Rex V Lebohang Ntsebeng (CRI/T/0100/2022) [2023] LSHC 130 (3 November 2023)

IN THE HIGH COURT OF LESOTHO Held at Maseru In the matter between REX And CRI/T/0100/2022 CROWN LEBOHANG NTSEBENG ACCUSED Neutral Citation: Rex v Lebohang Ntsebeng [2023] LSHC 130 CRIM (03rd November 2023). CORAM: HEARD: T. J. MOKOKO J 02ND NOVEMBER 2023 DELIVERED: 03RD NOVEMBER 2023 SUMMARY Murder- Single Witness Evidence - Witness found competent and credible- Crown’s case on Circumstantial Evidence - Accused convicted of murder with Dolus Directus. ANNOTATIONS Cases 1. Lefaso v Rex LAC 1990 – 1994 44 2. Letuka v Rex LAC 1990 – 1994 3. Mohlalisi and Others v Rex 1992 (1) SACR 628 (C) 4. Moshephi and others v Rex LAC (1980-1984) 5. Phaloane v Rex 1981 (2) LLR 6. R V Mlambo 1957 (4) SA 727 (A) 7. R v Ranthithi LAC 2007-2008 245 8. R v Tumelo CRI/S/4/10/ [2011] LSHC 45 9. Scout v Rex LAC 2009-2010 279 10. S v Chabalala 2003 (1) SACR 134 (SCA) 11. S v Kubeka 1982 (1) SA 534 (W) 12. S V Mafela 1980 (3) SA 825 (A) 13. S v Munyai 1986 (4) SA 712 14. S V Ngobeni LAC (1980 – 1984) 110 15. S v Petrus 1969 (4) SA 85 (A) 16. S v Prins1990 (1) SACR 426 (A) 17. S v Van Aswegen 2001 (2) SACR 97 (SCA) 18. S v Zinn 1969 (2) SA 537 (A) 19. Tebbut J. in S v Jaffer 1988 (2) SA 84 Statutes 1. Criminal Procedure and Evidence Act 1981 2. Penal Code Act 2010 INTRODUCTION JUDGMENT [1] The accused-Lebohang Ntsebeng was charged with contravention of provisions of section 40 (1) of the Penal Code Act 2010, read with section 26 (1) and section 40 (2) thereof. In that upon or about the 26th day of December 2019, and at or near Ha Ralekone Phamong in the Mohale’s Hoek district, the accused did an unlawful act or omission, with intention of causing the death of Zondane Comene, such death resulting from his act or omission. [2] At the commencement of the trial, Adv. M. Mapesela, the crown counsel applied for the withdrawal of the charges against Accused No. 2 and Accused No. 3, in terms of section 278 (3) of the Criminal Procedure and Evidence Act 1981. Section 278 (3) of Criminal Procedure and Evidence Act 1981 provides that, nothing in this section shall deprive the Director of Public Prosecutions or the public prosecutor with his authority or on his behalf, of the right of withdrawing any charge at any time before the accused has pleaded and framing a fresh charge for hearing before the same or any other competent court. The charges against accused no. 2 and accused no. 3, were accordingly withdrawn. The accused pleaded not guilty to the charge. [3] The crown’s case is anchored on the evidence of two (2) witnesses and admitted post-mortem report, viz, D/L/Sgt. Mokuoane (PW1) and Retselisitsoe Tsotetsi (PW2). On the other hand, the defence case was based on the evidence of Lebohang Ntsebeng (DW1) and Paseka Roboro (DW2). CROWN’S CASE [4] Detective Lance Sergeant Mokuoane- PW1 is a member of the Lesotho Mounted Police Service stationed at Phamong Police Post in the Mohale’s Hoek district. PW1 testified that on the 26th December 2019, he was on duty, when he received a report from the Chief of Ha Ralekone, concerning the death of the deceased. PW1 said himself and other police officers went to the crime scene. He testified further that he discovered that the deceased was lying on the ground facing down wards and there was some blood in the water, around the deceased. Upon examination of the body, he observed that the deceased had sustained injuries on the body, which appeared to have been caused by a sharp object. He testified that the throat of the deceased was slit open, and it appeared that the neck had been slaughtered. Next to the deceased there were footprints. They took the deceased to the mortuary. He stated that the investigations led him to the accused. He introduced himself to the accused, cautioned and warned him and sought his explanation. He then gave the accused a charge of murder and arrested him. The accused handed over the knife, alleged to have been used in the commission of this offence. The knife was handed in as an exhibit and it was marked exhibit “1”. [5] Under cross-examination, the defence contended that the accused arrived at the shop, and Retselisitsoe Tsotetsi- PW2, called the accused and told him that the deceased had assaulted one Sello Tsotetsi. It was further suggested to PW1, that while PW2 was narrating to the accused, what had happened, the deceased appeared behind the shop and attacked them. The cross-examination was to the effect that, the accused chased the deceased downwards until the deceased got at one Khofotsa’s house, and the accused remained outside Khofotsa’s yard. The defence contented further that PW2 and one Maseisane pursued the deceased from Khofotsa’s house. The defence further contented that while the deceased was asking for help at Khofotsa’s house, the accused headed to the shop, and at that moment the deceased attacked the accused by hitting the accused with the stone on the back, and the accused fell. It was at that stage that the deceased tried to hit the accused with the stick, but the accused in self-defence stabbed the deceased with the knife on the left arm. The accused contented that after defending himself against the deceased, he went away. PW1 denied that the deceased ever attacked the accused. [6] The Post-Mortem Report was admitted by consent of the defence in terms of section 273 (1) of the Criminal Procedure and Evidence Act 1981. This section provides that, an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue and the admission shall be sufficient evidence of that fact. [7] The post-mortem report indicates that the body of the deceased was identified by Sekhonyana Comene and Moshe Ramohonella as that of Comene Zodane- the deceased. The report states that death was due to neck slaughtered hemopneumothorax. The external appearance – brown in complexion, with neck slaughtered, multiple chest stabs, bruises, and laceration in both hands. [8] Retselisitsoe Tsotetsi- PW2 testified that on the 26th December 2019, he was at the shop, whereupon the deceased hit one Sello Tsotetsi with a stick. He stated that himself and the accused agreed to catch/apprehend the deceased, but the deceased ran away. They pursued the deceased who ran straight downwards to one Khofotsa’s house. PW2 testified that the deceased ran around the house asking for help. They were throwing stones at him, and from Khofotsa’s house, the deceased ran downwards towards the cliff or the stream. He testified that the deceased was in front, and the accused in the middle and PW2 behind the accused. PW2 testified that the accused pursued the deceased downwards towards the cliff or the stream. He testified that the deceased ran down into the cliff, and the accused was hot on the deceased heels into the cliff. He testified that the deceased and the accused outran him, but he could see them, as the accused had put on his cell phone torch. He testified that when the accused emerged down from the cliff, he was holding a knife and his hands and the knife, were covered with blood. He stated that one Tinare was also chasing the deceased, while one Maseisane was left behind. PW2 testified that Tinare went down to see the deceased. PW2 testified that he did not see the accused stab the deceased, as they outran him. He testified that all he saw was that when the accused came up from the stream, he was holding a bloody knife, and his hands were covered with blood. [9] Under cross-examination, it was suggested to PW2 that while outside the yard of Khofotsa, the deceased hit the accused with the stone on the back and the accused fell, and that the deceased tried to hit the accused with the stick, and in self-defence the accused stabbed the deceased with the knife on the side of the body. It was suggested to PW2 that he did not see the attack on the accused, because it was dark. PW2 denied the accused’s version that the deceased hit the accused with the stone and that the deceased attempted to hit the accused with the stick. PW2 said he saw everything that transpired at Khofotsa’s place, because the accused had put on his cell phone torch. Under cross-examination, it was put to PW2 that the accused had no cell phone on him. PW2 stuck to his version that the accused had a cell phone on himself. Further under cross-examination, PW2 stuck to his version that the accused chased the deceased downwards towards the stream. PW2 denied that the deceased attacked the accused, thus justified to defend himself. [10] The court asked PW2 to clarify where Tinare was when the accused went down the stream after the deceased. PW2 stated that when the accused arrived from down the stream, Tinare arrived. The court further asked PW2 whether Tinare found the accused having returned from the stream or cliff, and his answer was in the positive. Crown then closed its case. DEFENCE’S CASE [11] Lebohang Ntsebeng- DW1 testified that on the 26th December 2019, he went to the shop, and whilst there, PW2 told him that the deceased was in a fighting mood. He testified that the deceased chased them, and that he ran in front of the shop while PW2 ran behind the shop. DW1 testified that he ran away from the deceased, and while he was some distance away, he realised that PW2 and Maseisane tried to catch the deceased. He testified that the deceased then ran towards Khofotsa’s house. DW1 testified that he did not enter Khofotsa’s yard, and he heard the deceased asking for help, while being chased by PW2 and Maseisane. [12] DW1 testified that the deceased managed to escape from Khofotsa’s house, and the deceased went towards him, picked up a stone and hit DW1 with it on his back and he fell. He testified further that, when he got up, the deceased tried to hit him with the stick, and in self-defence he stabbed the deceased with a knife on the left arm. DW1 testified that after this stabbing, PW2 and Maseisane chased the deceased downwards towards the fields, and he returned to the shop. [13] Under cross-examination it was suggested that there was no way the deceased could attack the accused, who was just standing there, not posing any danger to the deceased, instead of attacking the people who were chasing him. DW1 stuck to his version that the deceased attacked him. Under cross- examination DW1 stuck to his story that after he had defended himself against the deceased, he went back to the shop, while PW2 and Maseisane chased the deceased downwards towards the stream. [14] Paseka Roboro- DW2 testified that on the 26th of December 2019, he was at Khokhotsaneng village, where he had attended a feast. That around 2:00 am he left Khokhotsaneng village. He testified that he heard some voices at Khofotsa’s house, especially the voice of someone who was seeking some help. He testified that he heard footsteps of people running at Khofotsa’s place. He then heard some footsteps running downwards towards the stream. As he was approaching the shop, he saw the accused coming from downwards in a hurry. He stated that the cliff was so deep that, it could not be possible for anyone to run down into the cliff and to go up the cliff. EVALUATION OF EVIDENCE AND DISCUSSION [15] The Crown’s case is based on circumstantial evidence. In evaluating the evidence, the court is guided by the following principles: In criminal proceedings the duty is on the crown to prove its case against the accused beyond a reasonable doubt. That the crown has a duty to prove a case against the accused beyond a reasonable doubt does not mean that it must “…close every avenue of escape which may be said to be open to an accused…” R V Mlambo1. [16] It is not correct to approach the evidence on the basis that because the court is satisfied with the credibility and reliability of crown’s witnesses, then ipso facto, the accused’s version should be rejected. The correct approach is rather: …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 the 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 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 1 1957 (4) SA 727 (A) at 738 A-C 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. Equally trite is the principle that there is no onus on the accused to prove the truthfulness of his version, so long as his version is reasonably possibly true, he must be acquitted: In Moshephi and Others v Rex2 the court had this to say: “Whether I subjectively disbelieved him is, however, not the test. I need not even reject the State case in order to acquit him…I am bound to acquit him if there exists a reasonable possibility that his evidence may be true. Such is the nature of the onus on the State. S v Kubeka3. [17] In S v Chabalala4, the court said the following of the approach to evaluating evidence: The trial court’s approach to the case was however holistic and in this case it was undoubtedly right. S v Van Aswegen5. 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 weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect the case for either party (such as the failure to call material witnesses concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) 2 LAC (1980-1984) 57 at 59 F – H 3 1982 (1) SA 534 (W) at 537 F – H 4 2003 (1) SACR 134 (SCA) at para. 15 5 2001 (2) SACR 97 (SCA) obvious aspect without assessing in the context of the full picture presented in evidence… [18] Detective Lance Sergeant Mokuane stated that upon the examination of the deceased he observed that the deceased had sustained injuries on the body, which appeared to have been caused by the sharp object. He further observed that the throat of the deceased had been slit open, and it appeared that the deceased’s neck had been slaughtered. Lastly, that next to the deceased there were footprints and blood in the water around the deceased. [19] The post-mortem reports shows that the neck of the deceased had been slaughtered. It further shows that the deceased had sustained multiple chest stabs, bruises, and lacerations in both hands. [20] Retselisitsoe Tsotetsi- PW2 testified that he agreed with the accused to catch or apprehend the deceased. They gave the deceased a chase up to Khofotsa’s house. From there they pursued the deceased and that the deceased and the accused outran him. PW2 stated that the deceased was in front while the accused was right behind the deceased. He testified that the deceased ran down into the cliff followed by the accused. When the accused emerged up from the cliff, he was holding a knife stained with blood and his hands were covered with blood. PW2 said that he could see the blood on both the knife and the accused hands because, the accused had put on his cell phone torch. [21] In my view the deceased was stabbed with a sharp object and his neck had been slaughtered with a sharp object. The deceased did not die from falling down the cliff. If his death had resulted from falling down the cliff, the deceased could have sustained injuries such as broken bones and other serious injuries consistent with falling down the cliff. In the absence of the injuries of this nature, coupled with the injuries shown on the post-mortem report, I conclude that someone stabbed the deceased and slaughtered his neck. [22] This court is called upon to determine whether the Crown has proved its case against the accused beyond a reasonable doubt. The crime of murder consists in the unlawful and intentional killing of another human being. The intention (mens rea) required must either be directus, eventualis, etc. Direct intention to kill is much easier to discern. I hold a strong view that in the present case, the intention to kill was dolus directus. Dolus directus being where the causing of death was premeditated. [23] It is a matter of common cause that the case for the crown depends on the evidence of a single witness, to wit; Retselisitsoe Tsotetsi- PW2. Section 238 (1) of Criminal Procedure and Evidence Act 1981 provides that: “Subject to sub-section (2), any court may convict any person of any offence alleged against him in the charge on the single evidence of any competent and credible witness.” (2) No court shall- (a) convict any person of perjury on the evidence of any one witness unless, in addition to and independent of the evidence of such witness, some other competent and credible evidence as to the falsity of the statement which forms the subject of the charge is given to the court: or (b) convict any person of treason except upon the evidence of two witnesses where one overt act is charged, upon the evidence of one witness to each overt act.” TWO QUESTIONS TO BE DECIDED BY THE COURT ARE: [24] (1) Is PW2 a competent and credible witness. (2) Is the explanation of the accused reasonably possibly true. PW2 testified that he agreed with the accused to catch or apprehend the deceased. They chased the deceased until he got at Khofotsa’s place. PW2 stated further that he threw stones at the deceased. While the deceased did not get help at Khofotsa’s place, they pursued the deceased downwards towards the cliff or the stream. He testified that the deceased was in front, as he was being chased by the accused who was hot on his heels, and that the accused and the deceased outrun him. He testified that he saw the deceased running down the cliff followed by the accused who was right on his heels. The accused also ran down the cliff. He stated that after some time the accused emerged from down the cliff and he observed that the accused was holding a knife and both the knife, and the accused’s hands were covered with blood. Then one Tinare joined them and later went down the cliff to look at the deceased. [25] On the other hand the accused version is that they chased the deceased until he reached Khofotsa’s place. He stated that he remained outside Khofotsa’place while PW2 and Maseisane kept on chasing the deceased. He testified that the deceased went to him, picked up a stone and hit him with the stone and he fell. He further testified that the deceased attacked him with the stick, and in self- defence he stabbed the deceased with a knife on the left arm. If the accused’s version was correct, the deceased would have sustained a stab wound on the left arm, but the post-mortem report does not show that the deceased sustained any wound on the left arm or the left side of the body. This goes a long way showing that the accused’s version of self-defence is false. The post-mortem report shows all the stab wounds are on the chest. Accused stated that after defending himself against the deceased, he went back to the shop. Accused denied ever chasing the deceased downwards towards the cliff. He further denied that he chased the deceased down the cliff. He further denied that when he emerged from the cliff, his knife and hands were covered with blood. [26] Paseka Roboro- DW2 testified that he heard someone asking for help at Khofotsa’s place and that there were footsteps of people running at Khofotsa’s place. Then he heard footsteps of people running downwards toward the cliff or the stream. He stated that the accused arrived at the shop. [27] With regard to the two opposing versions, namely that of the crown and that of the accused, it would be beneficial to adopt the approach favoured by Tebbut J. in S v Jaffer6 et seq that: “The story may be so improbable that it cannot reasonably be true. It is not, however, the correct approach in a criminal case to weigh up the State’s version…, against the version of the accused and then to accept or reject one or the other on the probabilities”. [28] In S v Munyai7, Van de Spuy said: “There is no room for balancing the two versions, i.e., the State’s case against the accused’s case and to act on preponderances”. At 716 Van de Spuy said: “The fact that the court looks at the probabilities of a case to determine whether an accused’s version is reasonably possibly true is something which is permissible. If on all the probabilities the version made by the accused is so improbable that it cannot be supposed to be the truth, then it is inherently false and should be rejected.” Van de Spuy at 715 said: “In other words, even if the state case stood as a completely acceptable and unshaken edifice, a court must investigate the defence case with a view 6 1988 (2) SA 84 at 88 7 1986 (4) SA 712 at 715 to discerning whether it is demonstrably false or inherently so improbable as to be rejected as false”. [29] DW1 stated in his examination in chief that PW2 later arrived at the shop holding the knife, after having chased the deceased. I should from the onset say that this version was never put to PW2 during cross-examination. I hold a view that it was not put to PW2 because it was an afterthought. [30] Under cross-examination, DW1 stated that while the deceased was being chased, he said that he (DW1) was running in front of the deceased and the deceased was following him. I wish to mention that PW2 stated that himself and the accused agreed to catch the deceased. However, the accused denied that he agreed to chase the deceased with PW2. Surprisingly, in his own words, the accused said that they chased the deceased until he reached Khofotsa’s place. The accused said he did not enter Khofotsa’s yard. What is crystal clear is that the accused chased the deceased with PW2. What is surprising is, how could the person chasing the other be in front, and the person being chased be following the one chasing him. It does not make sense at all. I hold a view that the accused is not telling the truth that he was in front of the deceased, whom he was chasing. Naturally, the person being pursued would obviously be in the front. I believe PW2’s version that the accused was right behind the deceased, while PW2 was behind the accused. [31] The accused said that when the deceased got at Khofotsa’s place, he remained outside the yard. DW2 stated that he heard voices of people at Khofotsa’s place, and that someone was asking for help. The accused contended that the deceased hit him with the stone, and he fell. When he stood up the deceased attacked him with the stick, and it was at that stage that he stabbed the deceased with the knife. I am of the view that when the deceased did not get any help at Khofotsa’s place, the deceased resorted to running further downwards towards the cliff or the stream. I do not find that the deceased in the manner that he was being pursued would have time to pick up a stone, hit the accused who was outside the yard, and then attack the accused with the stick. I hold a strong view that all the deceased was looking for was help and would not attack the accused who was outside Khofotsa’s yard and not posing any danger to him. I find it highly improbable that the deceased would have attacked the accused in those circumstances. I find the accused version in this regard as not reasonably possibly true, therefore is rejected as false. This court is further taking cognisance of the cross-examination of PW1. It was put to PW1 that DW2 was going to show that there were people who attacked the deceased at Khofotsa’s place. That the deceased was shouting for help. It was further put to PW1 that DW2 would show that those people chased the deceased downwards towards the stream. Having considered cross-examination of PW1 and the evidence of PW2, I conclude that the people who were chasing the deceased were the accused and PW2. [32] DW2 stated that he heard footsteps of people running downwards towards the direction of the stream. PW2 also stated that from Khofotsa’s house, the deceased ran downwards towards the cliff or the stream, and that the accused was right on his heels until the deceased ran down into the cliff followed by the accused. PW2 testified that he also pursued the deceased, though both the deceased and the accused outran him. I have already found that the accused and PW2 chased the deceased downwards towards the stream, from Khofotsa’s place. I am of the view that the voices that DW2 heard at Khofotsa’s place, were those of the accused, PW2 and the deceased. The footsteps that DW2 heard at Khofotsa’s place were those of the accused, the deceased and PW2. The Person whom DW2 heard seeking for help was the deceased, and this fact is corroborated by both PW2 and the accused. However, I do not believe DW2’s evidence that at the time he heard people running downwards towards the cliff, the accused person was at the shop. I do believe that at one point the accused arrived at the shop, but it was not at the material time that DW2 said the accused arrived at the shop. [33] I am mindful of the fact that under cross-examination, it was never put to PW2 that Maseisane is the one who chased the deceased downwards towards the stream. However, during cross-examination of PW1, it was suggested to PW1 that Maseisane chased the deceased downwards to the stream. However, the defence failed to put this critical version to PW2, who was involved in the chasing of the deceased. I hold a strong view that this version was deliberately not put to PW2, to deny the court the reaction of PW2 to the accused’s version. I hold a view that this was never put to PW2 because it was an afterthought. The court has referred to the case of Phaloane v Rex8, where Maisels P. as he then was stated that, it is generally accepted that the function of counsel is to put the defence case to the crown witnesses, not only to avoid the suspicion that the defence is fabricating, but to provide the witnesses with the opportunity of denying or confirming the case for the accused. Moreover, even making allowance for certain latitude that may be afforded in criminal cases for a failure to put the defence case to the crown witnesses, it is important for the defence to put its case to the prosecution witnesses as the trial court is entitled to see and hear the reaction of the witnesses to every important allegation. [34] Under cross-examination, it was never put to PW2 that after chasing the deceased, he arrived at the shop after about four minutes. I further hold a view that this version was never put to PW2 because it was an afterthought. [35] Coming back to the issue of the chasing of the deceased. PW2 stated that he threw stones at the deceased at Khofotsa’s place, but as they pursued the deceased, he stopped throwing stones because the accused was in front of him and was cautious that he might hit him with the stones. I believe the evidence of 8 1981 (2) LLR at 246 PW2 that the accused was in the middle as the deceased was in front being chased. I have already rejected the accused’s version, that he was in front of the deceased, while the person who was being chased was the deceased. I find that PW2 is a reliable witness, more so when PW2 did not conceal his participation in pursuit of the deceased. [36] DW1 testified that the cliff that the deceased ran into was very deep, rocky, with sharp stones and gravel stones. It was agreed by both the defence and the crown, after the demonstration by the witness, that the cliff could be estimated to be about four (4) metres deep. The defence attempted to persuade the court, that the deceased could possibly have died due to falling down the cliff. The post- mortem report shows that the deceased sustained multiple chest stabs, neck slaughtered, bruises and lacerations in both hands. Surely if the cliff is as deep as described by the defence, the deceased could have sustained injuries such as broken bones and other serious injuries. I therefore hold a view that the deceased ran down into the cliff, and he did not fall into the cliff, as suggested by the defence. I hold a strong view that in the same manner, the accused ran into the cliff right behind the deceased. [37] Under cross-examination, it was suggested to both PW1 and PW2, that the accused stabbed the deceased with the knife on the left arm in self-defence. I reject the accused’s version of self-defence as not reasonably possibly true, since both PW2 and the accused, were the ones attacking the deceased. It should be remembered that accused and PW2 had agreed to catch or apprehend the deceased. That is why they chased him until he got to Khofotsa’s place. It was further put to PW2 during cross-examination, that DW2 was going to show that there were people who attacked the deceased, while he was at Khofotsa’s place. I therefore reject the accused’s version of self-defence as false. [38] I have already opined that the Crown’s case is based on circumstantial evidence. I further conclude that PW2 is a reliable and credible witness. The deceased died due to neck slaughtered hemopneumothorax. I conclude that from the following proven facts, the inference I am drawing is that the deceased was killed by the accused. (1) The accused and PW2 agreed to catch the deceased. (2) The deceased ran away, and they pursued him, until he reached Khofotsa’s house. (3) The deceased did not get any help at Khofotsa’s place. He then ran downwards towards the cliff or the stream. (4) Both the accused and PW2 pursued him further, until he reached the cliff and ran down into the cliff. (5) The accused followed the deceased down into the cliff, and later came up from down the cliff. (6) The accused was holding a knife that was bloody and so were his hands, as he appeared from the cliff. (7) The deceased sustained multiple chest stabs and neck slaughtered. (8) The nature of the injuries sustained by the deceased are consistent with the sharp object, such as the knife, having been used to inflict them. (9) The accused testified that he was armed with a knife on that day. (9) Blood was found in the water around the deceased. [39] The next question to be determined is whether the above proven facts are such that they exclude the inference that the accused slaughtered the neck of the deceased. In my view the proved facts exclude the inference that someone else cut the deceased’s neck and stabbed the deceased. There is iota of evidence that the accused chased the deceased from the shop to Khofotsa’s house, and from the house downwards towards the cliff. This court believes the evidence of PW2 that the accused appeared from the cliff, holding the bloody knife and his hands were covered with blood. This court rejects the accused’s version that he stood outside Khofotsa’s yard, and that the deceased attacked the accused with the stick, entitling the accused to defend himself, as not reasonably possibly true, because the deceased was being chased by both PW2 and the accused. When the deceased did not get help at Khofotsa’s place, he resorted to running further downwards towards the cliff, where the accused caught up with him and attacked him. It is for this reason that this court rejects the accused’s version. [40] Having dealt with the totality of the evidence presented by both the crown and the defence, together with the probabilities and improbabilities of each version, I conclude as follows. 1. The accused is found guilty of murder with dolus directus. My Assessors Agree. EXTENUATION [41] Section 296 (1) of the Criminal Procedure and Evidence Act 1981, provides that, where the High Court convicts a person of murder, it shall state whether in its opinion there are extenuating circumstances and if it is of the opinion that there are such circumstances, it may specify them. Section 296 (2) provides that in deciding whether or not there are any extenuating circumstances, the High Court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the accused belongs. [42] In the case of Lefaso v Rex9, Schutz P. explained extenuating circumstances as follows: 9 LAC 1990 – 1994 44 “…Extenuating circumstances are such as reduce the moral, if not the legal guilt of the accused. The onus of proving them on a balance of probability rests on the accused10”. [43] In Letuka v Rex11, Steyn P. stated that extenuating circumstances are any facts associated with the commission of the crime, whose effect in the minds of reasonable persons is to reduce the moral blameworthiness of the accused, as distinct from the accused’s legal culpability12. [44] The Court of Appeal in the Letuka case (supra) stated that there is ample authority for the proposition that the subjective state of mind of the accused is certainly one factor which can be taken into account in determining whether extenuating circumstances are present. Moreover, it is one that stretches to each and every factor which may throw light on what went on in the accused’s mind. See S V Mafela13 and S v Petrus14. [45] The Court of Appeal in the Letuka case (supra) stated further that, each factor may individually have little weight taken cumulatively however, they may well tip the scale in an accused’s favour when evaluated against the aggravating features. Factors which can be considered include the following; youth, liquor, emotional conflict, the nature of the motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part on the commission of the murder, absence of dolus directus (See S V Ngobeni15, Mohlalisi and Others v Rex16 ), belief in witchcraft, absence of premeditation or planning, heavy confrontation between an accused and the deceased before murder, rage of an accused ( See S v Prins17). 10 LAC 1990 – 1994 at P. 49 11 LAC 1995 – 1999 405 12 LAC 1995 - 1999 at P. 405 13 1980 (3) SA 825 (A) 14 1969 (4) SA 85 (A) 15 1992 (1) SACR 628 (C) 16 LAC (1980 – 1984) 110 at 117 17 1990 (1) SACR 426 (A) [46] In the Letuka case (supra) Steyn P. went further to say: “It is trite that mere presence of one of these features do not axiomatically mean that they are extenuating in relation to the commission of the crime in casu. Each factor must be weighed and assessed in the light of the evidence as a whole and its relevance to the conduct and the state of mind of the accused, as well as cumulatively with any other factor associated with the commission of the offence18”. [47] Applying the principles enunciated in the Letuka case (supra), this court finds that the following extenuating circumstances exist in favour of the accused in this matter, to wit: at the time of the commission of this offence the accused was a youth of twenty-two (22) years of age, he has a rural background, and the accused is completely illiterate. SENTENCING [48] In the case of Scout v Rex19, the Court of Appeal stated that sentence is pre- eminently a matter in the discretion of the trial court and that interference with a sentence is only justified on limited grounds. It is in the interest of society that people convicted of murder be put away for a long time. None the less, a sentence for murder must be individually tailored to the facts of each case. Thus, some cases call for heavier sentences than others20. [49] In the case of Rex v Tumelo Manesa21, Majara J, as she then was, when dealing with mitigating factors for sentence, had this to say: "I now proceed to consider the factors that were pleaded on the accused’s behalf in mitigation of his sentence to wit: that he is a first offender, he 18 LAC 1995 – 1999 at P 423 19 LAC 2009 – 2010 279 20 LAC 2009 – 2010 at P 289 21 CRI/S/4/10 [2011] LSHC 45 (31 March 2011) showed remorse by pleading guilty to the charge and thus saving court’s time, he is uneducated thus his distinction between right and wrong differs from that of a more educated person. I do accept that all these should count in the accused’s favour. However, as I have stated, I also have to strike a proper balance between those factors and others such as the nature of the offence, the interests of the victim and those of society at large. Further, it is my view that it does not take education for one to know that use of force and violence against other human beings is a terrible and unjustifiable thing. I have already stated that every member of society looks up to the courts for the protection of the vulnerable and censure and punish crime. I most certainly have the duty to fiercely guard and promote the rule of law, not to mention winning back the confidence of the public in the criminal justice system, which has steadily been eroded over time”. [50] In the case of Rex v Ranthithi and Another22, Ramodibedi JA, as he then was, stated that in determining a proper sentence, it is necessary to have regard to the trial consisting of the offence, the offender, and the interests of society. See S v Zinn23. As regards the consideration relating to the crime committed, there can be no doubt that murder is a very serious offence. This court believes in the sanctity of human life. It is in the interests of society that people convicted of murder be put away for a long time. This is so in order to protect society itself against such people. There must also be a distinction drawn between sentence for murder and sentence for culpable homicide. Regarding the personal circumstances of the accused, the following factors must be considered; accused is the first offender, accused is unsophisticated, tribesman from the rural area, by pleading guilty. 22 LAC 2007-2008 245 231969 (2) SA 537 (A) [51] On mitigation of sentence, Adv. Chondile, counsel for the accused submitted that the accused is the first offender, he is 27 years old, he just got married and his wife is unemployed, he has a child aged three years, who needs his support, he is the sole bread winner for his family, and that the accused came to court every time when he was directed to do so. [52] On aggravation of sentence, Adv. Mapesela counsel for the crown, submitted that the accused committed a heinous act, therefore the court must impose a severe sentence on him, to deter others from taking the law into their own hands. [53] I now proceed to consider factors that were pleaded on the behalf of the accused in mitigation of his sentence to wit; that he is the first offender, and this means that he is a person who is not prone to offending against the law. I have considered that the accused’s actions were more than anything motivated by his youth and immaturity. He was a young man aged twenty-two (22) years at the commission of this offence. He is currently aged twenty- seven years, he is married with a three-year-old child, who needs his fatherly love and his financial support, he is the sole bread winner for his family. I have considered that at all material times, when the accused was directed to appear before court, he would do so without failure. This factor indicates that the accused has respect for the courts of law. I have had the occasion to observe the demeanour of the accused during trial, I formed an opinion that the accused is remorseful of his actions. I accept that all these factors favour the accused person. However, this court must strike a balance between these factors and others such as the nature of the offence, the interests of the victim and those of society at large, prevalence of the kind of crime which the accused has committed either throughout the country and or within a specified or limited area, the restitution undertaken by a wrongdoer, remorse shown by a wrongdoer and of course some other related circumstances. [54] On the other hand the court has considered the following aggravating factors to wit; that the deceased was a young man of 26 years, when he met his death. The deceased had a long life ahead of him. I have considered that the deceased’s neck had been slaughtered, and this means the accused committed a heinous act. I have further considered that the killing of the deceased was accordingly planned. The sentence to be imposed by this court should deter other people from committing similar offence as the accused and the sentence to be imposed by this court should restore the society’s confidence in the courts of law. [55] This court has further considered the fact that murder is a serious offence, and the sentence that this court should impose must reflect the seriousness of this offence. This court believes in the sanctity of human life. This court must send a strong message to the accused and others who think like him, that resort to violence cannot go unpunished. The court has taken into consideration that murder is prevalent in this country, and this court should demonstrate in its sentence that society at large should be protected against such people, and those who commit murder should be put away for a long time, to protect members of society from such people. [56] I have concluded that the most appropriate sentence that will fit this crime, the offender, and the interests of society in these circumstances is the following. ORDER 1. The accused is sentenced to twenty (20) years imprisonment. My assessors agree. DISPOSAL ORDER 1. In terms of section 56 (1) (c) of Criminal Procedure and Evidence Act 1981, the exhibit to wit: the knife is forfeited to the crown, and it should be destroyed. ____________________ T. J. MOKOKO JUDGE FOR THE CROWN: ADV. M. MAPESELA FOR THE ACCUSED: ADV. W. CHONDILE 25