IN THE HIGH COURT OF LESOTHO
In the matter between:
LEFASO RAMALITSE 1ST ACCUSED
LIAHO MANYOKOLE 2ND ACCUSED
TŠELISO WINTER RAMALITSE 3RD ACCUSED
TLALI MANYOKOLE 4TH ACCUSED
RAMONTŠI RAMOKONE 5TH ACCUSED
CORAM: Honourable Mahase J.
Date of Hearing: 21st May 2013
Date of Judgment: 24th May 2013
Criminal Law – Charge of murder – Accused tendering plea of guilty to culpable homicide.
Criminal Procedure and Evidence Act No.9 of 1981
 The accused who are aged between 20 and 28 years have been charged with having committed the crime of murder. They are alleged to have unlawfully and intentionally killed one Rampaleng Thebesoa on or about the 31st December 2010, at or near Ha-Tlali in the district of Maseru.
 On the day in question, one Teboho Thebesoa and three other boys were herding cattle at a certain place at Ha-Tlali area; when the accused arrived thereat and purported to impound the said cattle on the grounds that the cattle were unlawfully being grazed upon an area specifically set aside as a no grazing area (leboella).
 The accused then drove away the said cattle from there to their own village as same had been impounded. It is at this stage that the deceased and his companions approached the accused and prevented them from driving their cattle away.
 Consequently, there ensured a fierce fight between the accused and the other group of boys who were in the company of the deceased. The accused allegedly threw stones at the group of deceased and thereby hit the deceased with a stone.
 The deceased fell down after being hit with a stone. Realizing that the deceased had fallen down, his companions retreated leaving the deceased where he had fallen down. The accused then went to where the deceased had fallen down. They all then started to assault him with their sticks. It was the said Teboho Thebesoa who later came to the accused and intervened between him and his attackers.
 The deceased, it was later found out, had sustained two head injuries from the said brutal assault upon him by the accused. He was later on that same day taken to the Scott Hospital, where he was medically attended to. His wounds were sutured but he very unfortunately succumbed to the said injuries and passed on the 1st January 2011.
 A post mortem report which corroborates the other crown witnesses evidence as to the kind of injuries the deceased had sustained from the assault by his attackers shows that the deceased; who was aged 26years, indeed died as a result of head injury and the skull fracture.
 The accused have tendered a plea of guilty to a lesser offence of culpable homicide. The crown, which was represented by Adv. Tlali, then accepted the accuseds’ plea. This he did in terms of the provisions of section 240 of the Criminal Procedure and Evidence Act No.9 of 1981.
 Subsequently and in terms of the provisions of section 240 (1) (a) supra, the court brought a verdict of guilty to culpable homicide in respect of the said accused persons.
 One must indicate at this juncture that the facts in this case were of a common cause, so also was the fact that the weapons used in the commission of this offence were sticks. Unfortunately, though of no consequence, one of the said sticks has not been exhibited before court because it had gone missing from the Mokhalinyane Police Post where it had been kept. This is a common feature in our jurisdiction and in some cases it leads into miscarriage of Justice. This kind of phenomenon has to be attended to and a remedy found for it as a matter of urgency.
 This court was informed in mitigation of sentence that in fact all the accused had shown remorse and had in fact offered to raise the head of the deceased even long before they attended this trial. The accused are all first offenders and almost all of them are unemployed, with the exception of accused number four who is gainfully employed in the mines in the Republic of South Africa.
 Further on, with the exception of accused numbers 2 and 3, the rest of the accused are unmarried and that they herd their parents’ cattle, while A3 has recently been offered a temporary teaching job at one of the primary schools areas in that area. In short, all of the accused are of humble means but for their parents’ cattle. They were all cooperative with the police during the investigations of this case.
 The deceased, on the other hand, was a married man who has a child, aged; a girl aged five years. His wife is employed in the firms.
 The defence has accordingly prayed that in the circumstances of this case, and in imposing sentence, this court should bear in mind what has been submitted in mitigation of the accused, and that it should among others order the accused to raise the head of the deceased in the way and within a period that this court will see fit and proper. The defence then argued that the principles of restorative Justice be invoked by this court in the instant case in the exercise of its Judicial discretion in imposing the sentence upon the accused persons.
 The crown, on the other hand argued that while it does not strongly object to the above submissions tendered on behalf of the accused in mitigation, including the introduction of the restorative Justice Principles, this court should not loose sight of the fact that a person’s life has been permanently taken away much to the prejudice of the deceased’s family. That in fact, sanctity of human life should be inculcated in the minds of those people who never think twice about taking away other peoples lives. It argued further that, whether or not they are ordered to raise the head of the deceased, they should nonetheless be punished for their deeds.
 The crown further argued that in the event that this court could be persuaded to order the accused to raise the deceased’s head, that should be done within a specified period of time and for a specified quantum so that the court can be able to monitor that process. Reference was made to a similar order of this court in an earlier case of Rex v. Clement Sekonyela, CRI/T/70/2010 (unreported).
I note however that in the instant case, the court has not been informed about the participation or not of the families of the accused in the actual burial of the deceased such that it (court) has not been addressed on the issue of whether or not the accuseds’ families should also be ordered in addition to raising the head; to also refund or to contributing towards the payment of burial expenses incurred by the deceased’s family. This court will therefore decline from pronouncing itself on this issue except to say that the deceased’s family are at large to pursue this issue at other appropriate courts.
 It is trite law that in a case where the crown and the defence have argeed to invoke the provisions of section 240 of the Criminal Procedure and Evidence Act (supra) a court before which that case is prosecuted will not normally refuse to accept that plea bargain. The instant case is no exception.
 However, and also trite law, is the fact that sentencing is the prerogative of the court which is mandated by law to exercise its discretion judiciously in imposing a sentence where there is such need for it so do so. Of course certain factors have to be taken into account in the execution of a court’s duty in this regard. Some such factors are, (to mention but a few) the ability of the accused to pay a fine or an ability to raise it; prevalence of the kind of crime which the accused has committed either throughout the country and or within a specified, or limited area, the restitution undertaken by a wrongdoer, remorse shown by a wrongdoer and of course some other related circumstances.
 In the instant case, it was indicated to this court that in fact, the accused had all along since the occurrence of this incident been willing and prepared to raise the head of the deceased earlier but for certain unnamed circumstances which were then prevailing in the village.
 Before this court, the crown has not challenged the suggestion that among others, the accused be ordered to raise the head of the deceased by way of compensating the deseased’s family for that permanent loss occasioned by that family as a result of their fatal assault upon the deceased. Of caurse it was correctly argued by the crown that the accuseds’ youthfulness, their remorse etc should not influence this court and or not blind the Judgment of this court and let them go unpunished for this fatal assault upon the deceased.
 This court is alive to all the principles of the Law so ably articulated by and on behalf of the crown and the defence in support of and against their respective cases. There is no doubt in the mind of this court that indeed even without having entered the plea to a lesson offence, the offence which had actually been committed is that of culpable homicide; there being no premeditation by any of the accused to kill the deceased.
 This brings me to deal with issues pertaining to an appropriate sentence to be imposed upon the accused. Having carefully considered submissions made on behalf of the accused, and by the crown in this case, it is the considered view of this court that indeed the accused have to be appropriately punished for the offence they have committed bearing in mind in particular that life is a sacred God-given gift which should not be lightly taken away by anybody; for whatever reasons.
 In the premises and in balancing the interests of society and those of the offenders; it is the considered view of this court that a sentence of four (4) years imprisonment upon each of the accused will meet the Justice of this case. The said sentence is however, wholly suspended for a period of three years on condition that none of the accused commits an offence of a similar nature within that period.
 As has been indicated above, the accused persons have offered to raise the head of the deceased as a way of showing remorse and so as to compensate the deceased’s family. The crown has no objection to the said offer for as long as the offer will be complied with within six months from date of judgment. No objection was raised by the defence in this regard. There being an agreement thereto, and also the court being convinced that the accused have the means, by way of their parents’ cattle, they are each ordered through their parents to raise the deceased’s head by each paying two herd of cattle to the deceased’s wife within six months from the date of judgment. Of course no amount of money or whatever compensation or restitution payable to the deceased’s family will ever bring back to life the deceased.
Both counsel are to report to this court on progress in this regard and it is the view of this court that parties herein viz: the accused persons and the deceased’s family will work together and follow lawful channels to have this restitution order implemented.
The sticks, exhibits herein should be lawfully disposed off by the police.
For Accused: Adv. N. Hlalele
For Crown: Adv. T. Tlali
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