It doesn’t rain but pours at the Directorate of Public Prosecutions (DPP). Given the battering the prosecutions agency has received in recent times, one would have expected it to redeem itself in more ways than one by demonstrating that it has turned a new page in pursuing its constitutional mandate. But lo and behold, its conduct evokes more questions than answers. Having caused the erstwhile founding Director General of the Directorate on Intelligence and Security Services (DISS) Rre Isaac Kgosi to appear in court to answer to the six charges it has preferred against him, he applied for and was granted bail by Magistrate Mme Lindiwe Makgoro. Both parties were afforded an opportunity in an open court to argue for and against the Magistrate granting Kgosi bail.
When all was said and done, the Magistrate granted him bail presumably on the strength of his argument. It goes without saying that reasons advanced by the DPP to oppose bail were so weak if not frivolous to carry the day. Reeling from its spectacular and dramatic failure to keep Kgosi in custody pending his trial, the DPP it appears, would not stand the sight of watching Kgosi coming for his trial from the comfort of his palatial residence in Phakalane. Consequently, the DPP has approached the High Court to revoke Kgosi’s bail and most astonishingly if not bizarre, ask it to rope in another Magistrate to take over the matter from the Magistrate of first instance. I thought the DPP would launch a separate recusal application on the Magistrate if it genuinely believed she was compromised or bias in dealing with the matter. Food for thought one would say. So where and how does the review application evoke more questions than answers?
The point of departure should be some of the issues raised by the DPP in the review application document. In this document, the DPP moves ‘That the 1st Respondent’s decision to release the 2nd Respondent on bail be and is hereby declared a nullity and is hereby reviewed and set aside.’ Unfortunately for me, the document does not state reasons why the 1st Respondent (Magistrate Makgoro) goofed in granting the 2nd Respondent (Kgosi) bail. Like I have alluded to above, the two parties were afforded an opportunity to state their reasons for and against granting Kgosi bail. The Supreme Court of India has reiterated that if all relevant factors were not taken into consideration while granting bail then the Superior Court can set it aside. The critical question under Kgosi’s case is whether ‘all relevant factors were taken into consideration’. Nothing suggests they were not.
Cancellation of bail legal gurus argue, can result if (a) ‘the person granted bail misuses his liberty by indulging in similar criminal activity (b) interferes with the course of investigations (c) attempts to tamper with evidence or witnesses (d) threatens witnesses or indulges in similar activities which would hamper smooth investigation and (e) attempts to flee to another country.’ Expectedly, Magistrate Makgoro would have as a matter judicial course, weighed in on the preceding bail determinants and consequently satisfied herself that nothing suggests Kgosi could violate them. It is rare if not odd for the prosecuting agency to be contesting granting of bail to an accused person. In fact, it is the accused who will contest refusal to grant them bail as was demonstrated in the Butterfly’s case in the P 100 billion case.
The second point DPP raises that evokes more questions than answers is ‘That the 2nd Respondent be brought before a different judicial officer at the Magistrate court on the 11th of November 2021.’ The DPP appears it is still stuck in the same old mode of forum shopping wherein it believes a new Magistrate sympathetic to it must be brought in in order to provide fertile ground for preferred decisions against Kgosi. The preferred Magistrate it would appear, would be brought in to twist every possible legal procedure to favour the DPP. One wonders whether the review application would be pursued had Magistrate Makgoro denied Kgosi bail. The question of bringing a new Magistrate because the Magistrate of first instance would have ruled in favour of the accused flies in the face judicial independence and integrity which in and of itself, is as good as compromising the judiciary in one respect or the other. Put bluntly, the DPP wants by hook or crook, an executive-minded Magistrate. It is fair and reasonable to suggest the conduct of the DPP is to intimidate the magistracy into succumbing to its wishes however outrageous they could be. A precedence may very well have been set.
The third issue that evokes more questions than answers is why the DPP has enlisted the services of a private law firm, Rantao Attorneys. Kgosi’s case is my view a fairly straightforward case with no complexes. A competent fresh lawyer from the law school should be able to handle it. The State has retrieved and placed in its custody, materials and equipment from Kgosi’s residence. All it has to do is to prove beyond any reasonable doubt that by being in possession of such materials and equipment, he has violated the provisions of the National Security Act and any other relevant law. Why then would a private law firm and predictably at a huge cost to the tax payer, be roped in to argue a bail application by Kgosi when the DPP is spoilt for choice in so far as lawyers are concerned? Why at the very least did the Director of Public Prosecutions Advocate Stephen Tiroyakgosi himself and at no cost to the taxpayer, not defend the bail application? Why shouldn’t I conclude the roping in of a private law firm is a firm vote of no confidence on DPP lawyers?
The Sunday Standard online edition dated 30 October 2021 reported ‘Rantao not part of proceedings to have Kgosi bail decision reviewed’. This is seriously odd that a private law firm roped in to argue a bail application matter for the DPP would not, seemingly, be part of the DPP legal team when the same seeks to have the decision reviewed and set aside. Odd still is the fact that the address of the Applicant’s Attorneys, Rantao Attorneys is visibly displayed and signed on the review application document presumably by a representative of the law firm or by Rantao himself. Why is the address of the DPP, which is the owner of the case, replaced by that of Rantao Attorneys? Is the law firm convinced there is no need to review the fact that Magistrate Makgoro granted Kgosi bail and that at the infancy of the case, it is still too early to question the impartiality of the Magistrate?
At the end of it all, the DPP continues to deepen itself into more damaging terrain than redeeming itself as an independent organ of the administration of justice where all citizens, despite their status in society, will be prosecuted and convicted where and when circumstances permit, on the basis of existing laws of the Republic and without fear, favour or prejudice. Further to this, all judicial officers will not be put under undue pressure and intimidation to dispense justice fairly. The current unfolding events in Kgosi’s case is testimony that nefarious objectives are arguably being pursued. The arguments raised herein posit that the review application launched by the DPP on what I can gather, is to get Kgosi behind bars and to remove the Magistrate of first instance. A big chunk of bad faith is not far-fetched. In both cases in my view, there are no compelling reasons to do so. Unless there are new compelling reasons which I doubt there are, the High Court stands to dismiss this review application punitively. In the meantime, many questions remain asked. If these questions are not adequately answered, this Republic could very well be knocking on the door of the law of the jungle where kangaroo justice becomes the order of the day. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Let us all continue to adhere to all Covid-19 health protocols.
