Basutoland Congress Party National Executive Committeeand Another v Qhobela and Another (CIV/APN/410/99)

Case No: 
CIV/APN/410/99
Media Neutral Citation: 
[2000] LSHC 65
Judgment Date: 
26 July, 2000

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CRI/T/48/95

IN THE HIGH COURT OF LESOTHO

In the matter between:

REX

v
TSOTANG PELEA

Judgment

Delivered by the Honourable Mr. Justice T. Monapathi on the 25th day of January 2000

The Accused, who was a member of Royal Lesotho Mounted Police (RLMP), was charged with the murder of Phallang Mosala (deceased). Accused was in the Criminal Investigation Department (CID) Deceased died as alleged from a gun shot wound which was inflicted on the 18th August 1989. The shooting by the Accused which was not denied occurred at Liquor/Restaurant called Le Joint, in Mafeteng town in the district of Mafeteng. Le Joint was about two hundred metres from the Mafeteng police station where the Accused worked at the time in the Criminal Investigation Department. The deceased died on the 21st August 1989 at Queen Elizabeth II Hospital in Maseru.

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The deceased had received a gun shot wound on the chest which did not have an exit wound as also shown in the post mortem report. I was asked to note that this finding by a doctor about the entry wound was to be contrasted with the evidence of PW2 Lisema Mosoeu and PW5 Nthonyana Theko who are said to have suggested that the deceased was facing away from the person who shot him. The report by Dr. Kim dated 27th June 1994 was to the effect that he examined the deceased on the morning of the 19th August 1989 when the patient had been transferred from Mafeteng Hospital to Queen Elizabeth II Hospital on the 18th August 1989. The doctor's report went on to show that treatment was given to the patient as follows:

"Laparatomy was done same morning, and found that raptured transverse colon and ileum and generalized peritonitis due to contaminated by intestinal contents. Repair of colon resection and anastomosis on ileum and acceding colostomy was made.

Post operative condition was not well and died at 6.10pm on 20/08/89."

I noted that that was the treatment done: laparotomy and that an operation was done which unfortunately was not successful. I noted that it was not challenged in evidence that the deceased died on the 21st August 1989 contrary to any reference to the date to the date of the 20th August 1989 as the date on which the deceased died. The main question for decision of this Court would be whether the Accused intended to kill the deceased with legal intention or otherwise. Accused has not denied killing the deceased but has pleaded not guilty and testified that the killing done was in self-defence against an attack by the deceased with a knife..

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It became common cause that that evening the Accused was at Le Joint with his co-worker Andreas Mosifa who became (DW2) where they had been partaking of liquor. The deceased who was retired policeman and former colleague of the Accused had later arrived and joined the Accused. The deceased had been in company of Nthonyana Theko (P.W.6). They had sat at the same table that is deceased and PW6 and Accused and DW2 on the other hand. The time of arrival of PW6 and deceased was disputed. I thought the question of time was not significant in as much as it was not denied that at the material time all had been at Le Joint together.

A record of proceedings of the Preparatory Examination (P.E.) was made available to Court, the defence and the Crown. It was said that this was a second set of proceedings after the first one had completely disappeared. From this last PE whose record was available the following depositions and documents were admitted by the defence and read into the machine and were made part of the record on the 26th August 1998. The post mortem Examination Report, secondly a statement of John Telukhunoana, a ballistics expert. Thirdly a medical report dated the 27th June 1994.

The deposition from the PE record which were admitted were as follows: The testimony of RLMP No. 7218 Trooper Lechesa who was PW2 at the PE. Another testimony of RLMP No. 1529 Lt. Lebusa who was PW3 at the PE. And lastly the testimony of Dr. Kim whose report has been referred to earlier in the judgment. One retired RLMP Sergeant Mosifa who was PW12 at the PE was not called on behalf of the Crown and instead he was called by the defence to testify as DW2.

The following witnesses gave evidence for the Crown. Staff Sergeant Jonas

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(PW1), Lisema Mosoeu (PW2), Captain Chobisa (PW3), Mokoena Sekoala (PW4), Martha Liphoto (PW5) Nthonyane Theko (PW6). Then the Crown closed its case. RLMP No. 3330 Trooper Lephoto who was PW7 at the PE had died prior to this trial. The Accused put in his defence and testified and later called DW2 as I have earlier indicated.

PWS 1, 3, 4 were police officers whose testimony related to the part each played after the event, while the other Crown witnesses were civilians whose individual testimonies related to the events proximate to the shooting of the deceased by the Accused.

The gist of Crown evidence was that Accused shot deceased for no apparent reason and for no justifiable cause. Accused on the other hand, having admitted the shooting, claimed having done so under justifiable circumstances, namely that his life was threatened by the deceased and it was at the time when deceased was lunging at him with an open knife in an apparently stabbing attempt when he shot him. The Crown vehemently denied that the Accused was ever attacked with a knife by the deceased nor that the deceased held a knife against the Accused.

PW 1 testified that at the time of the alleged killing of the deceased by Accused he was stationed at Mohale's Hoek police station in the district of that name. He learned of the incident because he was given instructions to investigate the killing of the deceased who was a former CID member. He was alleged to have been shot at Le Joint. It was following his investigations that he was informed that the Accused was the person who was said to have caused the death of the deceased. The witness said he cautioned the Accused and gave him a charge of the murder of the deceased. The witness said the gun allegedly used was already in the hands of the police and was sent to a ballistics expert before he could handle it.

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PW1 added that as an investigator of the murder of the deceased he completed a docket which he sent to the office of the Director of Public Prosecutions. He was later told that the docket had disappeared at that office. He discovered that there had never in fact been a breaking in into that office contrary to earlier information.

It was correct that under cross-examination, the witness admitted having told the magistrate at the PE that he said he did not discuss anything with the Accused before he charged him. It appeared that the Accused made an explanation about the revolver and the bullets. These the witness handed in at the PE. The witness certainly did not speak about an explanation made by Accused concerning a knife or use of a knife. Incidentally no suggestion was made to this witness about the statement of the Accused that he was attacked with a knife.

The witness further admitted that he did not tell the Court all that he did on the Accused. He replied that he was not led to disclose the explanation that the Accused made. He had cautioned the Accused who said he would not say anything. And he said the matter occurred a long time ago. He consequently had forgotten some of the things. He remembered that Mosifa (DW 2) then a sergeant was one of the investigators. That had been present when the witness first met the Accused. There was lack of agreement which was revealed between Counsel in the cross examination of the witness as to whether Accused was already present when he first met the witness or whether Mosifa was asked to fetch him. I did not consider the latter to be very important. I observed that this witness was an honest witness who did not show any bias.

PW2 who stayed at Ha Ramokhele in Mafeteng knew the Accused and the deceased. He attended at Le Joint on the 18th August 1989. It was in the early

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evening and it was already dark. He was accompanied by PW6. In the Le Joint he found present one Seutloali, Pinkie, the deceased, and the Accused who were sharing a table. There was Malibuseng (PW1 at the PE) and Lephoto who had died before the hearing of this case. (He was PW 7 at the PE) Lephoto was accompanied by his young daughter Martha (PW5). There were several other people at different tables partaking of liquor. Electric lights were on. The deceased and Accused were drinking and having a conversation. The witness had not taken note what the conversation was previously about. He had not been attentive. He then heard deceased say that Accused was a detective. Accused replied to say that deceased was a mineworker.

Deceased then rose up from the table that he and Accused were sharing. It was as if he was going to buy because he went towards the door where there was a counter and a selling point. It was because the door led to the selling point. He had been about six (6) to seven (7) paces when the Accused then followed him. The witness said he saw the Accused pointing a gun in the direction of the deceased. After that he heard the sound of a breaking bottle or glass. It was at about that time when he heard deceased say: "Pelea has shot me." Then the deceased was near the door. At the time he spoke he was looking back and fell backwards that is not face down. He was assisted to a vehicle outside which took him to hospital. The witness ended his testimony by saying he did not see if the deceased was carrying anything at that time and neither did he notice if anything was left on the spot where the deceased had fallen.

The witness was cross-examined by Mr. Nthethe for the Accused. He repeated that he had gone to drink at Le Joint when he met Nthonyana (PW 6) on his way thereto. I later noted a discrepancy that was brought to my attention between the evidence of this witness and that of PW 6. It was that the witness'

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statement that he had gone to Le Joint to drink was in conflict with that of PW 6 who told the Court that (without hesitation) that PW 2 and herself were destined for a discotheque elsewhere not Le Joint.

PW 2 went on to say that the Accused's table was adjacent to the door and that the witness' was about seven (7) paces away from their table. He had not been interested in what the Accused and others at their table were saying but he recalled nonetheless that the deceased had said "you are a detective" whereupon Accused had said "you are a mineworker". The witness had to concede that what he said at the trial was not the same thing as what he said at the P.E. that Accused had in fact said the deceased was a stupid mineworker which was quite derogatory. The witness conceded that he could have forgotten what he had previously said. I agreed with Mr. Lenono the Crown Counsel that, there could unavoidably be discrepancies in those pieces of evidence relating to verbal exchanges between Accused and deceased. This could be attributed to the noisy conditions in the bar. For instance PW 2 said "people were many but were talking loudly but in a happy mood." The witness could have made a mistake by inaccurately stating what the deceased said to the Accused.

The witness was subjected to a gruelling cross-examination by Mr. Nthethe. It was almost on every aspect of the witness' testimony including discrepancies as between the witness' testimony and that of other witnesses and what was said at the P.E. Mr. Nthethe wanted to record the following points, namely: That it was put to the witness that the deceased wanted to stab the Accused with a knife and the witness answered that:

"I did not care to see whether the deceased had a knife or not."

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"I did not care to see what the deceased had in his hands when he went towards the place where beer was sold."

And that:

After deceased fell I did not approach the deceased to see whether he had a knife or not."

It was suggested that this amounted to an absence of a denial that the deceased did have a knife in his hands. I did not take it as an admission.

Another "discrepancy" that was pointed out was that the late Lephoto sat in the same room as the Accused. That this statement the Accused would deny and this would be consistent with what Lephoto had said at the P.E. With these it was submitted that the witness could not be trusted and that his testimony was suspect and therefore unbelievable. I found this not easy to accept. This witness had remained unshaken and true to his version. It was that the deceased was seen moving toward the selling point whereupon Accused was seen looking his direction. He was standing and holding a small gun. At that time the witness did not see anything until he looked up when hearing the sound of the breaking bottle. He saw Accused pointing a gun. He saw the deceased fall and issue out a statement that the Accused had shot him. He did not see the deceased carrying anything. The witness did not see anything that was left there where deceased had fallen. Accused and deceased were about seven (7) paces from each other. Deceased was certainly not moving towards or approaching the Accused. He was going the other way. The witness was a witness to the truth.

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P.W.3 had been Captain Chobisa. He had retired in 1995. He had been stationed at Mafeteng at the time of the alleged killing. He was also Chief of the Criminal Investigation Department at that time. He knew Accused as former co-worker, the witness having been the senior officer. He knew that the Accused had been issued with ammunition and a .38 special revolver. He remembered that one evening he got a report when he was already at home. It was about the Accused. On the following morning he was shown the Accused's revolver and three (3) live bullets. These bullets and the gun were sent for testing by a ballistic expert on the following morning. The gun which was exhibited was shown to him. He recognized it. The witness said he met the Accused on the following day when he reported to the witness about the incident at Le Joint. The witness himself communicated the Accused's report to the commanding officer and other senior officers at the station.

The cross examination by Mr. Nthethe involved the question whether the witness had issued an identifying mark for the gun, the entry of the particulars of the gun in the register and how and by whom it was sent to the expert. All the questions were answered by the witness. He had not himself issued an identifying mark. The register was kept by someone else and the gun was sent to the expect by a certain Rapeane.

I did not understand the reason that could have led the witness who was an officer of a fairly high rank to have denied having given evidence at the P.E. stage of the case the P.E. The record clearly showed that the Captain did give evidence as P.W.14. It appeared on page 15 of the P.E. record.

I could record that the evidence was merely formal and uneventful except the blemish about witness' denial of having testified at the P.E. I did not accept that the

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evidence lacked the required cogency nor that it did not advance the "Crown's case on iota and should be discredited on the grounds of unreliability." I noted that the evidence did not certainly touch on either version. Nor did it especially touch on Accused's defence which was contained in the the suggestion about the knife allegedly having been possessed or used by the deceased who tried to stab the Accused therewith when then the latter fired at the deceased.

P.W.4 was Mokuena Sekoala who was a former member of the police force in the uniformed branch in Mafeteng where he had been Second Lieutenant. He knew the Accused well. He said one night during the month of August the Accused came to him and gave a report about the deceased (Mosala). He said he had quarrelled with the deceased who attacked him. Accused handed the witness a .38 revolver after having unloaded it of three (3) live bullets. He identified the gun which was exhibited. The Accused had reportedly not known where the shell of the spent bullet fell. The gun had remained in the witness possession until he duly handed it over to P.W.3 who was Accused's superior. He had recorded all the important things in the occurrence book which entries he showed the Court in the book. The gun and the bullets were duly labelled by one Mpopo who was not called by the Crown.

This witness was cross-examined for an unduly long period. It was over the issues of the nature of the explanation given to him by the Accused when they first met that is, when Accused reported about the incident. This witness was being blamed (for absence of a better word) for having just said at the P.E. about the Accused after he handed over the gun:

"He made an explanation which I did not understand."

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This was being contrasted to what the witness said in his evidence- in- chief. The witness did not admit however that the Accused actually told him that he acted in self defence as deceased was stabbing him with a knife. The witness said he did not find out why the Accused shot the deceased. It meant that the witness did not find out more of an explanation from the Accused. Most unfortunately the witness said he did not find it necessary to do that. At one time elsewhere he said he had not been led by the prosecutor to say what the Accused's explanation had been. He said he had no good reason for failing to do so. The Accused had not denied that he handed over bullets and a gun. It did not mean much therefore that the witness was not able to identify the bullets that were exhibited.

I felt however that some of the questions should have been more intelligently answered. I did however not find the witness unreliable in any way. The matter of the ambiguity, about the explanation given by the Accused did not amount to an accusation by the Accused that he gave the witness a certain report which the witness did not disclose. Indeed the witness in his evidence- in- chief stated that the Accused reported that he had quarrelled with the deceased. It was not suggested that the witness had the full story which he had failed to disclose nor that there was a motive for hiding anything.

I formed an impression that the witness could only have been blamed for naivete but certainly not for dishonesty. I believed this witness that the Accused had reported that he had quarrelled with the deceased and had shot him and did not go further to allege that the deceased had wielded any knife and sought to attack the Accused.

PW 5 Martha Lephoto was ten years old in August 1989 at the time of the events subject of the charge against the Accused. Her father, since deceased, was

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PW 7 at the PE. He had been a policeman. That is why the witness knew both the deceased and the Accused who were also policemen then. The deceased then stayed at the police barracks with his wife and family. She knew that at the time of the incident the deceased was then working in the mines and was no longer a police officer as the witness had been told. She had seen the deceased earlier in the day on the 18th August 1989.

The witness said she accompanied her father, to whom she was very close, to the bus stop. His father had intended to go to Roma, but then decided to go to Le Joint. There they found the deceased present. Her father and other sat at the table, which they shared. They started to partake beer which came in quart containers. It was later that the deceased arrived. He was alone. The deceased then came to their table and hurled abuse at the Accused. These were to the effect that "he will castrate the deceased." The deceased replied and said the Accused "will castrate his own mother." The witness had not before then heard any exchange of words from the deceased and Accused.

This witness testified under cross-examination that the deceased had in fact never sat down at the table. I took the view that the witness was not very sure that there had not been prior exchange of words before the swear words. This was more so after she was taxed with her own statement that there had been prior exchange of words.

After this exchange of words deceased according to the witness had strayed from the table to the counter and after a moment he came back. He was at the table for a considerable time. The witness was not able to estimate the time as between the exchange of words and when the Accused had come back to their table. The witness had remained seated and drinking a soft drink. Deceased went

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towards the counter. Accused followed him. When he was about 7 paces from him he took out a gun from his waist and shot at the deceased. Deceased retreated and fell on his back. She did not see whether the deceased had anything in his hands when he fell. Accused did not say anything. He then went back through the door to the outside. The witness said she recalled very well that she heard deceased say that he was shot by Pelea (Accused). The witness then saw her father and other men go to assist the deceased.

The visibility in the room was good. There was an electric light on. The witness did not see any weapon except the gun that was carried by the Accused. It was a small gun. She identified the gun which was exhibited. She said it was like the one her father kept at her home. The deceased did not have anything in his hands when he was moving towards the counter. Deceased had after falling been carried to a vehicle outside.

This witness was subjected to a searching cross-examination by Mr. Nthethe. The witness was able to explain that at the time of the events she was ten (10) years old. She had stated that she was thirteen (13) years at the time she gave evidence before the magistrate and on one occasion when she had been recalled before the magistrate after disappearance of her statement. She testified that her father could not have been correct (at the P.E.) when he said that he had been seated in a different room (later called Bar 1) into which room the witness was said to have come running from the other room (later called Bar 2). She reiterated that she had been in the same room (Bar 2) with her father. The significance of this can be seen from what Mr. Lephoto said in his deposition at the PE at page 10.

"Accused and deceased were in the same room while I was in the other while I then heard a report of the gun in the other room. I

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rushed there, I met my daughter who was running into the room in which I was."

The witness did not concede that her father was in a different room, that is not sharing a table with deceased and others. As I ultimately concluded a discrepancy, if there was one, could only be that the witness' father was in another room. But it could certainly not therefore be that the witness could be faulted in what she observed or her version at all. This remained so, much as she was taxed on this aspect.

In the same way as the confusion about the exchange of words the witness did not recall seeing some of the people who were in that room. Alternatively she did not know some of them. Take for example Seutloali, Nthonyana Theko (PW6) Jonas (PW 1), Mosifa (DW 2) and Sekoala (PW 4). She admitted she could have seen some of them. She was cross examined further.

The witness herself was 7 paces from the deceased at the time of shooting. Nothing could have obstructed her. She was not aware of the part of the body where deceased was shot. She understood the way the doctor described the injury vis-a-vis entry wound. She insisted that the deceased had been facing the Accused when the shooting occurred. She agreed that it could have been at the back. She however did not see deceased turning backward or round. A long story was put to the witness which was said to be the version of the Accused to which the witness responded to say "I do not say anything to the story." Counsel for the Accused did not suggest in anyway that the witness had admitted the version. In the way the story was put it could surely not have been expected that the witness would reply usably without embarrassment and with ability to respond to every aspect. The Accused's story was said to be:

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"That evening he got to Le Joint at about 8.00 accompanied by Mosifa (DW 2). They occupied a table and were later joined by two women namely Maseabata and Malibuso. They started drinking bear. They were later joined by the deceased who stayed for a short while and then left. Deceased subsequently came back accompanied by a man the Accused did not know. The deceased introduced this man to the Accused: "These are CIDs." The man said he had not known that. He went further. "These are unsophisticated informers of CIDs (Ke meqhaka ea limpimpi tsa ma CID). Accused reacted and said "How can you say that and yet you know. Could it be you who says this and yet you know." It was thereupon that the deceased reacted furiously and said: "I shall remove this remaining testicle." Accused then warned Mosifa that they should go now that the deceased has turned out to be that way. Accused said to Mosifa that he knew that the deceased had a tendency to attack people unaware or by stealth. Mosifa stood up instantly and followed the Accused. Mosifa went in front and the Accused was following him. The deceased there charged at the Accused wielding a knife and was just about to stab Accused. Thereupon Accused pulled out a gun and shot in the general direction of the deceased. That is why the Accused shot the deceased at the front. This caused the deceased to retreat. Accused then became free."

It is this story which the witness said he did not say anything to. It was in response to this kind of a question that Mr. Lenono was about to re-examine clarifying some aspects in the above statement when Mr. Nthethe objected. The objection was that the Crown could not clarify over things which were not raised in the cross examination I overruled the objection. The questions by Mr. Nthethe had been

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globular and had not raised separate issues to enable the witness to respond point by point. In the resulting re-examination by Mr. Lenono the witness reverted to and reiterated every aspect of her version which was quite consistent with what she said in her evidence- in- chief.

The witness went on and admitted that it could be a mistake that she said she did not know Mosifa (DW 2) it could rather be that she did not recall how long she know him. The witness was adamant that according to her the Accused never quite sat down at the table despite that this was not in agreement with what other witnesses said even at the PE stage for example PW 10 Makhojane Mahase. One discrepancy that was pointed out was that the witness did not speak about the witness nor that they saw her. The witness replied that if they had known her they would have referred to having seen her. The examples quoted (of those who did not refer to the witness) were Mathabo Seboko and Malebuso.

The witness reiterated that she heard certain swear words. It is possible that more could have been said that she did not hear such as those suggested in the Accused's statement referred to earlier elsewhere in this judgment. For instance words including swear words which were said to have been uttered by the deceased by one Seutloali namely that deceased had said: "Let me buy you a beer I have got a lot of money." And a statement attributed to either Seutloali or Suping who is reported to have said that deceased said "Can you kill me having bought you beer."

I resorted to the submission by Crown Counsel that in the conditions prevailing in that drinking place some words allegedly uttered by deceased could have been missed in the same way as those allegedly uttered by the Accused. It was in the similar vein that the witness could only say that she would not deny that the words about "testicles" were uttered. Malebuso was reported to have said that she

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heard the word testicles uttered when she entered the toilet. As I observed it was unrealistic to expect the witnesses to have heard every word uttered. Nor could it even be fair to suspect that she was untruthful if she could have made a mistake of not being able to recall all words in fact spoken.

It was put to the witness that the Accused then decided to leave after words suggesting that he was unsophisticated and that he had one of his male organs missing. The witness did not admit having heard those swear words come from the deceased or at all. She however was adamant that she was at that table despite denial or absence of mention by other witnesses that she was present thereat. I considered it reasonable to accept the version of the witness as a true one. She was an eye witness.

I detected no motive on the part of the witness to lie on any aspect. None contained contradictions but disagreements or discrepancies on minor issues. The witness was not disturbed by the cross examination. It could have been that the witness was in a different room from which her father was. It could have been that the Accused did sit down at the table as other witnesses suggested. The point made that, since other witnesses did not mention seeing her and that she does not recall other witnesses, she was then an untruthful witness. This ignored the fact that her presence was mentioned by her father. Others also did.

Another point was made. It was that if the Accused was following after the deceased then the deceased must have been shot from the back. This she conceded. If this is the case the Accused ought to explain why the deceased (who was allegedly attacking him face to face) was shot at the back. This is more so if capital is made by the defence that the witness conceded that deceased was never looking back and that if he ever did the witness could have noticed him. Counsel argued that the

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notion should be compared with the postmortem examination report which stipulates that an open wound was through the chest. It was submitted that it was clear that if the witness stuck to her guns she disputed the finding of the examining doctor. It was suggested that it was significant there was no exit wound. I felt that the doctor would surely have answered to this if he had been available. I have already indicated how I viewed this witness' testimony. It was that, except for minor discrepancies, it was highly reliable.

Nthonyana Theko who became PW 6 was a woman of 39 years at the time she testified before this Court. She had known the deceased while the witness was still staying at Mafeteng. She had left Mafeteng in 1994. When she last saw the deceased they were at Le Joint. She had, before attending at Le Joint, asked her neighbour Lisema (PW 2) to accompany her to a discotheque. It was at about 7.30 p.m. when they went via Le Joint. I noted that PW 2 had said that he met the witness on the way and that they got to Le Joint between 8.00 and 9.00 pm. PW 2 had not mentioned a discotheque as their destination. She remembers having (found Mathabo, Seutloali and one Thinyane amongst others at Le Joint.

Near the table at which the witness sat was the one at which the Accused, the deceased and Martha (PW 5 ). Keketso, Malibuso and Maseabata sat. Defence Counsel called my attention to the contrast with the testimony of Lephoto at PE stage and that of Martha (PW 5) who adamantly told the Court that the Accused did not sit at their table but just came next to it. She forgot others that were also there. There was good visibility due to an electric lamp. There was drinking of beer. The mood was noisy and cheerful. Most were happy to see her and made welcoming calls. She suddenly heard a noise as if it was breaking of a glass and she looked back in the direction where the sound came from. It was in the direction the Accused's table. She said she turned back because their table was next to the wall.

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After turning back she saw the deceased near the wall having removed from their table. She had before that sound of a glass breaking heard the deceased say to the Accused "You are a detective man." After that their conversation had continued. She remembered that after that she had seen the deceased go past her at the back. She had even touched her. The witness said she heard the Accused say "Don't say I am a detective." It was after that when she saw the Accused standing next to a wall and holding a gun and pointing towards in a way she demonstrated. At about the same time she saw the deceased near the door leading to the counter.

She had been looking the other way (away from the deceased) at the time she heard the sound of a glass breaking. The distance between the deceased and the Accused had could been about eight paces. She had paced to estimate. While the deceased was still standing he said: "Why do you shoot me man?" Accused did not reply. The deceased then fell on his back (face up). In the process of doing so he even touched the witness with his foot. Then the Accused was seen going out through the door. He had not said anything. There was a short silence after the sound. Some people then rushed to the deceased to help him.

A vehicle had later arrived. Deceased was carried out through the door. When asked if the deceased carried anything when uttered the words about someone having shot him the witness replied that the deceased had not been carrying anything. The witness had been in Lejoint for about an hour. She was however not able to judge if the Accused or the deceased had been drunk.

The witness was put to a most labourious type of cross examination by Mr. Nthethe. It was not far from the truth that she even shed tears. It was never in doubt that only on a few things the witness vacillated. One example was this that

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was put to her that Lisema (PW 2) said he met her on the way which she could not give a clear answer. What was important was that it had become common cause that both the witness and Lisema (PW 2) eventually got to Le Joint where they were together. Furthermore that (as was suggested) they got to Le Joint at between 8.00 pm and 9.00 pm while the witness said it was around 7.00 pm. I formed an opinion that (as it is normal) witnesses will not estimate time and space in the same way. Some can even be absurd. Therefore the kind of discrepancies cannot be elevated to contradictions. Even then, if there be such contradictions, it will always be important to determine how serious they are or whether or not they discredit the witness's testimony as to the truth of her observations.

It was correct that a rough sketch "Exhibit "A" which was handed by Defence Counsel caused the witness to entirely change some of the points thereon. It was as to where her table was positioned as to where the deceased fell. I did not conclude that it was because her testimony was untruthful. The rough sketch had been very useful to the Court in illustrating some of the salient physical features of the inside of Le Joint. The way the rough sketch was drawn the major features were as follows:

There are two bars or drinking spaces adjacent to each other and divided by a wall. One is on the east and the other on the west. Bar 1 is one the east and Bar 2 on the west. There is a main road (Main South 1) on the south travelling from Maseru direction on the North East towards Mohale's Hoek on the South West. There is one exit/entrance on the south into/from the main road which leads into Bar 1. There is one exit/entrance on the north and an exit door towards Jandrells door. There is a door leading from Bar 1 to Bar 2. On entry from Bar 1 one approaches to counter (selling point) which is next to that door way the counter is on the side of Bar 2 on the East of Bar 2 and on the West of Bar 1. To the counter

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one has to go through a door to gain access. From Bar 1 one has to go through an entry door through a dividing wall.

These points have been marked in Bar 2 one namely X1, X2 and X3. As will be clear from the sketch X3 is near the counter X2 is farther inside from the counter and X1 is near the wall diving the two bars. It was about the position of X2 the table that the witness was said to have conceded that it was near the counter not towards the inside as she had first steadfastly pleaded. Otherwise the points remained established in this manner X1 was where the Accused was seen and this was near the exit door X3 was nearer where the deceased fell. It is noted that it is nearer the door leading into the counter space to which the deceased was proceeding, where he fell. The Accused was able to go through the door facing Jandrells which is near X1 and far from X3 nearer where the deceased fell. The witness could not agree that it was exactly at the point where the deceased fell but it was near her at X2 but on the side of X3 viz. entry to the counter.

The witness was taxed on the estimate to the different distances. It was in making concessions more especially as to where her table was that she was said to have gone to pillar to post by defence Counsel. Meaning that she was unreliable. I did not see it that way. The witness however admits that she did not see the Accused shoot the deceased. Indeed she did not seem to know as much as others about the circumstances which attended to the shooting prior to the breaking of glass. It was common cause that the sound of breaking glass signified the report of the gun. Indeed the witness was taxed over an aspect of someone having urged ail to keep silent after the shooting and so on which was quite not consistent with what the witness had said at the P.E. stage. This was inconsequential.

The witness was correctly recorded as having said that the Accused stood

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against the wail. She later said the Accused was standing near the wall. She was led to admit that she originally said the Accused was leaning against the wall. Whether she could be disbelieved on her part on one account and not the other it remained a failure to estimate the exact position of the deceased. But the general direction or position of the Accused remained that of near the wall towards the door leading to Jandrells store. Why could she be disbelieved completely and what would be the effect? There was none as long as she was not moved that the Accused was near the north entry when the deceased had been moving towards the opposite direction. I concluded that there was nothing really that discredited the witness as a witness to the truth. She withstood searching cross-examination. She was instead revealed as an honest witness. Her tendency to want to be exact more especially when attracted towards points on the rough sketch resulted in longer cross examination whose result was minor variations and certainly not contradictions of any kind.

The Crown closed its evidence. The Accused put in his own defence. He said that on the 18th August 1989 he was still an officer of the police service in the Criminal Investigation Department. On the evening of that date they had been at Le Joint at around 8.00 in the evening. He said they were in Bar 2 that is the room that has an entry/exit facing Jandrells wherein he sat. He was in the company of Mosifa (DW 2).

They found two ladies Maseabata and Malibuso at one table where they joined them. There they bought and shared beer. They were joined by Phallang Mosala (deceased) an ex police officer. They drank together. He remembered that DW 2 had gone at one time off to buy some beer. When he came back he asked the deceased why he had drunk someone's beer (in the other bar) without his consent. Deceased replied to say that DW 2 was not supposed to ask him such a

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question. The witness said he asked deceased why he could not answer DW 2. He kept quite. They continued to enjoy their beers.

Deceased left the table and went to the other bar. He came back after a while. He was in company of another man whose name the Accused did not know. Deceased pointed at the Accused and asked the man: "Do you know this unsophisticated fellow? (U tseba moqhaka oo?) The man answered that he did not know me. The deceased proceeded and said: "They are some of the unsophisticated police detectives. (Ke emeng ea meqhaka ea mafokisi). The Accused said to the deceased that he was doing something that he knew he should not do that is, reveal the identity of Criminal Investigation Officers. The deceased is reported to have answered: "Who are you, you without testicles. I will remove the other one." Accused said he urged DW 2 that they must immediately go because he knew that when deceased was in that mood he would get into a fight or assault one without notice. Accused stood up. DW 2 proceeded toward the door to Bar 2 to the door on the north. The witness was going behind DW 2.

The witness said he had not gone any far from his table when the deceased charged at him with a knife in his right hand. He said he took out his gun and shot in the general direction and the deceased retreated. He then went out of the bar straight to the charge office. Deceased was still on his feet when the Accused left. He had not uttered a word.

At the charge office he found W/O Sekoala (PW 4) and other police officers. He reported the incident in the same way as he had done. Sekoala hastily sent him off saying he must go and report to his CID superiors. He had just gone out of the gate when Sekoala called him back and asked him where the gun was. He took out the gun and handed it over to Sekoala to take for safe-keeping until the following

24

day. He went back later to look for Capt. Chobisa who was in charge of the CID but did not find him. He then went to his home and slept until the following day.

On the following day Capt. Chobisa came to his house and sought for an explanation. The Accused had intended to attend at work at about 10.30 a.m. Then Sgt Mosifa (DW 2) came and told the witness that he had been sent by Captain Mokhohlane. He intended to follow DW2 but went later. Then he met Captain Mokhohlane who was with Captain Chobisa (PW 3) and another. He was instructed by Capt Mokhohlane to wait. It had not been clear whether it was the witness who was asked to carry on with his own work or the person on whom the Accused attended. In any event Capt. Mokhohlane asked the Accused whether he knew where the man he had shot was. He was then told he had passed away. But he (the witness) was charged assault with intention to do grievous bodily harm. He was released from work and ordered to report on the following day. At that time he was with DW 2 with whom he consulted or sought advise about what he should do. I noted that at that time it had not been clear that DW 2 was playing any role except that of a close colleague or co-worker of Accused.

On the following day the Accused was finger-printed and told to report at work on the next day. On the 24th August 1989 which must have been that "day following" Accused was taken for formal remand at the magistrate's Court. Thereupon he was released on his own recognisance. After two or three days DW 2 came to Accused and told him that the magistrate wanted to see him. He duly attended at the magistrate court whereupon he was remanded on a charge of murder of the deceased who had already passed away. The Accused was taken into custody. He was then transferred to Mohale's Hoek prison. He was later released on bail after an application before the High Court.

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Accused denied that he intended to kill the deceased in cold blood. He said it was the deceased who charged at him. Deceased was too close when he shot him. He only shot in the ground direction of where the deceased was. He denied the suggestion that at the time of the shooting the deceased had been moving towards the counter and that it was the Accused who left his table and followed deceased who he shot. He was shown the rough sketch and was shown the three points, where PW 6 had allegedly sat and where the deceased had fallen and where he Accused was allegedly positioned at the time of the shooting near the wall. These he did not accept as truthful or accurate. Accused denied however having seen Lisema (PW 2). He admitted that Martha (PW 5) had been there with her father.

That version of the deceased elicited a brief kind of cross examination by Mr. Lenono as it should have. I presumed it had to do with the large area of facts already covered and agreed on including the admission by the Accused that he shot the fatal bullet. What would remain would be whether in law he shot in self defence and whether the facts indicated so. Accused was with the deceased and others at Le Joint. He admitted that insulting words were uttered by the deceased about his testicles. Accused said he still had both his testicles. When asked how he took the insulting words he said he was not happy but he did not wish to fight. He said despite the swear words he would have still wanted to leave because of the anger. He reiterated that it was the deceased who followed him and Mosifa (DW 2) when they were going towards the door on the side of Jandrells.

When cross examined further he admitted that by the general direction at which he shot it was at the place where the deceased was positioned. Then the deceased staggered back on to the wall against which he leant. The Accused then went away. At that time it was showing that the deceased had been hit. He did not know the part of the body at which he was hit. But he agreed that it could be above

26

the waist.

The Accused spoke of the way the Accused had held his knife which he demonstrated. This was the way close to the waist but not raised up. But it was in such a way that the blade was exposed when he deceased had ben about a pace away from the Accused. He denied that Accused could have been eight paces away from the witness when he was shot. He said the deceased was so close to him that he could not even have time to fire a warning shot. He had had no way other than to have warded off deceased's attack by shooting at him. In reply to the Gentleman Assessor's question he said the deceased could have been four paces at , the time of he shot.

Accused did not shout out in order to raise alarm nor did he exclaim in any way about the alleged attack on him. He did not remember that he told Mosifa (DW2) about the aspect of the knife after the day of the incident. He denied that there could have not been any object found near where the deceased's body was after he fell except blood. He said a knife should have been found there. Mosifa (DW 2) had said he saw the knife there. He said so on the following day. Accused was confronted with the suggestion that Lechesa had not said he saw the knife either. He had only seen blood on the floor. He said it must have been a mistake.

I found this Accused a highly intelligent man who testified in Court in good English. I however found it difficult to understand why the Accused took the position that he was not severely provoked by the deceased. Why did he persist to say that, in the face of insulting words, swearwords directed at him which were put in different versions, he was not provoked but just went away as he said he ultimately decided, because he knew how the deceased would later behave? That there was swear words were exchanged and mainly directed at the Accused there

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was overwhelming evidence. That is why I concluded that it was only through naievete that the Accused pretended before Court that he could not have been provoked at all. He had admittedly had a few drinks although not drunk. That he could have been a little drunk could not be completely ruled out although the Accused seemed to assert the opposite.

The Accused said he decided to leave because he knew that the deceased was the kind of person who would attack by stealth. That may have been so only to the extent of the mood at which the deceased may have been due to drunkness or other causes. Mind you the deceased was said to have been warned or questioned as to why he had taken one man's drink from the other bar. I say that it may have been that the Accused was a good judge of the mood at which the deceased was as it appears they knew each other well as former colleagues. The deceased may well have been on the verge of making out an attack. But the evidence was overwhelming that the deceased did not attack the Accused and the deceased had in fact been on his way towards the counter when he was shot at by the Accused.

The Accused did not suggest a motive why most of the witnesses except Mosifa (DW 2) did actually see the Accused shoot at the deceased. Or alternatively why most witnesses (except DW 2) described circumstances suggesting that it was the Accused who attacked the deceased by shooting at him not in any self-defence of any kind. Again it was not suggested why no other witnesses ever suggested seeing the deceased wielding a knife in attack nor seeing the knife except DW 2 who said he saw a knife lying next to where the deceased had fallen. I concluded that the Accused version could not be believed and it was false beyond a reasonable doubt.

The evidence was overwhelming that the deceased had walked towards the

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counter and the evidence went on to suggest that the Accused stood up and pointed a firearm in the direction of the deceased and fired whereupon the deceased fell down. After so firing the deceased left through the door on the north. In answer to one Gentlemen Assessor the Accused said that he "did not want to shoot in the air but pointed the gun at him."

The deceased fell near the door leading into the counter or sales point. One witness said the Accused was said to have stood near or leaned against the wall closer to the door on the north, this is the door he used after shooting. It was against all probabilities that the deceased could fall near the space leading to the counter if he was charging against the Accused who had been near the north door which was diagonally on the opposite side with a considerable distance in between. See points X3 and X1 on the rough sketch. The story of the retreating by the deceased advanced by the deceased was far fetched. The distance between the two points suggested that even if the deceased had wielded the knife (which is not to be believed) the Accused had a way of avoiding the attack by running away or firing a warning shot but certainly not the instant shooting which was definitely not in response to an attack from the deceased. The Accused version cannot be believed. It was most probable that following the provocation by the deceased the Accused made up his mind to shoot the deceased in an open attack as the Crown's credible evidence indicated. The attack by the Accused could not have been in self-defence. His story was palpably false beyond a reasonable doubt.

DW 2 Andreas Mosifa testified in defence of the Accused. As said before he had been PW 12 at the PE stage but had not before this Court been called for the Crown. He had been subpoenaed. He did not know why the Crown did not ask for his testimony. DW 2 said he was now living in Quthing, after having retired, at this time he was called to testify before this Court. He was not employed.

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The witness knew both the Accused and the deceased well. He had worked with both of them in Mafeteng at different times. At the material time the deceased was no longer a policeman. The witness remembered the events of the day of the 18th August 1989 when Mosala (deceased) met his death. He was at Le Joint on that day and there he was with Accused, deceased, another gentlemen and two ladies. They had been drinking together. And it was at or about 8.00 in the early evening. He had been from his home to his office but had just gone via Le Joint.

He acknowledged that Le Joint has two drinking bars. There is one whose entry was on the South from the highway to Mohale's Hoek. There was another exit into the space leading to Jandrells shop. He also saw one Liphoto who had since died. He was in another bar (Bar 1). The witness knew Martha (PW5) since when she was very young in Qacha's Nek, where the witness had worked. Martha was in Bar 2 with the witness.

The witness had had occasion to visit the other bar. It was there where he learned from another man that the deceased had taken his drink without his permission. The witness thereupon asked the deceased about this allegation. To this the deceased did not give a reply. It was a little later that the deceased asked one man if he knew "these detectives informers". He was referring to the witness and the Accused. The Accused then responded:

"Is it you of all who can say this in the presence of people?" Then the deceased is said to have responded:

"Are you here you who has no testicles? I will stab you and take off the other one."

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'The Accused then immediately asked the witness that they must leave. They stood up to go and had just passed the deceased when he heard gun shot. When he moved back he saw deceased had fallen down. He said he did not see the Accused at that time that he concentrated on assisting the deceased. It was then that a word was heard calling out loudly that the deceased should be left where he was. The witness did not say that it was the same voice that had called out to all those in the bar to remain where they were.

Where the deceased lied he had fallen his face upwards. There was a wound on the chest. There was blood on the chest. One Lechesa (PW 2 at the PE) also came. Lechesa had been the witness' junior officer at work. It was after looking over the fallen deceased that the witness got an opportunity to look for a vehicle to carry off the deceased. The witness said before he went there was something that he had noticed. It was a brown Okapi knife. The knife was in the hand of the deceased. He took the knife and instructed Lechesa to take possession of the knife, as part of his duty. A vehicle was procured. Deceased was taken on a vehicle by the witness and Lechesa. He was still alive. He was left at Mafeteng Hospital. The deceased had been groaning but still alive. The witness thereafter went to his office at the police station.

The witness later accompanied the deceased to Maseru Queen Elizabeth II Hospital to which he was transferred. He was still alive and had not sustained any further injuries. He passed away a few days later, on or around the following Wednesday. The witness said he asked Lechesa where the knife was. His answer was that he had not known what he did with the knife. In his evidence in chief the witness was asked why he had not spoken about a knife to the prosecutor at the P.E. stage. He said he was prevented from talking about the knife by the prosecutor. The witness said he had intended to refer to the knife. I found this hard to believe

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unless the prosecutor could have been said to have had a motive. None was suggested.

Under cross examination the witness said that he knew that the deceased died at another hospital but not in Mafeteng. Deceased had not replied when asked why he drunk another person's beer. He did not reply. When referred to any swear­words that the Accused could have made towards the witness denied that there could have been any except those he had spelt out. These could have been drowned by the noise in the bar. There was also a group of card players in the bar adding to the noise. Other people could have or could not have heard any exchange of swear words. Those who were listening would have heard the words. He would however not confirm anything about words he did not hear himself..

The witness was asked as to why he only referred to the incident of the knife after he said he went to the hospital with the deceased. He said he was still going to speak about it. Even at the P.E. stage he had not spoken about the knife. He said at the Charge Office he made a statement. It was not a written one. He was referred to the statement that Lechesa did either not also speak about the knife at the P.E. stage. He was also surprised that he did not do. The witness could not offer any other explanation. He said he was the one who showed Lechesa the knife and instructed him to retain the knife. In reply to one Gentleman Assessor's question he agreed did not make note the knife in the occurrence book. He did say however that he recorded this in his note book which he had left at home just when he was coming to Court. He said he was sure that the knife should have been seen by people who attended on the deceased. Lechesa was one of those people.

Following on that line of questioning by one Gentleman Assessor about the knife I ordered the witness to bring the notebook on the next day when the Court

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resumed. He had assured the Court that he had not only known it to be in his household but he had seen it even at around the time when he was preparing to come to Court but had forgotten it. I was not certain if he said he saw it on one of the days when he had come to Court or on the very same day when he was in the witness box. When he next came into the witness box he reported that the notebook was nowhere to be found.

A clear impression was created by the witness that he would not be forthcoming and he intended to protect the Accused. He had been one of the investigating officers. He was the Accused's senior at work. He failed to follow on to inquire about the whereabouts of the knife if ever there was one. If he did it was not convincing. He had no written statement that referred to the knife. He did not speak about the knife even at the P.E. for that flimsy reason about the prosecutor's attitude.

Then about the note book I concluded that the witness could not have promised that he would fetch the notebook if it did not exist. He had been so positive. The probability was that the notebook was found but it did not contain what he thought was favourable to his prior testimony or what was alleged to have been its contents. Mr. Mosifa was a dishonestly unreliable witness who survived on poor reasoning throughout his testimony given the responsibility that he had had. He lied to protect the Accused.

I have already spoken about the improbability that the Accused could have been a pace or two or even four from the deceased at the time of the shooting. PW 2 said deceased walked about seven paces and stood at the entrance into the other side of the counter. PW 5 said the deceased stood up and went to the counter seven paces off when the Accused followed him. PW6 said from the moment deceased

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stood it could be about eight paces (which were paced off). I did not find that the witnesses had any motive for fabricating. In none of the witnesses of the Crown and police officers had the Accused made a suggestion that he shot in response to an attack of a knife from the deceased. For what good reason would about six witnesses eschew reference to the aspect of the knife which thing was favourable to the Accused? The Crown referred to the following to show that the scenario pointed by the defence could be nothing else but intriguing.

Pw 2 said he did not the deceased carrying anything. At the time he was removed from the where he had fallen the witness had not noticed anything which was left there. PW 5 on being told of the Accused's version that he had no alternative faced with an attack with a knife, he pulled out a gun and shot in the general direction of the deceased causing injury on the deceased on the front. She replied:

I have no comment because I never saw deceased holding a knife."

PW 6 said he observed nothing from the spot where deceased fell besides his blood and that:

"Deceased was not carrying anything when he was shot."

As I remarked much earlier in the judgment the Accused never disclosed to his superiors the matter of the alleged attack upon him by deceased with a knife. In addition and most specifically I did not record that even as to PW 3 there was disclosure by Accused of the alleged attack upon him with a knife by the deceased. As to PW 4 it was merely reported by Accused that they had quarrelled with the deceased and shot him. He never alleged that the deceased had been wielding a

34

knife in an attack upon him.

The following summary of the reasons behind the Crown's submission negated the Accused story of the deceased having lunged at him with an open knife. It led me to an irresistible conclusion that the Accused's story was fanciful, improbable and an incredible pigmentation of the Accused's own imagination. In consequence I formed an opinion that the proposed defence of self-defence did not hold water.

Firstly, when the Accused shot the deceased he was at least seven paces away from him and so close that a knife wielding hand was descending on him. Secondly if that knife existed was so big and clearly visible to all as he said everybody in the house other than Mosifa could have seen it. Thirdly Accused did not seize the knife after thwacking the imminent danger it posed to his life. Otherwise there should have been a demonstrable way in which the Accused should have reacted during investigations to show that the knife had a place in these investigations or his defence. Thirdly after deceased had fallen no one saw the knife near him or in his hand. On the contrary witnesses were vehement that the deceased was not carrying anything when he was shot. I have already commented about the evidence of Mosifa (DW 2) which I concluded was untruthful in this respect. Fourthly, Accused never utter single cry or noise in alarm or by way of remarking when he saw that the deceased was about to stab him with a knife. This he admitted under cross examination. Sixthly, the Accused had not told a single one of his superiors or colleagues the reason why he shot deceased after the incident except that they had quarrelled as he briefly reported to one of them.

The facts of the case showed that there could not have been any legal intoxication nor serious drunkness that led to the attack by the Accused on the

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deceased. He was not acting in self- defence. As was submitted by the Crown and as I did conclude when the evidence was viewed in its totality, Crown witnesses had been truthful, frank and objective while accused and his witness had been discredited as having lied on major issues touching on the proposed defence. For example for DW 2, a senior policeman to have suggested to the Court that he was prevented at the P.E. by the public prosecutor from disclosing the full facts of the knife bordered on the ludicrous. It was correctly defined as a show piece of bias, dishonesty and untruthfulness by the Crown.

I did not see how, from the totality of the evidence given, Accused could even be entitled to any benefit of doubt nor how his story might reasonably possibly be true. I was referred to S v JAFFER 1988(2) SA 84 to show that the Accused had in that regard nothing to prove. That furthermore the Court was not entitled to convict merely because the Accused story was improbable. The Court must be satisfied not only that it was improbable but that beyond any doubt it was false. See R v DIFFORD 1937 AD at 389-90, R v MONYAKO CRI/T/7/75 at p.6. On the benefit of doubt it was said in R v MLAMBO 1957 (4) SA 728 at 738 that:

"An accused's claim to the benefit of doubt may be said to exist or not must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which arc not in conflict with or out weighed by the proved facts of the case."

The facts of the case have overwhelmingly excluded any benefit of doubt. Barring for minor discrepancies I did not think it entitled the Court to accept a version of the Accused which was false beyond a reasonable doubt. It followed therefore that I did not agree that the Crown had failed to prove its case beyond a reasonable

36

doubt. Neither did I agree that it had failed to establish the guilt of the Accused. The instant case was certainly not a case where witnesses were so "shamefully shattered beyond redemption" under cross examination. Nor nowhere it mattered not what lies the Accused told because the Crown case "had not been advanced an iota." See MONYAKO'S case. There was nothing hearing that Secondly, I could not accept that the witnesses for the Crown were most unimpressive in the witness box. That they were evasive and downright stubborn and refused to answer questions. Neither would they be described as having pretended to be of stupid. I was referred by defence Counsel in that regard to R v MALEFETSANE BELEME (CRI/T/14/90 page 5. I would not compare this description (of pretending to be stupid) to PW 6 despite the cross examination that she went through which was described as gruelling.

I have already made a finding on the facts that it cannot be said that the Accused acted in self defence. The onus of negativing self defence will always lie squarely with the Crown. See R v MOLEKO 1955(2) SA 401 AD. It could not to the Accused (in any demonstrable way) that there was a threat of or assault committed on him, either by word or deed of immediate violence which led the Accused believed that the deceased or his companions had the power to carry out that threat. See CRIMINAL PROCEDURE THROUGH CASES, M. P. Mofokeng J p. 38. I have found that the knowledge that the deceased had a propensity to assault others was certainly much less than the requirement that the deceased must have committed assault accept for that there was a threat of any kind perceived on the part of the Accused and that any act led the Accused to believe that the deceased had the power to carry the "deed threatened."

I could therefore not speak of the Accused acting within the bounds of self defence and I did not conclude that there was not even a threatened deed. See R

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v PATEL, 1959(3) SA 121. I could not accordingly speak of "a reasonable possibility on the evidence" which Watermeyer CJ spoke about in R v ATTWOOD, 1946 AD 331 at page 35 which entitles an acquittal on the ground that one was acting in self defence. Instead it was beyond a reasonable doubt proved that the Accused could not have acted in self defence. Unless one had to accept that any fanciful defence or speculative proposition would stand the test. At the risk of repeating any or all of this following consideration it must appear fully on the evidence that there had been an unlawful attack and there had been reasonable ground for thinking that an accused was in danger of death or serious injury. Secondly that the means of self-defence used were the only or least dangerous means which he would have avoided the danger. Most of these considerations are premised on there having been an initial attack sought to be repulsed. The Accused need not be the initial aggressor. The facts did not bear this

out. I was driven to an inescapable conclusion that there was no degree of self-defence on the part of the Accused.

I have considered the otherwise helpful submission by Mr. Nthethe for the defence that warned against the Court adopting at the position of an armchair critic by not taking into account the exigencies of the occasion as was advised against in R v PATEL (supra). This useful dictum by Van den Heever JA in R v ZIKALALA 1953 (2) SA 568 AD as approved from Gardener and Landsdowne CRIMINAL LAW AND PROCEDURE would equally be applicable. It said:

"When a man can save himself by flight, he should flee rather than kill his assailant. But no one can be expected to take flight to avoid an attack, if flight does not afford him a safe way to escape. A man is not bound to expose himself to the risk of a stab in the back which by killing his assailant he can secure his own safety."

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Such were not the facts. I found that the assault could not be justified on the ground of self-defence. The Crown had successfully negatived self-defence beyond a reasonable doubt. The Accused was not entitled to an acquittal.

I turned then to the last point of law raised by the defence. Starting from when the point was unrefined. It was that there was:

" no evidence excluding the possibility of novus actus interveniens

by the treatment of the deceased received at the said hospital what then purports to be the cause of death becomes speculative because no account is taken of what took place at the hospital and once that happens it simply means that the Crown has not discharged its onus." (My underlining) quoted from R v SEKATI 1980 (1) LLR 213 at page 220.

The legal position of the principle was extensively considered and authoritatively stated in that rather outstanding piece of a guiding precedent. Reduced to simplicity the principle means that if the Court is not told of the treatment that a deceased person (who died in hospital or clinic) received at that institution after having been received from injuries and subsequently died the possibility that something else other than the injuries caused his death has not been excluded. And the onus was on the Crown.

The place of novus actus interveniens in our criminal law had been considered before R v SEKATI (supra). It was in the Court of Appeal case of POTSELANE RAMETSE v REX 1967-70 LLR at page 70 where Roper JP said:

"It is difficult and perhaps impossible to formulate any satisfactory test

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as to when it can be said that the cause of death was not the original
injury but the subsequent treatment ".

The learned Judge President then stated most competently at page 80B:

"An accused person who has inflicted injuries or other is not entitled to expect his victim shall receive medical attention and if the victim has received normal medical attention, or such attention as is normally available he is not entitled to escape responsibility for the victim's death if that attention is unsuccessful in saving the victim's life."

The central basis was well laid for an otherwise elusive concept. Indeed Mofokeng J in R v SEKATI (supra) has laid out nine (9) scenarios in which the problem had presented itself in our courts which were distilled into four situations of how the legal position in Lesotho was. Mr. Lenono suggested that the appropriate one would be (1) at page 219 where:

"Y received treatment either at a clinic or at a hospital and he subsequently dies. In such a case there must be evidence as to the nature of the treatment received in order to exclude the possibility of

I suggested to Mr. Nthethe that one can clearly speak of the operation on the deceased, which was unsuccessful, as the treatment that was received by the deceased when he was put into Queen Elizabeth II Hospital. Mr. Nthethe then in turn in the refined in the point said that the doctor had "not sufficiently" stated the treatment received. I questioned whether it had to be in a laymen's language

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. devoid of the medical jargon to have been sufficiently stated. If it had to be so then too few of doctors reports would pass muster. And then there would reign a situation where the administration of justice would suffer or be sacrificed. I thought the explanation of the treatment, as shown in the doctor's report quoted much earlier in this judgment, was sufficient for the requirement that the medical treatment given must be indicated. This point ended up having no merit.

I finally considered that the Accused was found guilty as charged with dolus indirectus in the killing of Phallang Mosala who died on the 20th August 1989.

My assessors agreed.

T. Monapathi
Judge

For the Crown : Mr. Lenono
For the Accused : Mr. Nthethe