Principal state prosecutor, Nimbrose Mubikwa, on Thursday urged Lobatse High Court Judge Key Oagile Dingake to dismiss a bail application brought before his Court by Thabo Stimela and Aubrey Nkuna on grounds that they had not provided new grounds that the situation had changed from the time they were denied bail by another High Court judge Michael Leburu.
Mubikwa submitted that the defence case for another bail application was weak in that it was only based on grounds that two witnesses had cropped up, saying that they had seen the person they are alleged to have murdered with head injuries before he met the three accused persons. (The third accuse person in the matter was granted bail).
The state prosecutor also submitted that the change of circumstance which they view as one that could entitle the accused persons to be given bail was one in which they could prove that their citizenship status had changed.
At the moment, he submitted that Stimela and Nkuna were flight risks as they do not have much at stake in the country but in South Africa, which is insisting that it can only allow murder suspects to be extradited to Botswana only when there is a guarantee by the state that they would not be executed if found guilty of murder by Courts.
He also submitted that there was no doubt that the accused persons had committed the crime they are charged with as a pathologist had stated that the deceased’s blood was found on the clothes the accused persons were wearing on the day of the alleged murder.
The accused’s lawyer, advocate Sydney Pilane, on the other hand, submitted that there was in this matter a need to “repeat the application for bail” because judge Leburu, who denied the accused bail in the last application, had, in his reasons for denying the accused persons bail, stated that the charge of murder is a most serious charge that attracts the death penalty.
Also that he had after considering the state evidence and that of the three accused persons concluded that “the Directorate of Public Prosecution case cannot be simply ignored as weak and fanciful; the stronger the state’s case is the greater the likelihood of fleeing from justice to evade capital punishment”.
He said that Leburu made the above submissions despite that the accused persons or petitioners in this matter have placed before his Court evidence that Joseph Khumalo, an independent witness, had told the Court that the deceased had before his encounter with the accused persons come to his house injured and that is where condition police had found him.
Besides that, Pilane submitted that Khumalo had clearly given description of the injuries he had seen on the deceased and when shown some photos he had identified the injuries.
On these grounds, Pilane submitted that the state’s evidence on the paper was therefore no more credible than that of the three accused persons and of Khumalo; he urged the Court to grant his clients bail.
Judgment on this matter has been reserved.
