CRI/T/6/03

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU In the Matter Between:-

Rex

V

Mahloko
Mahloko

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 14^th
November 2005.

Accused
herein appeared before me on a charge of murder it being alleged that
on the 27th October 2001 he unlawfully and intentionally
killed one
Moholi Lekunutu. He pleaded not guilty to the charge and the Crown
led the evidence of three (3) witnesses in support
of its case.

At the
start of the case, the defence admitted three statements namely, the
identifying statement of Lekunutu Lekunutu, the post-mortem
report
and the statement of the investigating officer Detective Sergeant
Moseli.

According
to the evidence before the court facts which are common cause are
that on the night in question, the deceased, the accused,
P.W. 1 and
other

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people
were at the tavern of P.W.2. It was there that the deceased and the
accused had a few words which culminated in the accused
walking up to
the counter where the deceased was standing talking to P.W.2. Both of
them engaged in a fight whereby slaps were
exchanged and the deceased
overpowered the accused, felled him down and P. W. 1 who was playing
snooker near the counter intervened
and separated them.

It is
also common cause that at some stage the accused stabbed the deceased
with a knife on the area of the neck and that the latter
died as a
result of the stab wound as per the admitted post-mortem report.

In his
defence the accused told the Court that the deceased is the one who
slapped him first and after a struggle ensued between
them with him
being felled on the floor, the deceased produced the knife which he
grabbed and stabbed the latter with it. He testified
that he was
acting in self-defence as his life was in danger.

According
to the evidence of the P.W.I Sebolai Rakuba, on that fateful night he
was playing snooker and drinking some at P.W.2's
tavern. It was then
that the deceased went to P.W.2 and talked to him. After a while, the

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accused
who had arrived later, called out to the deceased and told him to
finish talking with P.W.2 as they also wanted to talk
to him to which
the deceased replied that he was also talking to him.

It was
then that the accused approached the counter to where the deceased
was and slapped the latter who, retaliated and felled
the accused on
the floor. According to P.W.I, he intervened and separated the two
and the accused went back to where he had been
sitting in the tavern
whilst the deceased remained where he was and continued talking with
P.W.2.

After a
few minutes, P.W.I who was still playing snooker heard someone shout
out, "Beware, lest blood spills over you!"
It was then that
he saw the deceased running out with blood oozing from his neck
whilst the accused who had once again left his
seat and was at the
counter where the deceased was, followed the latter outside calling
out his name.

P.W.I
testified further that he followed the two out whereby he found the
deceased lying at the tavern gate and apparently no longer
breathing.
During cross-examination, P.W.I disputed the suggestion that he was
too drunk on that night to have properly observed
what was going on.
He stood firm in

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his
testimony and told the Court that since he was also playing snooker
he had not been drinking that much.

P.W.2,
Basia Mahe, in turn corroborated most of P.W.1's evidence especially
on all the material aspects, namely that the accused
called out to
the deceased to stop talking to him as they also wanted to talk to
him (P.W.2) and that it is the accused who left
his seat and slapped
the deceased first. He told the Court that the decease retaliated and
a struggle occurred where the deceased
felled the accused down. The
two were separated and the accused went back to where he had
initially been seated.

It was
P.W.2 's further testimony that although he did not see how the
second encounter happened, he also heard the warning about
the
spilling blood as he was serving his customers and when he looked up
he saw the accused at the counter where the deceased had
been
standing whilst having a conversation with him. He then saw the
deceased running out of the tavern bleeding from the neck
and the
accused followed him after uttering words to the effect that the
deceased had led him into this temptation. P.W.I then
went to find a
telephone and called the police.

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P.W.3,
Detective Trooper Nthako also took the stand and testified that after
he received a report he went out to the village of
ha Potsane where
accused resides whereby he found the latter at home. He issued out
the standard caution, after which the accused
produced a knife and
gave him an explanation. He then proceeded to give him a charge and
arrested him. The knife was handed in
and was marked exhibit 1.

On the
evidence of the whole, the defence did not successfully challenge the
crown's evidence that after the first altercation,
the two were
separated and the accused went back to his seat. Further, that it was
the accused who went to the deceased at the
counter where the
stabbing occurred.

Although
none of the witnesses saw what happened from the evidence, the Court
can reasonably draw the inference that when accused
left his seat and
went to the deceased, it was with the intention to attack the latter
after he was humiliated by him after their
first encounter and as
such he is the one who was armed for the attack as he was
undisputedly the aggressor who had been defeated
in the first round.
The unchallenged evidence further shows that the deceased remained
where he was after the two were separated,
clearly minding his own
business. The Court therefore rejects as totally

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false,
the accused's story that it is the deceased who produced the knife
and threatened to stab him with it.

In
addition, this Court is of the opinion that the question of
self-defence, does not arise since all the elements necessitating

same were lacking herein. For instance, the deceased never provoked
the accused at any stage from the evidence before the court
Secondly,
during their first encounter the two were separated with none of them
having produced any weapon. Thirdly, accused left
his seat and went
back to the deceased who had clearly put the first episode behind him
and continued talking with P.W.2.

Further,
the deceased had clearly overpowered the accused the first time and
did not need the assistance of any weapon. Lastly,
the accused
obviously took the deceased unawares hence why none of the people who
were in the tavern saw anything prior to the
stabbing and the actual
stabbing itself.

The issue
of self-defence is just being raised without any proof substantiating
it. Even assuming that it was the deceased who had
produced the
knife, once he had disarmed him as he alleges, the accused had no
business to go ahead and stab him the way he did
in casu.

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Over and
above all this, although the defence wanted the court to believe that
the knife belonged to the deceased, the accused failed
to show why he
never told this to anyone on the same night even after the incident.
The reason that he gave under cross-examination
that it is because he
was told to leave by P.W.2 is very flimsy at best. His conduct after
the incident is not that of an innocent
man who had been attacked and
acted in self-defence. Under these circumstances, the authorities
cited to this Court on self-defence
do not apply in casu.

VERDICT

It has
been established that the accused is the one who killed the deceased.
The next issue for determination by this Court is whether
the killing
was unlawful and intentional. The Court has rejected the question of
self-defence and the whole of accused's story
as totally false and is
satisfied that indeed the killing was both unlawful and intentional.

Even if
the accused did not possess the direct intention to kill, he ought to
have foreseen that stabbing the deceased with a knife
on the trachea
might cause his death but he went ahead with his action thereby
reconciling himself with the ensuing result. In
other words, he was
reckless whether

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death
would ensue or not. See the case of S v Malinga & Ors 1963 (!) SA
692 at 695.

For the
above reasons, I find the accused guilty of murder. I also find that
there are extenuating circumstances for the reason
that the accused
had been drinking on that night and was clearly not thinking the way
people normally think when sober. Secondly,
there is no evidence of
any prior animosity between the two and/or premeditation of the
killing on the part of the accused.

My
assessors agree.

SENTENCE

The most
difficult part in any trial is that of meting out appropriate
punishment once a person has been found guilty. In casu,
in passing
sentence, I take into consideration several factors including the
extenuating circumstances herein, the fact that as
Mr Hoeane, Counsel
for the defence raised it in mitigation, the accused is a young man
and a first offender with no previous criminal
record. Further, that
this matter has been hanging on his head for the past four years.

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I also
take into account the fact that the deceased's family have lost him
for good including all the support they used to enjoy
from him. On
the other hand upon finishing his sentence, and whilst incarcerated,
the accused's family will still enjoy seeing
and being with him. He
will also be enjoying some basic necessities of life whilst in
prison.

Lastly,
the Court has to show its displeasure at the escalating rate of
murder cases where human life has lost its sanctity to some
members
of society. The sentence therefore has to be both deterrent and
exemplary.

I
accordingly sentence the accused to imprisonment for a period of six
(6) years.

Exhibit 1
shall be forfeited to the state.

N.Majara

JUDGE

For the
Crown : Mr Tlali

Ms
Khoboko

For the
Defence : Mr Hoeane

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Assessors
: Mr Matete

: Mr
Sesioana

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