Murder accused Mujanki in fresh bail application bid
Taelo Stompie | Friday January 24, 2020 16:27
Mujanki’s current application was his second bid to regain his freedom. In November last year, Justice Lot Moroka dismissed Mujanki’s first application for bail pending trial.
Amongs other reasons, Moroka dismissed Mujanki’s endeavour to get bail because Mujanki’s trial was nearing an end with only two state witnesses left to testify against him.
When appearing before Justice Bengbame Sechele on Wednesday, Mujanki said his trial was supposed to continue on October 29, 30 and November 1 last year, but it did not proceed as scheduled. “After my trial did not proceed, I was not given new dates for continuation of trial and I don’t know when the trial will proceed. After Moroka dismissed my application for bail, I was told that my trial would be finalised in December last year to no avail till today.
My application for bail was refused in accordance with Section 142 of the Criminal Procedures and Evidence Act. I have been in custody for about nine to 10 months and I don’t know when my case would proceed,” said Mujanki in his spirited effort to regain freedom.
Mujanki, who is accused of killing Socks, a former nurse at Nyangabgwe Referral Hospital, added that he religiously abided by all bail conditions after he was granted bail at the Magistrates Courts and after his case was referred to the High Court.
“The State is opposing my application for bail based on the reasons advanced by the Investigating Officer (IO) in his affidavit. I am happy because in his affidavit, the IO never stated that I was a flight risk. The IO only stated that my case is about to come to an end and I should therefore not be granted bail. I disagree with the IO because he does not know how many witnesses I am going to call to testify on my behalf. Therefore, this means that I may stay in prison for even a longer period… The IO has also not said that I may interfere with the remaining state witnesses,” said Mujanki.
The prosecution, Mujanki said, also avers that he may not attend the continuation of his trial because he is facing a very serious offence of murder.
“…However, in his affidavit opposing my bail, he never stated how the State would suffer prejudice if I am granted bail. I pray with the court to consider that I shall be presumed innocent until proven otherwise as per the dictates of the Constitution of Botswana. I also submit that according to CP &E Act, this court is obliged to grant bail at any stage of trial even if one witness is remaining. In my case, I am of the view that there are change of circumstances that dictate that I shall be granted bail because I don’t even know when my trial would continue,” said Mujanki court citing case law.
The court, Mujanki cried out, should strike a delicate balance between his interests and those of the prosecution and society.
“The prosecution has said that I may not stand trial which is mere speculation because they have not adduced any concrete evidence to that effect… I am a resident of Monarch in Francistown and I have previously abided by all my bail conditions. I think Justice Moroka denied me bail because I have previously made an application that he should recuse himself from presiding over my current matter,” Mujanki said.
In response to Mujanki’s submissions, prosecutor Janet Mothowakgosi from the Directorate of Public Prosecutions (DPP) said that for the court to entertain Mujanki’s application, there must be change of circumstances.
“The applicant has not demonstrated any change of circumstances that warrant the court to grant him bail… The applicant’s case is at an advanced stage and is about to conclude. The prosecution is left with only two witnesses. I therefore, submit that since his case is about to conclude, the State has adduced overwhelming evidence that points to the accused as the one who murdered the deceased. Looking at that evidence and looking at the gravity of the offence which in some instances attracts the death penalty, there is a possibility that the accused may not attend court if he is granted bail,” said Mothowakgosi.
The applicant, Mothowakgosi enunciated, has said that he previously complied with all his bail conditions.
“However, his application for bail was revoked by the operationalisation of Section 142 of the CP &E Act. According to Section 142, such revocation does not in any way say that bail shall not be revoked because the accused has previously complied with his bail conditions.
The court can depart from Section 142 if there are change of circumstances but they have not been demonstrated in the present matter. Justice Moroka carefully assessed the applicant’s application before he came to a considered view that the applicant shall not be given bail,” said Mothowakgosi.
Mothowakgosi added that Mujanki’s application for bail was refused because his reasons for bail did not relate to Section 142 and had nothing to do with whether or not he religiously complied with his previous bail conditions….
“We therefore, submit that it would be in the best interests of justice that the applicant should be denied bail until the conclusion of this matter. It is desirable that he shall continue to be incarcerated to make sure that he attends court as and when he is required to do so. I have contacted the Registrar and Master of Court who told me the applicant’s case would continue as soon as the current vacation of the court ends,” said Mothowakgosi.
She added that Mujanki’s case was postponed in October and November last year because the court by then was not sitting. When responding to what Mothowakgosi said, Mujanki prayed with the court to quash Mothowakgosi’s submission that the State had overwhelming evidence against him.
“It is not upon the prosecution to say that the State has overwhelming evidence against me. That is purely the domain of the presiding judge to do so after the conclusion of this case. Also, the defence has discovered that the audio evidence that the State heavily relied on was not decreed into law when it was used in court.
The court should also be mindful that the onus of setting trial dates that are suitable for continuation of trial does not depend on the prosecution and Registrar alone. They also depend on whether the dates are suitable to my attorney which may not be the case. This is compounded by the fact that I may languish in jail for an even longer period if the dates that would be set by the Registrar are not suitable to my attorney,” said Mujanki. Justice Sechele postponed the matter for ruling to January 31 after Mujanki finished responding to the submissions made by Mothowakgosi.