The judgment was delivered recently by Justice Michael Motlhabi of the Lobatse High Court. According to the charge sheet, the incident occurred on April 1, 2018, at Ngologa Ward in Lehututu, part of the Kgalagadi Administrative District. The first State witness, Ofentse Moisapula, recounted events leading to the murder.
On the evening of March 31, 2018, after closing his car wash, Moisapula went to the Welkom complex to play snooker. He got a ride home to Lehututu at around 2am from a taxi driver named Kentse. As he was unloading his detergents, he heard the voices of Moduka and Bogosi. Moisapula invited Moduka and Bogosi into his yard for water. When Moduka asked for a cigarette, he (Moisapula) claimed not to have any. However, Moduka then pulled out a cigarette from his pocket, lit it, and passed it to Bogosi, who then passed it to Moisapula.
The friends left, and Moisapula remained outside to finish smoking. Shortly after, Moisapula heard a knock and Bogosi’s voice urgently calling for help, claiming they were being attacked. Rushing to the scene with a flashlight, Moisapula found Moduka’s lifeless body. He sent Bogosi to seek help from a neighbour, one Kapi.
There Moisapula found Bogosi sitting with a very drunk Kapi in the kitchen. They eventually went to the clinic, where a security officer assisted them, whilst Moisapula called for help from another neighbour, Rachel Marumolo, who contacted the police. At the crime scene near the barbershop and combi stop, the police found only two sets of shoe prints: one from trainers worn by Bogosi and another from machesa shoes worn by Moduka. There were no signs of a struggle. Moisapula testified that Bogosi had said, “If my brother (Moduka) had given me the cigarette when I asked, this wouldn’t have happened.” When pressed about this statement, Bogosi evaded the question. The investigating officer from Kang Police Station, Detective Assistant Superintendent Senanka Balotlhanyi, received a call about the stabbing on April 1, 2018. She took over the investigation from Tshane Police Station, where Bogosi was in custody. Initially, Bogosi declined to make a statement. At the crime scene, Bogosi claimed they were attacked by an unknown man in an orange T-shirt, but he could not identify any shoe prints of the alleged attacker. Under questioning, Bogosi admitted, “I was just lying. I am the one who stabbed the deceased with a knife.” He led the police to where he had thrown the knife, which was found 50 metres from the scene.
The prosecution closed its case after presenting witnesses. Bogosi, opting to give unsworn testimony, claimed he acted in self-defence after Moduka slapped him and threatened him with a knife. Bogosi said they fought for the knife, and he unintentionally stabbed Moduka.
According to Bogosi, at Moisapula's home, Moduka asked for a cigarette, but ended up being the one taking out one from his pocket, lit it, and passing it on to Bogosi who smoked and passed it on to Moisapula to finish it. They left and went on their way. It is the testimony of Bogosi that, along the way, he took out a cigarette and lit it, then smoked and passed it on to Moduka. Moduka took issue with it and said to Bogosi: "You're passing on to me a cigarette butt for me to smoke, wa ntlwaela!" Bogosi said that he demanded it back, but Moduka reiterated his words and hurled more insults at him.
Moduka, thereafter, slapped him, yanked at him, put his other hand in his pocket, and pulled out his Okapi knife. Bogosi saw the knife and they immediately fought for it. They fell to the ground and got up. Bogosi finally got hold of the knife. Moduka was still holding onto his hand, fighting to get the knife back. Bogosi said as a result of the scuffle, he ended up stabbing Moduka unintentionally and was afterwards gripped in fear. Justice Motlhabi ruled that Bogosi’s verbal admission was admissible and confirmed that he had stabbed Moduka.
The judge rejected Bogosi’s self-defence claim, stating that the reaction was disproportionate to the provocation. The court found that Bogosi’s life was not in imminent danger at the time of the stabbing and that he had several options to avoid the situation. Motlhabi noted that the prosecution had met the burden of proof, establishing that Moduka died from a stab wound inflicted by Bogosi.
The defences of provocation and self-defence were not applicable, as a slap did not justify a lethal response, and Bogosi had the opportunity to flee or seek help. “In summation, I find that the State has fully discharged the onus placed upon it by the law in proving the offence of murder to the required standard of proof. “I therefore find Bogosi guilty of the offence of murder contrary to Section 202 of the Penal Code (Cap 08:01),” he said.
Bogosi will return to court on June 9 for extenuation and mitigation before sentencing.
