The State on Monday┬áadmitted that the prosecution and the Magistrate who presided over a case in which a man was convicted of robbing Fidelity Cash Management Services of P5.5 million at Sir Seretse Khama Airport made “unpardonable mistakes”.
┬áThis emerged in an appeal application in which Skhumbuzo Mlotsha is challenging the findings of the Magistrate who had convicted him and the evidence of the prosecution witnesses.┬á
┬áMlotsha was sentenced to 11 years imprisonment by Magistrate Faith Dlamini Ngandu five years ago.
State attorney, Lesedi Seloka, told Lobatse High Court Judge Michael Leburu that they did not oppose the appeal on the basis of “unpardonable errors”, which he said were committed by both prosecution and trial Magistrate.
“With such commission of unpardonable errors, I shall therefore abide by the arguments of the counsel for the appellant,” said Seloka.┬á
The court heard that a state witness gave a certain inspector Kubas Fereias exhibits in the form of money and, according to the witness, the purpose was for him (Fereias) to count the said money. The money amounted to $2┬á550.
┬áAccording to the witness in question, the earlier exhibit package’s serial number was noted. This was done in the absence of Mlotsha as he had earlier on escaped from the police. Amazingly, the court was told, when the said money was tendered in Court, the new exhibit package now had $ 2┬á450.
“It will therefore follow that the new package and contents thereof were not acknowledged and signed by appellant. Similarly there is nothing on the record that the old exhibit package was shown to the court to make its own informed conclusion on the matter. My respectful view is that there are at least two disturbing features about the exhibit in question,” said Seloka.
┬áFirstly, the State lawyer said, whilst the exhibit was sealed and signed for Mlotsha, upon his initial arrest, the police proceeded to open it in his absence and before tendering it in Court during trial.
“It’s apparent that it was at this juncture that the police recorded the serial number of the money in question,” said Seloka.
The second thing, Seloka said, is that upon opening the new exhibit package, this time around in court, the money had a shortfall of $100.
He also agreed with Mlotsha’s lawyers that an individual from Travelex London Bank, who had dispatched money from London which was later robbed prior to its circulation to the public, was never called as a witness to come and testify.
“The fax was admitted as evidence and connected the appellant to the offences among other inferences as found by the Magistrate, but all that was attributed to him as source of information was inadmissible hearsay,” Seloka agreed with Mlotsha’s lawyers.
The result is that Seloka said he found himself hamstrung in defending the conduct of one of the state witnesses and inspector Kubas Fereias in the handling of the exhibits comprising money recovered from Mlotsha.
Earlier on, Mlotsha’s lawyer, Wellington Mhebere of Obonye Jonas Attorneys had argued that the fax from Travelex Bank London should not have been admitted in court as evidence because the authentication of such a document as required by law was not complied with.┬á He had also argued that it was unacceptable for Fereias to have opened the exhibit in the absence of Mlotsha. He prayed that the sentence and conviction by the Magistrate Court be set aside. The Court heard that the money in question was with the Serious Crime Squad. Seloka also conceded that if indeed Mlotsha had not distanced himself from the money during trial it should be returned to him.
┬áJustice Leburu is expected to deliver judgement on 10th April.
The facts of the case are that Mlotsha, Teboho Mafisa, Jeremiah Modise and two others who were not before court, on December 18, 2006 at SSKA acting together and in concert robbed employees of Fidelity Cash Management Services 800 000 US Dollars and 80 000 Euros which amounted to P5.5 million.
They used personal violence by assaulting and threatening employees of the said company by pointing guns at them before stealing the money.