CRI/T/62/89

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MAKHOOA
NAPO

Held at
Qacha's Nek

JUDGMENT

Delivered
by the Hon. Mr Justice M.L. Lehohla on the 10th day of May,1990.

The
accused Makhooa Napo was jointly charged with accused 2 Mapota Napo
(since deceased) with the murder of Tlhahali Pheello Khobise
who
succumbed on 3rd May 1988 to stab wounds and injuries caused by a
stick and a two foot long dart wielded by the accused and
his late
father respectively.

The
defence admitted the Preparatory Examination depositions of :-

P.W.3
Makume Kholise P.W.4 Mahasele Kholise P.W.5 Police Woman Shata P.W.6
Dr. Molting P.W.7 L/Sgt. Ntlhola and P.W.9 Moiloa Mokhesi.

2

These
admissions were recorded on tape as part of evidence in these
proceedings after the crown accepted them.

The
additional evidence of P.W.10 Detective Sergeant Thakalekoala was led
by the crown and admitted by the defence. Its only importance
is that
the accused before court was properly cautioned, charged with the
offence on trial and arrested.

The
admitted evidence of P.W.6 shows that on 5th May 1988 he performed a
post mortem examination on the deceased and estimated that
death had
occurred two days previously.

According
to Ex."A" the post-mortem report it is shown that the cause
of death was due to

"haemorrhage from the right lung due to stabbing with a thin
long object."

On the
right upper arm of the deceased P.W.6 observed on "the interior
side 3 under wounds 5 cm wide." As to external
appearances P.W.6
observed

(a) the
face to be swollen,

(b) two
lacerations on the head,

(c) 3
very small (5 cm) wounds on the right side of the chest two of which
pierced the lungs while three only entered the body cavity.

With
regard to the skull P.W.6 observed that it had been fractured at back
and had a 5 cm long leceration above the fracture. There
was also a 7
cm long laceration towards the front of the head to the middle.

The crown
led the oral evidence of P.W.8 Kau Leaqoa whose level of intelligence
was far in excess of the Std 1 level of education
that he said he had
reached when he left school in the year that he cannot recall.

He told
the court that on the fateful day he had just

3

arrived
at Pekenene's place where Apostolic church services were in progress
but nearing the end when he and fellow church-goers
heard a noise of
some quarrelling people 100 to 150 paces away.

The
congregation rushed to the door and P.W.8 approached the people who
were quarrelling and found that they were the deceased who
is his
cousin and the accused and his father. The spot where the quarrel was
going on is at the bus stop.

When he
came to them P.W.8 says he took the deceased away when he realised
that the quarrel might lead to a fight. The quarrel was
centred
between the deceased

and the
accused's father.

Then
P.W.8 took away the deceased intending to go along with him to
Pekenene's place where P.W.8 had left his luggage However the

deceased did not reach Pekenene's place because when he and P.W.8
were about to reach the gate to Pekenene's yard the accused's
father
hurled an insult at him as well as calling to the deceased to come so
that the accused's father could kill him. Consequently
the deceased
made for his challenger.

P.W.8
said he was not in a position to know whether the deceased's
intention was to go and engage in a fight with the accused's
father
or to go and inquire why he was being insulted.

However
the description of the scene made by P.W.8 is that the deceased
though having approached the accused and his father at a
run, however
when he was some five paces away from them he was only walking with
his stick tucked lengthwise under his left armpit.
Then they
separated and he took a position between them facing the accused's
father.

While in
this position the deceased was facing away

4

from the
accused who there and then struck the deceased a severe blow with his
stick at the back of the head and on turning to face
the accused with
his stick still tucked under his armpit the latter struck him on the
front top part of the head.

I have no
doubt that due to the severity of the first blow at the back of the
head the deceased in turning hack was responding to
mere reflex
action. Thus I reject the suggestion attempting to cast doubt at
P.W.8's testimony that a man after being hit would
not behave in the
manner in which P.W.8 described. In the words of P.W.8 his
observation of the deceased's reaction after the first
blow is that
the deceased seemed to have been reacting to a surprise. In other
words his behaviour was of a man who seemed tot
to have expected the
blow that he received. I accept P.W.8's observation as satisfactory.

Then when
seeing all this P.W.8 was coming to the scene at a brisk pace. Thus
when the accused was about to deliver the third blow
at the deceased
who was then staggering P.W.8 was able to grab hold of the accused's
stick and snatch it from his grasp. At the
time the accused was
facing away from P.W.8. There and then the accused ran away waited
some eight paces away from the scene and
never took part in the
assault any longer.

Then
Mapota the accused's father was heard by P.W.8 to say "come let
me finish you off." These words were being addressed
to the
deceased.

P.W.8 saw
Mapota stab the deceased three times with the dart. He observed that
Mapota was stabbing the deceased on the upper arm.

The
deceased died some thirty minutes after the last stab with the dart
by Mapota.

P.W.8
says the stick which was held by the deceased was a timber stick;
while Mapota and his son were holding Hlathe sticks. The
accused's
stick formed part of the

5

admitted
evidence and was handed in by P.W.5.

P.W.8
indicated that when struck by the accused on the head the deceased
was posing no danger at all to Mapota. In any event from
my
observation of the evidence led the accused did not say that in
hitting the deceased he was acting in defence of his father.

Indeed
far from showing how and why he assaulted the deceased he stated that
it was not he but his father who had assaulted the
deceased with a
stick on the head.

Needless
to say this version of the accused's story was never put to the
witness who testified that he was present throughout the
second
encounter between the deceased and Mapota and the accused.

In Small
vs Smith 1954(3) SA at 434 it is stated as follows :-

"It is, in my opinion elementary and standard practice for a
party to put to each opposing witness so much of hie own case
or
defence as concerns that witness, and if need be, to inform him, if
he has not been given notice thereof, that other witnesses
will
contradict him, so as to give him fair warning and an opportunity of
explaining the contradiction and defending his own character.
It is
grossly unfair and impro­per to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that
he must
be disbelieved."

In the
course of giving his evidence the accused stated that the stick his
father was using belonged to the deceased. Once again
this version of
the accused fails on the basis of the authority just cited above.

The
accused went further to inform the court that he himself and his
father were armed with timber sticks. But it was never put
to P.W.8
that he was untruthful in stating that the accused and his father
were carrying "hlathe" sticks.

The crown
adduced evidence showing that while Mapota was busy stabbing the
deceased with the dart the accused

6

was
standing by and not doing anything to stop the process which he
himself had started. The accused on his part stated under oath
that
he snatched the stick which his father was assaulting the deceased
with. Once again P.W.8's evidence which contradicts the
accused's
version was not put to P.W.8 when the latter was giving evidence on
the point. Hence on the authority of Small above
accused's version is
rejected aw a mere fabrication or an afterthought.

I have no
doubt in my mind that P.W.8's evidence was impressive and most
satisfactory. It was given without any attempt to exaggerate

accused's role nor to minimise the role played by the deceased who is
P.W.8's cousin.

He was
ready to admit the existence of some slight conflict between his
evidence at P.E. and his evidence in this Court where he
said he only
persuaded the deceased to move from the scene by speaking to him
whereas at P.E. he had said he pulled him by hand
from the scene.

He stood
the cross-examination very well. He was not evasive and all his
explanations had the ring of truth to them.

In
argument and basing herself on the uncontradicted. evidence showing
that the accused merely stood by when his father was stabbing
the
deceased Miss Moruthoane for the crown referred me to a passage in S
vs Ngobozi 1972(3) SA where Holmes A J said:-

"Suppose A and B, each carrying a knife, form an unlawful common
purpose, in the execution whereof each is to play a contributory

part, to assault C by stabbing. In the ensuing scuffle, first A gets
in the fist and only stabbing-blow; and as the result C falls
dead.

Each is guilty of murder if he subjectively foresaw the possibility
of the execution of their unlawful common purpose causing the
death
of C, but never the less persistent reckless whether the possibility
became fact."

7

I am in
no doubt that the case cited above is on all fours with what we have
here.

The
accused's testimony has been typified by pitiable untruths. In the
middle of his being cross-examined he said he was guilty.

However
that is not the end of the matter; for the crown has to prove its
case before a verdict of guilty can be returned against
the accused
by a Court of Law.

In
Broadhurst vs Rex 1964 A.C. 441 at 457 Lord Devlin had this to say:

"It is very important that the jury should be carefully directed
on the effect of a conclusion, if they reach it, that the
accused is
lying. There is a natural tendency for a jury to think that if an
accused is lying, it must be because he is guilty,
and accordingly to
convict him without more ado. It is the duty of the judge to make it
clear to them that this is not so. Save
in one respect, a case in
which an accused gives untruthful evidence is not different from one
in which he gives no evidence at
all. In either case the burden
remains on the prosecution to prove the guilt of the accused. But if
on the proved facts two inferences
may be drawn about the accused's
conduct or state of mind, his untruthfulness is a factor which the
jury can properly take into
account as strengthening the inference of
guilt."

I have
considered the admitted evidence and that led before me and have come
to the conclusion that the crown has discharged its
onus and
accordingly find the accused guilty of murder as charged.

My
assessors agree.

JUDGE.

10th May,
1990.

8

EXTENUATING
CIRCUMSTANCES.

You don't
have to address me on extenuating circumstances, this man was playing
a minor role, his father had the overwhelming influence
on him. Can
you tell me about what I have got to consider before imposing
sentence?

Well, I
have found that there are extenuating circumstances in your case,
otherwise you would have had to be sentenced to death
for your act.
Your counsel has properly or rightly stated that you are a first
offender and that this has got to be taken into
account in assessing
an appropriate sentence to be imposed, and I have heard that you have
spent two years in Gaol and that you
are a first offender. I was
quite impressed with the fact that you have told me the truth by
telling me that you are guilty. Well,
my assessors and I agree that
you be sentenced to 10 years' imprisonment.

JUDGE.

10th May,
1990.

For Crown
: Miss Moruthoane

For
Defence : Mr Fosa.