R v Ratsebe (CRI/T/179/2001)

Case No: 
CRI/T/179/2001
Media Neutral Citation: 
[2003] LSHC 125
Judgment Date: 
21 October, 2003

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CRI/T/179/2001

IN_THE HIGH COURT OF LESOTHO


In the matter of:

REX

v

RETSELISITSOE RATSEBE


JUDGMENT


Delivered by the Honourable Mr. Justice B.K. Molai On 21st day of October, 2003

the accused person appears before me charged with two counts of murder and attempted murder on the following allegations:


Count 1: "In that upon or about the 2nd day of December, 1999 and at or near Mafeteng Reserve in the district of Mafeteng, the said accused did unlawfully and intentionally kill Tsotetsi Mokete. "


Count 11: "In that upon or about the 2nd day of December, 1999 and at or near Mafeteng Reserve in the district of Mafeteng the said accused did unlawfully and with intent to kill shoot Makoanyane Lepolesa"


When the charges were put to him, the accused pleaded not guilty to both counts. Mr. Fosa who represents the accused, in this trial, told the court that the plea of not guilty tendered by the accused person was in accordance with his instructions. The plea of not guilty was, accordingly, entered in respect of the two counts.


Six (6) witnesses were called to testify in support of the crown case. No witnesses were called to testify on behalf of the accused person who, however, himself went into the witness box and gave evidence in his own defence.


P.W.1, D/Tpr. Mokhachane, testified that he was a member of the Lesotho Mounted Police Service based at Mafeteng Police Station. At about between 8p.m. and 9p.m. on 2nd December, 1 999 he was at his duty station in Mafeteng, when a certain vehicle brought an injured person by the name of Makoanyane Lepolesa who reported that he and his companion had been shot and injured at "HL" supermarket in Mafeteng Reserve. According to him, P.W.1 could observe that Makoanyane had sustained a bleeding injury on the ribs of his left side. The police then completed a medical form by which Makoanyane was referred, in the vehicle that had brought him to the police station, to Mafeteng hospital for medical treatment.


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Following the report made by Makoanyane, P.W.1 himself proceeded to the supermarket. He was accompanied by a certain Tpr. Molelle. When they approached the "HL" supermarket they noticed and, went to a group of men next to BP garage filling station along the public road loading from Mafeteng town to Thabana-Morena.


On arrival P.W.1 found that the group of men was gathered around a person who was lying down, clearly injured as he was covered with blood. He identified the injured person as one Tsotetsi, an acquaintance of his. As Tsotetsi was still alive, the police officers immediately rushed him, in the police vehicle in which they were travelling, to Mafeteng hospital. They did not even wait to examine him for injuries It was only when they were already at the hospital that P.W.1 noticed that the injury which Tsotetsi had sustained was a wound on the chest. P.W.1 assured the court that Tsotetsi did not sustain any injury whilst he was being transported, in the police vehicle, from the BP garage filling station to the hospital. I shall return to P.W.1's evidence, in a moment.


Tpr. Molelle testified as P.W.5 and told the court that he too was a member of the Lesotho Mounted Police Service, stationed at Mokhotlong Police Station, in the district of Mokhotlong. In 1999 he was, however stationed at Mafeteng police station, in the district of Mafeteng.


In his testimony, P.W.5 corroborated, in material respects, the evidence of P.W.1. In particular, he confirmed P.W.1s evidence that Tsotetsi was still alive when he and P.W.1 left him at Mafeteng hospital where he was admitted, on 2nd December 1999. However, on the following day, 3rd December 1999, P.W.5 learned that Tsotetsi had died at the hospital.


Now, returning to his evidence, P.W.1 told the court that on the morning of the following day, 3rd December 1999, the accused surrendered himself at Mafeteng police station and handed over a "commando" the, serial number 23127, loaded with 3 bullets. According to him, P.W.1 took possession of the rifle which had since been in the custody of the police. He handed it in, together with its ammunition, as exhibit "1" and part of his evidence, in this trial.


P.W. I further told the court that after he had duly cautioned him, the accused explained that at about between 8p.m. and 9p.m. on the previous day, 2nd December 1 999, he and another security man by the name of Mabusetsa Suping (now deceased) were outside "HL" supermarket when he (accused) noticed two men, who were apparently drunk, approaching thorn. When they arrived where the accused and


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Suping were sitting outside the "HL" supermarket one of the two drunken men said he could smell meat. The accused and Suping should therefore give them meat. When the accused replied that there was no meat, drunken man insisted that he and his companion should be given meat because they could smell it. The accused then told the two men to leave the place because they (accused and Suping) were at work.


In his explanation, the accused told P.W.1 that he then noticed one of the two drunken men putting his hand on the waist. Believing that the drunken man was taking out a firearm to shoot him and Suping, the accused cocked his firearm. The drunken man, who was the deceased in count; 1 (Tsotetsi) then said: "oh my friend, I am used to firearm business. " As he uttered those words, Tsotetsi moved towards him (accused). the (accused) fired at him. He did not first fired a warning shot in the air

After he had been shot at, Tsotetsi and his companion ran away. As they were running away the accused fired another shot at, and chased after, Tsotelsi and his companion. He (accused) also blew his whistle so that other security men, in the town of Mafeteng, could join in the chase against the two drunken men. According to the explanation of the .accused, his intention was to have the two drunken men arrested and taken to Mafeteng Police Station.


Following the accused's explanation, P.W.1 charged him as aforesaid and arrested him. When P.W.1 asked him whether or not he would be prepared to repeat, before the Magistrate, the explanation he had given to him, the accused replied in the affirmative. P.W.1 then escorted the accused to the Magistrate office, presumably for the purpose of making a confession. However, no evidence of a confession was adduced, in his trial.


It is common cause that on 7th December 1999, and at the Mortuary of Mafeteng government hospital, a medical doctor performed a post-mortem examination on a dead body of a male African adult. The medical doctor prepared a post-mortem examination report which was, by consent of the parties, handed in, from the bar, as exh. "A".


According to exh. "A", the dead body was identified before the medical doctor, by Aarone Mokete and Bohloa Sekese, as being that of Tsotetsi Mokete. In his examination of the dead body the medical doctor found that the deceased had sustained a gun shot wound which penetrated through the chest, from the front to the back, below the scapula, injuring, in the process, the right lung. There was, in the finding of the medical doctor, haemothorax. On these findings, the


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medical doctor formed the opinion that the deceased had died as a result of the gun shot wound which had been inflicted on him.


I can think of no good reasons why the opinion of the medical doctor that the deceased had died as a result of the gun shot injury that had been inflicted on him should be doubted. The salient question that now .arise:. for the determination of the court is whether or not the accused is the person who inflicted the gun shot injury on the deceased and, therefor, brought about his death. In this regard, the court heard the evidence of Makoanyane Lepolesa who testified as P.W.6 and told the court that at about 4:00p.m on 2nd December 1 999 he and Tsotetsi Mokele (the deceased in Count 1) went to drink beers in one of the beer-drinking houses at the bus stop, in Mafeteng town. When, at about 8:00p.m on that day, they left the beer house for their home, at ha-Lepolesa, P.W.6 had already consumed 9 quart bottles of beer. He was, however, not drunk.


I must say I find it incredible that P.W.6 could have consumed 9 quart bottles of beer and yet remained sober. I think P.W.6 is one of those people who wrongly, believe that for one to be drunk one must be crawlingj on his knees.


Be that as it may, P.W.6 went on to testify that shortly after they


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had left the beer house for their home, he stopped next to some shacks to pass water whilst the deceased continued on his way home. After passing water, P.W.6 heard the deceased, who was walking some distance ahead, calling him and saying he could smell meat. P.W.6 then ran towards the deceased. As he was thus running towards the deceased, P.W.6 heard a gun report from behind. He looked back but could not see anybody. When he continued running towards the deceased, he heard a second gun report and felt a bullet hitting him on the left side of his chest. As a result, he fell to the ground. When he got up from the ground, P.W.6 noticed 3 security men chasing after the deceased who who running in the direction towards the Mafeteng police station. He (P.W.6) himself ran downwards in the direction towards a B.P. garage filling station, which was along the public road leading from Maseru to Mafeteng, town. He had not seen the person who had shot at him. He merely assumed that one of the 3 security men had done so because he had seen them chasing after the deceased.


P.W.6 denied the suggestion that he and the deceased had ever come to "HL" supermarket where the accused and the late Mabusetsa Suping were allegedly silting around a fire. He told the court that when he arrived as the BP garage filling station, he asked for help and was rushed, in a white sprinter" vehicle, to Mafeteng Police Charge Office. He confirmed the evidence of P.W.1 that on arrival at the police charge


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office the police requested the driver of the white "Sprinter" vehicle to take him to the hospital where he was examined and admitted in hospital by a medical doctor who compiled a report. The medical report was by agreement of the parties, handed in, from the bar, as exh. "B".


According to exh. "B", the police, at Mafeteng Police Station, referred P.W.6 who was alleged to have sustained a gun shot injury, to Mafeteng hospital for medical attention. He (P.W.6) was duly examined by a medical doctor at Mafeteng government hospital. Exh. "B" futher revealed that P.W.6 had sustained gun shot wounds on the left side of his chest . He was, on 2nd December 1999, admitted in hospital and discharged on the following day, 3rd December 1999.


P. W.6 told the court that, whilst his injury was being cleaned by the nurses, he noticed Tsotetsi, who had also sustained injuries, arriving at the hospital. After the nurses had cleaned his injuries, Tsotetsi was taken inside the hospital although he (P.W.6) did not know where inside the hospital he (Tsotetsi) was taken. However, on the following day, 3rd December 1999 P.W.6 learned from the nurses that Tsotetsi had passed away.


P.W. Moiloa David Tsiloane, testified that he lived at Motsemocha, in the district of Mafeteng. He knew the accused person. On the day in question (2nd December 1999), he was working as a security man at the home of one Mahapela Sello, in Mafeteng town. The accused was also working as a security man at "HL" supermarket which was about 100 metres away from the home of Mahapela Sello in the same town.

At about between 8p.m and 9p.m on the same day, P.W.2 was at his place of work when he heard a gun report and people quarrelling from the direction of "HL" supermarket. Shortly thereafter, he heard a second gun report and noticed two people running away from the direction of "HL." supermarket towards the public road leading from Thabana-Motena to Mafeteng town. He then heard whistles being blown and people shouting "Thiba kamoo" (Stop from that side). He could identify the people who were shouting by their voices as being the accused and the late Mabusetsa Suping. He joined them in the chase after this two people who were running away and then heard a third gun report. The third gun report could not, however, have come from the firearm which the accused was carrying because accused carried his firearm on the shoulder and its barrel was pointing backward as he ran. At that time, P.W.2 noticed that many other people were also chasing after the two people who were running away.


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After the third gun report was heard, one of the two people, who were running away, took a downward direction towards the I.E.C. offices and/or Asia Supermarket whilst the other took the direction toward the BP garage filling station along the Thabana-Morena public road. P.W.2 and Mabusetsa Suping followed the one who ran in the direction towards BP garage filling station whilst the accused followed the one who ran downwards. According to P.W.2, when he came to the filling station he found that person already surrounded by many people where he had fallen but still alive.


Shortly thereafter, the accused arrived and identified the person as the person he had earlier shot at. Although he could not see any injury on him, P.W.2 noticed that there was a pool of blood on the ground where that person was lying. Thereafter, P.W.2 left the place and returned to his place of work. He was in the company of Suping, Mohlalist and MaIike who were also security guards, in the town of Mafeteng the accused himself went into the garage saying he was going to telephone the police.


However, whilst: P.W.2 and his party were still on the way to their respective places of work, the accused joined them. Shortly thereafter, they met police officers who were travelling in a police vehicle. The police offices asked them what was happening at the filling station.


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It was the accused who answered and spoke to the police officers. P.W.2 could not follow what was said in the conversation between the accused and the police officers. After they had spoken to the accused, the police officers; proceeded to the filling station followed by the accused himself. According to him, P.W.2 did not know what eventually become of the person he had left lying in a pool of blood next to the garage. Nor did he know what became of the person who had earlier run in ,a downwards direction.


P.W.4, Thato Sam, testified that he was an employee of a BB Alert security company. He was stationed at Qacha's Nek, in the district of Qacha's Nek. In December 1 999 he was already employed by the BB Alert Security Company but stationed at Mafeteng town, in the district of Mafeteng, where he was working as a security guard at BP garage filling station, commonly known as City Filling Station.


He told the court that one day, in December 1999, at about 8p.m., he was. behind the building of the BP garage Filling Station when he heard three (3) gun reports and the blowing of whistles, in front of the building, He moved to the front of the building from where he noticed many people running in the direction towards his filling station. When he called out and asked what was happening there was no reply from those people who kept on running in the direction towards the City


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Filling Station PW4 then cocked his firearm and fired a warning shot in the air It was only then that those people stopped running towards the City filling station and scattered in different directions.


Thereafter P.W.4 walked lower down, from his place of work, towards the public road. On his return, he noticed that a group of workers of City filling Station had gathered at a furrow next to the filling station. He went there and found that there was a person who had fallen into that furrow. He instructed the workers to take that person out of the furrow whilst he himself went into the filling station building and telephonically reported to the police at Mafeteng Police Station. He then returned to where the person who had been taken out of the furrow was placed in front of the filling station building.


Shortly thereafter, the accused, whose name he later came to know as Retselisitsoe, came to the scene. On arrival, the accused observed that there was a pool of blood where the person who had been taken out of the furrow was placed, in front of the filling station building. The accused also lifted up the skipper that the person taken out of the furrow was wearing and remarked that that person had a wound on the shoulders. According to him, P.W.4 did notice the pool of blood pointed out by the accused where the man taken out of the furrow was placed in front of the filling station building. He also noticed


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that the skipper worn by the man taken out of the furrow had blood stains. That was however, at the time the accused observed that the man was lying in a pool of blood and lifted up his skipper.


P.W.4 confirmed that eventually the police officers arrived at the scene but he no longer remembered whether the accused was still there or he had already left. He, however, confirmed that after they had arrived at the scene the police officers conveyed away the person, who had been taken out of the furrow, to Mafeteng hospital. He (P.W.4) did not accompany that person when the police officers transported him from the City filling station to Mafeteng hospital.


In his evidence PW.3, Khesuoe Paul Seeko, told the court that he lived at ha Tsosane, here in Maseru. In 1999 he was employed by BB Alert Security Company and stationed in the district of Mafeteng as a guard man at. BP garage filling station, commonly known as "Good Hope Garage" in the town of Mafeteng. He remembered that at about between 8p.m and 9p.m on 2nd December 1999 he was at his duty station when he heard tow (2) gun reports and a whistle being blown. He was at that time in the company of other workers of the Good Hope Filling Station and many people who had come to fill petrol at the filling station.


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Shortly after he had heard the gun reports, P.W.3 noticed a person approaching the filling station. On arrival at the filling station, that person explained that he had been shot at when he was next to another BP garage filling station along the public road leading from Thabana-Morena to Mafeteng town (City Filling Station). He asked for assistance P.W. 3 noticed that the person had, indeed, sustained an injury on the left side of his chest. He (P.W.3) and the other people at the filling station did assist that person by calling the police.


It would appear that the police did subsequently arrive at the scene because PW.3 told the court that he and two (2) police officers approached a person who was driving a white "Sprinter" passenger vehicle with a request for help. That person did help by conveying away the injured person in his white "Sprinter" passenger vehicle. Although P.W.3 did not accompany the injured person when he was taken away in the while "Sprinter" passenger vehicle, the two police officers did accompany him


PW.3 further told the court that, about 10 minutes later, the while "Sprinter" passenger vehicle returned to the "Good Hope" filling station and the driver thereof reported that another person had been shot next to the BP garage filling station along the public road leading from "Thabana Morena to Mafeteng town (City Filling Station). As a


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result of the report P.W 3 proceeded to the City Filling Station along the Thabana - Morena Mafeteng public road. On arrival at the City Filling Station, he found that the person who had allegedly been shot at was no longer there. He could only see a pool of blood, presumably at the spot where the injured person had been placed after he had been removed out of the furrow. According to P.W.3, he subsequently reported the incidents to his head quarters.


In his defence,the accused gave evidence as D.W.1 and testified that he lived at Mohlaka-oa-Tuka, in the district of Maseru. He was unemployed. However, in 1999 he was still employed by MM Security Company and stationed in the district of Mafeteng where he worked as a night security guard at "HL" supermarket, in the town of Mafeteng.


According to D.W.1, on the night of 2nd December, 1999 he was at his duty station, the "HL" supermarket. He was in the company of three (3) other people namely Mabusetsa Suping (now deceased) who was also a trained security guard employed by the "MM" Security Company and stationed ,at "HL" supermarket, a night watchman who was not a trained security officer but also employed at the "HL" supermarket and another person who was, however, neither an employee of the MM Security Company nor working at "HL" supermarket. D.W I testified that of the four (4) people he was the


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only one carrying a firearm. He told the court that it was raining on the night of the day in question and they were sitting around a fire at the "HL" supermarket


It may perhaps, be mentioned, at this juncture, that although D.W.1 initially said Mabusetsa Suping was also working with him at "HL" supermarket, he later somersaulted and told the court that Mabusetsa Suping was, in fact, employed as a security guard at a different shop and had only come to "HL" supermarket to protect himself from the rain as there was no where he could protect himself at his shop.


Be that as it may, D.W.1 went on to testify that as he and his three (3)companions were sitting around the fire at "HL" supermarket two men came to them and demanded meat. When D.W.1 told them that there was no meat where he and his companions were seated around the fire, the two men insisted to demand meat saying they could smell it. D.W.1 then invited them to look in the fire and satisfy themselves that there was no meat.


After the two men had looked in the fire and satisfied themselves that there was, indeed, no meat, one of them caught hold of the firearm which D.W.1 was carrying and told him (D.W.1) that, since there was


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no meat, he and his companion were going to give him (D.W.1) his mother. A struggle for possession of the firearm then started between D.W.1 that man When the late Mabusetsa Suping stood up and tried to come to his (D.W.1's) assistance, the other man told him to sit down. He ordered him and the other people who were seated around the fire to lie down. They all obliged. As he ordered Mabusetsa Suping and the other people to lie down that man pulled up his jersey and D.W.1 could notice dark object on his waist.


I must say, I find n rather incredible that whilst he and the person who wanted to dispossess him of his firearm were engaged in a struggle, D.W.1could have had the leisure to observe what the companion of the man with whom he was struggling did to his jersey and had on his waist. Nor could he have had the leisure to observe that Suping and the other people who were seated around the fire did lie down in response to the order of the companion of the man with whom he was seriously struggling for possession of the firearm.


In any event, D.W. 1 told the court that he later came to know that the names of the man with whom he struggled for possession of the firearm and the one who ordered Suping to sit down were Makoanyane and Tsotetsi, respectively. He told the court that, during the course of the struggle for possession of the firearm, Makoanyane intensified his


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strength. However he (D.W.1) also firmly increased his grip on the firearm and pulled it away so hard that he overpowered Makoanyane. In the process D.W.1 fell on his back some distance away from his rival (Makoanyane)


D.W.1 told the court that, whilst he was still on the ground, he cocked his firearm he then noticed Makoanyane approaching him and as he did so he(Makoanyane) was uttering the words "Boys of your age do me nothing at my home, in Leribe" or words to that effect. It was at that stage that, in self-defence, D.W.1 aimed, opened fire, and shot, at Makoanyane who was apparently not armed with any weapon, at all.


For the private defence of self-defence to avail him, D.W.1 must, inter alia have acted to repel an eminent danger on him and the means he uses to repel that danger must be proportionate. If his evidence were to be accepted as correct, D.W.1 told the court that as he lay on the ground where he had fallen during the struggle for possession of the firearm, he noticed Makoanyane, who was not armed with any weapon, approaching him and uttering threatening words. He then aimed, opened fired and shot at Makoanyane. The bullet hit Makoanyane and then went on to hit Tsotetsi who was, at the time, standing approximately 4 metres behind him (Makoanyane). In using a weapon as lethal as a firearm to shoot at a person who was threatening him bare


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handed or with no weapon at all, it must be accepted that the means used by D.W.1 to repel the danger, he may have been faced with, was disproportionate. for this reason, the private defence of self-defence could not have availed him.


D.W.1 further told the court that after he had shot at him, Makoanyane ran away together with Tsotetsi. In the contention of D.W.1 the bullet he had fired at Makoanyane hit the latter and then went on to hit Tsoteisi who had been standing approximately 4 metres behind Makoanyane.


When Makoanyane and Tsotetsi ran away, D.W. 1 blew his whistle and chased after them. He was joined in the chase by all the people who had been siting around the fire at "HL" supermarket and many other security men in the town of Mafeteng. The reason for the chase was to arrest Tsotetsi and Makoanyane so that they could explain why they did what they had done at "HL" supermarket.


D.W.1 told the court that after Makoanyane and Tsotetsi had run away for a distance of approximately ten (10) metres the latter fell down whilst the formen continued running away. Suping and the other people who had joined in the chase remained with Tsotetsi. D.W.1 himself continued chasing after Makoanyane who, however, outran


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him and disappeared in the darkness. D.W.1 then returned to where Tsotetsi had fallen. On arrival he noticed that Tsotetsi was restless as he lay on the ground where he was surrounded by many people. According to him, D.W.1 examined Tsotetsi for injuries and noticed that he had sustained a bleeding wound on the back towards the shoulders.

Thereafter, D.W.1 went to the City Filling Station building to ask for permission to use the telephone and report the incident to the police. However, the security man at the filling station himself telephoned the police who subsequently arrived at the scene. After D.W.1 had explained to them what had happened, the police officers conveyed away Tsotetsi, in their police vehicle saying they were taking him to the hospital.


To D.W.1's observation, Tsotetsi was already dead when the police officers took him to hospital. It will be recalled, however, that in their evidence P.W.1 and P.W.5, the police officers who had transported Tsotetsi to the hospital, told the court that when they rushed him to the hospital, Tsotetsi was still alive. They were supported, in this regard, by the evidence of P.W. 6 who testified that on arrival at the hospital Tsotetsi was not taken to the mortuary but left in the hands of the nurses who immediately attended to his injuries. That being so, there is no doubt in my mind that D.W.1 could not be


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correct in his observation that Tsotetsi was already dead when the police officers rushed him to the hospital.


Be that as it may, D.W.1 went on to tell the court that when the police officers rushed Tsotetsi to the hospital, he and the other security men dispersed and returned to their respective places of work, in the town of Mafeteng. After approximately an hour, the police officers again, came to D.W.1 and his colleagues at "HL" supermarket and reported that besides Tsotetsi, another person with a gun shot wound, presumably Makoanyane, had also been taken to the hospital.


At about 4 a.m. on the night of the same day, 2nd December, 1999, a Police Officer came to "HL" supermarket and told D.W.1 that the person he had earlier shot, presumably Tsotetsi, had died at the hospital. On the following day, 3rd December, 1999, D.W.1 proceeded to Mafeteng Police Station where he surrendered himself together with his firearm, Exh.1 which, according to him, he had used to shoot Makoanyane and Tsotetsi.


Considering the evidence as a whole, I can find no good reason to disbelieve the accused, in his testimony that he was the person who aimed, opened fire and shot, at Makoanyane. At the time he did so, the accused was aware that Tsotetsi was standing approximately four (4)


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metres behind Makoanyane He nevertheless fired the bullet which hit Makoanyane and went on to fatally injure Tsotetsi who was admittedly not threatening him (accused) at all. The question I have earlier posted viz. whether or not the accused is the person who inflicted the gun shot injury on Tsototsi (deceased in Count 1) and, therefore, brought about his death, must be answered in the affirmative. The only question that remains for the determination of the court is whether or not in fatally injuring Tsototsi as he did, the accused had the requisite subjective intention to kill him. Assuming the correctness of his evidence that at the time he opened fire at Makoanyane he was aware that Tsotetsi was standing only 4 metres behind him (Makoanyane), I am convinced that the accused was aware of the possibility of the bullet fatally hitting Tsotetsi as well. He nevertheless opened fire regardless of whether or not Tsotetsi would be fatally hit. In my finding, the accused did have the requisite subjective intention to kill, at least, in the legal sense.


It is not really disputed that the accused did shoot at and injured Makoanyane (PW6), the complainant in Count II. The salient question for the determination of the court is whether or not he did so, with the requisite subjective intention to kill. Notwithstanding his contention that he did so in self-defence, I have found, on evidence, that in the circumstances of this case, the private defence of self-defence could not avail him. At the time the accused noticed that Makoanyane was


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approaching him, where he had fallen on the ground, the latter was not armed with any weapon whatsoever. He was only threatening him with words. Where he is threatened with words, the accused cannot, in law, be allowed to use a firearm to repel that threat.


In my finding in shooting at and injuring Makoanyane as he did, the accused was aware that death was likely to occur. He nonetheless opened lire on Makoanyane reckless of whether death did occur or not. The accused did, in my view, have the requisite subjective intention to kill. However, by a sheer luck Makoanyane was only injured and did not actually die.


In the result, I come to the conclusion that the accused has committed the offences against which he stands charged, in Count I and Count II. Accordingly, the accused is convicted as follows:


Count I: Guilty of murder as charged.


Count II: Guilty of attempted murder as charged


Extenuating Circumstances


Having convicted the accused of murder in Count l, the court is now enjoined by the provisions of section 296 (1) of the Criminal Procedure and Evidence Act, 1981, to determine whether or not there are any factors that tend to reduce the moral blameworthiness of his


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act. In this regard the court found, on evidence, that in killing the deceased, as he did the accused had intention, in the legal sense, i.e he had not planned or premeditated the death of the deceased.


The absence of premeditation of the deceased's death is, in my view, a factor that tends to reduce the moral blameworthiness of the accused's act. In my finding, extenuating circumstance, viz. the absence of premeditation to kill the deceased, does exist in this case. The proper verdict in Count I is, therefore, that the accused is guilty of murder with extenuating circumstances.


My Assessor agrees with this finding.


SENTENCE


The court is informed, by the crown counsel, that the accused has no record of previous convictions. He is, therefore, a first offender. In mitigation of the accused's punishment, the defence counsel also invited the court to consider a number of factors. They have been so eloquently argued by the defence counsel that there is no need for me to go over them, again. Suffice it to say they have all been taken into account in assessing the sentence that is imposed on the accused person.


In addition, the court took into account that the relatives of the deceased will, in accordance with our Sesotho custom, probably sue the accused "to raise the head" i.e for compensation. In that eventuality, this court is only The first to punish the accused. Another court, viz. the


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Civil Court, is yet to punish him. It is important that in imposing punishment on the accused, this fact is borne in mind by this court lest it be said the courts of law punish a person twice for the same wrong.


In considering all these factors for the benefit of the accused person, the court is, however, not prepared to turn a blind eye to the seriousness of the offences with which he has been convicted. There is a need to impose a commensurately serious punishment. A punishment that will deter the accused from a repetition of the kind of behaviour against which he has been convicted. A punishment that will serve as a lesson to the accused and people of his mind that the courts of law do not tolerate the sort of behaviour against which the accused person has been convicted.


It is for the aforesaid reasons that the following sentence is found appropriate and, therefore, imposed on the accused person:


Count I : Ten (10) Years Imprisonment.

Count II : Two (2) Years Imprisonment.


The sentences are to run concurrently.


B. K. MOLAI

JUDGE


21 October, 2003


For Crown : Miss. Motinyane

For Defence: Mr. Fosa


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