HIGH COURT OF LESOTHO
by the Hon. Mr Justice Sir Peter Allen on the 30th day of May, 1988
accused is a 54 years old chief. He is indicted on a charge of
murder. It is alleged that on 21 September 1986 at Motimposo
Maseru, he killed 'Masechaba Modise Radebe, a 45 years old unmarried
woman who was at the time living with him as his wife.
evidence of five witnesses given at the Preparatory Examination was
admitted, including the post mortem examination report (exhibit
prosecution case was that on the evening of Sunday, 21 September 1986
the accused was in Motimposo looking for the deceased
had gone out somewhere. He called at the home of one Sophie Kolobe
(evidence admitted) asking if she had seen his
Sophie described the accused as looking very angry and carrying a
stick. He went away when he found that the
deceased was not at
the deceased was drinking beer at the home of one Mahloko, according
to 'Maben Motsoari
admitted) who was also present. She described the deceased as
"heavily drunk" and unable to stand up. 'Maben
to stand and supported . her to a certain house and left her in the
courtyard. Evidently that is where the accused found
her on his
return to his house at around midnight. Their voices were raised in a
quarrel which disturbed their neighbours.
these neighbours were Majara Theko (PW1), a 33 years old son of the
accused and Sekhobe Phafane (PW2), a builder. Neither
of them went to
the scene but both described what they heard. It seems that the
accused chief was suspended at the time, or for
some other reason not
performing his duties as a chief, because his son Majara was then
acting as chief.
stated that he heard his father say loudly to the deceased,"You
bring men when I am not here. Your mother's vagina."
deceased replied "Leloko forgive me so that I should tell you
what happened." The accused said, "Is it now that
realised that we can talk together? Your mother's anus."
heard the deceased call out, "Don't cut me there" and he
heard the sound of a stick hitting someone and the deceased
"Jo, Ntate Leloko, forgive me." The accused said, "Of
course I am cutting this vagina of yours."
having heard all this decided not to interfere and he simply went
back inside his house to sleep. This was in spite of the
fact that he
was acting as chief and had a clear duty to deal with any trouble or
disturbance in the area.
witness Sekhobe (PW2),also heard the quarrel. He said that he heard
the deceased say, "Ntate forgive me." The
"It's a long time since I've been telling you not to go out at
night. Tomorrow you will know me." He
added, "I will cut
this vagina to show you that I don't love you any more." The
deceased said, "Forgive me, Ntate.
Look you are killing me."
Sekhobe said that when the noise of the quarrelling stopped he went
back inside his house. He also
later the accused locked the door of his home and then went out to
look for one Lenka Tejane whom he claimed the deceased
had named as
her lover. The accused went first to the home of a woman called
'Mathebe Lebatla (evidence admitted) to ask her to
show him where
Lenka was staying. She said that the accused was very angry. She took
the accused to the home of Sechaba Raletsatsi
(PW3) whom the accused
stated was in fact named Lenka Tejane, though the latter denied this
and the accused arrived at Sechaba's home at some time around
midnight. The accused entered and told Sechaba to get
and to go with him without explaining what it was all about. On the
way to the accused's home they met a nightwatchman
called Mokoma to
whom the accused spoke saying, "This is the one that I was
arrived at the accused's home the accused unlocked the door and told
Sechaba to go inside.
accused followed him in then relocked the door and removed the key
after switching on the light.
said that he saw pieces of broken pots on the floor and he found the
deceased lying on the floor. She appeared to be very
called out to the accused, "Ntate, I am urinating blood."
He did not reply. Instead he went into another room
and came back
with a pair of handcuffs which he placed on the table. He went back
into the bedroom and brought a stick and an iron
rod and struck
Sechaba with them. ' When Sechaba asked why he was doing that the
accused replied that he wanted to do the same
thing to Sechaba as he
(the accused) had done to his wife (the deceased).
said that, in spite of being injured by the accused's assault, he
defended himself and he choked the accused until he raised
and indicated that Sechaba should release him, which he did. The
accused then unlocked and opened the door and told Sechaba
Sechaba said that the deceased remained lying on the floor without
moving during this incident and she appeared to be dead
did not notice any injuries on her.
stated that he did not know why the accused assaulted him as he was
not the deceased's lover. He denied that the accused
together with the deceased on that night. He said that he did not
know the name Lenka Tejane.
following morning the accused came to the house of his son Majara
(PW1) and said, "Last night
I beat my
wife. I don't know whether she is dead or unconscious." He asked
Majara to go and see what had happened to her. The
(PW2) also went to the accused's home on that morning. Both witnesses
said that they saw marks on the ground from
the gate up to the door
of the house as if something had been dragged into the house.
There were also spots of blood on the
ground. In the first room there
were broken pots and ash trays lying on the floor together with some
human faeces. In the bedroom
they saw the deceased sitting upright on
the floor with her back supported against a bed. There was blood on
her mouth and nostrils
and she was dead. She was wearing a black
blouse and a dress.
was also seen by Det. Sgt. Molefi (evidence admitted) who went to the
scene on that morning. The accused identified the
deceased to the
sergeant. He examined the body and noted the blood on her nostrils
and mouth. He also found that she had a fracture
on her left leg
above the ankle and there was a laceration in the area of her private
parts. He arrested the accused and took him
to the charge office. He
took the body of the deceased to the mortuary in Maseru.
October 1986 the post mortem examination of the deceased was carried
out by Dr. Msulwa (evidence admitted). The body was identified
by 'Mathabiso Radebe (evidence admitted) the mother-in-law of the
deceased. The doctor found that the deceased had a laceration
pubic area and a
simple fracture of the left tibia and fibula distal. The head
injuries consisted of a laceration of the frontal region on
side and there had been bleeding through the nostrils. There was also
a laceration of the lower gum and a missing upper
tooth. Inside the
skull was a collection of blood (cephal haematoma and intracranial
haemorrhage). This last was the cause of death.
The lacerations had
been caused by a sharp object and the remaining injuries, including
the fatal one, were caused by a blunt object.
His P.M. report was
admitted as exhibit 'A'.
accused testified on oath in his defence. He said that he had lived
with the deceased as man and wife for 15 years. When he
home that night he claimed that he saw two people sleeping on the
grass in the forecourt of his home. One of them ran
away when he
approached them. The other he found lying on the ground with her
knees bent. It was the deceased and she was very
drunk. He admitted
that he then kicked her twice, once in the stomach and once in the
private parts while he asked her who had
been with her. She replied
that it was a person whom she was in love with. After further
questioning she told him that the man
was Lenka Tejane who had been
working in their garden.
accused dragged her into the house. As they reached the door he was
holding her up on her feet. As he switched on the light
from him and fell backwards on to the concrete step. He said she
turned as she fell and her head struck the edge
of the step and that
caused the fatal head injury.
accused did not know where Lenka Tejane was staying so he first went
to the home of Mathebe Lebatla (evidence admitted) and
asked her to
take him to Lenka. She took him to the home of the witness
Sechaba (PW3) whom the accused said he knew as Lenka
accused ordered Lenka to go with him to the accused's home so as to
see what he had done at his place. Lenka did not
hesitate or ask
questions. He just followed the accused to his home.
arrived the accused unlocked the door and they went inside. They
found the deceased sitting on the floor and she said,
the one who was
with me." Lenka denied it saying, "No, it was not me."
The deceased said, "It is no use to deny it
because it has
accused fetched a pair of handcuffs from the bedroom and said to
Lenka, "Now what you have done here is the situation,"
meaning apparently that Lenka had slept with the deceased. The
accused picked up a stick which was as thick as two fingers, and
Lenka on top of the head with it once. Lenka seized hold of the stick
and they struggled for it. Lenka said that the accused
him and he ran away through the door which the accused said he had
left unlocked after they entered the house. The
accused ran outside
and threw the stick at Lenka but missed him as he ran off.
accused then left the deceased sitting on the floor and looked the
door and went to Mathebe's house for the rest of the night.
accused denied having beaten the deceased apart from the two kicks.
denied saying that he no longer loved the deceased and that he would
cut her vagina. He said that his son Majara (PW1) and
Sekhobe (PW2) were lying about that incident. He said that it was
only Lenka whom he struck with the stick, not the
claimed that the leg fracture on the deceased was an old injury and
that the head injuries were caused when she fell
on to the step.
very clear that the deceased was extremely drunk on that
evening. Whether or not the accused was telling the truth about
finding her with another man in the courtyard is not so clear. The
accused admitted assaulting the deceased by kicking her twice
there was evidence that he was in a very angry mood when he was out
looking for the deceased. Something clearly provoked him
medical and police evidence was of numerous injuries, lacerations and
bruises on her body, including a fractured leg and
tooth. All this indicates that she was badly beaten up. Nobody else
had any apparent reason to assault her nor is there
any evidence of
any other person being present at the scene except Sechabe (PW3) who
was brought there afterwards by the accused
the accused admitted looking the deceased in the house for the period
when he left her there alone. Thus it is clear
that nobody else had
access to her or reason to assault her except the accused.
head injury was inflicted in the presence of the accused. He claimed
that it occurred when she fell while he was holding
her but I do not
believe him. I have no doubt that the accused gave her a very serious
beating and that, in her drunken condition,
she was unable to defend
or protect herself. Even if she had fallen and struck her head on the
step while the accused was beating
her, he would still be responsible
for the fatal injury. This is because his assault upon her was
vicious and very serious and
completely unlawful. Whether her fatal
injury was caused by a blow actually struck on her head or by falling
down while being assaulted,
the fact remains that her death
resulted in the course of the accused's unlawful actions and he is
responsible for the result.
I therefore find that he unlawfully
caused her death.
I do not
find sufficient evidence of the accused having formed an intention to
kill her. It is clear however that the accused intentionally
a thorough beating. Since her death resulted in the course of that
beating I am of the opinion that the offence committed
by the acused
did not amount to murder but, instead, he must be convicted of
culpable homicide. The Assessors agree with this verdict.
the accused is convicted of culpable homicide.
accused is aged 54 years and he is a chief. He is a first offender
and he has been on bail awaiting trial.
take account of the fact that he twice offered a plea of guilty to
the offence of culpable homicide before this trial started,
Crown would not accept the plea. The accused has therefore not wasted
the Court's time.
accused gave the deceased woman a very savage beating. Such lack of
control and such vicious behaviour is not what is expected
chief and a man of his age. Even if he was provoked by the deceased
it was inexcusable to beat up a defenceless woman in
such a serious
and shameful way. In my opinion the accused is clearly unfit to hold
the post and authority of a chief. In the circumstances
there is room
for some leniency but, at the same time, I have to consider the
accused's special responsibilities as a chief.
accused is sentenced to imprisonment for five years.
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