CRI/T/29/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

V

HAMANAKA
TLHAKOLA

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 24th day of May 1988

The
accused is indicted on a charge of murdering one Mofotha Majoro on 3
February 1986 at Mahlanyeng in Roma. The accused is a 42
years old
businessman and traditional doctor.

At the
end of 1985 the accused decided that he wanted to purchase a large
refrigerator for his butchery in Roma. The deceased, aged
about 41
years, was apparently a customer at the butchery and an acquaintance
of the accused but not a friend. The accused was
told that the
deceased had an account at a store in Maseru which sold refrigerators
among other items. He approached the accused
and they went to the
shop together and a gas refrigerator was selected. The accused said
that he paid M800 on the deceased's account
as a deposit on the
refrigerator which was to be ordered and collected later. A receipt
was issued in the deceased's name and he
kept the receipt for the
accused.

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Three
weeks later the accused had still not received the refrigerator so he
went to see the deceased who said that he had not been
into Maseru to
enquire about it. It was agreed that they would both go to the shop
on Monday 17 January 1986. On that morning the
accused went to the
deceased's house but he was not there. The deceased's wife, Mathethi
Majoro (PW3) told the accused that the
deceased was out in the Roma
area somewhere. The accused waited until noon but the deceased did
not appear. The accused told Mathethi
that he would return on the
following morning and that she should tell the deceased to be there.
However, he was not there the
next day and, according to the accused,
he went about 15 times thereafter and could not find the deceased.

The
accused then went very early, at about 5.00 a.m., on Friday 31
January and found the deceased in bed. The accused demanded the

receipt and the deceased searched among some of his papers and handed
one over to the accused. But it proved to be only a dry-cleaning
slip
and the accused rejected it. The deceased shouted at his wife but she
said she did not know where the receipt was. The accused
told the
deceased to get his passport to prove his identity and they would go
to the store in Maseru and explain about the lost
receipt. The
deceased refused saying that he was not an errand boy for the
accused.

The
accused became angry and so the deceased agreed to go to Maseru with
him. They went to the bus stop but instead of getting on
to a bus to
Maseru the

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deceased
got into one and went towards the University. The accused followed
him and the deceased went into the police station and
made a report
against the accused and stated that he did not know the accused at
all. The police told them to go outside and settle
their dispute. The
deceased agreed to refund the money to the accused on the following
Tuesday, 4 February, but he did not do
so because he was dead by
then.

Before
that, according to the deceased's widow, Mathethi (PW3), the accused
came to their house again on the evening of Sunday 2
February asking
for the deceased, who was not there. She said that the accused was
angry and that he told her to tell the deceased
that he (the accused)
had been to see him and that the accused added, "I could be
killing these children but I have got no
grudge against them. I want
the owner of the house."

The
accused was in an angry mood and carrying a stick. When he left,
Mathethi went towards her parents' home but met the deceased
on the
way and told him of the incident. The deceased reported the threats
made to his family by the accused to Det. Trooper Mosili
of Roma
police. His testimony was admitted.

The next
day, Mon 3 February 1986, in the late afternoon the accused went to
Mamokhukhu's place at Mahlanyeng village to drink Sesotho
beer. He
was sitting with various drinking friends, including Tsotsi Monaheng
(PW1). The deceased arrived outside in the road.
He was was with
Rampolla Matobo (PW2) and the late Ts'ele.

4

The
deceased remained in the road while the other two went inside to
drink beer. The deceased called out to the accused using his
nickname
"Koete" asking him to come out to speak to him. Tsotsi said
that the accused replied, "I won't come there."
The
deceased called again and the accused went towards him. The two of
them walked some distance away out of the hearing of the
witnesses so
as to talk privately. There is thus only the testimony of the accused
for what they said to each other.

According
to the accused the deceased said that he had heard from some people
that the accused had been saying that the deceased
had eaten his
money. The deceased then added that the accused would get his money
at "the junction of hanyenye". He then
said, "Your
mother's vagina" and started to punch the accused on the chest.

The
witness Teboho Letuka (PW4) said he came along the road and saw the
deceased punching the accused and challenging him to fight.
The
deceased then tried to remove a pole from the fence but it was held
in place by wire so he failed to pull it out of place.
He returned to
the accused and punched him again. Letuka said, "Men, what you
are doing is not good." They ignored him
and the deceased
punched the accused again saying, "When are you going to fight?"

The
accused than produced his knife (exhibit 1) and stabbed the deceased
in the chest. The deceased called out to Ts'ele who was
in the bar.
"Tsele, bring your stick. This person is finishing me."

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The
witnesses Tsotsi (PW1) and Rampolla (PW2) and others went to see what
was happening. Letuka (PW4) said to them, "You see,
I've been
telling you not to do this. Now he has stabbed you."

The
deceased ran past Letuka, trying to escape from the accused who
followed him. The deceased fell down near to a shop and the
accused
jumped on top of him and knelt on his chest and stabbed the deceased
in the chest and stomach a number of times. None of
the witnesses
made any attempt to help the deceased or to stop the accused. They
just stood watching and being completely useless
until the accused
got off the deceased and walked away to the place he was renting
nearby.

The
deceased by then was bleeding badly but still alive. He was taken to
hospital in a car but he died on arrival at the hospital.
Meanwhile
Det. Tpr. Mosili was looking for the accused in order to question him
about making threats to kill the deceased's children.
He was informed
of the death of the deceased and he went straight to the accused's
home at Mahlanyeng. There he found the accused
outside his house with
a basin of water washing some blood off his hands. The accused was
asked to explain this which he did. The
accused was then arrested and
taken to Roma Police Post where the detective was informed that the
deceased had just died.

He went
to Roma mortuary and examined the body and counted 21 open wounds in
the deceased's chest, abdomen and right arm. The body
was taken to
Maseru

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for post
mortem examination by Dr. Joseph (whose testimony and report were
admitted). The deceased was identified to the doctor
by the
deceased's twin brother, Motsarapane Majoro (whose testimony was
admitted). In the P.M. report (exhibit A) the doctor found
multiple
stab wounds in the chest, abdomen and right arm with internal
injuries to the right lung and liver and intestines. The
doctor's
total was 13 wounds and he found that death was caused by excessive
internal bleeding.

The
accused testified in his defence and he described the quarrel with
the deceased over the purchase of a refrigerator as already
set out
above. He denied threatening to kill the deceased's children but
admitted that he was very angry about being cheated out
of his money
by the deceased.

He agreed
that he called the deceased to come out of the bar so as to speak to
him about the matter. His version of events agreed
with that of the
prosecution witnesses that the deceased first insulted him and then
started punching him and challenging him to
fight. The accused stated
that the deceased did in fact succeed in pulling up a fence pole and
then he hit the accused on the head
with it. By then the accused said
he had stabbed the deceased four times in the chest in an attempt to
stop the assault on him
by the deceased. Both continued fighting and
the accused stabbed him another four times.

The
deceased cried out that he had been stabbed and ran away towards the
store. The accused said he chased after the deceased who
then fell
down by the store. The accused agreed that he knelt on the chest of
the

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deceased
and continued stabbing him repeatedly in the chest and body although
the deceased was by then help­less and unresisting.

When
asked to explain why he stabbed the deceased so many times and why he
continued to do so even after the deceased had fallen
down, the
accused kept re-re-beating in Court that he had to keep on stabbing
"because nobody intervened to stop the fight."
He persisted
in saying that without intervention by anyone else he had to continue
the fight. He could not agree with the suggestion
put to him that it
was for him to stop fighting whether or not anyone else intervened.

Although
the accused was dressed quite smartly in Court and be called himself
a businessman, in fact he appeared to be of a very
low grade of
intelligence and understanding. He was not an impressive witness. It
appears that he entirely lost control of himself
once he started to
stab the deceased, or perhaps he just did not try to control himself.

It seems
very likely that the deceased cheated the accused out of his M.800
and the refrigerator. In addition, the deceased acted
very
provocatively by constantly avoiding the accused's enquiries about
it. He was even more provocative on the day in question
when he first
insulted the accused and then physically attacked him. The accused
was entitled to defend him­self and it is
not surprising that he
responded to the provocation offered to him.

However,
that did not justify his using a deadly weapon such as the knife,
and, in any case, certainly

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more than
once so as to defend himself. There was no justification for the
repeated stabbings and, most particularly, for the savage
attack on
the deceased after he had run away and had fallen down helpless. The
accused was then no longer defending himself and
the provocation in
my opinion was not such as to explain or justify that attack. The
accused appears to have lost all control of
himself and to have
behaved like a homicidal maniac. Whether he stabbed 17 or 21 times it
makes little difference. By pursuing
the deceased and renewing the
attack on him the accused demonstrated a purpose i-e., the formation
of an in­tention to kill.

There was
some suggestion by the eye-witnesses that the accused might have been
drunk, but in fact there was no evidence of this.
The accused himself
did not claim that he was drunk. Indeed he was able in Court to
explain in detail exactly what happened throughout
the incident. He
made it clear that he was conscious all the time of what was
happening and of what he did. Furthermore, he showed
no dismay or
horror concerning this murderous attack and he ex­pressed no
sorrow or remorse for what he did. In fact he appeared
to think that
he was fully justified.

I find
that ho went far beyond what might have been reasonable and
justifiable in his own self-defence. I further find that he was

undoubtedly provoked by the deceased to a considerable degree.
Section 3 of the Criminal Law (Homicide Amendment) Proclamation,
1959
(No. 42/59) provides that such a killing done in the

9

heat of
passion, caused by sudden provocation before there is time for the
accused's passion to cool, re­duces the crime from
murder to
culpable homicide. It is therefore only a partial defence to a charge
of murder.

Mr
Ngakane for the defence asked the Court to find that the provocation
in this case was such that the seriousness of the offence
should be
so reduced. I think that this might have been possible if the accused
had stopped when the deceased ran away from him.
But he chose to
chase after the deceased and then quite deliberately to kneel on him
so that he could not move, after which he
continued stabbing him
repeatedly. In my view this could not possibly be justified by the
sort of provocation offered. It was a
clear and deli­berate and
successful attempt to finish off the deceased.

In the
circumstances I am of the opinion that the proper finding and verdict
is that the accused was guilty of murder.

However,taking
all the circumstances into con­sideration, most especially the
deceased's earlier behaviour in cheating the accused
and his later
be­haviour of acting so provocatively, I am satisfied that there
were extenuating circumstances in this case.
The Assessors agree with
this verdict.

Accordingly,
the accused is convicted of the offence of murder in extenuating
circumstances.

P.A.P.J.
ALLEN

JUDGE

24 May
1988

Mr
Ngakane for the defence

Mrs
Mophethe for the Crown

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SENTENCE

The
accused is aged 42 years and married with a family and a first
offender. He has been on bail awaiting trial. He was considerably

provoked but he stabbed the deceased repeatedly with a knife quite
unnecessarily. Such violent behaviour is totally un­justified
and
unacceptable. Accused must learn that he can not take the law into
his own hands. If he really is a traditional doctor his
business is
to heal not to kill others.

The
accused will go to prison for five years.

P.A.P.J.
ALLEN

JUDGE

24 May
1988

ORDER

The knife
(xhibit 1) is to be destroyed.

P.A.P.J.

ALLEN
JUDGE

24 May
1988