• trial lasts just three days, third witness not even called to testify,
• judge says prosecution “dismally” failed to prove its case.

Moorosi Tsiane

BUSINESS mogul Tšeliso Nthane, who was accused of murdering his truck driver, Kopang Mohapi, has walked free.

He was acquitted on Friday on the grounds that the state had failed to prove beyond any reasonable doubt that he had murdered Mr Mohapi on 10 January 2019.

His acquittal by acting judge, Palesa Rantara, owes more to the incompetence of the prosecution rather than any exceptional work and robust defence by his lawyers.

Mr Nthane’s was a highly-anticipated and much-delayed trial.

It began on Wednesday and unlike most murder trials which are long-drawn-out, this one only lasted three days. The prosecution, led by Advocate Motene Rafoneke, called in two witnesses, Motiki Mokatse and Moeketsi Motsamai, who testified on Wednesday and Thursday respectively. Neither of the witnesses’ testimony was helpful to the prosecution’s case as they both testified that they did not actually see Mr Nthane pull the trigger and shoot Mr Mohapi dead.

A third witness had been lined up to testify but, in the end, Adv Rafoneke elected not to call him. In the prosecutor’s own words to the court, he had decided to drop the third witness after realising that his testimony would be “of no use to the case”.

With such a weak case and without any forensic reports from the investigation being presented to the court, Mr Nthane’s defence, spearheaded by Adv Motiea Teele, had the easiest of tasks of poking holes into the state case. Adv Teele wasted no time in applying for the discharge of his client on the grounds that the state had failed to prove its case.

Justice Rantara did not even have to sleep over whether or not to grant the application. She adjourned proceedings at about 11am and 3pm she reconvened the court and granted the application.

She concurred with Adv Teele that the state had indeed failed to prove its case.

Mr Nthane’s business empire spans the construction, property development and other sectors. He had been charged with the murder of Mr Mohapi who he was alleged to have shot and killed on 10 January 2019 at ‘Moteng Pass.

Mr Mohapi had been involved in a road accident at the Moteng Pass about 171 kilometres from Maseru while transporting construction machinery to Polihali in Mokhotlong for the Nthane Brothers company, which had just been awarded a M235 million road construction tender for the second phase of the Lesotho Highlands Water Project (LHWP).

After the shooting, Mr Nthane handed himself over to the Butha-Buthe police station where a murder charge was preferred against him. Chief Justice Sakoane Sakoane, who was then an ordinary High Court judge, presided over Mr Nthane’s bail application in January 2019 and released him on M5000 bail. His bail conditions were that he reports to the Butha-Buthe police on set dates, he refrains from interfering with Crown witnesses and stands trial to finality.

Since that time, the trial had inexplicably failed to take off until Wednesday.

From the first day of the proceedings to the last, Mr Nthane looked dapper in the dock, wearing black jacket and khaki trousers.

When the trial got underway on Wednesday, the first witness, Mokatse, took to the stand and narrated what happened on that fateful day.

Mr Mokatse, who is employed as a truck driver, said prior to the incident, Messrs Nthane and Mohapi had been involved in a heated argument. However, he did not say who actually fired the gun that killed Mr Mohapi as he moved away from them and only returned a short while after the latter had already been shot at.

On Thursday, Motsamai, who is also employed as driver by Mr Nthane, took to the stand. Just like Mr Mokatse the day before, he too did not say who had actually pulled the trigger and killed Mr Mohapi.

The court adjourned on Thursday with the expectation that an unnamed third witness would testify the following morning.

However, on Friday morning, Adv Rafoneke told Justice Rantara that the witness was no longer going to testify because his testimony would not help the state case.

Thereafter, Adv Teele pleaded with the judge to discharge Mr Nthane on the grounds that the state had failed to present any evidence to sustain the murder charge against his client.

According to the charge sheet, Mr Nthane was charged with an “unlawful act or omission or contravening  section 40(1) of Penal Code Act No. 6 of 2010”.

Titled: Murder and Extenuating Circumstances, section 40(1) of Penal Code states that, “Any person who performs any unlawful act or omission with the intention of causing the death of another person, commits the offence of murder if such death results from his or her act or omission”.

Section 40 (2) of the same Code states that, “the punishment on conviction for murder shall be a sentence of death”.

Mr Nthane had pleaded not guilty when the charge was read to him on Wednesday.

In applying for Mr Nthane’s discharge, Adv Teele said, “My Lady, the charge sheet does not really say what act or omission the accused did.

“We had hoped that this would be addressed by the Crown when leading its witnesses but that did not happen. Therefore, it is still not clear what my client is really accused of.

“The court still remains in the dark as to what really transpired. You are being asked to guess the guiltiness of the accused and that is not the court’s job. There were many people gathered there (at the alleged crime scene) but the Crown failed to get independent witnesses from those people.

“Both witnesses called before the court did not testify that they saw the accused shoot the deceased. Therefore, the Crown has insufficient evidence to sustain their charge and we are therefore applying for discharge. There is no reasonable evidence and I ask that my client be acquitted of this case,” Adv Teele argued.

Adv Rafoneke opposed the application arguing that both witnesses had testified that they heard a gunshot and the postmortem indicated that Mr Mohapi had indeed been killed by a bullet from Mr Nthane’s pistol.

“Our submission is that it is beyond reasonable doubt that an offence was committed and the accused needs to be trialed. There are witnesses who heard a gunshot and a postmortem proving that the deceased was killed by the accused’s pistol,” Adv Rafoneke submitted.

The Friday proceedings had started at 9.30am and Justice Rantara adjourned them at 11am to give herself time to decide on the application.

She reconvened the court session at 3pm whereupon she read out the acquittal verdict.

Explaining her decision, Justice Rantara said that none of the Crown witnesses had testified that they saw Mr Nthane shoot Mr Mohapi.

Even though it was undisputed that the bullet that killed Mr Mohapi had been fired from Mr Nthane’s gun, there was no evidence that the latter had intentionally or negligently shot him.

The Crown also failed to call the investigating officer or a ballistics expert to explain their findings, the judge said.

Therefore, the Crown had failed to make out a case before the court, she said.

“At the end of the prosecution’s case, the defence counsel applied for discharge in terms of section 175 of the Criminal Procedure and Evidence Act, 1991,” Justice Rantara said.

“The section provides that, if, at the close of the prosecution’s case, the court considers that there is no evidence that the accused committed the offence in the charge sheet or any other offence of which he might be convicted thereon, the court may return the verdict of not guilty.

“This section has been interpreted in a plethora of cases. It is trite that no evidence does not mean no evidence at all, but evidence upon which a reasonable court may convict the accused. The accused is charged with murder which is defined as the unlawful and intentional killing of a human being. The test at this stage of the proceedings as laid down in several cases is whether there is prima facie (at first sight) case for the accused to answer. The essential element of murder is that a killing must be unlawful and not done in the execution of any lawful authorisation and it must be intentional. Therefore, in a charge of murder, the Crown has to present prima facie evidence that satisfies all these essential elements of murder and that it was committed by the accused.

“The defence counsel submitted that none of the witnesses testified that the accused shot the deceased. The post-mortem report recorded that the doctor was informed that the deceased was shot by accident and a deformed bullet removed by the doctor from the deceased’s body. There is no evidence proving intention and negligence presented by the Crown,” Justice Rantara said.

She also noted that no evidence had been presented to show that anyone had seen Mr Nthane shoot Mr Mohapi. Nor had a sketch of the crime scene been presented to the court by the prosecution, she said.

“The defence further pointed out the defects from the investigation up to the prosecution of this case. For example, there were no independent witnesses presented even though the evidence had said there were many people gathered when the incident occurred. The Crown did not give direction to the investigating officers to fill the gaps in their investigations but decided to proceed with charging the accused with murder. There is no sketch made by the investigating officer about the scene of crime,” She said.

“The defence had hoped such defects would be cured by evidence led in terms of section 158 of Criminal Procedure and Evidence Act. However, such evidence failed to cure the defect that the accused intentionally or unlawfully or negligently killed the deceased,” Justice Rantara said.

She said although it was clear that the deceased was killed by the accused’s pistol, the Crown had failed to make the case for the accused to answer and therefore the application for discharge was granted.

“What is clear before this court is that deceased was killed by a bullet shot from the accused’s firearm. In analysing these submissions guided by section 175(3) of Criminal Procedure and Evidence Act, the court finds that the Crown failed dismally to make a case for the accused to answer. It is common cause that the two witnesses called by the Crown, despite evidence that there were many people gathered there, did not testify that they saw the accused shooting at the deceased. It is also common cause that the accused after the incident, handed himself to police and it automatically follows that he explained what had transpired. What was expected was for the investigation to follow on his explanation to prove or disprove his veracity.

“The accused’s explanation is that he fired a warning shot to waive off a foreseeable threat towards him by those people who were gathered there, and some of them were even picking stones and accidentally the bullet hit a hard surface and reverted to deceased. However, there was no sketch of the scene of crime as to what or which hard surface the bullet hit before hitting the deceased. The post-mortem conducted on 16 January 2019 shows that a deformed bullet was removed from the deceased having damaged soft parts of his body, and explanation given to the doctor was that the shooting was accidental.

“There is no forensic evidence of what could have deformed the bullet exhibited except the hard surface that the accused alleged the bullet hit first before it reverted back to the deceased. The ballistic report recorded that only one fired bullet was presented on 21 January 2019 and it was said the bullet was found at scene of the crime not from the deceased’s body. The ballistic expect was not called to clarify that.

“As presented by Crown, it is common cause that the bullet that killed the deceased was fired from accused’s pistol. However, there is no prima facie evidence before the court that the firing was done with the intention to kill the deceased, or that the accused was negligent as a reasonable man of his status would have foreseen that the said bullet could have reverted to the deceased.

“The shooting of the deceased by the accused under the circumstances is not enough to say a crime was committed as long as the issue of intention and negligence have not been proved.

“The ambiguity in the charge sheet made by the prosecution does not inform especially in the charge of murder as to what act or omission the accused did. It is important for the court to know what act or omission the accused did. In the result the application for discharge is granted and the accused is acquitted,” Justice Rantara said.

There was silence after the ruling. Mr Nthane’s family, who had come to support him, appeared relieved.

A visibly emotional Mr Nthane declined to be interviewed by this publication, saying the case had taken its toll on him and he was not in the right state to talk.

“I’m not in the right frame of mind to talk about what happened,” said Mr Nthane as he took off his spectacles to wipe off the tears which were cascading down his cheeks.