HIGH COURT OF LESOTHO
by the Honourable Mr. Justice M.M. Ramodibedi on the 21st day of
accused in this matter is charged with three (3) counts the full
particulars of which are as follows :-
"In that upon or about the 10th day of September 1991 and at or
near Sekamaneng in the district of Maseru, the said accused,
in concert with others, did unlawfully and intentionally kill one
TOLOKO CONSTANTINUS KIMANE."
"In that upon or about the 10th day of September 1991 and at or
near Sekamaneng in the district of Maseru, the said accused,
in concert with others, did unlawfully and intentionally steal a
motor vehicle namely - a Toyota
Station Wagon with registration number A3360, the property or in the
lawful possession of Tokoko Constantinus Kimane (now
COUNT 3: Conspiracy in contravention of Section 183(2) of the
Criminal Procedure and Evidence Act:
"In that during the period August to September, 1991 (the exact
date to the prosecutor unknown) and at or near Maseru in the
of Maseru, the said accused, did unlawfully and intentionally
conspire with Samuel Maliehe, Teboho Michael Chaka, Remaketse
Sehlabaka, Monyake Mathibela and others, to aid or procure the
commission of or to commit the offence of murdering one Sam Rahlao,
an employee of Standard Bank Chartered, Maseru."
19th August 1999 when the indictment was read to the accused he
pleaded guilty to Count 1 (Murder) and Count (3) Conspiracy).
pleaded not guilty to Count 2. The plea of the accused in respect of
these three counts was duly accepted by the Learned Director
Public Prosecutions Mr. Mdhluli for the Crown. In respect of Count 2
the Learned Director of Public Prosecutions immediately
charge and duly submitted that the accused should be acquitted. In
the circumstances the accused has since been found
not guilty in
respect of this count and has been acquitted.
Count 1 (murder) Mr. Phoofolo for the accused duly informed the Court
that his clients plea of guilty to murder was in accordance
instructions and in fairness to him he has consistently persisted in
this attitude throughout the trial which must no
doubt go in history
as one of the shortest trials this Court has known to date in a
matter as serious as this
perhaps state at the outset that although it is extremely unusual and
unheard of for a represented accused person to plead guilty to murder
on the instructions of his legal representative as
a matter of
general practice there is nothing stopping such an accused person
from making a clean breast of the charge laid against
him. Each case
must however certainly depend upon its own particular circumstances.
the accused's plea of guilty to murder in Count 1 however this Court
recorded a plea of not guilty and put the Crown to
the proof of its
case beyond reasonable doubt. The Court adopted this approach in
terms of Section 240 (1) (a) of the Criminal
Procedure and Evidence
Act 1981 which reads as follows :-
"240 (1) If a person charged with any offence before any court
pleads guilty to that offence or to an offence of which he
found guilty on that charge, and the prosecutor accepts that plea the
it is the High Court, and the person has pleaded guilty to any
offence other than murder, bring in a verdict without hearing
evidence; (emphasis added)"
underlined the words "other than murder" to indicate my
view that the Court has no power to record a plea of "guilty"
in a charge of murder. The use of the word may in the section is in
my view both empowering and also indicative of a judicial discretion
vested in the Court that is to say in all charges other than murder
coming before the High Court the Court shall have power and
discretion to bring in a verdict on the accused's plea of guilty
without hearing any evidence. In the case of murder the High
may not, or does not, have such power and/or discretion but simply to
record a plea of "not guilty" and proceed
to determine the
issues in the ordinary way. It may only bring in a verdict at the end
motivation for the above proposition is, I venture to say, that
murder is obviously a very serious offence which is punishable
death where there are no extenuating circumstances. This is so in
terms of Section 297 of the Criminal Procedure and Evidence
Now experience shows that very often an accused person will plead
guilty to an offence out of sheer ignorance or sometimes
bravado or for reasons best known to himself, or because he was
poorly advised (the list is not exhaustible). It thus behoves
Court to ensure that in a matter as serious as murder is that the
full circumstances of the accused's guilt are proved beyond
reasonable doubt. That is the very foundation of our criminal
jurisprudence as I have always perceived it to be.
for the law. I turn then to the facts of the case which are common
cause and are mostly contained in a "summary of
Facts" jointly prepared by the Defence Attorney Mr. Phoofolo and
the Learned Director of Public Prosecutions admittedly
consultation with the accused himself This "summary of
Substantial Facts" was handed in by consent as EX "A"
and because of its importance I consider that it merits quotation in
full: It crisply states the following-
deceased TOLOKO CONSTANTINUS KIMANE was found
dead near Sekamaneng in the district of Maseru on the llth-September
1991. His body was found near a donga on the Main North 1,
from the National Abattoir. He had sustained gunshot wounds on the
upper part of his body.
the deceased met his death he had been employed by the erstwhile
Barclays Bank PLC as a branch manager at Maseru.
Rahlao who is the subject of Count 3 was at all times material
hereto employed in a managerial capacity at the erstwhile Standard
Bank Chartered, Maseru branch.
or about the 22nd July 1991 members of the Lesotho Union
Employees (Lube) who were employed by the two commercial banks,
namely Barclays Bank PLC and Standard Bank Chartered embarked
strike and asked the two banks to start negotiations with them. The
management at the said two banks regarded the strike declared
as illegal and refused to enter into negotiations with Lube,
insisting that the workers should return to work before negotiations
could commence. Numerous attempts by mediators to try and settle the
dispute between the striking Lube members and two commercial
accused was at all material times hereto employed by the Barclays
Bank PLC at its Leribe branch. He was one of those members
who had decided to embark on strike action in July 1991. He was
active in the activities of Lube at Leribe.
the strike by members of Lube proceeded it became apparent that the
union's attempts to negotiate with the affected banks were
knock. The banks persisted in their refusal to negotiate with Lube
while the strike which they perceived to be unlawful
of the members of Lube who initially supported the strike action
advocated by Lube began withdrawing their support
and were returning
to work. As some of the members of Lube broke ranks with those who
supported continuation of the strike action,
the leadership of Lube
came out in favour of continuing the strike. There were then clear
divisions between those members of
Lube who wanted to return to work
and those who chose to pursue the strike path.
Lube members in Leribe realising that the strike action was losing
steam decided to approach the leaders of Lube to seek
advice as to
what they could do to ensure that the strike succeeded and to
bolster the waning support of continuation of the
accused was one of those who came out solidly for the continuation
of the strike.
firm supporter for the continuance of the strike action, the accused
approached some of the Lube leadership to discuss ways
and means of
thwarting efforts to break the strike. Apparently some members of
Lube leadership agreed that stem measures needed
to be taken to
reaffirm the resolve of those members of Lube who wanted the strike
to succeed The accused agreed with some Lube
leaders that some of
those in management positions could be considered legitimate targets
for elimination in the hope that such
intimidatory tactics would induce management to enter into
negotiations with Lube.
his meeting with some individuals in the Lube leadership the accused
returned to Hlotse determined to recruit hired hands
to help to
assassinate those members of management who were perceived by hard
core Lube strike advocates to be standing in the
way of the
his return to Hlotse, in pursuance of the agreed objectives to kill
certain members of the management of the affected banks,
recruited certain people who had some military training to assist
them in carrying out their objective. Among those
who were recruited
by the accused were his cousin FUSI KOETJE and a friend of his
MONYAKE JOSEPH MATHIBELA. The two aforementioned
accomplice witnesses at the trial of the co-conspirators of the
accused. One of the co-conspirators of the accused
was one SAMUEL
MONONTSI MALIEHE, who was tried separately with others in CRI/T/2/92
for the same offences with which the accused
to the accused's and his co-conspirators' plan to kill certain
members of management of the two affected banks, the accused
together with his co-conspirators came to Maseru three times to make
preparations for carrying out their intended objective.
of their visits to Maseru two of their intended victims were
identified. These were the deceased and Mr. SAM RAHLAO
who is the
subject of Count 3.
the 10th September 1991, one of their intended victims, the
deceased, was shot and killed in his car. Present in the car when
the deceased was shot were the accused, SAMUEL MONONTSI MALIEHE and
MONYAKE JOSEPH MATHIBELA referred to herein. At the trial
MONONTSI MALIEHE, MR MATHIBELA admitted taking a leading role in the
planning and execution of the conspiracy to kill
the deceased. There
is some dispute as to who did what when the deceased was killed but
all those present in deceased car had
all agreed that he should be
prosecution alleges that at all material times hereto, the accused,
those with him in the deceased's car and others acted
of a common objective to commit the alleged crimes.
accused duly admitted and adhered to the contents of EX 'W which was
read into the record as part of the Crown case.
terms of Section 273 of the Criminal Procedure and Evidence Act 1981
an accused or his legal representative in his presence
may in any
criminal proceedings admit any fact relevant to the issue and such
admission constitutes sufficient evidence of that
fact. EX "A"
must therefore be viewed in that light as indeed it in effect
constitutes admissions by the accused.
consent with Mr. Phoofolo for the accused the Learned Director of
Public Prosecutions once more handed in the deceased's postmortem
report by Dr. Olivier. This was marked EX "B". It reads as
a registered medical practitioner and hold the degree of M.Med (Med
Forens). I am registered (sic) the S A Medical and Dental
a Forensic Pathologist. 1 am employed by the University of the
Orange Free State as Professor and head of the Department
Forensic Medicine in the University of the Orange Free State,
Bloemfontein, the Provincial Administration of the Orange Free
and the Department of National Health as Professor and Chief State
the 25th September 1991, starting at 10:30, I conducted an external
post-mortem on the body of the deceased, CONSTANTINUS KIMANE
written request of attorneys Harley and Morris of Maseru.
body of the deceased was identified to me by Dr. Moorosi,
Pathologist, Government Mortuary, Maseru as been (sic) that of Mr.
Constantinus Kimane. Dr. Moorosi stated that the deceased had died
on the 9th day of September 1991 and that he himself had conducted
full post-mortem on the body. Dr. Moorosi was present and very
helpful during my examination of the body.
the time of my examination the body was totally naked. The clothes
that the deceased had worn at the time of his death, were
for my examination. The appearance of the body indicated that a full
post-mortem examination had already been done after
which the body
had been sutured.
of an adult male, no facilities to record length and weight of the
body. General early signs of muscular atrophy so that
appears to be overweight.
the time of the examination post-mortem changes had already set in;
dehydration and drying out of the skin and mucosa present.
especially accentuated around and in the wounds on the anterior
aspect of the body. Hypostasis present. Rigor mortis
Post-mortem loss of a small area of epidermis in the left groin
ante-mortem contusion-abrasion lesions on and in the skin, probably
caused by a slight blunt force, in the following areas:
7.1 Right forehead, about 3cm above the eyebrow, area of 2 x 2cm.
7.2 Smaller sligther area on the left forehead, about 1cm in size.
7.3 Lesion on the anterior aspect of the right lower leg, below the
knee, over the head of the tibia.
separate ante-mortem wounds and tracts in the chest, appearance of
through and through bullet wounds. For description purposes
8.1 Three bullet wounds through the chest. Relatively small round
penetrating projectile wounds with identical appearance, size,
circumference and diameter (7mm) on the posterior aspect of the chest
on the right hand side. Each of these wounds shows a very
abraision ring indicating entrance wounds. No other lesions or marks
or any stains around these wounds.
to A2: Circular round entrance wound in the skin on the right back,
about 6cm under the shoulder-neck area 8cm to the right
midline. Projectile penetrated from back to the front with an angle
towards the left with an exit wound A2 on the front
of the chest, 2cm
below the medial aspect of the right clavicula in the lateral part of
is star shaped, shows discolouration and drying and had the
appearance of an exit wound.
tract B1 to B2: Round circular entrance wound (B1) on the back of the
chest on the right hand side, 4cm inferior and medial
of wound Al.
Projectile penetrated from the back to front with an angle towards
the left with the exit wound through the lateral
edge of the sternum
with the exit wound in the skin just to the left of the sternum.
Projectile caused typical bevelling of the
sternum outwards towards
tract C1 to C2: Round circular entrance bullet wound in the right
side of the chest, 4cm inferior and medially to wound B1.
penetrated from the back to the front through the left lateral aspect
of the sternum, with the exit wound in the skin
just to the left of
the sternum. Projectile causes very typical outward fractures of the
8.2 Two bullet wounds with wound tract indicating an (sic) through
and through shot in the anterior aspect of the chest, obliquely
the right to the left. Wound and wound tract D1 to D2: Entrance
wound, ovally shaped, on the anterior aspect of the chest
right hand side just medially to the right nipple. Appearance of an
oblique entrance shot. Wound in the skin, anterior on
the chest on
the right hand side, about 2cm medial to the right nipple. Projectile
penetrated from right to left through the anterior
aspect of the
chest with a longitudinal exit wound on the left side of the chest,
2cm superior and lateral of the left nipple.
Evidence that this
projectile also penetrated the sternum.
Adult male. Slight injuries due to slight blunt force applications
to the head and the right lower leg. Three though
projectile wounds through the right side of the chest with the three
entrance wounds on the right posterior aspect
of the shoulder and
thoracks (sic) with the exit wounds in the central area on the
anterior aspect of the chest. Forth (sic)
oblique projectile wounds
through the anterior aspect of the chest. Entrance wound in the
region of the right nipple and the
exit wound in the region of the
left nipple. In the medico-legal evaluation of the above findings
the following aspects must
be kept in mind:
9.1 The clothes of the deceased were not available for inspection and
9.2 Second post-mortem was conducted on the 25th of September about
16 days after death.
9.3 Appearance of the external wounds may have been altered by the
post-mortem time factor.
9.4 The precise localization of the external wounds may have been
disturbed by the previous medico-legal post-mortem examination.
Dissection of the internal organs disturbed the internal tracts of
9.5 Evidence that might have been available at the time of the death
or shortly afterwards, may have been lost while the body was
and a post-mortem done.
my examination I came to the conclusion that the death of the
deceased was due to through and through projectile wounds
the chest with injury to vital organs.
know and understand the contents of this declaration. I have no
objection to taking the prescribed oath. I considered the prescribed
oath to be binding on my consience (sic).
J A OLIVIER CHIEF STATE PATHOLOGIST"
another postmortem report of the deceased was handed in by consent
marked EX "C". It is by Dr. Moorosi and is dated
November 1991. Stripped of its side issues the essence of this report
reveals that the deceased had a number of "perforating"
wounds of 0.5cm in diameter each on his body. The sketch diagram
provided shows no fewer than five of such wounds around the chest
area of the deceased. There are also a number of such wounds
indicated on the back of the deceased and the cause of death
to the Doctor was due to "contusion of aorta,
pericardium and right ventricle, with bilateral haemothorax and
be noticed that although EX "C" gives a more scientific
cause of death than EX "B" the two really complement
other. Accordingly I am satisfied that the injuries sustained by the
deceased were the primary cause of death and I so find.
evident from EX "B" that the injuries on the deceased were
inflicted with a firearm. The Doctor's findings were
that they were
"bullet" wounds causing injury to "vital" organs
of the deceased's body. There is indeed no
dispute about this.
all of the aforegoing factors within the context of the circumstances
of this case as a whole I come to the inescapable
conclusion that the
only reasonable inference to be drawn from the facts is that apart
from the accused's confession the killing
of the deceased was both
unlawful and intentional. That being the case I consider that the
offence of murder has actually been
terms of Section 240 (2) of the Criminal Procedure and Evidence Act
1981 any court may convict a person of an offence alleged
in the charge by reason of any confession of that offence proved to
have been made by him, although the confession
is not confirmed by
any other evidence "provided the offence has, by competent
evidence other than the confession, been proved
to have been actually
and sole question that arises for determination at this stage then is
whether the accused's statement EX "D"
amounts to a
confession in law In this regard I should mention that by consent
with Mr Phoofolo for the accused the Learned Director
Prosecutions handed in the accused's statement EX "D" made
to a Magistrate at Mafeteng on 18 September 1991.
I should mention as
accused confirmed that the contents of the statement were indeed made
by him freely and voluntarily without any undue influence.
statement reads as follows-
"It happened that in our Bank of Barclays Bank as we have Board
Union we asked that our salaries should be increased from
employers. We looked into the fact when our salaries were last
increased and we found that they were last increased in 1985.
our Union should negotiate with the employers and they seem not to
understand. We approached the Labour Commissioner to
make it possible
that we should meet our employers. He failed, then from there we
decided to go on a strike on 22nd July. While
we were on strike we
asked that the Labour Commissioner should make it possible that we
meet our employers again. They said they
were not going to have talks
with people who were on strike. We approached the Minister of
Finance. Employers sulked from that
meeting. Attempts were made to
meet the Lesotho Businessmen. They failed also. We tried to meet
Ntate Ramaema. We failed as well
- we failed to meet him. Bishops
tried to meet the employers and the Government seniors. They failed.
The community tried but failed.
Priests tried - they failed.
International Organisations tried but failed. And unions of workers
in the country tried but failed.
When this was the situation, these
people who were on strike held a meeting that they should see to it
how they are going to solve
the problem by engaging in violence.
the people of the NSS at Hlotse to be aware that these people who
were on strike and their grievances not addressed want
violence. I brought this to the attention of the police officer there
at Hlotse who is ntate Molapo. And that did not help.
obvious that banks were recruiting foreigners to come and work here
and employing new employees. All people who were on strike
that there be found people to come and invade/attack those people
working in the banks. I found two at Hlotse and I heard
found members of the ANC. Those that I found I made it possible for
then to meet committee members. And they agreed as
to when the job
the 9th I came with one ntate by the name of Mosia to Maseru I
introduced him to the leader so as to arrange for transport.
following day I came along with them being two in number.
arrived at Lancers Inn. We travelled in Teboho's vehicle to Lakeside.
While still waiting there, there arrived ntate Kimane.
Chaka said "here is one of our targets." And they planned
to attack that one that was nearer.
for a HA from him. We went to Borokhoaneng and back. After passing
Maqalika, Ramaleke shot him on the right hand side. Mosia
shot him at
the back on the shoulders. Ramaleke drove the vehicle and left him at
the donga. From there the vehicle proceeded to
arrival at Tsifalimali we had an accident. I even sustained injuries.
The following day I went to my home at TY. I took four
the wounds. On Monday I returned back to Hlotse. On Tuesday when we
had attended BCP meeting, one person arrived
there and informed me
that police were looking for me at my home. I asked him whether he
identified them and he said 'no'. I proceeded
to my place but found
them absent. I went to search for them. I found them at Motsoeneng's
place. I asked them that I heard that
they were looking for me and
they said 'yes'.
we should go to Charge Office. On arrival there I was asked questions
about Kimane's matter. They even informed me that
they knew each and
every action from Lakeside.
there they brought me here to Maseru where I was asked similar
questions. My answers were the same. I even informed them that
thing of this nature would still continue if steps are not taken."
Now it is
trite law that for a confession to be admissible as evidence against
the person making it, it must be proved to have been
voluntarily made by such person in his sound and sober senses and
without having been unduly influenced thereto. Such
is the whole
import of Section 228 of the Criminal Procedure and Evidence Act
common cause and I accordingly find that the accused made the
statement in EX "D" after having been duly warned
Learned Magistrate M. Makoa and that he made it freely and
voluntarily in his sound and sober senses and without having
unduly influenced thereto.
meaning of a confession was defined by De Villiers ACJ in R v Becker
1929 AD 167 at 171 in the following words with which I
unequivocal acknowledgement of guilt, the equivalent of a plea of
guilty before a court of law."
a whole the statement EX "D" reveals the accused's active
participation in the conspiracy to attack the deceased
and others who
were opposed to the strike by the bank employees (Lube). He
personally took part in luring the deceased to his killers
for that matter in the company of the accused himself The strategy
used to lure the deceased to his death was for the
accused and his
co-conspirators to ask for a lift from the deceased. It worked and
while the unsuspecting deceased was driving
along with this murderous
group he was brutally shot a number of times and was admittedly
killed in the process. His body was dumped
in a donga, one would
imagine, like a dog. Nobody apparently cared and that included the
accused. No report was made to the police
or indeed anybody to assist
the deceased in any way.
all of the aforesaid considerations I am satisfied that the context
in which the statement EX "D" was made amounts
confession to accused's participation in the murder of the deceased.
has called the evidence of PW1 'Mathakane Setlaba perhaps to ensure
that it left no stone unturned in its attempt to prove
guilt beyond reasonable doubt as indeed it must.
It is the
unchallenged evidence of PW1 briefly that she is 48 years old and is
by profession having obtained a degree in B.Ed Accounting from the
National Unversity of Lesotho (NUL) in 1996. In July
1991 she was
employed at Barclays Bank (Leribe Branch) as an Accountant. She had
been working for the bank for 17 years. She knows
the accused who was
her fellow worker at Barclay's Bank. He was a clerk and as such
junior to her.
confirms that in July 1991 the Lesotho Union of Bank Employees (Lube)
went on strike and that she too was involved in the strike
member of the Union. She further confirms that the accused too
participated in the strike as he was also a member of the Union.
While some members of the Union returned to work PW1 and the accused
"did not give up the struggle" and they continued
strike with others.
It is the
evidence of PW1 that on the 11th September 1991 she heard about the
death of the deceased who was branch Manager of Barclay's
(Maseru). On the same day in the morning she met the accused while
she was seated outside the bank with one 'Mampe Lehlabi
who was her
deputy. As PW1 opened the door of the vehicle on her way to the
toilet she saw the accused standing at the door of
the vehicle. PW1
testifies that the accused then told her that he (the accused) and
others had killed the deceased and that PW1
and her companion should
inform one Sejake Tuoane who was a shop steward but that if they
could disclose this matter then they
would follow suit. The accused
then left. It is further her evidence that she did inform Mr. Tuoane
as requested by the accused.
testifies that when the accused spoke to her he "looked like"
a frightened person. It is further her evidence however
enjoyed warm relations with the latter.
not cross examined at all and for my part I should like to say that I
watched her demeanor as she gave evidence and 1 got
that she was all out to tell the truth. I believe her evidence that
the accused confessed to her about his participation
in killing the
completed the Crown case.
pertinent to note that the accused did not testify in his own defence
nor did he call any witnesses. Consistently with his
plea of guilty
he simply closed his case. It was indeed his right to adopt this
approach. The onus of proof is always on the Crown
to prove its case
beyond reasonable doubt. Indeed our criminal justice system is such
that it is not for the accused to prove his
no evidence that the accused engaged in the actual shooting of the
deceased himself. His participation must then be determined
point of view that he admittedly took part in a conspiracy to invade
or attack those who were not engaged in the strike
deceased. It is the Courts finding that not only was the accused
active in this conspiracy but he also helped find
some men to do the
job. I imagine that in the underworld language such men would be
called hired assassins but it really does not
matter what they were
called and I shall accordingly ignore this terminology at this stage.
What matters is the length to which
the accused went in ensuring that
the conspiracy he shared with his co-conspirators became a reality.
As I have previously stated
this he ensured by personally luring the
deceased to his fate. He was thus in the position of an instigator in
furtherance of the
common purpose to attack the deceased.
true the modem approach is that there is no magical power contained
in the doctrine of common purpose and that where there
participation in a crime, each one of the participants must satisfy
all the requirements of the definition of the crime in question
before he can properly be convicted as a co-perpetrator. Such was the
view of the Appellate Division in S v Maxaba 1981 (1) SA
1148 (A) per
Viljoen JA. I do not understand the Learned Judge of Appeal however
to say that common purpose no longer forms part
of the law of South
Africa. I can say with confidence for my part that the doctrine of
common purpose is still part of our law
in this country (see for
example Costa Peter Saba v Rex 1991-96 LLR 13791). It must however be
used with caution to ensure that
innocent persons are not convicted
for crimes committed by others. I should mention that 1 have
cautioned myself accordingly in
the instant case.
attached due weight to the fact that there was a general plan by the
accused and his co-conspirators to invade or attack
bank employees including the deceased. The culprits felt that all
lawful means to address their grievances had
failed. In the context
of this case I consider that the plan to attack the deceased included
an understanding, express or implied,
that violence might be used
which in turn might result in the death of the deceased. In my view
the accused knew or ought to have
known about this eventuality. This
indeed is implicit in EX "A".
follows from the aforegoing that, in my view, the deceased was killed
in furtherance of the common purpose in which the accused
active role and was reckless as to the consequences. That explains
why he did not dissociate himself from the attack
on the deceased or
to render any assistance to him. His attitude in this regard was
consistent with and in furtherance of his avowed
with his co-perpetrators to "eliminate" or "assassinate"
the deceased as EX "A" indicates.
also attached due weight to the fact that the accused actually
pleaded guilty to the murder and that the plea was in accordance
the instructions of his attorney Mr. Phoofolo who is very experienced
indeed. As I have stated previously the accused's attitude
pleading guilty to murder has been very consistent throughout the
trial. He has never at any stage sought to withdraw the plea
guilty and as such I consider that the plea of guilty came from his
heart and was meant to reveal the truth that he personally
in the murder of the deceased in furtherance of the common purpose.
In R v
Kumalo and Another 1930 AD 193 at page 207 Stratford J.A. had
occasion to state the following:-
"The formal withdrawal of a plea of guilty no doubt gives the
accused the right to full trial on the issue of his guilt but
does not alter the fact, if it is the fact, that he has solemnly and
freely admitted his guilt; that confession stands as
respectfully agree. As earlier stated the accused has for that matter
never sought to withdraw his plea of guilty which in my
view was made
solemnly and freely. What this then means is that the accused's
confession before me as demonstrated by his plea
of guilty to murder
stands as admissible evidence against him.
that the accused has neither testified nor proffered any evidence in
his defence is in my view a factor that weighs against
him in the
of this case where there can be no doubt that the Crown's case called
for an answer.
all of the aforegoing considerations it follows that the Crown has in
my view proved its case on Count 1 beyond reasonable
Accordingly the accused is found guilty of murder.
me accused pleaded guilty to Count 3,I am being left with a very
uncomfortable feeling that a miscarriage of justice arises
is so because as I read this Count the Act from which the section
forming the subject matter of the charge has been
quoted, has not
been spelt out in full. It merely says "the Criminal Procedure
and Evidence Act" and it does not quote
the year of the Act. Yet
as I see it the statutory law relating to criminal procedure and
evidence in this country has always been
in a state of transition. It
is therefore important to inform the accused clearly where we
view, a charge must be reasonably informative enough to enable the
accused to prepare for his defence and to know exactly
what case he
is facing. He cannot be expected to hazard a guess. Where a charge is
founded on a statute it is imperative, in my
judgment, that full
particulars of the statute in question are quoted. Such particulars
must be such that they are reasonably sufficient
to inform the
accused of the nature of the charge.
follows from the aforegoing therefore that Count 3 is, in my view, so
fatally defective as to lead to a miscarriage of justice.
the accused is found not guilty on this Count and he is accordingly
therefore, the accused is found guilty of murder on Count 1. He is
found not guilty on both Counts 2 and 3 and he is accordingly
acquitted on those Counts.
Crown : Mr. G.S. Mdhluli
Accused : Mr. E.H. Phoofolo
of Section 296 (1) of the Criminal Procedure and Evidence Act 1981
the Court is now enjoined to determine whether or not
there are any
extenuating circumstances in this matter. That section reads as
"296 (I) Where the High Court convicts a person of murder, it
shall state whether in its opinion there are any extenuating
circumstances and if it is of the opinion that there arc such
circumstances, it may specify them."
view the most comprehensive definition of extenuating circumstances
is to be found in S v Letsolo 1970 (3)S.A. 476 AD at 476F-477B
following words :-
circumstances have more than once been defined by this Court as any
facts, bearing on the commission of the crime,
which reduce the moral
blameworthiness of the accused, as distinct from his legal
culpability. In this regard a trial Court has
to consider –
there are any facts which might be relevant to extenuation, such as
immaturity, intoxication or provocation (the list
such facts, in their cumulative effect, probably had a bearing on
the accused's state of mind in doing what he did;
such bearing was sufficiently appreciable to abate the moral
blameworthiness of the accused in doing what he did.
deciding (c) the trial Court exercises a moral judgment. If its
answer is yes, it expresses its opinion that there are extenuating
opinion having been expressed, the trial Judge has a discretion to be
exercised judicially on a consideration of all relevant
including the criminal record of the accused, to decide whether it
would be appropriate to take the drastically extreme step
him to forfeit his life; or whether some alternative, short of this
incomparably utter extreme, would sufficiently
satisfy the deterrent,
punitive and reformative aspects of sentence. The possibility of such
an alternative should be considered
by the trial Judge, in view of
the words "the court may impose any sentence other than the
death sentence" in the proviso
to sec, 330(1) of the Code (Our
Sec. 296(1)). And it should be weighted with the most anxious
deliberations, for it is, literally,
a matter of life and death.
Every relevant consideration should receive the most scrupulous care
and reasoned attention; and all
the more so because the sentence is
unalterable on appeal, save on an improper exercise of judicial
discretion, that is to say
unless the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate."
respectfully agree and it is on the basis of this definition that I
approach this matter.
for the law. I turn then to the facts of the case and I should
mention at the outset that the accused did not give evidence
this stage of the proceedings. The Court must then do its level best
to determine on a balance of probabilities from the
record as it
presently stands whether or not extenuating circumstances exist. This
is a moral judgment in which every relevant
consideration tending to
reduce the moral blameworthiness of the accused should be weighed
with scrupulous care.
received full submissions from both the Learned Director of Public
Prosecutions and Mr. Phoofolo for the accused on extenuating
circumstances. They both eloquently argued in favour of the existence
of extenuating circumstances on the authority of the case
& Others v Rex 1997 - 1998 Lesotho Law Reports and Legal Bulletin
168. In that case which involved the co-perpetrators
of the present
accused, the Court of Appeal found that extenuating circumstances
existed by virtue of the fact, inter alia, that
the accomplice and
the actual killer got scott free. The Court then felt that it would
be "unconscionable" were the accused
to be sentenced to
death where the actual killer who was described as cold blooded and
without conscience, did not hang. I respectfully
discern the need to
adopt the same approach as the Court of Appeal in the instant matter.
evidence before me points to great frustration amongst the employees
of the Banks including the accused. Indeed the Court of
considered this as an extenuating circumstance and observed in the
process that these employees were indeed unaccustomed
to the proper
utilisation of the new legislation dealing with labour relations
namely the Labour Code 1992. Once more I respectfully
approach of the Court of Appeal in the matter before me.
consider that the Defendant is an unsophisticated Mosotho man who
occupied a very junior rank in the hierarchy of the Union of
also considered the accused's plea of guilty as a sign of contrition
in the matter.
all of the aforegoing factors cumulatively I have come to the
that extenuating circumstances exist in this matter.
that this is the most difficult part of the trial particularly in the
special circumstances of this case. It is the task
of the Court to
ensure that the sentence fits the crime and in this regard the Court
must balance the interests of justice with
the personal circumstances
of the accused.
makes sentence particularly difficult in this case is that although
sentence is preeminently a matter for the discretion of
Court it is a salutary principle nonetheless for courts to strive for
some uniformity in sentences. In this regard it
is pertinent to
observe that the co-pepetrators of the present accused were sentenced
to an effective term of 16 years imprisonment
by the Court of Appeal
in Maliehe & Others v Rex (supra). This was on the 5th February
1997. It is useful even then to recall
that the starting point in the
view of the Court of Appeal was 20 years imprisonment which was
merely reduced because the accused
had been in custody since 1991.
The trial Court had sentenced the accused to death. That indeed is an
indication of how serious
the matter is. On the lenient side however
I shall bear in mind that extenuating circumstances having been found
to exist, this
Court is not bound to sentence the accused to death.
Indeed in terms of Section 297 (3) of the Criminal Procedure and
Act 1981 the High Court has a discretion to impose any
sentence other than death upon any person convicted before or by it
if it is of the opinion that there are extenuating
taken into account all that has been eloquently said by both the
Director of Public Prosecutions and the Defence attorney in
mitigation of sentence. They have both supported a more lenient
sentence than that imposed by the Court of Appeal. Indeed they have
both suggested 12 years imprisonment.
particular I have taken into account all the personal circumstances
of the accused as for example the fact that he is a first
means that it is the first time he has clashed with the law. He
deserves to be given an opportunity to reform. I shall
also bear in
mind that he is married with one minor child, a girl aged 6 years
old. He has elderly parents and is the sole bread-winner.
particularly been influenced by the accused's plea of guilty. There
is no doubt in my mind that this is a sign of remorse
contrition. The accused has saved the time of the Court.
the unlawful killing of a human being can never be justified, I have
considered the fact that the accused and his colleagues
legitimate grievance which does not seem to have been adequately
addressed. Reprehensible as the accused's conduct may have
taking the law into his own hands 1 think he deserves some measure of
factor that has weighed heavily in my mind in favour of the accused
is the fact that he has admittedly spent more than
six (6) years
awaiting trial in custody. He could not obtain bail because he had
apparently absconded to the Republic of South
Africa. He was
re-arrested in 1993 and has been in custody since. This indeed is a
sad state of affairs which may only bring the
justice system in this
country into disrepute. Indeed I have taken into account the fact
that the accused has spent a much longer
time in gaol awaiting his
trial than his co-
perpetrators in Maliehe's case.
other hand I should record at this stage that this Court believes in
the sanctity of human life and as such the unlawful
taking away of
human life deserves to be punished adequately as a deterrent to
others and for protection of the interests of members
of the public.
A signal needs to be sent out that it does not pay to take the law
into one's own hands and to eliminate people
perceived to be
unwanted. The deceased's family has lost its beloved one as a result
of this senseless killing.
aggravating factor in this matter is the fact that there is an
element of premeditation in which the deceased was eventually
execution-style. The sentence that this Court is about to impose is
equally aimed at discouraging this. Indeed this Court
legitimate grievances should be addressed through courts of law. That
is precisely what courts are there for.
the most appropriate sentence that I can think of in the particular
circumstances of this case is one of thirteen (13
and it is so ordered.
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