CRI/T/2/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MEKHOA
MOLULELA

MOLELEKI
MOLULELA

THABANG
MOLULELA

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 11th day of November,
1982.

The
accused were charged with the murder of one Ramakhobotle. They
pleaded not guilty.

The Crown
led the evidence of Dr. Mphu Ramatlapeng who conducted an autopsy on
the dead body of Ramakhobotle (hereinafter referred
to as the
deceased). She reduced her findings to writing. She deposed that the
cause of death was due to excessive haemorrhage
and subdural
haemorrhage. These were due to. multiple injuries on the head, scalp
fracture, fracture of frontal sinus, wound on
right flank abdomen
penetrating into the abdominal cavity, wound on left side of chest
penetrating into the abdominal cavity, wound
and pierced the
ventricle (left), the left lung collapsed. She said the wounds or
injuries on the chest, abdomen were caused by
a sharp instrument and
those on the head and related areas by a blunt instrument. The
assault was savage in her opinion

The
mother of accused 1 and 2 and a very close

2

relation
of accused 3, gave evidence next. She told the Court that she had
recently fallen in love with the deceased. Her own husband
was alive
but was away in the mines and only came home when his contract with
the mines expired. She said all three accused live
with her. The
deceased had paid her "visits" three times and each time he
left the following day after sunrise. She was
adamant that the
villagers and her sons (she has a married son living in the same
village) and not know about this illicit love
affair. On the fourth
occasion he visited, while they were actually having sexual
intercourse with the deceased, the three accused
came into house. She
says they had knocked at the unlocked door and she actually told them
to come inside. Finding the deceased
in these circumst­ances,
they told him to leave the house He dressed up and left

Hardly a
week later, the deceased was again surprised inside the house, in the
very act, with the mother. The accused told him to
leave as their
father was not at home but at the mines. The deceased, for reasons
better known to him, told the accused he had
visited their mother.
The accused were angry that night. Their mother says for that reason
she looked at them and saw no weapons
with them. They went.
Immediately the deceased "went after them." she said, she
then heard the sound of sticks clashing
as when men fight or play
with sticks. She vent out. Further away from her house, about ten
paces she pointed, she hazely saw figures
of people who appeared to
be fighting.

She
approached. She asked her sons to leave the deceased alone. They
ignored her. She did not scream nor

3

raise an
alarm No other villagers came. She saw them leave and a person had
fallen. She went nearer. Indeed, it was the deceased.
She went back
to her house. She heard the following day about the death of her
lover.

When the
Crown was about to call another Crown witness Mr. Matlhare, on behalf
of the accused, made an application for a change
of plea to one of
culpable homicide. The matter being in the hands of the Courts since
issue had been joined between the Crown
and the accused, the Court
made it quite clear that it had the sole discretion in the matter.
But as a matter of practice (and
a well-established one at that) the
Court wished to know the attitude of the Crown. Needless to say (and
for reasons the Court
cannot divulge here) it was welcomed with both
hands. The Court was, in fact, not surprised. However, after a brief
adjournment,
the Court, with the agreement of the assessors agreed to
a change of plea. There were good grounds.

The plea
of guilty by the accused to the crime of culpable homicide means that
they admit that they, through negligence, caused
the injuries which
the medical doctor has deposed to. They agree, therefore, that
whatever blunt instruments were used to cause
injury on the head and
nearby areas they were in their possession, including sharp
instruments which in the doctor's opinion cause
injuries on the chest
and abdomen. It v?s dark where the assault took place so they could
not have picked the sharp instrument(s)
on the around.

In his
address to the Court Mr. Matlhare suggested that the Court could not
refer to the record of the Preparatory Examination as
that evidence
was not before

4

Court
With respect, the Court thinks he has missed the boat. That record is
to inform the Court and the accused about the nature
of the evidence
the latter is to face. The position as I see it, is simply as
follows. The accused has now pleaded guilty and that
plea is a
judicial confession Since this is not a summary trial, the Court is
aware of the full facts from the record of the preparatory

examination. It is true that a plea of guilty is not an admission of
the facts stated in the depositions and yet this Court can
pass
sentence without hearing any evidence (See R. v. Fouche, 1958(3) S A.
767 at 774).

Now the
reason why evidence is not required when an accused pleads guilty
before the High Court is based on a very simple principle
and that
principle is this As a reneral rule, no criminal charge will ever be
preferred against an accused person, in the High
Court, unless a
preparatory examination shall have been first held and the accused
committed for trial, by the High Court, by the
judicial officer
conducting the preparatory examination In terms of section 78(1) he
can only commit the accused for trial "whenever
there appears
sufficient reason" that is, a prima facie case for the
commission of the offence has been made out by the evidence
led. The
Director of Public Prosecutions voule similarly not indict an accused
in the High Court unless there existed prima facie
evidence of The
commision of the offence on the preparatory examination record (See S
v K and Another, 1964(2) S A 539 at 540(T),
Section 294(3)(b) or the
Act ( supra))

That
principle is again enshrined in the procedure followed in applying
sections 79(3) and 240(1) respectively In the former, at
the close of
a preparetory examination are

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an
accused having been committed for sentence before the High Court if
he pleads guilty again before that Court ho is dealt with
in the same
manner. In the latter case, where an accused pleads guilty before the
High Court, he may be sentenced without hearing
any evidence The
judge is expected to have satisfied himself that in fact accused is
guilty from the perusal of the preparatory
examination, and should he
find that it is not so, he will order evidence to be led (C/F Rex v
Filer, 1927 T P.D 667 at 670) It
is therefore correct, in my view to
say that where there is a preparatory examination record and the
accused pleads guilty, the
judge is entitled to refer to the
preparatory examination in order to satisfy himself as to whether a
proper and just decision
has been arrived at and generally to inform
itself on other matters of interest. (Rex v Filer,) (supra). A
criminal trial, moreover,
has been said, in the most often -quoted
case of Rex v Hepworth, 1928 A D. 205, is not a game and that the
trial judge is not an
umpire to see that the rules of the game are
observed. He is to arrive at a just decision and when he has to pass
sentence, he
is possessed of enormous powers in terms of section
295(2) which reads, in part.

"295(2)

The Court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself ....."

This
power, in my humble view is so enormous that it permits the Court to
use the preparatory examination record to inform itself
as to a
proper and a just decision to arrive at, Although Mr. Mathare was in
the legal sense partially correct yet there was some
fallacy in his
argument if it meant that the Court could be held at ransom by the
defence by limiting its area of activity to the

6

evidence
of the witnesses whose had given viva voce evidence and should not
look at the record of preparatory examination. Needless
to spy, this
would be a beautiful device contrived by the defence to have the
accused get out scot free. That would be a traversity
of justice.

In our
law provocation has been given a very generous definition S 4 of the
Criminal Law (Homicide Amendment)

Proclamation
defines provocation as follows

1. The
   word 'Provocation' means and includes; except as hereinafter stated,
   any wrongful act or insult of such a nature as to be
   likely, when
   done or offered to en ordinary person or in the presence of an
   ordinary person to another person who is under his
   immediate cere of
   to whom he stands in conjugal, parental, filial or fraternal
   relation or in the relation of master or servant,
   to deprive him of
   the power of self-control and to induce him to assault the person by
   whom the act or insult is done or offered.

   
   

2. For
   the purposes of this section the expression 'an ordinary person'
   means on ordinary person of the class of the community to
   which the
   accused belongs

   
   

3. Where
   such an act or insult is done or offered by one person to another
   or, in the presence of another to a person who is under
   the
   immediate are of that other or to whom the latter stands in any such
   relation as aforesaid, the former is said to give the
   latter
   provocation for an assault

   
   

The
situation of the accused is akin to (c) or can find accommodation
under that sub-section

The
position in this case is rather unique in the sense that so
ethin-contrary to Sesotho Cusion has occured namely that children
of
the age of the accused should ever care enter their x slepping but.
My assessor advice me that it is never done and I have never
heard of
a similar situation before Be that as it may, the position of the
accused is aptly summarised by the following passage

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from the
judgment of Rooney, J until recently on the bench of this Court, thus

"The Sesotho family law is finely balanced between different
interests Within the system each man and woman is aware of his
rights
and obligations and their importance. A man's standing within his
family may often depend upon his assertion of his customary
rights
and the acceptance of his customary obligations. The man who defied
established custom challenges all those who are affected
by his
actions The normal process for the settlement of disputes include a
resort to the Court. But, where this goes not provide
immediate and
salutary correction of an abuse of customary law the tension created
may often lead to violence." (Rex v Mothebe,
1981(1) L L R 86 at
92). I entirely agree.

I hope
thus will put paid to Mr, Matlhare's argument that play Sesotho
custom has no part to play in the development of our Criminal
Law.
Well the Legislature has been wise enough to allow assessors to
assist the judges. In any event, the law empowers the Courts
before
passing sentence, to call any evidence which can be of assistance to
it in arriving at a just decision

The
accused are still young They have no previous convictions, I take
into consideration the passionate plea of their counsel. He
said
everything, in my view, that could possibly be said. In the final
analysis, however, they have killed a fellow human being
The Court
has shown that they were wronged but Courts do not encourage the
principle of self-help It is one of the pillars of the
Pule of law
that there shall be no self-help This runs lile a silver thread in
all countries where the Rule of law still exist

Accused 1
was twenty-one (21) years old at the commision of this crime Accused
2 was 17 years and accused 3 was 18 years They have
committed a
particularly bad type of culpable homicide They will be punished

8

Accused 2
and 3 could receive corporal punishment but this Court does not
believe that it has any remedial or corrective effect
It produces
contra results.

Accused 1
is sentenced as follows Five (5) years' imprisonment two (2) years of
which are suspended for a period of two years on
condition that
during the said period of suspension he is not found guilty of the
crime of assault for which the fine exceeds fifty
Maluti (M50 00)

accused 2
is sentenced as follows Two years' imprisonment the whole of which is
suspended for a period of one year on condition
that during the said
period of suspension he is not convicted of assault end the fine
exceeds Fifty Maluti (M50.00).

Accused 3
is not a brother to his co-accused His position in the Molulela
family would have been in jeopardy if he did not join
the accused in
this venture It is the Court's belief that this was the position that
evening He merely obeyed the commands given
to him and although he
could have refused, he found it difficult to do so However, he is
older then accused 2 In his case the sentence
will be extremely
lenient in the sence that he will not be sent to prison But the
sentence will he sufficiently severe to beter
him from taking
another's life as if it does not matter His sentence is

"3 years' imprisonment the whole of which is suspended for a
period of two years on condition that during the said period
be is
not convicted of an offence involving violence to the person of
another are the fine exceeds an amount of M50 00"

My
assessors unanimously agree

JUDGE

11
November 1980

For the
Crown miss Suite

For the
Defence in