Simon and Another v The State (Criminal Appeal No. 29 of 202) [2003] BWCA 30 (25 July 2003)

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Simon and Another v The State (Criminal Appeal No. 29 of 202) [2003] BWCA 30 (25 July 2003)

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IN THE COURT OF APPEAL OF BOTSWANA

HELD AT LOBATSE

Criminal Appeal No. 29 of 2002 High Court Criminal Trial No. 41 of 2002

In the matter between:
1^st Appellant 2^nd Appellant
DOUGLAS SIMON MAOKANENG MOKOLONG
and
THE STATE Respondent
Mr. E. G. Mosate for the 1^st Appellant
Mr. C. Tlagae for the 2^nd Appellant
Mrs. I. L. Dambe with Ms. L. Muzila for the State
JUDGMENT
Coram: P.H. Tebbutt, J.P.
C. Plewman, J.A. F. H. Grosskopf, J.A.
TEBBUTT, LP.:
It is convenient to refer to the two appellants in this appeal by their surnames viz first appellant as Simon and second appellant as Mokolong.
George Chabe, the deceased, as he will be referred to hereafter, died from poisoning during January 2000. The poison that caused his death was a green

chemical substance known as "malachite green", which is toxic to human beings and if ingested in the human being can be fatal.

The two appellants were charged in the High Court with murdering the deceased. It was the State's case that Simon had administered the poison to the deceased and that it was Mokolong who had provided Simon with the poison to enable him to administer it. Both appellants pleaded not guilty but after a somewhat lengthy trial Chatikobo, ] found that the State had proved its case against them and convicted them of murder. He further held that there were no extenuating circumstances and accordingly, as he was then obliged to do, sentenced them both to death. They now appeal to this Court against both their convictions and sentences.

The background to this case is that the deceased worked for Simon's company, Concorde Freight (Pty) Ltd., as its managing director. Simon alleged that the deceased had stolen about P24 000 from him. One Lerato Mapeo had at about the same time obtained an order from the Industrial Court against Concorde Freight which the Deputy Sheriff, one Debrain James Moyo, sought to enforce by attaching certain goods belonging to Concorde Freight. On 16 December 1999 when Moyo went to remove the goods, Simon gave him two cheques to satisfy the debt. Moyo testified at the trial that Simon was furious about having to pay because, according to him, he had been cheated by Lerato Mapeo and the deceased. Moyo said that in his presence and that of his assistant, one ]ohn Molefe, Simon said he was "just paying the amount and they will not enjoy the new year". Moyo warned him not

to take the law into his own hands to which Simon responded "if you think I am playing you will see". He asked Simon how he was going to do it to which Simon replied that he would "try traditional medicines" but if they failed he would try other means. Simon was furious at the time. Moyo said he alerted Lerato to the threats which he took to mean that Simon would kill them. He was very shocked to learn later that the deceased had died. Molefe corroborated Moyo's evidence. He said that Simon said that the deceased and Lerato would not benefit from his money. Molefe told him he should not speak like that to which Simon responded "when a person is dead, he is dead". He said Lerato and the deceased had stolen money from his company. Molefe went to report to the police what Simon had said a few days later. These allegations were not denied by Simon.

The further background evidence came from an accomplice, Tebogo Batlhomi. He testified that Mokolong was a traditional doctor. He also had a shebeen. He was a frequent visitor there, as was Simon. In January 2000, Simon wanted him to meet the deceased. Simon phoned the deceased to invite him to a party on a Sunday. Batlhomi then went to meet the deceased to arrange to take him to the party. He was taken to the deceased's house by one Kagiso.

On the Sunday, Simon arranged for a taxi to ferry him and the deceased to the party which was to be in Mokolodi. On the way there they saw Simon's car parked by the side of the road. Mokolong was with Batlhomi and the deceased in the taxi.

They disembarked from the taxi and got into Simon's car. They then started drinking. Simon said that they should not drink at the side of the road. They drove along the Lobatse road before turning into the bush, where they continued drinking. Batlhomi went to sit under the shade of a tree. Mokolong went to relieve himself. Batlhomi said that at that stage he heard noise emanating from near Simon's vehicle. He went to investigate and found Simon on top of the deceased pinning him to the ground. Simon had put a bottle inside the deceased's mouth. He was holding the deceased with one hand and making him drink the substance in the bottle. He pulled Simon off the deceased and noticed that the deceased had been splashed with some green stuff on the mouth and on the T-shirt he was wearing. As he pulled Simon away, Mokolong asked Simon what he was doing to the deceased. Simon was annoyed at the time. They left the scene in Simon's car leaving the deceased behind. On the way home Simon told him that if he told anybody what he had done, he would kill him. Particularly, he should not tell any police officer. Mokolong was also in the car at the time. Batlhomi said he was very scared. Simon dropped them at Mokolong's place. Mokolong realised that he was very scared. Mokolong told him Simon had made the deceased drink the medicine which he had got from him, Mokolong, but it was not poisonous. Simon had got the medicine from him "because he had fought with his wife".

Kagiso testified that he worked for Concorde Freight. On 7 January 2000 he was called to Simon's office where he met Batlhomi for the first time. Simon asked him

to take the latter to the deceased and to tell the deceased that Batlhomi would be the person who would fetch him to take him to the party on the Sunday. On the Wednesday following the Sunday, Simon told him the police were looking for them. On the way to the police station, Simon told him, Kagiso, that if the police asked him about his taking Batlhomi to the deceased he must deny it. At the police station they were told to return the following day i.e. on the Thursday.

Simon then said they were going to have a sleepless night i.e. on the Wednesday, as they were going to consult traditional doctors. At about 2 a.m. they visited the hut of a traditional doctor, who happened to be Mokolong, who performed certain rituals. Later, at another village, they visited another traditional doctor where Batlhomi was also present and where, again, certain rituals were performed. Kagiso was not present when the events of the Sunday took place.

The pathologist who conducted the post-mortem on the deceased found a greenish substance in the stomach of the deceased which, on forensic analysis, was shown to be malachite green. The pathologist concluded that the cause of the death of the deceased was malachite green poisoning.

The forensic analysis also showed that the greenish substance that stained the neck of the deceased' T-shirt was green malachite. It was common cause that the police

recovered a substance from Mokolong's house which was identified as malachite green.

The further evidence was that the deceased was found on the morning of the Monday following the Sunday lying groaning in the bush. He could not talk. He had vomited, such vomit being described as "sky blue" by the man who found him or "green" by the police who were called to the scene. The deceased was dead when the police arrived.

The police searched Mokolong's house and apart from a bottle of green powder i.e. the malachite green, also found a brown substance in a bottle which could not be identified on analysis.

That, in brief, was the evidence on which the State relied for its allegations that it was Simon who had administered to the deceased, from which he died, the poisonous malachite green which he had been given by Mokolong. The State also produced a statement made by the accused after his arrest to a judicial officer, the admission of which into the evidence was consented to by the defence.

In this statement Simon averred that in 1997 he discovered that the deceased had stolen about P24 000 from Concorde Freight. The deceased refused to repay it. He reported the matter to the police. Simon said he then fell ill after he had

7
developed a sore on his body. He was operated on and had a brief recovery but
got ill once again, this time becoming paralysed. He consulted traditional doctors,
including Mokolong, who told him someone who owed him money was "fighting
for my death". He paid Mokolong P500, a deposit of a fee Mokolong wanted of
PI 500, who placed some medicine oi his hand and told him to blow on it and his
illness would then be transferred to the deceased. This did not work. Mokolong
then said he could cure him if he could get a copy of the deceased's footprints and
told him to take Batlhomi with him to help him do so. Simon said he sent Batlhomi
with Kagiso to make a Sunday appointment with the deceased. On the Sunday he
gave Batlhomi and Mokolong money for a taxi to fetch the deceased. Simon said
he met them at Mmokolodi junction where the deceased's footprints could be lifted
from the soil there. At the deceased's suggestion they then went to a bar at Boatle
where they sat in his, Simon's, vehicle and drank wine. They discussed the case
between him and the deceased and he, Simon, said he could not withdraw it from
the police. Mokolong and Batlhomi "started talking with the deceased intending to
move away to a place where they could lift his shoe/footprints." Simon's statement
continues thus:

"I remained in the motor vehicle. I could see them at a distance, while I was in the motor vehicle.

I then saw Mr. Maokaneng (Mokolong) come back with his boy. He said that George had told him that he was not going with us, for we might be long since we were going to a far away place and that he said he will get a lift to Gaborone. He said he had with him George's shoe/footprints and he showed them to me.

8
I then took Mr. Maokaneng and the boy to Maisane."

Simon said that on the way Mokolong mixed the soil and some medicine and told him his illness had been transferred to the deceased and that he, Simon, would recover. Simon then paid him the balance of PI 000 of his fee.

That was the sum total of Simon's statement.

At the conclusion of the State case, Simon elected not to give evidence but chose to rely entirely on the contents of his statement.

Mokolong gave evidence on oath. He said he was 72 years old. He had been a traditional healer for a long time. Simon was one of his clients. A month before the events concerned in this case, Simon had consulted him about a case involving his, Simon's wife's infidelity. He wanted to be fortified so as to win his case. Mokolong had performed a cleansing ritual on him. On the Friday before the fateful Sunday Simon had invited him to a party on the Sunday. He said that if he was not busy he would attend. On the Sunday Simon came to him and invited him to travel with him, Simon, to the party. He and Batlhomi went with Simon to the bus rank at Gaborone where they took a taxi on Simon's instruction for which Simon provided the money to pick up the deceased for the party. The three of them then went by the taxi to Mmokolodi where they met Simon, parked by

the roadside. They got into his vehicle and started drinking. Simon told the deceased he had stolen P45 000 from him. Simon was upset. Simon then drove along the Lobatse road until they came to Boatle where they turned in the direction of Mankgodi before turning into the bush where they stopped, got out of the car and continued drinking. The discussion between the deceased and Simon over the money carried on. Mokolong said he left them to relieve himself and to look for medicinal roots and herbs when he heard noise and returned to the car to find Batlhomi pulling Simon off the deceased. Simon had pinned down the deceased and was administering "some medicine" to the deceased while he was lying there. He asked what was going on. Simon was annoyed with him and said he would leave him there. He then suggested to the deceased that they should get into Simon's car because he intended leaving them but the deceased refused to do so because "look what he has done to me". Simon then started driving off saying he was leaving them behind. He and Batlhomi jumped into the car and they all drove off leaving the deceased behind.

Mokolong said he had given Simon two sets of medicines, one green and one brown and instructed him to bath with them. Simon had never told him he wanted to kill the deceased.

Under cross-examination, Mokolong said he usually procured the green substances which he called, using the Setswana words for it, "green malachite" from a chemist

to use in cleansing rituals. He said he did not know that it was poisonous. He sometimes ate a little of it himself to protect himself against the spells of other traditional doctors.

The learned trial Judge found that on all the evidence against Simon his guilt had
been overwhelmingly established. That evidence included the testimony of
Batlhomi. On appeal before this Court, Mr. Mosate for Simon submitted that the
learned Judge had erred in relying on Batlhomi's evidence and that he had not
approached that evidence with the caution required in dealing with the testimony of
an accomplice. It was necessary for the Court to decide, firstly, whether the
accomplice was a credible witness and only then to seek corroboration of his
evidence. If the court could not find that he was a credible witness, that was the
end of the matter. So far there can be no quarrel with Mr. Mosate's submission.
He then went on to submit that the learned trial judge had made no finding as to
Batlhomi's credibility. Moreover, so he argued, it was clear that Batlhomi was not a
credible witness. As to the first criticism of the learned Judge, it is clear that he
did advert his mind to Batlhomi's credibility. He said

"Batlhomi is an accomplice. In some respects he played down his role in the attack upon the deceased. Contrary to what he told the judicial officer, namely that he was asked by the first accused to assist in subduing the deceased and he held the deceased from behind, he sought to say that he was pushing the first accused off the deceased. It is significant however that the rest of Batlhomi's evidence is largely common cause. It is unlikely that he could have lied about this single incident."

Although the learned Judge did not specifically say that he found Batlhomi a credible witness, it is implicit in the passage I have just cited that he found Batlhomi had not been untruthful with the court, the only contradictory aspect as far as the learned Judge was concerned being a contradiction between his statement that he assisted Simon in subduing the deceased and his evidence that he tried to pull Simon off the deceased when he was forcing him to drink the poison. I agree that while this is a contradiction it is not such as to vitiate the whole of his evidence. The rest of his evidence conforms with that of other witnesses such as Kagiso and is also borne out by the evidence of Mokolong who said he saw Batlhomi pulling Simon off the deceased. It is also in many respects corroborated by Simon himself as to sending Batlhomi and Kagiso to make the Sunday appointment with the deceased; his giving money to Batlhomi on the Sunday for taxi fare to get the deceased to Mokolodi; their all meeting at the Mmokolodi junction; and their leaving the deceased in the bush. I therefore find that the trial Judge did not err in relying on Batlhomi's evidence. It was also confirmed in almost every material respect by Mokolong. The evidence of a co-accused is, of course, admissible against another accused. It should, however, be treated with the same caution as that of an accomplice. The trial judge rejected his evidence on a number of aspects such as his having given Simon the green malachite to put in his bath to win his case against his allegedly unfaithful wife, which the trial Judge found incapable of belief. He also found it impossible to believe him when he said he ate some of the malachite himself. While these criticisms may well be justified the rest of his

testimony, as to how the deceased came to be with them in the bush and what occurred thereafter is either common cause or also finds confirmation in Simon's statement. The fact that the deceased was administered malachite green was confirmed by what the witness who found him, and the police saw at the scene where the deceased lay. That someone administered the poison to him is obvious -he did not drink it himself. The only persons present who could have done so were Simon, Batlhomi or Mokolong. There is not a tittle of evidence to suggest that it was either of, or both, the latter two. Why would they have wanted to kill the deceased? They had no dispute with him; Batlhomi had, in fact, only met him once before. Simon, on the other hand, had a real grievance towards the deceased: one which he was still airing on the Sunday. It was never suggested by Simon's counsel in cross-examination of either of them that it was they who had forced the deceased to drink poison, and there is, in addition, the telling piece of evidence that the deceased in the presence of Simon, in refusing to get into his car to leave the scene of the assault on him, said that he was so refusing because "look what he has done to me".

Mr. Mosate argued strenuously that the Court should accept the version of Simon as contained in his statement in preference to the evidence of Batlhomi and Mokolong who, he submitted, should not be believed. That version, so Mr. Mosate argued, raised an alibi by Simon i.e. that he could not have administered the poison

to the deceased because he was not there. The onus was on the State, he said, to disprove the alibi which it had not done.

I cannot subscribe to that argument for two reasons. Firstly what Simon said about his involvement in this matter was never given in evidence on oath in Court and was not, and could not be, tested in cross-examination. Although made on oath before a judicial officer, because it was completely untested, the Court could only give it very limited weight and where it conflicted with the sworn and tested testimony of Batlhomi, whose evidence the trial court accepted, and Mokolong, the trial court was correct in not accepting Simon's version in preference to theirs. Secondly, Simon's version is not in truth an alibi. He was present with the other three persons and although he says he remained in his vehicle, he said "I could see them at a distance while I was in the motor vehicle". One asks if he could see them and if it is his version that it was they who attacked the deceased- which it would have to be if it was not he - why he did not tell the judicial officer that in his statement or, as he knew he was being accused of murdering the deceased by administering the poison he did not give evidence to that effect. The instinct of self-preservation is a very powerful one and one would have expected him, when he knew he was in the shadow of the gallows, to tell the Court that it was Batlhomi or Mokolong who had killed the deceased if they had done so.

Mr. Mosate submitted that even though Simon had not done so, there was

nevertheless a reasonable possibility that it was they and not he who had done the poisoning. Firstly that was never suggested to them and secondly it would be pure speculation on this Court's part for which there is no foundation in the evidence.

The Court is not obliged, or indeed permitted to indulge in mere speculation on the
possibility of facts which may establish an accused person's innocence (see
Gofhamodimo v State 1984 BLR 119 (CA) at 132, 134). As stated by Lord
Denning in Miller v Minister of Pensions (1947) 2 All ER 372 at 373:
"The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice."

As against this there is not only the direct evidence of Batlhomi and Mokolong but also a large number of other facts to which the Court a quo referred in its judgment. These are, in summary, that -

Simon's utterances to Moyo and Molefe were manifestations of an intent to at lease cause harm to the deceased if not to kill him.

Those utterances that he would try traditional ways and if they failed used other means are borne out by his own statement and Mokolong's evidence.

Simon, on the pretext of inviting him to a party lured the deceased to Mmokolodi. He planned the steps that were

taken to get him there, such plans involving others to help him do so no doubt in order to draw red herrings across the path leading to his own complicity.

Simon had a manifest motive for wishing to poison the deceased viz the latter's alleged theft of money from his company which obviously rankled with Simon.

Simon's threats to Batlhomi and Kagiso as to what he would do to them if they told anyone of what he had done or asked them to do.

On the Wednesday following the Sunday he had gone to traditional doctors, including Mokolong, to undergo cleansing rituals, actions again indicative of his guilt.

These factors plus the direct evidence against him persuade me that the learned trial Judge was correct in convicting the appellant of murder.

On the question of extenuating circumstances, Mr. Mosate conceded that only two possible factors could be advanced as extenuation viz a belief in witchcraft and intoxication. As to the latter, although there was evidence of drinking at Mmokolodi and in the bush there is nothing to suggest that Simon was intoxicated or to such an extent as to diminish his moral guilt. That Simon believed in witchcraft is also clear from his regularly resorting to traditional doctors. Again,

however, there is no evidence that he poisoned the deceased because he thought the latter was bewitching him. Neither of the two factors advanced as possible extenuating circumstances amount to such. Against this is the fact that Simon carried out a deliberate, premeditated and planned poisoning of the deceased in execution of his threats that he intended to exact revenge for what he perceived to be wrongs committed by the deceased against him in stealing money from his company and causing him other financial loss by having to pay monies in satisfaction of an Industrial Court order against him. I cannot fault the trial court in finding no extenuating circumstances to be present. His appeal therefore falls to be dismissed.

So much for Simon. What of Mokolong?

The trial court found that in supplying Simon with the malachite green he had done so knowing that Simon would use it to poison the deceased. His explanation that he did so for Simon to use it in a bath to win a case was, as I have set out above, rejected by the trial judge as farcical and nonsensical. The learned Judge also said that following what had happened in the bush, Mokolong was, according to Batlhomi, "scared" and in his own words had said he felt "something was amiss". This, the Judge found was the reaction of one who knew that what the deceased had ingested was poisonous. He had also performed a cleansing ritual on Simon on the Wednesday following the fateful Sunday, which again pointed to his guilty state of mind.

In my view the learned trial Judge erred in placing as much reliance as he did on the factors mentioned. It would seem from the evidence that Simon's resorting to traditional doctors had resulted in Mokolong's providing him with medications to remedy problems in his business and domestic affairs prior to the events of the Sunday. That Mokolong may have given Simon the malachite green with which to bath to ward off an evil spell while no doubt far-fetched and incredulous to a sophisticated man may not have been thought to be so by the simple rustic man that Mokolong seemed to be with his obvious belief in his powers of witchcraft.

The learned trial Judge also erred on a factual aspect. He said that after abandoning the deceased in the bush "the second accused (Mokolong) expressed concern. He was scared. In his own words he just felt that something was amiss." Mokolong did say he was concerned but he never said that he was scared nor anywhere in the record did he say he felt "something was amiss". It was Batlhomi's evidence that it was he, Batlhomi, who was scared and that Mokolong had then said that what Simon had made the deceased drink was not poisonous. Mokolong said he "did register a concern" at the scene because he did not know what was going on and because Simon said he was going to leave him in the bush.

While the factors referred to by the learned Judge may have some validity, that is only of a limited nature in considering all the evidence. The trial court failed in its judgment to deal with and to weigh up three pertinent and vital pieces of evidence

viz (1) that Mokolong, according to Batlhomi, whose evidence the trial Court accepted, showed surprise and asked what was going on when he saw Simon assaulting the deceased, showing clearly that he had no knowledge that Simon was going to attack the deceased; (2) that he reprimanded Simon for what he was doing to the deceased; and (3) the fact that Simon was at the time furious with Mokolong and threatened to drive off and leave him behind in the bush. It is highly improbable that if, as the trial Court found, Mokolong and Simon had acted with common purpose to kill the deceased, Mokolong would have reacted as he did to Simon's attack on the deceased. He obviously had not expected the turn of events in the bush, as appears from what I have set out, and his remark, as testified to by Batlhomi, that "this man took us from our homes and we do not have money to take buses" when Simon threatened to leave them all behind is further support for that.

Mrs. Dambe, for the State, conceded that this was an incontrovertible hurdle in the State's case.

As to Mokolong's evidence that he did not know that the substance he gave to Simon was poisonous, she conceded that on all the evidence, even though it was improbable that Mokolong did not know it was poisonous, it could not be said that his story in this regard may not be reasonably possibly true.

In the light of these factors I am of the view that the State did not succeed in proving Mokolong's guilt beyond reasonable doubt and that the trial Court erred In convicting him. His appeal must accordingly succeed.

In the result the following order is made:
1.      The appeal of the first appellant, Douglas Simon, is dismissed and his conviction and sentence are confirmed.
2.      The appeal of the second appellant, Maokaneng Mokolong, succeeds and his conviction and sentence are set aside.
Delivered in open Court on this ^^day of July 2003.
_fJlH^JLuu^
P. H. TEBBUTT judge President
I agree C. PLEWMAN
Judge of Appeal
_/I
         ! U ^lC u- -
I agree F. H. GROSSKOPF
Judge of Appeal

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