CRI/T/65/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

REX

v

MASOLE
RAKAIBE

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 14th day of
December, 1995

The
Accused has pleaded not guilty to the charge of the alleged murder of
REFUOE HESHEPE TOMI (deceased) who died on the 22nd March
1990.

All the
three versions as to how the deceased met his death point to that he
died as a result of a severe knife wound on the left
side of his
stomach. The wound was sustained on the 21st March 1990. The
deposition of the doctor and postmortem report were admitted
by
consent and made part of the record of proceedings in terms of the
Criminal Procedure and Evidence Act 1981. These revealed
"internal
haemorrhage due to punctured spleen, stab wound (L) lower abdomen,
with omentum majus coming out. Abdomen

2

full of
blood. Source of bleeding spleen puncture." There is no doubt
that the wound was seen by many people including P.W.1.
P.W.1 says
she even saw flesh protruding and blood oozing out of the wound. At
the Preparatory Examination she has deposed that
"I saw
intestines out."It is alleged that the Accused was responsible
for causing the death of the deceased hence this
charge of murder
against the Accused to which he pleaded not guilty. The deceased was
a nephew of the Accused.

It may
later be important to consider an event that happened two or three
months before the 21st March 1990. It concerned a heavily
pregnant
and sickly woman MATHIBANG SELIALIA who was to be transported to
Makhoaba Clinic. The chief invited men of the village
of the Accused
which is Khochaneng to carry this sickly lady to the clinic. This was
done. One of the village men was absent. It
was the deceased. The
absence of the deceased was made an issue before the Chief. The
deceased was reprimanded. It was revealed
that it was the Accused
(deceased's maternal uncle) who informed and reported about the
absence of the deceased or rather he caused
that to be made an issue.
At that meeting the deceased is alleged to have said to the Accused
"you will go where you know"
(u tla tsamaea moo u tsebang).
The meaning of the expression is a threat that the person threatened
will be harmed wherever he
is met by

3

the
person making the threat. The Chief was urged to take steps against
deceased for the threat. The Chief reprimanded the deceased.
Indeed
the Accused says that he continued to be on friendly terms with the
deceased but he no longer trusted him. On the day of
the 21st March
1991 the Accused had been on his way to one of the villages to
register his animals or such like business but he
was going alone
into a rivulet where he met the deceased who was also alone.
Apparently no one and certainly none of the witnesses
saw the events
that followed when the Accused and deceased met. The deceased was
fatally stabbed and the Accused sustained injury
on one of his
fingers. It was a knife wound.

All what
the Court is asked to work on and reach a conclusion on the
circumstances that surrounded the infliction of the fatal wounds
on
the deceased. There are a number of versions and variations to the
circumstances. These are a result of a report made by the
Accused and
the deceased to P.W.1 MATHOTSE MOTHATINYANE (who was also P.W.1 at
the preparatory examination) and P.W.2 No. 1413
2nd Lt. Lechesa a
retired police officer who was P.W.5 at the preparatory examination)
and lastly following evidence under oath
by the Accused himself.

P.W.1 and
P.W.2 were honest witnesses. indeed P.W.1

4

was quite
unsettled by the cross examination of Advocate K. Mosito on a very
important issue namely whether at the time the deceased
was making a
report the Accused had already arrived and both were in the presence
of each other. I am satisfied that the true situation
is as she
deposed to at the Preparatory. Examination. That is, after receiving
a report from the deceased she walked out. "At
the time Accused
was dismounting a horse in my forecourt." P.W.l had taken the
knife from the deceased before she (P.W.I)
walked out. I would find
that there was nothing to gainsay that the knife actually belonged to
the deceased. At the time the Accused
then came and was dismounting a
horse in the forecourt.

At most
the only issue over which the deceased and the Accused confronted
each other was the ownership of the Knife. None of the
two people
told P.W.1 their stories in the presence of each other. Accused
denied that the knife was his. I was satisfied beyond
doubt that
P.W.2 was telling the truth as to the nature of the statements made
to him by the Accused. This is separate from the
truth of the
statements. Counsel for the Accused argued forcefully for rejection
of the statements as being inadmissible. One of
the reasons is that
when deceased told his story to P.W.l the Accused was absent and the
evidence can only be inadmissible hearsay.

5

I might
as well outline what the three versions of the circumstances of the
wounding of the deceased are. The first version (as
reportedly told
by the deceased) is that the deceased and the Accused struggled after
the Accused had asked for tobacco from the
deceased. The deceased had
replied that he had no tobacco whereupon the Accused stabbed him and
they struggled for the knife. In
the process the Accused was also cut
on the thumb or one of his fingers. It is this version if true, that
would still beg the question
as to how the knife came into possession
of the Accused. This pertinently and inextricably revolves around
that unredeeming factor
that the knife belonged to the deceased. It
is therefore difficult to separate the question of the stabbing from
the aspect of
the struggle. Unless there is a satisfactory
explanation as to how the knife got out of possession of the
deceased. In that way
it is difficult to characterize the initial
report made to P.W.2 by the Accused before the Accused was warned as
a different version.
It is in that first report to P.W.2 which he
said he received after he had sent for a van from Mokhotlong after
receiving report
about the death of the deceased. The report is
stated below.

P.W.2
said that Accused later arrived at the police station and found the
witness outside his office. Accused approached him. He
said he wanted
to talk to him. He

6

agreed to
talk to Accused and they entered into his office. It was then that
the Accused reported that he had stabbed the deceased
wish a knife.
After being cautioned he then gave the following story. That the
deceased asked for tobacco from the Accused. Accused
denied having
any tobacco in his possession. Thereafter the deceased produced a
knife and threatened to stab the Accused. They
struggled for
possession of the knife and this resulted in the deceased being
stabbed. In this version I do not see the Accused
admitting that he
stabbed the deceased. The problem with the first version, for
whatever it is worth, is that it is certainly unhelpful.
Ho
circumstances are mentioned at all. It may even be that the
circumstances were similar to those described to P.W.I. This would
be
very important on the question of culpability or legal guilt as we
all understand for the purpose of convicting the Accused
on the
offence charged or on any of its competent verdict. I suppose this
should be called the second version while that of the
first report be
made to the P.W.2 is the third version which speaks about a struggle
of some kind that resulted in the stabbing.

The
Accused was taxed by the Crown Counsel about the statement allegedly
made by the Accused on Oath in his affidavit supporting
the
application for bail in case number CRI/APN/198/90 at paragraph 4. He
said therein :

7

"4

On the 22nd March 1990 the said deceased who I found on the way
fought me for no reason whatsoever. He stabbed me with a knife
when
we struggled for the possession of the same knife he accidentally
stabbed himself. He died the following day of the same wound."

The
Accused denied making this statement or a statement of this content.
He said it was a mistake on the part of the instructed
Attorney to
have put in a different set of facts. I did not believe the Accused
in his regard. But what is the value of the statement?
Would it make
the Accused culpable or legally guilty of any of the competent
verdicts of the charge? It can only mean that he is
a liar. But then
what is the true story? Would the Accused being obliged to tell a
true story? Does he bear any onus?

The final
version or a variation of one of the versions is that given by the
Accused himself. He chose to give a statement on oath.
He was
cross-examined with great care by Mr. Ramafole, the Crown Counsel.
The deceased was found by the Accused in the rivulet.
The Accused was
about five paces from the deceased and about to go past him. Then the
deceased stood up and said "What did
I say to you?

8

(Ke ne ke
reng ho uena?) The deceased had a knife on the left hand and a stone
on the right hand. He put off his blanket. It was
then that the knife
on the left hand was exposed. He hit the Accused with a stone on the
left side of the hairline. The Accused
fell and was on all fours. But
he immediately rose. The deceased was poised to stab him on the upper
left torso near the upper
chest near the neck-line. The Accused
parried the knife blow with the result that he was wounded on his
finger. After some struggle
or movement the deceased ended up being
on the lower end of the slope or the incline. At that time, the knife
was held by the deceased
next to his lower abdomen, in some movement.
Whereupon a kick was delivered by the Accused to the deceased's hand
in which the
knife was held. As a result the knife stuck into the
deceased's body. This resulted in the wound that caused the death of
the deceased.
This version that he kicked the knife and that it stuck
into deceased's stomach he had previously reported to P.W.I as
revealed
in the P.E. proceedings. The deceased died twelve hours
later while in possession of the nurses at Makhoaba Hospital. There
was
enormous delay in treating the deceased. It was said in evidence
that a letter from the chief had long been awaited. Deceased died

before any treatment was ministered on him. I did not accept that
this amounted to novus actus interviniens on the basis of which
the
Accused ought to be exonerated. I however did

9

not
accept that there was a good explanation for the delay.

Mr.
Ramafole was permitted by this Court to ask the Accused to
demonstrate in Court, the manner in which he kicked the deceased
as
aforesaid. This the Accused did.. Mr. Ramafole contends that the
Accused has been very pathetic when he tried to demonstrate
to the
Court how the stabbing took place. That may be so. But what he did
was not impossible. Its success depended on so many things,
the
terrain, the speed and movement of the contestants all which could
not be fully demonstrated. I know of situations where people
have
fallen over their own knives and where people have fallen over their
guns with fatal consequences. I repeat that what the
Accused
attempted to demonstrate was not impossible. Due to the peculiar
problems of this case, most specifically that there is
no one to
gainsay the Accused on the aspect, I would place no value on the
demonstration.

At the
end of the day we have the following aspects to the evidence before
Court which can be said to be common cause. On the day
and at the
time stated the Accused and the deceased received injuries most
probably from each other. (in the event that Accused's
story as
deceased's self-inflicted is disbelieved.) Both the deceased and the
Accused gave reports to P.W.I. Accused gave a report
to

10

P.W.2 in
the version or variations as already described. The Accused himself
bore an injury attributed to the deceased's attack.
The attack may
have been unlawful. It is common cause that every allegation of fact
made by P.W.I as relates to the injuries sustained
by the deceased
and the ownership of the knife (where he says the knife belonged to
the Accused), as well as of issue of fact related
to P.W.I when so
related by the deceased to her:

1. The
   statement was made by the deceased in the absence of the Accused.

   
   

2. The
   statement was made not in expectation of death and in a way
   expressing loss of hope or imminence of death.

   
   

It will
presently be shown how the underlined aspects inevitable assume
importance as Accused's Counsel did eloquently argue.

P.W.I has
given evidence about the report by the deceased and the
circumstances. I would place no. value on the statement of the

witness except to accept that it was in fact made. In law a witness
cannot rely on a statement made by a non-witness if such statement
is
to be used

11

testimonially,
that is, if such a witness intends to rely on such statement as proof
of the truth of its concents as against that
it was in fact made as
aforesaid or tendered to prove that it was made. What this means is
that in those circumstances, the concents
of the statement would be
inadmissible hearsay, in that assertions made by persons other than
the witness who is testifying are
inadmissible as evidence of the
facts asserted. (Subramaniam vs Public Prosecutor (1956) WLR 963 1956
Crim. L.R. 621, and Seisa
Nqojane vs NUL C of A (CIV) No. 27/1987 at
pages 31-33). Refer to statement of Ackerman J.A. in Seisa Nqojane's
case (above) at
page 33 where the learned judge says ;

"He cannot even prove when his documents came into Respondent's
possession, even if there was an express note to such effect
by a
former Registrar on the document, because to do so would be to use
the assertion of a non-witness testimonially." (My
underlining)

It was
correctly submitted therefore that the only facts of evidential value
or which P.W.I would rely on her evidence are the wound
she saw. what
she was told by the Accused and only what she has as her personal
knowledge of. She did not have anything of relevance
as her personal
knowledge.

12

I
accepted the defence's submission that it is trite law that a
statement by a deceased person as to the cause of his injuries is

admissible on a trial for murder of that person, although the
deceased did not expressly refer to his expectation of death. It
is
sufficient if the circumstances show that he expected death soon and
without hope. A dying declaration is admissible provided
it is
offering the evidence that the deceased at the time of making of the
declaration had abandoned all hope of recovering. For
his assistance
the Counsel for defence cited the two cases of R v Woodcock 168 ER
357 and R v Jenkins 20LT 372). I found the propositions
sound on the
law and the two cases accordingly very helpful. I did not find that
it was fair to the economy of this judgment to
belabour this aspect
in-as-much as the Crown did not rely on the issue or existence of a
dying declaration. I may point out that
indeed in evidence, P.W.I
herself expressly said there was nothing and no circumstances pointed
to some expectation by the deceased
of death, or loss of hope, or all
hope of recovery.

The
Learned Counsel for defence has asked this Court to disregard to
statements made by the Accused to P.W.2 at the police station
on the
basis that :

"The common law allows no statement made by the

13

accused against himself unless it is shown by the prosecution to have
been a free and voluntarily made in the sense that it has
not been
induced by any threat or promise proceeding from a person in
authority." (See Innes CJ in R v Barlin 1929 AD 459
at 462)

It is
correct that in criminal proceedings compliance with this requirement
has to be proved by the Crown. The rationale behind
the requirement
or insistence to comply are simply to guard against absence of fair
play and presence of oppression on the part
of the authority to whom
a statement is alleged to have been volunteered. When the accused
does not deny that a certain statement
was made and in fact goes into
the witness box to confirm that such a statement was made freely and
voluntarily the Court would
not infer prejudice of any kind. This
element of voluntariness can even be inferred from and measured
against all surrounding circumstances.
I observe that all that the
Crown had to do was to point to such circumstances showing that a
statement was made to P.W.2 freely
and voluntarily. In effect, this
the defence does not deny. To that extent (for the purpose of proving
that the statement was made)
I would not reject the statement. To
reject the statement would be to carry formality too far. But the
question still remains.
What would the evidence

14

before
P.W.2 amount to?

I may
find that I have closed this judgment without commenting about the
person of the Accused himself. I want to avoid that. I
believed that
the Accused was about 55 years old. The careful cross-examination
revealed the Accused for what he probably was.
He appeared to be
greatly endowed with native wisdom. At no time was he flustered by
any of the questions form the Crown. He easily
rode over them. One of
the clear examples is when he went about the demonstration of the
deceased's attack with the knife. He was
ever so courteous to the
Court and all. I became convinced that not only was the Accused too
wordly wise by the standard of his
community despite his beguiling
appearance. He appeared to have had contact with the workings of
Courts or had some such experience,
may be, from the Republic of
South Africa where he previously worked. This normally brings out a
man of affairs. It was clear in
the way he conducted himself in
Court. I thought I could not ignore remarking about this aspect for
what it is worth.

It must
be clear by now that the following conclusion on unlawfulness,
intention to kill and sufficiency of evidence must follow
from the
analysis of the evidence as a whole. Firstly, the only evidence
available is that the

15

deceased
assaulted the Accused with a stone and attacked the Accused with a
knife. There is no evidence contradicting the Accused's
story that
the deceased attacked him with these weapons. There is no evidence
that the Accused was carrying the said knife at all.
If at all the
knife was ever in the possession of the Accused at any stage, there
has not been evidential proof of how it was finally
found by P.W.I in
the possession of the deceased.

Secondly,
perhaps the Accused is telling an untruth when he says that he kicked
the hand that was holding the knife and this resulted
in the deceased
stabbing himself. In paragraph 4 of the affidavit in support of his
application for bail the Accused said that
the deceased stabbed
himself when the two were struggling for the knife. These two
statements are inconsistent with each other.
They reflect and can
only mean that the Accused might have been lying in respect of one or
the other of these versions. However,
an accused person cannot be
convicted simply because he is a liar. Mofokeng J had to say this
about this aspect in Rex vs Emmanuel
Qoli Ntoi CRI/T/39/77 7th April
1978 (unreported). "Mr. Maqutu submits that an accused person
should not be convicted because
he is a liar. The onus of proof in
this case is on the Crown. There is no obligation on the accused to
say anything. The choice
is entirely on his own. It is accepted that
it is

16

sufficient
if the Accused's evidence or story should reasonably be true. The
Court: is not entitled to convict merely because the
accused's story
is improbable. The Court must be satisfied not only that it is
improbable but that beyond any reasonable doubt
it is false (R v
Difford 1937 AD 370 pp 398-9, R v Monyako, CRI/T/7/75 unreported at
p. 6). If the evidence for the Crown does
not establish the quilt of
an accused it would not matter what lies the accused told. That would
not advance for Crown's case an
iota. But, as Jacobs, CJ, said in Rex
vs Moroka Mapefane, CRI/T/80/71 (dated 18th day of December, 1972, at
page 8 (unreported)

"His (accused's) lies might in certain circumstances
sufficiently swing the balance against him ......" per Mofokeng

J in Rex vs Emmanuel Qoli Ntoi CRI/T/39/77 dated 7th April. 1978. (my
underlining)

The
following factors are clearly underlined in the above quotation.
Firstly the Crown bears the onus of proof throughout which
it must
discharge beyond a reasonable doubt. Secondly, the Accused's story
need not only be improbable. It must be false beyond
a reasonable
doubt.

I now
come to the third consideration in the line of

17

the
conclusions I will want to draw. This injury which resulted in the
puncture of the spleen might conclusively suggest use of
considerable
force. It might also mean the opposite. This would be so, in the
absence of testimony showing that, in an expert's
opinion, the force
used was considerable. This is more especially so where, as in the
instant matter, there are no factual factors
established upon which
this Court may infer use of considerable force. I therefore reject
the Crown's submission that the means
used were more than
commensurate with that used through a knife. That a knife could be
compared with a kick. That is not so. A
kick is clearly less
dangerous than a knife. It is clear that all that the Accused did was
simply to ward off the attack. The facts
of the Accused's case cannot
therefore permit of any inference on intention to kill nor unlawful
assault. It is only consistent
with self defence. The facts go
further. They prove that the Crown has failed to establish any motive
or premeditation for murder
on the part of the Accused.

Having
considered all the factors underlined in the above quotation from the
case of Rex vs Emmanuel Qoli Ntoi and the other conclusions
and
having made an analysis of the Crown's case I do not find that any
grounds exist upon which I may convict the Accused for the
crime
charged or at all. He would in addition be entitled to a benefit of

18

doubt. He
is accordingly found not guilty and is discharged.

T.
MONAPATHI

JUDGE

For the
Crown : Mr. Ramafole

For the
Accused: Mr. Mosito