C. OF A.
(CRI) NO: 10 OF 1988

IN THE
LESOTHO COURT OF APPEAL.

In the
matter between:

LIKHETHO
NKOLI Appellant

v

REX
Respondent

HELD AT
MASERU

CORAM:

Schutz P.

Trengove
J.A.

Ackermann
J.A.

JUDGMENT.

TRENGOVE
J.A.

The
appellant was convicted of the murder, with extenuating
circumstances, of one Mamoliehi Macheli (hereinafter referred to as

"the deceased") and was sentenced to imprisonment for nine
years. He now appeals to this Court against his conviction.
It was
common cause at the trial, and on appeal, that the deceased died on 5
September 1986 at or near Ha Letele, in the district
of Maseru, as a
result of an injury inflicted by the appellant. The injury was
described as a penetrating wound on the deceased's
left thigh which
ruptured the femoral artery: The dispute between the parties, as
regards the facts, related mainly to the

2

circumstances
of the assault upon the deceased. On this issue, the Crown relied
principally upon the testimony of the witness Maliphapang
Lekala
(PW2). Her account of the assault upon the deceased was denied by the
appellant. However, the trial court accepted PW2's
version of the
incident, and rejected that of the appellant as being untrue. The
first question for consideration in this appeal
is whether the trial
court erred in rejecting the appellant's account of the circumstances
in which the deceased was fatally injured.

PW2's
evidence can be summed up as follows. PW2 and the deceased were
cousins and close friends. The deceased had been working in

Johannesburg for some time and had returned to Ha Letele about a week
prior to 5 September 1986. At about 3p.m. on that day, PW2
and the
deceased went to a neighbouring village, called Moeeling, to drink
beer. On arriving at the beer house, they found the
appellant and the
deceased's brother there. They were sitting on their own, drinking
beer. PW2 and the deceased did not join them
nor did they engage in
conversation with them. PW2 and the deceased shared about six scales
of beer. By the time they had finished
drinking, the appellant and
the deceased's brother had already left the beer house.

PW2 and
the deceased then set off for Ha Letele. They had not gone very far,
when PW2 noticed the appellant coming towards them.
He was carrying a
stick which had a metal cap at the tip. When he caught up with them,
he hit at the deceased with the stick and
struck her on the temple,
saying:"Hey, what are you

3

saying
when I say you should stop". The deceased protested and replied:
"What is it you want from me because I have nothing
to say to
you, because the only person I have something to say to is your
brother". The appellant then took a brown knife
(identified as
an Okapi knife) from his pocket and started stabbing at the deceased
- he stabbed her on her thigh, her hip and
her ankle, and when he
stabbed at her for the fourth time, the deceased collapsed and fell
to the ground.

At that
stage PW2 ran back to the village to raise the alarm and call for
help. She reported the incident to a number of people,
including the
deceased's brother, and she also sent a young boy to report the
incident to the Headman and to the deceased's relatives.
PW2 then
returned to the scene of the assault. The appellant was no longer
there. At the spot where the deceased was lying on her
back, with her
dress lifted up to her thighs, there was a pool of blood and the
ground was disturbed. She was already dead. At
that stage PW2 noticed
that there were a large number of wounds, about twelve, on the body
of the deceased.

After a
while the Headman, Makonyane Letele (PW3), and other villagers
arrived on the scene. PW2, the Headman and a number of the
villagers
remained with the body of the deceased throughout the night until the
following day when the police arrived. PW2 was
present when the
Headman and Detective Trooper Khanyapa (PW4) examined the body of the
deceased before it was transported to Marakabei
on horseback. She saw
PW4 making a note of the injuries that the deceased had sustained.
This concludes

4

the
summary of PW2's account of the attack upon the deceased. I shall
return to certain aspects of her evidence presently.

The
appellant's evidence relating to the events on the fateful day is
briefly as follows. Although he was a married man, he said
that he
and the deceased had been involved in a secret love affair since
1985. He worked on the mines in Johannesburg but at the
time in
question he had been home for about a week. On the afternoon of 5
September 1986, he and the deceased's brother, Majoro
Macheli, had
gone to the beer house at Moeeling. When they arrived at the beer
house, the deceased and PW2 were already there.
They all sat drinking
together. The appellant had two bottles of grape beer but he was not
at all intoxicated. After a while he
beckoned to the deceased that he
was about to leave. She nodded, indicating that she had. got the
message. The appellant then left.
When he was some 150 paces from the
beer house, he noticed that the deceased was following him. She was
on her own and was not
accompanied by PW2. At the deceased's request,
he stopped and waited for her.

On
catching up with the appellant, the deceased told him that she was no
longer interested in him and that she was in love with
his brother.
On hearing this, the appellant became very upset and warned the
deceased "she must not speak things like this
because I will
lash her". The appellant, who had been sitting down, then stood
up. He did not notice that his Okapi knife
had fallen on the ground
from his back pocket. At that moment the deceased bent down, picked
up the knife, and rushed at the appellant

5

trying to
stab him. He defended himself by hitting the deceased on the forehead
with his stick. Having thereby warded off the attack,
the appellant
decided to run away. The appellant's version of what then occurred
appears from the following passage in his evidence:

"Q: And what then happened?

A: When I decided to run away, then the stick sort of went out

of my hands and it dropped down.

Q: Yes?

A: This is the time when I was trying to run away and she was

next to me. I found that the knife is now on the ground and

I picked it up and stabbed her.

Q: Stabbed her where?

A: I stabbed her on the thigh.

Q: Yes and what happened thereafter?

A: And after having stabbed her with this knife she then stood

up, and then I found I had a chance of running away which I

did".

The
appellant also stated that: "The reason I assaulted her is
because I had said to her I will lash you and then before I
could do
it she started fighting with me and she stabbed me first with the
knife". (My underlining).

After he
had stabbed the deceased the appellant ran away and went home. He did
not report the incident to his headman, nor initially,
to the police.
After a few days he told his sister about the incident and that he
had run away from Marakabei. However, he admitted
that he did not
tell his sister that he had

6

stabbed
the deceased in self-defence. He explained: "I thought she will
be frightened especially when I was also frightened".
His sister
then persuaded him to surrender himself to the police, which he did
at Maseru on 8 September 1986. To conclude on this
aspect, the
appellant was adamant that PW2 was not present during his
confrontation with the deceased.

As far as
the case for the Crown is concerned, PW2 was the only eyewitness of
the assault upon the deceased. There was no other
direct evidence of
the circumstances in which she was killed except, of course, for the
appellant's version. In his evaluation
of PW2's testimony the learned
trial Judge, Molai J, stated that she was not a very impressive
witness and that her evidence had
to be approached with caution. The
learned Judge, in fact,found her evidence to be unreliable in certain
respects. It was contended
on behalf of the appellant that in the
light of the fact that PW2 was in effect a single witness, and a
number of shortcomings
in her evidence, the trial court erred in
accepting her account of the assault, rather than that of the
appellant.

In this
regard, counsel for the appellant relied strongly on the following
wellknown passage from the judgment of De Villiers JP
in R v Mokoena
1932 OPD 79 at 80 namely that:

"the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by s
284 of Act 31 of 1917, but in my opinion that

7

section should only be relied on where the evidence of the single
witness is clear and satisfactory in every material respect"
.

However,
in a number of subsequent cases it was pointed out that although
these cautionary remarks were apposite they must be related
to the
context in which they were made. They do not constitute a rule of law
and should not obscure the ultimate purpose of the
court's enquiry,
namely whether the guilt of the accused has been proved beyond
reasonable doubt. (See: R v Mokoena 1956 (3) SA
81 (A) at 85, S v T
1958 (2) SA 676(A) at 678, and S v Sauls and Another 1981 (3) SA
172(A) 108) . In S v Sauls, Diemont jA observed:

"There is no rule of thumb test or formula to apply when it
comes to a consideration of the credibility of the single witness

(see the remarks of Rumpff JA in S v Webber. The trial judge will
weigh his. evidence, will consider its merits and demerits and,

having done so, will decide whether it is trustworthy and whether
despite the fact that there are shortcomings or defects or
contradictions
in the testimony, he is satisfied that the truth has
been told. The cautionary rule referred to by De Villiers JP in 1932
(the
first Mokoena case) may be a guide to a right decision but it
does not mean "that the appeal must succeed if any criticism,

however slender, of the witnesses' evidence were well founded"

(per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted

in R v Bellingham) . It has been said more than once that the

8

exercise of caution must not be allowed to displace the exercise of
common sense".

In the
present instance, it is quite clear from the record that even though
PW2's evidence might not have been entirely satisfactory,
her account
of the assault upon the deceased has been corroborated in a number of
material respects. Firstly it will be recalled
that PW2 said, in
evidence, that when the appellant reprimanded the deceased for
carrying on walking when he called on her to stop,
she replied: "What
is it you want from me because I have nothing to say to you, because
the only person I have something to
say to is your brother." The
appellant admitted, in cross-examination, that that correctly
reflects the tenor of the deceased's
reply on the occasion in
question. PW2 was also able to describe and identify the weapons used
in the assault, namely a stick with
a metal-capped tip and a brown
Okapi knife. The appellant also conceded that PW2 had correctly
described the sequence and nature
of the first two blows that he had
struck at the deceased, namely, that he first hit her on the temple
with the stick and then
stabbed her on the thigh with the knife.

The main
attack on PW2's reliability as a witness was directed at her evidence
of the number and nature of the wounds inflicted
by the appellant. It
will be recalled that PW2 said that she ran off to call for help
after the deceased had been stabbed three
times, and that when she
later returned to the scene of the assault she noticed that there
were about twelve wounds on the

9

deceased's
body. The appellant, as I have already mentioned, stated that he only
stabbed the deceased once, and that he then ran
away. On this issue
there is, therefore, a very real conflict between PW2's testimony and
that of the appellant. Referring to the
criticism at the trial of
PW2's evidence on this issue, Molai J. said in his judgment:

"One other point on which the evidence of Maliphapang was
subjected to criticism was that on her return from the village where

she had gone to raise the alarm she counted twelve wounds on the body
of the deceased. It must be born in mind that Maliphapang
had just
witnessed a vicious attack on the deceased who was her friend and
close relative. When, on her return from the village,
she found her
friend dead she must have been too frightened and confused to be able
to count the wounds on the deceased. She may
have noticed that the
deceased had sustained multiple injuries. I am not convinced,
however, that she actually counted twelve wounds
on the deceased at
that stage." In the light of the appellant's evidence as to the
number of injuries inflicted, it is necessary
to consider whether
PW2's evidence on this issue has been corroborated by any of the
other crown witnesses. In this regard, I refer
briefly to the
evidence of the following Crown witnesses who also testified as to
the injuries sustained by the deceased, namely,
Headman Makoanyane
Letele (PW3), Detective Trooper Khanyapa (PW4), and Dr. Lineo Matsela
(P.W.1).

PW3's
evidence is to the following effect.

He is the
headman of Ha Letele. As a result of a report that he

received
during the late afternoon of 5 September 1986, he went

10

to
Moeeling where he found the dead body of the deceased. At that stage
a large number of people had already gathered there. He
sent for the
police and together with a number of other villa­gers, he
remained with the body of the deceased throughout the
night. On the
following day PW4 arrived. In PW3's presence, PW4 then examined the
body of the deceased for injuries and made a
note of them. PW3 then
noticed that there were a multiplicity of injuries on the deceased's
body - on the forehead, the kidney
region, the buttocks and the legs.
Although PW3 did not actually count the number of injuries, he was
quite certain that they were
more than ten in number. PW4 confirmed
that on the day in question he went to the scene of the crime in
response to a message received
from PW3. In the latter's presence, he
undressed the body of the deceased and examined it for injuries. He
noted the following
injuries in his police note­book namely: A
wound on the left temple which appeared to have been caused by a
sharp object; a
deep wound on the left thigh which also appeared to
have been made by a sharp object; a superficial wound just below the
heart
region; a wound in the kidney region; six "thin"
(superficial) wounds on the left buttock; six other "thin"

(superficial) wounds just below the knee; and a wound on the left
toe. PW4 also noticed abrasions on the deceased's arms and a
pool of
blood under her body. To sum up thus far. PW3 and PW4 corroborated
PW2's evidence that the deceased had sustained multiple
injuries. As
against their evidence, the trial court was faced with the testimony
of PW1, a medical practitioner, who was on duty
at Queen Elizabeth II
Hospital in Maseru on 8 September 1986. She conducted a post-mortem
examination on the

11

body of
the deceased on that day. PW1 said that she found two wounds on the
deceased's body, namely, a laceration on the left frontal
region of
the skull, and a penetrating wound on the left thigh which ruptured
the femoral artery, resulting in a severe loss of
blood. According to
PW1, the bleeding from this artery was the cause of the deceased's
death. PW1 also stated, quite emphatically,
that the aforementioned
wounds were the only injuries on the body, and that the laceration on
the left frontal region could not
have been caused by the appellant's
stick, but by some sharp instrument.

In his
evaluation of the evidence of the Crown witnesses who testified about
the number of wounds on the deceased's body, the learned
trial Judge
observed: "The evidence of Dr. Matsela (PW1 ) was, however, not
consistent on this point, with the evidence of
Chief Makoanyane (PW2)
and Detective Trooper Khanyapa (PW4) both of whom impressed me as
reliable witnesses. I am convinced that
Dr. Matsela (PW1) did not
conscientiously examine the wounds on the body of the deceased. Both
Chief Makoanyane (PW3) and Detective
Trooper Khanyapa (PW4) were
testifying to the truth when they told the court that there were far
more than just two wounds on the
body of the deceased." Judging
by the very meager particulars in the post-mortem examination report,
I also have some doubts
as to the thoroughness of the post-mortem
examination. PW1 may have considered it unnecessary to make a note of
the other wounds
mentioned by PW4 because of their relatively
superficial nature.

12

I now
come to the trial court's views of the appellant and his testimony.
The trial Judge described the appellant as "a shameless
liar."
Having carefully considered his evidence, I fully agree with this
assessment. I am quite satisfied that the appellant
was deliberately
untruthful when he denied that PW2 was present when he attacked the
deceased. In this regard, I fully agree with
the following passage in
Molai J's judgment, namely: "In my view, the fact that she (PW2)
knew the sequence of the blows that
he (the accused) delivered on the
deceased with the stick and the knife is a clear indication that
Maliphapang (PW2) was present
and actually witnessed the assault
which the accused perpetrated on the deceased. That being so, I
reject as false the accused's
story that when he assaulted the
deceased Maliphang (P.W.2) was not there and accept as the truth the
latter's version that she
was present and actually witnessed the
accused's assault on the deceased." In my opinion the
appellant's explanation of why
he ran off after stabbing the
deceased, and why he failed to tell his sister that in stabbing the
deceased, he had simply acted
in self-defence, if that had indeed
been the position, is untruthful and totally unacceptable.

The next
question for consideration is whether the court a quo erred in
finding that the appellant had "assaulted the deceased
with the
requisite subjective intention to kill." It is common cause that
there is no evidence on record, that when he assaulted
the deceased,
the appellant had any actual or direct intention to kill her.
However, the court found that the appellant had what
is often
referred to as intention in the legal sense or dolus eventualis. As
regards this

13

aspect of
the case, Molai J. said: "In my judgment when he brutally
assaulted the deceased as he did the accused was aware
that death was
likely to result. He nonetheless, acted reckless whether or not death
did occur."

Referring
to dolus eventualis, Holmes, J.A. said in S. v. Mini 1963 (3) 188 (A)
at 190 F: "On the question whether the appellant
intended to
cause death, the law to be applied is settled and clear. If a person
foresees the possibility of death resulting from
his deed and
nevertheless does it reckless whether death ensues or not, he has in
law the intention to cause death ........ It
is not necessary that he
should have the desire to cause death." A finding that an
accused had the requisite legal intention
to cause death may, like
any other finding of fact, be one based on inference from established
facts and circumstances.

In the present case there is no direct evidence as to the appellant's
subjective state of mind at the time of the assault. His
evidence was
quite correctly rejected as false. It is necessary, therefore, to
consider whether an inference can be drawn from
the proved facts that
the appellant foresaw the possibility of death resulting from
stabbing the deceased, and was reckless of
the result. One must look
at all facts. In this regards Holmes J.A. pointed out in the Mini
case, at 190 H, "that regard must
be had in the main to factors
indicating what was in the accused's mind before he struck the blow,
and to some extent to what was
in his mind as he was striking. On
this branch of the enquiry the fact that the wound turned out to be
fatal is irrelevant. One
must also guard against deducing ex post
facto from the mere fact that the wound was not deep, that foresight
and recklessness

14

in question were absent. ...... The depth or nature of the wound may
throw some light on the degree of force used as the blow was
being
struck; but correlated and equally cogent considerations are the
nature of the weapon about to be used, the degree of control
over the
extent and effect of its use, the physique of his victim, and the
part of the body aimed at."

In the
present instance the relevant facts and considerations are as
follows:

1. The
   appellant was about 23 years of age at the time of the incident, and
   he had been working on the mines of the Witwatersrand
   for some time.

   
   

2. There
   is no evidence that on the afternoon in question the appellant was
   not in his sound and sober senses. On the appellant's
   own evidence
   he had been drinking some grape beer, but he had not been affected
   by it.

   
   

3. The
   appellant's action was not an entirely impulsive act, on the
   blinding spur of the moment, leaving him no time to think of
   its
   possible effect. The appellant had been follow­ing the deceased
   and PW2 and he started attacking the deceased as he caught
   up with
   them.

   
   

4. The
   appellant first hit out at the deceased, with the stick, striking
   her on the left temple. From this it appears that what he
   had in
   mind was more than than a mere non-dangerous tap on the head.

   
   

15

5. The
   blow on the head was followed by the attack with the Okapi knife, a
   sharp-pointed and lethal weapon. In all, seventeen stab
   wounds were
   inflicted, most of them admittedly of a superficial nature. However,
   one of these superficial stab wounds was in
   the region of the
   kidneys, and another below the heart region. The appellant was aware
   that he was wielding a very dangerous
   instrument, and to borrow a
   phrase from Holmes J.A., "he was not a surgeon about to operate
   carefully on an anaesthe­tised
   and immobile patient."

   
   

6. And
   then, of course, there is the very first and fatal stab wound,
   which, as I have already mentioned, has been described as a
   deep
   penetrating wound on the left thigh, rupturing the femoral artery
   and resulting in a massive loss of blood.

   
   

7. And
   finally, there is the very callous conduct of the appellant after
   the assault when he failed to go to the assistance of the
   deceased
   and simply left her to bleed to death.

   
   

In these circumstances it seems to me that, as a matter of logic and
common sense, the only reasonable inference is that the appellant
did
foresee the possibility of death resulting from what he was doing.
And he did it reckless of the consequences.

16

Thus,
even if the Appellant did not actually intend to bring about the
deceased's death, he had in law the intention to cause it.
He was
therefore rightly convicted of murder with extenuating circumstances.

In the
result the appeal is dismissed.

(Signed)
.

J.J.
TRENGOVE

JUDGE OF
APPEAL

I agree

(Signed)

W.P.
SCHUTZ

PRESIDENT

I agree

(Signed)

L.W.H.
ACKERMANN

JUDGE OF
APPEAL

DELIVERED
at MASERU this 27th day of JULY, 1990

FOR THE
APPELLANT : Mr. Monyako

FOR THE
RESPONDENT : Miss Moruthoane.