CRI/T/27/82

IN THE
HIGH COURT OF LESOTHO

In the
Matter of

R E X

v

ALPHONSE
LIKOTSI

JUDGMENT

Delivered
by the Hon . Mr. Justice B.K. Molai on the 22nd day of February,
1983.

The
accused appeared before me charged with murder it being alleged

"In that upon or about the 1st June, 1982 and at or near
Kolonyama in the district of Leribe, the said accused, acting
unlawfully
and with intent to kill, did assault 'Mamokotjo Likotsi
and inflict knife wounds upon her from which the said 'Mamokotjo
Likotsi
died at Kolonyama on the 1 st June.1982

When the
charge was put to him, the accused pleaded :

"I am guilty but with"reasons."

Mr.
Matsau who represented the accused in this matter informed the Court
that the plea as tendered by the accused was in accordance
with his
instructions and that the reasons referred to by the accused in his
plea would be dis-closed in the course of his address
in mitigation.
I directed that those reasons (if any) should be disclosed as they
might have a bearing on what accused's correct
plea was. Wherefor,
the accused explained that the reasons he had in mind were that he
had long been warning his late wife, 'Mamokotjo
Likotsi,to stop her
love affair with a certain man called Martins. In 1980 his wife
(deceased) gave away his blankets to Martins.
He actually saw the
blankets being hanged on a fence, for drying, at the home of Martins
. When he (accused) questioned her about
those blankets, the deceased
told him that she had given the blankets to Martinas

2

In my view,the reasons disclosed by the accused did not affect, in
any way, his plea of guilty and it was accordingly entered as

pleaded.

Mr.Kabatsi, who appearea on behalf of the Crown, accepted the plea.
As has already been pointed out, the accused was facing a charge
of
murder. Section 240(1) (a) of the Criminal Procedure and Evidence
Act,1981 provides:

1. If a
   person charged with any offence before any court pleads guilty to
   that offence or any offence of which hemight be found quilty
   on that
   charge, and the prosecutor accepts that plea, the court may.

   
   

1. if
   it is the High Court, and the person has pleaded guilty to any
   offence other than murder bring in a verdict without hearing
   any
   evidence (my underlining)
   

   
   

The words
have underscored in the above quoted section indicate, in my view,
that an accused person is entitled to plead guilty
to any offence
including murder, and if the prosecution accepts the plea, the High
Court has a discretion , except in cases of
murder, to return a
verdict. without hearing any. evidence. That is where the accused is
,charged with murder as in the present
case, there must be evidence
establishing to the satisfaction of the High Court whether or not an
offence has in fact been committed
before the court can return a
verdict.

In order
to satisfy this statutory requirement and relying on the provisions
of sec. 273 of the Criminal' Procedure and Evidence
Act, supra, Mr.
Kabatsi informed. the Court that, with the exception of the following
small portions in the depositions of P.W.2
and P.W.9 which should be
expunged from the record,the defence was admitting the entire
preparatory examination proceedings :

"P.V.2 - page 4 - lines 14- 19 –

Accused never informed me that deceased was in love with small boys
at any stage (not even in the 31st May, 1982 gathering) nor
with
other men. Accused did not even inform me when I asked him what he
was stabbing his wife for. I khow this knife before Court.
It was
already wrapped with green tape."

3

".9-page
9-line 32-35-

"Accused has never indicated or reported his wife's
unfaithfulness to me. Neither did he ever asked me to speak to them.
According to my knowledge accused is a butcherman there."

Page 10,
lines 14 - 17 –

"I never knew anything concerning Martins and accused's wife.
Martins and accused were friendly before. I do not know of anything

concerning accused and his daughter in law.

In view
of that admission, Mr. Kabatsi continued, counsel for the parties
were therefore applying that the proceedings of the preparatory

examination be accepted as evidence. Mr. Matsau confirmed.

I granted
the application and with the exception of the portions that had been
expunged from the depositions of P.W.2 and P.W.9,
the proceedings of
preparatory examination were accordingly accepted and admitted in
evidence before this Court.

The
salient question was whether or not formal admissions in termS of
sec. 273 of the Criminal Procedure and Evidence Act, supra,
formed
evidence within the meaning.

or for
purposes of sec. 240(1)(a) of the Act. A similar question was dealt
with at length by Mofokeng J. in Rex v. Sepanya CRI/T/17/77
at page 2
et seq. (unreported) and, in my opinion rightly so, the learned judge
replied it in the affirmative. Ho was not overuled
by Milne J.A. who
wrote the majority judgment in Senpanya v. Rex C. of A (CRT) Mo."/
of 1977 (unreported). Therefore, I am
left with no doubt in my mind
that the proceedings of preparatory examination admitted in terms of
sec. 273 of the Criminal Procedure
and Evidence Act. 1981 in the
present case form evidence within the meaning, or for purposes, of
sec. 240( )(a).

Briefly,
the evidence disclosed by the proceedings of the preparatory
examination is that on 15th June. 1981 . following a certain
report,
P.W.7, Trooper Mothepu, proceeded to accused's house at Kolonyama
where he found that accused's wife (deceased )had sustained
bruises
on the face and her eyes were completely closed. P.W.7 questioned the
accused and the deceased about the injuries on the
latter. Accused
simply refused to answer. The deceased gave an explanation

4

(but this
was not disclosed by P.W.7 in his evidence) I shall return to the
evidene of this witness later in this judgment

P.W.8.
W/O Toloane also testified that August. 1981, he received a certain
report following which he called the accused and the
deceased
together in van attempt to reconcile them. Deceased complained that
accused was having an affair with his daughter in
law. In turn
accused complained that the deceased was having a love affair with
one Martins.P.W.8. reprimanded both the accused
and the deceased for
their behaviour and asked them to go and keep peace. They bothasked
forgiveness from each other before parting
with him.

During
September,1981,P.W.8 had the occasion to call on accused and deceased
at their home and got the impression that they were
then happily
staying together.

However,
P.W.2, Lebakeng Lebata, an elder brother of accused, testified that
on 31 st May,1982, the accused came to him in Maseru
where he is
working at the Ministry of Interior and informed him that he was at
loggerheads with the deceased. Accused urged him
to go to Kolonyama
and reconcile him and the deceased.P.W.2 accordingly went to
Kolonyama and chaired the family gathering at which
the accused, the
deceased,their two sons who were at home, on short leave, from their
place of work in the mines were present.

Deceased
complained that she and the 'accused were no longer living happily
together at home. The meeting ended on a peaceful note
with both the
accused and the

deceased
asking for forgiveness from each other. P.W.2 slept in one of
accused's 4 huts for the night.

On the
following morning after accused's two sons had returned to their
places of work, P.W.2 was in one of the huts when he heard
screams
from another of accused's huts in which the deceased was. P.W.4 and
P.W.6, close neighbours of accused, also testified
that they had
heard the screams as a result of which they came to accused's house.

P.W.5,
Malikotsi Likotsi, a 9 years old daughter of accused, testified on
oath and told the Court that on the morning in question,
the deceased
was standing next to a table when she saw accused suddenly stabbing
her on the neck with the knife -Exh.1. Deceased
was not in any way
fighting the accused when the latter suddenly stabbed her.

5

Wheh she
was thus stabbed, the deceased fell down on the side of the table.
Accused continued stabbing the deceased even after she
had fallen
down. He stabbed her on the abdomen; hands and all over the body. As
he stabbed the deceased accused was saying:

"I have told you."

Coming
back to his evidence,P.W.2 said when he heard the screams, he went to
the hut in which the deceased was. As the door was
still open, he
could see the deceased

crawling
on the floor towards the door. When she noticed him. the deceased
called out for help and said :

"my brother, my brother!"

At that
stage P.W.2 also saw accused stabbing the deceased several times with
the knife- Exh.1. He was stabbing her on the back.
Deceased became
hopelessly tired. P.W.2 asked the accused what the matter was but
the latter ran passed him (still holding Exh.
1 in his hand) into one
of the huts from where he got a bicycle and rode away. When accused
thus rode away on a bicycle,P.W.4 and
P.W.6 who had just come to the
scene in response to the screams,assisted P.W.2 to raise the deceased
to a sitting position in an
attempt to stop her bleeding. They all
noticed that deceased had

sustained
multiple stab wounds. P.W.4 and P.W.6 told the Court that they did
not know anything about deceased's love affair with
Martins or any
other man for that matter.

A report
was sent to the Chief of the area,P.W.9, who arrived at the time the
deceased was passing away. P.W.9 sent for the police
who came and
carried the deceased's body to the mortuary at Hlotse Government
Hospital. P.W 2 was one of the people who accompanied
the body to
the mortuary. He testified that the body sustained no additional
injuries while it was being conveyed to the mortuary.
He later
identified it as that of the deceased before P.W.3, the medical
officer who performed the Post Mortem Examination.

In his
evidence P.W.3, Dr. Ewals, testified that, during the Post Mortem
Examination on the body of the . deceased, he observed
altogether 13
external wounds mostly on lower abdomen, upper legs and on the back.
When he made internal examination on the body,P.W.3
found" that
there was a hole in the left lung and behind the right kidney.

6

There was
a lot of blood around the kidney region. P.W.3 found that the
deceased had lost a lot of blood and formed the opinion
that death
was due to haemorhage shock resulting from the injuries that had been
inflicted on her. In the opinion of P.W.3 the
knife, Exh.1, could
have been used, with considerable degree of force, inflict the
injuries that resulted in the death of the deceased.

Now,coming
back to his evidence; P.W.7 told the Court that, following a certain
report, on 1st June,1982 he proceeded to accused's
home at Kolonyama
where P.W.2 showed him the deceased's body which was lying just
outside accused's house. On examining the body
he found that it had
sustained multiple bleeding injuries. He carried the body in a police
vehicle to Hlotse mortuary. He confirmed
the evidence of P.W.2.that
no additional injuries were sustained by the body while it was being
conveyed from Kolonyama to the
mortuary.

P.W.1 ,Lt
II Mofalali, testified that on the early afternoon (1.00 p.m.) of 1st
June, 1982, the accused came to his office at the
airport police
station in Maseru and said he was surrendering himself as he had
fought and stabbed his wife with' Exh.1 which he
handed in. P.W.1

examined
Exh.1 and found that it had some blood stains . According to the
evidence of P.W.1,accused appeared to be confused and
disturbed.
Accused's explanation for fighting his wife was the latter's
unfaithfulness to him. P.W.1 kept accused in custody. On
3rd June,
1982, P.W.1 transferred accused to Leribe police station where on 7th
June, 1982, P.W.8 cautioned and charged him of
the murder of the
deceased.

It common
cause that the deceased was assaulted and fatally injured by the
accused on 1 st June, 1982. Considering the evidence
as a whole, I
can find no justification for the accused's brutal assault on the
deceased. I take the view that the assault was
unlawful. The only
question is whether or not in his unlawful "assault on the
deceased, the accused had the requisite subjective
intention to kill.
There is undisputed evidence of eye witnesses, P.W.5 and P.W.2 that
the accused was seen stabbing the deceased
several times with a knife
on the abdomen, the back and all over the body even after the
deceased had helplessly fallen down and
was crawling on the floor.
The evidence of P.W.3 that, in the course of his Post Mortem
Examination on the body of the

7

deceased,he
found not less than 13 stab wounds, mainly on the abdomen and the
back,is consistent with the brutal manner in which
the accused
assaulted the deceased. I can find no good reason why the evidence of
P.W.5 corroborated by that of P.W.2 should be
doubted on this point
and I am prepared to accept it as the truth. That being so it must
be accepted that in stabbing the deceased
in the manner described by
the witnesses, the accused foresaw the possibility of his act
resulting in the death of the deceased,
yet he persisted in it
regardless of whether death ensured or not. That constitute legal
intention on the part of the accused.
It follows therefore, that in
my view, the question whether or not in his unlawful assault on the
deceased, the accused had the
requisite subjective intention to kill
must be replied in the affirmative.

In the
premises, I am satisfied that the offence against which the accused
is charged has been proved beyond a reasonable do but
by evidence
placed before this Court and the accused is accordingly found, guilty
of murder as charged.

My
assessors agree.

B.K.
MOLAI

JUDGE

22nd
February, 1983

For the
Crown : Mr. Kabatsi,

For the
Defence : Mr. Matsau.

CRI/T/27/82

EXTENUATING
CIRCUMSTANCES

Having
convicted the accused of murder, it now remains for the Court to
determine whether or not there are any factors, connected
with the
commission of the crime, which tend to reduce his moral
blameworthiness. The accused must prove the existence of these

factors on a balance of probabilities and the test to be applied is a
subjective one.

The
accused gave evidence and testified that his late wife (deceased) had
a love affair with one man by the name of Martins. The
deceased was
in the habit of making

presents
with his (accused's) property to this man, Martins. On several
occasions the accused, in vain, warned the deceased and
Martins to
stop their relationship. Life between the accused and the deceased
became gradually very unpleasant at home. This culminated
in Martins
assaulting the accused and the deceased refusing him conjugal rights.

On the
day preceeding the day on which his late wife met her unfortunate
death, accused's elder brother had presided over a family
council at
which an attempt was made to reconcile the deceased and the accused.
On that fatal morning of 1st June,1982, and as
a gesture
demonstrating that peace in the family had been restored, the accused
entered the hut in which the deceased, P.W.5 and
another child were
and tried. to kiss the deceased.

However,
the deceased nagged at him saying she did not want his kiss and the
only man she loved was Martins. That was the last straw.
Accused
became confused and in his confusion reached a knife, Exh.1 , which
had been lying on the shelves. He found himself stabbing
the deceased
with that knife in the manner described by the witnesses at the
preparatory examination. He had no premeditation to
inflict fatal
injuries on his wife.

That the
accused believed that the deceased and Martins were maitaining an
illicit love affair is perhaps borne out by the evidence
of P.W.8 and
P.W.1, the police officer's who testified at the Preparatory
Examination stage that the accused had come to them with
reports or
complaints about the deceased's unfaithfulness to him."

9

On these
grounds, Mr.Matsau submits that the cumulative effect is that there
are extenuating circumstrances in this case. I agree.
It may be added
that Mr.Kabatsi for the crown also concedes,and in my opinion rightly
so, extenuating circumstances exist in this
case. It follows
therefore,that in my view, the proper verdict in this case should be
the one of murder with extenuating circumstances
and I accordingly
find.

My
assessors agree with this finding.

SENTENCE.-:

10 years
imprisonment operative from 1st June,1982, the date on which the
accused was kept in custody.

B.K.
MOLAI

JUDGE .

28th
February,1983