IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/T/46/2010
In the matter between:-
Rethabile Mphahama Accused
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 13th Day of July 2011
1. The case against Accused consisted of 1 count of murder and 1 count of contravention of section 3 (1) 2 read with section 43 of the Guns and Ammunition Act No. 17 of 1966. The latter was not pursued. We know that the Accused has been convicted of the first offence.
2. At the close of the Crown case an application for discharge in terms of section 175 (3) of the Criminal Procedure and Evidence Act 1981 (the CP&E) was made on behalf of Accused. The application failed. Accused testified in his own defence. A verdict was returned on 13th July 2011 and Accused was found guilty of murder in dolus directus. This court is now enjoined to “state whether in its opinion there are extenuating circumstances …. and …. it may specify them”. See section 296 of the CP&E.
3. Having been found guilty of murder Accused submitted that there are extenuating circumstances that exist and also tenders the following facts in mitigation. Extenuating circumstances are “any facts associated with the commission of the crime, whose effect in the minds of reasonable persons will to reduce the moral blame worthiness of the Accused as distinct from the Accused’s culpability”. See Letuka v Rex LAC 1995-1999 at page 405 G. It was submitted on behalf of Accused that the following factors ought to be considered as extenuating circumstances in favour of the Accused.
4. The fact that liquor/alcohol was involved is a factor to be considered as from the evidence it is clear that on the date of the fatal shooting the Accused person went to a bar. He had an alcoholic beverage. Due to the fact that his drinking mates were not present he became bored hence why he called his friend whom he could not find on his cell phone. He ultimately went to Ha Tšosane where he coincidentally met his wife at the motel as discussed fully in the main judgement. Clearly Accused had imbibed alcohol on that day. It was not said he was drunk.
5. Furthermore, the compromising circumstances in which the Accused person found his wife and the Deceased in is, in itself, an extenuating circumstance. It is so because any reasonable person who finds a spouse committing adultery is a source of extreme provocation and one becomes extremely angry. This is especially when a person is in love or had an adulterous affair with another such as someone’s wife. He or she can be highly overcome by emotion as in the case of the Accused.
6. In addition, the youth of the Accused person also ought to be taken into consideration because at the commission of the offence. In 2010 he was only about 31 years of age and could not appreciate and conduct himself in a manner that a mature adult with experience in a marriage situation could conduct himself and suppress some emotions.
7. On another score the fact that it is not denied that on the fateful day the Accused person was attacked by the Deceased and in fact the court found that there was some grappling and fighting of some sort between the Accused and the Deceased is itself a source of provocation. Moreso, as this demonstrated lack of remorse by the Deceased for the infidelity with Accused’s wife.
8. Another factor was lack of premeditation or planning of the crime in the commission of the offence by the Accused which the court has already established did not exist is also a clear extenuating circumstance. Therefore, as it was submitted, these factors taken together constitute extenuating circumstances in favour of the Accused. See Letuka v Rex LAC 1995-1999 405 at page 422 where Steyn P had this to say:
“Moreover each fact may individually have little weight, taken cumulatively however they may well tip the scale in an accused’s favour when evaluated against the aggravating features which can be considered include the following:
c) Emotional conflict
d) The nature of the conflict
f) Sub-normal intelligence
g) General background
i) A lesser part in the commission of the murder
j) The absence of dolus directus
k) Belief in witchcraft
l) Absence of premeditation or planning
m)Heavy confrontation between an accused and a deceased before the murder
n) The rage of an Accused.”
See again Letuka v Rex (supra) where Steyn P. had this to say at page 423.
“Each factor must be weighed and assessed in the light of the evidence as a whole and its relevance to the conduct and state of mind of the accused, as well as cumulatively with any other factor associated with the commission of the offence.
See also Moroa-Ha-Busoe Chabeli v Rex C of A (CRI) No. 9 2000 per Smallbeger J.A. delivered on 11the April 2008.
9. I agreed, without doubt, that the factors pointed out by defence Counsel showed that there were extenuating factors. I accordingly would not impose any sentence above that of imprisonment at most.
T. E. Monapathi
For Crown : Miss Khoboko
For Accused : Mr Lepeli Molapo
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