Both the state and Wilheminah “Butterfly” Maswabi scored partial wins at the Court of Appeal last Friday when a full bench delivered judgement in a matter that the former was appealing.
The Court upheld an application by the state that the High Court shouldn’t have acquitted Maswabi of all charges that she was facing. Maswabi’s own victory took the form of the Court upholding her acquittal on two charges.
All told, Maswabi, a former Directorate of Intelligence Services and Security employee, was slapped with three charges in October 2019: financing terrorism, possession of unexplained property and false declaration of a passport. In an affidavit deposed to by Jako Hubona, a Directorate on Corruption and Economic Crime investigator, it was alleged that Maswabi was a co-signatory of various bank accounts held with South African banks and that she had deposited more than P100 billion which had been stolen from the Bank of Botswana; that she transferred P29 million from one of those accounts to Isaac Kgosi, the former DISS Director General; and that she had nine personal offshore accounts with a total of $390 million.
Maswabi contested the allegations that Hubona had made against her, arguing in her own court papers that the alleged bank accounts didn’t actually exist. Tellingly, the state didn’t file any answering affidavit. Down the road, the state withdrew the financing terrorism charge but preserved the liberty to reinstate it. Following the withdrawal, Maswabi was discharged in relation to this charge. That left the possession-of-unexplained-property and false-declaration-of-a-passport charges standing but Maswabi soon turned up the heat on the state.
She sought information about the list of assets under her control which formed part of the possession-of-unexplained-property charge; proof of ownership of such assets; whether the false declaration relating to the passport was made orally or in an application form; and whether the false identity card number she had used when applying for the passport was compatible with the system used by the Department of Immigration and Citizenship in processing passports and if not, how the passport was processed.
She asked for this information from the Directorate of Public Prosecutions (DPP) which initially rebuffed her, arguing that the information she sought was the subject of an ongoing investigation. However, a magistrate court rejected that reasoning and ordered DPP to provide Maswabi with the information she demanded. Cracks began to appear in the state’s case soon thereafter. DPP didn’t attach proof of ownership as Maswabi had asked; out of the nine plots that she supposedly owned, only two actually belonged to her while the rest belonged to different people as well as to the state itself; and, out of the five vehicles she purportedly owned, only two actually belonged to her. With regard to the passport, it turned out that it had actually been made on the instructions of then Chief Immigration Officer and current Assistant Minister of Local Government and Rural Development, Mabuse Pule. The latter had asked a junior officer to “override the computer system and print the passport.”
Maswabi took the matter up with the High Court seeking an order declaring that the charges against her were fabricated – not least because the bank accounts that she purportedly held with South African banks into which she had deposited P100 billion didn’t actually exist. She wanted the court to set aside all three charges of financing terrorism, possession of unexplained property and false declaration of a passport.
When the state didn’t file any answering affidavit, she applied for an ex parte application for judgement on the basis that the matter was unopposed and that the period allowed for filing an answering affidavit has elapsed. A day before the hearing, the state filed a notice of opposition to Maswabi’s application. In his court papers, DPP’s Director-General argued that Maswabi had actually not taken any plea on either one of the remaining charges and that the criminal trial had not yet started; that the DG had actually communicated intention to withdraw the remaining charges but Maswabi had objected, insisting that the withdrawal should be without prejudice. She actually instructed her lawyer to argue for her acquittal on all charges. When judgement was handed down, Maswabi came out triumphant, with Justice Dr. Zein Kebonang at the Gaborone High Court discharging and acquitting her. It was this judgement that the state appealed.
The state’s case was that Kebonang had misdirected himself in making an order in criminal proceedings that were not before him, in ordering the acquittal and discharge of Maswabi when no plea had been entered with respect to the criminals charges she was facing, in revisiting a charge (financing terrorism) that had been withdrawn and in making findings that are criminal in nature and beyond the ambit of the review proceedings before him.
The matter came before a full bench composed of Judge President, Tebogo Tau, Chief Justice Terrence Rannowane as well as Justices Isaac Lesetedi, Lakvinder Walia and Tshepo Motswagole. Tau wrote the judgement and all four agreed with it. In it, she says that Kebonang’s order to discharge Maswabi of the possession-of-unexplained-property and false declaration charges was proper. However, the CoA found his acquittal of Maswabi on the financing terrorism charge to be improper because she had already been discharged on it and there was no need to revisit it. On such basis, the Court found that “it was incompetent of the High Court to acquit [Maswabi] on all charges levelled against her.” Resultantly, the CoA ruled that “the acquittal order in respect of charges brought against [Maswabi] is set aside.”
The significance of this judgement is that the state now has the option of reinstating the financing terrorism charge because it has preserved liberty to reinstate it.