IN THE HIGH COURT OF LESOTHO

HELD AT MASERU CRI/T/45/97

In the matter between:

REX

v

KHANTSI MOTSOELI First Accused (Al)LIPHOKO MOTSOELI Second Accused (A2)

For the Crown: Miss Mokitimi

For Defence: Mr Fosa

Judgment

Delivered by the Honourable Mr. Justice T. Monapathion the 18th day of September 2002

Deceased Thabiso Kalake died on the 13th September 1994 at or near

Lekokoaneng, in the Berea district.

There was no dispute that the Deceased died as a result of a stab wound

on the shoulder inflicted with a knife. Deceased had had other injuries on the

head. What remained was whether the people charged with the murder killed

the Deceased with the requisite intention to kill.

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The two Accused were charged with the murder of the deceased. They

pleaded not guilty to the charge. The Accused in 1997 were said to be both of

the age of twenty two (22) years. They cannot both be of the same age since they

are brothers.

It looked like there were two fights between the two Accused and

Deceased the latter who was joined by PW 4 on the last and fatal fight which

followed events of the previous day or alleged unsavoury conduct by Deceased

towards A2's sister.

A Preparatory Examination (PE) had been held after whose completion

the Accused were indicted. Of the seven depositions of the witnesses who

appeared before the PE those of Mamotlatsi Nte (PW 2) and Tona Kalake (PW

1) were admitted and read into the recording machine and were declared to be

part of the proceedings.

The events of the first fight were between Al and A2 the aggressors on the

one side and Deceased on the other side will be largely common cause. It is the

events or sequence of the events of the last fight which are contested on a really

narrow plane if not on an even restricted legal issue as to whether A2 had

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intention to kill when he stabbed.

PW 2 testified at the PE that she had seen people going towards a certain

place in the village. She followed those people. There she found the Deceased

with one Itumeleng Kalane (PW 1 at PE) who later testified as PW 4 in this

Court. Deceased had sustained injuries on the head and a stab wound on the left

shoulder.

The witness did not ask the Deceased about how he sustained the injuries.

PW 4 gave an explanation. The witness walked the Deceased who they

supported for distance but he got tired. The witness then raised an alarm after

she had left the Deceased with PW 4. The witness set about finding a vehicle to

carry the Deceased to hospital. She had also intended to report the matter to the

chief.

When the witness returned she found that the Deceased had been moved

to Deceased's home. A vehicle had been obtained. And the witness and the

Deceased travelled to the hospital and Charge Office. The Deceased was in the

presence of the witness, conveyed to hospital. On their journey from home the

Deceased sustained no further injuries.

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On the following day Deceased was reported to have died. The witness

was also asked by police to hand over the Deceased's stick and she complied.

PW 4 at the PE Tona Kalake deposed that Deceased was his younger

brother's son and had otherwise been in good health when he got a report about

his death.

The witness later identified Deceased's body before the doctor who

performed a post-mortem examination. The body of Deceased was later

released to the witness for burial.

PW 1 at the trial was Sam Khelemethe. He testified that there had been a

drinking session at the kraal on this day of the fight. It was after a wood

gathering "letsema" Deceased was present at the gathering. What became

unusual was that A2, while at the same time delivering a blow with a stick on

Deceased, remonstrated with him "to do that what you did or attempted to do

yesterday." A2 would say that the Deceased, who was being urged by PW 4

through provocative dance and statements, was the original aggressor. He

would say that as a result his helmet even got broken by Deceased's blow with

a stick.

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The witness stated that A2 delivered another blow. The third blow was

warded off by the Deceased with his own stick. It was at that time when Al

came from behind the Deceased and struck the latter with a stick after which the

Deceased ran away.

PW1 said he followed the Deceased and the two Accused who however

overpowered him. Further on the witness noticed that PW 4 had joined as a

result the witness was able to intervene. After PW 4 joined Deceased had then

refused to go home said he wanted to go back "where people were". This

suggested that he wanted to continue with the fight.

Deceased and PW 4 had then gone back to where the Accused were. They

met Accused along the way. The witness had then decided to go home and not

get involved any further.

As the witness passed next to where the Deceased was with the Accused

he noticed the Deceased fall against the fence and as soon as he did that A2

stabbed the Deceased with a knife on the chest.

In my view it will be significant as to why A2 was seen stabbing the

Deceased with a knife when the accepted story will be that at that stage Al was

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the one who was pitted against the Deceased while A2 was on PW 4 in a stick

fight. The Court will deal with this later on.

The witness continued to say that he saw the Deceased hit anyone and he

never saw A2's helmet being broken. He also said he did not see any stones

being thrown towards the Accused by Deceased and PW 4. He did not see

Deceased assault anyone.

This witness' evidence was largely unchallenged about the general flow

of events. He said it was the Deceased who first arrived at the kraal. Later

arrived Accused who then charged the Deceased as said before.

This witness confirmed therefore that there were two stages in the fight

between the Accused and Deceased who was joined by PW 4. In addition that

at the kraal it was A2 who arrived finding Deceased already present.

PW 2 Manthofeela Habasisa testified that the gathering at the cattle kraal

was a result of a wood gathering "letsema" after which the participants were

being given food and beer.

She had but gone into the house after attending to those gathered outside

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that she heard sounds of sticks at the kraal. As she looked outside she saw

Deceased covered with blood on the face. He was running away and the two

Accused were chasing after him presumably towards the fence of one Mapuleng.

The witness said she noticed that PW 2 was armed with a knife. She.

decided to run behind the group. At the same time she was shouting "Beware

of the knife". At some point Al threatened her with a stick as she was asking

what the problem was. It was then that she heard Deceased say to PW 4 that

they should "go back to the people." This suggested that they should re-engage

the Accused in a fight. The witness went back to her home. This witness'

evidence was that when she arrived at the yard of 'Mapuleng Deceased already

had wounds. She had not seen anyone assault the Deceased.

PW 3 was No. 38734 Police Woman Ntsitsi. Her evidence was to the effect

that around September 1994, while on duty there arrived the two Accused who

gave her a report. They handed to her two sticks together with an Okapi knife.

The items would be handed in as exhibits in Court. Having given her an

explanation she cautioned them and gave them a charge of Assault with Intent

to Cause Grievous Bodily Harm. The witness later handed over the three items

to policeman Khobatha. She contended however that she could positively

identify them since they were handed to her. She further contended that

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although she could not recall which stick belonged to which Accused those

sticks handed to her were not broken.

PW 4 was Itumeleng Khalane. He testified to say that on the day in

question the two Accused joined others at the home PW 2 after other men had

arrived from wood gathering in the forest. He had been with Deceased who

went to kraal his cattle. They later rejoined and went together to PW 2's place.

It was where they found the two Accused and other people.

As soon as they had arrived the witness went on to testify at PW2's place

(apparently it was near a kraal) he saw the two Accused belabouring the

Deceased with sticks. Deceased eventually managed to run away. The two

Accused chased after the Deceased but they were prevented from going farther

in the chase by the witness and PW 1.

The witness said that the two Accused ended up getting to the Accused

on the fence of 'Mapuleng where on arrival the Deceased fell down. As soon as

he fell on the fence the Accused continued to strike him with sticks. That the

Deceased had been unarmed.

The witness continued to say as soon as after the Deceased had fallen on

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the fence he saw A2 stab the Deceased along the shoulder area. The Deceased

then fell down.

The witness then said he supported the Deceased to walk to one

Mamotlatsi's place. That is where he left the Deceased who was still alive at that

time. He later learned about the Deceased's death the following day.

Under cross examination the witness said he did not hear the words of

challenge from A2 to the Deceased. He says he could have heard those words

if uttered because he was close enough.

Furthermore the witness did not see Deceased holding a stick. This was

much against the evidence of PW1 and the general evidence that the Deceased

had travelled back from where he was and came back to the Accused to engage

in a fight with sticks. This is much probable when considered with the fact that

the Deceased had said he wants to come "back to the people". That expression

suggested that he was itching for a fight and actually came back to engage the

Accused together with the witness. The witness denied that such statement was

uttered.

The witness denied that the Deceased could ever have delivered a blow

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in that he did not fight nor was he armed with a stick.

The witness denied furthermore having seen PW 1 who said he was

present and did even intervene. He denied even seeing the Deceased's stick fall

inasmuch as Deceased did not have a stick at all. This was much against the

evidence of PW 1.

This witness who appeared to have been all along in company of the

Deceased soon after Deceased re-joined him after kraaling his cattle was a very

evasive and untruthful witness. He attempted to avoid obvious things such as

that he and Deceased came back to re-engage the Accused although the Accused

gave a different reason for having followed up the Deceased and the witness.

The witness however has to be believed that ultimately the two Accused

on the one side the Deceased got into the fatal fight. Nevertheless he denies his

own involvement. I would believe that this witness was also involved in the

fight with A2 at one stage. It is one of the things that he hesitated on or was

reticent about that made him unreliable in some respects. Apparently it was to

down play his role in the whole affair. It is however undeniable that he was in

company of the Deceased on the second occasion which is the crucial one i.e.

after the Deceased was chased away from the place of PW 2.

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The Crown closed its case after the evidence of PW 4. The two Accused

each gave evidence in their own defence starting with Al.

Al testified that A2 found him with PW 4 at the kraal of PW 2. PW 4 had

told the witness that he was going to sleep and had apparently left. Al was

surprised to see PW 4 coming back in the company of the Deceased. The two

were waving their sticks in a war-like dance and song.

Al testified further to say that when the Deceased was near him he had

been complaining that there was no "manly" songs (mokorotlo) being sung at

the kraal where men had assembled as aforesaid. At the same time Deceased

belittled and abused calling him a woman and an uncircumcised "boy".

As the evidence went Deceased first hit A2 with a stick and the blow

landed on A2's plastic helmet. He tried to intervene in response to which PW 4

said "two, two!" This was to suggest that one was to pick his adversary in

combat. A2 had then produced a knife. That is when Deceased ran away.

The witness says he chased after PW 4 at this time but ended up not

reaching the place where the Deceased and A2 were fighting. After some time

Deceased and PW 4 approached the two Accused person throwing stones at

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them. The former seemed to be in a fighting mood. As they arrived at the place

where the witness was the Deceased came and fought the witness while PW 4

fought A2.

I noted, and this was significant, that it came from the mouth of Al that

he hit the Deceased with a stick after which A2 came and stabbed the Deceased.

And furthermore that at the time when A2 stabbed the Deceased the latter was

leaning against the fence. After that both Accused left the scene. The witness

then claimed that he had not seen the exact place where Deceased was stabbed.

What was even more important to note was that at the last scene this Accused

had been fighting with the Deceased on whom A2 suddenly came to deliver a

blow with a knife. Incidentally the First Accused was candid enough to admit

having assaulted the Deceased with a stick until the moment when Deceased

had fallen and then A2 took over with fatal consequences.

DW 2 who was A2 claims in his evidence that Deceased had been

troubling his sister and the Deceased was reprimanded by the witness.

Apparently this complaint against the Deceased must have been reported to the

witness later.

The witness then said later he went to the place where wood was being cut

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and there found Al to whom he made a report about what was reported to him

about the Deceased's previous conduct.

After some time, the Deceased arrived. Deceased then passed a remark

to the effect that the witness and others around at the gathering were women the

witness being the worst of them. It was at about that time as the witness stated

that the Deceased hit him with a stick which broke his helmet. The witness then

said he levelled a blow with a stick and managed to hit him on the head. The

Deceased then delivered another blow which the witness managed to parry with

his stick which got broken in the process. A2 said he then took out a knife and

the Deceased ran away. People intervened. A2 said he and Al then left after

they were separated from the Deceased and PW 4.

The two Accused then left the scene. After some time they were

approached by the Deceased and PW 4 who were throwing stones at them. The

witness said they approached the Deceased and his partner because they feared

that if the others went unchallenged they would break windows at Al's home.

The two pairs approached each other and a fight ensued. Al faced the Deceased

while the witness fought PW 4. Al then hit the Deceased who fell on the ground

but supported himself on a fence. The witness then left PW 4 with whom he was

fighting and went and stabbed the Deceased with a knife on the shoulder. After

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that the fight stopped.

As I have said in the beginning of the judgment it was largely agreed that

there were two incidents or fights involving the two sides of the Accused and the

Deceased with PW 4 on the other hand. The two groups seemed to have

followed closely on each other. To the extent as I found when PW 4 and

Deceased turned back and returned the other pair seemed to have been

following but not sufficiently closely.

Admittedly both were keen to be involved in a fight. It was however not

as if the Accused would not have avoided the Deceased and his partner if they

wanted to inasmuch as other people successfully intervened and separated the

two groups. Even if one would read into the events up to this stage that the two

Accused could have acted in self-defence or through provocation I would find

it difficult to accept that this extended up to the second stage of the events that

is the second encounter. The two events seemed to be separable. The reason

why the Accused pursued the other group was primarily that they thought the

other group would break windows by stone throwing.

I agreed with Crown submission where was simply put to say that the

evidence put in Court can be said to be that both the prosecution and the defence

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had two different stories. And that however one thing which was common was

that both Accused persons managed to assault the Deceased with sticks and A2

was the only person who stabbed the Deceased.

Though not explicitly said by the defence it could be read from the

evidence however and Counsel vacillated between the defence of either

provocation or self defence. If it was assumed that defence of A2 was

provocation the Crown as submitted, would concede that as to the first stage of

the fight there could have validly existed such provocation. But A2 had not

responded immediately and this was his undoing.

Enough time had elapsed between the provocation and the fighting as

both Accused admitted. They said they had been made to stop pursuing the

other side and they only reacted later because stones were being thrown. The

Deceased and PW 4 had been effectively ignored except for their stone throwing.

In the light of the fact that enough time elapsed between the provocation

and the fighting the defence of provocation would not stand as I concluded.

Time which is of essence of the purpose of the defence. As a matter of fact the

Accused even said they had been prepared to ignore the Deceased and his

partner but for the fact that they came back throwing stones.

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The law in Lesotho is that if the defence of provocation stands the accused

shall be acquitted. And if the defence is successful there should not even be any

conviction for a lesser offence. This should also be the finding in respect of Al

although he said he was defending his brother. His conviction for Assault with

intention to cause grievous bodily harm should stand. The Crown's contention

was that this was a case where a defence of self-defence ought to fail. I agreed

with respect.

I judged the cases of the two Accused different with respect to the

approach to the stabbing of the Deceased which was the last stage of the

proceedings. Indeed it could on the one hand be said that it was a fight

involving the four fighters two against the other two. It meant that, and this

was the evidence, that A2 faced PW 4 and Al faced the Deceased. At the time

when the Deceased had been overcome and beaten to the extent that he leaned

against a fence A2 left his opponent and then administered a stab wound on the

already helpless Deceased. While admitting that he looked away from PW 4 and

faced Deceased who he stabbed he very glibly explained why he abandoned PW

4 and charged at Deceased who was already vanquished and defencelessly

having been grievously assaulted with a stick by Al. A2 had been wielding his

knife not since but even on the first stage of the fight up until the chase was

stopped by people who intervened as said before. A2 was possessed of the knife

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on the next stage. I found I could not find intention against him merely because

he had been knife wielding over a long time.

A2 said it was in the heat and during the run of the fight that he found

himself facing Deceased when hitherto be (A2) had been facing PW 4. In the run

of the fight he had turned to the Deceased who he stabbed because he still felt

threatened by the Deceased. It can only mean that he overacted in his action

against the Deceased as I believed him. See Julius Pone v Director of Public

Prosecutions 199-2000 LLR 214.

I would say this that A2 overacted even against the background that this

last fight followed on an earlier encounter and that the intent of the Deceased

and his partner on the last occasion was to re-engage the two Accused according

to the evidence of PW 4.

The evidence of A2 might reasonably be true and even on his own

evidence a case of culpable homicide can be said to have been proved. I would

not say that the Crown proved its case beyond a reasonable doubt that A2 was

guilty of intention to kill either dolus or otherwise. He can only have killed the

Deceased negligently.

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My feeling is that Al is guilty of Assault with intent to do Grievous Bodily

Harm and A2 is guilty of Culpable Homicide.

My Assessor agrees.

T. MonapathiJudge

SENTENCE

Delivered by the Honourable Mr. Justice T. Monapathion the 8th day of October 2002

The two Accused are cousins. In Sesotho "Emong o re emong ke oa

Rangoana'e". The first one has been convicted of assault with intent to Grievous

Bodily Harm. This other one has been convicted of Culpable Homicide.

I agreed that the circumstance surrounding the two assaults are primarily

out of the provocation caused by the Deceased. It had to do with the remarks

that the Deceased is said to have said about the other Accused being a woman

or something like that. And also against the background that there was an

unsavoury something that the Deceased had done to the sister of one of the

Accused which seemed to have occurred before or the day before that day of

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"letsema" where wood was to be gathered.

Thereafter that "letsema" there was drinking and merrymaking at the

place of PW 2. The Deceased and PW 4 having arrived finding either Accused

1 (Al) or Accused 2 (A2) present. After those remarks by the Deceased there was

some fighting with sticks. At that time A2 was seen carrying a knife. Then on

the second occasion it is then that there was that final fight which resulted in A2

stabbing the Deceased.

In my judgment I remarked that I did not understand why A2 had to stab

the Deceased when the Deceased had been fighting with Al. These are the

circumstances about the fight itself or the events which ended up with the

Deceased dying. These I have discussed in my judgment But they all underline

the fact that the Deceased provoked the Accused and finally carried the last fight

to the Accused.

I noted that these two Accused persons are first offenders because Mr.

Kotele says there are no records of these two Accused having had any previous

convictions. I have considered the factor in my sentence.

Both these Accused as I accepted have got the dependents to a different

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extent. The First Accused having a wife and three children. The Second being

married with one child. This is an important thing to consider.

But the death of a Deceased person is a serious thing in that a life has been

lost. The Deceased must have had the dependants or might be having relatives

in the same way the Accused do have. He will never come back to life. But these

two accused even if I sentence them to prison they will still come back from

prison into their own communities and families.

I have to re-visit the serous thing that the Deceased seemed to have been

the person who provoked the two accused extensively. And in evaluating this

provocation one has to look at things through the eyes of the standard of the

community from which these two Accused come from as our law enjoins us to

do. Both of them come from circumcision school and obviously they see things

differently in my understanding. And this I would take judicial notice of that

in the people who come from circumcision school are not happy if one suggests

to them that they are boys or they are women or something like that. To them

that is serious kind provocation.

I do not know why people from the background of the Accused see things

that way. That is why the law says that one must always judge them by their

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own standard. I would say that I agree with Mr. Fosa that Accused are

unsophisticated people and they are Basotho tribes men.

I noted again that they have been faithful in attending at trial, in abiding

by the conditions of their bail and including that they have obeyed the warning

that they attend even after they were convicted when their Counsel had fallen

ill.

The courts of this land are often warned that in having to impose

sentences they must avoid being angry or end up exaggerating the seriousness

of an offence. At the same time one must not as presiding officer forget that one

must mix other consideration with the need for mercy. But the mercy which one

exercises must not end up making a sentence that one imposes too lenient

neither should the sentence be too harsh. It is because sentences that are too

lenient or that are too harsh will look nonsensical and will tarnish the reputation

of Courts. Sentence must be realistic.

Sentences that are realistic will have to take account of the fact that the

public has interest in the judgments and rulings that are passed by courts. This

is proper and to be expected because the Courts belong to the nation.

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At the same time the Court must not overlook the personal circumstances

of an accused persons it is said that they are unsophisticated people as a factor

together with their family situation.

The Court must look at the crime itself. I have commented about that

there was that first fight there was a second fight in which there was the assault

and the death of the Deceased person. All of these which are serious offences.

I now come to an important issue that receives debate on a daily basis in

our courts. Then the question is what is the aim of punishment. One of them

could be that a corrected person is warned not to repeat the crime that he has

committed. Others are warned who may be tempted to commit the same crime

nor commit offence. Sometimes a person is taken out of the community to

protect the community like sending him to prison. Sometimes a convict is

dispatched finally by sending him to death so that he never trouble anybody.

To others question still remains : What is the purpose of punishment?

The modern trend is to say that corrected person must be rehabilitated.

Their behaviour must be corrected. If they sent him to prison it must also be for

the purposes of their being rehabilitated. And there are many ways of

punishment these days that aims at or focus on rehabilitating an offender. And

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of course it depends on the resources of a community or the satisfaction of a

system that is being run which would dictate a number of options. That is why

if it is a country which has many resources then there are many options. Our

country is not one of them. To a poverty stricken people fine are not an easy

option. That is why we still remain with a sentence of a prison where otherwise

other options would fit the bill. One of them is diversion. The other that needs

more emphasis is Community Service.

And what is unfortunate in its result these days is that Courts now are

looking inside the prisons to find what they really look like. The conditions

these days are worrisome. There is overcrowding, there are insanitary

conditions and a lot of bad things now happen in prison. One finds that there

is sodomy and rapes in prison.

Having said all these I now impose the following sentences:

You Al I sentence you to three years. That three years I willsuspend for three years on condition that you will not commit acrime involving bodily harm or violence.

You A2 I sentence you to five years imprisonment without optionof a fine. Those I do not suspend.

That is all.

T. MonapathiJudge