Rex V Moloi (CRI/T/0190/2017) [2024] LSHC 257 (8 May 2024)

# Rex V Moloi (CRI/T/0190/2017) [2024] LSHC 257 (8 May 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/257/eng@2024-05-08) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/257/eng@2024-05-08) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/257/eng@2024-05-08) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/257/eng@2024-05-08) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Moloi \(CRI/T/0190/2017\) \[2024\] LSHC 257 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/257/eng@2024-05-08) [ Download PDF (320.7 KB) ](/akn/ls/judgment/lshc/2024/257/eng@2024-05-08/source) Report a problem __ * Share * [ Download PDF (320.7 KB) ](/akn/ls/judgment/lshc/2024/257/eng@2024-05-08/source) * * * * * Report a problem __ ##### Rex V Moloi (CRI/T/0190/2017) [2024] LSHC 257 (8 May 2024) Copy citation * __Document detail * __Related documents * __Citations 4 / - Citation Rex V Moloi (CRI/T/0190/2017) [2024] LSHC 257 (8 May 2024) Copy Media Neutral Citation [2024] LSHC 257 Copy Hearing date 15 December 2023 Court [High Court](/judgments/LSHC/) Case number CRI/T/0190/2017 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 8 May 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU****CRI/T/0190/2017** In the matter between **REX********CROWN** **AND** **** **TSEKISO ‘MALERE MOLOI********RESPONDENT** **Neutral Citation** : Rex v Tsekiso ‘Malere Moloi [[2017] LSHC 257](/akn/ls/judgment/lshc/2017/257) CRI (12TH December 2023). **CORAM : HLAELE J.** **HEARD : 04 TH -06TH DEC 2023,13TH -15TH DEC 2023,** **CONVICTION : 18 TH MARCH 2024** **DELIVERED : 08 TH MAY 2024** **SUMMARY** _: The confession made by accused was made voluntarily, freely. The accused made such a confession in his sound and sober senses. There being evidence oliunde, the accused was found guilty of murder._ **_ANNOTATIONS_****:** **_CITED CASES_** : 1. R v Lefu Makhabe** __** and Another (CRI/T 99 of 2) [[2013] LSHC 28](/akn/ls/judgment/lshc/2013/28) (12 March 2013). 2. R v Qobose 1986 LSCA 144. 3. Rex v Montoeli TIaitlai 1996 - 98 LL R and Legal Bulletin 428 at p. 435. 4. R v Tsita (CRI/T 31 of 99) [[2001] LSCA 133](/akn/ls/judgment/lsca/2001/133) (7 September 2001). 5. Mothobi v Director of Public Prosecutions (C of A No. 04/2019) [2022] LSCA 24 (13 May 2022). 6. R v Monatsi and Others (C of A (CRI) 4 of 2005) [[2007] LSCA 7](/akn/ls/judgment/lsca/2007/7) (4 April 2007) at Para 10 p11. **_STATUTES_** 1\. Criminal Procedure and Evidence Act,1981 **_RULING ON CONFESSION AND SENTENCING_** **HLAELE J** **[1]__****_INTRODUCTION_** 1.1 The accused herein was charged as follows; **_COUNT 1_** **THAT TSEKISO ‘MALERE MOLOI IS GUILTY OF CONTRAVENING SECTION 40(1) OF THE PENAL CODE ACT NO.6 OF 2010 READ WITH SECTION 40 (2) AND SECTION 26 (1) THEREOF** In that upon or about the 09th day of April 2017, and at or near Ha Mofumotse in the district of Maseru, the said accused sharing a common intention or purpose to pursue an unlawful purpose together, and in the pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of **HALEOKOE AZAEL KHOABANE** , the said accused did commit the offence of the murder of the deceased **HALEOKOE AZAEL** **KHOABANE** such death resulting from their act or omission, the said accused did thereby contravene the provision of the code as aforesaid. **_COUNT 2_** **THAT TSEKISO ‘MALERE MOLOI IS GUILTY OF THE CRIME OF CONTRAVENING SECTION 40 (1) OF THE PENAL CODE ACT NO. 6 OF 2010 READ WITH SECTION 40 (2) AND SECTION 26(1) THEREOF** In that upon or about the 09th day of April 2017, and at or near Ha Mofumotse in the district of Maseru, the said accused sharing a common intention or purpose to pursue an unlawful purpose together, and in the pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of **MANTSEBENG LYDIA KHOABANE** , the said accused did commit the offence of the murder of the deceased **MANTSEBENG LYDIA** **KHOABANE** such death resulting from their act or omission, the said accused did thereby contravene the provisions of the code as aforesaid. **1.2** **CONFESSION STATEMENT** The prosecution was desirous of handing in the confession statement which the accused allegedly made in terms of Section 228 of the Criminal Procedure and Evidence Act 1981. The defence challenged the admission of the confession statement on the grounds that it was not freely and voluntarily made by the accused according to the requirements of section 228. The court then ordered a trial within a trial to establish the admissibility of the confession. **[2]****TRIAL WITHIN A TRIAL** 2.1 The following witnesses were led by the crown to establish the voluntariness of the confession. The task of the court later was to ascertain whether the evidence proffered by the crown established whether the confession was made freely and voluntarily by the accused in his sober senses. 2.2 The evidence led by the crown in the trial within a trial is as follows; 2.3**PW1** was **Magistrate Kopung** who works at the Mafeteng Magistrate Court. Her evidence was that she has been a magistrate for fifteen (15) years. One of her duties is to take and record confessions made by accused persons. Before she takes an accused person’s confession, she ascertains whether the accused has injuries or bruises. She also examines the emotional-being to verify whether an accused is making the confession freely and voluntarily. Her duty is to also explain to the accused her role as a magistrate and to make the accused feel at ease by setting up the office in a welcoming manner. Understand this procedure to be somewhat a standard preliminary procedure. 2.4 being specific to the case before court, she testified that she had ascertained that indeed the accused had no visible injuries or marks. Also that he was in a general good physical and mental wellbeing. 2.4 PW1’s evidence was that her duty also entails is to en Rule 8 (13) should not be read in isolation. The Rules engaged a step-by-step procedure that determines the role each party has to play in ensuring that the matter is set down for hearing. The Rules give the domis lits a leading role, for the obvious expectation is that he is the one who has the greater interest in seeing the matter being finalized at all times the Respondent given a secondary role. His only comes as an eventuality not as a primary role.suring that the confession document is signed by both the accused and the magistrate and to also append her office stamp on the confession document. The one before court is thus signed by both the accused and the magistrate. It is also stamped accordingly. Her evidence was also that in her own opinion, the accused made the confession freely, voluntarily, in his sober senses and without undue influence. 2.5 once she had established his wellbeing she proceded to put questions to the accused in relation to his being brought before her. These are in a standard form designed for the purpose of taking confessions. 2.6 Most if not all the questions that formed the interaction between PW1 and the accused, are contained in a standard form. It was her evidence that the accused answered the questions satisfaction. The answer that was provided by the accused were according to her, voluntarily made. 2.7 procedurally, as testified by the Magistrate, once she has completed penning the answers in the form, it is read back to the accused person and they both append their signature. She also appends the office stamps. 2.8 asked specifically what her opinion was about the confession made by the accused, she said it was freely and voluntarily made. That the accused was in his sober senses. 2.9**PW2** was **No. 51558 PC Mohasoa** who was an investigating officer of the case. His evidence was that on the 10th May 2017, which was a month after the killing of the deceased persons, he and other colleagues received information that there were people suspected of the killings around the place called Matsieng. They therefore proceeded to that place and arrested seven suspects. The accuse before court was one of those suspects. 2.10 Each of the suspects gave them an explanation regarding the deaths of the deceased persons. They gave the explanation freely, voluntarily and without undue influence. The accused before court in particular gave them an explanation that he was with **Sankoela Mabesa, Lekhina** and **Sello Shakhane** when they killed the two deceased persons. The witness and other two police officers named**Ranthamane** and**Khanare** are the ones who interviewed the accused and the other suspects. Five suspects gave an explanation that they were not part of the killings, they were actually not there. But the accused and **Lekhina** gave the explanation that they were present when the killings were carried out. On two different occasions, the accused narrated these events. At first when they were arrested at the Police Station when they were being interviewed. On the second occasion was when they were at the Police station the accused even handed two _mabetlela_ sticks to the police explaining that one stick was his while the other one belonged to **Lekhina.** He handed these sticks to the police freely and voluntarily. The five suspects who had given their explanation to the effect that they were not present during the killings were released from the police custody. 2.11 This witness’s further evidence was that as the accused and **Lekhina** were quite cooperative, at the end of the interviews they were asked whether they would like to meet a magistrate for their confessions to be reduced to writing. They consented without any hesitation. He also informed them that those confessions would be used in court as evidence against them. The witness and one PC **Mpapeng** then took the accused and **Lekhina** to the magistrate court where they confessed before a magistrate. They handed the accused to the clerk of court once they were in the court proceedings. 2.12 This witness’s cross examination centered around showing the court that he was not a credible witness as he had mentioned that he arrived at the police station with the suspects on the day they were arrested at around 08:00am and also interviewed them and finished interviewing them at 08:00am. Adv Kholoanyane’s contention was that it was not practicable that the witness could have done all the activities at 08:00am. The witness’s response was that the events of this case happened a long time ago in 2017, he therefore might not recall the exact times at which each of these events took place. **[3]****THE CROWN’S CASE** 3.1 To establish that the confession was voluntarily made by the accused in his sound and sober senses, the crown led the evidence of the witnesses as outlined above. 3.1.1 It was the case of the prosecution that the magistrate followed the standard _pro-forma_ which is intended to ascertain the state of mind and physical being of a confessor. 3.1.2 The crown submitted that, according to her testimony, the magistrate had more than 10 years’ experience, that during her tenure as a magistrate, she has had a lot of confessions administered. I take her experience to mean that she would know what it entails to administer a confession. This would include details such as, what to look out for and which questions are vital. Indeed, in her evidence she testified that she did a naked eye test to determine whether there were any physical signs of assault. She testified that she saw none. The magistrate’s testimony about her professionalism and her experience as an administrator of confessions was beyond reproach. Moreover, nothing in her evidence and demeanour before court suggested anything other than that what she testified the truth. 3.1.3 She testified that it was only after she had made introductions which were intended to put the accused at ease that she proceeded to the questions outlined in the _pro-forma_ form. The prosecution argues that by so doing, the magistrate was setting the correct and conducive environment for the accused to feel at ease. 3.1.4 It was also her testimony that having dealt with the preliminaries, that is the naked eye inspection, the introductions, and generally putting the accused at ease, she proceeded with the questions as they appear in the _pro- forma_ form. 3.1.5 The crown argued that the culmination of her evidence established that the confession was voluntarily made by the accused freely and in his sound and sober senses. 3.1.6 The prosecution also led the evidence of PW2, viz D/P **Mohasoa**. In his submissions, advocate Joala argued that the evidence of this witness eradicated any suspicion of assault or torture which could have led the accused to make a confession. It was the argument of the crown that it had been the case of the accused that his confession was as a result of seeing another detainee being tortured in the cells that led him to confess. This witness however, had exhibited to the court the cell-register which showed that the accused was never put in the cells preceding his visit to the magistrate to make a confession. The argument proposed was that it was untenable that an incident that never occurred could have influenced the accused to make a confession. That it was a mere fabrication to suggest that the confession was prompted by witnessing an assault. **[4] DEFENCE CASE.** 4.1 The defence did not lead any evidence to answer the case that had been made by the prosecution once their case was closed. 4.2 The case of the defence rested on two issues; Firstly, that the magistrate had failed to inform the accused that he had another option other than to confess. This they say the magistrate could or should have detected once the accused had said “I came to make a confession because I feel I have no other option.” 4.3 The defence argued that it was at this stage that the magistrate ought to have immediately informed him that he has an option not to make a confession. It was this failure to inform the accused of alternative options, that rendered the confession to lack the element of free will and voluntariness. 4.4 The second argument lodged by the defence was that PW2’s testimony was rife with inconsistencies as a result of which he is not a credible witness. As such his evidence cannot be relied on by the court. 4.5 The inconsistencies the defence were referring to related to the evidence concerning the arrest of the accused. The defence argued that the inconsistencies affected the credibility of PW2 as a witness as his evidence cannot be relied upon by the court. The court was therefore asked to discard the evidence of PW2. **[5]** **ANALYSIS OF THE CASE** **Should the magistrate have informed the accused of other options?** 5.1 What comes to mind is whether the _pro**-** forma_ form is lacking in its inquiry to establish the voluntariness, free-ness and the sober senses of the maker of a confession. A look at the form, once it was handed in, suggests that the drafter of the form was intentional in covering all factors that render a confession free, and voluntary. The form in its design has covered all that needs to be established by one who takes a confession. The relevant issues which establish the state of mind of the confessor is alluded to in the form. 5.2. Specifically, the form makes an inquiry whether the confessor has been assaulted or threatened in any way that could have influenced him to confess, to which the accused in the present case responded in the negative. 5.3 As has been mentioned above, much was made about the accused’s response to the inquiry from the form that asks “why do you want to repeat the statement” to which the accused had responded “I realized that there is no other way but to confess”. To this Advocate Kholoanyane cited the dictum of Majara J (as she then was) in the case of **_R v Lefu Makhaba**[1]**_****__** where she said; _At the trial within a trial, the Crown called five (5) police officers and Senior Resident Magistrate Manyathela Kolobe to the stand. The crux of the witnesses’ testimony was that A1 made the confession freely and voluntarily and in his sound and sober senses before the Magistrate. The Magistrate’s evidence was that the accused came to his office and indicated that he wanted to make a confession. He then advised him of his rights and created a friendly atmosphere. He posed some questions to him and observed that he was in his sober and normal senses. He added that he was satisfied that the accused was not coerced to make the statement. He also observed that he had no visible injuries and appeared to be in good health.**[2]**_ 5.4 This is to suggest that the magistrate had not ascertained the emotional readiness of the accused at the time of the confession. 5.5 I do not agree with this submission by counsel for the accused. Chronologically from the form, this answer is a follow up from the previous question which establishes that the accused has already uttered the statement to someone. He could not, as suggested, mean that he is not aware that he has an option not to confess. It is untenable to suggest that this could be what the accused meant. 5.6 The defence also referenced to the case of **_R v Qobose**[3]**_****** to submit that similarly, the state of mind of the accused at the time he made the confession before PW1 was affected by not knowing that he had options. However, in **_Qobose_** , the accused was accompanied by an unruly crown. This affected the state of mind of a confessor. Pitying **_Qobose_** with the present case, there is no evidence before me to suggest that the accused had any form of pressure to make the confession. **[6]****IS THE****RE****EVIDENCE OF PRE-CONFESSION TORTURE?** 6.1 I have earlier indicated that there is before me uncontroverted evidence that suggested that there has never been a time when the accused was placed in the cell. 6.2 The voluntariness which according to the accused was affected by a fellow arrestee being tortured falls off. **[7]****WAS PW 2 A CREDIBLE WITNESS?** 7.1 The relevance of this is that if the court were to find this witness not to be a credible witness his evidence would be tainted and stands to be disbelieved. A credible witness is one who is believed to be honest and competent based on their knowledge, experience, training, and appearance of trustworthiness. 7.2 The basis for challenging PW2’s credibility was the inconsistency found in his evidence. This, as stated above, related to the time of the arrest. It is the view of this court that such inconsistency must be material to the facts of the case so much that they render the totality of the evidence questionable. 7.3 The inconsistency which the defence counsel hammered on was the question of the exact time of arrest. What is material to this was not the exact clock time per se, but the hours within which the incident occurred. To expect a busy police officer who investigates hundreds of cases between 2017 to date to recall with precision the hours between 3am to 8am is to ask for the slightly impossible. 7.4 I find that the inconsistencies are not material to the extent that this witness’s credibility can be challenged. I find him over-all a credible witness. **[8]****HAS THE CROWN MADE OUT A CASE?** 8.1 The case of the crown is founded on Section 228(2) of the Criminal Procedure and Evidence Act dealing with confessions. 8.2 It emphasises on: _Voluntariness: on this issue I have already provided that PW1 had adhered to the acceptable standard of administering a confession_. _The requirement by the accused that one should ha_ _ve_ _extrapolated succinctly that in the event that he does not confess he can go home_ _presupposes_ _that a magistrate should have been aware of facts which one is not required by law to know unless the confessor informs her_. _For example_ _, as to_ _who accompanied him to the confession_ _or w_ _ho is waiting for him outside._ 8.3 The established practise is that it shall be the clerk of court who accompanies a confessor, which follows a long study of reforms which were intended to ensure any form of suspicion that a confession is not freely made. 8.4 PW2 also removed any form of doubt that had been created by the accused that he confessed due to the fact that he either overheard or in one form or the other saw a fellow inmate being tortured. 8.5 The version by PW2 was not controverted neither did cross-examination shake it. His version being that no time during accused’s arrest was he put in a cell. 8.6 Thus, the doubt that had been created when PW1 was giving evidence was shredded when totally disqualifying the issue of torture (physical or mental or emotional). 8.7 I therefore make a finding that the confession was made voluntarily and freely. The accused was in his sound and sober senses. **[9]****POINTING OUT** 9.1 The pointing out was also made under the save circumstances. The evidence of the crown was never challenged. I find that the pointing out was voluntarily made. Was the confession free, voluntary and made with a sober mind? 1. 1. The defence’s case seems to centre around the accused Option-less” otitis. That had he been aware that he had an option not to confess he would have confessed. 2. The option-less is premised on; 2. He had seen other persons being tortured. 3. He had been brought by the police to the court. He believed if he did not confess, he would be released to the people who would torture him. **[10]****THE CONFESSION** 10.1 Once the confession was ruled to be admissible, the crown attended to by reading it to the court. I should state that the assessors were invited back in to be part of the proceedings. The reading of the confession disclosed the following evidence: 1. That the accused was aggrieved when one Rethabile died after being struck by lightning; 2. That he believed that the deceased in count 1 was the one who caused the lightening to hit Rethabile by employing craft of witchery. 3. The accused believed that he or some other people were next in line to suffer the same fate as Rethabile under the hands and the craft of the deceased in count 1. The deceased had alluded to the fact that accused was his next target. 4. That they conspired with others to go and kill “them”. Them being deceased in count 1 and his wife. She became deceased in count 2. 5. They went to their house. 6. He knocked. 7. They slaughtered them with a knife. **“EXT A”** 10\. 2 CONFESSION “We happened to impound Ntate Haleokoe’s donkey and we tethered and left it there, in the morning, as we impounded it at dawn. We then went to the field and spanned. Upon our return we found it still tethered there. Rethabile then took it to the chief’s place. When it got to the chief’s place Ntate Haleokoe sulkily refused it on the note that the person who untethered his donkey will speak. Thereafter, within a few weeks Rethabile was struck by lighting and he demised. We agreed that indeed it is this old man who did this. Thereafter Ntate Haleokoe then said that he is left with me. It is then that we planned to kill them, him and his wife. Upon our arrival we knocked, entered the house and we killed them. We butchered them with a knife”. The statement of the confession was marked exhibit “A”. 10.3 After the reading of the confession, the crown read the below-mentioned admissions into the record. Exhibit B was evidence of the scene of the crime by Inspector Sepepena. The significance of his evidence is that: 1. The crime scene was littered with blood. 2. 2 bodies were found at the crime scene. 3. The female body had sustained an open wound on the neck and open stab wound on the left cheek. 4. The male body had sustained open wound on the neck and open wounds on the head and both cheeks. 5. The inside of the house was carpeted with stones. 6. The two (2) corpses were conveyed to Lesotho Funeral Services. 10.4 This evidence corroborates the confession in that in the confession, the accused mentioned that the conspiracy they hatched with others, a decision to kill both husband and wife was reached. The evidence aliunde. 10.5 In order for the judgement to narrate the evidence in sequence, I will lose the chronological order of the exhibits and now skip to exhibit D. This exhibit is the LMPS 12. A form that describes the property seized as crime scene exhibits. The description and identity of the exhibits are 1. _Lebetlela_ stick -black-1. 2. _Lebetlela_ stick brown -1. 3. _Okapi_ knife- Three Star- 1. 4. Home Made spear -Black- 1. 10.6 It will be recalled that the confession mentioned that they had slaughtered the deceased in order to kill them. The weapon mentioned in the confession is a knife. C is an okapi knife. 10.7 Exhibits ‘F’ and ‘G’ are post-mortem reports of the 2 deceased. ‘F’ evidences the cause of death of the deceased in count 2 and ‘G’ count 1. I will start with “G” as it talks to count 1. 10.8 In Exhibit ‘G’, the pathologist states that the deceased in count 1 is **HALEREKOE AR****I****EL KHOABANE** , who in terms of exhibit E was identified by ‘Mamont’seng Mokemane who is the relative of both deceased. The cause of his death is stated as **severance of vital vessels and massive haemorrhage. He states that he was assaulted.** 10.9 He continues to state that the corpse had not decayed. He describes that it had lacerations, fractured skull, a huge laceration on the right side of the neck. These observations are consistent with the weapons seized from the accused and other co-accused. In line with the pool of blood found at the home of the deceased which was the crime scene, the pathologist states that **“there is evidence of massive eternal haemorrhage.”** 10.10 On the female corpse, the pathologist in Exhibit F identifies the corpse as that of ‘**MANTSEBENG LYDIA KHOABANE**. He states that the corpse had not deteriorated. The laceration he observed on the neck across the throat is consistent with the knife that appears in LMPS 12 and also the confession statement. The other injuries observed are consistent with the sticks mentioned in LMPS 12. **[11]****HAS THE C****R****OWN PRO****V****ED ITS CASE BEYOND REASONABLE DOUBT?** 11.1 The evidence adduced by the crown points towards the accused as the perpetrator. The crime was committed in common purpose with other actors. The evidence points towards him in that he was put at the scene by the investigations of police officer Mohasoa (Exhibit C) the arresting officer. 11.2 The confession talks of the _mens rea_ where the accused reveals that he had intended to kill both the deceased. The post mortem pities the cause of death with the weapons used by indicating that the injuries are consistent with the weapons confiscated. 11.3 The accused elected not to lead any evidence. Indeed, he bears no onus to prove his innocence. The risks of such do exist as he risks the version of the crown not being contradicted. Where the evidence of the crown is above reproach, the risk increases. **[12]****CONCLUSION** I conclude that the crown has proved the guilt of the accused beyond reasonable doubt. **[13]****ORDER** I therefore find the accused guilty as charged. I invite counsel to address the court on extenuating circumstances. **[14]****EXTENUATING CIRCUMSTANCES** 14.1 Advocate Joala on behalf of the crown rose and submitted that the crown concedes that clearly there are extenuating circumstances. He submitted that the evidence before court is replete with proof that the accused committed the crime influenced by belief in witchcraft. Indeed the evidence of Lebenya Khomonngo’e whose statement was admitted by the defence, read into the record and marked Exhibit H read as follows and I translate and paraphrase: _According to my knowledge and those in our community, it was common knowledge that at all times if one had a dispute with Mr Haleokoe (deceased) and he uttered the words that the person “shall see,” afterwards such a person would be hit by lightning._ 14.2 For the above evidence, indeed the deceased in count 2 seems to have been a notorious witch and there was a funny coincidence between him uttering the “you shall see” and the demise of the person who was the recipient of the threat. 14.3 In fact the conspiracy to murder the deceased in count 2 was hatched at the funeral of one of his alleged victims. 10.4 In **_Rex v. Montoeli Tlaitlai_******[4]**** and **_R v Tsita_**[5] the court in both cases held that it is trite law in our jurisdiction that witchcraft is a mitigating factor. I find in this case, existence of extenuating circumstances. **[15]****MITIGATING FACTORS** 15.1 Advocate Kholoanyane submitted that: Having returned the verdict of guilty, the Court is implored to consider the following extenuating circumstances. 1. The accused is a sole bread winner for his two minor children and one child of the accused’s elderly brother who has since gone to South Africa several years ago and has never returned. 2. The accused is also a sole breadwinner for his elderly mother, born in 1949, with whom the said minor children are now left. 3. The accused is a first-time offender. **[16]****AGGRIVATING FACTORS** 16.1 It was advocate Joala’s contention that, whist the killing of Khoabane Haleokoe, the deceased in count 1, could be attributed to fears of being bewitched, that of his wife in count two (2) was an uncalled-for collateral damage. He submitted that it was cruel even in the way it was executed. The accused had no reason or motive (even Ill-motive) to murder her. He therefore submitted that the court should show its displeasure by the sentence it delivers. **[17]****SENTENCING** 17.1 In restating the trite principles of sentencing, our Court of Appeal as recent as in the case of **_Mothobi v Director of Public Prosecutions_**[6] said: _In sentencing a convicted person, it is trite that the court considers the gravity of the offence, the interests of the accused and the interests of society and attempt, as best it can to balance them_. 17.2 Murder is a serious crime that diminishes the sanctity of life. Any crime that interferes with the sacrosancy of human life should meet a deserving but not angry punishment.[7] 17.3 The accused was a young man (or at least he was at the time of the commission of the crime), who was afraid for his life. He lives in a community that is heavily influenced by sorcery and witchcraft. Throughout the trial he displayed a demeanour of remorse. Although he did not take a stance, I observed that he was remorseful. 17.4 For these reasons I sentence the accused as follows: 1. 16 years imprisonment for count 1 2. 18 years imprisonment for count 2 The sentence is to run concurrently. My assessors agree with me. \------------------------------ **M. G. HLAELE** **JUDGE** For Crown: Adv. Joala For Accused: Adv. T.D Kholoanyane The cross- examination of PW1 was directed at establishing the involuntariness of the confession. It was put to her that the accused had earlier during his arrest, witnessed fellow inmates being tortured for refusing to make confessions. It was suggested to PW1 that having witness the torture of other inmates in the cells, unduly influence the accused to make a confession to avoid the same treatment. The Magistrates rebut to this suggestion was that she would not have known what had occurred to before the accused was brought before her if he did not inform her. That his failure to inform her means that what was being put to her was an afterthought. The standard form and questions put to the accused during confessions give allowance for the accused to disclose such information. It was therefore her conclusion that the confession was freely and voluntarily made. That the accused was in his sober senses at the time he made the confession before her. * * * [1] **_R v Lefu Makhaba and Another_** (CRI/T 99 of 2) [[2013] LSHC 28](/akn/ls/judgment/lshc/2013/28) (12 March 2013). [2] **_R v Lefu Makhaba and Another_** at para 12. [3] **_R v Qobose_** 1986 LCSA 144. [4] Rex v Montoeli TIaitlai 1996 - 98 LL R and Legal Bulletin 428 at p. 435. [5] R v Tsita (CRI/T 31 of 99) [[2001] LSCA 133](/akn/ls/judgment/lsca/2001/133) (7 September 2001). [6] **_Mothobi v Director of Public Prosecutions_** (C of A No. 04/2019) [[2022] LSCA 24](/akn/ls/judgment/lsca/2022/24) (13 May 2022). [7] **_R v Monatsi and Others_** (C of A (CRI) 4 of 2005) [[2007] LSCA 7](/akn/ls/judgment/lsca/2007/7) (4 April 2007) At Para 10 p 11. #### __Related documents ▲ To the top >