R v Motemekoane (CRI/T 36 of 89) [1990] LSCA 36 (5 February 1990)

CRI/T/36/89 IN THE HIGH COURT OF LESOTHO In the matter between:- R EX and BOFIHLA MOTEMEKOANE J U D G M E NT Delivered by t he H o n o u r a b le M r. Justice J. L. Kheola on t he 5 th d ay of February, 1 9 90 The accused is charged with m u r d e r. It is alleged that upon or about t he 27th d ay of February, 1988, and at or near A i r p o rt Hotel in t he d i s t r i ct of M a s e ru t he accused unlawfully and intentionally killed Thamsanqa S i x i s he (hereinafter referred to as t he d e c e a s e d ). To this charge t he accused pleaded n ot g u i l t y. The d e f e n ce admitted t he depositions of t he following w i t n e s s e s: D r. M a c a r io Oliver ( P . W . 1 ), Tseliso M a h ao ( P . W . 4 ), Trooper M a h a se ( P . W . 5 ), Nthomeng Majara (P. W.6) a nd Thozamile Sixishe ( P . W . 7 ). /2 - 2- It is common cause that on the 27th February, 1988 the accused stabbed the deceased on the base of neck on the left side with a knife - Exhibit 1. The wound was 3 cm. long and 6 cm. deep. The jugular vessels were lacerated. Death was due to massive haemorrhage due to laceration of the jugular vessels. According to the accused the stabbing took place in the course of self-defence. It is common cause that on the day in question the deceased and one Phineas Molise (P. W.2) went to Airport Hotel to attend a musical performance that was supposed to be held there on that day. The accused and his companions went to Airport Hotel for the same purpose. When Phineas and the deceased arrived there they were told that the festival had been cancelled. Phineas testified that when they left Airport Hotel they took the road leading to the stadium. Somewhere along the road they found the accused. He was fighting with one boy from Hlotse who was apparently well known to the deceased. The accused had a brown okapi knife with stars on the sides of . its handle. The deceased intervened and tried to stop the fight-pleading with the accused not to do such a thing. The boy from Hlotse left immediately after the deceased had intervened. Phineas says that after the stopping of the fight, he and the deceased proceeded towards the stadium and that the accused and his companions followed them. However, under cross-examination Phineas says that the accused and his companions were ahead of them. /3 - 3- B e f o re they reached t he g a te of t he stadium t he accused told t he deceased that he had m a de himself a " s t a r r i n g" and he (accused) was in a fighting m o od b e c a u se t he d e c e a s ed had inter- vened in his ( a c c u s e d ' s) f i g ht with t he boy f r om H l o t s e. Realising that t he accused was a b o ut to f i g ht with t he d e c e a s e d, Phineas says that he suddenly s aw Samuel S e f e fo (P. W.3) in his van travelling along t he road leading directly t o w a r ds t he g a te of t he stadium from M t h e m b u ' s. He stopped t he van and asked Samuel to carry him and t he d e c e a s ed to t he bus s t op b e c a u se the accused wanted to f i g ht with t he d e c e a s e d. As he s p o ke to Samuel he was on t he d r i v e r 's s i de and was leaning a g a i n st t he van with his head in t he c a b i n. T he d e c e a s ed and t he accused t o g e t h er with t he o t h er boys w e re standing a b o ut e i g ht paces away behind him. A f t er t a l k i ng to Samuel he turned and saw accused c l a sp his k n i f e, put it into his pocket and leave t he p l a c e. A f t er t h at t he deceased c a me to him and held him with his hands as if he w as falling on him. He noticed t h at blood was spurting from t he d e c e a s e d 's left s h o u l d er like w a t er from a pipe t h at has b u r s t. The d e c e a s ed was carried to t he hospital w h e re he died on t he same d a y. This w i t n e ss says t h at he did not h e ar w h en t he deceased referred to t he accused and his c o m p a n i o ns as t he "Young of M a t l a m e' and t h at if he had uttered such w o r ds he would have heard him. Phineas d e n i es t h at E x h i b it 1 belonged to t he d e c e a s e d. He a l l e g es t h at he w as in t he h o u se of t he d e c e a s ed that m o r n i ng when /4 -4- the latter dressed and he s aw that he did not have any k n i fe in his p o c k e t s. He says t h at they m et the deceased and his c o m p a n i o ns at t he g a te of A i r p o rt Hotel and t h at they were following the accused and his c o m p a n i o ns but they had no intention of fighting with t he accused. He saw E x h i b it 1 very well at the t i me the accused was fighting with t he boy from H l o t s e. He saw t h at it w as an o k a pi k n i fe w i th t h r ee s t a r s. H o w e v er w h en Exhibit 1 was examined in Court it was found t h at it had seven stars - t h r ee big stars and f o ur small o n e s. P h i n e as admitted under c r o s s - e x a m i n a t i on t h at he did not see when accused stabbed the deceased and did not k n ow the cause of the f i g h t. He did not see t h at t h e re was a struggle between t he deceased and the accused before t he f o r m er was stabbed; but he says t h at if t h e re had been a s t r u g g le behind him he would have heard because t he accused and the deceased w e re not far from him. Samuel testified that when he c a me near the stadium he was stopped by P h i n e as who asked him to carry them to the bus stop because the accused wanted to fight with the d e c e a s e d. A c c o r d i ng to him P h i n e as was standing n e ar the van on the d r i v e r 's side but his head was not in t he c a b i n. There w e re a n u m b er of boys infront of his vehicle including the deceased and the a c c u s e d. He did not look at P h i n e as but looked at the b o ys infront of the vehicle about /5 - 5- whom P h i n e as w as talking . They w e re about twelve paces infront of his v e h i c l e. He s aw t h at the accused w as talking but he did not hear w h at he was s a y i n g. W h i le Phineas w as still talking to him t he deceased w as facing t o w a r ds t he v e h i c le and he (Samuel) saw when the accused took o ut a brown o k a pi k n i fe and stabbed t he deceased w i th it on the left s h o u l d er and a lot of blood came out immediately. The deceased spinned several times b e f o re he took off his c o at and put it on the wound in an attempt to stop the b l e e d i ng but in vain. Samuel says t h at he sat in the vehicle until t he deceased came to him and asked him to take him to the hospital because the bleeding was too m u c h. The deceased tried t h r ee times to get into the buck but failed and then lay down near the v e h i c l e. He was eventually carried into the vehicle but died on the way to the h o s p i t a l. Samuel told the C o u rt t h at the deceased was not doing a n y- thing and his hands w e re in t he pockets of his c o a t. When his a t t e n t i on was d r a wn to t he f a ct that at the preparatory e x a m i n a t i on he said he did not see w h e t h er the . h a n ds w e re in the pockets or just hanging on the s i d e s, he denied having said s o. But the preparatory e x a m i n a t i on proceedings show t h at he said so. -6- Again when his attention was drawn to the fact that at the preparatory examination he said he did not see the type of knife accused held, but that he noticed that it was a knife, he said he saw that it was an okapi knife. In his defence the accused repeated what he had said in his "confession" which was recorded by Miss Nthomeng Majara (P. W.6 - P. E.) which was admitted by the defence. The accused testified that on the afternoon of the day in question he went to Airport Hotel with one Keke 'Moletsane who is his friend. They met the deceased's group at the gate of Airport Motel and the deceased said to them: "The young of Matlama, there is no longer any mucial performance." They immediately decided to leave, they moved from the gate but the deceased and his companions followed them down the road leading to the stadium. When they were about fifty yards from the gate of the stadium he and Keke stopped and asked the deceased and his companions what they wanted from them. The deceased said they were fighting. He (deceased) and his group kept on advancing towards him. The deceased took out a knife from his pocket and they surrounded him and Keke. The deceased tried to stab him with that knife but missed him. The accused says that after the deceased had missed him he moved back but was stopped by the deceased's companions who had surrounded them. He then went to the deceased and held his righ: wrist in an attempt to wrest the knife from him. A struggle ensued. /7....... - 7- He f i n a l ly took t he k n i fe from t he deceased and stabbed him on t he left side of t he neck b e c a u se t he deceased w as still coming to him. He (accused) ran away with his friend immediately a f t er he had stabbed t he d e c e a s e d. He g a ve E x h i b it 1 to Keke and asked him to k e ep it; he d e n i es t h at he asked him to hide it. He w e nt to h is home and reported on t he same d ay t h at he had stabbed a person with a k n i f e. In t he " c o n f e s s i o n" he said he did n ot report b e c a u se he w as f r i g h t e n e d. He reported on t he f o l l o w i ng day w h en he w as told t h at p o l i ce w e re looking for h i m. M r. P h e k o, counsel f or t he d e f e n c e, pointed o ut a n u m b er of c o n t r a d i c t i o ns in t he e v i d e n ce of Phineas and Samuel S e f e f o, He also submitted t h at t he e v i d e n ce given by Samuel in this Court d i f f e rs in m a t e r i al respects from t he e v i d e n ce he g a ve at t he preparatory e x a m i n a t i o n. The C o u rt shall n ow c o n s i d er t he c o n t r a d i c t i o ns in t he evidence of t he two C r o wn w i t n e s s e s. It is P h i n e a s 's e v i d e n ce t h at when he w e nt to S a m u e l 's v e h i c le t he deceased was still s u r r o u n d ed by p e o p le and t he accused w as n e ar h i m, but Samuel d e n i es t h i s. In my view this is not a very m a t e r i al c o n t r a d i c t i o n, if it is a c o n t r a d i c t i on at a l l, b e c a u se during t he t i me t h at P h i n e as was m o v i ng from t he g r o up of b o ys t o w a r ds S a m u e l 's v a n, t he deceased m ay h a ve changed his p o s i t i o n. At the time Samuel saw him, the deceased was already on t he s i de of t he o t h er boys and they w e re behind h i m. Samuel c a n n ot k n ow w h e re t he d e c e a s ed and t he a c c u s ed w e re b e f o re he c a me to t he s c e n e. /8 -8- A n o t h er c o n t r a d i c t i on is t h at Phineas says t h at w h i le he w as t a l k i ng to Samuel his head was in the cabin and t h at t he d e c e a s ed and t he accused w e re behind h i m. T h is is t he reason why he did n ot s ee w h en t he accused stabbed t he d e c e a s e d. On the o t h er hand Samuel s a ys t h at t he boys w e re infront of his v e h i c l e; he was n ot even looking at Phineas as he s p o ke to h i m, but he was all t he t i me looking at the boys a b o ut w h om P h i n e as was t a l k i n g. B ut w h en he w as asked by t he C o u rt he said 'they w e re in t he road and on t he right s i d e. They w e re infront of m e '. T h is s t a t e m e nt seems to s u g g e st t h at t h e re w e re o t h er b o ys behind Phineas because if they w e re on t he right side they m u st have b e en b e h i nd h i m. Be that as it m ay Phineas w as p o s i t i ve t h at t he d e c e a s ed and accused w e re behind h i m. Samuel was also p o s i t i ve t h at t he accused and t he d e c e a s ed were infront of h i m. I tend to b e l i e ve Samuel w ho appeared to be m o re reliable t h an Phineas w ho w as involved in t he fight and f r a n t i c a l ly went to Samuel seeking h e l p. His o b s e r v a t i on m ay n ot h a ve been very a c c u r a t e. That his head was in t he cabin w h en he s p o ke to Samuel is m o st i m p r o b a b l e. T he head of a d r i v er of a van is usually so close to the w i n d ow that a p e r s on o u t s i de need not p ut his head through t he w i n d ow in o r d er to talk to him. It d o es n ot m a ke sense why P h i n e as had to do t h a t. Even if he wanted to w h i s p er to Samuel t h e re was no need to do t h a t. I b e l i e ve t he e v i d e n ce of Samuel on t h is p o i n t. In any c a se t he p o s i t i on of his head when he s p o ke to Samuel is a very m i n or p o i n t. W h at is i m p o r t a nt is w h e t h er t he /9 - - 9- accused and the deceased were infront of the vehicle or on the right side of it. I have already said that I believe the evidence of Samuel who is an independent witness who gave his evidence in a more straightforward manner than Phineas. I agree with Mr. Pheko that the evidence of Samuel Sefefo before this Court differs to some extent to the evidence he gave at the preparatory examination. He previously said he did not see the type of knife used by the accused in stabbing the deceased. He now says he saw that it was a brown okapi knife. He gave his evidence in the magistrate's court in December, 1988 and in this Court in October, 1989. He was describing the events which took place in February, 1988. In addition to the long interval between the dates on which he gave his evidence and the date of the events, there is a possibility that he saw Exhibit 1 at the magistrate's court. I did not have the impression that the witness was deliberately telling the Court a lie. It must be taken into consideration that he was giving evidence about the events which took place long before he appeared before the Courts. Another example where Samuel contradicted himself is that at the preparatory examination he said that when the deceased was stabbed his hands were in his pockets but he immediately qualified that statement by saying he is not sure whether his hands were in the pockets or just hanging on his sides. Before this Court he was positive that they were in the pockets of his ail - weather - cort. /10...... - 1 0- It is not clear why he is now sure and yet at a much earlier date which was closer to the date of the occurence of these events he was not sure. It was also suggested that Samuel says the fighting took place along the road from Mthembus and about thirty paces from the T-junction near the gate of the stadium. On the other hand Phineas says that the fight took place along the road running from Airport Hotel and on the side of the stadium to the airport. He says that it was before they came to the junction opposite the gate of the stadium. This statement is attributed to Phineas wrongly. He never said the fight took place before they came to the junction. What he said is that (and I quote his words from my notes): "We went down and before we reached the gate of the stadium accused said to deceased 'I think you have made yourself a starring (or a boss)' (A starring is a person who knows a lot). Accused and the boys were coming behind us. I tried to talk to the accused and said that they should stop fighting because accused was following the deceased." There is nothing in the above statement to indicate that the fight actually took place before the boys came to the junction. The impression one gets from the statement is that they were still moving. The next thing Phineas refers to is the arrival of Samuel's van but he does not specifically mention the exact spot where Samuel found them. / 1 1 . . . .. - 1 1- The version of the accused regarding the spot where the stabbing took place is that they were about fifty paces from the junction referred to above and they were at a junction of a gravel road which leads into the village. He alleges that Samuel could not have seen them from where he had stopped his vehicle. He claims that he was defending himself because the companions of the deceased surrounded him and the deceased and the latter advanced towards him. He lunged at him and tried to stab him with Exhibit 1 but missed him. In his so called confession the accused says that the deceased fell down when the missed him. There is no mention of this in his evidence before this Court. He (accused) went to the deceased and held his right wrist in order to wrest the knife from him. A struggle ensued till he managed to take the knife. He stabbed him on the left side of the neck and ran away with his friend Keke, because the other boys rushed at them. I find the story of the accused to be most improbable that the boys who were, according to him, on the side of the deceased and had completely surrounded him and the deceased, did not inter- vene when he overpowered him. He alleges that when the deceased advanced towards him he moved back and collided with the boys who were in the circle. It is unbelievable that after he had stabbed deceased they allowed him to escape without any resistence. The truth seems to be that the boys who were in the circle before Samuel arrived were on the side of the accused. I have - 1 2- already found that when Samuel arrived the deceased was no longer surrounded by any people; they were all behind him. If Exhibit 1 belonged to the deceased, why did the accused ask Keke to keep it? He says that he was not hiding it but merely asked Keke to keep it. He does not explain why the knife could not be safe in his custody. A reasonable man would have taken this knife to his parents and told them what had happened. Again the accused does not explain why he did not report to his parents that he had been involved in a fight with another boy and that he had stabbed him. After all he ran away immediately after he stabbed the deceased and did not know that his victim had died. What was he afraid of? He alleges that he was defending himself but was afraid to tell his parents he also decided that the knife which was not his property would not be safe in his custody. I have formed the opinion that the accused intended to hide Exhibit 1 when he gave it to Keke. He knew that he had done a wrong thing with it and wanted to distance himself from it. The other part of the story of the accused which is most improbable is the description of the manner in which he wrested the knife from the deceased. He alleges that the deceased was holding /13 - 1 3- the handle of the knife which is about five centimetres long. The hand of the deceased must have covered almost the whole of the handle with less that two centimetres sticking out on the thumb-side of his hand. It seems to me that it would be impossible for the accused to have a good grip of that small part of the handle and to pull the knife out of the hand of the deceased. Even if by magic he had succeeded in gripping that small part of the handle the blade would have cut deceased's palm. There was no such injury according to medical evidence. 1 have formed the opinion that the accused is not telling the truth that there was a struggle between himself and the deceased before he ellegedly restled the knife from him. Samuel saw that there was no such struggle before the stabbing of the deceased. According to the evidence of the Crown the accused already had that knife when he earlier fought with the boy from Hlotse. According to the Crown the cause of the fight between the accused and the deceased was the intervention of the deceased in the fight between the accused and the Hlotse boy. The accused was not very happy about that and accused him of making himself a "starring" (boss). On the other hand the accused says that the cause of the fight was that the deceased referred to them as the young of Matlama and followed them saying that he wanted to fight with them. He finally attacked the accused with a knife. It is hard to believe that the deceased could call ' the accused and Keke the young of Matlama and then decide to fight with them for /14 - 1 4- no apparent reason. On the other hand it is understandable why the accused could be angry with the deceased. The latter had intervened in a fight that was no concern of his and that way he had 'got too big for his boots' and had to be taught a lesson. Mr. Pheko referred to the recent case of S. v. jaffer, 1988 (2) S. A. 84 in which the criminal standard of proof was re-stated. At page 88 Tebbutt, J. stated the law in the following words; "It is, of course, always permissible to consider the probabilities of a case when deciding whether an accused's story may reasonably possibly be true (see S v Singh 1975 (1) SA 227 (N); S v Munyai 1986 (4) SA 712 (V) at 716B). The story may be so impro- bable that it cannot reasonably be true. It is not, however, the correct approach in a criminal case to weigh. up the State's version, particularly where it is given by a single witness, against the version of the accused and then to accept or reject one or the other on the probabilities. This approach was con- sidered by Van der Spuy AJ in S v Munyai (supra) where he said at 715G: "There is no room for balancing the two versions, i.e. the State's case against the accused's case and to act on prepon- derances." Dealing with Singh's case Van der Spuy AJ., with whom Klopper ACJ concurred, said that the, proper approach was for a court to apply its mind not only to the merits and demerits of the State and the defence witnesses, but also to the probabilities of the case. This was to ascertain if the accused's version was so improbable as not reasonably to be true- This, however, did not mean a departure from the test as laid down in R v Difford 1937 AD 370 at 373 that, even if an accused's explanation to imprbbable, the court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled his acquittal." - 1 5- I have considered the merits and the demerits of both the Crown and the defence witnesses and have come to the con- clusion that the story of the defence is not only improbable but beyond any reasonable doubt it is false. For the reasons stated above I find the accoused guilty of murder. My assessors agree. J. L. KHEOLA JUDGE 5th February, 1990. - 1 7- EXTENUATING CIRCUMSTANCES At the time of the commission of the offence the accused was a youth of eighteen (18) of age. It seems that our Courts might hold youthfulness to be an extenuating circumstance (See R v Jantjes, 1908 E. D. C. 382, R v Ndhlovu, 1954 (1) S. A. 455. (A. D.) at p.459) but the general rule is normally to require some factor in addition to youthfulness. In the present case the additional factor is the absence of premeditation. The defence counsel pointed out that in convicting the accused the Court did not indicate whether or not there was premeditation. I agree with the criticism. If I may be allowed to correct the omission, this was a case of dolus eventualis and not of dolus directus. The fact that this is a case of dolus eventualis is an extenuating circumstance (See S v Siqwahla, 1967 (4) S. A. 566 (A. D.) at p. 569; S v Arnold, 1965 (2) SA 215 (C) at pp 219 et seq.). I find that there were extenuating circumstances and the accused is found guilty of murder with extenuating circumstances., SENTENCE: Although it is not a good idea to sentence a youth, who is a first offender, to imprisonment without the option of a fine, the Courts are sometimes under an obligation to do so because of the /18 - 1 8- seriousness of the offence and in order to pass a sentence that will be deterrent to others. The cases of murder where a knife has been used are prevalent throughout the country and it is the duty of our courts to pass sentences that will have a deterrent effect. The accused is sentenced to five (5) years' imprisonment. J. L. KHEOLA JUDGE 5th February, 1990. For Crown For Defence : Miss Moruthoane : Mr. Pheko