HIGH COURT OF LESOTHO
ANDREAS van der MERWE
by the Hon. Mr Justice M.L. Lehohla on the 15th day of May, 2001.
has been told that all the above accused have no previous
regard to accused 1 the plea raised in extenuation concerning his
youth was once more raised in the plea in mitigation.
important point raised which is common to all accused is that they
were arrested in 1995 but the trial only started in August 2000.
to accused 1 the argument relating to his imbecility was once more
raised but the treatment accorded this aspect of the matter during
the extenuation phase of this proceeding will suffice.
aspect the learned Counsel for accused 1 pleaded with the Court to
bear in mind is that accused 1 has cooperated with the police during
investigations. Further that no evidence suggests he was
uncooperative. I agree with this submission.
I have in
part already dealt above with aspects touching on accused 4. He is
said to be a diabetic in need of constant medical attention. Further
that he has kidney problems treatable only in South Africa. The Court
is indeed sympathetic but if custodial sentence is necessary then it
will be up to the state to see what to do to let the accused get
benefit of advanced medical treatment only available in South Africa
without on the one hand frustrating the ends of justice in this
concerning this accused Mr Lesuthu painted a rather pathetic picture
of a man who is virtually a vegetable in contrast to the visual
appearance of a robust panel beater who is rosy about his gills. He
is said to have a nasal problem since
been assaulted by police while in detention. Further that he has a
phobia for prison life such that the last couple of days he remained
there pending sentence led to the deterioration of his physical
health. Thus it was suggested the present day prison congestion would
lead to his possible death there. He indicated that accused 4 was
arrested on 3-7-95 and remained in custody till 25-10-96 when he was
released on bail having spent 18 months in custody. This is an
important point worth bearing in mind.
Mahlakeng Counsel for accused 5 indicated that accused 4 and 5 have
been found not guilty in all counts. I agree.
pleaded that because they have been found guilty of a lesser offence
their sentences be proportionately lighter. It was suggested that
even though the offence accused 5 has been convicted of is theft the
nature of the offence he is convicted of is not such that he went out
of his way to go hunting for a vehicle to steal. On the contrary
evidence led shows that the vehicle came into his possession. No
evidence showed attempt to obliterate identity of the vehicle, it was
here learned counsel is confusing the operation of the statute under
accused 5 and 4 have been convicted with a charge under specific
terms of the
operative Revision of Penalties (Amendment) Order No. 10 of 1988
since repealed. This law during its term of existence specified
minimum punishment in respect of robbery, theft of stock, theft of
motor vehicles etc all of which were common law offences with the
exception of stock theft which was then governed by stock theft
section 185(l)(d) read with section 343 of our Criminal Procedure and
Evidence Act deals with all other invisible methods of committing
theft it is not prudent in my view to submit virtually that a
particular accused didn't set out steal but rather that a product of
theft landed in his lap. The operation of the above sections is
intended for a myriad of just such instances where a thieving mind
counts not its blessings for receiving ill-got gains.
will take into account the fact that in giving evidence accused 5 in
his own way embarked on trying to investigate the death of
common cause also that during the period 1994 to 1995 the country was
suffering from lawlessness. But in my view the fact that there is
lawlessness does not
anybody to interfere with the rights of law-abiding citizens. In fact
there is a need to discourage, by operation of law if only to
indicate to those, so inclined that the game is not worth the candle.
Clouded minds of citizens who gravitate towards mischief during times
of crisis cannot be allowed to make a merit of wallowing and
indulging in crime with impunity.
listened to all the arguments I feel I would be failing in my duty if
I should impose sentences other than custodial even although the
accused are first offenders all. Where applicable I am persuaded to
suspend part of the custodial sentences though.
stated above I will also take into account the fact that accused 4
has spent 18 months in custody before being granted bail pending this
regard to accused 1 the Court is keenly aware that the two murders
were committed in the course of a robbery. This on all counts
aggravates his offences.
circumstances the least sentences proposed are as follows : Accused 5
is sentenced to six years' imprisonment in respect of common
of a motor car. Half of this sentence is suspended for two years on
condition that he is not found guilty of an offence of which
dishonesty is an element, committed during the period of the
is sentenced to 6 years' imprisonment half of which is suspended for
2 years on condition that he be not convicted of a crime involving
dishonesty committed during the period of the suspension. The
unsuspended period of 3 years is reduced by 18 months spent in jail
before being granted bail; thus leaving accused 4 with effective
sentence of 1½ years to be served.
1. - in Count I is to undergo twenty-five years' imprisonment
- in Count II he is to undergo twenty-five years' imprisonment to run
concurrently with sentence in Count I
- in Count III he is to undergo six years' imprisonment to be served
on expiry of sentences in Count s I and II.
sentences will run together with whatever sentence he is presently
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