2.      Aliu Oladimeji Shodunke, Sodiq Abiodun Oladipupo, Mubarak Olawale Alabi, Ayobami Habeeb Akindele. “Establishing the nexus among mob justice, human rights violations and the state: Evidence from Nigeria.”

3.       Yeboah-Assiamah, Emmanuel & Agyekum Kyeremeh, Thomas. (2014). “A Critical Assessment of Public Administration and Civil Disobedience in Developing African Democracies: An Institutional Analysis of Mob Justice in Ghana.”

 

4.       Marrien Sibanda. 2014. “Contextualising the Right to Life and the Phenomenon of Mob Justice in South Africa.” LLM Dissertation North-West University

 

JUDGMENT

 

HLAELE J

[1] INTRODUCTION

The accused charged as follows:

 

1.1 The evidence in this case points to mob justice. The evidence suggests that on or about the 7^th August 2008, an angry crowd gathered. A man who was believed to be a habitual burglar of the business premises of the accused was sentenced to death by the court of mob justice. Hereunder in this judgement I narrate the facts as gathered from the evidence. Thereafter I will engage in the analysis of the law and ultimately come to a finding on the guilt or otherwise of the accused. 

[2] ADMISSIONS.

The following were recorded as admissions:

2.1 The admitted report by No. 8821 PC Ntee was read into record as well as a scene of crime report by No. 100409 PC Lieta.

The post-mortem report was also admitted.

[3] CROWN’S CASE

3.1 In discharging the burden imposed on it by law, the crown led evidence of the following witnesses; 

3.2 PW1 was ‘Matebatso Nts’asa. She is the deceased’s wife. Her evidence was that on that fateful day, her husband told her that he was going to the accused’s home as he had been told that accused was accusing him of stealing from his shop. That was the last time she saw him alive. She only heard about his death the following morning.

3.3 PW2 was Thabiso Kutumela who was working at LDF around the time of the events of this case. He testified that he grew up together with the accused in the same village. His testimony was that in the evening of that day, on his way to his brother’s house, as he passed by the accused’s shop, he realized that there was a commotion of sorts. He surmised that something was taking place there, as a large crowd had gathered. Curiosity must have gotten the better of him because he testified that he went to check what was actually happening. Upon arrival at the shop, he found the accused’s wife sitting on top of the deceased who was still alive at the time. The accused’s father Simon Kelane explained to him that they had arrested the deceased because he had stolen from them.

3.4 This witness also heard one person from the crowd uttering these words; ‘they are going to get petrol to burn him’. Thereafter he saw the accused coming towards the crowd holding a plastic container which had a red substance inside. He assumed, or possibly concluded that the red substance was petrol as someone in the crowd had alluded to petrol being brought. He immediately approached the accused and told him that what was happening was not acceptable, and that as they had already tied the deceased, they should just hand him over to the police. The accused however, did not want to take the advice but told the witness that the deceased had caused them damage a number of times.

3.5 The testimony continued that the deceased was then dragged from the shop to another place. Upon observing deceased being dragged like that, this witness went to one police officer’s house by the name Thabiso Sefalane. The intention was to alert him about what was happening.

3.6 He and Sefalane then followed the crowd. On their way to where the deceased was taken, they met the accused’s father. Sefalane then stood there with the accused’s father talking about what was happening there. The witness left Sefalane and the accused’s father there and went further towards where the deceased was. As he approached that place, he saw large flames erupting. That was when he noticed that the deceased was burning. This was the summary of the evidence in chief.

3.7 On cross-examination Advocate Makara who was representing the accused put to this witness that what was inside the transparent plastic container was actually paint and not petrol.

3.8 This line of cross examination put the witness in a conundrum as he initially seemed to want the witness to accept that indeed the contents of the bottle were paint and not petrol.

3.9 The witness however insisted in his belief that what he saw was petrol. He dug his heels in the mud and insisted that what he saw was a reddish substance. Asked whether he can confirm the version of the accused that it was not petrol, he refused to be drawn into confirming the version of the accused that the contents were indeed paint. He coupled his belief that the content was petrol from what he had heard from someone who was in the crowd who had uttered that they were waiting for petrol.

3.10 Advocate Makara also put to this witness that the person who poured and ignited the deceased was Simon Kelane, the accused’s father and not the accused. He put it as thus;

3.11 DC: He says upon arrival, he found his father pouring petrol on the deceased

3.12 PW2: I cannot confirm that.

3.13 More will be said later about this version of the accused that was put to crown witnesses.

3.14 The witness however remained unshaken that it could not have been Simon who ignited the deceased because when he saw the flames erupting, he had just left Simon talking with Sefalane a little bit further away from the crowd.

3.15 The record reflects the following;

3.16 DC: you said the father of the deceased was far from the scene when the deceased was burned?

3.17 PW2: He was far, but not very far. He was 18 paces away from the scene of the crime. That is where I left him with Police Officer Sefalane.

 

3.18 PW3 was Ariele Makosholo. His evidence was that on that fateful day he had gone to buy something at the accused’s shop. He met one Simon, the accused’s father at the shop. Simon asked him to tie the deceased with a rope to which he complied. He tied both his feet and hands. The wife of the accused and the accused’s brother then started beating the deceased. The witness also saw the accused’s wife making a phone call telling the person she was calling to bring petrol. He assumed the person she was calling was the accused.  In the evening on his way home from work, the witness heard that the deceased had been burned.

3.19 On cross-examination, Advocate Makara put to this witness that he could not have known the person who accused’s wife was talking to on the phone telling them to bring petrol since the phone was not even on speaker. The witness did not deny this.

3.20 PW4 was NO. 9184 Inspector Thabiso Sefalane. His testimony was that on the day of the events of this case he received a phone call from PW2 around the hours of 18:00 and 19:00 PM.

3.21 PW2 asked him to go and help him as the accused wanted to kill the deceased. He met PW2 on the way and they went together to where the crowd was. When they were about 30 paces away from the crowd, they met Simon Kelane (accused’s father) and the witness asked him what was going on.

3.22 Simon explained that the deceased had been causing his family damage by stealing from them. That even if they could take him to the police he would still return and continue stealing in the village. While Simon was still explaining this to him, they saw the flames erupting in front of them and they became shocked. When the flames erupted, the crowd dispersed and the witness noticed the accused among the crowd.

3.34 On cross examination, Adv Makara showed this witness the police statement which was taken from him days or weeks post the events of that day. His statement stated that he met Simon Kelane after the deceased was set ablaze, and it stated further that Simon was among the crowd. To this the witness responded that he was aware that was what was written in the statement. However, he remembered very well that when the flames erupted, he was with Simon Kelane having discussions.

3.35 In dealing with such contradiction, Mokhesi J in R v Lesenya[1] perused that, these contradictions do not per se lead to rejection of a witness evidence. I am inclined to adapt this approach and accept that these contradictions are cured by the PW 3 corroborate that when the fire erupted, this witness was with Simon.

3.36 PW5 was Thuso Tsoake; whose evidence was that on that day, he was on his way home from work. He went via the accused’s shop whereby he found his friends. He stayed there smoking with them. The deceased arrived and he told them that it had been said by the owners of the shop that he had stolen and he had gone there to inquire about why they were saying that about him. To this end, this evidence corroborates that of PW1.

3.37 Simon then came and told the deceased that they had been looking for him. He (Simon) then instructed the witness and his friends to tie the deceased, however, they were unable to tie him. PW3 then came and tied the deceased. After being tied, Simon, accused’s wife and brother and one lady who the witness did not know then started assaulting the deceased.

3.38 Later on, the accused arrived holding petrol in a transparent plastic container. He also started beating the accused and accusing him of having stolen from him.

3.39. Later the accused was carried from the business premises to what he described as River side. He was later carried to the river side by the accused and one lady who the witness did not know. When the deceased, the accused and the crowd got near the river, the accused poured the petrol over the deceased. The deceased was still tied on both his feet and hands when accused poured petrol over him.

3.40 According to the testimony of this witness one Phakiso Maselela who is the witness’s brother in law arrived at the scene. The accused was looking for a person who would set the deceased on fire. Phakiso Masilela volunteered to do it, however, the witness stopped him by standing in front of him and telling him that he had just arrived, so he did not have to involve himself in something that he did not even have full facts of. The accused himself then set the deceased on fire using a match stick. At the time when the accused set the deceased on fire, accused was about a step away from the deceased while the crowd was a bit far away from them.

3.41 This witness’s cross-examination centered around there being bad blood between him and the accused. That because of the soiled relations this witness had come to court to falsely implicate the accused in the murder of the deceased. The witness vehemently denied having had any bad relations with accused. Despite Advocate Makara’s insistence on the bad blood theory, this witness remained resolute that although they could have been altercations between his family and the accused’s family, these were minor and on and off. There was no permanent animosity. This was later confirmed by the accused himself that his relationship with this witness was not in a state where it could motivate him to bear false witness against him, breaking the Biblical 9^th commandment.  

3.42 Once again Advocate Makara on behalf of the accused put to this witness the accused’s version that it was Simon Kelane who had poured petrol as well as ignited the deceased, setting him on fire. The witness denied this. I must state that the cross examination however touched on the allegation that the torcher was Phakiso. The significance of this omission will be realized late herein.

 

[3] DEFENCE CASE

3.1 The Defence opened its case by applying for the discharge of the accused in terms of section 175(3) of the CP&E. The application was dismissed.  As a result, the defence called witnesses to testify on behalf of the accused. The only witness who took a witness stand in accused’s defence was the accused himself.

[4] THE TESTIMONY OF THE ACCUSED

4.1 He testified that on that day, he returned home to his business premises due to the phone call that he had received from his wife. She told him to return home as the deceased was at the shop. He added quickly that his wife never told him to bring petrol. He therefore did not arrive holding petrol contrary to what the crown witnesses had testified.

4.2 He testified that what he arrived carrying was a container which had a red paint inside. He was unsure whether on his arrival at the shop he took the petrol to his house or not. There was a large crowd as he entered his shop premises. There were people among the crowd who were beating the deceased and he also participated in the beating.

4.3 His evidence was further that his father was quite furious due to the damage that the deceased had caused to their family by stealing from them time and again. During evidence in chief, he testified that his father Simon Kelane could possibly be the one who poured the petrol over the deceased. He was not certain but he said he thought that it possibly could be his father.  He also testified during evidence in chief that he tried to stop his father from pouring the petrol, however, it was too late as his father had already poured the petrol over the deceased. More will be said about this testimony hereunder.

4.4 He further testified, when asked who ignited the fire that, the person who ignited the deceased with a match stick was Phakiso Masilela.

4.5 It was also during his evidence in chief that the accused denied having had any bad relations with PW5 contrary to what his lawyer Advocate Makara had intimated in cross examining PW5.

4.6 The cross examination centered around the witness being the bearer of the petrol. The witness insisted that he carried paint to the scene and not petrol.  It was also during cross examination that the accused confirmed that indeed he never had any bad relations with PW5 which could lead him to implicate him in the murder of the deceased.

4.7 He also admitted that the version that it was PW5’s brother in law who had ignited the fire had not been put to any witness.

4.8 The defence closed its case after the evidence of the accused was led.

4.9 I now enter into the laborious act of analysing the evidence, discussing the applicable law and finally coming to the conclusion of the guilt or otherwise of the accused based on the said analysis.

 

[5] THE UNLAWFUL ACT

5.1 The case of the crown was that the unlawful act which attracts the criminal liability of the accused rests on the act of pouring a flammable petrol and thereafter torching the deceased to death. To this end they called the witnesses as articulated above. Above, I have given the sum total of the witness’s testimony. What follows is the scrutiny of the said evidence. In scrutinizing the same, I will extract how each piece of evidence talks to or fails to talk to the issue of the accused’s liability. In the end, the court will be guided by the testimony of the witnesses coupled with legal authorities to make a legal finding.

5.2 The crucial evidence of:

PW1: That the deceased voluntarily handed himself over to the accused’s family. Little did they both know that the voluntary handing over would lead to his death.

5.3 PW2:

1. The deceased was arrested by accused’s family. He was tied

and the wife was sitting on him. This was not denied.

2. His suggestion that the deceased be taken to the police was

rebuffed.

3. There was a crowd that gathered supposedly to administer

mob justice on the deceased. I say this because the suggestion of taking him to the police was rejected.

4. A person in the crowd said they were awaiting petrol.
5. The accused was in a short space of time seen holding a 5-

litre container in a transparent plastic bottle containing reddish liquid which upon closer inspection was petrol.

6. The accused resisted this witness’s advice to desist from

any attempt of self-help.

7. The accused was amongst the crowd or mob of people

        dragging the accused to the place where he was set alight.

5.4 PW3:

1. The deceased was fastened in cuff-like manner and was

being assaulted by the family of the accused, notably his wife, brother and father. It was alleged he had stolen from their shop. it was confirmed that they wanted to resort to self-help rather than seek help from police

2. That the wife called some person and asked for them to

bring petrol.

5.5 PW4:

1. That the accused was part of the mob that set the deceased

on fire.

2. He was with deceased father when the fire was set ablaze.

5.6 PW5:

1. He saw the accused with a 5litre bottle with petrol
2. He saw accused pour petrol on the deceased
3. Under cross examination it transpired that he was not

Certain that it was the accused who had lit the fire.

5.7 To this evidence by the crown witnesses, the version of the accused that was constantly put to them was that the accused was carrying paint not petrol in the 5litre container.

5.8 Further that it was his father that had poured petrol on the deceased and set him on fire.

5.7 PW1:

1. he was carrying the alleged bottle but it had paint not

    petrol

2. he “suspects” his father poured petrol on the deceased.
3. It might have been Phakiso Tau who set the deceased

alight.

[6] ANALYSIS OF THE EVIDENCE

6.1 As this is a criminal trial the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence charged. That burden never shifts to the accused. There is no obligation on the accused to prove any fact or issue that is in dispute. It is not for the accused to prove his/her innocence but for the Crown to prove his/her guilt.

6.2 Lord MacDermont in Tumahole Bereng & Others v The King 1926-53 HCTLR 123 at page 138D[2] put the legal position as follows:

“The giving of false evidence - may bear against the accused and assist in his conviction if there is other material sufficient to sustain a verdict against him. But if the other material is insufficient either in its quality or extent it cannot be used as a make-weight. To hold otherwise would be to undermine the presumption of innocence..."

6.3 In order for the Crown to be found to have proved its case beyond a reasonable doubt, we have to find sufficient credible evidence to make this possible. Meaning that rejecting the evidence of the accused as false does not put an end to the problems of the Crown.

6.4 If the accused gives a story that is reasonably possibly true, he must be acquitted. In R. v. Difford[3], 1937 A.D. 370 at 3 73 Greenberg, J. described the criminal standard thus:

“no onus rests on the accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal." Similarly in R. v. M 1946[4] A.D. 1023 a t p. 1027 Davis, A.J.A. s”.

 

 

[7] HAS THE CRWON MADE OUT ITS CASE

7.1 In criminal proceedings, the State bears the onus to prove the accused’s guilt beyond a reasonable doubt. The accused’s version cannot be rejected only on the basis that it is improbable, but only once the trial court has found, on credible evidence, that the explanation is false beyond a reasonable doubt. 1 The corollary is that, if the accused’s version is reasonably possibly true, the accused is entitled to an acquittal. Equally trite is that the appellant’s conviction can only be sustained if, after consideration of all the evidence, his version of events is found to be false.

7.2 This basic yet important principle was summed up with a citation of crucial cases in the case of Lehloka v s^[5] where the court said

“The basic principles of criminal law and the law of evidence that applies in this matter are trite. The first principle is that in criminal proceedings, the state bears the onus to prove the accused’s guilt beyond reasonable doubt: S v Mbuli 2003 (1) SACR 97 (SCA) at 110D-F; S v Jackson 1998 (1) SACR 470 (SCA) and S v Schackell 2001 (4) SACR 279 (SCA). No onus rests on the accused to prove his or her innocence: S v Combrinck 2012 (1) SACR 93 (SCA) at para 15.  The accused’s version cannot be rejected only on the basis that it is improbable, but only once the trial court has found, on credible evidence, that the explanation is false beyond a reasonable doubt: S v V 2000 (1) SACR 453 (SCA) at 455B. The corollary is that, if the accused’s version is reasonably possibly true, the accused is entitled to an acquittal. Equally trite is that the appellant’s conviction can only be sustained if, after consideration of all the evidence, his version of events is found to be false: S v Sithole and Others 1999 (1) SACR 585 at 590”.

 

7.3 On home ground guided by this dictum in the case of Moshephi and others v R[6] where the court said:

“…whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of body evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against tendency to focus too intently upon separate and individual part of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the work for the trees”.

7.4 The crown presented 5 witnesses whose totality of evidence points to the accused being the cause of the deceased’s death. The analysis and summary have been alluded to earlier in the judgement.

7.5 The witnesses were unmoved and unshaken regarding the difference between paint and petrol. It would be asking for a standard other than beyond reasonable doubt to ask the crown witnesses to confirm that the container contained petrol. Petrol is indeed obvious to the naked eye without smell and any other expertise. The density of petrol as opposed to that of paint also does not require expertise. The container itself talks to the issue of the contents. It is unusual and not a normal cause of events for paint to be held in a bottle plastic transparent container. I therefore reject and find it not reasonably probably true that what the accused brought to the scene was paint. This is coupled with the evidence that in a telephonic conversation the wife of the deceased requested whomsoever she was talking to bring petrol and behold the only time petrol surfaced was after the accused came holding a container whose contents resembled by all looks of things, petrol. I therefore find and conclude that the crown proved its case in as far as the contents of the petrol which was poured on the deceased was brought to the scene by the accused.

7.6 Put in the spotlight, the turning point is, who brought the petrol which all the evidence points as the weapon which caused the death of the deceased.

7.7 The sum total of the legal duty of the crown tolas that the accused has no duty to prove his innocence. A court is not entitled to convict unless it is satisfied that the explanation of accused is not only improbable but is beyond reasonable doubt false.

7.8 In the context of the present case, the inquiry which the court must ruminate upon at this stage therefore is the whereabouts of the accused’s father at the time when the deceased was set on fire. The need for this interrogation emanates from the fact that the theory or version that was put to all the crown witnesses during cross examination by Advocate Makara was that it was the accused’s father that torched the deceased.

7.9 To put it in a clearer context, he referred this line of cross examination, (i.e., that it was his father that torched the deceased), as “instructions from my client.” This theory that it was his father and not the accused who torched the deceased, was put before all crown witnesses.

7.10 It must be stated that PW4 although shaken, did not totally shift from the position that the father was engaged in a conversation with him at the time of the ignition. He put both him and the accused’s father considerable paces away from the crime scene. PW4 and 5 refused categorically to admit that it was the accused’s father who set the deceased on fire.

7.11 There seemed to be a turn of events or version when the accused took the stand. What had erstwhile been described as “my client’s instructions” during cross examination deteriorated into a whispered uncertainty by the accused as to who had set the deceased alight. For clarity I record verbatim the evidence in chief of the accused led by his counsel Advocate Makara. 

7.12 DC: Explain to the court how the deceased ended up dying if you may know.

Accused: I recall that because my father was the one who was angry my suspicion is that, even this container, I do not know where it came from, it could have come from him. But since there were a lot of people, it could have come from anyone, I really have no idea.

DC: So, are you saying you did not see who poured petrol?

Accused: I do not know where the petrol came from but what I saw is that petrol was poured on the deceased.

DC: Who poured the petrol?

Accused:  From what I saw, I think it was my father because I tried to prevent the act but I think my efforts came a little too late.

DC: how did the deceased end up burning?

Accused: petrol was poured on him.

DC: So, you are saying immediately when petrol was poured on him, he started to burn?

Accused: the ignition you are talking about, I think it came from Phakiso. Phakiso is Tsoake’s brother- in -law.

DC: I just want to be clear, you said you tried stopping your father from pouring.

Accused: yes, I tried to stop him but it was too late.

 

7.11 It will readily be seen that when the accused did take the stand, this version changed.  He was no longer confident and saying with certainty whether it was his father or not. This despite the prompting of his counsel to state succinctly and categorically that it was his father as his version had been put to crown witnesses.

7.12 I am of the view that the change of tone and the reluctance of the accused to state how the fire started contrary to what had been put to crown witnesses speaks to the issue of the concept of the version of an accused not being probably reasonably true.  That’s the legal standard that is required of an accused person.

7.13 What this entails is best described in S v Chabalala[7] where the Supreme Court of Appeal amplified as follows, the ‘holistic’ approach required by a trial court in examining the evidence on the question of the guilt or innocence of an accused:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weights so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt”

 

7.14 In light of this, the version of the accused smacks of a fabrication. The contrast between the certainty of his father being the ignitor (as was put to crown witnesses) and the obvious reluctance of pin-pointing him when he took the stand speaks to this fabrication. The failure of his counsel to confirm when PW5 was in the witness box that indeed it was his brother- in law who ignited the fire, also speaks to this fabrication. In-fact this opportunity to cross examine PW5 had presented itself because the witness (PW5) was the one who brought up the name of Phakiso, his brother-in-law. He was not cross-examined on this issue to state that indeed his brother-in-law ignited the fire. I therefore conclude that the inconsistencies, the general demeanor of the accused when in the witness box, lowering his voice in accordance with the difficulty of the question, his failure to state categorically what he saw even when prompted to do so, all speak to his version not being reasonably probably true.

7.15 The accused clearly had motive. Although this does not talk to the elements of the crime, motive is an important aspect of the total behaviour of the accused in relation to the commission of the crime. The family of the accused had suffered economical loss in the hands of the deceased. The deceased had openly boasted to them that the justice system does not favour them. With this collective anger, although the accused unsuccessfully downplayed it, the accused had every reason to eliminate and eradicate the deceased from the living.

7.16 His point of entry according to corroborated evidence, is that he joined those who were assaulting the deceased. He thereafter joined them when they went to the scene of the crime. The controversy of the participation in the actus reas is settled by PW5 the eye witness. His is the culmination of the progression of evidence which the Crown synchronized well from the first to the last witness. The actus reas constituted by the pouring of the petrol and the ignition of the fire. Setting the deceased alight and leading him to death according to the post mortem report.

7.17 The mental element of the crime constituted dolus directus” in that the accused foresaw the possibility of causing death but was reckless of such result.[8] I do not think that a business man who engages in the sale of goods is unaware of the chemical properties of petrol. The accused tried to run away from the act of ignition by stating that he could not have had matches because he does not smoke.

 

[8] WHO IGNITED THE FIRE?

8.1 Pouring petrol on the accused did not on tis own cause his death. It was being set alight that concluded that combustion. Minus setting him alight, the deceased could possibly not have sustained the burns that led to his death as shown in the post mortem. Once again travel to the evidence as outlined in the testimony of the witness.

8.2 None of the witnesses that gave evidence gave direct evidence regarding the one who enkindled the fire. To this end, where there is no direct evidence, circumstantial evidence then becomes the tool to unravel the mystery.

8.3 In assessing the evidence and determining the issue of the ignition the question is, was it the accused or is there evidence that supports that it could have been another person?

8.4 In the case of S v Reddy and others[9] 1996 (2) SACR 1 (A) 8C–E, the court said:

“In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the opt-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn”.

8.5 According to the evidence before court, there are 3 possible candidates who are igniters, the father, Phakiso, and the accused. The test in R v Blom[10] is that (1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn; (2) The proved facts should be such that they exclude every (other) reasonable inference, save from the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.

8.6 Against these requirements I will test the 3 and the process play an illumination game. Below is how the court dealt with the elimination process.

8.7 The accused’s father: Is the inference drawn that it could be the father of accused who ignited the match that led to the deceased’s death consistent with the proved facts? The proved facts according to the totality of the evidence point towards the father not being at the scene of the crime at the time the fire started. PW2 and PW4 place him a few paces away from the fire. Specifically, when the flames flared. As such the proved facts have failed in this regard to include the father, thus there are other reasonable inferences to be drawn, other than the father being the instigator.

9.7 Phakiso: Phakiso was placed at the ignition scene by PW5 who said that Phakiso was his brother-in-Law. The evidence points towards him attempting to light the fire after the deceased was doused with petrol. PW5 testified that he immediately stopped this intended action by advising Phakiso not to involve himself in matters that do not involve him. He actually stood in front of him, to cause this prevention. According to PW5, Phakiso accepted this counsel and desisted from torching the deceased. Cross examination did not discredit this testimony. Therefore, it remains uncontroverted. For the accused to put Phakiso at the scene without having afforded PW5 the opportunity to cross examine on it, violates the rules of evidential burden, as such the weight given to the participation of Phakiso as narrated by the accused is vitiated by that of PW5. More so because even accused when asked about Phakiso when he testified was uncertain. In terms of the totality of the evidence placed on the test and scale outlined in Blom, Phakiso is eliminated.

9.8 The Accused: the accused is seen at the scene of the crime. PW5 places him one pace away from the deceased at the time the fire started. PW5 did speak of being afraid of the accused.  He alluded to this during cross examination. But both him and the accused confirmed that there is no bad blood that could spill into him falsely testifying against the accused. On his testimony about the accused being the one who had the matches, the inference drawn points to the accused and from the analysis and elimination of the other inferences analysed, the second test in Blom points, circumstantially towards the accused. PW4 also put the accused at the scene. He testified that when the flames flared, he saw the accused amongst the people close to the deceased.

 

[9] CONCLUSION.

9.1 I therefore conclude that (1) The inference sought to be drawn is consistent with all the proved facts that the accused was at the scene of the crime. He was close enough to the deceased to have caused the fire. Therefore, such inference can be drawn; (2) The proved facts should be such that they exclude every (other) reasonable inference, save from the one sought to be drawn. In this instance the proved facts exclude the possibility of the father and Phakiso and any other person (none was mentioned). Since the facts do exclude other reasonable inferences, then there is no reasonable doubt whether the inference sought to be drawn is correct, which inference is that the accused caused the torching of the deceased.

9.2 It is my conclusion that the circumstantial evidence points towards the inference that it was the accused who caused the death of the deceased by burning him whilst he was tied and defenseless. The anger that the accused had towards the deceased, the financial losses he had suffered in the hands of the deceased gave him (in his mind) a justification to do so. The fear that the criminal justice system had failed him and would continue to fail him, all talk to this act.

9.3 From the related narration and the analysis of the totality of the evidence, I therefore find that the discharged the onus placed on it.

[10] GUILT OF THE ACCUSED                      

10.1 I therefore find the accused guilty as charged, and my assessors agree with me. Having found the accused guilty, counsel was asked to address the court on extenuating circumstances.

[11] EXTENUATING CIRCUMSTANCES

11.1 The legal representatives herein were invited to address the court on extenuating circumstances. Advocate Makara on behalf of the accused, directed the court to the celebrated case of Letuka v R[11] to talk to the issue stipulated in section 296(1) of the Criminal Procedure and Evidence Act 1981which reads: -

“Where a court on convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than the death sentence”.

11.2 In line with the findings of the court in Letuka, Advocate Makara relied on the element of emotional conflict[12] to explain the moral blameworthiness of the accused at the time of the commission of the crime. To this extend, he argued that the accused should be seen as one who had repeatedly suffered financially in the hands of the deceased. He had relied on the police and the criminal justice system to assist him but in vain. The turmoil Advocate Makara was therefore referring to is that of a business main who felt that releasing the deceased to the system does not yield the required results.  Thus, when he arrived at the scene, already armed with the information from the telephone call from his wife that the deceased was under citizen arrest, bringing petrol to administer justice, his emotions got the better of him. Blinded by helplessness from a failing system, he reacted as he did. He meted justice in the only way he felt he was eradicating permanently, a menace from his economic hub and society. He and his family, fueled by a sense of self-righteous justice, engaged in self- help.

11.3 Advocate Makara also relied on the element of impulsiveness. That in a court of mob justice, with raised emotions and a sense of doing what needs to be done, the fever high pitch emotion of the mob drives a man to act on impulse and irrationally.

11.4 To this end, advocate Makara submitted that there are extenuating circumstances which render the death sentence not the applicable sentence in this case.

11.5 In turn, advocate Pone on behalf of the crown relied on the authority in the case of S v Letsolo[13] to confirm that indeed there existed extenuating circumstances in this instance. He cited the frustration that the accused and his family had suffered in the hands of the deceased. He said this talks to the issue of lessening the moral blameworthiness of the accused in relation to the murder of the deceased.

[13] FINDING ON EXTENUATING CIRCUMSTSNCES

13.1 I therefore find that there are extenuating circumstances in this regard. This however does not exonerate the accused from the entire sentence. It just directs reduce the sentence in light with his moral blameworthiness. That the court should pass the death sentence. It is for this reason that the court invited counsel to address it on mitigating and aggravating factors to the sentence.

[14] MITIGATING FACTORS

14.1 Accused’s counsel cited as mitigating factors the following:

1. 1. 1. That the accused is a first offender and has no previous convictions;
      2. That ordinarily, and in view of the total evidence before court, there is nothing that suggests that the accused is not a law-abiding citizen.
      3. That the accused contributes to the economy in that his legitimate businesses employ 12 people. It would be a travesty of justice if he is incarcerated for a long time and people lose their jobs in the current economy. That this might have a negative trickling effect.
      4. That he is a father of 5 children, the eldest of whom is in tertiary school.
      5. He takes care of his extended family.
      6. That the factors outlined make the accused a perfect candidate for rehabilitation as opposed to retribution.

[14] AGGRAVATING FACTORS

14.1 Advocate Pone for the crown submitted that the manner in which the deceased met his fate under the hands of the accused speaks volumes about aggravating factors. He submitted that the deceased laid helpless, tied and defenseless when the accused doused petrol on him and set him on fire. No amount of provocation can excuse such inhumane behaviour. The agony and pain that the deceased suffered under the self-righteous hand of the accused violates the sanctity of life. It is for this reason, he argued, that the court should sentence the accused in line with this inhuman behaviour of the accused.

14.2 He submitted also that the deceased was a father of 2 children at the time of his death. The accused had caused for these children to be orphans in the sense that they now remain fatherless.

15.3 Advocate Pone also emphasised that the criminal justice system should never be sacrificed at the alter of vigilantism, mob justice and any form of citizen’s self -help.

 

 

 

[15] SENTENCING

15.1 The principles of sentencing are articulated in what has been coined the Zinn triad.[14] These are namely, (i) the accused’s personal circumstances, (ii) the nature of the crime (iii) the interests of society.

15.2 Because of the nature of the crime, I will address the third. I should warn that this does not in any way mean that the other two are not equally important. In R v Letsema Thejane, the Court of Appeal warned against the sentencing court emphasizing one of the 3 in favour of the others.[15] This court has therefore to be always alive to this caution that these three constitute a tri-pot and a balancing act has to be made when sentence is carried out. I find it imperative that the court emphasizes the issue of the interest of society for reasons that will appear in the narration.

15.3 It was said earlier in this judgement that this case involves mob justice. Mob justice refers to a situation whereby an emotional crowd of people administers punishment to a suspected criminal without following the law.[16]

15.4 Some scholars[17] have argued that institutional problems and unethical practices such as corruption, inordinate delays in prosecution of criminals, aggravate public distrust in the administration of justice. The situation is also exacerbated by socioeconomic disparities.

15.5 This distrust in justice institutions triggers individuals to adopt an unconventional approach against crime suspects resulting in activities such as mob justice. The justification for these acts is that they are done for public security's sake.

The causes of this mob justice are:

 

• Delay in the conclusion of cases before the courts of law.
• People becoming frustrated because of the delays in courts of law, they entertain a perception that something is amiss. They then conclude out of fear and suspicion that the perpetrator has an upper hand.
• Socioeconomic disparities also contribute to the distrust.  The poor see the rich as the only beneficiaries of the criminal justice system.
• Also, people’s misconception of bail fuels this perception. Society believes amongst other things that granting an accused person bail, grants him liberty to be a repeat offender or threaten victims. This coupled with the delay in prosecution confirms these fears.
• Society views bail as treating perpetrators with kid cloves. They confuse bail with freedom from prosecution.

 

• A deficit of trust in the police. People have lost respect for police officers and they carry out mob justice to intentionally show that the police are too weak to control the criminal activities of the community. In this case for instance, the police officer who gave evidence, without any ounce of shame, testified that he was present at the scene of the crime. He did nothing to prevent it. He did not ask for backup from his colleagues. He seemed comfortable that since he was off duty, he had no obligation to prevent crime. How then can society trust police officers? More needs to be done.

 

• Public disappointment in the legal system as well as the perception of corruption in courts and delays in trying suspects are some of the causes of mob or instant justice.
•  beneficiaries of bail perpetuate the myth as they stick out their tongues at society in victory, leading the public to believe that the trial has come to an end and the justice system has rendered the criminal untouchable.

 

15.6 There are many other reasons. I have listed these because they resonate, according to the evidence before me, with the emotional turmoil that the accused and the members of his family (and possibly the community) were going through. I dare say, a large population of Basotho.

15.7 Scholars have also written that, when there is mistrust in the system, people are likely to take the law into their own hands. When public officials exhibit either manifest or latent discrepancies in law enforcement, this has a rippling or trickle-down effect on subordinates, the entire civic behaviour or general moral degeneration.[18]

15.8 That said, it however cannot be ignored that mob justice infringes on the human rights. Not only of the victims of mob justice, but that of society as a whole. Children are made to witness atrocious imagines that will forever have an impact in their adult life. adults suffer post traumatic stress from the images of the cruelty they witness. This is so because mob justice involves alleged suspects being subjected to physical violence, torture, inhumane and degrading treatment, which consequently results in mental and physical health complications. Of the victim (who may live to tell the tale) and the perpetrators.

15.8 It should also be emphasised that mob justice also places a threat on the national Constitution and constitutional order. This is the ultimate disruptive behaviour of mob justice. Once the constitutional makeup of any nation is put under threat, the rule of law becomes an illusion. Anarchy becomes the order of the day. Needless to say, this is unacceptable.

15.9 Sibanda[19] writes that it is this effect of mob justice that the courts should jealously guard against. Courts should uplift the country’s constitutional order and constitutionalism whether circumstances permit or not. Whilst courts can and should be aware of the prevailing social order, they should never drop the bar to allow the Constitution to be sacrificed. 

16.10 It is for this reason that although the court has heard and considered the mitigation factors submitted on behalf of the accused, it cannot turn a blind eye to the cruelty of his actions whose consequences temper with the rule of law. If courts were to fall in that trap, of accepting that the criminal justice has failed, the courts which were seen as far back as the 1700’s  when Alexander Hamilton noted in The Federalist # 78 that …courts.

15.11 This country is marred by incidences of mob justice. This may very well be symptoms of a failure somewhere in the system.  Whatever the cause of these kangaroo courts, this court has to somewhat show its displeasure against this inhumane practice. The sentence that I give should send a message to society that no form of vigilantism is acceptable. Whether society feels that the police, the prosecution or the courts are incompetent, corrupt or inadequate, mob justice cannot and should never be the solution to crime.

15.12 Having said this, I record that in sentencing this accused, I have also incorporated into the sentence the fact that not only is the accused a first offender and a father of 5 children, he also displayed ultimate faith and trust in the judicial system in that he endured a 15-year journey with the courts of law. He religiously adhering to the summons of the court. Attending each court day and never violating the sacrosanct bail condition to attend trial. I must mention that his trial had neared an end (close of arguments) when Hlajoane J met her demise. This resulted in the matter being heard de novo. There has also been a period where court recording system failed when the matter was before Sakoane J (as he then was). Through it all, the accused endured the trauma of attending the trial without missing a court date. I am quick to note the sentiments of Ramodibedi P in Letsema Thejane that this period in awaiting trial should factor in only when the accused was not on bail. Not where the court is sentencing. An accused who had liberty.

16.13 It is these personal circumstances that I have incorporated in sentencing the accused. I am also of the view that the accused is a candidate for reform. I alluded earlier to his mannerisms as displayed in the diligent attendance of court proceedings. Also, his general demeanor, excluding his whispers when giving evidence talks to this issue.  

16.14 Ordinarily murder attracts a sentence of long incarceration, if nothing to show the courts value of the sanctity of life, deterrence and retribution.  This too I have considered.

Incorporating all these conflicting factors, I harmonize them and in so doing, I sentence this accused as follows:

1. 13 years imprisonment for the charge of murder.
2. Further, in line with restorative justice, I order the accused to compensate the family of the deceased and to raise the head of the deceased according to Sesotho custom (Ho tsosa hlooho) in the amount of M10,000.00. I am persuaded in this by the fact that this crime involved neighbors. It would be a gesture that restores family and community peace and resonates with our sense of justice as a nation. These should be done at anytime at the convened of the accused during his lifetime.

My assessors agree with me.

 

------------------------------

M. G. HLAELE

JUDGE

 

For Crown:  Adv. T. Pone

Defence: Adv. R T.Makara