Rex V Makoaela Thaabe Letsie & 3 Others (CRI/T/0100/2023) [2024] LSHC 176 (13 September 2024)

# Rex V Makoaela Thaabe Letsie & 3 Others (CRI/T/0100/2023) [2024] LSHC 176 (13 September 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/176/eng@2024-09-13) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/176/eng@2024-09-13) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/176/eng@2024-09-13) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/176/eng@2024-09-13) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Makoaela Thaabe Letsie & 3 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/176/eng@2024-09-13) [ Download PDF (448.0 KB) ](/akn/ls/judgment/lshc/2024/176/eng@2024-09-13/source) Report a problem __ * Share * [ Download PDF (448.0 KB) ](/akn/ls/judgment/lshc/2024/176/eng@2024-09-13/source) * * * * * Report a problem __ ##### Rex V Makoaela Thaabe Letsie & 3 Others (CRI/T/0100/2023) [2024] LSHC 176 (13 September 2024) Copy citation * __Document detail * __Related documents Citation Rex V Makoaela Thaabe Letsie & 3 Others (CRI/T/0100/2023) [2024] LSHC 176 (13 September 2024) Copy Media Neutral Citation [2024] LSHC 176 Copy Hearing date 10 September 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0100/2023 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 13 September 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/0100/2023** In the matter between **REX CROWN** AND **MAKOAELA THAABE LETSIE ACCUSED 1** **LEKHOOA TOLO ACCUSED 2** **PULE RAMOKHOSI ACCUSED 3** **THABANG MAKHETLA ACCUSED 4** _Neutral Citation_ : Rex vs Makoaela Thaabe Letsie & 3 Others [2024] LSHC 176 CRIM (13th September 2024) CORAM : T.J. MOKOKO J DATE HEARD : 10/09/2024 DATE DELIVERED : 13/09/2024 **__SUMMARY__** _Murder- Crown’s case based on a common purpose- crown proved beyond reasonable doubt that the accused acted in common purpose- requisites for common purpose satisfied- Accomplice witness- court exercised caution in dealing with accomplice witness- accomplice witness discharged at the end of the trial- having answered all questions satisfactorily- accused convicted of murder._ **__ANNOTATIONS__** __Cited Cases__ 1. _Bereng Griffith Lerotholi and Others v The King 1926-53 HCTLR 149 (PC); 1959 AC 11 (PC)_ 2. _Manamolela and Others v Rex LAC (1980-84) 202_ 3. _Magmoed v Janse Van Rensburg and Others 1993 (1) SA 777 (A) SACR 67 (G)_ 4. S v Madlala 1969 (2) 637 (A) at 640 F- 641 5. _Phasumane and Others v Rex LAC (1985-89) 168_ 6. _Ramaema v Rex LAC 2000-2004 710_ 7. _Rex v Ncanana 1948 (4) SA (A)_ 8. _Rex v Ngedzeni and Others 1989 (1) SA 687 (A)_ 9. _Senyane v Rex LAC 2007-2008 72_ 10. _S v Hlapezula and Others 1965 (4) SA 439 (A)_ 11. S v Madlala 1969 (2) 637 (A) 12. _S v Malinga and Others 1963 (1) S.A 692 (A.D)_ 13. _S v Shaik and Others 1983 (4) 57 (A)_ 14. _S v Singo 1993 (2) SA 765 (A)_ __Statutes__ 1. _Criminal Procedure and Evidence Act 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ **JUDGEMENT** **INTRODUCTION** [1] The accused persons are charged with contravention of _section 40 (1) of the Penal Code Act, 2010, read with section 26 (1) thereof_. In that upon or about the 5th day of March 2017, and at or near Matukeng in the district of Maseru, the accused sharing a common intention or purpose to pursue an unlawful act together, did perform an unlawful act or omission, with the intention of causing the death of Polile Molungoa. [2] Accused No. 1 and Accused No. 2 appeared before court, while Accused No. 3 and Accused No. 4 have absconded. Crown applied for the separation of the trial under _section 170 of the Criminal Procedure and Evidence Act 1981. Section 170 of the Act_ , provides that; “ _when two or more persons are charged jointly whether with the same offence or with different offences, the court may, at any time during the trial on the application of the prosecutor or of any of the accused, direct that the trial of the accused or any of them be held separately from the trial of the other or others of them, and for that purpose may abstain from giving a judgment as to any of such accused”._ The court granted the application for separation of trial, allowing Accused No. 1 to be tried separately from the other accused persons. [3] During the court proceedings, the prosecution announced its intention to designate the second accused as an accomplice witness under _section 236 of the Criminal Procedure and Evidence Act 1981_. _Section 236 (1) of the Act_ provides that: “ _wherever the prosecutor at any trial or preparatory examination informs the court that any person he produces as a witness on behalf of the prosecution has, in his opinion, been an accomplice, either as principal or accessory, in the commission of the offence alleged in the charge, or the subject of the preparatory examination or that such person will in his opinion, be required to answer questions the reply to which would tend to incriminate him in respect of an offence mentioned by the prosecutor, such person shall, notwithstanding anything to the contrary, be compelled to be sworn or to make affirmation as a witness and answer any questions the reply to which wound tend to incriminate him in respect of any such offence”._ Subsequently, the court officially declared the second accused as an accomplice witness and explained the implications of this status to the individual. [4] During the trial, the accused entered a plea of not guilty to the charge of murder. However, the prosecution did not accept this plea and called four witnesses to lead evidence. **CROWN’S CASE** **PW1 - Lekhooa Tolo** [5] He gave a testimony stating that he resides at Ha Thaabe and completed standard 5. He recognized the accused because they reside in the same village. On 5th March 2017, he was with the accused and Pule Ramokhosi, herding cattle near the accused's home. Thabang Makhetla arrived and summoned the accused. The accused went to Thabang, and they stood about 39 paces away from them. They had a brief conversation, after which the accused called the witness and Pule to join them. Then, the accused and Thabang ran towards Ha Thaabe village. The accused informed the group about a deceased who was in the donga with his wife. The group split into two, and the accused hurled a stone toward the location where the deceased and his wife were. Subsequently, the accused's wife emerged from the donga and fled, with the group in pursuit of the deceased. Despite his attempts to escape, he was outrun and then attacked by dogs, which brought him down. The group then proceeded to beat him with sticks, including lebetlela and mohloare sticks. Thabang and Pule were wielding mabetlela sticks, while the witness and the accused were armed with mohloare sticks. The deceased was struck on the waist by the witness, while Thabang targeted his head. The assault went on for approximately 5 to 10 minutes, during which the deceased was repeatedly struck. [6] After the attacks, they left him lying face down. They then moved away, but the deceased managed to get up and run. Thabang and Pule pursued him, caught up to him, and assaulted him once more. At the time, the deceased and the witness were searching for their blankets. They witnessed Thabang and Pule chasing and attacking the deceased. Upon their return, they were in possession of the deceased's wallet, ID card, and cell phone. The accused was informed that the deceased was beaten and was shown items taken from the deceased. They then went to report the incident at the chief's place where they encountered PW2. The accused explained to PW2 that they had assaulted the deceased after finding him with his wife at Leralleng area. Additionally, the deceased informed the chief, PW3, that they had assaulted the deceased after finding him with his wife in the donga. Following this, the accused was arrested, and the following day, the remaining individuals involved were also arrested and detained. [7] During the cross-examination, the witness was asked if their intention was to arrest the deceased, to which the witness confirmed. It was also suggested that the love affair between the deceased and the accused's wife had caused problems in the accused's family, but the witness stated that he was not aware of that. The defence further suggested that the deceased had raped the accused's wife in the donga, to which the witness replied that he did not see anything except what the accused had told them. It was then put to the witness that the deceased got up and ran intending to go to the accused's wife, but the witness stated that he did not know why the deceased was running away. The witness also confirmed that they set the dogs on the deceased and that the dogs bit the deceased on the legs. Finally, it was suggested to the witness that he and the accused did not agree that Pule and Thabang should chase the deceased and hit him, and the witness replied that they did not agree to that. It was further suggested to the witness that the accused and the witness did not kill the deceased, and the witness affirmed that they did not kill the deceased. [8] Under re-examination, the witness was asked whether he was aware of the person who caused the fatal wounds to the deceased. He answered that he was not aware of such a person. **PW2 - ‘Masera Thaabe** [9]**** She stated that she lives at Ha Thaabe and went up to standard 7. She is a farmer. She knows the accused as the accused’s father and her husband are siblings. Her husband is the Chief of Ha Thaabe. On the fateful day, the accused, Thabang, Pule, and PW1 arrived at the chief’s place. The accused gave her a phone, ID card, and wallet of the deceased. They told her that they assaulted the deceased after they found her with the accused’s wife. She called her husband who eventually arrived. [10] Under cross-examination, the witness was asked if she was aware of any bad blood between the accused and the deceased, to which she replied that she was not aware. She confirmed that the accused said they assaulted the deceased after they found the deceased with the accused’s wife in the donga. The witness stated that she did not know anything about the love affair between the deceased and the accused’s wife. **PW3 - Sekhobe Thaabe** [11] He testified that he is the chief of Ha Thaabe. He went up to standard 5. He knows the accused as he is his elder brother’s son. He was at Temaneng when he received a call from PW2 informing him to rush home. When he arrived at his home he found the accused, Thabang, Pule, and PW1 in the company of his wife (PW2). He asked them what happened. The accused told him that they assaulted the deceased and that the deceased might be dead. The accused told him that the deceased was at Lehlakeng. He raised the alarm and proceeded to the crime scene. He found the deceased lying prostate and he could not speak. Later he learned that the deceased passed on. He saw a wound on the head, bruises on the body, and dog bites on the legs. Police arrived and they took the deceased away. He took the deceased’s phone, ID card, and wallet to the police. [12] Under cross-examination, it was suggested to the witness that the deceased was found raping the accused’s wife. The witness stated that the report he received was not like that. He confirmed that he saw dog bites on the deceased’s legs and bruises on the body. He was adamant that he did not see the dog bites on the deceased’s neck. He confirmed that the accused said they finished the deceased down there at Lehlakeng. Under re-examination, the witness confirmed that the report he got from the accused was that the accused found the deceased and the accused’s wife intimate in the donga. **PW3 - Police Constable Rampine** [13] He is a member of the Lesotho Mounted Police Service aged thirty-five years old. He has been in the service for 11 years. In 2017 he was stationed at Maseru Rural. On the 05 day of March 2017, he was on duty, when Tseliso Thaabe Letsie arrived in the company of the accused. He explained that they were there concerning the death of the deceased. He introduced himself to the accused, warned and cautioned the accused and sought his explanation. He gave the accused a charge of murder. He seized a lebetlela stick and a mohloare stick and kept them, while police Ralejoe filled LMPS 12, concerning the sticks. He handed the two sticks to police Ralejoe. He tendered in the two sticks and the LMPS 12 as exhibits, marked exhibit 1 and exhibit A respectively. The investigating officer handed over the deceased’s ID card, phone, and wallet to his next of kin. The defence opted not to cross-examine this witness. [14] The defence admitted the three statements and the post-mortem report in terms of _sections 273 (1) of the Criminal Procedure and Evidence Act 1981. 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”_. Molungoa Molungoa in his identifying statement stated that on the 10th day of March 2017, he identified the body of the deceased and consented to the post-mortem examination of the deceased. The deceased was his uncle. The statement was marked exhibit B. In his Identifying statement Rethabile Mochekele, stated that on the 10th day of March 2017, he identified the body of the deceased and that he consented to the post-mortem examination of the deceased. The deceased was his maternal uncle. The statement was marked exhibit C. The post-mortem report shows that the cause of death was subdural haematoma due to assault (trauma). Remarks on external appearance are multiple wounds on the head. Remarks on the skull are depressed fractured skull right side temporal bone. Subdural collection of blood. It was marked exhibit D. [15] In his statement, Thaabe Letsie stated that on the 05th day of March 2017 at around 18:00 hours, he received a call from PW3 informing about the incident relating to the deceased at Leralleng. He went to Leralleng and found people gathered there. He encountered the accused who explained to him that he found the deceased and his wife in a compromising situation in the donga. He said he hurled a stone at the deceased and the deceased ran away. He set the dogs on the deceased and caught up with the deceased. He told him that he assaulted the deceased with a stick until he died. He handed the accused over to the police. The statement was marked Exhibit E. Crown then closed its case. **APPLICATION FOR DISCHARGE** [16] The defence moved an application for the discharge of the accused in terms of _section 175(3) of the Criminal Procedure and Evidence Act 1981. Section 175 (3)_ 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”_. The defence submitted that the crown failed to make a prima facie case against the accused therefore he should be discharged. To motivate its application the defence submitted that the crown relied on the doctrine of common purpose, but there was only one accused person before court, whereas it was the wife of the accused who was affected. The defence submitted that the accused was shocked to find his wife being raped by the deceased. When the deceased ran away, Pule and Thabang chased him, caught up with him and assaulted him. He submitted that the accused cannot be held criminally liable for the actions of other people. [17] The court ruled that the crown had established a prima facie case against the accused on the ground that the crown managed to put the accused at the crime scene and showed his participation in the commission of the crime acting in common purpose with others. Additionally, the court considered the unchallenged evidence of PW1 that the accused took part in assaulting the deceased. The court further found that the accused admitted that he participated in assaulting the deceased. The court then ruled that the crown established a prima facie case against the accused, therefore application for the discharge of the accused person was refused. **DEFENCE’S CASE** **DW1-Makoaela Thaabe** [18] The accused testified in his defence. He stated that he lives at Ha Thaabe. The deceased resided at Ha Au. He stated that he came to know that the deceased had an illicit love affair with his wife. He received this information from one Tumelo around 2016. He confronted his wife about this love affair and his wife assured him that she ended the affair. Subsequently, the deceased would fetch his wife from his home. He then sent his wife to her parental home, and this love affair continued. [19] On the fateful day, Thabang came to him and told him that the deceased was in the donga with his wife. He went to the donga in the company of PW1, Pule, and Thabang. He instructed them to apprehend the deceased. He saw the deceased and his wife intimate in the donga. He hurled a stone at them, and the deceased ran away. Thabang set his dogs on him. The dogs bit his legs. They caught up with the deceased, and the deceased fought them. They assaulted him with sticks and left him lying there still alive, as he stopped Thabang and others from assaulting him any further. They assaulted the deceased with sticks for a minute, while the deceased was on the ground. They were looking for their blankets when they noticed that the deceased got up and was running away. Pule and Thabang chased the deceased. They caught up with him and assaulted him. Pule and Thabang found him and PW1 already home. They told him that they left the deceased there and he was tired. They reported the incident to PW2, who then called PW3. He reiterated that he left Pule and Thabang at Lehlakeng assaulting the deceased, while he walked home in the company of PW1. [20] Under cross-examination, the crown counsel asked the accused if he assaulted the deceased first, and the accused stated that he hit the deceased because the deceased was fighting him. The accused admitted that he found the deceased on the ground. The crown counsel put it to the accused that the deceased was not carrying any weapon, so how could the deceased fight him? The accused replied that he found the deceased standing. The crown counsel asked the accused what the deceased was fighting him with. The accused said the deceased was fighting him with his bare hands and stones. Then the crown counsel asked the accused if the deceased could fight him while the dogs were biting him, and his answer was in the affirmative. Further under cross-examination, the accused admitted that four of them assaulted the deceased with sticks. The defence then closed its case. **SUBMISSIONS** [21] Adv. Lepheana, the crown counsel submitted that common purpose is depicted in the evidence of PW1 when he testified that when Pule and Thabang attacked the deceased for the second time, the accused and PW1 did not stop them from attacking the deceased further. She submitted that they associated themselves with the assaults on the deceased by Thabang and Pule. She submitted further that the actions of the four accused persons contributed to the ultimate death of the deceased. She further submitted that the fact that the accused and PW1 went about looking for blankets, while others were assaulting the deceased, does not absolve them from criminal liability because they had a common goal to kill the deceased. She referred the court to the case of **_Rex v Ngedzeni and Others_**** _**[1]**_**_._ She added that the accused was at the scene and was aware of the unlawful act, and his actions were in furtherance of the unlawful actions. She submitted that the accused admitted that he participated in the assaults and the killing of the deceased, as he never stopped others from further assaulting the deceased, as they were working in a unified form. She added that the accused cannot disassociate himself from the actions of others because the injuries inflicted by the other two people cannot be distinguished from the injuries inflicted by the accused. [22] She submitted further that the post-mortem report shows that the deceased sustained multiple wounds on the head, therefore these injuries should be attributed to all of them as they acted in common purpose. She submitted that the evidence of the accused that he and PW1 left the two co-accused at Leralleng, and got home without them, is not truthful, because PW1 and PW2 corroborated each other that they arrived at PW2’s house together and that it was the accused who handed the deceased’s items to PW2. The crown counsel urged the court to find the accused’s version that the deceased fought them untruthful because there was no way the deceased could fight them while the dogs were attacking and biting him, and he had fallen to the ground. She submitted that four of them left the deceased lying there, with the settled mind that he was dead, as they did not bother to check his condition. [23] Adv. Lesuthu, the defence counsel submitted that the crown’s case of common purpose was misplaced because we cannot talk of common purpose concerning people who are not before the court. He submitted that since the other accused persons are not before the court, they are presumed innocent until proven guilty, therefore the accused person cannot be taken to have shared a common purpose with innocent people. He submitted that the crown has dismally failed to prove that the accused had the necessary intention to kill the deceased when there is evidence that he did not assault the deceased on the second occasion. He submitted that when Thabang and Pule chased the deceased and assaulted him for the second time, they were not furthering the intention of the accused who was going away at that stage. He added that common purpose ended at the time four of them left the deceased lying prostrate there. He submitted that the injuries that were inflicted by Pule and Thabang were the fatal ones, and the accused cannot be associated with those injuries. He stated that the post-mortem report does not show that the deceased was bitten by dogs. He therefore argued that the accused should be acquitted. **ACCOMPLICE WITNESS** [24] Before proceeding further, it is convenient at this stage to deal with the law relating to accomplice evidence. The starting point is no doubt _section 239 of the Criminal Procedure and Evidence Act 1981_. It reads: “ _Any court may convict any person of any offence alleged against him in the charge on the single evidence of any accomplice, provided the offence has, by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of the court to have been actually committed”._ [25] In approaching the evidence of PW1, this court sought guidance from the celebrated remarks of **Shreiner J.** in **_Rex v Ncanana**[2]**_**_,_ namely: “ _The cautious Court or jury will often properly acquit in the absence of other evidence connecting the accused with the crime, but no rule of law or practice requires it to do so. What is required is that the trier of fact should warn himself, or if the trier is a jury that it should be warned of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped , by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of the requirements of sec 285 [ our section 239] does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that he may be convicted wrongly although sec 285 [our section 239] has been satisfied will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced, even in the absence of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is, in such circumstances, only permissible where the merits of the former as witness and the demerits of the latter are beyond question”._ [26] The same principle was buttressed by **Holmes JA** _in**S v Hlapezula and Others******[3]****_. See also **_Bereng Griffith Lerotholi and Others v The King_**** _**[4]**_****_1959 AC 11 (PC); Manamolela and Others v Rex_**** _**[5]**_****_, Phasumane and Others v Rex_**** _**[6]**_**. **__** [27] I must state from the onset that this court is fully alive to the dangers inherent in the evidence of an accomplice, therefore this court has properly cautioned itself accordingly. **DOCTRINE OF COMMON PURPOSE** [28] It is a matter of common cause that the crown’s case is based on the doctrine of common purpose. The leading case as regards the invocation of the doctrine of common purpose is**_S v Mgedezi**[7]**_**. “ _In the first place he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common purpose with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea, so in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue”._ [29] In terms of this doctrine, liability for commission of a crime is by attribution to individuals who partook in the crime (_Burchell and Milton, Principles of Criminal Law 2 nd Ed. 393)._ For attribution of liability to be imposed, the accused’s participation in the crime should flow from either of the following scenarios: (a) by a prior agreement, express or implied between the participants to commit an offence, (b) it may arise from impulsive participation (without prior agreement) **_Magmoed v Janse Van Rensburg and Others_**** _**[8]**_**.**** In addition to participating impulsively, there must be a requisite state of mind (_mens rea_). The accused must have intent, in common with other participants in the crime charged and must have actively associated himself with the conduct of other participants to achieve a common purpose of committing a substantive crime charged _.**(S v Singo**[9]**)**_. **** [30] In **_S v Madlala**[10]**,_** **Holmes JA** expressed himself in the following terms: _“It is sometimes difficult to decide when two accused are tried jointly on a charge of murder, whether the crime was committed by one or the other or both of them or by neither. Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof-_ 1. _that he individually killed the deceased, with the required dolus, e.g by shooting him, or_ 2. _that he was a party to a common purpose to murder, and one or both of them did the deed; or_ 3. _that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequence, and it occurred; see**S v Malinga and Others, 1963 (1) SA 692 (A. D) at p. 694 F-H and p. 695; or**_ 4. _that the accused must fall within (a) or (b) or (c) – it does not matter which, for in each event he would be guilty of murder._ **ANALYSIS AND DISCUSSION** [31] The incident in question involved the accused, PW1, Pule, and Thabang pursuing the deceased to apprehend him. Eventually, the dogs managed to catch the deceased, not only bringing him down but also inflicting bites on his legs. It was at this moment that the accused and his associates reached the scene, finding the deceased on the ground. Despite the deceased being outnumbered by the four men and being attacked by the dogs, the accused claimed that the deceased fought back using only his hands and stones. It's important to note that the accused and his companions were armed with sticks, while the deceased was unarmed. Given the circumstances, it raises the question of whether it was feasible for the unarmed deceased, already on the ground and under attack by dogs, to fight four men armed with sticks. The accused’s version that the deceased fought them in those circumstances, is not reasonably possibly true. Additionally, the accused alleged that the deceased had stones, but it should be noted that the deceased only fled after the accused threw a stone at him, outran them, and was subsequently caught and brought down by the pursuing dogs. [32] They assaulted him and left him for dead. Would the deceased who was being pursued by four men and dogs have time to look for stones. I don’t think he had that opportunity. All he wanted to do was to save his life from the hands of four men and their dogs. I find the accused’s version that the deceased fought them with stones not reasonably possibly true, therefore it is rejected as false. I say this because the accused admits that the deceased outran them, and they set dogs on him. He admits that they assaulted the deceased with sticks, and they left him lying there. The accused’s evidence is corroborated by PW1 who said they found the deceased on the ground, and they hit him with sticks. However, under cross-examination of PW1, the accused did not say that the deceased was fighting them with stones. The accused raised the issue of the deceased being armed with stones, for the first time, in his examination in chief. I hold a strong view that the defence did not put this version to PW1, because it was an afterthought. [33] The accused claimed that he discovered his wife was involved in a romantic relationship with the deceased. As a result, he sent his wife to her parents' house to contemplate their marriage. According to the accused, his wife assured him that she had ended the relationship with the deceased. However, the deceased allegedly continued to pursue the accused’s wife, even going to the accused's home to take her away. It is evident that, on the day in question, the deceased and the accused's wife met at their usual spot for a private appointment. The accused stated that the deceased was allegedly sexually abusing his wife without her consent. Both PW2 and PW3 support each other's accounts that the accused informed them of finding the deceased and his wife in a sexual act. However, it's important to note that the accused did not mention either to PW2 or PW3 finding the deceased in the act of raping his wife. This court must consider the fact that the accused testified that he learned about the deceased and his wife having an illicit love affair. This court is further mindful of the fact that the accused sent his wife to her parental home, due to this adulterous affair. The evidence strongly suggests that they were discovered in the ravine involved in a sexual encounter because they were in a romantic relationship. The accused's claim that the deceased was assaulting his wife is not credible. Therefore, the court dismisses the accused's account as untrue. [34] I now want to deal with the accused’s defence that the deceased’s death cannot be attributed to him because he did not take part in the assaults on the deceased on the second occasion. This issue brings me to the question of the requisites of the doctrine of common purpose. These requisites have been laid in the cases referred to in the preceding paragraphs. [35] Be that as it may I would like to consider the evidence of the accused and PW1 concerning common purpose. It is a matter of common cause that four of them assaulted the deceased with sticks. On the second occasion only Thabang and Pule assaulted the deceased with sticks. They robbed the deceased of his phone, wallet, and ID card. The accused person said he went home and left Thabang and Pule at Lehlakaneng. PW1 said Pule and Thabang joined them there at Lehlakaneng, and they handed the deceased’s items to the accused. PW1 further said together they proceeded to the chief’s place. [36] Upon their arrival at the chief's place, the accused handed over the deceased's belongings to PW2. PW2 recounted asking for an explanation, to which the accused responded that they had taken the items from the deceased, whom they had found engaging in a sexual act with his wife in the donga. PW2 confirmed the arrival of four men at her place together. If the accused's account that they returned home in the absence of Pule and Thabang is accurate, then it follows that the accused could not have presented the deceased's belongings, as they would have remained in the possession of Pule and Thabang. If the accused’s version was truthful, PW2 could not have received those items from the accused when they arrived at her house, because those items would have been in the possession of Pule and Thabang. During the report to PW2, the accused refrained from explicitly stating that Pule and Thabang had assaulted the deceased, who may have been deceased. Instead, the accused conveyed that they had assaulted the deceased after discovering him sleeping with his wife in the donga, and that he may have been deceased. The accused detailed their actions together to PW2 without attributing the assault specifically to Pule and Thabang. [37] The evidence indicates that Pule and Thabang were the ones responsible for robbing the deceased of his belongings. The question arises as to how these items ended up in the possession of the accused, who subsequently handed them over to PW2. The straightforward explanation is that Pule and Thabang gave the items to the accused after fulfilling their shared objective of attacking the deceased. During the examination in chief, the accused admitted to participating in the assault on the deceased along with others, but he later intervened to prevent further harm to the deceased. However, during cross-examination of PW1, the defence failed to put this version to PW1. The court was therefore denied an opportunity to obtain PW1’s reaction to that version. I find that this version was not put to PW1 because it was an afterthought. After all, there was just no way Adv. Lesuthu with his immense experience could have missed putting that important question to PW1. [38] I want to revert to the issue of common purpose in the sense that the accused submitted that he did not take part in the killing of the deceased. I wish to refer to the case of **_Ramaema v Rex**[11]** _**where the following was said: “… _but I should be prepared however, to say that the classical meaning of the doctrine of common purpose is that, where two or more persons associate together or agree in a joint unlawful criminal undertaking, each one of them will be responsible for any criminal act committed by the other or others in the furtherance of their common purpose. In such a situation the acts of one are the acts of the other(s). See**S v Shaik and Others******[12]****. In a case where an accused has been shown to have joined a conspiracy, if he is to escape criminal liability, it must be proved as a fact that the accused in each case dissociated himself from the common design before it was executed”. _ [39] In **_Ramaema case_** (_supra_) on page 729 the court quoted with approval what was stated in the case of **S v Madlala**[13]**,** **Holmes JA** expressed himself in the following terms: _“It is sometimes difficult to decide, when two accused are tried jointly on a charge of murder, whether the crime was committed by one or the other or both of them, or by neither. Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof-_ 1. _that he individually killed the deceased, with the required dolus, e,g by shooting him; or_ 2. _that he was a party to a common purpose to murder, and one or both of them did the deed; or_ 3. _that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing the death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequences, and it occurred; see**S v Malinga and Others****[14]**; or _ 4. _that the accused must fall within (a) or (b) or (c)- it does not matter which, for in each event he would be guilty of murder._ [40] The accused's intentions are to be assessed based on the entire sequence of events. The accused claimed that the intention was to capture or seize the deceased. The dogs assisted the accused and his associates in capturing the deceased. However, did the accused persons catch the deceased? The answer is no. Despite having plenty of chances to capture him when the dogs had him, they chose not to. This suggests that they had different motives for not apprehending him. Can it be rightly said that the accused is not criminally liable for the deceased’s death because he did not take part in the second assault on the deceased? I must hasten to show that after the second assault on the deceased, the accused received the deceased’s items. The accused person should have contemplated the use of violence, carrying with it the likelihood of serious injury or death during this period. The accused told PW2 and PW3 that they had attacked the deceased and that the deceased might have died as a result. This evidence indicates that the accused acknowledged that their shared objective had been accomplished. Upon reviewing all the evidence, there is no instance where the accused distanced himself from the joint plan before it was carried out. The accused’s defence that he should not be associated with the actions of Pule and Thabang is misconceived because according to the doctrine of common, he is responsible for any criminal act committed by the other (s). See **_Senyane v Rex_**** _**[15]**_****__** where **Ramodibedi JA** as he then was had this to say: “The _true import of this doctrine lies in the fact that where two or more persons associate together or agree in a joint unlawful criminal undertaking, each one of them will be responsible for any criminal act committed by the other (s) in the furtherance of their common purpose. In such a situation the acts of one are the acts of the other(s)._ [41] It cannot be avoided that the accused, PW1, Pule and Thabang associated together in a joint unlawful criminal undertaking, which was to attack the deceased. Each one of them became responsible for any criminal act committed by others. Put differently, the accused person was responsible for the criminal acts committed by Pule and Thabang in the furtherance of their common purpose, which was to attack the deceased. In such a situation the actions of Pule and Thabang are considered as his acts as well. While there, I must remark that the accused person did not deny that he participated in the assaults on the deceased on the first occasion, in furtherance of their common purpose. Therefore, he cannot claim that he is not criminally liable for his partners' actions, because he actively associated himself with the deceased’s murder. I say that the accused actively associated himself with murder, because he was present when others chased the deceased, caught up with him and assaulted him. He received the items that were robbed from the deceased, and he reported to PW2 and PW3 that they assaulted the deceased, who might be dead. His actions show that he associated himself with others to further the common purpose. [42] On the issue of single evidence of accomplice- PW1, this court has considered the undisputed evidence of the accused and PW1 that he participated in the assaults on the deceased while the deceased was defenceless and helpless on the ground. This court has further considered the evidence of post-mortem report. The actions of the accused and others demonstrate that they acted in common purpose in furtherance of the common intention of causing the death of the deceased. The post-mortem report shows that the deceased sustained multiple wounds on the head. It also shows that the skull was depressed and fractured, and there was subdural collection of blood. Apart from the evidence of the accomplice, the independent evidence of the post-mortem report demonstrates that the offence that the accused is charged with, has been proved to the satisfaction of the court that it has been actually committed. [43] I am of the view that all the prerequisites set out in **_Mgedezi’s_** _**case** (supra)_ have been satisfied, therefore the accused is found guilty of murder. [44] Now that the trial has been concluded, the court has formed an opinion that PW1 has fully answered to the satisfaction of the court all the lawful questions that were put to him. PW1 is therefore discharged from all liability in the charge of murder in terms of _section 236 (1) and (2) of Criminal Procedure and Evidence Act 1981_. My Assessors Agree. **SENTENCING** **EXTENUATING CIRCUMSTANCES** [45]_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. [46] In the case of **_Lefaso V Rex_**[16], **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_ ”. [47] In **_Letuka v Rex_**[17], **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[18]. [48] 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_**[19] and **_S v Petrus_**[20]. [49] 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_**[21], **_Mohlalisi and Others_**[22]), 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_**[23]). [50] 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**[24]**”. _ [51] I have concluded that extenuating circumstances exist in favour of the accused in this matter; to wit; (a) The accused has a rural background. (b) There was absence of dolus directus. (C) There was emotional conflict towards the deceased, because of the alleged love affair between the deceased and the accused’s wife. (d) There was absence of premeditation or planning. (e) The accused is not educated. (f) Seeing his wife intimate with the deceased in the donga. [52] The court has now come to the most difficult stage of the trial which is the passing of the appropriate and just sentence that will serve the interests of justice. In passing sentence this court should consider three main factors, which are the nature of the offence, the interests of the accused, and the interests of society at large. Murder is a capital offence which carries with its maxim punishment in this country which no longer seems to be a deterrent anymore. In cases such as this one, where the court finds that the death sentence is not appropriate under the circumstances, imprisonment is the only appropriate sentence. In the case of **_Rex v Ranthithi and Another_**[25], **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 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 sentence for murder and sentence for culpable homicide. The court is enjoined to strike a proper balance between all these factors. [53] In **_R v Rajivee Soni_**[26], It was remarked that a court must not over-emphasise one factor and ultimately a balance must be struck. In** _S v Kruger**[27]** _**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_**** _**[28]**_****__** 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:_ “ _It is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society_ ”. [54] On the mitigation of the sentence, Adv. Lesuthu, the defence counsel submitted that the accused is the first offender, a herd boy and lives from hand to mouth. He submitted further that the accused has a seven-year-old child and is the sole breadwinner, as his wife has since deserted the family. He pleaded with the court to exercise some leniency when sentencing the accused. The accused’s family has broken down, which is a punishment on its own. [55] On the aggravation of the sentence, Adv. Rathebe, the crown counsel submitted that the court should consider the nature of the offence, the interests of the accused and the interests of society. She submitted that this court should demonstrate by passing a harsh sentence that killing of human beings cannot be tolerated. She added that the deceased had two children who were dependent on him for support. She further added that the loss suffered by the deceased’s family is immeasurable. Adv. Rathebe submitted that the prevalence of killings in Lesotho is a sign that there is a growing disregard for human life. She submitted that courts should impose harsh sentences to send a strong message to society that murders cannot be tolerated. [56] In passing the appropriate sentence in this matter this court has considered the nature of the offence, the interests of the accused and the interests of society. The court has considered the gravity of murder as a criminal offence and believes that the punishment for murder should be more severe than that for culpable homicide. The court is deeply concerned about the increasing number of murders in Lesotho in recent years, indicating a disregard for human life. Furthermore, the court believes that the public's trust in the criminal justice system and the administration of justice in Lesotho has eroded. It is the responsibility of this court to rebuild public confidence in the criminal justice system and the administration of justice. This confidence can only be restored if the courts impose stringent sentences in cases of murder as a means of deterrence and to send a clear message to potential offenders that murders will not be tolerated any longer. [57] The accused's personal circumstances were considered. It was noted that the accused's family had been torn apart due to an alleged romantic involvement between the deceased and the accused's wife. This situation would have undoubtedly caused the accused significant emotional and psychological distress, serving as a form of punishment. Even before the tragic incident, the accused's wife had been living separately from the deceased, as the accused had sent her to her parental home due to her adulterous relationship with the deceased. It is reasonable to assume that as a married man, the accused did not experience a normal family life during his wife's absence. Raising their child alone in the absence of his wife must have been an incredibly heavy burden for the accused. It should also be considered that on the day of the incident, the accused was confronted with a distressing scene between his wife and the deceased, which likely had a profound impact on him. The accused's actions were inappropriate as he took matters into his own hands instead of following the proper legal procedures. It's important to note that Lesotho is a country that upholds the rule of law, and individuals should not take matters into their own hands. Allowing such behaviour would lead to widespread disorder, creating a situation where only the strongest would survive. [58] The court considered the fact that the deceased was a provider for his two young children, who have now been left without a father. The court also recognized the severity of the crime of murder and emphasized the importance of imposing strict sentences in such cases to emphasize that society will not tolerate violence. The court holds the belief that human life is sacred and that no one has the right to unjustly take another person's life, as life is a gift from God. In determining an appropriate sentence for this case, the court has taken into account various factors, including the personal circumstances of the accused, the nature of the offense, and the impact on society. The court has carefully weighed these considerations to reach a fair decision. Additionally, the court has considered the plea for mercy on behalf of the accused. It has also been noted that the accused is a first-time offender, indicating that he is not likely to re-offend. As a result, the court sees the accused as someone who has made a mistake but has the potential for rehabilitation and deserves a second chance. Throughout the trial, I closely observed the accused and noted a sense of remorse in his demeanour. This observation has influenced my decision in determining the appropriate sentence for this case. It is important to note that this incident occurred in March 2017, and the trial began in September 2024, spanning seven years. I believe that the prolonged duration of this legal process has significantly impacted the accused both mentally and psychologically, serving as a form of punishment. [59] I have concluded that the appropriate sentence that will serve the interests of justice in this matter is the following. **ORDER** [60] The accused is sentenced to ten (10) years imprisonment. My Assessors Agree. _______________________ T.J. MOKOKO JUDGE **FOR CROWN:** ADV. T. LEPHEANA **FOR ACCUSED:** ADV. K. LESUTHU * * * [1] 1989 (1) SA 687 (A) [2] 1948 (4) SA (A) at 405-406 _**[3]**____1965 (4) SA 439 (A_ _**[4]**____1926-53 HCTLR 149 (PC_ _**[5]**____LAC (1980-84) 202_ _**[6]**____LAC (1985-89) 168_ _**[7]**____1989 (1) SA 687 at 705-706 B_ [8] _1993 (1) SA 777 (A) SACR 67 (G)_ [9] _1993 (2) SA 765 (A) at 772 D-E_ [10] _1969 (2) 637 (A) at 640 F-641_ [11] LAC 2000-2004 710 on page 729 [12] _1983 (4) 57 (A) at 64-65_ [13] 1969 (2) 637 (A) at 640 F- 641 [14] 1963 (1) S.A 692 (A.D) at 694 F-H and p.695 [15] LAC 2007-2008 72 at page 84-85 [16] LAC 1990- 1994 44 [17] LAC 1995- 1999 405 [18] LAC 1995-1999 at P 405 [19] 1980 (3) SA 825 (A) [20] 1969 (4) SA 85 (A) [21] 1992 (1) SACR 628 (C) [22] LAC (1980 – 1984) 110 at 117 [23] 1990 (1) SACR 426 (A) [24] LAC 1995 – 1999 at P 423 [25] LAC 2007- 2008 245 [26] CC 29/14P at Page 34 [27] 2012 (1) SACR 369 (SCA) para 11 [28] 2008 (1) SACR 223 (SCA) #### __Related documents ▲ To the top >