Ramaema v R; R v Ramaema and Others (C of A (CRI). NO 8 OF 2001)

Case No: 
C of A (CRI). NO 8 OF 2001
Media Neutral Citation: 
[2003] LSHC 49
Judgment Date: 
14 April, 2003

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C of A (CRI). NO 8 OF 2001

 

SECHABA RAMAEMA

and

REX

 

SUMMARY

 

CORAM

RAMODIBEDI, J.A.

GROSSKOPF, J A

PLEWMAN, J.A.

 

Murder and robber. y - Common purpose -Act of one conspirator in causing death of deceased imputed to other co-conspirators as a matter of law - causal connection between act of each participant causing death of deceased need not be proved- accomplice evidence - Section 239 of the Criminal Procedure and Evidence Act 1981 -corroboration.

 

The appellant was charged, jointly with six others including the Respondents in the cross-appeal, with the crime of murder and robbery arising from the killing of the deceased Patrick Kennedy Hickey an Irish national and hijacking of his motor vehicle on the night of 21 January 1999 at or near a place called Florida in Maseru. The Appellant was found not guilty of murder but was convicted of robbery and sentenced to twenty years' imprisonment. He appealed against both conviction and sentence. Toka Letsie (A4) was convicted of murder and sentenced to five years' imprisonment. He however sadly died in prison while this appeal was pending. David Masito (A5) and Bongani Masito (A6) were found guilty of murder on count 1 and robbery on count 2. They were sentenced to twelve years and ten years' imprisonment respectively. Both sentences were ordered to run concurrently.

 

The Crown case rested mainly on the accomplice evidence of PW2 Mosemako Hlalele

 

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whose evidence established that there was a common purpose hatched by the Appellant to rob the deceased of his motor vehicle. The plan was successfully executed after several failed attempts in which all the co-conspirators participated. The Appellant had at one stage suggested that they should point guns at the deceased. At one stage he suggested that they should pose as policemen to lure the deceased to stop and then rob him of his motor vehicle.

 

The Court a quo duly cautioned itself of the danger of convicting on accomplice evidence but found corroboration in the fact that the deceased's motor vehicle was subsequently found in the possession of the Appellant and that the vehicle had been fitted with the number plates admittedly belonging to Appellant's own motor vehicle. There was also corroborative evidence of the investigating officer PW9 Inspector Mosili to the effect that the Appellant led him to A5, A6 and A7 and ultimately to the person to whom he had sold the deceased's Siemens S6 cell phone. Fearing that the Appellant would get angry with them for having failed so often the Appellants' co-conspirators then by-passed him, waylaid the deceased on the night of 21 January 1999 and brutally killed him with knives after which they stole his motor vehicle Exh "6", a Siemens S6 cell phone Exh "3" as well as a wallet containing a sum of M100-00 cash.. These items were taken to the Appellant on the same night.

 

Held, that where there is evidence of prior common purpose to commit a crime and the parties to such common purpose foresee that force or violence might have to be used to overcome resistence in the furtherance of the common purpose as in casu the acts of one are the acts of the other(s) and that in order for the accused to escape criminal liability in such a situation he must show that he dissociated himself before the plan was executed.

 

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Held, further, that on the facts it was established beyond reasonable doubt that the Appellant was a party to a common purpose to commit robbery and that he foresaw the possibility of one or all of the other parties to the common purpose causing death to the deceased in the execution of the plan yet he did not dissociate himself but actively persisted, reckless of such fatal consequences and it occurred.

 

Held, further, that the Appellant should have been found guilty of murder on count 1.

Held, further, that the sentence of twenty years' imprisonment imposed on the Appellant in respect of count 2 (robbery) was too harsh and disproportionate to the sentence imposed on his co-accused who were actually present when the deceased was brutally killed.

 

Held, further, therefore, that the following order is made:

 

  1. The appellant's appeal against his conviction on count 2 (robbery) is dismissed.

 

  1. The appellant's appeal against sentence on count 2 succeeds to the extent that the sentence of the Court a quo is altered and replaced with the sentence of fifteen years' imprisonment.

 

  1. The Crown's cross-appeal against the acquittal of the appellant on count 1 (murder) is upheld.

 

  1. The trial Court's verdict of "not guilty recorded against the appellant on count 1 is set aside and substituted with a verdict of "guilty of murder".

 

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  1. The matter is remitted to the trial Court to determine the existence or otherwise of extenuating circumstances and to pass appropriate sentence in respect of the appellant on count 1.

 

  1. The Crown's cross-appeal against the sentences imposed by the trial Court on A5 (David Masito) and A6 (Bongani Masito) in respect of both counts is upheld.

 

  1. The sentences imposed on A5 (David Masito) and A6 (Bongani Masito) in respect of both counts are set aside and substituted with the following sentences:-

 

"Count 1: Twenty years' imprisonment each." "Count 2: Fifteen years' imprisonment each."

 

All the sentences to run concurrently,

 

M.M. Ramodibedi

JUDGE OF APPEAL

14 April 2003

 

C of A(CRI)No. 8 of 2001

IN THE COURT OF APPEAL OF LESOTHO

 

In the matter between:

SECHABA RAMAEMA APPELLANT

and

REX RESPONDENT

and

in the cross-Appeal of:

REX APPELLANT

and

SECHABA RAMAEMA FIRST RESPONDENT

TOKA LETSIE SECOND RESPONDENT

DAVID MASITO THIRD RESPONDENT

BONGANI MASITO FOURTH RESPONDENT

 

Held at Maseru on 7 April 2003

 

CORAM:

Ramodibedi, JA

Grosskopf, JA

Plewman, JA

 

JUDGMENT

 

RAMODIBEDI, J.A.

 

[1] The appeal in this matter comes before us in the following circumstances. On the night of 21 January 1999 and at or near a place called

 

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Florida in the district of Maseru the deceased Patrick Kennedy Hickey was waylaid, brutally stabbed with knives and killed just as he alighted from his motor vehicle described as a white Toyota Hilux van Registration No. AM 273 (hereinafter referred to as Exhibit "6").

 

[2] After they had ensured that the deceased was either dead or dying his attackers searched him and stole, in accordance with their predetermined scheme, his car keys (Exhibit "1"), a Siemens S6 cell phone, (Exhibit "3") and his wallet containing a sum of M100-00 in cash. They also stole Exhibit "6" which they drove away. All these are matters of common cause.

 

[3] The predetermined motive was admittedly to rob the deceased of the motor vehicle in question. That motor vehicle was registered in the name of the Irish Consulate. At the time of his death the deceased who was an Irish national was contracted to the Irish Agency called Agency for Personnel Services Overseas (APSO). He was working at Rural Water Supply under Foot Bridges Program which was supported by funds from the Irish Consulate.

 

[4] Charges of murder (Count 1) and robbery (Count 2) were

 

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subsequently preferred against the following persons:

 

  1. Elias Phisoana Ramaema (A1). He is appellant's father.

  2. The appellant Sechaba Ramaema (A2);

  3. Keketso Ramaema (A3). She is appellant's wife.

  4. Toka Letsie (A4);

  5. David Masito (A5);

  6. Bongani Masito (A6) and

  7. Ntsie Sebatana (A7).

 

[5] The appellant and his alleged accomplices were summarily tried before Maqutu J in the Court below who discharged both A1 and A3 at the end of the Crown case on the ground that there was no prima facie case against them.

 

[6] The appellant was found not guilty of murder on count 1 but was convicted of robbery on count 2. He was sentenced to twenty (20) years' imprisonment with effect from December 2000. He has appealed against both conviction and sentence.

 

[7] The case against the appellant's co-accused who are also respondents in the Crown's cross-appeal went this way. Toka Letsie (A4) was

 

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convicted of murder and sentenced to five (5) years1 imprisonment with effect from January 1999. He was acquitted of robbery on count 2. David Masito (A5) was found guilty of murder on count 1 and robbery on count 2. He was sentenced to twelve (12) years' imprisonment for the murder and 10 years' imprisonment for the robbery. The sentences were ordered to run concurrently with effect from January 1999. Bongani Masito (A6) was convicted of murder on count 1 and robbery on count 2. He too was sentenced to twelve (12) years' imprisonment for the murder and ten (10) years' imprisonment for the robbery. The sentences were ordered to run concurrently with effect from January 1999.

 

[8] Both the record of proceedings and the judgment of the Court a quo are surprisingly silent as to the fate of Ntsie Sebatana (A7) in the Court below. He was not present in Court throughout the trial.

 

[9] It will be convenient at this stage to record that the Crown has cross-appealed against the appellant's acquittal on the murder count. The Crown has also cross-appealed against the acquittal of Toka Letsie (A4) on the robbery count. The sentence imposed on the latter is also attacked on the ground that it is too lenient. Furthermore the Crown has cross-appealed

 

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against the sentences imposed on David Masito (A5) and Bongani Masito (A6) respectively on the ground that they are also too lenient.

 

[10] It requires to be mentioned at the outset that the Crown case rests on an allegation of conspiracy and thus raises the doctrine of common purpose in terms of which it is alleged that the accused and the accomplice acted in concert and with a common purpose to commit the crimes forming the subject matter of the indictment.

 

[11] Before dealing with the merits of this appeal it requires to be mentioned further that the Court was informed, and this is common cause, that A4 (Toka Letsie) has sadly passed away. Accordingly the appeal in so far as he is concerned does not arise in these proceedings.

 

[12] The bedrock of the Crown case is no doubt the evidence of the accomplice Mosemako Hlalele (PW2). Briefly stated,his evidence in so far as it is material for the determination of this appeal is as follows: He knows the appellant having met him for the first time at Ha Thamae around January 1999. He also knows A5 and A6 whom he first met at Motimposo around the same

 

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time. He stayed together with them at the home of one 'Mampolokeng. It was while he was there that he saw the appellant arrive in a Venture motor vehicle, summon A5 and A6 to him and engage them in conversation. Thereafter A5 and A6 reported to him (PW2) that the appellant was looking for a vehicle. At that stage the appellant had already left. He had however invited PW2, A5 and A6 to his "place" at Ha Thamae.

 

[13] It is PW2's evidence that he proceeded to the appellant's place in the company of A5 and A6 and when they arrived there the appellant told them that he would take them to where "the white man" or "the European" was working so that he could show them the vehicle that he wanted. The appellant further assured them that it was still early in the day and that the white man would knock off at four o'clock.

 

[14] At half-past three in the afternoon the party comprising PW2, the appellant, A5 and A6 boarded a van and proceeded to a place called Khubetsoana where they found the vehicle appellant wished to obtain parked at a place where there were Government flags. A6 peeped through the window and pointed to a white 4x4 Toyota vehicle on the right side. After seeing this

 

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vehicle they passed on taking the road which leads to "Agric", made a U-turn and then parked their van. It was here that the appellant "instructed" PW2 and the rest of the party to wait so that the white man could pass in order for them to follow him with the aim of seeing where he was staying.

 

[15] Later at the end of his working day, the white man in question drove past in the 4x4 Toyota vehicle in question and PW2's party followed him. The appellant was driving. This white man was the deceased himself and the vehicle he was driving was the one "wanted" by the appellant. When the party got to a place called Seputaneng they were stopped by red traffic lights but the deceased managed to go through. They thus lost sight of him.

 

[16] When PW2's party reached the top of the road the appellant said that they should enter the village to look for the deceased's 4x4 Toyota vehicle. This took them up to Hoohlo's village where they saw the vehicle parked next to a house. This turned out to be the place where the deceased was staying. PW2's party then returned first to Ha Thamae and ultimately Motimposo. But not before the appellant had given them another instruction to come back and meet the following day.

 

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[17 On the following day PW2's party did meet with the appellant at Ha Thamae as arranged. The party was still constituted as on the previous day. The appellant posed a question as to what should be done in that situation but PW2 and the rest of the party told him they did not know. He then proposed the idea that he was going to buy white gloves and that the rest of the party should also buy hats similar to the ones used by the traffic police. The reason for all this was that the appellant wanted PW2's party to go and waylay the deceased who would be made to think that they were traffic police. The appellant said A6 would in fact wear gloves and he would also have files. He also gave the latter the task of stopping the vehicle in question.

 

[18] It is the evidence of PW2 that the appellant actually said that if and when the deceased stopped his vehicle the rest of the party should come and point "guns" at him and then rob him of his car. They however had no guns. Neither did they get the hats in question with the result that this particular plan or method of robbing the deceased was accepted as having failed. But the overall plan of robbing the deceased remained the agreed objective.

 

[19] It was then that the appellant came up with another idea and said

 

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since they had failed in the original plan they should go to the deceased's home to see whether he was staying with anybody. This they did after the deceased left work in the afternoon. They were still constituted as before. PW2 entered the place while the rest of the party drove on and parked some distance from the deceased's house. The reason why PW2 entered the yard was precisely to see whether the deceased was staying alone or not. He was armed with a letter the trick being that he should give it to the deceased but that if the latter declined to accept it he would take it back to his companions. In this way he would be able to see whether the deceased lived alone or not.

 

[20] It is PW2's evidence then that as he entered the deceased's yard he heard people talking inside a house. He found two couples from Central or West Africa. They were however not in the main house but apparently in the outbuilding. He showed them the letter and asked them whether they knew the person to whom it was addressed. He was told to try next door but he returned to his companions namely the appellant, A5 and A6. He reported to them that there were people staying at that place. They were "dismayed" and left the place in disgust.

 

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[21] Undaunted by their temporary disappointment PW2's party comprising PW2 himself, the appellant, A5 and A6 went back to the deceased's residence on another occasion on a different day. They were taken there by the appellant who however left them next to a certain school. It was already dark in the evening. Before he left, however, they all participated in a discussion to the effect that when the deceased left for a certain hotel (so he explained it) they would hide in his yard so that when he came back they would "catch" hold of him and then take away the vehicle Exhibit "6".

 

[22] Pursuant to the plan set out above PW2, A5 and A6 proceeded to the deceased's residence and hid themselves inside the yard. The deceased however failed to come back and so they left empty handed. Significantly they gave a report to the appellant who instructed them to meet again the next day.

 

[23] In the evening of that following day the appellant once more took PW2, A5 and A6 and dropped them near the deceased's residence where they again hid in the latter's yard. Before entering the yard however, they saw the vehicle Exhibit "6" drive out. While they were still hiding in there they again

 

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saw the people from Central and West Africa enter the yard. They panicked and left. Once more they reported their "failure" to the appellant on the following day. It was on that day at Motimposo that PW2's party met A7. A6 recruited the latter into the scheme. A7 agreed and in the afternoon they took him to the appellant at his home. A6 introduced him to the others.

 

[24] In the evening of the same day the party comprising the appellant, A5, A6, A7 and PW2 boarded appellant's vehicle and left for the deceased's premises. As usual the appellant dropped them next to the school at Ha Hoohlo. PW2's party found the deceased's vehicle Exhibit "6"parked at his residence. They then waited outside hoping that the vehicle might drive out but it did not until they ultimately left. As usual they reported back to the appellant about their "failure".

 

[25] Worried about their repeated failures a suggestion was made by A6 that they recruit A4. It was pointed out that the latter was however not on good terms with the appellant. Nevertheless he was duly recruited. On the night of the same day PW2's party decided to go directly to the deceased's residence without going via the appellant. They were constituted as follows:

 

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PW2, A4, A5, A6 and A7. They hid inside the deceased's yard. They were, save for A5 and A7 (both of whom PW2 did not know what they were armed with) armed with knives.

 

[26] While PW2 and his accomplices were still hiding inside the deceased's premises the latter arrived driving the motor vehicle Exhibit "6". As will be recalled the plan was that when he alighted from his vehicle PW2 and his accomplices would "catch hold" of him and rob him of Exhibit "6". Three of them namely A4, A6 and A7 would catch him from behind. However the plan did not go as expected.

 

[27] As the deceased emerged at a certain corner of his premises PW2 rushed at him. The two wrestled but PW2's accomplices did not come forward as planned to offer assistance. The deceased fought back and was apparently much stronger than PW2 who says that he felt that his ribs were aching from the deceased's strong grip. PW2 fell down. He managed to get up only to be floored again by the deceased with a fist. He felt dizzy and at this stage he stabbed the deceased with a knife, inflicting a wound to his chest. The latter fell down. I may digress here to say that it is common cause that this

 

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is the wound that actually killed the deceased.

 

[28] After the deceased had been fatally stabbed by PW2 with a knife the latter's accomplices emerged from where they had been hiding under the trees. These were A4, A6 and A7. At this stage A6 stepped on the deceased's neck and then also stabbed him with a knife. A4 and A7 then also stabbed the deceased with knives.

 

[29] After stabbing the deceased with knives PW2 and his accomplices ran away towards the Caledon River only to come back to the deceased later when they suspected he might by then have died. They found him dead and they then searched his clothing. In the process they took away the deceased's car keys Exhibit "1", a Siemens S6 cellular phone Exhibit "3" and a wallet containing M100-00. They drove away in the motor vehicle Exhibit "6" leaving the deceased lying there. A5 was the person who drove the vehicle.

 

[30] PW2 and his accomplices drove first to Motimposo where they bought tobacco using the money they had stolen from the deceased. They then drove to Khubetsoana at A1 's residence where the appellant was staying.

 

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It was after 10 o'clock at night.

 

[31 ] According to the evidence of PW2 the first thing that the appellant did when they got to his residence that night was to ask why they had not removed the number plates of the motor vehicle Exhibit "6". He was confronting PW2 and A5 in particular. They told him they had forgotten to do so. PW2 then immediately removed the number plate that was fitted at the rear of the vehicle. A5 removed the front number plate. The "bars" which had been fixed at the front of the vehicle were also removed.

 

[32] PW2 testifies that the appellant then brought hot water in a kettle and removed the stripes at the sides of the vehicle in a further attempt, no doubt to disguise or hinder identification of the motor vehicle Exhibit "6".

 

[33] PW2 further testifies that his accomplices and himself gave the deceased's Siemens S6 cell phone Exhibit "3" to the appellant.

 

[34] PW2 and his accomplices then took away all the documents which were in the vehicle Exhibit "6" together with the number plates and left. The

 

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appellant personally took PW2 and his accomplices in his Venture motor vehicle to where they stayed at Motimposo. On the way PW2 threw the documents and the number plates in the Maqalika dam on the instructions of the appellant himself and the other accomplices.

 

[35] As they parted company the appellant instructed PW2 and the other accused to meet him at Ha Thamae on the following day. This they did and found him at his shop. He inquired about how much payment they would like and A5 suggested that he should pay them "in the manner he (the appellant) would be comfortable". Present at this meeting were PW2, A5, A6, and the appellant himself.

 

[36] Despite his promise the appellant is alleged to have paid only the sum of M600-00. Thereafter he procrastinated about paying any further amount until PW2 and the other accomplices were arrested.

 

[37] It is to be observed that PW2 withstood lengthy cross-examination remarkably well despite his poor health at that stage. No material contradictions were elicited in cross-examination and he remained completely

 

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unshaken. Indeed in the grounds of appeal on behalf of the appellant no contradictions are cited.

 

[38] In my view there can be no doubt that, if believed, PW2's evidence constitutes a damning account against the appellant and his alleged accomplices. It implicates them in many material respects.

 

[39] It is no doubt convenient at this stage to refer to Section 239 of the Criminal Procedure and Evidence Act 1981 which the learned trial Judge took into account. It simply reads:

 

"Any court may convict any person of any offence alleged against him in the charge on the single evidence of any accomplice, provided the offence has, by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of the court to have been actually committed."

 

[40] It is not disputed that the requirements of the Section quoted in the preceding paragraph were satisfied when one has regard to the evidence of the Crown witnesses PW7 Mthimkulu Mavuso and PW8 Detective Trooper Mphephoka both of whom testified to finding the deceased lying dead in a pool of blood and his motor vehicle Exhibit "6" missing on the morning of the 22nd

 

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January 1999. The post-mortem report Exhibit "B" which the defence duly admitted is evidence confirming the death of the deceased including the cause of death namely the stab wounds he sustained. The evidence of PW1 John Paul O'Donoghe also confirmed that the motor vehicle Exhibit "6" was used by the deceased. He duly identified it at the police charge office in Maseru on 30 January 1999.

 

[41] In a commendable approach the learned trial Judge duly bore in mind that PW2 was an accomplice on his own version and that the Court was enjoined to exercise caution as protection against a wrong conviction. Thus for example the Court noted that PW2 was not "forthright" about his sojourn in the Republic of South Africa and that this factor required the Court to be on guard. Furthermore PW2 "did not mince his words about his hatred for accused 2" (the appellant) as he complained that the latter had underpaid him for robbing the deceased of his vehicle Exhibit "6". Moreover the record shows that the appellant had, in what was no doubt considered by him to be an astute move, even assaulted PW2 for bringing trouble to his family by "selling" him a stolen vehicle. Once more the trial Court duly exercised caution about the danger of convicting on the evidence of such a witness.

 

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[42] Furthermore, the trial Court was alive to the fact that PW2 was very ill when he gave evidence and that his recollection of events was not always perfect. In particular the trial Court was "careful" that PW2's evidence should not prejudice the appellant by substituting conjecture for fact. And so too did the trial Court exercise caution arising from the fact that the police had brought pressure to bear on PW2 to "talk" and had "pinched" him a little as a result of which he produced the knife with which he killed the deceased. The trial Court was also mindful of the fact that PW2 was the real killer of the deceased. His evidence before Court was "straight forward"and he did not seek to minimize his role in the same way that he did in his statement to the police.

 

[43] It need hardly be stated that in adopting this approach the learned trial Judge is supported by such cases as R v Ncanana 1948 (4) SA 399 (A) where at 405 Schreiner JA stated the position as follows:

 

"The cautious Court or jury will often properly acquit in the absence of other evidence connecting the accused with the crime, but no rule of law or practice requires it to do so. What is required is that the trier of fact should warn himself, or, if the trier is a jury, that it should be warned, of the special clanger of convicting on the evidence of an

 

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accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of the requirements of sec. 285 does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that he may be convicted wrongly although sec. 285 (our section 239) has been satisfied will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced, even in the absence of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is, in such circumstances, only permissible where the merits of the former as a witness and the demerits of the latter are beyond question."

 

[44] The law was succinctly restated by Holmes JA in S v Hlapezula 1965 (4) SA 439 (A) at 440 in the following terms:

 

"It is well settled that the testimony of an accomplice requires particular scrutiny because of the cumulative effect of the following factors. First, he is a self-confessed criminal. Second, various considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or, particularly where he has not been sentenced, the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing description - his only fiction being the substitution of the accused for the culprit. Accordingly, even where sec. 257 (our section 239) of the Code has been satisfied, there has grown up a cautionary rule of practice requiring (a) recognition by the trial Court of the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong conviction, such as corroboration implicating the accused in the commission of the offence, or the absence of gainsaying evidence from him, or his mendacity as a

 

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witness, or the implication by the accomplice of someone near and dear to him."

 

[45] As this Court stated in Manamolela and others v Rex 1980-84 LAC 202 at 206 the applicability of the cautionary rule to Lesotho was affirmed by the Privy Council in Bereng Griffith Lerotholi and others v The King 1959 AC 11 (PC) also reported in 1926-53 HCTLR 126 (PC).

 

[46] Again in a commendable approach the learned trial Judge looked for a safeguard against a wrong conviction. He looked for corroboration and in his own words he said this:

 

"Even apart from the evidence of PW2 accused 2 (the appellant) had been connected to the crime by the finding of Exhibit 6 (a vehicle which belonged to deceased) in the possession of accused 2 (the appellant). Furthermore this vehicle had been fitted with the plate numbers of a vehicle in the current possession of accused 2 (the appellant). This was highly corroborative to the evidence of PW2."

 

[47] That the appellant was in fact found in possession of the deceased's motor vehicle Exhibit "6" is indeed common cause. It is not without significance for that matter that such possession was recent being only a matter of some nine days after Exhibit "6" had been stolen from the deceased. That being so, there is a similarity with the doctrine of recent possession in

 

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terms of which if it is proved that the accused was found in possession of recently stolen property, the Court may (not must) convict him of theft in the absence of an innocent explanation which might reasonably possibly be true. See for example S v Parrow 1973 (1) SA 603 (A) at 604 per Holmes JA.

 

[48] Apart from the corroborative evidence relating to the discovery of Exhibit "6" in the possession of the appellant it is necessary to state that PW2's evidence does not stand alone. Before dealing with the appellant's explanation it is convenient therefore to refer to the other material evidence presented against him. I do so in a summary form in as much as the full facts of the case appear in the judgment of the trial Court. It is therefore strictly unnecessary, as it seems to me, to repeat them here.

 

[49] The evidence of PW3 Thabo Fosa was short and simple. He worked at Borokhoaneng Supermarket and knew the appellant well as the latter was a regular customer at the supermarket. It was his evidence that in about January 1999 the appellant arrived at his work seeking to or offering to sell a cellular phone similar to Exhibit "3". He even left his cell phone numbers with PW3 so that the latter could call him if there was a buyer. PW3 then told

 

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PW4 Mothae Nonyana who was apparently interested. In due course the appellant met PW4 at the supermarket and the two of them left together in a van bearing registration numbers D2550 to negotiate the price of the cellular phone in question.

 

[50] PW4 Mothae Nonyana himself gave evidence for the Crown and duly corroborated PW3's version. He pointed out the appellant as the person who sold him a Siemens S6 cellular phone. The asking price was M500-00 but he talked him down to M300-00. He duly identified the cellular phone in question as being Exhibit "3". He was able to identify it by a slight "breakage" on the side.

 

[51] The evidence of PW6 Tikoe Matsoso proved beyond reasonable doubt in my view that the cellular phone Exhibit "3" belonged to the deceased. He was employed in the Ministry of Public Works and Transport and worked with the deceased in the same office as his head. He had known the latter since 1992.

 

[52] According to PW6's evidence the deceased owned a Siemens S6

 

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cell phone which he purchased in 1998. He knew this cellular phone well because he personally had to use it sometimes. Indeed it is not disputed that PW6 was able to identify the cellular phone Exhibit "3" not only by its "scratches" but also by its peculiar ordour emanating from the deceased's pipe. It is further not disputed that the deceased smoked a pipe and that because of their close association PW6 got used to the ordour of the pipe.

 

[53] The evidence of PW9 Inspector Mosili shows that he is a member of the Lesotho Mounted Police Service with twenty years' experience in the Criminal Investigation Department (CID). He is the Chief Investigating Officer in the matter. On 22 January 1999 he received a report relating to the armed robbery and death of the deceased following which he started his investigations. On 29 January 1999 he received information which led him and his team mates to A1's residence in a police raid in the early hours of 30 January 1999. As will be recalled this is where the appellant himself resided.

 

[54] It is PW9's evidence that on arrival at the gate of A1's residence he saw the appellant inside the premises. PW9 and his team mates tried to talk to the appellant but he simply walked away and "disappeared" from view.

 

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[55] PW9 and his team mates conducted a search on the premises in the presence of A1 and A3. They found the deceased's motor vehicle Exhibit "6" parked in the garage with a Mercedes Benz car. Exhibit "6" had a number plate D0440 fixed at the back of the vehicle. The canopy belonging to Exhibit "6" was found detached from the vehicle outside the garage. They removed Exhibit "6" and took it to CID where it was identified by PW1 as the deceased's motor vehicle.

 

[56] Thereafter the uncontested sequence of the events given by PW9 is as follows: On 31 January 1999 he found the appellant sitting with his lawyer DW3 in the latter's motor vehicle. He warned and cautioned the appellant who in turn freely and voluntarily gave an explanation and "without hesitation" took PW9 to Ha Tsiu where he pointed out A5, A6 and A7.

 

[57] A5, A6 and A7 in turn took PW9 to Lower Tsiu where they pointed out the accomplice PW2. All of these men then took PW9 to Motimposo where they pointed out A4.

 

[58] PW2 then took PW9 to one Paseka Maphale where he demanded

 

25

 

his knife. The latter handed PW2 a brown knife with a long blade Exhibit "2".

 

[59] A4 in turn took PW9 to one Pusetso Matsepe from whom he demanded his knife. The latter obliged by handing A4 a black knife with a long blade Exhibit "4".

 

[60] On the question of the cellular phone Exhibit "3" the appellant himself took PW9 to PW3 at Borokhoaneng. PW3 in turn pointed out one Neo Ntsekhe at Tsoapo-le-bolila, Qoaling in the district of Maseru. The latter took PW9 to the National University of Lesotho where he pointed out PW4 in the presence of the appellant.

 

[61] PW4 handed to PW9 in the presence of the appellant a Siemens S6 cellular phone Exhibit "3".

 

[62] PW9 is adamant that the information he received on 29 January 1999 leading to the police raid on A1 's residence and the subsequent recovery of Exhibit "6" did not come from the late Detective Trooper Ramatabooe. As will become apparent shortly this is in stark contrast to the appellant's evidence

 

26

 

that he actually reported to the late Detective Trooper Ramatabooe that he was in possession of Exhibit "6" which had been "sold" to him by PW2.

 

[63] In the light of the aforegoing facts Adv. Griffiths for the Crown submits that PW3, PW4 and PW6 (and to some extent PW9) provide material corroboration to the accomplice PW2's evidence implicating the appellant in so far as the deceased's cellular phone is concerned. I see great force in that submission which, in my view, is fully supported by evidence as fully set out above.

 

[64] So one turns to consider the appellant's explanation. He gave evidence in his defence as DW1 and called two witnesses namely his younger brother DW2 Khojane Ramaema and his lawyer DW3 Mr. Haae Phoofolo. In a nutshell the appellant's evidence amounted to a total denial of the Crown case but one carefully contrived to meet what was irrefutable in the Crown case. He conceded however that the accomplice PW2 did meet him at Ha Thamae sometime in January 1999. It was on 26 and 27 January 1999 and not before the deceased's killing. It is his version that PW2 wanted to sell him Exhibit "6" which the latter was driving. PW2 was accompanied by one Seeiso

 

27

 

Seeiso whom the appellant knew and to whom the appellant had entrusted the task of finding him a motor vehicle similar to Exhibit "6".

 

[65] The appellant, a 38 year old man, who is admittedly a qualified mechanic and business man owning a total of eight motor vehicles says that Exhibit "6" bore an expired South African special permit on its windscreen. It had no number plates. Although PW2 offered to sell it to him he had no documents showing lawful ownership of the vehicle. The vehicle itself was new thus prompting the appellant to ask PW2 why he was selling such a new vehicle. The latter's response was that it belonged to his parents. His father had passed away and he had agreed with his mother to sell it to defray the family debts. The asking price of M65.000-00 for that matter was a "bargain" -he still succeeded to negotiate it down to M60,000-00 which was even more of a "bargain".

 

[66] It need hardly be stated that all of the above factors were, in my view, at least sufficient to flash red warning lights at the appellant if his version is to be believed as being possibly reasonably true. But I should hasten to say that on PW2's version, if accepted, there is no possibility of appellant's

 

28

 

explanation being true. It will be recalled that on PW2's version Exhibit "6" was stolen on the night of 21 January 1999 and taken the same night to A1's residence were it was received by the appellant himself and hidden in the garage. If that account be true, it follows then that the appellant's version about PW2 driving Exhibit "6" to him on 26 and 27 January 1999 and offering to sell it to him must be a fabrication.

 

[67] To revert to the appellant's explanation, however, he says that he insisted that PW2 go and fetch the ownership documents for Exhibit "6" while he himself went to Ladybrand to draw a cash of M40,000-00 deposit which they had agreed upon. Significantly the appellant says that he insisted to PW2 that the sale "wouldn't take place without such (ownership) papers".

 

[68] The appellant further says that on 27 January 1999 PW2 came to him at A1's residence where he stayed driving Exhibit "6" which he asked to park at the premises since he was going to Fobane in Leribe district to fetch the ownership documents of Exhibit "6". PW2 could not drive the vehicle because its permit had expired on 25 January 1999.

 

29

 

[69] The appellant could not however explain why it was good enough for PW2 to drive around in Exhibit "6" in Maseru with the expired permit in question but not good enough to drive it to the remote area of Fobane in Leribe

district.

 

[70] The appellant could not offer any reasonable explanation why he then allowed PW2 to park Exhibit "6" in the "shade" in the garage while his own motor vehicles were parked outside in the sun.

 

[71] The appellant conceded that he removed the canopy from Exhibit "6". He says it is because he had seen some sofas in Ladybrand and was intending to load them in Exhibit "6" after its clearance. This despite the fact that he had not yet paid even a cent for Exhibit "6".

 

[72] It is further the evidence of the appellant that when PW2 failed to turn up on 29th January 1999 he took the particulars of Exhibit "6" and took them to one friend of his namely the late Detective Trooper Ramatabooe to find out whether it was not a stolen car or whether it was not being sought for by the police. He told the latter that Exhibit "6" was brought by PW2 who was selling

 

30

 

it. The late Detective Trooper Ramatabooe then informed him that Exhibit "6" was stolen and that the police were looking for it. Strangely he did not tell him that a person was killed when Exhibit "6" was stolen. Be that as it may the late trooper gave him PW9's phone numbers with the instruction that he should call PW9 "immediately upon arrival of PW2 Hlalele and I should call him under any circumstances" He was further instructed to release Exhibit "6" to PW2 in any way.

 

[73] I pause here to say that to suggest that a police officer (Detective Trooper Ramatabooe) would behave in the manner suggested by the appellant defies logic. I find it most improbable that he would actually instruct the appellant to phone PW9 only upon the arrival of PW2. Indeed I consider that if the appellant's version is to be believed the late Detective Trooper Ramatabooe would no doubt have taken action himself. There is no evidence to show that he was a corrupt officer and in my view he would have reported to PW9 about the information he allegedly received from the appellant. This is more so bearing in mind the admitted fact that this was a high profile case involving a foreign national from a friendly country. It is therefore highly unlikely that members of the police service would be so slack as suggested by the

 

31

 

appellant's evidence. As I read the record of proceedings in this matter, however, it was never put to PW9 that the appellant had actually told the late Detective Trooper Ramatabooe about the presence of Exhibit "6" in his possession. The inference is, in my view, irresistible therefore that the appellant was fabricating the story on this point.

 

[74] Moreover it will be recalled from paragraph [62] above that PW9's evidence was to the effect that the information he received leading to the police raid at appellant's place of residence did not emanate from the late Detective Trooper Ramatabooe himself. It is not without significance for that matter that the late Detective Trooper Ramatabooe was in fact in the police raid at the appellant's place of residence on 30 January 1999.

 

[75] Despite appellant's evidence that the late Detective Trooper Ramatabooe gave him PW9's phone numbers (which he already had anyway) he did not phone the latter to inform him about the presence of Exhibit "6" in his possession and the involvement of PW2. Instead, after closing his shop he went "straight to the Cabanas where he casually attended a feast until midnight. From there he took his wife home and then left immediately for

 

32

 

Qwaqwa in the Republic of South Africa. This was after midnight and I should add that no reasonable explanation was furnished why he should leave at that time of the night. More importantly he did not phone PW9 before leaving the country.

 

[76] While in Qwaqwa the appellant tried to phone his wife but in vain. Still he did not phone PW9. He then came back on 31 January 1999 only to find upon his arrival at home that his younger brother DW2 had been arrested and Exhibit "6" seized by the police. Only then did he "immediately" phone PW9 on his cellular phone. He says he told the latter that Exhibit "6" had been brought to him by PW2 and that it was for sale.

 

[77] The appellant could not advance any reason to explain the following factors, inter alia:-

 

  1. why PW9 with whom they had always worked together harmoniously before would say that he pointed out A5, A6 and A7;

 

  1. why PW3 would falsely say he came to him about the cellular phone Exhibit "3" the sale of which he even

 

33

 

facilitated to PW4;

 

  1. how PW9 would have known about PW3 and PW4 unless he was told by the appellant himself judging from the sequence of events set out in paragraphs [56 - 61] above.

 

[78] It requires to be mentioned at this stage that the trial Court which had the benefit of seeing the witnesses and hearing their evidence carefully weighed up the evidence and came to the conclusion that it could safely accept the evidence of the Crown witnesses and reject that of the appellant and his

witnesses.

 

[79] In my view, and having regard to the cumulative effect of the factors to which I have referred,the trial Court's conclusions in its assessment of the evidence and its reasons for such conclusions cannot be faulted. It was not shown to have misdirected itself in any material respect and accordingly no grounds exist for interfering with its findings on the merits. The Crown presented a formidable case against the appellant and his co-accused. That of course is not to say that the Crown case was entirely without blemish.

 

34

 

[80] At this stage I desire only to say this, namely that this Court should and does warn itself of the danger inherent in convicting on the evidence of an accomplice. However the accomplice PW2's evidence in this matter does not stand alone. In my view it was sufficiently corroborated in a material respect implicating the appellant and his co-accused. In addition to what has been said above it is pertinent to record that the appellant failed to challenge PW2 on at least the following material allegations:-

 

  1. that PW2 and his accomplices reported to him immediately after the robbery and killing of the deceased on the night of 21 January 1999. In my view this is a damning piece of evidence against the appellant;

 

  1. that on arrival at appellant's place of residence the latter confronted them on why they had not removed the number plates of Exhibit "6".

 

The appellant then proceeded to disguise the identity of Exhibit "6" for example by removing the stripes with hot water and repainting it.

 

[81] It requires to be stressed for that matter that such was the formidable nature of the Crown case that Adv Phafane who appeared for the

 

35

 

appellant before us properly made the following concessions both in his heads of argument and in his submissions:

 

"1.4 The evidence of the accomplice was to a certain extent supported by evidence of the alleged sale of the deceased's cellphone by appellant, and by evidence tendered by the investigating officer to the effect that it was the appellant who had led him to accused no. 5 and 6.

 

1.5 The evidence of the accomplice was further supported by the fact that the stolen vehicle was found in the appellant's garage bearing number plates to a similar vehicle of the appellant. This was common cause between the parties."

 

[82] It follows from the aforegoing considerations that the appellant's appeal against his conviction must fail.

 

The Crown's Cross-Appeal

 

[83] As will be recalled from paragraph [9] above the Crown has cross-appealed against the trial Court's acquittal of the appellant on the murder count. In so doing the learned trial Judge reasoned this way:

 

  1. The appellant "hatched" the "scheme" or conspiracy with others to rob the deceased of his motor vehicle Exhibit "6".

 

  1. The appellant "foresaw deceased might fight and raise alarm (as

 

36

 

he in fact did) and that excessive force including killing deceased outright might have to be resorted to by PW2 and the co-accused of accused 2 (the appellant) who are in fact, his partners in crime."

 

  1. The appellant was "miles away and did not know that his scheme of robbery was proceeding."

 

  1. Accordingly the appellant was not guilty of murder simply because he was not present at the scene where the murder and robbery were actually committed.

 

[84] It requires to be stressed that the Crown case was founded on the doctrine of common purpose. I hasten to observe however that this doctrine has been the subject of much debate and criticism in the Republic of South Africa, see for example S v Khoza 1982 (3) SA 1019 (A) and S v Sefatsa & others 1988 (1) SA 868 (A).Ido not propose to enter the debate but I should be prepared, however, to say that the classical meaning of the doctrine of common purpose is that where two or more persons associate together or agree in a joint unlawful criminal undertaking each one of them will be responsible for any criminal act committed by the other or others in the furtherance of their common purpose. In such a situation the acts of one are

 

37

 

the acts of the other(s). See S v Shaik and others 1983 (4) 57 (A) at 64-65. In a case where an accused has been shown to have joined a conspiracy if he is to escape criminal liability, it must be proved as a fact that the accused in each case dissociated himself from the common design before it was executed.

 

[85] In S v Madlala 1969 (2) 637 (A) at 640-641 Holmes JA expressed himself in the following terms:-

 

"It is sometimes difficult to decide, when two accused are tried jointly on a charge of murder, whether the crime was committed by one or the other or both of them, or by neither. Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof -

 

  1. that he individually killed the deceased, with the required dolus, e.g. by shooting him; or

 

  1. that he was a party to a common purpose to murder, and one or both of them did the deed; or

 

  1. that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequence, and it occurred; see S v Malinga and Others, 1963 (1) S.A. 692 (A.D.) at p.694F-H and p. 695; or

 

  1. that the accused must fall within (a) or (b) or (c) - it does not matter which, for in each event he would be guilty of

 

38

 

murder.

 

It is, of course, plain that, in the absence of proof of common purpose, a Court cannot convict co-accused on the footing that one or the other or both of them must have done the deed, for that basis postulates the possible innocence of one of them."

 

[86] It is salutary to note that that decision was followed by this Court in Mabaso and Another v Rex 1980 -84 LAC 256 and Costa Peter Saba v Rex LLR 1991-96 (Vol. 2) 1379.

 

[87] Reverting now to the facts in this matter it is important to note that the trial court convicted the appellant of robbery on count 2 on the basis of common purpose. The correctness of this finding was not challenged by counsel for the appellant and rightly so in my view.

 

[88] In so far as the murder count is concerned the trial Court, as pointed out in paragraph [83] above, made the following material findings against the appellant after concluding that he "hatched' the scheme to rob the deceased and "instigated' or "planned the initial stages of the robbery by recruiting accused 5 and 6 to go and rob deceased of his vehicle":-

 

39

 

"He (appellant) also foresaw deceased might fight and raise alarm (as he in fact did) and that excessive force including killing deceased outright might have to be resorted to by PW2 and the co-accused of accused 2 (the appellant) who are in fact, his partners in crime".

 

[89] In my view those findings were fully justified on the facts. Once again it is of great significance that those findings are not challenged in the appeal before this Court. There was prior common purpose between the appellant and the perpetrators of the murder. In this regard it will be recalled from paragraph [18] above that at one stage the appellant even suggested that "guns" should be pointed at the deceased. It is pertinent to observe for that matter that the defence itself approached the cross-examination of the accomplice PW2 on the basis that this was a case of car "hijacking". Needless to say that violence is inherent in car hijacking. In this regard the appellant actively associated himself with the perpetrators of the murder and even transported them to the deceased's place of residence on more than two occasions. He was determined that the plan he had himself instigated was executed and so it happened.

 

[90] Notwithstanding its findings as set out above the trial court said the following on page 85 of its judgment:-

 

40

 

"Accused 2's reaction to events leaves a lot of questions unanswered. His deplorable lack of curiosity after getting the vehicle he had invited his partners in crime to bring is very suspect. But the courts in convicting accused persons do not act on suspicion, they act on evidence. That being the case the state of mind of accused 2 could not with certainty be determined when PW2 and others had decided to exclude him in the execution of the plan. Accused 2 might not have known that PW2 and the others have not given up. I will therefore give accused 2 the benefit of doubt on this issue."

 

[91] With respect I think that that approach was erroneous. In my view the trial Court misconstrued the essential features of the common purpose and thus misdirected itself. In particular the court failed to appreciate the significance of appellant's conduct after the murder. His intentions are to be judged from the entire course of events. The other accused clearly had not "decided to exclude him in the execution of the plan". They in fact delivered to him the vehicle which was the central purpose of all that occurred and he not only accepted it but carried on with the steps which were obviously contemplated - namely disguising the vehicle, allowing false number plates to be affixed thereto. Indeed it was never a part of the scheme that he would be present at the scene of the robbery itself. But being a robbery or hijacking the use of violence must have been contemplated carrying with it the likelihood of serious injury or death during this period. Appellant suggested that he was

 

41

 

unaware of the fact that the deceased had been murdered. This is inconceivable given the publicity that followed the event and the Court should have so held leading to the conclusion that the full scope of the plan and therefore the ambit of the common purpose included his taking all steps necessary to avoid the detection of the vehicle and other items which would link him and the other accused to the crime. His acts included the discussion of his co-accused's reward and the making of partial payment. At the same time it must be noted that he took no steps whatever to dissociate himself from what had happened. The only conclusion is that he accepted that what had occurred was something within the scope of the scheme he had initiated and promoted. Some violence must obviously have been anticipated at all stages. The only conclusion when all the appellant's conduct is taken into account is that he was content with what had occurred and therefore that it was within his contemplation before the event that it may well occur.

 

[92] It further follows in my view, therefore, that the appellant falls squarely into category (c) propounded by Holmes JA in S v Madlala (supra) referred to in paragraph [85] above namely to the extent that, on the facts, he was a party to a common purpose to commit robbery and he foresaw the

 

42

possibility of one or all of the other parties to the common purpose causing death to the deceased in the execution of the plan, yet he did not dissociate himself but actively persisted, reckless of such fatal consequences, and it occurred.

 

[93] It is not correct in law, in my view, to say that an active participant in a common purpose such as the appellant in this case is not criminally liable merely because he is not present when a crime in furtherance of his common purpose with the other(s) is committed.

 

[94] In all of these circumstances the Crown's cross-appeal must succeed. In my judgment the trial court's acquittal of the appellant cannot be supported on the facts and such acquittal has in my view led to a miscarriage of justice. The appellant should have been found guilty of murder on count 1. In this regard Section 9 (1) and (3) (a) of the Court of Appeal Act 1978 (as amended by Act No.8 of 1985) gives power to this Court in the following terms:-

 

"(1) Subject to subsection (2) on an appeal against conviction or acquittal the court shall allow the appeal if it is of the opinion that the conviction or acquittal should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence

 

43

 

or on the ground of any wrong decision of any question of fact or law, or that on any other ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.

 

  1. The Court shall, if it allows an appeal against :-

 

  1. the conviction, either quash the conviction and direct a judgement and verdict or acquittal to be entered or if the interests of justice so require, order a new trial; and

 

  1. the acquittal, either reverse and vary judgement to a verdict of guilty and pass such sentence as provided by the law."

 

[95] Now Section 297 (1) (a) and (3) of the Criminal Procedure and Evidence Act 1981 provides as follows:

 

"297 (1) Subject to sub-section (2) or (3), sentence of death by hanging -

 

(a) shall be passed by the High Court upon an accused convicted before or by it of murder;

 

(3) The High Court may impose any sentence other than death upon any person convicted before or by it of murder if it is of the opinion that there are extenuating circumstances."

 

[96] It is clear from the provisions of Section 297 quoted above that the duty to determine the existence or otherwise of extenuating circumstances and

44

 

what sentence to impose primarily falls on the High Court. That being so the matter falls to be remitted accordingly in the light of this judgment and it is so ordered.

Sentence

 

[97] This brings me to sentence. As pointed out in paragraph [9] above the Crown has cross-appealed against the sentences imposed by the trial court on A5 and A6 on the ground that they are inappropriately too lenient having regard to the circumstances of the case.

 

[98] Now Section 9 (4) of the Court of Appeal Act 1978 provides:

 

"On an 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."

 

[99] It is now well settled that sentence in a criminal matter is pre­eminently a matter for the discretion of the trial Court. That discretion is, however, not an arbitrary discretion but is one that must be exercised judicially upon due consideration of all the relevant factors. An appeal Court will not readily interfere with sentence imposed by the trial Court in the absence of a

 

45

 

misdirection resulting in a miscarriage of justice.

 

[100] In Lepoqo Seoehla Molapo v Rex 1999-2000 LLR & LB 316 at 321 (LAC) this Court expressed itself per Steyn P in the following terms:

 

"However, in determining sentence the following factors must in our view also be taken into account:

 

  1. 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. The Court's impartiality and fairness could be seriously questioned if marked disparities between offenders whose moral guilty is indistinguishable from one another were to occur. The fact that the appellant's co-conspirators were each sentenced to 2 years imprisonment and that the appellant's guilt is certainly no greater than theirs is therefore a compelling factor in determining his sentence."

 

[101] Similarly in Julia 'Maphamotse Lebina and Another C of A (CR!) No. 7 of 2001 (unreported) this Court said the following at page 33 paragraph [62] thereof:

 

"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."

 

46

 

[102] It is hardly necessary to say that I approach this matter on the basis of the above mentioned principles.

 

[103] As pointed out in paragraph [ 7] above the parties to a common purpose in this matter were sentenced to different terms of imprisonment ranging from five years to twenty years. In my view no valid reasons were advanced for such disparity.

 

[104] It is the Crown case in a nutshell that in sentencing A5 and A6 the trial Court ought to have imposed a far harsher sentence taking into account, inter alia:

 

  1. the gravity of the offences;

 

  1. the prevalence of the offences more especially the so-called "hijackings" of motor vehicles.

 

  1. The fact that their only motive for having been involved in the murder and robbery in question could have been financial gain. Thus they were driven by greed.

 

[105] The trial Court failed to take all of the above mentioned factors into account. In so doing it erred and thus misdirected itself. Nor did the Court take into account the fact that this was a well calculated illegal scheme planned

 

47

 

in advance and in which all the accomplices played an active role. Indeed in passing sentence the trial Court failed to take into account the callous and brutal manner in which the deceased was killed.

 

[106] It follows from the aforegoing considerations that the Crown's cross-appeal on sentences must succeed. The sentences recorded by the trial Court are thus quashed and substituted by the sentences reflected in the order proposed hereunder.

 

[107] In sum therefore there shall be an order as follows:-

 

  1. The appellant's appeal against his conviction on count 2 (robbery) is dismissed.

 

  1. The appellant's appeal against sentence on count 2 succeeds to the extent that the sentence of the Court a quo is altered and replaced with the sentence of fifteen years' imprisonment.

 

  1. The Crown's cross-appeal against the acquittal of the appellant on count 1 (murder) is upheld.

 

  1. The trial Court's verdict of "not guilty" recorded against the appellant on count 1 is set aside and substituted with a verdict of "guilty of murder".

 

  1. The matter is remitted to the trial Court to determine the existence or otherwise of extenuating circumstances and to pass appropriate sentence in

 

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respect of the appellant on count 1.

 

  1. The Crown's cross-appeal against the sentences imposed by the trial Court on A5 (David Masito) and A6 (Bongani Masito) in respect of both counts is upheld.

 

  1. The sentences imposed on A5 (David Masito) and A6 (Bongani Masito) in respect of both counts are set aside and substituted with the following sentences:-

 

"Count 1: Twenty years' imprisonment each." "Count 2: Fifteen years' imprisonment each."

 

All the sentences to run concurrently.

 

M.M. Ramodibedi

Judge of Appeal

 

I agree:

F.H/Grosskopf

Judge of Appeal

 

I agree:

C.Plawman

Judge of Appeal

 

Delivered on the 14th day of April 2003.

 

For the Appellant: Adv S. Phafane

For the Crown: Adv R.E. Griffiths

For A5 and A6: Adv P.T. Nteso