CRI/T/6/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

and

'MAKARABO
PHOOKQ

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 29th day of August,
1990

The
accused is charged with the murder of one 'Mathapelo Ntsasa
(hereinafter called the deceased) on the 1st day of September, 1988,

at or near Thibella in the district of Maseru. She has pleaded not
guilty.

Detective
Lance Sergeant Noluchunku (P.W.1) testified that on the night of the
1st September, 1988 he was in a house at Thibella.
He heard a woman's
voice saying, "Phooko, I told you that I would catch you."
He stood up and looked through the

2

window.
He saw two women and a man. One of those women was wearing a white
jersey. He later identified the two women as the accused
and the
deceased and the man as Phooko.

He was
about twenty paces from them and it was already dark; they were under
the shade of a tree. However, there was a pole of electric
light not
far from where they were. When he first saw them the accused got hold
of the deceased and pulled her towards the corner
of the house and
under the big tree and then hit her with her hand on the side of the
neck. He did not see what the accused was
holding in her hand as she
hit the deceased. From there the accused pulled the deceased for some
distance and the latter fell and
belched. P.W.1 says that all the
time the deceased was not warding off the blows. After she had fallen
down he (P.W.1) came out
and found that the deceased had been fatally
wounded. He did not wait until a crime was committed because he was
not aware that
they were fighting. The man who was with them did not
intervene in any way.

'Matsepiso
Mohlouoa (P.W.2) was working at a bottle-store at Thibella in
September, 1988. At about 8.00 p.m. on the 1st September,
1988 the
deceased and Phooko came to her place and bought a case of beers in
bottles. A short while after they had left Papi Tlali
(P.W.3) and
Aupa Phalatsi (P.W.5) arrived and bought some tobacco. Just as they
were about to leave they locked through the window
and reported to
her that the people who had just bought beer from her were fighting
outside. She looked through the window and
noticed that the accused
was striking at the deceased

3

with her
hand and Phooko was trying to separate them by standing between them.
When they came out of the house the accused was still
striking the
deceased who was trying to use Phooko as a human shield by hiding
herself behind him. Phooko said: "You have
got us into trouble
by stabbing a person with a knife," The accused replied and
said: "I have long been rebuking you
for this woman." P.W.2
says that after those words were uttered she left the place and
raised an alarm. She admitted that
she did not see the start of the
fight.

The
evidence of P.W.3 and P.W.5 is that after buying tobacco from P.W.2
they heard the cracking of bottles outside. They looked
through the
window with P.W.2. They saw a scuffle by three people. A woman was
striking at the deceased in a stabbing manner but
they did not count
how many times she struck her. The man who was with them was trying
to get hold of the woman who was striking
the deceased while the
latter was trying to hide herself behind the man. The deceased was
also warding off the blows with her arms
and protecting her head with
them. She was also appealing to the accused not to stab her with a
knife. When they got out of the
store the fight was almost over
because the man said: "You have got us into trouble by stabbing
a person."

The
version of the accused is entirely different from that of the Crown
witnesses. She deposed that on the night in question she
left her
home at Sea-Point and went to Thibella to fetch her husband Phooko
who died in September last year. When she came to a
place called Big
House she heard the voice of her husband saying

4

"You know that earlier my wife found us under compromising
circumstances and you want that to happen again." One day
she
had gone to deceased's home and found her husband having sexual
intercourse with the deceased. She got very upset but did nothing
to
them and quietly returned to her house. She talked to her husband
when he came home that evening.

After
uttering those words Phooko tried to hit the deceased but at that
time she was very close to them. She grabbed her husband
by the hand
and dragged him. The case of beers he was carrying with the deceased
fell down. The deceased asked who she (accused)
was. She said she was
'Makarabo in the name of Phooko. When asked what she meant by that,
she said she meant that she was Phooko's
wife. The deceased said that
she had long been looking for her and had at last found her. She
(deceased) took a bottle full of
beer and threw it at her and hit her
on the back of her head. She fell down on her knees and hands. When
she tried to rise 'she
saw a knife coming towards her' as the
deceased directed a blow at her. She warded off the blow with her
left arm and she was stabbed
above the left wrist (The witness showed
the Court a scar above the left wrist). As a result of that blow the
knife fell down.
She (accused) took it and rose. The deceased held
her at the neck and hit her on the face with a fist. She (accused)
stabbed her
with the knife five times. After that the deceased
managed to wrest the knife from her and it cut her (accused) on the
rich: thumb.
She says that while she was stabbing her, the deceased
was still fighting and hitting her with a bottle on the shoulders.
She left
after the deceased had taken her knife.

5

It is
common cause that all the Crown witnesses did not see how the fight
started. However, when they first saw the fight the accused
was the
aggressor and the deceased was fleeing from her or warding off the
blows with her arms and shielding behind Phooko but
without much
success because the accused was able to come close to her and to stab
her several times. It is trite law that in cases
of self-defence the
accused may be found guilty of culpable homicide if he exceeds the
bounds of self-defence in a moderate way;
however, if the excess is
immoderate, he may be found guilty of murder (R.v. Molefe, 1940 A.D.
202).

In the
present case the evidence of the Crown witnesses is very clear that
even if the deceased was the initial aggressor, when
they first saw
the fight it was the accused who was the aggressor. The knife was
already in her possession and she was actually
chasing the deceased
and stabbing her. believed the evidence of all the Crown witnesses
except Detective Lance Sergeant Noluchunku.
I had the feeling that he
did not see clearly what was happening. It is not correct that the
deceased was folding her hands like
a child when she was being
stabbed. It is also not correct that Phooko was just standing besides
the two women and not trying to
intervene in any way. The evidence of
P.W.2, P.W.3 and P.W.5, which I have believed, is that the deceased
was warding off the blows
with her arms/hands and trying to cover her
head/face. Phooko was trying to get hold of the accused and to
separate them.

6

The story
of the accused is not only improbable but it is so improbable that it
cannot reasonably possibly be true. The Crown has
proved that it is
false beyond any reasonable doubt. The accused says that when the
deceased threatened to assault her and said
she had found her, she
did not lock back to see what she was doing until she was hit on the
back of her head. She did not even
see whether the deceased threw the
bottle at her or was still holding it in her hand when she struck
her. I do not think that she
could be so brave as not to look back
when the threats were made.

She
contradicts herself by first saying that the deceased was holding her
by her clothes at the neck and hitting her on the face
with a fist.
She later changes and says the deceased was hitting her on the
shoulders with a bottle. It seems to me that the accused
is
contradicting herself because she is not telling the truth that the
deceased ever held her in the manner described. It is most
unlikely
that the deceased could be in a position to cling to the accused even
after she had been mortally wounded. One of such
injuries was a
complete cut through the trachea. To suggest that the deceased was
fighting until the last minutes when she allegedly
wrenched the knife
from the accused is absurd and untenable. After sustaining the
injuries described in the evidence of Dr. Karamazi,
which was
admitted by the defence, the deceased could not be in a position to
offer any resistance. The Crown witnesses prove that
she was
helpless.

7

The story
of the accused that she once found her husband and the deceased in
the latter's house having sexual intercourse is untrue.
It is most
improbable that a married

under
woman who finds her husband such compromising circumstances would
just look at them and leave the house without saying a word
and allow
them to finish what they were doing in peace.

I am
convinced that the accused told the Court a pack of lies. She was not
prepared to explain to the Court the circumstances under
which she
sustained the injury on her left wrist. I come to the conclusion that
even if the accused can be said to have been defending
herself she
exceeded the bounds of self-defence in an immoderate way and is
therefore guilty of murder. She had the requisite intent
for murder
in the form of dolus eventualis. The accused is found guilty of
murder.

My
assessor agrees.

J.L.
KHEOLA

JUDGE

29th
August, 1990.

8

EXTENUATING
CIRCUMSTANCES

The Court
took into account that there was no premeditation; the intention was
that commonly known as dolus eventualis; and that
there was an
element of "provoca­tion" when the accused found the
deceased with her husband at night.

SENTENCE:

In passing sentence we took into consideration that the accused is a
first offender; that she has already been in gaol for two
years. On
the other hand we took into account the fact that she used a knife
which is a very lethal weapon used in almost ninety
per cent of the
murder cases that are tried in this Court. The injuries she inflicted
were very grievous and one such injury was
that deceased's trachea
was cut through. We accordingly sentence the accused to seven (7)
years' imprisonment.

My
assessor agrees.

J.L.
KHEOLA

JUDGE

29th
August, 1990.

For Crown
- Mr. Qhomane

For
Defence - Mr. Putsoane.