A man who had approached the Court of Appeal (CoA) hoping for better luck overturning his conviction only made things worse for himself on Friday when he upgraded from manslaughter to murder.
The convict, Ofentse Modisane was originally charged with murder in the killing of one, Champion Butale, who died after he was stabbed in the thigh by the convict in 2013. The deceased was stabbed with an Okapi knife as he tried to fight with the convict who had snatched his phone.
Modisane got lucky when the trial court convicted him of manslaughter instead.
His relentless pursuit for freedom landed him in more trouble as he now finds himself with the hard and tricky task of convincing the Gaborone High Court that there were extenuating circumstances that led him to take the life of Butale on the night of November 21, 2013, in Gaborone. A murder charge without extenuating circumstances attracts a death penalty, while manslaughter sentences normally range from a minimum of five years to a maximum of life.
According to court documents, Modisane was charged with murder alongside one, Ishmael Gure. The two former school buddies were alleged to have, acting together and in concert, murdered Butale after snatching his phone on November 21, 2013, at Broadhurst Extension 20 in Gaborone following a drinking spree at Kilimanjaro Shopping Complex and a shebeen in Extension 27.
It is said that the deceased died after Modisane stabbed him with a knife in the thigh following a scuffle over his (deceased) phone which Modisane had grabbed from him.
Both accused persons pleaded not guilty to the charge. However, charges against Gure would, later on, be withdrawn after he turned accomplice witness for the state, leaving Modisane to face the wrath of the law alone.
Modisane was found guilty and convicted of manslaughter by Gaborone High Court. He lodged an appeal against his conviction and sentence on the grounds that the court a quo erred in convicting him when he had proffered sufficient evidence to disclose self-defence. Modisane said his intentions were not to kill the deceased but to fend him off.
He also appealed that the sentence imposed by the court below was excessive considering the circumstances of the case.
However, his appeal was dismissed by CoA justice, Leatile Dambe with Justices Isaac Lesetedi and Fritz Brand concurring with her. The CoA justices instead, upgraded his conviction to murder stating that there were fundamental misdirections in the judgment of the High Court which they believed had resulted in a miscarriage of justice.
The justices referred the matter back to the High Court to determine the question of extenuating circumstances and dealing with other procedures of the law.
In her judgment, Justice Dambe said it was the stab wounds on the right thigh inflicted by Modisane which injured the blood vessels resulting in the deceased’s death.
“There was proof that in causing the deceased’s death, the appellant acted out of malice aforethought,” stated Justice Dambe in her judgment.
She explained that the Penal Code provides that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: a) An intention to cause the death of or to do grievous harm to any person, whether such person is killed or not. b) Knowing that the act or omission causing death is likely to cause the death of some person whether such person is the person killed or not, although such knowledge is accompanied by indifference whether death is caused or not or by the wish that it may not be caused.
Dambe said the action of the appellant in stabbing the deceased with a knife caused the severing of the femoral artery and veins and this endangered life and thus amounted to grievous bodily harm.
“Where a person causes grievous bodily harm to another person, which results in death, malice aforethought is deemed to be established and the person should be convicted of murder in absence of any legal defences,” she explained.
Justice Dambe said in the scheme to steal the deceased’s phone, the appellant took out his Okapi Knife from his pocket and stabbed the deceased to quell any resistance put up by the deceased as he robbed him of his property. He said in stabbing the deceased, the appellant intended to do grievous bodily harm to the deceased with malice aforethought and his actions rendered him criminally liable for the offence as charged in line with Section 202 of the Penal Code (murder).
She said the remarks by the trial court judge that the stabbing was deliberate but the intent at that stage was not to kill, were most unfortunate. According to Justice Dambe, there was no basis for finding that in stabbing the deceased, the appellant was retaliating. Dambe said that once there was a finding that the appellant intended to cause grievous bodily harm, the court below should have found the appellant guilty of murder.
"This was a serious misdirection resulting in a substantial miscarriage of justice and this court is entitled to exercise its powers and interfere with the verdict," read Justice Dambe's judgment.
