CRI/T/15/80 IN THE HIGH COURT OF LESOTHOIn the matter of .REXv MOEKETSI MOTHEBEJUDGMENTDelivered by the Hon. Mr Justice F.X. Rooneyon the 9th day of March, 1981Mr. Muguluma for the CrownMr. A.T.R. Remolefe for the accusedThe charge against the accused is one of murder in that upon or about the )30th March, 1980 he did unlawfully and intentionally kill Seabata Mothebe.It is not in dispute that the accused caused the death of the deceased by striking him twice on the head with an iron rod (Exhibit B) which is normally used as a tethering bin for horses. Death was due to brain damage. The deceased's skull was cracked by the blows.I shall first set out the background to this case which has been well established by the evidence of witnesses both for the Crown and for the defence. The accused's grandfather, Moeketsi was married to 'Mamatita (P.W 4). They had seven sons of whom the eldest, Matita, died a few years ago. The heir to Matita was Kahlolo, the elder brother of the accused. Although Kahlolo is married, he is said to be a man of weak intellect, not responsible enough to manage his inheritance without assistance.The family home is at Makobong village where there are two houses. 'Mamatita occupies one and Kahlolo and his wife Claudia another. Since the death of her eldest son, 'Mamatita who is now a woman of advanced years, became dependent for her maintenance and support on her two grandsons, in accordance with custom. For some time past, 'Mamatita has been dissatisfied with this situation. It is probable that her dissatisfaction arises from a fear that her grand children will not make sufficient provision for her.2/ She favoured a different
-2-She favoured a different arrangement which would place the obligation to support her upon her surviving sons in particular the deceased and one Mojela.I have no doubt that this conflict ensued for a time before the events of the 30th March, 1980. At a family meeting convened at the end of 1979, it was decided that the accused should act as a kind of guardian for his brother Kahlolo. This decision did not please 'Mamatita who would have preferred the deceased to have assumed that office. Although Kahlolo was the heir, she resolved to force him and his wife to leave the family homestead in defiance of his rights and those of the accused as his brother's guardian.On the morning of the 30th March, 1980 'Mamatita took the drastic step of ordering her sons, the deceased and Mojela to unroof the house occupied by Kahlolo and his wife. The deceased climbed on the roof and proceeded to destroy the thatch thus precipitating a series of events which were to have tragic consequences for himself.Most of the witnesses who gave evidence at the trial coloured their testimony in accordance with whichever faction of the Mothebe family they were attached. As a result, there are considerable conflicts of evidence. Fortunately, because of the view that 1 take of this case as a whole, it will not be necessary for me to make specific findings of fact on all of these contentious issues. I do not propose, therefore, to review in detail the evidence of all the witnesses, but, I shell endeavour to re- construct the events of the day by taking a broad view of the evidence adduced.The day began for the accused peacefully enough. He first took his horse for exercise ana then went to a stock-fair where he met a number of his friends who have a mutual interest in the promotion of stock-fairs for both amusement and profit. At that time the accused carried no weapon other than a walking stick which had once been broken and had been repaired by binding a band about the effected part. It was while the accused was enjoying the company of his cronies that his wife 'Malerato (D.W. 3) burst upon them with the startling news that the deceased and Mojele were unroofing Kahlolo's house. The accused/was greatly
-3- was greatly shocked to hear this,as he put it:"I stood up Everything came to a stop, that is,all happiness left me."The accused left the stock-fair at once. He was determined to put an end to the destruction of his elder brother's house at any cost. He realized that his walking stick was an inadequate weapon with which enter the fray against his partenal uncles. As ho neared the house of 'Maselloane Mothebe (PW 1), he sow her some distance away and called out to her requesting permission to borrow her husband's fighting stick. When 'Meselloane refused this request, the accused passing her house espied Exhibit B in the yard. He went and took it. Now more securely armed, the accused proceeded on his way to Makohong village.The accused was coming from the direction of 'Mate. The boundary between the villages of 'Mate and Makobong is marked by a line of aloes in which there is a passage referred to in these proceedings as the Aloe-gate. It was in this vicinity that accused and the deceased met.There was evidence that the deceased used a knife to cut the binding of the thatch on Kahlolo's house. When he got down from the roof, the deceased and his brother Mojela went off in the direction of 'Mate Mojela became involved in a fight with some of the Mothebe family who supported the accused. It was variously reported by witnesses that the deceased brandishing a knife attacked Kahlolo's wife Claudia and she threw stones at him in retaliation. Eventually the deceased disappeared in the direction of the Aloe-gate. It was also stated by witnesses. that while he was demolishing the roof, the deceased issued threats against the accused and other members of his faction. Other witnesses said that the deceased fell twice from the roof lending on the hard ground. I suspect that this evidence was designed to explain or at least alleviate the accused's responsibility for the severe head injuries sustained by the deceased. But, as the deceased loft the scene without any visible signs of injury, I am not prepared to take any notice of this evidence.The accused said that when he met the deceased at the Aloe-gate, the latter insulted him and tried to stab him with a knife. Acting entirely in self defence, the accused struck the deceased4/ twice with the iron
-4-twice with the iron bar. It is significant that although people came on the scene to render assistance to the stricken man immediately after this incident, the accused did not toll anyone about the knife, no search for it was made end no knife was ever found at or near the scene. It is also noted that when the accused reported himself to the village headman Tumahole Selebalo (P.W 7) later in the day, he produced both his walking stick and the iron bar but, made no reference to a knife in the hands of the deceased.No one other than the accused and his wife Malerato claimed that the deceased attacked him with a knife. Some witnesses positively stated that the deceased had no knife. I am satisfied that the accused 15 not telling the truth in this respect, but, even if his version was correct and the deceased advanced upon him brandishing a knife and uttering threats, the accused was not justified in retaliating to the extent of hitting the deceased twice on the head with such force as to crack his skull. Ho could have defended himself more effectively by striking at the knife arm of the deceased. If this was self defence, and I do not accept that it was, the accused clearly exceeded the limits permitted by the doctrine of private defence and is guilty of culpable homicide.I take the view that the proper decision in this case rests entirely upon the issue of provocation. In all cases of murder there is on onus upon the Crown to prove the absence of provocationThe Criminal Law (Homicide Amendment) Proclamation 1959 Section 4 defines provocation as follows."(a) The word 'Provocation' means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done or offered to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered(b) For the purposes of this section the expression'an ordinary person' means en ordinary personof the class of the community to which the accusedbelongs(c) Where such an act or insult is done or offered by one person to another or, in the presence of another, to a person who is under the immediate cere of that other or to whom the5/ letter stands
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A lawful act is not provocation to any person for an assault.(e) An act which a person does in consequenceof incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing en assault is not provocation to that other person foran assault.(f) An arrest which is unlawful is not necessarily provocation for an assault but it may be evidence of provocation to a person who knows of the illegality "The Sesotho family law is finely balanced between different interests. Within the system each man and women is aware of his rights and obligations and their importance. A man's standing Within his family may often depend upon his assertion of his customary rights and the acceptance of his customary obligations. The man who defies established custom challenges all those who are affected by his actions. The normal process for the settlement of disputes include a resort to the courts. But, where this does not provide immediate and selutary correction of an abuse of customary law the tensions created may often lead to violence.The accused in this case was, as the guardian of his older brother, in the position of heir to the estate of his father and grandfather. 'Mamatita was required by law to accept that she was the pensioner of her grand-sons If she had any genuine grievances against them arising out of any failure on their part to make adequate provision for her, she had the fight to cell a family meeting to consider her complaints. She called upon her sons to eject the heir from the homestead which was his by right of succession. The deceased, in complying with this request and in setting out upon the destruction of Kohlolo's house created for the accused a situation which called for immediate response on his part if he were not to lose all credit within the family It was a direct challenge to his position and a public denial of his rights as the protector of his elder brother The action of the deceased placed the accused in a situation where, as he said "all happiness left him". He could think only to arm himself with the intention of putting a stop6/ to a grave wrong
-6-to a grave wrong. It is just possible that if he had not met the deceased on the way, he might have been able to claim official assistance from the Chief or Headman. I do not know where the deceased was going at the time that he encountered the accused. But, I accept that when the accused saw him, he was labouring under a great resentment of a kind, sufficient to deprive him of his power of self-control. I take the view that the provocation offered to the accused by the deroofing of the house of his brother was the principal factor in this case. It is immaterial whether or not the deceased offered any additional verbal insults at the time that he met the accused.As the Crown have failed to prove that this was a case in which the accused acted in the absence of provocation, the accused must be found not guilty of murder. As I reject the contention that the accused acted in self-defence, I hold that this was an unlawful killing and I bring in a verdict of culpable homicide against the accused accordingly.(Counsel address the Court on sentence. No previous convictions recorded against the accused).The accused is sentenced to two years imprisonment suspended for 3 years on condition that he is not convicted of any offence of the nature of an assault in which a weapon is used, committed during the period of the suspension.JUDGE9th March, 1981