HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of March. 1989.
is charged with the murder of Thebane Pakisi allegedly committed
intentionally and unlawfully on 20th April 1987 at Ha Chabane
district of Qacha's Nek. Accused pleaded not guilty to the charge.
depositions at the preparatory examination in the court below were
admitted. The admissions were accepted by the Crown.
deceased's wife Maboemo Pakisi, P.W.2 deceased's brother who is also
accused's brother Ella Pakisi and their close relative
Moletsane Makhooane formerly Moletsane Pakisi were however cross
examined with a view to laying a foundation for a series
misunderstandings, quarrels and bad blood that existed not only
between them and accused but between accused and deceased and
between deceased and the father to ell these three brothers as
forming the background to the tragedy that befell the deceased.
purpose of this endeavour by the defence is not to pre-empt the
Court's verdict in any way but to lay a foundation for factors
taken into account should an adverse verdict
returned by the Court at the end of the day. Otherwise as it is wont
to do the crown must discharge its onus beyond a reasonable
facts are admitted a brief summary thereof will suffice.
day in question accused went to deceased's place. He had a blanket on
under which he had shielded' a sword about 2½
to 3 feet long.
Its blade is sharp. Its handle is about 6 inches long. The sword was
handed in marked exhibit "1".
entered deceased's house, greeted the occupants consisting of members
of deceased's household i.e. P.W.1 P.W.2 deceased
and young children.
Accused's greeting was responded to cordially.
was bare-footed. He moved next to deceased who was sitting and
relaxing on a chair while his wife was preparing the evening
without warning thrust his sword into deceased's chest. It went
through the heart and protruded at the back of deceased.
had only heard the sound accompanying the thrust of the sword through
deceased's muscles on seeing what had happened
screamed. P.W.2 tried
to rescue deceased, but it was too late.
another managed to disarm accused. Deceased walked a few paces
outside but fell and died.
'Mamorena Mohapi and other villagers raced to the scene following the
alarm raised by P.W.1. They helped carry deceased into
the house. .
accused came back and said that he had only come to see that deceased
was dead for if he wasn't he wanted to finish him off.
saying he was going to report himself at the Police Station. However
as he went via P.W.3 he informed
latter that he had killed deceased. Asked why, he said he had no
reason. P.W.5 persuaded accused to put up at his place for
Then villagers came and arrested him and handed him over to the
mortem report shows that death was due to cardiac temponade (a thrust
through the heart) caused by a stab wound.
submitted that accused did this fully knowing what would ensue and
that he desired just that end.
in a sworn statement that he made from the witness box elaborated on
a feud that existed between him and deceased spanning
a period of no
less than four years and culminating in his emotional stress that he
suffered when his own wife who was in his company
was called by
deceased and the wife obliged leaving accused smarting under this act
of contempt towards him.
he put through his counsel to the Crown witnesses and it was denied
save that none of them including his father has bothered
to come and
see him in jail since his arrest to date - is that he and deceased
were engaged in dagga selling enterprise wherein
he was cheated by
deceased of a good part of his own share with the result that out of
M600 he only got M196. He said deceased's
wife knew of this episode.
Further that his radio was burnt by deceased who also captured his
donkeys forcefully and sold them.
He also referred to unacceptable
behaviour by deceased who roped his horses among his crops in his
referred to occasions when deceased was threatening to shoot him with
a gun. Also when he threatened to stab him with a knife
twice at Thekong and twice in Lesotho. Ho referred to deceased's
hostile and violent attitude to their father and lastly
he slightly remembers events of the fateful day because then he was
confused end was in a kind of a trance from which
he recovered when
he was in the cell already under
the history of the long feud he refers to, I am not persuaded that it
could have any bearing on the case because it consists
of the past which could not account for the sudden attack on the
deceased while relaxing in the peaceful atmosphere
of his home. The
suddenness of the attack stood in stark contrast with accused's
peaceful greeting to deceased and members of his
equally the fact that the weapon he was carrying was never noticed
until it had been used on deceased.
the allegation that accused's actions were not subject to his mental
control, I once more find it a farfetched proposition
admitted evidence negates it. His acts showed the operation of a
calculating end cunning mind, both before and after
the deed. He is
said to have said that he killed deceased not accidentally but
intentionally both because deceased's actions had
caused his own wife
to desert him and because when deceased is out of the way he would be
able to live with P.W.1 as his wife.
there is no history of accused's having had similar or even remotely
similar bouts of automatism either before or after
the event. The
onus was on him to prove its existence on a balance of probabilities
because he has asserted it.
determining whether there was mens rea accompanying accused's acts it
is enough that the part of the body stabbed was deceased's
and the weapon is the blood curdling forged peace of metal with a
sharp blade before me, further that accused had this
the deceased which he laid bare to those who had come to the scene
immediately after the stabbing,.
explanations offered by accused cannot justify the taking away of a
human life in the circumstances revealed in the trial.
not refer to any authorities because it is a well known principle of
law that he errs who cites any authorities to prove
Put in another way "perspicua vera non sunt probanda". As
the intention revealed in this case is direct
intent as opposed to
legal intent I accordingly find accused guilty of murder as charged.
course of the trial the accused on his evidence under oath has
established existence of extenuating circumstances.
judgment just read the Court has stated these events narrated by
accused cannot legally afford him a defence. But morally
alleges the deed was actuated by these events.
extenuation is subjective. What was going on in his mind is what is
Court : I
agree with the submissions and do find extenuating circumstances to
exist in this case.
: Sentenced to twelve years' Imprisonment.
: Mr. Sakoane
Defence : Mr. Mda.
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