15 Dec 2022

Like previous years, 2022 has been a busy year especially for the Judiciary.

In 2022 the Administration of Justice has dealt with peculiar litigations and subsequently proffered some landmark decisions. Looking back at the past 12 months, one can say criminals took their trade a notch higher, leaving law enforcement agencies with little option but to beef up security to protect the public and property.

For the first time in the history of Botswana, the nation has witnessed an upsurge on the use of firearms by criminals, to the extent there had been casualties as a result of shooting that ensued between law enforcement operatives and criminals during heists. However, criminals have in almost all fire-exchanges been on the receiving end with some of them losing their lives in the process.

In one of the unfortunate situations, recently, two members of the public were killed in cross-fire between the police and the criminals at Sefalana in Gaborone. Automated Teller Machines (ATMs), which have also been the primary target for criminal syndicates have also been bombed hemorrhaging businesses of millions of pula. Meanwhile courtrooms have also been grappling with some spellbinding cases.

 In one of the high profile cases involving Lobatse legislator, Dr Thapelo Matsheka, respondents pointed out that some of their sources who happened to be traditional doctors had made startling allegations that the legislator was using muti to ward off investigators.

This was after Dr Matsheka had approached the High Court challenging his lengthy and unlawful detainment on August 02, 2022, on suspicions that he might have a hand on March 18, 2022, alleged murder of Tlotso Karema.

In one of the gruesome murder incidents the country has witnessed, a teacher, Barulaganye Aston was murdered in Kopong on July 14 and it is alleged the suspected killers wrote ‘277 Die ‘ on the wall with the deceased’s blood. Four people including her former husband Outlwile Aston have since been charged with Barulaganye’s murder.

Two of the four accused persons, Leufty Gaolemogwe Kosie and and the deceased’s former husband Outlwile Aston were on two occasions allegedly caught using a cellphone while in custody to communicate with someone believed to be outside the prison.

The duo were denied bail as they were found to be violating prison rules.The prosecution argued that they were likely to violate their bail conditions if granted conditional bail.

 The prosecutor in the matter relayed to the court that the investigating team had intercepted a ritual that was to be performed at homes of four of the prosecution’s potential witnesses. Though behind bars, Aston and Kosie were suspected to be masterminds behind the planned ritual as they had engaged and paid a traditional doctor from Zimbabwe to perform a ritual which intended purpose was unknown.

Another case was one in which Ernest Legwale is charged with the murder of Thato Meswele, younger sister to Leagwale’s exwife (Dimpho Meswele).

During his last appearance before Gaborone High Court Judge Michael Leburu, State Prosecutor, Ms Mersapelo Mokgosi described Legwale as someone who was so desperate to kill his former wife and her mother to a point that he consulted a traditional doctor to assist him carry out the heinous act.

 The court has learnt that even after the younger sister to Dimpho (Thato Meswele) was mistakenly murdered in the process, Legwale again went to the same doctor requesting to be cleansed to circumvent arrest. Still, in the same matter, Judge Leburu has made a landmark ruling that a confession statement by the second accused person, Hamadi Mkhuha was not freely and voluntarily made therefore inadmissible as evidence before the court.

Judge Leburu ruled that the confession statement was not recorded in the accused person’s original language, Shona and that he was induced to make such a statement as he was promised to be used as an accomplice witness.

One of the positive changes in gathering evidence was to allow virtual footage to be used as evidence in court. However, it appears there is still a long way to go before such evidence finds its way into the courtroom, as investigators appeared to be in the dark on how to make such evidence admissible in court. However, on September 26, 2022, Broadhurst Magistrate Court ruled against the use of CCTV footage as part of evidence alleged to have been captured at a robbery incident involving G4S cash in transit vehicle that was robbed P2.3 million at gunpoint at Turn Right Mall, along Gabane road. Defence attorneys, Mr Olehile Manchwe and Mr Nkosana Ngwenya objected to the prosecution’s request to play, identify and tender video footage alleged to have captured the robbery incident that occurred on October 13, 2021.

They premised their argument on the fact that the witness on stage was not the one who extracted the footage from the cameras and therefore could not be in a position to present such evidence; something that the court acceded to. Another incident which has chipped away at the security at police stations was a robbery incident at Goodhope police station.

 It is alleged in the case, currently before Lobatse Magistrate Court, that on or about June 28 at Goodhope Police station seven accused persons namely; Isaac Tshepiso Molale (36), Leatile Kingsley Modise (25), Mogomotsi Thupane (39), Ronnie Sanana (42), Thulani Mthembu (33), Jabu Shabangu (26) and Pedito Sipho Mathangana (26) acting together and in concert stole firearms and live rounds of ammunition with a cumulative value of P193 550. 11, being the property of the government of Botswana. At the time of stealing the said firearms and ammunition, the accused persons were armed with axes and used actual violence in order to obtain the stolen firearms and ammunition.

Another case that made headlines involves former Permanent Secretary to the president, Mr Carter Morupisi who was convicted of corruption and money laundering by Gaborone High Court.

His wife Ms Pinny Morupisi and business, MR7 Group were acquitted and discharged while Mr Morupisi was recently sentenced to a wholly suspended two-year jail term and a cumulative fine of P130 000 for his deeds. In another case which was before the Court of Appeal, a full bench turned down an attempt by the Directorate of Intelligence and Security (DIS) to withdraw two appeals concerning former president Lt Gen Seretse Khama Ian Khama, saying the two judgments were in the public interest.

The appeal related to the high court decision to refuse the directorate permission to search State House Number Four, being the official residence of Lt Gen Khama, as well as declaring the sealing of the same as unlawful. Interestingly, during arguments on the matter by the two parties, the court suffered a bizarre moment when the lawyers representing Lt Gen Khama walked out of the court during arguments of the case saying the ruling had been predetermined.

In yet another landmark ruling, a panel of the court of appeal confirmed a life imprisonment sentence imposed by Francistown High Court judge Matlhogonolo Phuthego last year, on 37-year-old, Dipuo Marutwane of Pallaroad for raping a three-year-old toddler.

Marutwane had approached the Court of Appeal seeking the court’s favour to change a life sentence imposed on him by lower court.

 In other developments, Justice Barnabas Nyamadzabo was sworn in as the new chairperson of the Independent Electoral Commission (IEC), taking over from Justice Abednego Tafa who retired from the public service. As he was clearing his desk at the Administration of Justice, Justice Abednego Tafa sentenced a Zimbabwean illegal immigrant, Passmore Moyo, to death for the murder of his girlfriend, Mosianeemang Motswagole in Good Hope in 2018.

Other retirees from the bench include, Justice Monametsi Gaongalelwe from the Court of Appeal. Establishment of the Presidential Commission of Inquiry into the review of the Constitution in its entirety for the first time since independence is another milestone.

 The commission has since submitted its report and was recently made public. The year 2022 closes with the Court of Appeal (CoA) directing that Mr Pitseng Gaoberekwe should be buried outside Central Kalahari Game Reserve (CKGR) within seven days.

The ruling followed the deceased family’s appeal of the High Court decision, which ruled that Mr Gaoberekwe, who died on December 2021, should be buried outside the reserve.

“The appellant is directed to bury the deceased’s body either in New Xade where the deceased as a resident or any other place of his choice outside the CKGR and in a place with designated cemetery within seven days from this decision,” said Justice Mercy Garekwe when putting the matter to rest on Monday. ENDS