CRI/T/46/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

vs

NOZABALESE
'MOSO

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo. Acting Judge, on the 14th
August. 1995.

The
accused Nozabaleze 'Moso was charged before this court of the murder
of Bonkile 'Moso it being alleged that:

upon or
about the 7th day of July, 1995 and at or near Tele in the district
of Quthing the said accused did unlawfully and intentionally
kill one
Bonkile 'Moso.

A
preparatory examination had been held in which five (5) witnesses to
wit: P.W.1 'Masehloho Leaofe, P.W.2 Stephen Khakhau, P.W.3
Mahala
Ntloko, P.W.4 No.6373 D/Tpr. Mareki and P.W.5 Dr. A.J. Siddiqi had
given evidence. On the trial of the accused the defence
counsel had
admitted evidence of P.W.2, P.W.3, P.W.4 and P.W.5 and P.W.I had
testified.

2

In her
testimony P.W.I had told the court that accused was her granddaughter
who had lived with her as a baby. That accused's mother
had spent
most of her time in the Republic of South Africa working; she further
testified that accused had attended school though
she could not say
how far she went. She went on to say that although accused had a
child (the deceased) she was unmarried and as
to who was the child's
father accused had refused to tell. She went on to testify that the
deceased was not well provided and was
consequently not well
nourished because she had no sources of income save subsistence
farming. She said the child was sickly but
as she could not afford
she took the child to see a Dr. on those rare occasions whan money
was available. She had cared for the
child until it was 1 year seven
months old.

P.W.I
told the court on arriving home from gathering firewood she found
accused and the child had gone to their home and after reporting
the
matter to the chief and the police accused was found but without the
child and accused had said that she had left the child
in the donga.
Accompanied by the police she had gone to the spot where the child
was left and accused had pointed out the spot
where she had deposited
the child. The spot, according to her, viewed from the top, was a
crevice overlooking a ravine where, beneath,
there was water. The
party had then descended into the donga and the child was pointed out
by the mother (accused) and it was only
after the accused retrieved
the child (deceased) that they saw the child. The child had been
wrapped in a shawl and was already
dead.

3

Cross-examined
the witness said all of them including accused and the child were
starving but for her part she was happy with the
child because it was
God's gift. She denied she had in any way contributed to accused's
ghastly deed and denied when drunk she
had repeatedly referred to the
deceased as a bastard or that she did not want a bastard in her home.

It would
be quite fruitless to spent time delving into this witness's
evidence. I found her unsatisfactory in her evidence but this
can be
accounted for by the fact that she is Xhosa speaking and although
conversant in Sesotho there are times when she gets bamboozled

linguistically, sometimes. For example asked with what she had
thrashed accused with after it was found she had killed her child

P.W.I to the consternation of all of us said with a 'leaf. Now, by
leaf she actually meant a branch of the tree.' Whatever may
be said
about P.W.1's evidence, materially it was no different from what the
accused had herself testified to.

Medical
evidence had then been admitted by consent and marked Exh. "A"
and the Crown had closed its case.

The
accused then testified that she was 17 years old having been born an
5th June, 1977; that she was literate having gone up to
standard V
and failed to proceed with her education because she was pregnant.
She testified that she was unmarried. That one Sonny
was the father
of her dead child. She had informed Sonny of her pregnancy and he had
threatened to beat her up if she disclosed
this and this is why when
P.W.I had confronted her of the

4

pregnancy
she had not revealed who was responsible. Ever since Bonkile's (the
deceased) birth P.W.I had become hostile and was at
her worst when
drunk saying she could not bring up a child whose father she did not
know. Accused went on to testify how on a cold
and wintry day in
July, 1993 she went to a cafe and P.W.I had gone drinking and the
deceased who had been born on 17th May, 1992
was then 1 year 7
months. She had left hone to buy tablets to still her headache and
returning home she found the child sitting
outside, alone. Inquiring
why the child was alone outside at that time of day one Mmamms said
the child had been left there by
P.W.I. P.W.I had then said she was
to leave with the child and go wherever she wished. She testified
that this hurt her and she
put the child on her back for the fields
and had there thrown her into the donga and left for Herchel.

Back home
at P.W.1's accused went to testify that herbs were there prepared,
and she was made to undress and wash in the mixture.
She was
assaulted the while it was asked where the child was.

Cross-examined
the accused deposed that when she did the deed she was hurt and
befogged and that this was caused by finding her
child placed
outside. She demonstrated how she threw the child into the donga or
ravine by lifting her hands up with palms facing
upwards, jerking her
arms up and down and said the child went in head first and when she
turned her back on the child she expected
that child would die.

5

Asked by
the Assessor she said when she threw the child into the donga she was
awake and facing her but she was not looking at the
child.

To a
question by the court accused said she regretted this child ever
having born.

'Mamokhethi
'Moso (accused's mother) testified that accused had been born on 1st
July, 1977, She also disclosed the fact that she
had been sitting in
court throughout the proceedings and that she nevertheless knows
better when accused was born.

The
defence then closed its case.

Mr.
Lenono for the Crown submitted that accused anticipated that in
throwing the child into the donga the child would die and that
here
was so defence in the case. Further, that provocation was not a
factor in that the deed was not done in the beat of passion
as
accused had admitted aha was aware of the consequences of her deed.

Mr.
Mathafeng for the defence submitted that the court was to depart from
the rule which fixes criminal responsibility at 14 years
in that at
the time of committing the offence accused was 15 years old and that
the difference between 14 years and 15 years was
so marginal that it
could not be said that there was a difference in the ages. That it
was not challenged that P.W.I had in fact
abused the accused.

6

Mr.
Mathafeng submitted further that P.W.1's memory was doubtful as she
seemed to remember conveniently and selectively. That by
reason of
age accused did not have the capacity to appreciate the wrongfulness
of her deed and therefore lacked criminal responsibility.
That there
being no overlapping of ages as to criminal responsibility and the
age of accused this court apply rules of equity so
as to do justice
between man and man.

I have
found this case most disturbing. It boggles the mind how an
intelligent, clear-minded woman like the accused who, to me,
seemed
much older than her age, could have succumbed to such a ghastly deed.

It is to
be remembered that in this case the accused has not denied that she
killed her child in the manner demonstrated to this
court and that
her reason for this is that she was hurt and in a state of confusion.
Accused has told the court that this action
was precipitated by
finding her child sitted outside and P.W.I saying they could leave
and go with the child wherever she wished.
Even if this be true, I do
not see how this could have provoked accused to kill her child. As
was suggested, she could have gone
back to her home as she eventually
did or she could have given away this child to some relative to look
after. In any event, she
had a wide choice of alternatives.

As to the
allegation that she was provoked this is far-fetched for even if the
accused had an altercation with P.W.I that had nothing
whatsoever to
do with the deceased.

7

Our
Criminal Law (Homicide) Amendment Proclamation No. 42 of 1959 Section
4(a) provocation is defined as follows:

'The word 'provocation' means and includes, except as hereinafter
stated, any wrongful act or insult of such a nature as to be
likely,
where done or offered to an ordinary person or in the presence of
ordinary person to another person who is under his immediate
care to
deprive him of the power of self-control and to induce him to assault
the person by whom the act or insult is done or offered.'

Sub-section
3(1) and (2) respectively are to the effect that:

SS 3(1)

'A person
who

1. unlawfully
   kills another under circumstances which but for the provisions of
   this section would constitute murder and

   
   

2. does
   the act which causes death in the heat of passion caused by sudden
   provocation as hereinafter defined and before there is
   time for his
   passion to cool, is guilty of Culpable Homicide only."

   
   

SS (2)

'The provision of this section shall not apply unless the court is
satisfied that the act which causes death bears a reasonable

relationship to the provocation."

In this
case there is no causal link between the accused and the deceased nor
does the act which caused death bear a reasonable
relationship to the
provocation.

Asked by
one of the Assessors accused told the Court she was already on her
way with the deceased when she formed the intention
to kill the
deceased.

8

Accused's
case is in many ways ages of antiquity revisited. In ancient tines
and even now in some parts of the world people immplate
themselves
£or the sake of humanity's wrongs. But they take their own
lives and not those of innocent victims. It appears
to me that
accused looking at herself, the fact that she had a child by a man
who did not support the child, was herself and the
child not well
provided for and, as she told the court, regretted ever having had
this child, she saw the emptiness in herself
and saw the deceased as
disposable in order to relieve herself of problems associated with
the deceased.

She was
wrong, in my view, to have taken such a morbid and narrow path as to
translate her emptiness into taking the life of an
innocent child.

This is a
case which must be distinguished from S. v. P. 1972(3) S.A. 412f
A.D.) where the age of the accused and an unhappy upbringing
were
(rightly so in my view) taken as some of the factors in extenuation
by the trial court.

In S. v.
P. (supra) a boy had twisted a chain around the neck of an escort
until the escort had collapsed. lbs trial court had drawn
the
inference that the boy must have subjectively foreseen the
possibility of resultant death and that therefore this was a case
of
dolus eventualis and the boy having been found guilty of murder the
appeal court reversed the finding to one of guilty of culpable

homicide on the grounds that dolus eventualis had not been
established.

9

Apparently
Holmes J.A. had relied on the disclosure by the appellant that at the
industrial school they had played such games as
twisting a towel
round a playmate's throat whereupon the victim would fall to the
floor, kicking and bumping his head with no fatal
consequences. Mr.
Justice Holmes was of the view that the appellant when he twisted a
chain around the neck of the escort it was
playing a similar game and
it could not be said that the appellant had the intent to kill the
escort constructively.

As far as
this court is concerned, accused played no games nor did she put up
any valid defence except her age which was said to
be borderline.

Both
accused and her mother (the latter in spite of having been in court)
respectively testified that accused was born on 5th June,
1977 and
1st July, 1977 so that at the time of commission of the crime accused
was 15 years old at least.

Snyman
(Criminal Law, 2nd Ed.) p.168 says that a child 'after completion of
his seventh year but before completion of his fourteenth
year (in
other words, till just before his fourteenth birthday) _________ is
rebuttably presumed to lack criminal capacity' and
that courts refer
to such a child who lacks criminal capacity as being doli incapax.
Quoting Nhamo's case (1956 1 EH H28(SR), Snyman
says 'the closer a
child approaches the age of fourteen years, the weaker is the
presumption that he lacks criminal capacity.'
p.120.

10

It was
not contested by the defence that accused was 15 years or that aba
was over the age of 14 years whan she committed the crime.
All I was
asked to determine was whether, given accused's age, she had criminal
capacity to commit the crime and I hold that when
accused killed her
child she had the criminal capacity to do so.

I bold
that in this case the crown has proved its case beyond reasonable
doubt and in addition, notwithstanding accused's age and
hence
immaturity and the fact of her unhappy upbringing, I do find that
when she threw her child down the ravine in a manner she
demonstrated
to court accused oust have subjectively foreseen the possibility of
resultant death and was reckless as to the fatal
consequences
thereof.

Accordingly
accused is found guilty of murder. My assessors agree.

G.N.
MOFOLO

ACTING
JUDGE

7th
August, 1995.

For the
Crown: Mr. Lenono

For the
Defence: Mr. Mathafeng

EXTENUATING
CIRCUMSTANCES

In view
of accused's age and hence her immaturity and her unhappy upbringing
there are, in this case, extenuating circumstances
and counsel was
sparred the trouble of addressing the court on this question.

The court
is much indebted especially to the Probation Officer who presented a
well prepared and reasoned document regarding circumstances
of the
accused and what might be best for her. The invaluable arguments in
mitigation of sentence by both Counsel were also seriously
considered
but nothing said has changed this court's mind that the accused,
circumstanced as she is, requires strong, effective
and hopefully
enlightened supervision to place her on course to take her rightful
place in society as a responsible and caring
mother.

The
sentence of the Court is that the accused is sentenced to detention
in juvenile training centre subject to Prisons Proclamation
30 of
1957.

My
assessors agree.

G.N.
MOFOLO

ACTING
JUDGE

17th
August, 1995.