HIGH COURT OF LESOTHO
TSOEU 'MATSOEU TSOEU
by the Hon. Mrs Justice A. M. Hlajoane on the 2nd May,
accused appeared before me charged with the crime of murder. It being
alleged that on or about 1st December, 2002 they both
with intent to kill, did assault one Lipalesa Theko and inflicted a
knife wound upon her from which she died at
Queen II Hospital on the
9th day of December, 2002.
accused pleaded not guilty to the charge in accordance with counsel's
instructions and such pleas of not guilty were
entered. The Crown led evidence of eight (8) Crown witnesses. The
first witness, Rethabile Theko who happened to be
daughter, told the Court that accused before Court were her father
and grandmother. To use her own words, she referred
to accused 2 as
the mother to her father, accused 1.
fifteen year old girl in her Form A class, proceeded by showing that,
as she was playing at home with others on the 7th
December, 2002 she
saw people gathered at one place. She approached the crowd and found
both accused assaulting the deceased. Accused
2 was insulting the
deceased, calling her a "Letekatse" and also assaulting her
with a shoe, whilst accused 1 was kicking
the deceased with his
shoes. The accused left the deceased on the ground breathing with
much difficulty. Deceased was taken in
a wheel-barrow to her maiden
home by his brother, Thabo. She was taken in police van to hospital
as deceased's brother had called
to P.W.1 the deceased was on that day coming back home from a clinic
from bandaging injuries she had sustained the previous
month the 18
November, 2002. The witness showed that accused 1 had during
November, 2002 stabbed the deceased with a knife at the
this witness did not witness the stabbing she nonetheless showed that
she came to know that her father had followed the deceased
to a shop
and stabbed her with a knife. She heard about this as deceased's
mother 'Matang-fusi asked the deceased as to what had
happened to her
as she came home carried in a wheelbarrow. The deceased had come
home brought by some two men Rapholoana and
Bahlakoana who claimed to
have found her fallen on the way crying, and had sustained 3 stab
to questions put to her by the defence, P.W.1 pointed out that
accused 1 used to drink a bit too much and was in the habit
assaulting the deceased whenever he was drunk. That was the reason
why the deceased was no longer staying with accused 1 but
her maiden home. P.W.1 also had left accused at the rented flat and
stayed with the deceased. It was after the witness
had indicated to
the Court that she did not know the cause of the fight in December,
that the Defence revealed that it was because
the deceased was
refusing to hand over accused 1's hat.
Pontso Theko told the Court that she was related to the deceased,
their mothers being sisters. She too stayed at Mazenod Ha
was aware that the deceased had left home for the clinic to bandage
her wounds on the 7 December, 2002. Before
deceased left for the clinic she had asked the witness to meet her
half way on her way back as she feared accused 1 who had
to kill her.
P.W.1, this witness too never witnessed any stabbing by accused 1.
According to P.W.2, sometime in November of that year,
arrived home having sustained three stab wounds at the back. Accused
1 came in, as the deceased was telling them that
the deceased had
stabbed her. The witness had seen accused 1 come following the
deceased to her home asking if his victim had yet
not died. P.W.2
showed that she heard accused 1 claim that he was the one who had
stabbed the deceased, and further said he wanted
to stab the deceased
to death, but failed to stab her further as P.W.2 and those in her
company raised alarm by making noise.
P.W.1 who had said her attention was drawn to the accused and
deceased's fight by seeing people gathered at one place, P.W.2
that she went with P.W.1 and one Kananelo to go and meet the deceased
from the clinic. They had met the deceased and accused
1 on the way
pointing fingers at each other whilst also insulting each other. The
deceased had sat down, maybe to rest, and accused
assaulting her with a shoe on the head which
taken from deceased's foot. It was a three quarter heeled shoe.
was thus being assaulted, P.W.2 heard deceased insult accused 1 by
his mother. It had not been explained where accused 2
came from, but
the witness pointed out that accused 2 also came and with the other
shoe from deceased's other foot started assaulting
the deceased with
it. Accused 2 had first asked accused 1 if he was pleased with the
deceased, a prostitute, insulting her (accused
2). Accused 1 started
kicking the deceased with his boots and when all these happened, the
deceased was still sitting down, but
fell to the ground as she was
only this witness who said she saw accused 1 not only using his hands
and shoes to assault the deceased, but that accused
1 even threw
stones at the deceased. And that when all these assaults took place,
the deceased had been lying on her face, but
both accused turned her
up and continued throwing stones at her.
the attitude of the people of Ha Paki to have been very funny. I am
saying that because though they had already gathered
at the scene, we
have not been told that they did anything but just watched without
intervening or seeking for help as both accused
assaulting the deceased. The deceased was left lying there by both
accused. She was later taken home in a wheel-barrow and
arrived, they conveyed her in their vehicle to hospital. According to
this witness, the deceased was bleeding from
her mouth, ears and nose
after the assault.
cross-examination, it was put to the witness that the deceased bled
from her mouth because accused 1 had struck her with a
fist and P.
W.2 answered in the affirmative.
of P.W.3 Mokhitlinyane Shai was to the effect that he was a member of
LMP who has since retired, but was still in active
service in 2002.
He was working at Mabote Police at the reception on the day in
question. He drove to Mazenod after he had received
a report by
telephone. He was a driver. They drove to Mazenod Ha Paki and found a
woman lying on the floor and was in a critical
condition. The witness
said the woman was quite helpless and could not even talk. She was
foaming from her mouth.
said he did not examine the woman as she was still alive and could
only be examined by another woman. She was covered with
a sheet and
taken to hospital in police vehicle. The witness had enquired about
the person responsible for the assaults and the
led him to accused 1. He found the accused at his home, cautioned him
and charged him of assault with intent to do grievous
P.W.3 had found an okapi knife as he searched accused 1, and seized
it. He also seized deceased's shoe which also
was found in accused's
possession. This witness made it clear to the Court that he was not
the investigator of this case as he
only worked at the reception.
examination to this witness led him into saying that though he never
mentioned that the deceased never sustained any further
her way to hospital, since they travelled on a tarred road and never
met with any accident there was just no way the
deceased could have
sustained any further injuries. In answer to the question why he had
seized the knife, P.W.3 replied by showing
that it was because it was
not the first time that accused 1 stabbed deceased with a knife. He
did not have personal knowledge
of that fact but relied on the
information he had received. The cross examination led him further to
say that on the previous assault,
accused 1 was only arrested and
charged but never taken to Court.
D/Tpr Makhele, a member of LMP who was stationed at Mabote Police in
2002, informed the Court that he was the
of this case. He met the accused at Mabote Police Station and charged
them of murder. He charged them of the murder
of the deceased
following the information in his possession as the accused never gave
him any explanations. According to him the
accused were taken to
Court and remanded into custody. His investigations revealed that
both accused had assaulted the deceased
with their hands, the
deceased who already had sustained injuries from previous assaults.
be worth mentioning at this stage that the Court might have felt that
P.W.4 had not done a proper job in his investigations
witness was even asked if he enjoyed intoxicating beverages and his
reply being, "yes I do." He was further
asked if he had
been sober on the day he investigated his case, the answer being,
yes. All these were asked because the witness
had said he did not
know why the accused were at the charge office, yet he was the
investigator of the case.
of P.W.5 Teboho Mosese was admitted by the defence after it had been
read into the machine to form part of the record.
This witness had
shown in his statement that he had been called by one 'Manturu to go
at 'Mapakiso's place and assist the deceased
whom it was reported was
being assaulted by accused 1. P.W.5
rushed to that place as he had on several occasions seen accused 1
assaulting the deceased badly. The witness did not get
place as he met the deceased on the way being carried in a
wheel-barrow by Thabiso Lebokollane and Montsi Theko.
them till they got to deceased's place and he left for his place.
admitted evidence was that of P.W.6 Thabo Theko who was the
identifying witness. He identified the body of the deceased
the doctor could perform a post mortem examination. The deceased was
his younger sister. According to him deceased died
at Queen II on the
9th December 2002.
Muhhamad Adnen gave evidence as P.W.7. he performed post-mortem
examination on the body of the deceased. He formed an opinion
examined the body on the 17 December, 2002 that the person had died
some nine (9) to eleven (11) days prior to his examination.
had two penetrating wounds on the left scapular region. According to
the doctor death was due to those penetrating injuries
to the left
side of the deceased's chest. He opened the chest and discovered that
the left lung had a collection of blood resulting
penetrating wounds.There was also a
congestion of the left lung. He showed that the collection of blood
in the lung cavity caused that congestion.
evidence further showed that the wounds were not fresh. The doctor by
his own admission pointed out that there had been an
oversight on his
part of not taking dimensions of the wounds. He said this was due to
pressure of work. The doctor further showed
that, the wounds were at
the back, on the left shoulder blade. That a metalic object must have
been used to cause the injuries.
examination to this witness revealed that the deceased might have not
received a proper treatment at the clinic causing
the deceased to
develop some complications. He showed that the collection of blood
was moderate as the flow was slow but the person
may have stopped
bleeding but the blood remained in the lung cavity causing the
collapse of the lung. He concluded by showing that
observation, the external injuries were not evident except for the
witness, P.W.8 Mphonyane Moerane told the Court that she stayed in
the same village as the accused. She brewed and sold
liquor at her
place. She was still at her home selling beer on the 7th December,
2002 when 'Mapakiso approached her to go and assist
accused 1 was assaulting the deceased. The witness and other people
who had been drinking at her place rushed to that spot only
the deceased in a toilet and accused 1 standing outside the door of
deceased must have run into that toilet to hide from accused 1's
assaults because P.W.8 continued in her evidence and said,
Mohapinyane had approached accused 1 and asked him not to assault the
deceased. Accused 1 in reply had said he was not going
to assault her
but just wanted to talk to her. How could Mohapinyane say those words
if accused 1 had not started assaulting the
deceased already. This
witness had rushed to the scene because she had been invited to go
P.W.8 saw accused 2 approach the deceased, she thought she was going
to intervene as according to this witness, accused 1 was
in a habit
of brutally assaulting the deceased. The word used by this witness
was "khakhatha" and this word in Sesotho
assaulting someone. It's different from saying "otla" which
had taken one of deceased's shoe leaving her with only one shoe. The
defence counsel had objected to the evidence that
that accused 1 was in the habit of assaulting the deceased. His basis
for that being that accused 1 was never charged of
those assaults. He
was overruled on that because the witness was saying what she knew.
It is not every criminal activity that is
always taken before the
Courts of Law. That fact that it was never taken to Court should not
be taken to mean it never happened.
witness was still moving to and fro between her home and the place
where the fight took place as she was also busy selling beer,
to keep on checking on her customers. She could therefore not have
seen everything that took place between accused and
deceased. But she
could see that accused 2 was only using her hands to assault the
deceased, whilst accused 1 was kicking her all
over the body.
seen the two stab wounds sustained by the deceased on her shoulder
blade. Deceased showed her the wounds as she had visited
for drinking. The witness came to know that accused 1 was responsible
for those wounds as they were discussing with
the deceased. Accused 1
kicked the deceased all over including on the injuries she had
sustained. The deceased was from bandaging
her wounds when the
accused assaulted her.
kicked the deceased till she lay motionless on the ground with her
eyes wide opened without blinking.
to this witness, as accused 1 was kicking the deceased, accused 2
stood aside and encouraged accused 1 to kill the deceased.
witness even heard accused 2 saying she would bury the deceased after
accused 1 would have killed her. Both accused left the
and went away. But what surprised me was that people had already
gathered at the scene and even witnessed two people
deceased but no one bothered to intervene. Would it be because, as
two of the Crown witnesses said, it had turned
to be a regular
spectable of that couple.
examination to this witness suggested that in fact the fight had
started at the toilet. This confirmed my observation
deceased must have run into that toilet for safety. P.W.8 was
informed that accused 1 was going to say that the fight
the toilet. But later it was said to the witness that accused 1 never
fought the deceased at the toilet. He was then
when he realized that it would not at that stage be said he was
defending his mother as he said, or asking
the deceased about his
out from this witness that in fact, accused 1 had only been staying
with deceased as husband and wife but were not married.
This to me
sounded a bit sad because as P.W.1 was giving her evidence she
referred to accused 1 as her father.
defence at the close of prosecution's case applied for the discharge
of the accused as they felt there was no evidence that
accused 2 killed the deceased. Their contention being that accused 2
only acted in self defence and that even in that
defence she never
exceeded the limits. That the prosecution failed to show that accused
acted unlawfully as she only jubilated
as deceased was being
assaulted. As for accused 1, it was said he only acted in defence of
his mother. The argument further showed
that the crown had led
evidence which was contrary to the indictment. The crown having
failed also to prove any intention and unlawfulness.
to the defence, there had been no evidence placed before the Court
that accused 1 was aware of the injuries on the deceased
assaulted her on the day in question.
to this application for discharge the crown's attitude was that there
was no evidence that it was the deceased who started
fight, so that it could not be correct to say that accused 2 acted in
self defence. The position obtaining was that, accused
2 acted in
concert with accused 1 as she associated herself with accused 1's
acts as she was heard saying 'kill her I will bury
her'. It was said,
even if accused 1 could be taken to have defended his mother but he
went overboard, there was no proportionality
in what he did.
question of having led evidence which had been contrary to the
indictment, the crown's response was that since the indictment
on or about 7 of December, in terms of section 154 (2) (a) of the
Criminal Procedure and Evidence Act of 1981 the previous
when deceased was stabbed on the 18th November, same year, fell
within the 30 days period allowed by the statute.
listening to argument on both sides the Court ruled that, there was a
case for both accused to answer. Accused 1 was the only
decided to go into the witness box to testify.
told the Court that they were staying together with the deceased as
man and wife though not legally married. P.W.1 Rethabile
their daughter who knew him so well. Accused 1 and the deceased had
separated, each staying at his/her home. According
to the accused,
the deceased left because she had
was going for work but was still coming back home in the evenings.
day in question, accused 1 had been at a drinking place when he
noticed the deceased going into a toilet. He went nearer
and waited for the deceased to come out. It should be remembered at
this juncture that, this was the stage that P.
W.8 said she was
called to the scene by 'Mapakiso to assist as accused 1 was
assaulting the deceased in the toilet. P.W.8 also
said when she got
there the deceased was in the toilet and accused 1 was the only one
standing at the toilet door.
said he asked the deceased when she came out of the toilet to bring
back his hat. It was not a peaceful talk and Mohapinyane
accused 1 to leave the deceased alone. But P.W.8 said Mohapinyane
asked accused 1 to leave the deceased whilst she was
still in the
toilet. He was not even challenged on this. Accused 1 took away
deceased's shoe, and said was going to give it back
in exchange for
his hat. Accused 1 had said he left immediately after that only to
turn back when he realized that the deceased
was assaulting his
mother. We have not been told as to where accused 1's mother had been
all that time or where she had come from.
only kicked the deceased once when he realized that his mother was
already bleeding from her forehead. The deceased fell
to the ground
as she was kicked and accused 1 left. He denied ever stabbing the
deceased with a knife during the month of November,
explaining his relationship with the deceased, accused 1 said it was
a stormy kind of relationship. They used to fight each other
causing any injury. He said whenever he was drunk he would fight the
deceased and deceased too would fight him when she
too was drunk.
This sounded as though they had an arrangement to get drunk in turns
and not to be both drunk as the same time which
could be quite
unrealistic. We have not been told as to what would happen when both
of them were drunk.
had said that deceased left him for her home as she claimed she was
going for work. But the deceased was still coming
back home from work
to Mazenod, so that that could not have been the reason why she left
accused 1. There could only be one logical
explanation, the deceased
ran away from accused 1's regular assaults.
seen and listened to the evidence of P.W.1, their daughter, who
clearly said that accused 1 was in the habit of assaulting
deceased whenever he was drunk. Looking at this witness in the
witness box, I had no reason to doubt her evidence. P.W.8 also
the same story as P.W.1 when she said that when he saw accused 2 at
the scene she thought she was going to intervene as accused
1 used to
assault the deceased.
no explanation given by accused 1 as to why P.W.2 could implicate him
by saying that on the 18th November as deceased
was brought home
injured, accused 1 had come following her enquiring about his victim
whom he wanted to finish of. Accused 1 only
gave a bare denial and
could not even give any reason why P.W.2 could lie about such a
defence had objected to the leading of evidence establishing the
stabbing of the deceased in November, 2002 but he was overruled.
defence had argued that the events of November could not be brought
into the picture in the charge before this Court as the
only read "on or about the 7th day of December, 2002". But
the prosecution in response had shown that section
154 (2) (a) of
CP&E took care of the situation. The section reads
any particular day or period is alleged in any charge as the day or
period which any act or offence was committed
that the act or offence was committed on any other day or time not
more than 3 months before or after the day or period
therein shall be taken to support such allegation if time be not of
essence of the offence;"
stated by the prosecution that relying on the provisions of the above
quoted section the 18th November fell within the three
by the section. I am in agreement with the argument advanced by the
defence, that in fact the section was misconstrued
because it would
only apply where there was one incident not where there were two
different incidents happening on different dates.
the relevant section would be section 158 of the CP&E Act which
" Whenever a charge in respect of any offence is defective, for
want of the averment of any matter which is an essential ingredient
of the offence, the defect shall be cured by evidence at the trial in
respect of the offence proving the presence of such matter
should have been averred, unless the want of averment was brought to
court before judgment. "
been evidence that accused 1 was reputed for assaulting the deceased.
This was said by P.W.5. He was seen by P.W.2 on
the 18th November
following immediately after the deceased was taken home. He was even
claiming that he wanted to finish the deceased
of. P.W.2 heard
accused 1 claiming to have stabbed the deceased. Whilst P.W.1 and
P.W.8 on the other side heard from the deceased
herself that the
injuries had been caused by accused 1 with a knife.
enough, the framing of the indictment left out the events of the 18th
November when the deceased was stabbed with a knife.
which was placed before this Court established that it was accused 1
who inflicted those stab wounds on the deceased.
The defect in the
indictment has thus been cured by evidence. S v Van Wyk 1974 (1) S.A
36. It could not even be said that the accused
would suffer any
prejudice as in both occasions accused 1 has been the one who
inflicted the injuries or who assaulted the deceased.
No need even to
request for any amendment of the indictment once the evidence has
been led to cure the defect.
learned from the evidence of the doctor that he examined the dead
body some nine to eleven days after death. The defence relied
report by the doctor that no external injuries were
The doctor had stated that due to pressure of work at Queen II he
overlooked the taking of dimensions of the wounds. The
not been taken straight to the mortuary from the scene, but because
she was still alive was taken to hospital. P.W.2
had shown that
deceased was bleeding through her mouth, ears and nose, whilst P.W.3
said was foaming from her mouth. That could
well have been so, but
people might have thought that making mention of having washed the
deceased was a minor issue. What might
be worth considering would be
the fact that the dead body had been kept at a cold place at the
mortuary for days before the post-mortem
examination. So that if
there had been any bruises on the body and around the injuries they
could not still be visible during post-mortem
possibly due to cold.
But evidence has shown that both accused 1 and accused 2 were seen
assaulting the deceased on the day in
accused 1 stabbed the deceased on the 18th November, accused 2 was
not there. She could not therefore be associated with the
that date. The intention to kill could be inferred from the nature of
the weapon used. Accused 2 had been using a shoe
in assaulting the
deceased, but in her participation could not be said he intended to
kill, Ntsokolo v R 1995-96 LLR & LB 335.
been said she was heard saying to the accused 1 as he was assaulting
the deceased, "kill her and I will burry her."
Sesotho we always say to our kids, "I will kill you", not
necessarily saying killing in the true sense of the word.
just be another way of showing your disapproval, or anger.
said in R v Duma & Another, 1945 AD 410 at 415, that association
in the common design need not be express, it may well
be implied from
conduct. The participation of accused 2 on the 7 December if anything
was with intent to cause harm but not to
shown that accused 2 joined the fight as she heard the deceased
insulting her (accused 2) when accused 1 was assaulting
(deceased). I was inclined to believe the story of P.W.1 as she
impressed me as a credible witness. Prior agreement on a common
purpose is not required, but is sufficient if collaboration began
without premeditation and on the spur of the moment, S v Maree
(4) S.A. 545.
Mosiuoa Pheko v R 1985-90 LLR 9 the Court found that common purpose
to commit Culpable Homicide had not been proved where
assaulted the deceased once with a
after a quarrel, but later the brother of appellant came and fatally
stabbed the deceased with a knife. Appellant was not
shown to have
known that his brother would join the fight, nor was there any
evidence that appellant knew his brother had a knife.
In this case,
we have not been told that accused 2 knew that accused 1 had prior to
that day stabbed the deceased with a knife
and that the wounds were
even still being attended to at the clinic.
already pointed out that the intention to kill could be inferred from
the weapon used. It could also be inferred from the
area where the
wounds were inflicted. The doctor told this Court that the injuries
which caused the death of the deceased were
at the back on the left
shoulder blade, and evidence had revealed that they were caused by
to P.W.2 accused 1 was threatening to kill the deceased that was why
deceased had asked P.W.2 to meet her halfway from
the clinic. Accused
1 assaulted the deceased all over and did not care to spare the areas
where the deceased had been stabbed.
This he did in furtherance of
his intention to kill. We were told by Crown witnesses that when the
deceased was taken from the
scene she could no longer talk and was
breathing with difficulty.
therefore finds that when the accused, accused 1 stabbed the deceased
with a knife on the 18 November causing penetrating
wounds, and when
he assaulted her on the 7th December, 2002 he had the intention to
kill the deceased. That when accused 2 assaulted
the deceased on the
7th December, 2002 she had intention to cause grievous bodily harm.
stand up the accused.
1: You are accordingly found guilty of murder.
2: You are found guilty of Assault with intent to do grievous bodily
one of our Assessors has now departed this land, (may His soul rest
in peace), but we had already discussed this case with
him. So that
both my Assessors agree with my findings. Passing of sentence
deferred to 31/05/05.
been told that the accused are first offenders. Though there was no
valid marriage between the deceased and accused 1, but
scenario appeared to have been a family feud. Accused 1 and the
deceased stayed together as husband and wife, and this
by P.W.1, Rethabile Theko who referred to accused 1 as her father.
the defence counsel wanted to put things mildly by saying accused 1
and the deceased fought almost daily out of jealousy,
correctly put by the prosecution's side that it has always been a
stormy kind of relationship.
took into account the extenuating circumstances advanced by the
defence. Accused 1 was found to have been armed with a
knife on the
day of the assault, but did not use it on the deceased. Accused 1
produced before Court his medical book as evidence
that he was a
sickly person attending TB treatment, but that should not be taken to
make him less blameworthy. He had stabbed the
deceased with a knife
on previous occasion and when he so assaulted and kicked her on that
fateful day did not care to remember
that deceased still had those
extracted the truth of the matter from both accused through some of
the crown witnesses. Accused 1 denied ever stabbing
the deceased with
a knife prior to the day in question, but there had been strong
evidence that he did stab the deceased and wanted
to see her dead.
The deceased must have run away from accused 1's assaults to her
cases one would find that some parents in marriage love to choose
partners for their children, so that accused 2 might have
such parent. She would not tolerate her son, accused 1, taking the
deceased as his wife. We were told in evidence that
she even referred
to deceased as "letekatse", which loosely means a woman for
to be a balance between the interests of the accused and those of the
victim as was said in R v Selibo & Ors C of
A (CRI) 8/04 that the
victim or his dependants are often a neglected party in the criminal
justice system. Accused 1 is a sickly
person and accused 2 is an
elderly woman, but we still have to remember that deceased's parents
have also lost their daughter and
deceased's children have lost their
mother. There might be a claim for compensation for raising
deceased's head under our custom
has to be borne in mind in passing the appropriate sentences.
please stand up.
Accused 1: You have been found guilty of murder and you are sentenced
to a period of seven years.
Accused 2: You have been found guilty of assault with intent
to do grievous bodily harm you are sentenced to a term of three years
imprisonment, and the whole of that sentence suspended for
of two years on condition that during the period of suspension, you
are not found guilty of a similar offence involving
another persons or persons.
Crown: Ms Motinyane
Defence: Mr Lesuthu
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