CRI/T/39/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

V

TEFO
BUSAKA SETLHOTLELO

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 6th day of September, 1985.

The
accused appeared before me charged with the murder of Moleboheng
Setlhotlelo on the allegations that on or about the 26th day
of
February, 1984 and at or near Makanyaneng in the district of
Thaba-Tseka he unlawfully and intentionally killed the deceased

It may be
mentioned from the word go that after reading the Preparatory
Examination record I was not sure about the mental state
of the
accused It became necessary therefore that the question of his sanity
should be investigated before the accused could be
asked to plead to
the charge. For that reason the Provisions of S 166(1) of the
Criminal Procedure and Evidence Act 1981 were invoked
Dr Mohapeloa,
the Senior Medical Officer of Mental Health, was called as a witness
and in his evidence told the Court that following
his examination of
the accused he was of the opinion that "the accused is rational
and fit to plead". Consequently the
accused was allowed to plead
to the

2

charge
when he tendered a plea of not guilty.

In his
evidence Dr. Mohapeloa further stated that as to the state of
accused's mental health at the time he allegedly committed
the
offence against which he stands charged he felt not competent to give
an opinion unless he could be afforded about 2 weeks
during which to
study the proceedings of the Preparatory Examination and possibly
interview some of accused's close relatives.
I afforded him that
opportunity I shall return to Dr. Mohapeloa's evidence later in the
judgment.

The
depositions of all the deponents who appeared and testified at the
Preparatory Examination were admitted by Mr. Maema, counsel
for the
defence. Mr SEHOLOHOLO for the Crown accepted the admissions and in
terms of the provisions of S. 273(1) of the Criminal
Procedure and
Evidence Act 1981 the depositions became evidence. It was, therefore,
unnecessary to call the deponents as witnesses
in this trial

Very
briefly the facts disclosed by the evidence were that on 24th
February, 1984, the accused arrived home in the early hours of
the
morning. He was from a place called Linakaneng where he had been
working. On his arrival at home the accused went to the house
in
which one of his sons P.W 1, Mohau Setlhotlelo, was sleeping He was
completely naked and carrying a saw. After he had been given
a pair
of trousers and boots to put on, the accused instructed P.W 1 to go
and fetch his clothes from the home of one Makae at
Linakaneng.

On his
way to Linakaneng P.W.1 met Makae and one Rantima both of whom were,
however, not called as witnesses

3

They were
also looking for the accused. P.W.1 returned with them to Makae's
home at Linakaneng from where he collected accused's
clothes and
brought them to him at home.

The
accused then told P.W.1 that he was a prophet and that they should go
to Chief Setlokoane who would write him a letter in that
regard. On
their way to the chief's place, the accused started screaming and
wielding his saw When P.W.1 asked him what the matter
was, the
accused told him that he should not ask him questions when he was in
that state. They eventually came to Chief Setlokoane
and chieftainess
'Maabia who were also not called as witnesses According to P.W.1
after he had claimed to be a prophet and demanded
a letter in that
regard the accused was referred to the Local Administrative Office
(L.A.O.) of the District. They then left but
instead of going to the
L.A 0 the accused and P.W 1 went to the home of accused's wife where
they found P W 1's younger brother,
Pusetso. They spent the night
there.

Early in
the morning of 25th February, 1984 the accused sent for his wife who
came with members of her church (Sion) The accused
then started
singing and praying after which they returned home. On Sunday (26th
February 1984) accused took the young Pusetso
and the deceased, his
granddaughter who was also a small child and left home. P W.1
followed them.

As the
accused was- insulting everybody and wielding his saw, P.W 1 got the
impression that he had gone mad He asked help from people
of Ha
Nkutoane to get hold of

4

the
accused but nobody came to his assistance. P.W 1 then decided to
return to Chief Setlokoane, presumably to report the incident.

When he
return home later that day P.W.1 found that the deceased was already
at the local clinic. She had sustained an open wound
on the head but
still alive. He arranged for a vehicle in which to convey the
deceased home. The deceased, however, passed away
on the way. P W.1
again returned to Chief Setlokoane and reported what had happened. He
was one of those who accompanied the body
of the deceased to
Mantsonyane hospital where he later identified it before the Medical
doctor who performed the post-mortem examination.

P.W 7,
Peko Tsolo, testified that one day in February, 1984 he was on his
way to the village of Ha Nkutoane when he met the accused
who was his
brother-in-law. The accused was going with two young children,
Pusetso and the deceased As he was going on horseback,
the accused
asked him to help him and carry the deceased on his horse. He
obliged. When they approached the village the accused
then said

"My child, Pusetso, it was said I was mad at Linakaneng where I
was building, and that I went about naked at night and opening
houses
of some people, now I am undressing."

The
accused then undressed, rolled his clothes together and left them in
the road. He walked towards some people wilding his saw
and those
people ran away. P.W 7 handed the deceased to Pusetso and told him to
go and hide the child.

According
to him P.W.7 then saw the accused assaulting P.W 2 Tsokolo Liphenene
with his saw. This

5

was
confirmed by P W 2 himself who also told the Court that the accused
was completely naked as he attacked him on the leg with
a saw. Both P
W.7 and P.W.2 said the accused then ran to a nearby shop where he
smashed the windows with his saw When the accused
returned to P W.2
who was by then unable to walk, a man shouted to P W 2 to run away
The accused then left P W.2 and turned towards
that man. The man
picked up a stone which he threw at the accused who then returned to
his children

The evidence of P.W.2 and P W.7 that the accused broke the windows of
the shop was confirmed by that of P W 6, Abia Motenalapi,
who told
the court that on the day in question he heard someone calling out
that the accused was breaking the windows of his (P
W 6's} shop He
went out of his house and found that shop windows were smashed. He
noticed the accused next to the shop and was
completely naked. The
accused was talking to himself and saying "A man came from
Heaven naked and will return there still
naked."

When he
noticed P W.6 the accused left and went to his children He carried
the deceased on his neck and walked away They took the
direction
towards Linakeng ha Mphosi. After the accused and his children had
disappeared out of view, P W 6 became worried and
decided to follow
them Shortly thereafter both P W 6 and P W.7 heard accused's son,
Pusetso screaming aloud. When P W.6, P.W 7
and other villagers rushed
in the direction from where the scream came, they met Pusetso who was
carrying the deceased. The accused
was running away from the children

P W 6 and
P W 7 testified that on coming to Pusetso they noticed that the
deceased had sustained a terrible

6

wound
right across the head. P.W.6 and other villagers rushed the deceased
to the clinic. On arrival at the clinic the deceased
was still alive
although she appeared tired and weak. She was handed to the clinic
nurse who was, however, not called as a witness.
Later on that day
P.W.6 and P.W 7 learned that the deceased had passed away.

P.W.3,
Mookho Sefompha, testified that on the night of the day in question
she was sleeping with her children when she' heard someone
trying to
open the door of her house She asked who it was and heard the voice
of the accused, who lived in the same village as
she did, saying
"light, I am here!" She told the accused that she had no
matches. The accused replied that he had matches
and wanted to burn
down the house.

Shortly thereafter, P.W,3 heard the alarm from the direction of the
home of P.W.4, Thabo Mahao, in the village She got out of her
house
and noticed that P.W.4's house was in flames. The accused was,
however, nowhere to be seen. It was only later on that the
accused
arrived. He was naked and shouting "I made fire for the chief's
children, I will go and make yet another fire "

P.W 4's
house was burned down together with all the property in it. This was
confirmed by P.W 4 himself who told the court that
on that day he had
gone to Mashai, to obtain medicine for his ninety years old mother.
On his return home he found his house burned
down. He sent for the
police who later came and arrested the accused.

7

P.W.5,
D/Tpr Letsoepa confirmed that as a result of a report he proceeded to
accused's home. He went to the local clinic where he
found the dead
body of the deceased. On examining it he noticed a deep open wound on
the head. He also went to P.W 4's home where
he found his house
burned down. The accused together with his saw were handed to him. He
cautioned and charged the accused He took
possession of the saw which
he handed in as exhibit 1 and part of his evidence at the Preparatory
Examination. He also conveyed
the body of the deceased to the
hospital at Mantsonyane and it sustained no additional injuries

The
medical doctor who performed the postmortem examination on the body
of the deceased left the country and returned to his home
in Canada
before the Preparatory Examination could be held. He was, therefore,
not available to give evidence at the Preparatory
Examination His
post mortem examination was, however, handed in evidence in terms of
the provisions of S 223 of the Criminal Procedure
and Evidence Act
1981.

The gist
of the medical evidence was that on examining the body of the
deceased the doctor found a 12 cm long cut on the head as
a result of
which cut the skull was fractured The injury was consistant with the
use of a saw. He formed the opinion that death
was dueto the injury
on the head. No evidence was adduced by the Defence in the trial

Considering
the only available Crown evidence there no doubt, in my mind, that
the accused is the person who brutally assaulted
the deceased by
cutting her skull with a saw and thus inflicting upon her a very
serious injury The only difficulty as I see it,
is whether or not the
deceased died

8

as a
result of that injury

There is
evidence that after she had been injured the deceased was taken to a
nurse at the local clinic. She came to the clinic
still alive and was
still alive when she left. I do not think that the nurse simply
looked at the injury sustained by the deceased
and discharged her
without administering treatment of some kind. The question that
arises is what sort of treatment it was. Did
it or not precipitated
the death of the deceased7 Only the nurse who was on duty at the
clinic could have enlightened the Court
in that regard. She was not
however, called as a witness. That being so, the existence of
novusactus interveniens cannot,in my
view . be ruled out.

Although
there is ample evidence that the accused assaulted and inflicted a
fatal injury upon the deceased there must be a doubt
as to whether
the action of the accused was the direct cause of death and in our
law the benefit of that doubt is always given
to the accused person.
I have a doubt the benefit of which I give to the accused. That
reduces the offence committed by the accused
to a lesser offence than
murder, which lesser offence is in my view, attempted murder.

I shall
now return to Dr. Mohapeloa. As indicated earlier, Dr. Mohapeloa
wanted and was afforded the opportunity to carry further
examination
in order to determine the sanity of the accused person at the time of
the commission of the offence. After the admissions
of the
depositions taken at the Preparatory Examination were made and
accepted, Dr. Mohapeloa was called into the witness box.
He testified
that on the findings of his

9

further
examination he was of the opinion that at the material time the
accused suffered from a mental disease on account of which
he could
not have known what he was doing. I have no grounds on which to doubt
the correctness of his opinion

That
being so, I come to the conclusion that the provisions of S. 172(3)
(a) of the Criminal Procedure and Evidence Act, 1981 must
be invoked.
I therefore find that the accused is guilty of attempted murder but
was insane at the time he committed the offence.

In the
circumstances, we are enjoined by Paragraph (b) of sub-section (3) of
section 172 of the Criminal Procedure and Evidence
Act, above, to
order the detention of the accused in custody in some prison pending
the signification of His Majesty the King.
It is, therefore ordered
that pending the signification of the King's pleasure the accused be
detained in Maseru Central Prison.

My
assessors enterely agree with this decision

JUDGE

6th
September, 1985.

For the
Crown Mr. Seholoholo

For the
Defence Mr. Maema