CRI/T/144/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between: -

REX

and

MPHING
KAO

JUDGMENT

Delivered
by the Honourbale Madam Justice N. Majara on the 25th May 2007

The
accused in this matter appeared before me on a charge of murder it
being alleged that on or about the 24th June 2004 and at
or near
Bafali in the district of Mokhotlong, he unlawfully and intentionally
killed Teboho Mosoeu. The matter was set down for
hearing on the 2nd
May 2007 but accused failed to attend and after I was informed that
he was served with a notice of trial by
the investigating officer I
issued a warrant for his arrest. I then postponed the matter to the
22nd May 2007 for hearing.

1

On the
said date, the accused duly appeared before the Court. After the
indictment was read to him, he pleaded guilty to culpable
homicide
and Mr. Mahao who was representing the Crown accepted his plea in
this regard and proceeded to read into the record the
summary of the
evidence a copy of which he handed to the Court.

The facts
in brief are that on the 24th June 2004, the accused who is the
headman of his village fetched the accused from his home
at ha
Senkoase whereupon he tied him with a rope around his neck, made him
to walk bare-footed with nothing but a short sleeved
shirt and pair
of pants to Bafali in the middle of winter. Upon arrival at his home,
the accused tied the deceased to the roof
of his hut whereupon two
witnesses urged him to release him but the accused stubbornly
refused.

Further,
that this unfortunate incident was caused by a suspicion that the
deceased had stolen a wallet belonging to the accused
on a previous
occasion when he had been sent to fetch a sheep from the latter's
home. The deceased was a young boy of about fifteen
(15) years of age
and he reportedly died approximately thirty (30) minutes after
arrival at the accused's home. The accused untied
the rope from the
roof after being alerted by one Mohlouoa Mpeoa that the deceased was
dead.

2

According
to the post-mortem report which was handed in to form part of the
evidence, the cause of death was cervical fracture and
the doctor
also observed that the accused had rope marks on both arms and on the
neck.

After
considering the evidence my assessors and I returned a verdict of
culpable homicide as pleaded.

SENTENCE

In
passing sentence this Court has taken the following factors into
consideration:-

That on
the one hand, as stated by his Counsel Mr. Lesuthu, accused is a
first offender and he did not waste this Court's time by
pleading
guilty which is usually considered to be a sign of remorse. That he
acted under the belief that as the headman, he could
tie the deceased
up in the manner that he did. That, though his actions were brutal,
he did not go out of his way to beat up the
deceased and that the
evidence does not show that he had any intention to kill him. That he
is married and has seven (7) children
to parent and provide for.

On the
other hand, that as a headman of his village, the accused is not
above the law and is expected to set a good

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example
to his subjects and not perpetuate violence by resorting to self help
especially in such a reckless and barbaric manner
and to such a young
and defenceless boy. Further, that he should have been responsible
enough to have foreseen that his actions
might result in drastic
consequences such as occurred in casu.

In
addition, that this Court owes a duty to the deceased' family and
other members of the community at large, to censure violence
and
senseless taking of human life with impunity by passing the type of
sentence that will not only be exemplary, but will act
as a deterrent
to other offenders, especially those who have no respect for human
life.

Furthermore,
that everyone, more especially a person of the stature of a headman
has the duty to desist from subjecting others to
inhuman, degrading
treatment or punishment especially in this era where people's rights
including those of accused persons are
respected and protected at all
costs.

Lastly,
that this Court is wary not to send out the wrong message that people
can engage in criminal activities and trample all
over other's rights
and dignity, especially defenceless children such as the deceased in
this case, only to come and tender pleas
of guilty with the hope that
they will be allowed to escape punishment and go scot free.

4

Bearing
all these in mind, the accused is hereby sentence to pay a fine of
M2500. 00 or to Imprisonment for a period of three (3)
years in
default of payment.

My
Assessors agree.

N. MAJARA

JUDGE

For the
Crown : Mr. Mahao

For the
defence : Mr. K. Lesuthu

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