CRI/T/19/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

1.
'MANAHANO POKI

2.
'MAKHOTSANG POKI

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 1st day of November, 1983.

The two
accused have pleaded not guilty to a charge of murder on the
following allegations :

"In that upon or about the 15th day of October, 1982 and at or
near Maboloka in the district of Quthing the said accused did
each or
one or both unlawfully and intentionally kill 'Makhang Mokoteli."

At the
commencement of the trial, Mr. Moorosi, counsel for the accused, made
the following submissions which were accepted by Miss
Moruthane,
counsel for the crown: that the defence admitted the depositions made
by Dr. G. van Gelder, Mooi Mokoteli, 'Mabathepu
Mopeli, D/Tpr Ntsapi,
Mongamotse Khalla and Raletsoai Mosenene who were respectively P.W.1,
4, 5, 6, 7 and 8 at the Preparatory
Examination. It would not,
therefore, be necessary to call those persons as witnesses and their
depositions could be

2

admitted
in evidence at this trial. The depositions were accordingly admitted
in terms of the provisions of 3.273 of the Criminal
Procedure and
Evidence Act, 1981.

The crown
called P.W.1, 'Mamontsi Mokoteli who after some initial hesitations
told the Court that on 15th October, 1982, she brought
food for the
men who were ploughing her field at Mopeli's in the area of Maboloka.
While the men were having their meal, she heard
one 'Matemoho Santi
and another woman raising an alarm to the effect that people were
fighting at a mountain slope. Her evidence
was on this point
corroborated by the depositions of 'Mooi Mokoteli and Raletsoai
Mosenene. They all looked at the mountain slope
and noticed two women
beating up a third who was between them. They were about 300 yards
away from the fighting women, whom they
clearly identified as the
accused and the deceased. Accused 2 was facing the deceased who was
giving her back to accused 1 during
the scaffle. Raletsoai Mosenene
raised an alarm by calling at the women, and asked what they were
doing. At about that time the
deceased fell to the ground and shortly
thereafter, the two accused left her and ran away in the direction
towards the village.

P.W.1,
'Mooi, Raletsoai and others ran to the spot where the deceased had
fallen. On arrival, they found the deceased bleeding through
the
mouth and nostrils. She had a bleeding wound on the back of her head
and another below the armpit of the left side. She was
speechless.

While
P.W.1 and others were attending to the deceased, 'Mooi and Raletsoai
ran for the accused.

With the
assistance of accused 1's husband, one Koenehelo, they arrested the
two accused and escorted them back to where they had
left the
deceased. They found the deceased already dead.

3

After
they had admitted that they had assaulted the deceased with knives,
the accused took 'Mooi and Raletsoai to their respective
houses from
where they produced the knives and returned to the scene of crime.

A report
was sent to the chieftainess of the area, one 'Mabathepu Mopeli to
whom the accused were handed together with their knives.
The
Chieftainess sent a report to the police and D/Tpr Ntsapi confirmed
that following that report he proceeded to Maboloka where
he attended
the scene of crime.

On
inspecting the body of the deceased, D/Tpr Ntsapi found that it had
an open wound on the back of the head and another one on
the left
side of the chest. The two accused were handed to him together with
the knives - a brown okapi knife and a silver knife
respectively
claimed by accused 1 and accused 2. He took possession of the knives
and brought them to the police charge office
together with the
accused. He also conveyed the deceased's body to the mortuary at
Quthing.

The
deposition of Mongamotse Khalla was that, following a certain report,
he proceeded to the home of deceased who was his daughter.
He found
his daughter dead and accompanied her body to the mortuary. Both
D/Tpr Ntsapi and Mongamotse confirmed that the deceased's
body
sustained no additional injuries whilst it was being conveyed to the
mortuary.

According
to Dr. G. Van Gelder, on 18th October, 1982, he performed a post
mortem examination on the body of the deceased. It was
identified
before him by Mongamotse Khalla and another. He found a small wound

4

on the
back of the head and. another on the left side of the back. The
latter wound had penetrated into the left lung causing a
severe
bleeding. He formed the opinion that a sharp instrument had been used
to stab the deceased and death was due to the stab-wound
on the left
side of the back.

It is
perhaps significant to note that none of the crown witnesses
testified on how the fight between the accused and the deceased
had
started. The only witness who could have enlightened the Court was
'Matemoho Santi,who had testified on this point at the Preparatory

Examination stage. She was, however, not available to give evidence
at this trial and in his submissions,the defence counsel did
not
admit her deposition which was, therefore, not admitted in evidence
under the Provisions of S. 273 of the Criminal Procedure
and Evidence
Act, supra.

In an
attempt to have the deposition of

'Matemoho
Santi admitted in evidence,the crown called into the witness box
D/Tpr Ntsapi to testify that he was responsible for the
serving of
her subpoena. He had repaired to her home but could nob find
'Matemoho Santi. The information he received from her husband
was
that after the Preparatory Examination had been completed, his wife
became menially ill and disappeared. The husband suspected
that her
relatives might have taken 'Matemoho out of the country for medical
treatment. The Chieftainess of the area also confirmed
that since
January this year, she had not seen 'Matemoho in the village. As a
result of another information received from an acquaintance
of
'Matemoho, D/Tpr Ntsapi went to a certain piece in Quthing Reserve
where she was alleged to have been working. He was told that
her
brother who worked on the mines in the Republic of South Africa could
have taken 'Matemoho to Johannesburg for medical

5

treatment.
D/Tpr Ntsapi then left the matter in the hands of a certain Tpr
Thelle who was, however, not called as a witness before
this Court.

D/Tpr
Ntsapi conceded that he had not personally checked the hospital
mental health centres in this country where 'Matemoho could
be
undergoing treatment nor had he made inquiries at the mine recruiting
offices where the address of 'Matonoho's brother suspected
of having
taken her to Johannesburg for medical treatment could be traced.

I was not
convinced that a deligent search had been made to trace the
whereabouts of 'Matemoho Santi. She may well be still in the
country
and available to testify in this trial. The application to have her
deposition admitted in evidence was in the circumstances
refused.

However,
both the accused persons gave evidence on oath and told the Court
that at about 11 O'clock on the forenoon of 15th October,
1982, they
had decided to go and look for wild vegetables in the fields. It was
customary for women to carry knives when going
for wild vegetables.
Accused 1, therefore, carried the brown okapi knife while accused 2
carried the silver knife. They were, however,
not aware of the knife
each carried as they set out for the wild vegetables.

According
to accused 1's evidence which was on the whole confirmed by accused
2, while they were picking up wild vegetables in the
fields, the
deceased came to them and asked why they had been throwing stones at
her at a stockfair party on the previous night.
They

6

denied to
have thrown stones at the deceased who, however, started throwing
stones at them. They were about 8 paces away and could
have run away
but seeing that the deceased was in a fighting mood, they decided to
return the fight by picking up stones which
they also threw at her.
One of the stones thrown by the deceased hit accused 2 on the head
when she bled prefusely. They nevertheless
continued throwing stones
at the deceased till accused 2 came to her and they started
struggling physically. In the course of the
struggle, accused 2
stabbed the deceased with a knife on the body. The deceased stumbled
and fell to the ground. Accused 1 then
came from behind and also
stabbed the deceased on the back of the head. A lot of blood came out
from the deceased. They were normally
seared of blood. On seeing
blood coming out from the deceased, they, therefore, got frightened
and ran away. They ran away because
they were frightened by the sight
of blood from the deceased and not because they had heard the alarm
raised by Reletsoai.

I do not
doubt the accused when they say it is customary for women to carry
knives when going for wild vegetables. Such knives are
used to pick
up wild vegetables. Even if it were true, therefore, that when they
first left their home for the wild vegetables,
each of the accused
did not actually see the knife carried by the other, they knew that
they were carrying knives with which to
pick wild vegetables. In any
event according to the evidence of Accused 1, they were already
picking up the wild vegetables when
the deceased came to them. They
must have openly used the knives to pick up the vegetables and had,
therefore, the opportunity
to see the knife each was using. The
accused cannot, therefore, be heard to say during the fight they did
not know that each was
in possession of a knife which could be used
in the assault against the deceased. Moreover, I have seen the knives

7

themselves.
They were not of the size of a pin but ordinary long pocket knives
which could not have escaped notice of the accused
whilst they were
being brandished in the course of the scaffle with the deceased.

In
fighting the deceased, openly armed with these leathal weapons, the
accused clearly acted in common purpose. Whether it is accused
2 or
accused 1 who inflicted the fatal stab-wound does not, therefore,
really matter for, on the principle of common purpose, they
are
equally liable.

The
accused's story that they were normally scared of blood and had to
run away from the deceased on seeing blood coming out from
her is
equally unconvincing. On their own evidence the accused told the
court that when she was hit with a stone, accused 2 was
bleeding
perfusely. Like people who were scared of the sight of blood, they
did not, however, run away. In my view, the truth of
the matter seems
to be in the crown version that the accused stopped assaulting the
deceased and ran away when they heard the alarm
raised by Raletsoai.

The
accused agreed with the crown evidence that after they had run away,
they were brought back to deceased whom they found already
dead. They
took 'Mooi and Raletsoai to their respective houses from where they
procured their knives. They were subsequently handed
over to the
police and charged with the murder of the deceased. While at the
police charge office, accused 2 was referred to a
medical officer who
treated her injury. The medical officer prepared a report which was
by consent handed in as Exh "B"
in this case. According to
Exh."B" compiled by Dr. Van Gelder, accused had sustained a
"small wound and haemotoma
on the head". It was a

8

minor
injury for which she was treated as an out patient.

It is
clear from the evidence that the defence relied upon by the accused
is that of self-defence or private defence as it is sometimes
called.
In Gardener and Landsdown S.A. Law and Procedure Vo.II, 5th Edition -
p. 1412, the learned authors say

"For self-defence to operate as a complete excuse on a charge of
murder, .........the following conditions must exist : (a)
the
accused must have been unlawfully attacked and had reasonable grounds
for thinking that he was in danger of death or serious
injury, (b)
the means used in self-defence must not have been excessive in
relation to the danger apprehended, (c) the use of these
means must
have been the only method, or the last dangerous method, whereby the
accused could reasonably have thought that he could
avoid the
threatened danger."

It has
been argued that in considering the question of self-defence, the
court must endeavour to imagine itself in the position
in which the
accused were. With this I agree.

Assuming
that the accused were correct in that it was the deceased who had
first thrown stones at them there can be no doubt that
on that
evidence the deceased was unlawfully attacking the accused who had
the right to repel such attacks. However, on her own
evidence accused
1 told the Court that when she first threw stones at them, the
deceased was about 8 paces away and they had the
opportunity to flee
(if they wished to)without running the risk of being seriously hurt
by the deceased. In their own words, they
were,therefore, in no
danger of death or serious injury and should have seized the
opportu­nity to flee rather than attack
the deceased. According
to accused's evidence, deceased had admittedly been throwing stones
at them but there is no suggestion
that st the time she was
physically struggling with accused 2, the deceased was still using

9

stones,
The accused, however, drew out knives with which they stabbed the
deceased who was at the time fighting with her bare hands.
The
accused had, in my view, reverted to excessive means to repel
whatever danger they may have apprehended from the deceased.
Added to
this, is the fact that the accused were two on the deceased who
according to the post-mortem examination report was about
the same
age as accused 1.

By and
large, it seems to me that there can be no doubt, in the present
case, that the accused have exceeded the bounds of self-defence
and
that defence cannot, therefore, be available to them.

Now, the
head and chest are vulnerable parts of the body of a human being. By
stabbing the deceased on these parts of her body,
the accused
realised that their acts were likely to result in death. They,
however, acted reckless of whether death occurred or
not. That
granted, it must be inferred that the accused had the legal intention
to kill the deceased. That being so, I have no
alternative but to
come to the conclusion that the accused have committed the offence
against which they stand charged and accordingly
convicted them of
murder as charged.

Both my
assessors feel the intention to kill has not been established by the
evidence and do not, therefore, agree with my findings.

B.K.
MOLAI

JUDGE

1st
November, 1983.

For Crown
. Miss Moruthane,

For
Defence . Mr. Moorosi.

EXTENUATING
CIRCUMSTANCES

In the
absence of any evidence to the

contrary,
the accused's version that it was the deceased who had started the
unlawful attack on them remains unchallenged, I have
held that the
accused were, in the circumstances, entitled to repel the unlawful
attack but in the process exceeded the bounds
of self-defence which
could not, therefore, avail them.

Whilst I
took the view that for reasons already stated in my judgment, the
accused could not be exculpated on the basis of self-defence,
I,
however, believe that the fact that the deceased unlawfully attacked
the accused contributed to the manner in which they reacted.
That, in
my view, tends to reduce the moral blame worthiness of accused's
conduct and must therefore, be taken into account for
purposes of
extenuating circumstances.

In the
premises, I come to the conclusion that extenuating circumstances do
exist and the correct verdict should be that of guilty
of murder with
extenuating circumstances.

My
assessors agree.

SENTENCE
.

Six (6)
years imprisonment for each of the accused.

B.K.
MOLAI

JUDGE

2nd
November, 1983.