FRANCISTOWN: Ex police officer, Atlholang Mujangi has lost a trial within a trial application that he made in the case he stands accused of murdering his former girlfriend, Bokani Sox, a former nurse at Nyangabgwe Referral Hospital.
Delivering a ruling on the admissibility or inadmissibility of electronic evidence and the confession statement that Mujangi gave to Pastor Milidzani Sox of the Breath of Life Church, Justice Lot Moroka said that Pastor Sox told the court in the main trial of how he came to know and record a conversation between himself and Mujangi at his church’s consultation room in Chadibe.
Moroka said that Pastor Sox told the court that he came to know Mujangi after the accused was brought by a church mate to Breath of Life Church.
The judge stated that after Mujangi arrived in his consultation room, Pastor Sox said the former told him that he needed help since he was unable to sleep during the day and night because Bokani was haunting him. Following Mujangi’s confession to Pastor Sox, the latter tipped the police about what Mujangi confessed to him, said Moroka.
After Mujangi confessed to Pastor Sox, the clergyman made an appointment with Mujangi to meet the following day, said Moroka.
Moroka added that after Mujangi and Pastor Sox parted ways, Pastor Sox tipped the police about his conversation with Mujangi.
“The police then gave Pastor Sox a recording device to record his conversation with Mujangi during their appointment the following day. Pastor Sox recorded his conversation with Mujangi which triggered the current application,” said Moroka. The judge added that the defence elected to call no witnesses while the State called three being the pastor, an investigating officer and a police telecommunications expert).
Moroka further stated that after Past Sox recorded his conversation with Mujangi, he handed the conversation to the investigating officer who later gave it to the telecommunications expert.
“The telecommunications expert transferred the conversation between Pastor Sox and Mujangi into a Compact Disk (CD) using a computer as an interface. The police later played the conversation to Pastor Sox who confirmed that the conversation was indeed his and Mujangi. Pastor Sox also confirmed that the conversation was authentic and unadulterated,” said Moroka.
In opposition to the electronic evidence being used as part of evidence, Moroka said, Mujangi through his attorney Kgololesego Segabo objected to the recorded evidence being used as part of evidence because the prosecution had not proved if the conversation was tampered with or not.
“The defence also stated that the police failed to call a voice expert to confirm whether or not the voices of people in the CD were those of Pastor Sox and Mujangi hence their opposition. The defence also objected to the authenticity of the recorded evidence on the basis that Pastor Sox is not a person authorised to take confession statements,” said Moroka.
Moroka added that the act governing the admissibility or inadmissibility of electronic evidence enjoins the prosecution to prove that the recorded conversation between Pastor Sox and Mujangi was unadulterated.
On the other hand, Moroka noted, the defence has not suggested that there was a presence of strange voices, unexplained gaps in the conversation or
There is no doubt about the authenticity of the recording. There is no need for the prosecution to bring the original device that recorded the evidence between Pastor Sox and Mujangi if the state can prove that the conversation was not tampered with.
The prosecution has successfully tendered their evidence on the recording, transfer of evidence from the recording device to the CD and who took part in the conversation,” said Moroka.
On the second point if the confession that Mujangi gave to Pastor Sox was admissible or not, Moroka stated that the confession must be given freely and voluntarily for it to be admitted as part of evidence.
“The defence objects to Pastor Sox’s evidence on the basis that it was improperly obtained. The accused went to Pastor Sox for uncalled assistance and confided to him. Pastors have a responsibility to report anybody who confesses before them that they have transgressed the law. If pastors assist people to violate the law, they may be enjoined in the offences that the accused are charged with as accessories to that crime. Even if Pastor Sox could have assisted Mujangi with anointed water or oil to evade justice, he was equally going to be an accessory to the offence the accused allegedly committed,” said Moroka.
Moroka added: “As a pastor and a responsible citizen, Pastor Sox has a responsibility to inform authorities about anyone who confesses to him that he or she has committed an offence(s). The confession that the accused gave to Pastor Sox is therefore admissible as part of evidence.”
“It thus ordered that the audio recording (CD) is admissible as part of evidence and the confession that Mujangi gave to Pastor is admissible as evidence,” Moroka concluded. After Moroka finished delivering his ruling, state prosecutor Carlos Diwundu told the court that as per procedure, the main case could not continue because Pastor Sox was still in the dock when the application for a trial within a trial was made.
“Pastor Sox informed me that he was in South Africa where he took his wife for medical assistance. Other witnesses can only testify after he finished giving his evidence. We pray for the case to be postponed to another date,” said Diwundu. However, Segabo was disappointed with the discontinuation of the case. He said that the prosecution could have produced a document showing that Pastor Sox’s wife was of ill health and was in South Africa for medical attention.
Moroka said that although Segabo’s worry was reasonable, he was constrained to take any action against Pastor Sox for his absence in court because Sox has never shown that he was in the habit of absconding from attending court when required to do so.
Moroka then set the matter for September 16 to 20 for continuation of the main trial.