Morupisi withdraws appeal, faces uncertainty
Mpho Mokwape | Monday March 18, 2024 06:00
There is a likelihood that the court might vary his sentence depending on the circumstances.
The state has not outrightly accepted Morupisi's desire to withdraw the appeal, citing that it offends the CoA rules. The former Permanent Secretary to the President (PSP) and now the Botswana Patriotic Front (BPF) chairperson has indicated his intention to withdraw the appeal through a notice of withdrawal dated February 29, 2024.
The appeal was filed concerning his conviction on two counts of corruption and one count of money laundering. He was sentenced on count one to two years' imprisonment wholly suspended for three years on condition that he does not commit an offence of such nature. Morupisi was also ordered on count two to pay the sum of P50,000, in default five years' imprisonment, while on count three, to pay the sum of P80,000, in default eight years' imprisonment. The fines in respect of counts two and three were to be paid within 90 days from the date of the sentence, November 30, 2022.
The Land Cruiser was also forfeited to the state. Morupisi’s intention to withdraw the appeal comes after the CoA bench comprising Court President Justice Tebogo Tau and Justices Lakhvinder Singh Walia and Baaitse Nkabinde, advised Morupisi through his lawyer, Busang Manewe, to consider taking more time to address the court on a point of law which allows the highest court in the land to either enhance or reduce his sentence. However, the state is not open to Morupisi’s withdrawal of the appeal. The Directorate of Public Prosecutions (DPP) filed a notice of appeal this month (March), opposing the appeal in terms of Order 43 Rule 4.
“After an appeal has been called on the date set for hearing, it may be withdrawn only with the leave of the Court, which shall not be granted if the court is of the view that it is proper to exercise any of its powers under Rule 32 to vary the conviction returned or the sentence imposed by the court below. Under Rule 32, it details that it is not open as of right to any party to an appeal to adduce new evidence in support of his or her original case but, for the furtherance of justice, the court may, and where it thinks fit, allow or require any new evidence to be adduced either per Part V of these rules or mero motu (meaning that the court decided on its own without being prompted by anyone else). A party may, by leave of the court, allege any facts essential to the issue that has come to his or her knowledge after the decision of the court below and adduce evidence in support of such allegations," the order reads.
“The court shall have power to draw inferences of fact and to give judgment and make any order which ought to have been made by the court below and to make such further or other order as the court may deem fit. The powers aforesaid may be exercised by the court notwithstanding that the appeal may be that part only of the judgment be reversed or varied and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from, or complained of the decision,” further reads the rule. The rule additionally states that the court shall have the power to make such order as to the whole or any part of the costs of the appeal and in the court or courts a quo as may be just and that if, upon the hearing of an appeal, it appears to the court that a new trial ought to be held, it shall be lawful for the court, if it deems fit, to order that the judgment shall be set aside and that a new trial shall be held.
It is alleged that the DPP is opposing the application in that Morupisi had failed to seek leave from the court for the withdrawal. Nonetheless, the hearing for the matter is scheduled for March 19 before the CoA bench. The former PSP’s appeal came before the court three weeks ago and before arguments for the appeal could start, the Judge President told Morupisi that she had noted that in his papers, he is challenging his conviction but, on his relief sought, he asks for the court to discharge and acquit him, which could also directly affect his sentence and not just his conviction.
That gave rise to the postponement of the matter to the April session, giving Morupisi time to consider his position. In the grounds of appeal, Morupisi argued that the High Court erred by failing to recognise that the charges that he had been convicted of were bad for duplicity and/or that there had been an improper splitting of charges.
“The three counts are bad for duplicity, which is prejudicial to me and I am entitled to acquittal. The court should set aside the charges,” he said. At the heart of Morupisi’s case is a Toyota Land Cruiser motor vehicle, which he is accused of purchasing with the Botswana Public Officers Pension Fund (BPOPF) funds. Morupisi was charged, tried, and convicted on an indictment containing three counts, namely, two counts of corruption and one count of money laundering. Further, Morupisi explained that all the charges speak to the Toyota Land Cruiser, which had been allegedly received by and converted to his personal use by the appellant or received as valuable consideration.