Rex V Natsoane (CRI/T/0015/2021) [2023] LSHC 69 (19 April 2023)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CRI/T/0015/2021 In the matter between REX AND LEPOTA NATSOANE ACCUSED Neutral Citation: Rex v Lepota Natsoane [2021] LSHC 69 Cri (19th April 2023) CORAM HEARD DELIVERED : : : HLAELE J. 13th FEBRUARY 2023 19TH APRIL 2023 SUMMARY: Conviction based solely on circumstantial evidence. What should the court take into consideration. The effect of the accused’s failure to give evidence. ANNOTATIONS: CITED CASES: 1. R v Qhelane and Others (CRI/T/15/86) (CRI/T/15/86) [1989] LSCA 92 (09 August 1989). 2. 3. 4. 5. 6. 7. 8. R v Nkosi (CRI\T\11\91) [1992] LSCA 44 (04 March 1992). R v Dickman Newcastle Summer Assizes, 1910 - referred to in Wills on Circumstantial Evidence 7th ed at 46 and 452-60). R v Felemane (CRI/T/20/82 [1983) LSCA 85 (19 September) Nkhesoa Pelea and Another v Rex (C OF A (CRI) 1/10) [2013] LSCA11 (19 April 2013). S v Reddy and others 1996(2) SACR 1 (a) at 8C-D. S v Ntsele (CCT25/97) [1997] ZACC 14;(11) BCLR 1543(14 October 1997). R v Blom 1939 AD 188. 9. R v Acres International Limited Ruling at Close of Crown Case Cri/T/2/2002)LSCA 60(18 April 2002). 10. R v Mtembu 1950 (1) SA 670 (A). 11. R v Matankole (CRI/T/5/80) [1980] LSHC 35 (16 May 1980) 12. S v. Mini, 1963 (3) S.a. 188 (a) at p. 195H - 196F). 13. S v Nkuna 2012 (1) SACR 167 (B). 14. R V Khoza 1982(3) SA 1910. 15. Rex v. Ntoi. CRI/T/39/77. 16. S. v. Theron 1968 (4) S. A. 61 at pp 63 – 64. 17. S v. Letsoko and Others, 1964 (4) S. A. 768 (A. D.) at p. 776 C-E). 18. S vs Khomo & Ors 1975(1) SA 344 at 345. 19. R v Mphahama (2) (CRI/T/46/2010) [2011] LSHC74(13July 2011). 20. R v Moleleki (CRI/T/10/80) [1980] LSHC 61 (14 November 1980). 21. S v Zinn 1969(2) SA 537 (A) at 540GCASE NUMBER: CC 145/20 22. S v Rabie 1975 (4) SA 855 (AD) at 862G-H. 23. Fielies v S (851/2013) [2014] ZASCA 191. 24. S vs Kumalo 1973 SA 697 [A]. 25. S v Mhlakaza and Another(386/96) [1997]ZASCA7;[1997]2AllSA 185 (A) 26. S v Mandlozi 2015 (2) SACR 258 (FB). STATEUS 1. South African Law Report 1964 2. Criminal Procedure and Evidence Act,1981 BOOKS 1. Hoffman Zeffertt. The South African Law of Evidence. 1st Edition. JUDGEMENT HLAELE J [1] INTRODUCTION 1.1 The accused in this case is charged with the crime of murder and the same is articulated in the charge sheet as follows; “In that on or about the 21st day of May,2021 and at or near Ntlholohetsane in the district of Mokhotlong, the said accused did perform an unlawful act or omission with the intention of causing the offence of Murder of the deceased ‘Malehasa Natsoane such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid”. PLEA. 1.2 The accused pleaded not guilty to the charge as a result of which, in terms of the rules of procedure, the crown had to lead evidence to prove the charge. The scale to prove the guilt or otherwise of the accused is proof beyond reasonable doubt. The crown called the following witnesses whose evidence is analyzed and appears below. [2] THE EVIDENCE OF THE CROWN WITNESSES 2.1 PW1 was Likeleli Natsoane whose evidence was as follows; That she is the accused’s younger sister who stays in the same village as the accused. She testified that in the morning of the 21st May 2021at around 04:45 AM, she was called by her elder sister Makanetso (PW7) informing her that the accused needed help at the place called Ntlholohetsane. She then left her house to Ntlholohetsane together with one Moeketsi (DW1) and one Moculu who are her brothers. As they passed by the accused and deceased’s house, she proceeded to the house to check on and prepare the children for school. Upon her arrival, she noticed the deceased’s vehicle outside which contained a lot of clothes. In the accused and deceased’s bedroom, she observed a broken lamp and a headboard drawer handle which was also broken. She testified further that on her way out they met accused outside. The accused’s shirt and trouser had blood on them. 2.1.1 It was then that the accused offered an explanation of what he alleged had happened. The accused then told this witness that the deceased had arrived around 04:00am that morning. She had arrived home in a vehicle which he could not identify due to the brightness of its lights. He alleged that she was drunk when she arrived. He then told her to pack her clothes and go to her maiden home. Thereafter he told her to take him where she came from. More so because he continued to inform her that it was during this time that they had an altercation. He then said he was tired and wanted to rest. He instructed her to prepare his children for school. 2.1.2 Asked where the deceased was, he said he had just left her at the hospital. This witness later on that day went to the Hospital whereupon she heard of the deceased’s passing. 2.1.3 She also conceded under cross-examination that she cannot state with certainty that the lamp and headboard drawer were broken as a result of altercation. Again, under cross examination she testified that the clothes of the accused were soiled (had sand stains) “bo ne bo le mobu.”. she provided the place where the deceased was allegedly last seen alive was rocky but had sand. According to her, if a person fell she would sustain injuries. 2.2 PW2 was Boikano Matjeane. He told this court that he is a Nurse by profession. 2.2.1 He is also the accused’s friend. In the morning of the 21st May 2021 around 06:00 am, the accused called him on the phone and told him to help his wife who had sustained a wound on the head. Since this witness was not at work and duty at that time, he called one Motloli who was on duty to expect the deceased. The witness also rushed to the hospital. Upon his arrival he noticed that the deceased had not arrived. She only arrived about 15 minutes later in the company of the accused, one man and one woman who were holding the deceased by her hands on both sides as she was unable to walk on her own and her face was swollen. Her injuries included a wound at the back of the head. The witness testified further that deceased was laid on the bed and whilst there she seemed to hallucinate, and she then fell on the floor on her buttocks. 2.2.2 He testified that he asked accused what had happened. The accused told him that the deceased had fallen when running towards Ha- Letjane. He also explained that the deceased had arrived at 04:00 am and they had had an altercation as a result of that. Later-on that day, this witness heard of the passing of the deceased. 2.2.3 The cross examination of this witness concentrated mostly on seeking the explanation of the reason the deceased could have fallen off the bed whilst she was being attended by the medical staff, this witness was non-committal about this. His response was “I cannot testify to that.” 2.3 PW3 was No. 70531 Detective Lance Seargent Lesuoa. 2.3.1 He was one of the lead investigators of this case. His evidence was to the effect that on the 21st May 2021 at around 16:30pm the accused arrived at the police station at Mokhotlong where this witness was on duty. The accused reported that he had an altercation with his wife whereupon he beat her and his wife fled and fell at the gate of their homestead. However, under cross- examination this witness admitted that the accused did not say he beat his wife but rather that he said he and his wife were fighting. Supposedly physically. 2.3.2 This witness went on to testify that he and two other police officers proceeded to the gate where accused had told them the deceased had sustained the fatal injury at. As he and the other two (2) police officers examined that place, they observed that there was nothing there which could have injured a person. He described the place where the deceased was said to have fallen at as a grassy, flat place which did not even have any blood. 2.3.3 This witness stated that they proceeded to the house where the altercation was said to have taken place. In the main bedroom he observed clothes that were thrown to the floor, a headboard door that was broken, a broken lamp as well as a broken beer bottle. 2.3.4 From here he said they proceeded to the mortuary whereupon he observed an open wound next to the deceased’s ear, a swelling on her left eye as well as a swelling on her buttocks. The open wound that was next to the ear was bleeding profusely. 2.3.5 PW3 proceeded to testify that on the 19th June 2021, the accused arrived at the Police station and narrated a totally different story from the one he had told them on the day of the death of his wife with regard to how his wife met her untimely death. He then took him and the other four Police officers to a sloppy area in the village called Ntlholohetsane where he said the deceased fell and eventually died on that fateful day. Upon reaching that place, the accused showed them the area where he alleged the deceased fell. However, that place was sandy and there was no way the deceased could have sustained the bad injuries that she sustained having fallen on such a place. 2.3.6 Being asked as to the rockiness or otherwise of that area where accused pointed to them, he answered that on the peripherals that area was indeed rocky and sloppy, however, in the road where the accused pointed to them it was sandy. This witness was at the inspection in loco. He pointed at the area where the accused had pointed out to be the place where the deceased fell. This area was about fifty (50) paces from the area where DW1 and PW2 found the accused with the deceased. 2.3.7 His cross examination concentrated on drawing his attention to the fact that they could not have gone to the residence of the accused to establish where deceased fell, since at the time they went, the police already had information from Mateboho Majela (DW2) that the fall occurred at Ntlholohetsane. The witness insisted that they did go to the residence at the instance of the accused. 2.4 PW4 was No. 55964 Detective Inspector Pitso. 2.4.1 His evidence was mostly similar to that of PW3. He corroborated his evidence in all respect. His evidence was that on the 21st May 2021 between 16:00hrs and 16:30hrs the accused and PW6 (the deceased’s uncle) arrived at the police station in Mokhotlong where this witness was stationed to report that the accused and his wife had an altercation and fought and during the fight the deceased ran away and fell at the gate as a result of which the wife had died. 2.4.2 This witness then sent his juniors to go and examine the place where the accused alleged the deceased fell. Upon their return they explained that the place where the accused showed to them had no stones and that it did not have any blood. He then sent his juniors again to go to the mortuary to examine the corpse. Upon their return they reported back to him the injuries that they had seen on the deceased’s corpse. He testified that at this stage, doubt had developed in them which led them to commence their investigations into this matter. 2.4.3 He further testified that around the 18th or 19th June 2021 their investigations led them to the accused and upon questioning the accused he gave them another place as a place where he said the deceased fell and later on died. This second place was a different place from the one that accused had previously taken this witness’s juniors to on the day of the death of the deceased. This new place was at the sloppy area in the village of Ntlholohetsane. The accused then took this witness together with other police officers to that sloppy area where the accused showed them where the deceased fell. The spot where the accused showed them was inside a narrow road where there were no rocks. According to this witness, the deceased would have never sustained the bad injuries that she sustained if indeed she had fallen there. This witness at an inspection in loco pointed at the area where the accused had pointed to him and the other police officers to be the place where the accused said the deceased fell. He corroborated his juniors regarding the pointed area. 2.5 PW5 was No 70601 Detective Sekhonyana. 2.5.1 He was a member of LMPS at Mokhotlong and he testified as follows; that on the 19th June 2021 about 08:00am accused was called to the police station for interrogation in relation to the deceased’s death. Upon his arrival he was given a charge and out of his own volition he told him and the other police officers that he and the deceased had an altercation at Ntlholohetsane and that is the place where she fell and sustained injuries. The accused then took them to Ntlholohetsane to show them the place where the deceased fell. 2.5.2 The place where the accused showed them as the spot where the deceased fell and sustained injuries on the day of her death was not rocky at all and if the deceased had indeed fallen on that place, she would not have sustained the injuries that she sustained. This witness testified during the inspection in loco that he even asked the accused whether he was sure that the place that he showed them was the right place and the answer was in the affirmative. He continued to testify that about five (5) meters from the spot where the deceased was said to have fallen the place was rocky and that is the place where if the deceased could have fallen could have sustained the injuries that she sustained. 2.5.3 Asked as to how the injuries which the deceased had sustained were, he answered that she had an open wound next to her right ear and she had a bruise on her hip. 2.6 PW6 was Motlalentoa Mats’umunyane who was the deceased’s maternal uncle. 2.6.1 He testified that DW2 and PW1 arrived at his home on the day of the death of the deceased and DW2 told him that the accused and deceased had an altercation from which the deceased died. He then asked them of the whereabouts of the accused and they told him he was at home. He requested them to take him there. 2.6.2 Upon their arrival at the accused’s house, he was told that the accused was asleep but he was woken up. He then asked the accused what happened and the accused told him that the previous night the deceased arrived home late at night and he asked her where she was from and she said she was at her maiden home tending to a child who was sick. He said his wife smelled of alcohol and was drunk, and that he did not believe what she told him. He then told her to take him to her maiden home to verify her story. He said they drove towards the deceased’s maiden home and whilst on the way to her maiden home the deceased told him that she was actually from her friend’s house where there was a party. When they arrived at the friend’s home, he found that there was no sign of there ever being a party there on that day and they drove back home. When they arrived back home the deceased ran off and fell at the gate. 2.6.3 This witness testified further that at the gate where the accused said the deceased fell, he did not observe anything which could have injured the deceased except a small stone which was protruding on one side of the gate. He added that he did not see any blood within this area. During the inspection in loco this witness pointed where the accused had said the deceased fell and it was at an area where there was a small protruding stone. He then advised the accused to go to the police station to report the matter and he went together with him. 2.6.4 At the police station, they met PW4 and the accused told PW4 the same story that he had told him. The witness and the accused together with few police officers went back to the accused’s home to examine the scene of crime. Upon their arrival there the police officers requested the accused to bring them the clothes he was wearing when the whole incident happened and he went inside the house and brought a blood-stained shirt. 2.6.5 The cross examination of this witness focused on debunking the theory or rather the evidence that the accused pointed out that the stone at the gate as the one that had caused the fateful wound. This witness stood resolute that the accused had in the presence of the police pointed at this area. I must be quick to add that PW3 and PW5 corroborated this witness except that at the inspection in loco they pointed at different places. 2.7 PW7 was Mampe Natsoane (‘Makanetso Ts’oaeli being her marital name) was accused’s older sister. 2.7.1 Her evidence was that it was around 23:00pm at night on the 20th May 2021 when accused called her on her cell phone at Botha- Bothe where she resides. Accused called to ask her about the whereabouts of the deceased and she told him she did not know where she was. In the morning of the 21st May 2021 at around 05:00am in the morning, she received a call again from the accused who told her that the deceased had arrived. 2.7.2 The accused then passed the phone over to the deceased to talk to her (PW7) and the deceased answered the phone by saying they say she had been asking for her whereabouts. This witness asked her where she was and the deceased answered that she was at a party at her friend’s place. She asked her why she was not answering their phones and the deceased answered that it was just a mistake. She then told the deceased to go to her work and they would see what happens when they all knock off from work. At around 06:00am she received a call from the accused telling her that the deceased had fallen at Ntlholohetsane and that she should help him. 2.7.3 This Ntlholohetsane place that accused was talking about this witness estimated it to be about a kilometer away from the accused’s house. Upon asking the accused as to what had happened that made the deceased fall, the accused related the same story to this witness as the one he had related to PW6 and PW1. However, to this witness he went further to tell her that when he and the deceased got to the deceased’s friend ‘s home they found that there was no sign of ever being a party on that day at that house. Whereupon the deceased told accused that she was from the person who had brought her home with a vehicle. They then proceeded to the end of their village of Ntlholohetsane. When they reached the end of the village, the deceased was unable to point the place where she came from. She then alighted from the vehicle and fled. The accused also alighted from the vehicle and ran after her and he found her having fallen down. 2.7.4 She then called DW1, DW2, and PW1 and told them to go and check what kind of accident the deceased had. She kept on calling them on their phones until she heard that the deceased had been taken to the hospital. Asked how the accused and deceased’s relations were, she answered that they often quarreled. Asked as to how the accused sounded the several times that he called this witness, she answered that at the time when he called her at around 23:00pm at night he sounded worried, when he called again at around 05:00am in the morning he sounded furious and when he called to tell her about the deceased’s accident, he sounded scared. 2.8 PW8 was Tau Ramakoloi who was the accused and deceased’s neighbor at the time of the deceased’s death. 2.8.1 He testified that it was around 04:00am in the morning of the 21st May 2021 and he was preparing to go to work when he heard some noise. He then peeped through the window and that is when he saw the accused and deceased leaving their vehicle which was parked in front of their house and getting into their house. Asked what kind of noise they were making he said they were arguing and having an altercation. 2.8.2 He further testified that when he took his work equipment outside to his vehicle, he saw the accused standing at his house’s door on a phone call, and he also saw the deceased coming out of the house and she was collecting items next or in front of the vehicle which was parked in front of the house. 2.8.3 Asked how accused and deceased’s relations were, he answered that they used to have arguments like the one he heard on that day. Thereafter the witness went to work. He heard about the deceased’s death later that day. The cross examination of this witness concentrated on whether he knew that at all times when the couple (accused and deceased) had an altercation it was when the accused was reprimanding the deceased for her behaviour. To this the witness remined non- committal. 2.9 PW9 was Makhahliso Ramakoloi who was PW8’s wife. 2.9.1 PW9 was the neighbor of the deceased and accused at the time of deceased’s death. Her evidence is as follows; that on the 21st May 2021 her husband (PW8) woke her up as he was about to leave for work telling her that he heard a noise and that it seemed the accused and deceased were arguing. 2.9.2 After her husband had already gone to work, she heard the accused’s vehicle engine being started and she also saw the deceased and accused following each other approaching the vehicle, and the deceased was in front of the accused as they followed each other that way and they boarded the accused’s vehicle. The vehicle took the direction of town (Mokhotlong town). In the afternoon of that day the police went and examined the homestead where the witness’s family and accused’s family lived, and accused was in their company. 2.9.3 This witness also testified that she saw police attending at accused’s home. He saw them standing outside with the accused. This evidence corroborates that which suggested that police did attend at the accused and deceased's home. 2.9.4 The cross examination of this witness centered around the direction the car took when it left the residence of the parties. She confirmed it was towards the direction of deceased’s maiden home. [3] CLOSE OF CROWN’S CASE The crown closed its case after this witness testified. The defence opted to call two (2) witnesses. The accused exercised his right not to personally tender evidence. [4] THE DEFENCE CASE. As has been stated, the defence put to the stand two witnesses who did not include the accused. This was their testimony. 4.1 DW1 was Moeketsi Natsoane who was the accused’s younger brother. 4.1.1 He testified that around 04:00am and 05:00am on the 21st May 2021 he received a phone call from the accused then PW7. They were calling to ask him to help accused with the deceased who had fallen. He then drove to the scene with PW1. He however left PW1 at accused and deceased’s house and proceeded to where deceased and accused were. 4.1.2 Upon arrival at the end of the village of Ntlholohetsane he found accused who was supporting the deceased’s back and head on his knees whilst the deceased was sitting down. He and the accused then carried the deceased. The accused was holding her by her arms while the witness held her by her legs. They carried the deceased to the vehicle and on the way to the vehicle the deceased’s pair of jeans fell off whilst holding her. They tried pulling the jeans back on, however the deceased fell on the ground on her buttocks. The witness suggested that the deceased might have sustained bruises on her buttocks through that fall. Then they managed to pull back on her jeans and out her in the car. 4.1.3 Asked to describe the area where he found the accused and deceased at, he answered that it was a gravel road which was rocky. Asked whether the exact spot he found the accused and deceased at was both graveled and rocky, he answered in the affirmative and added that even the periphery of that place was rocky. Asked whether there were areas where that road was sandy, he said no with the exception of where the trucks loading sand move and sand falls off from such trucks. 4.1.4 Asked what would happen to a person who happens to fall where the deceased fell, his answer was that the person could get injured by the stones as well as rolling over as he/she falls. The accused then drove the deceased to the hospital. Asked under cross- examination as to whether or not where he found the deceased and the accused was in the middle of a road, his answer was it was on the periphery of the road. Asked whether he asked the deceased anything when he got to her and accused at Ntlholohetsane, he answered that he did not ask her anything but the only thing he heard the deceased say was ‘ichu’. (a sound made by one who is in pain.) During the inspection in loco this witness pointed at the area where he found the two. It was on top of the slop. In the middle of the road where it was sandy. This was contrary to his evidence in chief that the area was very rocky. This contradiction of the condition of the road, the place where the deceased was when he found them, points to this witness not being reliable. 4.2 DW2 was ‘Mateboho Majela who was the accused’s maternal aunt. 4.2.1 It was in the morning of the 21st May 2021 when she got a phone call from PW7 who asked her to go and help accused at Ntlholohetsane. When she got to Ntlholohetsane she came across the accused' s vehicle and she boarded it. In the car she found the accused, the deceased and one Mkhulu. Asked what she observed on the deceased she said her shirt was bloody and that the deceased kept on saying “nxa”. The deceased would also say “iyee” whenever the vehicle went over a hump. At one point the deceased even said "I have fallen". She also testified that deceased smelled of alcohol. 4.2.2 On their arrival at the hospital the deceased was placed on the hospital bed. Whilst still on the bed the deceased looked angry and kept on saying nxa and at one point she even fell from the bed to the floor. This fall is corroborated by PW2. 4.2.3 The witness continued to testify that she was instructed by the nurse to remove the deceased's pair of jean as it would obscure the medical team from working on the deceased which she did. The witness went home with the deceased’s jeans. She also testified that she saw blood on the deceased’s jeans. She also observed a wound towards the back of the deceased’s head as well as abrasions on her right arm. 4.2.4 Asked during cross examination how he could believe the deceased when she said she had fallen yet the wound she sustained on her head was on the right side while all the other injuries which were the abrasions on her arm, hip and buttocks were on the left side. Her answer was that she had to believe it since it was said by the deceased herself. 4.2.5 I must state that of all the witnesses who testified, this witness was not credible witness. She was prone to bouts of amnesia whenever cross-examination exposed weakness in her testimony. [5] THE LAW 5.1 The case of the crown is solely based on circumstantial evidence. Meaning that there is no direct evidence that connects the accused with the commission of the crown. For this reason, this court will journey through the provisions on law in order to establish how and if circumstantial evidence can be relied on to establish the guilt or otherwise of an accused person. After the analysis of the law, the court will then marry the law to the evidence of the various witnesses as articulated above. 5.2 Kheola J put the question of reliance on circumstantial evidence as thus; “In a proper case, it is possible for the Crown to get a conviction relying on circumstantial evidence without any eye-witnesses. The question to be decided by the Court in the present case is whether this is a proper case in which a conviction can be sustained on the circumstantial evidence adduced by the Crown.”1 5.3 For this proposition he cited the following authority, which this court is in total agreement with. He cited the renowned author Zeffertt in his publication The South African Law of Evidence2, quoting the learned author where he states the law regarding circumstantial evidence as follows: - "All circumstantial evidence depends ultimately upon facts which are proved by direct evidence, but its use involves an additional source of potential error because the court may be mistaken in its reasoning. The inference which it draws may be a non sequitur, or it may overlook the possibility of other inferences which are equally probable or at least reasonably possible. It sometimes happens that the trier of fact is so pleased at having thought of a theory to explain the facts that he may tend to overlook inconsistent circumstances or assume the existence of facts which have not been proved and cannot legitimately be inferred." 5.3 The proposition being postulated here is that a court sitting and relying on circumstantial evidence must do so with caution. The 1 R v Qhelane and Others (CRI/T/15/86) (CRI/T/15/86) [1989] LSCA 92 (09 August 1989). 2 Hoffman Zeffertt. The South African Law of Evidence. 1st Edition. court should not be overly excited and start connecting dots that lead to one theory. The court should be vigilant and not overlook the myriad of possibilities that the evidence points at. This court accepts this directive and caution. 5.4 In the case of R V Nkosi3, Lehohla J quoted the old case of R v Dickman,4 tracing and tracking the acceptance of the courts of circumstantial evidence. He relied on the following dictum by Lord Coleridge, where he made the following observations concerning the nature, character and description of circumstantial evidence. He stated: - the independence, one of another, of 'It is perfectly true that this is a case of circumstantial evidence and circumstantial evidence alone. Now circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the circumstances. I think one might describe it as a network of facts cast around the accused man. That network may be a mere gossamer thread, as light and as unsubstantial as the air itself. It may vanish at a touch. It may be that, strong as it is in part, it leaves great gaps and rents through which the accused is entitled to pass in safety. It may be so close, so stringent, so coherent in its texture that no efforts on the part of the accused can break through. See also the case of R v Felemane.5 5.5 It is worth noting that Ramodibedi P did state in the case of Nkhesoa Pelea and Another v Rex6 that Circumstantial evidence is a notoriously dangerous platform on which to base conviction in a criminal case. This does not however mean that such evidence should be discarded as being unreliable. 5.6 To circumvent this danger, the courts have, throughout the passage of time, created safeguards against the pitfalls that may befall a conviction based on circumstantial evidence. The leading 3 R v Nkosi (CRI\T\11\91) [1992] LSCA 44 (04 March 1992). 4R v Dickman Newcastle Summer Assizes, 1910 - referred to in Wills on Circumstantial Evidence 7th ed at 46 and 452-60). 5 R v Felemane. 6 Nkhesoa Pelea and Another v Rex (C OF A (CRI) 1/10) [2013] LSCA 11 (19 April 2013). case in this regard is the case of S v Reddy and Others7 the warning was couched in the following words: - “In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a 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 oft-quoted dictum in Rex v Blom 1939 AD 188 at 202-203, 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”. 5.7 Without attempting to dilute the dictum, I venture to say that it is a view of this court it seems to be suggesting that in accepting circumstantial evidence, the trier of fact needs to take stock of the total evidence put before it and not engage in a piecemeal exercise of analysing each evidence in isolation. To this end, the case of S V Ntsele 8 is also appropriate and instructive. In this case the court did not consider every fragment of evidence individually. It was the cumulative impression, with all the pieces of evidence pieced collectively, that had to be considered to determine whether the accused’s guilt had been established beyond a reasonable doubt. In Ntsele, the applicant’s challenge to the evidence was in a piecemeal fashion. Courts are warned to guard against the tendency to focus too intensely on separate and individual components of evidence and view each component in isolation. [6] The main question to be considered therefore is whether the Crown has proved beyond a reasonable doubt that the accused is the person who murdered the deceased. Whether it has discharged this from the totality of the circumstantial evidence led in court. 6.1 This inquiry transports us to the well-established standard or dare I say rules set by the case of Rex v Blom9 which must in this instance apply. The two rules were stated as follows: 7 S v Reddy and others 1996(2) SACR 1 (a) at 8C-D. 8 S v Ntsele. 9 R v Blom 1939 AD 188. “(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. (2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.” When giving life into this provision, the court in R v Acres International10 per Lehohla J, put it as thus The next question to ask at the close of the defence case would be whether a verdict of guilty is the only finding to return. If it is the only one to return then the accused would be convicted. If it is not the only one then on the basis of a plethora of cases including Blom above a doubt will have been shown to exist and on that score the accused would stand to be acquitted. More about this will be said at a later stage of this judgement. [7] ANALYZING CIRCUMSTANTIAL EVIDENCE 7.1 In R v Mtembu11, Schreiner JA put the analysis by the court of circumstantial evidence as such; “I am not satisfied that a trier of fact is obliged to isolate each piece of evidence in a criminal case and test it by the test of reasonable doubt. If the conclusion of guilt can only be reached if certain evidence is accepted or if certain evidence is rejected, then a verdict of guilty means that such evidence must have been accepted or rejected as the case may be, beyond reasonable doubt. Otherwise, the verdict could not properly be arrived at. But that does not necessarily mean that every factor bearing on the question of guilt must be treated as if it were a separate issue to which the test of reasonable doubt must be distinctly applied. I am not satisfied that the possibilities as to the existence of facts from which inferences may be drawn are not fit material for consideration in a criminal case on the general issue whether guilt has been established beyond reasonable doubt , even though, if the existence of each such fact were to be tested by the test of reasonable doubt, mere probabilities in the Crown’s favour would have to be excluded from consideration and mere probabilities in favour of the accused would have to be assumed to be certainties.’’ 10 R v Acres International Limited Ruling at Close of Crown Case (CRI/T/2/2002) [2002] LSCA 60 (18 April 2002). 11 R v Mtembu 1950 (1) SA 670 (A). 7.2 Mofokeng J in the case of R v Matankole 12( quoted with approval the case of S v. Mini.13The Mini case provides that in convicting on the basis of circumstantial evidence there are two main aspects to be considered, namely, (a) the facts proved, and (b) the proper inference to be drawn from those facts. 7.3 Put differently, the Crown must prove beyond reasonable doubt that the killing of the deceased was illegal, the Crown does not discharge this onus if the version of the accused though improbable might be reasonably possibly true. 7.4 The ratio of Hendricks J in S v Nkuna14 also sets out the approach to circumstantial evidence, at paragraph 121 as follows: “The evaluation of circumstantial evidence must be guided by a test of reasonableness. The onus on the State is not that it must prove its case with absolute certainty or beyond a shadow of a doubt. All that is required is such evidence as to satisfy the court and prove its case beyond a reasonable doubt. It is trite law that the accused is under no legal obligation to prove his innocence. The State must prove the guilt of the accused beyond a reasonable doubt”. 7.5 Guided by these principles, this court will later engage in the exercise of pitting the principles against the facts or evidence in this case. I now turn to legal principles guiding the court where the accused has not taken the stand. [8] ACCUSED’S SILENCE 8.1 At the close of the crown case, the accused exercised his right in terms of section 217(1) (a) of CP and E and opted not to give evidence. 12 R v Matankole 12(CRI/T/5/80) [1980] LSHC 35 (16 May 1980). 13 S v. Mini13, 1963 (3) S.a. 188 (a) at p. 195H - 196F). 14 S v Nkuna 2012 (1) SACR 167 (B). In R V Khoza15 the issue of the silence of the accused and the consequences thereof were put as follows: “The fact that the appellant did not give evidence does not result in proof beyond reasonable doubt that he murdered or attempted to murder the deceased. I say this because, before the absence of gainsaying testimony from an accused can be said to carry the day against him, there must first be a prima facie case against him…” 8.2 Differently put, this means that even in the face of the accused’s silence, the crown still has to prove its case beyond reasonable doubt. The onus lies on the Crown to prove its case beyond reasonable doubt. See Rex v. Ntoi.16 8.3 In S. v. Theron17 Trollip & Trengove, JJ said: "Generally, in regard to an accused's failure to testify, a useful, " practical distinction can be drawn between situations in which the State's case is (i) the direct testimony of a witness or witnesses, and (ii) circumstantial evidence… [S]imilarly, in (ii), if the inference of the accused's guilt or innocence can be drawn with the requisite degree of certainty, the accused's silence is unimportant. It is only of importance if, although there is prima facie proof of his guilt, some doubt exists whether that proof should be now regarded as conclusive, that is, that the only reasonable inference from the facts is one of guilt. His silence then "becomes a factor to be considered along with the other factors, and from that totality the Court may draw the inference of guilt. The weight to be given to the factor in question depends upon the circumstances of each case" (per Holmes, J. A., in S v. Letsoko and Others, 1964 (4) S. A. 768 (A. D.) at p. 776 C-E). See also R. v. Ismail, supra at p. 210; S v. Masia 1962 (2) S. A. 541 (A. D) at p. 546 E-H)." (My own Emphasis) It was also said in the case of S v Letsoko18 that; “The true position is that, in cases resting on circumstantial evidence, if there is a prima facie case against the accused which he could answer if innocent, the failure to answer it become a factor, to be considered along with the other factors; and from that 15 R V Khoza 1982(3) SA 1910 . 16 Rex v. Ntoi. CRI/T/39/77 17 S. v. Theron17 1968 (4) S. A. 61 at pp 63 - 64 18 S v. Letsoko and Others, 1964 (4) S. A. 768 (A. D.) at p. 776 C-E). totality the Court may draw the inference of guilt. The weight to be given to the factor in question depends upon the circumstances of each case. S v Masia, 1962 (2) S. A 541 (A. D); A v Mini, 1963 (3) S. A 188 (AD) at pp 159-6” 8.4 Put differently, the accused’s silence is not an opportune moment to make a case for the crown. If the crown’s evidence lacks credibility, it cannot be credible by virtue of the accused’s silence. The accused should also be alive the danger that absent his version, where the circumstantial evidence points towards his involvement in the crime, proving his guilt beyond reasonable doubt, his silence may prove to be disastrous. Put aptly in the case of S v Khomo & Ors19 that: - “It is well known that an accused person, although not obliged to say anything, may nevertheless assist the State case when he remains silent. When I say he may assist the State case, I mean no more than that his silence is one of the factors which may be taken into account in assessing the weight of the evidence in its totality, and may be given some weight, depending upon the facts and circumstances”. 8.5 Where there is no direct evidence linking the accused to the commission of the crime, and the accused chooses silence at the close of the crown’s case, the court in Khomo20 continued as follows: - “..... In such a case an accused person might well take up the attitude that he concedes all the facts proved, but challenges the ability of the Court to draw an inference of guilt from the facts, and, if that is his view, his failure to give evidence may not be attributable to any consciousness of guilt on his part, but to his confidence that the evidence does not establish guilt and does not require to be answered”. 8.6 The task of this court therefore is to weigh the evidence of the crown and make a finding as to whether it establishes the guilt of the accused beyond reasonable doubt. If the evidence doesn’t, then the accused ought to be discharged. 19 S vs Khomo & Ors 1975(1) SA 344 at 345. 20 See footnote 18 above. [9] THE LAW AND THE FACTS 9.1 Having outlined the law, at this juncture the court will turn to establish on the evidence before it and on the legal parameters outlined, whether the crown has established its case beyond reasonable doubt. 9.2 The totality of the evidence brought before court points to the following: (i) That the accused and the deceased had an altercation on the morning in question. This must have been around 04:00 am. The cause of the fight is possibly the arrival of the deceased at the matrimonial home during the wee hours of the morning. The altercation was proved by the neighbors who heard the parties shouting at each other, so much so that it roused the curiosity of PW7 and PW8. Not long after the shouting the deceased was seen walking. The witness testified that she saw the movement of the deceased picking “things” and putting them in the car during these hours. I am also convinced that the broken lamp and the broken headboard door are possibly the “victims” of the altercation. This connects with the evidence that the car of the deceased was seen parked at their home full of clothing inside. (ii) I must add that the value of these broken item merely talks to the fact or proof of an altercation. A fact that is not denied. The evidence also suggests that the two drove off with a motor vehicle heading in the direction of the deceased’s home. I should immediately point out that despite what the initial evidence suggested, at the inspection in loco, evidence by PW3 was to the effect that whether the car turned left or right from their home, either direction would have led to the deceased’s maiden home. (iii) The evidence also proves that the final destination of the two was at the area the court visited, that is during the inspection in loco. There has been evidence heard that the two drove to two different places being the deceased’s maiden home and a friend’s home. However, this evidence is hearsay inadmissible and therefore unreliable. This is so due to the fact that all the witnesses who gave this evidence had heard this explanation from either the accused or from someone who the accused had told. There being no version by the accused on the veracity or probable truthfulness of the evidence, the court disregards this as evidence. It should be recalled that only two people know exactly where the car drove to. These are the accused and the deceased. One is not around to tell the tale, the other has a constitutional right not to tell the tale. The court, using the tools outlined in the cases cited above, will make inferences. (iv) The court draws an inference that the car never drove to any of those areas. Even if it did, it only compounds the case of the accused in that whilst driving to those places and drawing naught, accused’s anger increased with every nil score reached. But as has been said, the court disregards this untested evidence which was not put under cross examination. (v) The evidence then journeys to the sloppy area which was the subject matter of the inspection in loco. The court must then take into account the evidence before it that one (1) or so hours lapsed between the time the car left the matrimonial home, which according to the reliable evidence of PW8 was around 04:00am and the time that PW7 received an SOS (signal for help) call from the accused. I found the evidence of PW8 in relation to the departure of the car from the residence to be credible in that not only did it withstand cross examination, but it is also corroborated by that of PW9. The next hour the accused and the deceased were seen by eye witnesses was around 05:00am when the PW7 summoned her siblings to go to Ntlholohetsane because she had received an SOS call from the accused, telling her that something was wrong with the deceased. (vi) The question is what could have happed during this hour, and should the court make much about it? (vii) The court was then transported by the evidence to the scene where the siblings of the accused namely DW1 found the accused with the deceased. DW2 confirmed that she was alive upon arrival at the hospital. Even the evidence of PW2 who is a nurse by profession but who was quick to inform the court that he was not the attending nurse, did confirm that she was alive at the time she was taken to hospital. PW1 also said that the accused had said to her that he had left the deceased at the hospital. The irresistible conclusion therefore is, the deceased was alive when she went at the hospital. So, the inference is that she was alive when DW1 arrived at Ntlholohetsane. (viii) At the top of the slope, the deceased was sitting with her legs straightened and her back was resting on the accused. DW1 testified that she could not walk on her own and thus was carried to the car. The question that immediately comes to mind is, when did she become unable to walk? Also, what cause this inability? It should be recalled that the evidence of the neighbor PW9 was to the effect that the deceased was seen picking things and walking to the car. This was confirmed in a way by the evidence of PW1 who gave evidence that the vehicle of the deceased, which she found parked at their home, was full of clothes. Were these not the clothes she put in the car when she was told to go to where she came from? The court observes that the totality of the evidence suggests that she was at this time able to walk unassisted. It was only at the time when she was found with the accused at the top of the slope that she was unable to walk on her own. Evidence also suggests that she was assisted into the hospital. (ix) The inference to be drawn from the totality of the circumstantial evidence is that her inability to walk had something to do with what had happened after they left their place of residence, which can only be known directly by the accused. Also, her swollen face as witnessed by PW2 had to do with something that happened, which can only be known directly by the accused. In his absence or the absence of his evidence, the court relies on the evidence of the post- mortem report. The doctor explains in detail the injuries suffered by the accused and offers what could be the probable course of death as subdural hematoma. What comes out of the post mortem report is that the accused suffered a blow on the frontal head leading to Subdural Hematoma21. Mr. Motsóehli argued that what the doctor narrates as the probable cause is hearsay since he was merely informed. My view is that the doctor acceptance of a probable assault is found in the scientific fact that injuries sustained by the decease are consistent with an assault. (x) The accused had a wound behind her ear. There were other abrasions on her body. The reasonable inference to be drawn is that something must have caused the wound and the abrasions. The version put to the crown witnesses was that this could be as a result of a fall. Witnesses, PW3, PW4 and PW5 categorically denied that the injuries were consistent with a fall from the slope. 21 According to National Health Services of the United Kingdom, the causes of Subdural Hematomas are head injuries from a car crash, fall or violent assault. M/s Mofilikoane for the crown submitted the wound which is behind the head could never be as a result of a fall. Her theory was that a wound behind an ear dismisses any argument of a fall. More so on the type of road where it is alleged the accused fell. She continued her argument that even the abrasions were inconsistant with a fall on a slope because in the natural cause of things, a person who falls on a sloppy area is more likely to use their palms as brakes to protect themselves from falling further into the slope but there were no marked injuries where expected. Instead, the injuries on the opposite side of the wound pointed towards being dragged and not falling. I therefore conclude that the wound behind the ear was as a result of an assault the deceased suffered from the accused. (x) Is there evidence that the deceased fell? The importance of this question leads to the 2nd leg of the Blom inquiry. Whether there is any other inference that can be drawn as an alternative cause of death, as opposed to what the circumstantial evidence points to. The starting point is, absent the evidence of the accused, the court has no other tested version of what caused the deceased’s injuries which led to her death. In fact, the visit to the scene of the crime suggest or point towards the crown’s case being reasonably probably true. The place where the accused is said to have fallen, contrary to the version of the accused that was put to witnesses during cross examination, is not extremely sloppy. Neither is it rocky. It is a sand covered area which, contrary to the evidence of DW1, even sedan cars could travel on. The area on both sides of the sloppy road is extremely rocky. That is at the peripheral. Had any evidence pointed to this area where the deceased fell, the court could have been persuaded that the theory of a fall is a different or another inference to be drawn. I must emphasise and add that the slope is not too steep. A fall on this area would not cause a wound the magnitude of the one described in the post mortem. Neither would it cause what is described in the post-mortem as a traumatic subdural hematoma this can be as a result of trauma suffered as a result of an assault. (xi) During the inspection in loco there were two (2) areas that were pointed. The one area was pointed by PW’s 3 and PW4 as the area where the accused alleged the deceased fell. The other spot, which is about (eighty) 80 paces from this area is the spot where the DW1 found the deceased and accused at. (xii) From this evidence before court, having found that it is improbable that the deceased fell, the only logical probable conclusion that can be drawn is that the wounds and abrasions on the deceased were as a result of an assault and being dragged (eighty) 80 paces. This is also consistent with an injury which the doctor describes as traumatic subdural hematoma this can be as a result of trauma suffered as a result of an assault. The evidence before court does not suggest that anyone other than the accused was with the deceased at the time she suffered these injuries. since they are not from a fall then the evidence points at the accused. This is consistent with the dictum on Blom above. (xiii) PW7 testified that at 11:00 pm the accused called her to inform her that his wife, the deceased had not arrived. At 04:00am am when she arrived, the accused then had a fight with her which resulted in them ending up at the slope. It does not need rocket scientist to find that the couple did not take a joyride to the slopes. Neither can it be said that the accused was calm and happy with his wife. This talks to the evidence of possible assault. (xiv) There was evidence by DW2 to the effect that the deceased, during whispers of pain said “Ke oele”, meaning I fell. I find this evidence unreliable. This witness was not a credible witness who was quick to forget evidence put to her under cross examination especially evidence that seemed not to support her version of events. She is also the accused’s aunt. The relationship might have put her in a position where she felt it was her cross to carry in rescuing the accused. I compare her enthusiasm to protect the accused similar to PW6 eagerness to have accused hell guilty come hell and high water. He demonstrated this by pointing at a stone. 9.3 Having woven the totality of the evidence on the authority of the cases relied on, incorporating as I did the evidence of the defence witnesses, I took also into consideration the 2nd phase of the dictum in Blom’s case. That there is: “The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.” In my view the proved facts exclude the inference of a fall. They also exclude other reasonable inferences. For this reason, the state has proved the accused’s guilt beyond a reasonable doubt. There being no doubt cast upon the evidence it led. [10] CONCLUSION 10.1 I therefore conclude that the evidence points towards the accused as the person who administered the injuries that led to the death of the deceased. I therefore find the accused guilty of murder as charged. My assessors agree with me. 10.2 I invite the crown and the defence to favour the court with extenuating circumstances because a conviction to a murder charge attracts the death sentence in terms of section 296 of the CP&E, they should also address the court on mitigating and relitigating circumstances. [11] EXENUATING CIRCUMSTANCES 11.1 Following the conviction of the accused, the court invited counsel to address the court of extenuating circumstances. On the 20th April 2023, this took place. 11.2 The accused took the stand to lead evidence. In a nutshell. He informed the court that he is a business man and a father of two (2) children. That the children who are aged 12 and 13 are currently living with his sister-in-law. This is the deceased’s older sister. They have been living with her since the burial of their mother. He said that this transition was agreed to by both his and her family and he acceded to it when he realised that wife’s family was still harboring anger and he believed that this would pacify them and normalize relations. All in all the children are as well as can be safe for what is expected post the traumatic situation. 11.3 As the upper guardian of all minors, this court cannot resist the temptation to intervene with this and order the prosecution to undertake to advice that the children undergo counseling with the relevant professionals. I am aware that these are offered for free within the Ministry of social welfare. This was just a detour. The court now goes ack to the business of the day which is to find whether extenuating circumstances s exist. 11.4 Mr. Motsóehli submitted that the fact that the accused’s wife come home in the wee hour of the morning “entitled” him to be angry and as a result of which he meted out the assaults that he did. I repeatedly brought it to the attention if Mr. Motsóehli my discomfort with the use of the word entitled. He continued that the deceased provoked the accused by so arriving. 11.5 M/s Mofilikoane for the crown conceded that there were extenuating circumstances. These she said was that the arrival of the could be an influential factor which led the accused to behave the way he did. She categorically denied that this was an entitlement by a husband. She much argued along the reasoning of Monaphathi J in R v Mphahama22 where the learned judge acknowledged that catching one’s partner red handed in an adulterous relationship can rouse anger. Not as a sense of entitlement to the anger, but as a natural flow of emotions. 11.6 In Letuka v Rex Steyn P gave a list what can be considered as extenuating circumstances. The list is not exhaustive per se. the court said: - “Moreover, each fact 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 which can be considered include the following: a) Youth b) Liquor c) Emotional conflict d) The nature of the conflict e) Provocation f) Sub-normal intelligence g) General background h) Impulsiveness i) A lesser part in the commission of the murder j) The absence of dolus directus 22 R v Mphahama (2) (CRI/T/46/2010) [2011] LSHC 74 (13 July 2011); k) Belief in witchcraft l) Absence of premeditation or planning m)Heavy confrontation between an accused and a deceased before the murder n) The rage of an Accused.” 11.7 The question that this court has to grapple is, is a man or a spouse entitled or even morally allowed to assault his or her in fit of rage because the spouse did not conform to some marital expectation such as, specifically to this case, arrive home at the expected time? 11.8 I have deliberately and consciously chosen to use the words morally wrong because the judgement call that the court is expected to make at the extenuating stage is the moral blameworthiness of the accused and not the legal role played by the accused. Better articulated in the case of R v Moleleki 23 where Justice F. X. Rooney said “It has been said that the question of extenuating circumstances is a moral rather than a legal one (R. v Biyane 1938 EDL 310, R. v Fundakubi 1948 (3) SA 810”. 11.9 The discomfort that I am expressing with the reasoning of the entitlement that a spouse may have with the expectation that it will be condoned under the pretext of passion, fit of anger influenced by love is that kind of reasoning promotes gender-based violence. Where should the line be drawn? How many graveyards should be filled. Partners suffer so much violence in the hands of their loved ones under this misplaced anger and entitlement. Aren’t the courts vehicles of social justice? Gender-based violence (GBV) is a reality for many women in Lesotho. The Police Child and Gender Protection Unit reports that from January through July 2022, there have been 184 sexual offences and 45 assault cases perpetrated against women. In 2021, at least 47% of women murdered in Lesotho were killed by their intimate partners.24 23 R v Moleleki (CRI/T/10/80) [1980] LSHC 61 (14 November 1980). 24 (Mongoshi, 2021). AD546: the article continues to state that in Lesotho, gender-based violence tops the list of women’s-rights issues to be addressed. 11.10 It is for this reason that I refuse to accept the so-called rage of the accused and an extenuating circumstance in this particular case. This court is alive and definitely not blind the anger and fury that can be caused by a cheating partner. A partner that squanders the family budget without remorse or accountability and all other matrimonial issues that subject the other partner to feel enraged. The court is also alive to the fact that such anger can and should be managed and controlled. Media (social and Print) and a lot of platforms have taken a positive step in educating the nation on anger management issues. Every radio station would not run for more than a week without addressing these issues. Churches, schools, business meetings, workplace spaces have all become centers of anger management in one way or the other. The accused does not live in a one-man island, isolated from society, to claim that he cannot access these platforms. 11.11 For this reason, I refuse to accept that the accused anger is what the inexhaustive list in Letuka envisaged when it talked of feat of anger. I am more inclined to tilt towards the personal and general background of the accused and his youth. He led evidence to the effect that he is a man who was born and bred in Mokhotlong and not much exposed to urban life. This is in line with the provisions of Section 296(2) of the CP&E. I therefore find that in line with section 269 of the CP&E, there exists extenuating circumstances that I will thus invoke the provisions of section 290(3) of the CP&E. [12] MITIGATING AND AGGRAVATING FACTORS 12.1 On behalf of the accused adv Motsóehli submitted that the accused is a first offender, that he is a father of two 2 minor children, that the children should be considered when sentencing the accused in that they now only have 1 parent. Also, that he is a business man. As stated above, when the accused took the stand to outline his personal circumstances, evidence showed that currently or rather since the burial of his wife, his two children are living with their mother’s older sister. 12.2 M/s Mofilikoane on the other hand said the following are aggravating factors. That murder is a serious offence. That the accused has denied the deceased an opportunity to raise her children. That the accused at worst owed the deceased a duty of protection and not to be the one to perpetrate violence against her. That the deceased will never have an opportunity to see her beloved ones, being her family, siblings, friends. The list is endless. [13] SENTENCING 13.1 There were three primary considerations which the court takes to mind when it imposes sentences: 1. the crime; 2. the offender; and 3. the interests of society. 13.2 These considerations have become well-established as the Zinn triad.25 In the case of S v Mathe26 the court said: “When determining whether there are substantial and compelling circumstances to justify a lesser sentence a trial Court must consider all factors that may reduce the blameworthiness of the offender and mitigate culpability to come to the conclusion whether substantial and compelling circumstances exist or not. This aspect was set out clearly in the well-known decision of S v Malgas 2001 (1) SCACR 469”. 13.3 CR Snyman writes that this duty of the court is of utmost importance, since here the court sets out tersely the three most important matters a court should take into consideration in imposing sentence The accused’’s personal circumstances constitute mitigating circumstances, whereas the nature of the crime and the interests of society amount to aggravating circumstances. 13.4 Imposing a sentence is an action that requires the court to work purposefully at finding the most appropriate sentence in a manner which accords with an accused's fair trial right embodied in the Constitution. Our courts have emphasised repeatedly that a sentence imposed must always be individualised, considered and passed dispassionately objectively and upon a careful 25 Named after the case of S v Zinn 1969(2) SA 537 (A) at 540G. 26 CASE NUMBER: CC 145/2017. consideration of all relevant factors on the basis that retribution and revenge alone do not drive sentencing. 13.5 On the issue of passing sentence dispassionately, this court is alive to the caution that is prescribed in these writings of voet that “[a]nger should be especially kept down in punishing, because he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too little. It is also true that it would be desirable that they who hold the office of Judges should be like the laws, which approach punishment not in a spirit of anger but in one of equity” 13.6 An expression of this view was articulated with clarity in the case of Fielies v S. 27 The court said; “Johannes Voet has drawn our attention to the fact that, as long ago as the Roman republic, Cicero cautioned against judges having ‘misplaced pity’ for offenders. This expression has perhaps been immortalised, among South African lawyers, by Holmes JA in S v Rabie, when he recast it as ‘maudlin sympathy’. Nevertheless, as Schreiner JA said in R v Karg, ‘righteous anger should not becloud judgment.’ There must always be a degree of sorrow, if not reluctance, when a judge deprives a person of his or her freedom’’. 13.7 It is in the case of S v Kumalo 28 where the court stated that punishment must fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances. Furthermore, In S v Mhlakaza and Another29 the court found that the object of sentencing is not necessarily to satisfy public opinion but to promote public interests. A sentencing policy that caters predominantly for public opinion is inherently flawed. Failure to heed this caution was seen in the case of S v Mandlozi30 2015 (2) SACR 258 (FB), in this matter, the trial court, despite its consideration of all the relevant factors and being commended for a good judgment, was faulted on this basis: 'The court a quo somehow excessively stressed the gravity of the crime together with the harm to society's interest at the expense of the 27 Fielies v S (851/2013) [2014] ZASCA 19.1 28 S vs Kumalo 1973 SA 697 [A]. 29 S v Mhlakaza and Another (386/96) [1997] ZASCA 7; [1997] 2 All SA 185 (A). 30 S v Mandlozi 2015 (2) SACR 258 (FB). profile of the appellant. As a result of the imbalance the court a quo inappropriately imposed a sentence which tended to be more retributive than deterrent in effect. 13.8 Put in the simplest of term, a sentencing court is tasked with a balancing act. A feat it should not take for granted, anger and misplaced sympathy or any emotion should not find their way into the sentence. While the Zin triad talks to the issue of interest of society, this should never translate to public opinion, for this has no place in the judgements of the court. “In the words of Schreiner JA in R v Karg 1961 (1) SA 231 (A) 236B-C, does not mean that it is "wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences the Courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands". But, he added, "righteous anger should not becloud judgment". 13.9 I conclude the analyses on the duties of a sentencing court by the words in the case of S v Rabie31 it was held as follows: - “Punishment should fit the criminal as well as the crime, be fair to society and be blended with the measure of mercy according to the circumstances.” 13.10 Having considered all these authorities, the extenuating factors, the mitigating and aggravating factors the court sentences the accused to 29 years imprisonment in the correctional facility. ------------------------------ M. G. HLAELE JUDGE For Crown: Adv. Mofilikoane For Accused: Adv. L. Motšoehli 31 S v Rabie 1975 (4) SA 855 (AD) at 862G-H. 35