Review
Cases No.10/99 CR13/99

Review
Order No.1/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

TATISO
MONEHELA LILLO MONEHELA

Thaba-Tseka District

REVIEW
ORDER

On the
25th January 1999, the two accused appeared before the Thaba-Tseka
Subordinate Court facing two charges. On the first count
it was being
alleged that they attempted to kill one Nkune Monehela by firing gun
shots at him on the 20th October 1998 at or near
Liseleng,
Thaba-Tseka. On count two it was alleged that they unlawfully and
intentionally had in their possession one AK 47 rifle
with eleven
rounds of ammunition in contravention of section 3 (c) (1) of
Internal Security (Arms and Ammunitions) Act No.17 of
1966.

The two
accused pleaded guilty to both charges and after the prosecutor had
given a lengthy outline of the facts supporting the
charge and after
the accused had accepted these facts as outlined, the learned
magistrate convicted them accordingly (C.P.E. section
240) and
sentenced them each to four (4) years on count one and to M400.00 or
one year on count two.

I was not
happy with the conviction and sentence on count one.

The facts
as outlined show that there exists a long standing family dispute
over inheritance between the accused and the complainant.
On the
20/10/98 there was a confrontation between the accused on one hand
and the complainant on the other; and when accused one
called the
complainant, the latter took to his heels and one of the accused
fired in the direction of the complainant. He was not
hit. The
pursuit followed

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and one
of the pursuers hit the complainant with a stone in the kidney
region. Though a medical report was handed in by the prosecutor,
it
is important to note that the accused were not charged with this
stone assault. It is clear that the accused shot at but missed
the
complainant.

In my
view, this is a case where the provisions of section 188 (3) of the
Criminal Procedure and Evidence Act of 1981 should have
been applied.
It reads:-

"If at the trial of any person on a charge alleging that he
killed or attempted to kill or assaulted any other person, it
has not
been proved that he committed the offence charged, but has been
proved that he pointed at the person against whom the offence
is
alleged to have been committed, a firearm, airgun or airpistol, in
contravention of any law, the accused may be convicted of
having
contravened that law."

I am not
convinced that the crown proved that the shot or shots were aimed at
the complainant or into the air in order to compel
him to stop. The
facts as outlined show that the provisions of section 25 (1) the
Internal Security (Arms and ammunition) Act 1966
were contravened.
The section reads:-

"(1) Whoever uses or attempts to use any firearm or ammunition
with intent unlawfully to endanger human life or cause injury
to any
person or property shall be guilty of an offence and liable on
conviction to the penalty prescribed in section 43."

The facts
of this case and the interests of justice require that the conviction
on count one be altered, as I hereby do, to a conviction
under
section 25 (1) above. But in view of the fact that the complainant
did not suffer any physical injury and regard being had
to the fact
that the accused both pleaded guilty and in mitigation stated that
nothing was being done to mediate in the family
feud, I am of the
view that a portion position of the sentence imposed should be
suspended. For attempted murder, suspension of
sentence cannot be
ordered (CPE - section 314). I therefore order that three of the four
years be suspended for a period of three
years during which the
accused should not be convicted of an offence involving violence to
person or pointing or use of a firearm,
in respect of which he is
sentenced to a term of imprisonment in excess of six months without
an option of a fine. I also order
that the sentences in both counts
run concurrently.

S.N.
PEETE

JUDGE

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CC: The
Magistrate - Thaba-Tseka

O/C
Police - Thaba-Tseka

O/C
Prison - Thaba-Tseka

O/C
Central Prison

CID
Headquarters -Maseru

Director
of Prisons

Director
of Prisons Prosecutions

All
Magistrates and Public Prosecutors