IN THE HIGH COURT OF LESOTHO
In the matter between:
LIKHOPO LETHAKHA Accused
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 21st day of September. 1992
The accused is charged with the murder of 'Makhano
Lethakha, it being alleged that upon or about the 4th day of
September, 1988 and
at or near Tloha-Re-Buoe in the district of
Mokhotlong, the said accused did unlawfully and intentionally kill
The accused pleaded not guilty to the charge.
The defence admitted all the depositions made by the
Crown witnesses at the preparatory examination. They also admitted
examination without requiring the doctor who made it
to appear before the Court for cross-examination. According to the
report death was due to most likely a sharp cut of arteria
carotic communis decter. She had a wide open wound from
below the right ear to the middle of the lower chin. There was a
below the right ribs and scratches on the back. The face
and head were covered with blood.
P.W.1 Thokolo Mporo testified that on the 4th day of
September, 1988 he was at his home at Tloha-Re-Buoe. It was in the
of the day. He saw the accused at the deceased's kraal.
About an hour later the accused came to his house and told him that
visited the deceased but found her dead in the house. Accused
told P.W.1 that he had seen blood next to the head of the deceased.
He asked P.W.1 to come and help him remove the body to another hut
since that one had property in it and it would be unwise to have
vigil held in there.
P.W.1 refused to do that and told him that he was going
to call the people to come and see. The accused said the deceased had
killed by the Gods (balimo). P.W.1 disagreed with him and went
ahead and raised an alarm.
Many people came and they all entered into the house
with the accused. They found the deceased lying in the middle of the
dead. She was stark naked. There were pools of blood on
both sides of her head. There was an open wound extending from below
ear round throat to the left ear. The gullet was visible.
There was a shoe print with straight lines running across the shoe on
of the blood pools. That shoe print was similar to the prints of
the shoes the accused was wearing.
The accused was searched and his attire examined. It was
found that his blanket, his overall and his one shoe were blood
When he was asked about the condition of his attire he gave
conflicting answers. Headman Matekoane Sodane sent for the police.
they arrived they made their own investigations and the accused
produced a knife from a window. As far as P.W.1 observed the knife
had no blood stains. At the deceased's kraal an iron rod belonging to
the accused was found. It had blood stains.
The police seized all the blood stained articles and
took them away. The accused and the body of the deceased were also
to Mokhotlong in a police van.
The evidence of P.W.2 Letheba Joel is almost identical
with that of P.W.1. I do not propose to give its summary.
P.W.3 Matekoane Sodane is the headman of Tloha-Re-Buoe
village. On the day in question he received a report from P.W.1. As a
of that report he went to the home of the deceased where he
found many people. P.W.1 asked him to go into the house and see for
He found the deceased lying on her back in the middle of the
house. She was naked. She was lying in a pool of blood; her throat
cut and she appeared to have been slaughtered like a sheep
because there was an open wound around her neck. There was a shoe
on one of the pools of blood. He observed the blood stains on
the attire of the accused, on his shoes and on his iron rod. The
ropes that wrapped the iron rod were also covered with blood.
The police were called and after interrogation the
accused produced a knife from the window. P.W.3 says that the knife
was blood stained
P.W.1 said it was not so stained. The accused, the body
of the deceased and all the exhibits were taken to Mokhotlong. Prior
burial of the
deceased the police came to Tloha-Re-Buoe accompanied by
the accused. He led them to a place called Mokhoabong where he stayed
produced a knife hidden in a bundle of straw in a wall. It was
wrapped in a jute strap.
P.W.3 explained that the deceased was accused's
grandmother. They had quarrelled on several occasions over the
estate of the late
husband of the deceased. Just before she died she
had informed her headman that she intended to call a family meeting
her problems with the accused.
P.W.4 Leseko Lethakha confirmed the events which took
place at the home of the deceased in the same manner as the witnesses
above. He went further to say the accused and the deceased
were never friendly to each other. The deceased used to tell them
the accused always arrived at her home and spent the night there
without her consent and further that the accused had once broken
door. They called the accused to family meetings on several occasions
but he never attended. They were to meet at the deceased's
the very day she met her death. The
accused and the deceased were quarrelling over the
estate of the deceased's late husband because he had no son left to
The evidence of P.W.5 Oele Sodane has nothing to add to
what we already know.
P.W.5 Thoriso Lethakha confirms that the animosity
between the accused and the deceased was over the estate of the late
husband. He died a long time ago leaving no heir. The
family sat about four times in order to resolve this problem but the
refused to attend. On the day she met her death the family
was to meet at her home to discuss this issue.
The evidence of the police deals with the injuries found
on the body of the deceased, the seizure of the exhibits which had
stains and sending them to the laboratory for classification in
terms of blood groups. The findings were conclusive that the blood
found on the clothes of the accused was of the same group as that
found on the clothes of the deceased.
The accused testified that because the
deceased did not have an heir the family appointed him
as the heir in that house. He and the deceased lived in the same
He never lived harmoniously with the deceased
because she expelled him from her home on five occasions, He always
his father insisted that he must go back as a person
who was made heir in the house of the deceased.
On the day he killed the deceased he had received
information from one Tlhoriso that the deceased and some people from
a place called
Mateanong were planning to kill him at any time. One
boy in the village confirmed that he (accused) was going to be
killed. On that
fateful night he went to the house of the deceased
and the people who were supposed to kill him were not there, However
the door and the deceased who was already in bed rushed at
him and asked whether he was already there. He caught hold of her and
threw her to the floor and pressed her down. He ordered her to bring
back all his expenses so that he could go away. He then stabbed
with a knife and cut her throat. The deceased was struggling and
kicking before he stabbed her.
The accused went on to say that the expenses he referred
to are in connection with the roofing of one of the deceased's house
the building of another house. The deceased drank liquor
excessively and used to insult him.
Under cross-examination the accused said that when he
was appointed heir of the deceased one Qai and one Lithako were
they agreed with his father about the appointment since
the deceased had no male issue. When she rushed at her she caught him
his blanket and pulled him. She could not succeed to pull him
because she was not strong. He said that when he threw her to the
and pressed her down and stabbed her he suspected that those
people who were supposed to kill him were coming; but they were not
there when he killed her.
After the close of the defence case I suspected
that the accused might have been suffering from some sort of
and ordered that he must be examined by a
psychiatrist. A report was to be made and submitted to the Court.
However before then I
called his father, Litsela Lethakha, to clarify
His evidence was to the effect that when the accused was
weaned he was given to the deceased and her husband to be their heir.
was done at the request of the deceased's husband. After the
death of the deceased's husband the relations between the deceased
became sour and she expelled her from her home on five
occasions. His father ordered him to go back insisting that
was his home. As far as the mental disease is
concerned the father of the accused said that his son suffered from a
made him sleep but he was never violent. He took him to
traditional doctors and to a medical practitioner at Butha Buthe
once in 1964. The accused and the deceased did not live
happily because latter drank wine, smoked dagga and was very violent.
The Ministry of Health failed to get a psychiatrist and
the report was made by a General Medical practitioner, Dr. Msulwa
by a psychiatric nurse, Mrs. Makara. The findings were that
the accused is medically and mentally fit and can stand trial. The
is marked Exhibit "B".
The case for the Crown depends on
circumstantial evidence as well as a confession which
was made by the accused in court when he made a sworn statement. The
evidence relates to the fact that the accused's
blankets, overall and shoes had deceased's blood stains. The print of
his shoe was
found on one of the blood pools found on the sides of
the body of the deceased. The circumstantial evidence suggests that
had something to do with the daceased just before she
died or immediately thereafter.
In the morning the accused told P.W.1 that the deceased
had been killed by the Gods. He was actually telling a lie since the
cannot cut a person's throat with a sharp object. He later
produced two knives which he had hidden in different places.
In court he made a very detailed account of how the
killed the deceased. He took a pre-empted strike at the deceased
because one Tlhoriso
had informed him that the deceased intended to
kill him assisted by people from Mateanong, On the night in question
he had the intention
to kill her and went to her house and pushed the
door open and surprised
the old lady who was sleeping and naked. He brutally
murdered her by slaughtering her with a knife. He told the Court that
the intention to kill her.
I have formed the opinion that the accused was not
insane when he killed the deceased. In any case, he never raised
insanity as his
defence. He said the deceased provoked him by
insulting him. I think she insulted him as a last resort because he
was already pressing
her to the ground when she insulted him. It was
a way of expressing her anger at a young man who was not ashamed to
do that kind
of thing to an old lady who was naked. I do not see how
an insult from the deceased can be regarded as provocation when the
was the initial aggressor. He was just about to slaughter her
when she insulted him.
The accused had the requisite intent for murder in the
form of dolus directus. I accordingly find him guilty of murder.
My assessors agree.
J.L. KHEOLA JUDGE
21st September, 1992.
For Crown - Mr. Mdhluli For Defence - Mr. Fosa.
An extenuating circumstance is a fact associated with
the crime which serves, in the minds of reasonable men, to diminish,
though not legally, the degree of guilt.
In Rex v. Biyana 1938 E.D.L. 310 at pp. 311-312
Lansdown, J.P. said:
"But be that as it may, when we find a case like
this, where there is a profound belief in witchcraft, and that the
it to grave harm, and when we find that this has
been the motive of the criminal conduct under consideration, we
feel bound to regard the accused as persons labouring
under a delusion which, though important in any way to alter their
does in some measure palliate the horror of the crime
and thus provide an extenuating circumstance. Their position is
that of a man who genuinely but erroneously believes he
has been the victim of a grievous wrong, and, while suffering under a
of this grievance, deliberately endeavours to avenge himself
upon the supposed wrongdoer by killing him. His crime is not reduced
in law by such a belief, but such a belief, genuinely and not
unreasonably entertained might provide a measure of mitigation, and
therefore become an extenuating circumstance."
It is clear that provocation short of what is required
to negative guilt may constitute an extenuating circumstance.
emotional instability may be such, as a result of a
series of events spread over a long period of time and not strictly
to provocation, as to amount to
an extenuating circumstance. In R v Von Zell 1953 (3)
S.A. 303 (A.D.) at p. 314, for instance, one of the extenuating
specified by the Appellate Division was:
"the strains and stresses to which appellant was
subjected because of his relations with his wife and her daughter,
his wife's desertion and because of the legal proceedings
which she instituted against him".
In the instant case the accused was adopted by the
deceased and her late husband. He was made their heir. It seems that
death of the deceased's husband, the relations between the
accused and the deceased turned sour. By then the accused was a grown
up man. Re had built a house for the deceased and re-roofed another
one at his own expense. The deceased often expelled him from
home. Family meetings were convened on several occasions but the
accused never attended them. These quarrels continued over a
period of time. On some occasions the accused went to his parents'
home but his father ordered him to return to deceased's home
claiming that it was the
accused's home and he must stay there. He instructed his
family not to give food to the accused so that he must go back to
The accused found himself between the devil and the deep
blue sea. While he was in this confusion he alleges that he received
that the deceased and some people were planning to kill
him. He genuinely but erroneously believed this allegation that the
and some people were going to kill him. He erroneously
believed this allegation because it is common cause that the deceased
him very much. He believed that he had been a victim of a
grievous wrong in that he thought the deceased was depriving him of
own home. He came to this home at a very early age when he was
weaned. He made a lot of improvements to that place. In addition to
this grievance there was a plan to kill him. He then decided to
avenge himself upon the deceased by killing her.
Taking into account the strains and stresses to which he
was subjected by the deceased and his own father for over a long
time and the erroneous but genuine belief that he was going
to be killed, I have come to the conclusion that there
16 are extenuating circumstances.
16th October, 1992.
Twenty two (22) years' imprisonment.
JUDGE 16th October, 1992.
For Crown - Mr. Mdhluli For Defence - Mr. Fosa.
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