CoA overturns 'mob killing' murder conviction
Mpho Mokwape | Tuesday November 8, 2022 06:00
The now free man, Bathusi Mpitsi, was convicted on a single count of murder and sentenced to 18 years in prison.
He was accused of abetting and aiding in the mob killing of the deceased (unnamed) at Mahalapye in 2016 but he was the only one who stood trial as it was alleged that he hit the deceased with a metal pipe though he denied assaulting the deceased.
He claimed the metal pipe he had was only for his own protection as he had been a victim of assault before. However, the CoA bench of Chief Justice Terence Rannowane, Judge President Tebogo Tau and Justice Mercy Garekwe disagreed with the trial court saying there was not enough evidence to have convicted and sentenced the accused.
When reading the judgment, Justice Garekwe said there was no attempt by the trial court to point to the part where the convict partook in the commission of murder. “It is very clear that even if there was evidence pointing to the observance of the commission of the offence by the appellant, he could not base on merely observing the commission of an offence and not reporting same, be deemed to have abetted and aided in some way the commission of the crime,” she said.
The judge explained that none of the witnesses, more so those who were in the vicinity of the crime scene and present at the time of the assault on the deceased, pointed a finger at Mpitsi as the one among those in the mob who hit the deceased with a metal pipe let alone any other object on the head. She pointed out that there was only singular evidence which pointed to someone hitting the deceased with an object on the head. “The post-mortem report concluded that the deceased died as a result of injuries to his head.
It is therefore reasonable to assume that the person seen by one witness hitting the deceased was the one who administered the fatal blow. The [problem], however, is that neither that one witness nor any other witness testified that the person was the convicted,” Garekwe said. The judge also noted that the witness that saw the deceased being hit by an object on the head could not categorically state that he did not see clearly what the object was and that it could have been a metal pipe, or an axe like some witnesses said or any other object that could likely cause a circular depressed fracture to the head of the deceased.
Justice Garekwe emphasised that the alleged weapon, likely a metal pipe that the convict had in his possession on the night in question, came through the evidence of those who were not present at the time the assault was perpetrated. “These were the two independent witnesses who were led by the appellant to the side of the house at which he retrieved a metal pipe after he was asked by a police officer to retrieve the item he used to hit the deceased,” she noted. The judge said even the metal pipe was not subjected to any forensic analysis therefore it was impossible to conclude without any other direct independent evidence linking the pipe to the deceased’s assault that the pipe was indeed the one used to inflict the fatal injuries on his head.