High Court acquits murder accused
Lebogang Mosikare | Friday January 25, 2019 12:30
The State alleged that the accused, Oageng Bothodilwe, killed Moagi Thakuwe on August 24, 2013 at Depa cattle post in the Central District. Justice Gaolapelwe Ketlogetswe stated that in order for the charge of murder to succeed, the prosecution had to prove beyond reasonable doubt that the person alleged to have been killed is indeed dead, that his or her death was caused by act or omission of the accused and that in causing the death, did so with malice afterthought. Ketlogetswe also explained that for the charge of murder to sustain, the accused in causing the death of the deceased acted unlawfully or had no legal justification for his or her actions.
“In the present matter, there is no dispute that Thakuwe is dead. His death has been confirmed in terms of the post-mortem examination report prepared by the consultant forensic pathologist Dr Kaone Panzirah Mabaka, which was received in evidence,” the judge said.
According to Mabaka’s findings, Ketlogetswe said, the death of the deceased was due to skull and brain injuries due to blunt force trauma to the head.
“It is also revealed in the post-mortem examination report that the deceased had a skull and brain injury. It is common cause as well that the head injury observed on the deceased by the pathologist, which caused his death was inflicted by the accused when he hit the deceased with a half-stock-brick,” Ketlogetswe said.
The only questions failing for resolution, the judge noted, are whether or not in hitting the deceased with a half-stock-brick, the accused intended to cause the death of the deceased or at the very minimum intended to cause the deceased grievous harm and whether or not in hitting the deceased with the brick, the accused had any legal justification to do so.
“The only issue in this matter as the State and defence counsel have pointed out is whether or not there is any partial or complete justification for the accused person’s conduct in causing the death of the deceased. The evidence as to what may have occurred on the day the deceased was assaulted by the accused with a brick came mainly from Matshwenyego Sokisi and the accused himself,” Ketlogetswe said.
According to Sokisi, Ketlogetswe said, on that fateful day he was in the company of Bothodilwe and Osimolotse Dipotso and they were drinking some traditional alcoholic brew.
“At some point the accused and the deceased started playing by way of exchanging insults, referring to each other’s private parts. They then started manhandling each other but later stopped. Thereafter, Sokisi said the accused borrowed one of the deceased’s horses to go and look for his own horse.
Sokisi also testified that the accused took a long time to return from looking for his horse,” Ketlogetswe said.
After his return from looking for his horse, the judge said, the accused went to his hut and started asking who had entered his hut.
“The deceased, according to Sokisi, then asked the accused who did he think had entered his hut. Thereafter, the deceased went to the kraal and released the cattle including the calves, which the accused had earlier on separated from their mothers and kraaled. It was for this latter reason that the accused, according to Sokisi, asked why he was releasing the calves with their mothers and complaining generally that they would not be able to milk the cattle for relish the next morning,” Ketlogetswe said.
Ketlogetswe added that Sokisi also testified that the deceased dismissively told the accused that he had nonetheless released the calves as well and then started chasing the accused, who ran away and escaped from the yard by jumping over the perimeter fence.
“In the present case, there is a dispute between the accused and Sokisi as to what exactly happened immediately before the deceased was struck with a brick by the accused. Sokisi’s evidence is that the deceased was not advancing towards the accused whereas the latter stated in his evidence that the deceased was coming towards him with clenched fists. This in my view, is a case of oath against oath,” Ketlogetswe said.
In the present case, Ketlogetswe added, he watched both Sokisi and the accused at the time respectively giving evidence before court.
“Sokisi impressed me as a person who was not keen in disclosing aggression on the part of the deceased against the accused on that fateful day. This in my view is understandable given the fact that Sokisi and the deceased had been drinking alcohol together since morning on that day.
Sokisi had also had a hand in provoking the helpless accused by not only entering his hut but also searching his bag and taking his shirt without the accused’s authority and later throwing it at him unceremoniously,” Ketlogetswe said.
The deceased, Ketlogetswe noted, has been tormenting the accused since morning but Sokisi was economic with the truth only telling the court that he took the altercation between the two as nothing serious. “This was in spite of the fact that the deceased had chased after the accused with a small axe, according to the accused, leading the latter to jump over the perimeter fence to escape the deceased’s attack.
Sokisi has neither denied that the deceased was armed with a small axe at the time nor that he did not see the said axe. It is possible on the evidence in this case that Sokisi may have not seen the axe because at the time he was standing next to his horse saddling it behind the hut,” Ketlogetswe said.
His view, Ketlogetswe continued, may have been obstructed. “It is also possible that he was not being truthful because according to his evidence, it was immediately after that that he allegedly reprimanded the deceased that what the latter was doing was not a proper way of ‘playing’.
The reprimand could not have come from nowhere. In the circumstances of this case, I am satisfied that the State has not succeeded in negativing the defence of self-defence and the accused is entitled to be given the benefit of the doubt,” Ketlogetswe said.
The accused used a weapon of opportunity, the half-stock-brick, Ketlogetswe noted, which was part of the fireplace where he was standing at the material time to defend himself.
“This court cannot adopt the position of an arm-chair critic and hold that the accused should have run away or that he should have looked for a lesser fatal object. This is not what our law on the subject says. In the result, the verdict of this court is that the accused is not found guilty and he is acquitted and discharged,” Ketlogetswe said. Attorney Mboni Manyothwane represented the accused while Gonayaone Ketlhapetswe represented the state.