Saturday, July 4, 2020

Judge slams DPP over livestock prosecution cases

Francistown High Court Judge Ookeditse Maphakwane has lambasted the Directorate of Public Prosecution (DPP) for failing to prosecute livestock cases within reasonable time. The unhappy judge said the delay often defeated the ends of justice. He was delivering judgment last week in a suspected stock theft case involving a former police officer, Letso Dijoh. 

“This court posits that cases involving livestock are amongst categories of cases in which prejudice and dire consequences of failure to prosecute alleged offenders within reasonable time become manifestly grave and foreboding, as peculiar features of failure of justice resulting from obliterated brand marks and earmarks, loss of evidence and death of witnesses,” he said. The applicant (Dijoh) had applied for a permanent stay of prosecution as he felt the prosecution failed to prosecute him within reasonable time. According to court papers on or about the 24 of June 2008 at or near Bobeyakwena cattlepost in Central Administrative District, the applicant was found by a police officer in possession of 13 calves suspected to have been stolen. 

The High Court was to determine whether the applicant’s right to a fair trial within a reasonable time had been violated and whether a permanent stay could be granted. The applicant was granted a referral order of his application by the Palapye Magistrate Court on the 25th of June 2015. The state had initially opposed his application up to the date of hearing by a notice of opposition without filing any grounds. The application was ultimately not opposed after the state failed to garner opposing affidavits from its investigating officer. The applicant stated in his supporting affidavit that on June 2008, he was confronted by one Constable Modise and others from Palapye police station who seized his cattle alleging they had been stolen.

During the seizure he understood be investigating the matter and to within reasonable time depending on their findings to either charge him or drop the charges and hand him back his cattle. He stated that, to his surprise the police disappeared forever with his cattle without any update until the end of the 2008. He then engaged them through his attorney, Oganeditse Marata.The applicant further stated in his court papers that from early 2009 onwards he started making frequent visits to the police station, with the initial response being that the matter was still under investigation. The applicant said in 2012 he increasingly became desperate as his cattle had been taken away for about four years without any explanation from the police.

The applicant decided to engage his attorney Marata to come to his aid.  On the 11th of July 2012 he wrote to Palapye Police Station Commander seeking a status report on the investigations. In their response the police assured the applicant that the investigations were at an advanced stage. In 2014, his attorney Marata escalated the query to the Directorate of Public Prosecutions (DPP). The police once again approached the applicant informing him that they are furthering their investigations. This culminated with the applicant being charged with the current offence in 2015. He has however maintained that the cattle are his. He maintained that whilst employed as a police officer in Kang from 1997 to 2006, he had amassed cattle from various farmers, part of which he relocated to his home village of Palapye. 

The applicant also accused the police of failing to take photographs as evidence of the cattle when they took them. He asserted that this omission coupled with the police’s egregious delay in prosecuting the matter within a reasonable time brought with it an immitigable prejudice to him. In addition, he added that the prejudice was exacerbated by the deaths of his key witnesses where the cattle were sourced. Justice Maphakwane said throughout the entire period as reckoned from 24th June 2008, it cannot be argued that applicant was spared any attendant grave ills associated with pre-trial and post charging ordeal such as mental anguish, the inconvenience, the social stigma, the detrimental pressures and whole array of other ills inextricably attached to such a fate. 

“The cumulative 10 years and 3 months period was by far unreasonable and ordinate a long period of time not in consonance with the constitutional promissory note under section 10(1) of the constitution,” said the Judge.

He said that a delay of 10 years had nothing to do with the applicant’s laxity or ineptitude adding that this is the kind of an accused that the court is expected to save from the torrid-pretrial consequence of failure of justice. He said the applicant practically did everything possible that could be expected of him in the circumstances, to prompt up the state to expedite his trial but to no avail.

In conclusion Justice Maphakwane ordered a permanent stay of prosecution, acquitted and discharged the applicant from the matter. The state has been ordered to return the cattle and their progeny as demanded by the applicant. There was no order of costs.

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Sunday Standard June 28 – 4 July

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