C of A
(CRI) No. 4 of 2005

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

SEHLOHO
MONATSI 1st APPELLANT

POTJO
MAQALEHA 2nd APPELLANT

MONATSI
MONATSI 3RD APPELLANT

and

REX

Heard:
30th March 2007 Delivered: 4th April 2007

CORAM:
Steyn, P

Ramodibedi, JA

Grosskopf, JA

JUDGMENT

Steyn, P

[1] This
matter comes before us by way of a Stated Case submitted jointly by
the Crown and the three appellants.

[2] The
circumstances in which such a Stated Case was submitted is outlined
in the introductory comments of counsel which read as
follows:

2

-1-

"ln view of the fact that the record of the proceedings in this
case is allegedly missing and that the process of reconstructing
the
record would take a rather long time due to the practical
difficulties surrounding same, and also being alive to the need to

obviate the backlog of cases; coupled of course with the need for the
Appellants to know their fate, it has been agreed by both
the
Appellants' Counsel and the /Director of Public Prosecutions to make
a stated case in the matter, basing ourselves and/or relying
on the
text of the judgment delivered by the Court a quo in CRI/T/22/96. The
said judgment having been delivered on the 15th day
of December,
2004.

-2-

In
pursuance of the afore-mentioned agreement, it was further agreed
that the Appellants herein would no longer pursue their application

for bail pending appeal filed of record in this matter, and that
instead the appeal itself will be pursued, but only in so far
as the
question of sentence alone is concerned. To this end, a formal notice
of withdrawal of the said application will be filed
at the hearing
hereof.

-3-

On its
part the Crown has undertaken not to oppose the application for the
condonation of the late filing of the appeal in this
matter in terms
of Rule 15 (2) of the Court of Appeal Rules No. 182 of 2006. The
Respondent's view being that there appears to
be reasonable prospects
of success on appeal against sentence only."

[3] The
facts of the matter are succinctly summarized as follows:

"The
three (3) Appellants herein initially appeared jointly charged with
eight (8) others of two counts of murder in respect
of one PAKISO
LEOMA and EKETSANG LEOMA as well as two counts of assault with intent
to do grievous bodily harm. Before and during
the commencement of the
trial, some of the accused passed away and

1

two of
those remaining were discharged and acquitted at the close of the
Crown case, whilst the others, to the exclusion of the
present
Appellants, were acquitted and discharged at the close of the case on
both sides.

-5-

The
present Appellants were then convicted on the two counts of murder
and sentenced as follows:

'A1 - 25
years imprisonment - for both counts I and II A2 - 25 years
imprisonment - for both counts I and II A7 - 25 years imprisonment
-
for both counts I and II

The long
term imprisonment in respect of A1, A2 and A7 must start running from
1996'.

-6-

Be it
remembered that the events leading to the said trial took place in or
around the 26th November 1990.

-7-

The
events leading to this case as can be deduced from the judgment are
that the three Appellants herein were seen by a number of
witnesses
who knew them previously, notably PW1, PW2, PW3 and PW4 in the
company of a number of people, some of whom, including
the present
Appellants took part in the assault which led to the deaths of the
deceased in counts I and II.

-8-

Both
deceased persons met their deaths within a very short space of time
after the said assaults which were probably instigated
by the belief,
right or wrong that the deceased had robbed and/or broken into the
shop of the First Appellant herein and stole
there from some items of
property which they allegedly sold at the village of Khonofaneng.

4

-9-

As
indicated earlier on, although there was no medical evidence led, the
two deceased were seen by a number of witnesses in a very
bad state
of health whilst they were being carted from one place to another
during the assaults and succumbed to death shortly
thereafter."

[4] As
would appear from the terms of the Stated Case (the Case) this Court
has been asked to consider the propriety of the sentence
imposed by
the High Court. The appellants and the Crown were ad idem that the
sentence of 25 years imprisonment on each of the
appellants could not
stand. In this regard it was pointed out that the learned Judge when
passing sentence found that the three
appellants had killed the two
deceased with the direct intent to beat their victims to death and
that they were all three of them,
of a subjective state of mind
desiring the death of their victims. In the body of the judgment as
summarized in the headnote, her
findings for purposes of conviction
are recorded differently. These read as follows:

"3. All the accused must have been aware that the manner in
which they carried out the alleged assault upon the deceased,
with
the type of weapons they used, death was the likely result. They
deliberately or recklessly continued perpetrating the alleged
assault
regardless of the likely consequences."

5

This is a
finding of indirect intention or dolus eventualis. The joint
submission by the Crown and the defence Counsel supports
this view.
Their submission in this regard reads as follows:

-15

"It is our further respectful submission that the Court a-quo
seemed to have overlooked the pertinent fact that the said murders

were not premeditated but could possibly have been the result of an
improper and/or warped sense of justice, namely the apprehension
of
suspected culprits. Instead the Court a-quo seems to have hammered
home the fact that the First Appellant herein, and in defiance
of
authority, used his financial might to amass an army of vigilantes to
help him in apprehending the alleged suspects. It was
for this reason
that the Court a-quo wrongly, in our submission, found the Appellants
guilty of murder in the direct sense of dolus
directus.

-16-

The above-mentioned set of facts, cumulatively tend to lead us to the
conclusion that on the facts pertinent to this case, another
Court
would not have meted out the same sentence as the Court a-quo did."

It has
been held that the absence of premeditation and the absence of a
direct intention to kill, can, depending on the circumstances
of each
case, constitute an extenuating or mitigating circumstance. See in
this regard Letuka v Rex 1997-1998 LLR/LB 346 at p.361
and Tlali
Serine v Rex 1991-1992 LLR/LB 42 at p.45-46.

6

[5] Both
counsel also pointed out that the learned Judge, in back-dating the
sentence in the manner reflected in the Case cited
above, had applied
the wrong principle. Section 376 (2) (a) of the Criminal Procedure
and Evidence Act 1981 (the Act) provides
- insofar as relevant -
that:

"(2) .....when the accused -

1. is
   ultimately sentenced to imprisonment, the time during which he is
   released on bail shall be excluded in computing the term
   for which
   he is so sentenced..."

   
   

It is
common cause that all the three appellants were out on bail from the
time of their arrest until the date of their conviction
by the trial
court. No fault can be found with a court taking into account the
period of detention an accused person has undergone
whilst awaiting
trial. However, it is not proper, and indeed unlawful, to back-date a
sentence to allow the period of pre-trial
delay whilst out on bail to
be equated to a period of imprisonment. It would have the absurd
result of all three accused sentences
of imprisonment being reduced
because they were out on bail pending their trial. This was a patent
misdirection. It is clear that
the

7

Court a
quo intended each appellant to serve a sentence of 25 years
imprisonment. However, by back-dating the sentence to 1996 (without

stating whether it was January 1 or December 31), the court
effectively reduced their sentences by some 8 or 9 years. One can
only assume that the trial court had laboured under the misconception
that the Appellants had been in gaol from 1996 until the date
of
judgment; i.e. 14 December 2004. This Court was therefore obliged to
reconsider the sentences imposed by the High Court.

[6]
However, another misdirection occurred. In finding each of the
accused guilty the Court attributed various degrees of culpability
to
each one of the three appellants. She attributed a leadership role to
the 1st appellant. He was - according to the judgment
of the trial
court - a "powerful person .... able to recruit and command a
private army." The Judge a quo ascribes a
deliberate violation
of the law to this appellant and clearly attributed a high degree of
moral guilt to his conduct. A reading
of the judgment makes it clear
that the Court regarded the 1st appellant as

8

the
commander of "the army" and that he directed operations. He
instructed and incited his cohorts to assault the deceased
and he
himself participated in the violence he unleashed. He should
therefore receive a heavier sentence than the other appellants,

unless there were other aggravating features found to be present in
their conduct.

[7] Both
counsel agreed that the 2nd appellant was shown himself to have
participated in the assault. He was also the person who
reported a
burglary - which it would appear never occurred. His report set the
scene for the ugly events that followed. However,
he was the 1st
appellant's employee and performed duties as a night-watchman. He
acted on the unlawful instructions of the 1st
appellant. His proven
level of participation was certainly less than that of the 1st
appellant and the degree of his moral guilt
is also less. He should
therefore receive a lesser sentence than the 1st appellant.

9

[8]
Counsel were also both of the view that on the evidence before the
trial court, it could not be found that the 7th appellant
actively
participated in the assault on the two deceased. The high-water mark
of the case against him was that he associated himself
with the
pursuit and the assault on the deceased. His guilt within this
context is not challenged and he must be punished accordingly.

Clearly, however, his moral guilt cannot equate to that of his two
co-appellants. He must be sentenced for the misdeeds he committed,

not as if he himself participated in killing the two deceased or that
he played a prominent role in the affray.

[9] From
what I have said above, it is clear that the Court a quo erred in not
individualizing the punishment of each of the appellants.
It is
apparent from her judgment that the learned Judge was not only
indignant, but also greatly incensed at the merciless beating

inflicted on two innocent persons who needlessly and painfully
forfeited their lives. A court is entitled to express its indignation

at the brutal murder of innocent citizens. It must always however
remain dispassionate and must eschew all anger.

10

Corbett
JA, who later became one of the great Chief Justices of South Africa,
cautioned Judges who are entrusted with responsibility
for imposing
punishment on the guilty not to do so in anger.

[10] In S
v Rabie 1975 (4) SA 855 (A) at pp.865/866 he had this to say:

"In
his Commentary on the Pandects, 5.1.57, Voet writes of the need for
Judges to be free from hatred, friendship, anger, pity
and avarice.
In a note on this section in his Supplement to the Commentary
(published in 1973) Van der Linden makes interesting
reference to the
views of a number of writers, classical and otherwise, as to the
proper judicial attitude of mind towards punishment.
(A translation
of this particular note conveniently appears in the Selective Voet -
Gane's translation, vol. 2, at p. 72). The
note (quoting Gane's
translation) commences:

"It is true, as Cicero says in his work on Duties, bk. 1 ch. 25,
that anger should be especially kept down in punishing, because
he
who comes to punishment in wrath will never hold that middle course
which lies between the too much and the too little. It is
true also
that it would be desirable that they who hold the office of Judges
should be like the laws, which approach punishment
not in a spirit of
anger but in one of equity."

Van der
Linden further notes that among the most harmful faults of Judges is,
inter alia, a striving after severity (severitatis
affectation).
Apropos this, a passage is quoted from Seneca on Mercy, including the
declaration: "Severity I keep concealed,
mercy ever ready"
(severitatem abditam, clementiam in promptu habeo). Van der Linden

11

concludes
with a warning that misplaced pity (intempestiva misericordia) is
less to be censured.

Despite their antiquity these wise remarks contain much that is
relevant to contemporary circumstances. (They were referred to,
with
approval, in S v Zinn [2],at p. 541). A judicial officer should not
approach punishment in a spirit of anger because, being
human, that
will make it difficult for him to achieve that delicate balance
between the crime, the criminal and the interests of
society which
his task and the objects of punishment demand of him. Nor should he
strive after severity; nor on the other hand,
surrender to misplaced
pity. While not flinching from firmness, where firmness is called
for, he should approach his task with
a humane and compassionate
understanding of human frailties and the pressures of society which
contribute to criminality. It is
in the context of this attitude of
mind that I see mercy as an element in the determination of the
appropriate punishment in the
light of all the circumstances of the
particular case". (Italics added)

[11] A
reading of the highly emotionally charged judgment on sentence of the
learned Judge caused me grave concern at her approach
when passing
sentence. I respectfully suggest that she should have regard to the
above wise injunction. The fact that she proceeded
to impose
sentences which are manifestly unjust in respect of the 7th
appellant, whose proven criminal conduct was clearly nowhere
near as
reprehensible as that of the 1st appellant, is the best evidence that
the court, in its anger, failed to have regard to
the role each of
the appellants

12

played in
this tragedy when passing sentence. Sentences must be individualized;
only through a calm and dispassionate assessment
of the degree of
moral guilt of each accused can fairness and a just disposition be
achieved through the sentencing process.

[12] In
view of the various misdirections referred to above it is common
cause that this Court was not only entitled but also obliged
to
reassess the sentences of each of the appellants. Counsel jointly
suggested that a sentence of the order of 10 years would be

appropriate. I do not agree insofar as 1st appellant is concerned.
Even though it is clear that the injuries sustained by the victims

were not as severe as articulated by the court a quo when passing
sentence, they nevertheless constituted an extensive and prolonged

assault. The three accused thought - wrongly it would seem - that the
two deceased men had committed a burglary. However, the gross
over -
reaction to the situation and the persistence of the 1st appellant in
conducting the affray requires in my view the

13

imposition
of a sentence of at least 12 years imprisonment - the two counts
taken together for purposes of sentence.

[13]
Second appellant was an employee and his responsibility must be
diminished by his relationship with his employer. Nevertheless
his
willingness to carry out his employer's instructions including an
admitted assault on the deceased is indicative of the role
he played
in the events in question. Whilst therefore his moral guilt must be
assessed at a lower level than that of the 1st appellant,
his
punishment still requires the imposition of a long term of
imprisonment. I believe that a sentence of 8 years imprisonment
(the
two counts taken together for purposes of sentence) would be
appropriate in all the circumstances.

[14] The
7th appellant was a minor player in the fracas. In the case of
Molelle v Rex and Rex v Kaloko and Others c of A (CRI) No.12/2004

this Court had to deal with an accused who had, like the 3rd
appellant, played a minor, but nevertheless participative role in
an
armed insurrection. This Court sentenced him to an effective term of
4 years imprisonment.

14

Comparing
the relative degrees of moral guilt, I believe that there are such
similarities so as to render an imposition of the same
sentence
appropriate. A sentence of 4 years imprisonment (the two counts taken
together for purposes of sentence) is therefore
imposed on him.

[15] In
determining the sentences the Court has taken into account the fact
that the appellants believed they were dealing with
two persons who
had broken into premises and had committed a crime. Nevertheless, the
Court cannot permit people to take the law
into their own hands.

[16] In
the result the appeal against the sentences imposed on the three
appellants is upheld. The sentences of 25 years imprisonment
imposed
on each of the three of them is set aside. Instead thereof the
following sentences are imposed. The two counts are taken
together
for purposes of sentence.

1st
appellant 12 years imprisonment; 2nd appellant 8 years imprisonment;

15

3rd
appellant 4 years imprisonment.

These
sentences are to run from the date of their conviction; i.e. 15
December 2004.

[17] The
Court records its appreciation for the sensible and constructive
involvement of Mr. Thetsane and Mr. Nathane in these proceedings.
As
a result of their co-operative and helpful attitude they assisted the
Court in rectifying an injustice.

JH STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree:

MM
Ramodibedi

JUSTICE
OF APPEAL

I agree:

FH
Grosskopf

JUSTICE
OF APPEAL

Delivered
on the 4th day of April 2007

For the
Crown: Mr. L. Thetsane

For
Defence: Mr. H. Nathane