CRI/T/2/85
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
v
TS'ELISO KALI
JUDGMENT
Delivered by the Honourable Sir Peter Allen, on the 7th day of April, 1987.
The Accused is indicted on a charge of murdering Sekete Makae, a 20 years old student, at Thabana-Morena on 10 June, 1984.
At that time the accused was a Private in the former Lesotho Paramilitary Force stationed at Mafeteng. On 10 June at 5.30 p.m. W.O. Moroeng (who is now a 2/Lt. in the R.L.D.F.) detailed two Privates for guard duty at the home of Mr. Nthebe, who was then a Member of Parliament, at Thabana-Morena. The two Privates were the Accused and Private Likhapha Molatela (P.W.2 - now a Private in the R.L.D.F.). W.O. Moroeng (P.W.1) checked that each man had an AK 47 automatic rifle and four magazines each containing 30 rounds of ammunition (12 rounds each). They were sent to Thabana-Morena in a Land Rover and arrived there at about 6.30 p.m.
At around 7.00 p.m. they were joined at Nthebe's
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home by Tpr. Ntoeba Pomela (P.W.7) of the L.M.P. The Accused had decided to check the area and was already walking around the village when Pomela reported on duty. The Accused was wearing a camouflaged military uniform with a cap and a grey coloured blanket on top of his uniform. Several Prosecution witnesses stated that he was wearing two blankets, but the Accused denied that.
In the village that evening there were a number of people attending a beer-drinking at the house of one Meisi. Among those present were four of the Prosecution witnesses, Francis Moletsane (P.W.3) a miner, Ben Monyane (P.W.4)a bricklayer, Shai Mphana (P.W.5) a miner, 'M'abolaoane Nyareli (P.W.6) a married domestic servant. Also present was a young woman called Matseliso who was not called as a witness.
What exactly happened at Meisi's that evening is not entirely clear. It has to be remembered that it was nearly three years ago and that the witnesses were drinking at the time and some or all of them may have been drunk.
According to Moletsane (P.W.3) he went outside, Meisi's to urinate at some time between 7 and 8 p.m. He met the girl Matseliso who was about to enter the house. They exchanged greetings and she went inside. When Moletsane was ready to go back inside, he met the Accused whom he
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had not seen before. Moletsane said that Accused told him he was silly and that he would spank- him. There seemed to be no reason for this statement and Moletsane asked the Accused why he said it but the Accused merely repeated it. He then pushed Moletsane by poking him in the neck with the muzzle of his gun. Moletsane re-entered Meisi's leaving the Accused outside. The whole incident seems to have been pointless and meaningless.
Ben Monyane (P.W.4) told a different version. He said he was drinking with Moletsane and others that evening and that he saw through the open door that the accused (whom he had seen before and recognised) was apparently quarrelling with Moletsane, though he could not hear what they were saying. Moletsane came in and told them about being poked with a gun by the Accused and then the Accused entered and ordered them all to go out-side. There were about 10 of them and they went out and stood in front of the Accused. Monyane said that the accused then took off his two blankets and asked those present if the people of that village were silly. Nobody replied and the Accused allowed them to go back into Meisi's. The Accused picked up his blankets and followed them inside. Once again a pointless and meaningless incident.
Shortly after this, the deceased boy Sekete arrived and spoke to his uncle, Shai Mphana (P.W.5), who was one of their drinking companions. The boy told his uncle that
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he was wanted at home by Shai's mother. Sekete waited while Shai finished his beer and then they left. Shai went first with his girl friend Matseliso followed by deceased and Monyane. Moletsane remained behind.
Shai Mphana (P.W.5) told yet another version. He said that they were drinking at Meisi's when the Accused armed soldier, whom he had seen before, arrived and entered the house and sat down. The Accused then stood up and said, "Men, you go out. 1 see as if you boys at Majakaneng are silly." They went outside following the Accused who made them stand in front of him. The Accused took off his blankets and put them down. Shai then told Monyane and Moletsane that they should go back inside, which they all three did, leaving others outside. They were not called back by the Accused and merely continued with their drinking. Shai said that the Accused did not come back inside, which contradicts Monyane's version. However, the incident seems to be equally pointless and meaningless.
Shai said that his nephew Sekete then came to fetch him and he went outside with Matseliso followed by Sekete and Monyane, who, he said, followed about 24 paces behind them.
The fourth eyewitness, the woman 'Mabolaoane (P.W.6) told another version. She said that the girl
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Matseliso was the lover of both Shai and the Accused. 'Mabolaoane said she was drinking there and she saw Moletsane go outside several times but she knew nothing of the incident with him and the Accused. She said that the Accused, whom she knew, came in only once and he sat down next to her and he did not order anyone to go outside. He wore two blankets and carried a gun. The Accused asked her where Matseliso,his lover, was and she pointed to her. He then asked 'Mabolaoane where Matseliso's husband was. She said the Accused was referring to Shai although they both knew he was not married to Matseliso. The Accused then said, "Yes, I see Shai. Today I'm going to whip him until he urinates."
'Mabolaoane replied, "When you come to Majakaneng are you coming to whip men?" to which he said nothing. Then Shai and Matseliso went out holding hands and the Accused followed them. She said that other people left but she did not see the deceased whom she knew. That seems rather strange since the other witnesses said he was with Shai. However, like the others, her vision and memory may have been affected by the passage of time and the amount she drank.
When she went outside, she saw the Accused standing in the fore-court while Shai and Matseliso were standing talking some 15 paces away from him. She then went home.
After leaving Meisi's, the witness Monyane (P.W.4)
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and the deceased followed behind Shai and Matseliso. There was moonlight and Monyane said he heard footsteps and saw the Accused coming behind them. The Accused asked him if he was Shai and he said he was not and that Shai was in front of them. The Accused went past them and reached Shai but Monyane could not hear what was said. He saw the Accused move back from Shai and take his gun from his shoulder where it was slung. The Accused then fired once into the air. Monyane said he and Shai and the deceased ran away and while they were doing so he heard several more shots. Monyane thought that the Accused jumped over a fence and cut across to arrive in front of them oh the road, for that is where he next saw the Accused who then fired some more shots without saying anything. Monyane threw himself down into a ditch by the road side keeping his head down. After further shooting he heard the Accused go away. Monyane and Shai then stood up and found the deceased lying with his head in the ditch and blood on the ground.. They lifted him up from the ditch and he appeared to be dead. Moletsane (P.W.3) joined them at that point.
Shai Mphana (P.W.5) described how he heard footsteps behind him and he heard a voice asking for Shai. He heard Monyane reply that Shai was ahead and the Accused then approached and asked him if he was Shai, which he admitted. The accused then unslung his gun and Shai moved backwards and the Accused fired into the air. Shai was frightened
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and ran away with the others. He heard several shots. The rest of his story was the same as Monyane's. Neither of them said where Matseliso was or what she did and the Prosecution did not call her to testify.
Both Monyane and Shai said they went to Nthebe's to report the shooting of the deceased. They both denied being armed with any sticks or knobkerries or other weapons and they said that the deceased was not carrying a knife. They also denied chasing or attacking the Accused.
Private Molatela (P.W.2) and Tpr. Pamela (P.W.7) described how they heard shooting just after 7 p.m. and then the Accused arrived and reported he was the one who fired the shots because people had attacked him. He appeared to be frightened and they told him to go inside Nthebe's house and stay there so that he would not be seen by the angry villagers who were then approaching the house to. report the incident. Pomela said that there were more than 20 people and he heard them say; "Let's walk to Nthebe's home so that soldiers can kill us like they killed Sekete." But he added that the crowd was not hostile. Pomela also said that the Accused told him that the deceased was carrying a knobkerrie but that he did not mention a knife.
The matter was reported to Mafeteng and Captain Macheli and W.O. Moroeng (P.W.1) took a vehicle and arrived at the scene at about 8.30 p.m. that night. W.O. Moroeng
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said he found the Accused and Private Molatela at Nthebe's home and examined their firearms. Molatela's had not been fired but the Accused's gun had been fired and there were six rounds of ammunition missing. W.O. Moroeng seized the Accused's gun (exhibit 1) and asked why the Accused had fired it. The Accused replied that the villagers had attacked him and he ran away after they had been fighting over a certain woman. He admitted firing six rounds.
W.O.Moroeng handed the gun over to Detective Tpr. Makoetje (P.W.8)who followed Moroeng and the Accused in a separate vehicle to Thabana-Morena. Next day Makoetje returned to the scene and picked up nine empty cartridge cases and one live round. They were in different places on and off the road and some were about 25 paces from the rest nearer to the house. The gun and cartridge cases were sent to the ballistics expert in Pretoria from where they were returned with a report written by Detective W.O. Du Toit dated 17 October 1984 (exhibit B). The report showed that an examination of the markings on all nine empty cartridge cases showed that they had been fired from the same gun (exhibit 1).
The body of the deceased was taken to Mafeteng by W.O. Moroeng and Tpr. Pomela.(P.W.7) where a post mortem examination was conducted by Dr. Tlale, whose report (exhibit A) was admitted and put in by consent. This showed a small punctured wound in the chest with a larger exit
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wound in the back just below the ribs. The cause of death was from loss of blood. The body was identified to the doctor by Mokhoathatsane Makae, the father of the deceased whose evidence of identification was admitted by consent.
The Accused, now aged 25 years, elected to testify on oath and called no witnesses. He described how he and Pte. Molatela (P.W.2) went on duty that evening at Nthebe's home. He told Molatela that he was going to walk round the village and check the area. He said that he did this because there were rumours that Nthebe could be attacked by members of, the then Lesotho Liberation Army (LLA) who were often to be found in local bars. He heard a noise in the village as if people were fighting and went there in that direction to Meisi's home. He said that Matseliso was his lover and he knew her friend 'Mabolaoane (P.W.6). At Meisi's he found three unknown men standing outside and asked them about the noise. They did not reply so he went inside. He saw Matseliso inside sitting with a man whom he identified in Court as Shai (P.W.5). He asked 'Mabolaoane what was the relationship between Matseliso and Shai because he said he did not want to continue his own relationship with Matseliso if she had found someone else to go with. 'Mabolaoane told the Accused that Matseliso and Shai were lovers. This upset the Accused and he went outside without saying anymore to 'Mabolaoane and without speaking to Matseliso. The Accused several times denied telling 'Mabolaoane that he would beat Shai
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until he urinated, adding that she was lying about that.
He said he only entered the house once and that 'Mabolaoane was the only person there to whom he spoke. He denied ordering anyone to leave the house. He said he was dressed in a military cap and camouflaged uniform with one donkey-coloured blanket over it. He carried an AK 47 rifle with four magazines containing 120 rounds of ammunition.
He denied Moletsane's (P.W.3) testimony that the Accused had called him silly and had then pushed him with his gun, and said Moletsane was lying too.
The Accused said he remained standing outside Meisi's for about five minutes after he went out., He then saw Shai come out pulling
Matseliso by the wrist. She seemed to be reluctant to leave but she said nothing. The Accused went up to Shai and said, "Don't drag her away. You can see she's drunk." Shai replied, "You can't tell , me that. Why do you look down upon me so much?"
The Accused explained in Court that he was not then trying to take her away from Shai but he only wanted to prevent Shai from hurting her by dragging her away. Shai then bent down and picked up a stone and the Accused then unslung his gun and poked Shai in the chest with the butt end of the gun. He did not remove his blanket. Then
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a group of about fifteen people came towards him from the house and he retreated. One threw a stone at him which missed him and he ran towards the road; He stopped near some trees which were dense and he looked for a way of escape. The people were running towards him and shouting and he saw that Shai had by then acquired a knobkerrie and that others were throwing stones at him. So he fired a burst of three rounds automatic into the air (the gun was switched to automatic fire) but the people kept advancing. He found a way through the trees and jumped over a fence into the road and ran in the direction of Nthebe's house. They followed him still throwing stones. He saw one in front who came close to him carrying an unclasped knife which he held up as if about to stab the Accused.
Fearing that he was about to be stabbed, the Accused turned round as he ran and fired another burst of three rounds. The man jumped upwards and then fell down. The Accused stated that he had not intended to hit him but,' even if he had hit him, it was only to disable him by shooting him in the leg.
The other people were now closer to the Accused so he did not stop but he kept running. He heard one of them say, "Oh, he has shot him. Let's go for him. He would rather kill us all."
They stopped pursuing the Accused when they could
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no longer see him. When he reached the post office he met Pte. Molatela (P.W.2) and a policeman (P.W.7). The Accused was frightened and he reported that he had shot someone and they should hide there. They stayed there for about three minutes until the people had passed by on their way to Nthebe's house where they raised an alarm.
The Accused and his colleagues then went to Nthebe's where many people had gathered. The policeman (Pomela) told the Accused to go inside Nthebe's house and stay there so as not to provoke the people outside. The accused said that by then he was very frightened and confused and he remained in the house out of sight until Captain Macheli and W.O. Moroeng arrived and questioned him. The Accused said that he told them about the people attacking him with stones, knobkerrie and nknife. The officers took his gun and he was then escorted to Mafeteng where he was interrogated first by the officer-in-charge of police and then by Detective Trooper Makoetje
(P.W.8). The Accused insisted that he only fired six rounds and that he knew nothing about the other three fired rounds and the one live round that Makoetje had picked up at the scene.
However, the report of the ballistics expert (exhibit B) clearly states that all nine rounds were fired by the same gun. I think it likely that the Accused fired another burst or possibly fired more rounds in the two bursts than he stated. It does not matter a great deal
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since it is clear that the bullets were all fired by the same gun and the Accused admitted firing at and hitting the one person (the deceased) who was shot that night.
The implication, from the rather muddled testimony of the Prosecution witnesses, was that the Accused intended to shoot Shai and shot the deceased by mistake or possibly by shooting negligently at random.
I find this theory difficult to believe because the Accused had several opportunities to shoot Shai that evening, at Meisi's when he saw him and stood near him. There was no need for him to go running about in the dark outside for that purpose.
The circumstances of the incident seem to me to fit more closely to the Accused's version that a group of people became annoyed with him and chased and attacked him. I do not believe that the Accused was as innocently involved with those people as he claimed. I have no doubt that he acted provocatively at Meisi's. But the Prosecution witnesses who were there were not only rather confused, mistaken and untruthful as a result of their drinking and the passage of nearly three years since the incident. They were also hiding something from the Court and, as witnesses, I found them unimpressive. As I indicated earlier, their version of events was in fact senseless and meaningless. But that is not very surprising since they were telling
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the, Court only a part of what actually happened.
I am inclined to believe that both the Accused and the witnesses acted provocatively towards each other and that threats were made by both sides. I believe that a group of people did chase the Accused and that they threw stones at him. I am also inclined to believe that the deceased attacked the Accused with a knife or that the Accused believed that he was being so attacked and so he turned and fired in the direction of the deceased. In other words he was acting in self-defence.
I do not consider that there is sufficient evidence that the Accused intended to kill the deceased. The question is whether the Accused acted properly in self-defence or whether he went too far and fired his gun unnecessarily.
The general principles which guide the Court in considering whether or not the Accused acted in self-' defence were set out concisely in R v ALTWOOD 1946 AD 331. They are:
That the accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury;
That the means of self-defence which he used were not excessive in relation to the danger;
That the means he used were the only, or least dangerous, means whereby he could have avoided the danger.. "
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But it should be remembered that the decision as to whether the means used by the Accused were excessive or that he used the least dangerous weapon available must depend very much upon the circumstances. Anyone who has been attacked or in a position of danger knows well that his feelings and thought processes were very different from one who merely sits in safety in an office or at home discussing the matter afterwards. There is the element of fear and darkness and excitement which affect his actions and reactions.
In the UNION GOVERNMENT v BUUR 1914 AD 273 at 286 it was said that:
" Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros and cons. Allowance must be made for the circumstances of their position."
In the present instance I accept that the Accused , was being chased by a hostile, stone-throwing mob and that he was attacked by the deceased with a knife and that he believed that he was about to be stabbed. The only weapon he had and the only means of self-defence available to him was his gun. In those circumstances, I do not think that he went too far in firing at the deceased. I do not find any evidence that the Accused intended to kill the deceased but only that he desired to prevent him from stabbing
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the Accused, As such he believed that his life was in danger and he reacted reasonably in the circumstances, and that consequently he was acting in self-defence. The Assessors agree.
Accordingly the Accused is acquitted of the offence of murder and his bail is discharged and he is to be released immediately.
P.A.P.J. ALLEN
JUDGE
7.4.87.
ORDER
The gun (exh.1) and the ammunition (Exhibits 2 and 3) are to be handed over to the Police for transmission to the Defence Force.
For Defence : Mr. Mphutlane
For Crown : Miss Moruthane
Accused present. Judgment delivered.
P.A.P.J.
ALLEN
