Tuesday, September 22, 2020

Ian Kirby reserves judgment on Kgosikwena’s appeal

Bakwena regent Kgosikwerna Sebele’s quest for freedom once again hit a snag on Friday when Lobatse High Court Judge Ian Kirby sent him back to jail after reserving judgment in a case in which Kgosikwena was appealing against a four year jail term that had been passed against him for stock theft.

Attorney Shame Taimu, appearing for Kgosikwena, had prayed that his client’s conviction be quashed as he had proven his innocence on a balance of probabilities, and that his explanation could not, in all probabilities, be false.

Taimu submitted that the magistrate in the lower court had accepted the evidence of the prosecution witnesses as the whole truth, and that their evidence was not subjected to scrutiny.

He alleged that there was a conspiracy against Kgosikwena involving the police and some politicians. He submitted that the charges that were laid against Kgosikwena were fabricated, and pleaded with the court to quash them.

Taimu submitted that even in cases where an accused person has not alleged conspiracy, it is the duty of a presiding judicial officer to scrutinize the evidence. He further said that it was a fundamental misdirection for the magistrate to accept the evidence of state witnesses, let alone of them, without scrutinizing it and giving reasons for holding that it was all credible.

He further said that the magistrate had committed a serious misdirection in accepting all the evidence of the prosecution witnesses without analyzing or scrutinizing it.

“I plead with the high court to interfere with such a finding and scrutinize the evidence to determine whether the witnesses were credible and whether their evidence was the truth. It is surprising that the magistrate did not find any inconsistencies or contradictions in the evidence of the prosecution witnesses even after the state admitted there were inconsistencies which they sought to under play by labeling them as minor or immaterial slips,” said Taimu.

For his part, prosecution attorney, Thabo Malambane, first counter appealed against the magistrate’s judgment, saying that the magistrate had misdirected himself in a point of law as to what constitutes exceptional extenuating circumstances, eventually handing out an inappropriate sentence to Sebele.

Malambane insisted that all the state prosecution witnesses were reliable and that their evidence was not shaken by the length of cross examination by the defense.

He further said that the witnesses answered all the questions that were put to them by the defense lawyer appropriately, and that the magistrate’s findings were supported by the witnesses’ evidence.

A handful of Bakwena tribesmen, most of them Kgosikwena’s close relatives attended the trial and briefly spoke to him before he was driven back to Molepolole prison.

RELATED STORIES

Read this week's paper

The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.