06 Nov 2022

The Court of Appeal (CoA) has acquitted and discharged Bathusi Mpitse on a single count of murder due to lack of evidence.

Mpitse, who was accused of murdering Maoto Ntwaagae of Mahalapye on September 30, 2016, was convicted and sentenced to 18 years in prison by the High Court on June 4, 2021.

Delivering judgement by a panel of judges, Judge Mercy Garekwe noted that the appellant’s grounds of appeal were that the lower court erred both in law and fact by finding that the he caused the death of the deceased and with malice and aforethought. 

Judge Garekwe said Mpitse was found guilty and sentenced despite the fact that none of the state witnesses implicated him as the assailant or the person who hit the deceased causing his death.

Giving a brief background of the case, Judge Garekwe said “It was alleged that he (the appellant)  assaulted the deceased and was ultimately convicted under section 21 of the Penal Code on the grounds of aiding and abetting.

“This was prejudicial to the appellant as no facts and evidence supporting the charge of aiding and abetting were placed before the court and no opportunity was given to the appellant to defend himself against the charge,” said Judge Garekwe.

The Court of Appeal found that none of the state witnesses placed the appellant at the scene of the crime where the deceased was struck by an unidentified object inflicting the injuries that ultimately caused his death. 

“The court found that there was no evidence pointing to the appellant as the perpetrator. No evidence was placed before court in rebuttal of the accused person’s evidence that he was a distance away from the scene when the deceased was assaulted,” said Judge Garekwe.

During trial the appellant had told the court that he had remained behind to urinate and that he never participated in the assault.

Judge Garekwe said no evidence was placed before court to proof that the appellant intentionally aided the person who committed the crime and that the appellant acted with intent to facilitate the commission of the crime. The CoA ruled that based on the circumstances presented by the evidence from state witnesses and the appellant, the sentence was long, shocking and retributive.

Judge Tau said even if there was evidence pointing to the observance of the commission of the offence by the appellant, the appellant could not on the basis of mere observing the commission of an offence and not reporting it, be deemed to have aided or abetted the commission of the crime.

“As such the appeal succeeds and the decision of the court a quo set aside. The appellant is found not guilty of the offence of murder and is accordingly acquitted and discharged,” said Judge Garekwe. 

The panel of CoA judges who presided over the case included Justices Tebogo Tau and Terrence Rannowane. ends