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Prosecution again in clumsy showing

…as court acquits Nthane  

Mohloai Mpesi

The prosecution was once again schooled as it put up a fable showing in a murder trial to the effect that the accused person was acquitted further casting doubt on the Director for Public Prosecutions (DPP) Advocate Hlalefang Motinyane’s team’s competency in prosecuting murder trials.  

Last Friday Magistrate Palesa Rantara was impelled to acquit renowned business tycoon Tšeliso Nthane who was accused for the murder of his truck driver Kopang Mohapi on January 10, 2019 due to poor evidence delivery by the prosecution.

Nthane was accused for the murder of the driver who was involved in a road accident at the Moteng pass (171.2 kilometers from Maseru) while transporting construction machinery to Polihali in Mokhotlong for the Nthane Brothers company which was awarded a 16-kilometer road construction tender worth of M235million for the second phase of the Lesotho Highlands Water Project (LHWP).

The ruling comes after the prosecution’s witnesses testified last week led by advocate Motene Rafoneke for the prosecution before advocate Motia Teele KC for the defence applied for application for discharge, which was granted.  

Teele filed the application in accordance with section 75 (3) of the Criminal Procedure and Evidence Act No.9 of 1981 which provides that if at the close of the case for the prosecution, the court considers that there is no evidence that the accused permitted the offence charged in the charge or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty.

According to Magistrate Rantara who was roped by the High Court to co-preside over the 35 criminal matters along with the retired Justice Semapo Peete and Tšabo Matooane KC, “…this section is interpreted in the plethora of cases and it is tried that no evidence does not mean no evidence at all but evidence upon which a reasonable court may convict whether accused opted to lead his evidence or not.”

She said Nthane was charged with murder which is defined as unlawful and intentional killing of a human being, quizzing whether there is prima-facie case for the accused to answer.

In support of the discharge application Teele KC submitted that none of the witnesses that testified before court testified that accused had shot the deceased.

He said the post-mortem report documented that the doctor was informed that the deceased was shot by accident and that a deformed bullet was removed by the doctor from the deceased’s body.

“There is no evidence proving intention or negligence presented by the crown evidence. There is no sketch made by the investigating officer about the scene of crime.” The discharge reads.

He further pointed out flaws from the investigation up to the prosecution that no other independent witness as the evidence says there were many people gathered when the incident occurred.

“On the basis of evidence the crown was seized without giving direction to the investigating officers to fill the gaps in their investigation, decided to proceed with charging the accused with murder,” Teele said.

Meanwhile, in an attempt to oppose the application, Rafoneke had submitted that the case was at a stage where the court has to determine whether an offence was committed by the accused person, other than proving beyond reasonable doubt that it was done intentionally or through negligence,

“What is clear before court is that the deceased was killed by a bullet, shot from accused’s firearm,” Rafoneke said.

However, Rantara said while analysing the submissions and evidence before court as directed by section 175 (3) of the Criminal Procedure and Evidence Act, the court finds that the crown dismally failed to make a case for the accused to answer.

Earlier this week Chief Justice Sakoane Sakoane pointed out that according to the law, the bench will be propelled to acquit suspects when the prosecution presents poor evidence before court. Sakoane said this at the official opening of the validation workshop on needs assessment for civil stream procedures for case management system and strategic plan development for judiciary in Lesotho.   

“Without an efficient, professional police service there is no judicial system. As we deliberate in the coming two days it is very important to understand the context within which we operate.

“We have the police and they are the first point of entry, then we have the prosecution … and if the prosecutors don’t do their job very well we are duty bound to acquit people.

“We know that members of the public don’t make a difference between the prosecution and the court sometimes; they believe that once a person is charged or brought to court the responsibility that that person is found guilty is judicial officers’, but the contrary is true, we only follow facts and evidence and if the quality of evidence is poor the law says that we should acquit, it’s not a matter of choice we have to do that.

“So it is very important that we have efficient investigators, efficient prosecutors and knowledgeable judicial officers who are efficient, not lazy, who don’t come to work late, who can read their law and update their knowledge. This is a very demanding task on the bench,” he said.

Nthane’s contention has been that the deceased had been fatally hit by a bullet from his gun when it accidentally self-discharged, a theory that had been challenged by the prosecution as incredible although proving stance in court had been a challenge as Rantara said.

Chief Justice Sakoane has in latter time been, been on about the DPP putting a deplorable show in court in a show of utter ineptness due to bad application of the law resulting from incompetence.

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