HIGH COURT OF LESOTHO
HLAO 1st Appellant
SETHATHI 2nd Appellant
by the Hon Mr Justice M L Lehohla on the 11th day of May. 1999.
instant matter the two(2) appellants Tsotang Hlao and Ralimpe
Sethathi were charged with the crime of Robbery and convicted,
end of the day of same; and accordingly sentenced to four (4) years'
imprisonment by the Senior Resident Magistrate Leribe.
important to indicate that the means used in carrying out the robbery
was none other than a firearm which was discharged
and no doubt had
put the complainants into great fright.
appellants pleaded guilty before the learned Magistrate and the
prosecution accepted their pleas; and thereupon outlined the
appears in the record.
reading of the record there is no doubt whatsoever that a robbery was
effected and that force and fear instilled in the
minds of the
complainants including after being disarmed, one of them being hit.
The one called Nchabeng was hit with a stick on
the forehead. So I
have no doubt that all the elements of robbery are present in this
the appeal is not against conviction but against sentence only; and
in a gallant argument readable from the heads of argument
Mr Teele appear the following :
"The appeal in merits is based on the fact that undue emphasis
was placed by the learned magistrate on the gravity of the
and that the personal circumstances of the appellants were ignored
and that the court had failed to take into account facts
which if had
been given sufficient weight would have mitigated the sentence
other hand Mr Rantsane has indicated that that shouldn't be a factor
as the question of sentence is eminently or pre-eminently
for the trial court, and that although those are factors which have
been raised, or are factors to consider, they do not
entitle an offender to lenient sentence or to a privilege. But one
has to weigh each one of these factors and look
at the principles
which can be distilled from every aspect of the spectrum.
the one hand it is true that a first offender or the fact that an
offender is relatively young doesn't entitle him to a
privilege yet the body of authority has indicated that in fact these
factors are alive and that the court cannot just be
blind to them.
be profitable to have regard to (Musetsi) Thebe vs R, LAC 1985-1989
where it was clear that a man of relatively tender
age had committed
a crime of murder and the big debate had gone on whether extenuating
circumstances existed in his case. The President
of the Court of
Appeal at the time, that was Schutz P., was outvoted by Aaron and
Mahomed JJA who found that the question of the
youthfulness of the
offender weighed heavily against imposition of death sentence in that
matter, although if one looks at the
one finds that the offender had just gone over the requisite minimum
age, that is had just exceeded the requisite minimum
age at the time
of the commission of the crime.
Court has had regard to the importance of the words :
"Youth is always an element which, depending on the
circumstances of the case, tends to mitigate the severity of
See S vs
Whiteheads 1970(4) SA 424 at 436 G by Ogilvie-Thompson J.A.
and entirely endorse those remarks. Not far behind Ogilvie-Thompson
J.A. in the same vein as above comes Botha J.A. in
S vs Jansen and
Another 1975(1) SA 425 at 427 where it is stated :
"In determining the appropriate sentence to be imposed upon an
accused person in any particular case, it is the duty of the
have regard not only to the nature of the crime committed and the
interests of society, but also the personality, age
of the offender".
his submissions Mr Teele struck the right cord in this Courts
thinking when he referred to youthful bravado where an otherwise
law-abiding young person who would not do anything wrong; but
observing others of his age doing it feels that he would be behind
hand if he didn't participate in wrongdoing.
Court itself, like Mr Teele says he has herded after stock, has been
a herdboy and was tempted in a number of instances to
everybody else, meaning a herdboy, was doing.
question of youth peer pressure does have an effect on people who are
of immature age and it is revealing that the above authorities
have referred to indicate that these things have got to be taken into
fairness to the learned magistrate herself in going about her
assessment of this case, she indicated that she doesn't know why
these fellows using a gun opted to have those sticks belonging to the
complainants. She didn't attach much value to the sticks
said; well she has never used sticks as a result there wasn't much
she could say nor understand about what value and what
it is that
people would attach by way of value to sticks. But definitely the
complainants themselves did attach a lot of value
to their sticks, so
it is not surprising that their tormentors were attracted to the
value of these sticks and if the learned magistrate
had understood it
the way that somebody who has used a stick or had attached value to
sticks or understood what a stick means to
a herdboy or how
possession of one or dispossessing another of such possession, gives
the other the sort of pride enjoyed by herdboys,
have been better able to understand what is involved here.
I have no
doubt that robbery by any ways or means is a serious offence and the
attitude of the magistrate there is well indicated
in the sentence
that she imposed, but unfortunately these other factors which ought
to have been taken into account also were not.
There is not much one
can say by way of finding fault in the magistrate's approach except
that there is an element of over caution
in the whole matter that
clouded the real issue.
off or to give weight to everything referred to in head (b) styled
Personality of Apellants I would say the accused are
and unsophisticated herdboys; and learned counsel for the appellants
has referred in his heads to S vs Nkpoma
1984(3) SA 666 at 675 C, and
has submitted that the use of a firearm does not detract from the
facts the palpable and real lack
of sophistication, and that the
possession of the firearm only points to the extent of the
proliferation of firearms; and this
seems to be true as well.
Firearms are found all over the show. So, if somebody possesses one,
that doesn't necessarily mean ill-use
is going to be made of that
weapon: all that this means is these things are available in a big
way, so if somebody who is not sophisticated
avails himself of a
dangerous weapon like in the instant
it has to be borne in mind that the dangerous weapon was made easily
available to him in the first place. By that I am
not trying to say
that he should be excused if he abuses it.
Counsel went on to say that, but the fact that the accused could use
a gun to acquire an inferior weapon, i.e. a stick shows
level of sophistication.
that point is well grounded and well conceived and it has been
reiterated by learned counsel here that the learned magistrate
perceive this crime as manifesting some immaturity and this has been
gathered of course clearly from the record, therefore
is legitimate that it appears the learned magistrate failed to give
this aspect of the matter due weight when imposing
that about summarises the failure of the learned magistrate.
I have no
quarrel whatsoever with the submissions made by Mr Rantsane, they are
all legitimate, they are all welcomed but the crucial
point is that
there is, or there appears to have been an over-reaction on the part
officer in the court below when she came to sentencing.
result therefore the Court feels that it is at large to intervene and
impose punishment afresh.
the Court sets aside the sentence imposed by the learned magistrate
and in its place imposes one of two(2) years' imprisonment.
And it is
Appellants : Mr Teele
Respondent: Mr Rantsane
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