CRI/T/5/90

IN THE
HIGH COURT OF LESOTHO

In the
Matter of:

REX

v

MOLATOLI
TSIBELA

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 17th day of October, 1990.

The
accused person is before me on two charges viz. murder and attempted
murder. The following allegations are disclosed by the
body of the
charge sheet:

Count I : " In that upon or about the 26th day of December,
1988 and at or near Ha Mokoto in the district of Thaba-Tseka,
the
said accused, did unlawfully and intentionally kill Joel Nkuoatsana."

Count II " In that upon or about the 26th day of December, 1988
and at or near Ha Mokoto in the district of Thaba-Tseka the
said
accused did, unlawfully and with intent to murder, assault one
Thabang Nkuoatsana by stabbing him with a knife."

2

It may be
mentioned that at the commencement of the hearing of this trial Mr.
Peete who represents the accused in this matter informed
the court
that the defence would not dispute the depositions of Dr. Ka Renzi
and Nathnael Nkuoatsana who were P.W.11 and P.W.7,respectively,
at
the proceedings of the Preparatory Examination. In addition the
defence would admit the medical report com­piled in respect
of
Thabang Nkuoatsana, the complainant in Court II. The admissions made
by the Defence counsel were accepted by Mr. Thetsane,counsel
for the
crown.

In terms
of the provisions of S.273 of the Criminal Procedure and Evidence
Act, 1981 the depositions of Dr. Ka Renzi and Nathnael
Nkuoatsana, as
well as the medical report compiled in respect of the complainant in
count II became evidence. It was unnecessary,
there­fore, to call
the deponents, and the Doctor who had com­piled the medical
report in respect of the complainant in
CountII, as witnesses in this
trial.

Briefly
stated the court heard the evidence of P.W.5, Tper Chabeli, who
testified that on 27th December, 1988 he received a certain
report
following which he proceeded to the village of Ha Mokoto. He was
accom-panied by Tper Fobo who was, however, not called
as a witness
in this trial. After they had come to the village of Ha Mokoto they
were taken to a rondavel in which he found the
dead body of the
deceased. On exami­ning it for injuries he found that the body
had sustained a single stab wound on the right
side of the neck. He

3

conveyed
the body of the deceased, in a police vehicle to the mortuary and
assured the court that it sustained no additional injuries
on the
way.

In his
evidence P.W.7, D/Tper Ramone told the court that on 28th December,
1988 he went to Paray Hospital where he found P.W.2,
Thabang
Nkuoatsana, ill in bed. He had sustained a wound on the back and
could not speak properly. On 30th December, 1988 he proceeded
to Ha
Mokoto and carried out investigations. He too was taken to a spot in
the veld where he noticed a pool of blood which was,
however, already
dry. I shall return to the evidence of P.W.5 and P.W.7 later in this
judgment.

The
evidence of Dr. Ka Renzi was to the effect that during December, 1988
he was a medical Doctor stationed at Queen Elizabeth II
hospital here
in Maseru. He recalled that on 29th December, 1988 he performed an
autopsy on a dead body of a male African adult.
The body was
identified before him as that of the deceased, Joel Nkuoatsana,by
Nathnael Nkuoatsana and Sello Nkuoatsana.

That was
confirmed by Nathnael Nkuoatsana who told the court that the deceased
was his own son. On the day in question, 26th December,
1988, he was
at a place called Ha Ramalapi. In the morning of the following day
27th December, 1988, he was still at Ha Ramalapi
when he received a
certain report from a driver of an ambulance. As a result of that
report he got into the ambulance and found
P.W.2, one of his sons who
had sustained some

4

injuries.
The ambulance took him and P.W.2 to Paray hospital where the latter
was admitted. He noticed that P.W.2 had a deep stab
wound above the
kidney region and another wound on the elbow. He reported the matter
to Thaba-Tseka police with whom he returned
to his home at Ha Mokoto.

On
arrival at home Nathnael Nkuoatsana found that the deceased, Joel
Nkuoatsana, had passed away. The body of the deceased was then

conveyed to Paray hospital, from where it was transported to Queen
Elizabeth II hospital in Maseru on 28th December, 1968. He
accompanied the deceased's body which did not sustain any injuries
whilst it was being transported from Ha Mokoto to the mortuary
at
Queen Elizabeth II hospital.

According
to the evidence of Dr. Ka Renzi his post-mortem examination revealed
that the deceased had sustained a 3 cm x 2.5 cm deep
wound on the
right side of the neck severing the internal carotid artery and
jungular vein. On these fact the medical doctor formed
the opinion
that death was due to severe bleeding technically known as
haemorrhagic shock.

The
medical report compiled on behalf of P.W.2 revealed that he was, on
27th December, 1988, admitted at Paray hospital with two
stab wounds,
one on the right elbow and another on the left side of the "
thorax. He was developing pneumo-thorax and pneumonia.
In the opinion
of the medical Doctor an instrument such as a knife could have been
used to inflict the injuries on P.W.2.

5

I can
think of no good reasons why the findings of the medical doctor that
the deceased died of haemor-hagic shock resulting from
the injury he
had sustained on the neck, as well as the unchallenged medical report
that P.W.2 had sustained two stab wounds should
not be accepted as
the truth. The next salient question for the determination of the
court is whether or not the accused is the
person who inflicted the
injuries on both P.W.2 and the deceased, thus causing the letter's
death.

It is not
really disputed that, at all material times, a certain Motlalehi
owned a field at a place called Phula-Ntso outside the
village of Ha
Mokoto. In 1988 the field was, however, used by the accused who had
cultivated some crops therein. On the day in
question, 26th December,
1988, two boys viz. P.W.1, Realeboha Nkuoatsana, and P.W.4 Hape
Nkuoatsana were herding cattle, donkeys,
horses and goats next to the
field.

According
to P.W.1 whilst he and P.W.4 were herding the animals, one of the
cattle entered into the field. No damage of any sort
was,
however,caused as the field had recently been re-ploughed following
the destruction of the first crop by the worms. The evidence
of P.W.1
that only one cattle had trespassed into the field is, however,
disputed by the accused

6

according
to whom,on the afternoon of the day in question,he left the village
of Ha Mokoto to attend to his horse which had been
tethered outside
the village. When he came within the view of Phula-Ntso, the accused
noticed a number of cattle grazing in his
field. He hurried to the
place intending to impound the cattle.

As he
approached the field the accused saw the cattle being driven
therefrom. They were clearly three in number. He denied, therefore,

the evidence of P.W.1 that only one cattle had trespassed into the
field. The accused further told the court that he had cultivated
on
that field maize, pumpkin and barley crop. In his evidence that
following the destruction of the first crop by worms the field
had
recently been re-ploughed and there was no crop that could have been
damaged by animals, P.W.1 was, therefore, not being honest
with the
court.

P.W.1
was, in his evidence corroborated by P.W.4. It may, however, be
convenient to mention, at this juncture, that P.W.4 is only
12 years
old. Despite his tender age I, however, found P.W.4 to be so
intelligent that he could appreciate the meaning and religions

sanction of an oath which was duly administered to him. On account of
his youthful age the evidence of P.W.4 must nonetheless be
approached
with utmost cuation.

7

As
Hoffmann puts it at page 416 of his invaluable work, South African
Law of Evidence (2nd ed.)

"The danger is not only that children are highly imaginative but
also that their story may be the product of suggestion by
others."

Although
the evidence of P.W.1 and P.W.4 that the accused's field had been
re-ploughed following the destruction of the first crop
by worms was
corrobo­rated by D.W.3., Thoola Tsibela, the latter told the
court that there was a maize crop growing on the
field. He was
corroborated in this regard by P.W.6, Makalla Monyane, the chief of
Ha Mokoto. Both P.W.6 and D.W.3 told the court
that on 27th December,
1988 they were amongst the people who actually conducted an
inspection of the damage caused by the animals
that P.W.1 and P.W.4
had been herding next to the accused's field. They found that there
was a maize crop growing on the field.
According to P.W.6 the maize
crop could have been about 2" high. Judging by the hoof prints
P.W.6 and D.W.3 found that three
cattle had, in fact, trespassed into
the field and eaten only three maize plants.

I must
say I observed all the witnesses as they testified from the witness
box in this trial. P.W.6 who is the chief of Ha Mokoto
impressed me
as a truth­ful witness who gave his evidence in a straightforward
manner. I am prepared to accept his story that
there was at the
material time a maize crop growing on the

8

accused's
field and three cattle were found to have trespassed therein damaging
three maize plants. That granted, it necessarily
follows that the
evidence of P.W.1 and P.W.4 on this point must be rejected as false.

It is
common cause that on arrival at the place where P.W.1 and P.W.4 were
herding animals the accused demanded three of the cattle
so that he
could impound them for having trespassed into his field.
Notwithstanding the explanation of P.W.1 and P.W.4 that only
one had
run into the field the accused selected away three of the cattle.
According to P.W.4 as he did so the accused actually
instructed him
to go home and report to his elder brothers that he was impounding
the animals. This is, however, denied by the
accused. The accused's
denial is, in a way, cor­roborated by P.W.I according to whom he
was the one who actually sent P.W.4
home to report that the accused
was impounding the animals.

I am
inclined to accept as the truth the accused's evidence corroborated
by that of P.W.1 that he did not instruct P.W.4 to go home
and report
to his elder brother that he was impounding the animals. That being
so, it stands to reason that the uncorroborated
evidence of P.W.4
that he did must be rejected as false.

It is
common cause from the evidence of P.W.2 P.W.4 and, indeed, their
mother 'Mamota Nkuoatsana, who

9

testified
as P.W.3 in this trial that on arrival at home P.W.4 found his elder
brothers (the deceased and P.W.2) outside the house
where they were
pre­paring to go to a mill. He reported to them that the accused
was impounding the cattle. He then went inside
the house and reported
to P.W.3. The deceased and P.W.2 were instructed by P.W.3 to go to
the veld and ask accused not to drive
the cattle to the pound but
wait for her so that they could inspect the damage allegedly caused
by the animals and settle the matter
amicably. The deceased and P.W.2
immediately left for the veld whilst P.W.3 followed them in the
company of P.W.4.

According
to P.W.4 when he and P.W.3 came to the veld he was walking ahead of
the latter. He noticed the accused driving away three
of the cattle
one of which was yellowish in colour. He heard P.W.2 calling at the
accused saying : "Hei Mohlomphehi.' what
is happening to the
cattle?" The accused replied: "Ntate, your cattle have
damaged crops." P.W.2 then asked the
accused to wait for the
cattle's owner who was already approaching. The accused told P.W.2
that he wanted his father and neither
his mother nor P.W.2 himself, a
fact which is, however , denied by the accused.

At that
stage the three cattle which the accused had been driving away turned
back. The accused then caught hold of the yellow cattle
by the tail
saying he was impounding it. As it was being held

10

by the
tail the yellow cattle ran towards P.W.2 who, however, raised up his
blankets to scare it away. The cattle ran away from
P.W.2 and took a
downwards direction. As there were fields in the direction towards
which the yellow cattle was going P.W.2 ran
alongside the cattle in
an attempt to stop it. The cattle then ran straight towards the
deceased with the accused still holding
on to its tail. The deceased
also scared it away with his blankets. The evidence of P.W.4 is, in
all material respect on this point
confirmed by P.W.1 and P.W.2.

The
accused's version is, however, slightly different. According to him
whilst he was driving the three cattle to the pound at his
home
village the deceased and P.W.2 came and stopped them. The deceased
actually drove back two of the cattle whilst P.W.2 drove
back the
third one which was yellowish in colour.

As he was
next to the yellow cattle the accused caught it by the tail and tried
to prevent it from going back with the other two
cattle. He confirmed
the evidence of P.W.1, 2 and 4 that the cattle then ran downwards
with P.W.2 running fast on its side.

According
to the accused there were no fields in the direction towards which
the yellow cattle was running and the sole purpose
of P.W.2 running
alongside that cattle was to present it from being driven home or
impounded. As P.W.2 ran alongside it the yellow
cattle

11

turned
towards the two cattle that were being driven back by the deceased.
When he saw it approaching him the deceased went towards
the yellow
cattle and scared it away with his blankets.

In my
view, the evidence of P.W.1,2 and 4 that as it ran downwards P.W. 2
ran alongside the yellow cattle to prevent it from trespassing
into
the fields is rather unconvincing. The accused was at the time
admittedly running after that cattle in an attempt to drive
it home
where he was to impound it. The accused would surely stop the yellow
cattle from trespassing into the fields, if there
were any at all in
the direction towards which it was running. There was, therefore no
need for P.W.2 to run alongside that cattle.
The only reasonable
explanation why he did so is, in my view, the accused's story that
P.W.2 and the deceased were preventing him
from impounding the three
cattle. Consequently I have no hesitation in rejecting as false the
evidence of P.W.I, 2 and 4 that the
deceased and P.W.2 did not
interfere with the accused as he tried to impound the animals.

It is
common cause from the evidence of P.W.1, 2, 4 and indeed, the accused
himself that when the deceased scared it away the accused
stopped
run-ning after the yellow cattle. According to P.W.I, 2 and 4 the
accused then went to, and delivered three blows at, the
deceased,
with a knife. The deceased warded off two of the blows with his
blanket which got torn

12

in the
process. The third blow, however, landed on the neck of the deceased
who ran away bleeding profusely. The accused then turned
to P.W.2 and
chased after him. As P.W.2 was running away, the accused threw the
knife at, and stabbed, him on the elbow. P.W.2
stambled and fell to
the ground. Before he could ride the accused picked up the knife
which had dropped to the ground and stabbed
him on the back. The
accused then jumped about boasting that he had killed the youngs of a
devil. P.W.3 was, in the meantime, screaming
and holding to the
deceased's wound in an attempt to stop the bleeding. According to
P.W.2 when P.W.3 asked the accused why he
was cruelly killing her
children the latter insulted her by her mother's private parts and
threatened to kill her. He (P.W.2) had
to advise P.W.3 to keep quiet
so as to avoid being assaulted by the accused.

In her
evidence P.W.3 told the court that she came to the place where the
accused was impounding her animals at the stage when the
latter was
chasing after P.W.2. She pleaded with the accused,who was wellding a
knife,not to harm the child, At that stage the
deceased,who was
following her,threw away his blanket. She noticed that he was
bleeding profusely from the right side of his neck.
She immediately
returned to the deceased and pressed on his injury in an attempt to
stop the bleeding. According to her it was
at that time that P.W.3
saw the accused throwing a knife at and

13

stabbing
P.W.2 who fell to the ground. The accused then caught up with P.W.2,
picked up the knife which had dropped to the ground
and again stabbed
him on the back. After he had thus been stabbed by the accused, P.W.2
got up on his own. She did not know what
then happened to P.W.2
because she was busy attending to the deceased who was still bleeding
profusely. She next saw P.W.2 at Paray
hospital where he had been
admitted with injuries on the back and elbow.

According
to P.W.3 the accused had on a previous occasion threatened that the
soldiers would invate her family around Christmas
and New Year
festi­vities. When she asked him whether what he did on that day
was what he had meant by saying the soldiers
would harm her family,
the accused insulted and threatened her with violence. She, however,
ignored the accused and raised an alarm
as a result of which one
'Makhutsana came to the scene.

'Makhutsana
testified on behalf of the defence as D.W.2 She confirmed that on the
afternoon of the day in question she was in her
house in the village
of Ha Mokoto when she heard the alarm raised by P.W.3. She
immediately went out and found P.W.3 some distance
away from the
house. She was holding the deceased who was obviously dying from a
bleeding injury on his neck. On arrival D.W.2
pushed P.W.3 away from
the deceased and placed her hand on the

14

letter's
bleeding wound. Dispite her efford to stop the bleeding the deceased
passed away. According to D.W.2 she found neither
P.W.1, P.W.2.P.W.4
nor the accused in the vicinity of the spot where P.W.3 was attending
to the deceased. She did not, therefore,
hear the accused hurling
insults at any one of them.

In his
evidence, the accused further testified that when he saw the deceased
going to and scaring it away with his blankets he stopped
running
after the yellow cattle. He asked the deceased what he was doing but
there was no reply. When he looked back the accused
noticed that
P.W.2 was approaching him with a knife in his hand. He looked to the
side of the deceased and found that he too was
holding up a knife
with which he delivered a blow at him. He dodged and warded off the
blow with his arm. The deceased's knife,
however, tore his lumber
jacket on the left side of the chest before dropping to the ground.
He picked up the deceased's knife
and put it in his pocket.

According
to the accused when the deceased delivered the blow at him he
remembered that he too had a knife on his waist. He quickly
pulled it
out and stabbed the deceased once only in self-defence. He denied,
therefore, the evidence that he tried on three occasions
to stab the
deceased whose blanket got torn in the process.

15

After
stabbing the deceased the accused turned to P.W.2 who then ran away.
He chased after him. As he was running away P.W.2 stambled
and fell
to the ground. The accused confirmed that he then caught up with, and
stabbed P.W.2 on the back. He, however, denied that
he ever threw a
knife at P.W.2 nor did he jump about boasting that he had killed the
youngs of a devil.

According
to him when he realised that he had injured the deceased and P.W.2
the accused was very confused. He abandoned the idea
of impounding
the animals that had damaged his crops and returned home. As he
walked home the deceased and P.W.3 were throwing
stones at, and
insulting him. None of the stones hit him. He first went to the
chief's place intending to report what had happened.
The chief was,
however, not in. He then went to his home to report to his father and
elder brother, Thoola. His father was also
not in. He however,
noticed his elder brother seated outside his house. He went to him
and reported what had happened.

D.W.3,
Thoola Tsibela, confirmed that whilst he was sitting outside his
house, on the day in question the accused came and reported
what had
happened between him and the deceased and P.W.2. The accused also
showed him his lumber jacket which had a tear on the
chest region,
allegedly caused by a blow delivered by the deceased with a knife. He
did not, however, show him any knife that had
been used by either the
deceased

16

or
himself during the fight.

After the
accused had made the report D.W.3 immediately proceeded to the scene
of crime where he found P.W.3 and D.W.2 with the
deceased. The
deceased was already dead. He waited at the scene of crime until
P.W.6, the accused and many other people had arrived.
At about dusk
on that day the body of the deceased was taken to his house.

D.W. 3
further confirmed the evidence that in December, 1988 the field used
by the accused had been ploughed for the second time
following the
destruction of the first crop by the worms. He gave a lie,
therefore,to the accused's story that the field had not
been ploughed
twice in 1988.

He
confirmed that on the following day, 27th December, 1988, he and many
other people including P.W.6 and Nathnael Nkuoatsana went
to the
accused's field and inspected the damage allegedly caused by P.W.3's
animals. He noticed hoof prints of three cattle which
had damaged
only three maize plants.

According
to the accused, after D.W.3 had left for the scene of crime, he
entered into his house. Shortly thereafter he went outside
and hid
his knife underneath a stone on the forecourt before returning into
the house. Whilst he was sitting in the house the chief's
messengers
came to call him. He was too frightened to go to the chief. Later on
the chief's

17

messengers
again came to call him. He then went to the chief (P.W.6) at the
scene of crime where he found the deceased already dead.
P.W.6 and
many other people had also gathered there. He gave an explanation of
what had happened and produced the deceased's okapi
knife as the one
he had used to inflict the injuries on the deceased and P.W.2. He
conceded, however, that his explanation that
he had used the
deceased's knife to stab him and P.W.2 was a lie.

After the
body of the deceased had been carried from the scene of crime to his
house he (accused) left on horseback to surrender
himself to the
police at Thaba-Tseka police station. when he came to a place called
Liphokoaneng on his way to the police station
he hid the deceased's
okapi knife underneath a stone. The reason for so doing was because
he was not sure what the reaction of
the police would be if he
brought the knife to the police station. He eventually surrendered
himself to the police at Thaba-Tseka.

P.W.8,
D/L/Sgt Mongaula confirmed that in the afternoon of 27th December,
1988 the accused surrendered himself to him at Thaba-Tseka
police
station and volun­tarily reported that he had fought with P.W.2
and the deceased. In the course of the fight he had
stabbed P.W.2 and
the deceased with the latter's knife. He did not, however, know if
the knife had remained at the spot where the
fight was taking place.
The accused who was wearing a lumber jacket which had a tear on the
chest region did not hand over any
weapon. However, because of the

18

explanation
made by the accused and the tear he noticed on his lumber jacket,
P.W.8 examined him for injuries. He found none. He
then detailed
police officers to proceed to Ha Mokoto and, inter alia, look for the
knife which the accused had allegedly used
on P.W.2 and the deceased.

Now,
coming back to their evidence, P.W.5 and P.W.7 told the court that on
the day they went to Ha Mokoto they were then taken to
the spot where
the accused had allegedly assaulted the deceased and P.W.2. They
noticed a pool of blood which was, however, already
dry. They, in
vain, looked for the knife that the accused had allegedly used.
However, on their return to the police station P.W.5
and P.W.7 met
the accused who took them to a place called Liphokoaneng where he
produced and handed over to them an okapi knife.
The knife had been
hidden underneath a stone at Liphokoaneng. P.W.5 and P.W.7 took
possession of the okapi knife and it has since
been in the police
custody. They detected nothing of interest on that knife.

According
to P.W.8, on 4th January, 1989 the accused took him to his house at
Ha Mokoto and produced a black long knife that could
not be claspped.
He confir­med the accused's evidence that the knife had been
hidden underneath a stone on the forecourt of
his house. The accused
handed over to him the knife which P.W.8 took possession of and
returned to the police station.

19

It has,
however, disappeared whilst in the police custody. It is common cause
that the accused was subsequently charged as aforementioned.

Considering
the evidence as a whole, it seems to me, it is not really disputed
that the accused did on 26th December, 1988, stab
the deceased and
P.W.2 with a knife. The question I have earlier posted viz. whether
or not he is the person who inflicted the
injuries ^ on both P.W.2
and the deceased, causing the letter's death, must, therefore, be
answered in the affirmative.

The
accused has, however, raised the private defence of self-defence. He
told the court that he was standing between P.W.2 and the
deceased
both of whom were attacking him with knives. He had, therefore, no
chance to run away.

According
to the accused when the deceased delivered a blow at him with a
knife, he warded off the blow with his arm. The knife,
however, tore
his lumber jacket before dropping to the ground. At the time he saw
the deceased delivering the blow, the accused
remembered that he too
had a knife on his waist. He quickly pulled it out and simultaneously
stabbed the deceased on the neck in
self-defence. He picked up the
deceased's knife from the ground and put it in his pocket before
turning to P.W.2 who, however,
took to his heels. As he chased after
him P.W.2 stambled and fell to the . ground. Before P.W.2 could rise,
the accused caught
up with and stabbed him on the back again in
self-defence. He did not, however, disarm P.W.2 of the

20

knife.

The
accused's evidence in this regard is denied by P.W.1, 2 and 4
according to whom the deceased and P.W.2 were not armed with knifes

or any weapons at the material time. The accused merely rushed and
delivered three blows with his knife at the deceased when the
latter
scared away the yellow cattle that was running straight to him. The
deceased warded off two of the blows with his blanket
which sustained
holes in the process. The third blow, however, landed on the
deceased's neck.

After
stabbing the deceased the fatal wound on the neck, the accused turned
to P.W.2 who had been standing some distance away. As
P.W.2 ran away
the accused threw his knife at, and stabbed, him on the elbow, a fact
which was, however, denied by the accused.

P.W.1, 2
and 4 confirmed the accused's evidence that as he was running away
P.W.2 fell to the ground. Before he could rise, the
accused caught up
with, and stabbed P.W.2 on the back.

I have
already found in this judgment that three cattle that P.W.1 and 4
were looking after had trespassed into the accused's field,
damaging
his crops. The accused went to impound them, and rightly so in my
opinion. I have further found that as the accused was
driving them to
the pound, the deceased and P.W.2 went to prevent him from doing so.
They had no right to do that. Naturally,

21

the
accused must have been offended by the action of the deceased and
P.W.2. It seems to me reasonable, therefore, to accept as
the truth
the evidence of P.W.1,2 and 4 that the accused then attacked the
deceased and P.W.2. That being so, I reject as false
the accused's
story that P.W.2 and the deceased were the first to attack him. I
also find as incredible the Accused's evidence
that when the deceased
delivered a blow at him with a knife he could have warded off the
blow with his arm and simultaneously pulled
out a knife with which he
stabbed him. The truth is in the evidence of P.W.1, 2 and 4 that when
he went to the deceased the accused
was already weilding his knife
with which he stabbed the deceased.

It is to
be observed, however, that although P.W.I, 2 and 4 told the court
that the first two blows delivered by the accused inflicted
holes on
the deceased's blanket, a fact which was, however, denied by the
accused, the blanket was neither shown to the police
nor produced,
before the court. The inference to be drawn from failure to do so is
that the blanket would not have supported the
crown evidence. I
accept, therefore, the accused's story that he did not deliver the
first two blows at the deceased as P.W.1,
2 and 4 wished the court to
believe. I reject as false the version of P.W.1,2 and 4 on this
point.

Although
in his evidence the accused told the court that the deceased attacked
him with the

22

okapi
knife which he took possession of it is significant that he never
showed the knife to his brother, D.W.3, to whom he first
came
immediately after stabbing the deceased and P.W.2 nor did he show it
to the police when he surrendered himself at the police
station. His
story that he was afraid to show the knife to the police is simply
unconvincing. If he had shown the knife to the
police surely that
would have given credence to his story that the deceased had been
attacking him with the knife and he had to
defend himself.

I must
say I have had the occasion to look at the tear on the lumber jacket
that the accused was wearing at the time he was allegedly
stabbed by
the deceased. The tear is rugged and does not appear to have been
made by the use of a sharp instrument such as a knife.

By and
large, I am not convinced that the deceased was armed with a knife
with which he stabbed the accused as the latter wishes
the court to
believe. I am prepared to accept the evidence that it was the accused
who first used a knife to attack the deceased
who was not armed with
any weapon simply because he (accused) was provoked by the deceased
and P.W.2 preventing him from impounding
the animals that had
trespassed into his field and damaged the maize crop. However,
assuming the correctness of my finding that
the deceased was not
armed with a knife, or any weapon for that matter, the provocation
was not such that it could reduce murder
to a lesser offence. By
using a knife on the deceased, in the circumstance of this case, the
accused cannot properly be heard to
say he acted in self-defence.

As
regards the second count it is common cause that at the time the

23

accused
stabbed him P.W.2 was not only running away but had even fallen down.
He was, therefore, not posing any danger to accused's
life.
Self-defence simply does not avail the accused.

When he
went to the deceased and stabbed him on the neck with as leathal a
weapon as a knife, the accused was, in my view, aware
that death was
likely to occur. He nonetheless acted reckless of whether or not it
did occur. That granted, I am of the opinion
that in assaulting the
deceased as he did the accused had the requisite subjective intention
to kill, at least in the legal sense.

As
regards the second count there is evidence that Shortly after the
accused bad stabbed him P.W.2 got up although with some difficulties.

The accused was still around at the time and must have seen him. If
he really intended to kill him there was nothing to prevent
the
accused from returning to P.W.2 and finishing him. He did not. That,
in my view, is not consistent with the contention that
the accused
had the requisite intention to kill P.W.2. I accept, however, that in
stabbing P.W.2 with the knife as described by
the evidence the
accused intended to cause him grievous bodily harm.

In the
result, I find the accused guilty of murder as charged in the first
count. On the second count I come to the conclusion that
the accused
has

24

committed
assault with intent do do grievous bodily harm which is a competent
verdict of attempted murder. He is accordingly convicted
of assault
with intent to do grievous bodily harm.

My
assessor agrees with this finding.

B.K.
MOlAI

JUDGE.

17th
October, 1990.

For Crown
: Mr. Thetsane

For
Defendant: Mr. Peete.

25

CRI/T/5/90

EXTENUATING
CIRCUMSTANCES

Having
convicted the accused of murder we are enjoined by the provisions of
S. 296 of the Criminal Procedure and Evidence Act, 1981
to state the
existence or otherwise of any factors tending to reduce the moral
blameworthiness of his act.

I have
found on evidence that the accused was lawfully impounding animals
that had trespassed into his field and damaged crops when
the
deceased and P.W.2 unlawfully interfered by preventing the animals
from being driven to the pound. In my view the action of
the deceased
and P.W.2 was provocative. Although the provocation was not such that
it could reduce the murder of the deceased to
a lesser offence it is
a factor to be properly considered for purposes of extenuating
circumstances.

I have
also found that in assaulting the deceased in the manner he did the
accused had intention to kill in the legal sense i.e.
he did not plan
or premeditate the death of the deceased. It is trite law that the
absence of premeditation is a factor to be properly
considered in
determining the existence or otherwise of extenuating circumstances.

In the
result, I come to the conclusion that there are, in this case,
extenuating circumstances viz. pro­vocation and the absence
of
premeditation.

My
assessor agrees.

26

SENTENCE:

In
mitigation of his sentence I am informed that the accused has no
record of previous conviction and I take it, therefore, that
he is a
first offender. I have also been invited to consider a number of
factors in mitigation of the accused's sentence. They
have been
eloquently tabulated by the defence counsel and there is, therefore,
no need for me to go over them again. Suffice it
to say I take them
all into con­sideration.

I am,
however, not prepared to turn a blind eye to the fact that the
accused has been convicted of serious offences calling for

commensurately serious punishment. A punishment that will really
deter the accused from a repetition of this sort of a thing and
serve
as a reminder to people of his mind that the courts of law do not
encourage them to take the law into the their hands.

The
accused is accordingly sentenced to serve a period of 8 years
imprisonment on count I and 5 years imprisonment on count II.
The
sentences are to run con­secutively.

B.K.
MOLAI

JUDGE

19th
October, 1990

For Crown
: Mr. Thetsane,

For
Defence: Mr. Peete.