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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