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Gaborone lawyer, Ookeditse Maphakwane, recently made a last bid to save his client, Zimbabwean Gerald Dube, from a date with a hang man by pleading that there were extenuating factors in the case against him.
Dube was convicted of the murder of four people.
In his submissions, Maphakwane asked the Court of Appeal judges to find that the lower Court judge who had sentenced Dube to death had erred in both law and fact in finding that there were no extenuating circumstances in the case whilst such existed in respect of all four counts of murder of which he had erroneously sentenced Dube to death.
Maphakwane said that in the circumstances of the case the lower Court judge had erred both in law and fact in not finding the death sentence to be inappropriate in respect of the four counts of murder and further that it is trite law that sentencing is the prerogative of the trial Court.
Further to that, he said, there are instances when the Court of Appeal will interfere with sentence. This, he submitted, was set out by one Court of Appeal in the past.
He said Dube bore no burden to prove the existence of extenuating circumstances but that such is the overall responsibility of Court assisted by its officers.
The lawyer said that evidence, which was put before the lower Court and was ignored, was the following:
Dube’s mental defect (short of insanity); that there is plenty of evidence of defective mental state prior to the fateful incident; that Dube had disclosed during trial in his evidence in chief and as put to state witnesses that he was at some point in his lifetime in 1990 admitted at a mental hospital at Engucheni Mental Hospital in Bulawayo, Zimbabwe, where he was diagnosed of psychomotor epilepsy.
He said that such condition had remained with him (Dube) through his life as an on and off mental malady dependent on its uncoordinated resuscitation.
Maphakwane further submitted that, that though Dube did not produce his medical records for admission into hospital, he materially established that he had a mental illness which the psychiatrist described as a lifetime condition.
The state’s position, as submitted by its lawyer, is that there are no extenuating circumstances as claimed by the defence and that the lower Court was right in imposing a death sentence on Dube, who was sentenced to death for the murder of former Francistown lawyer Majoko, her two children and a maid.
Judgment will be handed down on July 29, 2009.