HIGH COURT OF LESOTHO
by the Hon. Mr Justice M.L. Lehohla on the 14th day of September,
of a murder charge with which the accused stood charged, he tendered
a plea of guilty to Culpable Homicide. The charge
him was to the effect that on or about 10th August 1991 and at or
near Ha Mosuoe in the Quthing district the
accused had wrongfully and
unlawfully killed 'Masekabolane Sello with intent. The Crown accepted
the plea tendered, and the Court
endorsed the same.
short summary of the evidence led before Court, it would appear that
-I mean to say in terms of the evidence led by Jeremane Sello in the
Court below, who is the relative of the accused, he
said that while
in bed at his house around late evening - (the accused) came to his
house and knocked at the door, asked him to
come out and while
outside the accused then explained to him that the deceased had
set out for the accused's place where they found the deceased. The
deceased was lying in bed and was blood soaked on her
face and head.
witness took a towel and wrapped it around the deceased's head in an
attempt to stop the bleeding. This witness went further
that other people did come, obviously to try and help the deceased by
conveying her to hospital in a vehicle, where
she survived for a
number of days. But she eventually died while still in hospital.
when a night vigil held at the deceased's home was going on that the
accused said something which appeared astonishing to
those who were
around; in that he asked for pardon from both the Sello family and
the Falatsa family for having, as it was indicated,
be remembered that earlier when asked by PW1 what had happened he had
indicated that well, he found the deceased fallen
and he suggested
that may be she had hit herself against something that injured her.
as it may the important thing is he repeated his story on the burial
date that he had killed the deceased and was asking
for pardon from
the two families (i.e. his own and the deceased's maiden families).
He went further, in fact, to make a confession
before a magistrate.
The confession was not translated.
at this very moment give a warning that magistrates especially the
ones who prepare the record for onward transmission
to the High Court
should always ensure that the confessions are translated. It is good
that the confession is taken in the language
in which the accused
tendered it. It is also proper that such confession is translated. So
this task remains with the Court below.
What it implies is that the
subordinate court should not part with the record without having
ensured that the confession has been
translated. In his or her turn
the Registrar upon receiving the Preparatory Examination record from
the subordinate court should
check and see if everything is in order
including whether necessary translations have been made. On
discovering any omission in
this regard the Registrar should return
the record for
attention and correction by the subordinate court that delivered it
to the High Court.
confession was properly taken before the magistrate Mr. B.S.
Makaliana who gave the accused the preliminary and necessary warning
before taking the accused's confession down, and asked him through a
number of procedures to satisfy himself that the confession
prompted by any ulterior motive or undue pressure. But nonetheless
the accused did indicate, I would imagine, truthfully,
asked if he had made any confession previously he said, "yes"
he had made such. And asked if he was expecting
any benefit or some
such thing, he said "yes" he expected to be saved in regard
to the charge he was facing. I am quite
satisfied that there was
nothing untoward in this. Of importance being that his confession was
free and voluntary.
Now as I
stated earlier that the confession is in Sesotho, I will read it in
the language in which it was given.
"E ne e le Moqebelo khoeling eona ena le ha ke timelloa ke
letsatsi la khoeli, ke ne ke lutse le mosali oa ka 'Masekabolane
Sello, 'me o ne a tahiloe. Ke ile ka leka ho mo khalemela eaba eena o
oa nthohaka a sa khaotse, ka teneha, eaba ke mo otla ka feisi
mahlahareng oa lehlakore le letona, 'me a oa fatse. E Use ha a
phahama a thula lemati, a boela a oela fatse. A phahama ka mo otla
nape ka feisi phatleng. A bula lemati a oela kantle setupung, hlooho
e shebile tlaase. Ka mo otla ka feisi hape likhopong lehlakoreng
letsehali, a thula k'hona ea ntlo
ka phatla a ba a oa fatse eaba o tsoa leqeba hona phatleng. Eaba ke
mo raha ka lieta likhopong le mpeng, ka mo kuka ka mo isa katlung.
a ka a Ha. Ka tsamaea ka ea bitsa Ramathinyane Sello le Neo Sello, ka
ba hlalosetsa hore ke se ke entse kotsi. Ka roma Ramathinyane
batla koloi. Ha koloi e se e le teng re He ra montsa ho mo tlisa
sepetlele Quthing. 'Na le Neo re ne se re tlamisitse leqeba
Mofu o bolailoe ke 'na ka matsoho, empa e seng ka morero. O
hlokahetse sepetlele Quthing ka Moqebelo oa la 24 Phato 1991. Ha a
ntse a le Sepetlele ke ne ke ntse ke tla ho tla mohloela letsatsi le
leng le le leng.
"Ea tekeneloa ke Jeremane Sello polelo ena"
was on Saturday this month although I forget the date of the
month(date). 1 was sitting with my wife 'Masekabolane Sello,
was drunk. I tried to reprimand her but she insulted me continuously.
I got fed
up and hit her with a fist on the jaw region of the right side. She
fell to the ground and when she rose up she hit the
door and fell to
the ground again. She rose up I assaulted her again with a fist on
the forehead. She opened the door and fell
outside on the stoep head
facing downwards. I hit her with a fist again on the ribs on the left
hand side, and she hit the corner
of the house with her forehead, and
even fell to the ground. She sustained an injury on the forehead.
kicked her with booted feet on the ribs and stomach. I took her
inside the house. She did not cry.
I went to
call Ramathinyane Sello and Neo Sello, I explained to them that I
have caused injury. I sent Ramathinyane to look for
the vehicle. When
the vehicle had arrived, we took her out, to take her to Quthing
hospital. I and Neo had already bandaged the
wound with a cloth and
deceased has been murdered by me with my bare hands, but without
intention. She died at Quthing hospital on Saturday the 24-08-91,
visited her everyday while she was still in hospital.
evidence of the doctor shows that the injuries sustained were
consistent with use of both sharp and blunt instruments: a blow
a stone for instance or a sharp object of which he gives no example.
He further surmises that injuries could have resulted
traffic accident, or a fall from a height.
quite satisfied that booted feet fit in, especially, well with the
road accident analogy or a fall from a height, but however
I am not
satisfied that a sharp instrument has got a role to play in this
that the court has observed here is that the force used by the
accused in order to reprimand his wife was absolutely savage
excessive. It is true he says he was angry because the wife had
taunted him by insulting him, but nowhere does the accused
he sustained any injury caused through the instrumentality of such
should always be very careful what force they use to respond to
insult. The best one can do when insulted is just to say,
you too", and if the other party becomes even more aggressive in
the use of such abusive language you've got to
try and meet her
encounter by saying "and you too" "tu quoque" or
That way none of the combatants would sustain any physical injury at
all - none
leads to death direct.
satisfied however that the accused appeared contrite not only here
but even at the place where this sad episode occurred and
subsequent occasions when the events had just occurred. In each and
every one of these occasions he appeared very remorseful,
and that is
a matter to be taken by this Court in his credit.
has been told that he has four children who are all dependent on him.
The oldest being said to be twenty five while the
eighteen years old. That is also a factor to be taken into account
though one wonders why would a twenty-five year
old be still
dependent on the accused.
takes into account also a serious factor of the accused's
retrenchment from the mines.
imagine that the accused has not had any previous conviction because
none has been brought to the Courts attention. I would
accused has for his many many years in life led a very clean life.
take note of the fact that the accused lived in his state of
contrition, anxiety and uncertainty for eight years i.e. from
1991 when he awaited his fate before the courts of law after the
deceased's death to date.
accused has got to, however, be warned that to lead more or less
perfect life in this world he must abstain from taking drink.
know whether he continues drinking and if he does so I wonder what he
would hope to achieve by that. He looks to me to
be still in a fit
condition to remarry. I don't know whether there would be any woman
interested in him if he still drinks because
it appears when he is
drunk he turns a woman into a live football by kicking her to death.
will be failing in its duty if having taken all the various factors
into account it would just let him go virtually scot-free
suggested by Mr Lebusa that suspended sentence would meet the justice
of this case.
circumstances the Court imposes a sentence of five(5) years'
imprisonment of which three(3) are suspended for three years
condition that the
is not convicted of a crime of which use of violence is an element
the period of the suspension.
sentence itself is postponed for two(2) years, that is to say until
the year 2001 to enable the accused if he is interested
serving the prison term, to pay (M2000-00) Two Thousand Maluti
payable from today until fully paid on or before 14th
I realise as I have been told that you don't earn any income but I
can't just let you go scot-free.
: Miss Maqutu
Defence: Mr Lebusa
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