‘Butterfly’ acquittal haunts DIS
Mpho Mokwape | Monday July 25, 2022 06:00
The DIS, which has not given up on prosecuting Maswabi, had initially filed an appeal for both discharge and acquittal of her despite the case being classified as one that lacked sufficient evidence to warrant prosecution.
On Wednesday before a full bench of Chief Justice Terrence Rannowane, CoA President Tebogo Tau and Justices Sigh Walia, Isaac Lesetedi and Motswagole, the DIS said the High Court was wrong in so many levels to warrant Maswabi an acquittal when the case and its facts were not yet decided upon.
The intelligence outfit and the prosecuting agency, Directorate of Public Prosecutions (DPP), engaged attorney Joseph Akoonyatse who admitted that amongst many issues that emerged at the trial court they were not happy when Maswabi walked free and it meant that the unit will not get a chance to continue its prosecution against her.
“The main issue we have is the acquittal of Maswabi as we felt the case was yet to be decided on its merit when she filed an application for her charges to be dismissed,” he said.
Akoonyatse after numerous questions from the bench had conceded to many of the grounds of appeal they had raised against Maswabi and said that it was only the acquittal part that the bench should decide on.
Quizzed on whether he thinks the arrest and laying of charges against Maswabi were premature on the part of the DPP, Akoonyatse said he did not believe it was premature as they acted on the information before them at that particular time.
“I don’t think it was premature because Maswabi is not an ordinary person, she is a highly trained spy, she is supposed to be amongst the people and not be seen and that’s on its own was a threat to the DPP’s case. The fear at the time was that considering her line of work and the many passports that she had she will skip the country so there was a need to detain her as a way to refrain her and to get hold of those passports as part of her bail conditions,” he said.
Akoonyatse explained that the DPP only acted on the information that they were given and it was hard to scrutinise whether it was fabricated or not as alleged.
He pointed out that according to the calibre of the organisation that gave out that information and the investigating officer, there was no way the prosecution could have detected that the information was not viable as alleged.
On the questions why they would accuse Maswabi for having unexplained property when it was evident that the properties were not hers and not under her name, Akoonyatse argued that was to be determined at the trial.
“The unexplained property was to be determined at the trial. She was not the owner of those properties, but she was somehow in control of them and it was going to be explained further,” he submitted.
However, the judges were not convinced by Akoonyatse’s explanation to the extent of Justice Lesetedi asking how Maswabi was in control of properties not under her name.
“I mean some of the properties belong to government and one even belongs to the DIS, how she could have possibly have control over those?” Lesetedi questioned.
Meanwhile, Maswabi’s attorney Unoda Mack did not take kindly to the DPP saying the trial court made a mistake in acquitting his client.
Mack said the acquittal was as a result of the judge having scrutinised all information before him and decided that the only remedy was discharge and acquittal.
“The judge looked at the evidence before him and knew that the charges were as a result of fabrication. He had no choice but to acquit her. It was the most suitable remedy,” he said.
Mack argued that there was no way the case was to continue because they had argued the fabrication of evidence and that the DPP had failed to dispute that on many occasions that they had no choice, but to file for the dismissal of the charges.
He was adamant that the evidence was fabricated and that most of the properties she was accused of owning were not hers and wondered why the DPP would bring such a charge against his client when there was evidence before them that the properties had nothing to do with her.
On the condonation application that the State alleged that they filed and the judge failed to make any determination of it, Mack admitted that the judge indeed did not decide on it but however, referred to it as it was only addressed to points in limine by the prosecution.
“That application was not going to change much as it was meant for an affidavit for points in limine which the judge still referred to in his judgement,” he said.
Mack added the conduct of the DIS should not be tolerated by the courts and that they should be punished for such by awarding punitive costs against them.
The DIS had wanted the bench to review the decision that was taken by Gaborone High Court judge Zein Kebonang last year August to acquit and discharge ‘Butterfly’ of all charges.
The legal battle that started as far back as October 17, 2019 and regarded by many as involving alleged treasonous attempts across borders and some powerful individuals within the country abruptly came to a short end in August 2021.
This was after judge Kebonang dropped all charges amongst Maswabi, one being money laundering against the former spy officer on account that the prosecution lacked evidence against the allegations.
Judgement will be delivered on August 5, 2022.