CRI/A/36-38/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

PHAKISO
MOTEPE

TSELISO
MOTHIBELI

TAU
MOTHAE

V

REX

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice Mr. Justice T.S. Cotran on the 14th day of
September 1984

On the
4th September 1984 I dismissed the appeal against the conviction of
all the three appellants. The sentence of 18 months imposed
on the
1st appellant wad reduced to 12 months. The sentence of 12 months
imposed on the 2nd appellant was confirmed. The sentence
of 6 strokes
imposed on the 3rd appellant was confirmed but subject to a medical
officer certifying that 3rd appellant is fit to
withstand the
punishment.

I said
written reasons will be filed later and these now follow.

The three
appellants (together with three others) were charged and convicted of
unlawfully killing Lira Mabaleha (the deceased)
who was suspected of
having been involved in theft of some sheep. The upshot of this
suspicion was that the deceased was seized
from his cattle post
initially by the three appellants and marched for one day and one
night to be dealt with according to law.
This was the deceased's last
journey on earth because he died the following day from intracranial
haemorrhage. He had multiple
abrasions and bruises over the chest
arms and thighs. The three appellants were joined by several persons
(apart from three who
were charged with them) and the evidence is
that jungle law took over and no one of

2

these
erstwhile people paused to think that the deceased might not reach
his destination alive if he was to be continuously beaten.
Each of
the three appellants was seen assaulting the deceased at one time or
the other. There was no evidence as to who of the
appellants (or
indeed of the others charged with them) inflicted the fatal blow or
blows.

There
were two grounds of appeal, viz,

1. That
   the appellants were not sufficiently identified.

   
   

2. That
   there was no proof of "common purpose" (amongst the
   appellants and other accused persons) to cause the deceased's
   death
   by unlawful means.

   
   

The first
ground depended on the trial magistrate's view of the witnesses
credibility on this point. An appellate Court will not
readily
interfere when there are favourable conditions that make
identification possible bearing in mind that some witnesses may
be
honest but mistaken. Here the conditions were most favourable not
only because the incident took place during the day but also
because
it occurred throughout the day and it was the kind of crime where
concealment of its occurrence was not on the mind of
its perpetrators
at all. Many people unfortunately believe that they are entitled, if
not to kill a thief, at least to punish him,
not caring whether or
not the authorities will prosecute -indeed, many believe that there
will be no grounds for prosecution and
there is therefore no effort
to hide their identity. The appellants decided to keep silent.

The only
thing that I need say on the second ground of appeal is that the
essence of the crime of culpable homicide is the unlawful
causing of
a person's death. Gross negligence brings home the crime. Common
purpose can arise at the spur of the moment. I do not
think the
appellants, subjectively speaking, wanted their victim to die, at any
rate evidence on

3

this
point is lacking, but they were all so grossly negligent in not
foreseeing that a number of assaults (though individually may
not
have been severe) when inflicted collectively by a number of persons
over a period of time, that death might occur from sheer
exposure and
exhaustion and guilt of the crime is established.

As I
intimated earlier the appeal against conviction has been dismissed.

The
magistrate gave no reasons why, in the manner of sentence, he
distinguished between Appellant 1 and Appellant 2, though I can

understand the sentence on Appellant 3 who was a youth of 17. The
sentence on Appellant 1 is reduced to 12 months.

It has
been brought to my notice that one of the convicted accused persons,
Seputsoe Chekoane, has been released on bail "pending
appeal".
In fact there was no appeal pending and further even if there was, he
did not prosecute his appeal, and made no appearance.
He vanished
into thin air. The ease with which our magistrates grant bail, even
following upon conviction, is quite appalling,
and those whose job it
is to bring respect to the institution are sometimes the very persons
who help to bring disgrace upon it.
A warrant of arrest is issued
against this accused and upon his arrest he should be committed to
serve his sentence.

Any
period of imprisonment served by the appellants before they were
released on bail pending appeal will be taken into account
in
computing the period of imprisonment imposed upon them.

CHIEF
JUSTICE

14 th
September 1984

For
Appellants : Mr. Ramodibedi

For Crown
: Mr. Kabatsi