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CRI/T/39/93
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
v
SIMON SEHLOHO SEHLOHO 1st ACCUSED
MOTHIBI LETSIE RAMALUMANE 2nd ACCUSED
RULING ON EXTENUATING CIRCUMSTANCES
Delivered by the Honourable Mr. Justice T. Monapathi on the 17th day of February 1999
Having found that the two accused were guilty of the counts of murder and robbery I was addressed on the existence of extenuating
circumstances. This was in line with requirement of section 297 of the Criminal Procedure and Evidence Act 1981. I have to specify the circumstances.
Mr. Monyako for A1 described the nature of extenuating circumstances as understood by our Courts. They are those circumstances that turned to lessen or reduce the moral blameworthiness of the accused's conduct. They are those
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relevant factors connected with the accused's conduct which however should not be too remotely connected with the commission of the crime. And I have noted that the correct approach is not to take each factor in isolation but to consider the cumulative effect of all the relevant circumstances. See the case of STATE v MANYATHI 1967(1) SA 435(AD)at 439(D-E).
have also noted further that the Court has to form its own view as to whether such circumstances exist on a balance of probabilities. And that the test prescribed for judging the existence of the circumstances is a subjective one. This may mean that the Court need
not be swayed or influenced by the heinousness or the seriousness of the crime or the brutality of the act.
I agreed with Mr. Monyako that although I made a finding that the contents of the bail application (CRI/APN/14/92) need not be considered for the purpose of my judgment, I could safely consider the contents of the affidavit for the purpose of the present inquiry. This meant that I was not precluded from doing so for the purpose of considering whether it could not be reasonably possibly true that the accused used a gun on the deceased when they quarrelled over the latter's insistence that more money be paid because of additional area covered or increased use of the vehicle. That in response to that quarrel and the deceased's attitude A1, who did not own the gun and who had never before used a gun, took the gun from one Mosa and shot the deceased. The fact that the gun was later found with that Mosa went towards corroborating the circumstances as stated by the accused. Based on the declared test I had to accept that that was extenuation.
I agreed that it constituted an extenuating factor, the fact that I had found already in my judgment that the accused could only be guilty of having killed with
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legal intention or dolus eventualis as against dolus directus. This has also dictated that I record a finding that that amounted to extenuating flowing from a plethora of authorities in that regard. I would similarly so find in favour of A2 in that regard.
Mr. Khasipe submitted very briefly that the consideration of the existence of extenuating circumstances involve an inquiry of the
subjective site. See the case of REX v FUNDAKUBI 1948(3) SA 810 AD at 818 as approved in REX v LEJOETSO 1971-73 LLR, 177 at page 181 and at page 182 (A-B). I felt obliged to associate myself with the clear exposition of the aspect of subjective test as opposed to objective test, in the clear way in which Evans J in REX v LEJOETSO (supra) referring to STATE v PETRUS 1969(4) SA 85 AD said at page 182B-D:
"The legislature had in mind circumstances considered to be extenuating in the context of facts relating to the particular
offender and his crime as he committed it and not in the context of other facts which would relate to another imaginary or supposed
normal offender and his did. The question whether there are extenuating circumstances in a particular case ought not therefore to be judged for "blameworthiness" by comparison with a maginary facts of another offender."
As I saw it the same consideration could be adopted to the following submission by A2's Counsel. That it should be treated as extenuation
that the Court has found that A2 was in fact a carrier of goods for a price as his normal occupation. It was in that vein that he was touted to carry the vehicle parts for hire. He was found at his place, relaxed and not concerned with this matter at least before he was called
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into it by A1. That the Court had found him an accessory after the fact should not be overly influential. To be so would be to negate the test of subjectivity as laid down by judicial authorities.
That A2 was not involved in the original scheme should lessen his blameworthiness in the moral not legal sense. This I accepted . I concluded therefore that there extenuating circumstances and that the sentence of death by hanging would therefore not be mandatory.
T. MONAPATHI
JUDGE