It could be a master stroke. . .

Staff Writer | Friday June 4, 2010 00:00

Many have hailed the two as independent-minded judicial officers. The two occasionally  characterised as progressive justices who will help tilt the justice scales in favour of progressive jurists in a forest largely inhabited by conservative judges. 

For her part, Dambe has made history as the first DPP. Dambe's combative style in the courtroom has earned her admirers as well as detractors in the legal fraternity.

Dambe has prosecuted many cases and one which immediately springs to mind will be the corruption case involving the former director of Department of Roads, Kebonyekgotla Kemokgatla, who was eventually convicted.

In the case, socialite and businessman, Nicholas Zakhem, appeared and was forced to confess that he had engaged in fraud and tender racketeering.

As the head of the DPP, Dambe has presided over an era that witnessed the prosecution of some high profile individuals who in other jurisdictions would have been sacred cows that would not have been touched. The prosecution of former Permanent Secretary, Elvidge Mhlauli, is a case in point.

The current Executive Chairman of Public Procurement and Asset Disposal Board (PPADB), Armando Lionjanga, was prosecuted for corruption and was convicted by the trial magistrate.

During trial it surfaced that Lionjanga was a family friend of cabinet minister, Ndelu Seretse, but this did not deter the DPP from going ahead with the prosecution.

There is no doubt that one of the most surprising decisions ever to be made by Dambe was the decision to prosecute the late former Debswana Managing Director, Louis Goodwill Nchindo, socialite, kingmaker and the political umbilical chord between ruling Botswana Democratic Party and mining giant, De Beers.

It is now public knowledge that this is the case that divided government enclave in two and saw ministers and presidents pitted against each other. This is the case that continues to expose the vanity of power and influence.

This is the case that has put a spotlight on public policy and resulted in more skeletons tumbling out of the government wardrobe than any other.

Other ministers and powerful forces in government are said to have been against Nchindo's prosecution while some wanted him to be prosecuted.

It is now common knowledge that some ministers have since deponed to affidavits in support of Nchindo, while others including former President Mogae have given evidence against Nchindo.

For all this to have happened it was Dambe's call to make whether to prosecute Nchindo or not. Even with immense political pressure she wrongly or rightly decided to prosecute.

Attorney Boingotlo Toteng says Dambe could have buckled under pressure but she went with her professional conscience. This tigerish streak is what makes Toteng and others to admire Dambe.

All what Dambe has achieved and stood for could be erased at the stroke of a pen. Many are apprehensive even in their excitement.

Who will replace Dambe, seems to be the most delicate but crucial question to ask. That, to a lot of people, could be the master-stroke that could undo all what has been gained.

Some say it is possible that the new director of prosecution could come and make a different imprint on the office.Is it possible that the new DPP could come in and look at the cases that the prosecution is currently handling, say the Nchindo case for instance and decide that a lot of resources have been wasted on the case or that it is not winnable and as such prosecution on the case should be discontinued? I ask lawyer Unoda Mack hypothetically.

'You are in effect asking me what the constitutional role of the DPP is. The act clearly states that the DPP can commence or discontinue prosecution. To answer your hypothetical question, yes the DPP can decide to discontinue any ongoing prosecution,' said Mack.

The DPP's position is critical and that makes the person who appoint the DPP very important.

'What would they be looking for in quality? Maybe the person appointing is not interested in independence but merely want a sweetheart who can consort with the executive say to kill the John Kalafatis killers's case,' said one.

The other appointee to the bench, Lot Moroka, has also been celebrated as a very progressive magistrate, whose knowledge of the law and sense of justice is said to be beyond reproach.

During the Mhlauli corruption case which he presided over, Mhlauli's attorney, Advocate Francois Van Zyl, said he was impressed with Moroka. He said then he could not believe he was magistrate.

'He is so knowledgeable,' Van Zyl remarked then. Moroka has presided over most high profile cases including the Central Medical Stores, Daisy Loo, Mhlauli, Nchindo, Bakgatla. Even in the case of Moroka some say his departure could also be problematic.

Moroka is yet to conclude some major cases such as CMS, Nchindo, Daisy Loo, Bakgatla. With exception of the Bakgatla case many of the other marathon cases are at an advanced stage and his departure could lead to these unfinished matters being shunted to another magistrate and ultimately having to start afresh.

There is a precedent to this. When Former Regional Magistrate Terrence Rannoane was appointed to the bench he had some part-heard matters, including the Daisy Loo case. Initially the idea was that Rannoane would make time from the High Court to complete the unfinished matters. Defence lawyers in the Daisy Loo case stood their ground and argued that Rannoane, who had been appointed as a judge could not come down and preside in the same case he tried as a magistrate and then continue with the same case under the same process, only that this time his status would have changed after having been appointed as a judge. They argued that once someone has been appointed as a judge he ceases to be a magistrate.

Eventually Justice Rannoane had to recuse himself from the Daisy Loo case.

One of the lead counsels in the Daisy loo case, Unoda Mack explains the legal argument to Mmegi.

'Once you assume the position of judge you cannot be a magistrate anymore, that is essentially the logic. If you were to appeal the decision taken by a judge who was presiding over a magistrate court where do you go? Do you appeal to the high court to other judges over a decision that was taken by their colleague? No, this cannot happen. There are clear jurisdictions between the level of judge and magistrate,' said Mack.

Mack stresses that in the case of Moroka the caveat is the effective date.

'If Moroka's appointment takes effect, it will seem to me that he can no longer continue with magistrate work.To Mack, it is very clear that all the part-heard matters from Moroka will have to be started afresh before another magistrate.

This will of course have an implication on a number of variables.

What happens to the interests of litigants who will have spent huge sums of money and resource in the case? Does justice consider this at all?

In an attempt to get an answer we try and find out the effective date of the two judges. The response we get from the High Court public relations officer, Janet Mudongo, is that they will start as soon as they finish matters before them'even if some matters drag on up to next year'.

'I am not too sure about that,' Mudongo said. The reality though is that some of these matters could drag on for long.

Magistrate Moroka, or is it Justice Moroka, has however indicated that he wants to move with speed and complete all the matters before him.

It would however appear that this is not only a fantasy of conspiracy theorists that the appointment of Moroka and Dambe could be a master stroke.