Francistown High Court Judge, Mphaphi Phumaphi, last week acquitted and discharged Chimbidzani Tumisang and Johnson Masowa of three counts of armed robbery and one count of murder, saying that the state had failed to prove its case beyond reasonable doubt.
Initially, Tumisang and Masowa, together with Tshegofatso Chalaomane and Mmoloki Rampeba, were charged with having robbed Serowe Marketing Cooperative and Filling Station of P7454, 79 on March 27, 1999; Welcome Bar and Bottle Store of P5197, 55 on February 28, 1999, and Dennis Service Station of P2096, 80 on March 15, 1999.
Tumisang and Masowa were also charged with the murder of Kgosietsile Mathekela.
In his judgment, Phumaphi said that eye witnesses to the robberies and the murder were not able to identify the perpetrators, except for Chalaomane, who later became an accomplice witness leaving the only evidence implicating the accused persons being what the accused persons had told the police and the confessions made to the judicial officer, their pointing out of exhibits, as well as what the accomplice witness told the Court.
On the evidence given by Chalaomane, Phumaphi said it was full of inaccuracies and was not safe to believe. He also said that Chalaomane had lied during cross examination and that the Court was never going to know what part of his evidence was true. The witness, he said, is one who is peculiarly positioned to mislead the court in such a way that his story appears convincing as he claimed firsthand knowledge and that the Court would, therefore, not have regard for his evidence.
Similarly, he said, the evidence by district officer, one Dipao, could not be used as evidence because she had not been sworn as a Justice of Peace in terms of the law.
On police evidence given by a certain Sergeant Kgatshe, Phumaphi said that the evidence was not taken procedurally in that there is no record of the admissions by the accused persons to the police to assist the court to determine whether they amount to a confession or a confirmation of the confession made before a judicial officer. The only available record, he said, is that of a diary written by a police officer, a certain Megale, which did not help much as it contradicted what was written by Kgatshe.
In kgatshe’s evidence, he said that there were a lot of instances where it was clear that he did not tell the Court the whole truth, either from failure of his mind, as the case took place years ago, or just reluctance to tell the Court the whole truth.
For instance, he said that Kgatshe had told the court that a bundle of receipts that he had produced in Court were found at a place where the accused persons had led them to, but that, after an investigations, a diary was read to him.
On the issue of the recovery of the gun alleged to have been used in the armed robbery and murder, along with the balaclavas in Bojelakhudu lands, where the accused persons are alleged to have led the police, the Judge said that Kgatshe had told the Court that the gun was sent to the Botswana Defence Force for ballistic testing but that no ballistics expert evidence was tendered in Court as evidence or a report on pellets or cartridges that were found in the body of the deceased.
Ballistics evidence, he said, could have helped to prove whether the gun was used to fire the bullet that caused the death of Kgosietsile Mathekela.
The judge concluded by saying that the way in which the case had been investigated could only be described as unfortunate in view of the seriousness of the charges the accused persons were facing and that elementary steps, such as collecting finger prints, were not taken. Further, he said, despite the fact that there was evidence that the gun had been submitted to a ballistics expert, there was no ballistics report to link the gun to Mathekela’s murder and to the armed robbery.
Lyndon Mothusi represented the accused persons.