CRI/T/12/90

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

vs

CLEMENT
KORI

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 15th day of October,1990.

The
accused is charged with the crime of murder on the following
allegations:

"In that on or about the 5th day of May, 1987 and at or near
Koro-Koro In the district of Maseru the said accused did unlawfully

and intentionally kill Khauta Patrick Mothibe."

When the
charge was put to him the accused pleaded not guilty. Mr. Nathane who
represents the accused in this case told the court
that the plea of
not guilty, tendered by the accused, was in accordance with his
instructions. The plea of not guilty was accordingly
entered.

It may be
mentioned from the word go that by agreement of both Mr. Nathane and
Mr. Thetsane. counsel for the crown, the post-mortem
examination
report per­formed on the body of the deceased was handed in from
the

2

bar as
Exh. A. The medical Doctor who had conducted the post-mortem
examination was accordingly not called to tes­tify in this
trial.

The court
heard the evidence of P.W.5, D/Tper Ramakeoane, who testified that on
the day in question, 5th May, 1987 he received a
certain report
following which he proceeded to the fields at Koro-Koro. He found the
dead body of the deceased and many people
already gathered there. He
examined the body of the deceased for injuries and found that it had
sustained multiple stab wounds
on the head, chest, back and all over
the body. He counted altogether 21 stab wounds. He conveyed the body
of the deceased in a
police vehicle to the mortuary in Maseru and
assured the court that it sustained no additional injuries whilst it
was being transported
from Koro-Koro to the mortuary.

According
to Exh A, the post-mortem examination report, the body of the
deceased was examined by a Medical Doctor on 6th May, 1987
at Queen
Elizabeth II hospital. The external examination revealed multiple
stab wounds on the back, chest skulp and lips. The Medical
Doctor
confirmed that there was a total of 21 stab wounds.

On
opening the body it was found that there was a laceration of the (L)
ventricle, resulting in haemo-pericardium. On these facts
the Medical
Doctor formed the opinion that death was due to haemopericardium as a
result of a stab on the heart.

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I am
prepared to accept the undisputed medical evidence that the deceased
died as a result of the injuries found on his body. The
important
question, in this regard, is whether or not the accused is the person
who inflicted the injuries on the deceased, and,
therefore brought
about his death.

In his
evidence P.W.1 told the court that on the afternoon of 5th May, 1987
he was working in his field. There was a time when ha
went to releave
nature in a donga. As he was going to the donga P.W.1 noticed the
accused, who had been looking after a horse next
to deceased's field,
walking on the boundary of his (P.W.1's) field. He was being followed
by the deceased. Shortly after ha had
noticed the accused and the
deceased following other on the boundary of his field, P.W.I heard a
voice saying :"What have
I taken?" The voice came from the
direction of the accused and the deceased. He could not, however;
recognise whose voice
it was between the accused and the deceased.

When he
looked in the direction of the accused and the deceased P.W.I noticed
that the two men were engaged in a physical struggle.
The accused who
was also wielding a knife threw the deceased to the ground and
started delivering several blows at him with the
knife. P.W.1.

immediately
rushed to where the accused and the deceased were fighting. On
arrival he found the accused on top of the deceased and
stabbing him
all over the body with the knife. He pleaded with him to leave the
deceased alone as he had already finished

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him. The
accused, however, left the deceased and attacked him (P.W.1) with the
knife. P.W.1 ran away. The accused chased after him
for a short
distance before returning to where the deceased was lying prostrate
on the ground and continued stabbing him.

According
to him, P.W.1 then went to raise an alarm as a result of which many
people came to the scene. As he and the other people
were going to
where the deceased had been assaulted by the accused P.W.1 noticed
the latter disappearing into a nearby poplar tree
plantation. On
arrival to him he found the deceased already dying. The police were
sent for and eventually came to the scene of
crime.

In as far
as it is relevant, the evidence of P.W.1 was corroborated by that of
P.W.2, 'Ma-Isaac Mothibe, who told the court that
she was, on the day
in question, one of the people working in the fields. Following the
alarm raised by P.W.1 she did not, however,
actually go to the spot
where the accused had been assaulting the deceased. The reason for
that was because none of the people
who came to where the deceased
was, appeared to assist him up. She assumed, therefore, that the
accused had left the deceased dead.

The
evidence of P.W.3, Makoae Mothibe, is to the effect that he is the
headman in the village of the accused and the deceased. The
accused
is therefore, his subject and so was the deceased who was, in fact,
his

5

own
brother. In April, 1987 he had confronted the accused and the
deceased over a complaint made by the latter that the former was

damaging his maize in the field. On 5th May, 1987 he came down to
Maseru. On his return home, from Maseru, he received a certain
report
following which he proceeded to the fields where he found the dead
body of the deceased. It had bleeding injuries. Many
people had
already gathered there. He returned to Maseru in­tending to find
a vehicle with which to convey the body of the
deceased to the
mortuary. Before he could reach Maseru, P.W.3, however, found a
vehicle at the village of Ha Phohleli. He returned
to the scene of
crime where he was, however, advised not to remove the dead body
before the police had arrived.

P.W.3
then went to Maseru and reported what had happened to the police who
immediately proceeded to the scene of crime. He confirmed
the
evidence of P.W.5 that the body of the deceased was examined for
injuries before it was transported to the mortuary. P.W.3
did not,
however, accompany the body to the mortuary.

On 6th
May, 1987 he went to the deceased field next to where his dead body
was found. He noticed that fire had been made next to
a willow tree
outside the deceased's field. The tree got burned and the fire was
still smouldering. He also found two maize cobs
next to the spot
where the fire had been made. The maize cobs had not yet been
roasted.

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In his
testimony P.W.4, D/Tper Kharafu, told the court that on 6th May, 1987
he was stationed here in Maseru when the accused surrendered
himself
and handed over a knife. Following an explanation which he made to,
him P.W.4 cautioned and charged the accused with the
murder of the
deceased. He took possession of the accused's knife and it had since
been in the custody of the police.

It is
significant that the accused gave no evidence in this trial.
Considering the evidence adduced by the crown there can be no
doubt
that the accused was seen by P.W.1 and P.W.2 brutally assaulting the
deceased at the very spot where his dead body was later
found. That
being so, the answer to the question I have earlier posted
viz.whether or not the accused is the person who inflicted
the
injuries on the deceased and, therefore, brought about his death must
be in the affirmative.

It has
been argued that as he suspected the accused to be damaging his maize
in the field the deceased was the one who unlawfully
attacked the
accused and the latter acted in self-defence. No evidence was,
however, given in support of the accused's defence
of self-defence.
Even assuming, for the sake of argument, that the deceased was the
first agressor, there is simply overwhelming
evidence that the
accused continued stabbing the deceased who had already fallen to the
ground and was therefore, posing no danger,
at all, to the accused's
life. That

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being so,
it must be accepted that the accused exceeded the bounds of
self-defence which cannot, in my view, avail him.

Although
under cross-examination P.W.1, 2 and 3 assured the court that the
accused was not a mentally deranged person, Mr. Nathane,
counsel for
the defence, informed the court that during his interview with the
accused he got the suspicion that he sufferred from
a mental illness
of some sort. I must say I observed the accused as he sat in the dock
during his trial. He appeared to be normal.
However, neither me nor
the witnesses who testified in support of the crown case are experts
in the field of mental diceases. In
the light of the information
given by the defence counsel coupled with the ruthless manner in
which the accused assaulted the deceased
there was, in my view, a
possibility that the accused might be suffering from a mental
disorder. I considered it safe, therefore,
that the accused should be
referred for observation by a psychiatrist who was called to testify
on behalf of the defence.

D.W.1,
Dr. Mohapeloa, told the court that he was the psychiatrist who
examined the accused. His findings were that the accused sufferred

from what is called arrested mental development or retardation as a
result of trauma (birth injury). Although in his evidence in
chief
the Doctor said he would not regard the accused

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as insane
person, he told the court, under cross-examination, that insanity and
mental retardation were synonimous and the latter
was another form of
insanity. He would say at the time he committed the offence the
accused was mentally retarded but neverthless
able to appreciate what
he was doing.

With due
respect to the learned doctor, I am unable to follow the logic of his
evidence. Assuming the correctness of his evidence,
under
cross-examination, that insanity and mental retardation are
synonimous and the latter is another form of insanity it seems
to me
a non sequitur for the Doctor to say, in evidence in chief, he would
not regard the accused as insane person.

One thing
the Doctor was positive of was that since birth the accused had been
suffering from arrested or incomplete development
of mind. In terms
of the pro visions of S.2 of the Mental Health Law 1964. that is a
mental incapacity or abnormality. From the
Doctor's evidence that
insanity and mental retardation or incomplete development of mind are
synonimous and the latter is a form
of insanity it necessarily
follows that the accused who has been suffering from mental
retardation or incomplete development of
mind (a form of insanity)
from birth was, at the commission of the offence, insane or mentally
incapacitated.

I would
find the accused guilty as charged but insane in accordance with the
provisions of subsection

(3) of S.
172 of the Criminal Procedure and Evidence Act, 1981.

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It is
ordered that the accused shall be kept in custody at the Central
Prison in Maseru pending the signification of Her Majesty's
pleasure.

Both
assessors agree.

B.K.
MOLAI

JUDGE

15th
October, 1990.

For Crown
: Mr. Thetsane

For
Defence : Mr. Nathane.