The legal woes that have been bedeviling land magnate, Seyed Jamali, and Deputy Permanent Secretary, Victor Rantshabeng, are far from over, as the state on Monday moved to appeal their recent acquittal by Lobatse High Court Judge Michael Leburu.
The Directorate of Public Prosecutions on Monday filed papers before the Court of Appeal seeking for Justice Leburu’s ruling to be set aside, and for the two to return to court to answer to charges of corruption. Earlier this year, Justice Leburu granted Jamali and Rantshabeng’s application for a permanent stay of execution, saying government had taken too long to prosecute them.
In his judgment, Justice Leburu said “the clock started ticking” in 2004, when Jamali and Rantshabeng became aware of investigations against them. He agreed that the seven years that the state took to prosecute the two was unreasonably long.
In defense, the Directorate of Public Prosecutions argued that their investigations were complex and sensitive as they involved huge pieces of state land, bulky documentary evidence and interrogation of countless witnesses. When quashing the DPP’s argument, Justice Leburu said there was nothing complex about investigating Rantshabeng’s failure to declare interest. He faulted DPP for failing to exhibit diligence in collecting the necessary evidence to prove the charges and prosecute Jamali and Rantshabeng within reasonable time.
He said DPP has failed to prove the complexity of their investigations, as the plots which were being investigated were always available at all material times.
When appealing the judgment, the state argued that Justice Leburu’s ruling that Jamali and Rantshabeng knew about investigations against them as early as 2004 was not supported by any papers filed before the court.
“The fact is that Rantshabeng appeared before the Lesetedi Commission, in 2004, as a witness. The High Court falsely assumed that he was charged at the time. The court erred in holding that Rantshabeng was prosecuted after seven years,” argued state prosecutor, Merapelo Mokgosi.
She said Justice Leburu failed to appreciate the full complexity of the state’s investigations and thereby erred in holding that such investigations were simple.
“The High Court failed to avert its mind adequately to the nature and complexity of investigations, and to systemic factors such as resource limitations. All these had a major contribution to the delay to prosecute,” said Mokgosi.
She said Justice Leburu was wrong to assume that the state only took former Minister of Lands, Dr. Margaret Nasha’s statement on May 18th 2011; as such a finding is not supported by any papers filed before the courts. She said Dr. Nasha disclosed in her affidavit that her statement was obtained earlier than May 2011, and also explained why the date on which she first gave her statement was not inscribed.
Justice Leburu had earlier faulted the DPP for prevaricating; saying their delay to prosecute caused Jamali and Rantshabeng mental suffering and interfered with their freedom of movement and employment. He also said Jamali and Rantshabeng would not be able to mount a meaningful defense as they had lost some of their key witnesses.
But the DPP argued that Justice Leburu’s findings were speculative, as Jamali and Rantshabeng have not indicated when they saw the said witnesses and what efforts they made to trace them.
The DPP also argued that the High Court was wrong to find that the only appropriate remedy for Jamali and Rantshabeng should be a permanent stay of prosecution.
“Botswana’s criminal jurisprudence has ample safeguards to address such alleged prejudice. The High Court paid lip service to the nature and seriousness of Jamali and Rantshabeng’s offences, and whether it would be in the public interest to take them to trial,” argued the state.
Rantshabeng is charged with two counts of corruption after allegedly failing to disclose his interest in Universal Builders when he advised Dr. Nasha to reduce the price of a plot that Jamali was buying from government from P1.7 million to P 40, 000. Jamali, on the other hand, was charged with corrupting Rantshabeng by selling him two plots in Block 6, so that he could influence Nasha to favourably consider his appeal for a price reduction.