HIGH COURT OF LESOTHO
ANDREAS Van der MERWE
by the Hon. Mr Justice M.L. Lehohla on the 15th day of May, 2001.
conviction on all counts accused 1 relied on the sole evidence of his
mother DW6 'Marefiloe Mokalanyane to adduce evidence in extenuation.
function during this phase of the proceedings is to establish on a
balance of probabilities that in respect of Counts I and II involving
the deaths of Armstrong Moeketsi and 'Mamolulela Mofolo extenuating
are factors which the Court takes into account in an endeavour to see
if the reprehensibility of the offence committed and for which the
accused has been convicted can morally speaking be palliated.
to be applied in making this determination is a subjective one.
which the Court has to have regard to in this exercise have been well
summarised by Holmes J.A. in S. vs Letsolo 1970(3) SA 476 A at pp 476
E - 477 B 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 blameworthiness of the accused, as distinct from his
legal culpability. In this regard a trial court has to consider :
there are facts which might be relevant to extenuation, such as
immaturity, intoxication or provocation (the list is not exhaustive);
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's doing what he did".
deciding (c) above the trial court exercises a moral judgment.
the Court that accused 1 is her son born on 5th January 1976. It is
common cause that this being the case simple arithmetic would put
accused 1's age in June 1995 when the offences were committed at 19
years and some odd five or so months. DW6 said that accused 1 was
lying when he said she had told him in 1999 that he was aged
twenty-five. She put down the suggestion for this lie to either
accused 1's illiteracy or stupidity. She hazzarded the guess that he
might have misunderstood her in one of the many admonitions to him
when being helped in his studies by his siblings that "look you
are so old but ignorant and are being helped by children aged such
and such coming after you"
elaborated on the personality of accused 1 as being of a highly
gullible individual, easily cheated by his siblings who would help
themselves to his food and things without protest. Friends also take
advantage of this softness on the part of accused 1 who would allow
them to take away his clothes and would not go and fetch them unless
pushed by DW6 to do so. Asked why he had given his things to his
friends his disarming answer would be that he had lent them to them.
projected the intellectual ability of accused 1 as one of the lowest
kind. She says accused 1 went as far as Std III but did not pass it.
Never in his career in
did he pass any class without repeating it twice or three times.
explained that accused 1's relationships with people outside the
family were cordial. She said he was always respectful of his elders
and if he found them at the home he would greet them respectfully.
unable to account for the behaviour of accused 1 in Court when he
referred to Dwl Tsehlana Moeketsi Sello who is by far his elder and
qualifying in my view to be his father in referring to him without
the title "ntate" that every Mosotho child does not need to
be reminded to preface an elder's name with when addressing him to
suggested that her son before Court is very forgetful. She indicated
that she kept on reminding him of his age.
addressing the Court Mr Mosito suggested two things to be considered
in trying to find that extenuating circumstances exist in this case.
The two things being, as learned Counsel submitted, youth and
accordingly referred this Court to R vs Whitehead 1970(4) SA 424 AD
436 where it is suggested that regard be had not only to the main
purpose of punishment such as deterrence, retribution etc but also to
the individual concerned and circumstances of his crime. Among
factors emphasised age also featured in the eyes of the court in the
authority of S vs Zinn 1969(2) SA at 537.
Counsel relying on the view that the question of youth goes to the
issue of mitigation stated in terms that authorities are ample that
it also informs on the question of extenuation.
of South Africa Vol 25 by W.A. Joubert et al at page 6 sets out that
"................In the case of murder a juvenile should not
normally be sentenced to death unless the act was performed as a
result of inherent vice and wickedness".
vehemently to this submission Miss Maqutu for the Crown relying on
section 297(2)(b) of our Criminal Procedure and Evidence Act No.9 of
1981 cited the provision saying :
'The High Court shall not pronounce a sentence of death by hanging
(b) against a person convicted of an offence punishable by death if
opinion of the High Court that person was at the time of the
commission of the offence under the age of 18 years, but shall
instead sentence him to be detained during the King's
emphasised that the wording of the statute leaves no doubt as to the
category of persons standing to benefit by avoiding pronouncement of
the death penalty against them; i.e. those under 18 years of age. The
accused having been 19 years 5 months was well above the age
contemplated by statute as the age he could benefit by i.e. if he was
under 18 years of age.
part I challenged my assessors to find if it can be said the accused
is entitled to a claim of "youth" as a basis for
extenuation in this case. They unanimously said they found none no
Thebe vs R LAC 1985-89 at page 48 Schutz P faced with a similar
situation had this to say :
"There remains the question of youth. I pass over the possibly
controversial question as to whether youth alone can constitute
extenuation............... A problem about treating youth alone as an
extenuating circumstance is that a line has already been drawn at the
age of 18 years. How many more lines are to be drawn? In general, I
think that youth must be weighed together with other factors. One
must have regard to the personality qualities, maturity, experience
circumstances of the youth involved.
.................It seems to me that it was not youth but a choice of
evil that set him
upon his dark course".
sought to supplement the question of doubtful factor of youth with
imbecility to which DW6 testified. Miss Maqutu for the Crown sought
to disprove this allegation. But as correctly pointed out by Mr
Mosito DW6 was not challenged in her assertion relating to the
gullibility and imbecility of accused 1. True enough the fact that
something has not been challenged in law, it has repeatedly been
said, does not have to be accepted as correct and acceptable. After
all a criminal trial is not a game where one side is entitled to take
an unfair advantage of an omission by the other. C/F Rex vs Hepworth
1928 AD 265. But if it is let pass in silence during
cross-examination only to be challenged in argument it might not be
looked upon as fair.
I have no
qualms in accepting the essential submission in Miss Maqutu's
should not overlook the judgment of Miller J.A. in S vs Ceaser
1977(2) SA 348 A where the following was said :
"A finding that a person acted from inner vice in the commission
of a crime does not imply that he has manifested vicious or wicked
propensities throughout his life; nor a long history of wickedness
necessary to such a finding".
of Mahomed and Aaron JJA in Thebe above at page 50 chime in with the
unchallenged evidence of DW6 that:
"On reading the record of the trial, the appellant comes through
as an unsophisticated, semi-literate, rural youth of below average
intelligence, and out of the main stream of the normal activities of
boys of his age".
the instant case the youth in Thebe had just graduated above 19
seem to me that youth does not necessarily mean age but immaturity
that hovers around the age of 18 years.
learned appeal Court Judges' words are worthy of attention :
"Many irrational beliefs are tolerated and encouraged by even
older men in an unsophisticated environment...................... An
offence committed in these circumstances, however heinous when
objectively perceived, reduces in some measure the moral guilt of the
Lordships further indicated
"The Court a quo took into account the youth of the appellant
but it failed to appreciate sufficiently that this was prima facie
evidence of immaturity........".
result the Court very reluctantly finds that youth in the instant
case is a sufficient factor when looked upon as indicative of
immaturity to constitute an extenuation enough to relieve accused 1
from the effect otherwise of mandatory death sentence for his
: Miss Maqutu
Accused 1 : Mr Mosito
Accused 4 : Mr. Lesuthu
Accused 5 : Mr. Mahlakeng
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