Rex v Tumelo Phahlang (CRI/T/0119/2024) [2025] LSHC 81 (27 March 2025)

# Rex v Tumelo Phahlang (CRI/T/0119/2024) [2025] LSHC 81 (27 March 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/81/eng@2025-03-27) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/81/eng@2025-03-27) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/81/eng@2025-03-27) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/81/eng@2025-03-27) [ __](mailto:?subject=Take a look at this document from LesLII: Rex v Tumelo Phahlang \(CRI/T/0119/2024\) \[2025\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/81/eng@2025-03-27) [ Download PDF (385.4 KB) ](/akn/ls/judgment/lshc/2025/81/eng@2025-03-27/source) Report a problem __ * Share * [ Download PDF (385.4 KB) ](/akn/ls/judgment/lshc/2025/81/eng@2025-03-27/source) * * * * * Report a problem __ ##### Rex v Tumelo Phahlang (CRI/T/0119/2024) [2025] LSHC 81 (27 March 2025) Copy citation * __Document detail * __Related documents Citation Rex v Tumelo Phahlang (CRI/T/0119/2024) [2025] LSHC 81 (27 March 2025) Copy Media Neutral Citation [2025] LSHC 81 Copy Hearing date 25 March 2025 Court [High Court](/judgments/LSHC/) Case number CRI/T/0119/2024 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 27 March 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Criminal law](/taxonomy/case-indexes/case-indexes-refugees-criminal-law) * [Murder](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-murder) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** **CRI/T/0119/2024** In the matter between **REX CROWN** **** AND **TUMELO PHAHLANG ACCUSED** _Neutral Citation_ : Rex vs. Tumelo Phahlang [2025] LSHC 81 CRIM (27th March 2025) **CORAM** : T.J. MOKOKO J **HEARD** : 25/03/2025 **DELIVERED** : 27/03/2025 **__SUMMARY__** _Murder – The defence pleaded the defence of Self-defence – The defence of self-defence failed because the accused attacked the deceased unlawfully. The accused was the aggressor._ **__ANNOTATIONS__** __Cited Cases__ 1. _Bobe v The State_ _[2006] 1 BLR 254 (CA)_ 2. _Lefaso V Rex_ _LAC 1990- 1994 44_ 3. _Letuka v Rex_ _LAC 1995- 1999 405_ 4. _Linake v Rex_ _LAC (2009 – 2010)_ 5. _Mohlalisi and Others_ _LAC (1980 – 1984) 110_ 6. _R v Attwood_ _1946 AD 331_ 7. _S v Mafela_ _1980 (3) SA 825 (A)_ 8. _S v Ngobeni_ _1992 (1) SACR 628 (C)_ 9. _S v Ntuli_ _1975 (1) SA 429 (A)_ 10. _S v Petrus_ _1969 (4) SA 85 (A)_ 11. _S v Prins_ _1990 (1) SACR 426 (A)_ __Statutes__ 1. _Criminal Procedure and Evidence Act 1981_ 2. _Penal Code Act 2010_ **JUDGMENT** **INTRODUCTION** [1] The accused was charged with contravening the provisions of _section 40 (1) of the Penal Code Act 2010, read with section 40 (2) thereof_. In that upon or about the 28th August 2015, and at or near Lower Moyeni in the district of Quthing, the accused did perform an unlawful act or omission, with the intention of causing the death of Itumeleng Nketsi, the said accused did commit the offence of the murder of the deceased Itumeleng Nketsi, such death resulting from his act or omission. [2] The accused pleaded not guilty to the charge, and his counsel stated that this plea was made in accordance with his instructions. The Crown did not accept the plea, so they presented evidence from Crown witnesses. **CROWN’S CASE** **PW1- Moshe Rase** [3] He testified that he resides in Botha-Bothe. In 2015, he was living in Quthing district. He stated that he knows the accused well, as they grew up together and attended the same primary school. On 28 August 2015, around 11:30 pm, he was at an Italian public bar where he works as a watchman. He noticed a conflict between the accused and the deceased, so he approached them and took them outside the bar. He attempted to intervene in the altercation but was unsuccessful. He then told both men to leave the bar. While continuing with his duties, he observed the accused pushing the deceased into the road. [4] He approached the scene, but he couldn't cross the road immediately due to traffic. The accused and the deceased were on the other side, and he noticed that the accused was wielding a knife. The accused attempted to stab the deceased, who defended himself by blocking the attack with a beer bottle. After this initial confrontation, the accused retreated, leading the deceased to relax, believing the attack had ceased. However, the accused quickly advanced again and stabbed the deceased, causing him to fall. When he arrived at the scene, he observed that the deceased was struggling to breathe. [5] He reported the incident to the bar owner, who then detained the accused and handed him over to the police. The police took both the accused and the deceased away. The witness clarified that the accused was in a fighting mood; when the witness intervened, the accused threatened to attack him. The witness further mentioned that after the deceased blocked the first blow, the accused was approximately 1.5 meters away from the deceased. He observed that the accused stabbed the deceased in the chest, above the breast, though he couldn't recall which side it was on. He also added that after separating the accused and the deceased, the accused still appeared to be in a fighting spirit. [6] During cross-examination, the witness was asked if he saw who started the fight. He stated that, based on his observation, the accused was the one who initiated the altercation outside the bar. When asked whether he could hear the conversation between the accused and the deceased, the witness replied that he could not hear it due to the loud music. [7] The witness confirmed that the accused continued the fight as he pushed the deceased into the road. When asked what the deceased was holding, the witness stated that he had a beer bottle. The witness was also asked where he was when the stabbing occurred, to which he replied that he was on the other side of the road, waiting for traffic to pass. It was suggested to him that the passing vehicle obstructed his view. However, the witness was adamant that he saw the accused stabbing the deceased with a knife. The defence argued that the accused acted in self-defence, but the witness denied that the accused had acted in self-defence. [8] The Court requested that the witness explain how he was able to observe the events, given that the incident occurred at night. The witness responded that he was able to see what happened because there were bright lights at the bar, which provided clear visibility. **PW2- Mpho Leseo** [9] He testified that he is a member of the Lesotho Mounted Police Service (LMPS). In October 2015, he visited the crime scene located next to an Italian public bar. During his visit, he observed that the crime scene had been contaminated, as the incident had occurred two months before his visit. [10] During cross-examination, the witness was asked how long it took him to reach the crime scene. He responded that he visited the scene in October 2015, while the incident had occurred in August 2015. When questioned about the knife, the witness stated that other Crown witnesses had discovered it. **PW3- Thato Makae** [11] In 2015, he was living in Masitise, located in the Quthing district. On 28 August 2015, he was at a tavern when he witnessed a conflict between the accused and the deceased. He was standing at the doorstep when he noticed an altercation between them. The accused called the deceased over, inviting him to approach. People intervened and escorted the accused across the road. However, the accused eventually crossed back to the side of the deceased. As he approached, he saw that the deceased had sustained a stab wound. He was able to see the events unfold clearly due to the bright lights outside the bar. Later, the police arrived at the scene. [12] During cross-examination, the witness was asked if he knew who started the fight. The witness responded that he did not know. When asked whether both the accused and the deceased were in a fighting mood, the witness stated that they both were. The witness was then questioned about whether he saw the accused rush toward the deceased. He replied that he did not see this but noted that they were close to each other. [13] The witness was also asked if he observed the accused retreat and then approach the deceased again. He answered that this was not the case. When asked if he saw when the accused pulled out the knife, the witness said he did not see that either. He explained that the accused was standing between himself and the deceased, which prevented him from seeing the accused's actions. He added that as soon as the accused left the deceased, the deceased fell. The witness noted that the deceased had a wound on the chest area, below the rib cage. [14] The court requested that the witness clarify his statement regarding how the accused obstructed the view of the deceased. The witness explained that the accused stood directly in front of them, blocking their line of sight to the deceased. However, as soon as the accused moved away, the witness saw the deceased fall. **PW4- Inspector Khali** [15] He testified that he is a member of the Lesotho Mounted Police Service (LMPS). In 2015, he was stationed at the Quthing Police Station. On 28 August 2015, while on patrol along Lower Moyeni, he came across an Italian public bar where people had gathered. A man named Keletsi approached him and reported that someone had been stabbed with a knife. Keletsi then led him to the crime scene. Afterward, they arrested the accused, and he took the deceased to the hospital. Later, the doctor informed him that the deceased had died. He cautioned and warned the accused, charging him with murder. He noted that there was blood on the right side of the deceased's chest, who had fallen on his back at the crime scene. [16] During cross-examination, the witness was asked if he had searched the deceased, and he replied that he had not. **ADMISSIONS** [17] The defence admitted the following statements and the post-mortem report in terms of _Section 273(1) ofthe Criminal Procedure and Evidence Act 1981 (the Act). Section 273(1) of the Act_ provides that _an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue, and the admission shall be sufficient evidence of that fact_. [18] In his identifying statement, **Thuso Nketsi** stated that on 03/09/2015, he identified the body of the deceased before the doctor performed a post-mortem examination. He was in the company of ‘Mamotebang Masela. He noted that the deceased had a wound above his right breast. The deceased was the son of his uncle. The statement was marked as exhibit "A". [19] In her statement, **Mamotebang Maseela** mentioned that on 3 September 2015, she identified the body of the deceased before the doctor conducted the post-mortem examination. She noted that there was a wound on the right side, above the breast. The deceased was her brother's son. This statement was marked as Exhibit "C". [20] In his report, **Sergeant Mohale** stated that he is a member of the Lesotho Mounted Police Service. On 29 August 2015, he introduced himself to the accused, cautioned him, and requested his explanation. The accused voluntarily took Sergeant Mohale to Lower Moyeni to make a pointing out. When they arrived there, the accused identified a knife and retrieved it from a dustbin located near the Cheapest supermarket. The knife was a brown and silver jambo knife, which he then seized. This report was marked as exhibit "C". [21] The **LMPS 12** shows a stainless-steel knife with a brown wooden handle. The LMPS 12 was marked exhibit “D”. The post-mortem report shows that death was due to assault. Remarks are high right precordial stab wound, minimal buccal bleed- patient seems to have fallen head backwards- occipital contusion. External Appearance – right 3rd midline intercostal stab wound tangential 2.5 cm penetrative and deep- blood coming out. Mouth-buccal bleed. Large blood-vessel laceration with bleeding. Pericardium Pericardial sac and heart- hemopericardium. Larynx, Trachea and Bronchi- right side wound. Pleurae, Pleural sac, and lungs- Right side. Right- Ileum wound and haemothorax. The post-mortem report was handed in marked exhibit “E”. The Crown then closed its case. **DEFENCE’S CASE** **DW1 - ‘Matumelo Phahlang** [22] She testified that she resides at Cocobe, Quthing District, and that she did not know the deceased personally. However, she is familiar with the deceased’s grandmother, who lives in Motse-Mocha. There was an ongoing conflict between the boys from Cocobe and those from Motse-Mocha, which stemmed from rivalry over soccer. After the passing of the deceased, she reached out to the deceased’s family. She agreed to help cover the burial expenses by purchasing a casket and a sheep. [23] During the cross-examination, it was suggested to the witness she agreed to contribute to the burial of the deceased because the accused had told her he was responsible for the deceased's death. The witness stated that she only agreed after asking the accused for clarification about what had happened. It was suggested to the witness that the accused, after being separated from the deceased, returned to the deceased and stabbed him. The witness replied that he knew nothing about that. It was suggested to the witness that she contributed to the funeral of the deceased because the accused felt guilty about the death. The witness agreed and added that the accused acknowledged his mistake. **DW2 – Tumelo Phahlang** [24] He testified that he lives at Cocobe, located in the Quthing district. In 2015, he worked as a taxi driver. On 28 August 2015, he was at the Golden Hock bar with Nteboheleng Maoeng and Thandeka, who has since passed away, drinking alcoholic beverages. The deceased complained that the accused had left his village of Cocobe and travelled to Motse-Mocha to take their girlfriends. This conflict with the deceased prompted him to leave that location for the Italian Public Bar. While at the Italian bar, he bought some chips for Thandeka at the restaurant before entering the bar. Shortly after, Thandeka came to him and reported that the deceased had thrown her chips away. Thandeka then joined him inside the bar, and he purchased two quarts of beer. The deceased later arrived and spilled the accused's beer. [25] When he asked the deceased why he had spilled his beer, the deceased replied that Cocobe boys were not supposed to be comfortable. He demanded that the deceased replace his two quarts of beer. After that, he stood up and bought another bottle. The deceased grabbed his beer bottle, but then the accused took it back, which sparked an altercation between them. They went outside, and the deceased said he would give the accused his mother. The deceased grabbed the accused by his clothes and shook him. They then crossed the road to the other side, where someone intervened. Although the accused initially left, he returned to the deceased when the latter claimed he would catch the accused when he passed the Golden Hock bar. [26] The deceased attempted to hit him with a beer bottle, but he pushed him away. The deceased then rushed at him with his hand in his back pocket. He produced a knife and stabbed the deceased. After the incident, he returned to the deceased, who was lying in the middle of the road. He explained that he did not throw the knife in the dustbin; instead, he placed it down and stood next to it. He was unsure how the knife had ended up in the dustbin. At that time, he noted that there was no traffic on Italian Bar Road. When the police arrived, they found him at the crime scene, and he informed them that he had stabbed the deceased. The police arrested him and took the deceased to the hospital. He denied calling the deceased to come to him repeatedly. [27] During cross-examination, the witness was asked why he did not challenge PW1’s evidence that he intervened between the accused and the deceased. The witness responded that since it was his first time in court, he did not know how to contest that claim. The witness was asked why he did not dispute PW1’s evidence that the deceased had blocked the accused’s attempt to stab him with the knife. The witness replied that he did not know how to challenge that piece of evidence. The witness acknowledged during cross-examination that he did not dispute PW1’s evidence regarding the accused's threat when he attempted to intervene in the dispute. During cross-examination, the witness acknowledged returning to the deceased to reprimand him for insults. During cross-examination, the witness was asked if he felt safe upon returning to the deceased, and he confirmed that he did not feel in danger. During the cross-examination, the witness acknowledged that he did not inform the crown witnesses that the deceased had put his hand in the back pocket. The crown counsel then suggested to the witness that this was untrue, which is why it was not presented to the crown witnesses. In response, the witness stated that he was uncertain about how court proceedings are conducted. **DW3 – Nteboheleng Thetela** [28] She testified that in 2015, she lived in Cocobe in the Quthing district. She knows the accused because they are neighbours. On 28 August 2015, she was at the Golden Hock Bar with the accused and Thandeka. Later, the deceased arrived and began insulting the accused. He suggested that they should leave the area. They then went to an Italian bar and entered the restaurant. The accused bought some chips, and they sat down to eat. Shortly after, the deceased walked into the restaurant. He pushed their food away, displayed his money, and said he was not a worthless person. The accused mocked the deceased by referring to him as a taxi conductor. The deceased held Thandeka, and when the accused saw that, he asked what was happening, as he was in a romantic relationship with her. They went into the bar, purchased some beer, and sat down together. The deceased followed them into the bar, and when the accused bent down to pick up his beer bottle, the deceased stepped on his hand. After this, the accused and the deceased went outside, but shortly thereafter, they heard that the deceased had fallen outside. She clarified that the deceased and the accused were holding hands when they went outside and were not in a fighting mood. [29] During the cross-examination, the witness confirmed that the accused and the deceased had gone outside the bar while holding hands. When it was suggested to the witness that the accused was not in any danger, she responded that she did not know. It was suggested to the witness that the deceased posed no danger to the accused, and the witness agreed, adding that the deceased had insulted the accused. **SUBMISSIONS** [30] Adv. Nkoe, the Crown Counsel submitted that there was no unlawful attack on the accused by the deceased. She submitted that there was evidence that people intervened between the accused and the deceased, and the accused was successfully separated from the deceased. However, the accused returned to the deceased and stabbed him with the knife. She submitted that the defence did not challenge the evidence of PW1 that after the accused had been separated from the deceased, he rushed to the deceased and stabbed him with the knife. She argued that the deceased did not pose any danger to the accused at that time. She submitted further that the accused testified that he was separated from the accused, but while he was in the middle of the road he returned to the deceased. She argued that the accused returned to the deceased with the sole intention of killing the deceased, and his attack on the deceased was not justified. Adv. Nkoe submitted further that PW3 testified that the accused called the deceased to him repeatedly. She submitted that PW3 testified that people intervened and separated the accused by taking him to the other side of the road, but the accused crossed the road to the side where the deceased was and stabbed him with the knife. She submitted that the deceased did not pose any danger to the accused thus justifying the attack on the deceased. She submitted that the accused had been separated from the deceased, therefore there was no reason for him to have returned to the deceased who was on the other side of the road. She argued that the accused chose to return to the deceased to attack him. Adv. Nkoe submitted that the accused attacked the deceased with a knife and applied a considerable force by inflicting a fatal wound on the delicate area of the body. She argued that the accused was not expecting the attack as they had just been separated. Lastly, she submitted that PW1 testified that the deceased blocked the accused’s first blow with the beer bottle. She argued that the accused’s conduct shows that he wanted to fight the deceased. However, after they were separated the accused rushed to the deceased and stabbed him. She submitted that this piece of evidence shows that the accused was the aggressor. [31] Adv. Molapo, the defence Counsel submitted that the accused reasonably believed that his life was in danger, therefore acted in self-defence. He submitted that the court should consider the evidence that the deceased insulted the accused at Golden Hock bar, which caused the accused and his company to leave Golden Hock for Italian bar. He submitted further that later the deceased followed the accused and his company to Italian bar, where he spilled the accused’s beer. Adv. Molapo submitted that the deceased’s actions towards the accused justified self-defence. He submitted that the accused stabbed the accused with the knife, because the accused saw the deceased putting his hand in the back pocket, and he believed that the deceased was retrieving a knife. He submitted that the accused was justified in acting in self-defence. He further submitted that PW3 did not witness how the stabbing occurred. He, therefore, submitted that the accused should be acquitted. **THE LAW** [32]_Section 20. (1) of the Penal Code Act, 2010_ provides that: _No person shall be criminally responsible for the use of force in repelling an unlawful attack-_ 1. _Upon himself or herself or another person if-_ 1. _It was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ 2. _The degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances._ 2. _Upon his or her property or the property of another provided that the means he or she chooses and the degree of force he or she uses in so doing are reasonable in the circumstances._ [33] For the defense of self-defense to be successful, three conditions must be met. First, there must be an unlawful attack on the accused. Second, in the circumstances at the time, it was not reasonable for the accused to retreat. Lastly, the degree of force used by the accused must have been reasonably necessary to prevent the attack. I believe these are the requirements outlined in _section 20 (1) of the Penal Code Act_. [34] Be that as it may the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex**[1]**,_ **where **Ramodibedi P** had this to say: _“At this stage I should like to repeat what l said in the Court of Appeal of Botswana in the case of**Bobe v The State******[2]******,** (**Grosskopf JA** and **Lord Coulsfield JA** concurring) remarked”_: _“Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility, then the accused is entitled to an acquittal.**See S v Ntuli**[3]**.**_ _As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker._ 2. _The means he used in defending himself were not excessive in relation to the danger._ 3. _And the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.**See R v Attwood**[4]**.**_ [35] Where the accused raises the defence of self-defence, the Crown bears onus to negative that defence beyond reasonable doubt. According to the cases referred to above, the accused must show that he was unlawfully attacked and had reasonable grounds for believing that he was in danger, he did not use excessive means in averting the attack, and the means he used were the only or least dangerous means he used to avoid the danger. [36] The court must consider all evidence presented to determine if the deceased unlawfully attacked the accused, thereby justifying the accused's act of self-defence. **ANALYSIS AND DISCUSSION** [37] PW1 testified that he saw the accused push the deceased into the road. After that, both the accused and the deceased crossed to the other side of the road. He further observed the accused attempt to stab the deceased with a knife, but the deceased was able to block the attack with a beer bottle. The witness stated that the accused then retreated. Shortly afterward, the accused charged at the deceased and stabbed him with the knife. According to the witness, after the accused retreated, the deceased relaxed, and it was at that moment that the accused rushed back and stabbed him. [38] The testimony of PW1 does not indicate that the deceased ever attacked or attempted to attack the accused at any time. Instead, PW1's evidence shows that the accused attempted to stab the deceased with a knife. Fortunately, the deceased was able to block the attack using a beer bottle. This evidence clearly suggests that the accused was the aggressor at that moment. [39] Additionally, there is evidence that the accused retreated after the initial attempt. There is no indication that the deceased followed the accused or posed any danger to him during this time. However, it is evident that the accused then rushed back at the deceased to inflict the fatal injury. [40] It is important to note that the defence did not dispute PW1’s assertion that the accused tried to stab the deceased, who successfully blocked the blow. Furthermore, the defence also did not contest PW1's account of the accused retreating before suddenly rushing back to stab the deceased. [41] The evidence presented by PW3 indicates that the accused was initially separated from the deceased and taken to the other side of the road. However, the accused returned to the deceased, and after he left, the deceased fell. It is undisputed that the accused was indeed separated from the deceased and then returned to him, and following the accused's departure, the deceased fell. PW3's testimony does not suggest that the deceased posed any threat to the accused. The court details how the accused approached the deceased again, and as soon as the accused left, the deceased collapsed. The deceased fell because the accused had stabbed him with a knife. At that time, no one else was near the deceased except for the accused. There is no evidence to suggest that the deceased ever attacked the accused. The evidence points to the accused returning to the deceased after being separated to inflict the fatal stab wound. [42] The accused stated that someone had separated him from the deceased, prompting him to cross to the other side of the road. The deceased then mentioned that he would catch up with him later when he passed Golden Hock on his way home. The accused returned to the deceased, who then attempted to hit him with a beer bottle. In response, the accused pushed the deceased away. The deceased then rushed at him, reaching into his back pocket. The accused, fearing for his safety, took out his knife and stabbed the deceased. [43] The accused does not dispute that someone separated him from the deceased, leading him to cross to the other side of the road. He claims he returned to the deceased because the deceased said he would catch him later. It is a common understanding that the accused and the deceased had been separated and that the accused had crossed to the other side of the road. At this point, there is no evidence that the deceased followed the accused across the road to confront him. Instead, the evidence indicates that the accused is the one who returned to the side of the road where the deceased was and then stabbed him. [44] During the cross-examination of the crown witnesses, the defence did not challenge any of them with the assertion that the deceased attempted to strike the accused with a beer bottle or that the deceased approached the accused with his hand in his back pocket. Witnesses PW1 and PW3 did not claim that the deceased tried to hit the accused with the beer bottle or rushed at him in any threatening manner. This version of events was first introduced when the accused took the witness stand. The defence did not allow the court to hear the reactions of the crown witnesses to this evidence, as it was never presented to them during their testimonies. Consequently, the court finds it reasonable to conclude that if this had indeed been the accused's account, it would have been put to all the crown witnesses, mainly because the accused's defence was based on a claim of self-defence. The fact that this version was not mentioned to any of the crown witnesses suggests that it was an afterthought, created as the trial progressed. [45] The evidence indicates that the deceased and the accused were initially separated, with the accused moving to the other side of the road. However, the accused then returned to the deceased and stabbed him with a knife. There is uncontested evidence that the accused attempted to stab the deceased, but the deceased successfully blocked that blow. Shortly after this, the accused charged at the deceased and stabbed him. There is no evidence to suggest that the deceased posed any threat to the accused; rather, it was the accused who, after retreating, chose to return and attack the deceased. Overall, the evidence shows that the accused was the aggressor, unlawfully and intentionally assaulting the deceased, who did not pose any danger to him. [46] Therefore, I conclude that the crown has discharged its onus of negating the defence of self-defence beyond reasonable doubt. The accused is accordingly found guilty of murder. My Assessors Agree. **SENTENCING** [47] _Section 296 (1) of the Criminal Procedure and Evidence Act 1981_ , provides that, where the High Court convicts a person of murder, it shall state whether in its opinion there are extenuating circumstances and if it is of the opinion that there are such circumstances, it may specify them. _Section 296 (2)_ provides that in deciding whether there are any extenuating circumstances, the High Court shall take into consideration the standards of behaviour of an ordinary person of class of the community to which the accused belongs. [48] In the case of **_Lefaso V Rex_**[5], **Schutz P.** explained extenuating circumstances as follows: “ _Extenuating circumstances are such as reduce the moral, if not the legal guilt of the accused. The onus of proving them on a balance of probability rests on the accused_ ”. [49] In **_Letuka v Rex_**[6], **Steyn P** stated that extenuating circumstances are any facts associated with the commission of the crime, whose effect in the minds of reasonable persons is to reduce the moral blameworthiness of the accused, as distinct from the accused’s legal culpability[7]. [50] The Court of Appeal in the **_Letuka case_** (_supra_) stated that there are ample authorities for the proposition that the subjective state of mind of the accused is certainly one factor which can be considered in determining whether extenuating circumstances are present. Moreover, it is one that stretches to each and every factor which may throw light on what went on in the accused’s mind. See **_S v Mafela_**[8] and **_S v Petrus_**[9]. [51] The Court of Appeal in the **_Letuka case_** (_supra_) remarked further that, each factor may individually have little weight taken cumulatively however, they may well tip the scale in an accused’s favour when evaluated against the aggravating features. Factors which can be considered include the following; youth, liquor, emotional conflict, the nature of the motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part on the commission of the murder, absence of _dolus directus_ (**_S v Ngobeni_**[10], **_Mohlalisi and Others_**[11]), belief in witchcraft, absence of premeditation or planning, heavy confrontation between an accused and the deceased before murder, rage of an accused (See **_S v Prins_**[12]). [52] In the **_Letuka case_** (_supra_) **Steyn P**. stated that: “ _It is trite that mere presence of one of these features do not axiomatically mean that they are extenuating in relation to the commission of the crime in casu. Each factor must be weighed and assessed in the light of the evidence as a whole and its relevance to the conduct and the state of mind of the accused, as well as cumulatively with any other factor associated with the commission of the offence**[13]**”._ [53] Based on the cases referred to above, I conclude that there are extenuating circumstances in favour of the accused person. The following are the extenuating circumstances: (a) The accused had been drinking alcohol on the fateful night. (b) The accused was provoked by the fact that the deceased spilled his beer and chips. (c) There was a conflict between the accused and the deceased before the murder. (d) The accused was a 20-year-old youth at the time of this offense. (e) There was a lack of premeditation. (f) There was a heavy confrontation between the accused and the deceased before the murder. (g) The accused acted impulsively. [54] The Court has now reached the most challenging stage of the trial, which is determining the appropriate sentence that will serve the interests of justice in this matter. In passing the appropriate sentence, the court must consider the interests of the accused, the interests of the society, and the seriousness or the gravity of the offence. [55] In mitigation of the sentence, Adv. Molapo argued that the accused is a first-time offender, not someone who typically engages in illegal behaviour. He noted that at the time of the offense, the accused was a 20-year-old youth. On the night in question, the accused had consumed alcoholic beverages, which impaired his judgment. [56] The accused is a married man with a six-year-old child and is the sole breadwinner for his family. Adv. Molapo also stated that the deceased’s conduct provoked the accused. Furthermore, he pointed out that the accused and his family contributed a sheep and a casket for the deceased's burial, demonstrating the accused's remorse for his actions. [57] The accused has consistently appeared in court whenever required. This case has been hanging over the accused’s head for about ten years, which has taken a toll on him both mentally and physically. Lastly, Adv. Molapo mentioned that the accused had completed his education up to Form B. In contrast, the Crown maintained that there were no aggravating circumstances in this case. [58] In determining an appropriate sentence that serves the interests of justice in this case, the court has considered that the accused is a first-time offender, indicating that he is not inclined to repeat illegal behavior and deserves a second chance in life. On the night in question, the accused had been consuming alcoholic beverages, which the court believes may have impaired his judgment. [59] Additionally, the court has considered the fact that the accused was provoked by the actions of the deceased, particularly when the deceased spilled his beer. Notably, this case has taken nearly ten years to resolve. For a decade, the accused has been uncertain about his future, which has weighed heavily on him, likely affecting him both mentally and physically; this prolonged uncertainty has been a punishment. [60] The accused has consistently complied with court appearances whenever required, demonstrating his respect for the legal system and his willingness to take responsibility for his actions. Furthermore, the court recognizes that the accused contributed to the deceased's funeral expenses by providing the casket and a sheep. This gesture indicates that both the accused and his family are genuinely remorseful for the accused's actions. [61] On the other hand, this court acknowledges that a life has been permanently lost. The relatives and friends of the accused will never see him again. This court believes in the sanctity of human life and asserts that no one has the right to take away another person's life, as life is a gift from God. [62] This court is deeply troubled by the prevalence of murders occurring in public bars, especially at night. The fact that individuals may be intoxicated cannot serve as an excuse for the loss of life. This court needs to send a strong message that murders at bars will not go unpunished. Both the perpetrators and potential offenders must understand that the legal system will not tolerate the ongoing violence that occurs in these establishments. [63] Additionally, the court emphasizes the importance of responsible alcohol consumption. Those who fail to act responsibly should face the full consequences under the law. While this court aims to balance justice with mercy, the primary consideration remains the irreversible loss of life. [64] It is important to note that no sentence can bring the deceased back to life. However, the deceased's family must see that justice is served, ensuring that society maintains confidence in the justice system. When confidence in the administration of justice is lost, individuals may feel compelled to take matters into their own hands. [65] The Court concludes that the appropriate sentence that will serve the interests of justice in this matter is the following. **ORDER** 1. The accused is sentenced to twenty (20) years imprisonment. **________________________** **T.J. MOKOKO** **JUDGE** **FOR THE CROWN :** ADV. N.A. NKOE **FOR THE DEFENCE:** ADV. R.E. MOLAPO * * * [1] LAC (2009 – 2010) at Page 7 [2] [2006] 1 BLR 254 (CA) at 257 [3] 1975 (1) SA 429 (A) [4] 1946 AD 331 [5] LAC 1990- 1994 44 [6] LAC 1995- 1999 405 [7] LAC 1995-1999 at P 405 [8] 1980 (3) SA 825 (A) [9] 1969 (4) SA 85 (A) [10] 1992 (1) SACR 628 (C) [11] LAC (1980 – 1984) 110 at 117 [12] 1990 (1) SACR 426 (A) [13] LAC 1995 – 1999 at P 423 #### __Related documents ▲ To the top >