CRI\T\45\90 IN THE HIGH COURT OF LESOTHO
In the matter between:
andMONAHENG KOBELI Accused
Delivered by the Honourable Mr. Justice J.L. Khaola
on the 16th day of August. 1993
The accused is charged with murder, it being alleged
that upon or about the 25th day of March, 1990 and at or near
Mpharane in the
district of Mohale's Hoek, the said accused acting
unlawfully and with intent to kill, did assault Abiel Khosana and
injuries upon him from which the said Abiel Khosana
died on the 15th day of April, 1990.
The accused pleaded guilty to the charge. The plea was,
however, entered as a plea of not guilty. Mr. Mathafeng, counsel for
applied for a short break to consult with his client.
After that short break he informed the Court that he was withdrawing
After several postponements the matter was heard pn the
4th August, 1993. Mr. Fosa appeared for the defence.
According to the post-mortem examination report (Exhibit
"A") the cause of death was left subdural haemorrhage.
linear fracture of parietal bones.
P.W.1'Mapompa Monaheng is the single eye-witnese in the
present case. She testified that both the accused and the deceased
lovers. She had been in love with them for more than two
years. They were both married but she was not. On the 25th day of
1990 she went to a drinking place at the home of Pompi in the
village. She arrived there at about midday and started drinking
beer until about 8.00p.m. when she left accompanied by the
deceased who had arrived at dusk. It is her evidence that at dusk the
accused had also arrived. He sat near the door for some time and then
left. He was wearing a dark-grey blanket with Crowns. She did
what he was holding in his hands because they were covered by the
blanket. She saw him well although she did not speak to
At about B.00p.m. she left the drinking place. She was
accompanied by the deceased. When they passed below Elton's yard she
footsteps coming from behind them. She looked back and saw that
it was the accused. He was coming in a hurry. He came to them and
struck the deceased on the head with something she did not see what
it was. The deceased fell down. She ran away immediately and
her parents' home,
It is common cause that thereafter the deceased was
found by one lady who was returning from the same place as the
deceased and P.W.I.
The deceased was lying there alone and the lady
was under the impression that he was drunk because he was snoring.
She reported the
matter to the chief.
P.W.1testified that although there was no moonlight it
was not dark because there were no clouds. On this point she is
by the lady who found the deceased lying there and
snoring. She had no difficulty to see and identify the deceased. She
the accused did not utter a single word when he struck the
deceased on the head. She did not report what happened to anybody
the deceased was found and an alarm was raisred. She did not
report because she was frightened.
It is common cause that at the time of the trial
P.W.1had very poor eyesight. She could not even identify or see that
the person who
was in the dock was the accused. She told the court
that her eyesight problems started in April this year. In March, 1990
In cross-examination a P.W.1said that on the night in
question she was not very drunk and she was not staggering. She saw
that transpired. She did not warn the deceased that the
accused was coming because he came in a hurry.
Furthermore she did not know that he was coming to harm
the deceased in any way. At worst she thought that the accused was
to her. She denied that the accused came to the drinking place
P.W.1says that after the death of the deceased she and
the accused were instructed to report at the charge office on a daily
for about two weeks. During that period they were interrogated
by the police. They denied all knowledge about the death of the
At last the policemen who used to interrogate her told her
that they were inviting policewomen (her equals) from Mohale's Hoek
come and interrogate her. Knowing that policewomen would assault
her she decided to tell the truth that it was the accused who
the deceased. She says that she did not falsely implicate
the accused. It is true that the accused assaulted the deceased. When
was put to her that the stick (Exhibit "1") was fetched
from the home of the accused on the day following their detention,
she denied this. Her story is that Exhibit "1" was fetched
after two weeks when she decided to tell the truth.
P.W.5 Detective Trooper Malefane testified that on the
26th March, 1990 the deceased was brought to the charge office in a
He referred him to the local clinic and accompanied him.
The deceased was still alive but he could not speak. He
had a wound on the middle of the head towards the right
aide. It was an open wound but not bleeding.
On the same day he went to the village of Ha Phala in
order to attend to the scene of the crime. The chief showed him the
the deceased was found. He saw blood there. His
investigations revealed that the last time the deceased was seen he
was in the
company of P.W.I, He looked for her and found her. She
denied any knowledge about the assault of the deceased. P.W.5 says
asked P.W.1to come to the charge office with him. When they
came to the gate of the charge office she told him that she was
to tell him the truth. He then took her statement in which she
implicated the accused. He released her.
On the 27th March, 1990 P.W.5 went to Ha Phala again and
found the accused. He cautioned him and charged him with assault. He
the accused what he had used. He said he had used a stick.
P.W.5 says that the accused led him to his (accused's) house and
a stick (Exhibit "1") from behind the suitcases
where he had kept it. No pressure was applied to the accused to force
to make a statement.
In cross-examination P.W.5 denies that P.W.1had to
report herself at the charge office for two weeks. He, however,
admits that the
policewomen were summoned from Mohale's Hoek to come
interrogate P.W.1in the proper manner. The accused was
taken to Mohale's Hoek magistrate's court (or remand on the 28th
At the close of the Crown case the defence closed their
without calling any witness.
The evidence of P.W.1has been challenged in
cross-examination on the grounds that as it was at night she could
not have properly identified
the accused and that she was drunk.
The evidence of P.W.1and P.W.2 as well as that of
'Mathakane Lekhoro, who was P.W.2 at the preparatory examination and
which was formally
admitted by the defence, is that although it was
night it was not dark because the sky was clear. They had no
difficulty to identify
the deceased where he was found lying. I have
no doubt that P.W.1saw or identified the accused without any
difficulty because he
was very close to her when he struck the
deceased on the head with a stick.
I accept the evidence of Trooper Malefane that P.W.1made
a statement implicating the accused on the same day she arrived at
office. She must be mistaken that she made such a
statement after two weeks of her reporting at the charge office. She
evidence of the events which took place
over three years ago. The evidence of Trooper Malefane
is more reliable because he has access to the police docket and his
from which he must have refreshed his memory before he came
to court to give evidence.
The allegation that P.W.1was drunk is accepted by her
but she says she was not so drunk that she was unable to see what was
place around her. I accept her evidence on this point because
she narrated the events very well and without any hesitation. She was
not shaken at all by the long and rigorous cross-examination by the
defence counsel. On the whole the impression I formed of her
she was an honest and reliable witness.
The accused exercised his right to remain silent after
the close of the Crown case. I do not think that this was a wise
there was evidence which directly implicated him. He
decided to leave that evidence unrebutted. I find it hard to reject
which the accused has chosen not to deny. The accused's
failure to testify has strengthened the crown case (See S. v.
(4) S.A. 877 (A.D.) at p. 893G.).
The fact that the accused pleaded guilty and never
changed his plea must be taken into account in deciding the guilt or
otherwise of the accused. The indictment was thoroughly
explained to him in Sesotho and I have no doubt that he clearly
it. His first Counsel was not happy with that plea and
asked for a short break. When they came back he suddenly decided to
from the case. Whatever they discussed during the break but
the plea was never changed. A new Counsel, Mr. Fosa, took over from
previous counsel. He also did not change the plea. I am of the
view that the accused is bound by his plea because he has not given
any explanation why he tendered that plea.
In S. v. Britz, 1963 (1) S.A. 394(T), it was held that
an accused wishing to withdraw a plea of guilty must give a
as to why he had pleaded guilty and now wishes
to change his plea. If he fails to give an explanation the court
would be entitled
to hold him to his plea of guilty. If he does give
any explanation there is no onus on him to convince the court of the
his explanation. Even though his explanation be improbable
the court is not entitled to refuse the application unless it is
not only that the explanation is improbable, but that
beyond reasonable doubt it is false. If there is any reasonable
of his explanation being true, then he should be allowed
to withdraw his plea of guilty (see also R.v. Nathanaon, 1959 (3) SA
Mr. Fosa submitted that because there was no evidence of
medical treatment at Mpharane Clinic, Mohale'a Hoek Hospital and
II Hospital the court must not rule out the
possibility of novus actus interveniena. I do not agree with that
submission. There must
be proof that there was novus actus
interveniens. It cannot be inferred on the mere fact that there is no
evidence of how the deceased
was treated. In R. v. Motomane 1961 (4)
S.A. 569 (W.L.D.) there was evidence of that the causal chain had
been broken and the Crown
had failed to prove that the accused was
responsible for the death of the deceased.
In R. v. Du Plessis 1960 (2) S.A. 642 it was held that:
"Where a wound is inflicted and the person is
placed in the care of a medical practitioner and the person dies,
then the person
who inflicted the wound is responsible for such
person's death unless the medical practitioner by his negligent or
introduced a nova causa which is actually the cause
of death. The causal connection between the infliction of the wound
which resulted is broken thereby. Where there is no nova
introduced from the outside by a third person, and the
death results as a natural consequence of the infliction of the
regard to the bodily condition of the injured person,
then the person who inucted the wound was the cause of death. The
the deceased on account of his age, constitution or habits,
was more vulnerable or prone to the result that followed, does not
the causal connection."
In the present case there is medical evidence which
shows that the deceased died as a result of the injury inflicted by
Exhibit "1" is a very heavy stick indeed. When
struck the deceased on the head with it he foresaw the
that his act was likely to cause the death of the
but he was reckless as to whether it occurred or not.
The accused is found guilty of murder. My assessors
J.L. KHEOLA JUDGE
In its judgment the Court found that the intention in
the present case was one usually known as dolus eventualis which is
regarded as an extenuating circumstance.
It was submitted that as the accused was in love with
P.W.1he was overcome by jealousy when he found her at night with
He was justified in thinking that they must have had or
were about to have sexual intercourse. In Rex v. Molomo (2) 1976
at p. 74 Cotran C.J. said:
"Fourthly, seeing the deceased with another man,
and a married one at that, in a hut alone he was justified in
they proceeded there to engage in sexual intercourse,
and although, objectively speaking, it was not reasonable for him to
in the way he did since she was not his wife, subjectively,
quite obviously, he must have been consumed by so much jealousy that
his vision became clouded, and hence he is morally less blameworthy."
I find that there are extenuating circumstances.
Sentence:- In passing sentence I took into
account that the accused is a first offender; he has been in custody
for a period of three years;
he pleaded guilty to the charge and that
is a sign of remorse and an indication that he did not want to waste
the Court's time.
He is sentenced to eight (8) years' imprisonment.
Exhibit "1" is forfeited to the Crown.
JUDGE 16th August, 1993.
For Crown ; Mr. Ramafole For Accused : Mr. Fosa,
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