A cellphone thief who stabbed his victim to death may get a harsher sentence after the Court of Appeal ruled that an earlier manslaughter conviction imposed by the High Court was too lenient.
Ofentse Modisane’s attempt to appeal his conviction and sentence for murder, has landed him in deeper trouble as the apex court observed that the trial court had erred by convicting him for manslaughter and giving him a 10-year-jail term.
Modisane was convicted for killing Champion Butale on November 21st, 2013 at Broadhurst Extension 20.
During trial, the court heard that on the fateful day, Modisane who was with his friend- Ishmael Gure, noticed Butale alighting from a vehicle near Total Filling station holding a cellphone.
Modisane then told Gure that he was going to snatch the cellphone and indeed he confronted Butale, pinched the phone and sped off, with Butale in hot pursuit and shouting for help.
Gure who turned accomplice witness and was subsequently discharged and acquitted of murder, told the court that he followed the two and found Butale on top of the Modisane and he pulled him away.
In his defence, Modisane told the court that during the scuffle the deceased had tried to hit him with a stone and he used his Okapi knife to defend himself.
He then stabbed the deceased twice on the thigh, causing fatal injuries.
Modisane was convicted of manslaughter and was sentenced to 10 years, but he appealed both conviction and sentence on grounds that the sentence was too excessive.
However, the Court of Appeal was not impressed with the lower court’s conclusion that “the stabbing was deliberate but the intent at that stage was not to kill, it was to stave off a sustained attack and the assault on the accused” and that the thigh was not considered a vital organ, hence the manslaughter conviction.
“The remarks by the trial judge were unfortunate. That the Appellant struck an area which was not a site of vital organs was irrelevant for purposes of making a finding that the Appellant intended to cause grievous bodily harm,” observed the Court of Appeal bench of Justices Leatile Dambe, Isaac Lesetedi, and Frederik Brand.
They concurred that Modisane was the aggressor and therefore should be punished accordingly.
They quashed the High Court conviction of manslaughter and ordered that he should be convicted of murder, and referred the matter back to the High Court for purposes of making a determination on whether extenuating circumstances existed.
