HIGH COURT OF LESOTHO
Maqutu for the Crown
Thulo for the Accused
BY THE HONOURABLE MRS JUSTICE K.J GUNI ON THE 17th AUGUST, 2006
Intention to kill not
Intention to kill to be gathered or gleaned from the surrounding
circumstances and facts of the case.
guilt is fault based.
there is no fault there is no murder or culpable homicide.
accused - SENTLE MOUPO is charged with the crime of murder. It is
being alleged that upon or about the 18th day of February
at or near MALUBA-LUBE in the district of MOKHOTLONG, the said
accused with intent to kill unlawfully and intentionally
injuries on MAMOUPO MOUPO - from which she died on the 18th February
2003 at MALUBA-LUBE MOROJELENG.
no dispute at all in the facts of this case. Everything that is
really material, is in the common cause. The accused is
a member of
the LESOTHO POLICE FORCE SERVICE. The accused and the deceased are
husband and wife. They married in 1997. Shortly
after they married,
say about 1998, their married life turned sour. It could be said that
they could not manage successfully their
marital problems or they
badly managed those problems to the extend that the parties regularly
sought the intervention/or help
of the outsiders in their
relationship. According to the accused, they never lived together in
harmony for more than six months
period. They were all the time
drifting apart. Their relationship was so stormy that the accused
often asked his superior to intervened
and they did. He asked for and
obtained transfers regularly in order to get away from his wife.
prior to the 18th February 2003 the accused was residing and working
at MAPHOLANENG POLICE POST. The wife - deceased
resided and worked at
MOKHOTLONG town. The accused was at LERIBE on the 18th February 2003.
He was at the flats where he has kept
his property. The wife arrived
thereat. As usually there was a quarrel between him and his wife. He
asked the landlady to intervene.
She obliged. The accused told the
court that the major cause of their quarrels is his wife's jealousy.
She seemed to have been
so possessive no skirt went passed her
husband without him being accused of some impropriety. She also had a
quick temper. Her
accusations of impropriety should not be denied.
Nor could she be challenged when making those accusations without
wrath. Sometime in the passed the deceased paid a visit
to her husband at MAPHOLANENG. When she arrived there she called the
named PUSELETSO. When PUSELETSO, in response to the deceased
person's call arrived at the flat, she entered. Immediately after she
had entered the deceased person shut and locked the door behind her.
She accused PUSELETSO in her husband's presence, of having
love affair with her husband. PUSELETSO denied, whereupon she
immediately received on her face a hot slap. The accused
and stopped that assault upon PUSELETSO.
18th February 2003, when the husband heard that his wife was in town
and that she was very angry, that must have sent a chill
spine, knowing his wife's temper and its quickness.
He confirmed what he had been told that she is angry. Surprisingly,
there were no violent episodes in their contact that
day. They talked
amicably, though that is not expressed. They even decided to travel
together to MOKHOTLONG. The husband intended
to return to MAPHOLANENG
where he works. He had hoped that the wife will proceed to her
residence and workplace at MOKHOTLONG.
MOKHOTLONG and MAPHOLANENG are
on the one and the same route. The accused did not alight from the
taxi at MAPHOLANENG. Both parties
proceeded to MOKHOTLONG where they
arrived in the evening. The accused on their arrival at their
residence proceeded into the bedroom
of his apparently two roomed
deceased remained in the kitchen where they had found three other
people already settled down for the night. Those were the
person's father, the domestic worker and the couple's child. Although
they were already in bed so to speak, they had not
yet fallen asleep.
The discrepancies in their narration of what exactly took place and
the sequence of events definitely gives
the impression that at least
one of them was not fully alert. Whether that was due to drowsiness
of sleep or illness I cannot say,
but ntate MOTEBANG KOBELI even
though he was in the kitchen with Pw1 his narration of events in his
statement, is as though he
was in the same room with the accused and
the deceased. In addition he makes no mention of the cause of the
quarrel between the
accused and his wife.
apparently did not hear his daughter - the deceased scold or talk
harshly to Pw1 who was in the same room with him. But he heard
loud exchange between the accused and the deceased in the other room.
This is strange because the scolding or harsh talking
directed at Pw1
from and by the deceased was closer to him. He totally missed that
only after the accused had called his wife and advised her not to
talk so loud and in that manner in order to avoid causing
father further pains or discomfort. Pw1 who appear to have been more
alert told this court that the accused's first attempt
to leave the
house, was at the kitchen door. It was after he had been stopped
there that he returned into the bedroom. His second
attempt to leave
the house was at the bedroom window. Ntate MOTEBANG KOBELI has these
events in the reverse order. Could he be
repeating the story as he
heard it repeated by the others? But he was present in the same house
at the time these events took place.
accused called his wife into their bedroom where he reprimanded or
rebuked her for talking loudly and disturbing or likely
to cause pain
and/or discomfort to her ill father the attack by his wife was then
directed at him. How dare he rebuke her. She
instantly pointed out to
her husband that is the manner she usually talks to her domestic
workers. This particular one is being
protected by her husband
because she is his mistress.
accusation was denied. As usual she felt challenged by that denial.
The denial was like adding sulphur to fire. Immediately
sparks of flames. Her anger against her husband was aggravated by
accused, it seems to me, he is not a violet person. He does not enjoy
alteration-verbal or physical. He runs away and looks
for a mediator
or intervener. When he noticed that his wife was angry and that she
has now directed the attack at him, he looked
for the way out. He
wanted to get out of her face. Because it was at night and it was
dark, his intention was to go to seek some
refuge at the police
station from where he would depart to HLOTSE the following morning.
to the kitchen door to open and go out. His wife came and stopped
him. She closed and locked the door. She took possession
of the key.
The accused went back to the bedroom. He stayed therein hoping she
would come down and forget. Perhaps she took her
eyes away from the
accused who tried to effect his escape from there by opening the
bedroom window - intended to go out through
there. The wife thwarted
that attempt. The accused went back to the kitchen door after looking
for and finding a table or vegetable
knife in the kitchen cupboard or
drawers. He tried to unscrew the kitchen door - through which he
wanted to see himself out of
stopped him. He returned to the bedroom. All these attempts to escape
show me that this man was afraid to remain in that
house with his
wife. He says she is taller, maybe she is even stronger than him.
he did or attempted to do, she quickly and easily put off as easily
as blowing off the candle. When he touched the kitchen
door trying to
unscrew it or open it with the knife, she simply asked "Ntate
Moupo what are you doing?". He ceased forthwith
and left the
scene. It seems to me that he was obsessed with or focus on his
escape from the house on that night of the 18th February
causing her so much trouble by trying to escape the wife wanted to
take possession of the knife her husband used to unscrew
door. He resisted. The struggle ensued between them. They were only
two in that room. The accused does not know exactly
when and how his
wife - the deceased received a stab wound on the left of her chest.
The conclusion is that it must be during that
struggle for the
possession of that knife. The accused only noticed blood when his
wife called Pw1and reported that the accused
has stabbed her.
definition, murder is the unlawful and intentional causing of the
death of another human being. CR SNYMAN CRIMINAL LAW -THIRD
PAGE 401. From the facts of this case the crown could not possibly
proof without a doubt that the accused unlawfully and
caused the deceased's death. The crown counsel, in her closing
address conceded and I must add, correctly so, that
committed by the accused is CULPABLE HOMICIDE.
intention to kill in almost all the murder cases, it is gleaned from
the facts and surrounding circumstances of the case. REX
No one ever expresses his or her intention to kill. The difference
between murder and culpable homicide is merely in
the form of
culpability required. Where there is no fault there can be neither
murder nor culpable homicide.
accused was in possession of a knife which unfortunately was not
produced before this court, to conduct a lawful activity -
unlock his house - or let himself out of the temporary prison his
wife had put him in. Evidence of both the crown and defence
he used that knife to unscrew the lock. There is no evidence that
subsequently after failing to secure his release or escape
intended to kill or injure his wife - the deceased.
essential elements of the crime of murder and culpable homicide are
the same except that in the murder there must always be
to kill. In culpable homicide there must be negligence. R V MTSHIZA
1970 (3) SA 747 (A) 752 D - E, R V NGOBOZI 1972
(3) SA 476 (A) 478 C
- D. NTULI 1975 (!) SA 429 (A) 436 (A).
accused was fearful that his wife was going to be physical. She
verbally abused him. From their previous encounters and/or
experiences the husband was afraid the worst may still happen. He
made every endeavor to avoid any danger of physical violence between
them. He just wanted to get out of his wife's face. Looking at
possible verdicts from the charge of murder in terms of CRIMINAL
AND EVIDENCE ACT NO. 9 OF 1981, they are culpable homicide, assault
with intent to do grievously bodily harm and common assault.
them except culpable homicide need the production before court, of
evidence establishing the accused person's intention
to commit such a
crime. If there was no intention to kill is there an intention to
injure? This I cannot find from the evidence
led before this court.
reduction of the crime of murder to culpable homicide is not
automatic. The court must be satisfied that the accused was negligent
in causing the death of the deceased. R V VAN AS 1976 (2) SA 921 (A)
accused according to the evidence before this court, was trying his
best to avoid conflict of any kind. He actually took steps
or avoid dangerous situation. There is no evidence of negligence.
although not before court, it could not have been a dangerously
looking weapon. First of all it was in the kitchen cupboard
available - it is not said to be a meat chopper. It was not okapi or
such similar knife. It is said to have been found
in pieces by the
bed or under. The accused does not know what happened to it. When he
notice that his wife had let go of him during
the struggle for the
possession of that knife, he heard her say she has been stabbed. He
then paid attention to her. He saw blood
on her chest. He rushed to
find a motor vehicle that conveyed her to the hospital then and
there. She was pronounced dead on arrival
thereat. The accused after
taking the body of his wife to the mortuary went straight to the
police station and surrendered himself.
These are not the actions of
the man who wanted to kill his wife or anyone. This was an
unfortunate dragic accident. He cannot
carry the blame for what
resulted from the struggle to free himself or secure his freedom from
his detention by his wife.
brothers - assessors agree with the fact finding in this judgment.
Accused stand up.
not found guilty and you are acquitted.
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