R V Mohlapiso Phamotse & Ano. (CRI/T/0104/2024) [2025] LSHC 259 (22 August 2025)

**IN THE HIGH COURT OF LESOTHO** **CRI/T/0104/2024** **Held in Maseru** In the matter between **REX CROWN** AND **MOHLAPISO PHAMOTSE** **ACCUSED 1** **JAMPO MASIKE**(DECEASED) **ACCUSED 2** _Neutral Citation_ : Rex vs Mohlapitso Phamotse and Another [[2025] LSHC 215](/akn/ls/judgment/lshc/2025/215) (21st August 2025) **CORAM** : T.J. MOKOKO J **HEARD** :**** 19/08/2025 **DELIVERED** : 22/08/2025 **__SUMMARY__** _Murder – Accused found guilty of murder- requisites of doctrine of common purpose satisfied- Defence of Self-defence rejected._ **__ANNOTATIONS__** __Cited Cases__ _Lesotho_ 1. _Bobe v The State_ _[2006] 1 BLR 254 (CA)_ 2. _Lefaso v Rex_ _LAC 1990- 1994 44_ 3. _Letuka v Rex_ _LAC 1995- 1999 405_ 4. _Linake v Rex_ _LAC (2009 – 2010)_ 5. _Matsobane Putsoa v Rex 1974-1975 LLR 201_ 6. _Ramaema v Rex_ _LAC 2000-2004 710_ 7. _Rex v Mohlalisi and Others_ _LAC (1980 – 1984) 110_ 8. _Rex v Teboho Tamati Ramakatsane 1978 (1) LLR 70_ _South Africa_ 9. _Magmoed v Janse Van Rensburg and Others_ _1993 (1) SA 777 (A) SACR 67 (G)_ 10. _R v Attwood_ _1946 AD 331_ 11. _S v Madlala_ _1969 (2) 637 (A)_ 12. _S v Mafela_ _1980 (3) SA 825 (A)_ 13. _S v Malinga and Others_ _1963 (1) S.A 692 (A.D)_ 14. _S v Mgedezi_ _1989 (1) SA 687_ 15. _S v Ngobeni_ _1992 (1) SACR 628 (C)_ 16. _S v Ntuli_ _1975 (1) SA 429 (A)_ 17. _S v Petrus_ _1969 (4) SA 85 (A)_ 18. _S v Prins_ _1990 (1) SACR 426 (A)_ 19. _S v Shaik and Others_ _1983 (4) 57 (A)_ 20. _S v Singo_ _1993 (2) SA 765 (A)_ __Statutes__ 1. _Criminal Procedure and Evidence Act, 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ __Books__ 1. _Burchell and Milton, Principles of Criminal Law, 2 nd Ed. 393_ **JUDGMENT** **INTRODUCTION** [1] The accused are charged with contravening _section 40 (1) of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6) read with section 40 (2) and 26 (1)_ thereof. In that upon or about the 23rd October 2013 at or near Ha Mokokotoane, Boleka in the district of Mafeteng, the said accused sharing a common intention or purpose to pursue an unlawful purpose together, and in pursuit of such purpose did perform an unlawful act or omission with the intention of causing the death of Motlatsi Khajoane. [2] At the beginning of the trial, the crown counsel requested the withdrawal of the charge against accused no. 2, Jampo Masike, who has since passed away, in accordance with _section 278(3) of theCriminal Procedure and Evidence Act, 1981_. The Crown Counsel submitted a letter from the Chief of Mokokotoaneng confirming that Jampo Masike is deceased. As a result, the court withdrew the charge against A2. Accused No. 1 then pleaded not guilty to the charge. The crown did not accept this plea and proceeded to present evidence from witnesses. **CROWN’S CASE** **PW1 – Rethabile Mphasa** [3] The witness testified that he completed his education up to Form A. He stated that he was 19 years old in 2013 and is currently 31years old. He is familiar with the accused, as they live in neighbouring villages. [4] On 23 October 2013, he was at home with his siblings, Mphonyane Mphasa and Relebohile Mphasa. At around 8:00 pm, a group of people arrived at their house, and two entered. He identified these individuals as A2 and Kobeli. They claimed they were looking for someone named Rantsipi, nicknamed Seropo, who was apparently a shepherd living in the same village. The witness informed them that Seropo was not at home and provided them with his contact numbers. They did not explain why they inquired about Seropo's whereabouts, and eventually, they left. [5] At around 9:00 pm, he heard voices in the distance, and eventually, those individuals gathered by his gate. He heard Motlatsi, the deceased, running towards the house, so he entered the house and locked the kitchen door. Once inside the kitchen, he found the deceased lying on the floor, facing upward, and breathing heavily. Mphonyana Mphasa, Relebohile Mphasa, and Lebohang Likotsi joined him in the kitchen. They tried to assist the deceased and remove his clothing. He noticed that the deceased had three wounds: two on the left breast and one on the abdomen. These were open wounds and appeared to have been inflicted by a sharp object. Later, the police arrived and took the deceased away. [6] He clarified that among the people who had come to his house earlier, he identified A1, A2, and Kobeli. A1 and Kobeli carried sticks, but he did not observe what A2 was carrying. [7] During the cross-examination, the witness was asked why he did not mention that the accused was among the people who came to his house earlier during his examination in chief. The witness replied that he did not mention the accused because the accused did not enter the house. It was suggested to the witness that no one chased the deceased. The witness countered that he heard that the deceased was being chased, as there were people at the gate. [8] The witness was then told that since the accused was among the people outside, he was in a better position to know what transpired there. The witness acknowledged that he did not know what had happened outside but noted that the deceased had sustained injuries. It was further suggested that all the wounds on the deceased were inflicted by A2. The witness responded that he did not know who stabbed the deceased. Finally, it was suggested to the witness that A2 was responsible for the deceased’s death. The witness stated that he was not there. **PW2 – Fusi Nkheche** [9] He testified that he lives in Mokokotoaneng Boleka and works as a shepherd, caring for his parents’ cattle. He knows the accused, as they are from the same village. While herding cattle in Ha Maholi village, he encountered Seropo and others who had impounded his cattle, although he did not identify the other individuals. He went home to get money to pay the fine and successfully paid it, allowing the cattle to be released to him. [10] Kobeli accompanied him, and they met A1 and A2 on their way back. A1 asked if any cattle had been injured, and the witness replied that one cow had an injury. A2 suggested they should return to find out why the cow was injured. The witness, A1, A2, Matabola, Fusi, and Malefetsane Poleli set out to look for Seropo. [11] They sent Kobeli to Seropo’s place, but he could not be found. They then went to Relebohile Mphasa’s home to ask for Seropo’s contact numbers. While waiting for Kobeli and A2 along the way to Relebohile’s home, they tried to call Seropo but could not reach him as his phone was unavailable. [12] They left Relebohile's house and encountered the deceased on their way. A1 approached the deceased while carrying a stick, and A2 came along without anything in hand. They intended to inquire about Seropo's whereabouts. [13] He saw the deceased running away while A1 and A2 chased him until the deceased entered the yard. A1 and A2 followed the deceased to the front of the premises. Afterwards, they returned and joined the witness and others. The witness noticed that A2's knife was covered in blood. A2 said that he had stabbed the deceased with the knife. A1 stated that he struck the deceased with a stick, but he did not specify where he hit the deceased. [14] The witness estimated that the deceased was about 30 paces away from where he was standing. He also believed that the deceased's house was approximately 12 paces from the location where the deceased, A1, and A2 were together. The witness clarified that A1 and A2 were at the deceased's house when they were called back. They ran away when an alarm was raised from the deceased's home. The following day, he learned that the deceased had died. [15] During cross-examination, the witness was asked if he had actually seen the fight that took place between the deceased and A1 and A2. The witness admitted that he had not witnessed it. It was then suggested to the witness that A2 was the person who inflicted the fatal wounds on the deceased, to which the witness did not disagree. It was also suggested to him that A1 only used his stick to defend himself against the deceased and did not attack. The witness acknowledged this point. Finally, it was further suggested that A2 was responsible for the deceased's death, and again, the witness did not dispute this claim. [16] The court asked the witness to confirm if he saw A1 and A2 chasing the deceased to his house. The witness confirmed that he saw them pursuing the deceased. **PW3 – Mphonyana Mphasa** [17] She testified that she resides at Ha Maholi, and that she is 32 years old. She knows PW1, because PW1 is her brother. She knows the accused as they attended the same school, though they came from different villages. She knew the deceased, as he was employed as a shepherd at her home. [18] On the fateful day, she was at home doing domestic chores. At around 6:00 pm, two gentlemen came to her house and asked where PW1 and Relebohile were. They entered the house but left shortly thereafter. Later, the deceased arrived and mentioned that he was going to Ha Maholi and would be back soon. [19] About thirty minutes later, she heard the deceased singing as he approached the house, but then the singing suddenly stopped. Instead, she heard someone running into the house and locking the door. Curious, she went to investigate and found that it was the deceased. [20] While looking out, she noticed two people peeping through the kitchen window, but she could not identify them. She raised an alarm, and the individuals at the window fled the scene through the lower gate. The police eventually arrived and took the deceased away. The defence did not cross-examine this witness. **ADMISSIONS** [21] The defence admitted the Crown witnesses’ statements and the post-mortem report in terms of _section_ _273 (1) of the Criminal Procedure and Evidence Act, 1981. Section 273 (1) provides that_ _an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue, and the admission shall be sufficient evidence of that fact._ **(i) Crime Scene Report of D/P/C Letele** [22] He stated that he is a member of the Lesotho Mounted Police Service (LMPS) stationed at the Mafeteng Police Station, specifically in the Serious Crimes Unit. On 27 October 2013, he went to the crime scene at Boleka. A crowd had gathered at the scene, and they led him into the house, where he found the deceased lying on his back on the kitchen floor in a pool of blood. Upon examination of the deceased, he observed that the deceased sustained one wound on the left side of the chest, one open wound on the stomach, and the intestines protruded, and another wound under the left breast. The wounds appeared to have been inflicted by a sharp object. The deceased was taken to Mafeteng Hospital, where the doctor confirmed his death. He was then moved to the mortuary. It was marked exhibit “A”. **(ii) Report of arrest by P/C Thoro** [23] On 17 February 2014, Mohlapiso Phamotse surrendered to the police, claiming responsibility for the death of Motlatsi Khajoane. He introduced himself, cautioned him, and then arrested him before being handed over to the CID office. It was marked exhibit “B”. **(iii) Lesotho Mounted Police Service- LMPS 12** [24] It describes a brown labetlela stick covered with white tape at both the top and bottom. It was marked exhibit “C”. **(iv) Identifying Statement of Mating Khoele** [25] He stated that on 29 October 2013, he identified the body of the deceased before the doctor performed a post-mortem examination. The deceased had sustained wounds on the abdomen and the chest, and they appeared to have been caused by a sharp object. The statement was marked Exhibit “D”. **(V) Post-Mortem Report** [26] The report identifies the deceased as Motlatsi Khajoane. The report shows that death was due to haemo-pneumothorax and intestinal evisceration. Remarks- haemo-pneumothorax caused pleural bleeding and respiratory distress later, intestinal evisceration caused obstruction of the intestines and severe dehydration. External Appearance- Deep (L) hemithorax wound 20 cm x 2cm x 25cm. Deep abdominal wound 5cm x 2cm x 7cm, intestinal evisceration. Pericardium Sac, and heart- congested heart. Large Blood-Vessels- intra-haemothorax blood vessel laceration. Larynx, Trachea and Bronchi- congested. Left- haemo- pneumothorax. Peritoneum and Peritoneal Sac- peritoneal laceration and intestinal evisceration. Intestines and Mesentry- intestinal evisceration and obstruction. The post-mortem was marked exhibit “E”. The Crown then closed its case. **APPLICATION FOR THE DISCHARGE** [27] The defence then moved an application for the discharge of the accused in terms of _section 175 (3) of the Criminal Procedure and Evidence Act 1981_. [28] In support of this application, the defence submitted that PW1 did not witness this tragic incident; therefore, the Crown did not place the accused at the crime scene. In addition, the defence submitted that PW2 testified that A2 is the one who inflicted fatal stab wounds. Lastly, the defence submitted that the evidence of PW1 did not connect the accused to the commission of the charged offence. [29] In reply, the crown submitted that the test at this stage is whether the crown has established a _prima facie_ case against the accused. The crown submitted that the crown has met the requirements of this test, because the evidence of the crown has put the accused at the crime scene, and the accused was seen chasing the deceased. The Crown, therefore, argued that this application should be dismissed on the grounds that the Crown has managed to establish a _prima facie_ case against the accused, and the accused has a case to answer. [30] _Section 175 (3) of the Criminal Procedure and Evidence Act, 1981 (Act)_ , 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.”_ [31] The issue to be determined by this court at this stage is whether the Crown has established a _prima facie_ case upon which a reasonable court might convict the accused. See **_Matsobane Putsoa v Rex_**** _**[1]**_**_._ [32] Cotran C.J in the case of **_Rex v Teboho Tamati_**** _**[2]**_****__** propounded the law as follows: “ _Furthermore, the courts, it has been said should not at this stage embark upon a final assessment of credibility and should leave that matter in abeyance until the defence have closed their case and then weigh the two together. In Lesotho, however, our system is such that the Judge is the final arbiter on law and fact so that he is justified if he feels that the credibility of the witnesses has been irretrievably shattered in saying to himself that he is bound to acquit, no matter what the accused might say in his defence short of admitting the offence_.” [33] At this stage, the court is not concerned with the credibility of witnesses. The simple test is whether the Crown has established a prima facie case against the accused. [34] In this case, the crown has successfully placed the accused at the scene of the crime. Not only did the Crown place the accused at the crime scene, but the Crown’s evidence has also demonstrated the accused's participation in the commission of the charged offence. It is for this reason that the application for the accused's discharge is refused. **DEFENCE’S CASE** **DW1 – Mohlapiso Phamotse** [35] He testified that he resides at Ha -Molise Boleka Mafeteng. At the time of the occurrence of this tragic incident, he was a herd man, and so was the deceased. He studied up to standard 7. On a date he could not recall in 2013, his parental livestock was impounded while being herded by his younger brother. His mother paid the fine and the livestock was released to his mother. His younger brother reported to him that he identified the deceased among the people who impounded the livestock. [36] He then set out for the deceased’s village to confront him about the theft of his dogs by the deceased and the issue relating to the impounding of his parental livestock. On the way, he encountered PW2, Nkholi, Jampo (A2) and Kobeli. When he told them about his journey to the deceased’s place, they joined him on his journey to the deceased’s place. [37] When they arrived at the deceased’s place, the deceased was not there. They went to the deceased friend’s home (Seropo) with the hope that the deceased might be there, but the deceased was not there. Kobeli and A2 went to Mapalesa’s house, where Seropo was staying, to get Seropo's contact numbers. They got the contact numbers of Seropo, and A2 made a call, and ultimately, the deceased arrived after being called. [38] When the deceased emerged, the accused, A2 and kobeli approached the deceased. The accused asked him why he had impounded his livestock and inquired about the issue relating to the theft of his dogs by the deceased. [39] He testified that the deceased said: “**u ntloaela hampe** ”, and the deceased hit him with the stick on the head, and he hit him back. The deceased ran away, and A2 caught the deceased by the blanket. He said he told A2 to leave the deceased alone as he had already retaliated. A2 let off the deceased, and the deceased entered the yard. Immediately after the deceased had gone by the corner, they heard people crying. He testified that A2 told him that he stabbed the deceased with the knife, and it was at that stage that he reprimanded A2 for his actions. He confirmed that he was holding a stick as shepherds carry their sticks along, and that he did not see A2’s knife. Later, he heard that the deceased had died. He then fled to the Republic of South Africa for approximately four months. He eventually surrendered himself to the police. [40] During cross-examination, it was suggested to the witness that he wanted to confront the deceased about the fact that the deceased had previously stolen his dogs, and the witness confirmed this assertion. The witness confirmed that A2 was carrying a knife when they left their village. When he was asked about the type of knife, the witness replied that he did not see it, but he came to know about the knife when A2 told him that he stabbed the deceased with the knife. It was then suggested to him that he said when they left home, A2 was carrying a knife, and the witness confirmed this suggestion. The witness confirmed that A2 and another person obtained the contact numbers of the deceased from the deceased’s residence. The witness was then asked how long they waited for the deceased after they had called him. The witness replied that they had waited approximately for about 20-30 minutes. [41] During the cross-examination, it was suggested to the witness that when the deceased emerged, A1 and A2 approached the deceased, and the witness confirmed this assertion. The crown suggested to the witness that it was never put to crown witness that A1, A2 and Kobeli approached the deceased, and the witness confirmed this. It was put to the witness that it was never put to the crown witnesses that the deceased said: “**u ntloaela hampe** ” to A1, and the witness agreed with this suggestion. Crown suggested to the witness that his version that the deceased hit him with the stick was never suggested to the crown witness, and the witness agreed with this suggestion. It was put to the witness that it was never suggested to the crown witnesses that A2 chased the deceased, while A1 followed them and that A2 stabbed the deceased while running. The witness agreed that this version was never put to the crown witnesses. [42] It was suggested to the witness that PW2 said he saw both A1 and A2 chasing the deceased towards his place of abode, and that this piece of evidence was never disputed by the defence, and the witness agreed with this assertion. It was put to the witness that the evidence that they chased the deceased until he entered the kitchen was never disputed by the defence, and the witness confirmed this suggestion. [43] It was further suggested to the witness that during cross-examination of the crown witness, the defence did not suggest that A1 had reasonable grounds for thinking that he was in danger, and that the deceased was armed with a stick. It was further suggested to the witness that he did not unpack his line of defence to show that his life was in danger. The witness agreed with this assertion. [44] It was suggested to the witness that he was seen chasing the deceased with A2, and the witness stated that he did not chase the deceased. However, he agreed that the defence did not challenge this evidence during the cross-examination of the Crown witnesses. It was suggested to the witness that he told PW2 that he hit the deceased with the stick, and the witness agreed with this suggestion. It was suggested to the witness that he was present at the crime scene, to which the witness agreed. The crown suggested to the witness that he associated himself with the assault on the deceased by chasing the deceased with A2, while they were both armed, and the witness agreed with this assertion. [45] During re-examination, the witness was asked to clarify the reasons for approaching the deceased. The witness explained that he approached the deceased to discuss with him issues relating to the theft of his dogs and the impounding of his cattle, but not to attack him. [46] The court asked the witness whether he was unhappy that the deceased had stolen his dogs and impounded his cattle, and the witness replied that he was not amused by the deceased’s actions. The court inquired from the witness why he did not approach the authorities, such as the headman or the deceased’s parents, instead of confronting the deceased himself. The witness replied that it was an oversight on his part. The court then asked the witness who else could have chased the deceased along with A2. The witness replied that the other person was himself, as he was telling A2 to leave the deceased alone. The defence then closed its case. **SUBMISSIONS BY THE CROWN** [47]**** Adv. Phooko the Crown Counsel submitted that the moment the accused person left his home, he was aggrieved that the deceased had stolen his dogs and impounded his parental cattle. The accused was armed with a stick when he took a journey to the deceased’s village. The crown submitted that it is undisputed that after the altercation, the accused and A2 chased the deceased towards his house. After the chase, the accused returned to PW2 and admitted to him that he had hit the deceased with the stick. He submitted that the accused’s actions during and after the incident show that he intended to kill the deceased. The crown submitted that the nature of the weapons used indicates the intention to kill the deceased. Adv. Phooko submitted that the nature of the injuries and the area where they were inflicted demonstrate the intention to kill the deceased. [48] The Crown submitted that the accused was angry with the deceased, which is why he took a 30-minute trip to the deceased’s village, armed with a stick. When he could not find the deceased at his home, attempts were made to get the deceased’s numbers. The deceased was called, and they waited approximately between 20 and 30 minutes until the deceased emerged. He submitted that when the deceased emerged, the accused approached him, overpowered him and chased him. The crown, therefore, submitted that the accused’s defence of self-defence is a fabrication. [49] The Crown submitted that it has proved beyond a reasonable doubt that the accused intended to kill the deceased, as the defence of self-defence is false beyond a reasonable doubt. [50] The crown submitted that where there is no prior agreement to commit the offence, then, according to the doctrine of common purpose, the accused should be present at the crime scene, be aware of the assault on the deceased, must associate with the acts of others and must have the intention, then the acts of another will be imputed to others. He submitted that the accused was aware that A2 had a knife, though he did not see it. **SUBMISSIONS BY THE DEFENCE** [51] Adv. Mokobori, the defence counsel, submitted that the accused might have been aggrieved by the deceased’s actions, and he approached the deceased to have a cordial discussion with him, as there was no intention to attack him. He submitted that there was no prior agreement to commit this offence, and the Crown has not proved any active association with the commission of the crime, because the stab wounds were inflicted by A2. The defence submitted that the accused’s version that he was at the crime scene to have some discussion with the deceased should be believed. The defence argued that the accused was not aware that A2 had stabbed the deceased. He submitted that A2 took over, and the accused tried to stop A2 from chasing the deceased as he followed them. [52] In conclusion, the defence submitted that the accused acted in self-defence as the deceased hit him with the stick, and he hit the deceased back in self-defence. The defence submitted that it was A2 who was responsible for committing this offence. **DOCTRINE OF COMMON PURPOSE.** [53] I wish to refer to the case of **_Ramaema v Rex**[3]** _**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******[4]****. 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.”_ [54] In the **_Ramaema’s case**[5]**_** , the court quoted with approval what was stated in the case of **_S v Madlala_**** _**[6]**_****_,_**_**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****[7]**; 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._ [55] The leading case as regards the invocation of the doctrine of common purpose is**_S v Mgedezi**[8]**_**. “ _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.”_ [56] 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_ _**[9]**__._ 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_**** _**[10]**_**.**** 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******[11]****_. [57] 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** [58] PW1 testified that on the fateful night, he heard voices at a distance and eventually saw those individuals gather by his gate. He heard the deceased running towards the house, and ultimately, the deceased entered the house and locked the kitchen door. He found the deceased lying on the floor, breathing heavily. He noticed that the deceased had sustained three wounds: two on the left breast and one on the abdomen. [59] PW2 testified that on their way from Relebohile’s house, they encountered the deceased. A1 while armed with a stick and accompanied by A2 approached the deceased. This witness saw the deceased running away, while A1 and A2 chased him, until the deceased entered his yard. A1 and A2 chased the deceased to the front of the house. Afterwards, they returned and joined the witness and others. PW2 noticed that A2’s knife was covered with blood. A2 said that he had stabbed the deceased with the knife, while A1 stated that he struck the deceased with a stick. [60] Both the evidence of PW1 and PW2 corroborate each other that the deceased went into the house running. PW1 said the deceased ran into the house and locked the kitchen door. The action of locking the door indicates that the deceased was fleeing from danger; otherwise, there would have been no reason to do so. PW2 stated that both A1 and A2 chased the deceased to the front of the house, which was when they returned. This piece of evidence clearly shows that when PW1 said he heard the deceased running towards the house, indeed, the deceased was being pursued by A1 and A2. [61] It should be noted that during the cross-examination of PW2, the defence did not challenge PW2’s evidence that A1 chased the deceased together with A2. PW1 testified that the deceased fell in the kitchen, and he had sustained three wounds. It is worth mentioning that PW2 stated that when A1 and A2 returned from pursuing the deceased, A2 said he stabbed the deceased with the knife. This fact was reinforced by the fact that PW2 observed that the knife was covered with blood. This witness stated further that A1 admitted to him that he struck the deceased with the stick. It is further worth noting that during the cross-examination of this witness, the defence suggested that A1 used the stick to defend himself against the deceased. I will address this issue when I discuss the defence of self-defence later in the judgment. [62] From the evidence of PW1 and PW2, it is a matter of common cause that the deceased was chased by A1 and A2 into the house. There is no doubt that the deceased sustained the injuries observed by PW1, and the same wounds were observed on the deceased by the pathologist, as fully demonstrated by the post-mortem report. It is further noted that according to the evidence of PW2, A1 struck the deceased with the stick, while A2 stabbed him with the knife. [63] Fast forward to the evidence of DW1. He stated that on the fateful day, he learned that his parental cattle had been impounded by the deceased. When he heard that the deceased had participated in the impounding of his parental cattle, he remembered that the deceased had stolen his dogs. He said he was infuriated by this situation, and as a result, he decided to go to the deceased’s village to confront the deceased about these two issues. Along the way, he encountered PW2, A2, Kobeli, Nkholi and others. He informed them about his mission, and they decided to join him on his journey. [64] They went to the deceased’s house, but they did not find him. They tried his friend’s house, but they still did not find him. Ultimately, they managed to get the contact numbers of the deceased. A2 called the deceased, and they waited approximately 20-30 minutes before the deceased arrived. Later, the deceased emerged, and A1, A2 and Kobeli approached the deceased. [65] DW1 stated that he inquired from the deceased about impounding his cattle and the theft of his dogs. The deceased replied that: “**u ntloaela hampe** ”, and at the same time struck A1 with a stick on the head, and A1 retaliated with a strike. The deceased then ran off and A2 caught up with him by the blanket. It was at that time that A1 told A2 to let go off the deceased, as A1 was satisfied that he had retaliated. A1 said A2 freed the deceased, and the deceased entered the yard. [66] It is a matter of common cause that A1’s parental cattle had been impounded by the deceased. A1 said that he was infuriated by this fact, coupled with the fact that previously the deceased had stolen his dogs. It is further a matter of common cause that these two factors caused A1 to go to the deceased to confront him. [67] It is worth mentioning that the court asked DW1 why he did not report his grievances to the authorities such as the headman or the deceased’s parents. He replied that it was an oversight on his part. It is worth noting that A1 was armed with a stick on that fateful day. It is important to note that A1 and his companions searched for the deceased at two different locations, without success. After they obtained his contact numbers, they waited for about 20- 30 minutes for the deceased to arrive. This piece of evidence shows that A1 and his companions were desperate to meet the deceased. As soon as the deceased emerged, A1 and A2 approached him, and an altercation ensued. The deceased then fled from A1 and A2 according to PW2. A1 denied that he chased the deceased; instead, he reprimanded A2 for chasing the deceased. [68] The evidence of PW3 is to the effect that earlier, he heard the deceased, who was approaching the house, singing. However, the singing stopped, and he heard someone running into the house and locking the door. This piece of evidence corroborates that of PW1 that the deceased ran into the house and locked the door. PW3 peeped through the window and noticed two unidentified people. The evidence of PW3 indicates that the deceased was walking home peacefully, singing. Suddenly, singing stopped, and he heard the deceased running into the house, and she saw two people. The evidence of PW1, PW3, and PW2 points to the conclusion that someone was chasing the deceased. The question of who chased the deceased has been addressed by the evidence of PW2, who was not challenged to say that A1 and A2 chased the deceased. Circumstantially, the evidence of PW3 that she saw two people, reinforces PW2’s evidence that A1 and A2 are the two people who gave chase after the deceased. [69] Having analysed and evaluated evidence, it is essential to mention that the accused is charged with sharing a common intention to pursue an unlawful purpose together, with the intention of causing the death of Motlatsi Khajoane. [70] Adv. Phooko submitted that the circumstances before the commission of the offence, during the commission of the offence and after the commission of the offence are relevant in deducing the intention of the accused. The court agrees wholly with this proposition. In evaluating these circumstances, the court has considered A1’s evidence that he was infuriated by the conduct of the deceased. Having made the decision to confront the deceased, A1 looked for the deceased in all the places he thought the deceased could be. This shows that A1 was so desperate to find the deceased that, after making the call, he patiently waited for the deceased to arrive. When the deceased arrived, he approached him together with A2. When the deceased fled from them, A1 and A2, according to PW2, chased the deceased until he reached the front of the house, which the court takes to be the kitchen entrance. PW2 said when they returned, each reported how they participated in assaulting the deceased. It is worth reiterating that even the evidence of PW3 supports the evidence that two unidentified people were seen after the deceased had entered the kitchen. The totality of the conduct of A1 shows the intention to commit the offence the accused is charged with. [71] _In casu_ , no evidence was presented that A1 and A2 had prior agreement to attack the deceased. However, there is evidence that places A1 at the crime scene. A1 and A2 approached the deceased, and shortly thereafter, the deceased ran away. The deceased ran away because he had been stabbed with a knife and struck with a stick. According to A1, when testifying in his defence, he said that when A2 caught the deceased by the blanket, he reprimanded A2 and told him to free the deceased. Be that as it may, it is essential to mention that during the cross-examination of PW2, A1’s version was never put to PW2. To make matters worse, the defence did not challenge PW2’s evidence that he chased the deceased towards the house. The court was therefore denied an opportunity to hear PW2’s reaction to the defence’s version. The conclusion in these circumstances that A1’s version is an afterthought and fabrication is inevitable. [72] The crown has presented evidence that A1 intended to make a common purpose with A2, who actually inflicted fatal stab wounds, and A1 manifested his sharing of the common purpose with A2 by striking the deceased with the stick and chasing him, thus associated with the conduct of A2. The crown’s evidence shows that A1 was infuriated by the deceased’s conduct, set out to look for the deceased until he found the deceased. At all material times, A1 was armed with the stick, which he struck the deceased with, and then associated with A2, who was assaulting the deceased, and both chased the deceased. This piece of evidence shows that A1 had the requisite _mens rea_ and intended the ensuing result. The evidence further shows that A1 performed his own act of association by striking the deceased with the stick and chasing him, and therefore was reckless whether or not death would ensue. [73] On the other hand, Adv. Mokobori argued that the fatal stab wounds were inflicted by A2, and the actions of A2 could not be imputed to A1, as A1 did not actively associate with the actions of A2. The defence is wrong, because according to the doctrine of common purpose, as demonstrated in the preceding paragraphs, A1and A2 associated together in a joint unlawful attack on the deceased by assaulting him and chasing him, and it is irrelevant that fatal stab wounds were inflicted by A2, because in casu A1 and A2 had a joint unlawful criminal undertaking, therefore A1 is responsible for the criminal act committed by A2 in the furtherance of their common purpose. **SELF-DEFENCE** [74] During the cross-examination of PW2, the defence suggested to this witness that A1 used his stick to defend himself from the deceased’s attack. When A1 testified in his defence, he stated that he approached the deceased and confronted him about impounding his parental cattle and the stealing of his dogs by the deceased. He stated that the deceased uttered the following words: “**u ntloaela hampe** ”, and then the deceased hit him with the stick on the head, and he hit him back. In a nutshell, A1 raised the defence of self-defence. **THE LAW** [75] _Section 20. (1) of the Penal Code Act, 2010_ provides that: _“No person shall be criminally responsible for the use of force in repelling an unlawful attack-_ 1. _Upon himself or herself or another person if-_ 1. _It was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ 2. _The degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances._ 2. _Upon his or her property or the property of another provided that the means he or she chooses and the degree of force he or she uses in so doing are reasonable in the circumstances.”_ [76] For the defence of self-defence to be successful, three conditions must be met. First, there must be an unlawful attack on the accused. Second, in the circumstances at the time, it was not reasonable for the accused to retreat. Lastly, the degree of force used by the accused must have been reasonably necessary to prevent the attack. These are the requirements outlined in _section 20 (1) of the Penal Code Act_. [77] Be that as it may, the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex_**** _**[12]**_****_,_ **where **Ramodibedi P** had this to say: At this stage I should like to repeat what l said in the Court of Appeal of Botswana in the case of **_Bobe v The State_**[13]**,** (**Grosskopf JA** and **Lord Coulsfield JA** concurring) remarked: _“Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility, then the accused is entitled to an acquittal.**SeeS v Ntuli**[14]****. _ _As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker._ 2. _The means he used in defending himself were not excessive in relation to the danger._ 3. _And the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.**See R v Attwood**[15]****.”_ **ANALYSIS AND DISCUSSION – SELF-DEFENCE** [78] It is worth reiterating that during the cross-examination of PW2, the defence suggested to him that A1 used a stick to defend himself against the deceased. It appears that the defence was too casual in their approach, as they did not elucidate their defence to the crown witnesses. While testifying in his defence, A1 stated that he approached the deceased and confronted him about his two concerns. He went further to state that the deceased replied that: “**u ntloaela hampe** ”, and then the deceased hit him with the stick on the head, and in self-defence, he hit the deceased back. [79] During the cross-examination of A1, A1 admitted that his version —that the deceased said, “u ntloaela hampe” —was never put to the crown witnesses. In the same token, A1 admitted that his version that after the deceased had uttered those words, the deceased hit him with the stick on the head was never put to the crown witness. It is important to note that PW2 was present when A1 and A2 approached the deceased. He witnessed A1 and A2 chasing the deceased up to the front of the house. Be that as it may, the defence failed to put it to PW2 that the deceased insulted A1 and struck him with the stick on the head. It should be remembered that the purpose for cross-examination is to put the defence case to the crown witnesses, not only for the court to know what the defence of the accused is, but also for the court to hear the reaction of the crown witnesses to the accused’s defence, and for the court to observe the demeanour of the crown witnesses when answering questions. In this case _,_ the court has been denied the opportunity to hear the reaction of PW2 to the accused’s version that the deceased insulted A1 and struck him with the stick. This court holds a strong view that Adv. Mokobori, with his vast experience, could not have mistakenly overlooked presenting the accused’s version to the crown witnesses, but this suggests that the defence fabricated its defence as the trial progressed; therefore, it was an afterthought. [80] While on the issue of self-defence, this court has considered the credible evidence of PW1, PW2 and PW3, which in totality corroborates each other that the deceased was chased until he entered the kitchen, wherein the deceased locked himself in. PW2 saw A1 and A2 chasing the deceased after an altercation had ensued. It was during that altercation that the deceased was stabbed, and he ran off after he had been attacked. The court finds that the deceased was not stabbed during the chase, because he did not sustain injuries at the back, but all three wounds were inflicted on the chest and abdomen. Both PW1 and PW3 corroborate each other that the deceased, upon entering the house, locked the door. The deceased locked the door because he wanted to keep his attackers away from him while he sought refuge in the house. A1’s version that the deceased struck him with the stick is not reasonably possibly true, because A1 and A2 ambushed the deceased and started attacking him. That is why PW3 stated that the deceased immediately stopped singing and ran to the house. The singing stopped when A1 and A2 attacked the deceased. The court has further considered the credible evidence of PW2 that A1 stated that he hit the deceased with the stick, while A2 stated that he stabbed him with the knife. When testifying in his defence, A1 stated that blood covered his face due to the head injury inflicted by the deceased. It is surprising that during the cross-examination of PW2, this suggestion was never made to him, considering he was present at the crime scene. Again, the court finds that it is highly unlikely that Adv. Mokobori, with his immense experience, could have overlooked the fact that goes to the heart of the defence of self-defence. It is surprising that PW2 never mentioned seeing blood on A1's face. On this issue, the court finds that A1’s version that the deceased struck him with the stick on the head is a fabrication and an afterthought. [81] That fact would go to the heart of self-defence, because it would show that indeed the deceased struck at A1. This goes further to show that A1’s version that the deceased hit him with the stick is a fabricated story by the accused. The totality of the evidence points out that both A1 and A2 were the aggressors because they attacked the deceased, who did not pose any danger to them. Not only did they attack the deceased, but they also assaulted the deceased with dangerous weapons. After inflicting the injuries on the deceased, when the deceased fled for safety, they pursued him up to the front of the house. Their conduct indicates a clear intention to attack the deceased. It should also be noted that A1 and A2 searched for the deceased at several locations, and when they could not find him, they obtained his contact information. Having called him, they patiently waited for him for about 20- 30 minutes. This conduct also shows that A1 and A2 were determined to accomplish their mission of attacking the deceased, and the motive for A1 was that the deceased had previously stolen his dogs, and on the fateful day, the deceased had impounded his cattle. The court also considered the fact that A1 said he was infuriated by the deceased’s conduct; therefore, he was fuelled by anger to attack the deceased. The court therefore rejects A1’s version that he wanted to confront the deceased about the two issues that aggrieved him. Rather, the court finds that A1, upon receiving the report that the deceased was the one responsible for impounding his cattle, formed an intention to go to the deceased’s village to attack him. This is evidenced by the fact that immediately when the deceased emerged, A1 did not waste time; he approached the deceased and attacked him with A2. [82] The court finds that the crown has managed to discharge its onus by proving beyond a reasonable doubt that the accused intentionally and unlawfully killed the deceased. **CONCLUSION** 1. The accused is found guilty of murder with _dolus eventualis_. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [83]_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._ [84] In the case of **_Lefaso V Rex_**[16], **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._ ” [85] In **_Letuka v Rex_**[17], **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[18]. [86] 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_**[19] and **_S v Petrus_**[20]. [87] 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,_**[21] **_Rex v_** **_Mohlalisi and Others,_**[22] 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._**[23] [88] 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**[24]**.”_ [89] The court concludes that the following extenuating circumstances exist in favour of the accused: (a) The accused has been found guilty of murder with _dolus eventualis_ ; thus, there is an absence of _dolus directus_. (b) The accused was provoked by the fact that the deceased had previously stolen his dogs and impounded his parental cattle. (c) The accused has a rural background, as he resides in a rural village of Boleka and is a herd boy. (d) The accused took a lesser part in the commission of the offence. (e) The accused had an emotional conflict with the deceased since the deceased had previously stolen his dogs and impounded his parental cattle. [90] The court has now reached the final stage of the trial, which is the imposition of the appropriate sentence. It is trite that in passing sentence the court must consider the seriousness of the offence, the interests of society, the interests of the accused, and the interests of the deceased’s family. [91] In mitigation of sentence, Adv. Mokobori submitted that the accused is the sole breadwinner in his family as well as in the extended family. The accused is a married man with two children, aged 13 and 1.6 years old. The accused’s wife is unemployed. The accused is the first offender. The accused is self-employed as a farmer. The defence pleaded with the court to temper justice with mercy in sentencing the accused. Lastly, the defence submitted that the accused took a lesser part in the commission of this offence. [92] In aggravation of sentence, the Crown submitted that, for deterrence purposes, the court must ensure that offenders are appropriately punished. Crown submitted that murder is a serious offence as it attracts capital punishment. Adv. Phooko argued that murder not only ends life, but it leaves a severe pain in the family members of the deceased. He further submitted that the interests of society call for a sentence that will deter other potential offenders from committing similar offences. [93] This court, in passing an appropriate sentence, has considered that the accused is a first offender, indicating that the accused is someone who is not prone to offending against the law. The court views the accused as a fallen angel, deserving a second chance in life. The court has further considered that the accused is the primary breadwinner in his family, as his wife is unemployed. The court has considered that the accused took a lesser part in the commission of this crime, as he did not inflict fatal stab wounds. [94] The court has further considered that the incident occurred in 2013, which means it took place approximately 12 years ago. The accused has been living with the uncertainty of his fate for the past 12 years. It has finally taken this long for him to learn the outcome of his case. This prolonged situation has impacted him emotionally and psychologically, and the court views this uncertainty as punishment in itself. [95] In passing the appropriate sentence, the court has considered that the accused was provoked by the fact that the deceased had stolen his dogs and impounded his cattle. Further, the court has considered that the accused was 24 years old at the time of the commission of this offence, thus a youth. The conduct of the accused during the commission of this offence indicates that the accused acted out of immaturity. I have also considered that the accused's rural background contributed significantly to the way he conducted himself in the commission of this offence. [96] In passing an appropriate sentence, this court has considered that, after the commission of this offence, the accused fled the country for approximately four months. However, eventually the accused came to his senses and surrendered himself to the Police. This behaviour indicates that the accused was remorseful for his actions and was willing to stand trial until the matter was finalised. His behaviour further shows that the accused was prepared to account for his actions. The accused’s conduct further shows his respect for the courts of law. [97] This court has considered that murder is a serious offence which deserves harsh punishment. The court must send a strong message to other potential offenders that murder shall not be tolerated. This court believes in the sanctity of human life and that no one has the right to take away the life of another person, as life is God given. [98] In passing an appropriate sentence, the court has considered the pain the family of the deceased felt at the passing of their loved one. No sentence will make the deceased come back, but the family of the deceased should see that justice has been done in the matter. In passing sentence in this matter, this court has blended its sentence with mercy, so that it does not completely close the door on the accused, as the accused deserves a second chance in life. [99] The court concludes that the most appropriate sentence to serve the interests of justice is as follows. **Order** 1. The accused is sentenced to ten (10) years' imprisonment. My Assessors Agree. **_______________________________** **T.J. MOKOKO** **JUDGE** **FOR THE CROWN :** ADV. PHOOKO **FOR THE ACCUSED :** ADV. MOKOBORI * * * [1] _1974-1975 LLR 201_ [2] _Ramakatsane 1978 (1) LLR 70 at page 73-74_ [3] LAC 2000-2004 710 on page 729 [4] _1983 (4) 57 (A)__at 64-65_ [5] _supra_ on page 729 [6] 1969 (2) 637 (A) at 640 F- 641 [7] 1963 (1) S.A 692 (A.D) at 694 F-H and p.695 _**[8]**____1989 (1) SA 687_ _at 705-706 B_ [9] _2 nd Edition at page 393._ [10] 1993 (1) SA 777 (A) SACR 67 (G) [11] _1993 (2) SA 765 (A)__at 772 D-E_ [12] LAC (2009 – 2010) at Page 7 [13] [2006] 1 BLR 254 (CA) at 257 [14] 1975 (1) SA 429 (A) [15] 1946 AD 331. [16] LAC 1990- 1994 44 [17] LAC 1995- 1999 405 [18] LAC 1995-1999 at P 405 [19] 1980 (3) SA 825 (A) [20] 1969 (4) SA 85 (A) [21] 1992 (1) SACR 628 (C) [22] LAC (1980 – 1984) 110 at 117 [23] 1990 (1) SACR 426 (A) [24] LAC 1995 – 1999 at P 423