CRI/T/68/88

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

REX and

KABELO RAPAPA

JUDGMENT

Delivered by the Honourable Mr. Justice, J.L. Kheola on
the 9th day of February, 1990.

The accused is charged with murder in that upon or about
the 19th day of December, 1987 and at or near Borokhoaneng in the
district
of Maseru, and at or near Queen Elizabeth II Hospital in the
district of Maseru, the accused unlawfully and intentionally killed
'Mathabo Rapapa {hereinafter called the deceased). The defence
tendered a plea of guilty of culpable homicide which was not accepted
by the Crown.

The defence admitted as evidence before this Court the
post-mortem examination report prepared by Dr. Oliver who formed

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the opinion that death was due to massive haemorrhage
due to multiple stab wounds on the chest and back. He found a 3cm
incised wound
on the right mid-axillary line, six stab wounds on the
left mid-axillary line, five different stab wounds at the back, four
different
stab wounds on the chest and a 5cm. incised wound in the
right palm. Internally he found that the right auricle and the
inferior
vena cava were perforated, the right lung had collapsed and
there was blood in the pleural cavity. The post­mortem
examination
report was marked Exhibit A.

The accused and the deceased were man and wife and were
staying at Borokhoaneng where 'Malebohang Tseko (P.W.3) was their
landlady.
Their house was about sixty yards from that of 'Maleboharg
On the 19th December, 1987 between the hours of 12.00 noon and 1.00
p.m.
'Malebohang was at her house with' Matieho Mokhethi (P.W.4

when her children reported to her that the accused was
assaulting the deceased. She went to accused's house and heard that
there was
a scuffle in the house and the deceased was crying. The
door was locked. She knocked very hard at the door and ordered the
accused
to open. He refused. She peeped through the window and saw
that the accused was stabbing the deceased all over the body with an
iron
rod sharpened on one end - Exhibit 1. She ordered him to stop
stabbing the deceased but he refused.

Finally 'Malebohang asked her children to call her
neighbour, 'Mampho 'Nyane (P.W.5). She came immediately and they both
shouted at
the accused pleading with him to stop stabbing the
deceased. After.

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a long time the accused opened the door and the deceased
came out crawling. Her face and body were covered with blood and she
was
unable to stand. They took her to 'Malebohang's vehicle and
carried her to Queen Elizabeth II Hospital. Before they left for the
hospital 'Malebohang advised the accused to go and report himself to
the police but he refused. Upon her return from the hospital
the
accused came to her house and tried to talk to her but she said she
did not want to talk to him and again ordered him to go and
report
himself to the police. He said he could not do so before he had
killed his wife.

'Malebohang said that she took the threat seriously but
thought that the deceased was safe in the hospital and that was the
reason
why she did not alert the hospital authorities or the police.
When the accused opened the door he appeared to be very angry ana
moved
around the vehicle still wanting to assault the deceased. She
says that she did not observe whether or not the accused was drunk
because he was already fighting when she saw him that day. On the
following day when she went to the hospital she found that the
deceased had died.

The evidence of 'Matieho Mokhethi is the same with that
of 'Malebohang. She worked for 'Malebohang as a domestic helper and
was present
when 'Malebohang and 'Mampho 'Nyane pleaded with the
accused to stop stabbing the deceased and to open the door. She says
that while
they were putting the deceased into the vehicle the
accused came to them and said that he wanted to finish her off.
'Malebohang said
he must kill both of them i.e. herself and the
deceased. The accused said he would finish her off at the hospital.

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She explained that she did not go to Upper Thamae;
police station to report the assault because the deceased was taken
to the hospital.

'Mampho 'Nyane confirms that she also went to the house
of the accused and found that the door was locked. About ten minutes
after
her arrival the accused opened the door and the deceased came
out crawling. As they were putting¹ the deceased into the
vehicle the accused came and said to the deceased: "I shall kill
you". The deceased was carried to
the hospital and was admitted.
Upon their return from the hospital she went to her home. Later that
afternoon the accused came to
the gate of her yard and called her.
She came out of her house and he asked her where the woman was. She
said they had left her at
the hospital. He asked if she was still
alive. Her answer was in the affirmative. He then asked when visitors
are allowed to see
their patients at the hospital. She said at
6.00p.m. Accused then said he wanted to go and finish her off.
'Mampho says that she
did not take accused's threat seriously and
regarded it as an empty threat despite the fact that the accused
appeared to be still
very angry.

Selloane Maepe (P.W.6) is a nurse stationed at Queen
Elizabeth II Hospital. On the 19th December, 1987 she was on duty in
Ward 2.
The deceased was admitted in her ward with multiple stab
wounds which had already been bandaged at casualty department She put
her
in bed and immediately went to the laboratory to get some blood
because she had lost a lot of blood. On her return from

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the laboratory the deceased reported to her that the
accused came during her absence and spoke to her in a manner she did
not like,
Selloane says that she asked for help from the security
department of the hospital. A security guard came but after some time
she
told him to go back to his work. A few minutes after the security
guard had returned to his post she saw a person rushing into her
ward. She again went to the security department but when she came
back with the security officer the person she had seen was no longer
there. The deceased was in a pool of blood on the floor and several
nurse6 were helping her. She was taken to the theatre but died
on the
following morning.

'Matseleng Moshesha (P.W.7) is a nursing sister at Queen
Elizabeth II Hospital. On the 19th December, 1987 she was on duty in
the
private ward when at about 5.30 p.m. she heard people screaming
inside the hospital. She and other nurses rushed in the direction
from where the screaming came . They met many patients in the
passage but eventually came to Cubicle A in Ware 2. They found the
deceased in a pool of blood on the floor. She examined the patient
and found that she had a big wound on the chest and a lot of blood
was coming out. She was carried to the theatre.

Mokhethi Mokhethi (P.W.8) is the security officer
referred to by Selloane. He confirms that she called her to Ward 2
but whan he arrived
she said that he must go back to his work. He
complied. After about thirty minutes the same nurse called him again.
He-proceeded
to Ward 2 but met patients in the passage. They were
crying. He ran to the gate near Blood Bank and found a soldier near
the gate
and calling a man who was standing on the other side of

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the road running between the hospital and Blood Bank, He
went to that man with the soldier and the man said he had not done
anything.
The soldier struck him on the head with a rifle but the man
still denied that he had stabbed any person. They asked him if he had
any knife. He said he did not have any knife and continued to deny
till they beat him up. When they came to the duty-room he still
denied having in his possession any knife. They again beat him up and
he then took out a knife -Exhibit 2 which was covered with
fresh
blood. That man was the accused. He was later handed over to the
police who took him to the casualty department where the wound
which
he sustained when the soldier struck him with a rifle was satured.
Exhibit 2 was given to the police.

Teboho Thujane (P.W.9) is the deceased's elder brother
and he identified her corpse to the doctor who performed a
post-mortem examination
upon it.

The evidence of Detective Trooper Ramakeoane is to the
effect that on the 22nd December, 1987 he went to the home of the
accused accompanied
by the accused. On their arrival there the
accused produced an iron rod (Exhibit 1) and gave it to him. There
was dry blood on the
floor and clothes were scattered all over the
floor.

Trooper Nono was called to the hospital on the 19th
December, 1987 and found the accused with many people inside the
hospital, He
looked wild and was forcing his way through those people
in an attempt to go where his wife was. Trooper Nono says that he was

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given a knife (Exhibit 2) by one of those people but he
does not know who that person was because he did not take his or her
particulars.
He denies that the accused had any wound on his head. He
arrested the accused and took him to the central charge office. On
the following
day he charged him with murder after he received a
report from the hospital that the deceased had died.

The evidence of Trooper Nono may be discarded without
any delay by showing that he is either a Her or a not very observant
person.
For him not to have seen the wound on the head of the accused
is unbelievable because he was covered with blood as well as his
shirt.
He did not take the particulars of the soldier and the man who
gave him Exhibit 2 nor the name of any of the patients who might have
seen what happened in Ward 2. In short he made a mess of the
investigation of this case. Detective Trooper Ramakeoane must be
equally
blamed because when the accused was handed over to him he
apparently made no attempt to find the soldier and a witness from
Ward
2.

The accused told the Court that he married the deceased
in 1983 and that they have one child who was born in 1985. The
deceased worked
at Maseru Cabanas Hotel and he worked for the
Highlands Water Project as a driver and his station was at Ficksburg.
He told the Court
that during the week prior to the 19th December,
1987 his wife never came home. Oh Monday, the 14th December, 1987 he
came home at
about 6.00p.m. and found that the

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deceased was not there. He went to a hotel and bought
liquor and food. He returned to his home at 10.00p.m. and found that
the deceased
was still not there. He slept in the truck because he
had no spare key. He woke up at 4.00a.m. and found that the deceased
had not
arrived. Before he went to work he bought a new lock and
changed the lock when he came home that evening. The deceased never
came
home for the whole of that week and he drank liquor very
excessively that week. He used to come home very late after 10.00p.m.

On Friday night he went to a bar and drank beer until
10.00 p.m. He then bought one big bottle of Gilbeys Gin and three
beers and
carried them to his home. He sat down alone and drank the
gin and the beers until 4.00a.m. when he slept. He woke up at
8.00a.m.
On the previous day he had made a telephone call to Maseru
Cabanas and he was told that the deceased still came to work as
usual.

When he woke up at 8.00a.m. on Saturday a certain Makau
or Matsau came and took him to town. He did not stay in town for a
long time
because he was feeling tired. He returned to his home but
one Samuel Makabane came and took him to Qoaling. He returned to his
home
and again drank several beers before going to Thamae's where he
continued to drink beer. From Thamae's they proceeded to Lower Seoli
but on their way they saw the deceased who appeared to be heading for
home. She got into a taxi going to town they followed it and
stopped
it. The deceased alighted only after the passangers had ordered her
to do so.

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The accused told the Court that on their arrival at
their home he asked the deceased where she had been for the whole
week. She simply
looked at him and did not answer him. He repeated
the question. She asked him why he was asking her that question., He
slapped her
because she had answered him in a rude manner. She fell
down and took Exhibit 1 and threw it at him and said he must leave .
her
alone because she no longer loved him. He took Exhibit 1 and
stabbed her with it but he dots not know how many times. He stopped
stabbing her when he noticed that her face was covered with blood. He
opened the door and found 'Malebohang and asked her to take
the
deceased to hospital. She agreed and conveyed her in her vehicle. He
denies that he-went near the vehicle and tried or threatened
to stab
the deceased again. However, he does not remember that 'Malebohang
advised him to go and report himself at the charge office,
nor does
he remember that he said he would go to the hospital and finish off
the deceased.

After his wife was taken to the hospital he decided to
go to the central charge office but on the way he met two people who
invited
him to a bar where he drank some beer but he does not know
the quantity. From there he went back to his home but ho does not
know
what he did there. He again left for the Central Charge Office.
He remembers that from the bus rank he walked along Kingsway Road
and
when he came opposite the National Libre a man carrying a rifle
called him. He stopped and when the man came to him he asked
him
where he was going to. He said to the charge office. He does not know
what happened after that but

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when he came to he noticed that he was lying on the
ground and had sustained a wound on the left side of his head. He was
escorted
to the hospital and searched. Exhibit 2 was found in the
pocket of his shirt and it was covered with blood from the wound he
had
sustained.

In cross-examination the accused told the Court that he
does not know that he went to the hospital and cannot deny the fact
that he
went there. He says that at their home he stabbed the
deceased because she had provoked him and he lost his power of self
control.
Before the present incident he had never had a quarrel with
his wife.

Mr. Matsao, attorney for the defence, conceded
that there was no dispute that the accused assaulted his wife at
Borokhoaneng on the 19th December,
1987. He submitted that because of
intoxication the accused had no direct intention to kill the
deceased. If the accused had direct
intention he could not
have-opened the door to allow the deceased to go to the hospital, He
argues that at worst it may be held that
the accused was reckless as
to what would be the consequences of his assault.

For the defence of intoxication to succeed the defence
must establish two very important points; namely, that 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. See section 2 of the Criminal
Liability of Intoxicated Persons Proclamation No,60 of 1938. The
accused remembers in great detail what he did from

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about 8.00a.m. when he woke up until he met the deceased
by chance at a bus stop. He took her to their home and remembers what
the
deceased said to him and what she did before he started to stab
her with Exhibit 1. I am of the opinion that he does not remember
how
many times he stabbed her with Exhibit 1 not because of intoxication
but because he stabbed her so many times that he could
not count. He
knew very well what he was doing because up to the time when he
started stabbing the deceased he was aware of what
was happening
around him. I do not agree with suggestion that he suddenly became
unaware of what he was doing.

I do not agree that the accused may not have formed
direct intention to kill the deceased because he opned the door to
allow her to
come out. After opening the door the accused told the
Crown witnesses that he would not go to the police to report himself
before
he had finished off the deceased. Mr. Matsau has
submitted that the evidence of the Crown witnesses on this point
should not be believed because they contradict each other. I
do not
think that there is any contradiction in their evidence concerning
the threat that he would finish off his wife. The these
women who
were carrying the deceased into the vehicle must have been in a state
of confusion and great fear because the accused was
there near the
vehicle or going around it uttering those threaten words. If there is
a minor contradiction in their evidence it Is
understandable under
the circumstances. They may not have heard same words because they
were busy carrying the deceased into the
vehicle while the accused
was moving about making the threat to kill his wife.

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The Crown witnesses have denied that after opening the
door he said the deceased should be taken to the hospital. I believe
their
story on this point because if the accused had intended that
the deceased should be taken to the hospitai he could not have made
the threat. 'Malebohang testified that he was moving around the
vehicle and wanting to stab the deceased again. She reprimanded him
and closed the door of the vehicle.

'Mampho 'Nyane testified that after they had returned
from the hospital the accused came to her place and asked her about
visiting
hours at the hospital and whether the deceased was still
alive. When she told him that she was still alive and that the
visiting
hour was 6.00p.m. he said he wanted to go and finish her
off.

It seems to me that the accused expressed his direct
intention to go to the hospital and to kill the deceased. Now the
question is
whether he did go to the hospital. It is not seriously
disputed that some person did go to the hospital and stabbed the
deceased
on the chest. The evidence of Selloane Maepe who is a nurse
at the hospital is that the deceaased told her that during her
(Selloaoe's)
absence the accused came to her and said things she did
not like. She) summoned the security guard as she feared that the
accused
would come back. For some reason after a short time she
ordered the security guard to go back to his post. About thirty
minutes later
she saw a man rushing into her ward. She again went to
the security department but when she came back the deceased was lying
in a
pool of blood on the floor. The man she had seen was no more
there.

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According to the security guard, one Mokhethi Mokhethi;
after the alarm was raised he ran out of the hospital and found a
soldier
near the gate on the western side of the hospital. He was
calling the accused who was on the other side of the road,. They went
to
the accused and arrested him.,

During the inspection in loco I observed that the
accused was found almost directly opposite the gate on the western
side of the hospital;
he was about forty-four (44) paces from
Kingsway Road into High Court Road which runs on the western side of
the hospital. The question
one may ask is, if the accused was going
to the central charge office what did he want at the gate of the
hospital which is about
44 paces from where he would be if he was
going to the central charge office. The indications are that the
accused was coming out
of the hospital where he had just finished off
his wife like he had expressed his intention to the Crown witnesses
that he would
do so. It is significant that when the accused was
asked by the soldier and the security guard whether he had any knife
in his possession,
he said he did not have any. It was only after
they had beaten him up that he produced a brand new knife. Its blade
was covered with
fresh blood which had started to coagulate. It is
significant that its

handle
was not covered with any blood. If the blood came from the­wound
on the head of the accused the whole knife ought to have
be covered
with blood.

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Mr. Matsau has submitted that the evidence of
Selloane should be rejected because what the deceased told her was
not a dying declaration envisaged
by section 226 of the Criminal
Procedure and Evidence Act, 1981. The requirement of expecta­tion
of death has been summed up
in R. V. Abdul 1905 T,S. 119 at p.
122-3 by Innes, C.J. by saying:

"The rule is that three things must have concurred.
The person must have been in danger of impending death; he must have
realised
the extent of his danger so as to have given up all hope of
life; and death must have ensued."

He submitted that the Crown has failed to adduce
evidence to lay down the basis for the said requirements. I agree
with this submission.
Furthermore the declaration cannot be a dying
declaration on the second ground that it was not intended to prove
the declarant's
death. The deceased was not saying that the accused
had come and stabbed her again. Her story is inadmissible hearsay
that the accused
came to the hospital and said unpleasant things to
her. I shall disregard it in making my decision on this point.

I reject the version of the accused that he was found
between the National Library and the Blood Bank by the soldier are
Mokhethi
Mokhethi. His evidence is that he does not deny that at one
time he was at the hospital, but at the same time he tries to deny
that
he went to hospital. He is an unreliable witness. I

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have formed the opinion that he did go to the hospital
and stabbed the deceased with the knife - Exhibit 2 which was later
found with
a bloody blade.

Mr. Matsau further submitted that the Crown has
not established beyond a reasonable doubt that the deceased incurred
further injuries at the
hospital. In this regard he asks the Court to
compare the evidence of Selloane Maepe and Matseleng Moshesha. The
latter said that
the deceased was not bandaged when she arrived at
the scene while Selloane says that she did not examine deceased's
wounds when she
was on the floor. He submits therefore that it cannot
be held with any amount of certainty from the evidence of the Crown
that the
deceased suffered further attacks at the hospital.

I think Mr. Matsau has not stated the facts
correctly. Selloane's evidence is that tne wounds of the deceased had
already been bandaged at the casualty
department but that she did not
examine them very closely. She immediately went to the laboratory to
get blood because the deceased
had lost a lot of blood. 'Matseleng
Moshesha does not in any way contradict Selloane Her evidence is that
when she came to Cubicle
A in Ward 2 the deceased was on the floor
and had a big wound on the chest and a. lot of blood was coming out.
There is no doubt
in my mind that this was a fresh injury which was
not there when Selloane left for the laboratory. She had put the
deceased in the
bed and would have seen that big wound if it was
there when she put her in bed,

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The last question is whether the accused was provoked or
not. I think this question must be answered in the negative. The
story of
the accused is not only improbable but it is false beyond
reasonable doubt. He alleges that his wife failed to come home for
the
whole week. He knew where she worked but never went there to find
out what was wrong. He alleges that he made a telephone call to
her
place of work and he was told that she was still coming to work.
Instead of going to her place of work at 7.00p.m. when he arrived
at
home he went on a drinking spree for the whole week.,

In S. v. Ndhlovu (2) 1965 (4) S.A. 692 at p. 695
Holmes, J.A. said:

"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 (see sec. 350 of the Code) 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 no.¹ 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 the individual with the evil of his deed".

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Is it not reasonable to conclude that in the present
case the accused went on a drinking spree in order to fortify himself
with liquor
to enable him insensitively to carry out a fell design? I
am saying this because the elder brother of the deceased. Teboho
Thulane
(P.W.9) testified that on the 18th December, 1987 the
deceased came to her maiden home and reported that she had marital
problems
in Maseru. His story is undoubtedly hearsay but the conduct
of the accused clearly confirms the story that they had marital
problems
and that was the reason why she stayed away from home for
such a long time. If it were not so the accused would have made
immediate
inquiries about her disappearance. He did not do anything
because he knew that they were having problems with his wife and was
not
at all surprised when she avoided going home for a full week.

The accused says that he lost power of self-control when
the deceased told him that she no longer loved him. He slapped her
and she
fell down. When she rose she picked up Exhibit 1 and threw it
at him. She missed him. Then he took Exhibit 1 and stabbed her with
it so many times that he does not remember how many. It seems to me
that the words that "I do not love you any more" were
not
enough to provoke an ordinary person of the class of the community to
which the accused belongs. As I have already stated above
the accused
knew why his wife was not coming home and that could not be regarded
as a sudden provocation. He had become used to it
and was taking no
proper steps to find out why she was

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not coming home because he knew the cause. I am of the
opinion that the provisions of the Criminal Law (Homicide Amendment)
Proclamation
No.42 of 1959 do not apply to the prsent case and that
provocation is not available to accused as a defence.

In any case even if it can be found that he was provoked
he did not kill the deceased at Borokhoaneng but at Queen Elizabeth
II Hospital,
He cannot claim that he was still provoked when he came
to the hospital.

I have found that there is overwhelming circumstantial
evidence that the accused did go to the hospital and finished off his
wife.
He had expressed his intention to the Crown witnesses and
subsequently carried out his intention. He denied that he had a knife
when
he was asked by the soldier and the security guard because he
wanted to distance himself from the events that had just taken place
at the hospital. In my view this is a clear case of dolus
directus. The killing of the deceased was so well planned that
the accused cannot be heard to say he was drunk. No drunken person
can plan
his actions so well. Had it not been because of the unknown
soldier who stopped him at the gate it would never be known who
killed
the deceased.

In my view the accused is guilty of murder and I convict
him accordingly.

My assessor agrees.

J.L. KHEOLA
JUDGE

9th February, 1990.

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Extenuating Circumstances

The Court has convicted the accused of murder; it is

now its duty to determine whether or not there are
extenuating circumstances. The onus is on the accused to show that
there are extenuating
circumstances. He must convince the Court on a
balance of probabilities of the existence of such circumstances (R
v lembete, 1947 (2) S.A. 603 (A.D); R v Balla and others,
1955 (3) S.A. 274 (A.D.).

Mr. Matsau submitted that at the time the accused
committed the office charged he was drunk. His mind was so affected
by the intoxicating liquor
that the Court must take this factor into
account. The evidence of the accused is that he drank liquor for
almost the whole night
because he only went to bed at 4.00 a.m. after
he had been drinking beer. He woke up at about 8.00 a.m.

and started drinking at various places until he met the
deceased

at about 12.00 noon and took her to their home where he
assaulted her.

There is no doubt that at the relevant time the mind of
the accused was under the influence of liquor and it is not necessary
to detemines
the exact degree to what it was affected. The most
important thing to determine is the quantity of the liquor consumed
by the accused
before the commission of the offence. In the present
case the quantity was very large.

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The only question which remains to be answered is the
one posed by the Court in its reasons for judgment - whether it is
not reasonable
to infer that the accused deliberately fortified
himself with liquor to enable himself insensitively to carry out a
fell design.
The question was not positively answered then but must
now be answered because the answer to it will determine whether
intoxication
is to be taken as a mitigating factor or not.

There is no direct evidence that the accused took liquor
or went on a drinking spree for the whole of that week because he
wanted
Dutch courage so that he could insensitively kill his wife. It
is also not the only reasonable inference to be drawn from the proved
facts that he had the death of his wife in mind when he over-indulged
in intoxicating liquor. He may have sought solace in liquor
when he
discovered that his wife had deserted him. I am of the opinion that
intoxication should not be rejected out of hand as a
factor that may
be taken into consideration when mitigating factors are determined.
This should be done despite the fact that it
was rejected as a
defence.

The question of provocation was also rejected as a
defence on the ground that even if it can be assumed that the assault
at the marital
home at Borokhoaneng followed what amounted to
provocation, the assault at the hospital took place too long after
the provoca­tion
at Borokhoaneng. The accused's anger must have
cooled down during a period of well over two hours. For purposes of
mitigation I shall
take into consideration the fact that according to
their former landlady 'Malerato Moketa (D.W.3), the couple did not
live happily

/21

-21-

together and had several fights during the three years
they rented her house. It seems that the incident presently under
consideration
might have been the last straw.

The cumulative effect of drunkeness and provocation
lessens the moral blameworthiness of the accused. I find that there
are extenuating
circumstances .

Sentence:

The fact that the accused went to the hospital and
killed his wife is an aggravating factor. On the factors which
mitigate sentence
we took into consideration that he is a first
offender. He has a minor child to bring up; he was drunk and
provoked.

For the reasons stated above we thought that a sentence
of seventeen (17) years' imprisonment would be a deterrent one and
sentenced
him accordingly.

My assessor agrees.

J.L. KHEOLA JUDGE

12th February, 1990.

For the Crown - Mr. Mokhobo
For the Defence - Mr.
Matsau.