At the High Court level, Justice Zein Kebonang has put the P 100 billion case where Mme Welheminah Maswabi popularly known as Butterfly was facing criminal charges on financing terrorism; living beyond her means by being in possession of unexplained properties and fraudulently acquiring Botswana passports to bed. What remains to be seen is whether his judgement will be appealed. Media reports suggest the Director of Public Prosecutions (DPP) who is the 1st Respondent in the judgement is contemplating appealing the judgement. In this conversation, I will be discussing whether a different judge would have judged the matter differently or the same as did Justice Kebonang and whether there are prospects of success at appeal. If you asked me, I will argue that based on the facts Butterfly put before him to be considered for her discharge and acquittal, no other judge would have come to a different conclusion. Further to this and on based on the same set of facts, no prospects of success exist on appeal. Let me be upfront to say opinions proffered herein are not from a legal scholar but from an ordinary member of society.
The matter before Justice Kebonang was a review application brought to his attention and determination by the Applicant Butterfly primarily as a result of criminal charges preferred against her by the 1st Respondent back the in October 2019. These charges are the ones alluded to above. Butterfly held these charges were trumped up by the 1st Respondent and his partners with no factual basis to do so. No evidence attaching Butterfly to the purported properties was presented by the 1st Respondent. Evidence not disputed by the 1st Respondent was presented wherein ownership of the said properties belonged to third parties. Evidence presented by the immigration department showed beyond any reasonable doubt that passports issued to Butterfly were lawfully done so. Contrived evidence to try to allow the terrorism charge to stand did not exist. As a consequence, she prayed to be discharged and acquitted. Counsel for the 1st Respondent Attorney Gulubane according to Justice Kebonang, was not opposed to the prayers of the Applicant except the one on discharge and acquittal. Having considered the charges could not stand because the DPP had not presented compelling evidence to sustain them, and instead fabricated the would-be evidence, Justice Kebonang decided to discharge and acquit the Applicant.
A legal opinion from a retired South African Judge Dennis Davis sought by Ms Bridgette Motsepe-Radebe who is one of those implicated in the P 100 billion ‘theft’ to have benefitted therefrom, concurred with the reasons proffered by Justice Kebonang that the case was nothing more than sheer fabrication by the DPP and his partners. It is not clear whether Justice Kebonang had sight of this legal opinion when writing his judgement. What is clear however is that they sing from the same hymn sheet in so far as trashing the validity of allegations against the ‘theft’ of P 100 billion. The reasons in this Judge Davis opinion, are confined to whether there is a link between Motsepe-Radebe and the benefit she would have accrued from the ‘stolen’ P 100 billion. Judge Davis concludes his opinion by saying “In my view, any association by any organisation which seeks to further propagate these baseless allegations, particularly based on any legal advice, would itself be liable for an action for defamation by Ambassador Motsepe-Radebe. In conclusion thus, the case against the Ambassador is, on all evidence available, predicated on baseless allegations which have no place in a court of law.”
Barring issues of overreach and conflict of interest on Justice Kebonang as suggested by some in our midst, would any other judge have ruled in the manner that he did or differently with the same set of facts and evidence? The DPP holds that the judgement ‘was emotive’ and that it addressed issues not before it. Assuming this is so, would such have materially changed the nub of Buuterfly’s application in order to render the decision by Justice Kebonang that the charges against her were fabricated null and void? I hold the view that in the absence of compelling reasons and evidence to tie Butterfly to the charges preferred against her, no other judge would have likely ruled otherwise.
The DPP is reported in weekend newspapers to have been unhappy with the judgement and thereby intending to appeal it by saying “Our view is that the judge went overboard and even addressed issues which were not before it-for example, the charge for Financing Terrorism was dealt with last year when we withdrew it. There is the question of the competence of the court to deal with the issue of acquittal. The judgement was emotive and the matter was beyond the realm of the court.” After reading this statement, I wondered why the DPP would appeal a judgement when it elected not to oppose core issues raised by Butterfly during the proceedings. At para 77 under The Review Application of the judgement, Justice Kebonang observes “The Applicant’s review application was filed on the 12th May 2021. The Respondents provided a review record on the 11th June 2021 and filed their notice of opposition on the 14th June 2021.” At para 78 he further observes “The Respondents have not filed anyopposition papers on the merits of the Applicant’s review application.” (My underlining for emphasis)
As stated above, Counsel for the 1st Respondent’s main gripe was against the discharge and acquittal of Butterfly, nothing more and nothing less. Counsel for the 1st Respondent had all the opportunity in the world to factually and evidently oppose the prayers raised by Butterfly in her application for discharge and acquittal. Why Counsel chose this strategy which in itself and of itself has fatally backfired to the point of probably and permanently killing the DPP case going forward can only be explained by the said Counsel and the DPP. This is perhaps explained by the judgement at para 83 where Justice Kebonang says “The failure to file an answering affidavit by the Respondents means that the factual averments made by the Applicant are uncontrived and her application on the merits is unopposed. Should the Respondents point in limine fail, the assertions of the Applicant must be accepted and reliefs sought be granted as they would effectively remain uncontrived and unopposed.” From where I stand, the DPP will have to compellingly overcome para 83 at the Court of Appeal.
It is common cause that the DPP withdrew the Financing Terrorism charge late last year. One would have expected Counsel for the 1st Respondent to have robustly argued this point during Butterfly’s application. As indicated in the two above paragraphs from the judgement, the DPP effectively sat on his rights through his Counsel by not filing opposition papers to oppose the merits of Butterfly’s review application. It cannot by any wild imagination be argued that DPP was ambushed by Butterfly’s review application whereat it could not properly prepare for it. There was just nothing more in defence it could muster. For the DPP to belatedly turn around and say this charge was dropped last year does not in my view, enhance his argument as a solid ground for appeal.
Was Justice Kebonang emotive in his judgement as alleged by the DPP to be a ground of appeal should the DPP so choose? The issue of emotions from judges when delivering judgements or presiding over matters before them has been deliberated on by judges themselves and relevant stakeholders. It is accepted that judges are themselves part of the society where their emotions, just like everyone else, could be triggered by situations and circumstances as they come across them. In a paper titled ‘Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?’ by Andrew J. Wistrich, Jeffrey J. Rachlinski and Chris Guthrie, they argue that ‘….Judges are exposed to the full spectrum of emotions, many of them unpleasant….Judges see gruesome photographs of injuries and crime scenes, witnesses sob while testifying, and spouses fight bitterly for custody of their children.” The paper however posits that notwithstanding unpleasant situations judges come across, they are expected to decide cases before them on the basis of facts, the applicable law and rationality. From the judgement in question, I have not picked any element suggesting emotions may have influenced it. It is possible Judge Kebonang may have been emotional without showing it given how the DPP and its partners were intent on meting injustice of epic proportions on Butterfly and others.
In conclusion, I argue very strongly that given the facts as presented by Butterfly in her review application for discharge and acquittal, no other judge would have come to a different conclusion. DPP dismally failed for the longest time to make a solid case as to why charges preferred against Butterfly should stand and stick. The principle of he who alleges bears the burden of proof has not been satisfied. I also argue very strongly that an appeal will be a futile exercise if not a wild goose chase. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe.’ Covid-19 virus still remains our immediate threat.
