1

CRI/T/7/99

IN THE HIGH COURT OF LESOTHO
In the matter
of:

REX

vs

'MAZULU MPOKOMA
JUDGMENT

Delivered by the Hon. Mr Justice ML. Lehohla on the 17th
day of

November.
2000

H.L. Who wants to tell me what now at this stage?

CC Your Lordship at this stage I would like to draw the
attention of the Court to the fact that we have come to some kind of
agreement
with the defence that the accused's state of mind falls
within the ambit of section 166 of the Criminal Procedure and
Evidence Act
read together with section 172 of the Criminal Procedure
and Evidence Act.

H.L.
To what effect?

CC
Section 166 makes reference to the effect that when an accused
person is called

2 upon to plead and the court is satisfied thereupon the
court will then treat her

in terms of section 172 and make an order accordingly.
H.L. If it appears to the court that the accused is insane? CC That
is so
my Lord. H.L. Or if the court is uncertain that the accused
understands a plea, or is capable

of understanding the proceedings then she should be
treated in terms of section

172; then what does section 172 say. CC Section 172
then says the court will then make an order after convincing itself

as to the state of mind of the accused. The court will
then make an appropriate

order. H.L. Have you been able to communicate with her?
Supposing I ask her to stand up

will she be able to do that? DC She is responding
sometimes, sometimes she is not responding. I don't know

the court can tell her my Lord. H.L. What is her name?
DC 'Masolo

H.L. 'Masolo! What's your name?
- The accused did
not reply
H.L. Okay, oh well from the you have read the report?

3 DC Yes my Lord I have read the report

H.L. The report by the doctor who has since left?

DC Yes my Lord

H.L. The Psychologist/Psychiatrist?

DC Yes I read it my Lord

H.L.
Now I really wonder why the Magistrate didn't act in terms of the Act
-

because this report was received by the learned
magistrate way back in 1996.

Okay sit down. Oh, she understands English. Evidence of
'Mateboho Thoso given on oath. H.L. Are you a relation of the
accused? 'Mateboho:
Yes H.L. How?

'Mateboho: She is my sister H.L. Blood sister or how?
'Mateboho: We are from the same mother H.L. Well your sister had the
misfortune
to kill her own child. Do you know about

this?

'Mateboho: Yes my Lord H.L. How old was the child?

4 'Mateboho: Roughly about 2 years.

H.L. Was it a girl or a boy? 'Mateboho: She was a
girl H.L. Was the accused married or what? 'Mateboho: She was once
married

H.L. How old is she now? Is she older or younger than
yourself? 'Mateboho: She is younger than me.

H.L.
How old is she? By how much do you exceed her by age? 'Mateboho: She
was bom in 1966 H.L. Yes, it looks like when in fact the
killing of
Lerato occurred on the 4th

December 1996 the accused was referred for mental
treatment or observation

on the 9th of the same month. Are you aware of that?
'Mateboho: Yes my Lord. H.L. Where were you?

'Mateboho: I was where I stay at Morija. We don't stay
at the same place H.L. You were at Morija when she was referred for
medical
mental observation? 'Mateboho: I ask myself whether the
observation was made by the psychiatrist

or

H.L. Yes she was treated by a psychiatrist at Paray
Hospital at Thaba-Tseka

5 'Mateboho: There I was not present

H.L. You live at Morija?

'Mateboho: Yes my Lord

H.L.
And what about her?

'Mateboho: She lives at Thaba-Tseka, Mohlanapeng.

H.L. Is there anybody there who may have been present
when she was referred to this Paray Hospital?

'Mateboho: No my Lord they are not there.

H.L. Not even witnesses?

'Mateboho: No my Lord they didn't know that they were
supposed to be there.

DC The court was trying to find out whether the accused
was sent to mental hospital by application of the family

H.L. Yes this is what I was trying to find out but I
want to find out from somebody who actually knows. You see I have
already indicated
to you that the child was killed on the 4th
December, 1996, five days thereafter the accused was referred for
mental observation
or treatment. That's fairly close. Isn't it?

'Mateboho: Yes my Lord.

H.L. Now tell me who do you think sent her there? Or how
did you come to learn that she was referred to any such?

6 'Mateboho: I learned that she was sent there whilst
she was here at the female prison

because I was asked for her medical history book. H.L.
Oh, it was demanded of you by the prison staff? 'Mateboho: Yes my
Lord and
the doctor also H.L. where is it now that book? 'Mateboho:
It remains with the patient where she is. H.L. Who takes care of her
where
she lives when you are at Morija and she lives at

Thaba-Tseka? 'Mateboho: I cannot say there is a person
who has the full responsibility because she

was living with her kids alone. H.L. Your parents are
still alive? Her parents? 'Mateboho: No my Lord

H.L. You said she had been married, what happened to the
husband? 'Mateboho: They separated. H.L. Where is the husband now?

'Mateboho:
I don't know anything about his whereabouts. H.L. Why did they
separate? 'Mateboho: I think it was misunderstanding between
them
because they stayed

together for about two years and she returned home, and
the parents

7 were still alive.

H.L. I see, and then the question of communication. You
see I asked her what her name is and she does not tell me. I asked
her to
stand up of course she did, I asked her to sit down and she
did. Do you have the same sort of difficulty with her or does she
communicate
well with you?

'Mateboho: At times this period of silence comes and at
times she does things perfectly well.

H.L. Apart from this episode which occurred to her own
child do you know her to have bouts of violence or something towards
other
persons?

"Mateboho: Yes my Lord.

H.L.
Oh, she has bouts of violence?

'Mateboho: Yes my Lord.

H.L. Do you want to ask her anything?

DC: Assuming the court finds her guilty and then the
court makes recommendations that she goes to mental hospital, who
will take care
of her? May be just to go and see how she is
progressing and things like that? Will you take care to keep and peep
to see her whether
she is improving or not?

"Mateboho: I will go and visit her.

CC:
At the time when she strangled her child where were you living?

8 'Mateboho: I live at Morija, that is where I live for
my life.

CC: And after the occurrence of this strangulation did
you go to Thaba-Tseka and

then how soon was that?

'Mateboho: The day in between after I had received the
report. H.L. Well when you responded to that message, did you find
her anywhere
at home

or in prison already? 'Mateboho: When I arrived it was
said that she was in prison at Thaba-Tseka. When

I arrived at Thaba-Tseka female prison it was said that
she had been

transferred to Maseru female prison. CC: Do you go and
see her at the female prison Maseru? 'Mateboho: I am going there
often.

CC: No I am saying immediately after she had strangled
her child? 'Mateboho: Yes when I came from Thaba-Tseka I went
straight to the
female prison CC: And how did you find her on your
arrival there? 'Mateboho: To my observation she couldn't talk to me
or she was
the person who

appeared to have no insight of what was happening. CC: I
have nothing further your lordship.

Crown Counsel read the contents of the report of the
doctor.

9 CC: The contents read as follows and this report was
made by one Dr C.J. Doherty,

and it reads as follows :"To the officer in charge
Thaba-Tseka LMP station, Thaba-Tseka Lesotho - Re:'Masolo Mpokoma
patient
- Thanks for asking us to assess this patient, who is said to
have strangulated her child to death. The patient, the thirty-two
year
old unemployed claimed she killed her two year old child because
of pity, so that the child doesn't die of hunger. On assessment
of
the mental state, she lacks judgment, insight and there is mild
mutism. Although the reaction to questioning was appropriate,
reasoning was crossly out of context. The appearance, dressing and
composure were in keeping with a previous diagnosis of major
Psychopsis
( schizophrenia). She was actually admitted to this
hospital in January 1996 for treatment but defaulted. She did take
the follow
up treatment ever since. Based on the forgoing, she is a
confirmed psychotic (mentally ill person) Thanks, Yours faithfully(Dr
C.J.
Dolerty, Parray Hospital with the rank of Medical Officer)

CC:
And this report is dated the 9th December 1996. That is all your
Lordship.

H.L.
Thanks. You want to hand it in?

CC:
We would like to hand it in your Lordship

H.L.
That will be Exhibit 'A'. So you say that you are agreed that she be
treated in

10 terms of the two sections?

CC:
That is correct your Lordship

DC:
That is so my Lord.

H.L. The accused, 'Masolo Mpokoma has been charged with
the crime of murder: in that upon or about 4th December, 1996 and at
or near
Mohlanapeng in the district of Thaba-Tseka, she unlawfully
and intentionally killed one Lerato Mpokoma.

The accused has not been asked to plead to this charge
because it appeared from the documents in the Court's file, and to
the court's
observation of the accused herself that she doesn't seem
to be well upstairs as they say. She remained to glued to her sit
when the
Court came into Court, when the Court asked her name, she
didn't give it, however to her credit when asked to stand up she did
and
when asked to sit down she did.

The fact that she remained silent without saying
anything by way of response to the Court's questions confirms what
the doctor who
treated her and referred to this state of affairs as
her 'mild mutism' that's silence.

In an endeavour by the court or rather before that, both
counsel informed the

11 court that it would be profitable if the accused were
to be treated in terms of section

166 read with 172 of our Criminal Procedure and Evidence
Act. The court on its part and in an endeavour to find out a little
about
her history, called forward PW1 'Mateboho Thoso who told the
Court that she is related to the accused and that the accused is her
sister, and that they are bom of the same mother, and 'Mateboho Thoso
is aware that the accused killed her two year old daughter,
a girl
called Lerato.

'Mateboho told the Court that the accused was once
married but has since separated from her husband within two years of
such marriage.
She told the Court that the accused was bom in 1966.
Although when the event took place she was not there, she is aware
that on 9th
December 1996 the accused could have been undergoing
mental treatment, she is inclined to this view because when she
responded to
the message that the accused had killed her daughter on
the 4th December 1996, a matter to which she responded by going to
the accused's
home within two days of receiving this message, she was
asked for the accused's medical book by a doctor who was treating the
accused,
in collaboration with the prison authorities. This is how
she got to know that the accused had been referred for mental
treatment.

She told the Court that the accused was living alone
with her kids and that

12 nobody has full responsibility towards her, as their
parents are no longer alive. She

indicated that the accused has got this habit of
remaining quiet even when she is being spoken to, and that she has
bouts of violence
towards other persons. She confirmed that even when
she went to see her in prison, there was no communication between the
two despite
her attempt to let the accused speak to her.

This is in brief the evidence that has been adduced
today.

Now on the law, section 166 of our Criminal Procedure
and Evidence Act reads as follows :

"If when the accused is called upon to plead to a
charge, it appears to be uncertain for any reason whether he is
capable of
understanding the proceedings at the trial so as to be
able to make a proper defence, a procedure prescribed by section 172
shall
be observed".

The procedure under that section, that is 172 subsection
(2) reads as follows :

"If the court finds the person charged with an
offence insane or mentally incapacitated pursuant to subsection (i),
the judicial
officer presiding at the trial shall record such verdict
or finding, and shall issue an order committing such a person to some
prison
pending the signification of Kings Pleasure".

13 I have already indicated that the accused was not
asked to plead, only if she had

been asked to plead, would a verdict come announcing her
either guilty or not guilty, but as it is the court finds that she is
incapable
of following the proceeding because of her mental
incapacity.

Dr Doherty whose medical report has been made part of
this proceeding marked Exhibit 'A' has indicated that the accused
suffers from
mental disease, and among other things, she/he has
indicated that previous diagnoses of this patient manifests a major
psychosis
known as (schizophrenia) indeed criminal jurisprudence has
had to deal with on many occasions, people who suffer from
schizophrenia.
One notable person was, in this regard, a man who has
since died, not so long ago called Tzaffendas noted for having killed
the Prime
Minister of South Africa Dr Verwoerde.

One of the things that one gathers from people who
suffer from this type of thing is that they at times behave perfectly
normally,
and one thing that the doctors and psychologists are at one
with regarding schizophrenia is that they have no sense of shame
whatsoever,
they are not guilt-ridden, they can kill the whole host
of people here and manifest no regret whatsoever.

14 So it is in this regard that the only place which
would ensure the safety of the

community while at the same time not punishing, because
courts can only punish commission of crime but not punish people who
have
not been convicted is to refer them to an institution pending
signification of the King's Pleasure. It is for this reason therefore
that acting in terms, of section 172 subsection (2) of our Criminal
Procedure and Evidence Act I order that the accused by virtue
of her
mental illness be kept in some prison pending the signification of
the King's Pleasure. That will be the judgment of this
Court.

JUDGE

17th November, 2000

For Crown : Mr Hoeane
For Defence: Mr Lesuthu