CRI/T/71/91

IN THE
HIGH C0URT OF LESOTH0

In the
matter between :

REX

v

MOTLALEPULA
MPHOSO

SENTENCE

Delivered
by the Honourable Mr. Justice T. Monapathi on the 28th day of
February 1995

The
Accused had been charged with the crime of murder. He admitted guilt
to the crime of Culpable Homicide. His plea was accepted
by the Crown
and this Court, after outlining the facts that would be led in
evidence.

I have
taken note of everything in that outline and in the address of the
Defence Counsel. Of importance I noted that the Accused
had been
extremely provoked. I mention that I have also taken note of the
Accused's personal circumstances, among others the community
to which
he belongs, and his age.

2

What gave
me and gentlemen assessors a bit of a problem was that the Accused
did not give evidence in mitigation. This we are not
blaming him for.
If you had gone into the witness box, there are a few things that we
should have been able to elicit from him,
because this outline by the
crown and the statements of your Counsel do not always say
everything. Of course, there are risks that
go with having to reveal
certain things under oath. That he may have wanted to avoid. But in
my view being candid to this Court
outweighs everything. It needs no
emphasis. This is so, because for example, we would have been able to
learn if there was drinking,
what time of the day and some such
aspects. And he would have been able to explain why this deceased
suffered this number of wounds
and how?

We have
noted that these number of wounds was inordinate. As a Court we would
close our eyes to that. It would be unfair in the
whole process. The
Accused has used a knife. If he gave evidence he would have been able
to tell us why he had to use a knife.
We are aware that there are
cases where one fatal stab wound is administered results in death.
But all that was necessary is an
explanation towards mitigation of
sentence.

3

This
Court has a duty to perform. It is a duty to punish people who have
committed offences, and the member of the public are here
to see
that, that actually happens. It is that people are punished for their
offences and the punishments that the Courts give
are not a joke.
They must be realistic. So that this Court also has a duty to the
relatives of the deceased in that they have lost
a relative. The
Accused is lucky. He is still alive. If he is sent to prison he will
still come back. But the deceased will not
come back. He is gone
forever. His relatives have lost him forever, He is lost to hi
community forever.

I accept
that it is correct that there is a modern trend not to send people to
prison. Because according to this trend there are
fears that a young
man as the Accused when he is sent to prison, he will meet with
hardened personalities. It would be that even
if the Accused went as
a good man who may have committed this offence by way of an accident
(so to speak), having met these characters
in prison he comes out
corrupt. This is so because he would have adopted the attitudes of
certain people, some of whom are hardened
criminals. This Court
accepts that this sometimes inevitably happens. But then this Court
is still

4

mindful
of that need I have earlier spoken about. This is, to impose
realistic punishments.

I have
taken note of the fact that the Accused has no previous convictions
and he is a first offender. He is a young man of twenty
six years of
age. He is a bread­winner. He has a younger brother. He has
pleaded guilty and has shown remorse. These indicates
to me that he
is prepared to co-operate with the machinery of justice in this
country. I have also taken note that it is some time
since he has
been brought before Courts and released on bail. He has appeared
before the Court most readily and he has abided by
the conditions of
his bail.

We note
that the use of a knife in fights is now prevalent. The Courts of law
are not happy with that trend. Now in a lighter note.
We remember
that in the old days there used to be this thing called "a fair
fight". In no way is this condoned. It was
a regulated fight
with fists and at times with sticks in the rural areas. This is no
more. People now fight to kill.

Having
said these, we have decided to impose on the Accused a very lenient
sentence which my assessor and I

5

agreed.
The sentence will bring home to Accused the impact of these
considerations I have outlined. I have decided to impose on
the
Accused a sentence of five (5) years without an option of a fine.

T.
MONAPATHI

JUDGE

For the
Crown : Mr. L. L. Thetsane

For the
Accused : Mr. E. H. Phoofolo

Assessors
: Mr. G. Ramoseme and Mr. T. Mopeli