20 Feb 2023

An attempt by a manslaughter convict, Ofentse Modisane to convince the Court of Appeal (CoA) to set his conviction aside, turned into  blow as the CoA substituted it with that of murder.

Therefore, the case has been referred back to the High Court to determine whether there were extenuating circumstances to take into consideration and to deal with other procedures that shall follow in terms of the law.

The case was before a panel of three judges, being Isaac Lesetedi, Frederik Brand and Leatile Dambe.

Delivering the CoA decision on Friday, Justice Dambe said Modisane’s appeal against conviction and sentence imposed by the lower court was dismissed, set aside and replaced with new order that the appellant was convicted of murder.

Modisane had lodged an appeal against conviction and sentence on the grounds that High Court erred in convicting him despite having tendered sufficient evidence disclosing self defence. Modisane also indicated that the sentence imposed by High Court was excessive considering the circumstances of the case.

Giving the background of the matter, Justice Dambe said particulars of the offence were that the accused persons, Ishmael Gure and Modisane on November 21, 2013 at Broadhurst (Extension 20) in Gaborone acting together and in concert murdered Champion Butale. “After arraignment, the prosecution made an application for the first accused person, Gure to be made an accomplice witness. The application was allowed and the charge of murder was drawn against him and he was discharged after his testimony,” said Justice Dambe.

She said evidence of the forensic pathologist indicated that death of the deceased was due to stab wounds on the right thigh which has injured the blood vessels. Therefore, Justice Dambe said the pathologist revealed that the deceased appeared to have been stabbed from the back, either standing or bending and in his opinion the injuries were caused by a sharp object like a knife.

Justice Dambe said one of the prosecution witnesses, Motshidisi Ditsele had testified that the deceased was attacked by two men and that on checking him after the assailants ran away, he realised that the victim was bleeding from the thigh. The CoA also learnt that the accomplice witness, Gure had in his testimony told the trial court that he was on a drinking spree with Modisane on that fateful day and one of the locations that they went to was a shebeen at Extension 27, and later went to Total Filing Station to buy pies and a certain man alighted from a car parked nearby.

Gure had further revealed that when the deceased was about to pass, Modisane grabbed the phone from him and ran away. “The deceased ran after Modisane and within a short distance, I heard someone screaming,” he said. He had told the court that he never saw the beginning of the scuffle, but when he came closer, he saw Modisane holding a knife, while deceased remained motionless on the ground.

In his defence, Modisane had indicated that during the squabble over the phone, the deceased assaulted him with fists. He also revealed that while the deceased was pressing him down he observed that he was reaching out for a stone, uttering the words that he was going to finish him off.

At that moment, Justice Dambe said the appellant had revealed that he had a knife in his pocket, therefore he opened it and stabbed the deceased.

Even though the appellant’s attorney, Mr Sharpe Dubula had sought to withdraw the appeal, there were fundamental misdirection in the judgment of the below court which both parties accepted to have resulted in a miscarriage of justice.

“In terms of rule 43(4) when the matter was called on the date set for hearing, the appeal against conviction could only be withdrawn only with leave of this court. However, the rule provides that leave shall not be granted if the court is of the view that it is proper to exercise any of its powers under rule 32 to vary conviction returned or the sentence imposed by the court below. The court did not grant leave and the matter proceeded on the grounds filed,” said Justice Dambe.

She said for the prosecution to get a conviction on a charge of murder, the court must prove beyond reasonable doubt that the death of the deceased resulted from acts of the accused, that in so causing the deceased’s death, the accused person acted of malice aforethought and there was no lawful justification for the accused person’s conduct.

Justice Dambe said the appellant in his scheme to steal the phone from the deceased took out an okapi knife from his pocket and stabbed the deceased in order to quell any resistance put up by the deceased as he robbed him of his property. In stabbing the deceased, the judge said the appellant intended to do grievous bodily harm to the person with malice after thought and his actions rendered him criminally liable for the offence of murder.

The CoA said the finding by the judge below that; “the stabbing was deliberate but the intent at that stage was not to kill,” was the first issue of concern.

Justice Dambe said another issue as observed by the CoA was that the High Court had indicated that the appellant retaliated by using a knife and stabbing the deceased in the leg area below the buttocks, an area not considered as part of vital organs may be viewed as no intent in the first instance.

“There was no factual basis nor legal basis that the appellant pulled out a knife ostensibly in self defence towards the deceased. There was no basis for the finding that the appellant was retaliating when he used the knife,” said Justice Dambe. ends