David Keipone Tumagole (not retired prison warden), a habitual criminal currently serving five years imprisonment for armed robbery, recently had his sentence extended by 9 years for the murder of his girlfriend, Tebatso Pampiri.
Passing sentence, Lobatse High Court judge Steven Gaongalelwe, said that the prosecution’s submission in this case was that Tumagole was guilty of murder whilst the defence said that, at most, he may be found guilty of assault only.
Gaongalelwe said that, whilst self defence is a recognized principle of defence, the Court must place itself in the position of the person claiming to have acted in self defence and that it should not adopt an armchair approach that every act which is said to have been done in self defence should necessarily be held to be so “as every case depends on its particular facts”.
He said that in terms of Section 16 of the penal code, there is a further factor of whether the means and the degree of force employed are commensurate with the act of the ultimate victim.
In the present case, he said that the Court accepted the explanation of an assault with a saucepan, moreso that there is nothing to gainsay such, adding that it is pertinent to note that, in accused’s own words , it is himself who first attacked the lady.
In the scenario explained by Tumagole, it is the deceased who probably used the saucepan in defence of herself. On such basis, the judge said the accused was the aggressor and that it can not be said his assault on the deceased was ”an act of repelling an unlawful attack “ in terms of Section 16 of the penal code.
The deceased, Gaongalelwe said, sustained numerous injuries, indicating a protracted assault by Tumagole. Such, he said, would not be commensurate with the attack with the saucepan.
Gaongalelwe said the retaliation was in this case excessive.
On the defence’s suggestion that the deceased might have sustained the injuries as a result of her having, on her own, knocked her body against the walls and door frames, the judge said that he rejected this as palpably false, adding that in the version of the accused, she appeared and behaved normally for a further period of about 12 hours after so injuring herself in that manner.
The judge also said that the version of the accused person is demonstrably false in that if he knew that he had not inflicted any serious injuries on the deceased in the morning and the lady had appeared uninjured after the scuffle and had peacefully fallen asleep why would he think she died as a result of their scuffle if death occurred 12 hours later.
On the entire evidence, the judge said that he convicts Tumagole of murder as charged.
On the issue of whether there are any extenuating circumstances in the case, Gaongalelwe said there are extenuating circumstances in terms of Section 203 subsection 2 and subsection 3 of the penal code.
On the evidence of the accused, he said that the lady had angered the accused by some behaviour which the accused said was disrespectful and that she injured him on his right hand. That in the accused’s version she uttered some verbal insults towards him.
The whole tragedy, the judge said, resulted from a scuffle though the accused was the aggressor.
On this basis he said that he found that there were extenuating circumstances in the matter and “Tumagole is convicted of the offence of murder with extenuating circumstances”.
Tumagole is also awaiting trial for the P20 million fraud at the Central Medical Stores.
