R v Tutubala (CRI/T/200/2002 )

Case No: 
CRI/T/200/2002
Media Neutral Citation: 
[2004] LSHC 73
Judgment Date: 
28 May, 2004

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CRI/T/200/2002

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

VS

THELLE TUTUBALA


JUDGMENT


Delivered by the Honourable Mr Justice T. Nomngcongo on the 28 May 2004


The accused is charged with the crime of murder in that upon or about the 22nd August 2001 and at or near Ha Makh'ona Bokong in the district of Thaba-Tseka, he, the said accused killed 'MAKENEUOE TUTUBALA and did thereby commit the crime aforesaid. He pleaded not guilty to the charge and the crown proceeded to lead the evidence of four witnesses. At the close of the crown case the accused also gave evidence in his defence.


Of the crown witnesses, the evidence of PW2, 'MAKHAUTA SHAMPENE was formal. She is the witness who identified the deceased 'MAKENEUOE TUTUBALA (herein after referred to only as deceased) before the doctor who performed the post-mortem examination on her. Her (Pw.2's) cross-examination was merely perfunctory. Her evidence need not detain me further.


The crown opened its case with the evidence of No.8090 Trooper MOREMOHOLO (Pw1). He is a member of the Lesotho Mounted Police Service stationed at Bokong in the Thaba-Tseka district. He was still stationed there at the material time. He testifies that on the evening of the 22nd August 2001 while he was on duty the accused arrived. He (accused) was carrying what the witness described as a "Rambo" knife. I saw the knife when it was handed in as exhibit. It is what is usually regarded as a hunting knife. It is a sturdy weapon whose blade is made of stainless steel, clearly meant for tough situations. This knife was handed over to the police by the accused who there and then surrendered himself.


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The following day, the 23rd August the witness proceeded to Ha MAKH'ONA, the home of the deceased. In the usual Sesotho manner he reported first to the chief and they then proceeded together to the homestead of the deceased. On entering one of the houses they were confronted with clothes scattered about in the house. The clothes were soaked in blood. I pause to observe that scattered clothes immediately suggest to me some sort of scuffle having taken place in the house. This impression is reinforced by a question in cross-examination by Mr. Mokoko as to whether the witness found clothes in the house where one would not expect to find them. The witness answered that, that was correct.


In the house were also found a marble and a sheath. The marble does not seem to have had any further significance. The deceased was not in the house any more, it being reported that she had transferred to HLOTSE. The items found in the house were seized. In Court the witness produced as exhibits, the knife and sheath only, and they were marked respectively Exhibits "1" and "2". Cross-examination of this witness did not elicit anything more significant than what he testified to.


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The next and most important witness for the crown was 'MAKOENA ANACLETTA PELEHA (PW3) she testified that she knew both the accused and the deceased well. They lived in the same village with the deceased whereas accused lived in a neighbouring one.


On the 22nd August at about three o'clock she went to the home of the deceased for the purpose of borrowing some sugar. She says she found the deceased and the accused sitting together on a bed. On her arrival the deceased requested her to prepare some jelly for her and she was happy to oblige. In preparation she started boiling water on a paraffin stove. The deceased for her part started to stand up to fetch a basin from another house. The accused, according to the witness would not allow the deceased to go out. He pulled her back down to the bed. He repeated this on her second attempt to stand. She was only able to stand and go at the third attempt. The accused then also stood up and followed the deceased out. She remained behind in the rondavel where she was to be for about the next thirty minutes until she decided to go out.


As she was outside, she was called from the house into which the deceased and


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accused had apparently gone. There she found accused holding the deceased by the waist trying to pull her out of the house. The deceased asked the witness to intervene and ask the accused where he was taking her to. This witness says she did. The accused then asked who the jelly was being prepared for, a question which the witness said the accused was in the best position to answer as he and not she, was staying with the deceased.


The accused then let go of the deceased and went into another room leaving the deceased in the room where they had been, which was apparently used as a kitchen. The witness went out. This was to be the first occasion for this witness to see the two scuffling.


The second occasion according to her arose when after about fifteen minutes of her going she heard the deceased calling out: "I am dying, 'Makoena!" She went back to the house and tried to gain entry into it only to find the door locked. She stood there for some time until the accused opened the door for her. She says when she went in, she found the accused pinning the deceased to the ground and stabbing her with a knife. I pause here to consider the likelihood of


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this scenario. If the witness had been standing at the door in response to the deceased's urgent call that she was dying, she must have entered immediately when the door was opened for her by the accused. How could she then have found the accused already pinning the deceased to the ground and stabbing her with a knife? The scene is described by the witness as having happened without so much as a preceding struggle after the accused had been to the door. I find this most unlikely.


To proceed with her story the witness says, in the position she described she saw the deceased stabbed once. She tried to get hold of the accused who then stood up and hold her in turn, pointing a knife at her. He then pulled her into another room. The accused then returned to the deceased and stabbed her three times. She observed this from the door way of the room into which she had been pulled. Nothing is said of the deceased ever having arisen from the ground where she had been pinned. Nothing is mentioned of any attempt by the deceased at self-preservation. The impression is created that from the time the witness entered the house the deceased lay prostrate on the floor without even so much as a feeble struggle, waiting for the accused to return to stab her after


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he had stood up to push the witness into another room.


The observations of this witness are rendered doubtful by a member of other factors. She, herself says that the events took place a long time ago and it was admidst a confusion that frightened her. Thus she freely admits that she may have forgotten some things that happened. Thus on being asked by the court to clarify exactly what happened upon her entry she cannot re-call precisely whether she saw the accused pinning the deceased to the floor and stabbing her or whether he had stood there, knife in hand before rushing at the deceased, something which if it happened, seems more likely in my view.


The final leg of this witness's description of the events in that house is that after she had been stabbed thrice the deceased asked the accused why he was killing her. The accused answered that deceased had been finishing him for a long time. He then went out locking the witness and the deceased in the house as he did. It is said that as he was leaving he told the witness to fetch deceased's key from the shop. The witness tried to convey an ever so slight implication here that there was a sinister motive in locking them in there- that of leaving to their


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own devices an injured deceased in the house with the witness. I don't think so. This was a self-locking key that can be opened from the inside and the accused knew they could let themselves out. This is exactly what the witness did after she was initially a bit confused and then remembered that this was the position. My own impression was that of a person who was in a great hurry to go and report what had happened. This witness actually says she saw him across the river running.


After this the witness raised the usual alarm and the deceased was subsequently taken away to hospital. She was at this stage still alive because she died the following day, the 23rd August 2001 after an operation to try and save her.


A post-mortem examination was performed on the deceased. Dr FASO (Pw4) who performed the examination was of opinion that death was due to haemorrhage caused by the rapture of the spleen, liver and stomach. He had observed that the deceased was a well nourished young lady who had sustained multiple stab wounds to the body and arms. He listed such injuries as two stab wounds on the back, three on the right hypochodrium, two on the left


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hypochodrium and one on the left flank and finally three on the right elbow. These injuries penetrated the stomach, the spleen and the liver, the latter of which the doctor said are rich in blood supply. I have no reason therefore to quarrel with the doctor's conclusion that death was due to haemorrhage.


The accused gave evidence in his defence . His story is somewhat different from that of the one eye witness PW3 especially in the most important aspects of what really transpired in the house which actually led to the injuries that led to the ultimate demise of the deceased. He agrees that PW3 found him and the deceased in a rondavel at the latter's homestead where they cohabited. They had no so long ago arrived from a shop where they had been drinking "BlackLabel" beer since eight o'clock in the morning up to about one o'clock. There is no agreement as to what happened after the usual greetings. Whereas PW1 says they were talking happily as she entered although she never heard what their conversation was about, accused however says there had already started an altercation between himself and the deceased over the latter's love affair with a certain SARIELE PELEHA. They had kept quite in order not to let in PW3

on this kind of conversation as accused considered PW3 a child who was not


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supposed to hear such things. According to him the deceased had been quite hostile in her response to accused's jealous accusations; in fact as PW3 entered she had just hurled an expletive about accused's mother! He says on being asked PW3 said she had come visiting. He thereupon left the deceased with her visitor and stayed outside for a while before proceeding to another of the houses described as a "flat". He sat down on a chair and was shortly followed in by the deceased who immediately proceeded to an inner room. She returned with her hands behind her. When asked by the accused what the matter was the deceased is said to have said "Your mother's vagina, I will show you who is older, " or words to that effect.


I pause here again to point out that accused says it is at this stage that a struggle ensued between him and the deceased. It is in contrast with PW3's evidence that the altercation took place in two stages. The one was when according to her she had been called by PW3 to witness accused who was trying to pull deceased out of the house. According to her no injuries resulted from this altercation as accused finally let go of the deceased and went into the bedroom (the inner room I referred to earlier). The second had been when she entered after again being


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called by the deceased who said she was dying and the witness had found her lying on the floor.


To round off the accused's story we come now to its most crucial aspects. He says when the deceased emerged from the bedroom with her hands behind her. He stood up to see whether he was going to the door or coming to him. She did not go to the door but rushed at him. He then threw a jacket which he was wearing in one sleeve at her. As she warded off the jacket there appeared a knife. He was able to get behind her and hold her around the abdomen. The hold encompassed the arm that was holding the knife. A struggle for possession of the knife then ensued which according to the accused lasted for quite some time, during which he realized that the deceased had been injured. He was finally able to dispossess the deceased of the knife. He then shoved her aside and stood next to her. She rushed him once again, whereupon she was pushed back with the hand that held the knife. She then slumped to the floor. He then went to open the door and called PW3. She came and peeped through the door.

He asked her to stay with the person whom he said he had stabbed with a knife.


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She came in and he immediately went out still carrying the knife. He went to fetch PW3's child, then placed it at the door and immediately left to go and report at the police station.


The aspect about the child being fetched and placed at the door after the whole incident was not mentioned by PW3 in her evidence in chief but was elicited under cross-examination. It seems to me that the child who must have been quite small if it had to be fetched, must have been in some distress under those circumstances and the accused took pity upon it. For PW3 not to find it important enough to make the child a factor in the events of that day, does not, in my view reflect too well upon her. One is tempted to call in question her recollection of the events of that day, or at the worst to want to put the accused in the worst possible light by not revealing any conduct on his part that might be considered redeeming. Either way this saps the credibility of PW3.


It is not easy to resolve the differences between the testimonies between PW3 and the accused. It has however been held that the proper approach when the court is faced with two conflicting stories is that:


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"The court [has] to be satisfied on adequate grounds that the story of the party on whom the onus rests was true and the other false (see Johnson Hlakametsa v R CRI/A/61/69 unreported)." Per Mofokeng J. in MOSHESHA V R 1976 LLR 47 at 51.


Mofokeng J. in the Moshesha case relied on R v Soagale where Barry J. P

held as follows:-


" There are two conflicting stories and before the onus placed on the Crown is discharged, the court must be satisfied that the story on whom the onus rests is true and the other false." R v SEGOALE 1947 (2) SA 641(T) at 645.


It will be observed that Mofokeng J in Moshesha case had to add that there have to be "adequate grounds" that the story of the party bearing the onus is true. That is so because the test is not simply, whether the one story is true and the other false or not. The ultimate test in a criminal case is whether or not the story of the accused is reasonably possibly true . The only relevance of a witness's or witnesses' stories vis a vis that of the accused is whether they contain facts which can demonstrate conclusively that the story of the accused cannot reasonably possibly be substantially true. It was laid down as follows by Davis

AJA in R v M 1946 AD 1023 at 1027.


"..........the court does not have to believe the defence story, still less to believe it in all its details, it is sufficient that there is a reasonable possibility that it may be substantially true."


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I respectfully agree. This is in accord with the principle that no onus really lies on the accused to prove anything (see for example R v Difford 1937 AD 370).


Coming to the facts of this case, the accused has given us his story. He stuck to it under cross-examination and it is that he was first attacked by the deceased with a knife. A struggle which last for a considerable time ensued. That there was a struggle was born out by the police witness who attended the scene and found clothes strewn around the room which was splattered with blood. As to who started the fight we can only learn from the accused and we are not entitled to assume that he fortuitously and impelled thereto by some inner evil decided to inflict fatal injuries on his lover. The accused says it was the deceased and in the circumstances of this case I must accept it.


It is true that PW3 paints a different picture from which we might infer that he exceeded the bounds of self-defence. But this witness herself has doubts as to what exactly happened that day. I have already pointed out aspects that raise some doubts as to her recollection of the events of that day regarding this very aspect. I may further add that as this witness entered the fateful room she gives


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the impression that the deceased was cowered on the floor and she had been called by the deceased who according to her had said she was dying. Yet PW3 does not testify that she saw any signs of a struggle or injury to the deceased. This is most unlikely. It must be remembered that her evidence as a single witness here must be treated with caution. (See R v Moshesha 1976 LLR 47).


My assessors and I agonized somewhat over the extent of the injuries on the deceased and that some of them were to her back. Exactly where at her back was not explained. The importance of that would be whether it was at a location where injury could not possibly have been inflicted during a struggle. The failure to place these injuries makes it impossible therefore to draw an adverse inference. More importantly it must be remembered that in the fray of a struggle it is never easy to re-collect , let alone to be sequential of, even one own's experiences of the very struggle. One becomes adrenalin driven and may accomplish feats which one cannot in a normal situation. I am unable therefore to say that the extent and location of the injuries carry the crown case any further.


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In the circumstances I find nothing in the crown case that demonstrates that the defence case, which has nothing inherently false about it cannot possibly be true. His defence that he acted in self-defence to an unlawful attack by the deceased must therefore succeed.


I therefore have to acquit the accused as I hereby do.


T. NOMNGCONGO

JUDGE OF THE HIGH COURT


For Crown : Ms Ntelane

For Accused : Mr Mokoko


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