CRI/T/16/93 IN THE HIGH COURT OF LESOTHO
In the matter between :
v TANKANA NKALAI
RULING ON EXTENUATING CIRCUMSTANCES
Delivered by the Honourable Mr. Justice T. Monapathi
on the 18th day of October, 1995
I agree with Mr. Ntlhoki, the defence Counsel that there
are extenuating circumstances in terms of section 296 of the Criminal
and Evidence Act 1981.
I am persuaded that the record of my judgment reveals
that there was extreme provocation brought about by the blatant
an illicit love affair by the deceased and Accused's
wife. This had carried the Accused's patience to the extreme. Not to
the misery and the desperation to which the Accused was
driven. This matter was reported by the Accused to his chief and his
/ . . .
have remarked adversely about the Accused's absence of
restraint. But this provocation still constitute extenuation.
The Accused has been found guilty of intention to kill
in the legal sense as defined in S v Mini 1963(3) SA 188 AD and
of this Court. This also constitute extenuation.
See my remarks in the Ruling on Extenuating Circumstances in R v
& Another CRI/T/18/94, 10th October 1995
(Unreported) (on appeal) and in Rex vs Rapule Makhetha CRI/T/45/93 of
21st June 1994.
This finding on extenuating circumstances therefore
enabled me to pass any sentence other than that of death on the
I agreed that there were factors that called out for a
merciful and lenient sentence on this accused person. It was clear
relationship with his wife had been an unpleasant one which
would require a lot of effort to restore to normality. It was a
of speculation as to what effect the death of deceased (the
lover) would have on this herculean task. When I asksd
the Accused as to whether he had not had a choice of abandoning his
as to forget about her. He spoke of a "great loss"
that would result if he did so. He referred to his house and
There is no doubt that the Accused greatly loved his
wife even though their marriage was not blessed with a single child.
At the age
of the Accused (which is about 46) it is not easy to start
a new family or fall into new habits. That is why the Accused said he
did not have a lot of choices. The Accused was unemployed end he was
also sickly with a bad foot. I have also remarked in my finding
extenuation that the illicit love affair "had carried the
Accused's patience to the extreme. Not to mention the misery and
desperation to which the Accused was driven."
I told the Accused, who is a first offender, that if
the law of this country allowed I would have suspended
of his sentence. (See section 314(1) of the Criminal
Procedure and Evidence Act 1981). But punish him I must for his
the life of a human being. Also as a deterrent to
others. The community expects Courts to punish offenders on this
and others. The
4 community wants to see this being done. It has to be
I accordingly sent the Accused to a period of
imprisonment of three (3) years without an option of a fine.
My Assessors agree.
18th October, 1995
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law