06 Jul 2020

Butterfly Loses Bail Costs Application

Gaborone High Court on Monday dismissed a request by suspended Directorate of Intelligence and Security Services (DIS) agent, Wilhelmina ‘Butterfly’ Maswabi for the state to bear the costs of her bail application.

Initially denied bail by the Regional Magistrate Court (South) after her arrest in 2019, Maswabi had two successive bail applications before the high court, the first denied by Justice Christopher Gabanagae in October 2019 while the second was granted by Justice Michael Mothobi in November 2019.

The defence in the case had then applied for bail costs for both the high court hearings to be borne by the state, a matter heard by Justice Mothobi in April this year.

Presenting his ruling on the matter on Monday, Justice Mothobi pronounced that he did not have the jurisdiction to rule on the costs of the first hearing that had been before Justice Gabanagae and the applicants had failed to provide sufficient grounds for the second, and he thus dismissed the application in its entirety.

Making reference to Section 95 of the constitution which defines the jurisdiction of the high court, as well as sections 113 and 114 of the Criminal Procedure and Evidence Act (CPEA) which outline bail application procedure, Justice Mothobi said he could not rule on the costs of the application that had been made before Justice Gabanagae.

He further said that in presenting their side, the defence team, which included Unoda Mack, Uyapo Ndadi and Phatshimo Mphoeng, had argued that the state had conducted its litigation against Maswabi in bad faith, with affidavits from former President Lt. Gen Dr Seretse Khama Ian Khama and a South African forensic expert having put the legitimacy of the charge sheet into question.

But Justice Mothobi said this was for the court to determine when the merits of the case are argued when the case proceeds, and such arguments did not have a bearing on bail application costs, citing the precedence of a 1990 Court of Appeal case, the State versus Malan.

In a case that is due to proceed later this year, Maswabi, 47 is accused of possession of unexplained property; financing terrorism having allegedly transferred US$2 950 000 (around P34.7 million) to former DIS director general Isaac Kgosi, who according to the charge sheet in January 2019 is said to have threatened to commit acts of terror against the country and a further count of false declaration while acquiring a passport. Ends