CRI/T/18/86.
IN THE HIGH COURT OF LESOTHO
In the matter of : .
REX
v
Ghoatla Matobo
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 23rd day of June, 1987.
The accused is before me on a charge of murdering one 'Mamosa Matobo, it being alleged that on or about 27th May, 1985 and at or near Majakaneng in the district of Mafeteng he unlawfully and intentionally killed the deceased.
During the course of the trial, Mr. Monyako who represents the accused, told the court that the defence would not dispute' the depositions of 'Makutlenyane Malobe, Dr. S.W. Moore, D/Tpr Ntlama and Dr. Agyei who were respectively P.W. 2,6,8 and 10 at the proceedings of the Pre-paratory Examination. Miss Moruthoane for the crown accepted the admissions made by the defence with the exception of the deposition of D/Tpr Ntlama whom she intended calling into the witness box to clarify a few things.
In terms of the provisions of S. 273 of the Criminal Procedure and Evidence Act, 1981 the depositions of P.W.2, 6 and 10 at the proceedings of the Preparatory Examination were accordingly accepted as evidence and it became unnecessary, therefore,to call the deponents as witnesses in this trial.
Briefly the evidence heard by the court was that adduced by P.W.7, D/Sgt Monyane who testified that on 6th July, 1985 (it should really read 6th June, 1985) he received a
2
report following which he proceeded to a certain house in the village of Mahloenyeng where he found the dead body of the deceased. On examining it he found that the body had multiple injuries on the head, above the left ear. on the forehead and on the left side of the neck. The injuries were not fresh although not completely healed. He conveyed the body in a Government vehicle to Scott hospital in Morija where a post mortem examination was conducted. No additional injuries were sustained by the body whilst it was being transported from Mahloenyeng to the hospital.
According to Dr. Moore he was the medical doctor who, on 8th June, 1985, had performed the autopsy on the body of the deceased. The body was identified before him by one Mosa Matobo, who,was, however, not called as a witness in this trial. The examination revealed the following findings : 8cm open wound on top of the head, 2 lacerations on the left side of the frontal area of the skulp and a bruise above the left ear. Although there was no fracture of the skull there were signs of slight bleeding into the brain. In. the opinion of Dr. Moore a blunt instrument had been used to inflict the injuries and death was due to head injuries. It was also possible that shock resulting from the injuries and other natural causes relating to her old age had contributed to the deceased's death.
Assuming the correctness of Dr. Moore's evidence that the deceased died as a result of the injuries inflicted upon her, the question is who had caused those injuries and therefore brought about her death. In this regard the court heard evidence that the deceased, an elderly woman of about 91 years of age lived in the same house with her daughter-in-law, 'Mamatobo Matobo and Mothepu Matobo, the younger brother of the accused.
The house itself was a six roomed-house, four bedrooms, a kitchen and a living room. Mamatobo Matobo and two children slept in one of the bedrooms. The other two bedrooms were each used by Mothepu Matobo and the deceased respectively. The accused himself lived with one of the relatives in the same village.
3
On the evening of 27th May, 1985, the accused called at the deceased's home where he found his younger brother, Mothepu Matobo, ill in bed. He decided to spend the night with him. They were on that night both sleeping in the same bed when, according to Mothepu Matobo, the accused suddenly delivered a blow on him with a strainer which he had taken from the wall where it was hanging. Mothepu Matobo warded off the blow with his hands and jumped out of the bed. When he asked him why he was assaulting him, the accused,who was clearly in a fighting mood, asked whether he did not see the "Lithokolpsi" coming to him (accused). Mothepu ran out of the room and went to the room in which 'Mamatobo was sleeping. He was unable to open the door of that room and so ran out of the house.
'Mamatobo Matobo gave evidence on oath and told the court that on the night in question she and two children, Mphu and Ramakhema, were sleeping in their bedroom when she noticed that the accused was in their room. She asked him what the matter was and the accused replied that witches were surrounding him. She told him that there were no witches in the house and he should go to bed. The accused then started screaming and making a lot of noise.
Sensing that there was something mentally wrong with the accused, 'Mamatobo rushed out of the house to seek assistance from neighbours. The two children who had been sleeping with her followed 'Mamatobo out of the house. Outside the house 'Mamatobo and the two children were joined by Mothepu Matobo who had been standing outside the kitchen door. They all ran to the home of one Motsoane to ask for help. Motsoane was, however, not in. As they left Motsoane's place, 'Mamatobo and Mothepu heard the accused's voice shouting down the village. They then returned to their house.
On arrival at the house, they noticed that there was no light in the deceased's room which was always lit 3t night. As they entered into the house. the deceased who was the accused's grandmother pleaded with 'Mamatobo to put on the light for the accused had killed her. 'Mamatobo. did put on the light and found that the deceased had injuries on the
4
head and the body. Her head and night dresses were covered with blood. There were also blood stains on the walls- She immediatley went to report to the chief whom she found at the home of one Thelingoane where there was a night virgil. The accused who was causing trouble and noisy at the night virgil was caught hold of and fastened by men.
The evidence of 'Mamatobo that the accused was troublesome at the night virgil was confirmed by Taolana Kokami, Mohoba Pitso and Mahlomola Matobo, three of the village men who attended the night virgil on the night in question. According to them when he arrived at the night virgil. the accused was very violent and wielding a stick with which he started beating up people indiscriminately. In an attempt to disarm him, Taolana Kokami caught hold of the,accused who, however, stabbed him with a knife. The accused then boasted: "Taola li laola bakoena, ke bolaile nkhono". (loosely translated : "divining bones point to bakoena, I killed my grandmother"). Although he did not understand what the accused meant by "Taola lia laola bakoena. Ke bolaile nkhono" Taolana Kokami told the court that he knew that the accused belonged to the clan of bakoena.
Mohoba Pitso and Mahlomola Matobo confirmed that the accused was ultimateJy overpowered and fastened by the village men after which he was escorted to Ben's place where he normally slept. 'Mamosa Matobo together with the Chief Mokhitli and the village men then went to the deceased who was on the same night transported in a vehicle to the Government hospital at Mafeteng.
On the following day, 28th May, 1985, the accused was also escorted to the hospital by Mahlomola Matobo. At. the hospital Mahlomola was directed to take the accused to the mental health unit of the hospital where he started asaulting people. He was given an injection and allowed to return home. On the way, the accused became very drawsy and Mahlomola had to carry him in a wheelbarrow.
Dr. Agyei confirmed that on 28th May, 1985, the deceased was referred to him at Mafeteng Government hospital. On examining her he found that the deceased had multiple stab
5
wounds on the sculp and upper trunk. The wounds were relatively deep and those on the sculp reached the bone. He formed the opinion that the wounds had been inflicted by the use of a sharp instrument and considerable degree of force was applied. The wounds had to be stitched and the patient was admitted until 6th June, 1985 when she was discharged in a stable condition.
It is significant to observe that while Dr. Agyei says the injuries on the deceased were; inflicted with a sharp instrument , Dr. Moore's evidence is that they were inflicted by the use of a blunt instrument. The evidence of the two doctbrs has, therefore, a discrepancy on this point. It must however, be borne in mind that at the time Dr. Agyei examined her, the deceased was still alive and her injuries fresh. On the other hand the deceased was already dead and the injuries stitched at the time Dr. Moore examined her. For this reason, it seems to me, Dr. Agyei was in a better position than Dr. Moore to see the nature of the injuries and determine the type of instrument used to inflict them. I am inclined, therefore, to accept as the truth Dr. Agyei's version to that of Dr. Moore on this point.
Returning to her evidence. 'Mamatobo testified that when the deceased was discharged from the hospital on 6th June, 1985, she ('Mamatobo) and her husband, Mosa Matobo, conveyed her in a vehicle to the home of her ('Mamatobo's) sister-in-law at Mahloenyeng in the area of Matsieng. They left the deceased together with her medicines from the Mafeteng hospital in the hands of the sister-in-law to whom the instructions on how to administer the medicines were explained. On the same day, 6th June, 1985, 'Mamatobo and her husband returned to their home at Majakaneng.
The evidence of 'Makutlenyane Malobe was that her home is in the area of Mazenod. In June 1985 she was on a visit at Mahloenyeng where she was assisting 'Mamatobo's sister-in-law to harvest her crops. She confirmed that on 6th June, 1985 the deceased was brought to the home of 'Mamatobo's sister-in-law at Mahloenyeng. She and 'Mamatobo's sister-in-law slept in the same house with the deceased on the
6
night she was brought to Mahloenyeng. At about dawn on that night they wanted to assist the deceased so that she could change her sleeping position. They, however, found that the deceased had already passed away.
D/Tpr Ntlama told the court that on 11th June, 1985 he received a report following which he proceeded to the home of accused. He met and question the accused about the death of the deceased. Although he was not coherent in what he said, the accused's reply was that he did not know anything about the deceased's death. On the basis of information received during his investigations, the detective Trooper nonetheless cautioned, arrested and charged the accused as aforesaid.
The accused himself gave evidence on oath and told the court that he did not know anything about the events of 27th May, 1985, All he remembered was that in the afternoon of that day he was returning home from the velt when he felt that he was suffering from a headache. He called at the home of one 'Ma-Alina to ask for a snuff to inhale so that he could sneez. When 'Ma-Alina said she had no snuff, a certain Phiri who claimed to be a Sesotho doctor or herbalist offered him some powdered medicine which he said would cure the headache. Immediately after inhaling that medicine, the accused started sneezing and lost his senses. He regained his senses only on Sunday following the 27th May, 1985 when he realised that he had been assaulted and injured. He later learned that the deceased, his grandmother, had died as a result of the, injuries he had allegedly inflicted upon her. He loved the deceased very much and felt very sorry for her death.
Although there is no direct evidence that the accused assaulted and injured the deceased, there is ample evidence indicating that on the night in question he behaved in so belligerent a manner that Mothepu and 'Mamatobo had to run out of. the house leaving him alone with the deceased. Soon after the accused had left the house, the deceased was found brutally assaulted and complaining that the accused had killed her. There is also evidence that when he left the deceased's house, the accused went to the home of one Thelingoane
7
where there was a night virgil. Oh arrival at the night virgil he was violent and started assaulting people indiscriminately for no apparent reason. There is. in my opinion, sufficient circumstantial evidence indicating that the accused is the person who did assault and injure the deceased on the night of 27th May, 1985.
Although the defence did not raise a plea of insanity and the accused appeared quite sane before the court, I was, on the evidence, somewhat disturbed about his mental state. I accordingly issued an order referring him for observation by a psychiatrist. In this regard Dr. Mohapeloa, the Director-of Mental Health Services testified that he was the psychiatris who examined the accused, read the depositions made by various witnesses at the Preparatory Examinations and interviewed some of his relatives. In his opinion, the accused is quite fit to stand trial. Oh the other hand the accused's actions at the material time are consistent with those of a person in a state of diminished responsibility due to an isolated acute psychotic episode (i.e. insanity) and the episode lasted for several days.
I have no good reason to doubt the evidence of Dr. Mohapeloa that although the accused has no signs of mental illness and is now fit to stand trial, he was, at the time he assaulted and injured the deceased, suffering from insanity.
The next question for the determination of the court is whether or not the deceased died as a result of the injuries inflicted upon her by the accused. It is to be remembered that after she had been assaulted and injured, the deceased was taken to Mafeteng Government hospital where she received medical treatment. According to Dr. Agyei, when on 6th June, 1985 she was discharged from the hospital, the deceased was in a stable condition.
Although some medicines were handed to 'Mamatobo with instructions on how to administer them on the deceased, 'Mamatobo passed the medicines and the instructions to her sister-in-law who was, however, not called as a witness
8
in this trial. We do not therefore, know what medicines they were nor do we know how they were administered on the deceased. The possibility that death could have been precipitated by the medicines or the manner in when they were administered on the deceased remains a real one. There is, therefore, a doubt whether or not actus novus interviniens exists in this case. The benefit of such a doubt is, in our law, always given to the accused person. That being so, the question I have earlier posted viz. whether or not the deceased died as a result of the injuries inflicted upon her by the accused must, be answered in the negative.
From the foregoing, it stands to reason that the view that I take is that the accused can at the most be convicted of assault with intent to do grievious bodily harm. As he was insane at the time he assaulted and injured the deceased the proper verdict should be "guilty of assault with intent to do grieveous bodily harm but insane at the time he commited the act" He is accordingly convicted.
In the circumstances. I have no alternative but to order that the accused be sent to prison pending the signification of his Majesty the King.
My assessor agrees.
B.K. MOLAI
JUDGE
23rd June,,1987.
For Crown : Miss Moruthane,
For Defence: Mr. Monyako.