Police bungle leads to murder accused acquittal
Lebogang Mosikare | Friday June 29, 2018 15:05
Makhwade made this clear when acquitting Zimbabweans, Bhekimpilo Lunga, Godknows Kgope, Themba Mlilo, and a local, Lebogang Moeng.
The quartet was accused of murdering Nyenzani Nyathi, a Zimbabwean at Morupule lands near Palapye on September 26, 2014.
The accused had pleaded not guilty to the charge and gave unsworn evidence.
Makhwade said the onus of proving that the accused committed the offence lies with the State to prove beyond reasonable doubt that the accused indeed committed the offence.
“The Investigating Officer (IO) gave evidence that he inspected the body of the deceased at Palapye Hospital on September 27, 2014 and then arrested the accused,' he said.
“The IO said the accused told him that they fought and dragged the deceased to Morupule Bridge, but he was alive when they left him at the bridge.'
Makhwade, who was visibly unhappy with how the IO handled the case, stated that the officer did not take statements from any of the accused persons.
“No explanation was given for such omission. No details were given about what each of the accused told the IO, nor their roles in the murder.
“No explanation was given about what role each of the accused played in the commission of the murder.
“No explanation was provided about the weapons that were used in the commission of the murder and no explanation was given about what even caused the fight,” Makhwade said.
Makhwade stated that the IO, detective sub-Inspector Andreas Dibuile, who has 25 years experience as a police officer, said that the State’s star witness Thataemang Montsheki testified that on September 26, 2014, she was at Morupule lands.
“Montsheki said she was selling a local alcoholic brew (Khadi), adding that all the accused persons were at her drinking spot. She stated that the accused and one Rasta remained behind after all customers had left at night.
“She said she realised that there was a quarrel between the accused and Rasta whom she also referred to as Dread.
“Montsheki said Rasta started throwing bottles at the accused,” Makhwade continued.
The judge said that Montsheki told the court that Lunga then took a log and hit Rasta on the head who then fell down.
“Montsheki said the other three men then joined in the fight. She further stated that after the other three men joined the fight, she ran inside the house and locked herself in.
“She said that around 5am she heard voices outside. She said that Kgope knocked on her door and told her that they left Rasta in a very bad state after beating him,” Makhwade said.
Makhwade added that Montsheki told the court that Kgope told her that Rasta appeared dead before Kgope disappeared.
“Montsheki said after Kgope’s departure, the police arrived and arrested her. She said that she did not tell them what transpired until she was released from custody eight months later.
'After Montsheki was released from custody, she told the police that she did not see what the accused used to assault Rasta except that she saw Lunga using a log to beat Rasta,” Makhwade said.
Makhwade said no attempt was made to link the person found dead at the bridge, or the mortuary with Rasta.
The judge further found that Montsheki contradicted herself when she gave oral evidence in court and when she gave her testimony to the police.
“In her statement to the police, Montsheki said that the accused used logs and benches to assault the deceased. She also detailed how they dragged Dread along the gravel road. She also detailed how the accused informed her that Dread was dead. She also gave details about what transpired the following day,” Makhwade said.
In her cross-examination, Makhwade noted, Montsheki denied everything she told the police.
“I must state that Montsheki is not a credible witness who can be relied upon. She said that she lied to the police by telling them that she knew nothing.
“She also told the court that she could read and write. When she was asked to read her police statement in court, she said she could not do so because she was having a headache.
“She was doing so in order to deny the court to see that she could read and prevent the court to see that she gave contradictory evidence in her oral evidence and police statement,” Makhwade said, reiterating that Montsheki was clearly a dangerous witness whose testimony cannot be relied upon.
Makhwade said the forensic pathologist testified that the deceased was found dead along the Serowe-Palapye road on September 29, 2014.
“The forensic pathologist was not cross-examined. In his report, he said that he was not sure when the deceased passed away. He said the death may have happened a week before he examined the body.
“The IO stated that he started inspecting the corpse on September 27, 2014 at the mortuary, but the doctor’s report said that the body was found on September 29, 2014,” Makhwade said.
One of the questions that arose, Makhwade said, was whether the body found along the road was the body of the person allegedly killed by the accused.
“No attempt was made to link the deceased with the body that was found along the road. Also, the IO was supposed to take statements from the accused, but he did not do so.
“There is no evidence that the accused caused the death of the deceased. There is no evidence that the body that was examined by the pathologist is the body of the same person who was found along the road on September 27, 2014,” Makhwade said.
He added: “In a trial, the court operates on evidence that is led before it. There is no room for speculation.
It is the duty of the State to lead evidence to prove the charge against the accused and not the duty of the accused to do so.
“The State’s case collapsed on its own and therefore each of the accused is hereby acquitted and discharged of the murder”.
While the judge said that due processes of the law should be followed to deport the three Zimbabweans to their country if they came to Botswana illegally, the same cannot be said about Moeng who is facing another charge of murder that he allegedly committed while he was on bail for the alleged murder of Nyathi.
Attorneys Reneetswe Rabosotho, Kesegofetse Molosiwa, Chiche King and Ricardo Seabueng represented the accused.