CRI/T/70/05

IN THE
HIGH COURT OF LESOTHO

HELD AT
BUTHA BUTHE

In the
matter between:

REX

VS

LEPHETHESANG
PHETA

JUDGMENT

Delivered
by the Honourable Judge M. Mahase On the 9th July 2007

The
accused appeared before this court charged with having committed the
crime of murder.

The
incident in question is alleged to have occurred at or near Ha
Sekutlu Makutlu in the district of Thaba Tseka upon or about
the 18th
day of August 2004.

The crown
alleges that on that day, the accused did, unlawfully and
intentionally and with the intent to kill the deceased, assaulted

Ntoula Matli with a Lelothoane stick and

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that the
deceased died at Mamohau hospital on the 24th day of August 2004.

The
accused who appeared before this court on the 9th July 2006 at the
criminal session held in the Butha Buthe district, tendered
a pleas
of guilty to culpable homicide, when the charge was put to him. This
plea was said to be in accordance with instructions
of Mr. Fantsi who
represented the accused herein.

Having
accepted the plea tendered by the accused, the crown counsel, Mr.
Mokuku outlined the facts of this case.

The facts
are that on the day in question, the 18th August 2004, the accused
and the deceased were together. That the deceased blamed
the accused
for the theft of the deceased's cattle. This was denied by the
accused.

There was
an exchange of words over this issue between the accused and the
deceased. Ultimately, this resulted into a fight between
them.

That
during that fight, the accused hit the deceased with a stick on the
head.

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The
deceased sustained injuries from that blow delivered upon him by the
accused.

The
deceased was subsequently taken to "Mamohau Hospital wherein he
was examined and hospitalized for a number of days.

He
ultimately succumbed to the said injuries and died on the 24th August
2004 at that hospital. However exhibit A indicates that
he died on
the 18th August 2004.

The post
mortem report, exhibit A was handed in as an exhibit. It shows that
the deceased died on the 18th August 2004 due to "head
injury on
frontal area, skull fracture and internal and external bleeding".

The
medical doctor's remarks are that death may have been caused by
trauma.

The
apparent age of the deceased was 71 years. There is no indication as
to the age of the accused.

The
accused was found guilty of culpable homicide and he was sentenced to
imprisonment for a period of ten (10) years.

3

It was
submitted on behalf of the accused in mitigation of sentence by Mr.
Fantsi that among other things, the accused had felt
defamed by the
deceased because the deceased had no proof that indeed it was the
accused who had stolen his (cattle) - i.e. deceased's
cattle.

That the
accused is an elderly person who has a family to look after; and that
he had shown remorse for the death of the deceased
and that is why
accused has tendered a plea of guilty to culpable homicide.

Last but
not least, the accused has no previous convictions.

All of
the above factors were taken into consideration by this court in
imposing sentence upon the accused.

However,
this court is alive to the fact that the accused had a remedy in law
if he indeed felt that the deceased had defamed him.

The crown
has correctly in the mind of this court, argued that being a
reasonable, grown up person, the accused should have exercised
self
control and should not have allowed himself to be carried away by
personal emotions thereby fatally wounding the deceased
over this
issue.

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It is
observed by this court that the accused has not raised a plea of
self-defence nor that of provocation.

The fact
that the deceased had a suspicion that it was the accused who had
stolen his cattle is not a justifiable reason for the
accused to have
permanently deprived the deceased of his life - which is God-given
and is sacred.

There is
no doubt in the mind of this court that there was no premeditation on
the part of the accused to kill the deceased. However
the accused was
negligent in assaulting the deceased as he did with a stick (molamu)
on one's very vulnerable part of the body
viz the head.

There is
no evidence establishing that the accused had, by assaulting the
deceased as he did, intended to kill him. However, one
may observe
that a stick (molamu) is dangerous and caused death if used upon a
human being as the accused did in this case.

For the
fore going reasons, the accused is found guilty of culpable homicide
is sentenced to imprisonment for a period of 10 (ten)
years.

Lastly,
this court has observed above that death is said to have occurred on
the 18th August 2004.

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The crown
evidence is that the deceased died on the 24th August 2004 at
'Mamohau Hospital.

This fact
was never canvassed at the trial stage but it is apposite to note
that, in the circumstances of this case, the time/date
as to when
death occurred is not of any relevance.

The fact
of the matter is; and this has not been denied by the defence is that
the deceased met his death after and or from the
head injuries he
sustained from the assault upon him by the accused.

My
assessors agree.

M. MAHASE

JUDGE

For the
Crown : Mr. Mokuku

For the
Accused : Mr. Fantsi

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