FRANCISTOWN: A 53-year-old convicted murderer, Ntlole Kefalotse, who was condemned to death by the Francistown High Court Judge Tshegofatso Mogomotsi in December 2019, breathed a sigh relief as the Court of Appeal (CoA) in Gaborone last week overturned the judgment.
Delivering the verdict, the CoA concluded that the trial court erred in not determining that there were extenuating circumstances in the case and that the death penalty was a harsh sentence.
Instead the appellant was granted a 20 -year sentence.
The appeal was before a quorum of three Judges, Justice Zibani Makhwade, Justice Modiri Letsididi and Justice Monametsi Gaongalelwe.
According to the court documents, during the commission of the offence the Ntlole was employed as a farm worker at a place called Mogotho Kokorala in the Central District.
On Christmas day in 2016 he together with others proceeded to a farm called Drogo 2 Farm for festivities where they drank alcohol. They met one Tshokoditso Ramathase Tunosi at the occasion.
The appellant’s son one Onkemetse Ntlole was also at the same the festivities. The festivities continued to the afternoon of 26 December 2016 where the appellant continued to drink alcohol. During the same day, the appellant who was in the company of his wife, daughter and son in law left Drogo 2 Farm heading to their place of residence.
About 100 metres from the place of festivities, they found Tunosi under a tree. He was fast asleep. The appellant then accused him of killing his son (Onkemetse).
However, the appellant’s wife, daughter and son in law assured the appellant that Onkemetse was alive and had not been killed. When the appellant shook Tunosi and asked him if he was the one who killed his son, he was unresponsive.
The appellant then went back to the homestead at Drogo 2 farm where he collected a pick axe. Despite his family trying to assure him that Onkemetse was alive, he then proceeded to chop Tunosi with the pick axe killing him instantly.
During trial, Francistown High Court had ruled that there were no extenuating circumstances in the case. The court maintained that the murder was premeditated. It then proceeded after hearing submissions in mitigation to sentence the appellant to death.
Through his lawyer, Reneetswe Rabosotho from Rabotho Attorneys, the appellant appealed against sentence. The lawyer argued in the grounds of appeal that the sentence is manifestly excessive and induces a sense of shock. He also argued that the sentence is manifestly excessive that no reasonable trial court would have imposed it taking into consideration all the circumstances of the case.
Rabosotho also argued that the court erred in finding that there were no extenuating circumstances. He had emphasized in the grounds of appeal that there were extenuating circumstances as the appellant was drunk during the commission of the offence, had thought the deceased killed his son and that there was no premeditation.
Delivering judgment the Court of Appeal Judge Zibani Makhwade said the trial court erred in its conclusion that there were no extenuating circumstances in the matter. He said the evidence on record shows that the appellant was involved in drinking both on the 25th and 26th of December 2016. On the issue that the appellant believed or thought that the deceased killed his son Justice Makhwade said a clear distinction should be made between legal culpability and moral culpability.
“In considering the question of extenuating circumstances the court is concerned with moral culpability. The appellant’s belief and alcohol consumption cannot be regarded as having no bearing in the commission of the offence. The effect of alcohol in the thought process is well known. It is a drug that if taken in excess alters in a negative way the thought process,” said the Judge.
