IN THE HIGH COURT OF LESOTHO In the
Matter of :
R E X
SELLO NKETU JUDGMENT.
Delivered by the hen. Mr. Justice F.X. Rooney on the
11th day of August, 1982.
Miss Moruthane for the Crown, Mr. Maqutu for the
On the 21st June, 1981, at Ha Senekane in the district
of Berea, the accused killed a young married woman named 'Maliepollo
by striking her on the head with an object which I would
describe as a hatchet, but, which was referred to as a tomahavk or an
by several witnesses. It is as capable of being used to chop
wood as it is to hammer nails. It appears to be made of steel with
rubber handle. It measures 32.5 cm from the bottom of the handle to
the top of the head. The blade of the hatchet is 8.5 cm long
hammer knob on the opposite side is 3 cm in diameter. It weighs 925
The cause of death was cerebral contusion and damage and
intracranial bleeding. In the opinion of Dr. Park, who performed the
mortem examination, the victim received one blow on the head
with a blunt heavy object applied with strong force. It caused a
depressed fracture in the parietal region of the skull 4.5
cm in diamenter. The bone fragments were buried
2/ in the brain ....
in the brain tissues. It can be concluded that the
deceased was struck with the hammer head with sufficient force to
punch a hole
in her skull.
It is not in dispute that the accused and the deceased
were lovers and had been such for a period of some years. Their
continued without regard to the respective obligations of
the parties. The accused's wife left him some years ago. The affair
the active encouragement of the accused's aunt 'Mamaipato
Ramahata (PW.6). It was her action in reporting to the accused
that she had seen or suspected which precipitated the
crisis which directly led to the death of the young woman.
when the indictment was put to the accused, he offered a
plea of culpable homicide. Miss Moruthane, who appeared for the
quite willing to accept the plea. however, I was not
satisfied that the evidence recorded at the preparatory examination
the prima facia view that the accused was guilty of
culpable homicide only. This Court is not bound, after an accused
not guilty to the charge to enter a plea of guilty to a
lesser charge even if the prosecutor accepts it. (R. v. 'Makhethang
(2) LLR 359). The trial therefore proceeded on the basis
that the accused had to answer a charge of murder. The issue to be
was the subjective intention of the accused in striking the
fatal blow. The Crown was obliged to prove that the accused intended
to kill. All the circumstances had to be examined in order to
discover his intention.
The evidence disclosed that on the Sunday afternoon in
question, the deceased returned to the village in the company of a
Lekhali (PW.2). The two ladies went together to the
house of one 'Malebajoa whore there was beer drinking. Among these
Hape Phaqane (PW.3) and Lebajoa Senekane (PW 5).
According to 'Malerole, Hape (who is a young man of 23 years) made
advances to the
deceased. He was sitting close to
3/ her and after ....
her and after a while he left the rondavel in which they
were drinking. shortly afterwards, 'Malerole noticed that the
disappeared. She went in search of her but when she
next saw her, she was dead.
Hape Phaqane (PW.3) agreed that he met the deceased and
'Malerole (PV.2) at 'Malebajoa's. He did not know either of these
by sight. He denied that he paid any particular
attention to the deceased. Although he admitted that at one stage he
left the rondavel,
he said it was to go home and fetch tobacco. In
particular, Hape said that it was untrue th8t he went into a flat
roofed house adjoining
the rondavel with the deceased or that he was
discovered there by the accused.
Hape said that when he returned with his tobacco, he
re-entered the rondavel in order to finish his beer. The deceased and
were present. While he was sitting there, the accused
entered and having greeted them, pulled out a hatchet from his waist
the deceased with it. They had all stood up when the accused
produced the hatchet. Hape ran out through the door and raised the
Later when he went back into the rondavel, the deceased was
lying on a skin covered with a blanket.
In cross-examination, Hape told the court that he ran
out because the accused was coming towards him aggressively. when the
first produced the hatchet, Hape was unsure whom he was going
to strike. He denied that the deceased caught the accused by the
before she was hit. He said that the accused had no reason to
attack him or the deceased. He did not know that they were lovers.
Lebajoa (PW.5) who was present during the incident, was
a poor witness. He told the Court that while they were drinking in
the accused entered and without greeting anyone,
produced an axe and chopped a woman with it".
4/ Although born ....
Although born in 1939, this witness is still unmarried.
He admitted that he had been drinking that day and that his
events was a little confused. He gave the general
impression that ne was a man who derives little from life apart from
as the Consumption of beer may offer.
'Mamaipato (PW.6) played an important role in the
tragedy. She is Very fond of the accused. She fostered his love
affair with the
She told the Court that when she called at 'Malebajoa's,
she observed the conduct of the deceased and Hape. She saw them go
the flat roofed house. She came to the conclusion that they had
improper intentions. She observed them together and, feeling Jealous
on behalf of her nephew, she immediately went to inform him of what
she suspected. He was at 'Mamabusa's another drinking place
distance away. Although 'Mamaipato denied that she instigated the
accused to take action in the matter, she was concerned
interests. She explained that the deceased did not care for her own
Before I consider the evidence given by the accused, I
may say that I am satisfied that Hape has not ,been truthful when he
that he was interested in the deceased. The evidence that he
induced her to leave the rondavel and go with him to another house
over-whelming. I believe that it was Hape's intention to persuade the
deceased to have intercourse with him. He has decided to
conduct in order to escape any measure of responsibility for what
subsequently occurred. The fact that Hape gave false
this score does not necessarily lead me to conclude that his evidence
is. totally unreliable. It has not been shown
that he bears any
animosity towards the accused.
The accused gave evidence to the effect that he is 48
years of age, married with four children. His eldest child was born
and the youngest in 1976. His wife returned to her maiden
home the year after the birth
5/ of his latest
of his latest child on account of his persistent love
affair with the deceased. He claims that he respected his lover's
being discreet about his affair. Although the accused
received no complaints from the husband, he admitted that the
him that her husband knew about her misconduct and had
remonstrated with her on that account. The accused had lavished gifts
his paramour and was jealous of her.
Earlier that day he had gone to the house of a man
called Rathetsane armed with the hatchet. His purpose was to scarify
a beast which
was lame. After he had accomplished this task, the
accused went to the house of 'Mamabusa (not a witness) to drink beer.
was there, 'Mamaipato (PV.6) came to him and told him that
his lady love was to be found with Hape at 'Malebajoa's place in a
roofed house. She said that the door of the house was closed.
All this was told to him privately while he was in the company of
Tlali (not a witness). When Tlali asked 'Mamaipato what she was
talking to the accused about, she repeated the story. Tlali
reprimanded her for mentioning such matters to the accused. however,
'Mamaipato persisted and said that she was jealous on his account
he had spent a lot of money on the deceased.
The accused said that for a time he ignored what had
been told to him. But, his aunt kept on repeating the story until
lost his temper. He got up and walked to 'Malebajoa's
house which is only about a hundred metres away.
According to the accused, when he reached the rondavel,
he found Lebajoa seated alone inside. He said that there is a window
from the rondavel into the house with the flat roof. He heard
soft noises coming from within when he asked Lebajoa who was inside,
the latter replied that he did not know. He said that he opened the
window a little and saw Hape "stand up from preparing his
He also saw the deceased getting up from the floor. when he went to
the flat, he found the
door locked. He shouted to them "Come out, what are
you doing In there?" The door opened and Hape and the deceased
out and went back into the rondavel.
The accused continued according to my note :
"To scare her I used the axe not intending to hurt
her. But I did so. Her head was in the region of my stomach, she held
and I tried to hit her so that she would leave. The axe is a
heavy object and I did not use much force. It was not my intention
to do this thing. I was not fighting with her, I wanted to fight
Hape. She fell and Hape ran out of the rondavel. I killed her
not intentionally. Before this occasion, I had chastised the deceased
with a small stick. I felt that I had taken liquor but
I was not
staggering or drunk".
In cross-examination, the accused agreed that he had
lost his temper before he left 'Mamabusa's house. He insisted that he
couple coming out of the house and that they were not in the
rondavel when he arrived. He said that he was not advancing on the
when she took held of him. He had no intention of using
the hatchet which he agreed was a dangerous weapon. The accused
before the Court the position which he and the deceased
were at the time he hit her with the hatchet.
Now it seems to me common sense that if the deceased was
grasping the accused about the waist and was pressing her head
stomach, it would have been very difficult for the
accused to have struck her at such close quarters with a force
sufficient to do
the damage which was done in this case. Hape denied
that the deceased caught held of the accused just before she was
Although Hape was not a satisfactory witness in the
respects that I have already mentioned, his version as to what
far more plausible than that propounded by the accused.
If the accused had wished to detach the deceased from him, he could
done so more easily and effectively by pushing her to one side.
I am unable to accept that what the accused told the Court was true.
7/ The accused
The accused admitted that he is a jealous man. He was
enraged by what he was told by his aunt and he was in that state of
he reached 'Malebajoa's place. There is a conflict of
evidence as to whore the couple were when the accused arrived. But,
agreed that the actual attack on the deceased took place, not
in the flat roofed house, but, in the adjoining rondavel. I am
that the accused struck the deceased in a fit of rage and
that the blow with the hatchet was a strong one.
What was the accused's intention at that moment? While
it may be said that there is no evidence that when he struck the
he intended to bring about her death, there is no doubt
that he must have forseen the possible consequences of his act and
as to these consequences. I do not consider it
necessary to review the many authorities which deal with what is
described as subjective
forsight. I have found that the accused
struck this woman with a lethal weapon with a reckless disregard of
the consequences. That
is in itself sufficient to establish the legal
intention to kill.
The killing was without provocation as that term is
defined by statute in the Criminal Law (Homocide Amendment)
The deceased may have been the lover of the
accused but that is all. She did not stand in relation to him in any
filial or fraternal relationship. Her supposed
misconduct with Hape cannot said to be wrongful within the meaning of
of the Proclamation. Her relationship to the accused,
however strong, their affections, remained an illicit one. The
no business with her and therefore he could not complain
if she elected to bestow her favours elsewhere.
In the circumstances (my assessers agree with me) the
proper verdict in this case is one of murder and it is entered
Extenuating circumstances are found because the accused
acted in a rage without premeditation.
(The Judge's remarks before passing sentence form part
of the record).
Ten (10) years imprisonment.
F.X. ROONEY. JUDGE.
11th August, 1982
Attorney for the Crown : Law Office Attorney for the
Defendant: Mr. Maqutu.
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