HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 5th day of May. 1989.
accused pleaded not guilty to a charge of murder in respect of which
the crown alleged that he intentionally and unlawfully
deceased Renang Mphutlane on or about 12th March, 1988 at Phaphama in
the district of Butha-Buthe.
evidence of P.W.7 Taelo Mphutlane was admitted by the defence and
accepted by the Crown. The medical report was handed in by
and marked "A". However the evidence of the doctor who
performed the post mortem was led and consequently reference
to the post mortem report; and the doctor P.W.8 Aloyse Joseph Shayo
was cross-examined on both the evidence led and on
evidence at P.E. showed that he and deceased were brothers and he
identified deceased's body to P.W.8 before the autopsy
testified that he examined deceased's body on 16-3-1988. He performed
the post mortem examination four days after the death.
a surgical wound on deceased's body. There were also two wounds.
ribs. There was a wound on the right lower cheat. There was a small
wound on the right lateral aspect of the chest, possibly
gun-shot wound. On left posterior lateral aspect of the cheat was
another wound, possibly an exit gun shot wound.
had a sutured wound on the stomach. He had another sutured wound on
the deodenum and one other sutured wound on the lower-most
the gut. There was a sutured wound on the right lob of the liver. The
left kidney had been removed, it seemed for purposes
P.W.8 formed the opinion that the cause of death was internal organ
injury and severe haemorrhage due to gun shot
revealed that when taken to hospital for treatment deceased was still
alive. This accounts for the many sutured wounds
which were part of
the treatment resorted to in an attempt to save deceased's life. It
seems to me that the number of the internal
organs which got injured
lay in the path of the gun shot before it ultimately exited from the
P.W.8's theory that the kidney which was removed was as a result of
the damage that it had suffered. I also accept his
theory based on
practice that once removed damaged human organs are incinerated. This
should suffice to answer the defence's query
that Note K in Exhibit
"A" was not complied with by P.W.8. Note K says
"At the conclusion of the necropsy the Medical Officer should
see that the organs, if not required for further investigation,
returned to their proper cavities........"
the procedure outlined in Note K is required where the discoveries of
damaged organs are made when deceased was already
dead on admission.
If he was still alive it stands to reason that organs which must be
removed in order to secure his life have
no place in their proper
answer to a question put to P.W.8 under cross examination he stated
that it is not possible for a person to live without
a kidney. He was
quick to expose the masked suggestion that deceased then must have
succumbed to death due to the removal of this
kidney or that there
must have been pre-existing ailment which was going to coincidentally
cause his death, by explaining that
it is possible for a person to
live even if one of his kidneys has been removed.
absence of any medical history to the effect that for a period
spanning at least forty eight hours before being operated
deceased's condition was rendered acute by reason of kidney trouble
the only common sense and rational conclusion which is free
conjecture is that the gun shot wound is responsible for the damage
which necessitated the removal of that kidney.
honest enough to tell the court that he does not have very great
experience in gun shot wounds.
veiled determination to cast doubt on the causal link between the gun
shot wound and the resultant death it was contended by
that absence of the medical evidence which was involved in the
treatment of deceased before death left a gaping hollow
in the case
for the Crown. I am however satisfied that with regard to the cause
of death P.W.8's evidence is beyond reproach. I
therefore accept his
evidence that the cause of death is severe haemorrhage and internal
organ injuries due to gun shot wounds.
4356 detective Trooper Tsolo who was present at the post mortem
examination supported P.W.8 that the entry wound appeared
than the exit one.
he knew this he replied that he often saw this. He also testified
under cross-examination that P.W.8 told him that the
cause of death
was the result of "that bullet wound tearing through the liver
through it". Although this is in the nature of hearsay evidence
the harm in it is cured by the fact that it was elicited
a man of considerable experience in the police force. He told me that
he has been in it for upwards of nine years and that
though he only
got attached to the C.I.D. section as recently as 1986 he had
previously observed bodies which had sustained bullet
6454 Trooper Makhaola testified that he and the deceased and the
accused used to work together as policemen in Butha-Buthe.
12-3-1988 in the evening P.W.2 and Trooper Nkune and accused were at
a beer drinking place at Ha Sekila enjoying their beer.
Monyalotsa came to join them later.
Trooper Nkune drew P.W.2's attention to a woman who seemed to be
running her hands in the pockets of a sleeping man. P.W.2
woman if she knew this man and also woke the man up in the same
instant. The man responded by hitting P.W.2 with a fist
on the arm
whereupon P.W.2 fought back. The fight spilled into the outside of
the beer hall where Trooper Nkune and the accused
tried to separate
the two combatants. Trooper Nkune and the accused succeeded in
separating P.W.2 and the man. It seems that immediately
separation Trooper Monyalotsa had closed ranks with P.W.2 in fighting
accused hit Trooper Monyalotsa with a fist on the eye region.
accused and P.W.2 left the place for Phaphame where they were
way Trooper Monyalotsa caught up with the two and asked accused why
he had hit him. The accused replied that he was stopping
Monyalotsa from fighting that man.
appealed to the accused and Trooper Monyalotsa to let the matter be;
and apparently they heeded this appeal despite that Monyalotsa
appeared to be in a fighting mood when he joined the two.
deceased pitched on the scene. He addressed himself to the accused.
Consequently P.W.2 broke company with Monyalotsaand
accused end deceased who appeared to be about to be engaged in a
asked them what it was they were bent on doing as he feared they were
both in a war-path. Deceased replied by saying he would
along with the gun the latter seemed to have reposed so much trust
in. P.W.2 intervened when angry words were being
the two. It seems that accused was stung to the quick when deceased
challenged him to what could be regarded
as a duel for it is said he
asked accused to put down his gun so that deceased could take the
S... out of him.
when deceased was two feet away from P.W.2, and accused was three
paces away from the latter that P.W.2 who was holding a
an oblique angle between deceased and accused that he heard the
explosive sound of a fired gun and heard deceased say
shot me." At the very moment P.W.2 saw accused put back his gun
into the pocket.
he was able to see these events because the participants were close
to him and the place was lit up by electric lights.
testified that when all this was happening Monyalotsa was no longer
in his company but had left though P.W.2 did not see him
because he was engaged in trying to separate accused and deceased
before the explosive sound of the gun. It was only after
the gun had
been fired that P.W.2 realised that Monyalotsa
hold of deceased and led him to the road. P.W.2 said after the
shooting accused left.
was conveyed to hospital where he underwent treatment but
succumbed to his injuries after the operations.
cross-examination P.W.2 explained that at no stage did he see any gun
in the hands of Monyalotsa.
denied any suggestion that Monyalotsa had laid in wait for him and
the accused. He said Monyalotsa who had been left at the
to have approached P.W.2 and accused from their side and that he came
at them in a hurry when they were only a distance
of fifty paces from
minutes later and after Monyalotsa had temporarily left, deceased
came along with the same Monyalotsa to the scene where the
was later fired.
missing portions in P.W.2's evidence are filled in by P.W.4 Trooper
Monyalotsa who said after parting company with accused who
P.W.2, he retraced his steps only to meet with deceased who appeared
to be making for the place where accused and P.W.2
asked P.W.4 why he appeared to have sustained an injury in the eye,
whereupon P.W.4 told him that he had been assaulted
by accused who by
then was not too far from the two. There and then deceased urged
P.W.4 to go along with him to accused to inquire
why accused had
assaulted P.W.4. Apparently P.W.4 had told deceased that in an
earlier inquiry about why accused had assaulted
him the latter had
vouchsafed him no satisfactory reply. This must have fuelled
deceased's indignation at; and disapproval of accused's
made by the defence of the fact that at P.E. P.W.2 did not say he saw
accused put back his gun.
relevant portion in the P.E. shows P.W.2 as having said at page 4
"I did not notice when the accused pulled out the firearm. After
the firing the accused left for Phaphama".
being had to the fact that P.W.2 was being led in the court below and
also to the fact that two lines earlier P.W.2 had said
"The accused shot the deceased with a pistol 7.65 calibre,"
concession that P.W.2 made in this Court that he "may have left
that out" seems to me to be an over-concession for
in this court
he was not asked at what stage he noticed that the weapon used was a
pistol 7.65 calibre. That he made mention earlier
of the fact that
the weapon used was the one he described renders his explanation
acceptable as true.
the question that followed puts this point beyond dispute:
P.E. you said accused shot deceased with 7.65 calibre pistol - ?
see it was 7.65 when he shot him -?
estimated it to be, owing to its size."
then can it be sincerely contended that in saying he saw this weapon
after the shot had been fired P.W.2 was bringing in
which might not be true.
thrust of P.W.4's evidence concerning his accompanying the deceased
to the spot where they found accused and P.W.2 some time
after he had
left them seems to be that he wanted to furnish proof to deceased
about accused's strange behaviour that when asked
why he hit P.W.4 in
the eye earlier at Sekila's bar he adopts a fighting attitude.
testified that his relations with accused had
the incident been harmonious. Hence his interest to get to the bottom
of accused's curious behaviour. Indeed the fact that
P.W.4 did not
fight back immediately after he got hit by accused seems to lend
support to his assertion that he was puzzled by
It also reduces to nothing the suggestion that he was later bent on
joining forces with deceased in order to
attack accused physically.
however a discrepancy between P.W.2 and P.W.4 as to what preceded the
commotion that took place outside the beer-hall concerning
who had been in the company of these men as they were drinking. I
have already outlined P.W.2's version of the incident.
version is that while he and P.W.2 and Nkune were drinking the
strange man referred to above arrived and joined them in
women who were also unknown to P.W.4 came to the drinking group. The
stranger gave money to one of the women to buy
liquor for the group.
She did not return the change. Consequently a squabble arose.
Thereupon Nkune approached her and ordered
her to return the money.
She denied having withheld the stranger's change. She made for the
door and was overtaken by Nkune who
tried to arrest her outside.
P.W.4 followed Nkune to give assistance. P.W.4 found Nkune outside
holding the woman by the jacket.
P.W,4 helped hold her by the jacket
on the other side; but the woman gave them both the slip with the
result that they remained
holding the jacket as she escaped into the
P.W.4 turned his head he suffered a full blow delivered to his eye.
After a momentary punch-drunkenness he realised it was
had just hit him for even then the accused was being restrained by
Nkune P.W.2 and the stranger from further assaulting
not there and then ask the accused why he had hit him because,
according to him, there were too
people around just then, Indeed one would expect many people to have
gravitated to this place of double incident involving
use of physical
violence happening in close tandem or almost simulteneously in and
around a beer hall on a festive Moshoeshoe's
Day. One would thus be
entitled to think that asking accused about his behaviour there and
then and in full glare of the ordinary
drunken public would cause a
further flare-up of violence. Therefore there seems to me to have
been good reason for P.W.4 opting
to question accused about the
assault in the relative calm of a good distance away from the
shows that these policemen who were involved in the incidents were
colleagues stationed at the time in Caledons' Spoort
police post on
the Butha-Buthe Orange Free State border.
that earlier on the day in question D.W.3 one Phera a Lesotho
businessman before crossing into the Republic of South Africa
occasion to deposit his pistol with police at Caledon's Poort. This
gun went missing when he came to collect it because P.W.4
wrongfully taken it away. Police were able to retrieve it from him
the following day. His explanation for having taken it away
the key to the armoury/locker where it was required to be kept had
been taken by someone who did not return it, thus P.W.4
felt the gun
would not be safe if kept outside the locker at the police post.
made by the defence about P.W.4's unlawful possession of this gun.
The defence positively asserted that it was not the
accused who fired
the fatal gun shot but P.W.4.
pointed out earlier P.W.2's evidence on the point is irreproachable.
Moreover P.W.6 W/O Khobatha's evidence based on the
to him by the accused shows it became unnecessary for him to follow
the red-herring across the trail posed by
this gun of D.W.3.
not asked to elaborate on the contents of the explanation made to him
by the accused hence an inference follows that pursuing
might bring more damning revelations against the accused than had
been intimated by P.W.6. For his part accused's evidence
of P.W.2 as to the events that triggered off the series of incidents
preceding the firing of the fatal shot.
he denies that he hit P.W.4 with a fist in the eye or anywhere. He
denies that he shot the deceased. He calls in question
the fact that
P.W.2 never at P.E. said he saw him put back his gun after firing.
explained that when the commotion spilt out of the beer hall he found
P.W.2 and Nkune holding a woman. He advised them not to
but rather to give her a charge if she had contravened the law.
P.W.4 did not pay any heed but continued assaulting the woman
whereupon accused pushed him aside in order to make him stop
assault on the woman.
asked the woman and the stranger to report at Charge Office the
he left in the direction of his home in the company of P.W.2. Along
the way they found deceased on left side of the path
and P.W.4 on the
passing them P.W.4 approached him and stood in front of him and asked
accused if P.W.4 was the only person fit to be reprimanded
Sekila's. Accused told him that he had been unruly.. P.W.4 was in a
fighting mood. Then deceased said
"Man Lenka you can't answer this man this way. You are a
Seargent at the Charge Office not in the street. I am not Monyalotsa
I can take the S... out of you together with your gun".
accused then questioned deceased's involvement in the matter. The
latter told him he could do what he
Saying so the deceased appeared to be coming at the accused. P.W.2
restrained him. Then P.W.4 also said
"you think you have that small gun. We also have our guns."
produced a gun and pointed it at the accused.
here. I heard the evidence of witnesses for the Crown namely P.W.2
and P.W.4. At no stage was it put to either of them that
pointed a gun at the accused. Accused conceded that much. A question
arises if indeed what accused alleges P.W.4 did is true
have been put to him? Indeed accused further conceded that the
purpose of cross-examining witnesses is to afford them
to admit or deny the version put to them.
I may go
further and say the rationale behind this purpose is to avoid the
criticism that the party who falls to put his version
to the other
side is fabricating. Even allowing for the latitude afforded in
Criminal trials an omission of the kind manifested
in this case and
conceded by the accused is most telling for it relates to a very
important aspect of his defence. See Phaloane
vs Rex 1981 LLR. at 246
by Maisels P as he then was. On this ground accused's veiled attempt
at seizing self-defence at this late
hour is flawed as a mere
afterthought or fabrication.
I am not
unmindful of Schutz P's warning against adoption of the unwholesome
practice of hip and thigh smiting of an accused person
circumstances where the fault of failure to put pertinent questions
to opposing witnesses lies with his counsel. See C. of A
(CRI) No. 2
of 1983 Letsosa Hanyane vs. Rex (unreported) at 7.
things in their proper perspective, I recall distinctly that after
much skirting by the cross-examiner of the question about
of the gun that was taken away from the police post by P.W.4, I asked
this witness whether when deceased said accused
put down his gun, he himself had put down his. He answered that
deceased had none in his possession to put down. As a natural
follow-up to this question prompted by the nature of the answer I
asked conjecturally or testily if P.W.4 put his own gun down.
answered that he did not because he did not intend using it. It was
then that it dawned to all in the court room that P.W.4
had after all
a gun in his possession during the Squabbles which took place in his
presence that night.
this gratuitous concession that must have emboldened accused to go a
step further and say P.W.4 produced the gun and threatened
him with it. But as I said earlier this was an afterthought. So many
fishing questions had been put to the crown witnesses
that, were it
part of the accused's defence that a positive move was made to
threaten him with a gun it would not have escaped
cross-examiner's attention to challenge the Crown witnesses with it.
Hence the inference that this obviously important fact
was not put
because it must have been known that it would be denied as false.
concluded therefore that this gun played no role in the affair. P.W.2
would have seen it if it played any role because at all
times he was
coming . between any one of the combatants who confronted the
accused. Moreover he struck me as a reliable witness.
That P.W.4 did
not try to hide the fact that he had this gun all along places him in
no less a position of honesty and reliability.
accused's story goes that P.W.2 went to where accused and P.W.4 were
and invited accused to join him on their way home; telling
that "these people can't be separated".
deceased came following accused and P.W.2. Deceased blocked accused's
way and said he couldn't do a thing. Monyalotsa
who was on the war
seen by accused coming behind the accused. Thereafter accused heard
the explosion of a fired gun. He did not know what
direction it came
from. He felt he was in danger he being aware deceased had been shot.
said he never fired his gun that day.
incredible that if deceased was standing in front of accused blocking
his way a gun shot possibly coming from P.W.4 whom accused
shortly seen coming from behind him when the sound went could hit
deceased who must have then been shielded by accused.
is the suggestion that P.W.4 could have fired his gun without
realising that because of the proximity between the
accused and the
deceased in trying to hit the accused he might hit the deceased or
exercised enormous restraint against use of the gun when he was hit
in the eye with a fist. An additional restraint was
that the gun was
not his and should have been at the Charge office at Caledon's Poort.
The fact that relations between him and
accused were good is borne
out by the fact that he used to jog together with him and they stayed
together. The suggestion that
when he wrongfully took this gun from
his post was so as to use it in attacking the accused is very absurd
indeed, for how would
he have known at that time that either a woman
would search a sleeping man or refuse with his change with the result
that in his
attempt to arrest her accused would hit him in the eye
and become vicious when later asked why he did so etc,..?
story that he was puzzled by accused's behaviour is strengthened by
the fact that shortly after accused manifested his vicious
towards the deceased he left hoping to find his girl friend but
failing her, proceeded back to the Hotel.
Telukhunoana a member of the Royal Lesotho Mounted Police, who has
undergone considerable training in the examination
of firearms both
Lerotholi Technical Institute and overseas i.e. Dublin and London
where he was trained as an inspector by first the Irish forensic
science laboratory Institute and secondly by the guns laboratory
personnel in London, testified that on 29-3-88 he examined a 7.65
Walter pistol brought to him by P.W.6. He found that it had been
fired but could not say how recently. He came to the conclusion
the gun had been fired because of the presence of gun powder residue
yielded through the tests he subjected the gun Ex.1 to.
said relations between P.W.2, P.W.4 and himself were warm. Asked why
then these witnesses would falsely incriminate
him he said "they
did not observe."
further why they wouldn't observe yet one saw him while the other
felt his fist he said "They did not observe for I did
that." I may dismiss this explanation as an engrossing lesson in
still is accused's story that after the sound of the gun and the
firing of the shot which he has cause to believe was
meant for him
save that it hit the deceased whom he saw was hit, he (accused)
decided to move away even though he did not know
where the sound
emanated from. If he did not know where the gun was fired from didn't
he by moving away run the risk of moving
into the source from which
the firing came? How is this statement reconcileable with accused's
assertion that he had last observed
that P.W.4 whom he maintains
fired the shot, was coming behind him shortly before the shot was
fired? If that is to be believed
why shouldn't his common sense
prevail on him to draw away in a definite fashion from where he had
last seen P.W.4 whom he suspected
of having fired the shot? Strangely
enough and in a manner that strengths P.W.2's version accused says he
did not see P.W.4 around
the scene immediately after the shot was
indeed is in my view just a ploy calculated at giving support to the
contention canvassed on accused's behalf that due to the
the entry wound the
have been fired a considerable distance away from the deceased by
P.W.4 who took advantage of that distance to melt into
the night once
he realised the enormity of his error and observed that his aim had
gone sour with the result that he hit an ally
instead of a rival.
P.W.2's version that he was standing next to the deceased when the
latter got hit and immediately leaned on P.W.2 as the
Therefore no theories in trajectories, unsupported by any palpable
evidence can surpass a reliable eye witness's account
that the gun
was fired some three paces away from the deceased. The submission
therefore that it was P.W.4 who fired the fatal
shot is based on a
distortion of facts in the first instance.
said accused shot the deceased. P.W.5 Trooper Molibeli said deceased
said accused had shot him. Thus deceased could not have
should put his gun down unless he had seen it or done something to
show not only that he had such a gun but was ready
and threatening to
use it on him.
said he had last fired the gun about a month before the incident and
that he is in the habit of cleaning this gun and had
cleaned it when
last he fired it. The gun is accused's personal possession and not
he explains that when examined on 29-3-88 this gun had gun powder in
it; he said "I am surprised about this matter."
to say it was never put to crown witnesses that they fired the gun
"Ex.1" in the interval between their seizure
of it and the
time it was subjected to tests. Thus there is no basis for accused's
suggestion that they fired it for purposes of
incriminating him with
the gun powder in it revealed by the tests.
authority for the view that an accused person who lies in giving
evidence does thereby strengthen the case for the crown.
referred to Ex. A2 the occurrence Book kept at Caledon's Poort police
post and Ex.3 the "firearms Register."
question put to Crown witnesses was that a page relating to the
register of Ex.1 on 12-3-88 had been removed.
examination of this book shows that whatever pages preceding 14-3-88
including those slightly appearing on the stump as at 19-9-87
been removed or torn off.
in my view, in the face of so many pages covering so many dates, be
absurd to suggest that all of them were removed in
order to suppress
information which in this case would incriminate P.W.4 instead of the
accused because whoever removed the pages
may have done so to
suppress information relating to any other matters besides D.W.3's
D.W.3 never complained that any of the bullets he had deposited with
his gun were missing. Nobody confronted P.W.4 with
that he did not return the total number of bullets he had taken. He
said he had taken five and he did return five.
Exhibit A2 shows that
eight bullets had been deposited. But D.W.3 does not remember how
many had been and how many he received.
Possibly,if they had been
eight as the occurrence Book shows P.W.4 took only five out of them
or the other three were taken by
somebody else or even misplaced
because evidence shows they could not be kept in a safe place for the
key to it was not available
at the time.
assessment of the evidence as a whole shows that on material facts,
barring minor discrepancies the crown witnesses are to be
It is not necessary to treat the case as one thaf turns on
because as shown earlier the evidence of P.W.2 as to the shooting is
direct, in that immediately after hearing the gun
sound he observed
accused returning the gun to his pocket. This is the direct and
material portion of the evidence which I accept
and therefore reject
accused's version that counters it.
urged on me to acquit the accused from the charge or to give him
benefit of the doubt. But there is authority for the view
"an accused's claim to the benefit of doubt must not be derived
from speculation but must rest on reasonable and solid foundation
created either by positive evidence or gathered from reasonable
inferences which are not in conflict with, or outweighed by, the
proved facts of the case."
See R vs
Mlambo 1957(4) SA. at 738.
with regard to the standard of proof in Criminal Cases it is
authoritatively stated that
"it need not reach certainty, but it must carry a high degree of
"If the evidence is so great against a man as to leave only a
remote possibility in his favour which can be dismissed with
sentence (of course it's possible but not in the least probable), the
case is proved beyond reasonable doubt........"
Miller vs Minister of Pensions (1947) 2 ALL E.R. at 373.
Mokhobo referred me to CRI/T/67/88 Rex vs Ntlhola (unreported) at 12
where in relation to intention which is a requisite element
indictment for murder this Court said
"It is clear therefore that in using the weapon in a manner that
accused did he must have appreciated that it would cause
death. If he
did not, then in wielding it he must have done so without regard to
that the use of this weapon might bring about."
credible evidence showed that deceased was angry with accused.
Needless to say accused who was a Seargent was the most Senior
in rank to P.W.4 and deceased who were confronting him and P.W.2 who
was trying to stop the confrontation and possible reaction
confrontation by deceased of a man senior to him coupled with a
challenge to a duel on the back of which were insolent utterances
manifested the type of behaviour which in our law amounts to
provocation. Our Criminal Law (Homicide Amendment) Proclamation No.
42 of 1959 in section 4(a) defines provocation as follows:-
"The word 'provocation' means and includes, except as
hereinafter stated, any wrongful act or insult of such a nature as to
be. likely, when done or offered to an ordinary person or in the
presence of an ordinary person to another person who is under
immediate care......., to deprive him of the power of self control
and to induce him to assault the person by whom the act
or insult .
is done or offered,"
submission was made to the effect that accused was provoked but
abundant evidence bears this out. In any event such submission
be out of place where accused denies having fired any shot at all.
Consequently for purposes of this inquiry the court was
left to its
own devices. While on the one hand one cannot play down deceased's,
and P.W.4's genuine and understandable sense of
indignation which caused them to approach the accused in legitimate
anger one should not, on the other hand, lose
sight of the likely
negative response that would ensue on deceased's effing and blinding
at the accused, coupled with deceased's
cocking a snook at accused's
authority as a Sergeant, therefore a man senior to any of the
policemen who were at the place.
also be remembered that accused had.
warning to deceased that he would not want to have anything to do
with him because accused knew the deceased to be contemptuous.
sooner had this warning been given than did the deceased act up to
words which were per se insulting were uttered at accused, almost to
his beard, and were coupled with an invitation to a duel;
all in the
hearing and full view of accused's subordinate by a subordinate.
3(1) and (2) respectively read
person who -
kills another under circumstances which but for the provisions of
this section would constitute murder; and
the act which causes death in the heat of passion caused by sudden
provocation as hereinafter defined and before there is
time for his
passion to cool, is guilty of culpable homicide only.
provisions of this section shall hot apply unless the court is
satisfied that the act which causes death bears a reasonable
relationship to the provocation."
not be stretching the principle contained in the above law too far to
find that sudden provocation would occur when the
fight which so to
speak was P.W.4's but was abandoned by the person affected,
nevertheless was renewed by a different person who
when he was on his way home. Indeed accused said in giving evidence
he asked P.W.4 and deceased
you still pursuing me?" further he asked deceased
is your involvement here" meaning
stake have you in this matter"?
experience bears abundant witness to the annoyance that arises when a
man is not able to keep his breath to cool his porridge.
helped flip accused's lid.
with regard to provocation is in keeping with the Transkeian Penal
Code which is in contrast to the South African Common
Law. It is for
this reason that it is dangerous to follow South African case law in
this respect for as Schreiner J.A.'s decision
in R vs. Krull 1959(3)
392 at 399 shows:-
"Under our system it does not follow from the fact that the lav
treats intentional killing in self-defence, where there has
moderate excess, as culpable homicide, that it should also treat as
culpable homicide a killing which though provoked was
intentional. Since a merely provoked killing is never justified there
seems to be no good reason for holding it to be less
than murder when
it is intended."
Court has drawn attention to the dangers in other cases of following
South African case law slavishly even where our own statutes
differently. See Review Case No. 717/86 R vs Thosi Andreas Molebatsi
(unreported) at 6 where it is stated:-
"The Superior Courts of Lesotho have relied and do rely on South
African authorities. This is a wholesome practice. But it
be so if even where Lesotho's own statute on a specific point,
differs from South African's Lesotho's statutes should
be applied to
case law in the same manner as South African authorities are bound
page 8 concerning the disapproval of "blind and unwary"
pursuit of the South African authorities. See also page
the fact that results emanating from two different sources can never
be the same.
It is for
this reason that I find that I should with respect distance myself
from Mapetla C.J.'s holding based on KRULL above that
in Rex vs.
Lebohang Nathane 1974-75 L.L.R. at 69
"The use of the expression "means and includes" in the
definition suggests that it was not the intention to exclude
common law concept of
Not in so
many words Krull seems to acknowledge that the intention in the
Transkeian Penal Code was to exclude the common law concept
provocation. Otherwise it is impossible to see what remedy was
intended in the common law.
it seems to me that the purpose of section 3(2) of the above
Proclamation is not self-defeating because in the event
court finds that reliance on provocation is either fanciful or that
the act which causes death does not bear a reasonable
the provocation, then the Court can reject any reliance on that
section and resolve the matter on consideration
am not, with respect, inclined to the view propounded by Cotran C.J.
in Rex vs 'Makhethang Setai 1980(2) L.L.R at 378
"The law, at any rate since R vs Krull 1959(3) SA. 392 seems to
be clear viz. that provocation does not reduce an intentional
to culpable homicide."
statute says it does.
further to say:
"Upon a charge of murder where there is evidence of provocation
only one inquiry need be made, viz. did the accused subjectively
intend to kill? If the answer is in the affirmative it will be
murder, possibly with extenuating circumstances. If the intention
kill was negatived by the provocation, it may be culpable homicide."
merely shows that the train had left the metals.
not for the fact that our Proclamation makes a difference between the
effect of provocation as it bears on common law on
the one hand and
on factors envisaged by the provocations of that Proclamation, no
doubt because clear intention can be gathered
from the weapon used
and the part of the body at which the
it seems to me that the purpose of section 3(2) of the above
Proclamation is not self-defeating because in the event
court finds that reliance on provocation if either fanciful or that
the act which causes death does not bear a rea-sonable
to the provocation, then the Court is at large to reject any reliance
on that section and resolve the matter on consideration
of any other
am not, with respect, inclined to the view propounded by Cotran C.J.
in Rex vs 'Makhethang Setai 1980(2), L.L.R. at 378
merely shows that here the train had clearly left the metals.
not for the fact that our Proclamation makes a difference between the
effect of provocation as it bears on common law on
the one hand and
on factors envisaged by the provisions of that Proclamation on the
other hand, no doubt because clear intention
can be gathered
from the weapon used and the part of the body at which the
was directed, the crime committed would be murder; and the authority
of Krull would hold sway.
deferrence to the provision of the Proclamation above I consequently
find that accused is guilty of culpable homicide on the
provocation. The gun is forfeited to the Crown.
is sentenced to eight (8) years' imprisonment of which two (2) are
suspended for three (3) years on condition that he is
of a crime committed during the period of the suspension and of which
violence to a person is an element.
: Mr. Mokhobo
Defence : Mr. Mphalane.
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