Gaborone High Court Justice David Newman on Friday set aside the conviction of Bakgatla royals and tribesmen in a case in which they were appealing their conviction and sentence for vandalising a Mascom tower.
Mmusi Kgafela, Bakgatla Kgafela, Chilisi Matlapeng, Segale Linchwe, Sekai Linchwe and Seikanelo Sebola, were found guilty of destroying the tower valued at over 1 million Pula in Mochudi in 2009 by the then Regional Magistrate and now Lobatse High Court Judge Barnabas Nyamazabo. The prosecution strongly believed that the accused persons lobbied for the removal or destruction of the Mascom Wireless tower at a kgotla meeting held in Mochudi in October 2009.
When setting aside the conviction and sentence, Justice Newman found that the utterances of each appellant at the meeting gave rise to speculation that he was involved in some way or other with the damage subsequent y cause to the Botswana Power Corporation (BPC) equipment and tower.
“It could even be contended with some justification, that one of the appellants, or some or all of them acting jointly and in concert, probably did have such an involvement. However, neither suspicion, nor probability, is sufficient to found a conviction,” said Justice Newman.
He also found that at the close of the prosecution’s case, the strength of the evidence adduced against each appellant fell below what the magistrate termed “overwhelming evidence.”
Consequently, it was not competent for him to have drawn inference of guilty from the failure of each appellant to testify or lead other evidence on his behalf. On the contrary the facts established failed to prove beyond reasonable doubt, the commission of either offence of which each appellant was convicted…” said Justice Newman.
According to the judge, it was apparent that the trial magistrate was correct in his understanding of section 21 of the code, in that any person maybe charged with, and convicted of the commissions of a crime notwithstanding that he was not the actual perpetrator, provided that he enabled, aided, abetted, counselled, or procured the perpetrator to commit that offence.
However, Justice Newman stated that in order for a conviction to eventuate, it would be for the prosecution to establish, by credible evidence, into which category the accused person fell, and in respect of each appellant, for the trial court to make specific finding in such regard.
In a brief interview, one of the lawyers for the appellants, Dick Bayford of Bayford and Associates stated that the judgment means that his clients have been vindicated.