CRI/T/183/2002

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
Matter Between:

Rex

And

Bokang
Faso

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 30^th
September 2005

The
accused herein appeared before me on the 20th October 2004 on a
charge of murder it being alleged that on or about the 16th
June,
1995 at or near Molimo Nthuse in the district of Qacha's Nek the said
accused unlawfully and intentionally killed one Pholo
ea Tona Faso.

He
pleaded not guilty to the charge. After Mr Mokuku, Counsel for the
Crown made his opening address, Mr Monethi who was then Counsel
for
the defence applied for a postponement of the matter pending the
accused undergoing a psychiatric examination. I duly granted
the
application and postponed the matter to the 20th November 2004.

1

On the
20th November, the Court was informed that the accused had not yet
undergone the psychiatric evaluation but after determining
that it
was not the defence case that he could not appreciate the proceedings
but rather that the evaluation was meant to determine
his state of
mind at the time of the incident, I ordered that the matter be
postponed to the 25th November 2004 for hearing, whilst
the defence
proceeded with arrangements for accused's psychiatric evaluation. On
the 25th November, the matter duly proceeded and
the crown led
evidence.

Facts
which are common cause are that on the said date, P.W.I and his
brother were drinking at one Chabane's shop when accused arrived
and
called him outside. P.W. 1 followed him and when they got outside the
latter told him that he had just killed that person who
had murdered
his father. It was P.W.l's evidence that upon examination of the
accused he noticed some blood stains on his person.
He testified
further that at the time the accused appeared normal.

P.W.I
then called his brother and relayed the news to him and the three of
them who also happen to be related, left together to
report the
matter to their other relatives. From there they went to the chiefs
place to report. The chief

2

raised an
alarm and people came whereby the accused took them to where the
deceased's body was. P.W.I testified further that they
found the
deceased's body near a river by a forest and that his throat was slit
open.

P.W.2's
testimony was that he was sleeping on that night when he was woken by
P.W. 1. The latter asked him to go with him to his
grandfather's
place. Upon arrival there he informed them that the accused had
killed the deceased. He also confirmed that after
the matter was
reported to the chief, the accused took the villagers to the place
where the deceased was and he saw that the deceased's
throat was cut
and that he had two (2) open wounds above the eyes, on the chest and
above the waist.

P.W.3's
evidence was basically the same in that he was also present at the
time the accused volunteered to take the chief and other
people to
the place where he had left the deceased. He went on to show that the
accused voluntarily handed over a blood-stained
knife to the chief.

P. W. 4
was the investigating officer who told the Court that after receiving
a report he proceeded to Molimo Nthuse near a river
whereupon he
found people gathered around the dead body of an adult male with its
throat cut,

3

lying on
its back. He also observed two wounds above both eyes, two others on
the cheek and three on the left thigh. After making
enquiries P.W.4
got an explanation from the accused who told him that the deceased
had killed his father. The latter then voluntarily
handed over to him
a yellow okapi knife whereupon he gave him the charge of murder and
arrested him.

The
medical evidence showed that the deceased died as a result of
excessive external bleeding due to the cut trachea and carotid

vessels.

During
cross- examination of the crown witnesses, the defence practically
admitted the evidence and the only issue that they raised
in defence
was that the accused could not have been normal at the time he
committed the murder. All the crown witnesses were however
firm that
from their own observation, the accused was normal from his physical
appearance to the way he conducted himself the whole
time up until he
got arrested.

Although
they did not dispute the killing, the defence elected not to put the
accused in the witness box but instead called to the
stand, the
psychiatrist who carried out the examination of the accused.
According to this witness 'testimony, upon examination
of the
accused, he was able to extract

4

some
information from the accused about what happened immediately before
and after the stabbing of the deceased including his voluntarily

going to report the incident. It was also his evidence that under
observation, the accused appeared unable or unwilling to recollect

the actual stabbing itself.

He
however said that from his expert opinion, the accused was not insane
at the time he committed the killing as evidenced by his
calm state
immediately after the incident that even led him to go and report it
immediately after. The psychiatrist testified further
that his
examination revealed the accused to be suffering from functional loss
of memory although he did not exhibit any symptoms
of that condition.

He added
that he was not in a position to say whether the accused's condition
was genuine or fake but added that it was possible
that accused was
malingering and consciously stimulating the loss of memory. He
explained that the condition sometimes occurs where
a person is
apprehensive about an imminent problem/discomfort concerning things
such as money, danger or death during wartime or
possible
imprisonment or the death sentence.

5

In his
closing argument Mr Mokuku asked the Court to find the accused guilty
as charged for the reason that he had not denied the
commission of
the offence. Secondly, that the accused's defence was not put to the
crown witnesses during cross-examination. He
added that nowhere in
his testimony had the doctor conclusively pointed to accused having
been insane at the material time.

Mr
Lesuthu, Counsel for the defence submitted that the crown had not
proved its case beyond a reasonable doubt for the reason that
no
investigations were carried out to establish who the owner of the
murder weapon was. He premised this argument on the doctor's
evidence
testified that the accused had told him during the examination that
the deceased had accused him of having impregnated
his daughter in
the past and that since then relations between them deteriorated. He
also told him that on that fateful day the
two met near the river,
got into an argument whereupon the deceased drew out the knife and
although he could not recall what happened
afterwards, the next thing
he noticed was the bloodied knife in his hands and the deceased lying
on the ground.

6

On the
evidence before the court, it has been established without any doubt
that the accused is the one who carried out the killing
using the
okapi knife as he voluntarily reported the incident to P.W. 1, the
chief and other villagers. This evidence was never
challenged and
ownership of the knife was never put in issue. It is a totally new
matter which was only raised during the closing
addresses.

To accuse
the investigators of not having carried out their investigation under
these circumstances is a tall order from the defence
Counsel. Nowhere
was ownership of the knife ever disputed. However, even assuming that
the knife did not belong to the accused
but to the deceased, that
factor alone would not mean that the accused did not use it to carry
out the killing. This argument therefore
does not take us anywhere.

In
addition, nowhere during the cross-examination of the crown witnesses
especially P.W.I, was it ever suggested that the accused
reported to
them what he told the doctor during evaluation i.e. that the deceased
had tried to assault him with the said knife.
All that he allegedly
reported was that he had just killed that person who was responsible
for his father's death. The crown's
evidence on this aspect remains
unchallenged.

7

Under
these circumstances the only question that this court has to
determine is whether at the time he killed the deceased, the
accused
did not act voluntarily.

In
support of the defence case, Mr Lesuthu quoted to this Court the
decision of the Court of Appeal in the case of DPP V Mosuoe
Moteane
where on the basis of the psychologist's evidence the accused therein
was acquitted on the ground that at the time of the
shooting of the
deceased, he was not able to distinguish between right and wrong due
to a disintegration of his personality of
a temporary nature. It was
also Mr Lesuthu's submission that the Crown did not bring its own
psychiatrist to rebut Dr Shaikh's
evidence and as such had failed to
prove its case beyond a reasonable doubt.

As I have
already mentioned above, when he took the stand Dr Sheikh testified
that during his examination, the accused was unable
to recollect the
actual stabbing of the deceased. However, the doctor added that from
his opinion, at the time of the incident
the accused was in full
possession of all his mental faculties. His evidence did not disprove
sanity on the part of the accused
at the time of the incident. Even
his apparent subsequent loss of

8

memory
was explained by the same doctor as highly likely being triggered on
deliberately.

On the
basis of these facts it is my opinion that this case can be
distinguished from the Moteane' case (Supra) in that therein,
the
psychologist testified with certainty that the accused did not know
what he was doing at the time. That was not the position
herein. If
anything, in casu, Dr Sheikh told the Court that the accused did not
suffer from mental illness at the material time.

In his
own words he stated as follows under cross-examination; Question: Was
his state of mind normal at the time of the offence?

Answer:
The quality of his mind was no different from that of any other
person except for that resulting from provocation. (I may
also add
that the provocation was never established by the defence. The doctor
relied on what he was told by the accused at the
time he was
evaluating him.)

Question:
Your conclusion?

Answer:
It is extremely difficult to say, but if you are asking whether he

was
mentally ill or insane at the time - no.

9

Question:
He could still appreciate?

Answer:
Yes. He immediately went back to the village to report

As Mr
Mokuku rightly pointed out, the defence did not put their defence to
the crown witnesses or take the Court into its confidence
by putting
the accused in the witness box. Even the version by the defence that
the accused was provoked and attacked by the deceased
with the knife
was hearsay on the part of the doctor. The accused himself neither
told this to the Court nor at least to the crown
witnesses to whom he
immediately reported the incident. For these reasons, the Court
accepts the evidence of the crown as true.
In the case of Small v
Smith 1954 (3) SA 434 the Court stated that;

"Once a witness's evidence on a point in dispute has been
deliberately left unchallenged in cross-examination, particularly
by
a legal practitioner, the party calling that witness is normally
entitled to assume in the absence of notice to the contrary
that the
witness's testimony is accepted as correct. More so particularly is
this the case if the witness is corroborated by several
others,
unless the testimony is so manisfestly absurd, fantastic or of so
romancing a character that no reasonable person can attach
any
credence to it whatsoever. "

10

In
addition, most of the defence contentions and submissions were based
on the doctor's report and viva voce evidence which did
not say at
the time of the killing the accused was not aware of what he was
doing. On the contrary, it was the doctor's evidence
that the accused
was normal at that time.

In the
light of the evidence before the court, I find that the crown has
indeed discharged its onus of proving the act of voluntary
killing by
the accused beyond a reasonable doubt. I also find that unlike in the
Moteane Case (Supra) the accused failed to create
a reasonable doubt
as to whether he had the mental capacity.

VERDICT

The cause
of death was undisputedly the cut trachea and carotid vessels
resulting from the repeated stabbing of the deceased with
the knife.
The medical evidence failed to disprove sanity on the part of the
accused at the time of the incident or even cast a
reasonable doubt.

The Crown
has successfully established all the elements of the offence of
murder. The killing of the deceased was unlawful and intentional
and
from

11

P.W.l's
unchallenged evidence, the accused killed the deceased because as he
voluntarily told him, he wanted to avenge the death
of his father
whom he believed was killed by the deceased herein. The Court was
however told that the father of the accused died
as a result of a car
accident in the Republic of South Africa. This was not disputed by
the defence at all.

Unfortunately,
because the defence elected not to take the stand, the court was not
able to find out from the accused why he believed
so, nonetheless, as
enjoined by the provisions of Section 296 of the Criminal Procedure
and Evidence Act of 1981, the Court finds
that this belief is a
factor that lessened his blameworthiness.

This is
because it is a sad but not uncommon fact that a certain class of
people in the community, especially those with minimal
or no
education at all believe that a person can cause another's death
through other means (usually supernatural) than physical.
This is
especially so with regard to death occurring to people who work in
the RSA mines. It is this belief that gave the accused
the motive to
'avenge' his father's death.

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In the
light of the above reasons I find the accused guilty of the offence
of murder with extenuating circumstances.

My
assessor agrees.

Sentence

In
passing sentence, I take into consideration the fact that accused did
not premeditate the death of the deceased as his Counsel
rightly
pleaded. However, as a Court, I however have the duty to strike a
balance between the interests of the accused on the one
hand and
those of the family of the deceased on the other.

Needless
to say, the latter will never see the deceased nor enjoy the same
comforts with which he used to provide them whilst the
family of the
accused will still have the opportunity to pay him visits and once he
finishes serving his sentence, to enjoy his
company again.

As I have
already mentioned above, I also take into account the fact that
although not insane at the time of the incident, the accused's
mind
was negatively affected by his belief that the deceased is the one
who caused his

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father's
death. I am also cognizant of the fact that this matter has been
hanging on accused's head for a period of almost ten (10)
years.

Lastly, I
take into consideration that whilst incarcerated, the accused will
have the benefit of undergoing a rehabilitation process
which will
help him reintegrate into society a better person. I accordingly
sentence him to a period of eight (8) years imprisonment
without the
option of a fine.

N. MAJARA

JUDGE

Assessor
: Mr Makhera

For the
Crown : Mr Mokuku

For the
Defence : Mr Lesuthu

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