More than two months after his conviction was overturned by the Court of Appeal, former Bakwena regent, Kgosikwena Sebele, has yet to be re-instated as president of the Customary Court of Appeal.
Sebele was dismissed from his post in February 2010 after being found guilty of stealing a Billy goat by the Molepolole Magistrates Court.
Our efforts in trying to establish reasons for the delay in Sebele’s reinstatement proved futile as we were sent from pillar to post by the concerned authorities. The deputy Permanent Secretary in the Ministry of Local Government, Molefi Keaja, (local governance) could not entertain questions from The Telegraph as he said the matter was “too big” for him to handle and referred us to his boss, Permanent Secretary Boipelelo Khumomatlhare.
Khumomatlhare also passed on the baton and referred our enquiries to the acting director of Tribal Administration, Tumelo Seboko, who told The Telegraph that he was not yet in a position to answer questions as he still had to discuss the matter with the Permanent Secretary. He, however, acknowledged receiving a letter from Kgosikwena Sebele expressing his desire to return to office as President of the Customary Court of Appeal. He said upon receiving Sebele’s letter, Khumomatlhare contacted the Attorney General’s Office for legal advice for which he was still awaiting.
In an interview with The Telegraph, Sebele confirmed that indeed he contacted the Permanent Secretary’s office regarding his reinstatement and that he was still awaiting a decision regarding the matter.
Sebele was first convicted on charges of false claim and obtaining by false pretences by the Molepolole Magistrates Court in 2009 and subsequently sentenced to a four year prison term in 2010. However, he challenged his conviction and sentence at the Lobatse High Court where the appeal was dismissed and the conviction upheld by Judge Ian Kirby. In addition, Kirby consequently increased the initial sentence┬á┬á to five years stating that there were no exceptional extenuating circumstances to justify the departure from the mandatory five year imprisonment.
Again, Sebele was not about to despair as he decided again to seek help from a higher court by applying for leave to appeal Judge Kirby’s ruling. Before granting leave to appeal, Judge Lot Moroka explained that: “Kirby has since ascended to the highest bench as President of the Court of Appeal Botswana. By twist of irony the very court to which the applicant seeks leave to appeal.
Ordinarily, the application for leave to appeal against the decision of a judge must be made before the same judge whose decision is appealed against. This application cannot legally be possible before Kirby as he now sits in the Court of Appeal.”
In granting leave to appeal, Moroka quoted Section 7 of the Penal Code which dictates that: “A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by him with respect to the property was in the exercise of an honest claim of right and without intention to defraud”.
He said the prosecution failed to prove Sebele guilty beyond reasonable doubt; ruling that Sebele had demonstrated a reasonably arguable case on appeal and therefore granted leave to appeal. When overturning the conviction and subsequently rendering Kgosikwena Sebele a free man, the Court of Appeal shared Moroka’s sentiments that the state had failed to prove that Sebele “without any claim of right and with intent to defraud took the property in question”. ┬á
Sebele was represented by attorney Ngakaagae of Ngakaagae and Mbikiwa Legal Practice.┬á┬á┬á