R V Thokoane Maqelepo & 14 Others (CRI/T/0067/2024) [2025] LSHC 255 (5 December 2025)

**IN THE HIGH COURT OF LESOTHO** **CRI/T/0067/2024** **Held in Maseru** In the matter between **REX CROWN** And **THOKOANE MAQELEPO AND 14 OTHERS ACCUSED 1** **MOTHIBELI MAQELEPO ACCUSED 2** **LESANE SALEMANE ACCUSED 3** **TS’ELISO NKHOPEA ACCUSED 4** **MOKETE LEKOMOLA ACCUSED 5** **TS’ITSO THAKONG ACCUSED 6** **POLOKO PHONYOKOANE ACCUSED 7** **MOLEFI RAMOTHAMO ACCUSED 8** **RETHABILE SALEMANE ACCUSED 9** **PHUTHI MOREBOLI ACCUSED 10** **TANKISO NOTO ACCUSED 11** **THABANG NOTO ACCUSED ACCUSED 12** **THUSO KHOMOLISHOELE ACCUSED 13** **TEBOHO KHOMOLISHOELE ACCUSED 14** **POKANE LESIA ACCUSED 15** Neutral Citation: Rex vs Thokoane Maqelepo and 14 Others [[2025] LSHC 388](/akn/ls/judgment/lshc/2025/388) CRIM (05th December 2025) **CORAM** : T.J. MOKOKO J **HEARD** : 17/11/2025 **DELIVERED** : 05/12/2025 **__SUMMARY__** _Murder - Accused acted in common purpose- Elements of doctrine of common purpose satisfied- Crown witnesses succeeded in identifying the accused at the crime scene- both the accused and the crown witness were well acquainted with each other, having known each other over a long, extended period- Disparity of sentence- one accused taking a leading role in the commission of the offence- one accused, a youth, at the time of the commission of the offence_. **__ANNOTATIONS__** __CITED CASES__ _LESOTHO_ _Lefaso v Rex_ LAC 1990- 1994 _Mohlalisi and Others_ LAC (1980 – 1984) 110 _Ramaema v Rex_ LAC 2000-2004 710 _SOUTH AFRICA_ _Magmoed v Janse Van Rensburg and Others_ 1993 (1) SA 777 (A) SACR 67 (G) _R v Dladla and Others 1962 (1) SA 307_ _S v Madlala_ 1969 (2) 637 (A) _S v Mehlape 1963 S.A (2) 29_ _S v Mgedezi_ _1989 (1) SA 687_ _S v Malinga and Others_ 1963 (1) S.A 692 (A.D) _S v Ngobeni_ 1992 (1) SACR 628 (C) _S v Singo_ _1993 (2) SA 765 (A)_ _S v Shaik and Others __1983 (4) 57 (A)_ _Zingeleza Mzwempi and State Case No. 284/04_ _S v Prins_ _1990 (1) SACR 426 (A)_ __STATUTES__ _Criminal Procedure and Evidence Act 1981_ _Penal Code Act, 2010_ __BOOKS__ _Burchell and Milton, Principles of Criminal Law_ _2 nd Edition _ **JUDGMENT** **INTRODUCTION** **Count 1** [1] The accused are charged with contravening _section 72 read with section 26 (1) of the Penal Code Act, 2010_. In that upon or about the 11th day of May 2020, and at or near Sefikeng in the district of Berea, the said accused sharing a common intention or purpose to pursue an unlawful purpose together and in the pursuit of such purpose, did without lawful excuse and with the intention to damage property, damage windows and electric lamps of the house belonging to **Seemane Lebakeng** , and the said accused did thereby commit the offence of unlawful damage to property. **Count 2** [2] The accused are charged with contravening _section 40 (1) read with section 26 (1) of thePenal Code Act, 2010_. In that upon or about the 11th day of May 2020, and at or near Sefikeng in the district of Berea, the said accused sharing a common intention or purpose to pursue an unlawful purpose and in the pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of **Mokola Lebakeng** , the said accused did commit the offence of murder of the deceased **Mokola Lebakeng,** such death resulting from their act or omission, the said accused did thereby contravene the provisions of the Code as aforesaid. [3] The accused pleaded not guilty to both counts. The Crown did not accept the accused’s plea; therefore, it led evidence from witnesses. [4] The Crown Counsel applied for the separation of the trial in respect of **A7, A8, A9,** and**A11,** as they are not before the court, pursuant to _section 170 of the Criminal Procedure and Evidence Act 1981 [Act]._ This section provides that, When two or more persons are charged jointly whether with the same offence or with different offences, the court may at any time during the trial on the application of the prosecutor or any of the accused, direct that the trial of the accused or any of them be held separately from the trial of the other or others of them, and for that purpose may abstain from giving a judgement as to any of such accused. [5] On 2nd June 2025, the Crown applied for warrants of arrest for **A7, A8, A1,** and**A14,** as they were not present before the court, and the reasons for their absence were not furnished by their lawyer. Consequently, the court granted a warrant for their arrest. On 22nd September 2025, A14 appeared before the court, and the court cancelled the warrant for his arrest after his lawyer furnished a valid excuse for his absence on the previous occasion. The Court then granted the Crown’s application for the separation of the trial of **A7, A8, A9,** and**A11** from the others. **CROWN’S CASE** **ADMISSIONS** [6] The defence admitted the following statements and reports, in terms of _Section 273(1) of the Criminal Procedure and Evidence Act, 1981._ The section 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._ **1\. Post-Mortem Report** [7] It shows that death was due to a head injury with skull fracture and severe brain damage. **Remarks** : The Deceased was assaulted by the public in his village on 11/05/2020, because he was suspected of practising witchcraft. He died on the scene of the assault. History from an investigating Police Officer. **External Appearances** : Body of a male adult with post-mortem burns all over the body. **FORM A**. Left side of the head: Razed laceration on the left ear. Right Side of the head: Rassed skin laceration 3 cm long. On opening up the scalp, there was a depressed and comminuted fracture of the left frontal, parietal, and temporal bones with severe laceration of the underlying brain tissue by bone fragments. **Skull Anterior** : depressed comminuted fracture of the left fronto-parietal temporal bones. The post-mortem report was labelled Exhibit “A”. **2\. Identifying Statement of Seemane Lebakeng** [8] He stated that on 20th May 2020, he identified the body of Mokola Lebakeng. He observed that the deceased was burnt all over the body and had sustained a severe head injury. The statement was marked Exhibit “B”. **3\. Report of Arrest by D/W/P/C Kabi** [9] She stated that on 11th May 2020, she received a report about the murder of Mokola Lebakeng, who had been assaulted and burned by members of the public. Their investigations led to the accused's arrest. The statement was labelled Exhibit “C”. **4\. Scene of Crime Report by D/P/C Tsumane** [10] He stated that on 11th May 2020, he went to the scene of the crime, accompanied by P/C Makhotsa, P/C Thamae, P/C Matela, and P/C Mathaba. He stated that headman Mahlomola Ralepoma took them to the scene of the crime and showed them the body of the deceased. He observed that the deceased sustained open head injuries, had a fractured skull, and brain oozed outside. They found the deceased in the unploughed field. He observed blood-stained stones next to the deceased, and the deceased had been burned on the body. The deceased was wearing black gum boots and had injuries all over the body. The injuries were still visible, though the deceased was burned. He observed a considerable amount of blood on the door of the single-room house. The windows of the house and the TV had been broken. Eventually, they took the deceased to the mortuary. The report was marked Exhibit “D”. **5\. Report of Seizure by D/P/C Tsumane** [11] He stated that on 11th May 2020, he proceeded to Sefikeng Ha Pulumo, following the report of murder. He instructed suspects to report themselves at the Police Station on 15th May 2020, and to bring along the alleged murder weapons. The accused reported themselves and brought the items appearing against their names. He seized these items and filled LMPS 12. The report was labelled Exhibit “E”. **6\. LMPS 12** [12] It shows six papoliri sticks, one kolitsane stick, two lebetlela sticks, and one leoka stick. It was marked exhibit “F”. **PW1- Tsepo Khomolishoele** [13] He testified that he resides in Sefikeng-Sepolo. He stated that he studied up to Form C. He knows the accused before the court, as some are his co-villagers, while others are his relatives. [14] He stated that on the 11th May 2020, at approximately 07:00 pm, he was at Sefikeng- Sepolo. He was at the home of Pitso, accompanied by Thato Matlosa. While there, they heard noise coming from the deceased's house and hurried over. At the deceased’s homestead, there were three houses, comprising a roundavel, a flat-roofed one, and a shack located next to the gate. Usually, the deceased lived there alone, but on the fateful night, he was in the company of his brother, Seemane Lebakeng, Seemane’s wife, and their children. When he arrived at the deceased’s yard, he stood next to the shack. He saw A2 behind the shack, while A1 was in front of the house. He stated that A1 was talking loudly, as he instructed the deceased to come out of the house, because he was looking for him. The deceased came out of the house and fled. He stated that A1 was talking in an angry tone. The deceased exited the yard, and people chased him. Ultimately, they caught the deceased and assaulted him. He clarified that the villagers, comprising of the youth and adults, chased the deceased. He went away with Thato Matlosa, and the following day, he heard that the deceased had died. [15] During cross-examination, it was suggested to the witness that many villagers had gathered at the crime scene, to which the witness agreed. The witness confirmed that the villagers chased the deceased and that he did not identify the people who chased the deceased. Further under cross-examination, the witness confirmed that he did not witness what happened to the deceased due to the darkness on the fateful night. Under re-examination, the witness reaffirmed that he did not identify the people who attacked the deceased. **PW2- Mahlomola Ralepoma** [16] He testified that he resides at Sefikeng Ha Rammoso. He is familiar with the accused in the courtroom. The deceased was his nephew, and he mentioned that the deceased grew up with some of the accused, as they were of the same age and attended school together. The deceased’s mother was his younger sister. On the material date, the deceased was living with his older brother, Seemane Lebakeng, and Mampolokeng Lebakeng, as well as their children. [17] On 11th May 2020, he was at his home sleeping and was awoken by an alarm raised by his grandson, who said people were killing the deceased, and asked for assistance. He went outside and identified A1's voice emerging from his sister’s house. He proceeded to his sister’s house, but was forced to return home when stones were thrown at him, and the lights at his sister’s house had gone off. He then called Molisa ea Molemo radio station to alert the Police about the situation. [18] Later, when the situation had calmed down, he went to Seemane Lebakeng’s house, where he found ‘Matsepang Salemane and ‘Marealeboha Matlosa. He asked them where the deceased was, and they told him that he was at ‘Mathapelo Thakong’s home. After a short time, he saw someone using a torch approaching the crime scene. Shortly thereafter, two other individuals arrived at the crime scene. He observed that these people were doing something to the deceased, who was lying on the ground. He then saw the deceased engulfed in flames, as he was set alight. He testified that because of the light from the fire, he identified A15, A1, and A4 as the people who set the deceased alight. He then waited for the Police at the place he had taken cover. [19] He testified that the back and front windows of the house and the TV were broken, and there were many stones and blood in the house. Eventually, the Police arrived and took the deceased away. He testified that he observed that the deceased had fallen on his face, and sustained wounds on the back, front, and side of the head, and the back of the body was burned. [20] During cross-examination, it was put to the witness that he did not tell the court how the three men who approached the deceased were dressed, and the witness agreed with this suggestion. The witness was then asked how far he was when the deceased was set alight. The witness replied that he was near the crime scene. The witness confirmed that many people had gathered at the crime scene. [21] During cross-examination, it was suggested to the witness that A1 did not say the words the witness claimed A1 had uttered. The witness replied that he was listening and had heard A1 utter those words. It was then suggested to the witness that he did not mention what had motivated the death of the deceased, and the witness agreed with this suggestion. It was further put to the witness that A1 denied that he set the deceased alight. The witness replied that he did not know if A1 took part in setting the deceased alight, but A1 was present at the crime scene when the deceased was set alight. [22] During cross-examination, the witness was asked if there were only three people at the crime scene, and the witness replied that he identified three people when they set the deceased alight. It was then suggested to the witness that many people had gathered at the crime scene. The witness replied that many people had gathered there, and he managed to identify the three people he mentioned because of the firelight. [23] Further, during cross-examination, it was suggested to the witness that A15 went to the deceased’s house because he had heard noise emerging from the deceased’s house. The witness replied that he saw A15 near the deceased. The defence then suggested to the witness that A15 did not set the deceased on fire as he had no reason to do so, and the witness replied that A15 participated in the deceased’s death. The defence suggested that A15 did not attack the deceased at all, and the witness replied that he saw A15 near the deceased. [24] During re-examination, the witness clarified that he identified A1 by his voice, because he knew him very well. He stated that he heard the words that A1 had uttered. The court asked the witness to estimate the distance between his location and the crime scene. The witness estimated that the crime scene was approximately the same distance as from the witness box to the door leading into the courtroom. The court then instructed the witness to walk to the door he had indicated, and he counted 17 paces to reach it. [25] Next, the court inquired about how long the witness had known the three individuals he had identified. The witness responded that he had watched them grow up, as they were all much younger than he was. The court then asked the witness what might have caused the fire. The witness suggested that it could have been either petrol or diesel, noting that the deceased's clothes had been burned except for the gum boots. Finally, the court asked the witness about the size of the flames. The witness responded that the flames were not very large, as they stopped once the shirt was completely burned. **PW3- Seemane Lebakeng** [26] He testified that he resides at Sehlabeng sa Thuathe in the Berea district and that in 2020, he resided at Sefikeng Ha Pulumo. He testified that he knows the accused as they were his co-villagers at Sefikeng. PW2 is his uncle, while the deceased was his younger brother. He testified that he was staying with his wife, Mampolokeng Lebakeng, two children aged 7 and 2 years old, and the deceased at his home at Sefikeng. He emphasised that he knew the accused, as they grew up together in the same village. For example, he stated that he herded livestock together with A1 as they grew up. He demonstrated further that he was well acquainted with the accused; therefore, none of the accused was a stranger to him. [27] He further stated that PW2 was well acquainted with the accused, as they were co-villagers. He stated that on 11 May 2020, at approximately 07:00 pm, he was at his home, accompanied by his wife, his two children, and the deceased. They were in a single room made of concrete blocks. There are three structures in the yard, comprising the shack located near the gate, a roundavel house, and the single room house, which he had occupied on the fateful evening. [28] While they were preparing supper, he heard a dog barking, prompting him to go outside to investigate. He saw A1 entering the yard, holding a big rock. He then inquired from A1 what had happened. He stated that A1 replied that he had not come there for him, but he had come for the deceased, as he was going to kill him. He stated that A1 appeared to be drunk and was holding a large rock. He said he asked the deceased to come out so that he could address A1’s issues. A1 then turned back and walked away, and uttered the following words: “**Hey men, come out from your hiding place, let’s kill this person.”** He stated that A1 spoke loudly and seemed in a fighting mood. He further stated that A1 was speaking as if he were addressing his children because of the way, he issued instructions. [29] Immediately, people emerged and threw stones at the house. In the process, the outside light bulb broke, and the light went off. Others went around the back of the house, and he heard the back windows breaking. He told A1 to instruct his mob to stop damaging his property, and A1 replied that he would pay for the damage and that he was on a mission to kill the deceased. He testified that he tried to enter the house to protect his family, and begged A1 to stop the attack; however, A1 persisted that he wanted to kill the deceased. As he left A1, he felt that he was being hit from behind, then A1 held him together with people he did not recognise. [30] He testified that while A1 and other unidentified people held him, others threw stones into the house. He stated that he identified A11 hitting the deceased with the stick at the door, and that at the door, he identified A3 and A2. He then inquired from A2 why they attacked him, and A2 replied that the deceased must be killed. He testified further that he identified A10, A8, and A12. [31] He further testified that he identified A10, who threw stones into the house through the back window, and next to A10, he saw A8 and A12. He stated that the curtains fell because stones were thrown into the house through the windows. He stated that A1 was in charge of the group, as evidenced by the fact that A1 arrived at his home alone and then gave instructions to those who were hiding, telling them to come out, and further instructed them to kill the deceased. He further stated that A1 was in charge because his wife requested permission from A1 to take the children out of the house. A1 then instructed the mob to stop the attack, and they complied. After the children were removed from the house, A1 whistled for the mob to restart the attack. He also instructed the mob to take the deceased out of the house and kill him. He stated further that at that stage, he recognised A15 standing in front of the house, accompanied by A7, A4, and other unidentified people. [32] He testified that the deceased emerged from the house and fled through the maize field, but did not run far before falling in the field. The mob then chased the deceased, while he remained with A1, and they inspected the damage done. In the process, he heard that the deceased was being assaulted. After a short while, the assaults stopped. A1 then left and went to the place where the deceased had fallen. Later, he heard A1 saying: “**Hey men, let us go, you have worked well. I am going to buy liquor.”** Others remained behind, and the assaults on the deceased had resumed. Another group returned to the crime scene, and he saw A4 holding a container of fuel, though he did not know whether it was petrol or diesel. He witnessed A4 sprinkling fuel on the deceased and setting him alight, and he further saw A1 and A15 near the deceased. [33] He testified that PW2 arrived after the deceased had been assaulted on the field, and before the deceased was set alight. He stated that PW2 was already there when the deceased’s body was ignited. [34] He testified that at the crime scene, he found big rocks and broken sticks. He observed that the deceased had sustained a big wound on the head, and the brain oozed from the wound. He further observed the deceased’s teeth on the ground. He further observed that the deceased’s body had been severely burned, especially the head. [35] He testified that none of the accused approached him regarding this tragic incident; however, A1’s mother did contact him and replaced the damaged items, including the television. That was the last time he heard from her or A1. The witness stated that he will only find closure when justice is served in this matter. Lastly, the witness mentioned that he relocated to Sehlabeng sa Thuathe after the tragic incident because his original home had become mentally and emotionally traumatic for him and his family. [36] During cross-examination, it was suggested to the witness that PW1 and PW2 testified that it was dark on the fateful evening, and the witness confirmed this suggestion. It was further suggested to the witness that PW1, PW2 and the witness agree that villagers had gathered at the crime scene, and the witness agreed with this assertion. The defence then put it to the witness that the outside light was still on when the witness and A1 conversed outside the house, and the witness agreed. The witness was then asked about the distance between himself and A1, and he replied that A1 was approximately 3 meters away. When asked about his location, the witness replied that he was standing at the door and added that A1 was talking about killing the deceased. [37] The defence suggested to the witness that he could not identify the people who attacked him since the light bulb had been broken. The witness replied that he could not, but eventually he identified the attackers when they came within range of the light emanating from inside the house. It was then suggested to the witness that his testimony regarding the light coming from inside the house was an afterthought, and the witness denied this assertion, stating that he had seen the attackers. The defence further asked the witness about his location when he saw A10. The witness replied that he was standing at the door, where A1 was holding him. He added that the back window was exactly opposite the door. The witness further stated that the assailants broke the exterior light bulb, but light was still emanating from inside the house. [38] During cross-examination, the defence asked the witness how far from his location the deceased fell, and the witness replied that it could have been approximately 20 meters away. It was suggested to the witness that A1 went to the witness’s home because of an alarm there, and that when he arrived, he found many people gathered. The witness refuted this suggestion. It was suggested to the witness that when A1 was about to reach the door, the witness came out. The witness similarly refuted this assertion. It was suggested to the witness that A1 inquired from him why stones were being thrown at his house, and the witness denied that A1 posed this question to him. [39] The defence suggested to the witness that the deceased emerged from the house and ran away, and the witness disputed this version. The defence put it to the witness that the witness’s son then followed the deceased, and the witness replied that he does not have a son, because his two children are girls. It was then suggested to the witness that A1 grabbed the witness’s son from the attackers, and that he handed the son to the witness after the attackers had chased the deceased, and the witness refuted this version. [40] It was suggested to the witness that A2 was walking home when he saw people running towards the location where the deceased had fallen. The witness denied this version and stated that A2 was part of the mob that chased the deceased. [41] The defence suggested to the witness that A4 went to the witness’s home due to the alarm raised there, and that the witness replied that A4 arrived later and participated in the killing of the deceased. It was then put to the witness that A4 did not take part in the killing of the deceased, and the witness denied this assertion. [42] During cross-examination, it was put to the witness that, during examination in chief, he stated that, while A1 held him, he did not identify any other people who held him. The witness replied that he did not identify them when A1 held him. The defence then put it to the witness that it was surprising that he identified A10, who was at the back of the house, but failed to identify the people who held him. The witness replied that he was able to identify A10 by the light emanating from the house, as A10 stood behind the window opposite the door where he was located. It was further suggested to the witness that it was improbable that he saw A10, who was behind the house, but failed to identify the people who held him. The witness replied that the people who held him were behind him in the dark and that his focus was on securing the safety of his family members. The defence put it to the witness that A10 went to the scene due to the alarm raised, and that he did not participate in the killing of the deceased. The witness denied this assertion and stated that he saw A10 throwing stones at the deceased. It was further suggested to the witness that in his statement to the Police, he did not mention that A10 participated in the killing of the deceased. The witness stated that at the time he made the statement to the Police, he was still confused, but upon deep reflection, he recalled that A10 was present at the back of the window. The defence then suggested to the witness that he did not mention A10 because A10 did not take part in the killing of the deceased, and the witness replied that at that time he was still traumatised by what he had witnessed. [43] During cross-examination, it was suggested to the witness that A3 went to the crime scene due to the alarm raised, and that A3 had no reason to attack the deceased. The witness disputed this suggestion and stated that A3 was present at the crime scene and took part in the killing of the deceased. Lastly, the defence put it to the witness that the accused did not kill the deceased, and the witness replied that the accused had their own reason for killing the deceased. During re-examination, the witness was asked about the motive for killing the deceased. The witness replied that A1 told him that the deceased had bewitched one of his siblings. **PW4- Thato Matlosa** [44] He testified that he resides in Sefiking-Sepolo and that he is literate, having studied up to Form B. He stated that he knows the accused, as they are his fellow villagers, and he also knew the deceased during his lifetime. [45] On 10th May 2020, he testified that he was at home when Tsepo Khomolishoele arrived and asked him to accompany him to the shop. While they were on their way, they heard noise coming from Tsepo’s home, so they quickly rushed over there. Upon arrival, they learned that the commotion was taking place at Ha Pulumo. [46] They headed to Ha Pulumo, where they found a large crowd gathered. They stood by a shack and encountered A2 and A3. He mentioned that he was standing next to A2 when he saw A1 and PW3 near the forecourt. A1 called out for the deceased, stating he was looking for him. PW3 urged the deceased to come out, explaining that those individuals might damage his property. He stated that the deceased replied that he was not coming out because those people were going to kill him. [47] He testified that he heard stones being thrown at the house, which broke the windows. They left the scene, and shortly thereafter, they heard people behind them and saw the deceased running away. They stayed where they were and witnessed the attackers catch up with the deceased in a field belonging to Mathapelo. He heard the attackers assaulting the deceased with sticks. Afterward, the attackers left the deceased there, and he went away. The following day, he learned that the deceased had died. [48] During cross-examination, the witness was asked whether the incident occurred in darkness, and the witness confirmed it. It was suggested to the witness that he had only heard the sound indicating that the deceased was being assaulted, and the witness confirmed this. The defence then suggested to the witness that he had not identified the attackers because it was dark, and the witness agreed. [49] During cross-examination, it was suggested to the witness that A3 went to PW3’s home due to the commotion that occurred there. The witness replied that he was not aware of that. The Crown then closed its case. **DISCHARGE APPLICATION.** [50] The defence then moved an application for the accused's discharge pursuant to _section 175(3) of the Criminal Procedure and Evidence Act, 1981._ This section provides that, _if, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty._ [51] The court, after careful consideration of the evidence presented before the court by the Crown, found that the Crown failed to establish any prima facie against the following accused, to wit: **A5, A6, A13** , and **A14** , as such the Court found that there is no evidence that these accused persons committed the offence with which they are charged, and are accordingly acquitted. **DEFENCE’S CASE** **DW1- Thokoane Maqelepo** [52] He testified that he resides at Sefikeng- Sepolo, and that he knows all the co-accused before the court. [53] He testified that on 10th May 2020, he travelled from his home to his brother's home (A2). On the way, he heard noise coming from PW3’s house, so he decided to investigate. When he arrived at PW3’s home, he found many people gathered there. He called for PW3, who emerged from the house. He asked PW3 what was happening after he saw the children crying. At that point, PW3’s wife joined them at the forecourt, and he then heard the back windows breaking. PW3 informed him that the attackers were looking for the deceased. [54] He stated that the deceased came out of the house and ran away while unidentified individuals pursued him. He stayed behind with PW3 to assist the children. He mentioned that the children had not been harmed and that he took one of the children and covered them with a blanket, while PW3 carried the other child. [55] He testified that PW3's wife had invited them into the house to see the damage. After that, he returned home. The witness denied being the first to arrive at PW3's house, but insisted he was the one who called PW3 outside. He also denied allegations that he was carrying a stone and that he appeared drunk, stating that he had already stopped drinking for a long time. [56] Additionally, the witness rejected the claims that he had stated he was looking for the deceased and intended to kill him. He denied PW3's testimony that he was the ringleader of the mob that attacked the deceased and refuted allegations that he had participated in planning the killing. Finally, he denied bringing the fuel used to set the deceased on fire and testified that he would not have approached the crime scene due to his phobia of injuries. [57] During cross-examination, the witness was presented with the suggestion that he never mentioned calling out to PW3 when discussing his version of events, and he agreed with this assertion. The prosecution contended that PW1's testimony, which stated that the witness stood in PW3’s forecourt, angry and shouting at the deceased, implicated him, to which the witness also agreed. It was then suggested that the witness did not challenge PW1's evidence, a claim that the witness did not dispute. [58] Furthermore, during cross-examination, it was put to the witness that he had known both the deceased and PW3 for a long time, having grown up together, and he agreed. The prosecution suggested that he could identify their voices, to which the witness also agreed. In a related context, the prosecution asserted that the witness was very familiar with PW2, to the point of identifying his voice, and the witness confirmed that he could. Lastly, it was suggested that both PW2 and PW3 could similarly identify the witness's voice, and the witness concurred. [59] It was suggested to the witness that PW2 had testified that he knew both the witness and PW3, as he had raised them in the village. Therefore, he could recognize their respective voices, and the witness agreed with this statement. The witness also confirmed that when he inspected the damaged property alongside PW3, the house's lights were still on. [60] During cross-examination, it was suggested to the witness that, earlier, during the cross-examination of PW3, a statement was made indicating that the witness would claim that when he was near PW3's door, PW3 came out. It was then brought to the witness's attention that he had testified that, upon arriving at PW3's house, he called out to PW3, who then came outside. The witness acknowledged that his account differed from what his counsel had presented to PW3 during that earlier cross-examination. [61] The witness was questioned about the testimonies of PW1, PW2, PW3, and PW4, who all claimed that he was shouting at the forecourt of PW3’s house. The witness confirmed that he was indeed at the forecourt, calling for PW3. He was then asked if the deceased had come out of the house, to which he replied that PW3 had pulled the deceased out. The witness was reminded that during his examination-in-chief, he had stated that the deceased emerged from the house and ran away, and he acknowledged that this was correct. [62] The witness was asked to recall his earlier testimony during examination-in-chief, in which he stated that PW3 approached him regarding the repair of his damaged property. It was then suggested that PW3 had testified that A1's mother approached him and agreed to replace his damaged property. The witness accepted this suggestion, acknowledging that PW3's account had not been challenged. [63] Additionally, it was pointed out to the witness that during cross-examination, the defence counsel had presented to PW3 the notion that when the deceased exited the house, PW3's son followed him. However, during his own testimony in chief, the witness mentioned that he had entered the house to check on the children. The witness was then prompted to recognize that his account differed from the one presented to PW3 by the defence counsel, and he concurred with this observation. [64] The witness was presented with the claim that PW3 stated he saw the witness along with A2, A3, A4, A7, A8, A10, A11, A12, and A15. Additionally, PW4 claimed he saw A1 and A2 at the crime scene, and PW1 recounted the individuals he observed. It was then suggested that none of these witnesses mentioned anyone wearing a balaclava. The witness agreed with this suggestion, confirming that no one at the scene was seen wearing a balaclava. Finally, it was proposed to the witness that on the day of the incident, he was at PW3’s house, as corroborated by four crown witnesses, and that he was leading the mob that attacked the deceased and damaged PW3’s property. The witness disagreed with this assertion. **DW2- Mathibeli Maqelepo** [65] He testified that he resides at Sefikeng- Sepolo, and that he is a bricklayer. He stated that on 10th May 2020, at around 07:30 pm, he was on his way home from work when he heard a noise coming from the maize field. He then went to PW3’s home stead and proceeded to the shack. He saw people and heard stones being thrown. He testified that he went to PW3 and inquired about what was happening, and PW3 replied that he was under attack. He stated that PW3 instructed the deceased to come out of the house, as the attackers were damaging his property. He testified that PW3 and his wife instructed the deceased to leave the house; however, he advised PW3 and his wife that it was not safe for the deceased to come out of the house. He stated that the deceased got out of the house and ran away, and people chased him. He stated that he left PW3’s house thereafter. [66] During cross-examination, the witness was asked if he saw anybody in PW3’s yard, and he replied that he saw A1, PW3, and PW3’s wife, and that A1 was talking to PW3. The witness was asked about his location, and he replied that he was at PW3’s forecourt. It was suggested to the witness that PW1 testified he saw the witness behind the shack, and that the defence did not challenge this evidence; the witness agreed. It was further put to the witness that PW4’s evidence that he saw the witness standing behind the shack with A3 was not challenged by the defence, and the witness confirmed this assertion. [67] It was suggested to the witness that PW3 testified that among the people who attacked him, he saw the witness, and called the witness by name, asking him why they attacked him, and the witness replied that they were not looking for PW3, but were looking for the deceased, who should be killed. It was then suggested to the witness that the defence did not challenge this evidence, and the witness agreed that it did not, adding that it was not true that he had chased the deceased. **DW3- Lesane Salemane** [68] He testified that he resides at Sefikeng- Sepolo. He testified that on 10 May 2020, he was at Sefikeng Ha-Fako and met Thato Matlosa (PW4), who informed him of an alarm raised at Ha-Pulumo. They then travelled to Ha-Pulumo, and while they were at Ha-Makhoali stream, they heard the voices of people emerging from the deceased’s home. They stood at the shack with Tsepo Khomolishoele (PW1). After a short while, he heard someone saying “**Thiba** ”. He testified that, from where he stood, he recognised A1 and PW3, who were talking. He disputed the suggestion that he was among those who attacked PW3. He further denied the allegation that he attacked the deceased. He added that A8 was the individual who shouted the word: “**Thiba** ”. Lastly, he testified that he later left, accompanied by PW1 and PW4. [69] During cross-examination, the witness was asked to confirm whether PW1 joined them on the way to PW3’s home, and the witness confirmed this. It was put to the witness that PW1 and PW4 did not state that they were ever in the company of the witness, except that PW4 stated he saw the witness with A3 behind the shack, and the witness denied this assertion. The crown then put it to the witness that the defence did not challenge the evidence of PW1 and PW4 in this regard, and the witness agreed with this suggestion. The crown then put it to the witness that PW1 and PW4 did not mention being in the witness's company, because the witness was never in their company, and the witness insisted that he was. **DW4- Tseliso Nkhapea** [70] He testified that he resides at Sefikeng-Sepolo, and that he is illiterate. He is employed as a herdman. On 10 May 2020, he was at his home when he heard a noise at Ha Pulumo. He travelled to Ha-Pulumo to investigate what was happening. When he arrived at PW3’s house, he went to the forecourt, and he heard people talking, but could not hear what they were talking about. He then remembered that he had not kraaled the calves, which prompted him to return home. [71] He denied both PW2 and PW3’s evidence that he was at the crime scene where the deceased was set alight. Lastly, he disputed the evidence that he was among the individuals who broke PW3’s windows. [72] During cross-examination, it was put to the witness that PW3 saw the witness in front of PW3’s house, and the witness agreed with this suggestion. It was then put to the witness that PW3 stated he had seen the witness, A15 and A7, but the witness disputed this claim and added that it was correct that he was in front of the house. It was suggested to the witness that all the crown witnesses, together with A1, agree that A1 was present at PW3’s forecourt, and the witness replied that he did not see A1 there. It was put to the witness that PW2 testified that he identified the witness at the crime scene where the deceased was set alight, and the witness disputed this evidence. It was then suggested to the witness that, during the cross-examination of PW2, the witness had not been removed from the scene. The witness replied that he was not at the crime scene as he had already returned home. **DW5- Thabang Noto** [73] He testified that he lives in Ha-Moeketsi and that in 2020, he resided in Sefikeng Sepolo. He stated that on 10th May 2020, at around 7:00 pm, he was at home when he heard noises coming from Ha-Pulumo. This prompted him to go to Ha-Pulumo, where he realized the noise was coming from PW3’s home. A crowd had gathered there, and A1 informed PW3 that their ties had been cut. [74] He testified that on his way to PW3’s home, he encountered A8. He mentioned that there was a commotion at PW3’s house, and during the scuffle, he was hit on the shoulder by a stone. He noticed an unidentified person leaving the house. After that, he came across A5, A14, and A10 and inquired about what was happening; they informed him that they had responded to the alarm. He then left the scene, accompanied by A10, and heard someone being assaulted with sticks. He denied attacking PW3 or murdering the deceased. He also disagreed with PW3’s account that he was behind the house or that he threw stones at the house. [75] During cross-examination, the witness acknowledged that he was in PW3’s yard but denied being behind the house. It was pointed out to the witness that PW3 claimed to have seen him with A10, A8, A5, and A14. The witness confirmed their presence but stated that he had gone to PW3’s home in response to an alarm raised there. [76] Additionally, the witness was informed that PW3 mentioned the interior light illuminating outside the house. After evading the question several times, the witness ultimately denied that the interior light shone outside, even though the windows had been broken and the curtains had fallen. [77] The court then asked the witness if he and PW3 were well acquainted. The witness affirmed that they knew each other well. Regarding how long he has known PW3, he stated that he has known him since 1999. **DW6- Pokane Lesia** [78] He testified that he resides at Sefikeng-Sepolo. He further stated that in 2020, he was 15 years old. He testified that on 10th May 2020, he heard noise emanating from ‘Matsepang’s home. He went to ‘Matsepang’s place accompanied by ‘Mamokete Lekomola and her daughter. When they arrived there, ‘Mamokete Lekomola called PW3’s wife, and they talked, and shortly after, ‘Mamokete returned and told them that she was going to rescue PW3’s children. He testified that the people gathered there were angry. He heard stones being thrown at the house. He then left with PW3's children. He stated that he noticed ‘Matsepang, Linkeng Matlosa, Salemane, PW1, PW4, A6, and one Tselisang at PW3’s house. He disputed PW2’s evidence that he was at the scene where the deceased was set alight. He further disputed claims that he broke PW3’s windows. [79] During cross-examination, it was suggested to the witness that he was well acquainted with PW2, and the witness replied that they knew each other well and that PW2 raised him. Further, during cross-examination, it was suggested to the witness that PW2 said he saw the witness, A1, and A4 setting the deceased alight, and it was then suggested to the witness that during cross-examination of PW2, the defence did not challenge this evidence. The witness replied that he was not there when the alarm was raised. It was then put to the witness that the defence counsel did not put his version to PW2, to which the witness agreed. [80] During cross-examination, it was put to the witness that the defence did not challenge PW3’s evidence that he saw the witness, A4 and A7, in front of his house, and the witness agreed with this assertion. The crown then put it to the witness that his version was an afterthought, but the witness denied this. [81] It was further suggested to the witness under cross-examination that the witness did not return home, but he went to the scene where the deceased was assaulted, and the witness refuted this claim. [82] The court explained to the witness that PW2 told the court that he saw someone sprinkling a liquid substance on the deceased, and the deceased was set alight, and that when the flames engulfed the deceased, he saw the witness and A15, and the witness disputed this evidence. The court then asked the witness if he knew PW3 well, to which the witness replied that he was not well acquainted with PW3, because PW3 did not reside at his home on a full-time basis. The court then asked the witness if he could recognize PW2 if he were present in court, and the witness confirmed that he could. The court further inquired whether PW2 was indeed familiar with him, to which he agreed. The defence then closed its case. **SUBMISSIONS BY THE CROWN** [83] Adv. Mokuku, the defence counsel, submitted that the defence had admitted the post-mortem report, the scene of crime report by Police officer Tsumane, the LMPS 12 report, the seizure report by Police officer Tsumane, the arrest report by Police officer Kabi, and the identifying statement of Seemane Lebakeng. [84] Adv. Mokuku submitted that the accused did not deny being present at the crime scene, as they all took the witness stand and agreed they were there. He further submitted that four crown witnesses placed the accused at the crime scene. He argued that the crown witnesses witnessed the accused taking part in the attack and pursuing the deceased to the second crime scene, where the deceased was set alight. He argued that the crown witnesses specifically referred to the statements made by A1 at the crime scene, in the presence of the other accused, in relation to the deceased. [85] He further argued that the crown witness heard A1 saying that they were there for the deceased, who should be killed; therefore, the deceased should be ejected from the house. He submitted that the accused threw stones at PW3’s house, and they attacked the deceased while he was at the door. He submitted that each of the accused committed acts which were in furtherance of the attack on the deceased. The Crown argued that the accused, the deceased, and the witnesses were so familiar with each other that they could recognize each other’s voices. He submitted that some crown witnesses identified the voices of some of the accused. He argued that PW3 identified certain accused at his house because of the light emanating from it. [86] Adv. Mokuku submitted that on the fateful night, A1 was the leader of the mob and directed its actions. He submitted that there was evidence that A1 called on the people who were hiding to come out from hiding and attack PW3’s house. He argued that A1 issued orders to the mob to stop the attack when PW3’s children were evacuated from the house, and as soon as the evacuation ended, he issued instructions to resume the attack. The crown submitted that the deceased was pursued to the field where he fell. He argued that PW2 and PW3 saw the accused A1, A4, and A15 setting the deceased alight. He submitted further that these witnesses heard A1 informing the accused that they had done a good job; therefore, he was going to buy alcohol for them. The crown submitted that the accused acted in common purpose in committing murder and malicious damage to property. **SUBMISSIONS BY DEFENCE** [87] Adv. Mohale, the defence counsel, submitted that the evidence of PW1 and PW4 shows that there were people gathered at PW3’s house. He submitted that when these witnesses arrived at PW3’s house, they encountered A1 and A2, who confirmed that there was a commotion at PW3’s house. He argued that PW1 and PW4 did not say that A1 and A2 ever chased the deceased or threw stones at the house. He further argued that PW3 did not recognise people who held him, except for A1. He argued that PW3 had incorrectly identified the accused, just as he had about one Moeketsi. He argued that the accused do not dispute that they were present at the crime scene but challenge the evidence that they took part in the commission of this offence. Adv. Mohale submitted that, given the many people gathered at PW3’s house, PW3 was mistaken about the accused's identity, coupled with the fact that it was dark. He therefore submitted that the crown failed to establish beyond a reasonable doubt that the accused committed the charged offences. [88] Adv. Mohapi, the defence counsel, submitted that it is common cause that the accused were present at the crime scene. He argued that the question is whether their mere presence there meant they participated in the commission of the crime. He submitted that their mere presence there did not make them complicit in the commission of the charged offence. He submitted that similarly, the presence of PW1 and PW4 at the crime scene does not make them complicit in the commission of the crime. Adv. Mohapi agreed with Adv. Mohale’s argument that PW3 was mistaken about the identity of one Moeketsi Matteus, therefore, the same mistaken identity should be extended to the accused. He submitted that the fact that many people had gathered at PW3’s house, coupled with darkness, made it difficult for PW3 to correctly identify the people who attacked him. Adv. Mohapi argued that PW4 did not recognise people who threw stones at the windows and chased the deceased. He therefore submitted that the crown failed to prove its case beyond a reasonable doubt; as such, the accused should be acquitted. [89] The crown alleges that the accused shared a common intention or purpose, performed an unlawful act with the intention of causing the death of Mokola Lebakeng, and intentionally damaged the property of Seemane Lebakeng. It is critical to point out that all the accused agree that they were at PW3’s house, where the initial attack took place. The accused persons deny that they were present at the second crime scene where the deceased was set alight. It is further worth noting that the defence submitted that the Crown witnesses were mistaken about the accused's identity due to the darkness, and that many people had gathered at PW3’s house. [90] The relevant issue for this court's determination is whether the accused acted in concert in committing the crimes for which they are charged. **THE DOCTRINE OF COMMON PURPOSE** [91] I wish to refer to the case of **_Ramaema v Rex**[1]** _**where the following was said: “… _but I should be prepared however, to say that the classical meaning of the doctrine of common purpose is that, where two or more persons associate together or agree in a joint unlawful criminal undertaking, each one of them will be responsible for any criminal act committed by the other or others in the furtherance of their common purpose. In such a situation the acts of one are the acts of the other(s). See**S v Shaik and Others******[2]****. In a case where an accused has been shown to have joined a conspiracy, if he is to escape criminal liability, it must be proved as a fact that the accused in each case dissociated himself from the common design before it was executed.”_ [92] In the **_Ramaema’s case**[3]**_** , the court quoted with approval what was stated in the case of **_S v Madlala_**** _**[4]**_****_,_**_**Holmes JA**_ expressed himself in the following terms: _“It is sometimes difficult to decide, when two accused are tried jointly on a charge of murder, whether the crime was committed by one or the other or both of them, or by neither. Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof-_ 1. _that he individually killed the deceased, with the required dolus, e.g. by shooting him; or_ 2. _that he was a party to a common purpose to murder, and one or both of them did the deed; or_ 3. _that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing the death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequences, and it occurred; see**S v Malinga and Others****[5]**; or _ 4. _that the accused must fall within (a) or (b) or (c)- it does not matter which, for in each event he would be guilty of murder._ [93] The leading case as regards the invocation of the doctrine of common purpose is**_S v Mgedezi**[6]**_**. “ _In the first place he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common purpose with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea, so in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.”_ [94] In terms of this doctrine, liability for the commission of a crime is by attribution to individuals who partook in the crime, _Burchell and Milton, Principles of Criminal Law_[7]_._ For attribution of liability to be imposed, the accused’s participation in the crime should flow from either of the following scenarios: (a) by a prior agreement, express or implied, between the participants to commit an offence, (b) it may arise from impulsive participation (without prior agreement), **_Magmoed v Janse Van Rensburg and Others_**** _**[8]**_**.**** In addition to participating impulsively, there must be a requisite state of mind (_mens rea_). The accused must have intent, in common with other participants in the crime charged and must have actively associated himself with the conduct of other participants to achieve a common purpose of committing a substantive crime charged _.**S v Singo******[9]****_. [95] The requisites of the doctrine of common purpose enunciated from the authorities referred above are that: a) in the absence of prior agreement each of the accused must be present at the scene, and he must have been aware of the assault on the deceased. (b) Must have intended to make a common purpose with those who were actually perpetrating the assault. (c) Must have manifested his sharing of the common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of others. (d) Must have had the requisite _mens rea_ and must have intended the result of the ensuing result. (e) Performed his own act of association with recklessness as to whether or not death would ensue. **ANALYSIS AND DISCUSSION** [96] PW1 testified that he went to the yard of PW3, accompanied by PW4. He testified that they stood by the shack and that, behind it, he found A2, while A1 was in front of the house. He testified that A1 was speaking loudly, saying that the deceased should come out of the house as he was looking for him. He testified that A1 appeared angry. PW1 testified that the deceased came out of the house and ran away, exiting the yard, and the chase for the deceased began. He stated that people who gave chase caught up with the deceased, and the assaults commenced. PW1 testified that villagers chased the deceased. It is worth noting that the defence did not challenge PW1's evidence. [97] PW4 testified that on 10th May 2020, he accompanied PW1 to the shop. From there, they heard a commotion coming from PW3’s house, which prompted them to go there. Upon arrival, they stood by the shack. He stated that they stood next to A2 and A3, though the accused were not standing together. He explained that the shack belonged to the deceased. He testified that he saw A1 and PW3 on the forecourt, and A1 was calling to the deceased to come out, as he was looking for him. He then heard stones being thrown at the house and windows breaking. After they had left the scene, he heard people behind them as the deceased was trying to flee. He testified that they stood there and witnessed that the deceased was caught. He heard sticks as the deceased was being assaulted. During cross-examination, the defence suggested to the witness that A3 was at the scene in response to an alarm, to which the witness replied that he did not know. [98] It is important to note that both PW1 and PW4 corroborate each other’s accounts that they came to PW3’s yard, stood by the shack, and that, behind the shack, they found A2. They further corroborate each other that A1 was standing at the forecourt, calling out to the deceased to come out, as he was looking for him. These witnesses corroborate each other that the deceased was pursued until he fell in the field below PW3’s yard. The witnesses further corroborated each other’s evidence that after the deceased was caught, they heard that he was being assaulted with sticks, as they heard sounds of sticks. It is significant to note that during the cross-examination of PW4, it was suggested that A1 was present at PW3’s forecourt due to an alarm raised. From the line of questioning by the defence, it can be safely concluded that the defence did not dispute that A1 was present at PW3’s yard, standing at the forecourt on the fateful night. This court should further highlight that both PW1 and PW4 said they saw A1 standing at the forecourt, calling out loudly to the deceased. [90] PW2 stated that he was awoken by the scream of his grandson, reporting that the deceased was under attack. He stated that he went outside and heard A1's voice emanating from his sister’s house, which was not far from his. He testified that A1 said they wanted the deceased, as they were going to kill him. While here, it is important to highlight that PW1 stated that A1 was speaking loudly as he was telling the deceased to come out, as they were looking for him. It is worth noting that PW4 stated that he saw A1 standing at the forecourt, calling the deceased to come out as they were looking for him. It should be noted that PW1 stated that A1 was loudly calling out to the deceased and appeared angry. It is also important to note that the defence did not dispute that A1 spoke loudly when he was at the forecourt. It cannot, therefore, be in dispute that PW2 heard the voice of A1 emanating from PW3’s yard. The court will deal with the words allegedly uttered by A1 later in the judgment. [100] PW2 stated that he went to PW3’s yard, but he could not get into the yard because stones were thrown at him, and the exterior lights went off. He stated that after the attack had subsided, he went to PW3’s yard. Shortly thereafter, he saw light approaching the place where the deceased had fallen. He saw two people approaching the scene, and the third one joined them. He observed that those people were doing something to the deceased. Shortly thereafter, he saw that the deceased was engulfed in flames as they had set him alight. He stated that due to the light emanating from the flames, he identified A15, A1, and A4 as the people who had set the deceased alight. [101] He testified that he observed that the deceased sustained wounds to the head, the back of the body was burnt, wounds on the front part of the body, wounds at the back of the head, and on the side of the head. [102] During the cross-examination of PW2, it was put to him that A1 did not set the deceased alight. The witness replied that he did not know whether A1 used his hand to set the deceased alight, but A1 was present at the scene when the deceased was set alight. During cross-examination, it was put to the witness that A15 did not set the deceased alight; the witness persisted that A15 participated in the deceased’s death, as he saw him near the deceased. It is significant to note that the defence did not put A4’defence to PW2, as the witness who claimed that A4 participated in setting the deceased alight; therefore, this piece of evidence remained unchallenged. [103] The court then asked the witness to indicate the distance between him and the crime scene, and the witness replied that he could have been approximately 17 paces away from the deceased. The court asked the witness for how long he had known the accused, whom the witness claimed had set the deceased alight. The witness replied that he had known them all their lives, as they grew up before his eyes. The court asked the witness what could have caused the fire, and the witness replied that he had observed it was petrol or diesel, as the clothes were burnt except for the gumboots. Finally, the court asked the witness to describe the nature of the flames. The witness replied that, since the deceased was wearing a shirt, the flames were not large, and added that after the shirt had completely burnt, the flames subsided. [104] PW3 stated that he knows A2 very well as they grew up together, herded animals together, and did many other things together. He stated that he knows all the accused very well as co-villagers, and none of them was a stranger to him. He testified that PW2, as a parent in the village, knew all of the accused individuals and had raised some of them. [105] PW3 testified that at approximately 07:00 pm, he was in the flat-roofed house, in the company of ‘Mampolokeng Lebakeng, the deceased, and two children. He heard a dog barking and went outside to investigate, where he met A1 entering the yard, holding a big rock. A1 said he had not come there for him, but for the deceased, as he had come to kill the deceased. He stated that A1 appeared drunk. A1 then walked away, as the deceased was about to get out, and said: “**Hey, men, come out from your hiding place, let’s kill this person”.** He said that A1 was speaking loudly, appeared drunk, and was in a fighting mood. [106] Immediately, people emerged from the maize plot and started throwing stones at the house, and the exterior globe broke. He saw other people going behind the house, and the windows breaking. He talked to A1 to instruct those people to stop the attack, and A1 said he would pay for the damaged properties, because he wanted to kill the deceased. PW3 said he entered the house to protect his family members who were inside. He testified that he attempted to talk to A1 to stop the attack, but A1 persisted that he wanted to kill the deceased. [107] It is convenient at this stage to take a detour to PW2’s evidence that he heard the voice of A1, saying that they wanted the deceased, so that they could kill him. It is important to note that PW3 stated that A1 called out loudly and appeared drunk. It is worth noting that PW2 said that his home was not far from PW3’s house, so much that he could hear someone speaking from there. It is worth mentioning that the defence did not dispute this piece of evidence. Therefore, this court has no reason to doubt PW2’s evidence that he heard A1’s voice emerging from PW3’s yard. Both the evidence of PW2 and PW3 corroborate each other that A1 called out to the deceased that he should come out, as they were there to kill him. It should further be remembered that both PW1 and PW4 corroborated each other that A1 spoke loudly when he was standing at PW3’s forecourt. The court further has no doubt that A1 uttered the words that he wanted the deceased to be killed. [108] PW3 testified that when he attempted to enter the house, A1 held him together with unidentified people. A1 then instructed PW3’s wife to hold PW3, as they were not there for PW3, but to kill the deceased. He stated that as A1 held him, others were throwing stones into the house. [109] PW3 testified that he identified A11 hitting the deceased with a stick at the door, and at the door, he identified A3 and A2. He testified that he inquired from A2 why they attacked him, and A2 replied that the deceased must be killed. It is important at this stage to revert to the evidence of both PW1 and PW4, who corroborated each other, that when they arrived at the shack, they encountered A2. PW4 further stated that he met A3 at the shack when he arrived with PW1. It is further important to note that both A2 and A3 did not deny being at the scene; they stated they had gone there in response to an alarm. PW3 further in his evidence stated that upon recognition of A2, he spoke with him, and A2 replied that the deceased must be killed. It should be remembered that PW3 said the interior lights were still on as they stood at the doorway, as PW3 attempted to enter the house. It is common cause that PW3 knew A2 and A3 very well as brothers. During the cross-examination of A1, A1 stated that PW3 stayed at his home; as a result, they knew each other well. It is common cause that A1 and A2 are brothers, and if PW3 stayed at their home, it means PW3 knew both A1 and A2 very well. [110] It is significant to note that during the cross-examination of PW3, the defence did not challenge PW3’s evidence that he saw A2 at the crime scene and that when he confronted A2 about the attack, A2 replied that the deceased must be killed. A2 did not dispute this evidence under cross-examination, and the evidence that he was present at the scene and that he uttered those words remains unchallenged. However, during the examination in chief of A2, he testified that he went to PW3’s home and asked PW3 as to what was happening. He testified that PW3 replied that the attackers were looking for the deceased. It is worth repeating that this version was never put to PW3 during his cross-examination. In addition, PW3’s evidence was never challenged in any way. The court therefore concludes that A2 was present at the crime scene, and that he uttered the words that the deceased must be killed. The court holds that A2’s version that he was at the crime scene to inquire as to what was happening is an afterthought and, therefore, is rejected. [111] PW3 further testified that the door was opposite the back window, and since the interior light was still on, he saw A10 through the back window, pelting stones through the back window, as the window had been broken and the curtain had fallen. He stated that A8 and A12 stood next to A10. This evidence corroborates the evidence of PW1, PW2, and PW4 that they heard windows breaking. This evidence shows that both A8 and A12 acted in common purpose with others who were attacking and throwing stones at PW3’s house. [112] It is significant to mention that PW3 testified that A1 arrived alone at his home, but A1 called the mob to come out from their hiding place and attack. He stated that people emerged from hiding places and began pelting the house with stones, breaking the exterior light. A1's conduct shows that he was the ringleader, because when PW3 complained about damage to his property, A1 said he would replace it. Indeed, after the deceased had fled the house, A1 inspected the damaged property and ultimately replaced it. A1’s behaviour showed that he was determined that nothing would stop him on his way to see the deceased killed, to the extent that he was prepared to spend his money to replace the damaged property. The evidence further shows that during the attack, PW3 pleaded with A1 to instruct his mob to stop the attack so that PW3 could evacuate his children from the house. Evidence was led that A1 ordered the mob to cease the attack, and the mob did so. After the children had been evacuated, he instructed them to resume the attack, and they did so. Evidence was led that after the children had been evacuated, A1 issued the instructions that the deceased should be taken out of the house and so that he could be killed. This piece of evidence shows that there was a prior agreement between the accused to act in common purpose by attacking the deceased, and the accused were also seen at the crime scene, taking part in the attack against the deceased. PW3 led evidence that after the deceased had been attacked at the second crime scene, A1 said that they should leave as they had done a good job, and said he was going to buy liquor. The actions of the accused persons clearly show that they had the necessary intention to kill the deceased. Here, A1 is heard congratulating them for working well, as their common purpose to kill the deceased had been realised. [113] PW3 further testified that he saw A4 holding a container and witnessed him pouring a liquid substance on the deceased, and then he lit the fire. PW3 then said he identified A1 and A15 at the crime scene. It should be noted that the accused stated they went to PW3's home in response to an alarm. It is significant to state that the alarm was raised at PW3’s home and not at the second crime scene. It is common cause that the deceased ran out of the house, and people chased him until they got hold of him. This evidence shows that people who were identified at the second crime scene are the ones who pursued the deceased and assaulted him there. This shows that their evidence that they attended PW3’s home due to the alarm raised is false because the attack on the deceased took place at the second crime scene and not at the home of PW3, where they had attended the alarm, according to their claim. The evidence of PW3 corroborates that of PW2, who stated that he saw A1, A4, and A15 as the people who set the deceased alight at the second crime scene. This evidence clearly shows that the accused acted in common purpose in attacking the deceased, and their conduct shows their clear intention to kill the deceased. [114] PW3 stated that the deceased sustained a large wound on the head, and the brain protruded outside. He testified that the deceased’s teeth fell out. He observed big rocks at the crime scene, which were used to attack the deceased. He testified that the deceased sustained severe burns on the body. The nature and the extent of the injuries sustained by the deceased show that the accused had formed the necessary intention to kill the deceased and that they acted in common purpose to achieve their goal. The large rocks found at the crime scene show the clear intention of the accused to kill the deceased. [115] The defence argued that the Crown witnesses were mistaken about the identity of the accused individuals. As demonstrated in the preceding paragraphs, it is common cause that the accused and PW3 knew each other very well as co-villagers. Both PW2 and PW3 and the accused agreed that they knew each other well, so much so that they could identify each other by voice. [116] This court has found guidance in the case of **_R v Dladla and Others**[10]**_** , where Holmes JA, quoted James J with approval when he said: _“One of the factors which in our view is of the greatest importance in a case of identification, is the witness’ previous knowledge of the person sought to be identified. If the witness knows the person well or has seen him frequently before, the probability that his identification will be accurate is substantially increased. Even in the case when a witness has some difficulty in the witness box in giving an accurate description of the facial characteristics and clothes of the person whom he has identified, the very fact that he knows him provides him with a picture of the person in the round which is a summary of all his observations of the person’s physiognomy, physique, and gait, and this fact will greatly heighten the probability of an accurate identification…In a case where the witness has known the person previously, questions of identification marks, or facial characteristics, and of clothing are, in our view, of much less importance than in cases where there was no previous acquaintance with the person sought to be identified. What is important is to test the degree of previous knowledge and the opportunity for a correct identification, having regard to the circumstances in which it was made.”_ __ [117] Another case that is instructive is that of **_S v Mehlape**[11]**_ ,** where it was held thus: _“In a case involving the identification of a particular person in relation to a certain happening, a court should be satisfied not only that the identifying witness is honest, but also that his evidence is reliable in the sense that he had a proper opportunity in the circumstances of the case to carry out such observation as would be reasonably required to ensure a correct identification. The nature of the opportunity of observation which may be required to confer on an identification in any particular case the stamp of reliability, depends upon a great variety of factors or combinations of factors which may have to be investigated in order to satisfy a court in any particular case that an identification is reliable and trustworthy as distinct from being merely bona fade and honest. It is necessary, however, for the court to be properly satisfied in a criminal case on both these aspects. If, in regard to a question of identification, any reasonable possibility of error in identity has not been eliminated by the end of a criminal case, it could clearly not be said that the State has proved its case beyond a reasonable doubt.”_ [118] PW2 stated that shortly after his arrival at PW3’s house, he saw a light at the second crime scene. He testified that two people approached the deceased, and the third one joined them. He stated that he observed that these people were doing something to the deceased. Shortly thereafter, the deceased was engulfed in flames as he was set alight. He stated that because of the flames, he identified A15, A1, and A4 as the people who set the deceased alight. [119] PW3 testified that after the deceased fled from the house, he and A1 inspected the damage that had occurred. Following this, A1 left the scene. PW3 heard that the deceased was being assaulted and observed that some individuals who were attacking the deceased left the crime scene while others remained. He noted that some people returned to the scene, and he identified A4 holding a container, from which he poured some liquid onto the deceased. PW3 witnessed A4 lighting the fire and saw A1 and A15 present. It is important to emphasize that both PW2 and PW3 corroborate each other's accounts, confirming that A4, A1, and A15 were responsible for setting the deceased alight. However, these accused individuals deny having set the deceased on fire. [120] During cross-examination of PW2, it was put to the witness that he had identified three people, but he did not describe their clothing to the court, and the witness confirmed this. The witness was asked about his distance from the scene and replied that he was quite close. When it was suggested to him that A1 did not set the deceased on fire, the witness stated that he was unsure whether A1 had ignited the deceased with his hand. However, he confirmed that A1 was present at the scene when the deceased was set alight. During the cross-examination of PW2, it was suggested that many people were present at the crime scene. The witness acknowledged that there were many individuals but stated that he identified three of the accused because of the firelight. Finally, it was suggested to PW2 that A15 did not attack the deceased at all. In response, the witness confirmed that he saw A15 because he was near the crime scene. [121] PW2 testified that he knew both the deceased and the accused since they were all raised in the same village. He stated that the deceased grew up alongside the accused, with some of the accused the same age as the deceased and others younger. It is undisputed that the accused acknowledged their familiarity with PW2, as they also grew up in the same village as him. Additionally, the accused confirmed that they knew PW2 well, as he had played a role in raising some of them. [122] During A1's cross-examination, he acknowledged that he knew PW2 well, as PW2 had raised him. The witness further agreed that he was very familiar with PW2's voice. It was then suggested to A1 that PW2 and PW3 would also recognize his voice, and he agreed. Additionally, during the cross-examination, it was proposed to A1 that PW2 had stated he recognized A1's voice because he had raised him, and A1 concurred that PW2 did indeed know his voice well. [123] During the cross-examination of A4, he acknowledged that he knew PW3 well because they had herded animals together. A4 stated that he had known PW3 since 2001 or 2002. It was then suggested to A4 that PW3 claimed he saw A4 among those who set the deceased on fire, but A4 denied this assertion. [124] It is important to note that both PW2 and PW3 have a previous knowledge of the accused they identified. The witnesses and the accused were likely well-acquainted, as the witnesses had frequently seen the accused, significantly increasing the likelihood that their identification was accurate. [125] It is further important to note that PW3 stated that he identified A10 pelting a stone at the back window, and that A8 and A12 were standing next to him. It is worth mentioning that the door was opposite the broken back window, and its curtain had fallen. PW3 stated that as he stood at the door, with the assistance of the light emerging from inside the house, he identified A10, A8, and A12. It is further important that these accused did not dispute that they arrived at the crime scene after the alarm was raised. The fact that PW3 had previously known them well and that light from the house illuminated that area enabled PW3 to identify them. [126] PW3 testified that when A1 arrived at his home, he told him that he was there for the deceased, so that he could kill him. PW3 further testified that A1 called people who were hiding, and instructed them to kill the deceased, and it was at that stage that people emerged from their hiding places, and pelted the house with stones, causing the exterior light to break. This evidence shows that the accused were associated in a joint unlawful enterprise, and each is responsible for the specific conduct committed by one of their number, which falls within their common design. The crown‘s evidence further shows that after the deceased had been set alight, A1 said they should leave, as they had done good work, and said he was going to buy liquor. See **_Zingeleza Mzwempi and State_**** _**[12]**_**. [127] There is no doubt in the mind of this court that the individual acts of each of the accused manifested an active association with the acts of each of them, which resulted in the death of the deceased. [128] It is trite that a prior agreement may not necessarily be express but may be inferred from the surrounding circumstances[13]. The surrounding circumstances in this matter show that A1 acted in common purpose with the accused, whom he instructed to come out of hiding and pelt the house with stones. PW3 identified the accused who hit the deceased while at the door and identified the accused who threw stones through the back window. PW2 and PW3 identified the accused who set the deceased alight at the second crime scene. Their acts show that they acted in common purpose in causing the death of the deceased, and the acts of one participant in causing the death of the deceased are imputed as a matter of law to the other participant. [129] The post-mortem report shows that death was due to head injury with skull fracture and severe brain damage. External Appearance- body with post-mortem burns all over the body. Rassed laceration of the left ear. Razzed skin laceration 3 cm long. On opening up the sculp, there was a depressed and comminuted fracture of the left frontoparietal temporal bones with severe laceration of underlying brain tissue by bone fragments. Skull anterior- depressed comminuted fracture left frontoparietal temporal bones. [130] PW3 testified that he observed that the large wound on the head and the brain protruded out. The deceased’s teeth were out and remained at the crime scene, and the deceased’s body was burned. He observed large rocks at the crime scene. Both the evidence of the pathologist and PW3 corroborate each other that the deceased sustained head injury and burns all over the body. The post-mortem report shows that the skull was fractured, and the deceased had severe brain damage. These injuries show that a considerable amount of force was applied to the deceased's head. It can be safely concluded that the large stones that were found at the crime scene had been used to inflict the injuries on the deceased. It is worth noting that the head is the delicate part of the human body, as it contains the brain. It is a matter of common cause that the brain is contained and protected by the skull. The post-mortem shows that the depressed comminuted fracture involved the left frontoparietal temporal bones. The nature of the injuries the deceased sustained is consistent with the large stones that were found at the crime scene. The post-mortem report further confirmed PW3’s evidence that the deceased ‘s body was burned. PW3 testified that he observed broken sticks at the crime scene. It is reasonable to conclude that these sticks were used to assault the deceased, as both PW1 and PW4 confirmed that they heard the deceased being attacked with sticks. These injuries show that the accused had a settled intention to kill the deceased, and they acted in common purpose to achieve their goal. [131] This court concludes that the Crown has established beyond a reasonable doubt that the accused committed the offence with which they are charged. **ORDER** 1. The accused are found guilty of murder with _dolus directus_ in count 2, and malicious damage to property in count 1. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [132] _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._ [133] In the case of **_Lefaso v Rex_**[14], **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._ ” [134] 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]. [135] 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_**[17] and **_S v Petrus_**[18]. [136] 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_**[19], **_Mohlalisi and Others_**[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]). [137] 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**[22]**.” _ [138] After careful consideration of the principles enunciated in the cases referred to above, I conclude that the following extenuating circumstances exist in favour of the accused to wit; (i) The accused have a rural background as they come from a rural place at Sefikeng. (ii) The accused persons still practice Basotho customs and traditions as they are initiated. (iii) The accused persons are not educated and have sub-normal intelligence. (iv) Most of the accused are youths. [139] The Court has reached the challenging stage: determining the appropriate sentence that will serve the interests of justice in this case. It is trite that the court should consider the interests of the accused, the seriousness of the offence, the victim's interests, and the interests of society. [140] In mitigation of sentence, Adv. Mohale, the defence counsel, submitted that the accused persons are first-time offenders, and are intending to raise the head of the deceased by paying five head of cattle. He submitted that A1 is divorced and has three children who are still minors. A2 is married and has a child aged 19 years old. A3 is married, has three children, and is employed as a labourer. A4 is not married, and he herds his parental animals. A12 is married, and at the commission of this offence, he was a child, as he was 15 years old. He is employed as a shepherd. [141] In aggravation of the sentence, Adv. Mokuku, the Crown counsel, submitted that the accused, the deceased, and the Crown witnesses were co-villagers and attended the initiation school together. He submitted that the accused humiliated the PW3 in front of his wife and children, who were under his protection and care. He submitted that PW3 was forced to relocate to another village due to shame, fear, pain, and trauma occasioned at the hands of the accused. He added that the accused’s brutal attack on the deceased affected three generations, to wit: the uncle of the deceased, the deceased’s older brother, and the deceased’s young nephews. He submitted that the accused persons did not take any measures to pay compensation to the deceased’s family after the commission of this offence. The crown conceded that A15 was a child at the commission of this offence; therefore, the court should consider that fact in passing sentence on A15. He submitted that PW3’s family will live with the trauma that the accused caused them for the rest of their lives. He submitted that the court should consider the role that A1 played in the commission of this offence. He further submitted that the nature and the extent of the injuries the deceased sustained should be considered in passing the sentence. [142] In passing sentence, the court has considered that the accused are first offenders, and thus are not prone to offending against the law. The court has considered the personal circumstances of each accused, especially that they are married and have children, who depend on them for their livelihood. [143] The court, in passing an appropriate sentence, has considered that the attack on the deceased was premeditated and was well executed. The accused persons attacked PW3’s house by throwing stones at it, and thus breaking the back windows and the exterior light. The accused's actions indicate that their attack was well planned. PW3 testified that he tried to enter the house to protect his young children, who were inside. The court can imagine the pain, fear, and distress experienced by the PW3 under those circumstances. The court further holds a strong view that the children and their mother must have been horrified by the attack, as the stones were thrown into the house where they were inside. [144] The court has further considered that stones were thrown at PW2, which caused him to retreat. The actions of the accused indicated that they did not want anybody to come to the rescue of the deceased. [145] The evidence indicated that the deceased fled from the house in search of safety, but the accused pursued and ultimately caught him, assaulting him in the process. Witnesses PW1, PW2, PW3, and PW4 testified that they heard the deceased was attacked with sticks. This evidence demonstrates that the accused were determined to carry out their violent intention without showing any mercy toward the defenceless deceased. It is important to note that the deceased was unarmed, while several of the accused were armed with sticks. Additionally, the court considered PW2's testimony about observing large, blood-stained rocks at the crime scene. A police officer who responded to the scene confirmed that he also found large stones there. The post-mortem report showed that the deceased sustained a head injury with a skull fracture and severe brain damage. It can be safely concluded that the large stones found at the crime scene were used by the accused to attack the deceased. This evidence shows that the accused attacked the deceased brutally, callously, and mercilessly. As if that was not enough, the accused went further to set the deceased alight. This court does not have the proper words to describe the brutality occasioned by the accused towards the deceased. There is no doubt that the court believes the accused should face severe punishment to send a message to potential offenders that actions of this nature will result in harsh sentences. [146] This court recognizes that our country is facing a serious issue of mob justice, in which individuals take the law into their own hands. I must stress that such behaviour must be met with strict penalties. If left unpunished, it will lead to chaos, with citizens resorting to self-help. It is the responsibility of this court to restore public confidence in the criminal justice system. When society trusts the legal system, people are less likely to take the law into their own hands. [147] This court believes that the sentence for A1 and A15 should differ from that of the other accused. The disparity in sentences between the accused is that A1 played a leading role in the commission of this offence, while A15 was a child aged 15 at the time. This court has found guidance in the case of **_Khalanyane and Others v Rex LAC (2000-2004) 839 at 845 -846 B:_** where the court said: _“There is, of course, no need to impose the identical sentence on each participant to the same crime. Each participant’s individual circumstances, including the degree of participation, must be carefully considered. Nevertheless, where the accused persons are more or less equally associated in the commission of an offence and there are no factors personal to each accused which suggest the need for the imposition of disparate sentences, a court of appeal may interfere with the sentences where they are treated differently_ (**_cf S v Moloi 1969 (4) SA 421 (A) at 424 E-F).”_** [148] The evidence presented showed that A1 issued the instructions to the co-accused to attack the deceased and kill him. It is essential to state that A1 issued instructions to the co-accused to come out of the hiding place and attack the deceased. He further uttered words that the deceased must be killed. When PW3 complained to him about the damage to his property, A1 said he would be responsible for replacing it. When PW3 pleaded with A1 to stop the attack so that he could evacuate his children from the house, A1 instructed the co-accused to stop the attack, and as soon as the children were rescued, he reissued instructions for the attack to resume. After the deceased had been murdered, there is evidence that A1 set the deceased alight at the crime scene. After the accused persons had completed their mission, A1 told his co-accused that they should go, congratulated them on a good job, and added that he was going to buy liquor. This evidence indicates that A1 was not remorseful of his actions. This evidence clearly shows that A1 played a leading role in the commission of this offence and, as a result, should be sentenced differently from his co-accused. [149] It is common cause that A15 was 15 years old at the time of the commission of this offence. _Section 6 (2) of the Penal Code Act, 2010_ , provides that _a person above the age of seven years but below the age of fourteen years is not criminally responsible for any act or omission unless it is proved that at the time of doing the act or omission he or she understood the nature and implications of the conduct and, knowing that the conduct was wrong, he or she was capable of acting in accordance with that knowledge._ This section does not apply to A15, because he was 15 years old at the material time. [150] The court has considered that A15 was a small boy who found himself in the company of adults, and it holds a strong view that, due to his immaturity, he was easily influenced and unable to stand his ground. The court has therefore considered the accused's youthfulness and immaturity in sentencing him. The court has found that A15 is the first-time offender, indicating that he is not prone to offending against the law. This court holds the view that A15 should be taken as a fallen angel and must be given a second chance in life. Due to his tender age, there is a prospect that the accused will be rehabilitated; therefore, the court should not close the door on him. For this reason, the court concludes that A1 should be sentenced differently from the other co-accused. [151] In determining an appropriate sentence, this court has considered the testimony of PW3, who stated that the death of his brother was a painful and traumatic experience for his family. Consequently, he felt compelled to relocate to another village, as living in their previous home served as a constant reminder of his brother's tragic death. The court has considered that the family of the deceased will never see or hear his voice again. [152] During the trial, the court observed PW3's demeanour. The court vividly remembered having to adjourn because PW3 could not hold back his tears while recounting the brutal and callous killing of his younger brother. His reaction revealed the deep pain, sadness, and grief that the deceased's brother continues to experience even today. [153] Finally, the court has considered that this tragic incident occurred in 2020. This means the matter has been hanging over the accused’s head for approximately five years, during which the accused did not know their fate. This court considers this factor itself a punishment. [154] The court concludes that the most appropriate sentence that will serve the interests of justice in this matter is the following. **Order** 1. **In count 1** (unlawful damage to property), the accused persons are sentenced to two (2) years' imprisonment. 2. **In count 2** (murder), A1 is sentenced to thirty (30) years' imprisonment. 3. **In count 2** (murder), Accused No. 2, Accused No. 3, Accused No. 4, and Accused No. 12 are sentenced to twenty-five years’ imprisonment. 4. **In count 2**(murder), Accused No. 15 is sentenced to 15 years’ imprisonment. 5. The sentences are to run concurrently. ____________________ **T.J. MOKOKO** **JUDGE** **FOR THE CROWN : ADV. T. MOKUKU** **FOR THE ACCUSED: ADV. P. L. MOHAPI & ADV. L.W. MOHALE** **** **** * * * [1] LAC 2000-2004 710 on page 729 [2] _1983 (4) 57 (A)__at 64-65_ [3] _Supra_ on page 729 [4] 1969 (2) 637 (A) at 640 F- 641 [5] 1963 (1) S.A 692 (A.D) at 694 F-H and p.695 _**[6]**____1989 (1) SA 687_ _at 705-706 B_ [7] 2nd Edition at page 393 [8] 1993 (1) SA 777 (A) SACR 67 (G) [9] _1993 (2) SA 765 (A)__at 772 D-E_ [10] _1962 (1) SA 307_ [11] _1963 S.A (2) 29_ [12] Case No. 284/04 [13] Zingeleza Mzwempi v State (supra) page 8, para [21]. [14] LAC 1990- 1994 44 [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) [22] LAC 1995 – 1999 at P 423