R v Mothapela (Rev. Case No. 60/2003 C.R. No. 828/2003 Rev. Order No. 5/2003)

Media Neutral Citation: 
[2003] LSHC 64
Judgment Date: 
3 June, 2003

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IN THE HIGH COURT OF LESOTHO

In the matter between:


FUSI MOTHAPELA

V

REX


Review Case No. 60/2003 C.R. No. 828/2003

Review Order No. 5/2003 In Maseru District


ORDER ON REVIEW

(3rd June 2003)


This matter has been brought up for automatic review. The Accused has been charged with Culpable Homicide in that on or about the 24th July 2002 at or near Ha Borane in the district of Maseru, this Accused did, wrongfully and unlawfully and intentionally kill the Deceased Rapelang Leseo and commit the offence.


On the 24th April 2003 the Accused appeared before Magistrate Motinyane Esquire and Accused admitted guilt as charged. The result was the Public Prosecutor's statement of facts in terms of section 240(b) of the Criminal Procedure and Evidence Act 1981. Accused was thereafter sentenced to imprisonment for four (4) years with an option of a fine of M4.000.00. For this order the learned magistrate gave no reasons.


The said statement reveals the following: the Deceased found the Accused and one Moeketsi Ramokoatsi grazing some livestock. He asked the Accused why he (the Accused) had grazed his cattle at fields belonging to Deceased. He was at the same time attacking the Accused. Accused fled. Moeketsi tried to pacify but was hit by the


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deceased instead. Moeketsi also fled from the Deceased who then resumed his chase after the Accused. Deceased caught up with the Accused and delivered a blow which was pairied by the Accused. Accused then hit back the Deceased with a stick on the chest and on the head. Deceased fell and Accused left the scene to report at home.


Obviously, due to the brevity of the proceedings, not everything would be disclosed. For example the attitude of the Accused after the assault and immediate condition of the Deceased after the assault. This should also beg the question as to why the injuries seemed to be so extensive when the blows are said to have been two and not more, one being on the head.


This Court is worried by what appears to be the leniency of the sentence more especially against the background that the learned magistrate has not given his reasons for judgment, a stale of affairs or conduct of presiding officer which the High Court has complained about a number of times in these automatic review proceedings.


I note that sentence however remains pre-eminently in the discretion of the presiding officer. It has to be in a clearcut case based on a serious misdirection for example where a reviewing Judge would have to intervene and interfere with the sentence. It is that the learned magistrate gave no reason for his sentence. There are also marginal cases. This is one of them. But I have cause to worry about the sentence which the learned magistrate has imposed although I do not want to interfere with the content of the sentence.


The offence which have resulted in a death of a human being remains a serous one. It may be that there are circumstances which are shown in the Public Prosecutor's outline which persuaded the learned magistrate to impose this which on the surface is a lenient sentence. One of the things he could have considered is the age of the Accused. Other things include that he pleaded guilty. In addition he had no previous convictions.


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I have myself idenlified this aspect that the Deceased was the original aggressor and seems to have belligerently pursued the Accused for a considerable length of time hence the assault. 1 repeat that the learned magistrate should have stated these reasons and inform why the sentence had an option of a fine and why the whole of it should have been suspended.


I have also in reaching the conclusion consulted with the office of the Director of Public Prosecutions through Adv. Ms Shale who shared my view that the sentence should however not be interfered with. The result is that I substitute my own sentence of four (4) years imprisonment or payment of fine of M4,000.00.


T. Monapathi

Judge

3rd June 2003


Copy: The Magistrate Maseru

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