CRI/T/67/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

THABO
MOTHIBELI

HELD AT
QUTHING

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 12th day of December,
1990

The Crown
has preferred a charge of Murder against the accused in respect of
the alleged intentional and unlawful killing of Tahlo
Marinakhoe. The
deceased died on the 9th day of September 1988 at Ha Sekoati in the
district of Qacha's Nek.

It
appears that on the day in question there was at the scene a feast
going on and many people had gathered there including the
deceased.
Later in the day or early the following day at around 1.00 o'clock
the accused came to the scene. He was asked to sit
down and was
offered some beer. He was disturbed in his drinking by the deceased
who kept on asking him to give him some beer;
and the deceased went
further to tell the accused to his face that this beer is not being
sold hut rather is beer prepared for
the feast. It is clear from this
that the deceased

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thought
he was entitled to drink freely of the beer that had been offered to
the accused on his arrival. While this was going on
and shortly
afterwards P.W.1 had occasion to hear the deceased complaining that
the accused stabbed him. This occurred simultaneously
with the act
that P.W.1 demonstrated before this court namely, that,pushing the
knife through his blanket, the accused using his
left hand stabbed
the deceased who was close to him around the sternum or the
solar-plexus. 'P.W.1 grabbed hold of the accused
by his wrist on the
left hand in the process, though he didn't see it, a knife dropped
from the accused, the knife was later retrieved
from under the table
nearby. The deceased when asked what the matter was by the witnesses
who were there told the witnesses in
a question form "Don't you
see that this man has already injured me?". The witnesses saw
the place where the alleged
stabbing had taken place. The accused was
seperated from the deceased and the deceased was made to stand by the
witnesses hut the
deceased complained that he was feeling tired and
he was offered a seat but in no time he collapsed and died. One of
the witnesses
said that the deceased took about an hour to die; hut
regard being had to the nature of the wound and the place where it
was inflicted,
namely, on the left ventricle of the heart, the
deceased could not have survived more than five minutes. And clearly
the doctor's
evidence shows that the ventricle was torn or lacerated
some one and a half centimetres deep. It is therefore obvious that a
man
so mortally injured could never have survived for anything close
to an hour; five minutes would he exceedingly long before he died.

The Crown
witnesses were taxed in cross-examination as to their accuracy in the
observation of events which were taking place there.
To my view there
doesn't appear to be anything that derogates from their clear
observation of what was going on albeit at a feast
where people might
have been going up and down. P.W.1 stated that because of an intruder
or a stranger who was there his view fell
in the

3

general
direction of the accused because the intruder or a stranger had sat
next to him. It is no wonder then that when a disturbance
took place
at the drop of a hat he was at the scene without any delay.

On the
other hand the accused's story is totally lacking of local colour; in
fact if one may put it, it appears as though it relates
to a
completely different scene from what was taking place in that place.
It is as if the narrations that the Court heard in this
trial
occurred in two different places. The accused told the Court of the
existence of a fight that took place in the house and
yet none of the
Crown witnesses who claimed to have been in that house were told
about this fight that the accused witnessed and
in the process of
which he himself sustained an injury on the head. The accused among
other things told me that he was, after the
injury to the deceased,
taken to a peach tree and tied to it naked. This is something that
the Court heard for the first time when
the accused was giving
evidence in his defence. No doubt if his counsel had been told that
story he would have put it to the Crown
witnesses in view of the
number of, I might say, quite irrelevant questions which he had put
to the Crown witnesses. Surely this
new version of the accused would
have served as fruitful grist to the mill. On that score therefore
the accused's story is rejected
as false beyond reasonable doubt. I
may just add that the Court having made this observation is aware
that there is authority for
the view that an accused person who gives
false evidence is in no different position from the accused who says
nothing at all hut
should his story lead to two inferences being
drawn the fact that he lied will strengthen the inference of guilt
flowing from the
fact that he had something to hide.

I have
been referred to a number of authorities which talk about the
necessity for the Crown to prove its case beyond reasonable
doubt. I
have respect for those authorities hut there is another authority
which I have greater respect

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for,
namely, that proof beyond doubt doesn't mean proof beyond a shadow of
doubt. I also respect the reason behind that observation,
namely,
that the law would fail to protect the community if it allowed
fanciful possibilities to deflect the course of justice.

On
probabilities which arc very important in any case, there is further
authority for the view that if the evidence against an accused
is so
strong as to leave only a remote possibility in his favour amounting
to something that one could dismiss with the sentence,
"of
course, it is possible hut not in the least probable" then the
Crown in that case is said to have proved its case
beyond doubt.

The
position in which this injury was inflicted was on the deceased's
upper part of the body. It pierced the deceased's heart, in
such
circumstances there is no other inference that one can make regarding
the intention with which such an injury was inflicted
except that it
was with intent to murder. And on that score I do find that the
accused did intentionally kill the deceased.

JUDGE

12th
December, 1990

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EXTENUATING
CIRCUMSTANCES

I have
just been addressed on factors which are intended to extenuate the
unlawful act that you carried out against the deceased.
They have
been enumerated by your counsel, namely, that the wound that you
inflicted was only one and therefore couldn't he said
to have been in
perpetration of a brutal murder. The next was that you had consumed
liquor and that the deceased had constituted
himself a kind of a
nuisance to you by claiming rights to the beer that had been offered
to you.

Having
considered these three and the fourth that your counsel advanced and
taking also into account the fact that your counsel
has ascertained
with the Crown the correctness of the factual basis for the address
given on your behalf and reasons advanced in
that regard it is
fitting, I find, that extenuating circumstances can he said to exist
in this case.

SENTENCE

You have
been telling me a lot of lies in this Court.

I have
taken only the last portion of the reasons advanced in mitigation
namely that you have spent two years awaiting trial. I
have to
balance the interest of the society against your own interest. For
the lightest of the excuses you have taken away a man's
life. You
will go to jail for 8 years.

JUDGE

12th
December, 1990

For Crown
: Mr. Qhomane

For
Defence: Mr. Putsoane