S v Moteane (CRI/T/5/97)

Case No: 
CRI/T/5/97
Media Neutral Citation: 
[2000] LSHC 4
Judgment Date: 
8 May, 2000

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CRI/T/5/97

IN THE HIGH COURT OF LESOTHO
In the matter of:

REX

vs

MOSUOE MOTEANE
JUDGMENT

Delivered by the Hon. Mr Justice M.L. Lehohla on the 8th day of May, 2000

The accused is charged in two counts with criminal offences.

In Count I he is charged with murder it being alleged by the Crown that on or about 26th December, 1995 and at or near Thaba Tseka in the Thaba Tseka district he did unlawfully and intentionally kill 'Muso Moshoeshoe.

In Count II the accused is charged with attempted murder in that upon or about 26th December, 1995 he is alleged to have unlawfully and with intent to kill, shot and

2 wounded Toka Lerotholi at Thaba Tseka in the Thaba Tseka district.

The accused pleaded not guilty to both these counts.

In an attempt to prove its case the Crown led the evidence of only one witness PW1 Toka Lerotholi while the depositions of the rest of the witnesses it sought to lead were admitted by the accused and his counsel on his behalf.

The evidence of the following witnesses led at the preparatory examination of this case was admitted; viz

PW2 'MamakhooaLehloenya PW3 'Mantholeng Lekhera PW4 Mohalenyana Moshoeshoe PW5 Trooper Moremoholo PW7 Lesole Lekhanya PW8 Letlatsa Sesheme PW9 Sgt Bebi PW10 Captain Matela

The post-mortem Exhibit A, in respect of Count I, and the medical report Exhibit B in respect of Count II including Exhibits C and D the firearms examiner's

3 report and firearm certificate respectively were all admitted. Together with the above

witnesses' depositions these were made part of the record in the instant proceeding.

I should point out that even the evidence of PW1 was almost entirely admitted but for the portion appearing in the Preparatory Examination deposition to the effect that after shooting the deceased and the deceased had fallen back into the vehicle the accused said "I told you that I will kill you".

PW1 was challenged at length by Mr Jefferys for the defence on this statement but PW1 was adamant that the words were uttered by the accused at the relevant time stated. The accused in turn when giving evidence denied ever uttering such words but was hard put to it to explain how then he could recall not saying what he is said to have said while at the same time the event stated seemed to fall within the time-frame of his black-out. More of this later. But before getting to that stage my reading of the record and recollection of the context in which PW1 related his story I was left with a lasting impression that the accused uttered those words.

The summary of the Crown's evidence which is largely common cause is that PW1 who is a member of the Lesotho Mounted Police services had occasion to be

4 travelling in a government vehicle with his colleague the deceased who was driving

it. This was on 26th December, 1995. The two were doing patrol duty which had started between 6 a.m. and 7 a.m. on that day.

It was during the course of their patrol duties which took them to Khalieli that they decided to stop at the junction leading to Bokong. Before actually reaching the junction they observed a white van parked on the side of the road facing Thaba Tseka township. It was when the two policemen i.e. the deceased and PW1 were about to pass the white vehicle that they noticed that the occupant of this vehicle wanted to stop them. Thereupon and in compliance with the perceived wish of the accused they stopped and reversed their van to almost a spot opposite the accused.

The accused approached the occupants of the government vehicle. In his hand he was hold what turned out to be an album Exhibit "E" in these proceedings.

The accused asked if the deceased knew this album. It is significant that the deceased did not answer but instead seemed according to PW1's observation, to be laughing.

5 The accused asked "hey man is this not your album?" but was vouchsafed no

reply. He inquired and demanded further "where are my children". To this the deceased said he didn't know where the accused's children were. The accused made a pointed demand "Moshoeshoe give me my child". Saying this he took out his gun. The deceased tried to drive out of harm's way but got shot on the chest. Therefrom the vehicle was moving on its own.

PW1 opened a passenger door and had tried to take cover whilst outside the vehicle but got shot on the buttock.

PW1 had gone to a higher place on the mountain side about 50 paces away from the vehicle and its remaining occupant when he looked down and saw the van ditch into a furrow and heard the deceased as he opened the door say to the accused "Ntate Moteane, you have killed me for something which you don't know".

The deceased fell back on to the seat of the van while his feet were protruding outside. It is at this stage that the contested words are alleged to have been uttered by the accused.

6 The accused called to PW1 to accompany him to the charge office. But PW1

disobliged him. The accused proceeded to his vehicle still holding Exhibit "E". Thereupon PW1 went to check on his colleague whom he found breathing hard as well as producing gurgling sounds in his throat. The deceased was eventually taken to Parray Hospital where he succumbed to his injuries. PW1 himself was successfully treated for his injury.

Medical evidence collected from the post-mortem report shows that death was due to (sic) "gun shot chest with haemothorax leading to respiratory failure".

External appearances reflected four gunshot entry wounds on point of chest on the right and four exit gun shot wounds at the back on the right. There was another gun shot entry wound under the right part of the chin exiting on front of the chin.

The doctor discovered that the aorta had been severed and the right lung had collapsed due to gun shot wounds resulting in extensive haemothorax.

PW2 was an occupant of a taxi when she arrived at the junction leading to Bokong on 26th December, 1995 and she saw the accused vehicle come and turn to

7 face Thaba Tseka township. Shortly afterwards the police vehicle came and passed

but the accused tried to stop it by raising his hand. The police vehicle apparently because it was moving at high speed stopped some distance ahead only to reverse to a spot opposite where the accused had initially tried to stop it. The accused showed the deceased a brown book (apparently the album), placed it on the bonnet of the police vehicle and the two exchanged utterances in a language that was unfamiliar to PW2 who only heard the accused say "I want my child" from the deceased. The two were shouting at each other. PW2 saw the accused touch his pocket area and what followed was a gun report. She said she heard the gun report four times. This is in contrast to PW1 who said he didn't know how many times the gun report went. PW2 saw the police vehicle move without her being able to discern who could have been driving it. On proceeding to it PW2 saw that PW1 had alighted and gone above the donga. PW2 didn't know the source of the quarrel between the accused and the deceased. She later leamt that the deceased had died.

The evidence of PW3 is more or less on all fours with that of PW2 except that he heard the gun report three times whereupon he says he became confused and ran away.

8 PW4 is the brother of the deceased who learnt of the deceased's death and

proceeded to the government mortuary at Maseru on 29th December 1995. The body was transferred to a private funeral parlour where the post mortem was conducted in PW4's presence. He is the one who identified his brother's corpse to the doctor who performed the post-mortem examination.

The evidence of the rest of the witnesses who testified at Preparatory Examination merely serves to augment or clarify points raised by the witnesses whose evidence I have attempted to summarise above. To avoid repetition and prolixity it would be beneficial to proceed to the defence case.

After the Crown had closed its case the accused gave his evidence followed by that of an expert witness DW2 Mrs Hettie Redelinghuys the psychologist. I may just mention at this stage that at the conclusion of DW2's evidence the Crown as it was entitled to do sought leave of Court to adduce rebutting evidence and this was granted but at the end of the day the Crown did not pursue that option.

To return to the accused's version: He told the Court that he is employed by the

9 Ministry of Education at Thaba Tseka as Director of Thaba Tseka Technical Institute.

He holds a B Ed Honours in Design Craft Technology and Master of Science in Extension and Technical Education.

The accused studied for his degrees in the University College of Cardiff in Wales and Tuskegere University in Alabama USA respectively. He is married and has four children.

The accused recalls that the deceased was shot on 26th December, 1995.

The accused gave background to events of 26th December by referring to events of the previous day. Thus he stated under oath that on 25th December, 1995 he left his house in Thaba Tseka at about 9 a.m. for Katse Dam accompanied by his children and the maid. The purpose for the visit was largely sightseeing and taking of photos. Katse Dam is itself famous as a tourist attraction in this territory. The party had lunch there.

At the end of that day the accused returned home and went to bed slightly after 9 p.m. Around midnight the accused's youngest daughter came to his bed-room and

10 aroused him from his sleep stating that her elder sister and the maid who share the

same bedroom with her had slipped off and left her on her own. The accused satisfied himself that this was indeed so, by going to check in the bed room in question. He made initial investigation which led him to conclude that the two females had gone out through the front door as he discovered that it was unlocked.

The accused locked the door and took his younger daughter to sleep. He testified that he got very disturbed by this particular incident. In the result he didn't sleep from then on that night.

When he detected an attempt by someone to open the door at 3 a.m. the accused immediately rose and went to check. Thereupon he saw his daughter and the maid running away apparently when they were surprised by lights being switched on by the accused.

The accused switched off the lights, went back to bed but an hour or so afterwards he went to his daughters' bedroom and looked underneath the bed stead where his eldest daughter sleeps. There he discovered empty cans of wine; and looking further he found the album Exhibit "E" with the photos of the deceased.

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The accused then embarked on a strategy with his son Rataunyane to take two different directions and reconvene 20 minutes later at the house in an attempt to locate the whereabouts of the elder daughter and the maid. Thus when the accused and his son reconvened he learnt that the two females had been seen partying the night away at some bar in town with the deceased.

The accused then picked up the album and made for the Deputy Commander's place or office, it matters not which, because the accused thought better of that and decided to see first for himself if he could find his daughter. He thought that if it was possible to locate her and the deceased from a distance by means of the vehicle that he knew the deceased to usually drive, thereafter it would be an opportune moment to go and report to the Police Chief and supply all the necessary information.

Thus the accused went past the deceased's home and seeing no vehicle outside he turned back but not before trying to negotiate that turn some 300 to 400 metres ahead as the road is rather narrow before reaching that point where a turn would be possible.

It was while the accused was in the process of trying to turn back at the

12 junction ahead that he saw a police vehicle driven by the deceased approach in the

opposite direction. The accused stopped his vehicle and stepped out trying to flag down the other vehicle which stopped some distance after passing him and reversed towards where the accused was standing.

The accused asked the driver about the album and how it got to be in his house. The deceased/driver just looked and giggled. This aspect of the matter chimes in with the version of PW1 who said when so confronted by the accused the deceased said nothing but seemed to be laughing. As stated earlier and in line with the defence being tried to be raised taken along with the background to the entire scenario this cannot be lost to the keen attention of the Court.

The accused said he felt so infuriated at this particular juncture that he asked the deceased a second time "where is my daughter?" Thereafter he says he only remembers cocking the gun and as his mind went hazy he doesn't recall what happened. He hazily remembers the passenger who was with the deceased opening the passenger door and going out through it. He says he hazily remembers firing the first shot and nothing else afterwards.

13 The next thing that he recalls was when he called to PW1 to proceed with him

to the Charge office because, as he says, it dawned on him then that the shot he remembered firing mut have caused an accident. However PW1 did not respond, at least affirmatively to the accused's request. Thereupon the accused went to his own vehicle and drove to turn himself in to the police at Charge office. He also handed his firearm to the police in the same instance.

The deceased's age at the time was estimated at somewhere in the thirties while the accused's daughter who was in love with the deceased, a married man for that matter, was just sixteen.

The accused had been having problems with this type of liaison developing and growing between his daughter of tender years and the deceased.

Around the first half of the year in question he had leamt from his neighbour that during his numerous absences the deceased used to park his vehicle in front of the accused's premises outside the gate in company of the accused's daughter.

This disturbed the accused very much indeed because he considered this as

14 holding nothing at all for his daughter's future which he, as a parent, was taking all the trouble to make secure by keeping her at school and hoping she would make a success of his efforts in that regard.

Another prior incident which kept the accused in unwholesome anguish and anxiety regarding his daughter's liaison with the deceased is that he had kept his daughter at a boarding school far away from Thaba Tseka and possibly beyond the immediate and constant contact with the deceased. Since the accused was living far away from this school he made arrangements with his elder brother Mohlalefi who stays at Maseru West to accommodate the daughter on home-weekends spent away from the boarding school.

But one afternoon when the accused had travelled to Maseru and had proceeded to Maseru West to see his daughter and relatives there he saw a vehicle parked on the road outside MohlalefTs gate. When he pulled close he saw his daughter talking to a driver who sped his vehicle away as the accused came closer. The accused asked the daughter who the driver was and she lied and said it was some stranger asking for directions. However something had told the accused that the daughter couldn't have been truthful for she looked nervous. The accused decided

15 to pick up the spoor and follow the vehicle which had by then disappeared from view.

But the accused had read the reaction of someone, a possible passenger or co-traveller with the deceased who seemed bewildered by the deceased leaving him so suddenly and without explanation regarding why the precipitous hurry! Indeed the accused's instincts paid off because he found the deceased's vehicle waiting around the comer apparently expecting his would-be passenger to emerge and embark. Thereupon the accused approached him and appealed to him to let his daughter who was under age be for she had no career while the deceased had his. The deceased expressed his apology.

The accused was beside himself with agony because the incident had occurred exactly where he thought his daughter was safe from the clutches of an old and cunning philanderer devoid of morals. The accused subsequently reported the matter to Police Chief Marabe Penane who was stationed at Thaba Tseka.

The other incident concerned a telephone call from the accused's nephew of tender age Taunyane who phoned from Maseru saying he wanted to visit the accused at Thaba Tseka. Taunyane asked to talk to the accused's daughter. Surprise, surprise - There and then the accused's daughter was in conversation with the deceased!

16 Taunyane's mother questioned the accused complaining that she couldn't figure out

how Taunyane had become friends with the deceased. Taunyane was at the time aged seventeen.

All this background serves to show continuous thwarting of every effort the accused was making to discourage the growth of the unbecoming liaison between his daughter and the deceased. The attendant frustration is understandable that the accused felt piqued and riled by the realisation that he was fighting a losing battle. Suspicion and anxiety were feeding on his mind on an ongoing basis. His anxiety was not eased by the realisation that his teenage nephew was also being absorbed and swept into the vortex of an unseemly association to which the deceased had constituted himself the bedrock and sheet-anchor.

The accused's anxiety increased as his daughter's performance at school slumped dramatically in direct response to the unrestrained flourish of her love affair with the deceased. She was among the group who breached the school discipline and had to be spanked with other culprits by their respective parents at the behest of a mother superior who was the principal of the school. The intensity of the love affair did not relent nor did the accused's distress and frustration on the other hand.

17 Prior to the start of the affair between the deceased and the accused's daughter

the accused had no problem with his daughter. In fact her school progress was far above average.

The accused confessed to being a religious man, a Presbyterian of the Lesotho Evangelical Church. His childhood was moulded on strict moral code and almost stifling puritanical lines. His parents' and his own attitude towards extra-marital affairs is highly repellent and of total intolerance. Yet he himself encountered a problem in 1988/89 when he was in the United States of America reading for his Masters Degree. On his return home he found his wife pregnant by another man. Without telling any member of his family he made a unilateral decision that that child would be bom elsewhere than at his home. The accused felt very distressed about this. As a result the relationship between him and his wife plus his in-laws has been strained. However he hasn't divorced his wife for this unpardoned act of infidelity.

Prior to the accused cocking his firearm he said he recalled the deceased after giggling; dropping his left hand from the steering wheel and that the vehicle started moving while gun fire also took place though he says he can't recall which came first.

18 Under cross-examination the accused said that he had no control of the

circumstances that led to the shooting, in reply to the question put to him that he seemed to have channelled his anger to the wrong person. He conceded that his anger was channelled at the wrong person. The reason he gave for this was that he had no control over his actions altogether.

He indicated that the giggling prompted the shooting. He stressed that this was compounded by two further factors namely the deceased's indifference to the question put to him plus the black out that suddenly seized the accused.

The accused said the lowering by the deceased of left hand from the steering wheel was perceived as a possible act of aggression or as an aggressive movement.

The accused's story as to what happened after the cocking of the gun is bedevilled by his inability to recall what happened due to the so-called black out. He merely repeats that he recalls the cocking of the gun and the fact that PW1 made to open the door and rush out through it "but a second thereafter, then the firing took place, and any other subsequent firing that took place there I have no remembrance of it".

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An explanation of the sort of scenario that consists in a black-out is to be found

from the evidence of DW2 Mrs Redelinghuys.

Indeed Miss Mokitimi for the Crown put a question that is very much pertinent when she asked the accused to explain what a complete black out means to him, and when she further indicated that if the black-out is complete then it means the sufferer cannot recall or hear anything. The accused realising that the answer given earlier could lead to some awkward conclusions regarding the inconceivable state of affairs wherein one perceives things despite being in complete black-out improved his answer by indicating that he understands a black-out to be a process that finally leads to a complete stage. Thus he explained that events that he testified to prior to shooting were stages in the process towards a complete black-out. Thus he indicated that the final stage was the one of which he had no knowledge or recollection of any other hearing after the first shot. Any feeling that the accused's story is an afterthought, that improves as the case proceeds along, is dispelled by the fact that what seems to be an improved version coincides with contents of the expert's report which was prepared and concluded long before the accused gave his own evidence.

He said he came out of the complete black-out when he spoke to the passenger

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policeman.

The evidence at Preparatory Examination even by PW1 in this Court revealed a somewhat astonishing feature of a man in the nature of the accused who after shooting PW1 expected him to go along with PW1 to the Charge office or whatever place. It is inconceivable that ordinarily if the accused was aware he had shot PW1 for some reason completely obscure to PW1 that the latter could willingly come closer to the accused who was even then still holding his firearm. It would seem therefore that there is some credence to the version that the accused had been into a black-out when he fired several shots that he did unless he could be said to be an actor playing an act with which to bamboozle courts of law at subsequent hearing when he embarked on this extraordinary move to invite PW1 to accompany him to the Charge office in the circumstances outlined immediately above.

In the same breath I would reject therefore as false the evidence by the accused that when he spoke to PW1 and invite him to accompany him to the Charge office PW1 was behind the van next to which the accused had come. Under such circumstances good sense tells me that PW1 would avoid the accused like a plague. It would be most imprudent of PW1 that after putting a fair amount of distance

21 between himself and the assailant who shot at him for no apparent reason would

squander the safety granted by the 50 metres distance from his assailant and risk being shot at again, perhaps even fatally this time because he willingly cast caution to the winds. The accused's further attempt to give substance to his implausible story that PW1 could very well have responded to his call unaware of the injury he had sustained because PW1 even at Preparatory examination said he felt the injury much later truly strains credulity.

Indeed the learned Counsel for the Crown ran the Preparatory Examination text to earth where it states of PW1 "I then opened the passenger door. I had taken cover. Whilst I went out I felt a bullet pierce my buttock". This clearly shows that PW1 had already been aware of the injury he had sustained before the accused called to him to go along with him to the Charge office. This is patently contrary to what the accused would have the Court believe. This further heightens the ridiculousness of the accused's story that despite conceding the accuracy and correctness of the text as reflected at Preparatory Examination he nonetheless maintains PW1 had braved all the trauma he had just had and come closer to him to be party to that unilateral conversation.

22 A point of some nicety revolves around the words the accused is alleged to

have uttered after shooting at the deceased namely that "I told you I will kill you". In an attempt to show either that the accused never uttered those words or that if he did he should not be taken to have meant that he intended killing the deceased, Mr Jefferys in re-examination put the pertinent question whether the last time before the incident when the accused met with the deceased, the accused ever told the deceased that he would kill him. To this the accused replied; no.

Indeed the deceased having been a policeman who should know his rights under the law when a serious threat like the one in question was made earlier as it is implied, would have had nothing to stop him from making a formal complaint against the man threatening a criminal act regarding his life.

The fact that the deceased took no action when this threat was made as implicitly suggested in the text that it was made prior to the killing can only mean that when the words uttered by the accused were heard by PW1 they were no more than an expression of a victor's bravado. On many occasions it has been found that the utterers of similar expressions make them without meaning that actually a previous

23 warning or intimation had ever been made at all.

The Court read the report of DW2 Mrs Redelinghuys the 2nd defence witness.

DW2 is a qualified Psychologist holding a degree in primary education and an Hons Degree in Education Psychology. She also holds a Masters Degree in Educational Psychology. She is trained and is specialising in Forensic Psychology.

DW2 was previously requested and she complied to consult with the accused and conduct tests necessary for the establishment of the accused's psychological profile at the time of the shooting.

DW2 testified that she accordingly saw the accused on 20th October 1998. She subjected the accused to a battery of tests prescribed and adopted for South African condition and used by psychologists internationally.

The accused's intelligibility proved average; meaning according to DW2, that he is usually in control of life situations. She tested the accused's personality. The tests revealed the accused as having a notably low decree of anxiety and that he is a stable and well-adjusted person who feels reasonably self-assured, complacent and

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self-satisfied.

The witness told the Court that the accused portrays a moderately high degree of social sophistication with a well developed insight into the motives of others. She indicated that the accused has a high level of motivation to persevere with the problem until it is solved; and that he has no problem in associating with others and no difficulty forming inter-personal relationships; and that he is therefore quite gullible and ready to accept and trust people in general. He does not show symptoms relating to aggressive criminal behaviour.

The next test conducted is one referred to as Personal Harm Social and Formal (PHSF) relations questionnaire.

The witness took the Court through this and subsequent other tests all of which tended to put the accused in socially and psychologically good light.

The witness related the interview she had with the accused which furnished background to the incident that gave birth to this trial. I have already in some ways touched on those when dealing with the accused's own evidence. They relate to the

25 accused's strict upbringing based on Christian principles and the effect his daughter's

downward trend in performance at school had on him.

The witness indicated that all these forms of stressful factors resulted in the accused undergoing decompensation otherwise known as automatism resulting from the lowering of integrated functioning and eventually a possible breakdown of a person.

The witness told the Court that a prolonged stress may lead to pathological over-responsiveness to stressors. She indicated that stressors can take different forms. They can be environmental stress. She said stressor can be people or different things.

She indicated that a perception of threat to the individual who labours under this form of thing, brings an increased rigidity of competitive processes making it impossible or difficult for the individual to see the situation objectively or to perceive the range of alternatives actually available.

The witness also indicated that stressors build up to a point where the situation

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is triggered off as in the case where one waves a read flag in front of a bull and the

bull charges.

DW2 told the Court that personality decompensation under excessive stress appears to follow a specific course. First there is an alerting of the organism and mobilising of resources for coping with the stressor.

The witness took the Court through her prepared report and indicated that the accused falls neatly into the category of a person who at the time of the offences charged was a subject of decompensation. Mr Jefferys was quick to utilise this ready made grist that was brought to his mill and in arguments submitted that it is clear the accused was in a state of automatism therefore cannot be held criminally liable.

Throughout DW2's testimony the Court was on its guard lest it be blinded with science.

The learned Counsel for the Crown in cross-examination of this witness raised questions whose answers were largely elucidatory and in no way enabling the Crown to gain a toe-in Into the edifice of defence within which the accused found himself

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ensconced.

Thus under cross-examination DW2 went further to explain what decompensation is. She elucidated that the person suffers from psychological fatigue and his thinking ability and emotional ability are disintegrated as well as his personality. She added that the perception and thought process become disorganised and therefore amnesia can be the result of that.

DW2 indicated that it is not possible to tell the exact length of time it takes for

the removal of stress factor. However she said temporary amnesia usually starts quickly and ends quickly.

DW2 stressed that the stress may have influence on the accused but not to the extent of reaching uncontrolled violent behaviour because he is trying not to do what is in contrast with his characteristic behaviour. She emphasised that the stress to have effect has to build up as well as the personality functioning lowering gradually till the subject is at some point triggered. She said triggering is not just effected by the presence of stressor but by a lot of stress.

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At the close of the defence case Miss Mokitimi as I stated earlier indicated that

the Crown was no longer going to call an expert witness in rebuttal of factors raised by the defence in favour of the accused.

She accordingly argued that the accused was acting under provocation in which event then he should be found guilty of Culpable Homicide in Count I in accordance with provisions of Criminal Law (Homicide Amendment) Proclamation 42 of 1949. Further that because this Proclamation is confined to murder charges only then therefore the accused should at least be convicted of assault with intent to do grievous bodily harm in Count II.

The Crown in motivating its plea to the Court reposed its faith on the authority of S vs Henry 1999(1) SA CR 13 where the court held that it is trite law that a cognitive or voluntary act is an essential element of criminal responsibility, and therefore where the commission of such an act was put in issue on the ground that the absence of voluntariness was attributable to a cause other than mental pathology, the onus was on the state to establish that element beyond reasonable doubt.

The Court reminds itself in parenthesis, that DW2 said that the accused is not

29 pathological in other words he is not mentally sick.

Miss Mokitimi went further to elaborate on the gist of the authority of Henry above and indicated that however the state is said to be assisted, in discharging this onus relating to pathology by the natural inference that, in the absence of exceptional circumstances, a sane person who engaged in conduct which would ordinarily give rise to criminal liability did so consciously and voluntarily. Common sense dictated, it was submitted, that before this inference would be disturbed a proper basis had to be laid, which was sufficiently cogent and compelling to raise a reasonable doubt as to the voluntary nature of the alleged actus reus, if involuntary, that this was attributable to some cause other than mental pathology.

Miss Mokitimi accordingly and I would say correctly referred to Henry as a departure from the old South African approach and indicated that this authority is more in line with the answer that was provided by the Transkienian Code which in turn compared favourably with provisions of the Criminal Law (Homicide Amendment) Proclamation 42/1949 insofar as relates to provocation situation.

The learned Counsel cited section 3(1) (which says)

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"A person who -

  1. unlawfully kills another under circumstances which but for the
    provisions of this section would constitute murder; and

  2. does the act which causes death in the heat of passion caused by sudden
    provocation as hereinafter defined and before there is time for his
    passion to cool,

is guilty of culpable homicide only."

It is significant that this law relates to a situation where death has occurred and confines itself to the reduction of a murder charge to a conviction for Culpable homicide and makes no provision for reduction of any other charges from one kind to a conviction tagged on to a lesser offence.

It is thus obvious why Mr Jefferys fought shy of accepting what otherwise would seem to be a generous offer from the Crown.

With regard to the facts Jefferys argued that the version of the accused as corroborated by those persons who made various reports to him and who would have been led in evidence, has been accepted by the Crown.

He submitted that the Psychologist's evidence was uncontradicted by any form

31 of expert evidence which might have been led by the Crown and consequently urged

the Court to accept it in its entirety.

I may just highlight even at the cost of repetition the neat outline of the evidence given by DW2 with regard to the accused.

  1. that he is a stable and well adjusted person

  2. that he is more inclined to give consideration to rational arguments than
    act on emotion

  3. that he is considerably principled and controlled by a strong sense of
    duty

  4. that he is moralistic and rule-bound as well as controlled and socially
    precise

  5. that he has the necessary coping skills to handle life's situations. He is
    not an aggressive person and is in control of his emotions and actions.

  6. that he is a family man

  7. that he shows remorse for the acts he committed as also symptoms of
    depression and disappointment in himself

(h) that he is a religious person.

I may add that if his reaction after the shooting was not as immediate as it was when he called to PW1 to accompany him to the Charge office one could have been tempted to think that his was a put-on act. But as I said the tenor of events supported

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as it is by witnesses who were around including PW1 himself dispels any lingering

feeling that his claim that he was in a black-out is without substance. Moreover existence of a black-out as known in the world of science has been adequately dealt with by DW2.

Thus Mr Jefferys drove the point home that on the basis of DW2's tests and findings the accused had suffered from decompensation or automatism at the time of the shooting and consequently was not accountable for his actions. This means that he could not have formed the intent as a consequence of a temporary mental breakdown.

Learned Counsel submitted that this result came about as a consequence of extreme stress which DW2 identified as having developed due to the accused's daughter's affair, as also that of his own wife. His strong religious convictions and high moral character precipitated the breakdown which he suffered.

Learned Counsel urged the Court to pay heed to the evidence which indicated that if the stress continues after the decompensation stage has been reached the individual is often able to find some means of dealing with it and so resists

33 psychological disintegration. But during the late phases of this stage the individual

tends to become rigid and to cling to previously developed defences rather than trying to re-evaluate the stress situation and work out more adaptive coping patterns.

In the face of continued excessive stress, the individual resources are depleted and the coping patterns called forth in the stage for resistance begin to fail. Mr Jefferys referred the Court to measures that the accused adopted in an attempt to diffuse the situation and stop the affair as highlighted in DW2's report at page 7.

In the absence of any evidence to the contrary the Court found itself obliged to accept DW2's scientific evidence that automatism or decompensation is generally found to exhibit itself in family matters i.e. parent-child, or husband-wife

relationships.

Learned Counsel endorsed the expert's conclusion that the accused was therefore not criminally liable for killing the deceased and shooting PW1.

The Court was referred to S vs Nursingh 1995(2) SACR 331(1) for recognition in various cases and internationally of automatism as a defence. My perusal of

34 available material in this Kingdom has not enabled me to find a case where sane

automatism was either raised as a defence or pleaded successfully as such.

However the authority of S vs Nursingh above is very instructive on the subject and its implications where successfully raised as a defence.

The head note reads -

The accused, a university student, was charged with three counts of murder, it being alleged that he had shot and killed his mother, his grandfather and his grandmother. It was alleged that the accused fired a 9 mm pistol at his mother and maternal grandparent and that three shots struck his mother, and grandfather and four shots his grandmother. The defence put in issue the accused's mental ability or capacity at the time of the shooting to know what he was doing and whether what he was doing was wrongful.

It was contended on behalf of the accused that by reason of his peculiar family circumstances and upbringing, he had a personality make-up which pre-disposed him to violent emotional reaction in the event of other events occurring that would push that pre-disposition into a state of eruption, i.e. that when those circumstances

35 occurred to trigger off this disruption on his mind, his mind would become so clouded

by an emotional storm that seized him that he would not have the mental ability to distinguish between right and wrong and to act in accordance with that insight.

Evidence was led of prolonged sexual abuse by his mother.

Expert evidence was led from a psychiatrist and a psychologist who had both examined the accused and were of the opinion that what had happened on the evening in question was a singular combination of circumstances that faced the accused, with his vulnerability of make-up, with a sudden and immediate threat to him of devastating proportions. Occurring in the context of the history of abuse, it triggered off a state of altered consciousness which manifested itself in a markedly reduced or even a wholly incomplete awareness of normality, with accompanying loss of judgment and self-control The resulting mental state was identified by the psychiatrist as a separation of intellect and emotion with temporary destruction of the intellect. This is a syndrome which is well-known and documented in contemporary psychiatric literature and research.

The psychologist identified the situation as a known and identified mental

36 trauma which occurs in the context of a particular relationship of people like

husband and wife or parent and child, when a person with a particular emotional vulnerability is incited by some stimulus, resulting in an overwhelming of the normal psychic equilibrium by an all-consuming rage, and a consequent disruption and displacement of logical thinking.

Both experts explained that such an occurrence was not a pathological one in that it does not stem from a mental disorder in the normal sense of the word. It is a non-recurring event, particularly if the cause of it was thereby removed. During its occurrence, ordinary motor movements of the body take place with normal efficiency.

Thus Mr Jefferys pointed out that the Court considered this to be a case of sane Automatism. He submitted that what the Court in Nursingh above found compares very well with the situation obtaining before the Court in the instant case. Learned Counsel thus drew the Court's attention to the fact that a particular incident triggered off a state of altered consciousness which manifested itself in a markedly reduced, or even wholly incomplete awareness of normality with accompanying loss of judgment and self-control. I accept that this state of affairs is truly reflected in the instant case.

37 Mr Jefferys laid much stock by the fact that experts in Nursingh gave evidence

showing that ordinary motor movements of the body can take place with normal efficiency and that the syndrome is characterised by an inability to remember what happened, although that particular aspect is simply the result of the fact that the cognitive recording ability of the mind is not registering during the period of the upset and, therefore, there are no recollections to recall, or it is registering imperfectly in fragments so there may be patches of recollection. Also because the aggressive behaviour in response to the stimulus is alien to the person concerned, it is further characterised by subsequent response to awareness of the deed being a fearful and guilt-ridden reaction.

I accept that indeed Nursingh is very much on all fours with the instant case in that we are dealing with automatism occurring in the context of

(a) parent and child relationship; a family relationship which has the added flavour of fouled husband and wife relationship.

The Court is alive to the existence of on-going stress resulting from the relationship which the deceased had with the accused's daughter. DW2 fully debated this in the context of the accused's high moral character and repugnance towards extra-marital or pre-marital sex.

38

  1. The trigger in the instant case was the deceased's giggling at the
    accused's anxious inquiries regarding the album and the whereabouts of
    his daughter.

  2. The accused does not recall the entire shooting but does so imperfectly
    and in fragments. This is adequately manifested by his expectation that
    PW1 would comply with the request to accompany him to the Charge
    office. The accused couldn't have entertained such expectation if he
    was aware when he was shooting at PW1 that he had done a thing which
    could not have made the latter willingly accept the invitation to
    accompany the accused anywhere more especially when the accused was
    still holding the firearm.

  3. Immediately after the shooting the accused's mental awareness was fully
    restored and he knew precisely what must have happened with regard to

the deceased in particular.

I was referred to S vs Wiid 1990(1) SA CR 561 (A) written in Afrikaanse a language with which this Court is not familiar.

But the head-note which is in English shows that : where the defence of a temporary non-pathological incapacity is raised, (as in the instant case) the onus rests

39 on the State to rebut it, but a foundation should be laid in the evidence for the raising of the defence. If, on the evidence, there is a reasonable doubt whether the accused, at the time of the commission of the office, had criminal capacity, he or she should be given the benefit of that doubt.

I may just indicate that while a good foundation was undeniably laid by the defence for the claim of non-pathological incapacity raised in the instant case, it was not rebutted at all. I should hasten to indicate that such failure is not attributable to the incompetence of the Crown but to the fact that the fortress hemmed round the defence proved impenetrable.

Wild shows that indeed the accused had had to appeal before he could be acquitted after the principles which are applicable when non-pathological defence is raised were restated by the appeal Court which found that the accused-appellant who had shot and killed her husband was entitled to a benefit of doubt because it was doubtful whether at the time of the shooting she had the necessary criminal capacity.

In S vs Stellmacher 1983(2) SWA 181, the court found it inappropriate to convict the accused suffering from mental illness or mental defect as the accused

40 suffered temporary mental confusion which was attributable, not to mental

abnormality but external stimuli. The accused was accordingly found not guilty and discharged as the evidence had not established a basis for reliance upon mental illness or defect, but in fact upon non-accountability.

I may just conclude by saying that the authority of Nursingh represents a wholesome recognition of an aspect of the law that has been enriched by the advance in science for the benefit of accused persons who have committed offences for which they are criminally unaccountable. The recognition that their criminal unaccountability is total fills a lacuna into which many previously either suffered death by hanging, long terms of imprisonment or confinement in mental institutions designed for offenders certified insane.

In CRI/T/27/94 Rex vs Nkhahle Mothobi (unreported) it was thanks to the latest developments in diagnosing diseases of the mind that the accused escaped either of the two above categories above, after the doctor who had examined him after two postponements of the case to enable him to do so had testified that he was fit to stand trial despite signs that the Court observed to be inconsistent with sanity in the accused. After the third postponement the doctor chanced on the rare and latest in

41 contemporary literature on the subject which satisfied him that the accused was

certifiably insane by a wide range of fifty-one points in the graduation or calibration of points where thirty-one points qualify the subject to be certifiable as insane and therefore not fit to stand trial.

In Henry above unlike in the instant case the state secured its own expert witness and the judge believed the state's expert and rejected the defence's expert.

In an attempt to maintain a balance between the Crown's case and the defence's case I find that on its own even without inadequacies and weaknesses in the Crown's case the strength of the defence case is sufficient to sustain the accused's acquittal without relying for this verdict on the tenuous benefit of doubt usually granted accused persons on basis of legal technicalities.

The accused is found not criminally accountable for the offences charged and is therefore acquitted and discharged in both counts.

But as a safety measure for the protection of the community his firearm is forfeited to the Crown and the accused is strongly advised to consult his psychologist

42

with a view to undergoing some therapy for as long as that expert deems it necessary.

I derive some comfort from DW2's report and evidence that the disturbance in the

accused's psychic equilibrium is not pathological and that it is a non-recurring event. My assessor agrees

J U D G E
8th May, 2000

For Crown : Miss Mokitimi
For Defence : Mr Jefferys