Court of Appeal judge Monametsi Steven Gaongalelwe has notified the Attorney General of his intentions to approach the Court of Appeal to block the Directorate of Public Prosecution (DPP) from instituting a possible theft charge against him.
This follows a judgement handed down by Gaborone High judge Michael Mothobi in which he ruled that Justice Gaongalelwe be investigated by the DPP for possible charges of theft after he was listed on a Ministry of Defence, Justice and Security report for allegedly owing government 63 000 Pula (P63 141.00) in housing allowance.
Justice Gaongalelwe then challenged the Final Audit Report which exposed him as amongst the judges who had wrongly received housing allowance while occupying government institutional house has been postponed to 3rd August for argument.
In his judgement Mothobi said the matter be referred to DPP for investigation to decide if there is any possible charges of theft in relation to justice Gaongalelwe on his conduct for using housing allowance which he was not entitled to.
“Why did he keep the money for 3 years if he was not entitled to it and why did he propose to repay the money later if he was entitled to the money? As a learned Court of Appeal judge he knows all this things, ”said Justice Mothobi.
Justice Gaongalelwe has since notified the Attorney General of his intention to appeal Mothobi’s judgement and thwart the possible prosecution.
Through his lawyers, Armstrong’s Attorneys, Gaongalelwe states that Mothobi misdirected himself because the issue of referring the matter of housing allowance was not pleaded nor in respect which Mothobi head argument or submissions.
According to Gaongalelwe lawyers, Mothobi “misdirected himself, by deciding that the payment of housing allowance to the Appellant (Gaongalelwe) from August 2007 to March 2008 was a proper case for a referral to the Director of Public Prosecutions to make an enquiry on whether the Appellant should be prosecuted for theft for stealing.”
Justice Gaongalelwe’s lawyers say Justice Mothobi erred by making such findings without affording Justice Gaongalelwe the opportunity to be heard.
“The learned judge in the Court a quo erred in fact and/or in law by not finding that the housing allowance paid to the Appellant over the period August 2007 to March 2008 was paid to the Appellant as part of his salary, and over which payment the Appellant had no control,” argue Justice Gaongalelwe lawyers.
Among the reliefs that Gaongalelwe is seeking from court of Appeal is that he could not have committed the offence of stealing or theft and setting aside a paragraph of Justice Mothobi’s judgement that the matter be referred to the DPP for investigation and possible prosecution for theft.