Wednesday, July 6, 2022

BDF enlists Jacob Zuma’s lawyer to save Kalafatis’ killers

Botswana Defence Force (BDF) has engaged expert criminal lawyer and South Africa’s President Jacob Zuma’s legal advisor, Advocate Michael Hellens, in a last ditch attempt to save former army members convicted and jailed for the extra-judicial killing of John Kalafatis.

The BDF is expected to pick a huge legal bill in the appeal against the conviction of Dzikamani Mothobi, Gotshosamang Sechele, Ronny Matako and Boitshoko Maifala who were last year jailed for the killing of Kalafatis.

In a bid to save the quartet, BDF has spared no expenses and has enlisted the services of a crack criminal lawyer advocate who has handled a number of high profile criminal cases. Senior Advocate Hellens was Zuma’s legal advisor when the then South African Vice President was being prosecuted by the National Prosecuting Authority in 2009.

Hellens also successfully represented South Africa’s Ranch owner Andrew Phillips on charges of owning a brothel and employing foreign prostitutes in a case that made headlines in the South African media.

Hellens this week argued before the court of appeal that High Court judge David Newman erred in convicting the security agents relying on statements by Kalafatis’ brother and friends.
“No cautious approach with regard to the evidence of the friends of John Kalafatis or of the brother of Kalafatis, Costa, was undertaken. It is important for the judge to have found a reason to rely on their evidence given the interest they had in the matter of the manner of death of John Kalafatis,” he argued before a panel of three judges.

He added: “Clearly, Costa Kalafatis would harbour resentment against those who, as a matter of common cause, killed his brother. Clearly his friends and companions on the night would harbour similar sentiment.”

While Newman was supposed to critically analyze their evidence, the learned judge, Hellens argued, would not, citing instances in which the state witnesses contradicted their statements and even lied to court.

“Of significance in the assessment of reliability of evidence of Piet (friend of John Kalafatis) and Costa is the fact that the learned judge in his judgement rejected the state argument that the four accused persons set out from SSK Barracks with the specific intention, not of arresting Kalafatis, but of taking his life. The court also rejected the contention by the state over a similar threat allegedly uttered by Mothobi to Costa, when Costa was stopped at the Village prior to the shooting was in fact made. He does so because he accepts Mothobi’s denial version. He further does so because, on the overall facts of the case, it was highly, if not impossible, that was the intention because, as the judge correctly found, Mothobi had taken the trouble of seeing the police were called in to assist in the arrest. This would not have occurred had the intention been simply to kill John Kalafatis as opposed to arresting him,” Hellens argued.

He added: “Accepting then that the threat was not made, the court nevertheless goes on to rely on the evidence of Costa insofar as it clashes with the version of the accused. He does not reason away the fact that on the one hand Costa is John Kalafatis’ brother and would have a motive, by virtue of his emotional ties to his brother and grief at the loss of his brother, to lie and also does not attach any weight or find any significance in the fact that Costa alleged in evidence under oath that a threat to kill John Kalafatis had been made when, on the judge’s own finding, no such threat was made.”

“If no such a threat was made then Costa lied. If Costa lied and had the emotional ties that one brother has for another then it demonstrated that his evidence should not have been relied upon and should have been rejected.

In addition, the South African advocate argued, the court should have found significant that Costa had to resort to lies to implicate the soldiers in the indiscriminate killing of his brother and, therefore, perhaps the reason for the lie was true as inferred by the accused persons is in fact what transpired.

The final verdict is February 10.

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