C OF A
(CRI) 2 OF 1992

IN THE
COURT OF APPEAL OF LESOTHO

Held at
Maseru

In the
matter between:

TLALI
SERINE APPELLANT

V
REX
RESPONDENT

Coram:

Mahomed
P.

Kotze
J.A.

Steyn
J.A.

JUDGMENT
Mahomed
P.

The
appellant was found guilty by the Court a quo, of murdering the
deceased MAMOKHOTLONG LEBOTA. No extenuating circumstances were
found
and the sentence of death was consequently imposed by Lehohla J.

An appeal
to this Court was subsequently noted against the sentence of death
only, on the grounds that the trial judge had erred
in finding that
no extenuating
circumstances existed. It was correctly conceded
that the appellant had on the evidence, been properly found guilty of
murdering
the deceased.

2

In his
argument in support of the attack on the sentence imposed on the
appellant, Counsel for the appellant further conceded that
the Court
could not interfere with the finding of the trial Court on the
absence of extenuating circumstances, merely because the
members of
the Appeal Court would have taken a different view, if they had been
sitting as the trial Court. This concession was
correctly made. There
is a discretionary
component in the assessment of extenuating
circumstances. The Appeal Court is entitled to interfere with the
exercise of such a
discretion by the trial Court only if
it has
not properly been exercised; if the trial Court has misdirected
itself in coming to its conclusions in this regard or has
committed
some irregularity in the process;
or if its conclusion in this
regard, is one which no Court could reasonably have come to in the
circumstances ((S v Manyathi 1967
(1) SA 435 (AD); S v Bowers 1971
(4) SA 646 (AD) (The powers of the Appellate Division in South Africa
in this respect, have recently
been substantively extended by
statutory amendments to the relevant legislation in that country, but
no such amendments have yet
been effected to the comparable
legislation in Lesotho - S v Masina and Others 1990(4) SA 709 (AD).

Did the
trial Court in the present case misdirect itself in coming to the
conclusion that there were no

3

extenuating
circumstances? I think it did.

Crucial
to its conclusion was the finding that the crime was "pre-meditated"
. Its reason for this finding was expressed
by Lehohla J. as follows:

"From the manner of its execution and the plan that was employed
to avoid detection it seems this crime was pre-meditated."

The
"manner of execution" adopted by the appellant was indeed
brutal. The deceased was killed by hitting her with stones.
But there
is nothing in the evidence to establish that the appellant had
planned the killing by anticipating the path which the
deceased would
be taking on the day of her death, by positioning himself at a
convenient time and place on this path so as to maximize
his ability
to kill the deceased without too much risk of being seen and by
arming himself with stones for this purpose.

The
evidence of the Crown suggested that the path traversed by the
deceased was not one which she normally or habitually traversed.
She
was on her way to the home of PW1 Motinyane Rabukana who had
suggested that she spent the night at his house, which was nearer
the
Local Court, before whom she was due to give evidence the next day.

4

There was
no evidence that the appellant was aware of this arrangement or that
he knew that the complainant would be going to the
house of PW1 on
that day or the time at which she would be doing so.

On the
contrary the appellant's own testimony was that he was coming from
his sister's place when he accidentally encountered the
deceased who
happened to be
going in the same direction. There is nothing in
the evidence to show that this was not true.

The
second reason given by the trial Judge for the finding that the crime
was "premeditated" was the alleged "plan
to avoid
detection". There was undoubtedly evidence that after the
deceased had been killed, the appellant sought "to
avoid
detection" by attempting to submerge her body under some stones
by leaving it in a condition which might cause others
to believe that
she had been the victim of a robbery and by avoiding arrest himself.
None of these facts, however, justify the
conclusion that the crime
was "premeditated". They are perfectly consistent with the
conduct of a man, who did not "plan"
to kill the deceased
in advance, but who sought to avoid the consequences of his unplanned
actions, by subsequent strategems designed
to avoid detection.

5

The
finding of "premeditation" which clearly, substantively and
understandably influenced, the conclusion of the trial
Judge that
there were no extenuating circumstances, was based on demonstrable
misdirections. This Court is therefore at large to
consider whether
in the circumstances disclosed by the evidence, a finding that
extenuating circumstances existed is justified.

This
involves the following further enquiry:

1. Whether
   there were at the time of the offence, circumstances which could
   have influenced the appellant's mental faculties or state
   of mind.
   If so

   
   

2. Whether
   such factors did subjectively influence him.

   
   

3. Whether
   these subjective influences did, according to the objective
   assessment of the Court, render the offence of the appellant
   less
   blameworthy (S v Mongesi and Another 1981(3) S.A. 204 (AD) at 207).

   
   

On a
proper assessment of the cumulative effect of

6

all the
relevant circumstances, I am of the view that the answer to all these
three questions, must on the probabilities, be in
the affirmative.

The
appellant is an unsophisticated and semi literate farmer with some
peasant livestock. He was a man of modest means who had lived
all his
life in a rural
community as a herdboy. When the deceased had
apparently been negligent in discharging her duties as a shepherdess,
the appellant
had become sufficiently upset to impose some form of
corporal punishment on her. This had provoked litigation in the Local
Court
and the appellant had feared that this would result in the
forfeiture of his livestock. He was terrified by this prospect
because
the livestock represented his sole means of livelihood.
Rumours abounded in the village about the disaster which
might
overtake him. Confused and frightened he wandered to the
house of his sister, on the day before the day nominated for the
civil
case, which had become so ominous in his
mind. His judgment
must to some extent have been affected by his emotional state. He
says that he consumed three "scales"
of Sesotho beer and
two "joints" of dagga (recommended to him as a cure for
some chronic condition akin to epilepsy which
lead to fainting
spells).

The
combination of these factors must have rendered

7

him in an
emotionally vulnerable condition with some impairment of his
judgement and his capacity fully to discipline and control
his
emotions. It was in this condition that he encountered the deceased
whom he probably perceived to be the source of his distress.
He
enquired from her where she was going. Her reaction was in effect
that that was not his business.

Such a
reaction would not ordinarily provoke any violent reaction in a
reasonable and normal person. In the vulnerable and confused

condition, the appellant was however, it appears to have acted as a
catalyst, to create a state of emotional turbulence, impacting
on his
control and unleashing violence with a ferocity which led to
the
tragic death of the deceased.

The
impact of such a rapid synchronisation and escalation of influences
on the conduct of the appellant, in my view diminishes the
moral
guilt of the appellant in
the commission of offence, which remains
undoubtedly very serious, but does not merit the extreme punishment
of death.

What it
does merit is a very long term of imprisonment which will give proper
expression to the legitimate expectations of the community
of which
the

8

deceased
was a member, and to project the message to others who might find
themselves in the position of the appellant, that the
Courts of this
Kingdom, will
sedulously respect the sanctity of life and that
they will vigorously punish those who seek to invade it without
lawful justification.

In the
result I order that

1. The
   conviction of the appellant on the charge of murder is confirmed.

   
   

2. The
   sentence of death imposed by the Court a quo is set aside
   and
   substituted by a sentence of imprisonment for a period of 20
   years.

   
   

I.
MAHOMED

PRESIDENT
OF COURT OF APPEAL

I agree

G.P.C.
KOTZE

JUDGE OF
COURT OF APPEAL

9

I agree
J.H. STEYN

JUDGE OF
COURT OF APPEAL

Delivered
at Maseru this 20th day of July 1992.