CRI/T/35/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX
PLAINTIFF

and

MOTLATSI
SANKU LEPEKOLA DEFENDANT

JUDGMENT

Delivered
by the Honourable Acting Justice Mrs. J.K. Guni On the 5th day of
September, 1995

The
accused person, MOTLATSI SANKU LEPEKOLA, is charged with the crime of
murder. The particulars of the alleged crime are that
on or about
25/12/89 at or near Auplasi HA RATAU, in the district of MASERU, the
said accused did unlawfully and intentionally
kill LAGDEN NKAKALA.

The post
mortem report indicated that the cause, of death of LAGDEN NKAKALA,
was due to internal and external bleeding. The report
went on to show
(6) six stab wounds at the back, three on each side. The evidence of
Dr. Raymond Makoi-Shara of Queen Elizabeth
II Hospital confirmed the
understanding that there were three stab wounds on each side of the
spinal column. There were three more
stab wounds infront. Two deep
wounds on left infraclaricule region going deep into the lung tissue.
There was yet another wound
between the 6th and 7th rib.

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This
medical report is supported in material respects by the evidence of
other witnesses such as the policeman who attended the
scene of the
crime. Detective trooper Lichaba Mokhali told this court that on
arrival at the scene he observed pools of blood between
4 to 5 paces
approximately from where the body of the deceased was lying. He saw
numerous wounds around the neck of the deceased.
He claimed he could
not count them. The impression he got from his bservation of the
wounds around the neck, was that an attempt
was made to cut off the
deceased's neck. He mentioned a wound at the back of she deceased's
head. This policeman observed no less
than (11) eleven wounds on the
body of the deceased. All the wounds are concentrated on the upper
part of the body - mainly the
chest region. The accused person's
father Mr. Nthako Lepekola indicated that he observed eight wounds in
all, on the body of the
deceased. According to him they were all at
the chest area and at the back behind the shoulder. Like the
policeman Lichaba Mokhali,
he also saw a wound at the back of the
head of the deceased.

The Chief
of Ha Ratau Morena Bofihla Theko was present when the policeman.
Detective trooper Lichaba Mokhali, stripped the body
of the deceased
at the time he inspected it. The Chief testified to the effect that
he observed between 13 and 15 stab wounds on
the body of the
deceased. The accused person when he made a report to his father,
according to his father's testimony, he mentioned
he inflicted wounds
although he did not specify the number. I am satisfied by all this

3

evidence
that this accused person inflicted upon the deceased those numerous
stab wounds.

No
attempt is made on behalf of the accused person to deny that he
caused the injuries which caused the death of the deceased. The

accused person after the charge was put to him, in answer to the
allegation put to him he admitted that he killed the deceased,
but
indicated that he had a reason or masons for doing so. The plea of
not guilty was accordingly entered on his behalf. During
the
cross-examination of Crown witnesses it emerged that the accused
person's reason for killing the deceased was self defence
now
commonly known as private defence.

The
accused person is therefore pleading private defence. For him to
succeed in his defence he must establish the following essentials:

1. There
   must have been an unlawful attack or threatened attack, which gave
   him reasonable grounds for believing that he was in physical
   danger.

   
   

2. The
   means of defence must have been commensurate with the danger and
   dangerous means of defence must not have been adopted when
   the
   threatened injury could have been avoided in some other reasonable
   way. Ntsomi v Minister of Law and order 1990 1 SA 512.
   c

   
   

It
appears that the deceased and the accused person were the only people
present at the scene of the crime when the alleged fight
took place
between them. The accused person is the only one left to tell the
story about what happened. It

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was
argued strenuously, on the accused persons's behalf by Mr. Phoofolo,
that the court is not entitled to reject the accused persons's
story
because he is the only eye witness of the alleged fight between him
and the deceased.

The story
as told by this accused person is to the effect that he was actually
attacked by the deceased with a sword. Later on as
the trial
progressed, and he was now under cross-examination, the accused
person claimed that he was threatened with imminent attack
with an
iron bar. He later on changed the weapon with which he was attacked
by the deceased into "Kepi", which is a tool
no more than
half a metre in length. It is ordinarily used by herbalist for
digging out the herbs. The accused person's father
went along with
his son on this point; That the deceased was a herbalist and used to
carry along on his person this "Kepi".
The accused person's
defence is incoherent. It gives me the impression Chat it was being
built as the crown case unfolded and at
times contradicting or at
variance with what has been claimed previously by this accused
person. For example it was being alleged
by the accused person that
he pulled out a knife from his pocket, unbugled it and stabbed the
deceased who had already commenced
a murderous attack using a sword
upon the accused person. The variation of this defence is that the
accused claimed that the deceased
was still brandishing an iron bar,
threatening to launch an attack upon the accused person, at the time
the accused person then
took out of his pocket that knife, unbugled
it and stabbed the deceased? Where did he stab?

5

He does
not say. How many times, did he stab? He does not know.

Was the
accused person attacked or merely threatened with imminent attack
which gave him reasonable believe that his life was in
danger or his
person was likely to suffer grievous bodily harm? An attempt was made
to seek reliance on the history of conflicts
between the deceased and
the accused person. It appeared that on 1/12/89 the deceased and the
accused person had a fight in which
the accused person claimed to
have sustained an injury on his head. The accused claimed that the
deceased assaulted him with a
sword and slashed him on the top of his
head. The scar which was still vissible was indicated before the
court. According to his
father, the accused person sustained a bruise
around his eye which got swollen as a result. Both the accused person
and bis father
agreed that the accused person received no medical
attention for that injury. 'Mabotle, who resides in the same village
never saw
any injury on the accused person during the relevant period
that is between 1/12/79 to 25/12/89. This was an attempt to claim
that
he sustained a very serious injury. It was strenously canvassed
on behalf of the accused person that his injury was of common
knowledge
amongst the villagers. That he wore bandages which must
have attracted attention of other people. The accused person may have
had
a fight on 1/12/89 with the deceased; an attempt was being made
on behalf of the accused to exaggerate the injury or injuries
sustained
in that fight. The accused person's father, Mr. Nthako

6

Lepekola
is in good terms with his son, the accused person. They live
together. The accused person has parted ways with his wife
and
children. But he still lives with his father. This should indicate
the extent and depth of the smoothness of their relationship.
It is
the accused person who assisted the registrar of the High Court to
locate and bring this crown witness to court. When Mr.
Nthako
Lepekola told the court that his son may have numerous scars all over
his body as his defence Counsel put it, but none of
them was caused
on 25/12/89. Mr. Nthako Lepekola told the court that his son, the
accused person woke him up on the night of 25/12/89
and informed him
that he had had a fight with the deceased. Re put on the light.
Although he did not remove his clothes and inspected
his body he was
certain he did not see any injuries on him. When the accused person
reported to his father that he stabbed the
deceased with a knife and
that he doubted if the victim will survive the father asked the son
to show him the knife he claimed
he used. Mr. Nthako Lepekola told
the court that he did not touch the knife but he asked the son to
open it as it was still clasped.
The accused person opened the knife
and showed it to his father as he had requested. While performing
this action the accused person
was being watched by his father. The
father told the court that he saw the hands of his son. There were no
injuries on those hands
or forearms. It was argued on behalf of the
accused person that he feared for his life because when the deceased
threatened to
assault him or actually delivering the blow on the
accused person, he recalled the previous assault of the

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1/12/89
and the injury he sustained then. The threat of assault and the
actual assault coupled with that memory of previous assault
gave the
accused person fear that his life was in danger.

There is
no evidence that the accused person was ever assaulted with a sword
by the deceased as claimed by the accused person. According
to the
accused person's father to whom the accused person made a report of
that assault, the stick was used not the sword. The
wound on the top
of the head was caused on the previous occasion by the accused
person's fall on top of the three legged pot which
lost that leg as a
result of that fall upon it by the accused person.

The
allegation that the accused person ever suffered a serious injury at
the hands of the deceased using a sword was found to be
false. The
threat of assault and or the actual assault upon the accused person
by the deceased on 25/12/89 is an allegation made
by the accused
person. Initially when the crown witnesses were being cross-examined
on behalf of the accused person by his counsel,
it was being put to
them that the deceased carried around with him a sword. That on
1/12/89 the deceased assaulted the accused
using that sword. The
father of the accused although be testified to the effect that he
knew the deceased to be a herbalist and
he saw him go around in
possession of "Kepi" that is used by herbalists to dig out
herbs, he had not seen the deceased
use it to assault anybody. On
1/12/89 the accused person when he reported to

8

his
father about the fight that took place between him and deceased, he
reported to his father that the deceased hit him with a
stick. The
father has no reason to change the name or nature of the weapon used
on his son. If at all there was a tint of favouritism
in his
evidence, Mr. Nthako Lepekola, favoured his son. On the 25/12/89 and
on any other day, the Chief of the village "Morena
Bofihla
Theko" saw the deceased holding a thin stick. The issue of a
sword, that was so canvassed as a weapon used by the
deceased upon
the accused person was a new phenomenon to the Chief. None of the
witnesses except the accused and his father ever
saw a sword or
"Kepi" in the possession of the deceased. I am convinced
that the defence canvassed that a sword is the
weapon used by the
deceased merely to find justification for the accused person to
inflict more than 11 wounds on the deceased.

When the
accused person came on the witness stand himself, he changed the
weapon from a sword to an iron bar. The size of the iron
bar as
indicated by the accused person was about half a metre. When asked to
state the colour of the iron bar, the accused person
indicated that
it was dark brown. How he saw that colour at night was going to be a
problem. The accused person got around that
problem by saying he did
not actually see the iron bar. He heard the sound of the iron bar as
the deceased dragged it along the
ground; It was not going to be easy
for a person to drag the iron bar on the ground unless he was bending
or he was a dwarf, which
features were not even alleged by the
accused person. The accused

9

person
realised that he has to lengthen this iron bar. He then increased its
length to about a metre; that was doubling its length.

When
asked how the deceased assaulted him with the iron bar, the accused
person told the court that the deceased delivered chopping
and,
thrusting blows upon his person. None of these blows caused a dent or
scratch on the accused person's body according to the
evidence of his
father and the policeman who arrested him. Even if his body was made
of steel, there should have been some signs,
such as dents or
scratches to show that he was involved in some sort of scuffle.
Particularly if the assault gave the accused person
reasonable
believe that his life was in danger. The chops, the thrusts and or
stabs on the accused persons's body caused not even
a bruise or
scratch. The law does not require that a person should suffer an
injury first before he could defend himself. S.V.
Jackson 1963 (2) SA
626 (A).

The scar
indicated at the top of the accused person's head is long
approximately 4 - 6 centimetres. It should have been fresh and

bleeding at the time he woke up his father and made the report about
having stabbed the deceased to the extent that he even expressed
his
doubt if the deceased would survive. The scar at the hand also should
have been fresh and bleeding. The father saw no blood
nor injuries.
Although the accused person claims that his father is lying he does
not

10

suggest
any reason why his father would falsely implicate him by denying that
he sustained any injuries in that fight when be actually
did.

The
policeman testified to the effect that on the ground where the body
of the deceased was lying there were signs that there were
two people
involved in some struggle. The accused person claimed he was
struggling to get away from the deceased who was assaulting
him with
a sword. The accused person claimed that the deceased held him
infront close to him face to face. It was during this time
that the
accused person had an opportunity to stab the deceased these numerous
wounds at the back and front. The demonstration
carried out before
this court by the accused person and his defence counsel the,
accussed and the deceased had to be very very
close to enable the
accused person to have that long reach to stab the deceased at the
back of his shoulder from the front.

The
accused person was asked why did he not run away at the time the
deceased was still brandishing the sword, he said, the deceased
was
too close for his comfort and he feared to expose his back to the
danger of sustaining serious injury. The law does not require
the man
to expose his back to danger. He apparently stood his ground. R.V.
Mathlan 1958 1 SA 350. According to the accused person
he stabbed the
deceased eleven or so wounds as he defended himself.

At the
same breath the accused person claimed to have

11

been
detained by force by the deceased who held him close to his body as
he, deceased, delivered those cutting, chopping, and thrusting
blows
at the accused person with a sword. The fact that this accused person
sustained no injury at all, while all these was happening
is nothing
shot of a miracle. This performance described here by the accused
person is incredible. It was while the accused person
was struggling
to free himself from the deceased's grip that his shirt or jacket got
torn at the shoulder area. This was said at
the end of the defence
case. Initially the accused person claimed he did not run away
because he feared that the deceased who was
brandishing a sword was
too close, for him to get a chance, safely to run away. This
variation in the defence story leaves no doubt
in my mind that the
whole story is false. The proximity of the two persons as they fought
according to the demonstration the accused
person made before this
court, there was no way the deceased could have delivered any blow
upon the accused person with a sword.
It was at that stage that the
accused person produced another variation as regards the fashion in
which blows were delivered by
deceased to the accused person. He
claimed the weapon was now "Kepi" no longer a sword; and
the blows delivered were
now in a thrusting fashion. The length of
the weapon had also to be fashioned in such a way that the accused
person could with
great difficulty stab with it. According to the
story of the defence this weapons, sword, iron bar or\ and "Kepi"
is
one and the same thing. It is not three different weapons or tools
as commonly known. There is no evidence that this

12

weapon
apart from becoming three (3) different things, it also had
properties of an elastic. It became long when the accused person

heard it knocking on the ground as the deceased dragged it along. It
became short when the deceased who was holding the accused
close to
his chest stabbed or thrust it upon accused person. These must be
lies,

The
accused person as he demonstrated before this court he deceased held
him quite close almost chest to chest and face to face.
In this way
the accused person was able according to his demonstration to stab
the deceased six (6) wounds at the back. What was
the deceased doing
to the accused person at this time, the accused person is the only
one who knows. He claimed that the deceased
held him making it
impossible for him to get away and at the same time beating and
thrusting upon his person with a sword. In those
circumstances as
explained by this accused person it is definitely false that the
deceased could hold the accused person that close
while the accused
is stabbing him, instead of pushing the accused away from him. The
time the accused used to get the knife out
of his pocket, to open it
as he demonstrated, that it does not open automatically, to get it
ready to stab, was sufficient time
to run away from the threatened or
commenced attacked.

As
evidence has shown, there was no sword, no iron bar, and no "Kepi"
found anywhere near the scene of the crime or on
the person of the
deceased. There was no evidence of anyone

13

taking it
away either. These weapons are of the accused persons's fiction of
the mind here at the court. The deceased had no weapon
unless the
defence could satisfy this court that apart from stretching and
lengthening, this weapon did not only take different
shapes and
legnths as circumstances suited accused person's cause, but that it
also evaporated away.

The
doubt, regarding the unlikehood of the survival of the victim
expressed to the accused person's father by this very same accused

person who must have been well aware of his actions and their likely
consequences, was founded; especially considering the number,
nature
and location on the body of the deceased of those stab wounds
inflicted by this accused person. The intention to kill a
person is
seldom expressed. Almost every time it is gathered from the
surrounding circumstances of the particular case. "In
order to
arrive at a conclusion as to the state of Che mind it must be gauged
to some extent by surrounding factors and circumstances".
This
was said by the honourable Justice Evans in Rex v Thabiso Lejoetsa
1972 1/7 at page 180 A. In our present case this accused
person does
not deny inflicting the numerous stab wounds on the body of the
deceased. The concentration of those stab wounds at
the upper part of
the deceased's body - their nature and the number, leave no doubt in
my mind whatsoever, that the perpetrator
intended to put a definite
end to the life of the person on whose body those wounds were being
inflicted.

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Extinuating
circumstances have been found to exist.

SENTENCE

You have
been found guilty of the most serious crime. Taking away another
man's life is indeed a very serious matter, particularly
in your case
when the excuses you claimed could not be found to exist. You were
kind of workmates with the deceased as you told
this court that you
were both hired by Mr. Makoni to play drums as the accompaniment
while he played the accordian. In other words
you were a team of
amateaur musicians. You claimed that you bore no personal grudges
against the deceased even though you may have
had fights previously
with this deceased. It was being alleged by yourself that the
deceased claimed to be a better player of drums
than you. You were
not jealous, because as far as you were concerned there has been no
contest to determine which one plays best.
The period of Christmas is
the time of giving. It is the time to rejoice. You were all doing
just that - merry making. You went
partying and drinking at
'Mabotle's place, later on that evening, the partying and drinking
went on at Mapolosi's place. Here you
were intertaining the people as
you were engaged in the playing of the accordian and the drums. The
consumption of alcohol may

15

have
played a little part in your bahaviour. You had been drinking though
you claimed you were not as drunk as the deceased. According
to you,
the deceased was more drunk than you. Your state of sobriety was
confirmed by your father when he commented on your behaviour,

attitude and demeanour, at the time you reported to him the events of
that night regarding your fight with the deceased. He told
this court
that you spoke very well and coherently. At the time you reported to
your father what you have done, you even expressed
an opinion based
on your observations, that you doubted if the victim will survive.
You were not wrong in that judgment. The brutality
involved by
inflicting so many stab wounds, particularly at the area you chose to
concentrate all those stab wounds, is an aggravation.
By taking away
another man's life you offended against whole humanity and in
particular against the Basotho as a nation. That is
why you are being
sued by the crown representing the people. Your debt to the Basotho
people is an enormous one. You must be expecting
to pay quite a high
price. It is a general expectation of which the court is entitled to
take a judicial notice. You may have heard
some irresponsible
expressions made by some people who want to take a chance to break
the law, that they would rather go to jail
than remain in control of
their faculties and exercise some restraint. 1 am trying to explain
to you that when a person breaks
the law, there is some reflection in
his/her mind that there is a price to pay for that unlawful act, and
deliberately prefers
to take the responsibility for the consequences.
In this case you must have expected to pay

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and pay
very dearly.

You are
sentenced to 13 years imprisonment. My brother assessors concur.

K.J. GUNI

ACTING
JUDGE

For the
Accused : Mr. Phoofolo

For the
Crown : Mr. Mofelehetsi