CIV/T/19/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

MATUTUTSOANA
FEKISI

JUDGMENT

Delivered
by the Hon. Mr Justice Sir Peter Allen on the 5th day of May, 1988

The
accused is indicted on a charge of murdering one Fusi Motsu on 6
February 1987 at Qabane in Mohale's Hoek District.

The
evidence of five prosecution witnesses was admitted and only one
eye-witness was required to testify. On the day in question
the
deceased Fusi Motsu discovered that 11 of his cattle were missing. He
reported the loss to his headman, Sothoana Lefa (whose
evidence was
admitted), and stated that he suspected that the thief was the
accused with whom he was on very bad terms. The reason
for his
suspicion was that the accused had suddenly acquired some freshly
branded horses which the deceased believed had been obtained
by
selling or exchanging his stolen cattle.

That
morning the headman sent for the accused and informed him of the
allegation against him. He then ordered the deceased to accompany
the
accused to the latter's home

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with two
other men, Motsoantoeng Molahlehi (PW1) and one Seeiao. The object
was for the deceased to point out the horses referred
to. The
deceased want to his home first and then caught up with the others
after they had arrived at the accused's home. By that
time the
accused had sent a herdboy to fetch the horses from the veld and
drive them into two kraals there. The accused told them
that all of
his horses were present.

They went
to the first kraal where the deceased pointed out three horses with
fresh brand marks on them. Next they went to the second
kraal where
the deceased pointed out two horses. The deceased alleged that the
horses had been obtained by the accused after selling
the deceased's
cattle. The Accused suggested that they should go back to the first
kraal and point out the horses there again.
According to PW1 they
walked back there with the deceased leading the way followed by the
accused with PW1 walking alongside and
Seeiso at the back. It would
appear that PW1 was not paying much attention at the time because he
did not see the accused pick
up a spear and stab the deceased the
first time. He only became aware of what had already happened when
the deceased cried out:
"Jo, I am dying very cruelly."

PW1
claimed that he then struggled with the accused in order to get hold
of the spear. Apparently he was un­successful in seizing
the
spear and he failed to prevent the accused from stabbing the deceased
in the chest twice more. The deceased fell to the ground
on his side
and he was stabbed again. The accused then went over to the kraal.
PW1 pointed out that when they left the chief's
place the accused was
wearing a blanket and he carried only a stick. He did not know from
where the accused had acquired the

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short
black spear, about one metre long, which was exhibited in Court
(exhibit 1).

When he
saw that the deceased was dead PW1 told Seeiso to remain with the
accused while he (PW1) went to report to the headman.
The headman and
other people went to the scene and examined the body. The accused
told the headman that the deceased had attacked
and struck him with a
stick. The next day the body was placed on to one of the accused's
horses which was led by the accused who
was escorted to Sekake Police
Post. At the police post the body was received by Tpr. Tumi (whose
evidence was admitted) who took
charge of the spear (exhibit 1) and
placed the accused in custody.

The next
day Det. Tpr Chabalala (whose evidence was admitted) came from
pacha's Nek CID office. He collects.! the accused, the spear
and the
body of the deceased and conveyed them all to Qacha's Nek where he
deposited the the body in Machabeng mortuary.

On 10
February 1987 the District Medical Officer at Qacha's Nek carried out
a post mortem examination of the body in the presence
of Det. Tpr.
Chabalala. The body was identified to the doctor by Botala Motsu
(whose evidence was admitted) a brother of the deceased.
The medical
report was admitted (exhibit A) and in it the doctor stated that he
found five stab wounds in the chest, four of which
had penetrated the
heart. Consequently death was caused by excessive bleeding from these
injuries. The doctor was told that the
deceased was aged about 65
years but his own findings were that the apparent age of the deceased
was 50 years. The stab wounds
were made by using a sharp instrument.

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The
accused gave evidence on oath in his defence. He admitted that he was
not on good terms with the deceased and they had each
made several
accusations against the other in the past to the headman. He related
what happened up until they reached his kraals
and it agreed more or
less with the testimony of PW1. However, his version of the actual
stabbing incident differed in some important
aspects from that of
PW1.

According
to the accused it was PW1 who led the way from the second kraal back
to the first kraal. Behind him came the deceased
followed by the
accused. He added that Seeiso was not with them but he had been left
waiting at the first kraal. There was no explanation
offered by the
prosecution of why Seeiso was not called as a witness. PW1 had stated
that Seeiso was following behind them. If
that was correct then it is
surprising that Seeiso was not brought as an eye-witness to the
stabbing. But if what the accused stated
was true then it may be that
Seeiso did not see the actual stabbing and so his evidence was of no
assistance.

The
accused said that he asked the deceased if he had found the horses
that he had been talking about. Instead of answering, the
deceased
turned and struck the accused with a stick on the left cheek and
broke one of his teeth. The accused explained that when
he was first
called to report to the headman he had left his spear (exhibit 1) on
the ground next to the kraal. The blow struck
by the deceased caused
him to stagger and he almost fell down where the spear was lying. He
picked it up in order to ward off further
blows from the deceased. In
this he found he had stabbed the deceased somewhere in the

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chest as
they faced each other. He said that they were fighting and he could
not deny inflicting the other stab wounds on the deceased,
but he
denied stabbing him after the deceased fell down on to the ground. He
then left the deceased and stood over by the first
kraal.

The
accused denied that PW1 tried to intervene. He said that PW1 was not
near enough to them when the stabbing took place, but PW1
came back
afterwards and asked. "What are you doing?" PW1 then went
away to report to the head-man who sent messengers
to fetch the
accused. He went to the headman and handed over the spear (exhibit 1)
and the headman visited the scene with the accused
and arrangements
were made to take the body to Sekake Police Post.

The
accused stated that he used the spear to frighten off the deceased
who had struck him, so that the deceased would run away and
not
continue fighting. But he did not run away as the accused had already
stabbed him. The accused insisted that all the blows
that he
delivered were while the deceased was standing.

The
prosecution made much of the alleged difference in ages claiming that
the deceased was very much older than the accused who
was stronger
and younger. In fact the post mortem report shows that the decease's
reputed age was 65 years but that medically he
appeared to be only 50
years old. Since the accused is 46 years old, there would not appear
to be much age disparity.

The
version of events according to PW1 was that the accused and the
deceased did not quarrel or behave in a troublesome manner that

morning when they moved from the

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headman's
place to the kraals and that the accused's attack was unexpected and
unprovoked.

The
accused's version was similar up to the point at the kraals where he
claimed that the deceased turned round and attacked him
with a stick
which caused him to defend himself and retaliate. I must say that
this seems to me to be the more likely version,
especially as the
accused impressed me as a straightforward witness. He was not shifty
or evasive. He admitted striking the blows
which he maintained were
only meant to be defensive. Quits clearly he went too far because he
was not in such danger as would justify
using the spear in the way
that he did. But I cannot find sufficient evidence that he formed any
intention to kill the deceased.
He admitted that he lost control of
himself and I believe that that is what happened. But, as I have
said, he went too far and
consequently I find that he unlawfully
caused the death of the deceased. In the circumstances the offence
committed was culpable
homicide and not murder. The Assessors agree.

Accordingly
the accused is convicted of culpable homicide.

P. A. P.
J.

ALLEN
JUDGE

3 May
1988

Mr
Kambule for defence

Miss
Moruthane for Crown

ORDER

The spear
(exhibit 1) is to be destroyed.

P. A. P.
J.ALLEN

JUDGE

3 May
1988

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SENTENCE

The
accused is a farmer aged 46 years with 2 wives and 3 children aged
22, 15 and 12 years. All are dependant on the accused. He
is a first
offender, but killing a person is a very serious matter indeed.

He twice
offered to plead guilty to culpable homicide the offence of which he
has now been convicted, but the pro-secutor declined
to accept the
plea. Consequently the accused is not responsible for the subsequent
trial and, in my view, he is entitled to something
like the same sort
of lenient consideration as if his plea had been accepted at the
start. He is sentenced to imprisonment for
3 years.

P. A. P.
J. ALLEN

JUDGE

3 May
1988