Rex V Phaanyane (CRI/T/0069/2022) [2023] LSHC 88 (25 April 2023)

# Rex V Phaanyane (CRI/T/0069/2022) [2023] LSHC 88 (25 April 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/88/eng@2023-04-25) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/88/eng@2023-04-25) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/88/eng@2023-04-25) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/88/eng@2023-04-25) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Phaanyane \(CRI/T/0069/2022\) \[2023\] LSHC 88 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/88/eng@2023-04-25) [ Download PDF (438.6 KB) ](/akn/ls/judgment/lshc/2023/88/eng@2023-04-25/source) Report a problem __ * Share * [ Download PDF (438.6 KB) ](/akn/ls/judgment/lshc/2023/88/eng@2023-04-25/source) * * * * * Report a problem __ ##### Rex V Phaanyane (CRI/T/0069/2022) [2023] LSHC 88 (25 April 2023) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Rex V Phaanyane (CRI/T/0069/2022) [2023] LSHC 88 (25 April 2023) Copy Media Neutral Citation [2023] LSHC 88 Copy Hearing date 12 December 2022 Court [High Court](/judgments/LSHC/) Case number CRI/T/0069/2022 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 25 April 2023 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU CRI/T/0069****/2022** In the matter between **REX** **AND** **KHOTHATSO PHAANYANE ACCUSED** **Neutral Citation** : Rex v Khothatso Phaanyane [[2022] LSHC 88](/akn/ls/judgment/lshc/2022/88) Cri (25h April 2023) **CORAM : HLAELE J.** **HEARD : 12 TH DECEMBER 2022&24TH FEBRUARY 2023** **DELIVERED :** **25 TH APRIL 2023** **SUMMARY:**_The accused raising the defence of Private Defence. The court interrogating the requirement of excessive force in private defence._ __ **_ANNOTATIONS_****:** **_CITED CASES_** : 1. Woolmington V D.P.P. [1935] A.C. 462 2. Rex v Chondile (CRI/T/12/2002) [[2014] LSHC 69](/akn/ls/judgment/lshc/2014/69) (28 May 2014); 3. S v Motleleni 1976 (1) SA 403 (A) 4. S v Motleleni 1976 (1) SA 403 (A) 5. Palmer v R (1971) 55 Cr App R223 6. R. v. Krull 1959 (3) S.A. 392 (A.D) 7. R v Zikalala 1953(2) SA 568 8. Molapo v Rex 1990-94 LAC 140 9. Molapo v Rex 1990-94 LAC 140 10. Poone v DPP 1999-2000 LRR & LB 214 11. S v Ntuli, 1975 (1) SA 429 12. Ntanja v Voster & Minister of Justice a 1950(4) SA 13. [_Nene v S_](https://www.derebus.org.za/wp-content/uploads/2021/02/Nene-v-S-KZP-unreported-case-no-AR65_2017-4-5-2018-Henriques-J-Chetty-concurring.pdf) 14. _S v Ntuli_ _1975 (1) SA 429 (A_ 15. S v Shabalala 1986(4) SA734 16. Lempe v R LAC (1995-1999) **_STATETUS_** 1. Penal Code **_BOOKS_** 1. Burchell & Hunt. **_South African Criminal Law & Procedure, Vol.1_** (1st edition) page 107 **_ARTICLES_** 1. Le Roux, Jolandi, Private Defence: Strict Conditions to Be Satisfied (May 3, 2010). Journal of Contemporary Roman-Dutch Law, Vol. 73, p. 328, 2010, Available at SSRN: [https://ssrn.com/abstract=1824309](https://ssrn.com/abstract=1824309) 2. Grainger & Allison _'s_** _Diagnostic Radiology_** (6 ed.). Elsevier. 2015. pp. 184–208. Write that **Hemopneumothorax** , or **haemopneumothorax** , is the condition of having both air ([pneumothorax](https://en.wikipedia.org/wiki/Pneumothorax "Pneumothorax")) and blood ([hemothorax](https://en.wikipedia.org/wiki/Hemothorax "Hemothorax")) in the chest cavity. A hemothorax, pneumothorax, or the combination of both can occur due to an injury to the lung or chest. Judith Marcin, M.D. **_JUDGMENT_** **HLAELE J** **[1]_INTRODUCTION_** **1.1 The accused in this case is charged with the crime of murder under section 40(1) read with 40(2) of the Penal Code in that upon or about the 7 th day of December 2015, at or near Maqhaka in the district of Berea, the said accused did perform an unlawful act of omission, with the intention of causing the murder of the deceased MOSIUOA HOALA, such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid. ** **1.2 Section 40 of the Penal Code reads as follows;** **_Murder and extenuating circumstances_** 40. _(1) Any person who performs any unlawful act or omission with the intention of causing the death of another person, commits the offence of murder if such death results from his or her act or omission._ _(2)__The punishment on conviction for murder shall be a sentence of Death._ This means that in order to discharge the burden of proof placed on it by law, the Crown must prove beyond reasonable doubt that the accused herein acted unlawfully, thereby causing the death of the deceased, which death she stands accused of. **[2]_THE EVDENCE_ ** The following were called as crown witnesses’ and hereunder is a summary of their evidence. 2.1 The Crown, in an attempt to discharge the duty placed on it by law of proving their case beyond a reasonable doubt, it called 3 witnesses to lead evidence. These witnesses were **_Mont’si Lenka, Molefi Mokhele_** and **_NO. 51595 DPC Paepae_**. The statement which was marked EXT A was admitted by Defense and read into record. A postmoterm report marked EXT B was also admitted and read into record. Two pieces of a knife were exhibited and marked EXT C. 2.2 The evidence of the crown reveals that on that day of the 7th December 2013 the accused and the deceased were at the Maqhaka taxi rank as they had both just alighted from a taxi. They were seen having an altercation and fighting physically with their hands by PW1 who was herding his cattle 50 meters away from the taxi rank. PW1 when he saw this he shouted to raise an alarm to the people who were at the taxi rank to intervene the fight, however, no one intervened. PW1’s evidence is further that the fight took about 5 seconds and then the deceased leaned against a shack built at the taxi rank and fell. This was at the time when this witness had just arrived at the scene. Seeing this, he went over to the deceased and called his name. The deceased just burped and could not talk. The deceased had a wound on his chest. 2.3 PW2 who was selling to customers inside his shack when the incident happened only heard the voices of a woman and a man insulting each other. When he went outside to see what was happening he found the deceased already having fallen down against his shack. PW3 was an investigating officer. He testified that upon arresting the accused and charging her with the murder of Mosiuoa Hoala, she handed over to him a handle of a knife and told him that was the knife used in the murder and she could not recall the place where its blade had fallen. The following day this witness received the blade from the chief of Maqhaka which the accused confirmed was part of the knife she had handed to this witness the previous day. 2.4 The version that was put by the Defense Counsel Mr Makara to the Crown witnesses was that the deceased provoked the accused by insulting her and pouring alcohol over her while she and deceased were still inside the taxi. The defense continued to show that the accused took off her heeled shoes in order to run away but was prevented from doing so by the deceased who pulled her by her artificial hair which he even pulled off her head causing her injuries. The deceased also tried to hit accused with a beer bottle. The defense further put to PW1 that as the accused tried to run away, she tripped and fell. That is when the deceased came charging at her, and as he did that the accused kicked him with his feet whilst lying down hence the deceased fell off and dropped the knife he was holding. The accused crawled over to the knife and got hold of it. She held the knife pointing it at the deceased to scare him off. However, he came charging at her and fell onto the knife. Mr Makara added that PW1 could not have seen all these as they transpired since he was a bit far from the fight about 50 meters away. PW1 maintained his stance that at all material times the deceased and accused were facing each other and the only time he saw anyone fall was when the deceased leaned against the shack and never got up. **[3]****_THE DEFENCE CASE_** 3.1 The only witness to take a stand for the defence was the accused herself. Her evidence was that on the fateful day, she boarded a taxi travelling from Sefikeng Mall in Maseru to Matukeng in Teyateyaneng. There were passengers in this taxi one of which was the deceased. En route Matukeng there was a quarrel between her and the deceased whereby the deceased kept on insulting her by calling her a whore (letekatse in Sesotho). The deceased even poured alcohol over her. 3.2 The deceased seemed to have been drunk as he was even holding the alcohol bottle in his hand. The deceased and accused alighted the taxi together at Maqhaka taxi rank. Immediately after alighting from the taxi, the deceased called her by the same insult once more. Accused then told the deceased that ‘he would not call her by the same insult as she had then arrived in her own village’. 3.3 Thereafter, the accused went to Mosiuoa’s shack where she bought airtime and as she was busy recharging her phone not noticing deceased following her, he hit her with a fist causing her to hit the ground with one knee. As she fell, the deceased pulled her up by her artificial hair and her hair pulled out causing her injuries. Blood started dripping onto her face. She then took off her heeled shoes trying to run away. However, she tripped and fell. That was when the deceased came charging upon her holding a knife. Whilst still on the floor, as the deceased approached her, she kicked him on the knees with both her feet; hence the deceased fell and dropped the knife to the ground. The accused crawled over and got hold of the knife. She got up and held the knife with both her hands pointing it at the deceased. The deceased came charging at her staggering and fell over the knife. The deceased then managed to pull back from the knife and hit her three times with a fist. Thereafter he leaned against the shack and fell. 3.4 The cross examination of this witnessed focused on rebutting her theory on how the stab which led to the fate of the deceased occurred. Mainly, the crown tried to point at the impossibility of a held knife resulting in a deadly stab. The accused stood her ground insisting that that is how the stab occurred. More will be said regarding this. In essence the accused was placing before the court that she acted in self defence. **[4]****_BURDEN OF PROOF_** 4.1 It is trite law that the burden of proof to prove that the murder occurred and that the accused is responsible for the murder rests on the crown. I refer to the celebrated case of **_Woolmington V D.P.P._** [1] More will be said about this case later on in the judgement. **[3]****_SELF- DEFENSE- THE LAW_** 3.1 In this case the accused raised the defence of self defence. It is for this reason that the court will narrate the requirements of this law and in so doing establish whether with the evidence placed before it, the accused has complied with the legal requisites of this defence. The result being, if such compliance is found to exist, the accused stands to be acquitted. 3.1 In the book titled **_South African Criminal Law & Procedure, Vol.1_**[2] which has inevitably become the bible or manual for criminal procedure, the learned authors of the book write: _“In accordance with the general rule, when the accused raises a special defence (i.e., one which challenges the prosecution's proof of the commission of the crime, including all its elements, by the accused) or a general defence which exclude the unlawfulness of the actus, he does not have to prove the defence, not even on the balance of probabilities; only an evidential burden rests upon him. It is merely incumbent on him to introduce or adduce evidence which shows that the defence is a possible factor in the case. When a defence is so raised the prosecution only discharges the onus of proving the actus and its unlawfulness where that is the only possible inference.”_ 3.2 For self-defence to succeed as a defence the accused must have been unlawfully attacked and have reasonable grounds for believing that he was in imminent danger of death or serious injury. Furthermore, he must not use excessive force or means in relation to the danger in those particular circumstances. Majara J in the case of **_Rex v Chondile_**** _**[3]**_** said; _It is a well settled principle of law that where an accused person relies on self-defence there are certain requirements that he needs to establish in order to succeed. These have been laid down as follows; if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking he was in danger of death or serious injury at the hands of his attacker(s);_ 2. _The means he used in defending himself were not excessive in relation to the danger; and_ 3. _The means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger._ Further, in the case of **_S v Motleleni_******[4]******,****** the Court made the following remarks; “ _The question whether an accused, who relied on self-defence, has acted lawfully must be judged by objective standards. In applying these standards, it must decide what a fictitious reasonable man, in the position of the accused and in the light of all the circumstances would have done.”_ 3.3 The test assists the Court in its assessment of the defence in the context of a myriad of factors including but not limited to, the nature of the attack, the interest threatened, the relationship between the parties, their respective age, sex, size and strength, location of the incident, the nature or the means used in defence, the result of the defence etc. 3.4 I refer also to the case of** __****_Palmer v R_**** _**[5]**_****** which was quoted with approval by the Court of Appeal in **Serame Linate v R.** In the Palmer case, Lord Morris made the following instructive remarks:- _“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do so, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances.... It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be .... If there has been no attack, then clearly there will have been no need for defence. If there has been [an] attack so that defence is reasonably necessary,**it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action**_.” 3.5 It is trite law that the onus of negating self-defence in criminal cases is on the Crown. The onus is upon the crown throughout the case, to show that the accused acted unlawfully and to disprove self defence as false beyond all reasonable doubt; no onus rests upon the accused to prove his innocence; all he need show is that his version is reasonably possibly true or probable. In **_R. v. Krull_** [6] Schreiner, J.A. said the following; _“In self-defence the motive is fear, which from the law's viewpoint is a better motive than anger, which operates in provocation. If you kill intentionally within the limits of self-defence, you are not guilty. If you exceed those limits moderately you are guilty of culpable homicide; if immoderately, you are guilty of murder.”_ 3.5 However, it has been said in the case of **_R v_**** _ Zikalala_**[7] that where an opportunity to flee presents itself, the accused must flee rather that rely on self defence. I now turn to the analysis of the facts, simultaneously pairing them with the law in order to establish whether the accused has successfully raised defense of the self- defense. **[4]****THE PROVED FACTS OF THE CASE AND THE DEFENCE OF SELF DEFENCE** 4.1 The common thread that runs throughout the evidence before court is this, that the deceased and the accused alighted from the same taxi which was from Maseru, to their hometown Maqhaka. PW 1 provides that from a distance of 50 metres he could see that there was fight between these 2 individuals who he confirms alighted the taxi together. Although he denies, it is admittedly obvious that he was too far to hear who was saying what to who but he could probably see that there was an exchange of blows. Fists and slaps as he put it. That there was an exchange of words was proved by PW2 who said that he heard an exchange of unpleasantries between the two. These unpleasantries were in the form on insults. This is corroborated by the evidence of the accused save she particularized the fight in detail to say that the deceased was attacking her whilst she was defending herself. She narrated that upon alighting from the taxi, when the deceased continued his barrage of insults, she warned him that she is now at her hometown and he should desist from his unruly behaviour in the taxi. The prosecution unsuccessfully tried to say that these words were intended to imply that the accused is on her turf and as a result she would assault the accused willy-nilly. I find that this could not be so in the light of the fact that uncontroverted evidence indicated that at all material times the deceased was the instigator of aggression. 4.2 The evidence continues, that the deceased’s aggression towards the accused did not cease. As has been said, when the accused tried to cross the road, the deceased grabbed her by her hair, pulling off as he did some artificial hair(braids) which the accused had on her head. Needless to say, this caused the accused not only pain, but roused in her the natural inclination of any man or woman) to protect themselves or flee. Fight or flee as it is said. Uncontroverted evidence is to the effect that the accused tried at this stage to take off her shoes in order to flee. The deceased took this as an opportune moment to attack the accused. This was done in the form of a knife which he intended to stab the accused with. The accused says she managed to disarm the accused who fell. she took this opportunity to take the knife in order to totally disarm the deceased. Thus far, the evidence indicates that there has been aggression meted out at the accused. 4.3 whilst holding this knife, the deceased charged at her, staggering and “fell” on the knife. He rose from this alleged fall, slapped the accused and immediately leaned against PW2’s shack and slumped. This, she insisted, is how the deceased met his demise. It is also her evidence that this was done to protect and defend herself. By so saying, the accused was inviting the court to interrogate this act in line with the requirements of law. 4.4 In order to successfully rely on self-defense, the evidence of the accused had to show that she had been unlawfully attacked and had reasonable grounds for thinking he was in danger of death or serious injury at the hands of his attacker. Her evidence, which was not controverted, indicates that once she alighted from the taxi, she immediately sought to get airtime so that she could be able to call for help. This indicates that she at all times never sought to be an aggressor in this tussle of words. 4.5 She indicated her lack of aggression towards the deceased also in that she testified that when she tried to cross the road, the deceased attacked her by pulling her hair. She had braids on and the accused pulled them out, injuring her. Whilst PW1 accepted that he did not see what was exactly taking place, he did confirm that there was a fight. What the accused did was to give more detail to this. Once again, the evidence points towards the accused fleeing from the aggression when she had the opportunity. The act of kicking the deceased when he had a knife is also indicative of a desire to defend oneself. The evidence shows that at a later stage the accused had a knife in her hand, which she had taken off the ground once the deceased fell and lost control of it. When the accused charged at her, she managed to use it to stab him. 4.6 From this evidence it can be said that the deceased had managed to instill fear in the accused. A stranger who had been insulting her for no apparent reason had a knife which she was attacking her with. When she disarmed him, he staggered and fell on the knife. 4.7 This falling on and then off the knife is difficult to visualize and I even asked for a demonstration which was read into the record. I find this explanation fanciful. This fanciful evidence will be addressed. 4.8 The second question, for now, which I wish to address is whether the means she used in defending herself were not excessive in relation to the danger. 4.9 The test here is objective. In **_Molapo v Rex_**[8] it was observed that the appellant could subjectively kill because he believes his life is in danger; _“That is not the end of the matter. The question which arises is whether in the circumstances which prevailed at the time, the appellant's shooting of the deceased was an action of a reasonable man."_ In **_Poone v DPP**[9]**_** , the court relying on the dictum in **_S v Ntuli_**[10] said, _“Even so, applying the objective test must be a robust exercise with the court "not seeking to measure with intellectual callipers, the precise bounds of legitimate self-defence" -. As Van Winsen AJ said in**Ntanjana v Voster & Minister of Justice **1950 (4) SA 398, the court must put itself in the shoes of a person under attack - dealing with a crisis involving life and death:”_ Meaning: _“The court must be careful to avoid the role of an armchair critic after the event, weighing the matter in a secluded security of a court room .... It must always be ever present in the mind of a judge that ... the person claiming to act in self-defence does so in an emergency."__**[11]**_ 4.10 From the cases cited above, it becomes clear that the defense talks to a two-step theory. The first is “individual protection”[12] theory. Here the emphasis is on the individual and their right to defend oneself against an unlawful attack. Every person has a natural right to protect oneself. No person needs simply suffer the infringement on their life, property or honour by another. (Wo)Man has a natural inclination and instinct to ward off danger and or to protect themselves against danger. 4.11 The second leg of the theory relating to the existence of private defence is the “upholding-of-justice theory”.[13] The idea underlying this theory is that people acting in private defence perform acts whereby they assist in upholding the legal order. Private defence is meant to prevent justice from yielding to injustice, because private defence comes into play only in situations in which there is an unlawful attack. People acting in private defence protect not only themselves, but also the entire legal order. They act in place of the authorities (the state or the police), because it is practically impossible for the police to always protect all people in all places. See [_**Nene v S**_](https://www.derebus.org.za/wp-content/uploads/2021/02/Nene-v-S-KZP-unreported-case-no-AR65_2017-4-5-2018-Henriques-J-Chetty-concurring.pdf) _._[14] The court in _**S v Ntuli**_ _**[15]**___ noted the following: ‘In applying these formulations to the flesh-and-blood facts, the court adopts a robust approach, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence or the foreseeability or foresight of resultant death’. 4.12 On the issue of excessive force, I must admit that the description of the accused of what actually occurred seems fanciful and a tad exaggerated to a point of disbelief. This leads me to the dictum in **_S v Shabalala_** [16]cited with approval in the case of **_Lempe v R_** [17]to the effect that _“Caution must be exercised in attaching too much weight on the fact the evidence of the accused is untruthful. An innocent man may falsely deny certain facts because he fears that to admit them would imperil himself.”_ 4.13 The dictum here suggests that the court should be alive to the falsity which an accused person can put evidence as a result of being fearful that the truth can be detrimental to their case. I will therefore not put too much weight on this evidence. I will look at this evidence in totality and not isolate this specific event. In so doing I will acknowledge that indeed the wound was caused by the act of the accused. 4.14 That there was a wound can be gathered from the post mortem report. The post mortem report which was admitted evidence by the defence, discloses that the deceased died as a result of a traumatic wound to the chest. This adds credence to the fact that the most likely occurrence was that a stab occurred. 4.15 Authorities point towards the principle that the crown still bears the onus of proving or disproving this fact. The crown has not brought any evidence to rebut this testimony. Meaning, the fact that the story of the accused stands to be disbelieved, does not automatically translate to mean that the crown has discharged the onus it bears to prove the innocence of the accused beyond a reasonable doubt. 4.16 On whether there was excessive force meted by the accused in her defence, I turn to, as I had undertaken, to the case of **_Woolmington V D.P.P._****__** above. I refer specifically to this dictum by the learned judge therein. It reads: _"__The case for the prosecution is deliberate shooting. The Defence is: Not guilty of murder. They prove the killing, and in the absence of explanation that is murder. The Defence say: Excusable because accidental. Consider whether you entertain the slightest doubt that this was a deliberate killing … If you have no doubt, it is your duty to convict … If the result of a dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your pleasure is to acquit."_ 4.17 It is an established fact from the totality of the evidence that the accused was attacked. She felt the need to protect her bodily integrity. The accused admits that she stabbed the deceased with the knife in self-defence. By the nature of his defence the accused is admitting most of the material facts in this case. She claims that her action is justified because of the circumstances which prevailed at the time she took the alleged action. I have already alluded to the fact that the stabbing was articulated in a fanciful and unconvincing manner, but the crown did not rebut this. The law is that the testimony of the accused must be reasonably probably true. 4.18 The post mortem report also shows that the deceased suffered Hemopneumothorax __ which means the bleeding into the chest and air escaping from the lungs into the chest cavity. It signifies a penetrating wound.[18] Judith Marcin, M.D writes; “[ _Pneumothorax_](https://www.healthline.com/health/collapsed-lung) _, which is also known as a collapsed lung, happens when there is air outside the lung, in the space between the lung and the chest cavity. Hemothorax occurs when there is blood in that same space.__Hemopneumothorax most often occurs as a result of a wound to the chest, such as from a gunshot, stabbing, or broken rib.”**[19]**_ It can be gathered from the aforesaid that the deceased was stabbed as a result of which he died. Could this be an indication that excessive force was used? To this question I reflect on the caution in Ntuli. That the measuring apparatus to evaluate this should not be as if one is using a ruler. Nor should the court assume the role of a movie director where every action is planned and synchronized in terms of a script. What I should bear in mind as the court is that in a fight, those involved do not have time to reflect, nor do they have time to plan their next move. They are on survival mode. If flight is impossible (and I have found that indeed it was) then fight becomes the order of the moment. The accused, seeing the attacker who had just stripped artificial hair from her head come advancing towards her, used the only means available to ward him off and as it were, protect herself. 4.19 That there is only one wound is indicative that the act was intended to ward off the attacker, as opposed to stab him to death. The depth of the wound could be a result of the adrenalin rush one experiences during such moments. I therefore find that she did not use excessive force under the circumstances. # 4.20 In assuming the theory set out in the case of **_Ntuli_**** __** above,**** that is**** by not adopting the position of an armchair critic, also not using the exact measurement of intellectual calipers. Further borrowing from the case of **_Palmer_** above, that it should be recognized that a person defending themselves cannot weigh to a nicety the exact measure of his necessary defensive action, I find that the accused acted in self defence in that there was an imminent attack, the attack was unlawful, the means she used in defending herself were not excessive in relation to the danger; and the means she used in defending herself were the only or least dangerous means whereby she could have avoided the danger. Refereeing the **_Burchell and Hunt_** above, it was provided that it is merely incumbent on an accused to introduce or adduce evidence which shows that the defence is 'a possible factor in the case'. 4.21 Applying the objective test, that is whether a reasonable person in the position of the accused would have acted in the manner in which the accused acted under the circumstances, (a test that is put to an accused who raises the defence of self -defense), I find that any reasonable person in the same situation of the accused would have acted in the same manner.__ I therefore find the accused not guilty of the crime of murder and she is acquitted. My assessors agree with me. \------------------------------ **M. G. HLAELE** **JUDGE** For Crown: Adv. Leaphene For Accused: Adv. Makara * * * [1] _Woolmington V D.P.P_. [1935] A.C. 462. [2] Burchell & Hunt. **__South African Criminal Law & Procedure, Vol.1__** (1st edition) page 107 [3] _Rex v Chondile_ (CRI/T/12/2002) [[2014] LSHC 69](/akn/ls/judgment/lshc/2014/69) (28 May 2014). [4] _S v Motleleni_ 1976 (1) SA 403 (A) at 406G.) [5] **_Palmer v R_******(1971) 55 Cr App R223, PC at p242 [6] **_R. v. Krull_** 1959 (3) S.A. 392 (A.D) at p. 399 [7] _R v Zikalala_ 1953(2) SA 568 [8] _Molapo v Rex_ 1990-94 LAC 140 at page 145 [9] _Poone v DPP_ 1999-2000 LRR & LB 214. [10] S v Ntuli, 1975 (1) SA 429 at page 437 E. [11] _Ntanja v Voster & Minister of Justice_ 1950(4) SA at 406. [12] Le Roux, Jolandi, Private Defence: Strict Conditions to Be Satisfied (May 3, 2010). Journal of Contemporary Roman-Dutch Law, Vol. 73, p. 328, 2010, Available at SSRN: [https://ssrn.com/abstract=1824309](https://ssrn.com/abstract=1824309) [13] Le Roux, Jolandi, Private Defence: Strict Conditions to Be Satisfied (May 3, 2010). Journal of Contemporary Roman-Dutch Law, Vol. 73, p. 328, 2010, Available at SSRN: [https://ssrn.com/abstract=1824309](https://ssrn.com/abstract=1824309) _._ [14][_Nene v S_](https://www.derebus.org.za/wp-content/uploads/2021/02/Nene-v-S-KZP-unreported-case-no-AR65_2017-4-5-2018-Henriques-J-Chetty-concurring.pdf)[14]_._ [15] _S v Ntuli_ 1975 (1) SA 429 (A. [16] S v Shabalala 1986(4) SA734. [17] Lempe v R LAC (1995-1999) at page 382. [18] Grainger & Allison _'s_** _Diagnostic Radiology_** (6 ed.). Elsevier. 2015. pp. 184–208. Write that **Hemopneumothorax** , or **haemopneumothorax** , is the condition of having both air ([pneumothorax](https://en.wikipedia.org/wiki/Pneumothorax "Pneumothorax")) and blood ([hemothorax](https://en.wikipedia.org/wiki/Hemothorax "Hemothorax")) in the chest cavity. A hemothorax, pneumothorax, or the combination of both can occur due to an injury to the lung or chest. [19] Judith Marcin, M.D. [https://www.bing.com/ck/a?!&&p=c2214f84afa3c81dJmltdHM9MTY4MjU1MzYwMCZpZ3VpZD0yNjc2OTM5ZS01NTgzLTZkMWMtMTQ0OC04MWY1NTQ3ZTZjMDYmaW5zaWQ9NTE5Mw&ptn=3&hsh=3&fclid=2676939e-5583-6d1c-1448](https://www.bing.com/ck/a?!&&p=c2214f84afa3c81dJmltdHM9MTY4MjU1MzYwMCZpZ3VpZD0yNjc2OTM5ZS01NTgzLTZkMWMtMTQ0OC04MWY1NTQ3ZTZjMDYmaW5zaWQ9NTE5Mw&ptn=3&hsh=3&fclid=2676939e-5583-6d1c-1448) _81f5547e6c06 &psq=haemopneum+thorax&u=a1aHR0cHM6Ly93d3cuaGVhbHRobGluZS5jb20vaGVhbHRoL2hlbW9wbmV1bW90aG9yYXg&ntb=1_ #### __Related documents ▲ To the top >