Bangladeshis accused of stealing TVs denied bail
Lebogang Mosikare | Friday November 9, 2018 12:51
The men, Mustafa Kamai Sajib and Moshair Hossain are charged with seven others who are not party to the urgent bail application launched by the duo. The Bangladeshis, Hossain and Sajib, special constable Abednico Mothaba, Zimbabwean Joseph Kateya, locals Lazarus Bhebhe, Kabo Ngwenya, Khumo Tibone, Edwin Sereme and Chesta Mehlwa Tshelele are charged with three counts of breaking into and stealing goods, particularly plasma television sets of various types from Nihama Pty Ltd and Super Life Trading storeroom on October 9, 20, and 31, 2018.
In total, the accused are alleged to have stole goods amounting to close to P420,000.
Passing judgement, Justice Gaolapelwe Ketlogetswe said Hossain avers in his petition that he has been residing in Botswana for the past 18 years. “He also avers that his wife resides in Botswana together with his two children. He further states that he would abide by any bail condition, which the court may impose. The personal circumstances of Sajib are more or less similar to those of Hossain… Both petitioners admit that they were arrested and found in possession of properties allegedly stolen in various warehouses in Francistown in a spate of alleged robberies and breakings,” Ketlogetswe said.
Justice Ketlogetswe also stated that the petitioners, however, aver that they bought the allegedly stolen properties from their co-accused in the main matter unbeknownst to them that the said properties were stolen. The basis of the state opposition Ketlogetswe said, if regard had paid to the head of argument filed by counsel for the respondent, is three-pronged.
“Firstly, the state argues that the investigations in the matter are still fresh and incomplete; secondly it is argued that the petitioners may interfere with witnesses, and lastly, the offences with which the petitioners are charged with are serious and that the properties are of a substantial value. The state also argues that some of the stolen goods may have found their way out of Botswana to Zimbabwe and Zambia and that the police, with the assistance of Interpol, are still to liaise with their counterparts in Zimbabwe and Zambia to assist in tracing the missing stolen properties, Ketlogetswe said. On the other hand, Ketlogetswe said that counsel for the petitioners countered that the petitioners, being persons not yet tried are innocent and generally entitled to their liberty until proven otherwise.
Justice Ketlogetswe further stated that the position of the law on bail in Botswana is that a person who has been charged with an offence and has not yet been tried and convicted by a court of competent jurisdiction is presumed innocent and generally entitled to enjoy his or her liberty as guaranteed by the Constitution. “Such a person is generally entitled not to have his liberty interfered with and to be allowed the opportunity to carry out his or her lawful activities,” he said.
“…I wish to add that in balancing the interests of the petitioners and ensuring that they are enabled to enjoy their liberty as guaranteed by the Constitution of Botswana, I also have to take into account that the property alleged to have been stolen in this matter is still being traced. The state has argued that the petitioners are likely to interfere with police investigations in relation to the recovery of part of the alleged stolen property,” Ketlogetswe said. He added: “There is, however, paucity of detail as to how the petitioners would, if released on bail, prevent the police from recovering the alleged stolen property.
“There is also paucity of detail as to the extent of the alleged property, which is still to be recovered. What is, however, clear is that part of the stolen property was recovered from the petitioners. The petitioners agree that that is so although they have proffered an explanation for their possession of the alleged stolen property.
They state in their petition that they purchased the properties from their co-accused without knowing that it was stolen property,” said the judge adding that this explanation is not a matter open to his court to decide on.
I think at this stage, Ketlogetswe noted, it suffices to state that the property alleged to have been stolen is substantial.
“…I also do not agree with the suggestion that the petitioners are likely to abscond if granted bail. The petitioners have stated that they have families within the jurisdiction of the courts of Botswana including children who are attending school. “This has not been disputed by the State nor has it been shown on a balance of probabilities that adequate bail conditions cannot be imposed to ensure that the petitioners are available to attend their trial,” Ketlogetswe said.
Ketlogetswe continued: “I have considered whether given the substantial number of television sets and accessories allegedly stolen, the State would not be prejudiced in its efforts to recover such properties arising out of the petitioners interfering with such efforts and I am satisfied that on a balance, the risk is there, though not in substantial proportion as to warrant an indefinite incarceration of the petitioners in prison custody.”
The petitioners, Ketlogetswe noted, are due to attend trial court on November 12. “The state has not indicated that by that date they would have concluded their investigations nor covered sufficient ground so as to be agreeable to the petitioners being released on bail. The State seems to be holding the view that even when investigations are complete, the petitioners are a flight risk. I do not agree with this proposition because no sufficient facts have been put forward to support it. In the converse, the petitioners have demonstrated that they would be available to stand trial,” the judge said. The power of the court to grant bail, Ketlogetswe explained, is a discretionary one.
“And such discretion has to be judiciously exercised taking into account all the competing factors as between the petitioners’ right to liberty and the interest of the State amongst other things, to fully and adequately investigate alleged crimes without hindrance. In this case whilst I agree that the State should be allowed the opportunity to investigate without fear of the petitioners interfering with such investigations, I do not agree that no time frame should be imposed on the state,” Ketlogetswe said.
The petitioners, the judge said, have argued strongly that conditions in prison are highly prejudicial to them especially in relation to diet they should on religious grounds take. “They argue that there is no halal food in prison or that they are not afforded such diet. Such are the hazards of the trade, to wit, prison life. The State on the other hand has submitted that the State is in a position to avail halal diet required by the petitioners. I think that the State would have to be held to its undertaking,” Ketlogetswe said.
“The conclusion I have arrived at is that this is a proper case where this court should exercise its discretion in favour of not granting bail to the petitioners at present. The order I make is that the final decision on the petition for bail pending trial be and hereby deferred to November 14 to enable the State to finalise its investigations,” Ketlogetswe said.
Attorneys Wada Nfila and Mbiganyi Mhizha represented the petitioners while Odirile Kahengua appeared for the prosecution.