Directorate of Public Prosecution lawyer, Mosweu Ditodi, says that they are appealing against a judgment passed by Lobatse High Court judge Michael Leburu early this year in which he quashed conviction and sentence against former Francistown lawyer, Tiro Mothusi.
Ditodi said that they have reached the decision to appeal against Leburu’s judgment after realizing that the judge had erred on several issues in his judgment.
”Our reason for going to the Court of Appeal is that we feel that the judge had erred in his judgment and we would like the Court of Appeal to decide on them,” he said.
In his appeal, Mothusi had raised points that the magistrate’s Court file has a lot of material missing from it that it will make it difficult for the High Court judge to use it to reach a fair conclusion on the case.
The other grounds, on which he relied on, was that he had suffered prejudice due to the incomplete record, which, it has been argued, no adjudication of appeal can be made.
In his judgment, Leburu had, amongst other things, said that a right to appeal is an integral part of or an attribute of a fair hearing and, as such, must, of necessity be ventilated and exercised within a reasonable time.
He further said that once the typed record is availed within a reasonable time, then an appeal based on that record “will also be ventilated within reasonable time and in accordance with the true intent and spirit of the Constitution”.
The absence of a complete typed record, he said, “may therefore render one’s substantive appeal nugatory and this is not the intention of the Constitution”.
The trilogy of deficiencies, the judge said, “squarely lie on the state’s door step and not on the part of the applicant”, adding that “the applicant has suffered immense prejudice as a result and hence failure of justice has occurred”.
Leburu further stated that the state had conceded that the deficiencies alluded to above were occasioned by ineptitude and explains why the state morally asked the court to exercise its discretion as it deemed fit”.
Leburu then upheld the appeal.
