24 Jul 2014

Village Principal Magistrate Mr Goodwill Makofi has dramatically recused himself from the ongoing fierce case between the state and the defence counsel of a former drug convict who are fighting for the ownership of ephedrine drugs which have since been in the hands of the state.

Magistrate Makofi told packed court on Thursday, July 24 that he was now at pains to preside over the case in view of the prevailing circumstances and because of rulings and orders he previously made in the matter said it would be best to refer the matter to a different court for determination. 

Ironically in his order of June 26, 2014, he had ordered the prosecution to motivate the director of public health services to apply for the forfeiture of ephedrine drugs which has been a subject of contention between a defence lawyer and the state for some time as to whom it should be given to.

The order was such that this application should be made within 14 calendar days of which, if the director failed to do so, the magistrate will hand the drugs to the defence counsel, two days after the elapse of the 14 days. 

However, when the matter came for hearing on Thursday, the defence, comprising Friday Leburu and Reuben Lekorwe demanded the return of the ephedrine immediately.

Motivating his argument, Mr Lekorwe told the court that there was no need for the court to entertain the state application which was made late on Wednesday because it shows that the director has failed to comply with the order within the specified period. 

Earlier on, Mr Puso Motlhabane of the Attorney General’s chambers told the court that he was instructed very late by both the DPP and the director of public health to make the application on their behalf.  Though he initially maintained that he was properly before the court, he subsequently conceded after he was shamed by the magistrate who asked him if he was privy to the order of June 26, 2014. 

Mr Motlhabane’s efforts to cajole the magistrate to file from the bar was unsuccessful as the magistrate could not entertain, neither the defence, who were adamant that the case should be brought to rest as it was clear that the drugs belong to them in terms of the order. 

Procedurally the state, being the Directorate of Public Prosecutions (DPP) was supposed to have filed the application on behalf of the director of public health services by July 10, 2014. 

The matter is understandably a criminal matter but the DPP had since referred it to be handled by Attorney General’s Chamber which is a civil division.

This painstaking case stems from South Africa drug mule Tamara Louis Azevedo, who was convicted for importing ephedrine drugs into the country without the consent of the director of public health services. 

Accordingly, Mr Leburu acting on power of attorney applied for the return of the drugs immediately after the closure of the criminal case which saw Azevedo being fined P5 000 or six months imprisonment in default of payment after her own guilty plea.

The law provides that whoever feels should claim such an exhibit should apply for its return within a period of three months and if this period elapses, the exhibit is automatically forfeited to the state. 

In the present case, the director of public health services did not show such a desire and as such Azevedo, through her lawyer Mr Leburu, applied for the return of the ephedrine.

Ephedrine is a second Scheduled Drug under Drugs and Related Substances Act and it is not a habit forming drug such as cocaine and mandrax which are listed under Schedule One.  Its possession in Botswana does not constitute an offense and a person in possession of ephedrine while in transit through Botswana can notify the director of public health services either before they enter the country or 48 hrs after they had left.

However, the Thursday judgement has not resolved the matter as the court has failed to give either Mr Leburu the drugs or order that they be forfeited to the state and therefore, opening the case for the parties to come and argue the matter afresh before a new court.

In his June 26, 2014 order, magistrate Makofi nevertheless did not have kind words for the prosecution as he lambasted it for its poor and reckless submission which he said was tantamount to suggesting that the courts were allowing drugs to be peddled haphazardly.

He also said the state counsel deliberately wanted to twist the law instead of arguing on points of law. Magistrate Makofi further charged that at times, counsels from DPP bring suspects to court with wrong charges which he said was very unfortunate and should not be encouraged.

In an earlier encounter during submissions, magistrate Makofi and the deputy director of the DPP, Mr Wesson Manchwe squared against each other as the latter wanted the court to make a ruling for the forfeiture of the drugs though there is no provision in law allowing such. 

Mr Manchwe also said the drugs should not be returned to the convicted drug mule because they did not enter the country lawfully in the first instance as doing that will be tantamount to condoning drug peddling. 

He however acknowledged that, ephedrine is not a habit forming drug as it falls under Schedule Two of Drugs and Related Substance Act, which does not advocate for such drugs to be forfeited as opposed to Schedule One drugs, which are habit forming drugs.

Magistrate Makofi said the state had during the course of trial not pointed out that the drugs did not belong to Azevedo, who has since returned to South Africa after paying her fine. 

He said the Act is clear as to what should happen to the drugs after the completion of the case and this empowers either of the parties in the case to apply for their return. 

In this case, he said, Azevedo through her lawyer properly applied for them to be returned to her and therefore, challenged Mr Manchwe to show any provision which precludes him from granting the applicant the drugs. ENDS