‘You are lucky you did not get a death sentence’- Court of Appeal

Sharon Mathala
LEAD JUDGE: Monametsi Gaongalelwe

If he had his way, Court of Appeal Judge Monametsi Gaongalelwe would have all males who kill their girlfriends, hanged.

This seemed to be the chilling implication this week as Justice Gaongalelwe upheld a 25-year jail sentence against David Mbi imposed by a Francistown High Court for the murder of his girlfriend eight years ago. “It is high time the courts send a clear message to the males of this country that a girlfriend is equally entitled to terminate a love relationship in the same way that a man does,” Justice Gaongalelwe said when dismissing the appeal.

“This is a case where the appellant must consider himself very lucky in the court quo finding extenuating circumstances. The facts are such that another court could have rightly found that there were no extenuating circumstances and would have imposed a death sentence,” Justice Gaongalelwe added.

Mbi was convicted of brutally killing his lover, Khumbulani Kabelo, by slitting her throat back in October 4, 2012 in Tutume Village.

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At the time of the incident, the duo had two children aged seven and two years respectively.

The court heard that on the fateful night at around 22.00 hrs; the deceased was in the company of another man when Mbi attacked them with a knife.

Mbi is said to have stabbed the deceased multiple times and slit her throat as reflected in the post-mortem report.

When dismissing the appeal, the CoA observed that the statement of facts reflects that on seeing the two walking together, Mbi suspected that the man was his girlfriend’s lover. “There is nothing indicating the cause of this suspicion. In fact the record contains a statement made by the said man who says the deceased was his co-worker and that on the fateful day they simply met by chance on the way to the shops,” reads the judgment.

The judgment further states; “if the appellant has good cause to believe he two were lovers, such would not have helped him in view of the brutality with which he executed his acts. Moreover he was following the two already carrying a knife. He never made any attempt at explaining the carrying of that knife.”

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The judges further ruled that a plea of guilty is simply a factor for mitigation of sentence.

“A simple plea of guilty cannot qualify as it does not fall within the category of facts associated with the commission of the crime. A plea of guilty cannot constitute an extenuating factor. This is because by nature and definition extenuating factors are those facts which have a bearing on the commission of the crime…these are factors which were either probably operative in the mind of the offender at the time of the commission of the offence or which probably influenced him to act,” further reads the dismissal appeal.

“In an appropriate case a court would still be entitled to impose a death sentence despite the finding of extenuating circumstance,” the judgment further reads.

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