CRI/T/50/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

1. RAMARE
MASILO

2.
TSABELLO MASILO

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 10th day of
March, 1982

The two
accused persons Ramare Masilo(Al) and Tsabello Masilo(A2) are
indicted before me on a charge of murdering, Michael Thupa
(the
deceased) on or about the 4th day of March 1981 at or near Kamoho in
the district of Butha-Buthe. A2 is Al's nephew.

It is
common cause that the deceased died probably instantly from a single
stab wound in the chest which penetrated into the trachea
defined as
the "principal air passage of body from larynx to the bronchial
tubes".

It is
also common cause that Al's wife Matsipa had on at least one occasion
previously to the time that gave rise to these proceedings,
removed
from her matrimonial home and had gone to Kamoho village. It is
reputed that Matsipa was the "niece" of the deceased
who
lived at Kamoho.I say "reputed" because there is no direct
evidence of such a relationship. Al did not apparently
know him. My
assessors think that he was a far removed maternal "uncle"
and they seem to think that it is possible that
he had not been
involved in the marriage arrangements between A1 and his wife
Matsipa. Be that as it may be deceased put up Matsipa
with his
widowed daughter in law Matsosane Thupa (PW5) who had rented a room
in a block consisting of two rooms some distance fr6m
the house in
which he lived. She stayed there for about a week previously. Then A1
came and fetched her. It

2

is
certain that Matsipa left her matrimonial home with her child for a
second time because of some disagreement with A1. We have
only A1's
word that he had not given Matsipa offence that warranted her leaving
home to go and seek refuge in Kamoho village.

The
evidence is to the effect that on that 4th March 1981 Matsipa arrived
at about 5.30 p.m. with her child and put up at Matsosane
(PW5).
Shortly afterwards Al arrived with A2. We have more than one version
of what happened after their arrival but there is no
doubt that Al
and A2's object was to take away, by force if necessary, his wife
Matsipa and his child back home and that Matsipa,
at any rate
initially resisted,saying she does not want to go back to a
"Tortoise" - My assessors have not heard of the
expression
but they seem to think, and I agree, that it is a deragatory term.
Present at the time were three women Machaka (PW1)
Masefako (PW2) and
Matsosane (PW5) the deceased daughter in law with whom Al's wife put
up.

Whilst Al
was chasing and assaulting his wife and terrorising the other women
above mentioned, Machaka's husband whose name was
Sam(he did not give
evidence) arrived and tried to intervene. He too was assaulted. The
upshot was that the women and Machaka's
husband Sam fled the
homestead in different directions.

Masefako
(PW2) testifies that she ran to the home of Mamosela where the
deceased stayed which was in an adjacent village situate
half a
kilometer away (pointed) to inform1 him that his niece Matsipa was
being assaulted by her husband who had come to take her
away by
force. She found the deceased asleep. He was a man of sixty. He was
woken up and urged by Mamosela to go and intervene.
Mamosela was said
to be an elderly woman with bad eyesight. The deceased got up, and
took hold of small stick, and started walking
towards Matsosane's
house. He had a choice of several paths. He had to traverse(before
reaching his daughter in law's house at
Kamoho) open country.

If I may
digress for a moment here, Machaka, who had fled her home, stood on a
hillock, but could see the proceedings below. A1
finally got hold of
his wife Matsipa. The last she saw of them was Al driving his wife
and A2 carrying the child towards the fields
in the direction of the
house where the deceased stayed.

To
resume: Masefako's followed the deceased towards her house. She says
she was following the same path the deceased

3

took and
Matsoane, who came to raise the alarm as well, followed her with
Mamoaela the lady with poor eyesight. It was getting dusk
by then.
Masefako saw A1 driving his wife and A2 carrying the child and they
met the deceased face to face. Masefako testifies
that she heard
Matsipa appealing to the deceased saying: "Father Michael please
help me I am being assaulted". A1 shouted
to his wife "So
you you already know the names of those ruffians in this village.1 Is
he (meaning the deceased) the person
with whom you are staying?"
to which question Matsipa replied that he was. The last thing
Masefako heard was A1 telling A2:
"Stab him with a knife"
and the deceased protesting "Why what have I done?"

Masefako
ran to her home to raise the alarm and on her return with village
help the deceased's body was at about the same spot where
the
encounter between A1 and A2 (on the one hand) and the deceased (on
the other) had taken place.

A1
testifies that when he found his wife absent from the matrimonial
home on that day he proceeded with A2 to Kamoho to bring her
back
home. He knew she would be there. He admits assaulting her at
Matsosane's house. She ran in the direction of the fields and
he gave
chase. A2 followed behind some distance away carrying the child. He
caught up with her and thrashed her again. As he was
doing so he
suddenly felt someone striking him on the head from behind. He let go
his wife and looked back and saw a male adult
(the deceased) who was
a stranger to him. He turned to face the deceased who pushed him and
was aiming to strike again. A1 says
he took out his knife from his
pocket, unclasped it with his teeth, and stabbed the deceased on the
chest. The deceased fell. He
caught his wife and brought her back to
where the deceased had fallen and said to her "Do you realise I
inflicted injuries
on this man?" It was only then that she
(Matsipa) told him that that man was the person with whom she was
staying.

There is
little doubt that A1 was labouring under the belief that his wife was
having an affair with someone in Kamoho. He says
he had no particular
person in mind. According to Machaka A1 said to A2 when her husband
Sam arrived "Stab this man, he is
the one having an affair with
my wife". I must add that there is not an iota of evidence to
support Al's suspicions against
Sam nor is there evidence that the
deceased, who was considerably older than Matsipa, had an affair with
her either.

4

A1 and A2
reported to Butha-Buthe charge office the same evening about 8,30
p.m. A1 said he stabbed a person whom he did not know,
but with whom
his wife had been staying, and handed the officer (L/Sgt Motlalane
PW3) a broken blood stained knife (Exhibit 1)
and the broken stick
(Exhibit 2). This is a very light stick. A2 explained to the officer
that the stick was carried by the man
(deceased) with whom A1's wife
was staying. Al from the witness box says that the stick was his and
was broken when he assaulted
his wife in or around the house when
chasing her. Machaka says the deceased, when he went t. intervene,
carried a light stick "similar"
to Exhibit 2 but was not
sure if it was in fact Exhibit 2.

There is
no evidence that A2 (though he had made common cause with A1 to
retrieve his wife by force), made no common cause with
him in killing
the deceased, A2 must therefore be acquitted. A1 put up a feeble case
of self-defence and this must be rejected
as utterly fanciful. He
never complained to the police about injuries and they noticed none.
The officer who visited the scene
and saw the terrain where the body
was lying noticed no evidence of a struggle in the vicinity.

We are
not sure, however, in view of the circumstances, that A1 had the
subjective intent to kill. The encounter with the deceased
was a
chance one, he was in rage against his wife, and we are not satisfied
that he formed a specific intent to kill.

We find A1 guilty of culpable homicide.

We find A2 not guilty and he is discharged.

My assessors agree.

SENTENCE:
7 years imprisonment of which 3 are suspended for 3 years on
condition that accused be not convicted of an offence involving

violence to the person in which he receives a sentence of more than
six months imprisonment.

CHIEF
JUSTICE

10th
March, 1982

For Crown
: Mr. Khauoe

For
Defence: Adv.Monapathi