CRI/T/51/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

MAPESHOANE
HLOAI

HELD AT
QUTHING

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of December,
1990

The
accused stands charged with the murder of his wife 'Mathuso Hloai who
died on the 12th August 1989 at a place called Mantsonyane
in the
Mohale's Hoek district. The accused pleaded not guilty to the charge.
The evidence adduced on behalf of the Crown spanning
P.W.I Lira
Morajane to P.W.5 No. 365 Trooper Moletsane, was entirely admitted on
behalf of the accused, and was accepted by the
Crown and read and
recorded.

It
appears that on the fateful day there had been drinking at a place
somewhere in the village. The accused was with his wife at
this
place. The accused is shown to have left a little earlier than his
wife, and some five to seven minutes later the wife also
left.

However,
Lira Morajane said that the accused immediately came hack to make a
report to him. The two left for the scene where they
found the
accused's wife

2

lying on
her hack, some two paces away from P.W.1's fence. P.W.I asked the
accused what had happened to the wife. The accused told
him that he
had hit her with a stone. Thereupon P.W.I raised an alarm. Blood
foams were seen on the nostrils and mouth of the deceased.
The body
was carried on a ladder and taken to the Mohale's Hoek mortuary.

The
doctor's evidence is very inconclusive as to what the cause of death
was. He is doubtful whether the injury was sustained on
the head. In
the result, all that we can rely on is the accused's admitted
evidence that the injury was caused on the head with
a stone. Medical
evidence in the Preparatory Examination depositions shows that the
doctor formed the opinion that the deceased
died from natural causes.
I may point out here that the Court is not obliged to follow, or
hound by medical evidence provided that
there is other evidence
alliunde showing what the cause of death might have been.

However,
except the evidence that was admitted as to what possibly could have
been the cause of death, there is not scientific cause
of death
established. It being in the nature of preparatory examination
depositions the Court is deprived at this moment of the
oral evidence
of the doctor who might have been asked in this Court as to what he
attributed the flow and foaming of blood from
nostrils and mouth to.
However the Court has had the benefit of addresses at the end of the
admitted evidence.

Be it
noted also, I think it is important, that immediately after the
conclusion of the Crown case the defence closed its case without

leading the evidence of the accused. In its concluding addresses, the
Crown conceded that the medical evidence is scanty as to
the cause of
death.

The Crown
accordingly, and I think rightly too, submitted that at worst the
charge that can stand against the accused is that of
Assault with
intent to do Grievous Bodily Harm as shown in the evidence.

3

Accordingly
you are found guilty of Common Assault instead of assault with intent
to do grievous bodily harm. This conclusion is
reached in view of the
fact that the doctor says your wife died from natural causes.
Although the assault that you admitted was
effected on the head the
doctor's opinion is that it played no part in promoting the death of
the deceased.

You are
therefore sentenced to two years' imprisonment the whole of which is
suspended for three years on condition that you he
not convicted of
an offence committed during the period of suspension of which
violence is an element.

JUDGE

10th
December, 1990

For Crown
: Mr. Mokhobo

For
Defence: Mr. Fosa