IN THE HIGH COURT OF LESOTHO
In the Matter of:-
Delivered by the Honourable Madam Justice N. Majara on the 11th April 2006
This matter came before me on the 29 March 2006 wherein the accused was charged with
two counts one being the murder of one Monkoe Lenkoe and the other being assault of
Matseliso Nkoane with intent to cause her grievous bodily harm respectively. He pleaded not
guilty to both counts and the crown called six (6) witnesses to support its case.
Amongst the crown witnesses who took the stand was one 'Masechaba Seutloali who also
happens to be the wife of the accused. Although the defence did not raise any objection to her
competency and compellability as a witness for the prosecution when she was called to take
the stand, they did raise this issue during her cross examination as well as in their closing
address whereby they also referred the Court to the provisions of Section
216 of the Criminal Procedure and Evidence Act of 1981. The Section provides:-
"The wife or husband of an accused shall not be competent to give evidence for the
prosecution in criminal proceedings but shall be competent and compellable to give
evidence for the prosecution at such proceedings where the accused is charged with
a) any offence committed against the person of either of them.
c) ... " (my underlining)
Although it is not denied by the defence that the accused herein did assault his wife on the
night in question, the Crown did not prefer a charge against him for the said assault as per the
indictment which contains only the two counts as already shown above. This being the case,
the Court agrees with the defence in their objecting to the admission of her evidence albeit at
a late stage in the proceedings for as they conceded, they ought to have raised the objection at
the time the Crown called her to the stand so that the Court would have made a ruling then.
Since the exceptions as listed under Section 216 do not apply herein for as I have already
stated the accused is not charged with the assault of his wife, her evidence will be excluded in
its totality including that which was elicited during her cross-examination and I so rule
This leaves the Court to determine the two charges on the basis of the evidence of the
remaining five crown witnesses and that of the defence which on their part consisted of the
sole testimony of the accused person.
From the admissible evidence, facts which are common cause are that on the late afternoon of
the 22nd December 1999, the accused found his wife absent from their matrimonial home
and went in search of her. He eventually found her at her maiden home and it was by then
8.00 p.m. or thereabouts.
Upon arrival thereat, he found his son P.W.4 herein, his wife 'Masechaba and Matseliso, the
complainant in count 2 who is also the mother of the wife of accused. Accused then asked his
wife what she was doing there and upon getting no reply from her, hit her twice on the head
with the stick he was carrying and also dragged her outside the house. The mother tried to
intervene by pulling back her daughter whereby she was also struck two blows on the head by
the accused with the same stick.
It is also common cause that this commotion roused P.W.I who is the brother of the deceased
in casu and whose homestead is very close to that of the latter. P.W.I then went out together
with his wife and two sons, one of whom is P.W.2. in this case. It is also not denied that upon
arrival at the deceased's house they found the wife of the accused sitting outside on the
courtyard where she had slipped and fallen whilst the accused was trying to drag her home
with the accused standing nearby.
It is also common cause that sometime during that night the deceased who was the father in
law of the accused came out and was stabbed with a knife by the accused.
According to the evidence of P.W.I and P.W.2, upon arrival at the deceased's house they
found both 'Masechaba and the accused as already
stated above, and upon examining 'Masechaba, they noticed that she was bleeding from
injuries on her head. P.W.I asked what the matter was and it was at that time that the
deceased came out of the other house where he had presumably been sleeping. Both
witnesses testified that the deceased asked the accused whether as was usual, he had come to
his house to cause trouble. It is at that stage that they saw accused rush towards him without
favouring him with any response whereby they then heard the deceased utter the words "U se
a ntlhabile!" which were interpreted to the Court as "He has stabbed me!"
The two witnesses further testified that P.W.2 and his brother Ret'selisitsoe tried to give chase
but were outran by the accused who from a distance challenged all of them to come as he
would kill them and proceeded to insult them by their mothers' private parts. They then went
back and that is when they noticed that Matseliso, who was crying also had injuries on the
head. P.W.I sent one of his sons to report the matter to the chief and the remaining people
then helped the deceased, his wife Matseliso as well as their daughter, 'Masechaba into the
The following day the 23rd December 1999, all the three injured people went to the Mafeteng
Hospital where they were treated as outpatients, given medicine and sent back home. On the
next day, per P.W.l's testimony, he went to check on the deceased and found him still in bed.
He was still alive but when P.W. 1 asked after his health, he did not respond and the witness
went out to the kraal. When he came back into the house where the deceased was sleeping he
noticed that the latter was no longer alive.
After reporting the matter to the family and the chief, the deceased's body was eventually
conveyed to the Mafeteng mortuary where a post-mortem was carried out after the deceased's
body was identified to the doctor P.W.6, who was also called to come and testify. According
to the doctor's evidence and the post-mortem report, the deceased died as a result of massive
blood loss due to the laceration on the liver caused by the stab wound. The doctor further
testified that the deceased could not have died from any other cause.
In his defence, accused did not deny that after he found his wife at her maiden home, he
asked her what she was doing there and when the latter did not reply, he hit her with the stick.
He however testified that when Matseliso tried to intervene he hit her by mistake because the
blows were aimed at his wife and not her.
It was accused's further testimony that he did drag his wife outside whereby she slipped and
fell down. He then let go of her and insisted that they should both leave. It was then that
P.W.I together with P.W.2 and Retselisitsoe arrived at the scene. Per his version, P. W. 1 then
asked "Who is that, Sentle? Beat him up!" He then retreated and they came to him and beat
him with sticks whereby he sustained an injury on the forehead from which he started
Accused further told the Court that they kept on belabouring him with sticks and that by that
time there were a lot of people whom he did not recognize because his face was now covered
with blood. It is then that he felt he had no option and pulled out a knife from his pocket and
just lashed out with it
without aiming at anyone in particular. They then retreated and he was able to flee.
It was the case of the defence that when he hit Matseliso on the head with his stick, accused
had no intention to cause her grievous bodily harm but that he did so by accident when he
was actually trying to hit his wife. With regard to stabbing the deceased, it was his case that
he was acting in self-defence because he felt his life was in danger from the blows being
delivered on him by the people who were there, none of whom he recognized apart from
P.W.I, P.W.2 and Retselisitsoe whom he saw upon their arrival.
It is against this backdrop that the issues for determination by this Court are firstly, whether
the accused did assault Matseliso with the intention to cause her grievous bodily harm.
Secondly, whether he stabbed the deceased with the intention to kill him or whether he
indeed acted in self-defence.
From the evidence of P.W.4, who also happens to be accused and 'Masechaba's son, he was
standing in the doorway of Matseliso, his maternal grandmother's house when accused
arrived and asked where his wife was. He replied that she was inside the house and was not
feeling well. The witness also testified that accused went into the house and orderd
'Masechaba that they should leave whereupon he then saw accused hit his mother twice on
the head with the stick he was carrying.
It was also P.W.4's evidence that when his grandmother, Matseliso tried to intervene, accused
also hit her with the same stick on the head and that is
when he, P.W.4 left the house crying and took the direction of P.W.l's homestead.
This particular witness' evidence on the issue of accused hitting 'Matseliso with the stick was
not challenged at all during his cross-examination. The defence only contented itself with
questions regarding the fact that during the Preparatory Examination when giving his
testimony, P.W.4 mentioned that P.W.I went back inside and came out carrying a stick upon
hearing someone crying. Further that he failed to mention this factor in his evidence in chief
when testifying in these proceedings until it was elicited from him under cross-examination.
It was not suggested by the defence that this witness told the Court untruths when he testified
that the accused hit Matseliso with the stick nor that he had any reason to falsely implicate his
father. The issue of the blows on her being an accident was also never suggested to him and
he never had the opportunity to agree or disagree with it. This factor coupled with the fact
that accused did not deny having hit Matseliso twice on the head leads this Court to the
conclusion that he in fact deliberately and intentionally hit her. Even his conduct afterwards
was not by a long shot that of a man who had hit his mother-in-law by accident.
For instance, nowhere did he show that he even stopped to see where and how badly he could
have injured her or offered her any assistance. This Court would expect a reasonable and
respectful person to have done so instead, accused simply dragged his wife out of the house
as if nothing had
happened clearly in an aggressive mood and unremorseful of the fact that he had also hit his
mother in law.
This being the case, the Court accepts the evidence of the Crown on this issue as an unshaken
truth and rejects that of the defence as palpably false. Although the Court was not told why
the crown failed to call Matseliso to the stand the available evidence is enough to convince
the Court that the accused did assault her with the intention to cause her grievous bodily
This brings me to the next issue of whether when stabbing the deceased, accused was indeed
acting in self-defence. As I have already shown P.W.I and P.W.2's evidence was to the effect
that when they went to the deceased's house following the alarm or upon hearing someone
crying, they found the accused and his wife outside and the latter was injured.
When the deceased came out of the other house and asked accused whether he had come to
cause trouble at his house he got no reply instead they saw accused rush towards him where
the deceased was then heard to utter the words, "He has stabbed me!" When P.W.2 and
Retselisitsoe went after him he ran away and a distance away, proceeded to challenge all of
them to come as he would kill and also insulted them by their mothers' private parts.
During cross-examination of the crown witnesses it was put to them that at the time they
arrived at the scene the accused was already injured as he had already been in a fight with the
deceased and that the deceased got stabbed when accused was defending himself. The
witnesses remained unshaken that the deceased only came out of the other house when they
at the scene and that upon enquiring from the accused whether he had brought trouble at his
house the latter did not reply but rushed towards him and they then heard the deceased say he
had stabbed him. They were also firm in their evidence that no-one assaulted accused. Their
evidence that accused challenged and insulted them was also not challenged at all.
Contrary to what was put to the crown witnesses during cross-examination, in his evidence in
chief, accused testified that he did not see the deceased at all that night but that after P.W.I,
P.W.2 and Retselisitsoe came, 'they assaulted him'. He then saw a lot of people attacking him
although he failed to recognize even one of them. It is then that he took out the knife and
blindly lashed out with it, in self-defence.
These are clearly highly contradictory statements on a very important issue of when and how
accused took out the knife and stabbed the deceased. Under cross-examination, the defence
suggested that the deceased was stabbed before they arrived at the scene yet in his evidence
in chief accused testified that he did not see the deceased and only did the stabbing after the
witnesses had arrived at the scene and 'they' were assaulting him.
Over and above this major contradiction, what the Court also finds amazing is that accused
failed to recognize even one of the other people who allegedly arrived and joined in when he
was being assaulted. Secondly, per his version, he sustained only one blow despite being
surrounded by so many people using sticks on him. Thirdly, he never even told the Court who
dealt him the first blow and lastly nobody saw him with an injury either on that night, the
next day or any day soon thereafter.
Further, it is not very clear how despite being surrounded by so many people belabouring him
with sticks as he alleges, accused managed to get to one of them (the deceased) with a much
smaller/shorter, albeit dangerous weapon which requires one to get very close to a person to
be able to use it effectively and stabbed the deceased on the chest area. Whilst this is not
totally impossible, it is highly improbable and under the circumstances, not even reasonably
During cross-examination when asked whether he went to see a doctor for the 'serious' wound
he allegedly sustained during this attack, he answered in the negative. Upon being asked why,
he gave two conflicting answers, firstly he said it is because he was arrested but when it was
put to him by the crown counsel that he was only arrested about two days after the incident he
said it is because he did not have any money.
It is the opinion of this Court that if indeed the accused acted in self-defence when he stabbed
the deceased, a wound which eventually proved fatal, such an important fact as sustaining an
injury necessitating him to act the way he did ought to have been proven by him. He failed to
bring even one independent witness to corroborate him that he was truly injured on the night
Although it is not impossible for one not to see a doctor after sustaining an injury, surely one
can bring other evidence to support such an important factor in one's defence. The defence in
casu failed to do this. How then is this Court expected to believe that he indeed sustained an
injury resulting from being assaulted by a group of people? Surely it is difficult for the
Court to believe him because he simply says so and this against the overwhelming evidence
of the crown witnesses.
The position of the law on what are the legal requirements of self-defence has been stated in
many authorities and I only need to mention that accused herein has lamentably failed to
satisfy even one of them in that his defence is riddled through and through with
contradictions on the most important aspects of the incident.
True enough whilst in the witness box, accused pointed out a scar-like mark on his head
which he maintains resulted from the wound he sustained on that night. However in the
absence of any other proof that firstly, that was just not a birth-mark, or if indeed it was a
wound, it was not sustained either earlier or even much later after the incident had already
taken place, this did not help the Court to conclusively say that the mark was indeed a scar
caused by the wound sustained on the night in question.
This is especially so in the light of the fact that he failed to bring any proof other than his own
word, which was denied by the crown and also contradicted himself in his defence with
regard to exactly at what stage he alleged got injured and by whom.
All these factors taken together lead this Court to only one conclusion; that accused' story is
not only improbable but is down right false and the Court accordingly so rejects it.
I now come to the question of whether the deceased died as a result of the injury caused by
the stab wound.
It was suggested by the defence that the fact that the deceased was treated as an outpatient
having been given some medication at the hospital was negligence on the part of the hospital
and that as such constituted a novus actus interveniens which caused the death of the
deceased. The defence based themselves on the theory that where a person's liver is damaged,
medical drugs are usually not prescribed for such a patient and that in casu this is what
possibly caused the death of the deceased.
P.W.6, Doctor Mpholo testified that the death of the deceased was due to excessive bleeding
resulting from the laceration on the liver which was caused by the stab wound. Under cross-
examination, he told the Court that whilst the defence's theory is correct, i.e. that where a
person's liver is damaged it is not advisable to prescribe drugs, that is the case where damage
to the liver is toxic and not mechanical such as happened in casu.
By toxic and mechanical respectively the doctor explained that the former could result from
factors such as alcohol and other drugs and that the latter has nothing to do with drugs but
could be due to some external factor such as a stab wound as happened in casu in which case
there was no danger in medical drugs having been prescribed.
Although the defence had earlier suggested that they might call another doctor to the stand to
establish negligence, they decided not to do so. This left the Court with the evidence of the
prosecution doctor alone as far as
determining what the cause of death was. True enough, the doctor did concede that if the
deceased had been attended to by a medical doctor on the day he arrived at the hospital he
might have been operated on. He also conceded that it is possible that the deceased was
attended to by a nurse due to shortage of staff at the government hospital. He was however
adamant that the prescription of drugs in this case was not wrong because the damage on the
liver was non-toxic.
This brings me to the next question, what is meant by a novus actus interveniens? In
simplistic terms this means a new intervening act in the absence of which death would not
In his work, South African Criminal Law and Procedure Vol II 3rd Edition at p 341 JRL the
learned author Milton states that:-
"The question whether medical intervention can constitute a novus actus depends
upon the type of intervention involved"
He then goes on to look at the different decisions whereby this issue was considered starting
with that of S v Williams 1986 (4) SA 1188 and several others and on the basis of these
decisions at p 344 (Supra) he opines as follows:-
"The approaches set out above vary according to the importance respectively
attributed to three factors: (i) whether the wound is serious; (ii) whether improper
and/or negligent treatment is given; (in) whether the wound is simply a setting for a
decisive medical act which (physiologically) causes death without the assistance of
the wound. "
He concludes as follows:-
"Bearing in mind that in modern times medical proficiency is normal and that negligent,
improper procedures are abnormal, it is submitted that the rule should be: medical
treatment which is carried out bona fide is a novus actus only if: it is negligent; and but
for that medical negligence (and supposing proper, careful treatment) Y would not have
died when he did.
Applying the above test in casu, the next question would then be whether the fact that the
deceased was treated as an outpatient and given drugs constitutes negligence. In this regard
the onus was on the defence to prove that this procedure did amount to negligence but for
which death would not have resulted.
As I have already shown earlier, P.W.6 did agree during his cross-examination that had the
deceased been examined by a medical doctor, the wound would probably have been sutured.
He however also testified that the prescription of drugs in this instance was permissible
because the damage on the liver was non-toxic but mechanical.
It is therefore my opinion that all factors considered, the mere fact that the deceased's wound
was not sutured due to a shortage of medical doctors does not amount to negligence as
envisaged by the authorities. It is my belief that what took place would be tantamount to a
situation where after being wounded by another, a person is unable to receive prompt medical
treatment due to circumstances such as being too far from a health centre, not being able to
afford transport and/or medical fees for such treatment, lacking means of conveyance to reach
a health centre on time etc. Under such
circumstances if death results it cannot successfully be argued that non-failure to receive
medical treatment constitutes a novus actus interveniens.
It was therefore imperative for the defence in casu to have placed evidence before the Court
which would support their submission. This is especially the case when account is taken of
the evidence of P.W.6 who testified that death resulted from excessive bleeding caused by the
stab wound. This means that the defence failed to discharge the onus to have brought
conclusive evidence establishing negligence or a novus actus interveniens. The mere
suggestion that negligence was possible on the part of the hospital was certainly not enough.
Count 1:- Murder
Although the Court accepts the crown's evidence and rejects the accused's version as false in
that he was not acting in self defence, the next question is whether this court should find him
guilty of the crime of murder.
Murder is defined as the unlawful and intentional killing or causing the death of another
human being. The evidence has already established the existence of two of the elements of
murder, to wit, unlawfulness and killing of a human being. The third element which this court
has to determine is whether or not the accused had the intention to kill the deceased. It has
been stated in a number of decided cases that for the crime to be murder the Crown has to
prove intention as against negligence and such proof must be
beyond a reasonable doubt. In his work, Criminal Law 3rd Edition 1995 p 173 CR Snyman
states that the test in respect of intention is purely subjective. He continues as follows;
"...the question is never whether he should have foreseen the result but whether he
foresaw it as an actual fact. "
Applying the same test in casu, as gathered from the evidence, accused intention may well
not have been to kill at the time he lunged at the deceased and stabbed him with the knife.
However, he knew or should have known that if he stabbed the deceased, the latter might die.
He nevertheless went ahead and stabbed him, not to mention that it was on a vulnerable part
of the body.
In other words, from the evidence, when stabbing the deceased, accused was indeed reckless
whether death would ensue or not. For these reasons, the Court finds that he had the dolus
eventualis i.e. (reconciled himself with the ensuing result), death of a human being. See
Snyman (Supra) p169. See also the unanimous decision of the Appellate Division in the case
S v Malinga and Others 1963 (1) SA 692 at p 695.
For the above reasons, the accused is found guilty of the crime of murder with extenuating
factors to wit, that there is no evidence that he premeditated the murder and secondly, that he
did not stab the deceased repeatedly which factor might have suggested that he directly
intended to cause his death.
COUNT II:- ASSAULT WITH INTENT TO CAUSE GRIEVOUS BODILY HARM
With regard to this count the Court finds that the crown has proved its case beyond a
reasonable doubt for the reasons as already stated above. The defence failed to rebut the
crown's evidence that accused hit Matseliso with the intention to cause her grievous bodily
harm. The evidence that accused struck her by accident when the blows were actually
intended for his wife is rejected in its totality.
My reasons for so finding are firstly that the evidence of P.W.4 who witnessed the assault
was not challenged at all in all its material respects and secondly that accused entire conduct
at the time of the incident belies inadvertence on his part as this Court has already stated in its
analysis of the evidence before it. He is accordingly found guilty as charged.
My assessors agree.
The issue of sentence is undeniably the most difficult one in any criminal trial. This is more
the case where there has been loss of life of another human being. On the one hand, in
deciding the appropriate circumstances in this case the Court takes into account the
extenuating factors as already mentioned above. It also considers the mitigating factors as
relayed to the Court by the defence Counsel to wit, that accused is the sole bread winner of
his family, is a first offender without any previous convictions and that he voluntarily handed
over the murder and assault weapons to the police.
On the other hand, as it is its duty, the Court also takes into account the interests of the
complainant in Count II and deceased's family, coupled with its duty to society to discourage
and punish crime.
In this case, accused committed a reprehensible act of disrespecting and assaulting both his
parents-in-law at their house for no reason at all, a factor which as a Mosotho I find very
alarming. I know how highly revered and respected in-laws are in this country. Accused
actions deserve the highest censure and the Court must show its displeasure by meting out the
kind punishment that will not only be deterrent to him but will also be exemplary to other
members of the society.
Whilst I agree that his immediate family will suffer if he is incarcerated, I cannot allow
accused to go scot-free and have the duty punish him for his senseless and unprovoked
actions. Not only did he kill his father-in-law, he also assaulted his mother in-law at their
home. What offence could they have possibly committed to have warranted that kind of
treatment in the hands of their son-in-law? I find none whatsoever.
For the above reasons I accordingly find that the appropriate sentence would be that of
imprisonment for a period of fourteen years (14) years in respect of count 1 and
imprisonment for a period of one (1) year without the option of a fine in respect of count 2.
I also order that both sentences should run concurrently.
Exhibit 1 collectively shall be forfeited to the state and be destroyed.
For the Crown : Mr Mapetla Ms Makholela
For the Defence : Mr Lesuthu Mr Falatsi
Assessors : Mr Motsamai Mrs Lebusa