10 Feb 2014

A panel of three Court of Appeal judges has handed Opelo Kgathi a new lease of life as it set aside the death sentence, which was meted on him by the High Court in January last year.

Kgathi was accused of killing Kefilwe Moswaane and the trial court found that there were no extenuating circumstances and sentenced him to death.

The three judges led by Justice Seth Twum and assisted by Justices Stephen Gaongalelwe and David Newman unanimously agreed to set aside the death sentence and replace it with 25 years imprisonment.

When reading the judgement, Justice Twum said after a hard and anxious consideration of this human tragedy, they came to a firm conclusion that the death of the deceased was not premeditated. Justice Twum noted that in the end, they held that the absence of premeditation constituted an extenuating circumstance.

He said the 25 years imprisonment was a condign punishment for the anguish caused to the family of the deceased, particularly whoever would have to care for her young child.

Kgathi had appealed his death sentence at the Court of Appeal on the ground that the court erred in its finding that there were no extenuating circumstances in the committing of the murder.

He had argued that the murder was not premeditated and that he was influenced by alcohol after a heavy drinking on the morning of the murder.

Kgathi had also argued that the trial court erred when making a finding on aggravating circumstances when discussing extenuating circumstances and that those findings were mostly premised on speculation and emotion rather than on evidence.

The state on the other hand contended that the submission on the appellant’s alleged heavy intoxication was tenuous, sketchy and certainly a contrived piece of evidence.

The state had also argued that the appellant deliberately exaggerated his alleged inebriation when he said he drank four pints of Chibuku with four complete strangers as he hoped to cajole the court into holding that the self-induced intoxication, if true, constituted extenuating circumstances.

The state further submitted that the whole enterprise was equivalent to a person hiding behind a transparent object and that the ground lacked merit and be dismissed.
ENDS