namely to facilitate concealment of the shotgun. I am
satisfied beyond reasonable doubt that the accused
bore the firearm
unloaded initially, but that it was loaded when he approached the
deceased, concealed under the blanket.

While
'Mapaulinah Damane may have embellished her evidence as to the
deceased standing still throughout the confrontation, there
is the
evidence of Mokhethi Sello to support her evidence that the deceased
never bore any weapon, and never attacked the accused.
It was
Mokhethi Sello's evidence that both the accused and the deceased were
heading towards the deceased's house, with the accused
in front; when
the accused turned to face the deceased, the deceased "kept
coming towards him" (the accused), he said;
the witness denied
however that the deceased attacked the accused.

13

Further,
there is no evidence that any weapon was ever found beside the body
of the deceased. The accused testified that the passage
was wide
enough to admit two persons walking side by side. Mokhethi Sello
testified that it was 8 to 9 feet wide, wide enough,
he said, to
admit a motor vehicle. He testified indeed that the accused was
nowhere near the barbed wire and was in the middle
of the passage.
Further, he and the other witnesses testified that the deceased was
very drunk; indeed, as Mokhethi Sello put it,
"he was staggering
with drunkenness."

I do not
accept the accused's evidence that he believed that 'the deceased
bore a weapon. The other witnesses, standing at a distance,
could
clearly see, as did the deceased, the firearm in the hands of the
accused. They saw no weapon in the hands of the deceased;
Mokhethi
Sello indeed testified that the deceased wore short sleeves and he
could all the more easily have seen any weapon he bore.
As I have
said, there is no evidence that any weapon was subsequently found at
the scene. The accused's evidence on the point was
inconsistent and
vague. It cannot be reasonably possibly true that he could see the
accused put his hand in his pocket and raise
his hand, bearing a
weapon therein, but yet could not see whether or not the accused fell
after the discharge of the shotgun. Without
saying so, the accused
suggests that the deceased bore a knife; the deceased could not have
taken an open knife from his pocket,
and the accused made no mention
of the deceased pausing to open any clasp knife. Further, it was the
accused's own evidence

14

that he
led the way towards the deceased's home. He could not therefore have
observed the deceased, five to six paces to the rear,
perform any
aggressive movement, unless he had, while moving backwards, turned to
face the deceased, which is entirely consistent
with the prosecution
evidence of turning and producing the shotgun.

The
accused is clearly not telling the truth when he says that he loaded
the shotgun and discharged it when the deceased rushed
at him. Indeed
I cannot see that he could even have produced it, and discharged it
in that space of time. Both the accused and
the prosecution witnesses
testified that the shotgun was protruding from the accused's clothing
and the deceased, as I have said,
must . also have seen it, an
aspect' which is supported by the defence version put to 'Mapaulinah
Damane (and by her evidence),
namely that the deceased had said to
the accused, "What's that you have?" All the evidence
indicates therefore that the
accused had at that stage turned towards
the approaching deceased, following him from the direction of the
drinking-house, and
had immediately before or immediately thereafter
produced the shotgun. In this respect the first version by the
accused, that is,
that the deceased led the way towards his home, is
significant: thus the accused testified that it was the deceased who
turned
towards him and not vice versa, thereby indicating that it was
the deceased who initially displayed aggression.

15

If the
deceased had preceded the accused, he would not then have seen the
shotgun protruding from the accused's clothing, and would
have no
cause to make any enquiry in the matter. The latter enquiry however
was admitted by the defence. It cannot be true therefore
that the
deceased preceded the accused. Further, I am satisfied that the only
reasonable inference to be drawn in the matter is
that the accused at
first gave such evidence in order to indicate that it was the
deceased who was the initial aggressor, but resiled
from that
version, realising that thereby his subsequent alleged retreat was
altogether away from the direction of the barbed wire
fence, which he
alleged had impeded his retreat.

When it
comes to being impeded by the said fence, the accused's evidence is
again vague and varying. At first he said he was "stopped
by the
fence", then that the fence "stopped me from running away".
In cross-examination he said that he "got
caught up in the
fence"; finally he said that "my overcoat caught up by
fence". It had been put to Mokhethi Sello
in cross-examination,
however that the accused had "tripped against a fence", a
somewhat different version. Further,
it was never put to 'Mapaulinah
Damane that the accused had even reteated, much less that he was
caught up in any fence. The accused
never once mentioned how he
extricated himself from the fence. Mokhethi Sello testified that the
accused, immediately after shooting
the deceased, walked away from
the scene. Phori Molotsi, alerted by the discharge of the

16

shotgun,
came out of the drinking-place to observe the accused "walking
fast" down the passage between the fences. There
is no
indication there that the accused spent any time extricating himself
from a barbed wire fence.

Suffice
it to say that on the totality of the evidence, the only reasonable
inference is that the accused stopped and turned towards
the
approaching deceased and produced the loaded shotgun, I am satisfied
beyond reasonable doubt therefore that he was the initial,
and indeed
the only aggressor. It cannot be reasonably possibly true that the
deceased was armed, nor indeed that the accused made
an essential and
genuine mistake in the matter. In any event, even if such was the
case, the accused produced a loaded shotgun,
some five to six paces
from the deceased: in all the surrounding circumstances, that can
only have in itself constituted an assault:
even if the deceased
under those circumstances rushed armed at the accused, his reaction
would constitute reasonable and necessary
self-defence. In brief, the
accused approached the scene with a concealed lethal weapon. It was
he who took the assault to the
drunken deceased. He cannot then be
heard to say that he acted in self-defence.

On the
totality of the evidence, the only reasonable inference to be drawn,
is that the accused bore the firearm with the preconceived
intention
of at least threatening the deceased, in order to secure the
immediate return of his radio. He encountered

17

a drunken
and uncooperative deceased however, who instead of being cowed by the
production of the firearm, demonstrated a drunken
bravado, which
perhaps frustrated and infuriated the accused even more. As the
accused himself said in cross-examination,

"Had the deceased agreed to give me my radio this would never
have happened."

When the
accused was challenged by the deceased to shoot, he did just that.
Suffice it to say that I am satisfied beyond reasonable
doubt, as the
only reasonable inference, that the accused did not act in
self-defence.

While no
doubt the accused may well have been frustrated and even infuriated,
I cannot see how an ordinary person of his community
could have been
provoked, in the circumstances. I am satisfied indeed that the
accused was not provoked and that in any event his
reaction was out
of all proportion to any imagined provocation.

As to the
accused's intent, I am not satisfied that he determined beforehand to
kill the deceased: I am satisfied however that initially
he intended
at least to intimidate or threaten him. It was his evidence that
ultimately he fired the shotgun, which he had used
beforehand and
which he acknowledged was a lethal weapon, at a distance of little
more than two paces from the deceased.

18

There is
his enquiry of the deceased's wife at the police station as to
whether he had "shot" the deceased. The point
is that he
left the scene of the crime immediately after the deceased had
fallen, and must have realised that in the least he had
wounded the
deceased. It may be that his enquiry of the deceased's wife was
false, intended solely for the benefit of the police.
Again it may be
that he intended to use the word "kill" rather than "shoot"
and that he was enquiring as to
whether or not the deceased was dead.

I
consider that the accused must be given the benefit of the doubt in
the matter, and I accept that his enquiry of the deceased's
wife was
genuine, and indicated a lack of intention to kill the deceased. I
find it difficult to conceive however how he could
have discharged
the shotgun, the muzzle a little over a pace from the deceased,
without realizing that death could possibly result.
There is the
aspect however that he produced the firearm upon being angered, that
he fired suddenly. In the case of R. v

Poteradzayi
at p.129 Briggs F.J. observed:

"the previous deliberation and preparation coupled with failure
to give assistance and the absence of any signs of surprise,
regret
or sympathy, are relevant."

As to the
latter aspects, the accused's enquiry at the police station, to which
he must have voluntarily gone almost immediately.

19

must
weigh in his favour. To say the least of it, I am at the end of the
day in reasonable doubt in the matter. I am not satisfied
therefore
that the accused subjectively foresaw the possibility of death and
acted recklessly in the matter.

The
Assessors agree with my findings. Under the circumstances I find the
accused not guilty of the charge as laid, but guilty of
the offence
of culpable homicide and convict him accordingly.

Delivered
at Maseru This

B.P.
CULLINAN

CHIEF.
JUSTICE

5th Day
of May, 1988