CRI/T/9/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

MOKOTO
MAKAKANE

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan 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 with the murder of Mpine Makakane on the 21st
September, 1987, at Ha Steling, Tebellong, in the district
of Qacha's
Nek.

The
prosecution evidence and the evidence of the accused himself reveals
a harrowing story. It goes back to 1962. In that year the
father of
the accused (then aged 13) departed from home on horseback for a
nearby dispensary. He did not return that evening. The
following day
his horse was found close to a nearby river. Thereafter the father's
body was discovered in the river. The accused
testified that some
four people, including the deceased, were

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arrested
by Che police, apparently on suspicion of being involved in what a
neighbouring Chief, Chief Sekake, testified was a ritual
murder. The
four were subsequently released however.

The
accused, rightly or wrongly, formed the conviction at the tender age
of 13 that the deceased, a Chieftainess, was responsible
for the
death of his father. He was unable to dispel the foreboding thoughts
from his mind. Six years later, at the age of 19,
he still had not
succeeded in dispelling them. His grandmother advised him, telling
him that "God is great: he will help us:
we shall grow up".
He could not agree with her however, and at that stage decided that
he would revenge his father's killing.
This he ultimately did, 20
years later, that is, in the night of the 21st September, 1987.

He told
his younger brothers Teboho and Lehlohonolo Makakane during the night
that he wished to kill the deceased, as he wished
"to raise my
father's head which disappeared among those people". His
brothers did not reply, as they considered he was
joking, as
apparently he had said this many a time before. Indeed, he even
advised his wife of his intention and ignored her protestations
in
the matter.

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He left
his home during the night, armed with a small spear and a knife and
approached the house of the elderly deceased aged 70
years. She
refused to let him in, telling him to come the following day. He
pushed the door open however, informing her that he
intended to kill
her. He stabbed her once with the spear, saying, "I want the
head of my father." She said to him, "Oh,
Mokoto, are you
still pursuing that thing of my uncle". She screamed He stabbed
her repeatedly until she collapsed. The accused
said to her, "You
should also die like my father, whom you killed in this manner. I
told you in advance." He heard the
old lady groaning: "I
believed that she had not died", he said. He then set about the
grisly task of severing the deceased's
head from her body with his
knife. Taking up the severed head, he departed.

Thereafter,
in the early hours of the morning, he went around Tebellong knocking
on the door of relatives' houses, displaying the
severed head of the
deceased. He called at the house of his brother Blom, displaying the
head to the latter's son Thuso, who had
opened the door. He likewise
called to the house of Lehlohonolo and Teboho and thereafter to the
house of a neighbour Kanono Moliko,
where he insisted on displaying,
by means of a torch, the severed head to the latter's wife peering
out

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through
the window, only for her to hastily shut the window. Thereafter he
returned to the deceased's house and replaced the severed
head beside
the corpse of the deceased.

The
following day he again made no secret of what he had done. He told
Chief Sekake, and a neighbour Hlopheho Moeti, of what had
transpired.
Earlier indeed he had informed others at a drinking place, of what he
had done. He met Chief Sekake, while en route
to the police: the
latter indicated that he should remain there until the police
arrived. When they arrived the accused led them
to the scene of the
crime and handed over the spear and knife to them.

Two days
later the accused made a full confession before a Magistrate. The
Magistrate's deposition establishes that the confession,
on the usual
cyclostyled form, was completely voluntary. No objection was made to
the admission thereof. Indeed the contents of
the Magistrate's
deposition at the Preparatory Examination, with the confession
attached, was formally; admitted by the learned
Chief Legal Aid
Counsel Mr. Moorosi. So also indeed were the depositions of six other
witnesses at the Preparatory Examination,
I consider incidentally
that in the circumstances of the case the statements made by the
accused to

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Chief
Sekake and others must constitute confessions as such. I am satisfied
beyond reasonable doubt however that the confession
made to the
Magistrate and to Chief Sekake and also the confessions made to
others were completely free and voluntary and are hence
admissible.

There is
ample evidence of the corpus delicti, The accused, as I have said, on
his ghoulish mission throughout the village, in the
dark of night,
bearing the severed head,openly displayed the accomplishment of his
grisly task.

The
accused himself gave evidence, which served to enlarge upon his
confessions. The main confession, supported by the other confessions

and all the other evidence, has a compelling ring of truth to it, and
I accept that it and the other confessions are true. As to
my
residual discretion to reject the confessions, I cannot see that the
strict rules of admissibility would operate unfairly against
the
accused, particularly in view of his own evidence, and I decline to
exercise that discretion in his favour.

As to the
remains of the deceased, post­mortem examination revealed a total
of nineteen stab wounds, in particular seven on
the chest (some

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of them
being very deep) and eight on the back. It appears that the frail old
lady, as the accused himself testified, despite such
grievous wounds,
still clung to life: the doctor who conducted the post-mortem
examination opined that the severing of the head
from the body was
the cause of death.

The
accused's evidence, as I have said, consisted of an expansion upon
his confessions. He again openly admitted that it was his
intention
before ever going to the house of the deceased, to kill her. The
learned Crown Counsel Mr. Thetsane submits that there
can be no doubt
of the accused's intention. I am indeed in no doubt whatever that he
intended (dolus directus) to kill the deceased.

There is
the accused ' s statement, within the main confession, that he drank
some beer the morning after the killing, at a drinking
place. In
fairness to him, there Is the evidence of a witness at the
Preparatory Examination, who was not called at the trial,
who
testified that that day (22nd September) the accused was drunk. There
is absolutely no evidence however that the accused had
partaken of
alcohol before he killed the deceased.

There can
be no question of provocation.

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Accepting
that he subjectively believed that the deceased had brought about the
death of his father, one could well imagine such
information, when
the accused was thirteen years of age, amounting to sudden and grave
provocation. One cannot imagine those conditions
prevailing six years
later however, when at the age of nineteen he formed the specific
intent to revenge his father's death. They
certainly did not prevail
a further twenty years later, when he premeditatedly and
coldbloodedly carried out his revengeful and
heartless purpose.

I am
satisfied beyond reasonable doubt that the accused unlawfully caused
the death of the deceased and that he did so intentionally.

The
Assessors are in agreement with my findings.. I find the accused
guilty of murder as charged and convict him accordingly.

Delivered
at QUTHING This 10th Day of November, 1988.

(B. P.
CULLINAN)

CHIEF
JUSTICE