CRI\T\45\90
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
and
MONAHENG KOBELI Accused
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Khaola on the 16th day of August. 1993
The accused is charged with murder, it being alleged that upon or about the 25th day of March, 1990 and at or near Mpharane in the district of Mohale's Hoek, the said accused acting unlawfully and with intent to kill, did assault Abiel Khosana and inflict certain injuries upon him from which the said Abiel Khosana died on the 15th day of April, 1990.
The accused pleaded guilty to the charge. The plea was, however, entered as a plea of not guilty. Mr. Mathafeng, counsel for the accused applied for a short break to consult with his client. After that short break he informed the Court that he was withdrawing from the case.
After several postponements the matter was heard pn the 4th August, 1993. Mr. Fosa appeared for the defence.
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According to the post-mortem examination report (Exhibit "A") the cause of death was left subdural haemorrhage. There was linear fracture of parietal bones.
P.W.1'Mapompa Monaheng is the single eye-witnese in the present case. She testified that both the accused and the deceased were her lovers. She had been in love with them for more than two years. They were both married but she was not. On the 25th day of March, 1990 she went to a drinking place at the home of Pompi in the village. She arrived there at about midday and started drinking Sesotho beer until about 8.00p.m. when she left accompanied by the deceased who had arrived at dusk. It is her evidence that at dusk the accused had also arrived. He sat near the door for some time and then left. He was wearing a dark-grey blanket with Crowns. She did not see what he was holding in his hands because they were covered by the blanket. She saw him well although she did not speak to him.
At about B.00p.m. she left the drinking place. She was accompanied by the deceased. When they passed below Elton's yard she heard footsteps coming from behind them. She looked back and saw that it was the accused. He was coming in a hurry. He came to them and struck the deceased on the head with something she did not see what it was. The deceased fell down. She ran away immediately and went to her parents' home,
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It is common cause that thereafter the deceased was found by one lady who was returning from the same place as the deceased and P.W.I. The deceased was lying there alone and the lady was under the impression that he was drunk because he was snoring. She reported the matter to the chief.
P.W.1testified that although there was no moonlight it was not dark because there were no clouds. On this point she is corroborated by the lady who found the deceased lying there and snoring. She had no difficulty to see and identify the deceased. She said that the accused did not utter a single word when he struck the deceased on the head. She did not report what happened to anybody until the deceased was found and an alarm was raisred. She did not report because she was frightened.
It is common cause that at the time of the trial P.W.1had very poor eyesight. She could not even identify or see that the person who was in the dock was the accused. She told the court that her eyesight problems started in April this year. In March, 1990 her eyesight was perfect.
In cross-examination a P.W.1said that on the night in question she was not very drunk and she was not staggering. She saw everything that transpired. She did not warn the deceased that the accused was coming because he came in a hurry.
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Furthermore she did not know that he was coming to harm the deceased in any way. At worst she thought that the accused was coming to her. She denied that the accused came to the drinking place at sunset.
P.W.1says that after the death of the deceased she and the accused were instructed to report at the charge office on a daily basis for about two weeks. During that period they were interrogated by the police. They denied all knowledge about the death of the deceased. At last the policemen who used to interrogate her told her that they were inviting policewomen (her equals) from Mohale's Hoek to come and interrogate her. Knowing that policewomen would assault her she decided to tell the truth that it was the accused who assaulted the deceased. She says that she did not falsely implicate the accused. It is true that the accused assaulted the deceased. When it was put to her that the stick (Exhibit "1") was fetched from the home of the accused on the day following their detention, she denied this. Her story is that Exhibit "1" was fetched after two weeks when she decided to tell the truth.
P.W.5 Detective Trooper Malefane testified that on the 26th March, 1990 the deceased was brought to the charge office in a vehicle. He referred him to the local clinic and accompanied him. The deceased was still alive but he could not speak. He
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had a wound on the middle of the head towards the right aide. It was an open wound but not bleeding.
On the same day he went to the village of Ha Phala in order to attend to the scene of the crime. The chief showed him the spot where the deceased was found. He saw blood there. His investigations revealed that the last time the deceased was seen he was in the company of P.W.I, He looked for her and found her. She denied any knowledge about the assault of the deceased. P.W.5 says that he asked P.W.1to come to the charge office with him. When they came to the gate of the charge office she told him that she was afraid to tell him the truth. He then took her statement in which she implicated the accused. He released her.
On the 27th March, 1990 P.W.5 went to Ha Phala again and found the accused. He cautioned him and charged him with assault. He asked the accused what he had used. He said he had used a stick. P.W.5 says that the accused led him to his (accused's) house and produced a stick (Exhibit "1") from behind the suitcases where he had kept it. No pressure was applied to the accused to force him to make a statement.
In cross-examination P.W.5 denies that P.W.1had to report herself at the charge office for two weeks. He, however, admits that the policewomen were summoned from Mohale's Hoek to come and
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interrogate P.W.1in the proper manner. The accused was taken to Mohale's Hoek magistrate's court (or remand on the 28th March, 1990.
At the close of the Crown case the defence closed their case without calling any witness.
The evidence of P.W.1has been challenged in cross-examination on the grounds that as it was at night she could not have properly
identified the accused and that she was drunk.
The evidence of P.W.1and P.W.2 as well as that of 'Mathakane Lekhoro, who was P.W.2 at the preparatory examination and which was formally admitted by the defence, is that although it was night it was not dark because the sky was clear. They had no difficulty to identify the deceased where he was found lying. I have no doubt that P.W.1saw or identified the accused without any difficulty because he was very close to her when he struck the deceased on the head with a stick.
I accept the evidence of Trooper Malefane that P.W.1made a statement implicating the accused on the same day she arrived at the charge office. She must be mistaken that she made such a statement after two weeks of her reporting at the charge office. She is giving evidence of the events which took place
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over three years ago. The evidence of Trooper Malefane is more reliable because he has access to the police docket and his notebook from which he must have refreshed his memory before he came to court to give evidence.
The allegation that P.W.1was drunk is accepted by her but she says she was not so drunk that she was unable to see what was taking place around her. I accept her evidence on this point because she narrated the events very well and without any hesitation. She was not shaken at all by the long and rigorous cross-examination by the defence counsel. On the whole the impression I formed of her is that she was an honest and reliable witness.
The accused exercised his right to remain silent after the close of the Crown case. I do not think that this was a wise decision because there was evidence which directly implicated him. He decided to leave that evidence unrebutted. I find it hard to reject the evidence which the accused has chosen not to deny. The accused's failure to testify has strengthened the crown case (See S. v. Nkombani 1963 (4) S.A. 877 (A.D.) at p. 893G.).
The fact that the accused pleaded guilty and never changed his plea must be taken into account in deciding the guilt or
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otherwise of the accused. The indictment was thoroughly explained to him in Sesotho and I have no doubt that he clearly understood it. His first Counsel was not happy with that plea and asked for a short break. When they came back he suddenly decided to withdraw from the case. Whatever they discussed during the break but the plea was never changed. A new Counsel, Mr. Fosa, took over from the previous counsel. He also did not change the plea. I am of the view that the accused is bound by his plea because he has not given any explanation why he tendered that plea.
In S. v. Britz, 1963 (1) S.A. 394(T), it was held that an accused wishing to withdraw a plea of guilty must give a reasonable explanation as to why he had pleaded guilty and now wishes to change his plea. If he fails to give an explanation the court would be entitled to hold him to his plea of guilty. If he does give any explanation there is no onus on him to convince the court of the truth of his explanation. Even though his explanation be improbable the court is not entitled to refuse the application unless it is satisfied not only that the explanation is improbable, but that beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he should be allowed to withdraw his plea of guilty (see also R.v. Nathanaon, 1959 (3) SA 124 (AD).
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Mr. Fosa submitted that because there was no evidence of medical treatment at Mpharane Clinic, Mohale'a Hoek Hospital and Queen Elizabeth II Hospital the court must not rule out the possibility of novus actus interveniena. I do not agree with that submission. There must be proof that there was novus actus interveniens. It cannot be inferred on the mere fact that there is no evidence of how the deceased was treated. In R. v. Motomane 1961 (4) S.A. 569 (W.L.D.) there was evidence of that the causal chain had been broken and the Crown had failed to prove that the accused was responsible for the death of the deceased.
In R. v. Du Plessis 1960 (2) S.A. 642 it was held that:
"Where a wound is inflicted and the person is placed in the care of a medical practitioner and the person dies, then the person who inflicted the wound is responsible for such person's death unless the medical practitioner by his negligent or intentional act introduced a nova causa which is actually the cause of death. The causal connection between the infliction of the wound and death which resulted is broken thereby. Where there is no nova causa
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introduced from the outside by a third person, and the death results as a natural consequence of the infliction of the wound, having
regard to the bodily condition of the injured person, then the person who inucted the wound was the cause of death. The fact that the deceased on account of his age, constitution or habits, was more vulnerable or prone to the result that followed, does not affect the causal connection."
In the present case there is medical evidence which shows that the deceased died as a result of the injury inflicted by the accused.
Exhibit "1" is a very heavy stick indeed. When the accused struck the deceased on the head with it he foresaw the possibility that his act was likely to cause the death of the
deceased but he was reckless as to whether it occurred or not.
The accused is found guilty of murder.
My assessors agree.
J.L. KHEOLA
JUDGE
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Extenuating Circumstances
In its judgment the Court found that the intention in the present case was one usually known as dolus eventualis which is usually regarded as an extenuating circumstance.
It was submitted that as the accused was in love with P.W.1he was overcome by jealousy when he found her at night with another man. He was justified in thinking that they must have had or were about to have sexual intercourse. In Rex v. Molomo (2) 1976 L.L.R. 64 at p. 74 Cotran C.J. said:
"Fourthly, seeing the deceased with another man, and a married one at that, in a hut alone he was justified in assuming that they proceeded there to engage in sexual intercourse, and although, objectively speaking, it was not reasonable for him to behave in the way he did since she was not his wife, subjectively, quite obviously, he must have been consumed by so much jealousy that his vision became clouded, and hence he is morally less blameworthy."
I find that there are extenuating circumstances.
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Sentence:- In passing sentence I took into account that the accused is a first offender; he has been in custody for a period of three years; he pleaded guilty to the charge and that is a sign of remorse and an indication that he did not want to waste the Court's time.
He is sentenced to eight (8) years' imprisonment.
Exhibit "1" is forfeited to the Crown.
16th August, 1993.
For Crown ; Mr. Ramafole
For Accused : Mr. Fosa,
