R v Mahase (CRI/T 43 of 94) [1995] LSCA 170 (1 November 1995)

CRI/T/43/94 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: L E K H E T HO M A H A SE V R EX J U D G M E NT Delivered by the Honourable Mr. Justice W . C . M. Maqutu on the 1st day of November, 1995. The accused is charged with murder: In that u p on or about the 28th of August, 1992 and at or near Ha-Leteketa in the district of M A F E T E N G, the said accused unlawfully and intentionally killed M O R A M A NG S H A MO MOLEFINYANE. Accused pleaded not guilty. At the outset, I m u st state that the medical evidence and the fact that deceased w as stabbed by the accused in the chest region is not disputed. It w as this w o u nd that injured the right ventricle of the heart of the deceased causing the bleeding that led to deceased's death. W i th the actus reus admitted, there are t wo questions that have to be answered namely whether accused had the requisite specific intention to kill or whether even if the accused did, the killing w as justifiable. T he C r o wn which bore the onus of proof, called four witnesses. P . W . I Trooper Tseloa is the policeman w ho collected the deceased's b o dy and gave the accused a charge of murder. He w as given the deceased's clothes and the accused's knife. U n d er cross examination P . W . I denied deceased's stick w as also given to him. T he next witness w as P . W .2 Pitso Ntjatje, w ho states they w e nt to M a k a m o h e l o 's place to drink Basotho beer. T h ey found accused already drinking. According to h im deceased around 8.30 p.m. stood up in order to go outside. On the way out he complained that deceased had tripped him. Accused asked for /..... forgiveness. After this, drinking continued. Deceased w e nt out again, on his w ay back deceased complained that accused had kicked h im on the knees. Accused asked for forgiveness. For no apparent reason, accused then insulted all the people in the r o om and said " N y oa m e ng ling"—translated, this m e a ns "your mothers' vaginas". This is one of the most offensive and abusive language that can be uttered in me Basotho language. Accused r e m o v ed his overcoat and closed the door after the deceased had gone out. P . W .2 and others had to struggle with accused in order to get out. P . W .2 says Nkalimeng P . W .3 told h im that deceased w as calling h im because that person had stabbed him. He took deceased into the house laid h im on the blanket with the help of others. N ot long thereafter deceased died. P . W .2 denied deceased did anything to accused, and also stated that deceased did not h a ve a stick. U n d er cross-examination he stated that deceased and accused w e re acquaintances. P . W .2 denied that there w as a ny dancing in the house. He denied deceased ever said aloud that accused w as after h im or that he poked accused with a stick. P . W .2 also said accused never said deceased had spilled his beer or w o r ds to that effect. P. W.2 further denied that accused threw his overcoat on the deceased and /...... stabbed deceased. P. W.2 was very confused about whether there was a light or not. Sometimes he said there was light and that it was put out by the accused. P. W.3 Nkalimeng says accused was the first to join the group that was drinking Basotho beer. Later deceased and P. W.2 came. While they were drinking, deceased said to the accused "Sir, why are you kicking me?" The witness was three paces from them. Makamohelo (the hostess) intervened and accused apologised. Deceased went out and on his return he heard accused complaining that deceased had kicked him. She did not see what had in fact happened. She says she only heard deceased say - "Why are you kicking me, what do you want from me?" Accused took off his coat and said: "Your mothers' vaginas, all of you." P. W.3 ran out of the house. There had been no dancing at all. She had not seen deceased spill accused's beer. At the time she ran away, the light was still on. W h i le P . W .3 w as outside the gate of Makamohelo's site deceased c a m e. P . W .3 advised h im to go h o me as he w as being attacked. Deceased said it w as no use that m an had finished him. Deceased asked P . W .3 to call P . W .2 for him. This she did, then w e nt to sleep. In cross-examination P . W .3 says at the time deceased complained of having been kicked, the second time, deceased w as sitting on the bench while accused w as sitting on an aloe stump. F r om the position they were sitting, accused could not have kicked deceased at that stage. P . W .3 says she does not k n ow what had happened before that. P . W .3 says there w as a plain radio in the house,not a cassette player. There had been no dancing. T he witness that followed w as P . W .4 Malipolelo Tlali. S he states that while they w e re drinking at Makamohelo's, deceased complained that accused had kicked him. S he did not see the kicking. M a k a m o h e lo reprimanded accused and he apologised. Drinking continued. Deceased went out and c a me back. After he had sat d o wn for s o me time, deceased complained that accused had kicked him. Deceased had been sitting for about 10 minutes w h en he said this. T he witness suggested she had no idea of time but her time estimates were correct. Accused reacted by insulting all people in the house by saying: "Your mothers' vaginas y ou are showing no respect for me all of you." Accused stood up and she ran away. The time could have been 7.45 p.m. There was no music in the house. Deceased's beer had never been spilled and replaced nor was such an offer made. Deceased was not carrying a stick. Deceased never threatened anybody with a stick. Under cross-examination, it emerged that deceased was her guest. She denied that she had told accused that accused belonged to the Batsoeneng clan to which the deceased belongs and that she revealed this fact when deceased had spilled accused's beer. She denied there was dancing. P. W.4 said deceased was sitting on an aloe stool and accused was sitting on the bench. The Crown closed its case. Accused gave evidence in his o wn defence. He admitted that he had been drinking at Makamohelo's where he was joined by deceased and P. W.2 Pitso Ntjatje. There was music and dancing. While there was dancing, deceased accidentally tripped against his leg, but accused him of having deliberately tripped him. W h en Makamohelo intervened, he apologised. Deceased had spilled his beer, but Malipolelo P. W.4 said he should not be too angry because deceased was her guest. P. W.4 said deceased belonged to the same Batsoeneng clan as accused, therefore Malipolelo P. W.4 would replace the beer. As promised, P. W.4 bought the accused beer. Deceased, who was dancing, came towards him again and accused warned him that he would spill his beer. Deceased replied that accused was after him. Deceased was carrying an olive stick. Deceased said he would hit accused with a stick while accused was sitting down. Accused said deceased could not do so. Deceased continued dancing. W h en deceased approached accused again, he poked accused with a slick. Accused quickly reacted by removing his overcoat and throwing it on he accused's face and stabbing him with a knife in the chest region. Accused says he did this because deceased's eyes exhibited aggression. W h en he looked up, he realised everyone had left the house, he was only left with P. W.2 Pitso. W h en accused got out of the house, Makamohelo (the hostess) told him to go home as he had been fighting. Accused went home. The following day, the Chief's messengers came for him. He handed over the knife he had used to the Chief on finding deceased was dead. Accused says he had no intention to kill deceased. Accused said he had taken 10 to 20 scales of beer before he came to Makamohelo's house. A scale is half a litre. Accused says he needs 30 scales in order to get drunk. He took five more scales at Makamohelo's. U n d er cross-examination accused said he did not k n ow deceased at all. As he w as drunk, he could not run away. Deceased w as also drunk. People w ho deny deceased had a stick do so because of the misfortune that has occurred. Accused says although the police asked him a few questions, he never told them the deceased had a stick or had attacked h im with a stick. It did not occur to h im to tell them because he w as not asked a specific question about the deceased's stick. He s aw the deceased's stick taken by the police along with deceased's body. Accused called Warrant Officer Khoele as his witness. Warrant Officer Khoele denied that they took deceased's b o dy along with a stick. W h en o ne assesses the evidence as a whole, it seems P . W .2 did not see a lot and his m e m o ry w as bad. He w as inclined at places to put the accused in the worst possible light. He does not r e m e m b er h ow the light w as put out or whether it w as put out at all. Yet he blames this on accused and contradicts himself badly. W h at is clear and which is corroborated by P . W .3 and P . W .4 is that accused suddenly b e c a me aggressive and used abusive language against all the occupants of the house. P . W .3 Nkalimeng w as the most cogent and impressive of all C r o wn witnesses. S he stated quite honestly that she does not k n ow w h en and h ow deceased had been kicked by accused. At the time deceased m a de this complaint, he w as already seated a w ay from the accused. P . W .4 corroborates P . W .3 and P . W .2 on h ow the fight started. P . W .4 w as not generally truthful but on h ow the fight started, she is corroborated by other witnesses and by circumstantial evidence. W h e t h er deceased spilled accused's beer and P . W .4 bought a replacement for it, is not of material importance in this case. Similarly, whether there w as dancing or not cannot affect the o u t c o me of this case in a significant w ay except on the question of credibility of C r o wn witnesses in a general w a y. Everything in such cases depends on the circumstances of each case. It is c o m m on cause that the initial cause of friction between accused and deceased is the fact that deceased tripped on the leg of accused. W h e t h er this w as deliberate or not w as not initially important. Deceased put his complaint in terms that implied that he regarded this as a deliberate kick. Accused denied this, but after s o me exchange of w o r ds it w as accepted by all that accused should apologise. This w as d o ne and deceased accepted the apology. N o ne of the C r o wn witnesses s aw the second tripping or kicking of deceased by the accused w h en deceased re-entered the house and sat d o wn after having g o ne out. According to C r o wn witnesses, deceased's reaction to this accusation w as to insult everybody in the house causing p a n d e m o n i um and the sudden exit of the people inside the house. N o ne of the witnesses s aw the fight as there w as a scramble to get out of the house. P . W .2 r e m e m b e rs that accused r e m o v ed his coat but even in this he is not clear. P. W.2 and P. W.3 got it from the deceased that accused had stabbed him. The accused's evidence, except for the fact that he says there was dancing, is in many ways consistent with that of the Crown witnesses as to the tripping that resulted in a misunderstanding. It is on h ow the fight began that his evidence is in direct conflict with that of Crown witnesses. According to accused, while deceased was dancing he came too near accused's feet that accused had to alert deceased to the possibility that deceased might again spill accused's beer. According to accused, deceased did not like this and he said accused was after him. Deceased threatened accused with the stick that deceased had in his possession. Deceased danced away and when he came near accused again as he was dancing, deceased poked accused with a stick. Accused reacted quickly, removed his overcoat and threw it over deceased's face and stabbed deceased with a knife in the chest region. W h en accused looked around, he found that he was only left in the house with P. W.2, everyone had left the room. I reject accused's story that deceased used a stick on him or that the deceased had a stick. I accept the evidence of Crown witnesses that accused suddenly insulted all occupants of the house causing them to fear for their safety with the result that they vacated the house as fast as their feet could carry them. The crisp question for determination is whether in the circumstances of the case accused had the mens rea that will justify a conviction of murder. There is the question of consumption of a substantial amount of Basotho beer and whether this in any w ay affected his capacity to form a specific intention to kill. T he C r o wn invited me to consider whether accused was so drunk that he could be regarded as temporarily insane through intoxication. I will not deal with it. It was adequately dealt with in Matsaba v. Rex C of A (CRI) N o. 5 of 1990 (unreported). In our law, although such a person was "by reason of intoxication insane" acquitted, he is then sent for an indefinite detention at His Majesty's pleasure like all insane people. In reality this is sometimes a calamity worse than being found criminally liable and being convicted and sentenced to a definite term of imprisonment. G. H. Gordon's Criminal Law, 2nd Edition, 12 - 01, dealing with the way intoxication is viewed in Scotland, states:- T he law regarding intoxication as a defence to a criminal charge is an unsatisfactory compromise among a number of attitudes and principles. On the one hand it is felt drinking should never be taken into account in ascribing responsibility for a crime, because it is a voluntary condition and is, moreover, a reprehensible one. As H u me says, 'one cannot well lay claim to favour, on ground of that which in itself shews a disregard for /..... order and decency'. On the one hand a m an w ho gets drunk and commits a crime sometimes arouses sympathy rather than indignation." P . W .3 says that the deceased w as the target of the accused's attack merely because he had complained of having been kicked. W h en accused initiated the attack on the deceased, he did it in such a w ay that even the other people felt unsafe. In rejecting the accused's story I sum fortified by the; fact that he himself admits his m i nd w as a bit befuddled by drink, consequently he cannot d e ny everything that the C r o wn witnesses said. This (as I have already s h o w n) is not a case in which The Criminal Liability of Intoxicated Persons Proclamation No.60 of 1 9 38 applies. In Germs of its Section 2(2)(b). it is only relevant w h e r e: "the person charged w as by reason of intoxication insane temporarily or otherwise at the time of such act or omission." Intoxication should never be taken out of the social context and the need for deterrence and to discourage antisocial behaviour that violates the rights of other people. F or this reason, I believe academics have interpreted the Appellate Division case of S v. Chretien 1981(1) SA 1 0 97 out of its factual context. T he Court w as not dealing with, /.. . "Someone w ho is dead drunk and is not conscious of what he is doing (who) is not liable because a muscular movement which is done in this condition is not a criminal act." T he rubric of the case docs not fully bring out the ratio decidendi of that case. T he Appellate Division had not accepted the accused w as dead drunk. Therefore the Appellate Division confirmed the conviction of culpable homicide in a case where an intoxicated driver drove into a crowd killing one person and injuring five others. T he decision of the D u r b an and Coastal Division w as therefore confirmed by the Appellate Division and is reported as R v. Chretien 1979(4) SA 871. In that case Friedman J said at page 8 78 A B: "There is a c o m m on misconception that the presence of alcohol in the sense that the accused person being in an alcoholic state, is generally and wrongly taken into account by the court as a mitigating factor. That is a belief that must be dispelled. In the present, case the fact that the accused had clearly imbibed far too m u ch alcohol was a factor we took into account in weighing whether or not the accused bad an intention to kill, and the fact that be was in an inebriated state was a factor that influenced us in concluding that the accused should be convicted not of murder but of a lesser crime of culpable homicide." Returning to the facts of this case, it seems to me the accused had taken too m u ch liquor. Basotho h o me b r ew beer differs in potency. Accused w as not as balanced as he should have been. Like all people w ho have taken too m u ch alcohol, he must have been inclined to take offence too easily and consequently got provoked by any exchange of words with the deceased that might have been legitimate. Whether accused had or had not tripped or kicked deceased, accused did not like the fact that deceased had said accused w as doing something wrong. Accused's temper flared and displayed aggression not only against deceased but against all the people in the house, w h om he insulted collectively. I do not have to be in the accused's mind to realise that at the root of his behaviour w as his inebriation. In R v. Bourke 1916 T PD 3 03 at page 3 05 Wessels J said: "It is a well known fact that there are various degrees of drunkenness. A m an m ay drink a small amount of liquor, the effect of which m ay be upon him to excite him and make him to act differently to the w ay he would act if he were absolutely sober." In this case, the accused had taken between fifteen and twenty live scales of beer. That is quite a lot, although accused says he could still take five m o re before he b e c a me drunk. In order to determine that the accused is guilty of murder I must be satisfied that he had the specific intention to kill. In Rex v Innes Grant 1949(1) SA 7 53 at page 7 65 Centivres JA said: "What authorities describe as voluntary drunkenness m ay be relied upon by an accused to show that in committing the act charged against him he did not have the specific intent, which is a necessary element in the crime charged against him." In S v. Sigwahla 1967(4) SA 566 at page 570 BE Holmes JA, dealing with the specific intention required for the Court to convict the accused of murder, said: /...... "The fact that the accused ought reasonably to have foreseen is not Subjective foresight like any other factual issue, m ay be sufficient proved by inference It cannot be so drawn if there is a reasonable possibility that the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did so." Since I have to judge everything concerning the accused's intention, focussing on the accused's particular mind not just that of a reasonable m a n, I cannot see h ow I can find it as a fact that the accused had the specific intention to kill deceased. At the very worst, I am obliged to give h im the benefit of doubt on this question of requisite mens rea to kill, that must be present in a case of murder. Accused is therefore guilty of culpable homicide, but not guilty of murder. Stand up accused. Y ou are found guilty of culpable homicide. W. C. M. M A Q U TU JUDGE