Rex V Tebello Motenalapi (CRI/T/0032/2022) [2024] LSHC 205 (31 October 2024)

# Rex V Tebello Motenalapi (CRI/T/0032/2022) [2024] LSHC 205 (31 October 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/205/eng@2024-10-31) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/205/eng@2024-10-31) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/205/eng@2024-10-31) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/205/eng@2024-10-31) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Tebello Motenalapi \(CRI/T/0032/2022\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/205/eng@2024-10-31) [ Download PDF (380.4 KB) ](/akn/ls/judgment/lshc/2024/205/eng@2024-10-31/source) Report a problem __ * Share * [ Download PDF (380.4 KB) ](/akn/ls/judgment/lshc/2024/205/eng@2024-10-31/source) * * * * * Report a problem __ ##### Rex V Tebello Motenalapi (CRI/T/0032/2022) [2024] LSHC 205 (31 October 2024) Copy citation * __Document detail * __Related documents * __Citations 6 / - Citation Rex V Tebello Motenalapi (CRI/T/0032/2022) [2024] LSHC 205 (31 October 2024) Copy Media Neutral Citation [2024] LSHC 205 Copy Hearing date 10 June 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0032/2022 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 31 October 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_** **_CRI/T/0032/2022_** **HELD AT MASERU** **** In the matter between:- **REX** **v** **TEBELLO MOTENALAPI** _Neutral citation_ :- Rex vs Tebello Motenalapi [2022] LSHC Cri 205 (29 August 2024)**** **JUDGMENT** **CORAM : M.P. Ralebese J. with Mr. L Fobo and Mr. M Mabote as assessors** **HEARING : 03 January 2024, 17 April 2024, 27 May 2024, 10 June 2024** **JUDGMENT : 29 August 2024** **EXTENUATION, MITIGATION AND AGGRAVATION : 16 October 2024** **SENTENCE : 31 October 2024** **_SUMMARY_** **_Criminal law – Charge of murder – Private Defence - Requirements for private defence - No proof of unlawful attack on the accused._** **_Criminal Procedure - Crown handing in previous convictions form against the accused - Accused admits the conviction for armed robbery - Conviction subsequent to the commission of the murder - Such subsequent conviction does not qualify as a previous conviction in terms of section 287(4) of the Criminal Procedure and Evidence Act - A subsequent conviction however qualifies as evidence the court can consider for sentencing as envisaged in section 295(2) of the Criminal Procedure and Evidence Act._** **_ANNOTATIONS_** **_CASES:_** **_LESOTHO_** Mota Phaloane v R 1981 (2) LLR 246 Mothobi v Director of Public Prosecutions (C of A no.4/2019) [[2023] LSCA 24](/akn/ls/judgment/lsca/2023/24) (15 May 2022) Teboho Mohajane and Another v R 1982-1984 LLR 434 R v Moabi (CRI/T 144 of 17) [[2019] LSHC 57](/akn/ls/judgment/lshc/2019/57) (12 December 2019 R v Mohajane and Another (CRI/T 43 of 83) [[1984] LSCA 119](/akn/ls/judgment/lsca/1984/119) (10 October 1984) R v Molikuoa (CRI/T/ 32 of 96) [[1997] LSHC 93](/akn/ls/judgment/lshc/1997/93) (17 November 1997) R v Ntsane Peleha 1985-1990 LLR 483 R v Pholo (C of A (CRI) 9 of 91) [[1994] LSCA 14](/akn/ls/judgment/lsca/1994/14) (22 January 1994) **_SOUTH AFRICA_** Namane and another v S (A 196/2014) [2016] ZAFA C 224 (15 December 2016) Nene v S (AR65/2017) [[2018] ZAKZPHC 46](/akn/za-kzn/judgment/zakzphc/2018/46) (4 May 2018) R. v. Difford 1937 A.D. 370 R v Zonele and Others 1959 (3) SA 319 S v Mthetwa 1972(3) SA 766 (A) S V Nkosi 2016 (1) SACR 301 S v P 1974(1) SA 581 Steyn v S 2010 (1) SACR 411 (SCA) **_BOOKS AND ARTICLES_** Burchell and Milton, _Principles of Criminal Law_ (2005) Juta. Burchell and Hunt, _South African Criminal Law and Procedure_. Vol. I. 1997, Juta & Co. P.J. Schikkard, Principles of Evidence, Fourth Edition Juta and Co. **_STATUTES_** Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) Penal Code [Act No.6 of 2010](/akn/ls/act/2010/6) **_Introduction_****** 1. The accused, Tebello Motenalapi who was 21 years old in 2013 stands charged with murder in contravention of section 40 (1) and (2) of the Penal Code Act of 2010. It is alleged that on or around 1st April 2013 and at or near Lekhoalaneng in Maseru, he stabbed Rethabile Leposa Lekhetho (the deceased) with a knife with the intention of causing his death and the said Rethabile died as the result of that stabbing. 2. The accused pleaded not guilty to the charge and the crown led evidence of three witnesses. The statements of some Crown witnesses and the post-mortem report were admitted as formal admissions in terms of section 273(1) of the **Criminal Procedure and Evidence Ac** t[1]. The accused person testified as the only witness in his own defence. **_The Facts_** 3. The facts of this case are that on the night of the 1st of April 2013 the deceased, also known as Lizy, was with Moleboheng Mphoso (PW1) and their other friends at the place called Snack Bar in Maseru city centre where they were indulging in alcoholic beverages until the place closed at 12.00 mid-night. PW1 and the deceased were a girlfriend and a boyfriend. After the Snack Bar had closed, the crew boarded the taxi from Motiki Khutlang (PW3) and went to Timberland Bar at Lekhaloaneng on the outskirts of Maseru city to continue their drinking spree. There were a lot of people inside Timberland when PW1, the deceased and their other acquaintances arrived. The accused person was among the people who were already inside Timberland when the deceased's crew arrived. 4. A while after the deceased and his crew had arrived at Timberland, the deceased went out of the bar telling PW1 that he was going to put on a jacket which was in PW3’s taxi that was then parked outside. PW1 asked the deceased also to bring her jacket, and she remained in the bar drinking. The deceased had gone out for some time when PW1 saw people leaving the bar. She also went out, whereupon she discovered people gathered at the nearby filling station. She proceeded there and found the deceased lying supine on the ground. The deceased was already dead and his shoes, wallet and phone were missing and his trousers were also pulled down. The Police arrived and took the deceased’s body to the mortuary. 5. The police carried out the investigations into the death of the deceased and they got information that the accused was the suspect in the murder of the deceased. The accused handed himself to Thamae police on 11th April 2013 and he voluntarily told Police Officer Ramphobole (PW2) that he was the one who stabbed the deceased. After the accused had given PW2 an explanation of what had happened between him and the deceased, PW2 told him to go and fetch the knife with which he had stabbed the deceased. The accused took the knife to the police on the following day 12th April 2013. He was given a charge of murder and he was immediately taken to court to be arraigned. 6. It is not in dispute that the accused stabbed the deceased with the knife on the night in question and that the deceased died at the scene of the crime immediately following the stabbing. The post-mortem report shows that the deceased died as a result of the stab wounds which led to 'hypovolemic [shock](https://medlineplus.gov/ency/article/000039.htm)’. This is a condition in which there was severe blood loss that made the heart unable to pump enough blood to the body resulting in many organs stopping to function. **_The Crown’s case_** 7. None of the Crown witnesses testified on how the deceased met his death. The only Crown witness who implicated the accused person is PW2 who said the accused made an informal admission that he stabbed the deceased with an okapi knife. The Crown's case is that the deceased met his death as a result of the stab wounds and that the accused had the intention to cause his death. **_The defence case_** 8. The accused admitted that he stabbed the deceased but he said he acted in self-defence. The accused’s story was that he had been inside Timberland bar on the night in question and at some point, he went outside where he met PW3 standing next to his taxi. The accused contended that he and PW3 knew each other as they went to the same high school where they used to drink and smoke together. The accused said he chatted with PW3 and he eventually asked PW3 to ferry him home in his taxi as he was too drunk. He said PW3 indicated that he too was too drunk to drive, and PW3 asked him if he could drive so that he could take both of them home in his taxi. The accused said he then told PW3 not to worry anymore as he would just walk home since it was not that far, after all. The accused indicated that PW3 then gave him the keys to the taxi. At that moment, the deceased whom the accused claimed he did not know, appeared already in a belligerent mood saying the accused could not drive the vehicle that had been fueled with his money. The accused’s evidence was that the deceased took out a knife and stabbed him in the hand. The accused contended that he fled to the nearby filling station with the deceased hot in his pursuit. He said when he realised that the deceased was too close to him, he stopped running, took out his knife, and stabbed the deceased. Upon probing by his counsel on how he stabbed the deceased, the accused said after he stopped and taken out his knife, the deceased did not retreat but kept advancing. He indicated that the deceased advanced until they grabbed each other and he stabbed the deceased while they were still holding each other. Upon further probing by his counsel on how he stabbed the deceased as they were holding each other, the accused said they were facing each other and his right hand, which was holding the knife, was under the deceased's armpit. He said he believed that the knife stabbed the deceased as they were pulling each other. **_The issue_** 9. It being common cause that the accused stabbed the deceased and that the deceased died as a result of the stab wounds, the only issues for determination are whether the accused person acted unlawfully and intentionally and whether he is guilty of murder as charged. 10. In order to determine the unlawfulness or otherwise of the accused’s act of stabbing the deceased, the court should assess whether in the circumstance of this case, the Crown has negated the self-defence as pleaded by the accused beyond any reasonable doubt. **_The law on self defence_** 11. A successfully pleaded self-defence excuses an otherwise unlawful criminal act as it presupposes that the force used by the accused person, which would ordinarily be unlawful, was justified because it was necessary to repel an unlawful attack on the accused. In this jurisdiction, private defence is governed by Section 20(1) of the **Penal Code Act****No.6 of 2010** which provides that- “ _20\. (1) No person shall be criminally responsible for the use of force in repelling an unlawful attack -_ _(a) upon himself or herself or another person if -_ _(i) it was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ _(ii) the degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances_ _…”_ Within the context of a charge of murder, this provision means that the accused who kills another person within the permissible bounds of self-defence as anticipated in sub-paragraphs (i) and (ii) above is not guilty. It follows therefore that where the accused raises self-defence, the court should assess the lawfulness or otherwise of his conduct against the two conditions in sub-paragraphs (i) and (ii) above. If the accused’s conduct is compliant with the two conditions, the conduct is lawful and the accused is not guilty[2]. 12. Prior to the enactment of the **Penal Code Act** ,**** the requirements for self-defence were succinctly summarised in **Linake and Another v R**[3]. These requirements have not been changed by the enactment of the **Penal Code Act** as they can be inferred from the reading of section 20(1) of that Act. The requirements are that; (a) the accused should have been unlawfully attacked or he should have had reasonable grounds for thinking that he was in danger of death or injury at the hands of his attacker; (b) the means that the accused used to defend himself must not be excessive in relation to the danger; and (c) the means that the accused used in defending himself should have been the only or least dangerous means to ward off the danger. 13. It is trite that where the accused raises self-defence and he gives an explanation of his conduct, he does not bear the onus of proving the truthfulness of his explanation as the onus lays with the Crown to negate and disprove the accused’s explanation and private defence beyond a reasonable doubt (**Burchell and Milton****,********_Principles of Criminal Law_**[4]). Should the Crown fail to discharge this persuasive burden to the required standard of proof, the accused will be given the benefit of doubt and will be entitled to an acquittal. 14. The court assessing a defence of self-defence should imagine itself in the position of the accused at the time of the attack, and it should avoid being an armchair critic wise after the event (**R v Patel**[5]). The test, therefore, is whether a reasonable person in the situation of the accused would have acted in the manner the accused did. The court should always be wary that a person under attack does not always have the opportunity to weigh the options available to him to ward off the imminent danger or attack[6]. This means that the test to be applied by the court is the objective one taking into consideration the particular circumstance of a case at hand (**Burchell and Hunt****,****S _outh African Criminal Law and Procedure_**[7]). **_Analysis_** 15. The accused person is the only witness who testified on how the deceased met his demise. All the other witnesses got to the scene while the deceased was already lying supine and dead. The question is whether the accused's story is reasonably probably true and whether it establishes that he acted in self-defence when he stabbed the deceased. The law governing the approach to the explanation given by the accused was articulated in **R. v. Difford**[8] which a _locus classicus_ on the subject as follows-: “ _No onus rests on the accused to convince the court of the truth_ ___of any_ ___explanation which he gives. If he gives an explanation,____even if that_ ___explanation is improbable, the court is not entitled_ ___to convict unless it_ ___is_ ___satisfied, not only that the explanation is_ ___improbable, but that_ ___beyond any_ ___reasonable doubt it is false. If_ ___there is any reasonable_ ___possibility of his explanation being_ ___true, then he is entitled to his_ ___acquitta_ _l.”_ 16. In the first place, the accused initially lied in his evidence in chief when he refuted knowledge of the deceased and claimed that he was seeing him for the first time on the day in question. The uncontroverted evidence of PW1 was that upon their arrival at Timberland he saw the accused, whom she already knew, chatting with the deceased. During the cross-examination of PW1, the Defence Counsel insinuated that the deceased made a living from pick-pocketing and robberies, suggesting thereby that the accused knew the deceased to the extent of knowing his means of livelihood. PW2's undisputed evidence was that the accused surrendered himself to Thamae Police Station and admitted to being the one who stabbed the deceased to whom he referred by his nickname ‘Lizy’. The fact that the accused knew the deceased’s nickname suggested that they knew each other. The accused tried to insist while being cross-examined that he did not know the deceased, but upon the Crown Counsel confronting him with the undisputed evidence of PW1 and PW2 as well as his insinuation while cross-examining PW1, he eventually conceded that he knew the deceased. 17. The fact that the accused initially lied and refuted knowledge of the deceased suggests that he had a deliberate intention to mask some truth which if it were to come out, would implicate him. There is no plausible reason why the accused lied to the court about not knowing the deceased yet he did not deny knowing him at the police station. The lie impairs and taints the credibility of the accused as a witness, and when viewed with other circumstances of this case, the lie may weigh negatively on the plausibility of his explanation. As stated in **R v Ntsane Peleha**[9]**** - “ _It is possible that an innocent person may put up a false story because he thinks that the truth is unlikely to be sufficiently plausible…I agree with the suggestion that if an accused lies about a particular incident which has been conclusively proven, then it must be held that he has something to hide, and this may add an element of suspicion to facts which were previously neutral…_ ” 18. While it may be reasonably probably true that the accused and PW3 attended the same high school as the accused maintained, it is improbable that they had a chat about ferrying each other home. PW3 denied that he ever chatted with the accused on the night in question. PW3 maintained that after the deceased and his companions had alighted his vehicle and they had gone inside Timberland bar, he remained in the vehicle going through his phone until he fell asleep. He said he was awoken by one of the passengers that he had ferried to Timberland informing him that the deceased had been stabbed with a knife. We had no reason to disbelieve PW3 that at no point did he ever converse with the accused and that he was only awoken after the deceased had already been stabbed. Other than that, it is not reasonably probably true that PW3 could suggest to the person whose driving skills he did not know to drive both of them home. There was not even a suggestion by the accused that he and PW3 lived in the same area such that they could drive home together. Furthermore, and for the same reason that PW3 did not know the accused’s driving capabilities, it is unlikely that PW3 could have handed the keys to the vehicle to the accused. What is more, at the time the accused suggested that PW3 handed him the keys, the accused's own evidence was that he had already informed PW3 that he should forget about taking him home as he would just walk since it was not that far after all. The question then is what would be the reason for PW3, at that moment, to give the accused the vehicle keys. As PW3 intimated while being cross-examined, a vehicle is such an important asset that he could hand over its keys to the person he was barely acquainted with, whom he knew nothing about his driving capabilities and who had already professed his drunkenness. 19. PW3 went to Timberland ferrying the deceased, PW1 and their other companions. PW3 maintained that he slept in the vehicle throughout the time that his passengers were in the bar while he waited for them. It is unlikely reasonably that PW3 could hand the vehicle keys to the accused whom he just met there as that would imply that he was abandoning the people who had chartered his vehicle and for whom he had been waiting all along. 20. The accused's story that he ever chatted with PW3 about the vehicle keys and that the latter ever handed him the keys is without an iota of doubt false. It follows as an inference therefore that the accused's story that the deceased started attacking him because PW3 had handed him the vehicle keys cannot be true. During the cross-examination of PW3, the defence counsel put to PW3 that upon the deceased realising that PW3 had handed the vehicle keys to the accused, the deceased became belligerent, he started insulting the accused and he snatched the vehicle keys from the accused. If the deceased had already snatched the vehicle keys from the accused, and the latter was allegedly leaving the deceased and PW3, what could have been the reason for the deceased to attack the accused, stab him and even chase him while wielding the knife? In the absence of any suggestion that the accused did anything that could possibly trigger his alleged attack by the deceased, it cannot reasonably be true that the deceased ever attacked the accused with a knife as alleged. 21. The suggestion by the accused that the deceased had allegedly snatched the vehicle keys from him when he stabbed and chased him would imply that the deceased chased him while still holding the vehicle keys. The keys could have been found where the deceased had collapsed. PW3's undisputed evidence was that as he got out of the vehicle having been awoken by one of his passengers, the vehicle keys which had been in the ignition when he fell asleep, dropped to the ground and he did not know how they got off the ignition. This further discredits the story of the accused regarding the vehicle keys and that PW3 ever handed them to him. 22. The accused suggested that the deceased stabbed him with the knife in the hand. If this was true, the accused could have informed PW2 about it and he could have shown him the injury as that aspect was central to his defence to the charge of the unlawful stabbing of the deceased with the intention to cause his death. PW2 maintained that the accused never informed him that the deceased stabbed him with a knife. There is no reason to disbelieve PW2 as no motive was suggested by the defence as to why he could conceal and withhold the information the accused had told him. PW2 indicated in his evidence that the accused was very cooperative, so much that he found no reason to incarcerate him in the police cells. It follows therefore that if ever the accused had informed PW2 that the deceased had stabbed him and he had even shown him the stab wound in the hand, PW2 could not have a reason to withhold such information. We also believe that if the deceased had been armed with a knife, it could have been found where his body was discovered. 23. The accused indicated that he went to the doctor regarding the alleged stab wound in his hand, but he lost the medical records to prove that. He bore the evidentiary onus to prove the attack by the deceased and at the least, he could have called someone, even a family member to corroborate his story that he had a stab wound in his hand immediately after the incident. 24. The accused's contention that he went to the police station immediately after the incident and told the police officers that someone had stabbed him with a knife and was chasing him cannot reasonably be true. It is improbable that the police could ignore a report of an attack with a knife by the person who was even bleeding from the alleged stab wound. The accused averred that the police officer that he found at the police station told him that he was drunk and that he should return to the police station the following day. He said he never went back as he was preparing to go back to work. If the accused had been attacked and stabbed with a knife, and knowing that he had also stabbed the deceased whom he left collapsed at the scene, he could have gone back to the police station to clear his name as he should have reasonably anticipated that the deceased's stabbing would also be reported. It is false beyond any reasonable doubt that the deceased stabbed the accused with a knife and that the accused reported the incident to Thamae police immediately after the incident. 25. On the conspectus of the foregoing, we find that the accused is hiding the real reason why he ended up stabbing the deceased. Having rejected the accused's story that the deceased attacked him, it remains to reason that the accused has failed to discharge the evidentiary burden of proving on the preponderance of probabilities that he was under attack by the deceased. 26. The accused's account of how he ended up stabbing the deceased was abounded with inconsistencies. He initially said after the deceased had allegedly stabbed him in the hand, he fled to the filling station with the deceased hot in his pursuit. Upon realising that the deceased was catching up with him, he stopped took out his knife and stabbed him with the intention to immobilise him so that he could continue to flee. He later on said he took out the knife but the deceased did not retreat until they grabbed each other. He said he stabbed the deceased while they were still holding one another and he thereafter fled. The other version was that while they were holding each other, his right hand, which was holding the knife, was under the deceased's armpit. He said he believed that as they were pulling one another, the knife was stabbing the deceased, thereby insinuating that he did not voluntarily stab the deceased. The accused gave these inconsistent versions as the defence counsel probed for clarification as to how he ended up stabbing the deceased, and at each opportunity, the accused told a different story. The inescapable conclusion that can be inferred from these self-contradictions is that the accused is not telling the truth. A single incident cannot be described by one person in three mutually opposed versions. The inconsistent stories taint the credibility of the accused as a witness. The inconsistencies also affect the reliability of his explanation as they relate to a material aspect of his defence, being proof that he was under attack by the deceased. 27. Looking at the individual versions of the accused as to how he stabbed the deceased, none of them establish that the accused was under attack by the deceased. The first version is that upon realising that the deceased was catching up with him, he stopped, took out his knife and stabbed the deceased. According to the accused, the deceased all along had a knife in his hand and there was no suggestion by the accused that after he had stopped, the deceased ever tried to stab him. In the first place, it is highly improbable that the deceased who was in a belligerent mood, wielding a knife and in hot pursuit of the accused would not do anything upon reasiling that the accused had stopped and was also wielding a knife. This further goes to show that it cannot be true that the deceased ever chased the accused with a knife. But even supposing that the deceased did chase the accused, there is no evidence that he ever tried to stab the accused after the latter had stopped. There would be no justification therefore for the accused to have stabbed the man who did not put up a fight three times. 28. The second version of the accused is that after he had stopped and he was also wielding a knife, the deceased kept advancing until they grabbed each other. He said he stabbed the deceased while they were still holding one another and he thereafter fled. The deceased sustained two penetrating stab wounds in the back and on the chest and he sustained another wound on the anterior (front) part of the chest. Given the position of the stab wounds that the deceased sustained, it is not clear how the deceased could have been stabbed both in the front and in the back while he and the accused were holding each other. Even then, the accused never said the deceased at any point in time tried to stab him with the knife that he was allegedly holding. 29. The last version of the accused was that while he and the deceased were holding each other, his right hand, which was holding the knife, was under the deceased’s armpit. He said he believed that as they were pulling and wrestling one another the knife was stabbing the deceased. If the knife just stabbed the deceased while the two of them were wrestling or pulling one another, firstly, the deceased could not have sustained the two penetrating wounds which undoubtedly were caused by excessive force. Secondly, a knife held with a hand in the armpit of the deceased could not have stabbed the deceased penetrating wounds both in the back and in the chest. Furthermore, by this version, the accused was suggesting that he involuntarily stabbed the deceased and this version is inconsistent with the the other two versions wherein he admitted to having consciously stabbed the deceased. 30. The burden to prove the guilt of an accused person rests on the Crown, but where there is a _prima facie_ case against the accused, the evidential burden will shift to the accused to adduce evidence to combat the _prima facie_ case made against him, with the concomitant risk of losing should he fail to discharge that evidential burden (**R v Molikuoa**[10]). The deceased met his death after being stabbed by the deceased and the accused claims that he stabbed the deceased in self-defence. At the least, the accused should prove on a balance of probabilities that he was under attack by the deceased and thereby leave the ball in the Crown’s court to disprove the alleged self-defence beyond a reasonable doubt. The court in the instant case rejects as false beyond any reasonable doubt the accused’s story that the deceased chased him with a knife and that he acted in self-defence when he stabbed the deceased. The accused therefore failed to shift the evidential burden to establish _prima facie_ that he was faced with an imminent threat or danger to his life in the hands of the deceased when he decided to stab him. 31. Even supposing that the deceased had attacked and chased the accused with a knife, the accused would have exceeded the permissible boundaries of self defence by stabbing the deceased three times. He suggested that he was already fleeing and he decided to stop and stab the deceased just to immobilise him so that he could proceed to flee. One of the penetrating stab wounds which the deceased sustained, in the circumstances where it was not suggested that he tried to retaliate even after the first stab wound, would have sufficed to immobilise the deceased. The degree of force used by the accused in the circumstances of this case to repel the attack would still have been greater than that which was reasonably necessary. 32. The Crown has proved that the accused caused the death of the deceased by stabbing him. The court rejects the accused’s explanation that he acted in private defence as false beyond any reasonable doubt. The fact that the accused stabbed the deceased three times and two of the stab wounds were penetrating, implying that excessive force was used, points to the direct intention on the part of the accused to have caused the death of the deceased. The Crown has thus proven the guilt of the accused person beyond any reasonable doubt and he is thus found guilty of murder in contravention of section 40(1) of the Penal Code Act. **Extenuating Circumstances** 33. Both the Crown and defence counsel submitted that there were circumstances that extenuated the accused person's culpability when he committed the murder. They both indicated that the accused was about 20 years old in 2013 when he committed the offence charged. They were _ad idem_ that the accused had been drinking throughout the night preceding the murder at the wee hours of the following day and he must have been intoxicated. The Crown counsel submitted further that considering that the accused had not completed secondary education, he could not have been a sophisticated person who was alive to the possible consequences of his criminal behavior. 34. In consideration of the immaturity of the accused person as informed by his age, the low level of his sophistication at the time that he committed the offence, the fact that he had been drinking intoxicating liquor immediately prior to stabbing the deceased, and the absence of evidence on the record pointing towards premeditation of the offence, the court finds that there were extenuating circumstances in the present case (**Lebeta v R**[11]). The extenuating circumstances therefore place the instant case outside the death sentence envisaged in section 297 of the **Criminal Procedure and Evidence Act**. _______________________ 13. RALEBESE J. The assessors agree **Previous Convictions** 35. Advocate Mokuku handed in a form indicating that the accused had a previous conviction. The form shows that the accused was convicted at the time not mentioned with armed robbery under the name Tebello Matete and was sentenced to 8 years imprisonment without an option of a fine. The information given by Advocate Mokuku from the bar was that the accused was convicted and sentenced in 2014 and he was released at the time not mentioned on medical grounds as he had the stroke. 36. The accused through his counsel, Advocate Makhera, admitted the said conviction but argued that it did not constitute a previous conviction for purposes of the instant case. The accused contended that he committed the armed robbery in May 2014 and he was instantaneously convicted as he had pleaded guilty. Both the commission of the armed robbery and the conviction were post or subsequent to the commission of the murder now under trial which the accused committed in April 2013. 37. It is apposite before venturing into the sentencing of the accused to analyse whether his conviction for armed robbery subsequent to the commission of the murder with which he currently stands tried constitutes a previous conviction, and whether it should be a consideration in the sentence to be imposed on the accused as anticipated in section 287(4) of the **Criminal Procedure and Evidence Act**. 38. I believe that the rationale behind previous convictions is to show that notwithstanding the previous efforts by the state to correct the accused's behaviour or to prevent or deter him from criminal behaviour, his propensity to criminality has not changed. The key element in a criminal trial is not so much a conviction but the sentence as it serves the general objective of maintenance of law and order through its retributive, deterrent, preventive and rehabilitative aspects. A previous conviction therefore becomes relevant to indicate that the previous sentence failed to achieve its objective on the accused and it informs the sentencing court of the sentence that may be appropriately effective for the offence under trial. It follows therefore that a previous conviction envisaged in section 287 (4) is the conviction that occurred before the commission of the offence under trial (**R v Zonele and Others**[12]). The implication therefore is that the conviction of the accused person of the armed robbery that he committed subsequent to the murder now under trial does not pass muster as a previous conviction as no nexus whatsoever can be established between the sentence imposed on the accused therein and the commission of the murder in the case currently under consideration. This however does not conclude the matter as the next question is whether the court should totally disregard that conviction for purposes of sentencing in the instant matter. 39. The question similar to the one raised in the previous paragraph arose in **R v Zonele**[13] (supra). Holmes AJA in that case was of the view that there is nothing wrong for the sentencing court to consider the subsequent conviction of the accused person as relevant information to inform the court of the sentence that will fit the accused and the crime. Such subsequent conviction constitutes evidence which the court may consider as envisaged in section 295(2) of the **Criminal Procedure and Evidence Act** which is the effect that:- “ _The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed._ ” The subsequent conviction of the accused for armed robbery is therefore relevant to show the character of the accused person. This is especially so because both armed robbery and murder have the element of violence. The subsequent conviction will therefore inform the court of the sentence that will fit the accused person and his apparent propensity to violent behavior. ******Mitigation and aggravation** 40. Both counsel for the Crown and the defence made written and oral submissions in mitigation and aggravation of the sentence. ******Sentence** 41. The main consideration for the sentencing court is to strike an equitable balance between the triad considerations being the gravity of the offence, the interests of society and the circumstances of the accused (**Mothobi v Director of Public Prosecutions**[14]). These triad factors should be considered in light of the general objectives of sentencing which are deterrence, rehabilitation, prevention and retribution. 42. Murder is the most serious of crimes as it cuts short the life of a loved family member, leaving the family in pain and agony. The deceased was said to be in his early twenties when the accused cut his life short for no apparent reason. His family still expected more from his life. A retributive sentence will serve some justice and give some closure to the family of the deceased knowing that the person who killed their son has paid for his act. 43. I take judicial notice that murder has been on the rise in this country over the recent years with the result that Lesotho has been ranked third on the list of countries with the highest rates of homicides[15]. This calls for a retributive and deterrent sentence that will not only deter the accused, but others who might have the inclination towards murder or homicide. The sentences should reflect the court’s and the nation's displeasure and abhorrence of the crime of murder. Members of the community should have a sense that the justice system is there to protect them against criminals, lest they take the law into their own hands. 44. The deceased's life was ended for no apparent reason by the accused and this calls for the possible highest sentence. A human life is a one-time sacred gift that should not just be taken whimsically. It is only through the imposition of deterrent sentences that human life and its sanctity can be venerated. 45. The accused was 21 years old when he committed the offence. His immaturity and drunkenness must have been some of the factors that contributed to the commission of the offence. He is now said to be a family man who is taking care of his 5 year old son while the mother is working in South Africa. The accused committed the offence more than ten years ago and it has been weighing down on him throughout the years that he has been awaiting his trial. The anxiety and anticipation of awaiting a murder trial for over ten years was without a doubt tormenting him. 46. The evidence during the trial indicated that the accused was very cooperative with the police from the moment he surrendered himself and volunteered to hand over the murder weapon to the police. He religiously attended court since the first day he was summoned for his trial. This, in a way, indicates the person who realises the harm that he did and might be remorseful. 47. While the accused does not have any previous convictions, he has a record of the conviction for the armed robbery which he committed less than a year after he committed the murder for which he now stands charged. Both offences for which he has been convicted have the element of violence and this suggests that the accused has a propensity towards violent behaviour which needs to be corrected. At his age (around 32 years) there is a good chance that with the correctional institutions and facilities as we currently have them, he can be appropriately rehabilitated so that he can re-integrate into his community to become a better citizen who will advise others about the ills of crime. This the court says well alive to the fact that over ten years have now passed and the accused has no other report of a violent crime. 48. The foregoing factors will be viewed in conjunction with the parity principle which requires that a sentence imposed should be more or less similar to sentences imposed in comparable cases. In **R v Pholo**[16] the Court of Appeal confirmed the sentence of 13 years that had been imposed by the High Court for the murder of the deceased by stabbing. In **R v Moabi**[17] the accused who had murdered the deceased therein by stabbing was sentenced to 18 years imprisonment. 49. Taking all the foregoing mitigating and aggravating factors into consideration, the court finds that a fair and equitable sentence befitting the offender, the offence and the interests of society is 15 years imprisonment and the accused is so sentenced. 50. The okapi knife that was handed in as an exhibit is forfeited to the state. _______________________ Ralebese J. Judge For Crown: Advocate Mokuku For Defence: Advocate Makhera * * * [1] Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) [2] Steyn v S 2010 (1) SACR 411 (SCA) at 416 para 18. [3] Linake and Another v R (C of A (Cri) 10/08) [[2009] LSCA 8](/akn/ls/judgment/lsca/2009/8) (09 April 2009) [4] Burchell and Milton, _Principles of Criminal Law_ (2005) Juta at 231. See also R v Mosuoe (CRI/T 35 of 89) [[1991] LSCA 43](/akn/ls/judgment/lsca/1991/43) (22 April 1991) [5]R v Patel 1959 (3) SA 121 at 123 [6] Nene v S (AR65/2017) [[2018] ZAKZPHC 46](/akn/za-kzn/judgment/zakzphc/2018/46) (4 May 2018) [7] Burchell and Hunt, _South African Criminal Law and Procedure_. Vol. I. 1997, Juta & Co. at page 79 [8] R. v. Difford 1937 A.D. 370 at 373 [9]R v Ntsane Peleha 1985-1990 LLR 483 at 487 [10]R v Molikuoa (CRI/T/ 32 of 96) [[1997] LSHC 93](/akn/ls/judgment/lshc/1997/93) (17 November 1997 [11] Lebeta v R LAC (2007 -2008) 220 [12] R v Zonele and Others 1959 (3) SA 319 at 330 C-D [13] R v Zonele (supra) [14] Mothobi v Director of Public Prosecutions (C of A no.4/2019) [[2023] LSCA 24](/akn/ls/judgment/lsca/2023/24) (15 May 2022) [15] <a href='https://www.macrotrends.net/countries/LSO/lesotho/murder-homicide-rate'>Lesotho Murder/Homicide Rate 1990-2023</a>. www.macrotrends.net. Retrieved 2023-09-22 - World Bank [16] R v Pholo (C of A (CRI) 9 of 91) [[1994] LSCA 14](/akn/ls/judgment/lsca/1994/14) (22 January 1994) [17] R v Moabi (CRI/T 144 of 17) [[2019] LSHC 57](/akn/ls/judgment/lshc/2019/57) (12 December 2019 #### __Related documents ▲ To the top >