IN THE COURT OF
APPEAL OF LESOTHO
C of A (CRI)
the matter between :
Teliso Monaleli First
Mthimkhulu Second Appellant
6, 20 April 2005
convicted of murder with extenuating circumstances and robbery
appeal against convictions dismissed appellants
sentenced to 40
years imprisonment on each count sentences unusually lengthy
whilst there is no statutory or other limitation
as to the length of
a competent sentence, sentences in excess of 25 years should only be
imposed in exceptional circumstances.
The youth and immaturity of
the appellants as well as the fact that they are first offenders
militate against the imposition of sentences
in excess of 25 years
sentences disturbingly inappropriate - sentences on the murder count
reduced to 25 years and on the robbery
count to 7 years both
sentences to run concurrently.
 The two appellants were charged
and convicted on two counts; one of murder and a charge of robbery.
They were sentenced on each
count to 40 years imprisonment. The
sentences were ordered to run concurrently. They appeal both against
their convictions and
the sentences imposed on them.
essence their appeals are directed at the finding of the High Court
that they acted in concert. Indeed this finding of the
correct, is dispositive of their appeals against conviction. I say
this because it is common cause that one of the appellants
the deceased by firing shots at her. In evidence under oath each
appellant blamed the other for shooting and subsequently
deceased of M120.00. Each contended that the other had embarked on a
frolic of his own and that he was in no way responsible
conduct, being an innocent or, in the case of the second appellant,
allegedly a coerced bystander.
of the narrow ambit of the enquiry, the facts can be briefly
summarized as follows:
[3.1] The two appellants
crossed together into Lesotho from the town of Ficksburg in the
Republic of South Africa on the day in question.
They had done so
illegally, it seems by fording the river that delineates the border
with the R.S.A. near Maputsoe. The fact that
the bottoms of their
trousers and their shoes were observed by witnesses to be wet led to
this inference. They later visited the
home of the witness P.W.1
before entering the shop referred to below.
deceased was an assistant in a shop in the border town of Maputsoe in
the district of Leribe. On 25 June 1999 and in broad
shots were fired into her body by one of the appellants in the
presence of the other.
[3.3] The appellants were
observed by three witnesses as being involved in the murder of the
deceased. One witness, P.W.1, mistakenly
it would seem, places the
firearm in the hands of a person wearing a Bafana Bafana yellow
T-shirt, which it is common cause
was worn by the second appellant.
She was however in her house some distance from the scene. Two
eye-witnesses to the shooting,
one inside and one outside the shop,
positively identified the first appellant as the assassin. Their
evidence was preferred and
accepted by the court a quo and
there is no reason to question the acceptability of this finding.
only remaining issue is whether there is any reasonable possibility
that the second appellants version could be true; i.e.
that he was
coerced by the first appellant and was in no way associated with the
crimes. In my view there is none. The two appellants
into Lesotho from South Africa together. They had visited the
witness P.W.1 at her home together, and begged for food
from her. They left P.W.1 in one anothers company and were some
time later seen to enter the shop. A witness who was
shop, P.W.3, gave evidence of the shooting inside the shop. She says
they were standing next to one another and confronting
when the first appellant fired two shots into the body of the
deceased. They ran out of the shop together. Some shots
outside the shop by the first appellant and they re-entered the shop
together. Whilst they were both inside the store,
six more shots
were fired into the body of the deceased by the first appellant in
the presence of the second appellant.
 After this brutal and
excessive use of the firearm, the two appellants ran out of the shop
and fled back to South Africa where
they were found hiding together
in a toilet. The money stolen in the robbery was found in the
possession of one of them. The firearm
used in the shooting was,
according to the police evidence, found to be that of the second
appellant. This evidence was not challenged
on behalf of second
appellant. Indeed much of his evidence was never put in
cross-examination and it was correctly rejected by the
court a quo
as palpably untrue.
 The finding of the
court a quo that the two appellants acted in concert in
respect of both the murder and the robbery is, in the light of the
testimony, unassailable. The inference that the
two appellants associated with one another in pursuance of a common
is irresistible. They were in my opinion therefore
correctly convicted of both robbery and murder. Their appeals
verdicts is dismissed.
 The appellants have
noted an appeal also against their sentences of 40 years
imprisonment. These sentences were imposed by the
High Court after
it had found their youth to be an extenuating circumstance. (The
first appellant was 19 and the second appellant
18 years of age at
the time of the shooting.) The only question before us is whether in
the light of all the circumstances this
unusual lengthy sentence
imposed by the court a quo is disturbingly inappropriate.
 I say unusually
lengthy because sentences in excess of 25 years imprisonment have
been described as exceptionally long
and as only appropriate
in very exceptional circumstances. See S v Whitehead 1970
(4) SA 424 (A) at 438 F-H, S v Sibiya 1973 (2) SA 51 (A) and
the authorities collected in S v M. 1993 (2) SA 1 (A).
 There is no
legislative or other limitation imposed upon a court when determining
the length of a sentence to be imposed upon
an offender. In every
case the court must give due consideration to the triad of factors
that has to be evaluated i.e. the offence,
the offender and the
interest of the society (S v Zinn 1969 (2) SA 537(A) at 540).
The court has the task of balancing these divergent objectives and to
pass a sentence which accords
adequate weight to each.
murder of the deceased was certainly a brutal, indeed vicious crime.
The fact that the appellants went back into the store
and fired six
further shots into the body of the deceased elevates this offence
into one meriting a lengthy period of imprisonment.
this consideration is the fact that the appellants demonstrated no
remorse and steadfastly tried to blame each other.
 Both appellants were
young, as stated above, 19 and 18 years respectively when they
committed these two offences. The immaturity
of youthful offenders
has been regarded by Southern African courts as a factor which can
mitigate the gravity of a crime even
one of premeditated violence
resulting in the loss of life. This is the more so if it is coupled
with a limited exposure to education.
See in this regard the
majority judgment of this court in Thebe v R 1985 1989 LAC
33 at 49 51 and the authorities cited in support of the majority
decision. They are both first offenders and
whilst the deterrent and
retributive objectives of the punishment need to be recognized by the
imposition of a very lengthy period
of imprisonment, the reformative
and corrective impact of such a sentence would best be served by at
least leaving the door open
for them to return to society at some
realistic future date.
 The sentence of 40
years imprisonment on the second count is in any event clearly
excessive and needs to be radically reduced
so as to reflect the
appropriate degree of moral guilt of the appellants and we intend to
for the second appellant asked us to impose a lesser sentence on him
because he did not fire the shots that killed the
deceased. Had he
used the opportunity afforded by the second phase of the enquiry,
after the finding that extenuating circumstances
were present, and
had he given evidence which could have distinguished his moral guilt
from that of the first appellant, there may
have been merit in such a
contention. In the absence of such evidence we do not see any
`justification for distinguishing between
their respective degrees of
moral blameworthiness merely because the one pulled the trigger and
the other did not. On the evidence
before the court the second
appellant associated himself fully and extensively with the
commission of both crimes.
regard to all the factors and circumstances identified above, we have
concluded that a just sentence is the following:
1. Both appellants are sentenced to 25 years imprisonment on count
1 the charge of the murder of the deceased.
2. Both appellants are sentenced to 7 years imprisonment each on
the robbery charge i.e. count 2.
3. The sentences are ordered to run concurrently and are to take
effect from the date the appellants were arrested and detained in
custody in respect of these two offences.
 In the result the
appeal against the convictions of both the appellants is dismissed.
The appeal against the sentences imposed
are upheld to the extent set
JUDGE OF APPEAL
Maseru on this 20th day of April 2005.
Counsel for the first Appellant : Mr. T. Mpaka
Counsel for the second Appellant : Mr. K. Lesuthu
Counsel for the Crown : Miss H. Motinyane.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
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