HIGH COURT OF LESOTHO
matter of :
MOTSOENE MPUTU MAFEKA
by the Hon. Mr. Justice M.L. Lehohla on the 14th day of December,
close of the crown case accused 2 Mputi Mafeka who was charged
jointly with accused 1 was acquitted and discharged.
had preferred against the two accused a charge of murder in that on
or about the 14th day of December, 1987 and at or
near Ha Shepheseli
in the district of Butha-Buthe they did one or each or both of them
unlawfully and intentionally kill Thabo
accused pleaded not guilty to the charge and the matter proceeded to
accused 2 was acquitted it remains for me to deal with the case
affecting accused number one whom I shall refer to as such or
accused in this judgment.
for the accused admitted on the latter's behalf the depositions
appearing in the preparatory
record relating to the evidence of P.W.1 Khauta, P.W.2 Tseliso, P.W.3
Leqhetso, P.W.4 Khomo, P.W.7 Mpopo, P.W.9 Pheello,
end P.W.11 Mohapi Lenkoane.
version of the Crown's story is that on the 14th December 1987, P.W.1
had learnt from accused that deceased had stabbed P.W.1's
brother's wife with a knife. Accordingly P.W.1 had occasion to go to
the Hospital where his sister-in-law was being treated
for the stab
wound inflicted by deceased.
important from the outset to note that accused is a chief in a sub
village forming part of the greater Ha Shepheseli village.
P.W.1 returned from the hospital and was about to cross the
Lipelaneng river he saw the deceased Thabo hiding among some shrubs
and undergrowth. He accordingly hurried to report to P.W.3 Leqhetso
the Mabothile bugle, that he had seen where deceased had taken
refuge. The bugle thus detailed P.W.1 and some other men to go and
apprehend the deceased. They did,
tied his hands with some rope or wire flex they escorted deceased to
chief Mahlatsa's place.
appears that an occasion arose when in the course of escorting
deceased P.W.1, perhaps out of disgust from deceased's assault
P.W.1's sister-in-law fetched deceased a blow or two with a whip.
when P.W.1, deceased and others came to chief Mahlatsa's place they
were directed by Mahlatsa's wife to take deceased to
police station when a report had been made about him concerning the
stabbing of the woman referred to earlier.
unfortunate twist of fate P.W.1 acceded to a demand made by one Thato
P.W.8 and P.W.9 Pheello that accused had ordered that
taken to him before being escorted to the police station. Mafeka's
that deceased be taken to the police was ignored with the result that
deceased was escorted to his home where his escort
ordered that he
should produce the knife with which he had caused the injury on the
It is at
this stage that his escort gave him further blows with sticks and
sjambok with the result that P.W.8's quince stick with
which he hit
deceased got broken and P.W.8 Thato threw it away. Unfortunately this
stick was not produced in evidence in order
for the court to have
benefit of seeing its size and assessing roughly what extent of
damage it was capable of inflicting.
knife had been produced deceased was in turn taken to accused's
then left deceased in the care of accused's wife when he went to his
own home to take some day meal. When P.W.1 returned and
that deceased's condition appeared some how different from when he
left him inquired from accused's wife whether deceased
healthy whereupon accused's wife said some men had been assaulting
time many people had gathered at accused's place.
had been tied with wire flex on both hands and feet. His hands were
swollen as well as his face. But this was not to be
the end of his
torment and troubles.
pitched on the scene. No sooner had he arrived than he asked whether
deceased regarded himself as greater than accused.
was armed with a big white stick "Ex.1" and without waiting
to hear any reply started belabouring deceased
credible evidence that the belabouring was concentrated on both arms
and thighs. Accused
inflicting these blows was heard to say he was sick and tired of
deceased's evil deeds.
witnesses did concede that deceased was a notorious man who at times
committed housebreakings, thefts and assaults.
accused made an order that deceased be tied with a rope around the
neck and made to climb on a chair or a table in order that
one end of
the rope should be drawn over the rafters and then pulled down with
the result that accused should get suspended from
that rope on his
evidence shows that this order was complied with.
however controversy which I need not go into regarding the evidence
by the Crown witnesses that while thus suspended deceased
molested by accused while others were holding on to the free end. of
the rope in order to maintain deceased in that suspended
it to say that further credible evidence shows that accused had said
that everyone else should not hit deceased but leave
deceased to him
to deal with as he indeed proceeded to hit deceased mercilessly with
the stick even after he had been let to drop
in careless abandon on
to the ground.
careless abandon because for a short moment of his suspension it was
only when P.W.1 protested that the participants in the
deceased would kill him, that Mputi who was holding one end of the
rope let go of it with the result that deceased dropped
to the ground
like a ton of bricks.
attempt was made by accused to break deceased's fall from the height
to which he had been pulled to the rafters.
from the height of Mputi who is quite a short man who is said to have
been pushing deceased up towards the rafters until
could no longer help push him further up even when his arms no doubt
were stretched upwards I conclude that deceased
must have been
dangling at least two and half yards clear of the ground. Hence the
fall from that height must have had a great
impact on his body.
Indeed evidence adduced was to the effect that on falling his
forehead struck the cement floor on to which
blood flowed from an
open wound which occurred on his cheek or above his eye (it does not
while deceased passed out after hitting the cement floor. When
on-lookers tried to lamely intervene or even plead for deceased
accused ordered them to go away.
reference in the evidence to the effect that accused continued
hitting deceased with the result that one open wound was
the head and blood started flowing profusely from it.
As a mark
of sheer savagery on the part of accused we are told that when
deceased asked for water to drink no doubt because he was
thirsty after all the assaults or dehydration that naturally results
from loss of blood, accused mocked him by saying how
he could dare
ask for water while he was wasting it (meaning the blood that was
flowing from the deceased). Accused asked deceased
to lick his own
blood from the cement floor and deceased complied.
to relate after police had arrived having twice been sent for by
Mpiti who felt he could not for
the sight of these assaults and cruelty on an unarmed and defenceless
captive; deceased was ultimately taken to the hospital.
learnt of his death the following day.
doctor who performed post mortem examination on 18-12-87 was of the
opinion that death had occurred 4 days earlier. He testified
deceased met his death due to subdural haemorrhage. In his findings
he had observed that immediately below the open wound
on the scalp
there was a fracture of the skull below which there was collection of
blood which he thought caused the death.
Moorosi argued that intention to kill has not been proved. The Crown
maintained this was proved beyond reasonable doubt.
It is my
considered opinion that even though there cannot be said to have been
a positive desire on the part of accused to kill
deceased in view of
the evidence which showed he was anxious to have police to come and
collect the deceased, he was nonetheless
reckless in that even though
it must have been apparent to him that when thus being suspended by
his neck and being let to drop
to the ground from a considerable
height deceased might die, accused nonetheless did those acts and
ultimately even hit him on
the head with a stick.
the evidence by the doctor that it is this blow to the head that
resulted in deceased's death. I reject the submission
cannot be said to have intended hitting deceased on the head based on
highly discreditable evidence by one of the
crown witnesses who was
led by counsel for accused 2 to say the blow was accidental in that
while accused one's blows were concentrated
on upper and lower limbs
deceased head obstructed their path that once and made him sustain
that fatal blow.
be countenanced by this Court for anybody to take the law into his or
her own hands.
is found guilty of murder as charged.
gave evidence in extenuation, I was satisfied that deceased had
committed enough unlawful acts to provoke a man in
the nature of
the accused to feel that some form of punishment is due and fitting
for him. I have taken into account evidence led
albeit go late in the
day that accused had taken liquor.
should suffice to reduce accused subjective or moral blameworthiness.
however found that it appears prison sentences do not seem to have
any corrective effect on accused's conduct.
admitted committing a previous murder conviction for which he was
sentenced to 12 years in 1966 and a further attempted murder
sentence to impose is that of 15 years' imprisonment.
: Mr. Mokhobo
Defence : Mr. Moorosi for Accused 1
Molapo for Accused 2
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