July 8
BOTSWANA:
Court reserves judgement in death row appeal case
In Lobatse, the Court of Appeal has reserved judgement in a case in which
Mothusi Phiri is appealing against the death sentence and the 5-year
imprisonment passed in 2003.
Phiri, who has been on death row for 2 years, was found guilty of killing
Duncan Mfolwe and attempting to kill Duncan's sister Sebitse Mfolwe. He
had pleaded guilty.
He told the court that he had a love affair with the deceased's wife,
Salang, who had since committed suicide.
Phiri had told the court that the deceaseds wife had suggested that they
kill her husband, who had previously threatened to kill Phiri.
In his appeal, Phiri contends that there were extenuating circumstances
and that they were "more than sufficient to enable the trial judge to
exercise his discretion to impose a penalty other than death".
His attorney, Peter Collins, acting on instruction by Kgafela Attorneys,
argued in court that the decision as to the existence of extenuating
circumstances is one of the trial court and that the Court of Appeal has
the powers and discretion where it perceives that an incorrect sentence
was passed.
He also argued that the trial judge ignored some facts in the
psychiatrist's report, which show that there were extenuating
circumstances.
The report stated that Phiri did not suffer from mental illness before and
after the murder but had "for some time before the incident been under
considerable mental stress".
It also stated that the Mfolwe's threats to kill his wife and Phiri and
Salang's reports that Mfolwe beat her up put him under stress.
"The mental strain was compounded by the constant goading of Salang to
kill Duncan and this goading finally eroded his compunctions regarding the
act.
He had also felt that if he did not kill Duncan, Duncan would kill him.
When Salang telephoned him he did not wait to think anymore. His normal
inhibitions left him." Collins argued that the High Court judgement said
that the appellant "had contacts in South Africa, where they could obtain
a weapon" but the statement was not supported by the evidence of the
appellant nor the agreed fact which stated that "Salang and the appellant
travelled to South Africa where they met a certain character by the name
of Shakes who sold a pistol to Salang and Phiri for R1200, which Salang
paid with her money".
Collins further argued that there was no evidence of extortion, contrary
to the assertion in the High Court judgement.
The High Court had said Phiri added to the bad situation by extracting P5
000 from the deceased in return for withdrawing the "threat to kill" case
from the police.
The judge had said that Phiri had used the police to extract money from
Mfolwe.
Collins said the judges assertion that Phiri had shown himself as a greedy
man who was bereft of any morals, was not supported by evidence of
admitted facts of the case.
He said the judge had found aggravating features where they did not exist.
In the High Court judgement, the judge had stated that the case surpasses
Boschs case in all its wickedness and planning.
Collins said while the 2 cases had similarities in that both the accused
had love affairs with the spouses of the murdered persons and the deceased
were shot in cold blood, the 2 are different in that in Boschs case there
was never any allegation or evidence to the effect that Bosch had been
influenced by her husband to commit the murder.
He pleaded that if the court comes to the conclusion that the trial court
misdirected itself, it is open to the Court of Appeal to refer the matter
back to the trial court with directions as it has happened in the past.
He submitted that in a death sentence case such a practice should be
avoided if possible and that this court should proceed to exercise its own
discretion and sentence that appellant as happened.
He further submitted that even if the court does not find that the trial
judge misdirected himself but nevertheless find extenuating circumstances
present, then and in that event, there are mitigating features present
such as the appellants plea of guilty and candid expression of regret and
remorse in the trial court, which should enable it to sentence the
appellant severely but not unsympathetically or without mercy.
Responding to Collins, Susan Mangori of the Attorney Generals Chambers
said the trial court had canvassed issues of extenuating circumstances and
found none.
She said that the aggravating circumstances in the case outweighed the
extenuating circumstances and that the trial court did not err in its
findings on aggravating circumstances.
Mangori stated that the appellant had obtained a gun a month before the
incident and had left his home to kill the deceased 2 hours after he
received the call from Salang.
She however conceded that the intention on reporting the threat to kill
could not be inferred as extortion.
Mangori said the trial court was correct in saying Phiri was selfish as it
was evident that he got P5 000 from him when they agreed to settle the
"threat to kill" matter out of court and that he also got P500 from Salang
after Mfolwes death.
She said the appellant was the one who knew the person who assisted them
to obtain a weapon in South Africa.
The trial court, according to her, found the appellants taking money from
Mfolwe and continuing with a love affair with Mfolwes wife to have been
"morally reprehensible".
She pleaded with the court to uphold the trial courts decision.
The appeal was presided over by Justice Patrick Tebbut, Justice John
McNally and Justice Chris Plewman.
(source: Republic of Botswana)
