The Voice (Francistown)
Moreri Moesi
6 May 2008
Lobatse — The Court of Appeal has set aside Edward Mzwinila's conviction and sentence of 10 years imprisonment for armed robbery because there is a reasonable possibility of mistaken identity connecting him to the crime.
Mzwinila was convicted of an armed robbery in Tlokweng committed on 31 October 2002 by a lower court. He was found guilty of robbing Subhabash Arora P41 000, R30 and a diamond ring worth P4 000.
He was also convicted of robbing Sunil Sharma a diamond ring worth P2 000 and P600 in cash at Pula Sales Diary Ice Cream in Tlokweng.
Setting aside the conviction and sentence last week, the Court of Appeal said there is a possibility that the key state witness, Ms Handy Thebe, was mistaken when she said she saw Mzwinila at the crime scene.
In her evidence at the trial, Ms Thebe had insisted that she had positively and correctly identified Mzwinila as one of the robbers as they knew each other well since they attended the same school in 1996.
The Court of Appeal, however, said Mzwinila's guilt was not proved beyond 'all reasonable doubt.' The court accepted Mzwinila's alibi, which was supported by an endorsement on his passport that showed he was in South Africa on the day, and the evidence of his key witness Lesego Poonyane.
The stamp on his passport showed that he left Botswana through the Ramatlabama Border Post on 31st October 2002 and returned on the 3rd November.
Poonyane had stated that she had telephoned Mzwinila on the day in question at approximately 11:00 am, and that he said he was in Mafikeng.
"If the appellant was in Mafikeng at 11:00 am he could not have been at the scene of the crime at 12:00 noon," said the court in its judgment.
Regarding the assertion from the trial magistrate that Mzwinila should have called his witnesses from South Africa, the Court of Appeal said there was no onus on him to prove his alibi.
It said the onus was in fact on the state to prove that Mzwinila was indeed at the crime scene and had committed the offence.
Mzwinila had always maintained that he was outside the country when that crime was committed.
Attorney Diba Diba represented Mzwinila while the state was represented by Priscilla Israel.
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