CRI/T/37/89

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

PHONDO
KHESUOE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai

on the
12th day of February, 1990

Held at
Butha-Buthe

The
accused person is before me on a charge of murder, it being alleged
that on or about the 10th day of August, 1988 and at or
near Thabang
in the district of Mokhotlong he unlawfully and inten­tionally
killed one Thabang Mfundisi.

When the
charge was put to him, the accused, who is represented by Mr. Fosa in
this case, pleaded guilty to culpable homicide. Mr.
Mokhobo for the
Crown, accepted the plea of guilty to culpable homicide tendered by
the accused person.

Section
240 (1)(a) of the Criminal Procedure and Evidence

Act,
1981 provides:

"240 (1) If a person charged with any offence before any court
pleads guilty to that offence or to an offence of which he
might be
found guilty on that charge, and the prosecutor accepts that plea the
court may -

(a) If it is the High Court, and the person has pleaded guilty to
any

2

offence other than murder, bring in a verdict without hearing any
evidence;"

As it has
already been indicated, the accused who is represented by a lawyer
has pleaded guilty to culpable Homicide which is an
offence of which
he may be convicted on a charge of murder. The Crown has accepted the
plea of guilty to culpable Homicide tendered
by the accused person.
In terms of the provisions of the above cited Section 240 (1)(a) of
the Criminal Procedure and Evidence
Act, 1981, I would, therefore,
convict the accused of culpable Homicide in accordance with his own
plea.

Both my
assessors agree.

SENTENCE
:

Coming
now to accused's sentence, the court has been invited to consider a
number of factors in mitigation. They have been eloquently
tabulated
by the defence counsel and there is no need for me to go over them
again. Surfice it to say, in addition I take into
account the fact
that in accordance with our custom, the deceased's relatives will, in
all probabilities, sue the accused civilly
to raise his head. In
other words, this court is only the first to punish the accused
person. There is still a civil court before
which he is likely to
appear for yet another punishment. To avoid the accusation that the
courts of law punish a person twice for
the same offence, I want to
make it clear that in imposing the sentence I am going to impose on
the accused I have taken into account
the fact that there is yet
another court which will, in all probabilities, punish him.

3

I am also concerned about what I have been told in mitigation viz.
that the relatives of the deceased want to retaliate on the
accused
person. Assuming the correctness of this, I am of the opinion that
there is the need to keep the accused away from the
relatives of the
deceased with the hope that by the time he returns to their midth
their tempers will have subsided.

Having considered on behalf of the accused person. all these factors
I am, however, not prepared to turn a blind eye to the offence
with
which he has been convicted. It is a serious offence calling for a
commensurately serious punishment - A punishment that will
deter the
accused and serve as a reminder to people of his mind that the courts
of law do not encourage people to take the law
into their own hands.
I am saying this mindful of what I have been told viz. that the
accused acted in self-defence. I agree that
the accused may have
initially tried to defend a woman who was apparently being molested
by the deceased. However, it seems the
accused got a chance to leave
the deceased and went to his house from where he returned armed with
a knife with which he stabbed
him. When he thus returned from his
house and stabbed the deceased, the accused was the aggressor and, in
my view, self-defence
could not avail him.

4

By and
large, I come to the conclusion that the appropriate sentence for the
accused person would be four (4) years imprisonment.
I accordingly
sentence him.

B.K.
MOLAI

JUDGE.

12th
February, 1990.

For Crown
: Mr. Mokhobo

For
Defence: Mr. Fosa.