Rex V Motseko Setemere (CRI/T/0109/2024) [2024] LSHC 151 (23 August 2024)

# Rex V Motseko Setemere (CRI/T/0109/2024) [2024] LSHC 151 (23 August 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/151/eng@2024-08-23) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/151/eng@2024-08-23) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/151/eng@2024-08-23) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/151/eng@2024-08-23) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Motseko Setemere \(CRI/T/0109/2024\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/151/eng@2024-08-23) [ Download PDF (405.0 KB) ](/akn/ls/judgment/lshc/2024/151/eng@2024-08-23/source) Report a problem __ * Share * [ Download PDF (405.0 KB) ](/akn/ls/judgment/lshc/2024/151/eng@2024-08-23/source) * * * * * Report a problem __ ##### Rex V Motseko Setemere (CRI/T/0109/2024) [2024] LSHC 151 (23 August 2024) Copy citation * __Document detail * __Related documents Citation Rex V Motseko Setemere (CRI/T/0109/2024) [2024] LSHC 151 (23 August 2024) Copy Media Neutral Citation [2024] LSHC 151 Copy Hearing date 20 August 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0109/2024 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 23 August 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** ******CRI/T/0109/2023** In the matter between **REX CROWN** AND **MOTSEKO SETEMERE ACCUSED** _Neutral Citation_ : Rex vs Motseko Setemere [2024] LSHC 151 CRIM (23rd August 2024) CORAM : T.J. MOKOKO J DATE HEARD : 20/08/2024 DATE DELIVERED : 23/08/2024 **__SUMMARY__** _Murder - Prosecution established a prima facie case against the accused - failure by accused to give evidence - prima facie case became conclusive against accused - prosecution proved the guilt of accused beyond a reasonable doubt - defence of self-defence rejected - accused convicted of murder with dolus directus._ **__ANNOTATIONS__** __Cited Cases__ 1. _Bobe v The State [2006] 1 BLR 254 (CA)_ 2. _Lefaso V Rex LAC 1990- 1994 44_ 3. _Lerato Mahanye and Another v Rex LLRLB 1999- 2005 105_ 4. _Letuka v Rex LAC 1995- 1999 405_ 5. _Linake v Rex LAC (2009-2010)_ 6. _Mohlalisi and Others LAC (1980 – 1984) 110_ 7. _Murray v D.P.P 1994 WLR (HL)_ 8. _Osman and Another v Attorney General Transvaal 1998 (4) SA 1224_ 9. _R v Attwood 1946 AD 331_ 10. _Rex v Ranthithi and Another_ _LAC 2007- 2008 245_ 11. _S v Mafela 1980 (3) SA 825 (A)_ 12. _S v Ngobeni 1992 (1) SACR 628 (C)_ 13. _S v Ntuli1975 (1) SA 429 (A)_ 14. _S v Petrus 1969 (4) SA 85 (A)_ 15. _S v Prins 1990 (1) SACR 426 (A)_ 16. _S v Sidziya and Others 1995 (12) BLLR 1626_ __Statues__ 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) thereof_. In that upon or about the 6th day of March 2017, and at or near Ha Mokaoli in the district of Maseru, the accused unlawfully killed Katleho Sekhonyana. [2] Count II was withdrawn by the Crown against the accused, who pleaded not guilty to the charge of murder. However, the Crown did not accept his plea and presented evidence from five witnesses. **Crown’s Case** **PW1- Ramanea Solane** [3] He testified that he lives at Ha Mokaoli in the Maseru district and studied up to Form C. He knows the accused as they grew up together at Ha Mokaoli. On the 6th of March 2017, he went to Ha Majane to one Tsepo Mohloai’s shop/shack from Ha Mokhuthoane. The accused joined him, and they agreed to go and have some drinks. On their way to the tavern, they encountered the deceased. When he was about to enter the tavern, he realized the accused was not there. He went to the gate of the fence wall, and then he heard a gunshot. He witnessed the accused shooting the deceased. He was shocked and stood there until the accused stopped shooting. After that, he went home to sleep because he was terrified. He mentioned that they met the deceased halfway to the tavern, and the deceased was walking in the opposite direction. The deceased greeted them, and they passed each other. He also said that the accused ran away in Temeki's direction after shooting the deceased. The deceased tried to run but fell in front of one Bokang Mohlabula’s shop. He claimed that the deceased was fleeing from the accused, who was shooting at him. Although he couldn't say how many, he heard multiple gunshots. [4] During cross-examination, the witness was questioned about not seeing where the accused was on the way to the tavern. The witness responded that they entered the premises together, but when he entered the bar, he realized that the accused was not there. The witness stated that he did not see what happened between the accused and the deceased before hearing a gunshot. It was suggested to the witness that the deceased pulled out a gun and attempted to shoot at the accused, to which the witness replied that he did not know anything about that. It was also suggested that the deceased fired two initial shots, but the witness stated that he did not know anything about that either. The defence counsel suggested that the deceased produced a gun and fired two shots, and the accused overpowered the deceased, took the gun, and fired at the deceased. The witness responded that he did not know anything about that. The defence counsel then suggested that the accused shot the deceased in self-defence after the deceased tried to kill the accused, to which the witness, once again, stated that he did not know anything about that. The witness confirmed that he had not seen the gun in the possession of the accused before the shooting. [5] During the re-examination, the witness confirmed that he and the accused entered the gate of the premises together. However, when he was about to enter the tavern, he noticed that the accused was no longer with him. He mentioned that he saw the deceased walking in the opposite direction when they encountered him on their way to the tavern. The witness also stated that the relationship between the deceased and the accused was friendly and that the deceased greeted them as they passed each other. Additionally, he noted that the deceased was older than both of them. [6] The court asked the witness to clarify when he realized the accused had disappeared. The witness explained that they entered the premises together, but when he was about to enter the tavern, he noticed the accused was missing. The witness went back to look for the accused because the accused had the money to buy alcohol. As the witness reached the gate at the fencing wall, he heard a gunshot. After the first two gunshots, the witness saw the accused shooting at the deceased, who was about a meter away. The witness stated that the deceased was moving towards the accused, attempting to grab him. As the deceased tried to hold the accused, the accused continued shooting at the deceased. The deceased then crossed the road towards a truck and the accused fled. The witness stated that he did not witness the struggle between the accused and the deceased. He only saw the deceased moving towards the accused and the accused shooting at him. He stated that the accused could have fired approximately five to seven shots. **PW2- Tsepo Mohloai** [7] He stated that he is a subsistence farmer, a photographer, and an electrician. He testified that he has a shop or shack at Ha Majane, where he sells items such as popcorn and chicken feet. He went up to Form B. He knows the accused as they are from the same village. He stated that on the 06/03/2017, he was at his shop between 6:00 pm and 7:00 pm. He left his shop and went to a nearby shop. While he was in the shop, he heard three gunshots. When the gunshots stopped, he went outside the shop and saw a person who had been shot. It was the deceased, and they helped him. They took the deceased to the hospital. The deceased fell next to Bokang Mohlabula’s shop, which was some distance away from his shop. The deceased was unable to walk due to the injuries he sustained, and he observed that the deceased was intoxicated. The deceased could not speak and smelled of alcohol. [8] During cross-examination, the witness confirmed that he did not see the accused shooting the deceased. He also stated that he could not deny the accused’s claim that he took the gun from the deceased after the deceased shot at the accused and missed two times. When the defense suggested that the accused shot the deceased in self-defense to repel an attack, the witness responded that he did not know because he was not present at the time of the shooting. The defense further suggested that the deceased, who was intoxicated, was troublesome and wanted to shoot at the accused. However, the witness reiterated that he did not witness these events as he was not present. The witness maintained that he only heard three gunshots during the incident. **PW3 - Retired Detective Police Constable Ranthamane** [9] He stated that he retired from the service in 2023. He was stationed at Morija Police Post from 2015 to 2019. On 06/03/2017, he was on duty when the police received a report about a shooting incident at Ha Majane. Detective Police Constable Mohasoa attended the crime scene. On 10/03/2017, he was on duty when the accused and his lawyer arrived. The accused's lawyer handed the accused over to the police. He mentioned that he warned and cautioned the accused and sought his explanation. The accused confessed to shooting the deceased for no reason. His explanation was unsatisfactory, so the police charged him with murder. The accused said the gun was at his home, and his lawyer promised to bring it to the police. However, the accused's lawyer failed to bring the gun, leading the police to search the accused's house for the weapon, which was not found. The police also searched the accused's uncle's home but still did not find the gun. The cross-examination of this witness did not elicit anything significant. **PW4- Detective Police Constable Mohasoa** [10] During his testimony, a member of the Lesotho Mounted Police Service stated that he had been in service for seventeen years and was stationed at Morija Police Post from 2014 to 2019. On 06/03/2017, he received a report of a shooting at Ha Majane while on duty between 7:00 pm and 8:00 pm. Upon arrival at the crime scene next to Bokang Mohlabula’s shop, he observed a pool of blood on the ground and found three empty shells of 9mm calibre, two next to the pool of blood and the third some distance away. He then proceeded to Scott Hospital where he observed two gunshot wounds on the right side of the deceased's stomach and later transported the deceased to the mortuary. [11] During the cross-examination, the witness confirmed that the deceased sustained two gunshot wounds on the right side of the stomach and stated that he took the shells for ballistic examination. The defense suggested that the deceased had loaded the magazine with ammunition and that the accused had taken the gun from the deceased, but the witness replied that he did not know anything about that. The defense further suggested that the deceased sustained the injuries during a struggle over the gun, but the witness again replied that he did not know about that. The defense also suggested that the deceased had taken out the gun, tried to shoot at the accused, and missed two times, and the accused overpowered the deceased, took the gun, and shot the deceased. The witness replied that he did not know anything about that. The defense suggested that the accused shot the deceased in self-defense, which the witness did not deny. The defense counsel suggested to the witness that the accused shot the deceased while they were facing each other amid the fight. The witness responded that he did not know anything about that. The prosecution did not re-examine this witness. The court inquired whether the witness had examined the body while it was undressed. The witness responded that only the upper body was undressed. **PW5 - Thapelo Moeno** [12] He testified that he is a security guard. In 2017, he was employed by Bokang Mohlabula as a shopkeeper. He knows the accused because their villages are adjacent to each other. On 06/08/2017, he was at work off-loading stock from the truck when he heard several gunshots. He saw the accused running past the shop, holding a gun. Bokang Mohlabula shouted at the accused, asking if he was shooting at the deceased. The accused fired another shot when he passed Mamonkhi Mohloai’s shop. He saw that the deceased was covered with blood. The deceased was lying near the truck they were offloading goods from. The deceased was then taken to the hospital. The next day, he learned that the deceased had died. He stated that he heard about five gunshots, and they sounded very close to them. [13] During cross-examination, the defense questioned the witness about who fired the gun between the accused and the deceased. The witness stated that the accused fired the shots because the accused was holding the gun. The defense suggested that the deceased fired the first two shots at the accused, but the witness replied that he did not know about that. The defense proposed that, due to intoxication, the deceased attempted to kill the accused, but the accused overpowered him and took the gun. The witness replied that he did not know anything about that. The witness stated that he saw the accused holding the gun and the deceased falling near the truck. [14] The court asked the witness to explain his actions after hearing the first shot. The witness stated that he took cover in the truck, then heard a second shot and saw the accused passing by while holding a gun. When questioned about the deceased's whereabouts at that time, the witness mentioned that the deceased was chasing the accused and holding a bottle. The deceased fell next to the truck as the accused fled. The witness noted that the deceased fell because of being shot and heard more shots after that. The accused fled the scene still holding the gun. [15] The defense admitted the statements of crown witnesses and the post-mortem report _under section 273(1) of the Criminal Procedure and Evidence Act 1981. Section 273 (1)_ provides that an accused person or his legal 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. The identification statement of Mokhalinyane Sekhonyana was admitted. He stated that on the 15th of March 2017, at around 9:00 am, he identified the body of the deceased before a doctor could perform a post-mortem examination. The statement was marked exhibit “A”. The identification statement of Taelo Sekhonyana was also admitted. He stated that he identified the body of the deceased before the doctor could perform a post-mortem examination. This statement was marked exhibit “B”. [16] The post-mortem report shows that the death was due to multiple injuries with fatal blood loss consistent with gunshot wounds. The remarks are that the deceased was shot by another person on 06/03/2017 at Ha Majane. External Appearance refers to Form A, attached to the report. Form A is a diagram or a drawing of a human body. There is legend of wounds which are described as consistent with projectile (bullet wounds). It shows entry and exit wounds. 1 and 3 show entry wounds, while 2 and 4 show exit wounds. On the right hand there is an entry wound 0.5 cm (labelled 1) in diameter with peripheral abrasion wounds, perforates the forearm to connect with wound marked 2 in the anteriad aspect of the same forearm. It is an entry wound from behind the forearm and it exits on the front of the forearm. The wound on the front of the arm is labelled 2. The wound labelled 3 is a round wound 0.5 cm in diameter with peripheral abrasions. Wound penetrates into left pleural cavity with perforation of the lower lobe of the left lung and an associated rassed and extensive laceration of the right lobe of the liver. 0ne litre of blood present in the peritoneal cavity. The entry was the front part of the body on the left side of the body. 4 is an exit wound connected with 3 being the entry of the bullet. It is round wound 1 cm in diameter with protruding adipose tissue. It was marked exhibit “C”. Crown then closed its case. [17] The defence applied that the accused be discharged under _section 175(3) of the Criminal Procedure and Evidence Act 1981_. However, the court probed the defense counsel about the sufficiency of evidence presented by the prosecution to establish a prima facie case against the accused. Subsequently, the defense made the strategic decision to withdraw the motion. The accused chose not to testify and closed his case. **Submissions by the Crown** [18] Adv. Lepheana, the crown counsel, argued that the accused positioned himself at the scene of the crime by claiming that the deceased fired two shots at him and he miraculously disarmed the deceased. According to Adv. Lepheana, as soon as the accused disarmed the deceased, there was no longer an imminent threat, and the deceased was defenseless, posing no danger. Adv. Lepheana further argued that the accused did not deny shooting the deceased multiple times in self-defense. She pointed out that evidence indicated that after shooting the deceased, the accused continued to shoot in different places, suggesting an intention to kill. She also contended that if the defense of self-defense was to be believed, the accused used excessive force by continuing to shoot at the deceased after disarming him. She highlighted that the accused did not testify in his own defense despite the crown establishing a prima facie case. She argued that this failure strengthens the case against the accused, as the prima facie case becomes conclusive against the accused. She then mentioned that the accused provided an unchallenged explanation to PW3 that he shot the deceased for no reason at all. Therefore, she submitted that the court should give significant weight to that evidence. Adv. Lepheana then argued that the defense of self-defence seemed to be an afterthought. Finally, the crown counsel concluded that the only inference from the accused's conduct was that he left the tavern with the intention of attacking and killing the deceased whom he had just met on their way to the tavern. Therefore, he urged the court to find the accused guilty of murder. **Submissions by the Defence** [19] The defence counsel, Adv. Letsota, argued that the accused acted in self-defense because the deceased attacked him with a gun. According to the defense, the deceased fired two shots at the accused, but missed. The accused then overpowered the deceased, took the gun, and fired two shots back in self-defense. The defense counsel also argued that if the accused hadn't fired those shots, the accused would have died. Additionally, it was mentioned that the struggle over the gun took place near the tavern's wall and that the deceased could have still been holding his beer bottle after the struggle. Adv. Letsota further claimed that it was the deceased who chased the accused, thus justifying the accused's actions in self-defense. **The Law** [20] _Section 20. (1) of the Penal Code Act, 2010_ provides that: _No person shall be criminally responsible for the use of force in repelling an unlawful attack-_ 1. _Upon himself or herself or another person if-_ 1. _It was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ 2. _The degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances._ 2. _Upon his or her property or the property of another provided that the means he or she chooses and the degree of force he or she uses in so doing are reasonable in the circumstances._ [21] For the defense of self-defense to be successful, three conditions must be met. First, there must be an unlawful attack on the accused. Second, in the circumstances at the time, it was not reasonable for the accused to retreat. Lastly, the degree of force used by the accused must have been reasonably necessary to prevent the attack. I believe these are the requirements outlined in _section 20 (1) of the Penal Code Act_. [22] Be that as it may the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex**[1]**,_ **where **Ramodibedi P** had this to say: At this stage I should like to repeat what l said in the Court of Appeal of Botswana in the case of **_Bobe v The State_**[2]**,** (**Grosskopf JA** and **Lord Coulsfield JA** concurring) remarked: _“Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility, then the accused is entitled to an acquittal.**See S v Ntuli**[3]**.**_ _As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker._ 2. _The means he used in defending himself were not excessive in relation to the danger._ 3. _And the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.**See R V Attwood**[4]**.**_ **Analysis and Discussion** [23]**** Considering the principles of self-defense mentioned in the cases referred to above, the key question for this court is whether the deceased attacked the accused, giving the accused the right to defend himself. I want to begin by examining the evidence presented by PW1. This witness mentioned that he and the accused had agreed to go to the tavern to buy alcohol. They went to the tavern together. On the way, they encountered the deceased, who was walking in the opposite direction. They both entered the tavern premises, but once inside, PW1 realized that the accused was not there. He went to the entrance to see where the accused had gone and then heard gunshots. He then saw the accused shooting at the deceased. The deceased ran across the road and fell in front of Bokang Mohlabula’s shop. [24]**PW5 -** Thapelo Moeno testified that while he was on the truck off-loading goods, he heard gunshots. He saw the accused running with a gun in his hand. The accused fired a shot as he passed and then fired another shot near Mohloai’s shop. Moeno also saw the injured victim, who had fallen next to the truck. [25]**** The accused testified that the deceased produced a gun and fired two shots at him but missed. The accused then overpowered the deceased, took the gun from him, and fired two shots at him in self-defense. On the other hand, the accused’s version is that when the deceased produced a gun, a struggle between himself and the accused over the gun ensued, and during the struggle, the deceased was shot. The accused stated that he shot the deceased after disarming the deceased of the gun and then shot the deceased twice in self-defense. [26]**** After reviewing the post-mortem report, it is evident that the deceased suffered a gunshot wound on the right forearm. According to Form A (diagram), the bullet entered from behind and exited from the front of the right forearm. This indicates that the shooter was positioned behind the deceased when the shot was fired. Witness PW1 testified to observing the accused shooting at the deceased, while PW5 reported hearing gunshots and seeing the accused holding a gun, firing multiple shots. The evidence suggests that the accused shot the deceased from behind, resulting in the bullet entering the back of the right arm and exiting from the front. Given these circumstances, it is not reasonably possible that the accused's claim of a struggle over the gun is true. If the accused's version were accurate, the deceased could not have sustained a gunshot wound on the back of his forearm. Therefore, the most logical conclusion is that the accused shot the deceased from behind, leading to the entry of the bullet at the back of the right arm. [27] The accused has given two different versions of what happened. In one version, he claimed that the deceased fired two shots at him and missed. He then overpowered the deceased, took the gun, and shot him in self-defense. In the other version, the accused stated that the deceased fired two shots at him, and during the struggle for the gun, the deceased was shot. [28] I would like to consider the evidence of PW1. He stated that after the first two gunshots, he saw the accused shooting at the deceased, who was about a meter away. The deceased moved towards the accused to stop him, and the accused continued to shoot. The evidence of PW1 shows that the accused was the one holding the gun and shooting at the deceased, and the deceased moved towards the accused to try to stop him. I do not find, in any manner, that the deceased was the aggressor at that moment. [29] The deceased also sustained a gunshot wound (entry) on the left pleural cavity, and the bullet caused extensive laceration of the right lobe of the liver and exited on the right side of the body. The evidence of PW1 and PW5 point to the accused as the attacker. I say this because PW1 witnessed the shooting of the deceased by the accused, and PW5 saw the accused armed with the gun, which he continued to fire. PW5 saw the deceased behind the accused, and shortly thereafter collapsing. The deceased collapsed because he had been shot at by the accused. For this reason, the accused’s version that he acted in self-defence is rejected. The accused attacked the deceased from behind. The gunshot wound on the right arm suggests that the deceased was shot from behind. The accused did not provide a reasonable explanation for abruptly leaving the tavern, despite their prior agreement to drink together. It's important to note that PW1 and the accused encountered the deceased on their way to the tavern. The deceased greeted them and continued in the opposite direction. Upon reaching the tavern, the accused abruptly left PW1 without an explanation. When PW1 went to look for the accused, he witnessed him shooting at the deceased, whom they had just seen on their way to the tavern. It appears that the accused seized an opportunity to attack the deceased at that moment, which is why he sneaked away from PW1. The accused did not provide a reason for leaving the tavern so suddenly, leading to the conclusion that he did so to carry out the attack. This is why PW1 immediately saw the accused shooting at the deceased. [30] The accused alleged that the deceased, who was reportedly intoxicated, was causing trouble, and even attempted to shoot the accused, missing his target. However, the court questioned the whereabouts of the initial encounter between the accused and the deceased. It was established that their only interaction occurred briefly on the way to the tavern, where the deceased exchanged greetings and continued his way. Consequently, I find the accused's claim regarding the deceased's drunken behaviour to be untruthful. Furthermore, I have determined that the accused followed the deceased from the tavern to attack him. The accused’s claim that the deceased was troublesome is fabricated to justify the attack, as there was no previous confrontation between the accused and the deceased that evening. [31] Having said that, I would like to address the issue of the accused not taking the witness stand. Adv. Letsota for the accused stated that the accused has a constitutional right to remain silent. When the defence counsel moved an application for the discharge of the accused, the court inquired from the counsel whether the crown had not established a prima face case against the accused. He correctly admitted that the crown had made a prima facie case against the accused. Consequently, he abandoned the application. However, the accused chose not to take the witness stand in his own defence. I must state from the onset that the accused has a constitutional right to give evidence in his defence if he so wishes. In exercising that right, however, the accused where the crown has established a prima facie case, takes a risk that it might turn out to be sufficient proof. See **Osman and Another v Attorney General Transvaal**[5]**, **where it was held. “… _in an adversarial system, once the prosecution had produced evidence sufficient to establish a prima facie case, an accused who failed to produce evidence to rebut that case was at risk. The failure to testify did not relieve the prosecution of its duty, to prove guilt beyond reasonable doubt. An accused however, always runs the risk that in the absence of any rebuttal, the prosecution’s case might be sufficient to prove the elements of the offence”._ [32] The Court of Appeal of Botswana in holding that the constitutional right to silence does not preclude the presiding officer from considering as part of the overall assessment of the case, the accused’s silence in the face of a prima facie case established by the prosecution. In **_S v Sidziya and Others_**** _**[6]**_****, Naicly A.J** put it this way: “ _The right means no more than that an accused person has a right of election whether or not to say anything during the plea proceedings or during the stage when he may testify in his defence. The exercise of right like any other involves the appreciation of the risk which may confront any person who has to make an election in as much as skilful cross-examination could present obvious dangers to an accused, should he elect to testify, there is no sound basis for reasoning that, if he elects to remain silent no inference can be drawn against him”._ [33] In **_Murray v D.P.P,_****_**[7]**_****__****Lord Slynn** held that if the aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation, common sense allows the drawing of an inference that there is no explanation and the accused is guilty. See also: **_Lerato Mahanye and Another v Rex_**** _**[8]**_****.** [34] I have assessed that the prosecution has established a prima facie case against the accused. The accused's decision not to present any evidence or call any witnesses further supports the prosecution's case. Consequently, the accused cannot request the court to believe his version of events when the prosecution has already made a prima facie case against him. [35] This court needs to determine whether the crown has proven its case against the accused beyond a reasonable doubt. Murder involves the unlawful and intentional killing of another human being. The intention required can be direct or eventual. Direct intention to kill is easier to discern. In my opinion, this case involves direct intention to kill. I have considered the evidence of Pw1, who witnessed the accused shooting the deceased. It is important to note the following details: 1. PW1 saw the accused shooting the deceased, who was approximately a meter away from him. The deceased tried to approach the accused to stop the shooting. It should be noted that the bullet entered the back of the forearm and exited through the front of the right arm. Based on this, it is concluded that the accused shot the deceased from behind. As a result, it cannot be claimed that the deceased was attacking the accused when he was shot in the back of the right hand. This suggests that the accused attacked the deceased from behind, and his claim of shooting in self-defense is false. PW1 described how the deceased attempted to grab the accused, who continued shooting. This action by the deceased indicates his attempt to defend himself from the accused's attack. Additionally, PW5 witnessed the accused holding a gun after hearing gunshots. He saw the deceased behind the accused and falling next to the truck. He confirmed that the deceased fell because he had been shot. The accused fired one shot as he passed PW5 and another shot as he passed Mohlai’s shop. The accused cannot claim self-defense in these circumstances. The accused did not explain why he left the tavern suddenly without letting PW1 know where he was going. It's important to note that PW1 and the accused encountered the deceased on their way to the tavern. It seems inevitable that the accused left the tavern suddenly to attack the deceased. The accused's claim that the deceased was troublesome and shot at him is fabricated, as there is no history of the deceased and the accused being together. **Conclusion** [36] Having said this, I conclude that the prosecution has proven its case beyond a reasonable doubt, that the accused unlawfully killed the deceased. Therefore, the accused is found guilty of murder with direct intent. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [37]_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. [38] In the case of **_Lefaso V Rex_**[9], **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_ ”. [39] In **_Letuka v Rex_**[10], **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[11]. [40] 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_**[12] and **_S v Petrus_**[13]. [41] 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_**[14], **_Mohlalisi and Others_**[15]), 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_**[16]). [42] 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**[17]**”._ [43]__ I conclude that there are mitigating circumstances in favour of the accused, to wit: the accused had been drinking alcohol on the night of the incident; Additionally, the accused was twenty-four years old at the time of the offense, which means he was considered a youth. I also consider that the accused is illiterate and comes from a rural background. [44] 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_**[18], **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. [45] During the mitigation hearing, the defense counsel, Adv. Letsota, emphasized that the accused is a single parent caring for a three-year-old child, as the accused’s wife has since left him. The accused has undergone multiple medical procedures and was a young individual when the offense was committed. It was also mentioned that the accused had been drinking alcohol on the day of the incident. Additionally, the defense highlighted that the accused has no prior criminal record and voluntarily surrendered to the authorities after the offense. Moreover, it was emphasized that the accused consistently attended all court appearances as required. [46] During the submission of aggravating the sentence, Adv. Lepheana argued that the court needs to recognize the severity of murder as a crime and prioritize the protection of society by imposing strict punishments on those found guilty of committing it. She emphasized that this case involved a particularly brutal murder, depriving the victim of their life and severing their ties with their family. She highlighted the immeasurable loss experienced by the deceased's dependents. According to her, imposing a harsh sentence is crucial to instil confidence in the community regarding the effectiveness of the criminal justice system. [47] When determining an appropriate sentence for the accused, I carefully considered his personal circumstances and the impact on society. I strived to ensure that the sentence would be fair and just for all parties involved. It's important to note that the accused has no prior criminal record, indicating that the accused is not prone to offending against the law. Additionally, at the time of the offense, the accused was a twenty-year-old youth, still in the process of maturing. Furthermore, the accused is a single parent responsible for raising a three-year-old child. It's worth considering that alcohol was involved at the time of the offense. However, it's notable that the accused consistently attended court appearances, which demonstrates respect for the legal system. It's crucial to acknowledge that this incident took place in 2017, meaning that it has had a significant impact on the accused for the past seven years, taking a toll on him emotionally and psychologically. This prolonged effect can be seen as a form of punishment. [48] In considering the aggravation of the sentence, the court has taken into account the gravity of the crime of murder. Life is a precious gift, and no one has the right to unlawfully take away the life of another human being. The court firmly upholds the sanctity of human life and is deeply concerned by the alarming increase in gun-related murder cases in Lesotho in recent years. It is imperative for the court to impose stringent sentences in murder cases to send a strong message to potential offenders that senseless killings will not be tolerated by the judicial system. Harsh sentences are essential to restore public confidence in the rule of law and the criminal justice system. Moreover, the court has considered that the use of a gun as the murder weapon makes this case particularly grave, as guns are inherently dangerous weapons. The irreversible loss suffered by the family of the deceased has also been considered. [49] The fact that the accused failed to surrender the murder weapon to the police raises concerns about his cooperation with the authorities and the possibility of further violent actions using the same weapon. The accused's self-surrender to the police is noted as a sign of remorse; however, the failure to disclose the whereabouts of the murder weapon is troubling. The accused has not fully cooperated with law enforcement, as he did not disclose the location of the murder weapon despite being the last known person in possession of it. [50] I have concluded that the most appropriate sentence that will fit this crime, the offender, and the interests of society in these circumstances is the following. **Order** 1. The accused is sentenced to twenty-seven (27) years imprisonment. My Assessors Agree. **_____________________** **T.J. MOKOKO** **JUDGE** **FOR CROWN:** ADV. T. LEPHEANA **FOR ACCUSED:** ADV. M. LETSOTA * * * [1] LAC (2009 – 2010) at Page 7 [2] [2006] 1 BLR 254 (CA) at 257 [3] 1975 (1) SA 429 (A) [4] 1946 AD 331. [5] 1998 (4) SA 1224 [6] _1995 (12) BLLR 1626 at 1648_ [7] _1994 WLR (HL)_ [8] _LLRLB 1999- 2005 105 at P. 126_ [9] LAC 1990- 1994 44 [10] LAC 1995- 1999 405 [11] LAC 1995-1999 at P 405 [12] 1980 (3) SA 825 (A) [13] 1969 (4) SA 85 (A) [14] 1992 (1) SACR 628 (C) [15] LAC (1980 – 1984) 110 at 117 [16] 1990 (1) SACR 426 (A) [17] LAC 1995 – 1999 at P 423 [18] LAC 2007- 2008 245 #### __Related documents ▲ To the top >