CoA Sends Kgosibodiba To The Gallows

Goitsemodimo Kaelo | Monday July 30, 2018 12:56

The Francistown High Court convicted Kgosibodiba in 2017 for the murder of Benjamin Mokobela without extenuating circumstances, which happened on February 1 or 2, 2012 in Makobo village.

It is said that the new entrant to the death-row killed his employer to cover up his crime after stealing bags of cement and a water container belonging to the deceased.

Following his conviction and sentence, Kgosibodiba appealed the conviction on the grounds that the court a quo erred both in law and fact by convicting him when the State had failed to prove its case beyond any reasonable doubt on the identity and nexus of him as the person who killed the deceased.

He also said that the court a quo erred in law and fact by holding that there were no extenuating circumstances in this matter, whose existence warranted the imposition of any other sentence other than the prescribed death penalty.

However, three Justices of the CoA, Monametsi Gaongalelwe, Singh Walia and Jacobus Brand, all concurred that indeed Kgosibodiba killed the deceased. Consequently, the trio upheld Kgosibodiba’s conviction and sentence.

Handing down the judgement, all evidence from the State witnesses and their statements pointed to the appellant as the perpetrator for reasons being that the deceased’s decomposed body was found in the house they were sharing and that he was seen on February 3 driving the deceased’s car.

“The decomposed corpse was found on the evening of February in a house both the deceased and the appellant lived in. It was locked at the time. The key to the house was retrieved from the appellant’s pocket,” Gaongalelwe said in the judgement .

He further said that the trial court made a factual finding, which was not directly challenged by the defence counsel that there was only one key to the house that was shared by the two.

“Above all, the finding of the house key on the appellant was the straw that broke the camel’s back. And the view of this court is that the trial court made proper factual findings and came to a conclusion, which was warranted. The appeal against conviction is dismissed,” he added.

On extenuation, the CoA judges said it was difficult to rely on the evidence of the psychiatrist, which talked of some mild depression because it was conducted more than two years after the commission of the offence.

Gaonaglelwe said that even the psychiatrist could not tell with certainty whether the appellant had the same depression at the time he committed the offence nor if it surfaced due to anxiety while awaiting trial.

Regarding alcohol consumption, which the appellant said he consumed on February 1 and 2, the defence counsel did not give any hint whatsoever as to what his state of sobriety nor insobriety was at the time of the commission of the offence.

Moreover, Gaongalelwe said that although the appellant also talked of being paid low wages, he still did not say whether that is what triggered his brutal actions.

He said that the killing was attended with great brutality resulting in a punctured laceration on the forehead and fractures on his arm in addition to the strangulation, which caused a slow painful death.   

 “I have agonised over the matter long and hard, but in the end I am of the firm view that there are no extenuating circumstances in this case. The appeal against the sentence of death is similarly dismissed. The Registrar is hereby directed to take steps pursuant to Rule 44 sub-rile 6 of the Rules of this Court,” Gaongalelwe said as he handed down the judgement.