IN THE HIGH COURT OF LESOTHO
In the matter of :
THABISO DAVID NTHAMA
Delivered by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 27th day of August 1980
The accused before me, Thabiso David Nthama, is indicted on a charge of murdering Tselane Matasane, (the deceased) at Mankoaneng in the district of Leribe. According to the indictment the accused is alleged to have inflicted injuries on the deceased on or about the 2nd of April 1979 and as a result of those injuries she died (after being admitted as a patient) at Leribe hospital on the 29th April 1979.
The accused denies the charge.
It is common cause that the accused and the deceased had been lovers for some time; the accused says it had been going on for three years. This love affair was well known to two Crown witnesses, Mathabiso Makeka(PW3) and her daughter Lerato Makeka (PW4) who occupied a room adjoining that of the deceased. The deceased and the two witnesses shared a common household. The Makekas' room was used by all three of them as a day or sitting room but at night the deceased would go and sleep in her own bed room. Each room had its separate entrance.
Unbeknown to her two above-mentioned closest friends the deceased had acquired a new secret lover one Seeiso Theko. Seeiso Theko did not give evidence at the trial. He did however give evidence at the Preparatory Examination. It was proved to the satisfaction of the Court (1) that the witness could not be found after a diligent search has been made and (2) that the accused was given an opportunity to cross-examine him which he in fact did although briefly. The line of cross-examination
did not indicate that Seeiso was fabricating. Theko's
deposition at the Preparatory Examination was admitted under the terms of s. 222(3) of the Criminal Procedure and Evidence Proclamation, and his evidence read at the trial. It goes without saying that the weight to be attached to a deposition read at the trial, in contradistinction to its admissibility, must be treated with caution since the Court has not heard or seen the witness especially under cross-examination and is therefore at a disadvantage over his credibility as a witness of truth. I will deal with Seeiso's deposition later but according to Mathabiso Makeka and her daughter Lerato, the accused, Seeiso and the deceased, were at their home until late afternoon of probably the 1st April 1979. There was nothing untowards and she and her daughter retired to bed, as did the deceased, (in her own room) but at about midnight, both were awakened by Seeiso who gave them certain information. Almost at the same time the deceased appeared at their doorway, soaked in blood, and fell down on the stoep. According to Mathabiso she said on falling that she had been stabbed but did not say by whom. According to her daughter Lerato the deceased said "Thabiso(accused) has finished me" or words to that effect. There is therefore a discrepancy between mother and daughter, but it is clearly possible that the deceased may have said something to one woman and something else to the other. The two women may not have been there simultaneously, or one heard well and the other did not. This statement, for what is it worth, forms part of what some jurists and Judges refer to as the res gestae and is admissible in evidence, I personally find it a useful term. It is not the time nor the place to go into an academic discussions about the niceties that resulted from the use of phrase (for which see Wigmore Vol. VI 3rd Ed. 1940 para 1745-1792 and for a more recent exposition Phipson 12th Ed. para 168 et seq) and all that need be said is that though the statement was not precisely contemporaneous with the act of which the deceased complained, it is clear that it was given in what must have been a few minutes after its occurrence when the speaker has been under the influence of the event and had not yet had the time to reflect (R. v. Tuge 1966(4) S.A. 565 AD at 573) much less to concoct. (See also Hoffmann South African Law of Evidence 2nd Ed. p.99 et seq.)
Thabiso the accused admits in a statement he made to a magistrate and in his testimony in Court that he was in the room of the deceased before she was seen soaked in blood standing at
the doorstep of the Makekas' with Seeiso. If I believe what the deceased had said to Lerato (and I do so believe) it is difficult to imagine that either of them could have confused the name of Thabiso(A) with that of Seeiso. Mathabiso says that the deceased had a blanket over her and wore a peticoat. She removed these and saw 8 wounds on her body oozing with blood before she went to call the police. Lerato says she did not see the wounds until the deceased was taken to hospital when she accompanied her there. I do not think this discrepancy between mother and daughter as particularly material and it is my view that their veracity has not been impaired. Both testify incidentally that they did not see the accused though we know from his own admission that he was there a few, moments before.
Mathabiso and her daughter testify that in the deceased's room and on the stoep they found a hat and a knife, the latter with blood stains. Both had seen accused wearing the hat (Exhibit C) and using the knife (Exhibit B) to cut meat. I believe the evidence. The knife is an ordinary "Makopi" knife, with a 3½" blade, normally carried by Basotho for ordinary uses.
Seeiso's deposition at the Preparatory Examination need not be recounted in full and for the purpose of this Judgment a gist of it will suffice. He testified that the deceased had become his lover in January, i.e. some three months earlier than the incident that gave rise to these proceedings, and that on the night in question they were in bed together when the accused arrived and knocked at the door seeking admittance. The deceased got up and lit a lamp and apparently tried to thwart the accused from entering. He kicked open the door, which was secured by a latch, breaking it in the process, and he then entered. The accused allegedly told the deceased that he had previously warned her about cohorting with other men. He then stabbed her twice, once on the shoulder, and once on the collar bone. When Seeiso tried to intervene the accused is alleged to have told him that the woman was his "wife". We know for a fact however that she was not his wife either by civil law or by customary law. At this Juncture Seeiso left the room to raise an alarm and knocked at the window of Mathabiso and her daughter Lerato and woke them up. Whilst doing so the deceased emerged at the doorway soaked in blood.
Seeiso had testified that whilst he did not see a knife with the accused when he first stabbed the deceased he did see part of it on the second occasion, Seeiso said that he knew the accused fairly well and had seen him with the deceased and adds that the accused came to the deceased's house often when they were together. This may indicate that the accused probably suspected that the deceased had acquired another lover, but I will assume, in the accused's favour, that he did not, and had discovered, for the first time when he came to her room that night, that she had another man in her life.
The accused could not be found for about 5 months even though a search was mounted to find him. He was finally apprehended on the 9th September. He made a statement to the police and was taken to a magistrate. A statement from him was recorded by the magistrate on the 12th.
Mr.Kolisang, who initially defended the accused, said that he proposed to challenge the admissibility of that statement on the grounds that it was involuntarily made. It became clear, however, that that statement was not in fact a "confession" to the crime of murder, or indeed a "confession" to any other crime. I have said elsewhere (R. v. Faku & Others CRI/T/47/78 dated 7th May 1979 - unreported) and my brother Mofokeng appears to agree (R. v. Malupe & Others CRI/T/19/79 dated 6th May 1980 - unreported) that even where a statement does amount to a confession there is strictly speaking no necessity in Lesotho to hold a "trial within a trial", since the role of the assessors is merely advisory. We do however conform to the ritual and my assessors withdrew. Mr.Modisane, who took over the defence of the accused from Kolisang, suggested however that I recall the assessors to hear that statement read, even though it would be inconsistent with what the accused's defence would be.
The accused, who called no witnesses, testified, as I previously stated, that he did go to the deceased's room that night but denied he broke open the door; it was the deceased who opened it for him. When inside he saw a man on the bed (in the form of a mattress which was on the floor), and asked her who he was. She told him not to ask her any question. At that moment the man got up and struck him with a stick on the head and a struggle ensued. The accused says he managed to free himself and got out but fell on the stoep losing his hat.
He does not know what happened in that room after he left. The knife was not his. He spent the night at the NRC premises but on the following morning went to Leribe hospital where his head injury was attended and then left Leribe for Mapoteng his home. He was then arrested on another offence and received 6 months' imprisonment and when released he was arrested on this charge. In his statement to the magistrate he is recorded as having stated that when he went to the deceased's home that night, he found her with a man, and asked her who he was but she refused to disclose his name. He said that he got annoyed and held her by the blanket, but the man then stood up and attacked him violently hitting him with a stick on the head. He told the magistrate that he produced a knife to defend himself and since it was dark he stabbed the deceased but could not remember how many times. He managed to get out and run away. He heard that the deceased was injured and taken to hospital. He saw her there but was afraid to go and report to the police. He went to work and learnt later that she died.
The accused testifies that he was threatened by the police who held at him a pistol. He told the magistrate what the police "ordered" him to say.
I have heard the magistrate who took down the statement and the police officer who ordered that he be ushered to the magistrate. I do not have the slightest doubt that it was voluntarily made. In it he pleads self-defence. It is not necessarily a true statement of the events of course. He resiled from his former position at the trial saying that he left both Seeiso and the deceased alive in that room and implied that it may be Seeiso stabbed her.
The deceased was admitted to Leribe hospital in the early morning of the 2nd April. The nurse who initially attended to her was staff nursing sister Sejane(PW2) who testified that she saw 8 wounds on the back chest and arms. She was bleeding profusely. The sister admitted her as an in-patient, cleaned her wounds, and phoned the doctor. The doctor was apparently still in his house but he came and attended to the deceased. The sister adds that the doctor stitched the wounds and put her on antibiotics. According to the sister the condition of the deceased alternated between improvement and deterioration. The sister proceeded on leave after about a
week and someone else (it seems) took over. We do not know who that person was. The medical records of the deceased have been lost or mislaid. The deceased died on the 29th April. Dr. Park performed the post-mortem on 4th May 1979 and gave the cause of death as being due to "Empyema following haemothorax of the left side". She explained that (1) pus has formed after the bleeding into the left pleural cavity due to the stabs on the chest and back and (2) infection occurred and (3) septicaemia which might have caused respiratory disturbances leading to death. She further explained that a haemothorax, i.e. haemorrhage into the pleural cavity, especially the left cavity where the heart is situate, can cause death. I have no reason to disbelieve her evidence. It was not put to her that the stitches made by the doctor were or could have been the cause of the deceased's death but it is clear that her answer would have been in the negative.
A number of submissions were made on behalf of the accused. Firstly that his evidence on oath could be "reasonably possibly true". It was pointed out that Seeiso's evidence at the Preparatory Examination has not been thoroughly tested, that there are discrepancies on the number of wounds the deceased received and that in the final analysis "the only evidence against the accused was his statement to the magistrate". This is not so of course. Accused was, on his own admission, with the deceased a few minutes before she was seen dripping in blood, she named him to one witness as her assailant, and a knife identified by two witnesses as his, was found on the premises. The evidence of Seeiso about the number of stab wounds is not at variance with other evidence. He said that he left the accused and the deceased in the room after the second stabbing, and since we know she had eight, then someone must have continued stabbing her when Seeiso left to raise the alarm. Seeiso had no motive whatsoever to kill the deceased and if he did he need not have gone to the Makekas to report. The accused as we have seen had a motive to kill: annoyance and jealousy on seeing his lover sleeping with another man. I found the evidence of Seeiso convincing even though I did not see or hear him. It is consistent with the independent evidence of the Makekas and with what The police found on inspecting the scene, viz, the broken door and a trail of blood from the deceased's room to the doorway of the Makekas. If it is true
that the accused was attacked and injured by Seeiso one would have expected him to report to the police for he would have been the aggrieved party and had every reason to complain. Instead he disappeared. This is not conduct consistent with innocence but of guilt. The demeanour of the accused in the box was not that of man without a guilty conscience. When he realised that his first defence of self-defence was not likely to be found plausible he changed it to suit his convenience into one of denial, a defence which is even less plausible than the first one he advanced.
It was submitted secondly that the Crown failed to prove the absence of a novus actus interveniens. I was referred to a Judgment by Rooney J (R. v. Khantsi and Motake CRI/T/53/78 dated 30th April 1979 - unreported) where the learned Judge appears to have formulated the proposition (at p.3 para 2) that if there is "a lacuna in the Crown case brought about by the absence of evidence as to what befell the deceased between the time that he was taken to hospital and his eventual death" that that might constitute a novus actus which the Crown must disprove beyond reasonable doubt. Earlier the learned Judge said "In this case the Crown failed to bring evidence as to the condition of the deceased upon his arrival at the hospital, his subsequent treatment and progress and the nature and extent of the operation performed upon him"- (p.2 para 2).Save for dicta no authority was cited in support of the proposition and I think some qualifications are necessary. With respect the matter was not that simple: The deceased was found on the 28th May 1978 lying unconscious and bleeding profusely from one (or possibly two) wounds above the eye. Although it was not known at the time one of the wounds penetrated to the skull. The deceased died a few days later. There was no evidence from the doctor who treated and operated on him on arrival at the hospital. There was, however, other medical evidence from the doctor who performed the post-mortem examination that apart from the wounds on the eye on which an operation was carried,there was fracture of the skull in the same area, that the fracture led to the spread of infection from a lesion into the sinus and eventually into the brain and the proximate cause of death was septic meningitis. The doctor discounted the possibility that infection of the sinus might have risen otherwise than as a result of the external injuries (i.e. to the eye) and that it was the skull fracture which enabled the infection to penetrate the cerebral area. The
learned Judge nowhere says that he had rejected this opinion. This evidence prima facie negatived negligence on the part of the doctor who treated him. There was no evidence, at any rate in the Judgment, that there was a novus actus or a possibility or a probability of a novus actus outside the injuries received. What was apparently before the learned Judge was an argument or a submission by counsel, and that, in my view, cannot constitute a novus actus. The Crown, through the evidence of the doctor who did the post-mortem examination adduced prima facie evidence of causation (Hunt, supra, p.342(C) and thus the "evidential burden" has shifted to the accused. Indeed neither the obiter dicta of Young J in R. v. Mabole (1968(4) S.A. 811 at 815) on which the learned Judge relied nor the facts of the case itself would indicate that a submission or an argument, or, provided there is acceptable medical evidence on the kind of injuries received and on the cause of death, that lack of evidence about treatment suffices to break the chain. It is only when the question of novus actus is "properly introduced" (be it by the Crown, the accused or the general tenor of the evidence) that the onus would have to be discharged by the Crown. In Mabole, supra, the learned Judge said:
"In this case the reasonably predictable consequences
of the accused's attack on the deceased were that he
would require medical attention, and in the state of
the present knowledge mistakes in diagnosis and
treatment are common place. Provided medical attention
is given with good will and reasonable efficiency
the accused cannot complain of mistakes in diagnosis
and treatment" (p.816E).
"I am far from saying that mere excusable negligence (culpa levis) would suffice to constitute a novus actus interveniens. As far as culpa lata and dolus are concerned, these may well break the chain of responsibility".
The headnote reads:
"On a charge of murder the evidence disclosed that the accused had inflicted a number of stab wounds on the deceased and when he was admitted to hospital he was in a state of collapse as the result of loss of blood and shock following the stab wounds. None of the wounds was dangerously penetrating. The condition of the deceased underwent a change as the result of blood pressure and a raised pulse rate. A doctor considered it not only expedient but advisable to carry out exploratory surgery on the deceased. Nothing significant was discovered. The deceased, however, developed a pulmonary
"embolism as the result whereof he died. The medical evidence was that this was caused by the surgery and not by the wounds inflicted by the accused.
HELD, that the causal relationship between the original injuries and the death of the deceased had not been broken".
The problems of causation are discussed at length in Hunts Vol. II South African Criminal Law and Procedure between pages 325 and 342. The proposition put in R. v. Smith 1959(2) All E.R. 193 accords with justice, equity, good public policy, and common sense. It was there said :
"if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so over-whelming as to make the original wound merely part of history can it be said that death does not flow from the wound".
Every case must in any event depend on its own facts. If a patient is admitted into hospital with a scratch on his forehead but a doctor operates and the patient dies and the post-mortem confirms that the scratch could not have been the cause of death, the Court would want to know more about the operation and treatment and if it is not forthcoming an accused cannot be convicted of homicide. But I think that not one but a number of factors should be considered before a nova causa as a reasonable possibility can be said to emerge. For a wound which is dangerous to life, the authorities are almost unanimous that there is no break in the chain, whatever treatment the patient received, and further that even in case of non-dangerous wounds a bona fide but ill-advised medical operation is not novus actus (Hunt, supra, p.338). The case of R. v. Jordan 1956 Vol. 40, Criminal Appeals Reports p.152 which appears to have decided otherwise is contrary to the later decision in R. v. Smith, supra. The verdict in the case of R. v. Motomane 1961(4) S.A. 568 has been described by Hunt(p 340) as "incomprehensible on any test". Hunt summarises the legal position, with which I respectfully agree, thus: (p.341) :
"Bearing in mind that in modern times medical
"proficiency is normal and that negligent, improper procedures are abnormal, it is submitted that the rule should be: medical treatment which is carried out bona fide is a novus actus only if (i) it is negligent (according to Hart & Honore grossly negligent) and (ii) but for that medical negligence (and supposing proper, careful treatment) Y would not have died when he did. And this is so even if the original wound, in combination with (or aggravated by) the negligent treatment, was the physiological cause of death. This rule is in accordance with R. v. Mouton, with the test enunciated in R. v. Loubser, with R. v. Mabole and R. v. Foromani, with the Stephen's Digest-Jordan line of English authority, with the American approach, and (subject here and there to minor differences) with the view taken by most academic writers.".
Now back to the facts before me which are somewhat distinguishable from the facts before Rooney J since I do have some evidence of the treatment the deceased received although not from the mouth of the doctor who treated her. As I have stated the deceased received eight stab wounds on her front and back chest, arms and shoulders. She was bleeding profusely, but a district hospital was close to her home and she was taken there by ambulance. The staff nurse admitted her cleaned her wounds and called the doctor who came and stitched and dressed them and also prescribed anti-biotics which she administered until she proceeded on leave. The deceased's condition was up and down. The deceased died from septicaemia a couple of weeks later but this according to the evidence of Dr. Park developed as a result of haemorrhage in her pleural cavity which came about from the stabs in that region which I find as a fact have been inflicted by the accused. No substratum of evidence has been introduced to show negligence by the doctor, much less gross negligence, and much less, that death was due to some other cause unconnected with these stab wounds. It could of course be argued that if the deceased was fortunate enough to have found herself in a large general hospital, with specialist surgeons, anaesthetists, life supporting machines, the most modern of drugs etc. that her life could have been saved but the fact that a rural or a country hospital lacks all the modern scientific equipment and the human resources to save life, (as sophisticated hospitals can often do), is not evidence that a novus actus may have intervened to
shift the onus of negativing it to the Crown if causation was
prima facie proved by other medical evidence. The Courts must take our
people (R. v. Loubser 1953(2) P.H. H. 190) and our hospitals as
they are. The main enquiry of a murder trial is to find out if the accused factually and legally caused death. It should not, in my view, degenerate into a medical enquiry about treatment or lack of it unless there is some evidence that treatment if given was so grossly negligent and that but for it death would not have occurred. Stitching a wound is not the kind of operation, we know this from our daily lives, that normally causes death. I find it too fanciful to assume that if evidence of treatment is lacking, that sufficient probability of a novus emerged, when other medical evidence discounted such a possibility, and when the nature of the wound (or wounds) as disclosed on a post-mortem, clearly indicates that it was dangerous and may lead to death.
It was finally submitted on the accused's behalf that if I believe that it was he who inflicted the injuries on the deceased, that the Crown has not proved that he had formed the subjective intent to kill. In his statement to the magistrate the accused mentioned that he was "annoyed" with the deceased behaviour. I have assumed that the accused came upon the infidelity of his lover suddenly when she refused to open the door and had not planned an attack on her. Subjective intent however should not be confused with premeditation and may arise on the spur of the moment. Her conduct may have caused him to lose some of his self-control. She was not, however, a person to whom he stands in "conjugal, parental, filial, or fraternal relation or in the relation of master and servant" to bring him within the ambit of the Criminal Law (Homicide Amendment) Proclamation No.42 of 1959 - Vol. I Laws of Lesotho p. 995). The use of a knife eight times on the chest (back and front) and the upper vulnerable parts of the body indicates an intent to kill. It has been said in R. v. Krull 1959(3) S.A. 392(AD) at 399:
"Under our system it does not follow from the fact that the law treats intentional killing in self-defence, where there has been moderate excess, as culpable homicide, that it should also treat as culpable homicide a killing which though provoked was yet intentional. Since a merely provoked killing is never justified there seems to be no good reason for holding it to be less than murder when it is intended.".
In my opinion the accused is guilty of murder and I so find.
My assessors agree.
27th August, 1980
For Crown: Mr. Muguluma
For Defence: Adv. Modisane
In this case we have assumed that the accused came upon the infidelity of his lover suddenly. There was therefore no premeditation in this killing and there was some element of provocation, which, though not sufficient to reduce the charge to one of culpable homicide, is sufficient reason not to impose the death penalty.
SENTENCE : 7 years' imprisonment.
CHIEF JUSTICE 27th August, 1980
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