R v Motsoeli & Others (CRI/T 45 of 97) [2002] LSCA 144 (18 September 2002)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CRI/T/45/97 In the matter between: REX v KHANTSI MOTSOELI LIPHOKO MOTSOELI First Accused (Al) Second Accused (A2) For the Crown: Miss Mokitimi For Defence: Mr Fosa Judgment Delivered by the Honourable Mr. Justice T. Monapathi on the 18th day of September 2002 Deceased Thabiso Kalake died on the 13th September 1994 at or near Lekokoaneng, in the Berea district. There was no dispute that the Deceased died as a result of a stab wound on the shoulder inflicted with a knife. Deceased had had other injuries on the head. What remained was whether the people charged with the murder killed the Deceased with the requisite intention to kill. -2- The two Accused were charged with the murder of the deceased. They pleaded not guilty to the charge. The Accused in 1997 were said to be both of the age of twenty two (22) years. They cannot both be of the same age since they are brothers. It looked like there were two fights between the two Accused and Deceased the latter who was joined by PW 4 on the last and fatal fight which followed events of the previous day or alleged unsavoury conduct by Deceased towards A2's sister. A Preparatory Examination (PE) had been held after whose completion the Accused were indicted. Of the seven depositions of the witnesses who appeared before the PE those of Mamotlatsi Nte (PW 2) and Tona Kalake (PW 1) were admitted and read into the recording machine and were declared to be part of the proceedings. The events of the first fight were between Al and A2 the aggressors on the one side and Deceased on the other side will be largely common cause. It is the events or sequence of the events of the last fight which are contested on a really narrow plane if not on an even restricted legal issue as to whether A2 had intention to kill when he stabbed. -3- PW 2 testified at the PE that she had seen people going towards a certain place in the village. She followed those people. There she found the Deceased with one Itumeleng Kalane (PW 1 at PE) who later testified as PW 4 in this Court. Deceased had sustained injuries on the head and a stab wound on the left shoulder. The witness did not ask the Deceased about how he sustained the injuries. PW 4 gave an explanation. The witness walked the Deceased who they supported for distance but he got tired. The witness then raised an alarm after she had left the Deceased with PW 4. The witness set about finding a vehicle to carry the Deceased to hospital. She had also intended to report the matter to the chief. When the witness returned she found that the Deceased had been moved to Deceased's home. A vehicle had been obtained. And the witness and the Deceased travelled to the hospital and Charge Office. The Deceased was in the presence of the witness, conveyed to hospital. On their journey from home the Deceased sustained no further injuries. -4- On the following day Deceased was reported to have died. The witness was also asked by police to hand over the Deceased's stick and she complied. PW 4 at the PE Tona Kalake deposed that Deceased was his younger brother's son and had otherwise been in good health when he got a report about his death. The witness later identified Deceased's body before the doctor who performed a post-mortem examination. The body of Deceased was later released to the witness for burial. PW 1 at the trial was Sam Khelemethe. He testified that there had been a drinking session at the kraal on this day of the fight. It was after a wood gathering "letsema" Deceased was present at the gathering. What became unusual was that A2, while at the same time delivering a blow with a stick on Deceased, remonstrated with him "to do that what you did or attempted to do yesterday." A2 would say that the Deceased, who was being urged by PW 4 through provocative dance and statements, was the original aggressor. He would say that as a result his helmet even got broken by Deceased's blow with a stick. -5- The witness stated that A2 delivered another blow. The third blow was warded off by the Deceased with his own stick. It was at that time when Al came from behind the Deceased and struck the latter with a stick after which the Deceased ran away. PW1 said he followed the Deceased and the two Accused who however overpowered him. Further on the witness noticed that PW 4 had joined as a result the witness was able to intervene. After PW 4 joined Deceased had then refused to go home said he wanted to go back "where people were". This suggested that he wanted to continue with the fight. Deceased and PW 4 had then gone back to where the Accused were. They met Accused along the way. The witness had then decided to go home and not get involved any further. As the witness passed next to where the Deceased was with the Accused he noticed the Deceased fall against the fence and as soon as he did that A2 stabbed the Deceased with a knife on the chest. In my view it will be significant as to why A2 was seen stabbing the Deceased with a knife when the accepted story will be that at that stage Al was -6- the one who was pitted against the Deceased while A2 was on PW 4 in a stick fight. The Court will deal with this later on. The witness continued to say that he saw the Deceased hit anyone and he never saw A2's helmet being broken. He also said he did not see any stones being thrown towards the Accused by Deceased and PW 4. He did not see Deceased assault anyone. This witness' evidence was largely unchallenged about the general flow of events. He said it was the Deceased who first arrived at the kraal. Later arrived Accused who then charged the Deceased as said before. This witness confirmed therefore that there were two stages in the fight between the Accused and Deceased who was joined by PW 4. In addition that at the kraal it was A2 who arrived finding Deceased already present. PW 2 Manthofeela Habasisa testified that the gathering at the cattle kraal was a result of a wood gathering "letsema" after which the participants were being given food and beer. She had but gone into the house after attending to those gathered outside -7- that she heard sounds of sticks at the kraal. As she looked outside she saw Deceased covered with blood on the face. He was running away and the two Accused were chasing after him presumably towards the fence of one Mapuleng. The witness said she noticed that PW 2 was armed with a knife. She. decided to run behind the group. At the same time she was shouting "Beware of the knife". At some point Al threatened her with a stick as she was asking what the problem was. It was then that she heard Deceased say to PW 4 that they should "go back to the people." This suggested that they should re-engage the Accused in a fight. The witness went back to her home. This witness' evidence was that when she arrived at the yard of 'Mapuleng Deceased already had wounds. She had not seen anyone assault the Deceased. PW 3 was No. 38734 Police Woman Ntsitsi. Her evidence was to the effect that around September 1994, while on duty there arrived the two Accused who gave her a report. They handed to her two sticks together with an Okapi knife. The items would be handed in as exhibits in Court. Having given her an explanation she cautioned them and gave them a charge of Assault with Intent to Cause Grievous Bodily Harm. The witness later handed over the three items to policeman Khobatha. She contended however that she could positively identify them since they were handed to her. She further contended that although she could not recall which stick belonged to which Accused those -8- sticks handed to her were not broken. PW 4 was Itumeleng Khalane. He testified to say that on the day in question the two Accused joined others at the home PW 2 after other men had arrived from wood gathering in the forest. He had been with Deceased who went to kraal his cattle. They later rejoined and went together to PW 2's place. It was where they found the two Accused and other people. As soon as they had arrived the witness went on to testify at PW2's place (apparently it was near a kraal) he saw the two Accused belabouring the Deceased with sticks. Deceased eventually managed to run away. The two Accused chased after the Deceased but they were prevented from going farther in the chase by the witness and PW 1. The witness said that the two Accused ended up getting to the Accused on the fence of 'Mapuleng where on arrival the Deceased fell down. As soon as he fell on the fence the Accused continued to strike him with sticks. That the Deceased had been unarmed. The witness continued to say as soon as after the Deceased had fallen on the fence he saw A2 stab the Deceased along the shoulder area. The Deceased -9- then fell down. The witness then said he supported the Deceased to walk to one Mamotlatsi's place. That is where he left the Deceased who was still alive at that time. He later learned about the Deceased's death the following day. Under cross examination the witness said he did not hear the words of challenge from A2 to the Deceased. He says he could have heard those words if uttered because he was close enough. Furthermore the witness did not see Deceased holding a stick. This was much against the evidence of PW1 and the general evidence that the Deceased had travelled back from where he was and came back to the Accused to engage in a fight with sticks. This is much probable when considered with the fact that the Deceased had said he wants to come "back to the people". That expression suggested that he was itching for a fight and actually came back to engage the Accused together with the witness. The witness denied that such statement was uttered. The witness denied that the Deceased could ever have delivered a blow in that he did not fight nor was he armed with a stick. -10- The witness denied furthermore having seen PW 1 who said he was present and did even intervene. He denied even seeing the Deceased's stick fall inasmuch as Deceased did not have a stick at all. This was much against the evidence of PW 1. This witness who appeared to have been all along in company of the Deceased soon after Deceased re-joined him after kraaling his cattle was a very evasive and untruthful witness. He attempted to avoid obvious things such as that he and Deceased came back to re-engage the Accused although the Accused gave a different reason for having followed up the Deceased and the witness. The witness however has to be believed that ultimately the two Accused on the one side the Deceased got into the fatal fight. Nevertheless he denies his own involvement. I would believe that this witness was also involved in the fight with A2 at one stage. It is one of the things that he hesitated on or was reticent about that made him unreliable in some respects. Apparently it was to down play his role in the whole affair. It is however undeniable that he was in company of the Deceased on the second occasion which is the crucial one i.e. after the Deceased was chased away from the place of PW 2. -11- The Crown closed its case after the evidence of PW 4. The two Accused each gave evidence in their own defence starting with Al. Al testified that A2 found him with PW 4 at the kraal of PW 2. PW 4 had told the witness that he was going to sleep and had apparently left. Al was surprised to see PW 4 coming back in the company of the Deceased. The two were waving their sticks in a war-like dance and song. Al testified further to say that when the Deceased was near him he had been complaining that there was no "manly" songs (mokorotlo) being sung at the kraal where men had assembled as aforesaid. At the same time Deceased belittled and abused calling him a woman and an uncircumcised "boy". As the evidence went Deceased first hit A2 with a stick and the blow landed on A2's plastic helmet. He tried to intervene in response to which PW 4 said "two, two!" This was to suggest that one was to pick his adversary in combat. A2 had then produced a knife. That is when Deceased ran away. The witness says he chased after PW 4 at this time but ended up not reaching the place where the Deceased and A2 were fighting. After some time Deceased and PW 4 approached the two Accused person throwing stones at -12- them. The former seemed to be in a fighting mood. As they arrived at the place where the witness was the Deceased came and fought the witness while PW 4 fought A2. I noted, and this was significant, that it came from the mouth of Al that he hit the Deceased with a stick after which A2 came and stabbed the Deceased. And furthermore that at the time when A2 stabbed the Deceased the latter was leaning against the fence. After that both Accused left the scene. The witness then claimed that he had not seen the exact place where Deceased was stabbed. What was even more important to note was that at the last scene this Accused had been fighting with the Deceased on whom A2 suddenly came to deliver a blow with a knife. Incidentally the First Accused was candid enough to admit having assaulted the Deceased with a stick until the moment when Deceased had fallen and then A2 took over with fatal consequences. DW 2 who was A2 claims in his evidence that Deceased had been troubling his sister and the Deceased was reprimanded by the witness. Apparently this complaint against the Deceased must have been reported to the witness later. The witness then said later he went to the place where wood was being cut -13- and there found Al to whom he made a report about what was reported to him about the Deceased's previous conduct. After some time, the Deceased arrived. Deceased then passed a remark to the effect that the witness and others around at the gathering were women the witness being the worst of them. It was at about that time as the witness stated that the Deceased hit him with a stick which broke his helmet. The witness then said he levelled a blow with a stick and managed to hit him on the head. The Deceased then delivered another blow which the witness managed to parry with his stick which got broken in the process. A2 said he then took out a knife and the Deceased ran away. People intervened. A2 said he and Al then left after they were separated from the Deceased and PW 4. The two Accused then left the scene. After some time they were approached by the Deceased and PW 4 who were throwing stones at them. The witness said they approached the Deceased and his partner because they feared that if the others went unchallenged they would break windows at Al's home. The two pairs approached each other and a fight ensued. Al faced the Deceased while the witness fought PW 4. Al then hit the Deceased who fell on the ground but supported himself on a fence. The witness then left PW 4 with whom he was fighting and went and stabbed the Deceased with a knife on the shoulder. After that the fight stopped. -14- As I have said in the beginning of the judgment it was largely agreed that there were two incidents or fights involving the two sides of the Accused and the Deceased with PW 4 on the other hand. The two groups seemed to have followed closely on each other. To the extent as I found when PW 4 and Deceased turned back and returned the other pair seemed to have been following but not sufficiently closely. Admittedly both were keen to be involved in a fight. It was however not as if the Accused would not have avoided the Deceased and his partner if they wanted to inasmuch as other people successfully intervened and separated the two groups. Even if one would read into the events up to this stage that the two Accused could have acted in self-defence or through provocation I would find it difficult to accept that this extended up to the second stage of the events that is the second encounter. The two events seemed to be separable. The reason why the Accused pursued the other group was primarily that they thought the other group would break windows by stone throwing. I agreed with Crown submission where was simply put to say that the evidence put in Court can be said to be that both the prosecution and the defence -15- had two different stories. And that however one thing which was common was that both Accused persons managed to assault the Deceased with sticks and A2 was the only person who stabbed the Deceased. Though not explicitly said by the defence it could be read from the evidence however and Counsel vacillated between the defence of either provocation or self defence. If it was assumed that defence of A2 was provocation the Crown as submitted, would concede that as to the first stage of the fight there could have validly existed such provocation. But A2 had not responded immediately and this was his undoing. Enough time had elapsed between the provocation and the fighting as both Accused admitted. They said they had been made to stop pursuing the other side and they only reacted later because stones were being thrown. The Deceased and PW 4 had been effectively ignored except for their stone throwing. In the light of the fact that enough time elapsed between the provocation and the fighting the defence of provocation would not stand as I concluded. Time which is of essence of the purpose of the defence. As a matter of fact the Accused even said they had been prepared to ignore the Deceased and his partner but for the fact that they came back throwing stones. -16- The law in Lesotho is that if the defence of provocation stands the accused shall be acquitted. And if the defence is successful there should not even be any conviction for a lesser offence. This should also be the finding in respect of Al although he said he was defending his brother. His conviction for Assault with intention to cause grievous bodily harm should stand. The Crown's contention was that this was a case where a defence of self-defence ought to fail. I agreed with respect. I judged the cases of the two Accused different with respect to the approach to the stabbing of the Deceased which was the last stage of the proceedings. Indeed it could on the one hand be said that it was a fight involving the four fighters two against the other two. It meant that, and this was the evidence, that A2 faced PW 4 and Al faced the Deceased. At the time when the Deceased had been overcome and beaten to the extent that he leaned against a fence A2 left his opponent and then administered a stab wound on the already helpless Deceased. While admitting that he looked away from PW 4 and faced Deceased who he stabbed he very glibly explained why he abandoned PW 4 and charged at Deceased who was already vanquished and defencelessly having been grievously assaulted with a stick by Al. A2 had been wielding his knife not since but even on the first stage of the fight up until the chase was stopped by people who intervened as said before. A2 was possessed of the knife -17- on the next stage. I found I could not find intention against him merely because he had been knife wielding over a long time. A2 said it was in the heat and during the run of the fight that he found himself facing Deceased when hitherto be (A2) had been facing PW 4. In the run of the fight he had turned to the Deceased who he stabbed because he still felt threatened by the Deceased. It can only mean that he overacted in his action against the Deceased as I believed him. See Julius Pone v Director of Public Prosecutions 199-2000 LLR 214. I would say this that A2 overacted even against the background that this last fight followed on an earlier encounter and that the intent of the Deceased and his partner on the last occasion was to re-engage the two Accused according to the evidence of PW 4. The evidence of A2 might reasonably be true and even on his own evidence a case of culpable homicide can be said to have been proved. I would not say that the Crown proved its case beyond a reasonable doubt that A2 was guilty of intention to kill either dolus or otherwise. He can only have killed the Deceased negligently. My feeling is that Al is guilty of Assault with intent to do Grievous Bodily -18- Harm and A2 is guilty of Culpable Homicide. My Assessor agrees. T. Monapathi Judge SENTENCE Delivered by the Honourable Mr. Justice T. Monapathi on the 8th day of October 2002 The two Accused are cousins. In Sesotho "Emong o re emong ke oa Rangoana'e". The first one has been convicted of assault with intent to Grievous Bodily Harm. This other one has been convicted of Culpable Homicide. I agreed that the circumstance surrounding the two assaults are primarily out of the provocation caused by the Deceased. It had to do with the remarks that the Deceased is said to have said about the other Accused being a woman or something like that. And also against the background that there was an unsavoury something that the Deceased had done to the sister of one of the Accused which seemed to have occurred before or the day before that day of "letsema" where wood was to be gathered. -19- Thereafter that "letsema" there was drinking and merrymaking at the place of PW 2. The Deceased and PW 4 having arrived finding either Accused 1 (Al) or Accused 2 (A2) present. After those remarks by the Deceased there was some fighting with sticks. At that time A2 was seen carrying a knife. Then on the second occasion it is then that there was that final fight which resulted in A2 stabbing the Deceased. In my judgment I remarked that I did not understand why A2 had to stab the Deceased when the Deceased had been fighting with Al. These are the circumstances about the fight itself or the events which ended up with the Deceased dying. These I have discussed in my judgment But they all underline the fact that the Deceased provoked the Accused and finally carried the last fight to the Accused. I noted that these two Accused persons are first offenders because Mr. Kotele says there are no records of these two Accused having had any previous convictions. I have considered the factor in my sentence. Both these Accused as I accepted have got the dependents to a different -20- extent. The First Accused having a wife and three children. The Second being married with one child. This is an important thing to consider. But the death of a Deceased person is a serious thing in that a life has been lost. The Deceased must have had the dependants or might be having relatives in the same way the Accused do have. He will never come back to life. But these two accused even if I sentence them to prison they will still come back from prison into their own communities and families. I have to re-visit the serous thing that the Deceased seemed to have been the person who provoked the two accused extensively. And in evaluating this provocation one has to look at things through the eyes of the standard of the community from which these two Accused come from as our law enjoins us to do. Both of them come from circumcision school and obviously they see things differently in my understanding. And this I would take judicial notice of that in the people who come from circumcision school are not happy if one suggests to them that they are boys or they are women or something like that. To them that is serious kind provocation. I do not know why people from the background of the Accused see things that way. That is why the law says that one must always judge them by their -21- own standard. I would say that I agree with Mr. Fosa that Accused are unsophisticated people and they are Basotho tribes men. I noted again that they have been faithful in attending at trial, in abiding by the conditions of their bail and including that they have obeyed the warning that they attend even after they were convicted when their Counsel had fallen ill. The courts of this land are often warned that in having to impose sentences they must avoid being angry or end up exaggerating the seriousness of an offence. At the same time one must not as presiding officer forget that one must mix other consideration with the need for mercy. But the mercy which one exercises must not end up making a sentence that one imposes too lenient neither should the sentence be too harsh. It is because sentences that are too lenient or that are too harsh will look nonsensical and will tarnish the reputation of Courts. Sentence must be realistic. Sentences that are realistic will have to take account of the fact that the public has interest in the judgments and rulings that are passed by courts. This is proper and to be expected because the Courts belong to the nation. -22- At the same time the Court must not overlook the personal circumstances of an accused persons it is said that they are unsophisticated people as a factor together with their family situation. The Court must look at the crime itself. I have commented about that there was that first fight there was a second fight in which there was the assault and the death of the Deceased person. All of these which are serious offences. I now come to an important issue that receives debate on a daily basis in our courts. Then the question is what is the aim of punishment. One of them could be that a corrected person is warned not to repeat the crime that he has committed. Others are warned who may be tempted to commit the same crime nor commit offence. Sometimes a person is taken out of the community to protect the community like sending him to prison. Sometimes a convict is dispatched finally by sending him to death so that he never trouble anybody. To others question still remains : What is the purpose of punishment? The modern trend is to say that corrected person must be rehabilitated. Their behaviour must be corrected. If they sent him to prison it must also be for the purposes of their being rehabilitated. And there are many ways of punishment these days that aims at or focus on rehabilitating an offender. And -23- of course it depends on the resources of a community or the satisfaction of a system that is being run which would dictate a number of options. That is why if it is a country which has many resources then there are many options. Our country is not one of them. To a poverty stricken people fine are not an easy option. That is why we still remain with a sentence of a prison where otherwise other options would fit the bill. One of them is diversion. The other that needs more emphasis is Community Service. And what is unfortunate in its result these days is that Courts now are looking inside the prisons to find what they really look like. The conditions these days are worrisome. There is overcrowding, there are insanitary conditions and a lot of bad things now happen in prison. One finds that there is sodomy and rapes in prison. Having said all these I now impose the following sentences: You Al I sentence you to three years. That three years I will suspend for three years on condition that you will not commit a crime involving bodily harm or violence. You A2 I sentence you to five years imprisonment without option of a fine. Those I do not suspend. That is all. T. Monapathi Judge