IN THE COURT OF APPEAL OF LESOTHO
C of A (CRI) No.2 of 2005
In the matter between
PHAMONG MOHALE First Appellant
KHOTSO MOHALE Second Appellant
and
REX Respondent
CORAM: RAMODIBEDI, JA
GROSSKOPF, JA
MELUNSKY, JA
Summary
In this matter the Appellants are brothers. Al is the elder brother of A2. At the time of the commission of the offence giving rise to this appeal they were aged 24 and 17 years respectively. That was on 10 April 2005. On that day the Appellants acting together in a common purpose brutally murdered the deceased, 'Masehulahula Nketsi at a place described as Mazenod Ha Jimisi in Maseru district. They accused her of having killed their mother by witchcraft in their dispute over a certain residential house.
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The High Court duly convicted them of murder and sentenced them as follows:-
Al = 10 years' imprisonment.
A2 = 15 years' imprisonment. They have appealed to this Court against sentence only.
At the roll call in this Court on 5 October 2005 the Court specifically called upon Al in terms of section 9(4) of the Court of Appeal Act 1978 to show cause why, in the event of his appeal on sentence being dismissed, and only in that event, his sentence of 10 years' imprisonment ought not to be enhanced on the ground that it might be found to be manifestly inadequate. The Court accordingly received full submissions on the issue.
Held: That the Appellants were found guilty of a very serious offence in which they acted with premeditation and in concert. They mounted a merciless brutal attack on a defenceless old woman. In the process, A2 felled the deceased with a stone thrown at the back of her head and stabbed her on her back with a knife five times.
Held: Further that, at 24 years, Al was more mature and should have led by example but he did not.
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Held: Further that since Al was a party to a common purpose, there was nothing to set him apart from the actions of A2.
Held: Further, that as a matter of fundamental principle, offenders who have the same or similar degrees of moral guilt and involvement
in the commission of a crime should, in the absence of circumstances that justify disparate sentences, be treated equally.
Held: Further that, the relevant age for consideration for the purposes of section 26(1) of the Children's Protection Act 1980 which provides that no child shall be punished by imprisonment is the age on the date of sentence.
Held: Accordingly, that the following order is warranted:-
the Appellants' appeals against sentence are dismissed.
the sentence of 10 years' imprisonment in respect of Al is set aside and substituted with the following sentence:-
"Fifteen (15) years' imprisonment."
GROSSKOPF and MELUNSKY JJA concurred.
M. M. RAMODIBEDI
JUSTICE OF APPEAL
20 OCTOBER 2005
HEARD: 7 October 2005.
DELIVERED: 20 October 2005
Criminal law - Murder - Common purpose - killing motivated by belief in witchcraft - Appeal against sentence imposed by the High Court - Failure to give reasons for sentence - No justification for disparate sentences - Enhancement of sentence against the Appellant
who received a lesser sentence in the High Court - Power of the Court under Sec 9 (4) of the Court of Appeal Act, 1978 - Section 26 of the Children's Protection Act 1980 - Correct interpretation thereof
JUDGMENT
RAMODIBEDI, JA
[1] A belief in witchcraft, a belief which Shreiner JA in the celebrated case of R v Fundakubi and Others 1948 (3) SA 810(A) at 819 aptly termed an "evil" belief, continues to wreak havoc in this country. In this regard, it is not an overstatement, in my view, to say that when this senseless belief does raise its ugly head in court proceedings, as the instant case illustrates, it invariably paints a picture of sickening callousness and raw brutality that belies the very peace loving nature of the Basotho Nation itself.
[2] Regrettably, 'Masehulahula Nketsi ("the deceased") became a victim of this barbaric belief on 10 April 2002 when the Appellants brutally killed her in front of her own helpless and aged husband in broad daylight and in full view of members of the public at a place described as Mazenod Ha Jimisi in Maseru district.
[3] It will be noted at the outset that the Appellants are brothers. Al
is the elder brother of A2. At the time of the commission of the offence, they were aged 24 and 17 years respectively.
[4] In their misguided belief, the Appellants accused the deceased of having killed their mother by witchcraft in their dispute over a certain residential house.
[5] It is strictly unnecessary to recite the foil facts pertaining to that dispute. It is a very sad story on its own. The long and the short of it is that the Appellant's mother defaulted on payment in her attempt to buy the house in question from the deceased and her husband ("the couple"). She took occupation of the house but only paid a deposit. The couple successfully resorted to courts of law and obtained an eviction order against her. She nevertheless refused to vacate the house until she passed away. It is alleged by the Appellants that on her death bed she uttered the words "the house has finished / killed me" or words to that effect.
[6] On 10 April 2002, as I have said above, the Appellants unlawfully attacked the couple and in the process brutally murdered the deceased. I deliberately use the words "unlawfully" and "murdered" because the findings of the High Court in that regard are not challenged.
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[7] On 13 December 2004, Guni J, sitting with two assessors, duly convicted both Appellants of the murder of the deceased on the doctrine of common purpose. The learned Judge a quo made very crucial findings which are not challenged on appeal, namely that the Appellants had the "direct" intention to kill and that indeed the murder was premeditated. In this regard, she correctly, in my view, took into account the fact that the Appellants' sister, one Nthabiseng ("Nthabiseng") who accompanied them on the fateful day in question, was at the time of the attack on the couple heard shouting: "the one who is wanted is this one", pointing to the deceased. Indeed evidence disclosed that Nthabiseng was the moving spirit behind the whole attack.
[8] The learned Judge a quo sentenced the Appellants as follows:
A2 = 15 years' imprisonment.
Significantly, the Appellants have appealed to this Court against sentence only. I should say that, in my view, this is hardly surprising since they simply had no defence. Their story that they acted in self defence was pathetic. It was rightly rejected by the trial court. I am driven to accept, therefore, on the authority of S.R Snyman: Criminal Law (Third Edition) at page 249, that the murderous stabbing of the deceased by A2 was correctly imputed
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to Al since the two Appellants acted together in a common purpose. The learned author puts the principle succinctly in the following terms:-
"If two or more people, having a common purpose to commit a crime act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others."
It counts for nothing then that Al did not inflict any fatal injuries on the deceased.
[9] In order to place the question of sentence in this matter in its proper perspective, it is necessary to sketch out a brief resume of relevant facts. It will be noted for that matter that the full facts of the case have been fully narrated by the learned Judge a quo.
[10] On the fateful day in question, namely 10 April 2002, the Appellants, accompanied by Nthabiseng, set out looking for the couple who, it must be said, were elderly people aged 67 and 62 years respectively. The Appellants were heard making inquiries about the whereabouts of the couple. When they did find them walking innocently along a certain footpath at the place described in paragraph [2] above, they "interrupted" and "stopped" them. Al ordered them to "drop" the items they were carrying and
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"forthwith" to go and remove their other items which they had placed in their disputed house. It is the undisputed evidence of the deceased's husband, namely Justice Phatsoane (PW6), that A1 was the first to hit the deceased with a stick and thereafter concentrated his attack on PW6 himself. A2 concentrated his attack on the deceased who tried to run away but was soon brought down with a stone thrown by A2 at the back of her head. She tried to rise up and run but A2 mercilessly stabbed her with a knife several times on her back. One must add that the deceased was a defenceless old woman who posed no danger to the Appellants. This also applied to PW6. Five stab wounds were observed on the deceased's back. She had also sustained one deep open wound at the back of her head which caused a fracture of the occipital bone.
[11] I should add for completeness that the appellants left the deceased without rendering her any assistance. She was taken to hospital but was unfortunately pronounced dead upon arrival.
[12] This Court has stated often enough that, as a matter of fundamental principle, sentence is pre-eminently a matter within the discretion of the trial court. In this regard, it is well established that an appellate court will not interfere merely because it would have exercised that discretion differently from the trial court. On the
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contrary, an appellate court will generally interfere only where there is a material misdirection resulting in a miscarriage of justice or where the sentence passed by the trial court is either so harsh or lenient, as the case may be, as to compel an inescapable conclusion that the trial court acted unreasonably and therefore improperly. See for example Phaloane v Rex 1980 -84 LAC 72 at 88: Sechaba Ramaema v Rex C of A (CRI) No8 of 2001
[13] Besides the common law, it is right to say that there is an added power legislatively given to this Court on sentence. It is that which is provided for in section 9 (4) of the Court of Appeal Act, 1978 ("the Act") namely:-"9. (1) ----------
----------
On appeal against sentence, the Court shall, if it thinks that a different sentence should have been passed, quash the sentence
passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal."
See Phaloane v Rex (supra) at page 87.
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[14] The most disturbing feature of this case, in my view, is the fact that the learned Judge a quo failed to give any reasons for her differential treatment of the Appellants in so far as sentence is concerned. This surely cannot be right. As this Court pointed out in Lebina and Another v Rex C of A (CRI) No7 of 2001 an accused person is entitled to know the reason why he / she has been sentenced. This Court has stated often enough that failure to give reasons may often give the impression that the decision is arbitrary and thus bring the justice system into disrepute. Be that as it may, however, the absence of reasons for the imposition of disparate sentences in this matter amounts to a misdirection. It therefore means that this Court is now at large to do its best and consider sentence afresh.
[15] At this stage it is opportune for me to point out that at the roll call in this Court on 5 October 2005 the Court specifically called upon the First Appellant in terms of section 9 of the Act to show cause why, in the event of his appeal on sentence being dismissed, and only in that event, his sentence of 10 years' imprisonment ought not to be enhanced on the ground that it might be found to be manifestly inadequate. We have accordingly received full submissions on behalf of the first Appellant on this issue.
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[16] As will be recalled from what is stated above, the Appellants have been found guilty of a very serious offence. They acted with premeditation and in concert. In the process they mounted a merciless brutal attack on a defenceless old woman. I find Al's behaviour particularly reprehensible bearing in mind that he is the elder brother of A2. At 24 years he was more mature and therefore should have led by example. He did not. Moreover, since he was party to a common purpose to murder the deceased there is in principle nothing to set him apart from the actions of A2. There is therefore no justification, in my view, for treating him more leniently than A2 merely because the latter is the one who inflicted the fatal blows on the helpless deceased.
In fairness to Mr Putsoane for the Appellants, he very fairly and properly conceded, both in his heads of argument and in oral argument
before us that the "two Appellants should have been given equal punishment".
In Tseliso Monaleli and Mafeka Mthimkh'ulu v Rex C of A (CRI) 6/04. decided on 20 April 2005, this Court sentenced both Appellants to 25 years' imprisonment each for murder (committed in the course of robbery) despite the fact that the second appellant was the one who had pulled the trigger and killed the deceased.
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[17] It is important to bear in mind that in Lepoqo Seoehla Molapo v Rex 1999 - 2000 LLR & LB316(LAC) at 321 this Court laid down a fundamental principle that offenders who have the same or similar degrees of moral guilt and involvement in the commission of a crime, should, in the absence of circumstances that justify discrimination, be treated equally.
[18] Following in the same vain in Lebina and Another v Rex (supra) this Court expressed itself in these terms:-"Although no two cases can ever be exactly the same it is salutary for courts to strive for a measure of uniformity in sentencing wherever this can reasonably and justly be done. Otherwise the kind of disparity in sentencing as demonstrated by the court a quo in this case will no doubt bring the whole justice system into disrepute." See also Sechaba Ramaema v Rex (supra)
[19] It is further instructive to bear in mind the following remarks of this Court in yet another case on the point, namely Poleliso Khalanyane and 4 others v Rex C of A (CRI) No. 11/02 (unreported):-
"There is, of course, no need to impose the identical sentence on each participant to the same crime. Each participant's individual
circumstances, including the degree of his participation must be carefully considered. Nevertheless, where accused persons are more or less equally associated in the commission of an offence and there
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are no factors personal to each accused which suggest the need for the imposition of disparate sentences, a court of appeal may
interfere with the sentences where they are treated differently (cf S v Moloi 1969 (4) SA 421 (A) at 424 &E-F)"
[20] The spectre of accused persons unlawfully killing innocent people simply because they believe them to be witches is ominous. It requires to be eradicated through appropriate sentencing methods. There is therefore need to pass an exemplary sentence and to emphasise the retributive and deterrent aspects of sentencing in this case.
[21] It is salutary to bear in mind the case of Mona and Another v Rex 1985 -89 LAC 364 where this Court sentenced both appellants to 20 years' imprisonment each for murdering the deceased whom they believed to be witches who had killed the father of the first appellant by witchcraft. Admittedly it was a more serious case to the extent that the appellants had "slaughtered" four people. The principle however is that courts must mark their disapproval of the evil belief in witchcraft by passing appropriate sentences as proposed hereunder. It is my considered view that lenient sentences will only help perpetuate this dangerous belief
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[22] The learned Judge a quo appeared to be dismissive of the existence of witchcraft when she made the following remarks (probably made in anger) on page 11 of her judgment:-"She (the Appellants' mother) said "ntlo e mo qetile" translated "she died because of the house or the house killed her. What a bull!' There is no such a thing as witchcraft."
If it will help, as I think it should, I desire only to make two comments arising from these remarks:-
(1) While I fully understand the learned Judge a quo's anger in the circumstances, the word "bull" in the context in which it is used here is, I regret to say with due respect to the learned Judge, unbecoming of a judicial officer. It is precisely the type of language and judicial intemperance which this Court strongly deprecated in such cases as Saba v Rex 1995 - 99 LAC 1: Letuka v Rex 1995 - 99 LAC 405. African Oxygen Limited v STM Marketing & Agencies Ltd 1999 - 2000 LLR & LB 306 (LAC) at 404 - 407 and Thuloane Mohoase v Rex C of A (CRI) NO7 of 2004. In the former case, this Court expressed the point at page 7 in the following terms:-
"It need hardly be stressed that this type of language is calculated to taint the image of a judge in the eyes of the public,
and consequently is inimical to the interests of
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the administration of justice."
In Letuka 's case this Court described the trial judge's language when addressing counsel as "unbridled" and "injudicious".
Judges and other judicial officers have therefore sufficiently been warned.
The point is not whether or not there is such a thing as witchcraft but whether the Appellants believed in it. Fortunately, however, the learned Judge a quo corrected herself on page 16 of her judgment when she stated as follows:-
"At this stage (i.e. the determination as to the existence or otherwise of extenuating circumstances) I do accept that weird belief in witchcraft and powers commanded thereunder, can operate as an extenuating circumstance."
She accordingly found that extenuating circumstances did exist in respect of both Appellants.
[23] The Appellants' personal circumstances were, in the instant case, properly considered by the court a quo. I should like to confess,
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however, to the fact that the youthfulness of A2, namely 17 years at the time of the commission of the offence, has given me anxious moments. I have agonised over it as it is clearly a factor in his favour.
[24] Indeed Mr Putsoane for the Appellants submitted before us that A2 should not be given a custodial sentence because he was only 17 years at the time he committed the offence in question. Instead, he suggested that A2 should be sent to a juvenile centre or, as I understand the submission within the context of the Children's Protection Act 1980 ("The Children's Act"), to an approved school. He sought to rely on section 26(1) thereof which provides
as follows:-
"26. (1) No child shall be punished by imprisonment."
[25] Now, section 2 of the Children's Act defines a child as "an unmarried person under the age of 18 years." It follows that for Mr Putsoane's submission to be upheld there would have to be evidence to show that, besides being under the age of 18 years, A2 was an "unmarried" person. There is however no such evidence on the record. Needless to say that A2 bore the onus to show that he was unmarried and therefore a "child" within the meaning of the Children's Act. He failed to discharge such onus.
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[26] Moreover, I consider that, if accepted, Mr Putsoane's suggestion that A2, who is now 20 years and therefore no longer a child within the meaning of the Children's Act, should be sent to a juvenile centre or approved school would have far-reaching consequences which could never have been within the contemplation of the Legislature. It would mean that a person who was aged below 18 years at the time of the commission of the offence but who, to quote a random example, is aged 30 years at the time of sentence (not an impossible scenario by any means when one has regard to delays which sometimes occur in prosecution of cases) would similarly have to be sent to a juvenile centre or approved school to the detriment of minor children thereat. Such an interpretation is in my view not only untenable but is plainly absurd. In this regard it is useful to bear in mind the nature and scheme of the Children's Act which is to ensure that children or unmarried persons below the age of 18 years do not mix with adults in detention centres or prisons. The mischief sought to be remedied here is the danger of putting children at the risk of being corrupted by adults or hardened criminals.
[27] Although the primary rule in the construction of statutes is that the language of the Legislature should be given its ordinary meaning, this rule is itself subject to exceptions. One such exception is that
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where the language of the Legislature leads to absurdity so glaring that it could never have been contemplated by the Legislature then the court is justified in departing from such meaning. See R v Venter 1907 TS 910: Shenker v the Master 1936 AD 136.
I am therefore satisfied that a construction that accords with common sense is called for in this matter.
[28] It follows from these considerations that the correct interpretation of section 26 (1) of the Children's Act, in my judgment, is that if at the date of sentence the accused has attained the age of 18 years, it is within the court's discretion to impose whatever sentence it deems appropriate in the circumstances. Put differently, the relevant age for consideration for the purposes of section 26 (1) is the age on the date of sentence.
[29] It remains for me to say that A2's youthfulness is not definitive of the matter in the circumstances of this case. It must be considered in conjunction with other factors. Besides the serious nature of the offence committed, it will be noted that the trial court found as a fact that Appellants lacked remorse. Once again, this finding is not challenged on appeal. What is more, there is evidence that after brutally murdering the deceased, A2 was seen casually
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wiping off blood from his knife on the grass. In my view, if evidence of extreme callousness be required, this is it. It is revolting
behaviour which needs to be corrected by imposing an appropriate sentence as reflected hereunder.
[30] Weighing all of the aforesaid factors, I consider that the following order is warranted:-
The Appellants' appeals against sentence are dismissed.
The sentence of 10 years' imprisonment in respect of Al is set aside and substituted with the following sentence:-"Fifteen (15) years' imprisonment."
M. M, RAMODIBEDI
I concur
F. H. GROSSKOPF
I concur:
L. MELUNSKY
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For the Appellants: Mr N.E. Putsoane
For Respondent: Miss L. Mofilikoane
