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CRI/T/89/91

IN THE
HIGH COURT OF LESOTHO

In the
Matter of:

REX

VS

MOFIHLI
SEFEANE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 2nd day of March, 1993.

The
accused is before me on a charge of murder, it being alleged that on
or about 15th March, 1989 and at or near Ha Makhakhe in
the district
of Mafeteng he unlawfully and intentionally killed Mokalanyane Mosoa.
When it was put to him, the accused pleaded
not guilty to the charge.

In the
course of the trial Mr, Mathafeng, counsel for the defence, admitted
the depositions of Pule Mosoa, D/Tpr. Mphoto and P/W
Lesia who were
P.W.1, P.W.6 and P.W.7, respectively, at the proceedings of
Preparatory Examination.

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Mr.
Ramafole who represents the Crown in this trial accepted the
admissions made by the defence. The depositions of P.W.1P.W.6 and

P.W.7 at the Preparatory Examination proceedings were, therefore,
accepted as evidence and it became unnecessary to call the deponents

as witnesses in this trial.

It may
also be mentioned that it was disclosed, in the course of the crown
evidence, that Maphure Mokoma who was P.W.4 at the Preparatory

Examination proceedings had since died and,was therefore, not
available to testify in this trial. By consent of both counsels his

depositions, at the Preparatory Examination, were, however, accepted
as evidence in this trial. The Medical doctor who performed
the
post-mortem examination on the dead body of the deceased was an
expatriate. He has since returned to his country and is not
available
to testify in this trial. Likewise his post-mortem Examination report
on the body of the deceased was, by consent of
both counsels handed
in, from the bar, as exhibit "A".

Mr.
Ramafole for the crown informed the court that the crown was
dispensing with the evidence of Maki Motau and Napo Motsoahae who

were P.W.5 and P.W.8, respectively, at the proceedings of the
Preparatory Examination. The witnesses were, therefore, made
available
to the defence, if it so wished.

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Briefly
stated, the evidence relied upon by the crown was that of D/Tper.
Mphoto according to whom he was a police officer stationed
at
Matelile police post. On 15th March, 1989 he was on duty at his
police post when he received a certain report following which
he
proceeded to the village of Ha Makhakhe where he found the body of
the deceased. He examined the body for injuries and found
that it had
sustained two open wounds, one below the right breast and another
above the left breast.

Following
his investigations, D/Tpr Mphoto met the accused, cautioned and
charged him as aforesaid. He conveyed the dead body of
the deceased
in a police vehicle to the mortuary. It did not sustain additional
injuries whilst it was being transported from Ha
Makhakhe to the
mortuary.

According
to the Post-mortem examination report - axh "A"-on 17th
March, 1989 the medical Doctor at Mafeteng Government
Hospital
examined a dead body of a male Mosotho adult. The body was identified
as that of the deceased, Mokalanyane Mosoa, by Sebitsa
Mosoa and Pule
Mosoa. This is confirmed by Pule Mosoa who, according to his
evidence, is the son of the deceased.

The
findings of the Medical Doctor were that the deceased had sustained a
superficial laceration on the right chest and a deep laceration
on
the carotid area of the left aspect of the

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neck. On
opening the body, the doctor found that the left carotid was
amputated and the pericardial sac filled with clotted blood.
From
these findings the doctor formed the opinion that the deceased'8
death was due to post intrapericadial haemorrhage and shock
as a
result of the injuries he had sustained.

I can
think of no good reasons why the opinion of the medical doctor that
the deceased died as a result of the injuries inflicted
upon him
should be doubted. The salient question that immediately arises is
whether the accused is the person who inflicted the
injuries on the
deceased and,therefore, brought about his death.

In this
regard it is perhaps necessary to mention, from the word go, that it
is common cause that the accused is married to the
daughter of the
deceased who was, therefore, hie father-in-law. The court heard the
evidence of P.W.1, Motlatsi Molupe, who testified
that he worked as a
salesman at the shop of one Maneo in the village of Ha Makhakhe. On
the afternoon of the day in question, 15th
March, 1989, he and a
co-worker viz. 'Mapalesa Makhakhe were sitting outside the shop. He
noticed 'Mapalesa hurriedly getting up
and going into the shop. When
he looked around P.W.1 saw a certain 'Maphure Mokoma and the deceased
entering through the gate leading
into the shop premises. The
deceased was holding a small poplar stick. They

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were
followed by the accused who was holding an unclaspped yellowish knife
in his hand. When Maphure and the deceased passed where
he was
seated, the latter stopped whilst the former went into the shop.

On
arrival at the spot where he was standing, the accused touched the
deceased on the shoulder and asked him whether he went about
carrying
a stick for him. The deceased then turned around and faced towards
the accused saying: "wait child, why do you keep
on following
me?" or words to that effect. Fearing that the accused might
stab the deceased with the knife he was holding
P.W.1stood up from
where he had been seated and went to the two men. He warned the
accused not to do what he was apparently up
to and ordered him out of
the shop premises. The accused did not heed his warning. He instead
stabbed the deceased above the left
breast with the knife he was
holding in his hand.

Initially
P.W.1 told the court that a fight then ensured between the two men.
In the course of the fight the deceased was merely
wielding his stick
in front of the accused who was delivering blows on him with the
knife. However, P.W.1later conceded that after
the accused had
stabbed the deceased, the two men were fighting each other. The
deceased was delivering blows with his stick at
the accused, who was
dodging and also delivering blows with his knife at the deceased. The
blows

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delivered
by the deceased were, however, missing the accused whilst those
delivered by the accused were landing on the deceased's
head.

According
to P.W.1 the accused eventually left the deceased and walked away
from the shop premises. The deceased then returned towards
the shop.
He, however, fell down next to the shop building. He was bleeding
profusely from the injury he had sustained on his left
breast and
eventually died on the spot.

The
evidence of P.W.1was confirmed by P.W.2, 'Mapalesa Makhakhe, who,
however, told the court that after she and 'Maphure Mokoma
had gone
into the shop, she could not see what was taking place outside the
shop. She only heard the voice of the accused saying:
"Are you
going about carrying this stick for me?" She lived in the same
village as the accused did and knew his voice
well. She had no
difficulty, therefore, in identifying his voice.

P.W.2
further told the court that after 'Maphure Mokoma had left the shop,
she eventually went out through the back door. She found
many people
gathered outside the shop where the deceased was allegedly lying
dead. She was frightened and could not personally
go nearer to see
the dead body of the deceased. In as far as it is material, the
evidence of P.W.1 and P.W.2 was corroborated by
Maphure Mokoma who
according to them had since

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passed
away.

The
evidence of Police Woman Lesia was to the effect that on 15th March,
1989 she was still on duty at Matelile police post, when
a brownish
press button knife was handed to her. She took possession of the
knife which had since been in the police custody. The
knife was by
consent of both counsels handed in from the bar as exhibit "1"
in this trial.

In his
defence, the accused told the court on oath that prior to the
incidence of 15th March, 1989, the deceased, with the assistance
of
two other men, had assaulted him and fractured bis arm. A plaster of
paris had to be put on his arm. Re had reported the assault
to the
local chief who confronted him with the deceased. The deceased,
however, threatened to kill him.

On the
day in question, 15th March, 1989, the plaster of paris had already
been removed from his arm. At about 4 O"Clock in
the afternoon,
he left his place of work at a mission and returned home. On the way
he went via the shop of 'Maneo to buy some
tobacco. On arrival at the
shop he found P.W.1, 'Maphure Mokoma, a certain Maki and the
deceased. P.W. 2 was not there. When he
saw him the deceased insulted
him for no reason and said: "Your mother's vagina you are: Have
you removed the plaster of paris?"
He asked the deceased whether
he was still brooding on

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the old
affair. The deceased then hit him a blow on the head with a stick he
was holding. Initially the accused said the stick with
which the
deceased had dealt him a blow on the head was a heavy pick handle. He
later changed and said it was "Mahlephisa"
stick. According
to the accused, as he was moving backwards and away from him, the
deceased kept on coming to him and delivering
several blows which he
(accused) warded off with his bare hands. He eventually took out of
his pocket a knife (Exh 1) with which
he delivered a blow at the
deceased. He then noticed blood stains on his knife and suspected
that he might have stabbed the deceased.
He left him and walked away
from the shop premises.

The
accused denied, therefore, the crown evidence that when he came to
the shop he was already holding an unclaspped knife in his
hand.
According to him the accused used the knife only once to repel the
unlawful attack perpetrated on him by the deceased. He
stabbed the
deceased the wound on the chest and did not know how he sustained the
deep injury on the left side of the neck.

It is
worth noting that under cross-examination, the accused told the court
that he had rehearsed his defence in this trial with
other inmates,
at the prison, who had schooled him on what to say in his evidence.
He conceded that the evidence he

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had given
before this court was not the whole truth. The accused is, therefore,
a self-confessed liar whose testimony must, in my
finding, be
approached with caution.

Considering
the evidence as a whole, there can be no doubt that the accused is
the only person who fought with the deceased on the
day the latter
sustained the injuries that brought about his unfortunate death. The
only question for the determination of the
court is, whether or not
when he inflicted the fatal injuries on the deceased, the accused did
so with the requisite subjective
intention to kill.

Although
the accused told the court that he stabbed the deceased only once,
the evidence is overwhelming that the deceased had sustained
two stab
wounds, one on the chest and another on the neck. It is clear from
the medical report - exh "A" - that the injury
that
resulted in the death of the deceased is the one on the neck. The
question is at what stage of the fight did the accused inflict
this
fatal injury.

There is
evidence, which I am inclined to believe, that after he had been
stabbed the first injury on the chest the deceased continued
fighting
the accused. If the first stab wound inflicted on the deceased was
the one on the neck which according to the medical
report severed the
main blood vessel, the deceased

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would not
have been able to continue fighting as disclosed by the-evidence.
From the fact that after he had been stabbed the first
wound the
deceased was able to continue fighting with the accused until they
reached the gate of the shop premises, it is reasonable
to infer that
he was stabbed the superficial laceration on the chest. That being
so, it must be accepted, in my findings, that
the fatal stab wound on
the neck was inflicted on the deceased whilst he and the accused were
exchanging blows next to the gate
leading out of the shop premises.

Assuming
the correctness of my finding that the fatal stab wound was inflicted
on the neck of the deceased in the course of a fight,
it is trite law
that in the circumstances one must avoid making arm chair judgment
and put oneself in the situation in which the
accused found himself.
The accused could not, in the circumstances, have been able to form
the requisite subjective intention to
kill. The question I have
posted earlier viz, whether or not when he inflicted the fatal injury
on the deceased the accused had
the requisite subjective intention to
kill must, therefore, be answered in the negative.

From the
foregoing it is clear that the view that I take is that the accused
is guilty of culpable Homicide and not murder. I accordingly
find the
accused guilty of Culpable Homicide.

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Both my
assessors agree with this finding.

SENTENCE;

In
mitigation of his sentence, the court is invited to take into
consideration that the accused is a first offender and has tendered
a
plea of guilty to culpable Homicide as a sign of remorse. His plea
has, however, not been accepted by the crown. The accused
is a
married man who has a wife and two minor children to maintain. He has
been in custody ever since his arrest in 1989. The relatives
of the
deceased will in all probabilities sue the accused for ten (10) herd
of cattle as compensation, in accordance with the Sesotho
custom.

I am
prepared to consider all these factors in mitigation of the accused
person's sentence. However, I cannot turn a blind eye to
the
seriousness of the offence with which the accused has been convicted.
He has deprived another human being of his life. This
court has on
numerous occasions warned that it will take a diem view of people who
deprive other people of their lives. This warning
seems, however, not
to be heeded. It is also significant to note that a knife was used to
kill the deceased in this case. Too many
people have lost their lives
through the

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use of
knives in this country. It is time to bring home to the accused and
people of his mind that this type of behaviour must be
brought to a
halt.

For all
these reasons, I have come to the conclusion that a sentence that
will be appropriate for the accused person is that he
should go to
gaol and serve a term of five (5) years imprisonment without an
option of a fine. I accordingly sentence him.

B.K_.
MOLAI

JUDGE.

3rd
March, 1993,

For
Crown: Mr. Ramafole

For
Defence: Mr, Mathafeng.