IN THE HIGH COURT OF LESOTHO
In the matter of :
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 10th day of March, 1982
The two accused persons Ramare Masilo(Al) and Tsabello
Masilo(A2) are indicted before me on a charge of murdering,
Michael Thupa (the deceased) on or about the 4th day of March
1981 at or near Kamoho in the district of Butha-Buthe. A2
is Al's nephew.
It is common cause that the deceased died probably
instantly from a single stab wound in the chest which penetrated
into the trachea defined as the "principal air passage of body
from larynx to the bronchial tubes".
It is also common cause that Al's wife Matsipa had on
at least one occasion previously to the time that gave rise to
these proceedings, removed from her matrimonial home and had gone
to Kamoho village. It is reputed that Matsipa was the "niece" of
the deceased who lived at Kamoho.I say "reputed" because there
is no direct evidence of such a relationship. Al did not
apparently know him. My assessors think that he was a far
removed maternal "uncle" and they seem to think that it is
possible that he had not been involved in the marriage arrangements
between A1 and his wife Matsipa. Be that as it may be deceased
put up Matsipa with his widowed daughter in law Matsosane Thupa
(PW5) who had rented a room in a block consisting of two rooms
some distance fr6m the house in which he lived. She stayed there
for about a week previously. Then A1 came and fetched her. It
is certain that Matsipa left her matrimonial home with her child
for a second time because of some disagreement with A1. We have
only A1's word that he had not given Matsipa offence that
warranted her leaving home to go and seek refuge in Kamoho village.
The evidence is to the effect that on that 4th March 1981
Matsipa arrived at about 5.30 p.m. with her child and put up at
Matsosane (PW5). Shortly afterwards Al arrived with A2. We have
more than one version of what happened after their arrival but
there is no doubt that Al and A2's object was to take away, by
force if necessary, his wife Matsipa and his child back home and
that Matsipa, at any rate initially resisted,saying she does not
want to go back to a "Tortoise" - My assessors have not heard of
the expression but they seem to think, and I agree, that it is a
deragatory term. Present at the time were three women Machaka
(PW1) Masefako (PW2) and Matsosane (PW5) the deceased daughter in
law with whom Al's wife put up.
Whilst Al was chasing and assaulting his wife and terrorising
the other women above mentioned, Machaka's husband whose name
was Sam(he did not give evidence) arrived and tried to intervene.
He too was assaulted. The upshot was that the women and Machaka's
husband Sam fled the homestead in different directions.
Masefako (PW2) testifies that she ran to the home of
Mamosela where the deceased stayed which was in an adjacent
village situate half a kilometer away (pointed) to inform1 him
that his niece Matsipa was being assaulted by her husband who had
come to take her away by force. She found the deceased asleep.
He was a man of sixty. He was woken up and urged by Mamosela to
go and intervene. Mamosela was said to be an elderly woman with
bad eyesight. The deceased got up, and took hold of small stick,
and started walking towards Matsosane's house. He had a choice
of several paths. He had to traverse(before reaching his daughter
in law's house at Kamoho) open country.
If I may digress for a moment here, Machaka, who had fled
her home, stood on a hillock, but could see the proceedings below.
A1 finally got hold of his wife Matsipa. The last she saw of them
was Al driving his wife and A2 carrying the child towards the
fields in the direction of the house where the deceased stayed.
To resume: Masefako's followed the deceased towards her
house. She says she was following the same path the deceased
took and Matsoane, who came to raise the alarm as well, followed
her with Mamoaela the lady with poor eyesight. It was getting
dusk by then. Masefako saw A1 driving his wife and A2 carrying
the child and they met the deceased face to face. Masefako
testifies that she heard Matsipa appealing to the deceased saying:
"Father Michael please help me I am being assaulted". A1 shouted
to his wife "So you you already know the names of those ruffians
in this village.1 Is he (meaning the deceased) the person with
whom you are staying?" to which question Matsipa replied that
he was. The last thing Masefako heard was A1 telling A2: "Stab
him with a knife" and the deceased protesting "Why what have I
Masefako ran to her home to raise the alarm and on her
return with village help the deceased's body was at about the same
spot where the encounter between A1 and A2 (on the one hand) and
the deceased (on the other) had taken place.
A1 testifies that when he found his wife absent from the
matrimonial home on that day he proceeded with A2 to Kamoho to
bring her back home. He knew she would be there. He admits
assaulting her at Matsosane's house. She ran in the direction of
the fields and he gave chase. A2 followed behind some distance
away carrying the child. He caught up with her and thrashed her
again. As he was doing so he suddenly felt someone striking him
on the head from behind. He let go his wife and looked back and
saw a male adult (the deceased) who was a stranger to him. He
turned to face the deceased who pushed him and was aiming to
strike again. A1 says he took out his knife from his pocket,
unclasped it with his teeth, and stabbed the deceased on the chest.
The deceased fell. He caught his wife and brought her back to
where the deceased had fallen and said to her "Do you realise I
inflicted injuries on this man?" It was only then that she
(Matsipa) told him that that man was the person with whom she was
There is little doubt that A1 was labouring under the belief
that his wife was having an affair with someone in Kamoho. He
says he had no particular person in mind. According to Machaka
A1 said to A2 when her husband Sam arrived "Stab this man, he is
the one having an affair with my wife". I must add that there is
not an iota of evidence to support Al's suspicions against Sam nor
is there evidence that the deceased, who was considerably older
than Matsipa, had an affair with her either.
/A1 and A2
A1 and A2 reported to Butha-Buthe charge office the same
evening about 8,30 p.m. A1 said he stabbed a person whom he
did not know, but with whom his wife had been staying, and handed
the officer (L/Sgt Motlalane PW3) a broken blood stained knife
(Exhibit 1) and the broken stick (Exhibit 2). This is a very
light stick. A2 explained to the officer that the stick was
carried by the man (deceased) with whom A1's wife was staying.
Al from the witness box says that the stick was his and was
broken when he assaulted his wife in or around the house when
chasing her. Machaka says the deceased, when he went t.
intervene, carried a light stick "similar" to Exhibit 2 but
was not sure if it was in fact Exhibit 2.
There is no evidence that A2 (though he had made common
cause with A1 to retrieve his wife by force), made no common
cause with him in killing the deceased, A2 must therefore be
acquitted. A1 put up a feeble case of self-defence and this
must be rejected as utterly fanciful. He never complained to
the police about injuries and they noticed none. The officer
who visited the scene and saw the terrain where the body was
lying noticed no evidence of a struggle in the vicinity.
We are not sure, however, in view of the circumstances,
that A1 had the subjective intent to kill. The encounter with
the deceased was a chance one, he was in rage against his wife,
and we are not satisfied that he formed a specific intent to
We find A1 guilty of culpable homicide.
We find A2 not guilty and he is discharged.
My assessors agree.
SENTENCE: 7 years imprisonment of which 3 are suspended
for 3 years on condition that accused be not
convicted of an offence involving violence to the
person in which he receives a sentence of more
than six months imprisonment.
10th March, 1982
For Crown : Mr. Khauoe
For Defence: Adv.Monapathi
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