CRI/T/70/88

IN THE HIGH COURT OF LESOTHO
In the
matter of :

REX
v

TUBATSI 'MUSO

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
12th day of February, 1990.

Held at Butha-Buthe,

This is a summary trial in which |the accused is charged
with a double murder, it being alleged that on or about 12th
December, 1987
and at or near Ha Seshote in the district of Leribe he
unlawfully and intentionally killed 'Mamoretele Melida 'Muso and
Samson Ralikeleli
'Muso.

The problem I experienced in this case was that no
Preparatory Examination had been held. The judge's file contained
only the Psychiatrist's
report indicating that the accused is
mentally deranged and incapable of following the court proceedings.
For this reason I ordered
that evidence be adduced so as to enlighten
the court whether or not the accused had in fact committed the
offence against which
he stood charged.

2/ Briefly, the ........

-2-

Briefly, the evidence was to the effect that prior to
12th December, 1987 the accused's wife went to her maiden home. The
accused
remained with the two deceased persons who were his own
children aged 7 and 5 years. In the early morning of the day in
question,
12th December. 1987, the bodies of the deceased were found
outside the accused's house. Both deceased had their throats cut and
the corpses were covered with blankets belonging to the accused
person. When he was asked what had happened to his children, the
accused kept on saying "I say these children should be burried".

The accused was arrested and subsequently charged as
aforementioned. Although there is no direct evidence that the
accused killed
the deceased persons, there is, in my view, ample
circumstantial evidence indicating that the accused did so, He was
the only person
staying with the little children in the house; the
children were found with their throats cut just outside the accused's
house. and
their dead bodies were covered with the accused's own
blankets. Indeed, the accused never reported the death of the
children to
anybody and when he was questioned about it he merely
contended himself with "I say the children should be burried."

As I have pointed out earlier, there is a medical.
report in the file indicating that the accused is insane. He could
not, therefore,
plead to the charge or understand the proceedings.
Indeed,I have been looking at him while

he was sitting in the court. All the time he was
looking

up in the sky. He did not seem to have the least
interest

3/ in what

-3-

in what was going on before the court. I entirely
agreed with the medical report that because of insanity the accused
could not understand
the court proceedings. There was no need,
therefore, to ask him to plead to the charge against which he stood
charged before the
court.

Section 172(1) of Criminal Procedure and Evidence Act
1981 provides that where it is clear that the accused cannot
understand the
proceedings, the court shall enquire into the question
of his insanity. As it has already been pointed out, in this case
there is
a medical report indicating that the accused has already
been observed by a mental doctor and accordingto the report, the
accused
is insane. There is. therefore, no need to make an inquiry
on the question of the accused's sanity.

Having satisfied myself that the accused is an insane
person S.172(2) of the Criminal Procedure and Evidence Act, 1981
enjoins me
to commit him to prison pending the signification of his
Majesty, the King.

On the authority of the provision of S.172(2) of the
Criminal Procedure and Evidence Act 1981, I accordingly commit the
accused to
prison pending the signification of his Majesty, the King.

My assessprs agree.

B.K. MOLAI JUDGE

12th February, 1990.

For
Crown : Mr. Mokhobo

For Defence : Mr. Klass.