Basarwa want the state to drop case
Tefo Pheage | Wednesday November 16, 2016 18:28
Mokate Setshume, Xebetso Mokate, Kwaxara Kenenxo, Gantsi Sekapasamokawa, Mago Uxalao, Tale Mogatle, Qoma Kealeboga and Kelapile Gantsi in addition want the state to release their Toyota Hilux, which the state says they caught the accused using to carry the animals before they experienced a puncture.
In 2012, the eight Basarwa, through their lawyer Patrick Matlho applied for the release of their motor vehicle on condition that when the said motor vehicle is needed by the court during trial, the accused persons would avail it.
According to the state, the motor vehicle was seized, taken into keep and custody by the police officer who arrested the accused persons for it to be used as evidence.
The law relating to possible exhibits is that the court under Section 58 of the Criminal Procedure and Evidence Act has to ensure that such exhibits are placed under safe custody to ensure that there is no destruction of such by any other person before the matter is heard.
The then Gantsi senior magistrate, Thabo Malambane ruled that it is unheard of in criminal law that an accused person can be entrusted with an exhibit, which will form part of evidence against them in a criminal case.
“This will defeat all the purpose of ensuring that evidence is safeguarded to be used in a criminal trial. On the other hand it is not practically advisable to entrust an accused person with an exhibit, which will be used in evidence against him in a criminal trial. The stakes are high for such accused persons to tamper with such exhibits as a way of reducing the evidential value,” Malambane ruled.
The accused had also argued that they are innocent until proven guilty and thus are entitled to the vehicle, further adding that they will be prejudiced as they will not enjoy the day to day use of such a motor vehicle.
In response to this, the magistrate responded that the court shall ensure that the trial is concluded within a short space of time.
Five years later, the state is yet to try the eight, following the departure of Malambane to private practice. The case is yet to be allocated a new magistrate and the accused have instructed their lawyer to apply for a stay of permanent prosecution, which generally calls for the abandonment or withdrawal of the case as the state has failed to prosecute or try them within a reasonable time. One of the accused, Sekapasamokawa, died while awaiting trial.