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.