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20 Feb 2023

Gaborone based attorney, David Modise has a case to answer in the murder of his client and former Fairgrounds Holdings chief executive officer, Michael Montshiwa.

This followed a ruling on Friday by Justice Dr Zein Kebonang of Gaborone High Court, who stated that Modise has a murder case to answer for, while his co-accused Tumelo Tshukudu was discharged and acquitted.

Nonetheless, Modise was discharged and acquitted on a theft charge as the Judge said the state had not demonstrated that he had stolen money from the late Montshiwa.

Regarding the acquittal of Tshukudu, Justice Kebonang said as per evidence before the court, Tshukudu’s involvement was only limited to assisting Modise acquire a gun. "What is the second accused (Tshukudu) doing here Rre Ndlovu? Why have you charged him?" Dr Kebonang asked the prosecutor, Mr Moagi Ndlovu, before the state conceded that Tshukudu had no role in the murder committed on October 2015.

Concerning Modise, Justice Kebonang said though evidence was circumstantial, all evidence pointed that Modise was the last known person in custody of the gun allegedly used in the killing hence he has to answer.

Such a decision was however opposed by Modise’s attorney, Mr Ofentse Khumomotse, who had earlier told the court that state had failed to pin his client to the murder, adding that although the evidence was circumstantial, it was also full of inconsistencies.

"The prosecution case is made up of tales of assumptions," said Mr Khumomotse.

As such, he said his client ought to walk free and had no case to answer for both murder and theft charges laid against him.

Mr Khumomotse said the state failed to show that Modise was the last person in custody of the gun and was never called to sign for the gun when it was discovered during investigations.

He said the investigating officer had previously told the Magistrate's court that there was a witness who said she heard Montshiwa shouting, ‘bring back my money’, before he was shot, adding that the witness was never called to take a stand before the court.

Mr Khumomotse said it was either the state was misleading the court or had withheld information that would enable his client to prepare for his defence hence contravening the law and trampling upon the accused’s rights.

Also, he said one state witness told the court that he saw a red VW Golf car and the state had failed to show the relations between his client and the red VW Golf.

Further, he said another witness said he saw a light skinned man at the crime scene whereas the state had brought his client, who was dark skinned to the court.

Mr Khumomotse said the state had failed to prove to the court that the bullet jacket found at the crime scene was from the gun that Modise once possessed, as the state had also failed to distinguish between characteristics of a class of guns and of an individual gun.

“The state case must fall by its own deficiencies, there is no need for him to be called to defend himself," he said.

However, the prosecutor Mr Ndlovu said though the gun exchanged custody while in police possession as an exhibit, it had unique identifiable serial numbers and had never been tempered with.

Regarding the ballistic expert witness, he said the witness used simple language for the benefit of the court or any individual who was not a ballistic expert.

Furthermore, Mr Ndlovu said the state case hitched on direct and in-direct evidence, adding that evidence when viewed individually would mean nothing but when looked in total would have a meaning.

In addition, Mr Ndlovu said witnesses’ evidence corroborated and all pointed to Modise as the culprit, adding that the state had shown that Modise left his friends at Millennium Bar and was detected by mobile phone records around the crime area on the same day of the crime.

"I have never seen you with so much energy," Justice Dr Kebonang interjected Mr Ndlovu before allowing the court to go on recess and ruling that Modise had a case to answer. The case would continue on March 11 and the defence had indicated that they only have one witness. ends