Rex V Nyola Posholi (CRI/T/0097/2022) [2024] LSHC 220 (13 November 2024)

# Rex V Nyola Posholi (CRI/T/0097/2022) [2024] LSHC 220 (13 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/220/eng@2024-11-13) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/220/eng@2024-11-13) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/220/eng@2024-11-13) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/220/eng@2024-11-13) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Nyola Posholi \(CRI/T/0097/2022\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/220/eng@2024-11-13) [ Download PDF (356.6 KB) ](/akn/ls/judgment/lshc/2024/220/eng@2024-11-13/source) Report a problem __ * Share * [ Download PDF (356.6 KB) ](/akn/ls/judgment/lshc/2024/220/eng@2024-11-13/source) * * * * * Report a problem __ ##### Rex V Nyola Posholi (CRI/T/0097/2022) [2024] LSHC 220 (13 November 2024) Copy citation * __Document detail * __Related documents Citation Rex V Nyola Posholi (CRI/T/0097/2022) [2024] LSHC 220 (13 November 2024) Copy Media Neutral Citation [2024] LSHC 220 Copy Hearing date 12 November 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0097/2022 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 13 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 ###### Flynote **ORDER** The accused is sentenced to eighteen (18) years imprisonment Read full summary * * * Skip to document content ###### Flynote **ORDER** The accused is sentenced to eighteen (18) years imprisonment **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** **CRI/T/0097/2022** In the matter between **** **REX CROWN** And **NYOLA POSHOLI ACCUSED** _Neutral Citation_ : Rex vs Nyola Posholi LSHC 220 CRIM (13th November 2024) CORAM : T. J. MOKOKO J DATE OF HEARING : 12/11/2024 DATE OF DELIVERY : 13/11/2024 **_SUMMARY_** _Murder- Accused pleaded self-defence- Deceased did not pose any danger to the accused- Accused the aggressor- defence of self-defence not justified- Accused found guilty of murder._ **__ANNOTATIONS__** __Cited Cases__ 1. _Bobe v The State [__2006] 1 BLR 254 (CA)_ 2. _Lefaso V Rex_ LAC 1990- 1994 44 3. _Letuka v Rex_ LAC 1995- 1999 405 4. _Linake v Rex_ _LAC (2009 – 2010)_ 5. _Mohlalisi and Others_ LAC (1980 – 1984) 110 6. _Rex v Ranthithi and Another_ LAC 2007- 2008 245 7. _R v Attwood_ _1946 AD_ 8. _R v Rajivee Soni_ CC 29/14P 9. _S v Kruger_ 2012 (1) SACR 369 (SCA) 10. _S v Mafela_ 1980 (3) SA 825 (A) 11. _S v Ngobeni_ 1992 (1) SACR 6 12. _S v Ntuli_ _1975 (1) SA 429 (A)_ 13. _S v Petrus_ 1969 (4) SA 85 (A) 14. _S v Prins_ 1990 (1) SACR 426 (A) 15. _S v Scott-Crossley_ _2008 (1) SACR 223 (SCA)_ __Statutes__ 1. _Criminal Procedure and Evidence Act_ 2. _Penal Code Act_ **JUDGMENT** **INTRODUCTION** [1] The accused is charged with contravention of _section 40 (1) of the Penal Code read with section 40 (2) thereof_ , in that upon or about the 1st day of November 2019, and at or near Ketane Khekhethane in the district of Mohale’s Hoek, the accused did perform an unlawful act or omission with the intention of causing the death of Berente Ramonyatsi. [2] The accused pleaded not guilty to the charge of murder, and the crown did not accept the plea, therefore leading to the evidence of three witnesses. **CROWN’S CASE** **PW1- Moeti Rangoajane** [3] He stated that he had completed up to standard 7. He knew the deceased, who worked as a shepherd at his home, but he did not know the accused, although he recognized him from previous encounters. On the 1st of November 2019, he attended an initiation celebration. Around 3:00 am, he left the celebration accompanied by Retselisitsoe Khesa, the deceased, an unknown individual, and PW2. He walked behind with Retselisitsoe Khesa while the deceased, PW2 and the unknown man walked ahead of them, keeping about nine paces. He heard the deceased express frustration that the accused should not call him a “man,” which led to conflict between them. PW2 stood between them to intervene in the conflict. He discovered that the deceased was covered with blood after the accused stabbed him with a knife on the shoulder. He stated that he did not witness the accused stabbing the deceased with a knife. The accused ran off, and he chased him. The accused was holding a stick in his left hand and a knife in his right hand. The accused said he was going to stab the witness, too. He hit the accused with the stick, and he fell. He went back to get help and came across villagers from Ha Phole. He proceeded to the scene and learned that the deceased had passed on. He went back to where the accused was, and he found the villagers assaulting the accused. He stopped them from assaulting the accused. The following day, the accused was arrested, and the police took the deceased away. [4] Under cross-examination, the witness said he did not drink Sesotho beer that night. The witness confirmed that he did not know the accused’s name. He reiterated that he did not witness the accused stabbing the deceased with a knife. It was put to the witness that the accused acted in self-defence, to which he replied that the accused did not sustain any injury. Therefore, he did not do anything about that. **PW2- Tsietsi Mosebetsi** [5] He mentioned that he completed up to standard 4 in school. He knew the deceased because they worked together as shepherds in Mangaung. He also recognized the accused since he was employed as a shepherd at Hopolang's home. On Friday, the 1st of November 2019, he left for an initiation ceremony with the accused and the deceased. At the ceremony, they were drinking Sesotho beer. Around 2:30 am, they left the ceremony to go home. The accused and the deceased had two-litre bottles of Sesotho beer each. He went along with the accused as the deceased remained behind to get the two bottles containing beer from the kraal. The deceased shouted to them, enquiring about their whereabouts. The deceased joined them and wanted to put the two bottles in the accused’s bag. The accused took off the bag and handed it over to the deceased. However, the deceased struggled to open the bag, and the accused said: “Hey man, can’t you see how the bag is opened?”. The deceased took offense that the accused referred to him as “man”. The witness intervened in the conflict and tried to push the accused away. The deceased hit the accused with the stick on the head. The accused jumped forward, and he heard PW1 saying the accused was taking out a knife. They overpowered him, and the accused stabbed the deceased with the knife. The accused then said: “What did the deceased think he would do?”. The accused had an injury on the forehead inflicted by the community members. He took the deceased on horseback to Ha Rantoetsi. [6] Under cross-examination, the witness stated that he had been drinking Sesotho beer that night. Under cross-examination, the witness was adamant that the deceased hit the accused with a stick at the back of the head, as the deceased was behind the accused. It was suggested to the witness that the accused acted in self-defence, to which the witness replied that he was not sure about the accused’s plan. On the second occasion, when the same question was posed to him, the witness stated that the deceased did not act in self-defence, questioning why the accused used a knife. Lastly it was suggested to the witness that the accused used a knife because his stick fell, and the witness replied that he did not see that. [7] The court asked the witness to clarify what the accused did after the deceased hit him with the stick. The witness said the accused jumped forward and took out a knife. The witness was preventing the deceased from moving. The accused went back to where the deceased and the witness were, and he was trying to prevent the deceased from moving forward. The accused came and stabbed the deceased. He explained that the accused stabbed the deceased on his return to the scene, while the witness was trying to intervene in the altercation. **PW3- Retselisitsoe Khesa** [8] He testified that he completed his education up to standard 5 and works as a shepherd. He knew the deceased as a fellow villager. On 1st November 2019, he left his home to attend an initiation ceremony with Sutha. After the celebration, he returned home in the company of the accused, PW2, PW1, and the deceased. He was walking in front of the group when he heard a disagreement between the accused and the deceased, which stemmed from the deceased referring to the accused as a man. The accused took out a knife and stabbed the deceased in the shoulder. He said it was dawn, and visibility was limited. He saw the accused taking out the knife and stabbing the deceased, and he ran away. He said PW2 was between the deceased and the accused, trying to stop the altercation when the accused stabbed the deceased. After stabbing the deceased, the accused ran away. People from Ha Lephoto assaulted the accused, and he stopped them from assaulting the accused. [9] It was suggested to the witness that PW2 said it was the deceased who took offense that the accused referred to him as a man. He was adamant that it was the accused who took offense. The witness stated that he did not witness the deceased hitting the accused with the stick; rather, he saw the accused stabbing the deceased with a knife. He confirmed that the accused ran away after stabbing the deceased. **ADMISSIONS** [10] The defense admitted the following statements of Mabusetsa Ramonyatsi, ‘Marealeboha Rannana, PC Lesaoana, PC Molai, LMPS 12, and the post-mortem report as per _Section 273 (1) of the Criminal Procedure and Evidence Act (Act)_. 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._ [11] In his identifying statement, Mabusetsa Ramonyatsi stated that on the 6th of November 2019, he identified the body of the deceased before the doctor performed a post-mortem examination. The deceased was his brother. The statement was marked Exhibit A. [12] ‘Marealeboha Rannana stated that on the 6th of November 2019, she identified the body of the deceased before the doctor performed a post-mortem examination. The statement was marked Exhibit B. [13] In his report, Police Constable Lesaoana stated that he went to Ha Rantoetsi following the report. He found the deceased, who had an open wound on the left shoulder and the left hand. They took the deceased to the mortuary. The report was marked Exhibit C. [14] In his report, Police Constable Moloi stated that on the 2nd of November 2019, he went to Khekhethane following the report of murder and located the person accused of a crime, who had been apprehended by community members. He introduced himself, cautioned the individual, and asked for an explanation. He informed the accused of the murder charge against him. Afterward, he arrested the accused and took him into custody. A community member named Moselenyane Mosola handed him a black and gold knife with a tube on the handle alleged to be the murder weapon. He filled out LMPS 12 and kept the knife under police custody. The report was marked Exhibit D. [15] The post-mortem report indicated that death was due to haemorrhage due to stab wounds. External appearance shows the stab wound on the anterior side of the right wrist, a stab wound of 5cm wide below the left deltoid, on the anterior side with direction to posteriorly towards the left scapula. The report was marked Exhibit E. Crown then closed its case. **DEFENCE CASE** **DW1- Nyola Posholi** [16] He testified that he was a shepherd. One Friday, he left Khekhethane village to attend an initiation ceremony with two men whose names he did not know. After the celebrations, he headed home with PW2 and the deceased. The deceased had brought two-litre bottles of Sesotho beer. He wanted to put the bottles in his bag, but he was not pleased that the deceased tried to keep them in his bag instead. He said to the deceased, “Hey man, I don’t want you to put these bottles in my bag”. The deceased took offense when he referred to him as “man”. The deceased advanced to him, but PW2 stood between them to stop the altercation. The deceased hit him with the stick on the forehead. He stumbled, and his stick fell. He told the deceased that he would stab him, and he repeated this warning about four times after the deceased had hit him. The deceased was in a fighting mood. PW2 did not manage to stop the fight. The deceased said he was a liar, and he was a woman. The deceased approached him. He then stabbed the deceased with a knife in self-defence. He ran away because the deceased was still in a fighting mood. [17] Under cross-examination, it was suggested to the witness that PW2 said the witness handed his bag over to the deceased to put the bottles of beer in it, and that the witness did not deny this version. The witness said he tried to stop the deceased from using his bag. It was suggested to the witness that PW2 said the deceased hit the witness with the stick at the back of the head and that the witness did not rebut this evidence. The witness stated that the court should accept his version of events. It was pointed out to him that none of the crown witnesses claimed the accused had warned the deceased four times. As a result, the witness was prompted to consider this detail an afterthought, and he agreed that it was an afterthought. When the accused was asked how he regained possession of the stick, the witness insisted that he never had a chance to retrieve it. It was also suggested that PW1 stated he ran away while holding the stick and the knife, and the witness did not contest this evidence. He acknowledged that he had not challenged that assertion. [18] It was suggested to the witness that PW2 intervened to stop the fight, but the accused escalated the situation. The accused replied that he was only trying to retrieve his bag. It was suggested to him that despite PW2’s intervention, he went ahead to stab the deceased. He replied that it was because the deceased had already assaulted him. It suggested to him that there was no imminent danger since PW2 was between them. He replied that the deceased had already hit him with the stick. The witness agreed that he did not dispute PW1’s evidence that he said he would stab PW1, too. **SUBMISSIONS BY THE CROWN** [19] Adv. Rathebe submitted that when the accused stabbed the accused with the knife, there was no imminent danger posed to him by the deceased because PW2 was between them. She submitted that the accused had an opportunity to retreat, but he went back to the deceased and PW2 and fatally wounded the deceased. She argued that the fact that the accused ran away after stabbing the deceased indicated that he knew what he was doing. She further submitted the use of a knife, a lethal weapon, was not proportionate to the weapon carried by the deceased. The deceased sustained multiple wounds, which indicates the intention to kill the deceased. She argued that the accused’s version that he resorted to using the knife instead of the stick because his stick had fallen is false because PW1 saw the accused running away holding both the stick and the knife. She added that PW2 said the deceased hit the accused with a stick at the back of the head, and the accused jumped forward. That was an opportunity for the accused to have retreated, but he took out a knife and went back to the deceased and PW2 and landed a fatal stab on the deceased. She submitted that this was a clear intention to kill the deceased. **SUBMISSION BY THE DEFENCE** [20] Adv. Lechesa submitted that the accused was unlawfully attacked by the deceased; therefore, he was entitled to self-defence to avert the attack. She submitted that the attack on the accused was imminent; thus, the accused was entitled to defend himself. However, she conceded that the deceased hit the accused with a stick at the back of the head, and the accused jumped forward. She conceded further that the accused returned to the deceased and PW2 while PW2 tried to stop the altercation. Adv. Lechesa submitted that reference to the deceased as “man “was not offensive. Therefore, the deceased should not have taken offense to the fact that the accused referred to him as a “man”. The defence submitted that the accused should be acquitted. **THE LAW** [21] _Section 20. (1) of the Penal Code Act, 2010_ provides that: _“No person shall be criminally responsible for the use of force in repelling an unlawful attack-_ 1. _Upon himself or herself or another person if-_ 1. _It was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ 2. _The degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances._ 2. _Upon his or her property or the property of another provided that the means he or she chooses and the degree of force he or she uses in so doing are reasonable in the circumstances._ [22] For the defence of self-defence to be successful, three conditions must be met. First, there must be an unlawful attack on the accused. Second, in the circumstances at the time, it was not reasonable for the accused to retreat. Lastly, the degree of force used by the accused must have been reasonably necessary to prevent the attack. These are the requirements outlined in _section 20 (1) of the Penal Code Act_. [23] Be that as it may, the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex**[1]**,_ **where **Ramodibedi P** had this to say: At this stage I should like to repeat what I said in the Court of Appeal of Botswana in the case of **_Bobe v The State_******[2]******,** (**Grosskopf JA** and **Lord Coulsfield JA** concurring) remarked: _“Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility, then the accused is entitled to an acquittal.**See S v Ntuli**[3]****. _ _As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker._ 2. _The means he used in defending himself were not excessive in relation to the danger._ 3. _And the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.**See R V Attwood**[4]**. **_ **ANALYSIS AND DISCUSSION** [24] It is widely acknowledged that a conflict arose between the accused and the deceased. The deceased was significantly older, being 54 years old, while the accused was only 27 years old. Both PW1, PW2, and the accused confirm that the deceased felt offended when the accused, who was much younger, referred to him as "_man_ ", a term he considered disrespectful. This court has taken judicial notice that in our Basotho culture, referring to an older male person as a “man” is disrespectful. Hence the deceased was offended by that fact. Be that as it may, that did not give the deceased the right to hit the accused with the stick at the back of the head. The court is aware that both the deceased and the accused, along with the crown witnesses, attended an initiation celebration where they consumed Sesotho beer. It is undisputed that the deceased took a provision of Sesotho beer in two bottles – one for himself and one for the accused. This suggests that the relationship between the deceased and the accused was friendly. [25] PW2 stated that the deceased called out to him and the accused, asking them to wait. When the deceased approached, he requested the bag from the accused to store the two bottles. The accused removed the bag and handed it to the deceased, but the deceased struggled to open it. At that point, the accused commented, “ _Hey man, don’t you know how to open the bag_ ”? This remark triggered a conflict between the accused and the deceased. It was during the exchange of words that the deceased hit the accused with the stick on the back of the head, as the deceased was behind the accused. [26] Both the defence and the crown agreed that after the accused was hit, he jumped forward. This means that the accused moved further away from the deceased, as the accused was in front of the deceased. The accused stated that he issued four oral warnings to the deceased that he would stab him. It was after these warnings that the accused went to the deceased and PW2 and stabbed him with the knife. It is important to note that throughout the entire incident, PW2 stood between the deceased and the accused. PW2 stated that he wanted to ensure the deceased did not approach the accused. However, it was the accused who moved toward both the deceased and PW2 and stabbed the deceased. The accused person stabbed the deceased while PW2 was positioned between them. [27] The salient question at this stage is whether there was an unlawful attack on the accused and had reasonable apprehension that his life was in danger. Lastly, if he was unlawfully attacked, whether the means he used to avert the attack were proportionate to the attack. According to the version of the accused, he moved forward after the deceased hit him with the stick. He resorted to using the knife because his stick had fallen. He said he warned the deceased four times that he would stab him. When it was suggested to the accused that when he stabbed the deceased, the deceased posed no danger to him. The accused kept saying it was the deceased who hit him first. However, no evidence was placed before the court that when the accused stabbed the deceased, the deceased posed a danger to him. The deceased could not pose any danger to him because PW2 was positioned between the deceased and the accused. It was the accused who approached the deceased and PW2 and stabbed him with the knife. The fact that the accused kept saying he stabbed the deceased because the deceased was the one who hit him first clearly shows that the accused was out on a mission to retaliate for an earlier attack by the deceased on him. [28] The material question that this court must determine is whether, at the material time, the deceased posed a danger to the accused, entitling him to defend himself. The accused person said he gave about four oral warnings to the deceased that he would stab him. It was after these warnings that he stabbed the deceased. The accused had ample opportunity to retreat. I say this because PW2 positioned himself in front of the deceased, preventing the deceased from approaching the accused. It was the accused who chose to move toward both the deceased and PW2, to stab the deceased with the knife. The defence did not present its version to the crown witnesses that the accused had given the deceased four oral warnings that he would stab him. This indicates that this was an afterthought. [29] The accused claimed he used the knife after his stick fell during the attack by the deceased. PW1 testified that the accused fled after stabbing the deceased, and he was holding both a stick and a knife. The defence did not challenge this evidence. The accused’s evidence that he dropped his stick is an afterthought. The accused person added further that the deceased hit him with the stick on the forehead. PW2 said the deceased hit the accused with the stick at the back of the head, and that caused the accused to stumble forward, away from the deceased. During cross-examination, the defence did not rebut the evidence that the deceased hit the accused in the back of the head. While giving evidence, the accused said the deceased hit him on the forehead. The accused tried to explain how the deceased hit him on the head, and his explanations were riddled with contradictions. [30] PW1 said that when he chased the accused after he had stabbed the deceased, the accused told him he would stab him too. The defence did not challenge this piece of evidence. This evidence shows that the accused intended the killing of the deceased. An additional point to consider is that after attacking the deceased, the accused fled the scene. This indicates that the accused had completed his objective and could leave without apprehension. During the cross-examination of the crown witnesses, it was not suggested that the accused ran from the scene due to an attack by them. PW1 stated he chased the accused after PW3 instructed him to catch the accused. [31] PW2 testified that the deceased had brought two bottles of Sesotho beer and requested a bag from the accused to store them. The accused gave the bag to the deceased, who had difficulty opening it. However, in his testimony, the accused said he expressed his displeasure about the deceased wanting to place the two bottles in his bag, which ignited the conflict between them. But during cross-examination, the defence did not contest PW1’s evidence. PW1 stated that one bottle was for the accused and the other for the deceased. It's not surprising that PW2 mentioned the accused handed the bag to the deceased so they could put the two bottles inside. I find the accused’s version that the deceased wanted to use the bag without his permission false. I say this because the accused never told PW2 that the deceased intended to use his bag to hold the bottles without his permission. This indicates that this was an afterthought. [32] The post-mortem report indicates that the deceased had multiple stab wounds. It is important to reiterate that PW2 was positioned between the accused and the deceased when the accused stabbed the deceased. These multiple stab wounds show that the accused had the necessary intention to kill the deceased, who was not posing any danger to him. [33] After considering all the evidence, I conclude that the accused attacked the deceased, who was not posing any imminent threat to him; therefore, the defence of self-defence is rejected. **ORDER** 1. The accused is found guilty of murder. **SENTENCING** **EXTENUATING CIRCUMSTANCES** [34]_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. [35] In the case of **_Lefaso v Rex_**[5], **Schutz P.** explained extenuating circumstances as follows: “ _Extenuating circumstances are such as reduce the moral, if not the legal guilt of the accused. The onus of proving them on a balance of probability rests on the accused_ ”. [36] In **_Letuka v Rex_**[6], **Steyn P** stated that extenuating circumstances are any facts associated with the commission of the crime, whose effect in the minds of reasonable persons is to reduce the moral blameworthiness of the accused, as distinct from the accused’s legal culpability[7]. [36] 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_**[8] and **_S v Petrus_**[9]. [37] The Court of Appeal in the **_Letuka case_** (_supra_) remarked further that, each factor may individually have little weight taken cumulatively however, they may well tip the scale in an accused’s favour when evaluated against the aggravating features. Factors which can be considered include the following; youth, liquor, emotional conflict, the nature of the motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part on the commission of the murder, absence of _dolus directus_ (**_S v Ngobeni_**[10], **_Mohlalisi and Others_**[11]), belief in witchcraft, absence of premeditation or planning, heavy confrontation between an accused and the deceased before murder, rage of an accused (See **_S v Prins_**[12]). [38] In the **_Letuka case_** (_supra_) **Steyn P**. stated that: “ _It is trite that mere presence of one of these features do not axiomatically mean that they are extenuating in relation to the commission of the crime in casu. Each factor must be weighed and assessed in the light of the evidence as a whole and its relevance to the conduct and the state of mind of the accused, as well as cumulatively with any other factor associated with the commission of the offence**[13]**”. _ [39] I have concluded that the following extenuating circumstances exist in favour of the accused person, to wit: 1. The accused has a rural background and practiced Basotho traditions and customs. 2. The accused was uneducated and worked as a shepherd. 3. The accused had been drinking Sesotho beer on the fateful night. 4. The commission of this offence was not premeditated. 5. There was a heavy confrontation between the accused and the deceased before the murder. 6. The accused was provoked when the deceased hit him with the stick. 7. The accused acted impulsively. 8. There was absence of dolus directus. **MITIGATION AND AGGRAVATION OF SENTENCE** [40] In mitigation of the sentence, Adv. Lechesa argued that the accused is a first-time offender who is self-employed as a shepherd. He attended all his remand hearings and trial on the required dates, demonstrating his remorse. After the commission of the offense, the accused was brutally assaulted by members of the community. Additionally, the accused is a married man with a two-year-old child. It is important to note that the deceased attacked the accused first. [41] In aggravation of the sentence, Adv. Rathebe stated that the deceased was a widower at the time of his death and left behind three children who are now orphans. The deceased was the sole breadwinner for his family. Furthermore, the accused did not participate in the burial of the deceased, indicating a lack of remorse for his actions. Adv. Rathebe urged the court to impose a sentence to deter others from committing similar offenses. She emphasized that courts should impose severe penalties to restore the community's faith in the legal system. **COURT CONSIDERATIONS** [42] The court has now come to the most difficult stage of the trial, passing the appropriate and just sentence that will serve the interests of justice. In passing a sentence, this court should consider three main factors, which are the nature of the offense, the interests of the accused, and the interests of society at large. Murder is a capital offense that carries with its maximum punishment in this country, which no longer seems to be a deterrent. In cases such as this one, where the court finds that the death sentence is inappropriate, imprisonment is the only appropriate sentence. In the case of **_Rex v Ranthithi and Another_**[14], **Ramodibedi JA** , as he then was, stated that in determining a proper sentence, it is necessary to have regard to the trial consisting of the offence, the offender and the interests of society. As regards the consideration relating to the crime committed, there can be no doubt that murder is a very serious offence. This court believes in the sanctity of human life. It is in the interests of society that people convicted of murder be put away for a long time. This is so in order to protect society itself against such people. There must also be a distinction drawn between a sentence for murder and a sentence for culpable homicide. The court is enjoined to strike a proper balance between all these factors. [43] In **_R v Rajivee Soni_**[15], It was remarked that a court must not over-emphasise one factor and ultimately a balance must be struck. In** _S v Kruger**[16]** _**the court remarked [p]unishing a convicted person should not be like taking revenge. In my view, every sentence that must be imposed must be tempered with a degree of mercy no matter the crime. A sentencing court must not over-emphasise the public interest and general deterrence. The Supreme Court of Appeal in **_S v Scott-Crossley_**** _**[17]**_****__** said the following: “ _Plainly any sentence imposed must be deterrent and retributive force. But of course, one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter even the overriding ones. The judgment further states at para 35:_ [44] In delivering the appropriate sentence in this case, I have taken into careful consideration that the accused stands before the court as a first time offender. This status indicates that he is not someone typically inclined to commit offenses against the law. I view him as a fallen angel, deserving of an opportunity for redemption in life. [45] The accused is a family man, married and the father of a two-year-old child, which further underscores the gravity of the situation. Following the commission of this offense, he became the target of violence from members of his community, an experience that I believe serves as a punishment. Throughout the legal proceedings, he has diligently attended all his court remands and trial dates, which reflects his genuine remorse for his actions and his acknowledgment of the law and its processes. [46] Additionally, I have considered the circumstances that led to this tragic incident. It is important to note that the deceased initiated the confrontation by striking the accused with a stick first, an act that set off the sequence of events leading to the offense. This incident occurred in 2019, and it has since loomed over the accused, creating an unbearable psychological burden for the past five years. The prolonged uncertainty has taken its toll on him, affecting his mental well-being—a punishment that he has already endured. [47] Moreover, on that ill-fated night, both the accused and the deceased had been drinking traditional beer, which may have influenced their actions and interactions. [48] In light of the circumstances presented, I have reflected further on the fact that the deceased was a devoted single father, having lost his wife before his own untimely death. The deceased was the sole provider for his three young children, who now face the harsh reality of being double orphans. The vacuum left by their father's passing has created an emotional and financial void within their family, leaving them vulnerable. [49] Additionally, it is noteworthy that the accused did not participate in the burial arrangements for the deceased, a clear indication that he lacked remorse for his actions. This court fundamentally believes in the sanctity of human life, asserting that anyone who unlawfully takes another's life must face strict and serious consequences. Such penalties serve not just to punish the offender, but to send a resolute message to society that murder is a grave offense deserving of severe retribution. [50] It has come to the attention of this court that there is a pervasive sense of disillusionment among the public regarding the efficacy of our legal system and its capacity to deliver justice. To regain and restore the public's trust in the judiciary and the broader criminal justice framework, stringent sentences must be imposed in murder cases. [51] In recent years, Lesotho has witnessed a troubling rise in reckless and senseless killings, which poses a significant threat to the fabric of our society. It is incumbent upon the courts, through the imposition of formidable sentences, to counteract this disturbing trend and reaffirm our commitment to justice and accountability. [52] Having considered all these factors, I conclude that the most fitting sentence to serve the interests of justice in this matter is as follows: **ORDER** 1. The accused is sentenced to eighteen (18) years imprisonment. My Assessors Agree**.** ___________________ T.J. MOKOKO JUDGE **FOR THE CROWN :** ADV. S.B. RATHEBE **FOR THE ACCUSED :** ADV. N. LECHESA * * * [1] LAC (2009 – 2010) at Page 7 [2] [2006] 1 BLR 254 (CA) at 257 [3] 1975 (1) SA 429 (A) [4] 1946 AD 331. [5] LAC 1990- 1994 44 [6] LAC 1995- 1999 405 [7] LAC 1995-1999 at P 405 [8] 1980 (3) SA 825 (A) [9] 1969 (4) SA 85 (A) [10] 1992 (1) SACR 628 (C) [11] LAC (1980 – 1984) 110 at 117 [12] 1990 (1) SACR 426 (A) [13] LAC 1995 – 1999 at P 423 [14] LAC 2007- 2008 245 [15] CC 29/14P at Page 34 [16] 2012 (1) SACR 369 (SCA) para 11 [17] 2008 (1) SACR 223 (SCA) #### __Related documents ▲ To the top >