More jail time for deathrow appellants

Two death row inmates who were condemned to death for killing an old man for insurance money will have to wait a little longer before their appeal can be heard.

Their appeal which was slated for the January session had to be postponed after the third convict in the case who is serving 25 years rejected the High Court record which was to be used in the appeal. Daniel Sime and Gaolatlhe Thusang were sent to the gallows for killing the father of another co-accused; Agisang Motukwa for insurance money.

Motukwa a former prison warder, who is thought to be the mastermind of the murder, was given a 25 year jail term. They were convicted for murdering Agisanyang’s father, Motlhanka Motukwa on August 12, 2008 at Ntlhantlhe village. The trio is appealing both the conviction and sentence.

When the appeal hearing was to start this week attorney for Motukwa, Kambai told court that they have filed a notice of objection of the court record and one of the remedies possible is postponement of the matter so that the court record could be sorted out. He said the record is not in order and it is difficult to understand what has been transcribed.

“The other issue is the allegations that there was a breakdown between my client and his erstwhile lawyer during trial and this has also not been reflected in the court record. According to the instructions I have the judge in the lower court was notified about the issue of communication breakdown but it was not addressed.”

It is alleged that Motukwa’s lawyer, Shame Taimu, who is a foreigner could not communicate with his client in Setswana to take instructions. He has since left the country.

Other attorneys in the case Moses Kadye and Dumesizwe Mthimkhulu pleaded with the court to continue the case as their clients have been on death row for two year now. Mthimkhulu said he came prepared and pleaded with the court to have the matter heard during the ongoing session. Kadye concurred but the court ruled in favour of Kambai’s client.

A panel of three judges led by Justice Isaac Lesetedi ordered that since the allegations made by Motukwa are serious, the matter has to be postponed so that they are dealt with. Lesetedi said Motukwa has to make an affidavit and those implicated in the allegations be given an opportunity to comment on the allegation.

“Due to the allegations made in the notice file on January 11th 2016 the case is postponed to the July 2016 Court of Appeal session. Motukwa is ordered to file an affidavit within 14 days setting out in details the allegations and particulars thereof which appears in the notice of appeal. Such affidavit should be served within 14 days from today (Tuesday) upon the Registrar to be transcribed and be served to the concerned judge (Justice Michael Leburu) and the erstwhile lawyer-Taimu. All the parties in this matter should also be served with the affidavit. The erstwhile lawyer shall deliver his answers to the allegations and the trial judge will also file his comments contained in the affidavit. Comprehensive heads of appeal should be filed not later than the 30th April 2016”, Justice Lesetedi ordered.

Justice Leburu of the Lobatse High Court when condemning Sime and Thusang to the gallows said the duo was driven by greed to murder Motlhankana Motukwa. He stated “having regard to all factors highlighted both singularly and cumulatively, Sime and Thusang’s involvement in the deceased was purely for financial gain.

They were hired by Agisanyang to kill his father and indeed killed him.”
He said evidence showed that the three convicts and an accomplice witness Modise Sekai went to the outskirts of the village of Ntlhantlhe and sat on top of a hill where they planned and conspired on how to kill the deceased.

Sekai who turned accomplice witness told the court during trial that on the day in question, Motukwa phoned and requested that he organise people to carry out the murder of his father. He told court that although he was supposed to tell Sime and Thusang about the plan to kill Motukwa he developed cold feet.

Sekai stated that Agisanyang then called the three of them to his family home where he instructed them not to be seen together as the mission they were to undertake was very sensitive. He further told court that after they had agreed on the plan, Agisanyang drove them back to his place where they found his father, Motlhanka doing the laundry. They would later enter the old man’s room where they killed him.

“Thusang then pounced on the old man and grabbed him by the neck from behind strangling him. Sime joined in by holding the old man's legs so that he could not kick around. I was later on instructed by Thusang and Sime to tie Motlhanka's legs with a rope and pull while Thusang was holding on to Motlhanka's neck and Sime applied pressure on Motlhanka's stomach. While doing all this Agisanyang was acting as a watchman to ensure that no one came near the house. Agisanyang promised to reward us with P5 000, 00.”