CRI/T/200/2002

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

VS

THELLE
TUTUBALA

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 28 May 2004

The
accused is charged with the crime of murder in that upon or about the
22nd August 2001 and at or near Ha Makh'ona Bokong in
the district of
Thaba-Tseka, he, the said accused killed 'MAKENEUOE TUTUBALA and did
thereby commit the crime aforesaid. He pleaded
not guilty to the
charge and the crown proceeded to lead the evidence of four
witnesses. At the close of the crown case the accused
also gave
evidence in his defence.

Of the
crown witnesses, the evidence of PW2, 'MAKHAUTA SHAMPENE was formal.
She is the witness who identified the deceased 'MAKENEUOE
TUTUBALA
(herein after referred to only as deceased) before the doctor who
performed the post-mortem examination on her. Her (Pw.2's)

cross-examination was merely perfunctory. Her evidence need not
detain me further.

The crown
opened its case with the evidence of No.8090 Trooper MOREMOHOLO
(Pw1). He is a member of the Lesotho Mounted Police Service
stationed
at Bokong in the Thaba-Tseka district. He was still stationed there
at the material time. He testifies that on the evening
of the 22nd
August 2001 while he was on duty the accused arrived. He (accused)
was carrying what the witness described as a "Rambo"
knife.
I saw the knife when it was handed in as exhibit. It is what is
usually regarded as a hunting knife. It is a sturdy weapon
whose
blade is made of stainless steel, clearly meant for tough situations.
This knife was handed over to the police by the accused
who there and
then surrendered himself.

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The
following day, the 23rd August the witness proceeded to Ha MAKH'ONA,
the home of the deceased. In the usual Sesotho manner he
reported
first to the chief and they then proceeded together to the homestead
of the deceased. On entering one of the houses they
were confronted
with clothes scattered about in the house. The clothes were soaked in
blood. I pause to observe that scattered
clothes immediately suggest
to me some sort of scuffle having taken place in the house. This
impression is reinforced by a question
in cross-examination by Mr.
Mokoko as to whether the witness found clothes in the house where one
would not expect to find them.
The witness answered that, that was
correct.

In the
house were also found a marble and a sheath. The marble does not seem
to have had any further significance. The deceased
was not in the
house any more, it being reported that she had transferred to HLOTSE.
The items found in the house were seized.
In Court the witness
produced as exhibits, the knife and sheath only, and they were marked
respectively Exhibits "1"
and "2".
Cross-examination of this witness did not elicit anything more
significant than what he testified to.

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The next
and most important witness for the crown was 'MAKOENA ANACLETTA
PELEHA (PW3) she testified that she knew both the accused
and the
deceased well. They lived in the same village with the deceased
whereas accused lived in a neighbouring one.

On the
22nd August at about three o'clock she went to the home of the
deceased for the purpose of borrowing some sugar. She says
she found
the deceased and the accused sitting together on a bed. On her
arrival the deceased requested her to prepare some jelly
for her and
she was happy to oblige. In preparation she started boiling water on
a paraffin stove. The deceased for her part started
to stand up to
fetch a basin from another house. The accused, according to the
witness would not allow the deceased to go out.
He pulled her back
down to the bed. He repeated this on her second attempt to stand. She
was only able to stand and go at the third
attempt. The accused then
also stood up and followed the deceased out. She remained behind in
the rondavel where she was to be
for about the next thirty minutes
until she decided to go out.

As she
was outside, she was called from the house into which the deceased
and

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accused
had apparently gone. There she found accused holding the deceased by
the waist trying to pull her out of the house. The
deceased asked the
witness to intervene and ask the accused where he was taking her to.
This witness says she did. The accused
then asked who the jelly was
being prepared for, a question which the witness said the accused was
in the best position to answer
as he and not she, was staying with
the deceased.

The
accused then let go of the deceased and went into another room
leaving the deceased in the room where they had been, which was

apparently used as a kitchen. The witness went out. This was to be
the first occasion for this witness to see the two scuffling.

The
second occasion according to her arose when after about fifteen
minutes of her going she heard the deceased calling out: "I
am
dying, 'Makoena!" She went back to the house and tried to gain
entry into it only to find the door locked. She stood there
for some
time until the accused opened the door for her. She says when she
went in, she found the accused pinning the deceased
to the ground and
stabbing her with a knife. I pause here to consider the likelihood of

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this
scenario. If the witness had been standing at the door in response to
the deceased's urgent call that she was dying, she must
have entered
immediately when the door was opened for her by the accused. How
could she then have found the accused already pinning
the deceased to
the ground and stabbing her with a knife? The scene is described by
the witness as having happened without so much
as a preceding
struggle after the accused had been to the door. I find this most
unlikely.

To
proceed with her story the witness says, in the position she
described she saw the deceased stabbed once. She tried to get hold
of
the accused who then stood up and hold her in turn, pointing a knife
at her. He then pulled her into another room. The accused
then
returned to the deceased and stabbed her three times. She observed
this from the door way of the room into which she had been
pulled.
Nothing is said of the deceased ever having arisen from the ground
where she had been pinned. Nothing is mentioned of any
attempt by the
deceased at self-preservation. The impression is created that from
the time the witness entered the house the deceased
lay prostrate on
the floor without even so much as a feeble struggle, waiting for the
accused to return to stab her after

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he had
stood up to push the witness into another room.

The
observations of this witness are rendered doubtful by a member of
other factors. She, herself says that the events took place
a long
time ago and it was admidst a confusion that frightened her. Thus she
freely admits that she may have forgotten some things
that happened.
Thus on being asked by the court to clarify exactly what happened
upon her entry she cannot re-call precisely whether
she saw the
accused pinning the deceased to the floor and stabbing her or whether
he had stood there, knife in hand before rushing
at the deceased,
something which if it happened, seems more likely in my view.

The final
leg of this witness's description of the events in that house is that
after she had been stabbed thrice the deceased asked
the accused why
he was killing her. The accused answered that deceased had been
finishing him for a long time. He then went out
locking the witness
and the deceased in the house as he did. It is said that as he was
leaving he told the witness to fetch deceased's
key from the shop.
The witness tried to convey an ever so slight implication here that
there was a sinister motive in locking them
in there- that of leaving
to their

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own
devices an injured deceased in the house with the witness. I don't
think so. This was a self-locking key that can be opened
from the
inside and the accused knew they could let themselves out. This is
exactly what the witness did after she was initially
a bit confused
and then remembered that this was the position. My own impression was
that of a person who was in a great hurry
to go and report what had
happened. This witness actually says she saw him across the river
running.

After
this the witness raised the usual alarm and the deceased was
subsequently taken away to hospital. She was at this stage still

alive because she died the following day, the 23rd August 2001 after
an operation to try and save her.

A
post-mortem examination was performed on the deceased. Dr FASO (Pw4)
who performed the examination was of opinion that death was
due to
haemorrhage caused by the rapture of the spleen, liver and stomach.
He had observed that the deceased was a well nourished
young lady who
had sustained multiple stab wounds to the body and arms. He listed
such injuries as two stab wounds on the back,
three on the right
hypochodrium, two on the left

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hypochodrium
and one on the left flank and finally three on the right elbow. These
injuries penetrated the stomach, the spleen and
the liver, the latter
of which the doctor said are rich in blood supply. I have no reason
therefore to quarrel with the doctor's
conclusion that death was due
to haemorrhage.

The
accused gave evidence in his defence . His story is somewhat
different from that of the one eye witness PW3 especially in the
most
important aspects of what really transpired in the house which
actually led to the injuries that led to the ultimate demise
of the
deceased. He agrees that PW3 found him and the deceased in a rondavel
at the latter's homestead where they cohabited. They
had no so long
ago arrived from a shop where they had been drinking "BlackLabel"
beer since eight o'clock in the morning
up to about one o'clock.
There is no agreement as to what happened after the usual greetings.
Whereas PW1 says they were talking
happily as she entered although
she never heard what their conversation was about, accused however
says there had already started
an altercation between himself and the
deceased over the latter's love affair with a certain SARIELE PELEHA.
They had kept quite
in order not to let in PW3

on this
kind of conversation as accused considered PW3 a child who was not

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supposed
to hear such things. According to him the deceased had been quite
hostile in her response to accused's jealous accusations;
in fact as
PW3 entered she had just hurled an expletive about accused's mother!
He says on being asked PW3 said she had come visiting.
He thereupon
left the deceased with her visitor and stayed outside for a while
before proceeding to another of the houses described
as a "flat".
He sat down on a chair and was shortly followed in by the deceased
who immediately proceeded to an inner
room. She returned with her
hands behind her. When asked by the accused what the matter was the
deceased is said to have said "Your
mother's vagina, I will show
you who is older, " or words to that effect.

I pause
here again to point out that accused says it is at this stage that a
struggle ensued between him and the deceased. It is
in contrast with
PW3's evidence that the altercation took place in two stages. The one
was when according to her she had been called
by PW3 to witness
accused who was trying to pull deceased out of the house. According
to her no injuries resulted from this altercation
as accused finally
let go of the deceased and went into the bedroom (the inner room I
referred to earlier). The second had been
when she entered after
again being

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called by
the deceased who said she was dying and the witness had found her
lying on the floor.

To round
off the accused's story we come now to its most crucial aspects. He
says when the deceased emerged from the bedroom with
her hands behind
her. He stood up to see whether he was going to the door or coming to
him. She did not go to the door but rushed
at him. He then threw a
jacket which he was wearing in one sleeve at her. As she warded off
the jacket there appeared a knife.
He was able to get behind her and
hold her around the abdomen. The hold encompassed the arm that was
holding the knife. A struggle
for possession of the knife then ensued
which according to the accused lasted for quite some time, during
which he realized that
the deceased had been injured. He was finally
able to dispossess the deceased of the knife. He then shoved her
aside and stood
next to her. She rushed him once again, whereupon she
was pushed back with the hand that held the knife. She then slumped
to the
floor. He then went to open the door and called PW3. She came
and peeped through the door.

He asked
her to stay with the person whom he said he had stabbed with a knife.

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She came
in and he immediately went out still carrying the knife. He went to
fetch PW3's child, then placed it at the door and immediately
left to
go and report at the police station.

The
aspect about the child being fetched and placed at the door after the
whole incident was not mentioned by PW3 in her evidence
in chief but
was elicited under cross-examination. It seems to me that the child
who must have been quite small if it had to be
fetched, must have
been in some distress under those circumstances and the accused took
pity upon it. For PW3 not to find it important
enough to make the
child a factor in the events of that day, does not, in my view
reflect too well upon her. One is tempted to
call in question her
recollection of the events of that day, or at the worst to want to
put the accused in the worst possible light
by not revealing any
conduct on his part that might be considered redeeming. Either way
this saps the credibility of PW3.

It is not
easy to resolve the differences between the testimonies between PW3
and the accused. It has however been held that the
proper approach
when the court is faced with two conflicting stories is that:

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"The court [has] to be satisfied on adequate grounds that the
story of the party on whom the onus rests was true and the other

false (see Johnson Hlakametsa v R CRI/A/61/69 unreported)." Per
Mofokeng J. in MOSHESHA V R 1976 LLR 47 at 51.

Mofokeng
J. in the Moshesha case relied on R v Soagale where Barry J. P

held as
follows:-

" There are two conflicting stories and before the onus placed
on the Crown is discharged, the court must be satisfied that
the
story on whom the onus rests is true and the other false." R v
SEGOALE 1947 (2) SA 641(T) at 645.

It will
be observed that Mofokeng J in Moshesha case had to add that there
have to be "adequate grounds" that the story
of the party
bearing the onus is true. That is so because the test is not simply,
whether the one story is true and the other false
or not. The
ultimate test in a criminal case is whether or not the story of the
accused is reasonably possibly true . The only
relevance of a
witness's or witnesses' stories vis a vis that of the accused is
whether they contain facts which can demonstrate
conclusively that
the story of the accused cannot reasonably possibly be substantially
true. It was laid down as follows by Davis

AJA in R
v M 1946 AD 1023 at 1027.

"..........the court does not have to believe the defence story,
still less to believe it in all its details, it is sufficient
that
there is a reasonable possibility that it may be substantially true."

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I
respectfully agree. This is in accord with the principle that no onus
really lies on the accused to prove anything (see for example
R v
Difford 1937 AD 370).

Coming to
the facts of this case, the accused has given us his story. He stuck
to it under cross-examination and it is that he was
first attacked by
the deceased with a knife. A struggle which last for a considerable
time ensued. That there was a struggle was
born out by the police
witness who attended the scene and found clothes strewn around the
room which was splattered with blood.
As to who started the fight we
can only learn from the accused and we are not entitled to assume
that he fortuitously and impelled
thereto by some inner evil decided
to inflict fatal injuries on his lover. The accused says it was the
deceased and in the circumstances
of this case I must accept it.

It is
true that PW3 paints a different picture from which we might infer
that he exceeded the bounds of self-defence. But this witness
herself
has doubts as to what exactly happened that day. I have already
pointed out aspects that raise some doubts as to her recollection
of
the events of that day regarding this very aspect. I may further add
that as this witness entered the fateful room she gives

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the
impression that the deceased was cowered on the floor and she had
been called by the deceased who according to her had said
she was
dying. Yet PW3 does not testify that she saw any signs of a struggle
or injury to the deceased. This is most unlikely.
It must be
remembered that her evidence as a single witness here must be treated
with caution. (See R v Moshesha 1976 LLR 47).

My
assessors and I agonized somewhat over the extent of the injuries on
the deceased and that some of them were to her back. Exactly
where at
her back was not explained. The importance of that would be whether
it was at a location where injury could not possibly
have been
inflicted during a struggle. The failure to place these injuries
makes it impossible therefore to draw an adverse inference.
More
importantly it must be remembered that in the fray of a struggle it
is never easy to re-collect , let alone to be sequential
of, even one
own's experiences of the very struggle. One becomes adrenalin driven
and may accomplish feats which one cannot in
a normal situation. I am
unable therefore to say that the extent and location of the injuries
carry the crown case any further.

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In the
circumstances I find nothing in the crown case that demonstrates that
the defence case, which has nothing inherently false
about it cannot
possibly be true. His defence that he acted in self-defence to an
unlawful attack by the deceased must therefore
succeed.

I
therefore have to acquit the accused as I hereby do.

T.
NOMNGCONGO

JUDGE OF
THE HIGH COURT

For Crown
: Ms Ntelane

For
Accused : Mr Mokoko

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