Khama, Kgosi demand criminal charges docket
Mpho Mokwape | Monday November 14, 2022 06:00
The two co-accused are demanding the docket from the Directorate of Public Prosecutions (DPP) and Attorney General (AG). They have filed a review application against the DPP challenging their criminal charges related to the alleged possession of illegal firearms. Their argument is that the prosecution unit has failed to produce the record they used to come up with the charges therefore their replying papers should be struck out for non compliance. In a new filed interlocutory application, the pair wants the DPP papers set aside especially an answering affidavit as they had failed to deliver the record to the Registrar on time therefore compromising their review application case.
“The DPP and AG were not entitled to deliver their answering affidavit prior to their compliance and prior to the Registrar having complied with court rules and prior to the expiry of the stipulated time,” the co-accused said. According to an affidavit deposed by Khama, the respondents ought to have delivered their answering affidavit to their review application within 21 court days and they failed to do so. Khama also said as such they were not able to have copies of record as may be necessary for purposes of their review application to be made and furnished to the Registrar. "By reason of the respondents’ non compliance, we have been unable to exercise our rights. If we had that record within time by notice and accompanying affidavit to amend, add to or vary the terms of our original Notice of Motion and also to supplement our supporting papers,” he said.
The former president explained that where no record of proceedings was kept or was available, a written explanation for the lack of record together with such reasons was supposed to be done as required by law and also to notify their lawyers. On the issue of prejudice if the record was not dispatched, Khama said it was impossible for them to meaningfully challenge the decision by the DPP and the AG if they have not availed the information which they relied on to charge them. “As advised by our attorneys, that in an application of the nature the contents of the docket form critical part of the record. The prejudice that me and Kgosi will suffer is clear. While the respondents have pleaded their defenses with the benefit of the record, me, Kgosi and court have no record against which to test the propriety of the decisions sought to be brought under judicial review,” Khama noted.
He further pointed out that the result was a pervasive miscarriage of justice, which included denial of their rights such as to amend, vary, add to or supplement the review application papers following receipt of the record. Khama said as advised in cases such as theirs, the utility of review proceedings provide the necessary checks and balances by the judiciary on the lawfulness of decisions and conduct of public officers such as the Director of the DPP. “For the court to meaningfully exercise its supervisory powers of judicial review over the conduct of DPP, I am advised by counsel that it is in the public interest that an information and reasons relied upon by the DPP in taking the decision to initiate a prosecution must be available to the court and to me and my co-accused,” he said. The pair wants the court direct that the record of proceedings be availed to and for them to have access to it. On costs, Khama explained that they should not be put out of pocket unnecessarily by the respondents’ non compliance and that they ought to bear the costs of the application at appropriate scale even if they remove the complaint within the next 10 days and the application was not enrolled for hearing.
The co-accused men want an answering affidavit filed by the DPP set aside and be ordered to comply with the rules of court by dispatching the record of proceedings sought to be corrected or set aside within 14 court days from the date of the order that will be issued by court. Meanwhile, Khama and Kgosi face 20 and 13 criminal charges respectively ranging from unlawful possession of firearms, arms and ammunition and stealing by a public officer. They are challenging the decision to charge them and want the charges reviewed and set aside.