4
The applicant says that he did not apply for the rescission of the judgment in CIV\T\27\85 as the first respondent instituted another
action which was based on the Deed of Hypothecation under CIV\T\586\85 in which the first respondent lost. What the applicant is saying does not make sense because the default judgment in CIV\T\29\85 was obtained in February, 1985. The writ of attachment
was served on him on the 23rd February, 1985. The judgment in CIV\T\586\85 was delivered cm the 28th November, 1985, that is to say about nine months after the first respondent obtained his judgment in CIV\T\29\85. I am of the view that the two cases are distinct from each other.
Mr. Geldenhuys submitted that it is therefore clear that the applicant had knowledge of the default judgment since at least April, 1985 and that the present application was only launched in November, 1988. He submitted that there is therefore no way the application can be entertained in terms of the Rules of Court. I entirely agree with him.
In Nqoko v. Morreira 1976 L.L.R 137 at p. 139 Mofokeng, A.C.J.said:
"neither could Mr. Karim explain to this court why the applicant remained inactive even after his motor car had been attached for if he had not been aware of this action by the respondent, surely by that act of the Deputy Sheriff he must have become fully aware that judgment had been obtained against him and if he was serious enough
5
about the matter he could have immediately caused the court to be approached. But he remained inactive and at the eleventh hour, when he realises that the sale of execution is about to take place in a day's time, he applied for rescission of judgment and expects, in all honesty, the court to grant him the application and or stay of execution.
The applicant has not placed before this court sufficient evidence from which it can infer that he has a bona fide defence to the
action. It is not sufficient for the applicant to content himself with merely saying that he has a bona fide defence. In this respect
it is sufficient if he set out averments which, if established at the trial, would entitle him to the relief asked for. He is not required at this stage to deal with the merits of the case or even to produce evidence that the probabilities are actually in his favour. (Frant v. Plumbers (Pty) Ltd 1949 (2) S.A. 470 (0) (Curlewis v. Visser, 1964 (l)P.R. f.5)."
In the instant case the applicant remained inactive for about nine months before he applied for rescission of a default judgment.
The defence of the applicant as I understand it is that the action in CIV\T\29\85 ought to have been based on the Deed of Hypothecation, I am of the view that that is not a bona fide defence. The applicant says that there is a confusion on the part of the first respondent,
but this aspect of the matter is set straight by the first respondent in paragraph 12 of the answering affidavit.
6
" I most vehemently deny that the first respondent has confused these accounts. On the contrary, it is the applicant who has
attempted to confuse this entire matter. This is a very simple situation where both accounts have been placed before this Honourable
Court for resolution."
The dealings between the applicant and the first respondent are again expounded in paragraph 6 of the 1st respondent's opposing affidavit in these words:
"It is perfectly correct when the Applicant states that there were two overdraft accounts with the Applicant. The history of the trading activity with the Applicant is as follows:
Initially, the Applicant was granted a personal overdraft;
Thereafter, an overdraft was granted to the Applicant trading as "Lucky Shoes" and it was this overdraft\loan that eventually
culminated in the judgment against which the Applicant is now seeking an interdict and a rescission thereof;
7
The personal overdraft which had initially been granted was expanded and negotiation led to an arrangement for a fresh loan with the applicant, in terms of which a Deed of Hypothecation would be executed in the sum of M20,000.00 (Twenty Thousand Maloti) in order to cater for the Applicant's increased needs. In the result, two personal accounts existed and both personal accounts were relegated by the First Respondent and had nothing to do with the "Lucky Shoes Account, and handed over for collection by the Bank's Attorneys, Messrs Harley & Morris,
Your Lordships will notice that in respect of the first account, action was instituted under Civil Trial 205\1986 and this matter is still pending. In respect of the second account, being the Applicant t\a "Lucky Shoes", final judgment was granted by this Honourable Court under Civil Trial 29\85 on or about the 4th day of February 1985, a true copy of the Order of Court, is attached, hereto, marked "b"."
The explanation given by the first respondent appears to me to be satisfactory. CIV\T\29\85 was not withdrawn when CIV\T\270\85 was withdrawn for the simple reason that a default
8
judgment had already been obtained. It was for a different amount which was not covered by the Deed of Hypothecation. The mere fact that the security was to the tune of M20,000 does not necessarily mean that the business account of the applicant was included.
The General Power of Attorney dated the 28th April, 1988 is being challenged by the applicant on the grounds that:
That RICHARD JOHN LYNTON TUCKER has no authority to depone to the opposing affidavit as the General Power alleged to be authority is not a sufficient authority as it is coached in a general term;
That said MR RICHARD JOHN LYNTON TUCKER had deponed to an opposing affidavit alone while in the General Power of Attorney he can act jointly with another person appointed therein;
That the General Power of Attorney is granted to MR. RICHARD JOHN LYNTON TURKER with others by Barclays Bank International Limited of London in England not by the
9
company Barclays Bank which is registered in accordance with the Laws of Lesotho."
In Mall (Cape) (PTY) ltd. v. Merino Ko-operarie BPK, 1957
(2) S.A. 347 at pp. 351\352 Watermeyer, J. said:
"There is a considerable amount of authority for the proposition that, where a company commences proceedings by way of petition, it must appear that the person who makes the petition on behalf of the company is duly authorised by the company to do so (see for example Lurie Brothers Ltd v. Arcache, 1927 N.P.D. 139, and the other cases mentioned in Herbstein and van Winsen, Civil Practice of the Superior Courts in South Africa, at pp. 37,38). This seems to me to be a salutary rule and one which should apply also to notice of motion proceedings where the applicant is an artificial person. In such cases some evidence should be placed before the Court to show that the applicant has duly resolved to institute the proceedings and that the proceedings are instituted as its instance. Unlike the case of the individual, the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant are in my view insufficient. The best evidence that the proceedings have been properly authorised would be provided by an affidavit made by an official of the company annexing a copy for the resolution but I do not consider that that form of proof is necessary in every case. Each case must be considered on its own merits and the Court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not the unauthorised person on its behalf. Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the Court, then I consider that a minimum of evidence will be required from the applicant (cf. Parsons v. Barkly East Municipality, supra, Thelma Court Flats (Pty) Ltd. f. McSwigin, 1954 (3) S.A. 457 (c).
I proceed now to consider what the applicant has put before the Court in the present case. de Witt, the
10
secretary of the applicant Society, states in para.2 of his affidavit: "I am duly authorised to make this affidavit.: Mr,
Knight, for the applicant, submitted that, although it was not specifically so stated by de Witt, it was clear from para. 2 that it was the applicant Society which has conferred authority upon him. That inference is, I think, irresistible. Mr, Knight submitted next that the use of the word "duly" shows that the authority conferred upon de Witt had been properly conferred, i.e. that all the necessary formalities prescribed by the applicant Society's constitution had been complied with. With this submission I am also in agreement."
The learned Judge made it quite clear that the form of proof of providing an affidavit made by an official of the company annexing a copy of the resolution is not necessary in every case. In fact in the case in question the learned Judge had only an affidavit made by the official of the company who deposed that "he was duly authorised" to make the affidavit by his company. It was held that it was clear that it was the company that was litigating and not an unauthorised official.
It was held that as the respondent had offered no evidence at all to suggest that the applicant is not properly before Court, then a minimum of evidence was required from the applicant.
In the instant case we have a copy of a General Power of Attorney which was properly executed in London by the applicant. It is registered under No.20846 in the Deeds Registry, Maseru under the Deeds Registry Act 1967. It confers authority on
11
several of its officials here in Maseru Including Mr. Richard John Lynton Tucker who made the opposing affidavit in the instant case. The authority given to these officials is clearly set out in the first paragraph of the General Power of Attorney and particularly in Articles 1 and 5.
The General Power of Attorney in question legally binds the first respondent. There is no way in which it can turn around and deny its obligations arising from it. In CIV\T\586\85 a similar General Power of Attorney was used. The first respondent lost and paid the costs without any hesitation. The first respondent cannot be heard to say that in the present case it gave no authority to Mr. Tucker and the other officials named therein.
Mr. Matooane, Counsel for the applicant, referred me to the case of R.T. Morrison v. Belle, 1981 (1) L.L.R. 206 in which it was held that a document which purported to be a general power of attorney giving authority to institute proceedings on behalf of the company to one Mr. Smith was rejected. The headnote reads: "The absence of a properly worded resolution (where a company is purported to be the initiator of an action) authorising the application proceedings being refused." The learned Acting Chief Justice purported to derive the authority from Mall's case - supra. As I have stated above in Mall's case
12
there was no resolution giving authority to the official in question and there was no general power of attorney. However, the Court relied on an affidavit made by that official who said he was duly authorised to make the affidavit.
In an earlier case of Tbelma Court Flats (Pty) Ltd. v. McSwigin, 1954 (3) 357 (C) at p. Watermeyer, J. agreed that 'in cases of this nature it would be wiser for a director in his supporting affidavit to make a specific allegation that the company has resolved to institute the proceedings and has authorised him to make the affidavit on its behalf'. But despite the absence of such an allegation in either of the two supporting affidavits made by a director of a company, held that in view of the presence of certain allegations and factors in that case, it would be carrying formality too far to uphold a point in limine that ex facie the documents filed it did not appear that the application was duly authorized by the applicant company. (See Dawaon & Dobson Ltd. v. Evans & Kerns (Pty) Ltd., 1973 (4) S.A. 136).
In the instant case there is a General Power of Attorney duly executed by the first respondent whose terms are very clear. It is clear that Mr. Tucker and the other officials were duly authorised to defend this application and to make the opposing affidavit.
13
There is no substance in the submission that Mr. Tucker has deposed to an affidavit alone while in the General Power of Attorney he can only act jointly with another person named therein. In the first paragraph of the opposing affidavit Mr. Tucker says:
"I am the Maseru Branch Manager of the first respondent and I am duly authorised to make this affidavit on behalf of the first
respondent in terms of a General Power of Attorney signed at London on the 28th day of April, 1988, a true copy of which is attached
hereto, marked "A"." (My underlining).
The use of the words "in terms of a General Power of Attorney" means that he jointly acted with the people with whom he is supposed to work or to decide to institute or to defend an action against the first respondent. It was not necessary to allege that I act jointly with so and so. It is enough to say in terms of a General Power of Attorney.
The applicant has not given any evidence that Mr. Tucker did not act jointly with one or some of his colleagues mentioned in the General Power of Attorney.
14
It is quite correct that Barclays Bank PLC, Maseru is registered in accordance with the laws of Lesotho. It also quite clear from the papers before Court that it is just a branch of Barclays Bank PLC in London. It has no Board of Directors here in Maseru.
In the result the application is dismissed with costs.
J.L. KHEOLA
JUDGE
31st May, 1993.
For Applicant - Mr. Matooane
For Respondent - Mr. Geldenhuys.
CRI\T\36\91
IN THE HIGH COURT OF" LESOTHO
In the matter between:
REX
and
SEKHOAHLA NEHELO Accused
JUDGEMENT
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 hie 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 hand 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 hie yard and went to hie 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.I 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.I 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
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 cheat.
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.M.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
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 Lekhaloag wanted to see him immediately. Re 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 beer. 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
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.I 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 side. 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.
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 his 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
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 beet 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
would have exposed himself to serious danger to his 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
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 etabwound when the blows are delivered in the manner the accused described. There ought to have been lacerations on the head. This again confirms the evidence of P.W.3 that the infliction of the wound on the cheat 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.
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 hie 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
says that he had nowhere to (lee 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
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
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 walk away 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.
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.
16
I find that there are extenuating circumstances.
Sentence: Seven (7) years' imprisonment. My assessors agree.
J.L. KHEOL.A
For Crown: Mr. Ramafole
For Defence: Mr. Mathafeng.
