CRI/T/15/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX -
Applicant

v

THABO
ISAAC MAPHALALA 1st Respondent

FELANG
MAKATSA 2nd Respondent

PUSELETSO
NYAKHANE 3rd Respondent

SENTENCE

Delivered
by the Hon. Mr. Justice M. P. Mofokeng on the 12th day of December.
1983

I shall
take into consideration what both Counsel have said.

I have
been requested, for the purpose of sentence, to equate this matter to
that of Rex v David Khesa & Another. CRI/T/14/83
(see judgment
dated 1st November, 1983) in which the two accused were escourting a
confessed thief to a place where he was going
to point out where the
stolen property was hidden. On the way he twice attempted to escape
but was on each occasion caught, he
was then assaulted and in trying
to avoid such assault he retreated and fell over a cliff on to a
stony surface. He sustained serious
head injuries and died almost
immediately. In that case the Court warned seriously against citizens
who took the law into their
hands. In their special circumstances
they were sentenced to pay a fine of M200.00 or in default

2

of
payment to undergo imprisonment for a period of four years.

In the
present case the chastisement on the deceased was spread over a long
period. He was beaten with sticks and a sjambok of ordinary
size but
the cumulative effect of such a beating was appreciated by the
accused. It was savage in the extreme. The deceased, during
the
process of this chastisement, fell at least three times. According to
the medical evidence, he died of subdural haemorrhage
and shock. In
the case of Rex v David Khesa & Another (supra) the period of
chastisement was very short indeed.

Once the
deceased had been arrested and there was the suspicion that he had
committed rape, he should have been marched to the Police
Charge
Office once it became obvious that the headman was inactive. After
all, that is what the first accused did the following
morning, he
went straight to the police.

Instead
of doing that they decided that they would arrest, put the deceased
on trial and pass judgment on him which resulted in
his death. That
type of justice cannot be countenanced by the Courts. It must be
dis­couraged by imposing suitable deterrent
sentence. Only the
Courts of law are authorised by law to deal with transgressors of the
law.

3

The
sentence of the Court and being lenient on each accused is one of
payment for a period of the sum of M1,000.00 or in default
of payment
to undergo imprisonment for a period of six (6) years.

Each will
pay immediately a sum of M200.00 before his release. The balance will
be at the rate of M100.00 per month each until it
is liquidated.

JUDGE

12th
December, 1983

For the
Crown : Mr. Kamalanathan

For the
1st Accused : Mr. Khauoe

For the
2nd & 3rd Accused. Mr. Matlhare