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CRI/T/68/91

IN TEE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

MONTOELI
TLAITLAI ACCUSED

JUDGMENT

Delivered
by the Honourable Chief Justice Mr. J.L. Kheola on the 19th day of
October. 1995

The
accused is charged with murder. It is alleged that upon or about the
31st day of May, 1989, and at or near Tlaitlai village
in district of
Mafeteng, the said accused did unlawfully and intentionally kill one
'Mathabang Tlaitlai.

To this
charge the accused tendered a plea of guilty to culpable homicide.
The Crown did not accept the plea and decided to prove
the crime of
murder.

According
to the medical evidence, which was accepted by the defence, the
deceased died as a result of left haemopneumothorax and
subsequent
haemorrhagic shock. Externally there was a deep penetrative wound
left axial line.

It is
common cause that all the injuries which caused the

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death of
the deceased were inflicted by the accused with a sharp instrument
identified as Exhibit I.

The first
witness called by the Crown is one Sootho Khantsi. He testified that
at dusk on the 31st May, 1989 he was at his home
when he heard an
alarm by one 'Matanki, the wife of the accused. He immediately went
to the home of the accused. When he arrived
there he entered into the
house and found the accused sitting on the bed. The deceased was
lying on the floor. He asked the accused
what was the matter. He said
that there was nothing. Seeing that the deceased had some injuries
Sootho rushed to the chief's place
and told the chief what he had
seen. The chief came to accused's house accompanied by Sootho and
asked him what had happened. The
accused said that when he heard
obituaries over the radio he suddenly remembered his late mother. He
then rushed at the deceased
and stabbed her with Exhibit I. He later
handed over exhibit 1 to the chief.

Sootho
observed the following wounds on the deceased - a wound below the
left eye, a wound on the left breast, another on the left
shoulder
and the last one on the head. The deceased was still alive. After her
wounds were bandaged she was carried to her home.
She died during the
night. The deceased was accused's aunt.

Under
cross-examination Sootho said that the accused explained that the
deceased had killed his late mother by witchcraft.

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The
second witness called by the Crown is Bochabela Tlaitlai who is the
chief of that village. He said that when he saw the deceased
lying on
the floor with several injuries on her. He asked the accused what had
happened.

In reply
he said that he was listening to obituaries over the radio when the
deceased arrived. He suddenly remembered his late mother.
He then
rushed at the deceased and stabbed her with Exhibit I which was given
to him (the chief) by the wife of the accused who
admitted that it
was the weapon he used to stab the deceased.

Chief
Bochabela explained that when the mother of the accused died in 1989
it was alleged that she had been bewitched by the deceased.
The
latter denied this allegation. He told the Court that there were many
witches in his village..

P.W.3
'Malehlohonolo Tlaitlai is the aunt of the accused. She testified
that on the evening in question she was sleeping in her
house when
one Tseliso came and woke her up. She went to the home of the
accused. The accused explained to the chief why he stabbed
the
deceased. 'Malehlohonolo testified that the relations between the
accused and the deceased were cordial. The accused and his
wife used
to visit the home of the deceased. The latter also used to visit the
home of the accused and they used to sing together
the hymns of the
Apostolic Church. She said that she and accused are maintaining good
relations.

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In his
defence the accused went into the witness box and gave a sworn
statement in which he said that he has a mental illness. He
sometimes
consults a psychiatrist or a traditional doctor. He strongly believes
in witchcraft and has held that belief for a very
long time. He
strongly believes that his late mother was killed by the deceased
through witchcraft. His belief is based on the
ground that before her
death his mother had been a very healthy person. When she fell ill
she said that the deceased was straggling
her. She was lying on the
ground and held her neck as if she was removing the hands of a person
strangling her. The deceased eventually
came to his parents' home and
her attention was drawn to what his mother had said. In reply she did
not refute the allegations
against her but said that his mother
should not point out her alone, she must point out the others as
well.

The
accused said that before the death of his mother his relations with
the deceased were cordial. The death of his mother soured
their
relations to such an extent that they no longer visited each other's
home. At about 8.00 p.m. on the night in question the
deceased came
to his home. At the time of her arrival he was listening to the
obituaries over the radio. He asked her what he wanted
at his place.
He repeated the question three times but the deceased did not
respond. He got frightened because the deceased had
killed his
mother. He took Exhibit 1 and stabbed her with it. He did not aim at
any particular part of her body, nor did he count
the number of times
he stabbed her; but it was more than once. He intended to injure

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her in
order to scare her away from his home.

The
accused denies that they used to visit the home of the deceased for
the purpose of singing hymns together. He kept Exhibit 1
under his
bed because he used it to slaughter cattle.

In her
submission Miss Mokitimi, counsel for the Crown, stated that
intention of an accused person can be inferred from the part
of the
body which was injured and the weapon used by the accused. In the
present case the accused stabbed his victim directly on
the heart
region and that wound caused extensive internal bleeding. He used a
very dangerous weapon which is a long metal, sharp
pointed and
sharpened on both sides. The accused has attempted to rebut this
inference by saying that he was frightened and did
not even count how
many times he stabbed the deceased. He did not aim at any particular
part or parts of the body. This cannot
be true because there is only
one dominant wound which is the only one dominant wound which is the
cause of death. The deceased
was sitting on a chair when the accused
aimed his thrust at the heart of the deceased. It is most unlikely
that it was just by
chance that the thrust landed on the heart.

Mr.
Mathafeng, counsel for the defence, submitted that the Crown has not
supplied any material from which an inference can be drawn
that
subjectively the accused foresaw that the injuries he inflicted on
the deceased would cause her death. He based his submission
on the
following grounds:

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1. That
   the deceased was capable of harming him (accused) through
   witchcraft,

   
   

2. The
   deceased intruded into the home of the accused and refused to leave
   nor state the object of her visit,

   
   

3. the
   deceased decided to make such intrusion at night,

   
   

4. the
   accused did not seek out and stalk the deceased, see Rex v. Nathane
   1974-75 L.L.R.

   
   

5. there
   is only one wound which probably is the fatal one,

   
   

6. the
   accused told the Court that his intention was to injure and to
   frighten the deceased to leave his place.

   
   

The above
submissions by the defence counsel are made on the assumption that
the accused's version of what transpired before he
stabbed the
deceased with Exhibit 1 is the correct one. The story of the accused
must be analysed very carefully and also be considered
not in
isolation but with all the evidence in the case. Immediately after
the stabbing of the deceased the chief confronted the
accused and
asked him why he stabbed the deceased. His reply was that when the
deceased arrived at his home that night he was listening
to the
obituaries over the radio. He suddenly remembered his late mother and
took Exhibit l and

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stabbed
her (deceased). He did not mention that the first thing he did was to
ask the deceased the reason for her visit and asked
her to leave his
house; that she refused to leave and failed to give the reason for
her nocturnal visit.

It seems
to me that according to the accused's story the most important reason
why he stabbed the deceased was that she refused
to leave the house
when he ordered her to do so. She also refused to explain the purpose
of her visit at that time of the night.
It is surprising that when
the accused explained to the chief the reason why he stabbed the
deceased, he did not mention that she
refused to leave his house when
he ordered her to do so. He did not mention that she refused to give
the reason of her visit at
that time of the night. These important
facts ought to have been first and foremost in his mind when he first
gave an explanation.
It is improbable that he could forget such
important facts in his explanation to the chief. I have formed the
opinion that the
accused is telling a lie and that these new things
which he mentions for the first time in Court are an after thought.

It cannot
be true that after the death of the mother of the accused the
deceased never visited his (accused's) home. We have heard
the
evidence of his aunt who said that the accused and his family and the
deceased used to visit each other's home and sang hymns
together. The
impression I had of 'Malehlohonolo Tlaitlai, as a witness, was that
she was reliable and was telling the Court the
truth. She testified
that she and the accused had and still

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have very
cordial relations. This fact was never challenged by the defence and
there was no apparent reason suggested by the defence
why she could
falsely make statements which conflict with those of the accused.

I have
formed the opinion that when the deceased arrived at the home of the
accused that evening it was not for the purpose of practising

witchcraft on the accused and his family, but for the purpose of
singing hymns with the accused or just a friendly visit.
Unfortunately
she came at the wrong time when the accused was
listening to obituaries over the radio. He suddenly remembered his
late mother
who was allegedly bewitched by her. As a person who
believes in witchcraft the accused knows that witchcraft is secretly
practised.
A witch does not openly go to her victim's house and
bewitch him. The deceased could not have gone to the accused's home
at night
and for the first time after a long time, in order to
practise witchcraft on him. I believe the evidence of 'Malehlohonolo
that
the deceased and the accused used to visit each other. On that
fateful night the deceased was visiting the accused's for an innocent

purpose but merely came at the wrong time and upset the accused.

In S. v.
Sigwahla 1967 (4) S.A. 566 A.D. at p.570 Holmes, J.A. said:

"that, however, does not conclude the enquiry because the
following propositions are well settle in this country:

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1. The
   expression "intention to kill" does not, in law,
   necessarily require that the accused should have applied his will
   to
   compassing the death of the deceased. It is sufficient if the
   accused subjectively foresaw the possibility of his act causing

   death and was reckless of such result. This form of intention is
   known as dolus eventualis, as distinct from dolus directus.

   
   

2. The
   fact that objectively the accused ought reasonably to have foreseen
   such possibility is not sufficient. The distinction must
   be observed
   between what actually went on in the mind of a bonus paterfamilias
   in the position of the accused. In other words,
   the distinction
   between subjective foresight and objective foreseeability must not
   become blurred. The factum probandum is dolus,
   not culpa. These two
   different concepts never coincide.

   
   

3. Subjective
   foresight, like any other factual issue, may be proved by inference.
   To constitute proof beyond reasonable doubt the
   inference must be
   the only one which can reasonably be drawn. It cannot be so drawn if
   there is a reasonable possibility that
   subjectively the accused did
   not foresee, even if he ought reasonably to have done so, and even
   if he probably did do so.

   
   

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See S. v. Malinga and Others 1963 (1) S.A. 692 (A.D.) at p. 694 G-H
and S.v. Nkombani and Another, 1963 (4) S.A. 877 (A.D) at pp.
883A-C,
890B, 895F."

The facts
in Sigwahla's case were more or less the same as the facts in the
present case. The learned Judge of Appeal summarised
them on page 570
as follows:

"In the present case the salient facts are that the appellant
was armed with a long knife which he held in his hand; that
he
advanced upon the approaching deceased; that as he came up to him he
jumped forward and raised his arm and stabbed him in the
left front
of the chest; that the force of the blow was sufficient to cause
penetration for four inches and to injure his heart;
and that there
is nothing in the case to suggest subjective ignorance or stupidity
or unawareness on the part of the appellant
in regard to the danger
of a knife thrust in the upper part of the body. In my opinion the
only reasonable inference from those
facts is that the appellant did
subjectively appreciate the possibility of such a stab being fatal.
In other words I hold that
there exists no reasonable possibility
that it never occurred to him that his action might have fatal
consequences, as he was advancing
on the deceased with the knife in
his hand and as he was raising his arm to strike and as he was aiming
a firm thrust in the general
direction of the upper part of his
body."

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In our
present case the salient facts are that the accused was listening to
obituaries over the radio; the deceased suddenly entered
into the
house and sat on a stool; the accused suddenly remembered his late
mother who was allegedly bewitched by the deceased;
he took Exhibit 1
from under the bed and stabbed her because he was scared and thought
that the deceased had come for the purpose
of practising witchcraft
on him. There is nothing to suggest that the accused was not aware
that Exhibit 1 is a very dangerous
weapon; he used it for the
slaughtering of cattle and was definitely aware that it was a lethal
weapon. He directed his thrust
at the chest of the deceased. He
intended to injure the deceased. In my opinion the only reasonable
inference to be drawn from
those facts is that the accused did
subjectively foresee the possibility of that stab being fatal but was
reckless of such result.
In that sense the accused had the legal
intention (dolus eventualis).

For the
reasons stated above I find the accused guilty of murder as charged.

My
assessors agree.

J.L.
KHEOLA

CHIEF
JUSTICE

19TH
OCTOBER, 1995.

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Extenuating
Circumstances

It is
trite law that a belief in witchcraft is an extenuating circumstance.
The accused believed very strongly that the deceased
was a witch who
killed his mother through witchcraft. As she was dying she held her
neck and said that the present deceased was
strangling her. The
accused believed that the deceased actually strangled his mother.

Another
extenuating circumstance is that this is a case of dolus eventualis.

Sentence:
In passing sentence I took into account all the mitigating factors
mentioned by Mr Mathafeng.

The
accused is sentenced to ten (10) years imprisonment.

J.L.
KHEOLA

CHIEF
JUSTICE

19th
October, 1995.