CRI/T/21/81

IN THE HIGH COURT OF LESOTHO. In the Matter of :

REX

v
NTHATISI METSING

RULING

Delivered by the hen. Mr. Justice F.X.Rooney on the
19th day of October, 1981.

Mr. Khauoe for the Crown

Mr.
Sooknanan for the Accused

On the issue of extenuating circumstances the Court has
had the benefit of an eloquent address from Mr. W.C. Maqutu.
In addition it has before it additional evidence not made available
at the trial, namely, the deposition of 'Mamoroesi Makhele
recorded
at the prepa­ratory examination held on the 6th January, 1981.
The deponent was not cross-examined and I assume that
it is the
intention of the defence who introduced this document that the
evidence should be accepted for what it is worth.

The onus is on the accused to establish the existence of
extenuating circumstances. These must be founded on facts associated
with
the crime which reduce the moral culpability of the accused. It
can be argued that a valid moral judgment is not possible without
full knowledge of the facts, A Court's knowledge of the facts of a
particular case depends on the evidence placed before it and
to the
extent that such evidence may be unreliable so the moral judgment of
a Court may be imperfect.

In the present case the task of this Court in finding a
basis upon which it may properly assess the state of mind of
the accused at the time she killed the deceased

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is made difficulty by reason of her failure to tell the
truth about what took place between her and the deceased on the fatal
evening.
In particular, the Court has no reliable information as to
what happened from the time the couple took a taxi from Mazenod until
the deceased was stabbed to death. The defence raised by the accused
has been totally rejected. It follows that this Court has
no
information as to the circumstances which arose before the stabbing
of the deceased or the motives which prompted the accused
to do such
a terrible thing.

Mr. Maqutu submitted that the accused had to
endure the unwelcome attentions of. a rejected lover at the
end of her arduous day. The deceased adopted a threatening attitude
and was armed with a knife. The accused
was entitled to take certain
precautions including the purchase of a knife for her own protection.

It is true that the deceased was seen holding a knife by
'Mamats' eliso (PW.1). In her deposition 'Mamoroesi said

"As the deceased was going out I saw that he was
holding an unclapsed knife. I asked him why he was holding a knife.
He laughed
and the accused laughed also and they left,"

There is nothing in this evidence to shew that the knife
which the accused had in his hand at that time posed any threat to
the accused
or that she considered it to be a threat. The accused
went away with the deceased willingly. She had earlier agreed to do
this
because she wanted to go to the deceased's house to satisfy
herself that he did not have another woman living there. It was
after
leaving 'Mamoroesi's house that the accused purchased a knife
at Likotsi's store.

Although the accused said in her evidence that the
deceased was very sober I am satisfied that this was false evidence
invented to
boost her proposition that the accused attacked her and
she was obliged to stab him in self-defence. 'Mamats'eliso said that
when
she met the deceased at 6.00 p.m., he appeared to be drunk. His
subsequent actions, such as the seizure of the radio and his threat
to smash it and his further threat to

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sleep with the accused in the presence of her children,
were not the words and actions of a man in his sound and sober
senses. I
am satisfied that the deceased was fairly intoxicated. He
was in a condition whore he could be managed or avoided by the
accused.
Mr. Maqutu's submissions are based upon the
assumption that the deceased was pestering the accused with his
unwelcome attentions after he had been
finally rejected by the
accused. I am not satisfied that this is in fact the case,

'Mamoroesi said that it was the accused who complained
that her lover was "married". If she wished to have
nothing further
to do with the deceased and that was her state of
mind, she had no interest in his relations with other women. On his
part the deceased
shewed marked symptoms of jealousy towards the
accused. He had been to her house and found a radio and a blanket and
he suspected
that this was an indication that the accused had formed
an association with another man.

Jealousy is a corrosive that may transform love into
hate. As I remarked at the beginning of my judgment "Whatever
happened
between the accused and the deceased on the 9th August, 1980
had its origin in their former relationship."

Mr. Maqutu submitted that something must have
happened between the accused and the deceased which triggered off the
violent attack which the
accused made upon him while they were near
the public road. I am inclined to agree with this but I do not
conceive it to be my duty
to speculate as to what this event was. The
one person who could have enlightened the Court and whose vital
interest it was to do
so has chosen to conceal the truth. She was
heard to say after she was caught "What did this man want with
me" and "Why did I put myself in temptation over
this man". These are words of remorse and I can read nothing
further into them.

This Court knows only that the accused ignored a warning
and good advice, purchased a knife and killed the deceased with it.
The
murder was perpetrated with

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great ferocity, I do not know why the accused chose to
behave in this violent manner.

I have discussed the problem at considerable length with
my assessors, but none of us is able to find, on the evidence,
that the accused has established that there are extenuating
circumstances in this case,

F.X. ROONEY JUDGE

19th October, 1981.

Attorney for the Crown : Law Office.

Attorney
for the Defendant: Mohaleroe, Sello & Co.