Why DPP refused to charge Moroka
Ntibinyane Ntibinyane | Friday January 16, 2015 15:49
In what is turning out to be one of the most bizarre cases in the history of the judiciary in Botswana, the Directorate of Public Prosecutions (DPP) refused to prosecute the De Beers Botswana resident director Neo Moroka for the killing of his employee, Kealeboga Danster in April 2014 despite strong recommendation by the police that he has a case to answer, new evidence obtained by Mmegi reveals.
In September 2014, DPP director Leonard Sechele issue a ‘nolle prosequi’ certificate to stop and discontinue criminal prosecution against Moroka for fatally shooting Danster at his farm in Kgalagadi District citing that the whole incident was an accident and that there was insufficient evidence to prosecute.
According to reports compiled by Botswana Police Service officers in Kgalagadi and police forensic ballistic experts who were involved in the investigation of the matter, Moroka had a case to answer, but the DPP was resolute and unyielding saying the De Beers’ boss is innocent and the deceased was a victim of a freak accident.
Documents leaked to Mmegi for the first time give an insight into why the DPP decided not to prosecute Moroka despite advice from the Police.
In the documents the assistant DPP director and deputy director make a case against the prosecution of Moroka in correspondence to Sechele.
The two directors, according to documents, dismissed findings by Botswana Police forensic experts and senior investigators that Moroka has a case to answer. Instead DPP believed Moroka’s bizarre version of events that he mysteriously shot the deceased in the chest when he had pointed a gun at the dog. (See side bar: Moroka’s mystery dog rose from the dead)
Moroka and Eyewitnesses version
Documents show that on April 22, 2014 at around 4pm at Tsope farm (Moroka’s farm), Moroka led an expedition of five people to kill the stray dog that has been terrorising the farm. The team comprised of Moroka, Balefhi Mphuthele, Thabiso Danster, Kealeboga Danster and Moroka’s minor grandson.
According to statements by witnesses, the men lined up on the eastside facing the tent that housed the dog. Moroka, holding his pump action shotgun, stood on the right near the entrance.
Thabiso was about a metre next to Moroka while Kealeboga (deceased) was three metres from Thabiso on the line facing the tent. Mphuthele was slightly in the back of the tent with the role of banging the tent to scare the dog out of its hiding place.
Moroka’s grandson was a spectator standing behind the four men. According to Moroka’s statement, they all started shouting “Voetsek! Voetsek!” while Mphuthele was banging the canvas of the tent.
The dog emerged from the tent door, about three and half metres from where Moroka was standing lock and loaded with his pump action gun.
He said he fired once at the dog, but surprisingly it was Kealeboga who instantaneously screamed in pain. He was hit on the chest. His autopsy images seen by Mmegi showed six bullet holes that blew his lungs and shattered his liver. One bullet took out a chunk of flesh from his arm leaving a gory wound.
According to Moroka, the bullet mysteriously took an 80 degrees angle turn and hit Kealeboga. Mphuthele who was standing on the left side of the deceased was also hit on the knee but sustained only a small wound.
Immediately after the shooting, Moroka is said to have uttered the words ‘Ke iphuletse ngwana’.
Moroka said he tried to cover Kealeboga’s gunshot wound with his (Moroka) shirt and helped him to walk to the vehicle. After assisting Kealeboga to get into the vehicle, Moroka said he went back for the dog. He shot twice at the dog and missed it with both shots. The dog disappeared unhurt.
Disappointed at missing the dog, Moroka drove Kealeboga, who was fighting for his breath, to his (Moroka) younger brother’s residence who then took him to Makopong Clinic.
Kealeboga died at around 10pm at Tsabong Hospital where he had been transferred from Makopong Clinic. Moroka’s younger brother reported the matter to the police and he (Moroka) was arrested at his residence. All the witnesses corroborate Moroka’s version.
A postmortem examination report that was prepared by Dr Kaone Panzirah Mabaka said that Kealeboga died as a result of a “gunshot injury to the chest and abdomen that affected the lungs and liver.”
Police findings
DPP documents show that the shooting incident was investigated by police officers from stations of Makopong, Werda and Tsabong villages together with a forensic ballistic expert.
Senior Superintendent Gouwe, a forensic ballistic expert, investigated the matter and re-constructed the crime scene according to the statements of the eyewitnesses. He also ascertained the functionality of Moroka’s gun. According to Gouwe the gun was perfectly functional.
Regarding the shooting, Gouwe categorically dismissed the eyewitnesses’ version.
In his report he concluded, “From the crime scene, it is impossible for the victim to sustain gunshot wounds if the gun was aimed/pointed at the entrance of the tent. The only possibility would be the muzzle of the gun pointed at him and the gun being off safe mode and the trigger being pulled to start the firing process, either by intent or mistake on the person in possession of the firearm. The metal piece which was approximately one metre from the tent would not cause any deflection nor ricochet to divert the gun shots at an angle of approximately 80 degrees to the position where the victim stood.”
Another police investigator, Balebadzi Boy who led the initial investigations of the incident presented the police investigation report.
In his report Boy stated, “We evaluated evidence collected and found that what could have happened, which is highly possible, is that the suspect omitted to take proper precaution against probable danger from a loaded firearm in his possession and lost concentration which resulted in the firearm shifting from the intended shooting direction and hence discharged and wounded the deceased.”
DPP’s refusal to prosecute Moroka
The police were convinced that they have a watertight case of reckless and negligence against Moroka. They said they could not charge him with murder, culpable homicide or manslaughter because there was no evidence indicating malice or intent.
With reckless and negligent charges, Moroka faced only a two-year jail term or a fine. DPP has however absolved Moroka from any wrongdoing.
Mmegi is in possession of documents detailing their reasons to let the De Beers boss free. DPP based their reasoning on case law.
In his dismissal of Moroka’s charges, assistant director of public prosecutions Nomsa Moatswi wrote her findings to the DPP deputy director saying, “The evidence of those who witnessed the incident does not in any way suggest rashness or negligence on the part of the accused person.”
Moatswi’s report reads, “In fact for the established facts of this case, no charge ought to be preferred against the accused person because prosecution will not be able to prove that in bringing about the deceased’s death, the accused person had the requisite intention required in a charge of murder, nor will we be able to prove all the elements of manslaughter if a decision is made to charge the accused person with the said offence.”
The DPP deputy director Kabo Leinaeng agreed with Moatswi’s report saying, “The court is not bound by expert (Forensic ballistic expert) opinion if it does not make sense and runs counter to eyewitness testimony. The expert opinion also has to be of such a nature that it is supported by the established facts.”
Leinaeng concluded in his analysis, “…none of the eyewitnesses have alluded to any recklessness or negligence on the part of the accused person. I therefore in the final analysis recommend that a nolle prosequi be entered in favour of the accused.”
investigations@mmegi.bw