R v Khoaele Thinyane (CRI/T 150 of 2005) [2009] LSHC 55 (16 January 2009)

IN THE HIGH COURT OF LESOTHO HELD IN BUTHA – BUTHE CRI/T/150/2005 In the matter of REX VS KHOAELE THINYANE JUDGMENT Delivered by the Honourable Mr Justice T. Nomngcongo on the 16th January 2009 The accused is charged with the crime of murder in that upon or about the 12th April he unlawfully and intentionally killed Ts’ilo Makoetje. After the accused had pleaded certain admissions were made and read into the records. They were statements to the effect that having learned of the death of the deceased allegedly at the hands of the police, they proceeded to the Thaba-Tseka police station to find out the circumstances surrounding the death of T’silo Makoetje the deceased. The witnesses were Headman Kakalesoe Ntaote, Jakhomo Makoetje and Motlalentoa Ralibuseng. Admitted also was the statement he saw two men on horseback and another going in the direction of the deceased’s cattle post when they crested a hill they came in view of the deceased who was taking his sheep to pasture. It is his evidence that when deceased saw the trio approach he ran away. He then heard a gun report and he saw the sit down. The three people then went to him and walked around him. He together with other herdboys then went drive their cattle and disappear from view. Admitted again the post-mortem and the Ballistic report. The crown then led the evidence of two witnesses, Matlotlo Ntabe and D/Inspector Ts’iane. Matlotlo Ntabe testified that he had been under arrest on a suspicion of stock theft when the accused had occasion to call him for his cell and asked him if he knew the deceased and where he said. Matlotlo answered both question in the affirmative and said that deceased stayed at Ha Sibili cattle post. The accused informed him that the sheep he had stolen were there and he and the witness would proceed there. The following day he was indeed woken up at dawn and on going out he found that the accused and inspector Tsiane had two horses already saddled. They proceeded to Ha Sebili and upon cresting the hill they met sheep going to pasture. The deceased was standing near a pile of wood near the cattle post hut. He then heard a clicking sound whereupon he turned to look at the accused. The gun he was carrying went off. The deceased jumped up and fell down. Inspector Tsiane asked the deceased what he was doing. It does not appear that he responded to that question. Tsiane then radioed someone who then asked him “Have you killed that person”. Tsiane replied in the affirmative. The person on the other said people were coming. Two policemen did indeed arrive about three hours later. They took photos and looked for shells. They found them and put them in a brown envelop. The deceased and the rest of the party left to where a vehicle had been parked and the deceased was taken away in it. Next came D/Inspector Tsiane whose evidence is similar to that of Matlotlo regarding how they left Thaba-Tseka early in the morning and got to Ha Sebili where he says upon coming on top of a hill he saw someone driving sheep from the cattle post to pasture. He says he then dismounted and sat on a rock. He called the deceased so that they should talk. He says he was immediately shocked by the sound of two gun reports and on turning he saw that it was the accused who was carrying his gun in a firing position on looking where the deceased was he saw him fall down. He says the deceased never had a chance to respond to his call as there was no time between the call and the gun report. He then rushed to where the deceased was. On arrival he noticed that he had sustained a wide open wound on the left side of the chest and much smaller one on the right side indicating that it was the entry wound and the other exit. There were according to this witness very little signs of life. He attempted to stop the bleeding but soon realized that deceased was, as he says, already finished. He then radioed the police at Thaba-Tseka and reported the incident. The head of C. I. D Inspector Mokuena and a Sgt. Molelle arrived. They examined the body of the deceased. They looked for and found shells. The accused was present all the while and he looked very perturbed. The deceased was then taken away. He says consequently they were not able to complete their mission viz. the pointing out by the suspect of stolen stock. The suspect was subsequently released. Cross examination of both witnesses sought to establish that the deceased was shot because he was fleeing, the suggestion being that he was fleeing from lawful arrest. The witnesses denied completely that the deceased ever ran away. It was also put to the witnesses that when the accused shot at the deceased he aimed for the legs but because he was a bad-marksman he missed and hit him in the chest. It was suggested also to Matlotlo that deceased was shot in the back. This was an attempt to reinforce the accused’s assertion that deceased was running away. The accused’s story is no different from that of the witnesses except to say that the reason why he shot the deceased was that he was running away. He aimed at his legs but being a bad marksman he missed and hit him. He says in this regard that when deceased saw that they were policemen he ran away instantly. Sgt. Tsiane (as he then was) called the deceased and said he should not run away. He nevertheless fled. He says Tsiane asked him. “what are you doing letting this man flee.” He did not understand this to be an order to shoot but to finds means of apprehending the deceased. He tried to shoot at his legs but because of human weakness the shots found their target on the body of the deceased. Besides shooting him he says he had no other options. Because he was very frightened afterwards he did not do anything to help the deceased. Finally the accused quite strangely was never arrested for the killing nor has he ever appeared before a magistrate. There is no dispute that the deceased died as a result of a gun-shot would fired from a rifle by the accused. The only point of factual contention is under what circumstances the shooting took place. Accused’s story is that he ran away when he saw Matlotlo in the company of police officer. It is argued that he ran away because he knew that he was in possession of stolen goods. In this regard it must be remembered that when the party set out for Ha Sebili it was for the purpose of pointing out stolen stock and not to arrest the deceased. Both Tsiane and the accused make this very clear. They make no mention of any intention on their part as they set out, to Ha Sebili that they were going there for the purpose of arresting the deceased. Whether he ran away or not, a fact strongly denied by Matlotlo and Tsiane, was really irrelevant. Be that as it may, there is uncontradicted evidence that the deceased sustained wounds to the chest giving the lie to the suggestion that he was shot at the back while fleeing. It was put to Matlotlo that he lied about the deceased not running away Because he expected a benefit in the form of the police not prosecuting him For the theft he was then suspected of. On other words, the police promised the witness a benefit to testify against a fellow policeman. We have not been told why the police would embark on so weird a scheme. This was not put to Inspector Tsiane on behalf of the police. The accused himself certainly did not say anything about why the police might have so badly wanted to incriminate him that they embarked on such a scheme. Regarding Inspector Tsiane, the accused said nothing about any motive on his part to incriminate him. It was only suggested in argument that it was because he had given the order to shoot. But the accused himself said he had not understood whatever order he had been given as an order to shoot but to apprehend the deceased in whatever manner he could. Then he says he had no other option other than to shoot. But quiet strangely under cross- examination he says he gave chase to the deceased who outran him. The accused could not have forgotten to mention so crucial an aspect of his defence. It was an after-thought. He (accused) pins his hopes on the admitted evidence of Thabiso Ntabe whose testimony was that the deceased ran away when he saw the trio approach. Thabiso was not submitted to cross-examination at all, unlike the witnesses who were before court. Those witnesses appear to have been much near to the scene than Thabiso. In any case his powers of observation are suspect. He says that after the gun reports the deceased sat down and the trio went down to where he sat down and circled him. The other witnesses say he fell down after the shooting. This is consistent with a fatal shooting that led to almost instantaneous death. Another suggestion that was made was that since the deceased sustained wounds suggesting a single shot with an entry and exit point and two shots had been heard, then the other must have been a warning shot. The accused never said he fired a warning. Again it is unconceivable that he would have forgotten to mention such an important part of the events of that day. Section 4 2(1) of the Criminal Procedure and Evidence Act provides: “When any peace officer or private person authorized or required under this Act to arrest or assist in arresting any person who has committed or is on reasonable grounds suspected of having committed any of the offences mentioned in Part II of the first schedule, attempts to make the arrest and the person whose arrest is so attempted flees or resists arrest and cannot be apprehended and prevented from escaping, by other means than by the peace officer or private person killing the person so fleeing or resisting such killing shall be deemed justifiable homicide.” As indicated earlier Pw1, Matlotlo was the suspect in this case and not the deceased. He is not mentioned as such even by the accused himself. The accused himself says he did not know him. There was no question therefore of arresting the accused. I reject the story of the accused that the deceased was running away. But even if it is assumed in accused’s favour that he was in unlawful possession of stolen stock and was running away, killing a person is a measure of last resort when all other means have been exhausted. Other means, as accused had to admit, include chasing and subduing the accused. As demonstrated earlier he falsely claims that he did. He could have fired a warning shot which might stop a fugitive in his tracks. He did not. He fired at the deceased, well knowing according to his own version, that he was a bad- marksman. As was observed in MOLAPO v R 1990 – 94 LAC 140 at 145, a trained person, in that case a soldier, facing an assailant, I would substitute a figurative from arrest in this case, must give a warning that if he does not stop the would be fired at immediately. In any case the accused knowing himself to be a bad marksman, can hardly be heard to say that he was using the deceased for target practice. But in the final analysis I accept the Crown’s evidence that of the witnesses who testified in court that the deceased was not running away as against that of the accused that he was. I have already rejected the accused’s version that he was acting under command of his Senior Inspector Tsiane. It does not appear therefore that his undisputed killing of the deceased was justified. The question remains whether such killing was intentional. The accused says it was not. It was held, and the courts of this country have followed that case, in S v SIGWAHLA 1967 (4) SA.566 (A) per Holmes J. A. “1. The expression ‘intention to kill’, does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively forsaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis as distinct from dolus directus. 2. The fact that objectively the accused ought reasonably to have forseen such possibility is not sufficient. The distinction must be observed between what actual went on in the mind of the accused and what would have gone on in the mind of a bonus pater familias in the position of the accused. In other words, the distinction between subjective foresight and objective forseeability must not become blurred. The factum probanda is dolus and culpa. These two different concepts never homicide….. 3. Subjective forsight, like any other factual issue, may be proving by inference. To constitute proof beyond reasonable doubt the inference must be the only which can reasonably be drawn. It cannot be so drawn if there is a possibility that subjectively the accused did not forsee, even if he ought reasonably to have done so, and even if he probably did so.” In the present case the accused’s shot at the deceased with a rifle, which must have been a powerful, lethal weapon judging by the injuries it inflicted. In S v Du PREEZ 1972 (4) SA 584 (A) the accused who was an accomplished marksman aiming to miss shot two or three feet above the heads of approaching men “just to scare them off”. The last shot hit the deceased on the head and killed him. His actions were described as deplorable and his confidence as a marksman tragically misplaced. He had made a grievous error of judgment. In the circumstances of that case the then South African Appellate Division held that he was grossly negligent and convicted the accused of Culpable Homicide. In the present case the accused was not aiming to miss. He was not a marksman if he is to be believed. On his won version then he should not have resorted to shooting. For my part I don’t believe him. His superior including Inspector Tsiane could not have entrusted him with a rifle if they knew he was a bad marksman. The case of Du Preez is distinguishable. In this case the accused must have seen the possibility of death and by inference did indeed see such possibility. He is guilty of murder as charged. Reasons for Sentence 1. We have considered the factors advanced in extenuation and mitigation of sentence. 2. We find that extenuating circumstances exist. 3. We have taken into consideration that accused is a policeman of almost twenty years experience. That means when the offence was committed in 2000 he had almost ten years experience. He was still a serving officer until he was tried two days ago. I am amazed that the police could keep member of so serious an offence and still keep him in service. 4. The accused is said to be a family man who has dependents. As the saying goes he should have thought of that before he committed the offence. 5. Accused is a policeman who should protect and preserve life and lump and not destroy it. 6. The accused shot and killed the deceased in a senseless act. He did not resile and tell us exactly why he shot deceased. Inspector Tsiane himself said he found no reason why the accused shot the deceased. 7. In the circumstances we consider 15 years the appropriate sentence. My assessors agree. T. NOMNGCONGO JUDGE For Crown : Ms. Khoboko For Accused: Mr. Nteso 14