CRI/T/13/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

V

SEABATA
MOKHACHANE

JUDGMENT

DELIVERED
BY THE HONOURABLE MRS. JUSTICE KJ. GUNI ON THE 16th DAY OF MAY, 2005

Charge_____________murder................................burden of
proof.............................................

Accused pleads self defence.________________standard of
proof..__________________

General principles
applicable....................................entitling accused to an
acquittal on the grounds of self-defence.

SUMMARY
OF THE CASE

The
accused was assaulted by two men. He escaped and ran away. They
chased after him. He went into a hiding but he re-appeared in
the
presence of his mother he ran into his mother's house. They caught
him and tried to pull him out. He hold on to the refrigerator
to
prevent them to taking him away. He found the knife on top of the
refrigerator and stabbed one of his assailants once. He died
from
that stab wound. The accused is charged with the crime of murder. The
accused pleaded self-defence

Held: That the accused acted in self-defence to stop the attack or
to prevent further Attack upon his bodily integrity.

HISTORICAL
BACKGROUND OF THE CASE

On the
night of the 21st December, 2002, at about 10 pm, the deceased person
was entertaining the accused person and one other person
- Pw1 at his
house. Pw1 had come into the deceased person's home to watch his
favourite programme on the television. He found the
deceased and the
accused drinking beer whose surplus in that house was at the time of
his arrival dwindling. The deceased gave
the accused some twenty
maloti and asked him to go and buy some more beer. The accused
obliged. The three men continued their drinking.
Pw1 and the deceased
concentrated their attention on the programme they were watching on
the television. At the same time they
engaged in some discussions
perhaps commenting on what they saw on the television. The accused
person concentrated on drinking
the alcohol. He became very drunk. He
fell asleep there at the table whey they were all seated. After a
little while he woke up.
He could not tell exactly where he was. He
felt a need to use a toilet. He stood up from his chair. He
unfastened his belt. He
lowered his pair of trousers. He squatted on
the floor beside the table and the chair and defecate. Pw1 noticed
the accused person
couched by the table. He thought, to himself, that
the accused was fastening his shoe laces. He then smelt feaces. The
smell came
directly from where the accused was couching. Pw1 looked
carefully then at the accused. He noticed that the accused was
actually
defecating. He then drew the attention of their host to this
phenomenon.

2

The
accused was assaulted there and then. He was ordered to remove his
feaces. The accused did not clean up. He ran away to his
own home.
The two men - Pw1 and the deceased followed him in hot pursuit. The
accused out ran them and got to his home first. There
he went into a
hiding at the shelter which he uses as his bedroom. The two men on
their arrival at the premises went straight to
the main house.

On their
arrival at the house they knocked perhaps too hard. The accused who
was hiding in his bedroom heard that knock. He strongly
suspected
that it must be the deceased and Pw1 knocking at the door. He came
out of his hiding place. Surreptitiously cripped along
the walls from
the shelter towards that door where the deceased and Pw1 were
knocking. He was observed by Pw1 who quickly went
to him and
apprehended him when he tried to get away.

The
accused person's mother heard the knock too. She was asleep when she
was rudely awakened by that hard knock at her door. She
enquired who
it was that was knocking. The deceased person introduced himself. She
asked him what it was that she could do for
him. The deceased person
indicated that he was putting some boy under control. She asked,
"whose boy'? " What sort of
control are you putting him
under!"

3

Having
recognized the deceased person by his voice and also his
introduction, the accused person's mother woke up. She put on the

candle light. She proceeded towards the front door where the knock
was. Immediately when she opened the door, her son - this accused

came into the sitting room. He was followed by Pw1 and then the
deceased person. Pw1 and the deceased appeared to be trying to
pull
the accused person who was holding onto the refrigerator which was
situated in the sitting room near the entrance into the
kitchen.
During that process of pulling of the accused by the two men, the
accused took a knife and stabbed the deceased. The deceased
called to
Pw1 - saying, "let us go, this person has finished me. The two
men left.

SELF-DEFENCE

The
accused admits that he stabbed the deceased with the knife. He claims
he did so in self-defence. By the nature of his defence
the accused
is admitting most of the material facts in this case. He claims that
his action is justified because of the circumstances
which prevailed
at the time he took the alleged action.

For the
accused to succeed in establishing his defence, there must be
evidence adduced before this court to show that the accused's
action
was to repel an unlawful attack already commenced or imminent, upon
his life or bodily integrity.

4

The
accused's action must be proved to have been directed at the attacker
to ward off the attack. [DEFINITION OF THE PRIVATE DEFENCE
BY CR
SNYMAN - CRIMINAL LAW, THIRD EDITION PAGE 97.]

BURDEN OF
PROOF

The
accused is charged with the crime of murder. The crown must proof
beyond reasonable doubt that the accused committed the crime
of
murder. WOOLMINGTON V D.P.P. [1935] A.C. 462. On the other hand the
accused must establish his defence on the lesser standard
of proof
than the crown. The accused is required to show the court on the
balance of probabilities that his action was justified.
SODEMAN V THE
KING [1936] 2 ALL ER 1138.

APPLICATION
OF THE LAW TO THE FACTS

The
accused allege that he was assaulted by the deceased and the crown
witness Pw1. Pw1 was whipping him with a sjambok while the
deceased
person was assaulting him by slapping him with an open hand and
punching him with fists. This attack took place at the
deceased
person's house immediately after the accused had excreted therein.
The assault was an instant cure for both the drunkenness
and sleep
which the accused suffered from at the time.

According
to the accused, at the time of this assault one MATETE knocked at the
deceased person's door.

5

He
enquired what was going on. He remarked that they have been
assaulting that person for a long time. He asked to be let in. The

deceased person opened the door to let MATETE in. Suddenly when that
door was opened the accused ran out. He claims he was escaping
from
the assaults. Pw1 claims that the accused was running away from his
feaces which he refused to clean at the deceased's house.

According
to Pw1, the deceased requested him to accompany him to the accused
person's house. The deceased pointed out that he did
not like to
sleep with that feaces in his house. Therefore he wanted to go to the
accused's mother to ask her to prevail upon her
son to come back and
clean that mess. Pw1 and the deceased therefore went together to the
accused's home. According to the accused
when he ran out of the
deceased's house during that assault, Pw1 and the deceased chased
after him. When he went out of the gate
of the deceased's home the
accused realized that the two men - Pw1 and the deceased were
following in hot pursuit. He out ran them.

UNLAWFUL
ATTACK

It is an
established fact that the accused was attacked. Pw1 told the court
that when he drew the attention of the owner of the
house that the
accused is defecating therein, the owner of the house went into the
bedroom where he came back with a sjambok.

6

As he
asked the accused to clean up his feaces he sjamboked him. Pw1 said
the accused was assaulted for his refusal to clean up.
The accused
claims that the sjamboking obstructed him from cleaning as it caused
him to ran away in order to safe his skin. When
the two men were
pulling him away from his home, he feared that they were taking him
back to the deceased's home and there continue
to assault him. It is
correct that they wanted him to go back to the deceased's home.

But,
according to Pw1, they wanted him to go back to clean up. The accused
resisted the pull by the deceased and Pw1 back to the
deceased's
home. He held on the refrigerator to resist their pull. There on top
of the refrigerator the accused person's mother
had placed a knife
which she was using during the day to scrap off the paint stains on
the floor of her living room which was being
painted on that day. The
accused took that knife and stabbed the deceased once.

I accept
that the accused had previously been assaulted by the deceased. The
medical form filled and signed by the doctor who treated
the accused
on the 23rd December 2002 was produced before court. The injuries set
out in this medical officer's report are consistent
with the evidence
of the accused that he was whipped and punched by his assailants.
According to the doctor the accused has suffered
multiple superficial
and inflamed linears.

7

There
were nine (9) such linears at the back and two on each thigh. They
average one centimeter width and (7) seven centimeters
long. Accused
had a bruised upper lip. All these injuries could have been caused by
a blunt object according to the doctor. At
the time the two men
arrived at the accused person's home, he feared that that attack
which they commenced at the deceased's home,
was continuing. When
they started pulling him away he feared that they have re-started the
assault which he escaped from at the
deceased's place.

He felt
the need to protect his bodily integrity. His first attempt was to
hold onto the refrigerator - hoping and intending to
hang on it as
fast and hard as he could in order to defeat the pull - away by the
deceased and Pw1 - back to the deceased's place.
Clinging to the
refrigerator did not help. The accused then took the knife that was
readily available on top of that refrigerator
and stabbed the
deceased once to stop him from pulling him away. S V. SIKALALA 1953 2
SA 568 A. He was faced with an immanent or
continuing assault.

WEAPON
USED

The
accused used the weapon which was readily available. REGINA V KOUKAMP
H.CT.LR. 1953 page 60 - 61. The evidence shows this court
that he had
no opportunity to run way or to look for a weapon to use.

8

The
weapon used by the accused when faced with two strong bigger and
older men than himself was the one he found at hand. REX V
MOTHE
MOLATO 1974 - 5 LLR 30 at page 32 - 3. this was a reasonable exercise
of his right to self-defence.

he is
found not guilty and acquitted. The two gentlemen assessors agree
with me on the fact finding in this case.

KJ. GUNI

JUDGE

Assessors
: Mr. Makhera

Mr. Khoboko

For Crown
: Ms. Ngcobo

For
Defence : Mr. Phoofolo

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