25 Mar 2019

A recent judgement by Judge Ookeditse Maphakwane of Francistown High Court is bound to compel prosecutors to thoroughly prepare for court. 

Judge Maphakwane was delivering judgement in a case involving a frequent litigant from Zimbabwe, Josiah Patsanza, who had brought an urgent application for a permanent stay of prosecution against his trial of unlawful possession of suspected stolen property.

The judge’s bone of contention was that the prosecution failed to rebut the application by Patsanza because of poor preparation, thereby failing to assist the court to arrive at a proper decision.

The prosecution, Judge Maphakwana said,  had somehow misconstrued the applicant’s case and argued against a matter not pleaded by the applicant, which showed lack of research on their part. 

As officers of the court, he said, prosecutors ought to know they were ministers of justice in court and that the court expected nothing less than utmost diligent service through well-reasoned researched arguments. 

He said because of lack of research by the prosecution, the application was improperly brought before court.

Judge Maphakwane directed that the judgement be brought to the attention of the Director of Public Prosecutions as a caution to all prosecutors. 

 Borrowing from previous judgements, he stated that the courts existed to dispense justice and expected the state to assist it to arrive at a just decision. 

“Counsel appearing in a case are officers of the court committed to upholding the integrity of the judicial process and they have a duty to assist when called upon to assist the court and must not appear as if they are passing the buck to the courts,” he warned. 

Motivating his application earlier, Patsanza prayed for dismissal of proceedings because they were founded on violation of his fundamental rights and freedom as enshrined in the Constitution of Botswana.

He told the court that the prosecution was pursuing an objective contrary to the proper administration of justice and that there was no legitimate public interest for trial, which he said amounted to an abuse of the process.

Patsanza, who boasted that he was staying in Botswana illegally, further submitted that his right to a fair hearing had been violated by the state’s failure to play its role as provided for in the Criminal Procedure and Evidence Act. 

He said the court consented to being used as an instrument of injustice and oppression as there was no basis for trial since the unsubstantiated suspicion from a ‘reliable source’ was cleared by a police investigation. 

However, Judge Maphakwane said the applicant’s averment demonstrated that he had long conceived grievances against the trial court and had sought redress against such but failed, which he said was both self-destructive and self-discrediting against the applicant’s bid to be heard on urgency.

He said the applicant had an arduous legal duty in terms of the rules of the High Court to set fourth explicitly circumstances that  rendered the matter urgent.

“The applicant has woefully failed to satisfy the urgency requirements afore stated as he has not even alluded to any scintilla thereof in his founding affidavit,” Judge Maphakwne added. ends