HIGH COURT OF LESOTHO
by the Hon. Mr Justice ML. Lehohla on the 17th day of November. 2000.
wants to tell me what now at this stage?
CC Your Lordship at this stage I would like to draw the attention of
the Court to the fact that we have come to some kind of agreement
with the defence that the accused's state of mind falls within the
ambit of section 166 of the Criminal Procedure and Evidence Act read
together with section 172 of the Criminal Procedure and Evidence Act.
CC Section 166 makes reference to the effect that when an accused
person is called
plead and the court is satisfied thereupon the court will then treat
of section 172 and make an order accordingly.
it appears to the court that the accused is insane?
is so my Lord.
if the court is uncertain that the accused understands a plea, or is
of understanding the proceedings then she should be treated in terms
172; then what does section 172 say.
Section 172 then says the court will then make an order after
as to the state of mind of the accused. The court will then make an
H.L. Have you been able to communicate with her? Supposing I ask her
to stand up will she be able to do that?
DC She is responding sometimes, sometimes she is not responding. I
the court can tell her my Lord.
H.L. What is her name? DC 'Masolo
'Masolo! What's your name?
accused did not reply
Okay, oh well from the.........you have read the report?
my Lord I have read the report
report by the doctor who has since left?
DC Yes I
read it my Lord
H.L. Now I really wonder why the Magistrate didn't act in terms of
the Act because this report was received by the learned magistrate
way back in 1996. Okay sit down. Oh, she understands English.
of 'Mateboho Thoso given on oath.
Are you a relation of the accused?
She is my sister
Blood sister or how? '
We are from the same mother
Well your sister had the misfortune to kill her own child. Do you
Yes my Lord H.L. How old was the child?
Roughly about 2 years.
H.L. Was it a girl or a boy? 'Mateboho: She was a girl
H.L. Was the accused married or what? 'Mateboho: She was once
H.L. How old is she now? Is she older or younger than yourself?
'Mateboho: She is younger than me.
old is she? By how much do you exceed her by age?
She was bom in 1966
Yes, it looks like when in fact the killing of Lerato occurred on
December 1996 the accused was referred for mental treatment or
on the 9th of the same month. Are you aware of that?
Yes my Lord.
Where were you?
'Mateboho: I was where I stay at Morija. We don't stay at the same
place H.L. You were at Morija when she was referred for medical
mental observation? Mateboho: I ask myself whether the observation
was made by the psychiatrist or..........
she was treated by a psychiatrist at Paray Hospital at Thaba-Tseka
'Mateboho: There I was not present
live at Morija?
Yes my Lord
what about her?
lives at Thaba-Tseka, Mohlanapeng.
H.L. Is there anybody there who may have been present when she was
referred to this Paray Hospital?
No my Lord they are not there.
No my Lord they didn't know that they were supposed to be there.
DC The court was trying to find out whether the accused was sent to
mental hospital by application of the family
H.L. Yes this is what I was trying to find out but I want to find
out from somebody who actually knows. You see I have already
indicated to you that the child was killed on the 4th December, 1996,
five days thereafter the accused was referred for mental observation
or treatment. That's fairly close. Isn't it?
H.L. Now tell me who do you think sent her there? Or how did you
come to learn that she was referred to any such?
I learned that she was sent there whilst she was here at the female
because I was asked for her medical history book.
it was demanded of you by the prison staff?
'Mateboho: Yes my Lord and the doctor also
where is it now that book?
It remains with the patient where she is.
takes care of her where she lives when you are at Morija and she
'Mateboho: I cannot say there is a person who has the full
responsibility because she
was living with her kids alone.
Your parents are still alive? Her parents?
No my Lord
said she had been married, what happened to the husband?
Where is the husband now?
I don't know anything about his whereabouts.
Why did they separate?
I think it was misunderstanding between them because they stayed
together for about two years and she returned home, and the parents
H.L. I see, and then the question of communication. You see I asked
her what her name is and she does not tell me. I asked her to stand
up of course she did, I asked her to sit down and she did. Do you
have the same sort of difficulty with her or does she communicate
well with you?
At times this period of silence comes and at times she does things
H.L. Apart from this episode which occurred to her own child do you
know her to have bouts of violence or something towards other
Yes my Lord.
she has bouts of violence?
you want to ask her anything?
DC: Assuming the court finds her guilty and then the court makes
recommendations that she goes to mental hospital, who will take care
of her? May be just to go and see how she is progressing and things
like that? Will you take care to keep and peep to see her whether she
is improving or not?
I will go and visit her.
the time when she strangled her child where were you living?
'Mateboho: I live at Morija, that is where I live for my life.
after the occurrence of this strangulation did you go to Thaba-Tseka
then how soon was that?
The day in between after I had received the report.
Well when you responded to that message, did you find her anywhere
or in prison already?
'Mateboho: When I arrived it was said that she was in prison at
Thaba-Tseka. When I arrived at Thaba-Tseka female prison it was said
that she had been transferred to Maseru female prison.
you go and see her at the female prison Maseru?
'Mateboho: I am going there often.
CC: No I
am saying immediately after she had strangled her child?
'Mateboho: Yes when I came from Thaba-Tseka I went straight to the
female prison CC: And how did you find her on your arrival there?
To my observation she couldn't talk to me or she was the person who
to have no insight of what was happening
have nothing further your lordship.
Counsel read the contents of the report of the doctor.
CC: The contents read as follows and this report was made by one Dr
C.J. Doherty, and it reads as follows :"To the officer in charge
Thaba-Tseka LMP station, Thaba-Tseka Lesotho - Re:'Masolo Mpokoma
patient - Thanks for asking us to assess this patient, who is said to
have strangulated her child to death. The patient, the thirty-two
year old unemployed claimed she killed her two year old child because
of pity, so that the child doesn't die of hunger. On assessment of
the mental state, she lacks judgment, insight and there is mild
mutism. Although the reaction to questioning was appropriate,
reasoning was crossly out of context. The appearance, dressing and
composure were in keeping with a previous diagnosis of major
Psychopsis ( schizophrenia). She was actually admitted to this
hospital in January 1996 for treatment but defaulted. She did take
the follow up treatment ever since. Based on the forgoing, she is a
confirmed psychotic (mentally ill person) Thanks, Yours faithfully(Dr
C.J. Dolerty, Parray Hospital with the rank of Medical Officer)
this report is dated the 9th December 1996. That is all your
Thanks. You want to hand it in?
would like to hand it in your Lordship
will be Exhibit 'A'. So you say that you are agreed that she be
the two sections?
is correct your Lordship
is so my Lord.
H.L. The accused, 'Masolo Mpokoma has been charged with the crime of
murder: in that upon or about 4th December, 1996 and at or near
Mohlanapeng in the district of Thaba-Tseka, she unlawfully and
intentionally killed one Lerato Mpokoma.
accused has not been asked to plead to this charge because it
appeared from the documents in the Court's file, and to the court's
observation of the accused herself that she doesn't seem to be well
upstairs as they say. She remained to glued to her sit when the Court
came into Court, when the Court asked her name, she didn't give it,
however to her credit when asked to stand up she did and when asked
to sit down she did.
that she remained silent without saying anything by way of response
to the Court's questions confirms what the doctor who treated her and
referred to this state of affairs as her 'mild mutism' that's
endeavour by the court or rather before that, both counsel informed
that it would be profitable if the accused were to be treated in
terms of section 166 read with 172 of our Criminal Procedure and
Evidence Act. The court on its par and in an endeavour to find out a
little about her history, called forward PW1 'Mateboho Thoso who told
the Court that she is related to the accused and that the accused is
her sister, and that they are bom of the same mother, and 'Mateboho
Thoso is aware that the accused killed her two year old daughter, a
girl called Lerato.
told the Court that the accused was once married but has since
separated from her husband within two years of such marriage. She
told the Court that the accused was bom in 1966. Although when the
event took place she was not there, she is aware that on 9th December
1996 the accused could have been undergoing mental treatment, she is
inclined to this view because when she responded to the message that
the accused had killed her daughter on the 4th December 1996, a
matter to which she responded by going to the accused's home within
two days of receiving this message, she was asked for the accused's
medical book by a doctor who was treating the accused, in
collaboration with the prison authorities. This is how she got to
know that the accused had been referred for mental treatment.
the Court that the accused was living alone with her kids and that
has full responsibility towards her, as their parents are no longer
alive. She indicated that the accused has got this habit of remaining
quiet even when she is being spoken to, and that she has bouts of
violence towards other persons. She confirmed that even when she went
to see her in prison, there was no communication between the two
despite her attempt to let the accused speak to her.
in brief the evidence that has been adduced today.
the law, section 166 of our Criminal Procedure and Evidence Act reads
as follows :
"If when the accused is called upon to plead to a charge, it
appears to be uncertain for any reason whether he is capable of
understanding the proceedings at the trial so as to be able to make a
proper defence, a procedure prescribed by section 172 shall be
procedure under that section, that is 172 subsection (2) reads as
"If the court finds the person charged with an offence insane or
mentally incapacitated pursuant to subsection (i), the judicial
officer presiding at the trial shall record such verdict or finding,
and shall issue an order committing such a person to some prison
pending the signification of Kings Pleasure".
already indicated that the accused was not asked to plead, only if
she had been asked to plead, would a verdict come announcing her
either guilty or not guilty, but as it is the court finds that she is
incapable of following the proceeding because of her mental
Doherty whose medical report has been made part of this proceeding
marked Exhibit 'A' has indicated that the accused suffers from mental
disease, and among other things, she/he has indicated that previous
diagnoses of this patient manifests a major psychosis known as
(schizophrenia) indeed criminal jurisprudence has had to deal with on
many occasions, people who suffer from schizophrenia. One notable
person was, in this regard, a man who has since died, not so long ago
called Tzaffendas noted for having killed the Prime Minister of South
Africa Dr Verwoerde.
the things that one gathers from people who suffer from this type of
thing is that they at times behave perfectly normally, and one thing
that the doctors and psychologists are at one with regarding
schizophrenia is that they have no sense of shame whatsoever, they
are not guilt-ridden, they can kill the whole host of people here and
manifest no regret whatsoever.
So it is
in this regard that the only place which would ensure the safety of
the community while at the same time not punishing, because courts
can only punish commission of crime but not punish people who have
not been convicted is to refer them to an institution pending
signification of the King's Pleasure. It is for this reason therefore
that acting in terms, of section 172 subsection (2) of our Criminal
Procedure and Evidence Act I order that the accused by virtue of her
mental illness be kept in some prison pending the signification of
the King's Pleasure. That will be the judgment of this Court.
: Mr Hoeane
Defence: Mr Lesuthu
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