CRI\T\33\89

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MOTLALEPULA
MOSOEDNYANE

J U D G M
E N T

Delivered
by the Hon, Mr, Justice M.L. Lehohla on the 10th day of December,
1993

Motlalapula
Mosoeunyane was charged with a crime of Murder it being alleged by
the Crown that "On or about the 17th December,
1989 and at or
near Koeneng in the district of Leribe he did unlawfully and
intentionally kill one Janeveke Montsi".

The
depositions at preparatory examination of

PW2
Trooper Motlatsi

PW6 Lineo
Mats'ela

PW7
Mohapi Ramokhethi

PW8
Malefane Montsi

were
admitted on behalf of the accused.

The
admissions were accepted by the crown. that portion of

2

evidence
which was admitted was read into the recording machine and made part
of the record in these proceedings.

It is,
even at this stage, important to bring attention to the fact that
when asked what hie plea was the accuaed said he was guilty
of
Murder. However the Court finding that perhaps there were doubts
about his understanding of what he meant about that, gave him
an
opportunity to consult with his Counsel whereupon he offered a plea
of guilty to Culpable Homicide which was rejected by the
crown.

In its
endeavour therefore to prove its case the crown called oral evidence
of two witnesses namely, PW1 'Mammeea Chabalala and
PW4, at P.E.)
Ts'ita Sebolai whose number I prefer adhering to, seeing that there
is another PW2 whose evidence has gone into the
record.

In brief
'Mammeea's evidence was that she is a lover of the accused. On the
day in question she met with the accused in her village,
It is
important to note that the accused comes from a far off village and
he had come, according to his evidence, to live in the
village of PW1
because he had some business there being attached to a traditional
doctor to whom he was apprenticed.

Having
met in this village they headed for a place where

3

beer was
sold, PW1 bought 60c worth of beer making two scales which were
placed in a barberton tin.

According
to her evidence PW1 knocked back about half of this and offered the
rest to the accused who refused to drink it.

It
appears that their encounter at this time too was not very auspicious
because a few days or so before the accused had assaulted
PW1, and
this he admits. He had assaulted her on the cheeks with his knife.
Thereupon the lover threatened to take him to court
or told him that
she had registered her complaint with the Local Court.

It is the
evidence of PW1 that in fact they had gone first to a place where
there was a removal of the mourning cloth; and then
left that place
because the accused was ordering her to seize scales of beer from
people who had come to that ceremony. Nonetheless
she kept him
company to the other place where beer was for sale. Apparently the
accused was not very happy that day,

He left
PW1 there and she remained drinking; and according to her evidence
she seized this as a fine opportunity for her to got
separated from
the accused, at least for the day. However on her way to her home she
met with the deceased and one Matoli. Monts'i,
They persuaded her to
go back to the place where beer

4

was sold.
That she did; but before she and the two reached that place she
observed the accused going somewhere in the opposite direction
but
around the other side of a kraal.

After a
while the accused came back. It is PW1's evidence that she had
resumed drinking what beer she had left in the first place
while the
two companions who had joined her were busy buying themselves drinks.

It was
while this was going on that the accused came and surprised her and
others by striking her across the breast and charging
her with having
refused to accompany him when he had asked her to do so earlier.

PW1 says
she was surprised at this because at no stage had the accused
suggested earlier to her that they should leave that place,
The
deceased and his companion observing and taking dislike at what they
saw namely the striking across the breast of PW1 by the
accused
raised an objection asking him "why do you strike that woman
with that stick" and the utterance of these words
was attributed
to the deceased.

But
contrary to the accused taking umbrage at the utterer of these words;
namely the deceased, he attacked the deceased's companion.

5

The two
men joined forces and intervened on the aide of PW1, Naturally the
accused was no match to this combined effort of two men.
He lost the
fight and left.

No doubt
he was smarting with anger at the fact that he had lost the fight. It
is PW1's evidence that when the accused. betook himself
from the
scene of fight he had visible injury on his cheek and it is stated
that the resistance offered to the accused by the two
men was by
means of sticks.

We have
an exhibit here which was taken collectively with others which is
apparently a stick but actually a spear. Though this is
a spear no
where according to crown evidence was it used as a spear, In fact the
policeman who came to the scene and found the
stick lying next to the
deceased thought that in fact It was a stick. Thus in his evidence he
said it turned out to be a spear.

The
importance of this distinction will come clear as a summary of this
evidence is being treated.

No sooner
had the accused decamped from this field of fight than he came back;
this time armed with a knife observed by these witnesses
from a
distance of about 20 or so paces away from where

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they were
sitting.

It is
said he came running and that the knife was unclasped

On
observing him in that sort of mood PW1, the deceased and Matoli ran
away. The accused made for Matoli who jumped over the wall;
failing
that Matoli he made a bee-line for the deceased.

It is the
evidence of PW4 that the deceased was very drunk and wobbly in his
legs. No sooner had the accused caught up with the
deceased than he
inflicted a stab wound through his chest wall that penetrated right
into the deceased's heart.

It is the
evidence of the crown that at the time - and that is common cause -
that the stabbing took place in this way the two men
were facing each
other.

It is
PW4's evidence that indeed the deceased had tried but failed to
deliver the blow by which he was to ward off the attack by
the
accused.

The
deceased fell and died immediately thereafter. The accused ran away
only to be caught up with by some people who brought him
back to the
scene.

The
accused's version of the events is totally different

7

from the
one portrayed by the crown witnesses. Bedevilled, I think, in this
way by the fact that it was never put to the crown witnesses

therefore it could never be tested against the crown's evidence. He
stated that he and PW1 went to a place which he doesn't know
very
well whether it was a place where the mourning cloth was to be
removed or just a place where drinks were being taken for free.

He Stated
further that they went to a Cafe where they took castle beer before
proceeding to this place where they came to buy sesotho
beer.

It Was
never put to PW1 that she and the accused went to any Cafe where
castle beer was sold to them.

The
accused related a story to the effect that he and PW1 left the beer
selling place together and on their way met with Matoli
and the
deceased. These gentlemen suggested to him that he and his girl
friend should join them back to the place where beer was
being sold.

The
accused declined this offer and preferred to go to a place nearby
where beer was being dished out for free.

This text
is totally different from the version that was put by PW1 before this
Court. Asked why he didn't put these things

8

through
his Counsel to the opposite aide he stated that he didn't realise it
was important or if he did realise it was important,
he didn't have
an opportunity to do that sort of thing. He stated further that he
had not instructed his Counsel in that regard.
So this may, to some
extent, account for failure by an accused person to enlighten the
Court as to what his actual story is because
it failed to be tested
against that for the other side. It is very strange indeed that
aspects of the other side's story which
are in sharp contrast to the
accused should be let pass in silence when related in the presence of
the accused whose business it
was to bring such to his Counsel's
notice.

Not only
that: but he went further to state that when at some later stage he
came to the scene he started playing with his girl
friend by striking
her across the breast with a short poplar stick and the two men i.e.
the deceased and Matoli raised an objection
at this and attacked him.

The
deceased stabbed him with the spear on the cheek and twice on the
thigh. It was thanks to the intervention of an elderly gentleman
that
the accused managed to betake himself from that attack.

When the
accused had gone something like 50 or so paces away from the scene of
fight he felt his thigh stiffen. The wounded thigh
stiffened and
thereupon he thought of going back to the

9

scene of
fight to ask the elderly gentleman to confront him with the two
attackers about why they attacked him. What surprised him
is that
when he was about 20 paces or so away the two men i.e. Matoli and the
deceased rose separated and converged on him,

It was
during this process that Matoli made good his escape; and thus was
the accused left with the deceased whom he stabbed with
a knife and
the injury inflicted proved fatal. Then because of fright he ran
away.

It was
never put to the crown witnesses that these two men i.e. the deceased
and Matoli including PW1 rose and scattered only to
make a bee-line
for the accused, nor was the important aspect of the defence case put
to any of the crown witnesses namely that
he was stabbed by the
deceased with this spear twice on the thigh. This is not the type of
omission that even the most foolish
of people who suffered a thing of
this nature could make if a thing of such nature was true at all. The
accused's story is not
only improbable but inherently false. Thus is
deserves rejection. It is most lacking in substance when viewed
against the back-ground
that he said PW1and PW4 must have seen him
being injured in the thigh or at least must have noticed the obvious
fact that his thigh
was injured with a spear.

Therefore
in preference to the crown's request to the Court, it is rejected as
just an after-thought. The Court however has

10

had
regard to the fact that the accused had sustained injury on the
cheek. But again the problem with this injury is that it doesn't
seem
to have been unjustified because the accused himself was offering an
unjustified attack against people who were trying to
intervene for a
defenseless woman.

So any
reference to so-called provocation is not provocation as understood
in the law - the type of provocation which the law recognises
and
protects.

In terms
of our Criminal Law (Homicide) Amendment Proclamation No.42 of 1959
Section 4(a) provocation is defined as follows :

"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 ordinary person to another person who is under his

immediate care 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".

Sub-sections
3(1) and (2) respectively read as follows : Sub-section 3(1) says -

"A person who

(a) unlawfully kills another under circumstances which but for the
provisions of this section would constitute 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".

11

Sub-section
(2) says -

"The provison of this section shall not apply unless the Court
is satisfied that the act which causes death bears a reasonable

relationship to the provocation".

Needless
to say in this particular case there is no reasonable relationship
between the act which caused death and the so-called
provocation . I
have tried to indicate that a defence would suffer failure if it is
not put to the crown unless the crown has been
unable to discharge
the onus cast on it to prove its case.

The
authority for that proposition is to be found in the case of Phaloane
vs Rex 1981(2) LLR 246 but paraphrased in Rex vs Mosala
Lenka
(unreported) CRI\T\48\1988 as follows :

"I may go further and say the rationale behind this purpose is
to avoid the criticism that the party who fails to put his
version to
the other side is fabricating. Even allowing for the latitude
afforded in criminal trials an omission of the kind manifested
in
this case and conceded by the accused is most telling for it relates
to a very important aspect of his case".

On this
ground the accused's attempt at seizing self-defence at this late
hour is flawed as a mere afterthought or fabrication.

I have so
far related the evidence concerning the accused's failure in his
defence.

12

But there
is also need for apportionment of blame in this regard because the
defence properly conceived as such is some kind of
a team between
Counsel and his or her client.

This
aspect of the matter came out in the case of Letsosa Hanyane vs Rex
C. of A. (CRI) No.2 of 1983 (unreported) at page

13

From the above analysis it emerges that many at least of the trial
Court's criticisms of the appellant may properly belong to his

Counsel at the trial. (I do not say that they do). But when at least
one instance seems to have been shown to be the fault of Counsel,
I
think that it would be dangerous to embark on the hip and thigh
smiting of the appellant that the trial Court embarked on."

Having
gone this far then it remains to determine what in fact, (if at all
an offence has been committed by the accused) the nature
of that
offence is.

If at all
there was a question of self-defence on the part of the accused, it
fails to hold against the victim who was running away
from him. It
will also be flawed on the ground that having betaken himself from
the scene the accused came back to face the danger
if there was any
danger at all. In fact in his own words his purpose (and in the words
of his Counsel who put questions to the
crown witnesses) he came back
to revenge.

So the
defence of self-defence cannot avail the accused in these
circumstances.

What
remains now is the question of what part if any did drink play in
this whole episode.

14

From the
above analysis it emerges that many at least of the trial Court's
criticisms of the appellant may properly belong to his
Counsel at the
trial. (I do not say that they do). But when at least one instance
seems to have been shown to be the fault of Counsel,
I think that it
would be dangerous to embark on the hip and thigh smiting of the
appellant that the trial Court embarked on."

Having
gone this far then it remains to determine what in

fact, (if
at all an offence has been committed by the accused) the nature of
that offence is.

If at all
there was a question of self-defence on the part of the accused, it
fails to hold against the victim who was running away
from him. It
will also be flawed on the ground that having betaken himself from
the scene the accused came back to face the danger
if there was any
danger at all. In fact in his own words his purpose (and in the words
of his Counsel who put questions to the
crown witnesses) he came back
to revenge.

So the
defence of self-defence cannot avail the accused in these
circumstances.

What
remains now is the question of what part if any did drink play in
this whole episode.

15

t was
PW1's evidence that the accused seemed to have already been drunk
when he joined her. But at the only place where they had
occasion to
sit down on drinks the accused didn't drink.

The
evidence of PW4 although initially was to the effect that the accused
was so drunk as to be wobbly and staggering, it was resiled
from by
the same witness who said he made a mistake. By the accused he
actually meant the deceased.

However
to his credit the same witness indicated that on that day the accused
whom he had observed drinking on previous occasions
appeared to be
more drunk than ever before.

Indeed it
could be assumed or inferred that during the little time he
disappeared from the company of either his girl friend PW1
or her
companions i.e. the deceased and Matoli the accused must have taken
drink. But still the question is whether this drink
was sufficient to
negative the specific intent

necessary
for murder. Indeed drunkenness as such is a good defence in the crime
of Murder.

The only
problem with the defence of drunkenness is that once one has reached
such an advanced stage of drunkenness as not to understand
what one
is doing then the fate of such man would be to be committed to a
place of custody pending the

16

signification
of His Majesty, In other words a man like that stays in prison for an
indefinite length of time; and many people don't
readily seize this
type of defence perhaps, especially for this reason. Drink itself
when taken more than moderately may serve
to negative the intent
required for proof of Murder; in which case an accused person would
be found guilty of Culpable Homicide.

But the
question of intent is very difficult because it relates to the state
of a man's mind. Indeed there is a saying that the
state of a man's
mind is as much of a fact as the state of his digestion. Of the
latter doctors and nurses know very little; and
of the former judges
and lawyers know hardly anything at all.

Therefore
all that one can embark on is to gather evidence from circumstances
surrounding what could betray the state of a man's
mind. That he was
able to identify his victim shows that the accused was not all that
drunk after all.

That he
stabbed him in the region of the heart, a very vital organ is a clear
indication that his intention was to finish him off
at all costs.
That the weapon he used was this lethal knife is a matter from which
factors relating to intention can be gathered.
That he ran away after
accomplishing his mission shows that he had no longer any business in
that vicinity once he had

17

felled
the deceased. I agree that the accused is guilty of Murder as
charged.

The Court
having found extenuating circumstances to exist proceeded to hear
address in mitigation and conclude that PW1 was tolerating
the
accused on that day because she seized the earliest opportunity she
had of separating from the accused. Thus she intended stealing
away
from him and she indicated that she was feeling under a terrible
strain of intimidation throughout the time she spent with
the
accused,

In a
direct statement to the accused the Court said:

I think
it would be proper to keep you in jail for a considerable length of
time. Regard of course will also be had to the fact
that in
accordance with custom you will be required to raise the head of the
deceased. So the sentence will be long enough to keep
you out of
circulation for sometime, but short enough to enable you to be ready
to raise the deceased's head.

The most
lenient sentence that the Court imposes on you is that of being
sentenced to 8 years' imprisonment.

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My
Assessors agree,

JUDGE

10th
December, 1993

For Crown
: Miss Nku

For
Defence Miss Letete