CRI/T/30/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of:-

R E X

vs

JULIUS
MOTLATSI KOLOBE

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 9th day of June,
1987

The
accused is charged with the murder of the Montsi Motloli on the 31st
July, 1982 at or near Ongeluk's Nek in the district of
Quthing. He
pleaded not guilty.

The
defence admitted the depositions of the following witnesses at the
preparatory examination: E.P. Matli who is the magistrate
who took
down the "confession" made by the accused; Detective
Trooper Sello whose evidence was thata he arrested the
accused and
charged him with murder. The accused explained to him that he got rid
of his service rifle by throwing it into Senqu
River when he
absconded to Transkei; 'Mabataung Khauoe who identified the corpse of
Montsi Motloli to the doctor who performed
the post-mortem
examination and the report of the post-mortem examination was also
admitted by the defence.

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The
post-mortem examination report reveals that the cause of death was
gun shot wounds on various parts of the body, the detailed

examination revealed the following:.

"Right Elbow

The lower end of the humerus and upper end of the ulra was completely
shattered.

Right Shoulder

The wound was traced medically until it entered the right lung apex
causing laceration.

From the right chest the wound was traced upwards through the neck
with an exit right temporal region thus shattering the base
of the
skull including temporal bone, parietal and occipital bones and
sphenoid as well as the brain tissue.

Wound Left Neck

Wound tunnelled inside shattering the left mandible and the base of
the skull and brain tissue probably with exit right orbit or
right
mandible. Pieces of metal were found on the left occipital region.

Abdomen

Wound on the right hypochondrium has shattered the lower surface of
the right hepatic lobe including the stomach, duodenum and
transverse
colon and jejunum.

The lateral quadriceps lacerated but no bullet found. The bone
intact."

The first
witness called by the Crown is Private Mateka Mojapela who testified
that in 1982 he was already a member of the Royal
Lesotho Defence
Force. In July, 1982 his platoon was stationed at Ongeluk's Nek which
is on the border between Lesotho and the
Republic of South Africa. At
that time there were many insurgents resident in

3

the
Republic of South Africa who crossed the border into Lesotho and
killed innocent people. As a result of the insurgency the armed

forces were on the alert all the time. Private Mateka told the. Court
that both the deceased and the accused were members of his
platoon
under the command of Lieutenant Ntsoele assisted by Warrant Officer
Mokhele. On the 31st July, 1982 he was on sentry duty
from . morning
to 6.00 p.m. and was relieved by the. deceased who was armed with a
"baretta" automatic rifle. After he
was relieved by the
deceased,he remained in the sentry-room for a., long time in the
company of the deceased, the accused and others.
He eventually
decided to go to his dormitory. After he had arrived at his dormitory
he heard a gun. report coming from the direction
of the sentry. The
shooting came from an automatic rifle; he and the other soldiers
approached the sentry cautiously and found
that the deceased was dead
and lying on the ground only a few paces from the sentry room. His
head was covered with blood, his
rifle was still slung from his
shoulder. When a parade was formed it was discovered that the accused
was missing.

Mojela
Hlajoane testified that in 1982 he was in the same platoon with the
deceased and the accused. On the 31st July, ,1982 he
left the camp at
about 10.00 a.m. and went to the village where he was going to buy
some- sheep. He was. accompanied by the deceased...
When they came to
Sefompha's shop they found the. accused and one Khomoeasera. Deceased
greeted them and referred to them as "my
fellow boys"
(bashaana ba heso).The accused then called the deceased "Mankhoe"-
and remarked that ..... he had realised
that the deceased had made
himself a boss in their platoon because he thought they feared him. A
fierce quarrel ensued ...between
them till he (the witness)
intervened and pulled the deceased out of the shop. They went to the
camp leaving the accused and Khomoeasera
at the shop. It was very
clear that the deceased was very

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angry and
informed him that he would report the matter to their senior
officers. When they arrived at the camp he went to his tent.

Mojela
further told the Court that later that evening he saw the accused and
the deceased near the storeroom. The accused was holding
the deceased
by his jacket, but because he was some distance from them . he did
not hear what the accused was saying. As a radio
operator he was in a
hurry to get into the radio room to make a call and had no chance to
go to them. He entered into the radio
room and did not know what
finally happened to them. Later that evening he again met the
deceased; they collected their meals and
went to the sentry room
where the deceased was to resume duty at 6.00 p.m. They were joined
by Private Mateka, Private Fantsi and
the accused. They all set down
in the sentry room and ate their meals. The accused sat behind them
and took no part in the conversation.
After about fifteen minutes he,
together with Private Fantsi and Private Mateka went to their
respective duty posts leaving the
accused and the deceased in the
sentry room. A very short time after he had entered into the radio
room he heard a gun report from
an automatic rifle. He got out and
crawled towards the sentry room from where the gun report came. When
he arrived there deceased
was already dead and the accused had
vanished into thin air. The deceased was lying on the ground opposite
the window of the sentry
room. His rifle was still slung from his
shoulder. The accused and the deceased appeared to be moderately or
slightly drunk..

Under
cross-examination Private Mojela admitted that the accused and the
deceased were just about to exchange blows when he pulled
the
deceased out of the shop. He denied that at that stage the deceased
was pointing a finger at the accused and swearing at him.

The Crown
handed in a statement made by the accused to a magistrate and
submitted that that statement is a confession. At the close
of the

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Crown
case the defence applied for the discharge of the accused on the
ground that the Crown had failed to establish a prima facie
case. It
was agreed by both counsel that the case for the Crown rested on the
so-called confession, The Court ruled that although
the statement was
not a confession,inasmuch as the accused intended to exculpate
himself, there was a prima facie case.

In his
testimony before this Court the accused repeated almost word for word
what he had said before the magistrate. He admits that
he had a
quarrel with the deceased at Sefompha's Shop but his version of how
the quarrel started differs from that of the Crown
witness. At the
shop he sat behind the door while his colleague Khomoeasera sat
directly opposite the doorway. While they were
sitting and drinking
beer he noticed that Khomoeasera was looking outside and giggling. He
asked him what he was looking at. Khomoeasera
said that he was
looking at "mankhoe". He (the witness) peeped through the
door and saw the deceased who was also laughing.
The deceased entered
into the shop and suddenly swore at them and asked them why they
called him "mankhoe"". The
accused says that he denied
that he had referred to him as "mankhoe". The accused was
furious and refused to accept that
it was Khomoeasera who had called
him by that name. At last they agreed that as members of the armed
forces it was not good conduct
that they should fight or quarrel in
public. They would settle their dispute in the camp. After that the
deceased left but he was
apparently still very angry.

The
accused said that when he arrived at the camp that evening the
deceased attached him when they met near the dormitories. They
fought
for a long time till they were tired. He denies that at one time he
was holding the deceased by his jacket in an attempt
to strangle him.
After the fight he went to the office and checked a duty roster which
showed that

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he was to
resume sentry duties at 6.00 p.m. He arrived at the sentry and found
the privates referred to above by the Crown witnesses.
He did not
participate in the conversation because none of the witnesses or the
deceased spoke to him. He decided to keep quiet
because he was of the
opinion that he would re-start the quarrel he had with the deceased.
After all the privates had left the
sentry room to go and resume
their duties at various places within the camp, he sat on a counter
in the sentry room. A short time
after their departure he heard the
sound similar to that of a gun when it is being cocked and when he
looked through the doorway
he-saw a person pointing a gun at him. He
dived and rushed to the door in a zigzag line. Coming to the door he
pushed it and hit
that person with it and closed it. He jumped back
to the counter and saw a person or something like a human being dash
past the
window on the side of the sentry room. He shot at that
person or thing with his automatic rifle. He is unable to estimate
how many
bullets were discharged from his automatic rifle when he
pressed the trigger.

He went
out of the sentry room and turned towards the window where he had
shot that something like a human being. He saw a person
lying on the
ground and he again jumped to one side and shot at that person
because he thought he was waylaying him. He saw a rifle
similar to
his near that person and realised that he had shot one of his
colleagues. He took the rifle and proceeded towards the
dormitories
intending to report thy matter to his colleagues. On the way he
changed his mind because he remembered that senior
officers were
absent and if he had shot one of his colleagues

there
would be a. confusion leading to a fight amongst themselves. He,
therefore, decided to go to his home. He leaned the deceased's
rifle
against the wall and went away.He went to his home and reported what
he had done to his mother before fleeing to the Republic
of South
Africa where he remained for one and half years. He threw his rifle
into the Orange River before he entered into

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Transkei.

It is
clear from the summary of the evidence I have given above that there
is no eye-witness to the shooting arid that the Court
shall rely on
what the accused has said. Briefly stated the story of the accused is
that he was defending himself because he thought
his life was in
danger when that person or thing suddenly appeared at the door­way
and pointed a gun at him. Although the story
of the accused is
improbable, I shall assume in his favour that it is true.. Now the
question is whether objectively speaking the
accused reasonably
thought that his life was in danger. It is trite law that the test
whether the life of the accused was in danger
is objective (see South
African Crimi­nal Law and Procedure, Vol. I by Burchell and Hunt
p. 278-279). However, in applying
the objective test our courts have
been warned to be careful to avoid the role of armchair critics wise
after the event, by putting
themselves in the position of the accused
at the time of the attack.

Applying
the test stated above there can be no doubt that if it is assumed to
be true that a person suddenly appeared at the door
and pointed a gun
at him, the accused was entitled to shoot that person there and then
in self-defence. The accused did not shoot
that person there and then
but averted that imminent danger to his life by pushing the door and
forcing that person out of the
room. From there the person is alleged
to have proceeded to the side of the room and the accused saw him
quickly passing near the
window. He shot at him. The crux of the
matter is whether at that stage it can objectively or reasonably be
said that that person
was posing any imminent danger to the accused.
The answer must obviously be in the negative. At that stage that
person was not
pointing any firearm at the accused. In his own words
the accused says that that person was dashing past the window and did
not
aim a gun at him. The accused's life was not in any imminent
danger at that stage. His beliefs and assessment of the

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position
cannot be shared by a reasonable man. He therefore acted unlawfully.

The
accused was safe in a dark room and could easily hide himself while
having a good view of all the windows and the door through
which that
person had to appear and shoot at him. I am of the opinion that there
was practically no imminent danger to the accused
when he shot at the
deceased when he saw him dash past the window.

The third
stage is when the accused came out of the room. He saw a person lying
on the ground at the exact spot where he had just
shot a person. He
again unreasonably thought that that person was waylaying him and
started shooting at him.

Although
I have come to the conclusion that the accused unreasonably thought
that his life was in danger, I must now deal with the
crucial
question of whether the accused had mens rea for murder. The tost
whether the accused had the requisite intention is subjective.
If the
accused genuinely believed that his life was in danger when he shot
the deceased through the window and when he found him
lying on the
ground near the window, he may escape liability for murder on the
ground that he did not intend his conduct to be
unlawful. In deciding
this point the Court must take into its consideration the fact that
earlier that evening the deceased had
fought with the accused and
that the latter genuinely believed that the deceased intended to kill
him. He told the Court that when
he closed the door and forced that
person out of the room it crossed his mind that it could be deceased.
He was not yet at peace
with the deceased because they had not yet
been confronted with him by their senior officers.

I come to
the conclusion that the accused did not have the requisite intention
for murder; however the killing of the deceased was
unlawful..

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Although
the accused and his colleagues had taken some intoxicating drinks
earlier that day there is nothing to show that at the
time of the
killing the accused was still heavily under the influence of liquor.
One observed of the Crown witnesses observed that
the accused was
slightly drunk when he arrived at the camp. That means that he was
not so drunk that he did not know what he was
doing or that what he
was doing was wrong (see section 2 of Criminal. Liability of
Intoxicated Persons Proclamation No, 60 of 1938).
The accused never
said that he did not know that what he was doing was wrong or that he
did not know what he was doing. He related
the events leading to
the-shooting of the deceased in such clarity and detail that one is
left in no doubt about the. state of
his sobriety.

The next
question is whether a verdict of guilty of culpable homicide may be
competent according to the facts of this case. It is
trite law that
in cases of culpable homicide negligence is sufficient mens rea. (See
R. v. Mkize, 1951 (3) S.A. 28 (A.D.). The
accused's belief that the
person passing near the window posed an imminent danger to his life
was bona fide but was not at all
reasonable and has therefore been
negligent. That person was dashing past the window and was not
pointing any gun at the accused.
A reasonable man would have thought
that that person was running away and would not have shot him.

In the
result I come to the conclusion that negligence has been proved. The
accused is found guilty of culpable homicide. .

My
assessor agrees.

J. L.
KHEOLA

JUDGE.

8th June,
1987.

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Sentence:-

Three (3)
years' imprisonment of which two (2) years are suspended for three
(3) years on condition that during the period of suspension
the
accused shall not be convicted of any offence involving violence to
another person for which he is sentenced to a period of
imprisonment
exceecding six (6) months without the option of a fine.

J.L.
KHEOLA

JUDGE.

9th June,
1987.

For Crown
- Mr. Lenono

For
Defence - Mr. Pheko.