24 Jun 2023

Gaborone High Court has acquitted and discharged Modise David from the 2015 murder of Michael Montshiwa.

Montshiwa, who was Chief Executive Officer of Fairgrounds Holdings was gunned down at his residence in Block 6, Gaborone in October 2015 by what is now unknown assailants.

Initially, David was charged alongside Tumelo Tshukudu who was discharged and acquitted earlier this year at the end of the state case, hence leaving David as the sole suspect.

Throughout the trial, both the prosecution and the defence had conceded that the case hinged on circumstantial evidence.

“To convict on circumstantial evidence, the facts must line up like wagons of a locomotive. I find that the state’s evidence does not line up and the guilt of the first accused has not been established beyond any reasonable doubt,” said Dr Zein Kebonang in his judgment, acquitting and discharging David.

Dr Kebonang among others faulted the state for failing to ensure safeguarding of the gun which was said to have been used in the murder incident.

He said the defence submitted that the gun tendered as evidence could not be submitted as such because there was no independent and verifiable evidence that it was the same gun that was retrieved from a trench in Block 8 near Botswana Bureau of Standard (BOBS) premises.

He faulted lack of evidence on the chain of custody of the gun, from its point of discovery and recovery, transportation for examination and its presentation to the court, saying there was nothing to prove it was the same gun the accused person acquired.

Justice Kebonang said it was an obligation for the prosecution to establish the chain of custody, adding that chain of custody was the most crucial process of evidence documentation.

Furthermore, he said there was nothing to refute the accused person’s claim that he gave the gun in question to the late Abbo Khwarae days before the incident.

He further said the defence accused the state of embarking on a malicious prosecution and seeking conviction at all costs by not calling material witnesses, among them a state witness who said he saw a light skinned person running from the crime scene.

Dr Kebonang said though the prosecution had discretion to call witnesses, the suppression of evidence favourable to an accused person violated due processes. No explanation was given to the court as to why such witness was not called, Justice Kebonang noted.

“While the Director of Public Prosecution is constitutionally enjoined to prosecute criminal cases, her interest should not be to win a case but only ensure that justice is done,” he added.

Further, Justice Dr Kebonang said one state crime scene witness said he saw a red VW hatchback while other witnesses said David was driving a black VW Golf on the day.

He said the prosecution never put it to the witness that he could have mistaken the colour of the vehicle.

He further said there was nothing to suggest that the witness’ view was distorted, adding that if it was a red vehicle, it excluded the accused.

Regarding call logs which were provided as evidence of communication between the deceased and David on the day, Justice Kebonang said the records did not put David at the crime scene nor at BOBS, where the gun was discovered, adding that the state case was not also helped by lack of finger prints on the gun.

David who was Montshiwa’s lawyer was earlier this year acquitted and discharged of a charge of stealing by servant, in which he was accused of stealing money belonging to the late Montshiwa, which the state had argued created a motive for the murder. Ends