07 Aug 2022

The Court of Appeal (CoA) has set aside a high court order that acquitted Welhemina ‘Butterfly’ Maswabi from all the charges she was facing.

The appeal by the Director of Public Prosecutions (DPP) and Attorney General (AG) followed a judgement by Justice Dr Zein Kebonang of Gaborone High Court delivered on August 23, 2021.

He had set aside the decision by the DPP to charge and maintain charges against Maswabi.

However Justices Tebogo Tau, Terrence Rannowane, Isaac Lesetedi, Singh Walia and Tshepo Motswagole of the Court of Appeal said the lower court erred in issuing such order.

Reading the judgement recently, Justice Tau said the appellants had stated in their heads of argument that they were challenging the decision of the court a quo to acquit the respondent on all charges and not against the respondent personally.

Judge Tau said the respondent had approached the high court seeking for its intervention on the grounds that the allegations and/or accusations contained in the charge sheet dated October 17, 2019 were fabricated and outright false.

The CoA further learnt that the respondent had approached the High Court on the grounds the allegations and/or accusations contained in the opposing affidavit of October 28, 2019 to the effect that the respondent was a signatory to various bank accounts held in various South African Commercial Banks under companies called Blue Flies and Fire Flies with a total of balance in excess of US$10 billion were fabricated.

The respondent was of the view that such accounts did not exist and the said companies were also non-existent.

Judge Tau said the appeal of the respondent to the High Court had also stated that the decision by the DPP to charge in maintain prosecution against the respondent on charges of possession of unexplained property, financing terrorism and false declaration was irrational and therefore must be reviewed and set aside.

Therefore, Judge Tau said as the DPP and AG were not satisfied with the decision of the High Court to acquit the respondent, an appeal was made to the CoA.

Judge Tau said on August 25, 2021, the DPP and AG filed a notice and grounds of appeal.

The CoA indicated that the appellants were of the view that the court a quo had aired in law and misdirected itself in ordering the acquittal and discharge of the respondent when there was no plea entered in the charge sheet before any competent law.

Judge Tau said the grounds of appeal were whether the High Court applied the correct test in its review of the DPP’s prosecutorial discretion and whether it was competent for the High Court to discharge and acquit the respondent on the three counts she was facing. Ends