CRI/T/24/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

ALPHONSE
QABANG

JUDGMENT

Delivered
by the Hon. Acting Chief Justice, Mr Justice M.P. Mofokeng on 21st
day of September 1983

The
accused, Alphonse Qabang, is charged with the crime of murder. It
being alleged that on the 11th day of April, 1982, and at
or near
Mokhotlong Reserve in the district of Mokhotlong, he unlawfully and
intentionally killed one Lerata Lethole Lerata. He
pleaded guilty to
culpable homicide. But his plea was not accepted by the Crown.

There
have been a few admissions made. The doctor's evidence has been
admitted, and this is briefly to the following effect that
the cause
of death was due to shot wound injury. There were two wounds. They
were caused by a high velocity object. The entrance
was on the fourth
intercostal space on the right. The wound was .5 x 1cm. The outlet
wound was on the left side on the lateral
margin of the scapula. The
wound was opened about 2 cm around damaged tissue of about 5 cm.
There were no head injuries. There
was bleeding out of the nose after
examination of the chest.

Trooper
K'hesa deposed briefly that he lived with the accused, apparently at
the Police Quarters. They were in

2

this
house. He, Trooper K'hesa was cooking, while the accused lay on a
bed. The deceased arrived and pushed the door violently,
but the
lower portion was closed by the wooden device which closed it. The
deceased was pushed back.

The
accused is alleged to have uttered certain words to the deceased or
to the accused rather and said his home boys were used to
this sort
of practice. Whereupon the deceased said he had hot come to him but
he had come to Trooper K'hesa. There followed an
exchange of words.
The ultimate end of which was that there was a general commotion.
There the deceased carried two sticks, which
formed part of the large
exhibits before Court. However Trooper K'hesa intervened. The
deceased went to the house where he lived.
He soon came back.

During
the fight Trooper Makhele also tried to intervene and was knocked on
the knee. The deceased then passed on to his house.
When he came
back, he found Makhele seated on the ground, apparently nursing his
sore knee. However, Makhele saw that he was in
possession of a
revolver, Exhibit 2. He quickly snatched it out of his hand, but the
deceased, nevertheless, went towards the house
where the accused was.
As he approached, he was told not to go through the fence, or words
to that effect. But as he came nearer,
Trooper K'hesa was cooking. He
says that the next thing when he realised the accused wanted to hit
the deceased with a stick. He
tried to intervene. They went out, and
it was during this time when he heard the accused utter certain words
to the effect that
he could shoot the deceased, and the deceased said
"You mean you can shoot me with it?" and the accused
replied and said
"Now".

And I may
mention that before the deceased arrived the second time, he had said
openly, look I have also thrown away my sticks,
they have
dispossessed me of my firearm, I have thrown away the stones.
However, when Trooper K'hesa looked back, in the direction
of the
accused, to inquire what was happening, and saw Exhibit 1 .303 rifle,
accused pointed it at him and said "If you are
also In this
conspiracy, I will

3

shoot
you", or words to that effect. And (Trooper K'hesa says he ran
away. He was hardly behind the house when he heard the
sound of a
firearm. The accused ran away, in possession of Exhibit 1.

Lebohang
Leneha was approaching Trooper K'hesa's house. He saw three people
standing outside; the accused, K'hesa and the deceased.
The accused
was pointing Exhibit 1 at the deceased. He said he could shoot the
deceased. He, Leneha, turned to K'hesa to speak
to him. Then there
was a sound of a firearm. He ran away to raise an alarm. He saw the
accused run away carrying Exhibit 1.

The
evidence of the arrest of accused No.l as deposed to the preparatory
examination has been admitted. The accused now changes
his plea. In
the case of Rex v Bothata Clement Jonkoro CRI/T/17/82 delivered in
this Court on the 8th September 1983, this Court
stated the position
at this stage of the proceedings as follows, and I quote:

"However, at the end of the evidence, the accused changed his
plea from not guilty to one of guilty to culpable homicide,
Crown
Counsel has consented. This consent is not to be in writing in terms
of section 5(c) or section 6(i) of the Criminal Procedure
and
Evidence At 1981. Those sections refer specifically to the process of
discontinuing a prosecution, which is not the case here.
In the case
of Kutoane v Rex CRI/A/25/76 delivered by this Court on the 18th
June, 1976 the principle involved in the present situation
was stated
as follows : 'From the perusal of the record, it does not appear that
the learned magistrate either consented or refused
the offer of a
change of plea by the accused. Once the accused has pleaded, the
Attorney General has no power to accept, without
the consent by the
Court, a plea different from that already recorded. See R. v Komo
1947(2) SA 508 at 511. (and see also Rex v
Ralikhoho Aupa Pitso
CRI/T/1/83 delivered by this Court on the 12th day of September
1983). The Court has the power to allow a
change of plea".

In this
particular case, the Crown has neither consented nor indicated its
attitude towards this change of plea. However, the decision
rests
finally with the Court.

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It was
deposed by Trooper K'hesa in his evidence that both the accused and
the deceased were drunk. He had not been with the accused
that
morning. The accused came back after church services. He was very
evasive when he came to what it was meant by "after
services".
He said the deceased was more drunk than the accused. Whatever that
meant, his only criteria was that the deceased
was more
argumentative. But then immediately he qualified his statement by
saying, so was the accused because he got angrier and
angrier as time
went on. What he was not asked, was whether that was his nature, or
whether he became aggressive because of his
state of intoxication.
That question has been left wide open until the close of the Crown's
case.

Leneha
was truthful. He said he had no time to look at either the sobriety
or otherwise of these two people. When he arrived there,
a firearm
had been pointed at another person. I can imagine the atmosphere must
have been electrified. If he had been a liar, he
would have told me
that the accused was sober. We find it extremely difficult to say
whether or not the accused, or what quantity
or to what degree the
accused was drunk that day. But he wasn't as drunk as all that. We
will accept his plea, in the final analysis.

In
passing sentence in this case the Court will bear the following
factors in mind as being of paramount important (apart from what

counsel for the defence has submitted on his behalf).

The
society have a right to look to the members of the police force for
protection and for keeping law and order. It is thus for
the members
of that law enforcement authority to be exemplary at all times. They
are given very heavy responsibilities which they
are' expected to
discharge with honour and dignity. They are expected to obey the
instructions of their superiors at all times.
At all times they must
remain sober. The policeman holds of position of very high esteem in
the society. However, the accused

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through
drinking disgraced his colleagues and superiors. He disgraced the
very society which placed its entire trust in him. In
that act of
stupidity, foolishness and certainly aggravated by drinking he played
about with a weapon he has been taught, as a
policeman ought to know,
that a firearm is a lethal weapon if placed in the hands of an
inexperienced or incapacitated person.
The accused was the second
police officer to be convicted by this Court for having killed a
person with a firearm this very month.
Such acts are obviously
directed towards discrediting the police force in the eyes of the
public. The perpetrators of such acts
must be severely punished to
bring home to them and their colleagues that the Courts will never
tolerate such a situation.

Sentence
: 8 years imprisonment.

ACTING
CHIEF JUSTICE

21st
September 1983

For Crown
: Adv. Nku

For
Defence: Adv. Mlonzi