R v Mositi (CRI/T/20/98)

Case No: 
Media Neutral Citation: 
[2004] LSHC 70
Judgment Date: 
19 May, 2004




In the matter between:





Delivered by the Honourable Mr. Justice WCM Maqutu on the 19th May, 2004

The accused is charged with the crime of murder.

"In that upon or about the 25th day of March 1995 and at or near Ha Tumahole, Mathokoane in the district of Leribe, the said accused did unlawfully and intentionally kill Zakaria Koloi Nkate."

On the second February 2004 accused appeared before me and pleaded not guilty Crown Counsel said there were statements of preparatory examination with which both parties were in agreement. Consequently Crown Counsel wanted them to read into the record with the consent of Defence Counsel.

Before this was done it became necessary for parties in terms of Section 273 (1) of the Criminal Procedure and Evidence Act 1981 to put on record the agreed facts. It turned out that Crown Counsel was mistaken. All that was agreed was the identity of the deceased and the fact that the stab wounds on deceased's body were inflicted by the accused. All other facts were disputed including the circumstances that surrounded the fight between accused and deceased.

When it because necessary to hear witnesses, it turned out that they had not been called, consequently the case was postponed to the 4th up to the 7th May 2004.

On the 5th May 2004 when the matter was heard, it was discovered that five of the nine witnesses that gave evidence at the preparatory examination had died. The deceased had died in March 1995 - nine years ago. The case which should have been heard in 1995 was being heard in May 2004. It goes without saying that memories of witnesses could no more be as reliable as they might have been.

Pwl Mathews Motseki having been duly sworn told the court that he was already in bed when he was called by Thandiwe Lebaea ( a girl) to go to where a fight was supposed to be between Sello Sefume and her brother. According to Pwl it was at night between 8 and 9 pm.


After passing Matiase Sefume's cafe Pwl heard the voice of accused Lefii Mositi. Accused seemed to be holding someone. Accused was saying: "How long have I been reprimanding you for talking about me?" Accused repeated this four times. Pwl told the court that he shouted to the accused "Lefu, Lefu what is happening?" Accused did not reply.

Pwl realised that accused was alone when he was 12 paces from accused. It was at that stage Pwl heard the voice of the deceased - Zakaria Nkate calling him - "Mr. Motseki is that you?" Deceased was lying on the ground. Pwl asked deceased what was wrong. Deceased said: "He has finished me." Pwl took away deceased from the fence. Pwl touched deceased and felt something like blood on the deceased. He sent a child to bring matches.

When matches had been brought Pwl found there was a pool of blood on the ground. Deceased was no more bleeding. Pwl was helped by a boy to take deceased to Maponts'o Lenkoe's home. Pwl sent a message to the chief and after some time both the deceased's father and the accused's father came. By then the deceased had died.

Under Cross-examination Pwl revealed that both accused and the deceased were his relatives. Pwl showed that he did not know what had happened before he came. Accused's Counsel put the accused's story to him which Pwl could neither deny or confirm. When Counsel put to Pwl that Pwl never found accused near where deceased was lying - Pwl stuck to his evidence.


Asked by Mr. Motsamai the assessor, Pwl confirmed that when he lit a match the blood had begun to coagulate and that the deceased was no more bleeding.

Ntsane Mositi Pw2 was the second Crown witness. Pw2 is the paternal uncle of accused, he is also related to the deceased. Pw2 who was a chief told the court that accused told him he had stabbed deceased with a knife that belonged to the deceased. He had done so in self defence. When accused came before Pw2, it was between 8 and 9 p.m.

Pw2 told the court that accused had also told Pw2 that accused had said his uncle the deceased had found him - with a woman called Mamonki. The accused had said deceased said he had told the accused that one day he would catch accused and then they fought. Accused had showed Pw2 no injuries that had begun inflicted by the deceased - if the memory of Pw2 does not fail. Accused had handed a white Okapi knife which accused said belonged to the deceased to Pw2.

Under Cross-examination, Pw2 was not in a position to deny that accused had shown Pw2 a tear in accused's lumber jacket caused by the deceased's knife as this happened a long time ago.

Pw3 Tlali Sefume was sent by Pw2 the chief - to take the accused to the police on the 26th March 2004. He had also handed the white Okapi knife that accused had used to the police.

The last Crown witness was Sergeant Habofanoe Mopeli Pw 4 who was the investigator of the case. His evidence was that he received the accused from


Pw3 together with the white Okapi knife that the accused had from information received used on the deceased. Pw4 then went to collect the deceased's body after charging the accused with murder. Deceased's body had three wounds at the back - between the shoulders and in the kidney region.

Under Cross-examination Pw4 said there was a wound on the right side of the chest, two wounds between the shoulders at the back. That made four wounds in all. Accused never said his lumber jacket was torn.

Accused in his defence told the court that he had been that afternoon at a feast where beer was made for ancestors. This was at his employer's place. He left with a woman called Ntsamaeeng on the way home. He had no love affair with that woman, but deceased was her lover. It was between 7 and 8 pm and there was a bit of light.

On the way they met deceased. Deceased said to Ntsamaeeng "What are you talking with that man?" Ntsamaeeng replied "Nothing, he is our family servant." Accused says he left deceased with that woman - Ntsamaeeng and went on. He was not aware that deceased would follow him. When deceased got to him he asked "where is the prostitute you were going with?" Accused said at that stage he was 80 to 100 metres from where he had left deceased with Ntsamaeeng.

There was no friction between him (the accused) and the deceased. When deceased asked the above-mentioned question, deceased had grabbed the accused's clothes at the back of the neck. Accused put his hand inside the pocket and said "I told you I shall catch you." Accused said to deceased:


"Do you want to kill me like the person you stabbed with a knife in Butha-Buthe?"

Deceased said: "Yes, I am now stabbing you, and I want to kill you." Accused told the court that as deceased was in the habit of killing people with a knife, he tried to take a knife from the deceased. They struggled for the knife until it fell to the ground.

Accused told the court that he tried to free himself from the deceased and reach for the knife. Deceased got hold of the hand of the accused that had got hold the knife. They struggled for possession of the knife. Before the knife fell, it had not injured the deceased. It was during the struggle while deceased was pushing the accused's hand that was holding the knife towards acccused's body that deceased was stabbed on chest with the knife above the breast. Accused had been trying to move the knife away from accused's own body when deceased received the stab wound. It was not his intention to stab the deceased.

Accused's intention was ultimately to take knife and run away with it. Accused told the court he could not run away with the knife because deceased was holding him. Accused said he was scarred because deceased has said he was killing him. He could not recall how long they struggled. Before parting with deceased accused said he had stabbed deceased in the kidney area.

Deceased had been on accused left side. Accused said he inflicted three wounds on the deceased. The third one was at the back on the left side. Accused told the court he was scarred and confused because of the actions of the deceased on him (the accused.)


Accused told the court that he was moderately drunk, that is why he can recall the events of that day. Deceased was also drunk, that is why he approached him aggressively. Accused told the court he had no knife, he stabbed deceased with deceased's own knife. After that he rushed to the chief to report himself after stabbing the deceased.

Under Cross-examination accused said he was born in 1963. He was the same age as the deceased i.e. between 34 or 36 years old. Accused said he is semi-literate. Deceased was his paternal uncle. Deceased had no reason to kill him. Accused had asked accused if he wanted to kill him because he had taken out a knife. Accused had left the deceased alive when he went to report himself to the chief.

Accused in cross-examination reiterated that Pwl never found him in the vicinity of where the deceased died. Accused had never quarreled with Pwl. Accused said he saw the three wounds he inflicted on the deceased, but he had not had the time to check the number of the wounds because he never saw the wounds.

Cross-examination of the accused further revealed that deceased was behind accused holding the knife. Deceased's second wound was at the back below the shoulder blade towards the front. Deceased was stronger although their height was the same. The wound on the chest weakened the deceased and it was the first one. When accused was about to run away, deceased was holding him. Accused and deceased struggled over the knife twice. The first time deceased had possession of the knife. The second occasion was when the knife was in the accused's hand, that is when deceased suffered the


first wound. After that accused was able to inflict the second wound with2Xout much resistance.

Re-examined by his Counsel accused said he did not use maximum force when he stabbed the deceased, he used minimum force. He had not made his hand firm. He did not use his hand hard on the deceased. Accused said he was able to free himself from the deceased because of the last wound on the kidney which was the last wound he inflicted.

Asked by the court accused said the deceased produced the knife before he came in front of him. There was moonlight. Accused said he saw the deceased's hand go into his pocket. It should be noted that Pwl said it was dark and he had to find matches to light in order to see.

The postmortem examination report was handed in by consent and marked exhibit "A". The cause of death was haemo pneurno thorax on the left side. It showed deceased had a punctured stabbed wound on the left upper chest anteriorly and another wound posteriorly on the left posterior chest. The last one was on the left lumbar region.

Evaluation of evidence:

We do not accept the evidence of Pwl. The blood could not coagulated if he came as early towards the end of the fight between accused and deceased as he claimed. He must have come much later. In any event it is not clear why Pwl did not get to the other fight for which he had been woken up. The only thing that we accept is that it was dark.


It is not disputed that the accused caused the injuries on the deceased. The accused says they were inflicted accidentally in a struggle for possession of the deceased's knife with which deceased was trying to kill him. Accused is not saying in a straight forward manner that he killed deceased in self defence.

The court has also to decide whether indeed the knife that the accused used to kill deceased did in fact belong to the deceased. Accused is the only one who knows the truth, there is no other direct evidence to contradict the accused. The accused's evidence to be believed or to create a reasonable doubt has only to be possibly true. Accused has no onus to prove his innocence. Accused should not be found guilty merely because he is a liar. Indeed it is not unusual to find truth and lies all mixed up in a case. Where there is any reasonable doubt - in our law, the accused gets the benefit of such a doubt. Yet accused's lies cannot be ignored because of the complexion they might give to the rest of the evidence and the case as a whole.

Although the accused in his defence is not firmly claiming self-defence, the sum total of what he is saying amounts to self-defence. M.P. Mofokeng in Criminal Law and Procedure Through Cases at page 235 says "self-defence envisages that a person who kills had little or no choice... Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had both the time and opportunity to weigh the 'pro and cons'. ... The onus of negativing self-defence in a Criminal case is on the Crown - as M.P. Mofokeng in Criminal Law and Procedure Through Cases at page 260 has correctly stated.


In M. Monyane & another v Rex 1985 - 90 LLR182 at 184 Peete AJ (as he then was) was dealing with a case in which the accused claimed they killed the deceased who was trying to produce a pistol or a knife. In that case they were contradicted by two witnesses. In this case there is no other witness because there was nobody else present. What the Monyane case demonstrates however, is that it is very common for accused people to falsely claim they were defending themselves when they killed the deceased. If what the accused claim is reasonably true then the court has to give them the benefit of the doubt.

The accused approach was rather that he could only escape liability if he could show he could not run away in the situation he found himself in. His wish was to run away or run with the knife or put it beyond the decased's reach. That is not a realistic approach. Holmes AJA in R v Patel 1959 (1) SA 121 at 123D said "the court must beware of being an arm - chair critic, and must take into account the exigencies of the occasion." If the court from the facts finds a probability that the accused had to defend himself then it has to accept that the accused is innocent. All that is required is his life being imminently threatened and that he reasonably believed he might be killed. Running away, if indeed his evidence is true, would be a speculative arm - chair option in such circumstances.

In this case we have to go through the evidence with care. The accused says his mind was clear although he was moderately drunk. His story is that deceased took exception to the fact that accused was with deceased lady lover Ntsamaeeng at night or at dusk. That is probable. Accused left deceased with Ntsamaeeng.


Accused had not walked 100 metres when deceased who must have been following him got to him and asked him where Ntsamaeeng was. This was strange because accused had left deceased with Ntsamaeeng. The chief Pw2 does not back up the story. Pw2 says accused told him deceased had said to the accused (who was with Ntsamaeeng at that time) - that he would one day catch him and they fought.

Accused has potrayed the deceased as a killer who had killed some one in Butha-Buthe. This was not put to the chief Pw2 who was the common relative of both accused and deceased. Perhaps this killing of a person was known to the accused - not to Pw2, which is rather strange because accused had said deceased is in the habit of killing people.

Accused did not give a convincing explanation of how he saw the deceased who was behind him produce a knife. Accused is not telling the truth, this account of how the fight took place is improbable and full of contradictions. It is strange that he could gently stab the deceased when he was fighting for his life. Accused admits causing injuries on the deceased not stabbing deceased. If deceased was of the same height and was stronger than accused, the accused ought certainly to have been desperate and consequently accused would have been using all the strength he had.

We do not accept that the knife belonged to deceased. Indeed if deceased wanted to kill accused, he could have killed accused easily if accused account is true that deceased caught accused from the back. He could not have seen the deceased take out the knife from the pocket. Accused told the court that he saw the deceased's wounds but later had to concede that was not correct. He could only know the number of wounds if he inflicted them,


not if the knife cut deceased by accident caup-2Xsed them 12Xduring the struggle as his evidence discloses.

The fact is that accused and deceased were of the same height and were both young. Accused did not sustain any injury. Accused is not saying in a straight forward manner that he was defending himself from the deceased when he stabbed the deceased with a knife. He claims that the knife wounded deceased by accident. All accused says he was doing was to keep away the knife from injuring him when it cut deceased accidentally, inflicting three wounds. We are satisfied beyond reasonable doubt that the accused's story is false.

Accused has not made a case for a possible threat of injury or a possible threat to his life. He has created a false story that deceased was a dangerous killer - if deceased was, accused would have sought support for this from Pw2 who was his uncle and who could not let him down, and did not let him down in his evidence. No questions were put to Pw2 about the deceased killing a man in Butha-Buthe.

From the totality of the evidence we believe the accused lied about how the fight started. Furthermore he tried to foist the knife on the deceased. He gave improbable evidence on how the fight started and how he could have seen the knife in the dark. He claims to have seen accused take out an Okapi knife from the pocket. Accused contradicts himself badly as to how he could have seen this. We have no doubt that the knife was from the accused himself from the analysis of evidence.


This story of the tear of his lumber jacket is unsupported. Pw 2 does not remember if the accused showed this to him, Pw4 the policeman definitely says accused did not show it to him. Accused suffered no injuries at all. He did not even wish to estimate how long the fight between him and deceased took place. We reject the accused story as false beyond doubt. I accept the evidence of Pw2 that accused and deceased fought over Mamonki or Ntsamaeeng because that is the report accused gave to Pw2 after the incident. Accused according to Pw2 had said deceased had said to the accused he had told the accused that one day he would catch him and they fought. Accused was very drunk according to Pw2. Accused says he was drunk but not too drunk to know what he was doing.

Like all drunk people both accused and deceased had short tempers and unbalanced judgments. Consequently they fought over Ntsamaeeng who was the deceased's lover.

In the circumstances we find the accused not guilty of murder - but guilty of culpable homicide because of the drunken fight that occurred over Mamonki or Ntsamaeeng. We are satisfied that using a knife on the deceased was excessive as the deceased was not armed. We have no doubt that accused is falsely saying the knife belonged to the deceased to avoid liability.

Accused stand up.

You are guilty by Culpable Homicide.

My assessors agree.


After hearing of a plea in mitigation and that accused was a first offender -Accused is sentenced to 3 years imprisonment.