C. of A.
(CRI) No.2 of 1989

IN THE
LESOTHO COURT OF APPEAL

In the
matter between :

M.
MOKHALI Appellant

v

REX
Respondent

Held at
Maseru

Coram:

MAHOMED
J.A.

TRENGOVE
J.A.

ACKERMANN
J.A.

JUDGMENT

Mahomed
J.A.

The
appellant was charged in the Court a quo with the crime of MURDERING
one Napo Mejaro ("the deceased") on the 5th of
JULY,

MR PHEKO
who appeared on behalf of the appellant correctly conceded that the
appellant had used a rifle to fire the fatal shots
which lead to the
death of the deceased on the 5th of JULY. He relied upon the
provocation which the appellant had received from
the deceased, to
make two main submissions -

Firstly he submitted that the effect of this provocation on the
mind of the appellant was such as to negate any intention on
his part
to kill the deceased.

2

Alternatively
he contended that even if the conduct of the appellant cons­tituted
the crime of murder at common-law,the provocation
under which the
appellant was acting at the relevant time, justified a finding of
culpable homicide, because of the provisions
of section 3 of the
Criminal Law (Homicide Amendment) Proclamation of 1959 ("the
proclamation")

Both the
appellant and the deceased were privates in the Royal Lesotho Defence
Force. A quarrel had broken out between the two on
the first of
January, 1988. The deceased had complained that the appellant had
referred to him as a child. The deceased hit the
appellant with a
blow on his face. The appellant returned the blow and swore at the
deceased. The fighting was then stopped by
others, but the deceased
continued to nurse a grievance, grievance. On the 2nd of July 1988
another quarrel broke out between the
two, arising from the type of
food which was being served from the mess. The deceased again
reminded the appellant of the earlier
quarrel and he threatened to
beat up the appellant.

Matters
between the two came to a head on the 5th of July near a public bar
called Lehafing. The deceased asked the appellant to
leave the bar in
order to have a discussion outside. Anticipating a possible
reconcillation of some kind, the appellant agreed.
The deceased then
took a belligerent attitude and challenged the appellant to a fight.
He grabbed the appellant and others again
intervened to separate the
two men.

Both the
appellant and the deceased then returned to the bar, to continue
their drinking. The deceased continued to

3

pester
the appellant who then decided to leave the Bar, after P.W.8 Seargent
Lebona suggested that he did so.

The
appellant decided to leave Maseru and go to his home in TY. He put
his rifle in a bag which he left with a friend at a filling
station
next to the main bus stop, so that on his return from hare the
following morning he could collect the rifle and go straight
to his
duty station. The appellant returned to the Bar to inform P.W.1
Private Nathane of his plans. He was thereafter proceeding
to the bus
stop when he was confronted by the deceased who hit the appellant
with a fist. Others again intervened and P.W.3 Private
Maja Tsolo,
lead the appellant away towards the Bar. The appellant,then sprinted
away towards the bus stop, and returned shortly
thereafter with his
rifle which he had recovered from his friend at the filling station.
He proceeded to chase the deceased, in
a state of great anger. The
deceased was eventually shot by him several times, but only after the
appellant had ordered other persons
to move away from the appellant
in order to avoid being injured themselves. The appellant reported
the matter soon thereafter to
the Police at the Pitso Ground Police
Station. The deceased died from his injuries on the same day.

In my
view, these facts would ordinarily establish beyond any reasonable
doubt that the appellant in fact killed the deceased and
that when he
fired the shot which lead to the death of the deceased, he intended
to kill the deceased or appreciated at least that
he was performing
acts which could lead to the death of the deceased.

This
inference can only be escaped, if the evidence left open the
reasonable possibility that the provocation under which appellant
was
operating, had induced an emotional condition of such intensity that
he

4

could not
and did not formulate an intention to kill, or that he did not
appreciate that he was performing acts which could lead
to the death
of deceased.

The
evidence does not justify any such reasonable possibility. The
appellant did not react unthinkingly to a sudden emergency, by

instinctively using a weapon in his immediate possession. After the
last act of belligerence, from the deceased he proceeded especially

to go and recover his firearm from the filling station some 40 paces
away. He then returned to the Bar which was some 55 paces
away and
sought out the deceased. Angry as he was, he retained sufficient
control and judgement to appreciate that he should not
endanger other
persons. He therefore ensured that other

persons
moved away from the deceased. Having shot the deceased, he
appreciated what he had done and immediately proceeded to report
the
matter to the police. This is not the conduct of a man so enraged
that he did not appreciate that he was killing the deceased
or at
least that he was performing acts which might lead to the death of
the deceased.

Mr.
Pheko, contended that even if this conclusion was justified, a
conviction for murder did not follow because of the provisions
of
Proclamation 42 of 1959.

Section 3
of the Proclamation reads as follows:

" 3(1) A person who -

(a) unlawfully kills another under

circumstances which but for the provisions of this section would
contitute murder; and

(b) does 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.

5

3(2) The provisions of this section shall not apply unless the court
is satisfied that the act which causes death bears a reasonable

relationship to the provocation"

"Provocation"
is defined in Section 4 of the Proclamation as follows:-

"4(a)
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 his
immediate care or to whom he stands in a conjugal, parental, filial
or fraternal relation or in the relation of
master or servant, 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.

(b) For
the purposes of this section the expression "an ordinary person"
means an ordinary person of the class of the
community to which the
accused belongs."

Mr. Pheko
contended that the Crown had to establish that the appellant had not
pepetrated his act in killing the deceased, in the
heat of passion
caused by sudden provocation (as defined) and before there was time
for his passion to cool.

I shall
assume (without deciding) that there is indeed such an onus on the
part of the Crown, but in my judgment that onus is discharged
by the
evidence.

The
circumstances of the "provocation" proved by the facts in
this matter were not such as to make it likely that an"ordinary

person" in the position of the appellant would so loose his
self-control as to be and be induced to kill the deceased or to

perform acts of so serious a nature as to carry with it an
appreciated

6

risk of
death ensuing. Such "an ordinary person" would on the
facts, have had enough time for his "passion to cool

"sufficiently before he attempted an act as serious enough as
the killing of the deceased. Moreover the act of killing the

deceased, in these circumstances does not "bear a reasonable
relationship to the pro­vocation" within the meaning
of
Section 3.

In the
result I would order that the appeal be dismissed.

Signed

I.
MAHOMED

JUDGE OF
APPEAL

I agree

Signed:

J.J.
TRENGOVE

JUDGE OF
APPEAL

I agree

Signed:

L.W.H.
ACKERMANN

JUDGE OF
APPEAL

Delivered
at Maseru this 27th day of July, 1990.

For
Appellant : Mr. Pheko

For
Respondent : Mr. Mdhluli.