IN THE
HIGH COURT OF LESOTHO

In the
matter between:- CRI/T/140/04

REX

VRS

HABASISA
KHOAEANE

JUDGEMENT

Delivered
by the Honourable Acting Judge Mrs. Mahase On the 8th September 2005

The
accused appeared before this court charged with having committed the
crime of Murder of one Refuoe Khoaeane.

The
accused is alleged to have been aged 59 years at that time, while the
deceased was aged 13 years.

The
incident allegedly occurred upon or about the 9th January 2004, and
at or near Ha Mahlomola, Mphaki in the district of Quthing.

It is
common cause that the accused is the grandfather of the deceased.
Also of common cause is the fact that the deceased was an
orphan.

1

Further
and also of common cause is the fact that the accused is a married
man who has ten children.

The
defence has tendered a plea of guilty to culpable homicide. This plea
was accepted by the crown (regrettably so as will be shown

hereunder).

Briefly
the facts of this case, which facts were accepted by the defence are
as follows:-

It would
appear that the accused had put the sum of one hundred Maloti (M
100.00) somewhere in his house.

On the
day in question, he asked one of his children to give him that said
sum of money from where he had put it.

That
child later informed his father that he/she could not find that money
at that particular place.

The
accused then questioned his children who were at home with him on
that day about the whereabouts of it. They all replied that
they did
not know where it was or who had taken it away from there.

However,
one of the said children replied that the said sum of money had been
taken away from there by Refuooe (Deceased).

2

The
accused then immediately asked one of his said children to get him a
rope. This was done. Having received a rope, the accused
took hold of
the deceased; tied her up with that rope. He tied up her feet, hands
and neck together with it. Her hands having been
tied at her back.

It is not
clear whether or not the deceased did reply when they were asked
about that money.

Having so
tied her up, the accused started to assault the deceased with a stick
(molamu) and later with an old hard tyre belt.

All
efforts and pleas by various crown witnesses who went thereat to
intervene failed. The accused could not listen to anyone who
asked
and reprimanded him to stop assaulting the deceased. All the six
crown eye witnesses described the accused as having exhibited
signs
of extreme anger and violence as he assaulted the deceased.

The said
assault upon the deceased by the accused took a long time and it was
non-stop. One witness after the other went there and
away to call
other people to come and persuade the accused to stop assaulting the
deceased but in vain.

3

Eventually
one Mphakatsa Khoaeane arrived thereat. He asked the accused to stop
assaulting the deceased. He is the only person whose
order was heeded
by the accused because he (accused) only stopped assaulting the
deceased after Mphakatsa had asked him to stop.

Immediately
thereafter and at the orders of Mphakatsa the accused unfastened the
rope from the deceased. The deceased then ran away
but she felt down
near the aloe. She could no longer stand up nor speak. She had
sustained very serious injuries as shown in exhibit
'A'.

The
deceased died immediately and accused was assisted by the crown
witnesses who have witnessed this brutal assault to take the
deceased
back into the house.

These
witnesses would tell the court that after the rope was unfastened,
the deceased walked away in a staggering fashion of a very
exhausted
or intoxicated person before she fell down and died.

All the
crown witnesses realized and immediately saw that the deceased had
sustained head injuries.

4

Mention
must be made of the evidence of one of the crown witnesses who was
the first person to go to the accused's home, His names
are Ntsane
Ramolibeli.

It would
be his evidence that on the day in question, he went passed near the
accused's place when he heard a scream from the accused's
home. He
went to see what was happening.

Upon
arrival thereat, he found the accused whipping the child with her
limps tied to her neck. He tried to stop him from assaulting
that
child. He however gave up after the accused had warned him (Ntsane)
that he (Ntsane) would repay the money stolen by that
child.

He then
saw the accused pull that child with one leg into the house and
closing the door behind him. This witness then went away
to call the
other crown witnesses.

He and
those others went back to the accused's home and one Mphakatsa told
the accused to untie that child and he did. This witness
then went to
his own home.

It is
abundantly clear that this witness is the only one who saw when the
accused pulled the deceased into his house and then closed
the door
behind. He (witness) did not go into the house himself.

5

Obviously,
he does not know what happened between the accused and that child in
that house at that time.

This
witness, Ntsane Ramolibeli also got to know about the deceased's
death later on that day.

The above
evidence of Ntsane Ramolibeli is important because among other
things, the post-mortem report has shown that the deceased
"was
sexually raped".

The
medical doctor's remarks thereat in exhibit 'A' are further that the
deceased had "bruises and abrasion on the vulva and
vagina.
Lacerated (freshly) hymen".

I pose to
note however that, despite these remarks by the medical doctor, no
charge of rape was added to that of murder and I also
note that the
crown conceded that the deceased was not raped.

No
reasons were advanced by the crown as to why it conceded to this
point. This court is aware that the vaginal swab was taken but
the
medical doctor has stated that "no spermatozoa found". This
would however not necessarily negative the fact that
rape did take
place. But as has been said the crown conceded that deceased had not
been raped.

6

Further
mention of the contents of exhibit 'A' is necessary so as to
demonstrate the cruelty of the accused is killing his own grandchild

as he did. The said report (exhibit 'A') has revealed that death was
due to:-

1. Open
wound on the vertical aspect of the head, with depressed fracture on
the vertical bone of the skull and subdural hemorrhage/hamatoma;

Clearly
this shows that the accused assaulted the deceased on her head; the
most vulnerable part of one's body.

2. Item
No.8:- remarks are "Bruises and abrasion on the vulva and vagina
lacerated (freshly) hymen.

It has
already been indicated above that there is no evidence as to how the
said injuries in (2) have occurred and further that
the crown has
conceded that the deceased has not been raped.

The
defence submitted that the deceased was assaulted on her private
parts too.

3.
Abrasion and laceration on the right temple.

7

4.
Bruises on the left cheek, lower lip, left flank, right thigh, left
leg and both arms.

The last
remark is that:-

5.
"........was raped sexually and assaulted to death".

It is
further shown in item No. 10 that the deceased had a "depressed
fracture vertical aspect of the skull".

Clearly
when the accused assaulted the deceased as he did, he did not care
whether or not death would occur. The way in which he
had her tied up
was to make sure that the deceased would not even escape from this
brutal assault. It is also clear that by the
time he stopped
assaulting her, the deceased was so severely injured that she could
not survive.

She was
assaulted first with a stick (molamu) all over her body, including
the head, later with a belt made of a hard, rough old
tyre
mercilessly for a long time.

This did
not exhibit the normal way in which a parent would normally chastise
a naughty child. The accused clearly intended to fatally
assault the
deceased to death.

This
court wonders if this said child was befallen by this unfortunate
demise because she was an orphan.

8

This
court has had the opportunity to see and touch that tyre-belt; and
also to see the stick in question, as well as the rope with
which the
accused had tied up the deceased.

The above
should not and are never meant to be used on any human being let
alone using them to chastise a thirteen year old child
in the way in
which the accused assaulted the deceased herein.

All the
crown witnesses who have actually witnessed/seen when the accused was
assaulting the deceased corroborate each other in
all the material
and important aspects namely the way she was tied up, beaten and the
injuries sustained.

Their
evidence as to the injuries which the deceased had sustained is
further corroborated by that of the 6th witness, Malikuoa
Khoaeane,
who identified her body.

This in
turn was also corroborated by that of D/Trp. Maqala who attended the
scene of crime. He too and upon inspection noticed
that the deceased
had sustained open wounds on the head and had contusions all over the
body. Indeed this is also corroborated
by the medical doctor's
post-moterm report, exhibit 'A'.

9

There is
no evidence suggesting that other than those injuries which the
deceased sustained while being assaulted by the accused,
she
sustained any other further injuries inflicted upon her by anybody
else.

It is
undisputed that following the death of the deceased, the accused was
escorted to the Quthing Police Station by one Ts'eliso
Phate, who was
the chiefs messenger.

He was
handed to No. 10185, Trp. Ramosoeu. This officer then identified
himself, warned and cautioned the accused. He then asked
for an
explanation which the accused then made after which No. 10185
preferred a charge of murder to the accused and arrested him.

This
court has no reason to doubt all the evidence tendered herein by the
crown to proof its case against the accused. It has accordingly
come
to the conclusion that the crown has discharged the onus placed upon
it of proofing its case against the accused herein beyond
any shadow
(reasonable) of doubt.

As has
earlier been indicated, the accused tendered a plea of guilty to
culpable homicide. This was accepted by the crown, so there
was not
need for the accused to testify in his defence. All the summarized
facts by the crown were admitted by the defence.

10

One may
only pause to observe that the accused has been very, very lucky that
the crown has accepted his plea to a lesser charge
of culpable
homicide. All the evidence herein point to the fact that the accused
had the requisite intent to commit the crime of
murder. The accused's
actions of assaulting the deceased as he did were monstrous.

The crown
had initially, and correctly in the mind of this court preferred a
charge of murder against the accused. It is not clear
why the crown
suddenly changed and accepted a plea on a lessor offence than that
charge originally preferred against the accused.

For the
foregoing reasons, this court has come to the conclusion that the
accused is guilty of culpable homicide, though very reluctantly.

In its
summary of evidence, the crown has indicated that this is a
borderline case which they however place in the hands of the
court to
exercise its discretion as to whether or not it allows the plea
bargain entered between it (crown) and the defence.

This
court was informed about the above only after the plea and its
acceptance by the crown had been recorded and made part of the

record.

11

In any
case, the crown is the dominis litis herein, I am not so sure that it
was for this court to say whether or not it accepted
the plea bargain
between the parties herein while the court was not initially aware of
the kind of evidence that would be adduced.

Since the
crown has accepted a plea to a lessor offence to that of murder, it
would, in the circumstances and in my humble submission,
be irregular
for this court to convict accused on a more serious charge of murder.

In
mitigation of sentence, the Defence Counsel, who filed a written
paper herein, submitted that:-

The
accused is an illiterate Mosotho man of 63 years of age. He lived all
his life with a clean record, and is a first offender.

His
background is that of a herd-boy who grew up in the cattle post. On
several occasions while growing up he has seen and experienced
how
the villagers treat a thief with a rope and fastened the same rope to
a tail of a horse and then bit him.

12

It was
submitted in this regard that the above had become a part of the
accused's life experience which over-rided his powers of
thinking
sensibly.

That
being an illiterate person, the accused would have behaved
differently if the child had committed a different offence.

Accused,
so it was submitted is a married man who has ten children. He has
been in prison since his arrest on the 9th January, 2004.
That is, he
was never admitted to bail.

Defence
Counsel asked that the court should take these factors into account
and consider the time the accused has spent in jail
awaiting trial
when imposing sentence.

It was
further submitted that the court should approach the accused's
predicament with mercy and impose a sentence that will help
the
accused repent so that he can be re-intergrated into society as a
rependent man.

Now
coming to punishment, the court has carefully taken into account what
Defence Counsel for accused has said in mitigation of
sentence. In
particular the fact that the accused, now aged about or between 59
and 60 years; is a first offender.

13

Also
taken into consideration by this court in determining the appropriate
punishment for the accused is the time he spent in prison
awaiting
trial before the case was prosecuted to finality.

The court
has been informed that the accused was never released on bail. He was
arrested and remanded into custody from the 9th
January 2004. He has
therefore been in prison awaiting trial for a period of about one
year, seven months before the case against
him was finally prosecuted
to finality. The court takes this period into consideration in
imposing a sentence upon the accused.

This
court is however, not prepared to turn a blind eye to the seriousness
of this monsterous offence against which the accused
has been
convicted. The brutality, with which the accused assaulted a child of
13 years of age is unforgiveable. The kind of weapons
used and the
way she was tied up while being so savagely assaulted are beyond
human imagination.

No one
person has a right to take away or bring to an end the life of
another person.

The
accused brutally and savagely killed the deceased under very dubious
circumstances and took the law upon his own hands.

14

It has
already been indicated that accused should consider himself very,
very lucky that the crown has accepted his plea on a lessor
charge of
culpable homicide. This is a case not deserving such a plea.

The
accused's behaviour in assaulting the deceased as he did was not only
unlawful but it was barbaric and despicable.

The fact
that the accused is an illiterate Mosotho man who grew up and
experienced the brutal way in which thieves were treated
is neither
here nor there. The fact of the matter is that the accused is human
and so also was the deceased. Accused is a normal
human being who
would also expect that he be treated humanly no matter what. Why then
could he not treat the deceased in a human,
civilized way?

The best
that the accused could have done was to report the case to the police
who would professionally investigate the case of
theft; other than
him taking the law into his own hands.

This is a
case deserving an imposition of a sentence that will among others
serve as a lesson and a deterrant factor to the accused
and other
people of his mind to see that courts of law do not lightly view nor
do they encourage this type of

15

behaviour
exhibited by the accused against another human being.

The
brutality of the assault upon the deceased by the accused, coupled
with the high rate of culpable homicide cases which the courts
of law
deal with on daily basis and the seriousness of this offence call for
imposition of an appropriate deterrent sentence upon
the accused
herein.

In the
circumstances of this case, these can be no substantial and
compelling reasons to justify any less of a sentences than 18
years
imprisonment.

The
accused is accordingly sentenced to 18 years (eighteen years)
imprisonment.

16

Sentence
to run from 9th January 2004

My
assessors agree.

Exhibit 1
is to be lawfully disposed off by the police.

M. MAHASE
(MRS) ACTING JUDGE

For Crown
: Mr. Mahao For Defence : Mr. Lesuthu

17