Insufficient evidence frees murder accused
Lesedi Mkhutshwa | Wednesday March 18, 2026 06:00
The case, which was centred on a fight over a goat at a kraal in Goshwe on May 26, 2018, saw conflicting accounts of whether a spear or a knobkerrie was used.
When delivering his ruling, Francistown High Court Chief Justice Gaolapelwe Ketlogetswe ruled the state had failed to prove murder beyond a reasonable doubt, highlighting unclear evidence on the weapon used.
According to Ketlogetswe, following the submissions by the prosecution and defence counsel, it is his view that the evidence in this case establishes beyond a reasonable doubt that there was a fight between the accused and the deceased.
However, he said that it is not clear from the evidence as to who, between the accused and the deceased, had started the fight.
'It is also clear on the evidence that the deceased, to the extent that he opened the accused's kraal without the latter's authority, acted in a manner provocative towards the accused,' he continued.
He stated that there is no evidence that the accused was seen carrying a spear when he went over where the deceased stood, where they ended up fighting. In his view, Ketlogetswe said this is a borderline case, and in the absence of evidence pointing to the accused as the aggressor, the accused must be given the benefit of the doubt.
As a result, the state has not succeeded in proving the guilt of the accused for the offence of murder, in terms of Section 202 of the Penal Code, or for any other lesser offence beyond a reasonable doubt.
Therefore, Ketlogetswe said the accused is accordingly found not guilty and is acquitted and discharged of murder charges. Earlier on, he stated that Maphepha’s attorney, Comfort Dubani, had made admissions pertaining to the prosecution's evidence, thus obviating the need for the prosecution to prove the facts so admitted.
He said the admissions related to the fact that the deceased was indeed dead and that he died as a result of a severed left internal jugular vein due to a stab wound to the neck.
The cause of death was recorded by consultant forensic pathologist Dr Shathani Mugoma.
'It is not in dispute that the injuries that the deceased succumbed to were caused by the accused. The only dispute, as I understood the accused, and from the written submissions by Dubani, is whether the injuries observed on the deceased were inflicted using a spear, as the prosecution submits, or a knobkerrie, as submitted by Dubani,' he continued.
Ketlogetswe said the third prosecution witness, Dr Mugoma, told the court that the injury he observed on the deceased's neck during the post-mortem examination was a sharp-pointed wound to the neck, going downwards, with a depth of eight centimetres.
Importantly, Dr Mugoma did not discount during cross-examination by Dubani that the injury could still have been caused by a sharpened wooden object or instrument.
The admitted evidence by Malebogo Boy is that on the evening the deceased sustained the injuries that led to his death, he fought with the accused, where the two were observed fighting using knobkerries.
Ketlogetswe further stated that, according to Boy's submitted statement, the deceased had come looking for his Boer goat and proceeded to a goat kraal belonging to Eddie Larckason, the accused's employer.
'It would seem that the accused was not amused by the deceased's conduct in proceeding to the kraal to search for the goat without the accused's authority. Malebogo tried to intervene, asking the duo why they were fighting, but according to her, the accused threatened her, telling her not to interfere in their affairs. Malebogo left them and hid herself behind a Mophane tree,' he added.
The prosecution's first witness, Sivelaphi Tshambane, stated that Boy called the deceased to where she was by the kraal, and she told the court that she asked the deceased not to go where he was being called.
Furthermore, Tshambane shared with the court that a while later, the deceased came running and jumping about, saying that he had been stabbed with a spear by the accused. Additionally, the deceased fell, and Tshambane observed that he was bleeding from the neck.
Ketlogetswe stated that the accused's evidence from the dock was that he did not make any reference to having used a knobkerrie to assault the deceased, even during the fight.