THE HIGH COURT OF LES0TH0
In the matter of :
R E X
V TSELISO MOJALIBE
Held at Butha-Buthe
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on
the 15th day of June 1990.
The accused is charged with the crime of murder of his
father Malibeng Mojalibe who died on the 7th October 1986 in the
Berea. Before the accused could plead in response to
the order made by the Chief Justice who first officiated in this
an application by the then legal representative of
the accused Mr. Moorosi the accused was sent for observation
by a psychiatrist, to determine whether at the time of the commission
of the offence he was
insane or not. This order was duly complied
with and Dr Mohapeloa came and gave evidence before me. As to the
crucial matter whether
the accused was insane at the time of the
commission of the offence, Dr MOhapeloa's reply was that he was sane.
Dr Mohapeloa is a psychiatrist and he had occasion,
according to his evidence, to meet the accused on several occasions
the order that was given by the Chief Justice. The last
such occasion was on the 6th June, 1990. He has had occasion also to
the accused's mother, the accused's brother and the accused's
Dr Mohapeloa's evidence was that the accused was
perfectly lucid when he is said to have committed the offence.
However he said he
has a personality disorder of the aggressive type;
but that, this is no sign of insanity or in itself any insanity; He
that, personality disorder leads to aggressiveness
especially in thin particular case that we have before us. He
this is a personality development which is on-going
with the passage of years. It could come about through provocation
intake or distress. He re-emphasised that the accused
is fit to stand trial.
The interview that the doctor had the benefit of was of
the accused's relatives, namely his mother 'Mathabiso and the
Thabiso. From his interview of these witnesses the
doctor felt that his opinion was reinforced that the accused was sane
time of the alleged offence. He informed the court that from
his interview of the accused's relatives, there emanated no sign of
past mental illness. He informed the court that the personality
disorder at times manifests itself in with drawal or anti social
behaviour in his relations with other people.
The court asked Dr Mohapeloa, how it is possible to
determine with certainty the mental state of a man relating to events
long time before he examined him. The doctor's frank
reply was that such a determination is an educated guess.
In my view the bottom line is that be it educated guess
or just guess, it is in the last or final analysis guess-work
The accused duly pleaded not guilty to the charge, and
the evidence of P.W.2 Dr Huslar was admitted as well as that of P.W.7
The first evidence of P.W.2 related to his treatment of
the victim of the assault on the accused's uncle, whereas the
by the same doctor related to the assaults and an
observation of the assaults detailed on the postmortem report of the
Mojalibe. The crown accepted these admissions and
they were read into the recording machine and made part of the
record in these
Further evidence was admitted but this time in terms of
section 227 subsection l(a) (iii) of the C.P. & E. being the
of P.W.1 P/W Leraha. It was so admitted because the witness
due to illness could not be available to give evidence in this Court.
P.W.1 is a Police Woman who investigated the offence in
this matter. Having received a report from her station she proceeded
home of the deceased and met with the local headman. The
headman showed her a dead body of the deceased and she saw external
In her examination she saw a wound on the middle of the
head - this was an open one and deep. There was also a bleeding
the middle of the chin. The right arm was broken and that
was all this witness found. She is supported in this regard by P.W.3
the accused's mother.
According to the doctor the cause of death was (sic) due
to an assault on the head, leading to some subdural haematoma.
It appears that there are at least two eye witnesses in
this matter, namely the accused's mother and her daughter-in-law.
of 'Mathabiso the accused's mother who is aged about 70
shows that she received a report from her daughter-in-law P.W.4.
the alarm, she proceeded to the house in which the deceased
was and found that the accused was hitting his father with a
The deceased was on the ground. She asked the accused
what he was doing, and the accused said she shouldn't go in there.
she proceeded and raised an alarm among the villagers in
the process of which she saw Johanes and Mokete approach the scene.
the accused was still in the house where the deceased was.
The evidence of P.W.4 'Maseetsa Mojalibe who is the
daughter-in-law of P.W.3 shows that her house is about
20 paces away from that of her parents-in-law. During
early dusk of the day in question she heard her father-in-law, namely
shouting and saying "Maseetsa come I am dying"
and she peeped at the door and saw the accused hitting the deceased
a knob-kerrie. It was due to this that she turned right there
and went to raise an alarm. The first person she told was P.W.3,
as I indicated also came and satisfied herself that it was the
accused who was assaulting the deceased. Thereafter the generality
of villagers came; and it is said that the accused was furious in
there and letting nobody come in.
The person who ultimately came in was the accused's
brother, who got hold of the accused, as he found him bent around the
of the deceased fiddling for something. When the accused's
attention was drawn to his brother, the accused adopted a very
attitude towards the brother with the result that he even
at some stage hit him with that knob-kerrie.
Further evidence shows that eventually the villagers
over-powered the accused and tied him up. It is common cause that
died the same day of the assaults. The other aspect is
that at the time that Thabiso fell the accused to the ground and
there, the accused asked him "brother are you
killing me?" and in reply P.W.5 asked "what have I done
that you hit
me with the knob-kerrie?" The accused, it is said,
did not reply.
There was also the evidence of P.W.6 who in response to
the alarm raised by P.W.4 came to the scene and when he arrived
saw that the accused was using a knob-kerrie in the house to
beat his father. And P.W.6 asked him "Old fellow what is the
The accused hurled abuse at P.W.6 and asked him
whether he was already there.
The accused, it is said, then rushed at P.W.6 and
levelled knob-kerrie blows at his head twice. The witness showed me
which are visible: one on the right upper border of the
forehead and another on the left side-immediately behind the left
P.W.6 says as a result of these blows he fell to the ground and
was blinded by blood that was oozing from the wounds while the
doesn't deny having caused those injuries.
The accused's mother's evidence shows that the accused
began showing some perculiar and aggressive behaviour about a week
incidents - his brother said as much too.
In questions which were put on behalf of the accused to
the crown witnesses it appears that there was occasion when a cow
to the family was sold to either Lebitsa or Tsukulu. To be
exact the question put on behalf of the accused was that; "this
cow was sold to Tsukulu - ?" But the accused's brother pointed
out that this cow was sold to Tsukulu's father Lebitsa. P.W.4
said as much. The accused's brother went further to show that this
cow belonged to the deceased.
No question was put to contradict the accused's brother
in this regard. It was only when the accused was giving evidence
court heard for the first time that this cow belonged not to
the deceased or the deceased's wife but to the accused himself.
The accused heard evidence being led by his own brother
saying that the accused had no livestock at all. P.W.5 himself said
didn't have any animals. Indeed if the accused had any
animals he had the opportunity to tell his brother that he was
lie when he said he didn't
have any animals. But the brother's evidence was let
pans in silence even though it was in contradistinction to what the
the court to believe when he was saying for the first
time that he had a cow when he was in the box.
I have no hesitation in dismissing as a fabrication the
evidence led by the accused that he had this cow which he sold to
It also turned out from the evidence by the accused's
mother that, by the time this cow was sold, the accused had already
the perculiar behaviour that she observer: in him. It
would seem therefore that the sale of this cow, did not unhinge the
mind if at all it was at any stage unhinged. The accused's
uncle said the accused drink? a lot. Well, the accused doesn't deny
drinking but he is opposed to his uncle saying that he exceeds his
uncle in that type of exercise.
There is no evidence that on the day of the incident the
accused was drunk at all. Evidence that and which is credible is
was wildvery wild. The accused denies this. He gave
evidence, in the course of which he told the court that he didn't
get into the box but rather wanted to be sentenced from where
he is, i.e. from the accused dock. However the fact that he did
over to the witness box, gave the court some idea about, and
served as a kind of a window into the accused's mind; at least
the course of his giving evidence.
The court and the assessors were able to assess and
evaluate the accused's conduct. The court was in no doubt that not
the versions of P.W.4 and P.W.6 vindicated as to the
behaviour of the accused but also that observed by Dr Mohapelom.
were vindicated in the sense that the accused turned
to be argumentative, irrelevant and didn't seem to appreciate the
giving evidence at all.
At no stage did the accused show how or whether he knew
how,his father died. He only told me that he knows that the deceased
at the hands of Thabiso who had strangled him
But evidence here shows no signs of strangling at all.
fact the admitted evidence shows that the deceased died
from head wounds. This, in itself is an indication that the accused
failed to join issue with the crown on crucial aspects of the
evidence that one would have expected him to if he was of sound mind.
While psychiatrist evidence is of importance, at the
end of the day it is evidence like any evidence regarding which the
at large to determine what witness to believe and what
witness not to believe. Much as Dr Mohapeloa told the court that the
is not insane, the court and the assessors saw the accused
for themselves and had great doubt as to the accused's sanity. In
if one can refer to Chief Justice's minute of the 4th December
1989, the accused told the Chief Justice that he didn't want any
and that it is nothing for a man to be hanged.
In the course of his evidence before this Court the
accused said words to the same effect, i.e. that he wan in a hurry,
the verdict to be returned and that he was prepared to take
the blame for the offence committed by Thabiso. While in fact this
be taken as, in the words of Dr Mohapeloa, a sign of personal
disorder one doubts whether a personal disorder which can go to the
extent where a man is prepared to take another's blame can be too far
from the periphery of madness itself.
The law places liability on an offender. This depends
on the offender's intent. The law does not allow execution or
innocent people nor does it allow execution of mad
people. Insane people under the provisions of the law are to be
in the process means are employed to ensure that the
society itself is protected.
It would be a sad day if because of guess work a man who
is insane is made to suffer the ultimate penalty imposed by the law.
Under section 172 of the C.P. & E. it is provided
if during trial of any person charged with any offence,
it appears to the Judicial Officer presiding that such person is
mentally incapacitated, the court before which the trial is
being held shall inquire into the question of such person's sanity.
If the court finds the person charged with an offence
insane or mentally incapacitated persuant to subsection (1) it shall
such verdict and shall issue an order committing such person
to some prison pending the satisfaction of the King's pleasure.
There has been this evidence of perculiarity of the
accused's conduct before the commission of the offence itself and
was not precipitated by the sale of the cow, because
the cow was sold subsequent to the signs of perculiarity on the
There was evidence - although it is hearsay evidence
but I think it is to the benefit of the accused that it was reported
- that the accused was being aggressive to the children and
was trying to burn one of them on the fire.
The sad aspect of this case is that the deceased is said
to have been a blind man - hardly a danger to anybody. That he was a
of this vicious assault shows the type of mind that the
accused laboured under. Of course the accused denies commission of
that led to the injury or death of his father. All in all
the accused's evidence was just a rambling and on-going series of
As a result my assessors and I have come to the
conclusion that provisions of subsection 3 of section 172 of the C P.
E. are to be
invoked in this case. The court accordingly returns a
special verdict in terms of which the accused is to be committed to
pending the signification of his Majesty's Pleasure.
15th June, 1990.
For Crown : Mr. Mokhobo For Defence: Mr. Fosa.
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