THABO BAGWASI
editors@thepatriot.co.bw
A full bench of the Court of Appeal (CoA) on Friday morning unanimously thwacked and set-aside a series of orders by Justice Dr Zein Kebonang, made in favour of Welhemina Maswabi, a former spy in the Directorate of Intelligence and Security Services (DIS). The full bench, made up of President of the Court of Appeal (CoA) Justice Tebogo Tau, together with Chief Justice Terence Rannowane, Justices Isaac Lesetedi, Singh Walia and Tshepo Motswagole quashed a ruling made by Dr Kebonang on the 23rd of August 2021. Justice Dr Kebonang had ruled that the DPP had failed to adduce evidence against Maswabi and therefore reviewed and set aside its decision to prosecute the suspended intelligence agent.
The Directorate of Public Prosecutions (DPP) succesfully argued that Justice Dr Kebonang erred in law when determining that there was a decision to review when such had been withdrawn, erred in misdirecting himself that the DPP’s decision to prosecute is reviewable in circumstances of the Maswabi case and in determining criminal proceedings that were not before his court. In addition, the DPP believed Justice Dr Kebonang made orders beyond the purview of review proceedings.
Maswabi whose arrest made screaming headlines in 2019, used to navigate the theater of intelligence espionage under the codename Butterfly. She was initially charged with financing terrorism, possession of unexplained assets and wealth, and false declaration of a passport. The financing of terrorism charge was later withdrawn by the DPP after it failed to gather sufficient evidence against Maswabi.
The full CoA bench dismissed the ruling and the orders contained therein as incompetent and erroneous. Justice Tau also determined that section 150(4) of the Criminal Procedure and Evidence Act also does not confer any power on the High Court to acquit Maswabi on any charge where she had not taken a plea. “On the basis of the foregoing, it was incompetent for the High Court to acquit Maswabi on all charges levelled against her,” reads the judgment in part.
Furthermore, Justice Tau found judge Dr Kebonang to have overreached himself by revisiting and making inferences with regards to a charge of financing terrorism which had been withdrawn by the Directorate of Public Prosecutions (DPP) at the Broadhurst Magistrate Court, long before the case landed in his chambers.
The CoA also set aside Dr Kebonang’s decision to refer the Director of DPP Stephen Tiroyakgosi, Lead Investigator Jako Hubona and the then Principal Prosecutor Priscilla Israel to their superiors for disciplinary action and punishment as inappropriate since the trio were never availed the opportunity to address the platform where the issue was raised. “On the issue of referrals of the Director of Public Prosecutions (DPP), the Investigator and Prosecuting Counsel, to the supervisors and or higher authorities to carry out further investigations, disciplinary hearings and administer sanctions were appropriate, Counsel for the respondent conceded that it was improper for the court to issue an order without affording the parties an opportunity to address it where such an issue was raised mero muto(of one’s volition),” reads part of the CoA judgment.
Some of DPP’s prayers which won over the CoA was its petition to determine that Justice Dr Kebonang had misdirected himself in his finding that there was a decision to review when such a decision had been withdrawn and further that he had misdirected himself in finding that the DPP’s decision to prosecute Maswabi was reviewable in the current circumstances or at all. The DPP had also wanted the CoA to determine further that Justice Dr Kebonang had misdirected himself by ordering Maswabi’s acquittal and discharge even though she had never entered any plea to the charges before him or any other competent court for that matter.
It had further wanted the apex court to declare that Justice Dr Kebonang had erred and misdirected himself by making findings that are criminal in nature and beyond the ambit of the review proceedings before him and furthermore in his misdirection’s by interfering and overruling DPP Director Tiroyakgosi by withdrawing criminal charges against Maswabi, contrary to constitutional statutes.
DPP had also wanted the CoA to declare that Justice Dr Kebonang had erred in law by making orders that are incompetent and beyond the purview of the review proceedings with particular reference to Maswabi’s acquittal while she never entered a plea and his suggestion of sanction for DPP head honchos.
It remains to be seen if the DPP will resume judicial proceedings against Maswabi who the state accuses of unexplained property contrary to Section 34 (1) (b) of the Corruption and Economic Crime Act, and False declaration of a passport which contravenes Section 315 of the Penal Code.
The DPP was represented by Akoonyatse Attorneys while Maswabi was represented by veteran criminal lawyer Unoda Mack and Victor Ramalepa.