Crown v Chobokoane (CRI/T 90 of 99) [2000] LSCA 53 (16 August 2000)

CRI/T/90/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: T HE C R O WN V M O K O R O SI A B I EL C H O B O K O A NE J U D G M E NT D e l i v e r ed by the H o n o u r a b le Mr Justice W CM M a q u tu on the 16th d ay of A u g u s t, 2 0 00 On the 23rd M ay 2 0 00 this case c o m m e n c e d. Mr Griffith w as for the C r o wn a nd Mr L o u b s c h er w as for the a c c u s e d. A c c u s ed is c h a r g ed w i th the c r i me of a t t e m p t ed m u r d e r: In that u p on or a b o ut the 27th J a n u a r y, 1 9 9 7, a nd at or n e ar Ha K e i s o, L i t h a b a n e ng in the district of M a s e r u, the said a c c u s e d, d id unlawfully shoot M a l e k h o ba M a n a po C h o b o k o a ne w i th the intention of killing her. To this c h a r g e, a c c u s ed p l e a d ed not guilty. T he first witness w as M a l e k h o ba C h o b o k o a ne w ho will hereinafter be referred to as M rs C h o b o k o a n e. S he w as the wife of the accused on the 27th January, 1 9 99 w h en the events with w h i ch the accused is c h a r g ed occurred. M rs C h o b o k o a ne told the court that they w e re m a r r i ed on the 6th April 1 9 8 5. T h e re are three children (all of w h om are b o y s) b o rn of the marriage. M rs C h o b o k o a ne told the court that the marriage w as h a p p y, but it h ad p r o b l e ms before the e nd of a year. Before the e nd of 1 9 85 they h ad p r o b l e ms because of the love affair b e t w e en accused and a l a dy by the n a me of T h a t o. M rs C h o b o k o a ne b e c a me a w a re of this love affair t o w a r ds the e nd of 1 9 8 5. T h ey h ad m a ny a r g u m e n ts o n ce she h ad discovered this fact. T h e re w e re daily a r g u m e n ts after this. Thereafter the court discouraged M rs C h o b o k o a ne wife f r om disclosing the details M rs C h o b o k o a ne m i g ht h a ve w i s h e d. T he court w as u n d er the impression that the w a s h i ng of dirty linen in public should be kept to the m i n i m u m. M rs C h o b o k o a ne said she found photographs, but that w as not pursued. Theirs w e re fights that w e re verbal but w h i ch s o m e t i m es led to physical violence. M rs C h o b o k o a ne w as at the insistence of the court confined to the m o st important incidents. On o ne occasion w h en she h ad f o u nd photos of T h a to a m o ng the things of the accused there w as an a r g u m e nt w h i ch led the accused to assault her. B e c a u se of the courts interruption M rs C h o b o k o a ne w as not given an opportunity to say m o re about this matter. S he only limited herself to saying /... there w e re m a ny quarrels w h i ch e n d ed in fights. J Prior to the 27th January 1 9 9 7, the m o st serious quarrel w as o v er the baptism of their child. A b o ut four m o n t hs before, a c c u s ed h ad d e c i d ed without consulting her to go a nd baptise their y o u n g e st child w ho w as a b a b y. A c c u s ed w a n t ed her to prepare the child a nd go along w i th the a r r a n g e m e n ts the a c c u s ed h ad m a d e. T h ey h ad n e v er discussed the matter b e c a u se their relations w e re strained. A c c u s ed decided to take Che b a by by force, M rs C h o b o k o a ne held on to the child a nd they b e g an to pull the b a by of six to s e v en m o n t hs in different directions. Eventually M rs C h o b o k o a ne let the child go a nd t o ok the k e ys of accused's car a nd the jacket of the accused. M rs C h o b o k o a ne says she e n d ed taking a w ay the accused's jacket at the time she w as r u n n i ng for h er life leaving the accused with the b a b y. Mr L o u b s c h er objected to this matter b e i ng p u r s u ed b e c a u se it w as irrelevant. H is objection w as sustained, consequently M rs C h o b o k o a ne never told us w h at she felt w as important. T he court w as of the v i ew that while family matters should be p u r s u e d, this should be d o ne in m o d e r a t i o n. At that stage Mr L o u b s c h er disclosed that the a c c u s ed defence w o u ld be "sane a u t o m a t i s m ". T he court noted that Mr Loubscher h ad not disclosed this defence earlier. T he court called both counsel to its C h a m b e rs a nd told both counsel that it h ad n e v er heard of such a d e f e n ce in L e s o t ho before in a case of this nature. Mr Loubscher assured the court that s u ch a defence n ow exist in L e s o t ho a nd p r o d u c ed a j u d g m e nt of Rex v M o t e a ne C I V / T / 5 / 97 that h ad just b e en delivered by my brother L e h o h la J on the 8th M ay 2 0 0 0, less than t wo w e e ks before. I w as stunned a nd h u m b l ed because this court d o es not a l w a ys h a ve paper, a nd it is short of paper for m o n t h s, its j u d g m e n ts are not often circulated. F or this reason a j u d ge of this court often d o es not k n ow w h at his brother j u d g es are doing, a nd the j u d g m e n ts of this court save his o w n. On the 27th January 1 9 97 in the m o r n i n g, M rs C h o b o k o a ne o p e n ed the brief-case of the accused a nd f o u nd a letter. On its envelope w as written T h a n d i. S he suspected the letter w as written by her h u s b a nd to her husband's lover T h a t o, a nd that w as w h at she w as looking for. S he put the letter in her h a n d b ag a nd left. T he letter w as h a n d ed in a nd m a r k ed exhibit " A ". T he letter w as in Sesotho a nd the court ordered it to be translated. M rs C h o b o k o a ne read the letter at the place of her w o r k. A r o u nd 10 or 11 a .m accused c a me to M rs C h o b o k o a n e 's office. A c c u s ed w a n t ed her to c o me a nd talk to h im in private, but she should bring her h a n d b ag with her. M rs C h o b o k o a ne told h im to c o me at 1 p . m. so that they could talk. I m m e d i a t e ly after the accused h ad left, M rs C h o b o k o a ne asked f r om her boss for leave to go to M a s e r u, S he got permission a nd w e nt to see her l a w y er Mr M a t s au with the letter. A c c u s ed w ho w as also attending school at R o ma h ad s p o k en to her politely. Later that d ay after she h ad c o me b a ck h o m e, accused c a me at 7 p . m. a nd f o u nd her in the kitchen. M rs C h o b o k o a ne w as carrying a b a by a nd w as with a domestic servant. A c c u s ed w a n t ed t h em to go to the b e d r o om to talk. M rs C h o b o k o a ne insisted that they should talk in the kitchen. S he asked the d o m e s t ic servant to go out with the child. A c c u s ed shouted at M rs C h o b o k o a ne (after the servant h ad left). He a s k ed her w hy he calls h im a rag. It c a me to h er m i nd that she h ad called h im a rag before accused's sister, w h e re T h a to w as staying b e c a u se Thato's h u s b a nd h ad expelled her. A c c u s ed w as n ow close to her a nd her reply w as that a c c u s ed should shoot her a nd then shoot himself b e c a u se after that he w o u ld lie in s o r r o w. A c c u s ed at that time clapped her with an o p en h a n d. M rs C h o b o k o a ne picked up a chair a nd t h r ew it at the accused although she d o es not recall if she s u c c e e d e d. As she w as holding the b a ck of accused's shirt, she realized that a c c u s ed automatic pistol h ad fallen on the floor. It h ad b e en at the waist of the accused. A c c u s ed h ad it on the waist before the fight. A c c u s ed w a n t ed to go for the pistol, so M rs C h o b o k o a ne pulled h im a w ay f r om it to the d o or leading to the passage. M rs C h o b o k o a ne says she did so in order to be able to get out of the h o u s e. S he ran through the a passage got out of the h o u se d o wn the steps of the v e r a n d ah a nd as she ran t o w a r ds the gate she fell in the g a r d en area. A c c u s ed c a me d o wn the stairs holding his pistol. As he a p p r o a c h e d, she h e a rd s o me s o u nd of the pistol, but it w as not shooting. M rs C h o b o k o a ne told the court she d o es not k n ow w h at accused h ad d o ne to the pistol as she is not familiar to firearms. A c c u s ed then got to her, on the right side, he knelt d o wn next to her, at this time she w as also kneeling, accused then took her right h a nd a nd raised it u p. S h ot her on the right a rm t o w a r ds the e l b ow a nd the bullet w e nt through. After that the accused raised her left a rm a nd shot it near the armpit. A c c u s ed shot the a rm f r om the right a nd the bullet exited on the right. At that time accused h ad knelt on her left side. A c c u s ed then rose u p, a nd w a l k ed 3 paces, a nd she heard h im talking on the cell-phone say father, father I h a ve m a de s o me mistakes. He w as m o v i ng t o w a r ds the h o u se a nd she w as sitting waiting for h i m. A lady w ho w as a neighbour c a me before the shooting, w as shouting "Ntate C h o b o k o a n e, Ntate C h o b o k o a ne a nd accused said get a w a y, get a w a y. After that accused entered the house. W h en accused c a me b a ck to w h e re M rs C h o b o k o a ne w a s, accused asked her to go to the doctor. M rs C h o b o k o a n e 's reply w a s, h ow could she stand up because accused h ad cut her hands. H er job w as that of secretary, h a n ds w h i ch w o rk for h im a nd the children A c c u s ed then got her into his vehicle a nd took her to hospital. On the w ay accused asked Malikeleli M a p h a l la to help her. M rs C h o b o k o a ne h ad injuries on both a r m s. H er left a rm w as in fact fractured according to X-rays. At Q u e en Elizabeth II hospital she w as told she h ad another w o u ld on the s t o m a c h. It w as at the lower part of the a b d o m e n. T he X - r ay people said there w as a bullet in the s t o m a c h. T he left h a nd is still n u m b. S he no m o re c an r ub hard w h en she w a s h es clothes. T he medical report w as h a n d ed a nd m a r k ed Exhibit " B. T h e re w as no objection. T he firearm w as also h a n d ed in by consent. It is a CZ -83 7.65 calibre automatic pistol serial n u m b er 0 4 0 75 m a de in Czechoslovakia. It is m a r k ed Exhibit 1. U n d er cross-examination M rs C h o b o k o a ne said she lives with B a h l a k o a na the last b o rn of her three children. A c c u s ed visits B a h l a k o a na on a regular basis. T he t wo other children live with her father a nd mother-in-law. B a h l a k o a na loves his father. A c c u s ed is partly a g o od father. T he marriage b e g an to be u n h a p py in 1 9 85 because of accused's lover Thato. A r o u nd 1 9 88 to 89 they m o v ed to their o wn h o u s e. M rs C h o b o k o a ne did not like to live with her in-laws. As time w e nt o n, their marital p r o b l e ms b e c a me serious. S o m e t i m es she did not e v en c o ok for the accused. Their p r o b l e ms w o u ld go on for w e e k s. T h e re w as no intimacy at night as a result of the p r o b l e m s. T h e re w o u ld be no sexual relations. M rs C h o b o k o a ne said s he d o es not r e m e m b er h ow long this w o u ld go o n. S he stopped h a v i ng sexual relations regularly with her h u s b a nd b e t w e en 1 9 94 a nd 1 9 9 7. It w e nt on longer, e v en w h en she got pregnant accused h ad forced her to h a ve sexual relations with h i m. M rs C h o b o k o a ne says she did not sexual relations b e c a u se accused w as not asking for t h e m. A c c u s ed no m o re w a n t ed t h em to h a ve sexual relations. He w as not asking. He never asked except the d ay she fell pregnant. S he w as unwilling that day. After she fell pregnant they h ad sex t h o u gh not on a regular basis. O n ce every three to four m o n t h s. It is correct that during Che m o n th before the shooting they h ad h ad no sexual relations. A c c u s ed w as a student at R o ma University. He got the diploma in L aw before marriage. T he BA degree during marriage. After getting a degree he w e nt back to the H i gh Court, as Assistant Registrar. A c c u s ed obtained his L L . B degree in 1997. M rs C h o b o k o a ne says he does not k n ow if he b e c a me a Magistrate after the L L . B degree, because they w e re no m o re living together. S he took the letter from accused's brief case, and left for R o m a, they no m o re went together. A c c u s ed did not ask for the letter at R o m a. He w as desperate to get the letter though he did not say so. M rs C h o b o k o a ne admitted, she w as in contact with the husband of Thato (her husband's lover). On the 25th D e c e m b er 1996 (on Christmas D a y) Thato's husband c a me to accused's h o me early in the morning. During their talk with her husband he said " C h o b o k o a ne I am giving y ou Thato as your wife. S he will be yours". Their conversation w as brief and longish. T h ey w e re not exchanging w o r d s. A s k ed to explain, M rs C h o b o k o a ne said Ralengana arrived and said " C h o b o k o a ne I give y ou Thato to be your wife. I am tired of seeking and chasing y o u. Y ou leave your wife in the house and start chasing after our wives". That is the w h o le conversation. A s k ed if her husband (the accused) w as threatened. M rs C h o b o k o a ne said she is not sure if the accused w as threatened that d ay or before. W h at is a fact is that t wo p o l i c e m en h ad c o me to her place of w o rk a nd c o m p l a i n ed that accused's father h ad c o m p l a i n ed that she w as arranging with s o m e b o dy to h a ve his s on assaulted. H er a n s w er w as " G e n t l e m e n, old as y ou are, y ou h a ve b e en sent f r om the Office of Mr M a k o a ba to c o me a nd look after the prostitution of the accused, w h at do y ou expect me to d o ?" S he t o ok the p h o t o g r a p hs of T h a to that h ad b e en in the possession of the accused. T h e se w e re n ow in her possession. T he police looked at t h em apologised a nd left. T he police a s k ed to be taken to the residence of the accused. T h ey m et a c c u s ed on the w a y, a nd s he s h o w ed t h em the a c c u s ed a nd left. M rs C h o b o k o a ne did not c o m m e nt on the accused's version c o n c e r n i ng the letter on the d ay of the shooting, because accused never asked for the letter. M rs C h o b o k o a ne denied accused ever asked for the letter in the kitchen. M rs C h o b o k o a ne repeated the third time that accused n e v er asked for the letter. He did invite her to the b e d r o om a nd she refused. A c c u s ed never w e nt to look for her h a n d b ag a nd for the letter. M rs C h o b o k o a ne w as e m p h a t ic that a c c u s ed never left the kitchen to go a nd look for the letter. M rs C h o b o k o a ne denied she ever switched off the m a in switch while accused w as looking for the letter. S he denied she switched off the light four times, she says there w as light in the kitchen all the time. T he only point of a g r e e m e nt w as that accused's g un fell at o ne stage. S he agrees a scuffle b r o ke out for possession of the g un a nd she tore the shirt of the accused a nd ran out of the house. M rs C h o b o k o a ne agreed they did not n o r m a l ly fight that w a y, that w as unique. M rs C h o b o k o a ne denied that the a c c u s ed did not r e m e m b er w h at h a p p e n e d. After the shooting, accused did go to light the h o u se w h i ch h ad not b e en lit. T he w o m an M a l e k h e t h oa m i g ht have c o me before or after the shooting. M rs C h o b o k o a ne is not sure. M rs C h o b o k o a ne denied Thato's h u s b a nd ever threatened a c c u s ed on Christmas D a y. M rs C h o b o k o a ne says Thato's h u s b a nd said he w as not a r m ed a nd e v en raised his h a n d s. S he a d d ed that she is not sure if Thato's h u s b a nd w as drunk. S he denied they talked outside the h o u s e. A c c u s ed could not go outside as he only h ad a trousers on but no shirt. T he next witness w as Malikeleli M a p h a l l a. D u ly s w o r n, she told the court that she w as their neighbour. S he h ad earlier h e a rd a g un report. Later a c c u s ed asked her h u s b a nd to allow her to help h im take his wife to hospital. M rs C h o b o k o a ne on the w ay to hospital told her to tell the w o r ld if she should die that accused shot her w h en she r e p r i m a n d ed h i m. A c c u s ed did not say anything. P W2 Malikeleli M a p h a l la w as followed by P W3 T r o o p er B a d e la w ho is his s w o rn evidence said he took accused statement on the 27th January 1 9 9 7. He then read it to the accused a nd accused signed it. T he statement w as Exhibit " C" w h en it w as h a n d ed in. /... Mr Griffith for the c r o wn a s k ed for a p o s t p o n e m e nt b e c a u se he h ad n ot b e en a w a re of the a c c u s e d 's d e f e n c e. T h e re w as a t i me (during trial) that he w as u n d er the i m p r e s s i on it w o u ld be t e m p o r a ry insanity n ow Mr L o u b s h er h as m a de it clear that the a c c u s e d 's d e f e n ce w o u ld be "sane a u t o m a t i s m ". He w o u ld a sk for a p o s t p o n e m e nt so that a c c u s ed c o u ld be e x a m i n ed by a p s y c h o l o g i st or psychiatrist that h ad b e en obtained by the C r o w n. T he case w as a d j o u r n ed a nd a c c u s ed w as o r d e r ed to s u b m it to m e d i c al e x a m i n a t i o n. W h en the c a se r e s u m e d, Dr N Olivier w as the fourth w i t n e ss for the C r o w n. D u ly s w o r n, he said he w as a p s y c h o l o g i st in private practice He h e ld a M a s t e rs a nd D o c t o r a te in P h i l o s o p hy of O r a n ge F r ee State University. He h ad lectured at the Universities of O r a n ge F r ee State a nd Stellenbosch. He h ad g i v en e v i d e n ce of a psychological nature in d i v o r c es a nd criminal cases. He h ad h ad a part-time practice is p s y c h o l o gy since 1 9 9 0. F r om 1 9 96 he w as in full t i me practice. Dr Olivier h ad e x a m i n ed a nd evaluated the a c c u s ed on the 27th J u ne 2 0 0 0. A c c u s ed h ad b e en referred to h im by Mr Griffith, the C r o wn C o u n s e l. After that he p r e p a r ed a report w h i ch he r e ad to the court a nd h a n d ed it in. T h is report w as m a r k ed E x h i b it " D ". Dr Olivier's c o n c l u s i on w as that a c c u s ed w as not acting automatically w h en he shot his w i f e. If a c c u s ed w as "sanely a u t o m a t ic at the t i me he shot his w i f e, he w o u ld h a ve shot h er indiscriminately. In the case b e f o re the court a c c u s e d 's b e h a v i o ur w as rational a nd controlled. A c c u s ed absolutely k n ew w h at he w as d o i n g. U n d er c r o s s - e x a m i n a t i on Dr Olivier said w h en he c o m p i l ed his report he h ad the benefit a s u m m a ry of evidence already g i v en in court w h en he evaluated a nd interviewed the accused. T he psychological t e rm they u se for "sane a u t o m a t i s m" is personality d e c o m p e n s a t i o n. W h en a p e r s on suffers personality c o m p e n s a t i o n, it is w h e re a p e r s on has h ad build up of e x t r e me stress, w h i ch reaches a culmination point (unless he has adequate e m o t i o n al a nd stress pressure reduction internal m e c h a n i s m s ). W h en there are no internal c o p i ng m e c h a n i s m, the d am of emotional stress fill up to the b r i m. If a p e r s on is in that state is involved in a stressful incident that c an act as at trigger m e c h a n i s m, a nd the e m o t i o n al d am bursts. In that state s u ch a p e r s on d o es not k n ow w h at he is d o i n g, his actions are automatic a nd he will not r e m e m b er w h at h a p p e n ed w h en he w as in that state. A c t i o ns of such a p e r s on are typified by e x t r e me a nd uncontrolled violence. V e ry f ew p e o p le ever suffer f r om personality d e c o m p e n s a t i on or "sane a u t o m a t i s m. A d o m e s t ic scene c an build up to an e x t r e me level of stress in w h i ch personality d e c o m p e n s a t i on c an o c c u r. Dr Olivier f o u nd signs of a tendency t o w a r ds impulsive b e h a v i o ur in the accused. A c c u s ed also suffered f r om severe anxiety of behaviour. A c c u s ed is n o r m al b e c a u se no p e r s on is perfect. N o r m a l i ty is a relative t e rm a nd its s c o pe is broad. E v e ry p e r s on h as feelings of d o i ng a lot of antisocial a nd e v en illegal acts but there are internal a nd external controls s u ch as society's expectations of g o od m a n n e r s, m o r a l s, conventions a nd l a ws in society. A c c u s e d, b e c a u se of his high level of anxiety is a candidate for personality d e c o m p e n s a t i o n. If a c c u s ed w as sleep-walking, he c o u ld h a ve loaded, a pistol a nd if he is /... v e ry proficient in the u se of a firearm, c o ck it a nd fire it. T h e se c an be automatic actions. Dr Olivier says he differs f r om Professor W e y er ( w ho w as his teacher) b e c a u se ( w h en accused shot his wife) he s h o ws himself to h a ve inflicted injuries in a m a n n er a nd at spots of the b o dy that lead h im to the conclusion that the accused h ad executive a nd cognitive control of the shooting. He has the highest e s t e em of Professor W e y e r, but it has to be n o t ed that while m o st of their findings are the s a m e, Professor W e y er did not h a ve the s u m m a ry of the e v i d e n ce given at the trial, while he h ad it. If a c c u s ed h ad not raised o ne a rm of his wife, shot it a nd then raised the next a r m, but instead shot his wife all o v er the b o dy or the chest he m i g ht h a ve a g r e ed w i th Professor W e y e r. Personality d e c o m p e n s a t i on is characterised by a b s e n ce of executive p l a n n ed cognitive acts. Dr Olivier said he did not ask a c c u s ed a b o ut his love for his wife, but it is a strange w ay of loving a p e r s on by shooting b o th a r ms of a loved o n e. If w h at accused did is the result of personality d e c o m p e n s t i o n, then lawyers a nd magistrates in the position of the a c c u s ed c a n n ot c o m m it c r i m e. Dr Olivier c o n c e d ed that he could be w r o ng but he w as sure he w as right. A n s w e r i ng questions f r om the court Dr Olivier said the t e r ms u s ed a nd the theory of p s y c h o l o gy c h a n ge all the time. In the past personality d e c o m p e n s a t i on w as regarded as t e m p o r a ry insanity. T o d ay e v en the t e rm insanity is not u s ed a ny m o re in p s y c h o l o g y. T he p r o b l em lies in the use of w o r d s. L aw has its o wn definitions. M e n t al disease c o m es f r om a m o d el of characterisation of m e n t al states. T he medical m o d el differs f r om the psychological o n e. B o th m o d e ls are /... c h a n g i ng all the time as k n o w l e d ge a nd classification of conditions of the m i nd develop. T he C r o wn closed its case. T he defence called the accused, w ho g a ve s w o rn evidence. A c c u s ed said he is 43 years old. He h ad b e en m a r r i ed to his wife for 12 years. F r om the beginning, it w as n e v er a h a p py m a r r i a g e. T h ey m a r r i ed in 1 9 85 but by 1 9 86 he h ad a love affair with T h a t o, shortly after their m a r r i a g e. Entering into an extra- marital affair m a de things w o r s e. He did not intend to divorce his wife, the love affair c a me as an accident, it w as not intended. A c c u s ed said the idea of terminating his relationship with T h a to c a me to his m i n d. Thato's h u s b a nd w as told of this love affair by accused's wife. On the d ay Thato's h u s b a nd c a me to accused's h o me he w as in the b a t h r o o m. Thato's h u s b a nd invited h im outside, so that they could talk, as he w as not a r m e d. W h en they got outside, Thato's h u s b a nd said m a ny things (as he w as d r u n k) he said a c c u s ed should get a w ay f r om his wife otherwise he w o u ld kill h i m. He took the threat seriously as Thato's h u s b a nd w as a criminal. A c c u s ed already h ad a licensed fire-arm. Up to that time he w as not in the habit of carrying a fire-arm. A c c u s ed told the court that f r om that d ay he a l w a ys carried a fire-arm in case Thato's h u s b a nd attacked h i m. A c c u s ed said his studies w e re difficult a nd stressful b e c a u se of his d o m e s t ic situation. H is m i nd w as not at ease w h en he w as studying. On the 27th J a n u a ry 1 9 97 his wife h ad tried the d o or while he w as in the b a t h r o o m. It w as locked, he k n ew it w as his wife because she is the only o ne w ho u s ed to do so. He then w e nt to R o ma w h e re he w as studying together with the children w ho attended school there. W h en he got to R o m a, he discovered that his letter w as missing f r om his brief-case. W h at w as there w as only the e n v e l o p e. He w as afraid that his wife w o u ld give the letter to his lover's (i.e T h a t o ' s) h u s b a n d. He w as afraid of Thato's h u s b a n d. He w e nt to his wife's office a nd a s k ed for the letter. H is wife said he did not k n ow about it and asked h im to leave as she w as b u s y. T h ey w o u ld m e et during the lunch hour. At this time accused w as so stressed a nd frightened that he attended only a f ew of the lectures. He c a me d o wn to M a s e ru a nd f o u nd his wife at h o me at about 6.30 p . m. He f o u nd her in the kitchen. A c c u s ed asked her to c o me to the b e d r o om but she refused. He w a n t ed to ask her about the letter, a nd s he told the m a id to get out. A c c u s ed asked his wife to bring b a ck the letter but she denied k n o w l e d ge of it. A c c u s ed said his wife should bring the letter that b e l o n gs to a rag. H is wife asked h im w hy he said that, a c c u s ed did not reply b e c a u se he k n e w, she h ad said that to his o wn sister. He asked her to search for the h a n d b ag but she refused. A c c u s ed said he w o u ld search the w h o le h o u s e. T h e re w as no light on w h en he switched the light o n. His wife switched off the light a nd said she w as the only o ne w ho paid for the electricity. A c c u s ed says he switched it o n, she switched it off. A c c u s ed says /... he slapped her. S he lifted the chair trying to hit h im with it. He b l o c k ed the chair. As he did this, his cell-phone a nd pistol fell d o w n. H is wife w e nt for the g u n, accused stopped her as he w as afraid she m i g ht shoot h im with it. A c c u s ed says he only r e m e m b er that they fought o v er the g u n. F r om then o n, he d o es not r e m e m b er anything. T h ey h ad both left the chair the m o m e nt the g un fell. A c c u s ed says he only r e m e m b e rs s o m e o ne calling his n a me a nd that he said go a w a y. S he s aw his wife kneeling on the g r o u nd next to the car. It w as as if he w as w a k i ng up f r om a d e ep sleep. He w as standing next to his wife near the car. S he w as bleeding all over the b o d y. He tried to think of w h at h ad h a p p e n e d, he f o u nd he did not k n ow w h at h ad h a p p e n e d. He suspected that b e c a u se his wife w as bleeding a nd he h ad a g un in his h a n d, he m u st h a ve d o ne s o m e t h i ng terrible. A c c u s ed then 'phoned his father, but f o u nd his m o t h e r. He told her that he thinks he m u st h a ve d o ne something terrible. He then carried his wife to the car. He w e nt to look for the children next door. W h en he could not find t h e m, he d r o ve off. On the w ay he collected a n e i g h b o ur to support his wife. After taking his wife to hospital, he w e nt to the police w h e re he h a n d ed in his g un a nd said he h ad shot his wife. He continued to go for lecturers. T wo w e e ks later he w as told to appear before a magistrate for a r e m a n d. A c c u s ed said he w as frighted that d ay a nd sweating. He w as a n g ry a nd stressed. He got e v en angrier w h en his wife kept on switching off the light, to stop h im looking for the letter. W h en he s aw his wife bleeding he w as remorseful, frightened a nd afraid she m i g ht die. He n e v er t h o u g ht of shooting his wife. Listening to his wife giving e v i d e n c e, he says this w as the m o st serious incident in their m a r r i a g e. T h ey are on g o od t e r ms n ow e v en t h o u gh they are n ow divorced. In cross-examination accused said he never h ad p r o b l em with his studies. He never failed a ny subjects b e t w e en 1 9 95 a nd 1 9 9 7. T h is shooting incident h ad no effect on the e x a m i n a t i o ns he w r o te at the e nd of April 1 9 9 7, a b o ut three m o n t hs later. He w as Assistant Registrar f r om 1 9 89 to 1 9 9 7. He started sitting as a magistrate in S e p t e m b er 1 9 9 7. H is career h ad b e en in l aw a nd he h as studied l aw extensively. He suffered stress b e c a u se of family relations a nd studies. A c c u s ed says his relationship with T h a to b e g an in 1 9 86 after he h ad m a r r i ed his wife in 1 9 8 5. A c c u s ed says he felt betrayed but d o es not elaborate by saying h o w. A c c u s ed says he tried to sort his marital p r o b l e ms without success. He agrees with the suggestion that he thought h a v i ng an affair w as the a n s w er to his p r o b l e m s. T h is led to stress b e c a u se he c o u ld not c o pe b e c a u se the m a r r i a ge w as still there. T he affair with T h a to still continues e v en after 14 years. E v en if he h ad stopped the affair, his marital p r o b l e ms w o u ld continue. H is solution to his marital p r o b l e ms w as m o re i n v o l v e m e nt in the love affair. H is wife f o u nd out about the love affair b e t w e en 1 9 94 a nd 1 9 95 before that she w as only suspicious. Thato's h u s b a nd h ad b e en jailed b e t w e en 1 9 90 a nd 1 9 9 1. He learned f r om T h a to that his wife h ad told Thato's h u s b a nd of their love /... affair. T he love affair still continued, fear of T h a t o 's h u s b a nd w as not a m a j or factor. A c c u s ed corrected this statement a nd said the fear of Thato's h u s b a nd w as a m a j or factor. He could not stop the affair b e c a u se his w i fe w o u ld still ill-treat h i m. He w as threatened in 1 9 97 t wo w e e ks later the shooting incident o c c u r r e d. He never attempted to terminate the love affair with T h a to b e c a u se he n e v er treated it as important, his m a r r i a ge w as m o re important. T he fear of the h u s b a nd (although it c o m p o u n d ed his p r o b l e m s) did not stop the affair. A c c u s ed disagreed with counsel that h ad he stopped the affair, that w o u ld r e m o ve the stress b e c a u se s o m e h ow it lessened the stress in the f a m i l y— in h im to be direct. D i v o r ce w o u ld not help. In his v i e w, the incident of physical violence in the kitchen w as the m o st serious they h ad ever h a d. In 1 9 94 w h en his wife w as stopping her f r om looking for his passport he slapped her, a nd she slapped h im b a c k. In 1 9 96 they h ad fought over the b a p t i sm of their child. He h ad w a r n ed her of his intention a nd the date but she said nothing as they w e re not on speaking t e r m s. W h en he w a n t ed to w a sh the b a by himself, she stopped h im physically. S he then t o ok the k e ys of the vehicle a nd his clothes. Eventually he t o ok the b a by to his parents' h o u se to w a sh h im there. T he incident o v er the passport according to a c c u s ed led to m u ch m o r e, he w as not given an opportunity to explain. It w as not o n ly that he assaulted her a nd she s m a s h ed the w i n d s c r e en of the car. In fact they h ad spent o v er sixteen h o u rs with the wife carrying a stone threatening to s m a sh the car. S he w as still being served with refreshments while he could not m o ve for fear that she w o u ld get a chance to s m a sh the car. In the m o r n i ng of the following day, the wife m a de as if she w as going a w a y. That w as w h en she s m a s h ed the windscreen of the car after evading h i m. On the issue of being stabbed with a knife accused said the wife did not stab her. S he took out a knife f r om the d r a w er at the time they w e re squabbling over the telephone. D u r i ng the struggle over the telephone, he had a slight cut in the hand. He cannot e v en r e m e m b er w h e re he w as cut. S he did not bother w h en he w as bleeding. He completely forgot about the knife incident. A b o ut the intention to divorce his wife that the letter discloses, he w as not serious. He w as lying to Thato, it w as a love letter. A c c u s ed said he h ad forgotten about telling the policeman the full details. In fact his wife h ad refused with the letter and added that accused h ad rather shoot her. He does not r e m e m b er following her and shooting her. He only told the policeman w h at he thought happened, not w h at actually happened. At the time he felt he w o u ld rather take the blame. He did so expecting the statement to be used in evidence against h i m. He did not shoot with the pistol often, he h ad shot 3 to 4 times before. He h ad received no training in the use of fire a r m s. He disagreed with counsel w h en counsel says he shot his wife deliberately. /... T he second witness w as Professor A l m e ro W e y e r s. In his s w o rn testimony he told the court that he w as Professor of psychology at the University of the O r a n ge Free State. He obtained both the MA and Doctrate in Psychology at the University of O r a n ge Free State. He started lecturing in psychology in 1 9 6 5. He has written extensively on the subject, written a b o ok on D e v e l o p m e n t al Psychology and given evidence in m a ny criminal trials after evaluating people. He appears in courts on the average 15 times a year. Professor W e y e rs h ad evaluated the accused on the 11th M ay 2 0 00 after Mr Loubscher (Counsel for the accused) had referred the accused to h i m, and he prepared a report. After reading the report, it w as h a n d ed in a nd m a r k ed Exhibit " E ". He said their job is to help the court not to give evidence favouring any side. People differ and they handle stress differently. P r o b l e ms in love affairs, fear of a husband and an u n h a p py marriage c an lead to personality decompensation in s o me people, not all. Anxiety m a k es a person a candidate of personality decompensation. His scale is divided into ten degrees. At the 10th degree a person is fully decompensated. At the first degree decompensation is beginning. At the tenth degree of the scale he uses a person will not k n ow w h at he is doing. At the first degree a person might k n ow w h at he is doing, but he will not be able to stop himself. There is no w ay of k n o w i n g, we c an only take a guess. He compiled the report without k n o w i ng w h e re accused's wife w as shot. T he m o re decompensated a person is, the greater the violence. T h e re are no hard a nd fast rules. W h en decompensation takes place, a relatively peaceful person like the accused starts acting violently. In evaluating a person, y ou look at the w h o le picture. D e c o m p e n s a t i on does not deprive a person of the ability to shoot. T he shooting of the hands m ay be symbolic, because it is the hands that h a nd over the letter. T h e re is little control, behaviour is out of character w h en a person shoots the person he loves most. A c c u s ed w as angry a nd emotional. T h e re w as a build up of anger, fear a nd frustration, it c a me to a point w h e re accused could not handle it. In his field, they use the use no scientific m e a s u r i ng instruments, they use w o r d s, concepts, and ideas to delve into the m i nd - with these they build patterns. M e m o ry is a very difficult thing because a person can lie. T h e re w e re no indications of lies in his interview. He w o u ld say accused w as in s o me degree of D e c o m p e n s a t i o n. In cross-examination, the Professor said non-aggressive people c o m m it the m o st serious m u r d e r s. F or e x a m p le shoot a victim for up to 28 times. Uncontrolled violence such as strangling and cutting the victim all over the b o d y. T h e re are t wo approaches, n a m e ly taking all the facts or looking at the nature of the violence and the personality of the accused. He belongs to the second school that looks at the nature of the violence and personality of the accused. In personality decompensation the action is automatic a nd there is no plan. W h e re there is no personality decompensation there is cognitive executive action, less emotion, planned action and the perpetrator r e m e m b e rs very well w h at he has done. L o ss of temper is part of personality decompensation. In psychology like all sciences w h i ch deal with h u m an b e h a v i o ur t wo plus t wo is not a l w a ys four. L y i ng is an attempt to create an a m n e s i a. In this case the shooting w as irrational. A n s w e r i ng questions f r om the court, the professor said l aw u s ed to see personality d e c o m p e n s a t i on as insanity. To fall into the area of m a d n e s s, it should take at least six m o n t h s. Fifty or sixty years a g o, personality d e c o m p e n s a t i on w o u ld h a ve b e en classified as insanity. T he professor w e nt so far as to say personality d e c o m p e n s a t i on m i g ht h a ve b e en classified as t e m p o r a ry insanity a little o v er ten years a g o. T he defence then closed its case. B e f o re addresses b e g a n, it w as clear that the court c o u ld not e v en d e t e r m i ne the question of guilt before it h ad d e t e r m i n ed w h e t h er the a c c u s ed h ad the capacity to c o m m it c r i m e. T he t e rm "sane a u t o m a t i s m" is n ew but a u t o m a t i sm is not. In the past, it w as kept quite distinct f r om insanity. T h e se d a ys we hear of "insane a u t o m a t i s m" a nd sane a u t o m a t i s m. In R v Ahmed 1 9 5 9 ( 3) SA 7 76 at p a g es 7 80 to 7 89 we find that a u t o m a t i sm h as its theoretical base in English l a w. In practice such a d e f e n ce (as will be s h o wn later) did not often s u c c e ed in practice. It will be s h o wn that in the application of English a nd Scots l a w s, there is a clear reluctance to acquit sane offenders w ho plead a u t o m a t i sm w h en they h a ve c o m m i t t ed criminal acts. /... A u t o m a t i sm has received a r o u gh reception in Scotland. L o rd Justice G e n e r al C l y de (sitting with L o rd Justice C l e rk G r a nt a nd L o rd C a r m o n t) in the case of HMA v C u n n i n g h am 1 9 63 S LT 3 45 w as faced with a special d e f e n ce (after a plea) of not guilty that the accused " w as not responsible on a c c o u nt of the incidence of t e m p o r a ry dissociation d ue to epileptic f u g ue or other pathological condition". L o rd Justice G e n e r al C l y de at p a ge 3 46 to 3 47 said: " As I see it the so-called "special d e f e n c e" in the present case constitutes an attempt to extend the categories of the special d e f e n c es in order to include a n ew o n e, n a m e l y, s o m e t h i ng short of insanity w h i ch w o u ld lead to acquittal. F or this I c an see no w a r r a nt in principle. On the contrary as has b en pointed o ut m o re than o n ce in previous cases s u ch a novel type of d e f e n ce w o u ld be a startling innovation w h i ch w o u ld lead to serious c o n s e q u e n c es so far as the safety of the public is c o n c e r n e d. After all, safety is o ne of the considerations to w h i ch we h a ve to h a ve regard w h en we are a s k ed to sanction a c o m p l e te acquittal if a d e f e n ce of this nature is sustained by the jury on facts.... It follows that if the present so-called special defence is to be m a de into a true defence, as u n d e r s t o od in the l aw of Scotland, it w o u ld require to include an a v e r m e nt of insanity." Scottish case l aw h ad up to 1 9 78 followed the negative attitude of HM. A v Cunningham towards t o w a r ds a u t o m a t i s m. G o r d on in his Criminal Law 2nd Edition (3-27) at p a ge 80 to 81 f o u nd this rigid attitude t o w a r ds a u t o m a t i sm still u n c h a n g ed by 1 9 7 8. English l aw like Scottish l aw w as not willing to let p e o p le w ho h ad c o m m i t t ed offences go free b e c a u se of a u t o m a t i s m. T h ey w o u ld rather k e ep t h em in lunatic a s y l u ms a nd prisons for as long as it shall please H er M a j e s ty the Q u e en to k e ep t h em there. T he case of R v Burgess [ 1 9 9 1] 2 All ER 7 69 classified sleep w a l k i ng w h i ch h ad resulted in a c r i me of violence as insanity within the M ' N a g h t en rules. Diabetes a nd its h y p e r g l y c a e m ia w h i ch h ad b e en m a de w o r se anxiety a nd depression w as classified u n d er diseases of the m i n d — S ee R v Hennessy [1989] 2 All ER 9. T h at m e a nt it w as legal insanity. L a ne CJ sitting with R o se a nd Pill JJ w e nt further a nd dealt with exacerbating factors at p a ge 14 as follows: "In o ur j u d g m e n t, stress, anxiety a nd depression c an no d o u bt be the result of external factors, but they are not, it s e e ms to u s, in themselves or separately or together external facts of the kind capable in l aw of causing or contributing to a state of a u t o m a t i s m. T h ey constitute a state of m i nd w h i ch is p r o ne to recur. T h ey lack the feature of novelty or accident, w h i ch is the basis of the distinction d r a wn by L o rd D i p l o ck in R v Sullivan. It is contrary to the observation of D e v l in J to w h i ch we just referred in Hill v In English l aw "disease of m i nd e m b r a c es both organic a nd functional disorders of the m i n d, but excludes external causes, s u ch as d r u g s, hypnosis a nd concussion".—Blackstone's Criminal Practice 1 9 9 8 — A 3 .7 at p a ge 7. A l t h o u gh there is on the a c c u s ed the o n us of p r o of to p r o ve insanity, actually in practical t e r ms the special verdict w as a calamity. "Until recently, e v en this possibility w as a largely theoretical o ne since the c o n s e q u e n c es of an insanity verdict w e re so unattractive that s e l d om w o u ld an accused seek o n e ." — B l a c k s t o n e 's Criminal Practice 1998.— A3.12 at page 42. However Lawton LJ in R v Quick [1973] 3 All ER 355 GH said English law is in a quagmire seldom encountered nowadays. Returning to automatism in the law of South Africa before the case of S v Chretien it seems automatism was already there. In R v Ahmed at page 780BC Marais J said: "It is, as has been laid down in the case of R v Mkize 1959(2) SA 260(N), a good defence to any criminal charge that he accused, when committing the act complained of, was in an unconscious state, having neither judgment, will,purpose, nor reasoning. If the story of the accused in the present case is true, namely, that he has no recollection of the occurrence and that during his conscious existence he had no desire or motive to kill or assault the complainant, then he was in such an unconscious state at the critical moment, and no criminal liability attaches to him. That is our law." It will be observed that at that time, the Lesotho Criminal Law (Homicide Amendment) proclamation 43 of 1959 had not been passed. South Africa at the time seems to have applied English case law in a way the English would not have. South African judges did not take into account the deterrence aspect of English mental law. They emphasised logic and clarity to the detriment of the deterrence dimension. R v Dhlamini 1955(1) SA 120, the accused who had stabbed the deceased in a nightmare could not be guilty of either murder or culpable homicide. There are no grounds in law for saying automatism of this kind (which is not of an insane person) is foreign to the theory of our law. It seems to have a long history in English law, see Gordon Criminal Law 2nd Edition at page 74 where he refers to Sir JF Stephen. History of Criminal Law (London 1883) Vol.11 page 100 dealing with somnambulism. Today this statement appears to have been the author's opinion together with other statements that were made in judgments orbiter not to reflect the law accurately. In Bralty v A. G. Northern Ireland [1963] AC 386 at page 410 Lord Denning observed that "it is apparent that the category of involuntary acts is very limited. So limited indeed that until recently there was hardly any reference in the English books to the so-called defence of automatism." In R v Sullivan [1983] 2 All ER 673 at page 677 HI. Lord Diplock and four other L aw Lords in the House of Lords were very unhappy with the meaning of insanity and he noted: "The nomenclature adopted by the medical profession may change from time to time... I agree with Devlin J in R v Kemp [1956] 3 All ER 249 at 253 that "mind" in the M'Naghten Rules is used in the ordinary sense of mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either to have consequences referred to in the latter part of the rules, it matters not whether the arteriology of the impairment is organic, as in epilepsy, or is functional or whether the impairment itself is permanent, transient and intermittent, provided it subsisted at the time of commission of the act. The purpose of the legislation relating to the defence of insanity ever since its origin in 1880, has been to protect society against the recurrence of the dangerous conduct.". The unsatisfactoriness of the classification was regrettable but it was felt a change /.... would have to be made by Parliament. It should now be clear that personality decompensation falls under insanity according to the current legal set-up in Lesotho. Because Professor Weyers and Dr Olivier say half a century ago it was regarded as insanity. If it is of a very short duration, it is temporary insanity. Both Professor Weyers and Dr Olivier are in agreement on this point. In fact Dr Olivier says even the term insanity is no more used in psychological circles W h en we deal with "sane automatism" we have to note that (according to Snyman Criminal Law 3rd Edition page 222) it is dealt with in two ways, namely the Separation doctrine approach which descended from English and which dominated South African legal thinking up to 1970 and the General Principles Approach which descended from S v Chretien 1981(1) SA 1097. Lesotho with its Criminal Liability of Intoxicated Persons Proclamation 60 of 1938 and the Criminal Law (Homicide Amendment) Proclamation 43 of 1959 follows English law thinking. The point of departure in which South African law took a decisive turn on capacity to commit crime was the case of S v Chretien 1981(1) SA 1097. In Rex v Tsitso Matsaba CRI/T/18/89 (unreported) which was decided on the 1st June 1990, Lehohla J disapproved of the S v Chretien which had in fact had been cited in argument. He quoted AG for Northern Ireland v Gallacher [1961] 3 All ER 299 at pages 304 and 314 where Lord Goddard and Lord Denning stated the law of England. These cases stated clearly that drunkenness does not affect a person's legal capacity to commit crime. In disapproving of the use of S v Chretien in Lesotho at page 27 of Rex v Tsitso Matsaba Lehohla J said: "Our law governing criminal liability of intoxicated persons is to be found in Proclamation 60 of 1938 which is in keeping with the English authorities...." This judgment of Lehohla J was confirmed by the Court of Appeal of Lesotho in Tsitso Matsava v Rex 1991-96 L LR 615. The case of Rex v Mosuoe Moteane CRI/T/5/97 (unreported) differs from this one in the following respects:- First according to both Professor Weyers and)Dr Olivier "sane automatism" of the kind accused had (which they call personality decompensation) would have been - classified as temporary insanity fifty or sixty years ago. Secondly this fact was not brought to the attention of the court that day . In Lesotho the law has not changed, therefore personality decompensation should still be temporary insanity. The concept of absence of criminal liability for intoxicated person as found in S v Chretien has widened the gap between Lesotho and South Africa. S v Nursingh 1995(2) S A CR 331 being based on S v Chretian cannot be an authority in Lesotho because of Lehohla J's judgment in Rex v Tsitso Matsaba. It will be observed that Scott JA of the South African Supreme Court of Appeal said in S v Henry 1999(1) S A CR 13 at page 20E the same personality decompensation results in "Criminal c o n d u ct arising f r om a r g u m e nt or s o me or other emotional conflict is m o re often than not p r e c e d ed by s o me sort of provocation. L o ss of t e m p er in the ordinary sense is a c o m m on occurrence. It m ay in appropriate circumstances mitigate, but it d o es not exenorate. On the other h a n d, non-pathological loss of cognitive control or consciousness arising f r om s o me emotional stimulus a nd resulting in involuntary conduct i.e. psychogenic automatic a u t o m a t i s m, is m o st u n c o m m o n ." Scott JA w as in S v Henry w as rescuing S o u th African l aw f r om the legal q u a g m i re that w as developing. A c c u s ed cannot claim personality d e c o m p e n s a t i on m e r e ly because he lost his t e m p er a nd did a stupid thing like a ny other n o r m al m a n. F or purposes of this case, I will a s s u me "sane a u t o m a t i s m" of kind S v C h r e t i an m i g ht be the l aw of Lesotho, although it is not. T he case of R v Ahmed 1959(3) SA 7 76 is similar to this o ne in s o me respects b e c a u se it involved violence on a w o m a n. A h m ed h ad stabbed a w o m an (almost fatally). T h e r e f o re he w as c h a r g ed with attempted m u r d e r. It differs f r om this o ne b e c a u se A h m ed h ad an "Intelligence quotient s o m e w h at b e l ow n o r m a l" according to m e d i c al evidence. T h at w as also the impression he g a ve to the court. S ee p a ge 7 79 of R v Ahmed. W h at is missing is an event that triggered the black-out in Ahmed's case. He h ad earlier only said he w as unwell, while accused did not say so. T he case before me is in s o me w a ys similar to S v A r n o ld 1 9 8 5 ( 1) SA 2 5 6. In Arnold's case, accused w as besotted with his wife, in the case before me accused is not, he is in fact having love affairs with other w o m e n. In Arnold's /... case, there w as accused's mother-in-law w ho w as ruining the m a r r i a ge of a c c u s ed a nd his wife a nd h ad disturbed the h a r m o ny b e t w e en accused's wife a nd accused's s on by his f o r m er m a r r i a g e. T he similarity is that b o th A r n o ld a nd this a c c u s ed w e re in the habit of g o i ng about a r m ed with a pistol. B o th c l a i m ed to h a ve shot their w i v es as a result of a quarrel w h i ch is alleged to h a ve triggered a black-out. T h e re is a b a c k g r o u nd of failure a nd h a r a s s m e nt in Arnold's case. In S Nursingh 1995(2) SA CR 3 31 there a history of child a b u s e, just as there is in S v M o s es 1 9 96 S A CR 7 0 1. All these cases are a c c o m p a n i ed by e x t r e me violence that h as no plan or inferrable logic. In accused's case he claims to h a ve b e en a victim of his wife's unpleasantness, yet he b e g an a love affair at the beginning of the marriage of w h i ch (according to accused) the wife b e c a me suspicious a l m o st w h en it started. Relations deteriorated b e c a u se of it. I n d e ed on the d ay a c c u s ed shot her, the letter he h ad written to his lover w as the i m m e d i a te c a u se of the confrontation. A l t h o u gh the o n us of p r o of h ad a l w a ys b e en on the C r o w n, S v Trickett 1 9 7 3 ( 3) SA 5 26 h ad e m p h a s i s ed "universal sanity in the sense of the a c c u s ed being doli capax being p r e s u m e d. W h o e v er w i s h es to rely on a deviation f r om this general n o r m, has to establish it on the balance of probabilities: it is o n ly then that the prosecution h as to disprove the deviation f r om the n o rm — see M a r a is J at p a ge 5 3 0A of S v Trickett. By the time cases s u ch as S v Kok 1 9 9 8 ( 1) SA 5 32 w e re heard it w as n ow being e m p h a s i s ed that although the o n us of p r o of is on the State, the prosecution is assisted by the natural inference that (except in /... exceptional circumstances) sane persons e n g a g i ng in c o n d u ct w h i ch gives rise to criminal liability do so consciously a nd voluntarily. It is therefore necessary for the d e f e n ce to lay a p r o p er basis to upset this inference. B e t w e en 1 9 85 a nd 1 9 96 there h ad b e en a t e n d e n cy to w r o n g ly o v e r - e m p h a s i se the o n us on the State without e m p h a s i s i ng the position of strength f r om w h i ch the State begins. In this case before me t wo psychologists g a ve e v i d e n c e. Professor W e y e rs w ho classified a c c u s ed as a case of personality d e c o m p e n s a t i on or "sane a u t o m a t i s m" never h ad the benefit of the s u m m a ry of the e v i d e n ce f r om c r o wn witnesses. D r. Olivier did a nd he incorporated the e v i d e n ce of accused's w i fe a nd other C r o wn witnesses in his report. Professor W e y e rs only o b s e r v ed the a c c u s ed giving evidence in court. B o th psychologists a g r ee that a c c u s ed violence w as not absolutely e x t r e me a nd senseless like m o st cases of personality d e c o m p e n s a t i on w h e re the emotional d am bursts. Professor W e y e rs says cases are n e v er identical, a c c u s ed w as essentially peaceful a nd non-violent, but he b e c a me violent that d a y. B o th psychologists readily c o n c e d ed that a l t h o u gh they believe they are right, they could not e x c l u de the possibility of b e i ng in error. After all, a c c u s ed m i g ht m i s l e ad t h em although their tests reduce the possibility b e c a u se they cross c h e ck within their s y s t e m. T h e re are no scientific m a c h i n e s, everything is interviews w h i ch p r o d u ce data w h i ch f o r ms patterns f r om w h i ch conclusions c an be reached. Dr Olivier says accused n e v er h ad a black out, his actions w e re deliberate a nd carefully p l a n n ed that he should n ot kill his wife but o n ly w o u nd /... her. A c c u s ed lifted the first a rm a nd shot it, then lifted the next a rm a nd also shot it. He did not shoot his wife all o v er as cases of personality d e c o m p e n s a t i on often d o. Professor W e y e rs c o n f i r m ed that this is often the case as he r e m e m b e rs in o ne case w h e re the accused h ad shot his victim t w e n ty six times. In psychological cases t wo a nd t wo is not a l w a ys four, b e c a u se m a ny factors c o me into play a nd p e o p le are not often the s a m e. An examination of the information Professor W e y e rs extracted f r om the a c c u s ed s h o ws it w as far less. E v en Dr Olivier did not get as m u ch information as he m i g ht h a ve got b e c a u se the court stopped the wife f r om w a s h i ng as m u ch dirty linen in public as she m i g ht h a ve w i s h e d. T he reason w as that Mr Loubscher,did not reveal w h at the nature of his defence w as initially. F or an e x a m p l e, we w e re left without k n o w i ng w hy accused's wife h ad to r un for h er life while they w e re fighting over the b a by on the d ay of that b a b y 's baptism. T he R u n c i m an R o y al Commission on Criminal Justice R e p o rt C M 2 2 63 H M SO ( 1 9 9 3) p a r a g r a ph 70 states: "Expert witnesses m u st expect to h a ve their evidence tested in e x a m i n a t i on a nd cross-examination in the s a me w ay as other witnesses. Serious miscarriages of justice m ay o c c ur if juries are too ready to believe expert evidence or b e c a u se it is insufficiently tested in court. We believe that the overall a im in this area should be the objective presentation of expert evidence in a w ay w h i ch jurors w ho are not themselves expert c an follow. I c an only congratulate both Professor W e y e rs a nd Dr Olivier for giving a c o m p l e t e, w h o l e s o me a nd fair picture in their e v i d e n c e. T h ey m a de a difficult topic c o m p e h e n s i b le to u s. I s aw a nd h e a rd b o th M rs C h o b o k o a ne a nd the a c c u s e d. I w as i m p r e s s ed w i th M rs C h o b o k o a ne a nd that she w as telling the truth. S he told the c o u rt that h er m a r r i a ge w as initially h a p p y, b ut the a c c u s ed p o i s o n ed it w i th h er l o ve affair w i th T h a t o. S he did n ot h i de that relations deteriorated so b a d ly that they did n ot s p e ak to e a ch other for w e e ks a nd did n ot h a ve sexual relations for up to four m o n t hs s o m e t i m e s. A c c u s ed c l a i m ed his w i fe w as at fault a nd that s he b e t r a y ed h im w i t h o ut s a y i ng h o w. He said his l o ve affair h a p p ed by accident. W h i ch c o u ld be plausible, but s o m e t i m es said it w as b e c a u se of his wife. N o w h e re d o es he s e em to h a ve f o u nd it necessary to terminate the l o ve affair to p r e s e r ve his m a r r i a g e. Y et he e x p e c t ed the w i fe to be h a p py w i th b e i ng c o m p r o m i s ed that w a y. A c c u s ed lied that he w as threatened for the first t i me on C h r i s t m as D ay of 1 9 96 w h en he m u st h a ve b e en threatened m u ch earlier. T h a t o 's h u s b a n d 's w o r ds s h ow it w as earlier. On C h r i s t m as D ay the h u s b a nd of T h a to w e nt to a c c u s e d 's h o me to tell h im that he w as u n a r m ed a nd that he h ad g i v en h im T h a to to be the accused's w i f e. He w o u ld not m o re b o t h er the a c c u s ed as he h ad b e en d o i ng earlier. I believe M rs C h o b o k o a ne on this a nd n ot the a c c u s e d. On the 27th J a n u a ry 1 9 97 I also believe M rs C h o b o k o a ne that a c c u s ed n e v er a s k ed for the letter either at R o ma or at h o m e. At R o ma he w as told they w o u ld m e et at L u n ch but w h en a c c u s ed got h o me in the e v e n i ng they quarrelled e v en before a c c u s ed c o u ld get very far. T he r e a s on being that M rs C h o b o k o a ne h ad g o ne a nd called a c c u s ed a rag to accused's sister. M rs C h o b o k o a ne w as in a b ad m o o d, e v en before a c c u s ed could get v e ry far w i th their conversation, she said accused should shoot her b e c a u se she h ad h e a rd he w a n t ed to shoot her. T he probabilities of expecting his wife to give her the letter are there but the impression o ne gets is that the a c c u s ed c o u ld not expect the w i fe of the type M rs C h o b o k o a ne w as to give h im the letter. It is also unlikely t h o u gh possible that accused could expect to find the letter in the h o u se if he believed it w as in the h o u s e. I note that a c c u s ed a v o i d ed to refer to the fact that his wife h ad said he should shoot her w h en he narrated the s e q u e n ce of events. It is b e c a u se this w as incompatible w i th his story that they fought o v er the switching on a nd off of the lights in the kitchen. I accept that the kitchen w as lit at the time of the fight. W h at w as not lit w as the rest of the h o u s e. T h is w as lit by the a c c u s ed after the shooting. I do not believe the accused w h en he says he h ad a black-out. He did not, I accept that he lost his t e m p er a nd did not intend to kill his wife. He deliberately shot his wife, o ne a rm after another with the intention only of w o u n d i ng her. W h en he finished he t o ok her to hospital a nd w e nt to m a ke the statement to the police. I note that he did not say he h ad a black-out. I also note a nd believe it is possible for a p e r s on to neglect to say w h at he m i g ht h a ve said out of /... forgetfulness or for o ne reason or the other. In Molefe v Mahaeng 1 9 9 9 ( 1) SA 5 62 at p a ge 5 69 M e l u n s ky JA noted that t h o u gh r e s p o n d e nt did not m e n t i on the black-out to the nurse a nd the doctor w ho attended to h im there w as evidence aliunde that it did occur. In this case there is nothing of a factual nature to lead me to the conclusion that accused's version of a black-out is probable. T h is is a case of domestic violence. It is in s o me respects similar to the case of S v Henry 1 9 9 9 ( 1) S A CR 13 w h i ch w as d e c i d ed by the S o u th A f r i c an S u p r e me C o u rt of A p p e a l. In that case the a c c u s ed h ad before m a k i ng a statement before the police seen his attorney. In this case a c c u s ed o ne year four m o n t hs later w as seen by a psychologist sent by his counsel. In S v Henry the a c c u s ed h ad c o m m i t t ed an e v en m o re violent senseless killing than this o ne b e c a u se of shooting both his f o r m er wife a nd her m o t h er three times each. After scrutinising the evidence, the trial court did not find a ny "sane a u t o m a t i s m. As I h a ve already said this w o u n d i ng w as d o ne with care a nd caution so that a death d o es not occur. He exaggerated a small cut with a knife held by his wife as a stabbing with a knife to psychologists. I w a t c h ed the accused's d e m e a n o u r, a nd I w as not i m p r e s s ed with it, he tailored his evidence to suit his circumstances a nd w as false. He claims that he h ad just b e en threatened by Thato's h u s b a nd w h en he h ad b e en threatened s o me time earlier a nd the police h ad e v en investigated the matter. On the C h r i s t m as D ay of 1 9 96 w h en Thato's h u s b a nd h ad c o me to say he h as given u p, he c an h a ve T h a t o, he claims he w as threatened, s o m e t h i ng his wife ( w h om I believe) says is /... untrue. W h en he really m e a nt to divorce his wife he claims he w as lying to T h a to in the letter! He claims to h a ve loved his wife a nd that he still loves her. R u n n i ng a r o u nd openly with another w o m an a nd not finding it not necessary to discard her a nd m a ke up a nd m e nd relations with a loved o ne is a strange w ay of loving a wife. Y et the m o st i m p r o b a b le affairs of the heart c an be true, especially w h e re a p e r s on is the type w h i ch o n ly considers itself alone. A l aw abiding m an (in cases of d o m e s t ic violence) c an take liberties with his wife, in the belief that she will not press charges for the s a ke of the children w h o se b r e a d w i n n er he is. An a n g ry p e r s on m i g ht be u n d er the belief that all will be forgiven. Unfortunately the wife w ho is not a c o m p e l l a b le witness h as c h o s en to press" charges. A c c u s ed is lucky that his defence of "sane a u t o m a t i s m" has not succeeded. H ad it s u c c e e d ed it m i g ht h a ve b e en o p en to me to consider w h e t h er he w as not a case of t e m p o r a ry insanity. I say this b e c a u se both psychologists agree that personality d e c o m p e n s a t i on o v er fifty years a go w as a category of insanity. T he terminology h as c h a n g ed but the L a ws of L e s o t ho h a ve not. I h a ve b e en assured by both psychologists that cases of personality d e c o m p e n s a t i on are rare. T he court in S v Henry w as also assured that the personality d e c o m p e n s a t i on is a very rare occurrence. H a v i ng rejected the e v i d e n ce of a black-out, since the actus reus is undisputed a nd there is no other inference save that the offence of assault w i th intent to do grievous bodily h a rm has b e en p r o v e d. Mr Griffith did not press for conviction of attempted m u r d e r. S t a nd up accused. I find y ou guilty of assault with intent to do g r i e v o us bodily h a r m. My t wo assessors agree. W CM M A Q U TU J U D GE S E N T E N CE After hearing addresses in mitigation — A c c u s ed is sentenced to twelve m o n t h 's i m p r i s o n m e nt or in lieu of i m p r i s o n m e n t, a fine of M 2 0 0 0 - 0 0. T he firearm is forfeited to the C r o w n. A c c u s ed is g i v en 30 d a ys to p ay the fine. F or the C r o wn F or the accused : : Mr Griffith Mr L o u b s c h er W CM M A Q U TU J U D GE