20 Jul 2022

A full bench of the Court of Appeal will on August 5 deliver judgement in the Directorate of Public Prosecution (DPP) and Attorney General (AG)appeal case against Welheminah Maswabi’s acquittal.

Sitting in Gaborone yesterday, judges Singh Walia, Terrence Rannowane, Tebogo Tau, Isaac Lesetedi and Tshepo Motswagole heard closing arguments from both sides.

The appeal follows the August 23, 2021 decision by Judge Zein Kebonang of the High Court to review and set aside the DPP’s decision to charge and maintain charges against Maswabi.

The Court of Appeal learnt that Maswabi had on May 12, 2021 filed an application with the High Court seeking to have DPP’s decision to charge and maintain charges against her to be reviewed and set aside on the basis that it was irrational, illegal and amounted to abuse of power.

Code named Butterfly, the former Directorate of Intelligence and Security Services agent was on October 17, 2019 charged with three counts of possession of unexplained property, financing terrorism and false declaration of a passport.

Her attorney Mr Unoda Mack argued that the DPP had failed to establish the foundation of the charges which made it clear that they were fabricated.

Mr Mack said the contention before the Court of Appeal was to establish whether the lower court had erred in its decision to acquit Maswabi.

He argued that Maswabi was acquitted based on the fact that she had never committed an offence.

“The charges were not initiated with any belief that the respondent was guilty or with a desire to bring justice to a person or offender whom the 1st appellant believed was guilty. The charges were trumped up and the evidence was deliberately fabricated,” said Mr Mack.

He said the DPP was using the law and the legal process as weapons against an innocent citizen.

According to Mr Mack, the case represented a profound and historic abuse of prosecution powers and the judicial process.

Based on the circumstances,  the appeal ought to be dismissed, he said.

In their grounds for appeal, the DPP and AG cited among others Maswabi’s failure to seek leave of court before launching a review application after four months as provided for in the Rules of the High Court.

Additionally, the appellants have also pleaded with the supreme court to determine whether the High Court applied the correct test in dealing with the review application.

Appearing on behalf of the appellants, Mr Joseph Akoonyatse said their argument was primarily focused on Maswabi’s acquittal.

Mr Akoonyatse argued that the High Court did not apply the correct test in making the determination to acquit Maswabi.

He said the entire process of determining the outcome of the appeal was compromised.

Logically, Mr Akoonyatse said when a wrong approach was applied, its conclusion would be equally wrong.  

Mr Akoonyatse said the order of the High Court was not supported by anything fundamental and on record and therefore should not be allowed to stand. 

The decision must therefore be  reviewed and set aside, he said. BOPA