On Tuesday morning, Tsholofelo Maselwa walked into the Gaborone Court of Appeal (CoA) a desperate man, his life hanging in the balance.
He had been sentenced to death last year, after being found guilty of the murder of 70-year-old Chifana Ndaya in Zwenshambe village on 19 April 2009.
The sweat that trickled slowly down the convicted killer’s anxious face had little to do with the intense summer heat.
A few hours later and Maselwa emerged into the January sunshine a free man, having been acquitted by the CoA.
The court ruled that his guilt had not been established beyond reasonable doubt and ordered Maselwa’s immediate release – a judgement the state did not oppose.
During the successful appeal, Maselwa’s lawyer, Mishingo Jeremiah argued that the police may have planted evidence connecting his client to the crime.
“Not only did they force a confession statement from him but they also somehow forgot to seal the most critical piece of evidence they say they seized from the then accused.
“The police say they seized from him a trouser which had blood stains that partially matched that of the victim. In this case we do not know what the expert meant by the blood partially matched that of the deceased, it could be that it did or did not match that of the victim.
“When they seized the three items: a trouser, shirt and jacket, they conveniently forgot to seal the packet that had the trouser which was the only one which came back (from the forensic lab) with results from the lab. There was also nothing to corroborate the police finding that they took the trouser from the accused because there was no independent witness. There is no real evidence that the trouser belonged or came from the accused,” Jermiah said.
Detailed reasons why the CoA bench decided to acquit Maselwa will be delivered on February 2.
Facts of the original case are that Ndaya was found beaten to death in his hut.
Police discovered a metal rod and stone, both soiled red with blood, at the crime scene.