CRI/T/27/82 IN THE HIGH COURT OF LESOTHO
In the Matter of
R E X
by the Hon . Mr. Justice B.K. Molai on the 22nd day of February,
The accused appeared before me charged with murder it
"In that upon or about the 1st June, 1982 and at or
near Kolonyama in the district of Leribe, the said accused, acting
and with intent to kill, did assault
'Mamokotjo Likotsi and inflict knife wounds upon her
from which the said 'Mamokotjo Likotsi died at Kolonyama on the 1 st
When the charge was put to him, the accused
"I am guilty but with"reasons."
Mr. Matsau who represented the accused in this matter
informed the Court that the plea as tendered by the accused was in
with his instructions and that the reasons referred to by
the accused in his plea would be dis-closed in the course of his
in mitigation. I directed that those reasons (if any) should
be disclosed as they might have a bearing on what accused's correct
plea was. Wherefor, the accused explained that the reasons he had in
mind were that he had long been warning his late wife, 'Mamokotjo
Likotsi,to stop her love affair with a certain man called Martins.
In 1980 his wife (deceased) gave away his blankets to Martins.
actually saw the blankets being hanged on a fence, for drying, at the
home of Martins . When he (accused) questioned her about
blankets, the deceased told him that she had given the blankets to
2/In my view..........
In my view,the reasons disclosed by the accused
did not affect, in any way, his plea of guilty and it
accordingly entered as pleaded.
Mr.Kabatsi, who appearea on behalf of the Crown,
accepted the plea. As has already been pointed out,
accused was facing a charge of murder. Section 240(1)
(a) of the Criminal Procedure and Evidence Act,1981
"(1) If a person charged with any offence before
any court pleads guilty to that
offence or any offence of which he
be found quilty on that charge, V
the prosecutor accepts that plea,
(a) if it is the High Court, and the
person has pleaded guilty to
any offence other than murder
bring in a verdict without hearing
The words have underscored in the above quoted section
indicate, in my view, that an accused person is entitled to plead
any offence including murder, and
if the prosecution accepts the plea, the High Court has
a discretion , except in cases of murder, to return a verdict
without hearing any. evidence. That is where the accused
charged with murder as in the present case, there must
be evidence establishing to the satisfaction of the High Court
whether or not
an offence has in fact been committed before the court
can return a verdict.
In order to satisfy this statutory requirement and
relying on the provisions of sec. 273 of the Criminal' Procedure and
Act, supra, Mr. Kabatsi informed. the Court that, with the
exception of the following small portions in the depositions of
and P.W.9 which should be expunged from the record,the defence
was admitting the entire preparatory examination proceedings :
- page 4 - lines 14- 19 -
Accused never informed me that deceased was in love with
small boys at any stage (not even in the 31st May, 1982 gathering)
other men. Accused did not even inform me when I asked him
what he was stabbing his wife for. I khow this knife before Court. It
was already wrapped with green tape."
3/ P.W.9 ......
"Accused has never indicated or reported his wife's
unfaithfulness to me. Neither did he ever asked me to speak to them.
to my knowledge accused is a butcherman there."
Page 10, lines 14 - 17 -
"I never knew anything concerning Martins and
accused's wife. Martins and accused were friendly before. I do not
know of anything
concerning accused and his daughter in law.
In view of that admission, Mr. Kabatsi continued,
counsel for the parties were therefore applying that the proceedings
of the preparatory
examination be accepted as evidence. Mr. Matsau
I granted the application and with the exception of the
portions that had been expunged from the depositions of P.W.2 and
proceedings of preparatory examination were accordingly
accepted and admitted in evidence before this Court.
The salient question was whether or not formal
admissions in termS of sec. 273 of the Criminal Procedure and
Evidence Act, supra,
formed evidence within the meaning.
or for purposes of sec. 240(1)(a) of the Act. A similar
question was dealt with at length by Mofokeng J. in Rex
v. Sepanya CRI/T/17/77 at page 2 et seq. (unreported) and, in my
so, the learned judge replied it in the affirmative.
Ho was not overuled by Milne J.A. who wrote the majority judgment in
v. Rex C. of A (CRT) Mo."/ of 1977 (unreported).
Therefore, I am left with no doubt in my mind that the proceedings of
examination admitted in terms of sec. 273 of the Criminal
Procedure and Evidence Act. 1981 in the present case form evidence
the meaning, or for purposes, of sec. 240( )(a).
Briefly, the evidence disclosed by the proceedings of
the preparatory examination is that on 15th June. 1981 . following a
report, P.W.7, Trooper Mothepu, proceeded to accused's house
at Kolonyama where he found that accused's wife (deceased )had
bruises on the face and her eyes were completely closed.
P.W.7 questioned the accused and the deceased about the injuries on
latter. Accused simply refused to answer. The deceased gave an
4/ (but this was not....
(but this was not disclosed by P.W.7 in his evidence) I
shall return to the evidene of this witness later in this judgment
P.W.8. W/O Toloane also testified that August. 1981, he
received a certain report following which he called
the accused and the deceased together in van attempt to
reconcile them. Deceased complained that accused was having an affair
his daughter in law. In turn accused complained that the
deceased was having a love affair with one Martins.
P.W.8. reprimanded both the accused and the deceased
for their behaviour and asked them to go and keep peace. They both
asked forgiveness from each other before parting with
During September,1981,P.W.8 had the occasion to call
on accused and deceased at their home and got the
that they were then happily staying together.
However, P.W.2, Lebakeng Lebata, an elder brother of
accused, testified that on 31 st May,1982, the accused came to him in
where he is working at the Ministry of Interior and informed
him that he was at loggerheads with the deceased. Accused urged him
to go to Kolonyama and reconcile him and the deceased.P.W.2
accordingly went to Kolonyama and chaired the family gathering at
the accused, the deceased,their two sons who were at home, on
short leave, from their place of work in the mines were present.
Deceased complained that she and the 'accused were no
longer living happily together at home. The meeting ended on a
with both the accused and the
deceased asking for forgiveness from each other. P.W.2
slept in one of accused's 4 huts for the night.
On the following morning after accused's two sons had
returned to their places of work, P.W.2 was in one of the huts when
screams from another of accused's huts in which the deceased
was. P.W.4 and P.W.6, close neighbours of accused, also testified
they had heard the screams as a result of which they came to
P.W.5, Malikotsi Likotsi, a 9 years old daughter of
accused, testified on oath and told the Court that on the morning in
the deceased was standing next to a table when she saw
accused suddenly stabbing her on the neck with the knife -Exh.1.
was not in any way
fighting the accused when the latter suddenly stabbed
Wheh she was thus stabbed, the deceased fell down on the
of the table. Accused continued stabbing the deceased
even after she had fallen down. He stabbed her on the
abdomen; hands and all over the body. As he stabbed the
deceased accused was saying:
"I have told you."
Coming back to his evidence,P.W.2 said when he heard the
screams, he went to the hut in which the deceased was. As the door
open, he could see the deceased
crawling on the floor towards the door. When she
noticed him. the deceased called out for help and said :
brother, my brother!"
At that stage P.W.2 also saw accused stabbing the
deceasedseveral times with the knife- Exh.1. He was stabbing
heron the back. Deceased became hopelessly tired. P.W.2 asked the
accused what the matter was but the latter ran
passed him (still holding Exh. 1 in his hand) into one
of the huts from where he got a bicycle and rode away. When accused
away on a bicycle,P.W.4 and P.W.6 who had just come to the
scene in response to the screams,assisted P.W.2 to raise the deceased
to a sitting position in an attempt to stop her bleeding. They all
noticed that deceased had
sustained multiple stab wounds. P.W.4 and P.W.6 told
Court that they did not know anything about deceased's
love affair with Martins or any other man for that matter.
A report was sent to the Chief of the area,P.W.9,
who arrived at the time the deceased was passing away.
P.W.9 sent for the police who came and carried the deceased's body to
at Hlotse Government Hospital. P.W 2
was one of the people who accompanied the body to the
mortuary. He testified that the body sustained no
injuries while it was being conveyed to the mortuary. He
later identified it as that of the deceased before P.W.3, the medical
who performed the Post Mortem Examination.
In his evidence P.W.3, Dr. Ewals, testified that, during
the Post Mortem Examination on the body of the . deceased, he
13 external wounds mostly on lower abdomen, upper
legs and on the back. When he made internal examination on the
that there was a hole in the left lung and
behind the right kidney.
6/ There was a lot ......
was a lot of blood around the kidney region. P.W.3 found that the
deceased had lost a lot of blood and formed the opinion that
was due to haemorhage shock resulting from the injuries that had been
inflicted on her. In the opinion of P.W.3 the knife,
have been used, with considerable degree of force, inflict the
injuries that resulted in the death of the deceased
Now,coming back to his evidence; P.W.7 told the Court
that, following a certain report, on 1st June,1982 he proceeded to
home at Kolonyama where P.W.2 showed him the deceased's
body which was lying just outside accused's house. On examining the
he found that it had sustained multiple bleeding injuries. He
carried the body in a police vehicle to Hlotse mortuary. He
the evidence of P.W.2.that no additional injuries were
sustained by the body while it was being conveyed from Kolonyama to
P.W.1 ,Lt II Mofalali, testified that on the early
afternoon (1.00 p.m.) of 1st June, 1982, the accused came to his
office at the
airport police station in Maseru and
said he was surrendering himself as he had fought and
stabbed his wife with' Exh.1 which he handed in. P.W.1
examined Exh.1 and found that it had some blood stains
. According to the evidence of P.W.1,accused appeared to be confused
Accused's explanation for fighting his wife was the
latter's unfaithfulness to him. P.W.1 kept accused in custody. On 3rd
P.W.1 transferred accused to Leribe police station where
on 7th June, 1982, P.W.8 cautioned and charged him of the murder of
It common cause that the deceased was assaulted and
fatally injured by the accused on 1 st June, 1982.
Considering the evidence as a whole, I can find no
justification for the accused's brutal assault on the deceased. I
view that the assault was unlawful. The only question
is whether or not in his unlawful "assault on the deceased, the
had the requisite subjective intention to kill. There is
undisputed evidence of eye witnesses, P.W.5 and P.W.2 that the
seen stabbing the deceased several times with a knife on
the abdomen, the back and all over the body even after the deceased
helplessly fallen down and was crawling on the floor. The
evidence of P.W.3 that, in the course of his Post Mortem Examination
the body of the
7/deceased he found ...
deceased,he found not less than 13 stab wounds, mainly
on the abdomen and the back,is consistent with the
manner in which the accused assaulted the deceased. I
find no good reason why the evidence of P.W.5
by that of P.W.2 should be doubted on this point and I
prepared to accept it as the truth. That being so it
must be accepted that in stabbing the deceased in the manner
described by the
witnesses, the accused foresaw the possibility of
his act resulting in the death of the deceased, yet he persisted in
of whether death ensured or not. That constitute legal
intention on the part
of the accused. It follows therefore, that in my view,
the question whether or not in his unlawful assault on the
deceased, the accused had the requisite subjective
intention to kill must be replied in the affirmative.
In the premises, I am satisfied that the offence against
which the accused is charged has been proved beyond a reasonable do
evidence placed before this Court and the accused is
accordingly found, guilty of murder as charged.
My assessors agree.
B.K. MOLAI JUDGE
22nd February, 1983
For the Crown : Mr. Kabatsi, For the Defence : Mr.
CRI/T/27/82 EXTENUATING CIRCUMSTANCES
Having convicted the accused of murder, it now remains
for the Court to determine whether or not there are
any factors, connected with the commission of the crime,
which tend to reduce his moral blameworthiness. The
accused must prove the existence of these factors on a
balance of probabilities and the test to be applied is a
The accused gave evidence and testified that his late
wife (deceased) had a love affair with one man by the name of
Martins. The deceased
was in the habit of making
with his (accused's) property to this man, Martins. On several
occasions the accused, in vain, warned the deceased and Martins
stop their relationship. Life between the accused and the deceased
became gradually very unpleasant at home. This culminated
assaulting the accused and the deceased refusing him conjugal rights.
On the day preceeding the day on which his late wife
met her unfortunate death, accused's elder brother had
presided over a family council at which an attempt was
made to reconcile the deceased and the accused. On that fatal morning
June,1982, and as a gesture demonstrating that peace in the
family had been restored, the accused entered the hut in which the
deceased, P.W.5 and another child were and tried. to kiss the
the deceased nagged at him saying she did not want his kiss and the
only man she loved was Martins. That was the last straw.
became confused and in his confusion reached a knife, Exh.1 , which
had been lying on -the. shelves. ' He -found himself
deceased with that knife in the manner described by the witnesses at
the preparatory examination. He had no premeditation
to inflict fatal
injuries on his wife.
That the accused believed that the deceased and Martins
were maitaining an illicit love affair is perhaps borne out by the
of P.W.8 and P.W.1, the police officer's who testified at
the Preparatory Examination stage that the accused had come to them
reports or complaints about the deceased's unfaithfulness to
2/On these grounds ......
On these grounds, Mr.Matsau submits that the cumulative
effect is that there are extenuating circumstrances in this case. I
It may be added that Mr.Kabatsi for the crown also
concedes,and in my opinion rightly so,
extenuating circumstances exist in this case.
It follows therefore,that in my view, the proper
verdict in this case should be the one of murder with
extenuating circumstances and I accordingly find.
My assessors agree with this finding.
10 years imprisonment operative from 1st June,1982, the
date on which the accused was kept in custody.
B.K. MOLAI JUDGE .
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