CRI/T/214/02

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

vs
MAHLOMOLA MAKOA

JUDGMENT

Delivered
by the Honourable Mr. Justice B.K. Molai on 12th Day of September,
2005

The
accused person is before me on a charge of murder, it being alleged
that, on or about 5th June 2002 and at or near Pep Store
in the
district of Mokhotlong, he unlawfully and intentionally killed Popi
Rameno. When the charge was put to him, the accused
pleaded not
guilty.

Eight (8)
witnesses were called to testify in support of the crown case. No
witnesses were called to testify on behalf of the accused
who,
however, went into the witness box and gave evidence in his own
defence.

The
evidence heard by the court was that of Thabiso Mokotleng who
testified as P.W.6 and told the court that he was literate and
lived
at Checha, in the district of Mokhotlong. He worked as a taxi driver
for his elder brother. A little after 4:00pm, on 5th
June 2002, he
was driving his elder

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brother's
4+1 taxi along the public road, in Mokhotlong town. As he passed next
to Lesotho Bank in Mokhotlong town his taxi was
stopped by certain
Lira Maqalaka who asked him to hurry a person to the hospital. That
person was clearly injured as he was bleeding
from the left side of
the chest and breathing heavily. After the injured person had been
put into the taxi, P.W.6 transported him
to Mokhotlong government
hospital. Although Lira Maqalaka himself did not get into the taxi
there were other people who got into
the taxi with the injured
person. As he was driving on his way to the hospital, P.W.6 realised
that the injured person had stopped
breathing heavily, in the taxi.

Eventually
P.W.6 arrived at the hospital where the injured person was put on a
trolley by the nurses. To the observation of P.W.6,
the injured
person was no longer alive, at the time the nurses put him on the
trolley.

After the
nurses had placed the injured person on the trolley, P.W.6 left the
hospital and returned to the village of Thabang, leaving
the injured
person with the nurses and the people who had accompanied him, in the
taxi.

The
evidence of P.W.8, Tpr Mahloko, was to the effect that he was a
member of the Lesotho Mounted Police Service based at Mokhotlong

police station, in the district of Mokhotlong. In the afternoon of
5th June 2002 he was at his duty station when one Lasoaba Fefane
who
was going in the company of the accused arrived at Mokhotlong police
charge office. On their arrival at the police charge office,
Lasoaba
Fefane said he had come to report that the accused had stabbed a
certain young man with a knife.

3

According
to P.W.8, Lasoaba Fefane did mention the name of the young man,
although he (P.W.8) had then forgotten it.

In the
evidence of P.W.8, Lasoaba Fefane also reported that he had already
sent the young man, stabbed by the accused, to the hospital,
in a
vehicle. P.W.8 further told the court that whilst Lasoaba Fefane was
making his report at the police charge office, one Nyapisi,
the
principal of Seeiso High School, arrived and reported that the young
man, allegedly stabbed by the accused, had already passed
away, at
Mokhotlong government hospital. According to P.W.8, he and Sgt.
Hlabana immediately left the police charge office and
proceeded to
Mokhotlong government hospital where they found that the young man
had, indeed, died. In his evidence, P.W 8 then
examined the deceased
for injuries and found that he (deceased) had sustained a single stab
wound on the chest, above the left
breast. There after P.W.8 and Sgt.
Hlabana returned to their police charge office. On their arrival back
at the police charge office,
P.W.8 cautioned the accused and asked
him for an explanation. The accused decided to give the explanation
in which he conceded
to have stabbed the deceased although it was in
the course of a play.

Asked to
hand over the weapon he had used to stab the deceased, the accused
handed over a broken arm of a small pair of scissors.
However,
Lasoaba Fefane who was also still at the police charge office
protested and said the weapon, which the accused had used
to stab the
deceased, was a knife and not the broken arm of small pair of
scissors which he (accused) was handing over to P.W.8.
That was said
in the presence and hearing of the accused who did not dispute it.
Instead he (accused) explained that he had

4

left the
knife at a certain shack, on his way to the police charge office.
Thereupon, P.W.8 told the accused to take him to the
shack to fetch
the knife.

According
to P.W.8, the accused then led him to a shack, where they found a
lady by the name of Ntsoaki Qethiso. On arrival at the
shack the
accused said to Ntsoaki Qethiso: "I am asking for the knife I
had left here when I was passing." Ntsoaki Qethiso
then took a
brown okapi knife from a table in the shack and handed it over to the
accused who, in turn, passed it to P.W.8. According
to him, P.W.8
took possession of the brown okapi knife which had blood stains on
its blade. The knife had since been in the custody
of the police.
P.W8 handed the knife as exhibit 1 and part of his evidence, in this
trial.

P.W.8
told the court that after he had taken possession of the knife,
handed to him by the accused at the shack of Ntsoaki Qethiso,
he and
the accused returned to the police charge office where they found
that Lasoaba Fefane had already left for his home as it
was getting
late. He told the court that he was the one who arrested and charged
the accused with murder as aforesaid.

By
agreement of the parties, a post-mortem examination report was handed
in, from the bar, as exhibit "A" and part of
evidence, in
this trial. According to exh. "A", at about 2:15p.m on 13th
June 2002, a certain Doctor Tarique, who was
a medical officer at
Mokhotlong hospital, conducted an autopsy on a dead body of a male
Africa adult. The body was identified before
him as being that of
Rameno Popi by Phatla Lekhema.

5

It is
significant to observe that Phatla Lekhema was not called as a
witness to testify in this trial. Instead Mohapi Popi testified
as
P.W.7 and told the court that the deceased was his younger brother.
On 6th June 2002 he identified the dead body of the deceased
before a
medical doctor who examined it.

If P.W.7
was testifying to the truth in his evidence that he was the one who
identified the dead body of the deceased before the
medical doctor
who examined it, Dr. Tarique was not correct in exh. "A"
when he reported that it was Phatla Lekhema who
identified to him the
dead body he examined on 13th June 2002 as that of the deceased,
Rameno Popi. Alternatively, if Dr. Tarique
was correct in his report
(exh. "A") that it was Phatla Lekhema who identified the
dead body as being that of the deceased,
then P.W.7 was wrong in his
evidence that he was the one who identified the dead body as being
that of his younger brother, the
deceased in this case.

However,
notwithstanding the discrepancy as to who had identified the deceased
before the medical doctor, there was no dispute that
Rameno Popi, the
younger brother of P.W.7, was the deceased whose dead body was
examined.

According
to exh. "A" the external examination revealed that the
deceased had sustained a sharp penetrating wound in the
left chest at
3rd intercostal space and a huge haemothorax on the left side. On
opening the body the examination revealed that
there was a laceration
of the left ventricle and the left lung. On the above injuries the
medical doctor formed the

6

opinion
that death was due to cardio-respiratory failure secondary to the
penetrating wound in the left 3rd intercostal space.

I can
think of no good reasons why the opinion of the medical doctor that
the deceased, Rameno Popi, died as a result of the injury
inflicted
on him should be doubted. The salient question that arises for the
determination of the court is whether or not the accused
is the
person who inflicted the injury on the deceased and, therefore,
brought about his death.

In this
regard the court heard the evidence of Limpho Natsoana who testified
as P.W.2 and told the court that he lived at Ntlholohetsane,
in the
district of Mokhotlong. He was a student at Seeiso High School in the
district of Mokhotlong. He knew both the accused and
the deceased, in
his lift time. In June 2002 he, the accused and the deceased were
already attending school at Seeiso High School.
He and the deceased
were doing Form D whilst the accused was doing Form C.

P.W.2
told the court that on 5th June 2002 he and a group of his class
mates were playing a game whereby they chased and patted
each other
on the heads. In the course of that game, P.W.2 and the group of his
class mates came to the school toilets where they
found the accused.
They tried to play with the accused who, however, seemed not to like
it. P.W.2 and the group of his class mates
then left the accused
alone and returned to their class room.

At
4:30p.m on the day in question, P.W.2 left the school premises for
home. He was walking in the company of the deceased, Buang,
Tsepang

7

and.
Moeletsi. According to P.W.2, on their way home, he and his
companions found the accused standing next to Pep store. He was
no
longer wearing his school uniform.

After
passing Pep store, P.W.2 had the occasion to look back and noticed
that the deceased was standing with the accused at Pep
Store. As he
and his companions had been chatting as they walked along, P.W.2 had
not noticed how the deceased had remained behind
with the accused at
Pep Store. However, P.W.2 noticed that many people, including some
students of Seeiso High School, were grouping
where the deceased and
the accused were standing next to Pep Store. P.W.2 and his companions
then decided to go back to where the
accused and the deceased were
standing next to Pep Store. On arrival, P.W.2 noticed Lira Maqalaka,
one of the teachers at Seeiso
High School, assisting the deceased
into a taxi which conveyed him in the direction towards Mokhotlong
government hospital. Thereafter
P.W.2 noticed the accused and Lasoaba
Fefane leaving the scene and going in the direction towards
Mokhotlong police station. P.W.2
himself then left the scene, went to
his home and thereafter proceeded to the home of the deceased where
he reported what had happened.

Assuming
the correctness of his evidence, it seems to me that P.W.2 did not
see how the deceased was injured. However, P.W.2 told
the court that
shortly after he had returned to his home, the deceased's elder
brother, by the name of Mohapi Popi (P.W.7), came
to his (P.W.2's)
home and reported that the deceased had passed away.

8

P.W.3,
Limpho Hlahla, testified that he lived at Makoabating, in the
district of Mokhotlong. He too was a student at Seeiso High
School.
He knew the accused and the deceased, in his life time. In the year
2002 he and the deceased were doing Form D at Seeiso
High School
whilst the accused was doing Form C.

According
to him, P.W.3 was not amongst the Form D students who came to the
accused at the school toilets on 5th June 2002. He only
heard about
it from P.W.2 and other boys. After the school had closed, on 5th
June 2002, P.W.3 returned home. He was walking in
the company of the
deceased, Buang Kolanyane and Tsepang Moeko. However, when they
arrived at Pep Store which is next to Makhakhe
store, P.W.3 parted
company with them and went to a shop belonging to one Nkoebele. On
his return from Nkoebele's shop, P.W.3 found
the accused and the
deceased standing next to Makhakhe's shop. The accused was holding
the deceased with his clothes on the chest.
According to him, P.W.3
asked the accused and the deceased as to what was happening. There
was no reply. He then told the deceased
that they should continue on
their way home. The deceased could not because the accused was
holding him by his clothes. P.W.3 then
held the deceased by the hand
and tried to pull him away from the accused who, however, told him
(P.W.3) that he and the deceased
were still talking to each other.
Although he had not heard the accused and the deceased talking to
each other, P.W.3 moved some
distance away from them. It was then
that he heard the accused asking the deceased why he had been
harassing him. There was no
reply from the deceased.

9

P.W.3
then noticed the accused taking a knife out of the hind pocket of his
trousers. He unclasped the knife with which he stabbed
the deceased
on the left side of the chest. The deceased had just been standing
and doing nothing at the time the accused stabbed
him. According to
him, P.W.3 raised an alarm saying the accused had stabbed the
deceased with a knife. As a result of the alarm
Lira Maqalaka and
Lasoaba Fefane came to the scene. Lira Maqalaka, who was one of the
teachers at Seeiso High School, assisted
the deceased into a taxi
which conveyed him in the direction towards Mokhotlong government
hospital. After he had thus assisted
the deceased, Lira Maqalaka left
the scene and went in the direction towards the police station.

On
arrival at the scene, Lasoaba Fefane asked whether the accused was
the person who had stabbed the deceased with a knife. However,
P.W.3
no longer remembered if he (Lasoaba Fefane) did anything to assist
the deceased. All he remembered was that after the teacher
(Maqalaka)
had left the scene Lasoaba Fefane and the accused also left and went
in the direction towards the police station. Thereafter,
P.W.3 also
left and continued on the way to his home.

Lira
Maqalaka testified as P.W.4 and told the court that he was a teacher
at Mabuleng High School. However, in June 2002 he was
staying at
Seeiso High School, in the district of Mokhotlong, where he was
working as a teacher. He knew the accused and the deceased,
in his
life time. The accused and the deceased were his students, at Seeiso
High School. The accused, who was older and physically
stronger than
the deceased, was doing Form C whilst the deceased was doing Form D,
in the year 2002.

10

According
to P.W.4, after school hours on 5th June 2002, he left Seeiso High
School, on his way to a place called Ntlolohetsane.
When he came next
to Makhakhe store, he found the accused holding the deceased by both
his wrists. The deceased was trying to free
himself from the accused.
He then heard the accused asking the deceased "u n 'u
ncabathelang?" (why were you "cabathing"
me?) P.W4 did
not know what the accused meant by "cabatha". Nor did he
hear the deceased's reply to that question. However,
as the accused
uttered those words, P.W.4 noticed him taking out a knife from the
hind pocket of his trousers. He (accused) quickly
unclaspped that
knife and stabbed the deceased with it on the chest. When he noticed
that, P.W.4 quickly intervened by stepping
in between the accused and
the deceased. As he stood between them, P.W.4 was facing towards the
accused who tried to side pass
him and rush at the deceased. As he
did so the accused was saying " u batla ho "ncabatha"
ka lejoe?" (Do you
want to "cabatha" me with a stone?)
P.W.4 told the court that he could not see what the deceased was
doing behind him
because he was facing at the accused. However, when
he heard the accused uttering the words "Do you want to
"cabatha"
me with a stone?", P.W.4 turned towards the
deceased and warned him not to try to fight the accused because the
latter was
armed with a knife with which he might injure him.

P.W.4
assured the court that at the time he turned towards him, the
deceased was not holding a weapon of any kind. He then told
the
deceased that he was accompanying him to the police station. In reply
the deceased said: "Sir, I think it is better that
I be taken to
a medical doctor because I am now bleeding profusely.

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found the
accused and Lasoaba Fefane already there. He reported to the police
what had happened. Whilst he was giving his report
to the police,
P.W.4 noticed that the accused was being searched by a police officer
by the name of Mahloko, who even asked him
(accused) the whereabouts
of the knife which he had used to stab the deceased. In reply the
accused produce an arm of a broken
small pair of scissors and said it
was the instrument he had used to stab the deceased.

According
to him, P.W.4 immediately objected and said the accused had stabbed
the deceased with a knife and not that arm of a broken
small pair of
scissors. It was only then that the accused revealed that he had
thrown the knife into one of the shacks along the
road on his way to
the police station. He agreed to take policeman Mahloko to the shack
into which he had thrown the knife. The
accused and Mahloko
immediately left the police station to fetch the knife. On their
return, the policeman placed a brown okapi
knife on the counter of
the police charge office. Shortly thereafter, the principal of Seeiso
High School also entered into the
police charge office and said to
the accused: "Yes, the child you have stabbed with a knife is
dead. Is it not true that you
wanted to kill him?"

It may be
mention that the principal of Seeiso High School was not called as a
witness to testify in this trial. What he is alleged
to have said or
done is, therefore, hearsay evidence and of no assistance to this
court.

According
to P.W.4, the accused did not say anything to what the principal of
Seeiso High School said to him except that he cried.
The police
officers then escorted the accused to the inner offices in the police
charge

13

office.
P.W.4 told the court that after he had affixed his signature on the
statement he had made to the police, he was released
to go.

Lasoaba
Fefane testified as P.W.1 and told the court that he lived at
Thabang, in the district of Mokhotlong. He was married and
had eight
(8) children. He knew the accused only facially.

P.W.1
further told the court that one day, after school hours, he was
passing next to Pep Store, in Mokhotlong town when he met
a group of
boys. He heard some of them say: "He is going to stab him."
He did not know who was going to stab whom. However,
he noticed
another group of boys standing at a distance next to Pep Store. He
went to that group of boys. As he approached them,
P.W.1 noticed that
there was an altercation between the accused and one of the boys. The
other boys, in the group, were, however,
just standing and watching.

According
to him, P.W.1 then suddenly saw the accused stabbing the boy with
whom he was having a quarrel. When he saw that, P.W.1
hurried to
assist the boy who had been stabbed. He noticed that the boy had
sustained an injury on the chest, above the breast.
P.W.1 told the
court that he then stopped a taxi which was passing by and asked the
driver thereof to take the injured boy to the
hospital.

It will
be remembered that in his evidence P.W.4 told the court that it was
he and, therefore, not P.W.1 who had stopped a taxi
and requested the
driver thereof to hurry the deceased, who had been injured by the
accused, to the hospital. The evidence of P.W.4,
therefore, differed
from that of P.W.1,

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on this
point. However, the evidence of P.W.4 was corroborated by that of
P.W.3 and P.W.6 who had both told the court that it was
P.W.4 and,
therefore, not P.W.1 who had stopped the taxi and asked the driver
thereof (P.W.6) to convey the deceased to the hospital.
I am inclined
to accept as the truth, the evidence of P.W.4 corroborated by that of
P.W.3 and P.W.6 and reject as false, the uncorroborated
story of
P.W.1, on this point.

Be that
as it may, P.W.1 testified that after the deceased had been taken to
the hospital, he himself told the accused to go with
him to the
police station. The accused tried to refuse to accompany him to the
police station, but P.W.1 called at the police officers
who were
practicing on a nearby play ground and asked for their assistance.
The police officers did render the assistance by calling
at, and
telling, the accused to go to the police station with P.W.1.
Eventually P.W.1 did escort the accused to the police station
where
he reported what had happened.

Ntsoaki
Qethiso testified as P.W.5 and told the court that she lived at
Linakaneng, in the district of Mokhotlong. She was self-employed.
On
14 June 2002 she was working in her shack, in the town of Mokhotlong,
when the accused passed next to the shack. As he passed
next to it,
the accused threw a knife into the shack. It was an okapi knife,
brown in colour and had some blood stains on its blade.
According to
her, P.W.5 picked up the knife and placed it behind the table in the
shack. Shortly thereafter, the accused, who was
then accompanied by
P.W.8, returned to the shack and demanded from her the knife he had
earlier thrown into the shack. In her evidence,
P.W.5 told the court
that she then produced the knife and handed it over to

15

the
accused who, in turn, gave it to P.W.8. He (P.W.8) took possession of
the knife and then left with the accused.

It is,
perhaps, worth mentioning that of all the witnesses who have
testified before this court, P.W.5 is the only one who said
the date,
on which these events took place, was the 14th day of June 2002.
Other witnesses said the date was 5th June 2002. There
is no doubt in
my mind that P.W.5 was mistaken and the correct date is the 5 June
2002 as testified by all other witnesses who
appeared before this
court.

After the
crown had closed its case, the accused went into the witness box and
gave evidence in his defence. He told the court that
his home was at
Liraoheleng, in the district of Mokhotlong. However in the year 2002
he was staying at the flats of one Phakisi
in the town of Mokhotlong
and attending school at Seeiso High School which was a distance of
about 12 minutes' walk from the flats
of Phakisi. He confirmed that
in 2002 he was one of the prefects and doing form C, at Seeiso High
School. One of his duties as
a prefect was to report, to the school
authorities, those of the students who infringed school regulations.
The students would
then be punished with the resultant hostility
between the affected students and the prefects.

In his
evidence, the accused further confirmed that, in the year 2002, the
deceased was also a student at Seeiso High School. He
was doing Form
D. On 5th June 2002 he (accused) and some other students were playing
a game of Moraba-raba next to the school toilets
when the deceased
and some Form D students came running to them. The accused's
playmates ran away

16

leaving
him (accused) and one Rammile behind. On arrival the deceased and his
companions assaulted him (accused) with fists and
open hands saying
when other boys ran away he did not, because he was cheeky. According
to him, the accused tried to fight back
but when he realised that he
was being overpowered he too ran away and went to where he stayed at
the flats of Phakisi.

It may be
mentioned that the accused conceded that by assaulting him in the
manner he said they did, the deceased and his friends
were infringing
school regulations. That being the case, one would expect the accused
to have gone to the school authorities and
reported the incident,
rather that go to where he stayed at the flats of Phakisi. Be that as
it may, the accused told the court
that, on arrival at Phakisi's
flats, he decided to go for fishing. He, therefore, put off his
school uniform, took a knife and
a fishing line. He then left for
fishing at the river next to a place called Checha cliffs. When he
was next to Pep and Makhakhe
stores on his way to the river, the
accused met the deceased and some of the Form D students who had
allegedly earlier fought him
at the school toilets. The deceased hit
him with an open hand. His (deceased's) companions joined in the
assault on him (accused).

According
to him, the accused tried to escape by running away. He could not
succeed to do so because there were a fence and many
vehicles passing
on the public road behind him. Realising that he could not succeed to
run away, the accused took out the knife
from his pocket, quickly
unclasped it and stabbed the deceased on the left side of the chest,
in self-defence. The accused confirmed,
therefore, the evidence of
P.W.3 and P.W.4 that he did stab deceased with the knife. The answer
to the question I

17

have,
earlier in the judgment, posted viz. whether or not the accused was
the person who had inflicted the injury on the deceased
and,
therefore, brought about his death, must be in the affirmative. The
next question, that arises for the determination of the
court, is
whether or not in stabbing the deceased, as he did, the accused had
the requisite subjective intention to kill him.

Intention
is not something we can see, hear or reach with any of our five (5)
sense organs. It is something to be inferred from
the accused's words
or acts. In the present case there is no evidence indicating that the
accused uttered any words from which
it can be inferred that he had
the intention to kill the deceased. The only evidence we have is that
the accused used a knife to
stab the deceased on the left side of the
chest. A knife is a lethal weapon and the chest a vulnerable part of
a human body. Assuming
the correctness of the evidence that, using as
lethal a weapon as a knife, the accused stabbed the deceased on the
chest which
is the upper part of a human body and, therefore,
vulnerable, it must be accepted that the accused was aware that his
act was likely
to result in death. He, nonetheless, acted regardless
of whether death did result or not. That being the case, a reasonable
inference
to be drawn from his act is that in stabbing the deceased
with the knife on the chest, as he did, the accused had the requisite

subjective intention to kill, at least in the legal sense. It is,
however, to be remembered that, in his. evidence, the accused
told
the court that, when he was next to Pep and Makhakhe stores, the
deceased and some of his Form D class mates came and unlawfully

attacked him. As there were a fence, and many vehicles on the public
road behind him, the accused was unable to avoid the attack
on him by
running away. He, therefore, repelled the unlawful attack by using
his knife to stab the deceased on the chest, in self-

18

defence.
The accused submitted that by stabbing the deceased in self-defence,
as he did, it could not be properly inferred that
he had the
requisite subjective intention to kill.

It is
significant to observe that the accused's evidence that when he
stabbed the deceased with the knife, the latter and some of
his Form
D class mates were fighting him, was denied by P.W.3 who told the
court that at the time, the deceased was just standing.
There was, no
fight, at all, between the accused and the deceased or for that
matter anybody else. The evidence of P.W.3 was, on
this point,
corroborated by P.W.4 who was admittedly one of the teachers at
Seeiso High School. In view of the fact that both the
accused and the
deceased were students at his own school, I can think of no good
reasons why P.W.4 would falsely incriminate the
accused in this case.
I, therefore, find, as the truth, P.W.4's evidence corroborated by
P.W.3 that, at the time the deceased was
stabbed with the knife by
the accused, the former was not unlawfully attacking the latter and
reject, as false, the uncorroborated
evidence of the accused that,
when he admittedly stabbed him, the deceased was unlawfully attacking
him.

Assuming
the correctness of my finding that the deceased was not unlawfully
attacking the accused, at the time the latter stabbed
him with the
knife, it follows that the private defence of self-defence did not
avail the accused. In the result, the accused could
not be heard to
say when he stabbed the deceased with the knife on the chest he was
repelling an unlawful attack on him and, therefore,
acting in
self-defence.

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I,
accordingly, find the accused guilty of murder, as charged.

EXTINUATING
CIRCUMSTANCES

Having
convicted the accused of murder, the court is now enjoined by section
296 of the Criminal Procedure and Evidence Act 1981
to determine the
existence or otherwise of any factors tending to reduce the moral
blameworthiness of his act. In this regard the
court was invited to
take into account the fact that at the time he committed the offence,
against which he stands charged, the
accused was still a youth of
about 18 or 19 years old and that he had been provoked to do what he
did to the deceased by the deceased
himself and his friends. I agree
that as a youth the accused was still immature of mind. Because of
the immaturity of his mind
the accused could not be expected to act
like a mature person. The accused's youthfulness was in my finding, a
factor tending to
reduce the moral blameworthiness of his act.

It may be
mentioned that, in his evidence, P.W.2 told the court that, on 5th
June 2002, he and a group of his Form D classmates,
were playing a
game whereby they chased and patted each other on the head. In the
course of that game, they came to the school
toilets where they found
the accused. They tried to play with the accused by patting him on
the head. The accused seemed not to
like it. They then left the
accused alone and returned to their classroom.

On the
other hand, the accused told the court that whilst he and some other
students were playing a game of moraba-raba, next to
the school

20

toilets,
the deceased and a group of Form D students came running to them When
other students who had been playing moraba-raba ran
away, the accused
and one Rammile did not. According to the accused, on arrival, the
deceased and his companions did not try to
play with them, as P.W.2
wished the court to believe. They actually assaulted them by hitting
them with fists and open hands saying,
when others ran away, they did
not, because they were cheeky. In his evidence the accused told the
court that he tried to fight
back but when he realized that he was
being overpowered, he too ran away and went to the place where he
stayed, at the flats of
Phakisi. He then decided to go for fishing at
a river, next to a place called Checha cliffs. He accordingly put off
his school
uniform, took a knife, a fishing line and left for
fishing, at the river.

When he
was next to Pep and Makhakhe stores, on his way to the river, the
accused met the deceased and some of the Form D students
who had
earlier allegedly assaulted him, at the school toilets. The deceased
and his companions again assaulted him. Accused told
the court that
he tried to escape, by running away, but could not succeed because
there were many vehicles passing on the public
road, behind him, and
a fence. He then remembered that he had a knife in the pocket of his
trousers. He took out the knife, quickly
unclasped it and stabbed the
deceased on the left side of the chest, in self-defence.

That was,
however, denied by P.W.3 who told the court that, on his return from
the shop of Nkoebele, he found the accused and the
deceased standing
next to Makhakhe's shop. The accused was holding the deceased by his
clothes, on the chest. When P.W. 3 told
the deceased that they should
go

home, the
accused told him (P.W.3) that he and the deceased were still talking.
P.W.3 then moved some distance away from them. It
was then that P.W.3
noticed the accused producing, from the hind pocket of his trousers,
a knife with which he stabbed the deceased,
on the chest.

P.W. 3
assured the court that at the time the accused stabbed him, the
deceased was not doing anything to this accused. He denied,

therefore, the evidence that the deceased and some other students
were fighting the accused. The evidence of P.W.3 was corroborated
by
P.W.4, a teacher at Seeiso High School, who told the court that after
school hours, on 5th June 2002, he left Seeiso High School
on his way
to a place called Ntlholohetsane. When he came next to Makhakhe
store, P.W.4 found the accused holding the deceased
who was trying to
free himself from him (Accused). P.W.4 then heard the accused asking
the deceased "why were you "cabathing"
me?" As
the accused uttered those words, P.W.4 noticed him taking out of the
hind pocket of his trousers, a knife with which
he stabbed the
deceased on the chest. He denied, therefore, the evidence that at the
time the accused stabbed the deceased, the
latter and some other
students were assaulting the former.

I am
prepared to accept as the truth, the evidence of P.W.3 corroborated
by P.W.4 and reject, as false, the uncorroborated version
of the
accused, on this point. However, the evidence of P.W.2, that when he
and a group of Form D students came to the accused
next to the
toilets and tried to play with him a game whereby they were chasing
and patting each other on the heads, was not disputed
by the accused
who told the court that, when they came to him at the toilets, the
deceased and his companions did not play with
him. They

22

actually
assaulted him by hitting him with fists and open hands on the head.
Whether the deceased and his companions were trying
to play with the
accused, as P.W.2 wished the court to believe, or they were
assaulting him, as the accused wanted the court to
believe, it is
common cause that the accused did not like what the deceased and his
companions were doing to him and he, therefore,
considered it to be a
provocation which is, in my view, a factor tending to reduce the
moral blameworthiness of the accused's act.

The court
also took into consideration the fact that, in finding that the
accused had the requisite subjective intention to kill,
it said that
intention was in the legal sense i.e. there was no evidence that the
accused had planned or premeditated the death
of the deceased. That
lack of premeditation of the deceased's death, on the part of the
accused, was, in my finding, a factor tending
to reduce the moral
blameworthiness of his act. In my judgement, there are, in this case,
extenuating circumstances, namely provocation,
the accused's
youthfulness and lack of premeditation of the deceased's death. In
the result, the proper verdict is that the accused
is guilty of
murder, as charged, with extenuating circumstances. He is accused is
accordingly convicted.

My
assessor agrees.

SENTENCE

Now,
coming to his punishment, the crown counsel informed the court that
the accused had no record of previous convictions. He was,
therefore,
a first offender - a factor which I take into account, for the
benefit of the accused, in determining his appropriate
punishment.

In
mitigation of the accused's punishment, Mr Molapo, counsel for the
defence, also addressed and invited the court to take into

consideration firstly the fact that, at the time of the commission of
the offence, the accused was aged about 18 or 19 years. He
was,
therefore, still young and immature of mind. Secondly, the court was
invited to take into account the fact the accused had
been provoked
into doing what he did to the deceased.

The court
was, however, not prepared to turn a blind eye to the seriousness of
the offence against which the accused had been convicted.
He had
deprived another human being of his life. The life of a human being
is God-given and for that reason sacred. The law of
our country
forbids people from taking the law into their own hands and
unlawfully killing others. There is nothing wrong with
this law which
clearly emanates from the divine command "Thou shalt not kill."
The accused is no exception. After all,
the accused lives in Lesotho,
a civilized country, where courts of law have been established to
solve disputes in a civilized manner.
If he thought the deceased had
wronged him, the accused's duty was to take him before the courts of
law so that their problem could
be solved in a civilized manner.
Certainly not to take the law into his own hands and kill the
deceased.

In their
numerous decisions, the courts of law have warned that they will take
a diem view of people who unlawfully kill others.
Notwithstanding the
warnings, many homicide cases are still being brought before the
courts of law, in this Kingdom. It seems these
warnings go unheeded
and there is,

24

therefore,
the need to impose a punishment that will deter the accused from a
repetition of the kind of behaviour, against which
he has been
convicted. A sentence that will serve as a lesson to the accused and
people of his mind that the courts of law do not
encourage the type
of behaviour, against which the accused has been convicted.

In the
result, I come to the conclusion that a punishment of ten (10) years
imprisonment will meet the justice of this case. The
accused is
accordingly sentenced.

B.K.
MOLAI

JUDGE

For Crown
: Mr. Tlali

For
Defence : Mr. Molapo