R v Maholisa (CRI/T 3 of 99) [2000] LSCA 70 (23 June 2000)

IN T HE H I GH C O U RT OF L E S O T HO CRI/T/3/99 In the matter between:- R EX vs T O NA M O H O L I SA J U D G M E NT D e l i v e r ed by the H o n o u r a b le Mr Justice S . N. P e e te on the 23rd J u ne 2 0 00 T he a c c u s ed a m o s o t ho adult a p p e a r ed before this court on a c h a r ge of m u r d er it b e i ng alleged that on the 29th M a r ch 1 9 98 a nd at or n e ar M a p u t s oe in the district of Leribe, he did u n l a w f u l ly a nd intentionally kill D a v id P h e e l lo M a s e e l a. To this c h a r ge the a c c u s ed p l e a d ed n ot guilty. In support of the c h a r g e, the c r o wn called P . W .1 T s ae M o h o l i s a, the elder brother of a c c u s ed w ho told the court that on the 28th M a r ch 1 9 98 he h ad b e en drinking b e er at the party a nd that he a s k ed the d e c e a s ed to lend h im a m u s i c al cassette so as to d u b. On the following d ay he w e nt tot he h o me of the d e c e a s ed w h e re he f o u nd M a n g o e t si M a l a k o a ne w ho w as e m p l o y ed as a m a id by the d e c e a s e d. He s a ys he a s k ed M a n g o e t si to b o r r ow h im the cassette so that he c o u ld d ub its m u s i c. M a n g o e t si obliged a nd g a ve h im the cassette; he t h en left. It appears the deceased b e c a me annoyed w h en he got to k n ow that P. W.1 h ad taken the said cassette; the deceased then looked for P . W. 1 until he found h im at a shebeen. A quarrel ensued and P. W.1 tells the court that the deceased, w ho w as then in a angry m o od hit h im with a fist in the face and took a w ay his cassette. It also appears that P. W.3 M o k o a t le M a h a se w as also fisted by the deceased w h en he tried to intervene. P. W.3 w h en giving evidence told the court that on that d ay the deceased had entered the shebeen and had angrily d e m a n d ed his cassette f r om P. W.1 and h ad hit the latter and that w h en he tried to intervene, the deceased h ad also hit h im in the face and h ad chased him. P. W.2 Mangoetsi Malakane's evidence s h o ws that P. W.1 took the cassette in the -absence of the deceased; This a n n o y ed the deceased. P . W .2 then told the court that after the deceased had retrieved his cassette f r om P . W . 1, he w e nt b a ck into the sitting r o om w h e re his t wo visitors from M a s e ru w e re seated. S he says that soon thereafter she s aw three m en approaching the yard and o ne of them, being the accused inquired w h e re the deceased w a s. S he says the t wo m en a c c o m p a n y i ng the accused carried sticks. S he says that the deceased then appeared on the d o o r w ay and greeted t h em saying "Brothers c o me inside". T he accused then said " B X, I don't like w h at y ou have d o ne to my brother" and deceased said " C o me in, I am not fighting, though y ou look fighting." S he says she then s aw the deceased turning b a ck into the h o u se but w as then bleeding profusely; he held on to a stove a nd then fell d o w n. S c r e a m i n g, s he rushed to call the t wo visitors w ho rushed into the kitchen to find the d e c e a s ed bleeding profusely a nd lying on the kitchen floor. S he says she w e nt to report the matter to the wife of the deceased w ho w as at w o rk in o ne of the M a p u t s oe factories. U n d er cross e x a m i n a t i on by Mr T e e le for the accused, she explained that w h en the three m en arrived, she w as standing b e h i nd the d e c e a s ed on the kitchen d o o r w ay as she h ad just t h r o wn s o me dirty dish water a w ay a nd w as also in the w ay to the toilet. T he arrival of the three m en stopped her in her tracks b e c a u se she observed that they w e re in a fighting m o od a nd the t wo w e re carrying sticks. S he a g r e ed that the a c c u s ed carried no stick at that time. S he w as also taken to task by Mr T e e le a b o ut the version at the preparatory e x a m i n a t i on w h e re she is recorded as h a v i ng said that the d e c e a s ed told her that he h ad assaulted P . W . I with fists o v er the cassette. T h o u gh she stood i m m e d i a t e ly b e h i nd the d e c e a s ed P . W .2 s e e ms not to h a ve s e en the accused actually stabbing the deceased. "Question: Y ou did not see the deceased being injured? A n s w e r: I only s aw w h en he turned a nd w as bleeding. Question: At the P. E. y ou said "accused then stabbed the d e c e a s ed with the knife? A n s w e r: I did not see the stabbing - at the P. E. I m i g ht h a ve said I s aw h im b e i ng stabbed." S he denied categorically that the deceased ever attacked the accused with fists but insisted that the deceased w as all the time inviting the accused and his c o m p a n i o ns to c o me inside. S he says the accused w o u ld be lying if he says he w as attacked with fists by the deceased on that day. P. W.3 M o k o a t le M a h a se w as a witness w ho w as called last by the C r o wn Counsel Ms M a q u tu and his evidence changed the w h o le c o m p l e x i on of the c r o wn case and in brief his testimony w e nt on like this: After he h ad been assaulted by the deceased, he ran a w ay to his wife's h o me w h e re he w as staying. He found the accused and told h im that the deceased h ad assaulted P. W. I his elder brother over s o me cassette. He says the accused, and his father- in- l aw then w e nt to the h o me of the deceased, and he also accompanied t h e m; he w as also carrying a stick. He says they found the deceased already at his h o m e. He says the deceased appeared on the d o o r w ay and talked to the accused. He says he then s aw the deceased suddenly attacking the accused with fists and that he s aw w h en the accused took out a knife and stab the deceased in the chest area. T h ey then left the yard after the deceased had retreated b a ck into his house bleeding. Mr Teele, in all fairness, did not even cross e x a m i ne P. W.3 because P. W.3 w as indeed totally favourable to the defence a nd Ms M a q u tu should h a ve prudently m a de h im available to the defence; his evidence rendered no credit to but tarnished the c r o wn case. T he c r o wn having closed its case Mr Teele also elected to rest his case without calling the accused. In this case the c r o wn h ad the duty a nd o n us to p r o ve the c h a r ge of m u r d er b e y o nd all reasonable d o u bt a nd u p on the evidence a d d u c ed Ms M a q u tu candidly c o n c e d ed that the c r o wn h ad failed in this regard. T he stabbing of the d e c e a s ed w as h o w e v er unlawful a nd unjustified. T he evidence of P . W .3 e v en if believed s h o ws that the stabbing w as an excessive reaction on the part of the a c c u s e d; his life w as not in d a n g er a nd he u s ed a lethal w e a p on inflicting a mortal w o u nd on the deceased. T h o u gh p r o v o k ed by the incidents that h ad occurred that m o r n i ng he o u g ht to h a ve foreseen that death w o u ld result w h en he stabbed the d e c e a s ed w i th the okapi knife. Mr T e e le also candidly c o n c e d ed that the a c c u s ed e x c e e d ed the reasonable b o u n ds of self-defence. In the circumstances of this sad a nd tragic case, I find the a c c u s ed guilty of the c r i me of culpable h o m i c i d e , a nd my assessors agree. Ms M a q u tu informs the court that she h as no record of the accused's previous convictions. Sentence: T he court finds that the stabbing of the d e c e a s ed w as unlawful a nd unjustified. H a v i ng considered the mitigating factors raised by Mr Teele, the court finds that the unlawful act of the a c c u s ed h as c a u s ed the wife of the deceased to b e c o me a w i d ow a nd her children o r p h a n s. F or this the wife of the deceased h as all rights to claim substantial c o m p e n s a t i on in a civil court T he sentence of the court is the following: Five years imprisonment or M 2 , 0 00 half of w h i ch is suspended for three years on conditions that the accused is not convicted of an offence involving violence to person for w h i ch he is sentenced to a term of imprisonment of six m o n t hs without an option of a fine. S . N . P E E TE J U D GE For Grown: Ms Maqutu For Defence: Mr Teele