R v Thakaphala (CRI/T 41 of 92) [1998] LSCA 111 (30 November 1998)

CRI/T/41/92 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: R EX and S A L A NG T H A K A P H A LA A C C U S ED J U D G M E NT D e l i v e r ed by the H o n o u r a b le C h i ef Justice M r. Justice J . L . K h e o la on the 30th d ay of N o v e m b e r, 1 9 99 T he a c c u s ed is c h a r g ed w i th the m u r d er of o ne L e r a to K h i ba u p on or a b o ut the 24th d ay of A u g u s t, 1 9 9 1, a nd at or near M a t h u o a n e ng in the district of M o k h o t l o n g. He p l e a d ed not guilty. T he first witness called by the C r o wn w as o ne T h e r i so K h i b a. He testified that on the 24th August, 1991 he w as returning from Platberg. He w as accompanied by the accused. B o th of t h em w e re on horseback. It w as at night but there w as moonlight. As they approached their village they caught up with four m e n. He identified t h em as the deceased (Lerato Khiba), T e b o ho Khiba, Telang K h i ba and Kabelo Khiba. T he four m en w e re walking in the s a me direction as the accused and the witness. Lerata says that w h en they c a me to the four m en the latter left the path followed by h im and the accused because they feared that the horses w o u ld trample on t h em because they m o v ed too close to them. Immediately after they had passed the four m en Lerata noticed that the accused had remained behind and w as m o v i ng up to the path taken by the four m e n. He w as about twenty metres from him. T he accused bent d o wn and picked up something. Lerata did not see w h at the accused w as picking up. Thereafter the accused ordered the four m en to stop so that they could talk. T he accused then asked the deceased the following questions: " w hy do y ou m o ve around with my wife at night w h en I am a w ay from h o m e? W hy do y ou w e an my child the w h o le night? T he deceased answered and asked the accused whether he had ever caught h im with his wife. T he accused asked" "Did y ou w a nt me to catch y o u? T he deceased answered and said" "I thought y ou w e re going to ask me sensible things, y ou can go and ask those question to your grandmother. " K a b e lo w a r n ed the others to m o ve to o ne side because s o m e t h i ng w as about to h a p p e n. Lerata says that f r om the angry e x c h a n ge of w o r ds b e t w e en the a c c u s ed a nd the deceased he realized that a fight w as i m m i n e n t. He suddenly s aw o ne of the m en fall d o wn a nd the rest dispersed. He h ad not seen w h at caused h im to fall. He d i s m o u n t ed a nd rushed to the m an w ho h ad fallen. He f o u nd out that it w as the deceased. He tried to m a ke h im sit up. He called the m en w ho h ad dispersed to c o me a nd help him. T e b o ho a nd T e l a ng c a m e, K a b e lo a nd the accused did not c o me back. T h ey tried to help the deceased but in vain b e c a u se he could no longer walk. Lerata m o u n t ed his horse a nd the deceased w as lifted on to the horse a nd sat beside Lerata. He w as carried to his h o m e. On the following d ay the deceased w as taken to a clinic. He subsequently died but Lerata d o es not k n ow w h en he died. He h ad seen that he h ad a w o u nd on the chin a nd at the b a ck of the head. P . W .2 Malefetsane K h i ba w as at his h o me on the night of the 24th A u g u s t, 1 9 91 w h en the accused c a me to h im a nd reported that the deceased h ad b e en injured. He asked h im to go a nd help h i m. P . W .2 often helped injured people in the village because he learned first aid while he w as w o r k i ng in the m i n e s. He took his b a n d a g es a nd hurried to the h o me of the deceased. He h ad a w o u nd on the chin and another at the back of the head. He b a n d a g ed those injuries. On the following day the accused admitted that he had caused the injuries of the deceased. It is c o m m on cause that s o me pressure w as applied on h im before he m a de the admission. P. W.3 M o k h e t hi K h i ba w as at his h o me on the m o r n i ng of the 24th A u g u s t, 1991. A c c u s ed arrived there and w as in a fighting m o o d. A w o m an by the n a me of 'Manraile w as present w h en the accused arrived. He angrily asked her w hy she took his wife to m en w h en he is absent from his h o m e. 'Manraile denied that she ever did so. A c c u s ed slapped her and said that 'Malebusa told h im so. P . W .3 intervened and promised the accused that he w o u ld resolve the matter w h en he c a me back. He c a me back in the afternoon and did not confront the accused with 'Manraile. At night o ne 'Mantsepiseng c a me to h im and reported that the deceased had been injured and w as bleeding. He w e nt to the chiefs place a nd reported the matter. He w as at the chief's place on the following day w h en accused admitted that he inflicted the deceased's injuries. T he depositions o f P . W .2 Kabelo Khiba and P . W .6 Trooper B e k e b e ke at the preparatory examination were admitted by the defence and read into the record a nd form evidence in this case. Kabelo Khiba confirms w h at we already k n ow that after the a c c u s ed h ad accused the d e c e a s ed of being in love with his w i fe he heard the s o u nd of s o m e t h i ng hitting the deceased. He fell d o wn a nd w as subsequently taken to his h o m e. T he post m o r t em e x a m i n a t i on report w as also admitted as e v i d e n ce by the defence. A c c o r d i ng to it the cause of death w as epidural h a e m a t o ma left occiputal region. Externally there w as a laceration on the chin, b r o k en tooth a nd laceration occipital region. T h e re w as a fracture of the occipital skull. T he version of the accused is m o re or less the s a me with that of the C r o w n. He says that on the previous d ay w h en he arrived f r om Natal his kids w e re sitting alone in the h o u se because his wife w as not there. T h ey told h im that their m o t h er is a l w a ys out to Khalahali with the deceased a nd returns h o me at night. He felt very angry. He says that after he h ad e x c h a n g ed a n g ry w o r ds with the d e c e a s ed w h en he f o u nd h im a nd three other m en at the scene of the fight, the d e c e a s ed suddenly rushed at h im with a stick. Realizing that the d e c e a s ed w as fighting he picked up a stone a nd hit h im with it. W h en the d e c e a s ed fell d o wn he left a nd w e nt to his h o me without rendering a ny assistance to h i m. He h ad realised that he h ad severely injured the deceased b e c a u se w h en he c a me h o me he i m m e d i a t e ly w e nt to his uncle Malefetsane K h i ba w ho h as first aid experience. M r. M a f a n t i r i, counsel for the defence, submitted that the a c c u s ed testified in his d e f e n ce that he assaulted the d e c e a s ed w i th a stone b e c a u se the latter attacked h im with a stick. T h is is admitted by the C r o w n, so he submitted. He submitted that the a c c u s ed is therefore entitled to an acquittal as he acted in self- defence. He referred to B e l e me v. R ex 1 9 93 - 1 9 94 L L R - LB p. 7. T he facts of that case are entirely different f r om those of the present case. In that case the appellant h ad c o n v i n c ed the court that he w as acting in self-defence. In the present case the accused h as hopelessly told this C o u rt nothing but a p a ck of lies. He p r e p a r ed to attack the d e c e a s ed e v en before he a c c u s ed h im of h a v i ng an illicit love affair w i th his wife. He picked up a stone a nd w as already holding it in his h a nd w h en he started asking the d e c e a s ed those p r o v o k i ng questions. T he d e c e a s ed then b e c a me a n g ry a nd ordered the a c c u s ed to go a nd ask his g r a n d m o t h er those questions. It w as at that stage that he released his deadly missile a nd mortally injured the deceased. T he d e c e a s ed w as still standing w h e re he h ad b e en standing w h en the accusations started a nd n e v er m o v ed an inch until the missile hit h i m. T h at is the evidence of P . W. 1 a nd that of K a b e lo K h i ba ( P . W .2 at the P. E.) W h o se e v i d e n ce w as admitted. T he deceased n e v er attacked the a c c u s ed at all. T he a c c u s ed p l a n n ed the attack as s o on as he s aw the d e c e a s ed that e v e n i n g. T he a c c u s ed admitted that he b e c a me unsettled by the infidelity of his w i fe u p on his arrival the previous day w h en he found his children alone without their mother. He actually attacked o ne 'Manraile for allegedly taking his wife to m e n. He assaulted her. T h e re is no doubt in my m i nd that w h en he s aw the person he suspected of committing adultery with his wife he b e c a me very angry. H o w e v er that did not justify the killing of the deceased. He did not catch the deceased red handed committing adultery with his wife. He relied on hearsay by his children and o ne 'Malebusa. In my v i ew the killing of the deceased w as altogether unjustified and unlawful. In my v i ew even if the accused did not h a ve actual intention to kill the deceased he h ad legal intention w h i ch consists of foresight on the part of the accused that the circumstance m ay possibly exist coupled with recklessness as to whether it does or not. As a M o s o t ho m an the accused k n o ws very well that a stone in the h a nd of a M o s o t ho m an or youth is a very deadly missile with w h i ch m a ny people h a ve b e en killed. He foresaw the possibility of death of the deceased following the severe injuries w h i ch a stone w as likely to cause. H o w e v er he w as reckless as to whether it did or not. I find the accused guilty of m u r d er as charged. My assessors agree. J. L. K H E O LA C H I EF J U S T I CE 30TH N O V E M B E R, 1 9 99 F or C r o wn - M r. S e m o ko F or A c c u s ed - M r. M a f a n t i ri E x t e n u a t i ng C i r c u m s t a n c es T he fact that the Court has found that the intention to kill is o ne c o m m o n ly k n o wn as dolus eventualis is an extenuating circumstance. T h e re is no doubt that the deceased and the accused's wife used to behave in a deplorable m a n n er by going a w ay together during the night w h en the accused w as a w ay f r om h o m e. On o ne occasion w h en accused arrived at his h o me at night his y o u ng children w e re left alone. T h ey reported to their father that she h ad g o ne to Khalahali with the deceased. He accused the deceased of w e a n i ng his children. T h e re is no doubt that the accused w as very angry a nd even assaulted another w o m an in his village for taking his wife to m e n. H is anger w as altogether unjustified because he never caught the deceased committing adultery with his wife. H o w e v er his anger is a factor w h i ch m ay lessen his moral blameworthiness. I found that there w e re extenuating circumstances. In passing sentence I took into consideration the following factors: 1. A c c u s ed is a first offender. 2. He is still facing civil case for a compensation o f t en h e ad of cattle in order to "raise the head" of the deceased according to Sesotho custom. 3. This charge has been hanging over his head for eight years. Sentence: S e v en (7) years' imprisonment. J. L. K H E O LA C H I EF J U S T I CE 30th N o v e m b e r, 1 9 99 F or C r o wn : M r. S e m o ko F or A c c u s ed : M r. M a f a n t i ri