CIV/APN/530/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:-
MINISTER OF EDUCATION & TRAINING APPLICANT
VRS
NATIONAL UNIVERSITY OF LESOTHO
AND 21 OTHERS RESPONDENTS
RULING
Delivered by the Honourable Acting Judge Mrs. Mahase On the 23rd October 2005.
This is an application in which the applicant approached this court seeking a final interdict in the following terms:-
That the 1st respondent be and is hereby interdicted and restrained from paying out to any of the third to twenty second respondents; all inclusive (or anyone
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else who may demand any payment covered by this order) any amount(s):-
1.1 Not budgeted for in the 1st respondent's 2004/2005 budget; and
1.2 Not budgeted for in any previous annual budget of the 1st respondent;
Costs of suit jointly and severally against those respondents that oppose this application.
Further or alternative relief.
The founding papers herein were filed with this court on the (date not clear from the copy of the court file). However, the date stamp on the page for the index is the 13th April 2005.
The applicant is the Minister of Education and Training.
The respondents are, The National University of Lesotho which has been cited as the first respondent.
The second respondent is the Lesotho University Teachers and Researchers Union, while the third to the twenty second respondents are all members of the second respondent.
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Almost all of the third to twenty second respondents have been served with founding papers herein and they have each signed their names and affixed dates. These are presumably the dates on which they were served with papers herein.
There is however no such signature nor dates written besides the names of the 3rd, and 17th respondent.
This is not really the issue because none of them disputes that they have been served with papers herein.
There is also no copy of the return of service of the court process upon all the respondents.
This court, however, takes it that service was properly effected upon the respondents and that is why there is no objection to same.
The application is supported by the affidavit of the applicant who is described in the papers herein as also being the Minister of Education and also in 1.2 (page 7) of his founding affidavit as the Deputy Prime Minister of Lesotho.
The first applicant has submitted that among others, he is the Minister responsible for education in Lesotho as well as the
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Minister contemplated by the National University of Lesotho Act, 1992.
He has further submitted at 1.4 of his founding affidavit that he has locus standi to bring this application.
The founding papers (Notice of Motion) have been issued out from the office of the applicant's attorneys, Attorney General of Lesotho, Law Office, Qhobosheaneng Government Complex, Griffith Hill, P. O. Box 33, Maseru.
The applicant's attorney is written as being L. L. Thetsane.
The Attorney General has however not specifically been cited as an applicant or respondent herein.
The said founding papers are dated the 20th day of October, 2004.
This application is opposed by the respondents who have also raised some points in limine.
The said points touch on the issues which this court has extensively spelt out above, and which form the basis of the 1st applicants founding papers.
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The respondents notices to oppose appear on pages 60-61 (15th respondent) and 62-63 (all other respondents).
Respondent numbers 2 to 22nd have appointed the offices of T. Maieane as the address at which service and acceptance of all notices and documents in these proceedings will be made.
This court notices that the 15th respondent has clearly set out and spelt the points in limine he raises.
The points raised by the 15th respondent will suffice for this court to deal with this matter. In any case the issues raised herein are the same and affect all parties equally.
Actually at page 152 it is made clear that and at paragraph 2(a) the points raised in limine as outlined in the answering affidavit of the 15th respondent as filed along herewith will be pursued at the hearing hereof on behalf of all the respondents save the 1st respondent.
The 1st respondent has not filed any notice indicating its intention to oppose the matter. He should be taken to be ready to abide by any court order which shall be issued herein.
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POINTS OF LAW IN LIMINE
The first point raised in this regard is that the applicant has no locus standi to institute these proceedings against the respondents in general.
Respondents argue that the applicant has absolutely no business to do with their contractual entitlements flowing from their contract with the first respondent.
Their second leg of the argument is that the National University of Lesotho Act 1992, does not confer locus standi on the applicant to bring this kind of application against any of the respondents.
They argue further that it is the Attorney General who in law, and in terms of the provisions of Section 98(2) © of the Constitution
of Lesotho has the responsibility to bring such an application should there be violation of the National University of Lesotho Act 1992.
The relevant sections of the constitution of Lesotho dealing with the office of the Attorney General are as follows :-
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Section 98(1) of the Constitution of Lesotho provides that there shall be an Attorney General whose office shall be an office in the Public Service.
Section 98(2) © provides further that it shall be the duty of the Attorney General to take necessary legal measures for the protection and upholding of this Constitution and the other Laws of Lesotho.
There is therefore nowhere in the Constitution of Lesotho where the Minister in his Majesty's Government is empowered to exercise the functions of the Attorney General.
There is also no statutory basis anywhere in the laws of this country/kingdom empowering the applicant herein (nor any Government Minister) to exercise the powers of the Attorney General even in matters pertaining to education and training.
From the reading of the above-named Provisions of the Constitution of Lesotho, the applicant is not empowered by law to initiate proceedings against the respondents herein in his capacity as the Minister of Education and Training.
The Attorney General is charged with the duties to among other things exercise or perform any of the rights, prerogatives, privileges or functions of the state before courts and
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tribunals...........vide Section 98(2) (e) of the Constitution of Lesotho.
Further Section 98 (4) provides that in the exercise of the functions vested in him by Sub-Section (2)(a) and (b) and Section 69 of the Constitution of Lesotho, the Attorney General shall not be subject to the direction or control of any other person or authority.
This therefore is the general rule with no exceptions and it lives no room for Mannouvre by any other person to perform or purport to perform the functions of the Attorney General.
What the applicant should have done, is to seek legal advise from the Attorney General and then accordingly let the Attorney General to institute this proceedings on the applicant's behalf.
Section 98(4) is a mandatory provision which has to be complied with to the letter.
Having made the above observation, it is also worth noting that the Attorney General has, according to Section 98(2) (b); the duty to exercise ultimate authority over the Director of Public Prosecutions.
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In other words, and contrary to popular belief, the Attorney General has some authority over the Director of Public Prosecutions. His functions and powers are therefore not limited to his own office only.
According to the law as it stands, it is the Attorney General who has to give legal advice and institute proceedings on behalf of government and its (government) employees /departments on official matters regardless of the conduct or wrong complained about. Were. the position otherwise, there would be no point in having established the office of the Attorney General.
It is the Attorney General who will decide who to join or who not to join in the proceedings after he has considered any matter placed before his office by any representative of government and he is the only one who will legally advise government as to what next has to be done.
In the circumstances of this case, the Attorney General would have joined the applicant herein in the proceedings.
What the court before which the proceedings have been instituted may wish, is neither here nor there.
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With the greatest respect to the applicant, the correct position is that an application for joinder in matters relating directly to/or affecting government Ministries, will be dealt with by the office of the Attorney General. I say this because I realise that the applicant has repeated that ....... "if the court so wishes then the application can be postponed to join the Attorney General". Vide paragraph 8.2 of the replying affidavit.
With the greatest respect, the correct position is that, should there be a need for joining any party to the proceedings herein, an application would have to be made by a party who wishes to join another party. It is not for the court to do so. If the Attorney General wishes to join any other person to the proceedings, he can do so on his own or he can apply to court to allow him to do so. All that the court does is to determine the issue after having heard arguments for and against the application on that point.
Mention has been made by applicant of The National University of Lesotho Act, 1992 ("the Act") (A copy this court has is entitled - The National University of Lesotho Order, No. 19 of 1992). He says that this Act, in particular Section 38(a) empowers him to bring this application against the respondents herein. Indeed that may be so, but that has to be done in consultation with and together with the Attorney General.
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Applicant denies that this application is frivolus and vexatious. He says that being a Minister of Education and Training he is seriously endeavouring to prevent a Contravention of Section 38(a) of the National University of Lesotho Act, 1992.
He says further that being a Minister in Government he is responsible for administering the said National University of Lesotho Act as he now seeks to do.
That is correctly so, but with the greatest respect, the said Act does nowhere remove the responsibility of the Attorney General over matters affecting government and government ministries directly. The applicant is a Minister in the Ministry of Education and Training, which is a government Ministry, and which by law has to be legally advised by the office of the Attorney General, whose duty is also to iniate proceedings on behalf of government.
The provisions of this Act (National University of Lesotho Act 1992) can never override those of the Constitution of Lesotho.
This court is of the view that the National University of Lesotho Order (Act) 1992 falls under the definition, "Other Laws of Lesotho". It is an Act of Parliament.
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Section 98(2) © is clear as to who should take the necessary legal measures for the protection and upholding of this Constitution and the other Laws of Lesotho.
The position would be different if the applicant was not a government Minister but was dealing with this application in his personal
capacity as an individual.
In the present case, the applicant is acting as he does in his official capacity as a government Minister in charge over the Ministry of Education and Training. This is why this application should have been instituted by the Attorney General, and not by the applicant himself. By consulting the office of the Attorney General the applicant will still have done his duty as envisaged by the National University of Lesotho Act 1992, thereby upholding the law and preventing the breach of the said Section 38 (a) of the National University of Lesotho Act 1992.
In our common Common Law Jurisdiction His Majesty in his government can sue and be sued - (The Government Proceedings and Contracts Act No. 4 of 1965). Section 3(2) of this Act clearly stipulated that:
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"Save as may otherwise expressly be provided by law, action or other proceedings by His Majesty in His Government of Lesotho shall be instituted by and in the name of the Attorney General".
The Minister of Education and Training is a holder of a portfolio under the appointment by the king acting in accordance with the advice of the Prime Minister -(Constitution Act 89).
Whether as applicant or respondent in application proceedings or as plaintiff and defendant in action proceedings, a department of Government cannot sue or be sued without the Attorney General being cited. The Attorney General is the principal Legal Advisor and representative of the Government and all its departments.
Indeed exclusion of the Attorney General in application proceedings such as there may amount to a non-joinder and rightly so because in all proceedings in which the Government of Lesotho or its departments is suing or being sued, the Attorney General has a right to be joined as a plaintiff or defendant or as applicant or respondent as the case may be.
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A Ministry of Government on its own has no locus standi to sue without the Attorney General. This is a generally accepted practice over time immemorial For the foregoing reasons, the above points raised in limine are upheld.
This court realises that this is a highly important case which has a direct bearing on the proper running of The National University of Lesotho; and on the livelihood of its many employees. It is therefore of particular importance that the issues raised herein are dealt with thoroughly for the smooth running of this highest institution in the country.
The issues raised herein are by no means frivolus nor vexatious.
It is accordingly ordered that the applicant should properly consult with the office of the Attorney General so that this case can be properly instituted or initiated by the Attorney General himself as the law so requires. The applicant will surely be joined herein as indeed his Ministry has a direct interest in the matter.
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Costs are awarded to the respondents in the ordinary scale. There is no justification for awarding costs otherwise.
M. MAHASE (MRS)
ACTING JUDGE
Mr. Woker for applicant
Mr. K. E. Sello for Respondents
Mr. Moiloa for 1st Respondent
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CRI/T/59/04
In the matter between:
REX
V
SIMON KHOELE
JUDGEMENT
Delivered by the Honourable Acting Judge Mrs Mahase On the 18th October, 2005
The accused is charged herein with having committed the crime of Murder in that upon or about the 16th day of September 2002 and at or near Sekameng in the district of Mafeteng, the said accused did unlawfully and intentionally kill Tieho Makau.
This is a summary trial before this court. The accused was aged 19 years when this incident allegedly occurred. He pleaded not guilty to the charge.
All documentary evidence herein was admitted and handed in by consent, having first been read into the record, as part of evidence in this case.
Such admitted documentary evidence is the following:
A report made and filed by one No.4730 Tpr. Lenake a member of the Lesotho Mounted Police, stationed at Tsakholo Police Station. This is marked exhibit 'A'.
The statement of one Makau Makau. He identified the corpse of the deceased to the medical doctor before a post mortem was conducted
upon the corpse. This is marked exhibit 'B'.
The statement of Mabafokeng Snyman - a witness who provided a vehicle with which the deceased was conveyed to hospital. She accompanied
the deceased to hospital together with other people. This is marked exhibit 'C'
The post-mortem report. It shows that death was due to "penetrating left atrium cardiac wound with huge pericardial haemorrhage".
This is marked exhibit 'D'
The crown then called three witnesses in order to proof its case against the accused.
In brief the facts are as follows:
On the day in question the accused and the deceased who were cousins, had been drinking beer together since the morning of the 16th September 2002 until late afternoon. They left that place towards dusk when they then went back home. They were at a village called Ha Lenonyane.
It was the deceased who had been buying the beer which he shared with the accused.
While there, some men who were unkown to the accused came and they drank that beer with the accused and the deceased.
The deceased took an offence to that and he (deceased) reprimanded the accused for allowing those villagers to partake in their beer.
When they later left that place and went back home, they quarrel about this issue again. The deceased was blaming the accused for the partaking of their beer by the said villagers.
However, unknown to the accused and the deceased, those village men had been coming following after the accused and the deceased.
The villagers were out to fight this duo. It is not clear why they wanted to fight those two.
The accused managed to run away and escaped, leaving the deceased behind presumably with those men from Ha Lenonyane.
The accused ran to the deceased's home where on arrival, he demanded a knife so that he could go and help the deceased, who he thought was being attacked by those men from Ha Lenonyane.
When the accused went out of the deceased's house, armed with a knife, he met the deceased outside. The deceased continued to blame the accused for what had occurred in the sheeben earlier.
The deceased took/snatched the lebetlela stick of Pwl, his younger brother and hit the accused with it.
On being hit with that stick, the knife which the accused had in his hand fell down as the accused was rolling down following that stick blow delivered upon him by the deceased. It is not clear where exactly the accused was hit with that stick, neither is it clear or not if he sustained any injuries from that blow.
The accused stood up and the deceased chased after him (accused). Ultimately, the accused ran back into the deceased's house and locked himself in there.
The deceased tried in vain to burn his house in an effort to force the accused to come out of it. He used a gas cylinder and opened gas in that house. The accused inhaled that gas.
Having failed to burn that house of his, the deceased left that place and went away into the house of Pw2, a neighbour.
On arrival in Pw2's house, the deceased sat behind the door. After the deceased had left his house, Pwl called out to the accused to get out of that place so that he (accused) could get himself a place where he could sleep.
When the accused left that house of the deceased, he too went to the house of Pw2. But before the accused went there to Pw2's house, he first went to look for the knife which had been lost when he was hit with a stick by the deceased.
He found it and he went into Pw2's house armed with it. On arrival in the house of Pw2, the accused who found the deceased already in there went straight to the deceased and fought him, stabbing him with a knife on the chest area.
Pw2 who was in her kitchen with the deceased and one "Mamoletsane ran away into the bedroom. They left the deceased and the accused fighting.
In that fight, the accused overpowered the deceased, felled him down, sat on top of him and the accused stabbed the deceased with an Okapi knife on the chest repeatedly. Somebody raised an alarm and called for help. Pwl ran to Pw2's place from where the alarm came.
On arrival there, he (Pwl) found the accused sitting on top of the deceased stabbing the deceased with a knife. He held the hand of the accused to try and restrain him from stabbing the deceased further but in vain. It was one Tsepo who ultimately came to intervene to stop the fight. Very unfortunately, the deceased was seriously injured and he died from those injuries on the way to hospital.
The nature and the extend of the wounds the deceased sustained in the hands of the accused is clearly indicated in exhibit 'D', the post-mortem report.
As has already been indicated, death was due to penetrating left atrium, cardiac wound with huge pericardial hemorrhage.
The medical doctor who performed the post-mortem on the body of the deceased has further remarked that the deceased had been assaulted
very severely, stabbed with knife on the chest.
The post-mortem reveals:
Two (2) penetrating chest stab wounds on the left side of chest.
One (1) penetrating chest stab wound on the right side of chest.
Penetrating left atrium cardiac stab wound.
One (1) wound, right shoulder and one (1) wound: Posterior right thigh.
The total of the said wounds which the deceased sustained from being stabbed with a knife by the accused are six (6).
With the exception of those last mentioned in number (4), all of these wounds are/were penetrating wounds. All, except one were on the chest area.
Pwl, Tseliso Makau's evidence is briefly that it was around 7:00 to 8:00 pm when the accused arrived and asked him
(Pwl) for a knife. That the accused informed this witness that deceased was being attacked by some boys from Ha Lenonyane village and he (accused) was going to help the deceased.
He saw when the accused met the deceased on the fore court and when the accused stabbed the deceased with a knife on the thigh. That was the knife which had just been handed to accused by Pwl. The accused had said to Pwl he was going to help the deceased who he said was being fought by the boys from Ha Lenonyane.
Pwl saw when the deceased chased after the accused. Also he saw that the deceased was holding a lebetlela stick as he chased after the accused.
It is however his evidence that the deceased hit the accused with a stick.
The witness also saw when the knife with which the accused had stabbed the deceased was thrown near the aloe by the accused. He also testified that he saw when the deceased attempted to burn the house in which the accused had locked himself. This house, it should be remembered was for deceased's parents. It was his home.
Pwl later saw the accused going to get the knife which he had earlier thrown near the aloe and when accused went to the home of Pw2, the deceased was already in Pw2's home at that time.
Having heard an alarm raised, Pwl went to Pw2's house and on arrival thereat, he found the accused sitting on top of the deceased and he (accused) was stabbing the deceased with a knife around the chest area. The deceased was lying down on his back as the accused was lying upon him stabbing him (deceased) with a knife on the chest repeatedly.
Pwl testified that he held the hands of the accused at his hands in order to stop the accused from stabbing the deceased. Lastly it is his evidence that there was no other weapon found near where the deceased was stabbed by the accused, except the knife with which the accused fatally stabbed the deceased.
Pwl's evidence is corroborated by that of Pw2 ('Mamohanuoa Rantsatsi). Pw2 is the lady in whose house the accused stabbed the deceased to death. Pw2 is a neighbour to the deceased's mother. She and other ladies were in her home when one 'Mathabo reported that she did not know why the children i.e. accused and the deceased were fighting.
There in the house of Pw2, went the deceased he sat down on the chair behind the door. The deceased asked about the whereabouts of 'Mathabo. 'Mathabo is the accused's mother. At that time, Pw2 and 'Mamoletsane went into the kitchen while "Mathabo and 'Malijalo went into the bedroom of her house.
It is her Pw2 unchallenged evidence that the deceased was not holding any weapon when he arrived in her house. It is this witness who asked the deceased what was going on between him and the accused. His (deceased) response was that he would tell them about that on the following day.
It is her further unchallenged evidence that as they were talking with the deceased, the accused opened the door and went into her house. That the accused went straight to where the deceased was sitting and the accused stabbed the deceased with a knife on the chest area.
She then ran away from the kitchen into the bedroom. She came out of the bedroom later only to find that the deceased was lying down on his back. That the accused was sitting on top of the deceased, the accused holding his knife but Pwl was then holding the accused's hands.
At that time one Tsepo came in to stop the fight. Her evidence corroborated that of Pwl that the deceased and the accused went to the home of Pw2. The deceased having arrived thereat before the accused. That when accused went into Pw2's house he had a knife with him. That he later sat on top of the deceased and stabbed the deceased with a knife repeatedly around the chest. That the deceased was not armed with anything at that time that the accused stabbed him to death.
Also, she corroborates Pwl's testimony on the fact that the deceased had fallen down on his back; that the accused was sitting over the deceased as he stabbed the deceased with a knife.
Pw3, one No 9061 Tpr. Ranyali testified that he is member of the Lesotho Mounted Police Service, that he was stationed at Tsakholo Police post.
That on the day in question, the ll\9\02, Simon Khoele was handed in to him while he was on duty. He was handed to him by the chiefs messenger on the allegation of having killed one Tieho Makau.
Having cautioned the accused he asked for an explanation after which he gave the accused the charge. That the brown okapi knife was handed to him by those who had escorted him
to the charge office. He kept it as an exhibit. It was handed to court as seen and was marked exhibit 1. He also gave accused a charge herein. The stick with which the deceased allegedly assaulted the accused earlier in their fight was handed to No 4730 Tpr. Lenake whose report was admitted as evidence and is marked exhibit A.
The accused's defence is that of self defense. It is his story that he and the deceased had a quarrel on their way back home over the fact that the accused had allowed some men to drink their beer; which beer had been paid for by the deceased. He told the court that as they continued quarrelling on their way back home the said men suddenly surfaced and the said men fought them (accused and deceased). It is not clear why these men decided to fight the two men who had allowed them to share their beer.
Be that as it may, the accused told this court that he managed to escaped from those men leaving the deceased behind and went home. On arrival back home, he (accused) asked for a knife and his intention was to go back where the deceased was left with those people so that he could help the deceased.
It was Pwl who gave the accused a knife. However just when the accused left to go to where he had left the deceased with those men who he said fought them; he met the deceased on
the fore court. Pwl was with the accused and he (Pwl) was holding a lebetlela stick in his hands.
According to accused, when the deceased saw him, the deceased suddenly snatched the stick from PW1 and hit him (accused) with it.
From there the deceased chased after him (accused) until when accused locked himself in the house. Evidence has already revealed that that house was for the deceased's parents. It was the deceased's home.
It was at this house where the accused told this court that the deceased attempted to burn and kill him using a gas cylinder. This failed.
After sometime, when all was quite, the accused left the deceased's house and went to the house of Pw2. Unknown to him, on arrival thereat he found that the deceased was already in Pw2's house, seated behind the door.
It is the accused's story that the deceased, who is alleged to have been holding a stick and an Okapi knife, suddenly assaulted the accused with that stick, holding the knife with the other hand.
Accused further says that at that time the deceased had blocked the door to prevent the accused from escaping. That at that time there was no one in the house except him and the deceased.
Ultimately he got hold of the deceased's knife and stabbed him (deceased) with it haphazardly. That Pwl came in as he was stabbing the deceased with a knife. Pwl held his hands to stop him from further stabbing the deceased with a knife. Accused does not say in what position the deceased was as he stabbed him with a knife. He said that the fight stopped after Pwl, and one Tsepo came to intervene and it was Pw2 who had raised an alarm.
Lastly, the accused told this court that he was drunk and had a black out, but that he was defending himself.
It has been submitted on behalf of the accused by Mr. Tsenoli that the inescapable conclusion on the totality of the evidence is that the accused killed the deceased in self-defence.
The crown has, on the other hand denied that the accused fatally stabbed the deceased in self-defence.
It is its argument that when the deceased went into the house of Pw2; having left the accused at the house which he
(deceased) had attempted to burn, the deceased was not in anyway armed with any weapon.
The deceased did not tell the accused when he left for Pw2's house that he was going to Pw2's house.
Pwl also told the court that the deceased was not armed with a stick when he went into Pw2's house. Thus the evidence of Pwl corroborates that of Pw2 that the deceased was not armed with a stick nor a knife when he arrived into her house.
It is also Pwl's story that before the accused went to Pw2's house, the accused went to the place near the aloes to collect his knife which he had thrown thereat after he had earlier stabbed the deceased with it.
This makes it clear that when the accused left for Pw2's house, he was armed with a knife (an Okapi knife). This evidence of the crown has not been challenged nor denied by the defence in any way.
Pw2 in whose house the deceased went before deceased was fatally attacked by the accused, has not indicated if there was anything which obstructed her from seeing the deceased very well when deceased went into her house. She raised an alarm and one Tsepo went to her home. It is Tsepo who also helped
to stop accused from further stabbing the deceased with a knife.
It is clear from the evidence outlined herein by the crown that when the accused found the deceased sitting down behind the door at and with Pw2, the deceased was no longer in a fighting mood, neither was he armed with any weapon. He was sitting there answering the questions which Pw2 was then putting to him with regard to this fight between him and the accused.
The deceased had just answered that he would tell this witness and others about that on the following day.
It was at that time that the accused opened the door, went into that house of Pw2 and went straight to where the deceased was sitting and stabbed the deceased on the chest with a knife.
It was not until when Pwl later went into that house that the accused was overcome by Pwl who held the hands of the accused thereby stopping him from further stabbing the helpless deceased with that knife.
None of the crown witnesses, who are eye witnesses saw any weapon upon the deceased before and after he was fatally stabbed to death by the accused. The said crown witnesses,
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Pwl and Pw2 denied that the deceased hit the accused with a stick when the accused entered into the house of Pwl.
They are both agreed and corroborate each other that the deceased was overpowered by the accused who sat upon the deceased and stabbed the deceased with a knife many times on the chest area.
The crown has however, and for undisclosed reasons not called Tsepo and the other ladies who were with Pw2 when this incident occurred.
Be that as it may, this court has no reason to doubt the story of Pwl and Pw2.
The contents as contained in the post-mortem report, exhibit 'D' tally with the evidence tendered herein by the crown that the deceased died of penetrating chest wounds as described therein.
This court has no reason to doubt the medical doctor's observations and findings, as to the cause of death and the findings thereat in exhibit 'D'
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Indeed the deceased was rendered helpless while lying down on his back as the accused sat upon him and repeatedly stabbed him on the chest area with an Okapi knife.
From the evidence herein, the deceased did not at that time pose any danger to the accused's life. Neither did the deceased utter or do anything to the accused endangering the life of the deceased.
There is unchallenged evidence tendered by the crown that when the deceased arrived at the house of Pw2; he only asked about the whereabouts of 'Mathabo who is the accused's mother. This was before the accused arrived at that house of Pw2. This is an innocent question; it could not provoke anybody.
There is no evidence before this court that the deceased had a chance to stand up from where he was sitting in Pw2's house to block the way thereby making it impossible for accused to go out of that house to run away. On the contrary, evidence is that the accused did not give the deceased any chance as he (accused) went straight to the deceased where the deceased was sitting and he (accused) then stabbed the deceased with a knife on the chest area. The deceased ended up having fallen down on his back. The accused sat upon him and stabbed him with a knife several times.
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If indeed we were to belief the story of the accused that it was the deceased who hit him first (accused) with a stick when the accused went into Pw2's house and that later he (accused) overpowered the deceased; took away the knife with which the deceased was allegedly stabbed, then the accused, having disarmed the deceased had ample time to go out of that house and avoid danger of any kind against him. It is common cause that he deceased had fallen down when the accused fatally stabbed him (deceased) to death. These factors and the fact that the deceased was not blocking the door for the accused to escape, offered a chance for the accused to go out of that house of Pw2 thereby avoiding the occurrence of this unfortunate incident.
Instead the accused continued to sit over the helpless, unarmed deceased and stabbed him with a knife a number of times on the most vulnerably part of one's body, the chest area thereby causing the deceased's death.
For the foregoing reasons, this court has come to the conclusion that in the circumstances of this case, and in particular on the evidence in relation to this fight in the house of Pw2, there was no imminent danger posed by the deceased against the accused when the accused so stabbed the deceased several times on the chest area with that Okapi knife.
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The accused cannot raise self defence after the deceased had left him for sometime to go to Pw2's house. It was the accused who went straight to the deceased where the deceased was sitting in Pw2's house and the aggressor was then the accused. The accused could as well have fled into the bedroom together with Pw2 if indeed he was afraid and feared the deceased as he wants this court to belief so.
This court has not been told where the accused was hit with a stick by the deceased at that time, neither has it been told whether or not the accused sustained any injuries from that assault upon him by the deceased when they were in Pw2's house. Of the admitted documents forming part of evidence herein, there is no medical report showing that following that assault upon him by the deceased, the accused sustained injuries and went for medical treatment; neither is there any statement by the accused showing that subsequent to that assault upon him by the deceased, he sustained injuries.
On the contrary that stick which was allegedly used by the deceased upon the accused was handed to the police by Pwl. This is because that was Pwl's stick which the deceased had snatched from him (Pwl) at the very beginning when the accused and deceased started to fight. This stick was never
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taken by the deceased to pw2's house in which the deceased was later stabbed to death with a knife by the accused.
The accused's story that the deceased hit him with a stick when accused went into Pw2's house is not in anyway supported by evidence adduced before this court. All evidence points to only one thing; namely that the deceased was not armed, and that he was sitting on a chair behind the door in Pw2's house when the accused suddenly entered into that house; rushed to the deceased and stabbed him with a knife on the chest area. The accused did not end up there. He continued to repeatedly stab the deceased with that knife on the chest area even after the deceased had fallen down.
It should be remembered that evidence is that even when Pwl and Tsepo went into that house, the accused was found still sitting on top of the deceased stabbing him with a knife on the chest area. Accused's story that he could not run away out of that house because the deceased had blocked the door is therefore not reasonably possibly true.
It is highly improbable that the deceased who had fallen down on his back, with the accused sitting on top of him (deceased) and being stabbed with a knife repeatedly, could be a danger to the accused's life.
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In the case of Rex V. Seabata Mokhachane CRI/T/13/04 (unreported) it was said that, "for the accused to succeed in establishing his defence, there must be evidence adduced before court to show that the accused's action was to repel an unlawful attack already commenced or imminent upon his life or bodily integrity".
The evidence adduced before this court points to the fact that when accused found the deceased in Pw'2 house, the accused went straight
to where the deceased was sitting and stabbed the deceased with a knife on the chest area. There is no other evidence to the contrary.
So the accused was the original aggressor as he fatally stabbed the deceased to death.
This action of the accused upon the deceased was witnessed by Pw2, the owner of that house who was then having a conversation with the deceased when the accused went into her house uninvited and without knocking before he went into it. Pw2 went into her bedroom shortly after she had witnessed this attack by the accused upon the deceased.
This attack continued even after Pw2 had run into her bedroom. Pwl and Tsepo later found the accused still sitting upon the already
seriously injured deceased. It was not until after Pwl held the hands of the accused that he stopped inflicting further stab wounds upon the deceased. It has
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already been indicted that there was no imminent attack by the deceased on the accused when they were in the house of Pw2. The defence of self-defence can therefore not stand in this case.
Even assuming for arguments sake that the deceased attacked the accused first and that the accused had believed that his life was in danger and that as a result, the deceased would kill him or seriously injure his life, I have come to the conclusion that in the circumstances of this case, the accused exceeded the bounds of reasonable self-defence. How does accused defend himself against he deceased in a situation where the accused had stabbed the deceased with a knife on the chest area and where the accused had rendered the deceased helpless by further inflicting stab wounds when the accused had cleared over powered the deceased?
Mr. Tsenoli for the accused argued that the accused was in a crisis when he stabbed the deceased to death at that time. It has not been elaborated what that crisis was, but be that as it may, this court rejects this argument as not being true. There was never a time when the accused was faced with a crisis when he went into Pw2's house and found Pw2 and the deceased peacefully having a conversation.
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For the foregoing reasons, this court has come to conclusion that the accused fatally stabbed the deceased to death with that knife for no good cause, and that the crown has discharged the onus placed upon it in a case of this nature beyond a reasonable doubt.
I observe that the four wounds upon the deceased were inflicted at the most vulnerable part of one's body. The accused should have foreseen that once he inflicted such wounds upon the deceased at the said area, death was likely to be caused. The accused did, however not care whether or not death would occur or follow from his assault upon the helpless, defenceless deceased person.
The accused clearly intended to kill the deceased as he eventually did. He is accordingly found guilty of murder.
The court is enjoined by the provisions of Section 296 of the Criminal Procedure and Evidence Act to say whether or not there are
extenuating circumstances.
It was submitted on behalf of the accused that there are indeed such extenuating circumstances in existence herein. Counsel for the accused applied that the following factors should be regarded as forming extenuating circumstances:-
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The age of the accused when he committed this crime. He was then 19 years old.
That the murder was not premeditated. What happened was an accident.
That both accused and the deceased were cousins and they had no bad blood against each other.
That on that fateful day, both accused and deceased had been drinking beer from the early hours of the morning until very late in the late afternoon. As such they were both very intoxicated such that their normal reasoning powers were diminished.
This court has accordingly come to the conclusion that extenuating circumstances which somehow diminishes the accused's blameworthiness
do exist; to wit lack of premeditation to commit this crime.
The fact that they were close relatives and cousins as their mothers were sisters. There was no bad blood between them.
Lastly, the fact that they were both highly drunk or intoxicated from beer drinking from the early hours of the morning until the late afternoon.
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ON MITIGATION
The accused, it was submitted, is a first offender.
Accused is one of the five children in his family, and is survived by his ill mother, who has to attend periodic medical treatment in the Republic of South Africa.
Accused is helping his mother to maintain and support his family by subsistence farming.
At the time this unfortunate incident occurred, the accused's mother had visited the deceased's mother together with the accused.
The families of the accused and deceased are still in good terms and they worked together in the funeral of the deceased.
That the accused has shown remorse. It was further submitted that being a young man and close relative of the deceased, the fact that he has been convicted of having unlawfully killed the deceased is already a torture upon the accused, who it was argued, will live with this unfortunate thing in his mind for ever. That this will always haunt him forever.
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Mr. Tsenoli further submitted in mitigation on behalf of the accused that the court should consider a lenient sentence and avoid a custodial sentence. He agreed that due to his tender age, a custodial sentence is not appropriate for the accused would go to prison where instead of reforming and be rehabilitated, he might meet older hardened criminals who may influence him negatively.
He applied that the court should consider imposing a sentence until the court arises.
Of course, this he said mindful of the fact that someone has lost life for ever.
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SENTENCE
This court has carefully taken into account all which has been said by counsel for the accused on behalf of the accused in mitigation of sentence.
It is indeed a very sad situation that as indicated above, both accused and the deceased were under the influence of beer and were
drunk/intoxicated.
There is really nothing they fought for which could be said to be serious but for their drunkenness.
The accused had not premeditated to kill the deceased.
He however, used a knife to inflict the said fatal wounds upon the deceased as has already been explained herein.
A knife is a highly lethal weapon which should never have been used upon any human being.
It should however be remembered that the accused had initially thrown away that knife but he suddenly remembered it and he went to pick it up and followed after the deceased armed with it. He ultimately fatally stabbed the deceased with
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it at the time when the deceased was no longer fighting him (accused).
The justice of this case demands that an appropriate sentence be imposed so as to detter other people with the mind like that of the accused from committing actions such as this one.
Courts of law do not lightly view instances of this nature where a human being is killed and his life taken away by the actions of another human being with impunity. Life is sacred and God given. It should be valued and protected.
This court accordingly imposes a sentence of seven (7) years imprisonment upon the accused.
The knife in question should be lawfully disposed off by the police.
My assessors agree.
For Crown : Ms. Mabea
For Defence : Mr. Tsenoli
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