Rex V Lemohang Mosolo (CRI/T/0109/2022) [2024] LSHC 88 (28 May 2024)

# Rex V Lemohang Mosolo (CRI/T/0109/2022) [2024] LSHC 88 (28 May 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/88/eng@2024-05-28) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/88/eng@2024-05-28) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/88/eng@2024-05-28) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/88/eng@2024-05-28) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Lemohang Mosolo \(CRI/T/0109/2022\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/88/eng@2024-05-28) [ Download PDF (413.0 KB) ](/akn/ls/judgment/lshc/2024/88/eng@2024-05-28/source) Report a problem __ * Share * [ Download PDF (413.0 KB) ](/akn/ls/judgment/lshc/2024/88/eng@2024-05-28/source) * * * * * Report a problem __ ##### Rex V Lemohang Mosolo (CRI/T/0109/2022) [2024] LSHC 88 (28 May 2024) Copy citation * __Document detail * __Related documents Citation Rex V Lemohang Mosolo (CRI/T/0109/2022) [2024] LSHC 88 (28 May 2024) Copy Media Neutral Citation [2024] LSHC 88 Copy Hearing date 20 May 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0109/2022 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 28 May 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Criminal law](/taxonomy/case-indexes/case-indexes-commercial-criminal-law) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held at Maseru** **CRI/T/0109/2022** In the matter between **REX CROWN** AND **LEMOHANG MOSOLO ACCUSED** _Neutral Citation_ : Rex vs Lemohang Mosolo [2024] LSHC 88 CRIM (23rd May 2024) **CORAM :** T.J. MOKOKO J **DATE HEARD :** 20 MAY 2024 **DATE DELIVERED :** 23 MAY 2024 **_SUMMARY_** _Murder- The defence admitting all the crown witnesses’ statements in terms of section 273 (1) of Criminal Procedure and Evidence Act 1981, and the post-mortem report in terms of section 223 (7) of Criminal Procedure and Evidence Act 1981. Accused pleaded self-defence- Version of accused not reasonably possibly true- The defence of self-defence rejected. Accused convicted of murder._ **_ANNOTATIONS_** __Cited Cases__ 1. _Bobe v The State [2006] 1 BLR 254_ 2. _Lefaso v Rex LAC 1990- 1994 44_ 3. _Letuka v Rex LAC 1995- 1999_ 4. _Linake v Rex LAC (2009 – 2010)_ 5. _Mohlalisi and Others LAC (1980 – 1984) 110_ 6. _Rex v Ranthithi and Another_ _LAC 2007- 2008 245_ 7. _R v Attwood 1946 AD 331_ 8. _R v Difford 1939 AD 370_ 9. _R v M 1946 AD 1023_ 10. _R v Rajivee Soni CC 29/14P_ 11. _Scout v Rex_ _LAC 2009 – 2010 279_ 12. _S v Kruger 2012 (1) SACR 369 (SCA)_ 13. _S v Mafela 1980 (3) SA 825 (A)_ 14. _S v Mhlakaza and Another 1997 (1) SACR 515 (SCA)_ 15. _S v Ngobeni 1992 (1) SACR 628 (C)_ 16. _S v Ntuli 1975 (1) SA 429 (A)_ 17. _S v Petrus 1969 (4) SA 85 (A)_ 18. _S v Prins 1990 (1) SACR 426 (A)_ 19. _S v Scott-Crossley 2008 (1) SACR 223 (SCA)_ 20. _S v Zinn 1969 (2) SA 537 (A)_ __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 was charged with contravention of _section 40 (1) of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ _read with section 26_ thereof. In that upon or about 07 August 2019 and at or near Anone in the district of Mohale’s Hoek, the accused did perform an unlawful act or omission with the intention of causing the death of Retselisitsoe Mosolo, the said accused did commit the offence of the murder of the deceased, such death resulting from his act or omission, the accused did thereby contravene the provisions of the code as aforesaid. [2] Accused pleaded not guilty to the charge and the crown did not accept the plea of the accused. The crown counsel stood to inform the court that the defence admitted all the crown witnesses’ statements as well as the post-mortem report. The defence confirmed this position. **CROWN’S CASE** [3] The statements were admitted in terms of _section 273 (1) of Criminal Procedure and Evidence Act 1981_ , (Act). _Section 273 (1) of the Act_ reads as follows: “ _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.”_ [4] The following crown witnesses’ statements were admitted. 1\. Statement of Ntloko Mokhesi, marked exhibit “A”. 2\. Statement of Thabo Masokela, marked exhibit “B”. 3\. Statement of ‘Matlotlisang Mosolo, marked exhibit “C”. 4\. Statement of Marake Mosolo, marked exhibit “D”. 5\. Identifying statement of Marake Mosolo, marked exhibit “E”. 6\. Report of D/L/Sgt Mokuoane, marked exhibit “F”. [5] The post-mortem report was admitted in terms of _section 223 (7) of the Criminal Procedure and Evidence Act 1981. Section 223 (7) of the Act_ provides that: “ _In any criminal proceedings in which any facts ascertained by a duly qualified medical practitioner in regard to any injury or state of mind or condition of body of a person or his opinion as to the cause of death of a person, or any facts ascertained by a veterinary practitioner as to any injury or his opinion as to the cause of death to any animal may be proved by a written report signed and dated by such medical or veterinary practitioner and that report shall be prima facie evidence of the facts recorded in it”._ The post-mortem report was admitted, and it was marked exhibit “G”. **Statement of Thabo Masokela** [6] He stated that on the 07 August 2019, he was at the bar of one ‘Malineo Tjakotsa, drinking some Sesotho beer. He was in the company of Lemohang Mosolo (Accused), and his brother, Retselisitsoe Mosolo (Deceased), Setlokoane Matete, Molahlehi Matete, and other people. Around 2000 hours, he left for his home in the company of the people he mentioned above. When they were above the gate of one Jeremiah Nkaki, he played stick fight game with Lemohang Mosolo (accused), and Retselisitsoe Mosolo (Deceased) was with them. He hit the accused on the head. Retselisitsoe Mosolo (deceased) stopped the stick fight game and pulled the accused away, and they left. He went home to sleep. In the morning, he learned from his neighbour that Retselisitsoe Mosolo was found dead along the road. He went to the crime scene. He found the accused there. The accused explained that the deceased pulled him in a rough manner and chocked him with the blanket, that is when he took out a knife stabbed the deceased with it, left the deceased there and went home, and reported the incident to one ‘Matlotlisang Mosolo. He stated that he was surprised by the tragic incident, because when they parted ways, the accused and the deceased were not in a fighting mood. He stated that the deceased was taken to the mortuary, while the accused was arrested. **Statement of ‘Matlotlisang Mosolo** [7] She stated that on the 07 August 2019, between 23:00 hours and 00:00 hours, the accused arrived at her home. The accused reported that he met one Thabo Mosokela along the way, and that Thabo assaulted him. That after Thabo had assaulted him, his brother, (the deceased) emerged. The accused reported to the deceased that Thabo Masokela had hit him. The deceased said Thabo Masokela should hit the accused again. Accused said that it was at that moment that Retselisitsoe Mosolo chocked the accused. The accused then took out a knife and stabbed the deceased with it. The deceased asked the accused what he stabbed him with. The accused got up and came to report to Matlotlisang Mosolo. Matlotlisang Mosolo went to “Maretsepile Saleoe ‘s house to report to her what the accused told her. **Statement of Marake Mosolo** [8] He stated that on the 08 August 2019, accused came to his home and reported that he stabbed the deceased with a knife, after the deceased had separated the accused and Thabo Mosokela, who had hit the accused with the stick. He stated that the accused told him that the deceased pulled him away roughly, instructing him that they should go home, chocking him with the blanket. He stated that the accused said it was at that moment that he stabbed the deceased with the knife. When the deceased fell, he asked accused why he stabbed him. The accused then ran away and left the deceased lying there prostate. The accused went to sleep after reporting the incident to his sister. They went to the crime scene and found the deceased lying there dead. He informed the chief, who then reported the incident to the police. The deceased was taken to the mortuary and the accused was arrested. **Identifying Statement of Marake Mosolo** [9] He stated that on 14 August 2019, he was at Government mortuary, where he identified the body of the deceased before a post-mortem examination was conducted. **Report of D/L/Sgt Mokuoane** [10] He stated that on the 08 August 2019, he proceeded to Anone with PW Ramokoena and PC Mapepesa, whereupon he met the accused who was at the crime scene. He introduced himself to him and cautioned him. He asked for the explanation. He gave the accused a charge of murder and arrested him. He searched the accused and found a brown okapi knife. He seized the knife and filled LMPS 12. Upon examination of the body, he noticed a single open wound on the right chest, with blood oozing from the chest. The deceased was conveyed to the mortuary. **Post-Mortem Report** [11] The post-mortem report showed that death was due to internal haemorrhage secondary to chest stab wound. Remarks on the external appearance- brown in complexion, body of the deceased lying on the examination mortuary trolly, with an open wound on the right side of the chest- 2 to 3 cm long. Age of deceased- apparent 45 years old. **DEFENSE’S CASE** [12] Crown closed its case. The defence then led the evidence of Lemohang Mosolo. He testified that he is forty (40) years old, unemployed and that he went up to Standard 3. He is a shepherd. He stated that on the 07 August 2019, he was at ‘Malineo’s place drinking alcohol. He was in the company of the deceased and other people. Later, they decided to go home. On the way just above one Jeremiah’s house, they met one Thabo Masokela. The deceased remained behind as he was relieving himself, and the accused walked further on. Thabo hit the accused with the stick. Thabo was one of the people who were at ‘Malineo’s place but had left earlier than the accused and his company. The deceased caught up with the accused and the accused reported to the deceased that Thabo Masokela had hit him with the stick. The deceased said they should go home. They indeed left for home, and on the way, the accused told the deceased that he thought he would inquire as to why Thabo hit him, so that the deceased could ask Thabo why he hit him. The deceased said the accused deserved it. The accused said they should leave the subject and go home. On the way the deceased held the accused by the blanket and choked him, and the accused fell. [13] The deceased was on top of the accused, while he choked the accused. The accused reached out for his back pocket, took out a knife opened it with his left hand, and stabbed the deceased with it. After the stabbing the deceased jumped back. The deceased was quite a giant or hefty person. The accused overpowered the deceased. He got up and ran away. The accused stated that he could not push the deceased away, because he was such a hefty man. The accused had no idea whatsoever, why the deceased choked him. The accused demonstrated to the court how the deceased held him. He showed that the deceased held him by his blanket around the chest area just below the neck. He showed the court that he used his right hand to get the knife from his back pocket, and with the assistance of the left hand, he opened the knife, and stabbed the deceased using his right hand. He showed that the left hand was in the blanket he was wearing. He stabbed the deceased once. He stabbed the deceased because he was apprehensive that the deceased was killing him, and he felt very weak. He stated that there was no animosity between the deceased and himself. When he left the deceased, the deceased was standing. From the place he left the deceased, he could walk for about thirty minutes to get to his home. He reported the incident to ‘Matlotlisang Mosolo, who in turn advised him to report the matter to Ntloko Mokhesi. Ntloko Mokhesi told the accused to go and sleep as they would attend to the matter in the morning. ‘Matlotlisang Mosolo and the accused reported the incident to one Maretsepile Saleoe. The accused went home to sleep. [14] Early in the morning the accused went to Marake Mosolo and reported to him what happened the previous night. Both went to the deceased’s house, and they did not find him. Marake Mosolo suggested that they should search for the deceased along the road. The accused found the deceased at Lekhalong, and people had already gathered at the crime scene. The police came and he was arrested, while the deceased was taken to the mortuary. The accused stated he started drinking at around 16:00 hours, and that he left ‘Malineo’s bar at around 20:00 hours. He said when left the bar, he was moderately drunk and so was Thabo Masokelo. He stated that he had no idea why Thabo Mosokelo hit him with a stick. The accused testified that there was no conflict between the deceased and himself, and that whenever necessary the deceased would proffer some advice to him. [15] Under cross-examination, the accused stated that he was angry with Thabo Masokelo for hitting him with the stick. It was suggested to the accused that he was angry at the deceased person for failing to confront Thabo as to why he assaulted the accused. The accused said that he was not angry anymore, that is why he said they should go home. It was further suggested to the accused that he brought the subject about the deceased’s conduct for the second time, because he was still angry at the deceased. The accused said that he wanted them to discuss that subject. The accused denied the suggestion that he assaulted the deceased because he was angry at him. The accused stated in cross-examination that the deceased choked him for no reason at all. [16] The court asked the accused if he revisited the issue regarding the deceased’s statement, that it served him right that Thabo hit him. The accused stated he raised that issue because he was still angry at the deceased for having said that. The court asked the accused to demonstrate to the court, how he reached for the knife in the back pocket, while the deceased was seated on his stomach. He made the demonstration and of significance was that he moved his waist upwards so that his right hand could access the back pocket. [17] Adv. Thaba, the crown counsel submitted that it is a matter of common cause that the accused was drunk, but not so much that he could not appreciate the consequences of his actions. He submitted that at all material times, the accused was drinking Sesotho beer with the deceased. He was assaulted by Thabo. However, the accused did not take it lightly that the deceased did not take his corner against Thabo, but instead said the accused deserved it. It is for this reason that along the way home the accused raised this issue again. He submitted this is the reason why the accused then attacked the deceased, because the deceased did not show any concern that Thabo had hit the accused. Adv. Thaba submitted further that the accused said that there was no argument or misunderstanding between himself and the deceased, therefore there was no reason that could have motivated the deceased to attack the accused, as claimed by the accused. The crown submitted that it was surprising that out of nothing, the deceased could attack the accused. The accused did not even say that he asked the deceased why he attacked him. The crown therefore submitted that the accused’s version that he was attacked by the deceased is a fabrication. [18] Adv. Thaba submitted that it is not reasonably possibly true that the accused, with the deceased seated on his stomach, could have an opportunity to insert his hand in his back pocket, take it out, open it and then stab the deceased with it, especially when considering the physical stature of the deceased, as described by the accused (Tall and hefty). [19] The crown submitted further that the accused having noticed that he stabbed the accused with a knife on the delicate part of the body, he did find means to ensure that the deceased got help. He left the deceased who was injured out there along the road for the whole night, while the accused went to his home to sleep. [20] Adv. Thaba submitted that the accused exceeded the bounds of self-defence by using a lethal weapon on the sensitive part of the body, coupled with the fact that the accused left the deceased where the stabbing took place. It is submitted that the accused should have used the same energy he utilised to get the knife, to push the deceased away. The crown submitted that the accused is not a credible witness because in the admitted statement of Thabo Masokela, the accused and Thabo Masokela agreed to play a stick fight game. While giving evidence the accused said Thabo Masokela, attacked him for no apparent reason. Lastly the crown submitted that the accused attacked the deceased because the deceased had failed to comfort him, after Thabo had hit him with a stick during the stick fight game. [21] On the other hand, Adv. Makhera, the defence counsel submitted that it was demonstrated to the court that the accused is a man of tiny stature, therefore was fragile. It was submitted further on behalf of the accused that the accused is a man of limited intelligence, as educationally went up to standard 3. That the accused, the deceased and Thabo Masokela had taken considerable amount of alcohol for about four (4) hours. It was submitted that after this tragic incident the accused did not run away, when there was an opportunity for the accused to run away. Not only did the accused report the incident, but he kept the murder weapon until the following day. It was submitted further that after the accused had freed himself from the deceased, he ran away and left the deceased standing there. The defence submitted that none of the people that the accused reported the incident to, suggested that a search should be mounted, despite being told that the deceased had been stabbed. However, the accused did not realise that he had inflicted a fatal injury on the deceased. It was submitted by the defence that the accused acted in self-defence, as the deceased had tripped the accused to the ground and choked him while on the ground, therefore the accused did not exceed the bounds of self-defence. [22] The defence submitted that the crown stated that the accused wanted to revenge against the deceased, but the crown did not take this issue further than that, as the only evidence that is available is that of the accused, therefore the accused should be given a benefit of a doubt. [23] Adv. Makhera on the defence of self-defence referred the court to the case of **_R v Difford**[1]** and R v M**[2]**_**. He submitted that the evidence of the accused is likely true, and no contrary version has been placed before court. **THE LAW** [24] _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._ [25] For the defence of self-defence to succeed, firstly, there must be an unlawful attack upon the accused, secondly, in the prevailing circumstances, it was not reasonable for the accused to retreat, and lastly the degree of force used by the accused was reasonably necessary to avert the attack. I think this is what the provisions of _section 20 (1) of the Penal Code Act_ entail. [26] Be that as it may the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex**[3]**,_ **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_**[4]**,** (**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**[5]**.**_ _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**[6]**.**_ **ANALYSIS AND DISCUSSION** [27] Having studied the principles enunciated in the cases referred to above, the relevant issue for determination in this matter is whether the deceased attacked the accused, thus the accused entitled to defend himself. From the onset I wish to deal with the evidence of the accused. He testified that after he asked the deceased why he failed to intervene between himself and Thabo, he said they should go home. Accused admitted that he was angry that Thabo hit him with the stick and that the deceased seemed not to care about that situation. On the way home he asked the deceased why he failed to make the necessary inquiries from Thabo as to why he hit him. The accused further admitted that he was angry that the deceased failed to comfort him after Thabo had hit him, rather the deceased said, he deserved it. Accused was adamant under cross-examination that the deceased attacked him for no apparent reason. He said he did not ask the deceased why he was attacking him. The accused described how the deceased handled him, and that the deceased tripped him to the ground, and that while on the ground the deceased choked him. To save his life he took a knife out of his back pocket and stabbed the deceased on the right chest. The accused therefore submitted that he acted in self-defence. [28] In his admitted statement, Marake Mosolo stated that the accused told him that he stabbed the deceased with the knife, after the deceased had separated both the accused and Thabo Masokela, who had hit the accused with the stick. He stated that the accused said the deceased pulled him roughly, and said they should go home, and choked him with the blanket. The accused then stabbed the deceased with the knife, and when the deceased fell, he asked the accused why he stabbed him. The accused then ran away. [29] According to the admitted statement of Marake Mosolo, the accused did not say that the deceased tripped him to the ground and that while on the ground the deceased choked him, necessitating him to defend himself. According to this piece of evidence, the accused stabbed the deceased while the deceased was standing, that is why after the stabbing the accused said the deceased fell. In his testimony the accused said after stabbing the deceased with the knife the deceased jumped back and stood up. That was when the accused got up, ran away leaving the deceased standing there. Assuming for a minute that the accused’s version is correct, would the deceased be able to stand up and remain standing as claimed by the accused. I doubt that the deceased would have the strength to stand and remain standing. I wish to refer to the post-mortem report that shows that the deceased sustained 2 – 3 cm long wound on the right chest. I wonder if the deceased would manage to stand up and remain standing having sustained such a serious injury. It is probable that the accused stabbed the accused while the deceased was standing. It is for this reason that the accused told Marake Mosolo that after he stabbed the deceased with the knife the deceased fell, and he ran away. I find the accused’s version that the deceased tripped him to the ground and choked him on the ground false. I find it probable that the accused stabbed the deceased while the deceased was standing, and the deceased fell after being stabbed on the chest. The accused left the deceased on the ground at the crime scene. It is not reasonably possibly true that the accused stabbed the deceased while the deceased was sitting on his stomach, and that after inflicting the wound on the deceased, the deceased got up and remained standing. I find the accused’s version in this regard as false. [30] The accused testified that while on the ground, the deceased sat on his stomach and choked him with the blanket. The accused told the court that the deceased was a tall and hefty man. I want to believe that if the deceased sat on the accused, the weight on the accused’s stomach was quite substantial. I wonder how the accused would be able to put his right hand in his back pocket, take out a knife, open it with the left hand that was under the blanked, then put it into his right hand, and then stab the deceased with it. I hold a strong view that this is not reasonably possibly true, considering that the accused is a man of slim or tiny stature. This court is further cognisant of the fact that the accused has admitted the evidence of Marake Mosolo to the effect that the deceased fell after being stabbed by the accused. I hold a strong view that the accused was not happy with the deceased’s conduct, namely that the deceased said the hitting by Thabo on the head was well deserved, instead of entertaining the accused’s complaint. The accused then took revenge on the deceased who had not assaulted him. The accused has testified that he did not know why the deceased attacked him. He said the deceased attacked him for no reason. I hold that the accused does not know why the deceased attacked him, because it is false that the deceased attacked the accused as claimed by the accused. This court finds it probable that the deceased was aware that the accused and Thabo had engaged in a stick fight game. After being defeated by Thabo, the accused started complaining. However, the deceased heard none of that, pulled the accused away and said they should go home. It is worth mentioning that the deceased further said that the accused deserved it. This statement did not sit well with the accused. It is for this reason that along the way accused raised the subject about Thabo again. It is at this point that the accused attacked the deceased because the accused was not happy that the deceased said he deserved it. [31] I want to deal with the version of the accused that Thabo attacked him with a stick for no apparent reason. Thabo Masokela in his admitted statement stated that on the way home, he agreed with the accused to play stick fight game. It was during the game that Thabo Masokela hit the accused with the stick. Be that as it may, the accused gives the court impression that Thabo Masokela attacked him for no cause. I want to believe that since the deceased was around when the accused and Thabo played the stick fight, he could not entertain any complaints from the accused, because he was aware that Thabo Masokela had not attacked his brother, rather his brother, (accused) lost the game. That is why he pulled the accused away and said they should go home. However, the accused admitted under cross-examination that he was angry with the deceased. I therefore find that the accused had a motive to attack the deceased in the manner that he did. [32] Coming to the evidence of Matlotlisang Mosolo. She stated that the accused told him that Thabo Masokelo attacked him, and the deceased came along, and he reported to the deceased that Thabo hit him. The deceased said Thabo should hit him again. I hold a strong view that the deceased was aware that the accused had lost the stick fight game, and he (the deceased) impressed upon the accused that they should go home. I find that it was during that time that the accused stabbed the deceased with the knife. I reject the version of the accused that the deceased attacked the accused as claimed by the accused. [33] The accused in his testimony stated that he stabbed the deceased at Lekhalong. He estimated that it could take him about 30 minutes’ walk from Lekhalong to his home. There is evidence that the accused reported this incident to several people. It is not in dispute that the accused was aware that he had inflicted an injury on the deceased. Having made the reports to these people, the accused went to his home to sleep. He did not ask for help to search for the accused, so that he could be taken for medical treatment. He said he did not go back to search for the accused because he feared the deceased. However, the court is not told that at least the accused asked anyone for assistance in search for the deceased. The deceased spent the whole night out there lying by the roadside. This court is wondering how the deceased slept that night, knowing that he had inflicted an injury on the deceased, but did not make means to ensure that the deceased got some assistance. This court should not be misunderstood to be saying the deceased’s life could have been saved, but the court is deeply concerned with the way the accused conducted himself, namely going to bed, not mindful what could happen to the deceased out there. [34] I have considered all the essential elements that must be established when the defence of self-defence is raised. I have taken in totality evidence placed before this court. I have looked at the conduct of the accused and the deceased on the fateful night. I have further considered that the deceased and the accused are very close relatives, as their fathers are biological brothers. I would want to assume that as brothers, they would protect each other against third parties. I want to believe that the accused reported to the deceased that Thabo attacked him, because the deceased was his older brother. I further have a strong believe that the accused expected his brother to take his defence. When the accused reported the assault on him to the deceased, the deceased heard none of it, instead pulled him away and said they should go home. I am dealing with this matter in a different context from the one discussed above. Accused admitted that he was angered by his brother’s conduct. I want to believe that this was so because, as his older brother he expected the deceased to be on his side, but that was not to be. Because the accused was not amused by the deceased’s conduct and statement, he raised the Thabo subject again. I find it probable that it was at this occasion that the accused then attacked and stabbed the deceased with the knife. It should be remembered that the deceased is the one who pulled the accused and said they should go home. Thabo Masokela on the other hand said he was surprised to learn of the tragic situation, because when they parted ways, there was no sign of any misunderstanding. I have a view that the accused raised this subject because he was not happy with the deceased. This therefore boils down to the fact that the accused was the aggressor. I therefore reject the defence of self-defence. [35] Taking the evidence in totality, I conclude that the accused killed the deceased. **ORDER** 1. The accused is found guilty of murder. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [36]_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. [37] In the case of **_Lefaso v Rex_**[7], **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_ ”. [38] In **_Letuka v Rex_**[8], **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[9]. [39] 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_**[10] and **_S v Petrus_**[11]. [40] 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_**[12], **_Mohlalisi and Others_**[13]), 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_**[14]). [41] 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**[15]**”._ [42] I conclude that there are extenuating circumstances in this matter, to wit, the accused had been drinking Sesotho beer from around 04:00 pm until 08:00 pm when he left the bar. The accused did not premeditate or plan the killing of the deceased. The accused has a rural background coupled with the fact that he was a shepherd. The accused was angry towards the deceased, and this motivated him in the commission of this offence. There is absence of _dolus directus_ in this matter. The accused’s feelings were hurt by the fact that Thabo Masokela hit him with the stick, and the accused was hurt even more when the deceased did not attend to his complaint as his brother. **Sentence** [43] 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 it maximum 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_**[16], **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. [44] In **_R v Rajivee Soni_**[17], It was remarked that a court must not over-emphasise one factor and ultimately a balance must be struck. In** _S v Kruger**[18]** _**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_**** _**[19]**_****__** 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_ ”. [45] The court in **_Soni’s case_** _(supra_) remarked further at page 34, that as our courts have often said, the object of sentencing is to serve the public interest and not satisfy public opinion. In **_S v Mhlakaza and Another_**** _**[20]**_**, **Harms JA** said the following: “ _It remains the court’s duty to impose fearlessly an appropriate and fair sentence even if the sentence does not satisfy the public_ ”. **Mitigation** [46] The crown stated that the accused has no record of previous convictions. The accused led evidence in mitigation of sentence. He testified that he is forty (40) years old and that at the time of the commission of this offence he was thirty-six (36) years old. His father is deceased, while his mother is staying with his brother in the Republic of South, due to her eye problems. He has a daughter aged nineteen years and a grandchild aged two years. He is the sole bread winner for his family. He is a subsistence farmer and has seven goats. He ploughs fields jointly with other people and share the fruits of harvest equally. He testified that upon his release from prison on bail, he discovered that the deceased’s father had unlawfully taken two fields he inherited from his father. Therefore, he has not been able to plough these fields for his livelihood. After this tragic incident, the relations between the accused and his siblings turned sour, to the extent that they are no longer talking to the accused. He said he never approached the deceased’s family for the raising of the head, because he feared for his life, as the deceased’s close relatives wanted to fight him. His daughter is unemployed and does not receive any social grants from the government. His wife left him a long time ago, even before they could solemnise their marriage. It was submitted by Adv. Makhera that the accused showed remorse during the trial by the way he conducted himself. That even after the conviction, the demeanour of the accused did not change. It was submitted on his behalf that after the accused’s fields were illegally taken away from him, by the deceased’s father, the accused did not take the law into his own hands, but he accepted the situation as it was. His livelihood has been taken away from him and that is a punishment by itself. He therefore submitted that all these mitigating factors should be considered in passing sentence on the accused person. **Aggravation** [47] Adv. Thaba, the crown counsel on aggravation of sentence, submitted that the killings are rife in Lesotho in recent times, therefore courts should impose harsh sentences on killers, to deter others from committing similar offences. He stated that right to life is enshrined in the Lesotho Constitution, as such this right should be respected and protected. **Court Analysis** [48] In the case of **_Scout v Rex_**[21], the Court of Appeal stated that sentence is pre-eminently a matter in the discretion of the trial court and that interference with a sentence is only justified on limited grounds. It is in the interest of society that people convicted of murder be put away for a long time. None the less, a sentence for murder must be individually tailored to the facts of each case. Thus, some cases call for heavier sentences than others[22]. [49] In the case of **_Rex v Ranthithi and Another_**** _**[23]**_****_,_** **Ramodibedi JA** , as he then, 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. See **_S v Zinn_**[24]. As regards the consideration relating to the crime committed, there can be no doubt that murder is a very serious offence. This court believes in the sanctity of human life. It is in the interests of society that people convicted of murder be put away for a long time. This is so in order to protect society itself against such people. There must also be a distinction drawn between sentence for murder and sentence for culpable homicide. Regarding the personal circumstances of the accused, the following factors must be considered; accused is the first offender, accused is unsophisticated, tribesman from the rural area, by pleading guilty. [50] I have considered that the accused is the first offender. It means the accused is not prone to offending against the law, therefore the accused should be taken as a fallen angel. This court has considered that the accused is the sole bread winner of his family. He has a nineteen-year-old daughter and a grandchild aged two years. I have considered that when this tragic incident occurred the accused had taken some Sesotho beer and was moderately drunk. He reported the incident to several people, and I have considered that due to intoxication and his sub-intelligence, it never occurred to him to seek assistance for searching for the deceased. This might have been influenced by his level of education and the rural background as well. However, this court is mindful of the fact that one does not need to be educated to know that violence is wrong. It would seem even the people he reported the incident to, never suggested to him to search for the deceased. I have considered that the relations between the accused and the deceased were cordial, that is why they had been drinking together. They even left the bar and took the way home together. Due to misunderstanding that occurred along the way the accused fatally stabbed the deceased. I have considered that the accused inflicted one stab wound. This was not a brutal killing. The accused did not run away after the commission of this offence. He even reported to the deceased’s father about this incident. He remained at the scene of crime until the police came and arrested him. I find that the accused was sorry and remorseful of his actions. He did not only remain at the crime scene, but also handed over the murder weapon to the police. He cooperated with the police in this matter. [51] The accused testified that upon his release from prison, he learned that the deceased’s father had unlawfully taken his two fields. I have considered that the deceased’s father resorted to self-help. Fortunately, the accused did not take the law unto himself, as that could have led to blood shed or loss of another life. I have considered that this is a punishment by itself because the accused has been robbed of means of livelihood for himself and his family. I have considered that the relations between the accused and the deceased’s family have been strained. This is a punishment by itself. I have had an occasion to observe the demeanour of the accused during trial. I formed an opinion that the accused was remorseful of his actions. He came to court without fail on all the material times he was warned to do so. I have formed an opinion that the accused has respect for the courts of law. The accused is still a young man of forty years old. He has a long life ahead of him and he must be given a chance to be rehabilitated into a better person. [52] I have further considered that murder is a serious offence, therefore people who have been found guilty of murder should be put away for a long time. This court has taken judicial notice of high number of killings in Lesotho in recent times. This court believes in the sanctity of human life. The family of the deceased has lost their son, and they will never see him again. I have considered that the accused having inflicted an injury on the deceased, he did not seek assistance in searching for the deceased. The accused left the injured deceased for the whole night out in the veld. The accused was moderately drunk, but for the purposes of sentencing I have considered the fact that the accused left the deceased out there for the whole night, without ensuring that the deceased got medical attention. [53] I have concluded that the most appropriate sentence that will fit this offence, the offender, and the interests of society in the circumstances is the following; **ORDER** 1. The accused is sentenced to ten (10) years imprisonment. My Assessors Agree. ____________________ T.J. MOKOKO JUDGE **FOR CROWN : ADV. R.S THABA** **FOR ACCUSED : ADV. N.E MAKHERA** * * * [1] 1939 AD 370 [2] 1946 AD 1023 at 1027 [3] LAC (2009 – 2010) at Page 7 [4] [2006] 1 BLR 254 (CA) at 257 [5] 1975 (1) SA 429 (A) [6] 1946 AD 331. [7] LAC 1990- 1994 44 [8] LAC 1995- 1999 405 [9] LAC 1995-1999 at P 405 [10] 1980 (3) SA 825 (A) [11] 1969 (4) SA 85 (A) [12] 1992 (1) SACR 628 (C) [13] LAC (1980 – 1984) 110 at 117 [14] 1990 (1) SACR 426 (A) [15] LAC 1995 – 1999 at P 423 [16] LAC 2007- 2008 245 [17] CC 29/14P at Page 34 [18] 2012 (1) SACR 369 (SCA) para 11 [19] 2008 (1) SACR 223 (SCA) [20] 1997 (1) SACR 515 (SCA) at 51 8f-g [21] LAC 2009 – 2010 279 [22] LAC 2009 – 2010 at P 289 [23] LAC 2007-2008 245 [24]1969 (2) SA 537 (A) #### __Related documents ▲ To the top >