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

2

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.

3

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

4

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