Saturday, July 4, 2020

COURT GRANTS MAN ORDER TO HAVE POLICE OFFICES SEARCHED

Having earlier tried to weasel out of an unusually sticky situation, the Mochudi police station finds itself having to allow a Deputy Sheriff acting on behalf of an aggrieved party to peruse its records.

The latter is Tloutona Victor Bontsi who, in 2006, reported stolen uni-beams (23 in all) that were subsequently recovered by the Mochudi police. In terms of procedure, the police kept the beams as exhibits while they investigated the case. The theft case never went to court and finally despairing, Bontsi asked for the beams back. Last year, after a long, fruitless struggle, it became evident that the beams were missing. It was then that Bontsi sought legal assistance from Patrick Kgoadi, a Gaborone-based lawyer, who made an application for an Anton Piller order – which the High Court has granted.

Named after the 1975 English case of Anton Piller KG v Manufacturing Processes Limited, this is basically a search order that provides the right to search premises and seize evidence without prior warning. An Anton Piller order is intended to prevent the destruction of relevant evidence.

Faced with this unusual situation, the police resorted to some unusual tactics. At first, they offered Bontsi P30 000 compensation for beams he says are worth P550 000. When he rejected the offer, the matter went to the High Court. Through his Anton Piller application, Bontsi asked the court “to compel the police to release records of the items seized from the alleged criminal.” The records he sought were daily occurrence books for the 2006-2008 period as well as the evidence log book. In giving the rationale for why he sought those particular documents, Bontsi stated that he wanted to ascertain “when the items got into the custody of the [Mochudi police], further how many they were and their whereabouts at the present.”

At first disavowing knowledge of the beams, the Botswana Police Service then conceded that they “suddenly disappeared” but then argued that the matter had prescribed because Bontsi didn’t bring his application within six years. Bontsi’s counter-argument was that prescription only starts to run upon the course of action. In his court papers, he stated that prescription only started to run on the date that he was informed that the beams were missing.

“At all material times, when the items were in police custody for court exhibition purpose, no cause of action arose against the police. The defence of prescription would not arise in this situation. The items were lawfully under police custody until the police decided to dispose of same in 2018. Only then did the cause arise,” argued Bontsi, stating in another part that with the police having made inconsistent statements, the “only” available evidence is of the records.

Mention of a scrapyard dealer, Alman Metals, strongly suggests that the beams may have ended up at a scrapyard. On August 6 last year, the police interviewed Wynard Sanders of this company in connection with the disappearance of the beams. Evidence presented in court shows that Alman Metals removed six truckloads of scrap metal from the Mochudi Police Station. Given that the beams were in police custody, Alman Metals would have needed police permission to acquire them.

Down the road, BPS decided it wouldn’t be a good idea to fight the case in court and accordingly withdrew its opposition to the Anton Piller application. Resultantly, Bontsi got the order he sought. This decision paved way for what will be an ironic turn of events: a group of people whose job is to investigate suspects will themselves be investigated. Onkemetse Medupe, a Deputy Sheriff acting on behalf of Kgoadi and Partners, the law firm that Kgoadi is managing partner of, has delivered copies of the court order to the BPS Civil Registry, the Deputy Commissioner of Police and the Mochudi Police Station Commander.

In terms of this court order, BPS is ordered to produce the beams in question as well as the documents (daily occurrence books for the 2006-2008 period as well as the evidence log book) that Bontsi wants to gain access to. Upon failure by the police to produce the required items, “the Deputy Sheriff of this Honourable Court [shall] be authorized to enter the premises of the Respondent’s principals of Mochudi Police, Botswana Police Southern Regional Headquarters or National Headquarters to search for such items.” Additionally, BPS will bear the costs of the searches that the Deputy Sheriff will conduct.

Whatever records are turned up will be subjected to another pair of eyes – that of Kgoadi himself. In an earlier court application, the veteran lawyer told the court that “the information sought may be too technical for the Deputy Sheriff and it may be difficult for him or her to extract evidence required once the records have been availed.” In that same application, Kgoadi makes the more general point that the case goes way beyond the interests of his client because the police “have a duty not only to the applicant but to the public at large to keep an accurate record of goods recovered from criminals.”

Speaking to Sunday Standard on Friday evening, Kgoadi said that he is awaiting word from the police for when the search can start. There is no weasel room for the police because, as the lawyer explains, any resistance to the order would amount to contempt of court. Such contempt raises with it, the spectre of a senior police officer, possibly the Deputy Commissioner, being put behind bars. The police would be at their wits end about what to do about this unusual case and it would seem this is the first time that they have to deal with an Anton Piller order. During the early days of the matter, Kgoadi recalls one senior police officer scoffing at the idea of “civilians” inspecting the records of a law enforcement organisation.

RELATED STORIES

Read this week's paper

Sunday Standard June 28 – 4 July

Digital copy of Sunday Standard issue of June 28 - 4 July, 2020.