Litsoene Makhamisa V Director of Public Prosecution (C of A (CRI) 2/2025) [2025] LSCA 76 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CRI) No.2/2025 CRI/T/0029/2022/ND In the matter between: LITSOENE MAKHAMISA APPELLANT And DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT IN RE: REX V LITSOENE MAKHAMISA CORAM: MOSITO P MUSONDA AJA MATHABA AJA HEARD: 9 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Criminal Law – Murder – Causation – Whether the chain of causation was broken – Role of medical versus eyewitness evidence – Extenuating circumstances – Sentence. Evidence – Evaluation of conflicting testimony – Preference of credible direct evidence over inconclusive expert opinion – Medical evidence not conclusive but advisory – Court entitled to rely on credible eyewitnesses where consistent with other evidence. Appellate Review – Limited interference with findings of fact – Appellate court slow to disturb trial court’s assessment of credibility unless findings are plainly wrong or vitiated by misdirection. Practice and Procedure – Substitution of lesser offence – Arson reduced to unlawful damage to property under section 198 of the Criminal Procedure and Evidence Act – No prejudice to accused where essential elements of the lesser offence are included in the greater. Sentence – Discretion of trial court – Appellate intervention only where sentence induces a sense of shock or is vitiated by misdirection – 25-year term for brutal, unprovoked killing of defenceless spouse not excessive. Held: 1. A trial judge is not bound by expert medical opinion when it conflicts with credible eyewitness testimony, provided sound reasons exist for preferring the latter. 2. The unbroken sequence from stabbing to death excluded any novus actus interveniens; the chain of causation remained intact. 3. The offences of arson and unlawful damage to property are cognate; the substitution occasioned no prejudice. 4. The learned judge correctly exercised sentencing discretion, balancing mitigation against the brutality and deliberation of the act. 5. No misdirection or miscarriage of justice shown. Result: Appeal against both convictions and sentences dismissed; concurrent sentences of 25 years for murder and 1 year for unlawful damage to property confirmed; the okapi knife forfeited to the State. JUDGMENT MUSONDA AJA INTRODUCTION [1] This appeal arises from the judgment of the High Court (Mokhoro J), in which the appellant was convicted of the murder of his wife, and of unlawful damage to property, and sentenced to 25 years’ imprisonment for the former and one year for the latter, the sentences to run concurrently. The learned judge found extenuating circumstances in relation to the murder and ordered the forfeiture of the weapon — an okapi knife — to the State. [2] The appellant had been charged on two counts: first, with the murder of his wife, contrary to section 40(1), as read with section 40(2), of the Penal Code Act No. 6 of 2010; and secondly, with arson, contrary to section 73 as read with section 109 of the same Act. He pleaded not guilty to both counts. [3] The case concerned a domestic tragedy that occurred on 21 May 2018 at Likileng, Butha-Buthe. The deceased, a nurse and matron at Likileng English Medium School, was found fatally wounded following an altercation with the appellant, her husband. Background: [4] The prosecution called twelve witnesses. The evidence of PW1 and PW5, both eye-witnesses, formed the core of the case. They testified that the appellant entered PW1’s room, where the deceased was attending to two students, and stabbed her twice in the back with an okapi knife. She fled and was later found lying face down in the washroom, bleeding profusely. Despite efforts to convey her to the hospital, she succumbed to her injuries. [5] PW9, a police officer, confirmed observing two deep stab wounds on the back of the deceased’s body at the mortuary. PW10, the arresting officer, testified that the appellant voluntarily admitted having stabbed his wife and led him to the recovery of the knife. PW12, the appellant’s uncle, corroborated this confession and produced the same knife — a brown-handled okapi with three stars — which the appellant had earlier entrusted to him. The appellant elected to remain silent at the close of the Crown’s case, notwithstanding his earlier indication that he would call three witnesses. That was his constitutional right. Proceedings in the High Court [6] The learned trial judge found as a fact that the appellant had used the okapi knife (Exhibit LMPS 12) to inflict the fatal injuries upon his wife. The evidence, she held, demonstrated a clear intent to kill. The appellant had come armed to the school premises and circumvented security measures that had been established precisely to protect the deceased from him. The court rejected the defence contention that a subsequent wound on the chest, allegedly inflicted during medical intervention, constituted a novus actus interveniens, breaking the causal chain between the stabbing and the death. The learned judge reasoned, upon the authority of Tsomela v Rex1 and Rex v Tanono2, that where credible eye-witnesses testify to the act causing death, the absence or inconclusiveness of medical evidence does not preclude a finding of causation. The court therefore preferred the consistent testimony of the eye-witnesses, all of whom described the wounds as being at the back, over a post-mortem report which suggested otherwise. The judge concluded that the chain of causation was unbroken. [7] Having rejected the defences of provocation, self-defence and intervening cause, the learned judge found the appellant guilty of murder. On the second count, the charge of arson was reduced, in terms of section 198 of the Criminal Procedure and Evidence Act, to the lesser offence of unlawful damage to property — a kindred offence supported by the evidence — and a conviction was entered accordingly. The judge, taking account of extenuating circumstances but also of the brutal nature of the killing, imposed the sentences already mentioned. The Appeal [8] The appellant challenges both his convictions and the sentences imposed upon him. In essence, he contends that the learned trial judge erred in concluding that he possessed the intention or premeditation necessary to sustain a murder conviction; that the evidence before the court did not justify a 1 (1974-75) LLR 97 2 1997 LSHC 21 14TH February 1997 finding of guilt for malicious or unlawful damage to property; that the judge wrongly disregarded the medical evidence—especially the alleged wound to the chest—and thereby failed to recognise the possibility of a novus actus interveniens breaking the chain of causation; and finally, that the sentence of twenty-five years’ imprisonment was unduly severe and such as to evoke a sense of shock. [9] Appearing for the appellant, Advocate Taaso mounted a vigorous challenge to the trial court’s factual conclusions, describing them as fundamentally misconceived. He advanced a narrative in which the deceased was said to have provoked the appellant during a visit undertaken merely to retrieve his passport. According to this account, PW1 intervened, struck the appellant, and, in the ensuing struggle over a knife, the deceased was accidentally injured. [10] On that version of events, counsel argued that the appellant’s actions were the product of provocation or self-defence, or that in any event the causal link between his conduct and the deceased’s death had been interrupted by an intervening medical act. Reliance was placed on the post-mortem report, which, counsel maintained, the learned judge had wrongly disregarded in favour of the testimony of lay witnesses. He cited Lepota Natsoane v Rex3 and other authorities in support of this submission. [11] Advocate Taaso further submitted that the conviction for unlawful damage to property was unsustainable, asserting that the Crown had failed to prove that the appellant had intentionally 3 (2023) LSHC 69 (19TH April 2023) set fire to any immovable property. Finally, he contended that the sentence imposed was manifestly excessive, observing that the appellant had voluntarily surrendered to the police, was a father with dependent children, and had attended his trial with diligence and good faith. [12] For the Crown, Advocate Lepheana contended that the appellant’s guilt had been established beyond a reasonable doubt. He drew the Court’s attention to the fact that, only a week before the fatal incident, the appellant had been involved in an altercation with the security guard at the same school. Despite that prior confrontation, the appellant returned to the premises armed with a knife and, without provocation, stabbed the deceased twice in the back. The testimony of the Crown witnesses, he submitted, was consistent and mutually corroborative, leaving no room for the suggestion that the appellant had acted in self-defence or that the stabbing had occurred accidentally. [13] With respect to causation, counsel argued that the evidence demonstrated a continuous and unbroken sequence of events — beginning with the stabbing, followed by profuse bleeding, and culminating in the deceased’s death — thereby excluding the possibility of any intervening act. He maintained that the post- mortem report, being at odds with the clear and credible eye- witness accounts, was properly rejected by the trial judge. Issues for Determination [14] The appeal presents five principal questions for determination. The first is whether there exists any proper basis upon which this Court might disturb the trial court’s findings of fact. The second concerns whether the learned judge erred in law or reasoning by preferring the testimony of the eye-witnesses to the medical evidence contained in the post-mortem report. The third issue is whether the causal chain linking the appellant’s conduct to the deceased’s death was interrupted by any intervening act. The fourth calls for consideration of whether the conviction for unlawful damage to property was properly sustainable on the evidence. The final issue is whether the sentence imposed was so severe as to be manifestly excessive. Applicable Principles [15] The principles governing appellate intervention are well settled in the jurisprudence of this Court and throughout the Commonwealth. An appellate tribunal must exercise great restraint before disturbing findings of fact that rest upon the trial judge’s assessment of the demeanour and credibility of witnesses. Such findings will not be overturned unless they are plainly wrong, lack evidential support, or are tainted by a material misdirection. [16] This Court has consistently reiterated that interference is justified only where the trial judge has materially misdirected herself, has disregarded evidence that ought to have been considered, or has reached conclusions so unreasonable as to be incapable of standing scrutiny. [17] Equally, while expert medical opinion may be of substantial assistance to the court, it does not bind the judge. Its role is advisory, not determinative. The ultimate responsibility for finding facts rests squarely with the court, which may, on rational and cogent grounds, prefer the credible direct testimony of witnesses to an expert’s opinion. That principle was reaffirmed in R v Thabo4. [18] As regards the sentence, the law is no less clear. The imposition of punishment lies primarily within the discretion of the trial court. An appellate court may intervene only where that discretion has been improperly exercised — whether through misdirection, failure to consider relevant factors, or the imposition of a sentence so disproportionate as to induce a sense of shock, as articulated in Letuka v Rex5 and S v Rabie6. Consideration [19] The evidence presented before the High Court was, by any standard, compelling. Two disinterested eye-witnesses testified that they saw the appellant stab the deceased twice in the back. The deceased attempted to flee but was soon discovered bleeding profusely and died shortly thereafter. The appellant subsequently made voluntary confessions—first to his uncle (PW12) and later to the arresting officer (PW10)—and there was no suggestion that either statement had been obtained through coercion or inducement. The knife used in the attack was recovered and positively identified. [20] In the face of this evidence, the claim of self-defence is wholly untenable. The deceased was unarmed; the assault was unprovoked; and the number and location of the wounds leave no room for accident. Nor does the record contain any basis for suggesting the presence of a novus actus interveniens, for the 4 (1954) 1 All ER 373 (PC) (Single transaction doctrine) 5 2000- 2004 LAC 143 6 1975 (4) SA 855 (A) deceased’s death followed directly and foreseeably from the stabbing. [21] The learned trial judge was therefore fully justified in preferring the consistent and credible accounts of the eye- witnesses to the post-mortem report, whose conclusions were both inconsistent with the surrounding evidence and unsupported by logic. That evaluative choice was entirely consonant with established legal principle. There was no misdirection on fact or law, and the findings of guilt on both charges are beyond reproach. [22] Concerning the substitution of the offence of unlawful damage to property for that of arson, the two offences are closely related in nature and elements. The essential ingredients of the lesser offence were contained within the greater, and the appellant was not prejudiced in the presentation of his defence. [23] As to the sentence, the learned judge manifestly exercised her discretion with care. She balanced the mitigating considerations— among them the appellant’s voluntary surrender, his parental obligations, and his cooperation during trial—against the gravity of the offence, which involved a calculated and brutal attack on a defenceless woman at a location where the appellant’s presence was expressly restricted. Having undertaken that exercise, the court imposed a sentence proportionate to both the conduct and its consequences. In the view of this Court, the punishment neither betrays misdirection nor provokes any sense of shock. Deposition [25] In light of the evidence and the applicable principles of appellate review, this Court is satisfied that the appeal discloses no basis for interference with either the findings of fact or the exercise of discretion by the learned trial judge. The record reveals overwhelming and credible evidence establishing the appellant’s guilt beyond reasonable doubt. The testimonies of impartial eye- witnesses were coherent, mutually corroborative, and consistent with the appellant’s own voluntary confessions. The medical evidence, to the extent that it diverged from those accounts, was properly regarded as inconclusive and did not undermine the chain of causation. [26] The appellant’s claims of provocation, self-defence, and novus actus interveniens are wholly inconsistent with the proven facts. The deceased was unarmed and defenceless, and the attack upon her was both deliberate and sustained. There is no suggestion that any intervening act occurred between the stabbing and the death that could have broken the chain of causation. The trial judge’s preference for the eye-witness accounts over the post-mortem report was justified in both logic and law. [27] As to the substitution of the offence of unlawful damage to property for that of arson, this Court finds no misdirection. The two offences are cognate; the essential elements of the lesser were contained within the greater; and the appellant suffered no prejudice in his defence. [28] Regarding sentence, the Court is equally unpersuaded that any interference is warranted. The learned judge properly considered the triad of sentencing factors — the nature of the offence, the personal circumstances of the offender, and the interests of society — and exercised her discretion with care. The mitigating factors relied upon by the appellant were weighed but could not diminish the gravity of the offence, which involved a callous and unprovoked killing committed at a place where the appellant’s presence was restricted. [29] The sentence of twenty-five years’ imprisonment for murder and one year for unlawful damage to property, to run concurrently, reflects a balanced response to both the enormity of the crime and the limited mitigation advanced. This Court accordingly concludes that there has been neither misdirection nor excess, and that the convictions and sentences must stand. Order [30] It is accordingly ordered that— [a] The appeal against the conviction and sentence for murder is dismissed. [b] The appeal against the conviction and sentence for unlawful damage to property is likewise dismissed. [c] The sentences imposed by the High Court shall stand and shall continue to run concurrently as ordered. [d] The okapi knife (Exhibit LMPS 12) shall remain forfeited to the State. _______________________ P. MUSONDA ACTING JUSTICE OF APPEAL _________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree I agree _________________________ A. R. MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV. S. T. TAASO FOR THE RESPONDENT: ADV. T. LEPHEANA