Zimbabwean robber jailed 10 years in Botswana

The Botswana High Court has dismissed an appeal against conviction and sentence by two robbers - a Zimbabwean man and his Motswana accomplice - who threw chilli powder into the eyes of a Chinese businesswoman before robbing her.

Thabo Ngwenya of Zimbabwe and local Elias Macheng, were each sentenced to 10 years in jail in 2019 for robbing Wu Xungsheng of P18 550, plus cellphones and other appliances valued at P49 730 on September 26, 2017 at Letlhakane village.

Ngwenya was given an extra year in jail for entering Botswana illegally at or near Matsiloje village in 2017, but is serving that concurrently with the longer robbery sentence, just about the only concession the trial court made. The High Court has, however, allowed the almost two years the two spent in custody on remand to count towards the 10 years.

The trial court in Letlhakane said it considered the seriousness of the offence when sentencing the pair.

In his appeal Ngwenya unsuccessfully argued the magistrate was biased and relied on the evidence of the cellphone that he and Macheng left at the scene of crime. Ngwenya had opted to remain silent during trial while Macheng gave sworn evidence.

On the other hand, Macheng's ground of appeal was that the trial court erred by holding that the robbed woman was credible when she gave her evidence and Ngwenya felt that using the dropped cellphone as evidence was wrong.

Ms Wu told the court that the robbers came to her house in Letlhakane claiming that they had been sent by the church to do some maintenance works inside. She was reluctant to open the door, but agreed. The pair of robbers then tied her arms and legs and then put chilli powder into her eyes. They then demanded money, Justice Matlhogonolo Phuthego said when dismissing the appeal, noting the two were arrested an hour after robbing Ms Wu.

"The judge said there was no dispute that Ms Wu had been tied and had chilli thrown in her eyes. The only issue in dispute was to identify the assailants. The evidence in court was both circumstantial and direct. It was direct in the sense that the assailants were arrested shortly after they committed the offence in broad daylight hence Ms Wu was able to identify them."

Justice Phuthego noted that not only had Ms Wu identified the two, but both were carrying large sums of money and failed to give a reasonable explanation of how they came to possess that money. Other stolen items that Ms Wu listed in her police report as her stolen property were also retrieved from the two.

Macheng, Justice Phuthego went on, pleaded alibi saying that on the day the offence was committed he was with his cousin who had visited him from Jwaneng.

"Macheng also said that he was implicated in the commission of the offence simply because he was with Ngwenya when they were arrested. He said he left his cousin at his place of residence when he went to buy meat and test drive the car he was fixing. I am of the view that there was ample time for him to commit the offence when he left his place to buy meat and test drive the car he was fixing unbeknown to his cousin. Moreover, the money that was recovered from both appellants tallies with the money that the complainant said was stolen from her. This cannot be a coincidence and the defence of Macheng is therefore, rejected as false as stated by the magistrate in her judgment," Phuthego stated.

The magistrate, Justice Phuthego added, could not be faulted for her judgment which tallies with the evidence that was adduced by other State witnesses in court.

"The record reflects that on July 2 in 2019 Ngwenya wanted to call his witness to come and testify on his behalf and the witness indeed came to court. After the witness came to court, Ngwenya said he no longer wanted her to testify on his behalf. Therefore, his assertion that he was not allowed to call his witness is rejected. In April, Ngwenya filed additional grounds of appeal contending that the 23 months and 20 days that he spent in jail before he was tried should have been factored into his sentence. The Magistrate did not explain why she did not factor that period when sentencing the appellants," said Phuthego.

Phuthego added: "The Magistrate should have factored the time the appellants spent in custody before they were sentenced. On the basis of the afore going, the appeal against conviction and sentence against both the appellants is dismissed. Their appeal only succeeds to the extent that their sentences should have factored the appellants' pre-trial incarceration. Any aggrieved party in this matter should appeal this judgment at the Court of Appeal (CoA) six weeks from today with leave of this court."