CRI/T/3/384

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

MOKOATLE
THONKHA

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 21st day of October, 1985.

The
accused is before me on a charge of murdering Thapelo Machachamise
and Peter Mafereka, it being alleged that on or about 9th
October.
1984 and at or near Mokana-metsong in the district of Quthing he
unlawfully and in­tentionally killed the two deceased.
He has
pleaded not guilty to the charge.

At the
commencement of the trial, the depositions of Dr. Stallmach and
Tseliso Machachamise who were res­pectively P.W.8 and
P.W.5 at
the proceedings of the Pre­paratory Examination were admitted by
Mr. Hlaoli, counsel for the defence. The admissions
were accepted by
Mr. Kabatsi for the crown. In terms of the provisions of S. 273 of
the Criminal Procedure and Evidence Act.1981
the depositions of Dr.
Stallmach and Tseliso Machachamise were accepted as evidence and it
became unnecessary, therefore, to call
the deponents as witnesses in
this trial.

The court
was further informed by both counsels that the depositions of
chieftainess 'Matoka Letsie and D/Tpr. Lenela who were respectively

P.W.6 and P.W.7 at the Preparatory Examination were not disputed and
there­for, admitted in evidence in terms of the provisions
of
S.273 of the Criminal Procedure and Evidence Act, supra,

2

save as
regard the finding of a knife which was used as exhibit in this case.

It must
also be mentioned that it came to light during the course of this
trial that one of the deponents Mokotjomela Makashane
who was P.W.3
at the Preparatory Examination proceedings has since died and was not
available to testify in this trial. His deposition
was, however,
admitted in evidence in terms of the provisions of S.227(1) of the
Criminal Procedure and Evidence Act, supra.

In a nut
shell Dr. Stallmach's evidence, which was common cause, was that he
was the medical doctor who performed the autopsy over
the bodies of
the two deceased on 8th October, 1984. One of the people who
identified the bodies as those of the two deceased was
Tseliso
Machachamise. This was confirmed by Tseliso Machachamise himself, the
father of Thapelo Machachamise and a relative of
Peter Mafereka.

The
findings of the medical doctor as regards the dead body of Thapelo
Machachamise was that there was a cut wound on top of the
left
shoulder; another deep cut wound on the left thigh resulting in a
major bleeding as a blood vessel had been ripped open. In
the opinion
of the medical doctor death occurred as a result of haemorrahage from
the cut wound on the thigh.

The
examination of the dead body of Peter Mafereka revealed a single
stab-wound on the neck which wound severed the muscles and
perforated
the Trachea resulting in the aspiration of blood which was, in the
opinion of the doctor, the real cause of death.

In his
evidence, the medical doctor further told the court that the injuries
inflicted on the two deceased were consistent with
the use of a sharp
instrument such as the knife which was exhibited before the court
during the course of the trial in this case.

As has
been pointed out earlier, Dr. Stallmach's findings and his
conclusions derived therefrom are not disputed. I can think of
no
good reason why he should be doubted in this regard. I am prepared,
therefore, to accept

3

that the
deceased died as a result of the injuries inflicted upon them. Having
said that much, the next question that immediately
arises for the
determination of the court is whether or not the accused is the
person who inflicted the fatal injuries on the deceased.

In this
regard the court heard the evidence of P.W.3, 'Mamikael Phuthi,
P.W.4, Mbuti Gantweni, and, indeed the accused himself,
who all
testified that on the evening of 7th (and not 9th) October, 1984, at
about 7 p.m. P.W.3 was selling Sesotho beer at her
home in the
village of Mokanametsong. The accused, P.W.4, P.W.5 ('Mannini
Sesoane) and many other people attended.

There was
a time when the deceased, Peter Mafereka, also came into P.W.3's
house. The moment he noticed him in the house, Peter
Mafereka
demanded tobacco from P.W.4 who, however, refused to give him some,
complain­ing that he had been supplying the deceased
with his
tobacco throughout the whole day. The deceased, Peter Mafereka, then
hit P.W.4 a blow on the face with the back of his
palm at the same
time telling him that he was proud and considered himself clever
because of his tobacco.

When he
was thus hit by the deceased, P.W.4 stood up from where he had been
seated ready to fight him. How­ever, the accused,
who had also
been seated in the house, immediately stood up and intervened by
standing between the two men and remonstrating with
the deceased for
assaulting P.W.4 when the latter refused to give him his (P.W.4's)
tobacco. The deceased was then ordered out
of the house by P.W.3 the
owner of the house. As he went out of the house Peter Mafereka was
followed by P.W.4 who was presumably
still unhappy and determined to
avenge himself for what the former had done to him. The accused also
followed P.W.4 and Peter Mafereka
out of the house.

The
evidence is conflicting as to what happened after the accused, Peter
Mafereka and P.W.4 went out of P.W.3's house and came to
the
forecourt. According to the accused, whilst he was pursuating Peter
Mafereka not to fight P.W.4 for refusing with his (P.W.4's)
tobacco
he

4

heard
P.W.4 saying: "I shall beat up this boy." Thapelo
Machachamise who was by then listening to the discussion

between
the accused and Peter Mafereka inquired as to what the matter was.
The accused explained what had happened in the house
and assured
Thapelo Machachamise that he had already settled the quarrel which
was better not pursued any further. On the suggestion
of William,
Thapelo Machachamise then left with Peter Mafereka for their home.
However, as they left for their home the accused
heard Thapelo
Machachamise calling Peter Mafereka a troublesome Transkeian and the
latter complaining that because he stayed at
his parental home the
former thought very little of him.

According
to him the accused then went to pass water next to a nearby pig-sty.
On his return from the pig-sty the accused's attention
was drawn by a
woman called Litlallo to Peter Mafereka who had fallen into a furrow.
With the help of William he assisted Peter
Mafereka out of the
furrow. It was then that he noticed that Peter Mafereka was bleeding
from the neck. Mokotjomela Makashane,
Thapelo Machachamise and others
were at that time standing by and doing nothing to assist. He asked
them what had happened to Peter
Mafereka but got no answer.

After
trying to stop the bleeding from Peter Mafereka the accused called at
Thapelo Machachamise to come and see the former as he
was bleeding
from the neck. When Thapelo Machachamise did not reply, the accused
went running to him. Then Thapelo Machachamise
tried to jump over a
furrow but fell down. When he came to him the accused found Thapelo
Machachamise kneeling down. He asked him
why he was running away and
what had happened to Peter Maferska with whom he had been going.
Thapelo Machachamise did not reply
but fell on his back. The accused
stooped down and asked him what was wrong. Thapelo Machachamiso then
said. " Do not stab
me with a knife". The accused got fed
up with what Thapelo Machachamise said as he never go about carrying
a knife. It was
then that he

5

said:
"You are silly, do you see me holding a knife?'

From his
evidence it is clear that the accused denies any involvement in the
assault on the two deceased. I have earlier pointed
out that
deposition of Mokotjomela Makashane at the Preparatory Examination
was admitted in evidence in terms of the provisions
of s.227(1) of
the Criminal Procedure and Evidence Act, 1981. As he had since died
and was not available for cross examination
in this trial his
evidence must, however, be approached with care. According to
Mokotjomela he was one of the people who went out
of P,W.3's house as
a result of the commotion caused by the fight between P.W.4 and Peter
Mafereka. When they came to the forecourt
the two men were still
quarreling. Thapelo Machachamisi then went to them and joined the
quarrel by taking side with Peter Mafereka.
It was because of this
that the accused and Thapelo Machachamise crossed words and started
fighting with fists. During the fight
Thapelo Machachamise fell to
the ground. When Peter Mafereka came to them the accused left Thapelo
Machachamise and turned to him.
The accused struck Peter Mafereka a
blow on the neck with a fist and while the latter was staggering he
chased after Thapelo Machachamise
who had by then got up on his feet.
As he chased him the accused was striking Thapelo Machachamise with
straight shots of his fists.
While the accused was chasing Thapelo
Machachamise, Mokotjomela and others tried to assist Peter Mafereka
who had then fallen into
a furrow. He noticed that Peter Mafereka was
bleeding from the neck.

The
evidence of Mokotjomela is supported by that of P.W.4 who further
told the court that when they came to the forecourt of P.W.3's
house
and while the accused was talking to Peter Mafereka, the deceased
Thapelo Machachamise approached and inquired as to what
was taking
place. At that time William interrupted and said: "men, leave
this tobacco noise alone and let us go inside the
house." P.W,4
then returned into the house leaving the accused and the two deceased
outside the house. While he

6

was
inside the house P.W.4 heard the voice of a woman raising an alarm
that there was a fight outside. He went out and noticed Peter

Mafereka staggering and sneezing towards the edge of the forecourt.
He also noticed that at that time the accused was chasing Thapelo

Machachamise. During the chase, the accused caught up with Thapelo
Machachamise and delivered blows which the latter was warding
off
with his hands. He then heard Thapelo Machachamise crying out: "Are
you stabbing me with a knife?" or words to that
effect. The
accused then said "You are silly".

As he
said those words the accused who had been walking away returned
towards Thapelo Machachamise. P.W.4 went to them but many
people
outran him and came there before him. When he eventually came to them
P.W. 4 noticed that Thapelo Machachamise was bleeding
profusely from
the thigh. After seeing Thapelo Machachamise P.W.4 went to where
Peter Mafereka was seated and bending his head
next to a furrow at
the edge of the forecourt of P.W.3's house. He noticed that Peter
Mafereka was bleeding from the shoulders.
He went to report at the
chief's place. On his return P.W.4 could no longer see the accused.
Peter Mafereka was already placed
in a vehicle. P.W.4 only assisted
in taking Thapelo Machachamise on to the vehicle which was used to
convey the two deceased to
the hospital. He accompanied the deceased
to the hospital where Thapelo Machachamise died on arrival and his
body was then taken
to the mortuary. P.W.4 later learned that Peter
Mafereka had also passed away.

The
evidence of P.W.5 'Mannini Sesoane confirmed that of Mokotjomela and
P.W.4 in that after the commotion as a result of which
many people
including the accused, P.W.4 and Peter Mafereka went out of P.W.S's
house, she too went out. She went behind the house
to pass water. On
her return she heard the voice of Peter Mafereka saying: "this
person has finished me". The voice was
from

7

lower
down the forecourt of P.W.3's house. She went there and found
Mokotjomela and others assisting Peter Hafereka out of a furrow.
She
did not notice what injuries were sustained by Peter Mafereka. At
that time, P.W.5 noticed that the accused was chasing Thapelo

Machachamise. During the chase Thapelo Machachamise fell to the
ground. Shortly thereafter she noticed the accused returning and
she
asked him what he and Thapelo Machachamise were doing and the accused
replied: "These children are silly."

P.W.5
then left the accused and went to where she had seen Thapelo
Machachamise falling. This was because she had not seen him rising
up
from where he had fallen. When she came to that spot she found
Thapelo Machachamise fallen on his knees. She called Mokotjomela
to
assist him. When Thapelo Machachamise was raised up P.W.5 realised
that he was injured as he was bleeding profusely from the
thigh. She
raised an alarm by screaming loudly and many people gathered around.

Notwithstanding
his denial that he had anything to do with the assault on the two
deceased the accused was clearly seen by P.W.5,
P.W.4 and Mokotjomela
chasing and delivering blows on at least one of those deceased viz.
Thapelo Machachamise. I am unable to
find any good reason why these
witnesses would falsely incriminate the accused on this point. Nor
could the accused himself suggest
any. In my opinion the answer to
the question whether or not the accused is the person who inflicted
the fatal injuries on the
deceased must be in the affir­mative.

Although
the witnesses testified that the accused was striking the deceased
blows with fists, I am convinced that no fist would
have inflicted
injuries such as those that were found on the deceased. The accused
must have been using an instrument which the
witnesses were unable to
identify positively due to the inadequacy of light.

8

This
brings me to the evidence of P.W.2, D/Tpr. Lenela, according to whose
testimony on 9th October, 1984, he proceeded to Dilli-Dilli
where he
found the accused already detained at the police post. He brought the
accused to Quthing police station in a police van.

On their
way to Quthing and following certain information P.W.2 questioned the
accused about the where­abouts of a knife he
allegedly used to
stab the deceased. At first the accused said he had left the knife at
the scene of crime. He later on changed
and said the knife was at his
home from where he could produce it. P.W.2 then took the accused to
his home village which was on
their way to Quthing Police Station.
They first went to the home of P.W.1 'Matoka Letsie, who is the
chieftainess in the village.
On this point P.W.2 is supported by
P.W.1 who also confirmed that the accused took them to a flat roofed
house at his parental
home. After they had all entered into the
house, the accused asked P.W.2 to open one of the drawers of a
dressing table. On opening
the drawer P.W.2 found a knife which had
what appeared to be blood stains on its blade - accused told P.W.2 in
the hearing of P.W.I
and other people who were with them in the house
that that was the knife he had said he would produce.

According
to the accused only P.W.2 went into the house and came out holding
the knife which he (accused) however denied knowledge
of. He said
P.W.1 was falsely incremina-ting him in this case simply because he
was once her lover and he had subsequently terminated
their love
affair.

Well, I
am sure that if it were true that accused knew that P.W.1 was giving
false evidence against him because of his termination
of their love
affair the accused would not have kept it a secret until when he got
into the witness box. He would have briefed
his attorney so that
P.W.1 could have been cross-examined about it while she was in the
witness box.

Again, I
do not see how P.W.2 could have known that the knife was in a drawer
in one of accused's parental

9

house.
There is not the slightest doubt in my mind that the accused is
telling lies on these points and the truth lies in the evidence
of
P.W.2 confirmed by that of P.W.1 that the accused pointed out this
knife to the police officer as the knife he had used to inflict
the
injuries on the two deceased.

I have
seen this knife as P.W.2 handed it in as exhibit in this case. It is
a big knife commonly known as a dagger or used in the
butcheries.
From the evidence it is clear that considerable force was applied by
the accused to stab the defenceless deceased persons
and inflict the
injuries that deprived them of their lives.

In my
view an irresistable inference to be drawn from the evidence as a
whole is that the accused had the requisite subjective intention
to
kill at least in the legal senses and I accordingly find him guilty
of murder as charged.

My
assessors agree.

B.K.
MOLAI

JUDGE

21st
October, 1905.

For Crown
: Mr. Kabatsi

For
Defence: Mr. Hlaoli

CRI/T/3/84

EXTENUATING
CIRCUMSTANCES

There was
evidence which I accepted that the two deceased, who were apparently
under the influence of intoxication were the first
to attack the
accused for merely remonstrating with one of them (Peter Mafereka)
against his unreasonable assault on P.W.4. The
deceased were,
however, attacking the accused with bare hands and, for that reason,
there was no justification for the accused
to assault them in the
manner demonstrated by the injuries, with a weapon as dangerous as
the knife that has been exhibited before
this Court. In other words
self-defence could not avail the accused in the circumstances. I am
prepared, however, to take this
into account for purposes of
extenuating circumstances.

There was
further evidence that accused is a person who drinks beer. On the
evening in question he called at P.W.3's home where
there was beer
drinking. The probabilities are high that prior to the unfortunate
events of that evening the accused had also taken
some beer which,
naturally, has intoxicating effects.

As Homes,
J.S. once put it in S. v. Ndlovu (2), 1965(4) S.A. 692 at p. 695:

"Intoxication is one of humanity's age-old frailties, which may,
depending on the circumstances, reduce the moral blamewor-thiness
of
a crime ....."

In the result I come to the conclusion that extenuating circumstances
do exist in this case and the proper verdict is that of "guilty

of murder with extenuating circumstances".

SENTENCE
:

11 years
imprisonment. My assessors entirely agree with this finding.

B.K.
MOLAI

JUDGE

21st
October, 1985.

For Crown
: Miss Nku

For
Defence : Mr. Hlaoli