IN THE
HIGH COURT OF LES0TH0

In the
matter of :

R E X

V

TSELISO
MOJALIBE

Held at
Butha-Buthe

J U D G M
E N T

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 15th day of June 1990.

The
accused is charged with the crime of murder of his father Malibeng
Mojalibe who died on the 7th October 1986 in the district
of Berea.
Before the accused could plead in response to the order made by the
Chief Justice who first officiated in this trial,
following an
application by the then legal representative of the accused Mr.
Moorosi the accused was sent for observation by a
psychiatrist, to
determine whether at the time of the commission of the offence he was
insane or not. This order was duly complied
with and Dr Mohapeloa
came and gave evidence before me. As to the crucial matter whether
the accused was insane at the time of
the commission of the offence,
Dr MOhapeloa's reply was that he was sane.

2

Dr
Mohapeloa is a psychiatrist and he had occasion, according to his
evidence, to meet the accused on several occasions following
the
order that was given by the Chief Justice. The last such occasion was
on the 6th June, 1990. He has had occasion also to meet
the accused's
mother, the accused's brother and the accused's uncle.

Dr
Mohapeloa's evidence was that the accused was perfectly lucid when he
is said to have committed the offence. However he said
he has a
personality disorder of the aggressive type; but that, this is no
sign of insanity or in itself any insanity; He emphasised
that,
personality disorder leads to aggressiveness especially in thin
particular case that we have before us. He explained that
this is a
personality development which is on-going with the passage of years.
It could come about through provocation or intoxicant
intake or
distress. He re-emphasised that the accused is fit to stand trial.

The
interview that the doctor had the benefit of was of the accused's
relatives, namely his mother 'Mathabiso and the accused's
brother
Thabiso. From his interview of these witnesses the doctor felt that
his opinion was reinforced that the accused was sane
at the time of
the alleged offence. He informed the court that from his interview of
the accused's relatives, there emanated no
sign of past mental
illness. He informed the court that the personality disorder at times
manifests itself in with drawal or anti
social behaviour in his
relations with other people.

The court
asked Dr Mohapeloa, how it is possible to determine with certainty
the mental state of a man relating to events which
occurred long time
before he examined him. The doctor's frank reply was that such a
determination is an educated guess.

In my
view the bottom line is that be it educated guess or just guess, it
is in the last or final analysis guess-work

3

The
accused duly pleaded not guilty to the charge, and the evidence of
P.W.2 Dr Huslar was admitted as well as that of P.W.7 Dr
Goorttler.

The first
evidence of P.W.2 related to his treatment of the victim of the
assault on the accused's uncle, whereas the subsequent
report by the
same doctor related to the assaults and an observation of the
assaults detailed on the postmortem report of the deceased
Malibeng
Mojalibe. The crown accepted these admissions and they were read into
the recording machine and made part of the record
in these
proceedings.

Further
evidence was admitted but this time in terms of section 227
subsection l(a) (iii) of the C.P. & E. being the evidence
of
P.W.1 P/W Leraha. It was so admitted because the witness due to
illness could not be available to give evidence in this Court.

P.W.1 is
a Police Woman who investigated the offence in this matter. Having
received a report from her station she proceeded to
the home of the
deceased and met with the local headman. The headman showed her a
dead body of the deceased and she saw external
injuries. In her
examination she saw a wound on the middle of the head - this was an
open one and deep. There was also a bleeding
wound on the middle of
the chin. The right arm was broken and that was all this witness
found. She is supported in this regard
by P.W.3 the accused's mother.

According
to the doctor the cause of death was (sic) due to an assault on the
head, leading to some subdural haematoma.

It
appears that there are at least two eye witnesses in this matter,
namely the accused's mother and her daughter-in-law. The testimony
of
'Mathabiso the accused's mother who is aged about 70 shows that she
received a report from her daughter-in-law P.W.4. Following
the
alarm, she proceeded to the house in which the deceased was and found
that the accused was hitting his father with a knob-kerrie.

4

The
deceased was on the ground. She asked the accused what he was doing,
and the accused said she shouldn't go in there. Thereupon
she
proceeded and raised an alarm among the villagers in the process of
which she saw Johanes and Mokete approach the scene. Meanwhile
the
accused was still in the house where the deceased was.

The
evidence of P.W.4 'Maseetsa Mojalibe who is the daughter-in-law of
P.W.3 shows that her house is about

20 paces
away from that of her parents-in-law. During early dusk of the day in
question she heard her father-in-law, namely the
deceased, shouting
and saying "Maseetsa come I am dying" and she peeped at the
door and saw the accused hitting the deceased
with a knob-kerrie. It
was due to this that she turned right there and went to raise an
alarm. The first person she told was P.W.3,
who as I indicated also
came and satisfied herself that it was the accused who was assaulting
the deceased. Thereafter the generality
of villagers came; and it is
said that the accused was furious in there and letting nobody come
in.

The
person who ultimately came in was the accused's brother, who got hold
of the accused, as he found him bent around the feet area
of the
deceased fiddling for something. When the accused's attention was
drawn to his brother, the accused adopted a very aggressive
attitude
towards the brother with the result that he even at some stage hit
him with that knob-kerrie.

Further
evidence shows that eventually the villagers over-powered the accused
and tied him up. It is common cause that the deceased
died the same
day of the assaults. The other aspect is that at the time that
Thabiso fell the accused to the ground and pinned
him there, the
accused asked him "brother are you killing me?" and in
reply P.W.5 asked "what have I done that you
hit me with the
knob-kerrie?" The accused, it is said, did not reply.

5

There was
also the evidence of P.W.6 who in response to the alarm raised by
P.W.4 came to the scene and when he arrived there he
saw that the
accused was using a knob-kerrie in the house to beat his father. And
P.W.6 asked him "Old fellow what is the
matter?" The
accused hurled abuse at P.W.6 and asked him whether he was already
there.

The
accused, it is said, then rushed at P.W.6 and levelled knob-kerrie
blows at his head twice. The witness showed me old scars
which are
visible: one on the right upper border of the forehead and another on
the left side-immediately behind the left eye.
P.W.6 says as a result
of these blows he fell to the ground and was blinded by blood that
was oozing from the wounds while the
accused doesn't deny having
caused those injuries.

The
accused's mother's evidence shows that the accused began showing some
perculiar and aggressive behaviour about a week before
the incidents
- his brother said as much too.

In
questions which were put on behalf of the accused to the crown
witnesses it appears that there was occasion when a cow belonging
to
the family was sold to either Lebitsa or Tsukulu. To be exact the
question put on behalf of the accused was that; "this
cow was
sold to Tsukulu - ?" But the accused's brother pointed out that
this cow was sold to Tsukulu's father Lebitsa. P.W.4
also said as
much. The accused's brother went further to show that this cow
belonged to the deceased.

No
question was put to contradict the accused's brother in this regard.
It was only when the accused was giving evidence that the
court heard
for the first time that this cow belonged not to the deceased or the
deceased's wife but to the accused himself.

The
accused heard evidence being led by his own brother saying that the
accused had no livestock at all. P.W.5 himself said he also
didn't
have any animals. Indeed if the accused had any animals he had the
opportunity to tell his brother that he was telling a
lie when he
said he didn't

6

have any
animals. But the brother's evidence was let pans in silence even
though it was in contradistinction to what the accused
wished the
court to believe when he was saying for the first time that he had a
cow when he was in the box.

I have no
hesitation in dismissing as a fabrication the evidence led by the
accused that he had this cow which he sold to Tsukulu.

It also
turned out from the evidence by the accused's mother that, by the
time this cow was sold, the accused had already manifested
the
perculiar behaviour that she observer: in him. It would seem
therefore that the sale of this cow, did not unhinge the accused's

mind if at all it was at any stage unhinged. The accused's uncle said
the accused drink? a lot. Well, the accused doesn't deny
drinking but
he is opposed to his uncle saying that he exceeds his uncle in that
type of exercise.

There is
no evidence that on the day of the incident the accused was drunk at
all. Evidence that and which is credible is that he
was wild—very
wild. The accused denies this. He gave evidence, in the course of
which he told the court that he didn't want
to get into the box but
rather wanted to be sentenced from where he is, i.e. from the accused
dock. However the fact that he did
cross over to the witness box,
gave the court some idea about, and served as a kind of a window into
the accused's mind; at least
during the course of his giving
evidence.

The court
and the assessors were able to assess and evaluate the accused's
conduct. The court was in no doubt that not only were
the versions of
P.W.4 and P.W.6 vindicated as to the behaviour of the accused but
also that observed by Dr Mohapelom. Their versions
were vindicated in
the sense that the accused turned to be argumentative, irrelevant and
didn't seem to appreciate the purpose
of giving evidence at all.

At no
stage did the accused show how or whether he knew how,his father
died. He only told me that he knows that the deceased died
at the
hands of Thabiso who had strangled him

7

But
evidence here shows no signs of strangling at all. In

fact the
admitted evidence shows that the deceased died from head wounds.
This, in itself is an indication that the accused has
failed to join
issue with the crown on crucial aspects of the evidence that one
would have expected him to if he was of sound mind.

While
psychiatrist evidence is of importance, at the end of the day it is
evidence like any evidence regarding which the court is
at large to
determine what witness to believe and what witness not to believe.
Much as Dr Mohapeloa told the court that the accused
is not insane,
the court and the assessors saw the accused for themselves and had
great doubt as to the accused's sanity. In fact
if one can refer to
Chief Justice's minute of the 4th December 1989, the accused told the
Chief Justice that he didn't want any
counsel and that it is nothing
for a man to be hanged.

In the
course of his evidence before this Court the accused said words to
the same effect, i.e. that he wan in a hurry, he wanted
the verdict
to be returned and that he was prepared to take the blame for the
offence committed by Thabiso. While in fact this
could be taken as,
in the words of Dr Mohapeloa, a sign of personal disorder one doubts
whether a personal disorder which can go
to the extent where a man is
prepared to take another's blame can be too far from the periphery of
madness itself.

The law
places liability on an offender. This depends on the offender's
intent. The law does not allow execution or punishment of
innocent
people nor does it allow execution of mad people. Insane people under
the provisions of the law are to be protected, and
in the process
means are employed to ensure that the society itself is protected.

It would
be a sad day if because of guess work a man who is insane is made to
suffer the ultimate penalty imposed by the law.

Under
section 172 of the C.P. & E. it is provided that

8

if during
trial of any person charged with any offence, it appears to the
Judicial Officer presiding that such person is insane
or mentally
incapacitated, the court before which the trial is being held shall
inquire into the question of such person's sanity.

If the
court finds the person charged with an offence insane or mentally
incapacitated persuant to subsection (1) it shall record
such verdict
and shall issue an order committing such person to some prison
pending the satis­faction of the King's pleasure.

There has
been this evidence of perculiarity of the accused's conduct before
the commission of the offence itself and that behaviour
was not
precipitated by the sale of the cow, because the cow was sold
subsequent to the signs of perculiarity on the behaviour
of the
accused.

There was
evidence - although it is hearsay evidence but I think it is to the
benefit of the accused that it was reported to P.W.3
- that the
accused was being aggressive to the children and was trying to burn
one of them on the fire.

The sad
aspect of this case is that the deceased is said to have been a blind
man - hardly a danger to anybody. That he was a victim
of this
vicious assault shows the type of mind that the accused laboured
under. Of course the accused denies commission of any
act that led to
the injury or death of his father. All in all the accused's evidence
was just a rambling and on-going series of
irrelevancics.

As a
result my assessors and I have come to the conclusion that provisions
of subsection 3 of section 172 of the C P. E. are to
be invoked in
this case. The court accordingly returns a special verdict in terms
of which the accused is to be committed to some
jail pending the
signification of his Majesty's Pleasure.

15th
June, 1990.

For Crown
: Mr. Mokhobo

For
Defence: Mr. Fosa.