The Court of appeal on Friday freed Dzikamani Mothobi but upheld the verdicts over his former Botswana Defence Force colleagues, ending a protracted marathon case that nearly polarized the nation over the conduct of the security operatives towards suspected individuals.
Former BDF members, Gotshosamang Sechele, Ronny Matako and Boitshoko Maifala were convicted of murder by the high court for killing John Kalafatis – a suspect in a robbery case.
However, their colleague Mothobi was acquitted of murder but convicted of accessory after the fact to murder ÔÇô an offence that says although he took part in the commission of the crime, he did not actually kill the suspect.
Absolving the former sergeant in the army, a panel of three judges, Alistair Foxcroft, Lord John Abernethy and Steven Gaongalelwe, acknowledged Mothobi’s submission that the High Court was not competent to have convicted him of being accessory after the fact as the only charge he faced was a charge of murder.
Judge David Newman, convinced by the evidence before him, decided to convict Mothobi of accessory after the fact of murder ÔÇô a blunder the judges agreed the High Court was not competent to convict him of such an offence.
“The point was conceded by the respondent, in my opinion rightly so. Sections 187 to 197 of the Criminal and Evidence Act provide that in number of prescribed circumstances a person charged with one offence may be convicted of another offence although he or she was not charged with it. None of those provisions, however, applies to the present situation. Where a person who is facing a charge of murder is acquitted of that offence, there is no provision which allows a court to convict him of being an accessory after the fact to murder although he was not charged with it,” the judges conceded with Michael Hellens, a renowned South African attorney representing Mothobi and colleagues, adding, “accordingly he cannot be convicted of that offence unless he had been charged with it.”
“Since he was not charged with it, the judge in my opinion was in error in convicting him of that offence,” the judges further concluded, quashing both Mothobi‘s conviction and sentence.
Turning to the appeal of Sechele, Matako, Maifala, the judges would not take kindly to Hellens submissions who was poking holes at almost every corner he navigated over the high court decision.
From the onset, the judges quashed as irrelevant the argument by the appellants that their evidence was at odds with the evidence of the witnesses for the prosecution, insisting a critical analysis of evidence of the witnesses for the prosecution in order to test reliability was carried out by the presiding judge.
The judges acknowledged judge David Newman’s cautious approach with regard to the evidence of Kalafatis’ friends and, most importantly, of his brother in view of the interest they had in the manner of his death, saying such caution was analysed in the way it should have been and throwing away versions by the appellants such caution was never exercised despite their close relationship with the deceased.
“I am not persuaded that there is any merit in their submissions. It is trite that one should not look at passages in a judgment in isolation and out of context. The judge structured his judgment in a way that was easy to follow and was not subjected to criticism. After a few introductory paragraphs he narrated the non-contentious evidence. Then he set out the state case and the evidence led in support of it, followed by the defence case and evidence in support of it. He made reference to the additional evidence which the court had called for. He then dealt with the law that was applicable to the case. And finally he set out his findings,” the judges said, adding that an array of submissions against the trio was inescapable – thus confirming their convictions and sentences.
While Mothobi will eventually head to the barracks and resume military exercises and daily duties, confirmation of convictions and sentences means Sechele, Matako and Maifala will continue with their eleven-year sentence, putting to an end the landmark case.