1
CRI/T/13/94
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
v
JABULANE DLHAMINI 1ST ACCUSED
TSELISO DLHAMINI 2ND ACCUSED
MAJOOA MOFOKENG 3RD ACCUSED
RULING ON EXTENUATING CIRCUMSTANCES-EXTEMPORE
Delivered by the Honourable Mr. Justice T. Monapathi on the 22nd day of March 1999
I have listened to submissions by Counsel. Their heads of argument will be done in writing within a day and half from now. I had to receive oral submissions because of pressure of time. I have agreed that there are a lot of things to note from my judgment which amount to extenuation. And these are the factors which the law enjoins us to take heed of. If they are extenuating we must then say so because we are enjoined by the Criminal Procedure and Evidence Act 1981 to
2
spell them out.
The definition of extenuating circumstances has been done in several cases of this court and those of South Africa. They are those factors that are not remotely connected with the acts of the accused. They must be connected with the events of the day. Even if they are legally blameworthy our investigation is to find out if they are morally blameworthy. These are the things that stand in favour of the accused. And these are the factors that should lead the Court to make investigations whether the Court is bound or not bound to impose a sentence of death. Because if there are no extenuation the Court is bound to impose the sentence of death. But if there is extenuation the Court is free to make a choice as to whether it shall impose death sentence or it shall not. This is the investigation that the Court does in every case of murder. I suppose that the Court will incline to impose a sentence of death when the killing is of a serious kind because the Court may find that there is extenuation but decide that the murder was a very serious murder deserving of the ultimate sentence.
I declare that I have found that there is extenuation. Most of this is revealed in my judgment itself. One of them is that it has been revealed in evidence that the gentlemen were drunk and starting from the first time when they got involved in the crimes themselves. That is when they were seen attending to the house of Mzaefane. I have found that there is evidence to do with the fact which I am saying have been proved that there was damage done to the house of two the gentlemen and in this we had been assisted by the evidence of officer Ntlama who even took photographs of damaged house.
I found a regrettable situation where a lot seems not to have been said. The things connected with Mzaefane, because directly in relation to the damage to those accused's house there must have been something that happened quite before that which the accused chose not to tell us which were not revealed to this Court and this things which in my thinking would appear to stand in favour of these accused if they were revealed. To me it appears to be extenuation because one must believe that something must have happened before or after this problem of Mzaefane. It could even be that Mzaefane had assaulted one of these gentlemen as has been claimed. It does not matter where it happened but something must have happened in relation to Mzaefane and the two gentlemen quite before there was the burning of Mzaefane's house.
Today I have been made aware that there could have been a reason why A3 got involved in this thing. Counsel said to me that there could have been a relation between what happened at the Local Court concerning Likeleli who was charged or against whom evidence was to be given and the gentleman A3. That Likeleli was his sister and that must have been the reason why this gentleman got involved. Although I found it difficult to see why he did not just tell us that. Incidentally I had to extract from him through his Counsel because in his mind he is not even aware or forgets that I have already made a finding that he was involved in the events at Manamela Local Court. It is in my judgment, I cannot go back against it. All I wanted to find out was why was he got involved.
I associate the events of the morning at Manamela Local Court and those (crimes) that happened in the evening and those events that happened a week before concerning the visit by A1 and his wife to P.W.11 and PW 13.1 concluded that they are related for the purpose of extenuation. It may even be that when we come to sentence that the fact that they harboured a grudge is aggravating and will
4
not stand in favour of the accused. But for the purpose of extenuation and because it can be explained by this principle of law and procedure that is contained in the law because the Criminal Procedure and Evidence Act which tells us that the standards of accused own community is the test to be used. So that these gentlemen are the kind of people who would for a period of a week tell someone that "I will find you on that day" or something like that. Meaning a date in the future and they do exactly that. The above can be compared to Basotho tribesmen who are in the mines (some of them being old people as old as the gentleman assessor) who plan for periods of months that they are going to fight in Lesotho and they do exactly that.
So that the law tell us that we must treat those people according to or through the eyes the standard of their community. This means that we must recognize that a man who lives in the very rural areas in the mountains for example would not behave like a man you will find in that urban area of Maseru. In so many respects they do not think similarly in the same ways. It should not surprise me therefore that for over a week there was a warning given by Al that something would happen at Manamela Local Court and it happened as terribly as he had predicted. Something more horrendous happened later in the evening because three people one was even a relation to two accused people, were killed. It was their own blood (son of their brother). They killed him and they killed a stranger who did not know anything about what had happened. Only Matsie was warned that she would be killed and in fact she was killed. This is the kind of people I am dealing with despite that the law tells us that we must look at them in the eyes of their community. Despite that the thing which appears to be aggravating and for the purpose of my investigation I would say that there was extenuation.
5
I may decide not to give full reasons for this my decision unless I am persuaded by Counsel's further submissions. The present reasons will be more developed when I am in receipt of heads of argument from the two Counsel. But the Criminal Procedure and Evidence Act requires me to spell out the extenuating circumstances now. One of them lest I forget is the youthfulness of the gentlemen. None of them was over twenty seven years old one of them must have been twenty at the time of the commission of the crime. I therefore find that the fact of their youth makes me to discover that there is extenuation.
I have concluded that it does not appear that there was intention in the way of what lawyers call directus. I am saying that I have concluded that there could have been recklessness but not to the extent of directus. Otherwise there was intention of this kind called dolus eventualis as lawyers speak about it. Although one would get very worried about the aspects of what happened about the heater because if one of the Accused (Al) picked up the heater, took out paraffin and doused the deceased Matsie the paraffin which caught fire, it was most probable that he only intended serious injury on Matsie. If Matsie had not died at that time there it would make her difficult to survive. My suspicion is that Matsie must have been seriously fatally injured at that time because she appeared to have taken the brunt of the assault with the spade.
What is also important is that this spade that was used did not belong to the gentlemen. It was said to have been found in Matsie's garden. So that one cannot speak of their having gone for a long distance with a spade and intending that "We are going to chop someone with this spade" or something like that. Incidentally one of them is said to have had sword, one of them of them is said to have had a stick. This sword was not discovered. This stick was not discovered. Only the
6
spade was found. My suspicion is that at this time when the police arrested them these men were very soft and sober. There was then no necessity to do anything to them.
It is a suspicion that these people almost gave themselves up except that due to confusion they could have attempted to hide. Al handed himself to the police. I am just suspecting in the favour of the other two that they did not resist when the drunkenness went down and the sober truth came out. They then saw the truth in that the whole village had risen to witness this terrible happening. It was very early in the morning when the police came and when these bodies were removed. The whole village did come up to witness these fatal assaults and including one Mathethuoe (PW 5). Mathethuoe was severely injured to the extent that she is now semi paralysed. The accused were not after Mathethuoe. But in the train of events Mathethuoe got to be injured in the serious way in which we saw her in the witness box. She was a terrible sight. I conclude by saying I do find that there is extenuation. And that I may not impose the sentence of death.
T. MONAPATHI
JUDGE