Rex V Tsoelesa Molata (CRI/T/0010/2023) [2024] LSHC 237 (29 November 2024)

# Rex V Tsoelesa Molata (CRI/T/0010/2023) [2024] LSHC 237 (29 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/237/eng@2024-11-29) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/237/eng@2024-11-29) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/237/eng@2024-11-29) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/237/eng@2024-11-29) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Tsoelesa Molata \(CRI/T/0010/2023\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/237/eng@2024-11-29) [ Download PDF (370.4 KB) ](/akn/ls/judgment/lshc/2024/237/eng@2024-11-29/source) Report a problem __ * Share * [ Download PDF (370.4 KB) ](/akn/ls/judgment/lshc/2024/237/eng@2024-11-29/source) * * * * * Report a problem __ ##### Rex V Tsoelesa Molata (CRI/T/0010/2023) [2024] LSHC 237 (29 November 2024) Copy citation * __Document detail * __Related documents Citation Rex V Tsoelesa Molata (CRI/T/0010/2023) [2024] LSHC 237 (29 November 2024) Copy Media Neutral Citation [2024] LSHC 237 Copy Hearing date 20 November 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0010/2023 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 29 November 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Criminal law](/taxonomy/case-indexes/case-indexes-refugees-criminal-law) * [Murder](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-murder) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** **CRI/T/0010/2023** In the Matter Between **REX CROWN** And **TS’OELESA MOLATA ACCUSED** _Neutral Citation_ :**** Rex vs Ts’oelesa Molata [2024] LSHC 237 CRIM (29th November 2024) CORAM : T. J. MOKOKO J HEARD : 20/11/2024 DELIVERED : 29/11/2024 **__SUMMARY__** _Murder- Dying Declaration- Approach of Court- Deceased had no settled and firm expectation of death- Statements held inadmissible- Informal admissions admitted- Accused convicted of murder._ **__ANNOTATIONS__** __Cited Cases__ 1. _Matsoabane Putsoa v Rex 1974 – 1975 LLR 201_ 2. _Rex v Dlaminini 1949 (3) SA (N) 979_ 3. _Rex v. Rethabile Poto and Others CRI/T/0099/2022_ 4. _Rex v Teboho Ramokatsane 1978 (1) LLR 70_ 5. _R v Blom 1939 AD_ 6. _R v Tsosane (1995-1999 LAC 635)_ 7. _Seiketelo Mabilikoe v Rex C of A (CRI) No. 8 of 2003_ 8. _S v Cele 1965 (1) SA 82 (A)_ 9. _S v Thwala 1991 (1) SACR 494 (N)_ __Statutes__ 1. _Criminal Procedure and Evidence Act, 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ __Books__ 1. _Hoffman & Zeffert 203_ 2. _Principles of Evidence Schwikkard Van Der Merwe_ **JUDGMENT** **INTRODUCTION** [1] 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 40 (2)_. In that upon or about the 25th day of September 2018, at or near Ha Makoanyane in the district of Mohale’s Hoek, the said accused did perform an unlawful act or omission to cause the death of ‘Makatiso Mabea, such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid. [2] The accused pleaded not guilty to the charge, and the crown did not accept his plea, and the crown led the evidence of two crown witnesses. **CROWN’S CASE** **PW1- Matona Mabea** [3] Matona Mabea testified that his education only extended to standard 3, and he possesses the ability to read in Sesotho. Throughout his life, he has known the accused, who have been in the same community since infancy. He identified the deceased as the wife of his younger brother. On the day in question, he was visiting his neighbour, Pitso, when ‘Manthabiseng raised the alarm, prompting him to come over. ‘Manthabiseng told him that the child had assaulted the deceased. [4] He went to the deceased’s house in the company of Pitso. He found the deceased lying on the bed naked, with her dress pulled up to the chest area. He observed wounds on the thighs and buttocks. He asked the deceased what happened. The deceased said Ts’oelesa assaulted her with the stick. He asked the deceased if she had insulted him. The deceased revealed that the accused had confronted her, accusing her of being involved in a romantic affair with another man. In a desperate plea, she asked him to arrange transportation for her to seek medical attention. She confessed to him that the accused had violently assaulted her with a stick and had even strangled her in a fit of rage. Tragically, he later received the news that she had succumbed to her injuries. [5] In the wake of this tragedy, the villagers gathered and made their way to the accused's home, where the accused retrieved the stick that had been used in the assault and allowed himself to be taken to the deceased's house. Notably, he did not deny his involvement in the circumstances surrounding her death. The villagers called the police, who soon arrived to investigate the unfolding events. [6] During the cross-examination, the defence proposed that there were discrepancies between the witness's testimony and the statement provided to the police regarding a person named Katiso. In response, the witness clarified that the name was 'Makatiso. She explained that the police officer who recorded the statement had mistakenly written down Katiso instead of 'Makatiso. The witness elaborated that it was indeed 'Makatiso who had reported that the accused was voicing complaints about having an affair with another man. The witness was asked whether he had stated that the deceased told her she had been assaulted by the accused. However, he did not mention in his statement that the deceased was attacked with a stick. The accused clarified that the accurate version was that the deceased claimed the accused had assaulted her with the stick. The witness was confronted with a suggestion that she had not seen the assaults that took place against the deceased. Calmly, she recounted how the deceased had confided in her about the identity of her attacker shortly before her tragic death. The suggestion was posed once more, casting doubt on the deceased’s honesty regarding her accusations against the accused. In response, the witness firmly asserted the truth of the deceased's claims, emphasizing that the accused himself had admitted his violent actions against her. It was alleged that the villagers, through violence, compelled the accused to identify the stick. The witness firmly stated that the accused confessed to assaulting the deceased. **PW2- Detective Police Constable Khauta Mokutu** [7] He testified that he is a member of the Lesotho Mounted Police Service (LMPS) stationed at the Mohale’s Hoek Police Station within the Criminal Investigations Department (CID). On 25th September 2018, he received a report about a murder that took place at Ha Makoanyane. Upon arriving at the deceased’s home, he found villagers gathered around. The deceased was lying on the bed, and the accused was tied next to her. [8] He introduced himself to the accused and asked him for an explanation. The accused stated that he had discovered the deceased was having a love affair with another man, which led him to assault her and strangle her. As a result, he charged the accused with murder and made the arrest. The accused then handed him a lebetlela stick and a whip stick tied with tape. The lebetlela and whip stick were tendered as evidence and marked as Exhibit 1 collectively, while LMPS 12 was marked as Exhibit A. [9] Under cross-examination, the witness confirmed that he found the accused tied decently next to the deceased. It was suggested to the witness that the villagers had assaulted the accused. The witness said he observed that the accused had not been assaulted, and the accused did not report to him that he had been assaulted. In addition, it was suggested to the witness that due to the assaults by the villagers, the accused pointed the stick at the witness. The witness reiterated that he did not observe any injuries on the accused and that the accused freely, in a relaxed manner, explained that he assaulted the deceased. [10] The witness was asked if he knew when the assaults took place. He replied that the accused explained that they fought early in the morning. The witness was further questioned about who informed him of the timing of the fight. He stated that the accused told him the fight began on the night of 24th September and continued into the morning of 25th September. [11] It was suggested to the witness that the accused never mentioned when the fight occurred. The witness responded that the information he received indicated the fight happened at night. He also admitted that he was unsure of when the fight took place. [12] The witness was then prompted to consider that the accused did not know who assaulted the deceased. He replied that his current account differed from the explanation given to him by the accused. Additionally, it was suggested that the accused did not assault the deceased, to which the witness countered that this contradicted the explanation provided by the accused. [13] Finally, it was proposed to the witness that the accused had not made any admissions to him. The witness firmly maintained that the accused admitted to him that he assaulted the deceased with a stick and strangled her. [14] The defence admitted the following reports, statements and post-mortem reports as per _section 273(1) of the Criminal Procedure and Evidence Act, 1981. (Act)_. _Section 273(1) of the Act_ provides that _an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue and the admission shall be sufficient evidence of that fact_. [15] In the crime scene report, Detective Woman Police Constable Sam stated that she was stationed at the Mohale’s Hoek Police Station and was attached to the Criminal Investigation Department (CID). On 25th September 2018, she received a report regarding a murder that had occurred in Ha Makoanyane. She proceeded to the crime scene, where a group of villagers gathered. Upon examination, she discovered the body of the deceased lying on the bed. She noted that the deceased had strangulation marks around the neck and severe bruising on the buttocks. Detective Sam photographed both the deceased and the crime scene. The body was then transported to the mortuary, and the report was marked as Exhibit B. [16] The identifying statement of Matona Mabea. He stated that he identified the body of the deceased before the doctor performed a post-mortem examination. The statement was marked Exhibit C. The post-mortem report shows that the deceased had bruises on the left buttock, multiple bruises on the chest, circular bruises on the neck suggestive of manual strangulation, and fractured thyroid cartilage. The statement was marked Exhibit D. Crown then closed its case. **DISCHARGE APPLICATION** [17] The defence then applied for the discharge of the accused. Mr Ndebele argued that none of the crown witnesses witnessed the attack on the deceased and that nothing connected the sticks to the crime of murder. In addition, he argued that the deceased’s statement was not a dying declaration because the deceased was not in a settled state of death when she made the statements. [18] Adv. Thaba submitted that the crown had established a prima facie case against the accused, upon which a reasonable court might convict the accused. He argued that the accused admitted that he assaulted the deceased with a stick, and he handed over the sticks. **THE LAW** [19]_Section 175 (3) of the Criminal Procedure and Evidence Act, 1981 (Act)_ , provides that: _“If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty”._ [20] The issue to be determined by this court at this stage is whether the crown has established a prima facie case upon which a reasonable court might convict the accused. See **_Matsobane Putsoa v Rex**[1]**_**_._ [21] In the case of the case of **_Rex v Teboho Ramakatsane**[2]**_**__ ** _Cotran CJ_** at _73-74_ remarked as follows: “ _Furthermore, the courts, it has been said, should not at this stage embark upon a final assessment of credibility and should leave that matter in abeyance until the defence have closed their case and then weigh the two together. In Lesotho, however, our system is such that the Judge is the final arbiter on law and fact so that he is justified if he feels that the credibility of the witnesses has been irretrievably shattered in saying to himself that he is bound to acquit, no matter what the accused might say in his defence short of admitting the offence_ ”. [22] At this stage, the court is not concerned with the credibility of witnesses. The simple test is whether the Crown has established a prima facie case against the accused. In _casu_ , I conclude that the crown has established a prima facie case against the accused. The application for the discharge of the accused is refused. **DEFENCE CASE** **DW1- Ts’oelesa Molata** [23] He testified that he resides in Matsoapong, located in the Mohale's Hoek district. He had a romantic relationship with the deceased, who was married, and they lived in the same village. In addition to the deceased, he was also involved with another woman. The deceased was aware of this affair and had expressed her concerns about it. He saw the deceased the day before her death, between 12:00 am and 1:00 am, when she came to his home after having been out drinking. She complained about his relationship with another woman named Mampe. He told her he was not ready to end his relationship with Mampe, which led him to ask the deceased to leave his home. After she left, he went back to sleep. [24] He woke up around 6:00 a.m. when the men from the village came to his home; they informed him that something had happened at the house of the deceased. They instructed him to bring his sticks. After fastening his hands, they took him to the deceased's home. They pushed him forcefully but did not physically harm him. [25] Upon entering the deceased's house, he saw the deceased lying on the bed. They told him that Makatiso was dead and that he was responsible for her death. Witnesses, including PW1, Mpina, and Manthabiseng, claimed that he had strangled the deceased. He denied these allegations, asserting that he never told PW1 that he had confessed to assaulting the deceased with a stick or strangling her. [26] He sat on a chair not far from the deceased until the police arrived. He also denied telling PW2 that he had assaulted the deceased with a stick and strangled her. Additionally, he mentioned that the deceased had multiple affairs with other men. [27] During cross-examination, it was suggested to the witness that during the examination in chief, he was asked about when he last saw the deceased, and it was suggested that he struggled to provide an answer. The witness responded that he did not understand the question. It was insinuated that he was pretending not to understand because he was fabricating his story. However, the witness firmly stated that he did not comprehend the question. [28] It was also brought up during cross-examination that the defence had suggested to PW1 that he had assaulted the witness along with some men from the village. The witness clarified that PW1 and the village men did not physically assault him; they pushed him. Finally, when asked who could confirm his claim that he was asleep at home during the incident, the witness stated that his mother could provide that evidence. The defence then closed its case. **SUBMISSIONS BY THE CROWN** [29] Advocate Thaba, the Crown Counsel, argued that the deceased's statements, in which she declared that the accused attacked her with a stick and strangled her, qualify as dying declarations under _Section 226 of the Criminal Procedure and Evidence Act of 1981_. He referenced the case of **_Seiketelo Mabilikoe v Rex**[3]** _**to support his claim. He contended that the deceased had a firm and settled expectation of death when she made these statements to PW1. Additionally, he stated that the deceased was not mistaken about the identity of the accused, as they were lovers and lived in the same village. [30] Advocate Thaba further submitted that the accused made an informal admission to PW1, indicating that he assaulted the deceased with a stick and strangled her. He argued that the deceased was neither threatened nor assaulted at the time the admission was made. Adv. Thaba also noted that the accused made a similar informal admission to PW2, a police officer, stating that he had assaulted the deceased with a stick and strangled her. He emphasized that this admission was made freely by the accused, without any threats or assaults from the police. [31] Additionally, he pointed out that the accused acknowledged he was with the deceased between 12:00 am and 1:00 am, while the attack on the deceased occurred in the early hours of 25th September. Adv. Thaba argued that since the accused admitted to having an argument with the deceased on the night she met her untimely death, it can be reasonably inferred that he was the one who attacked her. Lastly, he highlighted that the accused failed to call his mother to corroborate his alibi, casting doubt on his claim that he was at home when the attack took place. **SUBMISSIONS BY DEFENCE** [32] Advocate Kelepa, the defence counsel, argued that the statements allegedly made by the deceased were incomplete and expressed by someone who did not have a clear and firm expectation of death. He pointed out that the deceased's comment suggesting that PW1 should arrange transport to take her to the hospital indicated that she had hope for recovery. Adv. Kelepa further contended that the deceased made these statements while not in a sober state of mind, which rendered her an incompetent witness. He cited the **_Mabilikoe case_**(supra) and **_Rex v. Rethabile Poto and Others_**** _**[4]**_****__** to support his argument. [33] He argued that there is no direct evidence implicating the accused and that the case relies solely on circumstantial evidence. He suggested that it would be reasonable to consider the possibility that another person may have assaulted the deceased, who mistakenly believed it was the accused because she had just left his home. He referenced the case of **_R v Blom_**** _**[5]**_****_and R v Tsosane_**** _**[6]**_****__** to support his claims. He, therefore, submitted that the accused should be acquitted. **THE LAW** [34] _Section 226 of the Criminal Procedure and Evidence Act, 1981_ provides that _the declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence in every case, in which the declaration would be admissible or inadmissible in any similar case depending in the Supreme Court of Judicature in England prior to the fourth day of October 1966._ [35] When dealing with the dying declaration, the Court of Appeal in the case of **_Mabilikoe_** _(supra)_ at _page 7, para [11]_ remarked that when the question of an alleged dying declaration is in issue, there are, in fact three separate enquiries that need to be considered – whether the alleged statements of the deceased are admissible; the weight to be given to those statements; and the credibility of the witnesses who claim to have heard what the deceased said. The second and third enquiries, in particular, cannot be regarded in isolation: they have to be considered in relation to all of the evidence before the court, including, of course, the evidence of the defence. And even the question of admissibility of the statement as a dying declaration may involve issues of credibility. [36] On _page 8 para [15],_ the Court of Appeal remarked further that in considering whether the deceased had a firm expectation that he would not survive, it is necessary to have regard to the deceased’s words in their entirety and not to compartmentalise phrases and view them in isolation. It is also important to have regard to the context in which he spoke and to the circumstances that prevailed at the time. **ANALYSIS AND DISCUSSION** [37] The primary argument of the accused is that the alleged dying declarations made by the deceased are not admissible in court because the deceased did not possess a settled and firm expectation of death at the time of giving those declarations. According to the principles established in the **_Mabilikoe case_** , the court should evaluate the weight of these statements by considering several factors. This includes assessing the credibility of the witnesses who claim to have heard the statements, as well as examining all the evidence presented, including that from the defense. Additionally, it is essential to read the deceased's words in their entirety, rather than isolating phrases and analyzing them separately. The court must also consider the context and circumstances surrounding the declaration when making its assessment. [38] The deceased made a declaration stating that the accused attacked her with a stick and subsequently strangled her. She requested PW1 to arrange transportation to take her to the hospital. The key issue for the court to determine is whether the deceased had a settled and firm expectation of death. [39] I have considered that the deceased identified her assailant to PW1 and detailed the manner of her assault. She was specific about who attacked her and provided an explanation for the motive behind the accused's actions. After sharing this information with PW1, she asked him for transportation to the hospital. [40] After reviewing all the deceased's statements, I believe she was fully aware that she had suffered a severe assault and recognized that seeking medical treatment was her only chance of survival. I believe she held onto hope that receiving medical attention would help her recover. [41] The deceased’s statements are inadmissible since they are not dying declarations because the deceased did not have a settled and firm expectation of death when she made the statements. [42] Now, come to the informal admissions the accused made to PW1 and PW2, respectively. PW1 said the accused person said that he assaulted the deceased with the stick and strangled her. The reason he gave for attacking the deceased was that the deceased was having a romantic relationship with another man. [43] When PW2 arrived at the crime scene, he discovered the deceased with his hands bound. He instructed the villagers to unfasten the accused. The accused explained that he had assaulted the deceased with a stick and strangled her. PW2 stated that the accused provided this explanation freely, without any threats or violence against him. He noted that the villagers had not harmed the accused. In his testimony, the accused claimed that the villagers had bound his hands in front of him, and while they did not physically assault him, they did push him forcefully. [44] During the cross-examination of PW1, the defence suggested to PW1 that he, together with the village men, assaulted the accused. PW1 refuted these allegations, insisting that they did not assault the accused. The accused person corroborated PW1’s evidence that they did not physically assault him. However, the accused person said they pushed him forcefully. **THE LAW: THE REQUIREMENTS FOR ADMISSIBILITY** [45] 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[7]. In this context, the words _“freely and voluntarily_ ” have a technical and restricted meaning, and admission will be found to be involuntary only if it has been induced by a promise or threat proceeding from a person in authority[8]. [46] 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[9]. 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[10]. [47] 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[11]”. [48] Applying the principles enunciated in the cases referred to above, I find that when the accused made extra-curial statements to PW2, he did so freely and without any threats or assaults on him. The defence, on the other hand, did not suggest to PW2 that he made any promises, threats, or assaults on the accused. However, the defence suggested to PW1 that, together with village men, they assaulted the accused. Be that as it may, the accused person was adamant that the village men did not assault him. He said they pushed him forcefully. The defence suggestion that PW1 and the village men assaulted the accused is not truthful; therefore, it is rejected. I accept the crown’s evidence that the accused admitted to both PW1 and PW2 that he assaulted the deceased with the stick and strangled her. [49] The court has had an opportunity to study the post-mortem report and the report of D/W/P/C Sam, especially the pictures of the deceased. The deceased had severe bruises on her buttocks, and both buttocks were purple in colour due to the assaults on the buttocks. This means that a severe force was applied on the buttocks with a blunt object. Both PW1 and PW2 said the accused told them he assaulted the deceased with a stick. The injuries on the buttocks indicate that a blunt object was used to inflict them. A stick tendered as exhibit 1 is a blunt object, which could have inflicted the nature of injuries I have described above. The post-mortem report indicates that the deceased had bruises on the left buttock, multiple bruises on the chest, and circular bruises on the neck, suggestive of manual strangulation. The evidence of PW1 and PW2 that the accused said he strangled the deceased is corroborated by the post-mortem report that the deceased had been strangled. [50] The accused stated that when the attack on the deceased occurred, he was at home asleep. He testified that the deceased had come to his house from Motse-Mocha between 12:00 am and 1:00 am to express her dissatisfaction with his relationship with another woman. He claimed that the deceased was drunk, having been drinking at Motse-Mocha. The accused said he asked the deceased to leave his house so as not to disturb his mother, who was sleeping. According to him, the deceased was upset because he was involved with another woman. Conversely, PW1 testified that the accused claimed he assaulted the deceased because she was having an affair with another man. [51] The accused claims that he had ended his relationship with the deceased. This raises the question of why the deceased would visit his house at that time after their relationship had reportedly ended. I find the accused's assertion that the deceased came to his home that night to be implausible. Additionally, the accused's claim that the deceased visited him to complain about his involvement with another woman also seems unlikely. I am more inclined to believe the testimony of PW1, who stated that the accused admitted to assaulting the deceased because he believed she was having an affair with another man. This provides a clear motive for the assault. [52] I noted with great concern that the accused repeatedly failed to answer the question regarding when he last saw the deceased alive. The question was rephrased several times, yet he still did not respond. This was not a technical or difficult question. I also observed his demeanour as the defence counsel persisted in asking the same question. It was evident that the question made the accused very uncomfortable. He seemed uneasy because he knew he was the last person to see the deceased before she sustained the injuries. Instead of providing an answer, he attempted to evade the question, and unfortunately, his lawyer continued to press him on it. The accused's defence of alibi is rejected because the testimonies of PW1 and PW2 place the accused at the crime scene as the person who attacked the deceased. [53] I conclude that the crown has established beyond reasonable doubt the accused intended the killing of the deceased. The accused is accordingly found guilty of murder. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [54]_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. [55] In the case of **_Lefaso V Rex_**[12], **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_ ”. [56] In **_Letuka v Rex_**[13], **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[14]. [57] 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_**[15] and **_S v Petrus_**[16]. [58] 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_**[17], **_Mohlalisi and Others_**[18]), 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_**[19]). [59] 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**[20]**”._ [60] I conclude that the following extenuating circumstances exist in favour of the accused to wit; (i) The accused has a rural background. (ii) The accused is illiterate. (iii) The accused has sub-normal intelligence. (iv) There is absence of _dolus directus._ [61] The trial has now entered a critical phase, where the court faces the challenge of determining an appropriate sentence for the accused. In this process, the court must consider several factors: the gravity of the offence committed, the rights and circumstances of the accused, and the broader interests of society. It is widely acknowledged that murder is a profoundly serious crime, one that carries significant moral and legal weight. Consequently, it stands to reason that the penalty for murder must be more severe than that given for culpable homicide, reflecting the serious implications of taking a life and the need for justice to be served. [62] The court has considered the prevalence of murder in the Mountain Kingdom, especially murders of women at the hands of men. I have considered that the deceased was the accused’s lover. I have further considered that the deceased was brutally assaulted on the buttocks and chest and strangled. The assaults meted on the deceased by the accused were brutal. [63] 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 a court, we are constitutionally mandated to uphold and protect human life, and it is imperative that we reaffirm our commitment to this duty. [64] This court has expressed profound concern regarding society's diminishing trust in the administration of justice and the criminal justice system. It has become imperative for this court to take decisive actions to restore 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. [65] 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 harsh 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. [66] I conclude that the appropriate sentence that will serve the interests of justice in this case is the following. **ORDER** 1. The accused is sentenced to twenty-four (24) years imprisonment. My Assessors Agree. ___________________________ **T.J. MOKOKO** **JUDGE** **FOR THE CROWN :** ADV. THABA **FOR THE ACCUSED :** ADV. KELEPA * * * [1] 1974-1975 LLR 201 [2] 1978 (1) LLR 70 [3] C of A (CRI) No. 8 of 2003 [4] CRI/T/0099/2022 LSHC 231 (25 April 2024) [5] (1939 AD at 202) [6] (1995-1999 LAC 635) [7] S v Cele 1965 (1) SA 82 (A) [8] Principles of Evidence Schwikkard Van Der Merwe Page 299. [9] S v Thwala 1991 (1) SACR 494 (N), where the court excluded an admission made after lengthy and traumatic interrogation. [10] 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… [11] 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. [12] LAC 1990- 1994 44 [13] LAC 1995- 1999 405 [14] LAC 1995-1999 at P 405 [15] 1980 (3) SA 825 (A) [16] 1969 (4) SA 85 (A) [17] 1992 (1) SACR 628 (C) [18] LAC (1980 – 1984) 110 at 117 [19] 1990 (1) SACR 426 (A) [20] LAC 1995 – 1999 at P 423 #### __Related documents ▲ To the top >