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.

2

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,

3

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.

4

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

5

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

6

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

7

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

8

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).

9

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

10

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

11

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.

12

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.

J.L.
KHEOLA

JUDGE

16th
August, 1993.

For Crown
; Mr. Ramafole

For
Accused : Mr. Fosa,