R v Makhetha (CRI/T/84/02)

Case No: 
CRI/T/84/02
Media Neutral Citation: 
[2003] LSHC 52
Judgment Date: 
16 April, 2003

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CRI/T/84/02

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


REX

vs

MOJAPELA MAKHETHA


JUDGMENT


Delivered by the Honourable Mrs Justice A. M. Hlajoane on the 16th April, 2003.


The accused appeared before me on the 5th March, 2003 charged with the crime of murder. It being alleged that, he, on the 21st August 2001, unlawfully and intentionally killed Napo Motinyane at or near Likoepereng Boluka-Tlhapi in Mohale's Hoek district.


When the charge was put to the accused, he pleaded not guilty and Mr Mathaba for the defence showed that the plea was in accordance with his instructions.


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The defence counsel made admissions of the following statements which in turn were read into the machine to form part of the evidence. The statement of Letele Motinyane, as an identifying witness was to the effect that the deceased Napo Motinyane was his son. He learned of the death of the deceased and following that, on the 30th August, 2001 he identified the body of the deceased before the doctor performed a post mortem examination. He identified two wounds on the dead body of the deceased, one open wound above the right breast and another open wound on the left shoulder.


The other admitted evidence was the statement of Ramphoko Motinyane, which in a nutshell showed that he was the brother to the deceased. He received the information about the death of his brother the deceased. He together with his father identified the body of the deceased before the doctor performed a post mortem examination.


The statement of 'Makamohelo Seloana was also admitted as part of the evidence. She indicated that at noon on the 20th August 2001, she saw the deceased assault one Monaheng Paee with a stick twice on the head. The deceased then left for his kraal to get another stick and wrapped his hand around it. He then went down to accused's place and invited him to play with sticks. The accused in turn replied that the deceased was mad. The deceased was then heard saying that the accused should stop talking about him (deceased). Deceased tried to strike the accused with his stick but the stick fell off and the deceased ran away leaving the stick behind.


The deceased was then seen throwing stones at the accused when he was some


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distance away near the accused's kraal. 'Makamohelo and some other three women threw stones at the deceased. The deceased went away. 'Makamohelo then took the trouble to go and report to the chief, who asked that the deceased be arrested. She also went to Makoae School to warn teachers that children should be accompanied from school by elderly boys as the deceased was causing trouble in the village.


The following day, the 21st August 2001, the deceased arrived back in the village. One Ntsau Makhetha chased the deceased and brought him to one Malefane's place, where deceased's parents also came and suggested that the deceased be tied and taken to the chief. Later, the accused and Ntsau took the deceased to accused's place and it was then at dusk. They were both watching the deceased, 'Makamohelo then left for her place, only to be woken up at dawn by Tsepo Lechesa about the deceased's death. She went to the scene in the morning and found the deceased dead.


The statement of 'Matafita Makhetha was to the effect that he too witnessed the fight between the deceased and the accused on 20th August 2001. He had also seen deceased throwing stones at the accused. He had seen the deceased arrive at his home on the 21st August, 2001. He did not witness the events of that day but only came to know about the deceased's death on the night of that day, the 21st August.


The Crown then called into the witness box Ntsau Makhetha as P. W. 1. This witness after being sworn in told the Court that he knew both accused and deceased, accused as his neighbour and deceased his blood brother, and from the same mother. He had seen people gathered at one Mojapela Makhetha's place on the evening of 20th August, 2001. He approached the crowd and came to know why they were at that


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place. Following the information he got from the crowd P. W. I asked them to be informed once the deceased was seen at his home. Indeed when deceased arrived home on the evening of the 21st August, 2001 the witness was duly informed and he went to deceased's home confronting him about what the information said about him. The deceased then said those were mistakes by him and started asking for forgiveness.

P. W. 1 then invited the deceased to accompany him to the headman's place and he complied. They had hardly moved two paces from Mojapela's when the witness saw some people in accused's company and as they saw them the deceased ran away, but P. W. I chased him and caught up with him some 15 paces (estimated) away from the headman's village.


The witness went on and said that he then fetched a rope and tied the deceased's hands with it. He tied him as the deceased tried to free himself as P. W. I was walking with him. The witness then asked the group to help him take the deceased to the headman. He told the Court that deceased was neither assaulted nor injured on the way to the headman's place.


When they got to the headman's place many people had already gathered including the deceased's parents. P. W. I handed the deceased to the headman after explaining to the headman about deceased's assaults on other people. The headman recommended that the deceased be taken before the chief. The accused was amongst the group at the headman's place. The witness then left the deceased with the group as he had to go and eat because he was from looking after animals at the veld. The group came following him. The witness counted the number of people whom he left


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with the deceased to seven.


After eating the witness joined the group, but this time the deceased's relatives had left. The group was now at accused's place. It was now at dusk. P. W. I then suggested that now that he had eaten they could then proceed to the chiefs place. This time only four of them remained with the deceased. They were P. W. I, Lehlohonolo Ben, Ntsane Lato and Mojapela Makhetha. The four of them were agreed that since it was late, they would go to the chief the following day in the morning.


According to this witness the deceased was still tied with a rope but as he (P. W. I) realized that all people in there were talking friendly to each other, he decided to untie the deceased. After something like three hours, the witness saw the deceased pick accused's stick from the ground and tried to strike the accused with it, but the witness stopped him. When the deceased was asked why he was behaving in that manner, he did not respond to the question but started asking for forgiveness like before showing that it was a mistake. All the sticks in there were taken and put away.


After some passage of time the accused was seen going out of the house, possibly to go and answer a call of nature as a typical Mosotho man would do. When he came back into the house, the deceased rushed at him and they grabbed each other. P. W. 1 stood up and came between them. The witness noticed the accused with a knife in his hand. The witness caught hold of the accused's hand holding the knife and when he did that he saw the deceased slowly going down. He concluded that the accused must have stabbed him as he saw blood on the ground. He then took


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possession of the knife from the accused and realized that it was a green and red press button knife. P. W. I noticed that the deceased's breath was failing him.


At that juncture Lehohonolo and Ntsau went out and left. The accused was still standing at the door inside the house. Accused was given his knife and he left. The deceased had stopped breathing and P. W. I went and reported to the headman. Deceased's relatives were informed of the situation.


Under cross examination, P. W. 1 told the Court that the deceased was not only attacking the accused but also other members of the society. The deceased was attacking the accused for the third time on that day. According to P. W. I on the last occasion that he witnessed the attack on the accused by the deceased, he noticed that the attack came instantly and the accused acting in self-defence stabbed the deceased. He said the attack came instantly because the witness had not seen the actual stabbing but only saw the knife in accused's hand after the deceased was already injured. In his own words, this witness told the Court that the deceased was a menace to the society.


The accused never uttered a word after the deceased had fallen but only asked for his knife which the witness had taken from him. P. W. 1 only came to know of the source of the attack on the accused by the deceased when the accused was under arrest. The reason given was that the deceased wanted to marry the accused's daughter and the accused never approved of that. According to this witness the deceased had first wanted to kill the accused so that he could then marry the accused's daughter and also stay at accused's place thereafter.


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P. W. 2 Lehlohonolo Ben after being sworn in told the Court that his home was at accused's and deceased's village. He had been to school for the first and the last day on the day the deceased met his death. The witness was from school as he saw the deceased in P. W. 1's and accused's company. He was under arrest. The witness joined the group which also consisted of some women and the deceased's parents. The deceased was being taken before the headman. The headman referred the deceased to the chief, but it was already at sunset.


According to P. W. 2 the accused and P. W. 1 decided to go and eat at accused's place going along with the deceased and the witness followed suit. The witness told the Court further that at accused's place, the deceased was tied up on both his hands. The headman advised them to take the deceased to the chief the next day as it was already at night.


It would appear that the deceased's parents had remained behind and did not go to the accused's place, as the witness mentioned P. W. I, accused, himself and the deceased as people who then remained at accused's place. During the night the witness saw P. W. I go out of the house, presumably going to answer a call of nature: He later came back into the house and slept. The witness fell asleep. P. W. 2 woke up still in the middle of the night and found the accused and the deceased holding each other in a fighting mood. P. W. 1 intervened, but the witness immediately went out and left as he said he was scared. He left for his home to sleep.


At his home as P. W. 2 was preparing to sleep, P. W. I came and reported about the stabbing on the deceased. The witness reported to some men in the village who


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followed him to the accused's place. When he got there with others, P. W. 2 noticed that the deceased had passed away. The accused was no longer there. The witness reported the matter to Chief Paleo Shoele.


In cross examination the witness explained that he did not know how the fight started between accused and the deceased as he was asleep. He did not deny when he was told that the deceased was the aggressor. P. W. 2 showed that he concluded that accused and the deceased were fighting as he saw them when he woke up at accused' s place because he saw both of them with their fists raised up.


P. W. 3, Paleo Shoele aged 78 years after being sworn in told the Court that he was the chief of Boluka-Tlhapi Phamong in the Mohale's Hoek district. He only went as far as standard 2 at school. Both deceased and the accused were his subjects.


On two different occasions, the chief had received some information relating to both the accused and the deceased. On the first occasion the chief ordered for the arrest of both the accused and the deceased. On the second occasion he ordered for the arrest of the deceased but the deceased ran away. He had run to police at Mphaki. The chief reported the matter to Mohale's Hoek police.


On the night of the 21st August, 2001 P. W. 3 got a report from the accused's headman and from-the deceased's parents about the death of the deceased. The witness proceeded to the scene the following day in the morning. He found the deceased at the accused's place with two stab wounds, one above the right breast and the other next to the left shoulder near the armpit. When the witness so examined the


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injuries, he did not take off the clothes but only uncovered the body. The deceased was lying on his back and he was not tied. The accused was not there at his place.


The matter was reported to the police in Mohale's Hoek who visited the scene in the presence of P. W. 3. The body was examined by the police who later took the body away in a vehicle. The accused was later arrested by the police.


According to P. W. 3 under cross examination, the deceased was well built physically than the accused, but the deceased was younger than the accused in terms of age. In putting more emphasis on the age of the deceased, the witness even told the Court that in fact the deceased was brought up by the accused. He concluded by showing that the accused was very sickly at the time of the incident. In clarifying the point of deceased's age further, the witness showed that the deceased had been staying at accused's place as he was growing up as the father of the deceased and that of the accused were brothers.


P. W. 4 Sgt Matoetoe informed the Court in his evidence that he was stationed at Ketane and knew the accused well since 1999. He first got to know the accused as he had come to report about his daughter who had been assaulted.


His evidence went further to show that, on the 21st August 2001 accused arrived at the charge office giving a similar report to that which the chief had given relating to the deceased's death. The witness told the accused about the report from the chief. The accused then handed over to the witness a red and green press button knife. The witness handed over the knife to D/Tpr Molorane. The witness never visited the


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scene, neither did he see the dead body. He cautioned and charged the accused with murder before the accused was taken to Mohale's Hoek Police.


P. W. 5 D/Tpr Molorane in his evidence told the Court that he was stationed at Mohale's Hoek. He only came to know about the accused when he was at the Police Station at Ketane. The witness visited the scene after the accused had been handed over to him. The place he visited was at Boluka-Tlhapi Likoepereng. The witness found the dead body inside the house.


On examining the body, P. W. 5 observed on open wound on the left shoulder. Another wound was above the right breast. There was also a wound on the right leg. The witness had taken off deceased's clothes as he examined the body, and when all these were taking place it was in the presence of other Police Officers.


Villagers had already gathered at the scene as they had stayed there for the whole night with the dead body. A red and greed press button knife had also been handed over to P. W. 5, but could not be produced before this Court as it went missing in Police exhibit room. When the witness visited the scene he found the deceased lying on his back facing upwards. The examination was done in the presence of the chief of Boluka-Tlhapi.


The last Prosecution witness, P. W. 6 Ntsane Lato after taking oath told the Court that he knew the accused as his neighbour at Lokoepereng. The witness only went as far as standard 4 at school. The witness told the Court further that he was before the Court in relation to the death of Napo Motinyane who lost his life on the


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night of the 21st, but could no longer remember the month and the year.


It was P. W. 6's evidence that when he arrived home that evening from the fields, he was asked by his father, Malefane Lato to go to the house of the accused. When he arrived there he found P. W. I, P. W. 2 and the accused seated in the house and putting questions to the deceased. Accused was also present. The witness also joined in putting questions to the deceased. The witness asked the deceased why he was tied with the rope and the reply from the deceased was that, it was because he had fought the accused the previous day. The witness asked further as to why deceased had assaulted the accused and deceased in reply showed that he did not know why.


The witness showed that in their conversation with the deceased, the deceased told him that he (deceased) had been to a traditional healer who caused him to be going about assaulting people. He gave the name of that doctor as 'Mashemane. According to this witness, as they were seated inside accused's house he saw the deceased pick up a stick from the floor rushing at the accused to attack him, but he was stopped by P. W. I. By that time the deceased had been untied by P. W. I. The deceased came back and sat down. The witness asked the deceased why he was attacking the accused, and the reply was that deceased felt confused and his head spinning.


The accused then went out. As accused came back from the outside deceased rushed at him once again but he was stopped. They rushed at each other and P. W. 6 saw a knife shining in accused's hand whilst the deceased held the stick. The stick belonged to the accused. As the witness stood up to intervene the deceased fell to the


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floor. The witness had not observed the stabbing. In his words, the witness then showed that he ran away to his home. He was later told about the deceased's death.


The witness went out and called out men of his village and together they proceeded to accused's place. He noticed a wound on the right breast of the deceased, and another on the left shoulder. He also saw the knife, which he described as a gold press button knife. He saw Police arriving at the scene but did not wait to see them examine the dead body.


According to this witness the deceased was not only attacking the accused but also accused's children. It was put to the witness that accused would say that he never saw the stick in deceased's possession but he reasonably believed that the deceased was attacking him with a stick. In response the witness showed that he saw the deceased holding a stick as he rushed at the accused as he entered the house.


At this juncture the Crown made an application in terms of section 227 (1) (a) (iv) of the Criminal Procedure and Evidence Act 9 of 1981, for handing in as part of the record the post-mortem report and this was not objected to by the defence. The post-mortem report which was read into the machine, showed that on the 30th August, 2001, the doctor examined the dead body of a male African adult, which was identified to him by Letele Motinyane as being that of Napo Motinyane. The doctor formed the opinion that death occurred on the 22nd August, 2001. The cause of death was found to be due to a penetrating wound on the left shoulder extending to the apex of the left lung. The report was handed in and marked exhibit "E".


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At the close of the prosecution's case the defence applied for the discharge of the accused in terms of section 175 (3)of the Criminal Procedure and Evidence Act 9 of 1981 which, reads


"If at the close of the case for the prosecution, The Court considers that there is no evidence that the accused committed the offence charged in the charge, or any other offence of which he might be convicted thereon, the Court may return a verdict of not guilty. "


In support of his application for discharge, the defence counsel submitted that the Crown had failed to establish a prima facie case because it has not been established clearly how the deceased ended up being at the accused's place. That it had not also been established that the accused had the requisite intent to kill the deceased. Under the circumstances therefore, it could not be said that the conduct of the accused was unlawful.


In response, Crown submitted that the application for discharge had to fail as a prima facie case has been established. That the test to be applied at that stage would not be whether there was evidence upon which a reasonable man should convict, but whether the evidence was such that a reasonable man, acting carefully might convict.

Looking at the prosecution's case as a whole, it has not been disputed that the deceased was reputed to be a trouble maker. He did not only go about attacking the accused and his family, but other members of the society. P. W. 1 did inform the Court that deceased was not only attacking the accused's family, but other members of the society. On that evening alone, the deceased attacked the accused three times, unprovoked.


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P. W. l's evidence on the issue of the deceased being a troublemaker was corroborated by that of P. W. 2. He had shown under cross examination that the deceased was the aggressor and that accused acted in self defence. The evidence of P. W. 3 as the chief of both accused's and deceased's village also showed that the deceased was always put before the headman for assaults on people. The chief had full knowledge of the attacks as he even confronted both deceased and accused and learned from that meeting that deceased had way laid the accused.


In our law, the crime of murder consists in the unlawful and intentional killing of another living person. 'South African Criminal Procedure Vol. II by J. K. Milton at 310'. There was no question that it was the accused who caused the deceased's death, but the killing must be unlawful and there must be intention.


The Crown witnesses have shown that the deceased was troublesome, even on the day in question, the accused was not the one who started the fight. Deceased happened to be at the accused's place because the intention was for taking him before the chief. They were only advised by the headman to go to the chief the following day as it was already late at night. It was only unfortunate that no one thought of keeping the deceased for the night at another place other than the place of the accused.


Did the accused intent to kill the deceased? Looking at the facts of this case, before accused inflicted the fatal wound, he was from outside, presumable to answer a call of nature and when he came back into the house where they were sleeping the deceased rushed at him. The deceased had attacked the accused on two occasions


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prior to that and had been stopped. On those prior occasions the deceased was armed with accused's stick as accused had his stick just lying on the floor. The accused's behaviour portrayed someone who only wanted justice to take its normal cause, but not take the law into his own hands. Accused had ample time of attacking the deceased even at the time the deceased was tied with a string on both hands, or even when others in the house were asleep, but he did not do so.


The accused's behaviour throughout showed that he did not have any intention of harming the deceased. He lacked the necessary intention to kill, S v Zoko 1983(1) S. A 871.


Coming now to the unlawfulness of accused's acts. The accused had gone out leaving others who were in the house asleep. When he came back the deceased rushed at him. The accused had left his stick in the house when he went out. A knife was seen in accused's hand and the deceased fell on the floor. No one did notice the actual stabbing, but by inference, it could be taken that it was the accused who stabbed the deceased.


The accused had raised self-defence in his defence. Could it therefore be said that the accused acted justifiably under the circumstances? The learned authors of South African Criminal Law and Procedure (Burchell and Hunt Vol I at 275) dealing with this kind of defence stated that;


"The attack must have commenced or be imminent. "


In this case the deceased had rushed at the accused as he entered the house at


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night and in self-defence, the accused used his press button knife and inflicted one wound which happened to be fatal. The killing would be lawful if it could be shown that it was justifiable. R v Mhlongo 1960 (4) S. A. 580. The facts of this case showed that the accused acted as he was attacked and the attack had commenced. He was therefore entitled to defend himself under the circumstances. The kind of knife that he used was one where he just pressed the button and it opened. No much effort was used to open it. The accused was quite entitled to act as he did in self defence. He never exceeded the bounds of that defence as only one blow was struck.


The Crown having failed to establish a prima facie case entitles the accused to an acquittal.


The accused is found not guilty, acquitted and discharged.


My assessors agree.


A. M. HLAJOANE

JUDGE


For the Crown: Ms Mofubelu

For the Accused: Mr Mathaba