Why Maxala won't hang
Mompati Tlhankane | Tuesday April 18, 2023 06:00
Maxala who allegedly murdered his assailant Thuso Mlalazi gangster-style in 2015, had been heading for the gallows since 2021 when the High Court sentenced him to death.
Now Maxala will get 30 years in prison instead because the CoA believes that what he did when he fatally shot the former physics teacher was not a cold-blooded calculated murder. When officially taking Maxala off death row, CoA’s Justice Isaac Lesetedi emphasised that Maxala murdered in the heat of anger and resentment and legitimate grievance against the deceased who called his friends to Borolong and got the appellant beaten up for no discernible good reason and without provocation.
Lesetedi indicated that Maxala was subjected to an unprovoked physical assault by the deceased’s friends who had been summoned by the deceased and only stopped assaulting him also at the instruction of the deceased.
“This was not a mere scuffle as found by the trial court. The shooting of the deceased took place some hours thereafter after what appears to have been a period not conducive to cooling off,” Lesetedi highlighted.
He added that for an adult man at the age of Maxala to be physically beaten up by strangers for no apparent reason other than that his vehicle parked behind one of them was indeed a provocation which predictably would have brought about a feeling of hurt, anger, resentment in him.
He added that those emotions may have still been smouldering a few hours later that evening when the shooting took place, and understandably so. “Although the appellant loaded the gun with a lethal bullet at some point, there is nothing on the record that seems to indicate that there was a deliberate selection of that type of bullet from the assortment of bullets some of which were less lethal before he loaded the gun nor that he had gone hunting for the deceased upon collecting the gun from his house, though it is evident that he intended to use it should the opportunity arise.
But this was not a cold-blooded intention,” Lesetedi pointed out. He also indicated that nowhere in the judgment nor ruling on extenuating circumstances did the trial court deal with Maxala’s evidence regarding the telephonic discussions and insults which the appellant testified to have taken place and to have firstly motivated him to follow the deceased into Francistown and secondly to have provoked him or increased his anger towards the deceased.
About previous cases where the court set aside the sentence of capital punishment, Lesetedi said what the cases demonstrated is that in enquiring into the existence or otherwise of circumstantial evidence, the court should closely examine the facts of such cases.
He said the court should also scrutinise the circumstances of the accused person in that case and determine whether any particular feature constitutes an extenuating or aggravating factor on the facts of the particular case and weigh the value of such factor within the context of the case on a conspectus of all the relevant considerations. He said after considering all that the court should decide whether cumulatively it can be said on a balance on all those features extenuating circumstances exist.