12 Dec 2022

The Broadhurst Magistrate Court will on January 26 decide on whether the prosecution has violated procedure barring a witness on the dock from discussing their evidence with any other parties, while under oath.

The issue follows a recent incident where the prosecutor in the P2.3 million G4S Security Company cash heist armed robbery case, Mr Farayi Mahwite allowed a witness to peruse a photo album, which was requested by the defence attorney, Mr Olehile Manchwe as reference for cross examination.

The state witness, Mr Tshepo Simba was under cross examination by the defence when defence attorney for the first and second accused persons, Mr Manchwe requested for a short break in order to access an album of photos that were taken at the scene, where the accused persons were arrested.

The issue of contention emerged when during the break, the prosecutor offered the witness an opportunity to go through the photo album.

When the case resumed, Mr Manchwe informed the court that something tantamount to violation of the court order of reminding the witness that he was under oath and therefore must not discuss his evidence with anyone including the prosecutor, had transpired during the break.

“I regret to inform the court that during the break a photo album that I had intended to use as I continue with cross examination has been handed over to the witness to peruse. I confirm that I observed the witness paging through the album. I concluded that the accused persons’ case is being interfered with. This is the only witness who has told the court that he had visually identified one of the accused person,” said Mr Manchwe.

He indicated that since the prosecution had interfered with a witness, who was under oath and still giving evidence, such testimony was tainted and therefore must be expunged from the court records. He said if the prosecution had wanted to engage with the witness, they must have done so by first asking the court to allow them to do so.

Mr Manchwe said since the prosecutor had handed over a document that was to be used by the accused persons as part of their defence to a witness, it was tantamount to violating a court order which ordered the witness not to interfere with anyone while under oath. “Non-compliance with the court order was a clear case of contempt of court,” he said.

Meanwhile, the prosecutor Mr Mahwite admitted handing over the photo album to the witness. “I wanted him to have a look at the photo album since the defence counsel had made it categorically clear that he needed the photo album for cross examining the witness. I believe the witness must have sight of what cross examination will be based on without ambushing and taking him by surprise,” said Mr Mahwite.

He said the law does not prohibit the prosecution from sharing evidence with a witness and therefore he challenged the defence attorneys to show the law that precluded such act.

“What I only see here, is that my colleague wanted to ambush the witness. I do not see any prejudice that the defence suffered from the mere viewing of the album by the witness,” said Mr Mahwite.

Mr Simba had earlier on told the court that on October 13, 2021, he was robbed of his car at gun point, by a man whom he identified in court as the fourth accused person, Ntholephi Ntshalintshali.

Mr Simba told the court that the accused person was putting on a yellow t-shirt and therefore, the defence attorney had requested for the album with photos that were taken at the said scene to tally it with what was said by the witness.

Mothusi Alfred Matomela, Thapelo Lekobe, Mzwandile Mazibuko and Ntholephi Elliot Ntshalintshali are charged with armed robbery, unlawful possession of fire arm, unlawful possession of ammunition, and possession of goods stolen outside the country.

On the first count of armed robbery, the four accused persons, acting together and in consent, armed with pistols and rifles robbed G4S Security Company cash amounting to P2 310 000, an AK47 rifle and a pistol on October 13, 2021 at Turn Right Mall, along Gabane road.

Mazibuko and Ntshalintshali, South African nationals are also facing another count of entering Botswana through an ungazetted point.  ENDS