Rex V Khaile Mokhele (CRI/T/0007/2017) [2024] LSHC 51 (22 March 2024)

# Rex V Khaile Mokhele (CRI/T/0007/2017) [2024] LSHC 51 (22 March 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/51/eng@2024-03-22) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/51/eng@2024-03-22) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/51/eng@2024-03-22) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/51/eng@2024-03-22) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Khaile Mokhele \(CRI/T/0007/2017\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/51/eng@2024-03-22) [ Download PDF (401.9 KB) ](/akn/ls/judgment/lshc/2024/51/eng@2024-03-22/source) Report a problem __ * Share * [ Download PDF (401.9 KB) ](/akn/ls/judgment/lshc/2024/51/eng@2024-03-22/source) * * * * * Report a problem __ ##### Rex V Khaile Mokhele (CRI/T/0007/2017) [2024] LSHC 51 (22 March 2024) Copy citation * __Document detail * __Related documents Citation Rex V Khaile Mokhele (CRI/T/0007/2017) [2024] LSHC 51 (22 March 2024) Copy Media Neutral Citation [2024] LSHC 51 Copy Hearing date 4 March 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0007/2017 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 22 March 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held at Maseru** **CRI/T/0007/2017** In the matter between **REX** **CROWN** And **KHAILE MOKHELE** **** **** **ACCUSED** _Neutral Citation_ : Rex v Khaile Mokhele [2024] LSHC 51 CRIM (22nd March 2024) **CORAM :** T.J. MOKOKO J **HEARD :** 4TH MARCH 2024 **DELIVERED** **:** 22ND MARCH 2024 **SUMMARY** _Murder- Confession by the accused made freely and voluntarily- Accused pleading alibi- Identification of accused proved beyond reason doubt. Accused convicted of murder and sexual offence act._ **__ANNOTATIONS__** **__Cases__** 1. _Lefaso v Rex_ _LAC 1990 – 1994_ 2. _Lempe v Rex LAC (1995-1999)_ 3. _Letuka v Rex_ _LAC 1995 – 1999_ 4. _Mohlalisi and Others v Rex_ _LAC (1980 – 1984) 110 at 117_ 5. _Rex v Blom 1939 A.D 188._ 6. _Rex v Dhlomo 1961 (1) PHH 54 (A)_ 7. _Rex v Dladla and Others 1952 (1) SA 307 A_ 8. _Rex v Ranthithi and Another __LAC 2007-2008 245_ 9. _Rex v Tsósane 1995-1999 LAC 635_ 10. _R v Blom 1939 AD_ 11. _R v Hlongwane 1959 (3) SA 337_ 12. _R v Mthethwa 1972 (3) SA 766_ 13. _S v Dladla_ 14. _S v Mafela 1980 (3) SA 825 (A)_ 15. _S v Ngobeni __1992 (1) SACR 628 (C)_ 16. _S v Petrus 1969 (4) SA 85 (A)_ 17. _S v Prins 1990 (1) SACR 426 (A)_ 18. _S v Reddy and Others 1996 (2) SACR (A) 8 C-E_ 19. _S v Zinn __1969 (2) SA 537 (A)_ 20. _Scout v Rex __LAC 2009 – 2010 279_ **__Statutes__** 1. _Criminal Procedure and Evidence Act, 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ 3. _Sexual Offences[Act No. 3 of 2003](/akn/ls/act/2003/3)_ **__Books__** 1. _South African Law of Evidence by Hoffman and Zeffert 3 ed_ **JUDGMENT** **INTRODUCTION** **Count I** [1] The accused is charged with contravention of _section 40 (1) of thePenal Code Act No. 6 of 2010, read with section 40 (2)_ thereof. In that upon the 23rd December 2012 and at or near Ha-Mokhothu in the district of Berea, the accused caused the death of Mamohau Matata, such death resulting from his act or omission, thereby contravened the provisions of the Code. **Count II** [2] The accused is charged with contravention of _section 3 (2) of theSexual Offences Act No. 3 of 2003_, in that upon the 23rd December, 2012, at or near Ha Mokhothu in the district of Berea, the accused did unlawfully and intentionally commit a sexual act with Mamohau Matata, and did thereby contravene the provisions of the Sexual Offences Act as aforesaid. **Count III** [3] The accused is charged with the crime of robbery in contravention of section 64 of the _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_. In that upon or about the 23rd December, 2012, at or near Ha Mokhothu in the Berea district, the accused did unlawfully use or threaten to use violence to Moliehi Mohlobo in order to steal and or and or to prevent and or overcome resistance, the said accused did commit the offence of robbery. **Count IV** [4] The accused is charged with contravention of _section 22 of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_, in that upon or about the 23rd December 2012, at or near Ha Mokhothu in the district of Berea, the said accused with the intent to commit murder did strangle Moliehi Mohlobo, thereby did commit the offence of attempted murder. [5] Accused pleaded not guilty to all the four (4) counts. The crown called six (6) witness to testify in this matter. **PW1- Mosiuoa Matata** [6] PW1 testified that the deceased was his wife and that they were living together at Ha Mokhothu in the Berea district. He testified that he knew the accused as they lived together in the same village. He testified that on the 23rd December 2012 at around 04:00 pm the deceased went to the saloon in Berea town. He stated that the deceased was wearing a blue and white T-shirt and a jean skirt. The deceased did not come back home. Around 08:00 pm, the witness went to his parental home at Ha Ratsiu to report to his mother that the deceased had not returned home. His mother told him that the deceased never came to her house. The witness telephoned other church members to inquire about the whereabouts of the deceased, and no one knew about the deceased’s whereabouts. The witness went to the saloon, only to find that the saloon was closed. He called the numbers on the saloon door, and the hairdresser told him that the deceased left the saloon after the hair do. He later proceeded to the crime scene, and found many villagers gathered there. He saw pair of black tights in the road and food split out of the foam pack. He saw these items because of the lights from the vehicle that was at the scene. He testified that he recognised the deceased, and her head was facing gravel road. Her T-shirt was pulled up to the chest. Her stomach was not covered, and her stomach bulged out, as the deceased was pregnant. He saw a cap on the ground next to the deceased. The jean skirt had been pulled upwards. She was bleeding from the nose and her face was facing upwards. The defence counsel did not cross-examine this witness. **PW2- Detective Inspector Toli** [7] He testified that on the 23rd December 2012, he was on duty at Berea Charge Office, when he received a report about the incident at Ha Mokhothu. He proceeded to the scene in the company of officer Hoala. They found villagers gathered at the scene of crime. He saw push-ins, a plastic containing food and some coins in the road. The deceased was lying by the roadside. Upon examination of the body of the deceased, he observed that the deceased was wearing a blue T-shirt, a blue skirt, and that the dress had been pulled up to the stomach area, and the stomach was bare. Her thighs were wide open, and next to her, there was a pair of tights and a panty. He observed that the deceased did not sustain any open wounds, however the deceased had a nosebleed. On the neck there were fingernails marks, which indicated that the deceased had been strangulated. They turned the deceased around, and they found a green shirt under her body. He said they asked PW1 whether the shirt belonged to the deceased, and his answer was in the negative. He stated that people who had gathered there said the shirt belonged to the accused. The shirt had blood stains around the chest area. They took the deceased to the mortuary. They seized the shirt and the Khaki cap they found at the scene and filled LMPS 12 for both items and presented them to court as exhibits. The LMPS 12 was handed in and it was marked exhibit “A”. Under cross-examination the defence pleaded that the accused was at his home sleeping when the incident took place. The defence stated that the shirt found at the crime scene did not belong to the accused. **PW3- Police Constable (PC) Tseliso Hoala** [8] PW3 testified that on in the evening of the 23rd December 2012, he was on duty at Berea Police Station, when they received a report about the incident that occurred at Ha- Mokhothu in the Berea district. He proceeded to the scene of crime with Inspector Toli. At the scene, they found the deceased by the roadside. He saw a T-shirt, but he could not remember whether the T-shirt was on the deceased or by her side. He said the deceased’s under wear had been taken off. They took the deceased to the mortuary. Later they got a report that the accused was at his home. They proceeded to the accused’s home and introduced themselves to the accused’s mother and explained to her what brought them to her house. The accused’s mother took them to the accused’s bedroom. The accused was lying across the bed, and his feet were on the floor. He was wearing a black pair of jeans, and he was still wearing his shoes. He observed an injury on the chest of the accused, which appeared to have been inflicted by teeth biting. He said he asked the accused what happened to his chest, but the accused did not furnish him with an answer. He cautioned and warned the accused and charged him. He searched the accused and found a sum of money in the accused’s pocket. He handed the money to the CID to conduct investigations on the money. He then arrested the accused and took him to the police station. He filled LMPS 12 in respect of the money. The LMPS 12 was handed in and marked exhibit “B”. [9] Under cross-examination it was suggested to the witness that if the accused had sustained an injury on the chest, he ought to have been taken for medical treatment. The witness stated that it was a minor injury which was round and appeared to have been inflicted by teeth biting. The defence denied that the accused had sustained an injury on the chest. The witness stuck to his version regarding the wound on the chest. Under cross-examination it was put to the witness that he did not ask the accused where he obtained the money from. The witness conceded that he did not make that inquiry from the accused. The witness further conceded that he did not ask the accused about his whereabouts when the incident took place. Lastly it was suggested to the witness that the accused was at his home at the material time. The witness stated that he did not know anything about the accused’s whereabouts. [10] The court asked the witness how he managed to see the injury on the accused’s chest, and the witness stated that the accused was not wearing anything on his upper body. The witness further stated that it was around 12:00 am when they came to the accused’s home. **PW4 – Tsepo Kanono** [11] PW4 testified that in 2012 he was staying at Ha- Mokhothu in the Berea district. He testified that he knew the accused very well as they grew up together. He said he knew the deceased very well as the deceased lived in same neighbourhood with him. Between 8:00 and 8:30 pm, he was at his home, when he heard a female voice calling for help. He went outside to investigate where the voice was coming from, and he learned that it was coming from downwards. As he approached the scene, he asked what was happening. Then someone said: **Tsepuna, ke ‘na Khaile, ke na le cheri ea ka” (Tsepuna, it is I, Khaile, I am with my girlfriend**). He testified that “Tsepuna”is his nickname. He went back to his house. After about 15 minutes later, he heard a female voice asking for help. He went outside and proceeded to the place where the voice was coming from. He found many villagers gathered at that place. He went towards the toilet, and asked what was happening. Then the voice said, “it is me, Khaile”. He went back to the rented flats in his yard. He reported to one Mochini. He used Mochin’s phone for light, and Mochini called one Mosebo. Three of them proceeded to the place where the voice came from. They asked what was happening. Then the voice said: “**Ntate Mochine, it is me, Khaile** ” (**Mr. Mochini, it is me, Khaile)** They went back home. [12] He testified that while he was in the house, he heard another female voice calling for help. He proceeded to the scene and found many villagers gathered there. He reported to the villagers about the voice that had come from the toilet, and they proceeded there. They found a lady lying on the ground. He later recognised the lady on the ground as the deceased. He testified that while he was in the company of Mochini and Mosebo, he saw a person who was on top of the other one. He testified that the person who said it is me, khaile, was the one who was on top of the other. Under cross-examination the witness conceded that he did not verify whether the person who said was khaile, was indeed the accused. It was suggested to the witness that when the incident took place the accused was at his home sleeping, and the witness stated that he did not know anything about that. **PW5- Moeketsi Mosebo** [13] He testified that in 2012, he was staying at Ha-Mokhothu in the Berea district. He said he knew the deceased since 2011. He knew the deceased very well, as the husband of the deceased was his younger brother’s friend. He testified that he got a telephone call from PW4- Tsepo Kanono, nicknamed- “Tsepuna”. He rushed to PW4’s house, and together with Mochini, they went to the corner of the yard of one Maqolo. When they got there, they saw a person who was lying on the ground. Then PW4 said: Hey you, khaile, what are you doing here? Khaile replied: “Hey, Tsepuna, I am with my girlfried nothing is happening”. They went back home. After about 30 minutes there was a hue and cry raised behind the house. The witness went outside and proceeded to the place where the voice was coming from. When he arrived at the scene, he asked what was happening. The accused said: “I am with my girlfriend, and she does not want to go”. He said he asked the accused if he was crazy. He was about 3 paces from the accused. The accused then ran away, and he was half naked, as he was not wearing anything on his top part of the body. He said he was able to see the accused because as he ran off, he passed the area where there were lights from houses around, and the accused’s house had lights on. The witness, PW4 and Mochine proceeded towards Maqolo’s house. On the way they came across a bag, money, and a beret. At the corner of Maqolo ‘s house, they saw a body on the ground, with her clothes pulled up. They found a cap and a blue T-shirt with stripes. The witness testified that during the day, when he met the accused, the accused was wearing the cap and the T-shirt, like the ones, found at the scene of crime. The T- shirt had black stripes, and it was next to the deceased. [14] Under cross-examination it was suggested to the witness that he did not identify the accused at the scene of crime. The witness stood his ground that he identified the accused through his voice, as he knew the accused very well. The witness stated further that he identified the accused because of the lights from the nearby houses as well as the light from the accused’s home. This witness stuck to his version that the accused was not at his home sleeping at the material time. The witness stood his ground that he saw the accused holding a lady. Lastly, the witness stuck to his version that during the day, the accused was wearing the cap and a T. shirt like the ones found at the crime scene. **TRIAL WITHIN A TRIAL** [15] The defence challenged the admissibility of the confession on the ground that the accused was tortured by the police to make the confession and that the police promised him a lenient sentence if he made the confession. [16] At the trial within a trial, the crown called Chief Magistrate Manyathela Kolobe, P.C Khotso Thamae and PC Mokhatholane. The crux of the witnesses ‘testimony was that the accused made the confession freely and voluntarily, in his sound and sober senses before the Magistrate. The Chief 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 the accused had no visible injuries and appeared to be in good health. The Chief Magistrate stuck to his version under cross-examination that the accused made a confession freely and voluntarily in his sound and sober senses and in a friendly environment. The defence’s version was that the accused was tortured and threatened to make confessions, with the promise to be given lenient sentence if he confessed. At the end of the trial within a trial, the court made a finding that the confession was made freely and voluntarily and gave its reasons for so doing. The main reason was that the Chief Magistrate and the two police officers’ testimonies were not successfully rebutted during their cross examination. The defence stated that the accused knew the names of police officers who assaulted him, but he failed to name them. This was a clear indication that the accused fabricated the story about the torture. The defence failed to put to the two police officers how he was assaulted, and who assaulted him. It was only when the accused took the witness stand that he went into the details of how he was assaulted. He denied the police officers opportunity to rebut his version. This is a clear indication to the court that the defence failed to put its version to the crown witnesses because, it was an afterthought and fabrication. If the accused had been assaulted in the manner that he described, surely the Magistrate would have observed injuries on his face. The accused did not have any injuries because he was never assaulted and promised a lenient sentence if he confessed. I find that the accused made the confession freely and voluntarily, in his sound and sober senses. The confession was consequently admitted as evidence. The confession was handed in and marked exhibit “C”. [17] Thereafter the post-mortem report was handed in. The post-mortem shows that death was due to suggestion of neck strangulation haemorrhage. The remarks are that death has been due to the presence of collected blood on the veins of the neck and formed blood from tear, nose, mouth secondary to assault which let to haemorrhage and then death. Remarks on external appearance are, cods, rigid, presence of bruises on the right-side knee, bruises on frontal area, formed blood from nose and both ears. Remarks on mouth are that there was formed blood from the mouth, and on the large blood-vessel, there was collected blood on the neck veins (jocular veins and swelling), and on generative organs, uterus- presence of 16 weeks foetus, which was removed out, and other organs normal. It was handed in and marked exhibit “D”. [18] The crown applied in terms of _section 223 (4) of Criminal Procedure and Evidence Act, 1981_ for the admission of the document purporting to be an affidavit of the forensic scientist. The application was duly granted. However, the crown learned about the availability of the forensic scientist, and the crown applied for the postponement of the matter to a later date to secure the attendance of this witness. Ultimately, the crown managed to subpoena the forensic scientist. **PW6 – Mofo Setloboko** [19] PW6 testified that from 2005 to 2010 he was working as forensic laboratory technologist at Lesotho Mounted Police Service (LMPS) Science Laboratory. In the year 2013 he was working as a forensic scientist at Lesotho Mounted Police Service- Forensic Science Laboratory. He is a holder of Master of Science degree in Forensic Science, obtained from Sheffield Hallam University in the United Kingdom, and a holder of Bachelor of Science degree obtained from the National University of Lesotho. On the 9th January 2013, D/P/C Thamae submitted the following items to the Forensic Laboratory for examination. 1\. A brown bag of dimensions 16 x 32 cm, sealed with staples and labelled- “Berea CIR 1081/12/12, Rex v Khaile Mokhele, charge; Murder and sexual offence, deceased: Mamohau Matata, D” with blue ink. Inside the brown paper bag was a green golf shirt with white, light brown and black horizontal stripes. It had reddish brown stains on the left breast area and on the left sleeve. 2\. A transparent 15 x 17 cm self- sealing plastic bag labelled with blue and black ink. It was labelled; “Swab 2 from the deceased’s blood, A1”. Inside the plastic bag were two swab holders each with a red-stained swab. They were both labelled; “Berea CIR 1081-12-12, Charge: Murder”. 3\. A transparent 15 x 17 cm self-sealing plastic bag labelled. “Blood sample from suspect, B”. Inside the plastic bag were two 4ml vacutainers both half-filled with liquid blood. 4\. A transparent 15 x 17 cm self-sealing plastic bag labelled; “Swab 2 from deceased’s vagina, A”. Inside the plastic bag were two swab holders each containing a stained swab. They were both labelled: “Berea CIR 1081-12-12, Deceased: ‘Mamohau Matata”. He testified that the Laboratory was requested to establish whether there was semen and spermatozoa on the swab from the deceased’s vagina. It was also requested to compare the stains on the suspect’s golf shirt with the deceased’s blood and the suspect’s blood. On examination and analysis, the laboratory found that the swab from the deceased’s vagina had semen and contact spermatozoa. It also found that the stains on the golf shirt were human blood group O according to ABO blood grouping system. The suspect’s and the deceased’s blood were both found to be of blood group O according to ABO blood grouping. The Forensic report was handed in and marked exhibit “E”. [20] Under cross-examination, the witness admitted that the examination could not establish whose blood stains were on the golf shirt. The witness further admitted that it could not be conclusively established whether the semen and the spermatozoa found on the deceased’s vagina, were those of the accused, in the absence of DNA analysis. [21] The witness when asked by the court, explained that the examination of the swabs from the deceased’s private parts, indicate that someone had sexual intercourse with the deceased, because of the presence of the semen and spermatozoa found on the private parts. The examination further proved that there was penetration because the semen and the spermatozoa were found inside the vagina. The witness testified that since the deceased was a female person, there was no way she could produce spermatozoa, as the spermatozoa are only produced by a male person. The witness stated that a female person only produces a lubricant which is secretion, totally different from semen. The male person produces semen from the prostate glands and the female persons cannot produce semen because they do not have prostate glands. [22] The crown then closed its case. The defence moved an application for the discharge of the accused in terms of _section 175 (3) of Criminal Procedure and Evidence Act, 1981_. However, the defence after being interrogated by the court in its move, correctly in my view abandoned its discharge application. **DEFENCE’S CASE - DW1- KHAILE MOKHELE** [23] DW1 testified that on the 23rd December 2012, having done all his errands, he went home and bathed. He wore a pair of blue jeans, a T. shirt with blue and white with horizontal stripes, and a brown hat (normally referred to as sporty). Around after lunch he went to Lijekeng tavern for beer drinking with his friends. He had an amount of M500.00 (Five Hundred Maloti) on himself. Later in the evening he went home. An amount of M325.00 remained as his balance. It could be between 6:00 pm and 7:00 pm, when he arrived home. He went straight to his bedroom, took off the T. shirt only and slept. He was awoken by the police and his mother. The police instructed him to wear warmly as he was under arrest. The police took him to Teya teyaneng river, where they assaulted him, on several occasions. He testified that the police then instructed him to go and confess to the Magistrate, about the alleged murder, rape, and robbery. They took him to the Magistrate, and he confessed to killing the deceased. From the Magistrate court the police took him to the hospital, and his blood was drawn. From there he was taken to the Berea Correctional facility. [24] Under cross-examination, the witness admitted that in a trial within a trial he said the police took a (sara-sara) bag, poured water into it, and inserted his head in the bag. It was put to him that now he said the police made him to kneel and put his head into the water. He denied that the two versions were completely different. Under cross-examination the witness denied that it was possible that the blood stains found on the T. shirt could be his blood. The witness further denied that the shirt found at the scene of crime belonged to him. [25] Further under cross-examination the witness denied that both himself and Pw4 grew up together in the same village. However, the witness conceded that he did not dispute PW4’s evidence that they knew each other very well as they grew up together. The witness denied that he was the perpetrator who was chased by the villagers from the crime scene. The witness did not deny when the crown suggested to him, that the person who ran half-naked from the scene was the accused. The defence then closed its case. [26] In closing addresses the crown submitted that it has failed to prove beyond reasonable doubt that the accused committed both count III (Robbery) and count IV (Attempted Murder), therefore he should be acquitted on these counts. **Count I (Murder)** [27] On this count the crown submitted that PW4 and PW5 heard female voice crying for help, and when they arrived at the spot where the voice was coming from, they, saw a person who was on top of the other. The accused identified himself as Khaile and that he was with his girlfriend. Crown submitted that the evidence of both Pw4 and PW5 is reliable and credible because they were familiar with the accused’s voice and were proximate to the accused. The crown submitted further that even if the blood on the shirt does not belong to the deceased, the accused attacked, raped, and killed the deceased. If the accused had not attacked her the deceased would not have bled from the nose. **Count II (Sexual Offence)** [28] Crown submitted that PW5 was not shaken under cross-examination that he identified the person who was on top of the other, as the accused, by his voice when the accused said it was Khaile and that he was with his girlfriend. He saw the accused running away from the scene of crime. The crown submitted that the deceased was found lying on her back, with her thighs wide open, and her dress was pulled up to the upper body. The swabs taken from the deceased’s private parts showed that there was semen and spermatozoa found. PW6 testified that semen and spermatozoa are produced by the male person only. The crown submitted that the findings of Pw6 that there was semen and spermatozoa, is consistent with both PW4 and PW5’s evidence that they saw a person on top of the other, and that they witnessed that it was the accused who ran away from the spot, where the body of the deceased was found. That is the same spot where sexual offence was committed. The crown submitted that the inference should be drawn that it was the accused who raped the deceased. [29] The crown further submitted that the accused’s shirt, which he was seen by PW5 wearing during the day, was found at the scene of crime. The crown submitted that when the PC. Hoala entered the accused’s bedroom, the accused was half-naked- he was not wearing anything on his upper body. The accused was identified at the crime scene, and was identified running from the scene half-naked, and the shirt was found at the scene where the body of the deceased was found. The crown submitted that the only inference to be drawn is that the accused is the one who raped the deceased. The court was referred to the case of **_Rex v Blom_**** _**[1]**_****_._** [30] PC Hoala observed that the shirt had some blood stains on it around the chest area, and he had observed that the accused had sustained an injury on the chest area. Crown submitted that since sexual offence is committed where the victim does not consent to the act, it must be inferred that the deceased must have been fighting for her safety, and the accused must have sustained that injury while he was on top of the deceased. [31] On the issue of identification of the accused, the crown submitted that both PW4 and PW5 knew the accused very well as co-villagers. PW4 and the accused grew up together, so there was no way they could have mistakenly identified him. The court was referred to the case of**_R v Mthethwa**[2]**_**.**** Lastly the crown submitted that both PW4 and PW5 previously knew the accused, knew his voice and they corroborated each other with what they saw. PW4’s nick name is “**TSEPUNA”.** Those who knew him well like the accused called him by this nickname. The accused also knew PW4 by his nickname. PW4 was not surprised when the accused called him by the nickname, and the accused went further to identify himself by saying; “It’s me Khaile”. Crown submitted that even the accused identified the witness as well, therefore this piece of evidence placed the accused at the crime scene. [32] On the other hand, the defence submitted that there was no evidence that the accused committed sexual act with the deceased. The defence further submitted that both PW4 and PW5 do not corroborate each other on the identification of the accused. The defence submitted further that PW4 could not identify who that person was. The defence went further to submit that PW5 falsely implicated the accused, because he had a motive to see the accused locked up. It was further submitted that it was not true that there was some light coming from the nearby houses. It was submitted further on behalf of the defence, that PW5 testified that the accused was wearing a blue and striped T. shirt, while the shirt left at the scene was green in colour. Blood stains on the T. shirt have not been established to be the accused’s blood, as both the accused and the deceased had the same blood group O. Regarding the wound on the accused’s chest, the defence submitted that the accused did not sustain any wound on the chest area, because if he did the police could have taken him for medical attention. Lastly, the defence submitted that PW5 is an unreliable witness, therefore his evidence should be rejected, as untruthful. **THE LAW** [33] It is the accused’s defence that at the material time he was at his home sleeping, therefore he could not have been at the scene of crime. In the case of **_Lempe v Rex_**** _**[3]**_****.** The Court of Appeal, when dealing with the defence of alibi, articulated the approach to be adopted when evaluating testimony in a criminal trial when the defence of alibi is raised. The legal position is as follows: “ _If there is direct or circumstantial evidence which points to the accused as the culprit, the most satisfactory form of rebuttal is for him to show that he could not have committed the crime because he was somewhere else at the relevant time. The defence of alibi is essentially the straight-forward denial of the prosecution’s case on the issue of identity. (See**South African Law of Evidence by Hoffman and Zeffert******[4]******)****[5]**._ [34] However the accused person never bears the burden of proving his alibi, it being sufficient if the alibi might be reasonably true. Since the standard used is that of “reasonably true” the evidence led by the accused person is not considered in isolation but is considered within the totality of the evidence in the case as well as the court’s impression of the witness. (See**_R v Hlongwane_**[6] ). If the accused’s plea is rejected as false, the accused will be in the same position as if he has no evidence on the merits. (See**** also **_S v Dladla_**** _**[7]**_****)**. Nevertheless, it is a factor of significance because appellant’s evidence in support of his alibi, having been rejected, he is in the same position as if he had no evidence on the merits - **_Rex v Dhlomo_**** _**[8]**_****_,Rex v Dladla and Others_**[9]****. [35] When dealing with circumstantial evidence the court must heed the warnings as articulated in**_S v Reddy and Others_ _**[10]**_,** where the court said: “ _In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the opt-quoted dictum in**R v Blom**[11]**, **where reference is made to two cardinal rules of logic which cannot be ignored. These are firstly, that the inference sought to be drawn must be consistent with the all the proved facts, secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn”._ [36] When dealing with circumstantial evidence the court in the case _of**Rex v Tsósane******[12]****_ , stated that in considering circumstantial evidence in criminal cases, the inference sought to be drawn must be consistent with all proved facts, and the facts must exclude all other reasonable inferences except the one sought to be drawn. **ANALYSIS AND DISCUSSION** [37] PW4- Tsepo Kanono testified that he knew the accused since childhood as they grew up together in the same village. He testified that people who knew him, called him by his nickname- “**Tsepuna”.** Both PW4 and PW5 corroborate each other, that when they came to the scene of crime, they saw a person on top of the other, and that the accused referring to PW4 said:” **Tsepuna, it is me, Khaile, I am with my girlfriend”.** As I result of that statement, they left the accused. PW4 testified further that he went to the scene on another occasion in the company of PW5 and one Mochini. The accused said to them:” **Ntate Mochini, it is me Khaile”.** PW5 testified that he was about 3 paces from the accused, when he asked what was happening. The accused said he was with his girlfriend, and she did not want to go. This witness said he asked the accused if he was crazy. It was at that point that the accused ran away, and the accused was half naked. The witness stated that he saw the accused clearly because of the light that came from the residences nearby, as well as from the accused’s house. The witness said among the items that were found at the crime scene was a blue T. shirt with stripes and a cap. He said during the day, the accused was wearing the cap and the T-shirt like the ones found at the crime scene. [38] PW3- PC Tseliso Hoala, testified that when he got at the accused’s home, he found the accused lying across the bed, half naked. He observed an injury on the accused’s chest, which appeared to have been caused by teeth biting. He said he asked the accused about this injury, but the accused did not say a word. [39] PW6- Mofo Setloboko, the forensic scientist was requested to compare the stains on the suspect’s golf shirt, with the deceased’s blood and the suspect’s blood. The examination found that the stains on the golf shirt were of human blood group O, according to ABO grouping system. The suspect’s and the deceased’s blood were both found to be of blood group O. It was, however, a matter of common cause that the T. shirt in question had human blood stains. [40] On examination of swabs from the deceased’s private parts, the semen and the spermatozoa were found. The forensic scientist concluded that the deceased had been raped, because the semen and the spermatozoa are only produced by a male person. It is worth noting that the semen and the spermatozoa were found in the deceased’s private parts. It was therefore conclusive that the deceased had been raped. On this question the crown submitted that it has proved beyond reasonable doubt that the accused is the one who killed and raped the deceased. On the other hand, the defence submitted that the accused was never at the crime scene, as he was at his home sleeping. [41] The identification of the accused as this point is very relevant and critical, in answering the question as to who the perpetrator was. I know turn to the question of whether the identity of the accused has been established beyond reasonable doubt. It is necessary to consider whether PW4 and PW5 were honest, but also whether there was any possibility of their being mistaken. [42] There is direct evidence of two witnesses identifying the accused. He was not a stranger to them. PW4 said he knew the accused since their childhood. He said the accused called him by his nickname and introduced himself by his name to the witness. The witness said he knew the accused’s voice. When testifying in his defence the accused denied that they grew up together. However, this piece of evidence was never denied when PW4 was being cross-examined. I hold a view that this piece of evidence was unchallenged during cross-examination because it is an afterthought and fabrication. I believe PW4’s evidence that they grew up together and knew each other very well. The accused was not alone when he spoke to PW4. Pw4 said he observed that the accused was on top of another person. The accused said he was with his girlfriend. I have no doubt that at that moment, the accused was on top of the deceased, having sexual act with her. It should be recalled that PW4, PW5 and one Mochini, went to the scene, because a female person had raised hue and cry. I firmly believe that the deceased could not raise any alarm at that time, because the accused had strangulated her. The post-mortem report shows that death was due to neck strangulation. To prevent the deceased from making noise or raising an alarm the accused strangulated the deceased. In the same token, PW5 said he knew the accused since 2011. It means that when this incident occurred PW5 had known the accused for at least a year. PW5 testified that he knew the accused very well. He said he identified the accused as he ran away half naked from the scene of crime. The accused had earlier called PW4 by his nickname, and later, he said to PW5 the girlfriend did not want to go away. PW5 stated that he knew the accused’s voice very well. [43] Accordingly, those great dangers of wrong identification that exist where a witness who has had a limited opportunity of identifying a stranger are largely absent here. The question then is whether the two crown witnesses had sufficient opportunity of observing the accused as to exclude the possibility of error. In my opinion their identification can be relied on. Both PW4 and PW5 knew the accused very well as they lived in the same village. Accused introduced himself to them, by mentioning his name to them. He referred to PW4 by his nickname and he called one Mochini by his name. Pw5 said they were about 3 paces away from the accused. I am satisfied that they identified the accused very well through his voice, and he also identified himself to them by telling them who he was. When the accused ran from the scene, PW5 identified the accused and as he ran off, he was able to identify him because of the lights coming from the houses around and the lights coming from the accused’s home. Apart from mentioning his name, the accused said he was with his girlfriend who did not want to leave. This means that there was a discussion between the accused and PW5 for quite some time, which enabled him to identify the accused’s voice properly. PW5 saw the accused running from the scene half naked. When PW3 came to the accused’s house to effect the arrest, he found the accused still half naked. In his defence the accused said when he got to his home, he took off his shirt only and he slept. The accused did not furnish any reason why he chose to take off only his shirt, while his intention was to sleep. I do not find any reason why the accused did not take off his clothes- pants and shirt and shoes if he wanted to retire for the night. I find his version that he took off his shirt only, not reasonably possible true, and it is rejected as false. PW3 found accused exactly in the manner described by PW5 as he ran from the scene. PW3 found the accused half-naked as witnessed by PW5 because he had left his T. shirt at the crime scene. I find that he did not take off the shirt when he arrived at his home, because he had left the shirt at the crime scene. [44] The accused bears no onus to prove his alibi, and I am of the opinion considering what I said about the identity of the accused, that the crown has proved beyond reasonable doubt, that the accused is the killer. [45] On count II- Sexual Offence, the PW4 and PW5 testified that they heard a female voice calling for help. When they arrived at the scene, they saw a person who was on top of the other. PW5 was not shaken under cross-examination that the accused was that person who was on top of the other. PW5 witnessed the accused running away from the scene. The accused introduced himself to both PW4 and PW5 by stating his name and calling PW4 by his nickname. The deceased was found lying at the same spot where the accused ran from. The deceased’s thighs were wide open, and her dress was pulled up to her upper body. Swabs taken from her private parts indicated that there was semen and spermatozoa found in her private parts. PW6- forensic scientist testified that semen and spermatozoa are produced by a male person only, as they are produced from the prostate glands. The swabs taken from the deceased’s vagina clearly show without doubt that someone had sexual intercourse with the deceased. The material question for determination is whether this accused is the perpetrator? [46] It is a matter of common cause that the T. shirt which did not belong to the deceased was found at the crime scene. PW5 said that during the day he saw the accused wearing the T. shirt like the one found at the crime scene. It is of great importance that PW5 testified that the accused ran away from the crime scene half naked. He said when the accused ran from the scene, he could clearly see the accused because of the lights coming from the nearby houses. He further said that he saw the accused because of the lights that came from the accused’s home. This witness was not shaken in this respect under cross-examination. PW3’s evidence corroborates that of PW5 that the accused ran from the crime scene half naked, because PW3 found the accused lying on the bed half naked, exactly the way he was seen running from the crime scene. The post-mortem shows that the deceased had a nosebleed. PW3 testified that the accused had sustained an injury on the chest area. The forensic scientist stated that the T. shirt brought to him for examination had reddish brown stains on the left breast area, chest area and on the left sleeve. In his confession the accused stated that the deceased bit him on the chest. He then covered the deceased’s face with his shirt, to prevent the deceased from identifying him. That is when he saw the deceased bleeding from her nose. This piece of evidence is corroborated by the post-mortem that the deceased bled from the nose. I have no doubt in my mind that the blood stains on the T. shirt came from the deceased’s nosebleed, as the accused covered her face with the T. shirt. I have no doubt in my mind that the deceased is the one who inflicted an injury on the accused’s chest, as she was trying to fight for her safety, but the accused overpowered her. I must state once again that the deceased was found with her thighs open, her dress pulled up to the upper body, and her underwear had been taken off, and was found lying next to her. Semen and spermatozoa were found in her private parts. There is no doubt in my mind that it is this accused person who committed sexual offence with the deceased. When taking the totality of the crown witnesses ‘evidence about the identification of the accused, the accused seen running away half naked from the scene of crime, being clearly identified because of the lights that were there, as well as the light at his home, having been found half naked, exactly in the manner he was seen running from the scene, the accused having identified himself to PW4 and PW5 at the scene, and referring to PW4 by his nick name, both PW4 and PW5 having known the accused for a substantial period of time, could not be mistaken about his identity. I conclude that the identification of the accused by both PW4 and PW5 can be relied on. All the evidence by the crown witnesses point to the only conclusive inference that the accused is the one who had unlawful sexual intercourse with the deceased, and the proved facts exclude every reasonable inference, except the inference that the accused is the one who raped the deceased. [47] In a trial within a trial this court ruled that the confession made by this accused is admissible as it was made freely and voluntarily, and the court furnished its reasons. I need not deal with those reasons here, as they have been referred to above in this judgment. [48] Fast forward to the confession the accused confessed that on the 23rd December 2012, between 8:00 pm and 8:00pm, on his way home he met a lady along the way, and he decided to rape her. He overpowered the victim and raped her. The victim bit him on the chest, and he covered her face with his shirt, so that the victim could not identify him. He observed that the victim bled from the nose, and she died. He saw another lady passing by, he went to her because he suspected that she had witnessed that he had done to the other lady. He attacked this lady; she made noise and people came. He then ran away. He stated that he left his shirt at the spot he raped the victim. He stated that later the police arrested him. [49] The accused’s confession corroborates PW5’s evidence that when the accused ran from the scene, he was half-naked. This is piece of evidence is also corroborated by PW3, who testified that when came to the accused’s house, the accused was half-naked. The confession shows that the victim bit the accused on the chest area. This is corroborated by PW3’s testimony that he saw that the accused had sustained an injury on his chest, which appeared to have been caused by teeth biting. Accused confessed that he covered the deceased’s face with his shirt and that the victim had a nosebleed. This piece of evidence corroborates PW6’s evidence that the shirt brought for examination had human blood stains on the chest area. I have no doubt that the shirt was blood stained when the accused covered the deceased’s face with it, as the deceased was bleeding from the nose. PW2- Detective Inspector Toli, testified that the deceased’s thighs were wide open, and next to her were the pair of tights and a panty. The deceased had a nosebleed and had finger marks on the neck. This piece of evidence clearly shows that the deceased was sexually assaulted. The semen and spermatozoa found in her private parts indicate that the deceased was raped. [50] Taking the evidence of the crown in totality, I conclude that the crown has proved beyond reasonable doubt that the accused killed the deceased and committed unlawful sexual act with the deceased. **ORDER** 1. Accused is found guilty on count I (Murder) 2. Accused is found guilty on Count II (Sexual Offence) 3. Accused is acquitted on both Count III (Robbery) and Count IV (Attempted Murder) My Assessors Agree. **EXTENUATION** [51]_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 or not there are any extenuating circumstances, the High Court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the accused belongs. [52] In the case of **_Lefaso v Rex_**[13], **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_[14]”. [53] In **_Letuka v Rex_**[15], **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[16]. [54] 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 taken into account 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_**** _**[17]**_** and** _S v Petrus_**[18]. [55] The Court of Appeal in the **_Letuka case_** _(supra)_ stated 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_ (See **_S v Ngobeni_**[19], **_Mohlalisi and Others v Rex_**[20] ), 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_**** _**[21]**_**). [56] In the **_Letuka case_** _(supra)_ **Steyn P**. went further to say: “ _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_[22]”. __[57] Applying the principles enunciated in the **_Letuka case_** _(supra),_ I find that the following extenuating circumstances exist in favour of the accused in the matter, to wit; when the accused met the deceased, he was from the tavern, where he had been drinking some beer, at the time of the commission of this offence, the accused was 27 years old, thus a youth, there was no pre meditation of the commission of this offence, and that the accused acted impulsively. **SENTENCING** [58] In the case of **_Scout v Rex_**[23], 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[24]. [59] In the case of **_Rex v Ranthithi and Another_**** _**[25]**_****_,_** **Ramodibedi JA** , as he then was, stated that in determining a proper sentence, it is necessary to have regard to the trial consisting of the offence, the offender, and the interests of society. See **_S v Zinn_**[26]. 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. [60] On mitigation of sentence, Adv. Kholoanyane on behalf of the accused submitted that the accused is the first offender, he has a child aged three years, he is a breadwinner, and takes care of his younger brother’s child who has kidney problems, he works at Machabeng College as a maintenance personnel, and that after the commission of this offence, he spent five years in prison while awaiting his trial. He submitted that the period of five years the accused spent in prison should be considered in sentencing this accused person. [61] On aggravation of sentence, Adv. Mofilikoane counsel for the crown, submitted that murder is a serious offence, therefore the accused should be given a harsh sentence, the accused did not only kill the deceased, but he killed the expected life the deceased was carrying in her womb, before killing the deceased, the accused sexually abused the deceased, there is a public outcry about the killing of women and children, and the accused as a man had responsibility to protect the deceased, but he is the one who attacked her, and that the court should consider that in Lesotho, innocent and defenceless or vulnerable people- women and children become victims of cruel killings at the hands of people like the accused, therefore the court should impose deterrent sentence to prevent the killings of women and children. [62] I have considered that the accused is the first offender, is therefore someone who is not prone to offending against the law, he is the bread winner and takes care of his younger brother’s child, that he spent five years in prison awaiting his trial, and that at the commission of this offence he was aged 27 years. I considered that the accused was still a youth at the time of the commission of this offence. I have considered that at all material times when the accused was warned to appear before court, he would do so without failure. I take that this shows that the accused has respect for the courts of law. I have had occasion to observe the demeanour of the accused during trial, I formed an opinion that the accused is remorseful of his actions. I accept that all these factors favour the accused. However, this court must strike a balance between these factors and others such as the nature of the offence, the interests of the victim and those of society at large, and the prevalence of murder and sexual offence in Lesotho. [63] I had an occasion to observe PW1 while he was testifying in this matter. He is the husband of the deceased. I could sense pain and grief in his voice after so many years since the passing of his wife, and at one stage his voice was trembling. I fully understand what this witness was going through. I have considered that the deceased and her husband were expecting a baby, and that at the time of her untimely death the deceased was 16 weeks pregnant. As the expectant husband, he was looking forward to the birth of his child. Unfortunately, his dream was taken away from him. [64] I have considered that murder is a serious offence, and the court should impose a sentence that reflects the seriousness of this offence. This court believes in the sanctity of life. Life is God given and no one has the right to take away life of another person. Through the sentence that this court passes in this matter, it must send a strong message to this accused person, and others who think like him, that murder and sexual offence shall not be tolerated. I have considered that the two counts in this matter were committed against a woman. This court has taken judicial notice that women and children are vulnerable people. This court has further taken judicial notice of the killings and sexual offences against women and children by male persons. This court should in its sentence must restore the confidence of women and children and the society at large that acts of violence against women and children will be harshly punished. This court must stress that those who commit murder and sexual offences should be put away for a long time, to protects members of society against them. [65] _Section 32. (a) (iii) of the Sexual Offences Act 2003_ , provides that where the offence is committed under section 3 and the circumstances are as described in the definition of coercive circumstances in _paragraph (a), (b), (d), (e), (f) or (i) of section 2_ , to imprisonment for a period on not less than ten years. [66] In _section 2 of the Act_ , “coercive circumstances” include but are not limited to any circumstances where- 1. there is an application of force, whether explicit or implicit, direct, or indirect, physical, or psychological against any person or animal. [67] The accused is charged with contravention of section 3, and the circumstances in this matter fall squarely within the definition of coercive circumstances in _paragraph (a) of section 2_. [68] I have considered that the most appropriate sentence that will fit these crimes, the offender, and the interests of society in these circumstances is the following. **ORDER** 1. The accused is sentenced to twenty-three (23) years imprisonment on Count I (Murder) 2. Accused is sentenced to ten (10) years imprisonment on Count II (Sexual Offence). 3. Both sentences (Count I and Count II) are to run concurrently. My Assessors Agree. **_____________________** **T.J. MOKOKO** **JUDGE** **FOR THE CROWN:** ADV. L. M. MOFILIKOANE **FOR THE ACCUSED:** ADV. MAKARA * * * [1] 1939 A.D 188 [2] 1972 (3) SA 766 [3] LAC (1995-1999) 359 [4] 3 ed at Page 484 [5] LAC (1995-1999) at P 381 [6] 1959 (3) SA 337 [8] 1961 (1) PHH 54 (A) [9] 1962 (1) SA 307 (A) at 311 D-E [10] 1996 (2) SACR (A) 8 C-E [11] 1939 AD at 202-203 [12] 1995-1999 LAC 635 [13] LAC 1990 – 1994 44 [14] LAC 1990 – 1994 at P. 49 [15] LAC 1995 – 1999 405 [16] LAC 1995 - 1999 at P. 405 [17] 1980 (3) SA 825 (A) [18] 1969 (4) SA 85 (A) [19] 1992 (1) SACR 628 (C) [20] LAC (1980 – 1984) 110 at 117 [21] 1990 (1) SACR 426 (A) [23] LAC 2009 – 2010 279 [24] LAC 2009 – 2010 at P 289 [25] LAC 2007-2008 245 [26]1969 (2) SA 537 (A) #### __Related documents ▲ To the top >