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Mminakgomo v The State (Criminal Appeal No. 50 of 1996 ) [1996] BWCA 36; [1996] B.L.R. 665 (CA) (17 July 1996)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 50 of 1996
High Court Cr. Trial No. 11 of 1994
In the matter of:
OTHUSITSE MMINAKGOMO
Appellant
vs.
THE STATE
Respondent
T. Joina for the Appellant R. S. Busang for the State
JUDGMENT
Coram: A. N. E. Amissah, J.P. P. H. Tebbutt, J.A. W. L. K. Cowie, J.A.
COWIE. J.A.
On 12th November 1995 the appellant was convicted in the High Court at Lojjatse of two offences. The first was unlawful wounding, contrary to Section 233 (a) of the Penal Code (Cap 08:01) and the second was murder, contrary to Section 202 of the said Code. The Trial Judge after being addressed by Counsel for the Appellant found that there were no extenuating circumstances in the case to warrant the imposition of any sentence other than the death sentence in respect of the murder charge and accordingly he imposed that sentence.
The Appellant appealed to this Court against both conviction and sentence on the murder charge, but at the hearing before us his Counsel abandoned the appeal against conviction, and only
2
persisted with the appeal against sentence, arguing that, in the circumstances of this case, the Trial
Judge had erred in finding that there were no extenuating circumstances which justified him in
imposing a sentence other than the death sentence in terms of Section 203 (2) of the said Penal
Code. That Section is in the following terms:-
"(1) Subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death.
(2)
Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death.
(3)
In deciding whether or not there are any extenuating circumstances the court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs."
What is meant by extenuating circumstances in subsections (2) and (3) of that Section has been
the subject of many decisions and the one most frequently referred to and applied in Botswana
is the decision in S v Letsholo 1970 (3) SA 476 (A), in which Holmes J.A. said this:-
"Extenuating circumstances have more than once been defined by this Court as any facts, bearing on the commission of the crime, which reduce the moral blameworthiness of the accused, as distinct from his legal culpability. In this regard a trial Court has to consider -
(a)
whether there are any facts which might be relevant to extenuation, such as immaturity, intoxication or provocation (the list is not exhaustive);
(b)
whether such facts, in their cumulative effect, probably had a bearing on the accused's state of mind in doing what he did;
(c)
whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did.
In deciding (c) the trial Court exercises a moral judgment. If its answer is yes, it expresses its opinion that there are extenuating circumstances."
In R. v. Fundakuhi and Others 1948 (3) SA 810 at 818 Schreiner, J.A. made the
3
following important observation:
"But it is at least clear that the subjective side is of very great importance, and that no factor, not too remote or too faintly or indirectly related to the commission of the crime, which bears upon the accused's moral blameworthiness in committing it, can be ruled out from consideration. That a belief in witchcraft is a factor which does materially bear upon the accused's blameworthiness I have no doubt; the language of LANSDOWNE, J. P., in Biyana's case (supra) seems to be to state the position admirably. And it follows that POTMAN, J.P., was not correct in excluding that belief from the consideration of the jury or the court, respectively." It is also, I think, relevant to add what was said by Maisels J. P. In the case of Lekolwane
v. The State B.L.R. 245 after citing the case of S v. Letsolo supra.
"It is not explicitly stated, but it is I think implicit in this dictum (and particularly (c)), that the court considers not only the extenuating features but also any aggravating features in the case itself and considers them cumulatively in arriving at its value judgment. In other words, in making the "moral judgment" whether extenuating circumstances exist the court considers and weighs all the features of the case, both extenuating and aggravating."
Before applying these principles it is necessary briefly to consider the facts of this case. The Appellant who was from a rural background
had met the deceased Maicho Mokwena in 1967 before she was married and they became lovers. She moved away after a while and they
lost touch with each other. They met again in 1992 after the deceased was married. In 1993 the Appellant approached the deceased's
husband and asked him for a piece of land to plough at Mosinki. The deceased's husband gave him a piece of land and from then on
the deceased and the Appellant lived in a hut at Mosinki, which they shared with the deceased's husband on the occasions when he went to Mosinki from Molepolole where he normally lived and worked. When the deceased's husband came to Mosinki, he slept in the same hut as the deceased and the
Appellant and had normal sexual relations with his wife. The Appellant did not have sexual
4 relations with the deceased during these visits by the deceased's husband and seeing them having
sexual intercourse in his presence upset him and made him jealous.
On the evening of 29th Jury 1993, the deceased's husband was staying at Mosinki and he and the deceased and the Appellant were as usual sleeping in the same hut although separately. Each had their own bedding on the floor
of the hut and the deceased was sleeping between the two men.
At some stage the Appellant became aware that the deceased and her husband were having sexual intercourse and his jealousy was aroused. He got up from his bed and went to the door of the hut. There he picked up a large stone weighing 22 kg and returned to where the deceased and her husband were lying and, in
his own words to the police "threw (the stone) on them." He then ran away and reported what he had done to the police.
He was in a very agitated state at the police office, and very confused. However, he managed to take the police to the scene of the crime and explain what he had done.
On the basis of these facts the Trial Judge understandably convicted the Appellant of
murder and proceeded to hear submissions with regard to extenuating circumstances. He decided
that there was nothing in the circumstances of the case which reduced the Appellant's moral
blameworthiness. In particular he stated that:
'To be jealous of a married woman is, in my view, the height of folly and immorality and to kill a married woman because her husband is having his lawful sexual intercourse with her aggravates the offence rather than reducing the killer's moral blameworthiness. To hold otherwise would be to encourage adulterers to benefit from their crimes."
In his submissions in support of the Appeal against sentence Mr. Joina maintained that the
Trial Judge had misdirected himself in holding that there were no extenuating circumstances in
this case. He argued that this was a case in which the Appellant had acted on the spur of the
moment without premeditation, having been consumed by jealousy on seeing his lover having
5 sexual intercourse, albeit with her lawful husband. He emphasised that the Court in making a "moral judgment" had to have regard to all the features of the case both extenuating and aggravating and consider them cumulatively. He argued that the Trial Judge had concentrated on the immoral behaviour of the Appellant in committing adultery and had failed to take into account the jealousy of a lover of the class of the community to which the Appellant belonged and the unusual domestic arrangements. He also failed to take into account the obvious remorse of the Appellant as indicated by his actings in going to the police immediately and confessing.
For the Respondent Mr. Busang submitted that the Trial Judge had not erred in imposing the death penalty. He argued that the aggravating features of this case far outweighed the extenuating features and he founded on
the following matters:-
(1)
The size of the stone which the Appellant used.
(2)
That the Appellant could simply have gone away from the hut or used other options to stop the couple having sexual intercourse.
and (3) That it was an aggravating factor to have committed adultery with the deceased.
In my opinion, while giving due weight to all that was said by the Trial Judge and to the submissions of Counsel for the Respondent, this was a case in which the extenuating circumstances outweighed the aggravating ones. This was an unpremeditated act, committed on the spur of the moment by a comparatively simple man living in very unusual circumstances.
No doubt he was morally wrong in committing adultery with the deceased, but he was her lover and it is not surprising that he was consumed by jealousy when he noticed the deceased having sexual relations with her husband in his presence. No doubt he could have left the hut or employed other means of stopping the deceased and her husband from having sexual relations,
6 but having regard to the class of person that he was and the sleeping arrangements in the hut, I
am satisfied that the cumulative effect of the features of this case had a bearing on the Appellant's state of mind in doing what he did, and that such bearing was sufficiently appreciable to abate the moral blameworthiness of the Appellant in doing what he did. S v. Letsolo (supra).
In all these circumstances therefore, I would allow the appeal against sentence, quash the
death penalty and substitute a sentence of 10 years imprisonment.
Delivered in open Court at Lobatse this 17th July
1996.
W. L. K. COWIE
Judge of Appeal
I agree A.N.E. AMISSAH
Judge President
I agree
P. H. TEBBUTT
Judge of Appeal
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