CRI/T/11/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

TSIETSI
PHOMANE

JUDGMENT

Delivered
by the Hon. Mr.. Justice B.K. Molai on the 23rd day of June, 1986.

The
accused in this case appears before me charged with the murder of
'Mamoloantoa Moloantoa on the allegation that on or about
6th May,
1984 and at or near Ha Tsoene in the district of Mafeteng, he
unlawfully and intentionally killed the deceased. He has
pleaded not
guilty to the charge.

Mr.
Kabatsi, who represents the accused in this matter, and Mr. Lenono,
counsel for the crown, have respectively admitted and accepted
the
depositions of Tpr. Morahanye, Dr. J. Westerhuis and Seeiso Moloantoa
who were respectively, P.W.1 , P.W.4 and P.W.7 at the
proceedings of
the Preparatory Examination. In terms of the provisions of S. 273 (1)
of the Criminal Procedure end Evidence Act,
1981 the depositions
became evidence and it was, therefore, unnecessary to call the
deponents as witnesses in this trial.

The court
then heard the evidence of P.W.1

2

D/Tpr
Thoahlane, who testified that on 7th May, 1984 he received a certain
report following which he proceeded to a house in the
village of Ha
Tsoene in which house he found the body of a dead woman identified to
him as that of the deceased. The body wa3 dressed
in a full dress and
a skipper.

On
examining it P.W.1 found that the body of the deceased had a single
stab wound between the breasts. He conveyed it in a police
landrover
to Mafeteng Government hospital and it sustained no additional
injuries.

The
evidence of Dr. J. Westerhuis was to the effect that he was the
medical doctor who, on 9th May 1984, performed a post mortem

examination on the deceased's body which was identified before him by
Seeiso Moloantoa and Thuso Chalatsi. This was confirmed by
Seeiso
Moloantoa. The external examination revealed one small wound on the
left chest. On opening the body, the witness found that
the wound
penetrated right through the left lung tearing, as it did, large
blood vessels (aota). In his opinion the wound was
consistant with
the use of a long sharp instrument, such as a screw driver, and death
was due to loss of blood resulting from the
rupture of the large
blood vessels.

I can
think of no good reason why Dr. Westerhuis's evidence, which was
common cause, that the deceased died as a result of the injury

inflicted upon her should be doubted, and I am prepared, therefore,
to accept it as the truth. That being so, the salient question
for
the determination of this Court is whether or not the accused

3

is the
person who inflicted the injury on the deceased and, therefore,
brought about her death.

In this
regard the crown adduced the evidence of P.W.2, 'Marnoeketsi Monyake,
who told the court that she was the daughter of the
deceased She was
married and had two children. At the time of the death of the
deceased P.W.2 was, however, not living with her
husband. They had
separated or she had "ngalaed." The reasons thereof are not
so material for the decision in this case.
What is important is that
whilst she was already married in 1982 P.W.2 fell in love with the
accused. When she left her husband
P.W.2 went to her maiden home and
stayed with the deceased. The deceased bitterly disapproved of the
illicit relationship between
P.W.2 and the accused who then took
P.W.2 to his home at Ha Ramorakane where they lived together as
husband and wife. Although
the accused denied it P.W.2 told the court
that her stay with the accused at the latter's home was not always a
happy one. They
often quarrelled when she would "ngalaed"
to her maiden home at Ha Tsoene, The accused would then go to Ha
Tsoene, beat
her up and forcibly return her to Ha Ramorakane. She did
not, however, personally report this to either the chief or the
police
for fear of the accused.

I must
say I find P.W.2's story that the accused was assaulting and taking
her to Ha Ramorakane by force and yet she never reported
this to the
chief or the police for fear of the accused some what strange. If she
really feared the accused who was often assaulting
her, P.W.2 needed
the protection of the chief and the police. One

4

would
have expected her to bring the matter to the attention of the chief
and the police for her own protection.

Be that
as it may, it is common cause that, on the day in question, P.W.2 was
again at her maiden home when the accused arrived
in the village. The
deceased and another of her daughter, P.W.4 'Mamokholutsoane Matube,
had on a previous day went to Maseru on
a visit leaving P.W.2 alone
at home. On his arrival the accused found P.W.2 in one of the houses
in the village from where they
went to deceased's house. Whilst at
the deceased's house P.W.2 heard something making noise in the
pockets of accused. She became
worried and insisted on seeing that
thing. This, according to P.W.2 was because she felt afraid of the
accused. The accused then
produced from his pocket a knife and a nail
clipper which he showed to P.W.2. She was still not happy to stay
alone with the accused
in the house and so she went to a neighbouring
house from where she asked P.W.3, 'Maseapei Moiloa, to come and keep
her company
whilst the accused was in the house.. This is confirmed
by P.W.3 who told the court that she accordingly went to the
deceased's
house.

It is
common cause that at about 8pm and whilst the accused, P.W.2 and
P.W.3 were chatting normally in her house the deceased and
P.W.4
arrived home from Maseru-There was a candle light in the house.
According to P.W.2 as soon as she arrived home and found
the accused,
the deceased ordered him out of the house. This was because the
deceased, as has been pointed out earlier, disapproved
of her illicit
association with the accused. When he was ordered out the accused
didleave the house and the deceased

5

closed
the door behind him. P.W.2 denied the suggestion that at any time,
the deceased assaulted the accused with an umbrella. After
a short
while, however, the accused returned, knocked at the window and
called out the name of P.W.2 whom he said should hand over
the keys
of his tin trunk. When P.W.2 replied that she did not have the keys
the accused told her to hand over his clothes. The
deceased asked
P.W.2 what clothes the accused was referring to and the latter
replied that he (accused) was perhaps referring to
the ones she was
wearing for he had brought them for her. The deceased then ordered
P.W.2 to put off the clothes and hand them
over to her so that she
(deceased) could give them to the accused. P.W.2 complied.

The
accused's version as to what happened when the deceased arrived home
is slightly different. According to him when the deceased
and P.W.4
arrived home they stood for a short while outside the house and
talked to themselves before moving into another of the
deceased's
huts. P.W.4 then came into the hut in which the accused, P.W.2 and
P.W.3 were sitting. Whilst P.W.4 was looking for
something on the
shelves the deceased came in and was carrying an umbrella with which
she immediately started bashing him on the
head at the same time
telling him to leave the house. He denied. therefore, the evidence of
P.W.2 that there was a time when he
went out of, and later returned
to the house. He denied that he ever knocked at the window and called
out the name of P.W.2 whom
he asked to hand over clothes and the keys
to his tin trunk. According to accused while the deceased was bashing
him with the umbrella
he noticed P.W.A approaching

6

with a
table knife. He then caught hold of the deceased, pulled and kicked
her on the leg when she flew over his shoulders and fell
to the
floor. According to accused, he then left the deceased's place and'
later returned to Maseru where he normally worked. This
seems to find
support in the evidence of Tpr, Morahanye who said on 14th May 1984
he arrested the accused at the Building Section
of the Ministry of
Public Works here in Maseru, Accused believed that the deceased was
accidentally stabbed by the knife which
P.W.4 was holding in the
house.

The
evidence of P.W.2 in this regard was, however, corroborated by that
of P.W.3 and P.W.4 who impressed me as more reliable witnesses
than
the accused. . Although P.W.2 was. herself, not a very impressive
witness I am, however, prepared to accept her story, which
was. in
this regard; corroborated by that of P.W.3 and P.W.4. In her evidence
P.W.2, again corroborated by P.W.3 and P.W.4 whose
evidence I am
prepared to accept as the truth, went on to tell the court that after
she had handed the clothes over to the deceased
the latter opened the
door intending to give them to the accused. As soon as the door
opened the accused rushed into the house
and met the deceased at the
door way. He then struck the deceased a blow on the chest with a
glittering object which P.W.2, P.W.3
and P.W.4 could not clearly
identify. As she was struck the blow the deceased staggered backward
and sat in a chair clearly in
pains. P.W.3 said when she saw the
accused stricking the deceased and the latter staggering into a chair
she immediately went out
of the house intending to raise an alarm She
did not see what then

7

happened
in the house. On her way to Seeiso Moloantoa's place where she
intended making the report P.W.3 was joined by P.W.2 who
came running
in her direction. They took cover behind the house of one Thuso
Chalatsi, The accused noticed only P.W.3 and asked
her where P.W.2
was. She deceived him by saying P.W.2 had run downwards. The accused
then left. P.W.2 entered into the house of
Thuso Chalatsi whilst she
(P.W.3) continue on her way to Seeiso Moloantoa's place where she
made the report.

P.W.4
confirmed that after the accused had struck the deceased a blow the
latter staggered into a chair. According to P.W.4 after
stricking the
deceased the accused went straight to P.W.2 who then stambled over a
chair and fell to the ground in an attempt to
run away from the
accused. The accused then caught hold of P.W.2 and pressed her to the
floor. At that stage P.W.4 ran out of the
house. P.W.3 had already
gone out. After she had run out of the house P.W.4 noticed the
accused following in her direction and
she screamed loudly. The
accused then returned. She denied to have at one time armed herself
with a knife with which she attempted
to stab the accused.

P.W.2
confirmed that after he had stabbed the deceased the accused rushed
at her and in trying to clear out of his way she stambled
over a
chair and fell on the floor. As the accused tried to press her to the
floor she managed to escape and run out of the house.
She confirmed
P.W.3's evidence that after she had joined her they were running
together when they noticed the accused following
in their direction..
They then took cover behind Thuso's house

8

where the
accused saw and spoke to P.W.3. After the accused had left, she ran
into the house of Thuso Chalatsi. P.W.2, P.W.3 and
P.W.4 testified
that they, later that night, returned to the deceased's house, where
many villagers had already gathered;, and
found the deceased dead.

Although
the accused has suggested that the deceased could have been
accidentally stabbed by a knife which was held by P,W.4, the
evidence
is simply over­whelming in my view, that there is no such thing
and the truth of the matter is that he stabbed the
deceased in the
manner described by P.W.2 P.W.3 and P.W.4. Indeed. D/Sgt Thoahlane's
evidence which I accepted as the truth was
that on 14th May 1984 the
accused took him to his house at Ha Ramorakane and produced, in the
presence of the village headman the
screw driver, exhibit 1, which he
said he had used it on the deceased.

I have
not the slightest doubt, therefore, that the answer to the question I
had earlier asked viz. whether or not the accused is
the person who
inflicted the injury that resulted in the death of the deceased must
be in the affirmative.

In
stabbing the deceased on the chest with such savage force that the
stab wound penetrated right through the lung the accused must
have
realised that death was likely to result. He nonetheless acted
reckless of whether or not it did occur. That being so, I am

satisfied that in assaulting the deceased, as he did, the accused had
the requisite subjective intention to kill.

9

I would,
therefore, find the accused guilty of murder as charged.

My
assessors agree.

JUDGE.

23rd
June, 1986.

10

EXTENUATING
CIRCUMSTANCES

It is
clear from the evidence in this case that the accused was, at the
material time, visiting P.W.2 with whom he had an illicit
love
affair. When the deceased, who disapproved of their illicit
relationship, and rightly so in my opinion, expelled him the accused

must, naturally, have felt offended or provoked even if it were not
to the extend that his crime of murder could be reduced to
a lesser
offence.

I
concede, it may have been unreasonable for the accused to feel
offended or provoked in the circumstances, but the test to be applied

is subjective and not objective Moreover, there is nothing in the
evidence, considered in its totality, to show that the accused
had
planned or premeditated the killing of the deceased.

The
presence of provocation and the absence of premeditation in this case
have, in my view, the cummulative effect of lessening
the moral
blameworthiness of the crime committed by the accused. That granted,
it must be accepted that extenuating circumstances
do exist in this
case and I so find.

SENTENCE
: 12 years' imprisonment.

My
assessors agree.

JUDGE.

23rd
June, 1986.

For Crown
: Mr, Lenono

For
Defence: Mr Kabatsi.