Rex V Napo Theko (CRI/T/0095/2023) [2024] LSHC 191 (25 October 2024)

# Rex V Napo Theko (CRI/T/0095/2023) [2024] LSHC 191 (25 October 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/191/eng@2024-10-25) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/191/eng@2024-10-25) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/191/eng@2024-10-25) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/191/eng@2024-10-25) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Napo Theko \(CRI/T/0095/2023\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/191/eng@2024-10-25) [ Download PDF (371.8 KB) ](/akn/ls/judgment/lshc/2024/191/eng@2024-10-25/source) Report a problem __ * Share * [ Download PDF (371.8 KB) ](/akn/ls/judgment/lshc/2024/191/eng@2024-10-25/source) * * * * * Report a problem __ ##### Rex V Napo Theko (CRI/T/0095/2023) [2024] LSHC 191 (25 October 2024) Copy citation * __Document detail * __Related documents Citation Rex V Napo Theko (CRI/T/0095/2023) [2024] LSHC 191 (25 October 2024) Copy Media Neutral Citation [2024] LSHC 191 Copy Hearing date 1 October 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0095/2023 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 25 October 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** **CRI/T/0095/2023** In the matter between **** **REX CROWN** And **NAPO THEKO ACCUSED** _Neutral Citation_ : Rex vs Napo Theko [[2024] LSH 191](/akn/ls/judgment/lsh/2024/191) CRIM (25th October 2024) **CORAM :** T. J. MOKOKO J **DATE OF HEARING :** 01/10/2024 **DATE OF RULING :** 25/10/2024 **__SUMMARY__** _Murder- Accused pleaded Self-defence- Accused found to have exceeded bounds of Self-Defence- Accused convicted of Culpable Homicide._ **__ANNOTATIONS__** __Cited Cases__ 1. _Ann Elizabeth Steyn v The State (105/2009)[[2009] ZASCA 152](/akn/za/judgment/zasca/2009/152)_ 2. _Beckford v R 1988 (1) AC 130_ 3. _Palmer v R 1971 AC 814_ 4. _R v Attwood 1946 AD 331_ 5. _Rex v Difford AD 370_ 6. _R v Hlongoane 1959 (3) 337_ 7. _Rex v Khasoane CRI/T/0130/2017_ 8. _Rex v Ntuli 1975 (2) SA 429_ 9. _S v Steyn 2010 1 SACR 411_ __Statutes__ 1. _Criminal Procedure and Evidence Act, 1981_ 2. _Penal Code Act_ **JUDGMENT** **INTRODUCTION** [1] The accused is charged with contravention of section 40 (1) of the Penal Code Act 2010 read with section 40 (2) thereof. In that upon or about the 10th December 2021, at or near Motimposo in the Maseru district, the accused did perform an unlawful act or omission to cause the death of Lebohang Lekhanya. [2] The accused pleaded not guilty to the charge. The crown did not accept his plea, leading to evidence from five witnesses. **CROWN’S CASE** **PW1 - Inspector Moeketsi** [2] He testified that he is a member of the Lesotho Mounted Police Service stationed at Mabote Police Post, with 32 years of service. In December 2021, he was stationed at Mabote Police Station. On 10th December 2021, Tsebo Thoabala reported the tragic death of his nephew, who had been fatally stabbed with a sharp object on 9th December 2021. A murder case was opened, and on 11th December 2021, he went to the Lesotho Funeral Service to identify the body of the deceased. He noted that the deceased had two wounds on the chest, which had been stitched. [3] During the cross-examination, the defence implied to the witness that the accused did not stab the deceased in the chest, as previously stated, but rather in the back. The witness firmly insisted that the deceased had indeed suffered two stab wounds to the chest. **PW2 - Doctor Lefatle Phakoana** [4] He mentioned that he completed his medical degree in Cuba. Additionally, he achieved a diploma in General Pathology in Zimbabwe, pursued a university diploma in occupational medicine from the University of the Free State, and specialized in forensic pathology death investigation at the University of Dakota in the United States of America. Presently, he is engaged in the Ministry of Police, where he conducts post-mortem examinations for the police service. [5] On 15th December 15th, 2021, he examined the body of the deceased and concluded that the cause of death was traumatic haemothorax. The deceased was reported to have been stabbed with a sharp object. On external appearance, the deceased was presented with two stab wounds on the chest with a sharp object. There was perforation of the right lung with a lot of blood collected. [6] The defence inquired with the witness about the potential impact of delayed medical treatment on the cause of death. The witness responded by indicating that a delay in providing medical treatment could indeed result in death. The defence further questioned the witness about the necessity of administering first aid. The witness replied that the most effective action was to arrest the bleeding immediately. Additionally, the defence asked if putting pressure on the wound could be beneficial. The witness responded that applying pressure to the chest wound would not effectively control the bleeding. The post-mortem report was officially submitted and identified as exhibit A. **PW3 - Leu Itsana** [7]**** On the 10th of December 2021, a member of the Lesotho Mounted Police Service with 22 years of service received a report about the death of a person. Upon receiving this report, the officer initiated an investigation that ultimately led to the accused individual. On the 19th of March 2022, while on duty, the officer was approached by the accused, who voluntarily surrendered himself in connection to the murder of the deceased. The officer identified himself to the accused, providing a cautionary statement that the accused has the right to remain silent. Still, any statement he makes may be used against him in court. The accused handed over a brown knife, which was later seized and LMPS 12 was filled in respect of the knife. This knife was then presented to the clerk of the court as evidence. The defendant was subsequently arrested and detained. He was taken before a Magistrate to provide a confession. It was mentioned that the witness had gone to the accused’s house multiple times only to be told that the accused was not present. LMPS 12 was submitted as exhibit B. The knife itself was not displayed in court, as the witness could not locate it in the exhibit room. The defence did not oppose LMPS 12 being admitted as evidence, as it was not disputed that the accused had surrendered the knife, and that the deceased had been stabbed with it. [8] During the cross-examination, the witness was asked about the accused's whereabouts. The defence suggested that the accused had not fled, but rather, the witness had informed the accused that he would be contacted if the police needed to speak with him. In response, the witness vehemently denied this claim, stating it was untrue. [9] The defence admitted the identification statement of Tsebo Thoabala in terms of _section 273 (1) of theCriminal Procedure and Evidence Act, 1981. Section 273 (1) _of the Act provides that _an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue and the admission shall be sufficient evidence of that fact._ Tsebo Thoabala stated that on the 15th of December 2021, he identified the body of the deceased before the doctor could perform a post-mortem examination. The deceased was his nephew. The statement was tendered as an exhibit and marked Exhibit C. **PW4 - Seabata Mohapi** [10] He provided testimony stating that he is 54 years old and currently resides in Motimposo. He was acquainted with the deceased during the latter's lifetime and is familiar with the accused, as they both live in Motimposo. In December 2021, the deceased was living in a rented flat in Motimposo. On the 9th of December 2021, between 4:00 pm and 5:00 pm, he was in the deceased's company, sitting in front of the rented flats, enjoying some Sesotho beer. He excused himself to use the toilet due to an upset stomach. While in the toilet, he heard someone calling for help. He quickly rushed to the scene and discovered the deceased seated between his own porch and that of Letsie. The deceased was covered in blood. He inquired of the deceased about the events that transpired, and the deceased recounted that the accused had stabbed him, alleging that the deceased had stolen his cow. He hurried to the village to seek assistance from the members of the community policing forum. Upon his return to the scene, he encountered Tsebo Thoabala and his son, who assisted in transporting the deceased to the hospital. The subsequent day, he received the distressing news that the deceased had passed away because of his injuries. [11] During the cross-examination, the witness provided detailed information regarding the events. He mentioned that the distance from where he was seated with the deceased to the toilet was approximately 72 paces. Additionally, he estimated that he spent about 5 to 6 minutes in the toilet. When questioned about the duration of his absence while seeking help, the witness stated that it was approximately 45 to 50 minutes. The witness also clarified that he did not witness the altercation between the deceased and the accused. The defence proposed a scenario in which the deceased attacked the accused with a stick, and the accused acted in self-defence by stabbing the deceased. In response, the witness recalled that there was a stick near their seating area, which was commonly sold at the main bus stop area in Maseru. **PW5 - Tsebo Toabala** [12]**** He provided evidence confirming that he resides in Motimposo and that the deceased was his nephew. The deceased was a married man with over four children. His wife was employed at the Tsosane Dumping site, but at the time of the deceased's passing, she was not working. Throughout his life, the deceased worked at the main bus stop area, transporting people's goods using a wheelbarrow. He was the only source of income for his family. On the 9th of December 2021, he received a distressing phone call informing him that the deceased had been violently stabbed. Without hesitation, he hurried to the scene alongside his son. Together, they swiftly transported the injured individual to the nearest hospital. The following day brought the devastating news that the deceased had tragically succumbed to severe injuries. Without delay, he made his way to the police station to report the distressing incident. Sadly, the deceased's family did not receive any support or assistance from the accused's family during this difficult time. [13] During the cross-examination, the witness was unwavering in his statement that he had received a phone call around 8:00 pm, informing him that the deceased had been stabbed. He clarified that he did not personally witness the confrontation between the deceased and the accused. The defence insinuated that the accused's family had helped the deceased's family with the burial, but the witness vehemently refuted this claim, stating that the accused's family did not provide any assistance with the deceased's burial. Furthermore, he emphasized that the deceased's family did not even attend the funeral. Following this testimony, the Crown closed its case. **DEFENCE CASE** **DW1- Napo Theko** [14]**** On the 9th of December 2021, he recalled a particular incident vividly. His neighbor, Mothata Lepheane, had urged him to address the issue of his father’s missing cow with the deceased. Acting on this advice, he made his way to the deceased's residence. As he approached, he noticed Mothata Lepheane in his yard. Inside the deceased’s yard, the deceased was accompanied by Seabata Mohapi (PW4) and another unidentified gentleman, engaged in the consumption of Sesotho beer. Tensions quickly escalated, leading to a heated argument between him and the deceased. Subsequently, the deceased momentarily left the scene, only to return brandishing a peculiar weapon—a slender stick with wires affixed to both ends. The deceased hit him with the stick on the head and forehead. He produced the knife and stabbed the deceased in the chest. The unidentified person who was with the deceased quickly left the scene. Onlookers stepped in to break up the altercation. He went out of the yard and positioned himself next to the gate. He stated that the incident took place between 6:00 pm and 7:00 pm. He said he stabbed the deceased after the deceased hit him twice with the stick. [15] During the cross-examination, the witness verified that the cow had disappeared on 8th December 2021 and that the incident was reported to the police four days later. The witness also confirmed that as of 9th December 2021, the day of the incident, the cow had not been reported as stolen to the police. The witness was questioned about whether the cow had been reported missing to the police at the time of the deceased's death. However, the witness did not respond to this question. [16] During cross-examination, the witness explained that he went to the police station to report a missing cow and to obtain a medical form. When asked about the medical form, he mentioned it might still be at home but did not bring it. The witness insisted that the deceased hit him with a stick. He also confirmed that he stabbed the deceased twice in the chest. When questioned about why the deceased attacked him with the stick, the witness replied that the deceased became agitated when questioned about the missing cow. The witness also confirmed that he went to the deceased's house to confront him about stealing his cow. [17] The court asked the witness about the location of the stab wounds on the deceased. The witness initially stated that he had inflicted one stab wound on the back and another on the chest. However, during cross-examination, he contradicted himself by claiming that both wounds were on the chest. When confronted about this inconsistency, the witness insisted that there was indeed a wound on the back of the deceased, refuting his earlier statement. **DW2 - Mothata Lepheana**. [18] He testified that he lives in Motimposo and is the neighbour of the accused person. He mentioned that he was in his yard when he witnessed the incident. According to his testimony, he saw the deceased leaving the house carrying a stick and striking the accused with it at the deceased's residence. As he stepped out of the gate of his yard, he was confronted with a harrowing scene: the accused viciously stabbing the deceased in the chest. The accused then fled, and the witness gave chase. The weapon used in the attack was a Lesapo stick with red tape, a formidable and thick implement larger than the microphone holder in the courtroom. The deceased managed to escape to where another witness, PW4, was using the toilet. The witness followed and saw PW4 emerging from the toilet. Upon reaching the attack scene, the witness found that the accused had already left, standing by the gate. When questioned about the stick, the witness revealed that the deceased had left it at the spot of the stabbing. The defence then closed its case. **SUBMISSIONS BY CROWN** [19] Advocate Mokuku, the crown counsel, argued that the accused visited the deceased's residence to address the issue of a missing cow. He contended that there was no evidence presented by the accused to support the claim that the deceased had struck him with a stick. He stated that the accused used excessive force and referred the court to the case of **_Beckford v R_**** _**[1]**_****_, Palmer v R_**** _**[2]**_****_and S v Steyn_**** _**[3]**_**.**** He argued that the court should consider the accused's methods to prevent the attack. The deceased was older than the accused. The deceased was stabbed twice in the chest, which is the most vulnerable area of the human body. The evidence of the deceased attacking the accused emerged when the accused testified in his defence. The weapon that was claimed to have been used on the accused was never found. He argued that the evidence of the accused is conflicting in material respects. For example, DW2 stated that the evidence of PW4 regarding the scene was fabricated, but the defence did not challenge the evidence of PW4 under cross-examination. The defence did not challenge the testimony of the prosecution's witnesses about the number of people who were at the deceased's house drinking traditional beer. The accused mentioned that the deceased's stick was the same size as the microphone in court, while another witness (DW2) described a different size and nature of the stick. The accused’s version was heard for the first time when the accused testified in court. If the accused was attacked with the stick described to the court, two wounds to the chest were not commensurate with the harm that would befall the accused person. The evidence does not align with the accused's claim regarding the amount of force applied, the weapon used, and the specific areas of the stabs. The deceased was positioned on the forecourt, and the accused waited for the deceased to enter the house and return while remaining in the same location. Despite having multiple opportunities to flee, the accused chose to stay. Additionally, the accused's self-defence argument was not convincing, as his testimony evolved when questioned. The accused's defence strategy, which involved formulating his defence based on the testimony of the crown witnesses, confused the court. **SUBMISSIONS BY THE DEFENCE** [20] On the other hand, the defence counsel, Adv. Mabote submitted that the defence does not deny that the accused stabbed the deceased but that the accused did so in self-defence. The prosecution witnesses did not see the accused committing any unlawful act. The accused's testimony is supported by DW2, who witnessed the altercation. According to DW2, the deceased started the fight, and the accused stabbed the deceased in self-defence. He referred the court to the case of **R v Attwood******[4]******, Rex v Ntuli******[5]******, Rex v Khasoane******[6]******, Rex v Difford******[7]******, and R v Hlongoane******[8]****.**** She added that the prosecution failed to prove beyond a reasonable doubt that the accused unlawfully and intentionally killed the deceased. Therefore, the accused should be acquitted. **THE LAW** [20] _Section 20. (1) of the Penal Code Act, 2010_ provides that: _“No person shall be criminally responsible for the use of force in repelling an unlawful attack-_ 1. _Upon himself or herself or another person if-_ 1. _It was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ 2. _The degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances._ 2. _Upon his or her property or the property of another provided that the means he or she chooses and the degree of force he or she uses in so doing are reasonable in the circumstances._ [21] For the defense of self-defense to be successful, three conditions must be met. First, there must be an unlawful attack on the accused. Second, in the circumstances at the time, it was not reasonable for the accused to retreat. Lastly, the degree of force used by the accused must have been reasonably necessary to prevent the attack. These are the requirements outlined in _section 20 (1) of the Penal Code Act_. [22] Be that as it may the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex**[9]**,_ **where **Ramodibedi P** had this to say: At this stage I should like to repeat what l said in the Court of Appeal of Botswana in the case of **_Bobe v The State_**[10]**,** (**Grosskopf JA** and **Lord Coulsfield JA** concurring) remarked: _“Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility, then the accused is entitled to an acquittal.**See S v Ntuli**[11]****. _ _As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker._ 2. _The means he used in defending himself were not excessive in relation to the danger._ 3. _And the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.**See R V Attwood**[12]**. **_ **ANALYSIS AND DISCUSSION** [23] The accused testified that on the fateful day, he went to the deceased's house and found the deceased, along with PW4 and another person he did not know, drinking traditional beer. An argument broke out between him and the deceased. The deceased then left him outside, went into the house, and returned carrying a stick. The deceased struck him on the head and forehead with the stick. He produced the knife and stabbed the deceased in the chest. PW1- Inspector Moeketsi testified that on 11th December 2021, he examined the body of the deceased, and he observed that the deceased sustained two wounds on the chest. PW2- Doctor Phakoana, the pathologist, testified that upon examination of the deceased, the external appearance showed that the deceased had two stab wounds on the chest with a sharp object. In his testimony, the accused person said that he stabbed the deceased in the chest as they were facing each other during the altercation. The accused person gave the version of events when he testified in his defence. He stated that the deceased hit him with the stick twice, i. e., on the head and the forehead. In defending himself, he stabbed the deceased in the chest. It is a matter of common cause that the deceased sustained two stab wounds on the chest. This is corroborated by the evidence of PW1 and PW2, who stated that the deceased was presented with two stab wounds on the chest. The accused person stated that he stabbed the deceased after the deceased hit him twice with the stick. According to the accused’s version, he stabbed the deceased two times after the deceased had hit him with the stick. [24] This court must determine the quilt or otherwise of the accused on the version of the accused person because the version of events was given by the accused person when he testified. This court has no reason not to accept the accused’s version. Be that as it may, this court must determine whether the accused meets the requirements for a successful defence of self-defence. I must revert to the issue that it is the accused’s version that he stabbed the accused twice in the chest after the deceased had hit him with the stick on the head and forehead. According to the version of the accused, he did not say that after he stabbed the deceased for the first time, the deceased attacked him further. According to him, he stabbed the deceased twice in the chest after the deceased had hit him with the stick. The next question would be whether the accused did not exceed the bounds of self-defence. [25] According to the three main requirements for a successful defence of self-defence, as enunciated in the case of **_Linake_** _(supra),_ the accused must show that the means he used in defending himself were not excessive in relation to the danger and the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger. In the case of**_Ann Elizabeth Steyn v The State_**[13]**** , the Court said: “ _Every case must be determined in the light of its own particular circumstances, and it is impossible to devise a precise test to determine the legality or otherwise of the actions of a person who relies upon private defence. However, there should be a reasonable balance between the attack and the defensive act as one may not shoot to kill another who attacks you with a flywatter.**[14]** As Prof J. Burchell has correctly explained…modern legal systems do not insist upon strict proportionality between the attack and defence, believing rather that the proper consideration is whether taking all the factors into account, the defender acted reasonably in the manner in which he defended himself or his property. **[15]** Factors relevant to the decision in this regard include the following ( the list is by no means exhaustive)_ * _The relationship between parties._ * _Their respective ages, gender, and physical strengths._ * _The location of the incident._ * _The nature, severity, and persistence of the attack._ * _The nature and severity of any injury or harm likely to be sustained in the attack._ * _The means available to avert the attack._ * _The nature of the means used to offer defence._ * _The nature and extent of the harm likely to be caused by the defence**[16]**._ [26] In the case of **Malefetsane Beleme v Rex**[17]** **where **Steyn P**. had this to say: “ _There is substance in this contention but, decisive in my view, is the fact that the appellant fired three shots at the deceased when a single warning shot would have sufficed. On an acceptance of the situation outlined above the correct finding ought to have been that the appellant exceeded the bounds of self-defence and that a verdict of culpable homicide should have been returned”._ [27In this case, the accused claimed that the deceased was carrying a thin stick, while he himself was armed with a knife. The accused went to the deceased's house to confront him about a stolen cow, believing that the deceased had been paid to steal it. The deceased, who was 50 years old, was older than the accused, who was 27 years old in 2021. It is a well-known fact that the deceased was drinking traditional beer on the fateful day. The altercation occurred at the deceased's house, as the accused went there to confront him about his stolen cow. The accused did not inform the court about the nature and severity of the injury he sustained in the attack. He claimed to have a medical form indicating the nature and extent of his injuries, but he failed to produce it in court. Not only did he fail to produce the medical form, but he also failed to describe the nature of any injuries he may have sustained. Since the accused knew all along that his defence was self-defence, it would have been expected for him to present the medical form to demonstrate the injuries he sustained in the attack. [27] The court has considered the accused's claim that the deceased struck him with a stick twice. In response, he stabbed the deceased two times in the chest in self-defence. The court strongly believes that one stab would have been enough to stop the attack and that the accused's use of force was excessive considering the circumstances. The accused did not mention that the deceased continued to attack him after the initial stabbing. The accused had a sufficient opportunity to retreat after inflicting the first stab wound, as there was no imminent danger at that time. **CONCLUSION** [28]**** I have concluded that the accused stabbed the deceased in the chest two times when a single stabbing would have sufficed to avert the attack. I, therefore, find that the accused exceeded the bounds of self-defence. **ORDER** 1. The accused is found guilty of culpable homicide. My Assessors Agree. ______________________ T.J. MOKOKO JUDGE FOR THE CROWN : FOR THE ACCUSED : * * * [1] 1988 (1) AC 130 [2] 1971 AC 814 [3] 2010 1 SACR 411 [4] 1946 AD 331 [5] 1975 (2) SA 429 [6] CRI/T/0130/2017 at para [12] [7] AD 370 at 373 [8] 1959 (3) 337 at 341 A [9] LAC (2009 – 2010) at Page 7 [10] [2006] 1 BLR 254 (CA) at 257 [11] 1975 (1) SA 429 (A) [12] 1946 AD 331. [13] (105/2009) [[2009] ZASCA 152](/akn/za/judgment/zasca/2009/152) (27 November 2009) at page 10 para [19] [14] Snyman op cit 109 [15] Burchell op cit at 214. [16] S v Trainor 2003 (1) SACR 35 (SCA) at [13] ; Snyman op cit at 111-112 and Burchell op cit at 241. [17] LLRLB 7 at p. 10 #### __Related documents ▲ To the top >