Appeal backfires



judges-hammer…as court increases businessman’s jail term for murder by five years

Tefo Tefo

A FORMER member of the Lesotho Defence Force, Nkoli Malia, should be regretting his decision to appeal an eight-year sentence for murder imposed by the High Court in December 2012.

This, after the Court of Appeal increased the jail term to 13 years on Friday last week.

Malia, who was now a public transport operator, had been found guilty of killing his son’s friend, Mosa Lepheana, on 12 December 2008 by Justice Lisebo Chaka-Makhooane.

But the former soldier appealed the ruling, arguing Justice Chaka-Makhooane had misdirected herself when imposing the sentence.

Justice Chaka-Makhooane had also sentenced Malia to four years in prison for assaulting his son’s other friend, Potlaki Pelesa.

However, Malia’s lawyer, Advocate Shale Shale, had submitted before the Court of Appeal that the High Court should have considered his client’s M100 000  compensation to the Lepheana family under what is commonly known in Sesotho custom as ‘raising the head’ of the deceased in the sentence.

Advocate Shale further argued the payment served as a sign of remorse, which therefore warranted a lesser sentence.

On the other hand, the prosecution filed a counter-appeal against the High Court judgment, arguing the sentence was too lenient and did not reflect the gravity of the matter.

In his address, Advocate Tsebiso Fuma said the High Court judge was wrong in concluding that Malia killed Lepheana with no direct intent.

However, the Court of Appeal on Friday last week increased the sentence on the grounds that Justice Chaka-Makhooane should have found Malia guilty of murder with direct intent to kill—an act called dolus directus in legal parlance.

“The trial judge misdirected herself by holding that the accused was guilty of murder on the basis of dolus eventualis as opposed to dolus directus, and the sentence of eight years was shockingly lenient in the circumstances of this case,” reads part of the judgment.

“In the result, the appeal is dismissed and the cross-appeal is upheld.

“The sentence of eight years imposed on the appellant by the court a quo on count 1 (murder) is set aside and substituted with a sentence of 12 years imprisonment.

“The sentences in court 2 (assault) and 3 (assault with intent to cause grievous bodily harm) are confirmed.

“The sentence of the court a quo is therefore altered to read:

“Count 1 (murder): The accused is sentenced to 12 years imprisonment.

“Count 2 (assault): The accused is sentenced to one year imprisonment.

“Count 3 (assault with intent to cause grievous bodily harm): The accused is sentenced to three years imprisonment.

“I also order that one year of the sentence on Count 2 and two years of the sentence on Count 3 are ordered to run concurrently with the 12 years in Count 1.

“The accused shall therefore serve an effective sentence of 13 years imprisonment,” ordered Chief Justice Nthomeng Majara, who was presiding over the case alongside Justices Phillip Musonda and Moses Hungwe Chinhengo.

Malia was charged with killing Lepheana after finding him in the company of friends, who included his son Tumelo, on 12 December 2008 near the Lesotho Bank Tower.

According to evidence given in the High Court, Tumelo took Malia’s minibus from his Ha-Leqele home without permission.

His father then went out in search of the vehicle which he suspected had been stolen.

Malia found the minibus parked in the Shoprite basement and fired into the air, resulting in the occupants, including his son, to flee. However, Lepheana and Pelesa did not run with the others.

Malia subsequently apprehended the duo, and as he drove the car away, shot Lepheana, evidence presented the court showed.

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