R v Mothebe (CRI/T 13 of 94) [1996] LSHC 112 (20 November 1996)

CRI/T/13/94 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX v M A O KE M A O KE T O KA M O T H E BE J U D G M E NT Delivered by the H o n. Mr Justice M L. L e h o h la on the 2 0 th d ay of N o v e m b e r, 1 9 96 Y ou h a ve p l e a d ed not guilty to the c h a r ge of m u r d er that w as preferred against the t wo of y o u. I h a ve listened to the e v i d e n ce w h i ch s o u g ht to s h ow w h at h a p p e n ed on the d ay of events n a m e ly 15th January, 1 9 92 at Ha C h a ka w h e re the d e c e a s ed sustained s o me h e ad injuries to w h i ch he s u c c u m b ed a d ay or t wo later. T he c r o wn h as led e v i d e n ce of t wo witnesses; the ladies that y ou s aw h e r e, a nd thereafter the e v i d e n ce of the D o c t or w as read into the m a c h i ne so w as that of P WI at the preparatory e x a m i n a t i on a nd of P W 8. T he oral e v i d e n ce that I h a ve h e a rd h as c o n v i n c ed me thoroughly that the d e c e a s ed w as the first attacker a nd he put y ou u n d er the necessity to d e f e nd yourselves. T he w ay I u n d e r s t o od it, the d e c e a s ed h ad a scuffle with a m an w ho w as a r m ed i.e. a c c u s ed 2. T he d e c e a s ed w as not a r m ed but he l u n g ed w i th a fist b l ow at a m an w ho w as a r m e d. E v en if the m an w ho w as a r m ed w as better e q u i p p ed for a fight than the d e c e a s ed w a s, the m an w ho w as a r m ed w as entitled to d e f e nd h i m s e lf against the d e c e a s e d 's b l ow or m o re plausibly the latter's w a n t on a nd u n l a w f ul attack. It w o u ld h a ve b e en i m p r u d e nt of a c c u s ed 2 to d i s a rm h i m s e lf in order to be on e q u al t e r ms with the d e c e a s ed w ho foolishly attacked in bare h a n ds a m an w ho w as a r m ed with a stick. H e re the scenario is that the d e c e a s ed h a v i ng delivered this fist b l ow in the region of a c c u s ed 2's face a c c u s ed 2 d u c k ed a nd as w o u ld be e x p e c t ed b e c a u se he w as a r m ed a n y w a y, he delivered a stick b l ow at the d e c e a s e d. T he stick b l ow l a n d ed on the h a nd of the d e c e a s e d. T he d e c e a s ed did not relent. He o n ce m o re attacked this m an w ho w as a r m ed w i th a stick. He attacked h im w i th b e ar h a n d s. He delivered a fist b l ow a nd in the p r o c e ss a c c u s ed 2 delivered a n o t h er b l ow w h i ch w as w a r d ed off by m e a ns of the d e c e a s e d 's s w e e p i ng a rm m o v e m e n t. In the p r o c e ss a c c u s ed 1 w ho w as not far a w ay o b s e r v ed a nd h e a rd - or rather - the witnesses h e a rd a nd no d o u bt a c c u s ed 1 o b s e r v ed w h en the c r o wd w ho h ad g a t h e r ed there s e e i ng that a c c u s ed 2 w as faring better t h an the d e c e a s ed w a n t ed to t a ke sides in f a v o ur of the d e c e a s e d. In the p r o c e ss a c c u s ed I w e nt for the d e f e n ce of his relative n a m e ly a c c u s ed 2. I a c c e pt the e v i d e n ce of P wl w ho indicated that a c c u s ed 1 delivered just o ne b l ow on the d e c e a s e d 's h e ad a nd felled h im to the g r o u n d. T h us it a p p e a rs o n ly o ne b l ow to the h e ad is responsible for the d e c e a s e d 's death. It w o u ld s e em the b l ow w as a s e v e re o n e. B ut e v en so it s e e ms to me to be u n w a r r a n t ed to require a c c u s ed I to h a ve a d m i n i s t e r ed that b l ow with w e l l - m e a s u r ed force to a v o id fatal c o n s e q u e n c e s. O ne h as to b e ar in m i nd that this o c c u r r ed in the heat of a fight affording no opportunity for a c h o i ce of m e a ns or fine m e a s u re of application of force. To require h im to do so w o u ld a m o u nt to indifference to the oft r e p e a t ed caution against a d o p t i ng an a rm chair attitude or a p p r o a ch in assessing a nd adjudicating on m a t t e rs of this nature. Suffice it to s ay that a c c u s ed 1 w as entitled to act in d e f e n ce of a relative w ho w as n ow b e i ng m o b b ed by a c r o wd w h i ch h ad started g r a b b i ng sticks f r om o n - l o o k e rs a nd m a k i ng utterances w h i ch m a de it plain that a c c u s ed 2 w as to be l y n c h ed b e c a u se he w as a stranger in that locality. I see no indication w h a t s o e v er of a ny of the a c c u s ed e x c e e d i ng the limits of self-defence. The scenario as painted shows that once the deceased w ho had invited what befell him fell to the ground, the accused desisted from further assaulting him. I do not think the accused need have done more to show that they were acting in self-defence. It should be borne in mind that the events outlined above took place at the chief's place, in front of the chief where an inquiry was being made as to the cause of an earlier fight in which one Julius feeling piqued that his ex-girl friend had transferred her favours to accused 2, picked a fight with accused 2. Needless to say that fight was brought to a stop before any harm could befall either of the combatants. I disagree with any suggestion advanced in cross- examination of P W1 and P W8 that they were dishonest. To me they appeared to be truthful witnesses w ho indeed sought to hide nothing either in favour or disfavour of the crown or the defence. What remained was that no prima facie case seemed to have been established at the close of the crown case. The move proposed by the defence counsel to put the accused to their defence by giving evidence when they bear no onus to prove their innocence was in my humble view deplorably ill-conceived. An attempt by the defence counsel was in my view pointless to seek to prove that P W2 in collaboration with both accused sought to concoct a false story that it was accused 2 w ho had effected the fatal injury to the deceased. This was the sort of cross- examination which apart from being purposeless would foreshadow a situation where the accused if called upon to testify would find themselves rebutting nothing of relevance to the case before Court. Worse still the entire exercise consistently with the tenor of the cross-examination would only help show the accused in bad light that they conspired to concoct a false story with whoever. Indeed while at first P W2 said the head blow was effected by accused 2 she later gave a plausible explanation when the Court brought to her attention that Pwl said the blow was effected by accused 1. P W 2 's plausible explanation accompanied by credible demonstration of her o wn role in trying to physically prevent the m ob from attacking accused 2 is that she had her back to the deceased when the latter was struck and seeing that accused 2 was near the deceased she presumed it was he who had struck the deceased whereas Pwl was facing all these combatants and thus P W2 conceded that Pwl's observation is more worthy of credit than her own. Even if P W2 insisted that it was accused 2 w ho had struck the fatal blow while P W1 said it was accused 1 w ho did so, in the light of the fact that there was no question of c o m m on purpose in this case, both accused would be entitled to an acquittal for it would be a perversion of Justice for the Court to say seeing that it is not clear w ho of the two accused is the culprit both should just as well be convicted. That in spite of this state of affairs it was sought to put the accused to their defence is beyond me. Moreso because the version of the crown was not inconsistent with the innocence of the accused or at worst the least irrational role to imagine they played in the face of first unprovoked and unlawful attack by the deceased and next the belligerent mobbing of accused 2 by the hostile crowd of young men w ho paid scant regard to the fact that matters were then in the hands of a chief and his elders in that village. In the c i r c u m s t a n c es t he C o u rt t o ok it u p on itself on the basis of e v i d e n ce outlined a b o ve to s a ve t he a c c u s ed the a g o ny of a protracted trial a nd finding t h em n ot guilty acquitted a nd d i s c h a r g ed t h em e v en t h o u gh their c o u n s el h ad failed to a p p ly for their d i s c h a r ge at the close of the c r o wn c a s e. As said the a c c u s ed a re f o u nd n ot guilty. J U D GE 20th N o v e m b e r , 1 9 96 F or C r o wn : M r. R a m a f o le F or Defence: M r. M a i e a ne