CRI/T/14/80
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
v
1.      SETOI KAO
2.      SELEBALO 'MANE
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 6th day of March, 1981

The two accused before me Setoi Kao and Selebalo 'Mane
are jointly indicted on two charges namely,
(1)     murdering Tente Tente,
(2)     assaulting Maphoto Kao(P.W.1) with intent
to do her grievous bodily harm.
Both accused offered to plead guilty to culpable homicide
but this the Crown (quite justifiably on the evidence that
emerges from the Preparatory Examination record) refused to
accept. Both pleaded not guilty to the second count.
Setoi (Al) is the younger brother of Maphoto Kao's husband
and Selebalo (A2) is her first cousin from both the mother's and
father's side. They all lived in the village of Mphosong in the
district of Leribe. Maphoto's husband works on the mines and had
gone to the Republic some four months prior to the incident
giving rise to these proceedings. Maphoto had in the meantime
acquired a lover called Tente. She admits having had sexual
intercourse with him but only in open country. This had been
going on for a week. Tente is now dead and Al and A2 are charged
with his murder on about the 4th March 1980. As I said they both
admit causing his death and the only question that is to be
decided (on this count) is whether or not they had the subjective
intent to kill.
We have two versions of the events, one by Maphoto Kao
and her son Photo (PW3), and another one by the two accused.
Maphoto testifies that at dusk on the 4th March 1980
Tente(the deceased) came and entered her house, relaxed on a
/seat,

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seat, took out his pipe, and started smoking. He carried a
stick which he placed next to him. There was a light (candle)
on and her son Photo, then aged nine, and another younger child,
were still awake. Al came first and knocked at the door. She
says that she tried to stall him by telling him that she was
already in bed but he made his way in nevertheless and asked the
deceased what he was doing there. When deceased did not reply
Al said that he was on vigil (I understand this to mean looking
after Maphoto in her husband's absence - quite normal in rural
Basotho society) and that he (Al) had heard that he (the deceased)
was in love with his elder sister (meaning Maphoto). Without
further ado Al hit the deceased with a stick (not the deceased's
but another one not produced to the Court) on the head which
fell him down. A2 then entered, also carrying a stick (Exhibit 2
and both belaboured the deceased Maphoto says she remonstrated
with Al and A2 that they were killing a human being but her
entreaties that they stop were of no avail. When the deceased lay
helpless, Al turned on her and sjamboked her with a whip
(Exhibit 3) which he also carried. Then he took a saw (Exhibit 1)
belonging to her husband which was hanging on the wall and struck
her with it. She tried to ward off the blow but it caught her
finger and nearly severed it. When she fell Al kicked her in
the stomach. A2 restrained him and did not assault her. Al then
returned to the deceased and continued to assault him. Al then
took off deceased's clothes (including his trousers) and threw
his gum boots to her son Photo and asked A2 to produce a knife
to castrate the deceased. A2 did not produce a knife nor did
he accept Al's second suggestion that they should take out the
deceased's eye. However the deceased was badly hurt and now
completely naked. They found a rope and tied him with it across
the waiste and marched him out. The deceased however was still
able to walk on his own. Al and A2 locked the door from the
outside so she could not summon help. Five exhibits were
produced ; 2 sjamboks, one saw, one stick and a rope. The
sjamboks she identified as belonging each of Al and A2, the stick
as being carried by Al, and the saw and rope as her husband's.
The boy Photo (PW3) was not sworn due to his tender ago
but he gave a statement after being admonished to speak the
truth. He supported his mother bar a few variations which I
will attempt to analyse later in this judgment.
Al testifies that he was, with A2, kraaling cattle (it
was a joint family kraal close to Maphoto's house) in the evening
of the same day and whilst A2 had gone to relieve nature, he,
/as usual,

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as usual, went to Maphoto's (his sister-in-law's) house to see if
she was alright telling A2 that he will find him there. On
entering (he said he need not knock or seek permission since his
brother's house is open to him as his own) he found the children
asleep and the deceased in bed with Maphoto. A light was on.
When he entered the deceased jumped out, naked, and attacked him
with a stick (the one produced in Court (Exhibit 2) which he
warded off with his sjambok. The stick fell down from the
deceased's hand. He grabbed it and struck the deceased on the
head with it. Maphoto tried to restrain him by holding him from
the back, but he pushed her, first with his elbow and he then
struck at her with the sjambok. It was at this point that A2
entered and asked what was happening to which Al replied that
he saw the deceased naked in Maphoto's bed. At this point
deceased got up and tried to rush out of the door, pushing A2
aside, but A2 got hold of him and both of them again thrashed
the deceased. Al denies he hit Maphoto with the saw. He says
during the struggle the saw fell to the floor and both tried
to get hold of it one from each end and her finger was injured
by it when she pulled it towards her.
A2's version, with a few insignificant variations,
supports Al's. Both testify that they intended to chastise the
deceased and take him to the chief and had no intention of
killing him.
The doctor who performed the post-mortem examination
(Exhibit A) testified that the deceased had 2 lacerations on the
head and 45 whip lash injuries all over the body especially the
back and chest. The cause of death was intracraneal bleeding
(albeit small) and multiple subcutaneous bleeding all over the
body. There was no skull fracture.
The crux of Mr. Kolisang's argument is that the version of
the accused persons is more reasonable than that of Maphoto and
her son. It was submitted that she, having been found in a
compromising situation, had every motive to put to the world a
more favourable picture of herself. Photo is a child, easily
impressionable, and he is amenable to suggestion. He was coached
to tell a story and not to depart from it and what he says
cannot be relied upon in support of Maphoto's version. Further-
more, Mr. Kolisang argues, the two accused did not intend killing,
only chastising, and both were surprised when the deceased
dropped dead near the chief's place. It was further submitted that
/both

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both the accused, more especially Al, stand to Maphoto in
fraternal relationship in the absence of her husband, and that
when they did the act which caused death they were in the heat
of passion brought about by sudden provocation on seeing a sister-in-law and a first cousin respectively in a sexually intolerable
situation and the act must fall within the ambit of the Criminal
Law (Homicide Amendment) Proclamation 42/1959 (Vol. II Laws of
Lesotho p. 995).

my assessors on this aspect of the case. It is extremely unlikely
that the deceased would strip himself naked in a hut whose door
cannot be properly secured from the inside, in the early part of
the evening, whilst the children may be still awake and when a
candle is burning, and when Al at least is expected to call.
Although the accused persons deny it, I think that they either
saw the deceased go to Maphoto's house (the kraal is not so far
away) or had already suspected something and they went to "catch"
them, or having suspected nothing previously, had suddenly come
across this stranger to the family and decided, (rightly as turned
out but only from Maphoto herself and she need not have admitted
it) that they were lovers and intended to punish him severely
for his sexual approaches to a woman whose husband was away and
for whom they owe some responsibility.   '
The variations that emerge between the mother (Maphoto)
and son Photo are as follows :
1.      Maphoto says she told Al when he knocked to go
away as she was asleep in bed but he entered
against her permission. Photo says she told him
to come in and Al did.
2.      Maphoto says deceased had a stick but this was
not produced to the Court. Photo says he saw
no stick with the deceased.
3.      Maphoto says Al and A2 each carried a stick and
a whip, Photo says Al carried a whip and A2
carried the exhibited stick.
4.      Maphoto says Al and A2 tied deceased by the waiste
and pulled him out. Photo says that they tied him
from his testicles and drove him out.
/In

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In spite of these variations we found the evidence of
Photo compelling, perhaps more than his mother's. The boy
was closely observed from the witness box. If he had really
been coached one would expect that with every other sentence
he uttered he would be looking at his mother who was sitting
in the well of the Court for assurance that he said the right
thing. He did not. I am convinced beyond any shadow of doubt
(and so are my assessors) that the deceased was not naked when
Al and A2 entered though I do appreciate that in the
circumstances they were justified in thinking that deceased's
visit was for no other purpose than that of sex. Under s.3(2)
of the Proclamation, invokded by Mr. Kolisang, the Court must be
satisfied that the act which causes death bears a reasonable
relationship to the provocation. There is no doubt that beatings
and lashings were severe so much so that Maphoto exclaimed that
they were killing a human being in her house. When they later
returned to collect deceased's clothes (or their own blankets
it does not matter which) they told Maphoto they had killed him.
I am fortified in my view that the two accused intended
subjectively to kill the deceased by the evidence of Pitsi (PW4)
the chief's bugle. When the accused left Maphoto's house they
marched the deceased in the direction of his house. When they
came closer he heard cries and went out to investigate and saw
them driving (with a stick) a naked man tied (by the hands he
says) and Al poking him to make him go faster. He thought
at first they had caught a thief and were bringing him to his
house for detention. He ventured to ask them what the deceased
had done. At that moment they had not passed his house, but he
noticed that they were going away from it. It was at the
corner of the garden that the deceased fell and died. Al and A2
did tell the chief, in due course, that they had found the
deceased at Maphoto's house, and he did gather there was some
sexual element in the reasons behind their attack but he did
ask them further, seeing that they passed his house, to where
they were taking the deceased and they replied "felehetsa" in
sesotho meaning "half-way". My assessors assure me that (as in
English) the word has a double meaning depending on the context
and circumstances and here the accused could not have meant
they were taking the deceased half-way to his house, but half-
way to heaven, i.e. that they intended to beat him almost to
death. Their protestations in Court that they were simply
chastising the deceased is belied by their words and their
conduct and it seems clear to me that both accused realised
/that

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that their act might cause death, an eventuality which they
subjectively foresaw but which they did not care whether it did
occur or not.
In my view, therefore, the accused are guilty of murder.
Believing, as I do, that the deceased was not naked when Al and
A2 entered the house, the provocation of seeing a strange man
in Maphoto's house in the evening was not so great as to bring
about such a violent and persistent attack. There might be
extenuating circumstances but that is a different matter.
I find them guilty of murder accordingly
There is no evidence that A2 assaulted Maphoto and he is
acquitted on this charge.
I am not entirely sure that Al intended to do grievous
harm to Maphoto; his wrath was directed against her lover and
to her only marginably when she tried to intervene which I
believe she did. Al is found guilty of assault.
My assessors agree.
CHIEF JUSTICE
6th March, 1981
For Crown : Mr. Muguluma
For Defence: Mr. Kolisang

EXISTENCE OR OTHERWISE OF EXTENUATING CIRCUMSTANCES
We are enjoined by the third proviso to s.291 of the
Criminal Procedure and Evidence Proclamation to consider whether
extenuating circumstances exist that justifies the Court in
passing a sentence other than death.
Three major factors operate in the accused's favour :
1. Absence of premeditation and
2.      The presence of an element of provocation though
insufficient to reduce their crime from murder
to culpable homicide yet sufficient enough to
render them morally less blameworthy, and
3.      The case is one of dolus eventualis rather than
dolus directus.
My assessors and I agree that this is not a case where
a sentence of death ought to nevertheless be passed.
SENTENCE:
Accused 1: Count 1 : 9 years imprisonment.
Count 2 : 3 months imprisonment.
Sentences to run concurrently.
Note; The accused had one previous conviction
for assault with intent to do grievous bodily
harm in November 1979 wherein he was sentenced
to pay a fine of M120 or 12 months imprisonment
in default, half suspended for one year.
Since this crime took place in March 1980,
during the period of suspension, the
suspended sentence will come into effect.
Accused 2: Count 1 : 5 years imprisonment.
CHIEF JUSTICE
9th March, 1981