CRI/T/5/81IN THE HIGH COURT OF LESOTHOIn the matter of :REXv1. MOSELI MOSELI2. KOPANO KHOROROJUDGMENTDelivered by the Hon. Mr. Justice B.K. Molaion the 11th day of September, 1981The two accused before Court are charged with the crime of murder, it being alleged that :"Upon or about the 4th July, 1980 and at or near Qethane Ha Khauta, in the district of Berea, the said accused, one or the other or both of them, acting unlawfully and with intent to kill, did assault Tlali Mokhosi and inflicted upon him certain wounds or injuries from which Tlali Mokhosi died at Maluti Hospital, Mapoteng on the 5th day of July, 1980."They have both pleaded not guilty to the charge.The evidence has disclosed that on the evening of Friday the 4th July, 1980, P.W.5 Ariete Tseka was selling sesotho beer at the home of her sister-in-law, 'Mamotlalepula Tseka, who has not testified before this Court. Although she admitted that there was an accordion playing in the house in which she was selling her beer P.W.5 denied that there were people dancing or playing at that time.2/ However,
-2-However, P.W.4, Molaoli Mokotjo, a cousin of accused 1, told the Court that he was dancing or playing with many other people in the beer house as the accordion played. Indeed, accused 1 told the Court that there were people playing in the beer house and he had gone to P.W. 5's place because a music instrument was being played. In my view it would be a curious thing that an accordion was being played in a beer house full of many people and yet there was no singing or dancing in respond. P.W. 5 told the Court that the Chief of the village in which she was selling beer did not permit late selling of beer and playing of the accordion. That may account for her attempt to hide the fact that there was noise and dancing during the selling of beer on the evening in question. The evidence of P.W.4 and accused 1 is, in my view, more sensible than that of P.W.5 and I am prepared to accept it as the truth on this point.It was common cause that the two accused were present at the beer house on that evening and when he arrived accused 1 was in the company of a woman by the name of 'Mantoetse who also did not testify before this Court. After some initial hesitations, P.W. 4 admitted that he knew that 'Mantoetse was a secret lover of both accus d 1 and the deceased. Accused 1 admitted that 'Mantoetse was his secret lover and that was one of the reasons why he had gone for drinking with her on that day.While accused 1, 'Mantoetse, P.W.3, P.W.4 P.W.5 and many other people including accused 2 were at the beer house, the deceased who was a stranger to the two accused and P.W.5 arrived. P.W.5 told the Court that although at that stage accused 2 had already bought two scales of Sesotho beer she3/ was
-3-was positive that accused 1 and 'Mantoetse had not yet bought any beer from her and they appeared quite sober. That accused 1 was still sober at that time was confirmed by P.W.3 and P.W.4.who themselves had admittedly taken one or two scales of Sesotho beer and were not as yet drunk. Accused.1 however disputed the evidence of P.W.3, 4 and 5 and told the Court that he had at that stage already bought 60c worth of beer after he had spent about M4 on Sesotho beer in another village before coming to P.W.5's place. He had all the time been drinking with 'Mantoetse only and they were taking 10c scales which are larger than 5c scales. That means accused 1 had taken about 23 scales of Sesotho beer. In my view, if it were true that accused 1 had a belly to contain that quantity of Sesotho beer hewould be unable to move or talk properly. As the sayinggoes he would be "as drunk as a lord" and totally unable to know what he was doing. As it will be shown in the course of this judgment, accused 1 was perfectly aware of and able to react to what was happening around him. He may have taken some beer that day but not the quantity he wants this Court to believe he has. I have no hesita- tion in rejecting any suggestion that he was so intoxi- cated, at the time the deceased arrived at P.W5's beer house on that day, that he could not know what he was doing. Accused 2 admitted to have taken about 2 scales of Sesotho beer at the time the deceased arrived. He too claimed to have been very drunk. He was, however, able to see that other people were drunk. He clearly saw what the deceased did on his arrival. He saw the fight between the deceased and accused 1. He took the decision to go and join accused 1 in the assault on the deceased. He ran after the deceased and accused 1 to intervene by4/stopping
-4-stopping the latter from assaulting the deceased. I am not convinced that a person who was as intoxicated as he wants this Court to believe he was, can be able to do all these things. Although he may have taken about 2 scales of Sesotho beer I am convinced that he was not so drunk as not to know what he was doing.According to the evidence of P.W. 4 and P.W. 5 on his arrival the deceased entered the beer house and called at 'Mantoetse to come out with him for a talk. 'Mantoetse was hesitant to go out but the deceased grabbed and let her out of the house. A somewhat rowdy and scandalous conversation about their love affair in the Republic of South Africa took place between 'Mantoetse and the deceased on the fore-court outside the beer house. All this was confirmed by the two accused and P.W. 3, a nephew of the deceased. The squabble between 'Mantoetse and the deceased was so nasty that P.W. 5 had to go out of the beer house to put an end to it. Accused 1 himself told the Court that he was disgusted by the revelation that 'Mantoetse had another lover besides himself.Although P/W. 5 wanted to impress the Court that when he spoke to and grabbed 'Mantoetse out of the house, the deceased was in a peaceful mood, P.W. 4 noticed that accused 1 got disturbed. Accused 1 himself told the Court that he was annoyed by what the deceased was doing to his lover. This coupled with the fact that the moment they were outside the house 'Mantoetse and the deceased kicked up a row which worried P.W. 5 herself leaves me with no doubt in my mind that the deceased was not as peaceful as P.W. 5 would like this Court to believe. I accept the evidence that the deceased was aggressive as he spoke to andgrabbed 'Mantoetse out of the house.5/ When
When she came to the fore-court of the beer house where 'Mantoetse and the deceased were quarrelling P.W.5 learned from the latter that he was the maternal uncle of P.W.3 and one Khathatso who has also not given evidence before this Court. She then instructed P.W.3 and Khathatso to take their uncle away from her place. They complied. 'Mantoetse however queried P.W.5's decision to dismiss the deceased whom she claimed was her husband.According to the evidence of P.W.3 confirmed by P.W.5 and P.W.4 the deceased walked away in the company of Khathatso and P.V.3 himself without any resistance and 'Mantoetse followed them.P.W.4 told the Court that at the time the deceased spoke to 'Mantoetse and before she was taken out of the beer house accused 1 walked out of the house and went to the nearby kraals from which direction he later saw him emerging. P.W.3 confirmed that he had seen accused 1 going to and later emerging from the direction of the kraals. P.W.5 did not notice at what stage accused 1 had left the beer house. She, however, later saw him emerging from the direction of the kraals. Accused 1 denied this. I can see no sensible reason why P.W.3, 4 and 5 should fabricate against accused 1 on this point. . I accept as the truth their evidence that they saw accused 1 emerging from the direction of the kraals.As he emerged from the direction of the kraals, accused 1, with his stick raised up, was seen by P.W.4 and P.W.5 going to where the deceased and Khathatso, closely followed by 'Mantoetse, wore. This was confirmed by P.W. 3 who was, at that time, on the fore-court of the6/beer
beer house, after he had temporarily returned there to leave the scale of beer he had been holding in his hands when he complied with P.W.S's request that they should take away the deceased. Accused 1 caught up with the deceased and his party and was seen by P.W.5 and P.W. 3 hitting 'Mantoetse on the back of her body with his stick. This was confirmed by P.M.4 although according to him-Khathatso was not with the deceased and 'Mantoetse at that time, I have no doubt that P.W.4 was making a mistake here because the evidence of P.W. 3 that he and Khathatso were taking away the deceased on the request of P.W.5 was confirmed by P.W.5, the person who obviously had an interest in the deceased leaving the place and was therefore observant that the deceased in fact left the place. P.W.3 left the deceased and returned to thebeer house only to leave his scale of beer. I see noreason why Khathatso who was also willing to take the deceased away should have suddenly left him and vanished at that stage.According to the evidence of P.W.4. P.W.3 and P.W.5, the blow which accused 1 delivered on 'Mantoetse was not a hard one. The deceased who had been walking ahead of 'Mantoetse then turned round, obviously wondering what was happening. It was as the deceased turned round that accused 1 swore at the deceased and, clearly using great amount of force, delivered a blow on his forehead with the stick.At that time accused 2 came to the scene. According to the evidence of P.W.5 and P.W.4 accused 2 also came from the direction of the kraals. P.W.3, however, said accused 2 was coming from the fore-court of the beer house.7/ Whether
-7-Whether accused 2 came from the fore-court of the beer house or the direction of the kraals one thing important is that P.W.3, P.W.4 and P.W.5 all testified that, on arrival he too hit the deceased a blow with a stick on the back of the head. The deceased then started running away and was hotly pursued by the two accused.The defence version was slightly different. According to the evidence of the accused at the time 'Mantoetse and the deceased squabbled on the fore-court of the beer house accused 1 was still on the fore-court and as a result of the scandalous conversation he told 'Mantoetse that they should leave for their home. 'Mantoetse complied and the two were on their way home when the deceased followed them. When he caught up with them the deceased, who was admittedly not armed with any visible weapon, grabbed and swore at accused 1 before hitting him with an open hand on the face, complaining that he (accused 1) was the one misleading 'Mantoetse. Accused 1 got completely upset by what the deceased did. In his confusion accused 1 hit the deceased a blow on the forehead with his stick when the latter started running away. Accused 1 chased the deceased with a settled intention to drive him, once and for all, from that area. When they came behind the houses of one Daemane the deceased picked up a stone which he threw at accused 1. Accused 1 dodged the stone and as the deceased was picking up another stone to throw at him he hit him a second blow on the head with the stick. The deceased fell to the ground. Accused 1 was_still belabouring him on the ground with his stick when accused 2 arrived and intervened by holding him away from the deceased. They left the deceased lying on the ground. According to the accused,8/the
-8-the injuries found on the deceased were inflicted by accused 1 alone and accused 2 did not assault him at all.I have already accepted the evidence of P.W.3, P.W.4 end P.W.5 that they clearly saw accused 1 coming from the direction of the kraals and assaulting the deceased where he was with 'Mantoetse. I do not, even for one moment, believe the defence story that the deceased, a stranger in the village, who was not even armed with any weapon could have attacked accused 1, who was clearly armed with a stick, in the manner described by accused 1. It is just a desperate attempt to cover the truth that accused 2 also assaulted the deceased as testified by P.W.3, P.W.4 and P.W.5. I have no hesitation therefore in accepting as the truth the evidence of P.M.3, P.W.4 and P.W.5 that accused 1 joined by accused 2 assaulted the deceased, in the manner they described, before he started running away.P/W. 3, 4 and 5 told the Court that when he was thus assaulted by the accused the deceased ran passed the fore- court of the beer house and out of their view in the direction towards Daemane's houses with the two accused in hot pursuit. The chase was so frightening that P.W. 3 and P.W.4 were afraid to go to the rescue of the deceased. When she saw the deceased assaulted and chased in that manner, P.W.5 feared for his life and raised the alarm. She and two men, Letsatsi and Khathatso, followed the direction in which the deceased was chased by the two accused. Although the deceased and his assailants were out of their view P.W.5 and P.W.4 could hear the deceased screaming "Jo! I die, I die!" in the direction of Daemane's houses. P.W.5 told the Court that, apart from the screams, shecould also hear the sound of repeated blows of sticks as she approached Daemane's houses. On the way P.W.5 was met by accused 1 who was already returning from the direction of Daemane's. He was still aggressive and swore9/ at her
-9-at her before pocking her on the chest with his stick and angrily asking her where 'Mantoetse was. She replied that she did not know where 'Mantoetse was and accused 1 passed away. She remembered at that stage slightly seeing accused 2 followed accused 1 on their way back.When she came next to Daemane's houses, P.W.5 found the deceased having fallen on his face and Letsatsi and Khathatso trying to assist him to a sitting position. The deceased could neither speak nor open his eyes. He was bleeding through the mouth, the nose, the ears and had great difficulty in breathing. He had sustained head injuries which Letsatsi was bandaging with a doek to stop the bleeding. No medicine of any sort was used to treat the injuries on the deceased.P.W.3 confirmed that, after reporting to his motherwhat had happened to his uncle, the deceased, he wentlooking for him and eventually found him in a pool of bloodnext to Daemane's houses where Letsatsi, Khathatso, P.W.5 and other people were assisting him. The deceased was speechless and could not close his mouth. P.W.3 found a vehicle in which he conveyed him to Mapoteng Hospital. No additional injuries were sustained by the deceased while he was being conveyed to the hospital.At Mapoteng Hospital P.W.3 was present when the hair was cleaned around deceased's head injuries and his wounds washed before he was taken into the operating room. He noticed that the deceased had a broken jaw, multiple wounds on the head and a depression on the head above the ear. Immediately after the deceased had been taken into the operating room the medical doctor, P.W.2, arrived.10/After
-10-After a short prayer had been recited P.W. 2 ordered him and his party to leave the room.P.W.3 then returned home. On the following day which was a Saturday, he returned to the hospital only to find that the deceased had passed away. He went to report to the police at Mapoteng. He was present when the body was removed by P.W.6, a Police Officer, to T.Y. Government hospital for post-mortem examination. He accompanied the body and was the one who identified it before the medical officer, P.W.1 as that of his uncle the deceased. That was on the 8th July, 1980, On the same day he accompanied the body back to Mapoteng and then took it for burial.P.W.6 testified that on 6th July, 1930 he received a report about the death of the deceased. He went to Mapoteng mortuary where P.W.3 identified to him the body of the deceased. He noticed that the body had multiple injuries on the head and the face. Seven wounds on the head and five on the face.P.W.6 then went to accused's home where he found the two accused at a beer house with some other people. After identifying himself and explaining to the two accused that he was investigating the death of one Tlali Mokhosi (deceased) accused 1 and accused 2 handed their sticks to him, Exhibit 1, and Exhibit 2, respectively. P.W. 6 took possession of the sticks, arrested the accused and brought them to his Police Station. He confirmed the evidence of P.W.3 that he took the body of the deceased to T.Y. Hospital for post-mortem. The body of the deceased was on 8th July, 1980 identified before P.W.1 by P.W.3 as11/ that
-11-that of the deceased.The evidence of P.W.2, the medical doctor at Mapoteng Hospital, was that on 4th July, 1980 he treated the deceased and noticed the injuries on him. The deceased had multiple bruises on the head: several sculp (3) lacerations 7-10 cm, skull fracture, and broken jaw. He formed the opinion that a blunt instrument, such as sticks Exhibit 1 and 2, could have been used to inflict the injuries on the deceased and great force must have been used to inflict those injuries as the skull bones were separated. In his treatment he consentrated on the broken jaw as his patient was unconscious and the tongue could have easily slipped inside the throat thus choking him to his immediate death. With the help of his nurses the lacerations were sutured. According to P.W.2 the patient was afforded the best available treatment at the hospital and it could not have precipitated his death. The patient simply could not have survived with the injuries he had sustained. He certified him dead at 4.30 a.m. on the 5th July, 1980, the cause of death being brain damage resulting from the head injuries.P.W.1, the medical officer at the Government hospital in T.Y. conceded that on the 8th July, 1980 he performed the post-mortem examination on the dead body of the deceased. The body was identified before him by P.W. 3 as that of the deceased. He formed the opinion that death was due to brain damage and subdural haemorrhage resulting from multiple cracked and depressed fractures of the skull. He too testified that a blunt instrument could have been used to inflict the injuries on the deceased and great force must have been used. As the body was deeply frozen12/ he could
-12-he could not tell the exact date of death but in his estimation it could have occurred about 2 days prior to his examination. He noticed 5 lacerations on the scalp with total 11 stitches, abrasions on the right arm and chin. The parietal bone was cracked, The frontal bone was depressed and part of the brain could be seen. In his opinion the deceased could not have survived with the injuries on him.I see no valid reason why the evidence of P.W.2 that, notwithstanding that the best treatment available at Mapoteng Hospital was afforded to him, the deceased died as a direct result of the injuries inflicted upon him should be doubted and I am prepared to accept it as the truth.It is clear from the evidence I have accepted that at the time he was leaving the beer house the deceased was followed and assaulted by accused 1 joined by accused 2 in the manner described by P.W.3,4 and 5. The deceased was leaving the beer house on the instructions of P.W.5, the owner of the place, and it cannot be said he was doing anything wrong at that time. The accused's attack on him at that time was no doubt unlawful. It has been suggested that when accused 1 came to where the deceased, Khathatso and 'Mantoetse wore, the deceased was the first to attack accused 1 and as P.W. 3,4 and 5 were at a distance they could have missed to notice it. There is no evidence to support this suggestion. On the contrary P.W.3 and 5 were positive that the deceased had not in any way assaulted accused 1 when the latter hit him a blow with his stick. The suggestion has no basis and it is13/ therefore
-13-therefore rejected. Assuming, for the sake of argument, that the deceased did attack accused 1 as suggested by the defence it seems to me the assumption cannot take the defence case very far for there is evidence which I have accepted that when he was hit a second blow by accused 2 the deceased then started running away in the direction of Daemane's houses. That being so, the deceased was placing the accused in no danger at all and there was no need to chase and continue the assault on him. The two accused were however clearly seen by P.W.3,4 and 5 chasing the deceased in the direction of the place where he was, shortly after, found brutally assaulted. Indeed, the defence did not seriously dispute the evidence of P.W.3,4 and 5 that as the deceased ran away the two accused, armed with sticks, pursued him. The defence contention was that as he ran after the deceased accused 2's intention was to intervene by stopping accused 1 from continuing the assault on the deceased.I have accepted the evidence of P.W.3, 4 and 5 that when accused 1 started assaulting the deceased accused 2 came to them and instead of intervening on behalf of the deceased they clearly saw him joining accused 1 in his assault on the deceased. They saw the deceased then running away and the two accused following him in hot pursuit. If accused 2 really had the intention to stop accused 1 from continuing the assault on the deceased he could have easily called on him to stop or raised the alarm for people to come to the rescue of the deceased. This he did not do. After the deceased had been brutally assaulted where he was found, next to Daemane's houses, accused 2 was seen by P.W.5 following accused 1 on their14/way back
-14-way back to the beer house. In his own testimony accused 2 saw accused 1 belabouring the deceased with a stick and must have been aware that the deceased, whom he claims to have intended to rescue, was fatally injured. He did nothing to assist. Instead he returned to the beer house with accused 1 leaving the fatally injured deceased to die like a dog. This in my view, does not picture accused 2 as a person who ran after the deceased with the sympathy he would like this Court to believe he had. It seems to me highly probable that he and accused 1 continued their assault on the deceased where he was found in a critical condition next to Daemane's houses.However, apart from accused 1 and accused 2, none if the witnesses was present and, therefore, saw when the deceased was actually assaulted next to Daemane's houses. On the evidence, the possibility that accused 2 may have changed his mind and desisted from assaulting the deceased cannot be totally excluded. That granted, it must be accepted that on the evidence it has not been proved beyond reasonable doubt that accused 2 took part in the assault on the deceased next to Daemane's.Although on the evidence I am satisfied that accused 2 did assault the deceased before the latter started running away, I must have a doubt as to whether he continued the assault next to Daemane's houses. The benefit of that doubt goes to accused 2.What now remains to be considered is whether in their assault on the deceased the two accused had the requisite subjective intention. The defence has raised the special defences of intoxication and provocation.15/ The law
-15-The law governing intoxication as a special defence is the Criminal Liability of Intoxicated Persons Proclamation NO. 60 of 1938 (Laws of Basotholand Vol.11 1960 Ed.) Section 2(2) provides :"Intoxication shall be a defence to any criminal charge if by reason thereof theperson charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-(a) the state of intoxication was caused by the malicious or negligent act of another person; or(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such actor omission.."It is clear from the provisons of this section that in order to establish the defence of intoxication two requirements must be proved. Firstly: that the accused was so drunk that he did not know that what he was doing was wrong or did not know what he was doing. Secondly: that the state of his drunkeness was caused involuntarily or that it amounted to insanity.In the present case I have found on the evidence that even if the accused had taken some sesotho beer they were not so intoxicated as not to know what they were doing.. It cannot therefore, be said that the first requirement has bee proved to satisfy the establishment of intoxication as a defence within the meaning of the Proclamation. The defence of intoxication must therefore fall away on this point alone. Even if I were wrong in holding that on the evidence it has not been established that the accused were so drunk as not to know what they were doing, there was no evidence at all to suggest that the accused's16/ drunkeness
-16-drunkeness was involuntary or amounted to insanity. It follows therefore that on the evidence before the Court intoxication within the meaning of Proclamation 60 of 1938 above has not been established and cannot be relied upon as a defence in this case.-On the question of Provocation, Section 3(1) of theCriminal Law (Homicide Amendment) Proclamation NO, 42 of 59 (Laws of Basotholand V01. II, 1960 Ed.) provides :"(a) A person who(a) unlawfully kills another under circumstances which but for the provisions of this section would constitute murder: and(b) does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined and before there is time for his passion to cool is guilty of culpable homicide only."In terms of Section 4(a) of Proclamation NO. 42 of 1959 above, "provocation" is defined as :"any wrongful act or insult of such a nature as to be likely, when done or offered to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self- control and to induce him to assault the person by whom the act or insult is done or offered."I have accepted the evidence that accused 1 and the woman, 'Mantoetse were lovers and going together when they arrived at P.W.5's beer house. I have also accepted the evidence that when he arrived at the beer house the deceased, a stranger in the village and another lover of17/'Mantoetse
-17-'Mantoetse, but most likely unknown to accused 1, aggressivelytalked to and grabbed 'Mantoetse out of the beer house wherethey had their scandalous conversation. In my view deceased'sconduct was provocative. It has been argued that even ifthe conduct of the deceased were provocative it wouldnot constitute provocation to accused 1 within the meaningof the Proclamation for the reason that 'Mantoetse wasnot his wife and the two did not fall within any of therelations mentioned under Section 4(a) of the Proclamation.I am not convinced that as enumerated under the provisionsof section 4(a) the relations of people who can be provokedare exhaustive. If one were to put oneself in the shoesof accused 1 it would not be so difficult to understandthat the conduct of the deceased under the circumstancesmust have been provocative to him.Under the provisions of Section 3(1)(6) for provo- cation to reduce murder to culpable homicide the accused must have acted in the heat of passion caused by sudden provocation and before there was time for his passion to cool. In the present case however there is evidence indicating that when the deceased by his conduct provoked accused 1 the latter was not so provoked as to be unable to control himself. He went out of the house and was seen walking to the kraals which were some distance away. He later emerged from the direction of the kraals and walked another distance to reach the place where he started assaulting the deceased. He cannot therefore be said to have acted in the heat of passion by sudden provo- cation and before there was time for his passion to cool. Provocation cannot therefore be relied upon in this case.18/ The
-18-The sticks, Exhibit 1 and 2, with which the accused were armed on the day in question were the heavy type wrapped with black tapes normally carried about by men from the mines in this country. The two accused were positively seen by P.W.3 and 4 using these sticks in their assault on the deceased before the latter started running away. The head of a human being is a particularly vulnerable part of the body and in hitting the deceased hard blows on the head with sticks such as Exhibit 1 and 2 the accused, to say the least, clearly had the legal intention to cause him grievious bodily harm.In his own evidence accused 1 told the Court that when he overtook the deceased next to Daemane's houses he belaboured him even after he had already fallen to the ground and was completely defenceless. That he hit the deceased several blows on the head is perfectly consistant with the medical evidence according to which the deceased had sustained multiple head injuries as a result of which death resulted. Having regard to the heavy stick used by accused 1 in his assault on the deceased; the amount of force applied to inflict the injuries on the deceased and the numerous wounds actually inflicted on the deceased's head, there is no doubt that in assaulting the deceased in the way he did accused 1 was embarking on an act which was likely to kill and he knew was likely to kill the deceased. He was nevertheless reckless whether death will ensue. As it was stated by Hoexter J.A. in S. v Mini, 1963(3) S.A. 188 :"A person has the necessary intention to kill if he appreciates that the injury which he intends to inflict19/ on
-19-on another may cause death and nevertheless inflicts that injury, reckless whether death will ensue or not."I have no doubt in my mind that in the circumstances of this case accused 1 had the requisite intention to kill, if not direct at least legal.In the premises I have no alternative but to find accused 1 guilty of murder as charged. Accused 2 is found guilty of assault with intent to do grievious bodily harm.My assessors agree.EXTENUATING CIRCUMSTANCES :The Court has already found that accused 1 is responsible for the unlawful and intentional killing of the deceased, Tlali Mokhosi. What now remains to be determined is whether or not, on the evidence, there are circumstances which serve to diminish the moral blameworthiness of accused 1 for his conduct.It is trite law that in determining the issue of extenuating circumstances, nothing which in fact influencedthe accused's mind or emotions and thus his conduct should be ruled out of consideration even if it were unreasonable for him to be so influenced.In the present case I have found, on the evidence, that in aggressively talking to and grabbing 'Mantoetse out of the beer house the deceased, a stranger in the area, was conducting himself in a provocative manner to accused 1, who admittedly was a lover of and going along with 'Mantoetse. Although I have rejected the20/ defence's
-20-defence's contention that accused 1 had consumed the quantity of sesotho beer he wished this Court to believe he had, I accepted that he had been drinking on the day in question and his state of mind was naturally affected to some degree.I have rejected the argument that, on the evidence, the provocation which had been offer to accused 1 and the quantity of beer he might have consumed on the 4th July, 1980 were such as to serve as a defence to a charge of murder. They are,however, facts to be properly taken into account for purposes of extenuating circums- tances. I have, therefore, taken them into account and come to the conclusion that extenuating circumstances tending to reduce the blameworthiness of accused 1 do exist in the present case. The verdict in respect of accused 1 should, therefore, be the one of guilty of murder with extenuating circumstances and it is accordingly found.My assessors agree.SENTENCE:Mr. Maope for the Crown points out that the two accused have no previous convictions.In mitigation Mr, Sooknanan, for the accused,informs the Court that accused 2 has been in custody since the 6th July, 1980; be is married with two children; and has most certainly lost his work in the Republic of South Africa.Accused 1 has spent 10 months in custody before he21 / was
-21-was released on bail; a civil action for compensation is most likely pending against him as a result of the deceased's death; and the two accused have been most co-operative with the police.The Court takes into consideration the points that have been raised on behalf of the accused. However, the offences with which the accused have been convicted in this case are serious and, in my view, merit equally serious sentences if a repetition of the type of counduct of which they have been convicted were to be avoided. In the circumstances I come to the conclusion that the following sentences are appropriate.Accused 1 : Eight (8) years imprisonment.Accused 2 : Three (3) years imprisonment, to runretrospectively from the 6th July, 1980, the date on which he was detained in custody.ACTING JUDGE.11th September, 1981.For the Crown : Mr. Maope For the Defence : Mr. Sooknanan