CRI/T/41/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

MATIIBA
MAZLENGANE

REASONS
FOR SENTENCE

Dictated
on Tape by the hen. Chief Justice Mr. Justice T.S. Cotran on 19th
August 1982

The
accused was indicted before me on 17th August 1982 on two counts of
murder and one count of assault with intent to cause grievous
bodily
harm. She offered to plead guilty to Culpable Homicide on both the
first two counts and to assault common on the third count.
The Crown
was prepared to accept her plea of guilty to Culpable Homicide on
both counts but not her plea of guilty to assault common.

After a
period of consideration the Court accepted her plea in respect of
count II and entered such a verdict after the Crown outlined
the case
but not in respect of count I and III in which I directed that the
trial should proceed. After this ruling the accused
changed her plea
to one of guilty on count III (assault with intent to do grievous
bodily harm) but not on count I. A verdict of
guilty as pleaded was
accordingly entered on count III.

The
defence admitted all the evidence taken on deposition before the
committal magistrate and called the accused to testify. At
the end of
the case the court found the accused guilty of Culpable Homicide (not
murder) on count I as she had originally intended
to plead.

Sentences
of imprisonment were passed on all three counts but these were wholly
suspended on certain conditions.

The
reasons for the relative leniency meted to the accused ought to be
given. She is aged 30 with four children

2

and
married to a rather lazy husband who did not work. She has for some
years been supporting him and the children by seeking a
small income
from the sale of vegetables and fruits. Even then she was unable to
cope and had to send the two elder children (aged
14 and 12) to her
own parents in the mountains.

Her
husband is, and had been, unfortunately, a ladies man and there had
been problems between them on this score the last of which
occurred
about one week prior to the incident giving rise to these proceedings
when she caught him with an unknown woman in her
house at night. The
woman fled. The accused left the matrimonial home and repaired to her
aunt in Alwynskop. A day or two later
her husband sought her
forgiveness and she promised, reluctantly if I may add, to return
home after a few days.

On her
return home on the 25th May 1981 she found a strange woman at her
home and she learnt that her name was Baleka (the victim
in count I)
and she was told that her nephew Mcxenezela, a young man living in
the same compound with her, and whom she helped
bring up, was the
person who had abducted Baleka from her parents with the intention of
marrying her. She accepted this as the
true situation but on the
following day she heard village gossip. She ignored this. however in
the evening of the same day she
was cutting vegetables with a small
knife (Exhibit A) in her house; her youngest child aged 2 and 8
months was nearby. She was
called to the court yard outside. Her
husband, his mother Noamen, (accused's mother-in-law) and her aunt
Xhasiwe (Noamen's sister
and mother of Mcxenezela and the victim in
count II) were there. In the presence of her husband,they broke to
her the news that
Baleka was in fact abducted not by her nephew
Mcxenezela but by her husband. She said the knife was in her hand
because she did
not want to leave it next to the child who might
injure himself with it when she was called to the forecourt.

After the
news was broken to her she went beserk. She first stabbed her husband
Ngakobane (count III) then went back into the house
and stabbed
Baleka four times (count I) which resulted in her death a day later,
and when her aunt Xhasiwe attempted to intervene
she received one
stab wound in the heart and died instantly.

In her
evidence the accused says she just did not know what she was doing -
indeed with regard to her aunt

3

Xhasiwe
she does not remember stabbing her at all, but she was told later
that she stabbed Xhasiwe when the latter tried to calm
her down.

My
assessors and I have no doubt at all that in the circumstances of
this case the Criminal Law (Homicide Amendment) Proclamation
42 of
1959 is applicable and she is entitled to its benefit and her crime
is reduced to Culpable Homicide on the grounds of provocation.

In order
to assess the sentence to be imposed on her the Court called her
husband. He admitted he was rotten, confirmed that the
accused had
never exhibited any violent traits before, that her story to Court
was true, that his evidence at the Preparatory Examination
that
Baleka was abducted by his nephew was not true, and finally promised
the Court to turn a new leaf. He wants his wife back.

Despite
some of the risks involved in a wholly suspended sentence, we have
been so impressed with the accused's integrity that we
were prepared
to take a chance to enable her to go back to her home resume normal
life. We have taken into account that she had
been in custody for
nearly 15 months. We trust the accused will not let us down and her
husband will do no act that may result
in a repetition of this
tragedy.

CHIEF
JUSTICE

19th
August, 1982

For
Crown: Mr. Kabatsi

For
Defence: Mr. Mlonzi