Lobatse High Court judge Issac Lesetedi is on the 20 of June expected to pass judgment in a case in which police Inspector David Loftus Williams and his wife, Seonyana, want the case in which they are accused of defrauded the government of Botswana of P2 million to be permanently stayed on the grounds that the state had taken a long time to prosecute them.
Williams and his wife, through their lawyer, Dingake of Modimo and Associates, on Friday submitted that the delay in prosecuting them was never of their own making as they had never failed to turn up for Court on the dates scheduled for their hearings.
They said that it was the state which was always to blame in that the former presiding Magistrate, Banyatsi Mmekwa, failed to turn up for the hearing on many occasions.
They submitted that, on all those occasions, a promise was made that he would attend the coming session, a promise which was never kept by the state.
This delay, Dingake submitted, had led to the applicants or his clients losing contact with their witnesses, some of whom have since died or, in the case of foreigners, returned to their countries of origin.
If the case was to continue without them, he said, his clients would be prejudiced.
Besides that, he submitted that his clients had lost properties, for example, a house they used to own in Gaborone, which was attached and later sold because of their failure to pay mortages.
Further to that, their properties and their cars, which had been impounded by the Directorate of Corruption and Economic Crime because of the case, were currently exposed to severe weather in the DCEC compound.
Responding to the arguments by Dingake, Frederick Mpopang, representing the state, argued that the cause of the delay by the state in prosecuting the case was solely because Mmekwa had resigned as a judicial officer and that such delay cannot be attributed to either the prosecution or the administration of justice.
Mpopang submitted that there was hope and optimism when Mmekwa resigned that he would avail himself for the purposes of winding up the case which was shown by repeated attempts to get him to come back and finish the case.
This, he said, shows that this was a case of systematic delay. Futile efforts, he submitted, were made by both the Registrar of the High Court and the DPP to have the case started again.
On the grounds that the state was wholly responsible for the delay, Mpopang further submitted that, as soon as it became clear to the authorities that it was impossible to get the presiding Magistrate to come back to the case, they immediately referred the case to a judge for directions.
Mpopang also submitted that the applicants had never asserted their right to be tried within a reasonable time and that they only asserted such right after the matter had been refereed to the High Court.
This, he submitted, meant that they were not entitled to the relief they claim but to an order for the trial to commence before a different Magistrate.
The DPP lawyer in his submissions also attacked the applicants for not having been frank with the Court on how the absence of witnesses who died months before the events of the subject matter prejudices their defence.