Tuesday, October 26, 2021

Botswana Police, DPP and Attorney General lose stay of execution case

Botswana Police, Directorate of Public Prosecution (DPP) and the Attorney General last week suffered a humiliating defeat as they lost a stay of execution case against police employee, Petros Lesole. The case was before Francistown High Court Judge Barnabas Nyamadzabo.

The Police Commissioner is cited as first applicant, The Director of Public Prosecutions is cited as 2nd applicant while the Attorney General is cited as 3rd applicant. The applicants had made an application for a stay of prosecution against Lesole after judgment was made by the High Court in his favour on the 30th of June 2016. He was to be granted P170 000 for general damages, costs incurred from a loan obtained from one Gaabadzo Gondo(P18 000), the sum of P22 985.49 as loss of interest in plaintiff’s investment with the Botswana Police Service Loan and Guarantee Scheme(BPSLGS) and special damages for legal costs he incurred both at the Magistrate Court ‘s Court and Police Class II Board as well as costs of suit before the court. Lesole had taken his employer (Botswana Police) to court for malicious prosecution and for suffering damages and won his case. He had been slapped with a criminal charge which was later dismissed by the Magistrate court. He was then called for disciplinary hearing at the Police Class II Board and was not found guilty. The applicants also intended to file an appeal against the judgment. Lesole who was suspended from the police service has since been reinstated.

The applicants reasons to be granted a stay of execution are among others that although they admitted liability on malicious prosecution, the court erred by making an excessive award of P170 000.00 given the circumstances of the case. They also argued that the court erred in concluding that the respondent is entitled to a sum of P18 000 as costs incurred from a loan obtained from one Gaabadzo Gondo as what he is only entitled to is nothing more than the amount of 20 percent interest attracted by the amount loaned by the respondent from Gondo.

The also argued in their grounds that when considering what award as loss of interest in the respondent investment in the BPSLGS the court erred in taking into account the fact that the respondent would have cashed his contributions nine years from now when he retired in 2025. According to the applicants this was an irrelevant factor. They said it is not a matter of fact that the respondent will retire from the Police Service in April 2025.

The applicants also maintained in their grounds that the court erred in law by making a finding that the respondent is entitled to special damages for legal costs at the Police Class II Board where his disciplinary proceedings where handled. They felt that the court failed to take into consideration the principle that disciplinary proceedings are not criminal; in nature. “therefore a claim for legal costs does not arise in disciplinary proceedings”

However the court had to decide whether there are any prospects of success on appeal for it to be persuaded to grant a stay of execution of judgment pending appeal.

Giving his ruling, Justice Nyamadzabo said as well known, in a case where civil judgment has been granted, the mere fact of filing an appeal and its prosecution pending its outcome cannot stay such judgment. Instead it is only through a successful application for stay that such a judgment is un-enforceable.

“The applicants as already noted admit liability on the claim for malicious prosecution in terms of their first ground of appeal. The only issue is what they consider to an excessive award of P170 000. As indicated in the judgment the court went to some lengths in its assessment of the quantum of damages in arriving at the amount of P170 000.00.

The Judge also said the amount of P18 000 was sufficiently dealt with in the judgement. He said Gaabadzo Gondo confirmed in his evidence of giving the respondent a loan of P15 000 at a once off 20 percent interest.

“In this regard P15 000 multiplied by 20 and divided by 100 results in P3 000 which is added to the loan amount of P15 000 to make it P18 000. This being the case there is also no prospects of success on this ground.

Among other important issues the judge rubbished the applicants’ ground of appeal that it is not a matter of fact that the respondent will retire from the police service in April 2025. He said this cannot be a meritorious ground of appeal. The judge made it clear that as well known all employees on permanent and pensionable employment are deemed to retire at their prescribed retirement ages. He said the respondent has in the instant indicated that this is the period that he will retire when he turns 60 years and nothing substantive from the applicants has been led to contradict this. The judge also said the accused was rightfully entitled to legal costs he incurred at the Police Class II Board.

“The results as becomes obvious, is that there are no prospects of success for the Applicants in all the grounds of appeal. And there being no prospects of success on appeal, a stay cannot reasonably be granted. It is order that the application for stay pending appeal be and is dismissed with costs,” concluded the judge.

Wedu Maphane from the Attorney General represented the applicants while Isaac Seleka represented the respondent.

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