CRI/T/30/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

TEBOHO
OFMAN LEKOMETSA

Before
the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the 9th
day of November, 1988.

For the
Crown : Mr. L.L. Thetsane, Mr. S.P. Sakoane

Crown
Counsel

For the
Accused : Mr. S. Moorosi, Chief Legal Aid Counsel

JUDGMENT

Cases
referred to:

1. S v
   Nzuza (1963)3 SA 631 AD

   
   

2. R v
   Sepanya CRI/T/17/77 (Unreported) (3) R v Sekhobo CRI/T/13/88
   (Unreported)

   
   

The
accused is charged with the murder of Maleshoane Mafobole at Ha Ranko
in the district of Mafeteng on 26th April, 1987.

The
defence formally admitted the contents of the depositions of all
eleven prosecution witnesses. who gave evidence at the Preparatory

Examination. The depositions were then admitted in evidence under.

2

the
provisions of section 273(1) of the Criminal Proclamation &
Evidence Act 1981 and read out in Court. The prosecution then
closed
its case.

The
procedure under section 273(1) would seem, at first sight, to be at
variance with section 173(1) of the Criminal Procedure &
Evidence
Act, which requires viva voce evidence. But then that requirement is
qualified by the phrase in section 173(1) "...
save as is
otherwise expressly provided by this Act .....". There is the
authority of S v Nzuza (1) to the contrary,but then,
as the learned
author Hoffman in his work The South African Law of Evidence 2 Ed.
respectfully submits at p.302, the reasoning
in that authority is
misconceived, a position adopted by the late Mofokeng J. in the case
of R v Sepanya (2),which authority I
respectfully adopt. I observe
indeed that the situation in South Africa has been resolved by the
introduction of the provisions
of section 141(3)(b) of the Criminal
Procedure & Evidence Act 1977 - see Hoffman & Zeffert 3 Ed.
at pp.333/334.

The
accused does not dispute that he killed the deceased. The only matter
in dispute is his intentions in doing so.

On the
day in question the accused, aged

3

26 years,
and his two companions Molefi Leballo and Sello Makhele, were herding
cattle at the pastures; at Ha Ranko. They observed
four girls in the
distance. The group consisted of the deceased, aged 19 to 20 years,
her younger sisters Nthabiseng, and Polo
aged 13 years, and a niece
Motlalepula also aged 13 years; the latter three were all schoolgirls
proceeding to school at Sekameng.
The accused and his two companions
left the pastures and approached the girls, as the accused's
companions put it, in order to
"propose love" to them. On
meeting the girls they realised that the two youngest were but
children.

It would
seem that the accused was known to the deceased and the other girls,
as at one stage the deceased and others used the name
'Ofman'. In any
event the two groups met. Molefi Leballo walked ahead, followed by
Sello Makhele who accompanied Nthabiseng.

Meanwhile,
bringing up the rear apparently, the accused was making clearly
unwelcome approaches to the deceased. He caught hold
of her. She
resisted and said she wished to continue on her way. The accused
continued pulling her backwards. He then raised the
stick he was
carrying and struck the deceased on the back. The deceased caught
hold of the

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stick.
They struggled for possession. Eventually she succeeded, through his
desisting or otherwise, in gaining possession of the
stick and
throwing it on the ground.

At that
stage the accused produced an okapi knife from his pocket, and
stabbed the deceased on the left breast. Her three companions

testified that immediately before or after stabbing the deceased the
accused exclaimed, "I will kill you". The deceased

staggered a few pates and fell. The accused wiped his knife in the
grass to clean it and taking his stick left the scene. Sello
Makhele
called out to him that he (the accused) had left his hat behind at
the scene - apparently displaced in the struggle with
the deceased.
The accused returned, collected his hat and departed. His companions
departed for their pastures.

Thereafter
Nthabiseng and the two children with their cries attracted the
attention of a co-villager of the accused, Lits'eoana
Masijane,
approaching with her daughter from Sekameng. She rushed to the scene
and gathered the fallen deceased in her arms. The
children showed her
the wound above the deceased's left breast. She was unable to do
anything for the unfortunate deceased who
it seems breathed her last
in her arms.

5

At 2 p.m.
that same day the accused reported the matter to his father with the
intention of subsequently reporting to the polite.
Later that day his
father accompanied him to the polite post at Ts'akholo where he was
taken into custody.

The body
of the deceased was taken to Mafeteng Hospital, where post-mortem
examination revealed a stab wound about 3 centimetres
in length on
the left interior chest wall at the level of the second intercostal
spate, and a fractured third costal cartilage.
Internally the
peritardium was lacerated, and also the left ventricle near the base
of the heart, with a resultant massive haemopericardium
and massive
left haemothorax. The doctor who conducted the post-mortem
examination opined that death was caused by haemorrhagic
shock and
pericardial tamponade.

The
accused gave evidence. He simply admitted that he had acted wrongly,
but testified that he had no intention to kill the deceased.
In
cross-examination it transpired that he customarily carried a knife,
in order to cut hide straps from sheets of hide, the straps
being
used to tether cattle etc. The Crown was unable to produce the knife
or stick, which he carried on the day in question, as
the exhibits
had been lost in the Magistrate's

6

Court,
apparently when the Court was being transferred from an old to a new
building. Nonetheless the accused described the knife
as being of the
okapi clasp variety with a blade a little less than four inches in
length. While I in no way consider the possession
by a cattle herd of
an okapi knife to be sinister, nonetheless the accused in his
evidence clearly wished to avoid an admission
that a knife can be a
lethal instrument of violence. His evidence is unrealistic in the
extreme, when he would have the Court believe
that not alone had he
never partitipated in the slaughter of a sheep or a goat but he had
never even witnessed an actual slaughter.
Neither indeed had he ever
witnessed the killing of even a hen.

It was
his evidence that he used the knife because the deceased had taken
the stick from him. He denied that he had assaulted the
deceased with
the stick; he also denied that she threw it away despite the formal
admission of the depositions in the matter. In
any event, there is
not an iota of evidence, not even from the accused, that the
unfortunate deceased ever wielded the stick in
her defence. The
accused himself testified that he produced the knife merely to
threaten her. It was then that "I noticed
I had stabbed her",
he said.

7

The
accused also denied that he had ever used the words "I will kill
you". There is the aspect that he made formal admissions
and
then resiled from part thereof, an aspect with which I had occasion
to deal yesterday in this Session in the case of R v Sekhobo
(3) at
p.3. The accused was a most unimpressive witness. His evidence as to
the various]! uses of a knife is clearly false. I cannot
imagine why
the deceased should struggle to gain possession of the accused's
stick unless he had struck her with it, or had attempted
to do so. I
cannot see why he would wish to merely threaten the deceased with the
knife. All the evidence indicates that when his
advances were
rejected, he decided on brutel force, and when he was dispossessed of
his stick by the female deceased in the presence
of his male
companions, he decided to resort to a more lethal weapon: or
alternatively he abandoned possession of the stick in
order to be
free to use the knife. His evidence that "I only saw me taking
it (the knife) out (of my pocket)" is unrealistic
in the
extreme, as is his evidence that he only 'noticed' afterwards that he
had stabbed her.

Even if
it is the case that the accused did say, "I will kill you",
that, as is often the case, is not conclusive. As
the learned Chief
Legal Aid Counsel Mr. Moorosi submits, those words are often

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meaningless
words used in an excess of anger. I agree. For my part I do not see
that it can be said beyond reasonable doubt that
the accused intended
(dolus directus) to kill the deceased.

The
accused however, while being an unsophisticated cattle herd, was
clearly not without guile when it came to cross-examination.
He
admitted to knowledge of the heart's position in the human body and
the fact that injury thereto causes death. The stabbing
was done in
broad daylight, in the early afternoon. The blow must have been
delivered with some force, as not only did it penetrate
between the
ribs, but it also caused a fracture of a costal cartilage. The blow
was delivered directly to the region of the heart,
injury to which
the accused himself admits can cause death. I am satisfied beyond
reasonable doubt therefore that he subjectively
foresaw the
possibility of death and that he was reckless as to such. On the
basis of dolus eventualis, I am satisfied therefore
that the accused
had the necessary legal intention.

I cannot
see that there is any defence to this senseless crime. There cannot
possibly be said to be any form of provocation arising
from the
deceased's valiant attempts to defend her chastity.

9

The
Assessors are in agreement with my findings. I find the accused
guilty of murder as charged and convict him accordingly.

Delivered
at QUTHING This 9th Day of November, 1988.

(B. P.
CULLINAN)

CHIEF
JUSTICE