CRI/T/49/86

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

MAPHEELLO
MHUTLISI

JUDGMENT

Delivered
by the Hon. Mr. Justice B.M. Molai on the 16th day of November, 1988.

The
accused is before me on a charge of murder. The body of the charge
sheet discloses the following allegations:

"In that upon or about the 14th day of January, 1988, and at or
near Ha Khutlisi in the district of Maseru, the said accused
did
unlawfully and intentionally kill a newly born baby of her daughter,
'Matlala Mhutlisi."

She has
pleaded not guilty to the charge. It may be mentioned that in the
course of the hearing of this trial Miss Moruthoane, counsel
for the
crown has accepted the admissions made by Mr. Mafiss, who represents
the accused person, that the defence does not dispute
the depositions
of 'Mantholeng Khutlisi, 'Mammika Sehahabane, D/Sgt Monyane and Tpr
Monare who were, res­pectively, P.W.3,6,7
and 8 at the
proceedings of the Preparatory Examination. In terms of the
provisions of S.273 of the Criminal Procedure and Evidence
Act, 1981

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their
depositions became evidence and it was, therefore, unnecessary to
call the deponents as witnesses in this trial.

However,
Mr. Mafisa pointed out that the defence would, in due course show
that the statement made by the accused before 'Mammika
Sehahabane,
the magistrate who had testified as P.W.6 at the Preparatory
Examination proceedings, was not admissible confession.

It is,
nonetheless, worth noting that at the end of the crown case the
defence decided to close its case without calling upon the
accused to
testify from the witness box or adducing any evidence on her behalf.
The court has, therefore, only the crown evidence
to rely upon for
the decision in this matter.

In as far
as it is relevant, the evidence of Tpr Monare is that he is stationed
at Mokhalinyane police post. On 14th January, 1988
he was still on
duty at his police post when headmen 'Mamorena Khutlisi brought to
him the accused, a dead body of an infant and
a small stone alleged
to have been taken out of the infant's mouth. Tpr Monare took
possession of the stone which he subsequently
handed in as exhibit at
the procee­dings of the Preparatory Examination. He also sent a
report to Morija police station. Both
the accused and the dead body
of the infant were later collected by the police from Morija police
station.

In his
testimony D/Sgt Monyane told the court that

3

he was
stationed at Morija police station in the district of Maseru. He
confirmed that oh 14th January, 1988 he had received a report
from
Mokhalinyane police post. Following that report he proceeded to
Mokhalinyane police post where he found the accused and a
dead body
of a newly born baby girl. He examined the dead body for injuries and
found that it had scratches and a contusion on
the neck. It also had
some soil in the mouth. Following the explanation she made, the
accused was brought to Morija police station
where the police officer
cautioned and charged her as aforementioned. He also conveyed the
body of the infant to Morija police
station from where it was
transported to the mortuary at Queen Elizabeth II hospital in Maseru.
It sustained no additional injuries.

Dr.
Oliver has testified that he is one of the medical officers stationed
at Queen Elizabeth II hospital. On 15th January, 1988
he performed a
post mortem examination on a dead body of a newly born female baby.
It was a fully developed healthy baby. The body
was identified before
him by one 'Matlala Khutlisi as that of her newly born infant.

According
to the medical evidence the external examination revealed that the
baby had sustained a contusion and nail markings on
the anterior part
of the neck. On information that some foreign objects (stones) had
been introduced into the baby's mouth the
medical doctor split opened
its throat but could find no such

4

foreign
objects. He could not, however, overrule the possibility that foreign
bodies had been introduced into the mouth of the baby.

In the
opinion of Dr. Oliver death was due to asphyxia which was the result
of either strangulation and/or introduction of foreign
bodies, such
as stones, into the mouth of the baby. I can think of no good reason
why the opinion of the medical doctor that, in
the circumstances, the
cause of death was asphyxia should be doubted. I am prepared
therefore, to accept that the deceased died
as a result of asphyxia.

The
important question that immediately arises for the determination of
the court is whether or not the accused is the person who

strangulated and/or introduced foreign bodies (stones) into the mouth
of the baby resulting in asphyxia which brought about its
death

In this
regard the court heard the evidence of 18 years old 'Matlala Khutlisi
who testified as P.W.1 in this trial. According to
her, 'Matlala was,
on 13th January, 1988, about nine months pregnant when she felt some
stomach ache. She reported to her mother,
the accused, who
immediately prepared a Sesotho medicine commonly known as "Leshokhoe"
and administered it on her ('Matlala).
Shortly after drinking the
medicine 'Matlala felt that her bowls were

5

running.
She proceeded to a place called "Matlapaneng" where the
village women normally go to relieve nature. When she
tried to
relieve nature at "Matlapaneng" 'Matlala gave birth to a
baby girl.

Whilst
the baby was crying 'Matlala noticed a man approaching on a nearby
foot-path. She did not like that man to notice that she
had given
birth to a child at that place and so she picked up a flat stone
which she placed on the lips of the baby. She could
not do so by
placing one of her hands on the lips of the baby because both her
hands were soiled or duty at the time. After the
man had passed she
removed the flat stone from the baby's mouth and it continued crying
normally.

At the
time 'Matlala removed the stone from the baby's lips the accused
arrived on the scene. She was carrying a washing basin which

contained some dry cow-dung and 8 white plastic bag. On arrival the
accused instructed her to go and wash away the blood that was
on her
legs at a dam below the village. She complied and on her return from
the dam 'Matlala found that the accused had already
left with the
baby. She else went home.

When
'Matlale came home the accused called Aiina 'Makhutlisi Khutlisi who
was followed by one Khutlisi 'Masechaba and many other
women in the
village. The accused told the women, who had gathered in the house

6

that she
('Matlala) had given birth to a baby which she showed to them. The
baby was wrapped with the white plastic bag in the washing
basin
which the accused then took from underneath a bed.

The
accused herself washed the baby with warm water and soap. After it
had been washed the baby was still crying although not normally.
It
was making rattling noise as if there were some obstruction in its
throat. The accused then opened the mouth of the baby with
her finger
to find out whether or not anything was inside. She said there was
nothing in the baby's mouth. This is confirmed by
'Malintho Khutlisi,
one of the women who came to accused's house soon after 'Matlala had
returned to the house from "Matlapaneng".

According
to both 'Malintho and 'Matlala after the accused had looked into its
mouth and said there was nothing inside, the baby
continued to make _
rattling noise as it cried. 'Makhutlisi then took the baby from the
accused and checked if there were anything
inside the mouth. She said
there was a stone which she actually removed out of the baby's mouth
with her finger.

'Malintho
told the court that when she heard 'Makhutlisi saying there was a
stone in the mouth of that little baby she got frightened
and ran out
of the house. She did not, therefore, see the stone being actually
taken out of the baby's mouth. She only

7

returned
into the house at the time 'Makhutlisi was showing the stone to the
women in the house. Although she too was frightened
'Matlala did not
run out of the house and was present when 'Makhutlisi actually
removed the stone from the baby's mouth

Because
after 'Makhutlisi had taken out the stone from its mouth the baby
continued to make the rattling noise and some foam mixed
with blood
was coming out from its nostrils and mouth 'Malintho was sent to
report to the village headman. 'Mamorena Khutlisl told
the court that
her husband who worked in the mines of the Republic of South Africa
was the headman of Ha Khutlisi. During the absence
of her husband she
acted as headman in her village. On 13th January, 1986 her husband
was at his place of work in the mines and,
as usual, she acted as the
village headman. At about 5 p.m. on the day in question, 13th
January, 1988, she was still working in
her field when 'Malintho gave
her a certain report following which she immediately proceeded to
accused's house.

She found
many people gathered at accused's house. Amongst those people were
:'Makhutlisi, 'Mametsietso, 'Masechaba, 'Matlala and
the accused
herself who was holding a little baby. 'Matlala was alleged to have
given birth to that baby. When she looked at the
baby 'Mamorena
noticed that the baby was breathing with some difficulty, some foam
mixed with blood was also coming out from its
nostrils and mouth.

8

It was
reported to her that a atone had been removed from the mouth of the
baby. 'Mamorena then took the still crying baby from
the accused,
opened its mouth with her finger and noticed that there was another
stone stuck in its throat. She unsuccessfully
tried twice to remove
the stone with her finger. It was only on the third occasion that she
managed to get it out. Although there
were some smaller stones which
she was unable to remove from the throat 'Mamorena told the court
that the baby was able to cry
and breath normally after she had
removed the bigger stone. That was confirmed by both 'Matlala and
'Malintho.

However,
after she had removed the stone 'Mamorena noticed what appeared to be
nail markings on the neck of the baby. When she asked
'Matlala and
the accused about the stones found in the mouth of the baby and the
nail markings on its neck, the former told 'Mamorena
that as a man
was passing next to where she had delivered the baby she stopped it
from crying loudly by placing a bigger stone
on its mouth. She,
however, removed the stone from the baby's mouth as soon as the man
had passed. She did not know anything about
the nail markings on the
baby's neck. The accused,conceded that she was the one who had put
the atones into the mouth of the baby
and caused the nail markings on
its neck.

9

'Mamorena
considered that the accused's act amounted to a criminal offence for
which she had to refer her to the police. As it was
already late, she
could not,however,do so on 13th January, 1988. According to the
evidence of 'Matlala corroborated by that of
'Mantholeng Khutlisi and
'Malintho they end other village women,including the accused herself,
had to sleep in the house in which
the baby was. Although 'Matlala
could not breast feed it on account of vomitting and the foam mixed
with blood that was still coming
out of its nostrils and mouth the
baby was still alive on the following day, 14th January, 1988.
'Mamorena accompanied by 'Matlala,
'Mantholeng, 'Malintho and many
other village women then escorted the accused, who was carrying the
baby on her back, to Mokhalinyane
police post. On arrival at the
police post it was found that the baby had passed away.

'Mamorena
confirmed the evidence of Tpr Monare that on 14th January, 1988 she
handed the accused and the dead body of the baby to
the police at
Mokhalinyane police post. She at the sametime, also handed over the
stone that she had removed from the baby's throat.

It must
be pointed out that in the light of Dr. Oliver's evidence that the
deceased had died of asphyxia caused by strangulation
and/or
introduction of foreign bodies (stones) into the throat the accused's
statement that she had put the stones into the mouth

10

of the
baby and caused the nail markings on its neck amounted to a
confession. Such a confession was, however, made to the headman
who
as such performs the duties of a police officer. If it were to be
admissible the confession had, therefore, to be reduced to
writing
before a magistrate.

In her
evidence 'Mammika Sehahabane, the magistrate, told the court that on
15th January, 1988 the accused in her sound and sober
senses appeared
before her wishing to make a confession. After she had administered
the usual warning and asked the preliminary
questions the replies to
which she noted on the roneod form - Exh C annexed to the record of
the proceedings of the Preparatory
Examination - the magistrate
allowed the accused to make her confession. In that confession. the
accused told the magistrate that
on 13th January, 1988 her daughter,
'Matlala, gave birth to a baby girl at "Matlapaneng". After
she had sent 'Matlala
away to wash herself at a dam she (accused)
stuffed stones into the mouth of the baby so that it would swallow
them and die.

It is
significant to note that in the confession she made before the
magistrate the accused did not mention that she also strangulated
the
baby and thus caused the contusion and the nail markings on its neck.
As the accused's. suggestion before the headman, 'Mamorena,
that she
also strangulated the baby was neither repeated nor reduced to
writing before the

11

magistrate,
it remained inadmissible confession. In any event, the possibility
that the women who tried to remove the stones from
the throat of the
baby did so by pressing it on the anterior part of the neck thus
causing the nail markings and contusion noticed
by the crown
witnesses cannot, in my opinion, be totally ruled out. That being so,
I come to the conclusion that although the medical
evidence was to
the effect that the asphyxia which caused the death of the deceased
could have been the result of strangulation,
there is, on this point,
a doubt, the benefit of which must, in our law, be given to the
accused person.

However,
I accept the evidence of 'Mamorena cor­roborated by that of
'Matlala that stones were found in the mouth of the deceased.
Indeed,
the accused herself conceded, in her confession, that she was the one
who had stuffed the stones in the mouth of the deceased.

According
to the medical evidence which I have accepted, the introduction of
the stones into the mouth also resulted in asphyxia
which brought
about the death of the deceased. The question I have earlier posted
viz. whether or not the accused was the person
who introduced foreign
bodies (stones) into the mouth of the deceased resulting in asphyxia
which brought about death must, therefore,
be answered in the
affirma­tive.

12

That
being so, the next question that arises for the determination of the
court is whether or not when she put into its mouth, the
stones that
brought about asphyxia and death, of the baby (deceased) the accused
did so with the requisite subjective intention
to kill. Intention is
not something that we can reach with any of our senses. It is a
matter to be inferred from the acts or words
of the accused person.
In the instant case the accused, in her own words, told the
magistrate who recorded her confession that
she had put stones into
the mouth of the baby so that it would swallow them and die. It must
be accepted, therefore, that the answer
to the question whether or
not when she put into its mouth, the stones that brought about
asphyxia and death, of the baby the accused
did so with the requsite
subjective intention to kill must be in the affirmative.

In the
circumstances, I have no alternative but to come to the conclusion
that the accused has committed the offence against which
she stands
charged. She is accordingly found guilty of murder as charged.

Both my
assessors agree with this finding.

B.K.
"MOLAI

JUDGE

16th
November, 1988.

For Crown
: Miss Moruthoane

For
Defence : Mr. Mafisa.

CRI/T/49/88

13

EXTENUATING
CIRCUMSTANCES

The court
is now enjoined by the provisions of 5.296(1) of the Criminal
Procedure and Evidence Act, 1981 to state whether or not
extenuating
circumstances exist in this case.

Following
her conviction on murder, the accused went into the witness box and
testified, on oath, that for an unmarried girl to
become pregnant and
give birth to a baby was unheard of in her home village. Her own
husband had passed away in 1971. She had only
one arable land on
which she depended for a living. She did not know how she was going
to maintain the baby that 'Matlala, her
unmarried daughter, had given
birth to. She was extremely confussed and it was in the course of
such confusion that she stuffed
stones into the mouth of the little
baby and thus committed the crime against which she stood charged.

It is
significant to note that subsection (2) of section 296 of the
Criminal Procedure and Evidence Act , 1981 provides:

"(2) In deciding whether or not there are any extenuating
circumstances, the High Court shall take into con-sideration the

standards of behavior. of an ordinary person of the class of
community to which the accused belonges."

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I agree
that in rural communities like the one in which the accused lives it
is not often that girls become pregnant and give birth
to babies
before they are married. When it does happen it is, indeed, a
disgrace to the parents of the girl concerned.

Assuming
the correctness of her evidence that her husband died in 1971 and she
had one arable land as her only source of income,
I accept that the
accused must have been at a loss as to how she was going to maintain
'Matlala and her newly born baby.

In my
view, all these factors had the cummulative effect of reducing the
moral blameworthiness of the accused's act. I come to the
conclusion,
therefore, that extenuating circumstances do exist in this case.
Accor­dingly a proper verdict is that the accused
is guilty of
murder with extenuating circumstances.

My
assessors agree.

SENTENCE:
10 years imprisonment.

B.K.
MOLAI

JUDGE

21st
November, 1953.

For Crown
: Miss Moruthoane,

For
Defence ! Mr. Mafisa.