CRI/T/58/90

IN
THE HIGH COURT OF LESOTHO

In the matter of :

REX v

MONYAMANE SIBETE MOHOLA

HELD AT QUTHING

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 14th day of December,
1990

Nothing untoward seemed to foreshadow the breaking of
dawn of the day 7th September, 1989. Little did the policeman
Motlatsi Mahomo
know that this would he his last day alive, less
still had he cause to think that his death would be marked by a
variety of strange
coincidences. Indeed had he foreknowledge of what
fate had in store for him he would not have ventured out to Lepule's
Hotel where
he was seen taking draughts of beer in the company of
jolly friends.

Lepule's hotel and Bottle store hardly a stone's throw
from the deceased policeman's station at Quthing camp, are situated
at Lower
Moyeni where civilisation is vigorously engaged in a tug of
war with primitivity. Morning hours are reckoned not by the clock
hut
by the cock-crow. Evening hours are reckoned by the closure
time of Lepule's Bottle store,

/usually

-2-

usually 7.00 p.m. if precision is of any consequence.
Otherwise the intervening times between the above time pegs become
exceedingly
erratic as they are reckoned from the closure time of
Lepule's Hotel bar which sometimes occurs at midnight whereas at
others the
bar remains open the whole night.

It is against this background that on the day in
question before Lepule's Bottle Store closed, the accused and P.W.2
Khauhelo Mahitle
and others were engaged in a game of cards and dice
within the unroofed walls of Sello's parents' home.

The game became lively and the participants merry
because the accused was providing money to buy beer to be drunk by
him and those
present. P.W.2's role was to fetch and carry this beer
bought by him with the accused's money from the Bottle Store. He
performed
these errands faithfully on bare feet.

At the end of the card and dice game, the accused whose
financial resources seemed to be inexhaustible that evening suggested
that
P.W.2 and he should repair to the bar at Lepule's Hotel for
further drinks. P.W.2 accordingly went home to put on shoes and came
hack to join the accused on their way to the Hotel bar.

The accused then in keeping with his previous generosity
gave P.W.2 money to buy a quart of beer to which they treated
themselves.

At this hotel they found the deceased and Williams and
others sitting at one table and they joined some others at the next
table.
Members of both tables were drinking.

P.W.2 testified under oath that after some time the
deceased rose from his table and went to the toilet. No sooner had
the deceased
gone there than P.W.2 saw the accused rise and also go
to the same toilet. What transpired between them in there is unknown
to P.W.2.
This is an interval regarding whose goings-on would host
ho left to the accused.

/The

-3-

The accused testified that the deceased did not go ahead
of him into the toilet. Instead, he says, someone he had never seen
before,
hut who was putting on a grey jacket came into the toilet
after him. While in there this stranger accosted him by asking what
his
name was. The accused told him he would not say his name to the
stranger for the latter had not volunteered his. The accused is
adamant that it is not true that he followed the deceased into the
toilet and buttresses his contention by stating that when he got
into
the toilet he found nobody in there.

However P.W.2 went on to say that the deceased who was
wearing a blue and white jersey and another coloured largely blue
with tiny
streaks of red (Exhibit 2 collectively) came out of the
toilet followed by the accused. The two took their respective seats
at their
respective tables.

It is common cause though hesitantly conceded by the
accused that he engaged in Xhosa conversation with Williams in the
course of
which P.W.2 heard William saying to the accused in Sesotho
"This is my child. I know him from Johannesburg". P.W.2
did
not know what the conversation in Xhosa was about for he does not
know that language. The accused's reluctant concession to the
fact
that he was speaking in Xhosa with William is grounded on the fact
that because both he and William know Xhosa it is possible
that they
spoke in it. Moreover he was drunk. P.W.2 later saw the accused
produce a brown okapi knife Exhibit "1"
clasp it and pocket
it. The accused denies ever doing any such thing.

He however conceded that while at the hotel he had this
knife in his possession. Asked how P.W.2 would have known or seen
that this
knife was in the accused's possession, and further whether
it was not possible that P.W.2 had seen it unclasped as he
claimed,the
accused said the only occasion P.W.2 might have seen this
knife was

/at

-4-

at Sello's parents' home where it was being used to open
beer quarts. Asked why it was not put to P.W.2 that this was a
possibility
the accused was clearly in a cleft stick.

P.W.2 proceeded to say that after the deceased and his
party left, he and the accused rose and left. When P.W.2 and the
accused reached
the steps outside the hotel the deceased was lagging
behind having separated from his party who had taken the direction
leading to
the upper part of the village.

In a voice low enough not for the deceased to hear
though the latter was nearly (10 paces away) the accused was heard to
say "these
police dispute over things which are ours and not
theirs". P.W.2 didn't know what things the accused was
referring to. He
inquired hut was vouchsafied no reply by the
accused. The accused denies this. He fortifies his denial by saying
he didn't even
know the deceased, less still that he was a policeman.
Moreover he says P.W.2 is lying for he did not tell the accused that
the
deceased was a policeman.

P.W.2 stated that in the hotel the deceased did neither
speak nor have a quarrel with the accused. Further­more at all
material
times when they were in there the accused never broke
company with him save the occasion when the latter went into the
toilet following
the deceased.

P.W.2 said when he and the accused had reached a point
beyond the hotel lights and P.W.2 was following the accused who was
following
the deceased accused caught up with the deceased. At a
distance of about 5 paces away from P.W.2 saw the accused get hold of
the
deceased by the collar of the latter's jersey., and heard the
accused say to the deceased "do you know me?" This witness
made a demonstration of how the accused did this by grabbing the
lapels of the accused's jacket in one hand and pressing it tightly
against the accused's chest.

/He

-5-

He testified further that it was at night though he
could see clearly what the accused did for he was close by. He
however could not
say what the time was for he was not wearing a
watch. Nevertheless he reckons the Bottle Store which closes at 7.00
p.m. had closed.
It was useless to reckon the time from closure time
of the hotel harbor at times it takes the whole night open.

The deceased's answer to the question posed by the
accused was "I don't know you". The accused is said to
have adopted
an aggressive attitude towards the deceased when he said
this. Thereafter P.W.2 saw the accused's free hand execute a
stabbing notion
towards the deceased who immediately and without
saying a word ran at a jogging pace towards the hotel. P.W.2 did not
see what the
accused had in his hand.

P.W.2 joined the accused on their way to the accused's
home. It was immediately after the deceased had left this point
that the
accused told P.W.2 that he had stabbed the deceased. The
accused of course denies having stabbed the deceased hut the man who
had
earlier been pestering him in the toilet about giving him his
name.

On his part the accused said he did not leave the hotel
in P.W.2's company. On the contrary he left P.W.2 finishing off a
half quantity
of beer as he had run out of his Mills cigarettes
blend and had to go to Maculu's to buy some and was afraid that the
place might
he near closing as it closes at 9.00 p.m. and it might he
too late for him. It was when he had thus left P.W.2 behind and had
made
his way to the steps that he observed the stranger who had
pestered him in the toilet break company with his mates after he had
gone
past them. When the accused had gone downwards and had about
reached the aloes this grey-jacketed stranger who kept coming up like
a had penny caught up with him next to Terikas's home and said "Hey
man. Why take offence when I ask your name". The
stranger got
hold of the accused in a manner demonstrated by the accused.

/The

-6-

The amazing thing about this demonstration was its
similarity to the manner in which P.W.2 had demonstrated to show the
manner the
accused had grabbed hold of the deceased.

In reply the accused said to the stranger "you keep
following me why. Why poster me so?" The stranger in turn said
to the
accused "I have heard that you are full of S....

you hoy. When I ask your name you take offence".
Needless

the to say this though appearing to he/source of the
quarrel

between the stranger and the accused was never put to
P.W.2 who claimed he was there when the accused was seen to he
interfering with
the deceased.

The stranger according to the accused/slapped him on the
face. This I may add was heard for the first time when the accused
gave
evidence in the box. Asked why this should he so he said he
forgot to tell his counsel about it. Asked if he didn't realise it
was important in his defence he acknowledged it to he, hut was
dumb-founded how he possibly could have forgotten it despite its
importance.

Then the accused said he unclasped his knife with his
teeth and stabbed the stranger. However because he was confused he
had no clue
how deep he went. However he said the stab was effected
around the front of the left shoulder as he demonstrated to Court.

Asked if he didn't see any strange coincidence between
the fact that the stab he claimed was effected on the stranger's left
shoulder's
front and the fact that the deceased's stab wound was
above the left breast he acknowledged the coincidence after beating
about the
hush.

He further testified that the stranger went hack at a
run after being so stabbed. Asked if he found no further strange
coincidence
between the behaviour of this stranger as portrayed by
him and the deceased's behaviour as portrayed by P.W.2 in that both
after
being stabbed ran towards the

/hotel

-7-

hotel the accused acknowledged that this was miraculous.

Immediately after stabbing this stranger the accused
said he looked hack and saw P.W.2 who was approaching him some 10
paces away.
He further said positively that p.W.2 saw this stranger.
Indeed he says he even told P.W.2 as follows "This man you just
met
has just attacked me. He is the one who was with me in the
toilet and I stabbed him".

P.W.2 testified that the accused said to him, after
P.W.2 had seen the accused's hand lunge into the deceased's chest and
the deceased
jog away "I have stabbed him. I have stabbed him".

It is a strange coincidence that the accused's own
acknowledged report to P.W.2 about stabbing the stranger and P.W.2's
testimony
about the accused's stabbing the deceased should fall
within the same time frame.

It is common cause that after someone had been stabbed
the accused and P.W.2 went together to Maculu's where the accused
asked the
butcher's handmaid to supply them with cooked meat.

The strange thing though is that while all along the two
had been together except when the accused went into the toilet, it
should
so happen that according to the accused when the stabbing was
effected P.W.2 should conveniently he away from the scene yet
immediately
after the stabbing P.W.2 should appear to have been not
so far from the scene as not to have at least had a glimse of the
event when
it occurred. In other words according to the accused P.W.2
had been left in the hotel when the stabbing took place hut near
enough
to the scene to have met the stranger when running away from
the scene, near the scene at that.

In this posture of events it seems that the Crown's
observation or indeed the Crown's question to the accused that he
introduced this
question of going to buy cigarettes

/and

-8-

and leaving P.W.2 in the hotel drinking the remaining
good quantity of heer,in order to distance himself from P.W.2 hoping
that the
only version at the scene should he that furnished by the
accused and witnessed by no other thus standing a good chance of not
being
contradicted, is good

Because of the extent to which this case is bristling
with strange coincidences the accused was not to he behind hand in
professing
his own observation of some strange coincidence in reply
to a question intended to highlight his tendency to create false
situations.
This is borne out in the following text :-

"Because of the excuse you have advanced namely
that you were going to buy cigarettes you want to create an
impression that
your left P.W.2 behind, and in the course of your
departure this

whole episode started in his absence ... ?

It is a coincidence for I didn't expect to he attacked".

P.W.2 testified that when he and the accused came to
Maculu's the accused asked the butcher's handmaid to sell him cooked
meat hut
before he could be supplied with any he changed his mind and
the two went to the accused's home.

The accused's version was that he actually bought meat
and he and P.W.2 ate it.

The accused says he had told P.W.2 to remain at the
hotel while he was going to buy cigarettes P.W.2 denies this and
buttresses
his denial by stating that there couldn't have been any
reason for the accused to have done so because he had still many
cigarettes
which P.W.2 saw the accused smoking while they were
together.

It is common cause that the accused and P.W.2 on leaving
Maculu's went to the accused's home where they fed on meat and bread.
Their
point of diversions crops up again

/when

-9-

when P.W.2 says the accused kept executing stabbing
movements directed at P.W.2 with the knife held by the accused to
demonstrate
how he had stabbed the stranger. The accused admited that
he showed P.W.2 the knife hut denied that he kept scaring P.W.2 by
executing
those movements against him.

P.W.2 testified further that he saw the blade of this
knife and examined it closely while the accused was playing pranks
with it.
He observed nothing peculiar on it. There were no blood
stains on it.

When asked to scrutinise this knife P.W.2 said he
observed something like rust which he felt he could not have observed
while the
accused was playing pranks with it and saying in
accompaniment thereof "I stabbed him, I stabbed him" for
that scared
him.

P.W.2 further stated that when the accused first told
him that he had stabbed him he had reason to believe he was referring
to the
deceased for no one besides the deceased was there. He
however thought the accused was joking for the deceased said not a
word when
he left the scene running nor did he observe anything on
the knife to support the accused's claim at a later stage when the
accused
was fooling with the knife.

Much was made of the accused's chopped off fingers -two
from one hand and three from another - in an endeavour to play down
the accused's
ability to execute gripping movements and to wield a
knife.

P.W.2 had indicated that the accused's ability to
perform these tasks was beyond doubt for he had observed him even
pushing a wheelbarrow
dispite the alleged disablement. I must say
P.W.2's testimony was supported by the demonstrations that the
accused performed first
when he showed how the alleged stranger
grabbed hold of him and next

/how

-10-

how he plunged the knife into that stranger's upper
body. It was I must say with amazing dexterity. Furthermore the
accused himself
testified that although these fingers are cut he is
able to grip. To his credit he conceded that it was due to his
ability to do
these things that he did not allude to any disability
in his evidence in chief. It stands to he wondered therefore why
P.W.2 was
taxed about the accused's hands and so-called disability to
use his fingers.

The evidence of P.W.3 Detective Trooper Mohlouoa showed
that he went to the Hotel area where he found the body of the
deceased and
was only able to identify it by the Identity Card and
the deceased's note hook on account of the manner that the face was
soiled
with blood and earth. He observed a wound on the deceased's
chest. He took the body to the mortuary. At early dawn at about
3.00
a.m. he and fellow officers went to the accused's home where
they were denied entry. Consequently they deviced a plan whereby
they
sent for P.W.2 to help them bait the accused out of his house.
When this stratagem failed also he and his colleagues forced the
door
open and thus gained entry. The accused complains that they asked
him questions at gun point. But I am satisfied that the
police had
no option hut to force their entry as they did when they were
obstructed from performing their duty in any other way acceptable.

I am also satisfied with P.W.3's evidence that he gave
the accused sufficient and relevant caution before obtaining an
explanation
from him concerning the deceased's death.

Although the accused complained about having been forced
to admit the killing of the deceased it does not seem to me tenable
that
after a knife had been obtained from him which bore the blood
stains as observed at the accused's home by P.W.3, which knife was
an
essential part of the evidence to connect the accused with the
killing, he could

/have

-11-

have been tortured to admitting guilt which depended on
the

weapon used and which was in their possession with all
the

incriminating stains which they hoped to bring to
Court
in due course.

If I could interpose here. In submissions learned
counsel for defence took P.W.2 to task for the fact that in this
Court he claimed
he was scared when the accused was poking the knife
at him, whereas in the Court below he never mentioned that point.
First P.W.2
said he mentioned it. But confronted with its absence he
said the Magistrate had not written it down. Pressed further with
why
he didn't remind the Magistrate when his deposition was read hack
to him he said that either it had escaped his mind or because this
is
an old matter he did not even remember if it was read hack to him.

But it should he borne in mind that a witness is being
led by a public prosecutor who directs him along the areas he
favours. The
matter of whether a knife being weilded so dangerously
close to his body was a question raised by this Court having observed
the
demonstration effected by this witness. Had he said this did not
scare him he no doubt should have been regarded as a liar. The
Court
was satisfied with his forthwright answer. A witness cannot he
faulted in respect of a matter that was not in the record on
grounds
that it is an afterthought.

It would be fruitful while on this point to borrow
Kheola J's observation in an identical point in CRI/T/73/89 R. vs
Let?ola-Koho Lephoto
(unreported) at 17 -

"It is quite true that 'Mamahali did not mention
the threat in her evidence-in-chief in this court. However, that
does not necessarily
mean that she is telling a lie. At the
Preparatory Examination and in her evidence-in-chief in this Court
she was led by the public
prosecutor and the Crown Counsel
respectively. They put specific questions to her and expected her to
answer, them accordingly.
In cross-examination

/a witness

-12-

a witness must answer the questions put to him and in
the course of answering such questions he might come up with
something completely
new, something both the public prosecutor and
the Crown counsel never raised when they led the witness. The
purpose of crocs examination
is to raise new but relevant matters
which may have been overlooked by the witness in his
evidence-in-chief. In answering such questions
the witness cannot be
accused of lying. In a proper case it can be argued that something
is an after­thought. It must be shown
that the same issue was
raised but the witness did not say what he later says".

With respect this is not such case. Nowhere was it
shown P.W.2 answered this question differently at P.E. from here.

Although the accused's narration of events is in large
measure on all fours with the Crown's eye-witness's it however
conflicts with
it at the two crucial points. First where the order of
entry between the accused and the deceased alias stranger into and
exit from
the toilet is involved - and next at the scene where the
accused claims P.W.2 was absent as he had remained in the hotel.

It is significant also that the accused when giving his
evidence her in questions put on his behalf to P.W.3 never alluded to
the
charge preferred against him being prejudicial to him on the
grounds that he was not put to his rights. Thus I am satisfied that
he is not prejudiced by the charge confronting him on grounds of
police ill-treatment of him because in questions put on his behalf
it had been suggested that he was ready to give medical certificates
to support his claim that he had been physically molested hut
none
were produced till be closed his case. No other inference can flow
from this claim than that it is not only improbable but beyond
all
doubt false.

Again despite the accused's pretence that the deceased
was some strange man other than the policeman he stabbed it becomes
clear that
he cannot hope to get away with this pretence in the light
of the fact that the so-called stranger whom he admits stabbing was
seen
running

/towards

-13-

towards the hotel along the direction in which, after
being stabbed, one would expect him to stumble and fall should he
have succumbed
to his injury. Yet by some strange coincidence the
man who is found there dead is not the stranger hut the deceased.

Furthermore evidence was elicited from not only P.W.3
hut also P.W.2 including the accused that at no time around the
period immediately
surrounding the incident that befell the deceased
was there a report or rumour of anyone alleged to have been stabbed
by anyone known
or unknown at or around the place that the accused
claims to have stabbed someone other than the deceased.

It stands to reason therefore that introduction of a
grey-jacketed stranger into these proceedings is a mere red herring
across the
trail if not a spurious creation of the accused's
imagination.

Sooner rather than later his imagination should he
awakened to the tough and uncompromising reality that the strange
coincidences
and the dreamland which he wishes to pin his faith on
point to just one thing and one thing alone, namely that by the light
of true
reality and not some strange coincidence the stranger that he
believes he stabbed and is without trace turns out to he the deceased
Motlatsi Mahomo the policeman whom he found at the hotel and followed
into and out of the toilet and whom he further followed out
of the
hotel to the place next to the aloes near Tikera's house where the
accused was seen by none other than P.W.2 executing a stabbing
movement towards him whereupon the deceased trotted to the hotel near
where he dropped dead.

I have no hesitation in finding that the evidence of
P.W.2 is impressive not only as to its content hut the manner in
which it was
given. It was unbiased, clear and devoid of
exaggerations and of any tendencies to fabricate while under
cross—examination.

/P.W.2

-14-

P.W.2
frankly stated that he is no friend of the against him. He gave
evidence accused's hut would not thereby give false evidence/in
a
monotone of voice that was barely audible to the public sitting at
the hack of the Court room. But when a false question was
put to him
under cross-examination his voice was heard to he raised in an
obvious pique of annoyance towards the cross-examiner and
the
ultimate source from which that falsity was alleged to have
emanated.

I have observed the demeanour of the accused and formed
the opinion that while he is generally calm and reassuring he
suddenly became
shifty and incoherent when the crucial factors
pointed out above were raised against him.

The difficulty that bedevils the accused's version
occasioned by his introduction of the stranger that he claims he
stabbed is that
because this stranger after being stabbed, according
to the accused, ran towards the hotel it would seem natural that if
he stumbled
and fell being overcome by the injury, one would expect
to find him around the hotel area dead or alive. But if the nature
of the
injury was such that he could manage to walk about on his own
one would expect him to report the attack on him to the authorities.

The untenability of the accused's position in either situation is
that none of them obtains save that the person that is found fallen
in the area where one would naturally expect the stranger to be is
the deceased.

In all this one sees in the accused a veiled attempt to
seek to he convicted of a lesser offence yet there is authority for
the view
that :-

"Moreover, if an accused deliberately takes the
risk of giving false evidence in the hope of being convicted of a
less serious
crime, or even, perchance, escaping conviction
altogether and his evidence is declared irreconcilable with the
proved facts a court
will, in suitable cases, be fully justified in
rejecting an argument that,

/notwithstanding

-15-

notwithstanding that the accused did not avail himself
of the opportunity to mitigate the gravity of the offence, he should
nevertheless
receive the same benefits as if he had done so".
See R. vs Mlamho 1957(4) SA 727 at 738.

It was argued for the accused that he he given benefit
of doubt hut the above authority succinctly states:

"An accused's claim to the benefit of a doubt when
it may he said to exist must not he derived from speculation but must
rest
upon a reasonable and solid foundation created by positive
evidence or gathered from reasonable inferences which arc not in
conflict
with, or outweighed by, the proved facts of the case".

In this case the claim is wrongly founded.

The explanations he gave in regard to these factors were
not only improbable as shown above hut palpably false.

The accused's version of the man that he stabbed with a
knife is rejected as false beyond reasonable doubt.

The reason therefore that he hanked on for saying he
entered the toilet first and came out first each time before the
deceased was
to reverse the roles played by the culprit and the
victim. In other words he wanted to make it appear as though the
deceased was
pursuing him. But the lie in this whole episode was
exposed at the place of the stabbing where the words that the accused
wished
the Court to believe were referred to him by the deceased were
clearly heard by P.W.2 being uttered by the accused who said to the
deceased "Do you know me?" And the deceased said "I
don't know you". Coupled with the rough manner the accused
had
grabbed the deceased and the aggressive attitude with which he was
addressing himself to the deceased followed by the stabbing
movement
towards the deceased's chest I have no doubt that it is for very
sinister motive that the accused wishes to conceal the
truth in this
matter by exchanging his role with that of the deceased in respect of
words uttered and their respective order of their
entry into the
toilet and out of it including

/their

-16-

their short trip to the place where the deceased
received a knife blow that ended in his death.

P.W.3 conceded that the accused told him that he had
stabbed someone unknown to him that night. The accused either then
or before
produced Exhibit l. The accused said that he was forced
into incriminating himself. But the authority of S.vs Ismail
1965(1) SA 446 at 449 shows that admissions by pointing out are
always admissible however improperly induced, hence Milne J.P's
dictum
showing that the effect is to admit evidence of a pointing out

"even though the relative confession was obtained
as a result of gross cruelty inflicted upon the person making it".

I have considered R. vs Difford 1937 AD 370 at
373 along with R.v.M. 1946 AD 1023 at 1027 where it is stated:

" the court does not have to believe the

defence story, still less does it have to believe it in
all its details; it is sufficient if it thinks that there is a
reasonable
possibility that it may he substantially true".

To the extent that the accused's story in the instant
case is largely in keeping with the Crown's, to an unwary eye it
might seem
to pass the above test. But in my view it is the quantity
that makes it to look to he on all fours with the Crown's. But when
it
comes to the essential quality which can he equated to
substantial truth it is definitely and lamentably wanting.

Even if it were to he said P.W.2 did not see the
stabbing the circumstantial nature of events immediately following
that occasion
can lead to the drawing of no other inference than that
the subsequent fate of the deceased is ascribable solely to his act.
The
accused said he went out of hotel alone to buy cigarettes at
Maculu's hut P.W.2 testified credibly that the only occasion the
accused
went out intending to go there was for the purpose of buying
meat and at that time P.W.2 and the accused were together.

/The

-17-

The admitted medical evidence briefly shows that the
instrument used to cause the deceased's death is a sharp one that
perforated
the left lung and the aortic wall resulting in
haemorrghagic shock with pericardial tamponade and extensive
haematothorax.

There is authority for the view that if a man thrusts a
knife into the chest wall in an act of unlawfulness against the other
then
the legal inference to he drawn is that he intended the other's
death. To arrive at this inference the Court has to consider the
nature of the weapon used, the part of the body to which the lethal
weapon has been applied and the force applied to inflict the
injury.

In the instant case these factors are present in a
manner that is not favourable to the accused. What is more he
demonstrated utmost
callousness towards his victim immediately after
effecting the fatal injury. See S.v.X 1974 (1) SA 344 at 347
H to 348A where the importance of an accused's conduct immediately
after the offence has been highlighted.

It is the feature of this case that only one witness
testified to seeing the offence committed. However our Criminal
Procedure and
Evidence lays down that it is competent to convict on
the evidence of a single competent and credible witness. The
credibility of
P.W.2 is beyond reproach. See Section 238. The
defence complained that none of the members of the deceased's party
had been called
to testify. But in my view it seems that the solid
ground on which our Criminal Procedure and Evidence is based in this
regard is
that "it is not so much the number of witnesses
as the weight of evidence that should he had regard to".

Needless to say P.W.2's testimony was not shaken under
cross-examination. Indeed it is the mark of the quality of this
witness's
evidence that he did not commit himself by saying he saw
the accused stab the deceased. He only said

/he saw

-18-

he saw him take his hand towards the deceased. It was
only the demonstration that he executed that led the court to observe
that
the motion was a stabbing one. If he meant to exaggerate he
could have easily said he saw the accused stab the deceased with a
knife.

Furthermore the accused said he was alone when he went
to the spot where he was allegedly disobliged by the deceased from
reaching
Maculu's where he intended to buy Mills cigarettes. But
P.W.2 is adamant that this was not true. Hence an inference should
follow
that the accused had something to hide.

It would seem therefore the accused had already plotted
this offence when he went to the toilet following the deceased. Thus
even
if it could he said he was provoked by the deceased in there the
accused had had more than sufficient time to cool down regard being
had to the length of time the deceased and he spent sitting down
after coming hack from there and subsequently following the
deceased
to the spot where he caught up with him and stabbed him. But
even indulging oneself this speculation it would seem unwarranted for
there was no suggestion that on coming out of the toilet the accused
was in any angry mood.

I consequently find that the charge preferred

against the accused for the intentional and unlawful
killing of Motlatsi Mahomo on 7th September 1989 at Lower Moyeni
Quthing has
been properly supported despite his plea of not guilty
given at the start of these proceedings.

The accused's guilt has been proved beyond reasonable
doubt. He is accordingly convicted of Murder as charged.

My assessors agree.

JUDGE
14th December, 1990

-19-
JUDGMENT ON EXTENUATING CIRCUMSTANCES

I have heard the accused's evidence given in
extenuation.In the case of Thembi Nkosi Yawa that's
CRI/T/59/88 this Court had this to say :

"It is trite law that the onus of showing, on a
balance of probabilities, the presence of extenuating circumstances
rests on
the defence. The test to he applied by the court in deciding
on presence of extenuating circumstances is a subjective one. The
matters
to which the court will have regard in considering the
question of extenuating circumstances are well summarised by Holmes
J.A. in
S. v.Lotsolo 1970(3) 476(A)"

Referring to them he said :

"Extenuating circumstances have more than once been
defined by this court as any facts, hearing on the commission of the
crime,
which reduce hlameworthiness of the accused, as distinct from
his legal culpability. In this regard a trial court has to consider
-

(a) whether there are any facts which might he relevant
to extenuation, such as immaturity, intoxication or provocation (the
list
is not exhaustive)

(h) whether such facts, in their cumulative effect,
probably had a bearing on the accused's state of mind in doing what
he did,

(c) whether such hearing was sufficiently

appreciable to abate the moral blameworthiness of the
accused's doing what he did".

In deciding (c) the trial court exercised a moral
judgment. Going further in that Judgment i.e. Yawa this court
had to say the following :

"It should suffice that even though on accused
person may ho said to have taken liquor, that in itself doea not
entitle him to
the benefit that otherwise the existance of
extenuating circumstance can endow on him unless the intoxication had
a hearing sufficiently
appreciable to reduce his moral
blameworthiness".

In the case before me I am told, and it is in evidence,
that the accused is said to have taken liquor. But

/there

-20-

there is a difference here. Evidence adduced by the
accused here shows that he hates police so that one would not he
wrong in coming
to the view that even when sober he has a general
malice against this class of people. In my view a situation of that
nature is
no different from a situation where with an intent to
murder or to kill, an accused person goes and fortifies himself with
liquor
in order to give himself Dutch Courage for perpetration of the
wrongful act.

In this case the accused resiled from the stance that he
had adopted throughout. Regarding such a position at page 242 of
Criminal
Law and Procedure Through Cases by Judge Mofokeng under (c)
the learned Judge says :

"It is clear that an accused may, if he so elects,
resile from a position taken during the trial and adopt a completely
different
stance".

But this position is not without its own hardships of
difficulties as will presently he shown by reference to Khoahane
Sello vs Rex a Court of Appeal matter decided in C. of A. (CRI)
5/80 by Schutz J.A., as he then was. He had this to say regarding
that case on
a similar situation :

"This leaves the question whether he has discharged
the onus of proving extenuating circumstances. After his conviction
he resiled
from his previous version and gave evidence in which he
conceded complicity in the attack on the deceased".

The position in the instant case is no different in so
far as this Court observed that the accused having resiled from the
previous
position supported almost in toto the evidence that
was given by P.M.2.

The learned Schutz J.A. in the case just referred to
said -

"When weighing this version the appellant is in
difficulty, onus apart, which so often arises in this kind of case.
But because
of his radical change of version the appellant is a self
confessed perjuror".

/It

-21-

It was patently clear that when he gave evidence in this
Court in the main trial the accused was still under oath to tell the
truth.
An oath will remain an oath and binding on the conscience of
the person who takes it whether at full or main trial or at
extenuating
stage, To my mind it serves hardly any purpose at all to
take an oath again and then go against the evidence that under oath
one
had given earlier to the Court; and even considering the question
which might well he the case in the particular case that I am dealing
here with that dolus eventualis might he the type of intent in
point The learned Schutz J.A. said -

" that would lead to a finding of dolus

eventualis. Such a finding is sometimes a basis for
finding extenuating circumstances , hut in my view it is not
sufficient in this
case. At best for him the appellant was the
initiator of the mortal attack the object of which was plunder. His
emoral blameworthiness
is not reduced by such a finding in the case
before me."

The accused's sole purpose for attacking this innocent
man was to feed his malice and hatred against the police in that
manner. A
situation of that sort would never never reduce the
accused person's moral hlameworthiness. In that Thembi NkosiYawa
case this Court had also had this further to say:

"I would say it is wrong to believe that
intoxication can never constitute an extenuating circumstance hut it
is also wrong especially
because it would he weird perverted and
untenable, to say that intoxication always extenuates.

It would he a sad day when sober and innocent lives can
he randomly taken away by drunks who embark on the senseless killings
with
a full assurance that the law would not subject them to the same
fate that their victim suffered."

It goes without saying that the role of a police­man
in society is to keep law and order but the Accused's sole purpose
was to
ensure that, and he would he happier if the entire police
force was exterminated. Needless to say

/that

-22-

that would lead to a chaotic state of affairs as far as
the administration of justice is concerned and I don't think people
with that
kind of attitude deserve to live. However as Holmes J.A.
said whatever factor can he said to constitute extenuating
circumstance
cannot he discarded if it is not too remotely connected
with the offence insofar as the Court is called upon to consider the
degree
of the moral culpability of the accused in a subjective sense.
This is not to say fanciful factors can he allowed to pass for
extenuating
circumstances.

Coming again to this question of drink it is patently
clear that when the accused went there he had not reached the stage
of drunkenness
that his fill for the day before he committed the
offence had eventually come to; and it is patently clear that apart
from his general
malice against the police the intention to kill was
formulated or made manifest by the time he went to the toilet
following the deceased
and that he nursed and nurtured this evil
intent and meantime continued drinking. Now I would say therefore
that the state of drunkenness
that he was in at the end of the day
did not come before he had formed his intention. So,conversely it
would seem that when he formed
the intention to kill he was in a
relatively moe sober state of mind. I want to emphasise this because
I wish to indicate that the
law reprobates the type of attitude that
however little one has taken of drink he would he entitled to
extenuation. Furthermore
the accused sought to make a merit of the
fact that when in his cups he is the sort of person who loses his
temper quickly. I need
hardly stress that it is now trite that legal
authority discounts a man's peculiarity of character or idiosyncracy
of attitude as
a factor worth taking into consideration when
determining the existence or otherwise of extenuating circumstances.
Moreover the
accused in his second bite at a cherry told the Court
that he stabbed the deceased with a knife because the deceased had
asked him
what his

/name

-23-

name was.

Having said this I do find that there are extenuating
circumstances in this case. My assessors agree.

MITIGATION : you would he obliged, I am told,
to raise the deceased's head hut I will tell you that custom operates
within an orderly scheme
of the law; and that the law can never
operate unless the police are there to ensure that it does. The type
of sentence you are
going to have will he exemplary such that whoever
thinks of ever taking away a policeman's life will know what he is
bargaining for.
You will go to jail for 25 years.

JUDGE
14th December, 1990

For Crown : Mr. Qhomane For Defence: Mr. Lebusa