Francistown High Court judge Mphaphi Phumaphi has reserved judgement in a case Gaborone lawyer Gabriel Kanjabanga and Boitshwarelo Moreeng want the case in which they are facing 13 counts of criminal charges to be permanently stayed as the state has taken long in bringing the case to trial.
Making submissions on behalf of Kanjabanga, Gaborone lawyer Dick Bayford submitted that Section 10 (1) of the constitution provides that ”If a person is charged with a criminal offence then unless the charge is withdrawn the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established or recognised by law”.
He further submitted that in considering whether there has been an unreasonable delay, the length of the time period involved must also be considered and that in the present case, Kanjabanga maintains that he was initially warned and cautioned of a charge in early 2005.
On the other hand, the state contends that he was warned and cautioned on 24 August, 2006 and that the record of proceedings before the Magistrate court indicates that Kanjabanga was first brought before Court on 23 January 2008.
Bayford also submitted that if the version of Kanjabanga is accepted, it would mean that at the time he was brought before Court some three years had elapsed.
On the other hand, if the state version is to be believed, it shows that one year five months had elapsed since he was warned and cautioned. Bayford submitted that Kanjabanga’s version is the one to be believed because Investigating Officer Mosinki states that the suspect was on 15 January , 2005 interviewed under caution on tape.
Bayford further submitted that as far back as October 2004 , the IO had amassed evidence suggesting that a cheque had been forged and deposited in an account operated by Kanjabanga and Associates.
Armed with this evidence, the IO must have confronted Kanjabanga with the allegations, which are the subject of the charges as he already had a prima facie case.
Besides that, he submitted that the IO had admitted that in 2005 he had phoned Kanjabanga on a number of occasions in relation to his investigations and that, still during the course of that year, he called him to his office for the purpose of verifying whether a certain man was Peter Kgosietsile.
These contacts, he submitted, are to be considered against the backdrop evidence that the IO had already then gathered that the cheque was a forgery and that it had been deposited into Kanjabanga’s trust account.
Bayford further submitted that the delay in bringing Kanjabanga to trial has occasioned grave prejudice to him as he had ably attested.
He submitted that crucial players in the unfolding of narrative of criminal case being persons he was originally charged with are not traceable, a fact acknowledged by the prosecutor before the magistrate . These persons, he submitted, are potential witnesses who would not have disappeared if it was not for the delay.
On totality of the evidence and the probabilities of this case, Bayford submitted that short of permanent stay of prosecution the prejudice occasioned on Kanjabanga cannot be cured by any other relief.
Opposing the application, Matlhogonolo Phuthego, of the Directorate of Public Prosecution, submitted that the uncontroverted averment of the IO is that 1 applicant Kanjabanga was first interviewed on 24 of August, 2006 and that it was then that the clock started ticking.
Further, he said, it is common knowledge that the two were then charged and brought before the Court in January 2008.This, he submitted, was less than one and half years after Kanjabanga was interviewed under caution.
Phuthego further said that this cannot be earmarked as unreasonable delay. The state, he further submitted, cannot be said to have delayed to charge the applicants such that the delay can be said to be unreasonable and that even assuming, but without in any way conceding that the delay was unreasonable, the staying of prosecution could not be the most appropriate remedy.