Rex V Qamo Matela (CRI/T/0018/2021) [2024] LSHC 227 (29 November 2024)

# Rex V Qamo Matela (CRI/T/0018/2021) [2024] LSHC 227 (29 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/227/eng@2024-11-29) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/227/eng@2024-11-29) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/227/eng@2024-11-29) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/227/eng@2024-11-29) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Qamo Matela \(CRI/T/0018/2021\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/227/eng@2024-11-29) [ Download PDF (658.1 KB) ](/akn/ls/judgment/lshc/2024/227/eng@2024-11-29/source) Report a problem __ * Share * [ Download PDF (658.1 KB) ](/akn/ls/judgment/lshc/2024/227/eng@2024-11-29/source) * * * * * Report a problem __ ##### Rex V Qamo Matela (CRI/T/0018/2021) [2024] LSHC 227 (29 November 2024) Copy citation * __Document detail * __Related documents Citation Rex V Qamo Matela (CRI/T/0018/2021) [2024] LSHC 227 (29 November 2024) Copy Media Neutral Citation [2024] LSHC 227 Copy Hearing date 2 October 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0018/2021 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 29 November 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Criminal law](/taxonomy/case-indexes/case-indexes-commercial-criminal-law) * [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/0018/2021** In the matter between **** **REX CROWN** And **QAMO MATELA ACCUSED** _Neutral Citation_ : Rex vs Qamo Matela [2024] LSHC 227 CRIM (29th November 2024) CORAM : T.J. MOKOKO J DATE OF HEARING : 02/10/2024 DATE OF DELIVERY : 29/11/2024 **__SUMMARY__** _Murder- Trial within a trial- An extra-judicial statement made by the accused held admissible, as it was made freely and voluntarily- Approach of the court to expert evidence- Crown established a prima facie case- Effect of failure by the accused to testify in his defence- Defence of Novus Actus Interveniens dismissed- Death caused by the accused’s assaults on the deceased- The accused convicted of murder with dolus eventualis- Sentencing- Factors considered by the court in passing sentence._ **__ANNOTATIONS__** __Cited Cases__ __ 1. _Director of Public Prosecutions Gauteng v Pistorius[[2015] ZASCA 204](/akn/za/judgment/zasca/2015/204); [2016] 1 ALL SA 346 (SCA) _ 2. _DPP Gauteng v Pistorius [2016] 1 ALLSA 346 (SCA)_ 3. _Humphreys 2013 (2) SACR 1 (SCA); 2015 (1) SA 419-420 (SCA)_ 4. _Keketsi and Others v Rex LAC 2015-2016 412_ 5. _Lefaso v Rex LAC 1990- 1994 44_ 6. _Lehlehla v Rex (2000-2004) 763 at 768, Phaloane v Rex LAC (1980-1984) 72 at 77 and S v Boesak 2000 (1) SACR 633 (SCA)_ 7. _Lerato Mahanye and Another v Rex LLRLB 1999- 2005 105_ 8. _Letuka v Rex LAC 1995- 1999 405_ 9. _Mohlalisi and Others LAC (1980 – 1984) 110_ 10. _Murray v D. P. P 1994 WLR (HL)_ 11. _Piet Letuma v Rex (Criminal Appeal 44/75_ 12. _Osman and Another v Attorney General Transvaal 1998 (4) SA 1224_ 13. _R v Barlin 1926 A. D 425_ 14. _R v Blom 1939 A. D 188_ 15. _Sibanda and Others v State 1969 (1) P. H. H 122_ 16. _S v C 1996 (2) SACR 181 (C),_ 17. _S v De Oliveira 1993 (2) SACR 59 (A)_ 18. _S v Mafela LAC 1995-1999_ 19. _S v Mngomezulu 1972 (1) S. A_ 20. _S v Ngobeni 1992 (1) SACR 628 (C)_ 21. _S v. Ntsele 1998 (2) SACR 178 (SCA)_ 22. _S v Petrus 1969 (4) SA 85_ 23. _S v Prins 1990 (1) SACR 426 (A)_ 24. _S v. Reddy and Others 1996 (2) SACR 1 (A)_ 25. _S v Seqwahla 1967 (4) SA 566 (A)_ 26. _S v Sidziya and Others 1995 (12) BLLR 1626_ 27. _S v Shivute 1991 (1) SACR 656 (NM)_ 28. _S v Tembani (116/02)[[2006] ZASCA 123](/akn/za/judgment/zasca/2006/123); [2007] 2 ALL SA 373 (SCA) and Schwikard and Van Der Merve_ 29. _Thabiso Tsomela v. Rex 1974-1975 L. L. R 97_ 30. _The State v Obakeng Grious Skhosana Case Number: 20/2017_ __Statutes__ 1. _Criminal Procedure and Evidence Act_ 2. _Penal Code Act_ __Books__ 1. _R v Bodkin Adams 1957 Criminal Law Report_ __Articles__ 1. _Crime and Punishment in South Africa 1975_ **RULING** **TRIAL WITHIN A TRIAL** [1] After the trial within a trial, I ruled that the informal admission made by the accused was admissible because it was given freely and voluntarily. Here are my reasons. During the trial within a trial, the prosecution called four witnesses: Inspector Moeketsi (PW1), Sergeant Maqabe (PW2), Rorisang Mofol (PW3), and Lekhooa Monaleli (PW4). The main point of the prosecution's case was that the accused made the informal admission freely and voluntarily, without any threats from the police, contrary to what the defence alleged. [2] During the trial within a trial, Inspector Moeketsi testified that on Wednesday, September 15, 2021, between 12:00 pm and 12:30 pm, the accused's legal representative, Advocate Lepeli Molapo, came to his office and requested that the accused not be arrested, as he intended to surrender him to the police that afternoon. Inspector Moeketsi stated that around 2:30 pm on the same day, the accused's legal representative brought the accused to him, accompanied by his junior, Sergeant Maqabe. The inspector introduced himself to the accused and proceeded to warn and caution him in the presence of the legal representative. Inspector Moeketsi testified that, with the legal representative present, the accused provided his explanation, which he documented while the accused spoke. [3] The accused explained that on Friday, September 3, 2021, at around 8:30 PM, he returned home from a bar where he had been drinking with his friend, Lekhoo Monaleli (PW1). Before arriving home, he sent a WhatsApp message to his wife, the deceased, asking her to lock the door for security and informing her that he would use his key to enter. The deceased read the message but did not respond, as indicated by the blue tick. He then tried to call her via WhatsApp, but she ended the call. He also attempted to reach her with a regular phone call, but again, she cut off the call. He went home to avoid being locked outside by the deceased. He asked her why she hadn’t replied to his message, but she didn’t answer and stared at him. He repeated the question a second time, and the deceased asked him to leave her alone. She left the kitchen and entered the children’s bedroom, and he followed her inside. He closed the door and asked again why she hadn’t replied to his message. The deceased reiterated that he should leave her alone. [4] He demanded an explanation from her this time around. Her silence infuriated him, and in a moment of rage, he slapped her on the left side of her face, near the eye. He further assaulted her with fists above the left eye. As the deceased tried to ward off the blows, he twisted the deceased’s hand. He realized that her face was swelling. He further noticed that the area above her left eye and the left eye was swollen. [5] On Saturday, September 4, 2021, at around 11:00 a.m., the deceased collapsed. He noticed that she had fainted and that her jaws were stiff. He then called PW1 to come so they could take the deceased for medical attention. The deceased experienced another seizure. PW1 arrived and took the deceased to Willie's Clinic. Dr. Hoedoafia asked him what had happened to the deceased's eye and the area above it. He explained to Dr. Hoedoafia that he had assaulted the deceased. After the examination, Dr. Hoedoafia emphasized that violence was not a solution to their problems and recommended that they seek counselling. He then recorded the explanation the following day and provided it to the accused for confirmation. The accused verified that the account was accurate and signed the statement. [6] During cross-examination, it was suggested to the witness that after the accused was handed over, the witness released the accused's legal representative. The witness maintained that the accused explained in the presence of his lawyer and Sergeant Maqabe. During cross-examination, it was suggested to the witness that after the accused's legal representative left, the witness became hostile and threatened the accused with violence. However, the witness maintained that the accused provided his explanation freely and voluntarily while his legal representative was present. The defense suggested to the witness that the accused learned through social media and from crown witnesses that they reported the death of the deceased to the witness, and the witness promised the crown witnesses that he would deal with the accused brutally. The witness denied this version. [7] It was suggested to the witness that the accused learned about his arrest from PW1 and PW2. The witness stated that he did not know anything about that. The defence suggested that the witness was alone when the lawyer brought in the accused. However, the witness maintained that he was with his junior, Sergeant Maqabe. The witness was asked if there was a police officer who was frequently entering and leaving the office without being involved in the situation. The witness denied this claim and stated that four people were present in the office: Sergeant Maqabe, the accused, and his lawyer. [8] Further, under cross-examination, the witness denied the defence version that the accused was interrogated without his lawyer. The defense suggested to the witness that the witness fabricated the entire content of the accused’s explanation. The witness maintained his stance that the accused provided the explanation. Lastly, it was suggested to the witness that he did not sign his explanation statement freely and voluntarily because he was under duress and wanted to avoid brutal interrogation. However, the witness maintained that the accused signed the explanation statement of his own free will. **Seargent Maqabe- PW2** [9] Sergeant Maqabe, the second witness in this case, recounted an event on 15 September 2021 at approximately 12:30 pm. On that day, the legal representative of the accused, Advocate Lepeli Molapo, arrived at his office with a formal request regarding the accused. Adv. Molapo sought to facilitate the handover of the accused into their custody. When the accused's legal representative arrived at the office around 2:15 pm, he was accompanied by the accused. Inspector Moeketsi introduced himself and the witness to the accused. Inspector Moeketsi read all the accused's rights to him in the presence of the accused's legal representative. The accused provided his explanation freely and voluntarily while his legal representative was present. [10] During cross-examination, the witness was asked if the accused had provided his explanation under the pressure of being assaulted, as the witness appeared hostile. However, the witness maintained that the accused made his statement freely and voluntarily, without any threats or assaults involved. It was suggested to the witness that when the accused provided his statement, his lawyer was not present. However, the witness maintained that the accused’s legal representative was present when the accused gave his explanation. During cross-examination, the witness was suggested to have played a role in registering the accused and locking him up in a police cell. The witness confirmed this statement. **Rorisang Mofolo- PW3** [11] Rorisang Mofolo- PW3 testified that the deceased was her younger sister. She reported to the Mabote Police Station about the death of her sister. She testified that she has accounts on Facebook, Instagram, Twitter, LinkedIn, and WhatsApp. She stated that between 9th September 2021 and 15th September 2021, she did not post anything on any of her social media accounts indicating that the Mabote Police were looking for the accused in connection with the death of the deceased. The witness stated that she never posted on any of her social media accounts that, upon the arrest of the accused, the police would assault him brutally. [12] During cross-examination, the witness was questioned about comments on her post, which implied that her social media followers intended to take revenge on the accused. It was suggested that these threats led the accused to surrender himself to the police. The witness stated that she was unaware of the posts mentioned by the accused. During cross-examination, the witness denied posting on Facebook about the events that led to the deceased's death on 11/09/2021. It was suggested to the witness that the main point of her posts was that the accused caused the death of the deceased. The witness testified that she had never referenced the accused in any of her posts on Facebook. During the cross-examination, it was insinuated that the accused knew the investigating officer's name before he approached the police to turn himself in, implying that this information had been publicly shared on social media. However, the witness firmly rejected this suggestion, maintaining her stance throughout the questioning. **Lekhooa Monaleli- PW4** [13] Lekhooa Monaleli- PW4, testified that he has WhatsApp, Facebook, and Instagram accounts. He stated that between 11 September 2021 and 15 September 2021, he did not post anything on any of his social media accounts regarding the Mabote Police planning to arrest the accused or any intentions of the police to assault the accused brutally upon his arrest. During cross-examination, the witness was questioned about social media posts alleged to be threatening towards the accused. In response, the witness stated that he was unaware of such threats. **Qamo Matela- DW1** [14] Qamo Matela- DW1 testified that on 13/09/2021, Lekhooa Monaleli- PW4 came to his house and told him that he was coming from the police and that Inspector Moeketsi was very hard on him. [15] The accused testified that around 2:00 pm, his lawyer accompanied him to Mabote Police Station, where his lawyer handed him over to Inspector Moeketsi, who was alone in his office. After about three minutes, his lawyer left him in the hands of Inspector Moeketsi. Inspector Moeketsi took him to the police cells and detained him. The following day, Inspector Moeketsi placed the sheet of papers in front of him and ordered him to sign those papers. He looked furious. Inspector Moeketsi said he would handle him if the accused did not follow his orders. Because of the threats made to him by Inspector Moeketsi, he signed the papers. [16] Under cross-examination, it was suggested to the accused that if there were threats on his life on social media, he should have sought assistance from the police, and his failure to do so means that the risk he was referring to was just a fabrication. The accused stuck to his version that he felt that his life was threatened on social media. [17] Under cross-examination, it was suggested to the accused that he failed to put his version to Inspector Moeketsi and that he threatened him. The accused admitted that his version was never put to Inspector Moeketsi. [18] Under cross-examination, it was put to the accused that during the cross-examination of Inspector Moeketsi, it was suggested to him that Rorisang Mofolo-PW3 posted on her social media account that the accused was going to be arrested and the police were going to deal with the accused brutally. It was suggested further to the accused that under cross-examination of Rorisang Mofolo-PW3, the defence did not suggest to Rorisang Mofolo that she posted on her account that the police were going to arrest him and deal with the accused brutally. It was, therefore, suggested to the accused under cross-examination that that was an afterthought. The accused replied that he was not the one who was conducting the cross-examination of the crown witnesses. Therefore, that failure cannot be attributed to him. [19] Further, under cross-examination, it was suggested to the accused that the defence failed to produce proof that PW3 and PW4 had made posts doing rounds on social media. The accused replied that he was not conducting Inspector Moeketsi's cross-examination. [20] Under cross-examination, it was suggested to the accused that Inspector Moeketsi and Sergeant Maqabe corroborate each other and that the accused gave his explanation in the presence of his lawyer freely and voluntarily. The accused said that the two police officers corroborate each other because they work together. [21] During cross-examination, the accused was asked whether he knew Sergeant Maqabe, to which he affirmed that he did not. Further questioning suggested that, during Inspector Moeketsi's cross-examination, it was claimed that Sergeant Maqabe had been coming in and out of the office while the accused was being interviewed. However, during Sergeant Maqabe's cross-examination, it was asserted that he was not present during the accused's interview. The accused responded by stating that he was not conducting the cross-examination of the crown witnesses. [22] During the cross-examination of the accused, it was pointed out that he claimed in his direct examination that Sergeant Maqabe did not participate in his interview and that he had only seen Sergeant Maqabe for the first time in court. The accused confirmed that this was indeed his evidence. It was put to the accused that Sergeant Maqabe testified that after the interview, he took the accused to the holding cells. It was further put to the accused that, during Sergeant Maqabe’s cross-examination, the accused did not challenge Sergeant Maqabe in this regard. The accused acknowledged no challenge to Sergeant Maqabe’s evidence regarding that matter. [23] It was further put to the accused that, during the cross-examination of Sergeant Maqabe, it was suggested that he did not take part in the interview; rather, he came later to take the accused to the holding cells. The accused claimed he was not conducting the cross-examination of the crown witnesses. [24] During cross-examination, the accused was confronted about a statement made during his examination in chief. He had claimed that he met Sergeant Maqabe for the first time in court; however, during the cross-examination of Sergeant Maqabe, it was suggested that he had taken the accused to the holding cells. The accused was asked if he realized that these two statements were contradictory. In response, he stated that he could not confirm whether Sergeant Maqabe took him to the holding cells. [25] During cross-examination, it was presented to the accused that he claimed Inspector Moeketsi took him to the holding cell. However, Inspector Moeketsi stated that Sergeant Maqabe took the accused to the holding cells. Sergeant Maqabe confirmed this as well. The accused acknowledged that the defense did not challenge Sergeant Maqabe's testimony. Furthermore, while being cross-examined, the defence suggested that Sergeant Maqabe took the accused to the holding cells. However, in his examination-in-chief, the accused testified that he was taken to the holding cell by Inspector Moeketsi, who locked him in. The accused admitted that this was indeed the case. [26] During cross-examination, the accused was confronted with his earlier statement, made during his examination-in-chief, where he claimed that Inspector Moeketsi threatened that if the accused did not sign the statement, he would be taken to another room to talk. The accused also mentioned that Inspector Moeketsi implied that he would be denied bail if he did not speak. It was pointed out to the accused that he did not provide these details to Inspector Moeketsi during cross-examination. The accused replied that his legal representative was handling the cross-examination and did not understand why his lawyer did not present his version to the crown witnesses. It was suggested to the accused that his version was not presented to the crown witnesses because it was an afterthought. The accused maintained that he did not know why his lawyer failed to present his version to the crown witnesses. [27] During cross-examination, the accused was asked whether he believed that everything in the statement he was ordered to sign was solely the creation of Inspector Moeketsi. The accused confirmed that the explanatory statement was indeed a creation of Inspector Moeketsi. Furthermore, he was questioned about how Inspector Moeketsi was aware of many details in his signed statement. The accused replied that Lekhooa Monaleli-PW4 had been called to the police station. He suggested that PW4 must have shared all those details with the police, as PW4 knew almost everything about the accused's life. **‘Mamolefi Qobose- DW2** [28] Mamolefi Qobose testified that the accused is her younger brother. She stated that she became aware of discussions on Facebook regarding the death of the deceased, where it was alleged that the accused denied the deceased medical treatment. She mentioned that the accused and their mother were described as animals who deserved to die. Additionally, she testified that social media posts called for the accused's arrest. Due to the threatening nature of these posts, the family decided to hire a lawyer to protect the accused's interests. [29] During cross-examination, the witness stated that she could not remember the social media posts from PW3 mentioned by others. Additionally, she mentioned that the accused's legal representative advised the accused to cooperate with the police regarding the matter. **THE LAW: THE REQUIREMENTS FOR ADMISSIBILITY** [30] At common law, an extra-judicial statement made by an accused may not be admitted into evidence unless it is proved to have been made freely and voluntarily. [1] In this context the words _“freely and voluntarily_ ” have a technical and restricted meaning and an admission will be found to be involuntary only if it has been induced by a promise or threat proceeding from a person in authority[2]. [31] Clearly, an admission induced by violence, or a threat of violence will not be admissible, nor will an admission made in response to a promise of lenient treatment be admitted. However, an admission made under police interrogation will not necessarily be inadmissible. It will be excluded only if on the facts it appears that it was induced by a threat or promise. [3] Similarly, whether or not an exhortation or invitation to speak amounts to a threat or a promise negating volition will depend on the surrounding circumstances[4]. [32] A threat or promise will not be relevant unless it emanates from a person in authority. A person in authority is “anyone whom the prisoner might reasonably suppose to be capable of influencing the course of the prosecution[5]”. **DISCUSSION AND ANALYSIS** [33] The prosecution argued that the accused made an informal admission in the presence of his lawyer and that this admission was made freely and voluntarily, thus making it admissible in court. In contrast, the defence argued that the admission should not be considered admissible because it was not made freely and voluntarily; they claimed that the police had threatened the accused to make the statement. [34] It is important to note that the defense failed to demonstrate that both Rorisang Mofolo (PW3) and Lekhooa Monaleli (PW4) made Facebook posts indicating that Inspector Moeketsi planned to have the accused arrested and that once arrested, the police would treat him brutally. [35] The accused testified that Sergeant Maqabe was not in the office when he was brought to the police station, and he claimed that Inspector Moeketsi was the one who detained him. During the cross-examination of Sergeant Maqabe, it was not denied that he had detained the accused. However, during his cross-examination, it was suggested that he was present in the office but did not participate in the interview because he was occupied with other duties. In contrast, the accused maintained that Sergeant Maqabe was not present in the office during the interview and reiterated that Inspector Moeketsi had detained him. Furthermore, during Inspector Moeketsi's cross-examination, it was also suggested to him that Sergeant Maqabe was the one who detained the accused. Clearly, the accused's evidence is filled with significant contradictions concerning his extra-judicial statement to the police. [36] During cross-examination, the accused acknowledged the accuracy and truthfulness of the contents of the explanatory statement. When asked how Inspector Moeketsi obtained the information in the statement, the accused claimed that Lekhooa Monaleli possessed all the relevant information and was the one who provided it to the police. Under cross-examination, the accused had initially contended that Inspector Moeketsi fabricated the details in the statement. However, when pressed on this matter, he altered his response, stating that it may have been Lekhooa Monaleli (PW4) who shared those details with the police. [37] I have noted with great concern that when the accused was confronted with significant contradictions between his testimony during direct examination and his statements in cross-examination, he claimed that he was not the one conducting the cross-examination. However, I must emphasize that these contradictions are highly material to this case. [38] I understand that the accused stated he learned from the posts of both Rorisang Mofolo and Lekhooa Monaleli that the police were planning to arrest him and that he believed he would be treated brutally by the police upon his arrest. It is a common legal principle that the person making an allegation must provide evidence to support it. In this case, the accused has not substantiated the claims made. The Facebook posts presented in court by the accused pertain to the funeral of the deceased and do not, in any way, support the version of events put forth by the accused. The court does not believe the accused’s claim that Lekhooa Monaleli and Rorisan Mofolo posted on social media regarding his impending arrest and mistreatment by the police. [39] The onus rests on the crown to prove beyond reasonable doubt that the admissions were made freely, voluntarily, and without undue influence. In **_R v Barlin_**** _**[6]**_****, Innes CJ** stated that the common law allows no statement made by an accused person to be given in evidence against himself unless it is shown to have been freely and voluntarily made, in the sense that it has not been induced by any promise or threat from a person in authority. The crown witnesses, namely Inspector Moeketsi and Sergeant Maqabe, corroborate each other that the accused made the admission freely and voluntarily in the presence of his lawyer. The testimony of the crown witnesses was impressive, and I have no reason to doubt its reliability. In contrast, the accused's evidence contained numerous significant contradictions. [40] On the other hand, I find that it was highly improbable that the accused was threatened in the manner described, as the accused’s testimony was riddled with material contradictions in relation to the alleged threats of assaults on him. For purposes of trial within trial, I am satisfied that the accused’s story is false. I, therefore, rule that the extra-curial statements by the accused are admissible as they were made freely and voluntarily. **MAIN TRIAL** **Introduction** [41] The accused is charged with contravention of _section 40 (1) of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6) read with section (2) thereof_, in that upon or about the 11th day of September 2021, and at or near Ha Mabote in the district of Berea, the said accused did perform an unlawful act or omission, to cause the death of ‘Mahlompho Matela, such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid. The accused pleaded not guilty to the charge. [42] Crown led the evidence of six witnesses: Lekhooa Monaleli- PW1, Rorisang Mofolo-PW2, Insp. Moeketsi Moeketsi- PW3, and Dr. Hoedoafia- PW4, Tselane Motsie- PW5, Doctor Lefatle Phakoana- PW6. The defence admitted the following reports and statements: the report of Doctor Maketi, and was marked exhibit G; the report of Doctor Kolobe, was marked Exhibit C; statement of Selloane Ntisa, was marked Exhibit D; the identification statement of Maloi Matela, and was marked Exhibit E, identification statement of Lebohang Mofolo, and was marked exhibit F. These statements and reports were admitted in terms of _section 273(1) of the Criminal Procedure and Evidence Act, 1981_. **PW1-Lekhooa Monaleli** [43] Lekhooa Monaleli (PW1) testified that he is a male adult from Masowe-2 in Maseru employed at Vodacom Lesotho. He mentioned that the accused was his friend, and their friendship began a long time ago. They grew up together and attended the same primary school in Ha Mabote in 1999. He stated that their friendship started that year. He also testified that he knew the accused's wife and their families were friends. [44] PW1 recounted an incident that took place on either the 4th or 5th of September 2021, a Saturday, around 1:00 pm. He vividly remembered receiving a frantic telephone call from the accused, whose voice was filled with urgency and concern. The accused implored PW1 to quickly take his wife to the doctor, indicating that she needed immediate medical attention. Alarmed by the tone of the call, PW1 hurriedly made his way to the accused’s residence at Ha Mabote. [45] When PW1 entered the accused's house, he saw the accused and the deceased sitting on the floor in the living room. The deceased was leaning against the accused, with her legs stretched out. He noticed that the deceased seemed very tired, weak, and helpless. Both he and the accused helped move the deceased to the car, but she suffered seizures and bit her tongue. The accused used a spoon to help release the deceased's tongue. [46] During the testimony, PW1 described how he noticed a bruise on the deceased's right eye and multiple bruises on her forehead. He explained that upon arriving at the hospital, the accused left the deceased and PW1 in the car and went inside the hospital. According to PW1, the deceased revealed to him that she had been assaulted by the accused. When he asked her why she hadn't called for help, the deceased alleged that the accused had strangled her and that they had talked throughout the night until 4:00 am. Furthermore, PW1 recounted that he inquired about the events, and the deceased confirmed that the accused had indeed strangled her. The accused returned with a wheelchair and accompanied the deceased inside the hospital, leaving PW1 in the car. After about an hour, they emerged from the hospital and drove to the accused's residence. Subsequently, after dropping off the accused and the deceased, PW1 departed to Moshoeshoe II. [47] In the testimony, PW1 described how he sent a voice note to the accused, expressing the need to discuss a certain issue and indicating that he would not let it pass without a discussion. He mentioned that the accused apologized to him. The following day, PW1 and his wife visited the accused's home to check on the deceased, but they were told by the accused that the deceased was sleeping and could not be seen. On Monday morning, the accused called PW1 and asked for a ride to town. After picking up the accused, PW1 dropped his wife at her workplace, and they began discussing the situation of the deceased. PW1 testified that the accused admitted to having a dispute with the deceased and assaulting her because she did not satisfactorily respond to him. The accused justified his actions by stating that it was the only way to make his wife submissive to him. PW1 cautioned the accused against resolving disputes through violence and expressed concern about potential serious consequences. [48] PW1 described his visit to the accused's home to drop off groceries the accused had purchased. Upon entering the deceased's bedroom, PW1 found the deceased working at the desk while wearing sunglasses and noticed that the deceased had a blue eye. [49] Additionally, PW1 testified that he visited the accused's home on a Wednesday to pick up the accused and drive him to Bloemfontein for the accused's vehicle, which had been taken there for repairs. When they returned from Bloemfontein, PW1 saw the deceased again. He mentioned that the deceased still had a blue eye, but the swelling on the forehead had subsided. PW1 also shared that he had scheduled counselling appointments for both the accused and the deceased for the following day, a Thursday. [50] On Thursday, around noon, the accused called PW1 to report that the deceased had fainted and needed assistance. Unfortunately, PW1 could not help as he was already at Ha Thetsane to pick the children up from school. Subsequently, PW1 followed the ambulance, carrying the deceased to Pelonomi Hospital in his car, accompanied by PW2. Later, PW2 informed him that the deceased had passed away. [51] Under cross-examination, it was suggested to PW1 that the accused never said that he assaulted the deceased because he wanted the deceased to be submissive to him. PW1 stuck to his version of what the accused said. Further, under cross-examination, it was put to PW1 that the medical evidence would show that the deceased had a bruise on the left eye. PW1 stated that he observed that it was the right eye. Under cross-examination, PW1 was taken to task that he did not tell the court how the accused said he assaulted the deceased. PW1 contended that they did not discuss how the accused assaulted the deceased; rather, they discussed that it was not good to resort to assaults to resolve family disputes. The court asked PW1 to clarify the injury on the deceased’s forehead, and PW1 stated that the whole forehead was swollen, and he observed that there was some blood clot on the forehead. **PW2 - Rorisang Mofolo** [52] PW2 testified that the deceased was her younger sister. The deceased was married to the accused, and they lived together at Ha Mabote. PW2 stated that on Saturday, September 4, 2021, between 12:00 p.m. and 1:00 p.m., she received a call from the accused, informing her that the deceased had fainted four times. The witness stated that the accused mentioned he suspected the deceased had heart problems because she improved after being given sugar. PW2 testified that the accused told her they had a dispute the day before but had resolved it overnight. PW2 also reported that she spoke with the deceased, who told her she was feeling very tired. [53] PW2 recounted that on a Sunday morning, she reached out to the deceased via text to check on her well-being. In response, the deceased confided that she was experiencing dizziness and was still suffering from persistent vomiting. Shortly after, PW1 contacted PW2, urging her to visit the deceased without delay. The following day, on Monday, PW2 initiated a video call with the deceased. During the call, she couldn’t help but notice a noticeable bruise on the deceased's forehead, and she observed that the deceased was attempting to shield the left side of her face with a pillow. She observed that the patches on the forehead were red and that there was swelling. She requested to see the rest of the face and noted that the deceased’s eye was red and had a bruise. She recounted that not long after, the deceased sent her a message, expressing feelings of anguish and despair, stating that she felt ensnared in a nightmare of a marriage. PW2 testified that the deceased told her that, Friday night the deceased assaulted her and strangulated her. [54] On Thursday of that week, she visited Maseru Private Hospital because she had been informed that the deceased was taken there. She noticed the same bruises she had seen during the video call. Arrangements were made with the hospital to transfer the deceased to Pelonomi Hospital in Bloemfontein. PW2 testified that after the deceased had taken a bath at Maseru Private Hospital, she applied body lotion and noticed scratches on the deceased’s neck. PW2 testified that she received a call around 2:00 am informing her of the deceased's death. In the morning, she went to Mabote Police Station to report the matter. [55] PW2 testified that on Monday, 13th September 2021, she called the accused to ask if he had used any object to assault the deceased on the head. PW2 stated that she asked the accused this question because the doctors had recommended a CTC scan for the deceased, indicating there might be an issue with the deceased's head. She testified that the accused claimed he did not use any object when assaulting the deceased. She mentioned that their call had been disconnected, but later, the accused called her back and admitted that he had assaulted the deceased with his bare hands. [56] Under cross-examination, it was suggested to PW2 that the injuries that the deceased sustained were caused by the fall in the bathroom when the deceased lost consciousness; therefore, the deceased must have hit something in the bathroom. PW2 maintained that the accused confessed to assaulting the deceased with his bare hands. During cross-examination, the witness stated that when she viewed the deceased at the mortuary, she still had a blue eye. Further, under cross-examination, it was suggested to the witness that the accused never, at any time whatsoever, assaulted the witness. The witness stuck to her version that the accused did assault her. Under re-examination, the witness stated that the marks on the deceased’s neck appeared like fingernails had caused them. [57] During the testimony of Inspector Moeketsi Moeketsi (PW3), the defence objected on the grounds that the accused's alleged informal admission was not made freely and voluntarily, as the accused had been threatened by the police. This objection led the court to hold a trial within a trial to determine the admissibility of the informal admission. **PW3 - Inspector Moeketsi** [58] The crown called Inspector Moeketsi as PW3. The witness presented the accused's explanation statement, marked as exhibit “A”. He testified that after reviewing the explanation, he found it unsatisfactory and subsequently charged the accused with murder. [59] On 18 September 2021, he visited Lesotho Funeral Services to examine the deceased's body before the doctor conducted the post-mortem. He noted that the deceased had a bruise on the left side of the forehead, a bruise around the left eye, a small wound on the chin, and scratches on the neck and chest. Additionally, the chest was swollen. [60] During cross-examination, the witness was prompted with the suggestion that Doctor Mosese found no injuries on the deceased except for one on the eye. However, the witness maintained his statement that the deceased had sustained the injuries he had previously described. During cross-examination, it was suggested to the witness that Doctor Mosese would show that the deceased had died of natural causes. However, the witness stated that the deceased's death was unnatural. During cross-examination, it was suggested to the witness that the injuries he observed on the deceased must have been inflicted after Doctor Mosese had examined the body. The witness denied this suggestion. **Doctor Hoedoafia- PW4** [61] Doctor Hoedoafia, referred to as PW4, testified that he obtained his medical qualifications from a university in the Soviet Union in 1989. He completed his internship in Ghana. In 1984, the Government of Lesotho employed him as an expatriate, and he worked in various government hospitals. In 2002, he resigned from his government position and began working at Willies Clinic. He meticulously compiled a comprehensive report regarding the deceased individual, whom she had provided care for during their final days. This detailed report is dated 21 July 2022. [62] Upon examining the deceased, he noted bruises on the left side of the head, bruises around the left eye, and pain on the left side of the neck. The deceased was brought into the consulting room in a wheelchair and reported being assaulted by her husband the previous night due to disagreements. The husband, who is the accused, admitted that he assaulted the deceased. He asked the accused what happened, and he confirmed that the deceased's statement was true. The deceased indicated that the accused began the pattern of assaulting her after her mother's death in 2021. [63] On general examination of the deceased, he found that the patient was not ill, she did not have yellowness of the eyes, patient did not look pale, contusion left periorbital area and parietal scalp, left subconjunctival hyperaemia and abrasions with petechial patch on left side of the neck- bleeding under the skin, bleeding into the white part of the eye, normal pupils with normal reaction to light, no bony injuries, tenderness along left side of the body, normal air entry both lungs, soft abdomen. His opinion was assault with soft tissue injuries. He advised the accused and the deceased to admit the patient, but they declined. He also recommended marital counselling sessions due to repeated assaults. He attended to the deceased in the presence of the accused. [64] The witness testified that it was important to admit the patient because the impact was on the head around the eye, the state of the eye was swollen, and the eyeball and the white part of the eye were bleeding. Close to the central part of the head, there was an injury close to the brain. Therefore, it was necessary to have the patient admitted so that she could be observed. The witness testified that there were multiple impacts on the head and the neck. There was tenderness on the left side of the body, and whenever he touched the left side of the body, the deceased would groan. He did not undress the deceased, but by touching her on the left side of the body, the deceased would express some pain. He was worried about the injury on the head and the neck because blunt injury caused by fists could lead to bleeding into the brain, which is why he wanted to do a CT- Scan. The accused told him that he used fists to assault the deceased. Depending on the force applied, there could be a collection of blood in the brain, which could ultimately cause death. The doctor testified that if the bleeding in the head compresses the brain, a person will have fits and collapse. He said that the liver and the spleen have many blood vessels, and if there is a laceration on the liver or spleen, depending on the degree of the tear, there will be bleeding, which will then be collected in the cavity. The doctor tendered in the medical report, and it was marked Exhibit “B”. [65] Under cross-examination, it was suggested to the witness that if the deceased had internal bleeding when she was admitted at Maseru Private Hospital or Pelonomi Hospital, the internal bleeding could have been detected when her vitals were taken. The witness’s response was that the fact that the deceased had two (2) episodes of seizures or fits, had vomited several times, had fainted three times, and complained of chest pains, meant that there was a problem in the chest cavity. It was further suggested to the witness that the deceased had a history of fits since 2018. The witness reiterated that the deceased had seizures at home before she was taken to Maseru Private Hospital for treatment. **Admissions** [66] During re-examination, the witness indicated that both the doctors at Maseru Private Hospital and Pelonomi Hospital had recommended a CT scan for the deceased. They believed that the seizures and vomiting experienced by the deceased were symptoms indicating a potential issue related to the brain. [67] According to _section 273(1) of the Criminal Procedure and Evidence Act 1981_ , the defence admitted the following documents: the report from Dr. Maketi, the report from Dr. Thabiso Kolobe, the statement from Selloane Ntisa, the identification statement from Maloi Matela, and the identification statement from Lebohang Mofolo. _Section 273 (1) of the Criminal Procedure and Evidence Act 1981_ , 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. [68] In his report, Dr. Maketi stated that the deceased was received and examined at Maseru Private Hospital on the 9th of September 2021, reporting a history of two episodes of seizures (concussion). The report says that the patient reported having been physically assaulted by her husband seven days before her consultation at Maseru Private Hospital. The vitals of the patient were taken. The report shows that the patient was fully awake with a left raccoon eye (a bruise or ecchymosis around the left eye). The report says the examining doctor concluded a post-traumatic episodic convulsion investigation. The head CT scan was requested, and the patient was referred to Bloemfontein (RSA). The report was tendered in as exhibit marked “G”. [69] The referral form of Dr. Thabiso Kolobe. The patient referred to is the deceased. It is recorded that the differential diagnosis was head injury due to assault. History- assaulted by husband last Friday- fists and strangling. Started feeling dizzy with episodes of syncope convulsions. Examination findings- alert, chest- clear. Had a major episode of syncope and fit yesterday. Management- kept overnight- neuro observation was done, vomited x 2 in hospital. To refer them to a psychiatrist as well since the domestic abuse is ongoing. It was tendered in as an exhibit marked “C”. [70] The statement of Selloane Ntisa, a 65-year-old Mosotho woman, reveals that on 22 September 2021, she visited the accused's home and found the accused and the deceased in the bathroom. The deceased was having some seizures. She sprinkled cold water on the deceased's face and offered her some to drink. She noticed an injury to the deceased's left eye. The deceased was then taken to the doctor for treatment. On 11 September 2021, she received the news of the deceased's death. [71] Identification statement of Maloi Matela, a Mosotho male adult aged 39 years. He stated that on the 18th of September 2021, he identified the body of the deceased before the doctor conducted the post-mortem. The statement was handed in as an exhibit, marked “E”. [72] Identification statement of Lebohang Mofolo, a Mosotho male adult aged 39 years. He stated that on the 18th of September 2021, he identified the body of the deceased before the doctor conducted the post-mortem. He observed that the deceased had a bruise on the forehead and the left eye. He did not observe whether the deceased had any injuries on the body, as her body was covered. The statement was tendered in marked Exhibit “F”. **Tselane Motsie- PW5** [73] Tselane Motsie- PW5 testified that she works as a Nursing Assistant at Maseru Private Hospital. When the deceased arrived at the hospital, she took notes while the deceased explained her reasons for coming in. She recorded that the deceased had a bruise on her left eye and was experiencing neck pain. The deceased reported that she fought with her husband. The deceased had a visible injury on the face, and the deceased said her neck was painful because the accused held her by the neck and hit her head against the wall. Her report was tendered in marked Exhibit “H”. [74] During cross-examination, the witness was asked about the standard procedure when a patient arrives for treatment. The witness explained that when a patient is admitted, she takes notes as the patient describes their situation. However, for walk-in patients, she first takes their vital signs. If a patient needs to be referred to another hospital, the referring doctor will write a referral letter to the receiving doctor detailing the findings and relevant information about the patient. **Doctor Lefatle Phakoana- PW6** [75] He testified that he graduated in 1980 in Cuba. In 1993, he obtained a postgraduate in general pathology at the University of Villa Clara in Cuba In 2010, he obtained an advanced diploma in occupational medicine at the University of Free State. In 2018, he obtained a forensic pathology death investigation at the University of Nastle Dakota- United States of America. He worked as a general practitioner at Queen Elizabeth II Hospital from 1991. In 2019, he was engaged by the Lesotho Mounted Police Service to perform post-mortems. [76] Concerning injuries, he stated there are open and blunt injuries. Blunt injury is typically caused by external force with a blunt object. A blunt object can produce a bruise or abrasion and even show externally. A blunt injury can show a bruise externally, but it also causes internal bleeding. Vessels can be torn in different ways, and the amount of bleeding will depend on the force applied. A tearing of the vessel can cause internal bleeding. Hitting a person with fists or hitting a person against the wall can cause internal bleeding. The degree of internal bleeding will depend on the amount of force used. There can be bleeding in the head cavity. He stated that since the skull does not expand, the symptoms will happen at the rate at which the bleeding is happening. A person might start feeling discomfort, dizziness, fits, or convulsions until death ensues. If internal bleeding is not stopped, the only fate is death. [77] The common symptoms of bleeding in the head cavity are vomiting, dizziness, and fits. If there is internal bleeding in the chest cavity, the symptoms are discomfort, shortness of breath, and pain. Depending on the amount of blood lost into the chest cavity, death would eventually ensue. In the abdomen cavity, body parts likely to be affected when force is applied are the liver, spleen, and kidneys. The symptoms of internal bleeding in the abdomen cavity are dizziness, vomiting, and fits. If there is internal bleeding, the blood pressure may drop depending on the rate of bleeding. If the bleeding continues, the heart rate will increase to compensate and help maintain blood pressure. [78] On the 18th of September 2021, at the Lesotho Funeral Service, the body of ‘Mahlompho Matela (the deceased) was identified to him by Maloi Matela. He formed the opinion that death occurred on the 11th of September 2021 and that it was due to traumatic internal bleeding. On the remarks- the deceased is reported to have been assaulted to death, admitted to hospital, and later died. External Appearance- presenting with multiple bruises on the chest, bruise on the face left eye (“blue eye”), bruises and scratches on the neck. Subcutaneous bleeding in the muscles of the neck and scalp. Skull and contents- blood collection in the brain's subdural space. Pleurae, Pleural Sacs, and lungs Right- massive blood collection in the thoracic cavity. Left- a massive collection of blood in the thoracic cavity. Peritoneum and Peritoneal Sac- collection of blood in the peritoneal cavity- a lot of blood. Liver, Gall Bladder, and Bile Ducts- laceration of the liver with a lot of blood in the peritoneal cavity. [79] The pathologist testified that since the skull cannot expand, the collection of blood in the head will cause vomiting, dizziness, fits, and ultimately, death will ensue. The laceration on the liver meant that blood was coming from the liver into the abdominal cavity. He concluded that a massive collection of blood in the chest cavity, abdominal cavity, and head caused the death of the deceased. The post-mortem report was tendered in and marked exhibit “I”. [80] During cross-examination, the witness was asked if he should have measured the amount of blood collected in the abdominal cavity. The witness replied that such measurements were not necessary. The defence suggested to the witness that he did not specify the nature of the liver injury. The witness replied that knowing the nature of the injury would be unhelpful because a large injury can result in slow bleeding, while a small cut can lead to significant bleeding. He acknowledged that this detail was not included in his report, but he believed it was not significant for the purposes of the post-mortem. Under cross-examination, the defence suggested to the witness that, according to Pelonomi Hospital, the deceased died of natural causes. The witness strongly denied that the death was due to natural causes. The defence suggested to the witness that the post-mortem report was inconclusive, and that the death could have resulted from internal bleeding. However, the witness maintained his findings, asserting that the death was indeed caused by internal bleeding. The Crown then closed its case. **DEFENCE ‘S CASE** **Doctor Matsa Ephraim Mosese- DW1** [81] **QUALIFICATIONS -** Doctor Mosese testified that Doctor Kolobe referred the deceased to him. The referral letter from Doctor Kolobe indicated that the patient (deceased) had been assaulted but was fully conscious and that he must refer the patient to a social worker. The patient was stable and able to communicate, but she was experiencing dizziness and had fallen once or twice. She was admitted to Pelonomi Hospital on 10th September 2021 at around 5:00 pm. That night, she vomited twice in the hospital. Upon examining the patient, it was noted that she was fully alert and oriented. However, the patient complained of chest pains, feeling weak, and upper chest pains on the left side of the body. Upon examination, there was no evidence of injuries. She had tenderness of pain in the upper chest on the left. She had a bruise on her left eye. He planned to take her for an X-ray of the chest and a scan of the head (CT scan) since the patient had convulsions. [82] Around 01:00 am, the doctor was informed that the patient had collapsed- lost consciousness. Before he could reach the hospital, he was told that the patient died after several attempts to resuscitate her. The post-mortem was conducted on 18/09/2021, about seven days after death. He mentioned that it is claimed that the deceased was assaulted on 3rd September 2021. The injuries sustained by the deceased would have been evident on that day. If the victim had seen a doctor on the day of the alleged assault, the examining physician would have likely detected any internal bleeding. [83] He stated that if the deceased had an injury on the chin, he would have noticed it during his examination. The deceased likely sustained the chin injury based on how she was handled after her death. He stated that there was no way the deceased could have survived from 03/09/2021 to 10/09/2021, with a massive collection of blood in the right thoracic cavity and left thoracic cavity. The patient would be very sick due to a massive collection of blood in the thoracic cavity. [84] He indicated that during the post-mortem examination, it is crucial to measure the amount of blood collected in the relevant cavity. Concerning the laceration or tear in the liver, he mentioned that the pathologist should specify whether the injury occurred during the post-mortem examination or while the patient was being resuscitated in the hospital. The pathologist should have disclosed the depth and length of the liver laceration. He testified that if the patient had a laceration to the liver, it would have been detectable, as the patient would have shown symptoms earlier. Furthermore, the blood tests conducted at Pelonomi Hospital did not indicate any significant bleeding. [85] Doctor Mosese disputed that the cause of death was internal bleeding because the findings of the pathologist were so dramatic that the patient survived without any severe symptoms. It is highly unlikely and nearly impossible for a patient to have normal stability and blood pressure while experiencing massive internal bleeding. According to Dr. Mosese, the cause of death may have been a massive pulmonary embolism. He explained that pulmonary embolism occurs when a clot forms in another part of the body, breaks free and then blocks the blood vessels leading to the heart or lungs. He concluded that one would expect the pathologist to have examined the blood vessels to the heart, where he would have likely found the blood clot. [86] During cross-examination, the witness was asked to confirm his statement that the deceased did not have any scratches on the neck. The witness affirmed that there were indeed no scratches or abrasions on the neck of the deceased. The crown counsel then pointed out that three crown witnesses—namely, the pathologist, PW2 Rorisang Mofolo, and Inspector Moeketsi—had testified that the deceased did have scratches or abrasions on the neck. However, the witness maintained his position, insisting that he did not observe any scratches on the deceased’s neck during his examination. The crown counsel suggested to the witness that there were scratches on the deceased’s neck, and it was surprising that the witness had not noticed them. The witness maintained his statement that on 10th September 2021, he saw the deceased and did not observe any scratches on the neck. The witness added that the injury on the neck mentioned by the crown witnesses must have been caused by how the deceased was handled at the mortuary. During cross-examination, it was suggested to the witness that the deceased had confirmed to him that the accused had throttled her and that the scratches on her neck were consistent with throttling. The doctor stated it would be surprising if the deceased had mentioned being throttled, but he did not examine her neck. [87] The crown counsel asked the witness to consider that two crown witnesses testified seeing scratches on the deceased's neck while she was still alive. Additionally, two other crown witnesses claimed they saw scratches on her neck after she had died. Consequently, the scratches could not have resulted from handling the corpse. The witness maintained his assertion that he did not see any scratches on the deceased's neck. [88] The Crown Counsel suggested to the witness that Dr. Hoedoafia had testified that the deceased complained of chest pains on the left side of the chest and abdomen. Furthermore, both the pathologist and Inspector Moeketsi testified that they observed bruises on the chest. The Crown Counsel then suggested to the witness that the deceased experienced chest pains because something had occurred in the chest. The witness stated that he detected tenderness on the left side of the chest. It was further suggested to the witness that trauma had been inflicted on the chest, leading to chest pains, which is consistent with the possibility of bruising on the chest. The witness stated that tenderness in the chest could indicate a bruise or injury to that area. The witness was asked why he failed to notice the bruises on the chest area, which seemed surprising. In response, he stated that during his examination of the deceased, there were no bruises on either the neck or the chest. He observed that the deceased had complained of chest pains, but there was no way he could have overlooked the bruises on the chest area. The crown counsel asserted to the witness that both Dr. Hoedoafia and Dr. Phakoana (the pathologist) testified regarding the presence of bleeding inside the neck and scalp. Doctor Mosese stated that he does not recall examining the head, but he confirmed seeing a minor bruise on the eye. [89] During cross-examination, the crown counsel asked the witness if vomiting was a symptom associated with internal bleeding in the brain. The witness stated that the deceased may have vomited due to the medication. The witness was asked whether vomiting is a symptom of brain bleeding. The witness confirmed that vomiting is indeed one of the symptoms. The witness was asked if headaches are symptoms of blood accumulation in the head or brain. The witness confirmed this with an affirmative answer. The witness confirmed that dizziness and confusion are symptoms of bleeding in the head or brain. [90] During cross-examination, the crown counsel suggested to the witness that the contusions on the head and the bruise around the eye could indicate the possibility of bleeding in the head due to trauma. The witness confirmed that this was a possibility. He indicated that he wanted a CT scan for the deceased. The crown counsel asked the witness whether blood could have been present in the head. The witness indicated that it had not been ruled out that there was a possibility of blood in the brain. The witness was asked if loss of consciousness could indicate bleeding in the head. The witness replied that loss of consciousness is typically the last thing to occur in a patient. The crown counsel asked the witness why he believed the patient was supposed to be unconscious during his examination, given that there was bleeding on her head. The doctor replied that when he examined the deceased, she was fully conscious and alert. [91] The crown counsel suggested to the witness that he could not determine if, after consulting with the deceased around 9:00 pm, the deceased was experiencing slow or heavy internal bleeding or if the bleeding had ceased. Only the pathologist could explain to the court what happened to the deceased. The witness stated that, since the deceased did not have a CT scan, he could not determine whether there was any bleeding in the head. The crown counsel indicated that the pathologist's findings cannot be disputed. The witness concurred that the evidence from the pathologist, showing bleeding in the head, is irrefutable. During cross-examination, the witness was asked if the volume of blood collected in the chest cavity could cause the deceased to experience shortness of breath. The witness confirmed that the deceased would have experienced shortness of breath. [92] The crown counsel suggested to the witness that when Dr. Kolobe referred the deceased to him, he mentioned that the deceased was feeling dizzy and had experienced convulsions on 3rd September 2021. The witness also noted that on 9th September 2021, the deceased underwent a major syncopal episode. Upon examining the deceased, the witness found that the individual was weak, complained of chest pains, and exhibited tenderness in the chest. Additionally, nurses at Maseru Private Hospital reported that the deceased was experiencing shortness of breath. The witness confirmed that the deceased exhibited these symptoms. The crown counsel suggested to the witness that these symptoms were consistent with internal bleeding in both the head and chest cavities, to which the witness nodded in agreement. It was suggested to the witness further that the paramedic indicated that the deceased vomited, had chest pains, had a dry mouth, was feeling dizzy and had seizures. It was suggested to the witness that these symptoms indicate increased pressure in the head or chest cavity. The witness agreed that this was the case. [93] Finally, the crown counsel put it to the witness that his suggestion that the cause of death was pulmonary embolism was an afterthought because this version was never put to the crown witnesses, especially the pathologist and Doctor Hoadofia. The witness was adamant that, in his opinion, that was the cause of death. **DW2- Doctor Ntsidi Samuel Moopela** [94] He qualified as a doctor in 2004 from the University of the Free State. He worked at Mofumahali 'Manapo Mopeli Hospital in Qwa-Qwa from 2005 until September 2007. He worked at Mafikeng Regional Hospital in the North West from October 2007 until July 2008. After that, he moved to Katleho District Hospital in Virginia and stayed there until the end of February 2010. Following this, he was employed by Harmony from March 2010 until August 2010. He then worked at Bongani Regional Hospital from September 2010 until December 2010. In January 2016, he earned his degree in forensic pathology from the University of the Free State. In 2017, he began working as a lecturer at the same university. He currently operates a private practice in Bloemfontein and performs post-mortems on a sessional basis for the Republic of South Africa government. He is also employed full-time by the University of the Free State. [95] He stated that when a person has died, and the cause of death is unknown, only a pathologist can determine the cause of death. He confirmed that symptoms such as vomiting, confusion, increased pulse, and decreased blood pressure are consistent with internal bleeding. To the question of whether the collection of blood in the head cavity, chest cavity and abdomen cavity can cause death, the witness replied that the answer was YES and NO because it all depends on the amount of blood collected in those cavities. He stated that the pathologist concentrated on a single possible pathology without considering the full history of the deceased. He noted that the pathologist should have conducted a thorough examination of the body he should have excluded other possibilities. He stated that the liver injury may have resulted from resuscitation. [96] Under cross-examination, it was suggested to the witness that Doctor Hoadofia said there was tenderness on the left side of the abdomen, which suggested that there was an injury on the left side of the abdomen. The witness replied by saying, “I hear you”. The crown counsel suggested to the witness that vomiting, which the deceased experienced, was consistent with internal bleeding in the head and abdominal cavities. The witness replied that the liver is not on the left side of the body, and if a person has a foreign object in the stomach cavity, the pain will be felt in the whole stomach. The crown counsel suggested to the witness that his claim of liver injury due to resuscitation was not presented to the crown witnesses. The witness replied, “I hear you”. The crown counsel suggested to the witness that none of the doctors indicated the deceased had a fractured rib, and if it was not recorded, it meant it was not observed. The witness confirmed that this was correct. It was suggested to the witness that if the pathologist did not state that the ribs were fractured, then it would be incorrect for the witness to claim that the ribs were fractured. He replied that he disagreed with this suggestion. [97] The crown counsel suggested to the witness that if the accused assaulted the deceased, it was possible that the assault could have caused internal bleeding. The witness responded that this was a possibility. The witness was asked if shortness of breath was one of the symptoms of internal bleeding, and he confirmed that it was correct. It was suggested that all the symptoms exhibited by the deceased were indicative of internal bleeding, as confirmed by the pathologist. The witness disagreed with this suggestion. [98] Upon re-examination, it was suggested that if there was blood collected in the chest cavity, the post-mortem report should have specified the cause of the bleeding. The witness stated that the post-mortem report should have indicated the cause of the bleeding. [99] When asked by the court what might have caused the rib fracture, the witness stated he suspected that it could have resulted from resuscitation efforts. The court asked the witness whether the pathologist could not have detected the fractured rib if it was indeed fractured. The witness replied that the pathologist could have detected the fractured rib. The court asked the witness what might have caused the death of the deceased. The witness replied that he did not know what might have caused the death of the deceased. The defence then closed its case. **SUBMISSIONS** **Submissions by the Crown** [100] Advocate Joala, the crown counsel, asserted that the critical question is whether the evidence presented by the crown establishes a clear chain of causation between the accused's assault and the elements of the crime he is charged with. He argued that the testimony of PW1- **Lekhooa Monaleli** indicated that the accused made a clear admission to him regarding the assault on the deceased. Advocate Joala maintained that the accused confessed to assaulting the deceased and noted that the deceased had a red eye and reddish spots on the forehead. [101] He argued that PW2- **Rorisang Mofolo** , observed that the deceased had a blue eye, a swollen forehead, and a few scratches on the neck. The defence did not attempt to explain the cause of the blue eye or the scratches on the neck. While being treated at Maseru Private Hospital, the deceased expressed a desire to see her late mother. He contended that this was a clear indication of the deceased's confusion. [102] He asserted that the evidence of PW3- **Inspector Moeketsi** indicated that the accused, freely and voluntarily, in the presence of his legal representative, gave out an informal admission that he assaulted the deceased with fists on the 3rd of September 2021. Although the events were still fresh in the accused's mind, he did not mention or suggest that the deceased fell and hit a bathtub or any other object in the bathroom. It was argued that this claim was merely an afterthought by the accused. PW3 said the accused explained that the deceased began to faint and vomit after the assaults on 3rd September, 2021, which is why the accused took the deceased to Willies Clinic. PW3 observed that the deceased had bruises on the forehead, eye bruises, scratches on the neck, and bruises on the chest. He argued that the defence’s suggestion that the scratches and bruises were not present on the body and that the transportation of the deceased might have caused them was raised only with PW3, not with the doctors who examined the deceased while she was still alive and after death. [103] He submitted that **Doctor Hoedoafia** indicated that he saw the deceased on the 4th of September 2021, and she complained of general body pains, bruises on the left side of the head and left orbital area and a painful side of the neck. He said the accused admitted to having assaulted the deceased. On general examination, he discovered a contusion on the left periorbital area and parietal scalp, i.e., swelling on the left eye and left side of the skull. Left sub conjunctival hyperaemia, i.e., the white part of the eye was red, and abrasions with a petechial patch on the left side of the neck, i.e., a small wound under the skin at the left side of the neck. Tenderness along the left side of the body. He further stated that Dr. Hoedoafia indicated the symptoms of internal bleeding in the head cavity include fits, convulsions, loss of consciousness, confusion, and nonsensical speech. For internal bleeding in the chest cavity, the symptoms involve difficulty breathing, causing the person to struggle to breathe, and if bleeding is not stopped, death shall ensue. [104] Adv. Joala asserted that **Doctor Phakoana** , the pathologist, indicated that his findings are that the cause of death is traumatic internal bleeding. On examination of the body, he observed multiple bruises on the chest, bruises on the face, left eye (blue eye), bruises and scratches on the neck and subcutaneous bleeding in the muscles of the neck and scalp, i.e., under the skin of the head. The pathologist found a blood collection in the three cavities: the head, chest, and abdominal. He discovered a liver laceration with a lot of blood in the peritoneal cavity. He submitted that the pathologist corroborated Doctor Hoadofia’s evidence that a person can have internal bleeding when there are no open wounds. He submitted that the pathologist vehemently rejected the suggestion that the deceased _in casu_ died of natural causes. [105] He stated that PW6, **Motsie** , is an assistant nurse at Maseru Private Hospital. She provided care for the deceased on 10th September 2021, when the individual was admitted to the hospital. Motsie noted that the deceased complained of headaches and general body pain and that when she moved quickly, she experienced shortness of breath. Additionally, she observed that the deceased had a bruise (blue eye) around her left eye. [106] In the defence case, he submitted that DW1, **Doctor Mosese** , indicated that the patient complained of pain on the left side of her chest, and she was fully conscious. The patient fainted three times and vomited multiple times. Doctor Mosese indicated that given that the patient was assaulted on the 3rd of September 2021, there was no way she could have survived until the 10th of September 2021, with the nature of the internal bleeding she experienced. He submitted that Doctor Mosese said the laceration on the liver could not have been caused while the deceased was still alive as the blood results did not show significant loss of blood as haemoglobin results were still normal. Doctor Mosese concluded that post-mortem does not reflect the correct cause of death. Adv. Joala stated that although Doctor Mosese did not conduct the post-mortem and was unaware of the cause of death, he suspected it to be a pulmonary embolism, which is a clot in the lungs. He submitted further that under cross-examination, Doctor Mosese agreed that symptoms such as vomiting, fainting, convulsions, dizziness, confusion, chest pains, and shortness of breath were all consistent with internal bleeding in the three cavities, namely, head, chest and abdominal. Doctor Mosese further agreed that high pulse rate and low blood pressure are also symptoms of internal bleeding. He agreed that the deceased exhibited these symptoms before she died. He stated that Doctor Mosese agreed the deceased was pale and lost consciousness before her death, which are symptoms associated with blood loss. Lastly, Adv. Joala argued that when Doctor Mosese completed the hospital forms, he stated that the patient's cause of death was unnatural. However, in court, he claimed that the cause of death was natural. [107] In addition Adv. Joala submitted that the accused made an informal admission to PW1**\- Lekhooa Monaleli** that he beat his wife. The accused made an informal admission over the phone to PW2- **Rorisang Mofolo** that he hit his wife (the deceased) with fists. He informally admitted to Inspector Moeketsi (PW3) that he had committed the act. Since Inspector Moeketsi is a person in authority, a trial within a trial was conducted, and the court concluded that the admission was made freely and voluntarily. Additionally, before Dr. Hoedofia (PW4), the accused acknowledged that he had beaten his wife. The accused has never claimed that the deceased could have hit the bathtub or any other object in the bathroom, except in his statement to PW2, and he submitted that this was an afterthought. All these witnesses corroborate each other regarding the informal admissions made by the accused. [108] He argued that the prosecution has demonstrated that after the accused assaulted the deceased, the deceased began experiencing complications such as fainting, convulsions, and symptoms related to internal bleeding. He added that even if it were to be said that the deceased hit the bathtub, if the fainting resulted from assault by the accused, that would not break the chain of causation on the part of the accused, and no _novus actus_ would have been created. He referred the court to the case of **_S v Tembani**[7]** and Schwikard and Van Der Merve**[8]**_**. [109] He stated that three witnesses, specifically PW1-Lekhooa Monaleli, PW2-Rorisang Mofolo, and PW4-Doctor Hoedoafia, observed the injuries while the deceased was still alive, while PW3-Inspector Moeketsi and PW5- Doctor Phakoana observed the injuries on the body of the deceased after her death. He submitted that, surprisingly, Doctor Mosese only observed a blue eye on the patient. He argued to the court that the corroboration principle applies to the observations made by the crown witnesses. [110] Adv. Joala argued that based on the evidence presented before the court, the accused strangulated the deceased. The scratches on the neck bear testimony to that. He submitted that the accused bumped the deceased’s head against the wall and the floor during the assault as Doctor Hoedoafia found an injury on the skull, a red, white part of the eye, and a swollen left eye, and the pathologist found the bleeding under the skin of the head and blood in the left side of the body. When PW4 touched the left side of the body, the patient felt pain, suggesting that the assault was carried on that part of the body. It becomes plausible why the collection of blood was found in the abdominal cavity, coupled with the fact that the liver had a laceration on it. He submitted that circumstantially, the crown has proved its case beyond reasonable doubt that the accused unlawfully and intentionally killed the deceased. [111] Adv. Joala submitted that the form of intention involved in this matter is _dolus eventualis_. He referred the court to the case of **_Director of Public Prosecutions Gauteng v Pistorius**[9]**_. **He asserted that when the accused applied severe force, as noted by Doctor Hoedoafia, the accused foresaw the possibility of death ensuing; however, with recklessness and disregard, he reconciled himself with the foreseen outcome, particularly when he strangulated the deceased and bumped her head against the floor and wall, he foresaw the possibility that she could die. Assaulting the deceased all over the body, especially on the left side of the body, with severe force caused the accused to see the possibility of death ensuing; however, with reckless disregard, he continued. [112] The crown counsel submitted that the two defence witnesses suggested that perhaps the resuscitation might have caused the fracture of the ribs, resulting in a laceration on the liver. Doctor Moopela said the pathologist should have investigated other possible causes of death, such as pulmonary embolus, Liver failure and kidney failure. Doctor Moopela, therefore, concluded that the post-mortem was inconclusive. Adv. Joala submitted that this version was not put to the crown witnesses, especially the pathologist, who would be better positioned to know whether the ribs were fractured. Therefore, it would be unfair to the prosecution that the defence was not put to the crown witnesses and was only brought during the defence case when they left the witness box. He referred the court to the cases of **_Lehlehla v Rex**[10]**, Phaloane v Rex **[11]**and S v Boesak**[12]**. _**Adv. Joala, in conclusion, submitted that the pathologist found the cause of death to be internal bleeding in three cavities, and no _novus actus_ was ever demonstrated, which cut the chain of causation to the accused. **DEFENCE’S SUBMISSIONS** [113] Adv. Molapo, counsel for the accused submitted the first issue for determination is whether the Crown has proven its case beyond reasonable doubt, and the second issue is whether the accused caused the death of the deceased. He argued that the crown led evidence of PW1, PW2 and PW3 whose evidence relates mainly to the events of the 3rd of September 2021. He asserted that the evidence of PW1, PW2, and PW3 is therefore not material to prove the charge of murder because the deceased was alive and recovering when she told them that she had been assaulted by the accused, who took positive steps to take her to the doctors to medical treatment. The accused’s actions demonstrate the lack of intention to murder the deceased. Therefore, this eliminates one of the requirements of the offence of murder, being the intention (_mens rea_). [114] He submitted that the Crown called Doctor Hoedoafia, who examined the deceased on the 4th of September 2021. His findings were that the patient had suffered soft tissue injuries, her vitals were normal, and she had a raccoon eye and complained of a painful body. The doctor wanted to admit the patient, but the accused refused to have the patient admitted. He submitted that this was an afterthought by the doctor. He submitted that the evidence of Doctor Hoedoafia was rebutted by DW1 and DW2, who testified that the clinical findings he made could not lead to the conclusion made in the post-mortem report. [115] Adv. Molapo submitted that the evidence of PW5 was unjustified in so far as the pathologist testified that, firstly, he was hired or contracted by the family of the deceased and that the police took his report to make it part of their investigations. Secondly, he submitted that the witness, as an expert witness, failed to rule out other possible causes of death. He, therefore, argued that PW5’s report is inconclusive, as already challenged by other experts, and this court should not rely solely on it to convict the accused. He added that the pathologist admitted that he did not measure the blood and size of the laceration, which he reflected in his report and described as “a lot “and “massive”. [116] He further submitted that testimony of DW2 established that it is improbable for a person to have a massive collection of blood in both the left and the right thoracic cavities with normal vitals, hemodynamic stability and no respiratory distress. It is impossible that the deceased was assaulted seven days before her demise, seen by four doctors, and they all missed these injuries. The pathologist failed to state the depth and width of the laceration on the liver. The pathologist's only explanation was that the school of thought he subscribes to does not believe in taking pictures and measuring the blood and the size of the laceration. [117] Adv. Molapo submitted that the evidence of PW5 was rebutted by DW1, who testified that the cause of death arrived at by the pathologist is far-fetched and inconceivable. Doctor Mosese indicated that it is highly possible that the deceased died from pulmonary embolism, which is a condition where a clot dislodges and gets stuck in the arteries, circulating blood to the heart. [118] He submitted further that the evidence of PW6 was a repetition of the report from Maseru Private Hospital, reflecting the condition of the deceased while she was admitted. The report is clear that the deceased, despite having vomited, was not critical as the nurses never called any doctor to attend to the deceased in an emergency. [119] Adv. Molapo submitted that even if it were to be found that the deceased died from internal bleeding as alleged by the pathologist, the assaults by the accused on the deceased are not the ones which caused her death, but there was an intervening act, which is the delay to get medical attention. The internal bleeding acted as a _novus actus_ interveniens, and it contributed causatively to the death of the deceased, and it is independent of the assaults. [120] Adv. Molapo submitted that the Crown has, at best, proven a case for assault GBH, but as for the charge of murder, the Crown has failed to satisfy the requirement of _mens rea_. The accused never had the intention to kill the deceased, and the deceased died from natural causes. He argued that the Court should acquit the accused. Still, suppose the Court finds that the accused contributed to the cause of death of the deceased. In that case, he should be found guilty of culpable homicide because the accused acted positively after the assault, and the internal bleeding could not be foreseen. **ANALYSIS AND DISCUSSION** [121] The question for determination is whether the crown has established beyond reasonable doubt that the accused caused the death of the deceased. The defence argued firstly that the deceased hit the bathtub in the bathroom when she fell. Therefore, the accused is not responsible for the death of the deceased. Secondly, the defence argued that even if the court were to find that the deceased died from internal bleeding, the assaults by the accused on the deceased were not the ones which caused the death, but there was an intervening act, which is the delay to get medical attention. The defence argued that internal bleeding acted as a _novus actus_ interveniens, and it contributed causatively to the death of the deceased, and it is independent of the assaults. (i) **Injuries sustained by the Deceased** [122] There is no evidence placed before the court that before the 3rd of September 2021, the deceased had sustained any physical injuries. PW1- Lekhooa Monaleli stated that he observed that the deceased had a bruise on the right eye and multiple bruises on the forehead. On Monday, the 6th of September 2021, the accused admitted to PW1 that he assaulted the deceased; the reason the accused gave for assaulting the deceased was that the deceased was talking rubbish and that the deceased could not understand him when the accused talked to her. The accused went further to tell PW1 that assaulting the deceased was the only way that would make the deceased submissive to him. During the cross-examination, the accused did not deny that he admitted to PW1 that he assaulted the deceased. PW1 was cross-examined that he did not tell the court how the accused assaulted the deceased, but he insisted that the conversation was not about how the assaults were carried out. I want to state that it is a matter of common cause that the accused and PW1 have been good friends since their childhood. This fact is demonstrated by the fact when the deceased fainted, the accused called PW1 for transport to convey the deceased to the hospital. Lekhooa Monaleli, out of goodwill, secured an appointment for the accused and the deceased for counselling. I don’t find any reason why PW1 would lie that the accused admitted to him that he assaulted the deceased. [123] PW2-Rorisang Mofolo said she called the deceased through a video call. She observed that the deceased had red patches on the forehead, and the forehead was swollen. She testified that she insisted that the deceased should remove the pillow from her face, and she observed that the deceased had a blue eye. While the deceased was admitted at Maseru Private Hospital, she observed that the deceased had scratches on the neck. She explained to the court that the scratches appeared to have been caused by fingernails. She testified that on the 13th of September 2021, the accused admitted to her that he assaulted the deceased with fists. [124] Under cross-examination, it was suggested to the witness that the accused never said he assaulted the deceased. The witness was adamant that the accused told her that he assaulted the deceased with fits. Under cross-examination, it was suggested to the witness that the deceased sustained the injury on the left eye and forehead when she fainted and fell in the bathroom. The witness replied that when she asked the accused if he used any object in assaulting the deceased, the accused said he assaulted the deceased with his bare hands. [125] PW3- Inspector Moeketsi indicated that the accused freely and voluntarily, in the presence of his legal representative, gave out an informal admission that he assaulted the deceased with fists on the 3rd of September 2021. In his explanation, the accused said he first slapped the deceased on the left side next to the eye, then assaulted her with fists above the left eye. He said the deceased tried to block the blows, and he twisted her hand. In his informal admission, the accused did not say that the deceased sustained any injuries when she fell in the bathroom. [126] In addition, PW3 testified that on the 18th of September 2021, she observed that the deceased had a bruise on the forehead towards the left side, a bruise on the left eye, a small wound on the chin, scratches on the neck, scratches on the chest and it was swollen. [127] Doctor Hoedoafia testified that the deceased complained of general body pains. He observed bruises on the left side of the head and left the orbital area, and the deceased experienced pain on the left side of the neck, a contusion of the left eye and it was swollen, a patch on the left side of the neck, with bleeding under the skin, and tenderness along the left side of the body. He said the deceased did not have any broken bones. Doctor Hoedoafia noted that there was an injury close to the central part of the head and multiple impacts on the head and the neck. There was tenderness on the left side of the body, and whenever he touched the left side of the body, the deceased groaned in pain. He said he instructed the deceased to have a CT scan because of the impact he observed on the deceased’s head and neck. Doctor Hoedoafia added that the accused admitted to him that he assaulted the deceased. He said he asked the deceased what he used in assaulting the deceased. The accused said he used fists. The accused did not challenge this piece of evidence under cross-examination. [128] PW5- Tselane Motsie, the nursing assistant, said she observed the wound on the face, a bruise on the left eye, and that the deceased complained of neck pain. [129] PW6- Doctor Phakoana- the pathologist, said he observed the following injuries on the deceased: multiple bruises on the chest, a bruise on the face left eye (blue eye), bruises and scratches on the neck, subcutaneous bleeding in the muscle of the neck and scalp. There was a massive collection of blood in the thoracic cavity-(right) a massive collection of blood in the thoracic cavity (left). Collection of blood in the peritoneal cavity- a lot of blood (peritoneum and peritoneal sac). Laceration of the liver with a lot of blood in the peritoneal cavity. [130] DW1- Doctor Mosese said he observed that the deceased had a bruise on the left eye. Upon examination, he observed that there was tenderness on the abdomen. He was adamant that the deceased did not have any other injuries except the injury on the left eye. (ii)**Corroboration** [131] All the crown witnesses corroborate each other that the deceased had what is usually referred to as a blue eye. Doctor Mosese, the defence witness, also corroborates this evidence that the deceased had a blue eye. Lekhooa Monaleli-PW1, Rorisang Mofolo-PW2, Inspector Moeketsi-PW3, Doctor Hoedofia-PW4, and PW6- -Doctor Phakoana corroborate each other that the deceased had sustained an injury on the forehead. Rorisang Mofolo- PW2; Inspector Moeketsi- PW3; Doctor Hoedoafia- PW4; and Doctor Phakoana- PW6 corroborate each other that the deceased had scratches on the neck. Doctor Phakoana went further to state there was bleeding in the muscle of the neck. Rorisang Mofolo said the scratches on the neck appeared to have been caused by fingernails. In addition, the evidence of Inspector Moeketsi that the deceased had bruises on the chest was corroborated by Doctor Phakoana, who confirmed that the deceased had bruises on the chest. It is important to note that PW1, PW2 and PW4 saw the deceased while she was still alive, with the injuries that they observed on her. After her death, PW3 and PW6 saw the body of the deceased and observed the same injuries that were observed on the deceased while she was still alive. [132] Be that as it may, Doctor Mosese was adamant that the deceased only sustained an injury on the left eye (blue eye). He said he undressed the deceased, and the deceased did not have any other injuries. The must state with due respect that Doctor Mosese is not a credible witness because there was no way a doctor who claimed to have examined the deceased could have missed that the deceased had sustained injuries which were visible even to lay people like PW1 and PW2. The find his evidence in this regard untruthful and incredible, and it is rejected. (iii)**Cause of Deceased’s Injuries** [133] Having satisfied himself that the deceased sustained the injuries described in the preceding paragraphs, the court must determine who or what caused those injuries. It is worth mentioning at this stage that during arguments, Adv. Molapo, the defence counsel, conceded that the deceased was the one who assaulted the deceased. However, this court will, for a moment, ignore that concession and consider the evidence presented. [134] Lekhooa Monaleli said the accused had been his friend since childhood. The accused person, in his informal admission to Inspector Moeketsi, said on Friday preceding the incident that led to the deceased’s death, he had gone out for drinks with Lekhooa Monaleli. When the deceased fainted on Saturday, the accused called Lekhooa Monaleli for assistance with transport. Lekhooa Monaleli kept in contact with the accused about the condition of the deceased. During the week, when the deceased fainted again, the accused called Lekhooa Monaleli to assist with transport. I am trying to demonstrate the friendly relationship between the accused and Lekhooa Monaleli. Lekhooa told the court that he had his private moment with the accused, where the accused told him that he assaulted the deceased because he wanted the deceased to be submissive to him. Lekhooa Monaleli said he told the accused that he should not resolve family disputes through violence. The accused asserted that, as men, they had different ways of resolving disputes. Having considered the nature of the friendship that they had, coupled with the fact that the accused confided and trusted him, I do not find a reason why Lekhooa Monaleli would falsely implicate the accused in the assault towards the deceased. I, therefore, find Lekhooa Monaleli’s evidence credible and truthful. [135] Rorisang Mofolo- PW2 said she spoke with the accused over the phone, and she said she asked the accused what he assaulted the deceased with. She said she asked that question because it was suspected that the deceased had a head injury. She said the accused said he assaulted her with fists. This witness was not shaken under cross-examination, and she stood her ground. I have no reason not to believe that her evidence is credible in this regard. [136] The court ruled that the informal admission made by the accused to Inspector Moeketsi was admissible as it was made freely and voluntarily. In informal admission, the accused said he assaulted the deceased with a slap and fists, and when the deceased blocked the blows, he twisted her hand. I, therefore, do not doubt in my mind that the accused assaulted the deceased on the 3rd of September 2021. [137] Doctor Hoedoafia said the accused told him that he assaulted the deceased with fits. He said that he recommended that both go for counselling. The defence did not challenge Doctor Hoedofia’s evidence that the accused told him that he assaulted the deceased with fists. I, therefore, do not doubt in my mind that the accused assaulted the deceased on the 3rd of September 2021. (iv)**Symptoms of Internal Bleeding** [138] Doctor Hoedoafia, Doctor Phaloana (Pathologist), Doctor Mosese and Doctor Moopela agreed that the symptoms associated with internal bleeding in the chest cavity, head cavity and abdominal cavity are the following: fainting, convulsions, vomiting, shortness of breath, dizziness, confusion, and chest pains. It is a matter of common cause that the deceased experienced all these symptoms after she had been assaulted by the accused. The post-mortem report shows blood collection in the brain's subdural space. All this says is simply that there was internal bleeding in the head cavity. For there to be bleeding in the head cavity means that there must have been an assault directed at the head. Additionally, the post-mortem report shows that there was a collection of blood in the thoracic cavity (chest cavity) on the right and a massive collection of blood in the left thoracic cavity (chest cavity). In the same way, this indicates that there must have been an assault or trauma directed to the chest cavity. Furthermore, the post-mortem report shows that there was a collection of blood in the peritoneal cavity (abdominal cavity) - “**a lot of blood** ”. By the same token, trauma had been directed to the abdominal cavity. Lastly the post-mortem shows that there was laceration of the liver with a lot of blood in the peritoneal cavity. There is no doubt that there was trauma directed to the abdominal cavity, which caused the laceration to the liver, resulting in bleeding in the abdominal cavity. As I have already found that the accused is the one who assaulted the deceased, I find further that the internal bleeding in the chest cavity, head cavity and abdominal cavity was caused by the assault meted out to the deceased by the accused on the fateful night. (v)**Cause of Death** [139] The post-mortem report shows that death was due to traumatic internal bleeding. Doctor Mosese disputed that the cause of death was traumatic internal bleeding. He was adamant that the deceased’s cause of death was pulmonary embolism. He explained that pulmonary embolism occurs if a clot forms somewhere in the body, and when it dislodges, it may block the blood vessels to the heart or the lungs. He said if the pathologist had opened the vessel to the heart, he would have found the blood clot. [140] The post-mortem report shows a laceration on the liver with a lot of blood in the peritoneal cavity. Doctor Moopela- DW2 said the injury on the liver could have occurred because of resuscitation. He explained that the deceased’s ribs must have been fractured during the resuscitation process, thus causing the laceration on the liver. According to him, the laceration on the liver could not be attributed to the assaults meted out to the deceased by the accused. It is pertinent to mention that Doctor Moopela did not see or examine the deceased during her lifetime. His conclusion that the laceration of the liver was caused by resuscitation is a speculation. Be that as it may, I must mention that Doctor Hoedoafia, who examined the deceased on the 4th of September 2021, testified that the deceased did not have any fractured bones. The defence did not rebut this evidence when Doctor Hoedoafia was being cross-examined. Doctor Phakoana- the pathologist who conducted the post-mortem examination, did not find any fractured bones on the deceased. The defence did not suggest to Doctor Phakoana that the deceased had fractured ribs, which caused the laceration of the liver. It is, therefore, obvious that this was an afterthought. (vi)**Expert Witness** [141] Doctor Phakoana was presented to the court as an expert witness. The expert witness should bring specialised knowledge to the court. [13] The specialised knowledge could be either experience, training, or study-based and the testimony must be entirely or substantially based on the specialized knowledge of the expert. Even where such expert knowledge is placed before the court, a court is not bound by, nor is it obliged to accept, the evidence of an expert witness: “ _It is for (the presiding officer) to base his findings upon opinions properly brought forward and based upon foundations which justified the formations of the opinion. ”**[14]** _ _And:_ _“(A) Court should not blindly accept and act upon the evidence of an expert witness, even of a fingerprint expert, but must decide for itself whether it can safely accept the expert’s opinion**[15]**”. _ [142] The court should actively evaluate the evidence. The cogency of the evidence should be weighed “in the contextual matrix of the case with which (the court) is seized[16]” should be subject of the assessment does not testify, it would render the views of the expert meaningless as it was based on the untested hearsay of the subject of the assessment. In **_S v Shivute_**** _**[17]**_****_,_** the court, confronted with exactly this situation, held that “[t]he accused failure to testify stripped the opinion evidence of the expert witness of almost all relevance and weight”. The principle was re-stated in **_S v Mngomezulu**[18]** _**_In fin, the court said that “unless the psychiatric or psychological evidence is linked to the facts before the court, it is just abstract theory.”_ [143] Applying the principles enunciated in the above cases, this court has based its findings upon opinions presented before the court by the expert witness. This court is aware that it should not blindly accept and act upon the evidence presented by the expert witness, but it must decide whether it can safely accept the expert’s opinion. This court has considered that it was the accused who assaulted the deceased. After the assault, the deceased fainted and had convulsions, vomited, had shortness of breath, and was confused and dizzy. It is a matter of common cause that all these symptoms were consistent with internal bleeding in the head cavity, chest cavity and abdominal cavity. The expert found a laceration of the liver and a lot of blood in the abdominal cavity. The crown witnesses said the deceased had scratches or marks on the neck. The expert’s opinion was that there was subcutaneous bleeding in the muscles of the neck and scalp. The expert’s opinion is consistent with the crown witnesses’ evidence that the deceased had scratches, marks or bruises on the neck. The crown witnesses said the deceased had bruises on the chest. The expert’s opinion was that there was a massive collection of blood in the thoracic cavity, both left and right. The internal bleeding in both the left and right thoracic cavities is consistent with the crown's witnesses that the deceased had bruises on the chest. There was evidence by crown witnesses that the deceased complained of general body pains. Doctor Hoedoafia said there was tenderness on the left side of the body, and when he touched the left side of the body, the deceased groaned with pain. The expert’s opinion was that there was a collection of blood in the peritoneal cavity- the abdominal cavity. The internal bleeding in the peritoneal cavity and the laceration of the liver are consistent with the tenderness that was observed on the left side of the body and the general pain the deceased experienced when Doctor Hoedoafia touched the left side of the body. Having considered the totality of the evidence presented before the court, I accept the expert’s opinion that death was due to traumatic internal bleeding. (vii)**Failure by Accused to Testify** **in His Defence** [144] The accused chose not to take the witness stand in his defence. I must state from the onset that the accused has a constitutional right to give evidence in his defence if he so wishes. In exercising that right, however, the accused, where the crown has established a prima facie case, takes a risk that it might turn out to be sufficient proof. See **_Osman and Another v Attorney General Transvaal_******[19]******,** where it was held. “… _in an adversarial system, once the prosecution had produced evidence sufficient to establish a prima facie case, an accused who failed to produce evidence to rebut that case was at risk. The failure to testify did not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that in the absence of any rebuttal, the prosecution’s case might be sufficient to prove the elements of the offence”._ [145] The Court of Appeal of Botswana in holding that the constitutional right to silence does not preclude the presiding officer from considering as part of the overall assessment of the case, the accused’s silence in the face of a prima facie case established by the prosecution. In **_S v Sidziya and Others_**** _**[20]**_****, Naicly A. J** put it this way: “ _The right means no more than that an accused person has a right of election whether or not to say anything during the plea proceedings or during the stage when he may testify in his defence. The exercise of right like any other involves the appreciation of the risk which may confront any person who has to make an election in as much as skilful cross-examination could present obvious dangers to an accused, should he elect to testify, there is no sound basis for reasoning that, if he elects to remain silent no inference can be drawn against him”._ [146] In **_Murray v D. P. P_**** _,_****_**[21]**_****__****Lord Slynn** held that if the aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation, common sense allows the drawing of an inference that there is no explanation and the accused is guilty. See also: **_Lerato Mahanye and Another v Rex_**** _**[22]**_**. [147] I have assessed that the prosecution has established a prima facie case against the accused. The accused's decision not to present evidence supports the prosecution's case. Consequently, the accused cannot request the court to believe his version of events when the prosecution has already made a prima facie case against him. (viii)**Circumstantial Evidence** [148] When dealing with circumstantial evidence, the Supreme Court of Appeal in **_S v. Reddy and Others_**** _**[23]**_****,** stated as follows. “ _In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in**R v Blom**[24]**, **where reference is made to two cardinal rules of logic, which cannot be ignored. These are firstly that the inference sought to be drawn must be consistent with all the proved facts and secondly, the proved facts should be such that they exclude every reasonable inference from them, save the one sought to be drawn”_. [149] The sentiments expressed by the Supreme Court of Appeal in **_S v. Ntsele**[25]** _**are relevant, where it held that the onus rests upon the state in circumstantial proceedings to prove the guilt of the accused beyond a reasonable doubt, not beyond all shadow of light. The court in **_Ntsele case_** _(supra),_ further held that when dealing with circumstantial evidence, the court was not required to consider every fragment individually. It was the cumulative impression, with all the pieces of evidence made collectively, that had to be considered to determine whether the accused’s quilt had been established beyond reasonable doubt. Courts are warned to guard against the tendency to focus too intensely on separate and individual components of evidence and view each component in isolation. [150] I have considered the evidence presented in court in totality. I have considered that it is a matter of common cause that the deceased was assaulted. The deceased was not only assaulted but was assaulted by the accused. The deceased was presented with injuries on the face (blue eye and patches on the forehead), bruises on the left side of the head, scratches on the neck, bruises on the chest and tenderness on the left side of the body. The deceased had a laceration of the liver. In addition, the deceased had internal bleeding in the head cavity, chest cavity and abdominal cavity. When considering the evidence in totality, it shows that there was trauma to the head, the chest, and the abdominal area. The court was told that the marks on the neck appeared like finger marks. This piece of evidence shows that the accused strangulated the deceased. That is why the post-mortem report indicates that there was subcutaneous bleeding in the muscles of the neck and scalp. In addition, the bleeding in the muscles of the scalp also demonstrates that there was trauma to the head. The bruises on the chest cavity and the massive collection of blood in the thoracic cavity (right and left) suggest that there was trauma to the chest area of the deceased. The laceration of the liver and a massive collection of blood in the peritoneal cavity show that there was trauma in the abdominal cavity. The inference that the accused assaulted the deceased is consistent with all the proven facts, and the proven facts exclude every reasonable inference from them, save the inference drawn from the proven facts that the accused assaulted the deceased, causing the injuries that the deceased sustained. (ix)**_Novus Actus Interveniens_** [151] Adv. Molapo submitted that even if it were to be found that the deceased died from internal bleeding as alleged by the pathologist, the assaults by the accused on the deceased are not the ones which caused her death, but there was an intervening act, which is the delay to get medical attention. The internal bleeding acted as a _novus actus_ interveniens, and it contributed causatively to the death of the deceased, and it is independent of the assaults. [152] The evidence presented in court was that the deceased was taken to Willies Clinic on the 4th of September 2021, after collapsing. It is a matter of common cause that the accused assaulted the deceased on Friday, the 3rd of September 2021. The deceased did not get better and was then taken to Maseru Private Hospital and then eventually transferred to Pelonomi Hospital, where she died. No evidence was presented in court that the deceased sustained other injuries except those that were inflicted on her by the accused. [153] In a nutshell, the defence argued that the crown has failed to prove that the injuries, admittedly caused by the accused, were the cause of death of the deceased. The post-mortem report shows that the cause of death was traumatic internal bleeding. When the deceased was carried to the hospital, the injuries mentioned by the crown witnesses were the only injuries the deceased had. When the post-mortem was made, the injuries sustained by the deceased were still the only ones she had. [154] In the case of **_Piet Letuma v Rex_**** _**[26]**_** the Judge said: “ _I need hardly add that in many cases, the evidence can be such that without a medical opinion at all, a magistrate may, on lay evidence, find what is the cause of death of general terms. It is ultimately the judicial opinion that matter; doctor’s opinion is merely a guide. Where, for example, a witness X sees Y stab Z ten times and sees Z die immediately, the Magistrate will have little difficulty in concluding not only that Y caused the death of Z but also if Z was well and healthy before, that the wounds inflicted by Y were the cause of death. How it occurred precisely may not be available except by medical evidence. Still, its absence, in my judgment, does not preclude the Magistrate from making a finding if it is warranted by other evidence. (See Lesotho High Court Criminal Appeal,**Thabiso Tsomela v. Rex******[27]****. In **Sibanda and Others v State**[28]**** the Appellate Division held per **Wessels, JA** :_ _“The State was not required to demonstrate the cause of death with scientific exactness and as a medical fact beyond dispute. It must only prove beyond reasonable doubt that the deceased died as a result of an injury caused by the accused”._ [155] **Delvin, J** (as he then was), in his charge to the jury in **_R v Bodkin Adams 1957_**** _**[29]**_****,** told them: “ _Cause means nothing physiological or technical or scientific. It means that you twelve men and women sitting as a jury in the Jury box would regard in common sense was as the cause of death”._ [156] In the present case, there is medical evidence which excludes the possibility of death from natural causes. The body of the deceased was examined by the doctor, who found that the cause of death was traumatic internal bleeding. It follows that the only abnormal feature which caused the death of the deceased was the assaults meted out on the deceased’s body. The internal bleeding was linked with the assaults meted out to the deceased, and the two, namely the assaults and the injuries resulting in internal bleeding, cannot be separated. [157] There is evidence by the crown witnesses indicating the injuries that were inflicted on the deceased. The pathologist corroborates the injuries observed by the crown witnesses while the deceased was still alive. The pathologist corroborates the injuries observed by the police officer who examined the body after the death of the deceased. There is evidence that the deceased was taken for medical attention from the first day she collapsed. Doctor Hoedoafia, Doctor Kolobe and Doctor Mosese examined the deceased in Pelonomi Hospital. The deceased was a healthy person before she was assaulted by the accused. She was working at Vodacom Lesotho. After she was assaulted by the accused, she was taken for medical treatment. She had no injuries except those caused by the accused. I conclude that there was no novus actus interveniens and that the deceased died because of the injuries caused by the accused. (x)**Intention** [158] Adv. Molapo argued that the crown has, at best, proven a case for assault GBH, but as for the charge of murder, the crown has failed to satisfy the requirements of mens rea. He added that the accused never had the intention to kill the deceased and that the deceased died from a natural cause of death, as reported by Doctor Mosese. He submitted that the court should acquit the accused. However, suppose the court finds that the accused contributed to the cause of death of the deceased. In that case, he should be found guilty of culpable homicide because the accused acted positively after the assault, and the internal bleeding could not be foreseen. [159] Adv. Joala, on the other hand, submitted that when the accused assaulted the deceased with severe force, he foresaw the possibility of death ensuing; however, with reckless disregard, he reconciled himself with the foreseen outcome, particularly when he strangulated the deceased and bumped her head against the floor and wall, he foresaw the possibility that she could die. Assaulting the deceased all over the body, especially on the left of the body, with severe force caused the accused to see the possibility of death ensuing; however, with reckless disregard, he continued. [160] When dealing with _dolus eventualis_ , the Court of Appeal in the case of **_Keketsi and Others v Rex_**** _**[30]**_**, **Majara CJ** (_ex officio)_ , _Cleaver AJA_ , and _Musonda AJA_ , remarked that _dolus eventualis_ has been dealt with and applied in many past decisions such as in the case of **_S vHumphreys**[31]**_** in which the Court [ at para 12] had this to say- “ _12…In arriving at the conclusion that he did, the court accepted rightly in my view, that the appellant had no desire to bring about the death of his passengers. Consequently, it found that the appellant did not have dolus directus or direct intention. What the court did find was that he had intent in the form of dolus eventualis or legal intent. In accordance with trite principles, the test for dolus eventualis form is twofold_ ”. 1. Did the appellant subjectively foresee the possibility of the death of his passengers ensuing from his conduct; and 2. Did he reconcile himself with that possibility (see **_S v De Oliveira_**** _**[32]**_****_)_**. Sometimes, element (b) is described as “recklessness” as to whether or not the subjectively foreseen possibility ensues (see **_S v Seqwahla**[33]**_**). [161] In the case of **_DPP Gauteng v Pistorius_**** _**[34]**_****__** the Supreme Court of Appeal of South Africa, per **Leach JA** , instructively stated as follows in relevant parts of paragraph 26- “ _26…In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises, if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore “gambling” as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act “reckless as to the consequences” (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence or must have been “reconciled” with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to see death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen, which, coupled with a disregard of the consequence, is sufficient to constitute the necessary criminal intent”._ [162] I have already found that the accused is the one who assaulted the deceased. The accused inflicted severe injuries on the deceased’s head, chest and abdomen. These injuries caused the massive collection of blood (internal bleeding) in the chest cavity, abdominal cavity, and subdural space of the brain. The internal bleeding in these cavities shows that severe force was applied to these cavities. The pathologist found subcutaneous bleeding in the muscles of the neck and scalp. Some witnesses observed finger marks on the deceased’s neck. The bleeding in the muscles of the neck clearly shows that the accused strangulated the deceased. The pathologist found a laceration of the liver and a lot of blood in the peritoneal cavity. This indicates that the accused applied severe and considerable force while assaulting the deceased in the peritoneal cavity. All crown witnesses, together with Doctor Mosese, observed that the deceased had a blue eye on the left eye. This is an indication that considerable force was applied to the deceased’s face while she was being assaulted. **CONCLUSION** [163] I therefore conclude that in assaulting the deceased, the accused was reckless of the fact that she might die. The deceased was assaulted indiscriminately on the delicate parts of the body, namely on the head cavity, chest cavity and abdominal cavity. The accused foresaw the risk of death occurring but nevertheless continued to assault the deceased, appreciating that death might well occur, therefore gambling as it were with the life of the deceased. The accused assaulted the deceased with fists. This showed total disregard for the deceased’s life. The totality of the evidence successfully established that the accused subjectively reconciled himself with the ensuing death, which he must have foreseen. The accused is, therefore, guilty of murder on the basis of _dolus eventualis._ My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [164]_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._ [165] In the case of **_Lefaso V Rex_**[35], **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_ ”. [166] In **_Letuka v Rex_**[36], **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[37]. [167] The Court of Appeal in the **_Letuka case_** (_supra_) stated that there is ample authority 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_**[38] and **_S v Petrus_**[39]. [168] 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_**[40], **_Mohlalisi and Others_**[41]), 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_**[42]). [169] 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**[43]**”. _ [170] After careful consideration of the principles enunciated in the cases referred to above, I conclude that the following extenuating circumstances exist in favour of the accused to wit; (i) The accused had been drinking alcohol before the commission of this offence. (ii) There is an absence of dolus directus, as the accused has been convicted of murder with _dolus eventualis_. (iii) The accused did not premeditate the killing of the deceased. [171] The court has now come to the most challenging trial stage, passing the appropriate and just sentence that will serve the interests of justice. In passing a sentence, this court should consider three main factors: the nature of the offence, the interests of the accused, and the interests of society. [172] In the matter of sentencing mitigation, Advocate Molapo presented several compelling points regarding the accused's circumstances. He emphasized that on the night of the incident, the accused had been consuming alcohol alongside PW1, which contributed to his impaired judgment. Following the altercation, the accused demonstrated a sense of responsibility by promptly ensuring that the deceased received medical attention for the injuries sustained. [173] The violent incident occurred during the height of the COVID-19 lockdown, a time marked by heightened tensions and an alarming rise in domestic violence, as families were confined together with limited opportunities for social interaction. Additionally, the advocate highlighted the socio-economic dynamics within the household, noting that the deceased was the sole breadwinner. This reality fostered an inferiority complex in the accused, who felt belittled and overshadowed by the deceased's employment status. [174] Furthermore, it was pointed out that the accused is a single parent, bearing the significant responsibility of raising two young children, aged twelve and seven. Imposing a custodial sentence would place the children's welfare at risk, leaving them without a caregiver during their formative years. The deceased's sister, PW2, along with the accused's older brother, each have their own familial obligations and are not in a position to assume responsibility for the accused's minor children. [175] In addition to his parenting duties, the accused also cares for his ailing 75-year-old mother, further illustrating the weight of his familial commitments. The advocate noted that both the accused and his children have been actively participating in counseling sessions, which reflect the accused's sincere desire for rehabilitation and improvement. [176] A dedicated Christian, the accused regularly attends church, showcasing his commitment to his faith and community. Given these factors, Advocate Molape argued that the accused should be afforded the opportunity for rehabilitation rather than a lengthy prison sentence, proposing a term not exceeding ten years. This approach would allow him to continue caring for his children while also addressing his personal issues. The assaults on the deceased were not brutal because if they were brutal, the deceased could have died instantly. **AGGRAVATION OF SENTENCE** [177] Advocate Mapesela articulated that the court must deliver a sentence that unequivocally communicates to both the accused and the wider community that the judicial system will not stand for Gender-Based Violence (GBV). The accused, exploiting his physical strength, viciously attacked a defenseless and vulnerable woman, fully aware that she stood little chance of defending herself against his superior musculature. The stark reality of this confrontation underscores the tragic power imbalance, highlighting the serious implications of such acts against those unable to protect themselves. [178] I agree with the sentiments which were stated in an article: **_Crime and Punishment in South Africa 1975_**** _,_**_page 150,****_ where Nicholus stated as follows: “A _criminal sentence cannot, in the nature of things, be a matter of precise calculation…There are no scales by which these matters can be measured and there is no relationship which makes it possible to express them in terms of punishment. You must understand that sentencing is an integral part of the punishment system. Its purpose is not so much to please the community as it is to serve the interests of society. The courts exist through the will of the people and are therefore merely instruments by which or through which society exerts punishment on offenders. So, when this court imposes a sentence on you, know that it is the will of the people that is brought to bear on you. Gone are the days when, in exerting punishment on the offender, the victim, or his or the people on his behalf, took the law into their hands”._ [179] I align myself with the remarks made in **_The State v Obakeng Grious Skhosana**[44]**_** , that it is commonly accepted that there are many purposes of sentencing. There is firstly, the desire to punish a person who is a wrongdoer who has offended against society and who has caused harm to others. There is secondly, the intention to prevent the wrongdoer from committing such offence again. This is the individual deterrence consideration that the wrongdoer, he or she will be deterred from engaging in actions which lead to or are themselves criminal. In the case of certain offences, particularly those thought to be more frequently committed in society and more destructive to society, there is the purpose of sending a message to other persons that they should not engage in this kind of activity on wrongdoing. Fourthly, there is the hope that whatever sentence is imposed can possibly lead to rehabilitation. [180] I have considered that the individual in question is a first-time offender. This indicates that he does not have a history of illegal behavior or a tendency to break the law. Given these circumstances, it is important to recognize the accused as a person who has made a mistake and deserves an opportunity for redemption. Furthermore, the accused is the primary caregiver for their two young children, serving as the family's main source of financial support. This added responsibility highlights the importance of granting him a second chance to rebuild his life and care for their children. [181] This court acknowledges with deep concern the disturbing rise in Gender-Based Violence (GBV) against women, which has reached alarming levels. It is imperative for the judiciary to safeguard women's rights and well-being, particularly in situations involving intimate partners, whether they be husbands or lovers. To effectively fulfil this protective role, courts must impose stringent penalties on perpetrators of GBV. Such decisive actions serve not only to punish those who commit these acts but also to send a clear and powerful message to society: that Gender-Based Violence will not be tolerated and will face serious consequences. This court acknowledges with deep concern the disturbing rise in Gender-Based Violence (GBV) against women, which has reached alarming levels. It is imperative for the judiciary to safeguard women's rights and well-being, particularly in situations involving intimate partners, whether they be husbands or lovers. To effectively fulfill this protective role, courts must impose stringent penalties on perpetrators of GBV. Such decisive actions serve not only to punish those who commit these acts but also to send a clear and powerful message to society: that Gender-Based Violence will not be tolerated and will face serious consequences. [182] I have considered that you have taken the life of another person, who was your spouse, and you have two minor children with her. There is no possibility that any sentence imposed by this court can match the loss of “Mahlompho Matela of her continuing life. In **_S v C 1996 (2) SACR 181 (C)_ ,** it was held that: “ _society demands protection in the form of a heavy and deterrent sentence from the courts against such atrocious crimes”._ [183] After careful consideration, I've reflected on the fact that the accused is a first-time offender. This designation implies that he is not someone who typically finds himself in conflict with the law; rather, he appears to be an individual who has strayed from the right path, perhaps momentarily. In light of this, I believe it is essential to extend compassion and offer him a second chance at life. He should be viewed not just as someone who faltered, but as a fallen angel, deserving of redemption and the opportunity to reintegrate into society with the support he needs to mend his ways. [184] I observed the accused's demeanour during the trial and formed the opinion that he did not show remorse for his actions. [185] In recent years, there has been a troubling increase in incidents of reckless murder, a phenomenon that points to a profound devaluation of human life. Many individuals no longer perceive life as a sacred gift, bestowed by a higher power, leading to a disturbing trend where lives are taken carelessly and without remorse. This growing disregard for the sanctity of life has prompted me to take judicial notice of a significant decline in public confidence in our courts and the broader criminal justice system. The pervasive sentiment is that individuals who commit acts of murder often evade immediate legal scrutiny, allowing them to remain at large and, disturbingly, to perpetrate further crimes without any apparent fear of consequence. As courts, we are constitutionally mandated to uphold and protect human life, and it is imperative that we reaffirm our commitment to this duty. [186] This court has expressed profound concern regarding the diminishing trust that society places in the administration of justice and the criminal justice system. It has become imperative for this court to take decisive actions aimed at restoring public confidence in these vital institutions. It is well-documented that the tragic and frequent killings of women and children have become a pervasive issue in our nation. These vulnerable groups, often helpless and at the mercy of violent acts, deserve robust protection, and it is incumbent upon this court to ensure their safety and well-being. [187] In order to fulfil this protective role, this court recognizes that it must impose stringent and deterrent sentences that not only punish the offenders but also send a clear message to would-be criminals. The objective is to dissuade them from engaging in such appalling acts. By delivering tough sentences for these reprehensible crimes, the court seeks to uphold the sanctity of human life and affirm its commitment to safeguarding the lives of women and children. In doing so, the court aims to reinforce the principle that society will not tolerate violence against its most vulnerable members. [188] It is crucial to underline the gravity of murder as the most heinous of crimes. The tragic act of unlawfully taking the life of ‘Mahlompho Matela has had far-reaching consequences, not just for her immediate family and close relatives but also for her circle of friends and, most heartbreakingly, for her young children, who are still in their formative years. By causing Mahlompho's untimely death, you have shattered the foundation of love and support that she provided, depriving her children of the nurturing presence of their mother during those vital early years of their lives when her guidance and affection were needed the most. The void left in their hearts and lives is profound and irreplaceable, creating an emptiness that will resonate with them forever. [189] As the husband and father, you bore a profound moral responsibility to safeguard your family, particularly the life of ‘Mahlompho Matela. It is a tragic twist of fate that you, who were meant to be their protector, ended up being the one who unjustly severed ‘Mahlompho Matela’s life from her young children, leaving them to navigate the early and formative years of their lives without her love and guidance. [190] This court concludes that the most appropriate sentence that will serve the interests of justice is the following. **ORDER** 1. The accused is sentenced to twenty-four (24) years imprisonment. My Assessor Agree. **_________________________** **T. J. MOKOKO** **JUDGE** **FOR THE CROWN :** ADV. JOALA **FOR THE ACCUSED :** ADV. MOLAPO * * * [1] S v Cele 1965 (1) SA 82 (A) [2] Principles of Evidence Schwikkard Van Der Merwe Page 299. [3] S v Thwala 1991 (1) SACR 494 (N), where the court excluded an admission made after lengthy and traumatic interrogation. [4] In Rex v Dlaminini 1949 (3) SA (N) 979, the court held that the words “You must realise you stand at the prison doors and that you must speak the truth” did not amount to a threat or promise… [5] Hoffman & Zeffert 203. The courts have held that a person in authority includes a magistrate, police officer, and a complainant, and in R v Dlamini 1949 (3) SA 976 (N) it was held to include a complainant’s employer. [6] 1926 A. D 425 at 462 [7] (116/02) [[2006] ZASCA 123](/akn/za/judgment/zasca/2006/123); [2007] 2 ALL SA 373 (SCA) [8] Page 497 [9] [[2015] ZASCA 204](/akn/za/judgment/zasca/2015/204); [2016] 1 ALL SA 346 (SCA) at para 26 [10] (2000-2004) 763 at 768 [11] LAC (1980-1984) 72 at 77 [12] 2000 (1) SACR 633 (SCA)**** [13] Holtzhauzen, page 9 at 772 C. [14] Rex v Theunissen 1948 (4) S. A 43 (C). [15] Rex v Nksatlaba 1960 (3) S. A at 548 C-D. [16] S v M 1991 (1) SACR 91 at 100 a. [17] 1991 (1) SACR 656 (NM) at 661 H [18] 1972 (1) S. A at 798 F-799 [19] 1998 (4) SA 1224 [20] _1995 (12) BLLR 1626_ _at 1648_ [21] _1994 WLR (HL)_ [22] _LLRLB 1999- 2005 105 at P. 126_ [23] 1996 (2) SACR 1 (A) at 8 C-D [24] 1939 A. D 188 at 202-203 [25] 1998 (2) SACR 178 (SCA) [26] (Criminal Appeal 44/75- unreported [27] 1974-1975 L. L. R 97 at 98 [28] 1969 (1) P. H. H 122 [29] Criminal Law Report page 365 [30] LAC 2015-2016 412 at page 419 [31] 2013 (2) SACR 1 (SCA); 2015 (1) SA 419-420 (SCA) [32] 1993 (2) SACR 59 (A) at 65 i-j) [33] 1967 (4) SA 566 (A) at 570 [34] [2016] 1 ALLSA 346 (SCA) [35] LAC 1990- 1994 44 [36] LAC 1995- 1999 405 [37] LAC 1995-1999 at P 405 [38] 1980 (3) SA 825 (A) [39] 1969 (4) SA 85 (A) [40] 1992 (1) SACR 628 (C) [41] LAC (1980 – 1984) 110 at 117 [42] 1990 (1) SACR 426 (A) [43] LAC 1995 – 1999 at P 423 [44] Case Number: 20/2017 at para [4] page 2 #### __Related documents ▲ To the top >