IN THE HIGH COURT OF LESOTHO
In the matter between:
TSOARELO JOSEPH KHADEBE
Before the Honourable the Chief Justice Mr. Justice B.P Cullinan on 15th March, 1988.
For the Crown: Mr. S. Mdhluli, Crown Attorney For the Accused Mr. N.A. Matete
Cases referred to:
R v Ndhlovu (1945) AD 369.
M'Naghter's Case (1843) 0 ER 718.
D.P.P. v Beard(1920) All E.R. 21.
Felstead v R (1914) AL 534, 10 Cr.App.Rep 129.
Burrow's Case (1823) 1 Lew, L.L.76, 14 Digest (Repl.) ( 69,319.
Rennie's Case (1825) 1 Lew. L.L., 14 Digest (Repl.)
R v Davis (1881) 14 Cox L.L 563; 14 Digest (Repl.) 70, 319.
R v Baines (1886) 14 Digest (Repl.) 70 320
S v S(1961) 4 SA 792
Attorney-General for Northern Ireland v Gallagher (1961) 3 All E.R.299.
S. v Johnson (1969) 1 SA 201 (A.D.).
Done ty's Case (1887) 16 Cox L.L. 306; 14"Digest (Repl ) 71,327.
The accused is charged with murder and also with assault with intent to do grievous bodily harm The particulars of the offences allege that on 31st May 1981, at Motimposo In the Maseru district, the accused unlawfully and intentionally killed Sentsonyane Raselemane,the first deceased) ana unlawfully assaulted Mankone Raselemane (the second deceased) with intent to do her grievous bodny harm. The accused was originally charged with the murder of the second deceased. The doctor who carried out the post mortem examination on the second deceased 13ft the country before the
Preparatory Examination. The record of the Preparatory Examination does not indicate any efforts on the part of the Police to find and produce the post-mortem report by the doctor. The Crown were thus unable to product such report at the trial. The only evidence before the Court was that the second deceased sustained injuries, on 31st May 1981, that she was admitted to hospital and subsequently died at some stage, and that her son identified her body to a doctor on 16th June 1981. Under the circumstances there was no medical evidence of the cause of death before the Court. In view of the Intervening period and the possibility of a novus actus intervening, the inference that death was caused by the injuries inflicted on 31st May 1981 was not the only reasonable inference, and the learned Crown Attorney Mr. Mdhluli very properly submitted, at the close of the prosecution case, that the charge in respect of the second deceased should be reduced to its present form.
I pause here to comment on the obvious. I regret that it is necessary to do so, as the present case is an example of maladministration of justice in our Courts, it has taken almost 7 years to briny this case before the High Court. During that period the accused escaped from custody for two periods totalling over 4 years. Nonetheless the wheels of justice have taken almost three years to turn. I observe indeed that in the majority of cases if takes at least two years and sometimes three years from the commission of the crime to the conclusion of the trial in the High Court. In the present case the record of the Preparatory Examination reveals adjournments by a number of Magistrates over a combined period of one year. The remander Indeed fill two whole pages of the typed record. The reason for such remands is invariably, "Case under investigations", or indeed no reason at all. I cannot imagine why the present case, involving five prosecution witnesses, all of whom lived within a matter of yards from one another, could take the Police a year to investigate. The actual hearing time in the Magistrates'Court was approximately 1½ days. Magistrates should simply not tolerate such delay in investigations and complaint should be made in the matter to the local Police by the senior Magistrate at the particular station, and if necessary to the Registrar of the High Court.
When the accused in the present case was finally committed, on 6th August 1984, and an indictment was expeditiously filed by the Director of Public Prosecutions on 24th August 1934, it took almost nine months to secure a date Tor hearing in the High Court, that is, on 14th May
1985, on which date the accused was reported as having escaped from custody. As far as the High Court was concerned, the accused had mean while been
in custody however, and the delay of 9 months in the High Court hearing, without even considering the release of the accused from custody, was clearly contrary
to the provisions of section 141 of the Criminal Procedure and Evidence Act 1981, and in particular subsections (1) (aa) and (2) thereof.
Again, when the accused was recaptured and brought before this Court on 24th November 1987, further delay was encountered by the fact that he was unrepresented and could not apparently offered the services of Counsel Thereafter, after adjournment, when Counsel was engaged on a pro dec basis, the Court, on the application of Counsel, ordered psychiatric examination, the trial as a result eventually commencing on 8th March, 1988 The latter application. which inevitably involves delay, might well have been anticipated If Counsel had been engaged when the accused was committed for trial Here I observe that Magistrates are simply ignoring the provisions of the Legal Aid Act 1978 I have not yet encountered a single case where a Magistrate has conducted an enquiry under section 4 of the Act as to the accused's means. Suffice it to say that it is a Magistrate's statutory duty to do so.
I turn then to the trial of this case. The accused does not contest that he assaulted both deceased, who were husband and wife, causing the death of the husband. It is his evidence however that he was voluntarily intoxicated at the time, to such an extent that he did not know what he was doing.
'Mampho Khalieli, a housewife, who at the time was 20 or 21 years of age, testified that she and her husband rented a room in a house in Motimposo from her landlady Sylvia Pillay, who resided in an adjoining room with her mother, Sylvia's father residing in a further adjoining room. The accused and his aunt resided nearby in another house.
On the 31st May 1981, Mampho's husband was then across in the Republic of South Africa. That night she had retired to bed with her 3 month old child, when at about 9 p.m she heard the accused's voice calling the dogs. Then she heard a woman's voice passing her window crying out, "Oh dear me, Oh my mother. I am dying". It was then that the accused knocked violently on her door, calling out her name loudly, sayinq there were people causing damage on her vehicle parked outside In the yard. She opened the door whereupon the accused entered, dragging a woman along the ground with one hand. He then let go of the woman, lying prone on the floor, and reversing the shovel, commenced
to beat her with the handle thereof. He struck the woman on the eyes, then on the abdomen, then stretching her legs he struck her between the leys, During all this the woman lay prone without crying out or making any sound at all. Meanwhile 'Mampho had left her room and had started calling out for her landlady Sylvia. During this the accused desisted and went out towards the street,
'Mampho returned to her room and started banging on the wall, trying to attract the attention of Sylvia in the adjoining room. The accused then returned, "coming angrily" as she put it, pulling or dragging a man along the ground down the sloping terrain from the direction of the street. He "put"* the man, apparently inert, on the stoep outside 'Mampho's room and commenced boating him with the shovel, this time holding the shovel by the handle thereof. 'Mampho testified that the accused used "different movements". "At times", she said, "it was as if he was digging. He was changing It (the shovel blade) from one side to the other". She went to get Sylvia's aid. When she returned with Sylvia the accused was still assaulting the man on the stoep, but he desisted on their arrival and turned his attention towards Sylvia, chasing her back into her bedroom 'Mampho then left to secure the assistance of Nco Thekiso who lived nearby.
Sylvia Pillay,who put the time at between 10 p.m. and 10.30 p.m. testified that she fled back into her house and locked the door The accused struck the door with the shovel, kicked it, using abusive language, and eventually forced the door open, entering her room There he threatened her, saying to her mother, "You old lady, I have killed two people in your yard. I am now coming to kill your daughter so that they can all He outside dead" It was at this stags that Neo Thekiso and his two sons Moalosi and Moeketsi, alerted by 'Mampho, arrived on the scene. Their depositions In the Court below were formally admitted by the defence. All three found the accused in Sylvia's room Moalosi testified that he was "scolding" the two ladies. "He was not carrying anything'", the witness, said. Moeketsi made no reference to any weapon. Neo however testified that the
"accused was inside (the room) and facing them Sylvia and her mother). There was light in the house. I took accused out of the room by force. He was carrying a spade ....... The spade remained in the house".
And further on,
"When ho was in Sylvy's room accused was saying he'd kill Sylvy like chose others. The spade which accused carried In Sylvy's room Is the shovel before the Court".
The latter sentence was corroborated by Tpr. Sekhonyana, who was called to the scene and found the shovel "in the house of the Indian lady",
Neo Thekiso testified that when he first arrived on the scene the first deceased was "lying prostrate at the door. He was bloody. He was groaning heavily at the time. The second deceased had blood on her head. None of the other witnesses observed blood, but she was unconcious, with her face swollen, according to Tpr. Sekhonyana, and breathing heavily according to 'Mampho, who also testified that her eyes were protruding
Meanwhile Neo Thekiso and his two sons were all agreed that they "caught hold" of the accused in Sylvia's room and took him to the Chief's representative returning to the scene with the latter and the accused and two others. Neo Thekiso found that the first deceased had passed away.
The accused ran away at that stage chase was given but he was not caught. He remained at large until 10th June, 1981.
A post mortem examination was conducted on 4th June, 1981 on the first deceased, whose age was estimated by the doctor to be 57 years. There were four wounds on the head with a fracture of the skull and a bilateral fracture of the lower jaw, with the 3rd, 4th and 5th ribs fractured on both sides of the chest. The doctor opined that death had been caused, four days earlier by intracranial haemorrhage. Suffice it to say that I am satisfied that such death
The accused testified that he was born in 1962, he was thus aged 18 to 19 years when these events took place. He had worked as a wine waiter in a hotel in 1978, but was out of work on 31st May, 1981. He resided with his maternal grandmother and his aunt, being the product of a broken home, his parents having parted before ho had reached the age of twelve years.
He recalled that on 31st May his friends had invited him to drink at a place where home-made beer was being brewed. He had been a heavy drinker at one stage but had not drunk for one year at the time. He and his friends commenced drinking at 10 a.m. They drank a mixture of homemade beer, other brews and brandy. They finished drinking very late in the evening. He could not recall leaving that place. He recalled however that
"one boy by name of Kuena" and others accused him of having drunk more than his share. They produced knives so he took to his heels. "I then ran to Mampho's home" he said, but not before one of his assallants had struck him on the face with an object.
After he reached Mampho's home "I can't remember what happened," he said. He "went to 'Mampho to tell her there were people assaulting me When he got to her door he heard the dogs barking. When he looked back he saw people standing at the gate. He didn't know them,, It was dark. There were two people, men or women ho could not say. His evidence continues
"What I remember is that when 'Mampho opened to me I had already assaulted those people outside."
He recalled that the shovel In question was in a heap of sand In the yard. "I hadn't quarrelled with these people", he said. "I surely don't know why I assaulted them". He recalled that subsequently when he heard "one of the people ' Mampho had called saying one of the persons was dead" he became frightened and ran away.
The Court, as I said earlier, ordered phychiatric examination. The report of the psychiatrist Dr. L.M. Mohapeloa, Director of Mental Health Services, reads as follows:
REX VS. TS'OARELO KHADEBE. CR. 591/81
This is to certify that I have examined the accused, Ts'oarelo Joseph Khadebe I first examined him on January, 1988 at Queen Elizabeth II Hospital, Maseru, and again on January 26th, 1988 at Mohlomi Hospital. In addition I studied the P.E. Record
On examination I found the accused calm, quiet and quite rational. I did not elicit any signs of mental abnormality whatsoever He claimed that he had suffered from mental illness in childhood, stating that he had been told this by relatives. I did not find any residual signs of such an Illness.
The accused further stated that he had been drinking heavily on the day of the alleged offence. His memory of the events of that day Is patchy, and he has also suffered alcoholic black-outs in the past. He quarreled with some of his drinking companions on the day In question. He does not recall having quarreled with either of the deceased who he says were strangers to him.
In my opinion, the accused was and Is not insane. It could be said, however that both his judgement and responsibility were probably impared due to alcoholic intoxication.
L.M. MOHAPELOA (DR)
MB., Ch.B., (Natal) D.P.M. (Eng) F. Psych (Vienna).
DIRECTOR OF MENTAL HEALTH SERVICES.
5th February, 1988"
As a result of such report 1 had found the accused fit to plead and had commenced the trial. Dr. Mohapeloa attended the trial and sat In Court during the evidence of 'Mampho. His evidence in chief coincided with his report, namely that the accused "was not Insane at the time and is not insane now" "It could be said that his judgment was impaired by alcohol," he added. Having heard the evidence of ,'Mampho however he observed that "She surprised me it seemed that she had almost read my mind. He may certainly not have been aware of what was happening due to being drunk". When asked by the learned defence Counsel Mr. Matete whether the accused had had an alcoholic blackout, he replied "I would say he had a partial alcoholic blackout". When questioned by the Court in the matter Dr. Mohapeloa testified that,
"It is consistent with my findings that he just didn't know what he was doing. Otherwise he is perfectly normal."
Again, when further questioned by Mr. Mdhluli with leave of the Court, Dr. Mohapeloa stated that
"As a result of alcoholic intake he was temporarily legally Insane, either he didn't know what he was doing or he didn't know what he was doing was wrong."
It may be that the evidence of 'Mampho to some extent influenced the psychiatrist's evidence. Dr. Mohapeloa did not however have the benefit of hearing the other witnesses" evidence and in particular that of the accused. Mampho testified that the accused spoke "as if he was rather stammering". Her evidence continues,
"He spoke many different things, people were damaging the vehicle, and then they were bewitching him and then he saw them on top of the Combi" (a scrap vehicle in the yard).
She testified that the accused asked her to come closer to inspect his face and to see what "those people" had done to him. She observed a "little swelling' on the right side of his face. She observed that
"He appeared as though he had taken some liquor . He was very angry because he said he was going to shoot those persons, who were already dead ..... His movements were brisk: he was fast. As he was very fast I didn't observe to see whether he was unsteady. It was dark. I didn't see him fall down. According to my observations 1 thought he was not aware of what he was saying. I say this because he said things which were different to what I expected him to say as to what these people had done to him - things I couldn't reconcile."
In cross-examination 'Mampho added that she would not say that the accused was very drunk that night "as he was not staggering". Sylvia Pillay observed that the accused appeared normal, that is, apart from his behaviour. None of the other three prosecution witnesses testified at the Preparatory Examination as to the accused's condition. En route to the Chief's representative the accused admitted having "killed" the deceased persons. Neo Thekiso in particular asked the accused "what the matter was", "but he did not reply', he said "He was angry with the people," he added.
As for the accused, he further testified that he thought the two deceased were his attackers, one of whom had struck him in the face, not with a fist but with a certain object". He remembered picking up the shovel, that is, from the sand heap. He remembered going to the people at the gate. "I assaulted them", he said His evidence continues
"I think I asked them who they were. When they didn't respond I took it they should be the attackers. I I do remember that I did assault them, but not clearly".
The accused could not remember whom he assaulted first. He failed to understand why he had assaulted the two deceased and could not remember assaulting them separately. He added:
"I wasn't aware I was doing anything wrong. I remember I assaulted them with a spade. Now I remember if was wrong. Then I didn't realise It was wrong."
It will be seen that the accused's subsequent evidence was more detailed than his evidence in chief His evidence of heavy drinking over a period of some twelve hours is difficult to reconcile with his actions at the scene of the crime, where his movements were described as "brisk" and "very fast" by the witness most favourable to him. He remembers all that happened right up to the moment of assault, the heavy drinking, the "boy by name of Kuena", the production of knives, the flight not to his home but "to 'Mampho's home", and being struck In the face "with a certain object" before reaching 'Mampho's home He recalls the dogs barking, the people at the gate, picking up the shovel from the heap of sand,approaching and speaking to the strangers and then assaulting them. He does not enlarge thereon however and supplies no details of any subsequent transaction, not even the entry into Sylvia's room, which he does not recall, until his escape from custody In this respect I observe that on allegedly heavily drunk accused was capable of escaping not alone from equally drunk pursuers, but subsequently from six others apparently sober, two of them Moalosi and Moeketsi Thekiso aged no mercy than 24 and 21 years.
It seems to me that the accused's actions in dragging the second deceased into 'Mampho's room and there further assaulting her was quite deliberate This is emphasised by the act of reversing the shovel and then again by the deliberate manner of assault on three areas of the body. Again there is the action of dragging the first deceased apparently already disabled, down from the street, that is, outside the gate, down onto the stoep outside 'Mampoe room, where presumably he might further assault him without interruption Again there is the aspect of assault on the vital areas of the body, the head and chest, this time with the blade of the shovel.
Then there is the diversion concerning Sylvia and her pursuit. It is her evidence, corroborated by that of Neo Thekiso, that the accused threatened to kill her as he had "killed" the others, indicating his awareness that he had assaulted the two deceased. Such awareness is again evident in his stat -ment to Neo Thekiso and his sons that he had "killed" the two deceased.
There is the aspect also that the accused was selective as to whom he attacked It is to 'Mampho's home that he fled and not his own home
Throughout the entire transaction it seems that the 21 year old young mother woman was never in danger, whereas the 41 year old spinster Sylvia, who frankly testified that she disliked the accused, was clearly an object on when ha could venge his feelings. 'Mampho's evidence was undoubtedly favourable to the accused in her description of his rendition His claim that people were damaging her vehicle may well have been a ruse by the accused to secure the opening of her door late at night. The reference to people 'on the Combi" and to being bewitched, may well be on embellishment by her, the accused not having advanced any such aspect. Certainly, I find it difficult to conceive the accused's invitation to her to inspect his face, while he was busily engaged in the horror of the assault on the elderly second deceased, and while 'Mampho, no doubt terrified, had left her room and was shouting for Sylvia's assistance. Whatever 'Mampho may say as to whether or not the accused was aware of what he was doing, the point is that the accused's own evidence indicates that he was so aware. The onus is on the accused in the matter (R v Ndhlovu (1) at pp.386/38/) when it comes to pleading insanity, temporary or otherwise, as that is the effect of the accused's evidence. Suffice it to say that I am not satisfied that the accused probably did not know what he was doing.
In any event, the defence of insanity, temporary or otherwise, only arises from "a defect of reason, from disease of the mind" (M'Naghter's Case (2) at p.722). The following passages from the opinion or the house of Lords read by Lord Birkenhead L.C. after a review of the authorities in the celebrated case of DPP v Baard (3) at pp.28/29 illustrates the point
"The conclusions to be drawn from these cases may be stated under three heads, (I) That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged The distinction between the defence of insanity in the true sense caused by excessive drinking, and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention has been preserved throughout the cases. The insane person cannot be convicted of a crime (Felstead v. R. (4), but, upon a verdict of insanity, is ordered to be detained during His Majesty's pleasure. The law takes no note of the cause of insanity. If actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a crimimal charge as insanity Induced by any other cause. In the early cases of Burrows (5) and Rennie (6), Holroyd, 1, refused to regard drunkenness as an excuse unless it had Induced a continuing and lasting condition of insanity. Put in R. v Davis (7), where the prisoner was charged with wounding with intent to murder, Stephen, J., thought (and 7 agree with him) that insanity, even though temporary, was on
answer. The defence was that the prisoner was of unsource mind at the time of the commission of the act, and the evidence established that he was suffering from delirium tremens assulting from over-indulgence in drink. STEPHEN, J, said
"But drunkenness is one thing and the diseases to which drunkenness leads are different things, ana If a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible In my opinion, in such a case the man is a mad-inor and is to be treated as such, although his madness is only temporary ... If you think there was a distinct disease caused by drinking, but differing from drunkenness and that by reason trereof he did not know that the act was wrong you will find a verdict of Not Guilty on the ground of insanity."
To the same effect is a decision of DAY, J., in R v Barnes (8) (TAYLOR'S MEDICAL JURISPRUDENCE (6th Edn.),vol.l p. 898) The defence was that the prisoner was insane when the murder was committed. The evidence proved that the prisoner and on several occasions been under treatment for delirium tremens He had one attack a week before, and another two days after, committing the crime, DAY, J., held that it was immaterial whether the insanity was permanent or temporary. The question was whether there was insanity or not and the learned judge ruled that If a man were in such a state of intoxication that he did not know the nature of his art or that his set was wrongful, his act would be excusable on the ground of insanity. (ii) That the evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved In order to determine whether or not he had this intent. (ill) That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by dunk so that he more readily gave way to some violenc passion does not rebut the presumption that a man intends the natural consequences of his acts."
There is no evidence before me of any disease of the accused's mind. Indeed Dr. Mohapeloa's evidence and report stresses that the accused suffers from no mental disease. That being so, the defence of insanity is not available to the accused. As to whether or not the accuses knew that he was doing wrong, such question is again relevant only to the defence of insanity - D.P.P. v Beard
at pp. 30/31 and S v S (9) at p. 795
Nonetheless, intoxication is available as a defence to the accused if he was so drunk as to be incapable of forming the specific inter,;-necessary, for examine in murder, or assault with intent to do grievous bodily harm. in Beard (3) Lord Birkenhead L.C., observed at p.28 that,
".... in law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect or reducing the crime from murder to manslaughter."
Lord Denning referred to those dicta in the House of Lords case of Attorney General for Northern Ireland v Gallagher (10) at p. 313 The "specific intent" rule has been imported into the law of South Africa. It is the subject of some criticism In the work on South African Criminal Law & Procedure by Burchell & Hunt (First Edition) Vol. 1 at pp. 231/234, that is, where the accused is ultimalely convicted of a reduced offence, such as culpable homicide, in which no specific intent is involved and where drunkenness is no defence see S v Johnson (11). Nonetheless the law in England and in South Africa on the point is plain and has been so since the case of R v Doherty (12, decided a century ago.
In the present case the two crimes can only be described as senseless end brutal It Is difficult to appreciate how the accused could have mistaken the two elderly deceased for his attackers. Clearly such mistake was not reasonable and went completely beyond the bounds of any imagined self-defence. It may be that he was in fact 'n full control of all his faculties and, his passions inflamed by alcohol wished merely to even he his injured feelings on the nearest and most helpless object available. In the least there must be some doubt about this however Further, there is Dr. Mohapeloa's evidence and report that the accused's judgment was probably Impaired by intoxication. At the end of the day the very fact that the accused attacked two complete strangers, without any understandable motive, points to the fact that
in the least his mind was confused by intoxication.
Suffice it to say therefore that, while I am satisfied that the accused appreciated that he was assaulting the two deceased I am in reasonable doubt as to whether or not he was capable of foning the specific Intern necessary in both offences charged.
The assessors agree with my findings. I therefore acquit the accused of both chances charged but find him guilty of culpable homicide and common assault under counts 1 and 2 respectively and convict him accordingly.
Delivered at Maseru this
15th day of March 1988
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law