Refugees

Criminal law — Murder — Sentence — Power of Court of Appeal to enhance sentence — Review of Court’s own order — Patent error — Suspension of sentence for murder — Section 314(2) of the Criminal Procedure and Evidence
2
Act 1981 — Duty of counsel to assist the court — Exceptional jurisdiction to
correct error.

Criminal Law – Murder – Causation – Whether the chain of causation was broken – Role of medical versus eyewitness evidence – Extenuating circumstances – Sentence.
Evidence – Evaluation of conflicting testimony – Preference of credible direct evidence over inconclusive expert opinion – Medical evidence not conclusive but advisory – Court entitled to rely on credible eyewitnesses where consistent with other evidence.
Appellate Review – Limited interference with findings of fact – Appellate court slow to disturb trial court’s assessment of credibility unless findings are plainly wrong or vitiated by misdirection.
Practice and Procedure – Substitution of lesser offence – Arson reduced to unlawful damage to property under section 198 of the Criminal Procedure and Evidence Act – No prejudice to accused where essential elements of the lesser offence are included in the greater.
Sentence – Discretion of trial court – Appellate intervention only where sentence induces a sense of shock or is vitiated by misdirection – 25-year term for brutal, unprovoked killing of defenceless spouse not excessive.

Constitutional Law — Open Justice — Bail Proceedings Conducted in Chambers — Whether Proceedings in Chambers Render Bail Order a Nullity — Exceptional Circumstances Justifying Departure from Open Court Requirement — None Shown — Principle of Transparency and Public Confidence in Criminal Justice — Victims’ Right to Information — Review Jurisdiction of Court of Appeal.

FLYNOTE
Criminal law – Murder – Extenuating circumstances – Appeal against conviction – Sentence enhancement in absence of cross-appeal – Power of appellate court to vary sentence
2
proprio motu – Manifestly lenient sentence – Sentencing discretion – Role of deterrence and public abhorrence in punishment.

FLYNOTE
Criminal Law – Murder – Circumstantial evidence – Whether inference of intent to kill established beyond reasonable doubt – Culpable homicide – Whether trial court misdirected itself in failing to consider absence of mens rea for murder – Penal Code Act 2010 (Lesotho), sections 40, 41.

FLYNOTE
Criminal Law — Murder — Self-defence — Whether Crown proved guilt beyond reasonable doubt — Whether trial court misdirected itself in rejecting self-defence — Duties of appellate court on findings of fact — Credibility of witnesses — Single witness rule — Forensic inconsistencies — Investigative irregularities

FLYNOTE
Immigration – Naturalisation – Delay in conferral of citizenship – Legitimate expectation – Mandamus – Ministerial discretion – Judicial deference – Whether High Court usurped Minister’s statutory function – Lesotho Citizenship Order 1971, ss 9(2), 12(2), 14, 16(1)

FLYNOTE
Criminal law—Murder—Self-defence—Constructive intent—Sentencing discretion—Appeal against conviction and sentence—Whether appellant acted in private defence—Whether sentence of 18 years’ imprisonment excessive.

ORDER

The accused is sentenced to eighteen (18) years imprisonment

Application to interdict respondent from denying applicant use of regular passport and to review and set aside the declaration of the passport as null and void to be irregular, unconstitutional and unlawful – whether applicant was entitled to a hearing before the decision was made – whether applicant established he has a right to the passport – whether respondents were correct to deny applicant re-entry into Lesotho – issuance of passport to applicant illegal and cannot be
sanctioned - applicant not entitled to the audi alteram partem before the decision was taken – respondents’ decision to deny applicant re-entry unlawful.

Refugee Act 18 of 1983 - naturalization of refugee under section 14 - total residence-period prior to application for naturalization six years - application prior to expiry of six year period ineffective.