IN THE HIGH COURT OF LESOTHO
In the Matter Between:
Delivered by the Honourable Mrs Justice A. M. Hlajoane on the 17(h March,
The Accused Fatso Lehlehla appeared before this Court summarily charged with the crime of murder, it being alleged that he intentionally and unlawfully killed Machababa Khauta upon or about 26th day of August, 2000 and at or near Semenanyane in the district of Thaba Tseka. After the charge had been put to him, the accused pleaded not guilty and the Mr Teele for the defence showed that the plea was in accordance with his instructions.
Before dealing with the formal evidence that was led in this case I am going to touch on the five pieces of admitted evidence. The first statement labelled Exh "A", was a ballistic report by the firearm examiner, Senior Inspector Mothibeli, attached to the Forensic Ballistics Section of the Police Technical Support Services, having been trained in what he called the microscopic examination of fired bullets and cartridge cases and other related items. On examining the pistol, a 9mm pistol on the 5th December, 2000 he found it in good working condition, but was not able to determine whether it had previously been fired or not.
The second exhibit, Exh "B" was the identifying statement of Seleka Qokolo aged 50 years. Seleka, after receiving the report of deceased's death, proceeded to the scene where he identified the body of the deceased Machababa Khauta. This was before the Police took the body to the mortuary. He observed one wound on the stomach. In the presence of the Police, Seleke once again identified the body of the deceased before the doctor performed a post-mortem examination.
Exhibit "C" is a statement by Lakabane Tlhola, who was sent out by the headman of deceased's village, to join the Police when the accused was going to point out the firearm he had used. The group had proceeded near accused's grandfather's residence where the accused from the mountain aloe took out the pistol which he handed over to the Police.
Exhibit "D", the summarised statement by Khoali Leema who received the report from P. W. I Tlontlollo Ramoalosi about the death of the deceased on the 26th August, 2000 at around 7. 00 p. m.. Following that report he gathered a number of
villagers to attend the scene of crime. The crowd did find the deceased fallen on the ground and Khoali reported the matter to the Chief, Tsokelo Ramoalosi. They stayed there at the scene until the Police came to transport the dead body to the mortuary.
Exhibit "E" was the post-mortem report which was handed in by consent in terms of Section 223 (i) of the Criminal Procedure and Evidence Act 9 of 1981, as the doctor has since left the country for his home in Austria. The report showed that death was due to a penetrating abdominal gun shot wound. So far so good with the admitted evidence.
The evidence of P. W. I, Tlontlollo Ramoalosi was that, he knew the accused well, as men from the same area. Accused stayed at Makhuleng whilst the witness stayed at Methalaneng. The witness told the Court that on the 26th August, 2000 he together with the deceased were from Makhuleng and met the accused on the way near Semenanyane river. The accused was on horseback and he asked the deceased if he was Qoqolo, but even before the deceased could answer, the accused shot him. The accused was still on horseback as he asked and shot the deceased.
The witness further showed that as he went back to where the person shot was he asked the accused as to why he shot at that person (deceased), but there was no reply, instead, the accused got off his horse and went to the person shot and together they helped the deceased. As they were helping the deceased accused indicated that he was not aware that he would shoot the deceased.
The witness raised an alarm and people came to the scene including the Chief. The accused then mounted his horse and left. Deceased could no longer talk. The witness further showed that the accused later came and went passed the crowd taking the direction to Methalaneng where he was coming from before the shooting. It was P. W. 1's evidence that the accused had fired twice. The Police visited the scene the following day and inspected the place. According to this witness the first shot was the one which hit the deceased, but with the second one the witness could not see where accused had aimed. Before the Police came no one had touched the deceased. The dead body was taken away by the Police after it was examined. The witness identified the gun before Court as the one which the accused had on that day.
Under cross examination the witness showed that he was not aware of any bad blood between the accused and the deceased. Their relationship was a neighbourly kind of relationship, also with the witness. The witness showed that he owned livestock as a farmer, but that deceased had no livestock. Deceased earned his living by selling sieves and home made stoves (Paola). On that day, as neighbours, the witness and the deceased had gone out to collect money owing to the deceased by people he had sold his stock to.
The witness had explained that he had just checked his watch to see that it was 6. 00 p. m. before the events took place. He showed that it was still light. It was under cross examination to this witness that the accused put his side of the story to the Court, that in fact he was on his way from ploughing his fields at Methalaneng when the two men stood on his way and demanded him to get off his horse as they needed that horse. This was denied by the witness.
The accused further put to the witness that the two men then started shooting at him and that he had to come down his horse as he realised that he was an open target. The accused then shot back at his assailants. The witness here showed that the accused was the only one with a pistol. The cross examination also revealed that the witness in his statement to the Police had shown that the accused had also tried to shoot him but missed him (P. W. I). Also that the accused after shooting did not bother to assist the deceased. Again that the chief arrived after the deceased had passed away.
But before this Court the witness never mentioned that he was missed by a bullet from the accused. Instead, the witness showed that he did not know where the second bullet was aimed at. He also showed that the deceased died after the chief had arrived. The witness still confirmed in Court that the accused attempted to shoot him also.
P. W. 2 D/Tpr Kobile, a Police Officer who visited the scene of crime following the report he received. He visited the scene the day following that of the incident. The report had shown that there was a dead body at Semenanyane river. He visited the scene with Tpr Macheli. He found the dead body on the ground and people had already gathered there.
On examining the body, he discovered an open wound on the left side of the stomach, and another wound on the right hip. The witness explained that the wound on the hip was an exit wound to the one on the stomach. Near the dead body the witness found two 9mm bullet shells, and those were the only shells he discovered at
the scene. P. W. 2 handed over the shells to D/Sgt Molelle who has since passed away. The witness had not found any gun at the scene. The witness showed that he last parted with ihose two shells when he gave them to D/Sgt Molelle. The shells could therefore not be produced before Court as the person in whose possession they were has passed away. The witness together with one Macheli transported the dead body in Police van to Paray Mortuary.
Under cross examination it came out that from a report by one Sematlane of Technical Department of Police, the witness indeed handed over the gun to Mothibeli but gave the cartridges he had picked up at the scene to Molelle. It was the same witness who took the gun in this case for ballistic examination leaving the shells behind. His response to the question asked about leaving the shells behind was that he was not aware that the guns he took for ballistic examination also included the one used where he was or had been in the investigating team.
On further cross examination, the witness pointed out that when he so took the said guns for examination he was for their record given an already filled form. That means, he was not the one who filled in the information relating to the weapons he took for examination. According to him, he would only sign for such weapons as a proof that the information corresponded with the weapons given, and the names of suspects, when handing over the weapons at the Forensic Ballistics Section. He was in fact not even aware that the gun in question was amongst the ones he took for examination. The witness concluded by showing that he did not find anything in the person of the deceased as he searched him.
P. W. 3 D/Tpr Letsema told the Court that he was not the one who arrested the accused in this case but had found the accused at the Charge Office already under arrest. He had surrendered himself. The witness was only instructed to escort the accused to Makhuleng. When they got there the accused took out a 9mm pistol from under some stones in an unfinished house. He showed that the gun was hidden under those stones. The gun was still loaded with 3 rounds and the accused handed it over to the witness.
P. W. 3's investigations did not reveal the cause of the shooting. The witness had been accompanied to the accused's house by the headman by the name of Lakabane. The witness identified the pistol and 3 rounds which were before Court and were collectively handed in as exhibits and were marked as such. The accused was then cautioned and charged of murder. The pistol which has since been kept in Police custody was taken for ballistic tests and the report given back to the witness.
Under cross examination, the witness pointed out that P. W. 2 other than being a scene of crime officer, was also the investigator in this case. The witness explained the procedure to be followed when taking exhibits for ballistic tests. The person taking those exhibits for test would have to fill in some forms. He explained the information contained in those forms, being the kind of gun, its serial number, live bullets therein and the number of shells if any. The R. C. I (Record of Criminal Investigations) number would also be reflected but not the name of the suspect.
The witness admitted that he only escorted the accused to his home when going to point out the gun he had used. According to this witness the pistol could not have
been token for ballistic examination without the cartridges. The witness concluded by showing that the accused refused to give him any explanation.
After the close of the crown case, the accused person went into the witness box and gave his evidence. He told the Court that he lived at Makhuleng but that on the day in question, the 26th August, 2000, he had been ploughing at a place called Methalaneng, a place estimated at 45 km away from accused's home. To get to Methalaneng the accused mounted his horse.
The accused told the Court further that after he had crossed Semananyane river and just about to disappear from the village and join the road to Makhuleng he met two men. The two men started shooting and one of them ordered him to get off his horse. The horse got frightened and ran away. He controlled the Horse and managed to alight from it. The horse ran away thereafter. The two men continued shooting. The accused then took out his gun and started shooting. He fired 5 shots. The accused approached his horse to soften it and later rode back to his home. When he got home he reported to his Chief.
In his evidence the accused denied ever asking if one of those two men was Qokolo. He showed he could not even identify those men as it was dark. He also denied handling the deceased after he was shot because he was not even aware that he had shot him. The deceased was the person whom he knew but could not only identify because of darkness. Accused showed that there was no bad blood between him, deceased and P. W. 1. He ended his evidence by showing that P. W. 3 never asked him for any explanation and that it was not true that the firearm was found under the
-9-stones but that admitted evidence was to the effect that it was found in the aloes.
Under cross examination the accused showed that he was only about 10 paces away from the two men when they asked him to get down from his horse. The accused and his horse were not hit by any of the bullets from the two men. According to the accused, though he did not have a watch he indicated that it was at about 7. 00 p. m. when he arrived from Methalaneng to Makhuleng. The accused came to know of the deceased's death the following day as he was going to his fields, and it was then that he came to know that they were the two men who attacked him the previous day. The accused showed he had reported the matter to the Chief the same evening of the shootings.
The accused had mentioned in his evidence in chief that he came down from his horse and the horse ran away. Under cross examination the accused explained that the horse had run for a distance of 200 metres (estimated) after he alighted from it. Accused responded to a question as to what could have prevented the deceased and P. W. I from taking the horse when it had run away, that it was because he too was shooting in their direction.
It came as a surprise to the accused that only two shells were found at the scene as according to him there had been an exchange of firing from both sides. He concluded by saying that the Police were the ones to tell why they handn't picked up all the shells at the scene. When he was told that in fact the Police were the ones who showed they found only two shells at the scene, he responded by saying it was a lie.
In his own words the accused showed that as he went in the company of the Police and the representative of the Chief to point out the gun he used, he took out the gun from amongst the mountain aloes in his yard where he had kept it. His explanation for putting the gun there where it was found was that he had put it there so thai he could collect it when asked to produce it. Accused showed that he did not envisage the gun being asked for by the Police but had kept it away from the herdboys, as he had kept it there for safe keeping. He had not surrendered the gun to The Police but was asked by the Police to bring the gun he had used.
In addressing the Court, the Crown submitted that on the facts of this case the accused's story could not reasonably, possibly be true particularly considering that the accused is pleading self defence. The accused's story had been that he had met some two men who ordered him to dismount his horse and started shooting at him. The horse he was riding on was frightened and got out of control and ran away. He had by this time dismounted the horse as he could see that he was an open target.
The question then to be asked would be, why did the deceased and P. W. 1 not use the opportunity of stealing the horse if at all they wanted to steal it from him, at the time it had run astray? Accused said it was because he too fired back at them. According to the accused, it would seem that both P. W. I and the deceased were armed. The accused seemed to have overpowered the so called two thieves by even killing one of them with his gun, but neither the accused nor his horse got injured in the shooting process; very surprising.
Accused had told this Court that he had fired five times whilst P. W. I on the
other side indicated that accused fired two shots, the first one hitting the deceased on the stomach and the second shot just fired aimlessly. P. W. l's evidence on the question of the number of empty shells found at the scene was corroborated by that of P. W. 2, who showed that he picked up two empty shells from the scene. If there had been an exchange of firing as the accused told this Court, obviously more shells could have been found at the scene. The allegation by the accused of firing five times could therefore not be true as more shells were not found but only two found by P. W. 2. The version of the Crown witnesses sounded more probable than that of the accused, as even only one pistol had been discovered. No gun was ever found with the deceased person.
The accused pleaded self defence which is a complete defence if successfully pleaded. According to Rex v Poqa 1979 (1) LLR 161, this defence is merely a kind of necessity. It is resorted to when one is confronted with a choice between suffering some evil and breaking the letter of the law in order to avoid it, the accused would choose the latter alternative. For this defence to excuse criminal liability, it must be directed against the attacker, out of necessity to avert the attack, and the means used must be reasonable in the circumstances. I have already indicated that the established facts are not in favour of the accused's story as regards the number of shells found at the scene and the firearm that was found and exhibited before this Court.
The accused had alleged that he had fired five shots but only two shells were found at the scene. The number of shells found at the scene tends to confirm as true the Crown's version that the accused had fired two shots, one of them killing the deceased. No other shells were found.
It was shown in the case of S v Mtsweni 1985 (1) SA 590 that, it does not necessarily follow that because an accused person gave untruthful evidence or a false statement he therefore is probably guilty. Before coming to such an extreme conclusion, there must be other considerations to be taken into account, like the nature, extent and materiality of the lies and whether they necessarily point to a realisation of guilt, or that in a given situation a lie might sound more acceptable than the truth. Again in some people they deny the truth out of fear of being held to be involved in a crime as their admission of their involvement in an accident or crime would lead to the danger of an inference or participation and guilt out of proportion to the truth. The accused only faked an intentional shooting in an effort to steal his horse for what otherwise was an accidental shooting as the former might sound more acceptable.
In our present case, I have already shown that the story of P. W. 1 sounded more probable than that of the accused in that, the shooting of the deceased could be considered as an accidental firing of someone who played with his gun without any intention to kill. There had been no bad blood between the accused, deceased and P. W. 1 prior to the shooting or any exchange of insulting words.
The accused only asked if deceased was Qokolo and then fired twice. I am inclined to believe the story of P. W. I that accused even came down his horse and assisted the deceased after the shooting, and even remarked that he was not aware that he was going to shoot him (deceased). I have rejected the accused's story that the deceased and P. W. 1 wanted to steal his horse as there had been ample opportunity for them to have taken the horse away if indeed they wanted to. The two of them against
only the accused. The story that both deceased and P. W. 1 were armed and even fired several shots against the accused but none of those shots managed to hit either the accused himself or his horse also deserve to be rejected as being devoid of any truth. P. W. 1 has been very fair on the accused in that he did not want to implicate him by saying he intentionally shot at the deceased but instead made it clear that it was an accidental shooting.
I have earlier on in this judgment shown that untruthful evidence or a false statement should not always justify the most extreme conclusion and this is one such a situation where it must be guarded against. The accused thought that his lie might sound more acceptable than the truth, that what was actually wanted was his horse. The accused might have had a fear that in telling the truth of an accidental firing would lead the Court in believing in him being involved in a crime.
Unlike in the case of R v Tsepiso Sello 1985 - '90 LLR 370, where accused's claim of an accidental firing of a gun was rejected as he had concealed some of the important facts, most importantly accused having used a false name in his relations with the deceased who was his lover. In our case, after analysing the evidence as a whole the story of an accidental firing sounded to be the only reasonable conclusion to be drawn under the circumstances of the case. As we know, in law "a person intends to kill if he deliberately does an act which he in fact appreciates might result in the death of another and acts recklessly as to whether such death results or not", S v Mini, 1963 (3) S. A. 188 at 192.
The Crown having succeeded to negative the defence of self-defence through evidence placed before this Court, but having failed to prove intention to kill beyond a reasonable doubt, I therefore find the accused guilty of culpable homicide, as death resulted due to his negligent conduct.
My assessors agree with this finding.
The Crown informed the Court that the accused is a first offender and in mitigation of sentence the defence counsel prayed for leniency on behalf of the accused who is only aged 38 years with six children. The oldest aged 15 years and the youngest 4 years old. The accused being a subsistence farmer after he was retrenched from the mines in RSA. The accused had shown remorse in that he even attempted to assist the deceased on realising that he had been injured. Accused has been very cooperative with the police on his arrest and finally with the Court on dates of hearing of his case.
In passing sentence the remarks in the case of S v Makhele 1994 (1) SACR at 7 (o) are incorporated, "that sentencing as a general perception is the sole responsibility of the presiding Judge".
The Court having taken into account the mitigating factors presented before it and the circumstances surrounding this particular case, and having given thought to
the concerns by Nicholas AJA in the case of S v Dlamini 1991 (2) SACK 655 (A) when he says:
"It has been observed that, whereas criminal trials.........are conducted up to the stage of conviction with scrupulous, time-consuming care, the procedure at the sentencing stage is almost perfunctory. "
The Court passes the following sentence;
the accused having been convicted of culpable homicide, is sentenced to a term of 8 years imprisonment of which half is suspended for a period of three years, on condition that during the period of suspension he is not convicted of a similar offence, involving violence to the person of another resulting in the death of another human being.
For the Crown: Mr Seitlheko
For the Accused: Mr Teele