CRI/T/90/99 IN THE HIGH COURT OF LESOTHO
the matter between:
V MOKOROSI ABIEL CHOBOKOANE
Delivered by the Honourable Mr Justice WCM Maqutu on the
16th day of August, 2000
On the 23rd May 2000 this case commenced. Mr Griffith
was for the Crown and Mr Loubscher was for the accused.
Accused is charged with the crime of attempted murder:
In that upon or about the 27th January, 1997, and at or
near Ha Keiso, Lithabaneng in the district of Maseru, the said
unlawfully shoot Malekhoba Manapo Chobokoane with the
intention of killing her.
To this charge, accused pleaded not guilty.
The first witness was Malekhoba Chobokoane who will
hereinafter be referred to as Mrs Chobokoane. She was the wife of the
on the 27th January, 1999 when the events with which the
accused is charged occurred.
Mrs Chobokoane told the court that they were married on
the 6th April 1985. There are three children (all of whom are boys)
the marriage. Mrs Chobokoane told the court that the marriage
was happy, but it had problems before the end of a year. Before the
end of 1985 they had problems because of the love affair between
accused and a lady by the name of Thato. Mrs Chobokoane became aware
of this love affair towards the end of 1985. They had many arguments
once she had discovered this fact. There were daily arguments
this. Thereafter the court discouraged Mrs Chobokoane wife from
disclosing the details Mrs Chobokoane might have wished. The
was under the impression that the washing of dirty linen in public
should be kept to the minimum. Mrs Chobokoane said she found
photographs, but that was not pursued.
Theirs were fights that were verbal but which sometimes
led to physical violence. Mrs Chobokoane was at the insistence of the
confined to the most important incidents. On one occasion when
she had found photos of Thato among the things of the accused there
was an argument which led the accused to assault her. Because of the
courts interruption Mrs Chobokoane was not given an opportunity
say more about this matter. She only limited herself to saying
there were many quarrels which ended in fights.
Prior to the 27th January 1997, the most serious quarrel
was over the baptism of their child. About four months before,
decided without consulting her to go and baptise their
youngest child who was a baby. Accused wanted her to prepare the
go along with the arrangements the accused had made. They
had never discussed the matter because their relations were strained.
decided to take Che baby by force, Mrs Chobokoane held on to
the child and they began to pull the baby of six to seven months in
different directions. Eventually Mrs Chobokoane let the child go and
took the keys of accused's car and the jacket of the accused.
Chobokoane says she ended taking away the accused's jacket at the
time she was running for her life leaving the accused with
Mr Loubscher objected to this matter being pursued because it was
irrelevant. His objection was sustained, consequently
never told us what she felt was important. The court was of the view
that while family matters should be pursued,
this should be done in
At that stage Mr Loubscher disclosed that the accused
defence would be "sane automatism". The court noted that Mr
had not disclosed this defence earlier. The court called
both counsel to its Chambers and told both counsel that it had never
of such a defence in Lesotho before in a case of this nature.
Mr Loubscher assured the court that such a defence now exist in
and produced a judgment of Rex v Moteane CIV/T/5/97 that had
been delivered by my brother Lehohla J on the 8th May
2000, less than two weeks before. I was stunned and humbled because
does not always have paper, and it is short of paper for
months, its judgments are not often circulated. For this reason a
of this court often does not know what his brother judges are
doing, and the judgments of this court save his own.
On the 27th January 1997 in the morning, Mrs Chobokoane
opened the brief-case of the accused and found a letter. On its
written Thandi. She suspected the letter was written by
her husband to her husband's lover Thato, and that was what she was
for. She put the letter in her handbag and left. The letter
was handed in and marked exhibit "A". The letter was in
and the court ordered it to be translated. Mrs Chobokoane
read the letter at the place of her work. Around 10 or 11 a.m accused
to Mrs Chobokoane's office. Accused wanted her to come and talk
to him in private, but she should bring her handbag with her. Mrs
Chobokoane told him to come at 1 p.m. so that they could talk.
Immediately after the accused had left, Mrs Chobokoane asked from
boss for leave to go to Maseru, She got permission and went to see
her lawyer Mr Matsau with the letter. Accused who was also
school at Roma had spoken to her politely.
Later that day after she had come back home, accused
came at 7 p.m. and found her in the kitchen. Mrs Chobokoane was
carrying a baby
and was with a domestic servant. Accused wanted them
to go to the bedroom to talk. Mrs Chobokoane insisted that they
in the kitchen. She asked the domestic
servant to go out with the child. Accused shouted at Mrs
Chobokoane (after the servant had left). He asked her why he calls
rag. It came to her mind that she had called him a rag before
accused's sister, where Thato was staying because Thato's husband had
Accused was now close to her and her reply was that
accused should shoot her and then shoot himself because after that he
in sorrow. Accused at that time clapped her with an open
hand. Mrs Chobokoane picked up a chair and threw it at the accused
she does not recall if she succeeded.
As she was holding the back of accused's shirt, she
realized that accused automatic pistol had fallen on the floor. It
had been at
the waist of the accused. Accused had it on the waist
before the fight. Accused wanted to go for the pistol, so Mrs
him away from it to the door leading to the
passage. Mrs Chobokoane says she did so in order to be able to get
out of the house.
She ran through the a passage got out of the house
down the steps of the verandah and as she ran towards the gate she
fell in the
garden area. Accused came down the stairs holding his
pistol. As he approached, she heard some sound of the pistol, but it
shooting. Mrs Chobokoane told the court she does not know
what accused had done to the pistol as she is not familiar to
Accused then got to her, on the right side, he knelt
down next to her, at this time she was also kneeling, accused then
took her right
hand and raised it up. Shot her on the right arm
towards the elbow and the bullet went through.
After that the accused raised her left arm and shot it
near the armpit. Accused shot the arm from the right and the bullet
on the right. At that time accused had knelt on her left side.
Accused then rose up, and walked 3 paces, and she heard
him talking on the cell-phone say father, father I have made some
He was moving towards the house and she was sitting waiting
for him. A lady who was a neighbour came before the shooting, was
"Ntate Chobokoane, Ntate Chobokoane and accused said
get away, get away. After that accused entered the house. When
came back to where Mrs Chobokoane was, accused asked her to
go to the doctor. Mrs Chobokoane's reply was, how could she stand up
because accused had cut her hands. Her job was that of secretary,
hands which work for him and the children
Accused then got her into his vehicle and took her to
hospital. On the way accused asked Malikeleli Maphalla to help her.
had injuries on both arms. Her left arm was in fact
fractured according to X-rays. At Queen Elizabeth II hospital she was
had another would on the stomach. It was at the lower part
of the abdomen. The X-ray people said there was a bullet in the
The left hand is still numb. She no more can rub hard
when she washes clothes. The medical report was handed and marked
There was no objection. The firearm was also handed
in by consent. It is a CZ -83 7.65
automatic pistol serial number 04075 made in Czechoslovakia. It is
marked Exhibit 1.
Under cross-examination Mrs Chobokoane said she lives
with Bahlakoana the last born of her three children. Accused visits
on a regular basis. The two other children live with her
father and mother-in-law. Bahlakoana loves his father. Accused is
a good father.
The marriage began to be unhappy in 1985 because of
accused's lover Thato. Around 1988 to 89 they moved to their own
house. Mrs Chobokoane
did not like to live with her in-laws. As time
went on, their marital problems became serious. Sometimes she did not
even cook for
the accused. Their problems would go on for weeks.
There was no intimacy at night as a result of the problems. There
would be no
sexual relations. Mrs Chobokoane said she does not
remember how long this would go on. She stopped having sexual
with her husband between 1994 and 1997. It went
on longer, even when she got pregnant accused had forced her to have
with him. Mrs Chobokoane says she did not sexual
relations because accused was not asking for them. Accused no more
wanted them to
have sexual relations. He was not asking. He never
asked except the day she fell pregnant. She was unwilling that day.
fell pregnant they had sex though not on a regular basis.
Once every three to four months.
is correct that during Che month before the shooting they had had no
8 sexual relations.
Accused was a student at Roma University. He got the
diploma in Law before marriage. The BA degree during marriage. After
a degree he went back to the High Court, as Assistant
Registrar. Accused obtained his LL.B degree in 1997. Mrs Chobokoane
does not know if he became a Magistrate after the LL.B
degree, because they were no more living together.
She took the letter from accused's brief case, and left
for Roma, they no more went together. Accused did not ask for the
Roma. He was desperate to get the letter though he did not
say so. Mrs Chobokoane admitted, she was in contact with the husband
Thato (her husband's lover).
On the 25th December 1996 (on Christmas Day) Thato's
husband came to accused's home early in the morning. During their
talk with her
husband he said "Chobokoane I am giving you Thato
as your wife. She will be yours". Their conversation was brief
They were not exchanging words. Asked to explain, Mrs
Chobokoane said Ralengana arrived and said "Chobokoane I give
to be your wife. I am tired of seeking and chasing you. You
leave your wife in the house and start chasing after our wives".
That is the whole conversation.
Asked if her husband (the accused) was threatened. Mrs
Chobokoane said she is not sure if the accused was threatened that
day or before.
What is a fact
is that two policemen had come to her place of work and
complained that accused's father had complained that she was
somebody to have his son assaulted. Her answer was
"Gentlemen, old as you are, you have been sent from the Office
of Mr Makoaba
to come and look after the prostitution of the accused,
what do you expect me to do?" She took the photographs of Thato
had been in the possession of the accused. These were now in her
possession. The police looked at them apologised and left. The police
asked to be taken to the residence of the accused. They met accused
on the way, and she showed them the accused and left.
Mrs Chobokoane did not comment on the accused's version
concerning the letter on the day of the shooting, because accused
for the letter. Mrs Chobokoane denied accused ever asked
for the letter in the kitchen. Mrs Chobokoane repeated the third time
accused never asked for the letter. He did invite her to the
bedroom and she refused. Accused never went to look for her handbag
and for the letter. Mrs Chobokoane was emphatic that accused never
left the kitchen to go and look for the letter. Mrs Chobokoane
she ever switched off the main switch while accused was looking for
the letter. She denied she switched off the light four
says there was light in the kitchen all the time.
The only point of agreement was that accused's gun fell
at one stage. She agrees a scuffle broke out for possession of the
she tore the shirt of the accused and ran out of the house.
Mrs Chobokoane agreed they did not normally fight that
way, that was unique. Mrs Chobokoane denied that the accused did not
After the shooting, accused did go to light the house
which had not been lit. The woman Malekhethoa might have come before
the shooting. Mrs Chobokoane is not sure.
Mrs Chobokoane denied Thato's husband ever threatened
accused on Christmas Day. Mrs Chobokoane says Thato's husband said he
armed and even raised his hands. She added that she is not
sure if Thato's husband was drunk. She denied they talked outside the
house. Accused could not go outside as he only had a trousers on but
The next witness was Malikeleli Maphalla. Duly sworn,
she told the court that she was their neighbour. She had earlier
heard a gun
report. Later accused asked her husband to allow her to
help him take his wife to hospital. Mrs Chobokoane on the way to
told her to tell the world if she should die that accused
shot her when she reprimanded him. Accused did not say anything. PW2
Maphalla was followed by PW3 Trooper Badela who is his
sworn evidence said he took accused statement on the 27th January
then read it to the accused and accused signed it. The
statement was Exhibit "C" when it was handed in.
Mr Griffith for the crown asked for a postponement
because he had not been aware of the accused's defence. There was a
trial) that he was under the impression it would be
temporary insanity now Mr Loubsher has made it clear that the
would be "sane automatism". He would ask
for a postponement so that accused could be examined by a
psychologist or psychiatrist
that had been obtained by the Crown. The
case was adjourned and accused was ordered to submit to medical
When the case resumed, Dr N Olivier was the fourth
witness for the Crown. Duly sworn, he said he was a psychologist in
He held a Masters and Doctorate in Philosophy of
Orange Free State University. He had lectured at the Universities of
State and Stellenbosch. He had given evidence of a
psychological nature in divorces and criminal cases. He had had a
is psychology since 1990. From 1996 he was in full
time practice. Dr Olivier had examined and evaluated the accused on
the 27th June
2000. Accused had been referred to him by Mr Griffith,
the Crown Counsel. After that he prepared a report which he read to
and handed it in. This report was marked Exhibit "D".
Dr Olivier's conclusion was that accused was not acting automatically
when he shot his wife. If accused was "sanely automatic at the
time he shot his wife, he would have shot her indiscriminately.
the case before the court accused's behaviour was rational and
controlled. Accused absolutely knew what he was doing.
Under cross-examination Dr Olivier said when he compiled
his report he
had the benefit a summary of evidence already given in
court when he evaluated and interviewed the accused. The
they use for "sane automatism" is
personality decompensation. When a person suffers personality
compensation, it is where
a person has had build up of extreme
stress, which reaches a culmination point (unless he has adequate
emotional and stress pressure
reduction internal mechanisms). When
there are no internal coping mechanism, the dam of emotional stress
fill up to the brim. If
a person is in that state is involved in a
stressful incident that can act as at trigger mechanism, and the
emotional dam bursts.
In that state such a person does not know what
he is doing, his actions are automatic and he will not remember what
he was in that state. Actions of such a person are
typified by extreme and uncontrolled violence. Very few people ever
personality decompensation or "sane automatism. A
domestic scene can build up to an extreme level of stress in which
decompensation can occur.
Dr Olivier found signs of a tendency towards impulsive
behaviour in the accused. Accused also suffered from severe anxiety
Accused is normal because no person is perfect.
Normality is a relative term and its scope is broad. Every person has
doing a lot of antisocial and even illegal acts but there
are internal and external controls such as society's expectations of
manners, morals, conventions and laws in society. Accused,
because of his high level of anxiety is a candidate for personality
accused was sleep-walking, he could have loaded, a pistol and if he
very proficient in the use of a firearm, cock it and
fire it. These can be automatic actions. Dr Olivier says he differs
Weyer (who was his teacher) because (when accused shot
his wife) he shows himself to have inflicted injuries in a manner and
of the body that lead him to the conclusion that the accused
had executive and cognitive control of the shooting.
He has the highest esteem of Professor Weyer, but it has
to be noted that while most of their findings are the same, Professor
did not have the summary of the evidence given at the trial,
while he had it. If accused had not raised one arm of his wife, shot
it and then raised the next arm, but instead shot his wife all over
the body or the chest he might have agreed with Professor Weyer.
Personality decompensation is characterised by absence of executive
planned cognitive acts. Dr Olivier said he did not ask accused
his love for his wife, but it is a strange way of loving a person by
shooting both arms of a loved one. If what accused did
is the result
of personality decompenstion, then lawyers and magistrates in the
position of the accused cannot commit crime. Dr Olivier
he could be wrong but he was sure he was right.
Answering questions from the court Dr Olivier said the
terms used and the theory of psychology change all the time. In the
decompensation was regarded as temporary insanity.
Today even the term insanity is not used any more in psychology. The
in the use of words. Law has its own definitions. Mental
disease comes from a model of characterisation of mental states. The
model differs from the psychological one. Both models are
changing all the time as knowledge and classification of
conditions of the mind develop.
The Crown closed its case.
The defence called the accused, who gave sworn evidence.
Accused said he is 43 years old. He had been married to his wife for
From the beginning, it was never a happy marriage. They
married in 1985 but by 1986 he had a love affair with Thato, shortly
their marriage. Entering into an extramarital affair made
things worse. He did not intend to divorce his wife, the love affair
came as an accident, it was not intended. Accused said the idea of
terminating his relationship with Thato came to his mind. Thato's
husband was told of this love affair by accused's wife.
On the day Thato's husband came to accused's home he was
in the bathroom. Thato's husband invited him outside, so that they
talk, as he was not armed. When they got outside, Thato's
husband said many things (as he was drunk) he said accused should get
from his wife otherwise he would kill him. He took the threat
seriously as Thato's husband was a criminal. Accused already had a
licensed fire-arm. Up to that time he was not in the habit of
carrying a fire-arm. Accused told the court that from that day he
carried a fire-arm in case Thato's husband attacked him.
Accused said his studies were difficult and stressful
because of his domestic
situation. His mind was not at ease when he was
studying. On the 27th January 1997 his wife had tried the door while
he was in the
bathroom. It was locked, he knew it was his wife
because she is the only one who used to do so. He then went to Roma
where he was
studying together with the children who attended school
there. When he got to Roma, he discovered that his letter was missing
his brief-case. What was there was only the envelope. He was
afraid that his wife would give the letter to his lover's (i.e
husband. He was afraid of Thato's husband. He went to his
wife's office and asked for the letter. His wife said he did not know
it and asked him to leave as she was busy. They would meet
during the lunch hour.
At this time accused was so stressed and frightened that
he attended only a few of the lectures. He came down to Maseru and
his wife at home at about 6.30 p.m. He found her in the
kitchen. Accused asked her to come to the bedroom but she refused. He
to ask her about the letter, and she told the maid to get out.
Accused asked his wife to bring back the letter but she denied
of it. Accused said his wife should bring the letter that
belongs to a rag. His wife asked him why he said that, accused did
reply because he knew, she had said that to his own sister.
He asked her to search for the handbag but she refused.
Accused said he would search the whole house. There was no light on
switched the light on. His wife switched off the light and
said she was the only one who paid for the electricity. Accused says
switched it on, she switched it off. Accused says
he slapped her. She lifted the chair trying to hit him
with it. He blocked the chair. As he did this, his cell-phone and
down. His wife went for the gun, accused stopped her as
he was afraid she might shoot him with it. Accused says he only
that they fought over the gun. From then on, he does not
remember anything. They had both left the chair the moment the gun
Accused says he only remembers someone calling his name
and that he said go away. She saw his wife kneeling on the ground
the car. It was as if he was waking up from a deep sleep. He
was standing next to his wife near the car. She was bleeding all over
the body. He tried to think of what had happened, he found he did not
know what had happened. He suspected that because his wife
bleeding and he had a gun in his hand, he must have done something
Accused then 'phoned his father, but found his mother.
He told her that he thinks he must have done something terrible. He
his wife to the car. He went to look for the children
next door. When he could not find them, he drove off. On the way he
a neighbour to support his wife. After taking his wife to
hospital, he went to the police where he handed in his gun and said
had shot his wife. He continued to go for lecturers. Two weeks
later he was told to appear before a magistrate for a remand.
Accused said he was frighted that day and sweating. He
was angry and stressed. He got even angrier when his wife kept on
off the light, to stop him looking for the letter. When he
saw his wife bleeding he was
remorseful, frightened and afraid she might die. He
never thought of shooting his wife. Listening to his wife giving
says this was the most serious incident in their
marriage. They are on good terms now even though they are now
In cross-examination accused said he never had problem
with his studies. He never failed any subjects between 1995 and 1997.
shooting incident had no effect on the examinations he wrote at
the end of April 1997, about three months later. He was Assistant
Registrar from 1989 to 1997. He started sitting as a magistrate in
September 1997. His career had been in law and he has studied
extensively. He suffered stress because of family relations and
Accused says his relationship with Thato began in 1986
after he had married his wife in 1985. Accused says he felt betrayed
not elaborate by saying how. Accused says he tried to sort
his marital problems without success. He agrees with the suggestion
he thought having an affair was the answer to his problems. This
led to stress because he could not cope because the marriage was
still there. The affair with Thato still continues even after 14
years. Even if he had stopped the affair, his marital problems would
continue. His solution to his marital problems was more involvement
in the love affair. His wife found out about the love affair
1994 and 1995 before that she was only suspicious. Thato's husband
had been jailed between 1990 and 1991.
He learned from Thato that his wife had told Thato's
husband of their love
affair. The love affair still continued, fear of Thato's
husband was not a major factor. Accused corrected this statement and
the fear of Thato's husband was a major factor. He could not
stop the affair because his wife would still ill-treat him. He was
in 1997 two weeks later the shooting incident occurred.
He never attempted to terminate the love affair with
Thato because he never treated it as important, his marriage was more
The fear of the husband (although it compounded his
problems) did not stop the affair. Accused disagreed with counsel
that had he
stopped the affair, that would remove the stress because
somehow it lessened the stress in the family in him to be direct.
would not help.
In his view, the incident of physical violence in the
kitchen was the most serious they had ever had. In 1994 when his wife
her from looking for his passport he slapped her, and
she slapped him back. In 1996 they had fought over the baptism of
He had warned her of his intention and the date but she
said nothing as they were not on speaking terms. When he wanted to
baby himself, she stopped him physically. She then took the
keys of the vehicle and his clothes. Eventually he took the baby to
parents' house to wash him there.
The incident over the passport according to accused led
to much more, he was not given an opportunity to explain. It was not
that he assaulted her and she smashed the windscreen of the car.
In fact they had spent over sixteen hours
with the wife carrying a stone threatening to smash the
car. She was still being served with refreshments while he could not
for fear that she would get a chance to smash the car. In the
morning of the following day, the wife made as if she was going away.
That was when she smashed the windscreen of the car after evading
On the issue of being stabbed with a knife accused said
the wife did not stab her. She took out a knife from the drawer at
they were squabbling over the telephone. During the struggle
over the telephone, he had a slight cut in the hand. He cannot even
remember where he was cut. She did not bother when he was bleeding.
He completely forgot about the knife incident.
About the intention to divorce his wife that the letter
discloses, he was not serious. He was lying to Thato, it was a love
Accused said he had forgotten about telling the
policeman the full details. In fact his wife had refused with the
letter and added
that accused had rather shoot her. He does not
remember following her and shooting her. He only told the policeman
what he thought
happened, not what actually happened. At the time he
felt he would rather take the blame. He did so expecting the
statement to be
used in evidence against him. He did not shoot with
the pistol often, he had shot 3 to 4 times before. He had received no
in the use of fire arms. He disagreed with counsel when
counsel says he shot his wife deliberately.
The second witness was Professor Almero Weyers. In his
sworn testimony he told the court that he was Professor of psychology
University of the Orange Free State. He obtained both the MA
and Doctrate in Psychology at the University of Orange Free State. He
started lecturing in psychology in 1965. He has written extensively
on the subject, written a book on Developmental Psychology and
evidence in many criminal trials after evaluating people. He appears
in courts on the average 15 times a year. Professor Weyers
evaluated the accused on the 11th May 2000 after Mr Loubscher
(Counsel for the accused) had referred the accused to him, and
prepared a report. After reading the report, it was handed in and
marked Exhibit "E". He said their job is to help the
not to give evidence favouring any side.
People differ and they handle stress differently.
Problems in love affairs, fear of a husband and an unhappy marriage
can lead to
personality decompensation in some people, not all.
Anxiety makes a person a candidate of personality decompensation. His
divided into ten degrees. At the 10th degree a person is
fully decompensated. At the first degree decompensation is beginning.
the tenth degree of the scale he uses a person will not know what
he is doing. At the first degree a person might know what he is
doing, but he will not be able to stop himself. There is no way of
knowing, we can only take a guess. He compiled the report without
knowing where accused's wife was shot. The more decompensated a
person is, the greater the violence. There are no hard and fast
When decompensation takes place, a relatively peaceful person
like the accused starts acting violently. In evaluating a person, you
look at the
whole picture. Decompensation does not deprive a person
of the ability to shoot.
The shooting of the hands may be symbolic, because it is
the hands that hand over the letter. There is little control,
out of character when a person shoots the person he
loves most. Accused was angry and emotional. There was a build up of
and frustration, it came to a point where accused could
not handle it.
In his field, they use the use no scientific measuring
instruments, they use words, concepts, and ideas to delve into the
mind - with
these they build patterns. Memory is a very difficult
thing because a person can lie. There were no indications of lies in
He would say accused was in some degree of
In cross-examination, the Professor said non-aggressive
people commit the most serious murders. For example shoot a victim
to 28 times. Uncontrolled violence such as strangling and
cutting the victim all over the body. There are two approaches,
taking all the facts or looking at the nature of the violence
and the personality of the accused. He belongs to the second school
that looks at the nature of the violence and personality of the
accused. In personality decompensation the action is automatic and
there is no plan. Where there is no personality decompensation there
is cognitive executive action, less emotion, planned action
perpetrator remembers very well what he has done. Loss of temper is
part of personality decompensation. In psychology like
all sciences which deal with human behaviour two plus
two is not always four. Lying is an attempt to create an amnesia. In
the shooting was irrational.
Answering questions from the court, the professor said
law used to see personality decompensation as insanity. To fall into
of madness, it should take at least six months. Fifty or
sixty years ago, personality decompensation would have been
insanity. The professor went so far as to say
personality decompensation might have been classified as temporary
insanity a little
over ten years ago.
The defence then closed its case.
Before addresses began, it was clear that the court
could not even determine the question of guilt before it had
the accused had the capacity to commit crime.
The term "sane automatism" is new but
automatism is not. In the past, it was kept quite distinct from
insanity. These days
we hear of "insane automatism" and
sane automatism. In R v Ahmed 1959(3) SA 776 at pages 780 to 789 we
find that automatism
has its theoretical base in English law. In
practice such a defence (as will be shown later) did not often
succeed in practice. It
will be shown that in the application of
English and Scots laws, there is a clear reluctance to acquit sane
offenders who plead automatism
when they have committed criminal
Automatism has received a rough reception in Scotland.
General Clyde (sitting with Lord Justice Clerk Grant and
Lord Carmont) in the case of HMA v Cunningham 1963 SLT 345 was faced
a special defence (after a plea) of not guilty that the accused
"was not responsible on account of the incidence of temporary
dissociation due to epileptic fugue or other pathological condition".
Lord Justice General Clyde at page 346 to 347 said:
"As I see it the so-called "special defence"
in the present case constitutes an attempt to extend the categories
the special defences in order to include a new one, namely,
something short of insanity which would lead to acquittal. For this I
can see no warrant in principle. On the contrary as has ben pointed
out more than once in previous cases such a novel type of defence
would be a startling innovation which would lead to serious
consequences so far as the safety of the public is concerned. After
safety is one of the considerations to which we have to have
regard when we are asked to sanction a complete acquittal if a
of this nature is sustained by the jury on facts....
It follows that if the present so-called special defence
is to be made into a true defence, as understood in the law of
it would require to include an averment of insanity."
Scottish case law had up to 1978 followed the negative
attitude of HM.A v Cunningham towards towards automatism. Gordon in
Law 2nd Edition (3-27) at page 80 to 81 found this rigid
attitude towards automatism still unchanged by 1978.
English law like Scottish law was not willing to let
people who had
committed offences go free because of automatism. They
would rather keep them in lunatic asylums and prisons for as long as
please Her Majesty the Queen to keep them there. The case of
R v Burgess  2 All ER 769 classified sleep walking which had
in a crime of violence as insanity within the M'Naghten
rules. Diabetes and its hyperglycaemia which had been made worse
and depression was classified under diseases of the mindSee
R v Hennessy  2 All ER 9. That meant it was legal insanity.
Lane CJ sitting with Rose and Pill JJ went further and dealt with
exacerbating factors at page 14 as follows:
"In our judgment, stress, anxiety and depression
can no doubt be the result of external factors, but they are not, it
us, in themselves or separately or together external facts
of the kind capable in law of causing or contributing to a state of
They constitute a state of mind which is prone to recur.
They lack the feature of novelty or accident, which is the basis of
distinction drawn by Lord Diplock in R v Sullivan. It is contrary
to the observation of Devlin J to which we just referred in Hill
In English law "disease of mind embraces both
organic and functional disorders of the mind, but excludes external
as drugs, hypnosis and concussion".Blackstone's
Criminal Practice 1998A3.7 at page 7. Although there is on the
the onus of proof to prove insanity, actually in practical
terms the special verdict was a calamity. "Until recently, even
possibility was a largely theoretical one since the consequences
of an insanity verdict were so unattractive that seldom would an
accused seek one." Blackstone's Criminal
Practice 1998. A3.12 at page 42. However Lawton LJ in
R v Quick  3 All ER 355 GH said English law is in a quagmire
Returning to automatism in the law of South Africa
before the case of S v Chretien it seems automatism was already
In R v Ahmed at page 780BC Marais J said:
"It is, as has been laid down in the case of R v
Mkize 1959(2) SA 260(N), a good defence to any criminal charge that
when committing the act complained of, was in an
unconscious state, having neither judgment, will,purpose, nor
reasoning. If the
story of the accused in the present case is true,
namely, that he has no recollection of the occurrence and that during
existence he had no desire or motive to kill or assault
the complainant, then he was in such an unconscious state at the
moment, and no criminal liability attaches to him. That is
It will be observed that at that time, the Lesotho
Criminal Law (Homicide Amendment) proclamation 43 of 1959 had not
South Africa at the time seems to have applied English
case law in a way the English would not have. South African judges
take into account the deterrence aspect of English mental
law. They emphasised logic and clarity to the detriment of the
dimension. R v Dhlamini 1955(1) SA 120, the accused who
had stabbed the deceased in a nightmare could not be guilty of either
or culpable homicide. There are no grounds in law for saying
automatism of this kind (which is not of an insane person) is foreign
to the theory of our law. It seems to have
a long history in English law, see Gordon Criminal Law
2nd Edition at page 74 where he refers to Sir JF Stephen.
History of Criminal Law (London 1883) Vol.11 page 100 dealing with
Today this statement appears to have been the author's
opinion together with other statements that were made in judgments
not to reflect the law accurately.
In Bralty v A.G. Northern Ireland  AC 386 at page
410 Lord Denning observed that "it is apparent that the category
acts is very limited. So limited indeed that until
recently there was hardly any reference in the English books to the
defence of automatism." In R v Sullivan  2 All
ER 673 at page 677 HI. Lord Diplock and four other Law Lords in the
of Lords were very unhappy with the meaning of insanity and he
"The nomenclature adopted by the medical profession
may change from time to time...I agree with Devlin J in R v Kemp
All ER 249 at 253 that "mind" in the M'Naghten
Rules is used in the ordinary sense of mental faculties of reason,
and understanding. If the effect of a disease is to impair
these faculties so severely as to have either to have consequences
to in the latter part of the rules, it matters not whether
the arteriology of the impairment is organic, as in epilepsy, or is
or whether the impairment itself is permanent, transient
and intermittent, provided it subsisted at the time of commission of
act. The purpose of the legislation relating to the defence of
insanity ever since its origin in 1880, has been to protect society
against the recurrence of the dangerous conduct.".
The unsatisfactoriness of the classification was
regrettable but it was felt a change
would have to be made by Parliament.
It should now be clear that personality decompensation
falls under insanity according to the current legal set-up in
Professor Weyers and Dr Olivier say half a century
ago it was regarded as insanity. If it is of a very short duration,
it is temporary
insanity. Both Professor Weyers and Dr Olivier are in
agreement on this point. In fact Dr Olivier says even the term
no more used in psychological circles
When we deal with "sane automatism" we have to
note that (according to Snyman Criminal Law 3rd Edition
page 222) it is dealt with in two ways, namely the Separation
doctrine approach which descended from English and which dominated
South African legal thinking up to 1970 and the General Principles
Approach which descended from S v Chretien 1981(1) SA 1097. Lesotho
with its Criminal Liability of Intoxicated Persons Proclamation 60 of
1938 and the Criminal Law (Homicide Amendment) Proclamation
1959 follows English law thinking.
The point of departure in which South African law took a
decisive turn on capacity to commit crime was the case of S v
SA 1097. In Rex v Tsitso Matsaba CRI/T/18/89
(unreported) which was decided on the 1st June 1990,
Lehohla J disapproved of the S v Chretien which had in fact had been
cited in argument. He quoted AG for Northern Ireland
 3 All ER 299 at pages 304 and 314 where Lord Goddard and Lord
Denning stated the law of
England. These cases stated clearly that drunkenness
does not affect a person's legal capacity to commit crime. In
the use of S v Chretien in Lesotho at page 27 of Rex
v Tsitso Matsaba Lehohla J said:
"Our law governing criminal liability of
intoxicated persons is to be found in Proclamation 60 of 1938 which
is in keeping with
the English authorities...."
This judgment of Lehohla J was confirmed by the Court of
Appeal of Lesotho in Tsitso Matsava v Rex 1991-96 LLR 615. The case
v Mosuoe Moteane CRI/T/5/97 (unreported) differs from this one
in the following respects:- First according to both Professor Weyers
and)Dr Olivier "sane automatism" of the kind accused had
(which they call personality decompensation) would have been
as temporary insanity fifty or sixty years ago. Secondly
this fact was not brought to the attention of the court that day . In
the law has not changed, therefore personality decompensation
should still be temporary insanity. The concept of absence of
liability for intoxicated person as found in S v Chretien
has widened the gap between Lesotho and South Africa. S v Nursingh
SACR 331 being based on S v Chretian cannot be an authority
in Lesotho because of Lehohla J's judgment in Rex v Tsitso Matsaba.
It will be observed that Scott JA of the South African
Supreme Court of Appeal said in S v Henry 1999(1) SACR 13 at page 20E
personality decompensation results in
"Criminal conduct arising from argument or some or
other emotional conflict is more often than not preceded by some sort
Loss of temper in the ordinary sense is a common
occurrence. It may in appropriate circumstances mitigate, but it does
On the other hand, non-pathological loss of cognitive
control or consciousness arising from some emotional stimulus and
in involuntary conduct i.e. psychogenic automatic
automatism, is most uncommon."
Scott JA was in S v Henry was rescuing South African law
from the legal quagmire that was developing. Accused cannot claim
decompensation merely because he lost his temper and did
a stupid thing like any other normal
For purposes of this case, I will assume "sane
automatism" of kind S v Chretian might be the law of Lesotho,
is not. The case of R v Ahmed 1959(3) SA 776 is similar
to this one in some respects because it involved violence on a woman.
had stabbed a woman (almost fatally). Therefore he was charged
with attempted murder. It differs from this one because Ahmed had
"Intelligence quotient somewhat below normal" according to
medical evidence. That was also the impression he gave to
See page 779 of R v Ahmed. What is missing is an event that triggered
the black-out in Ahmed's case. He had earlier only
said he was
unwell, while accused did not say so.
The case before me is in some ways similar to S v Arnold
1985(1) SA 256. In Arnold's case, accused was besotted with his wife,
the case before me accused is not, he is in fact having love
affairs with other women. In Arnold's
case, there was accused's mother-in-law who was ruining
the marriage of accused and his wife and had disturbed the harmony
accused's wife and accused's son by his former marriage. The
similarity is that both Arnold and this accused were in the habit of
going about armed with a pistol. Both claimed to have shot their
wives as a result of a quarrel which is alleged to have triggered
There is a background of failure and harassment in
Arnold's case. In S Nursingh 1995(2) SA CR 331 there a history of
just as there is in S v Moses 1996 SACR 701. All these
cases are accompanied by extreme violence that has no plan or
In accused's case he claims to have been a victim
of his wife's unpleasantness, yet he began a love affair at the
beginning of the
marriage of which (according to accused) the wife
became suspicious almost when it started. Relations deteriorated
because of it.
Indeed on the day accused shot her, the letter he had
written to his lover was the immediate cause of the confrontation.
Although the onus of proof had always been on the Crown,
S v Trickett 1973(3) SA 526 had emphasised "universal sanity in
sense of the accused being doli capax being presumed. Whoever
wishes to rely on a deviation from this general norm, has to
it on the balance of probabilities: it is only then that
the prosecution has to disprove the deviation from the norm see
J at page 530A of S v Trickett. By the time cases such as S v
Kok 1998(1) SA 532 were heard it was now being emphasised that
the onus of proof is on the State, the prosecution is
assisted by the natural inference that (except in
exceptional circumstances) sane persons engaging in
conduct which gives rise to criminal liability do so consciously and
It is therefore necessary for the defence to lay a
proper basis to upset this inference. Between 1985 and 1996 there had
been a tendency
to wrongly over-emphasise the onus on the State
without emphasising the position of strength from which the State
In this case before me two psychologists gave evidence.
Professor Weyers who classified accused as a case of personality
or "sane automatism" never had the benefit
of the summary of the evidence from crown witnesses. Dr. Olivier did
incorporated the evidence of accused's wife and other Crown
witnesses in his report. Professor Weyers only observed the accused
evidence in court. Both psychologists agree that accused
violence was not absolutely extreme and senseless like most cases of
decompensation where the emotional dam bursts. Professor
Weyers says cases are never identical, accused was essentially
and non-violent, but he became violent that day.
Both psychologists readily conceded that although they
believe they are right, they could not exclude the possibility of
error. After all, accused might mislead them although their
tests reduce the possibility because they cross check within their
There are no scientific machines, everything is interviews
which produce data which forms patterns from which conclusions can be
reached. Dr Olivier says accused never had a black out, his actions
were deliberate and carefully planned that he should not kill
wife but only wound
her. Accused lifted the first arm and shot it, then
lifted the next arm and also shot it. He did not shoot his wife all
over as cases
of personality decompensation often do. Professor
Weyers confirmed that this is often the case as he remembers in one
the accused had shot his victim twenty six times. In
psychological cases two and two is not always four, because many
into play and people are not often the same.
An examination of the information Professor Weyers
extracted from the accused shows it was far less. Even Dr Olivier did
not get as
much information as he might have got because the court
stopped the wife from washing as much dirty linen in public as she
have wished. The reason was that Mr Loubscher,did not reveal
what the nature of his defence was initially. For an example, we were
left without knowing why accused's wife had to run for her life while
they were fighting over the baby on the day of that baby's
The Runciman Royal Commission on Criminal Justice Report
CM2263 HMSO (1993) paragraph 70 states:
"Expert witnesses must expect to have their
evidence tested in examination and cross-examination in the same way
as other witnesses.
Serious miscarriages of justice may occur if
juries are too ready to believe expert evidence or because it is
in court. We believe that the overall aim in
this area should be the objective presentation of expert evidence in
a way which jurors
who are not themselves expert can follow.
I can only congratulate both Professor Weyers and Dr
Olivier for giving a
complete, wholesome and fair picture in their evidence.
They made a difficult topic compehensible to us.
I saw and heard both Mrs Chobokoane and the accused. I
was impressed with Mrs Chobokoane and that she was telling the truth.
the court that her marriage was initially happy, but the
accused poisoned it with her love affair with Thato. She did not hide
relations deteriorated so badly that they did not speak to each
other for weeks and did not have sexual relations for up to four
months sometimes. Accused claimed his wife was at fault and that she
betrayed him without saying how. He said his love affair happed
accident. Which could be plausible, but sometimes said it was because
of his wife. Nowhere does he seem to have found it necessary
terminate the love affair to preserve his marriage. Yet he expected
the wife to be happy with being compromised that way.
Accused lied that he was threatened for the first time
on Christmas Day of 1996 when he must have been threatened much
husband's words show it was earlier. On Christmas
Day the husband of Thato went to accused's home to tell him that he
and that he had given him Thato to be the accused's wife.
He would not more bother the accused as he had been doing earlier. I
Mrs Chobokoane on this and not the accused.
On the 27th January 1997 I also believe Mrs
Chobokoane that accused never asked for the letter either at Roma or
at home. At Roma he was told
meet at Lunch but when accused got home in the evening
they quarrelled even before accused could get very far. The reason
Mrs Chobokoane had gone and called accused a rag to
accused's sister. Mrs Chobokoane was in a bad mood, even before
get very far with their conversation, she said accused
should shoot her because she had heard he wanted to shoot her. The
of expecting his wife to give her the letter are there
but the impression one gets is that the accused could not expect the
of the type Mrs Chobokoane was to give him the letter. It is
also unlikely though possible that accused could expect to find the
letter in the house if he believed it was in the house.
I note that accused avoided to refer to the fact that
his wife had said he should shoot her when he narrated the sequence
It is because this was incompatible with his story that
they fought over the switching on and off of the lights in the
accept that the kitchen was lit at the time of the fight.
What was not lit was the rest of the house. This was lit by the
after the shooting.
I do not believe the accused when he says he had a
black-out. He did not, I accept that he lost his temper and did not
intend to kill
his wife. He deliberately shot his wife, one arm after
another with the intention only of wounding her. When he finished he
her to hospital and went to make the statement to the police. I
note that he did not say he had a black-out. I also note and believe
it is possible for a person to neglect to say what he might have said
forgetfulness or for one reason or the other. In Molefe
v Mahaeng 1999(1) SA 562 at page 569 Melunsky JA noted that though
did not mention the black-out to the nurse and the doctor
who attended to him there was evidence aliunde that it did occur. In
case there is nothing of a factual nature to lead me to the
conclusion that accused's version of a black-out is probable.
This is a case of domestic violence. It is in some
respects similar to the case of S v Henry 1999(1) SACR 13 which was
the South African Supreme Court of Appeal. In that case
the accused had before making a statement before the police seen his
In this case accused one year four months later was seen by
a psychologist sent by his counsel. In S v Henry the accused had
an even more violent senseless killing than this one
because of shooting both his former wife and her mother three times
scrutinising the evidence, the trial court did not find
any "sane automatism. As I have already said this wounding was
with care and caution so that a death does not occur. He
exaggerated a small cut with a knife held by his wife as a stabbing
a knife to psychologists.
I watched the accused's demeanour, and I was not
impressed with it, he tailored his evidence to suit his circumstances
and was false.
He claims that he had just been threatened by Thato's
husband when he had been threatened some time earlier and the police
investigated the matter. On the Christmas Day of 1996 when
Thato's husband had come to say he has given up, he can have Thato,
claims he was threatened, something his wife (whom I believe) says
untrue. When he really meant to divorce his wife he
claims he was lying to Thato in the letter! He claims to have loved
his wife and
that he still loves her. Running around openly with
another woman and not finding it not necessary to discard her and
make up and
mend relations with a loved one is a strange way of
loving a wife. Yet the most improbable affairs of the heart can be
where a person is the type which only considers
A law abiding man (in cases of domestic violence) can
take liberties with his wife, in the belief that she will not press
for the sake of the children whose breadwinner he is. An
angry person might be under the belief that all will be forgiven.
the wife who is not a compellable witness has chosen to
Accused is lucky that his defence of "sane
automatism" has not succeeded. Had it succeeded it might have
been open to me
to consider whether he was not a case of temporary
insanity. I say this because both psychologists agree that
over fifty years ago was a category of
insanity. The terminology has changed but the Laws of Lesotho have
not. I have been assured
by both psychologists that cases of
personality decompensation are rare. The court in S v Henry was also
assured that the personality
decompensation is a very rare
Having rejected the evidence of a black-out, since the
actus reus is undisputed and there is no other inference save that
of assault with intent to do grievous bodily harm has
Mr Griffith did not press for conviction of attempted
Stand up accused. I find you guilty of assault with
intent to do grievous bodily harm.
My two assessors agree.
WCM MAQUTU JUDGE
After hearing addresses in mitigation
Accused is sentenced to twelve month's imprisonment or
in lieu of imprisonment, a fine of M2000-00. The firearm is forfeited
Crown. Accused is given 30 days to pay the fine.
For the Crown : Mr Griffith For the accused :
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