[Home] [Databases] [WorldLII] [Search] [Feedback] Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1984 >> [1984] BWCA 28

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Majoni v The State (Criminal Appeal No. 12 of 1984 ) [1984] BWCA 28 (6 December 1984)

.PDF of original document

.RTF of original document

The deceased was killed before 11 p.m. on the night of Saturday 9th July 1983. The cause of death, in non-technical terms, was a penetrating wound in the neck, which might have been caused by a knife or, as the judge found, a less sharp instrument such as a screwdriver. There were no eye-witnesses to the killing, and the weapon used was not found.
The State relied on two witnesses to connect w- the appellant with the killing. The first was Annan Moshe, a former lover of the appellant, who had become the lover of the deceased. The second was an acquaintance of the appellant, Ngwako Ramatebele. The appellant himself has at all times denied having had anything to do with the killing of the deceased.
The evidence of Annan Moshe related to the conduct of the appellant before the death of the deceased. According to her, on the previous Thursday night the appellant had W come to her house where she was sleeping with the deceased. He dragged her outside and stabbed her in the stomach with a screwdriver, causing slight injuries. The deceased, she says, did not intervene as he was looking after her child on whom she had fallen during the assault. (The appellant denied this whole incident.)
Then, on the Saturday night at (she says) 9 p.m. the appellant accosted her near a cafe known as Gaolese's cafe, took hold of her and assaulted her. The deceased then came

on the scene and tried to pull her away. The appellant then began to punch the deceased, who retaliated and knocked the appellant down two or three times. The appellant then made some sort of apology, and the deceased and the witness then walked away. The appellant, however, came running after
them and angrily said to the deceased, "Even though you have
to
beaten me I am going / stab you." She then went home(at the behest of the deceased) while the deceased "went back towards the cafe" to look for her child who had been left with another woman. As she left she saw the appellant following the deceased. That, in summary, was her evidence.
The appellant who had made a statement to the police and who gave evidence at his trial, admitted that he had had a fight with the deceased that evening in the presence of Annah Moshe. But his version differs from hers. His evidence was that shortly after 8.45 p.m. he had come across Annah Moshe near Gaolese's cafe and had been in conversation with her about her child. The deceased then came up and apparently resenting the appellant*s presence, assaulted him, knocking him down three times. The appellant "apologised" to the deceased in the sense that he indicated that he did not want to fight over the woman concerned. The other two left him there. He denied having followed them or having made any threat to the deceased. He merely went to Mmajack's shebeen and did not see the deceased again. His statement to the police is not materially different, save that he puts the time about two hours earlier.
3

It should be said at this stage that the state called another witness to this incident, a watchman at Gaolese*s cafe. His evidence did not support Annan*s account, but it was rejected by the learned judge as completely unreliable. I shall return to this witness in due course.
On the other hand the judge accepted Annan Moshe*s evidence as "completely reliable" on every major point. Her evidence, on the record, does not read particularly well, but this may be due to the poor recording of the evidence. The judge acknowledges that she "was not Intellectually impressive and her responses were sometimes slow" but he said that her evidence was ^Hon that very account the more reliable." With respect, this reasoning does not appeal to me. The learned Judge does not seem to have given any real consideration to the probabilities of her account. The deceased was a powerful man - why had he not intervened during the Thursday night assault? If the Thursday night assault had taken place, why was the threat on the Saturday night taken so lightly?
Be that as it may, I do not think that her evidence standing alone would establish the guilt of the appellant, nor did Corduff J so find. Her evidence, if fully accepted, shows that the appellant had some motive for the killing, that he was a violent man, that he possessed a screwdriver which might be used as a weapon, that within at most two hours of the killing he had, in anger, threatened
A

to stab the deceased, and that he was last seen walking in the same direction as the deceased* This chain of evidence certainly makes the appellant the obvious suspect - motive, temperament, opportunity all are present. But although these factors establsih some probability of guilt, they do not in my opinion prove guilt beyond a reasonable doubt.
However, as I have indicated, the state had important
another/witness Ngwako Ramatebele. He lived in Selebi Phikwe and knew both the deceased and the appellant. He met the appellant in the early hours pf the Sunday morning. In his evidence in chief he said:
"Roy (the appellant) informed me that last night he stabbed Sisco (the deceased) with a knife."
When asked why the appellant replied that they had been fighting over Annah. He offered to show the witness the place where the stabbing took place, and, said the witness,
"We passed Gaolese's cafe and he showed me some blood."
There was, he said, a pool of blood leading from a yard to the path, a distance of about 12 paces. Then the two men went to MmaJack's shebeen. At MmaJack's a man called Shimishisa told them that Sisco had been killed the previous night. The appellant called Shimishisa aside and askad whether it was true that Sisco was dead. The witness later (so he said) reported to the police that the appellant had admitted stabbing the deceased. He pointed out to them the place where

he had seen the blood.
The appellant denied having made any such admission. '/^ i/C<z*rictifaz.b*tc
The learned Judge accepted ^Wfeyevidence• What particularly impressed him was that this witness was, on the Sunday morning, in possession of two pieces of information which could only have come from the appellant, namely, that the fight had been over Annan, and that the deceased had been 8tabbed.
If that is what this witness had told the police on the Sunday morning there would have been force in the learned Judge's reasoning. But that is not the police evidence. On the contrary, Detective Sergeant Jack said that what the witness had pointed out to him was the place where the appellant had had a fight with the deceased. (Indeed when the appellant was cross-examined prosecuting counsel put to him only that he had shown the witness the place where he had been hit by the deceased). What is more, the police found no blood at the place pointed out by Ramatebele. That place was in fact some 300 metres from the place where the body of the deceased had been found at about 11 p.m. the previous night. At the latter place, according to Sergeent Jack, there were no nearby shops whereas, it will be recalled, Ramatebele said that the place pointed out by the appellant had been near the cafe. If one adds to this the medical evidence to the effect that after the stabbing the deceased would have been able to walk only about 5 metres, it becomes difficult to

accept this witness's evidence as being wholly reliable. The learned Judge observed that there was a discrepancy between Ramatebele's evidence and that of Sergeant Jack and acknowledged that the answer to it was "by no means simple." In my respectful opinion the learned Judge found no satisfactory answer to it. Nor can I agree with his statement that Ramatebele's evidence corresponds with the police evidence in respect of "the trail of blood." Sergeant Jack said that the witness said that he had seen "a drop of blood but he cannot say where."

undoubtedly took place. This led Corduff J to conclude that his evidence must be entirely disregarded. I do not think that it is proper to dispose of Makgetho's evidence in this way. He may not be entirely reliable; he might not have been present throughout the exchanges between the three persons concerned in the quarrel and fight at the cafe. But it is not right in my view 3imply to ignore the fact that his evidence favours the appellant's version and not Annan's in that it suggests that the appellant and Annan were engaged in amicable conversation up to the time that the deceased joined them.
I have already indicated that I do not think that Annan's evidence was above criticism. The evidence of the watchman raises a further doubt as to its reliability.
In the light of all these considerations I believe that the trial judge should have had a reasonable doubt as to the guilt of the appellant. I would, therefore, uphold the appeal and set aside the conviction and sentence,
S. W. KENTRIDGE JUDGE CF APPEAL
8
GIVEN at the Court of Appeal, Lobatse, this 6th day of December 1984.

I agree:         ...*•   
I. A. MAISELS PRESIDENT
I agree:        
N. R. HANNAH JUDGE OF APPEAL

IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 12 of 1984 High Court Criminal Trial No. 56 of~T984
In the matter between:
ROY BALEBELEKI MAJONI APPELLANT
and
THE STATE
Mr. P. Collins for the Appellant ( PHO DEO) Mr. W. G. Manchwe for the State
JUDGMENT
MAISELS. JP
I have had the benefit of reading the Judgment in draft of Kentridge JA. What is required before a conviction can he secured in a criminal case is proof of guilt of the accused beyond reasonable doubt. There is in my judgment a very strong case based on probabilities that the accused did murder the deceased. But before the charge against the accused can be brought hyperlink is necessary for the evidence of the fourth Prosecution Witness Ngwako Ramatebele to be shown to be trustworthy and thus acceptable. For the reasons given by Kentridge hyperlink would,in my opinion, be unsafe to rely on his evidence. That being so, it follows that the guilt of the accused has not been proved beyond reasonable doubt. The appeal succeeds and the conviction and

sentence are set aside.
I. A. MAISELS JUDGE PRESIDENT