R v Moholei (CRI/T/31/2002 )

Case No: 
CRI/T/31/2002
Media Neutral Citation: 
[2003] LSHC 38
Judgment Date: 
28 March, 2003

Downloads

CRI/T/31/2002

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

vs

'MAMOHOLEI MOHOLEI


JUDGMENT


Delivered by the Honourable Mr. Justice B.K. Molai on 28th day of March, 2003


The accused is before me on a charge of murder, it being alleged that on or about 20th August 2000 and at or near Tsenola, in the district of Maseru, she unlawfully and intentionally killed 'Mamotlatsi Maipato. When it was put to her, the accused pleaded not guilty to the charge. Mr. Mahase, 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.


Nine (9) witnesses were called to testify in support of the crown case. The defence did not call any witnesses to testify on behalf of the accused. However, the accused herself went into the witness box and gave evidence in her defence.


2


In his testimony P.W.5, Trp. Matsoso, told the court that he was a member of the Lesotho Mounted Police Service stationed at Mabote Police Post, on the outskirts of Maseru. He remembered that, on 20th August 2000, he was at his duty station when he received a certain information, over the telephone. Following that information, he proceeded to a place called Sehlabaneng, in the village of Tsenola. He was in the company of Tpr Matsipa and they were travelling in a police vehicle.


On arrival at Tsenola, P.W.5 found many people already gathered around a dead person who was identified to him as the deceased whose name he no longer remembered. He proceeded to examine the deceased for injuries and found that she had sustained a stab wound on the chest. She was also bleeding through the mouth.


According to him, P.W.5 was shown the accused as the person who had fought with the deceased. He introduced himself to the accused and cautioned her. Thereafter the accused gave him an explanation as a result of which he arrested and charged her with the crime of murder, as aforesaid. When P.W.5 asked her for the weapon she had used to stab the deceased, the accused could not find it at the scene of crime. He then conveyed the accused and the dead body of the deceased to Mabote Police Post and the mortuary of Queen Elizabeth II hospital, respectively.


P.W.8, Tpr Leleka, testified that he was a member of the Lesotho Mounted Police Service based at P.T.C. (Police Training College). However, in August 2000 he was stationed at ha Mabote Police Post and attached to the C.I.D. One


3

morning in August 2000 he reported for work at his duty station (Mabote Police Post) where he found the accused. He was detailed to transport the accused, in a police vehicle, to her home where she had to produce a knife.


On the way, P.W.8 and the accused met a certain Lebohang Moholi who stopped their vehicle and explained that he was taking a knife, which he had found on a bed, to Mabote Police Post. According to him, P.W.8 took the knife from Lebohang Moholi and showed it to the accused who said it was the knife she had used in her fight with the deceased, on the previous day. On examining it, P.W.8 observed that the knife was a brown press button type of a knife and had blood stains on its blade. He took possession of the knife which had since been in the police custody. P.W.8 handed the knife as exhibit "1" and part of his evidence in this trial.


It is common cause that a medical doctor examined a dead body of a woman at the mortuary of Queen Elizabeth II hospital, here in Maseru. He compiled a post-mortem examination report which was, by consent of the parties, handed in, from the bar, as exhibit "A".


According to Exh. "A", on 22nd August 2000 and at the mortuary of Queen Elizabeth II hospital, a medical doctor performed an autopsy on a dead body of a female African adult. The dead body was identified before the doctor, by Thobehi Molalle, as being that of Mamotlatsi Maipato.


It may be mentioned that Thobehi Molalle testified, before this court, as P.W.3 and said the deceased was a daughter of the elder brother of his father. She was, therefore, his sister by their families and had no difficulty in identifying her


4


dead body before the post-mortem examination was conducted.


Returning to exh. "A", the external examination revealed that the deceased had sustained a single stab wound on the 2nd inter-costal space of the right side of her chest. On opening her body, the doctor found that the deceased had massive haemothorax with the resultant collapse of the lung. From these findings the medical doctor formed the opinion that death was due to the stab wound which had been inflected on the deceased.


I can think of no good reasons why the opinion of the medical doctor that the deceased had died as a result of the injury that had been inflicted upon her should be doubted. The important question that arises for the determination of the court is whether or not the accused is the person who inflicted the injury on the deceased and, therefore, brought about her death. In this regard the court heard the evidence of P.W.9, 'Mabokang Ncheke, who testified that she lived in the village of Tsenola. She knew the accused and the deceased, in her life time. The accused and the deceased were her co-villagers.


In her testimony P.W.9 further told the court that, on 20th August 2000, she had attended a political rally from where she and the deceased returned home at about 5pm. When they came to Tsenola bus stop, P.W.9 and the deceased first went to the latter's house, in the village. After the deceased had placed, in her house, the things she had been carrying, the two proceeded to P.W.9's house, in the village. As the deceased and P.W.9 approached the latter's yard, P.W.9 noticed that the accused was following them. P.W.9 and the deceased started chatting with the accused. When she came to the forecourt of her house, P.W.9 noticed that only the deceased had entered into her (P.W.9's) yard. The accused


5


was walking on the upper side of her (P.W.9's) yard in the direction towards her (accused's) own yard. However, when she came to the corner of P.W.9's yard, the accused stopped and continued chatting with the deceased and P.W.9. Eventually P.W.9 unlocked the door of her house and entered inside. Before she could actually enter into the house, P.W.9 noticed the accused leaving the corner of her (P.W.9's)yard and coming towards the deceased who remained standing at the stoep, on the forecourt.


Inside the house P.W.9 put on fire in the stove and then returned to the deceased and the accused outside the house. She, however, stood at the door and continued chatting with them. In the course of their chat, P.W.9 notice one 'Mamonyamane Motsamai coming towards her house. She (P.W.9) then returned into her house to change the clothes she had been wearing. However, before going into the house to change the clothes she had been wearing, P.W.9 heard the accused inviting the deceased to pay her a visit at her (accused) house. The deceased declined the invitation saying she was, at the time, visiting her (P.W.9).


P.W.9 further told the court that, whilst she was changing her clothes in the house, she heard Mamonyamane Motsamai calling out: '"M'e 'Mabokang (P.W.9) my paternal aunt Evodia (accused) is pulling away 'Mamotlatsi (deceased)." According to her, P.W.9 then went to the door of her house from where she could notice the accused and the deceased, at the corner of her yard. The accused was pulling away the deceased who was struggling to free herself from her (accused's) grip. They were going in the direction towards the accused's home. When she saw that, P.W.9 returned into the house, put off the fire on the stove and went outside. The accused and the deceased were then on the upper side of her (P.W.9's) yard. The accused was still pulling away the deceased who was trying


6


to free herself. They were with 'Mamonyamane Motsamai who was attempting to stop the accused from what she was doing to the deceased.


At first P. W. 9 thought the accused and the deceased, who were friends, were playing. However, she noticed the accused hitting the deceased a blow with an open hand. It was then that she realised that the two were, in fact, fighting. P.W.9 went to where the accused and the deceased were fighting and intervened by standing between them but the accused pushed her away so violently that she fell to the ground.


From where she had fallen, P.W.9 noticed 'Mamonyamane Motsamai getting hold of the accused. As she caught hold of her 'Mamonyamane Motsamai asked the accused what she was doing and whether she wanted to be hit by her. At that time P.W.9 told the deceased to unpin her blanket so that the accused might not strangle her with it. The deceased complied. P.W.9 then noticed the accused taking out a knife from her breasts. She (accused) then charged at the deceased, pulled away her blanket which she threw to the ground, and hit the deceased a blow with a fist. It was the fist of the hand with which she (accused) had taken out a knife from her breasts. P.W.9 then rushed and caught hold of the accused's hand which was holding the knife and tried to disarm her of that weapon. She could not succeed to disarm the accused because the blade of the knife was what was appearing out of her (accused's) hand.


According to P.W.9 whilst she was struggling with the accused in an attempt to dispossess her of the knife, the deceased left and returned to her (P.W.9's) house. P.W.9 then asked the accused what she and the deceased were doing at her place and what she thought her (P.W.9's) husband would say when


7


he arrived. In reply the accused told her (P.W.9) that she too was in the line. She did not understand what the accused meant by that. However, she left the accused and returned to her house.


When she came to the forecourt of her house, P.W.9 noticed that the accused and 'Mamonyamane Motsamai were following her. She told them to leave her place. 'Mamonyamane Motsamai then said: "'M'e 'Mabokang and 'M'e 'Mamotlatsi, enter into the house." According to her, P.W.9 told 'Mamonyamane Motsamai that she would not enter into the house leaving her and the accused outside her house. She pleaded with the accused and 'Mamonyamane Motsamai to leave her place. They did not leave. Instead the accused went to the deceased, who was just standing on the forecourt, and delivered a blow on her chest with what P.W.9 thought was a fist. However, when the deceased cried out '"Mabokang look I am bleeding, please stop this blood" P.W.9 realised that the accused had, in fact, stabbed her on the chest with a knife. When P.W.9 went to the deceased, 'Mamonyamane Motsamai said "Mabokang call people; call Ntate Khotso."


According to her, P.W.9 then sent her child to go and call Khotso. She herself held the deceased who, however, tried to go into her (P.W.9's) house. As she noticed that the deceased was bleeding profusely, P.W.9 told her not to walk into the house. The deceased again pleaded with her to stop the bleeding. Not knowing what to do, P.W.9 held the deceased on the shoulder with her left hand whilst placing her right hand on the chest where the blood was coming out. However, the blood kept on flowing out from the deceased. When she noticed the blood flowing over her hand on to her dress, P.W.9 left the deceased telling her that she was going to fetch Khotso. As she walked out of the forecourt of her


8


house, P.W.9 realised that the deceased was following her saying "Mabokang, look how the blood is flowing out now.1' When P.W.9 looked back at her, the deceased coughed and, as she did so, the blood sprang out from the wound on her chest. P.W.9 turned away from the deceased and hurried towards the home of Khotso, in the village.


However, when she got out of her yard, P.W.9 noticed Khotso coming from the direction of his house. At that time P.W.9 heard the deceased calling out " 'Mabokang, do you know that I am going to die?" As Khotso was already close to the deceased, P.W.9 ignored what she (deceased) was saying and hurried towards her (deceased's) home, on the upper part of the village.


On her way to deceased's home, P.W.9 met her husband who was returning home from the political rally and reported to him what had happened. Her husband then hurried in the direction towards where she (P.W.9) had left the deceased. P.W.9 herself continued on her way to the deceased's home, on the upper part of the village. At the deceased's home P.W.9 reported what had happened to the deceased's tenant.


From the deceased's home, P.W.9 met the accused's elder sister and reported to her what had happened. Thereafter, P.W.9 returned to where she had left the deceased. She was then in the company of the accused's elder sister and the deceased's tenant. On the way, they met the accused who was going towards the upper part of the village. Her elder sister spoke to the accused and told her it was disgraceful if she had killed the deceased. She asked the accused whether she would bring up the deceased's minor children. The accused had no answer to what her elder sister said to her. She, however, returned and joined them on the way to


9


where P.W.9 had left the deceased.


On approaching the spot where she had left the deceased, P.W.9 heard one of the villagers saying "Oh God, she is finished." She then decided not to go to the spot where a large crowd of villagers was standing around the deceased. Instead, she went straight to her own house. P.W.9 did not, therefore, actually see the dead body of the deceased.


P. W.6, 'Mamonyamane Motsamai, testified that she lived in the village of Tsenola. The accused was the younger sister of her mother. She, therefore, knew her. She also knew the deceased, in her life time. The deceased was her co-villager.


P.W.6 told the court that, on the late afternoon of 20th August 2000, she proceeded to the home of the accused intending to borrow some money from her. On the way to her home, she noticed the accused, outside P.W.9's home. She (accused) was with the deceased. According to her, instead of going to accused's home, P.W.6 decided to go to the accused, at the home of P.W.9. When she approached them, outside the home of P.W.9, P.W.6 noticed that the accused and the deceased were pushing each other. As she did not know whether they were playing or fighting, P.W.6 asked the accused and the deceased whether they were fighting. The accused replied that they were not fighting. However, P.W.6 noticed that as they pushed each other, the accused and the deceased were exchanging blows with fists. She again asked them whether they were fighting. Once more, the accused told her that they were not fighting and ordered her to go away. P.W.6 went into the house where she reported to P.W.9 that the accused and the deceased were fighting outside the house. P.W.9 did not go outside.


10


According to her, P.W.6 left P.W.9 inside the house and returned to the accused and the deceased, on the forecourt. She picked up a stone with which she pretended to hit the accused. She did so because the accused appeared to be the more aggressive of the two combatants. However, the accused hit her (P.W.6) a blow with an open hand. When she was thus hit the blow with an open hand, P.W.6 fell to the ground.


Thereafter, P.W.6 went into the house and, for the second time, reported to P.W.9 that the accused and the deceased were fighting outside the house. P.W.9 did not respond to what she (P.W.6) had reported to her. P.W.6 then returned to where the accused and the deceased were fighting outside the house. She caught hold of the accused who, however, pushed her away so violently that she let go of her (accused). P.W.6 returned to the two combatants and again pushed the accused away from the deceased. It was then that she (P.W.6) realised that the accused was holding a knife. She did not know where the accused had obtained the knife from.


When she saw the accused holding the knife, P.W.9 went inside the house and for the third time, reported to P.W.9 that the fight, was then taking a serious turn. P.W.9 neither went out nor said anything.


It is to be observed that although in her evidence P.W.6 told the court that, on several times, she went into P. W.9's house and reported to her that the accused and the deceased were fighting outside, P.W.9 neither went outside nor said anything, that was denied by P.W.9 according to whom as soon as she heard P.W.6 saying the accused was pulling away the deceased, she went out and intervened. To that extend there was, therefore, a discrepancy in the evidence of P.W.6 and


11


P.W.9. However, the discrepancy is of no significance because, as it will become clear, later in the judgment, the accused does not dispute that she and the deceased did have a fight at the home of P.W.9 on the day in question, 20th August, 2000.


Be that as it may, P.W.6 went on to tell the court that when P.W.9 failed to respond to the reports she made to her, she (P.W.6) decided to go to Khotso and report that the accused and the deceased were fighting and a knife was being used. When she came to the home of Khotso P.W.6 found that he was not in. She then proceeded to her parental home, in the village.


On the way to her parental home, P.W.6 noticed that P.W.9 was following her. She (P.W.6) did not wait for her (P.W.9). Shortly thereafter she, however, met P.W.9's husband and reported to him that the accused and the deceased were fighting at his home. He did not reply. Instead, he talked to P.W.9 who was crying. She heard P.W.9 telling her husband that the accused had already stabbed the deceased with a knife. P.W.9 and her husband then went in the direction towards their home, a fact which was, however, denied by P.W.9 according to whom only her husband went in the direction towards their place. She herself continued on her way towards the upper side of the village.


P.W.6 told the court that having reported, what had happened, to P.W.9's husband, she continued on the way to her parental home. On arrival at her parental home P.W.6 did not find her mother in. She then proceeded to her own house, in the village. She found her mother-in-law and reported to her what had happened. Shortly thereafter, P.W.6's own mother, who was already crying, arrived and confirmed what she had heard P.W.9 telling her husband viz. that the accused had stabbed the deceased with a knife.


12


Andreas Khotso testified as P.W.7 and told the court that he knew the accused and the deceased, in her life time. They were both his co-villagers at Tsenola. On 20th August 2000 he was at his home repairing the roofs of his house when P.W.9's child came to him and reported that she (P.W.9) was asking for his help as the accused had stabbed the deceased with a knife. According to him, P.W.7 immediately left for P.W.9's home. Before he could actually reach the place, P.W.7 met both P.W.9 and the deceased who were already on their way to his place.


According to him, P.W.7 noticed that the deceased was bleeding from the mouth, nostrils and the chest. He immediately attended to the deceased and stopped the blood that was flowing from a wound on the left side of her chest. After P.W.7 had stopped her bleeding, the deceased said she was feeling tired. He (P.W.7) then assisted the deceased to a sitting position and covered her with a blanket. When he thus covered her with the blanket P.W.7 was, however, not aware if the deceased were already dead. According to him, P.W.7 noticed, at that time, that a large number of people had already gathered at the scene. Later on, the police arrived and carried the deceased away. He himself did not accompany the deceased when she was carried away by the police.


P.W. 1, Thabang Ncheke, testified that he lived at Tsenola and P.W.9 was his wife. He knew the accused and the deceased, in her life time. They were his co-villagers.


According to him, on Sunday, 20th August 2000, P.W.1 had attended a political rally from where he returned home at about between 5 p.m. and 6 p.m. When he was about 500 metres away from his house, P.W.1 met his wife (P.W.9)


13


who was crying. He enquired what the matter was and P.W.9 told him that the accused had stabbed the deceased with a knife, at his home. He immediately left P.W.9 and rushed towards his home. When he was about 10 metres from his house, P. W. 1 found the deceased who was seated and bleeding from the left side of her chest. He tried to hold the deceased so that he could stop her bleeding but the deceased vomited a lot of blood. He then left the deceased and ran to the home of one of the neighbours to find a vehicle. When he returned with the vehicle P. W. 1 found that the deceased was already dead.


It is to be recalled that, in his testimony, P. W.7 told the court that he was the one who first met the deceased on the way and stopped her bleeding. His evidence is, in a way, corroborated by P.W.9 who told the court that when she met P.W. ] and reported to him that the accused had stabbed the deceased with a knife she had already noticed that P. W.7 was closed to the deceased. Assuming the correctness of the evidence of P.W.7 and P.W.9, P.W.1 could not, in my view, be testifying to the truth in his evidence that he was the one who stopped the bleeding of the deceased.


Be that as it may, P.W. 1 went on to tell the court that, after he had found the deceased on the way about 10 metres from his house, he telephonically reported to the police at Mabote Police Post. That was confirmed by P.W.5 who told the court that, on 20th August 2000, he did receive a telephone information following which he proceeded to Tsenola, where he found a dead person identified to him as the deceased, in this trial. P.W.1 confirmed the evidence that the police later came, examined the deceased for injuries after which they conveyed her away.


The evidence of P.W.2, 'Majeremane Motsoahae, was that she lived at


14


Tsenola. She knew the accused and the deceased, in her life time. They were her co-villagers.


According to P.W.2, on the afternoon of 20th August 2000, she was at her home when the accused came and told her that she had stabbed the deceased with a knife. Thereafter the accused left. P.W.2 followed her till they came to the spot where the deceased was lying dead on the road, approximately 60 metres away from her (P.W.2's) house. Many people had already gathered at the spot.


P.W.2 confirmed that P.W. 1, telephoned the police. Thereafter the police arrived, undressed the dead body of the deceased and examining it for injuries. At the time the police were examining her dead body for injuries, P.W.2 observed that the deceased had sustained an injury below her right side breast. However, under cross-examination, she told the court that if P. W. 1 had testified that the injury was on the left side then she might be mistaken in her evidence that it was on the right side. P.W.2 further confirmed that after they had examined her dead body for injuries, the police left with the deceased, as well as the accused. As it was already dark at night, P.W.2 did not accompany the deceased's dead body when it was taken away by the police. She was not, therefore, in a position to tell the court whether or not it sustained additional injuries whilst it was being transported away by the police.


P.W.4, Lebohang Moholi, told the court that he lived at Tsenola. He knew the accused and the deceased, in her life time. They both lived in the same village as he did. In fact the accused was a younger sister of his mother.


At about 5 p.m on 20th August 2000, P.W.4 returned to his home village of


15


Tsenola from a church service. Before he could reach his home, in the village, he noticed people running in the village. He followed them to a spot where there was a person lying dead in the street next to the home of P.W.l. He identified the dead person as the deceased in this case. The accused was amongst the people who had crowded around the dead body of the deceased. Although he learned that the accused was the one who had killed the deceased, P.W.4 never talked to her (accused) about it.

P.W.4 confirmed that whilst he and other people were at the spot where the deceased was lying dead, the police arrived, examined the deceased for injuries and in vain looked for the knife which the accused had allegedly used on the deceased. Eventually they (police) took away the dead body of the deceased together with the accused.


As the accused was staying alone at her house, in the village, P.W.4 told the court that he slept at her (accused's) house from 20th August 2000 until she return home after she had been released on bail. When he was preparing to get in bed, on the day in question (20th August 2000), P.W.4 noticed a brown press button knife on the accused's bed. He kept it safely in the house. Early in the morning of the following day (21st August 2000), P.W.4 proceeded to Mabote Police Post intending to report that he had found the knife which the police had been looking for at the spot where the deceased had been found dead. However, on his way to the police post, P.W.4 met a police vehicle by which some police officers and the accused were travelling in the direction towards the village of Tsenola. He stopped the vehicle and reported to its occupants that he had found the knife on the accused's bed. P.W.4 got into the vehicle and returned, with its occupants, to the accused's house where he showed them the knife. It had what appeared to be


16


blood stains on its blade. The accused confirmed that it was the knife she had used in the course of her fight with the deceased. The police officers then took possession of the knife and left with the accused.


It will be recalled that in his evidence P. W.8 told the court that when he and the accused met him on his way to Mabote Police Post P.W.4 was taking the knife (exh. "1") to the police station. They took the knife from him and returned to the police station without going to the accused's home. That was denied by P.W.4 who told the court that when he proceeded to the police post he was going to report that he had found the knife which he had left at the accused's house. As a police officer P. W.8 deals with many cases and it is possible that he has forgotten some of the details of this case. I prefer to accept the evidence of P.W.4 as the truth and reject P.W.8's version as false on this point.


As stated, earlier in the judgment, the accused gave evidence in her defence. She confirmed that she too lived in the village of Tsenola. P.W.9 and the deceased were not only her co-villagers, but her personal friends. P.W.6 and P.W.4 were children of her elder sister and, therefore, her own relatives.


According to the accused, her elder sister, Malipuo, informed her that a certain Mphapang had fought her. On the morning of 20th August 2000, Mphapang, P.W.9 and the deceased were summoned to the chiefs place. The accused also went to the chiefs place where, in her presence, P.W.9 and the deceased were questioned as to what they had said to Mphapang. In reply P.W.9 and the deceased said they had told Mphapang that Malipuo had said she (Mphapang) was fighting her because of the testicles of her (Malipuo's) son-in-law.


17


From the chiefs place, the accused, P.W.9 and the deceased returned to their respective homes, in the village. The accused then learned that P.W.6 had called at her (accused's) home to borrow some money. In the evening of the day in question, 20th August 2000, the accused proceeded to the home of P.W.6 and told her that she could come to her (accused's) house and get the money she wanted to borrow. From P.W.6's home, the accused went to the shop to get some change. From the shop she returned to her house, in the village. At her home, accused took a knife and some vegetables. She sat outside the house where she was dressing the vegetables.


It was whilst she was sitting outside her house that the accused noticed the deceased and P.W.9 at the latter's home. The deceased was standing on the forecourt next to the door of the house of P.W.9 who was busy unlocking the door. According to the accused, the deceased called her. She then left the vegetables she had been dressing outside her house and went to the deceased at P.W.9's place. On the way, accused realised that she was still holding in her hand the knife she had been using to dress the vegetables outside her house. She put the knife in her pocket and continued on her way to the deceased outside the house of P.W.9. The accused denied, therefore, P.W.9's suggestion that from the shop the accused followed her and the deceased to her (P.W.9's) home.


Be that as it may, the accused went on to tell the court that on arrival where the deceased was still standing outside P.W.9's house the latter asked her what her reaction was to what had been discussed at the chiefs place, earlier in the morning of that day. In reply the accused told the deceased that she and Mphapang had really disgraced themselves by causing a fight between Mphapang and Malipuo. According to the accused, the deceased then told her that she too


18


was in the line and hit her a blow with an open hand. It was then that they started fighting physically.


The accused conceded that during their fight P.W.6 arrived and asked whether or not they were fighting. She told her they were not fighting. However, they continued physically struggling, and hitting each other with fists. Eventually she (accused) felt that the deceased was overpowering her. She remembered that she still had a knife in her pocket. It was then that she violently pushed the deceased for a distance of about 5 metres away, took out the knife from her pocket, unclasped it, and stabbed her with it in self-defence. The accused denied that there was a time when P.W.6 caught hold of her in an attempt to prevent her from fighting with the deceased. She denied that she ever hit P.W.6 with an open hand when the latter fell to the ground. She denied that she ever tried to stab P.W.6 with a knife. She, however, confirmed the evidence of P.W.6 that P.W.9 never came to where she was fighting with the deceased.

The accused told the court that she had stabbed the deceased with the knife only once. When she noticed blood coming from the deceased, who was her friend, the accused got so confused that she did not remember what happened afterwards except that she left P.W.9's place. She, however, recalled meeting P.W.2 and confessing to her that she had stabbed the deceased with a knife.


Considering it as a whole, the evidence is simply overwhelming that the accused did stab the deceased, with a knife, on the evening of 20th August 2000. Indeed, she herself confessed to P.W.2 that she had done it. The question I had earlier posted viz. whether or not she was the person who had inflicted the injury that brought about the death of the deceased must, therefore, be answered in the


19


affirmative.


The only question that now arises for the determination of the court is whether or not in inflicting the fatal injury on the deceased, as she did, the accused had, the requisite subjective intention to kill, be it direct or in the legal sense. In this regard, it is not really disputed that during the course of their fight the accused and the deceased were pushing and hitting each other with fists. However, the accused testified that there was a time when she realised that the deceased was overpowering her. She then violently pushed the deceased away for a distance of about 5 metres, took out a clasped knife from her pocket, unclasped it, charged at the deceased, who was also coming towards her, and stabbed her (deceased) the fatal injury, in self-defence.


For the sake of argument, I shall assume the correctness of the accused's evidence. It may be mentioned that none of the crown witnesses, who testified in this trial, saw how the fight between the accused and the deceased started. Only the accused told the court that the fight started when the deceased hit her a blow with an open hand. According to the accused, the deceased was, therefore, the aggressor.


If, during the course of the fight the accused had managed to violently push the deceased away for the distance of about 5 metres, take the clasped knife out of her pocket, unclasp it and charged at her, it seems to me that she (accused) had the opportunity to flee in order to avoid whatever personal injury was threatening her from the deceased. She did not take that opportunity. Moreover, when the accused and the deceased were fighting with fists it was totally unacceptable for the former to take out a weapon, as lethal as a knife, and stab the deceased with


20


it. As Watermeyer, J.A. put it in Rex v. Molife 1940 A.D. 202 at p. 204.


" the means of defence must be commensurate with the danger, and dangerous means of defence must not be adopted when the threatened injury can be avoided in some other reasonable way."


The defence of private defence cannot, in my view, avail the accused person.

Now, it is trite law that intention is a matter of inference to be drawn from either the words or the acts of the accused person. It can be direct intention or intention in the legal sense. In the instant case, there is no evidence indicating that the accused premeditated, or uttered words from which it can properly be inferred that she had direct intention, to kill the deceased. The evidence we have is that during the course of her fight with the deceased the accused stabbed her a single wound on the chest with a knife. Granted that it was during the course of their fight when the accused stabbed the deceased on the chest with a knife, I find it incredible that the former could have found time to decide where to stab the latter, in particular the chest which is admittedly a vulnerable part of a human body. Assuming the correctness of my finding, it cannot be said, with certainty, that in stabbing the deceased, as she did, the accused was conscious that death was likely to occur from her act but, nonetheless acted regardless of whether or not it did occur and, therefore, had the intention to kill, at least in the legal sense. The most that can be said, in the circumstances of this case, is that the accused was negligent.


In the result, I come to the conclusion that the accused is guilty of Culpable Homicide. She is accordingly convicted.


21


Only one of my two assessors agrees with this finding.


SENTENCE


In mitigation of her sentence, the Crown counsel told the court that the accused had no record of previous convictions. She is, therefore, a first offender.


The defence counsel also addressed the court in mitigation of the accused's sentence and pointed out that she was a married woman. Her husband worked in the mines of the Republic of South Africa. She and her husband had no children of their own. The accused and the deceased were friends. The accused was, therefore, very sorry to have killed her own friend.


In may be mentioned that in the course of her evidence the accused broke down in tears hopefully as a sign of remorse. The court had to take a short adjournment to allow the emotions of the accused to cool down.


The defence counsel further pointed out that the accused went as far as only std. 7 in her education. She was unable to proceed further because her parents could not afford to pay for her education.


In cases of this nature, the relatives of the deceased are likely to sue the accused for compensation or "to raise the head", in accordance with our Sesotho custom. In that eventuality, this court is only the first to punish the accused. Another court viz. a civil court is yet to punish her. In order that the courts of law might not be accused of punishing a person twice for the same offence, this court,


22

in assessing the punishment which is appropriate for the accused person, takes into account the fact that it is, in all probabilities, only the first to punish her. That is, this court leaves space for the civil court to punish the accused person.


Despite all the factors that have been taken into consideration, in mitigation of the accused's punishment, this court is not prepared to turn a blind eye to the seriousness of the offence with which she is convicted, namely the unlawful killing of another person. It is a serious offence which calls for a commensurately serious punishment. Indeed, in numerous decisions, the courts of this Kingdom have warned that they will take a diem view of people who unlawfully kill others. However, this warning seems to be going unheeded. There is, therefore, a need to impose a punishment that will deter the accused and people of her mind from a repetition of this type of behaviour. A sentence that will serve as a lesson that the courts of law discourage people from unlawfully killing others.


In the light of all that has been said above, I have come to the conclusion that the appropriate sentence for the accused person is that she should serve a term of six (6) years imprisonment, without an option of a fine. She is accordingly sentenced.


B.K. MOLAI

JUDGE


28 March, 2003


For Crown : Miss Makoko


For Defence : Mr. Mahase