Boitshwarelo Tau, who is accused of the murder of her boyfriend, will continue with her trial scheduled for July 27-28, 2015 after the Chief Justice Maruping Dibotelo recently ruled that her defence lawyer did not adduce convincing reasons as to why her confession statement should not be admitted before court.
A lawyer representing Tau had challenged the court on whether it is constitutional for District Commissioners (DCs) and District Officers (Dos) to be appointed Judicial Officers who could among others record confession statements from accused.
Mr Gabriel Kanjabanga had filed an application to object the production of a confession statement commissioned by Mr Kabelo Tshekiso, who was a District Officer based in Kanye at the time of the perpetration of the offense.
In his evidence in chief, Mr Tshekiso had noted that he is a district officer based in Tutume sub-district and his job among other things entails taking down confession statements as judicial officer. He further confirmed having noted a confession from Tau.
However Mr Ganjabanga submitted that the accused’s objection is that whilst Section 8(3) of Magistrate Court Act enables the President of the republic to appoint District Officers, many of whom have no training in law, as judicial officers, they are for all intends and purposes not judicial officers and therefore a confession noted by them does not comply with the requirement of the accused’s rights to a fair trial under Section 10(i) of the Constitution.
He further submitted that if the confession is admitted in evidence, its admissibility would be a gross case of prejudice, injustice and breach of the accused’s rights to a fair trial, moreso that it was taken by a person without the professional competence to be appointed a judicial officer.
Kanjabanga said the admissibility into evidence of the confession should be checked and tested against its consistency and/or compliance with the constitutional rights of the accused.
He said if its admissibility is such that it results in accused person’s right to fair trial being violated then the confession recorded does not stand constitutional muster and should be refused.
In addition he told the court that the right to a fair trial broadly extends and covers the fact that evidence which ought to be used as against an accused person should be fairly obtained and should not be such its admissibility during trial would result in the accused having an unfair hearing or trial and would cause him gross injustice.
“It is submitted therefor that as far as Section 8(3) of the Magistrate Court Act allow the appointment of District Officers as judicial officers notwithstanding that they do not have the requisite professional qualification to discharge such functions, then the said provision is illegal, null and void in so far as it is inconsistent with Section 10(1) of the Constitution which require accused persons to be afforded a fair trial and the latter would mean that those who discharge judicial duties or functions either adjudicative or as witnesses as it is the case herein under Section 8 of the Magistrate Court Act , they should have professional competence, ability and know-how of discharging such functions, otherwise any person who discharges such duties without the appropriate professional training especially in criminal trial is bound to cause violation of the right to a fair trial of those who are subject to a criminal trial”, he submitted.
In her submission in opposition to objection to admission of the confession statement, the prosecutor from the Directorate of Public Prosecutions (DPP) Ms Sally Boitumelo said the succeeding submissions are made premised on the basis that the defence does not dispute or challenge satisfaction of the test of admissibility with regard to the confession in question.
She said the defence contention that the confession was made before a person without legal qualifications and therefore inadmissible as being in violation of Section 10(1) of the Constitution relating to the right to a fair trial enjoyed by a person accused of a criminal offense, missed the point that unlike with regard to Judges of the High Court and the Court of Appeal the Constitution at Section 104 which gives the President power to appoint magistrates does not lay down required qualifications.
Ms Boitumelo therefore said there is nothing unconstitutional about Section 8(3) of the magistrate Act and that by not laying down the qualifications for appointment of magistrates the Constitution was in any way making allowance for the possibility of appointment of magistrates without legal qualifications.
She therefore submitted that once it is established that a confession complies with the requirements of Section 228(1) such confession is admissible without more whether or not the judicial officer before whom it was made holds legal qualifications.
Ms Boitumelo further submitted that the objection to admission of the confession without demonstrating how unfairness in the trial of the accused will ensue is without substance and deserves to be overruled. How the confession in question amounts to evidence obtained unfairly is equally not demonstrated.
She therefore said taking down a confession in accordance with the existing guidelines is not something beyond the capabilities of a district officer appointed as a magistrate “with the advice of the Judicial Service Commission”.
In his ruling Judge Dibotelo wholly concurred with Ms Boitumelo that the defence lawyer did not demonstrate how the admission of the confession statement will prejudice the accused as all the requirements were followed moreso that the accused willingly gave the confession. The prosecution intends to call four more witnesses.
Tau stands accused for the murder of Sinki Phuthego, in Mahotshwane settlement near Mabutsane, after hitting him three times with two stones on his head on August 27, 2015 and died two months later on October 08, 2011 at Princess Marina Hospital (PMH) where he was hospitalised. She was subsequently detained at Mabutsane Police Station for three days before coming for confession at the district commissioner’s offices.
The 28-year-old Tau has since pleaded not guilty to a charge of murder and has been on bail since. Her confession statement which was made in Setswana and translated into English indicates that she came voluntarily and she was never beaten nor injured by police during her three-day-detention.
Source : BOPA