CIR/T/114/2004

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
Matter Between:-

REX

V

KHAUTA
LEBITSA

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 22^nd
November 2005

In this
case the accused is charged with murder it being alleged that on the
24th November 2001 he unlawfully and intentionally
killed one Thabang
Ralitabo. On the 27th September 2005, he pleaded not guilty to the
charge put to him.

To
support its case, the crown called four (4) witnesses to the stand
whilst the accused's evidence on the other hand consisted
of his sole
testimony. The evidence of P.W.I Mphasa Letsie Maholi was that on the
day in question he and other youngsters were
attending a choir
practice at one 'Mapinare's place. The accused was part of the choir.
The deceased on the other hand was standing
a few paces away as one
of the spectators.

1

P.W.I
testified that he saw the accused leave the choir and go to the
deceased whereby he saw them manhandling each other in what
he
initially thought was play. He however saw the deceased fall down and
the accused immediately running away from him.

It was
P.W. 1 's further testimony that he ran over to where the deceased
had fallen upon realizing that the latter was unable to
stand up. He
tried to help him up and also called out to P.W.2 to come and assist
him but they both did not succeed. It was then
that he realized that
the deceased was bleeding from an open wound on the head.

P.W.2's
testimony corroborated that of P.W.I that as he was going to the
choir practice he saw two people struggling but at that
time did not
identify them. As he went past them, he heard P.W.1 call out to him
for help and when he looked back he noticed the
latter trying to help
the deceased up. He then noticed accused running towards the
direction of his home. He went to assist P.W.I
and noticed that the
deceased had sustained an open wound on the head and was bleeding.
They then agreed to call an elderly person
by the name of Khooana who
lived nearby. The said Khooana told them to go and call one
Setlabocha.

2

P.W.3
also testified that on that night he was at the choir practice with
the accused and others when he saw the latter leave the
choir and
move towards the deceased who was standing not very far away from the
choir. His testimony was that although he did not
see what happened
as he was singing, he next saw the deceased falling down and the
accused running away. According to his evidence
he also tried to
assist the deceased get up and noticed that the latter was bleeding
from an open wound on the head.

All the
three witnesses testified that at that time the deceased was no
longer able to speak or stand up. Under cross-examination,
P.W.3 told
the court that he had earlier witnessed the accused and the deceased
fighting verbally. According to his testimony the
two were
reprimanded and the altercation ended there.

The
evidence of P.W.4 the investigating officer was to the effect that
after his office received a report about this incident he
went out to
the village of ha Maholi and found accused at home. He administered
the standard caution whereupon the accused explained
that he had put
the knife with which he had stabbed the deceased in the latter's
pocket. He then arrested the accused, gave him
the charge of murder
and then released him to the custody of his parents because of his
young age. When answering questions put
to him by the defence
Counsel. Mr Lesuthu during cross-examination, the witness told the
Court that the knife was never recovered.

In his
defence, the accused told the Court that the deceased had attacked
him first with a stick which he managed to grab. It was
then that the
deceased pulled out a knife which the accused also disarmed him of
and proceeded to stab him with it in self-defence.
It was the
accused's further testimony that the deceased used to bully him
around and that even on the day in question he had earlier
on
insulted him over a packet of biscuits and later on at the choir
practice.

The
accused further told the Court that despite several attempts to
bring, the two of them together to resolve the acrimony, the
deceased
did not desist from his bullying tactics.

From the
evidence, it is not disputed that it is the accused that inflicted
the stab wound that eventually led to the death of the
deceased,
"What is in dispute is now the fight started and whether the
accused acted in self-defence at that material time.

4

The three
civilian crown witnesses all testified that they saw a struggle
between the accused and the deceased. However none of
them said
anything about seeing a stick either during the scuffle or even after
the accused had stabbed the deceased.

In
addition, the evidence of the crown insofar as the fact that it is
the accused that left his place in the choir and went to the
deceased
was not refuted. What the Court found amazing is the fact that the
accused's evidence was not corroborated by anyone to
strengthen the
fact that at the material time he was indeed attacked by the deceased
with a stick and the said knife yet there
was a sizeable group there
present on that night.

From the
whole of the evidence as it stands, the Court has no reason to
disbelieve the evidence of the three crown witnesses. This
is more so
because none of them pretended to have seen how the fight started or
that it was actually the accused that pulled out
the knife. They only
testified to what they witnessed and added nothing further. I
therefore found all of them to be credible witnesses.

5

In
addition, even P.W.4's evidence was to the effect that the accused
voluntarily told him that he had stabbed the deceased with
the knife
but never said anything about a stick not to mention that none was
found anywhere at the scene. Had there really been
a stick, it would
either haw been found there or at least accused would have also
produced it as evidence that the deceased had
attacked him with it
and he had dispossessed him of it.

Further,
it is clear from the evidence that the accused was the aggressor a:
the material time, having left his place in the choir
and going to
where the deceased was standing. True enough, the latter might have
normally bullied him around, but on this particular
occasion the
unchallenged evidence is that the accused just left the choir and
went to the deceased whereby a scuffle -ensued between
the two of
them.

Whilst
the Court has no reason to disbelief that the deceased used to bully
him around, as this was also confirmed by P.W.2, that
factor did not
give the accused the reason to attack him with a dangerous weapon on
one of the most delicate parts of the human
body, the head thereby
causing his death. That was definitely taking the law into his hands.
The law does not sanction that kind
of behavior.

6

Furthermore,
the issue of self-defence cannot simply be raised because one is
normally bullied around by another unless one can
show that at the
time his/her life was in imminent danger. The requirements of private
or self-defence are stated as 'an unlawful
attack upon a legal
interest which had commenced or was imminent'. See J M Burchell and P
M A Hunt in their work; South African
Criminal Law and Procedure Vol
1 General Principles of Criminal Law 3rd Edition p 73.

In casu,
the evidence has not established any of the three requirements since
at the material time there was no unlawful attack
upon the accused
which had commenced and/or imminent. The evidence showed that the
deceased had been standing apart from the choir
and that it is the
accused that left his place in the choir and went to him. Normal
bullying is not analogous to an imminent unlawful
attack.

As it is
stated further in Burchell and Hunt (Supra);

"The view is expressed by Steyn that the attack must take the
form of a positive act, an actual interference, the mere continuance

of an existing situation being thus insufficient. "

7

For these
reasons, the Court rejects the accused's story that he stabbed the
deceased with the knife in self-defence as false. At
best, the
constant bullying can only serve as an extenuating factor and not as
justification for accused's deed.

VERDICT

The
evidence led by the crown has established the existence of all the
elements of murder to wit. the unlawful intentional killing
of a
human being. Even if the accused might not have possessed the direct
intention to kill the deceased, although still young,
he was old
enough to understand that stabbing him with a knife on the head might
result in his death and he reconciled himself
with the possible
result. As such, he possessed the dolus eventualis by consciously
accepting the risk that the deceased might
die from the stab wound in
this Court's opinion. See also CR Snyman in Criminal Law 3rd Edition
p 171.

I however
find that there is no evidence placed before the Court that the
accused planned or premeditated the killing of the deceased
and this
factor, coupled with the fact that as it has been established, the
latter used to bully him around, as well as their earlier
altercation
on that day, are factors which

8

in the
Court's opinion reduce his moral blameworthiness. Accused is also a
very young man who was only about fifteen (15) years
at the time of
the incident.

For these
reasons, I believe the correct verdict herein would be to find the
accused guilty of murder with extenuating circumstances
and I
accordingly so convict him.

My
assessors agree.

SENTENCE

As I have
already stated above, the accused herein is a young man who was at
the tender age of fifteen (15) years at the time of
the incident.
Unfortunately he was only tried before me this year, four (4) years
since the incident occurred and has already attained
the age of
majority.

The
offence of murder for which he has been convicted falls under
Schedule III of the Criminal Procedure and Evidence Act of 1981
and
the alternative sentences such as a non-custodial one as that
prescribed under Section 314 do not apply in casu, an unfortunate

factor on his part. For these reasons, it

would be
difficult for this Court to follow the decision of the Court of
Appeal in the case of Nozabele 'Moso v Rex 1995-1996 LLR
p 317 quoted
to this Court.

At any
rate, in passing sentence the Court takes into account all the
factors that were raised on his behalf by his Counsel in mitigation

of sentence. These are basically that he is a first offender, and
there is no evidence that he either planned and/or premeditated
this
murder. Further, he was at a very difficult age of adolescence at the
time of the incident.

There is
also undisputed evidence that the deceased used to bully him around
and that attempts to reconcile them proved futile.
1 also take into
account the fact that the family of the deceased has lost a son never
to set eyes on him again not to mention
that the crime of murder is a
capital offence whose punishment should befit it.

As the
Court, I have to mete out the kind of punishment that will be
deterrent to other youth as well as being exemplary so that
they can
appreciate that use of dangerous weapons on the person of others is
not acceptable and will not be sanctioned by the Courts.

10

In trying
to strike a proper balance between all these factors. I believe the
proper sentence in this case would be that of three
(3) years
imprisonment and I accordingly so sentence the accused.

N. MAJARA

JUDGE

For the
Crown : Ms Khoboko

Ms Ncgobo

For the
defence : Mr Lesuthu

Assessors
: Mr Khoboko

Mrs
Lebusa