- Orange Botswana evidence rejected
- Affidavit of ballistics expert excluded
- Gun and bullet will not be exhibited
- Affidavits of Mascom Wireless and BPS admitted
In a rather strange turn of events in the deceased Fairground Holdings CEO Michael Montshiwa’s case, the state’s bid to have a ballistic report and computer printouts from telecom provider Orange Botswana admitted as evidence has been rejected by the court, The Business Weekly & Review has established.
The outcome of the ruling on the preliminary arguments on admission of evidence delivered lastweek Thursday by Gaborone High Court Judge, Dr. Zein Kebonang, may spell doom for the state. What it essentially means is that the gun and the bullet that 1st accused David Modise is alleged to have used to carry out the murder will not form part of exhibits in court. Significantly, the ruling, means there is no evidence linking Modise directly to the murder.
In addition to the gun not being exhibited in court, the ballistic report has not been admitted as evidence. The prosecution relied on a report deposed by a certain Admire Mutizwa of Zimbabwe Republic Police (ZPR) as a forensic ballistics expert because investigations led to his country but the defence, led by attorney Ofentse Khumomatlhare, argued that it was irregular and inadmissible because the report was commissioned prior to Mutizwa signing it and was commissioned in his absence. However, the prosecution attributed these flaws to human failure and argued that the report should be admitted as evidence.
Determining the matter, Justice Kebonang ruled that although the Zimbabwe’s justices of the peace and Commissioners of Oaths Act at Chapter 7:09 does not state how an oath should be administered, “a Commissioner of Oath can also not commission an unsigned affidavit”. It emerged in court that the Commissioner of Oaths had commissioned an unsigned affidavit.
Upholding the objection to the ballistic report being used as evidence by the state, similarly, the judge cited an authority by former Acting Judge of Lobatse High Court, Kabelo Lebotse, who formed the view that requirements for a valid affidavit in Botswana are that it has to satisfy Order 13 Rule 5 of the Rules of Court were irregular and unauthentic.
MASCOM AND ORANGE COMPUTER PRINTOUTS
Regarding documents emanating from telecommunications operators, Mascom and Orange, the defence noted that through the Telecommunications Act such evidence needed to be type approved by the Botswana Communications Regulatory Authority (BOCRA) for it to be admitted in court. However, the judge pointed out that the Act was repealed in 2012.
Justice Kebonang ruled that the Mascom affidavit was properly commissioned, saying by the time the Electronic (Records) Evidence Act came into operation, the Botswana Police Service had already obtained the evidence. The judge maintained that as far as evidence from Orange Botswana was concerned, the authenticity of the affidavit was suspect because it did not indicate the date and time it was sworn in save for the date “May 2016.” He ruled that regarding electronic evidence, strict compliance has to be adhered to in order to ensure credibility and evidentiary value of electronic evidence.
Relating to all arguments made, in Justice Kebonang ruled that computer printouts for Mascom Wireless and the affidavit by Botswana Police admitted into evidence but excluded Orange Botswana computer printouts and the affidavit of the ballistics expert. This is a case in which accused persons David Modise and Tumelo Tshukudu are charged with the murder of Montshiwa. Modise also faces a charge of stealing P245 000 belonging to the late Fairground CEO. Montshiwa was killed at his residence in Block 6 in Gaborone in October 2015.