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Kelaletswe and Others v The State (Criminal Appeal No. 25 of 1994 ) [1995] BWCA 6; [1995] B.L.R. 100 (CA) (30 January 1995)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 25 of 1994
High Court Cr. Trial No. 49 of 1992
In the matter of:
DAVID KELALETSWE DAVID BOGATSU TEKOETSILE TSIANE
vs
THE STATE
1st Appellant 2nd Appellant 3rd Appellant
Respondent
Mr. T. Joina for the 1st and 2nd
Appellants Mr. H. Naledi for the 3rd Appellant Mr. U. Mack for the State
JUDGMENT
Coram: Amissah, J.P.: Wylie, J.A.: Steyn, J.A.:
STEYN. J.A.:
The three appellants appeared in the High Court charged with
the following five offences:
COUNT 1
STATEMENT OF OFFENCE
Murder, contrary to Section 2 02 of the Penal Code (Cap 08:01).
PARTICULARS OF OFFENCE
The accused persons, DAVID KELALETSWE, DAVID BOGATSU and TEKOETSILE TSIANE on or about 14th November, 1991 at Motokwe in the Kweneng Administrative District, in the Republic of Botswana, acting together and in concert murdered PHILLIPUS WILHEM BRUWER.
COUNT 2
STATEMENT OF OFFENCE
Robbery, contrary to Section 291 and punishable under 292(2) of the Penal Code (Cap 08:01).
PARTICULARS OF OFFENCE
2
The accused persons, DAVID KELALETSWE, DAVID BOGATSU and TEKOETSILE TSIANE, on or about 14th November, 1991 at Motokwe in the Kweneng Administrative District in the Republic of Botswana, acting together and in concert robbed Mr. and Mrs.
Bruwer the sum of PlOO 000.00 and at or immediately before or immediately after such robbery used or threatened to use actual violence on the said Mr. and Mrs. Bruwer in order to obtain or retain the said
money.
COUNT 3
STATEMENT OF OFFENCE
Unlawful use of a vehicle, contrary to Section 290 of the Penal Code (Cap 08:01) .
PARTICULARS OF OFFENCE
The accused persons, DAVID KELALETSWE, DAVID BOGATSU and TEKOETSILE TSIANE, on or about 14th November, 1991 at Gaborone, in the Gaborone
Administrative District, in the Republic of Botswana, acting together and in concert, unlawfully and without colour of right, converted
into their own use a Ford Courier motor vehicle registration number BD 5647D, the said vehicle being the property of AGFAB Services (Pty) Ltd.
COUNT 4
STATEMENT OF OFFENCE
Possession of an arm without a licence, contrary to Section 9(1) and punishable under Section 9(4) of the Arms and Ammunition Act (Cap 24:01) .
PARTICULARS OF OFFENCE
The accused persons, DAVID KELALETSWE, DAVID BOGATSU and TEKOETSILE TSIANE, on or about 14th November, 1991 at Motokwe, in the Kweneng Administrative District of the Republic of Botswana, being persons not exempted under Section 10 of the Arms and Ammunition Act (Cap 24:01) unlawfully had in their possession an FN 7.65 mm pistol, Serial No. 03713.
COUNT 5
STATEMENT OF OFFENCE
Unlawful possession of ammunition contrary to Section 9(1) punishable under Section 9(4) of the Arms and Ammunition Act (Cap 24:01).
PARTICULARS OF OFFENCE
The accused persons DAVID KELALETSWE, DAVID BOGATSU and TEKOETSILE TSIANE, on or about 14th November,
?
V
1991, at Motokwe, in the Kweneng Administrative District, in the Republic of Botswana, being persons not exempted under Section 10 of the Arms and Ammunition Act (Cap 24:01) unlawfully had in their possession eight (8) life rounds of ammunition of 7.65 calibre.
The sentences imposed were the following:
On Count
1 - Death sentence
On Count
2-10 years' imprisonment
On Count
3 - No sentence
On Count
4 - A fine of P100.00
On Count
5 - A fine of P100.00
They have all three appealed both against their convictions
and sentences.
The grounds of appeal noted on their behalf read as follows:
AD CONVICTION
"1. The Learned Judge in the Court a quo, His
Lordship Moleleki Mokama misdirected himself in so far as he failed to establish a doubt in the contradictory evidence of PWll in so far as the witness failed to identify one
person at the identification parade. The Honourable Court should have found that the identification by PWll was inaccurate and therefore not worth relying on.
2.
The Learned Chief Justice erred in law and fact in so far as he relied on the evidence of PW18, Alfred Semong was an accomplice witness whose averments were neither convincing and/or corroborated.
3.
The conviction is contrary to law and against the weight of evidence lead in the case.
4.
The Learned Chief Justice erred in law in admitting and acting upon inadmissible evidence particularly testimony of PW21.
5.
The Learned Chief Justice erred in convicting the Appellants on evidence which failed to establish beyond a reasonable doubt offences contrary to Sections 202, 249(a) and 291 as
read with 292(2) of the Penal Code (Cap 08:01) and Section 91 as read with 94 of the Arms and Ammunition Act (Cap 24:01).
2.
6.
The Learned Chief Justice misdirected himself on the burden of proof placed on the defence
4
both in analysing the defence evidence as well as assessing its impact on the prosecution case.
7.
The Learned Chief Justice erred in failing to hold that the Third Accused/Appellant had no case to answer at the close of the prosecution
case and/or that at the close of the defence case there was doubt on the evidence which implicated him and therefore the proper verdict would have been a discharge and acquittal on both indictments.
8.
The Learned Chief Justice erred both in law and fact and the conviction cannot be supported.
AD SENTENCE
1. The sentence imposed by the Learned Chief Justice particularly in counts 1 and 2 induces a sense of shock and is unreasonable in the circumstances of this case.
2 . In relation to count* 2 the Learned Chief Justice erred in so far as he failed to find extenuating circumstances in favour of both appellants.
3.
The Learned Chief Justice erred in so far as he failed to find that an appropriate sentence in the circumstances would have been a custodial sentence rather than a death sentence.
4.
The Learned Chief Justice erred in so far as he failed to consider the individuality of sentence.
BE PLEASED TO TAKE NOTICE THAT upon the availability of typed records of proceedings further grounds of appeal will be filed and argued before the Honourable Court."
Mr. Joina, who was the instructing attorney in the Court a
quo, filed these grounds on behalf of the Appellants. However,
when the hearing of the appeal was due to start, Mr. Naledi
appeared on behalf of the 3rd Appellant and Mr. Joina confined
himself to presenting argument on behalf of Appellants Nos. 1 and
2. No new grounds of appeal were filed on behalf of the 3rd
Appellant.
The arguments on appeal were despite references to the law
and to the admissibility of evidence in the grounds of appeal
5
cited above, confined to matters of fact. To assess the validity
of these arguments I summarize the evidence.
The background to and the events of the night in question
are well summarized by the Court a quo as follows:
"The deceased Phillipus Wilhem Bruwer owns and runs a shop at Motokwe Village which lies west of Lobatse over 3 00 km away in the centre of the southern Kgalagadi. Motokwe Village, from the various photographs and the evidence given by the witnesses, is a
typically small village in the Kgalagadi.
On the 14th November, 1991, Phillipus Bruwer and his wife were in his shop with his two shop Assistants. That afternoon one of the Assistants, Boitumelo Matoko, (PW6), saw a vehicle coming from the direction of Khekhwe borehole coming towards the shop. As it approached she remarked to Mr. and Mrs. Bruwer that Stephen, the son of the deceased, was coming because she thought the vehicle approaching was that belonging to
the said Stephen Bruwer. The vehicle came close to about 100 metres and she was able to see and observe that there were three people
in that vehicle as it turned away to the west. The late Mr. Bruwer remarked to the said Boitumelo Matoko that she did not know Stephen's
vehicle as that certainly was not Stephen's vehicle. At closing time, the Assistants in the shop went their ways and left Mr. and Mrs. Bruwer behind. Mr. and Mrs. Bruwer went to bed. They slept in twin beds. At mid-night Mrs. Bruwer was woken up by persons demanding the keys to the shop and safe.
The intruders took torches from a briefcase. She was tied with a green belt and her mouth was gagged or stuffed with some tissue
papers to disable her from shouting. She noticed there were two other people standing next to her husband's bed, in other words there were three intruders. It was dark and she could not identify anyone. At one point she heard her husband saying,
"what do you want?" Immediately thereafter, she heard the sound of a gun shot. This happened after she had given the man
who tied her hands the keys to the shop and he was by then gone. Later the man who took the shop keys came back and three intruders
left ordering her to remain in the hut until 5 a.m. Before they left, she heard one of them ordering them to be careful with their use of the torches and avoid lighting him as she might recognise him. The following morning Mrs. Bruwer went through the window and reported to some passers by."
6 It is common cause that the shot which Mrs. Bruwer heard in the circumstances described above, killed the deceased, and that he died of haemorrhage and shock as a result of a gunshot in the
abdomen. The pathologist who performed the operation recovered a bullet under the skin and handed it to the police officers conducting the investigation.
It was also not a matter of dispute that the motive for the attack on the home of Mr. and Mrs. Bruwer and on their persons was robbery. Some P100 000.00 was in fact stolen from the Bruwer's on the night in question. It is the State case that the three intruders referred to above were the three Appellants. It is this issue which had to be decided by the Court below. Indeed the only issue before us was whether the State had proved beyond
a reasonable doubt that they were indeed the persons who robbed the Bruwers and killed the deceased.
David Mahusi and Tlale Manthe's evidence when taken together and if correctly accepted by the Court a quo, clearly links the 1st Appellant to the relevant events. Mahusi is a driver for L.C.S transport, a company whose business it is to deliver cement to constructions companies and their sites. On the 4th of November, 1991, he was travelling from Lobatse to Molepolole to deliver cement. He stopped at a village, Mogoditshane, to buy some tobacco. There he met a person, whom he later identified as 1st Appellant who enquired from him whether he could sell him some cement. The witness explained that he was delivering orders
not selling cement. He was then asked whether it was not possible for him to give his enquirer a lift to Gaborone. Mahusi was not going in that direction, but fortuitously the Mr. Manthe,
7 referred to above, arrived on the scene, driving a blue van. During a conversation with Manthe, Mahusi secured a lift for the supplicant as he (Manthe) was in fact going in that direction.
Manthe and this person - allegedly 1st Appellant - and I will refer to him as such, then travelled together from Mogoditshane to Gaborone - a journey which according to the witness takes some 5 minutes only. 1st Appellant then struck up a conversation with him, asked him for some money, asked him if the vehicle was his and according to the witness the following conversation then ensued:
"Q: What happened?
A: He then told me that? I am playing when I am saying there is no money whereas there is a lot of money in Motokwe.
Q:
You said there was a lot of money in Motokwe?
A:
Yes.
Q:
Did he say anything further than that?
A:
Yes.
Q:
What did he say?
A: He asked me if I had a gun and I said no; I asked him why he needed a gun.
Q: What did he say?
A: He said he is going to take money from
Motokwe where there is a white person who had a lot of money.
Q: So was this a response to anything as to what he was to do with the gun?
A-. Yes.
Q: Did he further say anything about the said white man in Motokwe?
A: He said he was hired to extend his shop in Motokwe, that is when we arrived at my destination and then he dropped.
8
Q: Before you parted with this man what was your response to all these enquiries?
A: I just told him that I know nothing about all that he was saying."
The witness was extensively cross-examined. Apart from the fact that the defence established that in the summary of his evidence he was recorded as having said that the incident occurred during the second and not the first week of November, no perceivable inroads were made on the veracity and reliability of his evidence. It is not necessary to detail the circumstances
which led to the witness being discovered by the police. The evidence does however establish that the chain of events was of such a nature as to raise no doubt ae to the acceptability of his testimony as to how the authorities came to know of this extraordinary incident, of the meeting at MogoditShane, the fortuitous appearance of the witness Manthe, the lift given to the loose-tongued passenger and the conversation that occurred.
Manthe was unable to identify his passenger. However,
Mahusi did so at an identification parade held on the 7th of
December, 1991 - some three weeks after the events in question.
Mahusi said in his evidence that it was the first time that he
had seen 1st Appellant when he met him in the circumstances
described above. At the parade in question however, the officer
conducting the parade recorded that 1st Appellant said -
"That witness knows me. He is a driver for L.C.S."
This was never put to the witness as a reason why his
identification should be questioned. If accepted, the evidence
of these two witnesses has obvious and serious implications for
1st Appellant. Not only has he been identified as someone who
9 had knowledge of "a white person who had a lot of money" at Motokwe, but he identifies himself as someone who "was hired to extend his (the white person with money's) shop in Motokwe." It was common cause at the trial that 1st Appellant had in fact previously worked on a project extending the storeroom of the shop belonging to the deceased. He was positively identified by Mrs. Bruwer as someone who had undertaken this work.
This evidence was confirmed by Mariam Kgosietsile, PW5, an assistant in the shop owned by the deceased in Motokwe. She knows 1st Appellant who had worked for the deceased building his storeroom next to the shop. This was during 1990. While working on the project he stayed at Motokwe*for about 5 to 6 months. It is also clear from Mrs. Bruwer's evidence that during the robbery, one of her assailants said to his accomplice that he was not to cast the light of the torch in his direction, because Mrs. Bruwer might recognize him.
It would be appropriate at this stage to deal with the acceptability of these aspects of the evidence. There was only one challenge supported by the evidence on record that Mr. Joina could level at it, namely that the witness Manthe had not been consistent in regard to the date and that he had given two versions as to when the incident had occurred.
Seen in the total context of his evidence, this discrepancy can hardly be elevated to a circumstance which could impugn the rest of his testimony on which he remained completely unshaken. Mr. Joina was driven to argue that the evidence was fabricated and that the police had conspired with the witnesses concerned to implicate 1st Appellant. Not only is this far-fetched in the
10
light of the intricate nature of the evidence, but such a proposition was never canvassed with any of the witnesses. We will certainly not entertain such a speculative and fundamentally significant contention on appeal, unless it was explicitly put to the relevant witnesses and thoroughly aired at the trial.
This testimony certainly laid a solid foundation for the State's case against 1st Appellant. As I analyse the other evidence it will become apparent that the State produced further damning testimony concerning his involvement which was in the main met by bare denials.
The next evidence implicating 1st Appellant to which I wish
to refer is that of Segofatsang Tshflo, PW16. The learned Chief
Justice.summarises her evidence as follows:
"Segofatsang Tshilo, aged 23 years, lives at Motokwe. She knows David Kelaletswe and that David Kelaletswe, accused No.l, had lived at Motokwe for a long time and had been her
boyfriend. He is still her boyfriend. They have been living together at Motokwe since 1985. At the time of his arrest they had been living together at Gaborone in Old Naledi. He went to Gaborone in March, 1991 and she followed him on the 6th of November, 1991. They have
two children, a boy and a girl. On the 13th November, 1991 he left to go for work in the morning and he only came back home at 9 a.m. on the 15th November, 1991. She did not know where he had gone. In the afternoon of the 15th November, 1991 he had said to her that he had gone to Johannesburg. He had arrived with someone he said was called Albert. They came in a taxi and Albert was driving the taxi. He came back at 6 p.m. She had asked him where he had been and he reported that he had been to Johannesburg. The following morning
on the 16th November, 1991 he gave her P500.00 to go and buy clothes for herself and the children. Whilst shopping, she heard of the death of Bruwer from a Motokwe resident. After buying clothes she informed the accused of the death of Bruwer and the accused enquired whether the people who had killed him had been arrested. After being told
of the death of Bruwer, Albert arrived and they again went away in a combi. Accused No.l came back on the 17th
11
November. The following day, the 18th of November, he gave her P550.00: P500.00 to be deposited in her name in the bank and P50.00 to be changed into coins. She was opening an account for the first time. The P50.00 coins were for change
to pay his workers. The accused had a company called Baiteki Construction and Building Company. On the 19th November, he gave her
P5 950.00 plus P50.00 of coins amounting to P6 000.00. She was to pay up his labourers at Molepolole. She travelled to Molepolole
to pay them. She came back with P500.00 change.
She had asked him where he got the money from only to be told that he was working. She had asked him this question because this was
the first time he gave her so much money. She stated she did not know where he was keeping all this money because normally he entrusted all the monies to her. There was some money in the house at that time, not a lot but about P300.00. The following day,
the 20th November, she and accused went to Ngwapa in the Central District to a traditional doctor. * The traditional doctor is a woman and accused paid her P500.00. They returned to Gaborone on the 21st November. He wished to go and buy goods for the stock of their shop at Motokwe but she was too tired. The
accused left alone. He bought the goods for the hawkers licence at Motokwe. There were many goods bought, especially tooth-paste and small items. She collected these goods and he gave her P800.00 and she went to Motokwe on the 20th November, 1991 in the morning. He had informed her the P800.00 she could use for whatever she wanted. On the 20th November, 1991, the Police vehicle came to her home and searched and took all the new items she had bought from Gaborone and all the clothes that she had bought for herself and for the children. The goods purchased before the 15th of November were exhibited as Exhibit 13 and those purchased after the 15th of November were exhibited as Exhibit 14.
On cross-examination she stated that the accused's practice was always to tell her where he was going. She stated the accused gives her money but not much."
The goods bought "for the hawkers licence" referred to above
constituted the purchase of stock for a hawkers business run by
the witness and 1st Appellant. Whilst no value could be
attributed by the witness to these goods it is clear from the
evidence that it was "a number of items" and "quite a
collection." Save that it was put to the witness that 1st
12 Appellant would deny that he told her that he had been to Johannesburg during the period in question i.e. 13-15th of November, there was no challenge directed at her testimony. Some attempt was made to get her to confirm that she had been with Appellant on the 4th of November. (The day 1st Appellant is alleged to have met Mahusi and Manthe). This she denied saying that it was not true that he had been with her on that day. He only "found her" at Molepolole at 8 p.m. that evening.
There is other evidence which connects 1st Appellant -jointly with his co-appellants - with the events. Detective Senior Superintendent Kekgonegile is the responsible Divisional C.I.D. investigating officer. He went to the scene of the crime on the day after the murder, i.e. on the 15th of November, 1991. He searched the house. On the floor near the window he picked up a single used cartridge which he said looked to him to be of a kind used in a pistol or rifle of 7.65 calibre. He found a green belt which had been used to tie up Mrs. Bruwer during the robbery and which was not her property. He handed the cartridge and
certain other exhibits including the belt to Mr. Ndome, the Inspector in overall charge of the case.
The witness now picks up the case again after the arrest of the three Appellants. He testified that on the 11th December, 1991, he was taken to Makgakgarapa and to an area called Khango Cattle Post, where there are certain De Beers wells. This is near Jwaneng. The purpose of the journey was to look for a certain coat which might be linked to the belt found at the scene and allegedly worn by one of the Appellants. The three Appellants went with him to point out the place where this coat
13 could be found. He conducted a search at the area pointed out by the three Appellants. He discovered the coat "lying stretched out on the ground. It was under the maretlwa and maselesele shrubs." The coat matched the belt which was used to tie up Mrs. Bruwer.
When it came to put the defence case concerning this evidence at the hearing, Counsel for the three Appellants said in cross-examination that the three Appellants would deny that they ever went with him to Makgakgarapa or any cattle post called Khango. While extensive cross-examination took place concerning the voluntariness of the pointing out, no argument was addressed to us on this issue, the Appellants confining their case on appeal to a denial that they ever accompanied the witness or pointed out any place whatsoever. Indeed, their case was that "when
they were arrested that green coat was already with the police, in fact it was in the police van." A further conflict was elicited in cross-examination, namely that Appellants would deny that anyone of them owned the coat. To this the witness replied that "They told me it is their coat."
Inspector Ndome testified. He confirmed having received the relevant exhibits from the witness Kekgonegile including the used 7.65 mm cartridge which the latter had found at the scene. 1st Appellant was arrested on the 2 8th November. The other two Appellants were arrested in circumstances described herein below.
The next day two discoveries were made. The investigating team were taken by 1st Appellant to a point some 100 metres from 3rd Appellant's house. There, hidden in a bush they found an envelope which had some papers that had the deceased's name on
14 it. Mrs. Bruwer identified those papers as some of the items stolen from their safe on the night in question. The witness confirmed the evidence of PW21 that the three Appellants took these two police officers to Makgakgarapa to search for an overcoat. According to him it was 1st Appellant who "picked up the green overcoat" matching the belt found at the scene of the crime. He also testified searching 1st Appellant's house and seizing cash amounting to P3 628.50, a savings bank book with a balance of P500.00 as well as a list of numerous items - being the goods bought for the hawkers shop after the 15th of November (Exh. 14) .
This in broad outline was'the evidence implicating 1st Appellant with the crime. His response was what can best be described as a bare denial. Thus e.g. he denied ever having met Mahusi, ever receiving a lift from Manthe or ever accompanying the police to find the coat or the envelope with the incriminating evidence linking it with the robbery on the 14th of November.
As to the money, he denies his wife' s evidence that he gave her the money after the 15th of November. The P500.00 for the clothes and a further P500.00 for the workers were all given to her before the 13th of November. Also, her unchallenged evidence that he gave her P6 000.00 on 19th of November was now disputed in evidence, the Appellant alleging that he also gave her these funds before the 13th of November. He also disputed other aspects of her evidence including that he had told her he was going to Johannesburg as an explanation for his absence.
As for the money - he explained that he had been paid
15 P8 662.00 by Ngami Construction Company in May, 1991 for services rendered. In cross-examination he for the first time mentions a second company, Tswana Construction Company who allegedly paid him P6 600.00 in August. He had retained all of the P8 662.00 he received in May until he gave his wife (the witness PW16) the sum of P6 600.00 to pay his employees whom he had not paid during the intervening months.
It is unnecessary to analyse the other unsubstantiated and unconvincing evidence of the 1st Appellant. His testimony was manifestly false and rightly rejected by the Court.
It is clear from all the evidence that three people were involved in the robbery and the murtier. On the evidence it was abundantly clear that 1st Appellant was one of the three.
It is now necessary to examine the other evidence which together with the evidence alluded to above and which implicates 2nd and 3rd Appellants - to determine whether they were indeed the two other persons who participated in the robbery and the murder.
Perhaps the best place to start is with a Ford vehicle stolen from AGFAB Services during the night of the 13th of November, 1991. On this day it was found that a white Ford Courier "bakkie" with registration number BD 5647D was missing from the premises of the company. The vehicle when found had no number plates. The number on the plates was BD 5647D. It was clear that the vehicle had been driven some 1 200 - 1 500 kilometres. The vehicle also showed signs of having been driven for a considerable distance over sandy roads. Its air filter and engine were filled with sand. An assistant Manager Malema in the
16
employ of AGFAB Services had been charged with ensuring the
safety of the vehicle.
The significance of this evidence becomes apparent when the
testimony of Akanyang Kabalegong (PW12) and Babonetse Thuso
(PW13) is analysed. The learned Chief Justice summarises their
evidence as follows in his judgment:
"Akanyang Kabalegong, (PW12), is a young man of 19 years old. He stated that in November, 1991 he was at Motokwe. On the 14th November, he was riding a horse going to Khwekhwe. On his way to Khwekhwe he saw three people in a parked vehicle. They called him and he observed that they were in a white van, a Ford, with numbers BD and there was a "5" in one of its number plates. There were three
men, two of them were talking to him. One of them told him they had a break down and" were waiting for someone to repair it. They further told him they came from Jwaneng and that they were Police Officers. One of them took some black oil from a tree and applied it to his horse to get flies and ticks away from it. The man who treated his horse he had identified at a Police
parade and that was accused No.3. He was cross-examined and reiterated his story relating to his being informed by the three persons
that they were Police Officers from Jwaneng and he distinctively remembers accused No.3 who treated his horse. He indicated he had not really travelled much but that he had been to Maun and that his home is Hukuntsi.
Babonetse Thuso, (PW13), aged 21, stated that he stays at Khwekhwe employed by the Veterinary Department. He stated that on the 14th November, 1991 a certain man came to ask for water. That man came driving a van. There were three people. One remained in the bush and the other
was shooting at birds. It was a white van and a Ford. The vehicle was about 2 0 metres away. He said he saw "Ford" as they drove away. He saw BD and another D at the end on its registration number. He said he gave that man water, salt and matches as he had requested. The other man was shooting birds about 50 metres away. He stated that he saw the gun at a distance - a pellet gun. He stated that the gun looked like Exhibit 12. He stated he was with that man for about 10 minutes and that he was able to identify that man at an identification
parade as Accused No.2. He informed the Court that Khwekhwe is about 9 km from Motokwe. He saw them at about
17
9 a.m.
Their vehicle was coming from the direction of Motokwe. He saw what looked like the same vehicle at about 3 p.m. that same afternoon. He was cross-examined and stated he did not notice any occupants and further that it was not common to see people using a pellet gun. He had seen a pellet gun at Mahalapye. He was asked about today's
date and he stated it was the 16th of August and that the 14th of November was a Thursday. At the parade Akanyang Kabalegong was there. He, the witness, was called first. He found the people lined up already and he reiterated that he is certain
that accused No.2 was the person who came to him to ask for water, salt and matches."
It seems clear from this evidence that the Ford vehicle
which was stolen from AGFAB Services was in all probability the
vehicle.seen together with its occupants at Motokwe on the 14th
of November. Such a vehicle - a white van - had also been seen
near Motokwe by PW8, stationary and facing Motokwe "near
Baakile's place" and parked there together with its occupants for
some two hours. (Baakile's place is also referred to by Thuso
as being near where they saw the vehicle in question) . The
matter in dispute was, who were the occupants of the vehicle?
2nd and 3rd Appellants both denied that they were two of the
people in the Ford "bakkie", or that they were the persons who
had the.interaction with the witnesses PW12 and PW13 attributed
to them.
There were two main criticisms levelled at their evidence
(that of PW12 and 13) by the Appellants' Counsel. The first was
that 3rd Appellant had at the identification parade raised
objection to the witness PW12 being asked to identify him
because, as the responsible police officer, PW21 recorded on the
relevant form at the time of holding the parade "the witness saw
him at Motokwe whilst under arrest by the police." According to
18 the witness similar complaints were made by 1st and 2nd Appellants at the time the parade was held and at the time the witnesses PW12 and 13 were asked to identify anyone.
This averment, if true, would clearly be relevant in assessing the reliability of the identification of these two witnesses made of the Appellants concerned. Had they seen the three Appellants at Motokwe in police custody, handcuffed and under arrest, the significance of their subsequent identification at a parade would have been seriously devalued.
Counsel for the State, in my view quite correctly, pointed to the fact that no challenge of this kind was ever directed at the witnesses when they testified.' Not only is this averment fully supported by a reading of the record, but one is struck by the fact that extensive cross-examination was directed at PW12 by Counsel for the Appellants, concerning the reliability of his dock identification of 3rd Appellant at the trial. This attack was premised on the proposition that he would have seen Appellants in police custody being brought to Court during the proceedings. Had Counsel been instructed that the witness had seen Appellants at Motokwe before the identification parade it is inconceivable that he would not have based his challenge on this premise. Moreover, Counsel did ask the witness whether he had seen Appellant No. 3 before the identification parade or thereafter, and when this was denied this line of questioning was not pursued. Once again, had Counsel who is certainly not inexperienced - had instructions concerning prior sight at Motokwe, it is difficult to understand why he would not have put such a version to the witnesses who positively identified 2nd and
19 3rd Appellants.
I should add that 2nd and 3rd Appellants went further when they gave evidence. They alleged that the witnesses had seen them in police custody before the parade was held at "C.I.D. South" where they were under a tree awaiting the holding of the parade. This version was also not put to the witnesses PW12 and
13, neither was it ever suggested to the officer holding the parade, Detective Superintendent Sechele.
Two points were raised in rebuttal of these contentions. The first was that in cross-examination of PW21 (Sechele) , Counsel did put to him the version that Appellants would say that the witnesses PW12 and 13 had seen them in police custody at Motokwe before the parade was held. This was however an exercise in futility. This witness (Sechele) took no part in the investigation and was never at Motokwe. The second and more valid contention was that the failure to put this version should not be accorded its usual force, because Appellants had raised the matter well before the trial and at the time the identification parade was held.
The difficulty with this submission is twofold. The first is that, as pointed out above, both Appellants 2 and 3 impugned the parade in their evidence on the ground that they had also been seen at the venue where the parade was being held. This possibility had been excluded by the evidence in chief and was never challenged in cross-examination. This must cast doubt on their credibility in relation to their challenge directed at the alleged incident at Motokwe. Secondly, Counsel had every right to apply to recall the two witnesses concerned and the
20 investigating officers if he had any faith in Appellant's version, and had not put it by virtue of an oversight.
The truth of the matter is that the Appellants had consistently denied that they had been taken anywhere by the police or had ever co-operated with them. This was a way in which they could most readily avoid the inferences that could be drawn from their pointing out incriminating matter and points which could be held to link them with the crime. Counsel's instructions in these circumstances could well have varied from time to time. I am certainly not prepared to find in the circumstances outlined above that, Counsel's failure to put the version that Appellants had been se*en by the witnesses PW12 and 13 was an omission.
A more cogent contention advanced on Appellant's behalf was the fact that at the parade, PW12 in addition to pointing out 3rd Appellant, had also pointed out someone who had nothing to do with the crime. This is clearly a factor which must to some extent affect the weight to be attached to his identification of the 3rd Appellant. I do not believe that because the learned Chief Justice does not specifically deal with this fact in his reasoning, in any way vitiates the cogency of his approach to the matter, particularly as he does specifically advert to this evidence in his judgment. The fact of the matter is, that there is other damning evidence that links this Appellant with the crime and which confirms the reliability of PW12's identification of 3rd Appellant as well as PW13's identification of 2nd Appellant.
I now proceed to deal with this testimony. The first piece
21 of evidence which links 2nd Appellant to the commission of the offence concerns the white Ford "bakkie" BD 5647D referred to above. Detective Ndome - the final prosecution witness - says
that it was the 2nd Appellant who led him to AGFAB and to the employee Malema, to whom I referred hereinabove, where the Ford vehicle was found "driven by Malema." The police also seized P500.00 found in Malema's possession. 3rd Appellant in turn led him to Mogoditshane where they found another set of number plates BD 2332C. The evidence of the pointing out was once again denied by the two Appellants concerned.
The next aspect of the evidence through which the State sought to link Appellants 2 and 3* with the commission of the crime, concerned the 7.65 mm pistol and the testimony that established its relationship with the spent cartridge found at the scene of the crime. This cartridge (Exh. 7) together with the bullet recovered from the body of the deceased, the pistol (Exh. 6) and some 13 live rounds of ammunition were taken by the witness Ndome for examination by a ballistics expert in Zimbabwe, one Donald Haley. He is a Superintendent in charge of the ballistic department of the Zimbabwean Police. He found that the spent cartridge - Exh. 7 - had been fired from the 7.65 pistol -Exh. 6. Although there were characteristics present in the test bullets fired from the weapon and the bullet found in the body of the deceased that corresponded, he did not find sufficient of these to be able to be certain that it was fired from the pistol, Exh. 6. However, the number of grooves, their width and the direction of the twist corresponded. The bullet had sustained some damage upon being fired into the body of the deceased and
22
this fact contributed to his inability to make a conclusive finding.
The significance of this evidence in relation to the guilt of the Appellants becomes evident when we come to examine the evidence of the witness Alfred Semong. It was the State case that he was the person who provided the pistol - used in the murder of the deceased. The State alleged that the investigating team were taken to this witness by the 2nd Appellant. It was in Semong's vehicle that they recovered the pistol, as well as the magazines used to fire the test bullets by the witness Mr. Haley. As with all the alleged co-operative acts of the Appellants, this evidence was denied by the 2nd Appellant. The learned Chief Justice has summarised the witness' (Semong's) evidence as
follows:
"Alfred Semong, aged 30, lives and stays at Mogoditshane, west of Gaborone. He is self-employed and runs a taxi. He said that
he knows accused No.2. He had met him in 1991 at his place in Gaborone West and he had known him since 1990. Accused No.2 was also in the taxi business. He said that he also saw accused No.3 and that he is friends with accused No.2 and still are friends. In November,
1991 he had been informed that accused No.2 wanted him. He went to his place at Gaborone West and found him alone. Later accused No.3 came driving a white BMW car. Accused No.2 had asked him to give him a pistol because he needed it somewhere. He had said he wanted it to use it, to get some money and did not wish to give any further details. He had informed him that Tshepo had said he should give it to him. (Tshepo was indicated by this witness as the owner of the gun). Accused No.2 had asked the witness how much he would need and the witness had merely indicated it was up to accused No.2. The gun had some ammunitions and two magazines. He said he gave
him the pistol, black and brownish colour on the sides. This pistol is Exh. 6. The magazines were both loaded - Exh. 10. He said he then left. After about three days the witness heard accused
23
wanted him. He stated that he met accused at his home and he gave him the pistol and two magazines and PI 000.00.
The witness asked the accused what it was about and he said he was still busy, he would explain later. After a week and a few days accused No.2 came with Police. They leg ironed the witness and tied him to the accused. Accused
No.2 advised the witness to give the Police the pistol. He stated that he then gave them the keys and they found it in his vehicle and took it. They unloaded the pistol and found thirteen rounds in both magazines. They asked accused No.2 how much he gave the witness and he informed
them that he had given him PI 000.00. He stated that at that time he had P400.00. Subsequent to his arrest he had seen accused No.3 who was present when he gave accused No.2 the pistol. He was cross-examined extensively and he gave evidence that he had been admitted to bail in December, 1991, that he was aware it is an offence to have an unlicenced arm and ammunition and he sarci that the owner of the pistol had left it with him and that he had kept it in his vehicle all the time. He had had the pistol and ammunition for three weeks. He knew he took the risk of the gun and the pistol being found at a Police road block. He had kept the gun for Tshepo and he knew he would come to pick it up any time. He had learned that Tshepo had denied owning the gun. The Police informed him that the pistol had been stolen. He did not know the pistol had been stolen.
The learned Chief Justice says in his judgment that this
witness' evidence was highly suspicious. He was right in making
this observation. A reading of the evidence confirms this. It
is evident that he is a member of the criminal classes and that
his testimony was unsatisfactory - especially in minimising his
own culpability as well as in other material respects. However,
it is clear that the Court a quo was well aware of the dangers
inherent in accepting the witness' evidence linking the two
Appellants with the possession of the pistol. Indeed in his
evaluation of this version of the events the Court records that
"I can only accept it where it is obvious from all the
24 surrounding circumstances that he must be telling the truth."
The three critically important features of this aspect of the case are:
(1)
That Appellant No.2 brought the police to Semong and that this Appellant prevailed upon him to give them the pistol;
(2)
That it was from this pistol that the shot was fired that killed the deceased; and
(3)
That Semong identifies both Appellants 2 and 3 as being present when the transaction concerning the "loan" of the pistol was negotiated. Whilst No.2 was the'principal negotiator, 3rd Appellant arrived on the scene in
a white BMW car "got into the yard and stood at a distance talking to David" (2nd Appellant).
Once again the response of the two Appellants is a bare denial. Although 2nd Appellant admitted that he was present when Semong was arrested, he denied that he had taken the police to him, or that he had co-operated with them in the manner described,
both by the investigating officer and the witness. He denied that he was a friend of Semong, or that he had known him since 1990
as alleged by the witness. (This denial was also not put in cross-examination). 3rd Appellant simply denied that he had ever met Semong, he had seen him for the first time after his arrest.
Further circumstantial evidence linking 2nd and 3rd Appellants with the commission of the crime was given by PW18, Sanana Monyemolelo.
He knows both of these Appellants. 2nd
25
Appellant is his brother-in-law and he was staying with him and his sister during November, 1991. On the morning of the 15th of November,
1991 and at about 7 a.m., three people arrived at the house, the two Appellants and a third person. (In view of the finding- made above concerning the involvement of the 1st Appellant in the commission of the crime, there can be no doubt that he was the third person). These three entered 2nd Appellant's house and went to his bedroom; carrying a brown bag. 2nd Appellant asked the witness "to allow him (2nd Appellant)
to use the kitchen." (He was boiling water in the kitchen at the time). He vacated the kitchen and the three persons then went into the room. 2nd Appellant was tarrying the brown bag. The witness went to have a bath and when he went to tell them that he was leaving for work, he found that 1st Appellant had already left. He confirmed that 2nd Apellant had left home on the 13th of November and had only returned on the 15th. 2nd and 3rd Appellant were friends and No. 3 frequently visited 2nd Appellant's house.
The two Appellants were implicated by this evidence in an event that cried out for explanation. They respond as follows: Second Appellant simply denied that the happening described by the witness ever took place. He also denied the unchallenged evidence of Sanana, that he was not at home during the nights of the 13th and 14th of November. There is no evidence from 3rd Appellant on this issue and I must accept in his favour that, in the absence of any explanation on his part, he would also have denied having been present at an event which, taking place as it did a day after the murder, could in all probability have been
26 when the participants divided the spoils generated by the robbery.
This brings one to evidence as to moneys found on in the possession of the two Appellants and their explanations for their possession of significant amounts of cash. 1st Appellant's common law wife deposed to the fact that she received some P8 540.00 in cash from him - the first amount of P500.00 having been given to her on the morning of the 16th - 2 days after the robbery. Moreover, he had never before given her such a large sum of money. 1st Appellant's response, as we have seen, is in part a denial, inasmuch as he alleges that a substantial portion of the money had been given to him before the 15th of November -and in part an explanation. He sought to explain his possession of such large sums of cash, to cash receipts from his building operations that had been received in part in May, 1991 and partly in August of that year. This evidence is most improbable, in conflict with his common-law wife's evidence and in part ex post facto fabrication. I say this because his Counsel never put to the witness that some of these amounts had been paid to her before the date of the crime.
2nd Appellant's attempt to explain his predicament of possessing substantial cash funds, was to ascribe this fact to receipts from a variety of individuals whom he knew and in respect of whom he had issued receipts. Neither receipts nor witnesses were ever produced.
Third Appellant advanced a more ingenious explanation. He had a girl friend and she told the police that the P8 000.00 in cash found in his possession was "the proceeds" from the sale
27 of tickets of a festival which was to be staged the following day. He was efficiently cross-examined and challenged concerning this version. Having read this evidence, giving due weight to the fact that his girl friend was not called, and that no other corroborative evidence was introduced, I have no doubt that also in this case the cash funds found in his possession were the proceeds of the robbery.
The last aspect of the evidence I have to deal with is the "alibi" produced at the trial by the 3rd Appellant Mr. Naledi urged us to find that the learned Chief Justice erred in rejecting DW3's evidence, supported by a witness (DW4), that on the day in question he was in fa*ct at his hawker's caravan selling consumables. He had an altercation with a customer about change. This customersnone other than DW4
was called and alleged that although the incident had occurred two years previously, he was able to recall the date and the event. He had never met the 3rd Appellant before, he had no reason to give him his name or his address, yet he averred that he had given him "directions"
to his home in Broadhurst, Gaborone at the time they had their disagreement. These directions were well enough memorised by the Appellant to enable him to instruct his attorney, shortly before
DW4 testified, where to find him.
The Chief Justice was obviously entitled to reject this evidence and he was right to call it as he did "rehearsed" and that DW4 "was not telling the truth."
I summarise the evidence this Court accepts in respect of each one of the Appellants. 1. FIRST APPELLANT
28
1.1
We accept that he was correctly identified by the witness Mahusi as the person he met on the 4th of November, 1991 at Mogoditshane and whom he (the witness) introduced to Manthe and upon whom Mahusi prevailed to give Appellant a lift.
1.2
We accept Manthe's evidence that whilst travelling to Gaborone he had the incriminating conversation with First Appellant set out in this judgment. The nature of the conversation was of such a kind that it links the Appellant in two distinct ways with the ciTime, i.e.
1.2.1
It identifies him more reliably than if he had been pointed out at an identification parade,-
1.2.2
It brands him as a conspirator that had in mind an armed robbery of a "white man" in Motokwe "who had a lot of money" only some 10 days before the robbery in fact takes place.
1.3
Without any further evidence and in the
absence of any acceptable explanation, and more
particularly in view of the fact that three people
were involved in the crime, the inference of 1st
1st Appellant's participation would be well-nigh
irresistible. However, there is other evidence,
which in the absence of any acceptable explanation
links 1st Appellant directly with the events at
29 Motokwe on the night of the 14th of November.
1.4
1st Appellant's common-law wife, with whom
he has had two children, testified to his sudden,
unexpected absence from home during the period
13-15th November. He falsely tells her that he has been to Johannesburg. He is on his return suddenly flush with cash giving her some P8 540.00 during the course of the two weeks following the commission of the crime.
1.5
1st Appellant is the person who finds and
picks up the green coat secreted in the bush near
the Khango Cattle Post artti which matches the belt
with which Mrs. Bruwer was tied up during the
robbery. He is also the person who leads the
police to a point some 100 metres from 3rd
Appellant's house, where an envelope containing
documents that cam
