CRI\T\36\91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

SEKHOAHLA
NEHELO Accused

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 28th day of May.
1993.

The
accused is charged with the murder of Kabelo Rantso on or about the
10th day of June, 1990 and at or near ha Mohasi in the district
of
Leribe.

He
pleaded not guilty to the charge.

The
defence admitted all the depositions of the Crown witnesses at the
preparatory examination except the deposition of P.W.3 Malefetsane

Mothetsi.

P.W.3
testified that on the day in question he visited his aunt for the
whole day. At about 11.00 p.m. he returned to his parents'
home. On
his way be found the accused and the deceased fighting with each
other near the home of the accused. They were

2

fighting
with sticks. The accused was in his yard and the deceased was
outside. The accused's yard is not fenced with the usual
barbed wire
but with long poles which are at right angle to the vertical posts.
The accused and the deceased were separated by
the poles but were
very close to each other as they exchanged blows with the sticks. The
accused was saying: "I shall kill
you, it is a long time since
you started troubling me."

P.W.3
says that he became frightened and hid himself behind a tree and
watched the fight from there. The fight with sticks continued
for
some time until the accused produced a spear-like weapon and stabbed
the deceased with it on the chest. The latter fell down.
The accused
had been holding the spear-like object in his left hand and a stick
in the right hand. Just before he stabbed the deceased
he transferred
the stick to the left band and held the spear-like object in the
right hand. That weapon was about a metre long.

After the
deceased had fallen down the accused jumped over the poles and went
to him. He took out a knife and stabbed him many times.
P.W.3 did not
count how many times the accused stabbed the deceased after the
latter had fallen down. The deceased was just lying
there and making
no movement when the accused was stabbing him. After that he jumped
over the poles

3

into his
yard and went to his house. He brought a torch and lit up the
deceased and said: "'Mamapepe, I have killed him,"

'Mamapepe is the accused's wife but she was not there when the
accused uttered those words. He went back to his house and then
left.

P.W.3
says that he went to the home of one Moeketsi who is the neighbour of
the accused. He was going to report to him what had
happened. He
found Moeketsi standing at the door of his house. Even before he made
his report; Moeketsi said that he had seen what
happened. They both
proceeded to the home of P.W.1 Karabo Motjetsi for the purpose of
reporting what had happened. On their way
they met one Neo who took
them back to the deceased. Neo confirmed that the deceased was dead.
From there P.W.3 went to his home
and slept.

The
evidence of P.W.1 Karabo Motjetsi is to the effect that on the day in
question there was a feast at his home. Late that evening
he found
the accused and the deceased sitting down in one of his houses. He
listened to their conversation and heard that they
were exchanging
insulting words. Because he knew that the accused and deceased were
very troublesome people who always quarrelled
with each other, he
expelled them from his premises. They left. During the night an alarm
was raised and the deceased was found
dead near the yard of the
accused. In order to reach

4

his place
the deceased did not have to pass there where he was found dead.

P.W.2 Dr.
Brissi He Schusster testified that on the 13th June, 1990 he
performed an autopsy on the body of the deceased. He formed
the
opinion that death was due to haematothorax (left) caused by a
stabwound; the left lung was lacerated. The deceased had multiple

stabwounds on the head, face, left chest side and back side chest.

P.W.4
Kokoana Motjeketjane deposed that on the night in question the
accused came to his home and reported that he had killed a
person and
that that person was in the graveyard.

P.W.5
Detective Trooper Chabalala deposed that on the 10th June, 1990 he
went to ha Nkhasi and was shown a dead body of a male person

identified as the deceased in this case. He examined it and found the
following wounds: a wound above the left eye, one on the
left ear,
one on the neck, ten wounds on the left ribs, eight wounds at the
back and two wounds on the head. He carried the dead
body to the
mortuary.

P.W.6
Police Woman Nkoro testified that on the 10th June, 1990 was on duty
at Hlotse police station when the accused reported himself
to her and
gave her a knife. He said he had

5

killed a
person with that knife.

The
accused gave a sworn statement to the effect that on the 10th June,
1990 he went to a feast at the home of Ncheme. He was given
some food
and while he was eating the deceased came and started grumbling. He
ignored him because he always behaved in that manner
whenever he saw
him. Later that afternoon that the accused received a message a
friend at Lekhalong wanted to see him immediately.
He left for
Lekhalong accompanied by a woman who was a visitor in the village. On
their way he deviated and went into the donga
to relieve nature.
While he was there he heard the woman screaming. He rushed back to
where he had left the woman. The deceased
was chasing the woman. The
accused says that he intervened and stopped the deceased from
harassing the woman. Surprisingly instead
of continuing with his
journey to Lekhalong he returned to P.W.1's place leaving the
deceased with that woman because it turned
out that she was his
lover.

The
accused returned to P.W.1's place and he was given some bear. He sat
down and drank it. The deceased suddenly appeared and insulted
him
and asked him to come aside. He sat down and drank it. The deceased
suddenly appeared and insulted him and asked him to come
aside. The
people who were sitting with him stopped the deceased from causing
trouble. The accused says that he was hurt by the
behaviour of the
deceased. He went into the

6

house and
found Ngaka and Lebusetsa sitting on a bench. He sat between them. He
was given some beer. While he was drinking his beer
the deceased came
into the bouse. He caught him by the shoulders and raised him up. He
said he (accused) should come out so that
he (deceased) can beat up
his small belly. Ngaka intervened and reprimanded the deceased. When
P.W.1 came he expelled them from
his premises. It was at about
10.00p.m.

The
accused says that when he left for his home the deceased followed him
and kept on insulting him. When he came to his yard he
went to the
gate. The deceased jumped over the poles which form a fence around
the yard and intercepted him before he came to the
house. The accused
went to him and pointed his stick at him. The deceased reacted by
delivering a stick blow at him. A fierce stick
fight ensued. One of
the blows delivered by the accused landed on the head of the deceased
and caused an open wound. The deceased
retreated and jumped over the
fence to the other aide. The accused remained inside the fence and
checked the wounds he had sustained.

The
deceased produced a hat from his pocket and wiped off the blood from
his head. He looked at the hat and cried out and said:
"Am I
like this". He insulted the accused and rushed towards him. The
accused says that he felt frightened and nearly
ran away. However, he
did not do so although he had the chance.

7

They were
again engaged in a savage fight with their sticks. Accused landed
another blow on the head of the deceased. He (deceased)
retreated and
took the path leading down the slope. He took about three or four
steps and put his hand in his pocket. He took out
a knife which was
already unclasped. He came rushing towards the accused.

The
accused says that he struck the hand holding the knife. It fell down
outside the yard. They both rushed for it. But the accused
came to it
first and took it. The deceased came and jumped on to his right
upperarm. He thrust the knife at him and stabbed him
on the chest.
The deceased turned and it appeared as if he was looking for
something on the ground. He sat on the ground. The accused
says that
he did not continue the fight after the deceased sat down. He went to
his house and reported to bis wife. He took a blanket
and a torch and
went to the charge office. He gave P.W.6 the knife and the stick. He
denies that he repeatedly stabbed the deceased
after he sat down. He
denies that he stabbed him with a weapon which looked like a spear.

The
evidence of P.W.3 who is the only eye-witness is challenged on the
ground that it is unreliable. It was submitted that if he
was there
the natural reaction by him would have been to raise an alarm. He did
nothing but merely watched the fight

8

from
behind a tree where he was hiding. At the relevant time P.W.3 was
only about 19 years old. He was still a youth and not mature
enough
to be expected to make wise decisions when he is confronted with an
emergency, I am of the view that he did his best by
reporting the
incident to the accused's neighbour immediately after the end of the
fight,

I had a
very good impression of P.W.3 as a witness and that he was truthful
and honest. He gave his evidence well and answered questions
put to
him in a satisfactory manner. In any case his evidence is to some
extent corroborated by that of the accused. He came to
the scene of
the fight after it had started. He says that the accused was inside
the yard and the deceased was outside. In other
words during the
stick fight the combatants were separated by the fence. This part of
his evidence is corroborated by the accused.
It is inconceivable how
he could make up such a story unless he saw the fight.

P.W.3
says that the accused used a weapon which resembled a spear to stab
the deceased on the chest. I am of the view that there
is substance
in his evidence. When two people are fighting with sticks and there
is a fence separating them from each other, it
is almost impossible
to extend one's arm and stab the other person with a knife. The other
person would be about two paces away
where he cannot be reached by
hand. Moreover, the accused

9

would
have exposed himself to serious danger to hie head when, he extended
his right arm leaving his head exposed. However, with
a spear-like
weapon which was about one meter long it would be very easy to reach
out for the target.

Regarding
the number of injuries inflicted by the accused with the knife, the
evidence of P.W.3 is corroborated by the doctor who
performed the
autopsy and the police officer who examined the dead body of the
deceased. There were well over twenty stabwounds
on the body of the
deceased. This is consistent with the evidence of P.W.3 that after
the deceased had fallen down the accused
took out a knife and stabbed
him many times.

On the
other hand the accused has told the Court nothing but a pack of lies.
On the question of injuries he says that he stabbed
the deceased on
the chest once and left him sitting down. This is a lie. He was seen
by P.w.3 when he jumped over the fence and
stabbed the deceased
numerous times. When he is asked to account for the numerous wounds
found on the dead body, he boldly says
that that question can be put
to P.W.3 who remained with him. I think that is an unsatisfactory
explanation after P.W.3 has explained
what happened.

His
explanation of how he got the possession of the knife

10

is not
only improbable but false beyond any reasonable doubt. He says that
as the deceased came towards him with a knife in his
right hand, he
struck that hand holding the knife with his stick. It fell outside
the yard. They both rushed at it. He was so quick
that he reached the
knife before the deceased did so. That is improbable because the
knife fell on the deceased's side of the fence.
He (deceased) would
have reached it before the accused did so.

Another
lie that the accused has told this Court is that in the stick fight
he was the victor because he managed to land about two
blows on the
head of the deceased at different times. The doctor found no
lacerations on the head but stabwounds. A stick cannot
cause a
stabwound when the blows are delivered in the manner the accused
described. There ought to have been lacerations on the
bead. This
again confirms the evidence of P.W.3 that the infliction of the wound
on the chest was the cause of the deceased's fall.

I shall
now deal with the question of self-defence because what the accused
is saying is that he was defending himself against an
unlawful attack
within his premises. I have already rejected his story but even if
his story were to be believed I am of the view
that self-defence is
not available to him. In Gardiner and Lansdow's Criminal Law and
Procedure, Vol.2.p.

11

1413, the
following propositions, based on authority, are stated; we quote in
so far as they are relevant to this case.

"Where a man can save himself by flight, he should flee rather
than kill his assailant. So think Matthews (48,5,3,7,) and
Moorman
(2.2.12) and see also van der Linden (2.5.9); R.v.Odgers (1843) 2
Mood & R. 479; R.v. Smith (1837) 8 C&P.160: but
Danhounder
(c.72) with his ideas of defence against dishonour, is of the
contrary opinion. But no one can be expected to take to
flight to
avoid an attack, if flight does not afford him a safe way of escape.
A man is not bound to expose himself to the risk
of a stab in the
back, when by killing his assailant he can secure his own safety...
Moorman (2.2.12); van Quistory, para. 244....
In considering the
question of self-defence, a jury must endeavour to imagine itself in
the position in which the accused was","

In the
instant case and according to the accused's version there were two
occasions when he had ample chance to flee. He

12

says that
he had nowhere to flee to because the attack was within his own
premises. The first occasion is when he allegedly struck
the deceased
on the head with a stick at the time they were fighting in the yard.
He says that the deceased retreated and jumped
over the fence. He
took out a hat from his pocket and wiped off the blood from his head.
He then looked at the blood on the hat
and then rushed at the
accused. I am of the view that the accused had ample chance to flee
when the deceased retreated and jumped
over the fence and took out a
hat from the pocket, looked at it and then started the attack again.
The accused could have fled
and could not have exposed himself to
risk of a stab at the back because the deceased was far from him. He
had to jump over the
fence before he came to the accused. The accused
seems to be under the impression that he could not be expected to run
away from
his own home. That is not what the law says. The law is
that where a man can save himself by flight, he should flee other
than
kill his assailant.

The
second occasion was when again the accused landed another stick blow
on the head of the deceased. The blow had the desired effect
because
the deceased turned and walked along the path that goes down the
slope. He was walking in a direction leading away from
the accused.
When he was a few paces from the accused he took out a knife from the
pocket and again attacked the accused who was
still on the other side
of the fence. The

13

accused
had ample chance to run away to save himself. He did not do so
because he thought the accused would set his houses on fire
or kill
his children. That is sheer speculation because the accused was
fighting with the accused and not his children. He never
had the
intention to set accused's houses on fire. If he had such an
intention he would have gone there at night when the accused
and his
children were asleep.

If the
accused was protecting his dignity, our law does not allow him to do
so. If there is a chance to flee without putting his
life at risk he
must do so. I have found that the accused had such a chance on two
occasions before he fatally wounded the deceased.
But as I have said
above the story of the accused is nothing but a pack of lies.

According
to the evidence of the doctor who performed an autopsy upon the body
of the deceased there were multiple stabwounds on
the left side of
the chest. Detective Trooper Chabalala counted ten stabwounds on the
left side of the chest. It is common cause
that only one stabwound on
the chest was the cause of death.

Mr.
Mathafeng, counsel for the defence, submitted that the first
stabwound which incapacited the deceased forcing him to sit down
or
to fall down according to the Crown witness, was

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inflicted
under the circumstances which justified self-defence. I have stated
above that the present case is not a case of self-defence.
If two
people are separated by a fence consisting of poles they cannot be
heard to say they had not chance to flee in order to
save their
lives. The accused and the deceased could have saved their lives by
flight without exposing themselves to a stab or
a blow at the back.
The deceased did retreat and jump over the fence without any fatal
consequences. He did turn and walkaway without
any fatal consequences
to himself. The accused had every chance to do the same.

In the
result I come to the conclusion that the accused had the intention to
kill the deceased in the sense that he foresaw the
possibility that
his actions may cause the death of the deceased but he was reckless
as to whether death occurred or not.

For the
reasons stated above the Crown has proved its case beyond a
reasonable doubt. The accused is found guilty of murder as charged.

My
Assessors agree.

J.L.
KHEOLA

JUDGE

15 28th
May, 1993.

For Crown
- Mr. Ramafole

For
Defence - Mr. Mathafeng.

EXTENUATING
CIRCUMSTANCES

It is
trite law that absence of factors justifying a finding of dolus
directus is an extenuating factor. In the present case I found
that
the intent of the accused was dolus eventualis. See R. v. Sigwahla,
1967 (4) S.A. 566 (A.D.) at p. 571.

I also
found that there was no premeditation which is closely linked to the
absence of dolus directus and presence of provocation
as extenuating
circumstances.

Mr.
Mathafeng submitted that if the accused kills in circumstances which
do not justify killing in self-defence but honestly believing
his
conduct to be justified, his belief may be an extenuating
circumstance. See R. v. Werner and another 1947 (2) S.A.828 (A.D.)
at
p. 837; R.v. Kgau 1958 (2) S.A. 606 (S.W.A.). In the instant case the
evidence of the accused establishes beyond any doubt that
he honestly
believed that his conduct was justified. The deceased was a
troublesome person who followed the accused and attacked
him near his
home.

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I find
that there are extenuating circumstances.

Sentence:
Seven (7) years' imprisonment.

My
assessors agree.

JUDGE

28th May,
1993.

For
Crown: Mr. Ramafole

For
Defence: Mr. Mathafeng.