10 Feb 2014

The Court of Appeal sitting in Gaborone has discharged and acquitted Thatayaone Malebye for the murder of Tshoganetso Plotz, a Botswana Defence Force (BDF) soldier based at Area S Barracks in Francistown in 2008.

However, his two co-accused, Khumbulani Matapa and Bashangani Boapotswe, who had also appealed their conviction and 10 years sentence, remained behind bars because their appeals were dismissed.

In their judgement, a panel of three judges led by Justice Isaac Lesetedi, assisted by Lord Cameron Abernathy and Justice Alijah Legwaila, came to a conclusion that nothing connected Malebye to the offence.

“The result of this appeal is that the conviction of Malebye cannot stand and is set aside. In respect of Matapa and Boapotswe, their appeal is unsuccessful”, said Justice Lesetedi when delivering judgement.

Accepting Malebye’s appeal, Justice Lesetedi said the general conduct of the prosecution left a lot to be desired as the prosecution did not even seem to know which questions to ask witnesses, let alone the essential evidence which the prosecution intended to place before the court to prove its case.

He said the incriminating evidence against Malebye was a cellphone which he had in his possession on the morning after the murder, adding that this cellphone was given various descriptions by state witnesses.  

“The appellant’s girlfriend described it as a Nokia 1200 and denied that it was the phone which was exhibited in court. On the other hand, the Nokia exhibited was a Nokia 1600. The girlfriend alleged to have bought the cellphone from unknown people and that there was no credible evidence that the girlfriend bought the cellphone from any of the appellants”, he added.

Justice Lesetedi further said none of the state witnesses attempted to identify the phone seized by the police by the inscription of the deceased’s name adding that Malebye’s story was that the Nokia was stolen by him at one of the bars where they had gone for drinking and that in light of the confusion, this explanation could be reasonable be possibly true.

“In the absence of any other acceptable evidence incriminating Malebye, it was improper and misdirection for the trial court to convict him,” he said.

Plotz was set upon by the assailants on the street in Monarch, Francistown on October 25, 2008 after being inflicted with several stab wounds and shortly succumbed thereafter to the wounds.

The deceased was found lying on the road with his shoes missing and whoever, the assailants were, they were most likely were the persons who took them. His cellphone, a Nokia 1600 inscribed with his name, was also missing. Within the next few days, Malebye, Matapa and Boapotswe were arrested separately and charged with murder.

Matapa was arrested around two days and upon searching him, the police seized a pair of jeans which Matapa had been putting on the night of which the deceased was killed. One of the legs of the jean trousers had a blood stain and a subsequent scientific DNA tested found the DNA of the stain to match that of the deceased.

The deceased’s shoes were found in a plastic bag on top of the roof in the yard occupied by Boapotswe. Turning to Malebye, the incriminating evidence was a Nokia cellphone he had in his possession on the morning after the murder.

He gave this cellphone to his girlfriend which was later collected by his co-accused from the girlfriend accompanied by a certain Rogers before selling the phone the same day and split the spoils between themselves.

The same cellphone was later seized from a woman whom the investigators pointed out that Matapa and Boapotswe were the purchaser which led to the arrest of Malebye. However, in her testimony, the woman gave evidence inconsistent with what transpired. 

The three were sentenced to a minimum of 10 years imprisonment by Francistown High Court Judge Modiri Letsididi, who exercised the quality of mercy citing their youthfulness and the fact that they were drunk as extenuating circumstances. ENDS