CRI/T/4/2004

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU In the Matter of:-

REX

V

MOLUPE
MATLANYANE

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 21^st
November 2005

On the
1st December 2004, accused appeared before me summarily on a charge
of murder it being alleged that on the 15th June 2003
he unlawfully
and intentionally killed one Moeketsi Matsepe. He pleaded not guilty
to the charge. The matter proceeded well into
the next year and was
eventually finalized on the 6th June 2005.

To prove
its case, the crown led the evidence of seven (7) witnesses and the
defence admitted two witnesses' statements to wit,
that of the
accused's uncle and the police officer who effected the arrest, as
well as the post­mortem report.

1

Facts
which are common cause are that on the day in question, the deceased
and the accused had an altercation at the Blue Mountain
Inn (BMI)
hotel whereby the deceased assaulted the accused by punching him to
the ground and kicking him after he had asked the
latter to give him
a beer.

After the
two were separated, the accused and his friends proceeded home and
whilst on the way, the deceased and his companions
who were traveling
in a vehicle which was driven by P.W.6 reached them next to PEP
Stores along Mofolo Street. Upon alighting,
the deceased started
hurling insults in the general direction of the accused and his
companions whilst at the same time crossing
the road to where they
were. When he reached them and stopped in front of the accused, the
latter stabbed him with a knife on the
chest. The deceased was taken
to hospital whereby he was certified dead upon arrival.

FACTS IN
DISPUTE

It was
the Crown's case through its witnesses that the accused had
threatened to stab the deceased after their initial confrontation
at
the hotel. They testified that he had also told one Motlatsi Khomari
(P.W.2) that he

2

was going
to waylay the deceased at Mphahama's and stab him as he disrespected
him yet he was the younger of the two.

It was
the Crown's further evidence that when P.W.2 and P.W.3 were walking
home, they found the accused standing at Mphahama's shop
and upon
enquiring why he was standing there, the latter told them that he was
waiting for the deceased. The witnesses testified
further that whilst
trying to convince the accused to leave and try to resolve the matter
the following day, P.W.4 arrived and
they pleaded with him to talk to
the accused and that the latter managed to convince him to go home.

It was
the Crown's further evidence that when the deceased was being driven
home in P.W.6's vehicle they reached the accused and
his companions
next to PEP Stores. The former alighted from the vehicle, hurled
insults in the general direction of the accused
and his group, walked
over to where the latter were and stopped in front of the accused
with his hands raised up. It was then that
the deceased was heard to
say that the accused had stabbed him. He then went back to the
vehicle which had stopped after he alighted.

3

On the
other hand, the defence's evidence consisted of the accused's
testimony and that of D.W.2. They testified that after the
initial
altercation at BMI, accused went home and on the way next to PEP
Stores, the deceased and others who were traveling in
a vehicle that
was driven by P.W.6 reached them whereby the deceased alighted,
hurled insults in their general direction and crossed
the road to
their side.

When he
reached the accused, he turned and went back to the vehicle, leaned
over a window and asked for a firearm. He then went
back to the
accused with his hands at his back whereby the accused upon believing
that the deceased was going to use the firearm
that he had asked for
to shoot him, stabbed him in self defence.

From the
evidence as a whole, it is not disputed that during the first
altercation, the deceased was the aggressor. It is therefore
credible
that the accused was angered and hurt by the unprovoked and
humiliating assault The Court therefore accepts the evidence
that in
his anger he did threaten to stab the deceased. Some of the Crown
witnesses even testified to the fact that the deceased
was a bully
who was also fond of using swear-words.

4

However,
the Crown witnesses also testified that the accused was eventually
convinced to leave Mphahama's and walked on home. Within
this
scenario, the question which this Court has to determine is whether
the accused intentionally stabbed the deceased thereby
causing his
death.

In
answering this question, the Court takes into account the evidence in
its totality. Firstly, the evidence showed that the deceased's

friends went back to the hotel and told him that the accused had
threatened to stab him with a knife. Secondly, they all got into
the
vehicle driven by P.W.6, purportedly to take the deceased home.

The
evidence also established and the Court also observed when it went
for an inspection of the place that there were more than
one route
that they could have taken to reach the deceased's home but they
opted for the one along which the accused and others
were alleged
walking. Their explanation to this conduct was that the other routes
were in a bad state.

Assuming
that this is true, the scenario that followed belies this fact. For
instance, when they got near Pep Stores, the deceased's
door was
opened for him, he alighted and instead of getting into the passage
that would take him

5

home, he
crossed the road whilst at the same time swearing at people by their
mothers' private parts, the vehicle did not proceed
on its way but
clearly waited for him, he stopped in front of the accused with his
arms outstretched and that is when the stabbing
tooks place.

From this
chain of events, it is obvious that the deceased and his companions
were not going home. Instead, what this Court believes
happened is
that, having heard that the accused had threatened to stab him with a
knife, the deceased and his mates called his
bluff and went in search
of him, clearly looking for a fight, especially because they had
already seen that the deceased overpowered
the accused at the BMI.

In
addition, even if the Court were to believe that the deceased was
indeed being driven home at that time, the fact that after
he
alighted, the vehicle stopped and did not proceed on its way is
further evidence that him and his group had clearly gone out
to find
the accused. The others waited for him to deal with his prey. It is
most unfortunate that this led to him losing his life
as a result of
the stab wound inflicted by the accused.

6

But be
that as it may, the Court also rejects as totally false, the
defence's story that when he reached the accused, the deceased
simply
turned back to the vehicle and asked for a firearm and came back with
his hands behind his back. The simple question is
why would the
deceased have left the firearm in the first place and waited until he
reached the accused only to turn back again
without a word and demand
same in a very loud voice?

Secondly,
the deceased had clearly overpowered the accused at the BMI and I do
not believe there was any need for him to go and
ask for a firearm
especially in the absence of any evidence suggesting that at this
particular time he had reason to arm himself
against the accused.
Needless to mention, no firearm was found on his person and/or
produced before this Court as proof of this
allegation.

Thirdly,
even assuming that he did go back for same, it is not logical why he
would hide it behind his back when he had allegedly
asked for it in a
loud voice that could be heard by the accused from across the road.
This is especially the case because we are
talking about someone who
was clearly a bully and unafraid of what other people thought of him
as evidenced by the insults that
he hurled in the general direction
of people who were walking

7

along
that street. In the light of these factors the defence's version in
so far as how and why the stabbing took place just does
not add up.

Having
said this, I however do agree with Mr Mohau, Counsel for the

defence's
submission as stated in his Heads of Argument that, a Court must
investigate the defence case with a view to discerning
whether it is
demonstrably false or inherently so improbable as to be rejected as
false as stated in the authorities quoted to
this Court.

That is
precisely what this Court has done and it is after so investigating
herein, and on the basis of the reasons as stated above
that I find
their story as inherently so improbable that I reject it as totally
false. What I believe happened is that since he
had already
experienced that the deceased physically overpowered him, the accused
decided that he would deny him that opportunity
this time around and
he resorted to stabbing him with the knife as a preemptive measure.

This
brings me to the next question whether in stabbing the deceased the
accused had the intention to cause his death. In his Heads
of
Argument, Counsel for the Crown, Mr Seitlheko submitted that the
accused's life was

8

in no
imminent danger regard being had to the fact that the deceased
stopped in front of him with his hands outstretched. Having
rejected
his story as false that the deceased had his hands behind his back
leading him to believe that he was hiding the firearm
he had just
asked for, I agree with Mr Seitlheko's submission that accused's life
was not in immediate danger.

However
under the peculiar circu mstances of that night I believe that he
thought he was in danger of another assault and/or injury
to his
person since the deceased who was clearly an aggressive bully had
already badly assaulted him at the BMI for no justifiable
reason and
had followed him home.

I however
on the evidence before the Court cannot deduce any intention to kill
on his part since the Court was told and accepts
the evidence by the
Crown witnesses themselves that although the accused had threatened
to stab the deceased, he was eventually
convinced to go home and was
indeed doing so when the deceased and his companions went in search
of him and found him next to PEP
Stores.

9

From the
evidence, I find that it is actually the deceased himself who was
spoiling for a fight as evidenced by his conduct upon
reaching the
accused along Mofolo Street. When he alighted from the vehicle, he
was clearly still in a belligerent mood because
he was hurling
insults and generally terrorizing the accused. Even the outstretched
arms were under those circumstances, a blatant
challenge on the
accused. This was also P.W.2's observation, one of the eyewitnesses
who said as much under cross-examination.

I
therefore do not believe that under such conditions, when he stabbed
the deceased, the accused had the intention to commit murder.
A
distinction can therefore be made between this case and that of R
vMahloko Mahloko in CRI/T6/03 where I found that the accused
therein
had the dolus eventualis to murder the deceased when he stabbed him
with a knife unprovoked and having taken the latter
unawares.

In casu,
I believe that rather, the accused acted hastily and recklessly for
he ought to have known that a weapon as dangerous as
a knife, when
used on the delicate area of a person's chest might cause his death.
This is especially because the deceased was
clearly not toting any
weapon in spite of what the

10

defence
would have liked this Court to believe. As such, the accused was
indeed reckless in his actions.

His moral
blameworthiness is further lessened when account is taken of the fact
that all of them had undisputedly been drinking
heavily that night
and as a result, obviously none of them was thinking straight.

Within
this scenario, it is my opinion that if this Court were to find that
the accused had the intention to kill the deceased herein,
it would
indeed be adopting the stance of an armchair critic who has the
luxury and/or benefit of assessing matters under totally
different
circumstances, a position which Courts are cautioned not to adopt as
stated in the case of R v Patel 1957 (3) SA 121
at 123 and other
authorities quoted therein.

For these
reasons, I believe that the appropriate verdict would be guilty of
culpable homicide and I according so convict the accused.

My
Assessors agree.

11

SENTENCE

In
passing sentence I have taken several factors into account including
those raised by the defence counsel in mitigation. These
are that the
accused is a first offender and has shown remorse for what happened
as evidenced by his having reported the matter
to his uncle and
taking the police to where he had disposed of the knife. The incident
has also left an indelible mark that will
haunt him for the rest of
his life. He is still a young person who is said to have been
furthering his studies in order to make
something for him-self in
life.

I am
however also cognizant of the fact that the family of the deceased
has lost a son in the most unfortunate and unnecessary circumstances

and they want to see justice served. I am also enjoined as the Court
to take into account the interests of justice and show my
displeasure
in people taking the law into their own hands such as happened in
casu, even if the deceased might have been a notorious
bully who had
earlier assaulted the accused for no reason at all as the evidence
showed. Self-help can never be sanctioned by the
Courts.

12

I also
take into account the fact that when the accused left home that night
it was with the intention to have a good time with
his friends and as
the evidence stands, he never had any intention to get into trouble
or hurt anyone. He was just befallen by
misfortune culminating in the
loss of life at his hands.

I also
observed him from the start of this case to its conclusion and was
impressed by his demeanour. He displayed humility and
remorse
throughout the trial and I am not of the opinion that he is a
hardened criminal who deserves a custodial sentence Last
but not
least, all of the concerned people herein had been drinking a lot on
that night arid the accused acted under the influence
of alcohol and
it is a well known fact that in such conditions people do things they
normally would not do when sober.

I
therefore sentence the accused to pay a fine of M5000. 00 or six (6)
years in prison in default of payment. Half of this sentence
is
suspended for three (3) years on condition that the accused is not
convicted of any offence involving violence committed during
the
period of suspension.

13

N.MAJARA

JUDGE

For the
Crown : Mr Seitlheko

For the
Defence : Mr Mohau