CRI/T/34/82

IN THE
HIGH COURT OF

In the
Matter of :

REX

v

TANKISO
TSIBELA

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 1st day of June, 1983.

The
accused appeared before me charged with murder in that on or about
28th June, 1982 and at or near Kao in the district of Butha-Buthe
he
unlawfully and intentionally killed Lefu Fane. He tendered a plea of
guilty of culpable homicide and Mr. Gwentshe who represented
him in
this matter informed the court that the plea was in accordance with
his instructions. Mr. Kabatsi, counsel for the crown,
accepted the
plea as tendered and it was accordingly entered.

In his
short summary of the facts of the case, counsel for the crown told
the court that the accused and the deceased were respectively
a
police trooper and a police volunteer reservist. The two men were the
best friends and both stationed at Kao police post in the
district of
Butha-Buthe. During the day, the accused and the deceased went for
drinks in a nearby village. On the evening of the
same day after they
had returned to their police post, they were in the same office when
accused unloaded his commando rifle in
order to check his bullets.

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After
counting the number of the bullets, accused negligently cocked the
rifle and pulled the trigger in order to make sure that
the bullet
chamber was empty. In so doing he did not, as one would have
expected, point the rifle upwards. The gun was, apparently,
not
completely emptied and it fired a bullet that hit the deceased who
was sitting on a chair in the office. The deceased was killed

instantly. The accused panicked and tried to creat a story that the
police post had been attacked by some unknown people with firearms

thereby killing the deceased in the process. He fired several bullets
in the police post in a mock defence of the post and even
radioed
Butha-Buthe police for assistance.

However,
investigations later revealed that the police post had not been
attacked by anyone and that the deceased had been shot
by the
accused.

A post
mortem examination which was subsequently performed on the deceased's
body revealed that the deceased had sustained a gun
shot wound
starting 3 cm from behind the right ear through the base of the skull
along the cerebellum and pons cerebre, the bullet
exiting through the
left eye. Death resulted instantly.

Following
the prosecution's acceptance of accused's plea of guilty to culpable
homicide, the provisions of sec. 240(1)(a) of the
Criminal Procedure
and Evidence Act 1981 were invoked and the accused was accordingly
convicted of culpable homicide on his own
plea without hearing any
evidence.

The
accused now stands before this Court to be sentenced. Mr. Gwentshe on
behalf of the accused has addressed the court in mitigation.
For the
benefit of the accused, he invited the Court to take into account the
fact that the accused won a first offender, he had
shown

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remorse
by confessing his guilt unequivocally and pleading guilty, he was a
friend of the deceased, he had been in the police force
for five (5)
years during which period he faithfully served this country without
blemish, since the occurrence of this unfortunate
incidence, the
accused had been under an interdiction without pay and there was
nothing but misery in his family, accused had taken
an oath to
maintain law and order but unfortunately on the day in question, he
had apparently imbibed too much liquor and, as Mr.
Gwentshe puts it,
his noble ideal of keeping law and order had rescinded into the
distant horizons.

I concede
that all the points referred to by the defence counsel in mitigation
have properly been raised for consideration in determing
what
sentence is appropriate for the accused. It must also be borne in
mind that in cases of this kind the relatives of the deceased
are,
almost invariably, likely to bring a civil suit against the accused
for compensation. If the Courts of Law were to avoid the
accusation
that they punish a person twice for the same wrong, the Court must
remember that it is probably the first and there
is yet another court
to visit the accused with punishment.

Nevertheless,
I am not prepared to turn a blind eye on the seriousness of the
offence with which the accused has been convicted.
Firearms are not
toys to play around with. They are deadly weapons which should never
be entrusted with drunkards and irresponsible
people. As a member of
the police force, the accused must have been trained in the
precautions of handling a firearm.

Notwithstanding
his training, the accused went for a drinking spree after which he
carelessly fiddled with a gun in a house where
there was clearly
another person. If he were not sure and wonted to check that the
bullet chamber was

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empty, a
sensible thing for the, accused to do was to go out of the house or
at least make certain that the gun was not pointing
at another person
in the house before pulling on the trigger. He should have known that
as a matter of precaution, it is often
said even the devil can load a
firearm -an emphasis that great care should always be taken in the
handling of firearms. Failure
to heed safety rules in the handling of
his firearm was, no doubt, negligence on the part of the accused. The
results were most
deplorable.

Members
of the Police Volunteer Reservists are responsible villegers who, in
reply to a call made by Order No. 33 of 1970, have
shown willingness
to assist the police in the detection and prevention of crime in this
country. It would be intolerable if negligent
people like the accused
were to expose their lives to unnecessary danger. There is,therefore,
the need to bring it home to the
accused and people of his mind that
negligent handling of firearms will,for obvious reasons,be always
discouraged by the Courts
of law;.

In the
result, I impose a sentence of M180 or 18 months imprisonment, half
of which is suspended for 3 years on condition that the
accused is
not convicted of any offence, involving violence on another person,
for which he is sentenced to a term of imprisonment
without an option
of a fine, during the period of suspension.

My
assessors agree.

B.K.
MOLAI

1st June,
1983

For the
Crown : Mr. Kabatsi

For the
Defence : Mr. Gwentshe