IN THE HIGH COURT OF LESOTHO
In the matter between:
MOSEHLE MABOKA 1ST ACCUSED
RANKHELEPE 2ND ACCUSED
Delivered by the Honourable Chief Justice Mr. Justice
J.L.Kheola on the 15th day of December. 1999
In Count 1 the accused are charged with murder. In that
upon or abut the 11th February, 1993 and at or near
Matlameng, in the district of Leribe, the said accused, one or the
other or both of them, unlawfully
and intentionally killed 'Maphopko
2 In Count 2 the accused are charged with arson. In that
upon or about the
11th February, 1993 and at or near Matlameng,
in the district of Leribe, the said accused, one or the other or both
of them, did unlawfully
and with intent to injure 'Maphooko Phooko in
her property set on fire and thereby damage a certain house being an
of the said 'Maphooko Phooko.
Accused 1 tendered a plea of guilty of culpable homicide
in Count I and not guilty in Count 2. Accused 2 pleaded not guilty in
counts. The Crown did not accept a plea of guilty of culpable
homicide and decided to prove murder.
P.W.1 'Mathabo Mathabe testified that she is illiterate.
The deceased was her elder sister's daughter-in-law. One day she went
the home of the parents of Accused 1. Her visit there was about a
day after the brother of A1 had been killed by lightning. She says
that she had not visited that family in order to give her condolences
concerning the death of their late son. I agree with the submission
by Mr. Teele, counsel for the defence, that according to Basotho
custom it was unusual for P.W.1 to pay a casual visit to a family
that had just lost a son who was struck by lightning and not for the
purpose of expressing her condolences. It is not clear why she
gone there for. She says that while she was at the home of the
parents of Al she saw the deceased go to the home of her (P.W.1's)
3 She decided not to go to her sister's home because she
apparently did not want to
meet the deceased there. She did not get along with the
deceased because on one occasion she (deceased) threatened to kill
child or herdboy with lightning and to kill the child's
mother with "thokolosi". She had also insulted her herdboy.
believed the threat made by the deceased and was frightened.
A few days later she was at her home when she heard an
alarm being raised by one Thato. He was shouting that A1 was killing
She went to the deceased's place but did not find any
of the accused. She examined the deceased and saw weals on her back.
following day she attended the meeting at the chief's place.
The two accused and the deceased were present at that meeting. They
told the chief that their relatives had told them that P.W.1 had told
them (relatives) that P.W.1 informed them that the deceased
responsible for the death of A1's brother because she struck him with
lightning. P.W.1 denied this report. It was obviously a
report because the relatives of the accused were not at the meeting.
The Chieftainess (P.W.2) decided that the matter should
be passed to the senior chief. At the senior chiefs place the accused
their story that P.W.1 had told their relatives that
deceased had killed A1's brother with lightning. P.W.1
4 denied this allegation. The senior chief did not
finally decide the matter because
the accused asked for a postponement in order to call
their witnesses. The postponement was unfortunate because on the
night of the
same day that the matter was postponed the deceased was
killed. P.W.1 says that at down one Moeno came to her place and told
that the deceased had been killed. She went to the deceased's
home and found her dead. Her house had been destroyed by fire.
P.W.1 says that at the two meetings of the chiefs the
accused said that they would eventually kill the deceased for the
death of the
brother of A1. In re-examination P.W.1 said that A2 had
said that he would help A1 in the killing of the deceased.
P.W.2 "Masesu Mashili is the Chieftainess of
Matlameng. The deceased was her subject. She testified that one day
before the deceased
was killed the two accused came to her place and
reported that they chased the deceased because P.W.1 had told them
that the brother
of A1 had been struck by lightning by the deceased.
They said that they wanted to kill the deceased for what she had
done. She decided
that they should come on the following day in order
to discuss the issue. They all came including the deceased and the
discussed. P.W.2 apparently found the matter to be too
serious and referred it to her senior chief.
5 P.W.1 had denied that she said the deceased killed the
brother of A1.
P.W.2 testified that when the two accused first came to
her place and reported that they had chased the deceased for killing
brother with lightning A2 also spoke and said that they would
kill the deceased for what she had done. But at the two meetings
the chiefs A2 said nothing. She testified that the deceased
was generally feared by the villagers because they believed that she
was a witch. On previous occasions some people had chased her for
practising witchcraft but she outran them. One Makione had chased
because he believed that she had bewitched his relative. She outran
According to the report of post-mortem examination the
cause of death was haemorrhagic shock due to multiple stab wounds:
the left breast penetrating the heart. Another stab wound on
the right breast and bums on the body.
A1 gave evidence under oath. His evidence is that his
late brother's name was Maboka. He was still attending school at
School and still unmarried. A1 was at home when his
brother was struck by lightning. A day after the incident one
to the A1 that P.W.1 had told members of
6 his family that the deceased had killed A1's brother
with lightning. A1 says that
he was hurt when he heard that because he had been under
the impression that his brother had died a natural death. He decided
the deceased about this matter. One day he went to her
home accompanied by A2. When they spoke to her she fled. They did not
her, nor did they assault her.
A1 says that when deceased ran away when they asked her
questions, they went to the chief's place and asked her to arrange
for a meeting
between them and the deceased. The meeting was actually
held on the following day. He denies that when they were at the
the chief he threatened to kill the deceased. The
chief in question was Chieftainess 'Masesu Mashili who gave evidence
in this case
as P.W.2 . She did not decide the matter but referred it
to her senior chief. She went with the accused and the deceased as
as P.W.1. The matter was postponed because A1 said that his
witnesses were not there. On the night of the same day when the
was postponed the two accused went to the village in which the
deceased lived. A1 says that they drank a lot of beer at his aunt's
place. They left at 8.00 p.m. He asked A2 that they should go to the
home of the deceased in order to ask her politely about the
which killed his brother. They were not going to fight.
7 When they arrived there she opened the door for them.
He told her that they
had come in good faith and merely wanted that they
should thoroughly discuss what P.W.1 had said at his parent's home.
A1 says that
the deceased did not respond but insulted them, saying
they were silly children and pushed them out of her house. She said
satans and that they would follow their brother. He says
that he lost his power of self-control. He stabbed her with a knife
he took out of his pocket and unclasped it. She got hold of the
knife in such a manner that it cut her on the hand. She let it go.
stabbed her again. A2 then said that they should leave and they left.
He says that he did not bum the house of the deceased. He
know how many times he stabbed the deceased because he was drunk and
angry. He was also confused and feared the deceased
very much. He
never intended to kill her. He says that at one time A2 caught him
and pulled him asking that they should leave.
A2 remained silent and gave no evidence in his defence.
There is overwhelming evidence that the community in
which the deceased lived genuinely believed that she was a witch.
When the rumour
circulated that she had killed the brother of A1 with
lightning, there can be no doubt that the two accused believed that
undoubtedly killed him. There is evidence by the
8 Chieftainess 'Masesu Mashili (P.W.2) that at the
meeting at her administrative
court the accused said that they would kill the
deceased. She says that when they came to her place for the first
time when they had
just chased the deceased and injured her on the
back, A2 did speak and said they would kill the deceased. At the
A2 said nothing but he was there with the A1.
P.W.2 says that at the meeting at the administrative
court of the senior chief A1 again said that he would kill the
is the Chieftainess of a village. She impressed me as
a truthful and honest witness who answered the questions put to her
in a very
satisfactory manner and without any hesitation.
P.W.1 corroborated the Chieftainess that A1 said that he
would kill the deceased. She said that at one time A2 said that he
help A1 in the killing of the deceased. She impressed me as
being an honest and a truthful witness. I believed her when she said
that all she said about the deceased was that she had insulted her
child/herdboy and threatened to kill him with lightning. Her story
was enough to convince the members of A 1's family that deceased had
killed their son inasmuch as it was generally believed that
she was a
witch. She had been accused of practising witchcraft on several
occasions in the past and even chased by some people. Despite
(60 years) she used to outrun the people who chased her.
9 For that reason it was generally believed that she had
The two accused said on two or more occasions that they
were going to kill the deceased. In other words they expressed their
to kill her in no uncertain terms before the two
chieftainesses when the matter was discussed. On the night in
question they decided
to go to the house of the deceased. They say
their intention was not to go and kill her but to discuss the matter
in a polite way.
This is clearly a lie. At broad daylight they went
to the home of the deceased but she ran away from them. They chased
her and hit
her on the back where weals were seen by P.W.2 and P.W.1.
How did the accused think that a person who ran away from them at day
because she was afraid of them could discuss a serious matter
with them at night? No, they did not go there in order to discuss
but to kill her as they had vowed to do so.
In any case the matter was already before the senior
chief for decision after hearing A1's witnesses. There was altogether
why the accused went to the deceased's home to discuss a
matter that was already pending before the senior chief. Furthermore
deceased had clearly shown that she did not want to talk to them
and had run away from them. They were clever because this time they
went to her place at night and knew they would find her in her house.
10 exactly where they found her and carried out their
fell intention of killing her. She
apparently had no chance to escape and the accused had
the chance to butcher her. They stabbed her five times on the left
all those wounds penetrated the heart. They knew very well
where the deceased was most vulnerable.
The accused claim that they were drunk. This is a lie.
There is no proof at all that they ever drank any beer. To show that
not drunk at all they surreptitiously went to the home of
the deceased, making sure that no person saw them. Having killed the
and set her house on fire they vanished into thin air. So
that when the people, including P.W.2 rushed to the home of the
when the alarm was raised the accused had left in a great
hurry and were not found near the burning house. Their arrival there
their departure were well planned. No drunken men would do that.
The accused invaded the deceased at her home and killed
her. The only reasonable inference to be drawn from the evidence is
set her house alight immediately after stabbing her. That
other people who hated the deceased are likely to have taken the
when the alarm was raised and set the house on fire is nothing
but mere speculation. So far there is no remote possibility that any
person other than the accused knew that she was going to be killed.
Only the two
11 accused knew that they were going to kill the
deceased and then set her house on
fire. Their intention was obviously to bum her body to
ashes. Fortunately villagers managed to take the dead body out of the
house. However the body had already sustained bums according
to the post-mortem examination report.
Mr. Teele, counsel for the defence, submitted that the
belief in witchcraft is not a defence. In this instance the belief in
prompted the accused to confront the deceased. He
submitted that on the evidence of A1 which is uncontradicted the
both accused with death. He submitted that that
would be covered by the provisions of Section 3(1) of the Criminal
Amendment) Proclamation No.42 of 1959. (See R. v.
Nathane 1974-75 LLR. 64)
I have already rejected the story of the accused. The
deceased was afraid of them, as she clearly showed this at daytime
ran away from them. To say that when the accused arrived at
her house at night she was bold enough to confront them and to push
out of her house and to threaten them with death by saying that
they would follow their late brother, is not only improbable but
mere pack of lies. They went there with the sole intention of killing
12 Their intention was to get rid of the deceased
because their case before the
was to be heard on the following day or some days later.
In Rex v. Nathane - supra- part of the headnote reads as
"The accused was charged with the murder of one
'Matsotleho Chaole, who was believed by the community to which she
and the accused
belonged to be a witch. Following a number of threats
by the deceased against the accused, the accused's wife and child
by lightning striking their home and the accused believed
that the deceased was responsible for their deaths. He complained to
chief and the deceased was ordered to leave the area. However,
she failed to do so and a few days later when the accused met her
chance she taunted him for his weakness and boasted of her own
supernatural powers. As a result the accused became so angry that
lost all power of self-control and struck the deceased several times
with a stick, causing her death. In his defence, the accused
that he was provoked into killing the deceased within the meaning of
the Criminal Law (Homicide Amendment) Proclamation 1959.
In construing the definition of provocation set out in s.4 (a) of
the 1959 Proclamation, there was no justification for
drawing any distinction between the loss of an accused person's power
on the one hand and his inability to form an
intention to kill on the other. The accused had acted under extreme
was sufficient to negative any legal intention to
kill the deceased and was accordingly guilty of culpable homicide
In the present case the two accused did not meet the
deceased by chance. They deliberately went to the home of the
deceased at night
after they had on several occasions expressed their
intention to kill her. In Nathane's case-supra-the deceased had
the accused long before his wife and child were
struck by lightning. She was ordered to leave the area. The accused
did not deliberately
attack her it was by chance that they met and
she again provoked him. It was a sudden provocation as a result of
which the accused
lost his power of self-control.
The present case is entirely distinguishable from
Nathane's case. The present accused planned to attack the deceased at
she was alone in her
14 house. This was the second attack because on the
previous day they assaulted her
but she escaped and outran them.
Mr. Teele submitted that the present case is not
different from that of Nathane - supra. That the fact that in the
the accused met the deceased per chance should not
change the applicability of its principles in the present case.
I do not agree with the above submission because the two
cases are altogether distinguishable from each other. In the present
the accused publicly expressed their intention to kill the
deceased on several occasions before the chieftainesses. They
went to the home of the deceased at night and carried
out their intention to kill her. The deceased had never openly told
she would hurt them or their relatives through witchcraft.
But in Nathalie's case the deceased had told the accused openly that
would hurt him and his family by witchcraft. She actually boasted
of her supernatural powers. Even after the lightning had killed
wife and child the accused never vowed that he would kill the
deceased. It was only per chance that they met and the deceased
boasted of what he had done and threatened to do the same to the
15 He submitted further that it is clear on the evidence
before Court (D.W.I)
that the accused had taken a lot of intoxicating liquor
when A1 suggested that they should go and talk to the deceased. He
that it is not the only inference that they went there to
fight. Such inference would not be permissible as it is inconsistent
the defence evidence. I have said that the way they planned the
murder of the deceased clearly shows that they were not drunk at
If they drank at all it was for dutch courage. I do not rely on an
inference that the accused went there to fight. They fought
previous day but the deceased escaped and outran them. However they
managed to inflict some injuries on her back. As she was
she screamed and pleaded with A1 to pardon her. Such a miserable
woman could not have said the insults and a threat
that the accused
would follow to death their late brother.
Mr. Teele submitted that perhaps we may be led to say
they should not have gone there as the matter was receiving the
the chief. But that would be an armchair reasoning and
quite unrealistic. He submitted that the proper approach would be one
by Holmes, J.A. in S. v. Delyn and another 1968 (4) S.A.
495 at p. 507 in these terms:
"What is needed in this cases is a down to earth
reasoning with a
view to ascertaining what was going on in the minds of
appellants. This involves looking at all the facts on the ground as
and allowing for human factors such as the robust truism
that, when the blood is up, reason is apt to recede; or the human
that, when intoxicating liquor has been imbibed too freely
sensitivity is apt to be blunted, so that a man may do things which
he would not do."
In the present case I do not have to do any
down-to-earth reasoning with a view to ascertain what was going on in
the minds of the
two accused. They confessed to the chieftainesses
that their intention was to kill the deceased. That is exactly what
He submitted that the approach of Holmes, J.A. above was
expressed in respect of the question of mens rea. He asked the Court
in mind, when intention is being investigated, when the
offence was actually committed as opposed to when the decision to go
deceased's place was taken. He submitted that the Crown has
failed to prove intention to kill.
17 I do not agree with the above submission. If a person
intention to commit an act which amounts to a criminal
offence and a few hours thereafter carries out the act, his intention
clear. The two accused vowed that they would kill the
deceased and subsequently carried out their intention and killed her.
come to the conclusion that they had actual intention to kill
the deceased. It was a clear case of dolus directus. The accused
their will to compassing the death of the deceased. They
meant to kill. The sole characteristic of this form of dolus is
to kill (see S. v. Bruyn 'N ander 1968 (4) S.A. 498
at p. 510 E-F).
I wish to quote at some length the facts in S. v.
Sigwahla 1967 (4) S.A. 566 at p.570 where Holmes, J.A. said:
"In the present case the salient facts are that the
appellant was armed with a long knife which he held in his hand; that
advanced upon the approaching deceased; that as he came up to him
he jumped forward and raised his arm and stabbed him in the left
front of the chest; that the force of the blow was sufficient to
cause penetration for four inches and to injure his heart; and that
there is nothing in the case to suggest subjective ignorance or
stupidity or unawareness on
part of the appellant in regard to the danger of a knife thrust in
the upper part of the body. In my opinion the only reasonable
inference from those fact is that the appellant did subjectively
appreciate the possibility of such a stab being fatal. In other
I hold that there exists no reasonable possibility that it never
occurred to him that his action might have fatal consequences,
was advancing on the deceased with the knife in his hand and as he
was raising his arm to strike and as he was aiming a firm
the general direction of the upper part of his body. It is true that
he had consumed six bottles of "Kaffir beer";
but this did
not prevent him from knowing what he was doing in following after
Simon and robbing him of money and clothing and in
responding to the
deceased's turning back to see what was going on."
It is true that the facts of the above case are not
quite the same with the facts of the present case, but they have some
similarities. There is nothing in the present case to
suggest subjective ignorance or stupidity or unawareness on the part
accused in regard to the danger of a knife thrust on the chest
especially on the left side where almost every Mosotho adult knows
that the heard is located there. They usually put a hand on the left
breast to feel their heart
19 pumping. A1 took a knife out of his pocket and
unclasped it. He then stabbed the
deceased five times on left breast penetrating the
heart. There was one stab wound on the right breast. As the learned
Appeal said in Sigwahla's case-supra-the part of the body
injured is relevant. During the stabbing the deceased was crying and
to the A1 to pardon her. The accused have not been honest
with this Court to explain how the deceased was held and restrained
escaping during the stabbing.
Mr. Teele submitted that there is evidence by the A1
that he had great emotional stress following the death of his brother
report about the deceased. This too should not be lost sight
of as it may constitute part of circumstances that negate intention
(See S. v. Arnold 1985 (3) S.A. 256). The intention to kill the
deceased was clearly stated by the two accused on several occasions
before they actually went to the home of the deceased at night.
The guilt of A2 is based on the principle of common
purpose. "Association in a common illegal purpose constitutes
- the actus reus. It is not necessary to show that
each party did a specific act towards the attainment of the joint
in the common design makes the act of the
principal offender the act of all. Such association need not be
express, it may be implied
from conduct. Becoming a member of a band with a common
intention to kill
coupled with presence at the scene of the killing would
attract liability. " (See South African Criminal Law and
I by Burchell and Hunt, p. 364)."
The participation of A2 in this case started when he
told some Crown witnesses that his intention was to help A1, his
cousin, in the
killing of the deceased. He accompanied A1 to the
administrative courts of the two chieftainesses of the area and
supported him not
only by his presence but by express intention to
kill or help in the killing. He actually went to the home of the
deceased at night
with A1. He did not stop his cousin from going
there at night, nor did he stop him during the stabbing of the
deceased. If he had
intervened by holding A1, the latter would not
have inflicted so many stab wounds. In any event he has not even
given evidence before
this Court to explain his non-participation in
the act He wants this Court to accept the evidence of A1 which I have
as nothing but a pack of lies.
I have come to the conclusion that the Crown has proved
its case beyond a reasonable doubt in the sense that both accused had
intention to kill the deceased because they believed that she
had killed A1's brother with lightning.
21 I find both accused guilty of murder in Count 1 and
guilty of arson in Count
My assessors agree.
J.L. KHEOLA CHIEF JUSTICE
15th December, 1999.
22 Extenuating Circumstances
It is trite law that belief in witchcraft is an
extenuating circumstances (See R. v. Fundakubi, 1948 (3) S.A. 810
(A.D) and S. v.
Dikgale 1965 (1) S.A. 209 A.D.). There is
overwhelming evidence that the deceased was a witch and the accused
that she was responsible for the lightning that
struck the brother of A1.
I find that there are extenuating circumstances.
Mitigation: 1. The accused are first offenders
A1 pleaded guilty of culpable homicide as a sign of
The charge has been hanging over the heads of the
accused forthe last six (6) years.
This is a very serous crime which was planned over a
couple of days and was carried out in the most brutal way.
23 Sentence: Nine (9) years' imprisonment each.
15TH DECEMBER, 1999
For Crown: Miss Maqutu For Defence: Mr. Teele
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