R v Motebe and Others (CRI/A/36-38/84)

Media Neutral Citation: 
[1984] LSCA 110
Judgment Date: 
14 September, 1984




In the Appeal of :







Filed by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 14th day of September 1984

On the 4th September 1984 I dismissed the appeal against the conviction of all the three appellants. The sentence of 18 months imposed on the 1st appellant wad reduced to 12 months. The sentence of 12 months imposed on the 2nd appellant was confirmed. The sentence of 6 strokes imposed on the 3rd appellant was confirmed but subject to a medical officer certifying that 3rd appellant is fit to withstand the punishment.

I said written reasons will be filed later and these now follow.

The three appellants (together with three others) were charged and convicted of unlawfully killing Lira Mabaleha (the deceased) who was suspected of having been involved in theft of some sheep. The upshot of this suspicion was that the deceased was seized from his cattle post initially by the three appellants and marched for one day and one night to be dealt with according to law. This was the deceased's last journey on earth because he died the following day from intracranial haemorrhage. He had multiple abrasions and bruises over the chest arms and thighs. The three appellants were joined by several persons (apart from three who were charged with them) and the evidence is that jungle law took over and no one of


these erstwhile people paused to think that the deceased might not reach his destination alive if he was to be continuously beaten. Each of the three appellants was seen assaulting the deceased at one time or the other. There was no evidence as to who of the appellants (or indeed of the others charged with them) inflicted the fatal blow or blows.

There were two grounds of appeal, viz,

  1. That the appellants were not sufficiently identified.

  2. That there was no proof of "common purpose" (amongst the appellants and other accused persons) to cause the deceased's death by unlawful means.

The first ground depended on the trial magistrate's view of the witnesses credibility on this point. An appellate Court will not readily interfere when there are favourable conditions that make identification possible bearing in mind that some witnesses may be honest but mistaken. Here the conditions were most favourable not only because the incident took place during the day but also because it occurred throughout the day and it was the kind of crime where concealment of its occurrence was not on the mind of its perpetrators at all. Many people unfortunately believe that they are entitled, if not to kill a thief, at least to punish him, not caring whether or not the authorities will prosecute -indeed, many believe that there will be no grounds for prosecution and there is therefore no effort to hide their identity. The appellants decided to keep silent.

The only thing that I need say on the second ground of appeal is that the essence of the crime of culpable homicide is the unlawful causing of a person's death. Gross negligence brings home the crime. Common purpose can arise at the spur of the moment. I do not think the appellants, subjectively speaking, wanted their victim to die, at any rate evidence on


this point is lacking, but they were all so grossly negligent in not foreseeing that a number of assaults (though individually may not have been severe) when inflicted collectively by a number of persons over a period of time, that death might occur from sheer exposure and exhaustion and guilt of the crime is established.

As I intimated earlier the appeal against conviction has been dismissed.

The magistrate gave no reasons why, in the manner of sentence, he distinguished between Appellant 1 and Appellant 2, though I can understand the sentence on Appellant 3 who was a youth of 17. The sentence on Appellant 1 is reduced to 12 months.

It has been brought to my notice that one of the convicted accused persons, Seputsoe Chekoane, has been released on bail "pending appeal". In fact there was no appeal pending and further even if there was, he did not prosecute his appeal, and made no appearance. He vanished into thin air. The ease with which our magistrates grant bail, even following upon conviction, is quite appalling, and those whose job it is to bring respect to the institution are sometimes the very persons who help to bring disgrace upon it. A warrant of arrest is issued against this accused and upon his arrest he should be committed to serve his sentence.

Any period of imprisonment served by the appellants before they were released on bail pending appeal will be taken into account in computing the period of imprisonment imposed upon them.


14 th September 1984

For Appellants : Mr. Ramodibedi

For Crown : Mr. Kabatsi