1
CRI/T/48/95

IN THE HIGH COURT OF LESOTHO

In the matter between:

REX

v
TSOTANG PELEA

Judgment

Delivered by the Honourable Mr. Justice T. Monapathi on
the 25th day of January 2000

The Accused, who was a member of Royal Lesotho Mounted
Police (RLMP), was charged with the murder of Phallang Mosala
(deceased). Accused
was in the Criminal Investigation Department
(CID) Deceased died as alleged from a gun shot wound which was
inflicted on the 18th
August 1989. The shooting by the Accused which
was not denied occurred at Liquor/Restaurant called Le Joint, in
Mafeteng town in
the district of Mafeteng. Le Joint was about two
hundred metres from the Mafeteng police station where the Accused
worked at the
time in the Criminal Investigation Department. The
deceased died on the 21st August 1989 at Queen Elizabeth II Hospital
in Maseru.

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The deceased had received a gun shot wound on the chest
which did not have an exit wound as also shown in the post mortem
report.
I was asked to note that this finding by a doctor about the
entry wound was to be contrasted with the evidence of PW2 Lisema
Mosoeu
and PW5 Nthonyana Theko who are said to have suggested that
the deceased was facing away from the person who shot him. The report
by Dr. Kim dated 27th June 1994 was to the effect that he examined
the deceased on the morning of the 19th August 1989 when the patient
had been transferred from Mafeteng Hospital to Queen Elizabeth II
Hospital on the 18th August 1989. The doctor's report went on to
show
that treatment was given to the patient as follows:

"Laparatomy was done same morning, and found that
raptured transverse colon and ileum and generalized peritonitis due
to contaminated
by intestinal contents. Repair of colon resection and
anastomosis on ileum and acceding colostomy was made.

Post operative condition was not well and died at 6.10pm
on 20/08/89."

I noted that that was the treatment done: laparotomy and
that an operation was done which unfortunately was not successful. I
noted
that it was not challenged in evidence that the deceased died
on the 21st August 1989 contrary to any reference to the date to the
date of the 20th August 1989 as the date on which the deceased died.
The main question for decision of this Court would be whether
the
Accused intended to kill the deceased with legal intention or
otherwise. Accused has not denied killing the deceased but has
pleaded not guilty and testified that the killing done was in
self-defence against an attack by the deceased with a knife..

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It became common cause that that evening the Accused was
at Le Joint with his co-worker Andreas Mosifa who became (DW2) where
they
had been partaking of liquor. The deceased who was retired
policeman and former colleague of the Accused had later arrived and
joined
the Accused. The deceased had been in company of Nthonyana
Theko (P.W.6). They had sat at the same table that is deceased and
PW6
and Accused and DW2 on the other hand. The time of arrival of PW6
and deceased was disputed. I thought the question of time was not
significant in as much as it was not denied that at the material time
all had been at Le Joint together.

A record of proceedings of the Preparatory Examination
(P.E.) was made available to Court, the defence and the Crown. It was
said
that this was a second set of proceedings after the first one
had completely disappeared. From this last PE whose record was
available
the following depositions and documents were admitted by
the defence and read into the machine and were made part of the
record on
the 26th August 1998. The post mortem Examination Report,
secondly a statement of John Telukhunoana, a ballistics expert.
Thirdly
a medical report dated the 27th June 1994.

The deposition from the PE record which were admitted
were as follows: The testimony of RLMP No. 7218 Trooper Lechesa who
was PW2
at the PE. Another testimony of RLMP No. 1529 Lt. Lebusa who
was PW3 at the PE. And lastly the testimony of Dr. Kim whose report
has been referred to earlier in the judgment. One retired RLMP
Sergeant Mosifa who was PW12 at the PE was not called on behalf of
the Crown and instead he was called by the defence to testify as DW2.

The following witnesses gave evidence for the Crown.
Staff Sergeant Jonas

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(PW1), Lisema Mosoeu (PW2), Captain Chobisa (PW3),
Mokoena Sekoala (PW4), Martha Liphoto (PW5) Nthonyane Theko (PW6).
Then the Crown
closed its case. RLMP No. 3330 Trooper Lephoto who was
PW7 at the PE had died prior to this trial. The Accused put in his
defence
and testified and later called DW2 as I have earlier
indicated.

PWS 1, 3, 4 were police officers whose testimony related
to the part each played after the event, while the other Crown
witnesses
were civilians whose individual testimonies related to the
events proximate to the shooting of the deceased by the Accused.

The gist of Crown evidence was that Accused shot
deceased for no apparent reason and for no justifiable cause. Accused
on the other
hand, having admitted the shooting, claimed having done
so under justifiable circumstances, namely that his life was
threatened by
the deceased and it was at the time when deceased was
lunging at him with an open knife in an apparently stabbing attempt
when he
shot him. The Crown vehemently denied that the Accused was
ever attacked with a knife by the deceased nor that the deceased held
a knife against the Accused.

PW 1 testified that at the time of the alleged killing
of the deceased by Accused he was stationed at Mohale's Hoek police
station
in the district of that name. He learned of the incident
because he was given instructions to investigate the killing of the
deceased
who was a former CID member. He was alleged to have been
shot at Le Joint. It was following his investigations that he was
informed
that the Accused was the person who was said to have caused
the death of the deceased. The witness said he cautioned the Accused
and gave him a charge of the murder of the deceased. The witness said
the gun allegedly used was already in the hands of the police
and was
sent to a ballistics expert before he could handle it.

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PW1 added that as an investigator of the murder of the
deceased he completed a docket which he sent to the office of the
Director
of Public Prosecutions. He was later told that the docket
had disappeared at that office. He discovered that there had never in
fact
been a breaking in into that office contrary to earlier
information.

It was correct that under cross-examination, the witness
admitted having told the magistrate at the PE that he said he did not
discuss
anything with the Accused before he charged him. It appeared
that the Accused made an explanation about the revolver and the
bullets.
These the witness handed in at the PE. The witness certainly
did not speak about an explanation made by Accused concerning a knife
or use of a knife. Incidentally no suggestion was made to this
witness about the statement of the Accused that he was attacked with
a knife.

The witness further admitted that he did not tell the
Court all that he did on the Accused. He replied that he was not led
to disclose
the explanation that the Accused made. He had cautioned
the Accused who said he would not say anything. And he said the
matter occurred
a long time ago. He consequently had forgotten some
of the things. He remembered that Mosifa (DW 2) then a sergeant was
one of the
investigators. That had been present when the witness
first met the Accused. There was lack of agreement which was revealed
between
Counsel in the cross examination of the witness as to whether
Accused was already present when he first met the witness or whether
Mosifa was asked to fetch him. I did not consider the latter to be
very important. I observed that this witness was an honest witness
who did not show any bias.

PW2 who stayed at Ha Ramokhele in Mafeteng knew the
Accused and the deceased. He attended at Le Joint on the 18th August
1989. It
was in the early

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evening and it was already dark. He was accompanied by
PW6. In the Le Joint he found present one Seutloali, Pinkie, the
deceased,
and the Accused who were sharing a table. There was
Malibuseng (PW1 at the PE) and Lephoto who had died before the
hearing of this
case. (He was PW 7 at the PE) Lephoto was accompanied
by his young daughter Martha (PW5). There were several other people
at different
tables partaking of liquor. Electric lights were on. The
deceased and Accused were drinking and having a conversation. The
witness
had not taken note what the conversation was previously
about. He had not been attentive. He then heard deceased say that
Accused
was a detective. Accused replied to say that deceased was a
mineworker.

Deceased then rose up from the table that he and Accused
were sharing. It was as if he was going to buy because he went
towards the
door where there was a counter and a selling point. It
was because the door led to the selling point. He had been about six
(6) to
seven (7) paces when the Accused then followed him. The
witness said he saw the Accused pointing a gun in the direction of
the deceased.
After that he heard the sound of a breaking bottle or
glass. It was at about that time when he heard deceased say: "Pelea
has
shot me." Then the deceased was near the door. At the time
he spoke he was looking back and fell backwards that is not face
down. He was assisted to a vehicle outside which took him to
hospital. The witness ended his testimony by saying he did not see if
the deceased was carrying anything at that time and neither did he
notice if anything was left on the spot where the deceased had
fallen.

The witness was cross-examined by Mr. Nthethe for the
Accused. He repeated that he had gone to drink at Le Joint when he
met Nthonyana
(PW 6) on his way thereto. I later noted a discrepancy
that was brought to my attention between the evidence of this witness
and
that of PW 6. It was that the witness'

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statement that he had gone to Le Joint to drink was in
conflict with that of PW 6 who told the Court that (without
hesitation) that
PW 2 and herself were destined for a discotheque
elsewhere not Le Joint.

PW 2 went on to say that the Accused's table was
adjacent to the door and that the witness' was about seven (7) paces
away from their
table. He had not been interested in what the Accused
and others at their table were saying but he recalled nonetheless
that the
deceased had said "you are a detective" whereupon
Accused had said "you are a mineworker". The witness had to
concede that what he said at the trial was not the same thing as what
he said at the P.E. that Accused had in fact said the deceased
was a
stupid mineworker which was quite derogatory. The witness conceded
that he could have forgotten what he had previously said.
I agreed
with Mr. Lenono the Crown Counsel that, there could unavoidably be
discrepancies in those pieces of evidence relating to
verbal
exchanges between Accused and deceased. This could be attributed to
the noisy conditions in the bar. For instance PW 2 said
"people
were many but were talking loudly but in a happy mood." The
witness could have made a mistake by inaccurately stating
what the
deceased said to the Accused.

The witness was subjected to a gruelling
cross-examination by Mr. Nthethe. It was almost on every aspect of
the witness' testimony
including discrepancies as between the
witness' testimony and that of other witnesses and what was said at
the P.E. Mr. Nthethe wanted
to record the following points, namely:
That it was put to the witness that the deceased wanted to stab the
Accused with a knife
and the witness answered that:

"I did not care to see whether the deceased had a
knife or not."

8 Secondly that:

"I did not care to see what the deceased had in his
hands when he went towards the place where beer was sold."

And
that:

After deceased fell I did not approach the deceased to
see whether he had a knife or not."

It was suggested that this amounted to an absence of a
denial that the deceased did have a knife in his hands. I did not
take it as
an admission.

Another "discrepancy" that was pointed out was
that the late Lephoto sat in the same room as the Accused. That this
statement
the Accused would deny and this would be consistent with
what Lephoto had said at the P.E. With these it was submitted that
the witness
could not be trusted and that his testimony was suspect
and therefore unbelievable. I found this not easy to accept. This
witness
had remained unshaken and true to his version. It was that
the deceased was seen moving toward the selling point whereupon
Accused
was seen looking his direction. He was standing and holding a
small gun. At that time the witness did not see anything until he
looked
up when hearing the sound of the breaking bottle. He saw
Accused pointing a gun. He saw the deceased fall and issue out a
statement
that the Accused had shot him. He did not see the deceased
carrying anything. The witness did not see anything that was left
there
where deceased had fallen. Accused and deceased were about
seven (7) paces from each other. Deceased was certainly not moving
towards
or approaching the Accused. He was going the other way. The
witness was a witness to the truth.

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P.W.3 had been Captain Chobisa. He had retired in 1995.
He had been stationed at Mafeteng at the time of the alleged killing.
He was
also Chief of the Criminal Investigation Department at that
time. He knew Accused as former co-worker, the witness having been
the
senior officer. He knew that the Accused had been issued with
ammunition and a .38 special revolver. He remembered that one evening
he got a report when he was already at home. It was about the
Accused. On the following morning he was shown the Accused's revolver
and three (3) live bullets. These bullets and the gun were sent for
testing by a ballistic expert on the following morning. The gun
which
was exhibited was shown to him. He recognized it. The witness said he
met the Accused on the following day when he reported
to the witness
about the incident at Le Joint. The witness himself communicated the
Accused's report to the commanding officer and
other senior officers
at the station.

The cross examination by Mr. Nthethe involved the
question whether the witness had issued an identifying mark for the
gun, the entry
of the particulars of the gun in the register and how
and by whom it was sent to the expert. All the questions were
answered by the
witness. He had not himself issued an identifying
mark. The register was kept by someone else and the gun was sent to
the expect
by a certain Rapeane.

I did not understand the reason that could have led the
witness who was an officer of a fairly high rank to have denied
having given
evidence at the P.E. stage of the case the P.E. The
record clearly showed that the Captain did give evidence as P.W.14.
It appeared
on page 15 of the P.E. record.

I could record that the evidence was merely formal and
uneventful except the blemish about witness' denial of having
testified at
the P.E. I did not accept that the

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evidence lacked the required cogency nor that it did not
advance the "Crown's case on iota and should be discredited on
the grounds
of unreliability." I noted that the evidence did not
certainly touch on either version. Nor did it especially touch on
Accused's
defence which was contained in the the suggestion about the
knife allegedly having been possessed or used by the deceased who
tried
to stab the Accused therewith when then the latter fired at the
deceased.

P.W.4 was Mokuena Sekoala who was a former member of the
police force in the uniformed branch in Mafeteng where he had been
Second
Lieutenant. He knew the Accused well. He said one night during
the month of August the Accused came to him and gave a report about
the deceased (Mosala). He said he had quarrelled with the deceased
who attacked him. Accused handed the witness a .38 revolver after
having unloaded it of three (3) live bullets. He identified the gun
which was exhibited. The Accused had reportedly not known where
the
shell of the spent bullet fell. The gun had remained in the witness
possession until he duly handed it over to P.W.3 who was
Accused's
superior. He had recorded all the important things in the occurrence
book which entries he showed the Court in the book.
The gun and the
bullets were duly labelled by one Mpopo who was not called by the
Crown.

This witness was cross-examined for an unduly long
period. It was over the issues of the nature of the explanation given
to him by
the Accused when they first met that is, when Accused
reported about the incident. This witness was being blamed (for
absence of
a better word) for having just said at the P.E. about the
Accused after he handed over the gun:

"He made an explanation which I did not
understand."

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This was being contrasted to what the witness said in
his evidence- in- chief. The witness did not admit however that the
Accused
actually told him that he acted in self defence as deceased
was stabbing him with a knife. The witness said he did not find out
why
the Accused shot the deceased. It meant that the witness did not
find out more of an explanation from the Accused. Most unfortunately
the witness said he did not find it necessary to do that. At one time
elsewhere he said he had not been led by the prosecutor to
say what
the Accused's explanation had been. He said he had no good reason for
failing to do so. The Accused had not denied that
he handed over
bullets and a gun. It did not mean much therefore that the witness
was not able to identify the bullets that were
exhibited.

I felt however that some of the questions should have
been more intelligently answered. I did however not find the witness
unreliable
in any way. The matter of the ambiguity, about the
explanation given by the Accused did not amount to an accusation by
the Accused
that he gave the witness a certain report which the
witness did not disclose. Indeed the witness in his evidence- in-
chief stated
that the Accused reported that he had quarrelled with
the deceased. It was not suggested that the witness had the full
story which
he had failed to disclose nor that there was a motive for
hiding anything.

I formed an impression that the witness could only have
been blamed for naivete but certainly not for dishonesty. I believed
this
witness that the Accused had reported that he had quarrelled
with the deceased and had shot him and did not go further to allege
that the deceased had wielded any knife and sought to attack the
Accused.

PW 5 Martha Lephoto was ten years old in August 1989 at
the time of the events subject of the charge against the Accused. Her
father,
since deceased, was

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PW 7 at the PE. He had been a policeman. That is why the
witness knew both the deceased and the Accused who were also
policemen then.
The deceased then stayed at the police barracks with
his wife and family. She knew that at the time of the incident the
deceased
was then working in the mines and was no longer a police
officer as the witness had been told. She had seen the deceased
earlier
in the day on the 18th August 1989.

The witness said she accompanied her father, to whom she
was very close, to the bus stop. His father had intended to go to
Roma, but
then decided to go to Le Joint. There they found the
deceased present. Her father and other sat at the table, which they
shared.
They started to partake beer which came in quart containers.
It was later that the deceased arrived. He was alone. The deceased
then
came to their table and hurled abuse at the Accused. These were
to the effect that "he will castrate the deceased." The
deceased replied and said the Accused "will castrate his own
mother." The witness had not before then heard any exchange
of
words from the deceased and Accused.

This witness testified under cross-examination that the
deceased had in fact never sat down at the table. I took the view
that the
witness was not very sure that there had not been prior
exchange of words before the swear words. This was more so after she
was
taxed with her own statement that there had been prior exchange
of words.

After this exchange of words deceased according to the
witness had strayed from the table to the counter and after a moment
he came
back. He was at the table for a considerable time. The
witness was not able to estimate the time as between the exchange of
words
and when the Accused had come back to their table. The witness
had remained seated and drinking a soft drink. Deceased went

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towards the counter. Accused followed him. When he was
about 7 paces from him he took out a gun from his waist and shot at
the deceased.
Deceased retreated and fell on his back. She did not
see whether the deceased had anything in his hands when he fell.
Accused did
not say anything. He then went back through the door to
the outside. The witness said she recalled very well that she heard
deceased
say that he was shot by Pelea (Accused). The witness then
saw her father and other men go to assist the deceased.

The visibility in the room was good. There was an
electric light on. The witness did not see any weapon except the gun
that was carried
by the Accused. It was a small gun. She identified
the gun which was exhibited. She said it was like the one her father
kept at her
home. The deceased did not have anything in his hands
when he was moving towards the counter. Deceased had after falling
been carried
to a vehicle outside.

This witness was subjected to a searching
cross-examination by Mr. Nthethe. The witness was able to explain
that at the time of the
events she was ten (10) years old. She had
stated that she was thirteen (13) years at the time she gave evidence
before the magistrate
and on one occasion when she had been recalled
before the magistrate after disappearance of her statement. She
testified that her
father could not have been correct (at the P.E.)
when he said that he had been seated in a different room (later
called Bar 1) into
which room the witness was said to have come
running from the other room (later called Bar 2). She reiterated that
she had been in
the same room (Bar 2) with her father. The
significance of this can be seen from what Mr. Lephoto said in his
deposition at the PE
at page 10.

"Accused and deceased were in the same room while I
was in the other while I then heard a report of the gun in the other
room.
I

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rushed there, I met my daughter who was running into the
room in which I was."

The witness did not concede that her father was in a
different room, that is not sharing a table with deceased and others.
As I ultimately
concluded a discrepancy, if there was one, could only
be that the witness' father was in another room. But it could
certainly not
therefore be that the witness could be faulted in what
she observed or her version at all. This remained so, much as she was
taxed
on this aspect.

In the same way as the confusion about the exchange of
words the witness did not recall seeing some of the people who were
in that
room. Alternatively she did not know some of them. Take for
example Seutloali, Nthonyana Theko (PW6) Jonas (PW 1), Mosifa (DW 2)
and Sekoala (PW 4). She admitted she could have seen some of them.
She was cross examined further.

The witness herself was 7 paces from the deceased at the
time of shooting. Nothing could have obstructed her. She was not
aware of
the part of the body where deceased was shot. She understood
the way the doctor described the injury vis-a-vis entry wound. She
insisted
that the deceased had been facing the Accused when the
shooting occurred. She agreed that it could have been at the back.
She however
did not see deceased turning backward or round. A long
story was put to the witness which was said to be the version of the
Accused
to which the witness responded to say "I do not say
anything to the story." Counsel for the Accused did not suggest
in
anyway that the witness had admitted the version. In the way the
story was put it could surely not have been expected that the witness
would reply usably without embarrassment and with ability to respond
to every aspect. The Accused's story was said to be:

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"That evening he got to Le Joint at about 8.00
accompanied by Mosifa (DW 2). They occupied a table and were later
joined by two
women namely Maseabata and Malibuso. They started
drinking bear. They were later joined by the deceased who stayed for
a short while
and then left. Deceased subsequently came back
accompanied by a man the Accused did not know. The deceased
introduced this man to
the Accused: "These are CIDs." The
man said he had not known that. He went further. "These are
unsophisticated informers
of CIDs (Ke meqhaka ea limpimpi tsa ma
CID). Accused reacted and said "How can you say that and yet you
know. Could it be you
who says this and yet you know." It was
thereupon that the deceased reacted furiously and said: "I shall
remove this remaining
testicle." Accused then warned Mosifa that
they should go now that the deceased has turned out to be that way.
Accused said
to Mosifa that he knew that the deceased had a tendency
to attack people unaware or by stealth. Mosifa stood up instantly and
followed
the Accused. Mosifa went in front and the Accused was
following him. The deceased there charged at the Accused wielding a
knife and
was just about to stab Accused. Thereupon Accused pulled
out a gun and shot in the general direction of the deceased. That is
why
the Accused shot the deceased at the front. This caused the
deceased to retreat. Accused then became free."

It is this story which the witness said he did not say
anything to. It was in response to this kind of a question that Mr.
Lenono
was about to re-examine clarifying some aspects in the above
statement when Mr. Nthethe objected. The objection was that the Crown
could not clarify over things which were not raised in the cross
examination I overruled the objection. The questions by Mr. Nthethe
had been

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globular and had not raised separate issues to enable
the witness to respond point by point. In the resulting
re-examination by Mr.
Lenono the witness reverted to and reiterated
every aspect of her version which was quite consistent with what she
said in her evidence-
in- chief.

The witness went on and admitted that it could be a
mistake that she said she did not know Mosifa (DW 2) it could rather
be that she
did not recall how long she know him. The witness was
adamant that according to her the Accused never quite sat down at the
table
despite that this was not in agreement with what other
witnesses said even at the PE stage for example PW 10 Makhojane
Mahase. One
discrepancy that was pointed out was that the witness did
not speak about the witness nor that they saw her. The witness
replied
that if they had known her they would have referred to having
seen her. The examples quoted (of those who did not refer to the
witness)
were Mathabo Seboko and Malebuso.

The witness reiterated that she heard certain swear
words. It is possible that more could have been said that she did not
hear such
as those suggested in the Accused's statement referred to
earlier elsewhere in this judgment. For instance words including
swear
words which were said to have been uttered by the deceased by
one Seutloali namely that deceased had said: "Let me buy you a
beer I have got a lot of money." And a statement attributed to
either Seutloali or Suping who is reported to have said that
deceased
said "Can you kill me having bought you beer."

I resorted to the submission by Crown Counsel that in
the conditions prevailing in that drinking place some words allegedly
uttered
by deceased could have been missed in the same way as those
allegedly uttered by the Accused. It was in the similar vein that the
witness could only say that she would not deny that the words about
"testicles" were uttered. Malebuso was reported to
have
said that she

17

heard the word testicles uttered when she entered the
toilet. As I observed it was unrealistic to expect the witnesses to
have heard
every word uttered. Nor could it even be fair to suspect
that she was untruthful if she could have made a mistake of not being
able
to recall all words in fact spoken.

It was put to the witness that the Accused then decided
to leave after words suggesting that he was unsophisticated and that
he had
one of his male organs missing. The witness did not admit
having heard those swear words come from the deceased or at all. She
however
was adamant that she was at that table despite denial or
absence of mention by other witnesses that she was present thereat. I
considered
it reasonable to accept the version of the witness as a
true one. She was an eye witness.

I detected no motive on the part of the witness to lie
on any aspect. None contained contradictions but disagreements or
discrepancies
on minor issues. The witness was not disturbed by the
cross examination. It could have been that the witness was in a
different room
from which her father was. It could have been that the
Accused did sit down at the table as other witnesses suggested. The
point
made that, since other witnesses did not mention seeing her and
that she does not recall other witnesses, she was then an untruthful
witness. This ignored the fact that her presence was mentioned by her
father. Others also did.

Another point was made. It was that if the Accused was
following after the deceased then the deceased must have been shot
from the
back. This she conceded. If this is the case the Accused
ought to explain why the deceased (who was allegedly attacking him
face
to face) was shot at the back. This is more so if capital is
made by the defence that the witness conceded that deceased was never
looking back and that if he ever did the witness could have noticed
him. Counsel argued that the

18

notion should be compared with the postmortem
examination report which stipulates that an open wound was through
the chest. It was
submitted that it was clear that if the witness
stuck to her guns she disputed the finding of the examining doctor.
It was suggested
that it was significant there was no exit wound. I
felt that the doctor would surely have answered to this if he had
been available.
I have already indicated how I viewed this witness'
testimony. It was that, except for minor discrepancies, it was highly
reliable.

Nthonyana Theko who became PW 6 was a woman of 39 years
at the time she testified before this Court. She had known the
deceased while
the witness was still staying at Mafeteng. She had
left Mafeteng in 1994. When she last saw the deceased they were at Le
Joint. She
had, before attending at Le Joint, asked her neighbour
Lisema (PW 2) to accompany her to a discotheque. It was at about 7.30
p.m.
when they went via Le Joint. I noted that PW 2 had said that he
met the witness on the way and that they got to Le Joint between
8.00
and 9.00 pm. PW 2 had not mentioned a discotheque as their
destination. She remembers having (found Mathabo, Seutloali and one
Thinyane amongst others at Le Joint.

Near the table at which the witness sat was the one at
which the Accused, the deceased and Martha (PW 5 ). Keketso, Malibuso
and Maseabata
sat. Defence Counsel called my attention to the
contrast with the testimony of Lephoto at PE stage and that of Martha
(PW 5) who
adamantly told the Court that the Accused did not sit at
their table but just came next to it. She forgot others that were
also there.
There was good visibility due to an electric lamp. There
was drinking of beer. The mood was noisy and cheerful. Most were
happy to
see her and made welcoming calls. She suddenly heard a noise
as if it was breaking of a glass and she looked back in the direction
where the sound came from. It was in the direction the Accused's
table. She said she turned back because their table was next to
the
wall.

19

After turning back she saw the deceased near the wall
having removed from their table. She had before that sound of a glass
breaking
heard the deceased say to the Accused "You are a
detective man." After that their conversation had continued. She
remembered
that after that she had seen the deceased go past her at
the back. She had even touched her. The witness said she heard the
Accused
say "Don't say I am a detective." It was after that
when she saw the Accused standing next to a wall and holding a gun
and pointing towards in a way she demonstrated. At about the same
time she saw the deceased near the door leading to the counter.

She had been looking the other way (away from the
deceased) at the time she heard the sound of a glass breaking. The
distance between
the deceased and the Accused had could been about
eight paces. She had paced to estimate. While the deceased was still
standing he
said: "Why do you shoot me man?" Accused did
not reply. The deceased then fell on his back (face up). In the
process of
doing so he even touched the witness with his foot. Then
the Accused was seen going out through the door. He had not said
anything.
There was a short silence after the sound. Some people then
rushed to the deceased to help him.

A vehicle had later arrived. Deceased was carried out
through the door. When asked if the deceased carried anything when
uttered the
words about someone having shot him the witness replied
that the deceased had not been carrying anything. The witness had
been in
Lejoint for about an hour. She was however not able to judge
if the Accused or the deceased had been drunk.

The witness was put to a most labourious type of cross
examination by Mr. Nthethe. It was not far from the truth that she
even shed
tears. It was never in doubt that only on a few things the
witness vacillated. One example was this that

20

was put to her that Lisema (PW 2) said he met her on the
way which she could not give a clear answer. What was important was
that
it had become common cause that both the witness and Lisema (PW
2) eventually got to Le Joint where they were together. Furthermore
that (as was suggested) they got to Le Joint at between 8.00 pm and
9.00 pm while the witness said it was around 7.00 pm. I formed
an
opinion that (as it is normal) witnesses will not estimate time and
space in the same way. Some can even be absurd. Therefore
the kind of
discrepancies cannot be elevated to contradictions. Even then, if
there be such contradictions, it will always be important
to
determine how serious they are or whether or not they discredit the
witness's testimony as to the truth of her observations.

It was correct that a rough sketch "Exhibit "A"
which was handed by Defence Counsel caused the witness to entirely
change some of the points thereon. It was as to where her table was
positioned as to where the deceased fell. I did not conclude
that it
was because her testimony was untruthful. The rough sketch had been
very useful to the Court in illustrating some of the
salient physical
features of the inside of Le Joint. The way the rough sketch was
drawn the major features were as follows:

There are two bars or drinking spaces adjacent to each
other and divided by a wall. One is on the east and the other on the
west.
Bar 1 is one the east and Bar 2 on the west. There is a main
road (Main South 1) on the south travelling from Maseru direction on
the North East towards Mohale's Hoek on the South West. There is one
exit/entrance on the south into/from the main road which leads
into
Bar 1. There is one exit/entrance on the north and an exit door
towards Jandrells door. There is a door leading from Bar 1 to
Bar 2.
On entry from Bar 1 one approaches to counter (selling point) which
is next to that door way the counter is on the side of
Bar 2 on the
East of Bar 2 and on the West of Bar 1. To the counter

21

one has to go through a door to gain access. From Bar 1
one has to go through an entry door through a dividing wall.

These points have been marked in Bar 2 one namely X1, X2
and X3. As will be clear from the sketch X3 is near the counter X2 is
farther
inside from the counter and X1 is near the wall diving the
two bars. It was about the position of X2 the table that the witness
was
said to have conceded that it was near the counter not towards
the inside as she had first steadfastly pleaded. Otherwise the points
remained established in this manner X1 was where the Accused was seen
and this was near the exit door X3 was nearer where the deceased
fell. It is noted that it is nearer the door leading into the counter
space to which the deceased was proceeding, where he fell.
The
Accused was able to go through the door facing Jandrells which is
near X1 and far from X3 nearer where the deceased fell. The
witness
could not agree that it was exactly at the point where the deceased
fell but it was near her at X2 but on the side of X3
viz. entry to
the counter.

The witness was taxed on the estimate to the different
distances. It was in making concessions more especially as to where
her table
was that she was said to have gone to pillar to post by
defence Counsel. Meaning that she was unreliable. I did not see it
that way.
The witness however admits that she did not see the Accused
shoot the deceased. Indeed she did not seem to know as much as others
about the circumstances which attended to the shooting prior to the
breaking of glass. It was common cause that the sound of breaking
glass signified the report of the gun. Indeed the witness was taxed
over an aspect of someone having urged ail to keep silent after
the
shooting and so on which was quite not consistent with what the
witness had said at the P.E. stage. This was inconsequential.

The witness was correctly recorded as having said that
the Accused stood

22

against the wail. She later said the Accused was
standing near the wall. She was led to admit that she originally said
the Accused
was leaning against the wall. Whether she could be
disbelieved on her part on one account and not the other it remained
a failure
to estimate the exact position of the deceased. But the
general direction or position of the Accused remained that of near
the wall
towards the door leading to Jandrells store. Why could she
be disbelieved completely and what would be the effect? There was
none
as long as she was not moved that the Accused was near the north
entry when the deceased had been moving towards the opposite
direction.
I concluded that there was nothing really that discredited
the witness as a witness to the truth. She withstood searching
cross-examination.
She was instead revealed as an honest witness. Her
tendency to want to be exact more especially when attracted towards
points on
the rough sketch resulted in longer cross examination whose
result was minor variations and certainly not contradictions of any
kind.

The Crown closed its evidence. The Accused put in his
own defence. He said that on the 18th August 1989 he was still an
officer of
the police service in the Criminal Investigation
Department. On the evening of that date they had been at Le Joint at
around 8.00
in the evening. He said they were in Bar 2 that is the
room that has an entry/exit facing Jandrells wherein he sat. He was
in the
company of Mosifa (DW 2).

They found two ladies Maseabata and Malibuso at one
table where they joined them. There they bought and shared beer. They
were joined
by Phallang Mosala (deceased) an ex police officer. They
drank together. He remembered that DW 2 had gone at one time off to
buy
some beer. When he came back he asked the deceased why he had
drunk someone's beer (in the other bar) without his consent. Deceased
replied to say that DW 2 was not supposed to ask him such a

23

question. The witness said he asked deceased why he
could not answer DW 2. He kept quite. They continued to enjoy their
beers.

Deceased left the table and went to the other bar. He
came back after a while. He was in company of another man whose name
the Accused
did not know. Deceased pointed at the Accused and asked
the man: "Do you know this unsophisticated fellow? (U tseba
moqhaka
oo?) The man answered that he did not know me. The deceased
proceeded and said: "They are some of the unsophisticated police
detectives. (Ke emeng ea meqhaka ea mafokisi). The Accused said to
the deceased that he was doing something that he knew he should
not
do that is, reveal the identity of Criminal Investigation Officers.
The deceased is reported to have answered: "Who are
you, you
without testicles. I will remove the other one." Accused said he
urged DW 2 that they must immediately go because he
knew that when
deceased was in that mood he would get into a fight or assault one
without notice. Accused stood up. DW 2 proceeded
toward the door to
Bar 2 to the door on the north. The witness was going behind DW 2.

The witness said he had not gone any far from his table
when the deceased charged at him with a knife in his right hand. He
said he
took out his gun and shot in the general direction and the
deceased retreated. He then went out of the bar straight to the
charge
office. Deceased was still on his feet when the Accused left.
He had not uttered a word.

At the charge office he found W/O Sekoala (PW 4) and
other police officers. He reported the incident in the same way as he
had done.
Sekoala hastily sent him off saying he must go and report
to his CID superiors. He had just gone out of the gate when Sekoala
called
him back and asked him where the gun was. He took out the gun
and handed it over to Sekoala to take for safe-keeping until the
following

24

day. He went back later to look for Capt. Chobisa who
was in charge of the CID but did not find him. He then went to his
home and
slept until the following day.

On the following day Capt. Chobisa came to his house and
sought for an explanation. The Accused had intended to attend at work
at
about 10.30 a.m. Then Sgt Mosifa (DW 2) came and told the witness
that he had been sent by Captain Mokhohlane. He intended to follow
DW2 but went later. Then he met Captain Mokhohlane who was with
Captain Chobisa (PW 3) and another. He was instructed by Capt
Mokhohlane
to wait. It had not been clear whether it was the witness
who was asked to carry on with his own work or the person on whom the
Accused
attended. In any event Capt. Mokhohlane asked the Accused
whether he knew where the man he had shot was. He was then told he
had
passed away. But he (the witness) was charged assault with
intention to do grievous bodily harm. He was released from work and
ordered
to report on the following day. At that time he was with DW 2
with whom he consulted or sought advise about what he should do. I
noted that at that time it had not been clear that DW 2 was playing
any role except that of a close colleague or co-worker of Accused.

On the following day the Accused was finger-printed and
told to report at work on the next day. On the 24th August 1989 which
must
have been that "day following" Accused was taken for
formal remand at the magistrate's Court. Thereupon he was released
on
his own recognisance. After two or three days DW 2 came to Accused
and told him that the magistrate wanted to see him. He duly
attended
at the magistrate court whereupon he was remanded on a charge of
murder of the deceased who had already passed away. The
Accused was
taken into custody. He was then transferred to Mohale's Hoek prison.
He was later released on bail after an application
before the High
Court.

25

Accused denied that he intended to kill the deceased in
cold blood. He said it was the deceased who charged at him. Deceased
was too
close when he shot him. He only shot in the ground direction
of where the deceased was. He denied the suggestion that at the time
of the shooting the deceased had been moving towards the counter and
that it was the Accused who left his table and followed deceased
who
he shot. He was shown the rough sketch and was shown the three
points, where PW 6 had allegedly sat and where the deceased had
fallen and where he Accused was allegedly positioned at the time of
the shooting near the wall. These he did not accept as truthful
or
accurate. Accused denied however having seen Lisema (PW 2). He
admitted that Martha (PW 5) had been there with her father.

That version of the deceased elicited a brief kind of
cross examination by Mr. Lenono as it should have. I presumed it had
to do with
the large area of facts already covered and agreed on
including the admission by the Accused that he shot the fatal bullet.
What
would remain would be whether in law he shot in self defence and
whether the facts indicated so. Accused was with the deceased and
others at Le Joint. He admitted that insulting words were uttered by
the deceased about his testicles. Accused said he still had
both his
testicles. When asked how he took the insulting words he said he was
not happy but he did not wish to fight. He said despite
the swear
words he would have still wanted to leave because of the anger. He
reiterated that it was the deceased who followed him
and Mosifa (DW
2) when they were going towards the door on the side of Jandrells.

When cross examined further he admitted that by the
general direction at which he shot it was at the place where the
deceased was
positioned. Then the deceased staggered back on to the
wall against which he leant. The Accused then went away. At that time
it was
showing that the deceased had been hit. He did not know the
part of the body at which he was hit. But he agreed that it could be
above

26

the waist.

The Accused spoke of the way the Accused had held his
knife which he demonstrated. This was the way close to the waist but
not raised
up. But it was in such a way that the blade was exposed
when he deceased had ben about a pace away from the Accused. He
denied that
Accused could have been eight paces away from the witness
when he was shot. He said the deceased was so close to him that he
could
not even have time to fire a warning shot. He had had no way
other than to have warded off deceased's attack by shooting at him.
In reply to the Gentleman Assessor's question he said the deceased
could have been four paces at , the time of he shot.

Accused did not shout out in order to raise alarm nor
did he exclaim in any way about the alleged attack on him. He did not
remember
that he told Mosifa (DW2) about the aspect of the knife
after the day of the incident. He denied that there could have not
been any
object found near where the deceased's body was after he
fell except blood. He said a knife should have been found there.
Mosifa
(DW 2) had said he saw the knife there. He said so on the
following day. Accused was confronted with the suggestion that
Lechesa
had not said he saw the knife either. He had only seen blood
on the floor. He said it must have been a mistake.

I found this Accused a highly intelligent man who
testified in Court in good English. I however found it difficult to
understand why
the Accused took the position that he was not severely
provoked by the deceased. Why did he persist to say that, in the face
of insulting
words, swearwords directed at him which were put in
different versions, he was not provoked but just went away as he said
he ultimately
decided, because he knew how the deceased would later
behave? That there was swear words were exchanged and mainly directed
at the
Accused there

27

was overwhelming evidence. That is why I concluded that
it was only through naievete that the Accused pretended before Court
that
he could not have been provoked at all. He had admittedly had a
few drinks although not drunk. That he could have been a little drunk
could not be completely ruled out although the Accused seemed to
assert the opposite.

The Accused said he decided to leave because he knew
that the deceased was the kind of person who would attack by stealth.
That may
have been so only to the extent of the mood at which the
deceased may have been due to drunkness or other causes. Mind you the
deceased
was said to have been warned or questioned as to why he had
taken one man's drink from the other bar. I say that it may have been
that the Accused was a good judge of the mood at which the deceased
was as it appears they knew each other well as former colleagues.
The
deceased may well have been on the verge of making out an attack. But
the evidence was overwhelming that the deceased did not
attack the
Accused and the deceased had in fact been on his way towards the
counter when he was shot at by the Accused.

The Accused did not suggest a motive why most of the
witnesses except Mosifa (DW 2) did actually see the Accused shoot at
the deceased.
Or alternatively why most witnesses (except DW 2)
described circumstances suggesting that it was the Accused who
attacked the deceased
by shooting at him not in any self-defence of
any kind. Again it was not suggested why no other witnesses ever
suggested seeing the
deceased wielding a knife in attack nor seeing
the knife except DW 2 who said he saw a knife lying next to where the
deceased had
fallen. I concluded that the Accused version could not
be believed and it was false beyond a reasonable doubt.

The evidence was overwhelming that the deceased had
walked towards the

28

counter and the evidence went on to suggest that the
Accused stood up and pointed a firearm in the direction of the
deceased and fired
whereupon the deceased fell down. After so firing
the deceased left through the door on the north. In answer to one
Gentlemen Assessor
the Accused said that he "did not want to
shoot in the air but pointed the gun at him."

The deceased fell near the door leading into the counter
or sales point. One witness said the Accused was said to have stood
near
or leaned against the wall closer to the door on the north, this
is the door he used after shooting. It was against all probabilities
that the deceased could fall near the space leading to the counter if
he was charging against the Accused who had been near the north
door
which was diagonally on the opposite side with a considerable
distance in between. See points X3 and X1 on the rough sketch.
The
story of the retreating by the deceased advanced by the deceased was
far fetched. The distance between the two points suggested
that even
if the deceased had wielded the knife (which is not to be believed)
the Accused had a way of avoiding the attack by running
away or
firing a warning shot but certainly not the instant shooting which
was definitely not in response to an attack from the deceased.
The
Accused version cannot be believed. It was most probable that
following the provocation by the deceased the Accused made up his
mind to shoot the deceased in an open attack as the Crown's credible
evidence indicated. The attack by the Accused could not have
been in
self-defence. His story was palpably false beyond a reasonable doubt.

DW 2 Andreas Mosifa testified in defence of the Accused.
As said before he had been PW 12 at the PE stage but had not before
this
Court been called for the Crown. He had been subpoenaed. He did
not know why the Crown did not ask for his testimony. DW 2 said he
was now living in Quthing, after having retired, at this time he was
called to testify before this Court. He was not employed.

29

The witness knew both the Accused and the deceased well.
He had worked with both of them in Mafeteng at different times. At
the material
time the deceased was no longer a policeman. The witness
remembered the events of the day of the 18th August 1989 when Mosala
(deceased)
met his death. He was at Le Joint on that day and there he
was with Accused, deceased, another gentlemen and two ladies. They
had
been drinking together. And it was at or about 8.00 in the early
evening. He had been from his home to his office but had just gone
via Le Joint.

He acknowledged that Le Joint has two drinking bars.
There is one whose entry was on the South from the highway to
Mohale's Hoek.
There was another exit into the space leading to
Jandrells shop. He also saw one Liphoto who had since died. He was in
another bar
(Bar 1). The witness knew Martha (PW5) since when she was
very young in Qacha's Nek, where the witness had worked. Martha was
in
Bar 2 with the witness.

The witness had had occasion to visit the other bar. It
was there where he learned from another man that the deceased had
taken his
drink without his permission. The witness thereupon asked
the deceased about this allegation. To this the deceased did not give
a
reply. It was a little later that the deceased asked one man if he
knew "these detectives informers". He was referring
to the
witness and the Accused. The Accused then responded:

"Is it you of all who can say this in the presence
of people?" Then the deceased is said to have responded:

"Are you here you who has no testicles? I will stab
you and take off the other one."

30

'The Accused then immediately asked the witness that
they must leave. They stood up to go and had just passed the deceased
when he
heard gun shot. When he moved back he saw deceased had fallen
down. He said he did not see the Accused at that time that he
concentrated
on assisting the deceased. It was then that a word was
heard calling out loudly that the deceased should be left where he
was. The
witness did not say that it was the same voice that had
called out to all those in the bar to remain where they were.

Where the deceased lied he had fallen his face upwards.
There was a wound on the chest. There was blood on the chest. One
Lechesa
(PW 2 at the PE) also came. Lechesa had been the witness'
junior officer at work. It was after looking over the fallen deceased
that
the witness got an opportunity to look for a vehicle to carry
off the deceased. The witness said before he went there was something
that he had noticed. It was a brown Okapi knife. The knife was in the
hand of the deceased. He took the knife and instructed Lechesa
to
take possession of the knife, as part of his duty. A vehicle was
procured. Deceased was taken on a vehicle by the witness and
Lechesa.
He was still alive. He was left at Mafeteng Hospital. The deceased
had been groaning but still alive. The witness thereafter
went to his
office at the police station.

The witness later accompanied the deceased to Maseru
Queen Elizabeth II Hospital to which he was transferred. He was still
alive and
had not sustained any further injuries. He passed away a
few days later, on or around the following Wednesday. The witness
said he
asked Lechesa where the knife was. His answer was that he had
not known what he did with the knife. In his evidence in chief the
witness was asked why he had not spoken about a knife to the
prosecutor at the P.E. stage. He said he was prevented from talking
about the knife by the prosecutor. The witness said he had intended
to refer to the knife. I found this hard to believe

31

unless the prosecutor could have been said to have had a
motive. None was suggested.

Under cross examination the witness said that he knew
that the deceased died at another hospital but not in Mafeteng.
Deceased had
not replied when asked why he drunk another person's
beer. He did not reply. When referred to any swear­words that the
Accused
could have made towards the witness denied that there could
have been any except those he had spelt out. These could have been
drowned
by the noise in the bar. There was also a group of card
players in the bar adding to the noise. Other people could have or
could
not have heard any exchange of swear words. Those who were
listening would have heard the words. He would however not confirm
anything
about words he did not hear himself..

The witness was asked as to why he only referred to the
incident of the knife after he said he went to the hospital with the
deceased.
He said he was still going to speak about it. Even at the
P.E. stage he had not spoken about the knife. He said at the Charge
Office
he made a statement. It was not a written one. He was referred
to the statement that Lechesa did either not also speak about the
knife at the P.E. stage. He was also surprised that he did not do.
The witness could not offer any other explanation. He said he
was the
one who showed Lechesa the knife and instructed him to retain the
knife. In reply to one Gentleman Assessor's question he
agreed did
not make note the knife in the occurrence book. He did say however
that he recorded this in his note book which he had
left at home just
when he was coming to Court. He said he was sure that the knife
should have been seen by people who attended on
the deceased. Lechesa
was one of those people.

Following on that line of questioning by one Gentleman
Assessor about the knife I ordered the witness to bring the notebook
on the
next day when the Court

32

resumed. He had assured the Court that he had not only
known it to be in his household but he had seen it even at around the
time
when he was preparing to come to Court but had forgotten it. I
was not certain if he said he saw it on one of the days when he had
come to Court or on the very same day when he was in the witness box.
When he next came into the witness box he reported that the
notebook
was nowhere to be found.

A clear impression was created by the witness that he
would not be forthcoming and he intended to protect the Accused. He
had been
one of the investigating officers. He was the Accused's
senior at work. He failed to follow on to inquire about the
whereabouts of
the knife if ever there was one. If he did it was not
convincing. He had no written statement that referred to the knife.
He did
not speak about the knife even at the P.E. for that flimsy
reason about the prosecutor's attitude.

Then about the note book I concluded that the witness
could not have promised that he would fetch the notebook if it did
not exist.
He had been so positive. The probability was that the
notebook was found but it did not contain what he thought was
favourable to
his prior testimony or what was alleged to have been
its contents. Mr. Mosifa was a dishonestly unreliable witness who
survived on
poor reasoning throughout his testimony given the
responsibility that he had had. He lied to protect the Accused.

I have already spoken about the improbability that the
Accused could have been a pace or two or even four from the deceased
at the
time of the shooting. PW 2 said deceased walked about seven
paces and stood at the entrance into the other side of the counter.
PW
5 said the deceased stood up and went to the counter seven paces
off when the Accused followed him. PW6 said from the moment deceased

33

stood it could be about eight paces (which were paced
off). I did not find that the witnesses had any motive for
fabricating. In none
of the witnesses of the Crown and police
officers had the Accused made a suggestion that he shot in response
to an attack of a knife
from the deceased. For what good reason would
about six witnesses eschew reference to the aspect of the knife which
thing was favourable
to the Accused? The Crown referred to the
following to show that the scenario pointed by the defence could be
nothing else but intriguing.

Pw 2 said he did not the deceased carrying anything. At
the time he was removed from the where he had fallen the witness had
not noticed
anything which was left there. PW 5 on being told of the
Accused's version that he had no alternative faced with an attack
with a
knife, he pulled out a gun and shot in the general direction
of the deceased causing injury on the deceased on the front. She
replied:

I have no comment because I never saw deceased holding a
knife."

PW 6 said he observed nothing from the spot where
deceased fell besides his blood and that:

"Deceased was not carrying anything when he was
shot."

As I remarked much earlier in the judgment the Accused
never disclosed to his superiors the matter of the alleged attack
upon him
by deceased with a knife. In addition and most specifically
I did not record that even as to PW 3 there was disclosure by Accused
of the alleged attack upon him with a knife by the deceased. As to PW
4 it was merely reported by Accused that they had quarrelled
with the
deceased and shot him. He never alleged that the deceased had been
wielding a

34

knife in an attack upon him.

The following summary of the reasons behind the Crown's
submission negated the Accused story of the deceased having lunged at
him
with an open knife. It led me to an irresistible conclusion that
the Accused's story was fanciful, improbable and an incredible
pigmentation
of the Accused's own imagination. In consequence I
formed an opinion that the proposed defence of self-defence did not
hold water.

Firstly, when the Accused shot the deceased he was at
least seven paces away from him and so close that a knife wielding
hand was
descending on him. Secondly if that knife existed was so big
and clearly visible to all as he said everybody in the house other
than
Mosifa could have seen it. Thirdly Accused did not seize the
knife after thwacking the imminent danger it posed to his life.
Otherwise
there should have been a demonstrable way in which the
Accused should have reacted during investigations to show that the
knife had
a place in these investigations or his defence. Thirdly
after deceased had fallen no one saw the knife near him or in his
hand. On
the contrary witnesses were vehement that the deceased was
not carrying anything when he was shot. I have already commented
about
the evidence of Mosifa (DW 2) which I concluded was untruthful
in this respect. Fourthly, Accused never utter single cry or noise
in
alarm or by way of remarking when he saw that the deceased was about
to stab him with a knife. This he admitted under cross examination.
Sixthly, the Accused had not told a single one of his superiors or
colleagues the reason why he shot deceased after the incident
except
that they had quarrelled as he briefly reported to one of them.

The facts of the case showed that there could not have
been any legal intoxication nor serious drunkness that led to the
attack by
the Accused on the

35

deceased. He was not acting in self- defence. As was
submitted by the Crown and as I did conclude when the evidence was
viewed in
its totality, Crown witnesses had been truthful, frank and
objective while accused and his witness had been discredited as
having
lied on major issues touching on the proposed defence. For
example for DW 2, a senior policeman to have suggested to the Court
that
he was prevented at the P.E. by the public prosecutor from
disclosing the full facts of the knife bordered on the ludicrous. It
was
correctly defined as a show piece of bias, dishonesty and
untruthfulness by the Crown.

I did not see how, from the totality of the evidence
given, Accused could even be entitled to any benefit of doubt nor how
his story
might reasonably possibly be true. I was referred to S v
JAFFER 1988(2) SA 84 to show that the Accused had in that regard
nothing
to prove. That furthermore the Court was not entitled to
convict merely because the Accused story was improbable. The Court
must
be satisfied not only that it was improbable but that beyond any
doubt it was false. See R v DIFFORD 1937 AD at 389-90, R v MONYAKO
CRI/T/7/75 at p.6. On the benefit of doubt it was said in R v MLAMBO
1957 (4) SA 728 at 738 that:

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

The facts of the case have overwhelmingly excluded any
benefit of doubt. Barring for minor discrepancies I did not think it
entitled
the Court to accept a version of the Accused which was false
beyond a reasonable doubt. It followed therefore that I did not agree
that the Crown had failed to prove its case beyond a reasonable

36

doubt. Neither did I agree that it had failed to
establish the guilt of the Accused. The instant case was certainly
not a case where
witnesses were so "shamefully shattered beyond
redemption" under cross examination. Nor nowhere it mattered not
what lies
the Accused told because the Crown case "had not been
advanced an iota." See MONYAKO'S case. There was nothing hearing
that Secondly, I could not accept that the witnesses for the Crown
were most unimpressive in the witness box. That they were evasive
and
downright stubborn and refused to answer questions. Neither would
they be described as having pretended to be of stupid. I was
referred
by defence Counsel in that regard to R v MALEFETSANE BELEME
(CRI/T/14/90 page 5. I would not compare this description (of
pretending to be stupid) to PW 6 despite the cross examination that
she went through which was described as gruelling.

I have already made a finding on the facts that it
cannot be said that the Accused acted in self defence. The onus of
negativing self
defence will always lie squarely with the Crown. See
R v MOLEKO 1955(2) SA 401 AD. It could not to the Accused (in any
demonstrable
way) that there was a threat of or assault committed on
him, either by word or deed of immediate violence which led the
Accused believed
that the deceased or his companions had the power to
carry out that threat. See CRIMINAL PROCEDURE THROUGH CASES, M. P.
Mofokeng
J p. 38. I have found that the knowledge that the deceased
had a propensity to assault others was certainly much less than the
requirement
that the deceased must have committed assault accept for
that there was a threat of any kind perceived on the part of the
Accused
and that any act led the Accused to believe that the deceased
had the power to carry the "deed threatened."

I could therefore not speak of the Accused acting within
the bounds of self defence and I did not conclude that there was not
even
a threatened deed. See R

37

v PATEL, 1959(3) SA 121. I could not accordingly speak
of "a reasonable possibility on the evidence" which
Watermeyer CJ
spoke about in R v ATTWOOD, 1946 AD 331 at page 35
which entitles an acquittal on the ground that one was acting in self
defence.
Instead it was beyond a reasonable doubt proved that the
Accused could not have acted in self defence. Unless one had to
accept that
any fanciful defence or speculative proposition would
stand the test. At the risk of repeating any or all of this following
consideration
it must appear fully on the evidence that there had
been an unlawful attack and there had been reasonable ground for
thinking that
an accused was in danger of death or serious injury.
Secondly that the means of self-defence used were the only or least
dangerous
means which he would have avoided the danger. Most of these
considerations are premised on there having been an initial attack
sought
to be repulsed. The Accused need not be the initial aggressor.
The facts did not bear this

out. I was driven to an inescapable conclusion that
there was no degree of self-defence on the part of the Accused.

I have considered the otherwise helpful submission by
Mr. Nthethe for the defence that warned against the Court adopting at
the position
of an armchair critic by not taking into account the
exigencies of the occasion as was advised against in R v PATEL
(supra). This
useful dictum by Van den Heever JA in R v ZIKALALA 1953
(2) SA 568 AD as approved from Gardener and Landsdowne CRIMINAL LAW
AND PROCEDURE
would equally be applicable. It said:

"When a man can save himself by flight, he should
flee rather than kill his assailant. But no one can be expected to
take flight
to avoid an attack, if flight does not afford him a safe
way to escape. A man is not bound to expose himself to the risk of a
stab
in the back which by killing his assailant he can secure his own
safety."

38

Such were not the facts. I found that the assault could
not be justified on the ground of self-defence. The Crown had
successfully
negatived self-defence beyond a reasonable doubt. The
Accused was not entitled to an acquittal.

I turned then to the last point of law raised by the
defence. Starting from when the point was unrefined. It was that
there was:

" no evidence excluding the possibility of novus
actus interveniens

by the treatment of the deceased received at the said
hospital what then purports to be the cause of death becomes
speculative because
no account is taken of what took place at the
hospital and once that happens it simply means that the Crown has not
discharged its
onus." (My underlining) quoted from R v SEKATI
1980 (1) LLR 213 at page 220.

The legal position of the principle was extensively
considered and authoritatively stated in that rather outstanding
piece of a guiding
precedent. Reduced to simplicity the principle
means that if the Court is not told of the treatment that a deceased
person (who died
in hospital or clinic) received at that institution
after having been received from injuries and subsequently died the
possibility
that something else other than the injuries caused his
death has not been excluded. And the onus was on the Crown.

The place of novus actus interveniens in our criminal
law had been considered before R v SEKATI (supra). It was in the
Court of Appeal
case of POTSELANE RAMETSE v REX 1967-70 LLR at page
70 where Roper JP said:

"It is difficult and perhaps impossible to
formulate any satisfactory test

39

as to when it can be said that the cause of death was
not the original
injury but the subsequent treatment ".

The learned Judge President then stated most competently
at page 80B:

"An accused person who has inflicted injuries or
other is not entitled to expect his victim shall receive medical
attention and
if the victim has received normal medical attention, or
such attention as is normally available he is not entitled to escape
responsibility
for the victim's death if that attention is
unsuccessful in saving the victim's life."

The central basis was well laid for an otherwise elusive
concept. Indeed Mofokeng J in R v SEKATI (supra) has laid out nine
(9) scenarios
in which the problem had presented itself in our courts
which were distilled into four situations of how the legal position
in Lesotho
was. Mr. Lenono suggested that the appropriate one would
be (1) at page 219 where:

"Y received treatment either at a clinic or at a
hospital and he subsequently dies. In such a case there must be
evidence as
to the nature of the treatment received in order to
exclude the possibility of

I suggested to Mr. Nthethe that one can clearly speak of
the operation on the deceased, which was unsuccessful, as the
treatment that
was received by the deceased when he was put into
Queen Elizabeth II Hospital. Mr. Nthethe then in turn in the refined
in the point
said that the doctor had "not sufficiently"
stated the treatment received. I questioned whether it had to be in a
laymen's
language

40

. devoid of the medical jargon to have been sufficiently
stated. If it had to be so then too few of doctors reports would pass
muster.
And then there would reign a situation where the
administration of justice would suffer or be sacrificed. I thought
the explanation
of the treatment, as shown in the doctor's report
quoted much earlier in this judgment, was sufficient for the
requirement that the
medical treatment given must be indicated. This
point ended up having no merit.

I finally considered that the Accused was found guilty
as charged with dolus indirectus in the killing of Phallang Mosala
who died
on the 20th August 1989.

My assessors agreed.

T. Monapathi
Judge

For the Crown : Mr. Lenono
For the Accused : Mr.
Nthethe