CRI/T/34/87
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
V
LELOKO THEKO JUDGMENT
Delivered by the Hon. Mr Justice Sir Peter Allen on the 30th day of May, 1988.
The accused is a 54 years old chief. He is indicted on a charge of murder. It is alleged that on 21 September 1986 at Motimposo in Maseru, he killed 'Masechaba Modise Radebe, a 45 years old unmarried woman who was at the time living with him as his wife.
The evidence of five witnesses given at the Preparatory Examination was admitted, including the post mortem examination report (exhibit A).
The prosecution case was that on the evening of Sunday, 21 September 1986 the accused was in Motimposo looking for the deceased 'Masechaba who had gone out somewhere. He called at the home of one Sophie Kolobe (evidence admitted) asking if she had seen his "wife". Sophie described the accused as looking very angry and carrying a stick. He went away when he found that the deceased was not at Sophie's house.
Meanwhile the deceased was drinking beer at the home of one Mahloko, according to 'Maben Motsoari
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(evidence admitted) who was also present. She described the deceased as "heavily drunk" and unable to stand up. 'Maben helped her to stand and supported her to a certain house and left her in the courtyard. Evidently that is where the accused found her on his return to his house at around midnight. Their voices were raised in a quarrel which disturbed their neighbours.
Two of these neighbours were Majara Theko (PW1), a 33 years old son of the accused and Sekhobe Phafane (PW2), a builder. Neither of them went to the scene but both described what they heard. It seems that the accused chief was suspended at the time, or for some other reason not performing his duties as a chief, because his son Majara was then acting as chief.
Majara stated that he heard his father say loudly to the deceased,"You bring men when I am not here. Your mother's vagina." The deceased replied "Leloko forgive me so that I should tell you what happened." The accused said, "Is it now that you have realised that we can talk together? Your mother's anus."
Then he heard the deceased call out, "Don't cut me there" and he heard the sound of a stick hitting someone and the deceased said, "Jo, Ntate Leloko, forgive me." The accused said, "Of course I am cutting this vagina of yours."
Majara having heard all this decided not to interfere and he simply went back inside his house to sleep. This was in spite of the fact that he was acting as chief and had a clear duty to deal with any trouble or disturbance in the area.
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The other witness Sekhobe (PW2),also heard the quarrel. He said that he heard the deceased say, "Ntate forgive me." The accused replied, "It's a long time since I've been telling you not to go out at night. Tomorrow you will know me." He added, "I will cut this vagina to show you that I don't love you any more." The deceased said, "Forgive me, Ntate. Look you are killing me." Sekhobe said that when the noise of the quarrelling stopped he went back inside his house. He also did nothing.
Some time later the accused locked the door of his home and then went out to look for one Lenka Tejane whom he claimed the deceased had named as her lover. The accused went first to the home of a woman called 'Mathebe Lebatla (evidence admitted) to ask her to show him where Lenka was staying. She said that the accused was very angry. She took the accused to the home of Sechaba Raletsatsi (PW3) whom the accused stated was in fact named Lenka Tejane, though the latter denied this in
Court.
'Mathebe and the accused arrived at Sechaba's home at some time around midnight. The accused entered and told Sechaba to get dressed and to go with him without explaining what it was all about. On the way to the accused's home they met a nightwatchman called Mokoma to whom the accused spoke saying, "This is the one that I was looking for."
When they arrived at the accused's home the accused unlocked the door and told Sechaba to go inside.
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The accused followed him in then relocked the door and removed the key after switching on the light.
Sechaba said that he saw pieces of broken pots on the floor and he found the deceased lying on the floor. She appeared to be very tired. She called out to the accused, "Ntate, I am urinating blood." He did not reply. Instead he went into another room and came back with a pair of handcuffs which he placed on the table. He went back into the bedroom and brought a stick and an iron rod and struck Sechaba with them. When Sechaba asked why he was doing that the accused replied that he wanted to do the same thing to Sechaba as he (the accused) had done to his wife (the deceased).
Sechaba said that, in spite of being injured by the accused's assault, he defended himself and he choked the accused until he raised his hand and indicated that Sechaba should release him, which he did. The accused than unlocked and opened the door and told Sechaba to go. Sechaba said that the deceased remained lying on the floor without moving during this incident and she appeared to be dead although he did not notice any injuries on her.
Sechaba stated that he did not know why the accused assaulted him as he was not the deceased's lover. He denied that the accused found him together with the deceased on that night. He said that he did not know the name Lenka Tejane.
The following morning the accused came to the house of his son Majara (PW1) and said, "Last night
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I beat my wife. I don't know whether she is dead or unconscious." He asked Majara to go and see what had happened to her. The witness Sekhobe (PW2) also went to the accused's home on that morning. Both witnesses said that they saw marks on the ground from the gate up to the door of the house as if something had been dragged into the house. There were also spots of blood on the ground. In the first room there were broken pots and ash trays lying on the floor together with some human faeces. In the bedroom they saw the deceased sitting upright on the floor with her back supported against a bed. There was blood on her mouth and nostrils and she was dead. She was wearing a black blouse and a dress.
All this was also seen by Det. Sgt. Molefi (evidence admitted) who went to the scene on that morning. The accused identified the deceased to the sergeant. He examined the body and noted the blood on her nostrils and mouth. He also found that she had a fracture on her left leg above the ankle and there was a laceration in the area of her private parts. He arrested the accused and took him to the charge office. He took the body of the deceased to the mortuary in Maseru.
On 2 October 1986 the post mortem examination of the deceased was carried out by Dr. Msulwa (evidence admitted). The body was identified to him by 'Mathabiso Radebe (evidence admitted) the mother-in-law of the deceased. The doctor found that the deceased had a laceration in the pubic area and a
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closed simple fracture of the left tibia and fibula distal. The head injuries consisted of a laceration of the frontal region on the right side and there had been bleeding through the nostrils. There was also a laceration of the lower gum and a missing upper tooth. Inside the skull was a collection of blood (cephal haematoma and intracranial haemorrhage). This last was the cause of death. The lacerations had been caused by a sharp object and the remaining injuries, including the fatal one, were caused by a blunt object. His P.M. report was admitted as exhibit 'A'.
The accused testified on oath in his defence. He said that he had lived with the deceased as man and wife for 15 years. When he came back home that night he claimed that he saw two people sleeping on the grass in the forecourt of his home. One of them ran away when he approached them. The other he found lying on the ground with her knees bent. It was the deceased and she was very drunk. He admitted that he then kicked her twice, once in the stomach and once in the private parts while he asked her who had been with her. She replied that it was a person whom she was in love with. After further questioning she told him that the man was Lenka Tejane who had been working in their garden.
The accused dragged her into the house. As they reached the door he was holding her up on her feet. As he switched on the light she staggered from him and fell backwards on to the concrete step. He said she turned as she fell and her head struck the edge of the step and that caused the fatal head injury.
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The accused did not know where Lenka Tejane was staying so he first went to the home of Mathebe Lebatla (evidence admitted) and asked her to take him to Lenka. She took him to the home of the witness Sechaba (PW3) whom the accused said he knew as Lenka Tejane. The accused ordered Lenka to go with him to the accused's home so as to see what he had done at his place. Lenka did not hesitate or ask questions. He just followed the accused to his home.
When they arrived the accused unlocked the door and they went inside. They found the deceased sitting on the floor and she said, "This is the one who was sleeping with me." Lenka denied it saying, "No, it was not me." The deceased said, "It is no use to deny it because it has already happened."
The accused fetched a pair of handcuffs from the bedroom and said to Lenka, "Now what you have done here is the situation,"
meaning apparently that Lenka had slept with the deceased. The accused picked up a stick which was as thick as two fingers, and hit Lenka on top of the head with it once. Lenka seized hold of the stick and they struggled for it. Lenka said that the accused should forgive him and he ran away through the door which the accused said he had left unlocked after they entered the house. The accused ran outside and threw the stick at Lenka but missed him as he ran off.
The accused then left the deceased sitting on the floor and locked the door and went to Mathebe's house for the rest of the night. The accused denied having beaten the deceased apart from the two kicks.
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He also denied saying that he no longer loved the deceased and that he would cut her vagina. He said that his son Majara (PW1) and the witness Sekhobe (PW2) were lying about that incident. He said that it was only Lenka whom he struck with the stick, not the deceased. He claimed that the leg fracture on the deceased was an old injury and that the head injuries were caused when she fell on to the step.
It is very clear that the deceased was extremely drunk on that evening. Whether or not the accused was telling the truth about
finding her with another man in the courtyard is not so clear. The accused admitted assaulting the deceased by kicking her twice and there was evidence that he was in a very angry mood when he was out looking for the deceased. Something clearly provoked him quite considerably.
The medical and police evidence was of numerous injuries, lacerations and bruises on her body, including a fractured leg and a broken tooth. All this indicates that she was badly beaten up. Nobody else had any apparent reason to assault her nor is there any evidence of any other person being present at the scene except Sechabe (PW3) who was brought there afterwards by the accused himself.
Furthermore the accused admitted locking the deceased in the house for the period when he left her there alone. Thus it is clear that nobody else had access to her or reason to assault her except the accused.
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The fatal head injury was inflicted in the presence of the accused. He claimed that it occurred when she fell while he was holding her but I do not believe him. I have no doubt that the accused gave her a very serious beating and that, in her drunken condition, she was unable to defend or protect herself. Even if she had fallen and struck her head on the step while the accused was beating her, he would still be responsible for the fatal injury. This is because his assault upon her was vicious and very serious and completely unlawful. Whether her fatal injury was caused by a blow actually struck on her head or by falling down while being assaulted, the fact remains that her death resulted in the course of the accused's unlawful actions and he is responsible for the result. I therefore find that he unlawfully caused her death.
I do not find sufficient evidence of the accused having formed an intention to kill her. It is clear however that the accused intentionally gave her a thorough beating. Since her death resulted in the course of that beating I am of the opinion that the offence committed by the acused did not amount to murder but, instead, he must be convicted of culpable homicide. The Assessors agree with this verdict.
Accordingly the accused is convicted of culpable homicide.
P. A. P. J. ALLEN
JUDGE
30 May 1988.
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SENTENCE
The accused is aged 54 years and he is a chief. He is a first offender and he has been on bail awaiting trial.
I will take account of the fact that he twice offered a plea of guilty to the offence of culpable homicide before this trial started, but the Crown would not accept the plea. The accused has therefore not wasted the Court's time.
The accused gave the deceased woman a very savage beating. Such lack of control and such vicious behaviour is not what is expected from a chief and a man of his age. Even if he was provoked by the deceased it was inexcusable to beat up a defenceless woman in such a serious and shameful way. In my opinion the accused is clearly unfit to hold the post and authority of a chief. In the circumstances there is room for some leniency but, at the same time, I have to consider the accused's special responsibilities as a chief.
The accused is sentenced to imprisonment for five years.
