08 Jul 2015

The July Court of Appeal (CoA) session is to decide whether an alleged stock theft peddler should succeed in his application for a permanent stay of prosecution.

Appearing before a panel of five judges, Ontikile Molatise, who was self-represented, told the court that it should accede to his application for the permanent stay of his re-trial on the grounds that the magistrate court did not comply with a High Court order.

On April 18, 2012 a High Court quashed and set aside a seven-year imprisonment sentence that a magistrate court had imposed on Molatise for stock theft.

The court had also ordered that the prosecution was entitled to institute proceedings against the appellant and that in such an event the matter be re -tried by a different magistrate.

The order was that such a re-trial should commence within six months from the date of the order.

However the appellant queried that he was brought before the same magistrate whom the order of the High Court specifically excluded.

 He also complained that the trial did not commence within the six months period that the judge had ordered.

Nonetheless during his submission it became evident that there has never been a retrial but instead the precluded magistrate only facilitated mentions while waiting for the arrival of the substantive magistrate. 

The appellant initially did not have a legal representative but finally engaged one, whom unfortunately usually told the court that he will not be available on certain dates which the court proposed for trial, thus the case delayed by eight months.
Molatise however made an applic

ation on May 13, 2013 to the High Court three days after his case was set for trial on June 2013; stating that it has taken a long time to commence. 

The six month period had elapsed and now the matter was on the eighth month, thus bringing it to a total of 14 months. 

However the panel wanted him to state what he clearly wanted the court to do and what could have happened if the trial could have taken place on June 2013 as scheduled. 

In response he said the magistrate court clearly did not honour the High Court order and that the trial would have prejudiced him in the sense that two of his only witnesses had died; one on November 2012 while the other died on January 2013.

He said at the initial trial, where he was sentenced to seven years imprisonment, the two witnesses never gave evidence because he did not call them due to insensitivity of the trial magistrate whom was biased to him as he continued with trial even though he was just served with seven different state witnesses statements which he needed time to study. 

He said he therefore chose to remain silent during the course of trial.

For her part, the state counsel Ms Sally Boitumelo said the delay in the trial was genuine, noting that there was only one judicial officer at the magisterial station at which his trial was to take place and this judicial officer had been excluded from hearing the case on retrial.

She told the court that a judicial had to be sourced from elsewhere and this took some time, when this judicial officer arrived, she tried to allocate the nearest possible date in order to expedite the appellant’s trial but the appellant’s attorney was unavailable on all those dates. 

These resulted in further delays until the judicial officer was transferred.

Ms Boitumelo therefore submitted that the appellant’s appeal be dismissed as it has no merit. Judgement is reserved for July 30, 2015. ENDS