CRI/T/27/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

RANTATA
KEMUELE

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 11th
day of November, 1988.

For the
Crown : Mr. L.L. Thetsane and Mr. S.P. Sakoane,

Crown
Counsel

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

JUDGMENT

The
accused stands charged with the murder of 'M'ateboho Senatsi at
Pontseng in the district of Quthing on 26th July, 1986.

It is
common cause that the accused killed the deceased. 'M'amonaheng
Moeletsi testified that she arrivied at the house of Mamonontsi

Maliehe where the latter was selling 'pineapple' beer, at about 5
p.m. on the date in question, a Saturday. She was in the company
of
Puseletso Mika and Pitso Tlholoane. There, among others

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she found
the accused and the deceased drinking together. The accused is
married, so also was the deceased, but it seems that they
were both
lovers. 'They were apparently at peace with another: Mamonontsi
testified that they drank from the same measure.

'M'amonaheng,
Puseletso and Pitso bought a small measure of beer, about a pint,
which they shared. At one stage deceased suggested
they all go home
but 'Mamonaheng and the two others dec lined. The deceased then
purchased more beer. 'Mamonaheng and Puseletso
and Pitso then
departed at dusk, about 5.15 p.m. it seems. The two ladies walked
slowly. Pitso walked some 300 yards ahead. After
a short while the
deceased came past them, walking fast, apparently in a hurry. Shortly
thereafter the accused came "trotting"
past them, and asked
where the deceased was: they informed him that she had passed them .
He carried on running. They carried on
walking in the same direction.

Within a
matter of five minutes, first the deceased and then the accused
approached them from the direction in which they were going.
The
accused, brandishing a knife, was chasing the deceased.

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'Mamonaheng
caught hold of the accused and remonstrated with him. He threatened
to stab her. She released him. She testified that
she could see
portion of the brown handle of the knife in the accused's hand, which
was of the clasp variety, which description
matched that of the
accused's knife produced as an exhibit. In any even Mamonaheng and
Puseletso quickly left the scene and cau
up with Pitso on the way
home.

Some four
days later the body of the deceased was found lying face downwards in
a field of sorghum stalks, some 20 paces from a
path from which the
body was not visible. The deceased's body was covered with a blanket.
Some of her clothing was bloodstained
as als was some of her
underclothing, which was found lying beside the body. The body was
taken to Quthing Hospital where a post-mortem
examination revealed
two cut wounds on the left side of the sternum, between the second
and third ribs. There was an underlying
2 cm. cut wound on the
pericardium and a 2 cm. cut wound on the left ventricle of the heart,
which had resulted in profuse bleeding
into the pericardial space.
The doctor who conducted the post-mortem examination opined that
death

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was thus
caused by haemorrhagic shock.

The
accused was arrested on 2nd August, 1986 when he was found in
possession of his knife stained with what appeared to be blood.
On
4th August he made a statement before a Magistrate.

The
accused gave evidence. He stated that he had been drinking on the
Saturday from about 10/11 a.m. up to dusk. The deceased had
joined
him during the day and they had drunk together. They both were very
drunk when they left. He had drunk "R8 worth of
beer", he
said. At dusk the deceased left with 'Mamonaheng, Puseletso and
Pitso. Thereafter he left with Thabo Moroeng. he
caught up with
'Mamonaheng and Puseletso en route. He asked as to where the deceased
was. They advised him to proceed and see "with
whom she is".

He
carried on and came across the deceased walking with Pitso. He asked
her why she had asked him to accompany her, when he now
found her
with Pitso. A quarrel ensued during which Pitso left. During the
quarrel 'Mamonaheng and Puseletso passed by. The deceased
denied
being in love with Pitso, but stated

5

that she
had been in love with him a long time ago. When she said this he
slapped her twice. Thereafter they struggled. She felled
him to the
ground, where she fought with him and hit him. It was then that he
produced his clasp knife from his pocket and stabbed
her with it
twice. He pushed her away. She attempted to stand but fell down.

He tried
to stop her bleeding. He removed her underclothing in order "to
stop the bleeding with them", he said. He then
realised she was
dead. He was frightened and sat down. He then apparently decided to
conceal the body, though he did not specifically
say so. With the aid
of a wheelbarrow, appropriated from outside a neighbour's house, he
moved the deceased's body half a kilometre,
to the sorghum field,
subsequently returning the wheelbarrow to where he had found it.

As to
'Mamonaheng's evidence, the accused completely denied ever chasing
the deceased with an open knife, stating that the deceased
had left
'Mamonontsi's house with the other two ladies and Pitso. That indeed
was the evidence of Mamonontsi, whose deposition
was formally
admitted by the defence. This aspect 'Mamonaheng

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specifically
denied. It is significant however that 'Mamonontsi testified that:

"Deceased left first. She went with Pitso and 'Mamonaheng,
Puseletso all from her village. Shortly she returned and went to
the
accused. She then left. When she returned she just chatted with them
before leaving. The accused and others were still drinking.
She did
not drink."

The fact
that the deceased left the house first and then returned shortly
thereafter,may indicate that she never left in, or rather
remained
in, the company of the other three. The fact that she did not drink
on returning,indicates that she wished the accused
to leave - she
had, as 'Mamonaheng testified, earlier suggested they all go home.
The fact that she walked past the other two ladies
quickly and that
the accused "trotted" past them, does not indicate that the
deceased was avoiding the accused, nor that
the latter was chasing
her, as a result of something that had transpired at 'Mamonontsi's:
the latter testified that they had had
no quarrel at her place. All
the evidence indicates that the deceased was walking quickly, the
accused having

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declined
to accompany her straight away, in order to seek the company of Pitso
on the way home. Presumably the accused came 'trotting'
after her,
having finished his drink and decided to accompany her home. In
brief, I see nothing sinister in his conduct up to that
stage. No
doubt the deceased, and ultimately the accused, caught up with Pitso
when, in the accused's own evidence, the quarrel
erupted. It is there
of course that his evidence is at variance with that of 'Mamonaheng.

The
accused's evidence requires examination. Clearly he would have the
Court believe that he was so drunk as to be incapable of
forming any
specific intent. At the conclusion of his evidence, he stressed that
he had been drinking with the others, conveying
the impression that
he had not drunk all of the beer which he had bought. But his
evidence in chief was that "I believe I
drank R8 worth of beer".
'Mamonaheng testified that she and the other two could afford no more
than one pint of beer between
them,costing 20c. At that price the
accused then consumed 40 pints of beer. In cross-examination indeed
he testified that he drank
100 pints of beer. Either figure is of
course

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wildly
exaggerated.

His
evidence of the deceased's assault upon him is obviously unrealistic.
He testified that both he and the deceased were very drunk.
If she
was that drunk, then I cannot see that she could physically overpower
the accused. To stab an unarmed drunken woman twice
in the chest
cannot in any way be said to constitute reasonable self-defence. If,
as the accused says, he was pinned down by the
deceased, it is
difficult to appreciate how he could extract a clasp knife from his
trouser pocket and open it. He testified that
with one hand he caught
the blade in the edge of his trouser pocket and, pulling with that
hand, thus opened the knife. The blade
is recessed into the handle
however. It does not project therefrom, nor is there any projection
thereon, which might serve to engage
in the material of the trousers.
Again, if the accused was pinned underneath the deceased, I fail to
appreciate how he could manage
to strike her twice on the chest
rather than, elsewhere.

In
contrast, the accused mentioned nothing of any self-defence in the
statement made to the Magistrate.

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It reads
in part:

"I overtook her at the fields, she was with a person named
Pitso. Pitso went away. We had a quarrel with this woman. I stabbed

her with a knife when she told me that she was in love with Pitso
...".

I cannot
imagine, had the deceased attacked him and had he acted in
self-defence, that he would not immediately advance such defence
to
the police and the Magistrate. The confession was written on the
usual cyclostyled form, wherein the questions asked of the
accused
establish the voluntariness of the confession. No objection was made
to its admission. Indeed it was formally admitted
by the defence. I
am satisfied beyond doubt that it was made voluntarily and is hence
admissible. The confession was made nine
days after the offence, when
no doubt the accused was still suffering from remorse and in any
event he had less opportunity for
concoction. On the aspect of
self-defence his confession is clearly contrary to his evidence.

It was
put to the accused that if he was so

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drunk, it
was difficult to appreciate how he could convey the deceased's body
in a wheelbarrow for a distance of half a kilometre,
partly through a
sorghum field. He replied that he had had time to become sober, when
he went to his home and sat down. In his
evidence however he made no
mention, as he did in his confession, of the fact that he had,
immediately after he had killed the
deceased, conveyed her body to a
field, returning thereafter with the wheelbarrow to convey her body
to the sorghum field. Quite
clearly the act of carrying the body to
the first field, without the aid of a wheelbarrow, is not that of a
drunken man.

Again,
the accused made no mention whatever in his confession of consuming
any alcohol. Further, while he mentioned Pitso, the cause
of the
quarrel, in the , confession, he made no mention of 'Mamonaheng and
Puseletso therein, although they had allegedly witnessed
at least the
quarrel.

I found
'Mamonaheng to be an impressive witness, who was unshaken in cross
examination. On the other hand the accused was a most
unimpressive
witness. Apart

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from his
demeanour, his story of drunkenness and self-defence cannot
reasonably be true, and I accept 'Mamonaheng's version of what

transpired, indicating that when the accused encountered the deceased
with Pitso he gave chase to her.

As for
the accused's confession, it has a ring of truth about it, where it
says that the accused stabbed the deceased simply because
she told
him that she was in love with Pitso. I am satisfied that it is true.
I cannot see that the strict rules of admissibility
would operate
unfairly against the accused. He was given all due warning before
making the confession and I decline to exercise
my residual
discretion in his favour. As to further proof of the corpus delicti
(see section 240(2) of the Criminal Procedure &
Evidence Act
1981) there is ample evidence aliunde.

I find
therefore that the accused stabbed the deceased after pursuing her,
not in self-defence, but in a jealous anger. There can
be no question
of provocation. Both the accused and deceased were married to other
partners and there can be no question therefore
of any special
relation­ship between them.

In his
evidence in chief the accused testified to stabbing the deceased
twice. "I saw as if it was on the

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left side
of the chest", he said. 'Mamonaheng's evidence of the accused's
angry pursuit of the deceased with open knife, indicates
a
determination by the accused to injure the deceased. This he
did,striking her twice immediately over the area of the heart.

There is
another aspect. Post-mortem examination revealed that the deceased's
right ear had been completely cut off. The doctor
opined that the
wound "could have been within a week" and that the ear must
have been cut with a sharp instrument. The
post-mortem examination
was held 10 days after the deceased's death. All the evidence
indicates, and the accused himself agrees,
that the deceased's ear
had not been severed before they met that Saturday. The accused
denies severing the ear. The only reasonable!
inference however is
that he did so, apparently after the fatal assault. Even if the
deceased was dead at that stage, it establishes
the extreme of his
jealous anger.

The
accused struck twice, as I have said, on one of the most vulnerable
parts in the body. The learned Crown Counsel Mr. Thetsane
submits
that there is no proof beyond reasonable doubt of direct intention to
kill. I agree. There is evidence of drinking, whereby
the passions
were inflamed,

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but the
accused's behaviour was not that of a man incapable of forming a
specific intent. There is the evidence of chasing the deceased
with
open knife.

It
reveals a deliberate intent at the time to at least do grievous harm.
I cannot then see how the accused, thereafter striking
not once but
twice at the heart with a deadly sharp knife, could not have forseen
the possibility of death. Indeed am satisfied
beyond reasonable doubt
that he subjectively foresaw that possibility but was reckless as to
such.

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 11th Day of November, 1988.

(B.P.
CULLINAN)

CHIEF
JUSTICE