Mphutlane Kala V The Director of Public Prosecutions (C of A (CRI) 11/2022) [2025] LSCA 45 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CRI) 11/2022 In the matter between – MPHUTLANE KALA APPELLANT and THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT CORAM: KE MOSITO, P P MUSONDA, AJA J VAN DER WESTHUIZEN, AJA HEARD: 24 APRIL 2025 DELIVERED: 2 MAY 2025 FLYNOTE Criminal law—Murder—Self-defence—Constructive intent— Sentencing discretion—Appeal against conviction and sentence—Whether appellant acted in private defence— Whether sentence of 18 years’ imprisonment excessive. The appellant, a mechanic, was convicted of murder in the High Court following a fatal stabbing incident at a tavern, where the deceased had previously assaulted him. The appellant claimed he acted in self-defence. The High Court found that after the assault had subsided, the appellant had armed himself with a kitchen knife and stabbed the deceased in the back, resulting in death. He was sentenced to 18 years’ imprisonment. of defence On appeal, it was contended that the trial court rejected the a appellant’s disproportionately harsh sentence. The appellant’s case included claims of provocation, contrition, and an offer to compensate the deceased’s family in accordance with custom. The Crown opposed the appeal, citing the lack of an immediate threat and the deliberate nature of the attack. self-defence imposed and Held, dismissing the appeal: The facts clearly showed that the stabbing was not in response to an imminent or ongoing threat but a retaliatory act following a resolved altercation. The appellant’s version did not sustain the defence of private defence, and the High Court was justified in finding constructive intent. The sentence, though severe, reflected due consideration of mitigating and aggravating factors, and the absence of premeditation was properly weighed. No basis existed to interfere with either the conviction or sentence. Appeal dismissed. JUDGMENT J VAN DER WESTHUIZEN, AJA: Introduction [1] One remarkable aspect of this appeal against the conviction of and sentence imposed on the appellant, Mr Mphutlane Kala, by Hungwe AJ in the High Court, is the opening paragraph of the appellant’s Heads of Argument: “Applicant is approaching the Honourable Court of Appeal with his head bowing down for having caused the death of the deceased. He is exceptionally sorry for their deal that was meant to be friendly and helpful to each other but not foreseeing that the day to end their friendship and separating in a painful manner where one would be sent to the mortuary and the other to an 18 year imprisonment. A factor in this equation is drunkenness.” Facts [2] The facts of this case are briefly summarised in the High Court’s judgment: “In this case the now deceased had engaged the accused, a mechanic, to fix his motor vehicle. Following a misunderstanding, the deceased … assaulted the accused who did not retaliate. The deceased was restrained by a witness. The matter appeared resolved. Later, the accused armed himself with a knife, came up to the unsuspecting deceased and fatally stabbed him in the back.” [3] The appellant’s version in his Heads of Argument is the following: “The deceased called the accused to help him when his car's engine would not start. After an exchange of batteries and several things, the car started. The accused drove away from the drinking place and disappeared for about one hour. The deceased was worried about the length of time the accused had taken without returning. When they met the deceased without asking for the delay, they assaulted the accused and left him bleeding. Failure by the deceased to get an explanation from the accused about his delay and the presence of the lady in his car was the beginning of this trouble. … No sober person would defend himself with a knife by aiming to inflict such a weapon on the buttocks of the deceased. The accused … told the court that he did not know the body part where he inflicted the knife on the deceased.” [4] Later in its judgment, the High Court states the common cause facts of the matter. These include that a police officer observed blood stains on the ground next to the tavern where the incident had taken place. Thereafter he saw the deceased’s body in the mortuary, with an open wound at the back just about the waist. A medical practitioner who did a post-mortem examination found a spinal 3 cm deep wound and concluded that the death had resulted from spino-cervical haemorrhage. High Court [5] As the accused in the High Court, the appellant was charged with murder in contravention of section 40(1) of the Penal Code Act 6 of 2021.” He pleaded not guilty. Conviction [6] According to the appellant, he acted in self-defence (also known as private defence). The High Court recorded and analysed the evidence led by the Crown, as well as the defence, in considerable detail. Thereafter, the law on self-defence is stated in the judgment. After applying the law to the facts of the case, the High Court concluded that the Crown had proven its case beyond a reasonable doubt and convicted the appellant of murder with constructive intent, as charged. Sentence [7] In the consideration of a sentence, the High Court took numerous mitigating and aggravating circumstances into account in almost three pages of the judgment. In favour of the appellant the judgment mentions that the appellant was a first offender. He was married, with a family he supported; and employed as a mechanic. [8] Furthermore, the High Court stated: “In his favour this Court takes into account the fact that Mr Molapo (on behalf of the appellant) indicated that the accused is willing to raise the head of the deceased as per the custom and laws of Lerotholi. He submitted that the deceased’s family had accepted this offer from the accused. On that basis, he urged this Court to impose a sentence … suspended for 5 years on condition of fulfilment of the payment of compensation.” [9] The High Court expressed the view that the undertaking had to be reduced to writing. After postponing the matter, the deed of settlement was announced as ready for signature. However, the Crown then indicated that they did not dispute the submission about the undertaking and its acceptance but could not enter into a settlement proposed by the defence, because the matter had not commenced on the basis that was being proposed. There was no initial settlement, according to the Crown. [10] Counsel for the defence then argued that the appellant was showing contrition and remorse. He had to be given the opportunity to make good his undertaking to the family, which included paying 50% of the deceased’s children’s school fees. The family would benefit from a wholly suspended sentence, so it was argued, with reference to Rex v Khotso Mapeshoane (CRI/T/73/2014). [11] The High Court found the submission “disingenuous”. In the matter referred to a plea bargain was reached and the accused convicted of culpable homicide. Furthermore, section 314 of the Criminal Procedure Act 7 of 1981 does not permit a suspended sentence in the case of a murder conviction. [12] In further considering an appropriate sentence, the High Court took into account that, after not immediately responding to the assault by the deceased, the appellant fetched a chef’s knife in a nearby room and went after the deceased. Then he stabbed the unsuspecting and defenceless man in the back. The attack was “heartless, cruel and heinous”. The intention to kill was clear. [13] The death penalty could be imposed for murder with constructive intent. However, there was no pre-planning of the attack. The appellant did not bring the knife with him to the tavern. The attack was motivated by a desire for “some sort of revenge”, after the deceased’s assault. The appellant’s conduct followed upon having “a few drinks prior to the incident”. However, the mitigating factors “do not detract from the monstrosity that this crime is”. The Court stated that a “message must be sent out that the Courts do value human life”. [14] The appellant was sentenced to 18 years' imprisonment. This Court Conviction [8] On appeal, the conviction was attacked on several points. “The Crown has failed to prove that the defence of the accused is not probable” – so it is stated in the Heads of Argument. Furthermore, it is argued that the Crown’s “version to conclude that the behaviour of the accused (the delay) was the cause of the trouble is wrong”. [9] In the appellant’s Heads of Argument it is also submitted that the High Court ignored “the fact that the deceased was blocking an escape route of appellant … (t)he Honourable judge failed to consider that when appellant stabbed the deceased at the back – it was that same back that was blocking the escape route of the appellant”. [10] Presumably as authority for his self-defence plea, the appellant attached a judgment by Hungwe AJ in the High Court (R v Ntabe Lephallo and two others CRI/T/0037/18). The judgment dealt with an alibi and evidence around identification though. It is not applicable to this case. [11] The respondent supported the High Court judgment. It handed in a judgment of this Court (Mputlane Kala v DPP C of A {CRI/11/2022), setting out the requirements for reliance on self- defence. Sentence [12] In his Grounds of Appeal the appellant submits that the very harsh sentence induced a sense of shock. The High Court did not sufficiently consider the mitigating factors. However, in his Heads of Argument it is stated that the appellant “is still mindful of the fact that this Court, usually, does not interfere with the sentence of the court a quo”. Consideration Conviction [13] Neither the well-known requirements of self-defence as a ground of justification, nor the evaluation of the evidence before the trial court need to be analysed. On the appellant’s own version of events he did not stab the deceased in self-defence. The attack on him was over. The fact that he fetched a knife and stabbed the deceased in the back is a proverbial textbook example of the absence of an immediate threat to life or limb. [14] There was simply no attack calling for or justifying a violent act of self-defence. The earlier assault, even if it was a provocation, does not justify his conduct. It may be relevant to sentencing. [15] The allegation that the deceased’s back blocked the escape route is astounding. One does not kill - or stab with a kitchen knife – the back of someone blocking your way. Furthermore, it is unclear why and from what there was an urgent need to escape at that stage. Sentence [16] The appellant correctly mentioned ([11] above) the reluctance of this Court (and indeed most courts of appeal) to interfere with a sentence imposed by a trial court. [17] The High Court duly considered mitigating and aggravating circumstances. The first - including the absence of advance planning, or premeditation, as well as the remorse shown - brought the sentence down from what it could have been for a murder of this kind. [18] The High Court correctly mentioned the need for a message to the community that the unjustified killing of a human being is no small matter. Backstabbing, in this very literal and bloody sense, is a serious crime. Conclusion [19] There is no reason to interfere with either the conviction or the sentence arrived at by the High Court. Order [20] The appeal is dismissed. __________________________________ J VAN DER WESTHUIZEN ACTING JUDGE OF APPEAL _____________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: I agree: _______________________ P MUSONDA ACTING JUDGE OF APPEAL FOR THE APPELLANT: ADV K LESUTHU ADV TA CHALLA FOR THE RESPONDENT: ADV M MAPESELA 9