19 Jun 2023

Judge Dr Zein Kebonang of Gaborone High Court will on Friday determine the fate of murder accused, Modise David.

David is charged with the murder of Michael Montshiwa. The judgement follows oral final submissions by the defence and state attorneys last Friday.

The state attorneys; Ms Merapelo Mokgosi and Mr Moagi Ndlovu said although the case was primarily reliant on circumstantial evidence they were confident that they had proven their case beyond reasonable doubt.

Mr Ndlovu said the prosecution was able to discharge its burden of proof and that it had proven its case against the accused. He said the weapon (gun) that was used in committing the crime had been identified by witnesses and the ballistic expert. He said the accused was identified as the owner of the gun.

He said the state had also presented communication records that were retrieved from the deceased cellular phone between the him and the accused that were made some few minutes prior and after the shooting, and that they had placed the accused at Block 8 in the vicinity of the deceased’s residence and BOBS headquarters where the murder weapon was subsequently found.

Mr Moagi said evidence that was retrieved from the deceased’s phone had made it clear that on the night of the shooting he was expecting a visit from David.

He said the court must appreciate that the gun was accordingly and convincingly identified by witnesses as the one that was bought by David.

“The facts speaks to the accused as the person that was seen fleeing the scene (deceased’s house) after the shooting, although he was not physically identified by the witnesses.

“It was a doctrine of a dramatic scene, causing confusion to an extent that even though witnesses saw the perpetrator flee in a vw car, its colour remains an issue as there was mention of a dark red and black more so that it was at night. It would make sense to submit that dark red colour is closer to black,” he said.

Mr Ndlovu said the crime investigator had estimated that the height of the shooter might be 1.8 metres, adding that the accused person had also told the court that his height was 1.8 metres.

As the case would be determined on circumstantial evidence, the state urged the court to analyse their evidence in its totality as it would ensure that the pieces of the puzzle fitted.

He said evidence presented had revealed that the accused was in dire need of a firearm even though it was never proven that he was in any form of danger.

Mr Ndlovu said the state had provided enough evidence and that the evidence presented by the accused was nothing but a lie. He said the state's evidence would show the accused as the perpetrator.

He said the state had taken the court through the acquisition of the gun by the accused which was used to murder Montshiwa, establishing that Modise was scheduled to meet the deceased on the night of his death as well as placing him in the vicinity of the deceased’s house as well as where the gun was dumped.

The defence attorney, Mr Ofentse Khumomotse said one of the state witnesses, who was the deceased’s neighbour was alerted to the circumstances alleged to have been associated with the shooting by dogs barking and upon enquiring what was happening, what sounded like gun shots followed. He said subsequently the witness saw a VW car speeding away, but could not make its colour and registration number.

Mr Khumomotse said what was being done was to advance the prosecution’s case. He said it was clear that since the shooting was a dramatic scene, it would be reasonable to state that none of the witnesses was not able to tell the colour of the car.

He said the accused was never associated with a red VW car and that the gun was not even retrieved from the accused and as such a fair judgement that was to be made by the court was to acquit the accused.

Mr Khumomotse added that part of the evidence that was presented was that the gun that was found at BOBS in a trench was said to have a missing part whereas the one presented before court was intact.

He said the state did not record statements from all the officers who were assigned custody of the gun that was allegedly found at BOBS, and that the integrity of such an exhibit was questionable making it difficult to admit it as part of the evidence as it was not properly handled.

Mr Khumomotse also said the weapon was examined by a ballistic expert 20 months from the day it was found. He said the case must be dismissed purely on the fact that the chain of custody of the gun was never documented.

If the gun that was said to have been used in the crime has doubt in terms of chain of custody, Mr Khumomotse argued,  such evidence could not warrant a conviction. Ends