CRI/T/12/88

IN THE
HIGH COURT OF LESOTHO AT QUTHING

In the
matter between:

REX

v

TSOTLEHO
LILLANE

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan at Quthing on
the 10th day of November, 1988.

For the
Crown : Mr. L.L. Thetsane, Crown Counsel

For the
Accused : Mr. S. Moorosi, Chief Legal Aid Counsel

JUDGMENT

The
accused stands charged on two counts. In the first count it is
alleged that on the 7th of March, 1987, at Ha Rasepelemane in
the
district of Quthing, he murdered Bolaweni Ndamada. In the second
count it is alleged that upon the same occasion he assaulted
the
deceased's mother, Madudure Ndamada with the intention of causing her
grievous bodily harm.

On the
day in question a group of villagers including the accused, the
deceased and the deceased's 70-year old mother were gathered
at the
house of Hlalaphe

2

Kwele
attending a wheat-harvesting party. The evidence indicates that those
gathered there were later in the evening quite drunk.
Difficulties
commenced when the accused apparently insulted his host and the
latter expelled him from the house.

The
accused went out of the house and closing the door thereof said,
"None will go out". The deceased went out, in an
apparent
effort to pacify the accused, his brother-in-law. Madudure also went
out. She observed the accused raise a "lebetlela"
stick and
strike the deceased. The deceased fell down. Madudure went over to
intervene and tried to raise the prone deceased. The
accused struck
again with the stick, breaking Madudure's arm at the elbow. According
to Madudure, the accused said, "I am
going to kill you."
The accused struck once again at the prone deceased. Thereafter the
deceased and his mother were taken
to Quthing hospital.

Madudure
testified that the deceased was alive, "but just slightly."
"He was unable to see and speak", she said.
Madudure spent
some two weeks in hospital, where she was treated for a fractured
elbow, as a result of which she is unable to-day
to straighten her
left arm.

3

Meanwhile
however, when the deceased arrived in Quthing hospital, an operation
on the skull was carried out immediately. He was,
apparently, on his
mother's evidence, admitted to hospital in a coma. After the
operation he remained in a coma, which however
deepened on the 10th
of March. He never came out of the coma and subsequently died on the
12th of March. The doctor who conducted
the post-mortem examination
opined that the death was caused by cerebral damage which in turn was
caused by multiple fractures
of the skull.

The first
matter which arises is the possibility of a novus actus interveniens.
The evidence however indicates that the cause of
death arose not from
the disempaction operation, performed in order to relieve the
pressure to the brain, but by cerebral damage
caused by the multiple
fractures of the skull There is no evidence whatever that such
operation combined with the effect of the
original injuries to cause
death or that the operation aggravated the original injuries and so
hastened death. There is no suggestion
whatever that the operation
was not carried out in good faith and with proper skill.

I am
satisfied accordingly that the injuries inflicted by the accused
caused the death of the deceased. There is the evidence of
the words
used

4

by the
accused,namely "I am going to kill you", but such words are
in no way conclusive and are no doubt often used in
an excess of
anger. The "lebetlela" stick used by the accused is a heavy
one, and is quite clearly, when wielded with
force, a lethal weapon.
There is however the evidence of drunkenness, and the learned Crown
Counsel Mr. Thetsane very properly
submits that due to such evidence
there is no satisfactory evidence that the accused intended to kill
the deceased (dolus directus),
nor indeed that the accused
subjectively foresaw the risk of death but was reckless as to such
(dolus eventualis).

The
learned Chief Legal Aid Counsel Mr. Moorosi naturally adopts that
submission. I find myself in agreement therewith. I am not
satisfied
beyond reasonable doubt that the accused had the necessary intention,
dolus directus or dolus eventualis. I am satisfied
however that he
killed the deceased unlawfully.

As to the
second count, although the accused remained silent in his defence, in
his plea to the charge he stated that he aimed the
particular blow at
the deceased rather than the deceased's mother. Nonetheless the
question of transferred malice arises. The aspect
of his intention
towards the deceased

4

is
therefore relevant. The evidence of drunkenness Is such that I am not
satisfied that the accused was capable of forming the specific

intent, that is, to cause grievous bodily harm. I am satisfied
however that in the least, he intended to assault the deceased.

The
Assessors are in agreement with my findings. I find the accused on
the first count not guilty of murder as charged but guilty
of
culpable homicide and I convict him accordingly. On the second count
I find him not guilty of assault with intent to do grievous
bodily
harm, but guilty of common assault and I convict him accordingly.

Delivered
at QUTHING on the 10th Day of November, 1988.

(B.P.
CULLINAN)

CHIEF
JUSTICE