Court frees Kgosikwena

MPHO MOKWAPE
Correspondent | Monday July 30, 2012 00:00

 

'Jehofa modimo o galalelang sedi la ditshaba,' Sebele said after judges freed him on Friday.Family members who thronged court, held a short prayer session outside the court to thank God for Sebele's release. Justice Lot Moroka granted Sebele leave to appeal in 2011 after he was slapped with a four-year jail term by the Molepolole Magistrate Court in February 2010 for stealing a billy goat belonging to Mhiko Gabatlale of Sojwe in 2009. Justice Ian Kirby dismissed his first appeal and added a year on his sentence.

The CoA said on Friday that in all the circumstances, the guilt of Sebele was not proved beyond reasonable doubt.CoA judges added that they were not satisfied that the state proved beyond reasonable doubt that the claim of right held by Sebele changed into a fraudulent intention to appropriate the billy goat. The court stressed that there was danger of mistaken identity by witnesses of both the state and the defence, saying as such the conviction was not safe.

When granting Sebele leave to appeal, Moroka said state witnesses failed to describe the billy goat in question.He also said there was no evidence which showed that Sebele had the intention to defraud at the time he bought the goat as tribal authorities were present. The CoA stressed that it was clear from the record that there were at relevant times two billy goats, which looked very similar, and both strayed from their owners.

'All in all, there are many features of this case which raise disquiet. Would the police constable who recorded a statement made under the name of state witness, and the Senior Chief Representative who was present have connived with Sebele to falsely accuse state witness of accepting what Sebele had reported, if the state witness had not accepted what Sebele said. State witness, according to the constable had not disputed what Sebele had said about finding a different earmark on the goat at Frazier's Kraal,' the judges said.

The CoA further said all the evidence presented point to an honest belief that Sebele had no intention to defraud and that the fact that a state witness, Fraiser did not sign the statement does not, as the only reasonable inference, mean that he disagreed with the contents. The CoA emphasised that Fraiser may have simply not wanted to put his name to a document, which could be used against him since it showed that he was prepared to pay compensation to escape a charge of ear tampering. 'What is more and as Moroka pointed in his judgment granting leave to appeal to this court, it is significant that the defence witnesses all referred to the 'white forehead' of the goat in the album.

It is of course possible that this was a continued and silly attempt to counter the evidence of state witnesses and others that the goat was not 'tshweu tlhogo khibidu' because it had a white head,' CoA judges said. They further said what was rather surprising to say the least was all state witnesses said the billy goat was 'white with a red head' but did not mention its white forehead.  The court then ordered that conviction and sentence imposed on Sebele by Magistrate Dumisane Basupi, which was confirmed by Kirby, be set aside. John Foxcroft, Stanley Moore and Dr Seth Twum decided the case. Sebele's attorney, Kgosiitsile Ngakaagae said they have not yet decided their next step. He said they were happy that justice had prevailed at last. He said it is up to Sebele to see if he sues for malicious incarceration or not.

'At this stage, I cannot decide what to do for Sebele unless he gives me instructions to pursue a civil case. For now we are relieved that he is free and will be going home to his family. We are happy with the outcome despite the fact that it came late. There is nothing we can do about it. We are just happy,' Ngakaagae said.  He further said it would be up to the state to see if it can reinstate him to the position he lost upon conviction. At the time the charges cropped up, Sebele was the president of the Customary Court of Appeal.