Judge Sunderland of the Court of Appeal recently dismissed an application brought before his Court by Lesego Arabang, the owner of Sedudu Butchery, who wanted leave to appeal his conviction of five years for stock theft.
Sunderland said the case could not be heard in the current session of the Court of Appeal because “the appeal has no reasonable chance for success.”
Aguing for appeal, Arabang had stated that judges who turned down his appeal in the past, amongst them Lobatse High Court judge Ian Kirby, had erred in finding that his explanation was false beyond doubt.
He also submitted that Kirby had misdirected himself both in law and fact by not taking note of evidence from a defence witness who vouched that the permit for sale of cattle was genuine.
Arabang further charged that Kirby erred by holding that an essential witness, known only as KB, was untraceable as prosecution had failed to prove beyond reasonable doubt that he was indeed untraceable.
The state’s case brought before the Court by Mpho Mmolainayana, on the other hand, was that the court correctly found that the appellant’s explanation was false beyond reasonable doubt and that it was common cause as the Courts found that the six cattle forming the subject of the charge were stolen and that Arabang is the one who had conveyed them to the Gaborone abattoir for slaughter and that it was done with a permit Arabang said was genuine. Mmolainyana also submitted that the transaction was unlawful in that the removal permit of the cattle bore the name of the applicant’s butchery, Sedudu, when it should have had the name of the person who was removing the cattle.
In another matter, the judge dismissed an application for leave to appeal brought before the Court by Ikanyeng Masenya who was sentenced to ten years imprisonment for rape. Before the current application to the Court of Appeal, Masenya had unsuccessfully made several other applications to the High Court. Masenya’s grounds of appeal are that the judge erred and misdirected himself in finding that the state had proved beyond reasonable doubt its case against him and that the judge misdirected himself in finding that there were no other competing inferences. Mmolainyana, for the state, opposed the application saying that it had no reasonable prospects of success.