CRI/T/45/81

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

R E X

v

SELLO
NKETU

JUDGMENT.

Delivered
by the hen. Mr. Justice F.X. Rooney on the 11th day of August, 1982.

Miss
Moruthane for the Crown, Mr. Maqutu for the Defendant.

On the
21st June, 1981, at Ha Senekane in the district of Berea, the accused
killed a young married woman named 'Maliepollo Lebabo
by striking her
on the head with an object which I would describe as a hatchet, but,
which was referred to as a tomahavk or an
axe by several witnesses.
It is as capable of being used to chop wood as it is to hammer nails.
It appears to be made of steel
with a rubber handle. It measures 32.5
cm from the bottom of the handle to the top of the head. The blade of
the hatchet is 8.5
cm long and the hammer knob on the opposite side
is 3 cm in diameter. It weighs 925 gr.

The cause
of death was cerebral contusion and damage and intracranial bleeding.
In the opinion of Dr. Park, who performed the post
mortem
examination, the victim received one blow on the head with a blunt
heavy object applied with strong force. It caused a circular

depressed fracture in the parietal region of the skull 4.5 cm in
diamenter. The bone fragments were buried

2

in the
brain tissues. It can be concluded that the deceased was struck with
the hammer head with sufficient force to punch a hole
in her skull.

It is not
in dispute that the accused and the deceased were lovers and had been
such for a period of some years. Their affair was
continued without
regard to the respective obligations of the parties. The accused's
wife left him some years ago. The affair received
the active
encouragement of the accused's aunt 'Mamaipato Ramahata (PW.6). It
was her action in reporting to the accused something
that she had
seen or suspected which precipitated the crisis which directly led to
the death of the young woman.

when the
indictment was put to the accused, he offered a plea of culpable
homicide. Miss Moruthane, who appeared for the Crown,
was quite
willing to accept the plea. however, I was not satisfied that the
evidence recorded at the preparatory examination supported
the prima
facia view that the accused was guilty of culpable homicide only.
This Court is not bound, after an accused has pleaded
not guilty to
the charge to enter a plea of guilty to a lesser charge even if the
prosecutor accepts it. (R. v. 'Makhethang Setai,1980
(2) LLR 359).
The trial therefore proceeded on the basis that the accused had to
answer a charge of murder. The issue to be resolved
was the
subjective intention of the accused in striking the fatal blow. The
Crown was obliged to prove that the accused intended
to kill. All the
circumstances had to be examined in order to discover his intention.

The
evidence disclosed that on the Sunday afternoon in question, the
deceased returned to the village in the company of a friend
'Malerole
Lekhali (PW.2). The two ladies went together to the house of one
'Malebajoa whore there was beer drinking. Among these
present were
Hape Phaqane (PW.3) and Lebajoa Senekane (PW 5). According to
'Malerole, Hape (who is a young man of 23 years) made
advances to the
deceased. He was sitting close to

3

her and
after a while he left the rondavel in which they were drinking.
shortly afterwards, 'Malerole noticed that the deceased
had
disappeared. She went in search of her but when she next saw her, she
was dead.

Hape
Phaqane (PW.3) agreed that he met the deceased and 'Malerole (PV.2)
at 'Malebajoa's. He did not know either of these ladies
except by
sight. He denied that he paid any particular attention to the
deceased. Although he admitted that at one stage he left
the
rondavel, he said it was to go home and fetch tobacco. In particular,
Hape said that it was untrue th8t he went into a flat
roofed house
adjoining the rondavel with the deceased or that he was discovered
there by the accused.

Hape said
that when he returned with his tobacco, he re-entered the rondavel in
order to finish his beer. The deceased and Lebajoa
were present.
While he was sitting there, the accused entered and having greeted
them, pulled out a hatchet from his waist and
hit the deceased with
it. They had all stood up when the accused produced the hatchet. Hape
ran out through the door and raised
the alarm. Later when he went
back into the rondavel, the deceased was lying on a skin covered with
a blanket.

In
cross-examination, Hape told the court that he ran out because the
accused was coming towards him aggressively. when the accused
first
produced the hatchet, Hape was unsure whom he was going to strike. He
denied that the deceased caught the accused by the
waist before she
was hit. He said that the accused had no reason to attack him or the
deceased. He did not know that they were
lovers.

Lebajoa
(PW.5) who was present during the incident, was a poor witness. He
told the Court that while they were drinking in the rondavel,
the
accused entered and without greeting anyone, produced an axe and
chopped a woman with it".

4

Although
born in 1939, this witness is still unmarried. He admitted that he
had been drinking that day and that his recollection
of events was a
little confused. He gave the general impression that ne was a man who
derives little from life apart from such
consolations as the
Consumption of beer may offer.

'Mamaipato
(PW.6) played an important role in the tragedy. She is Very fond of
the accused. She fostered his love affair with the
deceased.

She told
the Court that when she called at 'Malebajoa's, she observed the
conduct of the deceased and Hape. She saw them go into
the flat
roofed house. She came to the conclusion that they had improper
intentions. She observed them together and, feeling Jealous
on behalf
of her nephew, she immediately went to inform him of what she
suspected. He was at 'Mamabusa's another drinking place
a short
distance away. Although 'Mamaipato denied that she instigated the
accused to take action in the matter, she was concerned
for his
interests. She explained that the deceased did not care for her own
husband.

Before I
consider the evidence given by the accused, I may say that I am
satisfied that Hape has not ,been truthful when he denied
that he was
interested in the deceased. The evidence that he induced her to leave
the rondavel and go with him to another house
is over-whelming. I
believe that it was Hape's intention to persuade the deceased to have
intercourse with him. He has decided
to deny his conduct in order to
escape any measure of responsibility for what subsequently occurred.
The fact that Hape gave false
evidence on this score does not
necessarily lead me to conclude that his evidence is. totally
unreliable. It has not been shown
that he bears any animosity towards
the accused.

The
accused gave evidence to the effect that he is 48 years of age,
married with four children. His eldest child was born in 1961
and the
youngest in 1976. His wife returned to her maiden home the year after
the birth

5

of his
latest child on account of his persistent love affair with the
deceased. He claims that he respected his lover's husband
by being
discreet about his affair. Although the accused received no
complaints from the husband, he admitted that the deceased
told him
that her husband knew about her misconduct and had remonstrated with
her on that account. The accused had lavished gifts
upon his paramour
and was jealous of her.

Earlier
that day he had gone to the house of a man called Rathetsane armed
with the hatchet. His purpose was to scarify a beast
which was lame.
After he had accomplished this task, the accused went to the house of
'Mamabusa (not a witness) to drink beer.
when he was there,
'Mamaipato (PV.6) came to him and told him that his lady love was to
be found with Hape at 'Malebajoa's place
in a flat roofed house. She
said that the door of the house was closed. All this was told to him
privately while he was in the
company of one Tlali (not a witness).
When Tlali asked 'Mamaipato what she was talking to the accused
about, she repeated the story.
Tlali reprimanded her for mentioning
such matters to the accused. however, 'Mamaipato persisted and said
that she was jealous on
his account as he had spent a lot of money on
the deceased.

The
accused said that for a time he ignored what had been told to him.
But, his aunt kept on repeating the story until suddenly
he lost his
temper. He got up and walked to 'Malebajoa's house which is only
about a hundred metres away.

According
to the accused, when he reached the rondavel, he found Lebajoa seated
alone inside. He said that there is a window opening
from the
rondavel into the house with the flat roof. He heard soft noises
coming from within when he asked Lebajoa who was inside,
the latter
replied that he did not know. He said that he opened the window a
little and saw Hape "stand up from preparing
his bed". He
also saw the deceased getting up from the floor. when he went to the
flat, he found the

6

door
locked. He shouted to them "Come out, what are you doing In
there?" The door opened and Hape and the deceased came
out and
went back into the rondavel.

The
accused continued according to my note :

"To scare her I used the axe not intending to hurt her. But I
did so. Her head was in the region of my stomach, she held me
firm
and I tried to hit her so that she would leave. The axe is a heavy
object and I did not use much force. It was not my intention
to do
this thing. I was not fighting with her, I wanted to fight Hape. She
fell and Hape ran out of the rondavel. I killed her
but not
intentionally. Before this occasion, I had chastised the deceased
with a small stick. I felt that I had taken liquor but
I was not
staggering or drunk".

In
cross-examination, the accused agreed that he had lost his temper
before he left 'Mamabusa's house. He insisted that he saw the
couple
coming out of the house and that they were not in the rondavel when
he arrived. He said that he was not advancing on the
deceased when
she took held of him. He had no intention of using the hatchet which
he agreed was a dangerous weapon. The accused
demonstrated before the
Court the position which he and the deceased were at the time he hit
her with the hatchet.

Now it
seems to me common sense that if the deceased was grasping the
accused about the waist and was pressing her head against
his
stomach, it would have been very difficult for the accused to have
struck her at such close quarters with a force sufficient
to do the
damage which was done in this case. Hape denied that the deceased
caught held of the accused just before she was struck
down. Although
Hape was not a satisfactory witness in the respects that I have
already mentioned, his version as to what occurred
was far more
plausible than that propounded by the accused. If the accused had
wished to detach the deceased from him, he could
have done so more
easily and effectively by pushing her to one side. I am unable to
accept that what the accused told the Court
was true.

7

The
accused admitted that he is a jealous man. He was enraged by what he
was told by his aunt and he was in that state of mind when
he reached
'Malebajoa's place. There is a conflict of evidence as to whore the
couple were when the accused arrived. But, it is
agreed that the
actual attack on the deceased took place, not in the flat roofed
house, but, in the adjoining rondavel. I am satisfied
that the
accused struck the deceased in a fit of rage and that the blow with
the hatchet was a strong one.

What was
the accused's intention at that moment? While it may be said that
there is no evidence that when he struck the deceased,
he intended to
bring about her death, there is no doubt that he must have forseen
the possible consequences of his act and was
reckless as to these
consequences. I do not consider it necessary to review the many
authorities which deal with what is described
as subjective forsight.
I have found that the accused struck this woman with a lethal weapon
with a reckless disregard of the consequences.
That is in itself
sufficient to establish the legal intention to kill.

The
killing was without provocation as that term is defined by statute in
the Criminal Law (Homocide Amendment) Proclamation 1959.
The deceased
may have been the lover of the accused but that is all. She did not
stand in relation to him in any conjugal, parental,
filial or
fraternal relationship. Her supposed misconduct with Hape cannot said
to be wrongful within the meaning of Section 4(a)
of the
Proclamation. Her relationship to the accused, however strong, their
affections, remained an illicit one. The accused had
no business with
her and therefore he could not complain if she elected to bestow her
favours elsewhere.

In the
circumstances (my assessers agree with me) the proper verdict in this
case is one of murder and it is entered accordingly.

8

Extenuating
circumstances are found because the accused acted in a rage without
premeditation.

(The
Judge's remarks before passing sentence form part of the record).

SENTENCE
:

Ten (10)
years imprisonment.

F.X.
ROONEY.

JUDGE.

11th
August, 1982

Attorney
for the Crown : Law Office

Attorney
for the Defendant: Mr. Maqutu.