HIGH COURT OF LESOTHO
by the Honourable Mr. Justice J.L. Kheola on the 21st day of
accused is charged with the murder of 'Makhano Lethakha, it being
alleged that upon or about the 4th day of September, 1988
and at or
near Tloha-Re-Buoe in the district of Mokhotlong, the said accused
did unlawfully and intentionally kill 'Makhano Lethakha
accused pleaded not guilty to the charge.
defence admitted all the depositions made by the Crown witnesses at
the preparatory examination. They also admitted the post-mortem
examination without requiring the doctor who made it to appear before
the Court for cross-examination. According to the doctor's
death was due to most likely a sharp cut of arteria
communis decter. She had a wide open wound from below the right ear
to the middle of the lower chin. There was a small wound
right ribs and scratches on the back. The face and head were covered
Thokolo Mporo testified that on the 4th day of September, 1988 he was
at his home at Tloha-Re-Buoe. It was in the early hours
of the day.
He saw the accused at the deceased's kraal. About an hour later the
accused came to his house and told him that he
had visited the
deceased but found her dead in the house. Accused told P.W.1 that he
had seen blood next to the head of the deceased.
He asked P.W.1 to
come and help him remove the body to another hut since that one had
property in it and it would be unwise to
have a vigil held in there.
P.W.1 refused to do that and told him that he was going to call the
people to come and see. The accused
said the deceased had been killed
by the Gods (balimo). P.W.1 disagreed with him and went ahead and
raised an alarm.
people came and they all entered into the house with the accused.
They found the deceased lying in the middle of the house.
was stark naked. There were pools of blood on both sides of her head.
There was an open wound extending from below the
right ear round
throat to the left ear. The gullet was visible. There was a shoe
print with straight lines running across the shoe
on one of the blood
pools. That shoe print was similar to the prints of the shoes the
accused was wearing.
accused was searched and his attire examined. It was found that his
blanket, his overall and his one shoe were blood stained.
When he was
asked about the condition of his attire he gave conflicting answers.
Headman Matekoane Sodane sent for the police.
When they arrived they
made their own investigations and the accused produced a knife from a
window. As far as P.W.1 observed the
knife had no blood stains. At
the deceased's kraal an iron rod belonging to the accused was found.
It had blood stains.
police seized all the blood stained articles and took them away. The
accused and the body of the deceased were also taken away
Mokhotlong in a police van.
evidence of P.W.2 Letheba Joel is almost identical with that of
P.W.1. I do not propose to give its summary.
Matekoane Sodane is the headman of Tloha-Re-Buoe village. On the day
in question he received a report from P.W.1. As a result
report he went to the home of the deceased where he found many
people. P.W.1 asked him to go into the house and see for
found the deceased lying on her back in the middle of the house. She
was naked. She was lying in a pool of blood; her
throat was cut and
she appeared to have been slaughtered like a sheep because there was
an open wound around her neck. There was
a shoe print on one of the
pools of blood. He observed the blood stains on the attire of the
accused, on his shoes and on his iron
rod. The woollen ropes that
wrapped the iron rod were also covered with blood.
police were called and after interrogation the accused produced a
knife from the window. P.W.3 says that the knife was blood
but P.W.1 said it was not so stained. The accused, the body of the
deceased and all the exhibits were taken to Mokhotlong.
Prior to the
burial of the
the police came to Tloha-Re-Buoe accompanied by the accused. He led
them to a place called Mokhoabong where he stayed and
knife hidden in a bundle of straw in a wall. It was wrapped in a jute
explained that the deceased was accused's grandmother. They had
quarrelled on several occasions over the estate of the late
of the deceased. Just before she died she had informed her headman
that she intended to call a family meeting to discuss
with the accused.
Leseko Lethakha confirmed the events which took place at the home of
the deceased in the same manner as the witnesses mentioned
went further to say the accused and the deceased were never friendly
to each other. The deceased used to tell them that
the accused always
arrived at her home and spent the night there without her consent and
further that the accused had once broken
her door. They called the
accused to family meetings on several occasions but he never
attended. They were to meet at the deceased's
house on the very day
she met her death. The
and the deceased were quarrelling over the estate of the deceased's
late husband because he had no son left to inherit after
evidence of P.W.5 Oele Sodane has nothing to add to what we already
Thoriso Lethakha confirms that the animosity between the accused and
the deceased was over the estate of the late deceased's
died a long time ago leaving no heir. The family sat about four times
in order to resolve this problem but the accused
refused to attend.
On the day she met her death the family was to meet at her home to
discuss this issue.
evidence of the police deals with the injuries found on the body of
the deceased, the seizure of the exhibits which had blood
sending them to the laboratory for classification in terms of blood
groups. The findings were conclusive that the blood
found on the
clothes of the accused was of the same group as that found on the
clothes of the deceased.
accused testified that because the
did not have an heir the family appointed him as the heir in that
house. He and the deceased lived in the same family homestead.
never lived harmoniously with the deceased because she expelled him
from her home on five occasions, He always returned because
father insisted that he must go back as a person who was made heir in
the house of the deceased.
day he killed the deceased he had received information from one
Tlhoriso that the deceased and some people from a place called
Mateanong were planning to kill him at any time. One boy in the
village confirmed that he (accused) was going to be killed. On
fateful night he went to the house of the deceased and the people who
were supposed to kill him were not there, However he
opened the door
and the deceased who was already in bed rushed at him and asked
whether he was already there. He caught hold of
her and threw her to
the floor and pressed her down. He ordered her to bring back all his
expenses so that he could go away. He
then stabbed her with a knife
and cut her throat. The deceased was struggling and kicking before he
accused went on to say that the expenses he referred to are in
connection with the roofing of one of the deceased's house and
building of another house. The deceased drank liquor excessively and
used to insult him.
cross-examination the accused said that when he was appointed heir of
the deceased one Qai and one Lithako were present and
with his father about the appointment since the deceased had no male
issue. When she rushed at her she caught him by
his blanket and
pulled him. She could not succeed to pull him because she was not
strong. He said that when he threw her to the
floor and pressed her
down and stabbed her he suspected that those people who were supposed
to kill him were coming; but they were
not there when he killed her.
close of the defence case I suspected that the accused might have
been suffering from some sort of mental derangement
and ordered that
he must be examined by a psychiatrist. A report was to be made and
submitted to the Court. However before then
I called his father,
Litsela Lethakha, to clarify certain issues.
evidence was to the effect that when the accused was weaned he was
given to the deceased and her husband to be their heir. This
at the request of the deceased's husband. After the death of the
deceased's husband the relations between the deceased
sour and she expelled her from her home on five occasions. His father
ordered him to go back insisting that deceased's
home was his home.
As far as the mental disease is concerned the father of the accused
said that his son suffered from a disease
which made him sleep but he
was never violent. He took him to traditional doctors and to a
medical practitioner at Butha Buthe
Hospital once in 1964. The
accused and the deceased did not live happily because latter drank
wine, smoked dagga and was very violent.
Ministry of Health failed to get a psychiatrist and the report was
made by a General Medical practitioner, Dr. Msulwa assisted
psychiatric nurse, Mrs. Makara. The findings were that the accused is
medically and mentally fit and can stand trial. The
report is marked
for the Crown depends on
evidence as well as a confession which was made by the accused in
court when he made a sworn statement. The circumstantial
relates to the fact that the accused's blankets, overall and shoes
had deceased's blood stains. The print of his shoe
was found on one
of the blood pools found on the sides of the body of the deceased.
The circumstantial evidence suggests that the
accused had something
to do with the daceased just before she died or immediately
morning the accused told P.W.1 that the deceased had been killed by
the Gods. He was actually telling a lie since the Gods
cannot cut a
person's throat with a sharp object. He later produced two knives
which he had hidden in different places.
he made a very detailed account of how the killed the deceased. He
took a pre-empted strike at the deceased because one
informed him that the deceased intended to kill him assisted by
people from Mateanong, On the night in question he
had the intention
to kill her and went to her house and pushed the door open and
lady who was sleeping and naked. He brutally murdered her by
slaughtering her with a knife. He told the Court that he had
intention to kill her.
formed the opinion that the accused was not insane when he killed the
deceased. In any case, he never raised insanity as
his defence. He
said the deceased provoked him by insulting him. I think she insulted
him as a last resort because he was already
pressing her to the
ground when she insulted him. It was a way of expressing her anger at
a young man who was not ashamed to do
that kind of thing to an old
lady who was naked. I do not see how an insult from the deceased can
be regarded as provocation when
the accused was the initial
aggressor. He was just about to slaughter her when she insulted him.
accused had the requisite intent for murder in the form of dolus
directus. I accordingly find him guilty of murder.
- Mr. Mdhluli
Defence - Mr. Fosa.
extenuating circumstance is a fact associated with the crime which
serves, in the minds of reasonable men, to diminish, morally
not legally, the degree of guilt.
In Rex v.
Biyana 1938 E.D.L. 310 at pp. 311-312 Lansdown, J.P. said:
"But be that as it may, when we find a case like this, where
there is a profound belief in witchcraft, and that the victim
practised it to grave harm, and when we find that this has been the
motive of the criminal conduct under consideration, we
feel bound to regard the accused as persons labouring under a
delusion which, though important in any way to alter their guilt
legally, does in some measure palliate the horror of the crime and
thus provide an extenuating circumstance. Their position is
to that of a man who genuinely but erroneously believes he has been
the victim of a grievous wrong, and, while suffering
under a sense of
this grievance, deliberately endeavours to avenge himself upon the
supposed wrongdoer by killing him. His crime
is not reduced in law by
such a belief, but such a belief, genuinely and not unreasonably
entertained might provide a measure of
mitigation, and therefore
become an extenuating circumstance."
clear that provocation short of what is required to negative guilt
may constitute an extenuating circumstance. Moreover, X's
instability may be such, as a result of a series of events spread
over a long period of time and not strictly amounting
as to amount to
extenuating circumstance. In R v Von Zell 1953 (3) S.A. 303 (A.D.) at
p. 314, for instance, one of the extenuating circumstances
by the Appellate Division was:
"the strains and stresses to which appellant was subjected
because of his relations with his wife and her daughter, because
his wife's desertion and because of the legal proceedings which she
instituted against him".
instant case the accused was adopted by the deceased and her late
husband. He was made their heir. It seems that after the
death of the
deceased's husband, the relations between the accused and the
deceased turned sour. By then the accused was a grown
up man. Re had
built a house for the deceased and re-roofed another one at his own
expense. The deceased often expelled him from
her home. Family
meetings were convened on several occasions but the accused never
attended them. These quarrels continued over
a long period of time.
On some occasions the accused went to his parents' home but his
father ordered him to return to deceased's
home claiming that it was
home and he must stay there. He instructed his family not to give
food to the accused so that he must go back to deceased's
accused found himself between the devil and the deep blue sea. While
he was in this confusion he alleges that he received a
the deceased and some people were planning to kill him. He genuinely
but erroneously believed this allegation that
the deceased and some
people were going to kill him. He erroneously believed this
allegation because it is common cause that the
deceased hated him
very much. He believed that he had been a victim of a grievous wrong
in that he thought the deceased was depriving
him of his own home. He
came to this home at a very early age when he was weaned. He made a
lot of improvements to that place.
In addition to this grievance
there was a plan to kill him. He then decided to avenge himself upon
the deceased by killing her.
into account the strains and stresses to which he was subjected by
the deceased and his own father for over a long period
of time and
the erroneous but genuine belief that he was going to be killed, I
have come to the conclusion that there
two (22) years' imprisonment.
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