Relatives, some coming from as far away as Serowe to lend support to their kin, Modisaotsile Kethamile, threw caution to the win and shouted with joy, disrupting court proceedings. Their loud chatter as they filed out of the court forced the judge to wait for a few minutes for the din to die down.Through Francistown attorney, Mishingo Jeremiah, Kethamile challenged the conviction and sentence arguing that the basics of trial were not explained to him. This includes the right to cross-examine and the purpose of cross-examination. "It is my considered view that in the circumstances of this case that the applicant was not afforded a fair hearing and in my view this has resulted in a failure of justice," Makhwade ruled.
He said the case record does not reflect the details of the explanations given by the trial court. "What is apparent, however, from the record is that the applicant did not ask any questions that were related to eventual defence," he said.He said the accused did not lay any foundation for his defence. "It is apparent from the record that the magistrate was probably not aware of the nature of the defence until the applicant gave evidence. I say so because if the foundation of the defence had been laid, relevant questions would have been asked," said the judge. He added that it follows from the failure to ask relevant questions that the applicant may not have been aware of the fact that he should have laid the foundation of his defence in asking questions to the complainant and another witness. Makhwade stated that in his view, the matter could be resolved with reference to only one ground of appeal.
