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     The applicant says that he did not apply for the rescission

of the judgment in CIV\T\27\85 as the first respondent instituted

another action which was based on the Deed of Hypothecation under

CIV\T\586\85   in which the first respondent    lost.    What   the

applicant is saying does not make sense because the default

judgment in CIV\T\29\85 was obtained in February, 1985. The writ

of attachment was served on him on the 23rd February, 1985. The

judgment in CIV\T\586\85 was delivered cm the 28th November,

1985, that is to say about nine months after the first respondent

obtained his judgment in CIV\T\29\85.   I am of the view that the

two cases are distinct from each other.

     Mr. Geldenhuys submitted that it is therefore clear that the
applicant had knowledge of the default judgment since at least
April, 1985 and that the present application was only launched
in November, 1988.   He submitted that there is therefore no way
the application can be entertained in terms of the Rules of
Court.   I entirely agree with him.

     In Nqoko v. Morreira 1976 L.L.R 137 at p. 139 Mofokeng,

          "neither could Mr. Karim explain to this
          court why the applicant remained inactive
          even after his motor car had been attached
          for if he had not been aware of this action
          by the respondent, surely by that act of the
          Deputy Sheriff he must have become fully
          aware that judgment had been obtained
          against him and if he was serious enough

            about the matter he could have immediately
            caused the court to be approached. But he
            remained inactive and at the eleventh hour,
            when he realises that the sale of execution
            is about to take place in a day's time, he
            applied for rescission of judgment and
            expects, in all honesty, the court to grant
            him   the  application   and or    stay of

            The applicant has not placed before this
            court sufficient evidence from which it can
            infer that he has a bona fide defence to the
            action.    It is not sufficient for the
            applicant to content himself with merely
            saying that he has a bona fide defence. In
            this respect it is sufficient if he set out
            averments which, if established at the
            trial, would entitle him to the relief asked
            for. He is not required at this stage to
            deal with the merits of the case or even to
            produce evidence that the probabilities are
            actually in his favour. (Frant v. Plumbers
            (Pty) Ltd 1949 (2) S.A. 470 (0) (Curlewis v.
            Visser, 1964 (l)P.R. f.5)."

     In the instant case the applicant remained inactive for
about nine months before he applied for rescission of a default

     The defence of the applicant as I understand it is that the

action in CIV\T\29\85 ought to have been based on the Deed of

Hypothecation,    I am of the view that that is not a bona fide

defence.    The applicant says that there is a confusion on the

part of the first respondent, but this aspect of the matter is

set straight by the first respondent in paragraph 12 of the

answering affidavit.

           " I most     vehemently    deny    that     the   first

           respondent has confused these accounts.              On

           the contrary, it is the applicant who has

           attempted    to confuse    this entire matter.

           This is a very simple situation where both

           accounts     have   been   placed        before   this

           Honourable Court for resolution."

     The dealings between the applicant and the first respondent
are again expounded      in paragraph 6 of           the 1st    respondent's
opposing affidavit in these words:

     "It is perfectly correct when the Applicant states that

there were two overdraft       accounts with the Applicant.             The

history of the trading activity with the Applicant is as follows:

     (1)   Initially,    the   Applicant      was     granted   a

           personal overdraft;

     (2)   Thereafter, an overdraft was granted to the
           Applicant trading as "Lucky Shoes" and it
           was   this   overdraft\loan       that     eventually
           culminated in the judgment against which the
           Applicant is now seeking an interdict and a
           rescission thereof;

      (3)   The personal overdraft which had initially

            been granted was expanded and negotiation

            led to an arrangement for a fresh loan with

            the applicant, in terms of which a Deed of

            Hypothecation would be executed in the sum

            of M20,000.00     (Twenty Thousand Maloti) in

            order to cater for the Applicant's increased

            needs.    In the result, two personal accounts

            existed    and   both   personal    accounts    were

            relegated by the First Respondent and had

            nothing to do with the "Lucky Shoes Account,

            and handed over for collection by the Bank's

            Attorneys, Messrs Harley & Morris,

Your Lordships will notice that in respect of the first account,
action was instituted under Civil Trial 205\1986 and this matter
is still pending.      In respect of the second account, being the
Applicant t\a "Lucky Shoes", final judgment was granted by this
Honourable Court under Civil Trial 29\85 on or about the 4th day
of February 1985, a true copy of the Order of Court, is attached,
hereto, marked "b"."

      The explanation given by the first respondent appears to me

to   be   satisfactory.       CIV\T\29\85      was   not   withdrawn   when

CIV\T\270\85 was withdrawn for the simple reason that a default
judgment had already been obtained.                  It was for a different
amount which was not covered by the Deed of Hypothecation.              The
mere fact that the security was to the tune of M20,000 does not
necessarily mean that the business account of the applicant was

     The General Power of Attorney dated the 28th April, 1988 is
being challenged by the applicant on the grounds that:

     "(a) That     RICHARD      JOHN   LYNTON TUCKER         has   no
            authority      to    depone        to    the    opposing
            affidavit as the General Power alleged to be
            authority is not a sufficient authority as
            it is coached in a general term;

     (b)    That said MR RICHARD JOHN LYNTON TUCKER had
            deponed to an opposing affidavit alone while
            in the General Power of Attorney he can act
            jointly      with    another       person      appointed

     (c)    That   the    General      Power    of    Attorney     is
            granted to MR. RICHARD JOHN LYNTON TURKER
            with others by Barclays Bank International
            Limited of London in England not by the

         company Barclays Bank which is registered in

         accordance with the Laws of Lesotho."

    In Mall (Cape) (PTY) ltd. v. Merino Ko-operarie BPK, 1957

(2) S.A. 347 at pp. 351\352 Watermeyer, J. said:

     "There is a considerable amount of authority for the
    proposition    that,   where   a   company   commences
    proceedings by way of petition, it must appear that
    the person who makes the petition on behalf of the
    company is duly authorised by the company to do so
     (see for example Lurie Brothers Ltd v. Arcache, 1927
    N.P.D. 139, and the other cases mentioned in Herbstein
    and van Winsen, Civil Practice of the Superior Courts
    in South Africa, at pp. 37,38). This seems to me to
    be a salutary rule and one which should apply also to
    notice of motion proceedings where the applicant is an
    artificial person. In such cases some evidence should
    be placed before the Court to show that the applicant
    has duly resolved to institute the proceedings and
    that the proceedings are instituted as its instance.
    Unlike the case of the individual, the mere signature
    of the notice of motion by an attorney and the fact
    that the proceedings purport to be brought in the name
    of the applicant are in my view insufficient.      The
    best evidence that the proceedings have been properly
    authorised would be provided by an affidavit made by
    an official of the company annexing a copy for the
    resolution but I do not consider that that form of
    proof is necessary in every case. Each case must be
    considered on its own merits and the Court must decide
    whether enough has been placed before it to warrant
    the conclusion that it is the applicant which is
    litigating and not the unauthorised person on its
    behalf. Where, as in the present case, the respondent
    has offered no evidence at all to suggest that the
    applicant is not properly before the Court, then I
    consider that a minimum of evidence will be required
    from the applicant (cf. Parsons v. Barkly East
    Municipality, supra, Thelma Court Flats (Pty) Ltd. f.
    McSwigin, 1954 (3) S.A. 457 (c).

    I proceed now to consider what the applicant has put
    before the Court in the present case. de Witt, the

     secretary of the applicant Society, states in para.2
     of his affidavit: "I am duly authorised to make this
     affidavit.: Mr, Knight, for the applicant, submitted
     that, although it was not specifically so stated by de
     Witt, it was clear from para. 2 that it was the
     applicant Society which has conferred authority upon
     him. That inference is, I think, irresistible. Mr,
     Knight submitted next that the use of the word "duly"
     shows that the authority conferred upon de Witt had
     been properly conferred, i.e. that all the necessary
     formalities prescribed by the applicant Society's
     constitution had been complied with.        With this
     submission I am also in agreement."

     The learned Judge made it quite clear that the form of proof
of providing an affidavit made by an official of the company
annexing a copy of the resolution is not necessary in every case.
In fact in the case in question the learned Judge had only an
affidavit made by the official of the company who deposed that
"he was duly authorised" to make the affidavit by his company.
It was held that it was clear that it was the company that was
litigating and not an unauthorised official.

     It was held that as the respondent had offered no evidence
at all to suggest that the applicant is not properly before

Court,   then   a   minimum   of   evidence   was   required   from   the


     In the instant case we have a copy of a General Power of
Attorney which was properly executed in London by the applicant.
It is registered under No.20846 in the Deeds Registry,           Maseru
under the Deeds Registry Act 1967.            It confers authority on

several of its officials here in Maseru Including Mr. Richard
John Lynton Tucker who made the opposing affidavit in the instant
case.     The authority given to these officials is clearly set out
in the first paragraph of the General Power of Attorney and
particularly in Articles 1 and 5.

        The General Power of Attorney in question legally binds the

first respondent.      There is no way in which it can turn around

and deny its obligations arising from it.             In CIV\T\586\85 a

similar General Power of Attorney was used. The first respondent

lost and paid the costs without any hesitation.                  The first

respondent cannot be heard to say that in the present case it

gave no authority to Mr. Tucker and the other officials named


     Mr. Matooane, Counsel for the applicant, referred me to the
case of R.T. Morrison v. Belle, 1981 (1) L.L.R. 206 in which it
was held that a document which purported to be a general power
of attorney giving authority to institute proceedings on behalf
of the company to one Mr. Smith was rejected.                  The headnote
reads:     "The absence of a properly worded resolution (where a
company     is   purported   to    be   the   initiator   of    an   action)
authorising      the application proceedings being refused."             The
learned Acting Chief Justice purported to derive the authority
from Mall's case - supra.         As I have stated above in Mall's case

there was no resolution giving authority to the official in

question and there was no general power of attorney.              However,

the Court relied on an affidavit made by that official who said

he was duly authorised to make the affidavit.

        In an earlier case of Tbelma Court Flats (Pty) Ltd. v.
McSwigin, 1954 (3) 357 (C) at p. Watermeyer, J. agreed that 'in
cases of this nature it would be wiser for a director in his
supporting affidavit        to make a specific allegation that the
company    has   resolved    to   institute   the   proceedings   and    has
authorised him to make the affidavit on its behalf'. But despite
the absence of such an allegation in either of the two supporting
affidavits made by a director of a company, held that in view of
the presence of certain allegations and factors in that case, it
would be carrying formality too far to uphold a point in limine
that ex facie the documents filed it did not appear that the
application was duly authorized by the applicant company.               (See
Dawaon & Dobson Ltd. v. Evans & Kerns (Pty) Ltd., 1973 (4) S.A.

        In the instant case there is a General Power of Attorney
duly executed by the first respondent whose terms are very clear.
It is clear that Mr. Tucker and the other officials were duly
authorised to defend this application and to make the opposing

     There is no substance in the submission that Mr. Tucker has

deposed to an affidavit alone while in the General Power of

Attorney he    can only act         jointly with another person named

therein.   In the first paragraph of the opposing affidavit Mr.

Tucker says:

           "I am the Maseru Branch Manager of the first

           respondent and I am duly authorised to make

           this     affidavit       on   behalf    of   the   first

           respondent in terms of a General Power of

           Attorney signed at London on the 28th day of

           April,     1988,     a    true   copy   of   which   is

           attached     hereto,          marked    "A"."        (My


     The use of the words            "in terms of a General Power of
Attorney" means that he jointly acted with the people with whom
he is supposed to work or to decide to institute or to defend an
action against the first respondent.               It was not necessary to
allege that I act jointly with so and so.               It is enough to say
in terms of a General Power of Attorney.

     The applicant has not given any evidence that Mr. Tucker did

not act jointly with one or some of his colleagues mentioned in

the General Power of Attorney.

     It is quite       correct   that Barclays Bank PLC, Maseru is

registered in accordance with the laws of Lesotho.      It also quite

clear from the papers before Court that it is just a branch of

Barclays Bank PLC in London.        It has no Board of Directors here

in Maseru.

     In the result the application is dismissed with costs.

                             J.L.     KHEOLA


                            31st May, 1993.

For Applicant      -     Mr. Matooane

For Respondent     -     Mr. Geldenhuys.

      IN     THE     HIGH        COURT         F
                                              O " LESOTHO

In the matter between:

R     E      X


SEKHOAHLA               NEHELO                           Accused

          Delivered by the Honourable Mr. Justice J.L. Kheola
                     on the 28th day of May. 1993.

      The accused is charged with the murder of Kabelo Rantso on
or about the 10th day of June, 1990 and at or near ha Mohasi in
the district of Leribe.

      He pleaded not guilty to the charge.

      The defence     admitted   all   the depositions   of   the   Crown
witnesses at the preparatory examination except the deposition
of P.W.3 Malefetsane Mothetsi.

      P.W.3 testified that on the day in question he visited his
aunt for the whole day.     At about 11.00 p.m. he returned to his
parents' home.     On hie way be found the accused and the deceased
fighting with each other near the home of the accused.        They were
                                                                   ' 2
fighting with sticks.        The accused was in his yard and the

deceased was outside.    The accused's yard is not fenced with the

usual barbed wire but with long poles which are at right angle

to the vertical     posts.     The accused   and   the deceased   were

separated by the poles but were very close to each other as they

exchanged blows with the sticks.       The accused was saying: "I

shall kill you, it is a long time since you started troubling


       P.W.3 says that he became frightened and hid himself behind
a tree and watched the fight from there.      The fight with sticks
continued for some time until the accused produced a spear-like
weapon and stabbed the deceased with it on the chest. The latter
fell down.    The accused had been holding the spear-like object
in his left hand and a stick in the right hand.       Just before he
stabbed the deceased he      transferred the stick to the left hand
and held the spear-like object in the right hand.        That weapon
was about a metre long.

       After the deceased had fallen down the accused jumped over
the poles and went to him.     He took out a knife and stabbed him
many times.     P.W.3 did not count how many times the accused
stabbed the deceased after the latter had fallen down.            The
deceased was just lying there and making no movement when the
accused was stabbing him.      After that he jumped over the poles

into hie yard and went to hie house.    He brought a torch and lit

up the deceased and said:       "'Mamapepe, I have killed him."

'Mamapepe is the accused's wife but she was not there when the

accused uttered those words.    He went back to his house and then


     P.W.3 says that he went to the home of one Moeketsi who is
the neighbour of the accused.   He was going to report to him what
had happened.    He found Moeketsi standing at the door of his
house.   Even before he made his report, Moeketsi said that he had
seen what happened.    They both proceeded to the home of P.W.I
Karabo Motjetsi for the purpose of reporting what had happened.
On their way they met one Neo who took them back to the deceased.
Neo confirmed that the deceased was dead.   From there P.W.3 went
to his home and slept.

     The evidence of P.W.I Karabo Motjetsi is to the effect that
on the day in question there was a feast at his home.   Late that
evening he found the accused and the deceased sitting down in one
of his houses.   He listened to their conversation and heard that
they were exchanging insulting words.    Because he knew that the
accused and deceased were very troublesome people who always
quarrelled with each other, he expelled them from his premises.
They left. During the night an alarm was raised and the deceased
was found dead near the yard of the accused.    In order to reach

his place the deceased did not have to pass there where he was

found dead.

       P.W.2 Dr. Brissi He Schusster testified that on the 13th

June, 1990 he performed an autopsy on the body of the deceased.

He formed the opinion that death was due to haematothorax (left)

caused by a stabwound; the left lung was lacerated.   The deceased

had multiple stabwounds on the head, face, left chest side and

back side cheat.

       P.W.4 Kokoana Motjeketjane deposed that on the night in

question the accused came to his home and reported that he had

killed a person and that that person was in the graveyard.

       P.W.5 Detective Trooper Chabalala deposed that on the 10th
June, 1990 he went to ha Nkhasi and was shown a dead body of a
male person identified as the deceased in this case. He examined
it and found the following wounds: a wound above the left eye,
one on the left ear, one on the neck, ten wounds on the left
ribs, eight wounds at the back and two wounds on the head.     He
carried the dead body to the mortuary.

       P.M.6 Police Woman Nkoro testified that on the 10th June,

1990    was on duty at Hlotse police station when the accused

reported himself to her and gave her a knife.     He said he had
killed a person with that knife.

        The accused gave a sworn statement to the effect that on the

10th June, 1990 he went to a feast at the home of Ncheme. He was

given some food and while he was eating the deceased came and

started grumbling.     He ignored him because he always behaved in

that manner whenever he saw him.     Later that afternoon that the

accused received a message a friend at Lekhaloag wanted to see

him immediately.     Re left for Lekhalong accompanied by a woman

who was a visitor in the village.     On their way he deviated and

went into the donga to relieve nature.       While he was there he

heard the woman screaming.     He rushed back to where he had left

the woman. The deceased was chasing the woman. The accused says

that he intervened and stopped the deceased from harassing the

woman.     Surprisingly instead of continuing with his journey to

Lekhalong he returned to P.W.1's place leaving the deceased with

that woman because it turned out that she was his lover.

        The accused returned to P.W.1's place and he was given some
beer.    He sat down and drank it. The deceased suddenly appeared
and insulted him and asked him to come aside.       He sat down and
drank it.     The deceased suddenly appeared and insulted him and
asked him to come aside.     The people who were sitting with him
stopped the deceased from causing trouble. The accused says that
he was hurt by the behaviour of the deceased.      He went into the

house and found Ngaka and Lebusetsa sitting on a bench.     He sat

between them. He was given some beer. While he was drinking his

beer the deceased came into the bouse.       He caught him by the

shoulders and raised him up.     He said he (accused) should come

out so that he (deceased) can beat up his small belly.       Ngaka

intervened and reprimanded the deceased.       When P.W.I came he

expelled them from his premises.     It was at about 10.00p.m.

       The accused says that when he left for his home the deceased
followed him and kept on insulting him. When he came to his yard
he went to the gate.     The deceased jumped over the poles which
form a fence around the yard and intercepted him before he came
to the house.    The accused went to him and pointed his stick at
him.     The deceased reacted by delivering a stick blow at him.
A fierce stick fight ensued.    One of the blows delivered by the
accused landed on the head of the deceased and caused an open
wound.    The deceased retreated and jumped over the fence to the
other side.     The accused remained inside the fence and checked
the wounds he had sustained.

       The deceased produced a hat from his pocket and wiped off

the blood from his head.    He looked at the hat and cried out and

said: "Am I like this".      He insulted the accused and rushed

towards him. The accused says that he felt frightened and nearly

ran away.    However, he did not do so although he had the chance.

They were again engaged in a savage fight with their sticks.

Accused landed another blow on the head of the deceased.               He

(deceased) retreated and took the path leading down the slope.

He took about three or four steps and put his hand in his pocket.

He took out a knife which was already unclasped. He came rushing

towards the accused.

     The accused says that he struck the hand holding the knife.
It fell down outside the yard.      They both rushed for it. But the
accused came to it first and took it.            The deceased came and
jumped on to his right upperarm.         He thrust the knife at him and
stabbed him on the chest.      The deceased turned and it appeared
as if he was looking for something on the ground.         He sat on the
ground.    The accused says that he did not continue the fight
after the deceased sat down.       He went to his house and reported
to his wife.   He     took a blanket and a torch and went to the
charge office. He gave P.W.6 the knife and the stick. He denies
that he repeatedly stabbed the deceased after he sat down.             He
denies that he stabbed him with a weapon which looked like a

     The   evidence   of   P.W.3   who   is   the only   eye-witness   is
challenged on the ground that it is unreliable. It was submitted
that if he was there the natural reaction by him would have been
to raise an alarm.     He did nothing but merely watched the fight

from behind a tree where he was hiding.             At the relevant time

P.W.3 was only about 19 years old.       He was still a youth and not

mature enough to be expected to make wise decisions when he is

confronted with an emergency,       I am of the view that he did his

beet   by   reporting   the   incident   to   the   accused's   neighbour

immediately after the end of the fight.

       I had a very good impression of P.W.3 as a witness and that
he was truthful and honest.         He gave his evidence well and
answered questions put to him in a satisfactory manner.           In any
case his evidence is to some extent corroborated by that of the
accused. He came to the scene of the fight after it had started.
He says that the accused was inside the yard and the deceased was
outside.    In other words during the stick fight the combatants
were separated by the fence.         This part of his evidence is
corroborated by the accused.       It is inconceivable how he could
make up such a story unless he saw the fight.

       P.W.3 says that the accused used a weapon which resembled
a spear to stab the deceased on the chest.          I am of the view that
there is substance in his evidence. When two people are fighting
with sticks and there is a fence separating them from each other,
it is almost impossible to extend one's arm and stab the other
person with a knife.     The other person would be about two paces
away where he cannot be reached by hand.        Moreover, the accused

would have exposed himself to serious danger to his head when he

extended his right arm leaving his head exposed.           However, with

a spear-like weapon which was about one meter long it would be

very easy to reach out for the target.

     Regarding the number of injuries inflicted by the accused

with the knife, the evidence of P.W.3 is corroborated by the

doctor who performed the autopsy and the police officer who

examined the dead body of the deceased.             There were well over

twenty   stabwounds    on   the   body   of   the   deceased.   This   is

consistent with the evidence of P.W.3 that after the deceased had

fallen down the accused took out a knife and stabbed him many


     On the other hand the accused has told the Court nothing but
a pack of lies.       On the question of injuries he says that he
stabbed the deceased on the chest once and left him sitting down.
This is a lie.    He was seen by P.w.3 when he jumped over the
fence and stabbed the deceased numerous times. When he is asked
to account for the numerous wounds found on the dead body, he
boldly says that that question can be put to P.W.3 who remained
with him.   I think that is an unsatisfactory explanation after
P.W.3 has explained what happened.

     His explanation of how he got the possession of the knife
is not only improbable but false beyond any reasonable doubt.

He says that as the deceased came towards him with a knife in his

right hand, he struck that hand holding the knife with his stick.

It fell outside the yard.   They both rushed at it.    He was so

quick that he reached the knife before the deceased did so. That

is improbable because the knife fell on the deceased's side of

the fence.    He   (deceased) would have reached it before the

accused did so.

     Another lie that the accused has told this Court is that in
the stick fight he was the victor because he managed to land
about two blows on the head of the deceased at different times.
The doctor found no lacerations on the head but stabwounds.     A
stick cannot cause a etabwound when the blows are delivered in
the manner   the accused described.   There ought to have been
lacerations on the head.    This again confirms the evidence of
P.W.3 that the infliction of the wound on the cheat was the cause
of the deceased's fall.

     I shall now deal with the question of self-defence because
what the accused is saying is that he was defending himself
against an unlawful attack within hie premises.   I have already
rejected bis story but even if his story were to be believed I
am of the view that self-defence is not available to him.
In Gardiner and Lansdow's Criminal Law and Procedure, Vol.2.p.

1413, the following propositions, based on authority, are stated;

we quote in so far as they are relevant to this case.

          "Where a man can save himself by flight, he
          should flee rather than kill his assailant.
          So think Matthews (48,5,3,7,) and Moorman
          (2.2.12)    and   see     also   van   der   Linden
          (2.5.9); R.v.Odgers (1843) 2 Mood & R. 479;
          R.v. Smith (1837) 8 C&P.160: but Danhounder
          (c.72) with his ideas of defence against
          dishonour, is of the contrary opinion.           But
          no one can be expected to take to flight to
          avoid an attack, if flight does not afford
          him a safe way of escape.             A man is not
          bound to expose himself to the risk of a
          stab   in   the   back,   when   by    killing   hie
          assailant he can secure his own safety...
         Moorman      (2.2.12);     van    Quistory,   para.


          In considering the question of self-defence,

          a jury must endeavour to imagine itself in

          the position in which the accused was"."

    In the instant case and according to the accused's version

there were two occasions when he had ample chance to flee.       He

says that he had nowhere to (lee to because the attack was within

his own premises.     The first occasion is when he

 allegedly struck the deceased on the head with a stick at the

time they were fighting in the yard.    He says that the deceased

retreated and jumped over the fence.    He took out a hat from his

pocket and wiped off the blood from his head.    He then looked at

the blood on the hat and then rushed at the accused.     I am of the

view that the accused had ample chance to flee when the deceased

retreated and jumped over the fence and took out a hat from the

pocket, looked at it and then started the attack again.           The

accused could have fled and could not have exposed himself to

risk of a stab at the back because the deceased was far from him.

He had to jump over the fence before he came to the accused.      The

accused seems to be under the impression that he could not be

expected to run away from his own home. That is not what the law

says.     The law is that where a man can save himself by flight,

he should flee other than kill his assailant.

        The   second occasion was when again   the   accused   landed
another stick blow on the head of the deceased. The blow had the
desired effect because the deceased turned and walked along the
path that goes down the slope.     He was walking in a direction
leading away from the accused.    When he was a few paces from the
accused he took out a knife from the pocket and again attacked
the accused who was still on the other side of the fence.         The

accused had ample chance to run away to save himself. He did not

do so because he thought the accused would set his houses on fire

or kill his children.            That is sheer speculation because the

accused was fighting with the accused and not his children.                   He

never had the intention to set accused's houses on fire.                   If he

had such an intention he would have gone there at night when the

accused and hie children were asleep.

       If the accused was protecting his dignity, our law does not
allow him to do so. If there is a chance to flee without putting
his life at risk he must do so.              I have found that the accused
had such a chance on two occasions before he fatally wounded the
deceased.     But as I have said above the story of the accused is
nothing but a pack of lies.

       According to the evidence of the doctor who performed an

autopsy     upon    the body     of   the deceased       there   were   multiple

stabwounds on the left side of the chest.                   Detective Trooper

Chabalala counted ten stabwounds on the left side of the chest.

It is common cause        that only one stabwound on the chest was the

cause of death.

       Mr. Mathafeng, counsel for the defence, submitted that the

first stabwound which incapacited the deceased forcing him to sit

down   or   to     fall   down   according    to   the   Crown witness, was
inflicted under the circumstances which justified self-defence.

I have stated above that the present case is not a case of self-

defence.   If two people are separated by a fence consisting of

poles they cannot be heard to say they had not chance to flee in

order to save their lives.   The accused and the deceased could

have saved their lives by flight without exposing themselves to

a stab or a blow at the back.   The deceased did retreat and jump

over the fence without any fatal consequences.   He did turn and

walk away without any fatal consequences to himself. The accused

had every chance to do the same.

     In the result I come to the conclusion that the accused had

the intention to kill the deceased in the sense that he foresaw

the possibility that his actions may cause the death of the

deceased but he was reckless as to whether death occurred or not.

     For the reasons stated above the Crown has proved its case
beyond a reasonable doubt. The accused is found guilty of murder
as charged.

     My Assessors agree.


                             28th May, 1993.

For Crown     -    Mr. Ramafole

For Defence    -   Mr. Mathafeng.

                        EXTENUATING CIRCUMSTANCES

     It is trite law that absence of factors justifying a finding
of dolus directus is an extenuating factor.            In the present case
I found that the intent of the accused was dolus eventualis. See
R. v. Sigwahla, 1967 (4) S.A. 566 (A.D.) at p. 571.

     I also found       that there was no premeditation which is
closely linked to the absence of dolus directus and presence of
provocation as extenuating circumstances.

     Mr.    Mathafeng    submitted   that   if   the    accused   kills   in
circumstances which do not justify killing in self-defence but
honestly believing his conduct to be justified, his belief may
be an extenuating circumstance.        See R. v. Werner and another
1947 (2) S.A.828 (A.D.) at p. 837; R.v. Kgau 1958 (2) S.A. 606
(S.W.A.).     In the instant case the evidence of the accused
establishes beyond any doubt that he honestly believed that his
conduct was justified. The deceased was a troublesome person who
followed the accused and attacked him near hie home.
     I find that there are extenuating circumstances.

Sentence:    Seven (7) years' imprisonment.

    My assessors agree.

                      J.L.       KHEOL.A
                         28th May, 1993.

For Crown:   Mr. Ramafole
For Defence:   Mr. Mathafeng.