2.1 PW1 was ‘Mamaaooa Letsoalo. She was with the deceased when he got shot. Her evidence was that she was sitting with the deceased outside her shop around 10:00am while the deceased was enjoying some food. There arrived the accused and upon his arrival, the witness observed that he and the deceased were looking at each other.  It was then that the accused asked the deceased this question “why are you looking at me?”. The Accused went on to say and I paraphrase, “I heard that you have been consulting witch doctors trying to kill me”. The deceased then stood up and went some distance away. The accused then pulled out a firearm and shot the deceased near the chest. The deceased fell to the ground. The accused left immediately thereafter and the deceased was taken to the hospital.

2.1.1Upon cross examination, the witness testified that when accused asked the deceased why he was looking at him, the deceased’s response was “what were you looking at me that made you see that I was looking at you”. Then the accused replied by saying “I hear that you have been consulting a witch doctor in attempt to kill me”. The deceased’s response to this was “you will give me the person who said so”.  It was put to this witness further that after the accused fake slapped the deceased, he turned away and went towards his vehicle and that was when the deceased then shouted at him saying “I know that you have a gun, come and shoot me and see you will not succeed”. Upon those words, the accused then immediately turned around and shot the deceased. The witness confirmed that she heard deceased utter those words. However, the only time accused went back towards his vehicle was after shooting the deceased.

2.1.2 It was also put to this witness by defence counsel that the accused was going to show that when deceased was uttering those words, he was going towards the accused. The witness denied this by saying the deceased took a different direction from that of the accused.

2.2 PW2 was Malesitsi Mohono. She was, at the time of the commission of the offence, a shopkeeper at PW1’s shop. Her evidence was that on that fateful day, it was during the morning hours. PW1 and the deceased were sitting outside the shop talking. There arrived the accused and he greeted the people who were outside. Then she heard the accused asking this question “why are you looking at me?”. However, the witness did not hear the response to this question as she was already inside the shop. Afterwards she heard a gun report and she quickly went outside where she found the deceased having fallen to the ground. The accused by then was entering his vehicle. Then deceased was taken to the hospital. After a few days she heard that deceased had demised. 

2.2.1 During cross examination, the Defence Counsel put to this witness that the accused was going to tell the Court that deceased was a troublesome person who used to terrorize the fellow villagers and he also used to drive his cattle into other people’s fields. The witness could not confirm this.

2.3 PW3 was Mampiti Letsie. She knew the accused as the principal chief of Tŝakholo as well as what she termed in her own words the killer of her husband. Ordinarily, the court would have intervened to correct this statement and protect the innocence of the accused, but I understood that these words come from a grieving widow and she merely uttered them from a place of grief.

2.3.1 Her testimony proceeded to reveal that on the day in question, she went to the clinic immediately after it was reported to her that her husband had been shot. Upon arrival at the clinic, she observed that her husband had a wound above the left breast which was bleeding profusely. He was attended to by nurses and was afterwards transferred to Mafeteng hospital. Upon arrival at Mafeteng Hospital, her husband was again transferred to Queen Mamohato Memorial Hospital in Maseru (QMMH).

2.3.2 He was admitted at Queen ‘Mamohato Memorial Hospital on the 18^th May and was discharged on the 27^th May. The witness was the one who fetched him from the hospital upon discharge. According to her, when she fetched the deceased from the hospital, he was in a worse condition than when he was admitted. It later transpired from the evidence of the doctors, as it will later transpire, that he came out as a paraplegic, a condition that resulted from the gun shot. I once again intersect to say that what this witness observed was from a point of view of an emotional wife. This will be contrived with the view of medical practitioners as will later transpire.

2.3.3 On the 2^nd June, the deceased’s condition became worse and he was taken to Ntŝekhe Hospital where he died the following day.

2.3.4 During cross-examination, this witness was asked whether there were any instructions she was given at Queen Mamohato Memorial Hospital with regard to caring for the deceased’s wound. The witness’s response was that there were no instructions given to her. She was asked how she took care of the wound and she responded that she cleaned the wound with Dettol (a common antiseptic fluid).

2.4 PW4 was No.51711 DPC Mokala who was a member of Lesotho Mounted Police Services stationed at Tŝakholo Police station. His testimony was that on that day in question, he was in the company of PW5 at work. The accused arrived carrying his gun. The accused then gave him and PW5 the information that he had just shot the deceased. He handed over the firearm. He and PW5 then proceeded to the scene of crime leaving the accused at the Police Station.

2.4.1 On arrival at the scene, they found that the deceased had already been taken to the local clinic. Upon examining the scene of crime, they found a bullet shell and they took it as part of their evidence. They then hurried to the clinic where they found deceased being attended to by nurses.  They examined the deceased and found that he had an open wound above the left breast.

2.5 PW5 was No.68859 DPC Tsietsi. His evidence was that after examining the deceased he and PW4 went back to the station where on arrival he gave the accused a charge of attempted murder. This charge was later changed to murder after deceased’s death.

2.6 INFORMAL ADMISSIONS

At the commencement of the trial, the following were read into the record as admitted evidence. I will tabulate them in the order they were given and their markings.

2.6.1 The court’s exhibit 1 was a form, commonly referred to as Police (LMPS)12. It stated that a gun was submitted to Police following the allegation that it was used by the accused in the commission of the crime, (who in the form is mentioned by name and rank), to shoot the deceased, who is also mentioned by name. This form continues to tabulate the exhibits that were handed to the police. it states;

2.6.1.1 EX A in the form is stipulated as a 9MM Taurua Auto Pistol S/No. TRK 85289 which was seized by P/C Tsietsi on the 18^th May 2020 from the suspect.

2.6.1.2 EX B is 1x9MM Shell which was collected from the scene of the crime on the 18^th 05 2020 by P/C Tsietsi.

2.6.2. The court’s exhibit 3 was the post mortem report. According to the report the following was disclosed;

The body of Tsénolo Letsie was examined on the 03/06/20. That the result of my observations a schedule of which is appended, I have formed the opinion that death occurred due to traumatic perforation of the heart with internal bleeding.

2.6.3 Exhibit 4 was the Ballistic Report by Supt Mokoteli, who states that he examined the firearm 9MM S/no.85289 and a cartage case. After narrating the analysis, the forensic expert concluded that “there is strong evidence that the firearm in 3(i) had been used to fire exhibit in para 3(ii).

2.6.4 Exhibit 6 was the identifying statement of Mpiti Letsie. He identified the corpse of the deceased. He is the son of the deceased.   

3. THE DEFENCE CASE

The defence then led the evidence of the following witnesses:

3.1 DW1 was the accused Khoabane Mojela. He testified that he is the principal chief of Tebang, Tŝakholo and Seleso. On the fateful day, he said he had gone to the shop to see one friend of his. Whilst there, he saw the deceased and PW1 sitting down in front of PW1’s shop. He approached them and greeted PW1 as he and deceased were not on talking terms. However, he realized that deceased was looking at him in what he said was a bad way as a result of which he asked him why he was looking at him.

3.1.2 The deceased responded by asking him why he was also looking at him. The accused then went to where the deceased was and fake slapped him and told him that he (deceased) had been consulting traditional doctors to get him (accused) killed.

3.1.3 It was at this time that the deceased walked towards his vehicle. As he did that, deceased then told the accused that he knows accused has a gun and dared him to kill him. His evidence was that the deceased seemed to be taking the direction of the accused. As he knew that the deceased had a gun, he (accused) then turned and shot him (deceased). He thereafter then drove his vehicle to the police station where he reported the matter to the police.

The accused further testified that he used to have a mental condition. This he said, was around the period when this incident of shooting occurred. His testimony was that he had not taken his medication on that day of the shooting incident.

3.1.4 It was also the testimony of this witness that there had always been bad blood between him and the deceased. He traced this bad blood from the time when he (the accused) was still a young man and his father was still the principal chief. He found the deceased a distasteful man who had ascended into the position of headman by bribing his father. He testified that once he had assumed his position as principal chief, he regularized the situation by removing the deceased from the administrative position he had inherited from his father. He did this by installing a family which he said was well deserving of the position. The relevance of this testimony will be realized later, safe to state that it talks to the issue of the ill feelings that the accused harbored against the deceased. 

During cross examination, the accused admitted that he never saw the deceased carrying a gun on that day. His evidence was that he knew that he had one. He also confirmed during cross examination that he shot the accused because the accused had risen from his seat. He also said that, as far as he was concerned, the way in which the deceased looked at him posed a danger to him as he felt threatened. It was also during cross examination that he admitted that he fake-slapped the deceased and his reason for this was that he took offence when the deceased responded to his question. He closed his testimony by accepting that his behaviour on that day did not demonstrate the character of a good person.

3.2 DW2 was Dr Ngoy-Was-Banza. He testified that he is a medical doctor working at Scott Hospital in Morija. His testimony centered mainly on the incidence when accused had been taken to Scott hospital as a patient.

3.2.1 He testified that on the 07^th November 2019, the accused was admitted at Scott hospital as a patient who was epileptic. He displayed violent behaviour symptomatic of epilepsy. He was released from Scott Hospital five days later and was put on medication that corrects a patient’s mood and suppresses his violent behaviour. On the doctor’s instruction, he was to take the prescribed medication for life.

3.2.2 It was the doctor’s evidence that the accused’s hospital booklet showed that he might have defaulted taking his medication as the booklet (known as” bukana”) shows that accused never went for check-up at any other clinic where the same medication would have been given to him. During cross examination he confirmed that, there is no record in the accused’s hospital booklet where it indicated that he had seen any other doctor for his condition post his hospitalization.

3.2.3 The witness handed in as evidence the accused’s medical record at Scott hospital dating from 7^th November 2019 when he was admitted, together with his medical booklet. Collectively they were marked exhibit 6. This record confirms that the accused was an epileptic patient. It also reveals that he had had a history of epileptic fits before his admission at Scott Hospital.

3. 3   DW3 was Dr Daniel Miyebe who at the time of testifying, was a medical doctor working at Queen Mamohato Memorial Hospital.

3.3.1 He was called to give evidence in relation to the deceased’s admission at Queen Mamohato Memorial Hospital. He had the deceased’s hospital records with him. He testified that he had had an occasion to attend to the deceased twice during his stay at the hospital. He was however not the only doctor who administered treatment on the deceased as there were also other doctors who did so.

3.3.2 His evidence was that deceased was a patient who was admitted having been referred to Queen Mamohato Memorial Hospital by Mafeteng hospital due to a gunshot wound on the upper chest.

3.3.3 On arrival at the hospital, his vital signs were normal, however, he had no sensational feeling on his legs, as a result of which he could not walk due to the paralysis of lower limbs. This was caused by a gunshot. An X-ray was taken and it revealed signs of contusion on the lungs. A further assessment showed that he also had spinal cord injury. The deceased was then put on medication and was later discharged nine days later as his wound was healing. He handed in to the court the full record reflecting the admission of the accused from the date when he arrived and the date he was discharged. This record was marked exhibit 7. Advocate Makhera inquired from this witness whether the administration of Dettol on the wound of the deceased could have anyway interrupted his healing process resulting in his death. The doctor’s response was that since Dettol was an antibiotic, it could not have caused any harm to the wound.

3.4 Advocate Makhera questioned this witness about whether the pathologist had been correct in determining the cause of death as he did in the post mortem report. This witness’s response was that since he had not placed the deceased on an MIR, he could not commit to the cause of death as stipulated. He however said that the pathologist has the last word on the cause of death.

DW4 was Dr. Kayembe Kabengele. He testified that he was at the time of testifying, a medical doctor working at Ntŝekhe Hospital in the district of Mohale’s Hoek. His evidence was based mostly on the deceased’s records of admission at Ntsékhe Hospital. It was his evidence that the hospital records showed that the deceased was a patient of sugar diabetes as well as hypertension. He also had decreased sensation on the lower legs. The deceased at the time of admission also had lung contusion due to a gun shot, as a result of which he had respiratory problems. Asked what, according to him could have been the cause of death, he testified that the pathologist carrying out the post- mortem is better placed to determine the cause of death.

This was the end of the defense’s case.

[5] THE GUILT OF AN ACCUSED PERSON IN CRIMINAL TRIALS

5.1 Of paramount importance in criminal trials and in determining the ultimate guilt or otherwise of an accused person, is the cardinal requirement that the prosecution ought to make out its case beyond a reasonable doubt.[1] This trite principle which is the subject matter of any judgement dealing with the onus of the state, requires that the prosecution should have led evidence the substance of which points towards the guilt of the accused. If the evidence is lacking according to these established principles of evidence alluding to proof, or the substance of the witness falls off due to credibility, then the state has failed to discharge the onus placed on it by law and an accused stands to be set free.[2] No onus is placed on the accused. It is only where the state has, when it closes its case, established a prima facie case that the accused can exercise the right to rebut the evidence.

This therefore means that, as a starting point, the court should ask this pertinent question; “has the state proved its case beyond reasonable doubt”?

5.2 To this end, the prosecution, through Advocate Mofilikoane called the witnesses as shown in the preceding paragraphs. I now turn to the analysis of the evidence to establish whether the crown has proved its case.

5.3 The essence of the evidence of PW1 Mamaooa Letsoala was to establish that on the fateful day, the accused approached her and the deceased while they were sitting by her business premises enjoying a drink. They were sitting outside. In a strange turn of events, what commenced as a greeting, which is customary in our culture, quickly became a confrontation. This was triggered by the accused asking the deceased why he is looking at him. To which the deceased, matter of factly responded by asking the accused what he was looking at that made him(accused) realize that he (deceased) was looking at him. The accused then proceeded to make accusations that the deceased was rumored to have consulted witchdoctors with the intention of killing him.

5.4 This seems to have somewhat provoked the accused who then approached the deceased and fake slapped him. He actually did not, hence the use of the term fake-slap. This did not illicit any response from the deceased except to dodge the intended but not real slap.

5.5 What took place thereafter, is that when the accused was leaving, the deceased uttered the words that he knows the accused has a gun and he dared him to shoot him. After uttering these words, the accused shot the deceased.

5.6 The cross examination of this witness (PW1) centered around establishing that the deceased had stood up and the deceased shot him because he felt threatened by this particular action, since he knew that the deceased owned a gun. To this the witness, obviously claimed to have no knowledge. She was adamant however that when the deceased stood up, he took the opposite direction from that which the accused had taken. She also could not be drawn to accepting that she heard the accused professing that the deceased had a gun. She however witnessed when the accused took a shot at the deceased. She testified that the deceased was shot on the chest. The shot at the chest indicates that the deceased and the accused were facing each other.

PW1 could be said to be an eye witness because she witnessed the events of the day unfold.

5.7 The substance and importance of the evidence proffered by PW2 Malesitsi Mohono is similar in most respects to that of PW1 in relation to the evidence that there was a gunshot after which the deceased was lying on the ground. She did not identify the accused as the shooter per se. But confirmed a shooting which resulted with the deceased being hurt and taken away. Her cross examination did not shift much from her evidence. It confirmed the notorious question asked by the accused to the deceased asking the other why he was looking at him.

PW1 and 2 corroborated each other in as far as the shooting incident took place. They confirmed the venue and time. And pointed at the accused as the shooter. To this end, the crown established the unlawful act -actus revs.

5.8 PW3 was the widow of the deceased. She is Mampiti Letsie. Her evidence focused on the post shooting events and the journey of the medical interventions administered on the deceased. All in all, her evidence was to the effect that the deceased was taken to various medical institutions, beginning with the local clinic and eventually to Mamohato hospital which is the biggest referral hospital in the country. She outlined those two (2) weeks after the deceased was discharged, whilst still nursing the deceased, she realised that his health was deteriorating and she took him to Ntŝekhe Hospital in Mohale’s Hoek. It was there that he met his demise.

5.9 I propose to deal with the focal point of the cross examination of this witness, for it is here that the accused founded one of his defences. More will be said about the plural reference to the defences of the accused. Advocate Makhera, when cross examining this witness, buttressed and hammered the point that, it was this witnesses’ failure to follow the instructions of the doctor relating to post hospilization care, that led to the death of the deceased. That failure to nurse him properly or to adhere to the doctor’s instructions, constituted a novus actus intervenes. To be more specific in his cross-examination, Advocate Makhera centered on this piece of testimony by this witness. She had said the doctors never gave her instructions on what to do as after care treatment. This was contradicted by the doctor [DW3] who testified that they had given her after care instructions.

5.10 The cross examination of PW3 also focused on establishing that the deceased possessed or owned a gun during his lifetime.  The witness responded by testifying that she did not know. The purpose of this question was for the defence to lay a foundation for another defence they had against the charges, namely self-defence. More will be said about the issue of the deceased owning a gun. Suffice to state that this witness denied any knowledge of her husband owning a gun. In my view she seemed a genuine and an honest witness.

5.11 The next two (2) witnesses were the police who attended the scene. They confirmed that there was a shooting and initially the accused was charged with attempted murder which was later commuted to murder once the deceased passed on. They confirmed and identified the accused as the shooter. PW4 also testified that the accused handed himself over to the police immediately after the shooting.

5.12 The cross examination of the police officers also centered around whether the deceased owned a gun to which the police officers pleaded ignorance. It was after the evidence of the police officers that the crown closed its case. In essence there was no evidence that proved that the accused owned a gun. Or that on the fateful day, he had one in his possession.

[6] ACTUS REUS AND MENS REA

6.1 At the close of its case, the crown alleged that it had established the actus reas which was the shooting by a gun. The gun was discharged by the accused there being an eye witness to this effect. The mens rea they said, was in the form of dolus directus in that the accused targeted and shot directly at the deceased. The death of the deceased was confirmed also by the admitted post mortem report, exhibit 3. According to the crown’s submissions, the traumatic perforation of the heart with internal bleeding resulted from the gun shot and no other cause.

6.2 It was also the case of the crown that the gun handed in by the accused was proven by the forensic analysis to be the one which he used to shoot the deceased. (LMPS 12 and forensic report admitted statement).

6.3 Thus, when the crown rested it had, according to the submissions by advocate Mofilikoane made out its case. The case being that the death of the deceased in the charge sheet was caused by the unlawful intended act of the accused. All the elements of Sec 40 of the Penal Code were therefore satisfied.

[7] THE DEFENCE CASE

7.1 As has been indicated above, at the close of the crown’s case, the defence elected to lead evidence to establish its defence. The defence raised on behalf of the accused can best be described as ‘a quiver full of arrows.’ Where the toxophilite simultaneously dispenses multiple arrows with the hope that one will hit the target. The danger with this approach by advocate Makhera is that a defence which excludes actus reas is not compatible with one that excludes mens rea. For instance, if a defence excludes actus reas, it presupposes an admission that mens rea existed. The converse is true. To put it into context, if an accused raises the defence of private defence, he accepts the element of mens rea and actus reas, but however justifies the actus reas in that it was justifiable in law to have acted as they did, thus nullifying the unlawfulness of the act. Having laid this foundation, I delve into the concoction of the defences raised and their incompatibility will unravel.

[8] INSANE AUTOMATISM

8.1 One of the defences raised by the accused was insane automatism. This was premised on the testimony of the accused that he had epilepsy as a result of which he acted in a state of automatism. 

8.2 As a result of this defence raised, the defense had called on Dr. Ngoy Was Banza who was DW2. As has been said, in his testimony, he identified himself as a medical practitioner stationed at Scott Hospital in Morija.

8.3 Of relevance to the defence raised, he testified that in 2019, the accused was taken in as a patient at Scott Hospital and was admitted for two (2) weeks. The accused was diagnosed with epilepsy. This therefore means that the defence successfully put evidence before the court that the accused had epilepsy. But that, as I will later reveal, is not the end of the defence. It is a mere foundation. To prove that indeed the accused had epilepsy, the doctor had provided that the accused had displayed bouts of violence hence being brought to the hospital. After a two (2) week stay, he was discharged and was advised to return monthly for check- ups and medication. It was this witness’s testimony that according to their records the accused never came back as was recommended by the medical staff at the hospital.  He also admitted when questioned that, according to the accused’s medical records which were in their custody, including the medical booklet (commonly known as bukana in this jurisdiction) the accused had never gotten medication nor follow up check-ups in connection to his condition. He was therefore a defaulter.

8.4 Relying on this condition to find the defence against the charge, Advocate Makhera in his closing arguments and his heads of argument, submitted that evidence pointed to the accused being epileptic. His argument proceeded to state that since at the time of the commission of the crime he was a defaulter, he acted in an automatic state of epilepsy(automatism). This calls upon the court to outline the law relating to this defence and in so doing, to ultimately conclude whether this defence was raised successfully so much so as to exonerate the accused.

The question therefore becomes, having proved two things, that

1. 1. 1. The accused is epileptic
      2. That he is a defaulter in that he did not take his medication as instructed
      3. That he was a defaulter at the time of the shooting

What then says the law? Can the accused successfully raise a defence of automatism? Is it sane or insane automatism?

[9] EPILESPY- THE LAW.

9.1 Medically epilepsy has been defined as;

An epileptic automatism may be defined as 'a state of clouding of consciousness which occurs during or immediately after a seizure and during which the individual retains control of posture and muscle tone but performs simple or complex movements and actions without being aware of what is happening' (Fenton, 1972). Epileptic automatisms are usually preceded by aural manifestations typical of temporal lobe epilepsy, such as epigastric sensations, confusion, hallucinations, dizziness or feelings of unreality (Feindel and Penfield, 1954).[3]

From the above description, the operative words which are pertinent to criminal liability are;

which the individual retains control of posture and muscle tone but performs simple or complex movements and actions without being aware of what is happening'[4]

9.2 In order for an act to attract criminal liability, it must be voluntary. Therefore, an involuntary muscular movement cannot constitute an actus reus, since the act must be voluntary and willed.  This was clearly articulated by Lord Denning in Bratty v. Attorney General for Northern Ireland, 1961, where he stated,

'. . . no act is punishable if it is done involuntarily and an involuntary act in this context some people prefer to speak of it as "automatism" -means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion, or an act done by a person who is not conscious of what he is doing, such an act done whilst suffering from concussion or whilst sleep-walking.".

9.3 What is the legal status of an epileptic fit? Is it sane or insane automatism? It should be stated that according to the law, insane automatism is due to an internal factor, that is, a disease of the brain, while sane automatism is due to an external factor, such as a blow on the head or an injection of a drug.

Paul et al[5] continue to say this about an epileptic fit;

An epileptic seizure is the result of pathological activity in the brain which is an internal factor. A crime committed during the course of a seizure is therefore viewed by the courts as an insane automatism and the perpetrator of the crime is, in the eyes of the law, insane.

9.4 For guidance on insane automatism, the Penal Code states[6]

The law on insanity

section 19 provides that:

“19. (1) For the purposes of this subsection;

(2), every person is presumed to be of sound mind and to have been of sound mind, until the contrary is proved.

(2) No person shall be convicted of a criminal offence if he or she proves on the balance of probabilities that at the time of the commission of the offence he or she was suffering from mental disorder of such a nature that he or she was substantially unable to appreciate the wrongfulness of his or her actions or that he or she was unable to conduct himself in accordance with the requirements of the law. 

(3) Where proof of mental disorder is established, the court shall return a verdict of insanity and order the detention of the person in terms of section 172 of the Criminal Procedure and Evidence Act 1981.

9.5 This therefore means that if the accused raises the defence of insane automatism, the law places an evidentiary onus on him, to be discharged on the balance of probabilities, that when he committed the crimes with which he is charged, he was suffering from mental illness which rendered him to be incapable of appreciating the wrongfulness of his conduct (cognitive aspect) or while suffering from mental illness which does not debilitate his ability to distinguish between right or wrong, he nonetheless due to its effects, is rendered incapable of acting in accordance with his appreciation of the distinction between right or wrong.[7]

9.6 In the case of R v Stellmacher [8]the question which arose was whether the accused, who was said to have committed the crime in question due to an epileptic fit, would be criminally responsible for his conduct, but would be detained in a mental institution, if not he would be entitled to a complete acquittal. The court concluded that in order to constitute a mental illness or defect it must at least consist in:

"[A] pathological disturbance of the accused's mental capacity and not a mere temporary mental confusion which is not attributable to a mental abnormality but rather to external stimuli such as alcohol, drugs or provocation."

9.7 In S v Cunningham [9] , Scott, J. A, provided a summary of principles and approach to these matters:

“Criminal responsibility presupposes a voluntary act (or omission) on the part of the wrongdoer. Automatism therefore necessarily precludes criminal responsibility. As far as the onus of proof is concerned, a distinction is drawn between automatism attributable to a morbid or pathological disturbance of the mental faculties, whether temporary or permanent, and so-called ‘sane automatism’ which is attributable to some nonpathological cause and which is of a temporary nature. In accordance with the presumption of sanity the onus in the former is upon the accused and is to be discharged on a balance of probabilities. Where it is sought to place reliance on the latter, the onus remains on the state to establish the voluntariness of the act beyond a reasonable doubt. See S v Mahlinza 1967 (1) SA 408 (A) at 419 A – C; S v Campher 1987 (1) SA 940 (A) at 966 F – I; S v Trickett 1973 (3) SA 526 (T) at 530 A – D.

9.8 I therefore have to engage in the inquiry to establish and determine whether the accused has managed to adduce evidence, proving on the balance of probabilities, that, at the time he committed the murder, he was suffering from mental illness or disorder.[10] This is so because,

The legal position regarding insanity is of crucial importance to a sufferer of epilepsy who finds himself in the position of seeking a defence to a 'crime' which he committed unconsciously. The House of Lords in R. v. Sullivan (1983) held that epilepsy is an inherent condition and a disease of the mind, and an act committed in the course of an epileptic seizure is therefore an insane automatism.[11]

I will also be guided by the pronouncements of Blackbeard[12] when he states;

If a person suffering from epilepsy commits an act which would prima facie constitute a crime, his ability to rely on epilepsy as a defence depends largely on whether the conduct occurred before, during or after the state of confusion following an epileptic seizure. If the act is committed before or shortly after the epileptic seizure, the epileptic condition of the person is usually not directly related to the act. The psycho-social circumstances accompanying epilepsy may well cause the person to commit the act, and thus the epileptic seizure itself is not related to it.[13]

The status of a defaulter was particularized in the case of R v Victor[14]

9.8.1 In the case of R v Victor[15] where the accused raised the defence of epilepsy, the court rejected the defence because the accused knew that he was epileptic and knew the effect of the seizures upon him, regardless of that he still drove a motor vehicle. Victor could therefore not rely on his being epileptic as a defence against his unlawful act when he was an intentional defaulter. 

In the same manner, the accused in the present case, knew or ought to have known the effect that epilepsy had on him, as such he ought to have known the effect that having a gun would lead to under his condition. He is therefore not an ideal candidate for owning a gun in his state. This is compounded by the fact that he was a defaulter. As the court said in R v Victor

What befell him was not a visitation impossible, in the ordinary circumstances of life, to foresee and guard against. The appellant could and should have foreseen it and he will know what the consequences would be. Therefore, he cannot take advantage of his disability to avoid responsibility for the failure to have the car under control; and it could properly be held against him, in the circumstances of the case, that he drove recklessly or negligently in that he failed to have his car under proper control.”

9.8.2 Similarly, the issue of recollection of events and blackouts is important where an accused raises the defence of epilepsy. In the case of R v Schoonwinkel [16]the court accepted the evidence and defence based on epilepsy because prior to the crime committed, the accused’s mind went blank and had no recollection of the events that took place.  

On the contrary, the accused in this case could remember every detail of what had occurred when he shot the deceased. This was evidence immediately after the event when he handed himself over to the police. Also the narration of events when he took the stand.

9.8.3 The medical condition of the accused as one who suffers from epilepsy was put to PW1, who obviously denied any knowledge of it. When he took the stand, the accused elaborated on the fact that he is epileptic. He however did not state categorically whether at the time he committed the alleged murder, he was suffering from an epileptic fit or seizure. Neither did he mention amnesia or blackout or going blank as it were. The case of R v Rossow[17] becomes relevant, for in this case, the accused had, after a car accident, checked the state of his car. The court rejected the defence of epilepsy in that his actions were not indicative of automatism but that the accused’s act was voluntary.

9.8.4 Blackburn above, also charges the court to look into psycho-social circumstances accompanying the epileptic fit. Meaning, there should be evidence placed before the court which shows what it is about the events of the day that prove that the incident took place as a result of an epileptic fit. The accused did not put any evidence of these circumstances.  As a matter of fact, he narrated the events of the day with clarity and often times corroborating PW1 whom I said was an eye witness.  He even testified to the fact that immediately after the shooting he drove to the police station and handed himself in and also handed the weapon marked ex 2. There is nothing in his evidence that points towards the automated way in which an epileptics sufferer behaves.

9.8.4 From the totality of the evidence, nowhere was it suggested that there was or could have been an incident or act that had likely provoked the accused. What the evidence reveals is that the deceased was at PW1’s place of business enjoying food. He did not in any manner invite the ire of the accused. What the evidence revealed however is that the accused had a lot of hatred or anger against the deceased. There is nothing that would suggest that on this fateful day, this hatred that the accused seemed to have harbored since childhood, drove the accused to an epileptic fit. According to medical writers a fit manifests itself in total robotic behaviour causing an actor to be totally oblivious to his actions.

9.8.5 The totality of the evidence also suggests that the accused wanted to start a fight or commotion with the deceased.  This is revealed by asking him why he is looking at him. In the normal cause of events when a person joins the company of others and greets them, they turn to look at him. Thus, there was nothing untoward about the deceased looking in the direction of the accused.

9.8.6 The accused continued his display of discourteous mannerisms by accusing the deceased of bewitching him or rather consulting traditional doctors with the intention of killing him. At all times the evidence suggests that the deceased never attempted to do anything aggressive towards the accused. The accused even went to the extent of attempting to slap the deceased. This action of pretending to slap someone is normally done by a person provoking a reaction or retaliation. The evidence shows that the deceased did neither. The tale of the lamb and the fox comes to mind, where the fox accused the lamb of mudding the waters even though the fox was drinking upstream and the lamb was on the bottom end.

9.8.7 The evidence further indicates that when the accused was walking towards his car, he uttered something, then he turned and shot deceased. This evidence was PW1’s testimony and confirmed by the accused.

9.8.8 Both the doctor and the accused never suggested that all these events occurred before, during or after an epileptic episode. The only episode of a violent fit we heard of was the one that occurred when the accused was admitted at Scotts Hospital. There is no evidence before the court marrying the events of the fateful day to an epileptic fit. All in all, the accused behavior could have been strange in the sense of what is expected human behaviour, it however falls shot of the legal requirements that would erode the justify the lawfulness of the act.

9.8.9 The evidence led by the state was to the effect that the accused’s actus reas was a voluntary act. That the medical evidence before court did not point towards the mental incapacitation of the accused since all that the doctor proved was that he is a patient of epilepsy. However, in law, for this to be a defence there has to be evidence that the accused acted when he had an epileptic episode.

9.8.10 The defence of automatism raised by advocate Makhera therefore does not meet the legal requirements. The accused cannot successfully raise it as a defence.

[10] NOVUS ACTUS INTERVENUS

10.1 As has been said, Advocate Makhera raised multiple defences. Some justifying actus reas, some excluding mens rea. The danger with this as indicated earlier is that he is relying on the same set of facts and in so doing he admits disqualifying certain acts as intended but not voluntary. Some as voluntary but not intended. This is indeed a disingenuous method of defending an accused person.

10.2 I now turn to the defence of novus actus intervenus. It was raised in the following manner. That PW3 was negligent in the after-care treatment she gave the deceased once he was discharged from Queen Mamohato Memorial Hospital (herein after called QMMH). That, it was this negligence that led to the demise of the deceased. This negligence was identified as the supervening or interrupting act. An interruption between the shot fired and the ultimate demise of the deceased.

10.3 He has coined the submission as follows in his heads of argument; I will quote the contents of the heads of argument verbatim. They state:

HISTORICAL NURSING OF THE DECEASED

“The deceased was admitted at Tsakholo Clinic after the shooting around 11am on the 18^th May 2020, he was attended there by nurses. He was then transferred to Mafeteng Hospital, where he was referred to QMMH and arrived there around 2040hrs in the evening.

10.4 The deceased was taken care of at QMMH till he was discharged on the 27^th May 2020, classified as fairly stable and his wounds were healing well.

10.5 The deceased was taken home on the 27^th May 2020, where he remained until the 2^nd June 2020 when he was taken to Ntsékhe Hospital with complications. PW3 testified that the deceased developed the complications after few days at home (about the 29^th May 2020).  She says she only took the deceased to hospital four days later (about the 2^nd June 2020).   She says she did not take him earlier because she was hoping that the medication he was given at QMMH would cure him.

10.6 By the time the deceased was taken to Ntsekhe Hospital on the 2^nd June 2020, by the words of DW4, the deceased was acutely ill looking as opposed to the state he was in when he was discharged at QMMH on the 27^th May 2020. And the deceased subsequently died on the 3^rd June 2020.

10.7 The crown has failed to prove that there was no break in the chain of causation from the shooting of the deceased up until his passing on the 3^rd June 2020. No one was called by the Crown to prove that the complications that the deceased developed while at home were related to the shooting in the light that all along the deceased had been healing well. PW3 gave evidence that was wholly rebutted by both DW3 and DW4 pertaining to the wounds of the deceased and his state when he was discharged.

the crown failed to prove that the deceased would still have died had he been taken to hospital in time when he developed the complications while at home. No evidence was advanced by the crown in this regard. The delay caused the death of the deceased and or contributed immensely to his death. A delay of about four days was unreasonable and negligent.

The defence therefore submits that the accused ought to be acquitted on the charge of murder of the deceased (TSENOLO LETSIE).”

10.8 Advocate Makhera relied on the case of Rex v Tanki Moabi[18] to the effect that;

“Novus actus interveniens has a bearing on legal causation. A novus actus interveniens (or nova causa) is an abnormal intervening act which serves to break the chain of events. The abnormality of the intervening act is judged against the standards of general human experience (Jonathan Burchell and John Milton Principles of Criminal Law 2 and end. Juta at 123. As in all criminal cases, the burden of proof of showing that the chain of causation was not interrupted is on the crown, and this it does by proving all elements of the crime including that the accused caused the deceased’s death evidence. Evidential burden only shift when the Crown has adduced a prima facie evidence proving causation. But when after all evidence is considered, there is a reasonable doubt that the accused caused the deceased’s death, the accused is entitled to acquittal.”

10.9 He also relied on and cited section 39 (2) of the Penal Code to enhance his submission. It states:

“(2) A person is deemed to have caused the end of the life of another person if the court is satisfied that-

1. His or her conduct was substantially productive of the death of that person and
2.  There is no substantial legal cause intervening between the original conduct and the death of that person.”

[11] THE LAW- NOVUS ACTUS INTERVENUS

11.1 To ‘kill’ means to cause death, thus the crimes of murder and culpable homicide are only complete if and when the victim dies, and the accused will only be liable if his/her conduct was the cause of death. In all ‘consequence’ crimes, the state bears the onus of proving beyond a reasonable doubt that there is a sufficient causal link between the accused’s initial conduct and the prohibited consequence.

11.2 In order to establish that the accused can be held liable for the death of the deceased, a causal link or nexus should be proved. The case of S v Lungile[19] defined novus actus interveniens as an event which is, in the context of the act that was committed, abnormal, and completely independent of the acts of the accused.

.3 Mokhesi J captured the essence of this defence in the case of R v Tanki Moabi[20]  when he wrote;

Novus actus interveniens has a bearing on legal causation. A novus actus interveniens (or nova causa) is an abnormal intervening act which serves to break the chain of events.  The abnormality of the intervening act is judged against the standards of general human experience (Jonathan Burchell and John Milton Principles of Criminal Law 2nd ed. Juta at 123).  As in all criminal cases, the burden of proof of showing that the chain of causation was not interrupted is on the crown, and this it does by proving all elements of the crime including that the accused caused the deceased’s death. Evidential burden only shifts when the Crown has adduced prima facie evidence proving causation. But when after all evidence is considered, there is a reasonable doubt that the accused caused the deceased’s death, the accused is entitled to acquittal.

11.2 Narrowing down these principles to the present case, Advocate Makhera’s submission on the issue of what constituted a supervening act pointed at two incidences. The first he said was the delay in taking the deceased to hospital. The second was that the deceased’s condition developed complications while he was being taken care of by his wife who did not take him to Ntsékhe hospital but did so after 3 days. I will deal with these submissions chronologically.

11.3 Was the delay in taking the deceased to hospital an abnormal intervening act which serves to break the chain of events, thereby interrupting the chain of events from the accused's gunshot and the death of the deceased?  A scrutiny of the events is necessary to answer this question.

11.4 PW3 outlined the layman’s point of view of what took place after her husband was shot by the accused. She recalled that after she heard of the shooting from PW1’s son she went to Tŝakholo Clinic around 2 pm. Upon arrival, the deceased was lying on a bed. He was in a short space of time referred to Mafeteng Hospital. She engaged in a conversation with him about the shooting. She states in her words that he was bleeding profusely from above his left breast. She left with the medical staff to Mafeteng hospital, where they in turn referred him to Maseru at QMMH. He spent three (3) hours at Mafeteng before he was referred to Maseru. This is a distance of about 77 KM[21], a one (1) hour 25 minutes’ drive. She continued her testimony by stating that, the deceased stayed at QMMH for eight (8) days. According to her at the date of the discharge he was in his worst condition.

11.5 I must be quick to state that this narration comes from a lay person, who is also clouded by emotions, understandably so because she was talking about her husband. I regard her as a grieving widow. Her observations are not only from a lay person but also clouded with grieve. Clarity as to the medical condition of the deceased was given by DW 3 -Dr. Daniel Miyebe.

11.6 According to his testimony, he was not the one who admitted the deceased but he had attended to him during his admission at the hospital. He stated that according to the patient records (which were released by order of this court), the patient was admitted on complaints of a gunshot. The gunshot was at the left side of the chest. He was a known diabetic and was also hypertensive. His vital signs at the time were normal. That is heart rate, respiration, temperature, heartrate, abdomen were all normal. A catheter was inserted for urine. As a result of the gunshot, he had suffered paralyses of the limbs. He concluded his evidence by stating that when the deceased was discharged after eight (8) days, his wound was at the stage where it could be managed outside the hospital and that he should report to the local hospital after two (2) weeks.

11.7 Nowhere in his evidence, even under cross examination did he state that there was extreme loss of blood between the time of shooting and the ultimate admission at QMMH that could have led to the demise of the deceased. In fact, he did dispute that the death could be as a result of loss of blood. He however was quick to admit that the pathologist is best placed to determine cause of death. He effectively rules out any possibility of blood loss as a cause of death. Or a failure to arrest blood loss as a cause of death.

11.8 The evidence of DW3 lays to rest the submission or argument that there was medical negligence which could have interrupted the chain of events between the gunshot and the medical attention given to the patient. The profuse oozing of blood which PW3 testified to was seen through the eyes of a concerned wife. As the doctor said in his evidence, by the time the patient was admitted at QMMH, there was the blood flowing out of the chest(wound) for it had been arrested at Mafeteng. Indeed, he read the admission records, which clearly pointed towards the vitals of the deceased being normal at the time he was admitted.

11.9 This evidence led me to the dictum of Cotran CJ in R v Nthama  [22] stating that

The main enquiry of a murder trial is to find out if the accused factually and legally caused death. It should not, in my view degenerate into a medical enquiry about treatment or lack of it unless there is some evidence that treatment if given was so grossly negligent and but for it death would not have occurred….I find it too fanciful to assume that if evidence of treatment is lacking, that sufficient probability of a novus  emerged, when other medical evidence discounted such a possibility, and when the nature of the wound(or wounds) as disclosed on post mortem , clearly indicates that it was dangerous and may lead to death.”

11.12 I therefore make a finding that there is no medical evidence before the court that shows or proves that the deceased lost a lot of blood whilst on transit to QMMH which could have resulted in his death. On the contrary, at the time of his discharge, the deceased was in a medically manageable position. Whatever loss of blood which had occurred, did not and cannot constitute an abnormal act.

11.13 Counsel for the accused also submitted that PW3 delayed in bringing the deceased to hospital. Also, that she had failed to adhere to the doctor’s orders relating to the post hospitalization care of the deceased.

11.14 This submission is shredded by the post mortem report which was admitted and read into the record. As stated above, It was marked exhibit 3. According to the post mortem report, the deceased died of perforation of the heart and internal bleeding. Two (2) of the doctors could not commit themselves to this except to say only an MRI scan (which both QMMH and Ntŝekhe hospital could not perform due to lack of resources) could detect this. They both stated that in the absence of an MRI scan another conclusive examination which could lead to this conclusion, both DW3 and 4 agreeing, was the pathologist report.

11.15 The post mortem report makes a finding and connects the gunshots to the death of the deceased. It states:

“That it was due to (7) (1) Traumatic preparation Leart with internal bleeding

REMARKS (8) Deceased was suspected to have been shot, he was taken to Tŝepong Hospital, he was transferred to Ntŝekhe Hospital where he died after two weeks. History by police.”

11.16 There being no medical evidence that PW3 was negligent in her care of the deceased which led to his demise, I dismiss the submission by Advocate Makhera that there was negligence which constituted a novus actus intervenus.

In Nthama (above), Cotran CJ stated;

"The Crown, through the evidence of the doctor who did the post-mortem examination adduced prima facie evidence of causation {hunt, supra, p. 342 (C) and thus the "evidential burden" has shifted to the accused. Indeed neither the obiter dicta of Young J in R. v. Mabole (1968 (4) S.A. 811 at 815) on which the learned Judge relied nor the facts of the case itself would indicate that a submission or an argument, or, provided there is acceptable medical evidence on the kind of injuries received and on the cause of death, that lack of evidence about treatment suffices to break the chain. It is only when the question of Novus actus is "properly introduced" (be it by the Crown, the accused or the general tenor of the evidence) that the onus would have to be discharged by the Crown."

11.17 I am satisfied that the Crown has discharged the onus on it and the accused failed to discharge the evidential burden.

[12] PRIVATE/ SELF DEFENCE

12.1 I now turn to look into the final defence raised by the accused. The last arrow in the slot. This is Private/self Defence.  In raising this defence the accused states that because of the animosity that existed between him and the deceased, also because of the knowledge that he heard that the accused had a gun, coupled with the rumours he had heard that the deceased was consulting traditional doctors to kill him, on the fateful day, he suspected that the accused was about to attack him, as a result of which he was apprehensive that the accused might kill him.

12.2 He therefore alleges that he was defending himself against an attack by the deceased on the fateful day.

12.3 I turn to look at the legal requirements of this defence and interrogate whether the accused has satisfied them. Once it is established that he has proved them, he will be discharged. The converse is true/applies.

[13] THE LAW- PRIVATE DEFENCE

13.1 The legal requirements that an accused must satisfy in here to successfully raise this defence is that

1. There must be an attack directed at him
2. The attack must threaten a legal interest- the attack must be unlawful
3. The attack must be imminent or progressive.

13.3 Mofokeng J in R v Hanyane[23] cited the case of R v Attwood[24] and summed up the requirements as thus

"The accused would not have been entitled to an acquittal on the ground that he was acting in self-defence unless it appeared as a reasonable possibility on the evidence that the accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury ..." (See also Rex v Penedo, dated 26th May 1978; S.v. Mokonto, 1971(2) S.A. 319 (A.D.) at pp. 323-4).

13.4 I now turn to the evidence to establish whether the crown had proved beyond reasonable doubt that the accused did not act in self-defence.[25] The accused must lay a proper evidential foundation if he wishes to rely on the defence of private defence. Once the state has proved that the accused injured or killed another person, or once the accused has admitted this, the accused attracts an evidential burden; that is, he must place evidence before the Court to explain and justify his conduct. This does not mean that accused acquires the onus of proof, but he cannot simply allege that he acted in private defence and leave it to the state to prove otherwise.

 13.5 The case of S v Manona[26], is an authority for finding that where it was not disputed by the accused that he had shot and killed the deceased but alleges that he had done so in self defence, a prima facie case of unlawfulness had been established against such accused, placing an evidential burden of rebuttal on the accused’ to show that he had killed in self-defence.  Lehohla J (as he then was) in the case of R v Tsumane[27] stated it as thus:

According to law (sic) the duty of the Crown where a right of private defence is raised, is to negative such evidence. It can only negative it if it comes from the defence side.

[14] THE EVIDENCE

14.1 The evidence of the crown through PW1 and to a limited extent PW2, is to the effect that, after he had accused the deceased of trying to kill him, a rumour accused said he had heard, the accused then walked a few paces from where deceased was sitting and he turned around and shot him. The evidence of these 2 witnesses corroborated by the accused was that the deceased was not armed. There was no evidence that the deceased went towards the direction of the accused. There is no evidence that at that point in time, the deceased did anything that could endanger the life of the accused.  What then possessed the accused to state that there was an imminent attack? in Director of Public Prosecutor v Mosae[28] Ramodibedi P stated in satisfying this requirement as follows:

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.

14.2 His evidence of self defence is based on an imagined attack. The law is clear, the attack must be imminent and in progress. There was none in this case. There being no attack except an imaginary one, the rest of the requirements are clearly not satisfied. Meaning I cannot even proceed to interrogate whether the attack was protecting a legal interest and whether it was progressive because it did not exist at all. Private defence is not concerned with attacks that exist only in the mind of the accused.

[15] CONCLUSION

15.1 I find and conclude that the crown has adduced evidence beyond reasonable doubt that there was no attack and therefore it has discharged its onus that the accused cannot rely on Self defence.

15.2 This concludes the myriad defences the accused has raised. I have resisted the temptation of analysing the danger posed by raised defences that conflict with each other in the legal requirements to show that in the end the accused leaves an impression that he is unreliable. One who pleads mental incapacity cannot shoot in self defence because that presupposes appreciating the danger he faces. 

15.3 The discussion of the defences in isolation was to allow the accused to exhaust all defences legally available to him. After my analysis I find that the crown has established the guilt of the accused beyond reasonable doubt. The crown witnesses have identified the accused as the shooter and the admitted postmortem shows that the injury which finally led to the death of the deceased is the wound caused by the shooting.

15.4 I also find that the accused had a motive to kill the deceased. When he took the stand, he narrated a history which indicated that he has a peculiar dislike of the deceased. Finding him a man who ascended to power through clandestine means. He alluded to the fact that he had bribed his father (accused’s father) in order to be appointed chief.

15.5 On the day in question, the deceased had done nothing to provoke the accused. On the contrary it was the accused who upon arrived kept eye-poking the deceased who resisted responding to him.  Much like the biblical reference of how Jesus did not respond the hurling of accusations against him. It is as if the mere existence of the deceased, with the knowledge that they breathed the same air, irritated the accused.

Nothing in the evidence before court justifies the killing. Whether, legal or moral.

[16] VERDICT

16.1 I therefore find the accused guilty as charged.

My assessors agree with me.

I invite counsel to address the court on the existence or otherwise of extenuating circumstances. Thereafter addresses on mitigating and aggravating factors will follow.

[17] EXTENUATING CIRCUMSTANCES

17.1 Relying on R v Letuka, Advocate Thamae who had taken over from Adv Makhera on behalf of the accused emphasised the fact that the accused believed in witchcraft should be viewed and accepted as a mitigating factor. He posited that this belief in witchcraft displayed itself through the utterances of the accused when he charged at the accused and accused him of bewitching him through witchdoctors. This statement on its own, he submitted, should convince the court that the accused attacked the deceased because of this belief.

17.2 He submitted that the accused lives in a rural environment where people believe that a visit to a witchdoctor can have adverse and dire consequences on one’s life and may result even in death. It is for this reason that the court should find the existence of extenuating circumstances in terms of Section 290 of the Criminal Procedure and Evidence Act.

17.3 On the other hand, Advocate Mofilikoane vehemently disagreed with this supposition and argued that, in terms of Letuka, the belief in witchcraft should go to the core of the behaviour of an accused person during the commission of a crime. She argued that whilst it could be true and correct that the accused believed in witchcraft, this is not the core reason he committed the crime. That he was not prompted by this belief in the commission of the crime. His motive had more to do with the hate he harbored against the deceased than with his belief in witchcraft.

17.4 On the strength of Letuka V Rex[29] in the exercise of the discretion that I have in these matters, I find that the accused lived in Rural Mafeteng and the belief in witchcraft in the society in which he lives, witchcraft can cause much anxiety to one who has heard that another is visiting a witch-doctor and he is a subject matter or target of the meeting. Such a belief can indeed induce one to take drastic measures to eliminate the intended witchcraft before he becomes a victim.

17.5 Relying also on the case of S. v Letsolo[30] I find that extenuating circumstances do exist and as such the provisions of section 297(3) become relevant. The same reads;

Section 297 (3) The High Court may impose any sentence other than death upon any person convicted before or by it of murder if it is of the opinion that there are extenuating circumstances."

17.6 On mitigating factors, I find that the accused is a first offender, he is a father and he handed himself to the police and has been cooperative. The accused through his counsel also offered to raise the head of the deceased.

17.7 Addressing the court on aggravating factors, the prosecution submitted that the sanctity of life should be viewed as sacrosanct. That the court should jealously guard against those who treat it in a way that does not reflect this. Advocate Mofilikoane argued that the accused showed no regard to the sachrosancy of life. His self-righteous attitude, viewing the deceased as one not worthy to walk the same ground as him due to him being prone to corruption, drove the accused to his murderous act. Had he respected the sanctity of life, he would have engaged other means of dealing with the delinquency of the deceased if it existed at all. The acts of the accused, had given rise to orphans and a widow. In comparison to the accused, the family of the deceased would never have the joy and benefit of being with their parent.

17.8 Advocate Mofilikoane hammered on the position of the accused in society. She submitted that the accused is a principal chief who should ordinarily act in a manner befitting his office. A holder of such a prestigious office should not be associated with unprovoked murderous acts. This she said, taints the dignity of such an august office. She urged the court to therefore intervene by showing its displeasure through the sentence it will pass against the accused.

17.9 She also emphasised on the issue of deterrence in that, other principal chiefs, should know that the rule of law operates in Lesotho. That the equality of the law cannot exempt them from harsh sentences because of their office. She therefore submitted that the court should pass a sentence that would serve as a deterrent.

[18] SENTENCE

18.1 I now turn into the laborious act of incorporating the evidence before me with the mitigating and aggravating circumstances in order to find the appropriate sentence for the accused. A sentencing judge is also guided by the purposes of sentencing which are deterrence, rehabilitation, retribution, prevention and reformation.[31]

In doing so. I will align myself with the now notorious principles enunciated in the case of R v Zinn[32] which provided that

“Punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to particular circumstances.”

18.2 As Ramodibedi P stated in the case of R v Thejane[33] each of the provisions stated in the Zinn triad should be given their individual attention. Hereunder I undertake the task:

1. 1. 1. The crime:

18.3 The accused is charged with a serious crime, that is murder. It is a schedule III offence under the Criminal Procedure and evidence Act, 1981. The seriousness of murder is the cruelty not of the act but the consequences. It is cruel to the victim and those he left behind a widow and orphans. The aftermath is that it leaves loved ones with a physical and an emotional void. Earlier in the judgement I alluded to the fact that I detected anger and bitterness in the widow’s description of the accused as “my husbands’ murderer.” This evidences the pain that the passing of her husband in the hands of the accused has left. What trumps all in relation to murder is of course the sanctity of life.

18.4 I align myself with the sentiments expressed by Mokhesi J in R v Moabi[34] where he stated:

However, the fact that I said that the accused is a good candidate for reformation, by no means diminishes the seriousness of the offence with which he is charged.  This court believes in the sanctity of life and any unwarranted deprivation of life should receive a stern disapproval in the form of commensurate punishment.

18.5 Chaka-Makhooane J in R v Mbobo[35] alluded to the same.

1. 1. 2. The criminal

The accused is not an ordinary man in Lesotho. He is a principal chief. Basotho, as a people, view the office of chieftainship in high regard. A chief is in Basotho society the head of administration, he is the law giver, the mediator, an office of dispute resolution, a place where culture is maintained. In short, a chief is viewed as a custodian of what it is to be a Mosotho.

18.6 Having gathered some of the views of society on how Basotho view the institution of chieftainship, the Kapa[36] states that the populace view chiefs as thus;

“Chiefs perform a number of important functions, including peace-keeping and conflict resolution, in ways that no state agency has to date been able to replicate. In the past the chiefs carried out judicial functions in the local courts”

This is echoed in Quinlan’s in his PhD thesis [37]  where he states that as a society Basotho see,

“…chieftainship is the nexus around which Basotho articulate their national identity and the economic circumstances particular to Lesotho”.

18.7 From these views, the court cannot ignore the stature and office which the accused holds. He became a chief not by training but by birth. Meaning that even in his formative years he should have been trained for the office he was to hold.

18.8 In finding him as an accessory after the fact and sentencing Chief Majara in the case of R v Nkau Majara[38], the court referred to his statutory duties and the expectation that his office holds. That is, whilst chiefs enjoy the same equality under the law as those that they reign over, the responsibility placed on them by the law cannot be ignored when their moral blameworthiness is a factor.

18.9 I however, also cannot ignore the person I saw throughout the trial. He displayed the demeanor of one who held outmost respect for the courts. Arriving on time. Oft-times the court sat earlier than the normal hour and he would diligently report himself to court on time. Although he was not openly remorseful, probably retaining the stature of his office, he was not arrogant nor obnoxious. He respected the court. He demonstrated that given the opportunity, he is willing to make good that which the family lost through the raising of the head (ho tsosa hlooho ea mofu) of the loss they have suffered. This was revealed by his counsel during addresses on mitigation. In our society, this is the highest form and display of remorse. It plays the role of compensation and reparation of emotional loss. It is a form of restorative justice in the Basotho culture and custom. It plays a vital role in healing wounds and restoring relations. 

18.10 I also note that his hatred of the deceased was driven by his sense of justice. The need to do things right. Hatred of corrupt deeds and those who benefit from them. The accused was described by PW1 as a man who lived well with those around him.

1. 1. 3. Interest of society

Sociologists surmise that one way of controlling and reducing crime is to punish offenders.[39] They argue that, given that punishment typically involves restricting people’s freedom and sometimes inflicting harm on people, it requires some justification as a strategy for crime control. In Lesotho when a Principal Chief commits a crime, the societal interest should be that his office should not exonerate him from being punished like a commoner. The administration of law, the rule of law, the independence of the judiciary are uppermost in the mind of society in such a situation.

18.11 The courts should however, always guard against being populists or populism. It is not for the court to feed into public frenzy in as much as it is the duty of the court to be seen by society as a haven where their petitions and grievances are given due consideration.

18.12 In considering the interest of society, the court should amongst others, consider the seriousness of the crime and its effect on society. In the case of S v Moswatupa,[40] the South African Supreme Court of Appeal underlined the seriousness of the offence of housebreaking and stated that:

Housebreaking is an extremely prevalent offence, and it is in the general public interest that sentences imposed in these matters should act as a deterrent to others. The message needs to go out to the community that people who commit these types of offences will be dealt with severely by the courts.

18.13 Similarly, this court shuns upon the series of murders committed with impunity in the country and should show its displeasure. The sentence imposed should talk to general deterrence. . I do so cautiously, guided by the utterances of Schreiner JA in R v Karg[41] where he concluded;

"It is not wrong, that the natural indignation of interested persons and the community at large should receive recognition in the sentences that the courts impose.... Naturally righteous anger should not becloud judgment."

18.14 Having made the analysis dictated by the law in this regard, I sentence the accused as follows:

1. 1. 1. 1. 27 years imprisonment. This will include the days he has spent in prison since the revocation of his bail on conviction.
         2. In line with the jurisprudence that advocates for restorative justice, incorporating as a court, the Basotho customary principles of restorative justice, I order the accused to “tsosa hlooho” (raise the head of the deceased) by compensating the family with 4 cattle or the market value thereof.
         3. The Gun used in the commission of the crime should be confiscated by the state. 

My assessors agree with me.

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M. G. HLAELE

JUDGE

Crown:     Advocate Mofilikoane

Defence:   Advocate Makhera and Adv Thamae.