R v Moletsane (CRI/T/87/2002 )

Case No: 
Media Neutral Citation: 
[2003] LSHC 138
Judgment Date: 
6 November, 2003




In the matter between





Delivered by the Honourable Mrs. Justice K.J. Guni on 6th November 2003


Charge - Murder - Definition - essential elements of of murder charge - burden of Proof - section 175 (3) (CRIMINAL PROCEDURE AND EVIDENCE ACT 1981 - Power of the court to return a verdict of not guilty .

The accused is charged with the crime of Murder. It is being alleged that on the 14th Day of NOVEMBER 2002 and at or near PHAHAMENG in the district of MAFETENG, the said accused unlawfully and intentionally killed MASILO MOKEKI (my underlining

to highlight those two essential elements of the alleged crime). The accused and the deceased were lovers. The post-mortem examination report by Dr. MJAGI - dated 7 NOVEMBER, 2000 shows that the deceased's death was due to severe hamorrhage. (Refer to EXHIBIT A).

[2] The post-mortem examination report was produced by agreement by both counsel for the crown and defence. It appears on this post-mortem report that the doctor is of the opinion that the deceased died on 04.11.2000. It is strange because the accused is charged with the crime of murder of this deceased, allegedly committed on the 14th day of November, 2000. (Refer to the Indictment). How come the accused is charged with the crime of murder of someone who according to the informed opinion of the doctor was already dead since the doctor formed the opinion that the deceased died on 04.11.2000. Be that as it may, it could be a typographical error. In his/her remarks at paragraph 8 of the said post-mortem report the doctor insists that the victim sustained a chest stab wound on 04/ 11/00. This is the stab wound from which this deceased died immediately from the severe hamorrhaging there and then at the scene after receiving it.


[3] The crime of murder is the unlawful and intentionally causeing of the death of another human being. (CRIMINAL LAW CR Snyman, THIRD EDITION at Page 401, HUNT 333, Burchell and MILTON 410). The crime of murder by definition consists of four legal requirements which must be satisfied in order to establish the charge of the crime of Murder. These are:

  1. - causing the death.

  2. - of another human being

  3. - unlawfully and

  4. – intentionally

[4] All the four elements must occur simultaneously Rex v NDHLOVU 1945 AD 369 at 373, Rex v VALACHIA and Another 1945 AD at 829. The accused in our present case has admitted stabbing the deceased with a knife. It is not in dispute that the deceased is a human being and that he died as a result of that stab wound inflicted upon him by this accused. The first two elements of the crime of murder as charged have been established.

[5) The onus to establish all the elements of the offence charged rests throughout the trial on the crown. Since the deceased has admitted causing the death of the deceased, the crown still has to prove that she did so unlawfully and intentionally. The accused has pleaded not guilty, therefore the crown must prove her guilt beyond reasonable doubt. MILLER v MINISTER of PENSIONS, 1947 (2) ALL ER 372 at 373H.


On the day in question P.W.I LEKHOOA THETHE - the neighbour and the workmate of the deceased, was already in bed, although he just laid awake on his bed. He heard some noise which he recognised as a verbal altercation between his neighbours the deceased and the accused who occupied the room next to his. There was a wall and tightly closed door between their rooms.

[7] As their altercation raged on, PW1 heard the accused express her disgust of the deceased's promoscuity. There was no response from the deceased against this accusation of infedelity levelled agaist him. PW1 heard the deceased


angrily shouting that he is fed up of being locked outside their room the whole night. The deceased could not be referring to that night because according to PWl's evidence when he heard this altercation the night was still young. The deceased must have been referring to the previous night. PW1 in his evidence seemed to suggest that when the deceased went to work that morning, he was not from his room. He had spent the night elsewhere. As their altercation continued, the accused asked the deceased why does he want to be allowed in. PW1 heard the bang bang noise as if the door (that is the door of the room in which the accused and the deceased lived) was being forced open. Could the deceased have forced that door open. Thereafter PW1 heard the deceased asked the accused why she stabbed him with the knife. PW1 came out of his room. At the forecourt he saw the deceased lying down and the accused standing at some distance from the deceased.

[8] The accused asked PW1 to assist her to pick the deceased up but PW 1 refused, asking the accused what has she done to the deceased. Defencifully the accused point out to PW1 that she too has relatives (presumably who could lent a helping hand) and that she could not be defeated by the prostitute-


(referring to the deceased). The accused was seen by PW1 pulling the deceased by his legs toward the house where she put him against the wall.

[9] The visibility was at that time not good. It was already dark. As the accused pulled the deceased from where he was lying, PW1 saw a dark patch emerge as the body was pulled away. Ho lit the match. The dark patch turned out to be a pool of blood. Upon seeing that, PW1 decided then that he must do something. He wanted to go to report the matter to the chief. He did not know the chiefs place. He went to the "stockvel" that was held in the neighbourhood. There PW1 enquired from the people he found about the whereabouts of the chiefs place. Pwl had been living there approximately about a month. He was given directions to the chiefs place. He went there. He must have found the chief and made the report to him. He returned to his place accompanied by the chief. The two, found the accused still there with the deceased. The accused, the chief and PWlwent to report the matter to the police. It is PWl's evidence that the accused and the deceased shouted at each other regularly. He often heard their verbal altercations. Considering that PW1 had only been staying there approximately for one month, the fact


that, he witnessed what he described as frequent quarrells, shows that the relationship of the accused and the deceased was a stormy one. The deceased was a heavy alcohol drinker. The deceased was very often drunk. At times he disappeared from work in order to go and drink. PW1 used to see the deceased drinking at the beer houses near their workplace Having taken time off from work. On the night in question the deceased was from that "stockvel" and he was very drunk. From this evidence the deceased appears to have had a really problem of alcoholism which must have affected his relationship with his lover.


On the day in question, the deceased was very drunk. He found the accused having locked the door. He asked to be allowed in. The accused refused to open the door for him accusing him of infidelity. The deceased became very angry pointing out to the accused that he is fed up of being locked outside the whole night. It appeared the previous night the deceased was locked out and had not been home since. The deceased forced open the door and attempted to assault the accused with the knife (exhibitl).


(11) Meeting little insistence because of the deceased's drunken stupor, the accused wrestled with easy the said knife out of his hands. Having lost the possession of the knife, the deceased reached for another weapon-the "lebetlela" stick. The accused ran away and was pursuit by the deceased who caught up with her outside their room at the forecourt where the accused had fallen. The deceased tried to hit the accused with that "lebetlela" stick. The accused who was still in possession of that knife which she took off the deceased, stabbed him with it in self-defence.

[12] At the close of the crown case an application was made for the discharge of the accused in terms of Section 175 (3) Criminal Procedure and Evidence Act NO.9 of 1981. The relevant portion of this section reads as follows:

"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, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty".

(13) This section empowers the court to consider returning the verdict of not guilty at this stage of the trial in cases where there is no evidence placed before the court on which the accused might be convicted of the offence charged or might be


found guilty of any competent verdict under the offence charged.

[14] The evidence put before this court must be carefully examined in order to determine whether or not the accused might be convicted of the offence charged or any other competent verdict under this charge, such as Culpable Homicide, assault with intent to do grievous bodily harm or assault common.

[15] The crown with the assistance of the admissions made by the accused, has established that the accused caused the death of the deceased. The remaining question to determine is whether or not the accused did so unlawfully and intentionally. The killing of a human being, unless, there is some justification is always unlawful. The cross-examiner is obliged to put. as much of the defence case to the crown witness as he or she can possibly do. FATSO LEHLEHLA and Rex C of A (CRI) NO.3/03. It was put to PW1 if he could deny that the accused stabbed the deceased in self-defence. He could not. The weapon used was the weapon used by the deceased to attack the accused as was put to the crown witness.


[16] The intention to kill is seldom expressed. It is always invariably gathered from the surrounding circumstances. The accused appeared to have had no intention to kill the deceased as she stabbed him in self-defence. She after stabbing the deceased still ran away fearing for her own safety while thinking that the deceased could pursue her. She pointed out to PW1 that she too has relatives-indicating that she felt she still needed help against the attack from the deceased and/or his relatives. Immediately upon realising that the deceased was no longer able to attack her she returned to assist him. Pulled him against the wall to support him, but apparently too late to stop his demise. There is no evidence before this court, which if believed, might result in the conviction of the accused on the offence charged. The crown has failed to adduce prima facie evidence of the elements it set out in the indictment. R v MATETE and others 1977 LLR 262.

[17] The accused cannot be called upon by the court to answer where there is no prima facie case against her. Rex v MOJAPELA MAKHETHA CRI/T/84/2002. (unreported) MATSOBANE PUTSOA and OTHER v Rex LLR 1975 p201.


The case so far made out by evidence led on behalf of the crown does not establish the prima facie case against the accused. There is no evidence that the accused committed the offence charged or any other offence of which she might be convicted under this charge, I therefore return a verdict of Not


My brother gentleman assessor agrees with me.



Assessor - Mr. T. Kolobe

For crown - Ms. Shale For defence - Mr. Molapo