CRI/T/29/86

IN THE
HIGH COURT OF LESOTHO

In the
Matter of

REX

v

MOSALA
LIBABE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 13th day of November, 1987.

The
accused is before me on a charge of murder. The Facts disclosed by
the charge sheet are that on 15th November, 1985 at or near
Mpharane
in the District of Leribe, the accused unlawfully and inten­tionally
killed one Mohlalefi Ntelane.

It is
common cause that the deceased lived in the same village as the
accused does. They were in fact relatives According to her,
P.W.1,
'Mathabang Soto, who also lived in the same village with the deceased
and the accused, she was, on 15th November, 1985,
returning home from
the mill at Mokhanipi when she noticed the accused following her. The
accused caught up with her. After they
had greeted each other the
accused passed on. P.W.1 then met another woman with whom she talked
for a short time. She then noticed
the deceased who was in the
company of one Papa approaching on the same road but from the
opposite direction. Then the accused,
Papa end the deceased met and
passed each other at a distance of about 12 paces (indicated) from
her. Nothing was said between
the deceased. Papa and the accused as
they passed each other on the way. She would have heard it if the
deceased and the accused
talked to each other unless of course, they
were whispering.

2

However,
she noticed that after passing the deceased and Paps on the way the
accused walked fast in the direction towards his home.

When the
deceased and Papa came to P.W.1, the former stopped and talked to
P.W.1 about her field which he was supposed to have measured
in
preparation for ploughing. It was whilst she was talking to the
deceased on the road that P.W.1 noticed the accused running
towards
them. He was holding a knife similar to the one before court. P.W.1
was, however, not bothered for she thought the accused
was returning
to where he came from at the time he was following her.

When he
came to them the accused went round P.W.1 and suddenly stabbed the
deceased, who stood facing her, on the chest. She immediately
took to
her heels and went to raise an alarm at a nearby house where there
was a feast for removing a mourning cloth. Whilst she
was running
away, P.W.1 had the occasion to look back when she noticed the
deceased picking up a stone. He did not, however, throw
the stone at
the accused. He remained holding it until accused's mother, one
'Mampheletso Libabe, came and intervened in the fight.
The accused
then left in the direction towards his home.

The
deceased eventually fell to the ground still holding the stone. Later
on the police came and carried him away. He was still
alive. However,
on the following morning, P.W.1 learned that the deceased had passed
away.

According
to the accused, the deceased was a secret lover of P.W.1, a fart
which is, however, denied by P.W.1. When he met Papa
and deceased,
the latter asked him whether he was also in love with P.W.I. The
accused denied it. The deceased then told him to
stop talking shit.
When accused returned the insult, the deceased then attacked and
stabbed him with an okapi knife. He (accused)
also took out his okapi
knife with which he stabbed the deceased in self-defence. He denied,
therefore,

3

P.W.1's
evidence that before stabbing the deceased he first went home from
where he brought the butcher knife before court.

P.W.2,
'Manthatisi Thaate, one of the villagers, told the court that on the
day in question she was one of the women who were cooking
at the home
of Papa where there was a feast for the removal of mourning cloth. At
one time she went outside the shelter in which
the cooking was taking
place to attend to her baby.

It was
whilst she was outside the shelter that P.W.2 noticed the accused
following P.W.1 on the road from the direction of Makhanipi.
She also
noticed the deceased who was walking in the company of Papa on the
same road but from the opposite direction. There was
a time when
P.W.2 went into the shelter to put bread into the pot. When she got
out she noticed the accused walking fast towards
the direction of the
deceased and P.W.1 who were talking to each other on the road. The
accused was clearly holding a knife in
his hand and coming from the
direction of his house in the village.

When the
accused came to where P.W.1 and the deceased were, P.W.2 saw him
stabbing the deceased with the knife he was holding. At
that time
Papa had left the deceased with P.W.1 and was at the entrance leading
to his home. When she noticed the accused stabbing
the deceased with
the knife P.W.2 raised the alarm by calling out accused's mother who
was inside a house at the place where there
was a feast for the
removal of a mourning cloth.

Although
the accused denied that he first went to his house, armed himself
with a knife and then returned to stab the deceased where
the latter
was talking to P.W.1 on the road, it seems to me that the evidence of
P.W.1 that he did is corroborated by that of P.W.2.
I see no good
reason why these two women should implicate him falsely on this
point. I am inclined, therefore, to accept their
story as the truth
and reject the accused's version as false.

4

Although
P.W.2 had initially told the court that after the accused had passed
P.W.1 on the road, she saw him passing the deceased
and Papa who were
walking together on the same road but in the opposite direction, she
later changed and said she only saw the
accused when he was returning
from the direction of his house in the village. She did not,
therefore know if when the accused passed
the deceased and Papa on
the way to his house there was any discussion between them.

The
evidence of P.W.1 that she noticed that when the accused met the
deceased and Papa on the road no conversation took place between
them
is not corrobo-rated by the evidence of P.W.2. There is, therefore,
only P.W.1's word that no conversation took place between
the accused
and the deceased and Papa at the time they met on the road. On the
other hand there is accused's word that such conversation
did take
place.

In my
view P.W.1's story that after meeting the deceased and Papa the
accused for no reason, ran home, armed himself with a knife
with
which he returned to stab the deceased does not make sense. The
accused's version that when he met the deceased and Papa there
was an
altercation between them is a more sensible explanation in as much as
it gives a motive why the accused had to run to his
home, armed
himself with a knife with which he returned to stab the deceased.

In her
evidence P.W.3, 'Mampheletso Libabe, told the court that the accused
was her own son. She confirmed that on the day in question
she was
inside a house at the home of Papa where there was a feast for the
removal of a mourning cloth. She then heard P.W.2 raising
the alarm
by calling out her name and saying the accused was stabbing a person
with a knife. P.W.3 then immediately rushed out
of the house and
noticed the accused and the deceased on the road just outside Papa's
premises. The accused was holding up a knife
at the deceased who was
also holding a stone,. She ran and got between the two men. She
noticed that the deceased was badly injured
on the neck and bleeding
profusely.

5

When she
remonstrated with him for what he had done to the deceased the
accused simply left in the direction towards hie home. Shortly

thereafter she, however, noticed the accused running away from his
home. P.W.3 assured the court that the knife before court and
not an
okapi knife is the one the accused was armed with on that day.

In his
testimony P.W.4 D/Tpr Seboka told the court that on 15th November,
1965 he left his station at T.Y. on his way to Kolojane.
He was
travelling in a police van. On the way he met one Monyane, another
police officer who was at the time stationed at Mapoteng
police post.
The two police officers then travelled together to Kolojane.

On their
way back from Kolojane they went via Mpharane. As they passed on the
road next to Mpharane. High School it was towards
sun set. They were
stopped by some women who asked them if they could assist by rushing
to the hospital an injured person in the
village. One of the women
was 'Mathabang Soto.

When
P.W.4 inquired about the whereabouts of the person who had caused the
injuries the women pointed at a person who was running
on the upper
side of Mpharane High School. The police officers then immediately
turned their vehicle and chased after the person
who was running
away. When they came to the home of one Chabeli the road was bad.
They then left the vehicle and continued the
chase on foot. They
called out at the person who was running away and told him to stop
for they were police officers. When he did
not stop they fired a
warning shot. The man then stopped and returned to them. P.W.4 found
that it was the accused who was a known
person to him.

When he
was asked about the person he had allegedly injured in the village
and the weapon used, the accused gave a certain explanation
following
which he took the police officers to a spot next to a kraal used for
dipping animals. From that spot he produced and
handed over to P.W.4
a long butcher knife which is before court. On

6

examining
it P.W.4 noticed that the knife had what appeared to be blood stains
on its blade. He took possession of the knife which
he later handed
to one D/Sgt Peete at Hlotse police station. It was labled in his
presence. Although D/Sgt Peete has not been called
as a witness in
this trial P.W.4 assured the court that the knife before court is the
one produced by the accused on that day and
it was handed in as Exh.
1.

According
to P.W.4 after the accused had produced Exh. 1 he escorted him to the
vehicle from where they drove to the village of
Mpharane. They found
the deceased bleeding profusely from the neck but still alive. In an
attempt to save his life they put the
deceased into the vehicle and
rushed him to Hlotse hospital without examining him for further
injuries.

The
deceased did not sustain additional injuries whilst he was being
transported from Mpharane to the hospital. However, a few minutes

after arrival at the hospital P.W.4 learned that the deceased was
dead. Before returning to his station at T.Y. P.W.4 escorted
the
accused to HLotse police charge office where he handed him to the
police after cautioning and charging him as afore­ said.

P.W.4 had
neither observed any injuries on the accused nor did the accused
himself complain that he had been injured on that day.
However, the
accused appeared to be some what drunk.

In his
evidence, the accused conceded that after P.W.3 had remonstrated with
him for stabbing the deceased, he left and went to
his home, then
threw the knife he hod used to stab the deceased with into the
garden. He conceded that he then ran sway and was
chased by the
police officers one of whom was P.W.4 who was an acquaintance of his.
when shots were fired at him he realised that
he might be injured and
then decided to stop and surrender himself. He denied, however, that
he produced to P.W.4 Exhibit 1 which
was not the knife he used to
stab the deceased.

7

I find no
good reason why P.W.4 who is admittedly an acquain­tance of the
accused would say the accused pointed or produced
Exhibit 1 to him if
he did not in fact do so. Indeed, the evidence of P.W.1 P.W.2 and
P.W.3 who is accused's own mother confirm
that Exh. 1 is the knife
which was used by the accused to stab the deceased. While still on
this point, it may be mentioned that
P.W.3 impressed me as a very
honest lady who came to this court prepared to tell the truth and
nothing else. I have not the slightest
hesitation in accepting her
evidence corroborated by the evidence of the other crown witness that
Exh 1 is the knife with which
the accused stabbed the deceased. In an
attempt to hide this knife the accused threw it away whilst he was
running away and P.W.4
was telling the truth when he testified that
after he had arrested him, the accused took him to the spot where he
produced it.

Although
he claims to have been injured by the deceased and P.W. 4 denied him
the opportunity to see a medical doctor, the evidence
of the accused
in this regard is denied by P.W.4 and all the crown witnesses who saw
him on that day. In reply to the question
that were put to him by the
court, the accused himself testified that he did not report the
alleged injuries to the police at Hlotse,
the magistrate before whom
he was remanded and the prison authorities. I am convinced that the
accused's story that he had been
injured by the deceased on the day
in in question is nothing but a fabrication which I am not prepared
to accept.

The
deposition of Raletsoai Ntelane who was P W.6 at the proceedings of
the Preparatory Examination was admitted by the defence
counsel. The
crown counsel accepted the admission. In terms of the provisions of
S.273 of the Criminal Procedure and Evidence Act
1981, the deposition
became evidence and it was, therefore, unnecessary to call the
deponent as a witness in this trial. According
to Raletsoai Ntelane
he is the father of the deceased. On 15th November, 1985 he was at
his home in

8

the
village of Mpharane when he heard the alarm following which he
proceeded to a place where a large number of the villagers had

gathered. He found the deceased lying on the ground. He had sustained
open injuries on the neck and the left side of the body.
He confirmed
that the deceased was subsequently conveyed to hospital in a police
vehicle. He Jeter identified the body of the deceased
before the
medical doctor who performed the post mortem examination.

It may be
mentioned that during the course of this trial, Mr. Thetsane for the
crown informed the court that Dr. Carola Walter Kochling
who had
performed the post mortem examination over the body of the deceased
was on ex-patriate who had since returned to his home
overseas and
was therefore not available to testify before this court. Mr.
Thetsane accordingly applied that the deposition of
the medical
doctor who was P.W.1 at the Preparatory Examination proceedings be
admitted in evidence in terms of the provisions
of S.227 of the
Criminal Procedure and Evidence Act 1981. The application was,
however, opposed by Mr. Mphalane, counsel for the
defence. In that
event, Mr. Thetsane had no alternative but to adduce the evidence of
P.W. 6, Limakatso Khali, who testified that
she was the Principal
Personnel Officer in the Ministry of Health, As such her duties
included recruitment of both Local and Expatriate
staff in the
Ministry. She knew Dr. Carola Walter Kochling and her husband Dr.
George. They were both peace corp volunteers from
Germany and
recruited as medical officers in March 1984. They were both initially
posted in Mokhotlong and later Hlotse Government
hospitals. When in
March 1986 their contracts expired, the two medical doctors left
Lesotho for their home in Germany. Dr. Carols
Kochling was,
therefore, presumably in Germany. She used the word "presumably"
because after Dr. Carola had left Lesotho
for Germany she (P.W.6) did
not trace if she volunteered to work in another country.

9

It was
argued that Dr. Carola Kochling might have gone to any of the
neighbouring countries where she is readily available to testify
in
this trial. In my view, the argument is not supported by the evidence
of P.W.6 and I reject it as baseless.

Mr.
Thetsane also adduced the evidence of P.W.5 Mr Ramashamole the
Resident Magistrate who presided over the Preparatory Examination

proceedings in this rase, He told the court that as it appeared on
the record of the Preparatory Examination the deposition of
Carols
Kochling who was P.W.1 was correctly recorded by him at the time of
its making. The accused who was present at the proceedings
of the
Preparatory Examination was afforded the opportu­nity to
cross-examine Dr. Carola Kochling. However, the Resident Magistrate

told the court that Dr. Carola Kochling was a male Doctor who had
since left the magiste­rial district. Regard being had to
the
evidence of P.W.6 and thy fact that the name "Carols" seems
to be a Latin word of a femine gender I am convinced
that the learned
Resident Magistrate cannot be correct in his evidence that Dr. Carols
Kochling was not a lady doctor. Be that
as it may, I was otherwise
satisfied that the deposition of Or. Carola Kochling who had since
left this country was correctly recorded
by the Resident Magistrate
in the presence of the accused. The accused was addmittedly afforded
the opportunity to cross-examine
her. In the circumstances of this
case DR. Carola Kochling cannot be compelled to attend this court
without considerable amount
of delay or expense. I accordingly
allowed her deposition to be read as evidence in this trial.

The
evidence of Dr Carola Kochling was to the effect that she was the
medical doctor who on 20th November, 1985 performed the autopsy
(Exh
A) on a dead body of a mole African adult. The body was identified
before her by Raletsoai Ntelane as that of the deceased.
The
examination revealed stab wounds on the right side of the neck
penetrating to the lung , lower chest, upper chest and lower
arm.
When opening the cavity, it was found that

10

the
pleural sac was full of blood. On these finding the doctor formed the
opinion that death was due to the stab wound on the neck.

I can
think of no good reason why Dr. Carola Kochling's opinion that the
deceased died as a result of the stab wound inflicted on
his neck
should be doubted. I am therefore prepared to accept it.

As has
been pointed out earlier, the accused raised the defence of
self-defence in that at the time he stabbed him the deceased
was also
attacking him with a knife. That was, however, denied by both P.W.1
and P.W.2, the two eye witnesses who told the court
that at the time
the accused fatally stabbed him the deceased was just talking to
P.W.1 and posing no danger at all to his (accused's)
life. I have
rejected as false the accused's story and accepted as the truth the
evidence of both P.W.1 and P.W.2 on this point
That being so,
self-defence cannot avail the accused. It was also argued that the
deceased hod falsely accused the accused of having
illicit love
affair with P.W.1 and insulted him. The accused therefore, acted
under provocation. That may be so, I have, however,
accepted the
evidence that the accused then went to his house where he armed
himself with the butcher knife exhibited before the
court before
returning to stab the deceased where he was talking to P.W.1. The
accused cannot, therefore, be said to have acted
in the heat of
passion. If any at all the provocation was not such that it could, in
our law, reduce the crime of murder to a lesser
offence. The argument
does not, in my view, hold water and it is accordingly rejected.

By and
large,I am satisfied that the deceased died as a result of the injury
unlawfully inflicted upon him by the accused person.
That being so
the only question remaining for the determination of the court is
whether or not at the time he unlawfully stabbed
the deceased to
death the accused had the requisite subjective intention to kill. If
it were borne in mind that the accused used
a leathal weapon such as
a knife to stab the

11

deceased
on the upper portion of the body, there could be no doubt that he was
aware that death was likely to result. He nonetheless
acted reckless
of whether or not death did occur. That granted, it must be accepted
that the accused had the requisite subjective
intention to kill, at
least in the legal sense.

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

Both my
assessors agree with this finding.

B.K.
MOLAI

JUDGE.

13th
November, 1987.

For Crown
Mr. Thetsane,

For
Defendant Mr. Mphalane.

CRI/T/29/86

EXTENUATING
CIRCUMSTANCES

Having
convicted the accused of murder I am enjoined by S.296 of the
Criminal Procedure and Evidence Act, 1981 to make a finding
as to the
existence or other­wise of factors tending to reduce the moral
blameworthiness of his act.

In this
regard I accepted the accused's evidence that before he stabbed the
deceased to death the latter had insulted and accused
him of having
illicit love affair with P.W.1, There was, therefore, an element of
provocation Although it may not have been such
as to reduce murder to
a lesser offence the provocation may properly be taken into account
for,purposes of extenuating circumstances.

The court
has found that in killing the deceased as he did the accused had
intention in the legal sense. Assuming the correctness
of this
finding, it must be accepted that the accused did not premeditate the
death of the deceased. The absence of premeditation
is in itself a
factor to be considered in determining the existence or not of the
extenuating circumstances.

Finally
there was evidence which I accepted that at the time he assaulted the
deceased and inflicted upon him the fatal injuries,
the accused was
under the influence of intoxication . Although the accused's
intoxication was hot such that it could constitute
a defence in this
case, it is trite law that intoxication affects the minds of people
so that they do things they would not do
when sober (S. v. Ndhlovu
(2) 1965 (4) S.A. 692 at p.695 C-E, 696 A-B). This, in my view is a
factor to be properly considered
in deciding the existence or
otherwise of the extenuating circumstances.

2

By and
large I em satisfied that there are extenuating circumstances in this
case and a proper verdict is that the accused is guilty
of murder
with extenuating circumstances

Both my
assessors agree.

SENTENCE

10 years
imprisonment which is to operate with effect from 15th November, 1985
the date on which the accused has since been kept
in prison.

B.M.
MOLAI

JUDGE

16th
November, 1987.

For Crown
Mr. Thetsane,

For
Defendant Mr. Mphalane.