CRI/T/43/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEKHETHO
MAHASE

V

REX

JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 1st day of
November, 1995.

The
accused is charged with murder:

In that upon or about the 28th of August, 1992 and at or near
Ha-Leteketa in the district of MAFETENG, the said accused unlawfully

and intentionally killed MORAMANG SHAMO MOLEFINYANE.

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Accused
pleaded not guilty.

At the
outset, I must state that the medical evidence and the fact that
deceased was stabbed by the accused in the chest region
is not
disputed. It was this wound that injured the right ventricle of the
heart of the deceased causing the bleeding that led
to deceased's
death.

With the
actus reus admitted, there are two questions that have to be answered
namely whether accused had the requisite specific
intention to kill
or whether even if the accused did, the killing was justifiable.

The Crown
which bore the onus of proof, called four witnesses.

P.W.I
Trooper Tseloa is the policeman who collected the deceased's body and
gave the accused a charge of murder. He was given the
deceased's
clothes and the accused's knife. Under cross examination P.W.I denied
deceased's stick was also given to him.

The next
witness was P.W.2 Pitso Ntjatje, who states they went to Makamohelo's
place to drink Basotho beer. They found accused already
drinking.
According to him

deceased
around 8.30 p.m. stood up in order to go outside. On the way out he
complained that deceased had tripped him. Accused asked
for

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forgiveness. After this, drinking continued. Deceased went out again,
on his way back deceased complained that accused had kicked
him on
the knees. Accused asked for forgiveness. For no apparent reason,
accused then insulted all the people in the room and said
"Nyoa
meng ling"—translated, this means "your mothers'
vaginas". This is one of the most offensive and
abusive language
that can be uttered in me Basotho language. Accused removed his
overcoat and closed the door after the deceased
had gone out. P.W.2
and others had to struggle with accused in order to get out.

P.W.2
says Nkalimeng P.W.3 told him that deceased was calling him because
that person had stabbed him. He took deceased into the
house laid him
on the blanket with the help of others. Not long thereafter deceased
died. P.W.2 denied deceased did anything to
accused, and also stated
that deceased did not have a stick.

Under
cross-examination he stated that deceased and accused were
acquaintances. P.W.2 denied that there was any dancing in the house.

He denied deceased ever said aloud that accused was after him or that
he poked accused with a stick. P.W.2 also said accused never
said
deceased had spilled his beer or words to that effect.

P.W.2
further denied that accused threw his overcoat on the deceased and

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stabbed
deceased. P.W.2 was very confused about whether there was a light or
not.

Sometimes
he said there was light and that it was put out by the accused.

P.W.3
Nkalimeng says accused was the first to join the group that was
drinking Basotho beer. Later deceased and P.W.2 came. While
they were
drinking, deceased said to the accused

"Sir, why are you kicking me?"

The
witness was three paces from them. Makamohelo (the hostess)
intervened and accused apologised. Deceased went out and on his

return he heard accused complaining that deceased had kicked him. She
did not see what had in fact happened. She says she only
heard
deceased say -

"Why are you kicking me, what do you want from me?"

Accused
took off his coat and said:

"Your mothers' vaginas, all of you."

P.W.3 ran
out of the house. There had been no dancing at all. She had not seen
deceased spill accused's beer. At the time she ran
away, the light
was still on.

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While
P.W.3 was outside the gate of Makamohelo's site deceased came. P.W.3
advised him to go home as he was being attacked. Deceased
said it was
no use that man had finished him. Deceased asked P.W.3 to call P.W.2
for him. This she did, then went to sleep.

In
cross-examination P.W.3 says at the time deceased complained of
having been kicked, the second time, deceased was sitting on
the
bench while accused was sitting on an aloe stump. From the position
they were sitting, accused could not have kicked deceased
at that
stage. P.W.3 says she does not know what had happened before that.
P.W.3 says there was a plain radio in the house,not
a cassette
player. There had been no dancing.

The
witness that followed was P.W.4 Malipolelo Tlali. She states that
while they were drinking at Makamohelo's, deceased complained
that
accused had kicked him. She did not see the kicking. Makamohelo
reprimanded accused and he apologised. Drinking continued.
Deceased
went out and came back. After he had sat down for some time, deceased
complained that accused had kicked him. Deceased
had been sitting for
about 10 minutes when he said this. The witness suggested she had no
idea of time but her time estimates were
correct. Accused reacted by
insulting all people in the house by saying:

"Your mothers' vaginas you are showing no respect for me all of

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you."

Accused
stood up and she ran away. The time could have been 7.45 p.m. There
was no music in the house. Deceased's beer had never
been spilled and
replaced nor was such an offer made. Deceased was not carrying a
stick. Deceased never threatened anybody with
a stick.

Under
cross-examination, it emerged that deceased was her guest. She denied
that she had told accused that accused belonged to the
Batsoeneng
clan to which the deceased belongs and that she revealed this fact
when deceased had spilled accused's beer. She denied
there was
dancing. P.W.4 said deceased was sitting on an aloe stool and accused
was sitting on the bench.

The Crown
closed its case.

Accused
gave evidence in his own defence. He admitted that he had been
drinking at Makamohelo's where he was joined by deceased
and P.W.2
Pitso Ntjatje. There was music and dancing. While there was dancing,
deceased accidentally tripped against his leg, but
accused him of
having deliberately tripped him. When Makamohelo intervened, he
apologised. Deceased had spilled his beer, but Malipolelo
P.W.4 said
he should not be too angry because deceased was her guest. P.W.4 said
deceased belonged to the same Batsoeneng clan
as accused,

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therefore
Malipolelo P.W.4 would replace the beer. As promised, P.W.4 bought

the
accused beer.

Deceased,
who was dancing, came towards him again and accused warned him that
he would spill his beer. Deceased replied that accused
was after him.
Deceased was carrying an olive stick. Deceased said he would hit
accused with a stick while accused was sitting
down. Accused said
deceased could not do so. Deceased continued dancing. When deceased
approached accused again, he poked accused
with a slick. Accused
quickly reacted by removing his overcoat and throwing it on he
accused's face and stabbing him with a knife
in the chest region.
Accused says he did this because deceased's eyes exhibited
aggression. When he looked up, he realised everyone
had left the
house, he was only left with P.W.2 Pitso.

When
accused got out of the house, Makamohelo (the hostess) told him to go
home as he had been fighting. Accused went home.

The
following day, the Chief's messengers came for him. He handed over
the knife he had used to the Chief on finding deceased was
dead.
Accused says he had no intention to kill deceased. Accused said he
had taken 10 to 20 scales of beer before he came to Makamohelo's

house. A scale is half a litre. Accused says he needs 30 scales in
order to get drunk. He took five more scales at Makamohelo's.

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Under
cross-examination accused said he did not know deceased at all. As he
was drunk, he could not run away. Deceased was also
drunk. People who
deny deceased had a stick do so because of the misfortune that has
occurred. Accused says although the police
asked him a few questions,
he never told them the deceased had a stick or had attacked him with
a stick. It did not occur to him
to tell them because he was not
asked a specific question about the deceased's stick. He saw the
deceased's stick taken by the
police along with deceased's body.

Accused
called Warrant Officer Khoele as his witness. Warrant Officer Khoele
denied that they took deceased's body along with a
stick.

When one
assesses the evidence as a whole, it seems P.W.2 did not see a lot
and his memory was bad. He was inclined at places to
put the accused
in the worst possible light. He does not remember how the light was
put out or whether it was put out at all. Yet
he blames this on
accused and contradicts himself badly. What is clear and which is
corroborated by P.W.3 and P.W.4 is that accused
suddenly became
aggressive and used abusive language against all the occupants of the
house.

P.W.3
Nkalimeng was the most cogent and impressive of all Crown witnesses.
She stated quite honestly that she does not know when
and how
deceased had been kicked by accused. At the time deceased made this
complaint, he was already seated away from the accused.
P.W.4
corroborates P.W.3 and P.W.2 on

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how the
fight started. P.W.4 was not generally truthful but on how the fight
started, she is corroborated by other witnesses and
by circumstantial
evidence.

Whether
deceased spilled accused's beer and P.W.4 bought a replacement for
it, is not of material importance in this case. Similarly,
whether
there was dancing or not cannot affect the outcome of this case in a
significant way except on the question of credibility
of Crown
witnesses in a general way. Everything in such cases depends on the
circumstances of each case.

It is
common cause that the initial cause of friction between accused and
deceased is the fact that deceased tripped on the leg
of accused.
Whether this was deliberate or not was not initially important.
Deceased put his complaint in terms that implied that
he regarded
this as a deliberate kick. Accused denied this, but after some
exchange of words it was accepted by all that accused
should
apologise. This was done and deceased accepted the apology.

None of
the Crown witnesses saw the second tripping or kicking of deceased by
the accused when deceased re-entered the house and
sat down after
having gone out. According to Crown witnesses, deceased's reaction to
this accusation was to insult everybody in
the house causing
pandemonium and the sudden exit of the people inside the house. None
of the witnesses saw the fight as there
was a scramble to get out of
the house. P.W.2 remembers that accused removed his coat

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but even
in this he is not clear. P.W.2 and P.W.3 got it from the deceased
that

accused
had stabbed him.

The
accused's evidence, except for the fact that he says there was
dancing, is in many ways consistent with that of the Crown witnesses

as to the tripping that resulted in a misunderstanding. It is on how
the fight began that his evidence is in direct conflict with
that of
Crown witnesses. According to accused, while deceased was dancing he
came too near accused's feet that accused had to alert
deceased to
the possibility that deceased might again spill accused's beer.
According to accused, deceased did not like this and
he said accused
was after him. Deceased threatened accused with the stick that
deceased had in his possession. Deceased danced
away and when he came
near accused again as he was dancing, deceased poked accused with a
stick. Accused reacted quickly, removed
his overcoat and threw it
over deceased's face and stabbed deceased with a knife in the chest
region. When accused looked around,
he found that he was only left in
the house with P.W.2, everyone had left the room.

I reject
accused's story that deceased used a stick on him or that the
deceased had a stick. I accept the evidence of Crown witnesses
that
accused suddenly insulted all occupants of the house causing them to
fear for their safety with the result that they vacated
the house as
fast as their feet could carry them.

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The crisp
question for determination is whether in the circumstances of the
case accused had the mens rea that will justify a conviction
of
murder.

There is
the question of consumption of a substantial amount of Basotho beer
and whether this in any way affected his capacity to
form a specific
intention to kill.

The Crown
invited me to consider whether accused was so drunk that he could be
regarded as temporarily insane through intoxication.

I will
not deal with it. It was adequately dealt with in Matsaba v. Rex C of
A (CRI) No. 5 of 1990 (unreported). In our law, although
such a
person was "by reason of intoxication insane" acquitted, he
is then sent for an indefinite detention at His Majesty's
pleasure
like all insane people. In reality this is sometimes a calamity worse
than being found criminally liable and being convicted
and sentenced
to a definite term of imprisonment.

G.H.
Gordon's Criminal Law, 2nd Edition, 12 - 01, dealing with the way
intoxication is viewed in Scotland, states:-

The law regarding intoxication as a defence to a criminal charge is
an unsatisfactory compromise among a number of attitudes and

principles. On the one hand it is felt drinking should never be taken
into account in ascribing responsibility for a crime, because
it is a
voluntary condition and is, moreover, a reprehensible one. As Hume
says, 'one cannot well lay claim to favour, on ground
of that which
in itself shews a disregard for

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order and decency'. On the one hand a man who gets drunk and commits
a crime sometimes arouses sympathy rather than indignation."

P.W.3
says that the deceased was the target of the accused's attack merely
because he had complained of having been kicked. When
accused
initiated the attack on the deceased, he did it in such away that
even the other people felt unsafe.

In
rejecting the accused's story I sum fortified by the; fact that he
himself admits his mind was a bit befuddled by drink, consequently
he
cannot deny everything that the Crown witnesses said.

This (as
I have already shown) is not a case in which The Criminal Liability
of Intoxicated Persons Proclamation No.60 of 1938 applies.
In Germs
of its Section 2(2)(b). it is only relevant where:

"the person charged was by reason of intoxication insane
temporarily or otherwise at the time of such act or omission."

Intoxication
should never be taken out of the social context and the need for
deterrence and to discourage antisocial behaviour
that violates the
rights of other people. For this reason, I believe academics have
interpreted the Appellate Division case of
S v. Chretien 1981(1) SA
1097 out of its factual context. The Court was not dealing with,

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"Someone who is dead drunk and is not conscious of what he is
doing (who) is not liable because a muscular movement which
is done
in this condition is not a criminal act."

The
rubric of the case docs not fully bring out the ratio decidendi of
that case. The Appellate Division had not accepted the accused
was
dead drunk. Therefore the Appellate Division confirmed the conviction
of culpable homicide in a case where an intoxicated driver
drove into
a crowd killing one person and injuring five others. The decision of
the Durban and Coastal Division was therefore confirmed
by the
Appellate Division and is reported as R v. Chretien 1979(4) SA 871.
In that case Friedman J said at page 878 AB:

"There is a common misconception that the presence of alcohol in
the sense that the accused person being in an alcoholic state,
is
generally and wrongly taken into account by the court as a mitigating
factor. That is a belief that must be dispelled. In the
present, case
the fact that the accused had clearly imbibed far too much alcohol
was a factor we took into account in weighing
whether or not the
accused bad an intention to kill, and the fact that be was in an
inebriated state was a factor that influenced
us in concluding that
the accused should be convicted not of murder but of a lesser crime
of culpable homicide."

Returning
to the facts of this case, it seems to me the accused had taken too
much liquor. Basotho home brew beer differs in potency.
Accused was
not as balanced as he should have been. Like all people who have
taken too much alcohol, he must have been inclined
to take offence
too easily and consequently got provoked by any exchange of words
with the deceased that might have been legitimate.
Whether accused
had or had not tripped or kicked deceased, accused did not like the

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fact that
deceased had said accused was doing something wrong. Accused's temper

flared
and displayed aggression not only against deceased but against all
the people in the house, whom he insulted collectively.
I do not have
to be in the accused's mind to realise that at the root of his
behaviour was his inebriation. In R v. Bourke 1916
TPD 303 at page
305 Wessels J said:

"It is a well known fact that there are various degrees of
drunkenness. A man may drink a small amount of liquor, the effect
of
which may be upon him to excite him and make him to act differently
to the way he would act if he were absolutely sober."

In this
case, the accused had taken between fifteen and twenty live scales of
beer. That is quite a lot, although accused says he
could still take
five more before he became drunk.

In order
to determine that the accused is guilty of murder I must be satisfied
that he had the specific intention to kill. In Rex
v Innes Grant
1949(1) SA 753 at page 765 Centivres JA said:

"What authorities describe as voluntary drunkenness may be
relied upon by an accused to show that in committing the act charged

against him he did not have the specific intent, which is a necessary
element in the crime charged against him."

In S v.
Sigwahla 1967(4) SA 566 at page 570 BE Holmes JA, dealing with the
specific intention required for the Court to convict
the accused of
murder, said:

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"The fact that the accused ought reasonably to have foreseen is
not sufficient......Subjective foresight like any other factual

issue, may be proved by inference..... It cannot be so drawn if there
is a reasonable possibility that the accused did not foresee,
even if
he ought reasonably to have done so, and even if he probably did so."

Since I
have to judge everything concerning the accused's intention,
focussing on the accused's particular mind not just that of
a
reasonable man, I cannot see how I can find it as a fact that the
accused had the specific intention to kill deceased. At the
very
worst, I am obliged to give him the benefit of doubt on this question
of requisite mens rea to kill, that must be present
in a case of
murder.

Accused
is therefore guilty of culpable homicide, but not guilty of murder.
Stand up accused. You are found guilty of culpable homicide.

W.C.M.
MAQUTU

JUDGE