HIGH COURT OF LESOTHO
MABOKA 1ST ACCUSED
RANKHELEPE 2ND ACCUSED
by the Honourable Chief Justice Mr. Justice J.L.Kheola on the 15th
day of December. 1999
1 the accused are charged with murder. In that upon or abut the 11th
February, 1993 and at or near Matlameng, in the district
the said accused, one or the other or both of them, unlawfully and
intentionally killed 'Maphopko Phooko.
2 the accused are charged with arson. In that upon or about the 11th
February, 1993 and at or near Matlameng, in the district
the said accused, one or the other or both of them, did unlawfully
and with intent to injure 'Maphooko Phooko in her
property set on
fire and thereby damage a certain house being an immovable property
of the said 'Maphooko Phooko.
tendered a plea of guilty of culpable homicide in Count I and not
guilty in Count 2. Accused 2 pleaded not guilty in both
Crown did not accept a plea of guilty of culpable homicide and
decided to prove murder.
'Mathabo Mathabe testified that she is illiterate. The deceased was
her elder sister's daughter-in-law. One day she went to
the home of
the parents of Accused 1. Her visit there was about a day after the
brother of A1 had been killed by lightning. She
says that she had
not visited that family in order to give her condolences concerning
the death of their late son. I agree with
the submission by Mr.
Teele, counsel for the defence, that according to Basotho custom it
was unusual for P.W.1 to pay a casual
visit to a family that had just
lost a son who was struck by lightning and not for the purpose of
expressing her condolences. It
is not clear why she had gone there
for. She says that while she was at the home of the parents of Al she
saw the deceased go to
the home of her (P.W.1's) sister's home.
decided not to go to her sister's home because she apparently did not
want to meet the deceased there. She did not get along
deceased because on one occasion she (deceased) threatened to kill
her (P.W.1's) child or herdboy with lightning and to
kill the child's
mother with "thokolosi". She had also insulted her herdboy.
She believed the threat made by the deceased
and was frightened.
days later she was at her home when she heard an alarm being raised
by one Thato. He was shouting that A1 was killing the
went to the deceased's place but did not find any of the accused. She
examined the deceased and saw weals on her
back. On the following day
she attended the meeting at the chief's place. The two accused and
the deceased were present at that
meeting. They told the chief that
their relatives had told them that P.W.1 had told them (relatives)
that P.W.1 informed them that
the deceased was responsible for the
death of A1's brother because she struck him with lightning. P.W.1
denied this report. It
was obviously a hearsay report because the
relatives of the accused were not at the meeting.
Chieftainess (P.W.2) decided that the matter should be passed to the
senior chief. At the senior chiefs place the accused repeated
story that P.W.1 had told their relatives that deceased had killed
A1's brother with lightning. P.W.1
this allegation. The senior chief did not finally decide the matter
because the accused asked for a postponement in order
to call their
witnesses. The postponement was unfortunate because on the night of
the same day that the matter was postponed the
deceased was killed.
P.W.1 says that at down one Moeno came to her place and told her that
the deceased had been killed. She went
to the deceased's home and
found her dead. Her house had been destroyed by fire.
says that at the two meetings of the chiefs the accused said that
they would eventually kill the deceased for the death of
of A1. In re-examination P.W.1 said that A2 had said that he would
help A1 in the killing of the deceased.
"Masesu Mashili is the Chieftainess of Matlameng. The deceased
was her subject. She testified that one day before the
killed the two accused came to her place and reported that they
chased the deceased because P.W.1 had told them that
the brother of
A1 had been struck by lightning by the deceased. They said that they
wanted to kill the deceased for what she had
done. She decided that
they should come on the following day in order to discuss the issue.
They all came including the deceased
and the matter was discussed.
P.W.2 apparently found the matter to be too serious and referred it
to her senior chief.
denied that she said the deceased killed the brother of A1.
testified that when the two accused first came to her place and
reported that they had chased the deceased for killing A1's
with lightning A2 also spoke and said that they would kill the
deceased for what she had done. But at the two meetings
chiefs A2 said nothing. She testified that the deceased was generally
feared by the villagers because they believed
that she was a witch.
On previous occasions some people had chased her for practising
witchcraft but she outran them. One Makione
had chased her because he
believed that she had bewitched his relative. She outran him.
to the report of post-mortem examination the cause of death was
haemorrhagic shock due to multiple stab wounds: Five on
breast penetrating the heart. Another stab wound on the right breast
and bums on the body.
evidence under oath. His evidence is that his late brother's name was
Maboka. He was still attending school at Khethisa
High School and
still unmarried. A1 was at home when his brother was struck by
lightning. A day after the incident one 'Mamookho
reported to the A1
that P.W.1 had told members of
family that the deceased had killed A1's brother with lightning. A1
says that he was hurt when he heard that because he had
the impression that his brother had died a natural death. He decided
to confront the deceased about this matter. One
day he went to her
home accompanied by A2. When they spoke to her she fled. They did not
chase her, nor did they assault her.
that when deceased ran away when they asked her questions, they went
to the chief's place and asked her to arrange for a
them and the deceased. The meeting was actually held on the following
day. He denies that when they were at the
meeting before the chief he
threatened to kill the deceased. The chief in question was
Chieftainess 'Masesu Mashili who gave evidence
in this case as P.W.2
. She did not decide the matter but referred it to her senior chief.
She went with the accused and the deceased
as well as P.W.1. The
matter was postponed because A1 said that his witnesses were not
there. On the night of the same day when
the matter was postponed the
two accused went to the village in which the deceased lived. A1 says
that they drank a lot of beer
at his aunt's place. They left at 8.00
p.m. He asked A2 that they should go to the home of the deceased in
order to ask her politely
about the lightning which killed his
brother. They were not going to fight.
arrived there she opened the door for them. He told her that they had
come in good faith and merely wanted that they should
discuss what P.W.1 had said at his parent's home. A1 says that the
deceased did not respond but insulted them, saying
they were silly
children and pushed them out of her house. She said they were satans
and that they would follow their brother.
He says that he lost his
power of self-control. He stabbed her with a knife which he took out
of his pocket and unclasped it. She
got hold of the knife in such a
manner that it cut her on the hand. She let it go. He stabbed her
again. A2 then said that they
should leave and they left. He says
that he did not bum the house of the deceased. He does not know how
many times he stabbed the
deceased because he was drunk and angry. He
was also confused and feared the deceased very much. He never
intended to kill her.
He says that at one time A2 caught him and
pulled him asking that they should leave.
remained silent and gave no evidence in his defence.
overwhelming evidence that the community in which the deceased lived
genuinely believed that she was a witch. When the
that she had killed the brother of A1 with lightning, there can be no
doubt that the two accused believed that
she had undoubtedly killed
him. There is evidence by the
'Masesu Mashili (P.W.2) that at the meeting at her administrative
court the accused said that they would kill the deceased.
that when they came to her place for the first time when they had
just chased the deceased and injured her on the back,
A2 did speak
and said they would kill the deceased. At the subsequent hearing A2
said nothing but he was there with the A1.
says that at the meeting at the administrative court of the senior
chief A1 again said that he would kill the deceased. P.W.2
Chieftainess of a village. She impressed me as a truthful and honest
witness who answered the questions put to her in a
manner and without any hesitation.
corroborated the Chieftainess that A1 said that he would kill the
deceased. She said that at one time A2 said that he would
help A1 in
the killing of the deceased. She impressed me as being an honest and
a truthful witness. I believed her when she said
that all she said
about the deceased was that she had insulted her child/herdboy and
threatened to kill him with lightning. Her
story was enough to
convince the members of A 1's family that deceased had killed their
son inasmuch as it was generally believed
that she was a witch. She
had been accused of practising witchcraft on several occasions in the
past and even chased by some people.
Despite her age (60 years) she
used to outrun the people who chased her.
reason it was generally believed that she had supernatural powers.
accused said on two or more occasions that they were going to kill
the deceased. In other words they expressed their intention
her in no uncertain terms before the two chieftainesses when the
matter was discussed. On the night in question they decided
to go to
the house of the deceased. They say their intention was not to go and
kill her but to discuss the matter in a polite way.
This is clearly a
lie. At broad daylight they went to the home of the deceased but she
ran away from them. They chased her and
hit her on the back where
weals were seen by P.W.2 and P.W.1. How did the accused think that a
person who ran away from them at
day time because she was afraid of
them could discuss a serious matter with them at night? No, they did
not go there in order to
discuss anything but to kill her as they had
vowed to do so.
case the matter was already before the senior chief for decision
after hearing A1's witnesses. There was altogether no reason
accused went to the deceased's home to discuss a matter that was
already pending before the senior chief. Furthermore the
clearly shown that she did not want to talk to them and had run away
from them. They were clever because this time
they went to her place
at night and knew they would find her in her house. That is
where they found her and carried out their fell intention of killing
her. She apparently had no chance to escape and the
accused had the
chance to butcher her. They stabbed her five times on the left breast
and all those wounds penetrated the heart.
They knew very well where
the deceased was most vulnerable.
accused claim that they were drunk. This is a lie. There is no proof
at all that they ever drank any beer. To show that they
drunk at all they surreptitiously went to the home of the deceased,
making sure that no person saw them. Having killed
the deceased and
set her house on fire they vanished into thin air. So that when the
people, including P.W.2 rushed to the home
of the deceased when the
alarm was raised the accused had left in a great hurry and were not
found near the burning house. Their
arrival there and their departure
were well planned. No drunken men would do that.
accused invaded the deceased at her home and killed her. The only
reasonable inference to be drawn from the evidence is that
her house alight immediately after stabbing her. That other people
who hated the deceased are likely to have taken the
chance when the
alarm was raised and set the house on fire is nothing but mere
speculation. So far there is no remote possibility
that any person
other than the accused knew that she was going to be killed. Only the
knew that they were going to kill the deceased and then set her house
on fire. Their intention was obviously to bum her
body to ashes.
Fortunately villagers managed to take the dead body out of the
burning house. However the body had already sustained
to the post-mortem examination report.
Teele, counsel for the defence, submitted that the belief in
witchcraft is not a defence. In this instance the belief in
prompted the accused to confront the deceased. He
submitted that on the evidence of A1 which is uncontradicted the
both accused with death. He submitted that that
would be covered by the provisions of Section 3(1) of the Criminal
Amendment) Proclamation No.42 of 1959. (See R. v.
Nathane 1974-75 LLR. 64)
already rejected the story of the accused. The deceased was afraid of
them, as she clearly showed this at daytime when she
ran away from
them. To say that when the accused arrived at her house at night she
was bold enough to confront them and to push
them out of her house
and to threaten them with death by saying that they would follow
their late brother, is not only improbable
but a mere pack of lies.
They went there with the sole intention of killing the deceased.
intention was to get rid of the deceased because their case before
the Chieftainess was to be heard on the following day or
In Rex v.
Nathane - supra- part of the headnote reads as follows:
"The accused was charged with the murder of one 'Matsotleho
Chaole, who was believed by the community to which she and the
accused belonged to be a witch. Following a number of threats by the
deceased against the accused, the accused's wife and child
killed by lightning striking their home and the accused believed that
the deceased was responsible for their deaths. He complained
chief and the deceased was ordered to leave the area. However, she
failed to do so and a few days later when the accused
met her by
chance she taunted him for his weakness and boasted of her own
supernatural powers. As a result the accused became so
angry that he
lost all power of self-control and struck the deceased several times
with a stick, causing her death. In his defence,
the accused argued
that he was provoked into killing the deceased within the meaning of
the Criminal Law (Homicide Amendment) Proclamation
Held: In construing the definition of provocation set out in s.4 (a)
of the 1959 Proclamation, there was no justification for drawing
distinction between the loss of an accused person's power of
self-control on the one hand and his inability to form an intention
to kill on the other. The accused had acted under extreme provocation
which was sufficient to negative any legal intention to kill
deceased and was accordingly guilty of culpable homicide only."
present case the two accused did not meet the deceased by chance.
They deliberately went to the home of the deceased at night
they had on several occasions expressed their intention to kill her.
In Nathane's case-supra-the deceased had actually threatened
accused long before his wife and child were struck by lightning. She
was ordered to leave the area. The accused did not deliberately
attack her it was by chance that they met and she again provoked him.
It was a sudden provocation as a result of which the accused
power of self-control.
present case is entirely distinguishable from Nathane's case. The
present accused planned to attack the deceased at night when
alone in her
This was the second attack because on the previous day they assaulted
her but she escaped and outran them.
submitted that the present case is not different from that of Nathane
- supra. That the fact that in the Nathane's case
the accused met the
deceased per chance should not change the applicability of its
principles in the present case.
I do not
agree with the above submission because the two cases are altogether
distinguishable from each other. In the present case
publicly expressed their intention to kill the deceased on several
occasions before the chieftainesses. They deliberately
went to the
home of the deceased at night and carried out their intention to kill
her. The deceased had never openly told them
that she would hurt them
or their relatives through witchcraft. But in Nathalie's case the
deceased had told the accused openly
that she would hurt him and his
family by witchcraft. She actually boasted of her supernatural
powers. Even after the lightning
had killed his wife and child the
accused never vowed that he would kill the deceased. It was only per
chance that they met and
the deceased boasted of what he had done and
threatened to do the same to the accused.
submitted further that it is clear on the evidence before Court
(D.W.I) that the accused had taken a lot of intoxicating liquor
A1 suggested that they should go and talk to the deceased. He
submitted that it is not the only inference that they went there
fight. Such inference would not be permissible as it is inconsistent
with the defence evidence. I have said that the way they
murder of the deceased clearly shows that they were not drunk at all.
If they drank at all it was for dutch courage.
I do not rely on an
inference that the accused went there to fight. They fought on the
previous day but the deceased escaped and
outran them. However they
managed to inflict some injuries on her back. As she was being killed
she screamed and pleaded with A1
to pardon her. Such a miserable
woman could not have said the insults and a threat that the accused
would follow to death their
submitted that perhaps we may be led to say they should not have gone
there as the matter was receiving the attention
of the chief. But
that would be an armchair reasoning and quite unrealistic. He
submitted that the proper approach would be one
expressed by Holmes,
J.A. in S. v. Delyn and another 1968 (4) S.A. 495 at p. 507 in these
"What is needed in this cases is a down to earth reasoning with
a view to ascertaining what was going on in the minds of appellants.
This involves looking at all the facts on the ground as it were, and
allowing for human factors such as the robust truism that,
blood is up, reason is apt to recede; or the human frailty that, when
intoxicating liquor has been imbibed too freely
sensitivity is apt to
be blunted, so that a man may do things which sober he would not do."
present case I do not have to do any down-to-earth reasoning with a
view to ascertain what was going on in the minds of the
They confessed to the chieftainesses that their intention was to kill
the deceased. That is exactly what they did.
submitted that the approach of Holmes, J.A. above was expressed in
respect of the question of mens rea. He asked the Court to
mind, when intention is being investigated, when the offence was
actually committed as opposed to when the decision to
go to the
deceased's place was taken. He submitted that the Crown has failed to
prove intention to kill.
I do not
agree with the above submission. If a person expresses his
to commit an act which amounts to a criminal offence and a few hours
thereafter carries out the act, his intention is
very clear. The two
accused vowed that they would kill the deceased and subsequently
carried out their intention and killed her.
I have come to the
conclusion that they had actual intention to kill the deceased. It
was a clear case of dolus directus. The accused
directed their will
to compassing the death of the deceased. They meant to kill. The sole
characteristic of this form of dolus
is actual intention to kill (see
S. v. Bruyn 'N ander 1968 (4) S.A. 498 at p. 510 E-F).
I wish to
quote at some length the facts in S. v. Sigwahla 1967 (4) S.A. 566 at
p.570 where Holmes, J.A. said:
"In the present case the salient facts are that the appellant
was armed with a long knife which he held in his hand; that
advanced upon the approaching deceased; that as he came up to him he
jumped forward and raised his arm and stabbed him in the
of the chest; that the force of the blow was sufficient to cause
penetration for four inches and to injure his heart;
and that there
is nothing in the case to suggest subjective ignorance or stupidity
or unawareness on
the part of the appellant in regard to the danger of a knife thrust
in the upper part of the body. In my opinion the only reasonable
inference from those fact is that the appellant did subjectively
appreciate the possibility of such a stab being fatal. In other
I hold that there exists no reasonable possibility that it never
occurred to him that his action might have fatal consequences,
was advancing on the deceased with the knife in his hand and as he
was raising his arm to strike and as he was aiming a firm
the general direction of the upper part of his body. It is true that
he had consumed six bottles of "Kaffir beer";
but this did
not prevent him from knowing what he was doing in following after
Simon and robbing him of money and clothing and
in responding to the
deceased's turning back to see what was going on."
true that the facts of the above case are not quite the same with the
facts of the present case, but they have some very close
similarities. There is nothing in the present case to suggest
subjective ignorance or stupidity or unawareness on the part of the
accused in regard to the danger of a knife thrust on the chest
especially on the left side where almost every Mosotho adult knows
that the heard is located there. They usually put a hand on the left
breast to feel their heart
A1 took a knife out of his pocket and unclasped it. He then stabbed
the deceased five times on left breast penetrating
the heart. There
was one stab wound on the right breast. As the learned Justice of
Appeal said in Sigwahla's case-supra-the part
of the body injured is
relevant. During the stabbing the deceased was crying and pleading to
the A1 to pardon her. The accused
have not been honest with this
Court to explain how the deceased was held and restrained from
escaping during the stabbing.
submitted that there is evidence by the A1 that he had great
emotional stress following the death of his brother and the
about the deceased. This too should not be lost sight of as it may
constitute part of circumstances that negate intention
(See S. v.
Arnold 1985 (3) S.A. 256). The intention to kill the deceased was
clearly stated by the two accused on several occasions
actually went to the home of the deceased at night.
of A2 is based on the principle of common purpose.
"Association in a common illegal purpose constitutes the
participation - the actus reus. It is not necessary to show that
party did a specific act towards the attainment of the joint object.
Association in the common design makes the act of the
offender the act of all. Such association need not be express, it may
from conduct. Becoming a member of a band with a common intention to
kill coupled with presence at the scene of the killing would
liability. " (See South African Criminal Law and Procedure, Vol.
I by Burchell and Hunt, p. 364)."
participation of A2 in this case started when he told some Crown
witnesses that his intention was to help A1, his cousin, in
killing of the deceased. He accompanied A1 to the administrative
courts of the two chieftainesses of the area and supported
only by his presence but by express intention to kill or help in the
killing. He actually went to the home of the deceased
at night with
A1. He did not stop his cousin from going there at night, nor did he
stop him during the stabbing of the deceased.
If he had intervened by
holding A1, the latter would not have inflicted so many stab wounds.
In any event he has not even given
evidence before this Court to
explain his non-participation in the act He wants this Court to
accept the evidence of A1 which I
have rejected outright as nothing
but a pack of lies.
come to the conclusion that the Crown has proved its case beyond a
reasonable doubt in the sense that both accused had actual
to kill the deceased because they believed that she had killed A1's
brother with lightning.
both accused guilty of murder in Count 1 and guilty of arson in Count
trite law that belief in witchcraft is an extenuating circumstances
(See R. v. Fundakubi, 1948 (3) S.A. 810 (A.D) and S. v.
(1) S.A. 209 A.D.). There is overwhelming evidence that the deceased
was a witch and the accused genuinely believed
that she was
responsible for the lightning that struck the brother of A1.
that there are extenuating circumstances.
accused are first offenders
pleaded guilty of culpable homicide as a sign of remorse.
charge has been hanging over the heads of the accused for the last
six (6) years.
This is a
very serous crime which was planned over a couple of days and was
carried out in the most brutal way.
Nine (9) years' imprisonment each.
Crown: Miss Maqutu
Defence: Mr. Teele
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