The prosecution team in the murder case implicating Thabo Stimela has reiterated their earlier stance that they are against the granting of bail since they fear Stimela and his co-accused might skip bail and head for South Africa.
Alongside Aubrey Nkuna, a South African citizen and Kegone Sebina, a Motswana citizen, Stimela is charged with the murder of Lesley Managa Ntshwane.
Sebina has already been granted bail, pending trial.
After the two’s failed application for bail at the lower courts, Stimela and Nkuna approached the High Court.
The prosecution fears that because of their connections in neighbouring South Africa, it was highly likely the two might disappear.
“It is our submission that both petitioners are non-citizens of Botswana and both came into the country on the fateful day to commit crime,” said Ambrose Mubikwa. “That the 2nd petitioner Nkuna is a South African is common cause. As regards Stimela, we contend that he is a South Africa citizen who originated from Botswana although he argues otherwise,” adding that “it would not be advisable to grant a person like Stimela bail because in the event of him absconding it would be extremely difficult to locate him”.
As regards the contentious extradition standoff between South Africa and Botswana, the prosecution argued it would be difficult, if not impossible, for South Africa to extradite Stimela and Nkuna to Botswana should they escape to South Africa as that country does not subscribe to capital punishment whereas Botswana laws permit the imposition of capital punishment in deserving cases.
“It is crystal clear that if they are granted bail and if they thereafter decide to elope to their native country, a natural destination South Africa, it would be difficult if not impossible to have them extradited to Botswana to face the current charge of murder leveled against them,” Mubikwa contended.
“That being the case and in line with the wording of the treaty, South Africa may refuse to extradite the petitioners and as such a decision would not be in the interest of proper administration of justice,” he further argued.
For their part, the petitioners’ team, led by attorney Sidney Pilane, argued there was nothing the prosecution could offer to satisfy the court that there is substantial probability the accused will abscond and thereby not attend the trial.
“Opposition to an application based on speculations that the accused will abscond will not suffice. Evidence and facts which support that fear must be adduced showing a substantial probability that the accused will not attend his trial,” Pilane argued, insisting it would be wrong to deny an accused person bail on the basis of an expression of fear that he would abscond without offering substantial evidence in support of that fear.
Pilane also dismissed bail refusal on the basis the petitioners are foreigners, contending Stimela was born in Marapong with a Botswana national identity and pertinent extract from his passport which shows that he uses it in his travels including to and from South Africa.
“That the second petitioner is foreign national, while a factor to be considered, does not carry much water. A person can not be denied bail on grounds of his nationality,” he posited, citing
Patrick Cole, a Sierra-Leone citizen, who was granted bail by the High Court on fraud charges.
“The position taken by the judgment is nothing new. It has obtained since 1994. That undertaking has frequently been given. We cannot speculate on whether it will in future be given or not,” he said, adding “whether it will or not is not a matter that should concern our courts in their consideration of applications for bail.”
Judge Michael Leburu reserved verdict to Thursday morning.