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CRI/A/99/90

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of;

'MATEBOHO
SEBAPALA Appellant

and

REX
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi Acting Judge on the 14th
day of April. 1994

This is
an appeal from the Magistrate Court of Thaba Tseka in its judgment of
the 21st September 1990. The Appellant had admitted
guilt to a lessor
charge of Assault Common having been originally charged with Culpable
Homicide, on the alleged negligent killing
of MOTHEENE TLAKE who died
on the 10th August 1989.

The
Prosecutor's outline of the facts of the Accused's statement in
mitigation and sentence does appear at page 1 and page 2 of
the
record as follows:-

"The evidence would show that on 9th August. 1989 the

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deceased Motheene Tlake fought with one Tsebetso and one Hopolang
Sebapala tried to stop the fight and pushed the deceased. Deceased

stopped fighting with Tsebetso and then fought Hopolang and injured
her teeth. Other children went to report to accused that the
deceased
fought against her daughter Hopolang, The deceased arrived at the
time others were making a report and accused went with
the deceased
into the house to ask him why he had assaulted her daughter.

They went into the house and accused thrashed her with the twig and
it broke after she ordered her to undress. Accused thereafter
called
one Noosi Mokhatsi to come and question deceased why he had assaulted
her child. He found accused undressed and a twig on
the floor that
showed that he had been thrashed. He asked him why he assaulted
accused's child and the deceased said she had pushed
her. Deceased
went to her home.

She reported to her mother that she did not feel well after she had
been lashed by accused. She spent the whole day unwell and
on the
following day she died. The body was sent to Mokhotlong on 14th
August, 1969 for post-mortem. The doctors findings were
that the
cause of death was not discovered by the doctor. The post-mortem
report is handed in as exhibit marked exhibit "A".
The
matter was reported to Thaba-Tseka police where accused was cautioned
and given a charge of murder. The twig was not discovered
and it is
not handed in as exhibit.

Accused accept facts as outlined by P.P.

Verdict;- Guilty of assault common. P.P.

Accused has no previous conviction.

In mitigation accused says:-

Accused is a woman, had no intention to assault the deceased. Extent
of assault very minimal, No injuries. were caused. She is
a first
offender. Her husband is crippled and she is a sole bread winner. She
has two young children to care for. She has already
been in custody
for two months, I pray that accused be cautioned and discharged in
terms of 319 of the C.P.&E.

Sentence:-

Accused is sentenced to M1,000.00 or 20 months imprisonment."

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It is
clear therefore that this involved a chastisement of the deceased by
the Appellant, The Appeal is on sentence. Mr, Tsotsi
submitted that:

1. The
   sentence was harsh in the circumstances.

   
   

2. The
   sentence did not appear to be consistent, uniform and equal to
   sentences of like circumstances.

   
   

I agree
with Mr. Tsotsi, Although some of the concepts he speaks of cannot be
measured with mathematical accuracy it is not always
difficult to
judge when like appears not to be treated alike. It is unfortunate
that the deceased died. The postmortem examination
was not able to
reveal the cause of death. It is most probably that it is this
occurrence or the fact of death of the deceased
that has influenced
the learned Magistrate in arriving at his sentence. One of the
questions would be whether the Accused would
be able to pay the fine
imposed.

Mr.
Qhomane wanted to persuade me that since sentence is eminently in the
discretion of the Magistrate I should have no cause for
disturbing
the sentence. I agree with the submission that sentence is in the
eminent discretion of the trial Magistrate. But it
must be exercised
judicially. One of the tenets of that judicial discretion is that he
must demonstrate his discretion by stating
reasons for his finding.
Both Counsel

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could not
avoid strongly suspecting that the sentence was primarily influenced
by there having been a death following the chastisement.
If ever the
Magistrate found that the chastisement was immoderate he did not
state it in his judgment. I do not find that it was
immoderate harsh
or severe. The Magistrate has not even told us that he has considered
the statement in mitigation including that
the Accused has no
previous convictions,

I have
already said the sentence induces a sense of shock and that it was a
misdirection that the Magistrate has not stated his
reasons for his
sentence. I have already made remarks about the latter aspect in REX
v SIMON PHALA MOKOALELI R/O 3/93.

For the
above reasons I would substitute the following sentence M300.00 or
three (3) months imprisonment.

T.
MONAPATHI

ACTING
JUDGE

For the
Appellant : Mr. Tsotsi

For the
Crown : Mr. Qhomane