C of A (CRI) No.3 of 1999
IN THE LESOTHO COURT OF APPEAL
In the matter between:
HELD AT MASERU
JULIUS PONE APPELLANT
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
Coram: J. H. Steyn P
L.v. den Heever J A
G. Friedman J A
L. van den Heever J. A
The appellant, as accused no.l, was charged along with Tsele Mabusane as accused no.2, before Guni, J with murder. The Crown alleged that one or other
or both of them unlawfully and intentionally killed LERATA MAPOTA on or about the 18th day of November 1993 at or near Ha Molapo in the district of Butha Buthe. I continue to refer them as accused in what follows, for the sake of convenience.
There is no explanation apparent from the record for the inordinate delay in the prosecution of the matter. Accused no. 1 had reported to the police and been arrested within days of the episode out of which the charge arose. The indictment is dated more than three years after that: 26 March 1997. The trial commenced only on 16 February 1999. Both accused pleaded not guilty. On 23 November accused no. 2 was acquitted. Accused no. 1 was found "guilty of murder with direct intent." The Judge a quo adjudged him "to be a very cruel person who has totally lost his human nature" who had "made a deliberate choice of a particular part of .......(the) body (of the deceased) to stick in the knife with a blade which is as long as his arm." This, she ruled, made the intention of the accused to kill the deceased, to "finish the deceased," abundantly clear. She apparently accepted in extenuation that The appellant had been very young. According to his evidence he was then still at school, in form 4 at St. Paul's High School, and eighteen years old. He however said he was born in 1974 but was unsure as to the month, he thought it was somewhere in September. He was sentenced to twenty years imprisonment.
The present appeal is brought against both conviction and sentence.
It is the responsibility of the Crown to place a proper record of the trial before this Court for purposes of appeal. The record in this matter is highly unsatisfactory. The typist who reduced the recorded evidence to print, is not sufficiently proficient in English to do so intelligibly. As a random example:
"The fight which you told the magistrate in shoot at the shop .... the fight which you told the magistrate and shoot at the shop .... a fight in suit at the place where you have taken shelter from the rain."
And I do not know what one is supposed to make of passages like -"D.C.I: Now we now know, that you have said speaking for yourself, your aim was to how......that is why you had to press yourself by the walls in order to torch the attack that was brought by the accused persons is that right? P.W.I: Yes."
Perhaps the English of the interpreter was also deficient.
I voice this complaint because a shoddy record makes the work of the members of this Court in preparing to hear such matter, unnecessarily arduous. Linguistic problems are not the only fault. Argument on sentence is bound into the record as though it is a follow-on of the evidence, before judgment on conviction. And no one thought to incorporate in the record those portions of the preparatory examination on which cross-examination was based and of which the trial judge did take cognisance, although she had difficulty with the handwriting of the magistrate in the original version before her.
There were conflicting versions of the events which resulted in the death of the deceased. The prosecutor outlined his case against the accused as follows:
On 18 November 1993 the deceased and four companions left Boinyatso village. He and three others namely, Khau Khau, Motlalepula Nahano and Motsoantsi Mokethi, accompanied Teboho 'Matli who wanted to fetch his tape recorder which was at Ha Molapo. The five met the two accused. They spoke to
one another. The two groups parted. Later when the five headed home, they again met the accused. After they again parted company, the five went to a nearby shop for shelter as it was raining. While they were in the shop the accused arrived and asked "the deceased and his company" to go out and talk with them. As the five went out accused no. 1 produced a knife and stabbed the deceased. The second accused was holding an axe. The two accused ran away. A message was sent to the chief. The police were called the following day. They removed the deceased to the mortuary. Both accused "surrendered themselves to the police" in connection with the incident and were arrested.
Motsoantsi Mokethi was the first witness called - hereinafter PW1. He testified in accordance with the prosecutor's summary, up to the point where the two accused entered the shop. On both occasions, when going to and returning from Ha Molapo, the encounter of his group with the accused had been amicable. But while he and his friends were sitting in the shop the two accused came in. No.2 produced an axe and no. 1 a knife. Nothing was said or done before they did so.
Then no.2 raised the axe "and......and we managed to move out." The prosecutor had difficulty in dragging the evidence out of this witness, and what he said was confused and often self contradictory: his group moved out not when no.2 raised his axe, but after no. 1 had grabbed and stabbed the deceased. The latter had been stabbed inside the shop and then ran out, and had fallen. He had been carrying a stick. Under cross-examination PW1 first conceded that there may have been a fight when the football team of Ha Molapo had gone to play that of Boinyatso, and then denied it flatly: he would have known of it. He admitted that he had spoken at the preparatory examination of a fight which had ensued in the place where they had sought shelter; and had said that he himself had fled out of the shop and only-discovered that the deceased had been injured when he returned to where the deceased had fallen. Then he again denies that he told the magistrate that "the
fight ensued." He had told the magistrate that the deceased remained inside the shop and was dead; had told the magistrate
"while we were outside they left the shop running and an axe dropped. The deceased also came rushing after them but he immediately fell down and there was blood coming out from his mouth. When we got to them we saw that he had been stabbed with a knife."
It is unnecessary to belabour the point or go into further detail regarding his evidence.
P.W.2 was working in the shop on the day in question. The deceased and his friends came in to take shelter from the rain. About half an hour later the accused came in. No.2 said to the deceased and his friends "Guys let's come and talk." No.l went to where the five were "preparing themselves to move out to the call" of no.2: they stood up "and try to go out." No.l approached them. No.2 stood with a raised axe near where she was behind the counter, facing towards the deceased and his friends. She herself ducked under the counter, terrified, and saw and heard nothing further. When she emerged she was alone in the shop apart from a certain Lechesa, since deceased. He opened the door, saying someone had fallen outside in the yard.
Teboho 'Matli was PW3. He knew the accused because "their village is very close to my village and we meet at the time when playing soccer." On the relevant day he, the deceased and PW1 were on their way to Ha Molapo. At Lekhalong Khau Khau and Motlalepula Nahano joined them. En route they met the two accused, they spoke and parted peacefully. His evidence in chief about their return journey is confused: it looked as though it was about to rain, "we were running when we got to Ado's shop we met them again." They did not talk. By the time they reached Mantahli's shop it was raining heavily so they waited inside. While
sitting there the accused arrived. They "requested us to have conversion (sic) with them, we stood and went next to them so as to talk to each other," which does not accord with the evidence of PW2. He continues:
"We were seated together and at the time they say that we should talk we thought that it was about the soccer match but what surprised me is when (no.l) was holding the deceased with his shirt and produced a knife."
They left, squeezing out through the door where no.2 was holding up an axe. He lists the order of their going: four members of his own group came out first, he himself being the second and PW1 the third of those; then Lechesa followed by the two accused and, last, the deceased. The latter said they should not talk to the accused because no. 1 had stabbed him. He asked them to help him. When they got to him he fell, and expired there. He and his group "were armed with sticks."
Under cross-examination he admitted that he and his friends chased the accused after they had gone out of the shop, and admitted that this was before they knew that the deceased had been injured. He himself left the shop "where I observed that there was a fight" but admits that he had told the magistrate that they went out because they had been invited to talk with the accused, affirms that he remembers telling the magistrate so, and in the very next breath says "I don't recall that."
It was put to him that it was his party who had been aggressive, had "started the violence inside that shop," had assaulted the first accused. He denied that.
"D.C 1 And your assault continued even when the first accused was outside, that is why it became necessary to chase him?
PW3 : We came chasing after him because he was already running away."
He could suggest no reason for the change in the attitude of the accused from amity to aggression; nor suggest any reason why accused no.2 whose eyes were fierce, did not slash at those who passed below his upraised axe where he was standing in the doorway, as he could have done had he wanted. In reply to questions from the Bench, he said that it was still raining when they were invited for a talk outside. Nevertheless they got up, ready to go outside to converse.
"H.L. What crossed your mind about the importance of the talk that you have to brave the rain which had driven you into the shop in the first instance?
PW. 3 In my mind alone I thought since they were people we always challenged one another about sports we were going to discuss matches."
PW4 was another member of the group, namely Khau Khau. His version of the events in the shop, is that when the accused arrived, "they pointed at (PW1) and the deceased......to go out and have a talk."
As they were about to stand up, No. 1 caught hold of the deceased who was still seated next to this witness.
"People then started making a lot of noise, women crying and others going out and we too went out during the fight." (My emphasis)
"(Accused no.2) was near the door......I last saw him holding up the axe........(PW1) was in front of him, then Motlalepula stood up next to him, then there was a group of people forcing their way out......... I then saw him running outside the shop without an axe leaving the axe inside the ship."
e could not tell who, of PW3 and his group, or the accused, went out first; but the
deceased was among those who went last. After the accused had gone out "we ran to chase after them,"but the deceased called them back, "saying we should leave alone those people as that person had already finished him," They turned back and as they came near, he fell, bleeding from a wound in the chest and his mouth and nostrils.
Of their group, the deceased and one other had carried sticks. He did not see them use them.
Although many of the main points in his evidence accord with the broad outline of the Crown case, it is clear that in details it conflicts with what his friends had said.
He had difficulty in explaining why he had said there had been a fight. It was put to him that the preparatory examination recorded him as having deposed:
"Whilst we were still there the accused arrived and told those men whom we had accompanied to come out for a talk. While they were going out accused 2 pulled out an axe and accused 1 passed us by and went at the corner near the deceased then a fight ensured."
His answer was that the magistrate had recorded wrongly.
He admitted that when he left, the deceased and accused no. 1 were still inside the shop, and that he could not deny that the deceased used his stick to assault accused no.1.
He differed from those who said no.2 was standing in the doorway with his axe raised; and from PW3 that Lechesa had gone out. Lechesa and certain Makhokolotso remained behind and could in his opinion have seen the deceased
and accused fight. He also puts many more people as having been inside the shop, than any other Crown witness. It was he who said in reply to a question by the Court, that when the deceased called them to help him, they found him without his stick, which was found some distance from him but outside the shop.
Trooper Ramokotjo, PW5, testified that accused no.l came to the police station on the 22nd of November 1993 in the company of his brother, who reported about the death of a person at Ha Molapo. The witness questioned the accused who gave him an explanation and handed him a knife which was handed in as an exhibit, and is described only as being "about 30cm long." No.2 came the following day. The post mortem report was handed in by consent and the Crown closed its case. The report does not describe the physique of the deceased. We do not know how he compared in size and strength to the accused. The matter was not investigated at all at the trial. We do know that he was an adult of twenty five, as compared to a scholar of eighteen or nineteen. Counsel for accused no.2 applied for the discharge of his client. The application was dismissed and both accused were "to put their defence."
Accused no. 1 told the Court that on the day in question he ran into the shop of Ha 'Mantahli because it was raining outside. He was not aware that the deceased and his friends were there . He himself went towards the counter. He then saw one of them go out quickly, and the deceased, next to him, stood up. As he did.so, he struck the accused with a stick. The accused retreated to the corner. The deceased tried to strike a second time but the blow landed on the counter. By then accused had produced a knife. He stabbed his assailant as he himself ran "to the other side." He was not aware whether his own blow had landed, and had not aimed it at any particular part of the deceased's body. He then managed to flee. When he got outside, the deceased's companions chased him away. He outran
them. When he looked back they were no longer there. He "went to one nurse to ask her to render us assistance, but a message later came that he had passed away." On the following day he went to the police station at Butha Buthe. He had not intended to kill the deceased.
Under cross-examination he denied that he had invited the deceased and "his company" for a talk. He knew of no reason why the deceased would get up and assault him immediately he entered the shop. His evidence was somewhat confused as to the detail of that assault: the deceased rushed at him, "levelled a stick to me" and it was when the deceased tried to come for the second time that he took out the knife. He almost immediately conceded that he had managed to avoid the First blow by the deceased, said that he had drawn his knife because he was literally cornered, and afraid of the deceased.
Crown counsel suggested alternatives he could have adopted: grabbed the stick, or rushed to the door instead of the corner. He said he was confused, frightened, "there was no way that I could get hold of that stick," which in any event it had not occurred to him to try to do. And he could not run to the door where people had crowded. He did not see accused no. 2 carrying an axe. He did not in fact see no.2 inside the shop, only saw those who ran away. When he himself ran away there were others still in the shop. He carried the knife because he had at that stage been a Scout.
The trial judge then questioned the accused. In reply to her , he said that he saw seven people in the shop when he entered it. The only two he identified at that stage were Lechesa, and another person - he did not remember his name - who was drinking. People ran to crowd the door when "the other one stood up." That was Khau, who stood up first, "and the one who was at the extreme end being the
deceased was the one who came to me." He does not drink, was not drunk that day.
"H.L : Did you know those people you found in the shop?
DW1 : I knew one Ralephoi, Motlalepula, Makhokolotso and one Lechesa one Motsoantsi I used to just see him. H.L. : Did you know the deceased?
DW 1 : I knew him facially I never knew his name."
(Of these we know that Lechesa has died, two were Crown witnesses, and one Motlalepula, was one of the deceased's companions whom The Crown did not call. The only unfamiliar name is "Ralephoi".)
He had no personal grudge [the record has it as "crushes"] against anyone in "that group" - presumably referring to the deceased and his companions. He does not know whether anyone bore a grudge against him. He does not know why the Crown witnesses should implicate him falsely. The record continues:
"H.L. : ...........Do your friends the ones who were with you would there be anyone who you would call to show this court that you were in fact the person who was attacked among those people who were present in the shop?
DW 1 : I was in company with Tsele as for these others I found them in the shop.
H.L. : Do you believe that they have any crush against you they wouldn't support what you were saying?
DW 1 : Maybe but I don't know.
DC : My Lord may I indicate that I close accused case.
H.L. : Alright that would be the end of the trial."
Then counsel for the Crown argued his case. There is no indication that counsel for accused no.2 was asked whether he closed his case, the issue does not seem to have arisen at all. Since he himself was acquitted, accused no.2 was not prejudiced but it would have made a significant difference to the trial judge's approach had no.2 been given a choice, decided to testify, and supported the evidence of accused no. 1.
In her judgment dated 23 November 1999, the trial judge in her summary of the facts, mentions facts as being common cause which differ from the evidence recorded, or do not appear in the record before us at all. I mention two:
"The deceased in a group of four people, left their village to pay a visit to a friend or relative at the village of the accused persons........ On arrival at the house of the person they have come to visit, they found he was not at home."
This differs entirely from Grown counsel's initial outline of his case. PW1 does not mention the purpose of their trip, and is recorded as saying "when we got there the owner of the place was there and then we came back." P.W.3 says "we were going to fetch a radio," says nothing about anyone not being home. The evidence of P.W.4 on this issue is the same as that of P.W.3.
According to the judgment, on their return journey, "Immediately when the storm had stopped, the two accused entered into the shop where the deceased and his companions were " [had been?] "sheltering from the rain" (emphasis added).
Her finding is contradictory, because in the very next paragraph she says
"There were many people in the shop. When the deceased and his
companions entered that shop, they found other people already-having taken-shelter from the rain. More people came after the deceased and his companions had taken shelter. It was not surprising that the accused also appeared, presumable to take shelter."
These discrepancies are relevant only in casting doubt on the court's recollection of what the evidence in the trial, which had dragged on over more than ten months, had been. From that point on, the flaws in the judgment are more serious. In the first place, there is no analysis of the evidence tendered by the Crown, or appreciation of the fact that there were many self contradictions and/or discrepancies between the various versions. The judgment says that "according to all the Crown witnesses, immediately the two accused appeared on the doorway, they called on to the deceased and PW1 to come out to talk." PW1 said nothing of the sort, PW2 and 3 spoke of an invitation to the group "to talk," not to go outside to do so. PW4 did testify that the accused invited the deceased and PW1 "to go out and have a talk;" which seems to be inherently improbable since according to PW3 "it was raining heavily" and the accused says that is why he and no.2 sought shelter.
"According to all the Crown witnesses........the deceased and PW1 obliged by rising and proceeding towards the door. But suddenly Al rushed towards the deceased and grabbed hold of him by his and simultaneously produced a knife."
I do not have to repeat that the evidence of PW 1 was quite unsatisfactory, that the evidence of PW2 does not fit in with this finding, that not one of the Crown witnesses talks of the accused rushing towards the deceased.
She says later "Al went straight to the deceased, grabbed hold of him by his lapels, produced a knife and stabbed him. This was witnessed by PW1 and PW2." There is no justification for such a statement in the record before us.
The most serious flaw in the judgment, is that the only reason she seems to advance for regarding the accused as a liar, is that he "completely abandoned" his "first defence," of prior animosity resulting from football matches. He
"never testified as to any animosity or personal grudge borne by anyone, in particular this deceased against him. The new defence appeared to be private defence. The Al was attacked by the deceased while others in the shop went to crowd at the door, effectively blocking Al's way out if running away would cross his mind. This was Al's new stance under cross-examination. But strangely enough no such suggestion was ever made to the Crown witnesses who testified to the crowding at the doorway "
"For the accused to succeed in his private defence, there are a few essentials which must be established. First there must be an unlawful and imminent attack, directed against this accused."
She refers to three cases : R v Attwood, 1946 AD 331; R v Ndara, 1955(4) SA 182 (A) at 184; and S v Goliath, 1972(3) SA 10 (A)5 and continues:
"There is no evidence, that even although he was in possession of a suck, (the deceased) ever raised it or threatened to use it against the accused."
This misplaces the onus. That burdened the Crown, to prove that the conduct of the accused had been unlawful. The suggestion of possible prior animosity was not a defence, merely a probing of some possible motive that the deceased may have
had to assault the accused, which was what his evidence was all about. And scattered throughout the record there are indeed references by Crown witnesses to a fight inside the shop. She herself starts off by classifying the case as a strange one, because violence erupted out of the blue. On the Crown evidence - or some of it -it was accused no.2 who had been the man blatantly in bellicose mood, for no reason anyone on the Crown version could advance. That there was "no evidence that the deceased ever raised his stick against the accused," brushes aside the testimony of the appellant himself as though he had not participated in the trial, the more so where the trial judge gives no reasons for rejecting his story except that she accepted the version of the Crown regardless of the many flaws in it. Indeed, the learned judge failed to analyse and evaluate properly the evidence of the appellant before rejecting it, which is a clear misdirection. See S v Guess 1970(4) SA 715 (A) at 718D-719A.
The cases she relied on do not support the approach of the trial court. The Attwood case does not deal with unlawfulness, but the question when the logical inference to be drawn from the conduct of the accused that he intended to kill, is undermined by his having been provoked. It stresses that one must determine the facts first and only thereafter go on to apply legal principles to those facts; which did not occur in the present matter. Ndara's case favours the accused here, not the Crown. The State in Ndara's case discharged the onus burdening it, of negativing self defence as having justified the violence indulged in by the accused: the violence against which he claimed to have defended himself, was legitimate force necessary to effect his arrest. And the Goliath case is not in pari materia.
In short, the onus burdened the Crown to establish all the elements of the offence charged beyond reasonable doubt and the court ignored that basic principle.
Even without the misdirections by the court a quo, it appears to me that the probabilities favour the version of the accused, rather than that of the Crown, bearing in mind the flaws in the latter. It is unlikely that a couple would for no reason at all have picked a quarrel with a group of five men. On the Crown version the killing of the deceased must have been pre-determined since nothing at all happened to spark it, and why he should have been the one chosen to be killed, moreover in full view of a number of witnesses in the shop, remains a mystery. It seems far more probable that a man armed with a stick, one of a group of five, could have started what was intended as a minor affray, with tragic consequences. There is some support for the defence theory that sports rivalry may have led to this: in the evidence for example of PW3 who thought the alleged invitation to go out into the rain to talk related to a soccer match. We know that the five chased after the two accused when they were all outside the building. And I find it more than improbable that a cold-blooded killer would have acted in the fashion the accused did after the event. His evidence was not challenged or contradicted that he went off to look for a nurse. The Crown itself led the evidence that the two accused went to the police of their own accord.
It is, of course, unnecessary to find that the probabilities favour the accused. This is not a civil trial. If there is a reasonable doubt whether the version of the accused may not be true, the Crown has not discharged the onus burdening it of proving all the elements of the offence charged, more particularly the intention to kill.
The only remaining question is whether the accused is not on his own evidence guilty of culpable homicide.
In my view he overreacted, and too quickly, in his counter-action against the
deceased. He says he was frightened by the actions of the deceased. He however at no stage suggested that the latter's stick was a potentially lethal weapon, or that he feared serious bodily injury. In short, there is nothing in the evidence which raises a reasonable doubt whether he was not negligent, did not exceed the legitimate bounds of self-defence, in using the weapon he did under the circumstances to which he himself testified. The finding on the merits should accordingly be reduced to one of guilty of culpable homicide. The sentence must also be reduced in consequence.
I have already referred to his youthfulness at the time of the event, and the fact that he was still at that stage a scholar and thus, one must accept, immature. Although he was released on bail shortly after his arrest the fact that he had this trial hanging over his head for seven long years is a factor that must also weigh heavily in his favour. Had he been tried within a reasonable time after he handed himself over to the police, conviction and punishment would have been something of the past by now. He is a first offender. And it would be wrong in my view not to take cognisance of the fact that because of the delay on the part of the Crown, he has in those seven years matured and acquired responsibilities: a wife and a baby; and because of the clearly incorrect assessment of his character by the trial court, he has since November last year faced the bleak prospect of for practical purposes losing them while slow years dragged past for a period that almost equals that of his life so far.
To take the life of another is accepted as being a serious matter. In my view on his version of the episode, because of the factors mentioned above, it would nevertheless be appropriate to let the accused now get on with his life, as he should long since have been able to do were it not for the Crown's delays. And the interests of society can be adequately catered for by the imposition of a sufficiently substantial
suspended sentence to encourage the appellant, in so far as it may be necessary, to be less impetuous in his violent reactions than he was at the relevant episode.
The appeal succeeds to the extent that the conviction is altered to one of guilty of culpable homicide.
The sentence is set aside and replaced by the following: the accused is sentenced to 48 months' imprisonment of which 42 months are suspended for three years on condition that the accused is not convicted of culpable homicide or any more serious offence, involving the use of violence, committed in that period.
In the result he should be released immediately or at any rate shortly after this judgment, in order to assume his responsibilities to his family and enable him to put the events of 1993 and their consequences behind him.
L. van den Heever
JUDGE OF APPEAL
PRESIDENT OF THE COURT OF APPEAL
JUDGE OF APPEAL
Delivered at MASERU on this 14th Day of April 2000
For the Appellant: Mr M. Mathafeng
For the Crown : Mr N.Rantsane