�Death penalty� dodger to linger longer in prison

Mpho Mokwape | Tuesday January 27, 2015 17:18

 

In 2013, the High Court convicted Masoko of murdering his ex-girlfriend in 2006 and injuring the deceased’s boyfriend. He received four years for the assault on the boyfriend – but in a legal rarity – was not sentenced for the murder itself. Justice Tshepo Motswagole declined to sentence him for murder declaring that the death penalty was unconstitutional.

As a result of the decision, Masoko has sat in prison for eight years and seven months, completing his assault term, but pushing on pending finalisation of the legal dilemma. Yesterday the state approached the Court of Appeal (CoA) asking for the remission of the case back to the High Court for sentencing and determination of the Section in the Penal Code that Motswagole declared unconstitutional. State attorney, Nomsa Moatswi asked the CoA bench to declare that the High Court erred by declaring Section 203 of the Penal Code unconstitutional. She said the High Court had used the very same section to find that there were no extenuating circumstances in the matter.

“I find that the judge should have not used the Section he deemed unconstitutional to determine if there were extenuating circumstances, then later dispose it,” she said. Moatswi said it was not the judge’s place to determine the constitutionality of the Section, particularly after using it initially.

She argued that Motswagole had erred in finding no extenuating circumstances when convicting the accused. However Masoko’s lawyer, Kgosietsile Ngakaagae countered the state’s arguments saying that the essence of the appeal was simply to seek the death penalty. He argued that the state was incompetent at trial and now only sought to remodel the trial process in such a way that they would secure a death penalty.

“I submit that the prosecution has, with respect, missed the essence of the enquiry and has to a significant extent gone after defending the death penalty when the same was not the issue,” he said.  Ngakaagae said the case should not be remitted back to the trial court. Instead the CoA should only make an order for his client to bring forward mitigating factors.

“The judge should have not said the whole Section of 203 was unconstitutional but should have made a provision within the Section to determine a proper sentencing looking at the fact that there were no extenuating circumstances,” he said.

Meanwhile after being given a chance to mitigate for his client, Ngakaagae said the court should take into consideration that his client was only 39 years and still had a chance to redeem himself. He further submitted that Masoko has two children, no previous criminal record, and no longer presented a danger to society as he had turned a new leaf and was now a Christian.

“We submit that a sentence of 15 years or less would be appropriate more so that the court can consider the time spent in jail during trial and even after conviction,” he said. While judgement in the other cases before the current session of the Court of Appeal will be delivered on February 5, the five judges in Masoko’s case said they would need more time beyond the date.