CRI/T/15/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

NKOPANE
PITSO

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 23rd day of April.
1990

The
accused is charged with the murder of Phenya Pitso on the 26th
December, 1986 at Mokhalinyane in the district of Maseru. He
has
pleaded not guilty.

It is
common cause that the deceased Phenya Pitso, died as a result of
injuries inflicted upon him by the accused. The cause of
death was
exsanguination into pericardium and left chest following a stab wound
through the right ventricle. According to the post-mortem
examination
report the deceased had two stab wounds

2

The first
wound was on the left chest and was 1 cm long; the second one was a 3
cm x 2 cm wound on the abdomen and 3 cm above the
umbilicus.

Mathibeli
Pitso (P.W.1) is the elder brother of the deceased and headman in his
village. He testified that on the morning of the
26th December, 1986
he went to the home of Mohapinyane accompanied by Tlali Ramakau
(P.W.3), Mokhele and the deceased. When they
returned from
Mohapinyane's they headed for his home because he had invited the men
to his home so that they could eat some meat
together. On arrival at
his home the men went to the cattle kraal while he went into the
house to bring the meat. The meat was
in a big basin but there was no
knife. He brought the meat and put the basin down near the kraal. The
accused had a knife and started
cutting the meat into small pieces,
but instead of cutting all the meat into small pieces so that the
other men could eat, he ate
the pieces as he cut them. The deceased
ordered him to cut all the meat so that they could also eat.

Mathibeli
says that in reply to that order the accused said: "You are very
silly, you think it is your son whom you have made
a bull at your
place. You are very naughty." The deceased did not say anything
but stared at the accused. He (Mathibeli) went
to the deceased and
asked him to forget the matter and not to look at his brother in that
way. The accused came but Mathibeli says
that he tried to stop him
from coming close to the deceased. However the accused stretched his
arm and hit the deceased twice

3

on the
belly above the diaphram. Tlali exclaimed that the accused was
stabbing the deceased with a knife. He (Mathibeli) had not
seen the
knife. The deceased walked some distance and fell down near the
kraal. He went to him and found that he had two wounds
on the belly.
At that time the accused was brandishing a knife. He went to the
accused and caught hold of him while Tlali took
the knife from him.

Before
the incident in question the deceased and the accused got along well
and never had any quarrels.

In
cross-examination Mathibeli denied that he and the other men
assaulted the accused before he stabbed the deceased. He denied
that
the knife in question was supplied with the meat. He did not see that
the accused was bleeding after the fight. He did not
see that the
accused had sustained any injury before he was handed over to the
police that evening.

The
evidence of Trooper Lehloba (P.W.2) who arrived at the scene of the
crime at about 6.30 p.m. on the same day, was to the effect
that on
his arrival there the deceased was already dead. He examined the dead
body and found two wounds on the belly. The accused
was shown to him
as the perpetrator of the crime and he arrested him and charged him
with murder. An okipa knife was given to him
by Mathibeli and the
accused said it was his knife and that he had used it to stab the
deceased. (He handed in the knife as an
exhibit and it was marked e
Exhibit 1). He says that

4

the
accused had no injuries but he saw blood on the sleeve of the shirt
of the accused but assumed that it came from the deceased.

The
evidence of Tlali Ramakau (P.W.3) is the same with that of Mathibeli
on all material points. His version is that the accused
arrived at
the kraal after they had realised that none of them had a knife. On
his arrival he cut the meat and ate. The deceased
ordered him to cut
the meat into small pieces so that they could all eat. The accused
said: "You think that I am that child
of yours you have made a
bull in your house." The accused left the basin and came to the
deceased. He stabbed him twice on
the belly. He (Tlali) exclaimed
that the accused had stabbed he deceased with a knife. Some men tried
to take the knife from him
but the fought with them till they finally
overpowered him and threw him to the ground. They took Exhibit 1 and
gave it to Mathibeli.
His hands were fastened with a rope till the
police arrived. He was handed over to them together with Exhibit 1.

Tlali
denied that the accused was. assaulted before he stabbed the deceased
nor that he sustained any injuries.

Mosito
Pitso (P.W.4) is the elder brother of the deceased. He deposed that
on the day in question he was at his home when an alarm
was raised at
the kraal. He rushed to the kraal and found that the deceased had
fallen down and was already dead. At that time
the accused was
throwing himself on the rocks below the cliff's

5

He says
that he helped in the fastening of the hands of the accused but at
the same time he says he did not see any blood on the
accused because
he was far from him - about twelve paces.

In
cross-examination Mosito denied that at the prepara­tory
examination he said when he arrived he found that the accused was

bleeding and wounded. He asserts that he never went near the accused.
In my view this witness is a lier of the first order in that
he said
he helped the other men in fastening the accused but in the same
breath he says the accused was far from him and he did
not even go
near him.

The above
conflicting statements are not the only ones in which Mosito told a
lie. In cross-examination by the accused at the preparatory

examination he admitted that when he arrived at the kraal he examined
the accused and found that he was wounded and bleeding. I
have no
doubt that the witness made that state­ment at the preparatory
examination and that he is deliberately retracting from
it for
reasons best known to himself.

The
accused gave evidence in his defence and told the Court that when he
arrived at the kraal he found Mathibeli, the deceased and
Mosito.
There was a big basin which had meat and a knife in it He greeted the
deceased because he had not met him since he (decease
came home for
the Christmas holidays. Instead of answering the greeting the
deceased spoke to Mosito and said: "Mosito, when
with this
(hona) fetch its wife? (in Sesotho: Mosito, hona ho tla lata mosali
oa hona neng?). He asked the deceased why he referred
to

6

as "this"
(hona). The deceased did not answer the question but attached him and
hit him with fists. While he was warding
off the blows Mathibeli
prodded him with a stick on the back and when he turned to see what
was happening, he struck him on the
forehead with a stick. When he
fell down Mathibeli and the deceased belaboured him with sticks and
kicked him. He fought with them
for a long time but failed to defend
himself properly because he could not see his assailants properly due
to the blood that was
pouring down his face from the wound he
sustained when Mathibeli struck him.

He tried
to run away but bumped against the kraal. He wiped the blood from his
eyes and saw the knife in the basin. He took the
knife and stabbed
the deceased who was near him at that time. He is sure that he
stabbed him three times. Mathibeli hit him on
the back and tried to
take the knife from him. They struggled till the knife cut him
(accused) on the hand. He managed to wrest
the knife from Mathibeli
and when the deceased came to him he stabbed him again. They stopped
fighting because they were all tired.

The
accused said that it was Tlali Ramakau (P.W.3) who uttered the words
about his son being made a bull at his house. A; the same
time the
accused says that Tlali was not there at all at the kraal. He is
quite sure that he stabbed the deceased six times. He
says that he
told the policeman who arrested him that his arm had been fractured
and that the policeman saw the blood and wounds
on his left hand. He
reported these injuries at Queen Elizabeth II Hospital.

7

On the
11th August, 1989 and at the request of Mr. Seotsanyana, counsel for
the accused, I made an order that the accused be medically
examined
to determine if he had any old scars on the forehead and that such
examination should include X - ray of both hands in
the region of the
wrists and the forearm. According to the medical report and X-ray
films the accused had no old fractures nor
any scars showing old
injuries.

I have
already formed the opinion that Mosito Pitso is a lier and that his
evidence must be rejected in toto. What he said at the
preparatory
examination that the accused was wounded and bleeding cannot be true.
The doctor who examined him at the request of
the defence has found
no trace of any injury. If he had sustained a fracture on the
forearm, the doctor would have seen the old
fracture in the X-ray
film. No such healed fracture was found. No scar was found on the
forehead.

In
addition to this there is the evidence of three Crwon witnesses i.e.
P.W.1, P.W.2 and P.W.4 that the accused had no wounds. I
have
believed their evidence on this point. There was no evidence that
before this incident there was any animosity between the
accused and
the Crown witnesses. They impressed me as being truthful witnesses. I
agree with the defence counsel: that there are
some discrepancies in
the evidence of the Crown witnesses but I am of the opinion that they
are minor ones.

Mr.
Seotsanyana attempted to criticise the evidence of the doctor who
examined the accused at the request of the defence on the
ground that
the healed fractures were clearly visible from the

3

X-rays. I
do not think that he is entitled to do so without having applied that
the witness be declared as a hostile witness. In
any case I examined
the X-rays and saw no healed fracture. I have seen healed fractures
in previous cases and the new formation
of the bone around the
fracture is usually clearly visible even to the eye of a layman.

Mr.
Seotsanyana submitted that there was evidence of bad blood between
the accused and his brothers because ever since he was arrested
and
remanded into custody they never visited him at the prison. In my
view the hatred may have come about after the killing of
the
deceased. The accused killed his brother without any justifiable
cause and the natural reaction from the other brothers is
to disown
him and to have no association or dealings with him.

The
accused has obviously told the Court a lie when he said he is quite
sure that he stabbed the deceased six times. All the Crown
witnesses
including Dr. Titi Mohapi who performed the post-mortem examination
agree that there were two stab wounds. These two
wounds were
inflicted by the accused when the Crown witnesses saw him hit the
deceased on the belly. Immediately after the hitting
the deceased
fell down and the two wounds were found.

I have
accepted the Crown evidence that the accused got offended when the
deceased ordered him to cut the meat into small pieces
so that they
could all eat. He apparently already had a

9

grudge
against the deceased for some other reason which he has not disclosed
to the Court. The request or order made by the deceased
to the
accused was not provocative.

The
accused stabbed the deceased on very delicate part of the body and
must have foreseen that his act was likely to cause the death
of the
deceased but was reckless as to whether death resulted or not. He is
not telling the truth that when he stabbed the deceased
his face was
covered with blood and that he did not see where he stabbad him. The
evidence of the Crown witnesses, which I have
believed, shows that
there was no blood on his face. The question put to P.W.3 by Mr.
Seotsanyana (if I recorded it correctly)
seems to suggest that the
accused was assaulted by the Crown witnesses after he had stabbed the
deceased. It reads as follows:

"Q. Accused says he was grabbed after the stabbing, he says the
group fought him and hit him with sticks and broke his arms
and
caused a big wound on the head? - I deny that. He had no wounds,
Mosito Pitso was not telling the truth."

If the
suggestion is that the accused was assaulted after he stabbed the
deceased, he cannot plead that he was defending himself.
At the
relevant time when he stabbed the deceased his life was not in any
imminent danger because the deceased merely stared at
him. There was
nothing to show that he was about to attack him. It was the. accused
who went to the deceased and stabbed him.

10

In the
result I find the accused guilty of murder.

My
assessors agree.

J.L.
KHEOLA

JUDGE

23rd
April, 1990.

11

EXTENUATING
CIRCUMSTANCES

I have
found that the accused's intention in the commission of this offence
is one known as dolus eventual is. In R. v. Sigwahla,
1967 (4) S.A.
566 at p. 571 the Appellate Division held that

"(a)
Trial courts, in their conspectus of possible extenuating
circumstances, should not overlook the fact (if it be such)
that it
is case of dolus eventualis."

I have
also found that the accused was under the influence of liquor (R. v.
Ndhlovu (2), 1965 (4) S.A. 692 at pp. 695 C - E, 696
A - B).

I have
found that there was no premeditation. In Rex v. Taylor, 1949 (4)
S.A. 702 at 705 Schreiner. J.A. said:

"If a killing is intentional it is none the less murder because
the intention has only been formed immediately before or at
the tame
of the act, though the time factor may be of crucial importance where
questions of provocation or self-defence are raised
and be relevant
to the issue of extenuating circumstances."

I found
that there are extenuating circumstances. SENTENCE: Five (5) years'
imprisonment.

J.L.
KHEOLA

JUDGE

23rd
April, 1990.

For Crown
- Miss Moruthoane

For
Defence - Mr. Seotsanyana.