IN THE HIGH COURT OF LESOTHO
In the matter between:-
Delivered by the Honourable Mrs. Justice K. J. Guni On the 5th Day of December 2003
Charge - murder - definition thereof ------essential elements thereof..... Indictment defective ------- the defects caused by omission of necessary allegations regarding the intention of the accused.
Failure to make out a prima facie case against the accused. ---- - Application for the discharge of the accused at the close of the crown case, in terms of Section 175 (3) Criminal Procedure and Evidence Act 1981, The meaning thereof-------
When the evidence adduced does not support the opening statement.
 The accused is charged with the crime of murder. Murder is the unlawful and intentional causing of the death of another
human being. CRIMINAL LAW: C R Snyman, Third Edition, at page 401, HUNT 333FF. The essential elements of the crime of murder are:- (a) unlawful, (b) intentional, (c) killing, (d) of another person: SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE VOLUME II, THIRD EDITION BY JRL MILTON.
 In the indictment in this case, it is being alleged, "that upon or about the 20th Day of December 2000 and at or near ST. JAMES MOKHOTLONG, the said accused did unlawfully assault BOHLAKISQ MOROJELE and inflicted on him certain injuries that resulted in the death of the said BOHLAKISO MOROJELE on the 9th day of January 2001 at QUEEN ELIZABETH II HOSPITAL in MASERU." (My underlining)
 There are a few defects in this indictment. These defects are material. They do not fall within the categories of Omissions or Imperfections which do not invalidate the charge, as set out in SECTION 154 (1) CRIMINAL LAW AND PROCEDURE ACT 1981 (hereafter referred to as C P AND E Act 1981). The defects found in this indictment, for them not to be prejudicial to the accused person in his defence, must be cured by the evidence led in the course of establishing the alleged offence. The first defect is an Omission of an allegation regarding the intention of the accused person, to commit the crime charged. In his invaluable book on CRIMINAL LAW, THIRD EDITION, at page 413, C R Snyman defines assault as "consisting in the
unlawful and intentional application of force, directly or indirectly to the person of another, or the inspiration of a belief in another person that force is immediately to be applied to him." The specimen indictment of assault, found at page 431 of SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE, VOLUME 11, THIRD EDITION, BY JRL MILTON reads as follows:-
"That X is guilty of the crime of Assault, in that upon or about-------------at-------in the district of-----the
said X did unlawfully and intentionally assault Y by hitting him with his fist in the face." (My underlining)
Murder is the unlawful and intentional causing of death of another human being. Snyman, page 401. The essential elements of the crime of murder are:- (a) unlawful; (b) intentional; (c) killing; (d) of another person. Page 320 JRL MILTON (Supra).
From the foregoing, it is obvious, that an allegation of the accused person's intention to commit the alleged offence, must be made. Accordingly, a person cannot be charged with the crime of murder or assault without an allegation regarding his or her intention to commit the same. An assault or murder, cannot be committed without Mens Rea. The Omission of the particulars in the charge, of the manner in which the alleged offence was committed may be cured by the evidence led. The indictment does not show how and by means of what, were the injuries inflicted. I must point out at this stage that this
defect is apparently caused by the lack of evidence. On this aspect the evidence of the crown witnesses is contradictory and also confusing. The nature of the evidence of crown witnesses, instead of providing a cure for the defects regarding the particulars of the alleged offence, compounded the problem. The charge is so defective in material respects, it cannot stand. The accused cannot be properly convicted on a charge that is defective in such material respects.
 Since the trial proceeded on this defective charge up to the close of the crown case, I shall therefore deal with the application for the discharge of the accused, in terms of SECTION 175 (3) CRIMINAL PROCEDURE and EVIDENCE ACT 1981 (Supra). The relevant portions of the section reads as follows :-
"If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the office charged, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty".
THE CROWN CASE
 The crown led a number of witnesses. Amongst them, there are two witnesses who can be described as eye-witnesses. These are PW1 and 2. Each one described before this court,
what he actually observed with his own eyes at the time and place when and where the alleged offence happened. The deceased person and PW1, were employed by the accused person as the driver and conductor, respectively, of his VENTURE Motor Vehicle which he operated as a taxi there at MOKHOTLONG TOWN. On the day in question, at about 10 p.m the deceased and PW1 were travelling in that taxi towards LETSENG BUS STOP. On the way, the deceased lost control of the Motor Vehicle which consequently left the road and went into the ploughed field nearby where it got stuck. It was a dark and rainy night when the events leading to this charge occurred. The efforts of the driver - deceased in this case, to drive that VENTURE Motor Vehicle out of the muddy field and back on the road, were futile. The conductor suggested to the driver that he remains in the VENTURE Motor Vehicle there at the ROAD TRAFFIC ACCIDENT (RTA) scene while he (the conductor) goes to fetch another Motor Vehicle belonging to the accused person, to use it to pull out of the muddy field that VENTURE TAXI. They agreed. PW1 left the scene of the RTA. He returned later in the company of TEBOHO LEBEKO who was driving the accused person's van which was intended to pull out of the muddy field the VENTURE TAXI.
 Before the return of PW1 to the scene of RTA, there arrived the accused person in the company of PW2 - THE OWNER OF 4x4
Motor Vehicle which was used to pull out of the muddy field the accused person's taxi. PW2 had been asked to come and help to retrieve the accused person's taxi from the field by TSOKOLISO. According to PW2 they were the only people present there at the scene. They proceeded to tie together his 4x4 Motor Vehicle and the accused persons' venture taxi. When PW2 was about to pull the venture out, he suggested to TSOKOLISO that he goes into the venture in order to steer it as PW2 pulls it out.
 Suddenly, out of that night's darkness emerged the deceased person who claimed that he is the driver of that venture taxi and therefore he is the person to go in and drive it. "No! that will not happen" Exclaimed the accused who then and there approach the deceased person. The accused and the deceased grabbed hold of each other. The struggle ensued. They fell together, but the accused sat on top of the deceased. According to PW2, the accused punched and strangled the deceased. He banged the deceased's back - particularly his shoulders and the back of his head against the venture taxi. TSOKOLISO rebuked the accused who immediately stopped the assault.
 It is only after the alleged assault of the deceased by the accused had been stopped, that PW1 arrived at the scene. According to PW2, pwl came and stood between the accused
and PW2. As PW1 stood, he shouted "TAU". PW2 did not know to whom pwl was referring. The accused slapped PW1 once and PW1 fell to the ground. PW2 remarked to TSOKOLISO that he did not come there for this - referring to the fighting episodes. PW2 threatened to go away without helping them to pull out that venture taxi. The accused had long stopped the assault because according to PW2, he slapped PW1 only once and he fell. That was the end of that episode.
 After the venture was pulled out of the muddy field and was back on the road, the accused went into the venture. Therein he retrieved a sjambok. The accused hit PW1 once with that sjambok. Pwl ran away. The accused followed in hot pursuit. The two disappeared out of sight into the night's darkness. PW2 also left the scene of the RTA and the alleged crime for his own home.
 According to PW1, he was present when the accused allegedly assaulted the deceased. PW1 was in fact the first person to be assaulted by the accused using his fist and sjambok. The accused punched with a fist PW1 on the face. PW1 did not fall but immediately ran away after receiving the fist on his face. As he ran in that ploughed muddy field, PW1 fell. The accused therefore caught up with him. He belaboured him with the sjambok all over his body - but particularly at the
back of his shoulders. When he had satisfied himself the accused left PW1 and returned to the scene of the RTA where on arrival he assaulted the deceased by banging his head or face against the venture taxi. As he banged his face against the Motor Vehicle he was at the same time strangling him with both his hands around the neck of the deceased. Therefore fingers were in front and the thumbs at the back of the neck of the deceased. When he had satisfied himself the accused let go of the deceased who remained standing there at the Motor Vehicle after just moving back from where the accused was strangling him. Deceased and PW1 appeared to have watched while PW2, the accused and Tsokoliso resumed the exercise of retrieving the accused's Motor Vehicle from the muddy field according to the evidence of PW1.
 OUTLINE OF THE CROWN CASE
The opening statement by the crown counsel shows that the evidence will be led to prove that the accused came to know that his Motor Vehicle was stuck in the field. Together with TSOKOLISO the accused sought and obtained the assistance of PW2 to pull out of the muddy field the accused's Motor Vehicle. On their arrival at the RTA scene, the accused found the deceased and started whipping him and banging his head against the door of the Motor Vehicle.
 DEFENCE CASE - as put by the defence Counsel to the crown witnesses:-
The accused and the conductor of the taxi - PW1 were highly intoxicated on the night in question. Attempts were made to take away the keys of the taxi Motor Vehicle from the decease without success. Despite their intoxication, the driver and conductor continued to work on that Motor Vehicle. In his intoxicated condition the deceased drove recklessly, and as a result lost control of the Motor Vehicle which went off the road and plunged into the muddy field where it was stuck. The deceased could not drive the said Motor Vehicle out of that mud. The conditions were not conducive. It was a dark rainy night. The visibility must have been very poor. Upset by what the deceased and PW1 had done, the accused moderately chastised them. PW1 accepted that moderate chastisement should have been administered but not then and there. They should have been given time to gather their wits or sober up. PW1 does not accept that they were moderately chastised. He claims they were assaulted. But he did not consider that assault serious enough to merit reporting to the police.
 DISCREPANCIES IN CROWN CASE
In assault cases things happen very quickly and sometimes in a very confused and haphazard manner. Minor discrepancies in the description of what happened at what time, must be
expected. To the extent that they can be reconciled, such discrepancies, may be ignored. If the discrepancies are of such a degree that they raise a doubt in one's mind, such discrepancies cannot be ignored. It is probable that the deceased and PW1, were in fact so drunk that they had taken leave of their senses for the greater part of what actually happened? Is it possible that the deceased was asleep or some how blacked out somewhere in the venture taxi or some distance from it, so that he was not aware of the presence of PW2, accused and Tsokoliso at the time they arrived at the scene of the RTA? Where was the deceased at the time PW2, Accused and Tsokoliso fastened the rope to the venture taxi and 4x4 Motor Vehicle of PW2? The deceased suddenly emerged only after the party had carried out the preparations to pull out of the muddy field that venture taxi. Where did he come from? PW1 had left him there but he was not seen by the three men on their arrival at the scene.
 According to PW2, the assault by the accused on the deceased commenced immediately before they pulled out that venture taxi. Pwl had not yet arrived at the scene. Where was PW1 then when he observed the assault on the deceased by the accused in such fine details regarding the positions of the accused's finger and thumbs around the deceased's neck? PW1 in his words he had ran away as far as (9) nine or so metres from the scene of the crime. He had not yet arrived at
the scene according to PW2. He only arrived in the van belonging to the accused after the accused had already assaulted the deceased. It was a dark night. Even though the Motor Vehicle headlights provided some light according to PW2 the accused -chasing after PW1 had disappeared out of sight and light into the night's darkness. According to PW1 the accused banged the deceased's forehead or face against the Venture Motor Vehicle's front door - causing him an injury on the right eye. PW2's evidence shows the court that the accused and the deceased fell together but the accused managed to sit on top of the deceased. As he sat on top of the deceased, the accused punched and strangled the deceased. Somehow without showing how and when the two got up, PW2 continues to indicate how the accused then proceeded to bang the deceased's
head against the Motor Vehicle and at the same time the accused continued to punch and strangle the deceased. PW2 made an abrupt turn in his evidence in order to support the evidence on strangulation. Even though each of these witnesses is adamant that he is telling the court what he actually witnessed, one wonders if they are not imagining what they wished they had seen but unfortunately never happened.
PW1 claims that the deceased and himself were assaulted by the accused. Neither he-PWl nor the deceased reported to the
police or Dr. that they were assaulted. Even at the time they consulted a Dr. - allegedly for the injuries caused by the assault on them, no mention of that alleged assault was made. It is not only by failure to report the alleged offence, but they went further to lie or cover up the alleged assault by pointing out to the Dr. that they were involved in a RTA totally leaving out the assault. That RTA is the reason the Dr. endorsed in the health book of the deceased person as a reason for his need to consult the Dr. PW1 told the court that the failure to report the alleged assault to the police, was brought about by the fact that it was so trivial it did not merit the reporting to the police. Inadvertently PW1 is admitting that they were moderately and justifiably chastised. It is not strange that they went to consult the Dr. in order to check on the seriousness of those injuries and their general wellbeing. But it is very strange to lie to the Dr. regarding the cause of those injuries. Like the witness - PW1 I do even consider that the Dr. maliciously changed the reason for consultation from assault to RTA. I conclude that PW1 and the deceased did not report the alleged assault because they were not assaulted. They did not regard themselves as having been assaulted. If they did consider that they were assaulted, they must have found the assault justified because as employees of their age, they regarded their employer as standing in place of their parents. They definitely concluded that they had wronged him and merit some sort of punishment for that. That is why in
order to avoid punishment they agreed to get, without the accused's knowledge, one of his Motor Vehicles to use in order to retrieve the venture taxi. That is why PW1 expressed shock when he found the accused at the scene when he returned in the accused's other Motor Vehicle. He wondered who could have informed the accused. It is apparent that the accused was not expected to know what the deceased and PW1 had done to his Motor Vehicle.
 In view of all the discrepancies and anomalies in the crown case, is there a prima facie case made against the accused? The evidence led is so patently unworthy of credit that a reasonable man or woman acting carefully might not convict. R v MATETE and Others 1977 LLR 262 at 281. The crown would like this court to accept that the accused killed the deceased by strangling him to death. This suggestion seems to have emanated from the post-mortem examination report which shows the cause of death as being "due to lung congested and ganosed probably due to strangulation". (Refer to Exhibit 4)
 The author of that post-mortem examination report testified before this court. He described strangulation as used by him in that report as indicating the acuteness of the ailment which caused the deceased's death. That means an ailment came sharply and severely to a crisis. The congested lung is full of
blood or mucus which hinders free flow of air. Strangulation means preventing blood or air from circulating freely in that part of the body which is strangled. CONCISE OXFORD ENGLISH DICTIONARY, Tenth Edition-revised. The deceased was according to PW1 and 2 strangled approximately at 10.30 p.m. or thereabout on the 9th December 2000. No blood or air should have circulated through his neck area at the time of the alleged strangulation. This being an acute ailment as the Dr. described it, the deceased should have dropped dead then and there at the time of the alleged strangulation. He did not. The facts shows that he ate, talked and behaved normally in general. Days passed. He was only admitted unconscious at the Hospital on the 24th December 2000.
 The deceased was allegedly assaulted on the 20th December 2000. He went to consult a Dr. on the 21/12/00. Consultation was done in private. The Health book, the only witness who was present therein, shows the reason for the cause of injuries as being RTA. The right eye which was injured had vision. Because of the wound on the lower lip, the deceased was referred to the dental expert or specialist. The lip was sutured. Deceased was treated as an out-patient. This should not have been the case if he was at the hospital because of the strangulation by the accused as alleged.
Strangulation is an acute ailment. He was advised to return for the removal of those stitches five days later.
 On the 24th December 2000, the deceased was admitted unconscious at MOKHOTLONG GOVERNMENT HOSPITAL.
His blood sugar was very low - 2.4. Despite treatment, including introduction of glucose directly into his circulatory system, the deceased never responded positively to that treatment. He was transferred to Queen Elizabeth II Hospital Maseru for farther and better treatment. He received the same but to no avail. He sadly passed away on the 9th January 2001. It was suggested that the deceased suffered from chronic headaches and as shown in his "Bukana ea Bophelo" the deceased suffered such a chronic headache in July 2000. Even though the accused should take his victim as he finds it, there is no connection between the accused's alleged actions of assault and the death of the deceased.
 The evidence points at the variety of likely cause of the deceased's death. There is no possibility of finding that the accused is responsible for the cause of death of the deceased. In the circumstances, it serves no good purpose to put the accused to his defence which as the duty of the cross examiner - (defence counsel) demands, was fully put to the crown witnesses FATSO LEHLEHLA v REX C of A (CRI) NO.3/03. There was not case made out against the accused.
 SECTION 175 (3) CRIMINAL PROCEDURE and EVIDENCE ACT 1981, empowers the court where there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted, to return a verdict of NOT guilty. The proper meaning of this section is to the effect that there is not need to put the accused to his defence when there is no case to defend. The meaning of this section was enhance in R v MATETE and Others (Supra). The opening statement by the crown counsel rings warning bells for the accused. From the opening statement the accused is given a clear picture of the case against him. He expects the evidence led to support the avernments made in the opening statements. If the evidence adduced does not support the opening statement it is not the responsibility of the accused to reconcile, adjust and/or make out a case against himself in anyway.
If there is no prima facie case made against him, the accused is entitled to a discharge. The accused is found not guilty and he is discharged.
My brothers assessors agree with the fact finding in this case.
Assessors - Messrs: Ntsoele and Kolobe
For Crown: Ms. Motinyane
For Defence: Mr. Molapo