Former clerk beats govt in theft case
Lebogang Mosikare | Wednesday October 21, 2015 16:59
Delivering judgement on Monday, Justice Lot Moroka said that the basis of the application is that there was an inordinate delay that renders the trial fair, the delay induced prejudice to her in the prosecution of her defence and that the delays in her prosecution contravenes section 10 (1) of the Constitution (the right to be tried within a reasonable time) which the prosecution opposes. Moroka said that the first issue to be determined is whether there has been delay in the prosecution as a matter of fact.
“The answer to this question is in the affirmative and then we go to the next question of whether the delay occasioned prejudice to the applicant in a myriad of ways. To permanently stay prosecution before trial begins requires careful evaluation of the entire conspectus of events from the time the applicant is warned and cautioned of the offence to the time the application is made,” Moroka emphasised.
He said that it is common cause that on March 6, 2007, assistant superintendent Tlotlanang Mogwase warned and cautioned the applicant of the charge of stealing by person employed in the public service.
Moroka added that after questioning, the applicant was released and informed that she would be summoned to court for formal indictment.
Moroka said that the police took her physical address and cellular phone numbers.
“Shortly after being warned and cautioned of the offence, the applicant was suspended from work and was subsequently dismissed. Seven years were to pass without hearing from the police. On August 25 in 2013, she was formally charged with five counts of stealing by person employed in the public service,” said Moroka.
The prosecutor, Moroka said, acknowledges that there has been delay.
“He says that in 2008 he was transferred from Central Police Station in Francistown to Kutlwano Police Station. He left the case docket at the former station. He says he was released to continue investigations in July 2009 and handed the docket to the prosecution in that year,” said Moroka. Further, Moroka said that in 2010, the docket was returned for further investigations.
“Mogwase said that he only returned the docket in 2012. The prosecution then sent a savingram to him on June 12, 2012 instructing him to trace the appellant. He said he has now been transferred to Gaborone-West Police Station and did not see the savingram. Central police received two more savingrams. He said the next time he heard from the prosecution was when he was called to court to explain the delay in prosecuting the case,” said Moroka.
The respondent admits that there has been undue delay in prosecuting the matter, but argues that the prejudice can be cured by other remedies. A determination on prejudice must be all encompassing and must include the nature and seriousness of the charge, public interests and the personal interests of the accused, said Moroka.
“An order for permanent stay of prosecution must not be made lightly. It must be arrived at only in cases where the continuation of trial would visit the accused with such prejudice that the fairness of the trial would be highly compromised. Our courts have held that criminal charges inevitably subject accused person and her family to social stigma and ostracism. The longer the trial, the longer the anguish,” said Moroka.
He added that the applicant lost her job and she had her life frozen for seven years during which she lived under the shadow of prosecution. To permit the continuation of prosecution of the applicant given these circumstances would be in clear violation of section 10 (1) of the Constitution. The application for permanent stay of prosecution in respect of the applicants succeeds, said Moroka.
“The applicant is freed of all charges pertaining to this application,” said Moroka.
Attorney Tumisang Mokobi represented the applicant, while Mpho Letsoalo represented the state from the Directorate of Public Prosecutions (DPP).