Maseru __ The prosecution through Advocate Motene Rafoneke has on Wednesday told the Court of Appeal that culpable homicide is a competent conviction for businessman Tseliso Nthane who was in 2022 acquitted of murder by the High Court. 

Nthane was accused of killing his employee Kopang Mohapi at Moteng in January 2019. Evidence was that the accused had an argument with the deceased who was involved in an accident while transporting some machinery. It was stated that the accused fired a gunshot in the air to scare away people whom he thought were attacking him. It was stated that a ricocheting bullet which was found deformed in the body of the deceased caused his death.  

When addressing the court in an appeal instituted by the Director of Public Prosecutions (DPP), Adv. Rafoneke stated that there was no evidence to warrant that the charge of murder be upheld therefore the court should have found the accused guilty of culpable homicide. 

He argued that a second state witness who testified before the high court should be recalled so that he could be asked the questions which the prosecution intended to ask him. He said the witness gave evidence which was different from what he said in his statement made before the police. He indicated that he had not yet demonstrated hostility therefore the prosecution could not apply that he be declared a hostile witness. 

Adv. Rafoneke argued that the High Court was wrong when it ruled that the prosecution was trying to cross-examine the witness thus denying them to lead the witness about the statement. He said the prosecution needed to reconcile the evidence made before court and the one in the statement. He pointed out that there were more facts in the statement which needed to be revealed to the court which might have changed the final decision of the court which was to discharge the accused. 

He asked the court to allow the appeal and set aside the order of the High Court. 

Legal Representative for the respondent in the appeal who was the accused before the High Court, Adv. Motiea Teele told the Court of Appeal that the prosecution who bore the onus to make a case against the accused, put little effort in establishing the prima facie case. He argued that the prosecution should have established that murder was forceable and pursued the question of negligence. He added that they also failed to establish the prima facie case of culpable homicide.  

He further argued that the prosecution protected the witness whom they are complaining about, from being declared hostile. He added that they protected his credibility and saved him from a difficult cross-examination in which the credibility was going to be tested. He stated that there was no need for the prosecution to reconcile the statement of the witness and his evidence before court. He pointed out that they would reconcile where the merits of their case would be advanced. 

Adv. Teele emphasised that the court should not be asked to speculate in favour of the prosecution. He insisted that the High Court was not misdirected in discharging the accused. He therefore asked the Court of Appeal to dismiss the appeal. 

The Court of Appeal is expected to deliver judgment in this matter on November 01 2024.