R v Polisa (CRI/T 33 of 97) [2000] LSCA 25 (9 February 2000)

1 CRI/T/33/97 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e e n: R EX V T E B O HO P O L I SA S E N T E N CE Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 9th F e b r u a ry 2 0 00 In this case T e b o ho Polisa, the A c c u s e d, w as c h a r g ed with the m u r d er of Sekoala Sello. It w as said that in that u p on or a b o ut the 13th d ay of April 1 9 91 at or n e ar Hlotse in the district of Leribe the said A c c u s ed did wrongfully, unlawfully a nd intentionally kill a nd m u r d er the said Sekoala Sello. T h is m o r n i ng C o u n s el accepted an offer that a verdict of a lessor c r i me of C u l p a b le H o m i c i de be entered. In that the A c c u s ed could h a ve c o m m i t t ed the killing of the deceased negligently, n ot with the intention. T he C o u rt accepted the verdict a nd I accordingly recorded it as such. In terms of the C r i m i n al P r o c e d u re a nd Evidence A ct of 1981 there w as no need to s u m m a r i ze the evidence. I merely w o u ld h a ve observed that there w as a Preparatory Examination (PE) record held in these proceedings as a result of w h i ch the A c c u s ed w as to be indicted before the H i gh C o u rt by the decision of the Director of Public Prosecutions on the 14th A u g u st 1997. It is during this session of the H i gh C o u rt that this A c c u s ed person stood charged before this Court. After yesterday's p o s t p o n e m e nt we proceeded today a nd transacted as I h a ve already recorded. T h at P. E. record w o u ld s h ow that there w e re about twelve witnesses w h i ch includes PW 8 Maleabitsoa M a t s o so w h o se n a me will at least o n ce hereinafter. As after the verdict the accused gave in s w o rn evidence in mitigation a nd his w as the only evidence. T he accused stated that his life with his wife h ad not b e en a pleasant one. It w as a marriage characterized by drunkenness a nd adultery on the part of his wife. Indeed the family h ad m et as on four occasions about complaints regarding this misbehaviour of his wife. I am satisfied that the A c c u s ed h ad always b e en intent on not leaving his wife w ho w as h o w e v er a problematic wife. This is the marriage that has begot t wo teenage boys w ho the Accused says h ad effectively been g r o wn up by h im without his wife. A nd that h a p p e n ed to be the situation even u n d er n o r m al times of that kind of marriage w h i ch they lived in. A c c u s ed said that on the day preceding the 13th April 1991 he prepared himself to go on patrole about s o me stock theft investigation. This did not materialize because people with w h om he w as to investigate s o me South African police did not turn u p. V e ry late that day he c o me back to his h o me only to find that his wife w as not present. He accordingly went to sleep. M u ch later in the night his wife a nd Maleabitsoa h ad turned up at his h o me in such a w ay that his wife effectively entered his h o me but she disappeared later a nd then until the following day. It w as that m o r n i ng of the following d ay w h en then Accused attended at the place of Maleabitsoa. He said his intention w as to find out w a ys of getting to the place of o ne M a n k o p a ne for reasons to do with the p r o b l e ms of M a n k o p a n e. A c c u s ed suspected that his wife could be at that place. If I recall well it could h a ve been his wife or Maleabitsoa w ho w as related to M a n k o p a n e. W h at is important w as that Maleabitsoa's house w as a neighbouring house at w h i ch house he attended a nd spoke to Maleabitsoa about the whereabouts of his wife or particularly w h e re the place of M a n k o p a ne w o u ld be. He least suspected that his wife could be at the place of Maleabitsoa. W h en he h ad m o v ed a few paces a w ay f r om the door it d a w n ed on h im that the reply given to h im by Maleabitsoa could h a ve been very unsatisfactory. He suddenly turned back a nd then c a me into w h at is called a sitting r o om of that house. W h at struck h im m o st w as that having inspected o ne of the b e d r o o ms w h en he w as about to inspect the other then Maleabitsoa ran out. He w as intent on looking into that other r o om w h i ch he did. It w as then that he discovered that his wife w as actually having sexual intercourse with a m an u n k n o wn to him. T he details of this act w e re sordid e n o u gh I need not repeat any detail of h ow this w as carried out on this occasion. I am satisfied that it w as a horrible act that this Accused saw. It w as unsuspected a nd indeed he said he did not even suspect that his wife could be found in a ny of the r o o m s. T he A c c u s ed h ad said that he h ad b e en a r m ed with a small automatic 7.65 a r m. He also h ad a s j a m b ok a nd he w as prepared to go to his place at Likhakeng in the B u t ha Buthe district a nd h ad harnessed his horse at ready w h en then he m a de this discovery as I h a ve indicated. He described that all suddenly w e nt black a nd he b e c a me very confused. He found himself holding an automatic g un with he shot at the gentleman w h om he did not k n o w. It suffices to indicate that it w as not less than five g un w o u n ds found on the deceased. T h is the A c c u s ed explained by w ay of the position in w h i ch the d e c e a s ed w a s. T he provocation a nd a b s e n ce of control on his part a nd the action of this g un w h i ch he said it w as an a u t o m a t ic o ne a nd that the deceased w as so positioned that it w as able for the g un to r e a ch out o ne h im at various parts of the b o d y. It is i m p o r t a nt that i m m e d i a t e ly the A c c u s ed w e nt to report himself at the police station. T h is g un w as ultimately p ut in the h a n ds of the police. Later on he w e nt b a ck to w o rk after a f ew days. T h e re m u st h a ve b e en the n o r m al investigation a nd w h i ch m u st h a ve resulted in the holding of that P. E. in 1 9 9 1. He said further that in b e t w e en that time of the c h a r ge a nd this time w h en he a p p e a r ed before C o u rt he h ad retired f r om the Police F o r c e. He h ad also fallen off a horse a nd received serious injuries. It is these injuries that he says are likely to lead to disability on his part in that they t o u c h ed on the spine or resulted in s o me paralysis w h i ch although c u r ed b ut the prospects are n ot so g o od for the future. A nd he described the kind of t r a u ma he has g o ne t h r o u gh as the result of this case. T he m a n n er in w h i ch it should h a ve affected h im mentally a nd affected h im in his relations with other people. He is n ot very h a p py a b o ut himself. A c c u s ed s p o ke a b o ut the fact that he m a de attempts to m a ke a m e n ds with his wife indeed they reconciled a nd lived together for s o m e t i m e. O ne of the things that this A c c u s ed said w as that after his wife lost h er e m p l o y m e nt as a nurse he f o u nd w o rk for h er at o ne hospital or clinic. It w as s o o n er rather t h an later that his wife disappeared, deserted that job. Ultimately she w as dismissed a nd the latter he c a me across by accident he h ad n ot b e en i n f o r m ed by his wife. I b e c a me satisfied that the A c c u s ed is the o ne p a r e nt w ho virtually reared these t wo children of the family. It touches me that this could h a ve b e en the position t h r o u g h o ut the w h o le married life of the A c c u s ed a nd his wife. A nd w h en reference w as m a de to the fact that the last child a p p e a r ed to be a late starter at school, this A c c u s ed attributes this to the discomfort a nd the discord in the family. I am m i n d f ul of this aspect of w h at c an generally be said the b ad health of this A c c u s ed p e r s on presently. I believe w h at he says w h en he says he is in b ad health that as a result of w h at he h ad g o ne t h r o u g h. T h is could be not only a perception b ut a condition that is in h i m. I n e ed n ot e m p h a s i se the p r o v o c a t i on that the a c c u s ed p e r s on w e nt through. It s e e ms to s p e ak for itself. W h at c o n c e r ns me is the sentence that I m u st i m p o se on the g e n t l e m a n. T h is case is an old case. It h as to do with o v er nine years since the date of the actual incident itself. I am satisfied w h en he says that the delay in prosecuting the case h ad always c o n c e r n ed h i m. Sentencing is a discretionary matter. It h as to do with a choice f r om various options as to an appropriate sentence. I w a r n ed m y s e lf that I m ay n ot i m p o se a sentence that will destroy an already w e a k e n ed m a n. I am i n f o r m ed that he h as no previous conviction a nd he is an offender. T h is m an w as a p o l i c e m an a nd he c o m m i t t ed this offence of killing civilian while he w as a p o l i c e m a n. J u d g es of this C o u rt h a ve w a r n ed that cases s u ch as this o ne that is w h e re p o l i c e m en are perpetrators of serious offences m u st be taken in a serious light. It is e v en m o re serious w h en a p o l i c e m an c o m m i ts an offence o v er a civilian. It m u st be taken seriously a nd this the C o u rt m u st s h ow in its p u n i s h m e n t. I also h a ve a choice w h e t h er this m an is sentenced to a fine or is sentenced to i m p r i s o n m e n t. T he statement that a first offender o u g ht n ot to be sent to i m p r i s o n m e nt is n ot a fixed rule. It h as to d e p e nd on the seriousness of the offence. I accepted that the fear that a convicted p e r s on w ho goes to prison h as a risk of being c o n t a m i n a t ed is real. B ut n ow prison is intended to rehabilitate a convicted person. T h at is the intention. T he b a l a n ce w h i ch is tilted by the seriousness of an offence will indicate w h e t h er a m an ought to go to prison. Indeed there are theories f r om criminologists that sending a m an out of his c o m m u n i ty is in itself dangerous. So that if there is s o me p u n i s h m e nt w h i ch a convicted person c an serve in his c o m m u n i ty so m u ch the better. In this case the Accused, as in other like cases, remains with a plea that he be allowed to g r ow up these children of his. It m a k es sense but then o ne has to ask another question: " W h at about that m an w ho has lost his life a nd w h o se children are without a m e n t o r? It is because that m an will not c o me back. He has g o ne forever. I have agonised over the p r o b l em of the sentence in this case. It has worried me because m o st things speak for the accused person except this o ne of the n u m b er of g un w o u n ds w h i ch caused the death of the deceased. B ut o ne cannot afford (without challenging evidence) to be an armchair critic a nd to prescribe w h at the Accused should have d o ne finding his wife with a m an in those circumstances. Indeed w h en he spoke about this aspect I w as satisfied that it touched h im very m u c h. It called for s y m p a t hy even from the hardest of hearts. B ut I m u st punish this accused person. I am saying I must. M r. Polisa stand up. I sentence y ou to imprisonment for five (5) years but the whole of this I suspend for three (3) years on condition that y ou will not c o m m it a ny offence involving violence. I thought about this very seriously. I thought y ou deserved a punishment that ought to be suspended. To do otherwise w o u ld destroy you. T he history of your life with your wife speaks volumes. I forgot to ask y ou o ne question as to w hy y ou did not leave y o ur wife even before these things h a p p e n ed a nd even after she caused y ou this trouble. W hy didn't y ou leave y o ur wife M r. Polisa w h en she w as causing y ou so m u ch trouble? Accused a n s w e r ed that he h ad loved his wife a nd his late father h ad h ad very high h o p es a b o ut the marriage. It h ad s h o w ed in the w ay his father prepared for the m a r r i a ge a nd sacrificed in paying out a large n u m b er of cattle for bohali. T M o n a p a t hi J u d ge F or C r o wn : Mr R a n t s a ne F or A c c u s ed : M rs K o t e lo