12 Jun 2023

Gaborone High Court Judge Dr Zein Kebonang has requested the prosecution and defence attorneys in the late Michael Montshiwa murder trial to dwell much on issues that will assist the court to arrive at an informed conclusion.

When the case was called for parties to present oral submissions of their final submissions on Friday, Dr Kebonang said the court was concerned about some pertinent issues that were left hanging and seeking clarity.

The case involves Modise David who is accused of the October 18, 2015 murder of former Fairgrounds Holdings Chief Executive Officer, Michael Montshiwa.

Dr Kebonang said since the case was based on circumstantial evidence, a number of issues needed to be ironed out for the court to have direction in passing judgement.

Therefore, he asked the parties to answer all the hanging issues and present their answers in the form of supplementary and present their cases before the court on Friday.

Judge Kebonang said part of the evidence that was presented by the prosecution was an eyewitness account as one of the witnesses had indicated that on the night when Montshiwa was murdered a red VW car was seen speeding away from the deceased’s house.

Another state witness said the accused person (David) on the day prior to the night of the incident was driving a black VW.

Another issue of concern was in relation to evidence gathered from the towers of a cellular network provider, Mascom.

Judge Kebonang said the state evidence was that on the night of Mr Montshiwa’s shooting, the accused person was placed in Block 6.

However, Dr Kebonang said what was lacking was establishing with certainty his exact location, whether he was at the deceased’s house or in the general area of Block 6.

Dr Kebonang also noted that the court was told that the gun that was believed to have been used in the murder and equally linked to Modise was also a pertinent subject for debate and an important component to the case.

Judge Kebonang said the state had in its evidence stated that the said gun was found at BOBS offices in Block 8 and that it was handled by a chain of people, of which the sequence of those who handled it was never established.

“On the contrary, the defence has in their submissions indicated that if the chain in handling of the gun was not documented, the accused person should walk,” he said also wondering if it would be necessary to admit the gun as part of the evidence and be used against the accused person without having established the sequence in which the gun was handled until it was used in the shooting.

Dr Kebonang also added that part of the evidence presented by the state was that the accused person made a call around 1030 pm and was placed to be around BOBS offices.

He said since the gun was found at BOBS, the court wanted both parties to assist as to whether it would be right to conclude that it was placed by the accused person.

Judge Kebonang also wanted to know if the said BOBS location was a public area, or whether it was restricted. He said it must also be clear whether the accused person could have access to that area or if it was restricted and it should also be established if they had ever accessed that area at any questionable time.

Dr Kebonang also added that the state had in their final submissions purported that the entire evidence that was presented by the accused person was nothing but a lie.

“How do I say it is a lie when I had nothing to compare with, help me identify the lie,” said Judge Kebonang.

Judge Kebonang added that part of the evidence presented by one of the state witnesses was hearsay.

Dr Kebonang said such evidence was that the accused person went to South Africa looking for a gun as there were three people that he wanted to kill as well as that he wanted to consult a traditional doctor.

As such, Dr Kebonang said since the evidence was presented by the witnesses as hearsay, the parties must help the court determine whether it would be proper to admit hearsay as evidence.

Additionally, Judge Kebonang also added that a printout of messages was also placed as evidence before the court by the prosecution believed to have been retrieved from the deceased’s phone.

Therefore, the court wanted to be guided as to whether such evidence must be subjected to hearsay evidence. ENDS