R v Khechane (CRI/T/32/01)

Case No: 
CRI/T/32/01
Media Neutral Citation: 
[2003] LSHC 23
Judgment Date: 
12 February, 2003

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CRI/T/32/01

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

And

MOHLOMI KHECHANE


JUDGEMENT


Delivered by the Honourable Mrs Justice KJ. Guni On the 12 February, 2003


The accused in this matter is one MOHLOMI KHECHANE. He is a male Mosotho adult of fifty-two (52) years of age. He is charged with the crime of murder of one THABO PHETA. At the time of the commission of the alleged offence, the accused was forty-four (44) years old. Pheta was forty-eight (48) years old at the time of his death.


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The crown is alleging that on the 18th April 1994, at "approximately 0600 hours, at THE CALTEX GARAGE in MAFETENG TOWN, in the MAFETENG district, the accused did unlawfully and intentionally kill THABO PHETA. Murder is defined by the learned author CR Snyman in his CRIMINAL LAW book, third edition, at page 401; as "the unlawful and intentional causing of death of another human being". REX v NDHLOVU 1945 AD. 369 at 373.


The accused pleaded not guilty to this charge. He however, admits that he unlawfully and intentionally caused the death of THABO PHETA. But he claims that he did so in self-defence. Consequently, it would appear that most of the facts in this case are in the common cause. The greater part of these facts is contained in the depositions of the crown witnesses who appeared at the PREPARATORY EXAMINATION. On behalf of the accused and on his instructions his attorney indicated to the court that they admit as proven facts, all the facts contained in the depositions of PWs 2, 3, 4,


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5 AND 6. As a result their evidence at PE therefore becomes evidence led before this court.


The facts of this case, as gleaned from the evidence led before this court is as follows: The accused was walking to work at about 0530 hours. On the way a motor vehicle passed him. In that motor vehicle he saw a female passenger whom he suspected to be his wife. At the time the accused and his wife were living separately. His wife had left their matrimonial home over six months ago. The relations between them were not good. He had been looking for her without success. Anxious to satisfy his curiosity, the accused chased after this motor vehicle. Luckily for him that motor vehicle stopped at the nearby CALTEX GARAGE where he caught up with it. He approached that motor vehicle. The driver of the motor vehicle was standing outside it. The accused saw, the woman sitted in that motor vehicle and confirmed his suspicions that she was his estranged wife.


On the accused's arrival at the said motor vehicle the driver spoke to him. The accused pulled out a knife and stabbed that


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driver to death. The injuries, caused by the accused on the deceased with that knife, are described in the report of the POST-MORTEM EXAMINATION by Dr. Khutsoane, dated 19th April 1994. There are two wounds: one huge wound on the left side of the chest. It goes through the left lung-causing haematoma. The other wound is at the back of the deceased head. The weapon used by the accused to inflict these injuries on the deceased is also described in the Statement of the FORENSIC BIOLOGIST - BULARA ELLIOT KHOMOHAKA - sworn to before the Commissioner of Oaths on 9th September 1994. This is the witness's statement produced in terms of SECTION 223 (4) CRIMINAL PROCEDURE and EVIDENCE ACT N0.9 of 1981. It is a non-clasp-hunting knife with a handle. The length of its blade is 15.5 centimetres. It is sharp pointed. Its width at the widest part is 3 centimetres. The cutting edge of the blade is not very sharp but the point is fairly sharp.


There is no doubt that the deceased died from the injuries caused by this accused using the weapon described above. The FORENSIC BIOLOGIST was handed by the police the blood samples of


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both the accused and the deceased. He found and identified the bloodstain of human origin on the blade of that non-clasp-hunting knife which this accused had handed over to the police as the weapon he used to cause the injuries from which the deceased succumbed. The tests carried out thereon led to the conclusion that the bloodstain found on that knife was the exact type of blood as that of the deceased. There was no possibility whatsoever that it could have come from the accused.


In order that he successfully raises this private-defence as his defence against this charge of murder, there are certain factors which must be established. These are set out in the famous judgement of his Lordship, Watermeyer C.J. in R V ATTWOOD 1946 A.D 331 at 340.


  1. There must be sufficient evidence proving that there was threatened or actual unlawful attack upon the person of the accused, giving him reasonable grounds for thinking that he was in danger of death or serious injury.

  2. The means of self.defence adopted by the accused should not be excessive in relation to the danger. It should be the only means or the least dangerous.


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According to the evidence of the eye-witness - the accused person's own son, the accused was the person seen delivering or striking the very first physical blow with his non-clasp hunting knife. This boy was at that time (7) seven years old. He makes no mention at all of the alleged assault perpetrated by the deceased upon the person of the accused. The accused in his evidence claims that the deceased assaulted him with a sjambok. PW2 in his evidence supports this allegation by the accused. He says the deceased opened his van and pulled out the sjambok with which he lashed the accused many times. The accused drew a knife and stabbed the deceased. The accused in his evidence suggested that the sjambok lashes fell all over his person like rain. He gave me a definate impression that those lashes were so numerous and rapid that they fell upon him like drops of rain. He claimed that as a result, he had no chance to get away. PW2 however, says the accused kept on retreating. Using a reverse gear perhaps is neither the easiest nor fastest means of getting away. According to PW2, the deceased was the aggressor and he is the one who delivered the first blow. If I believe there was a rain of whiplashes which the accused must ward off and he could not,


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perhaps that is why he could not turn his back to run off. What other least dangerous means were at the disposal of the accused at the time and which he could use to avoid the danger?


The requirement that the means the accused used in order to avoid the danger, must be commensurate with the danger, does not necessarily mean that the accused should have also used a sjambok. The court must take cognizance of the prevailing circumstances of the case at the time. In our present case the accused was walking to work there in MAFETENG. He was from Maseru his permanent residential place. He said he was, during the week residing at the work camp. He had collected from his home for the purpose of chopping vegetables, this knife-the murder weapon. This was not a planned duel where the sword should be met with a sword or pistol with a pistol. This knife was the only available means in the accused's immediate possession. He may have stood his ground and used the most lethal weapon but the law does not require him to expose his back to danger by running away if there was no such chance of avoiding the danger. R V ZIKALA 1953 (2) S.A. 568 (A).


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The deceased, as the POST-MORTEM REPORT shows, sustained two stab wounds. The second wound is at the back of his head. The accused claims that the deceased was older, heftier and taller than him. How then did the accused manage to stab the deceased at the back of his head? Evidence shows that the deceased at some stage fell down. The accused persisted delivering further and more stab blows with that knife upon the deceased. The deceased warded off the same by making kick-ups which kept the accused at bay. By so doing the deceased managed to get up. He ran for his life. Maybe not aware that he was dying. He sought and found refuge in the nearby shop of PW4. Immediately upon his entry into that shop the proprietor who had seen the deceased come running to the shop and that he was bleeding, rushed to shut the door just in case the assailant is following in hot pursuit. The deceased died there and then.

The accused was asked why he stabbed the deceased the second time. He replied that he was defending himself. Against what? He


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could not say. He claimed he was now acting emotionally. Accused was asked why he stabbed the deceased at the back of his head-what danger did the deceased's back pose to his life? The accused continued to claim that he was overtaken by emotions. He was further asked why after the deceased had run into the place of safety, did he now go to slash the tyres of the deceased's motor vehicle? The accused replied that he acted under hot passion. He however never told this court what brought about the said emotions and passion. Even if the accused was acting in private defence, he by far exceeded the bounds of the private defence by continuing to seek and succeed to stab the deceased more wounds. He continued to attack the deceased even when he had fallen down. He stabbed the deceased at the back of his head presumably at the time the deceased was running away.


In these circumstances the accused is found guilty of culpable homicide.


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SENTENCE


The crown counsel has indicated that the accused has no criminal record of any kind. The accused's attorney has, relying on the evidence led in this trial, pointed out that there were marital problems between this accused and his wife at the time. The accused had been looking for his estranged wife for over a period of six months. When he laid his eyes upon her for the first time after such a long period of her disappearance, she was in the company of another man. The accused told the court that when he suspected the woman in the motor vehicle that passed him on the way, to be his wife, he followed it. Previously the wife of the deceased had enlisted the accused's assistance to bring to an end the love affair between the accused's wife and her husband. When that vehicle passed him the accused did not recognise the driver as the deceased. He thought the driver was one of the male relatives of his wife.


Strangely enough even at the time the accused finally caught up with that motor vehicle and identified the driver as this deceased, he says he was not annoyed or made jealous. The fact that his wife and


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this driver had an affair, was in the past. Acccding to the accused the matter had been satisfactorily sorted out and forgotten. I am surprised that the accused did not suspect that the deceased and his wife had spent that night together when he saw them together so early in the morning. It is even more suprising to learn that it was the deceased who on the arrival of the accused at the motor vehicle said "I told you I will catch you. The accused's son in his evidence said he saw the deceased talk to the accused when the latter arrived at the motor vehicle, but he did not hear what he said. Does it make sense for the deceased to tell the accused what he is alleged to have said to the accused?. With whom was this accused being caught? What were they doing? According to the accused's son, it was after the deceased spoke that he saw his father stab him. According to the accused and PW2, the knife was drawn by the accused after he had been repeatedly whipped with a sjambok by the deceased. In the mind of the accused's son, who was in his father's immediate care and custody at the time he testified, what was registered was the attack and assault with a knife upon the person of the deceased. I would have expected his own father's safety to be of paramount importance. He


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should also have been worried for his own father's wellbeing when he was lashed if at all there was such lashing as described by the accused and PW2 or at all.


The accused's own personal circumstances have been drawn to the attention of this court for its consideration. He has seven dependants. He has recently found a job. His wife is unemployed. The accused's absence from his family will result in some hardship being experienced by his dependents. This is what this accused has brought upon the family of the deceased although nothing is being said regarding their wellbeing. Although the accused's wife had left him, there has been a reconciliation between those two parties. They were together throughout this trial. She seems to support her husband. Waiting for eight years for this trial has been a torture to his accused. That is the form of punishment. Since the reconciliation occurred only during this trial, during this long period of delay the accused bore the burden of worry without the support of his wife. He may in a way have made good his debt to the society. His attempts to reconcile with the family of the deceased met with hostility. He is still


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expecting to be suit for damages by the dependants of the deceased for untimely removing him away from them.


The accused is sentenced to five years imprisonment, two of which are suspended for a period of three years on condition that the accused does not commit murder or assault during that period.


K.J.GUNI

JUDGE


Assessors : 1. Mrs. Tsatsi

2. Mr. Mathibeli


For Crown: Ms. Makoko

For Accused: Mr. Khauoe


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