C of A (CRI) No.13 of 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
TSELISO GEORGE Appellant
HELD AT MASERU
CORAM: Steyn, P
The Crown indicted the appellant on a charge of murder. It alleged that on the 7th January 1996 he unlawfully and intentionally killed one Setsoha Mohanoe. He was convicted on this charge by Molai J and, extenuating circumstances having been found, was sentenced to 9 years imprisonment. He has appealed both against the conviction and the sentence.
The appellant's defence to the murder charge was one of self-defence. He admitted that he assaulted the deceased by striking him with a stick on the forehead and that the deceased died as a consequence of this assault. He alleged however, that he did so because the deceased had twice thrown stones at him. In order to prevent the deceased from throwing a third stone at him, he struck him on the left side of his head with the middle of the stick. He then struck the deceased a second blow on the forehead which fractured his skull and was the cause of his death.
It is common cause that the appellant thereupon mobilised the villagers to assist him to take the deceased to the bus-stop whilst he went on horse-back to look for a vehicle. He hired a van, took the deceased, who was still alive, to the police station. The police gave the appellant documentation to enable the deceased to be admitted to hospital. He personally secured the deceased's admission to the hospital on the evening of the 7th January. He enquired about the deceased on the 8th, He was assured that he was alright. However when he went to visit the deceased on the evening of the 9th of January he was told that he had died.
In order to determine whether the accused was correctly convicted and whether the sentence was appropriate I summarise the relevant events as related by the witnesses.
P.W.I had gone on horse-back to look for two head of cattle that had gone
missing. On the way he met the deceased. The latter informed him that he had seen cattle that look like his (the witness's). They then rode in tandem in the direction indicated by the deceased. When they crossed a stream near some aloes, they dismounted . At this point the appellant arrived on the scene. He told them (the deceased and the witness) to bring their horses because they were grazing in a reserved pasture. The deceased released his horse and the appellant seized it. He then came to seize the horse of the witness. The latter resisted and told the appellant he would not release his horse, he would rather go to court. By this he meant that they should go before the chief and that the appellant should take them to him.
The witness said that at this point the appellant left them and they then went on to a homestead where there was a cafe. He left the deceased outside with the horses, whilst he went inside to buy some matches. Whilst he was inside he heard the sound of what he called a "striking stick". He went outside and saw the appellant striking the deceased on the head. The deceased had fallen down and he observed two wounds on his head.
When the witness first met the appellant he was unarmed, but when assaulting the deceased the appellant was armed with a stick made of lesabara. The deceased was carrying a short sjambok at the time. He did not see the deceased throw stones at the appellant, nor were there any stones in the forecourt where the assault took place.
PW2 was inside the cafe with PW1 when he also heard a sound like a stick hitting a person. He rushed out and saw the appellant striking the deceased for "the second time". He assumed that there had been a prior blow because of the sound he heard whilst inside the cafe. After the appellant had struck the deceased on his head the latter fell down, the appellant retreated and said "I will kill you".
He noticed that the deceased had two wounds. The one was a swelling in the middle of the head and the other one was "a small wound .... on the forehead." He also observed the stick used by the appellant when assaulting the deceased and he describes this as a light lebetlela stick. He saw no stones being thrown, neither did he see any stones in the fore-court.
P. W.3, who was also inside the cafe, was called and confirmed the head injuries to the deceased that she observed immediately after hearing two blows being struck outside the cafe.
P. W.4 was a trooper who was stationed at the Polane at the relevant time. He says that the appellant came to report to him that he had fought with the deceased. He said that he had fought with him because the deceased resisted when he wanted to impound his horse. He did not tell them that the deceased had thrown stones at him before he assaulted him, but that they had quarrelled and had fought.
I have related above in summary what the appellant's defence was to which he
attested in evidence. I should add, however, that he also alleged that he was armed with a stick when he first met the deceased and P.W.I and that he did not leave them in order to collect the weapon with which he assaulted the deceased.
The court a quo accepted the evidence of P.W.I that the appellant did not have his stick with him when they first met. The finding of the court in this regard was the following:
"There is no doubt in my mind, therefore, that when he left P.W.I and the deceased at the aloes and hurried in the direction towards his home in the village, D.W.I (the appellant) was going to arm himself with the timber stick he subsequently used to assault the deceased on the forecourt of P.W.2's homestead."
The court in its carefully reasoned judgment, and on good grounds, rejected the appellant's version that he acted in self-defence to ward off an assault on him by the deceased who threw stones at him. The learned judge summarised the court's finding in this regard as follows:
"There is no doubt, in my mind, that the accused was not testifying to the truth when he said before he assaulted the deceased, as he did, the latter was throwing stones at him. In my find, the truth of the matter is that after his altercation with the deceased and P.W.I at the aloes, the accused returned to his house, armed himself with his timber stick and followed them to P.W.2's place where he found the
deceased attending to the horses on the forecourt and attacked him, as he did, without any provocation at all, at that stage. In hitting the deceased the blows on his head with his timber stick, the accused must have used such a savage power that the former sustained depressed skull fracture.
Assuming the correctness of my finding it is reasonable to accept that in assaulting the deceased, as he did, the accused was aware that death was likely to occur. Nonetheless he did so, regardless of whether or not it did occur. That being so, it must be accepted that in inflicting the injuries on the deceased the accused had the required subjective intention, at least, in the legal sense."
In my opinion the above findings and inferences are fully justified on the evidence and no grounds have been advanced for disturbing these conclusions. The appeal against the conviction therefore fails and the conviction is confirmed.
The appellant was called to give evidence to substantiate a finding that extenuating circumstances were present. I have related some his evidence concerning his conduct after the deceased has fallen to the ground when he was struck the second blow on his head by the appellant.
The following became clear in the course of the appellant's testimony. The appellant was the chairman of the development council in his village. He is a subsistence farmer, ploughing the fields with his cattle. The communal property, such as preserved grazing areas, graveyards and the like, has to be protected against incursion by others.
It was pursuant to this duty that appellant had approached P. W. 1 and the deceased on the day in question. He recognized the deceased whose animals he had confiscated on more than a half- a -dozen occasions. He had done so because they had been grazing unlawfully on the communal property of his village and on reserved grazing areas.
Disputes over grazing rights had arisen between the two villages inhabited by the appellant and the deceased respectively, and seething animosity had developed. This had become so severe that it was agreed that the matter should be taken to a commission, but this had not occurred by the time this incident took place.
When the deceased's own animals had been impounded some of them had died in the pound because he had failed to pay for them. He was therefore perceived by the appellant as personally involved in the dispute .
In his judgment on sentence the learned Judge says the following:
"In mitigation of sentence, the Court was told that the accused had no record of previous convictions. He is, therefore, a first offender,
The Court was also invited to consider, in mitigation of his sentence, a number of accused's personal circumstances. They have been so eloquently tabulated in the submission made by his counsel that there is no need for me to go over them again. Suffice it to say they have all been taken into account by the Court in determining the sentence imposed on the accused person.
It would appear that in sentencing the appellant the Court had due regard to the fact that the appellant was a first offender and that there were "personal circumstances" which the court took into account. These are not recorded but it would appear to have related to the fact that the appellant had a family who were dependent upon him and who would suffer deprivation should he be imprisoned. The Court says the following in this regard:
"However, the painful thing is that the Court has been told that the accused is a married man who has a wife and children, one of whom is still a minor. There is no evidence that his wife and minor child are not law abiding citizens of this Country. They do not, therefore, deserve punishment. In sentencing him to a term of imprisonment the accused will, however, realise, sooner or later, that our prisons are not like concentration camps of the Nazi Germany where people were tortured and killed. Once he is within the walls of the prison, the accused will be given humane treatment. His innocent dependants will, however, be worse of. They will be deprived of their bread winner, the person on whom they relied for all their material needs in life.
In the result, I have come to the conclusion that a sentence of 9 years imprisonment will be appropriate for the accused person. He is accordingly sentenced."
Nowhere in the judgment does the learned Judge refer to three salient features which were unchallenged by the Crown. These are the following
The appellant was at the time a man already 57 years old.
The assault took place against a background of considerable animosity between the two villages. The deceased had himself on several occasions been a participant in conduct that the appellant and his fellow villagers perceived to be an unlawful invasion of their rights.
The significance of the conduct of the appellant after the assault also appears to have been overlooked. Not only did the appellant take every possible step to ensure that the deceased received medical attention, but he enquired about the deceased's welfare and sought to visit him in hospital. He not only reported his offence to the police personally, but after the death of the deceased went and gave himself up to the authorities. This conduct is eloquent testimony of genuine remorse which was deserving of consideration when determining an appropriate sentence.
This Court agrees with the sentiments expressed by the Court of the need for deterrent sentences in cases for those who - as the Court a quo put it "for the flimsiest of reasons kill others." The appellant manifestly does not fall into such category. The significance of the three factors mentioned above were in my opinion given no or inadequate weight when sentence was determined. It follows that the Court a quo misdirected itself in this respect. This Court is accordingly at large to determine an appropriate sentence itself.
Having had due regard to the aggravating as well as the mitigating circumstances present in this matter, I am of the view that a sentence of 6 years imprisonment would be a fit and proper sentence to impose upon the appellant.
It follows that:
The appeal against the conviction is dismissed and the conviction is confirmed.
The appeal against the sentence is upheld. The sentence of 9 years imprisonment is set aside. The appellant is sentenced to 6 years imprisonment
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered at Maseru in open Court this 12th day of October 2001.
For Appellant - Mr. Fosa
For Crown - Mr. Lenono