R v Moorosi (C of A (CRI) NQ.2 OF 2002)

Media Neutral Citation: 
[2003] LSHC 119
Judgment Date: 
10 October, 2003


C of A (CRI) NQ.2 OF 2002


In the matter between :

REX Appellant



Coram: Steyn P

Ramodibedi JA

Plewman JA


Appeal by the Crown - whether evidence establislied charges of murder and attempted murder - alteration of lower courts conviction


Plewman JA

1. This is an appeal by the Crown in a criminal case. The respondent was charged in the High Court on one count of murder and one of attempted murder the particulars of the charges being that on 7 August 1998 and at or near the Mafeteng Prison respondent shot and killed one Lekhetho Leokane and also shot one Hlomohang Shoaepane in the thigh. Respondent was found guilty of culpable homicide on the first count and, on the second count, of contravening the provisions of section 26 of the


Internal Security (Arms and Ammunition) Act No 17 of 1966. On the first count respondent was sentenced to a fine of Ml0,000 (or 10 years imprisonment) one quarter thereof being suspended for three years on condition that he not be found guilty during the period of the suspension of an offence involving injury to any person for which he was sentenced to six months imprisonment without the option of a fine or of an offence under the Arms and Ammunition laws. On the second count respondent was sentenced to a fine of R400 or one year imprisonment. In addition the pistol used by the respondent in both shootings was declared forfeited to the State and respondent was banned from ever again being licenced to possess a firearm of any sort. . The Crown's appeal is directed at the convictions and the sentence.

2. The incident giving rise to the charges is not in question nor is the fact that the respondent was armed with the weapon in question and that he shot both the deceased and the complainant on count 2. The respondent was (as at August 1998) a principal officer at the Mafeteng prison. The deceased, the complaint and the material witness to the shooting were also prison officers. The shootings took place at a farewell party held upon the retirement of a prison officer. In the course of the evening the respondent, who seems to have consumed an amount of liquor, which common knowledge would suggest was substantial, was involved in an altercation with a PW 1 (also a prison officer who was serving the liquor at the function). PW 1 suggested to the respondent, who had found that the liquor he had consumed had upset his stomach, that he should not "mix his drinks". The sequence of these early events is not material and it is enough to record that respondent at this point produced what was described as his "personal firearm" and pointed this at PW 1. Respondent


then stated, loudly enough for other present to hear, the words "I am ready". The immediate consequence was that the deceased and Shoaepane (neither of whom had played any role in the preceeding events) attempted to intervene by interposing themselves between PW 1 and respondent while raising their hands. The respondent then pushed the deceased who stumbled backwards. As the deceased tried to regain his balance respondent shot him and then shot at Shoaepane - the bullet entering his thigh. Both these persons were not, at the time, in a direct line between respondent and PW 1. More importantly the firearm was an automatic pistol and as such would fire two shots only if the trigger was pulled and released and again pulled and released. The action of firing two shots was therefore something which required conscious and deliberate actions on respondents' part. Immediately after the shots the deceased (still crouched on the floor) said to the respondent:

"why are you doing this to me?" To this the respondent answered:

"I told you that I will catch you."

It was on the basis of this evidence that the Crown sought a conviction on the two counts as charged.

3. It remains only to record that the respondent's defence was one of self defence. He contended that he himself was being threatened with a firearm at the time. The court n quo rejected this defence. In so doing it rejected respondent's evidence relating to the circumstance obtaining at


the time when he fired at the deceased and Shoaepane. The court held that the shooting occurred in the manner testified to by the Crown witnesses - being on this issue PW 1, PW 2, PW 3 and PW 4. All these witnesses testified to the events in line with what has been set out above. In the circumstances there can be no doubt that the Crown's version was clearly established by the evidence.

4. On the face of it therefore the inference that respondent was acting in a deliberate and calculated way is unavoidable. One would have thought that an inference of intent on his part was also unavoidable. It is of particular importance that no one - not the Crown witnesses or indeed the respondent himself (who also gave evidence) - suggested at any stage that respondent was under the influence of alcohol or was so affected by what he had consumed that he was incapable of acting rationally or forming an intention to kill. Indeed PW 1, for example, was specifically questioned on this issue. His evidence was that, as a person who had been working with respondent he saw him in "a usual condition" - that is normal as opposed to intoxicated. The upshot, as it appears to me, is that on the evidence respondent, had consumed intoxicating drink which may well have and certainly must have caused him to be unusually aggressive but he was not intoxicated to a degree where he could not be said to be capable of acting normally and consequently of forming an intention to kill.

5. This brings me to the judgment in the court a quo. In a passage (in what amounts to no more than one page of a 20 page judgment) one finds observations to the following effect namely that the shooting was "rather fortuitous than planned" and that (his) utterances were more consistent


"with his dangerous drunken conduct than with any premeditation on his part". Further it is stated: "In his wild sudden fury he shot at random ...." These remarks formed the basis for the court a quo's conclusion that:

"The Crown has not proven (sic) beyond a reasonable doubt that the accused had the necessary intention - directus or eventualis -intoxication and possible provocation being taken into account when he shot wildly."

What I have set out from the judgment amounts to a series of misdirections on the part of the court a quo. Premeditation was not the issue - intent was. Provocation did not arise or exist, nor was it asserted by respondent or otherwise established in evidence. Respondent did not "shoot wildly" or "at random."

6. I can well understand that with seemingly irrational behaviour a court will of necessity search for something which could explain that conduct. But cases must be decided on the evidence before the court. To do otherwise would render trial proceedings an exercise in futility. It would also reduce litigation to a purely arbitrary exercise of power. This in essence is what happened in the present case. In this case one can only conclude that respondent acted deliberately in full knowledge of the possible consequences. That establishes an intention to kill in so far as both counts 1 and 2 are concerned.

7. In the circumstances the appeal must succeed and the court a quo's verdicts and sentences are set aside. 1 substitute for its verdicts the verdict that respondent is guilty of murder on Count 1 and of attempted murder on Count 2. This means that the question of extenuating circumstances must be considered. This does not call for detailed discussion because the


Crown conceded in argument that such circumstances did exist. The concession or submission was that although no defence to the charges on the basis of intoxication could or had been made out the quantity of liquor consumed by respondent could not have left him completely unaffected I accept this submission and there is no need to debate the issue further. On both counts the verdict is then ''guilty of murder and attempted murder with extenuating circumstances."

8. In substitution for the sentences pronounced by the court a quo I impose, on count 1, a sentence of 10 years imprisonment and, on count 2, a sentence of 5 years imprisonment. The sentences on count 1 and 2 are to run concurrently and are to take effect from the date of judgment in the court a quo namely 11 April 2002. The order relating to forfeiture of the firearm and the ban against the respondent being again granted a licence to possess a firearm of any sort must stand.

C. Plewman, JA

I agree:

J. H. Steyn, P

I agree:

M. M. Ramodibedi JA

Delivered at Maseru this 10th day of October 2003.


For Applicant : Ms L Mofilikoane

For Respondent : Mr T Nteso