R v Potse (CRI/T/69/99)

Case No: 
Media Neutral Citation: 
[2004] LSHC 145
Judgment Date: 
18 November, 2004




In the matter between:-






DATE : 18th NOVEMBER 2004


Criminal law — self defence - onus of proof on the crown to prove the self defence false beyond all reasonable doubt.

Where an accused stabbed the deceased with a knife after the deceased had threatened to kill the deceased or himself be killed, the crown must negative self defence beyond a reasonable doubt; no onus rests on the accused to proved his innocence. All he needs to show is that his version is reasonably possibly true or probable.


Held: Upon the facts, the crown failed to show that when he stabbed the deceased who was threatening death, the accused acted unlawfully and not in self-defence.

Held: The accused found not guilty and discharged.

  1. The accused stands charged with the crime of murder it being alleged that on the 24th day of December 1997 and at or near Likhakeng in the district of Leribe, the accused unlawfully and intentionally killed one Nkhahle Bombere.

To this charge he pleaded not guilty.

  1. The defence further admitted the depositions of Detective Trooper Koalepe, Patala Liahelo, and Dr. Seqhobane all of whom had given formal evidence at the Preparatory Examination before the Leribe Subordinate Court regarding the identity of the deceased, his autopsy and arrest of the accused.

  1. The crown then called P.W.I Ponto Liahelo who informed the court that he lived in the Likhakeng village and that on the 24th December 1997 at about 6 pm he happened to be in the company of the deceased at the shop of one Maqhomaki. He told the court that the deceased who had just arrived from Butha-Buthe was drinking castle beer. He went further to say that the deceased then asked him to go and fetch his girl friend Itase Maqhoane P.W.2 from her house and that Itase had requested that deceased go to the house.


  1. He says they both went to the house of Itase P.W.2 and as it was raining they sought shelter at the house of P.W.2 where they were later joined by Mamatebele (P.W.3).

  1. As they were seated therein, someone knocked at the door and P.W.2 inquired "who is it?" - the no response was followed by another knocking and the man's voice said "It is me". Itase then explained "oh....it is abutiPitso".

  1. He says the deceased then asked P.W.2 to go out and inquire and after P.W.2 had gone out he then heard her shouting from the outside saying that deceased should not go out; but the deceased stood up and opened the door and that as he peered at the door the accused stabbed him with the knife "on the left side of the neck and that the deceased moved back saying "Hey man..., he has stabbed me " and he fell down soon thereafter.

  1. He says the deceased "had said nothing before he was stabbed". He told the court that deceased had had a year old love affair with the P.W.2 and that "she was going to elope with the deceased to Butha-Buthe".

  1. Under cross examination by the late Mr Mathafeng, he denied that some threats had been uttered and stated that deceased was not in a belligerent mood. It was then put to P.W.I that deceased had said-


"'Na ke moshana oaButha-Buthe ... nke ke ka tla telloa hole hakana."

Answer; I did not hear that.

  1. The crown then called P.W.2 Itase Maqhoane who admitted that she was a girlfriend to both the deceased and the accused; she informed the court that on the Christmas evening of the 24th December P. W. 1 arrived asking her to meet the deceased; and that because of the rain, they sheltered at her house and were in the company of deceased Mamatebele and Ponto.

  1. As they sat in the house talking the accused arrived and knocked at the door asking Mamatebele to come out for a talk. She says Mamatebele went out and came back saying that the accused wished to speak to her. She says she refused and that the accused then said "if she does not come out ....I break. "

  1. She says the deceased then asked her to go and inquire and when she went out, she found the accused who tried to force his way in and was violent, even trying to slap her.

In the fracas that ensued he heard deceased say "Ponto ...man, ...he has stabbed me!"


Upon entering the house she found him already lying prostrate and bleeding.

  1. Cross examination then went like this:

Question: Accused will say the deceased was boasting that he was a boy from Butha-Buthe and if not killed, he would kill... no one would play trivialities with him.

Answer: I did not hear that; but the deceased said he would not come all the way from Butha-Buthe for masaoana (trivialities) I did not hear threats to kill.

  1. She admitted however that the deceased was being restrained by Ponto and Mamatebele in the house and that there was general commotion.

Question: Deceased was saying he would not come from Butha-Buthe for trivialities ... either he kills or he is killed.

Answer: I heard that.

Question: Accused acted against a threat to be killed and in self defence.

Answer: I hate what he did .... Not himself.

Question: He feared for his life


Answer: No... I don't understand

Question: His aggressiveness way consistent with his threats

Answer: Yes

14. P.W.3 Mamatebele Ntebele then gave evidence and informed the court that on that day the accused came and knocked at the house in which P.W.2, deceased, Ponto P.W.1 and herself were sheltering from rain. Accused then asked her who was in their company in the house - and that she hoodwinked him by saying that they were with P.W.2's brother - she did so because she foresaw a violent friction between the two men.

She says the accused insisted saying "Call Itase ...so that I tell her once that we should part ways. "

15. She says that as Itase tried to lock the door the deceased wrenched the key and opened the door and the deceased said "Ponto if I die rush home to tell them I have died. She admitted that the deceased had just said "I can't come all the way from Butha-Buthe for trivialities ".

16. She says as he opened the door, the deceased retreated saying "Ponto ... he has stabbed me." He then fell down.


Cross examination went on like:

Question: Accused will say that he heard deceased say that he not come from Butha-Buthe for trivialities ... someone will die!"

Answer: I can't deny that.

The crown then closed its case.

17. The accused then gave evidence and informed the court that he had a love affair with P.W.2 and that he had come to know that the deceased also was in love with P.W.2.

He went on to tell the court that on the 24th December 2004 he had gone to the shop of one Malika where liquor was being sold and he joined a casino card game and was also drinking castle beer. It was then that he recognized the deceased in the group of the people in the shop.

18. He says that at about 9 pm when he went to the house of P.W.2 he was already very drunk; it was also a very dark and rainy night.

He says as he, Ponto, Itase and Mamatebele sat in the house, someone knocked and he heard someone say "Ponto ... is itPitso?" He went to say that he called P.W.3 to come out and when he inquired who was the man inside, P.W.3 had said it was P.W.2's brother Paseka Maqhoane and Ponto. He disbelieved her. From the inside, a voice


came out saying "I am a boy from Butha-Buthe... I can't come here for trivialities .... Today ifPitso does not kill me, I am killing him". The door opened roughly, he says. He goes on to say that he broke loose from P.W.2 who was grappling him, and the deceased was coming from the door. He says "I took out the knife - opened it and stabbed him ... where I can't say."

19. Under cross examination he insisted that having heard the words "I kill or be killed" he took the deceased to be dangerous because he heard him threatened death to him.

"I stabbed him because I had heard his threats as he was being restrained."

The defence closed its case.

20. Proven facts

  1. It is not in dispute that the accused stabbed the deceased with a knife thus causing his death on the Christmas Eve of the 24th December 1997.

  1. It is also common cause that both the deceased and the accused were in love with P.W.2, an unmarried woman living there at Likhakeng.


  1. The evidence also shows that when the accused came knocking at the door of the house rented by P.W.2, the deceased took offence and bragged that he had not come from Butha-Buthe for trivialities and that either Pitso killed him or be killed by him

  1. It is not in dispute the deceased was being restrained by Ponto and Mamatebele.

5) That the stabbing towards the doorway immediately after having uttered the threatening words is not in dispute.

21. What is in issue is whether when he stabbed the deceased the accused acted in self-defence. The onus is upon the crown throughout to show that the accused acted unlawfully and to disprove self defence as false beyond all reasonable doubt; no onus rests upon the accused to prove his innocence; all he need show is that his version is reasonably possibly true or probable. In this case the undisputed facts indicate that the deceased was belligerent towards the accused over Itase and even uttered some threats "to kill or be killed" - and this was admitted by P.W.2.

22. If that be the case - as I find it to be so - it is probable that when he stabbed the deceased at the doorway, the deceased was approaching the accused belligerently having uttered the threats "to kill or be killed". The crown could not convince the court that the accused exceeded the reasonable bounds of self defence or that he had gone to the house of P.W.2 armed and with intent to kill. If that intention was


harboured by the accused, it had to be proved beyond a reasonable doubt. The fact that deceased threatened to kill or be killed renders it quite probable that when the door opened, the deceased was coming to fulfil his intention to kill.

[The Assessor Gentleman however is the opinion that the accused was criminally negligent in using that knife as did once a person appeared at the door — despite the utterances made by the deceased. The deceased was not armed according to the crown witnesses.]

23. I hold therefore that upon the facts of this case the crown has not

proved its case beyond a reasonable doubt; there is a reasonable possibility that when he stabbed the deceased the accused acted in self defence. He is found not guity and is discharged



For Crown : Ms Dlangamandla

For Defence: Mr Teele