CRI/T/11/07

 

 

IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-

 

Rex

 

 

Vs.

 

 

TAU LEFU

 

 

JUDGMENT

 

Delivered by the Honourable Madam Justice N. Majara

on the 19^th April 2011

 

Summary

Criminal law – Accused charged with two counts of murder and one of unlawful possession of a firearm - Accused pleading self-defence to first charge and mistake to 2^nd charge – Evidence proving intention on both counts – Defence failing to meet requirements of self-defence – Crown successfully discharging its onus with respect to all three counts – accused guilty as charged. 

 

This is a case of murder wherein the accused is charged with unlawfully and intentionally killing one Moshoeshoe Moshoeshoe and his three (3) months old baby, Nkuebe

 

Moshoeshoe on the 9^th November 2005 at Likoting ha Nyenye, Maputsoe in the district of Leribe.  The accused is also charged with contravening the provisions of Section 3(1) read with Section 8 of the Internal Security (Arms and Ammunition) Act of 1966 (as amended) it being alleged that on the same day he had in his possession a 9 mm pistol with serial numbers 40009920 without a certificate in force at the time. 

 

The matter was first placed on the roll before me on the 14^th September 2010 and postponed by consent to the 4^th April 2011 for hearing to enable the respective Counsel to exchange witnesses’ statements.  However on the 4^th, April the Court was seized with another case and the case was heard on the 6^th April 2011.  After the indictment was read and explained to him, the accused pleaded not guilty to all three (3) charges.

 

Facts that are common cause are that the respective deceased in Counts I and II, a father and his baby son, were shot and killed by the accused on the stated day and that immediately after the incident he surrendered to the police and handed over the firearm, ammunition and brown holster all of which were handed in as exhibits together with the shells, lead and spent bullet that were found at the scene.  It is the accused’s case that when he shot and killed the deceased Moshoeshoe he was acting in self-defence whereas he shot the baby unaware that the deceased was holding him in his arms at the time of the shooting.

 

The Crown called six (6) witnesses to testify to prove its case.  The respective post-mortem and ballistics reports were admitted by the defence and were all handed in to form part of the evidence.   In terms of the evidence of PW1 ‘Mapeiso Masakale, she and the deceased in the first count were fellow tenants but staying in separate houses at a place that was under the care and control of PW5.  She testified that on the fateful day the accused and his companion, DW2 arrived thereat and went to the backhouse which the deceased was renting.  After a short while the witness also went to Moshoeshoe’s place to help with the baby whom she used to assist the latter with at times and she met the two leaving.  Moshoeshoe told her that the accused had said he had come to repair the door to his house and that he had told the accused that he could do that himself. 

 

PW1 carried the child outside and sat under a tree at the forecourt of her house and after some time was joined by the deceased Moshoeshoe.  She handed the baby back to him and went to visit a neighbour with whom she played a game of cards outside.  It was while they were playing that she heard someone, whom she recognized as the accused talking from behind her house and saying “hey you man” to the deceased.  He then fired a shot at the deceased and at that time the latter was still sitting under the tree with the baby in his hands.  After the shot, the witness noticed that the deceased had dropped on his knees, still holding the baby, who appeared to have been shot. 

 

PW.1 and her friend ran away crying and raised an alarm.  It is her evidence that during that time she heard more gunshots and when she came back to the scene she met some people one of whom was holding the baby and they said they were taking him to a hospital.  At that time, people had gathered at the scene and she saw the deceased lying dead in a pool of blood.  The police arrived and took the body away.  The witness stated under cross-examination that she did not know whether the deceased and the accused had quarreled the first time when the latter had arrived with his companion, DW2.  She however stated that when she went to the deceased’s house all three appeared normal without any signs of a fight or quarrel.

 

PW2 ‘Mampho Selonyane testified that on that day she was inside her house when she heard a gun report.  She immediately went out and saw that the deceased and his baby were lying on the ground with the accused standing next to them.  She then saw the latter fire at Moshoeshoe three (3) more times after which he left and disappeared into a donga at the same time putting the firearm on his waist.  The witness added that she went to report the events to PW5 who is the overseer of the premises.  It was her further evidence that she observed wounds and blood on the deceased and the baby who was still alive then.  The baby was then taken to a hospital.

 

PW3 and PW4 are the police officers that were involved in the investigations.  PW3 testified that after receiving a report he and other officers went to the scene where they found the deceased lying prostrate on the ground.  Upon examining him he observed that he had wounds on his body.  His evidence with respect to the number and area of the wounds was not challenged.  The witness added that he found four (4) shells of a 9mm pistol caliber and a fired bullet at the scene and he collected them and handed them over to PW4 to be taken for a ballistics examination.

 

PW4 in turn testified that on the date in question she was on duty when the accused arrived and surrendered.  He reported to her that he had just shot a man and his baby and handed over to her a 9mm firearm with serial numbers 40009920, a brown holster and two (2) magazines with twelve (12) rounds of ammunition.   She asked him for the license of the firearm but the accused replied that he did not have one. 

 

Shortly thereafter, about five (5) women arrived carrying the wounded baby and she asked them to take him to hospital.  She then arrested the accused and gave him the respective charges accordingly.  It was also her testimony that after the baby passed away she changed the second charge namely attempted murder, to that of murder.  She then took the firearm for ballistics examination and filled in the requisite LMP 12 form with the Clerk of Court.

 

The evidence of PW5 and PW6 was basically with respect to who actually owned the premises which PW1 and the deceased were renting.  PW5 is PW6’s maternal aunt.  In terms of their evidence the place used to belong to PW6’s parents and after they both passed on PW6 became the rightful owner.  She added that PW6 is the one who rented the place to the tenants and requested her to oversee the premises and collect the rent as she resides in the Republic of South Africa.

 

In terms of the admitted post-mortem report of Moshoeshoe, the deceased in the first count, his death was due to the destruction of the lung, tissue heart, as well as acute respiratory and circulatory failure.  He had three (3) penetrating gunshot wounds on the anterior chest which existed at the back. 

 

The post-mortem of the deceased baby, Nkuebe reveals that the cause of death was a multiple destruction of the internal organs and severe blood loss.  Other remarks are that he had an entry gun-shot wound on the right at the back and an exit wound on the left anterior upper chest.  These wounds are in my opinion congruent with the evidence that the baby was shot from the back while in the arms of his deceased father.

 

On the other hand the defence evidence consisted of the testimony of the accused and his witness Setopa Palime who had accompanied him to the deceased’s house earlier on before the shooting incident took place.  Under oath the accused told the Court that he did not know the deceased and/or his name and had never seen him prior to the incident.   That on that fateful day he and DW2 had gone to the place to repair the door lock.  The deceased started swearing at him and pulled a knife out of a drawer and threatened to kill him with it.  The accused then assisted DW2 who had a problem walking to get away from the deceased.  

 

It was his further testimony that after a while he went back to the place with the intention to change the locks as the place belongs to him and he had never rented it out to the deceased.  As he approached the deceased he noticed that the latter was holding something which he could not figure out but concluded that it was a knife.  The deceased charged at him and he shot him in self-defence.  He admitted that he shot him several times though he could not recall the exact number of times. 

 

The accused further told the Court that at that time he was not aware that the deceased was holding his three month old baby and that he shot the latter unintentionally.  The accused also stated that sometime in the past he had been stabbed with a knife on the neck and had since then had a fear of knives that is why he thought Moshoeshoe might be holding one and would kill him with it.

 

DW2 told the Court that he did go with the accused to the place on that day and that the deceased had sworn at the accused and threatened to kill him.  He added that they had left the place and he had proceeded to his house.  He knew nothing about what took place with regard to the shooting afterwards but told the Court that the accused had told him that he was scared of knives since he had been stabbed with one in the past.  This is basically the evidence that was placed before the Court.

 

Since the issue of the shooting is common cause the question that the Court has to determine is whether the accused successfully established that when he shot the deceased and the baby in the process, he was as a matter of fact acting in self defence and was at that time unaware of the presence of the baby. 

 

Authorities abound that where the accused pleads self-defence to a charge of murder, the Crown bears the onus to prove that he unlawfully and intentionally killed the deceased and that he had the requisite men’s rea.  If at the end of the trial, the Court is left with a reasonable doubt about whether he had acted in self-defence the Crown will have failed to discharge that onus.  To this end, see LH Hoffmann and DT Zeffert in: The South African Law of Evidence Fourth Edition p497.

 

The Crown’s evidence is to the effect that the accused shot at the deceased as he was seated under a tree holding his baby.  After the first shot, the deceased dropped on his knees and the accused continued to shoot him about three times more after which he fell prostrate on the ground.  While is was suggested by Mr. Snyman that it was not possible for a man that was shot while on his knees to fall sprawled on the ground, no expert evidence was placed before this Court in this regard.  As such the suggestion remained the opinion of the defence Counsel which does not carry any weight.  I therefore find no reason to disbelieve PW1 and PW2’s evidence in this regard.   

 

In addition, the accused does not deny that he shot the deceased about four times and that after the first shot he had gone down on his knees.  Assuming that he had been threatened with assault by the latter as he suggested, the accused failed to explain why he had to shoot the deceased so many times even after he had fallen down, fatally injured.  In addition, even if I were to accept that the first shot was fired at the deceased in self-defence, it is my view that it ought to have been sufficient to avert the alleged threat to the accused’ life.

 

It is also the accused‘s case that during the first encounter, the deceased threatened to kill him with a knife whereupon he left.  He adds that he went back the second time and upon approaching, the deceased charged towards him and he believed that he had a knife and would kill him.  There is however no evidence before the Court that the deceased uttered any words at that time.   Even the accused did not state so.  It is also not his evidence that the deceased did as a matter of fact attack him, with a knife or any other weapon.  Rather, he testified that he believed the deceased would kill him because he had once been stabbed with a knife.  It is not his evidence that he actually saw a knife or any other weapon in the possession of the deceased.  Instead, the un-controverted evidence is that at the time the accused shot him, the deceased was holding his baby in his arms.

 

Whilst it is a trite principle of law that the onus of disproving self-defence rests on the Crown, it is also trite that in order to succeed in his plea, the accused has to satisfy certain legal requirements namely that, there was an unlawful attack; upon a legal interest; which had commenced or was imminent and that the defence had been directed against the attacker and was necessary to avert the attack and that the means he used were reasonable to avert the attack.  This is stated in amongst others, JM Burchell’s South African Criminal Law and Procedure  Vol. 1; General Principles of Criminal 3^rd Edition pp 73-79.

 

In the present case, the evidence has shown that there was no attack that had commenced or was imminent upon the accused from the deceased at the time he shot him.  Rather, the accused inferred from their earlier encounter, assuming his testimony to be true, that the deceased could be armed with a knife.  It follows naturally that if there was no attack at the time he decided to shoot, there was no danger real or imagined towards his person which he had to avert.  That being the case it is my view that the other requirements do not even come into play.

 

On the contrary, the unchallenged evidence shows that upon his arrival the second time, the accused called out to the deceased ‘hey you man!’ and proceeded to shoot immediately.  In my view, this evinces that he was the aggressor, even if I were to believe that he had indeed been threatened by the deceased during the first encounter.  Secondly, even if this Court could believe that the deceased had indeed threatened him, the accused has failed to show why he saw the need to pump more than three bullets into his body even after he had already fallen down.  Instead of showing that he was acting in self-defence, the evidence has established that his entire conduct was a manifestation of a clear and direct intent to kill the deceased.

 

Further, it is my view that if the accused is indeed afraid of a knife as he would want us to believe, his conduct on that day totally belies this fact in that he went back to the deceased’s place who according to his version had threatened to kill him with a knife and from which he fled in the first place.  The reason that he gave is that he was going to lock the premises.  I do not understand why he thought he would no longer be in danger.  It is not even clear why he decided to wake up one day and attempted to evict the deceased who had been in peaceful occupation of that property for some time in terms of the evidence. 

 

Furthermore, a lot of things do not make sense, namely that the deceased was not the only tenant who was renting the place at that time, yet the accused decided to evict him only and extra-judicially too without any recourse to the law.  That in itself was wrong on his part.

 

Secondly, the evidence has shown that the deceased was not staying at the premises unlawfully but had been let the property by PW5 and PW6.  In terms of his evidence, they had never met before therefore and naturally the deceased understandably did not know him and/or his claim of ownership of the premises.  His resistance to what he obviously saw as interference and trouble-making on the part of the accused was therefore nothing out of the ordinary.  By the same token, the accused had no right to go back to the premises without involving either the police or the chief even if his claim was bona fide and could justify his intention to change the locks. 

 

As I have already stated his actions on that day were a clear manifestation of his aggression although he would want us to believe that it is the deceased who was the aggressor.   At any rate, it is also very easy for one to say things about a dead person because they are no longer able to defend themselves against such allegations and/or give their side of the story.  In addition, the also lied about such menial things as the identity of the deceased whom he told the Court he did not know at all, a man he shot and killed, yet in the same breathe he repeatedly said upon his arrival he called him by his name Moshoeshoe, and asked him what put him there as to cause this Court doubt the veracity of the rest of his testimony.  However, in spite of all these, the events of that day are damning against the accused person.

 

In my further opinion, nothing turns on the issue of who really owns the place insofar as the shooting incident is concerned.   Instead it is my view that the accused epitomizes those male relatives who think they can ride roughshod over female children once their parents have passed on and reap where they have not sown.  The evidence that has been placed before this Court is that that the place belonged to PW6’s parents.   Even the letter that the accused wishes to rely on as proof that the place is his, clearly came after the fact namely, in 2010 when the incident occurred in 2009, not to mention that it was written by his immediate family without any involvement of other family members and PW6 to whose parents the place undisputedly belonged, she being their only child and the heir apparent in my opinion.

 

Over and above this, the evidence has shown that the deceased was holding a very small baby in his arms and unless this Court is expected to believe that he was not very bright, I do not see how he could decide to get into a fight and place the baby in danger.  The accused does not even suggest that when he and DW2 left the first time, he had indicated to the deceased that he would be back which might have given the latter the reason to be armed and await his second arrival.  The evidence before the Court is that the deceased simply went to sit under the tree with his baby in his arms and was minding his own business when the accused, clearly with his murderous intentions came, called out to him ‘hey you man’ and mercilessly shot him without any provocation and/or reasonable cause.  As I said, the accused obviously had a mission to accomplish that day and this was to shoot and kill the deceased and he accomplished it to perfection. 

 

Therefore nothing turns on his evidence and that of DW2 that the deceased had earlier threatened to kill him with a knife.  As I have stated, even if he had, that was no reason for the accused to go back and kill him in the cold blooded manner he did.  It is thus my finding that his version of events is not only highly improbable but is false beyond doubt.  Accordingly, with the evidence it placed before this Court, the Crown has successfully discharged its onus of disproving self-defence as it was pleaded by the accused.

 

This brings me to consider the second count of the murder of the three month old baby.  Per the accused’ version, at the time he shot the deceased, he was not aware of the presence of the baby.  The unchallenged evidence of PW1 is that at that time the deceased was sitting outside under a tree with the baby in his arms which was wrapped in a white baby-blanket.  It must be remembered that this was during the month of November, a very warm season in this country which would not necessitate that the baby be all wrapped up as would be the case during the winter months.  Anyway even a child that is wrapped up against a bitter cold up is clearly visible by its form and in the manner which the person holding it will be doing so.  It therefore defies logic why in the light of these factors the accused thought the baby was some weapon, a knife at that.  This suggestion is in my opinion not only illogical but downright nonsensical.  This Court cannot be expected to believe such a blatant lie. 

 

At any rate, the law is very clear that where one manifests a clear intention to kill A, but instead kills C, a situation referred to as aberratio ictus, that factor does not exculpate him from his moral blameworthiness.  Authorities abound that because of his intention to kill the one, he is guilty of the murder of the other.  This was stated in inter alia, the cases of R v Kuzwayo 1949 (3) SA 761 and R v Koza 1959 (4) SA 555.   By the same analogy, for the reason that the accused had the intention to kill the deceased and killed his baby in the process, it is my finding that he is also guilty of the baby’s murder.

 

On the other hand, even if this Court were to believe that the accused did not intent to kill the baby, the evidence suggests that he acted recklessly without any care whether the baby would get hurt in the process and that death might ensue.  His actions lead me to conclude that, to borrow the words of JM Burchell (Supra) p 259, ‘he accepted that risk into the bargain’.   No-one in their right mind goes around wielding a fire-arm in the presence of children especially three month olds let alone fire at a person who is holding it in his arms only to turn around and plead mistake.  

 

Further, PW4’s un-rebutted evidence is that upon his arrival at the police station the accused told her that he had just shot a man and his baby.  Though the witness was challenged on this fact under cross-examination, she remained firm in her evidence, and as Mr. Tlali correctly stated in his submissions, no reason was suggested why she would fabricate this.  She also stated that she gave the accused the respective charges of murder and the initial one of attempted murder in the second count on the basis of the accused’ report of the incident namely that he had also shot the baby.

 

Coming to the last count, Section (3) (1) of the Internal Security Act of 1966 under which this charge was preferred against the accused reads as follows:-

“Subject to the provisions of this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition to which this part of this Act applies without holding a firearm certificate in force at the time, or otherwise than is authorized by such a certificate, or in the case of ammunition, in quantities in excess of those so authorized; ….”

 

Section 8 which is the other applicable section under which the accused was charged, reads as follows in relevant parts:-

“(1) Any member of the police force may demand from any person, whom he believes to be in possession of a firearm or ammunition to which this Part applies, the production of his firearm certificate.

 (2) If any person upon whom a demand is so made fails to produce the certificate, or to permit the member of the police force to read the certificate, or to show that he is entitled by virtue of this Act to have the firearm or ammunition in his possession without holding a firearm certificate, …

(3)If any person fails to …., he shall be guilty of an offence and liable on conviction to the penalty prescribed in section 43, …” (emphasis provided)

 

It is the evidence of PW4 that after the accused surrendered and handed over the fire-arm, holster and ammunition, she asked him for its certificate and the accused failed to produce same and told her that he does not have one.  It was submitted on behalf of the accused that the fire-arm belongs to him and that the Crown did not lead any evidence that it can be otherwise.  Further that the police did not investigate whether the firearm was registered on the firearm register in Lesotho and that the accused is guilty only of possession thereof without a firearm certificate in Lesotho.

 

It will become immediately apparent that in terms of the Statute under which the accused is charged, ownership is not the issue, but the fact of the possession itself which has to be accompanied by a proper certificate.  Therefore, no onus lies on the police to investigate whether a firearm is registered but rather on the person who is found in possession thereof to produce a certificate.  Nor is there any onus on the part of the Crown to lead evidence in respect of any security related intentions or transgressions as it was further submitted.  The applicable statutory provisions do no require that.

 

The submission that the accused is guilty only of possession of a firearm without a firearm certificate in Lesotho does not in my view take his case anywhere.  On the contrary, I find it to actually be an admission of guilt on the part of the defence.   The accused is facing charges in Lesotho where this Court has jurisdiction; where the law prescribes that one who has acquired or is found in possession has to have a certificate.  He was found in possession thereof without same here in Lesotho and to-date, so many years later, he has not produced such certificate and/or license. 

 

Unfortunately, I cannot say anything about the document that was shown to PW4 during cross-examination which is purportedly a South African license, bearing someone else’s names.  I have no clue what its purpose was, I did not even get to see it as it was not exhibited before this Court.   Suffice it for me to say that it does not help the defence case at all.  Thus, on the basis of the evidence that it placed before this Court with respect to this count, it is my finding that the Crown has successfully discharged its onus.

 

It is for all the foregoing reasons that I find that the Crown has successfully proved its case with respect to all the three (3) counts beyond any reasonable doubt.  I therefore find as follows:

 

VERDICT

Count I    :       Guilty as charged

Count II   :       Guilty as charged

Count III  :       Guilty as charged

 

I have also found that an extenuating factor does exist in this case namely, the accused’ s belief that the premises that the deceased was renting are his and that this gave him the right to go and repair and/or change the locks to the door if resisted.

 

My assessors agree with me.

 

 

 

SENTENCE

The fact that sentencing is the most difficult part of any criminal trial cannot be overemphasized.  This is more so in the case where the Court has found the accused guilty of murder of two people such as in casu.  Given these circumstances, the Court needs to carefully consider and always bear in mind the need to strike a proper balance between the triad of factors namely, the accused, the nature of the offence and the interests of society.

 

Courts are always decrying the highly disturbing phenomenon of the unjustifiable taking of other people’s lives.  This country has too high an incidence of murders for such a small population that it now a serious cause for concern.  People are killed for the flimsiest of reasons and/or for nothing such as the Court has found in this case.  Two precious lives were lost in one of the most unfortunate ways in this case.  A firearm is a lethal weapon and there can never be any argument about this.  It is actually a miracle that some people do survive to tell the story after having been shot.  When one shoots another especially not only once, twice or thrice but four times, then such a person means business, i.e. to kill the other person.

 

These are the people that have to be strongly reprimanded and severely punished for their lawless and brutal actions.  I am however mindful that I have found that an extenuating factor does exist in this case therefore I cannot give capital punishment.  This means that I cannot give the sentence of capital punishment and the only other option is a custodial sentence in line with the provisions of Section 314 the Criminal Procedure and Evidence Act of 1981.

 

While Mr. Snyman pleaded with the Court to give the accused a suspended sentence, Section 314 of the CP& E does not permit suspension or postponement of a sentence where one has been convicted of murder.  At any rate, it is my opinion that aside from that provision, this is one of those cases in which the Court has to mete out punishment that will not only serve as a deterrent, but one that will also be exemplary.   Thus, a suspended sentence would not only be way too lenient but would actually be a mockery and a serious travesty of justice.

 

I also took into account the fact that the death of the deceased and his baby who were killed in cold blood in broad daylight caused terrible pain to their loved ones especially his wife and the mother of the baby and has left a permanent void in their lives.  They and indeed the rest of the community want to see justice done even if that can never bring the deceased persons back.   The emergent phenomenon of self-help also deserves the Courts’ serious consideration and should be discouraged by amongst others, the passing of serious sentences that reflect the dim view with which the justice system takes violent crime. 

 

There can also be no doubt that the deceased’ loved ones would have liked to have had more time with them and to see the baby grow into a person who would make something meaningful out of him life.  Alas, this is no longer to be. 

 

On the other hand, I have also considered the plea in mitigation namely that at his prime age, the accused is a first offender, he surrendered to the police and he voluntarily handed over the murder weapon.  He has faithfully attended his remands and stood his trial to finish.  He also has a big family to support and care for.  Further, the loss of the two lives has been on his conscience ever since the incident took place.

 

While I do accept that a custodial sentence will leave the accused’ dependants without a husband, father and breadwinner for crimes they had nothing to do with, unfortunately this cannot be used as an escape route for the accused and other people whose terrible actions deserve censure. 

 

In addition, it is a fact as was stated by the learned Molai J in Rex v Moferefere Mphuthi CRI/T/107/2001 (unreported) of which I am in respectful agreement that, Lesotho prisons are not some Nazi concentration camps where people used to be subjected to the most inhumane treatment. Instead, our convicts are given the basic necessities of life free of charge. They undergo rehabilitation so that they can fit back into society at the end of their term.  They also get different kinds of training with the aim to help them make a better life for themselves and their dependants once they are out of prison.  Over and above this, they still enjoy visits from family and friends until they finish serving their sentence.  

 

Furthermore, as I have already stated, the deceased persons’ family and loved ones will never ever see them again.  Bearing all these factors in mind I accordingly sentence the accused as follows:

 

Count I    :       Imprisonment for a period of eighteen (18) years.

Count II   :       Imprisonment for a period of eighteen (18) years.

Count III  :       A fine of Five (5) Hundred Maloti or

imprisonment for a period of six (6) months in default

payment.

 

I also order that the sentences in the first two counts are to run consecutively, whereas the sentence in the third count will run concurrently with the first two.

 

Exhibits 1 and 2 collectively shall be forfeited to the State.

 

 

 

 

 

N. MAJARA

JUDGE

 

 

 

For the Crown  :       Mr. Tlali

 

For the Defence        :       Mr. Snyman

 

 

Assessors         :       Mr. Monyane

                                Mr. Lekomola