CRI/T/71/2003

IN THE HIGH COURT OF
LESOTHO

In the matter between:-

REX

vs

TLAPANE
TSOEU
‘MATSOEU TSOEU

JUDGMENT
Delivered by
the Hon. Mrs Justice A. M. Hlajoane on the 2^nd

May, 2005.

The accused appeared before me
charged with the crime of murder.
It being alleged that on or
about 7^th December, 2002 they both
unlawfully and with
intent to kill, did assault one Lipalesa Theko
and inflict a knife
wound upon her from which she died at Queen II
Hospital on the 9^th
day of December, 2002.

Both accused pleaded not guilty
to the charge in accordance with
counsel’s instructions and such
pleas of not guilty were

accordingly
entered. The Crown led evidence of eight (8) Crown
witnesses. The
first witness, Rethabile Theko who happened to be
deceased’s
daughter, told the Court that accused before Court were
her father
and grandmother. To use her own words, she referred to
accused 2
as the mother to her father, accused 1.

P.W.1, a fifteen year old girl
in her Form A class, proceeded by
showing that, as she was playing
at home with others on the 7^th
December, 2002 she saw
people gathered at one place. She
approached the crowd and found
both accused assaulting the
deceased. Accused 2 was insulting the
deceased, calling her a
“Letekatse” and also assaulting her
with a shoe, whilst accused 1
was kicking the deceased with his
shoes. The accused left the
deceased on the ground breathing with
much difficulty. Deceased
was taken in a wheel-barrow to her
maiden home by his brother,
Thabo. She was taken in police van to
hospital as deceased’s
brother had called the police.

According to P.W.1 the deceased
was on that day coming back
home from a clinic from bandaging
injuries she had sustained the
previous month the 18^th
November, 2002. The witness showed
that accused 1 had during
November, 2002 stabbed the deceased
with a knife at the back.

Though
this witness did not witness the stabbing she nonetheless
showed
that she came to know that her father had followed the
deceased to
a shop and stabbed her with a knife. She heard about
this as
deceased’s mother ‘Matang-fusi asked the deceased as to
what
had happened to her as she came home carried in a wheel-
barrow.
The deceased had come home brought by some two men
Rapholoana and
Bahlakoana who claimed to have found her fallen
on the way crying,
and had sustained 3 stab wounds.

In answer to questions put to
her by the defence, P.W.1 pointed out
that accused 1 used to drink
a bit too much and was in the habit of
assaulting the deceased
whenever he was drunk. That was the
reason why the deceased was no
longer staying with accused 1 but
stayed at her maiden home. P.W.1
also had left accused at the
rented flat and stayed with the
deceased. It was after the witness
had indicated to the Court that
she did not know the cause of the
fight in December, that the
Defence revealed that it was because
the deceased was refusing to
hand over accused 1’s hat.

P.W.2 Pontso Theko told the
Court that she was related to the
deceased, their mothers being
sisters. She too stayed at Mazenod
Ha Paki. She was aware that the
deceased had left home for the
Clinic to bandage her wounds on the
7^th December, 2002. Before

the
deceased left for the clinic she had asked the witness to meet

her half way on her way back as she feared accused 1 who
had
threatened to kill her.

Same as P.W.1, this witness too
never witnessed any stabbing by
accused 1. According to P.W.2,
sometime in November of that
year, the deceased arrived home
having sustained three stab
wounds at the back. Accused 1 came in,
as the deceased was
telling them that the deceased had stabbed
her. The witness had
seen accused 1 come following the deceased to
her home asking if
his victim had yet not died. P.W.2 showed that
she heard accused
1 claim that he was the one who had stabbed the
deceased, and
further said he wanted to stab the deceased to
death, but failed to
stab her further as P.W.2 and those in her
company raised alarm by
making noise.

Unlike P.W.1 who had said her
attention was drawn to the accused
and deceased’s fight by
seeing people gathered at one place, P.W.2
said that she went with
P.W.1 and one Kananelo to go and meet the
deceased from the
clinic. They had met the deceased and accused
1 on the way
pointing fingers at each other whilst also insulting
each other.
The deceased had sat down, maybe to rest, and
accused 1 started
assaulting her with a shoe on the head which he

had
taken from deceased’s foot. It was a three quarter heeled shoe.

As she was thus being assaulted,
P.W.2 heard deceased insult
accused 1 by his mother. It had not
been explained where accused
2 came from, but the witness pointed
out that accused 2 also came
and with the other shoe from
deceased’s other foot started
assaulting the deceased with it.
Accused 2 had first asked accused
1 if he was pleased with the
deceased, a prostitute, insulting her
(accused 2). Accused 1
started kicking the deceased with his boots
and when all these
happened, the deceased was still sitting down,
but fell to the
ground as she was kicked.

It was only this witness who
said she saw accused 1 not only using
his hands and shoes to
assault the deceased, but that accused 1
even threw stones at the
deceased. And that when all these assaults
took place, the
deceased had been lying on her face, but both
accused turned her
up and continued throwing stones at her.

I found the attitude of the
people of Ha Paki to have been very
funny. I am saying that
because though they had already gathered
at the scene, we have not
been told that they did anything but just
watched without
intervening or seeking for help as both accused
were assaulting
the deceased. The deceased was left lying there by

both
accused. She was later taken home in a wheel-barrow and
when
police arrived, they conveyed her in their vehicle to
hospital.
According to this witness, the deceased was bleeding
from her
mouth, ears and nose after the assault.

Under cross-examination, it was
put to the witness that the
deceased bled from her mouth because
accused 1 had struck her
with a fist and P.W.2 answered in the
affirmative.

Evidence of P.W.3 Mokhitlinyane
Shai was to the effect that he
was a member of LMP who has since
retired, but was still in active
service in 2002. He was working
at Mabote Police at the reception
on the day in question. He drove
to Mazenod after he had received
a report by telephone. He was a
driver. They drove to Mazenod
Ha Paki and found a woman lying on
the floor and was in a critical
condition. The witness said the
woman was quite helpless and
could not even talk. She was foaming
from her mouth.

P.W.3 said he did not examine
the woman as she was still alive and
could only be examined by
another woman. She was covered with
a sheet and taken to hospital
in police vehicle. The witness had
enquired about the person
responsible for the assaults and the
information led him to
accused 1. He found the accused at his

home,
cautioned him and charged him of assault with intent to do

grievous bodily harm. P.W.3 had found an okapi knife as he
searched
accused 1, and seized it. He also seized deceased’s shoe
which
also was found in accused’s possession. This witness made
it
clear to the Court that he was not the investigator of this case
as
he only worked at the reception.

The cross examination to this
witness led him into saying that
though he never mentioned that
the deceased never sustained any
further injuries on her way to
hospital, since they travelled on a
tarred road and never met with
any accident there was just no way
the deceased could have
sustained any further injuries. In answer
to the question why he
had seized the knife, P.W.3 replied by
showing that it was because
it was not the first time that accused 1
stabbed deceased with a
knife. He did not have personal
knowledge of that fact but relied
on the information he had
received. The cross examination led him
further to say that on the
previous assault, accused 1 was only
arrested and charged but
never taken to Court.

P.W.4 D/Tpr Makhele, a member
of LMP who was stationed at
Mabote Police in 2002, informed the
Court that he was the
investigator of this case. He met the
accused at Mabote Police

Station
and charged them of murder. He charged them of the
murder of the
deceased following the information in his possession
as the
accused never gave him any explanation. According to him
the
accused were taken to Court and remanded into custody.
His
investigations revealed that both accused had assaulted
the
deceased with their hands, the deceased who already had
sustained
injuries from previous assaults.

It would be worth mentioning at
this stage that the Court might
have felt that P.W.4 had not done
a proper job in his investigations
because the witness was even
asked if he enjoyed intoxicating
beverages and his reply being,
“yes I do.” He was further asked if
he had been sober on the
day he investigated his case, the answer
being, yes. All these
were asked because the witness had said he
did not know why the
accused were at the charge office, yet he was
the investigator of
the case.

Evidence of P.W.5 Teboho Mosese
was admitted by the defence
after it had been read into the
machine to form part of the record.
This witness had shown in his
statement that he had been called by
one ‘Manturu to go at
‘Mapakiso’s place and assist the deceased
whom it was reported
was being assaulted by accused 1. P.W.5
said he rushed to that
place as he had on several occasions seen

accused
1 assaulting the deceased badly. The witness did not get
to
‘Mapakiso’s place as he met the deceased on the way being
carried
in a wheel-barrow by Thabiso Lebokollane and Montsi
Theko. He
assisted them till they got to deceased’s place and he
left for
his place.

The other admitted evidence was
that of P.W.6 Thabo Theko who
was identifying witness. He
identified the body of the deceased
before the doctor could
perform a post mortem examination on the
dead body. The deceased
was his younger sister. According to
him deceased died at Queen II
on the 9^th December 2002.

Dr Syed Muhhamad Adnen gave
evidence as P.W.7. he performed
post-mortem examination on the
body of the deceased. He formed
an opinion as he examined the body
on the 17^th December, 2002
that the person had died
some nine (9) to eleven (11) days prior to
his examination. The
body had two penetrating wounds on the left
scapular region.
According to the doctor death was due to those
penetrating
injuries to the left side of the deceased’s chest. He
opened the
chest and discovered that the left lung had a collection
of blood
resulting from the penetrating wounds. There was also a
severe
congestion of the left lung. He showed that the collection
of
blood in the lung cavity caused that congestion.

This
evidence further showed that the wounds were not fresh. The
doctor
made a confession and pointed out that there had been an
oversight
on his part of not taking dimensions of the wounds. He
said this
was due to pressure of work. The doctor further showed
that, the
wounds were at the back, on the left shoulder blade. That
a
metalic object must have been used to cause the injuries.

The cross examination to this
witness revealed that the deceased
might have not received a
proper treatment at the clinic causing the
deceased to develop
some complications. He showed that the
collection of blood was
moderate as the flow was slow but the
person may have stopped
bleeding but the blood remained in the
lung cavity causing the
collapse of the lung. He concluded by
showing that to his
observation, the external injuries were not
evident except for the
stab wounds.

The last witness, P.W.8
Mphonyane Moerane told the Court that
she stayed in the same
village as the accused. She brewed and sold
liquor at her place.
She was still at her home selling beer on the 7^th
December,
2002 when ‘Mapakiso approached her to go and assist
as accused 1
was assaulting the deceased. The witness and other
people who had
been drinking at her place rushed to that spot only

to
find the deceased in a toilet and accused 1 standing outside the

door of that toilet.

The deceased must have run into
that toilet to hide from accused’s
assaults because P.W.8
continued in her evidence and said, one
Mohapinyane had approached
accused 1 and asked him not to
assault the deceased. Accused 1 in
reply had said he was not going
to assault her but just wanted to
talk to her. How could
Mohapinyane say those words if accused 1
had not started
assaulting the deceased already. This witness had
rushed to the
scene because she had been invited to go and
intervene.

When P.W.8 saw accused 2
approach the deceased, she thought
she was going to intervene as
according to this witness, accused 1
was in a habit of brutally
assaulting the deceased. The word used
by this witness was
“khakhatha” and this word in Sesotho connotes
severely
assaulting someone. It’s different from saying “otla”
which
is milder.

Accused 1 had taken one of
deceased’s shoe leaving her with only
one shoe. The defence
counsel had objected to the evidence that
showed that accused 1
was in the habit of assaulting the deceased.
His basis for that
being that accused 1 was never charged of those

assaults.
He was overruled on that because the witness was saying
what she
knew. It is not every criminal activity that is always
taken
before the Courts of Law. That fact that it was never taken
to
Court should not be taken to mean it never happened.

The witness was still moving to
and fro between her home and the
place where the fight took place
as she was also busy selling beer,
and had to keep on checking on
her customers. She could
therefore not have seen everything that
took place between accused
and deceased. But she could see that
accused 2 was only using her
hands to assault the deceased, whilst
accused 1 was kicking her all
over the body.

P.W.8 had seen the two stab
wounds sustained by the deceased on
her shoulder blade. Deceased
showed her the wounds as she had
visited this witness for
drinking. The witness came to know that
accused 1 was responsible
for those wounds as they were
discussing with the deceased.
Accused 1 kicked the deceased all
over including on the injuries
she had sustained. The deceased was
from bandaging her wounds when
the accused assaulted her.
Accused 1 kicked the deceased till she
lay motionless on the
ground with her eyes wide opened without
blinking.

According
to this witness, as accused 1 was kicking the deceased,
accused 2
stood aside and encouraged accused 1 to kill the
deceased. The
witness even heard accused 2 saying she would
bury the deceased
after accused 1 would have killed her. Both
accused left the
deceased there and went away. But what surprised
me was that
people had already gathered at the scene and even
witnessed two
people assaulting the deceased but no one bothered
to intervene.
Would it be because, as two of the Crown witnesses
said, it had
turned to be a regular spectable of that couple.

The cross examination to this
witness suggested that in fact the
fight had started at the
toilet. This confirmed my observation that
the deceased must have
run into that toilet for safety. P.W.8
informed that accused 1 was
going to say that the fight started at
the toilet. But later it
was said to the witness that accused 1 never
fought the deceased
at the toilet. He was then contradicting
himself when he realized
that it would not at that stage be said he
was defending his
mother as he said, or asking the deceased about
his hat.

It came out from this witness
that in fact, accused 1 had only been
staying with deceased as
husband and wife but were not married.
This to me sounded a bit
sad because as P.W.1 was giving her

evidence
she referred to accused 1 as her father.

The defence at the close of
prosecution’s case applied for the
discharge of the accused as
they felt there was no evidence that
accused 2 killed the
deceased. Their contention being that accused
2 only acted in self
defence and that even in that defence she never
exceeded the
limits. That the prosecution failed to show that
accused acted
unlawfully as she only jubilated as deceased was
being assaulted.
As for accused 1, it was said he only acted in
defence of his
mother. The argument further showed that the
crown had led
evidence which was contrary to the indictment. The
crown having
failed also to prove any intention and unlawfulness.

According to the defence, there
had been no evidence placed
before the Court that accused 1 was
aware of the injuries on the
deceased when he assaulted her on the
day in question.

In answer to this application
for discharge the crown’s attitude
was that there was no
evidence that it was the deceased who started
the fight, so that
it could not be correct to say that accused 2 acted
in self
defence. The position obtaining was that, accused 2 acted in
concert
with accused 1 as she associated herself with accused 1’s
acts
as she was heard saying ‘kill her I will bury her’. It was said,

even
if accused 1 could be taken to have defended his mother but
he
went overboard, there was no proportionality in what he did.

On the question of having led
evidence which had been contrary to
the indictment, the crown’s
response was that since the indictment
said on or about 7^th
of December, in terms of section 154 (2) (a) of
the Criminal
Procedure and Evidence Act of 1981 the previous
occasion when
deceased was stabbed on the 18^th November, same
year,
fell within the 30 days period allowed by statute.

After listening to argument on
both sides the Court rules that, there
was a case for the accused
to answer. Accused 1 was the only one
who decided to go into the
witness box to testify.

Accused 1 told the Court that
they were staying together with the
deceased as man and wife
though not legally married. P.W.1
Rethabile Theko was their
daughter who knew him so well.
Accused 1 and the deceased had
separated each staying at his/her
home. According to the accused,
the deceased left because she had
said she was going for work but
was still coming back home in the
evenings.

On the day in question, accused
1 had been at a drinking place

when
he noticed the deceased going into a toilet. He went nearer
that
toilet and waited for the deceased to come out. It should be

remembered at this juncture that, this was the stage that P.W.8
said
she was called to the scene by ‘Mapakiso to assist as
accused 1 was
assaulting the deceased in the toilet. P.W.8 also
said when she got
there the deceased was in the toilet and accused
1 was the only one
standing at the toilet door.

Accused 1 said he asked the
deceased when she came out of the
toilet to bring back his hat. It
was not a peaceful talk and
Mohapinyane even asked accused 1 to
leave the deceased alone.
But P.W.8 said Mohapinyane asked accused
1 to leave the
deceased whilst she was still in the toilet. He was
not even
challenged on this. Accused 1 took away deceased’s
shoe, and
said was going to give it back in exchange for his hat.
Accused 1
had said he left immediately after that only to turn
back when he
realized that the deceased was assaulting his mother.
We have not
been told as to where accused 1’s mother had been
all that time or
where she had come from.

Accused 1 only kicked the
deceased once when he realized that his
mother was already
bleeding from her forehead. The deceased fell
to the ground as she
was kicked and accused 1 left. He denied ever
stabbing the
deceased with a knife during the month of November,

2002.

In explaining his relationship
with the deceased, accused 1 said it
was a stormy kind of
relationship. They used to fight each other
without causing any
injury. He said whenever he was drunk he
would fight the deceased
and deceased too would fight him when
she too was drunk. This
sounded as though they had an
arrangement to get drunk in turns
and not to be both drunk as the
same time which could be quite
unrealistic. We have not been told
as to what would happen when
both of them were drunk.

Accused 1 had said that deceased
left him for her home as she
claimed she was going for work. But
the deceased was still
coming back home from work to Mazenod, so
that that could not
have been the reason why she left accused 1.
There could only be
one logical explanation, the deceased ran away
from accused 1’s
regular assaults.

We have seen and listened to the
evidence of P.W.1, their
daughter, who clearly said that accused 1
was in the habit of
assaulting the deceased whenever he was drunk.
Looking at this
witness in the witness box, I had no reason to
doubt her evidence.
P.W.8 also gave the same story as P.W.1 when
she said that when

he
saw accused 2 at the scene she thought she was going to
intervene
as accused 1 used to assault the deceased.

There was no explanation given
by accused 1 as to why P.W.2
could implicate him by saying that on
the 18^th November as
deceased was brought home injured,
accused 1 had come following
her enquiring about his victim whom
he wanted to finish of.
Accused 1 only gave a bare denial and
could not even give any
reason why P.W.2 could lie about such a
serious allegation.

The defence had objected to the
leading of evidence establishing
the stabbing of the deceased in
November, 2002 but he was
overruled. The defence had argued that
the events of November
could not be brought into the picture in
the charge before this
Court as the indictment only read “on or
about the 7^th day of
December, 2002”. But the
prosecution in response had shown that
section 154 (2) (a) of
CP&E took care of the situation. The
section reads

“(2)
If any particular day or period is alleged in any charge

as the day or period which any act or offence was
committed –

(a) Proof that the act or
offence was committed on any
other day or time not more than 3
months before or
after the day or period laid down therein shall
be

taken to support
such allegation if time be not of
essence of the offence;”

It was stated by the prosecution
that relying on the provisions of
the above quoted section the
18^th November fell within the three
months allowed by
the section. I am in agreement with the
argument advanced by the
defence, that in fact the section was
misconstrued because it
would only apply where there was one
incident not where there were
two different incidents happening on
different dates.

Rather, the relevant section
would be section 158 of the CP&E
Act which
reads:-
“Whenever a charge in respect of any offence is
defective for
want of the averment of any matter which is an
essential
ingredient of the offence, the defect shall be cured by
evidence
at the trial in respect of the offence proving the
presence of
such matter which should have been averred, unless the
want
of averment was brought to court before judgment.”
There
has been evidence that accused 1 was reputed for assaulting
the
deceased. This was said by P.W.5. He was seen by P.W.2 on
the 18^th
November following immediately after the deceased was
taken home.
He was even claiming that he wanted to finish the
deceased of.
P.W.2 heard accused 1 claiming to have stabbed the

deceased.
Whilst P.W.1 and P.W.8 on the other side heard from
the deceased
herself that the injuries had been caused by accused 1
with a
knife.

True enough, the framing of the
indictment left out the events of
the 18^th November
when the deceased was stabbed with a knife.
But evidence which was
placed before this Court established that it
was accused 1 who
inflicted those stab wounds on the deceased.
The defect in the
indictment has thus been cured by evidence. S v
Van Wyk 1974
(1) S.A 36. It could not even be said that the
accused would
suffer any prejudice as in both occasions accused 1
has been the
one who inflicted the injuries or who assaulted the
deceased. No
need even to request for any amendment of the
indictment once the
evidence has been led to cure the defect.

We learned from the evidence of
the doctor that he examined the
dead body some nine to eleven days
after death. The defence
relied on the report by the doctor that
no external injuries were
visible. The doctor had made a
confession that due to pressure of
work at Queen II he overlooked
the taking of dimensions of the
wounds. The deceased had not been
taken straight to the mortuary
from the scene, but because she was
still alive was taken to
hospital. P.W.2 had shown that deceased
was bleeding through her

mouth,
ears and nose, whilst P.W.3 said was foaming from her
mouth. That
could well have been so, but people might have
thought that
making mention of having washed the deceased was a
minor issue.
What might be worth considering would be the fact
that the dead
body had been kept at a cold place at the mortuary for
days before
the post-mortem examination. So that if there had
been any bruises
on the body and around the injuries could not still
be visible
during post-mortem possibly due to cold. But evidence
has shown
that both accused 1 and accused 2 were seen assaulting
the
deceased on the day in question.

When accused 1 stabbed the
deceased on the 18^th November,
accused 2 was not there.
She could not therefore be associated
with the events of that
date. The intention to kill could be inferred
from the nature of
the weapon used. Accused 2 had been using a
shoe in assaulting the
deceased, but in her participation could not
be said he intended
to kill, Ntsokolo v R 1995-96 LLR&LB 335.
It had been
said she was heard saying to the accused 1 as he was
assaulting
the deceased, “kill her and I will burry her.”

In Sesotho we always say to our
kids, “I will kill you”, not
necessarily saying killing in the
true sense of the word. It would
just be another way of showing
your disapproval, or anger.

As
was said in R v Duma & Another, 1945 AD 410 at 415,
that
association in the common design need not be express, it
may well
be implied from conduct. The participation of accused 2
on the 7^th
December if anything was with intent to
cause harm but not to kill.

P.W.1 had shown that accused 2
joined the fight as she heard the
deceased insulting her (accused
2) when accused 1 was assaulting
her (deceased). I was inclined to
believe the story of P.W.1 as she
impressed me as a credible
witness. Prior agreement on a common
purpose is not required, but
is sufficient if collaboration began
without premeditation and on
the spur of the moment, S v Maree
1964 S.A. 545.

In the Mosiuoa Pheko v R
1985-90 LLR 9 the Court found that
common purpose to commit
Culpable Homicide had not been
proved where appellant had
assaulted the deceased once with a
stick after a quarrel, but
later the brother of appellant came and
fatally stabbed deceased
with a knife. Appellant was not shown to
have known that his
brother would join the fight, nor was there any
evidence that
appellant knew his brother had a knife. In this case,
we have not
been told that accused 2 knew that accused 1 had prior
to that day
stabbed the deceased with a knife and that the wounds

were
even still being attended to at the clinic.

I have already pointed out that
the intention to kill could be
inferred from the weapon used. It
could also be inferred from the
area where the wounds would be
inflicted. The doctor told this
Court that the injuries which
caused the death of the deceased were
at the back on the left
shoulder blade, and evidence had revealed
that they were caused by
accused 1.

According to P.W.2 accused 1
was threatening to kill the deceased
that was why deceased had
asked P.W.2 to meet her half way from
the clinic. Accused 1
assaulted the deceased all over and did not
care to spare the
areas where the deceased had been stabbed. This
he did in
furtherance of his intention to kill. We were told by
Crown
witnesses that when the deceased was taken from the scene
she
could no longer talk and was breathing with difficulty.

The Court therefore finds that
when the accused, accused 1 stabbed
the deceased with a knife on
the 18^th November causing
penetrating wounds, and when
he assaulted her on the 7^th
December, 2002 had the
intention to kill the deceased. That when
accused 2 assaulted the
deceased on the 7^th December, 2002 she
had intention to
cause grievous bodily harm.

Please
stand up the accused.

Accused 1: You
are accordingly found guilty of murder.

Accused 2:You are found guilty
of Assault with intent to do
grievous bodily harm.

Though one of our Assessors has
now departed this land, may His
soul rest in peace, but we had
already discussed this case with him.
So that both my Assessors
agree with my findings. Passing of
sentence deferred to 31/05/05.

A. M. HLAJOANE
JUDGE

Sentence

We have been told that the
accused are first offenders. Though
there was no valid marriage
between the deceased and accused 1,
but the whole scenario
appeared to have been a family feud.
Accused 1 and the deceased
stayed together as husband and wife,
and this was confirmed by
P.W.1, Rethabile Theko who referred to

accused
1 as her father.

Though the defence counsel
wanted to put things mildly by saying
accused 1 and the deceased
fought almost daily out of jealousy, it
was correctly put by the
prosecution side that it has always been a
stormy kind of
relationship.

The Court took into account the
extenuating circumstances
advanced by the defence. Accused 1 was
found to have been
armed with a knife on the day of the assault,
but did not use it on
the deceased. Accused 1 produced before
court his medical book
as evidence that he was a sickly person
attending TB treatment, but
that should not be taken to make him
less blameworthy. He had
stabbed the deceased with a knife on
previous occasion and when
he so assaulted and kicked her on that
fateful day did not care to
remember that deceased still had those
open wounds.

The Court extracted the truth of
the matter from both accused
through some of the crown witnesses.
Accused 1 denied ever
stabbing the deceased with a knife prior to
the day in question, but
there had been strong evidence that he
did stab the deceased and
wanted to see her dead. The deceased
must have run away from
accused 1’s assaults to her maiden home.

In
some cases one would find that some parents in marriage love to

choose partners for their children, so that accused 2 might have
been
one such parent. She would not tolerate her son, accused 1,
taking
the deceased as his wife. We were told in evidence that she
even
referred to deceased as “letekatse”, which loosely means a
woman
for all men.

There has to be a balance
between the interests of the accused and
those of the victim as
was said in R v Selibo & Ors C of A (CRI)
8/04 that the
victim or his dependants are often a neglected party in
the
criminal justice system. Accused 1 is a sickly person and
accused
2 is an elderly woman, but we still have to remember that
deceased’s
parents have also lost their daughter and deceased’s
children
have lost their mother. There might be a claim for
compensation
for raising deceased’s head under our custom and
that too has to
be borne in mind in passing the appropriate
sentences.

Accused please stand up.

Accused 1:You have been found
guilty of murder and you are
sentenced to a period of seven years.

Accused
2:You have been found guilty of assault with intent to do
grievous
bodily harm you are sentenced to a term
of three years
imprisonment, and the whole of that
sentence suspended for a
period of two years on
condition that during the period of
suspension,
you are not found guilty of a similar
offence
involving violence to another person or persons.

A. M. HLAJOANE
JUDGE

For Crown: Ms
Motinyane

For Defence: Mr
Lesuthu