C of A
(CRI) 6/2004 CRI/T/64/01
COURT OF APPEAL OF LESOTHO
matter between :
MONALELI FIRST APPELLANT
MTHIMKH'ULU SECOND APPELLANT
were 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.
two appellants were charged and convicted on two counts; one of
murder and a charge of robbery. They were sentenced on
count to 40 years' imprisonment. The sentences were ordered to run
concurrently. They appeal both against their convictions
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.
Because of the narrow ambit of the enquiry, the facts can be briefly
summarized as follows:
two appellants crossed together into Lesotho from the town of
Ficksburg in the Republic of South Africa on the day in
They had done so illegally, it
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.
appellants were observed by three witnesses as being involved in the
murder of the deceased One witness, PW1, 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 appellant's 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
had crossed into
Lesotho from South Africa together. They had visited the witness
P.W.1 at her home together, and begged for food
and money from her.
They left P.W.1 in one another's company and were some time later
seen to enter the shop. A witness who was
inside the shop, P.W.3,
gave evidence of the shooting inside the shop. She says they were
standing next to one another and confronting
the deceased when the
first appellant fired two shots into the body of the deceased. They
ran out of the shop together. Some shots
were fired 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
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
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
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
overwhelming Crown testimony, unassailable. The inference that the
two appellants associated with one another
in pursuance of a common
illegal purpose is irresistible. They were in my opinion therefore
correctly convicted of both robbery
and murder. Their appeals against
these verdicts is dismissed.
appellants have noted an appeal also against their sentences of 40
years imprisonment. These sentences were imposed by the
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
question before us is whether in the light of all the circumstances
this unusual lengthy sentence imposed by the court a quo
 I say
"unusually lengthy" because sentences in excess of 25 years
imprisonment have been described as "exceptionally
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).
is no legislative or other limitation imposed upon a court when
determining the length of a sentence to be imposed upon
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
six further shots into the body of the deceased elevates this offence
into one meriting a lengthy period of imprisonment.
Coupled with this
consideration is the fact that the appellants demonstrated no remorse
and steadfastly tried to blame each other.
appellants were young, as stated above, 19 and 18 years respectively
when they committed these two offences. The immaturity
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.
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 do so.
Counsel for the second appellant asked us to impose a lesser sentence
on him because he did not fire the shots that killed
Had he used the opportunity afforded by the second phase of the
enquiry, after the finding that extenuating circumstances
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
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.
Having regard to all the factors and circumstances identified above,
we have concluded that a just sentence is the following:
appellants are sentenced to 25 years' imprisonment on count 1 - the
charge of the murder of the deceased.
appellants are sentenced to 7 years' imprisonment each on the
robbery charge - i.e. count 2.
sentences are ordered to run concurrently and are to take effect
from the date the appellants were arrested and detained in
in respect of these two offences.
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 out above.
at Maseru on this 20th day of April 2005.
for the first Appellant : Mr. T. Mpaka
for the second Appellant : Mr. K. Lesuthu
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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