Five years in the slammer for murder
Goitsemodimo Kaelo | Tuesday November 1, 2022 06:00
He was 44 when he committed the murder.
Xhao Xite's lucky stars showed up last Thursday when the High Court's Justice Zein Kebonang presided over the case in Gantsi. Kebonang found him guilty of murder with exceptional extenuating circumstances and sentenced him to five years in prison.
The court also ordered that the convict is to be given a custodial credit of one year one month being the period he spent in prison while the case was committed to the trial court.
According to court papers, Xite killed his then-girlfriend, Botshau Boshi with an axe, on or about February 19, 2014, following a quarrel that had lasted an entire night between the two. The two had been in a relationship for 19 years.
It is said that the deceased had on that fateful morning told Xite that three of his surviving children that he thought were his were not, a revelation that immensely provoked his violent reaction.
It is said that upon hearing that revelation, he took an axe that was in the hut and hit the deceased with it causing her death.
Xite, who is a former Gantsi District Council employee, then reported himself to the police after attempts to take his own life failed.
In its judgment, the trial court agreed with the accused’s attorney, Lyndon Mothusi that there were exceptional extenuating circumstances that caused Xite’s “heat of the moment” actions.
“On the totality of the evidence, I am convinced that this is a case with exceptional extenuating circumstances. I have no doubt of the negative impact that the accused experienced when he was told that the children he had loved for 19 years were in fact not his,” read part of the judgment.
The judge said in his view, this psychological trauma cannot be explained or judged by hindsight, therefore the revelations constituted exceptional extenuating circumstances.
When passing the sentence, the judge said although murder carries a death penalty, the court is in this instance guided by Section 27 (4) of the Penal Code. The section provides that a court may where there are exceptional extenuating circumstances which would render the imposition of the statutory minimum sentence of imprisonment totally inappropriate, impose a lesser and appropriate penalty.
The court said the judge always retains discretion in each case.
“In the instance of this case, while I accept that the offence for which the accused has been convicted, is a serious one and involves a loss of life, the court cannot ignore the exceptionality of its circumstances and the local circumstances of the parties. The fact that the accused is from the San community, which is a marginalised community with no psycho-social support is a matter that cannot be overlooked,” stated the judge.
The judge said the fact that the murder happened in the heat of the moment and was not premeditated and precipitated by an emotional and traumatic revelation about the true paternity of the parties’ children in his view constitutes a sufficient mitigating factor.
He cited Gorogang V State (2013) 1 BLR 91 (CA) case in which the court accepted that infidelity of a spouse or partner could be ground for provocation and extenuation.
The court also said it considered the convict’s other personal circumstances such as his lack of education when passing what it terms an appropriate sentence.
Xite has been advised of his right to appeal against both his conviction and sentence to the Court of Appeal within six weeks of this order.