Saturday, March 2, 2024

New twist in the Daisy Loo case

Lawyers acting for Daisy Loo (Pty) Ltd and five Gaborone City Council employees facing criminal charges arising from the award of the controversial P24 million tender to the company have filed an application in the Lobatse High Court asking for an order dropping their charges.

The lawyers are asking for a raft of orders against the Directorate of Public Prosecution, DPP:
An order directing that criminal prosecution of the case relating to charges founded on facts upon which the High Court and Court of Appeal had decided be set aside and permanently stayed.
That the High Court should declare that the decision to continue with the prosecution of the claimants is an improper exercise of discretion and for costs of suit on attorney client scale.

The lawyers pointed out that on 19 October, 2006 Chief Justice Julian Nganunu handed down judgment in the case and found in favour of GCC. The Chief Justice ordered that the purported award of tender to Daisy Loo was improperly procured and accordingly declared it a nullity.

The decision by Justice Nganunu was, however, set aside in its entirety by the Court of Appeal. That Court of Appeal ordered that the sum of P21, 434, 434, 46, being payment by the GCC to Daisy Loo, be released to the company.

The lawyers maintain that the Court of Appeal, contrary to GCC, has found that the aspect of the tender, which gave rise to payment of the said sum of money to Daisy Loo, was not tainted with fraud, conspiracy or any form of illegality.

When the Court of Appeal made the decision, the criminal case against the claimants was pending before the then regional Magistrate and current acting Lobatse High Court judge, Terence Rannoane.

The lawyers argue that in terms of section 51 A (3) of the Constitution of Botswana, the lawyers the DPP is empowered , in any case in which she considers it desirable to do so, to institute , undertake continue or discontinue any criminal proceedings pending before any Court.
That this power entails the exercise by the DPP of an administrative discretion which ought to be exercised judiciously.

That in the light of Court of Appeal decision the DPP ought to have reasonably exercised her discretion in favour of a discontinuation of the said criminal case.

That her failure to so decide amounts to improper exercise of her discretion in that she has failed to apply her mind properly or at all in the circumstances.

Besides the Court of Appeal judgment, they also submitted that, sometimes in 2007-2008, the DPP instituted an application before the High Court seeking an order in terms of Section 8 of Proceeds of Serious Crime Act restraining the claimants from dealing with the proceeds of the cheque paid in respect with portion D of the tender.

The case was before Lobatse High Court judge Unity Dow and that in her judgment of 30 July,2008 she found that the evidence presented by DPP “fell far short of the standard required for a conviction”.

The judge, when making this finding, noted that she was applying a lower standard of a preponderance of probabilities as opposed to the more exacting standard of proof beyond reasonable doubt applicable in criminal proceedings.

They argue that the evidence that the DPP relies on in the criminal case is the same evidence placed before the Court in the case adjudged by Nganunu and also the same evidence she relied on in the case adjudged by Justice Dow.

In the light of all this, they submitted that DPP’s persistence in the prosecution of the claimants is “palpably unreasonable and abuse of her discretionary powers”.

The claimants in this case are: Frank Molaletsi, Gilbert Sithole, Frank Stegling, Daisy Loo, Moemedi Dijeng and Bitsang Sadi Abbey. Their lawyers are Duma Boko, Dick Bayford, Unoda Mack and Joar Salbany. The criminal case is set to continue in November.


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