MMALEKOTO KEGODILE AND ANOTHER v. THE STATE 1971 (1) BLR 7 ...

MMALEKOTO KEGODILE AND ANOTHER v. THE STATE 1971 (1) BLR 7 (CA)

Citation: 1971 (1) BLR 7 (CA)

Court: Court of Appeal

Case No:

Judge: Schreiner P, Maisels JA, Milne JA

Judgement Date: March 31, 1971

Counsel: C.J. M. NATHAN for the Appellants.

Flynote
Extenuating circumstances - Appeal against sentence - discretion in imposition of death sentence.

Headnote
Appellants appealed against the sentence of death imposed upon them by the High Court for the murder with
extenuating circumstances of two young children for "medicine" purposes.Held:1. Having found extenuating
circumstances the Trial Judge has a discretion to impose either the death sentence or a sentence other than death.2.
Appeals to the Court of Appeal have to be decided on the lines generally followed by Appeal Courts in appeals against
sentence.(State vs Letsolo 1970 (3) SA 475 at P. 477 approved, viz a sentence is unalterable on appeal, save on
improper exercise of judicial discretion, that is to say unless the sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate).3. It is the duty of the Courts to give effect to the feelings of indignation aroused in the minds
of right thinking people by imposing suitably severe punishments in order to try to eradicate the evil.

Case Information
C.J. M. NATHAN for the Appellants.If the Court is of the opinion that a different sentence should have been passed, it is
entitled to pass such sentence as it thinks ought to have been passedSs 3 (1) and 4 (3) Court of Appeal Proclamation
1954.State vs. Lesedi Mothibamela 1969 (2) Botswana Law Reports 24 at page 26.In considering extenuating
circumstances the subjective side is of great importance -R. vs. Fundakubi and Others 1948 (3) SA 810 (AD) at
P.818.State vs. Sigwahla 1967 (5) SA 566 (AD) at p.571 H - 572 A.Failure to consider the cumulative effect of possible
extenuating circumstances is a misdierction.R. vs. Manyathi 1967 (1) SA 435 (AD) at P.439 B - F.1971 (1) BLR p8State
vs. Sigwahla 1967 (4) SA 566 (AD) at P.571 B.I.S. KIRBY (for the State)A belief in witchcraft is not per se an
extenuating circumstance, but only when it serves in the minds of reasonable men to diminish morally the degree of the
prisoner's guilt.R. vs. Fundakubi 1948 III SA at P. 815 (AD) at pp 815, 818, 820.Having found extenuating circumstances
the Court has a discretion to impose the death sentence or some other sentence.State vs. Von Zell 1953 (4) SA 557
(AD).Craies on Statute Law (6th Ed) P.284.Before the Court of Appeal will order a reduction in a sentence imposed by
the Trial Court it must be shown that the Trial Court has exercised its discretion improperly.R. vs. Ramanka 1949 (1) SA
420 (AD).

Judgement
Schreiner, P.The Appellants, and a third woman, were found guilty by Young, CJ., sitting with assessors, of the murder
of two very young children. Extenuating circumstances were found and, in the case of the third woman, a sentence of
ten years' imprisonment was imposed. She has not appealed. The other two women, the Appellants, were sentenced to
death and they now appeal, not against their convictions but against the capital sentence.Before the facts are examined
it is necessary to consider whether the learned Chief justice was entitled, despite the finding of extenuating
circumstances, to impose the death sentence. Under the legislation in force in the Republic of South Africa such a
course has been followed from time to time, the case of R. v. von Zell )2) (1953 (4) SA 552) being a clear example of its
being authoritatively approved The Botswana provisions on extenuating circumstances, Section 203 (2) and (3) of the
Penal Code, differ from those obtaining in the Republic of South Africa. This was pointed out in The State v. Leside
Mothibamela 1969 (2) Botswana Law Reports, 24 at 26, and the Court, speaking through the majority of its three
members, found it unnecessary to consider whether under the Botswana legislation the trial judge, if extenuating
circumstances are found, is precluded from imposing the death sentence. In the present case, Counsel for the
Appellants, in the course of his thorough and fair argument on their behalf, conceded that von Zell's case had been

rightly decided and that in the present case the learned Chief Justice had a discretion to impose either the death
sentence or a sentence other than death. In our view, Counsel was correct in making the concession since the
reasoning upon which von Zell's case was based seems to us to be valid and to be applicable, despite some1971 (1)
BLR p9SCHREINER Pdifferences in the language of the provisions, to similar situations under the Botswana Penal
Code. Under both sets of provisions the trial judge is permitted by a finding of extenuating circumstances to impose any
sentence other than death, but is not obliged to do so. Under the Botswana legislation the trial judge is the trier of fact
(assessors being only advisers to the judge), whereas in the Republic of South Africa assessors, when summoned, are
part of the Court for the purpose of deciding on the facts. It might accordingly seem that in Botswana (and in South Afica
when, exceptionally, there are no assessors) the judge would be involved in a conflict of decisions if he should first find
extenuating circumstances and then go on to hold that the sentence should nevertheless be that of death, as if no
extenuating circumstances had been found. But there would not really be a conflict, for the judge sitting alone acts in two
capacities: first, as the trier of facts, and, second, as sentencer. In the first, he has to decide whether in the second he is
to be allowed to impose a sentence other than death. Since that is all that the finding of extenuating circumstances
amounts to, the judge's discretion as sentencer remains unrestricted by his finding as trier of facts.The Appellants'
Counsel, while conceding that the learned Chief Justice had a discretion whether to impose the death sentence or some
lesser punishment, submitted that he should have exercised it along different lines, which would have led him to impose
prison sentences.The Appellants are elderly women who live in a village some 65 miles west of Kanye. The headman of
the village, one Leshuba, is the husband, by African custom, of No. 2 Appellant. He is a witchdoctor and was the
originator of a plan to kill the two children. This appears from the evidence of No. 2 Appellant when she testified in
extenuation after she and the other two had been convicted. Before conviction, all three denied any knowledge of the
killing of the children, but after conviction No. 2 Appellant stated that she was directed by Leshuba to go and tell the
other two to join her in killing the children. She told them and they agreed. Their evidence after conviction supported No.
2 Appellant's account. A fourth witness, an accomplice woman named Mmompati, and another woman, Malele, not an
accomplice, gave evidence which also confirmed this evidence of No. 2 Appellant.The children, a boy and a girl, had
been sent by the mother of the girl to take some spoons to a relation. They delivered the spoons and set out on their
way home. They never arrived and it became clear from all the evidence given before and after the conviction that they
were murdered by the Appellants, the third accused and the accomplice near a tree about 11/2 miles from the home of
the children. After their necks had been broken, their bodies were at a later stage removed to an unoccupied hut and cut
up, and the flesh was distributed among the murderers. A group of bones was1971 (1) BLR p10SCHREINER Pfound by
the police in the neighbourhood. An anatomist testified that these bones contained no duplications and might therefore
have been the remains of one child only. There is thus the possibility that the body of the other child was delivered to
Leshuba as his share of the proceeds of the murder.The features of the evidence that related to the question of
sentence were summarised in the learned Chief Justice's judgment on that question. The Appellants' case did not
involve a challenge to any finding of fact and, indeed, the findings were conspicuously fair to the Appellants. But it was
contended on their behalf that in some respects the weight given to the different factors was disproportionate. In this
connection it is convenient to mention Section 203 (3) of the Penal Code which reads:"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."For the Appellants it was argued that the
learned Chief Justice had paid insufficient regard to this provision. As extenuating circumstances were in fact found, the
subsection had no direct bearing on the question of sentence, but the standards of behaviour referred to might well
affect the view taken of the appropriateness of any particular sentence, despite the views expressed on the standard to
be applied to the treatment of mistake of fact in R. v. Mbombela (1933 AD 269 at 273/4).The learned Chief justice rightly
considered the subsection when deciding whether to find extenuating circumstances and he said:"There is no evidence,
in my view, that the conduct of the accused can be comprehended within the standard of behaviour of the ordinary
persons of their class. However, I doubt whether the society to which the accused belong could approve of such
conduct. It may well be - and I will accept it for the purposes of this case - that many in their society submit to the
domination of witchcraft; but such submission would, in my view, not constitute a standard of behaviour for the purposes
of Section 203 (3). At any rate there is no evidence that it does. I am of opinion, therefore, that Section 203 (3) does not
assist the accused in this case."Since, in fact, extenuating circumstances were found by the learned Chief Justice it is
not necessary to express an opinion upon the correctness of this conclusion.It was argued for the Appellants that the
finding of extenuating circumstances should have been more widely based, so as to cover, inter alia, the injunction in
Section 203 (3) and its application to the facts of the present1971 (1) BLR p11SCHREINER Pcase. But the appeal is
against the sentences; it was not and could not have been brought against the grounds for finding extenuating
circumstances.The issue of extenuating circumstances having thus been disposed of, there remains the question
whether the sentence of death should be interfered with. And this has to be decided on the lines generally followed by
appeal courts in appeals against sentence. (See R. v. Zulu (1951 (1) S.A. 489; S. v. Letsolo 1970 (3) S.A. 476. per
Holmes F.A. at p. 472).The approach of the learned Chief justice appears from the following passages from his
judgment:"It can be accepted, however, that the three accused believe in what I will call witchcraft and that they were,
partly at least, driven to commit the murders through fear of the possible supernatural consequences of disobedience to
the headman. On the other hand, they were very substantially actuated by selfish considerations of wealth and power as
well ...... In my view, the only mitigating factor is the fear under which the accused laboured and which was inspired by
the headman. He is a powerful man in their society and apparently practises witchcraft. It follows that the influence of
witchcraft on the accused does operate as a mitigating circumstance, so as to give me a discretion in the matter of
sentence.However, it still remains to consider whether I can rightly exercise my discretion in favour of the Accused. The
serious difficulty, to my mind, is that, against the mitigating feature which I have mentioned, there was the powerful
influence of personal gain and the brutal and determined manner in which the crime was executed. I have not lost sight

of the fact that the accused have now repented and have made a clean breast of their offence; but this does little to
mitigate the crime."It was argued for the Appellants that the learned Chief justice had misdirected himself by not
considering the cumulative effect of the Appellants' belief in witchcraft and the enormous power possessed by Leshuba
as No. 2 Appellant's husband and as a witchdoctor. And we were referred to what was said in R. v. Manyathi (1967 (1)
S.A. 435) and S. v. Sigwakla (1967 (4) S.A. 566) in criticising the practise, when deciding whether to find extenuating
circumstances, of treating each item of extenuation separately and disposing of it without adding them up and
considering the totality. But in the first place, as was pointed out in R. v. Myeni (1955 (4) S.A. 196 at 198) not all
treatment by a trial court on the subject of extenuation which the appellate court might consider erroneous could be1971
(1) BLR p12MILNE JAformulated as a misdiscretion, and in the second place there is really no ground whatsoever for
holding that the learned Chief justice did not consider the cumulative effect of fear of Leshuba as a powerful figure in the
community, as No. 2 Appellant's husband and as a dealer in the arts of the supernatural.The learned Chief Justice was
not unmindful of the pressures to which the Appellants were being subjected but he considered that they were
outweighed by the considerations that personal gain operated as a powerful influence upon them and that the crime was
executed in a brutal and determined manner. He was perfectly entitled to reason in that way. There were, moreover,
other factors which operated against the Appellants and which, though the learned Chief Justice no doubt had them in
mind, he did not expressly mention. They are indicated clearly in the judgment of Tredgold, C.J in R. v. Tarusika (1959
(1) S.A. 122 at 124). At the stage of sentence the element of deterrence must, particularly in a case of this kind, be given
due weight.As was said in R. v. Ramanka (1949 (1) S.A. 416 at 420) by Centlivres, J.A., though an appellate tribunal
might not have imposed the sentence in question - even the death sentence - the test remains whether there was an
improper exercise of his discretion by the trial judge.The evils which flow from a belief in witchcraft were referred to in R.
v. Fundakubi (1948 (3) S.A. 810 at 818) as consituting a very great blight upon the peoples affected. That remains the
position in some parts of Southern Africa, including Botswana. It is the duty of the courts to give effect to the feelings of
indignation aroused in the minds of right-thinking people by imposing suitably severe punishments in order to try to
eradicate the evil. Education and other social action may be more important in achieving this goal, but the courts must at
least do their share in promoting the elimination of the cruel practices of which this case provides a grim example.The
appeals of both Appellants are dismissed.MILNE, J.A.I agree that the appeals must be dismissed and for the reasons
given by the learned President, subject to what briefly follows.Insofar as the learned Chief justice, in the passages from
his judgment quoted by the President, regarded himself as being unable to take into account, in favour of the Appellants,
the provisions of Section 203 (3) of the Penal Code unless he could say that the society to which the appellants belong
could approve of their conduct, he went, in my view, too far. In these days, apart from a cannabalistic society, it is
difficult to conceive that1971 (1) BLR p13MILNE JAany society could approve of such conduct, and I do not think
approval of their conduct by the society of the appellants in this case was necessary for the provisions of Section 203 (3)
to apply. If, in holding that the fact that many in the society of the appellants submitted to the domination of witchcraft
would "not constitute a standard of behaviour for the purposes of Section 203 (3)," the learned Chief Justice had menat
that the existence of such domination, which resulted in murder, was never capable of being regarded as an extenuating
circumstance within the meaning of Section 203 (2), he would, in my view, have been going too far, but, quite clearly
that is not what he meant at all. What he says in the passages which have been quoted from his judgment could hardly
be more explicit on this point.I wish to record my view that, although it is clear that once extenuating circumstances have
been found to exist, the judge has a discretion to impose some sentence other than the death sentence, the degree to
which the circumstances extenuate the crime may be greater or less, and to the extent that they are greater, they may
well, depending upon all the other factors, call for the exercise of the discretion in favour of a sentence less grimly
extreme than the sentence of death.Although this is a case in which it was accepted that the person who instigated the
commission of these dreadful murders was not only a witchdoctor but a powerful headman and, besides that, the
husband of the second appellant who was his agent to bring the other three women into his vile plan, not only
threatening them with death should they disobey him but beguiling them with baseless promises of personal advantage,
and although these factors will, no doubt, with all the others, weigh with the President of Botswana in considering
whether or not to exercise the prerogative of mercy in the appellants' favour, I find myself, for the reasons given by the
learned President of this Court, unpersuaded that the learned Chief Justice was wrong in passing upon the appellants
the sentences which he did pass upon them.I wish to add, however, that I think, not only that very serious consideration
deserves to be given to the matter of amending the Law against witchcraft (Cap. 25) so as greatly to increase the
penalties for infringement, but that the eveils attendant upon belief in and the practice of witchcraft should be brought
home to the population from early childhood, with the object of eliminating, sooner rather than later, these evils, capable,
as they are, of resulting in the dreadful consequences with which we have been concerned in this case."Reported by I.S.
KIRBY (Advocate).