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CRI/T/80/2000

IN THE HIGH COURT OF LESOTHO
In the matter
of:

REX

vs

HALEJOETSE MATALA
JUDGMENT

Delivered by the Hon. Mr Justice M.L. Lehohla on the 9th
day of May, 2001

The accused was charged with the crime of murder,
specifying that on or about 17^th October 1998, at or near
Ha-Matala in the Leribe district, the accused did unlawfully and
intentionally kill one 'Makhotso Matala.

When the charge was put to the accused he indicated
unequivocally that he did kill the deceased but that it was not with
intent.

It should be clear that the deceased is his wife.

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However because the Crown rejected this plea of
guilty to culpable homicide,

the Court had to enter a plea of not guilty, and
accordingly the Crown had to lead evidence and thus called its first
witness.

The first witness was the daughter of the couple aged 21
presently. She outlined to the Court the events of the day in
question. In
brief she said that on that day her father arrived from
work on the mines in South Africa. On arrival he asked PW1 to go and
call
her mother who was absent. Apparently the mother was at the
place where there had been a death and there preparations for the
funeral
were afoot.

When the mother arrived she prepared tea for the
accused. While this was going on a fellow from the circumscision
school arrived and
raised his objection and complained to the accused
and his wife that it seemed they were not practising abstinence
despite the fact
that their son was in the circumcision school and
had fallen ill. The accused drew this to the attention of his wife
when this messenger
had left, but she didn't seem to care at all
about this objection.

The accused has not been to the circumcision school, and
he doesn't like it, but PW1 his first daughter has been to that
school and
also of course the son who was ill

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at the time at the circumcision school.

It was in this sort of background that the accused,
though he doesn't approve of this type of school, indicated as
follows to the
deceased : "my wife since you have associated
yourself with this type of school and things pertaining to it, it is
high time
you observed the taboos and rituals pertaining to this type
of practice". And this is what the wife seemed not to give any
thought
to. She made light of the admonition to the disappointment of
the accused. Indeed she started swearing at one of her younger
daughters
and continued until the accused felt that the insults and
the swear words were obliquely intended for him. It may be so
concluded
because the daughter had done nothing to attract that type
of response from her mother. PW1 testified to that effect in fact.

Now that the accused intervened in the manner that he
did by questioning whether the insults were not in fact obliquely
intended for
him, the wife now started swearing at PW1, calling her a
prostitute and saying that she is terribly bothered and troubled by
their
presence at her house. This went on until the accused and his
wife went to their bedroom. Other members of the household went to
their bedroom in a separate hut a distance away.

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It was while they were in the early stage of their
sleep that PW1 heard a cry and

identified the cry as emanating from her mother. Knowing
her mother's habits she asked the younger boy Lefojane to go and ask
of the
father's pardon on behalf of the mother or else the mother
would go on and on. Meantime she herself made for her aunt's place or
what she calls her grandmother 'Mantebaleng to seek her assistance
and intervention between her mother and father. But the form of
assistance that was offered was hardly any good because the
interveners didn't enter the bedroom in which the assaults were going
on. However she appealed to the accused, that is 'Mantebaleng
appealed to the accused who said well he had acknowledged her message
and pleas. To all intents and purposes the riffraff that was going on
in the bedroom appeared to have stopped. In fact there came
a stage
when the deceased asked for water from her daughter PW1. Apparently
the accused had exchanged bedrooms and had decided to
go and sleep in
the separate bedroom which is the separate hut used by children. The
accused asked that if the deceased wanted water
then she had better
come and have it in the bedroom where the accused was. Thereupon the
deceased said she would rather the daughter
let the question of water
be, she was going to sleep.

The following day of course it was discovered to the
horror of everybody else

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that the deceased had succumbed to the assaults
which she had received the previous night.

Although the plea by the accused of culpable homicide
has been accepted, it is important to give a short background as to
the type
of law that applies to the sort of circumstances obtaining
here.

Originally, that is before 1959, it appeared that deaths
occurring between spouses sometimes were brought about by provocation
and
such deaths while admittedly amounting to murder, it appeared
that because of the sort of peculiar situation in which married
couples
usually found themselves then the sentence which murder would
usually incur, namely, the death sentence, was not really proper. The
legislature therefore found it fitting to enact a law which while
acknowledging that the killing was unlawful and to all intents
and
purposes was murder, but yet for purposes of avoiding the imposition
of the death sentence, it should be treated as culpable
homicide.

This catered for situations where a man would find his
wife in adultery with another, and the husband because of anger
deliberately
and purposefully and with

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intent killed the encroacher upon his marital
rights. The result was that, that was murder because murder is
nothing else but homicide
executed with intent, and because the
provocative action of the paramour had angered the accused then it
was felt that he mustn't
be convicted of murder but rather of
culpable homicide, taking into account this provocation as an
important circumstance to that
end.

Therefore, then according to Proclamation 42 of 1959
section 3(i) it is provided that

"A person who (a) unlawfully kills another under

circumstances which but for provisions of this section
would constitute murder and

(b) does the act which causes death in the

heat of passion, caused by sudden provocation and before
there is time for his passion to cool is guilty of culpable homicide
only"

Under section 4(a) the word provocation is meant to

"Include insult or wrongful act, when done or
offered to an ordinary person, or in the presence of an ordinary
person, to another
person who is under his immediate care, or to whom
he stands in a parental filial or fraternal relationship".

I have no doubt therefore that the situation of the
accused comes neatly under

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this section because his daughter stands in filial
relationship with the accused and the daughter was, and not only one
but daughters
were insulted as prostitutes, including of course the
accused in an oblique manner.

Now coming to the submissions. Very neatly Mr Teele took
the Court through what amounts to mitigating factors in this matter,
indicating
that the accused is supporting four of his surviving
children including PW1, and PW1's own child (illegitimate child). He
indicated
that for a duration of upwards of thirty years of their
marriage the accused had never got involved in unlawful acts. One
other thing
which showed the accused to be remorseful of what he has
done is that he wept immediately on discovering that his wife had
died.
He cooperated with the police to the full, and confessed his
offence to the magistrate.

In this regard the accused could rather be treated or
looked upon not as a criminal but rather a fallen angel, and that as
far as
possible custodial sentence should be avoided, if only to
avoid polluting what otherwise seems an untarnished character in the
character
of the accused.

I do accept that the accused appears to be an
unsophisticated person. I agree

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also that the incident leading to the death of the
deceased was an unfortunate one. PW1 went a long way towards showing
the character
of her mother which was of an aggressive type, and she
went as far as to indicate that she herself felt threatened by her
mother
to the extent that she feared they might quarrel or rather she
was going to manhandle and assault her mother herself because of the
mother's behaviour.

Court has been asked to temper justice with mercy
therefore.

There is the case which was cited by learned Counsel,
namely S. vs Harrison 1970(3) SA at 686 which is authority for the
view that
justice must be done; but mercy not a sledge-hammer, is its
concomitant. I was also referred to S. vs V. 1972(3) SA at 614, which
in brief indicated that the element of mercy is a hallmark of
civilised societies, and that this does not mean that the court
should
have anything to do with maudlin sympathy for a criminal or
permissive tolerance of his misdeeds. It is an element of justice
itself

Well, while all this has been said and I having been
told that the accused now earns less than what he used to earn as a
mine-worker,
that now that he is a mere labourer he earns Seven
Hundred Maloti per month, he should nonetheless be given

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an option of a fine.

Faced with this difficult situation the Court felt
called upon to ask the Crown Counsel to express a view regarding
custodial sentence.

The Court at the back of its mind was alive to the fact
that what we have here in terms of the homicide amendment act that I
have
indicated, is murder tempered by this law in order to help an
accused person escape a hanging. That is all that this was intended
to do. But however learned Counsel for the Crown fought shy of giving
any help to the Court in this regard and contented herself
with
saying the accused must be punished. I have no doubt that the accused
has got to be punished; but how?

My assessor and I had a deliberation on this aspect of
the matter moved by the fact that the accused is remorseful, he has
got children
to look after and who are going to suffer if he goes to
prison or remains for a long time in detention or that he himself is
going
to get polluted despite that he has led an exemplary life for a
long

long time.

In the circumstances and bearing in mind what I have
said about this law and

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also that provocation is not a defence but just a
plea in mitigation, felt that the lightest sentence the Court can
impose is the
following :

That the accused be made to pay a fine of four thousand
(M4000-00) Maloti, or failing that be kept in prison for six (6)
years. Half
of this punishment is suspended for two years, on
condition that the accused be not convicted of a crime involving
violence to the
person of another, committed during the period of the
suspension.

The accused is further allowed a further six months
within which to pay the fine. This means that payment should be
effected by not
later than 9^th November, 2001.

My assessor agrees.

JUDGE 9^th May, 2001

For Crown :Miss Dlangamandla
For Defence : Mr Teele