Sunday, April 18, 2021

Jamali’s appeal courts further controversy

The case in which the Directorate of Public Prosecutions is appealing the recent acquittal of land magnate Seyeed Jamali and Deputy Permanent Secretary Victor Rantshabeng has once again hit a snag, after the state failed to file their appeal within the requisite six weeks after the judgement has been passed.

Earlier this year, Lobatse High Court Judge Michael Leburu granted Jamali and Rantshabeng’s application for a permanent stay of execution, saying government had taken too long to prosecute them. The two were facing corruption charges related to illegal land dealings.

On November 11th, the DPP filed papers before the Court of Appeal seeking for Justice Leburu’s judgement to be set aside. In their appeal, the state argued that Justice Leburu failed to appreciate the full complexity of their investigations and, therefore, erred in saying that the state took too long to prosecute Jamali and Rantshabeng.

Attorney Saadique Kebonang then moved fast to quash the state’s appeal. On November 14th, Kebonang wrote to the Registrar of the Court of Appeal, Michael Motlhabi, arguing that state’s appeal was out of time, as the time frame within which the state should have filed their appeal papers had elapsed.

“We trust that the Registrar will not enrol the matter for hearing before a proper application for leave has been filed with the court,” he said.

He cited Rule 13 of the Court of Appeal Act, which bars the Registrar from filing any notice of appeal which has been presented after the expiration date has expired unless leave to appeal out of time has previously been obtained.

“The Court of Appeal has held that neither the Registrar nor the appellant can override this rule. We trust that you will do the right thing, since the acceptance of the appeal by the Registrar was in error,” said Kebonang.

In response, Motlhabi said there are doubts if the state had filed their notice and grounds of appeal outside of the stipulated time.

While he agreed with Kebonang that Rule 13 cannot be overridden by the Registrar or the appellant, Motlhabi said it will be in the interests of justice to allow the court to intervene through an application for condonation.

“Judgement on this matter was delivered on Thursday 29th September, and the notice and grounds of appeal were filed on Friday November 11th. If we take into consideration the import of Section 40 of the Interpretation Act, a room for argument is created on whether or not they are outside six weeks,” said Motlhabi.

He explained that his office received the application on the basis of the said room for argument. He, however, warned that the case will not be placed before the court until a leave to file out of time is granted.

“The DPP is expected to bring the application for condonation. In fact, notice and grounds of appeal cannot be processed any further unless leave to appeal out of time has been obtained,” said Motlhabi.

This effectively means that the state’s appeal is currently non-existent until such a time that they seek an order allowing them to file their appeal outside of the stipulated six weeks.
When appealing, Jamali and Rantshabeng’s acquittal, the DPP argued that Justice Leburu’s ruling that Jamali and Rantshabeng knew about investigations against them as early as 2004 was not supported by any papers filed before the court.

“The fact is that Rantshabeng appeared before the Lesetedi Commission, in 2004, as a witness. The High Court falsely assumed that he was charged at the time. The court erred in holding that Rantshabeng was prosecuted after seven years,” argued state prosecutor, Merapelo Mokgosi.

She said Justice Leburu failed to appreciate the full complexity of the state’s investigations and thereby erred in holding that such investigations were simple.

“The High Court failed to avert its mind adequately to the nature and complexity of investigations, and to systemic factors such as resource limitations. All these had a major contribution to the delay to prosecute,” said Mokgosi.

The DPP also argued that the High Court was wrong to find that the only appropriate remedy for Jamali and Rantshabeng should be a permanent stay of prosecution.

“Botswana’s criminal jurisprudence has ample safeguards to address such alleged prejudice. The High Court paid lip service to the nature and seriousness of Jamali and Rantshabeng’s offences, and whether it would be in the public interest to take them to trial,” argued the state.

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