CRI/T/18/80

IN THE HIGH COURT OF LESOTHO.

In the matter of:

REX

v

'MATHAPELO MAPHOBOLE

JUDGMENT

Delivered by the Hon. Mr. Justice M.P. Mofokeng

on the 29th day of January, 1981.

The accused is charged with the murder of her husband

(hereinafter referred to as the deceased) it being alleged

that on or about the 20th day of October, 1979 she unlawfully

and intentionally killed him. To this charge the accused

pleaded guilty and Mr. Mda who represented her intimated to

the Court that the plea was in accordance with his instructions.

However, and because of the seriousness of the charge, a plea

of not guilty was entered on her behalf.

In a nutshell, the Crown's version is simply that the

accused put in a poisonous substance in Sesotho beer (at

their home) contained in a plastic container. She then

poured that poisoned beer into a mug and with her own

hand, gave it to her husband. He drank at least a little

of that same beer. He immediately complained that the beer

he had just been given, and drank, tasted very bad. It had

the smell of onion. He accused his wife of having put poison

in it. He further complained that he felt as if his intestines

were being cut. Soon thereafter, he ceased to speak and

ultimately died.

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The defence version also briefly, was to the effect

that the deceased had previously bought medicine for

killing cattle lice. It was contained in a plastic

container. However, it snowed very heavily with the result

that the deceased was unable to proceed to the mountains

where his cattle-post was situate. Later the contents of

the plastic container were emptied and the plastic container

just lay there around the house unused. It was then said

that when the accused put the Sesotho beer in it, she

forgot to wash it. That was how the Sesotho beer got mixed

with the poison. The accused's defence was put neatly as

follows to Mr, Moholobela during the latter's cross-examination:

"D.C.- According to her version as given

so far, she seems to say that she

put beer there (in exhibit 1)

unaware of its previous contents,

at least having forgotten that

there were some previous contents?

That I do not know."

Machabe Lenka, a young herdboy (aged about 14 years)

briefly deposed that he was related to the accused. On the

Saturday in question, at about dusk, he was requested by the

accused to fetch her beer contained in a plastic container

from another house. He brought the beer to the accused who

then poured it into a mug and handed it to the deceased.

The latter drank the Sesotho beer thus offered to him by

his wife. He swallowed some of this beer but a certain

portion remained in his mouth because he then went outside

and spat it. He came back and accused his wife of having

put poison in the beer. He said he could smell it. Then

one Moholobela came and to him also, the deceased complained,

in the presence of the accused, that the latter had made him

to "drink poison there at his home because that beer

smelt poison which he did not know which smelt like onion."

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Machabe says that it was Moholobela who said that it might

be that the container had not been properly washed. As

we shall see presently, Machabe was mistaken. It was the

accused who said so. After Moholobela had left, the deceased

continued to accuse his wife of having put poison in the

beer. Accused had then been given the mug containing the

Sesotho beer by the deceased to drink. But she merely put it

down next to her.

Shortly after Moholobela left, deceased began to perspire.

When asked by the witness whether he usually perspired when

drinking he replied in the negative. Immediately thereafter

deceased went outside and then came back. He asked that his

bedding be prepared. He sat on a stool and said he felt as

though his intestines were being cut. When Machabe asked

the accused what the matter was with the deceased, accused

said that deceased had laped into mental illness. He once

had a mental illness. As the accused said so the deceased

pointed a finger at her. It was at this stage that accused

sent him, Machabe to go and call people. He saw the accused

leave holding the deceased saying that "the deceased was

going to hold her and beat her." However, when he came from

raising an alarm, he found the deceased having died.

Under cross-examination he said that that medicine was

bought because it was said that cattle had lice. This medicine

was contained in a bottle similar to exhibit 2. He had put

that medicine then on the window sill. It was then that he

saw that there was an empty plastic container. He said the

plastic container which contained medicine to wash sheep came

with the verterinary clinic staff and after the sheep were

washed they took it back with them. That container was

bigger and whiter in colour. He was adamant that the

medicine which was bought was "for cattle when they

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were very loan because they had lice so they were coming to

be dipped or washed." He never saw another container similar

to exhibit 1. This exhibit belonged to the home of the

deceased and

"H.L. - On that day when you were asked to

go and fetch it from the other room,

was it the first time you saw it being

used?-It had been used for a

very long time."

Machabe also mentioned in his evidence-in-chief that the

deceased at one stage took a stick and said that if he was

going to die he was going to die with the accused. He

then placed the stick on the floor and put his feet on it.

He did not actually assault her.

Finally Machabe said that the beer which was in the

mug was poured into the dirty water in a basin which

accused was using to wash dishes. The accused did so. He

says that the container was not full of liquor that is why

all the liquor from it was poured into a mug.

Moholobela Maphobole is a bugle in the village and is

a relative of the accused. On the Saturday in question

there had been Sesotho beer at the accused's home earlier

during the day. A beast had died and they helped the deceased

to skin it. The accused was present at home and was cleaning

its intestines with the help of some women. Later they all

drank and none of them got drunk. Late in the afternoon

they dispersed. He says about accused's condition:

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was then asked whether she heard what her husband had said.

She said she did and that she had, in fact, put medicine,

which was in exhibit 2, in the beer. She said she had

found it on the window sill of another room. She said

she did what she did because deceased had refused when she

wanted to go to her maiden home. She then went to point

the medicine out and

"C.C.- And what did she say when she