On being found guilty of armed robbery in 2016 and after being sentenced to a minimum mandatory sentence of 10 years, Emmanuel Kgangpetsa should have come out of prison in October 2026. Courtesy of sloppiness by the state, Kgangpetsa’s conviction was overturned last week and he is now a free man.
The case was tried at the Village Magistrates Court in Gaborone which was formally requested to provide the entire record of proceedings when the appeal began at the High Court. Then the case was under Acting Justice Kabelo Lebotse but the case could not continue because the record of proceedings from the court that convicted him was incomplete. It was then that Lebotse made an order instructing the Clerk of Court in charge of the Village Magistrate’s Court to provide “on affidavit”, information relating to the status of the record of proceedings in Kgangpetsa’s case as well as the “specific date” when such record would be made available to the court. The judge set the matter for status hearing on June 2, 2017. The Clerk never filed the affidavit as required by the court.
Lebotse followed up with a similar order that set an August 18, 2017 deadline. Once more, the Clerk failed to comply with the order. After a third order produced the same result, the judge directed the Clerk through the Registrar and Master of the High Court to ensure that the Clerk filed the record of proceedings on or before February 2018 and also set the matter down for status hearing on February 16.
“I came into the picture on the 16th February 2018, and postponed the matter to the 2nd March 2018, exactly a year since the appellant started coming to court with the intention to prosecute his appeal,” says Justice Ranier Busang in his judgement.
A month later, the Clerk sent “an incomplete record of proceedings” and “several” attempts to get the full record failed. It later turned out that long before the incomplete record was received, three court reporters had issued certificates between May and October 2017, attesting that what had been submitted was the true record of proceedings.
“It is not clear why so many court reporters would issue the certificates but still fail to avail the complete record,” the judge wonders.
As baffling to the judge is why the evidence of the most important prosecution witnesses, Onneile Setshedi and Thabiso Mokgotle, was missing from the record. The testimony of both was that during the robbery, Kgangpetsa and his accomplice threatened them with a pistol.
The incomplete record was itself shot through with sloppiness. Prosecution witnesses are referred to with the abbreviation “PW” which is followed by a number – PW1, PW2, PW3 etc. In the record submitted to court, Detective Constable Tlhamelo Matshebe is referred to only as “PW” and nothing else.
“The record does not show the number of witnesses that were called and, the fact that some pages are not numbered exacerbates the confusion and mix up even more. Other pages are then numbered from Page 1 on the 23rd June 2016 to Page 29 on the 10th November 2016. The numbered pages only deal with the defence case; judgement and sentence. I have no doubt in my mind that a complete record does not exist. Mr. Mothusi has strongly submitted that the only outcome in this case should be an acquittal,” the judge says, referring to Lyndon Mothusi, Kgangpetsa’s lawyer.
It turns out that the Court of Appeal has already handed down judgement on a similar matter. The latter court has ruled that failing to provide a record of proceedings to an appellant for purposes of prosecuting his claim appeal infringes on section 10(3) of the constitution which entitles the appellant to a full record of proceedings. Busang said that “if the appellant cannot have his appeal heard through no fault of his own, his conviction should not be allowed to stand.” The other reason he felt that the conviction couldn’t stand was that earlier, Justice Lebotse had directed the Registrar and Village Magistrate’s Court Clerk to provide a full record of proceedings by specified dates.
“I have never in my life as a judge issued such an order because I have my own views about the practicality, efficacy and utility of such orders, in view of obvious manpower constraints. However, that is irrelevant for present purposes. Strictly speaking, court orders once issued, should obeyed and refusal to obey an order of court merely because it has been wrongly made, would be fatal and detrimental to the authority of the court,” said the judge, adding that if court orders were to be “disregarded and disrespected willy-nilly and with impunity”, there would be “serious chaos and disorder” that will strike at the very root of the rule of law.
“The respondent was obliged to comply with the court orders compelling provision of the court record after they were issued. Failure to comply is contemptuous of the authority of the court. If it was impossible for the court orders to be complied with, the respondent had the right to approach court for the rescission of its order. Without a rescission order, it had no choice but to comply.”
On the basis of how the state had conducted itself, Busang discharged and acquitted Kgangpetsa.
