A date with death
Mpho Mokwape | Friday January 18, 2019 11:54
The case has all the hallmarks of other tragic, haunting chapters in the annals of Botswana’s homicide history. Two barely literate farm hands from impoverished backgrounds, claim slave conditions on the farm they work at and attack their employer. For others, including the family of Reinette Vorster and shocked members of the Okwa Valley, Gantsi community, Kgalalelo and Mpe are scheming, cold-hearted murderers, who took advantage of the benevolence and trust placed in them, to rob and brutally murder their employer.
Tensions have been high throughout the case. The case cost a magistrate his job. Conditions of farm workers and the relations between workers and their employers have been raised.
The case also has eerie similarities with two older cases.
In 1997, Tlhabologang Maauwe and Gwara Motswetla, two men who did not know their exact birth dates, were illiterate and nearly exclusively spoke a Sesarwa dialect, had a last minute escape from the hangman after human rights lawyers intervened.
Even earlier than that, in 1985, in the now often-cited Mosarwana vs The State, a 75-year old herdman who claimed years of torture at the hands of his master, including being paid P12 a month, escaped death row despite stealing a gun, walking up to his “tormentor” and shooting him dead.
Judges ruled that the trial court had misdirected itself in failing to factor in numerous extenuating factors, including Mosarwana’s “shabby and disgraceful” mistreatment by his victim.
Lawyers representing Kgalalelo and Mpe are hoping their clients’ case goes the same way. Kgalelelo’s lawyer, Letlhogonolo Makgane, citing
Mosarwana vs The State, recently told the Court of Appeal that his client had plenty of extenuating circumstances that the trial court had not considered.
“The court erred in finding that there were no extenuating circumstances.
“It is our submission that the court did not go far enough to investigate whether there were factors, and their weight, which reduced the blameworthiness of the first appellant (Kgalalelo). “It is our submission that there were extenuating circumstances in this matter.
“It is our submission, further, that the extenuating circumstances far out-weigh any aggravating circumstances in the case,” he said.
The factors, according to Makgane, include Kgalalelo’s age at the time of the offence (29), his lack of education (only went up to Std 2), his deep impoverishment, claims that he was not well-paid on the Vorster’s farm and the lack of premeditation.
“The first appellant testified that he lived on the deceased’s farm together with his live-in girlfriend, baby and the second appellant.
“It was not revealed whether such has been the bane of the first appellant’s existence, a solitary existence deep in the sands of the
Kgalagadi desert; away from civilisation. “The court a quo judged him with the standard of an ordinary man living in Werda. With respect, the court a quo erred.
“Though the first appellant originates from Werda, there was no evidence that his world view was shaped by the Werda community.
It may well be that immediately after he dropped out of school, life threw him right into the middle of nowhere, where he was made to herd cattle.
“Once again, it was the duty of the court a quo to have found out, at extenuation stage, what became of the first appellant after he dropped out of school.
“Did he hang around the village in Werda or he joined the forces of child labourers in cattle ranches?”
An uphill fight, however, as the State has already opposed the arguments strenuously and has previously filed its own appeal arguing that the High Court wrongfully found Kgalalelo not guilty of abduction with the intent to murder. The State subsequently abandoned that appeal.
Justices Ian Kirby, Isaac Lesetedi and Leatile Dambe, who have already torn into Makgane’s arguments, are set to pronounce judgment on the matter on Feb 8.
Vorster’s family, which has faithfully attended each hearing of the marathon case from the time it began at the magistrate’s courts, will be hoping the nightmare comes to and end once and for all.
Kgalalelo and Mpe will be hoping their fate echoes the cases from 1997 and 1985.