18 Aug 2020

 

 

 Acting regional magistrate, Mr Goodwill Makofi has refused an application by the defence’ lawyer, Mr Uyapo Ndadi requesting that Welheminah ‘Butterfly’ Maswabi’s case be removed from the court roll.

Mr Ndadi said the prosecution team was far from concluding their investigations and therefore it was not necessary for his client to appear before court without progress.

In making his ruling at Gaborone’s Broadhurst Magistrate Court on Monday, Mr Makofi acknowledged the defence’  reasoning that the prosecution was taking long in concluding the investigations and that the delay acted as prejudice on the accused person. He, however, added that the defence did not attach any authority to their reasoning to support their position.  He also acknowledged that the delay had financial implications on the accused person, as she was paying her attorney for court appearances that could be deemed unnecessary. The case will mention on November 17 for a status hearing.

Mr Makofi also took into consideration reasons put before the court by the prosecution. He observed that the prosecution had indicated the likelihood of amending the charge sheet by adding more charges and more accused persons.

Updating the court on the status of the case, the prosecution team; Ms Priscilla Israel and Mr Omphemetse Makale said the investigation in the case was still ongoing with notable progress.

Ms Israel said the case was postponed in February for the purpose of allowing the prosecution time to wrap up their investigations.

Ms Israel observed that the prosecution had identified the need to amend the charge sheet by introducing additional charges and more accused persons before the matter could be committed to the High Court for trial.

“There is outstanding evidence to collect for potential witnesses in both the public and the private sectors,” she said.

Maswabi is charged on three counts of possession of the unexplained property, financing terrorism and false declaration of passport. Ms Israel said the proposed additional charges and accused persons would be in relation to counts one and three.

The prosecution further appreciated that it was given seven months to complete investigations. The prosecution team also asked the court to appreciate that the investigating team was hampered by the restrictions put in place to control the COVID-19 pandemic. Ms Israel observed that the case was investigated by the Directorate on Corruption and Economic Crime (DCEC), who could not work during the lockdown as they were not regarded as essential service.

She said most of the evidence requested by the investigating team was identified with sources outside the country, in localities such as New Jersey, Indonesia, Hong Kong, Japan, United Kingdom and South Africa. As for South Africa, Ms Israel said the prosecution had sent the requisite documents to assist in outsourcing the required evidence.

“We have engaged a South Africa based advocate, Gerrie Nel to assist in processing the application on our behalf. On Friday (August 14), we signed an affidavit to assist in the application for gathering evidence in South Africa,” she said.

As such, the prosecution has requested for the case to be postponed by at least three to four months, with the hope that the prosecution will wrap up the evidence. “We can assure the court that on the next mention, if we have not gathered enough evidence to support count two of financing terrorism, we will move on with the other two counts,” she said.

Opposing the prosecution case, the defence attorney noted that the matter was not fresh before the court.

“I know the matter is new before the current presiding magistrate, but it is not fresh before this court, as it was registered on October 18, 2019, and therefore it has been over 10 months appearing here without notable progress,” said Mr Ndadi.

Mr Ndadi said in November 2019, the prosecution had indicated that they had sent requests all over the world to secure evidence. He said there was little progress as the prosecution was still advancing the same reason for the delay.

“My advice is for the prosecution to register cases when they have completed investigations. You must not come before the court only to ask for time to continue with investigations.

The accused person has a dark cloud hovering over her.

The court has no duty in monitoring your investigations. Therefore, there was no need to register a case that is not ready,” said Mr Ndadi.

Mr Ndadi said the defence team was never made aware of the likelihood to amend the charge sheet prior to the court appearance. He was of the view that the prosecution was given enough time to complete evidence gathering.

“I do not know what prejudice the prosecution will suffer by removing the case from the court roll. I believe the seven months was a favour to the prosecution and now they want to stretch it beyond the limit by asking for another four months. The state must get its house in order before coming to court,” he said.

In responding to the defence attorney’s application, Mr Makale said the matter was before the court for a status hearing, therefore, the prosecution did just that by giving feedback on the progress of the investigations. “We gave enough evidence, guiding the court to refuse the defence’ application,” said Mr Makale. ENDS