CRI/T/26/84
IN THE HIGH COURT OF LESOTHO

In the matter of :

REX

V KEMAKETSE NTABE

JUDGMENT

Delivered by the Hon. Acting Mr. Justice S. Peete on
the 29th April, 1985.

The accused is a young woman aged about 21 years

and stands charged with the murder of one Maphuthi
Phoka. The cause of death was not in dispute and due to cardio-

respiratory failure precipitated by multiple stab wounds
on the body. The autopsy report was admitted in evidence

as EX.3 and the medical report from Paray Hospital dated
15th March, 1984 was also handed in evidence.

The events that precipitated the fight between the two
women can only be sadly described as a bad result of the migratory
labour system
whereby men leave their wives to go and work in the
mines and these young wives are left behind only to be turned into
irresponsible
concubines of those who are lucky to be lazing around
the villages.

The deceased was jealously in love with one Antoni Matli
who, however, denies this fact conveniently one night say, in order
to protect
the happiness of his marriage.

/It was

-2-

It was not in dispute that friction between the two
women began on the 20th January 1984 when Antoni and his father had
called around
the home of the accused asking for food. The deceased
came to the scene and started insulting the accused and saying "Your
mother's

vagina, what is my concubine doing at your house."
The deceased was in a fighting mood but was prevented by

Antoni from fighting the accused.

It is also not in dispute that again on the 5th of March
1984 and on the 11th March 1984 the deceased again insulted the
accused and
on the latter occasion the deceased even struck the
accused with a cooking stick on

the head. This was at Mookho's house. The accused

then
went to report the insults and the assault to Mepolo

Phoka, the deceased's mother-in-law, who promised to
look into the matter. Before this could be done, it happened that on
the 12th
March the deceased when seeing the accused passing near her
house said "Hey you, why are you coming to pass near my house?
Your
head is like a scratched testicle!" Mookho however,
intervened.

Cater that day, the accused met the deceased at the cafe
of one Moahloli and asked the deceased why she had insulted her. They
were
however separated before fighting. It is not in dispute that the
accused

apparently went to lay a charge with one Thebeng
Mokuoane - the chief's representative who set the date

for hearing for the 14th March, 1984.

This was not to be because on the 13th March, the
deceased came to the house of the accused and said "Mookho says
you should
give her some firewood". She sounded

/peaceful

-3-

peaceful enough because the accused then collected her
grass ropes and proceeded where she had fallen some trees for
firewood. Somehow
the two women met at or near the field of Liphapang
Ralibuseng, P.W.6. How the fight started, this Court can only rely
upon the

evidence of the accused because when P.W.1 came to the
scene he found the accused already, on top of the

deceased end saw her stabbing the deceased repeatedly.

He heard the accused say "You say I am your mother
when you always swear at me when I pass your house." Pule

managed to separate the two women and took the knife
EX.1 from the accused. The witness also took the crying child which
the deceased
had been carrying on her back. Phamotse Maphatsoe
arrived at the scene and brought back the accused who was then a
distance away
going towards the police station. Phamotse asked for
the knife used in the stabbing. The accused took it out from beneath
the hat
she had on. It is an old shiny knife. It had no blood
stains. He later handed it over to Pule. Several villagers had now
converged
on the scene and one Mafelleng Phoka, P.W.4 deceased's
sister-in-law, even tried to fight the accused. She stated that as
caught
hold of the accused's skipper she felt and even saw a brown
okapi knife (Ex.2). She says this knife was in the bodice worn by the
accused. It had fresh blood stains. She says she shouted "Hey,
this person has a knife". This was not however heard by
the
Crown witnesses called except that Liphapang says he himself heard
this but mysteriously took no steps to recover the knife
when the
accused was changing his clothing before being escorted to the police
station. Liphapang says that on the follo­wing?
day, that is,
the 14th he picked up the brown okapi

/(Ex.2)

-4-

(Ex.2). The circumstances surrounding the role played by
this knife are surrounded with mystery and the Court has been very
cautious
in viewing the testimony of both Mafelleng and Liphapang.
Firstly no one heard Mafelleng remark about the knife (except
Liphapang).
Secondly, Liphapang only surrenders the knife to the
police only two weeks after finding it. I have decided to totally
disregard
their testimony on this aspect. The court is not going to
make a decision on whether it was proved that the accused had two
knives
on that day or whether the second knife (Ex.2) was planted at
the field of Liphapang.

This is the evidence of the Crown and is not materially
disputed by the accused except that the accused states that on the
12th March
at Moahloli's cafe, the deceased had threatened to kill
her. She stated that on the 13th she went down to gather wood for
Mookho
as requested by the deceased. She had no suspicion that this
was a trap; she wanted peace. She was shocked to see the deceased
next to her saying "Hey you, your mother's vagina, why, don't
you respond when I greet you." She had a knife (Ex.1) and
she
held her by the skipper and threw her to the ground saying "I am
killing you for having taken my concubine. Antoni builts
you a brick
house without building me any?" Accused says she struggle for
the knife and succeeded to take it from the deceased
who happened to
be older and bigger than the accused. She says God Almity gave

her the Samsonian strength. She managed to get on top
of the deceased and began stabbing her when she heard the deceased
say "Oh
I have another weapon." She says she does not
remember how many times she stabbed. She heard deceased then say
"mother,
forgive me, it is my

/fault,

-5-

fault, give me back my knife." It was then she said
"You say mother, when you keep on insulting me when I meet you".
She says Pule then came to the scene, and separated them. She says
then Pule gave back her knife when she told hid she was going
to
surrender herself to the police. When she crossed a rivulet she
washed her hands and also the knife. She says Phamotse then rode
up
to her and told her to go back to the person she had killed. She
says Phamotse lashed her with a whip and took from her the knife
(Ex.1); when she came back to where deceased lay injured, Mafelleng
rushed to her and started assaulting her. She says Mafelleng
never
said or remarked to those present that she, accused, had a knife in
her bodice. In brief in her evidence the accused was pleading
the
so-called self-defence that is, she killed the deceased in defence of
her life. The Crown on the other hand submitted that the
accused
killed the deceased intentionally and even if it was in defence
against the unlawful attack by the deceased the Crown submits
that
she exceeded all the reasonable bounds of self defence and that this
excess was immoderate regard being had to the circumstances
of the
case R. v. Krull 1959(3) S.A. 392; R. v. Detsera 1958(1) S.A. 762.
The plea of self-defence, if successfully pleaded entitled
the
accused to an acquittal. If however, depending upon the
circumstances of the particular case, the crown shows that the force
used was rather excessive, a verdict of culpable homicide must be
returned. In this case, there is no eye-witness to how the fight
between the two women started; the court has therefore torrely, if
not entirely upon the version given by the accused. Her reliability
as

/a witness

-6-

a witness then will come to the fore. The court could
not have reason to doubt the version given by the accused that the
deceased
might have waylaid her at the forest and attacked her. The
previous incidents where the deceased was the initiator of insults
confirm
" the fact that even on this last occasion the deceased,
incensed by acute jealousy, fought the accused. The number of the
wounds inflicted should not per se lead to the conclusion that the
accused had the requisite mens rea for murder. The seriousness
of
the wounds and their number are also reasonably consistent with the
conduct of someone who had completely lost self-control and
was
wildly stabbing at the attacker. It is what in deed happened in this
case. The accused was probably attacked by the deceased,
but the
accused somehow managed to disarm the deceased. But it is the
considered opinion of this Court that, while the accused may
have
been justified in defending herself, this justification ceased once
she was on top of the deceased and had already disarmed
the deceased.
The continuation of stabbing after that moment became unlawful; and
the court indeed doubts the accused's version that
the deceased said
she had another weapon. The accused could have run away once she got
on top of the deceased. But she was overcome
by anger and she lost
control of her conduct as she wildly stabbed. This Court is of the
opinion that the crown has not proved the
intention to kill beyond a
reasonable doubt as required by law but the court is convinced that
it has been proved that the accused
ought reasonably to have foreseen
that her stabbings would result in death of the deceased, the
original assailant who had however
been overpowered. The

/test

-7-

test here is objective that is did the accused act as

a reasonable man or woman could have. (R. v. Molomo,
1976 LLR. 64). I am not convinced by Miss Mamashela's contention
that all through
the episode the accused acted in self-defence. The
autopsy report Ex.A, which was not disputed, shows that the accused
inflicted
about eleven stab wounds first on the face, then on the
chest of the deceased and then on her thighs. The fatal wounds are
those
on chest because the heart and the lungs were punctured. The
accused acted rashly in a heat of passion and used unreasonable
force.
The verdict of the court therefore is that she is guilty of
culpable homicide. My learned assessor indeed agrees with this
finding..
As to the sentence I feel that the deceased was very much
largely responsible for her own death. In her raging jealousy, she
persistently
mounted a campaign of insults upon the accused and
probably, as the court has found, was the initial aggressor. But this
did not
mean that her life ought to be taken. The justice of this
case will be met by the sentence of two years, wholly suspended for a
period of three years, on condition that the accused, during that
period is not convicted of an offence involving violence to person
for which she is sentenced to an imprisonment of six months or above
without an option of a fine.

ACTING JUDGE.
29th April, 1985.

For the Crown : Mr. Seholoholo
For the Defence :
Miss Mamashela.