HIGH COURT OF LESOTHO
by the Honourable Acting Judge, Mr. Justice M.L. Lehohla, on the 5th
day of September, 1986.
accused is charged with murder: In that upon or about 29th day of
January, 1985, and at or near Ha Rannakoe, in the District
Mafeteng, the said accused did unlawfully and intentionally kill
pleaded not guilty to the charge. On behalf of the accused, Counsel
for defence made the following admissions:
evidence of P.W.6 at P.E. Detective Sergeant Thoahlane,
evidence of P.W.7 at P.E. Khathatso Phinithi and on some contingent
evidence of P.W.1 at P.E. Dr. Gyasi-Agyi NYAMEKYE who, however, came
just after the opening of defence case and whose evidence
after the granting of an application for the re-opening of the Crown
case for the purposes of hearing his oral evidence
otherwise he is
to be referred to as P.W.4 in these proceedings.
evidence of P.W.6 at P.E. was to the effect that he is a member of
the Lesotho Mounted Police attached to the C.I.D. stationed
Matelile. On 30th January, 1985, he received a report following which
he proceeded to Ha Rannakoe. On arrival there, he found
the body of
the deceased. The body was lying outside the decease's garden but
close to it. The body was still clothed. P.W.6 at
P.E. undressed the
body, examined it and saw a hole in the vest. This hole seemed to
have been caused by a sharp object. The witness
noticed an open wound
on the left side of the chest. There were no other external injuries
besides that one. The body was later
taken to the mortuary and it
suffered no further injuries in the process.
P.E. testified that he is the uncle of the deceased. Having received
a report relating to the deceased he went to deceased's
deceased was already dead. He didn't see any injuries on the
deceased. He identified the body before P.W.4 who
a post mortem examination. He later buried the body at home
witness P.W.I Joseph Bofihla Mejaro gave oral evidence before this
Court and testified that he is a Warrant Officer stationed
Matelile Police Post in the Mafeteng District. He knows the accused.
On 29th January, 1985, he received a report following which
police on patrol on 30.1.85. After the patrol left, accused came to
him at the office between 8 and 9 a.m. Accused said
he had come to
report himself in connection with a fight he had with somebody the
previous day. Accused gave P.W.1 an explanation
and handed him a
knife. P.W.1 cautioned the accused and warned him
should he make a statement such statement would be recorded and used
in evidence against him. Accused expressed his willingness
to go on
with the conversation at the end of which P.W.1 laid a charge against
cross-examination P.W.1 testified that he sent out a police patrol
after he had received a report that a person had died.
He happened to
know about this, through deceased's relative who had come to the
police station on 29-1-85. The relative was one
Tebello or Tello
to a question put by one of the gentlemen assessors. P.W.1 stated
that at the time he came to make the report accused
except for the time when P.W.1 told him that the report received
regarding the knife was that the man on whom it
was used had died.
witness for the Crown was P.W.2 Tello Phinithi who testified that he
is illiterate but however knows the calendar months
language. He is related to the deceased.
29-1-85 P.W.2 was at home building a kraal. He heard accused's voice.
Accused was shouting after a herdboy who was herding sheep
He was shouting that the herdboy should leave those animals where
they were and that he (accused) would see to the man
who was saying
they should be removed. P.W.2 indicated that he was between 100 and
120 paces away from the accused. He further
testified that accused
was obstructed from view. P.W.2 was occupying a higher ground.
after the heard the foregoing, he heard 'Matello's voice saying
accused should not fight the deceased because that's
place. There and then P.W.2 went to where he could see. He saw the
deceased standing. Accused was about three paces
away from the
deceased. When he saw the accused and deceased in this position P.W.2
was about seventy paces away from them. Accused
deceased. Accused had his hands at the back as he did so. When
accused reached the deceased, accused removed his
hands from his back
and stabbed the deceased. Before the stabbing P.W.2 had heard no
altercation between the two. Had there been
one, he says he would
have heard it as he was approaching them fast. P.W.2 heard accused
saying "I will kill you" after
stabbing the deceased with a
knife. Accused said again "I am telling you I'll kill you."
Accused was leaving the deceased
there as he uttered those words.
P.W.2 said he could not identify the knife because the handle was
covered by accused's hand. He
only saw the blade which, as he
indicated, could be about 6 inches long. As accused turned back and
left the deceased, P.W.2 came
rushing to where deceased sat down
after being stabbed. Deceased had moved some five or so paces from
the point of his encounter
with accused and sat there. Then deceased
lay on his side.
herdboy drove away the sheep which had been grazing where accused had
said they be left to graze. The sheep belong to Chele
accused's father. The sheep had been, according to P.W.2, grazing in
held the deceased up but deceased appeared to be dying.
had a knife wound below the left breast. He died in P.W.2's hands.
The latter raised an alarm and people came in response
went to report to the chief who in turn handed him a letter to take
to the Matelile Police Station where P.W.2 reached at
stabbing had taken place towards sunset. P.W.2 was accompanied to
Matelile Police Post by the chief's messenger, a youngster
arrived the following morning, waited for their vehicle after
examining the body in the presence of P.W.2. When the vehicle
arrived,the body was loaded in it and conveyed to the mortuary at
Mafeteng where it was examined by P.W.4 and later released to
relatives for burial.
testified that accused and deceased were not on good terms.
cross-examination learned Counsel for defence taxed this witness for
saying he knows accused because he and accused are fellow
instead of saying he knows him because they are relatives. It was
suggested that blood relationship should come before
relationship based on the fact that accused and this witness
lived in the same village. P.W.2 conceded but denied that
this obvious and natural rule because of his bias against accused.
To the questions: "Where were you building the kraal .....? At
accused .......? I did not see him while I was building, I only heard
his voice. Can you hear conversation between accused
from the distance of deceased's home ...." I could. How good is
your hearing ......? I don't know. I put it to
you you don't have
good hearing .....? It is good", he replied.
testified that from his own home he could see 'Matello's home.
However, he could not see 'Matello because when he heard her
she was not at her home. He only saw her when he came to view and she
was in a path leading to her home. When she fell into
view she was
not far from him. He further stated that the horse which deceased had
been riding belonged to 'Matello. Deceased only
looked after it.
Deceased had dismounted the horse at 'Matello's home on arrival from
the fields. He denied that the horse was
at any time grazing in the
yard behind accused's house.
further stated that during the hoeing done at accused's father's
field he could see the horse in the fields away from home. The
distance between P.W.2 and the fields was estimated at about 400
paces (from witness box to King's Way). In P.W.3's estimation,
same distance was estimated at around a kilometre. P.W.3 however,
said because P.W.2 is the one who usually does the pacing
during ploughing season, she deferred to P.W.2's estimation as
opposed to hers.
further as to how he could see the wound on the deceased despite the
fact that not only was the wound covered by the vest
worn by deceased
but also the fact (as deposed by this witness at the
that deceased had placed his hand over the wound, P.W.2 said he
could see blood oozing around the hand.
question: "There is a difference between blood and wound .... ?
None; Blood comes from a wound.Was deceased bare - breasted
He had a vest and overall. You saw the wound through the vest and
overall ...? The overall was unbuttoned. The vest.......?
punctured. I had seen accused stab ", he replied.
further testified that his home and 'Matebello's are equidistant from
the scene of the incident. On coming into view, however,
that he must have been closer to accused and the deceased than
'Matello. This is why he could see the knife blade
clearly as opposed
to 'Matello's testimony on this point that she only saw accused's
fisted hand striking at deceased. P.W.2 insisted
that he went rushing
to the scene because he had seen the knife used by accused in
stabbing the deceased. In reply to the question
put to him that at
that distance he couldn't have seen the knife because it is not as
long as he estimated it, he replied that
if it is not that long then
accused may have changed it. He denied the suggestion
accused showed him the knife after stabbing the deceased with it. In
answer to that he said "No, he pocketed it in
his back pocket
vehemently denied that deceased used to tether 'Matello's horse in
accused's yard. He was adamant that deceased used to tether
in the public grave yard. The grave yard, it appears, is behind
accused's parents' house. He further stated that each
time the horse
had been tethered there by deceased, accused would come and untether
it claiming that the area there is in his yard.
He further denied
that prior to the stabbing, there had been any fight between accused
and deceased. He also pointed out that Chele
refused to come to
deceased's assistance. Chele had been closer to deceased than was
Letutla who even by-passed him standing there
and came to assist the
insisted that accused said to deceased after the latter had been
stabbed "I'll kill you." Asked what deceased said
anything after the stabbing, he replied: "Come and see what you
have done" to this accused said: I'll kill you I am
you," and left. He further said there was bad blood between
deceased and accused manifested by accused untethering
tethered by deceased at least twice in the area in question, namely
the grave yard.
'Matello Phinithi testified that she had gone to the lands on 29-1-85
to thrash wheat. Deceased came to collect wheat that
had just been
thrashed. On returning from
lands, deceased came to P.W.3's yard. Accused's father and deceased's
father are related.
gave her a report and ran. He was running towards his yard. P.W.3
came following but at some point waited and watched.
She saw sheep in
deceased's yard. Deceased drove them and the herdboy away from that
yard. While at about from the witness box
to the new Government
complex, P.W.3 saw accused come at deceased in full run and deliver a
fisted blow at deceased's chest region.
Before then P.W.3 had shouted
to accused saying "Where are you running to and for what are you
running to Ramohau?" She
testified that accused sometimes fights
the deceased. She thus feared that he was running to fight the
deceased one more time.
She went into her house to drop the basins
she had been carrying from the fields. On coming out she saw the
deceased sit down.
There and then she saw P.W.2 supporting the
deceased. She also went up there. When she arrived there were many
people running towards
the scene. Others were already gathering
she saw accused run to deceased she only saw him strike at deceased.
Thereafter accused ran away. When she came to the
scene she saw a
wound below deceased's breast. It looked as if caused by something
sharp. P.W.2 left for the chief's place to report.
He later came back
in the evening and joined people who were keeping vigil around the
deceased. Police came the following morning.
testified that during the day deceased had tethered the horse in her
own field which was not under crop. She said her field
from Chele's by a donga. Deceased had gone to hoe in Chele's field
while waiting for wheat to be filled in bags in
P.W.3's field and in
turn loaded on the horse and donkeys and carried to P.W.3's house.
corroborated P.W.2's evidence that deceased and accused used to
fight. She detested the swearing done to deceased by accused
accused is by far the deceased's junior and owed him respect. She
further said accused used to untether the horse from
the grave yard
next to accused's home. Under cross-examination she testified that
deceased had been invited for the hoeing at Chele's
was using P.W.3's hoe. She further said the only horse that was in
the area was hers having been tethered in her
field by deceased who
was hoeing next door at Chele's field. The Kaffir corn hoed was still
young i.e. two ears or 1½ feet
tall. She said her horse is big
and can be seen from the village to the fields i.e. a kilometre away
or in P.W.2's words 400 paces
away. She conceded that by the
expression "deceased used to fight with accused" she did
not mean physical combat, rather
she meant the verbal abuse hurled by
accused at deceased and that it was detestable because accused was
deceased's junior. She
also conceded that Chele's sheep were
feeding on grass and not crops as there weren't any in deceased's
denied that there was ever a scuffle between deceased and accused
before the incident. She denied that
did at all lash accused with a whip. She said nothing obstructed her
view and that had there been any whipping she would
have seen it. She
denied that she was prejudiced against the accused. Under
re-examination, she said when she saw accused go to
deceased, she was
outside her house.
before the incident deceased had said to her "look, Chele's
sheep are grazing in my yard, but accused detests my horse
next to his home. She said deceased's yard is not fenced. She said
accused was born in 1957 while deceased in 1936.
witness for the Crown was P.W.4 Dr. NYAMEKYE. Although his evidence
at P.E. had already been admitted, it was in the interests
that his oral evidence be heard.
testified that he conducted a post mortem examination on the body of
deceased on 31-1-85. The body had been identified to him
by P.W.2 and
another. It had been dead more than 24 hours. Inspecting the knife
Exhibit "1" he said it was possible the
wound he saw on the
deceased could have been caused by a similar knife. His report was
handed in marked Exhibit "A".
He testified that death
resulted from laceration of the pericardium and the left ventricle.
There was a stab wound in the sixth
intercostal space in the mammary
line. Under cross-examination he elaborated that what he said meant
that there was a cut or a
tear on the left side of the heart. The sac
of the heart was torn. The result of the tear was the bleeding into
the heart. The
flow of blood into the sac
pressure on the heart muscles. Asked if Exhibit "1" despite
its size could cause the injury referred to, he replied:
and elaborated that Chest muscle is less than 3 centimetres from the
heart. He said it was difficult to determine
the degree of force used
because the knife went through soft tissue but he was of the view
that because the knife was not sharp
the degree of force used was
more than slight.
closed its case at this stage and the accused gave the balance of his
swore that on 29th he left for his sister's home. On the way he met
with deceased who inquired why accused untethered his
replied that he had not untethered deceased's horse whereupon
deceased said: "Don't argue with me. This is
my horse not your
mother's," and imprecated a curse on accused by referring to
accused's mother's front passage.
then struck accused with the handle of his whip. He hit him the
second time and then accused inquired why the deceased
hit him thus.
Thereafter the two grappled. Accused got hold of the whip. A struggle
for its possession ensued. The whip fell down.
Deceased hit accused
with fists. Accused did not see anybody during the struggle. Accused
did not see P.W.2 nor did he see P.W.3.
Accused said both these
witnesses' homes are out of view from where he was engaged in the
struggle with deceased. He denied having
been warned against
approaching deceased by P.W.3.
this struggle deceased placed his hand in the pocket and produced a
brown knife. Accused produced his too i.e. Exhibit "1".
When "he (deceased) tried to kill me I ducked. Then when he
tried again he failed to stab me. Then I stabbed him as it appeared
he had come closer to me. I managed to stab him. We then parted. He
went away, so did I."
testified that deceased was wearing an overall. He never thought the
knife had penetrated the overall. Accused says he never
killing the deceased, not even seriously injuring him.
time accused went to his sister's home he did not see any sheep in
deceased's yard. He would not expect seeing them there
knew they were far away in the veld.
reason for objecting to deceased's tethering the horse in the area
was that the horse would overgraze the area and the
result of this is
that when cattle bolted from the kraal at night they would stray into
the fields and destroy crops because nothing
on which they could
graze would attract beforehand them . Earlier accused had said he
objected to this because the peg used for
tethering the horse would
make the soil loose and thus attract fresh lawn to grow there and
consequently the cattle which would
bother him. He said the kraal and
the grave yard are 50 paces apart and that there is no visible border
dividing his father's premises
from this grave yard.
day in question, the horse was not tethered there.
parting with deceased, accused met with a boy called Lebamang who
told the accused that he learnt there had been a fight between
deceased and him. Accused admitted the event. On hearing from
Lebamang that deceased had been injured, accused went home collected
a blanket and set out for the Police Station. He reached the Police
Station the following day and reported himself. Late in the
police informed him that people had come to report that deceased had
died. Police searched him and found a knife on him
accused that this was the knife with which he had killed the
deceased. They laid a charge against him, took away the
locked accused up in the cell.
cross examination accused stated that Chele is his father and the
sheep which were in the veld belonged to his father Chele
and on that
day were herded by Makhala in a small valley far away from home. He
stated that P.W.2 and 3 were not telling the truth
when they said the
sheep were grazing in the village that day herded by Makhala.
they should lie thus, he answered: "To support each other."
He denied that he ever shouted after Makhala while
the latter was
tending sheep in deceased's yard. To the question put to him that
"you said Makhala leave those sheep there;, whoever says you
should remove them I will see to (him) ......? They are
telling the truth", he replied,
suggested that P.W.2 and P.W.3 are just imaginative. He said he was
50 paces away from the deceased when he went to meet him.
that P.W.3 asked him not to go to the deceased. He said
been an altercation between him and deceased before the fight. He
denied that P.W.2 saw him holding a knife. He said deceased
some 15 paces away from the scene of the incident before falling out
of view. To the suggestion that evidence showed deceased
have walked more than two paces away from the scene accused said that
was not true. One of the crown witnesses had in
any event said
deceased had moved about seven paces away from the scene.
what he was going to report to the police, accused said: "Because
Lebamang had told me deceased had been injured."
think he had seriously injured deceased though he had used a knife.
Asked why he didn't think he had seriously injured
using a lethal weapon on him accused replied: "I was running
denied that deceased said to him after being stabbed "come and
see what you have done." He said he had never quarrelled
P.W.2 and suggested that he was being implicated by him because of
"The horse of P.W.3 and P.W.2." Further pressed
answer to the question put: "P.W.3 never said the horse is
P.W.2's ---- ---? "It is P.W.3's," he replied.
why should P.W.2 implicate you .......?" He knew deceased's
feelings." Accused denied that he handed the knife
over to the
question: "At the place where deceased tethered the horse, is it
communal property or any particular person's ---? It
is the chief's
place", he replied.
said the place where the horse was tethered was not
yard. In the same breath, he said the place did not belong to him. He
was thus placed in a cleft stick to explain why
he bothered deceased
about where deceased tethered the horse.
he did not run away from deceased while the latter whipped him, he
replied that deceased denied him that chance.
with the statement that when deceased's body was searched only
tobacco and a pipe were found and no knife, accused said
Asked what happened to it, he said the first person who came to the
scene took it.
significant that nowhere was it suggested, let alone put to Crown
witnesses, that deceased had a knife with which he tried
accused. This is a factor that arises late under cross-examination.
Accused truly said he did not tell his Counsel about
it. It is to be
wondered how he could fail to give to his Counsel such ammunition of
great importance to his defence if it is true
matter which was raised was with regard to P.W.2's hearing ability.
Questions were rightly put to him to show that his hearing
good. Learned Counsel referred in support of ' this point to P.W.2's
failure to respond when being asked to come to the
witness box next
to the interpreter. It is true P.W.2 looked rather sheepish after
being ushered into the court room by Court Orderly
who did not
properly show him where he was to take his stand. Naturally, he
looked back to locate where the Orderly had disappeared
the latter had been following him. Amidst all that P.W.2 was seeing
in the well of the Court, he saw the accused
in the dock with all the length and breadth of the bench to spare, so
he headed for the door to the dock intending to go
and sit next to
accused who was blanketed the same way as this witness. It was at
this stage that the interpreter raised his voice
to attract this
witness to the place where he was required to take his stand. I would
conclude that p.w.2's initial sheepishness
was due to the fact that
he was over-awed by the Court atmosphere and thus failed to take his
stand as easily as one who is used
to the place.
quite satisfied with his hearing ability. Nowhere during the
proceedings did it require anybody including the interpreter to
his voice above normal speaking tone in order to enable P.W.2 to
hear. He denied that his hearing is defective.
adduced in evidence in fact point counter to any suspicion that he
does not hear properly. It was when he was busy building
and obscured by the lie of the land from view that he was attracted
by the raised voice of accused addressing himself
to Makhala who was
grazing sheep and goats in deceased's yard. It was in the same
circumstances that he heard his mother's voice
for rushing at deceased who was asking Makhala to remove his sheep
from deceased's yard. It was in response
to these voices that he left
his kraal-building business and headed in the direction from which
the voices were coming.
... the accused stab the deceased with a knife. He heard accused
after doing so say I'll kill you and repeat his threat to
He heard deceased ask the accused to come and see what he had done.
As for the stabbing incident P.W.2 is corroborated
by P.W.3 who
because of the distance (she was further away from
than P.W.2) only saw a fisted blow around the chest area of the
is one-eyed. He concedes that with his one eye he is not able to see
as well as when he used to have both his eyes functioning.
his field of vision is to some extent reduced therefore;assuming that
he is truthful when he says he did not see P.W.2
and P.W.3 This could
be ascribed to the fact that not in all cases where a two-eyed person
can perceive things accused would not.
But there was no suggestion
that during the encounter with deceased accused fixed his vision no
where else except on his quarry.
In any case if he did so, that is
all the more reason why he could not see P.W.2 when he came rushing
to the scene followed by
the rest of the people who came afterwards.
It is clear that accused cannot be telling the truth when he says he
did not see P.W.3
less still when he says P.W.2 and P.W.3 were not in
the area at all.
these witnesses gave their story convincingly and without any attempt
to either exaggerate or falsely to put accused in any
bad light. They
know of bad blood that existed between accused and deceased. Nowhere
in evidence did it seem they preferred one
to the other. In fact
P.W.3 stated categorically that she did not like accused's habit of
swearing at the deceased because deceased
was older than accused
therefore was expected to respect him. To the questions: "Accused
in your view has always been wrong
-----? I don't say he is wrong. I
blame him for killing deceased who had done no wrong. I put it to you
that you are prejudiced
against the accused because of being
disrespectful to deceased- ----? l don't mind the lack of respect. I
am concerned about deceased's
death", she replied.
would have me believe that when the incident took place in the
village at day time nobody was around, who could have seen
except himself with one eye and deceased who can no longer testify.
incident which precipitated this episode derives from deceased
driving away accused's father's sheep and herdboy from deceased's
yard. This is in turn connected with deceased's horse actually
P.W.3's horse in the care of deceased being tethered in the grave
yard behind accused's parents' home.
accused's story that on this fateful day deceased had insulted
accused by his mother's private parts. Had this been so
have heard because immediately after he had heard accused's shouting
at the herdboy Makhala and P.W.'s verbal attempts
accused from making for deceased, P.W.2 impelled by eagerness to see
what was going to happen was at the spot within
two shakes of a
assuming for the moment that accused's tale is worth consideration,
and that the provocative words were uttered relating to
private parts, one is left in a quandary to visualise where exactly
in the chain of events the narration given by
him fits. First it is
improbable that such words could have been uttered without P.W.2
hearing them and seeing the events that
took place either then or
shortly afterwards. P.W.3 definitely should have seen the events even
if she were not to hear the exchange
of words uttered or the insults
difficult to see where the provocative words fit in the
the fact that before the encounter with deceased, accused while still
a good distance away from the deceased was asked
by P.W.3 to desist
from rushing at the deceased. P.W.2 though not seeing anything at the
time was quick to debouch into open ground
and see accused heading
for the deceased with his hands behind him. Meantime he was gaining
on deceased and accused as there was
no suggestion that accused and
deceased were moving away from the point of their encounter. P.W.2
saw accused deliver a stabbing
blow at deceased. This is the signal
point at the question of the encounter. It is preceded by no acts
such as whipping of the
accused by deceased, falling of the whip
during the struggle that ensued, delivery of fist blows at accused by
deceased, and drawing
of the spurious brown knife by deceased coupled
with two attempts by deceased to stab accused before the latter
delivered . the
fatal knife blow at the deceased.
accused's story that P.W.3 did not see everything as she claimed she
did, does have some substance in that, after seeing
accused deliver a
fisted blow at deceased she went for a brief moment into her house to
put away the basins she had been carrying
and later when she saw
deceased sitting down and P.W.2 supporting him. While nothing of
significance seems to have happened at
the place of encounter while
P.W.3 was in the house, P.W.2 was near enough to deceased and accused
to have heard and seen what
was taking place between those two. In
other words any suggestion that the acts alleged to have been
committed by deceased on accused,
could not have been seen by P.W.3
while she was in the house is countervailed by the fact that P.W.2
would have seen such and heard
same because by then the approach of
accused to deceased was nearly complete and P.W.2 was closing in on
the scene all the time.
P.W.3 corroborate each other on material aspects of this case. As eye
witnesses to the event their evidence is above par
reproach. They were not shaken under cross-examination. Accused
himself corroborates the Crown story as to the whereabouts
horse on the day in question notwithstanding questions put by his
Counsel to Crown witnesses that the horse was tethered
at or near
story is a pitiful fabrication or at best an afterthought
pointing to the fact that he is telling a palpable falsehood.
in South African Law of Evidence 3rd Edition at Page 461 says:
"In certain circumstances however the making of a false
statement may throw an unfavourable light upon a fact previously
neutral, which can become an item of corroborative evidence."
The Crown very properly concedes that the fact that the accused
proved to have told a false statement either in evidence or out of
Court cannot per se constitute corroboration. Hoffman P.461
But in the light of the accused's inconsistent defence it is clear
there is something which he wishes to hide.
trite law that "...... All such false incredible contradictory
statements if disproved or disbelieved are not simply
but become of substantive inculpatory effect." (R. vs MAKALO
MOLETSANE & ORS 1974 - 75 LLR 316 at 334)
was properly submitted by Counsel for the Crown
accused does not have or bear the burden of convincing the Court of
the truth of any explanation he gives. It is enough if there
reasonable possibility that it may be substantially true.
But "The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice"
of Pensions 1947(2) All E.R.372 at 373 by Lord Denning.
accused's credibility it was submitted by the Crown in argument that
his evidence consists of inconsistencies and deviations.
aspect of the matter clearly surfaced when under cross-examination
this Court heard for the first time that deceased
attempted to stab
accused with a knife. At this stage accused strove to make belief
that he remembered everything that and as it
occurred but was soon
hoist on his own petard when he was earlier confronted with questions
requiring him to account for his actions.
He attributed his failure
to give satisfactory account to confusion. During the "alleged
fight" he seems to have had
an opportunity to look around and
see if anybody was at or near the scene. Apart from the fact that
evidence has shown that there
was no such fight, there is further
evidence to show that accused's was an unprovoked attack on the
deceased. Accused's story has
been shown to be demonstrably false on
this aspect of his evidence as compared with that of the Crown. All
that remains clear is
that he is absolutely unable to account for his
own explanations. For instance he said he was searched by the police
for a knife
yet he himself handed over the knife to the police. No
question by his Counsel was put to P.W.1 to gainsay P.W.1's evidence
chief that accused had handed over the knife to him. Hence P.W.1's
version in this regard becomes conclusive.
evidence remained intact and unshaken by any cross-
Accused's story cannot approach anything near what is reasonably
remains therefore for the Court to determine whether the killing
itself was intentional or not.
J.A. in S vs. Mini 1963(3)S.A. 188 at Page 192, it has been submitted
to me in argument, neatly summed up the position
in these words:
"A person in law intends to kill if he deliberately does an act
which he in fact appreciates might result in the death of
he acts recklessly as to whether such death results or not."
determine the intent, it is also essential to have regard to the
nature of the weapon used, the nature of the injury inflicted,
degree of force applied in inflicting the injury and the part of the
body to which the blow was directed.
instant case the medical evidence revealed that the wound lay in the
sixth intercostal space in the mammary line. The locality
explained as part of the body around the left hand side of the chest.
Shown exhibit "1" whose blade is about 4 inches
doctor said such a knife could have been used to inflict the injury
he had examined. His evidence further showed that
the wound was at
least 6 inches deep. The width was between 1% to 2% inches. As to the
degree of force used to inflict the injury,
the doctor said it was
difficult to determine regard being had to the softness of the tissue
through which the weapon cut. Nonetheless,
he stated that the degree
of force applied was more than slight. He was not asked how long
after such an injury on the sac of the
heart as he
had been inflicted death would ensue if the patient had not been
region of the body on which the injury was inflicted leaves no doubt,
in the words of Holmes J.A. in S vs Mini at P.140 (supra)
" .......... If a person forsees the possibility of death
resulting from his deed and nevertheless does it, reckless whether
death ensues or not, he has in law the intention to cause death."
".............It is not necessary that he should have
to cause death,"
Learned Judge concludes.
further argued by Mr. Thetsana for the Crown basing himself on the
authority of R vs. Jolly 1923 AD 176 at 187 that as Kotze
"The intention of an accused person is to be ascertained from
his acts and conduct. If a man without legal excuse uses a deadly
weapon on another resulting in his death the inference is that he
intended to kill the deceased." See
See R v.
Ngobo 1921 A.D. 92 also R vs. Butelezi 1925 A.D. 169.
keeping with this submission is the presiding Judge's succinct remark
at 194 that
"the knife went through the chest wall and there can be no doubt
that any person pushing a knife through the ribs, through
wall, must have had the intention of causing serious injury to the
person receiving the wound"
and certainly one which might cause death afterwards.
no doubt that the position and nature of the wound inflicted reflect
in this instance the relation between the psyche of
inflicting it and such a consequence of his act as his victim's
death. The wound was inflicted at deceased's vulnerable
part of the
body; directly at his heart. Nothing puts mans rea in any cleaner
perspective than this. If I may add, Mr. Thetsane
pointed out that credibility of witnesses is attacked not at the time
of addresses but at cross-examination in response
to the attempt by
the defence to argue that Crown witnesses had put their heads
together to discuss the case against the accused.
Accused's story of
self-defence is baseless. At no time was his life put in danger by
result I reject accused's version of the events end accept as correct
find that accused in inflicting the wound that resulted in deceased's
death had the requisite intent or mend rea. consequently
found guilty of murder as charged.
Crown: Mr. Thetsane
Respondent: Mr. Addy
now to consider whether there are any circumstances in extenuation of
accused's crime, namely, his moral blameworthiness.
Lansdowne J.P. said in R vs Biyana (1938) E.D.L. 310 -
"an extenuating circumstance, is a fact associated with the
crime which serves in the minds of reasonable men to diminish,
morally albeit not, legally, the degree of the prisoner's guilt."
In R vs
Fundakubu 1948(3)SA 810 AD at 818 Schreiner, J.A. refers to the
subjective side of the considerations to be taken into account,
"It is at least clear that the subjective side is of very great
importance, and that no factor, not too remote or too faintly
indirectly related to the commission of the crime, which bears upon
the accused's moral blameworthiness in committing it can
be ruled out
CRI/T/40/71 R vs Mashaile & Ors. (unreported) Jacobs C.J. said
"Nothing that influenced accused's minds or emotions and
therefore their conduct can be ruled out even if unreasonable for
them to be so influenced. Nor must the brutality and callousness of
the act be given too much weight and be allowed automatically
exclude extenuating circumstances."
In R vs
Mkize 1953(2) SA 324 AD at 336 Steyn J.A. said
"I should be prepared to say that the subjective test of the
accused's state of mind is not only a factor to be taken into
account, but is indeed a more important one to consider in this
regard than the objective test of the factual basis for that state
taken into account that there was no premeditation. I accept that
accused is illiterate. It is important in considering the
of extenuating circumstances to have regard to the
milieu of which accused is a product and a member. He is
unsophisticated and is a layman of peasant variety. The wound that
inflicted is only one, but if I may add from the demonstration he
made I was amazed by the deft manner and the dexterity with
flicked and wielded the knife.
had nurtured evident hatred against the deceased. There was no love
lost between the two. Accused used to untether deceased's
where deceased had tethered it. There is no physical boundary between
this place and the purlieus of accused's father's
deceased drive away the sheep, goats and their herd from deceased's
place which admittedly is not fenced, coupled
with the fact that as
the yard was under no crop but just grass accused's hatred was fanned
to an uncontrollable degree against
the deceased. His latent
resentment could no longer be confined to the usual hurling of abuse
at deceased. He had already ignored
P.W.3's verbal restraint against
going to the deceased. Apparently there was nobody to intervene
physically before the fatal blow,
which however indicated his
intention to kill, for he had cunningly hidden the knife behind his
back as he approached the deceased
in order to perform his
blackguardly act on him.
swaggering young man imbued with such distortion of the mind due to
hatred and animosity discloses the factual basis for the crime
committed; and that diminishes morally the degree of his guilt. I
find therefore that there were extenuating circumstances but
which accused should suffer the extreme penalty.
listened carefully to the submissions made on your behalf regarding
sentence. I have taken into account the fact that you
have been in
January 1985, that is almost two years now.
innocent life has been removed. P.W.3 is now without a trusted and
willing helper. The society has lost one of its members for
reason. It is fitting therefore that society be, in terms of the law,
allowed to get its own back as well as protected.
minimum sentence I propose imposing is that of eight years'
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