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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

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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

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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.

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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

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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