CRI/A/101-107/86

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

NYAMANE
SEKOATI 1st Appellant

MAQOTHOLANE
MAKOABA 2nd Appellant

SETOI
MOKOPOTSA 3rd Appellant

NTHE8ERE
SETLOBOKO 4th Appellant

BONANA
MAKOABA 5th Appellant

TERONKO
PHAHLA 6th Appellant

KHOTSO
MATSOSO 7th Appellant

V

REX"
Respondent

JUDGMENT

Delivered
by the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the
5th day of May, 1987

The seven
appellants were convicted by the Subordinate Court for the District
of Berea of culpable homicide. They were also convicted
on a second
count of assault with intent to do grievous bodily harm. The first
appellant was again convicted on a third count of
arson.

The
second count alleged the assault of two persons, Ts'epo Mabaleha and
Mohapi Lekaea. The learned Crown Counsel Mr. Mdhluli very
properly
concedes that the count is bad for duplicity. The convictions in
respect thereof cannot stand.

As to the
first count, Ts'epo Mabaleha and Mohapi Lekaea gave evidence as to
the assault upon and the death of the deceased. Ts'epo
Mabaleha
testified that he and another had been assaulted by the second,
third, fourth, fifth and sixth appellants. After he had
been
assaulted, those five appellants left him in the custody of an eighth
co-accused, the first

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appellant's
father, who was subsequently acquitted bythe learned trial
magistrate. The five appellants left and returned, accompanied
by the
first and seventh appellants,that is, all seven appellants, with
Mohapi Lekaea andthe deceased in their custody, both handcuffed
to
one another.

Mohapi
Lekaea gave an account of what had mean­while transpired. He
testified that the first appellant approached him on horseback.
The
latter alleged that Mohapi and the deceased had stolen the eighth
accused's goat, which Mohapi denied. He went with the first
appellant
to the deceased's home, about one kilometre away, where the others
had gathered. The first appellant dismounted, levelled
a gun which he
carried at the deceased, instructing the other appellants to tie the
deceased's hands behind him. At one stage the
first appellant fired a
shot at the deceased, perhaps intending to intimidate and frighten
him, but did not strike him. On the
first appellant's instructions
the witness was tied to the deceased. Both fell down. He testified
that all seven appellants then
beat them with plastic sjamboks all
over their bodies, assisted by two others, particularly one Tona. The
second appellant suggested
that Mohapi and the deceased be tied
together by their hands, which was done. The first appellant then set
fire to the cattle post
hut, built mostly of stone, where Mohapi and
the deceased resided. The other appellants did not interfere. The
first appellant
informed the deceased that "I know how a person
is killed". The deceased remained silent.

Thereafter
both Mohapi and the deceased, their hands tied to the saddle of the
first appellant's horse, were forced to run on both
sides of the
horse to the appellant's village, having been meanwhile further
assaulted by the first appellant with a sjambok, small
stones

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having
been placed in their shoes by Tona on the first appellant's
instructions. On arrival at the village,

where
Ts'epo Mabaleha awaited with the eighth co-accused, Tona struck the
deceased on the rear of his neck with a stick. The deceased
fell. The
first and second appellants dismounted and beat Mohapi and the
deceased. The deceased arose. The first appellant untied
the loose
end of the rope from his saddle and commenced dragging Mohapi and the
deceased. The deceased apparently fell again and
was dragged along
the ground prostrate. At that stage, Mohapi testified, the deceased
was still alive but "tired hopelessly".
The other
appellants made no comment when the first appellant commenced
dragging Mohapi and the deceased. They were thus dragged
some
distance, Mohapi observing that the deceased had meanwhile expired.
When they were untied the deceased was dead, he said.

None of
the seven appellants cross-examined the witness. His evidence was
corroborated by that of Ts'epo Mabaleha who said that
on arrival at
the appellants" village, Tona struck the deceased with a stick
and felled him.. "Those on horseback"
dismounted, he said,
and assaulted the deceased with whips where he lay. The deceased was
dragged to a hillock where the witness
stood, and it was then that he
observed that the deceased was dead. The body lay on the hillock
until the police arrived the next
day.

The
evidence for the prosecution was supported by that of the eighth
accused, who admitted that he had sent the seven appellants
to fetch
Mohapi and the deceased,after Ts'epo had claimed that the two had
slaughtered his goat. He testified that "They came
with the
deceased no more talking but still alive" and that the deceased
"died in my custody". Again, a witness
called by the eighth
accused, Mafene Makoaba,

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testified
that Ts'epo had confessed to slaughtering his sheep, but nonetheless
claimed that the deceased had slaughtered the eighth
accused's goat.
The witness said that the latter then sent the seven appellants. He
testified that:

"The boys went up and came driving Matsie (the deceased) and
P.W.2 Mohapi fastened them together both. Matsie fell to the
ground
due to harsh and severe driving of them as were trotting. I cannot
say what fell him to the ground as my eyes are not good
in sight -
but cannot exclude been beaten down. Ratabane (the eighth accused)
was in the house. I called them to raise him up but
could not get up.
They dragged him by hands very badly until they disappeared behind
the kraal. Myself and Ratabane and Phethang
reached simultaneously
and stopped accused to drag him further. We carried him on the trees
shadow to regain consciousness. He
never responded. They came with
goat skin still with legs. We never spoke to accused as we admired at
their persecution on driving
deceased who died thereafter."

None of
the appellants ever cross-examined the eighth accused or his witness.
All of them remained silent in defence and called
no witnesses.

The
learned Counsel for the appellants Mr. Nthethe submits that the real
culprit is Tona, as it was he who felled the deceased,
and he should
have been charged. If he felled him, then the evidence of Mohapi
Leksea is that the deceased rose thereafter. It
is possible
nonetheless that the specific blow by Tona ultimately caused death.
In this respect the medical evidence was inconclusive
and
unsatisfactory. The doctor who conducted the post-mortem examination,
observed multiple wounds on the body and chest of the
deceased. He
could not "exclude deceased might have injury on the neck for we
don't have facilities to examine such injuries
internally", he
said. He testified

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that "a
clear cause of death was not found". In any event, the Crown
does not have to prove which specific blow, if any,
caused death, or
who inflicted that particular blow. It is sufficient for the Crown to
prove that the appellants acted in concert
and that the deceased died
as a result of injuries inflicted during the course of the joint
enterprise.

Mr.
Nthethe submits that the cause of death was not established. Clearly
it was not established by medical evidence. But, as Mr.
Nthethe
concedes, it, can be established aliunde if the other evidence gives
rise to an irresistible inference - see the case of
THABISO TSOMELA v
REX 1974 LLR 97 at pp. 98/100 per Cotran J. (as he then was). The
evidence before the Court below was that the
deceased, aged
approximately 30 years, apparently in good health prior to that, was
subject to a sustained beating, forced to run
some distance beside a
trotting horse, then felled, beaten and felled again and then dragged
along the ground until, on the evidence
of four witnesses, he
expired. Even if it was the case that the deceased had suffered from
some physical ailment and death had
resulted from the aggravation
thereof, then clearly the actions of the seven appellants would have
served to hasten death and at
law they would be deemed nonetheless to
have caused death. In all the circumstances I consider that the
evidence of the cause of
death was overwhelming, the only reasonable
inference being that the deceased died as a result of injury
inflicted by the appellants.

On the
totality of the evidence, both specific and general, I consider that
there was proof beyond reasonable doubt that the seven
appellants
acted in concert in the matter, and that they were all engaged in an
unlawful joint enterprise,which bore the risk of
some harm, albeit
not necessarily fatal harm or injury,to the deceased.

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As to the
third count, there was clear evidence,

which the
first appellant himself never challenged, that he had wilfully set
fire to the dwelling house of the deceased and Mohapi
Lekaea.

When it
came to sentence, the learned trial magistrate regarded the first
appellant as the ringleader. He sentenced him to 4 years'

imprisonment on the first count; he sentenced the other six
appellants each to 2 years' imprisonment, 1 year thereof to be
suspended
for 3 years on condition that the appellants are not
meanwhile convicted of assault. Even though the first appellant was a
first
offender, I consider that the learned trial magistrate was
quite justified in treating him as a ringleader and in imposing a
more
severe sentence upon him in particular. I cannot say that the
sentence imposed upon him comes to me with any sense of shock as
being manifestly excessive and I am not at liberty then to disturb
it. I consider that the sentences imposed on the other appellants,

who were also first offenders, were, if anything, somewhat lenient,
but not manifestly so.

As to the
third count of arson,the learned trial magistrate imposed a sentence
of 2 years' imprisonment on the first appellant,to
be served
consecutively to the punishments under the first and second counts. I
consider the sentence of 2 years' imprisonment
entirely appropriate.
In ordering the sentence to be served consecutively however, the
effect of such order was that the first
appellant would serve six
years' imprisonment, as compared to one years' imprisonment in the
case of the other appellants (availing
of the order of suspension).
That comparison I. consider to be manifestly disproportionate,
bearing in mind that the arson formed
part of the one transaction, a
factor which seems not to have exercised the learned trial
magistrate's mind in the exercise of
his discretion under section
301(2) of the Criminal

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Procedure
& Evidence Act, 1981. Under the circumstances I consider that
this Court is at large in the matter of such discretion.

The
appeals against conviction and sentence in respect of the first count
are dismissed. The appeals against convictions in respect
of the
second count are allowed and the said convictions and respective
sentences are set aside. The appeal against conviction
on the third
count is dismissed. The appeal against sentence on that count is
allowed however, to the extent that I order that
the sentence of two
years' imprisonment shall be served concurrently with the sentence to
be served by the first appellant under
the first count.

B. P.
CULLINAN

CHIEF
JUSTICE

5.6.87.

For the
Appellants: Mr.G.G. Nthethe

For the
Crown : Mr. G.S. Mdhluli