R v Pitso (CRI/T 22 of 89) [1990] LSCA 166 (26 October 1990)

CRI/T/22/89 IN THE HIGH COURT Of LESOTHO In the m a t t er between:- R E X and MATHIBELI P I T SO Accused J U D G M E N T Delivered by t he Honourable M r. Justice J. L. Kheola on t he 26th day of October, 1990. The accused is charged with t he crime of m u r d er in t h at upon or about t he 25th day of D e c e m b e r, 1987 and at or n e ar Thupa-Likaka in t he d i s t r i ct of M a s e r u, t he said accused did unlawfully and intentionally kill Bokuluba M o s a m o. T he accused pleaded not guilty to the c h a r g e. T he preparatory examination depositions of L t. John Tihabi and Lefa Khoarane were formally admitted by the d e f e n ce and form part of t he record. /2 - 2- The first witness called by t he Crown in this Court is Kelebone Khoarane. He testified that on the 25th December, 1SS7 he was in t he company of Lenka Khoarane ( P . W . 2 ), Khojane Mokheseng (P. M.3) and the deceased. They w e re herding cattle at a place called Sekoting which w as a reserved pasture. According to him the area of Likoting falls under the jurisdiction of one Mpota who had actually declared t he said area as a reserved pasture. He denied that the area fell under the jurisdiction of the accused w ho is a headman in a neighbouring village. As they were herding t h e ir c a t t le t he accused and one Maila Mphou (D. W.2) arrived. At the time of their arrival, the witness and his companions w e re sitting above the cliffs and overlooking their cattle. The accused and D. W.2 were on horseback and when they passed below the cliffs near where the witness and his companions were sitting, the accused insulted them and said they were grazing cattle on an area s et aside as a reserved pasture. They did not respond to t he i n s u l ts a nd t he accusation. The accused a nd D. W.2 passed and w e nt to the cattle and started to drive them. D. W.2 tried to collect other cattle which did not belong to t he herd of c a t t le w h i ch w e re u n d er the control of the witness and his companions, but the accused said he should leave those o t h er cattle but drive only t h o se belonging to the witness and his companions. Kelebone Khoarane (P. W.1) says that as soon as t he a c c u s ed and D. W.2 drove the cattle away they decided to go h o me and came d o wn the cliffs through the only route t h at was available t h e r e. This route led them to a spot w h e re the found themselves infront of t he cattle which w e re being driven by t he accused and D. W.2. The accused d i s m o u n t ed and fired in their /3..... - 3- direction; the bullet passed between them. When asked how he saw the bullet pass between them, P. W.1 said he heard its sound. At that time the accused was about ten paces from them. Lenka Khoarane ran away when the first shot was fired. As they continued to descend the slope t he accused fired the second bullet which passed on their side. P. W.1 says that he was walking side by side with the deceased a nd Khojane was infront of them. He heard the third gun report and when he turned he saw that the deceased had fallen down. The accused mounted his horse and drove the cattle away. The deceased had a small wound on the back of the right shoulder and an open wound on the left side of the neck. The latter wound was bleeding . The deceased died immediately after the shooting. In cross-examination P. W.1 said that it was customary to graze their cattle at the reserved pastures during Christmas day and that there was no need to declare the reserved area open for grazing for that day only. They had just passed infront of the cattle and were about ten paces from them when the accused fired the first shot. The accused was behind them. He denied that when they came down from the cliffs they threw stones at the accused and D. W.2. He denied that the accused fired warning shots in the air. They did not run away when the accused fired shots at them because they had lost hope of survival. He denied that the accused dismounted his horse because of the stones that were being thrown at him. /4 - 4- P. W.2 Lenka Khoarane corroborated P. W.1 on all material aspects of the c a s e. He was sitting above t he cliffs with the deceased, P. W.1 and Khojane Mokheseng when t he accused and D. W.2 passed below t he c l i f f s. The accused insulted them and accused them of grazing t h e ir cattle at a reserved pasture. He pointed a gun at them and passed to the c a t t l e. They decided to go home because they cattle had been seized and were being taken to t he pound. He remained at t he top of t he cliffs when t he others w e nt d o w n. Immediately after their departure he heard a gun report below the cliffs and ran away. He returned to the scene of t he crime long after he had heard t he third gun report. He found that t he deceased was already dead and he does not know how he m et his d e a t h. P. W.3 Khojane Mokheseng also corroborated P. W.1 on all material aspects of this c a s e. He deposed that on the day in question the accused and D. W.2 found them sitting above the c l i f f s. T he former insulted them and threatened to shoot and kill them. They did not respond to t he insults and t he t h r e a t. The accused and D. W.2 went to t he cattle and started to drive them away. P. W.2 says that they decided to go h o me and came down the cliffs through t he nearest route available to them. As they c a me down the accused dismounted his horse and fired two shots at them. They continued to walk down t he s l o p e. The accused followed them. When he (the w i t n e s s) looked back he saw t he accused following them; he warned t he deceased that t he accused was following them. Even before the deceased could answer him, he (deceased) was gunned d o w n. The accused mounted his horse and joined D. W.2 to drive /5 -5- the cattle to the pound in the village. P. W.3 says that they tried to help the deceased but w i t h o ut any success because he died on the spot. He denied t h at they tried to stop the cattle from being driven away by the accused and D. W.2. The deceased had a wound on the back of the shoulder and another on the base of the neck. The accused is a headman in the village of ha Topa. He claims that t he area of Sekoting falls under his j u r i s d i c t i o n. On the day in question he was going to Loting where one of his cattle had gone m i s s i n g. That was the reason why he w as carrying his shotgun. On his way to Loting he saw cattle grazing at Sekoting which was a reserved pasture. He decided to go and seize those cattle and impound them. He was in the company of D. W.2. When they c a me near the cattle they saw herdboys sitting above the c l i f f s. He asked them who had allowed them to graze their cattle t h e r e. They did not answer him. They passed and started to drive the cattle. The herdboys came down the cliffs and stood infront the cattle. They started throwing stones at the accused and D. W.2. All of a sudden they passed the cattle and came straight to him ( a c c u s e d ). He was still on horseback. As they continued throwing stones they hit the h o r s e. It jumped up and threw him to the ground. His gun also fell d o w n. Realizing that he had no alternative but to defend himself, he took his gun,loaded it and fired in the a ir with a hope to scare away the herdboys w ho had actually cornered him under the c l i f f s. They did not run away when he fired in the air but they kept on advancing towards him and throwing stones at him. He says that /6 -6- when he fired that first shot P. W.3 was only about five paces from him; instead of running away when he heard the gun report he merely closed his eyes f or a short w h i l e. He loaded his gun again and fired in the a i r. They kept on advancing towards him and throwing stones. He was all the time retreating and evading the stones that w e re being thrown at him. The accused testified that there w as a group of herdboys who w e re throwing stones and denies that only P. W.1, P. W.2 and P. W.3 w e re involved in t he f i g h t. Regarding the third and fatal shot that he fired, accused says that he does not know hot; that happened. He does not know how he loaded the gun and shot the deceased. The reason for this is that he was too frightened because he realized that they w e re going to kill him. He noticed that something was amiss when some of the herdboys went to one of them who had fallen d o w n. He rode his horse and joined D. W.2 in driving the cattle to the pound. D. W.2 Maila Mphou corroborated the accused in all material respects of this case. H e, however, denies that the accused was concerned below the c l i f f s. He estimates that there w e re o v er twenty herdboys w ho w e re throwing stones at the accused. I have considered the evidence of the Crown witnesses as well as that of the defence witnesses and I am of the opinion that their statements must be taken with a pinch of salt. There was no reason why P. W.1, P. W.3 and t he deceased went and allegedly passed infront of the cattle which w e re being driven to the - 7- pound. Even if there w as only one path leading down the c l i f f s, they would have waited until the cattle and their drovers had passed that point of the c l i f f s. In any c a s e, t he defence witnesses testified that there were several paths that one could take from the top of the cliffs. I am of the opinion that the only reason why they w e nt infront of the cattle was to stop them from being taken to the pound. It is a very common occurrence that Basotho herdboys never let their cattle go to the pound without some resistance especially where there are two conflicting claims over the area in question. in the instant case the accused claims that the area of Sekoting is under his jurisdiction. On the other hand the Crown witnesses deny t h is and allege that the area falls under the jurisdiction of their own headman. Having concluded that the herdboys resisted the impounding of their cattle and stood infront of them, the next question is whether they threw stones at t he accused and put his life in danger. It seems to me to be probable that some stones were thrown at the accused and the cattle in o r d er to force them to go in the opposite d i r e c t i o n. I am saying some stones because I do not agree with the defence witnesses that a group of more than twenty herdboys were involved in the stone throwing. Basotho herdboys learn the art of throwing stones at an early age and it is altogether impossible that they can miss a target just about fifteen paces from them. In fact the accused says that at one stage P. W.3 was about five paces from him. I do not believe that P. W.3 could miss him at that distance. If m o re than twenty /8 - 8- herdboys of the ages of the Crown witnesses were involved in the throwing of stones, I am sure that the accused would have been hit several times and would have died. I am convinced that only three herdboys were involved in the throwing of stones. Was the life of the accused in danger at any time during the stone throwing? I do not think so. The accused dismounted, took out a cartridge from his pocket, cocked the shotgun, loaded it and then fired in the air, as he alleges, but I am convinced that he fired at the herdboys but missed them. He loaded the shotgun for the second time and the third time. The loading of the shotgun is a fairly long process and the accused could not have had the chance to load the gun under the circumstances he wants this Court to believe. According to him the attack by this group of h e r d b o ys was so fierce that he thought he was going to die. Under the circumstances he has described he would not have had the chance to load the shotgun. He was able to load it three times because the stone-throwing must have been very sporadic. The Crown witnesses testified that when the deceased was shot they were already walking away and had their backs towards the accused. I think this allegation is confirmed by the fact that the entry wound was on the back of the right shoulder and the exit wound was on the left scapula region. P. W.4 Trooper Makhoali examined the dead body at the scene of the crime and established which between the two wounds was the exit wound. It was, as usual, much bigger than the entry wound. His evidence on this point was not challenged by the defence and I accepted it. /9 -9- In the view that I take the deceased was shot from behind and was not facing the accused. He w a s, therefore, not throwing any stones at the accused at the time he was shot. He was not posing any danger to the accused. The accused alleges that he does not know how he shot the deceased because of the fierce stone-throwing at him by a group of herdboys. He is telling a pack of lies about the fierce attack because he would not have escaped unscathed. A stone in the hand of a Mosotho herdboy is a very dangerous weapon and usually directed at its target with a very high degree of precision. The evidence and the indications are that there might have been sporadic throwing of stones at the beginning,but when the shooting down of the deceased occurred, it had completely stopped and the deceased and his companions were walking away with their backs towards the accused. Miss Tau, counsel for the accused, submitted that the accused was not just under pressure of the attack but he did not have any other avenues open to him to ward off the attack. He is an old man much older than the Crown witnesses w ho were involved and the deceased. He could therefore never have been able to outrun them. Moreover, he was attacked with stones, and therefore he could not have been able to run and at the same time side track the stones. I think this submission is based on the wrong assumption that the defence evidence is correct that the accused was under pressure of a fierce attack. I have already rejected that evidence. She referred to The Law of South Africa, 1981, Vol. c at page 39 where the learned authors say : /10 - 1 0- "If it is necessary to use force to repel an unlawful attack, t he measure of force must be reasonable in the circumstances. The defence must merely be deterrent and not retributive - the criterion is reasonableness and not whether defence w as commensurate with the threatened harm." 1 entirely agree with t he above statement of the law and it seems to me that in t he present case the defence was retributive because the accused shot a person w ho w as no longer facing him or throwing stones at him. I have already found that at the beginning of t he encounter the deceased and his companions probably threw stones at the accused and the catle in an attempt to stop him from impounding them. However, at the time he shot the deceased the throwing of stones had stopped. The deceased and his companions were either running or walking away as a result of the first two shots w h i c h, according to t h e ir version, narrowly m i s s ed them. I am of t he view that at the time he shot the deceased, the accused was not in danger of his life or serious bodily injuries because the attack had stopped. In Hope v. Rex 1917 W. P. D. 146 Broome, J. said: "I should be the last to scrutinize t oo closely any retaliatory action in the presence of threatened danger where an assailant had raised his weapon with the intention of committing an assault. It would of course be absurd to suggest that one must w a it until the blow has fallen before taking retaliatory m e a s u r e s, and if, in the present c a s e, there had been nothing more than an assault upon the aggressor there would have been good ground f or an a p p e a l. This assault however is justify upon the ground of self defence; but t he law is that if t he person assaulted does not attack t he aggressor until /11 - 1- the affray is o v e r, or until his assailant is running away, that is not self defence such as would e x c u se an" assault. Nothing more m u st be done than is necessary f or the defence of the person or property. counter attack is e x c e s s i v e, or greater than is necessary for m e re self defence, or is m a de after all d a n g er is over, there would be no justification." (My u n d e r l i n i n g ). If the I find the accused guilty of m u r d e r. My assessors a g r e e. J. L. KHEOLA JUDGE 26th October, 1990. -12- E X T E N U A T I NG C I R C U M S T A N C ES 1. T h e re w as no p r e m e d i t a t i on - t he a c c u s ed found the deceased and his companions grazing cattle at the reserved pasture by chance because he was on his way to Loting where his cow had been reported missing. 2. There was provocation - although the provocation was not a defence to reduce murder to culpable homicide, I think it can be taken into account as an extenuating c i r c u m s t a n c e s; I found as a fact that at the beginning of the fight the deceased and his companions did throw stones at the accused. I c o me to the conclusion that there are extenuating circumstances. SENTENCE:- Six (6) y e a r s' imprisonment. Disposal of the shotgun:- It is forfeited to the Crown. J. L. KHEOLA JUDGE 6th October, 1990. For Crown For Defence - - M r. Mokhobo Miss Tau.