CRI/T/37/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

KHOTSO
THABO PAMA

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice S. Peete on the 19th July, 1985.

The
accused, a 23 year old Mosotho man appeared before this Court on a
charge of murder of one Morero Senamolele on the 3rd May
1983 at
Matsoaing in the district of Leribe.

It
appears from the file, that on the 6th May, 1985, my brother Kheola
J. ordered that the accused be examined by a psychiatrist
as he
appeared mentally unwell and the psychiatrist was asked to make a
full report. This report was consequently made regarding
the
accused's mental condition and fitness to plead and to stand trial
and was handed in to the Court I presided over; and in
the opinion
of Dr. Mohapeloa, the accused had no mental illness but the doctor
reported that the accused was a person of "low-average

intelligence" and tended "to talk in a rambling and
sometimes irrelevant manner" - but that he was fit stand trial

and was not insane.

The
accused, legally represented by Mr. Matlhare, pleaded not guilty to
the indictment.

2

The Crown
called one Kereruoe Rantso who told the Court that on the 3rd day of
May 1983 he was in the company of the deceased and
as they were going
towards the village 3hop to buy some tobacco, the deceased who was
drunk on that day, met the accused and there
was an altercation with
the accused and apparently some insults were exchanged.

The next
witness was Tongoane Nkhasi, a local headman, who told the Court that
on that very same evening he encountered the accused
and deceased who
were still quarrelling. He heard the accused say " "Other
persons who are like yourself are usually
slaughtered like goats."
These were apparently addressed

to the
deceased. The headman says he expelled the two men and they parted.
He goes further to say

that on
the morning of the 4th May 1983 he saw a spoor which led him to a
dam. He also saw a black boot

belonging
to the deceased lying near a garden. At the dam, he says he found the
deceased lying face up in the water, he had wounds
on the forehead
and at]

the back
of the head. These was a belt tightly fastened around his neck. There
was a piercing wound behind the gullet or trachea.

The
police arrived soon afterwards and they picked up a blood-stained
splinter of a stick, and another boot belonging to the deceased.
The
accused was not in the village then but was subsequently arrested in
Butha-Buthe. He later pointed out the stick which was
hidden
somewhere near the village. This stick and the splinter fitted well.
When he was arrested, the accused was holding the timber
stick
belonging to the

deceased.

3

The
doctor, Dr. Merkens who conducted the post mortem examination had, at
the time of the trial, since left the country, and his
deposition
made at the time of the trial, since left the country, and his
deposition made at the preparatory examination was admitted
in terms
of section 227(1) (a) of the Criminal Procedure and Evidence Act of
1981. The Crown Counsel, Mr. Lenono, made an application
in terms of
the said section and led the evidence on oath of Mrs. Arabang
Maruping, Director of Health Services,

to show
that Dr. Merkens had since left for Holland after his contract of
service had ended; the court exercised its discretion
accordingly and
admitted the deposition as evidence and it was read into the record
(R. v. Mathapelo Moeti, 1974-75 LLR. 6). The
cause of death was
severe brain injury. The Crown then closed its case and the accused
also closed his case without giving evidence.

In the
present case, there is strong prima facie evidence which, however, is
circumstantial. There is no doubt that the accused
inflicted the
wounds which caused the death of the deceased. They were seen
quarrelling by about two witnesses one of whom even
heard when the
accused say "Other persons who are like yourself, are usually
slaughtered like goats." He was found holding
the stick
belonging to the deceased on being arrested. He pointed out a stick
that fitted well into the splinter found near the
scene of the crime.
The failure of the accused to give evidence indeed leaves this Court
in no doubt whatsoever that he is the
person who inflicted the fatal
injuries.

(S. v.
Theron.1968(4) S.A. 61).

4

The next
inquiry is whether the accused is guilty of the crime of murder or to
a lesser offence. The Court takes note of the fact
that the accused
was insulted by the deceased and being a person of low-average
intelligence, he probably took offence easily
and inflicted these
injuries. The nature of the injuries are indeed rather unusual
especially the bruising of the throat and the
tying of the belt
around the neck I am however not satisfied beyond doubt has the
necessary mens rea for murder was proved, I find
that the accused
knew what he was doing when he inflected these injuries, he was not
insane, but he is not endowed with ordinary
or normal faculties. I
find him guilty of culpable homicide.

SENTENCE

Three
years' imprisonment two years of

which are
suspended for three years on condition that that during the period of

suspension
the accused is not convicted of an offence involving violence to
person for which offence he is sentenced to an imprisonment
of six
(6) months or above without an option of a fine.

ACTING
JUDGE.

19th
July, 1985.

For the
crown : Mr. Seholoholo.

For the
defence : Mr. Matlharp.