HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice B.K. Molai on the 23rd day of June, 1987.
accused is before me on a charge of murdering one 'Mamosa Matobo, it
being alleged that on or about 27th May, 1985 and at or
Majakaneng in the district of Mafeteng he unlawfully and
intentionally killed the deceased.
the course of the trial, Mr. Monyako who represents the accused, told
the court that the defence would not dispute the depositions
'Makutlenyane Malobe, Dr. S.W. Moore, D/Tpr Ntlama and Dr. Agyei who
were respectively P.W. 2,6.8 and 10 at the proceedings
Preparatory Examination. Miss Moruthoane for the crown accepted
the admissions made by the defence with the exception
deposition of D/Tpr Ntlama whom she intended calling into the witness
box to clarify a few things.
of the provisions of S. 273 of the Criminal Procedure and Evidence
Act, 1981 the depositions of P.W.2, 6 and 10 at the
the Preparatory Examination were accordingly accepted as evidence and
it became unnecessary, therefore,to call
the deponents as
witnesses in this trial.
the evidence heard by the court was that adduced by P.W.7, D/Sgt
Monyane who testified that on 6th July, 1985 (it should
6th June, 1985) he received a
following which he proceeded to a certain house in the village of
Mahloenyeng where he found the dead body of the deceased.
examining it he found that the body had multiple injuries on the
head, above the left ear, on the forehead and on the left side
neck. the injuries were not fresh although not completely healed. He
conveyed the body in a Government vehicle to Scott
hospital in Morija
where a post mortem examination was conducted. No additional injuries
were sustained by the body whilst it was
being transported from
Mahloenyeng to the hospital.
to Dr. Moore he was the medical doctor who, on 8th June, 1985, had
performed the autopsy on the body of the deceased.
The body was
identified before him by one Mosa Matobo, who was, however, not
called as a witness in this trial. The examination
following findings : 8cm open wound on top of the head, 2 lacerations
on the left side of the frontal area of the
skulp and a bruise above
the left ear. Although there was no fracture of the skull there were
signs of slight bleeding into the
brain. In the opinion of Dr. Moore
a blunt instrument had been used to inflict the injuries and death
was due to head injuries.
It was also possible that shock resulting
from the injuries and other natural causes relating to her old age
had contributed to
the deceased's death.
the correctness of Dr. Moore's evidence that the deceased died as a
result of the injuries inflicted upon her, the question
is who had
caused those injuries and therefore brought about her death. In
this regard the court heard evidence that the deceased,
woman of about 91 years of age lived in the same house with her
daughter-in-law, 'Mamatobo Matobo and Mothepu Matobo,
brother of the accused.
itself was a six roomed-house, four bedrooms, a kitchen and a living
room. 'Mamatobo Matobo and two children slept
in one of the
bedrooms. The other two bedrooms were each used by Mothepu Matobo and
the deceased respectively. The accused himself
lived with one of the
relatives in the same village.
evening of 27th May, 1985, the accused called at the deceased's home
where he found his younger brother, Mothepu Matobo,
ill in bed. He
decided to spend the night with him. They were on that night both
sleeping in the same bed when, according to Mothepu
accused suddenly delivered a blow on him with a strainer which he had
taken from the wall where it was hanging. Mothepu
Matobo warded off
the blow with his hands and jumped out of the bed. When he asked him
why he was assaulting him, the accused,
who was clearly in a fighting
mood, asked whether he did not see the "Lithokolosi" coming
to him (accused). Mothepu ran
out of the room and went to the room in
which 'Mamatobo was sleeping. He was unable to open the door of that
room and so ran out
of the house.
Matobo gave evidence on oath and told the court that on the night in
question she and two children, Mphu and Ramakhema,
were sleeping in
their bedroom when she noticed that the accused was in their room.
She asked him what the matter was and the accused
witches were surrounding him. She told him that there were no
witches in the house and he should go to bed. The
started screaming and making a lot of noise.
that there was something mentally wrong with the accused, 'Mamatobo
rushed out of the house to seek assistance from neighbours.
children who had been sleeping with her followed 'Mamatobo out of the
house. Outside the house 'Mamatobo and the two children
by Mothepu Matobo who had been standing outside the kitchen door.
They all ran to the home of one Motsoane to ask for
was, however, not in. As they left Motsoane's place, 'Mamatobo and
Mothepu heard the accused's voice shouting down
the village. They
then returned to their house.
arrival at the house, they noticed that there was no light in the
deceased's room which was always lit at night. As they entered
the house, the deceased who was the accused's grandmother pleaded
with 'Mamatobo to put on the light for the accused had killed
'Mamatobo did put on the light and found that the deceased had
injuries on the
the body. Her head and night dresses were covered with blood. There
were also blood stains on the walls. She immediatley
went to report
to the chief whom she found at the home of one Thelingoane where
there was a night virgil. The accused who was causing
noisy at the night virgil was caught hold of and fastened by men.
evidence of 'Mamatobo that the accused was troublesome at the
night virgil was confirmed by Taolaha Kokami, Mohoba Pitso
Mahlomola Matobo, three of the village men who attended the night
virgil on the night in question. According to them when he
the night virgil, the accused was very violent and wielding a stick
with which he started beating up people indiscriminately.
attempt to disarm him, Taolana Kokami caught hold of the accused who,
however, stabbed him with a knife. The accused then
li laola bakoena, ke bolaile nkhono". (loosely translated :
"divining bones point to bakoena. I
killed my grandmother").
Although he did not understand what the accused meant by "Taola
lia laola bakoena. Ke bolaile
nkhono" Taolana Kokami told the
court that he knew that the accused belonged to the clan of bakoena.
Pitso and Mahlomola Matobo confirmed that the accused was ultimately
overpowered and fastened by the village men after which
escorted to Ben's place where ha normally slept. 'Mamosa Matobo
together with the Chief Mokhitli and the village men then
went to the
deceased who was on the same night transported in a vehicle to the
Government hospital at Mafeteng.
following day, 28th May, 1985, the accused was also escorted to the
hospital by Mahlomola Matobo. At the hospital Mahlomola
to take the accused to the mental health unit of the hospital where
he started asaulting people. He was given an injection
and allowed to
return home. On the way, the accused became very drawsy and Mahlomola
had to carry him in a wheelbarrow.
confirmed that on 28th May, 1985, the deceased was referred to him at
Mafeteng Government hospital. On examining her he
found that the
deceased had multiple stab
the sculp and upper trunk. The wounds were relatively deep and
those on the sculp reached the bone. He formed the
opinion that the
wounds had been inflicted by the use of a sharp instrument and
considerable degree of force was applied. The wounds
had to be
stitched and the patient was admitted until 6th June, 1985 when she
was discharged in a stable condition.
significant to observe that while Dr. Agyei says the injuries on the
deceased were inflicted with a sharp instrument,Dr.
evidence is that they were inflicted by the use of a blunt
instrument. The evidence of the two doctors has, therefore,
discrepancy on this point. It must, however, be borne in mind that at
the time Dr. Agyei examined her, the deceased was still
alive and her
injuries fresh. On the other hand the deceased was already dead and
the injuries stitched at the time Dr. Moore examined
her. For this
reason, it seems to me, Dr. Agyei was in a better position than Dr.
Moore to see the nature of the injuries and determine
the type of
instrument used to inflict them. I am inclined, therefore, to accept
as the truth Dr. Agyei's version to that of Dr.
Moore on this point.
to her evidence, 'Mamatobo testified that when the deceased was
discharged from the hospital on 6th June, 1985, she ('Mamatobo)
her husband, Mosa Matobo, conveyed her in a vehicle to the home of
her ('Mamatobo's) sister-in-law at Mahloenyeng in the area
Matsieng. They left the deceased together with her medicines from the
Mafeteng hospital in the hands of the sister-in-law to
instructions on how to administer the medicines were explained. On
the same day, 6th June, 1985, 'Mamatobo and her husband
their home at Majakaneng.
evidence of 'Makutlenyane Malobe was that her home is in the area of
Mazenod. In June 1985 she was on a visit at Mahloenyeng
where she was
assisting 'Mamatobo's sister-in-law to harvest her crops. She
confirmed that on 6th June, 1985 the deceased was brought
to the home
of 'Mamatobo's sister-in-law at Mahloenyeng. She and 'Mamatobo's
sister-in-law slept in the same house with the deceased
was brought to Mahloenyeng. At about dawn on that night they wanted
to assist the deceased so that she could change her
position. They, however, found that the deceased had already passed
Ntlama told the court that on 11th June, 1985 he received a report
following which he proceeded to the home of accused. He
question the accused about the death of the deceased. Although he was
not coherent in what he said, the accused's reply
was that he did not
know anything about the deceased's death. On the basis of information
received during his investigations, the
detective Trooper nonetheless
cautioned, arrested and charged the accused as aforesaid.
accused himself gave evidence on oath and told the court that he did
not know anything about the events of 27th May, 1985. All
remembered was that in the afternoon of that day he was returning
home from the velt when he felt that he was suffering from
headache. He called at the home of one 'Ma-Alina to ask for a snuff
to inhale so that he could sneez. When 'Ma-Alina said she
snuff, a certain Phiri who claimed to be a Sesotho doctor or
herbalist offered him some powdered medicine which he said
the headache. Immediately after inhaling that medicine, the accused
started sneezing and lost his senses. He regained
his senses only on
Sunday following the 27th May, 1985 when he realised that he had been
assaulted and injured. He later learned
that the deceased, his
grandmother, had died as a result of the injuries he had allegedly
inflicted upon her. He loved the deceased
very much and felt very
sorry for her death.
there is no direct evidence that the accused assaulted and injured
the deceased, there is ample evidence indicating that
on the night in
question he behaved in so belligerent a manner that Mothepu and
'Mamatobo had to run out of the house leaving him
alone with the
deceased. Soon after the accused had left the house, the deceased was
found brutally assaulted and complaining that
the accused had killed
her. There is also evidence that when he left the deceased's house,
the accused went to the home of one
there was a night virgil. On arrival at the night virgil he was
violent and started assaulting people indiscriminately for
apparent reason. There is, in my opinion, sufficient circumstantial
evidence indicating that the accused is the person who did
and injure the deceased on the night of 27th May, 1985.
the defence did not raise a plea of insanity and the accused appeared
quite sane before the court, I was, on the evidence,
disturbed about his mental state.
accordingly issued an order referring him for observation by a
psychiatrist. In this regard Dr. Mohapeloa, the Director of Mental
Health Services testified that he was the psychiatris. who examined
the accused, read the depositions made by various witnesses
Preparatory Examinations and interviewed some of his relatives. In
his opinion, the accused is quite fit to stand trial.
On the other
hand the accused's actions at the material time are consistent with
those of a person in a state of diminished responsibility
due to an
isolated acute psychotic episode (i.e. insanity) and the episode
lasted for several days.
I have no
good reason to doubt the evidence of Dr. Mohapeloa that although the
accused has no signs of mental illness and is now
fit to stand trial
he was, at the time he assaulted and injured the deceased, suffering
question for the determination of the court is whether or not the
deceased died as a result of the injuries inflicted upon
her by the
accused. It is to be remembered that after she had been assaulted and
injured, the deceased was taken to Mafeteng Government
she received medical treatment. According to Dr. Agyei, when on 6th
June, 1985 she was discharged from the hospital,
the deceased was in
a stable condition.
some medicines were handed to 'Mamatobo with instructions on how to
administer them on the deceased, 'Mamatobo passed the
the instructions to her sister-in-law who was, however, not called as
trial. We do not therefore, know what medicines they were nor do we
know how they were administered on the deceased. The
death could have been precipitated by the medicines or the manner in
which they were administered on the deceased
remains a real one.
There is, therefore, a doubt whether or not actus novus interviniens
exists in this case. The benefit of such
a doubt is, in our law,
always given to the accused person. That being so, the question I
have earlier posted viz. whether or not
the deceased died as a result
of the injuries inflicted upon her by the accused must, be answered
in the negative.
foregoing, it stands to reason that the view that I take is that the
accused can at the most be convicted of assault with
intent to do
grievious bodily harm. As he was insane at the time he assaulted and
injured the deceased the proper verdict should
be "guilty of
assault with intent to do grieveous bodily harm but insane at the
time he commited the act" He is accordingly
circumstances, I have no alternative but to order that the accused be
sent to prison pending the signification of his
: Miss Moruthane,
Defence: Mr. Monyako.
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