R v Makara (CRI/T 16 of 99) [2000] LSCA 80 (2 June 2000)

1 CRI/T/16/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs MATLOU MAKARA J U D G M E NT Delivered by the H o n. Mr Justice M L. Lehohla on the 2nd day of June, 2000 T he a c c u s ed stands c h a r g ed w i th the c r i me of m u r d e r, it b e i ng alleged that on or a b o ut 7th J a n u a r y, 1 9 96 a nd at or n e ar C om E x c h a n ge in the L e r i be District he d id u n l a w f u l ly a nd intentionally kill o ne Selala P u t s o a. T he a c c u s ed p l e a d ed n ot guilty to this c h a r g e. T he preparatory depositions of : P W1 L e f e e la A b i el P u t s oa a nd P W7 D / T r o o p er K h a r a fu w e re a d m i t t ed on behalf of the d e f e n ce a nd the C r o wn a c c e p t ed the a d m i t t ed depositions. Because the reasons why the post mortem report of Doctor Ali who examined the deceased did not accord with provisions of Section 227(1) of the Criminal Procedure and Evidence Act 7 of 1981 the Crown was put under the necessity to call P W8 Mr Lebeta the Senior Prosecutor who had led evidence at the Preparatory Examination of this case. It was thanks to P W8 that the Court learnt that actually the doctor who had performed the post mortem examination on the deceased was a foreigner and had long left Lesotho for good at the time the Preparatory Examination was held. The evidence of P W8 therefore gave a different complexion to the Magistrate's inadequate and blunt statement recorded at page 9 of the Preparatory Examination record that "the Senior Public Prosecutor informs court that the medical doctor who carried out the post mortem upon the deceased herein is not able to come to court". Emphasis supplied by me. I may just point out that among acceptable reasons set out in Section 227(1) the one indicated in italics above forms no part. The admitted evidence of P W1 is to the following effect: viz the deceased was his son. He gave the son's age as 19 years. P W1 received a report of his son's death and attended the post mortem examination conducted on the deceased on 26th January, 1 9 9 6. P W1 later buried the r e m a i ns of his son. T he admitted depositions of P W7 could be s u m m a r i s ed as follows : P W7 is a Detective trooper w ho at the time w as stationed at M a p u t s oe Police C h a r ge Office. W h i le on duty on 8th January, 1 9 96 he received a report f r om C o rn E x c h a n g e. He immediately set out for C om E x c h a n g e. He m et the a c c u s ed at the latter's h o m e. He asked h im for an explanation after introducing h i m s e lf to h i m, explaining the nature of his business there that d ay a nd giving h im the necessary w a r n i ng against self-incrimination. T he accused h a n d ed over to P W7 a "Lebetlela" stick w h i ch he explained he h ad u s ed in a fight with the deceased. P W7 took a w ay the stick w h i ch he h o p ed to later h a nd to the court b e l ow as an exhibit but unfortunately failed to find it f r om the place of custody in the Police store- r o om for exhibits. P W7 w as also h a n d ed a h o m e - m a de knife by the a c c u s ed w ho said it b e l o n g ed to the d e c e a s e d. T h is w as h a n d ed o v er in the court b e l ow a nd m a r k ed Exhibit " 1 ". P W 7 's further investigations of the case revealed that the d e c e a s ed h ad n ot u s ed this knife in his fight with the a c c u s e d. He accordingly arrested the a c c u s ed a nd g a ve h im a c h a r ge of m u r d er of the d e c e a s e d. P W5 K a p a re R a m a q e le g a ve s w o rn e v i d e n ce before this C o u r t. He said he stayed at " C . X" at M a f o t h o l e n g. He k n ew the d e c e a s ed as t h ey stayed in the s a me village. He said he k n ew the a c c u s ed in the s a me w a y. A s k ed to relate the events of 1 7 - 0 1 - 95 if he k n ew a nd c o u ld recall t h em he said that h e, the d e c e a s ed a nd P W6 Isaac Lieta w e re seated u n d er a tree s h a d e. T he tree b e l o n g ed to P W 4. T h is w as d u r i ng the day. W h i le thus seated with his c o m p a n i o ns m e n t i o n ed a b o ve P W5 s aw the a c c u s ed c o me a nd go past w h e re they w e r e. T he a c c u s ed c a me f r om the direction of his h o me leading to Moeketsi's shop. W h en the accused w as going past nearby the deceased asked 5 0c of h im and the accused's response w as in the nature of a question whether the deceased k n ew h im to be working. T he deceased responded by saying it w as not because the accused w as working that he w as asking 5 0c of him. All it w a s, he explained, w as just that he w as asking for it. T he accused then m a de for his place of e m p l o y m e nt at Mamoeletsi's place w h e re he w as a hired herdboy looking after stock. At the time the accused w as not carrying anything in his hands. T he trio stayed for a while there. B ut after s o me thirty minutes the accused e m e r g ed in c o m p a ny of three d o gs also carrying a stick while at the s a me time shouting that Selala the deceased should wait there. To all appearances as far as P W5 w as concerned the accused s e e m ed to be in a fighting m o o d. P W5 testified that the trio ran a w ay w h en they s aw the accused approach in the m a n n er just described. P W6 corroborated the aspect of the trio running a w a y; but he w as unable to say w hy they did so without i m m e n se probing. In fact getting anything from h im w as an uphill task. He didn't k n ow w h e re M u v a n go w h i ch he claimed he c a me from w a s. He thought it is in Lesotho though y ou have to go past Pretoria from M a s e ru to reach it. Further that the Republic of South Africa is in Lesotho. Indeed the Court recalls its o wn a g o ny it underwent in order to drag from h im if the pace kept by the accused w h en next he approached w as the s a me as the former a nd w h e t h er it wasn't in fact the carrying of the stick and the increase in the pace that caused t h em to run a w a y. His evidence is thus dismissed as of a dullard w ho didn't k n ow w h at his business w as in Court. It d a w n ed to this Court that this w as so during the first five sentences he uttered w h en asked to testify. T h o u gh to me he looked hardly 21 he insisted that he w as aged 8 2. A s k ed if he thought he is the s a me age or older than o ne of my assessors w ho is 80 he realised that he had exaggerated his a ge by an e n o r m o us margin albeit that he is illiterate. T he tenor of his evidence did not detract f r om such flights of fancy as pointed out above. T he disturbing feature w as the facility with w h i ch he churned it from his m o u t h. H o w e v er the clear testimony of P W5 i n a s m u ch as it has the ring of truth to it and supported as it is by logic and c o m m on sense s e e ms to be e n o u gh to be relied u p on as giving assistance to the Court in its endeavour to discover the truth in this matter. P W5 said the accused w ho appeared to be in a fighting m o od w as less than a 1 00 metres f r om the trio w h en he shouted. This coupled with other factors m e n t i o n ed a b o ve m a k es sense as to w hy the trio ran a w a y. P W5 said the deceased a nd P W6 ran t o w a r ds M o e k e t s i 's h o me while he himself ran in a different direction towards the c o m er of Stanley's yard. It is while in this position that he w as able to see his t wo c o m p a n i o ns as they ran a w a y. He couldn't at this stage see the accused b e c a u se he w as obstructed f r om v i ew by Stanley's h o u se a nd trees immediately a r o u nd it. H o w e v er the a c c u s ed w as still shouting for the deceased to c o me so that they could talk. P W5 s aw the deceased go d o wn through the gate; a nd as P W5 h ad c l i m b ed the rise f r om the c o m er he h ad turned the deceased a nd the accused fell within his v i e w. T h ey w e re standing a nd w e re not far apart, he said. In fact the distance separating the t wo w as given as o ne metre; while P W5 w ho w as observing all this w as 50 paces a w ay at the time. P W5 says the accused w as shouting a nd saying in a raised voice " do y ou k n ow me to be w o r k i n g ". Saying so the accused h ad raised his stick at the deceased. T h en P W5 said he s aw the deceased take from a r o u nd his waist s o m e t h i ng shiny. T h en the deceased turned and ran a w a y. T he accused g a ve chase. B ut w h en the deceased ran past Maletlala's hut he tripped a nd fell. T he accused w as chasing after h im still. He caught up with the deceased and fetched h im three blows with a stick. P W5 called for Moeketsi the o w n er of a nearby shop to c o me and help. W h en Moeketsi c a me out P W5 w ho w as just a small b oy in a state of fright ran a w a y. He learnt later that the deceased w as taken to hospital. He said the nearest he c a me to the scene w h en he m a de the observation of the blows he s aw being delivered w as about 20 paces. Told by Mr Mpaka for the defence that the accused's story is that the accused didn't respond w h en deceased asked 50c of h im first time ever P W5 w as a d a m a nt that the accused's response w as " Do y ou k n ow me to be working". P W5 denied that the accused proceeded without responding to w h e re he w as staying. P W5 denied that from w h e re the accused w as staying the latter w as going to the shop to b uy c h e w i ng g u m. T he story put w as that the stick the accused w as carrying w as Potlaki's a nd he w as returning it to its o w n e r. P W 5 's story regarding the presence of d o gs w h i ch the accused denies is worthy of credit in that he didn't tend to exaggerate the viciousness of the d o gs w h en asked by the court h ow big they were. A s k ed h ow big w as the biggest of the d o gs he demonstrated "2½ feet high". " W e re any of t h em vicious-looking or were they ordinary d o gs ? They w e re ordinary. But y ou told me y ou feared them hence y ou ran a w a y. W hy then if they w e re that ordinary ? T he w ay he w as walking a nd the fact that they s e e m ed to be heading for the person". T he evidence of P W5 is satisfactory in this regard because he h ad earlier indicated that the accused w as m a k i ng for the spot w h e re the trio w e re seated at a heightened pace. He also w as able to give a c o m m on sense therefore acceptable a n s w er to the question put to h im that "the accused couldn't h a ve been a c c o m p a n i ed by d o gs because he o w ns n o n e" by saying " T h o se d o gs w e re used to h im because they belonged w h e re he w as employed". It is true that the Preparatory Examination record d o es not reveal P W5 as having mentioned the question of d o gs a c c o m p a n y i ng the accused. B ut the probing by questions asked in this Court e v en though d o ne so m a ny years after the event evoke m e m o r i es w h i ch n o b o dy bothered to e v o ke in the Court below. T h us it is of importance that the Court at this stage observes closely the d e m e a n o ur of the witness while responding to questioning in order to guard against embellishing of the story that puts the adverse party falsely in d im or bad light. I am confident that such cannot be a valid criticism to level against P w5 w h o se evidence I accept as satisfactory. P W5 denied that it w as at this stage that the accused for the first time ever asked " H ey m an do y ou k n ow me to be working". P W5 says he didn't hear the deceased respond and say " H ey m an are y ou cheeky or resistant". Indeed from the pitch of voices and given the distance that P W5 w as f r om the t wo he w o u ld h a ve heard if the d e c e a s ed offered a ny s u ch provocative utterance to the accused. I reject it as a m a de up story to s e ek false justification for the assault m e t ed out at the deceased. L i k e w i se I reject the suggestion that the d e c e a s ed l o o k ed furious to the a c c u s ed b e c a u se the a c c u s ed h ad said " m o n n a" to h im yet the a c c u s ed being y o u n g er than the d e c e a s ed w as b e i ng disrespectful to say " m o n n a" m e a n i ng " m a n" to the d e c e a s ed b e c a u se if this w as uttered P W5 w o u ld h a ve heard it a nd he said he didn't hear the accused say " m o n n a" to the d e c e a s ed n or the other take objection to the supposed utterance. T he story continued to be put to P W5 that in the context of w h at a p p e a r ed to be the d e c e a s ed bent on giving the a c c u s ed his desserts, is to me farcical indeed. T he accused a r m ed with a stick, standing a m e t re a w ay f r om the d e c e a s e d, a nd in c o m p a ny of his d o gs the m e re sight of w h i ch h ad caused the trio to run a w ay in panic w a n ts the C o u rt to believe that the d e c e a s ed w as taxing h im w i th insubordination yet hardly a s e c o nd afterwards he turned tail a nd fled f r om the s u p p o s e d ly insubordinate that the d e c e a s ed d r ew s o me shiny object f r om his waist. B ut if this turns out to be accused!P W 5 's story is w o r t hy of credit also b e c a u se he didn't s e ek to conceal the fact the knife that w as h a n d ed in in the Subordinate C o u rt its role w as absolutely m i n i m a l. It appears to me that the deceased only d r ew it to b uy time within w h i ch to turn a nd run a w ay f r om the accused w ho s e e m ed bent on assaulting h im for asking for 5 0c of h im w h en the deceased k n ew he w as not w o r k i n g. P W5 denies that the deceased turned a nd faced the a c c u s ed a nd said to h im I c an kill y o u. A s k ed h ow he c an d e ny this yet he w as so far a w ay he said the voices - of the d uo w e re high-pitched; thus if such w o r ds w e re uttered he w o u ld h a ve indeed heard t h e m. I accept P W 5 's attitude a nd explanations without a ny reservation. T he accused's story is that he w as 18 years at the time of events in this case herding after stock at C o rn E x c h a n g e. He says he is illiterate. O ne d ay in 1 9 96 he left h o me for the village centre. W h en he returned f r om there he m et the trio m e n t i o n ed earlier. O ne of t h em Selala a s k ed for 5 0c f r om h i m. T he accused says he ignored h im a nd w e nt past without replying. T he d e c e a s ed said " h ey m an I am talking to y o u ". T he accused having reached h o me a nd spent about 45 m i n u t es r e m e m b e r ed that he w as still having Potlaki's stick w h i ch the o w n er had lent him. He there a nd then m a de for Potlaki's h o me without the stick for his idea is that he w as going to see if Potlaki is there and if he w as he w o u ld invite Potlaki to a c c o m p a ny h im to the h o me of the accused to fetch the stick with him. T he accused said he took a different route from the o ne w h i ch g o es past the trio. Failing Potlaki at the latter's h o me the accused returned to w h e re he stayed. On his w ay he m et the trio w h e re they had always been. T he deceased again asked for 50c from the accused. It is then that the accused said " H ey m an I don't h a ve m o n e y. Tarn not working:" T he deceased in reply said I shouldn't call h im " m a n ". T he deceased further said go a w ay with that little m o n ey of yours a nd e n d ed with uttering the abusive phrase "your mother's .... I see y ou think y ou are better". T he accused says he let h im be and parted with h im and w e nt h o me only to c o me b a ck 45 minutes later. This time carrying Potlaki's stick. Carrying it to its o w n e r. It is to be w o n d e r ed w hy this time he parted from his rule of leaving the stick and go and find out if Potlaki is there so that if he w as the t wo should go a nd fetch it from the accused's h o m e. C o u p l ed with the fact that n o ne of the things the deceased is said to h a ve said to p r o v o ke the accused it is not b e y o nd imagination of this C o u rt that because the accused h ad resented being asked for 5 0c by the deceased he felt this time that Potlaki's stick w o u ld c o me in handy. H e n ce his departure f r om the rule he h ad set for himself accompanied by an increase in his pace a nd a p a ck of d o gs this time. It w o u ld not be w r o n g, gathering from the evidence a nd facts of this case to conclude that the accused felt it w as about time he k n o c k ed the stuffing out of w h at he felt to be a d e m e a n i ng form of behaviour on the part of the deceased. T he accused's story is a long rambling tale devoid of substance. Indeed w h en confronted with the crucial question w hy it is that the b l o ws he said he effected on the deceased's hands w e re not recorded by the doctor w ho p e r f o r m ed the post- m o r t em the accused w as clearly in a cleft stick and d u m b - f o u n d e d. His reason for chasing after the deceased w ho w as running a w ay a nd therefore out of the fight even supposing he w as ever part of it holds no h o pe for a n y o ne seeking to rely on self-defence. No o ne can defend himself from another w ho is fleeing. T he heavy b l o ws w h i ch landed on the vital part of the b o dy with fatal consequences are not indicative of light use of force, or force that w as tempered by a fall on a r ms as well. H ad that b e en so then there wouldn't h a ve b e en a depression and crack on the deceased's skull. Instead the a r ms and h a n ds w h e re the b l o ws landed w o u ld have borne out that aspect of the matter. T he accused h o w e v er told the Court that he chased after the deceased with the "purpose of disarming h im in case he w o u ld turn at s o me later stage a nd stab h im with the knife. T he accused is in this connection deliberately oblivious of the fact that this interval w o u ld h a ve profitably b e en utilised by h im approaching higher authorities about the threat that a knife in the deceased's continued possession holds for him. T he post-mortem report states that the deceased's b o dy w as e x a m i n ed on 22nd January 1996. T he cause of death is said to be head injury. T he external appearances revealed laceration of the right eye b r o w; and laceration of the occipital region. T he skull is s h o wn as having had a depressed fracture. T he right temporal b o ne w as affected plus subdural h a e m a t o m a. G i v en that the laceration on the right eye-brow is a g o od distance a w ay from the depression on the occipital region w h i ch is at the back of the skull, the accused's story cannot be true that the head injuries w e re caused by only o ne b l ow w h i c h, while partly being borne by the a r ms and hands, landed s o m e w h e re on the head while the first o ne a i m ed too at the knife hand w as confined thereto. If only o ne b l ow m a n a g ed to hit the h e ad then it either landed on the right b r ow or at the back of the head. If it landed at the right b r ow w h at then caused the depression at the back of the h e a d? If it landed at the back of the head w h at caused the laceration on the right eye b r o w? T he simple explanation for the m o re than one injury on the h e ad is to be found in the evidence of P W5 w ho said he s aw the accused deliver three b l o ws on the deceased, and in part f r om Marorisang w ho on observing the savagery with w h i ch these injuries were effected on a helpless m an asked "are y ou killing h i m ?" the a n s w er to w h i ch by the accused w as a callous "tha1sts exactly w h at I am doing". Finally the unmistakable a n s w er is given by the accused in response to the G e n t l e m an Assessor on my left ( Mr Mohapeloa's) question. " W h at provoked y ou so m u ch and w h i ch y ou felt he deserved a depressed and cracked head from your b l ow ? I don't k n ow w h at it w a s ". O ne gathers f r om this curious a n s w er a lashing w i t h o ut restraint of b l o ws a i m ed at the d e c e a s ed delivered w i th blind rage a nd fury. I reject that there is a ny d e f e n ce of self-defence in this case therefore. T he position in l aw is that a m an c o m m i ts m u r d er or u n l a w f ul killing if for no r e a s on or for the slightest provocation he a i ms b l o ws at the vital parts of a n o t h e r, a nd w i th s a v a ge force wields a w e a p on to achieve this e nd or if in pursuit of self-defence he e x c e e ds that d e f e n ce by a large m a r g i n. Mr Mpaka raised important questions to c o n s i d er in the light of the fact that the stick w i e l d ed is not here a nd therefore the C o u rt c a n n ot rightly s ay force u s ed w as s a v a ge if in fact light force w as applied in using a h e a vy stick. W h i le I do appreciate the logic entailed in this s u b m i s s i on 1 c a n n ot ignore the fact that if little force w as u s ed then this d o es not relieve the a c c u s ed of the responsibility of directing it at the vital part of the b o d y. T he a c c u s ed is f o u nd guilty of m u r d er as c h a r g e d. My assessors agree. For C r o wn : Mr Kotele For Defence : Mr M p a ka J U D GE 2nd June, 2 0 00 E X T E N U A T I ON T he C o u rt heard during the extenuation p h a se of the trial that the a c c u s ed at the time of the c o m m i s s i on of the offence w as a g ed 18. It w as submitted that the a c c u s ed did not initiate the fight. I disagree with this submission. T he m e re fact that the d e c e a s ed a s k ed 5 0c of the a c c u s ed c a n n ot in my v i ew be t a n t a m o u nt to initiation of a fight I h a ve taken into a c c o u nt that the a c c u s ed h as no educational b a c k g r o u n d. T he fact of his y o u th in my v i ew e v en standing on its o wn w i t h o ut interaction with other factors submitted w o u ld tend to entitle the a c c u s ed to a finding that extenuating circumstances exist in his case. T he C o u rt so finds. W i th regard to Mitigation of sentence the C o u rt accepts that that the a c c u s ed h as no previous records of criminality. It is important that he be g i v en a s e c o nd c h a n c e. It m ay well be that if a proper sort of sentence is i m p o s ed it w o u ld h e lp fulfil a rehabilitative p u r p o se in the accused's life. T he C o u rt takes into a c c o u nt the period spent in detention before the trial c o m m e n c e d. He is accordingly sentenced to five (5) years' i m p r i s o n m e n t. My assessors agree. J U D GE 2nd June, 2 0 00 For C r o wn : Mr Kotele For Defence : Mr . M p a ka