A death row inmate failed to escape the hangman’s noose despite sitting judges in the matter having a different opinion on the sentencing.
His sentence was confirmed on majority rule. The inmate, Wedu Mosalagae who was initially convicted on a single count of murder and sentenced to death after he was accused of murdering his live-in girlfriend on or about November 24, 2012 at Nkosho ward in Letlhakane, had his sentenced confirmed by the Court of Appeal on Wednesday on majority rule.
Mosalagae was not fortunate enough to escape despite Judge Gaolapelwe Ketlogetswe having a different opinion from Justice Singh Walia and Leatile Dambe on the sentence and choosing to rather give him (Mosalagae) a 20-year sentence coupled with backdating the punishment to the time he was imprisoned. According to the majority judgement, Justice Walia confirmed Mosalagae’s death penalty together with Dambe while Ketlogetswe failed to agree and had a different opinion that a sentence of 20 years was appropriate.
In his judgement, Justice Walia said the submissions made by the appellant’s attorney fell far short of the standard and recognised factors required to establish extenuating circumstances.
“I cannot but find that, neither the scanty evidence and submissions advanced before the court a quo, nor the submissions now made before us amount to extenuation,” he said.
Walia explained that if any violent response had been triggered in the appellant on seeing the message, then perhaps he could have placed reliance on sudden provocation for any reaction but his response was just ‘not being on good terms’ although he spent the night with the deceased.
He said his actions therefore could not in no way be attributed to any sudden provocation.
“If the killing in this case is to be categorised as a so-called crime of passion, then it fell into the category of cold-blooded rather than a hot-blooded killing,” he said. He further pointed out that what stared them in the face was the fact that the deceased’s throat had been slit by the appellant.
The judge said jealousy and anger at the presence of another man having been eliminated, the only picture that emerged was that of a cold-blooded killing of a lover and that there was no other explanation. However, Justice Ketlogetswe had a different opinion on the matter and in turn delivered a dissenting judgement.
According to him, the murder was a crime of passion, the accused was at a time aged 25 years and a first time offender.
“In all the circumstances of this case, I think a sentence of 20 years imprisonment will meet the justice of this case. The appellant is accordingly sentenced to 20 years. The period that appellant has spent in prison in relation to the matter shall be deducted from his prison sentence,” he said.
Justice Ketlogetswe explained that on the flipside, the crime was aggravated by the fact that there was a direct intention to kill but went on to say that he found that the murder was attended by extenuating circumstances therefore setting aside the death sentence.
He also said in his view he was satisfied that the absence of premeditation, coupled with jealousy or suspicions of unfaithfulness constitute extenuating circumstances as defined by the law.
“I am of view that although this was aggravated by a clear intention to kill on part of the appellant, the extenuating factors far outweigh the aggravating feature shown by the evidence in this case,” he said.
The judge also pointed out that the manner in which the appellant slashed the deceased’s throat, cutting it and causing injury to her vital blood vessels was no doubt reprehensible and deserved of not only condemnation but also deserved severe punishment.
However he said the crime did not fall into that category of murders that can be described as cold-blooded and undoubtedly deserving of no punishment other than the death penalty.
Despite his difference Justice Ketlogetswe lastly explained that given that it was a minority judgement, the final order of the court was pronounced in the majority judgement which condemned Mosalagae to the gallows.