R v Mpokoma (CRI/T 7 of 99) [2000] LSCA 115 (17 November 2000)

1 CRI/T/7/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs 'MAZULU MPOKOMA J U D G M E NT Delivered by the Hon. Mr Justice M L. Lehohla on the 17th day of November. 2000 H . L. W ho w a n ts to tell me w h at n ow at this stage? CC Y o ur Lordship at this stage I w o u ld like to d r aw the attention of the C o u rt to the fact that we h a ve c o me to s o me kind of a g r e e m e nt with the defence that the accused's state of m i nd falls within the ambit of section 1 66 of the Criminal P r o c e d u re a nd E v i d e n ce A ct read together with section 1 72 of the Criminal P r o c e d u re a nd E v i d e n ce A c t. H . L. To w h at effect? CC Section 1 66 m a k es reference to the effect that w h en an accused person is called u p on to plead a nd the court is satisfied thereupon the court will then treat her in terms of section 1 72 a nd m a ke an order accordingly. H . L. If it appears to the court that the accused is insane? CC T h at is so my Lord. H . L. Or if the court is uncertain that the accused understands a plea, or is capable of understanding the proceedings then she should be treated in terms of section 1 7 2; then w h at d o es section 1 72 say. CC Section 1 72 then says the court will then m a ke an order after convincing itself as to the state of m i nd of the accused. T he court will then m a ke an appropriate order. H . L. H a ve y ou b e en able to c o m m u n i c a te with her? S u p p o s i ng I ask her to stand up will she be able to do that? DC S he is responding s o m e t i m e s, s o m e t i m es she is not responding. I don't k n ow the court c an tell her my Lord. H . L. W h at is her n a m e? DC ' M a s o lo H . L. ' M a s o l o! W h a t 's y o ur n a m e? - T he accused did not reply H . L. O k a y, oh well f r om the y ou h a ve read the report? DC Y es my L o rd I h a ve read the report H . L. T he report by the doctor w ho has since left? DC Y es my L o rd H . L. T he Psychologist/Psychiatrist? DC Y es I read it my L o rd H . L. N ow I really w o n d er w hy the Magistrate didn't act in terms of the A ct - because this report w as received by the learned magistrate w ay b a ck in 1996. O k ay sit d o w n. O h, she understands English. Evidence of ' M a t e b o ho T h o so given on oath. H . L. A re y ou a relation of the accused? ' M a t e b o h o: Y es H . L. H o w? ' M a t e b o h o: S he is my sister H . L. B l o od sister or h o w? ' M a t e b o h o: We are from the s a me m o t h er H . L. W e ll your sister h ad the misfortune to kill her o wn child. Do y ou k n ow about this? ' M a t e b o h o: Y es my L o rd H . L. H ow old w as the child? ' M a t e b o h o: R o u g h ly about 2 years. H. L. W as it a girl or a b o y? ' M a t e b o h o: S he w as a girl H. L. W as the accused married or w h a t? ' M a t e b o h o: S he w as o n ce married H. L. H ow old is she n o w? Is she older or younger than yourself? ' M a t e b o h o: S he is y o u n g er than m e. H. L. H ow old is she? By h ow m u ch do y ou exceed her by age? ' M a t e b o h o: S he w as b om in 1966 H . L. Y e s, it looks like w h en in fact the killing of Lerato occurred on the 4th D e c e m b er 1 9 96 the accused w as referred for mental treatment or observation on the 9th of the s a me m o n t h. A re y ou aware of that? ' M a t e b o h o: Y es my Lord. H. L. W h e re w e re y o u? ' M a t e b o h o: I w as w h e re I stay at Morija. We don't stay at the s a me place H. L. Y ou w e re at Morija w h en she w as referred for medical mental observation? ' M a t e b o h o: I ask m y s e lf whether the observation w as m a de by the psychiatrist or H. L. Y es she w as treated by a psychiatrist at Paray Hospital at T h a b a - T s e ka ' M a t e b o h o: T h e re I w as not present H . L. Y ou live at Morija? ' M a t e b o h o: Y es my L o rd H . L. A nd w h at about her? ' M a t e b o h o: S he lives at T h a b a - T s e k a, M o h l a n a p e n g. H . L. Is there a n y b o dy there w ho m ay h a ve b e en present w h en she w as referred to this Paray Hospital? ' M a t e b o h o: No my L o rd they are not there. H . L. N ot e v en witnesses? ' M a t e b o h o: No my L o rd they didn't k n ow that they w e re supposed to be there. DC T he court w as trying to find out w h e t h er the accused w as sent to mental hospital by application of the family H . L. Y es this is w h at I w as trying to find out but I w a nt to find out f r om s o m e b o dy w ho actually k n o w s. Y ou see I h a ve already indicated to y ou that the child w as killed on the 4th D e c e m b e r, 1 9 9 6, five d a ys thereafter the accused w as referred for mental observation or treatment. That's fairly close. Isn't it? ' M a t e b o h o: Y es my Lord. H . L. N ow tell me w ho do y ou think sent her there? Or h ow did y ou c o me to learn that she w as referred to any s u c h? 'Mateboho: I learned that she w as sent there whilst she w as here at the female prison because I w as asked for her medical history book. H. L. O h, it w as d e m a n d ed of y ou by the prison staff? 'Mateboho: Y es my Lord and the doctor also H. L. w h e re is it n ow that b o o k? 'Mateboho: It remains with the patient w h e re she is. H. L. W ho takes care of her w h e re she lives w h en y ou are at Morija and she lives at Thaba-Tseka? 'Mateboho: I cannot say there is a person w ho has the full responsibility because she w as living with her kids alone. H. L. Y o ur parents are still alive? H er parents? 'Mateboho: No my Lord H. L. Y ou said she had been married, w h at happened to the husband? 'Mateboho: T h ey separated. H. L. W h e re is the husband n o w? 'Mateboho: I don't k n ow anything about his whereabouts. H. L. W hy did they separate? 'Mateboho: I think it w as misunderstanding between t h em because they stayed together for about t wo years and she returned h o m e, and the parents w e re still alive. H. L. I see, a nd then the question of c o m m u n i c a t i o n. Y ou see I asked her w h at her n a me is a nd she d o es not tell m e. I asked her to stand up of course she did, I asked her to sit d o wn a nd she did. Do y ou h a ve the s a me sort of difficulty with her or d o es she c o m m u n i c a te well with y o u? ' M a t e b o h o: At times this period of silence c o m es a nd at times she d o es things perfectly well. H . L. A p a rt f r om this episode w h i ch occurred to her o wn child do y ou k n ow her to h a ve bouts of violence or something towards other persons? " M a t e b o h o: Y es my Lord. H . L. O h, she h as bouts of violence? ' M a t e b o h o: Y es my Lord. H. L. Do y ou w a nt to ask her anything? D C: A s s u m i ng the court finds her guilty a nd then the court m a k es r e c o m m e n d a t i o ns that she g o es to mental hospital, w ho will take care of her? M ay be just to go a nd see h ow she is progressing a nd things like that? Will y ou take care to k e ep a nd p e ep to see her whether she is i m p r o v i ng or not? " M a t e b o h o: I will go a nd visit her. C C: At the time w h en she strangled her child w h e re w e re y ou living? ' M a t e b o h o: I live at Morija, that is w h e re I live for my life. C C: A nd after the occurrence of this strangulation did y ou go to T h a b a - T s e ka a nd then h ow s o on w as that? ' M a t e b o h o: T he day in b e t w e en after I h ad received the report. H . L. W e ll w h en y ou r e s p o n d ed to that m e s s a g e, did y ou find her a n y w h e re at h o me or in prison already? ' M a t e b o h o: W h en I arrived it w as said that she w as in prison at T h a b a - T s e k a. W h en I arrived at T h a b a - T s e ka female prison it w as said that she h ad b e en transferred to M a s e ru female prison. C C: Do y ou go a nd see her at the female prison M a s e r u? ' M a t e b o h o: I am g o i ng there often. C C: No I am saying immediately after she h ad strangled her child? ' M a t e b o h o: Y es w h en I c a me f r om T h a b a - T s e ka I w e nt straight to the female prison C C: A nd h ow did y ou find her on y o ur arrival there? ' M a t e b o h o: To my observation she couldn't talk to me or she w as the person w ho appeared to h a ve no insight of w h at w as happening. C C: I h a ve nothing further y o ur lordship. C r o wn C o u n s el read the contents of the report of the doctor. C C: T he contents read as follows and this report w as m a de by o ne Dr C. J. Doherty, a nd it reads as follows :"To the officer in charge Thaba-Tseka L MP station, T h a b a - T s e ka Lesotho - Re:'Masolo M p o k o ma patient - T h a n ks for asking us to assess this patient, w ho is said to h a ve strangulated her child to death. T he patient, the thirty-two year old u n e m p l o y ed claimed she killed her t wo year old child because of pity, so that the child doesn't die of hunger. On assessment of the mental state, she lacks judgment, insight and there is mild mutism. Although the reaction to questioning w as appropriate, reasoning w as crossly out of context. T he appearance, dressing and c o m p o s u re w e re in keeping with a previous diagnosis of major Psychopsis ( schizophrenia). S he w as actually admitted to this hospital in January 1 9 96 for treatment but defaulted. S he did take the follow up treatment ever since. B a s ed on the forgoing, she is a confirmed psychotic (mentally ill person) T h a n k s, Y o u rs faithfully(Dr C. J. Dolerty, Parray Hospital with the rank of Medical Officer) C C: A nd this report is dated the 9th D e c e m b er 1996. That is all your Lordship. H. L. T h a n k s. Y ou w a nt to hand it in? C C: We w o u ld like to h a nd it in your Lordship H. L. That will be Exhibit 'A'. So y ou say that y ou are agreed that she be treated in terms of the t wo sections? C C: T h at is correct y o ur Lordship D C: T h at is so my L o r d. H . L. T he accused, ' M a s o lo M p o k o ma h as b e en charged with the crime of m u r d e r: in that u p on or a b o ut 4th D e c e m b e r, 1 9 96 a nd at or near M o h l a n a p e ng in the district of T h a b a - T s e k a, she unlawfully a nd intentionally killed o ne Lerato M p o k o m a. T he accused has not b e en asked to plead to this charge b e c a u se it appeared f r om the d o c u m e n ts in the Court's file, a nd to the court's observation of the accused herself that s he doesn't s e em to be well upstairs as they say. S he r e m a i n ed to glued to her sit w h en the C o u rt c a me into Court, w h en the C o u rt asked her n a m e, she didn't give it, h o w e v er to her credit w h en asked to stand up she did a nd w h en asked to sit d o wn she did. T he fact that she r e m a i n ed silent without saying anything by w ay of response to the Court's questions confirms w h at the doctor w ho treated her a nd referred to this state of affairs as her 'mild m u t i s m' that's silence. In an e n d e a v o ur by the court or rather before that, both counsel informed the court that it w o u ld be profitable if the accused w e re to be treated in terms of section 1 66 read with 1 72 of o ur Criminal Procedure a nd E v i d e n ce A c t. T he court on its part a nd in an e n d e a v o ur to find out a little about her history, called forward P W1 ' M a t e b o ho T h o so w ho told the C o u rt that she is related to the accused a nd that the accused is her sister, a nd that they are b om of the s a me m o t h e r, a nd ' M a t e b o ho T h o so is a w a re that the a c c u s ed killed her t wo year old daughter, a girl called Lerato. ' M a t e b o ho told the C o u rt that the accused w as o n ce married but h as since separated f r om her h u s b a nd within t wo years of s u ch marriage. S he told the C o u rt that the accused w as b om in 1 9 6 6. A l t h o u gh w h en the event t o ok place she w as not there, she is a w a re that on 9th D e c e m b er 1 9 96 the accused could h a ve b e en undergoing mental treatment, s he is inclined to this v i ew b e c a u se w h en she r e s p o n d ed to the m e s s a ge that the accused h ad killed her daughter on the 4th D e c e m b er 1 9 9 6, a matter to w h i ch she r e s p o n d ed by g o i ng to the accused's h o me within t wo d a ys of receiving this m e s s a g e, she w as asked for the accused's m e d i c al b o ok by a doctor w ho w as treating the accused, in collaboration with the prison authorities. This is h ow she got to k n ow that the accused h ad b e en referred for m e n t al treatment. S he told the C o u rt that the accused w as living alone w i th her kids a nd that n o b o dy has full responsibility towards her, as their parents are no longer alive. S he indicated that the accused has got this habit of remaining quiet e v en w h en she is being spoken to, a nd that she has bouts of violence towards other persons. S he confirmed that e v en w h en she w e nt to see her in prison, there w as no c o m m u n i c a t i on b e t w e en the t wo despite her attempt to let the accused speak to her. This is in brief the evidence that has b e en adduced today. N ow on the law, section 166 of our Criminal Procedure a nd Evidence A ct reads as follows : "If w h en the accused is called u p on to plead to a charge, it appears to be uncertain for any reason whether he is capable of understanding the proceedings at the trial so as to be able to m a ke a proper defence, a procedure prescribed by section 1 72 shall be observed". T he procedure under that section, that is 1 72 subsection (2) reads as follows : "If the court finds the person charged with an offence insane or mentally incapacitated pursuant to subsection (i), the judicial officer presiding at the trial shall record such verdict or finding, and shall issue an order committing such a person to s o me prison pending the signification of K i n gs Pleasure". I h a ve already indicated that the a c c u s ed w as not asked to plead, only if s he h ad b e en asked to plead, w o u ld a verdict c o me a n n o u n c i ng her either guilty or n ot guilty, but as it is the court finds that s he is incapable of following the p r o c e e d i ng b e c a u se of her m e n t al incapacity. Dr D o h e r ty w h o se m e d i c al report h as b e en m a de part of this p r o c e e d i ng m a r k ed Exhibit ' A' has indicated that the a c c u s ed suffers f r om m e n t al disease, a nd a m o ng other things, she/he h as indicated that previous diagnoses of this patient manifests a m a j or psychosis k n o wn as (schizophrenia) indeed criminal jurisprudence h as h ad to deal w i th on m a ny occasions, p e o p le w ho suffer f r om schizophrenia. O ne notable p e r s on w a s, in this regard, a m an w ho h as since died, n ot so long a go called Tzaffendas n o t ed for h a v i ng killed the P r i me Minister of S o u th Africa Dr V e r w o e r d e. O ne of the things that o ne gathers f r om people w ho suffer f r om this type of thing is that they at times b e h a ve perfectly normally, a nd o ne thing that the doctors a nd psychologists are at o ne w i th regarding schizophrenia is that they h a ve no sense of s h a me w h a t s o e v e r, they are not guilt-ridden, they c an kill the w h o le host of p e o p le here a nd manifest no regret w h a t s o e v e r. So it is in this regard that the only place w h i ch w o u ld ensure the safety of the c o m m u n i ty w h i le at the s a me time not punishing, b e c a u se courts c an only p u n i sh c o m m i s s i on of c r i me but n ot punish p e o p le w ho h a ve not b e en convicted is to refer t h em to an institution p e n d i ng signification of the K i n g 's Pleasure. It is for this reason therefore that acting in terms, of section 1 72 subsection (2) of o ur Criminal P r o c e d u re a nd E v i d e n ce A ct I order that the accused by virtue of her m e n t al illness be kept in s o me prison p e n d i ng the signification of the K i n g 's Pleasure. T h at will be the j u d g m e nt of this C o u r t. JUDGE 17th N o v e m b e r, 2 0 00 For C r o wn : Mr H o e a ne For Defence: Mr Lesuthu