CRI/T/43/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

MAKALO
MOJAKI

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on 30th September
1982

The
accused before me Makalo Mojaki is indicted upon a charge of
murdering Ramosololi Mosebi(deceased) at or near Kena in the district

of Maseru on or about 28th July 1981. The charge would have been more
accurately framed if the particulars had read that the accused
had
inflicted grievous injuries on the deceased from which he succumbed
on the 11th August 1981.

There is
no evidence of, nor was any suggestion made, that there was a novus
actus intervienes, either physically or medically.
It is common cause
that death was due to a penetrating knife wound in the chest. The
deceased died after two operations were performed
at Scotts hospital
Morija to save his life, one on admission on 28th July, and another
one day before or on the day of his death.

We have
two versions of what happened, one by the deceased's wife 'Malekhula
Mosebi (PW2) supported by two other witnesses 'Mapolo
Manyokola (PW3)
and 'Matsokolo Lekhooa (PW4) and the version supplied by the accused
who called no witnesses though his wife must
have witnessed at least
part of the events at one stage or the other.

'Malekhula
the deceased's wife testifies that she has been having a love affair
with the accused who is a fellow

2

villager.
They had. known each other from childhood but the affair had been
going on for about eight months prior to the events
giving rise to
these proceedings. On the Thursday prior to the Tuesday of the 28th
July 1981 (and not two months before as the
court initially
understood the witness to be saying) the deceased saw her with the
accused, in flagrante dellcto, making love near
or behind some ruins
in the veld outside the village.

The
deceased decided to thrash the matter out with the accused and his
parents who had a joint complex but the accused parents were
not
unfortunately at home. The deceased asked Malekhula his wife to call
the accused's wife who was then in the hut which she did,
but on
coming out, the accused ordered her to go back inside, which she also
did. I think the deceased wanted the accused's wife
to hear what he
had to say.

The
deceased told Malekhula to tell the accused openly that their affair
was over. She did so. She says the accused denied that
he had been
having an affair with her and struck deceased with a stick on the
head. Deceased said he had not come to fight but
if the accused
wanted one he can have it and retaliated by striking accused on the
head. Both had sticks but accused carried a
knife as well. The
accused inflicted three stab wounds end one as we have seen, proves
fatal. Deceased's wife Malekhulu tried to
intervene by standing
between them raising an alarm. The accused stabbed her on the thigh.
The accused has not been charged with
any offence in connection with
this injury but I have no doubt that she is telling me the truth that
he had inflicted that injury
as well.

'Mapolo(PW3)
is Malakhula's "sister", in fact she war, married to
deceased's brother, and lived 70 yards away (pointed).
Malekhula had
confided her secret to Mapolo and what she saw deceased and his wife
going in the direction of accused's house she
surmised it was in
connection with that love affair. She heard Malekhula screaming
"Makalo(accused) is killing my husband".
She ran bo the
scene and saw the stabbing and the deceased explaining "why do
you stab me more since you have finished me?"
If this is true,
as I think it is, that could not have been the first stab. She also
saw

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accused
stab Malekhula on the thigh when she tried to intercede on her
husband's behalf. Accused struck deceased again with a stick.
This
lady speaks of two additional small wounds on deceased, one above the
eye, and one on his palm presumably when he tried the
wrench the
knife from accused.

'Matsokolo
(PV4) says she too was at home some 80 yards away (pointed) and
accused's compound was in front of her and the events
took place
within her sight. She heard cries and a commotion, and even before
she reached the scene, she could see from the distance
accused and
deceased fighting. She saw accused holding both a stick and knife.
She maintains she reached accused's compound before
Mapolo and saw
accused stab deceased, one stab, the one on the kidney region when
deceased was prostrate in front of the stoep.

There are
a few variations in the evidence of the three lady witnesses of
course but they are the sort that one would expect when
persons see
events from different positions distances and angles. Deceased's wife
Malekhula who was perhaps in a better position
than the others.
Though herself involved she confirms there was a struggle between the
men on the stoep before both rolled over
to the forecourt. She adds
that deceased did attempt to take from accused the knife injuring his
palm and actually succeeded in
the sense that the knife dropped from
accused's hand. A further struggle ensued over its possession accused
getting hold of it
first. He again stabbed deceased this time on the
shoulder region.

The
accused's version is completely different. He denies first of all
that he had had an affair with deceased's wife, much less
that he
made love to her on Thursday behind the ruins which was the occasion
Malekhula says the deceased saw them. The accused
says that far from
being the aggressor, the deceased in fact came blanketed. The
deceased's wife said "My husband says he
had seen us at the
ruins on Thursday and he has ordered me to tell you so". When
accused denied the allegation deceased instructed
his wife to call
his (accused's) wife from inside the hut-but when she came out
accused ordered her back. Accused says he only
did so because their
small child was crying. Accused adds that on his wife obeying the
order deceased struck him with his stick
and in

4

the
struggle that followed deceased's blanket fell off and this revealed
that he had a knife in his hand. Accused tried to get hold
of both
weapons and they rolled over from the stoep to the ground below, the
deceased impaled himself on his own knife in the kidney
region. The
accused then pulled the knife with both hands and both stood up. The
deceased, using his head as a weapon, banged him
on the chin causing
him to fall on his buttoks next to a willow tree. The deceased tried
to pin him to the tree. The deceased was
the stronger man. The knife
was with the accused and in self-defence struck deceased twice in the
region of the neck.

The three
witnesses for the Crown struck us as truthful in spite of the few
variations. In particular I am convinced that though
the deceased may
have gone to see the accused and his parents in an angry mood he
carried only his stick-not the knife which was
with the accused. What
is possible is that accused, knowing he had done wrong, may have
suspected that the deceased had come with
more evil intention than he
actually had, and prepared himself with the lethal weapon.

In our
view the accused had the subjective intent to kill. His story that he
was injured on his hand(or indeed elsewhere) during
the fight is
negatived by police man. (PW5) of Morija Police Station to whom the
accused had gone to report the incident and to
surrender his knife.
He had been to see his own chief earlier. The policeman saw no
injuries on the accused. He complained of none,
and most importantly,
he did not say bo anyone that he was acting in self-defence, which if
true, would have been the first thing
said to his wife, chief,
friends and the police.

We are
unable to subscribe to Mr. Mlonzi's submission in the alternative
that the deceased was himself an aggressor and should have
complained
about his wife's infidelity to the authorities and should not have
gone to accused's home. It would have been wiser
for the deceased not
to have gone to accused's home, but that does by itself render the
killing culpable homicide, though we agree
they may have been some
sort of provocation. There was also lack of premeditation born
matters of which may be material considerations
in deciding

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whether
or not extenuating circumstances exist, but that is another matter.

We find
the accused guilty of murder. My assessors agree,

CHIEF
JUSTICE

30th
September, 1982

Extenuating
circumstances having been found on the grounds of absence of
premeditation and the possibility of slight provocation
the accused
was sentenced to 8 years imprisonment.

CHIEF
JUSTICE

30th
September, 1982

For
Crown: Mr, Kabatsi

For
Defence: Mr. Mlonzi