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
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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
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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
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(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,
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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
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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
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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.
