HIGH COURT OF LESOTHO
NTOBO 1st ACCUSED
WAHAB ABUBAKER 2nd ACCUSED
YAN 3rd ACCUSED
ABUBAKER 4th ACCUSED
by the Honourable Mr. Justice M.M. Ramodibedi on the 13th day of
found A1 (hereinafter simply referred to as the accused) guilty of
murder the Court is now enjoined by Section 296 (1) of the Criminal
Procedure and Evidence Act 1981 to determine whether or not there are
extenuating circumstances in this matter. That Section simply reads
"296 (1) Where the High Court convicts a person of murder, it
shall state whether in its opinion there are any extenuating
circumstances and if it is of the opinion that there are such
circumstances, it may specify them.
In deciding whether or not there are any extenuating circumstances,
the High Court shall take into consideration the standards of
behaviour of an ordinary person of the class of the community to
which the accused belongs."
297 (3) also bears reference. It provides as follows:-
High Court may impose any sentence other than death upon any person
convicted before or by it of murder if it is of the opinion that
there are extenuating circumstances."
on what constitutes extenuating circumstances are legion but, in my
view, the most comprehensive definition of such circumstances as well
as the proper approach to be adopted by the trial court is that of
Holmes JA in S. v Letsolo 1970 (3) SA 476 (A) at 476-477. The learned
Judge's remarks require quotation in full as follows:-
"Extenuating circumstances have more than once been defined by
this Court as any facts, bearing on the commission of the crime,
which reduce the moral blameworthiness of the accused, as distinct
from his legal culpability. In this regard a trial Court has to
there are any facts which might be relevant to extenuation, such as
immaturity, intoxication or provocation (the list is not
such facts, in their cumulative effect, probably had a bearing on
the accused's state of mind in doing what he did;
such bearing was sufficiently appreciable to abate the moral
blameworthiness of the accused in doing what he did.
deciding (c) the trial Court exercises a moral judgment. If its
answer is yes, it expresses its opinion that there are extenuating
opinion having been expressed, the trial Judge has a discretion, to
be exercised judicially on a consideration of all relevant facts
including the criminal record of the accused, to decide whether it
would be appropriate to take the drastically extreme step of ordering
him to forfeit his life; or whether some alternative, short of this
incomparably utter extreme, would sufficiently satisfy the deterrent,
punitive and reformative aspects of sentence. The possibility of such
an alternative should be considered by the trial Judge, in view of
the words "the court may impose any sentence other than the
death sentence" in the proviso to sec. 330 (1) of the Code (our
Section 297 (3)). And it should be weighed with the most anxious
deliberation, for it is, literally, a matter of life and death. Every
relevant consideration should receive the most scrupulous care and
reasoned attention; and all the more so because the sentence is
unalterable on appeal, save on an improper exercise of judicial
discretion, that is to say unless the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate."
case (supra) has been followed in several cases in this country but
the locus classicus on the issue of extenuating circumstances is no
doubt the decision of the Court of Appeal in Tahleho Letuka v Rex
1997-98 LLR&LB 346 per Steyn P.
remarks of Schreiner JA in R v Fundakubi and Others 1948 (3)SA 810
(A) at 818 bear reference because of their undoubted importance in
determining the existence or otherwise of extenuating circumstances.
The learned Judge said the following:-
"But it is at least clear that the subjective side is of very
great importance, and that no factor, not too remote or too faintly
or indirectly related to the commission of the crime, which bears
upon the accused's moral blameworthiness in committing it, can be
ruled out from consideration."
upon the above mentioned principles that I approach this matter.
requires to be mentioned at the outset that the accused has not led
any evidence in extenuation at this stage of the proceedings. He 5
relies on such extenuating circumstances as may be found from the
record of proceedings in the principal case leading to his
conviction. He is, in my view, fully entitled to adopt this approach.
It is indeed trite law that the fact that an accused person fails to
give evidence in extenuation does not preclude a Court from examining
the evidence as a whole in order to determine whether there are such
circumstances. See for example S v Shoba 1982 (1) SA 36(A) at 40 F-G:
S v Rammutla 1992 (1) SACR 564 (BA) and Tahleho Letuka v Rex (supra)
at 360, 361 and 365.
laid down by the Court of Appeal in Tahleho Letuka v Rex (supra) at
362 the Court bears an over-riding responsibility to ensure that the
enquiry as to the existence or otherwise of extenuating circumstances
is conducted ''with diligence and with an anxiously enquiring mind."
That, of course, is an approach that not only binds me but an
approach which I am happy to follow.
further important principle remains to be mentioned in determining
the question of extenuating circumstances and it is that the
must also have due regard to the existence of aggravating
circumstances, where such be the case. It is on this issue that I
propose to commence the enquiry at hand.
to what follows hereinunder, the evidence suggests that the deceased
was killed for a reward. That being so, and again subject to what
remains to be stated shortly, the accused fits the description of a
hired killer. At any rate, the Court has already found that the
killing of the deceased was pre-meditated. In my view these are no
doubt aggravating circumstances which I have duly taken into account
in deciding whether or not there are extenuating circumstances.
requires to be emphasized at this stage, however, that, in respect of
hired killers, the death penalty is not automatically the only proper
sentence. In a fitting case exceptional circumstances may lead the
Court to conclude that there is no proper sentence other than death
notwithstanding the fact that, as was said by Goldstone JA in S v
Mabaso and Others 1992 (1) SACR 690 (A) at 694, "hired killing
fills any decent
with revulsion and loathing". See also S v Dlomo and Others 1991
(2) SACR 473 (A) at 477-478 where the same learned Judge correctly
remarked that "any decent member of society will instinctively
and roundly condemn the hired killer " It all depends on the
particular circumstances of each case and one must hasten to say that
in both S v Dlomo & Others (supra) and S v Mabaso & Others
(supra) no exceptional circumstances were found hence the accused
were condemned to death. Indeed, without deciding the question of the
constitutionality of the death sentence, it is, I suggest, of utmost
importance to bear in mind Section 5(1) of the Constitution of
Lesotho which enacts that "every human being has an inherent
right to life" and that "no one shall arbitrarily be
deprived of his life.'' This is a fundamental human right guaranteed
and protected in the Constitution and, in my view, it underpins the
very sanctity of human life.
true to say that subsection 5 (2) of the Constitution makes the
killing of a person in execution of the sentence of death imposed by
a court in respect of a criminal offence under Section 296 of the
and Evidence Act 1981 an exception. As the law stands, such a killing
is lawful. Be that as it may, I consider that the death sentence
should only be imposed in the most exceptional cases where there are
no prospects of reformation and where the objects of punishment such
as deterrence, prevention, rehabilitation and retribution would not
properly be achieved by any other sentence. See S v Makwanyane 1995
(3) SA 391 (CO at 418. Again each case must obviously depend on its
then to the facts of this case as gleaned from the record of
proceedings in the principal case.
accused is a first offender who, it would seem, has never clashed
with the law before for a period spanning 35 years. This is no doubt
commendable and it gives the Court the necessary confidence that he
is likely to reform. Without in any way minimising the seriousness of
the matter and in the absence of evidence to the contrary, I shall
assume in his favour that, as a first offender, he is a "fallen
anger as opposed to
incorrigible rogue. In my opinion this lessens the moral
blameworthiness of the accused and, as such, constitutes an
also taken into account the fact that the accused was admittedly very
cooperative with the police investigation and that it was through his
full cooperation that he freely and voluntarily led the police to the
murder weapon Exh "1" and the black bag Exh "8"
which he had been carrying on the day of the murder. These exhibits
provided material corroboration in the Crown case. In my view, these
factors show some measure of remorse and thus reduce the moral
blameworthiness of the accused. It was no doubt in keeping with the
accused's cooperativeness that at the close of the Crown case Mr.
Phoofolo told the Court that the accused would merely make an unsworn
statement as opposed to evidence on oath. He could not, as I see it,
bring himself to lie on oath. It was only after a change of counsel
that the accused finally gave evidence which sought to contradict
what has been said above with regard to his production of the
then the question of the accused's general background. I have taken
this factor into account as an extenuating circumstance. See Tahleho
Letuka v Rex (supra). He is an unsophisticated young man aged 37
years old coming from a rural background at Mazenod. As I watched him
throughout this long trial lasting for more than a whole year he has
struck me as a simple rural peasant of low intelligence. He is an
ordinary taxi driver with limited education. Infact he is a drop-out
who left school prematurely because his parents could no longer
afford his school fees. This was in 1982. He got employed in the
mines in South Africa for six years and was retrenched. Back in
Lesotho he worked as a taxi driver from 1989 drifting from one taxi
employer to another in seemingly endless dismissals until he finally
settled as a taxi driver under the employment of Thelingoane 'Mota.
He did not earn a regular monthly salary but only got paid according
to the number of passengers he carried.
follows from all of these factors in the preceding paragraph, in my
judgment, that the accused has a very unstable general background
serves to diminish the moral blameworthiness of his conduct.
my opinion, is an extenuating circumstance.
consider further that probabilities are that these factors would, in
my view, render the accused susceptible to manipulation by others
more especially his boss Thelingoane cMota who, as will be recalled,
was supposed to give evidence as an accomplice but turned against the
Crown at the door step so to speak.
again taken into account the fact that even though the conspiracy was
to kill all the three Indians in the deceased's family the accused
and his co-conspirator did not kill the deceased's wife and thus did
not compound the murder. Some measure of compassion, obviously crept
in the mind of the accused. In my view this reduces the moral
blameworthiness of the accused notwithstanding his heinous act.
I have taken into account the fact that the accused did not compound
the murder by helping himself to the large amount of cash that
the open safe at the deceased's house. Once more I consider that this
reduces the moral blameworthiness of the accused's conduct.
factor that I have taken into account as reducing the moral
blameworthiness of the accused in the crime is the fact that there is
no evidence to show that he actually received any payment at all
either before or after the killing of the deceased. There was only a
promise and nothing more. In this regard it will be recalled that
lack of payment is one of the reasons that prompted the accomplice
PW3 Khopiso Kholumo Sempe himself to back out of the conspiracy and
to spill the beans. Thus, although the Court has given the accused
the tag of "a hired killer," this must obviously be
qualified to the extent that there is no evidence that the accused
gained any financial reward for the killing after all.
next with the role played by the accused. Mr. Nel for the Crown
submits that the accused played a leading role. I regret to say that
I cannot agree with this submission. There is certainly no evidence
on record that the accused played a leading role or that he was the
worst for the accused all that can be said against him is that he
played an active role but even that has to be viewed in context. I
say this because by its very nature, the conspiracy in this case no
doubt emanated from the rival Abubaker family on the Crown's own
version. That being so, it seems to me that the conspiracy involved a
much larger picture than the Crown was able to prove. I consider, not
only as a matter of logic and common sense, but also as a matter of
an inescapable inference that there were principal initiators or role
players and that the accused was only involved at the recruiting as
well as the execution stage. He was not the only one involved in the
recruitment for that matter. Various people were active in the
recruitment as for example the accomplice PW3 himself was involved in
the recruitment of Chaisa and so was Sekete, Seeiso, the unidentified
Chinese and the rival Abubakers.
I have set out above is not mere speculation, is borne out by the
list of names in the original indictment itself. Apart from the two
Abubakers, A2 and A4, as well as the Chinese A3 the original
indictment contained the names of Motlatsi Maoeng (A3) and Sekete
whom were active co-conspirators and so was Kid Seeiso as well as
Maoeng and Sekete Mopeli apparently absconded and could not face
prosecution along with the accused. Sekete was heavily implicated in
the case. As previously stated, another name was that of Thelingoane'
Mota who featured in the old indictment as a co-conspirator and
evidently as an accomplice witness. In my view, it seems highly
unlikely that the accused could have played a bigger role than his
own boss and employer Thelingoane 'Mota. In any event my "anxiously
inquiring mind" reminds me, and indeed the record will show at
pages 3- 5, that in his opening address Mr. Nel for the Crown
informed the Court that the conspiracy started with the two Abubakers
whose father had been killed ten years before and that A3 was the
next person to be involved followed by "the Crown witness."
The latter then recruited the accused.
Mr. Nel did not mention the name of the ''Crown
in question I have little doubt that it was Thelingoane 'Mota who, as
I have said earlier, featured in the indictment as a co-conspirator.
At that stage PW3 Khopiso Kholumo Sempe had not yet been involved. It
will be recalled that he was only subsequently recruited by the
accused himself. It was Thelingoane 'Mota himself who admittedly hid
the murder weapon Exh "1" inside a scrap car in his own
yard. Indeed I accept the submission made by Mr. Sello on behalf of
the accused that in a matter such as this, the Court cannot ignore
the ranking of the plotters, co-perpetrators or socii criminis. Nor
can the Court ignore the fact that Thelingoane 'Mota stands in a
position of authority over the accused as the latter's employer. His
influence over the accused is self-evident.
the case may be, however, the real point I am endeavouring to
highlight is that the Crown has failed to prove who were the
principal movers and leading role players in the crime. Nor has the
Crown told the Court as to the whereabouts of the co-perpetrator who
accompanied the accused when the deceased was killed. He may well be
mover or principal offender himself just like the other persons
mentioned above. Which brings me to the case of Maliehe and Others
vRex 1997-98 LLR&LB 168. (Also reported in 1997-98 LLR 506).
Maliehe's case (supra) the Court of Appeal expressed itself, per
Browde JA, in the following remarks which have weighed heavily with
"It would also in my view be unconscionable were accused No. 2
to be sentenced to death where the prime mover, Mothobi, is not
before Court and the actual killer, already described as cold blooded
and without conscience, got scott free." (Emphasis added).
from the fact that the accused was present when the deceased was
killed, these remarks are apposite to the instant case. I may add,
significantly, that the Crown was unable to prove who actually pulled
follows from the aforegoing considerations, in my opinion, that the
cumulative effect of the factors fully set out above had a bearing on
accused's conduct and that bearing was sufficiently appreciable to
abate or lessen the moral blameworthiness of the accused in the
commission of the offence. Undoubtedly the offence is extremely
serious but it does not merit, in my opinion, the extreme sentence of
result I have come to the conclusion that there are extenuating
circumstances in this matter and that it would be inappropriate in
the particular circumstances of this case to take the drastically
extreme step of ordering the accused to forfeit his life. The verdict
against the accused on Count I is hereby accordingly recorded as
"guilty of murder with extenuating circumstances."
Crown: Mr. Nel
Accused: Mr. Sello
It is now
the onerous task of this Court to pass an appropriate sentence in the
particular circumstances bearing in mind the seriousness of the case.
Most of the relevant mitigating factors in favour of the accused have
already been canvassed in the Court's ruling on extenuating
circumstances and it is strictly unnecessary to repeat them here. I
desire only to say that I have duly taken them into account in
determining an appropriate sentence that will meet the ends of
justice with particular reference to the main purposes of punishment
namely deterrence, prevention, reformation/rehabilitation and
retribution. Although each purpose is important in its own right I
consider that, in a case such as this, deterrence merits more
emphasis in order to make an impression upon others, and thus
discourage them from committing similar acts. That notwithstanding,
however, I shall bear in mind the salutary principle that punishment
must be tempered with mercy.
taken into account all that both Counsel have submitted on
question of a proper sentence. In particular I have taken the
accused's personal circumstances into account. He is married with two
minor children. He is the bread winner. As I have previously stated,
he is a first offender. He deserves to be given an opportunity to
reform rather than be broken. I have also taken into account the fact
that the accused has spent two and half (2/2) years in custody whilst
awaiting trial. Mr. Sello recommends not more than 20 years
other hand it requires to be emphasised that this Court believes in
the sanctity of human life. The unlawful taking away of human life
deserves to be punished adequately. More so in the circumstances of
this case where the killing of the deceased can be described as
brutal, callous and heinous.
taken into account the aggravating circumstances in this case
particularly the fact that this was a premeditated murder for a
reward. Elsewhere I have described the accused as a "hired
killer" although with some qualification in view of the fact
that there is no evidence that he
actually paid at all. The deceased was killed execution-style in his
own house. He did not deserve to die like that and his family and
beloved ones did not deserve to lose him in that manner. It is for
that matter outrageous that the accused and his co-perpetrator
pretended to be messengers of Court with a mission to serve summons
on the deceased. This was no doubt a dirty plot in order to gain
access to the unsuspecting deceased. Mr. Nel recommends not less than
20 years imprisonment.
little doubt in my mind that no civilised society will tolerate the
kind of conduct perpetrated by the accused. As previously stated,
such conduct fills any decent person with revulsion and loathing. The
accused must therefore brace himself to square his account with
society. The interests of society undoubtedly demand that a man like
the accused must be put away for a long time as a protection against
it is always difficult to make comparisons of cases when it comes to
sentence due to the fact that each case depends on its own
circumstances, I consider that Maliehe's case (supra), where accused
Nos. 1 and 2 were sentenced to 20 years imprisonment each as a
starting point, was less serious than the instant case. The latter
therefore merits a heavier sentence. This is mainly so because in
Maliehe's case the Court of Appeal was satisfied that the evidence
pointed to "great frustration amongst the employees of the Bank"
including the accused. The deceased, Toloko Kimane, who was the
Manager of Barclays Bank was perceived by the employees including the
accused as a stumbling block to their strike action. All of these
cannot be said of the accused in the instant case. He simply killed
for a promise of a reward. His action bears the hallmark of pure
greed and it is this factor that must no doubt be revolting to
society which is, in turn, entitled to adequate protection.
things being considered, the most appropriate sentence that I can
think of in the particular circumstances of this case is one of
twenty-five (25) years imprisonment on Count I.
the accused is sentenced as follows:
COUNT I :
Twenty-five (25) years imprisonment.
: Five (5) years imprisonment.
III: Five (5) years imprisonment.
on Counts II and III shall run concurrently with the sentence on
of December 2001
Crown : Mr. Nel
Accused (A1) : Mr. Sello
considered the evidence of the accomplice witness PW3 Khopiso Kholumo
Sempe and I am satisfied that he fully answered to the satisfaction
of the Court all such lawful questions as were put to him.
Accordingly he is discharged from all liability to prosecution for
the offence concerned in terms of Section 236 (2) of the Criminal
Procedure and Evidence Act 1981.
firearm Exh "1", 9 mm Luger M80 Serial Number Bl 1850 is
forfeited to the Crown.
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