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The right to life and death penalty

HERE is the third and final part of the memorial lecture delivered on October 20 2009 by Justice Michael Mathealira Ramodibedi in honour of the late Justice MP Mofokeng:

IN the case of Sello v Rex 1980-1984 LAC 21 the appellant was sentenced to death by Cotran CJ for the murder of Ramatlaleng Sehloho who was a postal courier employed to carry a postal bag from the post office at Morija.
The accused met the deceased on the way to Mahuu. He stabbed the deceased no fewer than 18 times. Five of the stab wounds penetrated his heart and lungs.
The accused then stole the deceased’s post bag which contained registered mail and money. The Court of Appeal confirmed the death penalty on 12 January 1981.
In Lemphane And Others v Rex 1980-1984 LAC 3 the accused murdered a night-watchman by the name of Monyake Hlalele at Fraser’s Shop, Lower Qeme. He died from suffocation as they had tied a copper wire tightly around his neck. They then broke into the shop and stole large bundles of goods.
Justice Mofokeng convicted them of murder and sentenced them to hang. The death sentence was confirmed by the Court of Appeal on 10 January 1980.
But it is important to point out at once that the late Justice Mofokeng was not a typical hanging judge as the label is sometimes used against some judges. He was a very compassionate man, as I recall.
Above all, he was a deeply religious man who never stopped reminding convicted persons to accept their sentences like true Christians — which of course was not much of a consolation to them as can be imagined. His compassion came to the fore in Lemphane’s case when he saved one Mokalanyane from hanging and thus upheld the right to life on the ground that extenuating circumstances existed in his case.
What touched Justice Mofokeng’s heart was Mokalanyane’s remarks to his accomplices before leaving the scene of the crime that they should un-tie the copper wire from the deceased’s neck otherwise he might die from suffocation. This plea, however, fell on deaf ears.
Lemphane in particular remained unrepentant till the last day of his trial. When Justice Mofokeng uttered the customary chilling words to him that he would hang by the neck until he was dead, Lemphane immediately retorted back, as I recall: “I don’t care man, you, too, will die one day.” The learned judge was not moved.
Then came the case of Mohlalisi And Others v Rex 1980-1984 LAC 110. The accused were convicted by Justice Mofokeng of the murder of Batsimang Mafifi who was a night-watchman at a shop at Makoae’s in Quthing district. They had then broken into the shop and stolen various items of property. Justice Mofokeng sentenced them to hang. The Court of Appeal confirmed the death penalty on 13 October 1981.
The next case was that of Mokoena v Rex 1980-1984 LAC 131. The accused had shot at a policeman who was escorting him but had missed. After he had shot and missed for the second time, the deceased, Ngaka Moji, bravely grappled with the accused, apparently in an attempt to disarm him. In the process, the accused shot and killed him. Justice Mofokeng convicted him of murder and sentenced him to death by hanging. The sentence was confirmed by the Court of Appeal on 8 May 1982.
In Mabaso And Another v Rex 1980-1984 LAC 256 Justice Mofokeng sentenced the accused to hang for the murder of a shop manager in the course of a robbery. The sentence was confirmed by the Court of Appeal on 25 April 1984.
It would of course be wrong to create the impression that the late Justice Mofokeng was the only judge who passed the death penalty in this country. Other judges played their part too.
Thus, for example, in Maseko v Rex 1985-1989 LAC  110 Molai J sentenced the accused to hang for the murder of Lebohang Oscar Leluma. The Court of Appeal confirmed the death sentence on 26 July 1985. The court held that this was a premeditated and carefully planned murder. The evidence tended to suggest that the appellant was settling a gang score.
In Lefaso v Rex 1990-1994 LAC 44 Lehohla J, as he then was, sentenced the accused to death by hanging for the murder of a woman called ‘Mampooa Pae-Pae at Bentele in Butha-Buthe district. The accused had first set alight the reed house of the deceased. He then murdered her using a knobkerrie even when she was already lying on the ground. The Court of Appeal confirmed the death sentence on 26 January 1990.
In what has become the last death sentence to be confirmed by the Court of Appeal and, therefore, the last execution to date in this country in Nkosi v Rex 1990-1994 LAC 538, Lehohla J, as he then was, sentenced the accused to hang for the murder of ‘Makamohelo Tsola committed in the course of robbery and housebreaking.
The murder was also preceded by rape. It was a terrible murder to say the least. The deceased was found lying naked in a pool of blood in her bedroom. She had sustained a broken jaw, amongst other injuries.
The Court of Appeal confirmed the death penalty on 16 July 1993. The accused was executed on 25 November 1995.
For the first time in this country, the hangman was imported from Zimbabwe. Previously Lesotho had always imported the hangman from neighbouring South Africa.
It is necessary to emphasise that the fact that the Court of Appeal last confirmed the death penalty by as far back as 16 July 1993 has nothing to do with any moratorium as erroneously alleged in some electronic media. Nor does it suggest that the Court of Appeal judges are opposed to the death penalty and that, therefore, they will not impose it at all costs. Far from it.
What has happened over the years since July 1993 is that the Court of Appeal has found extenuating circumstances in all the death sentences brought before it on appeal. Full reasons have been given in each case, supported by cogent evidence establishing extenuating circumstances.
Thus, for example, in the case of Maliehe And Others 1995-1999 LAC 258 Lehohla J, as he then was, had sentenced the accused to hang for the murder of Toloko Constantinus Kimane who held a fairly senior management position at Barclays Bank.
The Court of Appeal found that extenuating circumstances existed, a point which was conceded by the crown. There had been great frustration by the bank employees leading up to the deceased’s killing.
Furthermore, the court held that it would be unconscionable were the accused to be sentenced to death where the prime mover, namely, one Mothobi, and the actual killer went scot-free. Hence the Court of Appeal set aside the death penalty on 5 February 1997.
In Letuka v Rex 1995-1999 LAC 405, Guni J had sentenced the accused to death. This sentence was, however, set aside by the Court of Appeal on 4 February 1998 on the grounds that extenuating circumstances existed. The accused and the deceased had engaged in a fight which had started spontaneously. Such was the accused’s rage at the time of the commission of the murder that he was totally out of control.
On 4 April 2007, the Court of Appeal set aside the death sentence imposed by the High Court on the appellant in the case of Peter Molise v Rex C of A (CRI) NO.16/06. The appellant had stabbed the deceased with a knife once in the collar bone area.
The Court of Appeal comprising my Brothers Steyn P, Grosskopf and Smalberger JJA confirmed the verdict of murder but found that extenuating circumstances existed by virtue of the fact that it was a case of dolus eventualis. Furthermore, the murder was not premeditated.
In Basia Lebeta v Rex C of A (CRI) NO. 1/08 the High Court had sentenced the accused to death by hanging. In a judgment prepared by myself and concurred in by my Brothers Grosskopf and Melunsky the Court of Appeal found that extenuating circumstances existed.
In a nutshell, the facts showed that the accused and the deceased fought with stones and thereafter grappled with each other for possession of a stick which the accused had tried to use on the deceased. In the process, the accused produced a gun and fatally shot the deceased with it while the two men were still wrestling with each other.
Although correctly found guilty of murder, there were extenuating circumstances by reason of the fact that the accused had been provoked. His young son had been assaulted by the deceased’s group. They had also forcibly seized the accused’s whip from his son. Thus, the accused had then proceeded to confront them on these incidents.
Crucially, the learned judge had made a finding that the appellant was “visibly furious”. The Court of Appeal also took into consideration the fact that the accused came from an unsophisticated rural background.
The Court of Appeal recognises full well that a determination of extenuating circumstances involves a moral judgment. The question in each case is whether there are facts which reduce the moral blameworthiness of the accused as opposed to his legal culpability. The approach should evidently be a subjective one.
As was correctly said in the celebrated case of Rex v Fundakubi And Others 1948 (3) SA 810 (A), “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”.
In some cases where the High Court had imposed the death sentence for murder, the Court of Appeal has found on a close analysis of the facts that the correct verdict should be culpable homicide and not murder. This is exactly what happened in the case of Moroa Ha-Busoe Chabeli v Rex C of A (CRIJ  NO.9/2007.
The facts showed that the appellant had merely exceeded the bounds of self-defence against the deceased who was the initial aggressor for that matter. In a judgment prepared by my Brother Smalberger and concurred in by my predecessor Steyn P and Mofolo JA the Court of Appeal altered the conviction from murder without extenuating circumstances to culpable homicide.
Crucially, the crown correctly conceded that the verdict of murder without extenuating circumstances could not stand. Hence the crown supported the verdict of culpable homicide.
Like her two sister countries, Swaziland retains the death penalty. Although protecting the right to life, section 15 of the current 2005 Constitution of Swaziland saves the death sentence in the following terms:
“15(1) A person shall not be deprived of life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law of Swaziland of which that person has been convicted.”
The law providing for the imposition of the death sentence for murder in Swaziland is contained in section 296 of The Criminal Law and Procedure Act NO. 67 of 1938 as amended in 1975. It is important to recognise, however, that section 15(2) of the constitution provides that the death sentence shall not be mandatory. This is a crucial departure from Swaziland’s sister countries in which the death sentence is mandatory for murder committed without extenuating circumstances. The death sentence may also be imposed for treason in Swaziland. However, the Court has a discretion whether or not to impose it.
Statistics show that 34 people have been executed in Swaziland for murder since independence in 1968. The last person to hang was Phillipa Mdluli who was a prominent businesswoman. She was hanged in 1982 for the ritual murder of her domestic worker’s daughter.
It remains then to observe that, like Lesotho, Swaziland does not have a professional hangman. An advertisement was made in the past for the post of a hangman but, perhaps not surprisingly, no one came forward.
It is evidently a terrible and traumatic experience to hang people. In Botswana, after struggling for a long time to get a professional hangman, they now use the prison officers to do the hanging. But I am informed that these officers are always so traumatised after doing the job that they require intensive counselling.
In Lesotho a former assistant registrar once told me in the late 70s that he went to fetch the hangman from South Africa. This turned out to be a frail and sickly old man who hardly spoke at all along the way.
Just before they reached the Maseru Border Post, the hangman told the assistant registrar that he was too old and sickly for the job. He said that he was going to recommend the assistant registrar to the government of Lesotho for the job.
Lo and behold! The assistant registrar fainted from shock there and then. He was shuttered by the devastating suggestion that he should hang people. That probably sums up the traumatic and chilling nature of the death penalty.
Indeed, it is as well to mention that Her Ladyship Justice Hlajoane informs me that, in her capacity as the registrar then, she witnessed the last execution which took place in this country, namely, that of Nkosi on 25 November 1995.
She tells me that she was so traumatised that she could not sleep for several days thereafter. She was so horrified by the experience that she literally had nightmares. Interestingly, two hangmen actually turned up. Ostensibly, the extra hangman was to give moral support to the actual executioner.
In the final analysis, we must all recognise that the fate of this dreaded penalty, namely, the death sentence, lies with the politicians through the legislature and not the courts.
By virtue of their being democratically elected, politicians are undoubtedly the best suited people to gauge public opinion on whether or not the death penalty should be abolished in favour of an absolute right to life.
• Justice Ramodibedi is president of the Court of Appeal of Lesotho, judge of the Court of Appeal of Botswana, judge of the Supreme Court of Appeal and acting chief justice of Swaziland as well as former first resident president of the Court of Appeal of the Republic of Seychelles.

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