CRI/T/3/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
V
NOLASI ADONISI
JUDGMENT
Delivered by the Hon. Mr. Justice J.L Kheola on the 27th day of May, 1985
The Accused is charged with the murder of Nohinges Masoabi (hereinafter called the deceased) on the 30th October. 1983 at or near Mtjanyane in the district of Quthing. The accused pleaded not guilty.
Mr. Kambule, counsel for the accused, admitted as evidence before this Court the depositions at the preparatory examination of the following witnesses: P.W. 1 Dr. Thomas T.H. Stillmach, P.W. 3 Kolozana Masoabi, P.W. 5 C.M. Moeletsi. including the confession which was recorded by her and P.W. 6 P/W Rathoma. Dr. Stillmach's evidence is that on the 1st November, 1983 he performed a post- mortem examination on the body of the deceased and found that death was due to brain damage (brainedema) after impression fracture of the frontal skull (R). He also found fifteen (15) small superficial lacerations on the face end the neck, three (3) lacerations about 4cm. on the skull, He was not sure what weapon could have caused the lacerations on the neck and face. The post mortem report was handed in as an exhibit and marked "Ex. A".
The evidence of Kolozana Masoabi (P.W. 3) amounts to a confession made by the accused to the chief and subsequently to the police in the presence of the witness. The confession was eventually reduced to writing by a magistrate (P.W.5) in terms of section 228 (2) of the Criminal Procedure and Evidence Act 1981. In her confession the accused
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told the magistrate that she killed the deceased on the 30th October, 1983. She explained that she first met the deceased at a feast; she (accused) attacked her and slapped her. Notimiti intervened and expelled the deceased. Later that afternoon when she was going to her home the accused found the deceased along the way sitting near a rock and her walking-stick was next to her. She asked the deceased why she was insulting her. She denied that she insulted her and said that the people who alleged that she insulted her were telling a lie. She (accused) took deceased's stick and struck her twice on the head with it. She left her there bleeding.,
She walked for some distance and looked back. She saw that the deceased was coming behind her. She returned to her. At that time it came to her mind that the deceased had illegally taken a lot of what. was due to her and in addition to that she went about insulting her. She has also unlawfully squandered her husband's money and her (deceased's) daughter has run away with her husband leaving her alone. It also came to her mind that after her husband had run away with the deceased's daughter her house was destroyed by fire and her entire property including two beds was burnt. The people told her that her house had been set of fire by the deceased's daughter and her husband, It had been planned that when the house was set of fire she should be in it so that she could be killed.
Thereafter she captured a letter from the deceased ss it was being read to her by another woman. She took it to the chief where it was read and it was discovered that her husband was sending an amount of R50 to the deceased. The chief summoned her She was asked about the letter and why she had not taken it to the chief when she discovered that another woman's husband had written a letter to her. Deceased explained that she was surprised when the letter came and was still trying to understand it. The money which was enclosed in the letter was released to the accused by the deceased in the presence of a senior
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chief. The accused told the magistrate that the deceased received another sum of money from her husband. It was in connection with this last sum of money that the deceased insulted her saying that she did not know whether the witch (referring to accused) would get to know about it and then assault her. Accused says that at this stage she became that the deceased had been so unjustly enriched then she provoked her even when she had not done anything Wrong to her.
It was at this stage that she returned to her when she saw her coming behind her. She took a stone and hit her with it. The deceased fell down and she then hit her with fists. As she was rolling on the ground a knife fell out of her pocket. The accused took it and stabbed her with it several times on the face and the neck. She realized that the deceased was dying when she said: "Oh! I am dying for my daughter's adultery." She died. The accused left her and went to her home so much for the confession.
P/W Rathoma deposed that on the 31st October, 1983 she was taken to the scene of the crime and found the corpse and examined it. She also found a brown Okapi knife next to the corpse. On the 4th November, 1933 she went to the home of the accused and the following articles were found in the house: a green dock, a red towel, A1 tobacco, a smoking pipe, 35 cents, and a blue and white scarf. She seized all these articles which were handed in as exhibits and marked as follows: knife "Ex 1", the other articles were marked '"Ex 2"'collectively. It was common cause that all the articles except the money belonged to the deceased.
After the defence had made the formal admissions mentioned above the Crown called four witnesses, viz. Bright Masoabi (P.W.1), Luko Nohane (P.W.2), Notimiti Mgwase (.P.W.3) end Nomasomi Ationisi (P.W.4). As these witnesses were not present at the spot where the killing took place their evidence concerns the events at the feast and the events leading up to the arrest of the accused and her admission
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that she killed the deceased, P.W.3 confirmed that she intervened when the accused slapped the deceased at the feast. P.W. 4 and P.W.3 were that the accused is a teetotaller and that at the feast they did not see her drink any intoxicating drinks. P.W. 3 denied that she accompanied the accused to Ntho's place where she alleges to have gone to consult a diviner who was supposed to reveal the cause of the fire which destroyed her house.
At the close of the Crown case the defence tendered a plea of guilty of culpable homicide., For reasons that will become apparent later in the course of this judgment I refused the plea. The accused went into the witness box and gave a story which was substantially similar to the detailed confession she made to the magistrate, however,there-were some variations and additions which did not matter
very much. in her evidence before this Court she said she was very drunk on the day she killed the deceased. Hiss Moruthoane, for the Crown, contended that this was an afterthought because if it were true she would have revealed this in her confession which she made only a few days after the killing. I do not agree with this suggestion because the accused could not be expected to have said everything relevant to the issue at that time. she had not prepared a written statement in which she could be expected to include everything. She is not a lawyer who knows the implications of drunkenness in a criminal trial.
In her evidence she told the Court that it was one Makase who told her that the deceased was going about insulting her by calling her a witch. This point was admitted by Makese at some stage during the investigations of this case. The accused said that when she saw the deceased at the feast and at the time she found her sitting on the rock, she became very angry and wanted to punish her. After she had killed the deceased she saw her articles (Ex.2} which had fallen when she ran away, she (accused) collected them and took them to her house.
The defence of the accused is that of drunkenness and provocation. With regard to drunkenness our law is found in the Criminal Liability of Intoxicated Persons Proclamation Nq.60 of 1938, section 2 (2) of which reads as follows:
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"Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-
the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such or omission."
Even assuming that the accused was drunk as she alleges, the inquiry is still whether or not she was so drunk that she did not know that what she was doing was wrong or that she did not know what she was doing. In her confession and evidence before this Court the accused related the events of that day in such minute details that it is very clear that her mind was not affected by intoxication to the extent that she did not know that what she was doing was wrong or that she did not know what she was doing. If she was in such a drunken stupor as the defence wants the Court to believe she could not have remembered the events so accurately. I have also considered the nature of the injury on the head - a depressed fracture of the frontal skull. This injury must have been caused with some considerable force either with the stick or with the stone which the accused threw at the deceased. If the accused had been drunk she would not have had the strength to break deceased's skull.
The accused has also alleged that the deceased provoked her by going about in the village calling her a witch. It was common cause that the accused never heard deceased call her a witch and that when she was accused of having done so the deceased categorically denied the accusation and said that the rumour was spread by people who were telling lies about her. It is not clear exactly when the accused received the information from one Makese that the deceased was insulting her, but what is clear is that it was some days before she went to the
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feast. So that when the accused saw the deceased at the feast she already knew the insult and nothing came to her knowledge suddenly, The same applies to the fact that the deceased had previously been given money by accused's estranged husband. She had known for a long time that her husband was having an affair with the deceased's daughter and that they were living in Germiston in the Republic of South Africa. It seems to me that the accused did not act in the heat of passion caused by sudden provocation (set section 3(1} (b) of the Criminal Law (Homicide Admendment) Proclamation No.42 of 1959).
In Rex v. Makhethang Setai 1980 (2) L.L.R. 359 it was held that provocation does not reduce an intentional killing to culpable homicide. Upon a charge of murder where there is evidence of provocation only one inquiry need be made, viz. did the accused subjectively intend to kill? If the answer is in the affirmative it will be murder possibly with extenuating circumstances. If the intention to kill was negatived by the provocation, it may be culpable homicide. In the present case whatever anger suddnely came to accused when she saw the deceased seated near a rock was not only unjustified but did not even negative the intention to kill. The question is whether from the proved facts an inference can be drawn that the accused foresaw the possibility of death resulting from hitting the deceased on the head with a stick and later with a stone, and was reckless of the result. The accused admitted that the deceased was an old and malnourished woman who because of her frail condition had to use a walking- stick to support herself. She foresaw the possibility of death resulting from hitting the deceased but she was reckless of the result. The accused hit the deceased on the head with her. stick and left her. When she looked back and saw that she was coming she returned to her and hit her on the head with a stone and felled her. She then hit her with fists until a knife fell from deceased's pocket. Accused took it and stabbed her on the face and neck fifteen times. She stopped beating her up only when she screamed saying she was dying for the adultery of her daughter.
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I come to the conclusion that the accused legally had the intention to kill the deceased.
The accused is found guilty of murder. My assessors agree with me,
J.L. KHEOLA
JUDGE
27th May, 1985.
For the Crown : Miss Moruthoane
For the Defence : Mr. Kambule
Finding on Extenuating Circumstances
In considering the existence or non -existence of extenuating circumstances I took into account the remarks in R. v Fundakubi and
others 1948 (3) S.A. 810 (A.D.) at page 818 that "it is at least clear that the subjective side is of very great importance, and that no factor, not too remote or too faintly or too indirectly related to the commission of the crime, which bears upon the accused's moral blameworthiness in committing it, can be ruled out from consideration",
In S.v.Manyathi, 1967 (1) S.A. 435 (A.D.) it was pointed out that a trial court should consider the comulative effect of possible
extenuating circumstance, and that it misdirects itself if it considers and dismisses each factor in isolation. In the present case the accused alleges that she was drunk on the day she murdered the deceased. The Crown witnesses denied this and went further to tell the Court that the accused is a teetotaller. I watched the Crown witnesses as they gave evidence and I had the impression that because of what they regard as an unprovoked ghastly murder of a decrepit lady they were not prepared to give any evidence that would in any way favour the accused. For
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instance, they denied any knowledge of the affair between the deceased's daughter and the accused's husband. This affair musthave been common knowledge in the village because accused's husband had left his home and was living deceased's place. If the accused had not been drunk why did the other women have to leave her when they went home? She explained that she was so drunk that she had to steep and when she woke up the other women were gone. This evidence has not been challenged by the Crown at all. I formed the opinion that the accused's mind was to some extent affected by liquor but not to the extent that she did not know what she was doing.
The question of provocation has also been pleaded by the defence. It is not in dispute that one Makese spread the story that the deceased was going about calling the deceased a witch who would again know that she had received another sum of money from her husband who was living with deceased's daughter in Germiston. It must also be borne in mind that she had previously intercepted a letter addressed to the deceased from her husband (Ex.A). The accused must have believed the rumour even if it were not true.
With regard to her belief in witchcraft I am of the view that her anger was directed at the wrong person. The accused told the Court that the diviner told her that her house had been set on fire by people who had run away, i.e. her husband and deceased's daughter. They were alleged to have used supernatural powers known as "votha". There was no suggestion that the deceased had anything to do with the burning of the house.
Considering the effect of liquor on her mind and the "provocation" caused by the rumour that deceased called her a witch I formed the opinion that there are extenuating circumstances. The verdict is therefore, one of guilty of murder with extenuating circumstance. My assessors agree.
Sentence: Seven (7) years imprisonment.
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