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Cab driver killers appeal conviction

KAONE MAJE
Court Of Appeal PIC: MORERI SEJAKGOMO
In an attempt to escape the hangman’s onose, Moabi Mabiletsa and Matshidiso Boikanyo, both convicted murderers of a cab driver, lodged their case at the Court of Appeal CoA).

The convicts’ lawyers, who are in a race against time to turn around the convictions, appeared in court each hoping to help their client get the freedom they sought.  Mishingo Jeremiah, an attorney famous for liberating convicts on deathrow represented Mabiletsa, one of the appellants. Mabiletsa was found in possession of a knife that had the DNA of the deceased on it while Boikanyo, the first appellant owned the cellphone that made the call to request cab services from the deceased. 

The cellphone was hidden and later confiscated by the police after being traced through an IMEI number. Attorney Jeremiah presented his case to CoA Judges, Singh Walia and Monametsi Gaongalelwe. Mishingo argued that circumstantial evidence did not carry the same weight as substantial evidence. He told the bench of judges that circumstantial evidence was overwhelming and therefore should be narrowly examined.

 Mishingo presented the appeal of his client based on two grounds: partial evidence and DNA profile mix-ups.  “DNA results were partial and not complete. From the 15 marker kits, only 10 were utilised and that is questionable,” he said.  Mixed profile is a situation where there are a number of contributors to the item that is being examined. “The presence of DNA profiles of other people weakens the inferences of circumstantial evidence. The forensic expert said that there were more than two contributors to the DNA profile,” he elaborated. 

He questioned if the other DNA profiles not subject to this case did not contaminate the subjected DNA.

Mishingo also queried the statement given by the girlfriend of the second appellant. It was revealed by the attorney that the statement was taken right after the forensic results were released and handed to the prosecution.  Boikanyo, whose cellphone was used to call the deceased cab driver, was represented by Phendukani Elijah. Elijah appealed the sentence, arguing that the case was not adequately proven, and that the prosecution provided no evidence that the cab picked up the accused. “The caller used the first appellant’s cellphone to call the cab. The prosecution then implied that the customer was picked up at Puma Fuel Station and his destination was changed

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from University of Botswana to Block 9.

“The evidence gathered by the prosecution only shows that one person was picked up by the cab driver, therefore, only one person should be convicted because the evidence purports so,” advocate Elijah said.

 “My client never left Tlokweng nor called a cab, but rather someone used his cellphone to request cab services. The deceased made a statement ‘ke bolaelwang ke motho?’(why is a person killing me), which indicates that there was only one murderer.  “Evidence also indicates that the deceased screamed outside the house of the eyewitness and instantly sped-off. The car stopped not so far away and only one man got out, inspected the car and sped off again,” the legal representative argued further.  Justice Singh pressured Elijah to admit that his second reason was irrelevant and should therefore be dismissed.  Jeremiah’s argument on the second ground was that there was no tangible evidence that indeed the cab driver picked the first appellant, Boikanyo and not any other person who had the intentions of killing the cab driver.

He also said that despite the fact that his client’s phone was the one used to call the cab driver for his services, there was no other evidence that linked him to the murder.  After the lawyer concluded his argument, Matshidiso cited his displeasure of misrepresentation, implying that the attorney did not represent him and say what they both agreed on. But the judges dismissed him instantly saying that the attorney was a professional legal representative whose argument will be listened to.

  The prosecution, represented by the Directorate of Public Prosecutors refuted claims that only 12 and not 10 markers were used as implied by attorney Jeremiah. The prosecution rubbished claims that the girlfriend of the second appellant provided a statement only after the release of the DNA results.  According to the prosecution, the girlfriend visited the second appellant in prison a couple of times before issuing a statement to the police. As it stands, the judgement of the appeal will be heard on February 8, 2019.

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