CRI/T/60/89

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

TEBOHO
MABELENG

Held at
Qacha's Nek

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 8th day of May,1990.

In these
proceedings the accused pleaded not guilty to the murder of the old
man Mabeleng Mabeleng, who died from a knife wound
inflicted by the
accused on 25th day of March, 1989 at Likhohloaneng. True to his
defence the accused admitted all the depositions
which were led in
the court below, at the end of which he gave his own evidence. In
that evidence he indicated that he didn't know
that he had caused the
old man an injury, a fatal injury, nor had he been aware that he was
inflicting any injury should he have
been aware that doing so was
wrong. All these he said, occurred probably because of the advanced
stage of intoxication that he
was under.

2

The law
that governs this type of situation is to be found in Proclamation 60
of 1938. "The Criminal liability of Intoxicated
Persons."
The law provides that

"save as provided in this section, viz, under section 2,
intoxication shall not constitute a defence to any criminal charge,

except as provided in this law."

And
sub-section (2) says,

"Intoxication shall be a defence to any Criminal charge if by
reason thereof, the person charged at the time of the act complained

of did not know that such act was wrong, or did not know what he was
doing; and under sub-section (a), the state of intoxication
was
caused without his consent by the malicious person, or the person
charged under (b) was by reason of intoxication insane, temporarily

or otherwise at the time of the wrongful act."

Sub-section
(3) provides that

"where the defence under the preceding sub-section is
established, then in a case falling under para­graph (a) thereof,

the accused person shall be discharged; and in a case falling under
paragraph (b) the provisions of sub-section (2) of section
169 of the
Criminal Procedure and Evidence Proclamation shall apply."

Now,
section 169 of the proclamation has been changed

into
section 172 of the Criminal Procedure and Evidence Act

of 1981.
Sub-section (2) of 172 says,

"If the court finds the person charged with an offence insane,
the court shall record such verdict and shall issue an order

committing such person to some Prison pending the sati­sfaction
of the King's pleasure, or the court may make any order which
it
deems fit."

It stands
to reason, therefore, that from my evaluation of proceedings before
me, the accused does not fall under sub-section (a)
of sub-section
(2) of section 2, but rather falls under sub-section (b) of
sub-section (2) of section 2, which provides that

"The person charged - if the person charged was by reason of
intoxication insane, temporarily or other­wise, he falls
to be
treated under section 172 of

3

the C.P. & E. of 1981."

The
accused doesn't deny that he may have caused the act Witnesses say
that he actually caused it, and relying on that evidence
it seems the
crown has proved that the accused is responsible or is criminally
liable for the death of the deceased.

I have
taken into consideration the age of the accused. While the empowering
section does provide that the accused should or could
be kept in
Prison pending the signification of the King's pleasure taking into
account the age of the accused and taking into account
the
circumstances under which he was led into the typo of voluntary
insanity that he brought upon himself, viz. voluntarily taking
liquor
which resulted in some form of madness, I feel therefore that it
would be proper to impose some other alternative form of
punishment
allowed by the same sub-section (2) which says that the court may
make any order which it deems fit. I have taken into
account the fact
that the accused has admitted every piece of evidence levelled
against him. I have seen the way in which he stood
the
cross-examination and that he manifested to me honesty in his answers
to the questions put. He didn't seem evasive.

Taking
all these into account, my assessors and I feel that you have got to
be given a chance to behave well in society; and I hope
you have
learned your lesson and that you are going to desist from
experimenting with liquor.

The
verdict I have lighted on is that you were insane at the time that
you committed this offence on account of the liquor you had

voluntarily consumed, and the sentence my assessors and I have agreed
upon is that you go to Gaol for 4 years, half of which is
suspended
for 3 years on condition that you shall not be convicted of a crime
invol­ving violence to the person of another
committed during the
period of the suspension of the sentence.

JUDGE.

8th May,
1990.

For Crown
: Mr Lenono

For
Defence : Mr Fosa.