R v Qebiso (CRI/T 22 of 99) [2000] LSCA 144 (1 September 2000)

CRI/T/22/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- R EX vs T H A BO Q E B I SO J U D G M E NT Delivered by the H o n o u r a b le Mr Justice S. N. Peete on the 1st S e p t e m b e r, 2 0 00 T he accused, a 75 year old T h e m bu m an of P h a m o ng in the M o h a l e 's H o ek district appeared before this court facing a charge of m u r d er of his s on it being alleged that on the 6th day N o v e m b er 1 9 93 a nd at or near Ha T e b o ho in the district of M o h a l e 's H o e k, the accused did unlawfully a nd intentionally kill W a n g a b a n tu Q e b i s o. T he w e a p on used w as a m o h l o a re (olive) stick. T he m a in witness for the c r o wn w as Kulegile Q e b i so P . W . 2, deceased's y o u n g er brother, w ho told the court that on the e v e n i ng of the 6th d ay of N o v e m b er he a nd the deceased w e re preparing to go to b ed in a rondavel o w n ed by the accused. T he deceased appeared d r u nk as he h ad b e en to a " l e t s e m a" ( c o m m u n al p l o u g h i n g) on that day. T he accused then entered a nd d e m a n d ed tobacco f r om the d e c e a s ed w ho replied he h ad n o n e. T he accused also appeared d r u n k; he then w e nt out a nd s o on returned carrying a " m o h l o a r e" stick a nd again d e m a n d ed t o b a c co f r om the deceased w ho again said he h ad n o n e. T he accused then struck the d e c e a s ed on the n e ck as the latter w as b e n d i ng d o w n. "It w as not a h e a vy b l o w" he said. T he deceased then fell d o wn after a little while. A c c o r d i ng to h im there w as no fight b e t w e en the t w o. W h en the accused c a me in again, P . W .2 says he w a r n ed h im " y ou will kill this person". T he deceased w as at the time snoring or groaning hard a nd could not talk. He says he w e nt to a w a k en his uncle Eric A d o n si a nd his m o t h er w ho having e x a m i n ed the deceased left saying he could c o me a nd see h im in the m o r n i n g. In the m o r n i ng he says he left the deceased still snoring; he left for the veld to attend to his herd. In the evening the deceased w as brought b a ck f r om the clinic already dead. U n d er cross examination by p ro d eo counsel Mr K h a u o e, this witness insisted that he also h ad assisted in the " l e t s e m a" p l o u g h i ng at M o c h o k o c h o k o 's a nd that Challa's field h ad already b e en planted seed. He admitted that the accused w as o n ce a m i ne w o r k er a nd that he u s ed to remit m o n ey h o me to support t h em all. He denied that the d e c e a s ed ever forcibly d e m a n d ed m o n ey f o rm their m o t h er or that he e v en b r o ke the tin-trunk in the process. He further denied that before the a c c u s ed struck the deceased w i th the stick, the accused h ad remonstrated with the deceased over Challa's field. He insisted that the accused only d e m a n d ed tobacco f r om the deceased w ho u s ed to s m o ke e v en d a g g a. He admitted that the deceased used to be very violent a nd wild at times. T he evidence of M a n g o e j a ne Q o n o k e lo w as to the effect that he w as a close relative to the accused t h o u gh their villages w e re apart. He told the court that the deceased w as the eldest s on of the accused but w as a l w a ys c h e e ky a nd disrespectful. He told the court that on that d ay he m et the a c c u s ed w ho reported to h im that he w as f r om reporting the assault to the police, a nd that w h en he got h o me he f o u nd the deceased already dead. U n d er cross examination, he told the court that the a c c u s ed h ad explained that it w as the deceased w ho b e g an the trouble by c o m i ng into his hut. T he defence then admitted the depositions of T r o o p er K e l e pa w ho attended the scene of the c r i me a nd e x a m i n ed the corpse a nd observed a w o u nd on the head. He then transported the b o dy to the g o v e r n m e nt m o r t u a ry in M o h a l e 's H o e k. T r o o p er R a m e t s e 's deposition w as also admitted a nd s h o w ed that the a c c u s ed arrived at P h a m o ng Police Station a nd surrendered himself and also h a n d ed in a stick. T he postmortem examination report w as also admitted. It s h o w ed that the cause of death w as "fracture of the right temporal b o ne causing epidural h a e m a t o m a ." All these w e re read into the m a c h i ne and formed part of the record. T he c r o wn then closed its case indicating that it n ow supported a lesser charge of culpable homicide. In this regard, I can only say the accused having formally pleaded not guilty to the m a in charge the matter w as entirely in the h a n ds of the court. T he accused in giving his evidence informed the court that he w as born on the 8th M ay 1925 and w as a T h e m bu peasant farmer living at P h a m o ng in the M o h a l e 's H o e k. He w as a m i ne worker till he w as retired w h en his shoulder got dislocated. T he deceased w as his eldest son w ho also used to w o rk in the m i n es but w as then retrenched. He told the court that he used to remit m o n ey to his wife for family upkeep. He told the court that there existed b ad blood b e t w e en himself a nd the deceased and that the deceased used to drink liquor a nd s m o ke dagga; he once received a report that the deceased had forcibly d e m a n d ed m o n ey from his mother and had broken a tin-trunk in the process. He w as a disobedient y o u ng m an w ho always d e m a n d ed m o n ey for satisfy his gluttonous needs. He w as of tall physique and w as a feared "Goliath" in the village. T he deceased and o ne Shalla w e re on very g o od terms and used to do share cropping. Despite his orders that Shalla's field should never be ploughed with his cattle, the deceased persisted though. He says that he had h o w e v er permitted Shalla's field to be planted seed only to placate his son. He told the court that on the 6th M ay he h ad joined the " l e t s e m a" ploughing at M o c h o k o c h o k o 's field a nd h ad u n s p a n n ed at about 11 a m. as they w e re going to the chief's court to attend a meeting. He then s aw the deceased a nd his friend Shalla in c o m p a ny and looking very drunk. W h at a n n o y ed h im w as the fact that he h ad noticed that the field of Shalla h ad not been planted seed. At M o c h o k o c h o k o 's hut they w e re given food and o ne tin of Sesotho beer. He retired a nd w e nt h o me at about 9 p m. He w as carrying his m o h l o a re stick as usu. On arriving at h o me he entered the rondavel occupied by his t wo sons. It w as open. He w e nt in and inquired from the deceased " W a n g a b a n t u, guteni u n ga ya ga planta etsimo ea lo Shalla?" - " W a n g a b a n tu w hy have y ou not planted seed in Shalla's field?" To w h i ch deceased replied "I w o u ld never go there as there w e re people planting." T he accused then said "It is better that y ou leave my house." D e c e a s ed retorted "This is my h o me ...you are the o ne to go". A c c u s ed says the deceased then bent d o wn to grab his stick. Sensing danger, he struck the deceased pre-emptively on the neck. He then left the house. He says he did not intend to kill his son. A n s w e r: Question: A n s w e r: Question: A n s w e r: Question: I w o u ld h a ve raised an alarm. W h en y ou left w e re y ou a w a re he w as injured? If y ou s aw he w as injured w h at w o u ld y ou h a ve d o n e? N o. D id y ou intend to injure h i m? N o. He says that on the m o r n i ng of the following d ay he w e nt into the rondavel a nd found out that the deceased had just passed a w a y. He then raised alarm a nd w e nt to the chief and P h a m o ng Police to report. He says he w as arrested on the 9th N o v e m b er 1 9 93 and w as refused permission to attend the funeral of his son. U n d er cross examination, he described vividly h ow b ad the relations b e t w e en h im and his son were. He w as even afraid of him. He says he struck the deceased because the Shalla affair had a n n o y ed h im and he struck h im w h en he tried to raise his stick. He sought to explain that his son P . W .2 h ad b e en coached by Challa a nd his colleagues to d e ny the altercation over Shalla's field. T he defence then closed its case. T he court finds that as the concession that evidence did not support a charge of m u r d er w as correctly m a de by Mr S e m o ko for the c r o w n, the issue at this trial then is whether the c r o wn has proven the charge of culpable homicide b e y o nd a reasonable doubt or whether the version of the accused m ay reasonably possibly true. In the case of M o s h e s ha vs R ex - 1 9 76 L LR 47 it w as held by M o f o k e ng J that w h e re a court is faced - as is the case presently - with t wo conflicting stories, it m u st satisfy itself that the story of the party on w h om the o n us rests is true a nd the other false; and that the judicial officer m u st bear in m i nd the cautionary rule applicable to the evidence of a single evidence and that w h e re a motive to mislead exists on the part of such witness, absence of corroborating evidence renders such evidence unsatisfactory a nd m ay result in a reasonable d o u bt as to the guilt of the accused. In this case the c r o wn case rests u p on the e v i d e n ce of a single e ye witness ( P . W . 2) a nd in the circumstances of the case it is not i m p r o b a b le that he c o u ld h a ve b e en c o a c h ed by Challa a nd his friends to testify adversely against his a g i ng father. I am of the v i ew that the story of the a c c u s ed h as a ring of truth b e c a u se it is rather i m p r o b a b le that he could h a ve attacked his s on for m e r e ly not giving h im tobacco. It is m o re probable that an altercation occurred p r o v o k i ng the a c c u s ed into striking his son; on the other h a nd I do not believe that the d e c e a s ed w as struck in self- defence, but u n d er provocation. In cases of culpable h o m i c i de the test is w h e t h er the a c c u s ed o u g ht reasonably to h a ve foreseen the possibility of the death of another resulting f r om his conduct. T he act m u st be b o th the factual a nd legal cause of the death. " T he a c c u s ed n e ed not foresee the actual m a n n er of his victim's death if the m a n n er of the victim's death is within the ordinary range of h u m an experience" - per M o f o k e ng J. in M o t j e k oa vs R ex 1 9 76 L LR 2 58 at 2 6 1; see also the j u d g m e nt of my Brother L e h o h la J in R ex vs M a f u p a ra - C R I / T / 1 9 / 96 dated 10th February 1 9 9 9. E v en according to the evidence of P . W .2 Kulegile Q e b i so the b l ow with a stick w as not a h e a vy o n e. In my v i ew the fact that death results f r om an act d o es not ipso facto necessarily m e an that the actor m u st be f o u nd guilty of culpable h o m i c i d e; it m u st be p r o v en that death w as foreseen as a possible result. S n y m an - Criminal L aw ( 1 9 9 5) - p 4 03 says- "It is, admittedly, usually easy to d r aw this conclusion in cases of assault resulting in death, yet there is no general p r e s u m p t i on that in every case of assault w h i ch results in death the p e r s on c o m m i t t i ng the assault o u g ht to h a ve foreseen that death m i g ht result a nd that he w as therefore negligent." In S v V an As - 1 9 76 (2) SA 9 21 the accused h ad slapped d e c e a s ed - a very fat m a n, w ho then lost his balance a nd fell, b e c a me u n c o n s c i o us a nd died. T he court f o u nd the accused guilty of c o m m on assault! In the case before court, I am of the v i ew that the c r o wn h as failed to p r o ve that the accused o u g ht to h a ve foreseen that the deceased's death w o u ld result w h en he struck only o n ce with the m o h l o a re stick. In other w o r d s, it is not the c o n s e q u e n ce of the act that is decisive but also the m e n t al culpability of the a c c u s ed at the time he c o m m i t t ed the act - see also R ex vs C h o b o k o a ne C R I / T / 9 0 / 99 per my Brother M a q u tu J (dated 16th A u g u st 2 0 0 0) w h e re the accused w as c h a r g ed w i th attempted m u r d er but w as ultimately f o u nd guilty of assault with intent to do grievous bodily h a r m. H a v i ng considered all the circumstances of this case, I hold the v i ew that the accused w as a n n o y ed by the c o n d u ct of the deceased on that d ay a nd by his m o st i m p u d e nt replies. He struck at h im only o n ce perhaps in a fit of anger but foreseeing that injury m i g ht result. I find h im guilty of assault w i th intent to do grievous bodily h a r m. C r o wn C o u n s e l: T he accused has no previous convictions. In mitigation: Mr K h a u oe points that the a c c u s ed is a first offender a nd an old m an of 75 years. H is act that resulted in death w as unfortunate but h ad fatal c o n s e q u e n c e s. P o s t p o n e m e nt or suspension of sentence w as appropriate. Sentence: H a v i ng considered the circumstances of this case a nd w h at w as said in mitigation the sentence of the court is as follows: - 1 year i m p r i s o n m e nt or M 5 0 0 . 00 w h o l ly s u s p e n d ed for a period of three years on condition that the accused is not d u r i ng that period f o u nd guilty of an offence involving injury to p e r s on for w h i ch he is sentenced to six m o n t hs or m o re without an option of a fine. S. N. P E E TE J U D GE For Crown : Mr Semoko Defence : Mr Khauoe