Rex V Makhakhe Makoele (CRI/T/0062/2018) [2023] LSHC 217 (1 December 2023)

# Rex V Makhakhe Makoele (CRI/T/0062/2018) [2023] LSHC 217 (1 December 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/217/eng@2023-12-01) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/217/eng@2023-12-01) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/217/eng@2023-12-01) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/217/eng@2023-12-01) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Makhakhe Makoele \(CRI/T/0062/2018\) \[2023\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/217/eng@2023-12-01) [ Download PDF (397.8 KB) ](/akn/ls/judgment/lshc/2023/217/eng@2023-12-01/source) Report a problem __ * Share * [ Download PDF (397.8 KB) ](/akn/ls/judgment/lshc/2023/217/eng@2023-12-01/source) * * * * * Report a problem __ ##### Rex V Makhakhe Makoele (CRI/T/0062/2018) [2023] LSHC 217 (1 December 2023) Copy citation * __Document detail * __Related documents Citation Rex V Makhakhe Makoele (CRI/T/0062/2018) [2023] LSHC 217 (1 December 2023) Copy Media Neutral Citation [2023] LSHC 217 Copy Hearing date 30 November 2023 Court [High Court](/judgments/LSHC/) Case number CRI/T/0062/2018 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 1 December 2023 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU** **CRI/T/0062/2018** In the matter between **REX** **CROWN** And **MAKHAKHE MAKOELE** **ACCUSED** _Neutral Citation_ : Rex v Makhakhe Makoele [2023] LSHC 217 CRIM (30th November 2023) **CORAM :** T.J. MOKOKO J **HEARD :** 30TH NOVEMBER 2023 **DELIVERED :** 1ST DECEMBER 2023**** **__SUMMARY__** _Murder- Crown established a prima facie case against the accused- failure by the accused to give evidence- prima facie case became conclusive- accused convicted of murder._ **__ANNOTATIONS__** **__Cases__** 1. _Director of Public Prosecutions, Gauteng v Pistorius_ 2. _Lefaso v Rex LAC 1990- 1994 44_ 3. _Lerato Mahanye and Another v Rex LLRLB 1999- 2005 105_ 4. _Letuka v Rex LAC 1995- 1999 405_ 5. _Mohlalisi and Others LAC (1980 – 1984) 110_ 6. _Murray v D.P.P 1994 WLR (HL)_ 7. _Osman and Another v Attorney General Transvaal 1998 (4) SA 1224_ 8. _R v Mlambo 1957 (4) SA 727 (A) at 738 A-C_ 9. _Rex v Ranthithi and Another_ _LAC 2007- 2008 245_ 10. _S v Chabalala 2003 (1) SACR 134 (SCA)_ 11. _S v Mafela 1980 (3) SA 825 (A)_ 12. _S v Ngobeni 1992 (1) SACR 628 (C)_ 13. _S v Petrus 1969 (4) SA 85 (A)_ 14. _S v Prins 1990 (1) SACR 426 (A)_ 15. _S v Sidziya and Others 1995 (12) BLLR 1626_ 16. _S v Van Aswegen 2001 (2) SACR 97 (SCA)_ **__Statutes__** 1. _Criminal Procedure and Evidence Act 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ **JUDGMENT** **Introduction** [1] The accused- Makhakhe Makoele is charged with contravention of section _40 (1) of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6), read with section 40 (2) thereof_. In that upon or about the 20th April 2017 and at or near Pitseng Ha Nchee in the Leribe district, the said accused did perform an unlawful act or omission with the intention of causing the death of Khotso Makoele, the said accused did commit the offence of murder of the deceased, such death resulting from his act or omission. [2] The accused pleaded not guilty to the charge. The crown did not accept the accused’s plea, as such the crown led evidence of three crown witnesses to wit: ‘Mabokang Mathibela - PW1, ‘Malerata Maraisane - PW2, Detective Sergeant Tefo Mahloko – PW3, and the admission of the post-mortem report. On the other hand, the defence closed its case, without leading viva voce evidence. **Crown’s Case** [3] ‘Mabokang Mathibela – PW1 testified that the accused is her neighbour’s son. She stated that on the 21st April 2017, between 8:00 am and 9:00 am the deceased arrived at her home. PW1 said she asked the deceased why he had not gone to school, but the deceased did not respond to her question, rather the deceased said he was hungry. PW1 testified further that she observed that the deceased appeared exhausted. She offered the deceased some fat cakes. The deceased was sitting outside basking in the sun. She testified that the accused arrived and without saying a word, the accused grabbed the deceased by the hand and pulled him away. The accused and the deceased took about two steps, and the accused picked up a stick from the pile of wood next to the house and hit the deceased with it on the head and the deceased fell. The witness testified that she rushed into the house to raise an alarm to her husband. When she came out of the house, the accused and the deceased had exited the yard and headed towards the accused’s house. The witness testified that the stick could be the size of the lebetlela stick, and that it was a stick from a willow tree. The witness testified that she did not see the exact spot on the head, where the blow landed. [4] Under cross-examination it was suggested to the witness that upon arrival at PW1’s house, the accused greeted the witness and inquired why PW1 kept the deceased at her house, while he was supposed to be at school. It was further suggested to the witness that the accused intended to talk to the witness’s husband, but the witness denied the accused access to the husband. The witness denied that the accused greeted her. The witness further denied that the accused uttered a word. She stuck to her version that the accused went for the deceased and grabbed him by the hand. [5] Under cross-examination, it was further suggested to the witness that, the accused picked up the deceased, and the deceased attempted to flee, and as a result the deceased fell on the firewood, therefore sustained the injury on the head. The witness stuck to her version that the deceased fell after the accused struck him with the stick on the head. The witness stated that the accused had picked up the child when she came out of the house, after reporting the incident to her husband. It was further suggested to the witness that the accused did not pick the stick from the pile of wood and hit the deceased with it. The witness stuck to her version that the accused picked up the stick and hit the deceased with it on the head. [6] ‘Malerata Maraisane – PW2 testified that the accused is her brother’s son. She testified that on the 20th April 2017, at around 5:00 pm, the deceased came to her home. She said the deceased was not wearing warmly as the weather was quite cold. She said she asked the deceased why he was not wearing warmly in that cold weather, and the deceased replied that he was going to sleep at the ’witness’s house, because one ‘Mamakhakhe (accused’s mother) had expelled him from her home. The witness further testified that, she immediately phoned the accused and informed the accused that the deceased was at her house. She said she further inquired from the accused why the deceased was not wearing warmly in that cold weather. The accused said he would come to pick up the deceased. She said the accused arrived and she told him that the deceased was in the kitchen being offered some food. She told the accused to go to the kitchen to get something to eat as well. The witness remained in the rondavel house as the kitchen is in the other house, some distance from the rondavel house. The witness testified that shortly after the accused’s departure from the rondavel house, she heard a big “**bang”** sound outside. She went outside to investigate what it was. While she was on the doorstep, she saw the accused forcefully pulling the deceased by the hand, and the accused appeared annoyed. The accused took a downwards direction, and he was kicking the deceased, who was crying out bitterly. The witness stated that she shouted to the accused to bring back the child. She said the accused responded by saying; “**This one I am going to kill”.** She stated that she tried to seek some help, but none came as most of the villagers had attended political rallies, as it was general elections period. She testified further that as it was getting dark, she could not leave her home, because she was wearing a mourning cloth, after the death of her son, and she was feeling weak. [7] She testified that the accused was the stepfather of the deceased. She said that the accused and the deceased’s mother got married around the period- December 2016 - January 2017. She stated that when this incident took place, the accused and the deceased’s mother had been married for a period less than six months. Under cross-examination, it was suggested to the witness that, on the 20th April 2017, the accused never talked to the witness on the phone. The witness stuck to her version that she phoned the accused and that they spoke. [8] The defence admitted the post-mortem report in terms of section 273 (1) of _Criminal Procedure and Evidence Act 1981_. Section _273 (1) provides that an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue and the admission shall be sufficient evidence of that fact._ [9] The post-mortem report shows that death was due to head injury post assault with a molamu “stick”. **Remarks-** open wound on the forehead and multiple whip marks all over the body, predominant on the right side of the chest**. External Appearance-** body in supine position, pupils dilated, deep wound on the forehead, whip marks all over the body, predominant on the right side of the chest. Age of the deceased- apparent six (6) years. [10] Detective Sergeant Tefo Mahloko – PW3 testified that he is a member of the Lesotho Mounted Police Service, and that in 2017 he was stationed at Pitseng Police Post in Criminal Investigation Division (CID). He testified that on the 21st April 2017, his office received a report about the murder of the deceased at Pitseng Ha Nchee. Following the report, he proceeded to Ha Nchee in the company of detective Lance Sergeant Tsehla, and Police Constable Pokane. They went to the accused’s house, where they found the body of a small boy. On examination of the body, he observed that the deceased had sustained an open wound on the forehead, bruises on the right chick and bruises on the right knee. They took the deceased to the mortuary. [11] He testified that he went to the accused, introduced himself and his colleagues to the accused, and he informed the accused why they were there. He said he cautioned the accused, told him he has a right to remain silent, and that whatever he said would be used against him in the court of law. He testified that the accused freely and voluntarily gave his explanation. The defence stood up to object on the ground that the alleged extra-curial statement was not made freely and voluntarily, because the accused had not been cautioned and warned. In a nutshell the defence contended that the witness did not explain the rights of the accused to him. This move therefore necessitated this court to rule that a trial within a trial be conducted to establish the admissibility of the alleged admission. **Trial Within a Trial** [12] Detective Sergeant Mahloko in a trial within a trial, testified that he approached the accused in the presence of his two colleagues and the headman- Ben, introduced himself to the accused, and informed the accused why they were there. He testified that he cautioned and warned the accused. He testified further that he informed the accused that he has a right to remain silent and that anything he said will be used against him in the courts of law. He stated that the accused freely and voluntarily gave an explanation, that the accused went around looking for the deceased, when he finally found him, he took the deceased home, where he whipped him, unfortunately the deceased died. He testified that the accused said he took some time before raising an alarm, until midday when he told the villagers that he killed the boy. [13] Under cross-examination it was suggested to the witness that if the admission was made freely and voluntarily, the witness could have included it in his statement. The witness stated that this piece of evidence is missing in his statement because he normally does not use the accused’s explanation in court. It was further suggested to the witness that he ought to have reduced the admission into writing and have it signed by the accused. The witness stated that it was not necessary to do so. [14] The accused testified that detective Sergeant Mahloko did not caution and warn him. He testified that when the police arrived at his house, they asked him what he used to assault the child with. He said he told them that he used a stick. He stated that the police never at any time cautioned and warned him. He said he was very cooperative with the police and insisted that the police did not explain any rights to him. Under cross-examination the accused stuck to his version and was unshaken. [15] During oral submissions Adv. Mapesela, the crown counsel correctly in my view conceded that the crown failed to prove that Detective Sergeant Mahloko cautioned and warned the accused. This court therefore ruled that extra-curial statement was inadmissible because the accused’s rights had not been explained to him. **Main Trial.** [16] Detective Sergeant Mahloko testified that he finally gave the accused a charge of murder and arrested him. The defence did not cross- examine this witness. Crown then closed its case. Adv. Tlapana, counsel for the accused intimated to the court that he intended to move an application for the discharge of the accused, therefore asked to be given more time to prepare himself for that application. However, when the court reconvened, he informed the court that after further consultation with the accused, the defence had reconsidered its position, and would abandon the intended move. Adv. Tlapana informed the court that the defence would close its case, without the accused taking the witness stand. **Evaluation of Evidence** [17] In evaluating the evidence, the court is guided by the following principles: In criminal proceedings the duty is on the crown to prove its case against the accused beyond a reasonable doubt. That the crown has a duty to prove a case against the accused beyond a reasonable doubt does not mean that it must “…close every avenue of escape which may be said to be open to an accused…”**_R V Mlambo_** _**[1]**_. [18] Equally trite is the principle that there is no _onus_ on the accused to prove the truthfulness of his version, so long as his version is reasonably possibly true, he must be acquitted: In**_S v Chabalala_ _**[2]**_,** the court said the following of the approach to evaluating evidence: _The trial court’s approach to the case was however holistic and in this it was undoubtedly right,See S**v Van Aswegen****[3]**. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities, and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect the case for either party (such as the failure to call material witnesses concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) obvious aspect without assessing in the context of the full picture presented in evidence…_ [19] PW1 testified that the accused grabbed the deceased by the hand, and after taking about two steps, the accused picked up a willow stick and hit the deceased with it on the head and the deceased fell. PW1 said the stick was the size of the lebetlela stick. This court has taken judicial notice of the size of the lebetlela stick. The witness did not see the exact spot on the head where the blow landed. All she saw was that the blow landed on the head. This court should not hasten to state that the deceased was a small boy aged 6 years, as indicated in the post-mortem report. I have no doubt in my mind that the deceased fell because a considerable amount of force was applied when the accused struck at him with a stick. It is a matter of common cause that the deceased was sitting outside basking in the sun when the accused arrived at PW1’s house. PW1 said the accused did not utter a word upon his arrival at her house. PW1 testified that when she came out of the house, she saw that the accused had picked the deceased and was heading towards his house.PW1 is the only single witness who witnessed the assault on the deceased. Section _238 (1) of the Criminal Procedure and Evidence Act 1981 provides that subject to subsection (2), any court may convict any person of any offence alleged against him in the charge on the single evidence of any competent and credible witness._ _(2) No court shall-_ _(a) convict any person of perjury on the evidence of any one witness unless, in addition to and independent of the evidence of such witness unless, in addition to and independent of such witness, some other competent and credible evidence as to the falsity of the statement which forms the subject of the charge is given to the court: or_ _(b) convict any person of treason except upon the evidence of two witnesses where one overt act is charged, upon the evidence of one witness to each such overt act._ **Two questions to be decided by the court are:** [20] (1) Is PW1 a competent and credible witness. (2) Is the explanation of the accused reasonably possibly true. [21] Under cross-examination PW1 stood her ground that the accused came to her house, and without uttering a word grabbed the deceased by the hand, picked up a stick and hit the deceased with it on the head and the deceased fell. This witness was not shaken at all. The witness strongly refuted the accused’s version that the deceased fell on the wood, therefore sustained an injury on the forehead due to that falling. The accused did not furnish any reason why the witness would falsely implicate him. On the other hand, the post-mortem report, shows that the deceased sustained an open wound on the forehead. This finding corroborates PW1’s evidence that the accused hit the deceased with the stick on the head. [22] The accused’s version is that the deceased fell on the pile of wood that was collected at PW1’s house. Be that as it may, the accused failed to explain how the deceased fell on the wood, while he was the one who had grabbed the deceased by the hand. I am of the view that if the deceased had fallen on the wood, as claimed by the accused, the deceased would not have sustained such a severe open wound on the forehead. It should be remembered that the accused did not say that the deceased fell from the top. For sure, the accused- a six-year-old, with the normal height at that age, could not possibly fall on the wood from the ground, and sustain such serious injury. However, as this court has already said, the accused failed to explain the circumstances under which the deceased fell. It is for this reason that this court finds that the accused’s version is not reasonably possibly true, therefore it is rejected as false. [23] This court has found that PW1 stood her ground under cross-examination and was unshaken. Not only did PW1 stand her ground, but her evidence is also corroborated by the post-mortem report, which shows that the deceased sustained an injury on the forehead. The accused has not furnished this court with reasons why the witness would falsely implicate him. I am therefore justified in concluding that PW1 was a competent and credible witness. [24] This court is further called upon to determine whether the crown established its case beyond reasonable doubt. I have already concluded that PW1 was a competent and credible witness. I find that the crown made a prima facie case against the accused. However, the accused opted to remain silent and not to take the witness stand. I should point out that the accused has a constitutional right not to give evidence in his defence if he so wishes. In exercising that right, however, the accused where the crown has established a prima facie case, takes a risk that it might turn out to be sufficient proof. See **_Osman and Another v Attorney General Transvaal**[4]**_ , **where it was held that; “… _in an adversarial system, once the prosecution had produced evidence sufficient to establish a prima facie case, an accused who failed to produce evidence to rebut that case was at risk. The future to testify did not relieve the prosecution of its duty, to prove guilt beyond reasonable doubt. An accused however, always runs the risk that in the absence of any rebuttal, the prosecution’s case might be sufficient to prove the elements of the offence”._ [25] The Court of Appeal of Botswana in holding that the constitutional right to silence does not preclude the presiding officer from considering as part of the overall assessment of the case, the accused’s silence in the face of a prima facie case established by the prosecution. In **_S v Sidziya and Others_**** _**[5]**_****, Naicly A.J** put it this way: “ _The right means no more than that an accused person has a right of election whether or not to say anything during the plea proceedings or during the stage when he may testify in his defence. The exercise of right like any other involves the appreciation of the risk which may confront any person who has to make an election in as much as skilful cross-examination could present obvious dangers to an accused, should he elect to testify, there is no sound basis for reasoning that, if he elects to remain silent no inference can be drawn against him”._ [26] In **_Murray v D.P.P,_****_**[6]**_****__****Lord Slynn** held that if the aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation, common sense allows the drawing of an inference that there is no explanation and the accused is guilty. See also: **_Lerato Mahanye and Another v Rex_**** _**[7]**_****.** [27] I hold a strong view that the crown made out a prima facie case against the accused. The accused’s failure to give evidence or call any witness made that case conclusive. And the accused cannot ask the court to believe his version, where the crown has made prima facie against him. [28] This court is called upon to determine whether the crown has proved its case against the accused beyond a reasonable doubt. The crime of murder consists in the unlawful and intentional killing of another human being. The intention (_mens rea_) required must either be _directus, eventualis_ , _indeterminatus_ etc. Direct intention to kill is much easier to discern. My view is that this case is one in which the intention to kill was _dolus eventualis._ This form of intention manifests itself in the following manner, as articulated in **_Director of Public Prosecutions, Gauteng v Pistorius_**** _**[8]**_****__** the court said the following: [A] _Person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore “gambling” as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act “reckless as to be consequences” (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been “reconciled” with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions.**It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent. (Emphasis added).**_ [29] This court has considered the totality of the crown’s evidence, to wit; the evidence of PW1 and PW2. PW2 testified that the day preceding the day on which the deceased met his untimely death, the accused went to her house to pick the deceased. She said the deceased was not dressed warmly considering the cold weather of that day. She further stated that the accused pulled the deceased- a small boy of 6 years by the hand and was kicking him. She stated that the deceased was crying bitterly, and the accused was annoyed. This piece of evidence shows that the accused was in the habit of assaulting the deceased. I need to say with a heavy heart that the deceased was an innocent and defenceless boy. Mr. Tlapana, counsel for the accused submitted that the accused had the best interests of the deceased at heart, that is why the accused would go anywhere to find the deceased, and wherever he found the deceased, he would take him home. I beg to differ with Mr. Tlapana in this regard. It is a matter of common cause that on two occasions the accused found the deceased at two different places and his reaction to the deceased was quite inconsistent with what was submitted on his behalf. When he found the deceased at PW2’s house, the accused pulled the deceased by the hand and kicked him. The court was told that the boy was crying bitterly. [30] On the second occasion, the accused found the deceased at PW1’s house, in the same manner, he grabbed him by the hand and assaulted him with the stick on the head. This time around the accused inflicted a fatal blow on the small boy. I therefore reject the submission that the accused cared for the deceased. PW1 stated in her evidence that when the deceased arrived at her house, she asked him why he was not at school. Instead of answering that question, the deceased said he was hungry. PW2 stated that when the deceased came to her house, he was not dressed warmly considering the weather of that day. She said she offered the deceased some food. This evidence clearly indicates that it was a fallacy that the accused had the best interests of the deceased at heart. The evidence of these two crown witnesses, show that the accused ill-treated the deceased. [31] The post-mortem report shows that the deceased had whip marks all over the body. There is evidence that after the deceased had fallen, the accused picked the deceased and headed towards his house with the deceased. PW1 said that between 2:00 pm and 3:00 pm, on the same day, he learned that the deceased had passed on. PW2 said that on the 21st April 2017, she also learned about the death of the deceased. Detective Sergeant Mahloko stated that on body examination of the deceased, he observed that the deceased had bruises on the right chick and on the right knee. Considering the totality of evidence presented by the crown, I have no doubt that this court can safely infer that the accused is the one who inflicted the whip marks on the deceased. It is a matter of common cause that the accused used a willow stick to assault the deceased with it. The court was told that the willow stick was the size of the lebetlela stick. A stick is a lethal weapon, especially when it is used on a small boy. [32] The accused as an adult male, was naturally more physically stronger than the deceased, who was aged six years. The court was told that after being hit the deceased fell. This fact indicates that the accused applied a considerable force when he hit the deceased with the stick. It is a matter of common cause, that head is a delicate part of the body, as it has brain contained in the skull. Any considerable force applied to the head is likely to cause death. This court has considered that a lethal weapon was used on the delicate part of the body- the head, with a considerable force having been applied. It is not surprising that ultimately death ensued. This court was further told that the accused picked the deceased from the ground and headed towards his house with the deceased. [33] It is apparent that the deceased was severely injured, and the accused was fully aware of the deceased’s condition. One would have expected that taking the nature of the injury sustained by the deceased- a small boy, the accused would have made means to ensure that the deceased got medical treatment, but that was not to be. Both PW1 and PW2 said they learned in the afternoon of that fateful day that the deceased died. It is a matter of common cause that the deceased died at the accused’s house. PW3 confirmed that he found the deceased in the accused’s house. This court firmly believes that if the accused had sought help or raised an alarm about the condition of the deceased, surely the deceased could have been taken to the hospital for medical treatment. The conduct of the accused after he had inflicted the serious injury on the deceased, leaves a lot to be desired. The accused as an adult acted in a very irresponsible manner in this regard, by failing to ensure that the deceased obtained medical treatment. [34] Having said that I conclude that I am justified in holding that the crown proved its case beyond reasonable doubt, that the accused unlawfully killed the deceased. The accused is therefore found guilty of murder with _dolus eventualis_. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [35]_Section 296 (1) of the Criminal Procedure and Evidence Act 1981_ , provides that, where the High Court convicts a person of murder, it shall state whether in its opinion there are extenuating circumstances and if it is of the opinion that there are such circumstances, it may specify them. _Section 296 (2)_ provides that in deciding whether there are any extenuating circumstances, the High Court shall take into consideration the standards of behaviour of an ordinary person of class of the community to which the accused belongs. [36] In the case of **_Lefaso V Rex_**[9], **Schutz P.** explained extenuating circumstances as follows: “ _Extenuating circumstances are such as reduce the moral, if not the legal guilt of the accused. The onus of proving them on a balance of probability rests on the accused_ ”. [37] In **_Letuka v Rex_**[10], **Steyn P** stated that extenuating circumstances are any facts associated with the commission of the crime, whose effect in the minds of reasonable persons is to reduce the moral blameworthiness of the accused, as distinct from the accused’s legal culpability. [38] The Court of Appeal in the **_Letuka case_** (_supra_) stated that there is ample authority for the proposition that the subjective state of mind of the accused is certainly one factor which can be considered in determining whether extenuating circumstances are present. Moreover, it is one that stretches to each and every factor which may throw light on what went on in the accused’s mind. See **_S v Mafela_**[11] and **_S v Petrus_**[12]. [39] The Court of Appeal in the **_Letuka case_** (_supra_) remarked further that, each factor may individually have little weight taken cumulatively however, they may well tip the scale in an accused’s favour when evaluated against the aggravating features. Factors which can be considered include the following; youth, liquor, emotional conflict, the nature of the motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part on the commission of the murder, absence of _dolus directus_ (**_S v Ngobeni_**[13], **_Mohlalisi and Others_**[14]), 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_**[15]). [40] In the **_Letuka case_** (_supra_) **Steyn P**. stated that: “ _It is trite that mere presence of one of these features do not axiomatically mean that they are extenuating in relation to the commission of the crime in casu. Each factor must be weighed and assessed in the light of the evidence as a whole and its relevance to the conduct and the state of mind of the accused, as well as cumulatively with any other factor associated with the commission of the offence**[16]**”._ [41]__ I conclude that there are extenuating circumstances in favour of the accused person, to wit; the accused has been found guilty of murder with _dolus eventualis_ , as there is absence of _dolus directus_ , and there was absence of premeditation or planning of the killing of the deceased, he is semi-literate, Finally, the accused has a rural background and leads a tribal way of life. [42] The court has now come to the most difficult stage of the trial which is the passing of the appropriate and just sentence that will serve the interests of justice. In passing sentence this court should consider three main factors, which are the nature of the offence, the interests of the accused, and the interests of society at large. Murder is a capital offence which carries with its maxim punishment in this country which no longer seems to be a deterrent anymore. In cases such as this one, where the court finds that the death sentence is not appropriate under the circumstances, imprisonment is the only appropriate sentence. In the case of **_Rex v Ranthithi and Another_**[17], **Ramodibedi JA** , as he then was, stated that in determining a proper sentence, it is necessary to have regard to the trial consisting of the offence, the offender and the interests of society. As regards the consideration relating to the crime committed, there can be no doubt that murder is a very serious offence. This court believes in sanctity of human life. It is in the interests of society that people convicted of murder be put away for a long time. This is so in order to protect society itself against such people. There must also be a distinction drawn between sentence for murder and sentence for culpable homicide. The court is enjoined to strike a proper balance between all these factors. [43] The accused person led evidence on mitigation of sentence. He gave evidence that he is forty- four (44) years old. He stated that he has since separated with his wife, who is the deceased’s mother. His mother and four sisters are still alive, and that they are dependent on him as he is the sole bread winner. He testified that he herds animals and earns M700.00 per month. He is the first offender. He stated that he is willing to raise the head of the deceased. He further gave evidence that he approached his mother-in-law and tendered his apology for what he did. Lastly, he asked the court to be lenient on him when passing sentence, because he takes care of his elderly mother who is weak. [44] On aggravation of sentence, Adv. Mapesela- crown counsel submitted that the deceased was a small boy aged six years, and his mother was aspiring for him to have a bright future, however, his life was mercilessly cut short by the accused. She submitted further that the deceased’s mother had hoped that the accused would take care of the deceased, and be a father figure to him, but the accused turned the deceased’s life into a horror movie. She submitted that the accused has fathered a child with the deceased’s mother, but the accused while giving evidence on mitigation of sentence, did not mention this fact. She finally submitted that the punishment of the accused should deter others from committing heinous acts like this accused peron. That the accused was supposed to have protected the defenceless boy. [45] I have considered that the accused is the first offender, thus not prone to offending against the law. This court has further considered that at the time of the commission of this offence, the accused was aged 38 years, and he is currently 44 years old. I have also considered that the accused is the bread winner for his elderly mother and his four sisters. The accused is a herd man and earns a monthly wage of 700.00 has been considered by the court. I have considered that the accused has apologised to his mother-in-law about his actions, and this is a sign of remorse to a certain extent, as the accused has not apologised to the deceased’s mother, who was directly affected by the death of her son. The accused stated that he was ready to raise the head of the deceased, and this court has considered that this incident took place six years ago, but the accused has not done anything in this regard. I take it that if the accused was serious and genuine about compensating the deceased’s family, he could have done so a long time ago. [46] I have considered that the deceased was a boy aged 6 years, an innocent and defenceless small boy. The accused as the stepfather of the deceased, had a moral, social, and legal obligation to protect the deceased. Ironically, he is the one who was seen at least on two occasions assaulting the deceased, who could not in any way defend himself against the accused. This court was told how the deceased was crying as the accused kicked him all the way from PW2’s house. I am settled in my mind that the accused hated the deceased. This court has considered this fact in passing the sentence on this accused person. [47] This court has considered that the deceased falls under a category of vulnerable people because he was a child. This court has taken judicial notice of murders and sexual abuse of children by adults. Children of this country need to be protected from people like this accused person. The only way to protect the children and the society is to put such people away for a long time. I have considered that the accused has taken away the life of an innocent boy from his mother. I entirely agree with Adv. Mapesela that the deceased’s mother like any other parent, was aspiring that the deceased would have a bright future. However, her dream was taken away in the early stages of her son’s life. I cannot even for a minute imagine the pain the deceased’s mother went through, when her son lost his life at the hands of the man, she trusted and loved, as they were married. PW2 told the court that when this incident took place the deceased’s mother had gone to Malibamatso. I believe she left the deceased in the care of the accused because as her husband, she hoped that he would defend the deceased and take good care of him. However, the court was sadly told how the accused treated the deceased. [48] This court has considered all these factors in meting out the proper sentence on this accused person. This court was told by PW3 that when he arrived at accused’s house, multitudes of villagers had gathered at the accused’s house. I am sure the entire community was shocked by what just happened in their community. This court should send a strong message to that community as well, that violence against the vulnerable- children will not be tolerated. This court should send a strong message to the members of public that life is God given, and anyone who unlawfully takes away the life of another person, shall meet the full might of the law. This court believes in the sanctity of life, and in instances such as this one, the court should demonstrate its displeasure through its sentences. I have further considered that after the deceased had severely assaulted the deceased, he did not take the deceased to the hospital for medical treatment nor sought help from his co-villagers. I have considered that in this regard the accused acted irresponsibly, and I have considered this fact in passing the appropriate sentence on him. [49] I have concluded that the most appropriate sentence that will fit this crime, the offender, and the interests of society in these circumstances is the following. **ORDER** 1. The accused is sentenced to twenty-five (25) years imprisonment. My Assessors Agree. **_________________** **T.J. MOKOKO** **JUDGE** **FOR THE CROWN:** ADV. MAPESELA **FOR THE ACCUSED:** ADV. TLAPANA * * * [1] 1957 (4) SA 727 (A) at 738 A-C [2] 2003 (1) SACR 134 (SCA) at para. 15 [3] 2001 (2) SACR 97 (SCA) [4] _1998 (4) SA 1224_ [5] _1995 (12) BLLR 1626 at 1648_ [6] _1994 WLR (HL)_ [7] _LLRLB 1999- 2005 105 at P. 126_ [8] [[2015] ZASCA 204](/akn/za/judgment/zasca/2015/204); [2016] 1 ALL SA 346 (SCA) at para. 26 [9] LAC 1990- 1994 44 [10] LAC 1995- 1999 405 [11] 1980 (3) SA 825 (A) [12] 1969 (4) SA 85 (A) [13] 1992 (1) SACR 628 (C) [14] LAC (1980 – 1984) 110 at 117 [15] 1990 (1) SACR 426 (A) [16] LAC 1995 – 1999 at P 423 [17] LAC 2007- 2008 245 #### __Related documents ▲ To the top >