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CRI/T/16/99

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

Vs

MATLOU
MAKARA

JUDGMENT

Delivered
by the Hon. Mr Justice ML. Lehohla on the 2nd day of June, 2000

The
accused stands charged with the crime of murder, it being alleged
that on or about 7th January, 1996 and at or near Com Exchange in the
Leribe District he did unlawfully and intentionally kill one Selala
Putsoa.

The
accused pleaded not guilty to this charge.

The
preparatory depositions of : PW1 Lefeela Abiel Putsoa and PW7
D/Trooper Kharafu were admitted on behalf of the defence and the
Crown accepted the admitted depositions.

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Because
the reasons why the post mortem report of Doctor Ali who examined the
deceased did not accord with provisions of Section 227(1) of the
Criminal Procedure and Evidence Act 7 of 1981 the Crown was put under
the necessity to call PW8 Mr Lebeta the Senior Prosecutor who had led
evidence at the Preparatory Examination of this case. It was thanks
to PW8 that the Court learnt that actually the doctor who had
performed the post mortem examination on the deceased was a foreigner
and had long left Lesotho for good at the time the Preparatory
Examination was held. The evidence of PW8 therefore gave a different
complexion to the Magistrate's inadequate and blunt statement
recorded at page 9 of the Preparatory Examination record that "the
Senior Public Prosecutor informs court that the medical doctor who
carried out the post mortem upon the deceased herein is not able to
come to court". Emphasis supplied by me.

I may
just point out that among acceptable reasons set out in Section
227(1) the one indicated in italics above forms no part.

The
admitted evidence of PW1 is to the following effect: viz the deceased
was his son. He gave the son's age as 19 years. PW1 received a report
of his son's death and attended the post mortem examination conducted
on the deceased on 26th January,

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1996.

PW1 later
buried the remains of his son.

The
admitted depositions of PW7 could be summarised as follows : PW7 is a
Detective trooper who at the time was stationed at Maputsoe Police
Charge Office.

While on
duty on 8th January, 1996 he received a report from Corn Exchange. He
immediately set out for Com Exchange. He met the accused at the
latter's home. He asked him for an explanation after introducing
himself to him, explaining the nature of his business there that day
and giving him the necessary warning against self-incrimination.

The
accused handed over to PW7 a "Lebetlela" stick which he
explained he had used in a fight with the deceased.

PW7 took
away the stick which he hoped to later hand to the court below as an
exhibit but unfortunately failed to find it from the place of custody
in the Police store-

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room for
exhibits.

PW7 was
also handed a home-made knife by the accused who said it belonged to
the deceased. This was handed over in the court below and marked
Exhibit "1".

PW7's
further investigations of the case revealed that the deceased had not
used this knife in his fight with the accused. He accordingly
arrested the accused and gave him a charge of murder of the deceased.

PW5
Kapare Ramaqele gave sworn evidence before this Court. He said he
stayed at "C.X" at Mafotholeng. He knew the deceased as
they stayed in the same village. He said he knew the accused in the
same way.

Asked to
relate the events of 17-01-95 if he knew and could recall them he
said that he, the deceased and PW6 Isaac Lieta were seated under a
tree shade. The tree belonged to PW4. This was during the day.

While
thus seated with his companions mentioned above PW5 saw the accused
come and go past where they were. The accused came from the direction
of his home

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leading
to Moeketsi's shop. When the accused was going past nearby the
deceased asked 50c of him and the accused's response was in the
nature of a question whether the deceased knew him to be working. The
deceased responded by saying it was not because the accused was
working that he was asking 50c of him. All it was, he explained, was
just that he was asking for it.

The
accused then made for his place of employment at Mamoeletsi's place
where he was a hired herdboy looking after stock. At the time the
accused was not carrying anything in his hands.

The trio
stayed for a while there. But after some thirty minutes the accused
emerged in company of three dogs also carrying a stick while at the
same time shouting that Selala the deceased should wait there. To all
appearances as far as PW5 was concerned the accused seemed to be in a
fighting mood. PW5 testified that the trio ran away when they saw the
accused approach in the manner just described. PW6 corroborated the
aspect of the trio running away; but he was unable to say why they
did so without immense probing. In fact getting anything from him was
an uphill task. He didn't know where Muvango which he claimed he came
from was. He thought it is in Lesotho though you have to go past
Pretoria from Maseru to reach it.

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Further
that the Republic of South Africa is in Lesotho. Indeed the Court
recalls its own agony it underwent in order to drag from him if the
pace kept by the accused when next he approached was the same as the
former and whether it wasn't in fact the carrying of the stick and
the increase in the pace that caused them to run away. His evidence
is thus dismissed as of a dullard who didn't know what his business
was in Court. It dawned to this Court that this was so during the
first five sentences he uttered when asked to testify. Though to me
he looked hardly 21 he insisted that he was aged 82. Asked if he
thought he is the same age or older than one of my assessors who is
80 he realised that he had exaggerated his age by an enormous margin
albeit that he is illiterate. The tenor of his evidence did not
detract from such flights of fancy as pointed out above. The
disturbing feature was the facility with which he churned it from his
mouth.

However
the clear testimony of PW5 inasmuch as it has the ring of truth to it
and supported as it is by logic and common sense seems to be enough
to be relied upon as giving assistance to the Court in its endeavour
to discover the truth in this matter.

PW5 said
the accused who appeared to be in a fighting mood was less than a

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100
metres from the trio when he shouted. This coupled with other factors
mentioned

above
makes sense as to why the trio ran away.

PW5 said
the deceased and PW6 ran towards Moeketsi's home while he himself ran
in a different direction towards the comer of Stanley's yard. It is
while in this position that he was able to see his two companions as
they ran away. He couldn't at this stage see the accused because he
was obstructed from view by Stanley's house and trees immediately
around it. However the accused was still shouting for the deceased to
come so that they could talk.

PW5 saw
the deceased go down through the gate; and as PW5 had climbed the
rise from the comer he had turned the deceased and the accused fell
within his view. They were standing and were not far apart, he said.
In fact the distance separating the two was given as one metre; while
PW5 who was observing all this was 50 paces away at the time. PW5
says the accused was shouting and saying in a raised voice "do
you know me to be working". Saying so the accused had raised his
stick at the deceased.

Then PW5
said he saw the deceased take from around his waist something

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shiny.
Then the deceased turned and ran away. The accused gave chase.

But when
the deceased ran past Maletlala's hut he tripped and fell. The
accused was chasing after him still. He caught up with the deceased
and fetched him three blows with a stick.

PW5
called for Moeketsi the owner of a nearby shop to come and help. When
Moeketsi came out PW5 who was just a small boy in a state of fright
ran away. He learnt later that the deceased was taken to hospital. He
said the nearest he came to the scene when he made the observation of
the blows he saw being delivered was about 20 paces.

Told by
Mr Mpaka for the defence that the accused's story is that the accused
didn't respond when deceased asked 50c of him first time ever PW5 was
adamant that the accused's response was "Do you know me to be
working".

PW5
denied that the accused proceeded without responding to where he was
staying.

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PW5
denied that from where the accused was staying the latter was going
to the shop to buy chewing gum.

The story
put was that the stick the accused was carrying was Potlaki's and he
was returning it to its owner.

PW5's
story regarding the presence of dogs which the accused denies is
worthy of credit in that he didn't tend to exaggerate the viciousness
of the dogs when asked by the court how big they were. Asked how big
was the biggest of the dogs he demonstrated "2½ feet
high".

"Were any of them vicious-looking or were they ordinary
dogs........? They were ordinary.

But you told me you feared them hence you ran away. Why then if they
were that ordinary.......? The way he was walking and the fact that
they seemed to be heading for the person".

The
evidence of PW5 is satisfactory in this regard because he had earlier
indicated that the accused was making for the spot where the trio
were seated at a 10 heightened pace. He also was able to give a
common sense therefore acceptable answer to the question put to him
that "the accused couldn't have been accompanied by dogs because
he owns none" by saying "Those dogs were used to him
because they belonged where he was employed".

It is
true that the Preparatory Examination record does not reveal PW5 as
having mentioned the question of dogs accompanying the accused. But
the probing by questions asked in this Court even though done so many
years after the event evoke memories which nobody bothered to evoke
in the Court below. Thus it is of importance that the Court at this
stage observes closely the demeanour of the witness while responding
to questioning in order to guard against embellishing of the story
that puts the adverse party falsely in dim or bad light. I am
confident that such cannot be a valid criticism to level against Pw5
whose evidence I accept as satisfactory.

PW5
denied that it was at this stage that the accused for the first time
ever asked "Hey man do you know me to be working".

PW5 says
he didn't hear the deceased respond and say "Hey man are you
cheeky or resistant". Indeed from the pitch of voices and given
the distance that PW5

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was from
the two he would have heard if the deceased offered any such
provocative utterance to the accused. I reject it as a made up story
to seek false justification for the assault meted out at the
deceased. Likewise I reject the suggestion that the deceased looked
furious to the accused because the accused had said "monna"
to him yet the accused being younger than the deceased was being
disrespectful to say "monna" meaning "man" to the
deceased because if this was uttered PW5 would have heard it and he
said he didn't hear the accused say "monna" to the deceased
nor the other take objection to the supposed utterance.

The story
continued to be put to PW5 that in the context of what appeared to be
the deceased bent on giving the accused his desserts, is to me
farcical indeed. The accused armed with a stick, standing a metre
away from the deceased, and in company of his dogs the mere sight of
which had caused the trio to run away in panic wants the Court to
believe that the deceased was taxing him with insubordination yet
hardly a second afterwards he turned tail and fled from the
supposedly insubordinate accused

PW5's
story is worthy of credit also because he didn't seek to conceal the
fact that the deceased drew some shiny object from his waist. But if
this turns out to be

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the
knife that was handed in in the Subordinate Court its role was
absolutely minimal.

It
appears to me that the deceased only drew it to buy time within which
to turn and run away from the accused who seemed bent on assaulting
him for asking for 50c of him when the deceased knew he was not
working.

PW5
denies that the deceased turned and faced the accused and said to him
I can kill you. Asked how he can deny this yet he was so far away he
said the voices -of the duo were high-pitched; thus if such words
were uttered he would have indeed heard them. I accept PW5's attitude
and explanations without any reservation.

The
accused's story is that he was 18 years at the time of events in this
case herding after stock at Corn Exchange. He says he is illiterate.

One day
in 1996 he left home for the village centre. When he returned from
there he met the trio mentioned earlier. One of them Selala asked for
50c from him. The accused says he ignored him and went past without
replying. The deceased said "hey man I am talking to you".

The
accused having reached home and spent about 45 minutes remembered
that

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he was
still having Potlaki's stick which the owner had lent him. He there
and then made for Potlaki's home without the stick for his idea is
that he was going to see if Potlaki is there and if he was he would
invite Potlaki to accompany him to the home of the accused to fetch
the stick with him.

The
accused said he took a different route from the one which goes past
the trio. Failing Potlaki at the latter's home the accused returned
to where he stayed. On his way he met the trio where they had always
been. The deceased again asked for 50c from the accused. It is then
that the accused said "Hey man I don't have money. Tarn not
working:" The deceased in reply said I shouldn't call him "man".
The deceased further said go away with that little money of yours and
ended with uttering the abusive phrase "your mother's .... I see
you think you are better". The accused says he let him be and
parted with him and went home only to come back 45 minutes later.

This time
carrying Potlaki's stick. Carrying it to its owner.

It is to
be wondered why this time he parted from his rule of leaving the
stick and go and find out if Potlaki is there so that if he was the
two should go and fetch it from the accused's home.

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Coupled
with the fact that none of the things the deceased is said to have
said to provoke the accused it is not beyond imagination of this
Court that because the accused had resented being asked for 50c by
the deceased he felt this time that Potlaki's stick would come in
handy. Hence his departure from the rule he had set for himself
accompanied by an increase in his pace and a pack of dogs this time.
It would not be wrong, gathering from the evidence and facts of this
case to conclude that the accused felt it was about time he knocked
the stuffing out of what he felt to be a demeaning form of behaviour
on the part of the deceased.

The
accused's story is a long rambling tale devoid of substance. Indeed
when confronted with the crucial question why it is that the blows he
said he effected on the deceased's hands were not recorded by the
doctor who performed the post­mortem the accused was clearly in a
cleft stick and dumb-founded.

His
reason for chasing after the deceased who was running away and
therefore out of the fight even supposing he was ever part of it
holds no hope for anyone seeking to rely on self-defence. No one can
defend himself from another who is fleeing.

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The
heavy blows which landed on the vital part of the body with fatal
consequences are not indicative of light use of force, or force that
was tempered by a fall on arms as well. Had that been so then there
wouldn't have been a depression and crack on the deceased's skull.
Instead the arms and hands where the blows landed would have borne
out that aspect of the matter.

The
accused however told the Court that he chased after the deceased with
the "purpose of disarming him in case he would turn at some
later stage and stab him with the knife. The accused is in this
connection deliberately oblivious of the fact that this interval
would have profitably been utilised by him approaching higher
authorities about the threat that a knife in the deceased's continued
possession holds for him.

The
post-mortem report states that the deceased's body was examined on
22nd January 1996. The cause of death is said to be head injury.

The
external appearances revealed laceration of the right eye brow; and
laceration of the occipital region. The skull is shown as having had
a depressed fracture. The right temporal bone was affected plus
subdural haematoma.

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Given
that the laceration on the right eye-brow is a good distance away
from the depression on the occipital region which is at the back of
the skull, the accused's story cannot be true that the head injuries
were caused by only one blow which, while partly being borne by the
arms and hands, landed somewhere on the head while the first one
aimed too at the knife hand was confined thereto. If only one blow
managed to hit the head then it either landed on the right brow or at
the back of the head. If it landed at the right brow what then caused
the depression at the back of the head? If it landed at the back of
the head what caused the laceration on the right eye brow? The simple
explanation for the more than one injury on the head is to be found
in the evidence of PW5 who said he saw the accused deliver three
blows on the deceased, and in part from Marorisang who on observing
the savagery with which these injuries were effected on a helpless
man asked "are you killing him?" the answer to which by the
accused was a callous "tha1sts exactly what I am doing".

Finally
the unmistakable answer is given by the accused in response to the
Gentleman Assessor on my left (Mr Mohapeloa's) question.

"What provoked you so much and which you felt he deserved a
depressed and cracked head from your blow..........? I don't know
what it was".

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One
gathers from this curious answer a lashing without restraint of blows
aimed at the deceased delivered with blind rage and fury. I reject
that there is any defence of self-defence in this case therefore.

The
position in law is that a man commits murder or unlawful killing if
for no reason or for the slightest provocation he aims blows at the
vital parts of another, and with savage force wields a weapon to
achieve this end or if in pursuit of self-defence he exceeds that
defence by a large margin.

Mr Mpaka
raised important questions to consider in the light of the fact that
the stick wielded is not here and therefore the Court cannot rightly
say force used was savage if in fact light force was applied in using
a heavy stick. While I do appreciate the logic entailed in this
submission 1 cannot ignore the fact that if little force was used
then this does not relieve the accused of the responsibility of
directing it at the vital part of the body.

The
accused is found guilty of murder as charged.

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My
assessors agree.

JUDGE

2nd June,
2000

For Crown
: Mr Kotele

For
Defence : Mr Mpaka

EXTENUATION

The Court
heard during the extenuation phase of the trial that the accused at
the time of the commission of the offence was aged 18.

It was
submitted that the accused did not initiate the fight. I disagree
with this submission. The mere fact that the deceased asked 50c of
the accused cannot in my view be tantamount to initiation of a fight
I have taken into account that the accused has no educational
background.

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The fact
of his youth in my view even standing on its own without interaction
with other factors submitted would tend to entitle the accused to a
finding that extenuating circumstances exist in his case.

The Court
so finds.

With
regard to Mitigation of sentence the Court accepts that that the
accused has no previous records of criminality. It is important that
he be given a second chance. It may well be that if a proper sort of
sentence is imposed it would help fulfil a rehabilitative purpose in
the accused's life. The Court takes into account the period

spent in
detention before the trial commenced.

He is
accordingly sentenced to five (5) years' imprisonment. My assessors
agree.

JUDGE

2nd June,
2000

For Crown
: Mr Kotele

For
Defence : Mr .Mpaka