08 Feb 2015

Murder convict Matshidiso Ntwaagae was Thursday, February 5 cleared of murder offence by the Court of Appeal sitting in Gaborone after her appeal application, which sought the court to quash her conviction, succeeded. 

Ntwaagae managed a smile as the judgment was read. She was appealing her 12-year jail sentence and conviction which was handed down by former Lobatse High Court Judge Onkemetse Tshosa for the murder of her boyfriend Pule Letona, whom she hacked to death by an axe on July 05, 2009 in Phase 1, Gaborone west. 

Ntwaagae was an employee at a popular upmarket bar in Gaborone and at the time of the incident the deceased and Ntwaagae had been in a relationship for three weeks and the incident reportedly happened after they had both consumed alcohol and engaged in a fight at the deceased’s house. 

Delivering the judgement, Judge Monametsi Gaongalelwe said the prosecution evidence fell far short of negativing the defence raised by the appellant. 

The appellant had told the trial court that she was acting in self defence after she grabbed a weapon, which later turned to be an axe, from the deceased who was suffocating her with the scarf she was putting on. 

The incident also happened in the dark as the lights in the house were off and the door was also locked but subsequently broken down by a friend (Phemelo) who had earlier on intervened in a fight between the appellant and the deceased other girlfriend, Tshepo Kutlatswe.

Kutlatswe who also testified had told the court that earlier in the afternoon of the fateful day, the deceased called her in her mobile phone making an appointment that she visit him at his residence that evening and she accepted.

It turned out that the appellant was also keen to visit the deceased the same evening. At around 4 pm the appellant went to the place of Phemelo, who was not only a personal friend of the deceased but a neighbour as well. The idea was to make a short stop over at Phemelo’s house on the way to the deceased place. The deceased later joined them for a while and disappeared. 

While at Phemelo’s house the appellant together with Phemelo were drinking wine and eager to see the deceased crossing over to his place but found that he had locked himself inside and refused to open the door for her. She went back to Phemelo’s place to tell him of her frustrations and later made a second attempt where she was after a long time given an opportunity to enter after the door was unlocked.

It is her further evidence that after she had been with the deceased for only 10 minutes there was a knock and when she opened the door she found it was Kutlatswe who she pushed so that she does not enter the house but a fight started between the two. Phemelo intervened and both the deceased and the appellant locked themselves in the house until the two who remained outside heard the scuffle going inside. 

Meanwhile Judge Gaongalelwe noted that the essence of her defence is that she delivered the blows (axe) as she feared her life was in imminent danger due to being strangled with the scarf and the trial court did address the question of self defence. He noted that it is trite law that when such a defence is raised it is incumbent upon the prosecution to destroy it by admissible evidence.

He said another cardinal principle of the law which is always to be kept in mind is that the court has to ask itself before arriving at a verdict whether the accused’s version could reasonably possibly be true. In another words the court does not have to be convinced of the veracity of the accused’s version. 

Judge Gaongalelwe therefore said the trial court appears to have concluded that while the two were in the room the appellant was the aggressor simply because she had been the aggressor earlier in attacking Kutlatswe. Another factor, he said, which appears to have swayed the court’s view is that the court believed she must have started the fight in the room as it appears the deceased did not want her company that night but desired to be with Kutlatswe.

“It is my considered view that these factors constituted suspicions only as there was no evidence as to what happened in the room saved the appellant. A suspicion is only an unconfirmed belief and no matter how strongly held can never be a substitute for evidence”, he said. ENDS