Mbhele v Director of Public Prosecutions (C OF A (CRI) N0. 18/2009)

Media Neutral Citation: 
[2010] LSCA 14
Judgment Date: 
23 April, 2010



C OF A (CRI) N0. 18/2009


In the matter between:





Smalberger, JA

Howie, JA

Farlam, JA

Heard: 9th April 2010

Delivered: 23rd April 2010


Conviction of murder – appellant fatally stabbing deceased – provocation and intoxication – whether sufficient to reduce conviction to culpable homicide – sentence.


Smalberger, JA

  1. The appellant was convicted by Guni J in the High Court of murder. The charge arose out of events which occurred on 30 April 2004 at Khotsisi in the district of Berea, during the course of which the appellant fatally stabbed one Tšepo Molise (“the deceased”). The learned trial judge held that extenuating circumstances were present and sentenced the appellant to 20 years imprisonment. The present appeal is directed against both the appellant’s conviction and the sentence imposed upon him.

  1. The evidence for the Crown reveals that on the evening in question the appellant, the deceased and others were present at a local drinking place (shop) where liquor was being consumed. By all accounts the deceased was in an obstreperous and aggressive mood. He was disrespectful towards an elderly customer and insulted the appellant. The latter took exception to the deceased’s conduct. The deceased then challenged the appellant to a fight and went outside. The appellant followed him shortly afterwards. There was no evidence or suggestion that the appellant subsequently returned to the shop.

  1. The Crown’s evidence does not reveal what initially occurred outside between the appellant and the deceased. Presumably some form of confrontation took place. The appellant claimed in evidence that the deceased struck him with a fist, stabbed him above the eye and chased him with a knife. This caused the appellant to return to the shop in search of refuge there. He later again left the shop. He was warned that the deceased was behind him. One Polo Monyatsi gave him a knife which he put in his back pocket. The deceased caught up with him and stabbed him twice on his chest. The appellant was given a second knife by one Thora Nku to enable him to defend himself. According to the appellant he was “overcome by anger” and proceeded to chase the deceased. In the course of the chase he stabbed him “more than once”. The deceased fell down. The appellant denied stabbing the deceased after he had fallen.

  1. The version of events testified to by the appellant was never canvassed with the Crown witnesses under cross-examination. It was not suggested that the appellant returned to the shop sometime after following the deceased outside. Nor was it put to any Crown witness that the appellant had been stabbed by the deceased. No Crown witness was questioned with regard to any injury, or sign of injury, on the appellant. The police officer who examined the deceased’s body and later that same night arrested the appellant, meticulously recorded the deceased’s injuries but made no mention of any injury to the appellant. No knife was ever seen or found in the deceased’s possession. The nearest the evidence came to suggesting that the deceased may have had a knife was that he was seen to put his hand into his back pocket before leaving the shop.

  1. The Crown witness Mojela Hlajoane (“Hlajoane”), a warrant officer in the Lesotho Defence Force, testified that on the night in question at about 8.30 p.m the deceased came running to his home. The deceased was being chased by the appellant. Hlajoane observed blood on the deceased’s hand. The appellant was armed with a knife. The deceased tried to hide behind Hlajoane. The latter sought to restrain the appellant but to no avail. The appellant seemed bent on further attacking the deceased. The deceased then fled, followed by the appellant.

  1. The Crown witness Thora Nku (“Nku”) testified to what occurred thereafter. He had earlier provided the appellant with a knife at the latter’s request. He saw the deceased being chased by the appellant. They ran through the backyard of the home of the local chief and headed towards a nearby tarred road. At the tarred road the appellant caught up with the deceased and appeared to stab him on the back. The deceased fell down and the appellant proceeded to make a further three stabbing movements on his back while he lay on the ground. The appellant left the deceased where he had fallen. The appellant walked past Nku and as he did so he dropped the knife he had used on the ground. It had been wiped clean. Nku later handed the knife to the police.

  1. It appears from the evidence that the deceased died at the scene of the attack. The post-mortem report on the body of the deceased which was admitted in evidence showed that the deceased died from multiple stab wounds. The report recorded a total of five stab wounds, of which four appear to have been on or in the region of the deceased’s back. The post-mortem findings support Nku’s evidence with regard to the stabbing of the deceased.

  1. The trial court accepted the evidence of the Crown witnesses and rejected that of the appellant where it conflicted with theirs. As pointed out above, the appellant’s evidence is open to criticism and clearly lacked credibility. On appeal no serious challenge was directed at the trial court’s findings in the above regard. The thrust of the argument on behalf of the appellant was that the combined effect of his intoxication and the provocation to which he was subjected was sufficient to negative any intention to kill on his part, and that he should have been convicted of no more than culpable homicide. Counsel referred us to a number of cases where the effect of alcohol and provocation had had that result.

  1. One can not lay down a general rule that the combined effect of intoxication and provocation necessarily negates intention. In many cases they may have that effect, depending upon the extent of the intoxication and the nature of the provocation. Each case must obviously be decided with regard to its own peculiar facts.

  1. In the present matter it can be accepted that the deceased’s aggressive, insulting and challenging behaviour was likely to have provoked the appellant, and that liquor also played a role in regard to the subsequent events. The appellant was clearly angered by the deceased’s conduct. But the provocation was not of such a nature as to result in a complete loss of control. In the chase that ensued there was opportunity for the appellant to reflect on what he was about and time for his passion to cool, yet he doggedly persisted in his pursuit of the deceased. The provisions of sections 3 and 4 of the Criminal Law (Homicide Amendment) Proclamation 1959 referred to by counsel for the appellant are accordingly not of application in the present matter.

  1. There is no evidence to suggest that the appellant was more than mildly intoxicated. He did not claim to have had any liquor to drink before he went to the shop, had not been there for very long, and could not have imbibed much liquor before trouble broke out. The fact that he was able to chase after the deceased for some distance and catch up to him suggests that he was not seriously affected by alcohol. In my view the evidence establishes that the appellant intended to punish and injure the deceased. As the deceased was a friend it seems unlikely that he actually intended to kill him, but having regard to the number of injuries the appellant inflicted upon the deceased, and their location, he must have foreseen, and by necessary inference did foresee, that such injuries could cause the deceased’s death but proceeded to assault him regardless of the consequences. In the circumstances the Crown in my view succeeded in establishing that he had the necessary intent to kill in the form of dolus eventualis. He was accordingly correctly convicted of murder with extenuation.

  1. It is trite law that sentencing is pre-eminently a matter for the trial court, and that an appeal court will not lightly interfere with the exercise of the trial court’s discretion in that regard. However, a sentence of 20 years imprisonment appears to be extremely harsh having regard to the circumstances of the case. The appellant is a first offender. It was the deceased’s conduct that set in motion the train of events that led to his death. The killing was not pre-meditated; there was no actual intent to kill. Provocation and liquor played a role in the appellant’s conduct. The appellant has shown remorse for what he did. He has initiated reconciliation with the deceased’s family. Notwithstanding these and other possible mitigating factors, murder remains a very serious crime which calls for severe punishment in suitable cases. In my view an appropriate sentence in the present case would be one of 12 years imprisonment. There is accordingly a striking disparity between such sentence and that imposed by the trial court. In the circumstances interference with the sentence is justified and the appeal succeeds to that extent.

  1. In the result the following order is made:

  1. The appeal against the conviction is dismissed.

  2. The appeal against the sentence is upheld, and the sentence is altered to one of 12 years imprisonment.

J. W. Smalberger

Justice of Appeal

I agree:

C. T. Howie

Justice of Appeal

I agree:

I.G. Farlam

Justice of Appeal

For Appellant : Adv. T. N. Habasisa

For Respondent : Adv. L. Mokorosi