HIGH COURT OF LESOTHO
by the Honourable Mr. Justice B.K. Molai On 21st day of October, 2003
accused person appears before me charged with two counts of murder
and attempted murder on the following allegations:
Count 1: "In that upon or about the 2nd day of December, 1999
and at or near Mafeteng Reserve in the district of Mafeteng,
accused did unlawfully and intentionally kill Tsotetsi Mokete. "
Count 11: "In that upon or about the 2nd day of December, 1999
and at or near Mafeteng Reserve in the district of Mafeteng
accused did unlawfully and with intent to kill shoot Makoanyane
charges were put to him, the accused pleaded not guilty to both
counts. Mr. Fosa who represents the accused, in this trial,
court that the plea of not guilty tendered by the accused person was
in accordance with his instructions. The plea of
not guilty was,
accordingly, entered in respect of the two counts.
witnesses were called to testify in support of the crown case. No
witnesses were called to testify on behalf of the accused
however, himself went into the witness box and gave evidence in his
D/Tpr. Mokhachane, testified that he was a member of the Lesotho
Mounted Police Service based at Mafeteng Police Station.
between 8p.m. and 9p.m. on 2nd December, 1 999 he was at his duty
station in Mafeteng, when a certain vehicle brought
an injured person
by the name of Makoanyane Lepolesa who reported that he and his
companion had been shot and injured at "HL"
Mafeteng Reserve. According to him, P.W.1 could observe that
Makoanyane had sustained a bleeding injury on the ribs
of his left
side. The police then completed a medical form by which Makoanyane
was referred, in the vehicle that had brought him
to the police
station, to Mafeteng hospital for medical treatment.
the report made by Makoanyane, P.W.1 himself proceeded to the
supermarket. He was accompanied by a certain Tpr. Molelle.
approached the "HL" supermarket they noticed and, went to a
group of men next to BP garage filling station
along the public road
loading from Mafeteng town to Thabana-Morena.
arrival P.W.1 found that the group of men was gathered around a
person who was lying down, clearly injured as he was covered
blood. He identified the injured person as one Tsotetsi, an
acquaintance of his. As Tsotetsi was still alive, the police officers
immediately rushed him, in the police vehicle in which they were
travelling, to Mafeteng hospital. They did not even wait to examine
him for injuries It was only when they were already at the hospital
that P.W.1 noticed that the injury which Tsotetsi had sustained
wound on the chest. P.W.1 assured the court that Tsotetsi did not
sustain any injury whilst he was being transported, in
vehicle, from the BP garage filling station to the hospital. I shall
return to P.W.1's evidence, in a moment.
Molelle testified as P.W.5 and told the court that he too was a
member of the Lesotho Mounted Police Service, stationed at
Police Station, in the district of Mokhotlong. In 1999 he was,
however stationed at Mafeteng police station, in the
testimony, P.W.5 corroborated, in material respects, the evidence of
P.W.1. In particular, he confirmed P.W.1s evidence that
still alive when he and P.W.1 left him at Mafeteng hospital where he
was admitted, on 2nd December 1999. However,
on the following day,
3rd December 1999, P.W.5 learned that Tsotetsi had died at the
returning to his evidence, P.W.1 told the court that on the morning
of the following day, 3rd December 1999, the accused surrendered
himself at Mafeteng police station and handed over a "commando"
the, serial number 23127, loaded with 3 bullets. According
P.W.1 took possession of the rifle which had since been in the
custody of the police. He handed it in, together with its
as exhibit "1" and part of his evidence, in this trial.
further told the court that after he had duly cautioned him, the
accused explained that at about between 8p.m. and 9p.m.
previous day, 2nd December 1 999, he and another security man by the
name of Mabusetsa Suping (now deceased) were outside
supermarket when he (accused) noticed two men, who were apparently
drunk, approaching thorn. When they arrived where
the accused and
were sitting outside the "HL" supermarket one of the two
drunken men said he could smell meat. The accused and
therefore give them meat. When the accused replied that there was no
meat, drunken man insisted that he and his companion
should be given
meat because they could smell it. The accused then told the two men
to leave the place because they (accused and
Suping) were at work.
explanation, the accused told P.W.1 that he then noticed one of the
two drunken men putting his hand on the waist. Believing
drunken man was taking out a firearm to shoot him and Suping, the
accused cocked his firearm. The drunken man, who was
the deceased in
count; 1 (Tsotetsi) then said: "oh my friend, I am used to
firearm business. " As he uttered those words,
towards him (accused). the (accused) fired at him. He did not first
fired a warning shot in the air
had been shot at, Tsotetsi and his companion ran away. As they were
running away the accused fired another shot at, and
Tsotelsi and his companion. He (accused) also blew his whistle so
that other security men, in the town of Mafeteng,
could join in the
chase against the two drunken men. According to the explanation of
the .accused, his intention was to have the
two drunken men arrested
and taken to Mafeteng Police Station.
the accused's explanation, P.W.1 charged him as aforesaid and
arrested him. When P.W.1 asked him whether or not he would
prepared to repeat, before the Magistrate, the explanation he had
given to him, the accused replied in the affirmative. P.W.1
escorted the accused to the Magistrate office, presumably for the
purpose of making a confession. However, no evidence of
was adduced, in his trial.
common cause that on 7th December 1999, and at the Mortuary of
Mafeteng government hospital, a medical doctor performed a
post-mortem examination on a dead body of a male African adult. The
medical doctor prepared a post-mortem examination report which
by consent of the parties, handed in, from the bar, as exh. "A".
to exh. "A", the dead body was identified before the
medical doctor, by Aarone Mokete and Bohloa Sekese, as
being that of
Tsotetsi Mokete. In his examination of the dead body the medical
doctor found that the deceased had sustained a gun
shot wound which
penetrated through the chest, from the front to the back, below the
scapula, injuring, in the process, the right
lung. There was, in the
finding of the medical doctor, haemothorax. On these findings, the
doctor formed the opinion that the deceased had died as a result of
the gun shot wound which had been inflicted on him.
think of no good reasons why the opinion of the medical doctor that
the deceased had died as a result of the gun shot injury
been inflicted on him should be doubted. The salient question that
now .arise:. for the determination of the court is
whether or not the
accused is the person who inflicted the gun shot injury on the
deceased and, therefor, brought about his death.
In this regard, the
court heard the evidence of Makoanyane Lepolesa who testified as
P.W.6 and told the court that at about 4:00p.m
on 2nd December 1 999
he and Tsotetsi Mokele (the deceased in Count 1) went to drink beers
in one of the beer-drinking houses at
the bus stop, in Mafeteng town.
When, at about 8:00p.m on that day, they left the beer house for
their home, at ha-Lepolesa, P.W.6
had already consumed 9 quart
bottles of beer. He was, however, not drunk.
say I find it incredible that P.W.6 could have consumed 9 quart
bottles of beer and yet remained sober. I think P.W.6 is
one of those
people who wrongly, believe that for one to be drunk one must be
crawlingj on his knees.
as it may, P.W.6 went on to testify that shortly after they
the beer house for their home, he stopped next to some shacks to pass
water whilst the deceased continued on his way home.
water, P.W.6 heard the deceased, who was walking some distance ahead,
calling him and saying he could smell meat.
P.W.6 then ran towards
the deceased. As he was thus running towards the deceased, P.W.6
heard a gun report from behind. He looked
back but could not see
anybody. When he continued running towards the deceased, he heard a
second gun report and felt a bullet
hitting him on the left side of
his chest. As a result, he fell to the ground. When he got up from
the ground, P.W.6 noticed 3
security men chasing after the deceased
who who running in the direction towards the Mafeteng police station.
He (P.W.6) himself
ran downwards in the direction towards a B.P.
garage filling station, which was along the public road leading from
Maseru to Mafeteng,
town. He had not seen the person who had shot at
him. He merely assumed that one of the 3 security men had done so
because he had
seen them chasing after the deceased.
denied the suggestion that he and the deceased had ever come to "HL"
supermarket where the accused and the late
Mabusetsa Suping were
allegedly silting around a fire. He told the court that when he
arrived as the BP garage filling station,
he asked for help and was
rushed, in a white sprinter" vehicle, to Mafeteng Police Charge
Office. He confirmed the evidence
of P.W.1 that on arrival at the
the police requested the driver of the white "Sprinter"
vehicle to take him to the hospital where he was examined
admitted in hospital by a medical doctor who compiled a report. The
medical report was by agreement of the parties, handed
in, from the
bar, as exh. "B".
to exh. "B", the police, at Mafeteng Police Station,
referred P.W.6 who was alleged to have sustained a gun
to Mafeteng hospital for medical attention. He (P.W.6) was duly
examined by a medical doctor at Mafeteng government
"B" futher revealed that P.W.6 had sustained gun shot
wounds on the left side of his chest . He was, on
2nd December 1999,
admitted in hospital and discharged on the following day, 3rd
told the court that, whilst his injury was being cleaned by the
nurses, he noticed Tsotetsi, who had also sustained injuries,
arriving at the hospital. After the nurses had cleaned his injuries,
Tsotetsi was taken inside the hospital although he (P.W.6)
know where inside the hospital he (Tsotetsi) was taken. However, on
the following day, 3rd December 1999 P.W.6 learned
from the nurses
that Tsotetsi had passed away.
Moiloa David Tsiloane, testified that he lived at Motsemocha, in the
district of Mafeteng. He knew the accused person. On the
question (2nd December 1999), he was working as a security man at the
home of one Mahapela Sello, in Mafeteng town. The
accused was also
working as a security man at "HL" supermarket which was
about 100 metres away from the home of Mahapela
Sello in the same
between 8p.m and 9p.m on the same day, P.W.2 was at his place of work
when he heard a gun report and people quarrelling
from the direction
of "HL" supermarket. Shortly thereafter, he heard a second
gun report and noticed two people running
away from the direction of
"HL." supermarket towards the public road leading from
Thabana-Motena to Mafeteng town. He
then heard whistles being blown
and people shouting "Thiba kamoo" (Stop from that side). He
could identify the people
who were shouting by their voices as being
the accused and the late Mabusetsa Suping. He joined them in the
chase after this two
people who were running away and then heard a
third gun report. The third gun report could not, however, have come
from the firearm
which the accused was carrying because accused
carried his firearm on the shoulder and its barrel was pointing
backward as he ran.
At that time, P.W.2 noticed that many other
people were also chasing after the two people who were running away.
third gun report was heard, one of the two people, who were running
away, took a downward direction towards the I.E.C.
Asia Supermarket whilst the other took the direction toward the BP
garage filling station along the Thabana-Morena
public road. P.W.2
and Mabusetsa Suping followed the one who ran in the direction
towards BP garage filling station whilst the
accused followed the one
who ran downwards. According to P.W.2, when he came to the filling
station he found that person already
surrounded by many people where
he had fallen but still alive.
thereafter, the accused arrived and identified the person as the
person he had earlier shot at. Although he could not see
on him, P.W.2 noticed that there was a pool of blood on the ground
where that person was lying. Thereafter, P.W.2 left
the place and
returned to his place of work. He was in the company of Suping,
Mohlalist and MaIike who were also security guards,
in the town of
Mafeteng the accused himself went into the garage saying he was going
to telephone the police.
whilst: P.W.2 and his party were still on the way to their respective
places of work, the accused joined them. Shortly
thereafter, they met
police officers who were travelling in a police vehicle. The police
offices asked them what was happening
at the filling station.
the accused who answered and spoke to the police officers. P.W.2
could not follow what was said in the conversation between
accused and the police officers. After they had spoken to the
accused, the police officers; proceeded to the filling station
followed by the accused himself. According to him, P.W.2 did not know
what eventually become of the person he had left lying in
a pool of
blood next to the garage. Nor did he know what became of the person
who had earlier run in ,a downwards direction.
Thato Sam, testified that he was an employee of a BB Alert security
company. He was stationed at Qacha's Nek, in the district
Nek. In December 1 999 he was already employed by the BB Alert
Security Company but stationed at Mafeteng town, in the
Mafeteng, where he was working as a security guard at BP garage
filling station, commonly known as City Filling Station.
the court that one day, in December 1999, at about 8p.m., he was.
behind the building of the BP garage Filling Station when
three (3) gun reports and the blowing of whistles, in front of the
building, He moved to the front of the building from
where he noticed
many people running in the direction towards his filling station.
When he called out and asked what was happening
there was no reply
from those people who kept on running in the direction towards the
Station PW4 then cocked his firearm and fired a warning shot in the
air It was only then that those people stopped running
City filling station and scattered in different directions.
P.W.4 walked lower down, from his place of work, towards the public
road. On his return, he noticed that a group of workers
filling Station had gathered at a furrow next to the filling station.
He went there and found that there was a person who
had fallen into
that furrow. He instructed the workers to take that person out of the
furrow whilst he himself went into the filling
station building and
telephonically reported to the police at Mafeteng Police Station. He
then returned to where the person who
had been taken out of the
furrow was placed in front of the filling station building.
thereafter, the accused, whose name he later came to know as
Retselisitsoe, came to the scene. On arrival, the accused observed
that there was a pool of blood where the person who had been taken
out of the furrow was placed, in front of the filling station
building. The accused also lifted up the skipper that the person
taken out of the furrow was wearing and remarked that that person
a wound on the shoulders. According to him, P.W.4 did notice the pool
of blood pointed out by the accused where the man taken
out of the
furrow was placed in front of the filling station building. He also
skipper worn by the man taken out of the furrow had blood stains.
That was however, at the time the accused observed that
the man was
lying in a pool of blood and lifted up his skipper.
confirmed that eventually the police officers arrived at the scene
but he no longer remembered whether the accused was still
there or he
had already left. He, however, confirmed that after they had arrived
at the scene the police officers conveyed away
the person, who had
been taken out of the furrow, to Mafeteng hospital. He (P.W.4) did
not accompany that person when the police
officers transported him
from the City filling station to Mafeteng hospital.
evidence PW.3, Khesuoe Paul Seeko, told the court that he lived at ha
Tsosane, here in Maseru. In 1999 he was employed by
BB Alert Security
Company and stationed in the district of Mafeteng as a guard man at.
BP garage filling station, commonly known
as "Good Hope Garage"
in the town of Mafeteng. He remembered that at about between 8p.m and
9p.m on 2nd December 1999
he was at his duty station when he heard
tow (2) gun reports and a whistle being blown. He was at that time in
the company of other
workers of the Good Hope Filling Station and
many people who had come to fill petrol at the filling station.
after he had heard the gun reports, P.W.3 noticed a person
approaching the filling station. On arrival at the filling station,
that person explained that he had been shot at when he was next to
another BP garage filling station along the public road leading
Thabana-Morena to Mafeteng town (City Filling Station). He asked for
assistance P.W. 3 noticed that the person had, indeed,
injury on the left side of his chest. He (P.W.3) and the other people
at the filling station did assist that person
by calling the police.
appear that the police did subsequently arrive at the scene because
PW.3 told the court that he and two (2) police officers
person who was driving a white "Sprinter" passenger vehicle
with a request for help. That person did help
by conveying away the
injured person in his white "Sprinter" passenger vehicle.
Although P.W.3 did not accompany the
injured person when he was taken
away in the while "Sprinter" passenger vehicle, the two
police officers did accompany
further told the court that, about 10 minutes later, the while
"Sprinter" passenger vehicle returned to the "Good
Hope" filling station and the driver thereof reported that
another person had been shot next to the BP garage filling station
along the public road leading from "Thabana Morena to Mafeteng
town (City Filling Station). As a
the report P.W 3 proceeded to the City Filling Station along the
Thabana - Morena Mafeteng public road. On arrival at
the City Filling
Station, he found that the person who had allegedly been shot at was
no longer there. He could only see a pool
of blood, presumably at the
spot where the injured person had been placed after he had been
removed out of the furrow. According
to P.W.3, he subsequently
reported the incidents to his head quarters.
defence,the accused gave evidence as D.W.1 and testified that he
lived at Mohlaka-oa-Tuka, in the district of Maseru. He
unemployed. However, in 1999 he was still employed by MM Security
Company and stationed in the district of Mafeteng where he
a night security guard at "HL" supermarket, in the town of
to D.W.1, on the night of 2nd December, 1999 he was at his duty
station, the "HL" supermarket. He was in the
three (3) other people namely Mabusetsa Suping (now deceased) who was
also a trained security guard employed by the
Company and stationed ,at "HL" supermarket, a night
watchman who was not a trained security officer
but also employed at
the "HL" supermarket and another person who was, however,
neither an employee of the MM Security
Company nor working at "HL"
supermarket. D.W I testified that of the four (4) people he was the
carrying a firearm. He told the court that it was raining on the
night of the day in question and they were sitting around
a fire at
the "HL" supermarket
perhaps, be mentioned, at this juncture, that although D.W.1
initially said Mabusetsa Suping was also working with him at
supermarket, he later somersaulted and told the court that Mabusetsa
Suping was, in fact, employed as a security
guard at a different shop
and had only come to "HL" supermarket to protect himself
from the rain as there was no where
he could protect himself at his
as it may, D.W.1 went on to testify that as he and his three
(3)companions were sitting around the fire at "HL"
supermarket two men came to them and demanded meat. When D.W.1 told
them that there was no meat where he and his companions were
around the fire, the two men insisted to demand meat saying they
could smell it. D.W.1 then invited them to look in the
satisfy themselves that there was no meat.
two men had looked in the fire and satisfied themselves that there
was, indeed, no meat, one of them caught hold of the
D.W.1 was carrying and told him (D.W.1) that, since there was
he and his companion were going to give him (D.W.1) his mother. A
struggle for possession of the firearm then started between
that man When the late Mabusetsa Suping stood up and tried to come to
his (D.W.1's) assistance, the other man told him to
sit down. He
ordered him and the other people who were seated around the fire to
lie down. They all obliged. As he ordered Mabusetsa
Suping and the
other people to lie down that man pulled up his jersey and D.W.1
could notice dark object on his waist.
say, I find n rather incredible that whilst he and the person who
wanted to dispossess him of his firearm were engaged in
D.W.1could have had the leisure to observe what the companion of the
man with whom he was struggling did to his jersey
and had on his
waist. Nor could he have had the leisure to observe that Suping and
the other people who were seated around the
fire did lie down in
response to the order of the companion of the man with whom he was
seriously struggling for possession of
event, D.W. 1 told the court that he later came to know that the
names of the man with whom he struggled for possession of
and the one who ordered Suping to sit down were Makoanyane and
Tsotetsi, respectively. He told the court that, during
the course of
the struggle for possession of the firearm, Makoanyane intensified
However he (D.W.1) also firmly increased his grip on the firearm and
pulled it away so hard that he overpowered Makoanyane.
In the process
D.W.1 fell on his back some distance away from his rival (Makoanyane)
told the court that, whilst he was still on the ground, he cocked his
firearm he then noticed Makoanyane approaching him and
as he did so
he(Makoanyane) was uttering the words "Boys of your age do me
nothing at my home, in Leribe" or words to
that effect. It was
at that stage that, in self-defence, D.W.1 aimed, opened fire, and
shot, at Makoanyane who was apparently not
armed with any weapon, at
private defence of self-defence to avail him, D.W.1 must, inter alia
have acted to repel an eminent danger on him and the
means he uses to
repel that danger must be proportionate. If his evidence were to be
accepted as correct, D.W.1 told the court
that as he lay on the
ground where he had fallen during the struggle for possession of the
firearm, he noticed Makoanyane, who
was not armed with any weapon,
approaching him and uttering threatening words. He then aimed, opened
fired and shot at Makoanyane.
The bullet hit Makoanyane and then went
on to hit Tsotetsi who was, at the time, standing approximately 4
metres behind him (Makoanyane).
In using a weapon as lethal as a
firearm to shoot at a person who was threatening him bare
with no weapon at all, it must be accepted that the means used by
D.W.1 to repel the danger, he may have been faced with,
disproportionate. for this reason, the private defence of
self-defence could not have availed him.
further told the court that after he had shot at him, Makoanyane ran
away together with Tsotetsi. In the contention of D.W.1
the bullet he
had fired at Makoanyane hit the latter and then went on to hit
Tsoteisi who had been standing approximately 4 metres
Makoanyane and Tsotetsi ran away, D.W. 1 blew his whistle and chased
after them. He was joined in the chase by all the people
who had been
siting around the fire at "HL" supermarket and many other
security men in the town of Mafeteng. The reason
for the chase was to
arrest Tsotetsi and Makoanyane so that they could explain why they
did what they had done at "HL"
told the court that after Makoanyane and Tsotetsi had run away for a
distance of approximately ten (10) metres the latter
fell down whilst
the formen continued running away. Suping and the other people who
had joined in the chase remained with Tsotetsi.
continued chasing after Makoanyane who, however, outran
disappeared in the darkness. D.W.1 then returned to where Tsotetsi
had fallen. On arrival he noticed that Tsotetsi was restless
lay on the ground where he was surrounded by many people. According
to him, D.W.1 examined Tsotetsi for injuries and noticed
that he had
sustained a bleeding wound on the back towards the shoulders.
D.W.1 went to the City Filling Station building to ask for permission
to use the telephone and report the incident to
the police. However,
the security man at the filling station himself telephoned the police
who subsequently arrived at the scene.
After D.W.1 had explained to
them what had happened, the police officers conveyed away Tsotetsi,
in their police vehicle saying
they were taking him to the hospital.
D.W.1's observation, Tsotetsi was already dead when the police
officers took him to hospital. It will be recalled, however, that
their evidence P.W.1 and P.W.5, the police officers who had
transported Tsotetsi to the hospital, told the court that when they
rushed him to the hospital, Tsotetsi was still alive. They were
supported, in this regard, by the evidence of P.W. 6 who testified
that on arrival at the hospital Tsotetsi was not taken to the
mortuary but left in the hands of the nurses who immediately attended
to his injuries. That being so, there is no doubt in my mind that
D.W.1 could not be
in his observation that Tsotetsi was already dead when the police
officers rushed him to the hospital.
as it may, D.W.1 went on to tell the court that when the police
officers rushed Tsotetsi to the hospital, he and the other
men dispersed and returned to their respective places of work, in the
town of Mafeteng. After approximately an hour, the
again, came to D.W.1 and his colleagues at "HL" supermarket
and reported that besides Tsotetsi, another
person with a gun shot
wound, presumably Makoanyane, had also been taken to the hospital.
4 a.m. on the night of the same day, 2nd December, 1999, a Police
Officer came to "HL" supermarket and told D.W.1
person he had earlier shot, presumably Tsotetsi, had died at the
hospital. On the following day, 3rd December, 1999, D.W.1
to Mafeteng Police Station where he surrendered himself together with
his firearm, Exh.1 which, according to him, he
had used to shoot
Makoanyane and Tsotetsi.
the evidence as a whole, I can find no good reason to disbelieve the
accused, in his testimony that he was the person
who aimed, opened
fire and shot, at Makoanyane. At the time he did so, the accused was
aware that Tsotetsi was standing approximately
behind Makoanyane He nevertheless fired the bullet which hit
Makoanyane and went on to fatally injure Tsotetsi who was admittedly
not threatening him (accused) at all. The question I have earlier
posted viz. whether or not the accused is the person who inflicted
the gun shot injury on Tsototsi (deceased in Count 1) and, therefore,
brought about his death, must be answered in the affirmative.
only question that remains for the determination of the court is
whether or not in fatally injuring Tsototsi as he did, the
had the requisite subjective intention to kill him. Assuming the
correctness of his evidence that at the time he opened
Makoanyane he was aware that Tsotetsi was standing only 4 metres
behind him (Makoanyane), I am convinced that the accused
was aware of
the possibility of the bullet fatally hitting Tsotetsi as well. He
nevertheless opened fire regardless of whether
or not Tsotetsi would
be fatally hit. In my finding, the accused did have the requisite
subjective intention to kill, at least,
in the legal sense.
It is not
really disputed that the accused did shoot at and injured Makoanyane
(PW6), the complainant in Count II. The salient question
determination of the court is whether or not he did so, with the
requisite subjective intention to kill. Notwithstanding
contention that he did so in self-defence, I have found, on evidence,
that in the circumstances of this case, the private defence
self-defence could not avail him. At the time the accused noticed
that Makoanyane was
him, where he had fallen on the ground, the latter was not armed with
any weapon whatsoever. He was only threatening
him with words. Where
he is threatened with words, the accused cannot, in law, be allowed
to use a firearm to repel that threat.
finding in shooting at and injuring Makoanyane as he did, the accused
was aware that death was likely to occur. He nonetheless
on Makoanyane reckless of whether death did occur or not. The accused
did, in my view, have the requisite subjective
intention to kill.
However, by a sheer luck Makoanyane was only injured and did not
result, I come to the conclusion that the accused has committed the
offences against which he stands charged, in Count I
and Count II.
Accordingly, the accused is convicted as follows:
Guilty of murder as charged.
Guilty of attempted murder as charged
convicted the accused of murder in Count l, the court is now enjoined
by the provisions of section 296 (1) of the Criminal
Evidence Act, 1981, to determine whether or not there are any factors
that tend to reduce the moral blameworthiness
this regard the court found, on evidence, that in killing the
deceased, as he did the accused had intention, in the legal
i.e he had not planned or premeditated the death of the deceased.
absence of premeditation of the deceased's death is, in my view, a
factor that tends to reduce the moral blameworthiness of
accused's act. In my finding, extenuating circumstance, viz. the
absence of premeditation to kill the deceased, does exist
case. The proper verdict in Count I is, therefore, that the accused
is guilty of murder with extenuating circumstances.
Assessor agrees with this finding.
is informed, by the crown counsel, that the accused has no record of
previous convictions. He is, therefore, a first offender.
mitigation of the accused's punishment, the defence counsel also
invited the court to consider a number of factors. They have
eloquently argued by the defence counsel that there is no need for me
to go over them, again. Suffice it to say they have
all been taken
into account in assessing the sentence that is imposed on the accused
addition, the court took into account that the relatives of the
deceased will, in accordance with our Sesotho custom, probably
the accused "to raise the head" i.e for compensation. In
that eventuality, this court is only The first to punish
Another court, viz. the
Court, is yet to punish him. It is important that in imposing
punishment on the accused, this fact is borne in mind by this
lest it be said the courts of law punish a person twice for the same
considering all these factors for the benefit of the accused person,
the court is, however, not prepared to turn a blind eye
seriousness of the offences with which he has been convicted. There
is a need to impose a commensurately serious punishment.
that will deter the accused from a repetition of the kind of
behaviour against which he has been convicted. A punishment
serve as a lesson to the accused and people of his mind that the
courts of law do not tolerate the sort of behaviour
against which the
accused person has been convicted.
It is for
the aforesaid reasons that the following sentence is found
appropriate and, therefore, imposed on the accused person:
Count I :
Ten (10) Years Imprisonment.
: Two (2) Years Imprisonment.
sentences are to run concurrently.
: Miss. Motinyane
Defence: Mr. Fosa
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