The case in which former directors of Capital Management Botswana (CMB) Timothy Marsland and Rapula Okaile are facing criminal charges has taken a new twist.
The Directorate of Public Prosecutions (DPP) Director Steven Tiroyakgosi has revealed that the duo was acquitted and discharged before they could be charged.
Tiroyakgosi made the startling revelations in his founding affidavit in his appeal application against the decision of High Court Judge Boipuso Tshweneyagae wherein she acquitted and discharged Marsland and Okaile of charges they were facing ranging from obtaining by false pretences to money laundering.
Tiroyakgosi even suggested that the case was concluded while it was still under investigation. He said the effect of the judgement was to set aside the warrant of arrest issued against Marsland by the Magistrate Court.
Tiroyakgosi explained that “The Court in the judgement directed that the Respondents be acquitted and discharged of charges which not formally put to the Respondents (Marsland and Okaile) by the Applicants (the DPP and the Attorney General.”
“The warrant of arrest covered other entities in respect of which the First Respondent (Marsland) is a director. Although not sought, light in notice of motion, the judgement acquitted and discharged the Respondents in respect of charges that were never formally laid against them,” said Tiroyakgosi.
Tiroyakgosi argued that the grounds of appeal, take issue with the decision of the “learned Judge to review the Director of Public Prosecutions’ decision which decision he has not yet exercised.”
He contended that there was no decision to be reviewed and set aside as “investigations were still ongoing and there was no charge sheet served on the Respondents (Marsland and Rapula) and registered before court within this jurisdiction.”
He said the charge sheet relied upon by the judge was a document forming part of the extradition request of Marsland from South Africa. “The charge sheet was a pro forma charge sheet never served to anyone in the jurisdiction of Botswana. It was for the purposes of demonstrating to the extraditing court in the Republic of South Africa that there was prima face case against the judgement in question. It is therefore imperative that the issue be put to rest by the Court of Appeal,” said Tiroyakgosi.
He said the review application launched by Marsland and Okaile was premature as investigations were still ongoing and the matter not yet registered before any court in this jurisdiction.
“What is before court in the Republic of South Africa is an extradition against the 1st Respondent (Marsland) to be extradited to the Republic of Botswana to face prosecution of offences,” said Tiroyakgosi. He said the matter also raises grave public interest issues relating to the competence of the order of acquittal and discharge when there were no charges preferred. “From a public policy standpoint the matter creates a precedent of great concern,” he said.
“The prejudice, therefore, is monumental as the judgement as a precedent curtailing and disrupting of the ability of the State to act on evidence of criminality when such fully presents itself,” he said adding that as a result of the court’s decision Marsland may escape to Germany as always was his intention.
Replying, Marsland through his lawyer, Gabriel Kanjabanga, said though Tiroyakgosi said he had not charged them, but only formed an intention to charge them; this was incorrect. “A charge sheet had been served on the respondents and even then, an ‘intention’ is a decision which is capable of review. This however is a question of fact which is not appealable by him,” Marsland’s lawyers said. The lawyers also argued that an acquittal and discharge in a criminal application for review of prosecutorial decision or permanent stay is a consequent corollary of the review or grant of permanent stay.
“Even if the court had simply set aside the decision of the 1st Applicant to charge respondents, the fact of the matter and legally, they will not be charged and prosecuted and that is as good as an acquittal and discharge,” the lawyers argued.