CRI/T/37/84

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

vs

LITHA
MACHITJE

JUDGMENT

Delivered
by the Hon. Mr. Justice M. P. Mofokeng on the 13th day of November,
1985

The
accused is charged with the crime of murder: in that on or about the
30th July 1984 at or near Soloane in the district of Butha-Buthe
he
intentionally and un­lawfully killed one 'Maleupa Khechane. To
this charge he pleaded not guilty.

There is
no evidence deposed by the Crown to what happened prior to raising of
an alarm by P.W. 4 when she heard the deceased fall
down. The accused
says that he asked Matsoenkane when he was going to pay him, who then
said he would pay him at a later stage,
but the deceased replied that
accused should not be paid and he went further to scold at him saying
that he was a very bad boy.

He then
rushed at him. The accused ran away. Outside his home he picked up an
axe and knocked the deceased once with it. To go back,
'Masehloho
emerged and saw the deceased having fallen and she saw the accused
attacking the deceased with an axe and she saw the
accused hitting
the deceased three times and the deceased was then

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armed. A
number of witnesses also have said chat they saw the accused assault
the deceased who had already fallen down.

The
accused says that he was acting in self defence, he only hit the
deceased once, but practically all the witnesses who gave evidence

here and some of whose evidence has been admitted say they saw three
wounds. The Doctor saw three wounds. According to the Doctor's

report, which was also admitted, the cause of death was a skull
fracture with extensive brain damage and that suggests there was
not
just a tapping with an axe. He goes further to say there were two
deep lacerations on the left cheek and one deep laceration
on the
left top of the skull and yet the accused says he only hit the
deceased once and on that point his evidence is not accepted.

I shall
accept his evidence that he had been chased; that there had been an
altercation between him and the deceased but what 'Masehloho
saw was
the third episode of this fight. The first was the chasing by the
deceased of the accused. The second was the causing of
the injury at
the back of his head. Then the accused armed himself and attacked the
deceased even while he had fallen. Now the
question to be decided by
this Court is easy. It is whether the accused has exceeded the bounds
of self-defence, and if so, what
crime has he committed. The
witnesses who gave evidence and whose depositions have been admitted
say they saw the accused assault
the deceased who was already fallen
on the ground unarmed. On that point they are almost unanimous and
that is what is called corroboration
in its simplest form. He,
therefore, in my

3

view (and
my assessors agree with me) in hitting a defence­less person the
accused overstepped the limits of self defence. He
should have ceased
once he saw that the deceased was no longer armed. On this point not
a single question was directed to any of
the witnesses as to whether
the deceased possessed a knife or when his body was searched a knife
was found. I have already said
the accused has exceeded the bounds of
self-defence. Now what crime has he commited??

The
intention to commit an offence such as murder can be gathered from
many factors such as the weapon used, how it was used. We
have seen
an axe, its blade is not very sharp. It was used not once but three
times to cause extensive injuries. An axe is a dangerous
weapon yet
it was used viciously following the description of the Doctor. The
intention of an accused person in crimes such as
murder can be
gathered also from parts of the body where injuries were inflicted.
Here, blows were not aimed at the deceased's
legs or hands but they
were aimed at his head; the most vulnerable part of the body. These
facts make me come to the conclusion
that when the accused assaulted
the deceased he had an intention to kill. He is found guilty of
murder. However, there are extinuating
circumstances. There is not a
single witness who denies what the accused says happened prior to
this incident and his own father
admits that Matsoenkane owed the
accused some animals. The deceased came into the scene by saying
Matsoenkane should not pay the
accused. That was not a concern of
his. That must have caused the accused some anger. That was not all.
The deceased chased the
accused about and caused him some injuries.
This evidence was suppressed until

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revealed
by the accused himself.

SENTENCE:

There comes a moment when a man becomes very sorry for what he has
done. The accused's father says the accused showed remorse,
but the
viciousness with which this assault was inflicted is frightening. A
human being is a creature of God. Nobody is allowed
to take away his
life unless by due process of the Law. It is brought home to you that
you cannot kill especially where you are
no longer in a dangerous
situation. You therefore have to be punished although your real
punishment will begin when your prison
sentence ends. Your
fellow-villagers will run away from you and call you a murderer.

The least
sentence in the circumstances to which I can sentence you is one of
five (5)

years
imprisonment.

My
assessors fully agree.

JUDGE

13th
November, 1985

For Crown
: Mr. Seholoholo

For
Defence : Mr. Mofolo

CIV/A/12/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MOTHOBI
TLALI Appellant

V MALINEO
TLALI Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 12th November, 1985.

In this
matter an action for divorce had been instituted in the Pitseng Local
Court for a decree of divorce by the present appellant
who is the
husband in the matter, and to whom I shall refer as such hereafter,
on the grounds of his wife's malicious desertion
of him.

There is
one child of the marriage, a boy who is in the custody of the wife
and who has remained there since their marriage broke
up some ten or
eleven years ago. There is no dispute about his custody and I propose
to make an order eventually, awarding that
custody to the wife.

The Local
Court granted the husband a decree of divorce on the grounds of
malicious desertion, but ordered him to leave all the
property of the
matrimonial estate including the house, field and cattle with the
wife. The husband appealed that order to the
Tsifalimali Central
Court which found that there had been no sufficient proof of a
desertion by the wife of the husband and set
aside the decree of
divorce which had been granted in the Local Court.

A further
appeal to the Judicial Commissioner's Court by the husband met no
success and the order remained as made by the Tsifalimali
Central
Court. With leave of the Judicial Commissioner a further appeal to
this Court has been made and has been argued before
me today by
counsel for the husband, the wife appearing in person. It emerges
from what I have been told by the parties that the
property of the

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matrimonial
estate consisted of the house with out-buildings on one site which is
presently registered in the name of the husband,
a field which is
also registered in the name of the husband, and both of which are in
the possession of the wife.

The
husband for his part has nine head of cattle, some blankets, tools
and kitchen utensils and site and a house in which he has
installed
and where he maintains himself and his second customary wife. It is
apparent as well that the wife maintains herself
and her child by the
produce of the field which she farms witout any other assistance from
the husband. He for his part is employed
in the Republic of South
Africa as a miner, and so has his own means of support in the form of
wages. He also has a home as I have
already indicated and some cattle
which he maintains.

The
parties have now indicated to me that they are content that the
matter should remain as it is, but certainly that there should
be a
decree of divorce between them. On that latter point, I am satisfied
that there had been no appeal by the wife against the
decree of
divorce by the Local Court and rightly or wrongly, that decree should
not have been interfered with by the Central Court
or by the Judicial
Commissioner's Court, since no appeal had been brought against it. I
say rightly or wrongly in the sense that
it may well have been
granted by the Local Court on insufficient grounds, but in the
absence of any appeal against such an order,
there was no
jurisdiction to interfere with such a decree of divorce on the part
of the Central Court of the Judicial Commissioner's
Court.

The
husband has indicated in this Court that he seeks the decree of
divorce and his purpose in bringing the appeal was in order
to
reinstate the decree of divorce granted by the Local Court. The wife
for her part has indicated that her attitude in the Central
Court and
in the Judicial Commissioner's

3

Court and
in this Court as well has been and remains that, since she has been
awarded the property of the matrimonial estate, she
is content that
the decree of divorce should be reinstated. I am satisfied that for
that reason alone if not for the reason that
there wag no appeal
brought from that order of the Local Court that it should be
reinstated.

There has
been some give and take in this Court by both parties and a
satisfactory solution has been arrived at in regard to the
property
of the matrimonial estate. The husband is content that the site with
the house upon it where the wife now lives with her
son, should
remain in her possession as well as the field which she now farms.
Both these properties are registered as the property
of the husband
but I will order that these properties should remain in the
possession of the wife for as long as the husband lives
and that
thereafter the succession will be determined by the customary law,
that is, his son of his first marriage will inherit
that property.
The produce of that field which the wife will enjoy will be
sufficient for her maintenance and for that of her son.
If it should
turn out ultimately that the son may require higher education or
unusual circumstances arise which entitle the son
to further
maintenance, then that will be a matter to be determined as at that
date. At the present time, it would seem that the
produce of the
field will be sufficient for the joint maintenance of the wife and
the son as has been the case for the past ten
years.

He for
his part will remain in possession of his cattle, his blankets and
tools and everything else of which he is now presently
possessed
including the site and the house which he has built upon it for the
occupation of himself and his second wife.

My order
therefore is as follows: 1. The decree of divorce granted by the
Local Court is reinstated. 2. The house and

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kitchen
on the site registered in the name of the plaintiff and which is
presently occupied by the wife will remain so registered
but the wife
will have the right to possession of that property until her husband
dies, whereupon its succession will be determined
by customary law,
3. The field which is also registered in his name, will remain so
registered but the wife will be entitled to
the possession of that
field and the right to farm it for so long as the husband lives
whereafter the succession of it will be
determined by customary law.
4. The husband will remain in possession of all the items, of cattle,
tools and personal possessions
and the site and the house which he
presently occupies as his own property. 5. In view of the given and
take that has taken place
on this appeal I am satisfied that there
should be no order for costs in this Court or in any of the lower
Courts and I accordingly
so order. 6. The custody of the child is
awarded to the wife,

D.S. Levy

Acting
Judge.

12/11/85

For
appellant: Mr. M.Ramodibedi

For
respondent: In person.