Lobatse High Court judge Isaac Lesetedi has dismissed a case in which a Kang man, Kebakile Matere, was claiming P750, 000 from the government on the basis that the Directorate of Public Prosecution breached his constitutional right by delaying to prosecute him.
Dismissing the claim, Lesetedi said that for Matere to succeed in his claim, it was important that he demonstrated the exceptional circumstances to warrant additional relief of payment of money in compensation after he was granted a permanent stay of execution.
A permanent stay of execution on itself, the judge said, is, in a way, in so far as its concerns the prosecution, a punitive measure in that it denies the prosecution a right to prosecute yet prosecuting a suspected offender is a public duty undertaken as a measure to give relief to an accused whose right is violated.
The accused person in such a case, he said, gets a relief which guarantees him freedom from prosecution even though the question of his guilt has not been determined.
In this case, he said that it had not been shown why Matere is entitled to double punitive remedies adding that he had been sufficiently compensated in that the state had been barred from prosecuting him and that this was in itself a punitive sanction against the prosecution.
Lesetedi said that in a country where there is great demand for scare resources, it would not be appropriate to use these scare resources to pay for punitive constitutional damages to plaintiffs who are already fully compensated and that, in his view, this policy is applicable. Lesetedi then dismissed the application.
Before this, Lesetedi had dismissed other claims that had been made by Matere because he said there was no evidence to support them.
Amongst those claims was one in which Matere claimed that the delay in prosecuting him had led to his wife deserting him leaving him a sick man and taking away his children with her.
Matere said that because of the case, he was not able to pursue other activities of life to earn a living and, as an example, cited his brick molding business which went bankrupt because people perceived him as a criminal. He said that he lost his job with Siemens along with a number of his insurance policies all as a result of the delay in the prosecution of the case, adding that he could also not travel to South Africa for medical attention because of the case.
Lesetedi said all these claims had not been fully supported by evidence and that there were glaring inconsistencies in them.
In one of the claims about his wife having left him because of the delay in prosecuting the case, Lesetedi said that Matere had initially claimed that his wife left him in 1991 but that under cross examination he told the Court that he had married her in 1996 and that under further cross examination conceded that the year 1991 may have been the wrong year.
Lesetedi said that during more intensive cross-examination, Matere further admitted that his wife had actually left him after 2000. This, Lesetedi said, was not the only confusion in the dates and that his memory let him down. Charges which were permanently stayed against Matere are those of having attempted to aid apartheid commandos, arrested in Gaborone, to escape from jail.