Convict in murder-for-hire loses bid to appeal sentence
Goitsemodimo Kaelo | Wednesday November 22, 2017 18:32
Motukwa, a former prison warder, was convicted in November 2013 alongside Daniel Sime and Gaolatlhe Thusang for the murder of his father, Motlhanka Motukwa on August 12, 2008 at Ntlhantlhe.
Prosecutors proved that Motukwa hired Sime and Thusang to kill his father whom Motukwa believed was bewitching him and also to claim insurance benefits.
Justice Michael Leburu of Lobatse High Court sentenced Motukwa to 25 years in prison, while his two co-accused who were initially given the death penalty, had their sentences reduced to 22 years behind bars by the CoA.
When the trio appealed Leburu’s ruling, Motukwa abandoned challenging his sentence, but pursued the appeal against conviction.
However, after losing his conviction appeal, Motukwa approached the CoA last week seeking to reinstate the appeal against sentence. But yesterday CoA Judge, Isaac Lesetedi, dismissed Motukwa’s application.
When handing down the full reasons for dismissing the application, Lesetedi said the application fails on the basis that the court had finalised the matter in the appeal against conviction.
He said it is a principle that once a dispute between same parties on the same subject matter arising from the same cause has been finally determined, it cannot be re-litigated.
He indicated that when the court handled the conviction appeal, it had not closed its mind to the sentence and believed he had been fairly treated.
He said an appellate court hearing an appeal is entitled to raise issues on both conviction and sentence when it considers that there has been a failure of justice to make appropriate decisions.
“The principle of functus officio provides that once a court has pronounced a final judgement or order in a matter, it has itself no authority to correct, alter or supplement it as the court is then functus officio in the case, it having fully and finally exercised its authority and jurisdiction over the matter,” stated Lesetedi.
He said the question of sentence was an adjunct to the main issue, which was the determination of the applicant’s criminal liability, and the sentence was a consequence of the criminal charge he faced.
He said his sentence followed his conviction.
“The applicant could not in the same matter pick and choose which particular aspect of the decision of the High Court he wanted to appeal at a given time and once that appeal failed, then be permitted to go back and pick another point and try to challenge the decision of the High Court, still on the new point.
This would lead to splitting a single matter into multiplicity and offending against the pillar of finality to litigation,” he added.
Lesetedi said that by deliberately abandoning the sentence aspect of his appeal, Motukwa forewent any entitlement to raise the appeal after disposal of the appeal. Attorney Kesegofetse Molosiwa represented Motukwa.