CRI/T/14/80 IN THE HIGH COURT OF LESOTHOIn the matter of: REXv1. SETOI KAO2. SELEBALO 'MANEJUDGMENTDelivered 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,
-2-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,
-3-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
-4-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
-5-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
-6-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 accordinglyThere 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, 1981For Crown : Mr. Muguluma For Defence: Mr. Kolisang
EXISTENCE OR OTHERWISE OF EXTENUATING CIRCUMSTANCESWe 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 and2. 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, and3. The case is one of dolus eventualis rather thandolus 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 bodilyharm 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, thesuspended sentence will come into effect.Accused 2: Count 1 : 5 years imprisonment.CHIEF JUSTICE 9th March, 1981