CRI/T/22/89

IN THE HIGH COURT Of LESOTHO
In the
matter between:-

R E X

and

MATHIBELI PITSO Accused

J U D G M E N T

Delivered by the Honourable Mr. Justice J.L. Kheola
on
the 26th day of October, 1990.

The accused is charged with the crime of murder in that
upon or about the 25th day of December, 1987 and at or near
Thupa-Likaka in
the district of Maseru, the said accused did
unlawfully and intentionally kill Bokuluba Mosamo.

The accused pleaded not guilty to the charge.

The preparatory examination depositions of Lt. John
Tihabi and Lefa Khoarane were formally admitted by the defence and
form part of
the record.

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The first witness called by the Crown in this Court is
Kelebone Khoarane. He testified that on the 25th December, 1SS7 he
was in the
company of Lenka Khoarane (P.W.2), Khojane Mokheseng
(P.M.3) and the deceased. They were herding cattle at a place called
Sekoting
which was a reserved pasture. According to him the area of
Likoting falls under the jurisdiction of one Mpota who had actually
declared
the said area as a reserved pasture. He denied that the area
fell under the jurisdiction of the accused who is a headman in a
neighbouring
village. As they were herding their cattle the accused
and one Maila Mphou (D.W.2) arrived. At the time of their arrival,
the witness
and his companions were sitting above the cliffs and
overlooking their cattle. The accused and D.W.2 were on horseback and
when they
passed below the cliffs near where the witness and his
companions were sitting, the accused insulted them and said they were
grazing
cattle on an area set aside as a reserved pasture. They did
not respond to the insults and the accusation.

The accused and D.W.2 passed and went to the cattle and
started to drive them. D.W.2 tried to collect other cattle which did
not belong
to the herd of cattle which were under the control of the
witness and his companions, but the accused said he should leave
those
other cattle but drive only those belonging to the witness and
his companions. Kelebone Khoarane (P.W.1) says that as soon as the
accused and D.W.2 drove the cattle away they decided to go home and
came down the cliffs through the only route that was available
there.
This route led them to a spot where the found themselves infront of
the cattle which were being driven by the accused and
D.W.2. The
accused dismounted and fired in their

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direction; the bullet passed between them. When asked
how he saw the bullet pass between them, P.W.1 said he heard its
sound. At that
time the accused was about ten paces from them. Lenka
Khoarane ran away when the first shot was fired. As they continued
to descend
the slope the accused fired the second bullet which passed
on their side. P.W.1 says that he was walking side by side with the
deceased
and Khojane was infront of them. He heard the third gun
report and when he turned he saw that the deceased had fallen down.
The accused
mounted his horse and drove the cattle away.

The deceased had a small wound on the back of the right
shoulder and an open wound on the left side of the neck. The latter
wound
was bleeding . The deceased died immediately after the
shooting.

In cross-examination P.W.1 said that it was customary to
graze their cattle at the reserved pastures during Christmas day and
that
there was no need to declare the reserved area open for grazing
for that day only. They had just passed infront of the cattle and
were about ten paces from them when the accused fired the first shot.
The accused was behind them. He denied that when they came
down from
the cliffs they threw stones at the accused and D.W.2. He denied that
the accused fired warning shots in the air. They
did not run away
when the accused fired shots at them because they had lost hope of
survival. He denied that the accused dismounted
his horse because of
the stones that were being thrown at him.

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P.W.2 Lenka Khoarane corroborated P.W.1 on all material
aspects of the case. He was sitting above the cliffs with the
deceased, P.W.1
and Khojane Mokheseng when the accused and D.W.2
passed below the cliffs. The accused insulted them and accused them
of grazing their
cattle at a reserved pasture. He pointed a gun at
them and passed to the cattle. They decided to go home because they
cattle had
been seized and were being taken to the pound. He remained
at the top of the cliffs when the others went down. Immediately after
their departure he heard a gun report below the cliffs and ran away.
He returned to the scene of the crime long after he had heard
the
third gun report. He found that the deceased was already dead and he
does not know how he met his death.

P.W.3 Khojane Mokheseng also corroborated P.W.1 on all
material aspects of this case. He deposed that on the day in question
the accused
and D.W.2 found them sitting above the cliffs. The former
insulted them and threatened to shoot and kill them. They did not
respond
to the insults and the threat. The accused and D.W.2 went to
the cattle and started to drive them away. P.W.2 says that they
decided
to go home and came down the cliffs through the nearest route
available to them. As they came down the accused dismounted his horse
and fired two shots at them. They continued to walk down the slope.
The accused followed them. When he (the witness) looked back
he saw
the accused following them; he warned the deceased that the accused
was following them. Even before the deceased could answer
him, he
(deceased) was gunned down. The accused mounted his horse and joined
D.W.2 to drive

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the cattle to the pound in the village. P.W.3 says that
they tried to help the deceased but without any success because he
died on
the spot. He denied that they tried to stop the cattle from
being driven away by the accused and D.W.2. The deceased had a wound
on the back of the shoulder and another on the base of the neck.

The accused is a headman in the village of ha Topa. He
claims that the area of Sekoting falls under his jurisdiction. On the
day in
question he was going to Loting where one of his cattle had
gone missing. That was the reason why he was carrying his shotgun. On
his way to Loting he saw cattle grazing at Sekoting which was a
reserved pasture. He decided to go and seize those cattle and impound
them. He was in the company of D.W.2. When they came near the cattle
they saw herdboys sitting above the cliffs. He asked them who
had
allowed them to graze their cattle there. They did not answer him.
They passed and started to drive the cattle. The herdboys
came down
the cliffs and stood infront the cattle. They started throwing stones
at the accused and D.W.2. All of a sudden they passed
the cattle and
came straight to him (accused). He was still on horseback. As they
continued throwing stones they hit the horse. It
jumped up and threw
him to the ground. His gun also fell down. Realizing that he had no
alternative but to defend himself, he took
his gun,loaded it and
fired in the air with a hope to scare away the herdboys who had
actually cornered him under the cliffs. They
did not run away when he
fired in the air but they kept on advancing towards him and throwing
stones at him. He says that

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when he fired that first shot P.W.3 was only about five
paces from him; instead of running away when he heard the gun report
he merely
closed his eyes for a short while. He loaded his gun again
and fired in the air. They kept on advancing towards him and throwing
stones. He was all the time retreating and evading the stones that
were being thrown at him.

The accused testified that there was a group of herdboys
who were throwing stones and denies that only P.W.1, P.W.2 and P.W.3
were
involved in the fight. Regarding the third and fatal shot that
he fired, accused says that he does not know hot; that happened. He
does not know how he loaded the gun and shot the deceased. The reason
for this is that he was too frightened because he realized
that they
were going to kill him. He noticed that something was amiss when some
of the herdboys went to one of them who had fallen
down. He rode his
horse and joined D.W.2 in driving the cattle to the pound.

D.W.2 Maila Mphou corroborated the accused in all
material respects of this case. He, however, denies that the accused
was concerned
below the cliffs. He estimates that there were over
twenty herdboys who were throwing stones at the accused.

I have considered the evidence of the Crown witnesses as
well as that of the defence witnesses and I am of the opinion that
their
statements must be taken with a pinch of salt. There was no
reason why P.W.1, P.W.3 and the deceased went and allegedly passed
infront
of the cattle which were being driven to the

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pound. Even if there was only one path leading down the
cliffs, they would have waited until the cattle and their drovers had
passed
that point of the cliffs. In any case, the defence witnesses
testified that there were several paths that one could take from the
top of the cliffs. I am of the opinion that the only reason why they
went infront of the cattle was to stop them from being taken
to the
pound. It is a very common occurrence that Basotho herdboys never let
their cattle go to the pound without some resistance
especially where
there are two conflicting claims over the area in question. in the
instant case the accused claims that the area
of Sekoting is under
his jurisdiction. On the other hand the Crown witnesses deny this and
allege that the area falls under the jurisdiction
of their own
headman.

Having concluded that the herdboys resisted the
impounding of their cattle and stood infront of them, the next
question is whether
they threw stones at the accused and put his life
in danger. It seems to me to be probable that some stones were thrown
at the accused
and the cattle in order to force them to go in the
opposite direction. I am saying some stones because I do not agree
with the defence
witnesses that a group of more than twenty herdboys
were involved in the stone throwing. Basotho herdboys learn the art
of throwing
stones at an early age and it is altogether impossible
that they can miss a target just about fifteen paces from them. In
fact the
accused says that at one stage P.W.3 was about five paces
from him. I do not believe that P.W.3 could miss him at that
distance.
If more than twenty

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herdboys of the ages of the Crown witnesses were
involved in the throwing of stones, I am sure that the accused would
have been hit
several times and would have died. I am convinced that
only three herdboys were involved in the throwing of stones.

Was the life of the accused in danger at any time during
the stone throwing? I do not think so. The accused dismounted, took
out a
cartridge from his pocket, cocked the shotgun, loaded it and
then fired in the air, as he alleges, but I am convinced that he
fired
at the herdboys but missed them. He loaded the shotgun for the
second time and the third time. The loading of the shotgun is a
fairly
long process and the accused could not have had the chance to
load the gun under the circumstances he wants this Court to believe.
According to him the attack by this group of herdboys was so fierce
that he thought he was going to die. Under the circumstances
he has
described he would not have had the chance to load the shotgun. He
was able to load it three times because the stone-throwing
must have
been very sporadic.

The Crown witnesses testified that when the deceased was
shot they were already walking away and had their backs towards the
accused.
I think this allegation is confirmed by the fact that the
entry wound was on the back of the right shoulder and the exit wound
was
on the left scapula region. P.W.4 Trooper Makhoali examined the
dead body at the scene of the crime and established which between
the
two wounds was the exit wound. It was, as usual, much bigger than the
entry wound. His evidence on this point was not challenged
by the
defence and I accepted it.

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In the view that I take the deceased was shot from
behind and was not facing the accused. He was, therefore, not
throwing any stones
at the accused at the time he was shot. He was
not posing any danger to the accused. The accused alleges that he
does not know how
he shot the deceased because of the fierce
stone-throwing at him by a group of herdboys. He is telling a pack of
lies about the fierce
attack because he would not have escaped
unscathed. A stone in the hand of a Mosotho herdboy is a very
dangerous weapon and usually
directed at its target with a very high
degree of precision. The evidence and the indications are that there
might have been sporadic
throwing of stones at the beginning,but when
the shooting down of the deceased occurred, it had completely stopped
and the deceased
and his companions were walking away with their
backs towards the accused.

Miss Tau, counsel for the accused, submitted that
the accused was not just under pressure of the attack but he did not
have any other avenues
open to him to ward off the attack. He is an
old man much older than the Crown witnesses who were involved and the
deceased. He could
therefore never have been able to outrun them.
Moreover, he was attacked with stones, and therefore he could not
have been able to
run and at the same time side track the stones. I
think this submission is based on the wrong assumption that the
defence evidence
is correct that the accused was under pressure of a
fierce attack. I have already rejected that evidence.

She referred to The Law of South Africa, 1981, Vol. c at
page 39 where the learned authors say :

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"If it is necessary to use force to repel an
unlawful attack, the measure of force must be reasonable in the
circumstances. The
defence must merely be deterrent and not
retributive -the criterion is reasonableness and not whether defence
was commensurate with
the threatened harm."

1 entirely agree with the above statement of the law and
it seems to me that in the present case the defence was retributive
because
the accused shot a person who was no longer facing him or
throwing stones at him.

I have already found that at the beginning of the
encounter the deceased and his companions probably threw stones at
the accused and
the catle in an attempt to stop him from impounding
them. However, at the time he shot the deceased the throwing of
stones had stopped.
The deceased and his companions were either
running or walking away as a result of the first two shots which,
according to their
version, narrowly missed them. I am of the view
that at the time he shot the deceased, the accused was not in danger
of his life
or serious bodily injuries because the attack had
stopped.

In Hope v. Rex 1917 W.P.D. 146 Broome, J. said:

"I should be the last to scrutinize too closely any
retaliatory action in the presence of threatened danger where an
assailant
had raised his weapon with the intention of committing an
assault. It would of course be absurd to suggest that one must wait
until
the blow has fallen before taking retaliatory measures, and if,
in the present case, there had been nothing more than an assault
upon
the aggressor there would have been good ground for an appeal. This
assault however is justify upon the ground of self defence;
but the
law is that if the person assaulted does not attack the aggressor
until

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the affray is over, or until his assailant is running
away, that is not self defence such as would excuse an"
assault. Nothing more must be done than is necessary for
the defence of the person or property. If the counter attack is
excessive, or greater
than is necessary for mere self defence, or is
made after all danger is over, there would be no justification."
(My underlining).

I find the accused guilty of murder. My assessors agree.

J.L. KHEOLA JUDGE

26th October, 1990.

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EXTENUATING CIRCUMSTANCES

1. There was no premeditation - the accused
found the
deceased and his companions grazing cattle

at the reserved pasture by chance because he was on his
way to Loting where his cow had been reported missing.

2. There was provocation - although the provocation
was
not a defence to reduce murder to culpable homicide,

I think it can be taken into account as an extenuating
circumstances; I found as a fact that at the beginning of the fight
the deceased
and his companions did throw stones at the accused.

I come to the conclusion that there are extenuating
circumstances.

SENTENCE:- Six (6) years' imprisonment.

Disposal of the shotgun:- It is forfeited to the
Crown.

J.L. KHEOLA JUDGE

1990. 6th October,

For Crown - Mr. Mokhobo
For Defence - Miss
Tau.