Kgosi Ngakayagae has filed an appeal in the Court of Appeal on behalf of kgosikwena Sebele who was sentenced to five years imprisonment by Lobatse High Court judge Ian Kirby for stealing a billy goat.
Sebele was initially sentenced to four years by a Molepolole magistrate but appealed to the High Court where Kirby increased the sentence to five years.
In the appeal papers he has filed on behalf of Sebele, Ngakayagae submitted that judge Kirby had erred in accepting the evidence of sergeant Modise even though he was clearly a biased witness by his own admission in that he had, amongst other things, failed to record statements from witnesses favourable to the applicant. His explanation for this, Ngakayagae submitted, was that they were untrustworthy. He said that this was a cardinal error reflecting on his motive and the integrity of the investigations. He said this alone was enough for the judge to have ordered a retrial as investigations were conducted in an expressly biased manner.
He further submitted that no one knows what else the officer hid or failed to record that would have been favourable to the applicant. The appellant, he submitted, cannot be said to have had a fair trial.
Sergeant Modise, he further submitted, gave opinion evidence to say that the applicant had lied to say the goat was his when it had died a long time ago.
Modise, he further submitted, had no factual basis for so saying which he submitted only reinforces the case that the investigations were engineered to produce convictions at all costs.
Further to that, he said it cannot be put past this witness and it was submitted that there is an inescapable conclusion that he engineered the recantation of the testimonies of the herd boys which testimonies were favourable to the appellant.
Turning to other state witnesses, Ngakayagae submitted that the judge had erred in upholding the evidence of the first state witness which he said was uncritically accepted and substantiated even though the witness could not remember the names of a police officer who had assisted him or even identify him. His evidence was accepted when he could not remember the price he had paid for the goat.
He also submitted that the judge had erred in accepting the evidence of another state witness as to the identification of a goat the witness had first seen in 2001 and identified many years later when it was a fully grown ram.
He said the judge had erred in accepting the evidence of a witness who had admitted lying.