R v Sentikolo (CRI/T/4/2001 )

Case No: 
CRI/T/4/2001
Media Neutral Citation: 
[2003] LSHC 25
Judgment Date: 
20 February, 2003

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CRI/T/4/2001

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

vs

LEBOHANG SENTIKOLO


JUDGMENT


Delivered by the Honourable Mr. Justice B.K. Molai on 20th day of February, 2003


The accused person appears before me charged with the crime of murder on the following allegations:


"In that upon or about the 12th day of January, 1992 and at or near Ha Khoori in the district of Mafeteng, the said accused did unlawfully and intentionally kill 'Mathapelo Mahamo."


When the charge was put and explained to him, the accused person pleaded not guilty. Mr. Mahase who represents the accused, in this case, informed the court that the plea of not guilty, tendered by the accused person, was in accordance with his instructions. The plea of not guilty was accordingly entered.


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Three (3) witnesses were called to testify in support of the crown case. No witnesses were called to testify on behalf of the accused. However, the accused person himself went into the witness box and gave evidence in his defence.


In as much as it is relevant, P.W.3, Inspector Koena, testified that in 1992 he was based at Matelile police post, in the district of Mafeteng. On 12th January 1992 he was at his duty station when he received a certain information following which he and another police officer proceeded to the village of ha Khoori. They were travelling in a police vehicle.


On arrival at the village, they went to the chiefs place where they found chieftainess 'Mashoaepane Mpiti and a number of villagers. According to P.W.3, he and the other police officer were shown a dead body of a person who was identified to them as being that of 'Mathapelo Mahamo, the deceased in this case. The dead body of the deceased was lying just behind the house of the chieftainess. P.W.3 examined the dead body for injuries and found that it had sustained a dent on the head, a broken left arm and a swollen right arm.


Continuing with his investigations P.W.3 proceeded to the accused's parental home, in the village. He found the accused in. As he already regarded him as a suspect, P.W.3 cautioned the accused and explained his rights. The accused gave an explanation as a result of which P.W.3 arrested and charged him with murder. P.W.3 and the accused then returned to the chiefs place where the accused collected three (3) pieces of a broken stick in the vicinity of the spot where the dead body of the deceased was lying. He handed them over to P.W.3.


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as pieces of the stick he had used to assault the deceased. P. W.3 took possession of the pieces of the broken stick.


Thereafter, the accused took P.W.3 to one Tsuo Raposholi, in the village. According to P.W.3, Tsuo Raposholi handed to him a timber stick (lehetlela) which the accused had allegedly also used to assault the deceased. He (P.W.3) again took possession of the timber stick. P. W.3 then returned with the accused to the chiefs place from where he and the other police officer transported the accused and the dead body of the deceased to Matelile police post and the mortuary of Mafeteng government hospital, respectively. He assured the court that the dead body of the deceased sustained no additional injuries whilst it was being transported, in the police vehicle, from the chiefs place, at ha Khoori, to the mortuary of Mafeteng government hospital.


P.W.3 further told the court that after he had properly labelled them, the timber stick and the three (3) pieces of the broken stick were kept in the police exhibit room from where they subsequently went missing. He was, therefore, unable to hand them in as exhibits, in this trial.


A post-mortem examination report compiled by a medical doctor who had conducted the autopsy on the dead body of the deceased was, by agreement of both counsel, handed in from the bar, as exh. "A". According to exh. "A", on 14th January 1992 and at the mortuary of Mafeteng government hospital, a medical doctor performed a post-mortem examination, on a dead body of a female African adult. The dead body was identified to the doctor by Tseliso Mahamo and


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Mosemako Mahamo as being that of 'Mathapelo Mahamo. The external examination revealed that the deceased was about 78 years old with a brown complexion. She had sustained a compounded fracture of the left forearm, abrasion on the right cheek and a depression on the right occipital region of the head. On opening the dead body the examination revealed that the deceased had intra-cranial haemorrhage.


On the above findings, the medical doctor formed the opinion that death had occurred as a result of intra-cranial haemorrhage due to head injuries. T can think of no good reasons why the opinion of the medical doctor that the deceased had died as a result of the injuries inflicted on her should be doubted.


The important question that arises for the determination of the court is whether or not the accused is the person who inflicted the injuries on the deceased and, therefore, brought about her death. In this regard, 'Mashoaepane Mpiti testified as P.W. 1 and told the court that she was 74 years old and the chieftainess of ha Khoori, in the district of Mafeteng. She knew the accused and the deceased, in her life time. Both the accused and the deceased were her subjects.

P.W.1 remembered that one day, in January 1992, her right hand man, by the name of Tsabalira Sebata, came to her home and lodged a complaint that he suspected the deceased to be practising witchcraft by which she had killed his (Tsabalira's) child. As a result of that complaint, P.W.1 convened a pitso at which the deceased's practice of witchcraft was to be discussed.


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According to P.W. 1, there was, on the same day, 1 2th January 1992, another death in the village. The accused's child had passed away. The child had, however, died at a different village which was the maiden home of the accused's wife. The corpse of the child had been brought to the accused's home, in the village of ha Khoori, only for burial. P.W.1 told the court that the accused arrived at the pitso soon after it had started. On his arrival, at the pitso, the accused snatched, from one Tsuo Raposholi, a timber stick with which he suddenly assaulted the deceased who was seated next to her (P.W. 1). As he thus assaulted her, the accused told the deceased that she was also bewitching him at his place of work, in the R.S.A. In the evidence of P.W.1, she and some other people, at the pitso, intervened by disarming and reprimanding the accused for what he did to the deceased. As a result of the accused's assault on her, the deceased sustained a broken arm.


After he had been stopped from inflicting further injuries on the deceased, the accused himself left the pitso. However, whilst P.W. 1 and some other people at the pitso were attending to the deceased's broken arm, the accused returned to the pitso. He was then armed with a spade. On arrival at the pitso, he (accused) went to where the deceased was being assisted by P.W.1 and others. He delivered a blow with the spade at the deceased but P.W. 1 caught hold of the spade so that the blow could not land on the deceased. The accused and P.W.1 struggled for possession of the spade. Eventually, the accused overpowered P.W.1 and took possession of the spade with which he left the place, uttering the words: "you 'Mashoaepane, I shall kill you and your son. "


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In her evidence, P. W. 1 further told the court that after the accused had left her place, she requested two ladies viz. 'Ma-right and 'Ma-white to quickly take the deceased to her house, in the village, so that the accused might not find her at the pitso. They complied. Because of the accused's threat to kill her and her son, P.W.1 herself went to hide in the village. Whilst she was at her hiding place, P.W.1 heard a scream from the direction of her home. As a result of the scream, she returned to her house. On arrival, she found the deceased fallen on the forecourt. She (deceased) had an open wound next to her right eye and blood was oozing from her nostrils. She was obviously dead. 'Ma-right and 'Ma-white were nowhere to be seen.


According to her, P.W.1 raised an alarm and sent for the police who, however, came to the scene only in the morning of the following day. Eventually the police transported away the dead body of the deceased. P.W. 1 herself did not accompany the deceased's dead body when it was being transported away by the police. She was not, therefore, in a position to tell the court whether or not the dead body had sustained additional injuries whilst it was being transported away. P.W. 1 further told the court that she and other villagers had spent the night with the deceased's dead body where it was lying dead on the forecourt of her (P.W.l's) house.


The evidence of P.W.1 was, in material respects, corroborated by P.W.2, 'Ma-right Mahamo, who told the court that, as she and 'Ma-white left P.W.l's place escorting the deceased to her house, on the instructions of P.W. 1, she noticed the accused coming towards them. On arrival to where they were walking on the


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forecourt of P.W.l's homestead the accused roughly snatched the stick with which the deceased was supporting herself as she walked and started belabouring her with it until it broke into pieces. As she was repeatedly beaten up with the stick, the deceased fell to the ground. Thereafter the accused picked up a stone with which he hit her (deceased) on the head. The deceased, who was bleeding through the mouth and nostrils, died on the spot.


According to her, P. W.2 then went to accused's home where people from the pitso had gathered. She reported to her brother and other people what the accused had done to the deceased. She confirmed that, whilst she was at the home of the accused, P.W.1 also came and reported the death of the deceased. She (P.W.1) also sent for the police who, however, came in the morning of the following day. P.W.2 and the other villagers held the night vigil at the spot where the deceased was lying dead, on the forecourt of P.W.l's home.


After they had arrived at the scene of crime, the police transported the dead body of the deceased to the mortuary of Mafeteng government hospital. P.W.2 told the court that she was one of the people who had accompanied the dead body of the deceased to the mortuary. She assured the court that the dead body did not sustain additional injuries whilst it was being transported from ha Khoori to the mortuary of Mafeteng government hospital.


As stated, earlier in the judgment, the accused person testified in his defence. Inasmuch as it is relevant, he told the court that he was illiterate. P. W. 1 was his chiftainess. P.W.2 and the deceased were his father's younger sister and


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elder sister, respectively. They were, therefore, his paternal aunts.


The accused told the court that, at the time of the incidents of this case, he was working at the mines of Rustenburg, in the Republic of South Africa. One night, whilst sleeping at his place of work, he had a dream in which he saw the deceased coming to, and strangulating him. Following the dream, the accused returned to his home at ha Khoori and went to the deceased. He informed her about his dream and asked her what it was that she had against him. In reply the deceased told the accused that, since he already knew what was disclosed to him in the dream, he should never disclose the dream to any other person. If he did, she would definitely kill him. According to him, the accused returned to his place of work at Rustenburg and, in compliance with the deceased's directive, did not disclose the dream to any other person.


However, the accused later returned home on leave. He left Rustenburg in the evening and arrived home in the morning hours of the following day. He had been drinking beers on the way although he was still sober and not drunk when he arrived at his home. On arrival at home the accused found that his child was dead. Tebelo and Thabo, the elder brothers of his father were with his wife at his home. According to the accused, Tebelo and Thabo told him to go and attend the pitso at P.W.l's home where he would hear for himself the full story of how his child had met its death.


The accused conceded that, according to Sesotho custom, one would expect the elder brothers of his father to have explained to him how his child had allegedly


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met its death, rather than sent him to the pitso to hear the story of how the child had died. He was surprised, therefore, when the elder brothers of his father sent him to the pitso to learn the details of how his child had met its death. In any event he did proceed to the pitso which was held at the home of P.W.1.


According to him, the accused arrived at the pitso at the time one Tsabalira was questioning the deceased as to why she had killed his (Tsabalira's) child. When she noticed him (accused) at the pitso, the deceased stopped answering questions that were put to her by Tsabalira. According to him, the accused was then influenced by an evil spirit when he suddenly took, from one Tsuo, a stick with which he hit the deceased two blows on the head.


It will be recalled that in her testimony P.W.1, who had been seated next to the deceased at the pitso, told the court that the accused hit the deceased with the stick on the arm which got broken in the process. Her evidence in this regard was corroborated by P.W.2. I am inclined to accept as the truth the evidence of P.W.1 corroborated by P.W.2 and reject as false the accused's version that he hit the deceased on the head with the stick he had taken from Tsuo.


Be that as it may, the accused went on to testify that after he had assaulted the deceased with the stick, he left P.W.l's place and did not again assault the deceased. He denied, therefore, the evidence that shortly after he had left, he returned to the pitso, at P.W. l's place, armed with a spade with which he attacked the deceased. However, the evidence of P.W.1 that the accused did return to the pitso armed with the spade with which he attempted to hit the deceased was, again,


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corroborated by P.W.2. In my finding it is reasonable to accept as the truth the evidence of P.W. 1 corroborated by P.W.2 and reject as false the accused's denial on this point.


Initially the accused told the court that after he had assaulted the deceased with the stick he had taken from Tsuo he never assaulted her again. He later somersaulted and confirmed the evidence of P.W.2 that he did take the stick with which the deceased was supporting herself as she walked with 'Ma-white and P.W.2 and belaboured her (deceased) with it. According to him, the accused did so because he was still confused by the death of his child. He, however, denied the evidence of P.W.2 that after assaulting the deceased, with her own stick, he picked up a stone with which he hit her on the head.


It is common cause that P.W.2 is a relative of the accused with whom she lived peacefully in their village. That being the case, there is no good reason why P.W.2 could have falsely incriminated the accused on this point. Indeed, I must mention that 1 have observed all the witnesses as they testified before the court. P.W.2 gave her evidence in a straightforward manner and 1 was convinced that she was testifying to the truth. On the contrary the evidence of the accused was, not so straightforward. For example he said one thing and later changed to another. Indeed, he himself told the court that he was confused by the death of his child. The accused did not impress me as a witness of the truth. I am not prepared to accept his evidence save where it has been supported by a more reliable witness.


Considering the evidence as a whole, there is not the slightest doubt, in my


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mind, that the answer to the question I have earlier posted, viz. whether or not the accused is the person who assaulted the deceased and inflicted upon her the injuries that brought about her death, must be in the affirmative.


The next question for the determination of the court is whether or not in assaulting the deceased, as he did, the accused had the requisite subjective intention to kill. Intention is a matter of inference i.e it is not something that can be reached with any of our five (5) senses. In the instant case, I have accepted the evidence that the accused assaulted the deceased with sticks and stone on the arm and head which are upper portions of her body and, therefore, vulnerable. In assaulting the deceased as he did, particularly on the head, the accused must have realised that death was likely to occur. Nonetheless, he did so regardless of whether or not it did occur. That being so, the only reasonable inference to be drawn is that in-assaulting the deceased on the head, as he did, the accused had the requisite subjective intention to kill, at least in the legal sense.


In the result, 1 come to the conclusion that the accused did commit the crime of murder, against which he stands charged. He is accordingly convicted.


EXTENUATING CIRCUMSTANCES


Having convicted the accused of murder, the court is now enjoined by the provisions of section 296 of the Criminal Procedure and Evidence Act, 1981, to determine the existence or otherwise of any factors tending to reduce the moral blameworthiness of his act. In this regard, the court has found that in killing the


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deceased as he did, the accused had intention to kill, in the legal sense i.e. he did not plan or premeditate the death of the deceased. The absence of premeditation is, in my finding, a factor tending to reduce the moral blameworthiness of the accused's act.


There is evidence indicating that the accused believed the deceased to be a witch. By the practice of her witchcraft the deceased was responsible for the death of his child. It is, trite law that a belief in witchcraft is an extenuating circumstance or a factor tending to reduce the moral blameworthiness of the accused's act. (Rex vs Montoeli Tlaitlai L.L.R. and Legal Bulletin 1995 - 1996, 428 at p. 435).


In his testimony, the accused told the court that, on the evening of the day proceeding the one on which he fatally assaulted the deceased, he left Rustenburg - RSA and arrived home in the morning of the following day, 12th January 1992. On the way he had been drinking beers. He was, however, still sober and not drunk.


I must say I find it incredible that the accused could have been drinking beers on his way from Rustenburg to his village at Ha Khoori and yet remain sober. I think the accused is one of those people who falsely believe that for a person to be drunk he has to crawl on his knees. If he had been drinking beers on his way from Rustenburg to his home at Ha Khoori the accused was, in my finding, under the influence of intoxication. Now, it is a fact of life that, when under the


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influence of intoxication, people do things they would not do when sober. In my finding, the accused's intoxication is a factor that tends to reduce the moral blameworthiness of his act.


In the result, there are, in this case, extenuating circumstances viz. the absence of premeditation, a belief in witchcraft and intoxication. The proper-verdict is, therefore, that the accused is found guilty of murder with extenuation circumstances .


Both my assessors agree with this finding.


SENTENCE


In mitigation of his punishment, the court was told, by the Crown Counsel, that the accused had no record of previous convictions. He is, therefore, a first offender.


The defence counsel also invited the court to take into consideration a number of factors in mitigation of the accused's punishment. They were eloquently tabulated. It is, therefore, unnecessary for me to go over them again. Suffice it to say they have all been taken into account in assessing the punishment which is imposed on the accused person.


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The court also takes into consideration that the deceased was a sister of the accused's father. The accused has, therefore, killed his own paternal aunt. The thought that he has killed his own relative is going to haunt the accused for the rest of his life time. That, in itself, is a punishment.


Not with standing all the factors taken into account for the benefit of the accused, the court is not prepared to turn a blind eye to the seriousness of the offence against which he has been convicted. He has deprived another human being of her life. The life of a human being is God-given and for that reason sacred. There is nothing wrong with our law that forbids unlawful killing of human beings. Such law derives from the Divine Command "Thou shall not kill".


The courts of this land have, in numerous decisions, warned that they will take a diem view of people who unlawfully kill others. The warning seems to be going unheeded as there are still many murder cases brought before the courts.


There is, therefore, a need to impose deterrent sentences that serve as a lesson to the accused and people of his mind that the courts of law will not tolerate a repetition of the kind of behaviour against which the accused person has been convicted.


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The appropriate punishment, in the circumstances of this case, is that the accused should go to goal and serve a term of nine (9) years imprisonment without an option of a fine. He is accordingly sentenced.


B.K. MOLAI

JUDGE


20th February, 2003


For Crown : Ms. L. Ntelane

For Defence : Adv. E.K. Mahase