R v Nchela (CRI/T 5 of 93) [1995] LSCA 147 (29 September 1995)

CRI/T/5/93 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: R EX v G A B R I EL P U S E L E T SO N C H E LA J U D G M E NT Delivered by the Honourable Mr. Justice W . C . M. Maqutu on the 29th day of September, 1995. In this case, the accused is charged with the crime of murder. "In that u p on or about the 24th M a r c h, 1991 and at or near Khohlo- ntso in the district of Thaba-Tsekathe said accused did wrongfully, unlawfully and intentionally kill Kosaphe P h o ka by shooting h im with a .38 special revolver and did c o m m it the crime of m u r d er aforesA1d. T he accused pleaded not guilty to the charge. In terms of Section 273 of the Criminal Procedure and Evidence Act of 1981 accused admitted certain facts and deposition of the Preparatory Examination. Section 273(1) provides: - " An accused or his representative in bis presence m a y, in any criminal proceedings, admit any fact relevant to the issue and the admission shall be sufficient proof of that fact." F or convenience, I decided to treat the admitted Preparatory Examination depositions as if they were evidence actually given before m e. Both counsel for the accused and counsel for the C r o wn agreed with this m o de of conducting proceed- ings. T he identity of the deceased K o s a p he P h o ka and the fact that he w as shot by the accused with a .38 revolver w as admitted. P. W.1 w as Motjoka G e r e m a ne (His deposition is on pages 2 and 3 of the Preparatory Examination record). He states he w as looking after cattle at Thabaneng near the road to Bokong. He saw M a s a ke meet Matia. M a s a ke w as Kosaphe's girl-friend. Kosaphe (deceased) c a me and Matia left. P. W.1 s aw Kosaphe's claps go up and d o wn and the girl cried. Deceased stopped w h en he s aw Fanyane and Koloti. A vehicle c a me and P. W.1 says he heard one of the m en from the vehicle tell Kosaphe to get into the vehicle. T he m an caught Kosaphe (the deceased). P. W.1 says he saw Kosaphe (the deceased) run and w h en Kosaphe got below the road, he heard a g un report. P. W.1 says he then saw Kosaphe fall and roll d o w n w a r d s. T he m en were not in any uniform. P. W.1 w as 150 yards a w ay from the fighting. P . W .2 w as Matia M o o k o, aged 17 (His deposition is on page 3 of the Preparatory Examination record). His evidence shows that he w as m et by the deceased while P . W .2 w as in the c o m p a ny of 'Masake Takane (a girl) w ho w as P. W.2's girl friend. Deceased (finding them together) confronted the girl by standing in front of her. P. W.1 left deceased and the girl together. W h en he w as s o me distance a w a y, he saw deceased slap the girl. P . W .2 reported the incident to Fanyane Rantau and Koloti. P . W .3 Captain M o r e mi of the Police Thaba-Tseka, (His deposition appears on Page 4 of the Preparatory Examination record). P. W.3 says after receiving a report from the accused, he asked for die g un used. On the 25th M a r c h, 1991, accused gave h im a 38 gun, two rounds and one empty shell. He sent them for fire-arm examination. P . W .3 went to the scene of crime. F r om where the vehicle w as standing to where the body had fallen w as a distance of 50 paces. It w as a sloppy place, hard /... to measure with precision. P . W .4 Lekhonatha Moqiphi identified the body before the doctor before the post m o r t em w as conducted. P . W .5 T e b o ho Mohlathi also identified the dead b o dy of deceased before the doctor examined it. P . W .6 was Fanyane Rantau, w ho gave a sworn testimony viva voce before this Court. P . W .6 says he got a report from P . W .2 that they should go and intervene as a boy w as assaulting a girl. P . W .6 says w h en he and Koloti c a ms to where they could see what w as happening, nothing was happening. T he girl w as walking ahead of the boy w h o se n a me w as Kosaphe (now deceased). Deceased w o u ld not reply to the question w hy he had been fighting with the girl. P . W .2 identified the girl as M a s a k h e. M a s a k he and deceased were lovers. Just then a motor vehicle stopped in front of the girl. P . W .6 and Koloti w e nt to ask for a lift from the occupants of the motor vehicle. T h ey were given a lift and consequently got on the bakkie of the vehicle. It w as a van with no canopy. O ne of the m en from the vehicle got d o wn asked the girl w hy she w as crying. She said "that person bit m e ", pointing at the deceased. Kosaphe (the deceased) w ho had in the meantime got to the vehicle w as asked w hy he had assaulted the girl. Deceased replied that it was a matter between him and the girl. /.... He w as told to get into the vehicle. Deceased sA1d he would not do so as he w as not going far. O ne of the m en from the vehicle hit deceased with a fist. Deceased hit back, although P . W .6 did not see where the blow landed. A second m an alighted from the vehicle and tried to catch deceased. Deceased ran away. T h ey chased deceased. Deceased ran below the road. As he ran one of the m en produced a fire- a rm and shot him. Deceased ran a few paces and fell. As he fell d o w n, those gentlemen told them to go and pick him. W h en they picked him, he w as groaning. T h ey carried h im about 100 paces to the road. Deceased belched and died. O ne of the m en brought the vehicle and they loaded the deceased in it. W h en the m an shot deceased, he w as 10 paces from him. T he m an w ho fired w as the accused. He never sA1d a w o rd before he fired. P . W .6 says none of these two m en introduced himself as a policeman. P . W .6 did not notice any injuries on the girl. W h en they got to the village of N k o k a ne the two m en told Koloti to go and report to the chief of the village that Kosaphe w as dead. Koloti c a me from the village of Nkokana. P . W .6 got d o wn at his o wn village of Sekhohola. M a s a ke w as taken with these two to where they sA1d w as the mortuary. U n d er cross examination P . W .6 sA1d the following: Although P . W. 6 w as not exactly deceased's friend, he conceded they had at one time herded animals together. P . W .6 says he w as very angry that deceased had been shot. He felt accused ought not to have done so. Deceased had fallen 30 paces below t h e m. They carried h im 100 paces to the road. Kosaphe had fallen 120 paces from the motor vehicle. Kosaphe (deceased) w as running in the road. W h en he s aw the t wo m en were chasing him, he turned and got out of the road and ran d o w n w a r d s. W h en he got out of the road, the two m en w ho were chasing h im stopped and one of the shot him. Deceased swerved from the road w h en he w as 20 paces from the vehicle. He ran about 120 paces d o w n w a r ds before he fell. These t wo m en were standing w h en one of them fired. They never got out of the road. Before deceased fell, he w as no m o re running normally. P . W .6 says he did not hear accused used the swearing words "nyoa m e ng ting", your mother's vagina. P . W .6 insists he did not hear w h en accused said he w as a policeman. P . W .6 says accused w as 4 paces from the deceased w h en deceased got out of the road and ran downwards. P . W .6 denies any of the two m en w as ahead of the other as they chased deceased. P . W .6 denies deceased ran only 3 paces before he fell after being shot. P . W .6 agrees that had accused not fired, deceased would have outrun them. At the Preparatory Examination P . W .6 had sA1d accused had said to the deceased: " Y ou are w r o ng to say it is your business, you should have told us /... w hy y ou assaulted her. C o me into the vehicle." P . W .6 conceded that his m e m o ry w as better at the Preparatory Examination than it w as at the trial. At one stage he said what he said at the Preparatory Examination should be taken as correct and that he stood by it. At that stage of proceedings, Counsel and Defence Counsel agreed that portions of M a s a ke Takane's evidence at the Preparatory Examination be admitted by consent. P . W .7 M a s a ke Takane's evidence followed. (The portion of M a s a ke Takane's e v i d e nt that c o me from pages 4 and 5 and page 8 of her deposition at the Preparatory Examination were read into the record). P . W .7 says she was from a Church Service. She says after she had been assaulted by the deceased, a vehicle passed. Deceased w as asked by one of the m en from the vehicle w hy he had assaulted her. Deceased sA1d it w as none of his business. Accused said: "Look here by boy, I am a policeman, c o me into the vehicle." Deceased refused. Accused clapped him. Accused hit accused with a fist. Posholi, w ho w as with accused, c a me to help but deceased fled. P. W.7 then heard a gun report. She later saw deceased loaded on the /.... vehicle, he w as bleeding. He w as taken to hospital. P . W .7 says she w as not taken for medical examination because she had no visible injuries. She felt pain in s o me parts of her body. T he reason deceased assaulted her w as that deceased had found her with another boy friend of hers, Matia P . W . 2. Deceased w as also her boyfriend. Deceased started hitting and kicking her. P . W .6 and Koloti c a me to the scene after they had separated with deceased. T h ey found her crying and she told t h em she had been assaulted by deceased. W h en accused c a me from the vehicle and asked deceased w hy he had assaulted P . W . 7, and accused sA1d it w as none of his business, accused sA1d:- " L o ok my b oy I am a policeman, enter the vehicle, y ou will explA1n w hy y ou assaulted the child." Deceased refused to get into the vehicle. Accused clapped him, deceased fought back with bis fist. Posholi alighted from the vehicle. Deceased fled and said " N y oa m e ng ting" (you mothers' vagina). Posholi threw stones at him. P . W .7 heard a g un report. P . W .7 s aw deceased fall. After deceased w as carried to the vehicle, she w as told to get into the cabin /... front seat of the van. T h ey took deceased to the hospital. She later heard her boyfriend, the deceased, had died. P . W .7 says she had no visible injuries except m ud stains. T he post m o r t em report w as admitted by consent and m a r k ed Exhibit "A". T he C r o wn then closed its case. T he accused gave evidence in his o wn defence. T he accused says they stopped in front of s o me four people w ho w e re following each other because a lady w as screaming. As a result of enquiries, he c a me to k n ow that the deceased w as responsible. He asked for an explanation f r om the deceased. T he deceased said it w as none of bis business. Accused says he retorted: "Look here boy, I am a policeman, I have a right to ask because by hitting the girl you have committed a crime. I am arresting you. Get into the vehicle." Accused says t wo m en and the girl were near the vehicle towards the front. He w e nt towards the boy (meaning deceased), caught h im by the a rm and pulled h im towards the vehicle. T he Deceased pulled back. Accused slapped him. Deceased let loose a barrage of punches and hit accused. Accused lost consciousness. Later, accused changed this to a feeling of slight dizziness. He added only one b l ow landed. He w a r d ed off the rest. T he b l ow that landed, landed on the forehead. Accused says w h en he looked up, he realised deceased w as beginning to run a w a y. He chased deceased with Warrant Officer Posholi. Deceased w as running in the road, w h en he w as s o me distance away, he turned and ran out of the road d o wn a curving slope (letsoapo). T he continued the chase. Accused says he had resolved to arrest deceased because P . W .7 the girl w as full of m ud as if she had been rolled in the m u d. Accused thought she w as badly injured at the lime. As deceased ran, it got into his m i nd that deceased w as also committing a serious offence of escaping from lawful custody. Accused says he realised that he could not catch the deceased, he then pulled out his 38 special revolver. He called the b oy and said stop or I shoot. T he b oy continued running. He then aimed at the boy's legs in order to break h im by disabling the lower part of his body. This w as being done in order to arrest him. Deceased ran three or four paces and fell. Deceased w as 50 paces from h im w h en he fired. Accused says he is supposed to fire a warning shot after telling an escapee to stop. Only then can he actually direct fire at the escaping suspect. E v en so, everything depends on the particular surrounding circumstances. Accused said he arrested deceased for assault with intention to do grievous bodily harm, indecent assault, and escaping from lawful custody. W h en he neared Thaba-Tseka, he realised deceased w as dead. At Ha N k o k o a na he had sent s o m e o ne to report the death of the deceased. T he b o dy w as taken to the mortuary and (he girl sent to a doctor for medical examination. Accused says he never intended to kill deceased and never doubted the legality of what he w as doing. Cross-examined accused said his fire-arm has a range of between 50 and 100 metres. It loads 6 bullets. Accused says he w as very polite during all these proceedings and is a highly disciplined person because of his training as a policeman. He is never emotional. Accused says deceased w as about 23 years old while the girl w as 19 years old. P . W .7 asked to be taken to a doctor and he took action to see that P . W .7 w as taken to a doctor. He s aw the medical report of P . W . 7, it disclosed bruises. P . W .7 must be telling a lie if she says she w as never medically examined. During the chase deceased w as 50 paces from h im and 80 paces from Warrant Officer Posholi. Warrant Officer Posholi w as 20 to 30 paces f r om deceased. Warrant Officer Posholi w as 35 years old at the time but w as very fat because he had just returned from a promotion course. Accused says he w as obliged to fire at deceased because Warrant Officer Posholi w as tired. P . W .6 and /... other witnesses did not hear h im w a rn deceased to stop because he w as shouting only moderately. He has no doubt deceased heard him. Accused says he had aimed low the bullet hit a stone which deflect it upwards. That is w hy it hit deceased in the chest region. Accused says he actually heard the bullet hit a stone and ricochet upwards. Accused w as not able to say w hy he did not say this in his evidence in chief. Deceased claimed he w as very accurate with his shooting, he could be classed a m a r k s m an of s o me sort. A c c u s ed called Warrant Officer Posholi, w ho b e c a me D . W . 2. He said they s aw t wo people fighting in the road at distance. He d r ew accused's attention to this fact. He thought they w e re m en because he had not at that stage discovered that one of t h em w as a girl in jeans. He told me Court that w h en they reached deceased and P . W . 7, (hey found P . W .7 crying and very m u d d y. It w as as if P . W .7 had been rolled in m u d. Warrant Officer Posholi stopped the vehicle in front of t h em intending to find out w h at w as happening. T he girl w as crying aloud. He switched off the engine after parking the vehicle. Accused (after being directed to deceased by the people nearby) asked deceased w hy he had assaulted P . W . 7. Accused said that is none of his business. Accused then said: " L o ok here boy, I am a policeman, I am arresting y o u, get into the vehicle." Deceased resisted. A c c u s ed tut h im with a clap. Deceased hit accused with a n u m b er of b l o ws with his fists. Warrant Officer Posholi got out of the vehicle to go and help accused. Deceased ran clown the road in the opposite direction. Warrant Officer Posholi w as ahead of accused during the chase. At 50 paces deceased changed direction and went d o wn the rocky twisting slope. Warrant Officer Posholi says he heard accused tell deceased to stop or he would shoot. Deceased w as 30 paces in front of Warrant Officer Posholi. Accused w as 35 paces behind Warrant Officer Posholi. M r. Posholi says he w as too fat to catch up with deceased, he w as tired. He heard a g un report. There were t wo sounds. It w as as if something had been hit and deceased fell. Deceased had fallen 1 30 paces from the vehicle. Warrant Officer Posholi in cross-examination conceded that he h ad not said before this Court what he said at the Magistrate Court. That w as an accidental omission. Similarly, Mr. Posholi never mentioned the second sound that followed the shooting. He says he realised a stone had deflected the bullet yet this m ay not have been in the report he m a de after the incident. He denied he and accused h ad talked over and agreed so that his evidence should corroborate that of accused. He agreed the girl P . W .7 had no visible injuries. Assessing credibility is not always easy. It seems as if f r om the admitted deposition of the girl P . W .7 that accused did indeed say that he w as a policeman although P . W .1 Motjoka G e r e m a ne and P. W .6 did not hear him. This admitted fact I h a ve to accept. P . W .7 also says Warrant Officer Posholi threw stones at deceased during the chase. This fact I have also to accept. It is admitted by the accused himself that he assaulted deceased. W as that necessary? Deceased hit back. This behaviour of accused and Warrant Officer Posholi b e c o m es only partially relevant in that they do not s e em to have w o r k ed within the law at all times. Nevertheless to err is h u m a n. I do not think this behaviour should be pursued further. T he only thing is that deceased's retaliation upsetted and angered accused. If Warrant Posholi says he stopped in front of P . W . 6, P . W .7 and deceased intending to find out what w as happening, then it b e c o m es far-fetched to accept that accused had formed the intention to arrest the deceased for any offence. W a r r a nt Officer Posholi and the accused are experienced policeman. Policemen investigate before they decide to arrest any person. E v en if investigation is not always called for, a policeman will attempt to get s o me explanation before the acts. I therefore accept that even w h en deceased w as asked to go into the vehicle it w as for interrogation purposes. I w as a bit unsettled and unimpressed by the exaggerations which accused and Warrant Officer Posholi m a de before Court. T h ey then proceeded to lie in concert. If only accused had let Warrant Officer Posholi to tell his o wn story unadulterated, the accused and the Court would have benefited. As it happened, the evidence of Warrant Officer Posholi b e c a me worthless. I reject that deceased w as under arrest or that he w as being arrested for a specific crime. E v en if he w a s, accused having regard to the surrounding circumstance could only have had in m i nd assault c o m m o n. Indecent assault and escaping from lawful custody are being concocted to bring the offences within Schedule I Part II of the Criminal Procedure and Evidence Act 1981. This is being done to escape the consequences of the accused's lack of self-control and the reckless ill-considered acts that followed. T he deceased in this case w as shot by a policeman while he w as running away. That policeman stands before me today charged with the crime of murder. T he accused claims the accused w as already arrested or w as resisting arrest. Accused justifies the shooting of the deceased by relying on Section 42(1) of the Criminal Procedure a nd Evidence Act of 1981 which provides that where a policeman or peace officer or even a private person required to m a ke an arrest: "attempts to m a ke an arrest, and the person w h o se arret is so attempted flees or resists and cannot be apprehended and prevented f r om escaping, by other m e a ns than by the peace-officer or private person killing the person so fleeing or resisting, such killing shall be justifiable homicide." T he accused agrees that this Section applies to serious crimes. T he offences to which Section 42(1) of the Criminal Procedure and Evidence Act 1981 which might be relevant to this case w h i ch appear in Schedule I Part II of the Criminal Procedure and Evidence Act 1981 are: (i) Indecent assault. (ii) Assault in which a dangerous w o u nd is inflicted. (iii) Offences the punishment whereof m ay be imprisonment exceeding 6 months without an option of a fine. T he accused states he had arrested deceased on a suspicion of indecent assault, assault with an intention to do grievous bodily h a rm and escaping f r om lawful custody. T he facts as believed by me do not s h ow that deceased w as definitely under arrest, nor w as he ever in any f o rm of custody. T he accused's story that deceased w as under arrest is a recent concoction which w as belatedly supported by Warrant Officer Posholi D . W . 2. Accused exaggerated everything to magnify the deceased's transgressions. P . W .7 had been assaulted with fists and kicked by deceased. There w as s o me m ud on her. Y et accused and Warrant Officer Posholi built a false story of her appearing to be so m u d dy that she appeared to have been rolling on m u d. T he only fact that Warrant Officer Posholi seems to be consistent with his Preparatory Examination deposition, w as that he s aw and told accused that there w e re t wo people fighting in the road. These turned out to be P . W .7 and deceased. I believe this is true. That being the case there w as no question of indecent assault. P . W .7 did not have any w o u nd but w as crying. H e re too there w as no question of assault with intent to do grievous bodily h a rm of any kind. T he view I have w as that accused w as of the view that an ordinary assault had been committed. A s s u m i ng accused had grounds to suspect that a serious crime had been committed, what w o u ld have m a de this killing justifiable? T he premise we have to begin with is that the life of every person is sacred. Yet, the maintenance of law and order and the elimination of serious crimes is just as important. Without a suable society in which criminals are apprehended, the very lives could be endangered. Wessels CJ in a R v Hartzer 1933 AD 306 at page 309 dealing with resort to firearms in such circumstances said: "In any case a policeman cannot shoot at a person arrested because he runs away. He must use other m e a ns to recapture him, and he can only resort to a firearm if he can use no other m e a ns whatever to recapture the arrested person." In that case, a policeman had shot an African w ho wrenched himself free and began to run. T he policeman had d e m a n d ed a pass from the African and produced handcuffs and told h im that he would arrest h im if he w as without a pass. T he African did not produce a pass and the policeman got hold of him. T he African wrenched himself free and began to run. Thereupon the policeman produced his g un and fired twice. T he first time he fired at the ground. T he second time the policeman says he aimed at the ground but in fact struck the complainant at the back. It w as held the African w as never in lawful custody and even if he w a s, the shooting w as not justified in the circumstances. In S v Swanepoel 1985(1) SA 563 the Appellate Division of South Africa held that where the accused invokes the protection of section 49(2) of Act 51 of 1977 (which is similar to Section 42(1) of the Criminal Procedure and Evidence Act of 1981 of Lesotho, the onus is on h im to s h ow those provisions apply to turn. In the case before m e, there were no grounds for the accused to believe that the /... deceased could never be apprehended if he had outrun the accused. In Mazeka v Ministry of Justice 1956(1) SA 5 17 AB V an d en Heever JA said: "The legislature could not possibly have intended that recourse to shooting should be taken lightheartedly..." His Lordship also noted that there w as "information which points out to the likelihood of the arrestee being identified, located and arrested", later. T he accused says it did not occur to h im that he could easily c o me for deceased on another day and easily find h im in his village. This consideration b e c o m es all the m o re relevant w h e re the crime committed is a relatively m i n or assault. While the harassment of y o u ng ladies by y o u ng m en is deplorable, righteous indignation should not becloud judgment. In the case of R v Koning 1953(3) SA 2 20 the situation w as s o m e w h at equated to private defence and killings that occur in such situations. T he situation is not quite the same. In an emergency where a life is threatened, there is no r o om for armchair speculation. In cases such as this one, there is no such an emergency. Secondly, the crime committed or suspected has to be weighed against the need to take a life. Courts strictly interpret this Section in favour of protecting lives. If /... conditions are fulfilled to the letter, then even where the accused has teen unreasonable, he will be afforded protection under that Section. W h at I have said funds support in R v Britz 1949(3) SA 293 at page 303 and 304. After correctly showing in criminal cases the onus is always on the C r o w n, Schreiner JA said: "But it should be observed in the first place that the section is obviously designed to provide protection for a person, w ho killed another in specified circumstances..., and that it is not available where their presence has only not been negatived In relation m o re particularly to s o me of the offences mentioned in the First Schedule, m a k es it clear that the section m a y, on any view of onus protect persons w ho ought not to be protected.... N ow the dangers... would be greatly increased if the onus lay on the C r o wn to exclude the reasonable possibility that the specified circumstances exist... A nd bearing in m i nd also the emphasis which our law and customs have in general placed on h u m an life. I am satisfied that the legisla- ture must have intended that a person w ho has killed another and seeks to use the very special protection afforded by Section 44 should have to prove, by a balance of probabilities, the circumstances specified in the section as a pre-requisite to immunity. " T he underlining is mine and the Section 44 referred to is identical to section 42(1) of our Criminal Procedure and Evidence Act of 1981. It w as an uphill struggle for the accused to fit the nature of the crime committed within the category of those in Schedule I Part II. he had to exaggerate and lie outright. In this case accused being in possession of a firearm w as expected to keep his head through out. He w as assaulted and humiliated by a boy w h en he w as doing his police duty in a moderate manner. Accused's untruthfulness in this matter, /..... w h e re the onus w as on h i m, w as pitiable. His m i nd w as so affected by the sudden provocation, from the assault of the deceased, that he acted with criminal recklessness. Unfortunately once in trouble he decided to get himself out through lies. Taking the case of S v S i g w a h la 1967(4) SA 5 66 I find nothing that conclusively s h o ws accused had the subjective intention to kill deceased. I note that accused himself does say he aimed his g un at deceased's lower limbs. T he act, according to the accused, w as deliberate. I doubt if accused (in the m o od he w as in) in less than five seconds exercised the cool judgment he claims he did. I do not believe he particularly a i m ed at the limbs. Borrowing f r om H o l m es JA at page 5 70 AE of S v Sigwahla: "The expression intention to kill does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and w as reckless of such a result." I h a ve already disbelieved Applicant w h en he says he directed his m i nd at shooting deceased and that he felt entitled to do so. Because of my factual finding, there can be no dolus directus. I am only left with determining whether there w as such recklessness as I could find beyond reasonable doubt that he subjectively intended /... to kill deceased. T he v i ew I take is that even if I applied the objective test (let alone the subjective one) accused cannot be d e e m ed to have intended to kill deceased. W h at is clear is that he w as suddenly angered and provoked by a lively y o u ng m a n, the deceased. Deceased w as just as angry from his o wn quarrel with his o wn girl friend. In South African law, Schreiner JA in R v Krull 1959(3) SA 3 92 at 3 99 E said provocation per se does not convert murder into culpable homicide. "Since a merely provoked killing is never justified, there seems to be no g o od reason for holding it to be less than m u r d er w h en it is intended". After dealing with the problem of choice of w o r ds which I take to include both the "objective" and subjective tests, Schreiner JA in & v Krull page 3 99 B concluded:- "Legal systems can only attempt by one approach or another to give effect to the basic idea, which is that the provoked person m ay have been so upset that the mental element requisite for m u r d er m ay not have been present." It is because Accused's mental balance w as suddenly upset, that he could not in my view be said to have subjectively (let alone objectively) intended to kill deceased. /... W h at accused did (though not murder) borders on m u r d er if we follow present South African cases. T he position is changed by the sudden provocation accused encountered. Accused wanted to lay hands on deceased for personal reasons after being assaulted. He w as no m o re acting as a policeman, therefore he w as not going to let the deceased to escape into the ravine. Consequently he shot the deceased quite recklessly driven by anger. T he position of the law is simply that the police should not shoot people w ho run a w ay w h en they are suspected of m i n or offences. He w as expected to have weighed the nature of the deceased's offence. This he w as not in a position to do. For that reason, Accused w as negligent. Accused's case is not helped by the fact that he says he is a g o od shot. There m ay be a suspicion that he shot to kill. This does not entitle me to find he subjectively intended to kill the deceased. I am obliged to give h im the benefit of the doubt. T he Criminal L aw Homicide (Amendment) Proclamation of 1959 also obliges me not to find the accused guilty of murder on account of the immediate and sudden provocation that preceded the shooting. O ur law of provocation w as belatedly changed in 1959 and is n ow (and remains) similar to Section 141 of The Transkei Criminal C o de and English law. There is a slight difference between the L aw of Lesotho and present South African law. This is often overlooked. E v en if accused might have been found guilty or murder, according to present South African law, in Lesotho it would be culpable homicide because of the Criminal Law Homicide (Amendment) Proclamation of 1959. Taking all the evidence before me into account, I do not believe that w h en accused told deceased to get into the motor vehicle, he w as formally arresting the deceased. I believe P . W .7 M a s a ke w h en she says accused told deceased it w as his business to k n ow w hy P . W .7 w as assaulted by the deceased because he w as a policeman. It seems to me the accused w as obliged to assert his authority as a policeman because of the attitude of the deceased. H ad deceased co-operated, deceased might not even have arrested him. T he view I take is that even w h en accused told deceased to get into the motor vehicle, it w as in order to ascertain the facts. Although accused struck me as a decent maun, once he w as in trouble he tried to get himself out of it by telling a string of lies. In my view, whether deceased had been arrested and w as escaping this does not m a ke any difference. He should not have been shot in the m a n n er he w as shot. I, therefore, find the accused not guilty of M u r d e r. He is guilty of Culpable Homicide. My t wo Assessors agree. J U D GE For the C r o wn : M r. N. Qhomane For the Accused : M r. Z. Mda