Mosala’s exhumation
He then went on to pose several questions including:
Who detained the deceased and on what grounds?; what happened to the clothes which the deceased was wearing when she was abducted and initially detained?; who was with the deceased when she died in that cell?; Did she even die in the cell?; How did the deceased hang herself with a jacket from a rail that stands at the height of about one metre or less?; how did the deceased sustain a broken neck, if the version of the pathologist that the deceased broke her neck and also got simultaneously suffocated is to be admitted as the truth?; why did the police rush to get a pathologist who works for the first respondent when someone died in their custody?; can this pathologist, render an independent report without any coercion, gratification or conflict of interest?; why did the police rush to the media to give the impression that the family has exonerated them from liability when knowing well that such version is untrue?; and why did someone who calls himself an uncle/cousin, being one Mr Ditiro Baagi change versions and seemingly became protective of the police after his meeting with them?
These and many other questions seek answers and hopefully will persuade the court to grant the remedy sought herein according to Makwati.
The abduction
According to Makwati, on November 5, 2023, the deceased was with a friend, Kabelo Mpuisang, watching Sunday Soccer in Francistown. In the afternoon, the duo decided to drive to Block 1 to buy drinks with Mpuisang driving.
“While driving towards Block 1, a motor vehicle bearing Gauteng Province (GP) registration number plates approached from the rear and blocked the way to ensure that the two would not escape. In the car were two Zimbabwean men accompanied by a young male and female who were neighbours of the deceased and known to Mpuisang.
The two men abruptly alighted from the GP registered motor vehicle and aggressively told Mpuisang that they were on the deceased’s trail. They told the deceased to return the mobile phones that she had stolen from them.
The deceased, perturbed by the two Zimbabwean men’s aggression told Mpuisang that she wanted to hear what the two men were seeking, whereupon she got into the GP registered motor vehicle.
It was then that the two Zimbabwean men in the GP number plate took out cash and gave P600.00 each to the young man and women who had helped them to locate the deceased,” reads court papers.
The GP registered car then sped away with the men and the deceased inside. It was about 30 minutes later that Mpuisang decided to call the deceased to find out her whereabouts. The deceased informed him that the men had taken her to Kutlwano Police Station.
“Mpuisang rushed to the police station and found the deceased in one of the offices surrounded by a group of police officers, crying with her face badly swollen as that of someone severely assaulted.
The police officers told Mpuisang to ask “your friend” to bring the phones that she stole from the Zimbabwean nationals at some club. Mpuisang told the deceased in the presence of the police that if she stole the phones she must return them to the owners, to which the deceased, still crying, responded that she knew nothing about the phones.
Mpuisang then asked the police officers why the deceased, who had just arrived at the police station barely less than an hour back, on unfounded accusations of theft, could already be in such a bad state, with a swollen and beaten-up face. The police officers threatened to detain Kabelo for being a nuisance, and proceeded to kick him out of the police station,” read the papers.
Mpuisang reportedly did not leave the vicinity of the police station immediately but stood outside the compound.
While he was standing outside the police station, he saw the deceased being dragged by the police officers from the office in which she initially was, being taken upstairs, to the CID department where screams of deceased seemingly screaming like someone in severe pain could be heard.
According to Makwati, it is important to note that the clothes that the deceased was wearing when she died, including the jacket that she allegedly used to hang herself are not the same clothes she was wearing when she was arrested. At the time that the deceased was grabbed by the two Zimbabwean nationals, she was not wearing the jacket that she allegedly used to hang herself as she had left it at home.
“It is apparent that the police had at one point during the torture of the deceased driven the deceased from the police station, to Newstance, where she was staying to change the clothes that she was wearing because the ones she originally had on were bloodied from the beatings.
“This evidence will be corroborated by the other tenants in the residence where the deceased was staying. It is the whereabouts of the bloodied clothes which remains a mystery,” he said.
Makwati told the court that the applicant travelled to Nyangabgwe Referral Hospital about November 17, 2023 to inquire about the state of her daughter’s body where it was placed in the mortuary. However, the staff was less than helpful and told her that the only thing they were mandated to do by the police was to store the body and that all questions should be referred to the Botswana Police Service.
Hitherto, the police have not given the applicant any report or at least pictures of the scene when the deceased was found hanging as the police allege.
The police only state that the results of the post-mortem report indicate that the deceased committed suicide.
The whereabouts of the said postmortem report also remain a mystery and the first respondent as well as the fourth respondent have not done anything to allay the apprehension of cover-ups but only served with each and every application they seek, to circumnavigate the responsibility to account adequately and transparently for the deceased’s death.
“Given the above events, all the rules of procedure regarding the handling of deaths in police custody have been flouted.
While the first respondent indeed hastily posted a letter to the applicant’s attorneys positing that investigations are under way, this is not one of those matters that can be typically waived away with the, “we are still investigating” mantra.
“It is a matter of not only interest to the applicant who has the right to establish the cause of her daughter’s death and get closure, but it is also a matter of public interest. It is a case managed by the interests of justice. “The remedy sought also gives the first respondent an opportunity to clear itself of any wrongdoing and suspicions of foul play, if any. As things stand, the first respondent’s version of events is ludicrous and does little to allay the fear that there is a lot to hide.”
The sought order
The Mosala family wanted a court order directing that the Commissioner of Police facilitates or causes to be exhumed, the body of Pedzani within 24 hours from the date of the court order;
That the Commissioner of Police conducts a full investigation into the death of the deceased and hand the docket of investigations to the Director of Public Prosecutions;
Directing the Commissioner of Police to give Sapelo all the documentary and other evidence in its possession pertaining to the death of Pedzani. Directing the Commissioner of Police to secure and facilitate the acquisition of an independent forensic pathologist at own cost to perform an autopsy and issue a post-mortem report regarding the death of Pedzani.
Regarding Nkashama, to furnish the applicant with the postmortem report of the autopsy conducted on Pedzani within 24 hours of the issuing of this report. Reviewing and setting aside the report of the Commissioner of Police and any other report stating the death of the deceased as suicide by hanging;
Declaring the decision of the Commissioner of Police to absolve the police officers who were on duty at the time of the deceased’s death from any liability without an inquest as unlawful, irrational and procedurally improper;
Declaring that the circumstances under which the deceased died render an inquest into her death mandatory by law;
Directing that order (a) operate as interim relief pending the return date envisaged in the Rule nisi. Directing the respondents to pay the costs of this application in the event that they oppose;
Granting such further and/or alternative relief as the court may deem it fit.