IN THE HIGH COURT OF LESOTHO
In the matter of :
KHOTSO THABO PAMA
Delivered by the Hon. Acting Mr. Justice S. Peete on the 19th July, 1985.
The accused, a 23 year old Mosotho man appeared before this Court on a charge of murder of one Morero Senamolele on the 3rd May 1983 at Matsoaing in the district of Leribe.
It appears from the file, that on the 6th May, 1985, my brother Kheola J. ordered that the accused be examined by a psychiatrist as he appeared mentally unwell and the psychiatrist was asked to make a full report. This report was consequently made regarding the accused's mental condition and fitness to plead and to stand trial and was handed in to the Court I presided over; and in the opinion of Dr. Mohapeloa, the accused had no mental illness but the doctor reported that the accused was a person of "low-average intelligence" and tended "to talk in a rambling and sometimes irrelevant manner" - but that he was fit stand trial and was not insane.
The accused, legally represented by Mr. Matlhare, pleaded not guilty to the indictment.
The Crown called one Kereruoe Rantso who told the Court that on the 3rd day of May 1983 he was in the company of the deceased and as they were going towards the village 3hop to buy some tobacco, the deceased who was drunk on that day, met the accused and there was an altercation with the accused and apparently some insults were exchanged.
The next witness was Tongoane Nkhasi, a local headman, who told the Court that on that very same evening he encountered the accused and deceased who were still quarrelling. He heard the accused say " "Other persons who are like yourself are usually slaughtered like goats." These were apparently addressed
to the deceased. The headman says he expelled the two men and they parted. He goes further to say
that on the morning of the 4th May 1983 he saw a spoor which led him to a dam. He also saw a black boot
belonging to the deceased lying near a garden. At the dam, he says he found the deceased lying face up in the water, he had wounds on the forehead and at]
the back of the head. These was a belt tightly fastened around his neck. There was a piercing wound behind the gullet or trachea.
The police arrived soon afterwards and they picked up a blood-stained splinter of a stick, and another boot belonging to the deceased. The accused was not in the village then but was subsequently arrested in Butha-Buthe. He later pointed out the stick which was hidden somewhere near the village. This stick and the splinter fitted well. When he was arrested, the accused was holding the timber stick belonging to the
The doctor, Dr. Merkens who conducted the post mortem examination had, at the time of the trial, since left the country, and his deposition made at the time of the trial, since left the country, and his deposition made at the preparatory examination was admitted in terms of section 227(1) (a) of the Criminal Procedure and Evidence Act of 1981. The Crown Counsel, Mr. Lenono, made an application in terms of the said section and led the evidence on oath of Mrs. Arabang Maruping, Director of Health Services,
to show that Dr. Merkens had since left for Holland after his contract of service had ended; the court exercised its discretion accordingly and admitted the deposition as evidence and it was read into the record (R. v. Mathapelo Moeti, 1974-75 LLR. 6). The cause of death was severe brain injury. The Crown then closed its case and the accused also closed his case without giving evidence.
In the present case, there is strong prima facie evidence which, however, is circumstantial. There is no doubt that the accused inflicted the wounds which caused the death of the deceased. They were seen quarrelling by about two witnesses one of whom even heard when the accused say "Other persons who are like yourself, are usually slaughtered like goats." He was found holding the stick belonging to the deceased on being arrested. He pointed out a stick that fitted well into the splinter found near the scene of the crime. The failure of the accused to give evidence indeed leaves this Court in no doubt whatsoever that he is the person who inflicted the fatal injuries.
(S. v. Theron.1968(4) S.A. 61).
The next inquiry is whether the accused is guilty of the crime of murder or to a lesser offence. The Court takes note of the fact that the accused was insulted by the deceased and being a person of low-average intelligence, he probably took offence easily and inflicted these injuries. The nature of the injuries are indeed rather unusual especially the bruising of the throat and the tying of the belt around the neck I am however not satisfied beyond doubt has the necessary mens rea for murder was proved, I find that the accused knew what he was doing when he inflected these injuries, he was not insane, but he is not endowed with ordinary or normal faculties. I find him guilty of culpable homicide.
Three years' imprisonment two years of
which are suspended for three years on condition that that during the period of
suspension the accused is not convicted of an offence involving violence to person for which offence he is sentenced to an imprisonment of six (6) months or above without an option of a fine.
19th July, 1985.
For the crown : Mr. Seholoholo.
For the defence : Mr. Matlharp.