HIGH COURT OP LESOTHO
by the Hon. Mr. Justice B.K. Molai on the 5th day of June. 1995.
accused is before me on a charge of murder, it being alleged that on
or about 19th May, 1993 and at or near Moknethoaneng in
of Berea he unlawfully and intentionally killed 'Matlhahane Chake.
charge was put to him, the accused pleaded guilty to culpable
Homicide which plea was, however, not accepted by the crown.
Consequently, a plea of not guilty was entered.
commencement of the trial, Mr. Mathafeng. who represents the accused
in this matter, told the court that the defence admitted
depositions of Sgt. Maphatsoe and Mohaliki Chake who had testified as
P.W.1 and P.W.7, respectively, at the Preparatory Examination
proceedings. Mr. Mofelehetsi. counsel for the crown, accepted the
admissions made by the defence
The depositions of P.W.1 and P.W.7 at the proceedings of the
Preparatory Examination were, therefore, admitted in evidence
became unnecessary to call the deponents as witnesses in this trial.
the course of the hearing of this trial, Mr. Mathafeng on behalf of
the accused person, admitted the deposition of Tumisang
had testified as P.W.6 at the proceedings of the Preparatory
Examination. The admission made by the defence counsel
by Mr. Mofelehetsi for the crown. The deposition of P.W.6 at the
Preparatory Examination proceedings likewise became
evidence and it
was therefore, unnecessary to call the deponent as a witness in this
mortem report of a medical doctor who had performed the autopsy on
the dead body of the deceased was not challenged. It
handed in from the bar as exhibit "A" by consent of both
stated, the evidence of Sgt. Maphatsoe was to the effect that on the
night preceding 20th May, 1993, he was on duty at the
CID office in
Maseru. He received a certain report following which he proceeded to
a village called Mokhethoaneng. He was
in a police vehicle.
arrival at the village, the police officer went to a certain cafe
where he was shown a dead body of a woman. The body was identified
him as that of the deceased "Matlhahane Chake, It was covered
with blankets and lying in front of the counter inside the
uncovering it, Sgt Maphatsoe found that the body was lying in a pool
of blood . He examined it for injuries and observed
two open wounds.
The first wound was above the left breast and the second wound was on
the left arm. The accused together with
a knife were handed to him by
the chieftainesa of the area. Following the accused's explanation
Sgt. Maphatsoe cautioned, arrested
and charged him as aforesaid. He
took possession of the knife and kept it in the custody of the
police. Although it had been handed
in as Exh "1" at the
proceedings of the Preparatory Examination, the knife could no longer
be traced. It was, therefore,
not available for use as exhibit in
had examined it for injuries, Sgt Maphatsoe conveyed the deceased's
dead body in a police vehicle, to the mortuary at Queen
hospital, where it was examined by a medical doctor. The dead body
sustained no additional injuries whilst it was
being transported from
the village of
to the mortuary at Queen Elizabeth II hospital.
As it has
already been pointed out earlier, the post mortem Examination Report
was, by consent of both counsels, handed in from
the bar as Exh "A".
According to Exh. "A" on 25th May, 1993 Dr. K.L.Lerotholi
examined a dead body of a female
African adult at Queer Elizabeth II
hospital. The body was identified as that of the deceased,
'Matlhahane Chake, by Mohalike Chake
and Lentsoe Chake.
evidence of Mohalike Chake was to the effect that the deceased was
the wife of his own brother. He, therefore, knew her well.
confirmed the report, Exhibit "A", that he was one of the
people who, on 25th May, 1993, identified the body of the
before Dr. K.L. Lerotholi, the medical doctor who conducted the post
Lerotholi's external examination of her dead body revealed that the
deceased had sustained a 5 cm x 2 cm gaping wound on her
intercostal space. She had sustained another 6cm x 2cm laceration on
her left brachial region. The laceration on the arm was
no vessels had been transected.
opening the body, the medical doctor found
wound on the left intercostal space of the deceased had penetrated
into the thoracic cavity and punctured the medial portion
of the left
lung. The result was massive haemothorax and collapse of the lung. On
the basis of these findings, the medical doctor
formed the opinion
that death was due to the massive haemothorax and collapse of the
think of no good reasons why the opinion of the medical doctor that
the deceased died as a result of the massive haemothorax
of the lung caused by the wound on her chest should be doubted. The
important question that now arises for the determination
of the court
is whether or not the accused is the person who inflicted the wound
on the deceased and, therefore, brought about
regard, the court heard the evidence of P.W.2, 'Mantebaleng Khojane,
who testified that she was a school teacher at Makebe
The accused was a son of her paternal aunt and, therefore, her
cousin. On the evening of the day in question, 19th
May, 1993, she
went for a drink at a cafe of a certain Mokopi Molai in the village
of Mokhethoaneng. She was in the company of
the deceased, "Matlhahane
Chake who was her personal friend. After her arrival at the cafe,
P.W.2 bought altogether three
quart bottles of beer which she shared
with the deceased.
standing at the counter as they drank their beer and chatted in the
cafe. Whilst she and the deceased were drinking, other
arrived in the cafe. They were Tumisang Sestine and Theko Limena.
Shortly thereafter the accused also came to the cafe.
He was in the
company of a certain Isaac Khojane. On arrival, the accused appeared
to be already under the influence of liquor.
He and Isaac sac on a
bench next to Tumisang and Theko.
to P.W. 2, there was a time when the accused left the bench on which
he and the other people were seated in the cafe.
He came to the
counter where she (B.W.2) and the deceased were standing as they
drank their beer. On arrival at the counter the
accused caught the
deceased by blanket and pulled her out of the cafe. The deceased did
not offer any resistance and the two went
out of the cafe peacefully.
About 9 minutes later the deceased returned into the cafe. She was
followed by Mokopi Molai, As she
re-entered into the cafe, the
deceased said : 'Mantebaleng, I am dying. 'Neko has stabbed me wich a
knife" As she uttered
those words the deceased fell on the
floor. She was clearly bleeding from the chest and the arm,
Aaron Kheo, whom P.W.2 noticed for the first time in the cafe, tried
to support the deceased.
Molai, the owner of the cafe, went to look for a vehicle, presumably
with which to rush the deceased for medical treatment.
Molai returned with the vehicle, the deceased had unfortunately
already passed away.
the same night, the police arrived at the cafe. According to P.W.2,
the accused told the police that he had stabbed the
he wanted a M100 which she owed to him, Eventually the dead body of
the deceased and the accused were taken to
Maseru by the police.
Molai testified as P.W.1 and confirmed that he was the owner of the
cafe in the village of Mokhethoaneng. On the evening
of 19th May,
1993 he and his wife, 'Malerato Nolai, were working in the cafe. On
his arrival at the cafe that evening, Theko Limena,
P.W.2 and the deceased ('Matlhahane Chake) were amongst the people
who were drinking in the cafe.
7.45 p.m. he was about to close the shop when he noticed the accused
and Isaac Khojane coming in. They were already under
the influence of
liquor He then asked the accused what he wanted at the shop so late
when he was already drunk. In reply the accused
said as he (P.W.1)
was about to close, he
soon leave the shop. However, the accused and his companion sat on a
thereafter, the accused stood up and went to the counter where the
deceased and P.W.2 were drinking their beer. P.W.1 then
accused pulling the deceased, 'Matlhahane Chake, out of the shop. As
he thus pulled her, the accused was telling the
deceased that they
should leave. A few minutes after the accused and the deceased had
gone out of the shop P.W.1 heard the latter
leave me alone. Jo! Neko is stabbing me with a knife" or words
to that effect. When he heard the scream
P.W.1 went out of the shop
and found that the deceased had been injured. He assisted her back
into the shop where she fell on the
floor. P.W.1 could see that the
deceased had, on the left chest, a wound which was bleeding
profusely. She also had a large bleeding
wound on the left arm. P.W.1
then ordered the accused, who was by then seated on a bench inside
the shop, not to leave that place.
Ha himself went to look for a
confirmed the evidence of P.W.2 that when he returned with the
vehicle, he found that the deceased had already passed away.
used the same vehicle to go to Maseru police station where he
reported the incident. He confirmed the evidence of Sgt Maphatsoe
that the police officers immediately
the scene of crime and the body of the deceased was eventually taken
away in a police vehicle.
unchallenged evidence of Tumisamg Sastine, who as it has already been
pointed out earlier in this judgment testified as P.W.6
proceedings of the Preparatory Examination, was to the effect that on
the evening of the day in question, 19th May, 1993
he was at the shop
of P.W.1. He apparently did not see the accused actually pulling the
deceased out of the shop. He, however,
confirmed that whilst he was
in the shop he heard the deceased screaming outside: "Neko has
stabbed me with a knife"
or words to that effect. When she
entered into the shop the deceased fell on the floor. He could see
that the deceased had sustained
two injuries viz. a stab wound above
the left breast and another wound on the left arm. After the accused
had admitted that he
was the one who had stabbed the deceased, the
witness left the shop and returned to his house in the village of
evidence P.W.3, Theko Limena, told the court that he was illiterate
and hard of hearing. A brother of the deceased was married
sister. The deceased was, therefore, his sister-in-law.
to him, on the evening of the day in
19th May, 1993, P.W.3 went to buy tobacco at the shop of P.W.1. On
arrival he found many people at the shop. The deceased,
and his wife were all standing behind the counter. The accused and
Isaac Khojane were standing outside the counter
and facing the people
behind the counter. Neither the accused and Isaac nor the people
behind the counter were talking or doing
anything in the shop.
significant that of all the witnesses who have so far testified
before the court P.W.3 is the only one who says P.W.2 and
deceased were standing behind the counter whilst the accused and
Isaac,were standing outside the counter. Although in his evidence,
P.W.3 told the court that the people in the shop were not talking it
must be borne in mind that in his own words he was hard of
He probably did not hear the people who were talking in the shop.
Indeed, I would find it strange that the people in that
shop were not
talking, more particularly so as there was beer selling and drinking
in the shop.
as it may, P.W.3 went on to testify that he asked for "BB"
tobacco and was served by P.W.1's wife. After he had
paid for the
tobacco he noticed the accused violently pushing the deceased out of
the shop. Because of the manner in which the
accused was pushing the
deceased, P.W.3 followed them out of the
However, when he came to the entrance, he passed the accused who was
returning into the shop.
the shop P.W.3 found the deceased who made a certain report about the
accused. The deceased then returned into the shop
and P.W.3 followed
her. On entering the shop, the deceased fell on the floor. She had
clearly sustained, above her left breast,
a wound which was bleeding
profusely. There was another bleeding wound on her left arm.
(P.W.3) and other people were assisting her, the accused was just
standing at the counter and did nothing to assist the
eventually passed away. He confirmed that, later on the same night,
the police attended the scene of crime and carried
away the dead body
of the deceased.
view, P.W.3 was not entirely reliable witness. I am not prepared,
therefore, to accept his evidence as the truth unless it
corroborated by the evidence of a more reliable witness.
testimony, P.W.4 'Masekate Chake, told the court that the deceased,
who was her relative, lived in the same village as she
to her on the night of 19th May, 1993 P.W.4 was with her husband at
her house in the village of Mokhethoaneng when
scream. She drew the attention of her husband to the scream. Whilst
she was talking to her husband P.W.4 heard a knock at
the door. When
she opened the door she found it was Mohalike Chake; the younger
brother of the deceased's husband. Mohalike Chake
made a certain
report following which P.W.4 and her husband immediately proceeded to
the shop of P.W.1 in the village.
arrival at the shop P.W.4 found the dead body of her relative, the
deceased. It was covered with her (deceased's) own "Letlama"
blanket. She uncovered the body and examined it for injuries. She
found that the deceased had sustained two injuries viz. a wound
the left breast and another wound on the left arm. When she inquired
how the deceased had sustained those injuries, the accused
had stabbed her with a knife. Asked where the knife was and why he
had stabbed her, the accused did not reply. P.W.4 then
mouth of the deceased. She asked for a candle from the wife of P.W.1.
With the aid of a candle light P.W. 4 searched
outside the shop. In the course of the search she noticed something
shinning on the ground, about 5 paces from
the building of the shop.
She picked it up and found that it was a knife. She took possession
of the knife, returned into the shop
and handed it to the local
chieftainess, 'Mabofihla Majara, who had also
at the shop.
defence, the accused gave evidence on oath and told the court that on
the day in question, 19th May, 1993, he and Isaac Khojane
were at a
shop of Ranthako in the village of Mokhethoaneng. They had been
drinking quart bottles of beer for the whole day. He
not very drunk.
9 p.m. the accused and his friend Isaac proceeded to the shop of
P.W.1 to drink more beer. He confirmed that on arrival
shop he found Tumisang Sestine, P.W.2, P.W.3, the deceased, P.W.1 and
his wife. Some of the people in the shop were
drinking beer whilst
others were dancing to a music.
the accused told the court that he did not buy any beer at P.W.1's
shop because on his arrival at the shop P.W.1 asked
him what he
wanted at the shop since he was already drunk. When he was questioned
by the learned Assessor, the accused, however,
changed and said he
did buy one quart bottle of beer which he shared with Isaac. The
evidence of accused that he bought beer at
P.W.1'a shop was denied by
P.W.1 himself, P.W.2, P.W.3 and Tumisang Sestine.
evidence was, in my view, simply overwhelming against the accused.
There is no doubt in my mind,
that the accused was not being honest with the court when he told the
learned Assessor that he had bought a quart bottle
of beer at P.W.1's
as it may, the accused went on to testify that he and the deceased
had an illicit love affair, Before leaving the shop he
went to his
lover, the deceased, at the counter and asked her when she would
return M100 he had lent to her. In reply the deceased
said she would
return the money soon. Thereafter the accused was leaving the shop
when the deceased caught hold of him and said
she wanted to go with
him. The accused tried to free himself from the deceased who,
however, held on to him till they got out of
the shop. In the process
the zip of his lumber jacket broke open.
It may be
mentioned that in their evidence P.W.1 and P.W.2 told the court that
they clearly saw that when he arrived at the shop,
the accused was
wearing a sleeveless lumber jacket which was already open and not
zipped. They denied the accused's evidence that
when he and the
deceased went out of the shop the latter was in any way holding him.
Their evidence that as they went out of the
shop it was the accused
who was pulling or pushing the deceased was corroborated by P.W.3 and
Tumisang Sestine. I am prepared to
accept as the truth the evidence
by P.W.2, P.W. 3 and Tumisang Sestine and reject as false the
accused's uncorroborated version on this point.
event the accused told the court that to his knowledge, the deceased
was a person ordinarily scared of knives. When they
were outside the
shop, the accused, therefore, pulled a knife out of his pocket
intending to scare the deceased. He then struck
a single blow at the
deceased with the knife which, in the process, cut the deceased's
left arm and penetrated into her chest.
He conceded that he must have
used great force for the knife to have cut the deceased's arm and
penetrate into her chest. According
to the accused, after he had
stabbed the deceased, the knife dropped to the ground. He could not
see where it had dropped because
it was dark outside. He denied,
therefore, the suggestion that he had thrown away the knife after
stabbing the deceased.
accused had stabbed her in the manner he described, the deceased
returned into the shop. He followed her. Inside the shop
screamed that he (accused) had stabbed her with a knife and then fell
on the floor. The accused tried to assist her
to a sitting position
but unfortunately the deceased passed away. The accused denied,
evidence of P.W.3 that he did nothing to assist the deceased after he
had injured her.
the accused claimed to have assisted the deceased after he had
injured her, it is worth mentioning that P.W.3's evidence
that he did
not, was corroborated by P.W.2 and P.W.1. In my view, the accused was
not being honest with the court. I reject as
false his story and
accept as the truth the evidence of P.W.3 corroborated by that of
P.W.2 and P.W.1.
large, I am satisfied, on the evidence, that the accused is the
person, who inflicted the stab wound on the deceased's left
and, therefore, brought about her death. The question that
immediately arises for the determination of the court is whether
not in stabbing the deceased with a knife, as he did, the accused had
the requisite subjective intention to kill.
contention of the accused, he had no intention to kill the deceased.
He merely wanted to scare her away. It must, however
that in the evidence of the accused himself when he pulled out the
knife to scare away the deceased, as he wants
this court to believe ,
it was dark outside the shop and admittedly the deceased could not
see it (the
That being so, I find it incredible that the accused would have
reasonably expected the deceased to be scared away by a
could not see under the darkness. The accused was simply not being
honest with the court and I have no hesitation in
evidence, as false, on this point.
accused admittedly used, with great force, a weapon as lethal as a
knife to stab a defenceless woman on the upper portion of
He must have realised that death was likely to occur. He nonetheless
stabbed the deceased reckless of whether or not
death did occur. It
is reasonable to infer, therefore, that in stabbing the deceased with
a knife, as he did, the accused had the
intention to kill, at least in the legal sense.
result, I have no alternative but to come to the conclusion that the
accused is guilty of murder as charged. He is accordingly
assessor agrees with this finding.
Crown: Mr. Mofelehetsi
Defence: Mr. Mathafeng.
convicted the accused of murder, the court is now enjoined by the
provisions of S. 296 of the Criminal Procedure and Evidence
to state the existence or otherwise of any factors that tend to
reduce the moral blameworthiness of his act. In this
court is invited to take into account firstly that there is evidence
that before inflicting the fatal injury on the
deceased the accused
had been consuming beers and was, therefore, intoxicated. Secondly,
in inflicting the fatal injury upon the
deceased as he did, the
accused had, in the finding of the court, legal intention to kill and
had not, therefore, premeditated
It is, in
my opinion, a well known fact of life that, under the influence of
liquor, people tend Co do things they would otherwise
not do when
sober. I, therefore, entirely agree with the decision in S. v.
Ndhlova (2) 1965(4) S.A. 692 where Homes, J.A. had this
to say at
"Intoxication is one of humanity's age - old frailties, which
may, depending on the circumstances, reduce the moral blameworthiness
of a crime."
in this case, no evidence that the
planned or premeditated the death of the deceased. For this reason
the court found that in inflicting, am he did, the fatal
the deceased, the accused had intention to kill, in the legal sense
i.e. he did not premeditate or plan her death. This
premeditation is, in my judgment, a factor that tends to reduce the
moral blameworthiness of the accused's crime of
foregoing, I come to the conclusion that extenuating circumstances do
exist in this case viz. intoxication and lack of
proper verdict is, therefore, that the accused is guilty of murder
with extenuating circumstances.
mitigation of the accused's punishment, the court was invited to
consider a number of factors viz. that the accused had no record
previous convictions and was, therefore, a first offender; when the
charge was put to him, the accused pleaded guilty to culpable
Homicide, hopefully as a sign of his remorse; he was a breadwinner
for his wife and three (3) minor children, who would be without
breadwinner and, therefore, suffer mostly if the accused were to be
severely punished by a long term of imprisonment; the offence
committed some two (2) years ago and the fact that it had since been
lingering in the mind of
accused person was a punishment in itself. The court had also been
reminded that according to custom, the relatives of the deceased
would, in all probabilities, sue the accused to raise the head of the
deceased in the amount of ten (10) herd of cattle. In sentencing
the court should, therefore, bear in mind that the accused was yet to
face another punishment in the civil courts or else the
that the courts of law punished a person twice for the same offence
would be hard to avoid.
that all the factors to which the court's consideration has been
invited, in mitigation of the accused's punishment, should
be taken into account. I am, however, not prepared to turn a blind
eye to the seriousness of the offence with which the
accused has been
convicted. He has been found guilty of depriving another human being
of her God given life which is, for that
takes note of the fact that the deceased and other members of the
society were innocently enjoying themselves over a glass
after a day's work. It is disturbing that the accused decided to go
to their drinking place armed with a knife with which
stabbed the deceased for the flimsiest of reasons. Too many people in
this country have lost their lives through the
use of these
There is a real need to bring this to a halt I come to the conclusion
that, in the circumstances an appropriate punishment,
which is likely
to deter the accused and people of his mind from a repetition of this
sort of a thing, is twelve (12) years imprisonment.
The accused is
Crown : Mr. Mofelehetsi
Defence : Mr. Mathafeng.
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