CRI/T/5/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

vs

LELE
MOKHOHLANE

JUDGMENT.

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 11th day of November,
1985.

The
accused before me, Lele Mokhohlane, is indicted upon a charge of
murdering Ntai Matsoso (hereinafter called the deceased) on
or about
the 8th October, 1984 and at or near Liotloaneng in the district of
Berea. To this charge the accused tendered a plea
of guilty of
culpable homicide. Mr. Lenono for the Crown did not accept this plea
and elected to lead evidence which would show
that the accused
committed murder.

It is
common cause that the death of the deceased was probably due to shock
and internal bleeding following a stab wound on the
abdomen. When Dr.
Sendyose carried out a post mortem examination on the body of the
deceased he found a 2CM stab-wound left side
of mid-line of abdomen
with omentum protruding. Blood was oozing from the mouth and nose. It
is also common cause that the stab-wnund
was inflicted by the accused
with the spear exhibited before this court (Exhit 1) . . Mr. Matlhare
for the defence contended that
the accused was so drunk that he was
incapable of forming the specific intent required in murder.

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Our law
as regards the criminal liability of intoxicated persons is found in
Proclamation 60 of 1938 which reads as follows:

"2. (2) Intoxication shall be a defence to any criminal charge
if by reason thereof the person charged at the time of the
act or
omission complained of did not know that such act or omission was
wrong or did not know what he was doing and –

1. the
   state of intoxication was caused without his consent by the
   malicious or negligent act of another person; or

   
   

2. the
   person charged was by reason of intoxication insane, temporarily or
   otherwise, at the time of such act or omission.

   
   

2. Where
   the defence under the preceding sub-section is established, then in
   a case falling under paragraph (a) thereof the accused
   person shall
   be discharged, and in a case falling under paragraph (b) the
   provisions of sub-section

   
   

3. of
   section one hundred and sixty-nine of the Criminal Procedure and
   Evidence Proclamation (1) shall apply.

   
   

4. Intoxication
   shall be taken into account for the purpose of determining whether
   the person charged had formed any intention,
   specific or otherwise,
   in the absence of which he would not be guilty of the particular
   offence charged".

   
   

I shall
now give a summary of the evidence of all the Crown witnesses with a
view to determining whether the accused was so drunk
that he did not
know that what he was doing was wrong or that he did not know what he
was doing. The first Crown witness is 'Matatolo
Koto. She testified
that on the day in question she had brewed Sesotho beer and was
selling it to other villagers. The accused
arrived at her place
during the morning hours and bought a lot of beer and drank it. At
about midday the deceased and Thoaneng
Nketsi (P.W.3) arrived. They
also bought some beer and drank it, sharing it with the accused. At
one stage 'Matatolo was in her
house

3

her house
while the three men, i.e. the accused, the deceased and Thoaneng,
were drinking beer outside. 'Matatolo heard that the
deceased was
angrily protesting that no person was entitled to insult him. She
went to them and pleaded with the deceased not to
fight but to take
the accused to a court of law. Immediately after that the deceased
entered into the house and bought more beer
for himself. A short
while after the deceased had come into the house, the accused
followed. The deceased was apparently still
very unhappy about the
insult to him by the accused and continued his protest until the son
of 'Matatolo, one Hlalefang who has
not given evidence, ordered the
men to leave his home. The deceased and Thoaneng left immediately;
the accused remained in the
house.

'Matatolo
further told the Court that, noticing that the accused was drunk, whe
suggested that Hlalefang should accompany him (accused)
to his home.
It was at about 6.00 p.m. At about 9.00 p.m. she and Hlalefang were
in the house when they heard someone scream. She
came out of the
house and went to the deceased's house from where the scream came.
When she arrived there she saw the deceased
seated down and propped
with pillows. There was a pool of blood where he sat. He was bandaged
with a cloth on the navel. Because
of the bandage she was unable to
see the injury. The deceased died a short time after her arrival. On
the question of drunkenness
of the accused and the deceased,
'Matatolo said that the accused bought "a lot of beer" and
that when they left her house
they were "moderately drunk"
but "they could still reason". When the accused was at her
place he was not armed
with any weapon; the deceased was armed with a
stick.

Thoaneng
Nketsi (P.W.3) deposed that he, the accused and the deceased had been
drinking beer at the home of 'Matatolo when the deceased
started
objecting very strongly to the fact that the accused had insulted
him. He (deceased) was very angry when he made the

4

objection
but soon cooled down. Later when the quarrel started again 'Matatolo
expelled them from her house. He and the deceased
went to the
latter's house. The wife of the deceased was already in bed. They had
not been in the house for a long time when the
accused arrived at the
door and called them saying, "Thoaneng and Ntai come out so that
I kill you, vaginas of your mothers."
The accused then poked the
door with the spear and ordered them to come out so that he could
kill them. The deceased became worried
that the accused was going to
set the house on fire and decided that the door should be opened.
Despite strong opposition from
his wife and Thoaneng, the deceased
insisted that the door be opened. When he opened the door the wife of
the deceased, 'Mamahlape
Matsoso (B.W.4), was first to come out. The
accused ordered her to get aside because he wanted Thoaneng and the
deceased. Thoaneng
says that as soon as the deceased tried to get out
the accused stabbed him with a whitish (brightish) object. The
deceased fell
on his back. The accused ran away. The deceased had
been stabbed on the navel and some bowels were protruding from the
wound. He
died a short while after the stabbing.

Thoaneng
demonstrated how the blow was delivered and it was clear from his
demonstration that the thrust of the spear was slightly
more from a
vertical angle that a horizontal one. The doctor was not of any
assistance on this point because he pointed out that
bowels move all
the time so it is impossible to fix their exact position when the
stabbing took place. Thoaneng claims that they
were not drunk when
they left 'Matatolo's house because the beer was not good because it
lacked the intoxicating properties (kick).

The wife
of the deceased confirms the evidence of Thoaneng on all material
respects but she did not see when the accused stabbed
her husband.
When she came out of her house, the accused ordered her to get out of
the way as he wanted the deceased and Thoaneng.
At that time she was
screaming and apparently moved away from the door.

However,

5

before
she moved farther from the door she had seen that the accused was
holding two things that looked like sticks. She returned
to the door
when Thoaneng called her and told her that her husband had been
stabbed. She also formed the opinion that her husband
and Thoaneng
were not drunk when they arrived at her place.

D/Trp.
Seboka (P.W.6) deposed that on the 10th October, 1984 the accused
gave himself up to the police and gave him the spear before
Court
(Exhibit 1). He also made an explanation about the spear.

At the
end of the Crown Mr. Matlhare again tendered a plea of guilty to
culpable homicide. For the reasons that will appear in the
course of
this judgment 1 rejected the plea. The defence then decided to close
their case without leading any evidence.

It is
clear that there is a conflict in the Crown evidence as to whether
the accused, the deceased and Thoaneng were drunk when
they left the
home of 'Matatolo. Thoaneng and the wife of the deceased say that
they were not drunk; on the other hand 'Matatolo
says that they were
"moderately drunk". I agree with 'Matatolo that these
people must have been drunk, more especially
the accused who had been
drinking beer for almost the whole day. It is well known that
witnesses often deny that they were drunk
when they witnessed a crime
being committed. It is, therefore, not surprising that Thoaneng
denies that he was drunk.

Now what
I have to consider is whether the accused was so intoxicated that he
was incapable of forming the "specific intent"
required in
a charge of murder. As the accused has not given any evidence as to
his state of mind when he committed the offence,
we shall rely on the
observations of other people who saw him before and during the time
he committed the offence and on also what
he did and said at the
relevant time. 'Matatolo told the Court that the accused was
moderately drunk and was still capable of reasoning.
It was never
suggested by the defence that 'Matatolo has any bias or grudge
against

6

the
accused and she gave me the impression that she wanted to tell the
truth about the extent of the accused's intoxication. Her
evidence
is, to some degree, corroborated by objective factors. Firstly, the
accused was unarmed when he left her place. He went
to his place and
armed himself with a spear and, possibly, a stick. Secondly, he was
able to walk in the dark from his home to
the home of the deceased.
Thirdly, when he came to the house of the deceased, he was able to
see very well that the person who
came out first was not the deceased
nor Thoaneng. As soon as the deceased appeared at the doorway he
accurately aimed at his target
and stabbed him on the navel.
Fourthly, immediately after stabbing the deceased he ran away because
he knew what he was doing and
that what he had done was wrong.
Fifthly, when he came to the house of the deceased he invited
Thoaneng and the deceased to come
out so that he could kill them. He
did exactly that when the deceased came out.

The above
factors prove beyond reasonable doubt that the accused had the
capacity to form the intention to kill and did,in fact,
have actual
intention to kill the deceased. In other words, I am satisfied that
this is a case of dolus directus in which the accused
committed the
actus reus meaning to kill the deceased and in which his will was
directed to compassing the death of the deceased
(S. v. Singwahla,
1967 (4) S.A. 566 (A.D.) at 570G).

For the
reasons stated above I formed the opinion that the Crown had proved
beyond a reasonable doubt that the accused intentionally
killed the
deceased. I accordingly find him guilty of murder.

J-L.
KHEOLA

11th
November, 1985.

My
assessors agree with me.

7

Finding
on Extenuating Circumstances.

I have
already held that the accused was moderately drunk when he committed
the offence charged. The law regarding intoxication
as a miligating
factor was comprehensively and authoritatively set out by Holmes J.A.
in the case of S. v. Ndhlovu (2) 1965 (4)
S.A. 692 (A.D.) at p.p.
695C-E, 696A-B in the following words:

"Intoxication is one of humanity's age-old frailties, which may,
depending on the circumstances, reduce the moral blameworthiness
of a
crime, and may even evoke a touch of compassion through the
perceptive understanding that man, seeking solace or pleasure
in
liquor, may easily over-indulge and thereby do the things which sober
he would not do. On the other hand intoxication may, again
depending
on the circumstances, aggravate the aspect of blameworthiness...as,
for example, when a man deliberately fortifies himself
with liquor to
enable him insensitively to carry out a fell design. In the result,
in seeking a basic principle in regard to intoxication
and
exte­nuation in murder cases, it is neither necessary nor
desirable to say more than that the court has a discretion, to
be
exercised judicially upon a consideration of the facts of each case,
and in essence one is weighing the frailties of the individual
with
the evil of his deed....

"To my knowledge it has long been well recognised in Natal, both
in the Supreme Court and in the former Native High Court,
that in
murder cases intoxication may, depending on the facts, be taken into
account as an extenuating circumstances warranting
a lesser sentence
than that of death. My Colleagues inform me that this is also the
case in other Provinces. Were it otherwise
in this country, with most
of it introduced to civilisation only last century, the grisly toll
of the gallows would mount to awesome
proportions."

In the
present case there was not a santella of evidence that the accused
drank beer in order to give himself dutch courage. There
was evidence
that he and the deceased were friends and were often seen going about
together. I am convinced that this is not a
case where intoxication
should aggravate the guilt of the accused. It is a case in which it
has to

8

be
regarded as a mitigating factor. I therefore find that there are
extenuating circumstances.

Sentence:-

Eleven (11) years' imprisonment.

J.L.
KHEOLA

JUDGE .

11th
November, 1985.

For Crown
: Mr. Lenono

For
Defence : Mr. Matlhare

CIV/APN/217/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

BANYANE
ERNEST THAELE Appellant

V

RAYMOND
MOTHEPU 1st Respondent

PHOSO
MOKETA 2nd Respondent

BENEDICT
MOTHIBE 3rd Respondent

PAUL
LETLALA

MABATHOANA
4th Respondent

CHIEF
ELECTORAL

OFFICER
5th Respondent

ATTORNEY
GENERAL 6th Respondent

THE HON.
THE PRIME

MINISTER
7th Respondent

THE
SPEAKER OF THE

NATIONAL
ASSEMBLY 8th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 6th November, 1985.

This
matter concerns the recent election of the first four Respondents in
this application as members of the National Assembly of
Lesotho for
Maseru North, Maseru Central, Maseru South and Maseru East
respectively.

The
constituencies which these four now represent are four of the sixty
constituencies into which Lesotho is divided, with the boundaries

prescribed by the Constituency Delimitation Commission appointed in
terms of section 16 of the Parliament Act 1983 (The Act).

This
commission, consisting of two Puisne Judges of this Court, under the
chairmanship of the Chief Justice,

2

recently
reviewed the boundaries of the sixty constituencies and, presumably,
having regard to the lengthy lapse of time since the
last
delimitation, and inevitable increase in population and change in
population centres, ordered the alteration of the boundaries
of some
or all of these constituencies in accordance with the Provisions of
section 17 of the Act. I speak only of a probability
in the latter
regard since I have no information placed before me as to the exact
boundaries of the new constituencies as compared
with the old
constituencies which they replaced. But I must assume that some
changes of boundaries were ordered by the commission
or I would
otherwise be ignoring what must be a very real possibility if not a
probability in this matter.

Section
17(4) of the Act provides that :

"(4) Any Order made by the Commission under this

section shall be published in the gazette and shall come into effect
upon the next dissolution of Parliament after it is made."

The order
made by the Delimitation Commission was published on the 18th June
1985 by Legal Notice No. 64 of 1985. The Interim National
Assembly
which had been established in terms of Lesotho Order 1973 had been
dissolved with effect from 1st January 1985 by Legal
Notice 132 of
1984 published on 24th December 1984, so that as at 18th June 1985
there was no National Assembly in existence. It
is applicant's
contention that on a proper interpretation of section 17(4)of the Act
and notwithstanding its recent amendment by
Act 1 of 1985, the order
of the Delimitation Commission is not yet of effect, and that since
the first four Respondents

3

were
elected as members for constituencies defined by the new
delimitation, and which presumably are different from the old
delimitation,
their election was invalid and should be set aside by
this Court.

Applicant
expresses his intention to present an election petition to set aside
the election of these four Respondents, even though
their election
was not opposed, on the grounds that their election was as members
for non-existing constituencies having regard
to the provisions of
section 17(4) of the Act.

Section
64(1) of the Electoral Act 23 of 1968

provides
that an election petition complaining of an undue election or an
undue return of a person as a member of the National Assembly
for any
constituency by reason of want of qualification, disqualification,
corrupt or illegal practice, irregularity, or by reason
of any other
issue whatsoever, may be presented in the Court within one month of
the declaration of the election of the said person
as a member of the
National Assembly for the constituency concerned or within such
extended time as the Court may allow.

Subsection
(2) provides further that the election of a person as a member of the
National Assembly shall not be questioned except
on an election
petition.

The locus
standi of the applicant is not in issue in this matter and the sole
argument of Counsel for the Respondents against the
grant of any
extension of time is that on a proper interpretation of section 17(4)
of the Act the new delimitation was of force
at the time of

4

the
recent election and of the declaration on 14th August 1985 of the
four Respondents as the duly elected members for their
constituencies.

It is
also contended by these four Respondents that the Parliament
(Amendment) Act No. 1 of 1985 has effectively validated the order
of
the Delimitation Commission.

As to the
last contention, the Respondents assert that this validating act was
enacted by a National Assembly whose elected members
represent the
new constituencies whose boundaries were defined by that Delimitation
Commission. It is applicant's contention that
this National Assembly
has thus given life to itself by passing an act which only a duly
constituted National Assembly can do and
which it is not.

The Prime
Minister had directed by Legal Notice No. 31 of 1985 that there shall
be a general registration of electors in the sixty
constituencies as
delimited by the 1960 Delimitation Commission, but he further
directed that such registration would be without
prejudice to a
consequent order of the Delimitation Commission. I take it that the
word 'consequent' should be read to mean 'subsequent'
but in any
event it is applicant's contention that the Prime Minister had no
power to make such an order which was ultra vires
section 9 of the
Electoral Act.

There is
no real quarrel between the parties as to the validity or cogency of
applicants' reasons for his failure to bring an election
petition or
petitions (since

5

there are
four constituencies involved) within the prescribed period of one
month. He ascribes it to the necessity to consult with
and retain the
services of senior counsel who was not readily available for this
purpose.

I
certainly have a discretion, if only a limited descretion, in the
matter, as clearly appears from the words "or within such

extended time as the Court may allow" of section 64 of the
Electoral Act.

It will
be readily seen from this recital of the issues between the parties
that none of them can be said to be plainly right or
wrong.

A further
issue may arise out of the interpretation of section 64(b) of the
Electoral Act which may or may not resolve the question
of the
validity of Act 1 of 1985 and which was not argued before me. Nor
indeed was there any canvassing of the differences in
the two
delimitations which might possibly affect the alleged illegitimacy of
the current delimitation, nor was there any debate
on the question
whether the 20 nominated members would, having regard to section
23(2) of the Act, constitute a sufficient quorum
to properly enact
Act 1 of 1985 if they were all present and voted affirmatively on the
bill, or indeed whether in common law or
in the fact of the
certificate of the Speaker of the Assembly under section 29 of the
Act, it is assailable at all in this Court.

It seems
to me that these are questions of fact and law and a mixture of both,
and all of great constitutional

6

importance,
which are more properly cognisable by this Court on the presentation
of the election petitions themselves and not at
this early stage
where an extension of time only is sought for such presentation.

I am also
inclined to the view that the discretion given to the Court by
section 64 of the Electoral Act is a discretion extending
only to the
reasons for non-compliance within the period allowed for presentation
and not to the validity of the petition itself
whether on questions
of law or fact. I incline to the view that the latter question is one
for determination only by the Court
hearing the petitions and that
this application should be granted. As to the question of costs, I do
not wish to say at this stage
that the Respondents were unreasonable
in their opposition to this application nor indeed can I say so,
having regard to the very
difficult questions of law and fact that
arise. I therefore order that the applicant be allowed to present his
election petition
or petitions in this matter to this Court by not
later than 15th December, 1985 being a date suggested by applicant
and not queried
by Respondents and that the costs of this application
be costs in the cause of those petitions.

D.S. LEVY

ACTING
JUDGE.

6th
November, 1985.

For
Applicant : Mr. Bregman

For
Respondents : Mr. Tampi.