CRI/T/18/86IN THE HIGH
COURT OF LESOTHO
In the matter of :
Delivered by the Hon. Mr. Justice B.K. Molai on the
23rd day of June, 1987.
The accused is before me on a charge of murdering one
'Mamosa Matobo, it being alleged that on or about 27th May, 1985 and
at or near
Majakaneng in the district of Mafeteng he unlawfully and
intentionally killed the deceased.
During the course of the trial, Mr. Monyako who
represents the accused, told the court that the defence would not
dispute' the depositions of 'Makutlenyane Malobe, Dr. S.W.
D/Tpr Ntlama and Dr. Agyei who were respectively P.W. 2,6,8 and
10 at the proceedings of the Pre-paratory Examination.
Moruthoane for the crown accepted the admissions made by the
defence with the exception of the deposition of D/Tpr Ntlama whom she
calling into the witness box to clarify a few things.
In terms of the provisions of S. 273 of the Criminal
Procedure and Evidence Act, 1981 the depositions of
P.W.2, 6 and 10 at the proceedings of the Preparatory Examination
were accordingly accepted as evidence and it
therefore,to call the deponents as witnesses in this trial.
Briefly the evidence heard by the court was that adduced
by P.W.7, D/Sgt Monyane who testified that on 6th July, 1985 (it
read 6th June, 1985) he received a
report following which he proceeded to a certain house
in the village of Mahloenyeng where he found the dead body of the
On examining it he found that the body had multiple
injuries on the head, above the left ear. on the forehead and on the
of the neck. The injuries were not fresh although not
completely healed. He conveyed the body in a Government vehicle to
in Morija where a post mortem examination was
conducted. No additional injuries were sustained by the body whilst
it was being transported
from Mahloenyeng to the hospital.
According to Dr. Moore he was the medical doctor who, on
8th June, 1985, had performed the autopsy on the body of the
body was identified before him by one Mosa Matobo,
who,was, however, not called as a witness in this trial. The
the following findings : 8cm open wound on top
of the head, 2 lacerations on the left side of the frontal area of
the skulp and a
bruise above the left ear. Although there was no
fracture of the skull there were signs of slight bleeding into the
brain. In. the
opinion of Dr. Moore a blunt instrument had been used
to inflict the injuries and death was due to head injuries. It was
that shock resulting from the injuries and other
natural causes relating to her old age had contributed to the
Assuming the correctness of Dr. Moore's evidence
thatthe deceased died as a result of the injuries inflicted
uponher, the question is who had caused those injuries and
therefore brought about her death. In this regard the
courtheard evidence that the deceased, an elderly woman of about
91years of age lived in the same house with her
daughter-in-law,'Mamatobo Matobo and Mothepu Matobo, the younger
brother ofthe accused.
The house itself was a six roomed-house, four bedrooms,
a kitchen and a living room. Mamatobo Matobo and two children
one of the bedrooms. The other two bedrooms were each used
by Mothepu Matobo and the deceased respectively. The accused himself
with one of the relatives in the same village.
3/ On the
On the evening of 27th May, 1985, the accused called at
the deceased's home where he found his younger brother, Mothepu
in bed. He decided to spend the night with him. They were
on that night both sleeping in the same
bed when, according to Mothepu Matobo, the accused
suddenly delivered a blow on him with a strainer which he had taken
from the wall
where it was hanging. Mothepu Matobo warded off the
blow with his hands and jumped out of the bed. When he asked him why
he was assaulting
him, the accused,who was clearly in a fighting
mood, asked whether he did not see the "Lithokolpsi" coming
to him (accused).
Mothepu ran out of the room and went to the room in
which 'Mamatobo was sleeping. He was unable to open the door of that
so ran out of the house.
'Mamatobo Matobo gave evidence on oath and told the
court that on the night in question she and two children, Mphu and
were sleeping in their bedroom when she noticed that the
accused was in their room. She asked him what the matter was and the
replied that witches were surrounding him. She told him
that there were no witches in the house and he should go to bed. The
accused then started screaming and making a lot of noise.
Sensing that there was something mentally wrong with the
accused, 'Mamatobo rushed out of the house to seek assistance from
The two children who had been sleeping with her followed
'Mamatobo out of the house. Outside the house 'Mamatobo and the two
were joined by Mothepu Matobo who had been standing outside
the kitchen door. They all ran to the home of one Motsoane to ask
help. Motsoane was, however, not in. As they left Motsoane's
place, 'Mamatobo and Mothepu heard the accused's voice shouting down
the village. They then returned to their house.
On arrival at the house, they noticed that there was no
light in the deceased's room which was always lit 3t night. As they
into the house. the deceased who was the accused's
grandmother pleaded with 'Mamatobo to put on the light for the
accused had killed
her. 'Mamatobo. did put on the light and
found that the deceased had injuries on the
4/ head and
head and the body. Her head and night dresses were
covered with blood. There were also blood stains on the walls- She
went to report to the chief whom she found at the home of
one Thelingoane where there was a night virgil. The accused who was
trouble and noisy at the night virgil was caught hold of and
fastened by men.
The evidence of 'Mamatobo that the accused was
troublesome at the night virgil was confirmed by Taolana Kokami,
and Mahlomola Matobo, three of the village men who
attended the night virgil on the night in question. According to them
arrived at the night virgil. the accused was very
violent and wielding a stick with
which he started beating up people indiscriminately. In an
attempt to disarm him, Taolana Kokami caught hold of the,accused who,
stabbed him with a knife. The accused then boasted: "Taola
li laola bakoena, ke bolaile nkhono". (loosely translated :
"divining bones point to bakoena, I killed my grandmother").
Although he did not understand what the accused meant by
lia laola bakoena. Ke bolaile nkhono" Taolana Kokami told the
court that he knew that the accused belonged to the
clan of bakoena.
Mohoba Pitso and Mahlomola Matobo confirmed that the
accused was ultimateJy overpowered and fastened by the
village men after which he was escorted to Ben's place where he
normally slept. 'Mamosa Matobo together with the Chief Mokhitli and
the village men then went to the deceased who was on the same night
transported in a vehicle to the Government hospital at Mafeteng.
On the following day, 28th May, 1985, the accused was
also escorted to the hospital by Mahlomola Matobo. At. the hospital
was directed to take the accused to the mental health unit
of the hospital where he started asaulting people. He was given an
and allowed to return home. On the way, the accused became
very drawsy and Mahlomola had to carry him in a wheelbarrow.
Dr. Agyei confirmed that on 28th May, 1985, the deceased
was referred to him at Mafeteng Government hospital. On examining her
found that the deceased had multiple stab
5/ wounds on
wounds on the sculp and upper trunk. The wounds were
relatively deep and those on the sculp reached the bone. He
opinion that the wounds had been inflicted by the use of a
sharp instrument and considerable degree of force was applied. The
had to be stitched and the patient was admitted until 6th
June, 1985 when she was discharged in a stable condition.
It is significant to observe that while Dr. Agyei says
the injuries on the deceased were; inflicted with a sharp instrument
Dr. Moore's evidence is that they were inflicted by the use of a
blunt instrument. The evidence of the two doctbrs has, therefore,
discrepancy on this point. It must however, be borne in mind that at
the time Dr. Agyei examined her, the deceased was still alive
injuries fresh. On the other hand the deceased was already dead and
the injuries stitched at the time Dr. Moore examined
her. For this
reason, it seems to me, Dr. Agyei was in a better position than Dr.
Moore to see the nature of the injuries and determine
the type of
instrument used to inflict them. I am inclined, therefore, to accept
as the truth Dr. Agyei's version to that of Dr.
Moore on this point.
Returning to her evidence. 'Mamatobo testified that when
the deceased was discharged from the hospital on 6th June, 1985, she
and her husband, Mosa Matobo, conveyed her in a vehicle
to the home of her ('Mamatobo's) sister-in-law at Mahloenyeng in the
of Matsieng. They left the deceased together with her medicines
from the Mafeteng hospital in the hands of the sister-in-law to whom
the instructions on how to administer the medicines were explained.
On the same day, 6th June, 1985, 'Mamatobo and her husband returned
to their home at Majakaneng.
The evidence of 'Makutlenyane Malobe was that her home
is in the area of Mazenod. In June 1985 she was on a visit at
where she was assisting 'Mamatobo's sister-in-law to
harvest her crops. She confirmed that on 6th June, 1985 the deceased
to the home of 'Mamatobo's sister-in-law at Mahloenyeng.
She and 'Mamatobo's sister-in-law slept in the same house with the
night she was brought to Mahloenyeng. At about dawn on
that night they wanted to assist the deceased so that she could
sleeping position. They, however, found that the deceased
had already passed away.
D/Tpr Ntlama told the court that on 11th June, 1985 he
received a report following which he proceeded to the home of
accused. He met
and question the accused about the death of the
deceased. Although he was not coherent in what he said, the accused's
reply was that
he did not know anything about the deceased's death.
On the basis of information received during his investigations, the
Trooper nonetheless cautioned, arrested and charged the
accused as aforesaid.
The accused himself gave evidence on oath and told the
court that he did not know anything about the events of 27th May,
he remembered was that in the afternoon of that day he was
returning home from the velt when he felt that he was suffering from
headache. He called at the home of one 'Ma-Alina to ask for a snuff
to inhale so that he could sneez. When 'Ma-Alina said she had
snuff, a certain Phiri who claimed to be a Sesotho doctor or
herbalist offered him some powdered medicine which he said would
the headache. Immediately after inhaling that medicine, the accused
started sneezing and lost his senses. He regained his senses
Sunday following the 27th May, 1985 when he realised that he had been
assaulted and injured. He later learned that the deceased,
grandmother, had died as a result of the, injuries he had allegedly
inflicted upon her. He loved the deceased very much and felt
very sorry for her death.
Although there is no direct evidence that the accused
assaulted and injured the deceased, there is ample evidence
indicating that on the night in question he behaved in so
belligerent a manner that Mothepu and 'Mamatobo had to run out of.
leaving him alone with the deceased. Soon after the accused
had left the house, the deceased was found brutally assaulted and
that the accused had killed her. There is also
evidence that when he left the deceased's house, the accused went to
the home of one Thelingoane
7/ where there
where there was a night virgil. Oh arrival at the night
virgil he was violent and started assaulting people indiscriminately
apparent reason. There is. in my opinion, sufficient
circumstantial evidence indicating that the accused is the person who
and injure the deceased on the night of 27th May, 1985.
Although the defence did not raise a plea of insanity
and the accused appeared quite sane before the court, I was, on the
somewhat disturbed about his mental state.
I accordingly issued an order referring him for
observation by a psychiatrist. In this regard
Dr. Mohapeloa, the Director-of Mental Health Services testified that
he was the psychiatris who examined the accused, read
made by various witnesses at the Preparatory Examinations and
interviewed some of his relatives. In his opinion,
the accused is
quite fit to stand trial. Oh the other hand the accused's actions at
the material time are consistent with those
of a person in a state of
diminished responsibility due to an isolated acute psychotic episode
(i.e. insanity) and the episode lasted
for several days.
I have no good reason to doubt the evidence of Dr.
Mohapeloa that although the accused has no signs of mental illness
and is now fit
to stand trial, he was, at the time he assaulted and
injured the deceased, suffering from insanity.
The next question for the determination of the court is
whether or not the deceased died as a result of the injuries
her by the accused. It is to be remembered that after
she had been assaulted and injured, the deceased was taken to
hospital where she received medical treatment.
According to Dr. Agyei, when on 6th June, 1985 she was discharged
from the hospital,
the deceased was in a stable condition.
Although some medicines were handed to 'Mamatobo with
instructions on how to administer them on the deceased, 'Mamatobo
medicines and the instructions to her sister-in-law who
was, however, not called as a witness
8/ in this
in this trial. We do not therefore, know what medicines
they were nor do we know how they were administered on the deceased.
that death could have been precipitated by the
medicines or the manner in when they were administered on the
deceased remains a real
one. There is, therefore, a doubt whether or
not actus novus interviniens exists in this case. The benefit
of such a doubt is, in our law, always given to the accused person.
That being so, the question
I have earlier posted viz. whether or not
the deceased died as a result of the injuries inflicted upon her by
the accused must, be
answered in the negative.
From the foregoing, it stands to reason that the view
that I take is that the accused can at the most be convicted of
intent to do grievious bodily harm. As he was insane at
the time he assaulted and injured the deceased the proper verdict
be "guilty of assault with intent to do grieveous bodily
harm but insane at the time he commited the act" He is
In the circumstances. I have no alternative but to order
that the accused be sent to prison pending the signification of
Majesty the King.
My assessor agrees.
JUDGE 23rd June,,1987.
For Crown : Miss Moruthane, For Defence: Mr.
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