Lobatse High Court judge, Issac Lesetedi, has dismissed an application brought by police officer David William and his wife, Seonyana, that their trial for having defrauded the government of over P1 million be permanently stayed on grounds that the state had taken too long a time to prosecute them.
Dismissing the application, Lesetedi said that the applicants had complained that the Director of the Directorate of Public Prosecution, Leatile Dambe, had contributed to the delay in their prosecution.
On this issue, Lesetedi said that on all the instances that the complainants say that the Director had failed to appear in Court, there were valid reasons given for her failure to appear and that there was always an officer from her office representing her and that there were also instances where the accused’s attorney did not appear when he was supposed to. In the light of this, Lesetedi said that the applicants had failed to demonstrate that the Director had contributed to the alleged delay.
On accusations that the Master and Registrar of the High Court had acted with reluctance and ineptitude by failing to conclusively deal with Banyatsi Mmekwa’s reappointment during the life of the case by appointing another Magistrate to handle the trial, the judge said that the record of proceedings and the affidavit by the Registrar satisfactorily explained the efforts which were being made by the Registrar and other officers of the Administration of Justice to get the matter moving or to try and get the trial Magistrate to take up a reappointment so as to proceed with the trial.
He said that in his view, it was a difficult decision in a trial which had taken several years and with a number of witnesses having been called, the case stopped and a new trial being ordered with the attendant costs and inconvenience.
On the issue raised by the defence that the delay in prosecuting the accused persons was a breach of their constitutional right to fair trial within a reasonable time, Lesetedi said that it is evident in this case from reading the Court records that the prosecution was as concerned as the applicants on the delay of the trial Magistrate to continue with the case. For example, he said that Dambe had, on the 8 of June 2006, informed the Court that the matter was scheduled for the setting down of dates but that she had not heard anything from the trial Magistrate.
Further, he said that he did not find that the period complained off constitutes an unreasonable delay in the circumstances of the case, adding that even if he had found that the delay was unreasonable, he was still to be persuaded that, as a result of the delay, the applicants had suffered irreparable prejudice which would render the conduct of a fair trial impossible.
He said that a lot of the prejudices alleged are those which are referred to as general and not trial related.
The applicants, he said, are on bail and that by their own admissions are able to travel extensively even outside the country during the time they were on bail and were excused from frequent Court appearances. On the grounds that they had suffered social stigma because of the delay in their trial, Lesetedi said that they had not demonstrated that the social stigma they suffered was anything beyond what is normally expected and that such an applicant was not entitled to a remedy.
On the issue raised by the applicants that they had lost contact with some of their witnesses and that of loss of memory, Lesetedi said that the applicants had named two witnesses of whom they had told the Court were dead as a result of the delay but that the investigating officer had shown that the said witnesses had died before the commission of the alleged offences and that this was not denied in reply.
On other witnesses the defence had said that, due to the passage of time, such witnesses were no longer traceable, Lesetedi said that the investigating officer in this matter had shown that four of them reside or work in Gaborone and that he had also provided business addresses of the others and had undertaken to assist in the tracing of the other two.
On the claims that a witness had left Botswana, he said that the investigating officer had shown that he has a Botswana residence permit which expires in December 2009.
On the issue of loss of memory on the part of witnesses to be called by the defence, Lesetedi said that it is difficult to make any definite decision as all that the court has is a bare statement to that effect. That it, however, appears that from the nature of the case that a substantial part of evidence may be based on documentation.
Finally that, in his view, the length of two years and some months had not been shown to be a very long period of time regarding the particular circumstances relating to the Magistrate in this particular case. The applicants, he said, had failed to demonstrate that, as a result of that delay, they had probably suffered irreparable prejudice either trial related or of a general nature such as to render the conduct of a fair trial impossible.
Lesetedi finally ordered the registrar of the High Court to appoint another Magistrate to start the trial afresh.
The state was represented by Frederick Mpopang, whilst the applicants were represented by Letsweletse Dingake.