IN THE HIGH COURT OF LESOTHO In the
PUBLIC PROSECUTOR APPELLANT
'MUSO TSATSI 1ST RESPONDENT
SELEMO TS'OSANE 2ND RESPONDENT
THABO MAKUKA 3RD RESPONDENT
TEBOHO TSATSANE 4TH RESPONDENT
MPITI MOLIBETSANE 5TH RESPONDENT
MOKOENA SEBAKA 6TH RESPONDENT
Delivered by the Honourable Chief Justice Mr JusticeJ.L. Kheola on the 6th day of November, 1995
This is an appeal by the Crown against the sentence
imposed by the Subordinate Court for the district of Butha Buthe. The
alleges that upon or about the 4th day of December, 1994
and at or near Tsime in the district of Butha Buthe the said accused
unlawfully and intentionally and with intent to injure 'Mateboho
Monnanyane in her property, set on fire and thereby damage a certain
house, being the immovable property of the said Mateboho.
All the appellants pleaded guilty to the charge. In
terms of section 240 (1) (b) of the Criminal Procedure and Evidence
1981 the Public Prosecutor stated the facts disclosed by
the evidence in his possession. The appellants admitted the facts.
convicted and eventually sentenced to "a caution and
The facts of the case were stated as follows:
"On 4-12-94 at Tsime in Butha Buthe at about
10.00p.m. these accused were from a certain place driving back home
the cattle that
had been stolen. villagers were very glad to have the
animals back to their owners. The song was sung and people going up
in jubilation. Then a gun sounded from the direction of the
complainant's house. All these five (5) accused rushed there. The
plus others are united to fight stock theft in their area.
On arrival they surrounded complainant's house and no
one had been injured. They went there mainly because any time animals
stolen prior to this occasion the suspicion had been that it
was due to strangers who had been accommodated at 'Mateboho's house.
They did ask complainant to open the house since gun had sounded from
its direction. 'Mateboho who had not joined
happy people that stolen animals had been recovered
refused to open the door. Then the house was set on fire and
was damaged. All the occupants of the house were
safe since they were led to escape. The incident was then reported to
Police who apprehended these accused who admitted to
have burnt the said house. They were all cautioned and charged".
The Crown is now appealing to this Court on sentence
only on the ground that the sentence of a caution and discharge is
too lenient when it is taken into account that the accused
had no right to punish the complainant for the crime she did not
I wish to quote the words of Chief Justice Innes in the
case of Rex v. Mapumulo and others, 1920 A.D. 56 at p. 57 where the
Chief Justice said.
"We have therefore the authority to amend sentences
passed by the Native High Court; but as pointed out in Rex v.
A.D., p.267), it is a power which we should be very
cautious in exercising. The infliction of punishment is preeminently
of the discretion of the trial Court.
It can better appreciate the atmosphere of the case and
can better estimate the circumstances of the locality and the need
for a heavy
or light sentence than an appellate tribunal. And we
should be slow to interfere with its discretion."
Unfortunately in the present case the court a quo did
not give any reasons for sentence. However the mitigating factors are
from the summary of the facts stated by the Public Prosecutor
and from the plea in mitigation by the appellants. One of the factors
is that the complainant and her relatives had been harbouring stock
thieves who stole the animals belonging to complainant's
On the day the house of the complainant was set on fire
the appellants and other villages had recovered some of their stock
had been stolen. They were driving the animals into the village
and singing in jubilation. All of a sudden there were three gun
directed to them from the direction of the house of the
complainant. The appellants lost their self control and surrounded
of the complainant. They ordered her to open the door. She
refused to do so because it was obvious that the mob would hurt her.
house was set on fire but no stock thieves were found in the
The mitigating circumstances mentioned above have some
substance in them. I do not mean that appellants were entitled
to take the law. into their own hands. In any case the
complainant or her husband still have a civil claim for the damages
he suffered at the hands of the appellants.
Under the circumstances of this case I feel very
hesitant to interfere with the sentence imposed by the court a quo.
was not so grossly lenient that I can interfere with it
In the result the appeal is dismissed.
J.L. KHEOLA CHIEF JUSTICE
6th November, 1995.
For Crown - Miss Nku For Appellants - Mr. Mohau
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