CRI/T/39/2002
IN THE HIGH COURT OF LESOTHO
In the matter between:-
REX
vs
LELOKO RATSITA
JUDGMENT
Delivered by the Honourable Mrs Justice A.M. Hlajoane on the 1st March, 2005.
The accused appeared before me charged with the crime of murder. It being alleged that upon or about the 9th day of March, 1993 and at or near Ha Rakolo, in the district of Leribe, the said accused did unlawfully and intentionally kill Malefetsane Rakuoane.
The accused pleaded not guilty to the charge of murder, and Mrs Kotelo for the defence conceded that the plea of not guilty was in accordance with her instructions. There had been a Preparatory Examination (PE) held at the magistrate's Court where evidence of nine
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(9) Crown witnesses was led.
Before this Court, evidence of four (4) Crown witnesses was led. The defence admitted evidence of the other four (4) Crown witnesses at P.E. and such admitted evidence was duly read into the recording machine to form part of the record in this trial. The admitted evidence was that of P.W.6, 7, 8 and 9 at the P.E.
The evidence of P.W.6 at the P.E., No.8133 Tpr Ramakau, was to the effect that; he was a member of R.L.M.P stationed at Tlalinyane Police Post. He was on duty on the 9th March, 1993 and accused arrived around past lunch. As the accused approached him he could see that his clothes were covered in blood. When he arrived, he told P.W.6 that he had done something wrong and handed over to him a knife.
P.W.6 asked him where the wrong was done and accused replied, 'Ha Ratsita'. He handed over to him an okapi three (3) star knife and said it was the one. He gave him an explanation about the knife. P.W.6 examined the knife and found it to be covered in blood all over. The witness seized the knife. The knife was handed in and labelled exhibit
P.W.6 followed the information he had received and approached
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the chief, and together visited the scene. When they got there the body was found lying down near a field, and had sustained injuries. P.W.6 stripped the body and found blood on it with several wounds.
The body according to P.W.6 had about eighteen open wounds. He showed that some of them were so open that one's hand could go through whilst others were just open wounds. Most of the wounds were on the chest. The body was then conveyed in Police vehicle to the mortuary.
P.W.6 found an iron rod on the scene, and it was brought before Court. The iron rod had been found next to the deceased with no blood on it. It was produced in Court and marked exhibit "2". P.W.6 had told the Court that, other than the blood that he saw on the accused's clothing, accused had not sustained any injuries, nor did accused inform him of any.
The witness had shown exhibit "2" to the accused and accused told him that it was his stick. P.W.6 then told the accused that the deceased was late. He cautioned and charged him of murder.
P.W.7 at P.E. Motoko Makara had told the Court that he resided at Ha Rakolo. He knew the deceased in his lifetime. He was his
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brother-in-law. He was in hospital in March 1993 where he identified the body of the deceased to the doctor who performed a post mortem examination. The deceased's name was Malefane Rakuoane.
Evidence of P.W.8 at P.E., Dr Seqhobane, showed that he was a Superintendent at Leribe Hospital. He carried out a post mortem on the deceased's body on the 18th March, 1993. The body was identified by Motoko Makara, P.W.7 above and another. He made written notes of his findings which showed multiple stab wounds. On the whole he found (18) eighteen stab wounds.
Three wounds on the head, one on the left thigh, one on the left supra clavicular and had gone through the heart, another on the left mammary side, also went through the heart and the rest on the chest. The conclusion reached was that the deceased died due to acute loss of blood. The report was handed in and marked exhibit "A".
The doctor showed, the injuries must have been caused by use of a sharp instrument. He referred to exhibit "1", the knife, and indicated that it could cause wounds of a similar nature. He said the degree of force employed was severe. He concluded by showing that all the wounds were very fatal, worst of all, those that went through the heart.
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D/Sgt Tshabalala, who was P.W.9 at the P.E. had shown that, he was a member of R.L.M.P stationed at Leribe. He had received a report from Tlalinyane Police on the 9th March, 1993. He proceeded to that place in Police van, where he was shown the body of a male adult. He conveyed the body to Leribe mortuary, and the body sustained no further injuries to the mortuary.
The Crown then called in 'Mathaele Rakuoaneas P.W.1 She told the Court that the deceased was her husband, and they were still staying together when deceased met his death. The deceased was suspecting that P.W.1 was in love with the accused. Accused had shown that the information came from his relatives but had asked the witness not to confront such relatives. The deceased repeated the same information again, and P.W.1 decided to call Nkala Rakuoane to her home as their relative to come between them.
According to P. W. 1 the deceased and the accused were friends as they belonged to the same Political Party. They were in a habit of visiting each other presumable to discuss matters concerning their Party. Deceased's brothers were present when P.W.1 had called Nkala, and before Nkala, they denied ever saying that the accused had an affair with P.W. 1. Before he left, Nkala asked the deceased and his wife to keep peace.
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It was only after some few days of that meeting, if we can call it a meeting, that the deceased confronted P. W. 1 that he had seen a woman in a red dress talking to a man on horseback and thought that that woman was P.W.1. The deceased might have been angry when he talked to his wife about this because, P.W.1 then said he even reported the matter to the Chief. P.W.1 had responded by showing that she could not have been that woman in red as she had on that particular day been at home for the whole day. Deceased was not convinced and even said he had witnesses.
The Chief called the deceased before him to ask him. Deceased told the Chief that some two boys were his witnesses who saw the woman. They were told to come the next day and Nkala was also invited. The accused was also present. The boys whom accused had said were his witnesses denied before the Chief that they ever saw P.W.1 with a man on horseback. They said they had only seen a woman who was cutting brooms.
The Chief resolved the matter by asking the accused and the deceased to stop visiting each other. The accused was plainly told that the deceased was complaining about his wife as he suspected accused to be in love with her. Though the accused denied the love affair with deceased's wife he nonetheless welcomed the suggestion of not visiting
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each other.
On that day, P.W.1 left home in the morning for work in RSA as usual. She would usually leave home at 5.00 a.m. and come back home at 5.00 p.m. It was after she had crossed the river coming to her home that she met a mentally disturbed somebody talking about a fight between the accused and the deceased. When P.W. 1 arrived home she found no one at home except her children who also were talking about the same rumour as the person she met after crossing the river.
The witness showed that it was after about a month since the meeting before the Chief concerning deceased's complaint and the accused was no longer visiting deceased's place. It would seem that the deceased had bought some maize from the accused and the accused had to come to deceased's place and collect the empty bag. When accused arrived at deceased's place, he found the deceased not at home but only P.W.1. Deceased had visited Ha Masupha and P.W. 1 asked the accused to wait for the deceased. When deceased arrived, he did give the bag to the accused.
Under cross examination, the witness showed that the deceased did not have any problems when he found the accused at his home when he arrived home from Ha Masupha. When deceased arrived home, the
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accused explained to him why he was at his place and even told him that P.W.1 had encouraged him to wait for him. The witness further explained that she knew the accused well as they resided in the same village. P. W. 1 said that she was not aware that the accused had his right leg amputated from the knee downwards, but had seen that accused was limping. Accused had once worked in the mines, but the witness was not sure if the injury on accused's leg happened whilst he was still working in the Mines.
P.W.2 Lebajoa Nketsi told the Court that he was semi-literate as he only went up to standard 2 at school. He knew the accused well as they stayed with him in the same village. It was during the third month in 1993 when he saw the accused and the deceased together. He was looking after his cattle. They were about 150 to 200 metres away from him when he saw them.
The witness showed that he saw the accused grab the deceased, fell him down, get on top of him and started stabbing him. He stabbed several times. The witness took it that the accused was using a knife, as he witnessed how he was stabbing. The witness, a 27 years old man, ran to call his father. The witness saw the accused get of the deceased as his father emerged from a distance. He had shouted at his father for help.
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The witness did not proceed to where the stabbing took place, instead after calling his father he went back to his cattle. He saw his father help the deceased. According to this witness, his father was the first person to get to the deceased. P.W.2 said after the accused got of the deceased, the deceased rose from the ground and sat for sometime after which he fell back to the ground. P.W.2's father used some bandages which he got from women who had come to the scene. Many people then gathered at the scene.
P.W.2 never approached the place where the deceased had fallen, maybe he was scared. After rising from where the deceased had fallen, the accused went away to his home. Before the stabbing, the witness said he had seen the accused and the deceased standing together for something like 5 minutes. During the stabbing the witness observed that the accused was using.a knife. According to this witness all these happened at about 1.00 p.m.
Early in his cross examination P.W.1 was asked to estimate the time he had spent in the witness box, and he said it was difficult to estimate. An observation was then made that he was unable to estimate when in fact he had been able to estimate time of the events that took place in 1993, almost ten years ago. He clarified in cross examination that he came to the conclusion that accused was using a knife in stabbing
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the deceased considering the way the accused was executing his act.
The witness had earlier on shown that he was about 200m away from the accused , as there was a donga in between them and the accused was on the other side of that donga. There was also a rock near the village, but was not between them. There were no trees between them except for some aloes inside the donga. P. W.2's cattle were behind him as he was looking after them. They were coming after him as he was still walking.
According to this witness, it was the accused who called the deceased by saying "Malefetsane come here." The witness said, they were engaged in some conversation for something like 5 minutes, but could not hear what they were saying. He then saw the accused get hold of the deceased and fell him to the ground. P.W.2 said that before the accused called the deceased, he had been looking after his cattle. They were facing each other as they talked.
The witness was surprised to learn for the first time that the accused has a wooden leg and that he was limping. This has been the case since 1993. He also learnt for the first time that the accused was using an iron rod to assist him when walking. It was also pointed out to him that accused's leg could not bend. During the stabbing the witness
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When going to call his father for help, P.W.2 pointed out that he did not have to go and cross the donga but had to go back for some distance of about 250 metres. The witness's father was on a hillock digging out some medicine. He had to come up the slope though not a steep slope when going to where P.W.2 was. His father who was not an old man, took something like seven minutes to get to the witness.
The cross examination to the witness suggested that the accused's story was that, as he was looking after his cattle on that day, the deceased approached him from the direction of deceased's sister's house. Deceased walked towards the accused and asked accused as to what he was saying. The exact words used by the deceased were, "you have made my wife yours." To this P.W.2 replied by showing that things did not happen that way, but that he did not hear what accused and deceased were saying to each other.
The defence story was also going to be that, it was the deceased who started manhandling the accused and even felled him down. That it was the deceased who took out the knife and tried to stab the accused with it, saying these words, "today I am going to kill you". All these were denied by P.W.2.
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P.W.2 knew the accused well but was not sure whether or not he was left handed. P.W.2 insisted that from where he was standing, he could clearly see what was happening at the scene.
The Court had adjourned for purposes of going out on an inspection in loco. The place was at Ha Ratsita at Ha Rakolo. The observations were made in the presence of the accused and his Counsel, the Crown and her witness, P.W.2, Gentlemen Assessors, the Registrar, Interpreter and Recorder.
The observations were as follows:
- P.W.2 pointed out to us the place where he said the fight took place.
- He also showed us the direction from which the deceased came as he approached the accused, which was the direction from his sister's place one 'Mapoloko Makara.
- The witness demonstrated to us as to how the accused and the deceased stood as they were talking to each other. They were facing
- The accused on the other hand pointed out a different spot where
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he said he was standing, 18 paces away from that pointed out by P.W.2. It was at one Sekoato-Koato's maize field. And according to the accused that was the spot where the fight took place. He also pointed out the place where his (accused) cattle were grazing behind him, which was 4 paces away from where he was standing.
Accused also showed us a spot, different from that shown by P.W.2, where he (accused) said P.W.2 was standing. It was a place out of view from where the accused and the deceased were. It was a place behind a hillock, 32 paces from that shown to us by P.W.2. Accused also showed us a field over which P.W.2's cattle were scattered.
- P.W.2 showed us the spot from where he called out his father, and also the place where his father had been digging out medicine or herbs.
- The direction taken by his father when he approached the scene. He had gone passed a small plateaux on the other side to where P.W.2 had been standing.
- The witness had left the spot where he had been standing to go and drive away his cattle which had been trespassing in the field, and
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then went back to where he had been standing.
- Deceased's sister's place is near the place where the fight took place. The yard had two gates on opposite sides.
- The direction which the accused followed after the fight to his home.
The donga the witness had talked about which was in between where he was standing and where the fight took place. There was a dam lower down that donga.
As the cross examination continued, P.W.2 pointed out that the accused was looking after his cattle at a maize field which was a metre high. This was in March of that year. The witness denied that the accused was in the company of a small boy who even took the cattle for drinking. Instead, P.W.2 showed that it was the accused himself who took the cattle for drinking. The witness denied also that the deceased and some other 3 people had earlier on passed near where the accused had been standing, taking his (deceased) cattle to his sister's yard. He said the deceased only drove his animals to the dam.
P.W.2 showed that the deceased went to where the accused was
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because the accused had called him. P.W.2 did not hear deceased ask the accused as to whether the accused still had his wife (deceased's) as his (accused's). He denied that it was the deceased who started assaulting the accused with a whip. What P.W.2 observed was the accused holding the deceased and that he felled him down.
According to P.W.2 deceased was older than the accused. P.W.2 was not aware that the accused had a wooden leg. (At this juncture the accused demonstrated to the Court that he had a wooden leg from below the knee by putting off the wooden part). Accused's story would be that, there was just no way he could have managed to fell the accused down considering the incapacity he had. But P.W.2 continued to show that, not only did accused fell the deceased down, he even pinned him down with his knee.
P.W.2 denied that it was the deceased who first took out the knife, but showed that it was the accused who took out his knife and stabbed the deceased with it. It was the deceased's life which was in danger as the accused was the one on top with a knife in his hand. He concluded by saying that he did not hear the conversation between the accused and the deceased, he only heard the accused calling out the deceased as he was shouting.
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P.W.3, Mokuru Nketsi told the Court that both the accused and the deceased lived with him in the same village, and were older than himself. He is P.W.2's father. On the day in question, P.W.2 had shouted to him that accused was killing a person. He rushed to the scene and found the accused on top of the deceased. He had pinned him to the ground. As he came closer the accused ran away. It was P.W.2 who raised an alarm. He saw the deceased rise and sit down. He helped him by trying to stop the bleeding using the bandages from some women who had rushed to the scene. He noticed several wounds on the deceased's body, particularly on the chest. He was the first person to come to the scene.
In describing how the accused had pinned the deceased to the ground, P. W.3 explained that, accused had his knee on deceased's belly. The deceased passed away before the Police came to the scene and P.W.3 covered him with a blanket. Police then came to the scene.
Under cross-examination, P.W.3 explained that P.W.2 was standing near a plateaux as he witnessed the fight as there was nothing that obscured his vision. He even told the Court that he could still see P.W.2 from where he was digging his medicines. The witness was quite aware that the accused had a wooden leg but showed that nonetheless, accused could still run. This witness and the accused are related as
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P.W.3's son is married to the daughter of accused's sister.
P.W.4 Malefetsane Jonathane as the Chief of the area, knew both accused and deceased well as his subjects. Deceased had been before him more than five times with the same complaint of some love affair between the accused and deceased's wife. Deceased was also complaining that the affair was making his life miserable, but accused and deceased's wife were denying that there was anything between them. According to this witness, it was only a week after their last meeting over that issue when deceased met his death. After he had received the report he too rushed to the scene and found the deceased covered in blood. People had already gathered there. It was the same witness who sent for the police. He further explained that, he was not aware himself of any love affair between the accused and the deceased's wife.
The cross examination revealed that the accused and the deceased were well behaved for the many times that P.W.4 had called them before him. The two have been staying at the same village all the time as none of them worked away from home. The deceased never said he ever saw the accused and his wife together in some suspicious or compromising situation. Deceased was only saying that the accused was visiting his home. Though deceased's wife had said her husband and the accused
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belonged to the same political party, P.W.4 said that was not the case.
The accused would go to deceased's place when deceased was there even in his absence. According to P.W.4 deceased had always been asking accused to stop visiting his place but that the accused would not listen. According to this witness, the peculiar feature about deceased's wife was her tidiness. P.W.4 said the woman was the second best in the whole village in tidiness.
After the close of the Prosecution's case, the accused chose to go into the witness box to give his evidence. The accused after being sworn-in told the Court that he lived at Ha Rakolo. That the relationship between him, deceased and his wife was just a neighbourly kind of relationship, as people also belonging to the same Political Party, BCP.
This witness was aware that the deceased suspected that he was in love with his wife. He considered the suspicion to have been unfounded.
Accused used to visit the deceased's place when he was there at home, but when he found him absent, he would go back home. The main reason for visiting the deceased was for discussing matters concerning their party and strategising on ways and means of attracting more people to their Party.
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The accused did not dispute that he was taken before the Chief to explain about his relationship with deceased's wife. He only denied that he was called before the Chief on so many occasions. He had stopped visiting the deceased's place after the meeting before the Chief.
According to the accused he was going to water his animals on that fateful day. He took his animals to the dam which we saw when the Court had gone out on inspection in loco. The deceased had been sitting at the home of one Malefetsane Makara, looking after his animals. The accused who at that time had asked a small boy to drive the animals home, saw the deceased leave the yard coming towards him.
Accused said as the deceased was near him, he asked him (accused) as to what he was saying. The reply from the accused was that he was only telling the small boy to drive the animals home. He then heard deceased utter these words, "Oh, is it because of this wife of mine whom you have turned to be yours (called his mother's privates parts), today is your last day, I am killing you."
Though deceased had a sjambok, accused saw him take out a knife and coming even closer to him. Accused had an iron rod which he used as his supporting stick. The rod fell to the ground, but the accused was afraid to pick it up because of the knife in deceased's hand. Accused
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then he rushed at the deceased in trying to defend himself, grabbed the hand which held the knife.
The accused further told the Court that he was the first one to fall to the ground, and this allowed the deceased to come and ride on him like riding on a horse. He then said, deceased pinned him down with his knee. They then struggled over the knife which ended up falling near where the accused had fallen. By that time the deceased was still on top of the accused. The accused hurried to get the knife and started stabbing the deceased with it, and this he did whilst the deceased was still on top of him.
Accused pointed out that since he was scared, he stabbed randomly at the deceased. He continued stabbing till he managed to free himself from under the deceased. He said he did not look at the deceased after he had freed himself, but took the knife and went away. He learned of the deceased's death the following day. Accused admitted having used the knife in stabbing the deceased. He even surrendered himself together with the knife to the Police.
Accused expressed his state as being remorseful for what he did as it was his first experience. He surrendered himself to Police same day. Accused did not deny evidence by P.W.2 that in their struggle with
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the deceased, he fell the deceased down, and that P.W.2 could see everything that happened from where he was standing. He only disputed
the evidence that said he was the one who was on top of the deceased as it was the other way round. He also did not believe the story by P.W.3 that he saw him stabbing the deceased.
In cross examination, the accused told the Court that he was struggling to free himself from the deceased who had pinned him down. According to him, he was the first one to fall to the ground, and as the deceased remained standing, accused still held his wrist with a knife.
When asked to clarify this point of his falling, accused showed that they both fell to the ground. He then said, the knife fell from deceased's hand after both of them had fallen. Deceased had fallen on top of accused and the knife had fallen near accused's face. The accused had fallen on his right side and used his right hand to pick up the knife.
After being in possession of the knife the accused started using it to stab the deceased violently and did not count the number of times that he struck at the deceased. Accused could not deny when he was told that deceased had injuries on the chest and also on the head. He explained this by saying that he could not deny anything as he had lost his senses. He could not deny that he was responsible for all the wounds
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found on the body of the deceased.
It was suggested to the accused that the injuries on the deceased person only confirmed that whoever inflicted them was on top of him. Accused still insisted that he was under and not on top of the deceased. In explaining how the deceased got stabbed on the head, the accused showed that deceased could have been stabbed as he was bending over him. As for the wound on deceased's knee, accused said it could have been when the deceased had fallen over him as his knees were near him. Accused took the blame for having omitted to mention that the deceased at some stage lowered his head towards him.
The accused demonstrated how the deceased fell over him with one knee on his thigh and the other on the waist, the left side of his waist, as accused had fallen on his right side. Accused's response was that he never saw P.W.3 around, he only saw P.W.2 before the fight started. He denied that P.W.3 ever witnessed the fight as he did not see him there, but said he did not bother to look around as he concentrated on the fight. He did not again look around him even after the fight but rushed to the Police.
Accused continued to show that he was nervous as the incident appeared bad to him. He did not only stab once on the chest as the
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deceased overpowered him. Even after he had taken possession of the knife he continued stabbing the deceased as he said he had lost his senses.
Accused concluded by showing that as he was stabbing he had supported himself with the right elbow and his shoulder.
This being a murder case, the onus was on the Crown to prove the essential elements of the crime of murder and also prove that it was the accused who in fact committed the offence. The salient questions being whether the killing of the deceased was intentional and unlawful and whether it was done by the accused.
Looking at the evidence placed before this Court, could it be said that there has been proof that death of the deceased was the result of a voluntary act of the accused? According to the accused, it was the deceased who came to him asking the accused as to what he was saying. P.W.2 had also said that it was the deceased who approached or went to the accused. But P.W.2 gave this approach by the deceased a qualification by saying that it was because the accused had called the deceased.
From the evidence on behalf of the Crown we learned that it was the deceased who had been complaining that the accused was inlove
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with his wife. Taking it from there, who then could be asking another as to what he was saying? Would it not be the accused asking the deceased as to what he was saying, or would it be the deceased asking? The accused had approached the chief for intervention and members of deceased's family were invited by the deceased's wife. In all those meetings the accused denied any relations with deceased's wife. Even when giving evidence before this Court, the deceased's wife denied that she had any affair with the accused.
P.W.2 is the person who claimed to have seen the fight from the beginning. He saw the deceased approach the accused though he could not hear what they were saying to each other. The Court even visited the place of the alleged incident and saw that P.W.2 must have seen from where he showed he was standing as there were no obstacles that could have obscured his view.
We learned from this witness, P.W.2, that the deceased was the one who approached the accused. This witness struck me as a truthful witness in that aspect as he could clearly see from where he was standing. The accused also said it was the deceased who approached him. As to how the fight started, it was the word of this witness against that of the accused. But it had been established that the deceased had been complaining that the accused was in love with his wife.
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It could have been possible that the accused could have started the fight by attacking the deceased for accusing him of having an affair with his wife. It could also be the deceased attacking the accused for having an affair with his wife. But what came out in cross examination to P.W.2 was that the deceased was the one who first insulted the accused passing a remark that accused had made his (deceased's) wife his (accused). It was the deceased who had always been complaining that the accused was having an affair with his wife. He even falsely fabricated stories concerning two boys whom he said had told him they had seen his wife dressed in red and in the company of a man on horseback. The two boys when called before the chief denied ever saying that but only remembered having seen a woman cutting grass for making brooms.
When one listened to the evidence in this case would be inclined to consider the deceased as a jealous husband. The Court even had to ask if there was something that was peculiar with deceased's wife and was told that she was the second most in tidiness in the whole village of Ha Rakolo. This came from the Chief.
The accused did not deny that he was responsible for all the multiple stab wounds on the deceased. His only contention was that he was acting in self defence. The Crown had been saying the accused was
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sitting on top of the deceased as he inflicted the wounds. The accused on the other side said it was the deceased who was on top. The postmortem report revealed that there were 18 wounds in all. Most injuries were on the chest area, fourteen on the chest area, three on the head and one on the left thigh. There were some wounds which had gone through the heart, and the deceased died due to acute blood loss.
The accused pleaded self defence, and for this to succeed there are a number of issues to be considered. The Crown was saying the accused was the one on top and the accused saying the deceased was on top. P.W.2 and P.W.3 said these for the Crown and the defence by the accused himself.
To determine this issue, we have to look at the injuries sustained by the deceased. Two of the Crown witnesses did see that it was the accused who was on top of the deceased and considering the number of wounds that the deceased sustained on the chest, confirms that it was the accused who was on top. The accused was becoming evasive in some crucial areas of his evidence. He had said in his evidence that he was the first one to fall to the ground allowing the deceased to come and ride on him and that both struggled over the knife which fell in the process. But under cross examination he said they both fell to the ground and the knife fell from the deceased after they had both fallen.
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The defence contented that it could not have been possible for the deceased to have sustained an injury on the left thigh if at all the deceased was the one below. But I don't see how that could not be possible because like one using a whip on a horse, there could also be backwards movements of the hand whilst stabbing. There can also be such movements in stabbing as possibly the one below would be trying to raise his knees in an effort of trying to free himself by pushing the one on top away.
The Court took it that the three wounds on the head must have been caused by the accused as the deceased was moving his head from side to side with pain as he was being stabbed.
The accused said, it was the deceased who had possession of the knife from the beginning. That might have been so, but the deceased never caused any injury on the accused. At least if the deceased was on top with a knife in his possession, he could have at least caused some kind of an injury on the accused. The accused, a disabled man with a wooden leg amputated from a little below the knee. The accused had even said as he was stabbing he had supported himself with his right elbow and shoulder. How then could he have managed to have stabbed so many wounds in that position, his story is not worthy of belief.
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The Court was told that the deceased was a little older than the accused. The accused was asked to demonstrate and show to the Court the disability on his leg. He was able within seconds to throw the wooden leg on the floor and immediately fitted it back. He was very active and fast in those movements. Which portrayed to the Court a person who could not be hampered in his movements by his disability.
The deceased out of jealousy might have been the aggressor, but when the accused had managed to have the knife from him and sat on top of him, he was no longer the one in danger but the deceased. The deceased could not have all the time lowered his chest and head to the accused to allow him stab him. The story of the accused could therefore not be believed that he was the one below .
I hold a different view that this case is distinguishable from CRI/T/26/84 R v REMAKETSE NTABE (unreported) cited by the defence in that, the facts in that case are more or less similar to the present. In both cases,
- the fight was fuelled by jealousy.
- The deceased was the aggressor,
- The deceased had the knife but the accused took it from him,
- The accused was on top of the deceased.
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The accused though wanted to say was acting in self defence, he could not be said to have acted within the bounds of that defence. The accused might have acted in self defence but exceeded the bounds of that defence, considering that he was the one who was on top and considering also the number of wounds inflicted; see BELEME v R 1990 -94 LAC 607. He had already disarmed the deceased. His only option was to run for his safety or thow that knife away. Accused's story has been the most improbable and unworthy of belief. The accused lacked the intention to kill, but was reckless in stabbing the deceased as he did.
In the result the accused is found guilty of culpable homicide. My Assessor agrees with my findings.
The Defence addressed the Court in mitigation of sentence after the Court had been informed by the Crown that the accused has no record of previous convictions. The usual factors of being a bread winner with children to look after. All those have been about the personal circumstances of the accused. Nothing was said about the deceased or his family about maybe extending a helping hand in the funeral arrangements or assisting the deceased's family in anyway without necessarily admitting any guilt or liability.
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The Court has nonetheless considered those mitigating factors in passing sentence.
Sentence: Eight (8) years imprisonment, of which five years is suspended for a period of three years on condition that accused is not convicted of a similar offence involving violence to another person during the period of suspension.
M. HLAJOANE
JUDGE
For Crown: Ms Maqutu (Ms Makoko)
For Defence: Mrs Kotelo (Mr Moshoeshoe)
