S v Lepheane (CR/T/76/99)

Case No: 
CR/T/76/99
Media Neutral Citation: 
[2001] LSHC 114
Judgment Date: 
15 November, 2001

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CR/T/76/99

IN THE HIGH COURT OF LESOTHO

In the matter of:

REX

Vs

THABO LEPHEANE JUDGEMENT

Delivered by the Honourable Mrs Justice K.J. Guni on the 15th day of November 2001

The accused in this case, is charged with two counts. The first count is the charge of the crime of murder. In that upon or about the 24th January 1997, at or near HA NKHAHLE in the district of Qachas's Nek, the said accused did unlawfully and intentionally kill one MOLEMO SEKATLE.


In the second count, the accused who apparently used a firearm in the commission of the alleged murder, was found to have no firearm certificate authorising him to possess the same. He was consequently charged with contravention of section 3(1) INTERNAL SECURITY (ARMS AND AMMUNITION) ACT N0.17 OF 1966. In that upon or about the 25th January 1997, and at or near Ha Nkhahle in the district of Qacha's Nek, the said accused did unlawfully and intentionally have in his possession 7.65 auto-pistol serial number 675637, and did fail to produce a firearm certificate in force at the time.

The relevant portion of section 3(1) reads as follows:

"Subject to the provisions of this act, No person shall purchase, acquire or have in his possession any firearm or ammunition to which this part of this Act applies, unless she holds a firearm certificate in force at the time.

(My underlining -).

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The section makes it obligatory to have the firearm certificate for any person who has a firearm and/or ammunition. In respect of count one, the charge of the crime of murder, the accused pleaded not guilty. His counsel indicated to the court that such plea is in accordance with his instructions. The court entered a plea of not guilty on behalf of the accused. As regards count two, the charge of contravening section 3(1) INTERNAL SECURITY ACT 1966, the accused pleaded guilty. Again, his counsel indicated that the plea is in accordance with his instruction. The plea of guilty was entered on behalf of the accused.

The counsel for the accused made certain admissions on behalf of the accused. The accused admits the facts contained in the depositions of the following crown witnesses: -

PW1 - Leutant Colonel JOHN TELUKHUNOANA

PW2 - MOLEFI PANENG

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PW3 - TUKISO SEKATLE

PW4 - BUTI SETHOLE

PW8- Trooper BOLOFO

PW9 - 'MATUKISO SEKATLE

PW10- Sgt. Detective SEKHIBANE.

The deposition of all these witnesses were read by the crown counsel into the machine. By agreement of both parties the following EXHIBITS were also handled in. The crown counsel read into the machine the ballistic report. EXHIBIT A - Ballistic report. EXHIBIT 1 - The firearm - 7.65mm ceska pistol

Serial numbers 675637.

EXHIBITS - Two cartridge cases plus one live bullet.

No particulars of any of the charges were provided and none were asked for by the accused. It appears from the evidence before this court that the deceased met his death on

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the night of the 24th January 1997. He was shot. The bullet entered his body at the back, just below his right shoulder. That bullet came out - thus creating an exit wound, infront, on the chest near his right breast just below the collar-bone. The post-mortem examination was carried out, on the body of the deceased, on the 29th January 1997. The Dr. made a specific finding that death was due to Heamothorax right side. Pleurae, Pleural sacs, lungs, on the right side heamotoma. There was bleeding on the parts listed. This shows that these parts sustain injury as the bullet went through them. In plain language the deceased died from this gunshot wound.

The accused appears to deny that he shot the deceased and caused that injury from which he finally succumbed.

The events of the night of the 24th January 1997 appear from the evidence of the accused and his mistress - PW1. These two, (the accused and PW1) have been lovers since 1995. PW1 is 'MATSEPO PANENG. She is married to somebody else other

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than this accused. The accused's position is therefore that of a paramour. He met with PW1 during the day and arranged with her to spend the night together at her place.

At about 9-10 o'clock that night of the 24th January 1997, the accused arrived at his mistress's house. He knocked at the door. The response was the enquiry! "who is it?" The accused instead of saying who he is, asked the girlfriend to come out. Recognising her paramour's voice, the mistress obliged without further ado. The couple (accused and his girlfriend) walked a short distance away from the house. They stopped and discussed their matters of concern for the night. The girlfriend told the accused that she must go back first to ensure that the coast is clear. She has a 15-16 year old daughter. She told her paramour that she is taking that girt to one of her neighbours where she usually spent the nights. She told this court that at her age, her daughter is old enough to see what goes on between her mother and her paramour. PW1 expressed a view that she did not want that girl to witness what they do. This witness's

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house is one roomed, which is a great disadvantage to her privacy. As she proceeded with her daughter to where she was going to sleep, the paramour remained outside her house. He was standing under the tree some distance from the house.

When 'Matsepo returned her paramour called her to the tree under which he was still standing. The girlfriend came. He then asked her, who is the person that went into her house while she was gone. This accused pointed out to his girlfriend that the person entered her house while she was gone. Once inside that house, the light went off-presumably being put out by that person. The accused claims that that person entered so quickly that he (the accused) could not see whether or not it was a man or a woman.

The girlfriend indicated that she could not possibly know that person. This was definitely not a satisfactory answer to the accused. He asked her this question, "How can you not know him? The accused seemed not to readily relish the

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prospects of a competition. The girlfriend pointed out to him that they (him and her) are always together. If they are not at her place, they are at his place. By implication the accused's girlfriend was trying to convince him that she entertains no other men but him. The accused wanted to know if the girlfriend was expecting someone other than himself, to visit her that night. The answer was still in the negative.

The accused then instructed the girlfriend to go to the door and knock. She must ask the person in the house who he was. He followed behind her and as they went he promised her help and protection should the need arise. According to the accused he cocked his gun in readiness to fire. According to his girlfriend, she did not know that the accused has a gun and that he has cocked it-ready to discharge the bullet. She carried out her paramour's instructions to the letter. While knocking at her door and asking the person inside who he was, she heard the hinges of her bed squeak. Apparently her bed is placed right behind the door. It was as if that person inside her house

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was getting off her bed. The door opened . Someone came out and immediately grabbed hold of the accused's girlfriend and embraced her tightly. She said she got frightened. The accused asked that person, "what are you doing?" He must have been surprised by this demonstration of fondness when he was expecting an attack. At the same time he fired one shot. The person let go of the accused's girlfriend and ran for his dear life. Both the accused and his girlfriend say that this person ran very fast. They had no opportunity to see and identify that person's gender. They did not see if the person was wearing a pair of trousers or a skirt.

Nevertheless, even though this person ran away that fast, the accused still felt the need to discharge his gun for the second time. At the time he the accused fired the second shot, he admitted, that neither himself nor his girlfriend were in any danger. His sole purpose for firing for the second time was to scare that already scared and running away person even further. He told this court that he fired even though this person

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was already running away because he felt that should this person hide, he should never consider coming back. This person had run about 20 or so paces when the gun was discharged for the second time.

According to the accused the person ran and disappeared in the forest. That puts the forest very close to the accused's girlfriend house. The photographs show this court that the scene of the crime is in the bushy area. The accused's girlfriend told him that she wants to wake up one of her neighbours, one Makhotsofalang. She felt that she must tell her the misfortune or the calamity that has befallen her. The calamity was the shooting that took place at her home. The boyfriend accompanied her to 'Makhotsofalang's place. There, she knocked at the door and asked 'Makhotsofalang to come to her house. She and her paramour immediately returned to her house. 'Makhotsofalang joined them shortly. The accused's girlfriend told the court that she repeated to her the event of that night as she related them before this court.

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Thereafter her paramour told them that because of that shooting, he fears that the villagers will come to investigate what it was for. He told this court that he is not one of those villagers. Being a stranger he feared for his personal safety. So there was now a change of their plans. He was now leaving for his own place. The girlfriend's sense of insecurity was hightened she did not want to sleep without her boyfriend in her house. 'Makhotsofalang encouraged her to come with her to her residence. The accused's girlfriend picked up her baby and went with 'Makhotsofalang to her residence to spent that night. The accused told the court that he was afraid when the stranger entered into his girlfriend's house because he knew that there were two children left sleeping in there. Strangely enough the girlfriend talk only of one child which she picked up and took it with her to 'Makhotsofalang's residence to spent the night there.

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According to the accused's girlfriend she did not know the purpose of the visit by the stranger. She did not know if that person will return that night. The accused before he left his girlfriend instructed her to come to his place where she will find him, should she need him or to give him reports about the development the next day.

Another neighbour of the accused's girlfriend-'MATUKISO SEKATLE also heard the gun report that night when the accused discharged his firearm. She did not recognise it as a gun report. In fact she thought it was a cracker's noise. She continued in her sleep.

At about 12 midnight one of her children woke her up indicating that there is someone outside their house. 'Matukiso saw or heard someone walking in the forecourt. At 05.00 hours 'Matukiso woke up her son and sent him to go and inspect at their cattle kraal, to see if all is well. She thought the person she saw walking in their forecourt at 12 midnight might have

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come to steal their cattle. On his way to the cattle kraal, the boy saw some bloodstains on the walls of their huts and some footprints made with mud around the huts.

This boy returned to his mother to report these observations. The mother woke up to come and see for herself. After seeing the bloodstains and footprints made of mud, she knocked at one of the huts which was occupied by some two tenants they have on the property. She enquired from one of them who woke up and came out. She asked him if they slept well last night. She asked him what was taking place there. The tenants replied that they did not sleep well previous night. They reported that there was a person knocking at the door and calling her name. This person was asking that she opens the door for him.

'Matukiso immediately after hearing that report of the events at her place last night, indicated to the tenants and her children that she is going to report to her father-in-law -

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TAHLEHO SEKATLE. She at once left for PW3 - TAHLEHO SEKATLE'S place. On arrival at her father-in-law's place she found him in the garden. While she narrated what happened at her home and reporting about bloodstains and footprints, her son called out to her that there was a person lying down just below their forecourt.

'Matukiso and TAHLEHO SEKATLE come rushing to the place where the alarm indicates. 'Matukiso together with one 'Masemano were not close to the place where this person was lying. 'Masemano enquired from TAHLEHO Sekatle who was closer to the scene of alarm, as to who that person is. TAHLEHO recognised and identified the person as one MOLEMO SEKATLE.

MOLEMO SEKATLE - deceased was a young man of about twenty-four (24) years of age. He was still attending school here in Maseru. He went to that village during the school's holidays. He usually stayed with 'Masemano Sekatle when he was on

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school's holiday in that village. 'These people who discovers the deceased's dead body in the morning of 25th January 1997, are all his relatives. A lot of people gathered there as a result of the alarm raised. The accused's girlfriend was also present for a short while. The chief was sent for by TAHLEHO SEKATLE. He arrived at the scene at once, together with a lot of people who accompanied him.

On arrival at the scene the chief also called the police without further ado. The police were at the scene in an instant. Police started their investigations. They took photographs of the scene of the crime. They inspected the body of the deceased. Thereafter they took the body to the mutuary at Machabeng Hospital there at Qacha's Nek Reserve. TAHLEHO SEKATLE accompanied the deceased's body to the mutuary. Along the way the body sustained no further injuries. The accused's girlfriend who was amongst those people who responded to the alarm remained tide lipped about the events of last night at ther house and the shooting. She told the court that when she

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learnt that the person found dead was shot, she became even more afraid to report to anyone about the shooting at her house last night. She left the scene of the crime

TAHLEHO SEKATLE returned home from the mutuary. He found the villagers still gathered at the home of 'Matukiso. The chief showed TAHLEHO Sekatle the two cartridge cases and gave a report of how and where they were found. The cartridge cases were found by PW4 at the home of the accused's girlfriend. The police requested the boys who were playing football to be on the lookout for cartridge cases on the ground there as they played. Right then on hearing this, PW2 (at P.E.) 11 years old son of the accused's girlfriend, told his colleague PW3 (at PE) Tukiso Sekatle a relative of the deceased that he found the live bullet inside his house. He was told to throw it away. He did not make a mention of the name of the person who told him to throw it away. He however took TUKISO to the place where he threw that bullet: PW2 showed it to PW3 who retrieved it and gave it to his uncle Phallang Sekatle.

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It was the finding of this live bullet which instigated the search for bullets to be extended to the home of the accused's girlfriend. There PW4 at PE found (2) two cartridge cases one on the left side and the other on the right side of the forecourt. These were given to the chief who handed them to the police. They were sent by Detective Sgt. SEKHIBANE to Leut. Colonel John Telukhunoana - forensic ballistic expert. He sent them for examination together with the firearm which the accused handed to this Sgt. SEKHIBANE on the 26th January 1997.

The forensic ballistic examiner, Telukhunoana found during the examination which he carried out on these cartridge cases - Exhibit 2 and the pistol - exhibit 1, that the cartridge cases have been fired in the pistol - Exhibit 1. The evidence of the accused and his girlfriend on this point of firing at the girlfriend's place, is consistant with that of the ballistic expert. They both told this court that the accused fired twice that night

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while he was at the forecourt of his girlfriends house. This is where the two cartridge cases were found the next morning.

It is an established fact beyond any doubt whatsoever that the accused fired two shots that night of the 24th January 1997, while at the forecourt of his girlfriend's home.

Did one of those shots fired by the accused hit and injure the deceased who died from that injury? The first bullet was discharged from the accused's pistol while the person who came out of the girlfriend house, had embraced the accused's girlfriend. This is an admitted fact by the accused. When the firearm was discharged the first time, that person let go of the accused's girlfriend and ran away. He could have been followed for some paces considering where the shell was found.

This person as he ran away followed the normal footpath which leads away from the accused's girlfriends house. He was running very fast according to the accused. The accused then

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fired the second shot. Did this second shot hit the person who was running away? The only eye-witnesses who could have seen that; are the accused and his girlfriend. They both claim that they did not see if that person was hit or not. The accused told the court that that person ran and disappeared in the forest.

The accused goes even further to say there is no way he could have hit the fleeing person because he specifically directed his shot up-into the sky. He claims he pointed his gun upwards. The spent bullets were not found. The cartridge cases were found close to a point where the accused was when he fired. There is no evidence that there were any gun reports in that village that night except for those two incidences when the accused discharged the bullets from his gun. Where could the person with gunshot wound have come from? His wound was in fact still bleeding when he was found next morning. He was in that same neighbourhood, where there was shooting last

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night. The blood stains and footprints are clear indications that he was around there during that night.

Can the inference be drawn that the second time when the accused discharged his gun, he did hit the deceased at the back. According to the accused the person was running away and very fast too. He fired in the air while that person ran. Is it a coincident that this person who was running away, and by so doing exposing his back to a danger was hit at the back by a bullet from the accused's gun?

This person was discovered dead the next morning. He was in that neighbourhood where the shooting by the accused took place. The conclusion that the accused shot the deceased is inevitable. The distance from the accused's girlfriend's house and 'Matukos's house was estimated as between 20-23 paces. According to the accused when he discharged the second bullet that person had run approximately the same distance.

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Immediately after the second shot was fired by the accused, he decided he was no longer going to spend that night with his girlfriend there at her place. He was now afraid that the villagers will come to investigate the shooting. Why would the investigations of the shooting by the villagers pose any danger to the accused's personal safety? Was this a guilty conscience? If it is, it lends further support to the drawing of the inference that this accused shot the deceased. His girlfriend also deserted her home for that night. She also had fears that the strange person might return. She told the court that because she did not know the purpose of his visit, she did not feel safe.

Both the accused and his girlfriend have not told this court the whole truth. Why if there were those fears they have expressed, did they not go to report the incident to the chief and/or police? Infact they avoided anything that would show that they had the visitor last night or that the accused's girlfriend was attacked. May be since the person merely

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embraced her, demonstrating, fondness, that cannot be described as an attack. Embrace shows affection and should not have instilled fear in the accused's girlfriend mind. The grounds for the fears they claim to have had that night are not the real grounds for those fears.

Even when the accused promptly asked that person "What are you doing?" When he saw him emveloping his girlfriend in an embrace, it was not a question prompted by fear of danger. The accused said he did not feel that he or his girlfriend, was in any danger. It was certainly prompted by jealousy. When that person ran away, the accused was not still satisfied that the person was really leaving them well alone. He said the person ran following the path leading from the left of the house. The accused who was infront of the house-by the door where his girlfriend was knocking when that person came out seems to have also drifted to the left, perhaps in pursuit of the fleeing person. Another shell was found right there on the left side of the forecourt. Could that be where he was now standing when

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he fired the second shot as the person fled? I reject the suggestion that it could have been put there by the children. There is no evidence that any children were seen playing at the accused's girlfriend's forecourt. Her son found the live bullet inside their house and was told to throw it away. Had the cartridge cases been seen before the search for them by the villagers, they could also have been thrown away. The accused's girlfriend's son pointed out what he found. Had he found the shells he could have indicated that as well in the same way.

The little boy, the accused's girlfriend's son in his deposition at PE told the court that he found the bullet and threw it away, into the forest. His colleague who was playing with him when the police asked them to look for bullet there as they play told the court that the accused's girlfriend's son told him that he found the live bullet in his house. He was told to throw it away. By who? Could it be his mother? He did not disclose the person. It is more than probable that it was his

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mother in his house who told him to throw it away. But why? At the gathering where she responded to the alarm, she said she was afraid and did not know how to start. Even when asked by Tahleho Sekatle about the finding of a bullet and the shells at her residence, she refused to tell him how they came to be there. She behaved like a person who has something to hide. What is it, that which she was trying to hide.

The young man who was shot was a student. He was twenty-four years old. He is said to be self respecting person. He also respected other people. Was he drunk? Was he mad? Why did he behave in such a bizarre fashion?. The accused's girlfriend could not tell the court if he was as tall as her or shorter than her. Even in the embrace, she could not say whether or not she smelled alcohol on his breath. Bearing in mind how fast he ran when the first shot was fired he may not have been drunk. TAHLEHO SEKATLE who had known him for a long time and had seen him in that village during schools holidays, had never seen him drink alcohol. Why then did he

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behave in such a strange manner by sneaking into someone's house at night and putting off the light once inside there? He comes out without saying a word, embraces the owner of the house as if he was affectionately acquainted with her? It is the cumulative effect of all these factors which makes the drawing of the adverse inference in evitable. Sello v Rex LAC (1980 -1984) at page 22 particularly page 24 paragraph F.

Why did he come out and embrace the owner of the house without saying a word? Why did he show such familiarity? As in Rex V. Blom 1939 A.D. 188, this accused had a motive and the opportunity. From the evidence of the accused and his girlfriend the accused exhibited his feelings of jealousy when he asked his girlfriend how can she claim not to know the person who paid her a visit. Despite being together as they claim most of their time, the accused sensed some threat of a competition. His girlfriend is somebody else's wife. The accused had no more right than any other man so he cannot claim intrusion because he was an intruder himself in another

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man's house. There was no threat to their safety, so he cannot claim self-defence though when he instructed the girlfriend to go and knock at her door, he cocked his gun in readiness to discharge the bullet. When no danger to their persons materialised he nevertheless fired shots. If he was 4-5 paces away from his girl-friend who was being embraced, he may have fired in the air the first time. But it certainly does not appear like there was any need for him to discharge his gun, the second time.

This court in drawing the inferences has ignored the remote and fanciful possibilities. Such as that the deceased MOLEMO SEKATLE is not the person who was at the accused's girlfriend's home on the night of 24th January 1997. It is fanciful to consider that the person who was at the accused's girlfriend's place ran away and like the spent bullets he cannot be found. The cumulative effect of all the various factors which weigh against the accused support the drawing of the inference that the accused shot the deceased MOLEMO SEKATLE. Sello V.

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Rex LAC C 1980 -1984) In this cage of Sello x Rex the motive and opportunity together with the evidence of indications made by Mr. Sello enabled the court to draw the inference that he was the one who killed the postman particularly because he was found to have specialised knowledge of the procedure followed to collect and deliver the post, being himself an ex-post office employee.

In this present case the accused must have shot and killed a fleeing man. The deceased was shot at the time and at the place where the accused discharged his gun. In this circumstances he is found guilty of murder as charged with a direct intent.

Coming to the second count; he pleaded guilty. He told this court that a person he described as a friend of his was passing his place. He was in a hurry. He was from Matatiele in RSA. The accused too was in a hurry to get to his girlfriend's place. This friend whose name he could not even remember left

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his pistol with him. The owner left it with the accused already cocked. He, the accused just put it in his pocket and proceeded to his girlfriend. He claims he put the safety catch on when the crown counsel questioned his purpose of going about with a cocked gun.

Although he put it in his car where he retrieved it when police asked for it when they investigated this matter, he and his friend were in such a hurry that they could not leave it in the car on the 24th January, the accused who could not find time to go into his house to put it went away to visit his girlfriend armed with it. Why could he not leave it in his van? The reason for going about with that cocked gun and the fact of being in possession of the same is a cock - and - bull - story. Since 1997 that friend has not come to claim his weapon. He had not appeared before this court either to claim it. The accused even though he was out on bail, did not bother to find and bring him to court. He decided to take a blame for possessing it without a licence.

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He had no firearm certificate. His friend gave him no firearm certificate in order to be in lawful possession of the same. The evidence of Detective Sgt. Sekhibane is to the effect that when the accused retrieved this pistol from - underneath the seat of his Datsun Van he gave it to him. It was loaded with one bullet which the police officer discharged when he tested it. He asked the accused for the firearm certificate. His explanation for failing to produce the firearm certificate was unsatisfactory. He therefore charged the accused with the crime of unlawful possession of firearm.

In this count the accused is found guilty as pleaded. The two assessors agree with me on the fact finding in this case. We are deeply indebted to the counsel for prosecution and defence for their unlimited effort to help to bring to the attention of the court all the relevant facts.

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EXTINUATION

The accused and PW1 - 'MATSEPO PANENG had a long-term love affair. They claimed to have been always together. Their closeness gave this accused some sense of responsibility towards his girlfriend. When he instructed her to approach her door and knock for the purpose of establishing the identify of person this accused had seen go into her house, he informed his girlfriend that help and protection will be provided by him should she need any of them or both. This factor, although it cannot provide him with justification for his action, it operates only to reduce his blameworthiness in respect of the crime he has been convicted of.

The accused felt obliged to assist and protect the girlfriend. He admitted that when he discharged his gun for the second time, the person from whom they expected some danger, was fleeing from them . At that stage neither him nor his girlfriend was in any imminant danger. Although he committed an error of judgement with tragic consequences, his

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erroneous belief earns him. at least a reduction of the blameworthiness for the offence committed. He believed he was scaring him even further, so that he should never ever consider coming back.

Another factor which this court found to exist is that of jealousy. The accused took his girlfriend to task when questioning her about the identity of the person who entered into her house even though she was not present when that person arrived and made a hasty entry into her house. He wanted to be satisfied that the girlfriend was expecting no other person but himself that night. He therefore acted as though he had a better claim of right to be in his lover's house than any other man. He was clearly wrong. He was not her husband. But for his belief, he is entitled to be afforded an opportunity to extinuate the gravity of his crime. It is in these circumstances that this court found that there are extinuating circumstances in this case.

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MITIGATION

All the factors which have been considered in extinuation are further taken into account in mitigation of sentence. The personal circumstances of the accused person were drawn to the attention of this court by his counsel for consideration in mitigation of his sentence. The accused's wife is not engaged in any formal employment. They have three minor children, one of which had to discontinue his education because of lack of funds to maintain him at school. The court has born these factors in mind when assessing an appropriate sentence in this case. Those three innocent people will be affected by the removal of their only breadwinner from the community although he does not seem to have been engaged in any employment himself. The court will in its power endeavour to minimise their suffering which this accused has brought upon them.

In aggravation of this sentence the first consideration is that, this accused has taken away the innocent life of a young

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man. He has no right to take anybody's life away. The deceased was a young man of twenty-four (24) years of age. He was still at school. It can be safely assumed that he was going to have a bright future had it not been for untimely termination of his life by this accused. He had no reason to take away the life of that young man. It was a clear demonstration on his part of lack of respect for others and their rights. The deceased had a right to his life. This accused has permanently denied him that.

In respect of count 11, the unlawful possession of a firearm, the accused gave most unsatisfactory explanation for his possession of the said firearm. The penalty provided by the statute must be given its full effect. Had the accused have been found to have contravened the Internal Security act but had not committed any unlawful actions by the use of the said firearm, perhaps the court would regard his contravention of the said statute not very serious. This accused was not only found in possession of unlicenced firearm but he had used the same firearm to unlawfully terminate another human being's life. He

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was not using it to look after his stock. He is not a hunter. For what reason did his so called a friend give him that gun? No reason was mentioned before this court.

The accused is therefore sentenced in the 1st count to twenty-(20) years term of imprisonment. Second count he is sentenced to 1-year imprisonment. Both sentences to run consecutively. The effective total period of imprisonment is twenty-one (21) years.

K.J. GUNI JUDGE

For Crown : Ms. Maqutu For Defence : Mr. Molefi

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