CRI/T/12/90

IN THE HIGH COURT OF LESOTHO

In the Matter of :

REX

vs

CLEMENT KORI

J U D G M E N T

Delivered by the Hon. Mr. Justice B.K. Molai on the
15th day of October,1990.

The accused is charged with the crime of murder on the
following allegations:

"In that on or about the 5th day of May, 1987 and
at or near Koro-Koro In the district of Maseru the said accused did
unlawfully
and intentionally kill Khauta Patrick Mothibe."

When the charge was put to him the accused pleaded not
guilty. Mr. Nathane who represents the accused in this case
told the court that the plea of not guilty, tendered by the accused,
was in accordance with
his instructions. The plea of not guilty was
accordingly entered.

It may be mentioned from the word go that by agreement
of both Mr. Nathane and Mr. Thetsane. counsel for the
crown, the post-mortem examination report per­formed on the body
of the deceased was handed in from the

2/ bar as .

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bar as Exh. A. The medical Doctor who had conducted the
post-mortem examination was accordingly not called to tes­tify in
this
trial.

The court heard the evidence of P.W.5, D/Tper
Ramakeoane, who testified that on the day in question, 5th May, 1987
he received a certain
report following which he proceeded to the
fields at Koro-Koro. He found the dead body of the deceased and many
people already gathered
there. He examined the body of the deceased
for injuries and found that it had sustained multiple stab wounds on
the head, chest,
back and all over the body. He counted altogether 21
stab wounds. He conveyed the body of the deceased in a police vehicle
to the
mortuary in Maseru and assured the court that it sustained no
additional injuries whilst it was being transported from Koro-Koro
to
the mortuary.

According to Exh A, the post-mortem examination report,
the body of the deceased was examined by a Medical Doctor on 6th May,
1987
at Queen Elizabeth II hospital. The external examination
revealed multiple stab wounds on the back, chest skulp and lips. The
Medical
Doctor confirmed that there was a total of 21 stab wounds.

On opening the body it was found that there was a
laceration of the (L) ventricle, resulting in haemo-pericardium. On
these facts
the Medical Doctor formed the opinion that death was due
to haemopericardium as a result of a stab on the heart.

3/ I am prepared.......

-3-

I am prepared to accept the undisputed medical evidence
that the deceased died as a result of the injuries found on his body.
The
important question, in this regard, is whether or not the accused
is the person who inflicted the injuries on the deceased, and,
therefore brought about his death.

In his evidence P.W.1 told the court that on the
afternoon of 5th May, 1987 he was working in his field. There was a
time when ha
went to releave nature in a donga. As he was going to
the donga P.W.1 noticed the accused, who had been looking after a
horse next
to deceased's field, walking on the boundary of his
(P.W.1's) field. He was being followed by the deceased. Shortly after
ha had
noticed the accused and the deceased following other on the
boundary of his field, P.W.I heard a voice saying :"What have I
taken?" The voice came from the direction of the accused and the
deceased. He could not, however; recognise whose voice it was
between
the accused and the deceased.

When he looked in the direction of the accused and the
deceased P.W.I noticed that the two men were engaged in a physical
struggle.
The accused who was also wielding a knife threw the
deceased to the ground and started delivering several blows at him
with the knife.
P.W.1.

immediately rushed to where the accused and the deceased
were fighting. On arrival he found the accused on top of the deceased
and
stabbing him all over the body with the knife. He pleaded with
him to leave the deceased alone as he had already finished

4/ him.

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him. The accused, however, left the deceased and
attacked him (P.W.1) with the knife. P.W.1 ran away. The accused
chased after him
for a short distance before returning to where the
deceased was lying prostrate on the ground and continued stabbing
him.

According to him, P.W.1 then went to raise an alarm as a
result of which many people came to the scene. As he and the other
people
were going to where the deceased had been assaulted by the
accused P.W.1 noticed the latter disappearing into a nearby poplar
tree
plantation. On arrival to him he found the deceased already
dying. The police were sent for and eventually came to the scene of
crime.

In as far as it is relevant, the evidence of P.W.1 was
corroborated by that of P.W.2, 'Ma-Isaac Mothibe, who told the court
that she
was, on the day in question, one of the people working in
the fields. Following the alarm raised by P.W.1 she did not, however,
actually
go to the spot where the accused had been assaulting the
deceased. The reason for that was because none of the people who came
to
where the deceased was, appeared to assist him up. She assumed,
therefore, that the accused had left the deceased dead.

The evidence of P.W.3, Makoae Mothibe, is to the effect
that he is the headman in the village of the accused and the
deceased. The
accused is therefore, his subject and so was the
deceased who was, in fact, his

5/ own brother

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own brother. In April, 1987 he had confronted the
accused and the deceased over a complaint made by the latter that the
former was
damaging his maize in the field. On 5th May, 1987 he came
down to Maseru. On his return home, from Maseru, he received a
certain
report following which he proceeded to the fields where he
found the dead body of the deceased. It had bleeding injuries. Many
people
had already gathered there. He returned to Maseru in­tending
to find a vehicle with which to convey the body of the deceased
to
the mortuary. Before he could reach Maseru, P.W.3, however, found a
vehicle at the village of Ha Phohleli. He returned to the
scene of
crime where he was, however, advised not to remove the dead body
before the police had arrived.

P.W.3 then went to Maseru and reported what had happened
to the police who immediately proceeded to the scene of crime. He
confirmed
the evidence of P.W.5 that the body of the deceased was
examined for injuries before it was transported to the mortuary.
P.W.3 did
not, however, accompany the body to the mortuary.

On 6th May, 1987 he went to the deceased field next to
where his dead body was found. He noticed that fire had been made
next to a
willow tree outside the deceased's field. The tree got
burned and the fire was still smouldering. He also found two maize
cobs next
to the spot where the fire had been made. The maize cobs
had not yet been roasted.

6/ In his ......

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In his testimony P.W.4, D/Tper Kharafu, told the court
that on 6th May, 1987 he was stationed here in Maseru when the
accused surrendered
himself and handed over a knife. Following an
explanation which he made to, him P.W.4 cautioned and charged the
accused with the
murder of the deceased. He took possession of the
accused's knife and it had since been in the custody of the police.

It is significant that the accused gave no evidence in
this trial. Considering the evidence adduced by the crown there can
be no doubt
that the accused was seen by P.W.1 and P.W.2 brutally
assaulting the deceased at the very spot where his dead body was
later found.
That being so, the answer to the question I have earlier
posted viz.whether or not the accused is the person who inflicted the
injuries
on the deceased and, therefore, brought about his death must
be in the

affirmative.

It has been argued that as he suspected the accused to
be damaging his maize in the field the deceased was the one who
unlawfully
attacked the accused and the latter acted in self-defence.
No evidence was, however, given in support of the accused's defence
of
self-defence. Even assuming, for the sake of argument, that the
deceased was the first agressor, there is simply overwhelming
evidence
that the accused continued stabbing the deceased who had
already fallen to the ground and was therefore, posing no danger, at
all,
to the accused's life. That

7/ being so ..

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being so, it must be accepted that the accused exceeded
the bounds of self-defence which cannot, in my view, avail him.

Although under cross-examination P.W.1, 2 and 3 assured
the court that the accused was not a mentally deranged person, Mr.
Nathane,
counsel for the defence, informed the court that during his
interview with the accused he got the suspicion that he sufferred
from
a mental illness of some sort. I must say I observed the accused
as he sat in the dock during his trial. He appeared to be normal.
However, neither me nor the witnesses who testified in support of the
crown case are experts in the field of mental diceases. In
the light
of the information given by the defence counsel coupled with the
ruthless manner in which the accused

assaulted the deceased there was, in my view, a
possibility that the accused might be suffering from a mental
disorder. I considered
it safe, therefore, that the accused should be
referred for observation by a psychiatrist who was called to testify
on behalf of
the defence.

D.W.1, Dr. Mohapeloa, told the court that he was the
psychiatrist who examined the accused. His findings were that the
accused sufferred
from what is called arrested mental development or
retardation as a result of trauma (birth injury). Although in his
evidence in
chief the Doctor said he would not regard the accused

8/ as insane

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as insane person, he told the court, under
cross-examination, that insanity and mental retardation were
synonimous and the latter
was another form of insanity. He would say
at the time he committed the offence the accused was mentally
retarded but neverthless
able to appreciate what he was doing.

With due respect to the learned doctor, I am unable to
follow the logic of his evidence. Assuming the correctness of his
evidence,
under cross-examination, that insanity and mental
retardation are synonimous and the latter is another form of insanity
it seems
to me a non sequitur for the Doctor to say, in
evidence in chief, he would not regard the accused as insane person.

One thing the Doctor was positive of was that since
birth the accused had been suffering from arrested or incomplete
development of
mind. In terms of the pro visions of S.2 of the Mental
Health Law 1964. that is a mental incapacity or abnormality. From
the Doctor's evidence that insanity and mental retardation or
incomplete development
of mind are synonimous and the latter is a
form of insanity it necessarily follows that the accused who has been
suffering from mental
retardation or incomplete development of mind
(a form of insanity) from birth was, at the commission of the
offence, insane or mentally
incapacitated.

I would find the accused guilty as charged but insane in
accordance with the provisions of subsection

(3) of S. 172 of the Criminal Procedure and Evidence
Act,

1981.

9/
It is ordered

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It is ordered that the accused shall be kept in custody
at the Central Prison in Maseru pending the signification of Her
Majesty's
pleasure.

Both assessors agree.

B.K. MOLAI
JUDGE

15th October, 1990.

For Crown : Mr. Thetsane
For Defence : Mr.
Nathane.