CRI/A/1-2/85
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MALANG MONYANE 1st Appellant
MOTEKA MOTEKA 2nd Appellant
V
REX Respondent
JUDGMENT
Delivered by the Hon. Acting Mr, Justice S. Peete on the 20th May. 1985.
The two appellants were convicted by the Resident Magistrate, Mr. G.H. Mphafi, at Teyateyaneng Subordinate Court of culpable homicide and were each sentenced to serve imprisonment of four (4) years. The Crown had alleged that on the 9th day of March 1984 and at or near Ha Mokonyana in the district of Berea, the two appellants acting in concert had fatally assaulted one Thibakhoali Mokonyana.
At the trial, Mr. Mofolo, representing both accused, admitted as evidence the contents of the post mortem examination report and the police evidence that the deceased was found lying with injuries at Queen Elizabeth 11 Hospital (it is not clear from this admission as to whether the deceased was already dead when so found; it is also not clear as to the date when he was so found); the identity of the deceased was also admitted as proved. According to the autopsy report, the cause of death was due
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to intracranial haemorrhage.
Before going into the factual merits of this appeal, I think it is important that something ought to be said" about the nature of the factual admissions made by the defence counsel and admitted by the Crown. First, the autopsy report. In the case of S.v. Ndwandwe, 1976(1) SA. 323 it was held that "the mere handing in of a medico-legal report, even without objection, is not an admission in terms of section 284 (our section 273 of the C.P. and E. of 1981) .....of Act 56 of 1955 of what is contained therein ....... nor indeed that the deceased referred to therein is the same person mentioned in the charge." In the case of S. v. Thomo 1969(1) SA. 385 (A.D.) Wessels, J.A. succintly stated that unless care is taken in the precise formulation of admissions of relevant facts, much uncertainty could arise as to what fact an admission was intended to relate to. This is what also happened in this case.
In the present case the admission of the autopsy report can be construed in two different ways - (a) as admitting that the doctor performed the autopsy on the deceased who had certain skull injuries which in his opinion were a substantial cause of death; or (b) that the deceased suffered no injuries from the time he was assaulted by the appellants and that any medical treatment that was given did not constitute . a novus actus interviens. In the present case, there is no evidence as to how the deceased was transported to Queen 11 Hospital, no evidence or admission that he suffered no additional injuries en route thereto. We do not know on what date the deceased.
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died except to rely on the doctor's entry in his report that when he examined the body of the deceased on the 14th March 1984 he formed an opinion that death occurred less than 24 hours prior to his examination. The deceased must therefore have stayed alive in hospital for about four days and then died. Mr. Mofolo, however argued this appeal on the basis that the deceased died as a result of the wounds inflicted by the two appellants, who acted in self-defence. Therefore, safe for the cautionary approach recommended
above in the quoted cases, I however find that the learned magistrate was not wrong in finding that the injuries inflicted by the
appellants on the deceased were a substantial cause of his death and that there was no actus novus that broke the causal chain (Rex v Fred Tekane, 1980(1) LLR. 342 and the cases therein cited).
Coming to the merits of the appeal, I pointed to the counsel for the appellants that in order that his appeal would succeed he had to show that the learned magistrate was wrong in coming to the conclusion that the defence of private defence raised at the trial by his clients, ought to be rejected as false.
The Crown evidence showed that the appellant No.1's cattle had been impounded from a Leboella and that the two appellants, with threats, released the cattle and drove them away from the chief's pound. When this happened, the deceased - the chief's brother - was called for. On arrival, the deceased inquired why the appellants were forcibly driving the impounded cattle away. He had a "stick switch" in his hand. As the deceased approached
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them, the appellants started hitting him with sticks on the head as a result of which he fell down. Appellant No.1 even struck him as he lay prostrate.
The two main crown witnesses on being cross-examined by the defence counsel, denied that the deceased had a pistol or ever attempted to draw out a knife. It was clear that the reason why the deceased was, according to these witnesses, assaulted was just because he inquired why the appellants drove the impounded cattle away without first paying for the damages the animals had caused.
On the other hand, the two appellants, when giving evidence on oath, state that the deceased was the initial aggressor after they, the appellants, had been allowed to drive the cattle away. Appellant No.1 says the deceased attacked him with a stick and he appellant parried and struck the deceased on the nostrils; he then saw the deceased put his hand in the pocket as though drawing out a knife. He, the appellant, struck him a second blow on the head and the deceased then fell down on his pistol which had dropped out first. The version of the second appellant is along the same lines.
This Court cannot find fault with the conclusions of fact reached by the learned magistrate who saw and believed the two crown witnesses and rejected out right the concocted story of the appellants; neither did Mr. Mofolo advance any plausible ground upon which any criticism can validly be based. The appellants were never attacked by the deceased on that day. The pistol was never found. In the circumstances the appeal against
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conviction is dismissed.
These is also an appeal against sentence. It is trite lav; that sentencing is pre-eminently a matter for the discretion of the trial Court and this Court can only interfere if it is of the opinion that the trial court misdirected itself when passing sentence in that perhaps the trial court gave insufficient weight to certain factors. In the present case it cannot be said that the sentence was not competent; all that can be looked into is whether it induces a sense of shock or is inappropriate. It is true that the two appellants are first offenders and relatively young. It has howe,ver been said over and over again that .... "a first offender cannot as a matter of right expect that his" sentence will be suspended; Indeed, depending on the circumstances of the case, the Court may be compelled to impose a sentence of imprisonment (sometimes a very long one at that)"- Mojela v Rex 1977 LLR 321 per Mofokeng, J.
In the present case, there were however factors that aggravated the appellants' blameworthiness. This was an unwarranted attack on the deceased who, as the chief's brother, was inquiring why the cattle were being driven away. He had no weapons or sticks that could have made the appellants feel that their lives were in danger. The attack on the deceased was unwarranted as well as it was vicious. It showed utter disregard to the sanctity of human life and being. In the circumstances the appeal against sentence is also dismissed.
ACTING 1
JUDGE.
20th day of May 1985.
For the Appellant: Mr. C.D. Molapo
For the Crown : Miss Nku