R v Seate (CRI/T 11 of 96) [2000] LSCA 16 (9 March 2000)

1 C R I / T / 1 1 / 96 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: R EX a nd P H A K I SO S E A TE J U D G M E NT For Director of Public Prosecutions : M r. L. Q h o m a n e / M i ss N. N k u / M i ss L. M a q u tu For Accused O ne : M r. M . E. Teele D e l i v e r ed by T he H o n o u r a b le M r. Justice T. M o n a p a t hi on t he 9th d ay of M a r ch 2 0 00 P h a k i so S e a te ( Accused) a nd o ne M a t u m e lo L e r a ta (A2) h ad b e en charged with the m u r d er of K h a h l oe N t l h o k o t si (deceased). Accused joined issue with the C r o w n. So did his Co-accused w ho w as discharged at the end of the C r o wn case. T he Accused gave evidence in his o wn defence after the close of the C r o wn case. T he m a in issue remained to be as to whether the C r o wn h ad proved its case b e y o nd a reasonable doubt. It b e c a me related with the defence's contention that the assault, w h i ch the Accused admitted, w as not the cause of the deceased's death. It w as alleged that u p on or about the 1st d ay of April 1 9 94 at or near Ha Makoatlane in the district of Berea, the said Accused did unlawfully a nd intentionally kill the deceased. T he post m o r t em report s h o w ed that death of the deceased h ad been due to "fracture of scalp with brain h e m o r r a h a gy (sub-dual a nd intra cerebral haemorragy) " H e m o r r a g y" should have m e a nt H a e m o r r h a g e ." A Preparatory Examination (P. E.) h ad b e en held at w h i ch the following witnesses m a de depositions P. W.1 Lefu Ntsala, P. W.2 T u m e lo Lerata, P . W .3 K h u n o n g, P . W .4 M o n a h e ng Ntsokotsi, P . W. 5 Paolosi Ntsokotsi, P . W .6 M o r a t u o a ne Ntsokotsi, P . W .7 Selai Moeketsi, P. W.8 N o. 6 4 45 D / L / S gt M o n y e ke of the R o y al Lesotho M o u n t ed Police. T he depositions of P . W .4 a nd P. W.7 at the P. E. were admitted as evidence and read into the recording machine. T he admitted evidence of M o n a h e ng Ntsokolsi the elder brother of the deceased w as that it w as on a Easter Friday w h en he left with the deceased to the place of o ne Pheko. T h ey h ad gone to drink beer. T h e re w as drinking a nd dancing at that place. Deceased h a p p e n ed to dance with A 2. T he witness b e c a me suspicious as he saw deceased and A2 hugging a nd holding each other's waists in their dancing m o v e m e n t s. He thought they were in love. T he witness then w e nt to A2 and asked her w hy she could have a love affair with deceased w ho w as so young. A2 responded by saying that deceased w as merely her son. T he reply suggested a denial a nd that the deceased w as too y o u ng to be her lover. This issue of the love affair w as raised with A2 about three times. In the end the witness no longer saw the deceased a nd A 2. He testified that he did not search for t h e m. It did not s e em that the issue of the love affair w as raised with both the deceased a nd A 2. N or that this love affair w as proved except the witness' m e re suspicion. It could not be established f r om the evidence that A2 a nd the deceased left together. It w as submitted that it could only be a matter of speculation. T he witness testified that he w e nt to sleep at a different place f r om w h e re the deceased h ad normally slept. On the following d ay he received a report f r om his father that the deceased h ad b e en assaulted. W h en he got to their h o me he found that the deceased h ad in fact b e en assaulted. He w as injured a nd w as unable to talk. P. W.7's evidence w as admitted. He w as the person w ho identified the deceased to the doctor before the latter could perform a post-mortem examination on the b o dy of the deceased. T he deceased h ad b e en his cousin. T he post-mortem report w as admitted in terms of section 223(7) of the Criminal Procedure a nd Evidence A ct of 1981 since the doctor h ad left the country. T he p o s t m o r t em report spoke of an " o p e n ed w o u nd at the b a ck side of the h e ad (a c o m p o u nd fracture)." It h ad further reported of the cause of death as stated earlier in the judgment. Defence C o u n s el remarked that the report h ad said nothing about the skull a nd its contents. I thought a " c o m p o u nd fracture" m e a nt that at least the skull h ad b e en d a m a g ed or cracked. O ne of the points m a de by the Accused concerned the injuries found on the deceased. It w as that the doctor h ad not recorded the fact of the h a e m o r r h a ge in the space of the paragraph 10 of the post- m o r t em examination report form. It w as suggested that if it w as so it m e a nt that the report w as inaccurate as to the injuries a nd the cause of death. A b o ut the first aspect w as the contention that the absence of that report w as caused by the fact that the doctor h ad not o p e n ed the skull. T he evidence of P . W .5 Paolosi Ntsokotsi w as used as support for the contention that the doctor could not h a ve explored the inside of the skull to investigate the cause of death or the extent of the injury. T he witness said he s aw the deceased a nd m a de preparations for his burial. T he deceased's h e ad w as not sutured neither w as it held in a ny place with bandage. If the doctor h ad o p e n ed the skull as C o u n s el later argued the sutures or b a n d a ge w o u ld h a ve been seen. Counsel further argued that in the circumstances the C r o wn h ad failed to prove that the assault w as the cause of death. T he witness P W5 w as at his h o me late into the night a nd he h ad b e en asleep. He received a message that the deceased (his son) h ad b e en assaulted. He w as s h o wn a place w h e re he w as allegedly assaulted but later taken to the Chief's place w h i ch w as five h u n d r ed (500) metres a w ay w h en found. He w as leaning against the wall a nd in a sitting position. He said he w as assaulted a nd he w as feeling cold. T he witness e x a m i n ed the deceased. He found that he h ad an o p en w o u nd w h i ch w as slightly bleeding a b o ve the left eye a nd a swollen o ne at the back. T he witness said there w as a depression at the middle top of the head. He said he s aw in all three injuries. T he witness h o w e v er admitted that the examination he did could not have b e en a thorough o ne in the circumstance that is w hy he could speak of a swelling later a depression, three injuries a nd later two. He w as examining the deceased with the aid of a torch because it w as dark. T he witness said T a m po Ntsokotsi's vehicle w as found but it did not h a ve lights. It w as h o w e v er able to travel to the Chiefs place a nd carried the deceased to his h o me w h e re he remained overnight. T he witness said the deceased did not receive any further injuries until he was carried to the Q u e en Elizabeth II Hospital in Maseru by use of another vehicle which belonged to s o m e o ne w ho had gone to attend a church feast. Another vehicle except that one of T a m po h ad been found but there had been no driver or s o me such problem. T he deceased w as placed in [he ward 4 of the hospital. He had since the previous day been unable to speak. He looked hopeless. T he witness went h o me after the deceased w as admitted into hospital. T he witness said on arrival at his h o me he asked the Chief to call all those w ho had been involved in the assault of the deceased. A meeting was arranged at the Chiefs place w h e re the witness' brother, the chief and the Accused were present. T he Co-accused w as not present the meeting w as dispersed after the Accused w as confronted with the allegations of the assault on the deceased. On the following day a report w as received that the deceased h ad died. An arrangement was m a de by the witness to place the deceased in a mortuary following a letter from the Chief to the police. T he witness w as closely questioned about the inability of T a m p o, w ho w as a neighbour and relative of the deceased, to use his vehicle to carry the deceased to hospital that very night of his injury. This T a m p o 's vehicle as it w as suggested w as said to have been mechanically sound but without good lights. An impression w as sought to be created that since T a m po was a relative his inability to assist further was caused by a family disagreements. M o st probably there w as such a misunderstanding inasmuch as the witness called it a "family matter" but I w as not convinced that there was an outright refusal on the part of T a m p o. It w as clear on the evidence however that T a m po had been unwilling to use his vehicle because of bad lights. M r. Teele suggested that inasmuch as T a m po h ad driven to the chiefs place he might as well have risked travel to M a s e ru or T e y a t e y a n e ng Hospital. A d a m a nt as the witness w a s, I sensed that there w as m o re than m et the eye concerning the relations between the witness a nd T a m p o. Although m u ch w as m a de about this I did not see h ow it w as an intervening cause in the strict sense of novus actus interviniens even if T a m po has in truth refused or w as unwilling to assist. O ne suggestion w as that the witness w as reluctant to use T a m p o 's vehicle because T a m bo h ad suggested that the Accused should not be charged. T he witness w as also questioned about his unhappiness over the fact that his son h ad b e en a w ay f r om h o me that night. He denied h o w e v er that w h i p p ed his son. A point w as sought to be m a de that the deceased's father's reluctance to take deceased to hospital supported the inference that he h ad indeed w h i p p ed the deceased. P. W. 1 w as R o y al Lesotho M o u n t ed Police Officer N o. 6 4 45 M o n y e k e. He had been P W8 at the P E. In April 1 9 94 he received a report about the death of the deceased. As a result he w e nt to a mortuary w h e re he found the deceased's body. He observed a w o u nd a b o ve the left eye, another on the left ear, a bruise on the head a nd a swelling at the back. His investigation led h im to the Accused a nd his Co-accused w ho reported themselves at the Police Station w h e re they were charged after giving certain explanations. T h ey were placed under arrest. On the d ay of their arrest a timber stick w as brought by the deceased grandmother's M o r a t u o a ne Ntsokotsi. Accused contended that it w as the stick that he h ad used. T he stick w as kept at the Police Station. It w as later h a n d ed in at the P. E. but disappeared thereafter. U n d er cross examination by M r. Teele the witness w as m a de to recall exactly w h e re the alleged injury on the ear. He said he s aw about: three depressions, the biggest w h i ch w as in the m i d d le of the h e a d. He also r e m e m b e r ed seeing an o p en w o u n d. T he d e ad p e r s on he s aw w as identified to h i m. He therefore excluded a mistake of identifying of the b o dy e v en t h o u gh he testified that it w as Paulosi Ntsokotsi w ho identified the b o dy to h i m. It w as Paulosi the deceased's father w ho said he left for w o rk after the death of his son. He could n ot h a ve c o n f i r m ed identifying the deceased to the police. T he witness said he travelled to the deceased's village w h e re he m a de necessary investigations. On of the people he s p o ke to w as M o h l o u oa a nd Lerato K h u n o n g. It w as true that the witness could h a ve mistook the nature of the w o u nd on the deceased's ear despite that he h ad m a de recordings thereof in his n o t e b o o k. I h o w e v er did n ot observe the serious flaw that the defence s o u g ht the Court: to note. T h is did n ot m e an I b e c a me u n a w a re of the slight variations in the witness testimony. My c o n c e rn w as w h e t h er serious w o u nd that w as revealed on the h e ad of the deceased that could not h a ve b e en c a u s ed by a n y o ne other t h an the assault by the A c c u s e d. M o r a t u o a ne Ntsokotsi w ho w as PW 6 at the PE w as called in as PW 13. S he h ad b e en at her h o me during the Easter Friday night in the village of L e k o k o a n e ng w h e re the deceased w as assaulted. D e c e a s ed w as h er g r a nd child. S he got a report that night a b o ut the deceased w ho c a me in a vehicle a c c o m p a n i ed by his father. This w as after a report h ad b e en received of an assault on the deceased w ho h ad b e en lying s o m e w h e r e. A f ew of people h ad g o ne to ask T a m po assistance with his vehicle. T he witness testified that it w as not T a m p o 's vehicle b ut a n o t h er w h i ch b r o u g ht the deceased to his h o m e. T he vehicle h ad b e en brought f r om a neighbouring village. T a m p o 's vehicle h ad b e en said to h a ve h ad its l a m ps d a m a g ed by his son but it w as otherwise in g o od condition. A mattress b e d d i ng w as m a de for deceased w ho arrived d r e n c h ed in water. He h ad a w o u nd on the left eye. He w as unable to speak. He w as not immediately taken to a doctor because transport w as not available that night. T he evidence of PW 3 Lerato K h u n o ng a nd PW 2 T u m e lo Lerata w e re to the effect that the deceased w as struck a b l ow with a timber stick a nd he fell d o w n. T h at he w as subsequently belaboured on the g r o u nd PW 3 h ad b e en at the church feast. He h ad g o ne out w h en he h e a rd screams f r om A 2. It w as a b o ut sixty metres f r om w h e re the witness w a s. T o g e t h er with P W2 a nd o ne Ntsala they r u s h ed to w h e re the screams c a me from. T h ey then found A 1 , A2 a nd other people. It w as then that he f o u nd A c c u s ed a nd deceased struggling over a stick. It a p p e a r ed that the stick got loose a nd A c c u s ed w as able to hit the deceased w ho fell d o w n. At the time A2 h ad b e en throwing stones a nd h ad b e en missing. S he w as drunk. S he w as the s a me lady w ho h ad b e en d a n c i ng with the deceased, o ne person intervened a nd the witness w e nt a w ay because he w as scarred. He later heard that the deceased w as hospitalized. T h is witness a p p e a r ed not to k n ow the b a c k g r o u nd of the fight. He c a me into the picture w h en already there w as that struggle b e t w e en the deceased a nd the accused. P. W.2's evidence did not differ materially f r om that of P W3 in that they could h a ve arrived at the s a me time with the latter after hearing the screams himself. He said he f o u nd A c c u s ed a nd the deceased quarrelling over a stick. This stick the A c c u s ed ultimately wrested off f r om the deceased w h e r e u p on he hit h im several times with it. I did n ot see the evidence of the witness to differ very m u ch f r om that of PW 3 except that m u ch w as m a de in the cross e x a m i n a t i on a b o ut the desire of the witness to protect his m o t h er w ho h ad b e en d r u nk a nd involved in shouts of a d r u nk person. In a similar w ay he f o u nd deceased a nd A c c u s ed quarrelling over a stick until the beating w h i ch the A c c u s ed administered on the deceased. He said at the time no o ne w as attempting to intervene. T he A c c u s ed gave evidence in his defence. He h ad b e en at a drinking place on the d ay of the d ay of the fight w h e re he took a b o ut three quarts of beer. He left at a b o ut seven at this place. He w as going to his o wn h o m e. He w as alone. He w e nt via o ne Pheko's cafe w h i ch w as also a drinking place in the village. T h e re he b o u g ht another drink. At Pheko's place he f o u nd A 2, the deceased a nd a n o t h er person. If I recall well deceased's brother w as present. T h e re w as drinking, m u s ic a nd dancing. A2 also partook of Accused's beer. A2 w a n t ed to leave with A c c u s ed because it w as dark. T h ey w e nt together t o w a r ds the village of Ha M a k o a t l a n e. He said he w as not feeling d r u nk but w as "just nice." A2 w as that lady a b o ut w h o se d a n c i ng with the deceased a nd the suspected love affair the deceased h ad c o m p l a i n e d. W h en they w e re on their w ay he h e a rd the s o u nd of stones t h r o wn at t h em a nd hitting a pole. T h ey hid against a house. T he stone t h r o w i ng continued e v en w h en they h ad g o ne into a passage. T h e re he b e c a me a w a re of the identity of the stone thrower. It w as the deceased. He hit with a stick a nd fell deceased d o w n. At that lime people h ad appeared. He denied that he belaboured the deceased w ho h ad fallen d o w n. At chat time A2 w as m a k i ng a lot of a n g ry noise a nd at the s a me time w as throwing stones in response to that initial stone thrower. S he w as d r u nk a nd hitting deceased with stones. S he w as only able to stop w h en o ne of the b o ys (presumably her son) took her a w a y. T he A c c u s ed c o n f i r m ed that T u m e lo w as o ne of the b o ys w ho arrived at the scene. A c c u s ed said he h ad n e v er i n t e n d ed to injure n or kill the deceased w ho he h ad m et by c h a n ce w h en he w as going a w ay to his h o m e. I did n ot find a ny reason to disbelieve PW 2 a nd P W3 a b o ut the incident of the A c c u s ed h a v i ng grappled with the deceased for the stick. T he denial by A c c u s ed of this incident w as unconvincing. O ne of the b o ys w as sent to call the chief. T he chief arrived. T h en the deceased w as asked w h at he h ad d o ne to receive an assault. He said he h ad raped A 2. T h at it w as A c c u s ed a nd A2 w ho h ad assaulted h i m. T he chief t h en left. After s o me time the deceased w as r e m o v ed to the chief's place w h e re his father a nd brother arrived. T h e re w as a reference to T a m p o 's presence. Deceased's father w as angry with deceased r e m a r k ed a b o ut that he h ad often w a r n ed the deceased not to go a b o ut loose a b o ut night. T he r e m a r ks h ad culminated with deceased's father w h i p p i ng deceased with a s j a m b o k. T h is w as stopped by intervention of the chief a nd T a m p o. D e c e a s ed then reported that he h ad b e en assaulted by A c c u s ed a nd A 2. I h a ve already m a de certain findings including this o ne about the m e d i c al report and submission m a de by the defence. A nd the circumstances surrounding the events as after the injuring of the deceased a nd those concerning the p r o b l e ms about T a m p o 's transport, his vehicle a nd its condition. I concluded m at there m u st h a ve b e en a lot of delay in sending the d e c e a s ed to hospital. This delay w as caused by so m a ny things, it included the p r o b l em of the misunderstanding b e t w e en deceased's father a nd T a m p o. T h at is w hy in response to o ne of the question concerning relationship b e t w e en the deceased's father a nd T a m p o, the d e c e a s e d 's father replied that it w as a family matter. I d id n ot think that t h o se c i r c u m s t a n c es (of the d e l a y) w e re an intervening event or a separate c a u se of d e a th of the nature o ff novus actus interveniens as we understand it. I c o n c l u d ed that that injury w h i ch c a u s ed the facture of the skull a nd [he h a e m o r r h a ge w as the c a u se of d e a th a nd it w as c a u s ed by that t i m b er stick w h i ch this a c c u s ed a d m i t t ed to h a ve u s ed in the assault on the d e c e a s e d. T h e re w e re of c o u r se a f ew injuries that the d o c t or described, e v en t h o se that w e re described by the w i t n e s s es t h e m s e l v es including the police officer. T h e se w e re m i n or injuries. I am n ot a b le to s ay that the d e c e a s e d 's father or A2 c o u ld h a ve c a u s ed these m i n or injuries. To r e m i nd y ou A2 w as ' M a t u m e l o. T he a c c u s ed h i m s e lf h as g i v en a statement u n d er o a th in his o wn d e f e n c e. T he A c c u s ed d e s c r i b ed t h o se c i r c u m s t a n c es b e g i n n i ng f r om the t i me w h en he visited o ne drinking p l a c e, if I recall w e ll it w as P h e k o 's cafe. T h e re w as drinking of beers. At the first p l a ce he t o ok s o me three b e e r s, a c c o r d i ng to h i m. It m u st h a ve b e en at this s e c o nd place w h e re he t o ok a n o t h er b e er a nd w h e re he m et ' M a t u m e lo a nd others, including the d e c e a s e d. He s a ys after that drink he h ad a b o ut 7 . 0 0 pm or w as it 9 . 0 0 p m, w h en he r e s o l v ed that he w as g o i ng b a ck to his h o m e. It w as t h en that ' M a t u m e lo a s k ed the a c c u s ed to a c c o m p a ny h er b e c a u se it w as dark. It w as shortly after their departure that there w as that b o ut of s t o ne t h r o w i n g, s o me stones hitting against poles, things like that, a nd a c c u s ed hiding at the b a ck of h o u s es to r un a w ay a nd to h i de h i m s e lf f r om these stones. Eventually at the b a ck of the h o u s es of w as a p a s s a ge of w h i ch this a c c u s ed c a me to realise w ho the t h r o w er of these stones w a s. He b e g an to realise m at it w as the d e c e a s e d. He m en describes his acts w h i ch constituted in a t t e m pt to d e f e nd h i m s e lf against this deceased a nd that he ultimately assaulted the deceased in self-defence. M e a n i ng that he admitted to having assaulted this deceased with the timber stick. If I recall it m u st h a ve b e en the timber stick that the accused said belonged to the deceased. I do not think this accused is to be believed. W h at I believe h a p p e n ed is that there w as a stage w h e re this accused a nd the deceased grappled a nd w e re fighting for the stick a nd this is the incident that described exactly by P W2 a nd P W 3. I did not see w hy I should not believe P W2 a nd P W3 in describing these circumstances starting f r om w h en there w as a fighting over the stick, w h en eventually the accused w as able to w in the stick a nd thereupon assaulted the deceased. This appears to be w h at happened. It w as correct that these t wo witnesses m ay not h a ve b e en unable to see w h at h a p p e n ed as before they c a me into scene. I w as not able to speculate as to w h at h a p p e n ed before the grappling over the stick except w h at the A c c u s ed said. B ut w h at w as clear w as that there w as a struggle over the stick b e t w e en the t wo gentleman. T he accused wrested off the stick a nd thereupon beat up the deceased w h en he could have easily left the deceased. At the s a me time h e e d ed the warning against adopting an armchair approach. I am not able to say that this killing by the accused w as intentional. At the s a me time the evidence that is on record does not indicate in a n y w ay that the accused w as acting in self-defence. There is a lot of confusion concerning the involvement of ' M a t u m e l o, this aspect of her having b e en seen throwing stones in a d r u n k en activity. At the s a me time there is this other description of events, including that the deceased's father having w h i p p ed the deceased with a sjambok. T he confusion even starts from that time w h en the deceased w as seen dancing w i th ' M a t u m e lo ( A 2 ), in a w ay that b r o u g ht a b o ut that c o m p l a in that I h a ve already s p o k en a b o ut in my j u d g e m e nt a nd the suspicion being that the d e c e a s ed w as in love w i th A 2. It is clear that this m a t t er of l o ve affairs b e t w e en ' M a t u m e lo s u s p e n d ed love affair b e t w e en ' M a t u m e lo a nd the d e c e a s ed a nd d r u n k e n n e ss h ad a p l a ce in the c o n f u s i on that we h a ve here. T h is included this c o n f u s i on as to w h e re s u d d e n ly did the d e c e a s ed follow this a c c u s ed after the a c c u s ed h ad g o ne o ut of the s h e b e en w i th ' M a t u m e l o. W hy did that y o u ng m an f o l l ow up the a c c u s ed a nd A 2? W hy did that h a p p e n? W hy this c o i n c i d e n ce that the d e c e a s ed h ad b e en s e en a c c o m p a n y i ng A 2, then there w as a fight b e t w e en A c c u s ed a nd d e c e a s e d. I r e m a i n ed c o n v i n c ed that there is a lot that s h o u ld h a ve b e en explained, m o re especially m o re e v i d e n ce s e e k i ng to explain the c i r c u m s t a n c es as b e f o re the d e c e a s ed b e i ng s e en w i th the a c c u s ed fighting o v er the stick. All in all I w o u ld find this a c c u s ed guilty of unintentional killing of the d e c e a s e d. He killed h im negligently. P O KI v R EX 1 9 85 - 1 9 89 L AC 29 h ad b e en an appeal f r om the H i gh C o u rt on conviction for m u r d e r. T he appellants h ad s t a b b ed the d e c e a s ed w i th k n i v es on vulnerable parts of the b o d y. T h at is w hy the H i gh C o u rt h ad c o n c l u d ed that they h ad " a c t ed recklessly". M a h o m ed JA f o u nd against this c o n c l u s i on a nd said at p a ge 3 1 - 32 in a l m o st similar vein to the instant matter: " T he material e v i d e n ce pertaining to the details of the struggle b e t w e en the d e c e a s ed a nd the appellants e m a n a te f r om the e v i d e n ce of the appellants t h e m s e l v e s. T h at e v i d e n ce points to a swift escalation of e v e n ts following u p on the initial stone t h r o w i ng by the d e c e a s e d. T he appellants w e re clearly angry. T he c i r c u m s t a n c es do n ot s u p p o rt a ny inference of deliberation, or selection of target areas, w h i ch m i g ht h a ve b e en quite u n p l a n n e d. In the c i r c u m s t a n c e s, I h a ve a d o u bt as to w h e t h er it c an safely be said that the A p p e l l a n ts h ad the requisite m e ns r ea to kill the d e c e a s e d. T he C r o wn h as n ot in a ny v i ew d i s c h a r g ed the o n us of p r o v i ng this e l e m e nt b e y o nd a r e a s o n a b le d o u b t. It accordingly f o l l o ws that the A p p e l l a n ts s h o u ld h a ve b e en f o u nd guilty of C u l p a b le H o m i c i d e ." I w as also m i n d f ul of the w a r n i n gs of the courts a b o ut h ow a j u d ge s h o u ld go a b o ut a d e f e n ce story, that there w as no n e ed to believe e v e ry detail of it, that it w as sufficient if I t h o u g ht that there w as reasonable possibility that it m ay be true. S ee R v M 1 9 46 AD 1 0 2 7 at 1 0 33 per D a v is A J A. A c c u s e d 's version w as false b e y o nd a reasonable d o u b t. My finding w as that there h ad b e en n o t h i ng by w ay of w i th self d e f e n ce on the part of the A c c u s e d. R a t h er c i r c u m s t a n c es w e re as s e en by P W2 a nd P W3 that A c c u s ed e n d ed up assaulting that y o u ng m an as after they w e re s e en fighting o v er the timber stick. O ne c o u ld n ot s p e ak of there h a v i ng b e en c i r c u m s t a n c es strictly s p e a k i ng suggesting self-defence on the part of the A c c u s e d. A nd m o st importantly w h en this assault did take place there w e re p e o p le already a s s e m b l ed at the s c e n e. T he A c c u s ed c o u ld h a ve ably m o v ed a w ay f r om the y o u ng m a n. I did n ot see w h at d a n g e r, w h at real threat there w as that c o u ld h a ve s u p p o r t ed the c l a im that A c c u s ed w as acting in d e f e n c e. T he A c c u s ed w as therefore f o u nd guilty of C u l p a b le H o m i c i d e, h a v i ng killed K h a h l oe N t s o k o t si in a negligent act. My assessors agreed. T. M O N A P A T HI Judge S E N T E N CE On the 13th day of M a r ch 2 0 00 I sentenced the A c c u s ed to a period of i m p r i s o n m e nt of four ( 4) y e a rs w i t h o ut the option of a fine. W h en A c c u s e d 's C o u n s el a d d r e s s ed the C o u rt a nd a s k ed for a lenient sentence I h ad already n o t ed that the A c c u s ed h ad m e r e ly killed t h r o u gh n e g l i g e n ce n ot intention. I further n o t ed the attendant c i r c u m s t a n c es of d r u n k n e ss stone t h r o w i n g, the grappling for the stick a nd w h at I s u s p e c t ed to h a ve b e en jealousy over A2. It w as just a suspicion. T he C o u rt w as told that the A c c u s ed h as t wo d e p e n d e nt children of o ne b e i ng eight y e a rs of a ge a nd they b e i ng in S t a n d a rd S ix a nd S t a n d a rd S e v en classes, at school, respectively. A c c u s ed also h ad a w i fe w ho w as a h o u s e w i f e. A ll h ad d e p e n d ed on the A c c u s ed a nd w o u ld suffer hardships if the A c c u s ed w as s e n t e n c ed to a t e rm of i m p r i s o n m e n t. T he A c c u s ed h ad already spent t wo ( 2) m o n t hs in prison awaiting trial in this case w h i ch h as t a k en close to six (6) y e a rs to c o m p l e t i o n. It w as in 1 9 94 w h en he w as in prison. H a v i ng w o r k ed in S o u th Africa, he h as lost his e m p l o y m e nt a nd benefits. I n o t ed that the d e c e a s ed w as certainly a y o u ng m an w ho h ad no d e p e n d a n t s. B ut his life h as b e en lost a nd he will not return to this w o r l d. T he d e a th of a h u m an b e i ng r e m a i ns a serious m a t t er to his relatives, his c o m m u n i ty a nd to the state. T h at is w hy p u n i s h m e nt for s u ch a c r i me o u g ht to be realistic a nd n ot s h o c k i n g ly lenient. If n ot there will be no v a l ue in j u d g m e n ts a nd s e n t e n c es a nd the C o u r ts will be b r o u g ht into disrepute. It did n ot m a t t er w h e t h er an a c c u s ed w as a first offender. It h as n e v er b e en a static or i m m u t a b le rule that a first o f f e n d er s h o u ld n ot be p u n i s h ed to i m p r i s o n m e n t. It d e p e n ds on the c i r c u m s t a n c es of e a ch case. It is often strongly c o n t e n d ed that s e n d i ng a m an to prison p u ts h im at the risk of c o n t a m i n a t i on resulting f r om his contact therein w i th difficult characters. It c an n e v er a l w a ys be so. A m o d em prison is i n t e n d ed for rehabilitation. T he e l e m e nt of deterrence c a n n ot a l w a ys be lost in the s e n t e n ce of i m p r i s o n m e n t. T he w i s d om a nd practicality of the p u n i s h m e nt h as h o w e v er m a de it to r e m a in in the statute b o o k. I h ad c o n s i d e r ed all the a s p e c ts a nd s u b m i s s i o ns t o w a r ds the s e n t e n ce in this matter. My o r d er w as to s e nd the A c c u s ed to i m p r i s o n m e nt for four (4) y e a rs w i t h o ut option of a fine. T. M o n a p a t hi J u d ge 13th M a r c h, 2 0 00