Mojanki's Urgent Bail Application Hits Brick Wall

Lebogang Mosikare | Monday November 18, 2019 11:14

 

Mojanki is accused of murdering Bokani Sox, a former nurse at Nyangabgwe Referral Hospital in January 2014. Making his submissions for the urgent bail while his trial is still ongoing, Mojanki said he religiously obeyed all his bail conditions that he was granted by the lower court before his case was revoked after being referred to the High Court for trial.

Mojanki said he has no business interests outside Botswana that may persuade him to abscond trial if he was granted bail.

“I am also a married man who has property in Francistown hence I won’t abscond from attending court if granted bail… My bail was just revoked only on account of the case being referred to the High Court and not because I violated any of my bail conditions.

I therefore beg this court to grant me bail and promise that I will not disappoint the court by not attending trial. I should also be presumed innocent before proven otherwise,” Mojanki pleaded.

He added that his trial could have continued on all its scheduled dates, but he once came to court and was told that the trial could not continue because the court was not sitting.

“I have not at any point contributed to the postponement of this matter. In most cases, the matter was postponed on account of the prosecution.”

Opposing the appellant’s bail, Carlos Diwundu of the Directorate of Public Prosecutions implored the court to consider certain factors before deciding to grant the accused bail.

“The court should consider the gravity of the offence committed, the evidence already given in court, whether the dates of the trial having been set may not delay the case if the accused is granted bail, character of the appellant and whether the accused may be found guilty at the end of trial,” Diwundu said.

When the trial started, Diwundu noted, the court took a decision to remand the accused in custody until the finalisation of the matter.

“There is no urgency in granting the accused bail because trial in this matter has already commenced and is about to conclude. This enjoins the court to dismiss this application because it is not urgent.

Dates for continuation of this matter have already been set and as such, we are of the view that giving the applicant bail may further delay this case,” Diwundu said.

After Diwundu finished his submissions, Justice Lot Moroka asked him to explain what he meant by the seriousness of the offence.

Diwundu replied: “The applicant is facing a case of murder and that on its own should be considered. Looking at the circumstances that took place after the offence was committed and the evidence already given in court, there is ample evidence that the applicant committed the offence.

That alone shows that he could possibly be found guilty of this offence. The overwhelming evidence may tempt the appellant not to appear in court as and when required to do so.

It is upon the court to consider if this may not cause the applicant to not appear in court. We therefore make an application for the court to dismiss this application.”

When delivering the ruling on the application, Justice Moroka said the appellant was charged with murder.

“The State has led its evidence and the prosecution’s case is nearing its end. This matter is expected to end during the next sitting of court.

Section 5 of the Constitution of Botswana says that all persons are entitled to liberty. However, that right is not absolute and can be taken looking at certain circumstances.

The Constitution says that liberty can be taken when the accused is suspected of having committed a crime. However, the courts are very slow to curtail liberty,” Moroka said.

“The concept of presumption of innocence is not static… To be granted bail in terms of Section 140 of the Criminal Procedure and Evidence Act, it should be shown that there is change of circumstances.

The fact that the court did not sit during the last scheduled sitting is not sufficient to grant the applicant bail. This application for bail cannot succeed. This matter is coming to an end and as the accused has said… his bail application is therefore refused.”