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.

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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

-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

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.

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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

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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.