…as Court of Appeal dismisses his application
Moorosi Tsiane
DOUBLE murder convict Habofanoe Ntsie’s bid to overturn his convictions and secure an early release from prison suffered a major setback on Friday after the Court of Appeal dismissed his application.
Ntsie, who was convicted in 2012 of murdering Souru Masupha and Habaka Mahao, had approached the apex court seeking to overturn the High Court decision that sentenced him to lengthy prison terms.
In February 2023, he was sentenced to concurrent prison terms of 20 and 21 years for the two murders.
Among other grounds, his latest challenge was based on the argument that Justice Maseforo Mahase should have recused herself from his trial because of her previous involvement in a dispute between him and one of the deceased.
Through his lawyer, Advocate Letuka Molati, Ntsie argued that Justice Mahase, while still a magistrate, had mediated a dispute between him and Masupha. He contended that she should have been called as a witness in the murder trial, raising questions about her impartiality in presiding over the case.
However, the Court of Appeal found no merit in the application and dismissed it.
Court of Appeal President Justice Kananelo Mosito, sitting with Justices Johann van der Westhuizen and Realeboha Mathaba, delivered the order, with the full reasons expected to be made available later.
The dismissal followed a spirited challenge by Adv Molati to the evidence underpinning Ntsie’s convictions, particularly the ballistic investigations into the firearms allegedly used in the murders.
He questioned why two separate documents relating to investigations into the same firearm had been produced, one dated 20 December 2004 and another dated 22 September 2009.
“My lords, I would like to take the court through the document which was submitted as exhibit G in the High Court. It is a document on the investigation of the gun used in the commission of the crime. It bears a date of 20 December 2004, but there is also another document talking about the same thing which bears the date of 22 September 2009. The question is, why should there be another investigation about the same gun five years later?” Adv Molati asked.
He argued that the apparent discrepancy cast doubt on the credibility of the ballistic evidence presented during the trial.
According to him, the expert witness had initially indicated that the firearm used to shoot the deceased was found in their vehicle, but later produced a report identifying the firearm that killed them as belonging to Ntsie.
Adv Molati alleged that the investigating officer had instructed the expert to prepare another report, suggesting that the subsequent findings had been altered to implicate his client.
“My lords, I submit that it is somebody else who killed the two deceased because the examiner said it was their (the deceased’s) gun that killed the deceased, and later he was told to change his report by the investigating officer,” he argued.
While challenging the ballistic findings, Adv Molati conceded that Ntsie had shot the deceased but maintained that he had acted in self-defence.
He relied on testimony from a defence witness who had allegedly told the High Court that Masupha had previously threatened to drink Ntsie’s blood, which the defence presented as evidence of hostility between the two.
“The appellant shot twice and he acted in self-defence as he was under attack by Masupha, who had previously told his companion that there is a devil that he wants to go and drink his blood, referring to my client,” Adv Molati submitted.
He further argued that Ntsie had left the scene after firing two shots and surrendered himself to the police, suggesting that another person could have subsequently killed the two men.
“So the appellant only fired two shots and it is evident that there was somebody else who came and finished them off after he had left, handing himself to the police. There is cumulative evidence that Masupha was aggressive towards the appellant and he had no other option but to defend himself,” he said.
The defence also questioned the police handling of the crime scene, alleging that officers had failed to preserve it and instead destroyed evidence that could have helped establish what had happened.
“But the other issue is that this record before the court is the reconstructed record because the police, instead of preserving the crime scene, rather destroyed it,” Adv Molati said.
He also criticised the prosecution for failing to call the pathologist who conducted the post-mortem examinations to testify during the trial. He argued that the medical report should not have been admitted without its author being called to explain the findings.
“I wish to submit on the law, my lords, that it was improper that the pathologist was not called in to testify in the trial. Instead, he submitted the report only,” he argued.
Adv Molati further challenged the High Court’s decision to reject audio recordings Ntsie had sought to introduce as evidence. He maintained that the recordings should have been considered like any other evidence and that Justice Mahase had erred in declaring them inadmissible.
However, the Crown strongly opposed the application, maintaining that the High Court judgment contained no misdirection warranting the intervention of the Court of Appeal.
Advocate Lehlanako Mofilikoane, representing the Crown, urged the court to uphold the convictions, arguing that the defence had concentrated largely on Masupha’s murder while failing to adequately address the second murder involving Mahao.
“My lords, I submit that the High Court judgment should be confirmed by this court because there is no misdirection in it. The order issued for the court to take into consideration is that there are two counts of murder in this matter, and Adv Molati has only been talking about the murder of Masupha only,” she said.
Adv Mofilikoane maintained that eyewitness testimony had placed Ntsie at the centre of the killings. She alleged that he had pursued the deceased after their vehicle fell into a ditch as they attempted to flee from him following an alleged road obstruction.
She told the court that Ntsie had approached their vehicle and opened fire repeatedly before leaving the two men at the scene.
“The accused alerted his car and went straight to the car of the deceased, shot at them for about eight times as per the eyewitness evidence, and he thereafter left them there,” she submitted.
The Crown also defended the exclusion of the audio recordings, arguing that Ntsie had admitted to tampering with the evidence by editing the recordings himself.
In delivering the order on Friday, Justice Mosito said the appeal had been dismissed and that the court’s reasons would be contained in a written judgment to be made available later.