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					                                                 CRI/T/29/86


               IN   THE     HIGH         COURT   OF   LESOTHO


      In the Matter of


                            R    E       X


                                     v


                     MOSALA          LIBABE
                          J U D G M E N T

        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 inten-
tionally 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
                            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
                           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
                          -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
                           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
                         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   .......
                           7

I find no good reason why P.W.4 who is admittedly an acquain-
tance 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
                           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
                           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 opportu-
nity 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 magiste-
rial 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
                          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
                            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 other-
wise 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 . ...
                           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.

				
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