CRI/T/36/03

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

VS

TSELISO
MAKAU

JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu On the 17th November

2005

The
accused is charged with two offences.

Count 1
is that of murder in that he intentionally killed Motlalepula Khauli.

Count II
is that he was in possession of an unlicensed fire-arm.

The
accused was slightly deaf. Consequently at the outset of the trial,
he sat with the interpreter so that the interpreter and
witnesses
could speak to him aloud, as near to him as possible.

The
charge was read to the accused and the accused was asked to plead. He
made a long statement which the court found unwise to
interrupt.

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Accused
unequivocally pleaded guilty to the unlawful possession of a firearm
in Count II.

In
respect of Count I accused admitted shooting the deceased. But said
he did so unintentionally because the deceased was throwing
stones at
him. He shot deceased while he was in the process of scaring off the
deceased. A plea of not guilty to Count I murder,
was entered.

The Crown
called four witnesses. The identity of deceased was not disputed as
well as the cause of death. The medical evidence was
read into the
record in terms of Section 273 of Criminal Procedure and Evidence Act
1981 admitted as a fact. The firearm - a pistol
marked Exhibit 1 was
similarly admitted as the one with which the accused shot the
deceased.

What was
at issue was whether in the circumstances accused had shot deceased
in self defence or unintentionally.

Pwl was
Rethabile Moloantoa. He was related to both the accused and the
deceased and lived in the same village with them. He told
the court
that on the day in question at dusk accused was dragging his wife at
a rivulet nearby, wanting his wife to go with him
by force. The wife
was screaming calling for help. It was slightly dark or darkness was
setting in.

The
mother of the accused's wife who lived nearby went to intervene. The
accused's wife had shouted that accused had a firearm while
she was
screaming. While the mother of the accused's wife was talking to

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the
accused - persuading him not used force on her daughter, the deceased
was seen going to them carrying the two sticks. Accused
said to the
deceased "are you fighting?" Pwl heard a gun report and saw
a flash of light. This gun report was followed
by another after a
pause of less than 20 seconds. Pwl ran away. At the time of shooting,
Pwl was between 30 and 40 paces from the
scene of the fighting.

Under
cross-examination, Pwl was read his statement, which showed that at
the time deceased was shot the mother in law of the accused
had
stopped the accused from dragging away his wife violently. Pwl
admitted that when he made that statement to the police the
events
were still fresh in his mind. He was giving evidence three years
after the event while he made the statement the day after
the
shooting. Pwl admitted he had made the statement to the police the
day after the death of the deceased. Pwl denied that deceased
hit the
accused with stones. He also denied there was any fight before the
deceased was shot.

Pw2 was
the mother-in-law of the accused. She told the court she rushed to
where her daughter was screaming in a rivulet near her
home. She
found accused dragging her daughter by force. While he was talking to
accused her grandson the deceased came. Without
saying a word the
accused hit him with a gun and he fell. Accused hit the deceased
twice with a gun. After the court had asked
several questions Pw2
said by hitting deceased with a gun she meant accused had shot
deceased.

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Cross-examined
about her statement made to the police the day after the death of her
grandson, Pw2 showed she was not sure she made
it. Eventually, she
remembered she made the statement. In the statement she had said she
had stopped accused from dragging her
daughter away when the deceased
came and accused shot the deceased. Pw2 showed considerable confusion
- she at times admitted she
had stopped the accused from dragging her
daughter away when accused shot deceased. She would later say she had
not.

Pw2
denied she and her daughter had left when accused shot deceased. Pw2
said she was not aware that accused had found her daughter
with a man
who produced a gun and pointed a gun at accused when he found him
with his wife.

Pw3
Renang Makau was the next witness who told the court that he found
the accused dragging his wife by force at a rivulet. Pw3
says he want
to the stable 40 paces away where he joined Pwl. Pw2 according to Pw3
went to the rivulet where her daughter was being
dragged by accused.
Just then the deceased went to the rivulet carrying two sticks. There
was moonlight. At the rivulet he heard
two gun reports and he and Pwl
fled.

Pw3 under
cross-examination said although his statement to the police showed
that he had said the accused's wife had managed to
free herself and
escape that was not correct. The deceased was shot while Pw2 was
trying to intervene. Pw3 had to admit that the
statement was made the
day after the shooting of

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deceased
when his mind was still fresh. He also had to admit that it was
rather dark at the time.

Pw3
denied that Pw2 was no more at the scene of the shooting when
deceased was shot. He denied the deceased had thrown stones at

accused because he would have heard the sound of stones hitting
something. Pwl also denied deceased hit the accused with a stick.
If
that was so he would have heard it.

Pw4 was a
police woman to whom the accused surrendered the day after the
shooting. She told the court that accused handed to her
a black 7.65
pistol and said they had fought with deceased. Accused had told her
he shot deceased during the fight. She handed
the pistol and it was
marked Exhibit 1. Pw4 was not cross-examined. The medical report was
handed in by consent and marked Exhibit
A.

The Crown
closed its case.

Accused
gave sworn testimony in his defence. He told the court that his wife
had gone to her maiden home because of a misunderstanding.
He went to
fetch her, but when he got to his wife maiden home, he did not find
her. He found his wife at a donga or rivulet sleeping
with a man. He
tried to take her home by force. His wife refused and screamed. Pw2
the mother-in-law came and talked to him. He
released his wife, and
his wife and Pw2 went home. These events happened at about 7.00 p.m.
and it was dark.

Deceased
came carrying two sticks. When he got to him - deceased threw stones
at him. He stopped

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the
stones with his hands. Accused says he fired into the air to scare
deceased who kept on coming. With the second shot he must
have hit
deceased because deceased fell down. He had no intention to kill
deceased. He went away and surrendered to the police.

Cross-examined
accused denied he was telling the court lies. He admitted deceased
did not say anything. Accused told the court deceased
attacked him
with stones. Accused added that he was so badly hit with stones that
he could not walk. The police refused to give
him a medical form
although he asked for it. He went to a doctor got a medical
certificate containing his injuries. Accused said
he left this
medical certificate in prison. He was not aware it would be needed.

Accused
told the court he did not tell his counsel about these injuries and
that the police refused to give him medical certificate
so that his
injuries could be recorded.

It is the
law that the Crown must prove the accused's guilt beyond a reasonable
doubt. Accused has no onus to prove his innocence,
because he is
presumed to be only a suspect throughout.

Evaluation
of evidence is not easy. Many factors have to be taken into account
in assessing credibility. Schwikkard, Skeen and Van
der Menve
Principles of Evidence (1997) at page 502 say the following:-

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1. Demeanour,
   in itself is a fallible guide to credibility and should be
   considered with all other factors ....

   
   

2. The
   limited value of a finding on demeanour becomes even less where an
   interpreter is used..."

   
   

This
emphasis on the fact that demeanour should not be decisive is a
reaction to tendency in the past to over-emphasize the importance
of
demeanour in assessing credibility. This can be seen in the remarks
of Le Roux J in S v Malepane 1979 (1) SA 1009 at pages 1016-1017

where the learned judge said:-

"Demeanour can be a false indication in this particular case. It
must be remembered that all the accomplices are Black men
testifying
through an interpreter and however excellent the interpreter is (and
I must say in this particular case he was one of
the best I have come
across) it is almost impossible to judge from demeanour alone whether
a man is telling the truth or not as
would be the case with a witness
who is cross-examined directly by counsel."

In that
case Le Roux J was dealing with witnesses (albeit accomplices) who
had changed the statements they made to the police when
they gave
evidence in court. This is a problem I have in this case - all three
Crown witnesses have changed their sworn statements
from what they
said to the police. The three Crown witnesses have changed their
evidence by trying to suppress one fact that might
be favourable to
the

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accused -
that is, that accused had released his wife when the deceased came to
where he was shot.

The
problems that the interpreter and the slightly deaf accused had have
to be taken into account. Our courts still have to use
interpreters
even when they do not need interpreters because Sesotho is the mother
tongue of High Court judges. This has to be
taken into account in
evaluating the evidence.

There is
a similar tendency to regard the evidence of a witness to be totally
not worthy of credence because it contains lies or
inaccuracies here
and there. Falsum in uno, falsum in omnibus - which means telling a
lie in one thing, automatically leads to
the conclusion that all a
witness has said is false. That maxim is not a legal principle.

However,
a lie here and there in the evidence of a witness should put a trier
of fact on guard. To put this in words of Nicholas
J in S v
Oosthuizen 1982 (3) SA 571 at 577 B:-

"All
that can be said is that where a witness has been shown to be
deliberately lying on one point, the trier of fact may (not
must)
conclude that his evidence on another point cannot be safely relied
upon."

The court
accepts it as a fact that when the deceased was shot by the accused
it was dark. Pwl told the court that he only saw a
flame or sparks
when accused fired a pistol at the deceased. Accused says it was at
7.00 p.m not 6.00 p.m. In May at about 6.00

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p.m
darkness begins to set in. In Mokhotlong which is the mountainous
region of Lesotho, it becomes darker sooner than in the low
lands
depending on the proximity of high mountains. I will therefore accept
the accused's evidence is more correct than that of
Crown witnesses
on this issue.

I find
all three crown witnesses Pwl, Pw2 and Pw3 changed their evidence
before me on the issue of whether accused was still dragging
his wife
when deceased came to the scene. The correct thing is what they said
to the police to the effect that the accused had
released his wife
when the deceased got to where accused was.

I have to
treat the evidence of these three Crown witnesses with caution
because they are bent on assisting the court of convict
the accused
rather than telling the truth.

I accept
it as a fact that everything happened within a short space of time.

The
deceased came with two sticks to come and rescue his paternal aunt
who was screaming because her husband the accused was taking
her away
by force. According to the custom of the Basotho of ho ngala when the
wife has run away to her maiden home from her husband,
she is under
the protection of her family. The accused was acting illegally and
contrary to custom when he captured his wife in
the rivulet and
attempted to take her away by force. By custom families had to meet
and hear the wife's grievances

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before,
they could release her to her husband after settling the grievance.

I accept
that the wife of accused had just been released when the deceased
came armed with two sticks. Accused did shoot him after
he (the
accused) had asked the deceased if deceased was fighting. Pw2 was
still with the accused or about to go. This is confirmed
by the
statements to the police that all three witnesses made.

I reject
as false that the deceased hit accused with stones so badly that he
was unable to walk. It is just as false that the accused
was denied a
medical form to go to a doctor. It is also false that the accused
ever went to a doctor and that he forgot his medical
report at the
prison because he thought it would not be important. If these events
had occurred, the accused would have told his
counsel.

I do not
think that merely because the accused deliberately lied to the court
in this manner he is automatically guilty of murder
as charged. I
have to look at the totality of evidence to reach a verdict.

Accused
created a situation in which his wife relatives under whose
protection she was, had to intervene forcibly. His wife was
under the
protection of her relatives under the ngala custom. Why the accused
chose to go and take her irregularly, and contrary
to custom - the
accused does not say.

The
accused says he went looking for her and found her sleeping with
another man. This is not what

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accused's
counsel put to Crown witnesses. Accused counsel put to witnesses that
accused would tell the court that accused would
tell the court that
he found his wife with another man who pointed a gun at accused.
Accused did not say this when he gave evidence
- it would be
interesting what accused or any reasonable man might have done if his
wife's paramour pointed a gun at the accused
who was also armed with
a gun. It is clear accused was not telling his counsel the truth. For
all it is worth I do not believe
what the accused says about his
wife. This fact however, is irrelevant to the case before me.

The
accused has no onus of the kind the Crown has to prove this defence.
He has only to reasonably satisfy the court that he shot
the deceased
in self-defence. The court does not believe - nor is there evidence
that deceased hit the accused with stones to the
extent that he was
unable to walk. The rejection of this evidence does not in itself
prove the accused guilty. As Stratford CJ
said in R v Weinberg 1939
AD 79 at page 80:-

"This story was disbelieved, but non-acceptance of a statement
of a witness by the court does not, of course prove the truth
of the
contrary. Indeed, it is not evidence at all. The disbelief of a
witness's statement merely removes an obstacle to the acceptance
of
evidence tending to prove the contrary."

What I am
saying is that the court should not punish the accused for perjury by
finding him guilty of the crime with which he is
charged.

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In the
absence of credible evidence to the contrary I believe that the
accused merely shot the deceased because he thought he was
fighting
without any threat to his life, because deceased had come to the
rescue of deceased's paternal aunt who had by then been
released or
who had escaped from the accused's clutches. In that darkness nothing
was clear and everything happened within a short
time.

The last
issue to decide is whether the accused intended to kill deceased. For
the accused to be found guilty the Crown has to prove
the accused
subjectively intended to kill deceased. See the case of S v Sigwahla
1967 (4) SA 566. In other words the test is not
objective. The court
should not determine what ought to be the accused's intention. It has
to decide what was the accused actual
intention. At page 570 of S v
Sigwahla Holmes JA said:-

"It is sufficient if the accused subjectively foresaw the
possibility of his act causing death and was reckless of such result

... The fact that objectively the accused ought reasonably to have
foreseen such possibility is not enough."

Shooting
at a person in some circumstances might make death a certainty. This
would depend on facts. The Crown has not brought sufficient
facts to
make the court to draw the inference that circumstantially the only
inference to draw is that accused intended to kill
deceased. I am
obliged to give the accused the benefit of doubt on the issue of
murder.

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What the
Crown has proved is that the accused negligently fired at the
deceased who was not far from him merely because in the accused's

opinion - the deceased might be fighting. This was an unjustified
killing of a human being.

Stand up
accused.

You are
guilty of culpable homicide in Count 1 On Count II accused is found
guilty in terms of his admission of guilt.

The
illegal fire-arm is forfeited to the State.

My
Assessors agree.

W.C.M.MAQUTU

JUDGE

For the
Crown : Mr. Seitlheko and Mr. Rammina

For the
Accused : Mr. Khauoe

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