CRI/T/143/2003

N THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

VS

1. MOLEFI
SEMETHE

2. THABO
MOTOPI

JUDGEMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 23rd August 2005

This is
the court's judgement. In this case the two accused are charged with
murder.

The facts
are that on the 15th December there was a traffic jam at the Pitso
Ground Taxi Rank near the Sefika site. This fact is
common cause.

It is
also common cause that the accused were in a red taxi, both sides
agree on this. Both sides also agree that the accused may
have been
blocking the road. According to the accused they had done so
legitimately because the conductor

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stopped
traffic so that the red taxi could park in its platform where
vehicles going to Mazenod, stop.

The Crown
is unable to challenge this evidence. But then 'the conflict of
evidence occurs. Although it is common cause that the
deceased went
to this red taxi, according to Pwl - the wife of the deceased who was
there, the deceased asked the driver of the
vehicle the second
accused to remove that taxi and open up the road. He was not asking
he was demanding, according to Pwl - the
wife of the deceased. The
taxi driver who is Accused 2 took offence. He told the deceased (who
was the driver of a vehicle that
was two vehicles behind the taxi of
Accused 2) that the road does not belong to the deceased's mother.
Just as the driver of the
red taxi seemed to be about to drive the
red taxi, he suddenly went out of the taxi, and with a stick hit her
late husband on the
head. The deceased caught the stick.

Accused 2
(the driver of the red taxi) called Accused 1 to come and help him.
Accused 1 came and stabbed her late husband with a
knife and the
knife stuck and then there was a commotion there. Accused 1 and 2 ran
away.

There was
a free for all in which other people from other taxis joined in the
fight. This is the evidence of the wife of the deceased.
She didn't
know these two accused before that day.

2

The two
accused came and gave evidence. Accused 2 said it is rather the
deceased who came angrily and told him that that road does
not belong
to his mother. The deceased when he said this, had taken the keys of
the red taxi. All Accused 2 did was to say "please
give us the
keys, give me the keys of the taxi" suddenly the deceased pulled
him out of the vehicle, and as the deceased did
so, hit Accused 2
with a fist.

At that
time Accused 1 was pleading with him to hand back the keys. The
deceased had hit Accused 2 with a fist, but as deceased
was about to
hit him the second time Accused 2 took his stick and tried to hit the
deceased. But the deceased held the stick. From
that moment this
became a free for all fight.

The two
accused ran away leaving the taxi there. They were brought by Pw2 the
following day to the Police. They never knew that
the deceased had
been killed. This was so, although the owner of the taxi had come to
Maseru after they had reported to him at
Ha 'Masana 20 kilometres
away that they had left the taxi in Maseru. He came to Maseru to get
his taxi. That is where he met the
Police. The Police asked from the
owner of the taxi for the two (2) accused.

The
evidence of Pwl that is the wife of the deceased is that her husband
died almost instantly. I do not accept that the Police
could not have
told the owner of the vehicle about

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that the
death of deceased. I accept Police make many mistakes, this one I
don't believe they could make. The evidence of Accused
1 is the same.
Pw2 a relative of Accused 2 told the court that they repeated the
same version of events to her.

Pw2, the
aunt or the sister of Accused 2 could not take these two accused to
the Police without knowing why or being told why. Pw2
told the court
he took the two accused to the Police where they handed a knife and a
stick.

The stick
cannot be found in the Exhibit Room, the knife too cannot be found.
This evidence was not challenged. Yet the two accused
say no, a knife
was not handed in. It is false or the sister or aunt of Accused 2 is
mistaken, such a thing never happened, only
a stick was handed in,
but there was no knife.

According
to Pwl, the wife of the deceased the knife that stabbed her husband
stuck. The person who stabbed her husband tried to
pull it out but
failed. He then ran away. That indicates there ought to have been a
third knife before court. The court was not
told what had happened to
the knife that had stuck to the deceased.

Now this
is the evidence. What is true?

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In the
first place the accused told me the truth when they say they could
just leave a taxi just like that. If indeed they were
trying to get
the keys from the deceased when the fight started they could not have
run away without them. I believe Accused 1
had stabbed the deceased
and he tried to pull out the knife, it couldn't come out. That is why
he ran away.

The
medical evidence shows that it was a very deep wound 30cm long. The
deceased bled into the chest - what you call haemothorax,
800ml of
blood were found in the chest, the lung collapsed.

I accept
that it was Accused l's knife which stuck to the back of the deceased
and that caused this death. Because it is common
cause that Accused 2
was just a driver and Pwl told the court that it was Accused 1 who
stabbed deceased.

The
accused should not be convicted merely because they are liars. But
their lies with other evidence can give the crown case different

complexion. In other words a lie in itself does not lead to
conviction but it can colour the evidence and even strengthen the
evidence of the Crown where it might have been weak. The accused came
before the court. They lied. Yes, they told their aunt Pw2
the same
lies, but then Pw2 told the court the truth of what she did with the
accused.

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They knew
when they ran away that one of them had injured the deceased fatally.
They say they didn't know the deceased is dead when
they surrendered
to the Police. If the key of the vehicle was in the hands of the
deceased when he died and they ran away as the
two accused say, the
owner of the vehicle ought to have got the red taxi from the Police.
We are not told what happened to the
keys of the vehicle. I do not
believe the deceased had the keys of the taxi in his possession. Even
if he had, when the police
handed the keys to the owner they could
not hide the death of the deceased. I have already said the police
can make many mistakes,
but not that one.

Why did
Accused 1 bring a second knife? It was to disguise the fact that his
knife was the one which had stuck to the deceased.

Now,
Counsel for the accused said the wife of the deceased has an interest
adverse to the accused. I note that she is a single witness.

It is a
matter of common sense that in the evaluation of evidence the trial
court should not be too inclined to convict on the evidence
of a
single witness. The reason being that it cannot be checked against
anything. According to Hoffman and Hoffmann ad Zeffertt
the South
African Law of Evidence 4th Edition page 566, the cautionary rule in
assessing the evidence of a single witness evolved
in England.
Although

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there is
no specific rule of law against convicting on the evidence of a
single witness

"there
must obviously be many cases in which it would be unsafe to do so".
Hoffmann and Zeffertt in The South African
Law of Evidence 4th
Edition at page 567 concludes that "therefore, the function of
corroboration is to satisfy caution rather
than a mandatory rule of
law."

To put in
perspective - this issue of whether a court can convict on the
evidence of a single witness, I refer to Section 238 (1)
or the
Criminal Procedure and Evidence Act 1981 which empowers our courts to
convict provided such evidence is from a competent
and credible
witness. Nevertheless the courts have evolved a rule of practice
requiring that the court should demonstrate caution
before it can
convict on the evidence of a single witness. Furthermore, such
evidence must be satisfactory in all material respects.
Yes,, this
witness may be the wife of the deceased, but his evidence was
satisfactory and convicting in all material respects.
The court must
be on guard that a wife may exaggerate and tell outright lies to
secure a conviction.

But in
this case there is nowhere has it had been demonstrated that she lied
or exaggerated anything in her evidence. But the accused,
their
evidence and their behaviour corroborates her story. When they
realized that the knife of the first accused cannot be pulled
out of
the deceased they ran

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ran away.
There is no way that they could just leave the taxi there knowing
that it could be stolen. They didn't even know if the
deceased whom
they claim had taken away their key was a vehicle thief. If what they
allege about the deceased is true, they could
not leave the keys of
their taxi in his hands. They could not take that risk of leaving the
vehicle and the key with such a person.

I reject
their story and their lies and behaviour corroborate the sole
evidence of one witness Pwl - the wife of the deceased.

In
cautioning myself against convicting on the evidence of a single
witness I am relying on the case of Rex vs Mokoena (3) SA 81
A.D.
There it was said the court should be very careful in convicting on
the evidence of a single witness especially when he has
an interest
in the case. I am satisfied therefore that the evidence of Pwl is
backed up by circumstantial evidence quite apart
from its own merits.

Now did
these accused intend to kill the deceased? There is no evidence that
shows that they intended to kill the deceased. It's
a fight that
developed there and then unfortunately one of the accused used a
knife. For me to come to the conclusion that he intended
to kill it
must be the sole conclusion to come to, dolus iventualis. See the
case of S v Sigwahla 1967 (4) SA 566.

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The
conduct of the deceased also provoked the accused, therefore the
court has to take that into account but that doesn't give whoever

stabbed the deceased the right to kill the deceased. It doesn't mean
even if you are provoked you should start killing people.

Now
having acquitted the accused of murder following the case of Rex vs
Sigwahla 1967 (4) SA 566 at page 667, I come to what each
of the
accused is guilty of. I am not sure that Accused 2 joined common
purpose of negligently killing the deceased. He used a
stick. Accused
1 came running and used a knife and stabbed the deceased behind
penetrating his left lung killing the deceased.
There is no evidence
that shows Accused 2 knew or expected Accused 1 to use a knife on the
deceased.

Stand up
Accused 2. I find you guilty of assault common. You may sit down.

Stand up
Accused 1. I find you guilty of culpable homicide. You may sit down.

SENTENCE

Stand up
Accused. I have heard your Counsel in this matter. It is a very
moving plea. You are of course first offenders. It is court's
policy
to keep people out of jail as first

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offenders,
but in doing all this, the court has to weigh many things.

Now let's
come to the difficult area of sentence. To be told that you have
families, you are married it is something that is important.
But then
you are not the only people who are married you know. The deceased
also was married. All the things that are being said
about you apply
to him. His children will have no bread winner. Even if their mother
works they still want their father. So they
have lost a loved one. So
that makes your argument about your personal circumstances virtually
balanced by personal circumstances
of the deceased family. So,
because the deceased's family is going to suffer like your families I
don't find this line of your
plea very helpful. You cannot cause
death of a person and expect problems of your family to be looked at
alone. What about those
of the deceased?

You see
this court must look at on both sides, so I have this difficult duty.
The use of knives is a terrible thing. If Accused
1 had not used a
knife, the deceased would be alive, and I would give you a sentence
that is as light as that of Accused 2, but
then you have used a
knife. I have to discourage people from using knives because they
kill people. So I have got to hit you a
bit hard.

I
sentence you Accused 1 to four (4) years imprisonment.

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Accused
2, you have been found guilty of assault common and the Doctor didn't
even see the wound you caused because a stick doesn't
always kill.
This fact I have to take into account. Just to underline the
disparity of gravity of what has happened here, I will
sentence you
to six (6) months imprisonment or a fine of five hundred Maluti
(M500.00). This is just to demonstrate that, had your
colleague not
used a knife, the deceased would be alive. This is my judgement.

The court
will adjourn.

W.C.M.
MAQUTU

JUDGE

For the
Crown : Miss Ntene

Miss
Mabea For Accused : Mr. Shale

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