Rex V Thato Mohapi (CRI/T/0091/2022) [2024] LSHC 121 (16 February 2024)

# Rex V Thato Mohapi (CRI/T/0091/2022) [2024] LSHC 121 (16 February 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/121/eng@2024-02-16) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/121/eng@2024-02-16) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/121/eng@2024-02-16) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/121/eng@2024-02-16) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Thato Mohapi \(CRI/T/0091/2022\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/121/eng@2024-02-16) [ Download PDF (379.9 KB) ](/akn/ls/judgment/lshc/2024/121/eng@2024-02-16/source) Report a problem __ * Share * [ Download PDF (379.9 KB) ](/akn/ls/judgment/lshc/2024/121/eng@2024-02-16/source) * * * * * Report a problem __ ##### Rex V Thato Mohapi (CRI/T/0091/2022) [2024] LSHC 121 (16 February 2024) Copy citation * __Document detail * __Related documents * __Citations 3 / - Citation Rex V Thato Mohapi (CRI/T/0091/2022) [2024] LSHC 121 (16 February 2024) Copy Media Neutral Citation [2024] LSHC 121 Copy Hearing date 22 March 2024 Court [High Court](/judgments/LSHC/) Case number CRI/T/0091/2022 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 16 February 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) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Criminal law](/taxonomy/case-indexes/case-indexes-refugees-criminal-law) * [Murder](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-murder) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **_CRI/T/0091/2022_** **HELD AT MASERU** In the matter between:- **REX** **vs** **THATO MOHAPI** **JUDGMENT** **CORAM : M.P. RALEBESE J.** **HEARING : 20, 21 and 23 November 2023** **JUDGMENT : 16 February 2024** **SENTENCE : 22 March 2024** _Neutral citation_ :- Rex vs Thato Mohapi & One [2022] LSHC CRI 121 (22 March 2024) **_SUMMARY_** **_Criminal law – Charges of murder and robbery – Failure to cross-examine on critical aspects and untruthful evidence of accused reduce the risk of accepting the evidence of an accomplice witness - Evidence of identification._** **_Sentence –Objective of sentencing - Triad considerations – Parity principle_** **_ANNOTATIONS_** **_CASES:_** **_LESOTHO_** Mota Phaloane v R 1981 (2) LLR 246 Mothobi v Director of Public Prosecutions (C of A no.4/2019) [[2023] LSCA 24](/akn/ls/judgment/lsca/2023/24) (15 May 2022) R v Mohajane and Another (CRI/T 43 of 83) [[1984] LSCA 119](/akn/ls/judgment/lsca/1984/119) (10 October 1984) R v Mokalanyane & Others (CRI/T 44 of 2000) [[2001] LSCA 86](/akn/ls/judgment/lsca/2001/86) (15 May 2001) R v Mosili and Others (C of A (CRI) 5 of 2001) [[2004] LSCA 7](/akn/ls/judgment/lsca/2004/7) (20 October 2004) Teboho Mohajane and Another v R 1982-1984 LLR 434 Thebe vs R LAC (1985-1989) 48 **_SOUTH AFRICA_** Namane and another v S (A 196/2014) [2016] ZAFA C 224 (15 December 2016) S v Mnyamana and Another (43/88) [[1989] ZASCA 144](/akn/za/judgment/zasca/1989/144) (20 November 1989) S v Mthetwa 1972(3) SA 766 (A) S v Nkosi 2016 (1) SACR 301 S v P 1974(1) SA 581 **_BOOKS AND ARTICLES_** P.J. Schikkard, Principles of Evidence, Fourth Edition Juta and Co. **_STATUTES_** Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) Penal Code [Act No.6 of 2010](/akn/ls/act/2010/6) **_Introduction and Background_** [1] The accused person (Thato Mohapi) is a South African man and he stands charged with the murder of Tebeho Lerotholi (the deceased) in contravention of section 40 (1) of the **Penal Code Act**[1] and robbery of a motor vehicle belonging to the deceased in contravention of section 64 of the same Act. The offences were alleged to have been committed on 25th June 2019 at or near Mekaling Meriting in Mohales’ Hoek. The accused person pleaded not guilty to both charges and the Crown led _viva voce_ evidence of three witnesses including an accomplice. The rest of the Crown evidence comprised the witness statements and the post-mortem report which were formally admitted in terms of section 273(1) of the **Criminal Procedure and Evidence Act**[2]. [2] The facts of this case are that the accused was a motor mechanic and scrap yard dealer operating in Soweto, South Africa. The accused got acquainted with Sekei Ramatsoho (PW1) who was a resident of Mohales’Hoek, Lesotho, and was at the time staying in Soweto and working as an illegal miner thereat. Around June 2019 the accused and PW1 agreed to come to Lesotho. The reason for their coming to Lesotho is in dispute as it will transpire later in this judgment. [3] Upon their arrival in Lesotho, the accused and PW1 slept at the house of the accused’s relative in Berea. The following day, they travelled together to Meriting in Mohales' Hoek where they attended a feast hosted by PW1’s sister. That is where they met one Khotso who was PW1's younger brother. After the feast, PW1 and the accused spend the night at PW1's home. On the following day, the 25th of June 2019, PW1 went to Mohale’s Hoek town to buy petrol for his family vehicle traveling by public transport. On his way back home, he boarded the deceased’s vehicle, a blue Honda Fit car which the deceased operated as a cab (4₊1 taxi) around Mohales' Hoek town and outskirts. He alighted the car nearer to his home which is not far from the main road and the vehicle proceeded towards Quthing direction. [4] Soon after PW1 had got home, the accused and Khotso also boarded the deceased’s car which was then going back to Mohales' Hoek town. Along the way, a female passenger, PW2, boarded the same car and all three passengers sat in the back and the driver was alone in the front. The accused sat on the right, Khotso in the middle, and PW2 on the left. When the car approached Letlapeng bus stop, Khotso asked the driver to stop as they had to pick another person with whom they had to travel. The time was around 2:00 pm. After the car had stopped, Khotso alighted to pass water and PW2 had to get out of the car to make way for him. After Khotso had gone out, PW2 got back into the car. It is disputed whether Khotsi got back into the car after passing water, but it was at that moment that the deceased was shot from behind while still in the driver’s seat. It is in dispute who between the accused and Khotso shot the deceased. [5] Following the shooting, Khotso pulled PW2 out of the car and the accused pulled the deceased into the front passenger seat. The accused then sat in the driver's seat and drove off with Khotso and the deceased. The car made a U-turn and drove towards Quthing direction. Along the way, the accused and Khotso came across the stone blockade made by the 4+1 taxi drivers who had been told to block up a blue Honda Fit car. They managed to speed off and pass through the blockade without stopping. [6] The accused and Khotso abandoned the deceased’s car later that day and it was found on the same day near Aliwal Skop (A’Skop) in Quthing with blood stains on both front seats and one dead bullet was found in the car. The body of the deceased was discovered by Mohale’s Hoek police later that day in a culvert near Meriting in Mohale’s Hoek and another dead bullet was found next to the body. [7] After they had abandoned the deceased's car, the accused and Khotso fled and went in different directions. The accused met one Pheello Tlhaba (whose statement was admitted as **Admission A**) as he was fleeing around A'Skop and he asked for directions to Maseru and for assistance to charge his phone. The accused told Tlhaba that he had been traveling in a blue Tazz vehicle with two people and they gave a ride to two men who shot the driver, stole the vehicle and abandoned him in the veld. Tlhaba left the accused at a filling station at A’Skop where he got assistance to charge his phone. [8] Soon after the accused and Khotso had driven off in the deceased’s car, Putsoa Matsoso (Matsoso) (whose statement was admitted as **Admission B**) saw PW2 crying on the side of the road where the accused and Khotso had left her and Matsoso picked her up in his taxi. PW2 narrated to Matsoso what had just happened. Matsoso phoned one Police Officer Ponto working at Mohales’ Hoek Police Station and reported the incident. Police Ponto asked Matsoso to take PW2 to Mohales’ Hoek Police station and he complied. [9] The accused was arrested later on the same day after Thabo Setumo (Setumo) (whose statement was admitted as **Admission C**) had taken the accused to Mohales’ Hoek Police Station. Setumo gave the accused a ride in his vehicle after the latter had stopped his vehicle around A’Skop asking for a ride to Mohales’ Hoek. Though Setumo was going to Holy Cross, he gave the accused a ride on the condition that he would drop him off at Holy Cross. The accused told Setumo that he and his elder brother and another person had just been robbed of their car and that his brother got shot during the incident though he did not die. Setumo had earlier that day met Police Ponto about their private matters and he had overheard Police Ponto talking over the phone about someone who had been shot and robbed of a vehicle. Setumo became suspicious on hearing the accused’s story as it was somehow reminiscent of what he had overheard in Police Ponto’s telephonic conversation earlier that day. When they got to Holy Cross Setumo called Police Ponto and informed him about the accused and his story. Police Ponto asked Setumo not to leave the accused at Holy Cross but take him to Mohales’ Hoek Police Station. Setumo did as asked and he took the accused to Mohale’s Hoek Police Station. [10] The post-mortem report [**Admission I**] indicated that the deceased died from two gunshot entry wounds. One wound was in the right zygomatic region which is the front part between the eye and the ear. The post-mortem report was not legible on which part of the body the other entry wound was, but it was on the left. The report of Detective Police Constable Maoeng [**Admission D**] who discovered the body of the deceased shows that the deceased had four (4) gunshot wounds, in the head behind the left ear, on the right side near the right eye, on the right side of the chest above the breast and in the back. While reading the post-mortem report in conjunction with the report of Detective Police Constable Maoeng, and given that two dead bullets were discovered, one in the car and the other where the deceased’s body was discovered, it can be inferred that the deceased had two bullet entry wounds and two bullet exit wounds. It can further be inferred that the second entry wound was on the right side either in the chest above the breast or in the back. [11] The gun that shot the deceased was never found as PW1 said Khotso handed it back to him while they were back in South Africa and he sold it to someone who was later arrested and convicted of the unlawful possession of the same firearm. [12] The gist of the Crown's case is that the accused murdered and robbed the deceased of his Honda Fit car. The Crown contends that the accused and PW1 came to Lesotho for the sole purpose of stealing the car for one Chauke who wanted a Honda Fit car and was willing to pay the accused M15,000.00 for such a car. The defence of the accused is that he came to Lesotho to fix PW1’s family car and to attend PW1’s family feast. His case is that he did not take part in the murder of the deceased as the deceased was shot by Khotso. He also contends that Khotso coerced him into driving the deceased’s car. **The issues** [13] The major issues to be determined in this case are whether the accused is guilty of the murder of the deceased and whether he is guilty of the robbery of the deceased’s Honda Fit car. In order to decide these issues, the following questions should be unraveled: 1. The purpose for which the accused and PW1 came to Lesotho; 2. Who shot the deceased and whether the accused took part in the murder of the deceased; and 3. Whether the accused was coerced to drive the deceased’s car. **The Purpose for Which Accused and PW1 Came to Lesotho** [14] The first witness for the Crown was an accomplice (PW1). His evidence was that he met the accused in Soweto who told him that there was a Mozambican man named Chauke who wanted a Hoda Fit car and was willing to pay M15,000.00 for it. The accused asked him if he still had his gun to which he confirmed that he still had it. The two of them then contrived and agreed on the plot and the trip to Lesotho to look for the Honda Fit car. PW1 said Chauke paid M7,500.00 being half of the M15,000.00 to the accused before the two of them departed Soweto for Lesotho. He said the accused used part of that money to finance their trip to Lesotho. [15] The accused person’s story as put to PW1 under cross-examination was that one of the reasons for which they came to Lesotho was to attend the PW1’s family feast. PW1 refuted that story and indicated that the accused heard about the feast for the first time when they arrived in Lesotho. PW1 said he would not have attended the feast as he did not have money to travel from Soweto to Lesotho. He jumped at the opportunity of their contrived trip financed by the accused and decided to attend the family feast. This was confirmed by the accused in his evidence-in-chief as he indicated that on the day of their arrival in Lesotho, they slept at his uncle’s house in Berea. He said as they were telling his uncle the reason for their coming to Lesotho, PW1 mentioned that there was a family feast at his home in Mohales’s Hoek that they were going to attend. The accused never mentioned in his evidence-in-chief that one of the reasons for which they left Soweto for Lesotho was to attend PW1’s family feast. It follows therefore that it cannot be reasonably true that the accused traveled to Lesotho with PW1 to attend the feast as the accused did not know about the said feast until when they were already in Lesotho and he heard PW1 mentioning it to his uncle (the accused's uncle). [16] If the major reason for which the accused came to Lesotho was to fix PW1's family car, PW1 could have told him what the problem was with the vehicle. The accused could have confronted PW1 during cross-examination about the nature of the repairs that he made to the vehicle. All that was put to PW1 was that the other reason for their coming to Lesotho was to fix the vehicle that PW1 fueled. For the first time in his evidence in chief, the accused indicated that one of the items that allegedly needed repairs was a burned 'roter'. The court tried in vain to research what a 'roter' was which could cause a mechanical malfunction in a vehicle. The research results were that a 'roter' is something related to the car brakes, but the accused never mentioned repairing the brakes of the vehicle. [17] It is not reasonably probable that the accused could fund the trip (taxi fares) for himself and PW1 from Soweto to Mohales' Hoek to fix a vehicle that he did not know what its problem was, and therefore did not know how much he would charge for the repairs. The fares for a single trip from Soweto to Maseru were estimated at M400.00 per person excluding the fares from Maseru to Mohala's Hoek. It is unlikely that the accused could risk bearing the expenses to travel to Lesotho for three days, thereby forgoing the fees that he could have earned in his motor mechanic and scrap yard business for those days to fix the car in respect of which he did not know how much he would charge or get paid. By the same token, it is not reasonably probable that PW1 could bring the accused to Lesotho where there are good mechanics, to fix a vehicle in respect of which he did know how much he would be charged. [18] For the first time in his evidence, the accused said as he was repairing the vehicle, he discovered some fault with its fuel transmission. He said that was why PW1 went to Mohale’s Hoek town to buy the petrol. This was not put to PW1 under cross-examination, nor was his evidence that he went to buy the fuel for his family car vehicle in order to use it to search for the car to steal rebutted in cross-examination. The defence thus denied the court an opportunity to hear and observe the reaction of PW1 on being told of the accused's version[3]. It was unfair that PW1’s version was left unchallenged under cross-examination only for the accused to controvert it later while PW1 was no longer available to deny or confirm the accused’s version. The purpose of cross-examination from the accused’s perspective is to put his case to the Crown witnesses and to controvert the version of the witnesses, especially on crucial allegations.[4]. The court therefore rejects as false beyond any reasonable doubt that the accused came to Lesotho to fix PW1’s family vehicle. [19] The recap of PW1’s evidence was that: 12. He and the accused came to Lesotho to steal a Honda Fit vehicle for Chauke. 12. The accused informed PW1 that Chauke would pay M15,000.00 for such a car; the accused received half of M15,000.00 from Chauke which he used to finance the trip to Lesotho. 12. When they were at the feast, he and the accused discussed the plan to steal a car and Khotso insisted on joining the complot so that he could also get a share of the money that would be paid for the car that would be plundered; 12. On 25th June 2019 and in pursuance of the complot to steal a car, the three of them agreed that PW1 should go to Mohales' Hoek town to buy petrol to fuel his family car which they would use to search for a car to steal. 13. PW1 boarded the deceased's Honda Fit car (4₊1 taxi) on his way back home and after alighting the deceased’s car, he informed the accused and Khotso that he had seen a few prospective cars to steal including the one he had just alighted which he pointed out to his accessories. The two confederates checked the vehicle which was then on its way towards Quthing direction and confirmed that it was a prospective as it was in mint condition. 12. PW1 gave the accused his 9mm gun with nine (9) bullets and the accused left with Khotso and boarded the deceased's car which was then on its way towards Mohale's Hoek direction. All the foregoing aspects of PW1’s evidence were not gainsaid by the accused under cross-examination and in his evidence. In the absence of any issues on the credibility of PW1, this court has no basis to disbelieve him[5]. We say this in full appreciation of the risks inherent in the evidence of an accomplice and the caution with which his evidence should be approached. The failure of the accused to controvert PW1 on the foregoing critical issues in his evidence or under cross-examination was inconsistent with the reaction that could reasonably be expected from someone who had come to Lesotho to attend the feast and to fix the vehicle and had nothing to do with the plot to steal a car. The court therefore finds it not only unreasonable and improbable but palpably false that the accused came to Lesotho to fix a vehicle and to attend a feast. [20] In view of the caution with which the court must approach the evidence of an accomplice witness, the failure by the accused to cross-examine and to adduce gainsaying evidence on the critical and inculpating aspects of the Crown evidence reduces the risk of a wrong finding premised on the suspect evidence of PW1 being an accomplice witness[6]. The same goes where the accused gives untruthful evidence on the critical matters that the accomplice witness credibly testified on, that is a safeguard that reduces the risk of a facile acceptance of the suspect evidence of an accomplice. As already found, the accused was one step removed from being honest when he said he came to Lesotho to fix PW1’s family vehicle and to attend a feast. The court is satisfied with PW1's condour and credibility and it accepts as a fact that the accused and PW1 came to Lesotho for the sole purpose of finding a Honda Fit vehicle to steal for Chauke. **The Murder of the Deceased** [21] PW2 was the only witness who testified on how the shooting of the deceased happened. Her evidence was that upon boarding the deceased’s car, she found the accused and Khotso sitting in the back and she joined them. PW2 did not know the accused and Khotso. She sat on the far left while Khotso sat in the middle and the accused on the far right behind the deceased. PW2’s evidence was that after she had made way for Khotso who went out of the car to pass water, she got back into the car and remained therein with the accused and the deceased. She said when Khotso was done passing water, he stood next to the rear left door fastening his belt. She said at that moment, the accused, who was sitting behind the deceased, shot the deceased. She could not tell the number of times the gun went off. After the shooting, Khotso told the accused to shoot her, but the accused refused. She said the accused then got out of the car and pulled the deceased to the front passenger seat while Khotso also pulled her out of the car. The accused drove the car off making a U-turn towards Quthing direction. [22] The accused’s story was that Khotso got back into the car after he had passed the water. He said while they were all in the car, he saw the deceased reaching for the glove storage compartment (cubbyhole), and at that moment, Khotso, who was then sitting in the back between him and PW2, took out the gun from his waist and pointed the deceased with it. He said the deceased turned backward from the driver's seat, held the gun that was still in Khotso’s hand and the two men fought over the gun. He said the gun went off during that wrest and the deceased got shot. The question is whether this story is reasonably probably true. [23] It should be pointed out from the onset that PW2’s evidence that Khotso never got back into the car after passing water was not disputed under cross-examination. The allegation that Khotso got back into the car after passing water came up for the first time when the accused was testifying. PW2 was not shaken in her evidence that the accused was the person she saw shooting the deceased from behind. The accused’s story that the deceased got shot when he was wrestling over the gun with Khotso was not specifically put to PW2 under cross-examination. PW2 was asked what her view would be on the evidence that the deceased and one of the perpetrators fought over the gun, and she responded that it would not be the truth. The defence had the duty to cross-examine PW2 on these two critical issues and to confront her about the accused’s version if they wanted the court to disbelieve her. Both of these issues are central aspects of the accused’s defence, and it is startling why the defence counsel failed to put them to PW2 so as to show that she was not being candid. As**Schwikkard at a** l[7] put it in their book- “ _The rationale of (the) duty to cross-examine is that if it is intended to argue that the evidence of the witness should be rejected, he should be cross-examined so as to afford him an opportunity of answering points supposedly unfavourable to him._ ” [24] Failure by the defence to controvert PW2’s evidence coupled with its failure to put the accused’s versions on these two aspects to PW2 leads to an irresistible inference that the accused’s versions are afterthoughts and were fabricated as the trial was proceeding. The court therefore finds that it is false beyond any reasonable doubt that Khotso ever got back into the vehicle after passing water. [25] PW1‘s undisputed evidence was that he gave the accused his gun which had nine bullets when the latter left with Khotso to board the deceased’s car. Without any explanation from the accused as to how and at what point the gun ended up in Khotso's possession, this court operates from the premise that the firearm that shot the deceased had always been in the possession of the accused. This premise corroborates PW2’s contention that the accused is the person she saw shooting the deceased. It is common cause that the accused was sitting behind the deceased and that he remained in the car when Khotso went out to pass water. The court has already found that Khotso never got back into the car after passing water. It follows therefore that the suggestion that Khotso ever fought over the gun with the deceased before the latter's shooting is false beyond any reasonable doubt. The only ineluctable conclusion therefore is that the accused was the one who shot the deceased in the car from behind. [26] PW2 positively identified and pointed out the accused as the person she saw shooting the deceased both at the identification parade on 2nd July 2019 and in the court. The evidence of identification must indeed be approached with caution for the inherent risk that an identifying witness can easily be mistaken. The reliability of an identifying witness’s observation must be tested. As stated in S**v Mthetwa**[8] the factors that can affect the reliability of identification include lighting, the proximity of the witness, the opportunity for observation both as to time and situation, corroboration, the result of the identification parade, and the evidence of the accused. [27] The defence suggestion was that PW2 could be confusing the identity of the accused with Khotso. PW2 steadfastly indicated that she could not confuse them as she had ample opportunity to chat with Khotso in a relaxed mood before the car stopped and before the shooting incident. Apart from that, PW2 had ample opportunity to see Khotso when she got out of the car to make way for him, and when Khotso was standing outside the car after passing water. It is common cause that the shooting incident occurred during the day around 2:00 pm and there was ample light. PW2 said he identified the accused with the thick hair. [28] The evidence of PW3 is of critical importance to the identity of the accused. PW3 indicated that on the day in issue, he was with other drivers of 4+1 taxis at Mokhoatheng in Quthing. They received a call that there was a blue Honda Fit vehicle going towards Quthing direction that they should block up and stop. He said they barricaded the road with the stones which they put across the road and they waited until the said vehicle approached. The vehicle slowed down as it approached them but when they thought it would stop, it sped off and passed the stones blockade. PW3 said he was standing on the driver’s side of the road and as the car slowed down just before it passed the blockade he saw the driver of the vehicle as a dark man who had thick hair. PW3 attended the identification parade on 2nd July 2019, about thirteen (13) days after the incident, and he identified the accused as the man he had seen driving the blue Honda Fit. There is no reason to question the propriety of the identification parade. The way it was conducted passed muster in terms of the essentials of an identification parade as outlined in **Teboho Mohajane and Another v R**[9]. [29] The accused person admitted that that he drove the deceased's car from where the deceased was shot, and where they left PW2. PW2 said the person who shot the deceased was the one who drove off in the deceased's vehicle from the scene of the shooting. Both PW2 and PW3 identified the person who drove the car with the thick hair. There was no suggestion that Khotso ever drove the car on that day or that he also had thick hair. There is no iota of doubt that the accused was the person whom PW2 saw shooting the deceased and the suggestion that Khotso was the shooter is, without any doubt false. No reason whatsoever was advanced for which PW2 could falsely implicate the accused and spare Khotso. PW2 did not know both of them and she had no reason to be biased against the accused. If ever PW2 was biased, it could reasonably have been against Khotso who had suggested to the accused to shoot her but the accused had refused. [30] The question is whether the accused is guilty of the murder of the deceased as charged. We have already found that the accused is undoubtedly the one who shot the deceased in the car though it was not clear whether he shot him once or twice in the car. The post-mortem report indicated that death resulted from two gunshot entry wounds, one of which was on the zygomatic region and the other either on the chest or in the back. Each of those wounds must have been penetrating because, (a) the deceased had two other open wounds which must have been the bullet exit wounds, and (b) two dead bullets were found, one in the car and the other where the deceased's body was discovered. Each of the gunshot entry wounds was sufficient to cause death looking at the critical parts of the body where they were. [31] Did the accused have the intention to murder the deceased? While it is clear from the facts and the evidence that the intention of the accused and his accessories on that day was to rob a Honda Fit car, the accused knew that whoever they would rob of the car could resist the robbery and put up a fight. He sought PW1's gun from the time they conceived the plan to come to Lesotho and steal the car for Chauke. When he armed himself with PW1's gun on the day of the incident, he foresaw either that he could be forced to use the gun to subdue resistance from the driver of the car, or that should the driver put up a fight and resist, he could be forced to use the gun. Either way, the accused foresaw that death could result from using the gun on the driver that they were going to rob. Careless as to the consequences thereof, he nevertheless continued with the robbery. When the accused shot the deceased in order to subdue him to raise any resistance to the robbery or to eliminate him so that he could not live to re-tell the tale, he had the intention to murder the deceased in the form of _dolus eventualis**[10]**_. The accused is therefore found guilty of the murder of the deceased with the intention in the form of _dolus eventualis_. [32] Even if Khotso could have been the one who shot the deceased, that would still not exonerate the accused because he would have acted in common purpose as he, Khotso and PW1 were in a joint operation to rob a car using a gun[11]. When one of them shot the owner of the vehicle that they robbed, it made no difference in the guilt of all of them. Each one of them who joined in the operation was liable to the same extent as the other for the acts of each of them carried out in pursuance of the joint operation[12]. **Robbery** [33] The court has already found that the accused and PW1 came to Lesotho for the sole purpose of stealing a Honda Fit car for Chauke. It is common cause that following the shooting of the deceased, the accused drove the deceased’s vehicle. The accused person’s defence was that he was coerced by Khotso to drive the robbed vehicle. In our view, there is no slightest possibility that the accused was ever coerced as hereinafter demonstrated. The idea of coming to Lesotho to steal a Honda Fit car was conceived by the accused. He got paid half of the money for the car even before they came to Lesotho. He funded the trip for himself and PW1 from Soweto to Lesotho. He discussed the plan to execute the theft of a car with PW1 and Khotso. He armed himself with PW1's gun before they went to execute the mission to steal a car. He shot the deceased in the car, pulled him to the front passenger seat and drove the car. Along the way, there was an attempt to block up and stop the car by PW3 and the other taxi drivers. The accused drove through the stone barricade without stopping or indicating that he was under coercion. From the foregoing scenario, the court fails to see anything reasonably consistent with coercion. It is therefore false without any doubt that Khotso coerced the accused to drive the deceased's car. PW2's evidence was that immediately following the shooting, the accused got out of the car from the right side, pushed the deceased to the driver's seat, and sat on the driver's seat. There was never a suggestion from the defence that Khotso forced the accused to do all that at gunpoint. [34] The offence of robbery in terms of section 64 of the **Penal Code Act** comprises theft and the use of violence. By the time the accused and Khotso abandoned the vehicle at A'Skop, the offence of robbery was already completed. The accused and his accessories had the intention to permanently deprive the deceased of his car. The accused shot and thereby used force on the deceased to subdue any resistance to the taking of the car. He and Khotso only abandoned the vehicle after the failed block-up out of the fear that they were being chased. The accused said as he was driving, after they had passed the blockade, Khotso told him that they were in trouble and suggested that they abandon the car. **Disposition** [35] The fact that the accused lied to two Crown witnesses about the incident and told them contradictory stories (Tlhaba and Setumo whose statements were admitted as **Admissions A and C**) further goes to show a man who had a guilty conscience and that was not consistent with someone who had acted under coercion. The accused tried to explain the untruthful and inconsistent stories he told the two witnesses by claiming a language barrier. He suggested that they could not understand one another, with those witnesses. The court however noted throughout the proceedings that the accused spoke and understood Sesotho very well. While the two witnesses indicated in their statements that his dialect sounded South African, they did not suggest that they could not understand each other as they talked to him. It is interesting to note that the accused raised the language barrier to cover up the inconsistent stories he gave the Crown witnesses yet there was no such barrier when he discussed the complot to steal the car with PW1 and Khotso who, like the two Crown witnesses, were also Basotho. [36] If the accused was innocent and he had come to Lesotho to attend a funeral and fix a vehicle, if he had not been part of the conspiracy to rob the deceased, he could not have lied to the two Crown witnesses whom he met immediately after the incident. [37] In the circumstances of this case, the Crown has proved the guilt of the accused person on both counts of murder and robbery beyond any reasonable doubt. He is thus found guilty as charged under both counts. **Discharge of the accomplice** [38] The court should now determine whether PW1 should be discharged from criminal charges as prescribed in section 236(2) of the **Criminal Procedure and Evidence Act**. PW1 answered all the questions put to him satisfactorily. In assessing his testimony in the light of the rest of the evidence in this case, including that of the defence, he proved to be a credible witness.[13]. He is thus discharged from criminal liability in respect of the offences charged in this case. **Extenuating circumstances** [39] The fact that the accused person has been convicted of murder with _dolus eventualis_ has an extenuating effect. The other factor which extenuates the accused's blameworthiness is the fact that he is the only one who has been charged yet he committed the offences with PW1 and PW1's brother (Khotso) who is at large, and there has not been an indication that the Crown is making any efforts to bring him to book. [40] The court therefore finds the accused guilty of murder with extenuating circumstances. The assessors agree. _______________________ Ralebese J. Judge **Sentence** [41] Sentencing is the most difficult part for any judicial officer in a criminal case, yet the most critical in the criminal justice system as it constitutes an important indicator against which the effectiveness and functionality of the legal system is measured. Sentencing is difficult not because it is daunting, but because many conflicting interests have to be balanced. Sentencing of wrongdoers is generally meant to promote law and order and to maintain a just, peaceful and safe society for all. The specific objectives of sentencing are to prevent crime by deterring the offender (specific deterrence) and others who have the propensity to commit crimes (general deterrence) from criminal behavior; to denounce criminal conduct by ensuring that the offender is adequately punished (retribution); to remove dangerous offenders from the streets to protect the community (prevention); and to rehabilitate the offender for purposes of re-integration back into the society (rehabilitation). [42] In considering a just sentence to be imposed on the accused, the court should have regard to and balance these general objectives of sentencing and blend them with the triad considerations espoused in **Mothobi v Director of Public Prosecutions**[14]. The triad considerations are the gravity of the offence, the interest of society and the circumstances of the accused. In all these considerations, the court should balance between the aggravating and mitigating circumstances. **The gravity of the offences** [43] The court has considered that the accused conceived and planned the robbery in South Africa and he ultimately traveled to Lesotho to execute the plan without any second thoughts on his wicked scheme. Upon arrival in Lesotho, he sat down with his accomplices to plan the robbery without rethinking the consequences of their depraved complot. Evidence has shown that the intentions of the accused were influenced by the desire for financial gain. It is disheartening that the deceased’s life was taken for the desire to gain a mere R15,000.00 which the accused would ultimately get for delivering the robbed vehicle to Chauke. [44] The deceased was shot twice in cold blood for no apparent reason as he had not put up a fight. He was in fact unsuspecting when the accused shot him from behind in the car. The accused had an opportunity to only incapacitate the deceased through other less brutal means to forestall any resistance that he could put up, instead of killing him. The court found that the accused was the one who shot the deceased in the car, and he went on to drive the deceased’s vehicle. He was therefore the main perpetrator. [45] The offences were committed in broad daylight in total disregard of PW2, a passenger in the deceased’s vehicle who was left seriously traumatised by the fatal shooting of the deceased telling from how hysterical she was when she was testifying. This demonstrated utter impunity on the part of the accused and his accomplice. The firearm that the accused used, though never recovered, was an unlawful one that had been imported into Lesotho through the influence of the accused for the sole purpose of executing the premeditated robbery. [46] Murder is the most serious of crimes. Not only does it end the life of a loved family member, but it leaves much hardship and pain for the remaining family members. The deceased was a family man who was making a living for his family with his car. The Crown made aggravating submissions that pointed out the dire effect of the deceased passing on his family‘s economic situation. The whole family depended on the deceased for their livelihood, and he was brutally killed to satisfy the greed of the accused person. The deceased’s children will no longer get the quality education that their mother could have wished for them. As indicated, the elder son was forced to drop out of school as the mother could not afford to pay his tuition fees while the younger daughter depends on the Government social grant for her school fees; the grant could be going to another deserving vulnerable child were it not for the accused's doing. The offence has caused considerable strain on the surviving wife of the deceased as she must struggle to maintain the family livelihood and support her two children. The family has been robbed of a provider, a protector and a loved one, nothing can be more devastating. [47] The community of taxi owners and drivers at Mohale’s Hoek must have undoubtedly been left devastated and in great fear for their lives by the brutal killing of one of their own. [48] All the foregoing factors call for sentences that will serve the retributive purpose to everyone affected in one way or the other by the offences. Everyone affected should have a sense that the accused has paid for his acts. **The Interests of Society** [49] The court takes judicial notice of the high rates of robbery and murder in our country. This calls for sentences that will not only deter the accused but others who have the propensity of committing similar offences. The sentences should reflect the court’s and the nation’s displeasure and abhorrence of these crimes. Members of the community should have a sense that the courts are there to protect them against criminals, lest they take the law into their own hands. [50] Unlawful taking of human life calls for the possible highest sentence more so when it was committed in the course of an armed robbery. A human life is a one-time sacred gift that should be respected and not just taken to advance covetous motives. It is only through the imposition of deterrent sentences that human life and its sanctity will be venerated. [51] Robbery of motor vehicles or any other property using a firearm is similarly a serious offence as it instills fear within society. It also calls for a sentence that will not only be a deterrent on the accused but even to other robbers. The sentence should give Basotho a sense that the courts are there to protect them in their hard-earned property. In this case, the deceased was killed in the course of being robbed of his vehicle which he was using to make a living for his family. Taxi drivers and owners need to be protected against heartless robbers by imposition of deterrent sentences. **Circumstances of the Accused** [52] The court has considered that the accused is the first offender in this jurisdiction. His personal circumstances that he was the breadwinner taking care of his mother and siblings at the time of his arrest might have influenced the commission of the offence. That however does not excuse his hideous deeds as he was still making a life as a mechanic and scrap yard dealer. The court also notes that the accused did not commit the offences alone, yet he was the only one charged as PW1 turned the state witness, and the other accessory is at large. That notwithstanding, the accused was an instigator, and he played a major role when the offences were committed. At his age, there is a possibility that with proper rehabilitation he might re-integrate into his community to become a better citizen who will sensitise others that crime does not pay. The court has also taken cognisance of the time that the accused spent in incarceration while awaiting finalisation of his trial. [53] It was submitted on behalf of the accused that he was influenced to commit the offences by his youth. The accused was twenty-four years old in 2019 when he committed the offences. He could hardly be said to have been a youth. In **Thebe vs R**[15] the court said the accused who was twenty-one years old and had been convicted of ritual murder could not be said to have been influenced by youth to have committed the offence but that it was … _a choice of evil that set him upon his dark course_.” I embrace those sentiments in the instant case. [54] The foregoing factors will be viewed in conjunction with the parity principle which requires that a sentence imposed should be more or less similar to sentences imposed in comparable cases. In **R v Mosili**[16] the three appellants had robbed the deceased of his vehicle; they had shot him dead and had dropped his body in a donga. The trial court sentenced each one of them to thirty-five years imprisonment in respect of the two counts of murder and robbery which were taken together for the purposes of sentencing. They appealed the conviction and the sentence and the Court Appeal while dismissing their appeal said: _“The sentence imposed on the appellants was a very substantial one. I myself would have been inclined to impose a lesser sentence notwithstanding the seriousness of the appellants’ conduct and the heinousness of the offences they committed. One must guard against the imposition of sentences that are so high as ultimately to leave little or no hope for the offender’s rehabilitation and reintegration into society. However, there is not a striking disparity between the sentence I would have imposed and that in fact imposed. Nor does any other recognised ground exist for interfering with the sentence. It follows that the appellants’ appeals against their sentences cannot succeed_.” [55] In **R v Mokalanyane & Others**[17] accused 1 had been charged with others with two counts of murder and a robbery. The court, in that case, indicated that the fact that accused 1 had committed two murders in the course of a robbery aggravated those offences and it sentenced him to twenty-five years on each count of murder and to six years on a count of robbery, the sentences being made to run concurrently. [56] The Crown submitted that the accused deserved to be given life imprisonment in respect of the charge of murder. While that would be an ideal penalty in the circumstances of this case which would not only serve the retributive purpose but the deterrence objective as well, it would undermine the reformative theory of sentencing. It would also defy the parity principle which aims to ensure fairness and consistency in that a sentence imposed should be more or less similar to sentences imposed in comparable cases. [57] The court therefore finds that the sentences befitting the offences committed, the interests of society, and the circumstances of the accused are as follows: * In **count one** being murder in contravention of section sections 40 (1) of the Penal Code Act, the accused is sentenced to **twenty-five (25) years** imprisonment. * In **count two** being robbery in contravention of section 64 of the Penal Code Act, the accused is sentenced to **eighteen (18) years** imprisonment. The sentences will run concurrently as they were committed as part of one transaction. Given the time that the accused was incarcerated while awaiting his trial, the highest of these sentences being twenty-five (25) years is remitted by five (5) years with the result that he will effectively serve twenty (20) years in jail. _______________________ Ralebese J. Judge For Crown : Advocate Phooko For Defence : Advocate Akhosi * * * [1] Penal Code [Act No.6 of 2010](/akn/ls/act/2010/6) [2] Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) [3] S v P 1974(1) SA 581 [4] Mota Phaloane v R 1981 (2) LLR 246 at 253 [5] S v Mthetwa 1972(3) SA 766 (A) at 769. [6] P.J. Schikkard, _Principles of Evidence_ , Fourth Edition Juta and Co. at Page 588 [7] Supra at page 394 [8] Supra at 768 [9] Teboho Mohajane and Another v R 1982-1984 LLR 434 at 437-438 [10] S V Nkosi 2016 (1) SACR 301 [11] Namane and another v S (A 196/2014) [2016] ZAFA C 224 (15 December 2016) [12] R v Mohajane and Another (CRI/T 43 of 83) [[1984] LSCA 119](/akn/ls/judgment/lsca/1984/119) (10 October 1984) [13] S v Mnyamana and Another (43/88) [[1989] ZASCA 144](/akn/za/judgment/zasca/1989/144) (20 November 1989) [14] Mothobi v Director of Public Prosecutions (C of A no.4/2019) [[2023] LSCA 24](/akn/ls/judgment/lsca/2023/24) (15 May 2022) [15] Thebe vs R LAC (1985-1989) 48 [16] R v Mosili and Others (C of A (CRI) 5 of 2001) [2004] LSCA 7 (20 October 2004) [17] R v Mokalanyane & Others (CRI/T 44 of 2000) [[2001] LSCA 86](/akn/ls/judgment/lsca/2001/86) (15 May 2001) #### __Related documents ▲ To the top >