IN THE HIGH COURT OF LESOTHO
In the matter of
v LEBOHANG JOSEPH KOOKO
Delivered by the Hon. Mr.
Justice B.K. Molai on the 25th day of October, 1983.
The accused is charged with the
crime of murder, in that on 1st October, 1982 and at Ha Mosobela in
the District of Berea he unlawfully
and intentionally killed the
deceased, 'Malikhetla Shakhane.
The evidence of P.W.5, the 18
years old Palesa Shakhane, was that a little after sun set on 1st
October, 1982, the deceased arrived
from her maiden home when she
called at her house. Deceased was carrying some provision in a paper
bag. P.W.5 who was a friend and
a relative of the deceased asked the
latter to give her some of the provision she was carrying in the
paper bag. The deceased said
she would give her the provision if she
could accompany her to her house which was in the same village. P.W.5
agreed and the two
women set out for the deceased's house.
On the way to her house, the
deceased suggested that they should call at the home of a relative
P.W.3, Nyatso Shakhane, where she
had left her children.
2/ Before reaching ...
Before reaching P.W.3's house,
they passed the accused who was lying on the road side.
As they passed him, the accused
was laughing and saying if he could miss a person thrice with okapi
knife, he would not be a real
Motaung. The women did not take notice
of what the accused was saying and continued on their way to P.W.3's
house. They found P.W.3
outside his house. At that time P.W.5 noticed
that the accused had been following them. He was holding a knife with
which he threatened
to stab P.W 3. P.W.3 was armed with a stick with
which he too threatened to hit the accused. The deceased stopped the
two men from
When P.W.3 threatened to hit him
with a stick, accused ran away to the spot where P.W.5 and the
deceased had passed him lying on the
road side. He started hurling
insults during which he was heard saying' "There is a prostitute
shouting 'Lebohang! Lebohang!
at night.". P.W.5 did not know
whom the accused referred to as a prostitute. When she stopped the
fight, deceased had merely
said ""Tsemeli stop fighting".
The Court was told that 'Tsemeli' is another name for P.W.3 -
presumably a nickname.
I shall return to the evidence of P.W.5 in a
According to P.W.3's
evidence,prior to 1st October, 1982, accused had complained that he
(P.W.3) was in the habit of insulting him.
This was denied by P.W.3.
On the evening of 1st October, 1982, P.W.3 was at the home of one
Masitha in the village when accused also
came there. On arrival, the
accused wanted to fight him for having insulted him in the past.
P.W.3 complained about this to
3/ Masitha who advised
Masitha who advised him to
ignore the accused and go to his house. P.M.3 did.
Shortly after P.W.3 had returned
to his house, accused followed him there and on arrival said to him
"I am here, Satan you are!"
P.W.3 entered into his house.
When he came out, he asked the accused whether he was still after
him. Accused unclaspped a knife.
P.W.3 then returned into the house
and armed himself with a stick. He got out and wanted to hit the
accused with that stick. Accused
ran away and sat outside his
(P.W.3's) yard from where he (accused) showed him a knife and told
him that he would not sleep in the
house as he was going to stab him.
It was then that P.M.5 and the deceased came to his house. He
reported to them that the accused
was after him. Deceased told him
not to fight the accused. At that time P.W.3 heard accused saying he
would kill a prostitute or
words to that effect.
I must say I find difficulty
with P.W.3's evidence. When he first came to his house, accused told
him "I am here Satan you are!"
It was clear then that the
accused was in a fighting mood. P.W.3 went into his house but came
out unarmed. Only when accused unclasped
his knife did he return
into the house and armed himself with a stick. When P.M.3 went into
the house for the first time it was
already clear that the accused
was in a fighting mood. Why then didn't he arm himself with the
stick? According to P.W.3's evidence,
accused threatened him with a
knife before P.W.5 and the deceased came to his house. But the
evidence of P.W.5 was that this happened
after she and the deceased had
already come to P.W.3's house. It is, however, not disputed that the
4/ did stop
did stop P.W.3 and the accused
from fighting. That being so, it seems to me that the two men must
have threatened to fight each other
after P.W.5 and the deceased had
come to P.W.3's house. It would appear to me that P.W.3 is missing
the sequence of events on this
Accused's account of what
happened on the evening of 1st October, 1982 is slightly different.
His story is that he owned a brick field
on which he made block
bricks. P.W.3 was his employee. On a previous week, he and P.W.3 had
quarrelled over the letter's unsatisfactory
performance at the brick
field. P.W.3 then threatened to fix him up.
When on 1st October, 1982 he met
him at Masitha's,P.W.3 fought him. The fight was stopped and he
decided to leave for his house. As
he was about to go through
Masitha's gate, he heard some one shouting "Lebohang, watchout!"
P.W.3 then hit him a blow on
the head with an iron rod. Ho tried to
stab P.W.3 with a knife but the latter threw himself to the ground
and he missed him. When
he got up, P.W.3 was furious. They fought
through Masitha's gate on to the road. He was armed with a knife
while P.W.3 had a stick.
(no explanation as to what had happened to
P.W.3's iron rod). They both got tired. He then noticed the deceased
who called at P.W.
3 and told him to stop fighting him (accused). He
walked away in the company of P.W.5 and the deceased. Accused swore
he was never
at P.W. 3's house on that evening. It was at Masitha's
that he fought with P.W.3 and not at the latter's place.
I have observed the witnesses as
they testified before this Court and P.W.5 impressed me as a truthful
I am satisfied that she was testifying to the truth when she said
accused came to P.W.3's house where he threatened to
stab the latter.
On the contrary, accused did not impress me as a witness of the
truth. As will be seen in the course of this judgment,
claims to have been injured by P.W.3, accused never reported to
Masitha at whose place he was injured. On the following
attended a feast as if nothing had happened. He later surrendered
himself to the police but never thought of reporting his
that he could be sent for medical treatment. I am convinced that
accused's story that he fought with P.W.3 and got injured
Masitha's place in the manner he described was a sheer fabrication
which I have no hesitation to reject.
Now, coming back to her
evidence, P.W.5 told the court, and this was confirmed by P.W.3, that
after the accused had run to the spot
where he had been lying outside
P.W.3's yard, she and the deceased left P.W.3's place and continued
on their way to deceased's house.
As they passed next to him outside
P.W.3's yard, accused joined them. He addressed himself to P.W.5 as
"Palesa, my sister, there
is a prostitute that goes about saying 'Lebohang, Lebohang' at night.
I shall stab that prostitute
with a knife till she excretes. She is
not even born here. She is from the mountain slopes. Upon hearing a
radio, the father of that
prostitute from the mountains picked up a
stick and broke it."
P.W.5 and the deceased simply
ignored what the accused was saying and continued on their way to
deceased's house, P.W.5 did not know
whom the accused referred to as
a prostitute but being an unmarried girl she was ashamed of accused's
talk about prostitutes and
6/ not comment. ...
not comment. As they passed next
to Masilo's house in the village, accused called there and asked for
matches to light his cigarette.
P.W.5 and the deceased continued on
Accused conceded that he had
been saying ho would kill a prostitute and he was referring to the
deceased. He did not, however, know
the deceased as a prostitute. He
merely said she was a prostitute out of anger resulting from his
quarrel with P.W.3.
I fail to understand why, if he
had quarrelled with P.W.3, accused should be angry with the deceased
and libel her a prostitute particularly
so when according to the
evidence of P.W.3, P.W.5 and the accused himself it was the deceased
who had told P.W.3 not to fight the
accused. Although neither P.W.3
nor P.W.5 and, indeed, the accused himself have told the Court that
in stopping the fight, the deceased
called out accused's name, it
seems to me probable that the deceased did call out accused's name
and that was perhaps what made him
angry with the deceased.
Accused further conceded that
while he was walking with P.W.5 and the deceased, he called at the
house of his brother-in-law, Masilo,
to light a cigarette. After
lighting the cigarette, accused says he got a complete black-out and
does not remember a thing about
what happened thereafter.
According to the evidence of
P.W.5, when accused called at Masilo's, she and deceased crossed the
road on their way to deceased's
house and were walking in a passage
between two fences when accused who was then following them called at
the deceased and told her
to stop. The deceased said she was in a
hurry and did not stop. Accused then came running.
7/ When she noticed
she noticed that the deceased also started running in the direction
towards her house. P.W.5 continued in her normal walk
deceased's house and did not run. As he ran passed her, P.W.5 noticed
that the accused was holding up a knife in his left
hand. She then
apprehended that the deceased might be in danger and started
running, in the direction in which she and the accused
When the deceased was about to
enter through the gate of her premises, accused caught up with her
and immediately stabbed her with
a knife on the back. P.W.5 was about
5 paces away from them and had no difficulty in seeing what happened.
As she was stabbed on
the back, the deceased suddenly stopped and
turned back. Accused stabbed her several blows in quick succession
with the knife. P.W.5
raised the alarm by screaming loudly. Deceased
who was also crying managed to escape and enter into a neighbouring
yard of one Raphael.
Accused followed her into Raphael's yard, caught
up with and continued stabbing the deceased. One 'Mamohau called out
from a next
door yard: "Lebohang, stop doing that to another
person's wife!" Accused replied "I can leave this
come to stab you." 'Mamohau returned into her
Immediately, thereafter, P.W.5
noticed her brother Mathula Shakhane (P.W.4) appearing on the scene.
When he noticed P.M.4 approaching,
the accused stopped assaulting the
deceased and stood against a fence. P.W.4 asked her what the matter
was and P.W.5 tearfully told
him that accused was stabbing the
deceased with a knife. P.W.4 then passed on to the accused who was
still standing against the fence.
She did not notice what then
transpired between the accused and P.W.4 for she was attending to the
8/ deceased who
deceased who had by that time
collapsed and was unable to walk on her own. Deceased was pleading
with P.W.5 to assist her to her house.
P.W.5 found the deceased too
heavy for her and decided to go and ask for the assistance of her
(P.W.5's) sister in the village.
On her return P.W.5 found that a
number of grown up people had gathered around the deceased and were
assisting her. She was afraid
to go closer and stood some distance
P.M.4 testified that after sun
set on 1st October, 1982, he was at the house of one 'Mamafa in the
village when he noticed P.W.5 and
the deceased walking in the
direction towards the letter's house. Shortly thereafter, he heard a
scream of a woman from the direction
in which P.W.5 and deceased had
gone. He immediately ran in that direction and came to where the
accused was with the two women.
Both P.W.5 and the deceased were
crying while the accused was just standing against a fence holding a
knife. He confirmed P.W.5's
evidence that on asking her what the
matter was, she told him that accused was stabbing the deceased with
a knife. That was said
within the hearing of accused who did not say
anything. He then went to accused and asked him what the matter was,
told him : "I have stabbed this sister of
yours." He caught hold of the accused, presumably in an attempt
to either arrest
or disarm him of the knife. The accused pulled
himself free and managed to escape and run away. He chased the
accused, however, outran
him out of the village.
Having been outrun by the
accused, P.W.4 returned to the spot where he had left P.W.5 and the
deceased. He found many people already
deceased who was subsequently
conveyed to T.Y. hospital in a vehicle.
P.W.3 confirmed that shortly
after P.M.5 and the deceased had left his house, he heard the scream
of a woman from the direction which
the two women had taken. He also
ran in that direction and found the deceased having sustained
bleeding wounds. Many people were
already assisting the deceased. She
was subsequently taken to T.Y. hospital and he was one of the people
who accompanied the deceased
to T.Y. hospital.
The evidence of P.W.5 was also
confirmed by P.W.2, Kupa Mosobela, who testified that on the evening
of 1st October, 1982 he was at
his home in the village of Mosobela
when he heard the scream of a woman. He ran in the direction from
which the scream had come.
He came to the spot where many people were
attending to the deceased who had sustained numerous bleeding wounds
and was speechless.
He assisted in conveying the deceased to T.Y.
In their evidence, P.W.2, 3 and
4 assured the Court that no additional injuries were sustained by the
deceased whilst she was being
conveyed to T.Y. hospital. At the
hospital, they also assisted in carrying the deceased on to the
hospital bed but the deceased was
then found to be dead and they had
to carry her body to the mortuary before they could even make a
report to the police.
P.W.6, D/Tpr Seboka, confirmed
that on the evening of 1st October, 1982, he received a report
following which he proceeded to T.Y.
mortuary where he found a dead
body of a woman. The body was identified to him as that of the
deceased, 'Malikhetla Shakane,
10/ by P.W.2, 3 and 4
by P.W.2, 3 and 4. On examining
the body,he found that it had sustained multiple wounds on the head,
neck, shoulders, spinal cord
and hands. On the following day P.W.6
attended the scene of crime after which he started looking for the
accused. On 3rd October,
1982, he met the accused at the police
charge office in T.Y.
Following accused's explanation,
P.W.6 went to a certain Mokhachane Thuntsa at a place called Ha
Lebina. Mokhachane Thuntsa gave him
a brown knife (Exh.1).
Although he had given evidence
at the Preparatory Examination, Mokhachane Thuntsa was not available
to testify before this Court.
An application that his deposition at
the Preparatory Examination be admitted in evidence was opposed on
the ground that no deligent
search had been made for him. In support
of the application, the crown re-called into the witness box
P.W.6,who testified that he
was the investigating officer in this
case. When preparations were made for the trial, he was given a
subpoena to serve on Mokhachane
Thuntsa who was required as a crown
witness. He went to the house of Mokhachane Thuntsa at Lebina's. He
could not find him. The
information he received at Mokhachane
Thuntsa's home was that he had gone to Rooderpoort in Johannesburg in
the Republic of South
Africa to visit his sister, 'Mamots'elisi Mpoi.
On 27th September, 1983 and with
the assistance of the South African Police, P.W.6 went to
'Mamotselisi's home in the Republic of
South Africa. He could not
find Mokhachane Thuntsa who was alleged to have left his sister's
home some two weeks earlier to look
for employment with the
contractors in the
11/ area known as
area known as Bocksburg in the
Eastern Transvaal. His address in Bocksburg was unknown. P.W.6 had to
return home with Mokhachane.
From the evidence of P.W.6, I
took the view that a deligent search had been made to trace the
whereabouts of Mokhachane Thuntsa but
all in vain. It seemed to me
the trial could not be postponed for this witness without
considerable delays and expenses. That would
be neither in the
public interest nor the accused himself. Wherefore I granted the
application and ruled that the deposition of Mokhachane
admitted in evidence.
The deposition was read by
P.W.7, the magistrate who had recorded it at the Preparatory
Examination. It was to the effect that one
day during September or
October last year, he and accused attended a tomb unveiling ceremony
at a place called Ha Mosoeunyane when
accused lent him the knife
(Exh.1). He kept that knife until one Sunday when P.W.6 came and
demanded it. He handed it to him.
The evidence of P.W.1, Dr.
Makoa, was that on 6th October, 1982, he performed a post mortem
examination on the body of the deceased
at T,Y. mortuary. The
deceased was identified before him as 'Malikhetla Shakhano by P.W.3
and another. P.W.1's findings were perfectly
consistent with P.W.5's
evidence that the deceased had been brutally assaulted by the
accused. He found altogether eight wounds
on the body of the
deceased - on the head, neck, hand, finger, shoulders, chest and
spinal cord. Some of the wounds penetrated between
the ribs into the
lungs with the resultant internal haemorrhage. He formed the opinion
that a sharp instrument such as a knife could
have been used to
inflict the injuries on the deceased and death was due to excessive
As has been
As has been pointed out,
accused's evidence was that after he had lighted his cigarette at
Mastic's place, he got a black-out and
could, therefore, neither deny
nor admit the crown evidence as to what had happened thereafter.
After his black-out, the next thing
accused remembered was that he
found himself running late at night when P.W.4 came to him. He could
not even remember what he discussed
with P.W.4. He ran to the home of
Mokhachane Thuntsa with whom he was to attend a ceremony of the
unveiling of a tomb on the following
day. At the ceremony he had lent
his knife, Exh.1, to Mokhachane Thuntsa. He only learned from the
villagers that he had killed the
deceased and the police were looking
For fear of being assaulted by
the police, he decided not to go to his own house but to that of his
grandmother, who advised him to
hand himself over to the police.
On 3rd October, 1982 he
accordingly surrendered himself to the police at T.Y. and reported
that his knife was with Mokhachane Thuntsa.
He was subsequently
charged with the murder of the deceased. He never reported to the
police that he had sustained any injuries
in the course of his fight
with P.W.3. Accused assured the Court that he occasionally took grape
beer but had not taken any beer
at all on 1st October, 1982. He had
never suffered from any mental illness or disorder in his life.
The evidence is simply
overwhelming that the deceased was brutally assaulted by the accused
and died as a result. The only question
is whether or not the
accused had the requisite subjective intention to kill the deceased.
13/ The defence's
The defence's contention is that
at the time he assaulted the deceased, the accused was under a
black-out and docs not, therefore,
remember what happened. But on
accused's own evidence, there is no suggestion that this is
associated with any mental disorder on
his part. In other words his
black-out was simply what is commonly known as amnesia. In R.
v. Johnson 1970(2) S.A. 405 at p.406, Lewis, J. stated the
law on amnesia as follows:
" amnesia is not per
se a defence.
What it amounts to simply is
that; that the accused, if the amnesia be genuine, is a person who
cannot remember what happened. Therefore,
it is the duty of the jury
to scrutinise the crown case with particular care to make sure that
the crime has been brought home to
such a person,".
In the present case, there is
evidence that when the accused quarrelled with P.W.3 at the letter's
house, the deceased stopped them
from fighting. It seems to me that
in the process the deceased must have called out the name of the
accused, Lebohang, for on the
evidence, it was against the calling of
his name at night that the accused objected and threatened to stab
the deceased whom he admittedly
referred to as a prostitute. There is
also evidence that as he was walking with both the deceased and P.M.5
and before they reached
Masilo's house, the accused was still
brooding over his anger against the deceased who had called his name
at night. When accused
called at Masilo's house to light his
cigarette, the deceased and P.W.5 continued on their way to the
former's house. Having lighted
his cigarette, the accused followed
the two women. Notwithstanding his claim that he was then a
black-out, he clearly remembered
that it was the deceased and not
P.W.5 with whom he
14/ was annoyed
annoyed. He called out at the deceased and told
to stop. When the deceased did not comply the
unmistakenly ran after her, passed P.W.5 on the way, caught up with
the deceased and started assaulting her in the manner
P.W.5. A certain woman called at the accused and told him to stop
what ho was doing to the deceased. Accused was not
forgetful that it
was the deceased "the prostitute" who had provoked his
anger and was heard by P.W.5 replying "I
can leave this
prostitute and come to stab you". That the accused vividly
remembered that it was the deceased he was assaulting
confirmed by P.W.4, Mathula Shakhane, who told the Court that when he
came to him and asked what the matter was, the accused
boasted : "I
have stabbed this sister of yours."
In my view, the evidence clearly
depicts the accused as a person who was fully conscious of not only
what he was doing to the deceased
but also the reason why he was
doing so. There is simply no evidential basis for his contention that
at the time he assaulted the
deceased, he was in a state of amnesia.
I come to the conclusion, therefore, that the contention does not
hold water and accordingly reject it.
The accused stabbed the deceased
a total of not less than eight (8) wounds with a knife. Most of the
wounds inflicted on the deceased
were directed at the vulnerable
parts of her body. No doubt the accused was aware that such brutal
assault on the deceased was likely
to result in her death. He
nevertheless acted not only with utmost callousness but reckless of
whether or not death occurred. Considered
as a whole the evidence
leaves me with no doubt in my mind that in his brutal assault on the
deceased, the accused had
15/ at least
at least the legal intention to
kill her. In the circumstances, I have no alternative but to come to
the conclusion that the commission
of the offence against which the
accused stands charged has been established beyond reasonable doubt
and accordingly find him guilty
of murder as charged.
My assessors agree.
B.K. MOLAI JUDGE
25th October, 1983.
For Crown : Miss Moruthane, For
Defendant : Mr. Matlhare.
The accused has already been
convicted of murder. It now remains to decide whether or not there
are any factors, connected with the
commission of this crime, tending
to reduce the moral blameworthi-ness of the accused person. Section
296(2) of the Criminal Procedure and Evidence Act, 1981
"In deciding whether or not
there are any extenuating circumstances, the High Court shall take
into consideration the standards
of behaviour of an ordinary person
of the class of the community to* which the accused belongs".
The accused neither lives in
Maseru nor does he work within the precints of the High Court with
people who daily deal with questions
of law. He lives in the rural
areas under the influence of people who are not so previledged in the
knowledge of how the law functions.
There is evidence before this
Court that on the day in question, the accused had had an angry
altercation with P.W.3, Nyatso Shakhane.
In the cause of that
altercation, the deceased tried to stop the two men from fighting
each other. I have already found as a fact
that in trying to stop the
fight, the deceased must have celled the name of the accused,
Lebohang. To those of us who live in places
like Maseru, there may be
nothing offensive in hearing one's name being shouted at night. But
to people like the accused who live
in the rural areas, things may be
different. The accused may have taken offence at his name being
called out at night. This added
to the fact that the accused was
already angry as a result of his
17/ quarrel with ....
quarrel with P.W.3 may have had
effects on his mind at the time ho fatally assaulted the deceased. In
terms of S.296(2) of the Criminal Procedure and Evidence Act,
supra, this is a factor to be properly taken into
consideration in determining whether or not there are extenuating
that reason, I come to the conclusion that
extenuating circumstances do exist and the proper verdict should be
that of guilty of
murder with extenuating circumstances.
With this finding, my assessors
agree. SENTENCE : Twelve (12) years imprisonment
B.K. MOLAI JUDGE
1st November, 1983.
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