Rex V Katiso Senoko (CRI/T/0117/2023) [2024] LSHC 161 (5 September 2024)

# Rex V Katiso Senoko (CRI/T/0117/2023) [2024] LSHC 161 (5 September 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/161/eng@2024-09-05) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/161/eng@2024-09-05) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/161/eng@2024-09-05) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/161/eng@2024-09-05) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Katiso Senoko \(CRI/T/0117/2023\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/161/eng@2024-09-05) [ Download PDF (326.5 KB) ](/akn/ls/judgment/lshc/2024/161/eng@2024-09-05/source) Report a problem __ * Share * [ Download PDF (326.5 KB) ](/akn/ls/judgment/lshc/2024/161/eng@2024-09-05/source) * * * * * Report a problem __ ##### Rex V Katiso Senoko (CRI/T/0117/2023) [2024] LSHC 161 (5 September 2024) Copy citation * __Document detail * __Related documents Citation Rex V Katiso Senoko (CRI/T/0117/2023) [2024] LSHC 161 (5 September 2024) Copy Media Neutral Citation [2024] LSHC 161 Copy Hearing date 2 September 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0117/2023 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 5 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) * [Provocation](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-provocation) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** ******CRI/T/0117/2023** In the matter between **REX CROWN** AND **KATISO SENOKO ACCUSED** _Neutral Citation_ : Rex vs Katiso Senoko [2024] LSHC 161 CRIM (05th September 2024) CORAM : T. J. MOKOKO J DATE HEARD : 02/09/2024 DATE DELIVERED : 05/09/2024 **__SUMMARY__** _Murder- Accused pleaded defence of self-defence- totality of evidence presented discloses provocation – Section 42 (1), (2) (a), (b), and (3) of the Penal Code Act, 2010 applied – Accused having been provoked acted in the heat of passion – Accused should reasonably have foreseen that assault might lead to death of deceased – Accused found guilty of culpable homicide._ **__ANNOTATIONS__** __Cited Cases__ 1. ___Molatoli Tsibela v Rex LLRLB 1995-1996_ 2. _Molapo v Rex LAC 1990-1994_ 3. _Phumo v Rex LAC 1990-1994_ __Statutes__ 1. _Criminal Procedure and Evidence Act 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ **JUDGMENT** **Introduction** [1] The accused is charged with contravention of _section 40 (1) of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6), read with section 40 (2) of the Code_. In that upon or about the 10th of February 2019 and at or near Ha Moruthoane in the district of Maseru, the accused unlawfully and intentionally caused the death of Kapotene Mokoma. [2] The accused pleaded not guilty to the charge of murder. However, the Crown did not accept his plea and presented evidence from two witnesses. **Crown’s Case** **PW1 - Teboho Poone** [3] He provided evidence indicating that he is educated and completed Form C. In February 2019, he was employed as a bar tender at Mantsane’s bar at Ha Moruthoane. He was familiar with the accused as the accused operated a business adjacent to Mantsane’s bar. On the relevant evening, he was at his bar with Tsotang Letsie, Thabo Mohloboli, and Keketso Mputsoane, socializing and consuming alcoholic beverages. The deceased informed them that he needed to use the restroom and left the bar. After a brief period, he stepped outside for a smoke and was joined by Tsotang Letsie. Upon hearing sounds emanating from the accused’s bar, he suspected that a burglary was taking place. [4] The group quickly made their way to the shop of the accused, where they discovered that a break-in had occurred. In an attempt to alert the intruder that people were outside, PW1 forcefully shook the door. The intruder subsequently emerged from the bar through the back door, and he recognized the intruder as the deceased. Following this, he phoned the accused to report the incident. Subsequently, the witness and his company went back to Mantsane’s bar and found the deceased there. They saw a police car flashing a blue light some distance away. The police arrived in company of the accused at Mantsene’s bar, and the deceased had disappeared by that time. They took the police to the crime scene, and after the police completed their investigation, the accused, the witness, and Tsotang Letsie returned to Mantsane's bar. The accused explained that he needed to secure the snooker bar properly and would return later. [5] The accused arrived at Mantsane’s bar in his car and parked it outside the yard. The accused hurried into the bar and stated that the deceased was outside. Subsequently, the accused called out to the deceased, who responded. The accused then reminded the deceased about a previous incident where the deceased had allowed his cattle to graze on the accused's family crops, which had led to a confrontation between the accused's brother and the deceased. In response, the deceased fearlessly declared that he was not afraid of the accused and even challenged him to a fight. The accused then retrieved a lebetlela stick from his car, and accompanied by Keketso Mputsoane, went outside while Thabo Mohloboli remained in the bar. [6] He intervened when he saw the accused and the deceased in a confrontation, reminding the accused that the police had instructed him to report the incident the next day. The accused claimed that the deceased had robbed him and when confronted, the deceased challenged the accused to a fight. They were at the corner of the bar, when he left to seek out the police contact numbers from a nearby Indian shop. While attempting to make the call, he heard the unmistakable sound of a person being struck with a stick. Turning around, he witnessed the accused striking the deceased on the head with a stick. The deceased fled behind the bar, followed closely by the accused, with Keketso Mputsoane trailing behind them. [7] As he hurried behind the shop, he encountered Keketso Mputsoane, who urgently said, "That person is killing him. " Curious to learn what was happening, he continued towards the back of the bar. There, he found the deceased lying on the ground while the accused struck him with a stick. After the accused stopped, he followed him, seized a phone, and promptly called the police. Subsequently, law enforcement officers arrived, confirmed the deceased's death, and apprehended the accused. [8] During the cross-examination, the defense alleged that the witness's account of the events was not accurate. They suggested that the deceased attempted to hit the accused with a stick when the accused exited his car. However, the witness maintained that he saw the accused entering the bar and noticed the stick only when the accused went outside to retrieve it from the car. The defense also claimed that it was dark at the corner where the accused and the deceased had their confrontation, but the witness refuted this by stating that there was a light at the front of the shop where the incident occurred. [9] Furthermore, the defense suggested that the deceased was armed with both a stick and a knife. The witness denied that the deceased was carrying the stick at the time and did not see the deceased holding a knife. However, the witness did admit that a knife was found at the scene of the crime when the police arrived. The defense alleged that the knife belonged to the deceased, but the witness responded that he had only heard that the knife belonged to the deceased. [10] During the cross-examination, the defense questioned the witness about the events leading up to the altercation. The defense suggested that the accused had retrieved a stick from his car after being attacked by the deceased. However, the witness maintained that the accused had retrieved the stick during a verbal confrontation and denied that the deceased had attacked the accused. The defense further suggested that the deceased had spoken rudely to the accused because he was armed with a stick, a knife, and stones. The witness stood firm in stating that he did not see the deceased attacking the accused but acknowledged that the deceased had challenged the accused to a fight, declaring that he was not scared of him. [11] The defense counsel continued to argue that the deceased was the initial aggressor, initiating a fight with the accused while they were at the bar. However, the witness maintained that he did not witness the deceased attacking the accused physically. The defense further suggested that the witness was not present at the corner of the bar where the altercation occurred, as he had proceeded to the Indian shop. The witness clarified that when he left them, they were exchanging words but not physically fighting. The defense then proposed that the deceased had attacked the accused with a stick and the accused had defended himself with a stick, to which the witness stated that he did not witness such an event. The defence also suggested that the deceased had attempted to stab the accused with a knife during the fight, but the witness maintained that he did not see any knife being used. Lastly, the defense claimed that the accused had acted in self-defense and did not intend to kill the victim, to which the witness concurred. [12] The court asked the witness to clarify as to how many times the accused hit the deceased while the deceased was on the ground. The witness replied that it could have been once or twice. **PW2 - Police Constable Ranthake** [13] He gave testimony stating that he has served in the Lesotho Mounted Police Service for twenty-three years, with thirteen of those years stationed at Morija Police Post. In 2019, he was assigned to the investigations department and Crime Prevention Unit (CPU). On 09 February 2019, he was on duty with P/C Ralejakane and P/C Rantso. During the night patrol with P/C Rantso, their objective was to enforce closure times for bars and taverns. Their patrol led them to the bar of an individual named Refiloehape at Ha Moruthoane. They encountered PW1, Thabo Mohloboli and Keketso Mputsoane, who served as a security guard at a nearby shop. It was here that the accused approached them, claiming that his bar had been burglarized. They proceeded to the accused’s bar to assess the situation, and PW1 and his companion indicated that the deceased was the perpetrator. As a result, they advised the accused to visit the police station the following day to file a report. [14] After receiving a phone call from PW1 through Thabo Mohlobi's phone, reporting that there was trouble with the deceased, they returned to Ha Moruthoane. Upon arrival, they were taken to the back of the shop by Teboho Letsie, Thabo Mohloboli, and Keketso Mputsoe, where they discovered a person lying on the ground. Using a torch for light, they identified the deceased. The accused admitted to engaging in a physical altercation with the deceased, using a stick to assault him, pointing out the stick on the ground as evidence. He examined the deceased and observed that he had sustained serious injuries to the head. Following this discovery, the accused was charged with murder, arrested, and detained at the Morija Police Post. The stick used in the assault was seized and marked as exhibit "1". Subsequently, the deceased was taken to the mortuary. [15] During the cross-examination, the witness affirmed that the individual who called him mentioned that the deceased had been causing problems. The witness also mentioned that because he was not the investigating officer in this case, he was not aware of the details of the investigation. The court then asked the witness to specify how many wounds he saw on the head. The witness responded that he saw three wounds in the middle of the head. When asked if he found the knife at the scene, the witness said he did not find the knife at the scene of a crime. He confirmed that the accused didn't mention the knife to him but did admit that the stick belonged to him. [16] The defence admitted three statements and the post-mortem report in terms of _section 273 (1) of the Criminal Procedure and Evidence Act 1981. Section 273 (1) of the Act, provides that an accused person 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_. In his statement, Bataung Mokitimi stated that on the 14th February 2019 he identified the body of his nephew, the deceased before the doctor performed post-mortem examination. The statement was marked exhibit B. Tjama Mokoma stated that on the 14th February 2019, he identified the body of the deceased before the doctor could perform post-mortem examination. The deceased was his uncle’s son. This statement was marked exhibit C. [17] Thabo Mohloboli reported that he got home around 8:00 pm after a trip to Maseru. Upon arriving, he visited a snooker bar and purchased some beer. At approximately 9:00 pm, he moved to Refiloe's bar at ha Moruthoane bus stop. By 10:00 pm, he had returned home. As he was getting ready to go to bed, a person identified as PW1 came to request the use of a phone to contact the accused. It was during this encounter that PW1 informed the accused about a burglary that had taken place at his bar. While at Refilooe's bar, the police arrived, and they took the police to Monyaka bar. After the accused left, himself, Teboho, and Keketso Mputsoane stayed at Refilooe's bar. Accused returned and interrogated the deceased about his presence there. Although he heard about a commotion, he chose not to go outside. It was reported that the accused struck the deceased with a stick, resulting in critical injuries. The police were summoned, and they promptly removed the deceased from the scene. The statement was marked Exhibit D. [18] The post-mortem report shows that death was due to traumatic subdural hematoma. Remarks on external appearance are multiple lacerations on the head with a cut on his left ear, and bruises on the chest. The report was marked Exhibit E, and the crown closed its case. **Defence’s case** **DW1 - Katiso Senoko** [19] In his testimony, he stated that he resides at Ha Moruthoane and completed Form C. He is currently thirty-five years old. In 2019, he owned and operated two bars: the Snooker Bar and the Monyaka by Night Bar. Unfortunately, on 10th October 2019, he was shot at the Snooker Bar by unidentified assailants who have not been apprehended to this day. The shooting resulted in him being confined to a wheelchair due to the impact of the bullet on his spinal cord. Six months ago, he transitioned from using a wheelchair to using crutches. Since the shooting, he has been regularly attending medical check-ups and physiotherapy sessions at Tsepong Hospital. Notably, he emphasized that in February 2019, he did not consider himself disabled as the shooting incident occurred in October of the same year. [20] On the 9th of February 2019, at approximately 9:00 pm, he received a phone call from PW1 informing him that there had been a burglary at the Monyaka by night bar. He met the police at the gate and accompanied them to the Monyaka bar. The police inspected the crime scene and then advised him to go to the police station the next day to file a case. He then went to Refiloe's bar and shortly after arriving, he informed PW1 and others that he needed to go to the snooker bar, to properly secure the doors. Upon returning in his car and parking it outside the yard, as he approached the entrance of Refiloe's bar, he noticed the deceased hiding by the window, which startled him. [21] He witnessed the deceased approaching him while holding a stick. In response, he hurried into the bar and Keketso Mputsoane looked through the door to monitor the situation. When he questioned the deceased about his presence, the deceased reciprocated by asking the accused the same question. Despite Mputsoane's attempt to send the deceased away, the deceased refused to leave. Eventually, the witness discreetly exited the shop and retrieved a stick from his car as the deceased seemed ready to engage in a fight. Just as the deceased charged toward him, both PW1 and Keketso Mputsoane intervened, preventing the deceased from striking the accused with the stick. [22] He stated that PW1 walked toward the Indian shop, while Keketso stayed between him and the deceased. The deceased struck him with a stick on the neck. In response, the witness struck the deceased with the stick.The deceased overpowered Keketso Mputsoane, leading to a struggle between the witness and the deceased. During the altercation, he noticed a knife falling from the deceased, prompting him to apply more force to defend himself. Eventually, he overpowered the deceased, struck him with a stick, and the deceased fell, dropping his own stick. He then went into the bar and called a police officer named Ranthamane. Subsequently, the police arrived at Refiloe’s bar. He testified that he acted in self-defence as the deceased attacked him with the stick, and he observed a knife falling from the deceased. [23] He mentioned that his residence is located close to the deceased's home at Ha Leutsoa, although the deceased spent his childhood at his mother's residence at Ha Moruthoane. He expressed that the passing of the deceased had a detrimental impact on his family, as the deceased was the only male sibling in his family. The deceased was not gainfully employed but instead looked after the family's livestock. Lastly, he mentioned that the deceased's death strained the relationship between his family and the deceased's family. [24] During cross-examination, the accused person was accused of leaving the bar to retrieve a stick from his car to attack the deceased. However, the accused denied having any intention to harm the deceased. Furthermore, the witness was asked if his claim that the deceased was armed with a knife and a stick was fabricated, to which the witness stood firm, stating that the deceased was indeed carrying those items. The prosecution then suggested that the accused struck the deceased with the stick while the deceased had turned his back. However, the witness defended himself by stating that he had acted in self-defense during the altercation with the deceased. When the prosecution further suggested that striking the deceased on the head, a delicate area of the body, demonstrated intent to kill, the witness replied that although he acknowledged the head's vulnerability, the fight occurred in a dark area behind the bar, making it difficult for him to know where his blows were landing. **Submissions** [25] During the submissions, Adv. Rathebe, the crown counsel, argued that the evidence presented by the crown proves beyond a reasonable doubt that the accused unlawfully assaulted the unarmed deceased. She pointed out that the accused's claim that the deceased was carrying a knife, and a stick was a fabrication, as no such items were found at the crime scene except for the accused's stick. Furthermore, she suggested that the accused had other choices available, such as going to Monyaka bar to spend the night, seeking refuge at his brother's house, or driving away, instead he deliberately chose to pick up the stick to use it as a weapon. She also emphasized that the post-mortem report revealed multiple head injuries sustained by the deceased, indicating an intention to kill the deceased. Additionally, she argued that the accused went beyond self-defense as there was no immediate threat to his life since the deceased did not initiate the attack. [26] The argument presented was that the defense's failure to question PW2 about the accused's claim that the deceased was armed with a stick and a knife indicated that this claim was an afterthought. If the deceased had been wielding these items as the accused had stated, it was suggested that PW 2 would have found them at the scene of the incident. She invited the court to conclude that since these items were not found, the deceased could not have been carrying them. It was further argued that the accused had left the bar and gone to the car to retrieve the stick to assault and kill the deceased. [27] The defense counsel, Adv. Pheko, argued that it is widely acknowledged that the deceased was troublesome, a fact supported by both PW1 and PW2. It was emphasized that the deceased was not an innocent party, consistently taking on the role of aggressor. The defense also highlighted the return of the deceased to Refiloe’s bar as evidence of his questionable motives. Furthermore, it was pointed out that there had been a verbal altercation between the deceased and the accused, during which the deceased openly challenged the accused to a fight. Adv. Pheko also brought up the burglary of the accused’s bar, reportedly by the deceased, and emphasized the lack of remorse and the deceased's confrontational demeanour. The defense firmly asserted that the deceased was the aggressor, thus justifying the accused's actions as an act of self-defense. [28] In their argument, the defense contended that the court should acknowledge the common practice of shepherds carrying sticks. They suggested that this fact supports the accused's claim that the deceased was armed with a stick on the night in question. Additionally, the defense urged the court to believe the accused's assertion that the deceased had a knife. Furthermore, they emphasized that the accused did not use disproportionate force. **The Law** [29] _Section 42. (1) of the Penal Code[Act, No. 6 of 2010](/akn/ls/act/2010/6)_, provides that for the purpose of this section- _“Provocation” includes, any wrongful act or insult of such a nature as to be likely when done or offered to an ordinary person or in the presence of an ordinary person to another person who is under his or her immediate care of to whom he or she stands in a conjugal, parental, filial or fraternal relations to deprive him or her of the power of self-control and to induce him or her to assault the person by whom the act or insult is done or offered;_ _“Ordinary person” means an ordinary person of the class of the community to which the accused belongs._ _Sub-section (2) provides that a person who-_ 1. _Unlawfully and intentionally kills another under the circumstances, which, but for the provisions of this section, would constitute murder; and_ 2. _Does the act which causes death in the heat of passion caused by sudden provocation as defined in subsection (1) and before there is time for the person to have reasserted his or her self-control, commits the offence of culpable homicide only;_ _(3) The provisions of this section shall not only apply unless the court is satisfied that the act which causes the death bears a reasonable relationship to the provocation._ [30] In the case of **_Molatoli Tsibela v Rex_**** _**[1]**_**the Court of Appeal had this to say: _“The taking of the life of a fellow human being albeit pursuant to significant provocation and in the heat of the moment- remains a most serious offence and must be punished adequately. This also applies to the serious wounding of the complainant in this matter. These facts must always be borne in mind; however, we must also not lose sight of the following;_ 1. _The offence were committed on the spur of the moment and without any premeditation._ 2. _The appellant was legitimately incensed by the fact that the cattle had trespassed on his property and damaged his crops._ 3. _His anger was further fanned by the conduct of the deceased and the complainant obstructing him from the exercise of his lawful right to impound the cattle concerned._ 4. _There is history of bad blood between appellant and the deceased and the complainant and their families._ 5. _The appellant is the first offender._ The Court of Appeal having considered these facts set aside the conviction on a charge of murder and substituted it with conviction of culpable homicide. The Court of Appeal considered the provisions of section 3 and 4 of the Criminal Law (Homicide Amendment) Proclamation 1959, which are in pari materia with the provisions of _section 42. (1), (2) (a), (b) and (3) of the Penal Code Act._ __[31] After carefully reviewing all the evidence presented in court by both the prosecution and the defense, it is evident that the following facts are undisputed: the accused owned two bars, one at Ha Leutsoa and the other at Ha Moruthoane. It is alleged that the deceased burgled the accused's bar- Monyaka by night bar, on the fateful night. Subsequently, the suspect, supposedly the deceased, fled the scene, but was identified by PW1. The police arrived at the scene before PW1 and others returned to Refiloe's bar, where the accused later joined them. __ **Analysis and discussion** [32] After carefully reviewing all the evidence presented in court by both the prosecution and the defense, it is evident that the following facts are undisputed: the accused owned two bars, one at Ha Leutsoa and the other at Ha Moruthoane. It is alleged that the deceased burgled the accused's bar- Monyaka by night bar, on the fateful night. Subsequently, the suspect, supposedly the deceased, fled the scene, but was identified by PW1. The police arrived at the scene before PW1 and others returned to Refiloe's bar, where the accused later joined them. [33] After leaving Refiloe's bar and stopping by Snookers bar to secure the door, the accused returned to Refiloe's bar to meet up with PW1 and his group. While at Refiloe's bar, the accused came across the deceased, who was hiding outside. The accused asked the deceased why he was there, and the deceased responded by asking the accused the same question. This led to a heated exchange of words, with the deceased challenging the accused to a fight. Before this, PW1 had reported to the police that the deceased was causing trouble at Refiloe's bar. Additionally, the deceased showed no remorse for the alleged burglary at the accused's bar earlier that night. The accused was further provoked by the deceased's conduct when he brought up an incident where the deceased let his livestock damage the accused's crops and then fought the accused's brother when confronted about it. Despite the accused's explanation, the deceased remained adamant about challenging the accused to a fight. [34]**** The evidence is clear that the deceased allegedly burgled the accused's bar. This act alone was highly provocative to the accused, who was the owner of the business. The bar was not just a source of income for the accused but also a means to support his family. Running a business involves many personal sacrifices to ensure its success. Therefore, when criminal activities, like the burglary that occurred, take place, it's natural for the business owner to be deeply affected by such actions, especially when they are the victim. [35] The accused person came to know who the alleged burglar was. When he went to Refiloe’s bar on the second occasion he encountered the deceased, the alleged burglar. He asked the deceased what he was doing there, and the deceased reciprocated the question to the accused. The accused asked him about the burglary and the deceased challenged the accused to a fight and telling the accused that he was not scared of him. At the time of the incident, the deceased's behavior was provoking to the accused. In response, the accused retrieved a stick from his parked car. The exchange of words between the deceased and the accused was intense and prolonged. It seems likely that the accused was agitated not only because his bar had been robbed, but also due to the disrespectful and unapologetic behaviour of the deceased, who boldly challenged the accused to a physical altercation. [36] The accused had a confrontation with the deceased regarding the deceased's cattle grazing on the accused's family's crops at some point in the past. The deceased had previously fought with the accused's brother when confronted about this incident. The deceased was insistent that the accused engage in a fight, expressing no fear of the accused. **Conclusion** [37] In this case, it is widely acknowledged that the defense has invoked the claim of self-defense. However, after carefully examining all the evidence presented in this court, I find it necessary to delve into the issue of provocation, which is notably evident from the evidence submitted. [38] Having said this I conclude that this court is satisfied that the actions of the accused which led to the death of the deceased bear reasonable relationship to the provocation. [39] I have further concluded that the accused killed the deceased in the heat of passion caused by sudden provocation, and before there was time for the accused to have re-asserted his self-control. From the evidence, it can reasonably be inferred that the accused was angered by the fact that the deceased allegedly burgled his bar. This was compounded by the fact the deceased was rude and challenged the accused to a fight and declared that he was not scared of him. These factors demonstrate that the accused was provoked by the deceased’s conduct. The attack on the deceased was clearly of such a nature that the accused should reasonably have foreseen that it might lead to the death of the deceased _.**See Phumo v Rex**[2]**, Molapo v Rex**[3]****_**.** [40] I therefore find the accused guilty of culpable homicide. My Assessors Agree. **SENTENCING** [41] 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. [42] In seeking mitigation for the accused's sentence, Adv. Pheko emphasized that the accused's circumstances had drastically changed in 2019. After surviving a gunshot attack that left him paralyzed and wheelchair-bound, the accused was forced to enter a partnership to run a snooker bar as a means of livelihood. His wife is currently unemployed and searching for work to support the family. With two children aged 14 and 7, one in Form A and the other in Standard 1, the accused is the sole breadwinner. The family receives occasional financial assistance from his pensioner mother. The accused also underwent a transition from a wheelchair to crutches six months ago. His injuries require regular medical checks and physiotherapy sessions at Tsepong Hospital. Additionally, the accused's attempt to initiate discussions on compensating the deceased's family was met with an unwelcoming reception. [43] During the court inquiry, the accused disclosed that he earns a monthly income of one thousand Maloti from his business. He relies on his brother's vehicle for transportation to medical appointments and physiotherapy sessions. If his brother is unavailable, he incurs a cost of four hundred Maloti for renting his neighbour’s vehicle. Despite his physical limitations, the accused can perform light tasks such as serving customers at the bar and preparing meals for himself. Additionally, he diligently follows a prescribed exercise routine as part of his physiotherapy. He has been advised to consume calcium-rich foods and aloe vera supplements. The two-litre aloe vera supplement is purchased at two hundred Maloti and typically lasts two months. Furthermore, the physiotherapist has recommended that he sleep on a mat instead of a spring-based bed, although he requires assistance to get up from the floor due to his physical condition. [44] During the aggravation of sentence, the prosecution emphasized that at the time of the offense, the victim was a 23-year-old individual who played a crucial role in his family by helping with herding the family's livestock. The deceased's family never received an apology for their loss, and the prosecution recommended that the accused, if financially able, should provide compensation to the deceased's family. Adv. Rathebe suggested that if the accused compensates the deceased's family, the accused should be sentenced to a period between 5 and 8 years, with the entire sentence suspended on the condition of paying compensation to the deceased's family. [45] Regarding the issue of compensation, the defense requested the court to impose a sum between M15,000.00 and M20,000.00 to be paid in monthly instalments of M5,000.00 per quarter. The defence also highlighted that the accused was willing to provide compensation to the deceased's family to bring them some closure. [46] In considering the appropriate sentence, it's important to consider the offense's severity, the well-being of the accused, and the broader interests of society. The individual in question has been found guilty of culpable homicide, a grave crime involving the loss of a human life. It's crucial to differentiate between the sentences for murder and culpable homicide, with the former warranting a more severe penalty than the latter. [47] The appropriate sentence in this case considers the fact that the victim, a 23-year-old young man, was an important member of his family. He was responsible for herding the family's livestock, and his untimely death has created a significant gap in their lives. It's important to note that the victim had no previous criminal record, indicating that the accused is not a habitual offender. The court views the accused as someone who has made a mistake but has the potential for redemption. As such, the court believes the accused deserves a second chance to turn his life around. [48] I have considered the following information: In February 2019, the accused was living a normal life with no disability. However, in October 2019, the accused was shot by unknown assailants who have not been caught to this day. Due to this incident, the accused became wheelchair bound as the bullet had an impact on his spine. However, six months ago, he transitioned from the wheelchair to crutches. The accused moved from the dock to the witness box during a court session. It was evident that he moved with great difficulty, and it took him a significant amount of time to reach the witness box, which is approximately 10 paces away from the dock. I have considered this disability when determining the appropriate sentence in this case. [49] Following the shooting incident, the accused was compelled to cease the operation of another bar due to his health issues, resulting in a loss of potential income. Subsequently, he partnered to manage another business, generating a monthly income of M1,000.00. The accused is the sole provider for his unemployed wife and their two children, aged 14 and 7. The elder child attends Form A while the younger one is in Standard 1. The accused undergoes monthly check-ups and weekly physiotherapy sessions at Tsepong Hospital. On occasions when his brother is unavailable for transportation, he rents his neighbour’s vehicle at a cost of M400.00. Additionally, his mother, a pensioner, occasionally provides financial assistance. [50] At the time of his untimely passing, the deceased was a young man of twenty-three years. His main responsibility was herding the family cattle, and his sudden demise left a huge void in the family. His permanent absence has deeply impacted his family members. [51] I have concluded that the appropriate sentence that will serve the interests of justice in this case is the following. **ORDER** 1. The accused is sentenced to nine (9) years imprisonment, the whole of which is suspended for two and half years, on condition that he raises the head of the deceased in the sum of M30,000.00 as follows. 1. The accused pays the first instalment of M5,000.00 on or before the 31st of December 2024 to the deceased’s family. 2. The subsequent installments of M2,500.00 per quarter shall be paid to the deceased’s family for two and half years. 3. The payments shall be made at Chief Keneuoe Leutsoa’s office, in the presence of at least one family member from both families. The payments shall be recorded in duplicate so that each family member is furnished with the record of payments. My Assessors Agree. ______________________ **T. J. MOKOKO** **JUDGE** **FOR THE CROWN :** Adv. Rathebe **FOR THE ACCUSED :** Adv. Pheko * * * [1] LLRLB 1995- 1996 140 at page 144 -145 [2] LAC 1990-1994 146 at p. 150 [3] LAC 1990-1994 140 at p. 145 #### __Related documents ▲ To the top >