HIGH COURT OF LESOTHO
by the Honourable Mrs Justice Hlajoane Acting Judge on 28 Day of
came before me on the 18th September, 2001only for mention. On
looking at the Preparatory Examination record I learned that the
alleged offence was committed in 1991,10 years and some months ago,
and the Preparatory Examination held in 1992. The Accused was
committed for trial by the High Court in 1996 and the record of
Preparatory Examination and the indictment only came to the High
Court in 1999.
case was put before me for mention, the accused and his lawyer were
not before court but only the Crown and one witness.
I had to
stand down the case to the afternoon as the Crown thought that
because of snow in the mountains witnesses from Thaba-Tseka might
still be trapped by snow. The minute in the Court's file showed that
the Accused was before Court on the 28th March, 2001 when his bail
was forfeited to the Crown and Accused obviously must have as a
result been remanded into custody.
Registrar was therefore instructed by the Court to trace the Accused
by phoning the Central Prison and also requesting the Legal Aid to
appear in the afternoon at 2.30 p.m.. Apparently the Accused had been
in Prison and was not informed of the date for mention.
Accused made his appearance in the afternoon from Prison, his lawyer
and the witnesses also showed up. The case was then postponed to the
September, 2001 for hearing.
proceeded on the 19th September, 2001, wherein the charge of murder
was read to the Accused , The Accused being charged of murder of
Mambango Mpenge. It being alleged that on or about the 20th day of
February, 1991 and at or near Ha Boomo in the district of Thaba-Tseka
he unlawfully and intentionally killed Mambango Mpenge.
Accused pleaded not guilty to the charge and Mr Molefi for the
Accused showed that the plea was in accordance with his instructions.
The plea of not guilty was accordingly entered. The defence showed
that he had read the Preparatory Examination record and were
admitting all the evidence in the Preparatory Examination record.
This he showed was by agreement with the Crown, and Ms Mofubelu for
Crown told the Court that she accepted the admissions. It was
therefore not necessary for the witnesses to go in the witness box.
The depositions of the six Crown witnesses at the Preparatory
Examination plus the post-mortem report were accordingly admitted in
evidence. The depositions were thus read into the machine.
evidence, 'Masethole Mpenge was to the effect that; she lived at Ha
Boomo. She knew the Accused as he was her son, and the deceased was
her daughter-in-law. She received a report in January, 1991 about the
quarrel between the Accused and the deceased over their newly born
child. That according to the Accused the child was expected to be bom
in April, 1991 but it had been born in January, 1991. There had been
a family meeting held prior to the child's birth. That it was on the
13th January, when deceased came to tell her of their quarrel over
the child. The witnesses went and fetched the child same day.
a family meeting on the 14th called by P.W.1's husband. In that
meeting the Accused told his father that he had no intention to fight
but that the deceased had told him that she was not sure as to who
had impregnated her between one Sekatana and Motanyane. That was why
he assaulted the deceased. It was during the assault that the
deceased told the Accused that in fact the child's father was
Sekatana. The Accused then said he stopped assaulting the deceased.
They then sat down and named the child Puleng.
Accused then asked his parents to release the deceased to him as he
had forgiven her. The deceased and the child were thus released to
the Accused. The
went back to work on the 15th leaving the deceased still alive. On
Sunday when she examined the deceased she found whip weals on her
back. The deceased passed away on the 17th in her mother's presence
and one 'Mathusi. The matter was reported to the Chief who in turn
reported to the police. The police came same day and asked that the
body be carried away. It was only carried away on the 18th. Evidence
showed that the body did not incur further injuries on the way.
to P.W.2's evidence Mohlakola Mpenge the father of the Accused and
father-in-law to the deceased, Accused had asked for a family meeting
in January 1991 to discuss something relating to him and his wife.
The meeting was held and in that meeting Accused showed that the
deceased was pregnant, and the deceased admitted and claimed the
Accused to be the father. Accused admitted when deceased showed that
the child would be due in April. But the child was born in January.
Another family meeting was held and the deceased was questioned about
the child's father and deceased mentioned Sekatana and Motanyane.
evidence P.W.2 showed that a letter was written calling deceased's
parents who neither came nor responded. The deceased called P. W. 1
to her place on the night of the 13th to report that they had
quarrelled with the accused and that
had assaulted her with a plastic whip. On examining the deceased he
observed that she had weals on the arm and behind the ear. The
witness here did not mention which arm had weals. P. W. 1 had also
examined the deceased and confirmed that she had been whipped. The
Accused left for work o the 15th. P.W.2 visited deceased's home on
the 16th and found her seated and suckling her child. Deceased's
mother also came the same day in the afternoon. He heard of
deceased's death on the 17th and he went to deceased's place to
confirm the information. Police arrived same day but since it was
already late the dead body was taken away the following day, the 18th
Police had examined the body before it was taken away.
the one who identified the dead body to the doctor. The witness
handed over a whip to the police which had been shown to him by the
deceased who also explained about it.
sister to the deceased 'Mathusi Mateka who was P. W.3 at the
Preparatory Examination had shown that, she had received a report in
January 1991 from the accused and following that report she went to
deceased's place. The deceased gave birth to a baby girl when she was
there and Accused was informed about the birth of the child. On being
asked about the child's father, deceased mentioned a man from
as the father. Accused then expelled the deceased from home and the
deceased with P. W.3 went to P. W.2's home. The witness went back to
her home only to come back when the deceased had gone back to her
evidence showed that, as she examined the deceased when she arrived
she noticed weals all over the deceased's body at the back. The
record shows the deceased was unable, which in Sesotho is (o ne a
hloleha) meaning very sick. The witness went back home to report to
deceased's parents. She came back the following day with deceased's
mother. The deceased had asked her and their mother to help her wake
up to get her seated. She passed away in the process. Prior to her
passing away, the deceased had told her that the accused had
assaulted her. The fourth witness at Preparatory Examination was
'Matiisetso Feane, the deceased's mother. She had gone to deceased's
home following the report from P.W.3 in January, 1991. When she got
there she noticed that deceased had been badly injured at her back,
on the knees and foot, though not stated which foot. She had arrived
on Wednesday evening and the deceased passed away on the morning of
the following day.
evidence of P. W.5 Mafehlo Mpenge, the Accused's brother, was to the
that indeed deceased and the Accused were man and wife. He had been
to the family meeting concerning the deceased and the Accused on the
invitation of P. W.2. The quarrel was about a child already born
between them. They failed to talk the accused over into accepting the
child. The following day as he was getting himself ready to visiting
the deceased he heard someone crying from deceased's place. When he
got to the place he learned that the deceased had passed away. The
matter was reported to the chief and to the police. On police arrival
the body was examined and he learned of injuries on her body at the
back. He too identified the dead body before the post mortem was
performed. P.W.1 handed over the plastic whip to police. The body was
only transported the following day and did not incur any further
injuries on the way.
Police Officer who attended the Scene of Crime was No.4745 D/Trooper
Ramone as he was then stationed at Thaba-Tseka attached to C.I.D.
branch. He showed that following the report he visited the scene in
January, 1991 and found a dead body of a woman in a rondavel. On
examining the body he noticed weals all over the body which seemed to
have been caused by a whip. He carried the dead body to Sehong-hong
Mortuary. Accused was not there and the chief handed over to him a
green plastic whip. The body did not sustain any further injuries on
mortuary. Evidence of another Police Officer was that of No. 2711
Lance Sergeant Chakache, who showed that he was working at Mashai in
1991 and that on the 3rd February, 1992whilst on duty Accused
surrendered himself to him. He had already received some information
about him prior to his surrender. The accused handed over to him a
green plastic whip and explained about it. Following his explanation
he was given a charge of murder and then arrested.
even at the Preparatory Examination state the sjambok was never
handed in as the witness could not find it in the exhibit room.
of Section 223 of the Criminal Procedure and Evidence Act, the Crown
had applied to hand in the medical report since the doctor who
performed the post mortem had since left for his home. The
Application, was accordingly granted. According to the doctor, cause
of death was due to severe burns caused by rods, and was handed over
from the bar and marked Exhibit "A".
close of Crown case, the defence closed its case as they chose not to
lead any evidence. The Crown at this juncture submitted that the
Accused should be found guilty of Culpable Homicide.
admitted evidence it has not been very clear as to who actually
handed the green sjambok to the Police. According to P. W.2, the
Accused's father, was the one who claimed to have handed the whip
over to the police. But evidence of the Police Officer, Chakache, was
to the effect that as the Accused surrendered himself to him, he also
handed over a green sjambok.
as it may, there is no dispute in that in fact the Accused did
assault the deceased, a woman who had just recently given birth to a
babe girl. The quarrel was a result of the birth of that child. The
defence conceded that the evidence admitted was a true reflection of
what exactly transpired but that the accused should be found guilty
of assault common as the weapon used was never found, also that
negligence has not been proved. After the accused had assaulted his
wife, the deceased, he did not bother to seek any medical help by
either taking her to the doctor or even leaving money to pay for the
doctor, instead he left for work.
to the Post-mortem report death had occurred some days prior to the
examination. It has not specified exactly after how many days yet the
form provides that he provides the approximate time in terms of days,
hours etc. The external appearance showed, according to the doctor
signs of decomposition and that maggots
present. It further shows that the body was covered with burns which
were iron shaped on the chest, back, arms and legs. The report also
shows that deceased's uterus showed 12 weeks ovulation after
delivery. Twelve weeks is roughly three months. But on looking at the
date of the Post-mortem report, it is dated 25th January, 1991, so
that it would be hard to believe the 12 weeks ovulation period.
conceded that the decomposition might have been a result of lack of
medication after sustaining the severe injuries. The report further
showed that the injuries on the deceased were "burns caused by
iron rods and ironing devise, probably during torturing." Here
the doctor was forming an opinion, considering that he had mentioned
that the body already showed signs of decomposition, it would
therefore be very doubtful whether to consider his evidence as
was, the plastic whip which the accused used was not brought before
Court to have allowed the Court to have formed an opinion about it.
Be that as it may, the fact of the matter is, that the accused was
the one who assaulted the deceased with a green plastic whip, the
deceased who had recently given birth.
deceased had weals all over her body, according to the evidence of
2, 3 4
and 6, from whipping of course. As was held in Thabiso Tsomela vs Rex
1974 75 LLR at 99, I too am unable to subscribe to the view that the
Court of Law is precluded from coming to a conclusion about the cause
of death by reason only that, though the medical evidence is
available is not satisfactory or scientifically conclusive. The
Post-mortem report shows that cause of death was due to severe burns
caused by iron rods and ironing device probably during torturing.
There had been no evidence or suspicion that the deceased might have
been tortured safe to say that she had been assaulted by the accused.
of this nature what the state is expected or required to prove is
that in fact the death of the deceased was caused beyond reasonable
doubt by the hand of the accused. And reasonable doubt according to
Miller vs Minister of Pensions 2
372 does not mean any shadow of doubt. Denning J had this to say in
that case, "It need not reach certainty, but it must carry a
high degree of probability. Proof beyond reasonable doubt does not
mean proof beyond the shadow of a doubt. The law would fail to
protect the community if it admitted fanciful possibilities to defeat
the cause of justice. If the evidence is so strong against a man as
to leave only a remote possibility in his favour which can be
dismissed with the sentence "of course it is possible, but not
in the least probable, the case is proved beyond reasonable
but nothing short of that will suffice."
defence wanted the Court to put much reliance on the Post-mortem
report about the alleged burns on the dead body. When the body was
examined it was already showing signs of decomposition and maggots
were already present. The deceased was the Accused's wife so that
when the report showed burns instead of weals, further investigations
ought to have been conducted in order to get what exactly could have
happened to the deceased. We only have been told of the assaults by
the accused and nothing more.
In Rex vs
Tsomela , Supra, Cotran J had this to say, "Law is not science
or mathematics, and in the field of human relations a definite
conclusion can nevertheless be drawn from a given set of
circumstances, and that cannot be invalid by reason only that such a
conclusion is incapable of being defined in the same way as if it
were a mathematical formula which calculates with exact and
irrefutable precision the right answer to every combination of
figures". Sibanda and Others vs The State 1969 (1) P.H. 122
Wessels J.A. had this to say, "that the state was not required
to demonstrate the cause of death with scientific exactness and as
medical fact beyond dispute."
defence contended that the Accused could not be the one who could be
held liable for the death of deceased considering the opinion by the
doctor as shown in the Post-mortem. Tsomela's case above has answered
issue was whether the conduct of the Accused could be considered to
be unlawful, intentional or negligent. Though the plastic whip has
not been handed in but there was no dispute that the Accused
assaulted the deceased with a green plastic whip prior to her death
and that the deceased had sustained injuries all over her body. The
accused has been negligent in assaulting a woman with a plastic whip,
and not just a woman, but a woman who had recently given birth. The
deceased had been assaulted all over her body, because she had given
birth on a date and and month earlier than what the accused had
expected so that he could be certain that he was the father of the
babe girl. Accused ought to have seen that his conduct might cause
defence further contended that Accused was not obliged to assist the
deceased in seeking medical help. They are saying the Accused was
only under a. moral duty to assist. I would consider that he was
under legal duty to assist the deceased as his wife. In the absence
of any other intervening cause from the day the
was assaulted, it could not be said to be speculation that the
deceased had been healthy prior to the assaults. Evidence has shown
that she had been severely assaulted.
result, the Court finds that death of the deceased was a result of
Accused's negligent acts as he had severely assaulted her with a
whip, and did not thereafter bother to take her to the doctor.
Accused is therefore found guilty of culpable Homicide.
After hearing addresses in mitigation of sentence –
accused having been found guilty of culpable Homicide is sentenced to
five years imprisonment of which 3 years are suspended for a period
of three years on
that he is not convicted of a similar offence which involves violence
during the period of suspension.
Crown: Ms Mofubelu
Defence: Mr Molefi
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