IN THE HIGH COURT OF LESOTHO In the matter of
Delivered by the Hon. Mr. Justice B.K. Molai on the
3rd day of May, 1989.
The accused is before me on a charge of murder, it being
alleged that on or about 6th April, 1987 and at or near Ha Semione in
district of Maseru he unlawfully and intentionally killed the
deceased, Motsoari Boraka. He has pleaded not guilty to the charge.
It is perhaps convenient to mention at this stage thatMr. Maqutu, counsel for the defence, admitted the depositions
of Lefa Mohlakoana, Polao Lebajoa, Nkoai Nkhahle, Liphakana Peiso,
Dr. Tlale and D/Sgt Tsehlo who were P.W.1, P.W.3, P.W.4,
P.W.6, P.W.7, P.W.8 and P.W,9 at the proceedings of the Preparatory
Examination.Miss Moruthoane counsel for the crown, accepted
the admissions. In terms of the provisions of S.273 of the Criminal
Procedure and Evidence Act, 1981 the depositions of P.W.1, 3, 4,
6, 7, 8 and 9 at the Preparatory Examination proceedings .
2/ are accepted .....
are accepted in evidence and it has, therefore, become
unnecessary to call the deponents as witnesses in this trial.
In as far as it is relevant the evidence of D/Sgt
Ts'ehlo is that on 8th April, 1987 he received information following
which he proceeded
to Ha Semione in the district of Maseru. He was
taken to a spot next to the river where he found the dead body of the
examined the body for injuries and noticed three open
wounds on the head. He conveyed the body to the mortuary at Queen
II hospital. It sustained no further injuries whilst it was
being transported from Ha Semione to the mortuary.
On 9th April, 1987, Dr. Tlale performed an autopsy on a
dead body of a male African adult. The body was identified as that of
deceased by Goorge Mosiki and Lefa Mohlakoana. This was confirmed
by Lefa Mohlakoana who was P.W. 1 at the Preparatory Examination
proceedings. The medical examination revealed that the deceased has
sustained three open wounds on the head i.e. a wound on the left
of the forehead, a wound on the right side of the forehead and a
wound on the left temporal region of the head. The temporal
frontal bones on the left side of the head were shattered with the
result that brain tissues were damaged. In the opinion of
doctor death was due to the head injuries and an instrument such as
an iron rod could have been used to inflict the injuries.
I can think of no good reasons why in the circumstances,
the opinion of the medical doctor that the deceased died as a result
head injuries should be doubted. That being so, the next
3/ question for
question for the determination of the court is Whether
or not the accused is the person who has inflicted injuries upon the
and therefore brought about his death.
In this regard the court heard the evidence of P.W.2,
Tebalo lebajoa, who testified that in the morning of 6th April, 1987
his wife to a bus stop next to accused's house. The
wife was going for medical treatment at Roma hospital. After his wife
a bus on her way to the hospital P.W.2 went to the house
of accused. He wanted to inform the accused, who is his relative,
the health of his (P.W.2's) wife.
On arrival at his house P.W.2 found the accused still in
bed. When he inquired why he was still in bed at that time of the day
accused told P.W.2 that he had had a sleepless night because of
lightning. Shortly after P.W.2 had left the accused's home, the
called him back and showed him one of his horses.
The horse was dead and appeared to have been struck by
lightning as it had some burns. On his request P.W.2 helped the
skin the dead horse. They were assisted by Polao Lebajoa
and Nkoai Nkhahle. This is confirmed by Polao Lebajoa according to
one Molumo also took part in the skinning of the horse.
According to the evidence of Polao Lebajoa and P.W.2
after the horse had been skinned the accused invited all the people
who had assisted
him to a beer house belonging to one 'Matieho
Lebajoa who is in fact the mother of P.W.2 and P.W.I, 'Masaene Setai.
When they came
to the house of 'Matieho Lebajoa P.W.2 and his party
found many people including P.W.1 who was the person selling the
took their seats inside the house and P.W.1 served them
4/ In her.....
In her evidence P.W.1 told the court that the accused,
who is her relative, appeared somewhat disturbed and had not yet
the beer she had served to him and his party when the
deceased knocked at the door and said "koko".
The deceased then entered into the house and was carrying a small
Just as the deceased appeared at the door of the
house,P.W.1 noticed the accused standing up from his seat. Without
uttering a word
the accused hit the deceased two blows on the head
with an iron rod. The deceased fell on the floor. As the deceased
fell to the
floor P.W.2 and Nkoai Nkhahle intervened by holding the
accused and asking him what he was doing. The accused was taken out
house by P.W.2, who ordered him to leave the place and go to
Whilst Nkoai Nkhahle and Polao Lebajoa were assisting
the deceased to a sitting position P.W.I went out of the house. On
into the house she noticed the deceased picking up his hat
and going away. As the deceased walked away his hat dropped down
The evidence of P.W.I is, in all material respect,
corroborated by that of P.W.2, Polao Lebajoa, Nkoai Nkhahle
and LiphakanaPeiso. In his evidence Nkoai Nkhahle testified that
deceased had been assisted in the house, he tried to
pursuade him to rest a little before going to see a doctor but all to
deceased insisted that he was going home and left the beer house.
Nkoai Nkhahle who is the headman in the village accompanied
deceased for some distance. Having satisfied himself that the the
deceased was able to walk properly the headman returned to
- 5 -
Shortly, therefafter an alarm was raised and as a result
thereof P.W.1 went out of the beer house. She noticed the deceased
down on the mountain slope across a nearby river. The accused
was walking away from him. However, P.W.6 testified that at the time
he went out of the beer house as a result of the alarm he actually
saw the accused delivering at least two blows on the deceased
already lying on the ground across the river.
According to the evidence of P.W.I, P.W.2 and Liphakana
Peiso the accused returned to the beer house and told Nkoai Nkhahle,
that he had killed the deceased. This is confirmed by
the headman who testified that he then detailed Liphakana Peiso to go
the incident to the chief of the area, one Michael
Ramashamole whilst he (headman) himself went with the accused to the
house. At his house he ordered the accused to get dressed
and take the weapon with which he had assaulted the deceased so that
could escort him to the police station. The accused complied.
Nkoai Nkhahle accordingly escorted the accused to Roma police station
where he handed him over to the police, together with the iron rod.
This is confirmed by D/P/W Shata who testified that she consequently
arrested, cautioned and charged the accused as aforesaid.
The accused who is a traditional doctor gave evidence on
oath and admitted, as correct, all the evidence adduced by the
witnesses. That being so, it must be accepted that there
is overwhelming evidence that the accused is the person who assaulted
deceased and inflicted upon him the injuries that brought about
6/ The salien-6-
The salient question is whether or not in assaulting the
deceased in the manner described by the evidence the accused had the
subjective intention to kill. In this regard it is common
cause that prior to the events of 6th April, 1987 two of accused's
Rabati and Macheli, were struck and killed by lightning at
separate times. Then a house belonging to accused's sister was burned
down by lightning. Thereafter one of accused's horses was struck and
killed by lightning.
The deceased, who was also a traditional doctor, then
boasted to P.W.1, a relative of the accused, that since he had
tried unsuccessfully to kill the accused he was going to
finish his (accused's)children and animals by lightning. This is
by P.W.1 who told the court that she even reprimanded
the deceased and alerted the accused about the threats which the
making against him. Indeed, in his evidence the accused
told the court that following the death of the second of his herdboys
once met the deceased who claimed responsibility for the death of
the first herdboy, Rabati. He (accused) then assaulted the deceased
and was subsequently charged criminally before a court of law. The
accused told the court that he was convinced that the deceased
practising witchcraft to his detriment and the killing of his horse
by lightning on the night proceeding 6th April, 1987 was
evil work of the deceased.
When on the day in question, 6th April, 1987, he noticed
the deceased entering into the house of P.W.1, his relative, the
feld extremely provoked and assaulted him as it has already
been described by the evidence. He (accused) conceded that after he
been ordered away from the beer house he was
walking towards his house when he noticed the deceased
also walking at some distance away. According to the accused, the
followed by the deceased was not leading to his house. He
had a suspicion that the deceased was going to practise his
so that he could harm him. He decided to follow and kill
the deceased before he could get a chance to do so.
When he caught up with him the deceased had crossed the
river and was lowering his pants. His blanket was lying on the ground
paces from him (deceased). Accused believed that the deceased
was making preparation to go into the water and create lightning
would harm him (accused). He hit the deceased two blows on the
head with his iron rod.. The deceased fell to the ground and died.
It must be pointed out that according to the evidence of
P.W.1 and Liphakana Peiso when they saw him lying prostrate on the
the deceased had already crossed the river and was on the
mountain slope. I find the accused's story, that when he caught up
him at the mountain slope the deceased was preparing to go into
the water to create lightning unconvincing. A sensible thing for
deceased to do would have been to go into the water and create the
lightning at the time he came to the river and not after he
crossed it and was already climing on the mountain slope.
Be that as it may, the accused told the court that after
he had assaulted the deceased to death he returned to the beer house
informed the headman, Nkoai Nkhahle, that he had killed the
deceased. He confirmed that the headman then escorted him to Roma
station. He handed his iron rod to the police who accordingly
cautioned and charged him of murder.
8/ I am satisfied
I am satisfied on the evidence, that at the time he
assaulted him, the accused genuinely believed that the deceased was a
practised witchcraft to his detriment. Indeed, in their
evidence P.W.I and P.W.2 told the court that the deceased was
by the community in which they lived as a person capable
of practising witchcraft.
I was referred, among others, to the decision in Rex
v. Nathane 1974-75 UL.R. 64 at p. 67 where Mapetla C.J. reduced a
charge of murder to culpable homicide after making the following
"It is fair to infer that she was reputed in her
community to be person who was possessed not only of supernatural
one who often used such powers to do physical harm to
other people, a belief, I might add which deceased herself by her
utterances to which I have already referred, fostered and
It is to be observed, however that at the time the
accused assaulted and killed the deceased in Rex vs Nathane,supra, the latter was uttering provocative words to the
accused. In the present case no provocative words were being uttered
by the deceased
at the time he entered into P.W.1's beer house and
was assaulted by the accused. To that extent the present case is
from Rex vs Nathane, supra.
In any event even if I were wrong and it can be held
that the deceased's sudden appearance at the house of P.W.1, a
relative of the
accused, amounted to a provocation it must be
remembered that after he had been assaulted at P.W.1's beer
house the deceased
was still alive and able to walk away from that
9/ The assault .
The assault that brought about the deceased's death is
the one which the accused perpetrated upon him on the mountain slope
the river. It is significant to note that the question whether
or not provocation can reduce murder to culpable Homicide is
governed by Criminal Law (Homicide Amenment) Proclamation 1959
of which section 3(1)(b) clearly provides:
" " 3(1) A person who -
(b) does the act which causes death in the heat of
passion caused by sudden provocation as hereinafter defined and
is time for his passion to cool, is guilty of culpable
In his words the accused told the court that as he was
going to his house from P.W.1's beer house he noticed the deceased
at some distance away. He then decided to follow the deceased
and kill him. Well, if he followed and killed the deceased who was
walking at some distance away from him, the accused cannot be heard
to say he assaulted and killed the deceased in the heat of passion
caused by sudden provocation. In the result, it must be accepted that
when he assaulted and killed the deceased on the mountain slope
across the river, the accused had the requisite subjective intention
to kill. I accordingly find him guilty of murder as charged.
Both my assessors agree with this finding.
B.K. MOLAI JUDGE.
3rd May, 1989.
For Crown : Miss Moruthoane, For Defendant : Mr. Maqutu.
Having convicted the accused of murder the court is now
enjoined by S.296 of the Criminal Procedure and Evidence Act, 1981
to state whether or not there are any factors tending to reduce the
moral blameworthiness of his act.
There is evidence that the accused and the community in
which he lives genuinely believed that the deceased was a wizard who
witchcraft to the detriment of the accused. It is trite law
that accused's belief in witchcraft can properly be considered a
factor tending to reduce the moral blameworthiness of his act - seeRex v. Fundadubi and Others 1948(3) S.A. 810. Rex v.Rai Manyangaza 1971 - 73 LLR 171, Rex v. Nathane
1974-75 LLR. 64.
There is also evidence that whilst lightning was doing
havoc to accused's herdboys, animals and the property of his
deceased boasted that he was the person reponsible for
all his misfortunes. That, in my view, was provocation on the part
deceased. Although it was not such that it could reduce
murder to culpable Homicide the provocation must be taken into
purposes of extenuating circumstances.
In the result, I come to the conclusion that extenuating
circumstances do exist in this case and a proper verdict is that the
is guilty of murder with extenuating circumstances.
It must be mentioned that only one of my assessors
agrees with this finding. The other assessor takes the view that no
circumstances exist in this case.
SENTENCE : NINE (9) years imprisonment.
For Crown : Miss Moruthoane, For Defence : Mr.
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