05 Aug 2015

The Court of Appeal (CoA) in Gaborone has ordered that a re-trial for a stock theft accused should go on as initially directed by a High Court judge as the accused will suffer no prejudice.

Ontikile Molatise had approached the Court of Appeal requesting it to order a permanent stay of prosecution because he would suffer prejudice from a prolonged period of stay of prosecution, and that the six months in which a magistrate court was supposed to have conducted trial had passed. 

Molatise, who was self-represented, pleaded with the court to accede to his application for a permanent stay of re-trial on the grounds that the magistrate court did not comply with the high court order, but instead waited until the six-month period had elapsed and then stayed another eight months.

In 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 retried by a different magistrate.

The order was that such a re-trial must 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. 

However, during his submission it became evident that there has never been a retrial, but that 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 later engaged one, who unfortunately told the court that he would not be available on certain dates which the court proposed for trial, hence the delay by eight months. 

Molatise made an application in May 2013 to the high court three days after his case was set for trial arguing that it has taken long to commence. 

However, a panel of five judges wanted him to state what he wanted the court to do, and what could have happened if the trial could have taken in 2013 as scheduled. In response, he said the trial would have prejudiced him as two of his only witnesses had died. He said one died in  November 2012 while the other died in January 2013.

However, the Court of Appeal held that the appellant, not unnaturally, has placed a literal interpretation on a high court order. Judge Seth Twum, who delivered the judgement, said the appellant’s view was that the time fixed was sacrosanct and once it had elapsed, it was irredeemable. The court held that this argument was a non-sequitur. 

Judge Twum also observed that there was also the ‘filibuster’ tactics of the appellant’s counsel which prolonged unreasonably the time of trial. 

The court noted that the prosecution, on the facts, had not breached the high court order, adding that to accede to the appellant’s interpretation of the order would render it a brutum fulmen. 

Judge Twum further found that in any event, in all the circumstances the overspill of eight months was not unreasonable.  

The appellant jumped the gun too soon when he told the magistrate’s court that he was not interested in fixing the dates. That would, on a sports field, be a false start, he observed.

Justice Twum therefore dismissed the appeal as unmeritorious as the appellant has not established any prospects of success. Therefore he said re-trial must be resumed. Ends