CRI/T/84/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

and

REMMY
MOHASI Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 21st day of May,
1990.

In Count
I the accused is charged with the murder of Moketetsa Ntlhanngoe on
the 30th January, 1988 at Maphotong in the district
of Maseru. In
Count II the accused is charged with the crime of assault with intent
to do grievous bodily harm, it being alleged
that on the 30th
January, 1988 and at or near Maphotong in the district of Maseru, the
accused unlawfully and intentionally assaulted
Raseta Lephoto by
stabbing him with a knife with intent to cause him grievous bodily
harm.

The
accused pleaded guilty to both charges; however, ' Mr. Ramolefe, who
appeared for him, said the pleas were not in accordance
with his
instructions and asked for a short adjournment.

2

When the
court resumed the accused changed his plea to one of not guilty to
both charges.

The
depositions of the following witnesses at the preparatory examination
were admitted by the defence as evidence in this Court;
P.W.4 Thabiso
Ntlhanngoe who identified the corpse of the deceased to the doctor
who performed a post­mortem examination; P.W.5
Trooper Sofeng
whose evidence is to the effect that he arrested the accused and
charged him with the two crimes he is now facing.
The accused had
earlier taken the witness to his home and pointed out a knife which
had been placed in the bushes in the accused's
yard; P.W.8 Dr. N.
Mapetla is a doctor at St. Joseph Hospital. He examined Raseta
Lephoto on the 31st January, 1988 and found that
he had a stab wound
on the left shoulder. The injury was not dangerous to life and the
patient was treated as an out-patient; P.W.7
Dr. P. Ntsekhe performed
a post-mortem examination on the corpse of the deceased. She formed
the opinion that death was due to
the left haemopneumothoram She
found eight wounds as follows: two on the left upperarm, one on the
left shoulder, on the right
shoulder and on the right upperarm, on
the left side of the chest lateral to the nipple, on the left
subscapular region and on
the left flank showing a bit of gut. (her
post-mortem examination report is Exhibit "B").

The first
witness called by the Crown in this Court is Detective Trooper
Rantemana. He testified that on the 31st January, 1988
he attended
the scene of the crime at Maphotong. He was accompa-nied by other
policemen. On arrival at Maphotong they examined
the corpse of the
deceased which was lying on the ground. He counted

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seven
wounds on the body of the deceased. He said that if the doctor who
performed a post-mortem examination found eight wounds
he cannot
challenge that finding.

The
evidence of Raseta Lephoto (P.W.2) is that at dust on the 30th
January, 1988 he was in the house of one 'Mommote Mohasi (P.W.3).
He
was in the company of 'Mammote, Mapastor (P.W.4), the deceased,
Maria, Glodia, Ephrase and Makuili. All of a sudden the accused

entered and insulted all the people in the house and asked the child,
Ephrase to come to his side so that he (accused) could kill
all the
satans. The deceased asked the accused why he was insulting those old
people amongst whom was 'Mapastoro.

'Mammote
expelled the accused and accompanied him out of the house.

Immediately
after that the deceased also went out.

At that
time Makuili was sitting near the door and directly opposite the
doorway. He exclaimed that 'that person has felled another
person
outside'. Raseta says that he immediately wont out and found the
deceased having fallen down near the door. The accused
was bending
over him and was stabbing him with a knife. He intervened and took a
sjambok from Makuili and lashed the accused with
it. He chased the
accused until they came to the gate and the accused tried to open the
gate but it could not open. It was then
the he turned and stabbed
Raseta with a knife on the left shoulder. After he was stabbed he
went back to where the deceased was
lying and found that he was in a
critical condition. He went away to look for a vehicle so that the
deceased could be taken to
the hospital. When he came back the
deceased was already dead.

4

'Mammote
Mohasi was in her house when the accused arrived and told her that he
was coming to take his tools. He had been building
a house for her
and he complained that she had not paid him and he threatened to
demolish the house. After taking his tools the
accused said that he
was coming to kill her and that the sun would not set before he had
killed a person. He left for his home.

'Mammote
says that when the accused returned to her house that evening a
number of people had already come to her house because
she had raised
an alarm when the accused threatened to kill her. Those people were
P.W.2, 'Mapastoro (P.W.4), Maria, Gloria, Ephrase
and Makuili. The
accused said that he was coming to kill them all and insulted them.
The deceased asked the accused why he was
insulting such old people.
He went out after she ('Mammote) had said rather than insult them it
was better that he must go and
take an iron rod and demolish the
house. A long time after the accused had gone out the deceased went
out. Immediately thereafter
Makuili exclaimed that a person had
fallen. They all got out of the house and found that the deceased had
fallen down and the accused
was not there. Raseta returned from the
gate and reported that the accused had stabbed him with a knife and
that the gate could
not open.

The
evidence of 'Mapastoro Lephoto (P.W.4) is the same with that of
'Mammote and Raseta as to what happened when the accused found
them
in 'Mammote's house. However, this witness had an encounter with the
accused earlier that evening. She was at her home at
about 4.00 p.m.
and she was cooking. She heard a person insult her. When she raised
her head shed noticed that it was the

5

accused.
He was very angry and said she and her lover must give him his pair
of pliers. He said he would kill her that evening and
that her
relatives would mourn her death. He said he would do to her what had
been done to a man of Qoaling, i.e. cut her neck.
She was so
frightened that she decided to go and report the threat to one
Raetiene who suggested that they should go to 'Mammote's
place. On
their arrival there Raetiene went to the home of the accused. He
never came back until the deceased arrived at 'Mammote's
home.

After the
Crown closed its case Mr. Ramolefe, counsel for the accused, applied
for the discharge of the accused in Count II. This
application was
refused on the ground that at the time the accused stabbed the
complainant, it cannot be said that he was defending
himself because
the accused had stopped whipping him with a sjambok.

Mr.
Ramolefe closed the defence case without calling any witness.

The
summary of the evidence of the Crown witnesses which has not been
controverted by the defence, is that on the afternoon of the
30th
January, 1988 the accused was in a very bad mood. He went to the home
of 'Mapastoro Lephoto at about 4.00 p.m. and accused
her of having
taken her pair of pliers. When she denied the accusation, he
threatened to kill her that evening. From there the
accused went to
the home of 'Mammote Mohasi and insulted her and took his tools
accusing her of refusing to pay him for the work
he had dore for her.
After taking his tools he said he was coming to kill her and that he
would kill a person before sunset.

6

Later
that evening the accused returned to the home of 'Mammote and
insulted all the people in the house and threatened to kill
them all.
The deceased asked him why he was insulting old people like
'Mapastoro. He did not answer that question but 'Mommote
expelled
him. He left. After he had left the deceased went out. Immediately
after that Makuili exclaimed that a person had fallen.
Raseta went
out and found the accused bending over the deceased and stabbing him
with a knife. Raseta took a sjambok from Makuili
and whipped the
accused with it. The latter ran away and Raseta chased him until they
came to the gate which could not open,

The facts
stated above he negative self defence because at the time Raseta went
out the accused was bending over the deceased and
stabbing him with a
knife. The deceased was stabbed eight times and there is no doubt
that those wounds or some of them caused
the haemopneumothorax and
that accused is responsible for the death of the deceased. In any
case the defence did not claim self-defence.
The entire
cross-examination was directed at attacking the credibility of the
Crown witnesses by trying to show contradictions
in their evidence at
the trial and in the preparatory examination.

Whatever
contradictions the defence succeeded to show were of such a minor
nature that the Court need not give them any serious
consideration.
If a party wishes to discredit another party's witnesses on the
ground that their statements in this Court are inconsistent
with
their statements at the preparatory examination, he must not rely on
minor variations of the words used in this Court

7

and the
words used in the court a quo. He must show that in substance the
evidence has changed. In the instant case the defence
failed to show
that in substance the evidence of the Crown in this Court differs
from their evidence in the court a quo.

The
defence hopelessly failed to put its case to the Crown witnesses. In
fact right up to the close of the defence case not the
slightest
indication was made as to what the defence is going to be. It was not
denied that the accused stabbed the deceased. It
was not alleged that
he stabbed him because the deceased provoked him or that the stabbing
was done in self-defence. To crown all,
the accused closed his case
without giving any evidence. I am not surprised that the defence
failed to raise any kind of defence
because when the charge was nead
to him, the accused pleaded guilty to both charges. He changed his
plea only after Mr. Ramolefe
had said the pleas were not in
accordance with his instructions and asked for an adjournment.
Whatever further instructions Mr.
Ramolefe got from the accused, he
did not disclose them to the Court. Not even drunkenness was claimed
by the defence.

Mr.
Qhomane. counsel for the Crown, submitted that the accused's failure
to give evidence is one of the factors that the Court must
take into
account in reaching its decision. In S. v. Khomo and others, 1975 (1)
S.A. 344 it was held that in cases in which the
accused has refrained
from offering any explanation, whether under oath or in a form of an
unsworn statement, in general,

8

greater
weight will be attached to silence where there is direct testimony
implicating the accused which the Court could reasonably
expect he
would simply explain if it were not true, than in a case where there
is no direct evidence, and where the question or
his guilt or
otherwise depends upon inferential reasoning.

In the
instant case the accused was seen by at least one witness. He was
bending over the deceased and stabbing him with a knife
Furthermore,
when Detective Trooper Sofeng asked the accused to give him the knife
he used to stab the deceased, he led him to
his yard and pointed out
a knife hidden in the bushes. There is direct evidence by one eye
witness and circumstantial evidence
of pointing out.

The Crown
witnesses agree that it was not yet dark when the deceased was
stabbed. They allege that it was at dusk and there was
a little light
from the moon.

I am
convinced that the accused had the necessary intention for murder in
that earlier that evening he told some of the Crown witnesses
that he
would kill a person before sunset. He carried out that intention by
killing the deceased who had not provoked him in any
way. The wounds
he inflicted are all on the chest and abdomen which are vital organs
of the body because they contain the heart,
lungs, kidneys etc. The
fact that he stabbed these vital and delicate parts of the body is a
clear indication of his intensity,
to kill.

In Count
2 the accused is charged with assaulting Raseta Lephoto with intent
to cause him grievous bodily harm.

9

Although
the accused tendered a plea of guilty to common assault, I think the
Crown has failed to rule out that the accused was
defending himself.
The evidence of Raseta is not convincing in this charge. At the
preparatory examination he is recorded as having
said, "I took a
sjambok from Makuili. I lashed accused with it. Accused ran away up
to the gate which refused to open. I got
to him and he stabbed me on
the left shoulder with a knife." In this Court he is now saying
that he chased the accused up
to the gate which could not open. He
came back to the deceased and when he was only a few paces from him
(deceased), he heard foot-steps
behind him. When he looked back the
accused stabbed him with a knife.

One of
the two statements cannot be true. And I think the last statement he
made in this Court is false. I am supported in this
finding because
there is evidence that when the accused came back from the gate he
told 'Mammote and 'Mapastoro that he had been
stabbed at the gate
where he quarelled with the accused.

It is
trite law that one cannot claim self-defence against a lawful arrest.
If Raseta intended to arrest the accused when he chased
him up to the
gate, the latter cannot be heard to say he stabbed the former in
self-defence. Raseta has not claimed that intended
to arrest the
accused and what seems to be clear is that he was whipping him with a
sjambok as a punishment for what ho had done
to the deceased. The
accused ran away but when he came to the gave he found that for some
unexplained reason it could not open.
It seems to me that he was
justified to defend himself by stabbing his aggressor. Raseta cannot
be heard to say that up to the
gate he was still defending the
deceased because as soon as the accused stepped

10

stabbing
the deceased and ran away, the life of the latter was no longer in
any imminent danger.

For the
reasons stated above I have come to the conclusion that in Count 1
the Crown has proved its case beyond a reasonable doubt.
The accused
is found guilty of murder.

In Count
2 the accused is found not guilty . My assessors agree.

J.L.
KHEOLA

JUDGE

21st May,
1990.

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EXTENUATING
CIRCUMSTANCES

In an
attempt to find out whether there are extenuating circumstances or
not the Court mero motu put the accused in the witness-box.
He gave
such an incoherent story that at the end of his evidence the Court
doubted his state of mind. He was immediately referred
to a
psychiatrist for a proper examination.

Dr.
Mohapeloa has now filed a report in which he has stated that the
accused has no mental abnormality; and that he is fit to stand
trial
and that in all probability he was normal at the time of the alleged
offence. During the inter­views the accused had
a tendency to
tell lies and Dr. Mohapeloa attributed this tendency to an attempt by
the accused to simulate insanity.

The
finding of the Court was that the accused had the intention to kill
in the legal sense or dolus eventual is. In S. v. Sigwahla
1967 (4)
S.A. 566 (A.D.) it was held that in determining whether, where an
accused is convicted of murder, there are extenuating
circumstances,
trial Courts, in their conspectus of possible extenuating
circumstances, should not overlook the fact (if it be
such) that it
is a case of dolus eventual is. While it cannot be said that this
factor must necessarily be an extenuating circumstance,
in many cases
it may well be so, either alone or together with other features,
depending on the particular facts of the case."

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In the
instant case the accused seemed to be unusually aggressive that
afternoon and wanted to fight or kill a number of people
for no
apparent reason. He made a number of false accusations against these
people and must have been under the same wrong impressions
when he
attacked the deceased.

no He had
no apparent motive to kill the deceased.

1 find
that there is an extenuating circumstance . Accused is guilty of
murder with extenuating circumstances.

Sentence:-
Nine (9) years' imprisonment.

J.L.
KHEOLA

JUDGE

8th
August, 1990.

For Crown
- Mr. Qhomane

For
Defence - Mr. Ramolefe