State lawyer Joseph Akoonyatse this week found himself against the wall as a full bench of the Court of Appeal sought to know why it should set aside a High Court decision to discharge and acquit suspended Directorate of Intelligence Service agent Welheminah Maswabi from corruption charges.
High Court Judge Zein Kebonang acquitted Maswabi from charges ranging from financing terrorism, unexplained property and false declaration of passport.
The Court of Appeal judges who presided over the appeal are Lakhvinder Singh Walia, Chief Justice Rannowane, Justice Tebogo Tau, Justice Isaac Lesetedi and Justice Tshepo Motswagole.
The Court of Appeal is expected to deliver its judgement on 5th August this year in the matter which has attracted international interest in the Southern African Development Community (SADC) region and abroad.
Defense lawyer Akoonyatse who was engaged by the Directorate of Public Prosecution (DDP) told the court that the High court did not apply the correct test in making a determination of acquittal.
He said as the DPP, although they did not oppose suggestions by the defence that the charges were fabricated, their bone of contention was the decision by the high Court to acquit Maswabi on the face of ongoing investigations on the matter.
Akoonyatse told the full bench that State lawyer, Charles Gulubane who argued the matter at the High court, had demonstrated and maintained that they want the charges to be withdrawn and not Maswabi to be “discharged and acquitted.”
He said that the entire process of determining the outcome of the case was compromised arguing that when a wrong approach was applied, its conclusion would be equally wrong.
He prayed for the court of appeal bench to set aside the decision of the High court.
For his part, Maswabi’ s lawyer, Unoda Mack, said the charges against Maswabi were deliberately fabricated and false, with no evidence to support any facts before court.
Mack told the court that Maswabi was acquitted by the high court based on the facts which showed that she had never committed any offence.
“There was deliberate and total abuse of process, abuse of power. The DPP has accepted that there was fabrication and once accepted that proper process was followed; that evidence was deliberately fabricated alone amounts to gross abuse of power and with that there is no remedy but to set aside the charges resulting in acquittal,” argued Mack.
He further argued that Judge Kebonang had applied both section 127(10) and section 95 of the constitution.
He said the charges against Maswabi were not initiated with any belief that she was guilty, insisting that the charges were fabricated and false.
Kebonang had discharged and acquitted Maswabi from charges of possession of unexplained property and false declaration of a passport. Another charge of financing terrorism was later withdrawn by the state.
“Butterfly” was also implicated alongside former President Ian Khama, former Directorate of Intelligence and Security Services (DIS) Isaac Kgosi and South African businesswoman Bridgette Motsepe-Radebe for allegedly stealing P100 billion from Bank of Botswana.