Sympathy but no relief for convicted killer

Mpho Mokwape | Wednesday November 4, 2015 15:43

 

The CoA bench, led by Judge President Ian Kirby, agreed last week that the 32-year-old Gabanakgang committed the murder under strong extenuating circumstances as also found by the trial judge. Gabanakgang murdered his mother’s lover at Sasa cattle post in the Central District, after a bitter dispute, which also included allegations of sexual advances towards the convict’s niece by the deceased.

Gabanakgang had appealed to CoA, arguing that a verdict of manslaughter, rather than murder, was appropriate as he had provoked him in the period leading up to the incident. Dismissing the application, Kirby said despite having found that there were extenuating circumstances, the sentence was justified. He said the trial judge was justified in finding that the defence of provocation could not be sustained despite having found that Gabanakgang was subjected to abuse and an undermining of his authority at the cattle post.

“Those extenuating circumstances were that over a period of years, the applicant had been subjected to insults, humiliation and the relationship with his mother and the deceased irked him,” Kirby said. He explained that Gabanakgang’s anger was also heightened by his discovery of the alleged abuse of his niece by the deceased as well as alcohol consumption, arguments and insults on the fateful evening. Court records indicate that Gabanakgang’s mother was involved in an adulterous relationship with the deceased while the convict’s father stayed in Letlhakane.

The deceased was hired as a herdman and the affair upset Gabanakgang and his siblings who tried on several occasions to resolve the matter with relatives and even a social worker, without any success. According to court documents, matters came to a head in Christmas 2009 when Gabanakgang returned to the cattle post and his 15-year-old niece alleged that the deceased had been harassing her for sex. “The appellant felt helpless to intervene in the circumstances, but in 2010 he returned to the cattle post again where a fight ensued resulting in the killing of the deceased,” read the court papers.

Kirby said even when taking into account the “grim threats” by the deceased to the effect that one of the two of them would die on that fateful evening, Gabanakgang’s reaction was far beyond what could be justified by the provocation. “The appellant went to the deceased’s hut, where he loaded his father’s shotgun, aimed this and shot the deceased in the head as he sat in a chair outside.  That showed a clear intention to kill him, motivated no doubt by the earlier threats, and certainly not justified thereby,” he said. Kirby maintained that a verdict of manslaughter was out of the question because at that time, Gabanakgang was in no immediate danger.  Instead, he had left the war of words to go pick a gun in the hut.