C of A
(CRI) NO. 11 OF 2002
COURT OF APPEAL OF LESOTHO
KHALANYANE 1st Appellant
SEKONYELA 2nd Appellant
SEKONYELA 3rd Appellant
TSOENG 4th Appellant
KHALANYANE 5th Appellant
Law - Murder - whether Crown established that death due to
appellants' acts or omissions - appellants' contention that
from medical superintendent does not show that he was a duly
qualified medical practitioner and that report not capable
handed in under s 223 (7) of Criminal Procedure and Evidence Act 1981
- report as a whole clearly establishes that Medical
qualified medical practitioner - interpretation of post-mortem report
also in issue - cause of death properly proved
- death due to
appellants' conduct in detaining and assaulting deceased and
depriving him of food and liquid.
- insufficient ground for distinguishing between appellants'
participation in the crime - desirable, in particular
that they be treated equally - two of appellants over 70 - portion of
sentences suspended in respect of those appellants
who received more
delay of over seven years between date of alleged offence and
indictment - deplorable - incomplete record contrary
certification - inexcusable and potentially prejudicial.
five appellants were charged with the murder of Phallang Mokaeeane
("the deceased"). They pleaded not guilty before
and assessors in the High Court but were all convicted. The court
found extenuating circumstances and the appellants were
sentenced to imprisonment for ten years, save for the third appellant
(referred to as A2 in the court a quo) whose sentence
was one of six
Before dealing with the merits of the appeal there are certain
matters of importance that require comment. The first concerns
lengthy delay between the alleged commission of the offence - January
1994 - and the indictment of the appellants on 22 May
2001. The delay
of more than seven years has not been satisfactorily explained and it
is, to say the least, deplorable. Secondly,
the record was
incomplete: the depositions of three persons at the preparatory
examination were admitted as evidence at the trial
with the consent
of both counsel but did not form part of the record on appeal.
Fortunately this omission does not affect the outcome
on appeal. What
is more serious was the failure to annex to the record two crucial
- the report of the post-mortem examination on the deceased's body
and a report by the medical superintendent of Paray
contents of the reports were read into the record at the trial but
the failure to include copies of the originals
was a serious failure
that contradicts counsel for the Crown's certification that the
record was a correct copy of the proceedings.
In the event both
reports were handed to us at the appeal without objection by either
party's counsel but this does not excuse
their original omission from
is no dispute about the facts. The court a quo accepted the evidence
of the principal Crown witnesses and this finding
correctly, not challenged on appeal, especially as no evidence was
forthcoming from the appellants or any witnesses
on their behalf.
Counsel for the appellants limited his argument to a single
submission, viz. that the Crown had failed to establish
death of the deceased was caused by the appellants' acts or
omissions. Hence the significance of the aforesaid reports.
facts, therefore, can be stated briefly.
events giving rise to the charge took place in the area of Semenyana.
The appellants were members of a group known as the
Association, a voluntary association which, as its name proclaims,
concerns itself with the prevention of stock
theft. The first
appellant (Al in the court a quo) is the father of the fifth
appellant (A5 in the court a quo) and the second
appellant (A4 in the
court a quo) is the father of the third appellant (A2 in the court a
quo). The fourth appellant was designated
as A3 in the trial court.
Apparently stock theft in the Semenyana area had been rife for many
years before 1994 and as a result most of the appellants
substantial losses of stock, especially sheep. During 1993 a large
number of the first appellant's sheep were stolen.
suspected that the deceased and two of the Crown witnesses,
Chabasemona Khalanyane (P.W.3) and Marakong Khalanyane
responsible for the 1993 thefts. In order to extract confessions from
the suspects, or perhaps to punish them for
their assumed criminal
conduct, the appellants, during the early part of January 1994,
physically detained the deceased, P.W.3
and P.W.4 in a small hut
belonging to the first appellant. The hands of the victims were tied
and they were forced to lie on the
cement floor of the hut. During
their detention they were not given food or liquids by their captors
and they were systematically
hit with whips and sticks wielded by the
appellants. All of the appellants and some others who were not before
the trial court
took part in the beatings which occurred every day
with considerable severity. After about a week of being detained
circumstances the three detainees were taken by the
appellants to chief Abdullah Rantletse. On their way to the chiefs
second appellant struck the deceased with a stick on what
was described as the kidney region. As a result the deceased fell to
the ground. After this he was unable to walk and covered the rest of
the journey on a horse led by the first appellant.
chief refused to entertain the appellants' complaints against the
detainees as it was obvious that they had sustained severe
He directed that the appellants take them to a doctor for treatment.
They were, however, taken back to the first appellants'
hut but were
released the following day. Shortly after their release the police
arrived and took the
to the Paray Hospital at Thaba-Tseka where they were admitted to the
wards. P.W.3 and P.W.4 were subsequently discharged
treatment but the deceased died in the hospital two or three days
that resume , I turn to the medical evidence which consists entirely
of the two reports to which I referred earlier. Counsel
for the Crown
sought to hand in the reports to the trial court in terms of s 223
(7) of the Criminal Procedure and Evidence Act
1981. The appellants'
counsel raised no objection to the handing in of the post-mortem
report but submitted that the report from
the medical superintendent
of Paray Hospital did not identify the author as a duly qualified
medical practitioner. He accordingly
argued that the report was not
admissible under the section. Both reports were, however, admitted by
the trial court.
report from Paray Hospital is dated 31 January 1994 and is signed by
the medical superintendent, A. Siegwart. It reads:
"To whom it may concern
re: N'tate Phailang Mokaeane, 25 years from Semenanvana
I certify that I treated as a M.O. above mentioned patient at Paray
Hospital from 10.1.94 until he died on 13.1.94,2.30am.
He was admitted on 10.1.94, 11:30pm, and alleged to have been
assaulted on 3.1.94. He further alleged to have been kept as a
by his aggressors.
His general condition was fair and he was complaining about pain on
his buttocks. On 11.1.94 it turned out, that he hadn't passed
since he got assaulted.
My findings: 2 deeply and plain wounds with severe infection and much
nectrotic tissue on both buttocks, small abrasions everywhere
fracture of the 3rd finger left. I also assumed kidney failure. I
treated him with painkillers, antibiotics and local disinfectants.
His kidney didn't seem to recover. On 12.1.94 I did a debridement
(removal of infected and dead tissue). Despite that treatment
condition got worse and he died due to kidney failure on 13.1.94.
Kidney failure was caused by toxic substances from his necrotic
infected wounds and not having had enough liquid during his
Court the appellants' counsel submitted that the aforesaid report
should have been excluded as it does not appear ex facie
that Mr. Siegwart was a duly qualified medical practitioner. He
contended that a medical superintendent might be an
official with no medical training. It is correct that in the document
in issue there is no explicit statement that
Mr. Siegwart is a duly
qualified medical practitioner. This, however, is not a requirement
of the section. All that is required
in terms of S. 223 (7) is
sufficient evidence to satisfy the trial court that the signatory of
the report is a qualified practitioner.
The court may be so satisfied
from evidence dehors the document or from the contents of the report
as a whole.
the present case Mr. Siegwart describes himself as " a MO"
which, it is common cause, is an abbreviation for medical
Equally significant are the contents of the report from which it is
apparent that Mr. Siegwart carried out a physical
examination of the
patient, that he prescribed treatment and that he carried out a
surgical procedure in the form of a debridement.
It is inconceivable
that a mere administrative official would have provided such
treatment. What we have is a medical officer,
being the medical
superintendent of the hospital, who treated the deceased. The
cumulative effect of the aforegoing leads to the
note (9) the doctor again recorded that there were extensive wounds
to both buttocks and bruises to the deceased's face. It
clear, therefore, that he observed and had regard to the wounds to
the buttocks. The argument on the appellants' behalf
is based solely
on the word "and" between the paragraphs dealing with notes
(6) and (7). This word is part of the printed
form. The paragraphs
deal with different matters and the presence of the conjunctive word
between them does not reasonably convey
that the doctor did not do
what he was called upon to do - to furnish the cause of death based
solely on objective appearances.
There was also a submission that the doctor who performed the autopsy
should have removed the deceased's kidneys from his body
on their condition. This argument was based on the reference to
"assumed" kidney failure in the Paray Hospital
to the fact that the deceased was struck in the kidney region on his
way to chief Abdullah Rantletse. The medical practitioner
did not find it necessary to examine the deceased's kidneys: there is
no ground for assuming that his decision was wrong.
Nor is there
anything to indicate that kidney failure was due to a blow to the
body. The failure, according to the report, was
due to the necrotic
and infected wounds on the buttocks and to the absence of liquid
is quite clear that the deceased was brutally assaulted. His captors
beat him severely and failed to give him food and water.
He was in
such a weakened condition that he was unable to answer when his
father spoke to him on the way to chief Abdullah Rantletse.
received a blow to his back which contributed to his inability even
to walk. He ended up in
with infected and necrotic wounds that required surgical treatment.
He died within a few days of his admission. It is unnecessary
consider the precise mechanism that caused his demise: it is
sufficient to say that confinement on the floor of a small hut,
persistent violent assaults and the deprivation of liquids all played
their part in his eventual death. The appellants were, therefore,
question of sentence gives rise to some difficulty especially because
of the decision of the trial judge to treat the third
leniently than the others. The reason given for this was the judge's
"there was no indication that he played any special role that
would make him deserve the same punishment as the others."
of course, no need to impose the identical sentence on each
participant to the same crime. Each participant's individual
circumstances, including the degree of his participation must be
carefully considered. Nevertheless, where accused persons are
less equally associated in the commission of an offence and there are
no factors personal to each accused which suggest
the need for the
imposition of disparate sentences, a court of appeal may interfere
with the sentences where they are treated differently
(cf S v Moloi
1969 (4) SA 421 (A) at 424 & E-F). This seems to me to be such a
third appellant was actively involved in the detention of the
deceased. Indeed, according to P.W.4 the third appellant
was one of
who brought the deceased to the first appellant's hut. He played the
same part as the others in the persistent assaults.
He used a stick
to beat the deceased and there was nothing to indicate that his
degree of participation was less blameworthy than
that of the other
appellants. Nor are there any factors personal to the third appellant
that are of particular significance. He
is a relatively young man
and, like the other appellants, he has a clean record. And it may be
noted in this regard that the first
and second appellants are both
well over seventy years of age. All in all there seems to be no
compelling reason for treating the
other appellants more severely
than the third appellant.
course it does not follow that a court of appeal will inevitably
interfere when disparate sentences are imposed on different
for insufficient reason. Thus a court would not interfere where the
lesser sentence is regarded as inadequate or too light.
This is not
the position in the present matter. While there is no doubt that the
appellants treated the deceased with cruelty and
that the assaults
were persistent and premeditated, they did not intend to kill him.
They were convicted on the basis of dolus
eventualis, and rightly so.
Moreover they acted under the misguided belief that they had some
right or justification for harming
the deceased as they believed that
he had stolen the first appellant's sheep. In all the circumstances
of the case it seems reasonable
to reduce the sentences of the first,
second, fourth and fifth appellants by conditionally suspending four
years of their respective
sentences. By so doing their sentences will
not be too disproportionate to that imposed on the third appellant.
said that, however, I feel constrained to emphasize that it is not
open to members of the public to take the law into their
own hands by
imposing their own form
punishment on suspected miscreants. Lesotho is a constitutional
democracy. It is a country where the rights of individuals are
protected and where there are proper institutions and resources for
dealing with criminals.
following order is made:
appeals against the convictions are dismissed.
sentence of 6 years imprisonment on the third appellant is
sentences of 10 years imprisonment imposed on the other appellants
are set aside and replaced by the following: in respect
of each such
"Ten years imprisonment, four years of which are suspended for
five years on condition that the accused is not convicted of
offence involving an assault with intent to do grievous bodily harm
committed during the period of suspension."
at Maseru this 7th day of April 2004
Appellant : Mr. T. Mahlakeng
Respondent : Mr. M. Molokoane
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