CRI/T/36/81
IN THE HIGH COURT OF LESOTHO
In the Matter of :
REX
v
MASILO THABAKHOLO
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 8th day of March, 1985.
The accused appeared before me charged with the crime of murder, it being alleged that on the 7th June, 1981 and at Ha Selima in the district of Mohale's Hoek he unlawfully and intentionally killed 'Maseliane Seliane. He pleaded not guilty to the charge.
At the start of this trial Mr. G.N. Mofolo, counsel for the defence, relying on the provisions of sec. 273 of the Criminal Procedure and Evidence Act 1981, informed the Court that the defence was admitting the entire dipositions of P.W.6, 7, 8, 9 and. 10 as recorded in the proceedings of Preparatory Examination and there was therefore no need to call those witnesses. Miss Surtie who appeared for the crown in this matter accepted the admissions and the dipositions of P.W.6, 7, 8, 9 and 10 as recorded in the proceedings of Preparatory Examination were accordingly admitted as evidence before this Court. By agreement of counsel for the parties the following articles were/handed in as
exhibits from the bar.
Exh. A -for the Post Mortem Examination Report
Exh. 1 -for two pieces of a broken stick
Exh. 2 -for a red and pink dress and a whitish petticoat collectively.
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It appears from the evidence that accused is married and has his own separate house in the village of Selima's -a small village of about 8. families according to the evidence of P.W.3 and P.W.4. However, his wife has long deserted the accused. Although for his living he used to work on the mines, the accused has not been returning to the mines for some years and depends on P.W.1, his elder brother, for meals, washing, etc. He uses his own house mainly for sleeping purpose
According to the evidence of P.W.1, Lehlohonolo Thabakholo, on the evening of Sunday the 7th June, 1981, he, the accused, his (P.W.1's)
wife and the children were as usual in P.W. 1's house and peacefully chatting together. This is admitted by the accused in his evidence. As they chatted accused and P.W.1 were sharing a Sesotho beer from a mug,the size of a small can of castle beer. In his. evidence, the accused denied this and said there was a billy-can full of Sesotho beer which he was sharing with P.W.1 in the house. In fact according to accused's evidence at about 9.00 a.m. on that Sunday, he went to the home of a certain Papatlele in a neighbouring village where there was a stockfare.He had in his possession M2.00 out of which he used a little over 50c to buy beer which he was drinking before P.w.1 joined him at the stockfare. The beer he was drinking at the stockfare was a grape brew and Sesotho beer. The grape brew was selling at 20c per bottle while the Sesotho beer was selling at 10c a scale. At the time. P.W.1 arrived at the stockfare, he had already bought about 3 bottles of grape brew, which he consumed alone. On his arrival at the stockfare, P.W.1 paid money to buy beer which was shared by many people including.the accused himself. When they left Papatlele's place at sun set,he was drunk. P.W.1 was given a billy-can full of Sesotho beer, which accused himself was carrying on their way back home. It is this beer which he and P.W.1 were sharing in the latter's house that evening. While they were drinking, accused fell, drunk. He stood up and told P.W.1 that he had taken enough and would drink on the following day. It was then that he found himself fighting with P.W.I and did not know why it happened. After the fight, he left for the deceased's place intending to report that he had
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assaulted P.W.1. When he came into her house, he assaulted the deceased but dit not know why he did it
P.W.1 admitted that he knew a person by the name of Papatlele in his negtibouring village but denied any knowledge that there was a stockfare at Papatlele's on that Sunday nor did he go there at all. He was positive that the beer he was sharing with the accused in his house that evening was Just a mug full and not a billy-can full of Sesotho beer.
P.W.1 further testified that when had finished their beer, he told the accused that as he (PW.1) was going to work on the following day, he would like to retire to bed and the accused then left. He admitted that accused had strong drinking" habits and he knows him when he is drunk. Accused was, however, not drunk when he left his house that evening.
As he testified before this Courts,P.W.1 impressed me as a straightforward truthful witness. On the contrary accused was acting under the shield of his drunkeness and did not know too many things. As a witness the accused was not very impressive, I do not see anything wrong in P.W.1 going for a stockfare at Papatlele's,drinking there with accused and other people, bringing home a billy-can of Sesotho beer which he shared with the accused. I can find no good reason why P.W.1 should try to deceive the Court in this regard. I am prepared to accept his evidence as the truth and reject that of accused as false on this point. According to P.W.1, after accused had gone for almost an hour, he was already lying on his bedding when accused came back and violently knocked at the door. On hie (PW.1's) instructions his wife opened for the accused. As he entered into the house accused said; "Lehlohonolo, I am already here!". Before P.W.1 could ask what the matter was, accused grabbed him and they started struggling physically till they both fell on the fire place and broke a glay pot in the house.. P.W.1's wife" tried to intervene but accused kicked her and she ran out of the house. The struggle continued till they
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both got tired and stood staring at each other. Accused then picked up a three legged iron pot which he threw at P..W.1. The pot got stuck on P.W.1's head with its legs and could not remove. Accused then approached P.W.1 and unsuccessfully tried to pull the pot off his head and as he did accused was saying: "My brother, am I really killing you?" When he could not pull the pot off P.W.1's head accused went out of the house. P.W.1 remained alone in the house struggling to pull lot of blood was flowing from his head.
P.W.4, Tsietsi Mokuoane,testified that on the evening in question, he was already in bed when P.W.1's wife came to him. and made, a certain report following which he proceeded to P.W..1's house. On arrival, he found P.W.1 lying prostrate in his house. He was bleeding from the head. P.W.4 then went to report to the deceased who was the chieftainess in the village. After receiving the report,the deceased said there was. nothing she, could do as she was already in bed.P.W.4 then returned to his house.He had hardly returned to his house when P.W.4heard screams of women from the direction of the deceased's home. He immediately, returned to deceased's place. He found nobody in deceased's house. When he went out P.W.4 noticed the deceased at her ash-heap,about 6 paces from the house. Deceased was injured and pleaded with him for assistance. P.W.4 took the deceased on his shoulders and carried her into his house which was about 60 paces away. He closed the door behind him.
Shortly after they had entered into the house accused arrived and told P.W.4 to take the deceased out of the house. P.W.4 refused saying the deceased was at her own house. Accused then threatened to kill P.W.4 if he did not get the deceased out of the house." He pushed the door from outside while P.W.4 held it tied from inside. Eventually P.W.4 got. tired and let go his grip on the door. As the door opened accused came in and'
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P.W.4 went out to raise ah alarm. He raised the alarm by going to report to one Seqhai and Tente Mpheulane, a police officer who was in the village at the time. The three went to P.W.4's place where they found the deceased and the accused outside the house. Accused was belabouring the deceased with a stick all over the body. As the deceased was not making's sound of any kind, P.W.4 concluded, that she was already dead." He and the other men in his company Just looked on and did nothing to stop the accused. P.W.1 told the Court that he was in fact afraid of the accused, who is a ruffian After he had satisfied himself, accused left the deceased and turned to P.W.4 saying: "I have killed that friend of yours," Accused then left. Seqhai and Mpheulane also left saying they were going to report to the chief of a neighbouring village.
I must say, I find it rather incredible that three men, including a police officer, could find the accused brutally assaulting the deceased in the manner described by P.W.4 and yet none of them was prepared to do anything to stop the accused. Perhaps this goes a long way to confirm P.W.4's evidence that accused was a ruffian apparently feared by many (including the policeman Mpheulane) in the village.
The evidence of P.W.2, 'Matheko Teba, a 16 years old grand-daughter of the deceased, was that on the night of 7th June, 1981, she and a small child were sleeping with the deceased had already put off the light when the door opened and the accused entered into the house in which they were sleeping. As he entered into the house, accused went to where the deceased was sleeping and started beating her up with the stick -Exh. 1. This is not disputed by the accused and I would have no reason to disbelieve it. While accused was assaulting the deceased, P.W.2 ran out of the house and went to report to P.W.3 and then to one 'Matsepang,
P.W.3, 'Matiang Teba, confirmed P,W.'s 2's evidence in that the latter came to report to her that accused was assaulting the deceased.. P.W.3 was at that time already way.....
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on the way to deceased's house following the screams she had heard coming from the direction of deceased's place. On arrival at the deceased's place, P.W.3 found accused assaulting the deceased with the stick Exh. 1 in the house. She caught hold of accused's stick in an attempt to disarm him. Accused pushed her away and she fell on the floor. When she got up accused was dragging the deceased out of the house. Accused said he was going to kill the deceased as she was a witch. P.W.3 caught hold of the deceased and tried to pull her back. Accused also dragged the deceased away. When they came to the ash-heap outside deceased's house, accused left the deceased and cuaght hold of P.W.3 by the arm. He dragged her towards P.W.1's house saying since she was preventing him from killing the deceased, P.W.3 should go and see what he had done at his home.
When they came to accused's parental home, which is P.W.1's home, P.W.3 found P.W.1 lying prostrate in the house. He had sustained injuries. Accused then looked for a knife with which he said he was going to. finish up the deceased whom he referred to as a witch.
It. may be mentioned at this "juncture that all the witnesses, including the accused himself in the witness box denied that the deceased was known to be a witch during her life time.
When he could not find a knife, accused left and P.W.3 followed him out intending to return to the deceased. She could not find the deceased where she and the accused had left her (she had of course been taken away by P.W.4). P.W.3 then went to a neighbouring village to ask for assistance. She returned with some men from that village. On the way back they were joined by the police officer Mpheulane who told them that the deceased was already dead and he took them to P.W.4's place where the body of the deceased was lying on the fore court.
P.W.5, Liphapang Janki, is married to accused's sister and therefore his brother-in-law. He testified that on the night of 7th June, 1981, he was already in bed when accused came and woke him up saying he should
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go and see his (accused's) own brother whom he had killed. P.W.5 accordingly went with the accused to P.W.1's house where he found that P.W.1 had sustained injuries. Then accused disappeared. Shortly after, P.W.4 arrived and said he was asking for help as he had hidden the deceased but the accused was interfering. P.W.5 and P.W.4 joined by the policeman, Mpheulane, and one 'Malidia proceeded to P.W.4's place. On arrival at P.W.4's place they found accused belabouring the deceased with the stick Exh.1. P.W.5 confirmed the evidence of P.W.4 that deceased was not uttering a sound of any kind as accused was beating her up and he too concluded from that that the deceased was already dead. In as far as it is matterial, the evidence of P.W.5 was confirmed by P.W.6, 'Malidia Ntsebeng.
P.W.8 D/Tpr Letsoepa testified that on 8th June,1981 he received a report following which he proceeded to P.W.4's place where he found the dead body -of the deceased. The body was dressed in Exh. 2. He examined the body and observed that it had sustained multiple injuries on the head, right upper arm, left elbow, left arm, left calf, left leg and there were bruises all over the body. Next to the body he found two broken pieces of stick -Exh.1 which the accused identified as his property. He took possession of Exh.1. Accused gave him a certain explanation following which he cautioned and charged him of the murder of the deceased. The body of the deceased was then conveyed to Mohale's Hoek mortuary in a police vehicle by P.W.9, D/L/Sgt. Mothibeli, who told the Court that it sustained no additional injuries on the way.
On 11th June, 1981 P.W.7, 'Maseepheephe Matete, identified the body, as that of the deceased, before P.W.10, Dr. Heathcote, the medical officer who performed a Post Mortem Examination on the body of the deceased and compiled the report -Exh.A. In his evidence P.W.10 testified that during his external examination on the body of the deceased, he noticed extensive bruises on the best and the abdomen, three (3) cuts on the head, many broken ribs, a frature on the
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left upper arm, left forearm and left leg. When he made interanl examination on the body, P.W.10 found a total of thirty-one (31)
fractures of the ribs.
The liver was extensively reptured by the fractured ribs. There was 2 to 3 litres of blood in the abdomen. He formed the opinion that death was due to bleeding from the liver and stick such as Exh.1 could have been used to inflict the injuries found on the body of the
deceased.
It is common cause that on the night of 7th June, 1981, the accused brutally assaulted the deceased with the stick Exh.1 -and the
deceased had done nothing to Justify this assault. The only question for the determination of Court is whether or not there was a subjective intention (be it direct or legal) on the part of the accused to kill the deceased. If I understand correctly, the defence is raising the special defence of intoxication and contends that the accused had taken a lot of beer both at Papatlele's stockfare and in P.W.1's house. The accused was therefore so drunk
that at the time he assaulted both .P.W..1 and the deceased, he did not know what he was doing. That being so,
the accused, cannot,in law be said to have had the requisite subjective intention to kill at the time he perpetrated his assault on the deceased.
As I see it, the law is that in order to succeed on the special defence of intoxication, the defence must prove on a balance of probabilities two requirements. Firstly, that the state of accused's drunkeness was < brought about involuntarily or that it amounted to insanity. Secondly, that the accused was so drunk that he did not know that what he was doing was wrong or did not know what he was doing. -vide sec. 2(2) of the Criminal Liability of Intoxicated Persons Proclamation No. 60 of 1938 (Laws of Basutoland Vol. II 1960 Ed.) which provides :
"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
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caused 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 act or omission."
In his own evidence the accused testified that on Sunday the 7th June, 1981, he became drunk as a result of his voluntarily drinking beer first at Papatlele's place and then at P.W.1's house. There was no suggestion that his drunkeness (if any) came about involuntarily.
P.W.1 who is accused's own brother and lives with him and therefore knows the accused when he is drunk told the Court that accused was not drunk on the night of 7th June, 1981. His evidence was supported by that of P.W.5, who is accused's own brother-in-law. There. is also the evidence of P.W.1 who told the Court that when he hit him with the pot which got stuck on his head accused-showed concern and tried to pull the pot. off P.W.1's head uttering the words : "My brother, am I really killing you." This in my view clearly shows that accused still had his sober senses with him and relised that his act was dangerous to P.W.1's life. This is strengthened by the evidence of P.W.5, who testified that accused came to his house, woke him up and told him to go and see P.W.1 whom he had killed. Indeed, the accused himself told the Court that after he had assaulted P.W.1, he went to deceased's house intending to report this incident. If accused were to be believed on this point then on his own evidence it clearly shows that he was able to distinguish that by assaulting P.W.1, he had committed a wrongful act. On arrival at the deceased, he found her sleeping with P.W.2 and a child. He, however, admittedly picked on the deceased and brutally assaulted her in the manner described by P.W.2.
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All this does not give a picture that the accused was a person who did not know what he was doing on that night or that he was an insane person. Even if it were to be accepted that the accused had had a lot to drink at Papatlele's place on the day in question and was therefore drunk, I am not convinced, on the evidence, that he was so drunk as not to know what he was doing or that he was insane. In the circumstances I take the view that the defence of intoxication cannot succeed in this case.
The evidence that accused was seen indiscriminately delivering repeated blows on the deceased with the stick -Exh. 1 is supported by the medical evidence according to which a total of not less than 31 fractures of the ribs, fractures of the limbs and other serious injuries were found on the body of the deceased. In inflicting such injuries the accused was aware that death was likely to result and he persisted regardless of whether or not the deceased died. I am satisfied that on the evidence the legal intention has been proved beyond a reasonable doubt and the accused is accordingly found guilty of murder as charged. My assessors agree.
B.K. MOLAI
JUDGE
8th March, 1983.
For the Crown : Miss Surtie
For the Defence : Mr. G.N. Mofolo.
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CRI/T/38/81
EXTENUATING CIRCUMSTANCES
Having convicted him of murder, it has to be
determined whether there are any factors connected with the commission of the offence which tend to reduce the moral blameworthiness of the accused. There is evidence that the accused had been drinking on the day in question. Even if the accused was not so drunk as to be insane or incapable of knowing what he was doing his mind may well have been affected to some degree by the liquor he had consumed.
Furthermore, there is no indication, on the evidence as a whole that the accused premeditated the killing of the deceased and that in itself seems to be an extenuating circumstance -Rex v. 'Mota Phaloane 1980 (2) LLR 260 at p. 301. In the result I come to the conclusion that extenuating circumstances do exist in the present case and the proper verdict should therefore be that of guilty of murder with extenuating circumstances.
My assessors agree.
SENTENCE:
Eleven (11) years imprisonment.
8th March, 1983
