as double murder convict claims self-defence — accuses police of tampering with evidence
Moorosi Tsiane
DOUBLE murder convict Habofanoe Ntsie is making a last-ditch bid to overturn his conviction, accusing police of tampering with evidence, failing to preserve the crime scene and raising questions over conflicting ballistic reports in a case that has kept him behind bars for years.
Ntsie, who was convicted in 2012 of murdering Souru Masupha and Habaka Mahao, appeared before the Court of Appeal yesterday as his legal team sought to overturn the High Court judgment. In February 2023, he was sentenced to concurrent prison terms of 20 and 21 years for the two murders.
His latest challenge follows a series of court applications in his quest to regain his freedom. He previously complained that his appeal could not proceed because portions of the High Court record were missing, prompting an order for the prosecution to provide the outstanding sections.
Last week, Ntsie launched another challenge, arguing that Justice Maseforo Mahase should have recused herself from sentencing him because of her previous involvement in a dispute between him and one of the deceased.
The Court of Appeal had been expected to deliver its ruling on the recusal application yesterday. However, when proceedings resumed, the panel directed the parties to argue the merits of the appeal, indicating that it would deliver a single, comprehensive judgment.
Ntsie’s lawyer, Advocate Letuka Molati, then raised fresh concerns over what he described as discrepancies in the ballistic evidence, accusing the prosecution of tampering with the record after two documents relating to investigations into the firearm used in the murders emerged.
“My lords, I would like to take the court through the document which was submitted as exhibit G in the High Court. It is a document on the investigation of the gun used in the commission of the crime. It bears a date of 20 December 2004, but there is also another document talking about the same thing which bears the date of 22 September 2009. The question is, why should there be another investigation about the same gun five years later?” Adv Molati asked.
He said the discrepancy was significant because the expert witness who testified during the trial had indicated that the firearm used to shoot the deceased was found in their vehicle. However, the witness had also testified that the investigating officer instructed him to prepare a proper report, Adv Molati said.
He argued that the subsequent report contradicted the earlier findings by identifying the firearm used in the killings as belonging to Ntsie.
Despite challenging the ballistic evidence, Adv Molati conceded that Ntsie had shot the deceased but maintained that he had acted in self-defence.
He told the court that a defence witness had testified that Masupha previously threatened to “drink Ntsie’s blood”, which the defence argued demonstrated hostility towards Ntsie.
“The appellant shot twice and he acted in self-defence as he was under attack by Masupha, who had previously told his companion that there is a devil that he wants to go and drink his blood.
“So the appellant only fired two shots and it is evident that there was somebody else who came and finished them off after he had left, handing himself to the police. There is cumulative evidence that Masupha was aggressive towards the appellant and he had no other option but to defend himself,” Adv Molati argued.
The defence lawyer further alleged that police had failed to preserve the crime scene, instead destroying it in a manner that allegedly implicated his client.
Adv Molati also challenged the prosecution’s failure to call the pathologist who conducted the post-mortem examinations to testify during the trial. He argued that it was improper for the medical report to be submitted without its author being called to explain the findings.
“It was improper that the pathologist was not called in to testify in the trial. Instead, he submitted the report only,” he said.
He further argued that the High Court had erred in refusing to admit audio recordings Ntsie had submitted as evidence. According to Adv Molati, the recordings should have been treated like any other evidence and Justice Mahase had wrongly ruled them inadmissible.
The Crown, however, dismissed the defence’s arguments, insisting that the High Court judgment contained no misdirection warranting the Court of Appeal’s intervention.
Acting Director of Public Prosecutions, Adv Lehlanako Mofilikoane, urged the appeal court to uphold the conviction, arguing that the defence had focused almost exclusively on Masupha’s murder while failing to adequately address the second murder.
“My lords, I submit that the High Court judgment should be confirmed by this court because there is no misdirection in it. The order issued for the court to take into consideration is that there are two counts of murder in this matter, and Adv Molati has only been talking about the murder of Masupha only,” she said.
Adv Mofilikoane maintained that eyewitness testimony supported the prosecution’s case. She alleged that Ntsie pursued the deceased after their vehicle fell into a ditch as they attempted to flee from him following an incident in which he blocked their way.
She told the court that Ntsie approached the vehicle and opened fire repeatedly before leaving the victims at the scene.
“The accused alighted his car and went straight to the car of the deceased, shot at them for about eight times as per the eyewitness evidence, and he thereafter left them there,” she said.
The Crown also defended the High Court’s decision to reject the audio recordings, arguing that Ntsie had admitted to tampering with the evidence by editing the recordings himself.
After hearing submissions from both sides, the Court of Appeal reserved judgment for 13 November 2026.
The appeal was heard by a panel comprising Court of Appeal president Professor Kananelo Mosito and acting judges Johann van der Westhuizen and Realeboha Mathaba.
