Police defy court order in exhumation case
Innocent Selatlhwa | Sunday December 17, 2023 13:31
The matter in which Pedzani's mother Sapelo is the applicant and Commissioner of Police, Phemelo Ramakorwana and Attorney General are 1st and 3rd respondents respectively, will be heard by Lobatse High Court judge Justice Michael Motlhabi today.
The case originated from the mysterious death of Pedzani, 22, on November 5, 2023, in a cell at Kutlwano Police Station in Francistown.
The Mosala family filed a lawsuit against the Commissioner of Police, the Director of Public Prosecutions, the Attorney General, and Dr Mukeba Nkashama, demanding an independent pathology test on their daughter's body. Makwati, representing Pedzani's mother, Sapelo Mosala, argued that the circumstances surrounding Pedzani's death warranted an inquest under the Inquests Act. He expressed concerns about the secrecy surrounding the autopsy conducted by Dr Nkashama and questioned the objectivity of a pathologist with ties to the Botswana Police Service.
The family raised questions about accountability, transparency, and the actions of those in power. Makwati listed numerous queries, such as the reasons behind Pedzani's detention, the mysterious disappearance of her bloodied clothes, and the contradictory versions presented by the involved parties.
The Mosala family had sought a court order, including the exhumation of Pedzani's body, a full investigation, access to evidence, an independent autopsy, and the setting aside of reports claiming suicide. They assert that the circumstances demand an inquest, accusing the Commissioner of Police of unlawful and irrational decisions. Motlhabi on November 30, 2023, ruled that the Commissioner of Police shall facilitate and conduct exhumation or cause to be exhumed the body of Mosala at their own cost within seven days from the date of the order. Moreover, according to Motlhabi's order, the Commissioner shall secure the services of a government pathologist to conduct a postmortem on the body of Pedzani within a reasonable time from the date of the order. "The Commissioner shall compile a docket and forward same to the Director of Public Prosecutions to decide after the conduct of the postmortem conducted pursuant to order above
. The respondents are to pay the cost of this application," Motlhabi emphasised.
However, as of December 12, 2023, the Police had not complied with the court order hence the contempt application. In her founding affidavit to the contempt proceedings, Sapelo Mosala states that despite the effluxion of 10 calendar days and eight court days since the order was granted, the First Respondent and the Second Respondent as the natural person with powers of Superintendence over the Botswana Police Service, have complied with the Court order.
“In essence; the First and Second Respondents have conducted themselves so lackadaisically that the order of court granted in the favour of the Applicant runs the risk of being a moot exercise and of no effect as the First Respondent and the Second Respondent have simply ignored it as though it was never granted.
Furthermore, the fact that the order involves the exhumation of a body which with every passing day deteriorates through decay and subjection to natural elements, renders this matter so urgent that any further delay or non-compliance cannot under no circumstances be countenanced," she said.
Mosala laments that it appears that from the time that the Order was granted by the Court, the Respondents made no efforts to treat the matter with the urgency it deserves, thus risking turning the order into just another ineffectual court order. “In the main application, I have argued that the circumstances surrounding my daughter's death warrant the institution of an inquest whose success may depend largely on the findings of a second pathology report as the original pathologist was conflicted.
The continued effort by the Respondents seems to justify my fears that they are hiding something because the order given by the Court is not impossible given the resources at the Respondents' disposal,” she states. She further states that urgency in this matter cannot be said to be self-created because the last day on which the First Respondent should have complied with the order was December 11, 2023.
She said the First and Second Respondents have not communicated any difficulties in obtaining the services of a government pathologist and have not informed her or her attorneys what their intentions are and when they intend to implement the court order. “If this matter were to be brought in the ordinary course, my fears that there was foul play in the death of my daughter will never be allayed.
The unmistakable intention of the Respondents is to frustrate the judgment of the court and to ensure that I do not receive justice as the mother of a deceased who died in mysterious circumstances in police custody. It is my apprehension that the First and Second Respondents seek to ensure that the body of my daughter decomposes to the extent that securing evidence from it will be near impossible,” she said. According to Mosala, despite several calls and attempts to engage with the Respondents through their legal representative, no answer has been forthcoming except to inform her attorneys that the order will be complied with in due course. “The matter was originally brought on urgent basis due to the nature of the relief sought, being the exhumation of a human body for purposes of examining it and giving a pathological report. The more time passes, the harder it will be for the body to be exhumed and examined as ordered.
The first Respondent and the Second Respondent have no reason to ignore a court order and go on as though no order was given and as though the matter is not urgent,” she states. Mosala further states that on December 7, 2023 when she was at her house in Bobonong, Inspector Malibamba of Kutlwano Police Station, accompanied by Ms Oabile and a group of at least four other police officers, called her to inform her that they were coming to her house to give her the postmortem report.
Mosala said she informed them that she already had the postmortem report that was given to her attorneys in court on November 29, 2023 and thus advised them not to come to her house. “Nonetheless, the police officers drove all the way from Francistown to Bobonong to give me a postmortem report that I already had and despite my protest. When Malibamba and his colleagues arrived, they informed me that they had come to comfort rne, but never said anything about the court order and when and how they intended to comply with it.
Since the police officers last came to my house on 7 December 2023, nothing has taken place towards compliance with the court order and my view is that the First and the Second Respondents' recalcitrance will ensure that any evidence that may have been secured via an autopsy on the body of the deceased is eroded by the passage of time,” she states.
Through their attorney Dr Tshepang Makwati, Mosala family wants a rule nisi issued calling on the First Respondent and the Second Respondent to show cause why an order should not be made on a final basis: Declaring that the First Respondent and the Second Respondent are in contempt of the order of the court dated November 30, 2023; Imposing a fine, such as is deemed appropriate by the Court, on the First Respondent and the Second Respondent, jointly and severally and compelling the First Respondent to comply with the order of the Court; Imposing a term of imprisonment, such as is deemed appropriate by the Court, on Ramakorwana, suspended on condition that the Second Respondent causes the order of Court of the 30 November 2023 to be implemented; Directing the Respondents to bear the costs of this application on attorney and own client scale; Granting such further and/or alternative relief as the Court deems fit. Meanwhile efforts to establish cause for delay from the Police proved futile. Deputy Public Relations Officer, Senior Superintendent Near Bagali said they were working on complying with the court order.